§ Sir John Newport
proposed an amendment in the clause, enacting, that a serjeant or barrister at law should preside at each of the county meetings for trying offenders under the bill.
§ The house divided: For the amendment, 29; against it, 53.
§ Sir John Newport
stated, that gross abuses, as he knew from local information, had prevailed in the searching of houses, particularly with respect to females, who had in some cases been indecently outraged. He wished, therefore, for an amendment in the clause respecting the searching of houses after sun-set. The amendment which he would propose was, That the magistrate should make out a list of proper persons to be employed for this purpose, for the approbation of the quarter sessions, and that he should be responsible for the good behaviour of such persons in the discharge of their duty. If this could not be adopted, and he foresaw no objection to it from the chance that persons so approved of might not be present at the time they might be wanted, he would then propose that the magistrate should be bound in a penalty of 100l. to send in the names of the persons employed to the quarter sessions within 48 hours after they should have been engaged in such search, that he might, in this way, become in some respect responsible. A strong check was necessary 912 on such a power as this, and unless this amendment, or something equivalent to it, was adopted, he would oppose the clause altogether, and divide the house on it.
Sir A. Wellesley and the Chancellor of the Exchequer
had no objection to the principle of the latter amendment, but wished it should be delayed till the report of the bill, that they might have time to consider whether it could be adopted in consistency with other necessary objects.
§ Mr. Croker
proposed an amendment to the clause, substituting instead of the words, "and in case of refusal to enter by force," the following words, "and in case admittance shall be refused tea minutes after being demanded, then such magistrates and their officers, bailiffs, &c. shall be allowed to break into said dwelling by force."
§ Colonel Vereker
disapproved of the words, "ten minutes;" he thought such amendments would go to fritter away the bill altogether.
§ Sir S. Romilly
was astonished, that in the case of so serious a nature as forcible entry into the house of the king's subjects, a provision to give that subject a reasonable time to provide against that forcible entry by voluntarily admitting the officer, should be termed by any gentleman in that house an attempt to fritter away the bill. It was a clause not so much of relaxation as of common justice.
§ Colonel Vereker
explained, and said that there was another objection to such precise mention of the time, that unless there was moonlight, or that the bailiffs had lights and matches, it could not be ascertained.
said, that another objection was, that the majority of such officers were not individually worth a watch.
§ Dr. Laurence
ridiculed such objections, and contended that the "ten minutes" should be distinctly specified.
The Chancellor of the Exchequer
had no objection to the amendment, provided the words "a reasonable time" were put for the words "ten minutes," for if an entire village was to he searched, ten minutes waiting at the door of every house in that village would be an unconscionable length of time; he proposed, therefore, the substitution of the words "a reasonable time."
§ Mr. Whitbread and sir J. Newport
commented forcibly on the vagueness of the terms suggested by the chancellor of the 913 exchequer, and expressed their surprise that the hon. gent. with whom the amendment had originated, could be so readily induced to give up the principal point in it.
§ Mr. Laing
instanced the definite time expressly limited in the riot act, and thought the present case as more deeply involving the rights of the subject, than the dispersion of a lawless mob by force of arms; he thought the hon. gent. (Mr. Croker) had been indeed hasty in giving way to certain authorities.
§ Mr. Croker
said, in justification of himself, that he was but a young member of parliament, and that it was natural for him to bow to authority; besides, he thought that the right hon. baronet over the way approved of the words "a reasonable time," [here sir J. Newport expressly signified his dissent]; however, he was himself inclined to think the final words "ten minutes," better than those last proposed, though he should not wish to divide the committee upon them.
§ Mr. Grattan
said that the committee were about to invest an extraordinary power somewhere. It ought therefore to be done with caution: but who were the persons to be invested with the power? perhaps some lawless miscreant, some vagabond, or perhaps the discretion of their "reasonable time", was to be lodged in the bosom of any convenient menial, some postilion, coachman, hostler, or ploughboy, who under the sanction of the law was to judge when it would be a reasonable time for him to rush into the apartment of a female, while she was hastily throwing on her clothes, to open the door to this midnight visitor; this would give a wound that would be felt long; it would throw a general odium about the bill. If the character of the bill would be saved, any thing admitting the possibility of such abuse should be sacrificed to it.
