Mr. O'Connellrose, in pursuance of the previous notice he had given, to move for an inquiry into the conduct of Baron Smith, an Irish Judge. The hon. and learned Member said, that his object in the Motion he was about to bring before the House, was one which he was not presumptuous 273 enough to imagine would engage the serious attention of Gentlemen not immediately connected with Ireland. It was, properly, an Irish question, and related to the liberties, property, and lives of the people of Ireland; and he much feared, that it was one of those which, for some reason or other, were considered to be beneath the dignity of that House. Did the Motion, with which he should conclude, relate to an English or a Scotch Judge, the discussion upon it would not probably occupy much time, as Ministers would not attempt to interpose between the Judge and the demand of the people for investigation. It was a great misfortune, that the Members of that House did not understand the situation of Ireland, and the importance of the subject in the minds of the Irish people. If, in this country, a barrister were to stand up in Court, and to say to a Special Jury, that the case they were about to try was one of the utmost importance, arising, say, out of a stoppage in transitu in a bankruptcy case, adding, that it was one in which the assistance of a Judge was particularly required, but that the interference of the Judge then on the bench could not be had with safety, and that if he interfered at all, it would be to do injustice to the parties;—if a Barrister in England had stood up and made such a declaration, every one would admit, that the Judge would be justified in committing him to prison for his contempt. But in Ireland, it seemed, it was far different, for in Ireland he had done that, and the only remark made by the Judge was, that he was a very comical fellow. His reply was, that he spoke more in melancholy than merriment,—that what he had asserted was well merited,—that the Judge did not dare to send him to gaol,—that what he had advanced was justified by the fact, and necessary in the discharge of his duty to his client. Yet, for nearly three years after he made that observation to the Jury, the same Judge continued on the bench of Ireland. He repeated, then, that the Members of that House were unacquainted with the state of Ireland, and grossly ignorant, or grossly careless, of the feelings and situation of the people. They left the administration of the law, therefore, in the hands of those whom it was impossible the people should respect, and in whom they could not place the slightest confidence. The case he had to bring forward against Baron Smith was of a 274 double description: first, he charged him with the grossest neglect of his duty as a Judge; and, secondly, with endeavouring to compensate for his deficiencies as a Judge by becoming a violent politician. It was impossible, that any hon. Member could impute to him (Mr. O'Connell) any motives of partizanship or political enmity, because, when Baron Smith was in Parliament, thirty or forty years ago, he had voted for Catholic Emancipation. He was impelled, therefore, merely by a sense of duty towards the public, towards the people of Ireland, and towards his own constituents in particular. To the learned Judge, for his former conduct, all the Catholics of Ireland owed a debt of gratitude; but his late conduct seemed only calculated to reanimate, to aggravate, and inflame the religious animosities he had formerly endeavoured to extinguish. With the full sense of what he owed to Baron Smith, he was anxious to bring the case of one Irish Judge before the House, because it would operate beneficially as a hint to the remainder. In Ireland they remained so long upon the bench, that most of them were unable, from age, to discharge the duties imposed upon them. It was the worst economy to make the retiring salaries of Judges infinitely below the sum they received while they continued to act; and no money could be better laid out in Ireland, possibly in England too, than in annually devoting a sum to buying off Judges who had grown old and infirm, and were no longer competent to perform their duties. While the present great difference existed between the salary and the retiring allowance, the Judges would remain on the bench while they could sign the receipt for their salary. The first accusation he made against Mr. Baron Smith was, that he did not attend in Court scarcely any day before half-past twelve o'clock, or from that time to four o'clock; that his state of health was such that it enabled him to sit out the night; but did not allow him to rise by day. His hon. friend, the member for Monaghan, (Mr. Perrin) obtained a return last year, which, though there existed some defects in it, showed how completely unfit this judge was to remain upon the Bench. The clerks of the Crown had been directed to make out a return of the number of hours during which the Judges upon the Ulster Circuit had sat each day during the Circuit. 275 He, only, however, brought before the House the county of Armagh, and the county of Down. The clerks of the Crown had given these returns only from recollection, and yet, for the county Down, these returns showed that the judges did not sit in the Crown Courts sooner than eleven or twelve o'clock each day, bringing it down pretty fairly to twelve o'clock. Now, he submitted to the gentlemen whom he was addressing, that twelve o'clock was too late an hour for a judge to enter the Court. The return stated how many prisoners had been tried between six o'clock in the afternoon, and six o'clock in the forenoon; and they had for one county fourteen prisoners tried between those hours. The Judge had sat till six o'clock in the morning, and he was ready to prove, that the trial of more than one of those prisoners commenced after twelve o'clock at night. Could any thing be more disgusting to persons having regard for the decent administration of justice? What was the situation of the wretched prisoners? They were exhau ted waiting all day, and rendered incapable of defending themselves. The jury were half asleep; the witnesses had all dined and refreshed themselves, till they were almost unable to give evidence. Criminals escaped, for, out of the fourteen prisoners only four were convicted. Was not this a state of things fit to be inquired into? The consequences of the irregular habits of the Judge, were not less fatal in the administration of civil justice. At the last sittings at Nisi Prius after Michaelmas Term, he (Mr. O'Connell) attended as counsel, and could state from his own knowledge, that Baron Smith usually came into Court at about twelve or one o'clock, and sometimes at half-past one. The consequences might be illustrated by what had happened in the case of a client of his. A merchant residing at Liverpool, had delivered a quantity of coals to a Steam Company at Drogheda, and ultimately was obliged to bring an action to recover the value of the coals. He brought over twelve or fourteen witnesses from Liverpool, whom he was obliged to maintain in Dublin, during the whole of the sittings, and at the' end of them had the mortification of taking those witnesses back, without having had his cause called on, because Mr. Baron Smith never came into the Court till past mid-day. He might be told, that it was not the Baron's duty 276 to try this case, but the duty of the Chief Baron. In the first place, Baron Smith ought not to have undertaken the task, unless he meant to perform it; and, in the next, it was not a matter of choice; for the Lord Chief Baron being ill, it was his duty to take his place, unless he was himself ill. But ill he did not pretend to be. He merely committed this outrage upon all notions of conducting business—an outrage which would not be endured in this country—in pursuance of what with him was a long-established usage. He once went circuit with Baron Smith. He recollected that the Judge who presided in the Civil Court was a very early riser, and generally went into Court so early as eight o'clock. Baron Smith seldom came into Court until half-past three o'clock. Thus he had time to attend to all the civil business in Baron Fletcher's Court, who generally rose at four o'clock, and was then in time for the criminal business in Baron Smith's court, where they generally worked away until three o'clock in the morning. In the Court of Exchequer in Ireland, Baron Smith seldom came into Court until a very late hour in the day. He then appeared to write a letter or two, and then generally went away, appearing to take very little trouble about the business that might be going on. He felt himself bound to claim inquiry upon these points. He did not think that the House could refuse that inquiry. But what would they think of the man, who having thus neglected his duties as Judge, invested himself upon the judgment-seat with the functions of a politician? It happened, that at the close of the last year, Mr. Baron Smith was appointed to preside at the Commission Court in Green-street. In Dublin, a Commission sits four times in the year, though here it sits eight times in the year. But in December 1833, it happened to fall-to Baron Smith's lot to be appointed one of the Judges to open this commission. He begged to call the attention of the House to a consideration of the state of the calendar on this occasion. What was the fact? That in a population of upwards of 327,000, there were not more than about seventeen offences on the calendar. There were about four cases of cow stealing, three or four of petty larceny, three of pig stealing, a case of bigamy, and an attorney to be tried for swindling. Surely, if ever there was a case in which 277 a Judge might feel himself at liberty to repose for the greater part of the day, this was one. He had no law to explain. There was nothing in any of the cases about to come before him calculated to require any lengthened or laboured exposition. But the learned Baron delivered a long charge, which, as he was prepared to prove, the Judge wrote out with his own hand, and sent to the newspapers. It was a long and lengthy essay, in which the Baron introduced every topic under Heaven but those which he might be expected to advert to. He talked of everything but the matter in hand—suggested that mistakes had been made by the measures of his Majesty's Ministers—answered speeches that had been made in Parliament—talked of, and praised the propriety of his active vigilance for the last three years, and went on to the utmost of his ability to revive and reanimate the religious animosities of that country. The learned Judge had been an advocate for Catholic Emancipation; that circumstance, so far from lessening the mischief of his conduct, was calculated to give his words still greater effect. He began by saying, 'Gentlemen of both Grand Juries—When the state of the calendar, or when (connectedly with the administration of justice) the situation of the country seemed to call for admonition from the bench, I gave utterance to what appeared to be requisite and useful.' He (Mr. O'Connell) called upon the Law Officers of the Crown to say, whether this was language which should be used by a Judge? Now, he admitted that the Judge had a right to address the Jury upon the state of the calendar, but nothing more. The Judge had nothing whatever to do with the state of the country. But the learned Baron went on to say, 'On the other hand, when no such necessity existed, I did not consider it as incumbent on me to go through the mere ceremonial of a charge; tendering to Grand Juries information of what, in fact, they knew already; stringing together a chain of nothings, and consuming time that might be more advantageously employed. Of the application of those rules, a consequence has been, that I have seldom charged Grand Juries during the thirty years, for which, in round numbers, I have had a seat upon the bench. To this silence there have been exceptions, occasional but rare. For example, in 278 the last two years, I scarcely lost an opportunity for making some monitory observations from the bench. When the critical and lawless situation of the country did not seem to be generally and fully understood, I sounded the tocsin, and pointed out the ambuscade. Subsequent events deplorably proved, that I had given no false alarm. The audacity of factious leaders increased from the seeming impunity which was allowed them. The progress of that sedition, which they encouraged, augmented in the same proportion; till on this state of things came at length the Coercion Bill, at once to arrest the mischief, and consummate the proof of its existence and extent.' He (Mr. O'Connell) denied that it was the duty of a Judge to sound the tocsin; he ought not to become a bell-ringer. It was not compatible with the duties of his office, to expound politics from the bench, when it was his duty to administer law. He would ask the House of Commons, whether it was necessary that a Judge should become the political guardian of the State? [Hear.] An hon. Member cried "hear," in admiration of that passage, but he forgot that the very person who uttered it might be called upon to try the factious leaders. A prisoner brought before Mr. Baron Smith under such circumstances was in the situation of a man playing against a gambler who used loaded dice—the Judge appointed to try him would have already condemned him. He was obliged to the hon. Member whose cheer had elicited these observations. The learned Baron went on to say, 'Two years ago I very unequivocally pronounced, that tithe resistance was but one of three Cerberean heads, of which rent and tax-resistance formed the other two; that law, property, and the Constitution, where, in fact, what this triple monster bayed, and would, if placed within its reach, devour; but that a force less than Herculean, if applied with firmness, and in time, would drag him into light, and tame him into submission; and withal, that he would be far more surely quelled by coercion than by sops.' There was an admission on the part of the learned Judge, that he had been a politician two years ago. He asked, if it were fitting in a Judge of the land to be making these observations about tithes, rents, and taxes, and attributing to individuals motives of 279 the worst kind? Was that judicial?' Was that the proper conduct of a Judge? [The hon. and learned Member then read another extract from the learned Baron's charge—where he declared, that the Constitution had been defunct in Ireland—and he expressed his happiness at his warnings being attended to by the Government, and a loyal public] He would have the whole of the charge read by the Clerk at the Tables. He would shortly state what it contained, and read one or two passages more from it. Not content with this, the learned Baron next attacked his hon. friend, the member for Drogheda (Mr. O'Dwyer) for having said in that House, "that Baron Smith would sacrifice truth at any time to antithesis." He then took up the cudgel for his learned brother, Baron Pennefather, and said, "that any one who impugned that learned Judge's motives, or canvassed his conduct, would be doing wrong," and then he proceeded to justify the actions of that gentleman. Now, all that might be very good for a political dinner speech, or a contested election speech from a window, or a housetop, or the hustings, no doubt it would; but that happened to be exactly the reason why it was, of all others, the description of language most unfitted for the mouth of a learned Judge seated on the bench. Baron Smith then went on to discuss the right of the subject to petition Parliament; and complained, that the conversations which occasionally took place in that House were calculated to degrade the dignity of the judicial bench. What sort of language was this for a Judge. The bench were responsible to that House. It was an important part of the duty of that House as Representatives of the people, to watch over the due administration of justice; and more than all to see that its source was untainted by prejudice. If then the House believed what he had already stated, respecting the hour of the night when the Judge in question usually thought fit to enter on the trial of capital felony, was it not, he would ask, a dereliction of duty in them if they did not exert their utmost vigilance on the subject? The learned Baron continued, 'Let all who thought it expedient further to degrade the dignity of the already mob-disparaged and affronted law—and, for example, to render a judicial office, one which no eminent Barrister, who could ably discharge its duties, would look up 280 to as worth acceptance—let all who held, that shabby parsimony must conduce to public good—consistently stickle and petition for the impoverishment of the bench.' It would be remembered, he had no doubt, by the House, that a Motion for reducing the Irish Judges was then before it. This was an allusion to it, and a strong one it was. The Baron then went into a long statement of the objects of those exerting themselves to procure relief for the country, and said, 'Tithes, rates, rents, salaries, privileges, old institutions, and establishments, public taxes! I will stop here—[the hint was not insignificant.] But will those to whose aims I am adverting do the same?—Not of themselves I am afraid. But the wisdom of our Government, and the vigour of our law may discountenance their temerity, and with a firm hand arrest their progress.' The Baron pointed out a Cabinet Minister as concurring in the conspiracy to get rid of rents and tithes, and then went on, 'I conceive the epidemic of our day to be a turbulent abuse of the valuable right of petition; making it a channel for the conveyance, not of submissive prayer, but of refractory invective, and insolent dictation. This abuse seeks to turn that which it so distorts (as was done about two centuries ago) into the means of demolition; and which Shakspeare, I think, has called hurly-burly innovation. An appetite for this latter, seems the main spring of insurrectionary movement at the present time; while those who instigated it, might be turning the restless impulse to purposes more regular and systematic, and more their own. But they could not ride the whirlwind, if the wisdom of our rulers would not suffer it to rise— nor could they direct and point a storm which that wisdom would have allayed. Had he exaggerated the distortions of the right of petition at the present day?' But that which he (Mr. O'Connell) most specially objected to was this passage, 'The Catholic party in this country have got all they want as a particular body or persuasion. Why, then, such language, and such efforts by their clergy? Why such abuse of ours, and of our Church and faith? Why such loud delight at a diminution of the number of our Bishops?' The latter clause of the sentence, be would take leave to say, was the contrary of the fact. The Catholics 281 of Ireland did not rejoice at the diminution in the number of the Protestant Bishops, for this reason, that it did not afford them any relief from their burthens, while it lessened their resources, as the income of these persons would be no longer spent among them, and it would be remembered, he trusted, by the House, that he had been one of the first to stand up and exclaim against it. But the learned Baron added, 'Why such satisfaction at the wane of Protestant seminaries and education, and at the proceedings against bodies supposed to be animated by a Protestant spirit, and to cherish and sustain it? Why, in short, such a symptom of exultation at everything that then seemed calcalated to depress the Established Church, and to raise the Roman Catholic religion on its ruin? The Catholics (said the Baron) are triumphing over you, they delight in the diminution of your Bishops; they exult in the wane of your establishments, and the decline of your education societies.' This was the part of the charge which he had specially objected to, because it did not become a Judge to be a politician in the first instance; and of all things, did it least accord with the faithful and impartial exercise of the high functions he was daily called on to perform, to be a polemic as well as a politician. Why should the bench, sacred to justice and right, be made the arena for political and polemic discussion? Was it to be supposed that the interests of the Protestant wealthy, and the Catholic poverty stricken, portion of the community, could be equally balanced by any man, who, from the judicial bench, in his capacity of a Judge, could propound such sentiments, and make such monstrous assertions? Would it be permitted by that House, that any Judge should sound from his high seat the tocsin of religious animosity, and excite, by his language, to strife of the worst, because of the most remorseless description—calumniating the Catholic clergy and the Catholic people, who were not before him. It was quite clear that the language was that of a scholar and a clever man, but it was just the sort of language which was calculated to revive the dying embers of religious animosity in Ireland. He would put it to the House, what it would do, had a Judge in England thus expressed himself. He would ask any Member, how he would have voted upon a question for inquiry in 282 such a case? Had it been the first, the ablest Judge upon the bench, he would not have been screened from the consequences of such conduct. Had he deserted his duty to sound the tocsin of political and religious strife, no Member in that House would have got up to defend or justify, or explain away his conduct. And was he to be told, that this had occurred in Ireland?—That it was only the liberty and lives of Irishmen that were affected by such charges as these? Would the House allow the Government, on this plea, to stand between this man and inquiry? Upon what principle could inquiry be resisted? Would it be by denying the hours at which this Judge sat to try prisoners? That he pledged himself to prove. Would it be by affirming that politics, and such politics too, befitted a Judge? That could not be; it was impossible to suppose such a justification. The Government, and the House, could not refuse to take away from the Irish people the notion that their liberty, and property, and lives, were placed in the hands of these fierce political partizans. Would the House, he again asked, refuse him a Committee of Inquiry? It might be said, that compassion should be shown to a gentleman of Baron Smith's age. Why, if his (Mr. O'Connell's) complaint were one for mere neglect of duty, there might be some reason in that, but it was of the opposite description. His complaint was not against the Judge for inactivity, but for his introducing activity where he ought to be passive, and showing himself a partizan where he ought to be impartial. What was to become of the Judges if conduct like this should be tolerated? The Judges diffused the waters of healing through the land, when they administered justice with impartiality; but when they became the partizans of faction, and the ministers of passion, they diffused nothing but streams of the most noxious and deadly character, producing infection and death. Oh! it made men reckless when they felt that there was no impartial protection for life and property. Come forward with a Coercion Bill, and blame the poor peasant because he took the law into his own hands, and inflicted that punishment which he could not expect at the bands of his Judges! Could they blame the peasant for shedding the blood of his fellow-man, though in an unjustifiable, and execrable manner? To 283 whom were they to go? But, perhaps, the Government would take another ground, and say, that there was great partisanship in Ireland, that there was much rancorous feeling there. He would concede that. But, there should be one green spot kept sacred—the judgment seat. What should be the conduct of the Judge?—It should be to put down such feelings—to judge impartially between parties—between those engaged in the bitter strife. Bat, if, instead of that, the sacred functions of the Judge, and the majesty of the law were to be desecrated—if the Judge were to pollute his robes, and then throw them off, to assume the riband of partizanship—what could possibly be anticipated but the most fearful consequences? Let the House refuse the inquiry, however, and he (Mr. O'Connell) would taunt them with this—that he had brought a strong case before the House; and they had refused an inquiry into the facts, though, if true, they were most important in their consequences. But why should the House or the Ministry object to inquiry? Why should the Government steep their characters in the filth of this political disquisition from the bench? Perhaps the report of the speech he had referred to exaggerated the truth; perhaps it had not been sent to the newspaper by the Judge himself, though that he had pledged himself to prove; still he only asked for inquiry; a triumphant acquittal for the Judge, if he had stated what was wrong; an adequate punishment for the Judge, if he were right. The hon. and learned Member concluded by moving, "That a Select Committee be appointed to inquire into the Conduct of Mr. Baron Smith, in respect to the discharge of his duties as Judge, and to the introduction of Politics in his Charge to a Grand Jury."
