§ The House having again resolved itself into a committee to inquire into the Conduct of the Sheriff of Dublin, sir R. Heron in the chair,
§ Mr. Joseph Henry Moore was called in; and further examined
§ By Mr. Jones.—Was there not a person examined, who offered evidence as to the person of one of the rioters, which evidence he was not suffered to give, because he did not know the person of the rioter at the time of the riot having been committed?—No such thing took place.
§ Was there a man of the name of Ryan examined before the grand jury?—[The witness was ordered to withdraw.]
said, that before the committee proceeded to examine the witness on points involving the performance of his duty as a member of a grand jury, they ought to decide the general principle of the capability of dispensing with the obligation of his oath of secrecy. A grand juryman was sworn not to divulge the counsel of the king, or of himself of fellows. The examination now about to be entered upon might put a grand juryman in, a situation at variance with that oath. As to the power of absolving the witness from such obligation, he would express no opinion, but would leave it for the committee to determine.
maintained that the House was entitled, in the discharge of its highest functions, to call on grand jurors to answer such questions as might be deemed necessary. This had been decided in the case of sir John Fenwick. Sir John had absconded, in consequence of a serious charge that had been brought against 120 him; and the House could hot proceed to his expulsion, until proof of that charge was laid before them. For that purpose it was found necessary to examine some of the grand jury before whom the bill 6f indictment had been preferred. He insisted that the case of admiral Byng, which had been adduced on the opposite side, was not relevant, and that the act of parliament for regulating the proceedings of Irish grand juries, did not oppose any obstacle to the inquiry.
§ Mr. Abercromby
stated it to be the opinion of Mr. Fox, that when the House acted in the capacity of a court of inquiry its powers ought to be as large as possible. He then went into an explanation of the act for the regulation of the proceedings of Irish grand juries, which bill did not relate to viva voce examinations, but to indictments found upon written depositions. He contended, that neither the bill as drawn up by Mr. Horner nor a particular proviso which had been added to it, went against the right of the House to dispense with the obligation of a grand juror's oath, for the purposes of public justice. An inquiry of this kind was for the benefit of the public at large, and the committee had a right to call before them every person who could give them information, and oblige them to answer fully and entirely.
Mr. Secretary Peel
said, the present was a question of very great difficulty. No man felt more strongly than he did the necessity of granting to the House the most extensive power for carrying on an inquiry of this description, and no man was more ready to admit that they were not, in their proceedings, to abide by the rules of a court of justice. There was, he conceived, only one case to which their authority did not apply, and that was the present case precisely, which was one of conscience. First of all, they placed individuals in a situation in which they were compelled to do certain acts. The grand jurors were obliged to take an oath, "not to divulge their own counsel, the king's counsel, or the counsel of their fellows," and then the House turned round and demanded of them to violate that oath. Was there, he would ask, any power in that House to release men from so solemn an obligation? Or, if there were, was it prudent, when the force of such an obligation depended altogether on conscientious feelings, to compel men to act; in contradiction to those feelings? Might not the 121 members of the grand jury appeal, on this subject, to a higher authority than that of the House of Commons? Might they not appeal to the authority of the whole legislature? In 1819, that House was party to an act having for its object the regulation of Irish grand juries. Gentlemen knew that the grand juries of Ireland had two distinct functions to perform—those of finding bills, and of money presentments. By the act of 1819, grand juries were allowed to divulge matters relating to presentments; but the other part of their oath, with reference to the concealment of evidence given on bills of indictment, remained binding on them. This plainly showed the light in which the legislature viewed the subject. Every grand juror swore to conceal the evidence given before him, "So help him God," or, in other words, he said, "may the divine protection be withheld from me, if I disclose what is stated in evidence." Could that House compel him to divulge that which he had thus impressively sworn to conceal? Suppose the House thought they could do so, and the individual answered "I know not what your construction maybe, I feel myself bound by the oath which I have taken, and no interpretation of others shall induce me to violate it," suppose the witness made such an answer, would the House commit him? In that case, the conscientious observer of an oath would be committed, because he entertained a religious abhorrence of its violation. A committal on such a ground, would be the worst exercise of that power which belonged to the House in cases of ordinary contumacy, and he doubted very much its policy. If they were not prepared to commit a witness who was convinced that no power on earth could relieve him from the sanction of an oath, then they ought to consider whether they must not leave it to the witnesses whom they called, to determine whether they would answer or not. There could be no other alternative, and the House ought to pause before it placed itself in that situation.
§ Sir J. Mackintosh
said, the question was, properly, whether an individual could be absolved from the sanction of an oath annexed to civil services of state, or the pure administration of justice, where the service was not for his own advantage, but was a duty imposed upon him. The right hon. gentleman opposite denied that any human authority could dispense with 122 the obligation. He did not recollect any instance of such a doctrine having been laid down, even in papal times, when the church in the name of religion but frequently to its abuse, imposed laws, and assumed the direction of all the affairs of society. When religion lent its sanction to civil offices, and enforced the obligations imposed by magistrates and the law, all the theologians casuists and moralists with whom he was acquainted, agreed that so soon as the competent authority which imposed the obligation thought proper to dissolve it, the influence of religion ceased with the existence of that obligation which it was called in to enforce. If that were not the true doctrine, what must be the consequence with respect to the oath of allegiance? The people of this country took the oath of allegiance to James 2nd, and afterwards to William and Mary. The latter oath was, of course, a positive repeal of the former; but were they on that account to accuse the people of England with having committed gross perjury? No; the oath of allegiance was but a promissory oath, from which a man might be relieved under extraordinary circumstances. No man could be relieved from an oath of testimony; because that was direct and immediate, and could not, therefore, be applies able to this case; but the oath of allegiance being promissory, was not binding longer than the original duty of allegiance. What was to be said of oaths which the clergy of England had broken, with regard to the see of Rome? Were the statutes of the Reformation founded in perjury? Were Cranmer and Fillotson, and other great divines liable to such an imputation? Were the founders of our mode of religion at the Reformation, and its protectors at the Revolution, grossly ignorant of the sanctions of religion and the obligations of law? He would not weary the House by going into the argument of the marriage oath; but he might be permitted to say, that that was another instance in which the sanction of religion' was added to civil duties, and ceased as, soon as the temporal obligation was dissolved bylaw. As to the manner in which the House was bound to treat witnesses who had religious scruples, that was a question of tenderness to conscientious feelings, and was very different from the question of the right of the witness to refuse to answer. It was not incompatible with the maintenance of the power of the 123 House to be tender to the religious impressions of individuals. No one would deny that the state had a right to exact oaths from the society called Quakers, as well as from all other subjects, but it was equally true, that it was wise and becoming to consult their conscientious scruples, and relieve them from an oath. It was his opinion, that if any juryman called to their bar should conceive that his oath was not to be dispensed with, he ought not to be examined; for he thought no witness ought to he questioned who was not content to be thoroughly examined.
