HC Deb 15 February 1860 vol 156 cc1094-102
COLONEL DUNNE

said, he rose to move for a copy of the Commission for an Inquiry into the conduct of Mr. Balfe, a magistrate of the County of Roscommon, accused of having committed a criminal offence; together with the Report of the Commissioners appointed to make the inquiry, and correspondence connected therewith. He believed, upon high legal authority, that all such Commissions as that referred to in his notice were illegal, and that the Commissioners had no right whatever to administer an oath to any witnesses whom they examined. Mr. Balfe took part in the election for Roscommon, and he was charged with subornation of perjury and attempted personation. The charge was not made at the time of the election, but upon a subsequent occasion, at the period for appointing sheriffs for the counties. His name stood first on the list of three gentlemen recommended by the Judges to the Lord Lieutenant; but, nevertheless, he was passed over, and one of the other two was appointed sheriff for Roscommon. Mr. Balfe requested an explanation. The Chief Secretary replied, that it was not the practice for the Lord Lieutenant to state the reasons of his choice: but, on applying to the Lord Chancellor, Mr. Balfe was informed that he had been passed over because a charge had been made against him in connection with the Roscommon election. The Lord Chancellor proposed to issue a Commission to inquire into the charge. Mr. Balfe protested against such an inquiry, but his protest was unavailing; for Mr. Pemoleyns, a gentleman at the bar, of high character and reputation, was appointed to investigate the charge. Mr. Balfe protested against being placed on his trial before such a tribunal; but not wishing to shrink from vindicating his character under any circumstances, he consented to appear before that gentleman. Mr. Demoleyns went into evidence, and made a Report which completely exculpated Mr. Balfe from the guilt of perjury and personation. "Within the last few days he had received a letter from the Lord Lieutenant stating that the report entirely absolved him. So the matter stood. Mr. Balfe had been exculpated, but he had been subjected to an impolitic and unconstitutional inquiry. Now he (Colonel Dunne) wished to point out the difficulty into which the Government must get by issuing these illegal Commissions; especially in cases involving political motives. The legal way of trying a man charged with such an offence, was to take him before a magistrate, or to prefer an indictment in the Court of Queen's Bench against him; and Mr. Balfe complained that neither of those courses had been adopted. The practice of appointing these Commissions was inconvenient, illegal, and fraught with all kinds of mischief. It had never been followed in England; and, if it were to he continued in Ireland, they might as well have another Star Chamber in that country. There was nothing whatever to justify the accusation against Mr. Balfe. No doubt the Lord Lieutenant was not bound to give any reason why the Crown passed him over; but the Lord Chancellor had imprudently made known the reason, and thus rendered it necessary for him to vindicate his character against a charge which had not been proved. He hoped the Government would give an assurance that the practice he had condemned would now cease.

MR. CARDWELL

said, the hon. and gallant Member had brought forward the Motion in the fairest manner, and had stated the case with accuracy. He had admitted that the course pursued was the same as that adopted in former cases of the same kind, though he had not mentioned, as he might have done, that it was prescribed by statute in regard to magistrates appointed under the Constabulary Act: the Commission to inquire into the charge preferred against Mr. Balfe was issued, therefore, in accordance with both law and practice. He (Mr. Cardwell) was happy to say that he would agree to the Motion for the production of all the papers on the subject. It was desirable that the House should be in possession of these documents before it entered into a discussion of the case; but he was anxious now to state what actually happened. The law cast upon the Lord Lieutenant the duty of selecting sheriffs for the several counties. Three names were submitted to him by the Judges, and it was usual to select the first on the list. It was, however, not his duty to take that first name; and in the very same county, not long ago, that usage was departed from. The gentleman first on the list, who was then passed over, wrote to inquire the reason, and he received an answer that the Lord Lieutenant had appointed one gentleman whose name was on the list to the office of High Sheriff, and that he could not recognize on the part of any other gentleman, whatever position he might occupy on the list, a right to raise a question why he was not himself the object of choice. It was quite clear that such a right was not recognized either by law or practice: but then it might be said that by refusing to give a reason they would pain the feelings of the gentleman concerned, and injure his character and position. Mr. Balfe was invited to return an answer to the charge, and he distinctly denied its truth. There being this absolute contradiction of fact, a gentleman of the highest respectability at the bar was appointed to investigate the matter. Both parties appeared before him, and were heard by counsel. The hon. and gallant Member asked why there had not been a criminal trial, but a greater hardship could scarcely have been practised upon Mr. Balfe than by the Government instituting criminal proceedings in such a case. The evidence was conflicting, but Mr. Balfe distinctly denied that he was guilty of any attempt to personate a voter. Mr. De-moleyns reported that he was of opinion that the charge against Mr. Balfe, and contained in a letter written by Mr. O'Donnell, had not been sustained; but he added that though he had, satisfactorily to himself, arrived at that conclusion, he was of opinion that the circumstances proved before him justified Mr. O'Donnell in demanding the inquiry and in subsequently pressing for it. The Lord Lieutenant then communicated to Mr. Balfe the result of the Commission, and stated that in his estimation Mr. Balfe's character was entirely unaffected by the charge. The general question as to issuing these Commissions was a separate matter, but with regard to the present case he trusted the House would suspend its judgment until all the papers were on the table.

