HC Deb 11 April 1823 vol 8 cc812-22
Mr. Wetherell

said, he had been requested to present a petition from the Grand Jury of the city of Dublin, in the absence of the members for that city, one of whom was attending, his duties in Ireland. He had only yesterday received a letter requesting him to present the petition. There would not have been time to write to Dublin, and to receive an answer before Tuesday next, which was the day appointed for the motion of the hon. member for Armagh (Mr. Brownlow), otherwise he should have felt it is duty to inform the parties from whom he had received the petition, that he could do no more than merely present it to the House. The conduct of the grand jury to which the petition referred would form a distinct part of the debate on Tuesday next; and therefore he should be unwilling to anticipate the discussion upon that subject. The petition having, however, been placed in his hands for presentation, it would have been uncourteous on his part to refuse to bring it under the notice of the House, although he would not pledge himself to any particular line of conduct hereafter. The petition complained of some observations which had been made by the attorney-general for Ireland upon the conduct of the grand jury of Dublin, after they had thrown out the bills which that learned gentleman had preferred against the rioters in the Dublin theatre.

The petition was brought up, and read, as follows: To the Right Honourable and Honourable the Knights, Citizens, and Burgesses, of the United Kingdom of Great Britain and Ireland, in Parliament assembled.

"The Petition of the Grand Jury of the County of the City of Dublin, at a Commission of Oyer, and Terminer, held at Green-street, on the 1st of January, 1823,

"Humbly Sheweth—That your petitioners having been impanelled and sworn on the 1st day of January last, were charged by Mr. Justice Moore, the senior and presiding judge at the commission, and were by him apprised, that in the course of their official duties bills of indictments would be preferred to them against persons charged with having participated in the Riots which were alleged to have occurred at the Theatre Royal on the 14th of December, 1822, in the presence of his excellency the lord-lieutenant. That his lordship did most particularly impress on your petitioners the imperious necessity of confining their attention to the evidence that should be submitted to them, and discharging from their minds any impression which they might previously have received from the public rumour. That bills of indictment were on the 1st day of the commission preferred to your petitioners against ten persons, by which they were charged with a conspiracy to riot, and assault, and insult his excellency the lord-lieutenant, at the theatre royal, and by which they were also charged with having committed a riot in his excellency's presence.

"That, in support of those indictments, a great number of witnesses were sent to your petitioners, who, not being able to close the said examination on the 1st, adjourned to the 2nd of January, when, after examining other witnesses, and deliberating on the evidence, they ignored the bills for a conspiracy against all the parties, and ignored the bill for a riot against all of them, except George Graham and Henry Handwich, as to whom they found the bill.

"That your petitioners are informed, and will be able to prove, that as soon as the proceedings were communicated to his majesty's attorney-general, who was then in court, and engaged in an important prosecution, he rose and addressed the bench, in substance, as follows:—'My Lords—Upon a case the most interesting that ever occurred in this country, two bills of indictment have been sent up to the grand jury of the city of Dublin against five persons; one set of bills charging a conspiracy to cause a riot at the theatre, in which the person of the lord-lieutenant was outraged and insulted, the other bills charging a riot generally. Upon the first indictment the grand jury of the city of Dublin have ignored the bills against all parties. Upon the second indictment they have found a riot committed, implicating two of the persons in the indictment, Graham, and one of the Handwiches; it is needless to observe to the court, that according to the technicalities of our law, a riot cannot be committed by only two persons; had even the bills been found for a riot only against all the parties, I would have then felt it to be my duty to adopt the line of conduct I am about to intimate in the presence of the court. I will not arrogate to myself the office of arraigning the grand jury of the city of Dublin; they have discharged their functions in the presence of their God; under the sanction of a solemn oath, taken in the face of their country; to that God alone are they accountable. But I have also a duty to perform—I will, without anticipating the guilt of any individual, state solemnly, in the presence of this crowded audience, that in all my readings—in all my experience—in all the annals of this unfortunate country—I never did find a case so fully demonstrated, of the foulest conspiracy to riot, of so much atrocity, as scarcely to be heightened by the aggravation, that that ill-avowed object was to insult and outrage the representative of the king's majesty in the public theatre. I will exercise the prerogative that the law and constitution have given to my office; I will discharge that duty honestly, and with the blessing of God, fearlessly, unintimidated by that gang which have formed themselves into a faction to beard the king's government, to overturn the laws of the country, and even to insult and outrage the very person of the king's representative in Ireland, and pursuing the course of outrage and violence from the hostility that they had taken up against that venerated nobleman, for zeal and firmness in carrying into effect the king's intentions towards Ireland, of allaying the dissention, and healing the wounds that have afflicted this unhappy country. The course of conduct that my duty directs me to pursue, will be in the execution of the prerogative annexed to my office, to file ex officio informations, and speedily to bring before the country all the parties charged in these indictments.'

