§ Mr. O'Connell
spoke to the following effect: Before I proceed to bring forward the Motion of which I have given notice, I wish to observe, that the notice for this day which appears on the paper, relative to the homicides at Borrisokane, must have got there by some mistake, for which I cannot account, as my notice relative to that affair was for Tuesday next. This I am at a loss to explain, as there was no mistake on the subject in the public papers. The notice which I gave for this day, and upon which I rise now to move, is one for the production of documents which I deem necessary in order to enable the House to judge correctly upon a matter of serious importance as connected with the administration of justice, and to make it as probable as possible that I may obtain them, I shall limit the number as much as is consistent with the objects I have in view; and I will begin by stating, that although my notice is for the depositions of all the witnesses examined on the Special Commission at Cork, I shall now limit myself to moving, in the first place, for the depositions of but one witness, Patrick Daly; and, secondly, for the notes of the learned Judges who presided at these trials. Each of these Motions require a different consideration, but in both I shall lay grounds plainly and distinctly, to entitle me to the information I require. Before moving for these documents I shall state the specific subjects of each, and then I shall show how they are to be applied. The object I have in view is that of bringing before the House a complaint of the mode of preparing criminal cases for trial in Ireland, by Magistrates taking depositions without the knowledge of the parties charged; which appears to me a bad, a dangerous, and an unjust practice. I shall, for this purpose, instance the particular case of the Doneraile Conspiracy, 597 and the mode in which information was taken in that case. That is my first object, and I shall bring it specifically before the House, that it either may be censured, as inconsistent with law, or, if it shall be found sanctioned by usage, that it may be altered by the Legislature. My second object is to complain of the mode in which the prosecutions under the Special Commission were, in one respect, conducted by the counsel for the Crown, in order, if it appear from the facts that my complaint is well founded, that I may take the opinion of the House as to the legality of this mode; or, if the practice resorted to, has been sanctioned by usage, then I think I shall easily obtain leave of the House to bring in a bill to alter that usage. Such are the objects I have in view, and I shall state the grounds of them distinctly and plainly, and without any irritation or angry feeling whatever, but at the same time as fully as ever I stated them anywhere, according to the best of my recollection. As far as I have been able I have looked to the reports of what I have said elsewhere, and although I know these reports to have been somewhat stronger than the language I made use of, yet I shall not question their accuracy, but shall abide by the statements that have, as far as I know, been imputed to me. It will be now necessary, before entering on the first question, to direct the attention of the House to the nature of the Doneraile Conspiracy. About the year 1821, it is well known that the whole of the Southern districts of Ireland were in a disturbed state. Political acrimony and agitation amongst the Catholics, which had ceased on the occasion of the King's visit, to Ireland, had afterwards, when the hopes excited by that event had faded away, been revived with increased force, and the country became extremely discontented. In some parts of the South the discontent actually broke out into open rebellion; which was put down, partly by force, partly by the arm of the law, and also, I will say, in a great degree by others, whom, to avoid any cavil, I will distinguish merely as parties who were looking for constitutional relief. Several of the parties engaged in these disturbances were in a state of outlawry, and amongst the parts of Ireland so disturbed, and in which many of these outlaws were to be found, was the neighbourhood of Doneraile. Against many persons there informations 598 had been sworn, and they were, I believe, capable of committing any crime whatever. There resided in that neighbourhood a Magistrate, Mr. Bond Lowe, a courageous and an active Justice of the Peace, who, in the discharge of his duty, attempted to apprehend these bad characters. The consequence was, that conspiracies were formed against his life, and not only was he threatened, but actual attempts were more than once made to carry the threats into execution. Other parties were involved in these conspiracies, but I fear it will turn out that those who were thus involved became so through the means of persons whom the magistrates employed; for, after the year 1821, a certain Patrick Daly was taken into pay by certain magistrates in the neighbourhood of Doneraile, who thought it fair to keep him as a spy, and receive information by his means. I will now put it to the House, whether it were likely that this man would continue to receive pay unless he made discoveries, and whether it were likely that he would not make discoveries sooner than lose his situation. This is the man for whose deposition I am about to move. The House should be aware, that on or about the 20th of January, 1829, when Dr. Norcott, a physician, was returning from a party with his daughter, the carriage in which he rode was fired at, and his coachman wounded in the shoulder. That attempt to murder was made on the 20th of January. Another conspiracy, having the same object, that is, murder, in view, was entered into on the 28th of February. Mr. Bond Lowe it was determined should be murdered on the 2nd of March, and I wish the House to be made aware that Daly, the Magistrates' hired spy, gave no information to any living person of this affair in time to prevent the fatal consequences which it threatened. The ruffians put this plan into execution at a place called John's Wood, and on that occasion, although Mr. Lowe escaped, his horse was severely wounded in the shoulder. The next date in the history of these black events is the conspiracy of the 27th of April, when it was agreed to way-lay and shoot Mr. Lowe on the 2nd or 3rd of May, and a place' called Bathskreen was selected for the purpose of carrying the design into execution. The life of Mr. Bond Lowe was then again attempted, but the presence of his friend, Mr. Nagle, whom the conspirators were unwilling to injure, saved his 599 life, and prevented them even from making the attempt. Unquestionably a conspiracy to murder certain persons existed, and it is no less true that spies were hired by the magistrates, but those spies, instead of denouncing, fomented the conspiracy. At length the informer took a high flight in the objects of his denunciation. Amongst other respectable individuals whom he sought to implicate in these designs was Mr. Daniel Clancy, of the town of Charville, a Magistrate, and as respectable and amiable an individual as can be found in the community. Persons named Leary, Connors, Murphy, and Burke, small but respectable farmers, were also implicated. Of these Leary was convicted, Connors was acquitted, Burke was acquitted, and Murphy was not tried, but was discharged from the prosecution altogether. I implore the attention of the House to the situation of these innocent persons, (for of Leary's innocence I have no doubt) thus charged with these horrible offences, and involved in the guilt of those with whom they had no connection. I cannot conceive any men more worthy of the compassion and commiseration of the House. I beg to call the attention of the House to the characters of these individuals. They were small farmers—men of