MR. WHITESIDE

said, he wished to ask where the right hon. Gentleman found his authority for instituting such an inquiry. He had stated—adroitly, but not candidly—that under the Constabulary Act the Crown had power to investigate by Commission the conduct of its own officers. The very fact, however, that there was an Act providing a particular mode of investigation for the case of stipendiary-magistrates might have suggested to the clear mind of the right hon. Gentleman that there was no power under that statute to try any other class of the Queen's subjects. It was, unquestionably, illegal to issue a Commission to inquire whether Mr. Balfe, who was not a stipendiary magistrate, had stood by while somebody voted who ought not to have done so; and the gentleman who administered an oath to Mr. Balfe had rendered himself liable to be indicted. The inquiry, in short, was illegal alike in its inception and in its conduct. In the case of another similar Commission, a newspaper which had innocently published the proceedings was prosecuted for so doing, and did not get its costs. Such inquiries were illegal, and the administration of oaths by those who conducted them was forbidden by positive law. Again, he would ask how the cost of these proceedings was defrayed. He supposed that it came out of the Consolidated Fund in some shape or other; but, however this might be, it would be better to let the common law of England prevail in Ireland. The principle involved in the appointment of such a Commission was a most improper, and it might prove a most dangerous one.

MR. BERNAL OSBORNE

said, that be was delighted that the Secretary for Ireland was not mixed up in these proceedings, for if he were, he should have lost all confidence in the Government of Ireland. If this case, which appeared to excite so little interest, had occurred in England, every country gentleman in the commission of the peace would have come down and protested against so unheard-of and despotic exercise of power on the part of the Executive. He knew nothing of Mr. Balfe, except that he was a Roman Catholic gentleman of liberal opinions and of large property. At the last election for Roscommon, Mr. Balfe opposed the Castle interest, and since that time he seemed to have been a marked man. What would have happened if the late Attorney General for Ireland (Mr. Whiteside) had acted in the way complained of? Would not hon. Members on the Ministerial side have denounced his conduct in words as strong as the English language could supply? The House was equally bound to watch the system of government, or rather no government, which at present existed in Ireland. Had the Chief Secretary been there, this Commission would never have been issued, for the right hon. Gentleman was far too prudent to give reasons for striking a sheriff's name off the list. The fact was that all this was done by the backstairs influence at Dublin Castle. His right hon. Friend (Mr. Cardwell) had endeavoured to take the House off the scent by referring to what the Government were empowered to do in the case of the paid magistracy; but Mr. Balfe was no paid magistrate, and could not be dealt with in any such way. He had been struck off the list of sheriffs, and, upon demanding an explanation, the Lord Lieutenant very imprudently furnished him with one. "Oh that mine enemy would give a reason!" Mr. Balfe might have said; and the Lord Lieutenant did give a reason, declaring that during the election Mr. Balfe had been a party to the personation of a voter. Then a correspondence ensued between Mr. Balfe and the present Lord Chancellor, in which the latter got the worst of it, both in law and logic. Mr. Balfe demanded that the charges against him should be brought forward in the light of day. He disapproved of the Commission, but said he would come before it. He did appear accordingly, and was entirely acquitted. The inference which he (Mr. Osborne) drew from all this was that the present mode of governing Ireland was unsatisfactory; that backstairs influence was predominant there; that men's characters might be whispered away; and that if they did not happen to be on the list of high sheriffs they would never know the reason why. The people of Ireland were in favour of the Lord-Lieutenancy, and he should not attempt to disturb their decision; but at the same time he thought there might be a great reform in the system. At present it was a grotesque burlesque; but if it was to be a pageant, at least it should be a solemn pageant, and not one brought into play merely for such things as the inauguration of baths and washhouses. If such a case had happened under the Earl of Eglintoun, every Irishman would have started up to denounce it. As it was, wishing to deal impartially with such questions, and looking upon the present Lord Lieutenant as a man well formed to adorn private life, he thanked his hon. and gallant Friend for bringing the subject under notice. The accusation against Mr. Balfe was preferred in quite a Venetian manner, though to say that the letter was dropped into the lion's mouth would be to cast a slur upon that noble animal. This discussion would lead men to question the expediency of continuing the government of Ireland by means of a Lord Lieutenancy, or, at any rate, it would show that the Lord Lieutenant's powers should be scrutinized more severely than at present. He hoped the result would be to give a blow to the backstairs influence which in this case had been directed against a gentleman who bore as high a character as any hon. Member of this House.

