HL Deb 21 August 1843 vol 71 cc960-73
Lord Wharncliffe

said, that he had seen Lord Eliot, who returned to town on Sunday, as to the correspondence between Mr. Barron and the Irish Government, and he found that the noble Lord was utterly ignorant of the existence of any such papers; the noble Lord had sought through his office in town, and there was no vestige of such papers. He was afraid, therefore, that their Lordships must wait until the Government could hear from Ireland, and obtain the documents if they were in existence. With respect to the merits of the case, he must say, that having now read the papers with consideration, he was quite ready to say, that the Lord Chancellor of Ireland had been justified in the course he had taken; and that he had the concurrence of the Irish Government and her Majesty's Government here in that course.

The Lord Chancellor

said, that several noble Lords had, on a former occasion, expressed themselves very strongly on this subject; but that he had felt, holding the office he had the honour to hold, that he should not be justified in giving an opinion on this matter without knowing the case, and though he had something like provocation, he had thought it his duty to refrain from giving an opinion on the occasion to which he alluded. The Lord Chancellor of Ireland, whom he had since seen, had informed him that his decision was formed from the papers which were already on the Table of the House, and he must say, that with all respect for the noble Earl, for whom he had great respect, he thought upon the whole, that the Lord Chancellor of Ireland was bound to remove the noble Earl from the commission. The Lord Chancellor of Ireland in doing so had acted with great reluctance, and it was due to the Lord Chancellor of Ireland to state, that the effect which the perusal of the papers had had upon his mind was, that he thought the Lord Chancellor of Ireland was bound to do as he had done, and he, moreover, thought that the Lord Chancellor's reasons, were justly stated in his letter.

The Marquess of Clanricarde

said, that what was called for from the noble Lord opposite (Lord Wharncliffe) was a simple statement of facts. It was extremely unfortunate that it was only now at the end of the Session that they had a declaration from the Government that they entirely approved of the conduct of the Lord Chancellor of Ireland. Still he did not wholly blame the Government, because it was certainly unfortunate that his noble Friend had not earlier brought the matter under their Lordships' notice; but at the same time it was impossible not to perceive, that though no new fact had been communicated to the Government, some communication of considerable weight had been made to the noble Lord. Looking to the conduct of Sir E. Sugden in his court, he thought that his (Sir E. Sugden's) loss would be a severe misfortune to Ireland, and he thought that Sir E. Sugden, not only in presiding in his court, but in ordering and arranging the whole machinery of his court, acted with great judgment and propriety; but in that department of his office to which the noble Earl had been amenable, he was free to say that the conduct of Sir E. Sugden had not given general satisfaction. Generally it was not right to make such a statement as this without a direct case to support it; but the fact was, their Lordships had a direct case before them, only the state of the Session prevented it being fully discussed. He must say, that he thought the conduct which had been pursued on this occasion would give the greatest dissatisfaction to the magistrates of Ireland. With respect to the alleged reason for the dismissal, it was absurd to say that a hasty expression ought to be visited with the same punishment and marked with the same reprobation which were justly fixed upon what was regarded by the Government as the very dangerous conduct of other persons. The conduct of the stipendiary magistrates who presided on the occasion, and who appears not to have been reproved in any way, appeared to him to be a point deserving of consideration. The magistrates of Ireland had often a very difficult duty to perform, and though their conduct was watched with a rigour which neither he, nor he believed any of them, complained of, yet he thought it due to them that a slight slip, not during the performance of the magisterial functions at all, should be overlooked, and ought not to give rise to the greatest punishment which the Government could award to those magistrates who had failed in upright conduct.

