Sir F. Burdett
said, he rose in pursuance of the notice which he had given of a motion growing out of the discussion of a question of a former evening relative to the late trials in Dublin. It was a subject which nothing but a sense of imperative duty could induce him to undertake. All who heard him must have witnessed, on various occasions, how unpleasant and even dangerous it was, to touch upon any of the circumstances connected with the misfortunes of Ireland. That country was in such a state of peculiar difficulty, that no question really affecting its interest could be discussed without giving rise to irritated feeling; but at the same time that it was painful to witness this, it was also the duty of the House to find out some alleviation for the evils of that country, and to ameliorate its condition, seeing that that condition was so intimately interwoven with the welfare and happiness of the empire. It was time to put an end to a state, which was that of a smothered civil war continually breaking out into acts of mutual hostility. If he believed that the bringing under the consideration of the House any of the transactions of party in Ireland would, instead of palliating, tend to irritate still further the feelings of the country, he should be the last person who would not be desirous to draw the veil of oblivion over every past event in the sister kingdom. But he looked upon it as childish, idle and vain, to be apprehensive of discussing Irish questions from the fear of 1150 increasing party exasperation. It was like the dread of a superstitious person, who would not whistle in the storm for fear of increasing the wind. No one could doubt that events had taken place, from which had arisen the necessity of a full and free inquiry into the state of that unhappy country. When the subject with which his motion was connected was last under the discussion of the House, the hon. member for Armagh—who had introduced it with an eloquence which gave so much gratification to the House, and so much gratification to the House, and which he hoped would produce a beneficial effect to his country—had embraced a variety of topics, which he did not propose to touch upon. He wished not to speak the language of party, or to deal out any measure of partiality on one side or the other. He knew the issue was regarded in the light of a trial between the contending parties, at the head of which were two high official persons—the attorney-general for Ireland and the high sheriff; the former of whom was entrusted with a power, which, however, he considered it oppressive and unconstitutional—he meant that of filing ex officio informations—formed no subject for their present consideration. With that authority, which allowed the attorney-general to put any man on his trial on his own bare suggestion, he had now nothing to do. But holding that high office, the learned gentleman had thought necessary to make a grave and serious charge against an Officer, scarcely less intrusted with the care of the public welfare than himself. He thought, therefore, that this was a case in which the House was imperatively called upon to exercise those great inquisitorial functions which belonged to it, for the safety of the constitution and the protection of the liberty of the subject. He thought, too, that they could not, upon these grounds, refuse to accede to the motion with which he intended to conclude his address. The more he had considered this subject, the more gratified he was that he had not been called upon to give a distinct vote when the subject was last before the House. His first impression had been one of decided hostility to the attorney-general, against whom a heavy charge had been made; that of having put a man on his trial by virtue of an ex officio information, after an indictment preferred against him for the same offence had been thrown out by a grand jury. This had appeared at first to be a case of gross and 1151 unexampled oppression: but after hearing the statement of the right hon. gentleman, he felt that if ever a case had occurred in which the exercise of that power could be justified, this was the case. So far was he now from thinking, that this was an act of oppression on the part of the attorney-general, that he was of opinion he could not have pursued a more favourable mode towards the parties accused, than by first preferring an indictment before the grand jury, and, when he found that the ordinary courses of justice were obstructed, resorting to his ex officio information. He wished most sincerely that every other attorney-general would follow the example, and would not presume to file an information until after a grand jury had refused to find a bill; for if it were to be supposed that an attorney-general had been actuated by levity or malice, in filing an ex officio information after the rejection of a grand jury, the defendant would be greatly protected by this previous negation of the charge.—The hon. baronet then proceeded to examine the opinions of the writers who had treated of ex officio informations, and, inferring from them that they were generally unconstitutional, repeated, that this was perhaps the only case which had fallen within his observation in which their exercise was justifiable. The statements which had been made against the attorney-general had met with so decided a contradiction, that it would have been impossible for him (sir F. B.) to have concurred in a vote of censure against him. An hon. gentleman opposite wished a course to be adopted, by which neither a triumph nor the appearance of a triumph should be given to any of the parties into which Ireland was unhappily divided. Now, that course appeared to him to be the most mischievous that could be well imagined. To follow it would be to lose sight of that strict justice which the House was called upon to do between the right hon. gentleman and the grand jury. That hon. gentleman had seemed to consider it in the light of a contest between the Orange party and the Catholics of Ireland. If he (sir F. B.) had thought so, he should have been very unwilling to give a triumph to a minority of about half a million, and to have visited with discontent and despair, the great majority consisting of six millions of the people. But he must say that, with respect to the charge made against the right hon. gen- 1152 tleman, his own opinion of it had diminished to a small point before the speech of the hon. member for Armagh was concluded, when he had given up the point of the legality of his conduct, and only insisted upon his want of discretion. Upon that point he was not required to give an opinion. The hon. member for Armagh had asked, what was there, that was right to be done on one side of the channel, and not right to be done on the other? He would tell him, that impartial Englishmen, who looked to the customs and habits of their own country only, would find it impossible to form a fair opinion on a question like that, when they knew the extraordinary state of that country. There must be a general impression on the minds of Englishmen that there was no impartial justice in Ireland for the great bulk of the Roman Catholic population. That was his own impression; though he would not allow it to influence his consideration of questions in that House. But, when he saw the situation of the right hon. gentleman, endeavouring to reduce a party to the government of law, that had long domineered over the