§ Mr. Wetherell
entirely concurred in the opinion, that no court ought, on light grounds, to interfere with the scruples of religious persons, in the construction of an obligation. But, what was the case here? Let them not confound in one common sense, civil and religious obligations. What was the nature of the oath in this case? It was strictly an obligation for the performance of a civil duty: it had, certainly, from its nature, two aspects—one a religious, the other a civil obligation: but, in what sense did the religious part become involved? Why, to give effect to and to enforce the civil. It was, in fact, a pledge coram Deo, that the civil duty should be duly discharged. The true construction of such an oath, then, was that which aided the civil obligation. What was the principle which governed the construction of an oath? Some principle was actually necessary; for otherwise, as there were two parties—the one imposing the oath, and the other contracting it—they might clash with each other in their respective construction of the obligation. The principle long established was this—that the oath should be construed in the sense of the party administering it, and according to the terms he imposed. The hon. and learned gentleman then quoted Dr. Paley in illustration of this principle, that, as the oath was intended for the security of the party imposing it, it ought to be taken according to his avowed construction. With respect to the application of this principle to the particular case, if he were to hazard an opinion—for he would not venture to go further—he almost felt disposed to say, that the oath of secrecy of a grand juror was only intended to operate until the party was put upon his trial; for them necessity, the information previously given became public, 124 and the motive for secrecy no longer existed. Writers, he knew, were obscure upon the subject, and he would only venture to hazard an opinion. In application of the principle which he had already stated, he would ask, by whom, and for whose benefit, was the oath of a grand juror administered?—by the state, and in furtherance of the purposes of justice. Was it not lawful, therefore, for the state to say—"We, who administer the oath, release you who took it from the obligation it imposed." Why? Because the purposes of justice, which rendered that oath necessary, now require that you should, in the particular instance, be released from the secrecy which it imposed. If parliament had not the power of conferring this release, what an absurdity to have given them the right of entering into an unlimited power of inquiry! If the oath were inexpiable, then their inquisitorial power could at any time where a grand juror was concerned, be stopped by what was called a scruple of conscience. The indissolubility of this oath, and the privileges of parliament, could not exist together. And, could the legislature have ever meant, or contemplated, that they should come in contact? The only question, then, respecting this oath, was, quis imposuit, et quo animo? His answer was, the state imposed the oath, and the quo animo was in furtherance of justice. The oath, then, must be considered with reference to its real purpose, and the state which regulated that oath must have reserved to itself the power of removing the bond of secrecy when the interests of justice required further information. But then he might be told that a severe religionist might say, "My scruples are so strong, that I must have an act of parliament to exonerate me." To such a man he would reply, "How will an act of parliament remove your scruples? If they are sincere, you will stand just the same, as regards your conscience, after the act of parliament as you do before?" Let those who were severe religionists remember the university oaths which they took, and the manner in which they qualified that taking. Why, in the university of Oxford, of which the right hon. secretary wars so able a representative, nine-tenths of the gowns-and-caps-men who vaulted about that city talking English, and who stayed out of bed after nine o'clock every evening, were in the daily habit of com- 125 mitting perjury, if this extreme construction of an oath were to be maintained. They had sworn to talk in the Latin language, and to go to bed at nine o'clock every night. But, how did they reconcile this conduct to the oath they had taken? They did it in this manner:—they said that the progress of time had altered the character of the hour of the night, and that if the founder who had imposed the obligation were now alive, he would alter the hour to meet the custom of modern times. Indeed, he recollected that there was one statute which enjoined, that no higher price than two-pence a pound should be paid for mutton used in a particular college. But, were those persons who finding it impracticable to obtain mutton at that price, bought it at a greater, to be taunted with perjury?—Although this particular case had never yet been solemnly decided, yet analogous cases had been so. There was the case of sir John Fenwick, which was strictly applicable. With respect to the case of admiral Byng, the oath of the members of a naval court-martial bound them to secrecy, unless they should be released by act of parliament. As to the privy counsellor's oath, it was not necessary to consider it, but the cases were not exactly analogous, because in the case of the privy counsellor, the authority imposing the oath was the Crown. Upon the whole, the best consideration which he had been able to give to the subject, confirmed the conviction which he yesterday entertained, that what it was proposed to do, was no excess of power.
