The Earl of Wicklow, pursuant to the notice which he had given yesterday, rose to call the attention of the House for a few minutes to a circumstance of some importance with respect to the administration of justice in Ireland. He had yesterday stated that he would defer this matter till he saw the noble Viscount (Duncannon) in his place; and as the noble Viscount was now present, he should wish to make a short statement of the circumstances to which he had referred. This subject had before been brought under their Lordships' consideration by a noble Friend of his. On that occasion the noble Viscount was reported to have said that the royal prerogative of mercy had been most judiciously and properly exercised, inasmuch as the persons convicted had been all equally guilty, and that an equal punishment ought to be awarded to all of them. If that statement was correct there was no doubt that the individual who felt himself aggrieved, he meant the judicial functionary who had tried these men, the learned, impartial, and respectable Judge, would have been guilty of a case of gross partiality, for nothing could be more true than that if these parties ought to have been equally sentenced, the Judge who had tried them had acted a most improper part. He should, however, make a statement of the case to their Lordships, which he hoped would show that the opinion of the noble Viscount had been expressed on a most erroneous statement of the case itself. This quarrel, like most of those which took place in Ireland, arose between persons of different religions. These parties who were engaged in the dispute sent up cross bills of indictment to the grand jury. The case was referred, by the mutual consent of all parties, to one jury. That jury, therefore, had an opportunity of cross-examining the witnesses, and of examining all the parties as witnesses. The learned Judge, feeling that it was a case in which the credibility of the witnesses was alone concerned, did not give an opinion upon it, but left the whole matter to the jury—they gave an impartial and attentive consideration to the whole case, and by the questions and the inquiries which they had instituted, they formed impartially the determination to which they had arrived. The jury returned a verdict of an aggravated assault under a special statute against the Roman Catholic party, and found the Protestant party guilty of a simple assault. On this occa- 314 sion the amount of injury suffered by the two parties was different; the Roman Catholic party did not appear to have suffered material injury, but the surgeon stated that on the part of the Protestants he found one man to have received fourteen severe wounds inflicted by a triangular instrument, and another party to have received seven wounds, to have had his lip cut through, and one of his teeth knocked out. If, as appeared from this verdict, one of these parties was guilty of an aggravated assault under the statute, and that the other was only guilty of a common assault, he wished to know whether any judge would have acted impartially in inflicting the same punishment upon both? If the case had been the reverse of what it was—if the Roman Catholic party had only been convicted of the common assault, and if the Protestant party had been convicted of the aggravated assault under the statute, and if then the same punishment had been awarded to all, he asked whether they should not have heard from the noble Viscount, or from those who supported him, a declaration that the judge had been guilty of gross impartiality in awarding such a sentence? He was gratified in asserting that under the verdict found by the jury it was impossible for the learned Judge to award to the parties an equal degree of punishment. Shortly after the trial a memorial had been sent to his noble Friend, then the Lord-Lieutenant of Ireland, to which he gave his most serious attention; but in doing of he proceeded according to the established rules in such cases, and he determined not to exercise the Royal prerogative of mercy without referring to the Judge who tried the case; and the result of that reference was, that he determined that the law should take its course. Shortly afterwards the noble Earl was removed from the Government of Ireland, and the present Lord Lieutenant was appointed. A similar petition and memorial were then presented to that noble Earl. Did he pursue the same course—that course which had before invariably been practised in that country? No; on the representations of the parties themselves he sent money to the individual as a recompence for what he had suffered, and he gave an order that the longer sentences should expire at the same time with those of the other party. He asserted that such conduct was contrary to every principle of justice. The noble Earl had not thought it necessary to refer to the learned Judge; the precedent was contrary to the usual course 315 of proceeding, and by remitting the punishment it cast an imputation on the learned Judge who had inflicted it. This was a most unjust mode of proceeding. Without meaning to interfere with this sacred right of the prerogative of the Crown in the exercise of mercy, he must say that it ought only to be exercised under the advice of judicial counsel. It had been stated that the alteration of the punishment was on the unanimous recommendation of the jury who had tried the case. He begged leave for a moment to call attention to the proceedings of the jury, in consequence of this representation. At the close of the assizes at Londonderry eight of the jury attended the criminal court before Mr. Baron Pennefather, and Robert Mills, the foreman of the jury, addressed him, and denied the representation that had been made, adding that the four other jurymen were in the country, but that the eight then present