"That the petitioners were not present at the delivery of the Address, nor were they until Saturday, the 4th of January, able to satisfy themselves that the above statement of it was substantially correct.

"That they heard that one of the learned judges had, on Friday, the 3rd, expressed surprise at their decision, and they felt that it no longer became them to remain silent, and that they owed it to themselves as individuals, and as a body, engaged in the administration of justice under the sacred obligation of their oaths, to remonstrate against imputations, the severity of which they felt the more keenly, as well because they seemed sanctioned by high authority, as because they were precluded from the power of refuting them.

"That the petitioners, though fully satisfied that the language of the attorney-general was calculated to impress every one who heard it with the conviction that he intended to impute to them, not an error of judgment, but a violation of their oaths, did yet believe it possible that there was some mistake in the Report of his observations, and they, therefore, determined to address the court in terms of remonstrance, which, at the same time that they should unequivocally repel the charge of corruption, should leave room for explanation, and enable the attorney-general to do them the justice of withdrawing the heavy charge which his address, as reported, was manifestly calculated to convey.

"That, under the influence of those feelings, they on Monday the 6th of Jan. addressed the court by their foreman in the following words:—

"'My lords;—We the commission, grand jury of Oyer and Terminer of the county of the city of Dublin, have learned with deep regret, that the discharge of our official duties with respect to certain bills of indictment has been made a subject of animadversion by his majesty's attorney-general, and has been pronounced by this high court to have been a matter of surprise; we hope, that neither the court, nor, with its sanction, his majesty's first law officer, intended to convey an imputation that our judgment was influenced by fear, favour, or affection. A charge of such a nature, without adverting to the enormity of the crime which it would impute, would be essentially unjust, for our oath of secrecy which forbids the disclosure of the grounds of our judgment, would render the vindication of that judgment, and if necessary the satisfactory refutation of such a charge, impossible. It must be recollected, that to us exclusively is the evidence known on which our judgment was founded, and they therefore trust, that this high court will receive the declaration which we now solemnly and unanimously make, that our decision was the result of a laborious scrutiny of the evidence, of a conscientious consideration of its weight, and of a sincere anxiety to adhere to the direction of the learned judge, who so fully and clearly detailed to us the nature of our duties, and the principles by which we were bound to be regulated in discharging them.'

"That the presiding judge, Mr. Justice Moore, having been pleased to express his approbation of the manner and substance of their remonstrance, and to declare, that, as far as related to what had fallen from the Bench, the language of the court had been grossly misrepresented, your petitioners feel themselves no longer entitled to impute to his lordship any intention of censuring their conduct.

"That this remonstrance, thus publicly made in open court, has, as your petitioners believe, been communicated to his majesty's attorney-general, whose omission to notice or reply to it, induces them to conclude that the charge intimated by his observations is persisted in: and, under the circumstances, your petitioners are advised that a petition to parliament is the only course by which they can constitutionally obtain any sort of redress. They do, therefore, humbly submit, that the address of his majesty's attorney-general, though it professes not to arraign, does, in fact and in substance, arraign your petitioners; that it does most distinctly declare, that the case was one in which the foulest conspiracy had been fully demonstrated; that these unwarrantable reflections of his majesty's attorney-general press with the greatest severity and weight on your petitioners, because by the law of the land they are deprived of the means of demonstrating their injustice; bound by the solemn obligation of an oath to the observance of secrecy, they are not at liberty to divulge the nature of the evidence they have heard, or the reasons of the judgment they have pronounced. That the address of the attorney-general, in addition to the general charge of corruption against your petitioners, contained an insinuation that they had found bills for a riot against two only of the prisoners indicted, with a knowledge that by the rules of law such finding would be abortive, and with a criminal design of defeating any further proceedings thereon. But your petitioners not only solemnly deny the justice of such an imputation, but utterly disclaimed that knowledge of the law which it supposes, and have since found upon inquiry, that the technical difficulty suggested by the attorney-general, presented no obstacle to the prosecution of two persons, against whom the bills were found, and that the Crown might have proceeded to trial, and obtained judgment against them, although the bills preferred against the others had been ignored. That your petitioners having no other mode or means of redress, have at length reluctantly been compelled as an act of duty not only to themselves, their feelings, and their characters, but to the free and due administration of public justice, to submit the consideration of their case to the wisdom of your honourable House, in full reliance that whatever shall be deemed necessary or expedient, to prevent the recurrence of such an evil in future, will be adopted and applied. And your petitioners will ever pray. For and on behalf of self and fellow-jurors,

(Signed) "GEORGE WHITEFORD.