The Earl of Lucan

had come down unprepared for this discussion, for he never had the least expectation that there would be ally further allusion made to the subject during this Session. Their Lordships, he thought, would agree with him, that he had sufficient cause of complaint against the noble Lord, but at any rate he greatly regretted having postponed to a late period of the Session bringing his case under their Lordships' notice; but the fact was that he gave notice of his intention to do so a fortnight ago. How did the Government meet that notice? Four days after, the noble Lord quietly got up, and without any apology or circumlocution, said—"I know nothing of this business—I have not informed myself on it—I am not instructed by Sir E. Sugden on the subject. I know nothing about it." Their Lordships would recollect the feeling, not of one noble Lord, but he thought of nearly all, when he made that statement, and he believed that other noble Lords besides those who spoke would have yielded to the desire to make strong observations on his case, if they had not been met by the argumentum ad misericordiam on the part of the Government. The noble Lord had stated that the question should be considered, and that justice should be done. That happened on a Thursday. On Tuesday a noble Lord asked when they might expect to see the papers? What the noble Lord said was, that expedition had been used, that the delay arose from the necessity of hearing from Ireland; that the papers had only reached town that morning; that they required the consideration of Government; but that they would be ready by Thursday next. But what came to light next? That the papers had never been written for, and that the delay which had taken place was merely a trick and device. He was not there to make remarks on the character and conduct of the noble Lord he had nothing further to say on that subject. That the noble Lord had succeeded was clear, for their Lordships must be well aware, that it would be useless and ridiculous to attempt to bring forward a discussion of the subject at this period of the present session. For himself, he found himself placed in a very difficult situation; he had made a statement in their Lordships' House; he produced, in order to facilitate the discussion, every paper of which he had cognizance; and he thought he might say, that he very much carried the feelings of their Lordships with him. He was now told that since the production of the papers on the Table, the case had assumed a different complexion. But how was this? Had he suppressed anything? Had he misrepresented anything? Did not the papers on the Table, so far were they from contradicting, bear out his statement to the letter? He challenged the noble Lord to say in what he had deviated from the truth—what he had suppressed in that statement, and how the case differed now from the statement he made that Thursday to their Lordships' House. He only said to the noble Lord that he defied him, and that he was prepared to defend his character, and to uphold his statements. The noble Lord might now triumph in the success of the trick he had played off.

Lord Wharncliffe

utterly denied there was any trick, and as to imputations, he never had an intention to say a word against the character of the noble Lord; but it was quite a different question whether what the Lord Chancellor of Ireland had done in his judicial capacity could not be justified. There was no use in imputing, motives. The Government wished only to do justice. He should like to know on what grounds the noble Lord imputed to him unworthy motives. It was true, when first the subject was mentioned, he was not informed upon it; and if any blame attached to the Lord Chancellor of Ireland for not apprising him, the Lord Chancellor of Ireland undoubtedly was to bear that blame; but the fact was, he came to the House not knowing anything about the matter. On the Tuesday morning following, the papers had only just been given him for presentation here. On coming down on Tuesday, he informed the noble Lord and some of his Friends also, that he had got them—nay, more, he said that they were perfectly at liberty to see the papers; and those noble lords actually came to his office and saw the papers. He also said they should be on the Table in print on Thursday. They were so. In this he thought there was no ground for alleging a trick, and he must be allowed to say, he repelled the charge. With respect to the state of the session, he regretted fully as much as the noble Lord could do, that there was not time during the present session to enter fully into the subject; but if there was not dine, it was the noble Lord's own fault. Why, if the noble Lord had been suffering for months under this degradation, did he put off taking any step until ten days before the end of the session, when he came down and called for a number of papers, to produce which must necessarily cause considerable delay? He would say, that the noble Lord had not any ground to impute to the Government that they had caused the delay. As to the character of the noble Lord, he did not impute anything to the character of the noble Lord, but that was a very different thing from allowing a colleague to be attacked for something which had been done in the execution of his judicial functions in his department.