§ Mr. O'Dwyer, in seconding the Motion, begged that the House would allow him to explain a part of the learned Baron's charge affecting him. He had never accused the learned Baron of deliberate falsehood, although it was possible that he might have used a word resembling that in sound. But he said, distinctly, that he had never made such an assertion. He believed the noble Baron to be incapable of sacrificing truth to any thing.
§ Mr. Littletonsaid, that it had not been his lot, during the time that he held a seat in that House, to take part in a discussion which gave him so much pain, as that which 284 the hon. and learned member for Dublin had opened. When the hon. and learned Gentleman gave notice of his Motion, it was expressed in terms to which he could not be brought to accede. As entered upon the Books, the hon. and learned Gentleman's Notice was, to move for a Committee of Inquiry, with a view to the removal of the learned Baron from the Bench. If the hon. and learned Gentleman had persevered in bringing forward a Motion in the same terms, he should have felt it to be his duty to oppose it; but after the Motion had been made in such terms as the hon. and learned Member now expressed it, it was due to the people of Ireland, to the character of the House, and to Ministers, to concede the inquiry. In abstaining from all opposition to the Motion, he felt the greater pain, because his hon. and learned friend opposite (if the member for the University of Dublin would allow him to call him so), animated, no doubt, by a feeling of kindness to Baron Smith, and having a full conviction that this was a case of unnecessary hardship, had asked him, what course he should take in respect to the Motion of which the hon. and learned member for the City of Dublin had given notice; and he, looking to the terms in which the notice was expressed, did say, that he would oppose the Motion, although he spoke at the same time in terms, he would not say of severe, but of sincere, animadversion of the conduct of Mr. Baron Smith. But, after the evidence which he had heard, he could not now persist in that intention. He certainly was aware of the Return moved for by the hon. and learned member for Monaghan; but he had not had, till that moment, an opportunity of seeing it, and was not before aware of the nature of the evidence it contained, or how far the learned Baron had carried his practice of sitting late. There could not, possibly, be any doubt, that it was highly expedient, for the due administration of justice, that the sittings of Judges on their circuits should begin early in the morning, and close early in the evening; and that no man ought to be put upon his trial at a late hour. He should not deem it necessary to say more on this subject. With respect to the charge of Baron Smith to the Dublin Commission, at the commencement of Michaelmas, he must say, that he was ready to subscribe, in a great degree, to the opinions expressed by the hon. and 285 learned Gentleman. As the hon. Gentleman had gone through that charge, he should not make the observations upon it that he had intended to do. It consisted of three closely-printed columns, tilled with taunts of vituperation, which left no doubt of the spirit in which it was delivered. They all knew, that in Ireland, crimes occurred of a description which might call for observations from the Judge, of a political character. Party processions, white-feet, and other outrages of that description, might fill the gaols, and load the calendar with crimes of a nature which made it imperative on the Judge to give his charge something of a political character. Even the Gentlemen who might most object to the nature of those observations, must, upon consideration, feel that such was the case. Perhaps, too, the frequent occurrence of such occasions in Ireland, had induced too much of a habit in Judges there, to mingle political feeling in the administration of justice; and it was the tone and language which was thus induced, that constituted the chief difference between the conduct of English and Irish Judges. There was one part, in particular, of the learned Baron's observations, to which he could not help adverting. Speaking of the great body of the Catholics, the learned Judge said; "Again, quite independent of its faith, what is this universal people? Does it embrace the property, rank, education, intelligence, or merely the physical force, or vulgar numbers of the country. Now, for a learned Judge, on opening the Commission, and, in the King's name, inaugurating the solemnity of the Assizes, to make observations of that kind in a country, six-eighths of whose inhabitants were Roman Catholics, was, certainly, in the highest degree improper. Was it possible for any Roman Catholic gentleman, after hearing himself thus charged, to do otherwise than withdraw himself from the task of serving his country, as a juror? There was, he was convinced, no Roman Catholic gentleman in Ireland,—and the Roman Catholics, he again repeated, formed six-eighths of the people of Ireland,—there was no gentleman of that persuasion, nor was there a gentleman of any other persuasion whatever in that country, could avoid reprobating the Judge who would make the Bench the vehicle of political feelings. There was no person who more particularly reprobated any such allusion 286 to political subjects from the Bench than he did; and he was convinced that the Government, with which he acted, had the same feeling. If every Judge arrogated to himself the right to pronounce opinions on political subjects, he agreed indeed with the hon. Gentleman, that there would be an end of the confidence which the peopl should have in the impartiality of the seat of justice. It had been his intention to oppose the Motion of the hon. and learned Gentleman, but it was now so put, and the feeling of the House was so decidedly favourable to an inquiry, that he should not be disposed to throw any obstacle in the way. The calendar before the Grand Jury was evidently not of that description: it contained not those instances of political delinquency which might justify the Judge in making the observations the hon. and learned Member alluded to. He regretted that the hon. and learned Gentleman had made some remarks with reference to the Irish peasantry. Whatever the character of the peasantry might be, he was convinced that they had a just sense of the administration of law; and he agreed that it was right that this sense should be nourished. There was another observation of the hon. and learned member for Dublin in which he could not in any degree concur. The hon. and learned Member had seemed to throw an imputation upon the Judicial bench generally in Ireland. The hon. and learned Gentleman had, it was true, better opportunities of knowing those learned personages than he had; but it was only justice to them to say, from every thing which he had known, and from every thing he had heard from others, that, as a body, they were not in any degree inferior to the English Judges in integrity and independence. He did not feel it necessary to trespass further on the House, but would conclude by repeating, that, under all the circumstances, he would not throw any impediment in the way of the inquiry sought for by the hon. and learned Member. But, in making this concession, he begged it to be understood, that he was convinced the inquiry would tend to exonerate the venerable Judge from all political feeling inconsistent with his solemn functions.
§ Mr. ShawThe right hon. Gentleman, the Secretary for Ireland, had said, that he felt himself placed in some difficulty on the present occasion. He was certain 287 the House felt the peculiar embarrassment of his (Mr. Shaw's) situation in no slight degree, having to vindicate the conduct of the eminent and distinguished Judge, the subject of the present discussion, from the vituperation and abuse of the hon. and learned member for Dublin. With respect to the first charge relied upon, as to the hours at which Baron Smith sat in court, by a return which was moved for last year, it appeared that, on the average, Baron Smith generally sat, throughout the as-sizes, from about eleven, or half-past! eleven, in the morning, and rose about six, or seven, in the evening, the only exception being the case of Armagh,—there, certainly, inconvenience was experienced to this extent, that it became necessary to try prisoners during the greater part two nights, although it did not appear, that many trials commenced between six in the evening and six in the morning. The necessity, however, arose from the nature of the business of the circuit; the calendars of Armagh and Monaghan, the next preceding assize town, having greatly increased after the lists had been sent up to the Judges, and the days for opening the several Commissions had been fixed. The return was necessarily imperfect, in-as much as the persons who made it were obliged to qualify it by saying, that, never having been employed before in watching over the conduct of a Judge, they could not state the circumstances exactly, but only from recollection. The Armagh return, however, stated that the time originally appointed for opening the Commission in that county was ten o'clock on Thursday morning. It was afterwards altered in consequence of a letter written by the Judge from Monaghan, to the High Sheriff of Armagh, in which he stated, that he could not attend until three o'clock, in consequence of a press of important business at Monaghan; Baron Smith being obliged to remain for the purpose of assisting his brother Judge in disposing of the business there; and then Baron Smith had to sit at Armagh till seven in the evening of the day on which the Commission of the next county (Antrim) had to be opened, at ten o'clock, by the Chief Justice; and Baron Smith had a journey of twenty-five miles to make after leaving the bench that evening. Let no man think that he was advocating late hours: quite the contrary. In his own inferior tribunal he had introduced earlier hours; 288 but, although he might not approve of the practice, it had prevailed for a length of time in Ireland; and the fact was, that, at present, the Judges of the superior Courts never began business until eleven o'clock. His own individual opinion was, that it would be better to begin at nine or ten; but he was quite sure the practice had existed as long as the hon. and learned member for Dublin could recollect. Why, then, should the House throw upon Baron Smith the blame of a system which long-usage had established? And supposing that Baron Smith was somewhat later than other Judges, was that to be made a serious charge, amounting to a crime, against him? Was that the way to support an independent, judicial tribunal, and uphold the Majesty of the law? Because a Judge might sit at a somewhat later hour than the Members of that House might think expedient, was he, therefore, to be held up to the country as a delinquent? He saw, on looking over the returns,—which, he must say, with every respect for the hon. and learned member for Monaghan (Mr. Perrin), that the persons who made them, and who were responsible for them, evidently considered that they were discharging a most unusual and disagreeable duty,—a sort of espionage on the conduct of the Judges, whose officers they were; however, as he (Mr. Shaw) had before observed, the average hours during which the returns extended were from eleven, or half-past eleven, in the morning, until six or seven in the evening, with the single exception he had already stated. And was that a sufficient ground for directing against the judicial bench that reproach which must attach to it, if this Motion were agreed to?—a Motion obviously intended to disparage and control the Judges, and the administration of justice in Ireland. With respect to the learned Baron's charge, the hon. and learned member for Dublin said, that he was compelled, by a sense of duty, to bring the matter before the House, and, by the forms of the House, he (Mr. Shaw) was bound to give him credit for sincerity in making that assertion; but the plain truth was, that the proceeding amounted to nothing more or less than the advocacy of agitation, on the one hand, and the support of the judicial bench, faithfully endeavouring, under many difficulties, to suppress that agitation, on the other; and the House now saw on which side the 289 Government of the country had placed itself. A great deal had been made of the circumstance that the calendar was very light, that there were, in fact, only seventeen prisoners for trial. Baron Smith assigned that as the very reason why he entered into more general topics. He alluded to the audacity of factious leaders, and the progress of that sedition which they inculcated; he endeavoured to trace the crimes which had been brought before him judicially to their true source, and to warn the deluded instruments of agitation against the factious and designing promoters of it; and although it was true that there may not have been at that particular time, any cases connected with seditious or unlawful conspiracies before him, still the fact was, that on the very-last occasion of his presiding at the Commission, there had been several persons tried for tithe conspiracies, and who were then undergoing the punishment of the law. Under these circumstances, the learned Baron felt it not out of the sphere of his duty to warn others against similar proceedings, and becoming the dupes of those who would first mislead, and afterwards betray them. Baron Smith says, in the course of his charge, "So far as is connected with the due control and influence of that with which I have most concern, the law, I conceive the epidemic of our day to be a turbulent abuse of the valuable right of petition, making it a channel for the conveyance, not of submissive prayer, but of refractory invective, and insolent dictation." The learned Judge applied the observations to petitions against tithe, the meetings for which had led to convictions which had occurred before him at the preceding Commission, described in a paper, to which he alluded, "as the war-of-tithe petitions," and calling upon the same deluded victims of agitation, "to prepare for the war-of-re-peal petitions." Let the House take into consideration the different state of Ireland as compared with England; for on the difference of the situation of the two countries turned the whole question. Insubordination, insurrectionary tendencies, unlawful conspiracies, and seditious devices, were the great evils of that country—evils which his Majesty himself found it necessary to point out, and allusions to which were to be found in the last two speeches from the Throne. He 290 (Mr. Shaw) would ask, in such a country, was it unbecoming a Judge to raise his warning voice, and to caution those who would naturally attend to advice coming from so high a station? What were the terms in which his Majesty expressed himself with regard to Ireland in the speech of last year? "In this part of the United Kingdom (His Majesty is made to say), with very few exceptions, the public peace has been preserved."—" But it is my painful duty to observe, that the disturbances in Ireland, to which I adverted at the close of the last Session, have greatly increased. A spirit of insubordination and violence has risen to the most fearful height, rendering life and property insecure."* The hon. and learned member for Dublin had said, that the learned Judge had insinuated that the hon. and learned Member had caused the state of things which was here lamented. He despised quibbling, and though the hon. and learned Member was not mentioned by name, he would freely admit that in his opinion, the learned Judge did mean to imply, that to the hon. and learned Gentleman's agitation may be ascribed many of the evils which unhappily exist in Ireland. His Majesty continued—" defying the authority of the law and threatening the most fatal consequences if not promptly and effectually repressed."† Then again his Majesty in the speech of this year said—" To the practices which have been used to produce disaffection to the State, and mutual distrust and animosity between the people of the two countries, is chiefly to be attributed the spirit of insubordination which, though in a great degree controlled by the law, has been perceptible in too many instances."‡ His Majesty then required—" the united and vigorous exertions of the loyal and well-affected, to put an end to a system of violence and excitement which is destructive of the peace of society."§ And yet because a Judge of the land acts in the spirit of that requirement and uplifts his warning voice against the very mischief denounced by his Majesty; and, though not a fortnight had elapsed since that sentiment had been responded to by the House, he was to be dragged, as a criminal, to their
* Hansard (third series), xv. p. 89, 90.†Ibid. ‡Ibid. §Ibid.291 bar. The fact was, that, in Ireland, the I violence of the open agitator, as well as the wit and ingenuity of the subtle casuist, were incessantly employed in violating the spirit, while they evaded the letter, of the law; and when the Judges of the land found the law thus becoming a dead letter in their hands, were they, then, to slumber at their posts, or patiently and silently to look on while the true spirit of the law was mocked? While agitation was leading to actual crimes, were they to suffer the miserable dupes of violence and artifice to be exposed to punishment, by their almost unwilling judgments, and not to exclaim with Baron Smith (which is the head and front of his offending), "I abominate the misleader, while I pity the misled?" What does his Majesty say in the Speech, on the opening of this very Parliament?—He says,—"I have seen with feelings of deep regret, and just indignation, the continuance of attempts to excite the people of Ireland to demand the Repeal of the Legislative Union." The right hon. Gentleman (Mr. Littleton) was asked the other night, whether he thought that agitation led directly to the perpetration of crime?—and he said, he thought it did; and yet, was it to be a crime in those who were the depositories and administrators of the laws to utter the same sentiments? If the means used to promote a Repeal of the Union were not unlawful, why put indignation in the mouth of his Majesty? and if they were, why this truckling servility?—why the despicable concession of his Majesty's Ministers to the avowed leader of that agitation, when the question had been now fairly raised by him, whether he or the laws were the stronger? But he believed this case might be stated in a few words. It was not, he presumed, intended to impugn the moral character of the learned judge. The hon. and learned Gentleman did not, he believed, charge Baron Smith with being guilty of any corruption, or of partiality. Could the hon. and learned member for Dublin lay his hand on his heart, and say, in sincerity, that Baron Smith was a corrupt or partial Judge? He utterly defied the hon. and learned Member to do so. The hon. and learned Member had mentioned one circumstance, which partly accounted for the vengeance he directed at the learned Judge. Baron Smith was once, when a politician, the friend of that party to which the hon. 292 Gentleman belongs; the able and consistent advocate of Catholic Emancipation; and it did so happen, that, if any of those persons who had been in any degree on his side, would not altogether submit to the iron rule of his direction, they became the objects of his more virulent hostility than even his open and avowed opponents. He would refer for an illustration of the truth of this position, to the hon. member for the county of Wexford, and, also, to the hon. member for the county of Dublin. These hon. Gentlemen were known to be, what he might, perhaps, consider, agitators, generally acting on the same political views as the great agitator himself; but because they would not consent to chain themselves to the chariot wheels of that very agitation which he was driving, and be dragged through all the mire of his course, the hon. and learned Member had treated them with more harshness, more abuse, and more invective than he had ever visited upon his political opponents. But there was another, and a more important reason, why the hon. and learned Gentleman had brought forward the present Motion. The fact was, that the hon. and learned Gentleman, at least, acted a consistent part. Within the last two nights, he had attacked the Magistrates, and impeached the Juries, and now he arraigned the Judges of Ireland. The hon. and learned Member could brook no authority,—he was impatient of all control; and he was receiving the support of his Majesty's Ministers to trample under foot the Judges and the laws of the land. He asked the right hon. Gentleman—not that he should approve of every particular phrase or expression in the charge of the learned judge, but laying aside all special pleading and mere distinctions of form, whether this matter did not resolve itself into this simple question (and so it would be understood by the whole of Ireland), that the hon. and learned member for Dublin had been not by name, but by description, pointed out by the Judges of the land as doing infinite mischief to the laws of the land—that the hon. and learned Member in return had assailed the Judicial Bench of Ireland in that House, and that the Government of the country had lent him all the aid of their countenance and support. The Committee which sat to inquire into the state of Ireland the Session before last, quoted the charge of Mr. Baron Smith with approbation, and 293 printed it in their appendix. The nature of that charge was the same as that which had been quoted by the hon. and learned Gentleman that night. It was also quoted by the Law-officers of the present Government with equal approbation—and he found in this very report that Chief Justice Bushe spoke in terms of the most unmeasured praise of the learned Baron, whose conduct was now impugned in his efforts to put down agitation, and to preserve the peace and security of Ireland. That eminent Judge (the Chief Justice) in his address to the Grand Jury of the Queen's County, observes—" Under these deplorable circumstances, many duties devolve on you as Grand Jurors, Magistrates, and country Gentlemen, upon which it would be proper that I should address and exhort you; but you have lately heard," said the Chief Justice, referring to the charge of Baron Smith, "an appeal from this Bench upon all