"Dublin, 7th of April, 1823."

Mr. Plunkett

said, he could not, in justice to his own character, allow the allegations of the petition to pass without observation. The petition contained a statement which was calculated to produce an impression upon that House, that he, in the discharge of his duty as a public functionary, had imputed corrupt motives to the grand jury. It might, perhaps, be sufficient for him to leave that part of the charge against him, to the consideration of those who had heard the words imputed to him in the petition itself; for he was sure, that all who heard them must see that they conveyed no such meaning as that which the petitioners had ascribed to them. He would very shortly state the facts to the House, as they had really occurred. An indictment was presented to the grand jury for a conspiracy to cause a riot at the theatre, by which the person of the lord lieutenant was outraged and insulted; that indictment, the grand jury, acting upon their oaths, did not find. Other indictments were then presented to them for a riot and assault generally. These indictments contained two counts: the grand jury refused to find bills on the first count, but found them on the second, in such a manner, however, as to render their finding totally inoperative. When the grand jury returned with that finding, he happened to be in court; and the statement made in the petition was, that his filing ex officio informations against the different parties arose from a hasty and resentful spirit excited by that finding, and not from that cautious deliberation which he ought to have used in the conscientious discharge of his public duty. He felt it due to his own character, to give to that statement the most unqualified contradiction. The bills of indictment were sent up to the grand jury on the 1st of January. The grand jury separated on that day without coming to any determination upon them. On the evening of the same day he was made acquainted with that fact. He was likewise informed by the solicitor of the Crown, that the witnesses, from the manner in which they had been treated in their examinations by the grand jury, were almost unanimously of opinion that no bill would be found. He was at the same time informed of several other facts which he had never yet stated, and which he would not be induced to state, even on the present occasion. Those facts were, however, of such a nature as to lead both himself, the solicitor-general, and another gentleman of the bar, of the name of Townsend, to whom they were submitted, to this conclusion—that, both on account of the jury itself, and of the manner in which it had been empanelled, it would, in all probability, become their duty to file criminal informations against the individuals whom they had, in the first instance, endeavoured to punish by means of indictments. It had been said, that, in filing these informations, he had not so much consulted his public duty as he had given way to party feelings. He trusted that those who had observed the course of his public life wood believe that he was incapable of prostituting to party purposes the powers which he had received, and was sworn to exercise, for the benefit of the Whole community. He thought it right, however, to state, that the solicitor-general, who concurred with him in every step which had been taken to enforce the law against the violators of the public peace, differed diametrically from him on that which was commonly called the Catholic question. But, to return: on the grand jury coming into court, he certainly had risen, and expressed himself in terms similar to those stated in the petition. He had said, that "he would not arrogate to himself the office of arraigning the conduct of the grand jury; they had discharged their functions in the presence of their God, under the sanction of a solemn oath, taken in the face of their country; and that to that God they were alone accountable." He had likewise added, "that he, too, had a duty to perform, and that in the performance of it be would exercise honestly and fearlessly, the prerogative that the law and constitution had given to his office." In order to show that he had acted most fairly towards the grand jury, in making that statement, he would beg leave to read to the House an extract of what he had said to the petty jury, when the trial afterwards came on; but before he did so, be would inform the House, that the grand jury, on a subsequent day, when he was not present, went into court and addressed the judge. They stated to him, that they had heard that he (Mr. P.) had imputed improper motives to them; and they complained that he had not sent them any apology for having made what they called so groundless an imputation. He would not stop to examine whether he was called upon to make such apology, or whether it would have been consistent for him, exercising, as he did, the high functions of public prosecutor, to have stooped to such a measure. He would merely say, that the grand jury had not acted fairly towards him, in giving only a partial account of the judge's reply to their application. In common justice, if they stated any part of it, they ought to have stated tile whole; but, instead of doing so, they had suppressed that part of it in which the learned judge had told them, that though he (Mr. P.) had expressed much surprise, he had expressed no censure at their finding; and that in what had been communicated to them, he had been most shamefully represented. The language Which he had used before the petty jury at the trial, clearly proved that point; for in the speech to which he had before alluded, he had used the following expressions:—"In the proceeding which I have thought it my duty to institute, though I have been governed by my strong impression that public justice has not been effected, I do not involve in this conclusion any imputation on the sheriff, who returned the grand jury; still less on the grand jury themselves, who have acted on their oaths in throwing out those bills. For the purposes of the present trial, whatever opinions