Lord Brougham

thought this one of the most painful discussions that had ever arisen in Parliament; and if it was to be said, that their Lordships could not acquit one party without condemning the other, he should require more time to make up his mind upon the matter. His noble Friend, in February last, applied to him, and he advised him, as he had afforded a ground for disapprobation of his conduct (which his noble Friend had confessed frankly in his letter to the Lord Chancellor), to take no step, and in all probability he would be restored to the bench. He had a communication on the subject with his noble and learned Friend on the Woolsack, who wished to communicate with the Great Seal of Ireland, and thus some little delay took place, which was not attributable to his noble Friend (the Earl of Lucan) or to his noble and learned Friend. The Lord Chancellor of Ireland said he was coming over at no distant period, and would explain the matter; and then it was proposed to restore the noble Earl, and to restore Mr. O'Malley too, which would have been a stigma upon his noble Friend. The delay, therefore, had not been the fault of his noble Friend. With respect to the case itself, he denied that the act was a judicial act. The Lord Chancellor had two functions, one judicial, in a court of law, the other superintending the magistracy; and if he removed or appointed a magistrate, it was not a judicial act, though it might be said to be quasi judicial. Now, if the case before their Lordships was all the case of the Lord Chancellor of Ireland, he should be forced to vote against him for he differed from his noble and learned Friend on the Woolsack, and from the noble Lord the President of the Council. Both said the case of the Lord Chancellor of Ireland had closed. Not only was it closed, but his noble and learned Friend on the Woolsack had pronounced judgment. [Lord Wharncliffe: "I never said so.] He had understood that his noble and learned Friend had pronounced his opinion, that the Lord Chancellor of Ireland was bound to act as he did, and had given judgment against the noble earl, not so as to leave any imputation upon his character as a gentleman, or an officer, or even, he might say, as a magistrate; but he gave judgment against him on the question, whether he had done wrong as a magistrate. He was doing his duty as a judge towards the noble Earl and towards the Lord Chancellor of Ire- land, and wished to do justice to both, and injustice to neither. He imputed nothing derogatory or disgraceful to the character of the Irish Chancellor, either as a judge, or a gentleman, or a magistrate; but he imputed to him an error of judgment, of which any one might be guilty. He thought it was unnecessary to have removed Lord Lucan from the magistracy, (supposing this to be the whole case); and if he had been Chancellor, he would not have removed the noble Earl; but he was prepared to say, that he should have corresponded with Mr. Barron. At the same time, he was bound to say, in justice to Mr. Barron, that since he had read the papers, he found that Mr. Barron had not been so deficient in his duty as chairman, as he had at first appeared to him; Mr. Barron had exerted himself, but he wanted firmness and vigour to maintain the dignity of the chair, and put to silence a person who was a wrongdoer from the beginning to the end. The word "miscreant" had not been used by Lord Lucan till he had been a second tone insulted, and he would ask any man of judgment and common sense, who had two or three minutes to reflect, whether that was a ground for imposing a stigma upon the noble Earl—for the removing a man from the magistracy for misconduct in a court was a stigma, and ought not to have been made. It was nothing more than a great error in judgment; but the Government would never get gentlemen to act as magistrates unless they were protected. He was certainly for protecting an absent Chancellor, but he was also for protecting a magistrate. He would observe, that when he was Lord Chancellor, he had always written to magistrates in his own name, and with his own hand; it appeared offensive in a Lord Chancellor to write to even a Lord-lieutenant through his secretary, "My Lord, I have laid your letter before the Lord Chancellor," as if he were too great a person to be approached by a Lord-lieutenant, who in his county was higher than the Lord Chancellor. There were two courses to be pursued, one to pronounce a judgment at once on the papers, and the other to postpone the judgment. He preferred postponing it, otherwise their Lordships would come to a hasty vote, without notice, and it would be more satisfactory to his noble Friend, (the Earl of Lucan), to have their Lordships' calm and deliberate opinion, than to snatch a vote.

The Lord Choncellor

said, the communication which had passed between him and Sir Edward Sugden had been his own personal act, and not as one of her Majesty's Ministers, who were not responsible for it. He had not intended to enter into the merits of the case; but he had read the papers, and he had thought it his duty to express his opinions.