those topics which you cannot have forgotten—an appeal carrying with it a weight, instruction, and persuasiveness, upon which, placed as I now am, I am not left at liberty to say more, than that I will not, by a worse than useless repetition, run the risk of effacing the profound impression made upon your hearts and understandings. "Feeling themselves placed in a highly responsible station, Judges had been called upon to do that in Ireland, which, under the different circumstances of the countries, might be unsuitable to England, but which he could easily show had, under similar circumstances to those existing in Ireland, been practised in the earlier periods of the history of England. The first impression on the mind of a Judge when addressing a Grand Jury in Ireland, was the difficulty he experienced in entering upon topics which, under other circumstances, might not be considered strictly within the sphere of his duty. The Chief Justice, in the same charge to which he had already alluded, said—"But it does belong to this place to lament that those delicate questions which the wisest statesman or lawgiver would approach with fear, or touch with a tremling hand, should be subject to the rude decision of a misguided and infuriated peasantry." Chief Justice Bushe thought it was not irrelevant to advert to such topics, while he observes—" We must pity such infatuation; but it is not the causes we have to think of here, but the 294 effects. Crime and misery, those inevitable consequences of popular licentiousness, both abound amongst you, and are traced as you will see, through all the means which have been always adopted by the insurgents for accomplishing their objects. "The Chief Justice then adverted to the means of remedying these evils—" It is quite plain (he said) that ordinary laws calculated for civilized communities are not applicable to a country so circumstanced; and one of the most lamentable consequences which the offences of the people have produced is, that they have brought down upon their own heads the sanctions of a code enacted expressly for the purpose so uncongenial to our Constitution." The Chief Justice was alluding to the White boy Code. The existence of the Coercion Bill itself tended to show the immense difference that existed between the state of England and of Ireland. Did not this then justly call for observation on the part of a Judge, although the particular crime did not appear upon his calendar, when he knew that the great bane of Ireland was, that while the real delinquent did not violate the letter of the law, he triumphed over the spirit of it with impunity. Again, he would say, the question before the House substantially was this, whether his Majesty's Government, by whom agitation had been emphatically denounced in words, and who had now the opportunity to oppose the objects of its leading advocate, nevertheless, took part against the laws and their supporters, and in favour of that hon. and learned Gentleman? With great deference to the right hon. Secretary for Ireland (Mr. Littleton), he could not refrain from saying that what had just occurred was but a picture of the whole system of the Irish Government. All persons in authority whose desire it was to maintain order and support the laws, had not more to apprehend from the political agitation and power of the violent demagogue on the one hand, than from the political pusillanimity and feebleness of the Government on the other. He was also willing to bear testimony to the personal politeness and courtesy of the right hon. Gentleman the Secretary for Ireland—but he must say, and he knew that the right hon. Gentleman would pardon the observation, that politeness and courtesy alone were not sufficient to manage the difficult Government of Ireland at the present moment. 295 It was with as much regret as sincerity that be made this further observation, namely, that the Government of Ireland did not possess the confidence of any party or class of persons in that country. Their conduct justified the result. They boasted, indeed, of acting with firmness and vigour, but he would, with all submission, ask wherein that vigour and firmness had been displayed? He had heard but two instances adduced, since the last Session of Parliament, and in both those cases it was admitted that they inflicted the punishment upon those who had not been guilty of the offence. In one of those cases their plea was, that they could not find the real delinquent, and they, therefore, proceeded against an individual who was only technically concerned in the offence. It was perfectly notorious that the individual who was alone guilty seized upon the occasion of the trial to beard the Government and the laws, and with an effrontery that, in justice to him, became the advocate and the defender of the published libel of which every body, except the Government, was convinced he was the author—used the opportunity greatly to aggravate and give publicity to the seditious matter it contained. The other proof of the vigour and firmness of the Irish Government to which he alluded, was the dismissal of a highly honourable and respectable Magistrate of the North of Ireland, the offence being committed by the wife of that gentleman, who wore, in the retirement of private life, a ribbon not of the proper and agreeable colour to his Majesty's Government. These were the instances of that vigour and firmness of which the right hon. Gentleman had so loudly boasted, and they had here an additional one in his conduct that night—conduct which ought to forfeit for him the confidence and good opinion of every sober-minded and rational man in Ireland. He would repeat it, that the Irish Government was without, and was undeserving of, the support or confidence of any part of the Irish nation. They were that night lending themselves to the cause of the hon. and learned member for Dublin in his efforts against those who had felt it their duty to oppose agitation, from a conviction that it led directly to the commission of crime, and who had done no more than what his Majesty's Ministers advised in the Speech from the Throne. He could not, on the present occasion, avoid refer- 296 ring to the observation made by our late reverend Monarch George 3rd, with respect to the independence of the Judges. He did not think there ever was a period when the independence of the Judges was more important than now, or when a more fatal blow was aimed at it than by the joint act of the hon. and learned Member and his Majesty's Ministers that night. It was in vain that the law declared "the independence and uprightness of the Judges as essential to the impartial administration of justice, as one of the best securities of the rights and liberties of the subject, and most conducive to the honour of the Crown." It was useless that the seat of justice should be independent, and guarded against the prerogative of the Crown on the one hand, unless it was equally free from the assaults of popular agitation and the influence of democratic power on the other. He would ask, in conclusion, was there the slightest imputation of corruption, of partiality, of oppression, or any species of criminality made against Baron Smith? If there were, then let every investigation take place. He should be the last man to oppose an inquiry, but where there was not, and could not be the shadow of a shade of corruption imputed against the learned Judge, he charged the Government with abandoning their highest duty in acceding to the Motion. He would tell them that they had granted the inquiry from a pusillanimous concession to the power of the hon. and learned Gentleman before whom they quailed, and every individual of every party and class in Ireland would believe, as was the truth, that they had not the spirit or the manliness to do their duty.
Mr. Secretary Stanleywas sure that the hon. and learned Gentleman who spoke last, would admit, that he, at least, was not in the habit of yielding systematically to the representations or motions of the hon. member for Dublin. He was not, he hoped it would be acknowledged, generally actuated by a desire to promote the views of that hon. and learned Member, or at all disposed to hesitate in opposing him, whenever the occasion rendered opposition necessary. He much regretted that any attempt should have been made to render the present a party question; it ought by no means to be viewed in that light, and he must confess that the tone adopted by the hon. and learned member for the 297 University of Dublin was not without its weight in determining him as to the course he should adopt. Whatever doubt existed in his mind when he came down to the House, as to the present question, it had been more completely dissipated by the advocate of Mr. Baron Smith, than by that of his opponent. He begged in the first place, most particularly to remind the House, that those who assented to the proposition of the Mover, did not at all admit that a case for removal had been made out; on the contrary, all which they would acknowledge was, that a case for inquiry had been laid before the House. He hoped that the hon. and learned Gentleman, the member for the University of Dublin, (Mr. Shaw) would forgive him if he repeated that he was more influenced to vote in favour of the Motion by the speech which the hon. and learned Gentleman made in defence of Baron Smith, than by the accusation. He begged further to say, that nothing could be more evident, than that the advocate of the learned Baron was throughout labouring under the consciousness that he had to prop up a weak cause. Instead of confining himself to the question properly before the House and in reality supporting the dignity and the independence of the Judges of Ireland, the hon. and learned Gentleman made the question a political, a party one, wandered into a general attack upon the Government, and almost lost himself in declamation. The hon. and learned Gentleman had said that, on the one side, the Judges and the authorities in Ireland were opposed by all the strength and violence of agitation, and that on the other, they had only the support of political pusillanimity. Now, he (Mr. Stanley) would say, that the great evil in Ireland was, that ungoverned and blind violence was opposed by ungoverned and blind violence, and that the Government had to deal with materials discordant and almost impracticable. But, in support of his attack upon the conduct of the Government, the hon. and learned Gentleman had alluded to two particular cases, and he had tauntingly spoken of them as exemplifying the vigour and firmness of the Government. Now, what were those cases? He was ready and willing that they should be examined into. They were not according to the representation of the hon. and learned Gentleman. If the hon. and learned Gentleman as a lawyer would take 298 upon himself to say—if he would stake his reputation as a lawyer upon the opinion—that the Government possessed, or could obtain, legal evidence against the individual alluded to, then, but not before, would he acknowledge that the charge of the hon. and learned member had some foundation. Until the hon. and learned Gentleman, as a lawyer, could prove that, it would not be exercising the fairness which as a member of that House he ought to exercise, were he to continue to censure the Ministers for not doing that which he knew was out of their power. As to another question which had been raised, respecting the symbols of party, said to have been worn by the wife of a gentleman resident in the north of Ireland, it was really very hard upon the Government that hon. Members should give that colouring to the proceeding; had the Government of Ireland acted upon such grounds, it would have been worse than imbecile. It was too much that hon. Members should suppose them capable of visiting upon the husband the political offences of the wife. The case was this. The House would bear in mind that in the last Session of Parliament, an Act was passed prohibiting party processions in Ireland. On the occasion alluded to, one of those processions was received by the family, decorated in the colours of the party; after remaining at the residence of that gentleman for some time, and being entertained there, they departed from the house with all the provoking triumph in which they approached it. All that occurred under the eyes of a magistrate, in open violation of the law which he had sworn to maintain, and for such an offence it was thought fit to remove him from the Commission of the Peace. He would next call their attention to another and a different point in the speech of the hon. and learned Gentleman who had spoken last,—he meant, that in which he adverted to the state of the calendar for the city of Dublin, on the occasion when that remarkable charge was delivered: the calendar was not only free from political offences, but very light on that occasion—it was light, for most of the offences had been disposed of by reason of the great assiduity and high qualifications which the hon. and learned Gentleman himself brought to the discharge of the important judicial functions which devolved on him as Recorder of Dublin. The calendar was not only light, 299 but at the time there was no excitement, no provocation to disturbance, and obviously no necessity whatever for a Judge on the bench entering, in a charge to the Grand Jury, largely into political topics. The fact was, the learned Judge had no real matter on which to address a jury: he launched into topics, which, of all others, he ought to have avoided, and by talking too much, he, like others, got himself into a scrape. Let not the hon. and learned member for the University of Dublin, suppose that he differed from him alone; he differed quite as much from the hon. and learned member for the city of Dublin, who held that there should be no political allusions of any kind in the charge of a Judge. [Mr. O'Connell: When there are no offences of a political nature in the calendar.] He would not then enter into the question which was discussed last year, as to how far political topics were or were not admissible into such addresses from the bench, than simply to record his dissent from the position taken up by the hon. and learned member for the city of Dublin on that subject, on the ground that if the offences in the calendar, or the state of crime generally throughout the country, were plainly of an insurrectionary tendency, a Judge would fail in the duty he owed to society were he not to advert to such topics—in doing so he would be not only exercising a privilege, but discharging a solemn and imperative duty. He had not then before him the charges of Chief Justice Bushe to which allusion had been made; but the occasions which drew them forth, were totally different from that on which the learned Baron had addressed a Dublin jury. The Chief Justice presided over a Special Commission, issued expressly for the trial of insurrectionary offences, and in that charge the learned Chief Justice dwelt with great propriety upon the destruction which those "deluded instruments of agitation," then to be tried, had brought upon themselves; but the circumstances under which that charge was delivered were very different from those under which the learned Baron had addressed the Grand Jury in Dublin. The House had been referred to the last two speeches from the Throne, as affording precedents to justify political addresses from the judgment-seat. Surely no one gravely and deliberately meant to contend, that the Ministers of the Crown, address- 300 ing that political assembly, were to form fit examples by which the conduct of Judges on the bench was to be squared. It was a very novel doctrine indeed, that because the responsible advisers of the Crown had thought fit to recommend his Majesty to express indignation of certain proceedings in a certain part of the country, that thereupon every Judge in places the least connected with the districts referred to, was called upon to exceed the expression of sentiment conveyed in the Royal Speech, and that, too, upon a subject which had no necessary connexion with the general administration of justice. He found it difficult to conceive any case more remote from one which required what might be called a political charge, than that in which the learned Baron had thought proper to depart so widely from that line of observation within which the functions of a Judge are usually circum-scribed. The political evils of the time and their remedies formed legitimate topics of discussion in the Speech from the Throne; but what had a criminal Judge to do with those at an ordinary assizes, the last possible place at which public measures or the conduct of public men ought to be discussed? All such matters were perfectly foreign from the character and duties of a Judge, to whom the preservation of the peace by the general administration of the law was intrusted, and particularly foreign at an assizes in nowise remarkable either for great crimes or political atrocities. He very frankly and cheerfully gave his assent to the present Motion; and he hoped that the people of Ireland would see in it an evidence that their real interests were as much attended to by the Parliament assembled at Westminster, as if it had been sitting in Dublin. He hoped they would see from it that Irish grievances were as much attended to by an Imperial Parliament, as they could be by a local Legislature; and it would be a proof also that the charges brought against that House of Commons were, to say the least, exaggerated. He could not help noticing the pains which the hon. and learned member for the University of Dublin had taken to defend from the imputation of partiality, one who had never been charged with any thing of the sort. Those observations had nothing to do with the Motion: and here again was another instance of the extent to which party feeling was 301 carried in all questions relating to Ireland. He begged the House to bear in mind what the real question was—namely, whether the case which had been laid before them did or did not demand an inquiry; and he must positively deny, that if they granted an inquiry, they would condemn Baron Smith. He would venture to say that if one of the Judges of England, wrongly or rightly, truly or falsely, had uttered such a charge as that, there would not be five minutes' hesitation in agreeing to the proposed inquiry: of course it was not meant to be insinuated that there was any corruption in the case, or that the learned Judge had done more than proceed somewhat beyond the strict line of his duty. A case for an inquiry into that question had, he repeated, been fully made out, and, therefore, the Motion of the hon. and learned Gentleman should have his support. There remained to be noticed one other topic, which was perfectly distinct from all that had gone before—he alluded to the occurrences at Armagh. The assizes there lasted for five days; and if the Court had sat unusually late on the last day, he could well enough have understood how the press of business might have rendered that necessary. It appeared that during the first two days the Court sat from half-past eleven to seven in the evening; on the third day it sat till within a quarter to twelve; and that on the fourth clay, meeting at half-past eleven, it sat till six o'clock the following morning. That, to say the least of it, was blamable and indecorous: the fifth and last day, it rose eleven hours earlier than on the preceding day; though he could, however objectionable, have well understood the motive for sitting late on the last day.
Mr. StanleyDocs the hon. and learned Gentleman mean to say that this Judge—the oldest on the bench, and one for whom I may be permitted to say in my conscience I highly honour, while I regret the situation in which he has placed himself—does the hon. and learned Gentleman, I ask, mean to say, that this learned Judge sat in Court for two successive days, from half-past eleven o'clock in the morning, till six in the evening on the first day, and again from half-past eleven in the night till seven in the morning on the next day?
§ Mr. Shawsaid, the right hon. Gentle- 302 man was mistaken in supposing, that it was not the last day when Baron Smith sat so late. The learned Baron went indeed into Court again on the same day, but rose at seven o'clock in the evening, and proceeded immediately after the adjournment of the Court on his way to the county of Antrim, where he had to commence business the next morning.
Mr. Stanleyresumed. He said, that the point to which he wished to call the attention of the House was this:—that there were but two nights on which the Court sat after six o'clock in the evening—that, on one occasion, it sat the whole night, and on another it sat till twelve o'clock. Now, he could conceive no state of inconvenience which could justify a Judge in bringing on the cases of fourteen separate prisoners, many of them charged with capital offences, between the hours of six o'clock in the evening and six in the morning. Whether any justificatory circumstances could be shown, it was not for him to say, but he must declare, that in his opinion the case was one which could not pass without inquiry. The hon. and learned Gentleman said, he was anxious to support the authority of the Judges, and uphold the administration of justice in Ireland. He gave the hon. and learned Gentleman credit for being animated by the best intentions, but, in his opinion, the authority of Judges would be best supported by taking care that, in the event of any doubtful case occurring, no attempt to prevent a full and public inquiry into it should be allowed to succeed. Such being his view—wishing to cast no imputation on Baron Smith, for whom he entertained the most unfeigned respect—being still less anxious to do anything which could have a tendency to subvert the authority of the law, and least of all feeling desirous, by any one act of his, to countenance agitation in Ireland, whether predial or political; but believing that the authority of the law would be best upheld by showing the people that in the British House of Commons the interests of Ireland were not less attended to, than the interests of England; and thinking that a case, on its very face, appearing to be a deviation from the ordinary rules of the administration of justice, had been made out for inquiry—he should vote for investigation, though he should have resisted any Motion having for its object the removal of Baron Smith with disgrace from the bench.
