THE MARQUESS OF CLANRICARDE, who had given notice to call Attention to the State of the Court of Queen's Bench in Ireland, and to ask a Question, said, he would preface the Question of which he had given notice by some observations as to the measures adopted, or rather not adopted, in pursuance of the Report of the English and Irish Law Commission. The Commissioners made their first Report in 1863, and a very favourable Report it was; but, although several Bills had been since 1629 presented to Parliament for the purpose of carrying into effect their recommendations, nothing effectual had been done. The Commissioners seemed to think the legal machinery of the Irish Courts too extensive, but they abstained from recommending any reduction in the number of Judges, believing that a large increase of business would probably take place; whereas the very reverse had happened. He had been accused of unpatriotically seeking to diminish the amount of Imperial revenue expended in Dublin; but per se he did not care one straw how many Judges there were, or how much money they each received from the State. His object was to benefit the suitor and to cheapen and improve the administration of justice. But there were some circumstances connected with the Irish bench to which he felt bound to invite the attention of their Lordships. It would cause him much regret to wound the feelings of a learned and venerable Judge, who enjoyed the warm esteem of all who knew him, and who was entitled to respect and the utmost consideration at the hands of the country. But it was matter of notoriety that the learned functionary who presided over the Court of Queen's Bench in Ireland was of extremely advanced age. It was very painful to be obliged to state such a matter in Parliament, but that was not the first time that it had been necessary to appeal to Parliament in a similar case, or, indeed, in this very case. Some years ago a most learned and able Irish Judge (Baron Pennefather) unfortunately became blind, and afterwards remained upon the bench for three years. He was a man of extraordinary powers, and the ends of justice did not appear to have been frustrated at any period during that time. Nevertheless, he was blind; and the Irish public often asked the question whether any Judge in England would have been allowed to sit in Westminster Hall for three years if he had the misfortune to labour under such an infirmity? That eminent Judge presided at a celebrated trial called the Mountgarret case, which lasted four days.
§ LORD CHELMSFORDwas understood to say, the case to which the noble Marquess alluded was not the Mountgarret but the Colclough case.
THE MABQUESS OF CLANRICARDEThe Mountgarret case also. Well, the trial occupied four or five days, and the judgment delivered by Baron Pennefather 1630 was described by the counsel who heard him as one of the most extraordinary and prodigious efforts of mental power they had ever witnessed. But they did not want prodigies on the Irish bench; and a Judge, however distinguished, ought not, under the circumstances which he had named, to have been suffered to remain at his post. He referred to this case as a precedent for the course which a sense of duty now compelled him to take in regard to another learned and very venerable person in Ireland; because very soon, subsequently to the previous debate to which he alluded, Baron Pennefather tendered his resignation. Whether that resignation was a case of propter hoc, or only of post hoc, he could not say; but he believed the act of resignation shortly followed the discussion in Parliament. In another instance, a petition was presented from Mr. O'Connell, in 1826, to Parliament against Lord Norbury's continuance on the bench, based upon a ground analogous to that which existed in the case which he was now about to mention—namely, extreme age. Lord Norbury was of so advanced an age that he fell into lethargic habits, and was quite unfitted for the proper discharge of his official duties. What then happened? Although Lord Norbury had remained on the bench up to that time, Mr. Secretary Peel did not attempt to defend such a proceeding. The matter was notorious, and all that was urged was, that as the petition stated nothing affecting the learned functionary's honour or character, he was about to retire; and Lord Norbury did so. Again, on another occasion, when the administration of justice in Ireland was impugned, it was laid down in the strongest terms by a noble Earl opposite (the Earl of Derby), and also by the present Prime Minister, that justice ought to be administered with a due regard to the capacity and conduct of the Judges as well in Ireland as in England. Well, what Mr. O'Connell complained of in respect to Lord Norbury unfortunately now applied to the very distinguished and venerable person who was still at the head of the criminal law and the common law of Ireland—the Lord Chief Justice Lefroy. A remarkable trial took place last winter at Birr. An officer stationed there had been barbarously murdered, and a guide or boatman was tried for the crime. He was informed, upon authority which he could not doubt, that the presiding 1631 Judge at that investigation so far mistook the course of the testimony adduced that he was proceeding to charge the jury directly contrary to the evidence upon a point perhaps the most important of all, and certainly most important as concerning the prisoner, because it was the only scintilla of evidence that he could produce to lead the minds of the jury not to think him guilty. The evidence was wholly circumstantial, and the learned Judge totally mistook a most important circumstance. The point was one that was evident to everybody except the learned Lord Chief Justice; but of course he was set right by counsel, and the point was placed correctly before the jury. The jury having found the prisoner guilty, it became the duty of the Lord Chief Justice to pronounce sentence upon the prisoner; but his Lordship was not able to do that in a becoming manner. The sentence was written for him in large hand writing; the judge could not read it; and the Law Officer of the Crown had to stand by him to prompt him in the execution of a duty of the most important character. These