§ Mr. Bright
contended, that upon a question of such vital importance as this, it was incumbent upon the House to exercise its undoubted privilege of obtaining the utmost information, and he appealed to the highest authority in that louse to declare whether their privileges would not be affected, if they were compelled to stop here. Let the House see the state in which they would be placed. The acquittal of this sheriff would follow, not upon the merits of the case, but upon the absolute impossibility of their obtaining the information necessary for the ends of justice.
said, that however important this case was, the House were bound to take care that the more important interests of the community were not made subservient to its convenience. The question really was, was the grand juror's 126 oath an unqualified obligation, or was it not? If, as he maintained, it was, then that House had no power to interpose. What had college statutes, about talking Latin, early hours, and the price of mutton, to do with such a subject, and what was the tendency of introducing them, but to weaken the obligation of an oath where it ought to be most, seriously impressed? But it was said the state imposed the oath, and the state was now interested in the disclosure. Was the state the only party interested in, a grand juror's oath? Was there not a third party more importantly concerned—the individual against whom the evidence was given, who might not be tried, or if tried, might possibly be acquitted? Surely such an individual ought not to have the ex parte evidence given before the grand jury lightly promulgated against him. He was not disposed to treat in so qualified a manner so serious an obligation.
§ Mr. Denman
argued that this was a proper case for calling upon a grand juror to give his testimony at the bar. The case of James 2nd, who had broken his compact with the people and the government, furnished an instance in which subjects might be said not so much to have been absolved from their oath of allegiance, as that that oath no longer applied to them. If so much stress was to be laid upon the doctrine, that in no possible case was a grand juror to be Freed from the obligation of his oath, let the House observe what mischievous consequences might follow: a man might prefer a bill against another before a grand jury, fraudulently and maliciously, upon his oath; and when that bill should come on to be tried before a petty jury, he might swear precisely contrary to the tenor of his former oath; and a grand juror, happening to be present, would be prevented from at once demonstrating the perjury of such a witness, and the innocence of the accused, because he was to be held bound not to divulge what had taken place before him. The hon. and learned gentleman then proceeded to show, on the authority of lord Somers, that the oath of a grand juror "not to disclose the king's counsels, his fellows, or his own," was intended for the security of the rights, lives, and property of the king's subjects, and could by no, means be construed to prevent a grand juror from giving his evidence in aid of justice concluded by expressing his concurrence 127 with the hon. member for Bristol, that it was impossible to condemn the party before the House, unless the House gave him the benefit of every evidence that could be properly resorted to.
§ Mr. Canning
could not at all agree with those who considered that the oath taken by grand jurors by no means strictly connected itself in their minds with the business before the grand jury. He did believe that they who took the oath to keep secret the king's counsels, their own, and their fellows', imagined that they were solemnly pledging themselves to keep secret what might pass amongst and before them, on the subject of such bills as were brought under their consideration. If this was an erroneous view of the character of the oath, it would rather be a ground for a new legislative enactment, than for the course which had been proposed on the present occasion. The practical question to be decided by the House was, whether the proposed mode of inquiry was to be proceeded in? This question, in his view of it, involved two most material points; first, as to the authority possessed by the House of enforcing such a course of examination; and secondly, as to the discretion which they ought to use in carrying that authority into execution. Now, as to the power of the House to enforce such a mode of inquiry in cases of emergency, certainly no one could deny it. But, unless in cases of great emergency, he thought even the discussion of that right a matter pregnant with much danger. It was a question which, on every ground, ought not to be debated, except when a case arose that rendered its agitation necessary. The present was not a case of that kind; and the case put by the hon. and learned gentleman opposite was of little importance in its bearing upon it. The House need hardly consider in what way it would be disposed to exercise its discretion upon the matter before them, if it was not called upon to do so under existing circumstances. It seemed to be admitted on all hands, that a refusal by a party who had taken the oath of a grand juror to answer certain questions that might be put to him in the course of this inquiry, would not constitute, whether arising from purely conscientious, or merely discretionary motives, such a case as should call upon the House for the exercise of its extreme severity in sending the witness from their 128 bar to Newgate. He called upon hon. gentlemen, therefore, to consider whether they would exercise their authority in this instance; for he could not see the possible advantage of their saying, beforehand, as it were, "If you don't answer such and such questions, that will not be a case in which we shall exercise our privileges." This had been put as a case for a tender conscience; but, was it not perfectly clear, that the persons most likely to take advantage of such a declaration were those whose consciences were of another character? The right hon. gentleman, after arguing to show the inexpediency of discussing abstractedly a very nice and difficult question, observed, that if the matter was pressed to a division, he should vote against any inquiry of the sort proposed. He then deprecated the course which an hon. and learned friend of his had pursued, in resorting, upon the question of an oath, to ridiculous comparisons, such as had been attempted to be instituted between the solemn oath of a grand juror, and these obsolete and formal oaths which gentlemen were in the habit of taking at the university, and violating without offence, or scruple, or remorse. An oath of this more grave and serious nature, was, after all, the last resort of good faith among men; and it was unwise, and more than improper, to treat it in any way that might derogate from its sanctity.
§ Mr. Wetherell,
in explanation, begged that he might not have all the high merit and distinction of treating the question of certain oaths with some degree of ridicule. That merit was to be shared at least with that great and enlightened moralist and divine Dr. Paley, whose book he had quoted from.
rose merely to state what he conceived to be the bounden duty of the House. A charge had been brought forward by an hon. baronet against the sheriff of Dublin, for having improperly empanelled a grand jury. Now, without entering into the question which had that night been so much discussed, it would surely be a gross injustice to the sheriff if the evidence affecting the empanelling of that jury—if the testimony of the grand jury itself—could not be heard, supposing it necessary to his defence. He rose, therefore, to submit to the House, that if these interrogatories were not to be put, all the previous evidence that had been taken affecting the conduct of the 129 grand jury ought to be expunged from the minutes. At all events, that part which was inculpatory ought not to be kept in, if that which might be exculpatory was to be put out.