§ Sir Robert PeelThe right hon. Gentleman, in the course of his statement to the House, alluded to some motives arising from community of political feeling which might possibly influence Members of the House in forming their judgment in this case. For myself, Sir, I cannot conceive the possibility of political feeling influencing any one on such an occasion. This learned Judge, Mr. Baron Smith, never was a political partisan; there never was a man freer from the charge of being swayed as a Judge by political partialities or feelings; even as a Member of Parliament, he never assumed the character of a partisan. He was the early and temperate advocate of concession to the Roman Catholics; he was a correspondent of Mr. Burke on that subject; and so highly did Mr. Burke think of Baron Smith, of his early ability and judgment, that to him he addressed two of his ablest letters on it. With that learned Judge my personal acquaintance is limited in the extreme: I fully participate with the right hon. Gentleman in the very great respect which he professed for him; and during the six years of my experience in Ireland, as Chief Secretary, in the course of which I was necessarily drawn into constant intercourse with the Judges of that country, I do not recollect any Judge who ever showed a greater desire, after his judicial duties in Court were terminated, to examine every case with scrupulous accuracy, in order that if a prisoner could urge any ground for doubt as to the propriety of his conviction, or any reason for the mitigation of the punishment awarded to him, the circumstances might be fully weighed, and every advantage, consistent with justice, accorded to him. This learned Baron is now charged with neglect of duty. But I could cite many instances in which he has sacrificed his night's repose that he might the more effectually discharge the duty of a humane and conscientious Judge, There is not an allegation of corruption against him;—I do not believe that there ever breathed a man freer from the taint of corruption, pecuniary or political. There is not an allegation of the slightest partiality,—there is not an allegation, that in the performance of his duties in the administration of the criminal law, or as the distributor of civil justice between man and man,—any corrupt motive or feeling of political partisanship ever influenced him. Let us see, then, whether there be 304 even a plausible prima facie case for inquiry into the conduct of this Judge by a Committee of the House of Commons. I dismiss every other topic that has been introduced into this discussion—I regret that any other has been introduced; for God knows, Sir! the one we have now under consideration is of too great importance, the consequences with which it is pregnant are too alarming, to need aggravation by reference to any other point. We are called upon to appoint a Select Committee for the purpose of inquiring into the conduct of Baron Smith. Sir, I say this; that if—on light and frivolous complaints, nay, on plausible allegations of inadvertency or error,—Select Committees of the House of Commons are to be appointed for the purpose of examining into the conduct of the Judges, or if those Judges may be dragged before such tribunals, you may fill your Statute Book with laws professing to secure their independence, but their independence is a hollow and miserable phantom. Yes, indeed, they may possibly continue independent of the Crown,—independent of the fountain of honour and mercy;—but will they be independent of faction!—will they be independent of a predominant popular party in this House, that assumes the right, under the hollow pretext of inquiry, to humiliate Judges for the expression of opinions adverse to their own, by placing them as culprits at the bar? There are two allegations against Baron Smith on the present occasion. One is, of neglect of duty at the assizes of Armagh. If you admit the force of that charge, on what ground did you not institute an inquiry into it last Session? You were cognizant of every fact that has now been brought before you,—you had the returns in your possession,—no new allegation establishing neglect of duty on the part of Baron Smith has been made. But now, eight or nine months after the documents were produced,—after you tacitly admitted the innocence of Baron Smith by abstaining from all public notice of them,—after you have, during the whole of the interval, permitted Baron Smith to remain in the administration of justice; now, will you think it just or decent to revive the neglected and forgotten accusation, and to bolster up its manifest and admitted weakness, by another and perfectly different charge, namely, that the Judge introduced political matter into an address to a 305 Grand Jury at Dublin? The introduction of political matter, observe! That is the whole of the additional charge. No allegation that the political matter was improper matter, for any other cause than simply that it was political. Why, Sir, can the right hon. Gentleman who spoke last vote for a Committee of Inquiry into such a charge—can he, who says that there are many cases in which it may be the duty of a Judge to introduce political matter into a charge—can he, who vindicates Chief Justice Bushe for the introduction of political matter into a charge—above all, can he, who quoted in this House, a charge of Baron Smith full of political matter, when that charge told in favour of his own opinions, and in defence of his own conduct—can he consent to the institution of an inquiry into the conduct of a Judge, on the simple abstract allegation, that that Judge has introduced political topics into a charge? Will the House of Commons imply that the introduction of such matter into a Judge's charge, is, primâ facie, to be viewed with so much suspicion, that they must forthwith summon the Judge from Ireland, and inquire into his conduct? We, Sir, have no control over this Judge, except by an Address to the Crown for his removal:—of us he is quite independent; and ought we to institute an inquiry without a firm conviction that the result of that inquiry, if unfavourable to the Judge, would warrant the extreme measure of an Address to the Crown? Take the case of these late trials at Armagh. Is it alleged that injustice has been done to any one? I concur with the right hon. Gentleman in lamenting the lateness of the hour at which some of the trials took place: but I repeat, that if on such allegations as this,—that on a certain occasion, trials took place at an inconvenient and unseemly hour—on allegations implying no charge of partiality, of corruption, of grievous neglect—implying no moral delinquency of the lightest kind;—the Judge is to be brought, as a delinquent, before a Committee of this House, he ceases to be a free agent: he ceases to be an impartial and independent Judge: he is administering his functions under the rod and menace of a despot. Suppose a case of this kind. The Judge, on going the assizes, finds there has been a mistake as to the duration of a particular assize—a mistake for which he is no way responsible 306 —that there are double the number of trials that were calculated on, when the period of the particular assize was fixed: he finds an unexpected demand upon his time; he finds also the assizes fixed for the next county for a certain day; and, anxious to perform the duty of opening them at the prescribed period, he hesitates between the hardship of detaining in gaol the prisoners who are ready for trial in the first county, and of postponing these trials for months, and the opposite evil of trying them forthwith at late and inconvenient hours. He adopts the latter—no objection being urged by the counsel for the prisoners—no allegation being made of injustice done to any one. Such may have been the circumstances under which Baron Smith acted—under which, with the best intentions, he preferred the less of two evils, and sacrificed his own comfort and repose, that he might give to accused parties the benefit of an early decision—perhaps an early acquittal. If this were the case, would it not be most unfair to cast a slur and imputation on the character of an aged and respected Judge, by dragging him over from Ireland, to appear before a Committee of this House? Say what you will—that this is a mere inquiry—that if acquitted, the Judge will not be injured in character;—these are the plausibilities by which you are covering an act of injustice; you must feel and know, that the authority of the Judge is extinguished the moment that he is summoned before you as a suspected and accused minister of justice; not only is his individual authority gone, but the blow you aim at him, strikes at the independence and authority of the judicial station. For God's sake, if you will establish this fatal precedent, establish it with those forms and solemnities, which, by giving it a more impressive character, may designate it as a proceeding of an unusual and extraordinary kind. Place the accused Judge at the Bar—let him stand here in the face of day—let him confront his accusers—and above all, let him know what it is with which he is really charged. The right hon. Gentleman says, that one advantage of this proceeding will be, that we shall thus convince the people of Ireland that impartial justice is done to them. Yes; but let the justice you deal out be really impartial. Take no step where justice is concerned, for the purpose of conciliating popular opinion in your 307 favour; let us do our duty, regardless of what popular opinion may be, and depend on it, that if we do our duty, all the popular opinion that is worth retaining will, in the end, be on our side. I now come to the charge of this present Session, which is brought to aggravate that of the last; to render more weighty that which was not before thought sufficiently heavy to merit the pains of an investigation, but which is now to be inquired into, when the evidence connected with it is probably weaker and more defective—when all the means of information are less easy of access than they would have been last Session. The second charge is this—that the learned Judge introduced political matter into his charge to a grand jury,—an act which the right hon. Gentleman himself admitted that, under certain circumstances, he was not only justifiable in doing, but that it formed part of the duty of a Judge. And yet he objects to its being done in this instance. Are we, then, Sir, going to define the terms in which the Judges are to make their charges?—are we going to prescribe the exact limits within which it may be lawful or decorous for Judges to introduce political matters into their public addresses?—are we about first to admit, that it may be quite right in the Judges to warn "the deluded instruments of agitation?" "Nay," says the right hon. Gentleman, "it may be their duty to trace the evils of agitation to their source, but then they must look carefully at the calendar—they must not presume to lift their eyes beyond the horizon of the county in which they are holding the assize—or, indeed, beyond the barat which the prisoners are arraigned." These may be the rules, suited for ordinary times—difficult enough to be acted upon, even in such times. But what were the times in which Baron Smith was delivering this charge which furnishes the matter of his accusation? He was speaking at a time when we, his accusers and judges, had passed a Bill that suspended and paralyzed the ordinary law in Ireland, and placed the liberties, if not the lives, of the people in that country, at the mercy of military courts-martial. I voted for that Bill—I approved of it,—I thought it required by a and overwhelming necessity. And if I did this, am I, in estimating the imputed delinquency of Baron Smith,—am I to forget that he was acting under the very same circumstances,—the 308 very same impressions which constitute my own vindication? There is one passage, in particular, of the learned Baron's charge, to which I must allude. The right hon. Gentleman, the Secretary for Ireland, founded his acquiescence in this motion on that single passage,—at least he referred to no other in detail to support his opinion.—I will venture to say, that he has put a totally erroneous, and most unjust construction on that passage. In the view which he takes of it, it represents Baron Smith speaking of the whole Catholic population in Ireland, as a body which had neither property nor rank, education nor intelligence; but which merely included the physical force and numbers of the country. Sir, I am content to rest the whole case on this issue. I ask, was Baron Smith speaking of the whole Roman Catholic body at that time? No; he was referring to the allegation of those whom he considered the agitators,—the authors of the whole evil,—the allegation, that the universal people of Ireland were enlisted in the conspiracy then existing. What was the substance and obvious purport of his observations on this point? That the unfortunate victims of agitation—that mass whose physical strength was referred to,—not by Baron Smith, but by the agitators,—referred to by them with triumph and exultation,—that that mass, powerful and dangerous as it might be from numbers, and from its proneness to excitement by inflammatory harangues,—that that mass did not contain amongst it, either the wealth, or the intelligence, or the respectability of Ireland. Was this untrue? Is it not a vindication, rather than an insult, to the Roman Catholic body? And let me ask, is it probable, that Baron Smith, one of the earliest and most consistent advocates for the Catholic claims,—is it likely that he, the offspring of a Roman Catholic parent, would have spoken of the Roman Catholic body in terms so offensive, as those which the right hon. Secretary imputes to him? Baron Smith was speaking at a time when all law was suspended—when we ourselves had committed the greatest violation of law; and is it not a mockery to tell him, that it is his duty to warn "the deluded instruments of agitation;" but that he must not allude to those exciting topics of the day which are inseparably connected with that agitation? Look at the state of Ireland when the charge was 309 made; look at the circumstances arising from the agitation; look at the loss of life that had been suffered in that country; look at the effects of passive resistance to tithes—the collection of these tithes suspended, we ourselves finding it necessary to provide for those who had a legal claim to tithes, compensation from the public purse for the injustice which they were daily suffering. I have here, Sir, the charge of Baron Smith which is complained of; it contains political matter, I admit; but how was it possible to allude to the state of that country; to "warn the deluded instruments of agitation," (for I like repeating the words,) without referring to politics? Here is one of the addresses to the instruments of agitation on which Baron Smith was commenting; it expressly refers to the success which had attended tithe petitions; it calls on the people of Ireland to be up and stirring, and assures them, that by an organised system of petitioning for a repeal of the Union, they will ultimately effect that repeal. Now I ask the House, admitting that there was no criminal case before the learned Baron immediately connected with tithes—or with the repeal of the Union—yet if he had seen that we had been under the necessity of placing the liberty of the people of Ireland under the control of courts-martial; if he had seen that the consequence of tithe petitions, adopted as the means of agitation, had been that tithes had ceased to be paid, excepting only at the risk of blood; if he feared that the repeal petitions would produce similar effects; if he learnt from the Ministers of the day, that they would, to use their own language, resist repeal to the death—was he, I ask, acting contrary to his duty when he raised his warning voice from the judicial Bench, and exposed the objects of those who were labouring, through agitation, to promote the cause of repeal? Why was there no criminal case immediately "before him? Because the avowed object of the repealers was to effect their object, not by direct violation of the law, but by the excitement of a spirit of insubordination, which, while it professed a specious submission to the law, should ultimately overbear the law. Baron Smith, therefore, though he had not before him any criminal charged with the express violation of a law connected with treason or insurrectionary violence, did naturally express the same feelings of 310 deep regret and just indignation at the continuance of attempts to excite the people of Ireland, which the King himself had expressed at. the meeting of this Parliament. And what is the language we ourselves have held? We assured the King—re-echoing his Majesty's own sentiments—'That we fully participate with his Majesty in the feelings of deep regret and just indignation with which his Majesty has seen the continuance of attempts to excite the people of that country to demand a repeal of the legislative Union: to express our thanks to his Majesty for the repeated assurance of his fixed and unalterable resolution, under the blessing of Divine Providence, to maintain this bond of our national strength and safety inviolate, by all the means in his Majesty's power; and to assure his Majesty that, in the support of this determination, his Majesty may rely with confidence on our zealous and effectual co-operation.' And again we say to his Majesty,—and to this passage I beg the attention of the House;—'That his Majesty may rely upon our united and vigorous exertions, in conjunction with all the loyal and well affected, in aid of the Government, to put an end to a system of excitement and violence, which, while it continues, is destructive of the peace of society, and, if successful, must inevitably prove fatal to the power and safety of the United Kingdom.' We here expressly invite all the loyal and well-affected to cooperate with the law and the Government in the maintenance of the Legislative Union. If, Sir, the first practical step we take is to bring Baron Smith before us because he has discountenanced a system of excitement and violence—because, as a loyal and well-affected subject, he has anticipated our solemn appeal for his aid and co-operation, what, think you, will be the inference drawn by the people of Ireland from this direct contradiction between our professions and our acts? From this hour the cause of repeal will prosper—for never will the Irish people believe that they, who abandon to his enemies, the Judge who has used the authority of his name and station to uphold the law, and to defeat the machinations of repealers, will not also, in the hour of trial, abandon that cause, for supporting which the Judge has been made a victim.
Mr. Prymebegged pardon for present- 311 ing himself to the House after the very eloquent declamation of the right hon. Baronet who had just sat down; but, surely, they were not to refuse an inquiry into the conduct of a public functionary at the present time, merely because he had been the friend and correspondent of Edmund Burke, or was thought highly of by him some twenty-five years ago. If they weighed the characters of Irish Judges, they should take into consideration the regularity of the English Courts, where no Judge was found entering at eleven o'clock, but where the whole business was conducted with uniform order and precision. It had been said by the right hon. Baronet, that there was no allegation of corruption made against the learned Judge, but, surely, there might be great injustice done by irregularity without corruption, or, at least, where it would be difficult to prove corruption. He certainly should support the motion for inquiry.