denied the statement, as they were not capable of stultifying themselves in the manner represented. This was one contradiction of the statement which had been given to the noble Viscount. It was true that the jury had themselves requested that the punishment of one of the offenders should be not more than two months, in consequence of the severe wounds he had received; but that had been done at the time of the trial, and had nothing to do with the statement of the noble Viscount. In thus trespassing on their Lordships' time, his wish was to exculpate the learned Judge from the imputations which had been cast upon him, and to call the attention of the Government to the mode in which justice was administered in Ireland. If such a course as that which he had described was not checked, evils would follow far exceeding any that their Lordships could anticipate. Whatever hitherto might have been the imputations on the administration of justice in Ireland, as respected the juries, as yet the breath of calumny had never dared to whisper the slightest imputation on the Judges; the Judges, at least, were as yet untainted in the minds of the people, and were looked upon with universal reverence and respect. But if this new system of government were to he permitted—if the Lord-Lieutenant were to supersede the judgments of the Judges—a state of turbulence and disaffection would arise, of which their Lordships had no conception. It was the more imperative that their Lordships should direct their attention to these matters now, from the peculiar state of the 316 Government of Ireland. It had hitherto been the rule, that if they had a young Lord-Lieutenant, they should have a man of experience for the Irish Secretary; or if they had a young Irish Secretary, that they should have a man of experience for the Lord-Lieutenant; but now both these important officers were young men without experience. He must guard himself, in saying this, from being thought to wish to cast any aspersion on the Lord-Lieutenant. He believed the noble Earl to have acted most injudiciously; and it was necessary to point out the impropriety of his conduct in that respect; but he had a personal respect for that individual, and wished to co-operate with him as far as it was possible in the good government of Ireland. He lamented what he had recently heard as to the feeling of the gentry of Ireland with respect to that individual; he lamented that they, in his late progress through Ireland, should have neglected and slighted him. He thought that they acted injudiciously and unwisely in this respect, and that they ought to remember, however they might differ in politics from that individual, that he was the representative of the Sovereign, and as such, that they should treat him with due respect. He could not refrain from making these last observations as to the conduct of the gentry towards the Lord-Lieutenant, because he thought it to be in direct opposition to the course which they ought to have pursued. He trusted that he had succeeded in clearing the learned Judge from the imputation which the answer of the noble Viscount had cast upon him.
§ Viscount Duncannondesired at once to clear himself from the mistaken supposition that he had ever cast any imputation on the learned Judge. He had not stated what was supposed by the noble Earl. He had stated that as the learned Judge had used his discretion, he had no doubt that the Lord-Lieutenant had done the same; and he might add, that from all the facts which had come under his observation, he believed the Lord-Lieutenant to be right. The course taken by him was not quite unprecedented, for the Lords-Lieutenant of Ireland had frequently adopted such a course, without making any previous application to the Judges. In December last an application was made on this case to the then Lord-Lieutenant, who submitted the matter to the Judge before whom the case was tried. The learned Judge stated, that he could make no alteration in the sentences. On the arrival 317 of the present Lord-Lieutenant a memorial was presented to him, and he then requested that unless there were new circumstances in the case, that such an application might not be made to him. Although the late Lord-Lieutenant had come to the determination not to alter the sentences, yet new circumstances having been stated, the present Lord-Lieutenant had been induced to relieve the prisoners from further suffering the sentence of the Court. With respect to the statement as to the recommendation of the jury, he believed it would be found to be perfectly true that a memorial, signed by all the jury, had been forwarded to the Lord-Lieutenant. There had been also a memorial, signed by the Mayor of Derry, and by thirty-one respectable resident merchants, in favour of the prisoners. That memorial was placed with the other papers in the hands of the Lord-Lieutenant, and upon them he had given directions for the release of the prisoners. He thought that he need not go into any further statement on this subject. He submitted that if a memorial was signed by the jury, and if that recommendation was fortified by another, signed by the Mayor of the town, and by a number of respectable inhabitants, the Lord-Lieutenant was perfectly justified in exercising his discretion, and relieving these persons from further imprisonment. It should be recollected that three months of their term of imprisonment had already expired. In the memorial of the jury it was stated, that as the term for the imprisonment of the Protestants had elapsed, they recommended the Lord-Lieutenant to relieve the other prisoners from the remaining portion of their larger term of imprisonment. He was not aware of there being any other circumstances in the case; but if any noble Lord desired further information he would endeavour to supply it.