people, and checked and controlled the due course of justice—when he saw the strange anomaly of a lord-lieutenant in Ireland, willing and desirous to protect the whole people—when he saw the first law officer of the Crown anxious to secure the multitude against the vexations of organised and long-confirmed oppression, and trying the strength of the law, against the strength of a faction; when he saw this and took into view all the extraordinary circumstances of the situation of that country, he felt he should be culpable had he agreed to a vote which would have condemned a system intended to lead to equal justice and political amelioration. The right hon. and learned gentleman having in his own defence stated what affected the character of other persons, whose other persons were unquestionably entitled to have the opportunity of answering the charges brought against them. At the same time, he did not think that the right hon. gentleman had been well treated by his own friends. For if they really had confidence in him, they should not have consented to suspend the opinion of parliament on his conduct; they should not have consented to leave him in a state of ambiguity—a state neither just not satisfactory. He had not the slightest idea on what ground it was possible his motion for an inquiry could 1153 be opposed. He could not conceive what argument could be adduced against it. He was quite sure, that the learned gentleman himself would not oppose it. He was also convinced, that the friends of the learned gentleman would give it their support. Under these circumstances, he was, therefore, at a loss to imagine by whom the motion could be resisted. He understood, however, that an amendment would be moved, ordering the prosecution of the sheriff. He did not know whether he was justified in taking up the time of the House by touching on these points, and directing the attention of gentlemen to the motives and feelings of those who were likely to oppose his motion. He should, therefore, refrain from introducing topics which were likely to irritate either party; because he wished the House, for once, to come to a cool and dispassionate vote, perfectly free from party feeling and party prejudice. He must, however, say, that if such an amendment as that to which he had alluded were proposed, he could not accede to it; because it would involve a principle not strictly just and impartial. In the first place, it would be extremely improper to give the authority and weight of that House to an accusation of which they were not at present in a condition to judge. It would be extremely unfair for the House, so circumstanced, to take any step which might convey an opinion either on the one side or on the other. By the proceeding of the other night, the House seemed to agree, that an exact equilibrium should be preserved between the parties; and that at that time no further proceeding should take place. At the same time it was quite clear, that it was impossible the matter could be allowed to rest where it was. It would be extremely unjust, however, on the part of the House, to order a prosecution to be instituted against the sheriff, until they were in possession of the whole of the case, and it was with a view to put them in possession of the whole of the case that he should now move, "that the statement made by the attorney-general of Ireland, in his place, on the 15th day of April, respecting the proceedings on the trials of Forbes, Graham, and Handwich, renders it incumbent on this House to institute the strictest examination into the Conduct of the Sheriff of the city of Dublin on that occasion."
said, he meant to trouble the House with a few observations on 1154 what had fallen from the hon. baronet. He begged leave, in the first instance, to assure him, that he did not mean to offer any opposition to the motion. He was, indeed, the last person in the House from whom such an opposition could be expected. He thought, however, that his case did not stand on the ground on which the hon. baronet had thought fit to place it. He had, it was true, in the discharge of his duty, exercised a power which appeared to give offence to some persons; and the question ultimately resolved itself into this—whether he had exercised a sound discretion in the application of that power? The opinion of the House was called for on this point—whether he had used his discretion unduly, oppressively, or improperly? It was not, whether, under the same circumstances, he should again exercise the same power—or whether, in the peculiar situation of Ireland, it was necessary to resort to his legal prerogative? These were not the disputed points. The question was—whether he had exercised the power entrusted to him with a fair and honest intention? It was not because others would, perhaps, under similar circumstances, have acted differently, that he was to be censured. Different individuals would take different views of the expediency or inexpediency of exercising a discretionary power; but still their intentions might be equally pure and upright. The situation of a public functionary would be most lamentable, if, because he differed from others in the use of a discretionary power, he was, therefore, to become the object of censure, no matter how just and proper his motives were. In order to make a public functionary the fair object of censure, the House must arrive at this conclusion—that he had acted on some sinister principle. If what he had done, and which he considered neither unconstitutional nor illegal, came to be inquired into, no censure could be directed against him, unless the House was of opinion that he had acted from a love of oppression, from a malicious intention, or from some other base and unworthy motive. If they could not arrive at this opinion, he was discharged from all matter of accusation. He thanked the hon. baronet for the fair and candid mode in which he had brought forward this proposition; and he would do him the justice to say, that on no occasion did he ever forsake that gentlemanly urbanity of 1155 manners which he had displayed that night. Under the circumstances of the case, he (Mr. P.) had, on a former evening, stated the reasons which induced him to act as he had done. He, however, knew, that the statement which he had then made for the purpose of absolving him-self, must of necessity draw after it this inquiry. But he would ask whether this brought the question to the point—whether, in exercising his legal power, he was, or was not censurable? In his opinion it clearly did not. If he brought forward charges against individuals, he might on that account, lay himself open to the censure of the House; but that censure could have nothing to do with his conduct in the exercise of his legal prerogative. Having stated the general grounds on which he conceived his conduct to have been justifiable, he next stated the particular grounds on which, as it appeared to him, it became peculiarly necessary that he should adopt the discretion which had given rise to so much animadversion. In the course of that statement, he certainly had advanced matter which involved a very high censure on an individual holding a situation of great importance. What he asked of the House to give him credit for on that occasion was, not that the charge was exactly as he had stated it—not that he knew it of his own knowledge to be a perfect truth—but that it was conveyed to his mind in such a manner, as fully