I may entertain on that subject, I have no right to advert to them. The sheriff who returned that grand jury is not on his trial, and it would be gross injustice to arraign his conduct when he cannot defend it. The grand jury are not on their trials, and it would be injustice equally gross to make a charge against them, where they can have no opportunity of vindicating themselves: a time may come, and an occasion may arise, in which these considerations may be proper and necessary; and most certainly I will not, in that event, be found wanting in the discharge of any duty, however painful, which may devolve on me. But, in the meantime, and with reference to the present proceeding, I wish distinctly to be understood as disclaiming all imputations upon either. I am ready to suppose, for the purposes of this trial, that if the parties and the cause were the exact reverse of what they now are; that if it had been the pleasure of the government to direct, that the statue of king William should be dressed on the 4th of November, and a body of Roman Catholics, feeling themselves insulted, had risen against the law and the magistracy, and had flung a bottle or other missile at the lord-lieutenant's head, and these facts had been before the grand jury, they would have ignored the bills; as, so help me God, I would, under the same circumstances, had I remained the king's attorney-general, have filed my information ex officio. I claim only for myself equal credit for the purity of my motives, and the fair discharge of my sworn duty." Under such circumstances, he begged to ask hon. members, whether they thought him open to the imputation of using the license which his situation gave him to censure a jury for acting upon improper motives?—There was another topic on which he wished to make an observation. In exercising his discretion, with respect to the filing of the ex officio informations after the bills had been thrown out, he must confess that the conduct of the grand jury had formed one of the principal ingredients. But, when he stated that it was his intention to file those informations, he felt that he should not be justified in stating that their conduct had had any influence upon his determination, because they were in a situation to defend themselves against such a charge. But now, when this grand jury came forward with a charge against him, which rendered it necessary for him to examine and discuss their conduct, he must animadvert upon it, not so much with a view of attacking them, as of defending himself against an unjust accusation. He was not to remain unarmed and undefended, when they were using every effort to hurt and to injure him: his lips were not to be closed, when they were uttering all kinds of charges and accusations against him. Whatever doubt he had entertained before, regarding the line of conduct which he should pursue, was entirely dissipated by the petition which had just been presented. He had no hesitation in now declaring to the country and the world, that it was the conduct of the grand jury, along with some facts respecting them which had come to his knowledge, that had induced him to file the informations complained of. What those facts were he had not yet stated: he would not state them at that moment, nor indeed at any time; unless an opportunity should be granted him of having them fully verified. He could not help saying, that all along, and even at the present moment, he had been most unfairly dealt with by the grand jury. Instead of bringing forward a charge against him in specific terms, or in such a manner as would have enabled him to meet it directly, and instead of intrusting their petition to a gentleman who was acquainted with all the facts of the case, they had put it into the hands of an hon. and learned friend of his, who knew nothing of the matter, but who, in pursuance of his duty, had presented it to the House, and had presented it in a very proper and guarded manner. If redress were their object, why did not they complain of some specific wrong? Why did not they intrust their petition to some gentleman who could have stated the injury they had suffered, and have pointed out the satisfaction which they wished to receive? He well knew that the petitioners did not seek for redress in presenting this petition: their object was to lay it on the table of the house as a makeweight to the charges which the hon. member for Armagh had already brought against him. They knew that he must either remain silent under the allegations which the petition contained, which would be equivalent to a confession of their truth, or anticipate the defence which he should have to make on Tuesday next, which would be an incalculable advantage to the accusing party. In such a situation, he had determined to state his opinion boldly at once regarding the grand jury; and, if they thought themselves unfairly treated by it, they ought to recollect, that he had not volunteered the statement, but had been compelled to make it by the gross attack which they had first of all made upon him.—The right hon. gentleman then sat down, but immediately rose again, to describe the technicality which had rendered it impossible for him to follow up the finding of the grand jury upon the second indictment presented to them. That indictment contained two counts; the first was for a riot and assault on the person of the lord lieutenant, which would have enabled them to have found the riot, and negatived the assault, and vice versa; and the second was for a riot generally. In the first count, it was charged that the defendants, cum multis aliis, had committed the riot and assault; and in the second it was charged, that they had committed it with each other, leaving out the cum multis aliis. It was on this second count that the grand jury had found the defendants guilty; but as they had not found them guilty cum multis aliis, and as two persons could not in law be guilty of a riot, their finding prevented any future proceedings from taking place.

The petition was laid upon the table, and ordered to be printed.