are facts which could be proved to the satisfaction of their Lordships, if an inquiry were instituted by the House; and he wished to ask whether the recurrence of such a state of things ought not to be guarded against? If the slightest mistake had been made in the delivery of the sentence, the prisoner would have escaped without any punishment. Such a thing had happened in Ireland. A Judge, now no more, overcome by emotion or agitation, after sentencing two men for murder and robbery, accidentally omitted the words relating to the disposal of the bodies within the gaol. The counsel for the prisoners afterwards made a point of the sentence not having been pronounced in the legally-prescribed form, and the men would wholly have escaped punishment, but that they were subsequently sentenced to imprisonment for life for robbery. But what must be the effect upon the minds of the Irish people of trials so conducted? Without making any charge whatever against the learned Judge, he said it was the imperative duty of the Government to have interfered sooner in that matter; and it was now the duty of Parliament to interpose rather than allow the possibility of such a scene being permitted to continue. Could such things happen in England? Was it to be supposed that any Judge of ninety years of age would be permitted to preside at circuit in England or to sit in West- 1632 minster Hall? [The noble Marquess then read to the House an article from The Fortnightly Review.] The writer, who gave his name, had been a public functionary for several years, and was, he believed, a Member of the bar. He (the Marquess of Clanricarde) wished to speak with every personal respect of this very learned and venerable Judge. He complained of nothing but his prolonged tenure of office. Chief Justice Lefroy was over ninety years of age; he had the infirmities incident to that age, and it was not becoming that the head of the criminal and common law of Ireland should be a person of such extreme age. The noble Marquess concluded by asking, How soon the Second Report of the Commissioners appointed in December, 1861, to inquire into the Procedure of Irish Courts of Law with a view to reduce Costs to Suitors and the Expenditure of the Public money will be presented to Parliament?
LORD DUFFERINsaid, that the Report of the Commission on Procedure was in a forward state, and had been already agreed to by the Irish Commissioners and also by the English Commissioners, with the exception of one Irish and one English Commissioner. On Monday the Report would be submitted finally to the English Commissioners, and he hoped in a very few days to lay it upon their Lordships' table.
§ LORD CHELMSFORDsaid, he desired to make a few observations in answer to the remarks of the noble Marquess. He must express his regret that there had been no intimation in the notice the noble Marquess had given of his intention to make this attack, as he might term it, upon the Lord Chief Justice of the Court of Queen's Bench in Ireland; and it was hardly fair, under a general notice of this kind, to make remarks which the friends of the learned Judge could not be prepared properly to meet, and it was indeed only by accident that they became aware that any observations prejudicial to him would be made. He (Lord Chelmsford) was very imperfectly furnished with any information in answer to the noble Marquess' complaint; but he had obtained some particulars which would enable him to show that at least the noble Marquess was imperfectly informed, and that some at least of the observations he had made were not well founded. He quite agreed that primâ facie the noble Marquess was right, and that the presumption was that a Judge who had arrived at a time of life far beyond the ordinary period of man's 1633 existence could not be perfectly competent to the duties he had to discharge. The noble Marquess, however, must be a little cautious in measuring capacity by age. A distinguished ornament of their Lordships' House had not long passed away, who had adorned every debate with the most profound wisdom and a judicial eloquence that had never been surpassed. That noble and learned Lord (Lord Lyndhurst) on the night that he entered upon his ninetieth year, addressed their Lordships in a most remarkable speech that riveted their attention for more than half-an-hour, in which the most perfect clearness, lucidity, and wisdom showed that his powerful intellect was setting without a cloud. Suppose that that distinguished person had held a judicial office at the time he made that speech, would it have been justifiable to call upon him to resign on the score of his age? And yet, if he understood the noble Marquess, the whole ground of his accusation against the learned Judge was that he had arrived at the age of ninety. Even if there had been any error or mistake on the part of a Judge, that would not be a ground for bringing the matter before the Houses of Parliament, unless it was clear that the mistake arose from the decay of his mental power. But there was not a practitioner in the Court of Queen's Bench who would say that a single decision of the Lord Chief Justice was not what it ought to have been, or that they showed any decay of his mental faculties. From the year 1862 to the present period there had been only four writs of error from the Court of Queen's Bench, and during the last two years only one bill of exceptions had been offered to the ruling of the learned Judge. The noble Marquess asked whether it would be possible that an English Judge of that age would be able to endure the labours required of him here. For twenty-five years the Chief Justice had not missed a single circuit, or town in any circuit, except in the year 1847, when he was suffering from low fever, and was obliged to absent himself for six weeks. He had up to the present moment discharged duties of the most important kind. The criminal business of the Court of Queen's Bench was very considerable; besides which the important questions connected with the New Fishery Acts went to the Court of Queen's Bench. The Chief Justice performed his part in the discharge of those duties, and every one of his decisions met 1634 with the most perfect approbation. The state of business of the Court of Queen's Bench showed how much that Court was resorted to in Ireland. The amount recovered in the Queen's Bench in 1864 was £345,740, in 1865, £445,000; whereas in the Court of Common Pleas the amount was in 1864, £148,000; in 1865, £150,000; and in the Court of Exchequer in 1864, £330,000: the account of the latter Court in 1865 had not been made up. Now, as the attorneys had a choice of their courts, the circumstance that the business of the Queen's Bench was so much greater showed that it must have been the favourite Court. And here he might be permitted to read a portion of a letter which he had received to-day from a gentleman perfectly cognizant with all the facts—Mr. Napier, the ex-Lord Chancellor of Ireland. He said—