impressed him with an idea of its truth. Now he would ask, if he were completely satisfied in his own mind that those facts were true, was he not justified in acting on that impression? It was a case of very great importance to the country—it was a case in which he felt that justice ought to be done as speedily as possible; and therefore he proceeded by the readiest mode. Was he, under all the circumstances, to forego any proceedings against the rioters, until he could procure affidavits which would enable him to institute a prosecution against the sheriff? If he had done so, he thought it would have been a gross violation of his duty. The only question, therefore, was—whether he had that reasonable conviction in his mind of the truth of those facts which would form a fair ground for adopting the proceedings to which he had resorted? He certainly felt that conviction; and therefore he contended, that the proposed inquiry was one in which he had no more 1156 interest than the hon. baronet, or any other person in that House; except that he should be sorry if, by any chance, it could be supposed that he brought a charge against a public officer lightly or unadvisedly. He meant not to allege any thing which could give rise to acrimonious feeling; but this he would say, that his suspicions with respect to the conduct of the sheriff were not removed, but were considerably strengthened, by what had since taken place. He had no hesitation in declaring, that he thought the conduct of the sheriff was a very proper object for prosecution. He deemed it right now to state, without meaning to interfere with any course which the House might think proper to pursue, that if the business were not taken out of his hands by the House, it was his intention to institute such a prosecution, for the purpose of arriving at the real justice of the case. He agreed with the hon. baronet that it would be an essential denial of justice, if the sheriff were not afforded an opportunity of entering on his defence. If the House proceeded with this inquiry, the case would, of course, be taken out of his hands. If, however, the House declined interfering, he would institute such a prosecution as the case called for.—Having said thus much, it would, perhaps, be expected that he should give some explanation to the House, as to his not having proceeded sooner. It might be asked, "Why did you not proceed against the sheriff before, if you considered him liable to prosecution?" He would, in answer to that question, state what must appear to every candid mind a full and sufficient reason. He had received the information with respect to the conduct of the sheriff from different quarters. As that information reached him, he communicated it to the lord lieutenant; and it was from time to time communicated to his majesty's government. To show, that the idea of a prosecution was no after thought, he had to observe, that he had stated to the government, that it would be a matter of grave and serious consideration, whether a prosecution should not be instituted against the sheriff for his conduct in empanelling the grand jury. From the first moment the information was given to him relative to the manner in which the sheriff had conducted himself, the impression was strong on his mind that the matter must be probed to the bottom. The trial of the rioters commenced on the 24th or 1157 25th of Jan., and certainly that was not the fit time for instituting a prosecution. Mr. Sheriff Thorpe was the person by whom the panel for the grand jury was returned. At his (Mr. P.'s) desire, he wished the two sheriffs to join in that panel, the thing being perfectly legal: he conceived that would have been the better way, as two of the traversers were related to Mr. Sheriff Thorpe. The fact, however, was, that the panel was signed only by Mr. Sheriff Thorpe, for though he showed it to his brother sheriff', no alteration was made in it. He, however, had hoped that the petty jury for the trial of the traversers would have been differently returned; and that thus a fair trial would take place. Therefore it was, that he did not think it necessary to stop the proceedings, for the purpose of prosecuting one of the sheriffs. Soon after his arrival in town, the hon. member for Armagh gave notice of a charge which he meant to bring against him in that House. He asked, whether he would have been justified if, when accusations were pending against himself, he had instituted a prosecution against the sheriff. When the hon. member for Armagh gave notice of his motion, he (Mr. P.) entreated that it might be brought forward immediately. He complained of having that charge suspended over his head for two months. Until five minutes before he stood up to defend himself, he did not know what the specific accusation against him would be. If, under these circumstances, he had instituted a proceeding against the sheriff, would it not have been said, that it was intended as a set off against the accusation levelled at himself? As regarded himself, he thought the question had been completely disposed of the other evening; as the proposition that he was not influenced by any undue motive in the exercise of his discretion was acquiesced in. As regarded the sheriff; he repeated, that if the House did not take the matter out of his hands, he would institute a prosecution. He must do it also by the unfavourite mode of an ex-officio information; for as to applying to a grand jury of the county of Dublin to find a bill against the high sheriff, that would be utterly useless. He should file an ex-officio information, and he should next apply to the court of King's-bench, that the case might be tried at the bar of that court, but that the venue might be directed to come from another county. The sheriff would then have an 1158 opportunity, by the testimony of witnesses, and by other legal means, to make his defence. If, on the other hand, the House resolved to enter on an immediate inquiry, to that course he could not possibly entertain the slightest objection. But as in the event of the institution of a prosecution, he should be called upon to prosecute, it was not his intention to give his vote either for or against the motion. He, however, perfectly agreed with the hon. baronet, that it would be rank injustice if the sheriff, who wished to vindicate his character, were shut out from a fair opportunity of entering on that vindication.
§ Mr. Denman
was of opinion, that the defence entered into on a former occasion by the learned gentleman did not excuse him, even if it were made out in evidence; and, if it were not substantiated by evidence, it really amounted to nothing. He thought the best way of showing the upright conduct of the learned gentleman would be, not by dragging forward another public functionary, but by entering on his own justification, when the question was fairly introduced. He thought the motion of the hon. member for Armagh had been very properly worded, because the offence complained of was, that recourse had been had to an ex-officio information, after the law officer of the Crown had taken his chance with a grand jury. He could not but look with astonishment at the circumstances out of which the proceedings arose. How a play-house riot, even though it might have been previously concerted, could be converted into high treason, and how under such a charge individuals could be kept in prison for several days, was what he could not understand.