MR. LONGFIELD

said that, though differing from that gentleman in politics, he felt bound to defend Mr. Demoleyns, the Commissioner, from the unjust attack which he thought had been made against him during the discussion. No hole-and-corner meeting had been held, but the inquiry was entered upon after full notice, and was fully and fairly attended. Mr. O'Donnell and Mr. Balfe, who were the parties on either side, both assented when asked whether the evidence should be given on oath, and the Commissioner had not acted illegally in taking it. He (Mr. Longfield) deprecated these Commissions, which were unconstitutional, and followed precedents set in bad times. But as those precedents had been followed in the present case, no person could have been selected from the bar who was more likely to do justice than Mr. Demoleyns; and before his decision was given all the parties expressed their satisfaction with the strict impartiality and ability evinced by him throughout the proceedings.

MR. GEORGE

said, there was no more distinguished lawyer at the Irish bar than Mr. Demoleyns; but the House should not suffer its attention to be distracted from the real question at issue here by the character of the individual selected as Commissioner. He was not aware of any general law which in such an inquiry allowed a Commissioner to take evidence on oath, and so doubtful was Mr. Demoleyns as to the extent of his authority, that he had at first declined to examine on oath at all, and only did so when the parties concurred. But was it fair, on such an inquisitorial, if not illegal, inquiry, to call on any man to be sworn? If Mr. Balfe had refused, it would have appeared as though he was afraid to meet the charge. It was only proper that the House should know that Mr. O'Donnell, who appeared as the accuser, was the acting Parliamentary agent of the candidate favoured by the Castle, but opposed by Mr. Balfe, at the Roscommon election. As to the conduct of the Government in striking off Mr. Balfe's name from the list of sheriffs, he admitted that it was in the power of the Executive to displace a gentleman from the list, but they ought, when called upon, to show satisfactory reasons for so doing. If the course pursued in Mr. Balfe's case were followed, no man's character in the land would be safe. He trusted that they would never hear of such Commissions again. Upon a charge of aiding and abetting the personation of a voter, it was the duty of the Government to have instituted a criminal prosecution. As it was, Mr. Demoleyn's acquittal was not so full and fair as it should have been. He ought not to have alluded to complicated evidence, which afforded some reason for the belief that his Report was intended to coyer a rather shabby retreat on the part of the Government, or, at all events, to excuse their inadvertence in having been betrayed into such proceedings. The Government were wrong in condemning Mr. Balfe in the first instance, and then in inquiring into a charge that ought never to have been made. When these documents were produced, he (Mr. George) hoped that as a matter of public policy, and with a view to the proper administration of justice in future, the subject would receive full and searching inquiry.

SIR GEORGE GREY

said, he could not help expressing his regret that as the papers were to be produced, the hon. and learned Gentleman (Mr. George) had entered into this case, and, besides his charges against the Executive, had directly impugned the judicial impartiality of the Commissioner, insinuating that his Report was biassed by political feelings. Being-unacquainted with the facts of the case, he (Sir G. Grey) had no opinion to express respecting them; but there was, he admitted, considerable force in the objection made to inquiries conducted in this way. It should, however, be remembered that the practice was not now adopted for the first time, but had been sanctioned by precedents under former Governments. In England, although Commissions had frequently been appointed to inquire into the conduct of magistrates and of persons employed in public offices under the Crown, he did not remember that upon charges preferred against an individual magistrate merely by letter any such steps had been directed as those which appeared to be sanctioned by precedent in Ireland. The course here would be to communicate to the magistrate a copy of the statement impugning his conduct (which appeared to have been done in this case), and if his answer was unsatisfactory, or was at variance with the facts submitted to the authorities, the Lord Chancellor would employ the means at his disposal in order to satisfy himself whether the charge rested on any good foundation. As a matter of principle he (Sir G. Grey) thought that the sooner the present practice in Ireland was discontinued the better; but meanwhile it was unfair to attack the Lord Lieutenant and the Lord Chancellor for following the precedents set them, when they had selected as Commissioner a gentleman who, by common consent, was above all suspicion of partiality—at any rate until the remarks made, perhaps rather inconsiderately, by the hon. and learned Member. With respect to the administration of an oath, Mr. Demoleyns, he believed, had expressed in court an opinion that he was empowered to do so upon the consent of the parties, and it must not therefore be assumed that the Commissioner entertained any doubt on the subject.

COLONEL DUNNE

said, he wished to disclaim all intention of charging Mr. Demoleyns with partiality. He had only protested against the Commissioner's administration of an oath to the witnesses, which competent authorities believed he was not warranted in doing.

Motion agreed to.

Copy ordered — Of the Commission for an inquiry into the conduct of Mr. Balfe, a Magistrate of the county of Roscommon, accused of having committed a criminal offence; together with the Report of the Commissioners appointed to make the inquiry, and Correspondence connected therewith.