§ Lord Lyndhurstsaid, that in this country after a learned Judge, upon reference to him, had stated that he could not alter a sentence, the Secretary of State in no instance whatever thought it right, without the best possible information, to do so; and in order to obtain the best possible information he applied to the Judge, who stated the circumstances of the case, and who furnished him with a copy of the evidence, and of the reasons why he had pronounced the judgment. That appeared to be the right and proper course. As the Judge heard the evidence he had the best opportunity, from seeing and hearing the witnesses, to form a correct opinion of what 318 should be his decision, and that decision ought not to be reversed unless the Government took the best possible means to obtain correct information on the subject. It appeared to him, according to the statement made by the noble Viscount, that the course pursued in Ireland was very incorrect; for it appeared that the Secretary of State or the Lord-Lieutenant had, without communicating with the Judge, been in the habit, in repeated instances, of altering sentences without first fully making themselves acquainted with the circumstances under which such sentences were given. Without knowing anything of the merits of this particular case he had thought it right to state what was the practice in England—that practice appeared to him to be correct, and if any other were adopted in Ireland, he thought that the sooner it was altered and made conformable to the English practice the better.
Lord Farnhamsaid, that it was a mistake to suppose that the practice was different in Ireland and England. He had never heard of any one who in the administration of justice had given more univeral satisfaction than a noble Marquess who for some years was Lord-Lieutenant there (the Marquess Wellesley); and it had always been his practice to examine the documents submitted to him, and to consult the Judge who had tried the case. He had always much admired that part of the noble Marquess ' conduct. During the whole time of the Marquess Wellesley's government, he did not know one case in which the most fastidious person could find fault with the administration of justice. He should like to see a copy of the memorial addressed to the Lord-Lieutenant in the present instance, for there appeared to be a great discrepancy in matter of fact as to that memorial. He had three cases of a similar nature to bring under the attention of the House. He had given the papers in them to the noble Viscount, and should mention them again when the noble Viscount had obtained information on them.
Lord Plunkettsaid, he was totally ignorant of the circumstanees that had taken place at the trial, or of what had occurred afterwards, but he would bear his humble testimony to the high character of the learned Judge, whose impartiality was said to be impugned by the conduct which he pursued on the occasion to which this discussion bore reference. He had known that learned Judge for a great number of years, and though he might not concur 319 with that learned person in his political views, still it was but just and proper for him to declare that that learned person, in his judgments, either with reference to that now particularly under consideration, or to any other, never, he was convinced, suffered his political sentiments to interfere with his judicial duties. He was happy to concur in this testimony to the honesty and impartiality of the learned Judge with the noble Earl who first introduced the subject. He believed that the noble Baron was quite correct in stating that the ordinary course in this country and in Ireland, with respect to the remission of a judicial sentence, was precisely the same. He would, however, call their Lordships' attention to the particular situation in which his noble Friend (the present Lord Lieutenant) was placed on this occasion, and then they could judge how far the general course of proceeding was applicable in this instance. If he were rightly informed, after the trial had occurred in this case, and after sentence had been pronounced according to the different degrees of guilt of the different parties, a memorial was presented, and on that memorial a report was made. That report was laid before the Earl of Haddington, and on that he acted. Now this was not a question of law—it was a question of discretion. It involved a measure of punishment commensurate with the degree of guilt. All the parties were guilty, but the exact degree of guilt depended on circumstances. With the report of the learned Judge before him, the Earl of Haddington did not deem it necessary to alter the sentence. Now this same report, which was in the Secondaries'-office, must have been seen by the Earl of Mulgrave; and such having been the case, he could not say that it was absolutely necessary that a fresh reference, when another memorial was presented, should be made to the Judge who tried the case. If such a reference had been made, the report would have been the same. Now the Lord Lieutenant, on looking over that report, might have thought that the scale of guilt was not so exactly and so naturally laid down as not to allow of a certain degree of change in the amount of punishment. If the Lord Lieutenant, acting on this principle, (and it should be observed that there was no question of law in the case), conceived that it was not necessary to inflict the whole of the punishment originally awarded, he did conceive that that noble person could not be fairly accused of having 320 misapplied the prerogative of the Crown, or that it could be justly said that he, in remitting a certain portion of punishment, cast the slightest reflection on the learned Judge who had tried the case.