§ Mr. Brougham
said, that he had last night recommended delay, in order to give opportunity for a mature inquiry into a point of so grave and serious a nature as the present. He was now anxious to offer a few observations upon it, and the more so as he confessed that he now felt much fewer doubts upon it than he did on the former occasion. He certainly was of opinion, that if the House could avoid coming to any decision upon this point—if they could prevail on themselves not to decide upon it—that would be the most convenient, as well as the safest course which they could adopt; but that course could, only be adopted by their abstaining altogether from inquiring into what passed Before the grand jury. For it certainly would be going against justice to enter at all upon the inquiry without pursuing it to its fullest extent. Then, the practical question for the consideration of the committee was, could this inquiry go on with safety to its own object—could it be effectually prosecuted—without inquiring what did take place before the grand jury? If there was any member in that House who thought not, then that member must be also of opinion, that the inquiry must be prosecuted to its fullest extent. And then would come the inquiry as to the power of the House to absolve a grand juror from the obligation of his oath. He saw no middle course. If they could not go into that inquiry without taking this course, and if the House did not possess the power of taking it, then it must drop altogether—a circumstance for which he has no doubt every member of the House would feel extremely sorry. But he did not feel that they were placed in this dilemma: he did not conceive that what had passed before the grand jury of Dublin was necessary to the vindication of the sheriff's character; and his reason for thinking so was this: The main question to be inquired into was, whether the sheriff had packed the grand jury? Now, if that jury so packed, had done as it was expected they would do, and if this were proved, it certainly would tend much to the crimination of the sheriff; but if they had been disobedient, and had not done what it was expected they would do by the person who packed them (always supposing them 130 to have been packed), that would not, in his view of the case, tend to exculpate that officer. To be sure, an officer having such an object in his view, would select men fit for his purpose, or whom he thought fit for his purpose; he would try to find men who would say to A. B. "We can't listen to your evidence respecting such a man, because you did not know his name at the time that you saw him do so and so." But the disobedience of such a jury would be no proof of the innocence of the sheriff. He was particularly anxious to guard against its being sent forth to the world that the House doubted its power to act in cases of emergency. All that was necessary to be done in this case was, to decide that there was, in this instance, no necessity for its exercise. Such an occasion might arise—it might arise even on that very night; but sufficient for him was it to perceive, that that occasion was not now arrived. If any hon. member were to say that the character and credit of the sheriff were not safe without such an inquiry, that alone would be sufficient ground for entering on the present discussion, if a discussion upon the point should be thought necessary; but he had heard no hon. member yet assert that that was the case. He now begged to observe, that, he thought he had been misled with regard to some of the doubts he entertained respecting a clause in the act of the 56th of the late king. He had since consulted a gentleman who had taken an active part in the framing of that act, and he found that if it were considered a new enactment to make that law which was not law before, then he must say that the law of Ireland differed from the law of England—an admission which he was very 10th to make, and which ought not to be lightly made. Upon the law of England, he was at a loss to see how any doubt could be raised upon this point. Would any man pretend to say that a person could not be prosecuted for perjury committed in his evidence before a grand jury? If they once admitted this, then every man, who, from spiteful or malicious motives, went before a grand jury to prosecute his neighbour, would be free from the punishment due to his crime; because, in nine cases out of ten, there were no persons listening to his evidence but the grand jury; who, according to this doctrine, would he prevented by their oaths from appearing against him. But, an hon. and 131 learned friend of his had furnished him with a case decidedly in point on this subject. A man was tried for a capital offence; the witness for the prosecution deposed strongly against him; and as the case was going on, a grand juror threw down a note to the prisoner's counsel, stating that the witness had sworn quite the reverse before the grand jury on that morning. The statement was instantly made known to the court, and Mr. Justice Buller ruled, that the grand juror should be allowed to appear as a witness: he did appear, the man was acquitted, and he understood that the witness was afterwards convicted of perjury on the evidence of that grand juror. The oath of the grand juror was never intended to impede the course of justice; it was meant to prevent idle gossip; to prevent persons from talking over at an ale house or at a gentle-man's table after dinner, the whole of the circumstances which had taken place in the grand jury room. The oath of a grand juror bound him to keep the king's counsel, his fellow jurors and his own. That the king's counsel should be kept was necessary, as otherwise the accused might escape and justice be evaded; but it never could have been intended, that a juror's bath should prevent him from appearing as a witness against a person guilty of perjury before him. The House ought to give every sort of credit to, and act with all manner of kindness towards, really conscientious scruples. At the same time, their proceedings would be most improperly impeded, if the witness was to be the judge of the expediency of yielding to those scruples. It would be for a witness to make an objection, and for the House to determine whether the objection was a valid one. If a witness was allowed to plead the tenderness of his conscience as an excuse for not giving his evidence, there would be an end of all inquiry. What would be said if one of the society of friends were to come into a court of justice, and say that his conscience not only precluded him from taking an oath, but because he had strong feelings on the subject of capital punishments, also prevented him from giving evidence which might affect the life of an individual? The answer which would be given to such a person would be this—"Sir, you have no right to have a conscience on such a subject at all: the legislature is the only judge of the necessity of taking away a man's life, and your notions of jurispru- 132 dence must not stand in the way of justice." So, with respect to witnesses at the bar of that House who might plead a tenderness of conscience, he would say—"Place your conscience in our keeping; we will deal with it with all tenderness; but we are the proper judges of what ought or ought not to be given in evidence in this House."
said, he should extremely regret any circumstance which would prevent the sheriff of Dublin from producing at their bar testimony which would go to contradict that which he (col. Barry) believed in his conscience to be false evidence. Indeed, he should regret any thing which would put an extinguisher upon the present inquiry. The grand jury themselves, as far as he had been led to understand, had no objection to state at the bar what took place before them, as they did not conceive the obligation of their oath went so far as to prevent them from giving evidence in any inquiry instituted by that House for the purpose of attaining the ends of justice.