§ Mr. J. C. Beresford
said, that a stranger who had heard the last twenty minutes conversation, would be apt to suppose that the Irish magistrates had a general propensity to break open doors and burst into ladies' bed-chambers. He vindicated the Irish magistracy, and said, that he did not speak there as a party-man, but as an Irishman.
was convinced, from what came within his own knowledge, of the necessity of great caution in the case now before the committee. He thought it much better to have the time ascertained by law.
thought that the 914 committee was arguing wide of the case in point. The question was not about the principle of forcible entry, that was agreed to; the right of the domiciliary visit was admitted on all sides, and the question simply was, whether "a reasonable time" were words better fitted for the purpose had in view than the words "ten minutes?" he for his part thought they were, and put different cases, each of which he thought bore him out in his opinion; some of those cases might not be thought very probable; but, surely, any of them were more probable than that put by the right hon. gent. (Mr. Grattan), of the lady or the female in her bed-chamber. He did not, he confessed, feel so nicely on the subject as that right hon. gentleman.
§ Mr. Grattan
said, that the learned gent. had told the committee what it ought to argue upon, and what it ought not to argue upon. It was good in that learned gent. to give the committee the aid of his instruction: but is the gentleman, said Mr. Grattan, quite sure of being himself altogether right? In the first place, all the other questions are not wholly gone by; for I may agree to the clause or its modification, or reject both, and afterwards agree to or dissent from the principle of the bill itself. Again, has the learned gent. been right in his statement of the question? He has argued on the propriety of vesting the magistrate with the discretion of judging of the "reasonable time;" but this is not the question. It is, whether you vest any commissioned ruffian with that discretion? Here, then, the learned gent. mistated what he was to argue upon and then did he even argue fairly on that mistatement?—No; for he takes that as impossible which I myself have known to have taken place. He says, such ruffians as I describe could never have been officially employed, and have made their office the pretence of wanton ou[...]rage: but I have known such ruffians to have been employed, and such outrages to have been committed—[Hear! hear!]—that delicacy of the other sex has been grossly obtruded on and wantonly insulted—this was no light matter—there was more in that sentiment than a joke could do away—the honour of a female in any class—it was wrong to make it the subject of parliamentary jocularity.
§ Dr. Laurence
and sir S. Romilly followed on the same side, both gentlemen's ating, that their right hon. friend (Mr. 915 Grattan) had put the question in its true light. It was not investing the magistrate, but his menial bailiff, with a dangerous discretion.—Mr. Laing having proposed the amendment in its original form, Mr. Croker said, that as he had not withdrawn his amendment, he should not give it up. —The committee then divided,
On the following clause, "Provided always, and be it further enacted, that when a verdict shall be given for the plaintiff in any action to be brought against any justice of the peace, peace-officer, or other person, for taking or imprisoning, or detaining any person, or for seizing arms, or entering houses under colour of any authority given by this act, and it shall appear to the judge or judges before whom the same shall be tried, that there was a probable cause for doing the act complained of in such action, and the judge or court shall certify the same on record, then and in that case the plaintiff shall not be entitled to more than 6d. damages, nor to any costs of suit,"
For the "ten minutes," 30 For "a reasonable time," 71 Majority 41
The Chancellor of the Exchequer
admitted that the clause was not one which he could have wished to see introduced: but, when the necessity of the case was considered; when it was recollected that the state of Ireland required that very irksome and disagreeable duties should be imposed on the magistrates, winch they would be unwilling to perform, and which, in fact, it would be dangerous, for them to perform with the zeal and fidelity required, unless they were protected from the effects of unintentional errors into which, from appearances, they might be led; when, in short, it was considered that the very jurors in such actions of damages might be persons against whom it had been necessary for them to exercise the enactments of this act, and whose minds might, of that account, be inflamed against them; when all these things were considered, it was the opinion of those best acquainted with the state of Ireland, that the act must be imperfectly executed, unless the magistrates were secured by a clause like the present.