Lord Campbell

believed, that persons of all parties in Ireland admitted that Sir E. Sugden administered his functions as judge in such a way as to give general satisfaction; but he must confess that he thought that learned person had fallen into an error in judgment in dismissing the noble Earl from the bench of magistrates. No one, however, could doubt but that the Chancellor of Ireland, in the step which he felt called upon to take, was actuated by the best and purest motives.

The Earl of Charleville

said, that the proceeding of the noble Baron, the President of the Council, had not been characterized by the courtesy which was usual from one Peer to another, or towards noble Lords sitting on opposite benches. He had been allowed by the noble Lord to see all the papers on Wednesday; the noble Lord now said, that these papers formed the ground upon which the Lord Chancellor of Ireland acted, and though he was in possession of those papers on Friday, when he commented upon the conduct of the Lord Chancellor, the Lord President still remained silent. The noble Earl (Earl Lucan) had not appeared in court as plaintiff in the cause, but as a spectator. Mr. O'Malley, in order the more to insult Lord Lucan, had procured the attendance of officers from the depot. After very insulting language addressed to him, Lord Lucan desired that "that man" might be put in the dock. Up to that time, the noble Earl had shown the greatest control over himself. He had at length used the term "miscreant." Would the noble Lord explain the mean- ing of that term? Dr. Johnson defined it "one who had a false faith, and worshipped false gods." [Lord Brougham: It is used as a word of abuse.] He admitted that in the irritation of the moment the noble Earl had used a term of reproach, but it was not a vulgar or violent term; it was a well-chosen word, though used without reflection. His noble Friend had the honour to hold a commission of the peace for Middlesex, in which county he possessed considerable property. Had he (Lord Charleville) held a commission of the peace for Berkshire, where he had formerly resided, and had he been subjected to treatment similar to that which his noble Friend had experienced, he would not have hesitated at once to request that a supersedeas might issue, depriving him of the commission. He felt that the condition of Ireland at the present time was dangerous and alarming, and though he would not shrink from any responsibility which circumstances might impose upon him, he must say, that nothing but the most extreme necessity would induce him to enter a court of petty session in that country, and that he would not take his seat upon the bench while there was a chance that he might be subjected to such an insult as that which had been offered to his noble Friend. Though he fully concurred in the commendation which had been bestowed on the Lord Chancellor of Ireland by noble Lords on both sides of the House, he must say, that he felt no confidence in him (the Lord Chancellor of Ireland), as the head of the magistracy; and when he (Lord Charleville) found that if he was publicly insulted, and in the irritation of the moment used an unguarded expression, he was to be sacrificed, nothing should induce him to serve under such a head, unless his services were rendered requisite by the condition of public affairs; and, under such circumstances, he trusted that, as he always had done during the twenty years he had had the honour of holding the commission of the peace, he should faithfully discharge that duty which he owed to his sovereign and to his country.