industrious habits—men of respectability, and the more deserving of admiration and sympathy, as they had raised themselves from a more humble lot by the exertions of their own hands. And let me tell this House, that it is most important that persons of that character should be protected in Ireland, because, wherever they abound, Whiteboyism declines. Those farmers have something to lose, and are therefore the friends of good order; the Whiteboys consist of those who are utterly destitute. I was counsel for those men, and I am not ashamed to say that my heart's best feelings were warmly enlisted in their cause. And I was the more interested in their fate, because Leary was found guilty on the first day, when I was not present, and his conviction added greatly to the danger of the others. I wish to say that I do not mean to cast the slightest imputation upon the Juries which tried those persons. The first was exclusively Protestant, and returned a verdict of guilty against Leary, rightly considering the evidence before them, but perhaps too rapidly, considering the character of the informer. On the second 600 Jury there were five or six Catholics. The major part of these were for conviction, being more or less convinced of the guilt of the accused; one man, a Catholic, was for total acquittal—he was opposed by his brother Catholics, but he held out for two days, when one of the Jurors became ill, and they were all dismissed. The third case came on, and Catholics were entirely excluded from that Jury. It was exclusively Protestant, and almost instantaneously acquitted the prisoners. In consequence of this verdict, Leary, who had been convicted, was respited; although the Judge had intimated to him that his case was hopeless: he was not executed—he was transported; and it will be a subject worthy of future consideration whether that punishment might not be considered incommensurate with his ambiguous guilt. On the third trial I come to Patrick Daly, the principal witness for the Crown, and I shall state how the acquittal on that trial was obtained; Patrick Daly had been for six or seven years a spy for the magistrates, and he swore that Leary, Connors, Murphy, and the other conspirators, had determined to murder Bond Lowe, on his return from the fair of Kildorrery; that the conspiracy was concocted in a tent, and that all these persons were present when a death-warrant for the murder was written out, and signed by them, the chief conspirators or committee-men. The murder, he said, was to be perpetrated by the Kildorrery-men, because they were on the spot, and might get home undiscovered. This was not a very likely story, particularly as the witness had previously stated that the murder was to be committed in open day. Mr. Baron Pennefather, during the cross-examination of the witness, handed me the depositions of this same man, taken before the magistrates on the 29th of April, 1829. That was in the interval between the conspiracy and its execution, but in the depositions not one word was said of the death-warrant being signed in the tent, or of the other facts to which he swore on his trial. I now put it to the consideration of every Member of this House, could that individual have sworn the truth when giving his depositions, and not have mentioned this fact of the death-warrant, and of the fair of Kildorrery? If the evidence on this point were true, the depositions must have been false. But these depositions and informations are part of the secrets of 601 the Crown in Ireland. In England, it is true, an accused individual is informed of the details of the charge against him; but in Ireland, he seldom knows any thing of the matter, unless by surmise, or except he be guilty. Sir, in this case, the result of the production of these depositions was, that the accused man was at once acquitted. And here I complain that the leading counsel for the Crown held in his brief that very document, and at the very moment when he was seeking the capital conviction of the men who were at once exculpated by its production. This is a question of propriety, but I cannot acquiesce in the justice or humanity of withholding a fair chance of exculpation from an unfortunate wretch, when trembling on the very brink of eternity. On this principle I have acted in my own cases. I am not often the prosecutor, but where I am, I repudiate such evidence as I have just noticed. I could not think myself justified in seeking a conviction where I did not feel perfectly satisfied as to the guilt of the accused. If this be the duty of a private professional individual, how much more imperatively is it the duty of the professional advisers of the Crown?—whose object never ought to be the infliction of punishment, but a fair administration of justice. There were many discrepancies between the depositions and the evidence of Daly. In his depositions he stated, that he went to the fair early in the morning; in his evidence he stated that he did not arrive there till nine o'clock. In the Court he accused William Shine of being a partner in the crime; in the depositions this man's name never occurs. But rejecting all these subordinate points, I say that the emission in the deposition of the tent scene, and the death-warrant, and all the circumstances that gave to the evidence the colouring of facts, was a fatal variance that should have led any man, seeking not blood but justice, to reject Patrick Daly's testimony. Again, Sir, then I complain of the suppression, on the part of the Crown-counsel, of that which the Judge thought it his duty to produce. I will do him the justice, however, to admit, that he had on that occasion the assistance of three learned gentlemen of the Irish bar, Mr. Serjeant Goold, Mr. Bennet, and Mr. Green, whom I take it for granted were aware of the contents of these depositions. To the characters of Mr. 602 Bennet and Mr. Green I willingly bear my testimony; more humane and excellent gentlemen cannot exist. On the testimony of Mr. Serjeant Goold I will not rely, because he has been known to express opinions on this subject which went much further than suppressing such a document. But if gentlemen will maintain the legality at present, of this method of looking at evidence and depositions, surely they will concur with me in introducing a bill into this House, the object of which shall be to correct so objectionable a mode of proceeding. In the conduct of this trial, the learned Counsel said, that he could corroborate the testimony of Daly by the production of a boy of the most unbiassed feelings and unimpeachable veracity. What was the fact? This boy, it was said, had been actually introduced by Daly into the tent on the occasion of the alleged conspiracy at the fair, and had been directed by him to observe the writing and signing of the murder-warrant. Yet, I ask, did Daly state this fact in his deposition. He alluded neither to the person nor the act. I call, then, for the papers containing the depositions of this Daly. I call on the House to support me in my demands, by the claims of humanity—by the anxiety—the suffering—the agony—which that unfortunate accused but acquitted individual endured in the dock, where he so long stood on trial for the life which a perjured miscreant was swearing away. I never quarrelled with Government for these prosecutions. If the commission was expensive, it had the effect of restoring to liberty, much sooner than they otherwise would have been, many innocent men; I only blame the conduct of the leading counsel respecting the depositions I have alluded to. Such is my case—all I ask for is, these depositions, and the notes of the learned Judge who conducted this trial. Is it intended to produce these documents? I have been taunted on this subject. I now ask those who have taunted me, and those who have applauded them, whether they will meet the question