Sir Arthur Pigott
said, he was decidedly of opinion, that the provision now objected 916 to, would be a disgrace to the statute book. Were they, by this most extraordinary bill, to give extraordinary powers to magistrates, and then, after they had exceeded even the powers given them, to protect them from the verdict of a jury? If the right hon. gent. was afraid that the persons aggrieved might obtain a verdict while the country was in a state of irritation, why limit the time for seeking redress to six months? If, again, he was afraid of the inflammable state of the jurors' minds, and that they might even have been parties in the supposed transgression, the remedy was plain and easy—to change the venue to a more distant county, where no dissatisfaction or irritation of feelings had prevailed. It had been said, that a similar act had been intended to be proposed by the late ministry. He would only say for one, that he had never been consulted, nor had heard of such an intention, nor had he ever seen the present bill till yesterday. If the state of Ireland was such as the right hon. gent. represented, and that a jury could not be had there whose minds were not in an inflammatory state, why not take away the trial by jury entirely, at least suspend it, till the feelings of the people were restored to a greater degree of calmness and composure? It was a mockery to continue the trial by jury, and yet to deprive an injured person of the effect of a verdict after it had been given in his favour. It was said, that the judges of Ireland were fair, impartial, and upright. He should be sorry to doubt it. He believed, that they, in common with the judges in this part of the kingdom, with whom he was more intimately acquainted, possessed every honourable and upright feeling and quality. But this was a power not to be intrusted to any man. It was such a power as the law had refused to any judge, or any set of judges whatever.
contended, that the enactment now objected to was not so novel as the hon. and learned baronet had supposed. He confessed that plaintiffs in the situation alluded to were to be deprived of the benefit of the common law; but was not this already the case in all revenue questions? Where an officer of the revenue was sued, nothing but the dry damage sustained by the injured party was awarded against him. Where it was a question of intention in revenue cases, and no intention could be shewn, the plaintiff could not recover; and it had been determined, in the 917 case of Sutton and Johnston, that the question of "probable cause" was a question for the judge. There the defendant would have an acquittal, and of course his costs from the plaintiff; here the plaintiff was to have a nominal verdict, even although the judge was of opinion that the probable cause was with the defendant. The duties which magistrates would have to perform in the present state of Ireland, were of a most invidious nature, and he thought that this was not too great an indemnity to allow them in the discharge of such duties.
Mr. Boyle (solicitor-general for Scotland)
contended that the hon. and learned gent. (sir A. Pigott) had gone too far in treating the proposed resolution as so great a novelty, and as so grievous an infringement of the law and constitution of this country. If the hon. and learned gent. had consulted the statute book, he would have found that similar resolutions as to Ireland had been passed repeatedly before this time, nay that at this moment such formed a part of the law of the land. If the hon. and learned gent. had found the enactment in question so very obnoxious, why did he not come forward in his official situation, when he was attorney-general, and move that it be expunged from the statute book? He had no doubt that the hon. and learned person, when in office, agreed with his friends in the ministry in thinking the clause in dispute essential to the well-being of Ireland. He (Mr. Boyle) recollected being in the house on the evening when the present bill was introduced, and remembered perfectly well that gentlemen on every side agreed in the necessity of the measure, except one hon. gent., whom he now saw in his place, (Mr. Sheridan,) who declared, he had no doubt most conscientiously, his resolution to oppose the bill in every stage.