§ Mr. Denman
said, that undoubtedly the parties were sent to prison and confined there for ten days, because it was stated that there offence was an attempt to assassinate the lord-lieutenant, the king's deputy in Ireland; though that charge was subsequently withdrawn, and neither the grand nor the petty jury was called on to say, whether a plan had been laid to assassinate the lord-lieutenant. He, if placed in the situation of a grand juror, would have treated the charge with contempt. Looking to the information which he now had on the subject, he would have thrown out the bill. He had read the trial 1159 with great attention, and, on his oath, he would state, that he believed there was no intention to molest the lord-lieutenant, before the parties went to the play-house. That there was a concerted plan to riot he believed; but, in his opinion, the throwing of the bottle was the act of a drunken individual. That it was aimed at the head of the lord-lieutenant was negatived by every witness. As to the flinging of the rattle, it was the act of a journeyman shoemaker, a boy of 18 years of age; and certainly it would have been more magnanimous in the Irish government to have overlooked the offence, rather than to have visited it with the severities of an ex-officio prosecution. He would not compare the conduct of the attorney-general in pursuing this course to that of Judge Jefferies, or of Mr. Justice Whitshed, who sent the jury back nine times, for the purpose of securing a verdict against the publisher of Dr Swift's Drapier's Letters; but certainly he was of opinion, that a public officer went greatly beyond his duty, when he threw reproach on a grand jury, and then turned round and declared, that he would use the power which was placed in his hands to contravene the decision of the jury. The learned gentleman must have known that there was a strong spirit of party in Ireland; and if he thought that it was unsafe for him to submit his case to the determination of a grand jury, that would have been a proper ground for the exercise of his power in filing an ex-officio information. But, when he had taken his chance, and his bill was ignored, it was not right to appeal from the grand jury to himself, and instead of resting satisfied with their decision, to resort to the prerogative. If the grand jury were worthy of reproach, it was not right that they should escape it; but it would have been more regular, if the charge against them had been reserved for some other occasion. He did not know at what period it had come to the learned gentleman's knowledge, that those gross mal-practices were committed by the grand jury of Dublin: but, if it were known, at the time when the proceedings against the rioters commenced, that Mr. Sheriff Thorpe prevented his brother sheriff from taking any part in striking the panel, that two of the traversers were his relations, that he declared the traversers had nothing to fear because he had struck an Orange panel, then the question was, why were not these offences 1160 marked out and punished? If these allegations were founded in fact, the story of the bottle and the rattle shrunk into complete insignificance; because the statement tended to prove, that the stream of justice was polluted at its very source. If it were so, the learned gentleman should have taken the earliest opportunity to vindicate the insulted laws of his country. Instead of filing informations against a few journeymen, who appeared to have been excited by one person in a higher rank of life, he should have selected a victim worthy of his indignation. He should have instantly brought the sheriff to justice. Instead of that, from January to April, no blame was thrown on the conduct of the sheriff, until the conduct of the learned gentleman happened to be arraigned. It was said by the learned gentleman, that a public functionary was not to be lightly dealt with. He agreed in that proposition. How the sheriff would apply it to his own case, he knew not; but certainly he would have a right to complain that he was hardly dealt with, if his conduct did not command that inquiry which he looked for and courted. The learned gentleman had argued, that unless it was shown that he acted from corrupt motives, he was not liable to censure. But, what the House were afraid of were, the evil consequences which might flow from a bad precedent. If they saw an invidious power badly exercised, that was sufficient to warrant their interference. The attack which the leaned gentleman had made on another party was infinitely more serious than that which had been made on himself. It had created very great disappointment, that a motion which had been levelled at the attorney-general fur Ireland should be met by the other orders of the day. Either party who acquiesced in that amendment, acquiesced in his own shame. He was sorry that this had been treated as a party question. It was very improper, when the matter was brought before a jury of the country, to treat the persons implicated in the offence as part of "a gang." They had been spoken of as a mere branch, from the great Orange society in Ireland; than which nothing, so far as the evidence went, could be more unfounded. He would not touch on the merits of those people, let them be called by whatever name gentlemen pleased. He viewed them only as subjects of the state. He might be told that they were enemies to liberty; but he 1161 was glad to find them resorting to the laws of the country, to defend themselves against an oppressive power. Were they not English subjects? And if so, had they been treated according to the principles of the English constitution? It was not dealing fairly with them to place them on their trial as Orangemen. It was stated, that one of them was a great Orange agent, and was with difficulty prevented, by an armed force, from dressing the statue of king William. But there was no proof given of that fact. Again, it was said, that the conspiracy was got up at the Orange-lodge where those parties met. Now, it did not appear that they had assembled in an Orange society: but the fact was assumed, because they met at a house where an Orange-lodge was in the habit of assembling.—With respect to the proposed inquiry into the conduct of the sheriff; he must say, that if one officer charged another with improper conduct, he thought the proceedings of both ought to be inquired into. It was one of the great grievances of Ireland, that the system of English law had never been fairly tried there. The manner in which juries were empanelled was peculiarly objectionable. He could not forget the unhappy affair at Manchester, where some hundreds of people, who were peaceably assembled, and for a peaceable purpose, were trampled down by an armed force. It was admitted, that hundreds were destroyed on that occasion; but the House were called on not to notice that business, because, forsooth, the grand jury of Lancashire had thrown out bills connected with it. The duty of the House was however, to investigate such abuses. When the comparative merits of attorney-generals and grand juries were talked of, he would freely say, that he preferred the decision of the worst possible grand jury to the best attorney-general. Such a jury might possibly be impartial; but there was almost an impossibility that an attorney-general could be so in particular cases; he being ex necessitate a party man. The charge here was of immense importance; it was not one for attorney-generals, or grand juries, or judges to try; but for the great tribunal of parliament itself. Let them show the people of Ireland that they had a paternal legislature to protect them, which they were entitled to enjoy as long as they showed themselves worthy of its enjoyment.
was of opinion, that the 1162 attorney-general for. Ireland had shown a leaning in the prosecution against one party, which it would have been well for the calm purposes of justice if he had avoided. But he did not think this to be that sort of case which called for the exercise of the inquisitorial powers of parliament.