The Attorney General
observed, that when, two nights ago, the first question was put to a witness with respect to the conduct of the grand jury, he had entered I his protest against such a line of evidence, because he foresaw, that, if it were persevered in, the committee would be placed in the dilemma in which they now stood. He regretted that the House had not listened to his advice upon that occasion. He knew that in the case of sir John Fenwick the House had compelled a grand juror to state proceedings which had passed in the jury room; but he doubted whether it would be expedient to follow that precedent upon the present occasion. He had not yet made up his mind open that point, and he hoped that the committee would not come to a hasty decision of the question before it. Of this he was satisfied, that if the committee should refuse to receive the evidence of the grand jury, they ought, in justice to those gentlemen, to expunge from the minutes of evidence every word which related to their conduct.
said, that in his opinion the House had decidedly the power to inquire into what passed before the grand jury, and that it would be no violation of the oath of any grand juror to give the fullest information the House might require of him. If the question under consideration was, whether in every case that 133 House had the power of absolving a man from the obligation of an oath, be should give it his decided negative; because, it was absurd to say that any one branch of the legislature could undo that which was the united act of the three. But that the legislature had the power of abrogating certain oaths, was undeniable, otherwise the half of our ancestors were perjured men; because, previously to the Reformation, there existed many oaths, exacting the performance of certain duties, which oaths were altogether abrogated after the Reformation. If the matter were not sifted to the utmost, it would be the duty of the House to strike out of the minutes every tiling relative to the conduct of the grand jury. It would be the height of injustice to hear charges against that body, and to deprive them of the power of answering those charges.
§ Sir J. Newport
suggested that a motion should be made to expunge from the minutes all that related to the conduct of the grand jury. [Cries of "move."] He would first wish to know the opinion of the right hon. gentleman opposite.
was of opinion, that the proceeding suggested by the right hon. baronet would be an act of gross injustice towards the grand jury. Could the committee, after having allowed all the calumny (he did not use the word in an offensive sense) which had been uttered against the grand jury to be published, now refuse to hear and record their vindication?
§ Sir J. Newport
said he would not make the motion in opposition to the opinion of the right hon. gentleman.
§ Mr. Dawson
said, he had been in doubt whether any examination of a grand juror should take place, but the speech of the hon. and learned gentleman (Mr. Brougham) had completely removed that doubt from his mind. After what had been said of the conduct of the sheriff and the grand jury, it would not be doing justice to either, nor dealing fairly with the administration of justice in Ireland which was thus impeached, if they did not go into the fullest examination of all those whose evidence tended to the elucidation of truth. However inconvenient the course of examination proposed might be, he thought it ought to be gone into.
§ Mr. Goulburn
said, it was very natural for an Irishman to wish to clear the administration of justice in that country from every; imputation. of partiality. He was 134 as anxious to do so as any hon. member, but he must think that the course, pointed out would be attended with very considerable inconvenience. He had given the utmost attention to the arguments which had been urged in favour of examining the grand jury; but he had not yet heard anything which satisfied him of the justice of compelling parties to violate so sacred an obligation as an oath.
§ Sir N. Colthurst
said, that the attorney-general for Ireland had "declared it was not his intention to cast any imputation upon the grand jury. It appeared, however, that in the list of witnesses which he had given in, there were five persons who could not be examined for any other purpose but that of impugning the conduct of the grand jury, as they were called to state how they had been treated when called before that body to give their evidence. Under these circumstances, he thought the fullest inquiry should be entered upon, for the purpose of giving all the parties an opportunity of defending themselves.
§ Mr. Canning
said, that the decision of the House, if it should be for allowing the question objected to to be put, would still leave the real point open for dicussion, for the witness might go on with his testimony until he came to some point which he might consider himself prevented from answering by his oath of secrecy. The question would then be raised as to the power of the House to compel him,. If, however, the committee should decide that the question should not be put, they would cut off the matter altogether. The right hon. gentleman then referred to the petition of the grand jury, in which they complained of the imputations cast upon them by the attorney-general for Ireland, and which imputations they observed they were prevented from rebutting by the oath of secrecy by which they were bound. Now this, he observed, was sufficient to show the feeling which that jury entertained with respect to their oaths, and that the committee were proceeding to do that to which they had such a conscientious objection.
§ Sir J. Mackintosh
said, that since the presentation of the petition, the grand jury had presented another jointly with the sheriff, in which they prayed for the fullest investigation into their conduct, and expressed their willingness to repair to London for that purpose.
§ Mr. Canning
said, that if all the jury 135 had no objection to be examined it might be another question but if" some should object to be examined, the committee would have to come to the question as to the propriety of compelling them. Now, he thought that would be objectionable; and therefore if the committee divided, he would give his vote for not putting the question, by which the matter would be set at rest.
§ Mr. Brougham
said, if the sheriff and his friends desired it, he saw no objection to the examination; but he did not think the examination of the grand jury at all necessary to the case of the sheriff.
§ Mr. Dawson
said, if the grand jury sought to give an explanation of their conduct, the opportunity should not be denied them of answering charges so unequivocally made.
§ Mr. Tierney
conceived that they must have all the evidence respecting the grand jury or none. Would it not be better to shape some middle course, and instruct the chairman to state to any grand juror who might come before the committee, that he must either be silent as to the conduct of the jury, or consent to be examined touching all that occurred.
Mr. Keith Douglas
said, that rather than have the proceedings conducted in this undecided manner, he would wish the whole inquiry to be put a stop to at once; and if any member felt disposed to second him, he would move that the chairman do report progress, and ask leave to sit again that day six months.