The Duke of Wellington

said, that since the last occasion on which this matter was discussed in their Lordships' House, he had perused the paper which had been printed; and he would now venture, in a very few words, to express his opinion on the subject. He begged— adverting to the observations of his nobly Friend who had just sat down—to call their Lordships' attention to these important facts,—that the Earl of Lucan appeared in court as an individual, as a spectator, and not as a magistrate; that being in that court as a spectator, he was most grossly ineulted; that he was treated in such a manner as clearly to deserve and to require the protection of the court that he bore all these insults in the manner which might have been expected from a man of his rank, an officer of his high character in the army; but that, unfortunately, he was betrayed by the feelings which must have been excited by the insults to which he had been subjected, and after having called upon the court for protection into the use of an expression with respect to the defendant which he certainly ought not to have used—which the noble Earl himself confessed he ought not to have used, and which expression he had no doubt was, and ought to have been so considered by the bench, a contempt of the court. He believed these were the facts of the case. His noble Friend, appearing in court as a private individual being taunted, provoked, insulted in every possible manner,—his character for honour and for honesty being attacked—his honour as a justice of the peace being impugned,—being accused of intending to become a judge in his own cause,—his noble Friend, under these circumstances called for the protection of the court against such insults; and he was eventually betrayed into the use of expression which he himself acknowledged he ought not to have uttered, but which certain) must be, and ought to have been, considered as a contempt of court. He wool also venture to justify the conduct of the noble Earl with respect to another point which had been alluded to during this discussion. It was said, that the noble Earl was induced to take the course which he had pursued in consequence of the presence in court of certain officers of regiment stationed in the neighbourhood. He entirely acquitted the Earl of Lucan of any such feeling. The noble Earl had been provoked and irritated; there was no evidence of malice prepense; he was provoked to make use of a certain expression without any regard to the persons who were present. Lord Lucan was not required to enter into any bond, but the court threatened to bind over the defend- ant in the suit, and that gentleman was eventually required to promise that he would adopt no further proceedings. But it was necessary to investigate the case still further, for several noble Lords opposite had impugned the conduct which had been pursued by the Lord Chancellor of Ireland in this case. The subject was brought under the consideration of the Lord Chancellor of Ireland by Lord Lucan himself. The Lord Chancellor was then bound to consider the question; and Lord Lucan repeatedly urged the Lord Chancellor to take the subject into consideration, and to decide upon it previous to his departure from Ireland. The Lord Chancellor was, therefore, compelled to give an opinion upon the case. Here were two parties,—one person who grossly insulted Lord Lucan, the other Lord Lucan himself, who, being thus insulted, used an expression which was, in fact, a contempt of court; both parties standing before the Court of Petty Session, and both liable to punishment for contempt, the one being the plaintiff, present as a spectator, the other the defendant. He did not mean to compare the conduct of these parties, or the nature of the contempt of which they had both been guilty. The Lord Chancellor of Ireland was called upon to consider this case, and he said:— I conceive that magistrates who can be guilty of such a contempt of court in the presence of a bench of magistrates, ought not to continue in the commission of the peace, and I think my duty is to remove them both. He did not consider that it was quite fair to pronounce judgment upon a case of this description without a full and complete examination; but he could not agree in censuring the conduct of the Lord Chancellor of Ireland, or in thinking that he had committed any error of judgment in the course he had pursued. The Lord Chancellor was called upon by one of the parties who was implicated in the case to institute an inquiry; and, having ascertained the facts, and finding that both parties had been guilty of what must be considered a contempt of court, he said, "I must remove you both from the commission of the peace." That was the course which the Lord Chancellor of Ireland had taken, and he did not consider that any blame was to be imputed to him. Some noble Lords, in discussing this question to-night and on a former occasion, had considered Lord Lucan throughout the whole proceedings as a Peer of Parliament. His noble Friend must be regarded in this case merely as a private individual; he appeared in that court in the capacity of a private individual. A Peer of Parliament had no privilege in a court of justice, except that, as a matter of courtesy, he might be called upon to take his seat upon the bench. The Members of that House possessed, in common with Members of the other House, the privilege of freedom from arrest; but they could claim no other privilege, and they were entitled to no privilege in courts of justice. In this case, therefore, the noble Earl appeared before the Lord Chancellor of Ireland simply in the capacity of a magistrate; and the Lord Chancellor, in considering the case, appeared to him (the Duke of Wellington) to have discharged his duty most impartially—paying no regard to persons. In the first discussion which took place on this question in their Lordships' House, the opinion of the noble Lord at the head of the Government of Ireland was alluded to, and it was intimated, that the views entertained by that noble Lord on this subject, were at variance with those of Lord Chancellor Sugden. The noble Lord (the Lord-Lieutenant of Ireland), had authorised hint (the Duke of Wellington) to say, that throughout all the inquiries instituted into this case he had fully concurred in the opinions of the Lord Chancellor (Sir E. Sugden), that he considered those two magistrates must be regarded as standing in a similar position, and that the same course must be adopted with respect to them both. It could not, he thought, be considered that there had been any intention on the part of the Lord Chancellor or of the Government of Ireland to act harshly with respect to any noble Lord. The Government had adopted the course which they conceived to be consistent with their duty, and nothing had been further from their intention than to pain the feelings of his noble Friend. The noble Lord (the Earl of Charleville) who had last addressed their Lordships had stated, that he could not think of attending to perform his duties as a magistrate at any petty Session in Ireland; and he had stated, that he considered his noble Friend the Earl of Lucan had acted most properly in tendering the resignation of his commission as a justice of the peace for Middlesex. [The Earl of Charleville, had made no such statement.] Then he must have misunderstood the noble Earl. At all events, the noble Earl had stated, that he would not perform his duties as a magistrate in any county in which he held the commission of the peace. He hoped the noble Earl would reflect before he determined to withdraw his services as a magistrate for such reasons as he had assigned. His noble Friend (Lord Lucan) had unfortunately, in a moment of irritation, made use of an indiscreet expression; but he did not think there was any chance that the noble Earl (the Earl of Charleville) would so far forget himself. He hoped most sincerely, that neither the noble Earl, nor any other individual, would in consequence of the performance of this act of duty on the part of the Lord Chancellor of Ireland, deprive the country of the benefit of their services as magistrates.