§ Lord Milton
thought, that the attorney-general for Ireland laboured under some misapprehension respecting the effect of the former debate. That learned gentleman now assumed, that he had obtained an acquittal, by the House passing to the other orders of the day; as if there was an inseparable identity between the merits of his case, and the demerits of the high sheriff. The impression made upon the House by the speech of the attorney-general had an effect unfavourable to the sheriff and the jury, but favourable to himself; but the learned gentleman should not conclude, that although the House might look unfavourably on the sheriff, they were at all satisfied with the conduct of the attorney-general. The learned gentleman had talked of corruption. No corruption whatever was imputed to him. There was indeed a charge of indiscreet exercise of authority; and had the motion of the member for Armagh been confined to that charge, he would have voted for it. The learned gentleman would now get out of the motion of the hon. baronet, by telling the House somewhat tardily, that he intended to prosecute the sheriff of Dublin. But instead of complaining of the member for Armagh for hanging the charge over his head for two months, be ought to be grateful to him for having given him an excuse for not sooner prosecuting the sheriff. If there were grounds for the transactions imputed to the sheriff of Dublin, there might be grounds for similar transactions throughout Ireland. At the bar of that House, and no where else, ought such an inquiry to be made; not so much with a view of punishing this identical sheriff, if guilty, as of holding out a warning to the sheriffs of Ireland generally.
§ Mr. Brownlow
said, he persevered in his opinion, that the conduct of the attorney-general for Ireland had been harsh, unprecedented, and unconstitutional. He hoped, that upon the present occasion there would be one unanimous feeling of the irresistible necessity of an inquiry, at the bar of that House, into the conduct of the high sheriff; in order that, should he be found as guilty as he believed him in- 1163 nocent, he should receive that punishment which such misconduct deserved, and that they might have it in their power to eradicate, root and branch, the whole system which had fostered such a monstrous abuse of power. The attorney-general had informed the House, that he was obliged to have recourse to a harsh and injurious exercise of the prerogative, in consequence of the conduct of the sheriff, who had conspired to prevent the ends of justice from being attained. The learned gentleman had said in his place, that the jury were packed. Now, he was informed, that nineteen out of the twenty-three grand jurors who ignored the bill of indictment, usually sat as grand jurors; that their names appeared in every panel for ten years back; and that during that time they had frequently received the thanks of the judges for their upright and impartial conduct. It had been stated by the attorney-general, that one of the traversers was the first cousin of the sheriff. Now, he was no more connected with the sheriff than he was with the learned gentleman himself. The attorney-general had informed the House, that a Mr. Poole applied to the sheriff to be put on a jury; that the sheriff had consented, but that, subsequently, Mr. Poole having expressed his inclination to carry into effect the conciliatory views of the king's letter, he was not put on the jury. The high sheriff had informed him (Mr. B.), that three weeks before the jury was impanelled, Mr. Poole begged to be put on the grand jury. The sheriff said, he would submit his name to his colleague. In the mean time, a letter was addressed to the sheriffs by the Crown solicitors, by the orders of the attorney-general, requesting that both the sheriffs should join in making out the panel. Mr. Poole renewed his application to be put on the grand jury, when the sheriffs informed him that they felt the necessity of being cautious, and that he had disqualified himself by the applications he had made. Mr. Sheriff Thorpe asked what reason he had for pressing the application? "I'll tell you," said Mr. Poole; "the case of a Mr. O'Mara is to come before the grand jury. I am acquainted with facts, connected with that case, which are not known to the rest of the jury. I wish to be on the grand jury that justice may be done to Mr. O'Mara. Put me on the jury, and I'll give you my word not to divide on the question of the play- 1164 house riots." The sheriff replied, that nothing (after such a declaration) would induce him to put Mr. Poole on the jury. With respect to the conduct of the grand jury, there was no notice of motion respecting them, but he was authorized to say, that every thing the attorney-general had said with respect to them was incorrect and unfounded. The attorney-general had been misled and misinformed by some calumniator. The attorney-general had said, that a witness of the name of Moran had been produced before the grand jury, and that but two questions had been put to him when he was shown to the door; the jury authorized him (Mr. B.) to state, that the witness was asked a greater number of questions in the grand jury room than he was asked on the trial.—Now, he would state to the House the nature of the evidence, as far as rumour went, given on the other side. It was said, that the attorney-general had received information, that a person, seated in the pit on the night of the riot, could give material information relative to the throwing of the murderous bottle, and which, by the by, was stated to have fallen in the middle of the orchestra. That bottle, if thrown at all, might, for aught which appeared to the contrary, have been directed as much against lord Combermere as against the lord-lieutenant. The man who so offered his evidence, said, on his examination, that on the night in question he had seen a person in the pit, drinking a bottle of porter (not spirits), and after drinking the contents of the bottle, he chucked it over the stage lights. "Very well," said the attorney-general, and the witness was immediately shown to the door. He might go on multiplying similar statements, for the purpose of showing how many falsities were uttered upon the one side as well as the other; but the instance which he had adduced was sufficient to show bow little belief was to be attached to such statements on either side. Perhaps it would surprise the House to hear, that a person now dead had made affidavit to a person now living, and who could be produced, that Graham was not the man who threw the bottle, for that he himself had thrown it, and that on his death-bed he felt it necessary to declare that he had done so. The hon. member, in conclusion, alluded to the oppressive effect which an ex-officio information must necessarily have upon the interests of Mr. Thorpe, who, though 1165 acquitted, must bear the expense, as well as the disgrace, of such a proceeding.