§ Mr. Whitbread
declared, that he had not heard a legal or constitutional sentiment uttered on the subject, except what had fallen from his hon. friend behind him, (sir A. Pigott). He had, indeed, heard something like an attempt at a legal defence of the measure, by shewing that such practices also prevailed in revenue questions. But would that render the power more agreeable to law or to the constitution? Was it not known and acknowledged, that our revenue laws were infractions of our constitutional liberties, and were only tolerated as acts of necessity, which, indeed, was the 918 only attempt at a vindication of the present measure? The necessity of the revenue laws we must all be aware of, a great revenue could not otherwise be expected to be levied; but of the necessity of the present provision, he confessed he was by no means convinced. An hon. gent. (Mr. Boyle) had, however, treated the provision as part of the existing laws of this country, and had asked, why, if so obnoxious to his learned friend (sir A. Pigott), he had not moved to have it expunged from the statute book? A provision to the same effect he (Mr. Whitbread) admitted, did make part of a statute of the parliament of Ireland, which would expire on the 1st of August. It would have been too much however, he suspected, for his learned friend to have come forward here, and moved to have that enactment expunged. At all events, an enactment of the Irish parliament could not act as a precedent for that house, or afford any such argument for now adopting it, as if they had been re-enacting a former legislative measure of their own. There might be a general conviction of the necessity of the present act, and yet the clogging it with one clause similar to that now objected to, might render it so unpalatable that many gentlemen who, like himself, were not otherwise unfriendly to the measure, might rather wish to see Ireland take its chance than thus relinquish one of its dearest and most valuable rights. It was hardly possible, but that in the execution of such an act as the present, innocent persons should suffer wrong. Their country, however, would still be naturally dear to them, and they would cheer themselves with the hope that they had still a remedy left; that they had still a jury to protect them, and to redress the wrongs they had sustained. If the clause now objected to, however, should pass, they could have no such consolation. They might appeal to a jury; a jury might give them redress; but they might then find the judge interpose, and deprive them of that recompence for their wrongs to which they were justly entitled. He would ask, could a man in this situation have the same feelings towards his country as if no such clause had found its way into the present bill?
§ Sir John Newport
related two cases in which the precipitancy of the magistrates had been the ru[...]n of two worthy individuals; the one, that of a merchant who was taken upon suspicion; 100,000l. bail was offered for his appearance at the necessary time; this was refused; the man's business was 919 ruined for want of his own presence to conduct it, and he became a bankrupt. He afterwards went out to America; he carried with him the disease of the mind which had thus been occasioned, became melancholy, his senses were deranged, and he made an attempt upon his life. Another person was apprehended in the county of Tipperary, because he was guilty of having a piece of French manuscript in his pocket, and by order of the sheriff he was flogged, because the sheriff in his extreme loyal zeal concluded that the manuscript must be seditious, or it would not have been written in French, a language which he did not understand. He therefore intreated gentlemen to look a little at the other side; to feel a little for the injured individual as well as for the erring magistrates.
§ Mr. Windham
always considered the principle of the revenue laws a very deplorable departure from the general principles of British legislation, and could not readily be induced to think that we ought to adopt what must be in some instances an unjust exception, instead of what was an acknowledged, just, and liberal established rule. The case of Sutton and Johnston was a singular exception not extremely worthy of imitation.
said, that if this clause was omitted, all the preceding clauses might be cancelled also.
§ Lord H. Petty
declared, that in every principle of justice we were bound to administer relief to the injured individual, even though it should not be done at the expence of the magistrate.
§ Lord Milton
reprobated severely the injustice of the measure: as a matter of policy even, it was to be considered, that such a measure would naturally irritate men's minds—when they felt that they had suffered damage, when they appealed to a court of justice, and a jury awarded them some compensation in damages, and yet it was not in the power of the jury to extend to the in ividual that justice to which they knew he was entitled. When he saw the verdict of the jury superseded by the decision of the judge, was that a way to reconcile the feelings of Irishmen? was that a way to bind Ireland by friendly attachment to this country?
The Chancellor of the Exchequer
main- 920 tained that the decision would be strengthened, the interest of individuals would be better secured, by the opinion of the Judge and Jury being both made public. He contended that the cases to which gentlemen alluded appeared to be what the law termed áamnum sine injuriâ and private interest must give way to public good.