Lord Wharncliffe

said, as some strong expressions had been used in the course of the debate, he thought it right to state that the Government were fully prepared to justify the conduct of the Lord Chancellor of Ireland, with respect to the case of the noble Earl.

Lord Brougham

thought it would be well to forbear pressing this question at the present advanced period of the Session; but if he might venture to tender advice to the Lord Chancellor of Ireland, he would recommend him to evince his judgment, his discretion, and, he would add, his magnanimity, by restoring Lord Lucan to the commission of the peace. He had not heard one person allude to this subject, either in or out of Parliament, who—without blaming the conduct of the Lord Chancellor of Ireland—did not sympathize with Lord Lucan, and who did not lament, on account of the Lord Chancellor rather than on that of Lord Lucan, the course which had been pursued.

Lord Campbell

said, the noble Duke opposite had justly characterised the conduct of Lord Lucan as a contempt of Court; but he (Lord Campbell) protested against the doctrine that every contempt of court would justify the removal of a magistrate from the commission of the peace.

The Earl of Glengall

complained that this matter had been brought forward without notice. He knew as many as fourteen Irish and English Peers who would have been present had notice been given, and they were all ready to affirm resolutions in favour of his noble Friend Lord Lucan. There was only one little point in which the noble Duke had found any fault with the conduct of his noble Friend; and he believed, after what had passed, justice must very shortly he done to him. He knew of a case which had occurred about two years ago in Ireland, in which one magistrate had knocked another down upon the bench. Yet he had since been reinstated; and, after the strong provocation, which, it was allowed on all hands, had been given to his noble Friend, it was impossible not speedily to do justice to his character. The noble and learned Lord on the Woolsack and the President of the Council were little aware of the custom which prevailed nowadays in Ireland, where a class of low, ill-conditioned people, sometimes low attorneys, were engaged professionally for the very purpose of insulting magistrates, particularly at petty sessions, in order, if possible, to get them to commit themselves, that their case might be represented to the Government. If the magistrates were not duly supported after being insulted in such a manner, it would be impossible for them to discharge their duties at petty sessions. For himself he must say, he had been so disgusted with such proceedings, that the impression on his mind had been that he ought not to interfere as a magistrate in Ireland, except where violent outrages should take place in a disturbed part of the country.

The Lord Chancellor

observed, that the frequency of such unseemly proceedings in courts of justice in Ireland was stated by the Lord Chancellor of Ireland as one of the grounds on which he justified the course he had pursued on this occasion. For the purpose of preventing such scenes of indecorum and violence, it was the duty of the head of the magistracy to interfere especially when the case was brought under his attention by the noble Low himself.

The matter then dropped.