fairly, and accede to my demand? I ask also for the notes of Baron Pennefather—and here I cannot avoid bearing testimony to the admirable demeanour of that excellent Judge. I feel happy in paying a just tribute to the companion of my youth, but who has been raised by his merits to a station far above my humble walk; but never in 603 any country or time, has the Bench been graced with a more admirable union of erudition and humanity. With his notes I should feel satisfied, but, to avoid any invidious feeling, I extend my application to those of both Judges who presided at the Commission of Doneraile. Why do I ask for these documents? Because I wish to have the best evidence to produce to the House in support of my statement. I wish to produce testimony "omni exceptione major." I am to be told perhaps that an application for a Judge's notes is novel. I know that I have high legal authority opposed to me on this point—the authority of a man whose independence and extensive acquirements in his profession I sincerely admire, though I differ from him in political feelings. But I beg the House to consider, that in every case which occurs at the Old Bailey, or at the Sessions throughout the country, which is laid before the Privy Council, the Judge's notes are called for and submitted without the slightest exception. If, then, these documents are at the command of the Executive, I ask, can there be any difficulty in submitting them to this House? The Judges themselves are constantly in the habit of calling for each other's notes. When the Lord Chancellor or the Master of the Rolls direct an issue, they familiarly call for the Judge's notes. Why, then, should there be such difficulty when this House requires them? And am I not justified in calling for the highest evidence in this case? Is it fair to meet this case by merely canvassing Daly's evidence, without the documents? I submit not. I say that every Member of this House should have the details of that evidence in his hands. I have been reproached with not having introduced the subject sooner. I confess I feel regret that it should be necessary for me to introduce it at all. I did wish that the subject might have been buried in oblivion, with all the angry feelings to which it has given occasion: but, as far as regards delay on my part, I have only to say, that I could not bring the subject forward with propriety until after the late Cork Assizes. One of the men involved in the Doneraile conspiracy was then tried, and it was not prudent to enter on this case until his fate was decided. If I felt impelled to agitate this matter at all, it was because I had occasion to observe and to regret, that 604 certain invidious distinctions had not as yet been suppressed—because I was compelled to witness political and religious differences perpetuated in some degree by those who ought to have been the first to stifle them for ever. Thank God, however, those distinctions are now gradually and inevitably, and in spite of the exertions of the evil-minded, subsiding! Thank God those differences which have separated man from man are fading away before the operations of that glorious measure to which I hope I may be considered to have contributed in some humble degree, even though it were through the means of excitement and agitation. I have indeed been taunted with agitation and exciting the peasantry to acts which would have risked their being put to death by the King's troops; but I will appeal to my acts to shew that the whole endeavour of my life has been to impress upon the people the folly and the danger of any connection with Whiteboys, or any other illegal associations: that I have succeeded is proved by that powerful combination which became too strong for resistance, and I trust that there are none present who now regret the result. I have moreover submitted this Motion to the House on public grounds, and on those only, and if in the course of what I have stated, any word of acrimony has fallen from me, I regret it, for my wish is not to renew irritation, but to pour oil upon the wounds of my country. Mr. O'Connell then thanked the House for its great indulgence—for the silent attention and exceeding courtesy with which it had heard his observations, and concluded by moving "That there be laid before the House copies of any Depositions or Informations sworn by Patrick Daly, the witness at the Special Commission held in Cork in October last, relative to certain conspiracies to Murder, wherewith Edmond Connors and others were charged on that occasion; and also Copies of the Notes of the Judges who tried those cases."
§ Mr. Doherty
said, that if the hon. and learned Gentleman had occasion to apologise to the House, and to thank the Members for their patient attention, he sincerely felt that he himself had much greater occasion for their indulgence, compelled as he found himself, to enter at considerable length into all the circumstances of those trials, the hon. and learned Member had 605 brought under notice. It was with great sincerity, he said, that he regretted to be obliged to go into a statement of the circumstances of this case. If the question involved only his personal character—though never was a charge made more serious or more affecting the character of a professional man, than that of knowing a witness for the Crown to have sworn falsely and to be perjured; and yet with all that knowledge, permitting him to go on in giving testimony that affected the lives of men on their trial—if this were a question affecting his personal character only, he might be less anxious about it, although well justified in taking all means to repel the charge; but he had to defend the administration of justice in Ireland from the charges brought against it by the hon. and learned Gentleman. In doing that he should be obliged to travel through a wide range of facts and circumstances; but he would condense the case as much as possible; and he assured the House he would keep within the limits of moderation. There was, indeed, no cause for personal irritation, and he should be inexcuseable if he infringed those limits on the present occasion. He stood there to defend the administration of justice from a charge most singular in its nature, and to resist a Motion for which there was not, and he trusted never would be, a precedent. He did not deny that he felt an indignant, and he hoped a just sense of an attempt made, for the first time, to establish an appeal from the Judges and Juries of Ireland to that House; calling upon it, without the benefit of hearing witnesses, without the power even of examining witnesses upon oath, to review and perhaps to reverse the solemn decision of a Jury and a Judge, deliberately formed after a patient examination on oath of all those who could give evidence on the matter. That he trusted the House never would do. It never would erect itself into a court for reviewing the criminal decisions of the Courts of Law. Yet to such a Motion was he then called on to speak, though he had thought a charge was to be brought against himself directly and exclusively for his conduct in the case, in having gone on with the examination of a witness, whom he knew to be perjured, in order to get, at all events, a verdict against the prisoners. The hon. and learned Gentleman had, however, gone more extensively into the case, and on account of some supposed culpability in the law-officers of the 606 Crown, had fastened an accusation against the whole administration of justice in Ireland. With the Special Commission then appointed he had nothing to do—whether that commission were wise and expedient or not, he was not called upon to say; but it was due to the justice of the country, and to the respectable gentlemen against whose lives the conspiracy was formed, to investigate the facts. When the special commission was sent down, he, as