§ Mr. Windham
said, that if the magistrate was supposed to be innocent, that is, with respect to the quo animo with which he acted, and yet it was seen that an individual suffered materially, government or the country should reimburse the sufferer.
said, that if the verdict of a jury was supposed to be erroneous, the constitution had provided a legal mode of redress to the party who supposed himself aggrieved, as he might move for a new trial, then for a second, and so on to a third; and, if three juries of the county were agreed as to the same chief point, however highly he respected the character and general conduct of the judges in England and in Ireland, he must say, that he should think the verdict of three distinct juries infinitely preferable, to that of any individual who might oppose their decision, however highly venerable that individual might be seen in other respects.—The committee then divided upon this clause, and the numbers were: For the original clause, 75; for the amendment, 28; Majority 47.
Upon the period of "two years, and to the end of the next ensuing session of parliament," being proposed for the duration of the act,
§ Sir John Newport
rose and deprecated such a period, as it implied the contemplation of a necessity which might cease long before parliament was in the habit of annually considering the Mutiny bill, and the reasons which induced that habit pleaded with still stronger force for the annual consideration of a measure of this nature, which would go to put Ireland out of the pale of the constitution. What, he would ask, would gentlemen say, if it were proposed for such, or indeed for any period, to put England in such a situation?
§ General Phipps ,
who stated, that if England were in such a state as that of Ireland, or likely to be so, he believed that no English gentleman would be found to oppose the adoption of a measure similar to the present.
§ Mr. Windham
thought that shortening 921 the duration of the bill would be a sort of pledge to the Irish people of the reluctance with which parliament imposed such an act upon them, while its present extended duration would directly indicate an indifference upon the subject. For, although the necessity for the bill might now be fully evident, still no man could presume that the period objected to might not long survive that necessity.
The Chancellor of the Exchequer
was decidedly of opinion that the clause ought to pass in its present stage, because there was no probability that the necessity which called for the bill would so soon cease; and also because it wits desirable to prevent the agitation of a question of this nature so often as the right hon. baronet professed to wish lest such agitation might tend to aggravate the evil which the bill was meant to cure.
§ Mr. Grattan
deprecated the continuance of the bill for so long a term as that proposed by the clause now in discussion, and earnestly intreated the house to comply with the suggestion of his right hon. friend (sir J. Newport). The right hon. the chancellor of the exchequer, he said, had argued, that this bill would cease to operate as soon as the occasion for it should cease, and that it could be no grievance where it was not in operation. He (Mr. G) denied the fact. Would the house, without any proofs at its bar, or appointing any committee to enquire into the situation of Ireland, and report on the necessity of the case, proceed to pass a bill, abrogating in Ireland for three years, the rights of the constitution, merely because, at present, there was a manifest disposition in some places which called for vigilance and the strong hand of coercion? Was it no grievance to declare the power of the crown absolute and to authorize government proclaim the whole or any part of the people of Ireland out of the king's peace, and liable to military execution or arbitrary transportation? But, supposing such power vested in the hands of the most wise and humane chief governor that ever existed, was it no grievance for a free people to feel themselves placed in such a predicament for 3 whole years, without any examination into the necessity of such a measure? Would the people of England think it no grievance that parliament should declare the power of the crown absolute for 3 years, even under the most mild, humane, and benevolent monarch that ever existed? He had said, that he would vote for this bill, 922 because he was sorry to say there existed some necessity for it. He knew it was extremely unpopular in Ireland, from the hundreds of letters he himself had received upon the subject; but still, under the existence of some necessity, he was ready to vote for the bill, and to take his own full share of the odium and unpopularity attached to it. This was a time in which every man should be prepared to sacrifice, not only some portion of his liberty, but of his popularity also, for the safety of his country: he was ready to sacrifice both, for the good of the state, because he would rather give up his situation as a representative of his country, than sacrifice public security at the shrine of popularity. He was assured by his right hon. friend near him ( Mr. Elliot, the late secretary for Ireland), that there were in various parts of Ireland, secret nocturnal meetings of a dark and dangerous nature. This called for the bill, and therefore he would vote for it, even