§ Mr. Goulburn
said, that if circumstances called for inquiry, he certainly should prefer the course proposed by his learned friend the attorney-general to that recommended by the hon. baronet. The House must perceive, that the question as it now stood, let it take what course it would, no longer involved the conduct of his learned friend or the Irish government. The question to be considered by the House was—not whether any suspicion could attach to the conduct of the attorney-general—not whether he had committed any error in judgment—but whether, upon the whole of the facts, there was prima facie ground to justify the course which his right hon. friend had pursued, whether the facts were sufficiently strong and well authenticated to make it his duty to pursue such a line of conduct? His hon. friend, who spoke last, had himself stated, that nothing more could be attributed to his right hon. friend than an indiscreet and unwise exercise of the power vested in him by law. Upon the late discussion he (Mr. G.) had agreed to accept the course proposed by his hon. friend (Mr. Bankes), not because that course was most satisfactory to the attorney-general or himself, but because such a course was likely to be most conciliatory to all the parties concerned. The real question for the consideration of the House was, whether the inquiry should be by examination at the bar, or whether it should be proceeded in in the manner proposed by the attorney-general? He was determined to vote against the motion of the hon. baronet, because the course which be proposed was not likely to do justice to the character of the sheriff; or elicit the whole facts of the case. Supposing the sheriff to be called to the bar, what could he offer in answer to depositions upon oath, except the statements of persons who could not be sworn? This, instead of serving the sheriff; would be productive of injury to his case. In his opinion, the course proposed by the attorney-general was by far the more preferable one. But there was a general principle which opposed still more strongly the course proposed by the hon. baronet. He meant the impolicy of that House allowing its dignity and high functions to be mixed up with questions which might and ought to be decided by inferior tribunals. He was aware that gentlemen on the other 1166 side might urge it as argument that the conduct of the sheriffs in this instance was only a specimen of what was to be expected from the Irish sheriffs generally, This he begged leave most positively to deny, The sheriffs of Ireland were, as a body, totally undeserving of such an imputation. The right hon. gentleman proceeded to argue, that it would be most unwise to institute an inquiry into the conduct of the high sheriff at the bar of the House, because, in that case, mere statements would be set up in opposition to evidence given upon oath. Such a proceeding, too, would be calculated to keep alive in Ireland those angry feelings which it was the wish of all prudent men to see extinguished. The statements made at the bar would be doled out to the public day by day—the proceedings would be continued from week to week—, and finally, the House would arrive at no result which could satisfy the minds of any class of men. For these reasons, he should vote against the motion.
said, that if this had been a case of slight personal delinquency on the part of the sheriff, he should not wish the House to interfere in it; but, from the whole tenor of the hon. baronet's speech, he was confirmed in the idea, that public justice demanded this investigation. He thought, moreover, that such an investigation was not likely to be at all successful in its object if carried on in Ireland; and that even an ex-officio information was not competent to attain it. He called, therefore, on that House, as they loved justice and detested calumny (and here he begged to say, that he was far indeed from meaning to impute to the right hon. gentleman any thing like a designed calumny) he called upon them to bring the parties on their floor. He could by no means agree with the right hon. gentleman, that his conduct was now out of all question, for it was not the law, but the facts of the case, upon which that question must turn. The only step, indeed, that the right hon. gentleman could take, was an ex-officio information; and that could not now be effectual in that country.
§ Sir J. Newport
said, that, if the House showed an unwillingness to entertain this motion the dissentions in Ireland would be increased instead of being diminished Certain members seemed to think, that the course proposed by the hon. baronet was injudicious. If such were the opinion, 1167 let the House at once abdicate its most important duty—let it renounce that which it ought to consider one of its most sacred obligations, the guardianship of the administration of justice. He was most anxious for the investigation of this question in this country, for another reason. In England the strength of public opinion was great. In Ireland there was no public. That country was divided into parties; but there was no public. If the question was investigated here, there would be nothing to hear from mutual animosity and conflicting passions. For this reason, he would support the motion. He could not see how it could be refused. The parties were on the spot and sought the inquiry. Two parties only had been mentioned in these transactions—the government, and the party which bearded that government. There was, however, a third party, which required justice from the House; namely, the people of Ireland.
§ Mr. Spring Rice
observed, that the right hon. secretary for Ireland had said, that the discussion of the other night had entirely disposed of the whole question before the House. To that proposition he must give his unqualified dissent. He would not agree to any new rule for the government of affairs in Ireland, unless it could be shown that those affairs required a different rule from that which obtained in this country. He did think, however, that if such a state of things were ever to exist in England as had recently existed in Ireland, the king's attorney-general would have been justified in adopting the same proceedings as the learned gentleman had adopted. The present question did not regard any, set of men, forming, the government of Ireland; but whether the grand jury or sheriff of Dublin possessed the power to intercept or pervert the administration of justice? Last session he happened to be placed in the chair of a committee upon the local taxation of Dublin. On that occasion it appeared, that the taxation of Dublin was principally managed through the agency of the grand jury; and in the report of that committee, it was expressly stated, that the election of the grand jury appeared to be always made from the corporation; while persons who were not members of that body, whatever other qualifications they might possess, were excluded from serving as grand jurors. The same thing was asserted in a memo- 1168 rial laid before the lord-lieutenant in 1819, and the same inference was drawn; namely, that this sort of limitation was obviously calculated to defeat the ends of justice. The House would desert their duty to the country, if, from any circumstances of personal inconvenience, they should shrink from the proposed inquiry.