Solicitor-general was also sent by the government of Ireland to conduct the trials. He knew nothing of that part of the country before—was never before in it, and was unacquainted with its magistracy. When he reached Cork, he and the respectable gentlemen who were with him, they set themselves to work diligently before the trials to examine the witnesses for the Crown, and in stating to the House the course he adopted, he should be able to show how futile and groundless was the charge brought against him. The hon. and learned Gentleman had probably led the House to believe that the accusation of the prisoners, and the principal case against them rested wholly on the evidence of Patrick Daly, the accomplice. There were other witnesses, not accomplices, who confirmed his evidence in every point, and the Jury, after a minute charge from the Judge, Mr. Baron Pennefather—and he concurred in the praise bestowed upon that learned person by the hon. and learned Gentleman—after a minute charge from the Judge, and after due deliberation, the jury brought in a verdict of guilty upon the first day, and that, too, although the judge had on the bench before him, the important document, for a copy of which the hon. and learned Gentleman now called. What he was accused of withholding from the jury was, the depositions of Patrick Daly, but that very deposition was before the judge when he tried the first case, on which a conviction ensued, and the judge had not felt it his duty to call the attention of the jury to it. Nor was it necessary, for there was nothing-essential to the case in it; but anyone who heard the hon. and learned Gentleman would have been led to believe that this was some secret document, over which he (Mr. Doherty) sat brooding, regardless of those lives which, by its non-production, would have been sacrificed. He maintained, that without that deposition there was evidence enough to convict the pri- 607 soner, although from that deposition on a succeeding day the Judge saw enough to direct the acquittal of another prisoner. What were the facts? At the fair of Rathclare some gentlemen of the county were marked out, and decreed to be murdered. One was Mr. Lowe, for being an active magistrate. A second was Mr. Creagh, for being a severe landlord. A third was Admiral Evans, for having made a speech in that House against the Catholics; he forgot who the fourth was. That a conspiracy should be deliberately formed against the lives of gentlemen in this country for such causes, and that by men in a good condition of life, deserving the style of Mr. would be surprising; but it was not at all surprising in Ireland—men above Burke and Leary in rank, were in that conspiracy. At the last assizes for Cork, one of the parties who was before put upon his trial, was again tried and capitally convicted of the offence by the same Judge, Baron Pennefather, who presided at the special commission, after the depositions were known, and after they had been commented on by the hon. and learned Gentleman, and convicted by a merciful jury, which recommended him to the clemency of the Crown—not on account of anything connected with the case, but on the ground of the state of the country having become tranquil. He had then before him a note of the Judge's charge, and he told the jury, properly told them, that if they believed that the fact of the writing in the tent, had by any accident been omitted in the depositions, it ought not to weigh against the testimony of Patrick Daly, and that if they believed the confirmation supplied by Owen Daly, they would do right to convict the prisoner. The prisoner was found guilty; and after that he would ask if there were any grounds for censuring the officers of the Crown for not producing the depositions, when it was not possible to put them into the court as evidence. The hon. and learned Gentleman took credit to himself for not having made this charge before the trial at the last Assises, from fear of exciting a prejudice. Any body conversant with the administration of justice must know that pending any trials it would be wrong to agitate a question that affected the justice of a case. The hon. and learned Gentleman must know, every man must know, that trials had frequently been postponed when a prejudice concerning them had been excited 608 in the public mind. But if the hon. and learned Gentleman refrained from exciting prejudice by a speech upon the subject in that House, he did not observe the same moderation in Ireland; for in that very county where the trials occurred, in Cork, he made speeches upon the subject at popular meetings and at a public dinner. The hon. and learned Gentleman did give the benefit of his talent to the prisoners, in whose fate he might with propriety be warmly interested, and he had a triumph in their acquittal; but what cause of triumph could he (Mr. Doherty) have in their conviction? he who went down merely at the desire of the Government to conduct the investigation. He did not triumph, and he had no motive for triumph. He, who was now charged with having held back evidence that was favourable to the prisoner, was also charged with having produced evidence that was too favourable to the accused. The hon. member for Clare had taunted him in open court at Cork with producing on the trial for the Borrisokane affair, evidence which led to the acquittal of the accused. The Rev. Mr. Spain, the Roman Catholic Priest of Borrisokane, after telling him what evidence he should produce against the police on that trial, cautioned him (Mr. Doherty) not to produce Dr. Hessic by any means, for he would give evidence favourable to the police; but after the examination of the other witnesses, he put Dr. Hessic into the box as he saw the whole affray, and was a gentleman of education, and without any connection with either party. He proved that the people made a violent attack on the police, and in consequence of his evidence the police were acquitted of murder. Had the jury heard no other witnesses than those brought forward by Mr. Spain, they must have convicted the accused, but the evidence of Dr. Hessic, which was important, satisfied them of the innocence of the police, and for bringing forward that gentleman's evidence he had been openly taunted in Cork, for that, he had been slandered by the press of Ireland, and in public speeches made in that country; for that, obloquy had been unsparingly heaped on him, though he should have neglected his duty had he not summoned that witness. The head and front of his offending was, that the policemen were acquitted. If one man was convicted in Cork, was he to blame? Then if one 609 prisoner was acquitted, was it to be said that he should not have been put on his trial, and was he (Mr. Doherty) to be taunted with calling witnesses to inquire into his guilt or innocence? Did the hon. and learned Gentleman deny that there was a conspiracy at all? Why, strike out the evidence of Patrick and of Owen Daly, and yet there was enough in point of law to support the conviction. Was this conspiracy all a mere bubble? Was not Mr. Lowe fired at? Was not Dr. Norcott's carriage fired at by some mistake, because his servant wore the same livery with the servant of one of the gentlemen whose life was conspired against? Was this conspiracy got up to put innocent people on their trial? The hon. and learned Gentleman had declared the evidence given of the writing of the paper in the tent at the fair, decreeing death to Mr. Lowe and the other gentlemen to be absurd; but the fact of the writing in the tent was proved by other witnesses beside Patrick Daly. It was proved by Owen Daly, who seemed unconscious of its import; and it was proved by Garvan on his cross-examination, who stated that it was an engagement that a cow about to be sold should give so many quarts of milk—but the fact of the writing was