As to the Chief Justice, he is the best Judge we have, although he is very old and not very vigorous for complicated cases. But he always finishes his nisi prius cases sooner than the other chiefs. He is so good a Judge that the Bar respect him, and decency and order prevail in his court.They all knew what was attributed to Lord Norbury in the petition of Mr. O'Connell—that he used to fall asleep on the bench; but that had never been said of the Chief Justice, who was always awake and understood the case before him from beginning to end. With regard to the case of King, which had been alluded to by the noble Marquess, he did not know upon what authority the facts were stated; but if he wanted a case which would satisfy him of the strength and vigour of the Chief Justice's intellect it would be that very case. Their Lordships might recollect that a question of law arose in that case with respect to the indictment. By an Act of Parliament in Ireland, if a murder was committed within 500 yards of the boundary of a county the indictment might be laid either in that or the adjacent county. In the case of King, the murder took place not in the county in which the venue was laid, and an objection was taken that it ought to have been stated in the indictment that the murder took place within 500 yards of the boundaries of the county. That question was argued before the Chief Justice with very great ability, and he was of opinion that there was no necessity for introducing that averment in the indictment; but the question was so important, especially as the life of a human creature 1635 was concerned, that he reserved the point. It was accordingly argued before the Judges, and they decided almost unanimously that the judgment of the Chief Justice was right. The only dissentient was Mr. Justice Hayes; but he differed on a point which did not materially affect the decision of the Chief Justice. It had been stated that the Chief Justice began his charge to the jury upon some erroneous view of the real nature of the case. He should like to know upon what authority the noble Marquess had made that statement. He had seen a letter from Mr. Battersby, who was the Crown Prosecutor on that occasion, and that gentleman positively denied many of the allegations made with respect to the Chief Justice. But supposing the Chief Justice had, in the course of the summing up, made some observations which the counsel for the prisoner thought not correct, that was no more than continually happened upon trials in this country. Therefore, unless the noble Marquess meant that the Chief Justice began to sum up as if he were summing up a totally different case, how could it possibly be alleged as a proof of failure of intellect that there was some interruption on the part of counsel for the prisoner? Then it was said that the Chief Justice was so worn out and completely exhausted that when he came to pass sentence he was obliged to have it written out for him in a very large hand, and that then he was scarcely able to read it. But he was informed by Mr. Battersby that such an allegation was entirely erroneous. The noble Marquess said that there was a chance of the jury being so far misled as to acquit the prisoner in consequence of the way in which the learned Judge summed up.
THE MARQUESS OF CLANRICARDEexplained, that the Chief Justice stated that a certain article of dress had been found when it was not found.
§ LORD CHELMSFORDWas that all? Was that the only ground for attributing to the Chief Justice failure of intellectual powers and incapacity to perform his duty? If the imputation on the Lord Chief Justice rested on the fact that he was ninety years of age, it behoved their Lordships to be a little cautious and take care of themselves, because it might affect them very materially if that were the ground upon which a person was to be considered incompetent—and, moreover, they could not tell at what precise age the line of demar- 1636 cation might he drawn. He remembered that some time ago, when Lord Leitrim in presenting a petition made certain charges against the Chief Justice of the Common Pleas in Ireland which he (Lord Chelmsford) did not think sufficient, he induced the noble Lord to withdraw his Motion. But Lord Leitrim was on that occasion very sharply rebuked by Lord Campbell, then Lord Chancellor, for having brought a charge against a Judge unless he was prepared to found thereon an Address to the Crown praying for his removal. Now, he did not mean to say that if a Judge was really incapable—if his mental faculties were so impaired as to render him unfit for the discharge of his duties, and if he still clung to the bench so that the force of public opinion could not induce him to resign, both Houses of Parliament might not address the Crown to remove him. But no case ought to be brought forward unless it were of a nature so serious as to lead to that result. Age, and age alone, being the ground upon which the noble Marquess had proceeded, and there being no proof whatever that there had been any failure of justice or any display of mental incapacity, the noble Marquess might very well have spared the observations he had considered it his duty to make. Having such an accusation to bring against the learned Judge, it was hardly fair of the noble Marquess not to give distinct notice of it and of the grounds upon which it was made, in order that the learned Judge might have been able to answer categorically every charge that was made.