without the modification of the clause required by the right hon. baronet. But he most earnestly intreated of the house, and of the right hon. gentleman opposite to him, not to push this bill to an extent so unnecessary, which even the Irish parliament, at a period, and in a state of things much more generally alarming, only passed for one year, afterwards for two, and lastly, in the hour of its death, just before the union, perpetuated for seven years. The feeling he wished the house to impress by this bill upon the people of Ireland was, that it was a measure of necessity, which would cease with the cause, and subside with the disposition it was intended to correct; but he seriously apprehended, that its enactment for 3 years would tend to aggravate the mischiefs it was intended to correct, because, by evincing to the people of Ireland an indifference towards extending to them British privileges, a question might arise in their minds, whether to prefer the military government of France, or the suspended constitution of England. The question in Ireland now had nothing to do with religious conflict, or republican principle, but was simply this, whether Ireland should continue a portion of the British empire; or become not a portion of France—but absolutely nothing: for annihilation would be her fate under French conquest. He knew very well, France would have her spies in Ireland to create a French party, and to endeavour to foment a French connection, first by coquetting— but with a certain view to mere rici[...]us in- 923 tercourse. This was the danger he most deprecated, and against the possibility of which he desired to caution that house, and to warn his countrymen. It was not merely by this bill, or any other measure of legal expediency, that this danger was to be avoided, but by that species of parental and friendly treatment which counsels while it restrains, and admonishes while it corrects. He would recommend the gentlemen of that country not at this crisis to content themselves with mere precaution, or rely upon measures of severity and irritation. He counselled them to go personally from hamlet to hamlet, from house to house —to canvass the people for their country, with the same zeal with which they canvassed votes for their elections; to open their eyes to the danger and ruinous consequence of French connexion; and to hold out to them the solemn assurance of redress of all their grievances, and the abolition of all invidious distinctions and disabilities on the score of religion. [Here a cry of no! no! no!] "Gentlemen who say no, continued Mr. Grattan, know nothing of the interests of Ireland, and don't understand their own. Believe me, in this hour of peril, the aid of the people of Ireland is of the utmost importance to the empire, and you stand in need of it all. It is of the last importance, then, that you canvass for it in the way most likely to secure it. I earnestly advise, that on the subject of Catholic emancipation, which I shall not discuss now, the minds and the hopes of that people may be set at rest, by the solemn assurance that their firm and loyal adherence to England in this last and most perilous struggle, shall be the price of their complete admission to all the rights of the British constitution, consistent with reason and justice. Nations are often the arbiters of their own fate, and you have it now in your power to secure that inviolable attachment of the Irish people with which you may reckon on your security; but without which, that security, I fear, would be problematical. I again earnestly intreat gentlemen connected with Ireland, to use every means in their power to excite amongst the people an attachment to the empire, and above all to that fundamental maxim of British policy, to have nothing to do with France. I shall conclude with giving my support to the bill; in deprecating however the long term of its proposed continuance. I know my conduct may in this case be unpopular amongst many of my countrymen, but 924 I never will capitulate with popular error, though I shall ever respect popularity when the attendant on public virtue.
§ Mr. J. C. Beresford
congratulated the house, the country, and the right hon. gent., on the sentiments which he had just uttered, and which he hoped and trusted would have a due impression in Ireland.
deprecated the idea, that any objection offered by himself and his friends to the details of this measure, proceeded from a disposition to oppose the principle of the measure itself. On the contrary, he was anxious to support the bill, with regard to the necessity for which no change whatever had taken place in his sentiments since his retirement from office. But, as to the bill itself, he declared that although a draft of it had been sent to him from Ireland, just previous to the change of administration, he had never read it until lately introduced by the right hon. baronet.
The Chancellor of the Exchequer
declared his satisfaction at the speech of the right hon. gent. which had excited so much admiration, but re-stated his reasons for proposing the enactment of the measure for two years, which nothing that he had heard could induce him to alter. If the bill was not popular in Ireland, that was to him a proof of its necessity.—The committee then divided: For the original clause, 68; against it, 21. After which the house resumed.