proved. The fact of the conspiracy was not attempted to be denied; it was proved by the intimation given to Mr. Lowe's steward, who was intreated to get his master home from the fair of Kildorrery, lest he should be murdered. It was proved by the firing at Mr. Lowe,—by the attack on Dr. Norcott's carriage, which was mistaken for that of Admiral Evans, and which had nine bullets sent through it. The meeting of the four committee men, as they were called, at the tent in the fair at Rathclare, was proved; the writing between them was amply proved, though the nature of what was written was only known by the testimony of Patrick Daly. He begged to call the attention of the House to some more facts connected with the case. Burke, one of the four persons accused of the tent conspiracy who was tried for it, and acquitted,—he thought very properly acquitted,—for want of corroborative evidence,—would have been a competent witness at the subsequent trial: he was at Cork during that trial—he went to the office of the attorney for the prisoner, but the counsel for the prisoner never called him as a witness. What was the inference from this? Was 610 it necessary for him to point it out? The Judge noticed it—the Jury were struck by it, and it had some influence on their verdict; for had Burke been produced, he could have disproved the whole story of the writing in the tent if that had been an invention of Daly's. The hon. and learned Gentleman took credit to himself for the manner in which he had brought forward his motion,—to that he did not object, it was his duty to bring it forward if he thought a public officer had neglected his duty, or discharged it in an improper manner. That hon. and learned Gentleman would have been unworthy to be the Representative of a free and brave people had he hesitated to drag any public delinquent, though he were his own brother to the bar of public justice. He did not by any means object therefore to the hon. and learned Gentleman preferring this charge against him in Parliament. But what he did object to, and what he decidedly protested against was, that the hon. and learned Gentleman had cast the most unfounded imputations upon him in his absence elsewhere, and had attempted to excite public prejudice against him in Ireland. In that country the charge that public justice was not fairly administered never failed to produce fatal consequences. Nothing could be more unjust than the imputation that he had shown himself callous to the fate of the prisoners at Cork. When, in consequence of the absence of the hon. and learned Gentleman opposite, who was to defend them, they stated that they were not prepared to go to trial, he (Mr. Doherty) offered either to furnish them with two of the most eminent counsel that could be procured, or to postpone the trial till the hon. and learned Gentleman might find it convenient to attend. He readily admitted the great skill of the learned and hon. Gentleman, and therefore it might have been of some disadvantage to the accused persons that at the first trials they had not the benefit of the learned Gentleman's assistance, but he was at the same time sure that the prisoners received very able assistance. The trials closed with the acquittal of Burke. Not on account of the production of the depositions, as he believed, for they were throughout the trials in the hands of the Judge, but on account of the evidence being insufficient to justify a conviction. At the close of the trials there was in the Court-house much triumphant remark on 611 the alleged discrepancy between the depositions and the evidence; the counsel for the prisoners had undoubtedly a right to take advantage of it, but his own conduct was guided by principles different from theirs. In his opinion, the discrepancy was of no moment, and he had, as an advocate for the Crown, done all he could fully and freely to elucidate all the facts of the case. To shew the House how he felt on such a matter he would with its permission read a short extract from a Speech which he made at Clonmel at the trial of a prisoner for murder. On that occasion he stated what, in his opinion, was the proper course to be pursued by the counsel for the Crown. His words were these:—"My Lord; I state this publicly and openly, in the presence of these two professional gentlemen, in order that I may be contradicted or set right if I have mitigated or not accurately detailed what occurred, and for that purpose I again repeat, that I did on the former trial state the facts from a brief prepared by the able and diligent professional persons concerned for the friends of the deceased. I did call all the witnesses whom those gentlemen thought necessary, and if the trial were to last for three days, they shall have every witness produced and examined with whose name I have been thus furnished, and I will take every suggestion from them which they shall offer to me, calculated to probe this melancholy and disastrous occurrence to the bottom; they will be taken in the same spirit that the Crown Solicitor has this day taken the only suggestion that has been offered by the same person who furnished this brief; only one suggestion with respect to the jury was given, and that was at once acted on, by setting aside a person whom Mr. Lanigan expressed a wish not to have on the jury, though no cause of challenge was assigned, and therefore I wish to be distinctly understood, that nothing which can be done in fairness for the satisfaction of the friends and relations of the deceased, and to convince them fully that they have had free access to this court of justice for a full and impartial investigation, shall be omitted or neglected by me, but I must recollect that I have another duty to perform. I will not content myself with putting forward all the evidence these parties desire to produce; I shall not stop there; I shall produce every witness whose evidence, in my opinion, can tend to elucidate this case. 612 It is not for me to conduct this prosecution as though I were playing some game in which I was at liberty to resort to skill, dexterity, and stratagem, for the defeat of an opponent; I cannot forget that the life of perhaps an innocent individual is at stake: it is not for me to procure a conviction by the production of some witnesses and the withholding of others. I appear here to conduct this prosecution on the part of the Crown, which is surely at least as much interested to protect the innocent as to punish the guilty. It is not by giving a garbled, partial, or imperfect view of the facts of the case to the jury, that I should perform my duty. It is, I conceive, my duty under the peculiar circumstances of this case, on the one hand to produce all the witnesses whom the friends of the deceased may desire; and on the other, to put upon the table every man who I believe can throw any additional light on this unfortunate transaction. The proposition which I have at these assizes for the first time heard, is indeed astounding, that it is the duty of the Counsel of the Crown to produce those witnesses only whose evidence goes to convict the prisoner, and to withhold others who, to his knowledge, had as good or even a better opportunity to witness the transaction, trusting to the chance of the prisoner being able to produce those whose evidence would tend to exculpate him from the offence with which he stands accused; nothing can, in my opinion, be more shocking." That statement was made at Clonmel two months before, and on the principle there laid down he had acted throughout the whole of the proceeding to which the attention of the House had been directed. Was it likely indeed, knowing, as he did, that his conduct would be watched and scrutinized, that it had been in fact arraigned, that he should depart from a rule he had laid down, and wantonly misconduct himself as the hon. and learned