§ Sir Robert Inglissaid, that there was no precedent for the present proceeding; but if they went on, he feared they would establish one of a most injurious tendency, as it regarded the administration of justice in Ireland. The hon. and learned Member who brought it forward ought to have given the House more specific evidence in support of his charge. Was it to be thought of for a moment, that a Judge of the land should be condemned upon the charge of an hon. Member of that House, made merely from a newspaper statement—a statement, too, which they had no evidence to show had ever received the sanction of Baron Smith. He hoped he should not be accused of special pleading in this case, but, sitting there in their judicial capacity, he asked if it was too much to require some more tangible evidence than the mere statement of the hon. and learned Member, before they entered upon an inquiry which, no matter how it terminated, would be itself a punishment. The hon. and learned member for Dublin made this charge, or rather these charges, against a Gentleman of first-rate character, and upon whom no imputation had hitherto been cast. The inquiry, he repeated, was one of a most unprecedented nature. His right hon. friend, the Secretary for Ireland, could find no precedent for it, neither could the hon. and learned member for Dublin; so that all they had to go upon was the unsupported newspaper statement produced by that hon. 312 and learned Member, impugning the character of a Judge of the land. The charge made by the hon. and learned member for Dublin, might have been truly reported in the newspaper produced by him; but were that speech even delivered at the table of that House, it afforded no primâ facie grounds for the proposed inquiry. He had heard only a part of the speech of the hon. and learned member for Dublin; but, in his view of the case, it did not bear out his Motion; and with respect to the right hon. Secretary for the Colonies, he thought that, from his premises, it was impossible to come to the conclusion to which he had come. It was a signal perversion of the charge of Baron Smith, to say, that the address alluded to was an attack upon the Roman Catholics of Ireland; for all the Roman Catholics no more desired the repeal of the Union, than all the Protestants, although portions of each mode of belief had latterly become advocates for a dissolution of the Legislative Union between the two countries. Indeed, after the observations which had been made by his right hon. friend (Sir R. Peel), he could not see how the House of Commons could feel itself justified in interfering in this case. Judges should not be lightly dealt by; their functions were too important, and ought to be too sacred to be made topics of party discussion—and with such impressions he must certainly oppose the present Motion. If the promotion of justice, and nothing else, were intended in this case, he would say to the hon. and learned member for Dublin, "Bring your charge at the bar of this House; bring your impeachment before the House of Peers; and by taking such a direct and intelligible course, you will maintain the spirit of the Constitution; but do not, I conjure you, bring serious charges against high and distinguished judicial characters, merely upon the foundation of a newspaper report." It was said by the hon. and learned member for Dublin, that Judges like Baron Smith could not be trusted in cases of libel—that was to say, of political libel. That charge, however, was easy to be made; and, in many cases perhaps, not very easy of solution. But in all cases—criminal, political, or civil—it must be admitted, that the Judge had a power of expatiating upon all the cases which were to come before the Grand Jury; and whether any one of such cases was for libel, or picking pockets, 313 it made no real or essential difference. The Judge had the power, and, unless he completely abused the power of charging the Grand Jury (which was not imputed to Baron Smith), he did not see how that House could properly interfere. Baron Smith had cautioned the people of Ireland against the delusion which was practised upon them, in exciting them to call for a repeal of the Union; and he further characterized the agitation upon that subject as one of the greatest curses that could befal them. It was idle to say, if a Judge had a right to expatiate on any political offence in the calendar when it was sympathetic throughout the country, that he was to be confined in his charge by geographical boundaries. Baron Smith had done no more in the present instance than had been done by the Judges in England, especially on occasion of the Special Commissions which had been issued in 1812 and 1817. Although the calendar did not contain the crime, yet, knowing from general rumour, and the Acts of the Legislature, that it did exist, and formed a ground of the greatest alarm to Government, and to all classes of his Majesty's subjects, the learned Baron had done no more than he was bound to do, in administering salutary warning, and reminding all of the duties they owed to their country and themselves. The Judges in these cases referred to the causes of the crimes which they deplored—they were not censured for having done so; their motives were not maligned; they were not threatened with the censure of that or the other House of Parliament; and he would be glad to know why should Baron Smith be subjected to such an ordeal? Baron Smith had done nothing but his duty, and if that House unhappily should accede to the Motion of the hon. and learned member for Dublin—if that House should submit to be triumphantly attached to the hon. Member's chariot while he drove it through the sides of the Church—if they were also, upon the call of the hon. and learned Member, to bring the Judges of the land into contempt—if, he (Sir Robert Inglis) repeated, such triumphs were permitted to the hon. and learned Member,—the recommendation of the Ministers, the recommendation of the King himself in his speeches from the Throne, would be altogether disregarded. In vain would they proclaim their assent in that part of his Majesty's Speech, which called for the 314 co-operation of all the friends of social order in Ireland, to repress agitation, and give effect to the laws of the country, when one of the chief administrators of that law was upon such slight and unsubstantial grounds, to be dragged almost as a criminal before a Committee of that House. If Baron Smith appeared before a Committee of that House upon the charge as brought against him, he could not return from it without that self-degradation which was inconsistent with that independence which was most essential to the satisfactory discharge of his most important duties. When he was deserted by those who in that House represented the King, the fountain of honour and justice, and who were more especially bound to protect all the ministers of justice, it was expecting too much from human nature, to suppose that, in such circumstances, the independence of the judicial bench, would not, in his person, receive a deadly blow. He trusted he should never see the day—it would be an ill-omened one for the army—when that House would take the sword of command from the King; and equally bad would it be for the justice of the country, if the control over the Judges were taken from the King into the hands of any individual member of that House [Cries of "No, no," from the Solicitor-General.] He hailed that cheer from the hon. and learned Gentleman; he hoped he did not misunderstand it; and that, feeling the difficulty in which the House would be placed in assuming the control of the Judges of the land on no better than a newspaper report, the hon. and learned Solicitor-General would be found to second the Motion with which he (Sir Robert Inglis) felt it his duty to conclude. The hon. Baronet concluded by moving as an amendment the previous question.
§ Mr. Sinclairseconded the Motion. He hoped that this was not to be viewed as a party question. It involved the character of a high public functionary; and the grounds of charge against him should be fully and impartially considered. He did not think that a sufficient case had been established to justify the very grave proceeding which the House was called upon to adopt. In the case of a Judge, a vote for inquiry was almost equivalent to a vote of censure, and would inflict a deep wound on the feelings of an eminent individual, of whom no party had com- 315 plained that he had actually committed injustice. He was surprised to hear that his right hon. friend, the Secretary for Ireland, for whom he entertained a high respect, had changed his mind since he came down to the House. What new light had been thrown upon the subject? The charge was twofold; first, that of having commenced the proceedings of the Court at too late an hour, and continued them until late in the night. Undoubtedly this was a serious charge, but he thought that the first part of the charge had been satisfactorily accounted for; and when Judges were limited in the number of days, it often happened that they were obliged to protract trials until a late hour. He knew that this had lately been the case at the Glasgow Assizes, where the Judge had been compelled to preside during a great number of consecutive hours. The next accusation was that of having promulgated a political charge; but, surely, the right hon. Secretary must have been quite familiar with its import before he came down to the House. Though it was generally not advisable to express political opinions from the bench, it was difficult in Ireland for a Judge, who deeply felt for the evils of his country—in trying individuals for crimes—not to allude to that system of agitation which he might justly consider as their chief source. An English Judge, in trying incendiaries for destroying property, might, without impropriety, allude to the excitement created in the minds of the people, by the harangues of the disaffected and seditious. He was afraid that the Protestants in Ireland—the natural allies of this country—would consider this case, if the inquiry were granted, as an indication that Government intended to discountenance them, and sacrifice their interests at the shrine of their active and agitating opponents. But this was not the consideration that weighed with him; he voted against the investigation, because he thought that an individual in a high responsible office, should not be put on his trial, unless a strong case were made out for the inquiry.
The Solicitor Generalsaid, the cheer which had attracted the notice of the hon. Baronet (Sir R. Inglis) had proceeded from the astonishment he felt at hearing the analogy which had been drawn between the army and the judicial bench, and the inference drawn by the hon. Baronet, that as the army was left to the King, so should 316 the Judges. He had always considered that the hon. Baronet's constitutional learning was too extensive and profound for such an opinion to be expressed by him. Happily, the Crown had no power over the Judges—they were independent of and irremovable by the Crown; but, thank God, they were still under the jurisdiction of that and the other House of Parliament; and the only mode in which their misconduct or incompetency could be dealt with, was by a Parliamentary investigation. He should feel himself bound to vote for the original motion, with pain indeed, but from no party or political motive. He had lately had an opportunity of forming an acquaintance with the learned individual who was the object of the Motion, who, he believed, was a very amiable man, and a most accomplished scholar; but if the charges brought against him by the hon. and learned member for Dublin were true, he was a very bad Judge, and ought to be removed from the judicial bench. There could be no better rule than that which had been laid down by the right hon. Baronet, the member for Tarn worth—"Deal with Irish Judges as you would with English Judges." He had no hesitation in saying, if the charges brought against Baron Smith were true, and he were an English Judge, he would not be permitted to remain on the English bench three months. What were the charges? They divided themselves into two heads. The one was neglect of his judicial duty; the other, that he was in the habit, in addressing the Grand Jury, of delivering party political harangues. With regard to the former, it did not rest on the proceedings at Armagh. The hon. and learned Member rose in his place, and declared, that he was ready to prove, upon the investigation, that Baron Smith did not generally go into Court till twelve, one, two, three, and half past three o'clock, in order to transact his regular business. This was not certainly corruption; but was it not a ground for inquiry? Might he not thus be doing injustice to the public either through negligence or incapacity? If the charges were true—the total neglect of his duties, whether from old age or infirmity—the line of conduct he pursued was equally injurious to the interests of justice, and it was, therefore, most fit that an inquiry should take place. What was the other allegation? That in the month of October last, not for the first time, but in accordance with a habit which it seemed 317 the learned Judge in question acted upon, he wantonly delivered what must be considered a party political harangue, insulting to many of the Grand Jurymen who heard him, both on the ground of their politics and religion. In England no such practice prevailed. The Grand Jury were to be instructed for the due performance of their functions as to any difficulties that might arise, and the evidence on which a true bill was to be found or ignored; but it certainly did not become a Judge, with all the feelings of a political partisan, to deliver a discourse on points which were altogether beside his judicial functions. If the Judge did so, he must say, any one of the Jury might get up and answer the Judge; and although he might be met with the statement, that they did not come together as a debating club, but to administer justice, yet the Grand Juror might fairly and properly remind the learned individual that he ought duly to have considered that circumstance before he delivered his charge; and he did not think it would be easy to get over such an appeal. As to the nature of the proceeding which it was now proposed to adopt, he begged leave to observe, that they did not immediately address the Crown, or move an impeachment. The result of the investigation might be, that the hon. and learned member for Dublin had been misinformed, and there being no foundation for the charges, Baron Smith would be most honourably acquitted, and, instead of being degraded, would return to Ireland in triumph, fully vindicated, and the sphere of his usefulness in that country materially extended. In justice, then, to that Gentleman, the House was imperatively called on to grant the inquiry. A great deal had been said in the course of the Debate as to the present unfortunate state of Ireland. That he as much deplored as any one. He wished to put down agitators and put an end to agitation. He also agreed with those who had expressed their anxiety that punishment should always light on the proper head, and that there should be no such thing as vicarious punishment; but, in the case which had been referred to by the hon. and learned member for the University of Dublin, if the Attorney General, without having such evidence as proved the case against the individual, had filed an ex-officio information, he would have been guilty of a breach of duty, and deserved to be dismissed from his office. The 318 hon. and learned Gentleman concluded by expressing his opinion, that one means effectually to put down agitation was, to prevent Judges from becoming partisans, and uttering their political harangues in the shape of charges from the judicial bench.
§ Sir James Scarlettsaid, he had come down to the House without the least knowledge of what the subject of the debate was; to be. He had indeed seen a notice in the paper of the Motion to be brought forward by the hon. and learned member for Dublin, but expressed in terms which he did not believe would have met one concurrent voice. The notice he alluded to ran thus.—"To call the attention of the House to the conduct of Mr. Baron Smith, with a view to his removal from the bench." Such was the notice on the paper; and the hon. and learned Solicitor General had stated, that if the charges against that Judge were true, he ought to be removed from the bench. The right hon. Secretary for Ireland had communicated to the hon. and learned member for the University of Dublin, that it was his intention to oppose such a motion, and yet, while the proposed inquiry was evidently with a view to his removal from the bench, the right hon. Secretary turned round and declared his resolution to give it his support. He must express his conviction that the right hon. Secretary had not duly deliberated on the important consequences of carrying such a motion. Government ought not to support such a motion without having themselves instituted some preliminary investigations, and been prepared to say, that there was a fit occasion for following it up by an address to the Crown. They might declaim as much as they pleased about the independence of the Judges, but unless they had confidence in the protection of the Government, how could they discharge their functions? If this Motion were carried, all the Judges in Ireland must lose their confidence; and if they had any independence, they would all resign. What were the grounds on which the present inquiry was proposed? They were two—first, that this Judge, under a press of business, had sat up to a late hour in the night. Now, if he were asked, in the abstract, whether it was expedient that a Judge should sit over night, he should say no. The modern practice, in that respect, was much preferable to what formerly obtained, when the Judges went into Court early, and sat till 319 two, then went to dinner, and at four resumed their sittings till a late hour. To sit late unnecessarily was certainly improper; but he would ask whose complaint was it in the present instance? Had any gentleman at the Bar complained? Had the right hon. Secretary for Ireland ascertained that any Gentleman attending that Judge had made the complaint? Had any prisoner petitioned the House through any hon. Member that he had been improperly tried? Had there been any suggestion, and by whom, that that learned Judge had come to an improper conclusion? The statement was, that the learned Judge went into the Court too late. Was the House prepared to appoint a Select Committee with a view to remove him from the bench upon that ground? He knew cases in which English Judges had sat till late in the morning; and he recollected particularly an instance in which Justice Chambre had despatched twenty cases in one night; but he never heard any complaint made of it, although, certainly, he did not commend the practice. This was not a party question; it involved the dignity of that House, as well as the independence and dignity of the Judges. There was a great difference between that sort of practice which was not to be commended, which was to be lamented, and that which was criminal, and to form a ground for dismissal from the bench. Upon a recent occasion he had actually given up a brief and quitted the Court, because the present Chief Justice, whom no one could respect more than he, had determined to proceed with the cause after six o'clock, while it was likely to last till one in the morning; but he should never have thought of proposing an inquiry into the conduct of that Judge on that account. No doubt he did it from the most laudable motives; and so far from wishing to condemn him, he thought that Judge was entitled to praise. Let the House take the case by parts;—was it ready to grant a Committee of Inquiry on such a ground? Then, as to the charge of political partisanship,—no man, he thought, ought to be made a Judge from politics. If he had any, it was his duty to lay them aside when he went to the bench. Nothing was more detestable than a political Judge. But an account of the judicial establishment in general, unless found combined with some perversion of justice, some complaint which that House was bound to notice, the circumstance was 320 not in itself a valid ground to appoint a Select Committee for inquiry. He now came to another part of the case. Allusion had been made to the King's Speech. Might Judges not indulge in the same topics with his Majesty when he spoke to all parties? When his Majesty had declared his determination to support, by all the means in his power, the Legislative Union between this country and Ireland, and to resist all attempts at its agitation, was it a great sin, was it very iniquitous for a Judge, considering the state of feeling which the Government and the King professed, to declare it publicly from the bench, and warn the people against being deluded into the commission of crime by the influence of agitation? But the hon. and learned Solicitor General had said, that the Judge was insulting the Grand Jury. That was a very serious accusation. But had the right hon. Secretary for Ireland received intimation from any of the Grand Jury of the fact? Had any of the Grand, Jury represented that to him? He would take the liberty of stating what he had heard, and seen indeed in print, that the learned Judge had received a deputation from the Grand Jury, who expressed their unanimous approbation of his charge. A Roman Catholic, too, was one of the number; and yet his hon. and learned friend had, in a spirit of the most perfect impartiality—ex uno disce omnia—stated, that Baron Smith had insulted the Roman Catholics by the Speech he had pronounced. No such interpretation could be put upon the passage in question. He had been addressing both Protestants and Catholics; he reminded them, that in union lay their safety, and that those who agitated did not consist of persons of rank, wealth, education, and influence in the country, but of the vulgar members of the people. He must confess he did not see such impropriety in this, being only a re-echo of his Majesty's Speech, as to visit it with the indignation of that House. It was also alleged, that an offence had been committed by the learned Judge in promulgating politics and political economy from the bench. He was old enough to recollect that the Judges of England, at the commencement of the last war, in their charges to Grand Juries, were accustomed to warn the people generally against the introduction of French principles. He had heard a charge of that description delivered by Mr. Justice Buller, 321 which had merited and obtained general approbation. Nay, he happened to know that instructions to that effect had been given to the different Judges by the Lord Chancellor of that day. [An Hon. Member: That was in the time of Elizabeth.] He was an old man, it was true, but not old enough to recollect that period, and he was speaking of what he recollected. At the time to which he alluded, a proclamation was issued by the Crown, calling upon all Judges and Magistrates, in their several capacities, to aid and assist the Government in putting down the attempts made to create sedition and encourage disaffection in various parts of the country. The Judges upon that occasion, as might be expected, did their duty. Mr. Justice Buller, as he had already mentioned, delivered a charge, which did him the highest honour. In that charge he contrasted the constitution of this country with the anarchy of France, and showed, from the contrast, the superior advantages which the people of England enjoyed. The learned Judge was not deemed guilty of impropriety in making allusion to the anarchy which then prevailed in France. Though there was no crime in the calendar which warranted the remarks he had introduced into his charge, it was not imputed to him as an offence, that he had used the influence of his station to repress the disaffection which at that time existed. He asked his hon. and learned friend opposite, to consider the consequences which were likely to result from acceding to the present motion. A Select Committee was moved for to enquire into the conduct of a learned Judge, with a view to remove him from the Bench. His hon. and learned friend had admitted, that if the charges now made against the learned Judge were substantiated, he must, as a matter of course, be removed. By anticipation, therefore, his hon. and learned friend admitted that the charges were true; for no Government could be so weak as to suffer a Judge to be put upon his trial, unless it believed the charges against him to be true. The speech of his hon. and learned friend, when stripped of all periphrasis, amounted to this—" We think the charges against the learned baron true—if true, they ought to be inquired into—and if proved to be so, he must be removed." Now, if his Majesty's Government had placed the charges, of which they thus admitted the truth, upon the table, and 322 had declared their intention of moving an address for the removal of the learned baron, all that would have been in order; but this was not the course which they had deemed it expedient to pursue. On a suggestion made by the hon. and learned member for Dublin, that the learned Judge had sat on two nights later than suited the public convenience, without any imputation that he had by such late sittings done injury or injustice to any suitor—and on another suggestion that the learned Judge had made an address to a Grand Jury, in which he had adopted the language of the King's Speech, and advised them not to follow the path of agitation, but to repress it; on these two suggestions the House was to dismiss the learned Judge from the bench, or rather was to appoint a Committee to do it. Now if such a course were adopted by the House, every Judge in Ireland, who valued his independence, ought to resign immediately his seat upon the bench. He deprecated this motion as pregnant with alarm and danger, and he could not sit down without expressing his astonishment that it should have received the sanction of his Majesty's Government.