VISCOUNT LIFFORDsaid, he thought the attack which the noble Marquess had made on the Lord Chief Justice was altogether unfounded. It did not inevitably follow that the infirmities of age disqualified Judges for the discharge of their duties. The noble Marquess had said that they did not want prodigies on the Irish bench. He (Viscount Lifford) thought they did, and that when they had got one they had better keep him. The noble Marquess had said that a Judge of such an advanced age would not be tolerated in England. But the noble Marquess seemed to have forgotten that there was such a Judge as the Lord Chief Baron Pollock, who he hoped would live to adorn the bench many years yet. He was honoured with the friendship of Baron Pennefather, who, when past the age of eighty, and perfectly blind, presiding over a trial, 1637 followed a long arithmetical calculation so closely as to detect an error immediately, and on another occasion explained a question of boundaries better than any of the jury could have done, although they had studied it with the aid of maps. Chief Baron Pollock was not much younger than Lord Chief Justice Lefroy, and yet no complaint was made of him. The noble Marquess had hinted that the love of emolument kept the Lord Chief Justice on the bench. He (Viscount Lifford) submitted that it was something higher. They loved their profession; they were naturally proud of doing better than they believed younger men could, and there was the unwillingness to give up the successful performance of important duties. He would read the letter, to which reference had been made, from the leading counsel of the Home Circuit, who, writing on the 31st of March, said—
The Chief Justice discharged his duties as well as he ever did last circuit, and better than many of his juniors could have done. He tried at Maryborough as complicated a right of way as could be conceived, and at seven o'clock p.m. charged the jury most accurately and clearly upon the law and facts. When Parliament meet, I should think they will have something else to do besides trying to make vacancies for their friends here.The amount of money recovered in the trials in the Court of Queen's Bench in 1864 was £345,740. What would have been thought if, after the delivery of that remarkable speech which Lord Lyndhurst made on the day he attained his ninetieth year, any of the younger Members of their Lordships' House had risen, and, in Parliamentary language, said, "Go home, you dotard; you are ninety; let younger men perform the duty to which you are unequal?" Yet this was what the noble Marquess had practically said in reference to the Chief Justice of the Queen's Bench.
THE MARQUESS OF CLANRICARDEsaid, he was glad to have been reminded of Lord Lyndhurst, and would ask—Did he continue to discharge judicial duties up to the age of ninety? He had long ceased before that age to sit in that House on appeals avowedly on the score of his age; yet the occasional hearing of an appeal, still less the delivery of a speech in that House, did not involve the fatigue inseparable from presiding over the Court of Queen's Bench. The information he had was inconsistent with what had been stated with respect to the conduct of the business of the Irish Court of Queen's Bench. It was, he understood, notorious 1638 that the business was arranged so that complicated cases did not come before the Chief Justice, and that cases were postponed in order that he might not try them. It might be true that for a part of the day his intellect was as clear as it was in his youth; but it did not follow that his physical faculties would enable him to give throughout a day equally sustained attention to a lengthened case. He had done his duty in bringing forward a grievance; he would leave the matter in the hands of the Government for the present, and if there were an inquiry he would undertake to support what he had stated by the best possible evidence. The mention of Baron Pennefather's blindness reminded him of a case which came before that learned Judge. The charge was forgery, and the question turned upon a comparison of handwritings. The prisoner knew well the infirmity of the learned Judge, but pretended not to know it, and begged of the Judge to compare the two writings, well knowing he could not do so. Would blindness in a Judge be tolerated at Westminster, or even at Clerkenwell?
THE EARL OF LONGFORDregretted that the attacks which had been made elsewhere on the Lord Chief Justice had been repeated in that House. He had never heard any complaint from any suitor in Ireland as to any failure of justice in cases before the Court of Queen's Bench. He had the great advantage of constantly meeting the Lord Chief Justice, both in town and country, and frequently at late hours; and he could affirm that no ground existed for the charge that he was incompetent to perform the duties of the great office which he so worthily filled.