Gentleman had described. The hon. and learned Gentleman had accused him, but that he had behaved as the hon. Gentleman described, either at Clonmel or afterwards, he denied. When he knew that the hon. and learned Gentleman had his eye upon him with no friendly intention, was it likely that he should have pursued that base course which he had himself denounced. The hon. and learned Gentleman seemed by his gestures to dissent from his observations; if by that the hon. and learned 613 Gentleman meant that he had not imputed misconduct to him (Mr. Doherty) at Clonmel, he must take the liberty of reading part of a speech attributed to the hon. and learned Gentleman, and said to have been delivered by him at Carrick on Suir, on October 1st, 1829, and that would, he thought, show the House that, his assertions were correct. "In Ireland," said the hon. Member, "Catholics had learned a double distrust—a distrust of closed investigation or open trial—they had seen on the jury Orangemen arrayed against them in judgment, and like the wretch who is drawn to the gaming-table, where loaded dice await to decide his doom, he had seen the Catholic stand before them in the inauspicious hope of obtaining justice. More than once he had stood out to defend the victim; more than once he had beheld him trampled on and stained with Orange pollution. What man would not view with suspicion the administration of justice who had witnessed the late trials in their county? He did not know what Mr. Solicitor General had said, but he knew what the Rev. Mr. Spain had said. He (Mr. O'Connell) had given up important business to come and prosecute on that trial, but he would not have been the persecutor as well as the prosecutor although a silk gown flowed not on his shoulders; but this would be a subject of parliamentary inquiry, and the Solicitor General would be called on to answer for it before the House. He knew the defence that would be made, but the nation would know the truth." Was it right that the hon. Gentleman, who had the power of dragging him to the bar of the House of Commons, should thus arraign his conduct before a population ever more inclined to act from impulse than reason, and who were unfortunately too apt to revenge either real or supposed injuries on those whom they imagined had done them wrong. He would then beg leave to quote part of a subsequent speech of the hon. and learned Gentleman. The trials on account of the Doneraile conspiracy terminated on October 26th, and though the hon. Gentleman abstained from making any remarks on the course of proceedings at them in this House, he was not so chary in Ireland. There, at a public meeting, he did make them a subject of discussion. At Youghall, in the county of Cork, on November 1st, four days after the trials were over, the learned Member is said to have made the following 614 speech. "Mr. Chairman; I rise with your permission, Sir, and that of the distinguished company present, to propose a toast; it is, Sir, in connection with the Doneraile Conspiracy, for there was a conspiracy. A prominent actor in the scenes of the past week, I trust I shall not be deemed presumptuous in making a short reference to them. I watched them closely; the Commission exhibited extraordinary proceedings; it was my part to scrutinize them with a lynx-eyed closeness, and I did that which my duty imposed. Gentlemen; I shall not mix up the bench with the festivities of this evening. It would be unseemly to associate the name of Baron Pennefather in our proceedings as a toast, but we cannot be restrained from joining in a heartfelt tribute of admiration at the dignified impartiality of that learned Baron during the Commission. Justice was adhered to, and the law was administered alike to the prosecutors and the prosecuted by that enlightened judge. During the course of my examination of a respectable witness, when I questioned him what he had to allege against the character of Owen Daly, and if he had not promoted several game-prosecutions by false swearing: when, I say, I put this interrogatory to the witness, Mr. Justice Torress exhibited his ignorance of the law by refusing to permit the question to be pressed, but Baron Penne-father overruled the objection, and the question was put, and it proved of importance to the prisoners, for it exhibited that miscreant, Owen Daly, in his true light. Of Justice Torrens I shall say nothing; if I were satisfied of the propriety of a more general allusion to him here I could make it, but for the present I make him a present of my silence.
"To the conduct of the Solicitor General I shall barely allude now, but if I can procure an impartial hearing elsewhere,—and I must procure it,—I shall make his conduct, during the recent commission, the subject of a firm and solemn investigation. What becomes of the affected candour and often-expressed solicitude for public justice of the Solicitor General, when we contrast his conduct at Clonmel, on the trial of the Borrisokane cases with his recent conduct at Cork, during the trial of the conspiracy cases. In Clonmel he insisted upon the examination of Dr. Heisse on the part of the prisoners, in order that he might have an opportunity of cross-examining him, and in Cork, al- 615 though the death-warrant scene in the tent at Rathclare, must have been briefed to him,—that scene where Patrick Daly swore the murder of the three magistrates was concocted, and the awful warrant signed on the 27th, yet omitted all reference to it when swearing his informations on the 29th of April,—1 say, when the Solicitor General must have been aware of this, and withheld all knowledge of it from the prisoners and their counsel, what becomes of his parade of anxiety for public justice? Yes, the death-warrant, it was sworn by the informer, Daly,—was signed by four of the conspirators, at the fair of Knockaderry was the place appointed for carrying it partly into effect,—a few clays and the lives of several persons were to be cut short by the ruthless hands of ruffian assassins; the informer is sworn when developing the conspiracy, and the form of oath is not,—'You shall true answers make to such questions,' &c. but, 'You shall tell the truth the whole truth, and nothing but the truth;' yet, Sir, the death-warrant is forgotten, and though the swearing of the informations takes place in less than forty-eight hours after the signatures have been affixed to the dreadful instrument of death, not a word is told—at. least sworn to—in the informations. The Solicitor General knew all this: for when the Clerk of the Crown was reading the informations, the Crown prosecutor made such a marked correction to the officer, that it convinced me that the death-warrant scene was briefed to him. I hope to God that what I say will be borne on the wings of the mighty press; and that the truly independent portion of it will not fear what those in power may do, for if the Solicitor General shall attempt to muzzle that press, by filing criminal informations, I am ready and willing to meet him, hand to hand, on that ground. Gentlemen, the speech of the Solicitor General I had not the good fortune to hear,—but even as it is given in the 'Constitution', it was but the hallooing on of the country gentlemen against the wretched peasantry of the country." Was it proper—was it just, he would ask, thus to describe him? Was he who had passed his whole life among the people of Ireland—who had been brought up and lived in the country—was he, whose pursuits and avocations brought him into habits of daily intercourse with the population of Ireland, to be thus held forth as a person employed 616 in "hallooing on the country gentlemen against the wretched peasantry?" The learned Gentleman must be well aware of the promptness of his countrymen to revenge imaginary insults, and finding them thus instigated, he (Mr. Doherty) should not