Mr. Secretary Peel
said, it seemed to be agreed upon all sides, that, in justice to the high sheriff and to all the parties concerned, some inquiry should take place. The question, then, was, what was the best mode of making such inquiry? He conjured the House to confine itself, in the consideration of this subject, to the principles which had ever guided them on such occasions—principles which in this instance would, he trusted, be separated from all party feelings. He appealed to any man who heard him, whether the arguments adduced for inquiry at the bar of the House were sufficient to show that this case was an exception from the general rule? The hon. member for Limerick had said, that the conduct of the grand jury ought to be inquired into. Surely the hon. member must have forgotten the terms of the motion. In that the conduct of the sheriff only was included. If they were to go farther, let it be so stated; but if they were not, let them confine themselves to the question before them. But, supposing the conduct of the grand jury was to be examined, how were they to proceed? Were they to receive the evidence of those whom the grand jury had examined, or of those who stated that the grand jury had refused to examine them? If they did this, how were they to put the grand jury on their defence? How could they call upon them to disclose that which they were bound by oath to keep secret? This was not a case in which the political circumstances of Ireland could be taken into consideration. The noble member for Yorkshire had argued, that this was a case where the House was bound to inquire not only into the conduct of the sheriff of Dublin, but into the conduct of sheriffs generally. Now, this was opposed by the hon. member for Limerick, who stated, that the case was widely different from that of other sheriffs: and this was a reason which would induce him to send the case for inquiry, to a court of justice, rather than to the bar of that House. From the loose statements made upon this question, most of 1169 which were contradicted as soon as made, the bar of the House, where parties could not be examined upon oath, was not so fit a place for inquiry into the circumstances as a court of justice, where an oath must be administered. This was not a case where there was a denial of justice, for the attorney-general for Ireland was ready to prosecute, if necessary. By instituting a process at their bar, the House would be adopting that course, for which some hon. members were so ready to blame the attorney-general; namely, taking the case out of the regular and ordinary administration of the law. There were, in the recollection of the House, instances where it had interfered. He alluded particularly to that of an hon. member (Mr. W. Quin), where the delay had been not merely from day to day, but from week to week. He did not say that the time of the House should not be so occupied, if occasion required; but he did think that if this inquiry were gone into at their bar, it would be found to extend to a most inconvenient length. Besides, in the case of a conviction on the part of the House, that some ulterior proceedings were called for, they must in the end send the matter to a court of justice; and that would be sending the sheriff to trial with a strong prejudice against him, arising from the decision of the House. It would, therefore, be much better to let the matter take its course before the ordinary tribunals of the country.
§ Mr. Tierney
said, that if the question was merely whether the sheriff should be prosecuted in a court of law, or examined at the bar of that House, he would agree with the right hon. gentleman in the conclusion he had come to. But this was a greater and more important question. It was a question important to that part of the empire which had been incorporated with England by the Union. He would grant that the sheriff could not be formally tried at their bar, as he might be in a court of law; but he would contend, that the circumstances of this case were such as the House had a right to inquire into. The House, as the grand inquest of the nation, had assuredly a right to enter upon such inquiries as that now proposed. Let the House go back a few months into the history of this transaction. The blame arose out of what he would call the meritorious conduct of the attorney-general for Ireland; but, and he said it with great respect, it arose also out 1170 of a government of compromise; for while one half the cabinet was encouraging the cry of "No popery," the other half was saying, "We will prosecute you if you do." Well, after this sort of feeling in the cabinet was known, the lord-lieutenant went to the theatre; and there a riot, which all must lament, took place. Then the attorney-general appeared to prosecute the parties; first, for a conspiracy to kill and murder the king's lieutenant: that failing, he had recourse to an indictment for a conspiracy to riot; that failing, he tried an ex-officio information; and, that failing, the learned gentleman was himself put upon his trial. [Hear, hear.] It could not be said, that in this latter case the conduct of the sheriff was tried. That was postponed; but the trial of the one and the accusation of the other were so mixed up, that they could not tell which was prosecutor or which defendant. The learned gentleman, in his defence, had inculpated the sheriff. Were they now to be told that, after such inculpation, and after the parties accused had petitioned for a fair hearing, that that should be denied, and that the only answer which should be given to them was, that they were to be prosecuted at law by the very party whom they accused of calumniating them? This was an odd way of conciliating parties. It might be understood in Ireland; but certainly it was contrary to the notions of conciliation which prevailed in this country. It was mother effect of that government of compromise to which he had before alluded. See what the situation of the House and of the learned gentleman would be, if he were directed to prosecute those parties in Ireland. With what countenance could he, their accuser here, appear officially against them in Ireland. Such a prosecution could not, in fairness, be carried on by the attorney-general. The office which he held would be degraded by it. But it was asked, would you put the grand jury on their trial by this motion? He answer ed—let the inquiry extend to all, and let he example tend to keep all corporate sheriffs in proper order. After the statement of the attorney-general, it would be injustice to all parties if inquiry were withheld. The refusal of the inquiry would tend still further to irritate the higher orders, and goad the lower to madness. Let the inquiry, then, go on at the bar of that House, and not by a prosecution by the attorney-general; for 1171 that would not be doing justice to the accused, nor would it satisfy the country.