Lord Fitzgerald and Veseysaid, that it was quite unusual in cases of this kind for the Executive Power to come to a decision directly opposite to that of the Judge before whom a case had been tried. The noble Viscount had said, that instances of a similar kind were not unprecedented; but connected as he was with Ireland, he would distinctly state that he never before had heard of any such ease of interference. He was happy to hear the panegyric justly pronounced by the noble and learned Lord on the learned Judge who had been that night referred to. Before the noble and learned Lord rose, he was himself about to invoke the noble and learned Lord's testimony in favour of that most excellent individual, of whom he Would say that a man more impartial, or less influenced by political bias in the discharge of his duties never existed. The noble Lord, as a proof of the impartial feeling of the learned Judge, instanced a case of some consequence in which he had sentenced two Protestants who had teen guilty of riotous conduct, not to three months, not to six months, but to twelve months imprisonment. Yet this was the Judge upon whom the Government, by their interference, though they might not have intended it, had fixed the charge of partiality.
§ Lord Hathertonsaid, that the memorials and other papers had been forwarded to the Lord Lieutenant, and he could state that he was not aware in practice of any case in which the Lord Lieutenant had expressed any opinion upon any case without first seeing the memorials. His noble Friend opposite, the late Lord Lieutenant of Ireland, could confirm him in this statement as to the practice in such cases.
Lord Broughamobserved, that this was a very important matter, and ought to be approached with the highest degree of delicacy. He quite agreed with the noble and learned Lord opposite (Lord Lyndhurst) that the prerogative ought never to be exercised by the Executive Government without an appeal being first made to the learned Judge who tried the party or parties on whose behalf an appeal was made to the mercy of the Crown. The learned Judge was the person to give an opinion upon the case in the first instance; he was the individual from whom the 321 soundest advice upon the subject could be procured. But his (Lord Brougham's) opinion was equally clear, that the Crown was in no way bound by the opinion of the learned Judge. That would be a monstrous proposition, as tenable as that the Crown ought to be bound by the opinion of the jury. If that principle was to prevail, he (Lord Brougham) was liable to impeachment over and over again for having advised the Crown to make an extension of mercy to parties in whose favour the Judge had said the cases were not proper for mercy. He did not know any thing of the facts of the case, but it appeared to him from what had been stated by his noble Friend the Lord Privy Seal, that there had been an application to the learned Judge, who returned an answer by letter to the Lord-lieutenant. If that answer did not satisfy the Lord-lieutenant, he had the right to act accordingly.
Lord Fitzgerald and Veseysaid, he wished to correct an impression which prevailed, that the Jury had joined in a memorial in favour of the parties in question. Such was not the case, and he begged to state that the Jury had gone into the public court-house of their county before the Judge of Assize, and there publicly denied that they had given in any recommendation to mercy, and that any memorial or paper bearing their names which had been forwarded to the Government had not been signed by them.
Lord Plunkettsaid, that nothing was in practice more common than the exercise of the undoubted prerogative of the Crown in contradiction to the opinion of the Judges before whom the parties had been tried and convicted. He remembered an instance of this which occurred to himself when he had the honour to preside in a court of common law. During that period he had sat with his learned and respected Friend, since deceased, Mr. Justice Van-deleur, and before them an individual was tried and convicted of an aggravated case of manslaughter. In the exercise of their discretion they had sentenced him to a long imprisonment, and on an application being made to them for a revision of the sentence, and on mature consideration of the case, Mr. Justice Vandeleur and himself concurred in the opinion against any alteration or remission. This occurred at the period his noble Friend the Marquess of Anglesey presided over the Government of Ireland, and, notwithstanding the 322 opinions of himself and his late hon. an learned colleague, the noble Marquess in his discretion remitted the sentence. He could not without impeaching his own opinion say the prerogative was wisely exercised; but of this he was sure, that it was constitutionally exercised.
The Earl of Wicklowundertook to assert that no such memorial as that which had been adverted to, had ever been forwarded by the jury. If there were any such document in existence, the noble Viscount could easily contradict his statement, by laying it on the Table of the House. If the present Lord-Lieutenant had seen the documents, and had made use of the papers between his predecessor and the learned judge, he (the Earl of Wicklow) was quite persuaded that he never could have said that the remission of the sentence was founded upon the fact, that both parties were equally liable to punishment. This was not the fact. He asserted, therefore, that this exercise of the Royal prerogative had taken place without any reference to the Judges' opinion, and without any memorial from the jury to the Lord-Lieutenant.