be surprised if they took the law into their own hands, and executed what they would suppose to be summary justice on his person, who they were thus taught to believe was their deadly foe. On one of the trials at Cork, a juror refused to find any person guilty on the evidence of accomplices; and in consequence of his obstinacy, the Jury was discharged without giving any verdict. What, however, could the English Gentlemen in that House, who were in the habit of seeing judicial inquiries calmly and dispassionately conducted—what could they think of the hon. and learned Gentleman, in proposing as a toast, at this Youghall dinner, the health of "the Juror who dissented from his eleven obstinate colleagues?" The Juror might have dissented upon conscientious grounds, but was he on that account to be placed in direct contrast with his colleagues as an object of praise and adoration? If such a principle as this were to be adopted, there would be an end altogether to the pure and unbiassed administration of justice. The Juror might be wrong or he might be right, that he was conscientious there was no doubt, but to single him out for applause, was to pronounce a severe condemnation on the eleven who differed—conscientiously differed—from him. On the next trial, half the jury were Catholics, and he had been accused of doing wrong in challenging some of these Catholic Jurors, but he had never rejected any person as a Juror on the ground of his religion. So far as regarded the trials at Cork, he could prove this fact from unimpeachable testimony—the testimony of the Crown Solicitor—a gentleman of the highest honour and respectability—and who was at that moment within hearing of what he stated. His instructions to the Crown Solicitor were, to reject no person in consequence of his religion, while, at the same time, he told him his wish was, that one-half the Jury should be Protestants and the other half Catholics. Was it to be supposed that he, who had invariably proved himself the consistent advocate of the Catholic claims, could for a moment have acted in the manner represented by the hon. and learned Gentleman? In the 617 year 1825, when the hon. and learned Gentleman was asked, before a committee on the Catholic Question, whether he thought, if that question were settled by concession, any reference would in future be had to the difference of religion between Protestant and Catholic; the hon. and learned Gentleman answered decidedly in the negative. Why then did he now act in direct contradiction to that opinion, and endeavour to perpetuate this invidious and odious distinction? He would next notice another part of the hon. and learned Member's speech, at Youghall. The learned Member went on to say:—"Gentlemen, the absence of the tent-scene was a negation,—you have it now,—the conspiracy is blown up—its ramifications are exposed, and its real authors stand exhibited to the world. The Jury sworn on the first day, without any hesitation convicted the prisoners. It was not considered too hazardous to permit the next case to be tried by a mixed Jury, and accordingly seven Protestants and five Catholics were empanelled. One of these twelve refused in to to to believe the informers. They all agreed to acquit Barrett—nine to three formed the majority of the Jury on another prisoner: one to eleven was exhibited as to the fate of the remaining two; you Edward Morrogh are that man you steadily held out in your opinion, that no confidence was to be reposed in those informers; the eleven were of a different opinion, and you have been the honoured instrument of Heaven in saving many lives. The third trial came on; two decent-looking men stood at the bar of the dock, arraigned for the dreadful crime of conspiracy. Out of 300 names that were called, we were only allowed forty challenges—and when I had arrived at my thirty-ninth challenge, there was not yet a single Protestant sworn. Immediately the name of Richard Deasy was called, he was challenged by the Crown—William Power, and he was challenged—and William O'Sullivan, and he was challenged; a Protestant appeared, and the jury was completed." The hon. and learned Member cheered; did he mean that a Catholic never was to be challenged—that a man living in a thatched hut, in a remote district, in which outrages had been perpetrated, was never to be challenged, because he was a Catholic [Cheers.] If the hon. Gent's cheer meant anything—it meant that whatever might be the disqualifications 618 of a Catholic on such a trial, he was not to be challenged. Whatever the learned Gentleman might think, because three Catholics were consecutively rejected, he could not accede to his doctrine that no man was to be challenged who happened to be a Catholic. In justification of his own general conduct, he begged to be allowed to state what had passed between him and a gentleman who stood by his party so long as there was any necessity for distinguishing Protestants and Catholics by such appellations, but who had forgotten political animosities when all distinctions were merged in equal participation of common privileges. He alluded to Mr. Sheil. That learned gentleman, on the Borrisokane trials, had expressed his regret that the leading names on the Sheriff's panel were Protestants, and recommended that those names should be struck off until the Catholics at the bottom were placed first, in order to create an impression amongst the peasantry that they would be certain of having a fair measure of justice. To this he had replied, that the strictest impartiality should be exercised, and that no party should have cause to complain of an exclusive selection to the prejudice of any. But to go on with the hon. and learned Member's speech at Youghall. "With a jury, he said, composed of Protestants the case proceeded, the same story was told, and were proceeding when Baron Penne father discovered the important discrepancy between the information of Patrick Daly before the magistrates, and his then examination before his Lordship,—the bubble burst, and the children's house was blown to the winds. After having deliberated for five minutes, the Protestant jury acquitted the prisoners, they disbelieved the informers, and the commission was at an end. Oh, Edward Morrogh, while trial by jury shall be respected throughout the world, your name will be revered, you will have your reward in the approval of every good man, the fathers, brothers, sisters, wives, children, at twenty, nay, fifty, will bless your name, and many an infant yet unborn will be taught to lisp the name of his father's, his grandfather's, preserver, Edward Morrogh." If the children were to be taught to bless the names of those who found every accused man innocent, and if juries were to be empanelled under an impression that they would be the objects of the people's curses, if ever they found 619 men guilty of a conspiracy to murder—there must be an end to the administration of justice by juries in Ireland, and the hon. and learned Member might laud himself for teaching the people a doctrine that must end in the subversion of trial by jury. The hon. Member went on to say, in his famous speech at Youghall, "Twelve honest Protestants confirmed his verdict, and the whole fell to the ground. 