Mr. Secretary Canning
said, it had been urged, that if the House consented to go into an inquiry at their bar, it would draw all the topics of the agitated state of Ireland—all its practical grievances, and a consideration of the mode of redress—into, discussion. He little doubted that it would take, a wider range than the motion described. But surely that was not a reason why they should adopt it, if the object was, to come at the facts of the case before them. It was plain that the speeches of honourable members on the other side must be much narrowed to meet the object of the motion, or the motion must be much enlarged to meet their speeches. For his own part, in occupying the attention of the House for a short time, he thought he should do well to follow the speech of the hon. mover It seldom happened that he could agree in the general topics of the hon. baronet's speeches; but he had seldom heard one in the general topics of which he more cordially agreed than that which the hon. baronet had that night delivered. He fully concurred with him, that in the whole transaction his right hon. and learned friend stood rectus in curia. He agreed with him in the opinion that his right hon. and learned friend stood acquitted, even before he came to that part of his statement which related to the sheriff; and that part certainly did not weaken the opinion which he had formed of his right hon. and learned friend's innocence. The vote of acquittal which the House had come to was a right one; but that acquittal did not necessarily infer the guilt of any other individual. It was not necessary for the acquittal of his right hon. friend that the examinations upon oath should turn out to be true; but it was necessary for the acquittal of the individual charged; and, therefore, it was necessary that the matter should be sent to a tribunal, where the evidence would be given under the most solemn sanction. The House was precluded from hearing sworn evidence. They would therefore go into the inquiry with affidavits sworn against the sheriff of Dublin, and that sworn testimony would be met by testimony unsworn. And yet they were called to go upon this course of inquiry as a measure of justice to the sheriff of Dublin! It was easy to see in which way the justice of the case could best be met. The 1172 proper officer of the Crown had told the House that he was ready to institute an inquiry. "The question, then before the House was, whether there should be a prosecution instituted by his learned friend, or an inquiry at the bar of that House? No person could say with truth, this prosecution was taken up on the sudden to answer a particular purpose. He could give his testimony to, the, contrary; for he knew that such was the intention of his learned friend, and that it was only delayed because he was himself in the situation of an accused person. If an inquiry at their bar were necessary for the justification of the sheriff of Dublin, he would readily consent to that inquiry; but there was another and an obvious course, free from all the inconveniences which were acknowledged to belong to an inquiry by that House, and by which the question of guilt or innocence could be ascertained with a degree of certainty which an inquiry at the bar of that House did not possess; such an inquiry must terminate in one of two ways. The sheriff might be acquitted of all blame, but then it must be taken with the circumstance that the evidence was un sworn; but if the testimony should substantiate the charge, then the individual must be sent to trial with the House as his prosecutor, and the prejudice resulting from the weight of their authority against him. Looking, therefore, either to expedience or justice, he thought the plain and open course of judicial investigation was that which was due to the public, the House, and the individual immediately concerned.
§ Mr. Brougham
said, that the chief objection urged against an inquiry at the bar of the House, was, the unfavourable effect which it might have on the future trial of the sheriff, if the House should think proper to direct a prosecution. But, was it not a little singular that the sheriff himself did not make such an objection; that, on the contrary, he should have petitioned for that very mode of inquiry? God forbid that justice should be violated in the person of any one—even in one of the Orange association! God forbid that, with the weight of the censure of that House hanging about his neck like a millstone, any man should be sent to take his trial! But, when the person himself came forward and entreated to be heard, was be to be told that he did not know his own case? This compromising government, however, had shut its ears against his 1173 petition. They had said that the general rule of the House was against inquiry, which was so troublesome a thing, that it would be better to rely on the attorney general and think no more of the grand inquest of the nation. He had not so read the constitution; nor would be consent to a doctrine which it was reserved for the third year of George the 4th to promulgate for the first time. Besides, it was to be remembered that the case of Mr. Wyndham Quin, which had been alluded to, was investigated by the House with success, and followed up by an enactment to prevent the repetition of the abuses there disclosed. And, what was the question that called for investigation now? Was it not an alarming matter, that there had been an attack on the purity of the administration of justice by the packing of a jury, and that that had been done by an officer of a corporation, and for the purpose of courting a party which was of great weight for its rank and wealth, and some of whom were even high in office? The administration of justice was said to have received a taint, through the misconduct of the sheriff of Dublin. And who made the charge? The first law officer of the Crown, in defence of himself, and to secure his own retreat. Was not this, then, he would ask, an extraordinary case, and coming strictly within the principle of the exception? He could not take the same view of the result of the inquiry a few nights ago into the conduct of the attorney-general for Ireland, which was taken by the right hon. gentleman who spoke last, though he acquitted him of any thing even bordering on a corrupt motive. The charges against him of unprecedented, unwise, and unconstitutional conduct, were of a sufficiently grave nature, and were felt so by the learned gentleman himself; but his friends, the government, applying to him the same over-measure of kindness which they now wanted to apply to the sheriff, and accusing him of bungling conduct in his own case, chose a line of their own, and said, "We won't convict you, for that would be dangerous to the peace of Ireland: but we can't acquit you, for that would be dangerous also; therefore, we will not give to innocence its just meed, but pass to the order of the day, because we will treat the attorney-general as we mean to treat the sheriff of Dublin on Tuesday next." This was what was called an ac- 1174 quittal of the learned gentleman; but whatever might be the view some gentlemen had taken of it, what really carried the House along with it was, the distinct and alarming charge of packing a jury. The acquittal (for, he would not quarrel about words) was due to that charge. Of all the alarming comments, on the filing of ex-officio informations, the intended proceeding by the attorney-general for Ireland with respect to the sheriff was the most alarming. He denied that an inquiry by trial would fulfil the object which they had in view. The issue would in that case be confined to the mere question, whether the party charged were guilty or not? The whole proceeding might fail from a trifling flaw; and there would be no opportunity of inquiring into the conduct of other parties, if the sheriff were shown to be not guilty. He knew of no tribunal half so effective for the purpose of sifting the truth, as an inquiry at the bar of that House, by an examination on the part of all the members, renewed day after day; an inquiry from which no equivocation could escape, no concealment could take shelter, and out of which the truth must in the end be elicited. The House had that night heard a lesson with regard to the state of Ireland, emanating from the long experience and great patriotism of his right hon. friend (sir J. Newport); not founded in violent or chimerical notions, but pregnant with the soundest political wisdom. His right hon. friend had declared it to be the curse of Ireland to be torn by factions, mobs, and associations; and to have nothing which could be fairly called a public. The Union, notwithstanding all the evils which had attended it, had at least brought to Ireland the chance of acquiring that inestimable blessing. Let it not be said, when Ireland complained of grievances, that the best way of allaying heats, of quelling dissention, and of diffusing satisfaction through the country, was, not to remedy those grievances. Let her voice be heard—let her wrongsberedressed—let her just demands be conceded, and they would hear no more of, turbulence and dissention with regard to Ireland.
§ The House divided: For sir Francis Burdett's motion 219. Against it 185. Majority 34. The committee of the whole House to consider of the said inquiry was ordered to set on Friday, and Mr. Sheriff Thorpe was ordered to attend.