Mr. Halcomberose to express his astonishment at the motion which was now proposed for the consideration of the House, and to answer the constitutional argument which was involved in this subject. It was contrary to the law of the land for an inquiry like this, even at the instance of his Majesty's Ministers, to be entered into by Parliament. He differed entirely in opinion from those who had addressed the House in support of this motion. Such a motion as this was calculated to do much harm. Striking, as it did, at the independence of the bench, and unsettling, as it did, the whole system of judicature—establishing a precedent of the most dangerous character, the ultimate consequences of which none could pretend to foresee; it behoved that House, and more especially His Majesty's Government, to act with more caution and circumspection than they now seemed disposed to do, acting under the suggestion, as it were, and at the bidding of the hon. member for Dublin. A subject of such vital interest to the country as that which affected the independence and dignity of the bench, ought not to be agitated in that House as a party question. It was a question touching the administration of justice and the dignity of the 323 bench, and ought, therefore, to be discussed with a calmness and impartiality befitting the dignity of the House and the importance of the subject. He would call the attention of the House to an authority on this subject, which well merited the gravest attention. By the 12th and 13th of William 3rd, it was distinctly enacted that no Judge should be removable except by address from the two Houses of Parliament. Sir W. Blackstone, in the fourth volume of his Commentaries, had laid down very clearly the principles by which the House was to be guided in impeaching the conduct of Judges who had misconducted themselves. According to that learned commentator, the mode of prosecuting a Judge by Parliamentary investigation, was by impeachment before the House of Peers. His language was as follows:—"Though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes as the ordinary Magistrate either dares not or cannot punish. Of these the Representatives of the people, or House of Commons, cannot properly judge, because their constituents are the parties injured, and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason, therefore, will suggest, that this branch of the legislature, which represents the people, must bring its charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies. This is a vast superiority, which the constitution of this island enjoys over those of the Grecian or Roman republics, where the people were at the same time both judges and accusers." Now was not that the very point to which the Reformed Parliament was now hastening? But the learned Judge went on:—"It is proper that the nobility should judge, to ensure justice to the accused; as it is proper that the people should accuse, to ensure justice to the commonwealth." From this passage it appeared, that impeachment was a process well established by our law. There were many precedents for it, where Judges had been guilty of misconduct, in our law books. 324 He held in his hand the fourth volume of Hatsell's Precedents, and he found in it that, "in the reign of Richard 2nd, Sir Robert Belknap, late Chief Justice of the Conmon Bench, Sir Roger Fulthorp, Sir John Holt, and Sir William Burgh, late his companions, Judges of the same bench, Sir John Cary, late Chief Baron of the Exchequer, and John Lockton, late King's Serjeant at Law, were brought into Parliament at the request of the Commons, and there, by all the Commons assembled for all the counties, cities, and boroughs of England, were accused and impeached of certain crimes, viz., for answering certain questions that had been put to them relating to matters of treason, and to which answers they had put their hands and seals, which questions and answers were read to them. To these accusations they severally pleaded, stating the circumstances under which these questions were put to them, and the answers given, and prayed that they might have a gracious and merciful judgment. To this the Commons replied, so and so, for it was not necessary to weary the House by reading the whole trial. That was the course which the House ought to follow now, unless some strong reasons were stated for deviating from it. In acceding to this motion, the House would break in upon the first principles of the Constitution, by putting an individual upon his trial without deciding by a preliminary tribunal whether he deserved to be put upon his trial or not. In so doing, it would make the union of legislative and judicial functions which Sir W. Blackstone had so properly deprecated. Let the learned Judge be taken before the proper tribunal; and if he could not stand before that tribunal upon his own merits, let him be disgraced, if he deserved to be so. One word more and he had done. How would they prove their case against the learned Judge, supposing a Committee to be granted? A Select Committee had no power to administer an oath to any individual. That was a mode of proceeding which he should ever deprecate, although it was the mode by which they were now proceeding to rob the electors of England of their dearest rights. Though he had annoyed the House already by troubling them on that subject. He supposed that he was to understand from those cheers that he had annoyed the House. Well, he was afraid that he should feel himself under the necessity, 325 arising from a conscientious sense of duty, to trouble the House once more upon that subject.
§ Lord Althorpsaid, that the hon. and learned Gentleman had stated very truly the constitutional principle which the House was bound to observe when Judges were impeached, and that he had also stated very truly that it was upon the address of the two Houses of Parliament alone that a Judge could now be removed. The hon. and learned Gentleman, however, followed up his premises to a very odd conclusion,—namely, that because it was only by address from the two Houses of Parliament that a Judge could be removed, and because he could only be impeached for misconduct by the House of Commons, the House was precluded from inquiring, and, in point of fact, was bound not to inquire, into the alleged misconduct of any Judge. Now, would any man pretend to say, that because the House had the power of impeaching a Judge, or of addressing the Crown for his removal, it ought not as a preliminary step to inquire into his conduct at all, because it could not inquire into it under the sanction of an oath? Whenever a case arose demanding the interference of that House, the only mode to which the House could resort to satisfy itself of the justice of its interference was that of examination. It had been argued, and with as much of ingenuity as of ability, that all the charge against the learned Baron rested upon what had taken place on one occasion at Armagh. He admitted, that the charge against the learned Baron was not a charge of corruption, nor a charge that his conduct had been at all in that way disgraceful; but the charge against him was, that a Judge who came into court so late as he was alleged to have done, and who neglected his business so much as he was alleged to have neglected it, acted in a manner unbecoming a Judge. The charge was, not that he had come late into Court once at Armagh, nor that he had come into Courtlate occasionally, as was stated to have been sometimes the practice with some of the Judges in England, but that, entering the court at a late hour was his habitual practice. The hon. and learned member for Norwich had expressed his surprise that any charge should be founded on that which was admitted to be a man's habitual practice. Now, to that argument, if argument it could be called, he 326 would merely reply, that it was because it was the habitual practice of the learned Judge, that the accusation was now brought forward. As far, however, as he could see, this was by no means the gravest charge against the learned Baron. He thought, that the mere circumstance of a Judge making a political speech to a Grand Jury, was pregnant with great evil to the administration of justice. The hon. and learned member for Norwich had stated, that his hon. and learned friend, the Solicitor General, was mistaken in saying, that the learned Baron had insulted the Grand Jury by the charge which he delivered to them; and the proof which the hon. and learned member for Norwich had tendered in support of this allegation was, that the Grand Jury had expressed their concurrence in the sentiments of that charge. Now, that was no justification of the course which the learned Baron had pursued; for if a Judge were to be allowed to make a political charge to a Grand Jury under the supposition that his politics were identified with theirs, it was probable that he might, upon some occasions, enter upon topics in which their opinions might differ from his own. He was afraid, that the practice of making-political charges was more common among the Judges in Ireland, than it was among the Judges in England. He disliked such charges, even when they appeared to be fully justified, if he might use such an expression, by the occasion. The practice of making such charges led to the most injurious consequences, for it brought into dislike, not only the forms, but also the functions of justice. It had been argued as if this motion was a motion for the condemnation of the learned Judge. It was no such thing. He admitted, certainly, that if the case were proved to be such as was alleged, the House would be called upon, and must be called upon, to express their condemnation of his conduct. The accusation made out a case which demanded an inquiry to be instituted, on account of the allegations of misconduct brought against the learned Baron. It had also been said, that Ministers would not have acceded to the present motion, unless they had believed in the truth of the charges preferred against the learned Baron. He would admit, at once, that, he certainly believed, that the learned Baron had been guilty of the misconduct of which he was accused, 327 That being the case, he must also observe,; that the argument, that "Government ought not to interfere unless it were convinced of the truth of the charges against Mr. Baron Smith," was not entitled to any weight. It had been argued that it was inexpedient, unless the public suffered severely from a Judge's misconduct, to bring it under the notice of the House. He was ready to grant, that any attack upon the conduct of a Judge, when his conduct was not brought specifically under the notice of the House, was highly improper; but on the present occasion, the conduct of a Judge was brought specifically under its notice, and the House would abandon its duty if it did not take that conduct into its consideration, for it was only in Parliament that the conduct of the Judges could be freely considered. Such being the case, he felt it to be impossible for the House to refuse the present inquiry. The right hon. member for Tarn worth had spoken in warm terms of the propriety of respecting the independence of the Judges. There was no man who set a higher value than he set upon their independence; but he could not see how that could suffer if the House were to examine into, and express its opinion upon, the alleged misconduct of one of their number. He should be most happy to find, that the learned Baron had not been guilty of the misconduct imputed to him; but the case being, as it then was, before the House, he did not see how inquiry into it could be refused. He agreed with his hon. and learned friend (the Solicitor General), that if such a statement as that which the House had heard that night had been made against any one of the Judges of England, there would not have been a moment's hesitation about the necessity of the House's proceeding to some decision upon it. He considered it to be very desirable to assimilate, not only the law, but also the administration of the law, in England and in Ireland. The only way to conciliate the affections of Ireland to England, and to cement the connexion between the two countries, was by satisfying the people of Ireland that, when any charge of misconduct was brought forward against any public functionary residing among them, that charge would be treated in the same manner as a similar charge against an English functionary would be treated, and by convincing them that Government would sanc- 328 tion no endeavour to screen a Magistrate in Ireland, for conduct which, of necessity, must be censured in England.
§ Mr. Plumptreobserved, that he did not know that he had ever been more deeply pained than he had been that evening on hearing; the determination of Government to accede to the Motion of the hon. and learned member for Dublin. He considered it, not only a most unhappy, but also a most unjust determination; for what, he would ask, was the whole amount of the charges brought against the learned Baron? It was simply this—that the learned Baron occasionally came into Court at a later hour than that which suited public convenience, and that he occasionally mixed too great a spice of politics in his judicial charges. He had not been charged with corruption,—he had not been charged with partiality—he had not been charged with injuring, by his late hours, any individual who had come under his jurisdiction; and yet this learned, able, and faithful Judge, the oldest Judge now on the bench, was to be brought before a Select Committee on such) trifling charges as these! He again repeated, that he was deeply pained by the determination of Ministers on this question. He thought it a most undesirable thing in the present state of this country, and still more so in the present state of Ireland. It would bring the Judges into disrepute—it would stop their mouths on a variety of important topics—and what was worse than all, it would seriously impede the course of justice.
§ Mr. Finnsaid, that during ail his attendance in that House, he had never witnessed any conduct on the part of his Majesty's Government, better qualified than their conduct on the present occasion, to give confidence to the people of Ireland. Gentlemen were at liberty to laugh, but he would, nevertheless, repeat the assertion. Without naming individuals, he would merely mention as matter which came within his own knowledge, that at a particular period, circumstances connected with the promotion of an individual to the judicial bench, had produced consequences of which they had not yet reaped all the bitter fruits. The learned Judge, whose conduct was under consideration, had assailed him from the bench. Could the learned Judge point out an instance in which he had ever assaulted the learned Baron? The learned Judge 329 also talked of "shabby economy." One would suppose that he had been reflecting on the hon. member for Middlesex. He next talked of the dignity of the bench, and wished the Judges to enjoy their penury in independence. Now, in reply to that observation, he would merely remark, that he thought that all the Judges were too highly paid. Indeed, all our public functionaries were too highly paid; and if their salaries were reduced, the, people might have the benefit in a reduction of taxation. Why should we pay; from 3,000l. to 4,000l. a-year to our Minister in Switzerland? That was a larger sum than was paid in salary to all the other foreign ministers to that state put together. He should support the Motion.
§ Mr. Serjeant Spankiesaid, though there were strong and powerful objections to the mode of proceeding now sanctioned by Government, he would not stand upon them, but would take it for granted, that the delinquencies charged against the learned Baron could be proved, and would say that, even in that case, they would not be worth the time which must be expended in examining them in the Committee. It appeared from evidence which had been upon the Table of the House for the last ten months, that the learned Baron was late in coming into Court. Was that no offence? Yes, it was an offence; and that it was so considered, might, in common fairness, have been communicated by the Government to the learned Baron. Had such a communication been made, the offence might have been repented of altogether, without bringing into play so powerful an engine as the prosecution of a Judge by the Commons of England. They ought to reserve such a weapon for a fit occasion, and should not draw it at the call of every brawler. Another offence charged against the learned Baron was, that he had delivered a speech from the bench, in which he had entered into a discussion on the state of Ireland, and had made various reflections upon the parties by which that country was distracted. Granted that he had done all this,—what then? It was admitted on all hands, that if there had been in the calendar any transgression connected with the disturbed state of Ireland, the learned Judge would have been fully justified in offering to the Grand Jury the observations which he had addressed to them. Now he was in- 330 clined to contend that, if ever there was an occasion on which such observations could be more suitably offered than on another, it was when he had before him a Grand Jury which could not be inflamed into finding bills improperly, and when there was not a single person to be punished for such violations of the law. Was the House, he would ask, bound to punish a Judge for indiscretion? Had not the House had enough of indiscretion already? Would it bring this Judge, the friend and correspondent of Burke—a circumstance which, in itself, was a high honour to any man—would it bring him over from Ireland to this country for the purpose of placing him at the bar as a delinquent? Where was the generosity, where, indeed, was the justice, of rendering miserable the dying hours of an honourable man, merely because he had made reflections disagreeable to certain parties in Ireland? It had been the practice of many of the English Judges to make political harangues to Juries. Mr. Justice Bayley had delivered one in which he had criticised the National Debt. Lord Wynford had indulged in twenty such discourses—some more, some less wise—some more, some less political; but never had the English or the Scotch Members of Parliament supported against them a Motion like the present. If it were carried, the judicature of the kingdom would be placed in jeopardy—nay, the independence of the bench would be annihilated. It was a question not mooted, he contended, for the sake of justice, but of political partisanship. Charges like that of the learned Baron, had been made by the best of our old Judges; and if such interference were to be sanctioned by the House of Commons, as it was two centuries ago all law would be at an end. He must complain of the manner in which the present Motion had been introduced to the House, inasmuch as the friends of the learned Judge had had no opportunity afforded them of meeting the accusations against him, and showing their futility. And after all, the alleged offence was but trivial. It was not a speech delivered a Hull; but the charge of a Judge, animadverting on the almost total disregard to law and order which prevailed among the populace of Ireland. For this offence, was he to be removed from the exercise of his functions? He trusted the House would not proceed in the matter, and that 331 the previous question might be carried; at all events, he hoped some interval—some pause—would be allowed to intervene before the House came to a decision. Spatium requiemque furori sit. It was a question not merely concerning the independence of the Irish Judges, but those of England and Scotland also. "Let the case be tried openly at the Bar of the House. Give the learned Judge the consolation, at least, of receiving the public protection. Let this case be fairly tried, and if he should be doomed to perish, let him perish in the face of day."
§ Colonel Vernerobserved, that from information he had derived from a gentleman holding an official situation in Armagh, he had learned that the press of business on the occasion in question, had rendered the assistance of other Judges necessary. Had this course not been adopted, many of the cases could not have come on at all, and many of the prisoners must have been remanded until the next assizes. With regard to the charge of the learned Judge sitting the greater part of the night, he had ascertained that he had only done so at the express solicitation of the counsel on both sides, as the cases on the calendar were of such a nature, as not to admit of bail. The charge complained of, the gallant Colonel contended, was directed to allay the state of excitement in Ireland, and was not to be attributed to the wish to excite feelings of political animosity.
§ Mr. George Frederick Youngsaid, he could not content himself with giving a silent vote upon this question, nor avoid expressing his concurrence with the hon. member for Kent, in the surprise and regret which he felt, that the right hon. Secretary for Ireland should have committed himself, by such an indiscretion, as giving a hasty and precipitate acquiescence in the Motion of the hon. member for Dublin. He regretted, that when the right hon. Gentleman was induced to change his own mind on an important question, he had not required time for the Government to consider what course it would be expedient to adopt, and also for the Members of that House to weigh maturely the measures which were proposed. With reference to the question itself, he had heard with much surprise—in common, he presumed, with the most of the English Members, who were only aware of the practice in this country, and 332 the hours at which business commenced here—that a learned Judge did not commence the business of his Court until half-past eleven o'clock. But that was explained by an hon. Gentleman, who told the House, that the hours of business in Ireland were different. He regretted, therefore, that Baron Smith should be called upon to answer for what turned out to be a general practice. If his recollection served him rightly, he believed that Colonel Despard received sentence at six o'clock in the morning, and, as a case within his own experience, he could mention that, within the last three years, he was a prosecutor in a case of felony, and having left the Old Bailey at eight o'clock in the evening, on an assurance that there was no probability of the trial coming on, the prisoner was arraigned at nine o'clock, and was acquitted in the absence of a prosecutor. When Gentlemen talked of an assimilation of the practice in England and Ireland, he thought it hard that a particular case should be pressed against a Judge in Ireland, and that no notice should be taken of the practice in this country. With respect to the political allusions, which were made another ground of complaint against Baron Smith, he was not a little surprised to hear the noble Lord opposite speak of the learned Baron having been in the habit of making such political allusions. He believed, that the charge before the House was limited to one specific instance of that nature. He deprecated improper political allusions as much as any man could do, but he had not yet heard a line of demarcation drawn, which would point out what particular allusions of that nature were amenable to the censure of that House. Being satisfied that the offence charged, even if proved, was a venial one., while the course proposed would tend to the establishment of a dangerous precedent, he could not support the Motion of the hon. member for Dublin, but should vote for the previous question.
§ Mr. Hardybegged to be allowed to explain the reasons on which the vote he intended to give was founded. It appeared to him, that to adopt the Motion of the hon. and learned member for Dublin would be to set a precedent of great injustice. If the hon. and learned Member had intended to press so strongly the circumstance of the learned Judge's not coming into his Court until half-past 333 eleven o'clock, he ought to have stated it in his notice, and then the learned Judge's friends might have been prepared with a full explanation of all the circumstances of the case. He knew nothing of Mr. Baron Smith, or any of his connections; but if he were to agree to the Motion before the House, on the grounds which had been stated by the hon. and learned member for Dublin, he could not sleep in comfort. If the charge which grew out of the alleged late hours were to be brought at all, it ought to be brought against his Majesty's Government; for if it had been the learned Judge's habit for thirty years to go into court at improperly late hours, why had not his Majesty's Government intimated to him that it was a practice which must be discontinued? If, also, the learned Judge had, as was alleged by the hon. and learned member for Dublin, been in the habit for the last three years of making political charges from the Bench, it was the fault of his Majesty's Government that they had not interfered in the subject. In those three years the learned Judge must have gone six circuits. Was it not the duty of his Majesty's Government, or of the Lord Chancellor of Ireland, to intimate to the learned Judge on the first, or at any rate on the second occasion that he must abstain from such political addresses? No fault, however, had been found with the learned Judge by his Majesty's Government, and so it appeared that he proceeded. With respect to the matter itself which the learned Judge was accused of having introduced into his charges, it appeared to him that in the agitated state of Ireland, and under all the circumstances which grew out of that agitation, it was the imperative duty of a Judge to advert to topics calculated to restore tranquillity, the more especially when he saw the country swarming with publications of the most pernicious nature. It did not follow that, because there was no political offence in the calendar, the Judge should abstain from all political allusions in his charge to the Grand Jury. It frequently happened that the bills prepared before the Grand Jury by prosecutors were of a nature of which the Judge could not have any idea from the calendar. Under these circumstances, it was the learned Judge's duty to explain the law to the Grand Jury, and to caution them from being led away from the performance of their duty by the cones- 334 quences of the existing agitation, Upon the whole, it appeared to him that it would be an act of the greatest injustice to call upon the venerable Judge, to come over to this country to answer a charge which, if proved, was so trifling in itself, and so unworthy of serious attention.