§ Sir J. Mackintosh
did not see how the committee could possibly refuse to the grand jury an opportunity of defending themselves if they required it. As to the oath of secrecy, the grand jury by their joint petition with the sheriff, in which they complained of the charges made against them, and expressed their readiness to repair to London to aid any inquiry which the House might please to go into, distinctly waived the question of secrecy; because examination could take place to exculpate them, but an examination of themselves. This petition either gave up any objection to be examined as to what passed in the jury room, or it was a dishonest attempt to deceive the House.
§ Sir G. Hill
thought that the evidence already gone into respecting the grand jury was by no means necessary to the Case of the sheriff. Indeed it was his opinion, that it would be greatly for the convenience House and the coun- 136 try, if the entire investigation was to close here.
said, that the House had to come to a decision upon this abstract point—whether the House ought to compel a grand juror to answer? He had declared from the outset, that unless the, proposed interrogatories were put and, answered, gross injustice would be done to the sheriff, by suffering what was already On the minutes to remain there without giving him the opportunity of reply.
Mr. R. Smith
proposed to move, That, under all the circumstances of the case, it is not expedient to proceed with the inquiry with respect to any thing that passed before the grand jury."
was opposed to the expunging of any thing, from the minutes. If anything were expunged, the charge would have been published in all the newspapers, without the means of giving it an answer. He was willing to rest the case of the grand jury on what had already appealed, without pressing it further.
§ Mr. Peel
observed, that the committee had, in fact, nothing to do with the grand jury, but as its conduct implicated or acquitted the sheriff. He saw no reason why it should not proceed with other parts of the inquiry, regarding which all were agreed, and postpone this question respecting the grand jury, until it was found necessary to decide it.
§ Mr. Brougham
fully concurred in what had been said by the right hon. gentleman. The only practicable method was to postpone to the last moment the decision of the abstract question. It would thus be left open to the hon. colonel to call any grand juror he thought right to bring forward. If he did not think it necessary to produce them, the question would not arise [Hear].
added, that he should call some of the grand jurors, but not to any matters connected with what had passed before them when the bills were ignored.
§ Mr. John Davis called in; and examined
§ By Colonel Barry.—What is your situation in life?—I have been educated in a respectable mercantile establishment; since that I have been much on the continent; I now reside near Dublin, within a few miles of it.
§ Do you know a person of the name of Addison Hone?—I do.
§ Do you recollect being present at any conversation between Addison Hone and sheriff Thorpe?—I do.
§ State what that conversation was?—I recollect walking with Mr. Addison Hone, some few days, probably three or four, previous to the meeting of the January grand jury. I remember Mr. Hone, having met Mr. Sheriff Thorpe, addressing him; he informed him, that he understood Mr. Sheriff Thorpe had received a communication from the crown solicitor, relative to this panel. Mr. Sheriff Thorpe, without any reply, seemed to affirm that he had, without explaining the nature of that communication. Mr. Hone then observed, that it was hot his intention to go on this jury, but that in consequence of that communication, as it was generally well known through the city of Dublin, he now declared his wish to occupy his place on that panel, and requested the sheriff to put him on it. The sheriff replied something synonymous to this, "that he was considered a party man in the city; that as there were some circumstances of a very particular nature would come before that jury, he was anxious to be free from any appearance of partiality, and under that impression he should not put him on;" I think he added, "that the same would not apply to Mr. Davis, and that he would be on the jury."
§ What did you conceive the sheriff meant by a party man?—I considered it applied in that sense to Mr. Hone; that he is a gentleman who has avowed his sentiments on the politics of the day; he is considered a high protestant ascendancy man. I believe there is an impression very generally prevailing, that he is an Orangeman; but I believe that he is not.
§ By Mr. S. Rice.—Are you an Orangeman?—I am not.
§ Are you a member of the grand jury?—Of the January grand jury I was.
§ Do you know of a subscription that was made in Dublin, for the purpose of dressing the statue?—No, certainly not, at the time of the dressing of the statue.
§ You do not know any thing with regard to that subscription of your own knowledge?—Certainly not.
§ The right hon. William Plunkett made the following declaration in his place:
§ On communication with the law officers, I determined to have a letter addressed by Messrs. Kemmis to both the sheriffs, for the purpose of their joining in returning the panel; and that letter, now shown to me, is the letter which was accordingly sent. [The letter was delivered in and read; and is as follows:]
§ Kildare-street, 24th Dec. 1822.
§ "Gentlemen;—In pursuance of a communication we have this day received from his majesty's attorney-general, we have the honour to inform you, that, in order to avoid any suspicion of partiality, on the approaching trials at the commission, it is expected that the panels 138 shall be returned by both the sheriffs, as the law requires. We, &c. Thos. & Wm. Kemmis."
§ Mr. William Carpenter called in; and examined
§ By Colonel Barry.—Do you know any person of the name of William Poole?—do.
§ Did you hear any conversation between him and sheriff Thorpe, a few days before the commission?—I did; it was in the court-house, in Green-street. Mr. Poole came to 'sheriff Thorpe, and he told him that he was informed that he was not on the panel; he said, that he was astonished, as Mr. Thorpe had premised him, about six weeks, or two, months back, to put him on the jury. Mr. Thorpe told him, that he could not put him on the jury; that the panel had been made out by his brother sheriff and himself. Mr. Poole some time after, told him, that if he put him on the panel he would not interfere with the matter which occurred in the theatre.
§ Did he state any particular reason for wishing to be on the grand jury?—He mentioned that there was a bill of indictment against a Mr. T. O'Meara, for perjury. He said he would be able to explain the circumstance to the jury, if he was put upon the panel.