§ Mr. Christmassaid, that, as the Government had altered their opinion once already, the explanation of the hon. member for Armagh (Colonel Verner), that Baron Smith sat at late hours with the consent of counsel on both sides, ought to induce them to alter it again. It appeared to him that what the hon. member for Dublin had introduced as a make-weight, was to be in reality the means of carrying his Motion. If there had been nothing but late hours to complain of, the House would never have heard of this charge. Then, as to political harangues, he did not agree with the doctrine which had been laid down by the hon. Member on that subject. The right hon. Secretary for the Colonies had admitted that there were occasions which would justify political harangues. If any occasion could furnish such a justification, was not the condition of Ireland precisely that occasion, when large masses of the people, instigated by agitation, took the law into their own hands, and not content with attacking property, placed life itself in danger, and proceeded to extremities utterly subversive of all order? The learned Baron, no doubt, felt it his duty to impress upon the Grand Jury, as Magistrates, and preservers of the peace, the necessity of discountenancing proceedings so dangerous to the peace of society. He would ask, what good could come of inquiry? Suppose the learned Baron did come into Court at half-past eleven o'clock, was the House on that ground to address the Crown to remove him from his office? He was ready to concur in the opinion that political harangues might create in the minds of the people a suspicion of partiality where no partiality existed, but he was sure that Baron Smith possessed sufficient good sense to discontinue the practice, if he found that that House considered it inconsistent with the due administration of justice. Feeling that there was not sufficient ground to put the learned Baron upon his trial, he could not conscientiously vote for the inquiry.
§ Sir James Grahamsaid, that he never rose to deliver his opinion to the House 335 under feelings of more concern than he I did on the present occasion; but he; believed he should be acting unfairly by his colleagues, if he were not to state shortly, but distinctly, the grounds of the vote he was about to give. The hon. Member who had just sat down had said, that the Mouse had changed its opinion once, and might do so again. He, as a member of the Government, certainly came down to the House with the understanding that his colleagues meant to oppose the! present Motion. He still retained his opinion; he saw no reason to change it, he intended to vote with the hon. member for the University of Oxford; and he must declare, as one who valued the independence of the Judges, and his own character, that if the Motion were acceded to, and an address to the Crown presented, for the removal of Baron Smith from his judicial situation, it would be a highly inexpedient—nay more, a most unjust proceeding. The question was, more or less, a judicial one, and one he did not feel himself adequate to discuss; but, after the speech of the hon. and learned member for Finsbury (Mr. Serjeant Spankie), he had no doubt on the subject, and, as an humble individual whose character was dearer than any other consideration, he felt that he could not support his colleagues in the view they had adopted with regard to it. The present would be the most painful vote he had ever given, since he felt it incumbent upon him to sever himself from those friends with whom, during a life of some duration, he had had the honour of acting; but feeling, as he did, the proposition to be one dangerous in itself, he conceived he should be betraying the trust committed to him by his constituents if he did not declare against it. He should never forgive himself were he to adopt a contrary line of conduct. He again professed his inability to argue the question, but felt he should not discharge his duty to the satisfaction of his own mind unless he voted against the Motion.
§ Mr. Humesaid, the speech of the right hon. Baronet very much surprised him; for, since he had been in that House, he had never heard a more unconstitutional and completely Tory speech than that of the hon. and learned Member to whose arguments the right hon. Gentleman attached so much importance. He was, therefore, not surprised to hear it echoed 336 and cheered as it had been at the Opposition side of the House, but he was surprised to hear the resolution which the right hon. Baronet formed upon it. From what he had heard of the conduct of this Judge, he must say, that the Government had done themselves honour by taking up the question. He could ask the right hon. Baronet with what consistency of honour or character he could advise his Majesty to denounce the whole Irish people, because one man was an agitator, and, now refuse to do equal justice—for he considered that the Government, by taking up this question, gave a strong proof of their determination to do justice? The right hon. Baronet had advised his Majesty to denounce political agitation, as injurious to the people of Ireland, and that House had echoed the sentiment. He did not consider it worthy the attention of the House; but, if the right hon. Baronet thought fit to introduce in the King's Speech a denunciation against Daniel O'Connell, (for that was the person whom he understood to be meant), why did he not concur in doing equal justice when a Judge upon the Bench became a political agitator and pronounced political harangues; when, as the right hon. Secretary for the Colonies observed, no person was charged with the offences to which allusion was made? If a practice had been persevered in for years, that was no reason why it should be allowed to continue. It appeared to him that there was great room for inquiry. All the Judges required admonition, and he trusted this would be effectual.
Mr. Hughes Hughescongratulated the country and the House upon the fact that, at all events, one of his Majesty's Ministers was not satisfied to consign over an aged Judge to the fury of the agitator of Ireland. He felt in common with the right hon. Baronet (Sir James Graham), who had done himself so much honour by the speech which he had just delivered. The hon. member for Armagh had convinced him that on one point no charge could be sustained against Baron Smith. It was well known to those hon. Members whose duty it was to attend at the Old Bailey, that the Judges retired from the Court at five o'clock, and that then the Recorder and his assistants proceeded to try causes until ten o'clock or later. The House had heard from the gallant Member (Colonel Verner) that Baron Smith, 337 in adopting similarly late hours, conformed to the wishes of counsel on both sides. The other point before the House, on which the accusation was founded, was the delivery of a political charge. The fact, however, was, that the King's Speech denounced agitation in Ireland, and was it to be tolerated that a venerable and respected Judge should be brought to answer at the bar of that House for echoing the sentiments contained in the King's Speech? He should certainly vote with the right hon. Baronet (Sir James Graham) against the Motion.
§ Lord Sandonsaid, it was most disgraceful on the part of Ministers to change their minds after coming down to the House prepared to refuse an inquiry. What new facts had they heard which could induce such a change? Was it in this way, he would ask, that a Judge was to receive notice from Ministers of their sanctioning an accusation against him, and that Judge, a man who had for thirty years filled his seat on the Bench? Was such the only notice he was to have—and that, too, in despite of promises made to that Judge's friends, that Ministers would oppose the Motion? Yet this very thing which they had made up their minds to oppose, some of them now thought afforded sufficiently good ground for an impeachment. As to the late hours, that fact was previously well known to the right hon. Secretary for Ireland, for it had been notorious for years past, and was well known to many other parties in that House. The other question was on the political charge delivered by the learned Baron; but was there a man in that House, or in the country, who could believe that Ministers were not aware of its nature prior to that Debate? Was the right hon. Secretary not acquainted with it. Had he read it? Or was his resolution changed by the speech of the hon. and learned Gentleman directly pointed at in that charge? He could not conceive any species of conduct so destructive to the dignity of the Government, to the harmony of the Ministry amongst themselves, and to the dignity of that House also, as that of bringing forward such grave charges upon such slight grounds. It was strange, too, that Ministers did not agree in the reasons which induced them to support the Motion for inquiry. The right hon. Secretary for Ireland voted for inquiry expressly, because the facts, even 338 if established, were not sufficiently serious to involve the removal of the learned Judge from the Bench, while the learned Solicitor-General agreed to the Motion expressly because it was sufficiently serious to involve his removal. Whether or not this subject would not lead to a more extended dissension amongst Ministers, must appear at the next stage of the proceedings. Assuming the facts stated by the hon. and learned member for Dublin to be true, were they prepared to go the length of impeaching such a man as Baron Smith? and all parties bore testimony to his worth. He was respected by all who knew him, and were they merely at the instance of the hon. Member who was directly pointed at in his charge to drag him before that House. He trusted the House would not agree to the inquiry, against which he should certainly give his vote.
§ Lord John Russellsaid, he had not intended to take any part in the present discussion; but seeing that it was accompanied with circumstances of a very painful nature, and that it had excited a lively interest in the House, he did not think that he should be doing his duty if he voted in favour of the proposed inquiry, without shortly stating his grounds for doing so. His noble friend, if he would permit him to call him so, who had just sat down, had said, that it was discreditable to the Government to come down to the House with the intention of refusing an inquiry, and immediately afterwards to change their minds and acquiesce in such inquiry. His right hon. friend (Mr. Littleton), however, had stated that the reason of their acquiescing was, because the motion had been materially altered. Instead of being a motion for removing the learned Baron from the Bench, it was now only a motion for inquiry. Upon the same grounds as had been stated by his right hon. friend, he would support the motion for an inquiry. He did not think that the charges, though grave, were of such an extent as, even if fully proved before the Committee, would authorise them to vote an address to his Majesty, praying for the removal of Baron Smith from the Bench. But without concurring in that, what he would ask, were the circumstances of the case? An inquiry was asked for, because there was a want of readiness and punctuality on the part of the learned Judge—in itself a grave charge; and 339 because of his delivering a political address from the Bench. He would not detain the House upon the first point, further than to say, that the hon. and learned member for Dublin had made a grave charge; but if, on inquiry, it should appear that the learned Baron was induced to sit at late hours by the request of Counsel on both sides, such an explanation would go far to extenuate such a charge. For that very reason, therefore, he thought it was necessary to appoint a Committee, that, having before them the facts, as stated in the accusation, they might also have the learned Judge's defence. With respect to the second charge, of the learned Judge's having delivered political charges, he would only ask who there was, even amongst the most zealous opposers of the inquiry, that would say it was laudable for a Judge to pour forth political disquisitions from the Bench, in favour of or against particular political parties? The question then was, whether that House, by assenting to the Committee of Inquiry, would affix its condemnation to that practice, whether they would visit it with the censure of the House of Commons, or whether, by refusing to entertain the motion at all, they would virtually say, that the practice called neither for censure nor condemnation, and that the Judges of Ireland might indulge to any extent—to any degree whatever—in political and party disquisitions?—Whether, in fact, they would enable all Judges hereafter to say to the House, "You have passed by Baron Smith, and are therefore unable to enter into the question as regards us?" That was the simple question to be considered. He did not propose, in voting for this inquiry, to arrive at the result of addressing his Majesty for the removal of Baron Smith, but he did propose to check the practice, which it appeared prevailed in Ireland. The practice which prevailed in this country at the beginning of the French war, alluded to by the hon. member for Norwich, was not the general practice of this country. That was a period of peculiar and dreadful excitement, to which he could only look back as a time when the Government of this country was conducted with a disgusting spirit of persecution. He certainly should not draw a precedent from that period, when it was only by the singular talents of Lord Erskine that some of the most 340 honourable and innocent of men were rescued from a shameful death. Looking, however, at happier periods, and at the better times of the constitution, he found the Judges of the land had systematically and cautiously abstained from such party and political harangues, and had omitted to indulge in the topics now referred to. As his learned friend said, if any Judge in England ventured to call the great mass of the community "vulgar numbers," and had indulged in irritating disquisitions on political parties, there was no one who would not unite in censuring such passages; and if that would be the case in England he felt bound to extend a similar feeling and a like practice to Ireland. It was said, that this practice had gone on for years in Ireland; in reply to which, he would say, that it was quite time that it should be put an end to. He could not admit that the purity of the Judges was good for England, but not for Ireland, or that in the latter country the Judges might enter upon political disquisitions which would not be admissible here. He hoped, on the contrary, that the House would establish, by granting this Committee, that the same practice, neither better nor purer, but as good as in England, should prevail in Ireland. As to the phrase of "vulgar numbers," he thought it peculiarly unhappy; he had always considered that in the eyes of a Judge, the humblest of the King's subjects was equal to the highest, and that it ill became such an individual, seated on the bench of justice, to talk of the superior rank or wealth of the one, in invidious contrast with the poverty, ignorance, or degradation of the other; the only question for the Judge being guilt or innocence, right or wrong; and his only task to do his duty impartially, and without respect to persons.
Mr. Baringsaid, the result of this discussion was so far satisfactory, inasmuch as it proved that in a question of so much importance as the independence of the Judges, all party considerations should be set aside; that such a question was much too grave a one to be decided by ordinary feelings. He was not surprised at the course pursued upon that occasion by the right hon. Baronet (Sir James Graham). In fact no two of his Majesty's Ministers were agreed in their view of the question. The right hon. Gentleman, the Secretary for Ireland, altered his opinion, and that 341 in a way most unfavourable to the learned Judge—in a way which must inflict upon him additional pain, for that learned Judge had information communicated to him by the right hon. Secretary that the Motion would not be entertained by Ministers, and yet he now supported it.
§ Mr. Littletonbegged to explain, he had expressly stated that a communication had taken place between the learned Recorder of Dublin and himself. The learned Gentleman had asked him what course Government meant to pursue in the case of Baron Smith, and he replied that he intended to oppose the Motion for removing the Judge, but that, at the same time, he should express himself with can-do and sincerity upon the charge against Baron Smith, and rather strongly too. The learned Recorder since then accused him of changing from his steadfast resolution to oppose the Motion; but the fact was, that he would have given his steadfast opposition to the Motion if it had not been altered. He would ask any hon. Member to look to the notice-book and judge for himself whether the Motion had not been materially altered by the hon. and learned member for Dublin, from what it was in that book. In that book the Motion was for the removal of the learned Judge, but the hon. member for Dublin now wished only for inquiry. Indeed, it was not until the hon. member for Dublin had nearly concluded his speech, that he had changed his intention of opposing the Motion. He thought he had thus completely absolved himself from the charge of the hon. Member.
§ Mr. Shaw, in explanation, said, when I before addressed the House, motives of delicacy restrained me from expressing how deeply I had felt the conduct pursued by the right hon. Gentleman in reference to the communications which had passed between us—but as the right hon. Gentleman has alluded to the subject, can now have no hesitation in declaring that I consider the right hon. Gentleman's explanation wholly unsatisfactory. First, as to the notice and Motion being differently worded—I see no substantial difference beyond the notice which had been merely general and vague, having now assumed a specific form. Next, as to the conversation itself. It was true, as stated by the right hon. Gentleman, that he assured me that the Government would oppose the Motion, and that while he (Mr. Littleton) 342 would express some disapprobation of the particular charge in question—he would not say a word that would hurt the feelings of the learned Judge, for whom he entertained the most unfeigned respect; but the right hon. Gentleman has omitted the most important feature of the conversation, and that which makes me think he has not properly characterized the conversation as a casual one—it is this—the right hon. Gentleman added he not only authorized, but requested me to make the communication to Baron Smith, which he (Mr. Littleton) had made to me. I did so, by the post of the day the conversation occurred, (about a week ago), and observed at the same time to Baron Smith, that such being the case, the whole would probably end in an abusive speech from Mr. O'Connell, and that Baron Smith need feel no uneasiness as to the result. I myself was not undeceived by the right hon. Gentleman, until a few minutes before he rose to address the House this night.
Mr. Baringproceeded. The great hardship of the situation in which the learned Judge had been placed was fully made out by the explanation. Must not the learned Judge, in consequence of the communication made to him by the member for the University of Dublin, have been fully convinced that Government did not mean to support any such Motion as this? No two of the Gentlemen who spoke from the opposite side agreed in their view of the question. The noble Lord (the Chancellor of the Exchequer) said, he could not support such a motion, unless with a view to the removal of the learned Judge, if there should appear, upon inquiry, that there was sufficient ground for it. No Minister could support such a Motion with any other view. The right hon. Secretary said, his object was to protect him; and the noble Lord said, that even if the charges were proved, they would form no ground for removal from the bench. No two, therefore, of the Ministers agreed upon the point. With respect to the mixing up of political discussion and political allusions, in a charge to a Grand Jury,—before they proceeded further upon the Motion, they should first have before them the precise nature of the charge, and the facts upon which it was proposed to support it. They would not condemn even a waiter at the Custom. 343 house without having the charge submitted to them. It would be against all form, against every thing like justice, to call before them this learned Judge without knowing what the accusation against him was. The ground of the Motion was, that Baron Smith delivered a political charge to a Grand Jury. Now, before Gentlemen voted, they should at least have before them that charge to the Grand Jury, in which he was said to have mixed up political considerations. No person would deny that it was the duty of a Judge to explain to Grand Juries the nature of such crimes, and the law upon such offences as might be prevalent at the time the charge was delivered. In an agricultural county, if the crime prevalent was, as might naturally be supposed, horse-stealing or sheep-stealing, the Judge in his charge would naturally dwell upon that crime. If the offences were of a political nature, arising from agitation, he would naturally allude to them. In the different counties of Ireland, where outrages were committed daily and nightly, by white feet and ribbonmen, and other lawless persons under different denominations, must Judges say that they feared making any allusion to the state of the country, lest they might be considered as political Judges? If Baron Smith went further than others into political disquisitions and into party matters, it might be imprudence, it might be bad taste, and, if carried too far, it might become the duty of the House to take notice of it; but it could not, in fairness, under all the circumstances, form a ground for bringing the learned Judge before them. It was said, he was in the habit, of such practices. Now, had he received any intimation or any admonition upon the subject from the Irish Government? and if any such was communicated to him, did he neglect it? He would not give the hon. and learned Gentleman, the member for Dublin, the name of the great agitator of Ireland, because he was proud of the name. He was happy to perceive, from the manner of the hon. and learned Gentleman, that he was not proud of the designation. The agitation alluded to in the speech of the learned Judge was all produced by the hon. and learned Gentleman. Now, the Judge was to be condemned, and no notice at all taken of the great cause to which all was to be attributed. It would be base to 344 abandon thus a Judge of the land; it would, in fact, be a notice to the whole country, that the hon. and learned Member was the master of Ireland, and that Government could not and dared not any longer resist whatever he might think fit to propose. According to the forms of the House, the mover named his own Committee, and in this way the learned Judge might fall into the trap of the hon. and learned Member. If this was not supported and proposed as a party question, he ventured to say, there would not be found in the House ten Gentlemen who would vote for it.