§ What reply did sheriff Thorpe make?—He told him that that very circumstance would prevent him from putting him on the panel. This was about two or three days prior to the jury being sworn for the commission. It took place in the Sessions house, in Green-street.
§ By Mr. S. Rice.—Do you recollect having made any declarations, with regard to the possibility of bills being sent up to a grand jury, respecting this play-house riot, before you served upon that grand jury?—No, I do not.
§ You never declared, that if such bills had been preferred to a grand jury, they ought to have been thrown out?—Never.
§ Did you belong to an Orange association at the time that you were sworn as a grand juror?—I did.
§ By Mr. R. Smith.—Who was present, besides yourself, when Mr. Poole addressed this conversation to sheriff Thorpe?—There was a vast number in the court, but not near us; I was sitting between sheriff Thorpe and Mr. Poole, in the sheriff's box with sheriff Thorpe.
§ He spoke across you to sheriff Thorpe?—Yes, he did.
§ Have you any previous acquaintance with Mr. Poole?—O, yes.
§ Have you been in the habit of private intimacy or friendship with him?—Nothing more than meeting him in the assembly, and on a committee, and oh grand juries.
§ Is he a man whom you reckon a warm man in politics?—I think so.
§ An Orangeman?—No.
§ Is he what you call a conciliation-man,? I believe so.
§ Have you and he been often on the same side at meetings of the common-council? Not on the same side.139
§ You have been divided?—Always.
§ That made no heat of blood between you?—No.
§ You agreed perfectly well?—Perfectly well.
§ Did you not think it somewhat extraordinary, his holding this conversation with sheriff Thorpe before you?—No, I did not, at the time.
§ Have you often heard men talk in this way, to sheriffs, about being put on special juries, and making bargains what they would do, and what they would not?—I have heard men make the request;
§ Did you ever hear another man make a request to alderman Thorpe?—Never.
§ To what sheriff have you heard requests made?—I think Mr. White; I made a request myself to get a gentleman on the jury.—He was an Englishman, and had never been on a jury in Dublin, and he wished to get on the grand jury.
§ Did you ever mention this conversation, which Mr. Poole addressed to sheriff Thorpe, to any body else?—I cannot recollect.
§ Did Poole, soon after he had said this, go out of the box, and leave you two alone, or did you leave him with sheriff Thorpe?—When he was leaving the box, he told sheriff Thorpe he had not treated him gentlemanly.
§ What did sheriff Thorpe say when Mr. Poole proposed to have nothing to do with this matter of the riot, if he would put him on; did sheriff Thorpe make any reply?—He said he could not alter the panel, as it had been made out by his brother sheriff and himself.
§ After he was gone, had you any conversation with sheriff Thorpe about what had passed?—I had I mentioned to Mr. Thorpe, he seemed to feel so anxious, "if you possibly could, it will be as well not to have any difference between you and Mr. Poole, if you could put him on the panel? the circumstance he has mentioned, said he," would prevent my putting him on the panel.
§ By Mr. Hume.—Do you take an oath as an Orangeman?—I do.
§ Have you any objection to state what that oath is?—I really do not recollect it, but the principle of it is this; to support the king and constitution.
§ Is there any thing else but to support the king and constitution: do you recollect nothing more?—I do not recollect.—[The witness was directed to withdraw.]
§ Mr. Goulburn,
protested against the inference of the hon. member. He should be glad to know, whether the hon. 140 member could repeat the oaths he bad taken at the table of the Housed.
§ Lord Milton
thought the observation of the right hon. secretary extremely weak, and beside the question. Did it follow, because hon. members might not be able to recite the oaths they had taken, that they did not know the tenor of them? He agreed with his hon. friend that this man's testimony ought to be received with great caution, after his declaration that he, did not recollect the oath he had taken. He believed it was well known that the Orange oath contained something beyond the mere obligation to support the king and constitution.
begged to state, in the first place, that he was no Orangeman. As to the terms of the oath, they were in print. The witness could have no motive to conceal what was known to almost every body. He hoped it would not be laid down, that because an individual had taken an oath as an Orangeman, he was therefore not to be believed.
§ [The witness was again called in.]
§ By Mr. Peel.—Do you conceive that you took any oath or obligation of any kind, which prevents your telling this House the truth, the whole truth, and nothing but the truth?—No.
§ By Sir J. Mackintosh.—have you taken an oath of secrecy of any kind as a member of the Orange association?—No; I really do not consider the oath a secret one, for I have shown the oath.
§ Does the oath which you take as a member of the Orange association, bind you to keep any thing secret and what?—It does; there are signs among Orangemen which are kept secret.
§ Does it bind you to conceal nothing but the signs by which Orangemen know each other?—I believe not; I do not recollect any thing; I cannot speak positively.
§ By Mr. Jones.—How long have you belonged to an Orange lodge?—About three years.
§ You have been on habits of intimacy have you not with sheriff Thorpe?—Sometimes.
§ Did sheriff Thorpe know you were an Orangeman?—He had no reason to know that I was one.
§ You did not keep it a secret that you were an Orange man from your friends and acquaintances did you?—I never made it very public anything more than in society.
§ Did you at the same time keep it secret?-Tolerably so.
§ Did not your friends and acquaintances know you were an Orangeman,generally speaking?—a great number of them did.141
§ Amongst those, friends and acquaintances, sheriff Thorpe was one?—Yes.
§ By Sir J. Mackintosh.—What is the number of the Orange lodge of which you are a member?—1640.
§ Does not the oath you have taken as an Orangeman bind you to be faithful and true to all Orangemen?—It does, and it binds me as well to my brother Roman Catholics.
§ Does the oath contain words to this effect, "I swear to be faithful and true to all Orangemen?"—I believe it does.