§ Mr. John Youngwished to put the House in possession of a fact which had just been communicated to him by his hon. and learned friend, the member for the University of Dublin, and which might be considered material for hon. Gentlemen to know before the division took place. It was—that, in addition to being deserted by the Government, who promised and were to have defended him, Baron Smith was, up to that hour, ignorant that the charge of sitting at a late hour in the day, and of keeping his Court open at night, was to be renewed against him. It had been preferred and abandoned in the last Session. The hon. member for Middlesex had talked of equal justice to those aimed at in the Speech from the Throne, and to the learned Baron; but where was the equal justice? Was it not monstrous to institute such an inquiry without notice given, to afford means of defence, and prepare new defenders in place of those who had so unexpectedly and strangely failed the learned Baron? In the name of those he was politically acquainted with—in the name of the country Gentlemen, the Magistrates, and Grand Jurors of Ireland, whose sentiments he ventured to assert he was speaking—he protested, in the strongest and most decided terms, against that extraordinary and uncalled-for inquiry. The concluding paragraphs of the Speech from the Throne had given satisfaction to vast numbers of the population of the north of Ireland; and the appeal of his Majesty to the "loyal and well-affected, to come forward in aid of the Government with vigorous and united efforts," had found a response in many a breast. That appeal had done more to dissipate the apathy, and secure the cooperation of thousands, than all the long and eloquent epistles which a distinguished 345 advocate for repeal had addressed to their passions and their prejudices, had been able to effect in shaking their allegiance to the British Crown, and destroying their confidence in the United Parliament. But as their hopes had been raised, so would their disappointment be the more bitter, when they found the first practical fruit of the professions contained in the Address would be that inquiry, which had been denounced by one of the first authorities in the House as a fatal precedent not in accordance with usual forms, and which, while it grasped at vain and ill-founded popularity, was undertaken on slight and insufficient grounds, and could never be followed up by any ulterior measure of importance.
Mr. Secretary Stanleybegged to address a few words to the House in reference to a communication he had had with the learned Judge. He begged to say that three or four days ago he received a letter from the learned Judge respecting the course which he might feel it his duty to adopt in reference to this subject. He had stated in reply, that wholly ignorant as he then was of the extent of the Motion which the hon. and learned member for Dublin intended to bring forward, he felt that a strong case, indeed, should be made out to justify any Motion for the removal of the learned Baron from the bench; but that before he (Mr. Stanley) had heard the charge and the evidence on the subject, he must decline to go into it. Having now heard the charge, and the evidence upon which it was brought forward, he felt it his duty as an honest man to declare, that he did not think there was a sufficient case to call for the learned Baron's removal from the bench; but that he did think a sufficient case had been made out for inquiry and investigation. He would not trouble the House much longer; but he would remind those who cried "Spoke" that he had not spoken upon the amendment. He would merely repeat what he had already said, that having heard the case, he did not think that it was one that would justify the removal of Baron Smith from the bench, but that it did seem to him one which rendered it essential for the House to inquire whether or not that learned person had been pursuing a course of proceeding detrimental to the interests of justice. It was with those sentiments, and with no wish to disparage the character of that learned Judge, that he (Mr. Stan- 346 ley) felt it his duty, not as a member of the Government, or a member of a political party, but as an unprejudiced Member of that House, to give his vote for the present Motion.
§ Mr. Barronsaid, that the great majority of the gentry and Magistrates in his part of Ireland would, in conjunction with the people there, feel highly indignant if the House did not lend itself to this inquiry. They would have no confidence in the House if it did not do so; and its refusing such an inquiry would, he was sure, strike a fatal blow to the union of the two countries. It was not upon one, or two, or three, but on many occasions, that Mr. Baron Smith had delivered such extrajudicial charges as that of which the House had had a specimen that night. He hoped that hon. Members, in deciding that question, would not be biassed against the Motion by the political character of the hon. and learned Gentleman who had brought it forward. He could state, that other hon. Members, totally unconnected with that hon. Gentleman, had determined to bring the matter under the consideration of the House, and that they had only been prevented from doing so by the previous notice of the hon. and learned Gentleman on the subject. Let the House, he would say, decide the case not upon the merits or demerits of that hon. Member, but upon the facts as laid before it.
Mr. O'Connellin reply, wished to bring back the attention of hon. Members to the true position of the case. He had not moved for an impeachment, or, in other words, for removal; for he felt that such a course would be opposed, and successfully too. He asked not for condemnation, but simply for inquiry; and this on two grounds: first, for neglect of duty; and next, for abuse of duty, in mixing up with the performance of it political partisanship. He asked for inquiry, because Baron Smith, a Judge of the land, was a partisan; because he was not an impartial arbiter, or, at all events, was not looked on as such; because the people must suspect that the sources of justice were not clear—its administration not even-handed. He did it that the law should be respected—above all taint—and above all suspicion. Here was an absolute partizan, in a situation which empowered him to adjudicate on the lives and properties of thousands, and on their opinions, he having previously made up his mind and condemned them. 347 How was is it the Ministers should be so unanimous when coercion was talked of, and that when justice was asked for, there should he a mutiny? Should it be said in Ireland, that when coercion was asked for, Ministers could at once take the House along with them; but when the theme was justice, they were deserted? He did not mean to say they would negative his Motion. He believed they would not. All he meant to say was, that if they did refuse inquiry, both these deductions would be the natural result—that when Ireland was to be coerced, Ministers were unanimous, but when a partizan Judge's conduct was to be inquired into, the noble feelings of the heart were found to obscure the judgment, and the House sided against the people. All he demanded was a full, fair, and impartial inquiry; give him that inquiry, and he promised to substantiate his charges. Let them, however, pause in the nomination of the Committee till tomorrow—give him a fair Committee for a fair and deliberate inquiry—he asked no more. The defence set up against him was, that he proved too much. The learned Baron, it appeared, had been in the habit of sitting at unseasonable hours for many years. Was that a reason he should continue a practice inconvenient, and, in many cases, injurious to the ends of justice? One of the constituents of the noble Lord (Sandon) who had lately addressed the House, a merchant of Liverpool, went over to attend a trial in Dublin—returned without attaining the object he had in view, and was compelled again to visit the Irish capital, to the great injury of his business, in consequence of the late sittings of the learned Baron. It had been stated, that it was the habit of Irish Judges, going circuit, to go into Court late in the morning. This he denied: it was their invariable practice to take their seats on the bench at nine o'clock. If such was not the fact, why were not the parallel cases of other learned Judges quoted, and the House asked how it could punish Baron Smith, when other Judges were equally guilty? They were, however, not so. Baron Smith's was the isolated case; he it was whose conduct had justly been brought under the consideration of Parliament. Mr. Serjeant Perrin had obtained a return; and it was his intention last Session to have proceeded on it, if it (the Session) had continued long enough for the purpose he had in view. The 348 learned Gentleman was now unavoidably detained in Ireland, which was the reason he was not the mover of the Resolution which he (Mr. O'Connell) had the honour of introducing that evening. The hon. and gallant member for Armagh had made statements which he was hound to believe—for he would most willingly give credence to all which he asserted had passed under his observation—but, in contradiction to his high authority, he would maintain, that a prisoner was forced on his trial at an unseasonable hour. He was put on his trial against his will; which reminded him of the 150 recruits, who, when they were observed marching handcuffed, the inquirer was told, with much naiveté, by the Serjeant in command, they were only volunteers, on their way to join their regiment. He (Mr. O'Connell) was told triumphantly he had not accused the learned Baron of any other want of incompetence in the discharge of his judicial functions. True, he had not impeached him, but neither had he eulogised him. He had never said he was an erudite Judge. Baron Smith was never a lawyer of eminence. He never had practice when at the bar; and he believed that was some criterion to judge of the merits of the barrister. He did not taunt the Baron with this. No; he went on stronger and more stable grounds; he made out a case for inquiry; he demanded it upon the principle of just dealing; having obtained it, he would not disguise from the House that he intended to go further. It was said Baron Smith pointedly alluded to him; he did not do so; he was remarkably forbearing towards him; but he did that that could never be forgotten. He made a political harangue, when nothing was to be said—he declared he sounded the tocsin when the nation was to be warned. He did more—he sought to revive and re-animate religious dissensions. He hallooed on the Protestant against the Catholic—this was the gravamen of his (Mr. O'Connell's) charge; it might obtain Baron Smith partizans out of Parliament, but within its walls he did not think any one could stand up to justify it. Could the learned Serjeant, the member for Finsbury, with what ought to be the dignity and majesty of the Bench before his mind, contend that such was not prostrating and lowering that ermine which should ever be pure and undefiled? Was the justification to be found in the charges from the 349 judicial seat, when French principles were rife, and Judges were requested to aid the executioner in staying their march, or in the charge of Mr. Justice Bayley in praise of the national debt? If inquiry were not granted, what security could the House have that the peasantry would seek for justice in a Court, which they may assert is presided over by a partisan opposed to them in politics? In conclusion (said Mr. O'Connell) "I demand inquiry on grounds which I defy my opponents to contravene—I ask it for the purification of the ermine— I demand it in vindication of the judicial character, for the sake of the Judge, who ought to be an abstract being of law and reason—I call upon you to grant my prayer in the name of justice and the Irish people."
§ Lord Tullamoresaid, having the honour of being on terms of great intimacy with Baron Smith, he could not hear the charges made against him by the hon. and learned member for Dublin without, before the House went to a division, making some observations. They had been asked if a judge under a Tory Government had made a liberal charge from the bench, what could be the treatment he would receive? Now, he would refer the House at once to a case in point. In the year 1814 a political charge was made from the bench by Mr. Justice Fletcher—a charge in which the conduct of the right hon. Baronet (Sir R. Peel), the then Secretary for Ireland, was strongly animadverted upon. That charge was afterwards published by that learned Judge, and, in the preface to it, he took credit to himself for its strong and solely political character. But the Tory Government of that day did not adopt the course which the Whig Government was now pursuing. They felt that that learned Judge was at liberty to make the charge he did, and they consequently took no notice of it. The noble Lord, referring to the charge of Mr. Baron Smith delivered in the Commission Court of Dublin, said, it was true that there were no political crimes in the calendar to which it could have reference; but at the time it was delivered, in a neighbouring county, in the county of Kildare, a learned gentleman who was as near as could be to being a judge, a gentleman who wore a silk gown, had addressed an assemblage of 40,000 persons in the most inflammatory language, pointing to a ruin which stood be- 350 fore them as the work of their Saxon invaders, and, in fact, arousing their passions by resorting to the most exciting and irritating topics. It was in such a state of things, and under such circumstances, that Baron Smith, in his address to the Grand Jury in Dublin, had felt it his duty to caution them and the public against the political agitation then in progress.
§ The House then divided on the original motion: Ayes 167; Noes 74—Majority 93.
§ Appointment of the Committee postponed.
| List of the AYES. | |
| ENGLAND. | Harvey, D. W. |
| Aglionby, H. A. | Heathcote, J. |
| Althorp, Lord | Hill, M. D. |
| Attwood, T. | Hodges, T. L. |
| Bainbridge, E. T. | Hutt, W. |
| Barnett, C. J. | Jervis, J. |
| Beaumont, T. W. | Kennedy, J. |
| Bewes, T. | Lambton, H. |
| Bish, T. | Langdale, Hon. C. |
| Blake, Sir F. | Lefevre, C. S. |
| Blackburne, J. | Lennox, Lord G. |
| Blunt, C. | Lester, B. L. |
| Bower, J. | Lister, E. |
| Briggs, R. | Littleton, Rt Hon. E. J. |
| Brocklehurst, J. | Locke, W. |
| Brodie, W. B. | Macleod, R. |
| Bretherton, J. | Mangles, J. |
| Burdett, Sir F. | Marshall, J. |
| Campbell, Sir J. | Marsland, T. |
| Cayley, E. S. | Maxfield, W. |
| Chaytor, Sir W. | Milton, Viscount |
| Chichester, J. P. B. | Molesworth, Sir W. |
| Childers, J. W. | Molyneux, Lord |
| Clay, W. | Mosley, Sir O. |
| Collier, J. | Ord, W. H. |
| Crawford, W. | Paget, F. |
| Davenport, J. | Palmer, General |
| Dawson, E. | Palmerston, Viscount |
| Dillwyn, L. W. | Parker, J. |
| Divett, E. | Parrott, J. |
| Donkin, Sir R. | Pease, J. |
| Dundas, Sir R. | Pendarves, E. W. |
| Ellis, W. | Penleaze, J. J. |
| Ewart, W. | Philpotts, J. |
| Fenton, J. | Ponsonby, Hn. W. F. S. |
| Ferguson, Gen. Sir R. | Potter, R. |
| Fielden, J. | Poulter, J. |
| Fort, J. | Pryme, G. |
| Godson, R. | Richards, J. |
| Gordon, R. | Rider, T. |
| Grant, Right Hon. R. | Rolfe, R. M. |
| Grey, Hon. Colonel | Romilly, J. |
| Grey, Sir G. | Romilly, E. |
| Gronow, Captain | Rumbold, C. E. |
| Grote, G. | Russell, Lord J. |
| Guest, J. | Scott, Sir E. D. |
| Gully, J. | Scholefield, J. |
| Hall, B. | Scrope, P. |
| Handley, B. | Seale, Colonel |
| Handley,— | Shawe, R. N. |
| Sheppard, T. | Oswald, R. |
| Simeon, Sir R. G. | Pringle, R. |
| Skipwith, Sir G. | Stewart, R. |
| Smith, R. V. | Wallace, R. |
| Stanley, Right Hon. E. G. S. | IRELAND. |
| Barron, W. | |
| Stanley, Hon. H. T. | Bellew, R. |
| Strutt, E. | Blake, M. |
| Tancred, H. W. | Butler, Hon. Colonel |
| Tayleur, W. | Chapman, M. L. |
| Thicknesse, M. | Finn, W. F. |
| Todd, N. | Fitzgerald, T. |
| Tracy, C. H. | Fitzsimon, C. |
| Troubridge, Sir E. | Fitzsimon, N. |
| Tynte, C. J. K. | French, F. |
| Vivian, J. H. | Grattan, H. |
| Walker, R. | Lynch, A. H. |
| Warburton, H. | Nagle, Sir R. |
| Walter, J. | O'Connell, J. |
| Ward, H. G. | O'Connell, M. |
| Wason, R. | O'Connor, F. |
| Whalley, Sir S. | O'Conor, Don |
| Williams, Colonel | O'Dwyer, A. C. |
| Wood, C. | Roe, J. |
| Wood, Alderman | Ruthven, E. S. |
| SCOTLAND. | Ruthven, E. |
| Adams, A. | Sheil, R. L. |
| Elliott, Hon. Capt. | Sullivan, R. |
| Hay, Col. L. | Talbot, J. H. |
| Jeffrey, F. | Vigors, N. A. |
| Loch, J. | Walker, C. A. |
| Maxwell, J. | Wallace, T. |
| Murray, J. A. | TELLERS. |
| Oliphant, L. | Hume, J. |
| Oswald, J. | O'Connell, D. |
| List of the NOES. | |
| Agnew, Sir A. | Henniker, Lord |
| Arbuthnot, General | Hope, H. T. |
| Baillie, H. | Hotham, Lord |
| Bankes, W. | Hughes, H. |
| Baring, A. | Ingham, M. |
| Baring, H. | Irton, S. |
| Barnard, E. G. | Jones, Captain |
| Bentinck, Lord G. | Johnston, A. |
| Blackstone, W. S. | Johnstone, Sir J. |
| Browne, D. | King, B. |
| Bruce, Lord E. | Lopes, Sir R. |
| Chapman, A. | Lygon, Colonel |
| Christmas, W. | Moreton, A. H. |
| Cripps, W. | Peel, Sir R. |
| Curteis, H. B. | Pigot, R. |
| Dalmeny, Lord | Plumptre, J. P. |
| Dykes, F. L. B. | Reid, Sir J. |
| Evans, G. | Rice, S. |
| Ewing, M. | Rickford, A. |
| Fleetwood, P. H. | Robinson, G. R. |
| Forster, C. S. | Ridley, Sir M. W. |
| Graham, Sir J. | Ryle, J. |
| Grimston, Lord | Sandon, Lord |
| Halcomb, J. | Scarlett, Sir J. |
| Halford, H. | Sharpe, General |
| Hanmer, Sir J. | Sinclair, G. |
| Hardinge, Sir H. | Spankie, Serjeant |
| Hardy, J. | Tullamore, Lord |
| Hay, Sir J. | Tyrrell, Sir J. |
| Hayes, Sir E. | Verner, Lieut.-Col. |
| Villiers, Lord | Yorke, Captain |
| Vyvyan, Sir R. | Young, G. F. |
| Wall, B. | Young, J. |
| Welby, W. E. | TELLERS. |
| Williams, W. | Shaw, F. |
| Willoughby, Sir H. | Inglis, Sir R. |
| Wood, Colonel |