§ You have said that you also swore to be faithful and true to all your Roman Catholic brethren, are you sure the oath contains these words, "I swear to be faithful and true to all Roman Catholics," or words bearing that import?—It is very near that I think.
§ You wish the committee to believe that the same words are applied to Orangemen and Roman Catholics in the oath you have taken?—No, I do not think they are exactly the same words.
§ Are they words of the same meaning?—No.
§ Do not you recollect that you just now said that they were very nearly the same?—It is really so long since I have taken the obligation that I do not recollect the words.
§ You have used the words, "my Roman Catholic brethren," will you say that the oath contains the words, "Roman Catholic brethren—The word "Roman Catholic" is in the obligation.
§ Will you state that the word "Roman Catholic," has in the oath any friendly application to the Roman Catholics, in the same way as when it is applied to Orangemen?—Not in the same way, but it is in a friendly way in the oath.
§ Does the oath contain any thing else about Roman Catholics?—I do not recollect.
§ Does the oath not contain an express declaration, that the person taking it is not, and never was, a Roman Catholic?—It does.
§ Are Roman Catholics once mentioned or twice mentioned in the oath?—I do not recollect.
§ How came you to tell the committee that the oath bound you to be faithful and true to your Roman Catholic brethren as well as to the Orangemen?—I stated the matter to the best of my recollection.
§ Your recollection at that period was different, from your recollection at the present was it?—It must be.
§ You recollected five minutes ago that you had sworn to bear friendship towards Roman Catholics, and now you recollect only to have sworn to disavow and disclaim being a Roman Catholic, how do you reconcile both those statements?—In admitting members into the lodge, they must swear that they never were Roman Catholics; that is what I alluded to.
§ Do you know whether Joseph Lamprey was an Orangeman?—I have heard so—I believe he was.
§ Is Mr. George Holmes an Orangeman to your knowledge?—I have no reason to believe him so.
§ Do you know whether Mr. John Foster is an Orangeman?—I do not know.
§ Or a Protestant ascendancy man?—He would certainly drink that.
§ Mr. John Stephens, do you know whether he is an Orangeman or not?—I do not know.
§ Is he a Protestant ascendancy man?—He would drink the toast.
§ Is Mr. Joseph Moore a Protestant ascendancy man?—He is.
§ Is he an Orangeman?—Not to my knowledge.
§ Is Mr. Perrin an Orangeman?—I do not know.
§ Is he a Protestant ascendancy man?—Yes.
§ Is Mr. John Davis a Protestant ascendancy man?—Yes.
§ And Mr. Andrew Woods?—Yes.
§ By Sir G. Hill.—Will you state whether you are aware that there is any thing in the oath taken by an Orangeman, that has not been published over and over again?—It has frequently been.
§ Has there been any thing in any oath to your knowledge, taken by an Orangeman, that has been withheld from publication repeatedly?—No.
§ By Mr. Hume.—Are any contributions of money collected in your lodge, or any quarterly payments made?—Nothing more to my knowledge than what pays for the expense of the night, what is drank.
§ By Mr. R. Smith.—Do you think that any. saving could be effected in those expenses? [a laugh!]—No; I do not, indeed.
§ By sir J. Netoport.—You were present: at sheriff Thorpe's dinner when his health was drank, did he make a speech?—He did.
§ Did sheriff Thorpe in that speech pledge himself to pursue any line of conduct during his shrievalty?—To the best of my recollection he did; the only part that I recollect was, that he pledged himself to give the glorious memory.
§ Do you recollect whether Mr. Sheriff Thorpe pledged himself during his shrievalty to act up to the opinions of those who had made him sheriff?—I believe he did.
§ Whom do you consider that he meant by those who had made him sheriff?—The Commons; what is commonly called the glorious memory men.
§ You slated that in the conversation that Mr. Poole had with sheriff Thorpe, he said he would not interfere if he put him on the jury: what did you mean by that expression?—What he meant by that was, there were bills of indictment against those persons for rioting in the-theatre, and that was what Mr. Poole alluded 143 to, that he said he would not vote upon that.
§ Do you consider yourself bound by any oath which you have taken as an Orangeman, to conceal any evidence you have it in your power to give to this committee?—Certainly not.
§ Was there any subscription in your lodge, for the subsistence of the traversers, the men who; were to be tried under this indictment?—Not to my knowledge.
§ How many members have you in your lodge?—At the time I attended, there were perhaps about 25 or 30.
§ Did you ever hear of any subscriptions among the Orange lodges in Dublin, for the support of the traversers?—I did, I heard of it.
§ Do you meet by summons?—Yes.
§ What are the toasts given?—"The King" is generally the first toast; and then "The duke of York" and "The duke of Clarence and the Navy."
§ And the usual toast of "King William?"—Yes.
§ You drink the usual toast, "The glorious memory?"—Yes.
§ Did not you state that Mr. William Poole was a conciliation man?—Yes.
§ Did you know what induced Poole to say he would take no part against the rioters, on the inquisition, provided he was left on the panel?—Yes; he mentioned the reason, that there was a. bill of indictment against Mr. O'Meara.
§ Do you know what induced Poole, a conciliation-man, to hold out an offer to sheriff Thorpe, that if he was left on the panel, he would give no vote as to the rioters at the theatre?—The only reason which I know is, that Mr. Poole has differed with the majority a good deal, in the Commons; and that perhaps Mr. Thorpe might think that if he was on the jury, there would be a difference.
§ Did sheriff Thorpe, when this offer was made by Poole, of not interfering with the rioters at the theatre, express any surprise or indignation?—He did; for he told him that would be the very means of preventing him from putting him on the panel.
§ The House resumed. The chairman reported progress, and obtained leave to sit again.