'Tis true, Dr. Norcott's carriage was fired at, 'tis true, Mr. Lowe was fired at. But were not hired spies sent about the country to excite the deluded peasantry to bloodshed and rapine, and is not this a trumpet-tongued lesson to those whose restlessness at their country's quiet is too manifest—not to trust in spies. Yes, a conspiracy had existed, and the authors of it had nearly fallen victims to the treachery of their own instruments. I have no doubt but that the saving of the lives of so many human beings was done by the special interposition of that God who sees and knows the secrets of all hearts, and that you were made the honoured instrument in his hands. Gentlemen, I propose the health of Mr. Morrogh of Cork." He did not mean to throw any imputation on Mr. Morrogh, of whom he knew nothing, but he could not subscribe to the doctrine, that he was deserving of immortal honour, because he had steadily rejected the evidence of an informer. In that instance, Mr. Morrogh might have done well; but in a case of conspiracy, there was generally no other evidence to be obtained of the guilt of the parties than the testimony of accomplices, and there was the highest legal authority for receiving and acting on such testimony. The hon. and learned Member, indeed, objected to the evidence on other grounds; he averred that it was known to the Crown prosecutor, that the evidence was tainted with perjury, and, he contended, the prosecutions ought not to have been carried on. He believed, however, that there might be some difference of opinion between himself and the learned Gentleman, as to what was meant by perjury, for the learned Gentleman seemed to think, that to violate a white boy oath and give honest evidence to bring white boy criminals to justice, was perjury. [Mr. O'Connell intimated his dissent.] He did not make that assertion lightly, the hon. and learned Member had made a declaration on those trials which excited 620 the astonishment of the bar, and, he believed, of the bench. In the cross-examination of a witness named Nowlan, by the hon. and learned gentleman, the following passage occurred. The witness said, in answer to a question put by Mr. O'Connell—"I took my oath that I would shoot Mr. Creagh, and undoubtedly I should have done so, only for hurting my leg. I went out to kill Mr. Lowe, and only that Mr. Nagle was with him I was ready to shoot him: I would shoot twenty, thirty, or forty, of them; would rather kill the police than the king's troops. I would shoot all the gentlemen in the county of Cork, and yet I am a conscientious fellow. Counsel questioned witness here about his having perjured himself. The counsel for the Crown denied that witness did so in breaking the white-boy oath. Mr. O'Connell said, that in the church to which he and the witness belonged, the breaking of a lawful oath, or the taking of a false one, was perjury." He ought, perhaps, to apologise to the House for having detained it so long, but he thought it was due to the learned judge who presided over those trials, as well as to himself, to explain the circumstances connected with them, which had been much misrepresented out of the House. He must protest, however, against the proceeding of the hon. member for Clare, as tending to bring under the review of that House the whole proceedings of the Criminal Courts of Ireland. He had also to complain personally of the hon. Member's proceedings towards him, in not having brought before that House the accusations with which he threatened him. He had hastened over from Ireland the first day of the Session, expecting to be called, as the hon. Member had said, before the bar of the House: he had waited a day or two, allowing something for the modesty of the profession to which the hon. Member belonged: he had waited a few days more, allowing something for the hon. Member's own modesty: he had waited yet a little longer on account of his peculiar modesty both as an Irishman and a lawyer; but," greatly to his surprise, the hon. Gentleman had made no accusation against him in that House. He had then left town for Ireland, but scarcely had he arrived when he was given to understand by his right hon. friend, that the hon. Member meant to present the Petition relative to the Borriso'kane case, and 621 he was on the point of returning to London, when the hon. Member passed him on the road going to Ireland. After that, certainly he had taunted the hon. Gentleman to bring forward the case. He had provoked him to come to the contest. He had scratched him to bring him to the point; but he had found him not willing to repeat in that House, and bring to the test of deliberate examination, what he had so freely hurled against him in dinner speeches, and in speeches made at public meetings. In August last, he had been appointed to execute a most important duty by the Lord-lieutenant, and ever since that period he had been held up by the hon. and learned Gentleman to popular fury. He threatened too, to bring him before the bar of that House, and after having made all these threats in public, he said, that on deliberate inquiry, he had changed his opinion. As far as the hon. and learned gentleman could, he first punished and then inquired. It was even amusing, to notice the conduct of the hon. and learned Gentleman, when called on to bring forward his charges; he said, "Oh, you need not have taunted me in public, I would have told you in private what I meant to do." It was in public the hon. Member threatened and traduced, and it was in private that he wished to retract and deny. His declaration of war was made in the face of the country, and he asked to let that stand upon record, and be allowed to enjoy at the same time the advantage of peace with the reputation of a bold general, or merely telling his antagonist that he had no intention of hurting him. When the noble member for Northampton threw his shield over the hon. and learned Member, he could not be aware how frequently that hon. and learned Member had, out of the House, threatened to drag the Solicitor-general for Ireland to the bar of the House of Commons; but, if the House would bear with him for a few minutes, he could show that he had not in this case shown any of that pugnacious ness unnecessarily which belonged to the character of his country. The House would give him credit for the sincerity of his humble efforts in forwarding the great and healing measure of last Session, and would be aware that he had no personal hostility to Catholics. He had found himself, however, like many other Members, obliged to object to the hon. and learned Member's taking his seat in 622 that House. When the question of his eligibility under the old law came before the House, on May 18th, he had expressed himself in terms of courtesy, if not of compliment, to the hon. and learned Member. He had then said, "I need not say to you, who have witnessed the talent exhibited this day by Mr. O'Connell at the Bar of your House, how justly it entitles him to a seat in it; nor shall I reiterate my own wishes upon that subject. I am sure Mr. O'Connell would himself be extremely sorry that any one observation should have fallen here, which would mar that general good-will which now happily begins to prevail in Ireland; I trust he will perceive that, in the decision of this House, there is not an individual who approaches the question with any thing like a personal feeling against him; and from the reception he has experienced, he must be convinced that there is not one amongst those who were upon former occasions strongly opposed to the Catholic claims, who has not received him with the utmost attention." Such was the language he had then sincerely held towards the learned Member; and if he had subsequently altered his tone, he had many and sufficient reasons for doing so. He remembered the glowing picture the hon. Member had drawn in 1825, of the peace and tranquillity which would be the result of emancipation, and he contrasted that with a speech, to which his attention had been officially directed by the government of Ireland, delivered by the hon. and learned Member, as it was said, on the Subletting Act. Some time ago his right hon. friend, the Secretary of State for Ireland, thought it right to institute a legal investigation into a speech which the hon. Gentleman was represented to have made at the Josephine dinner—he did not say had made—but which he was represented to have made, and which he believed was one of the most inflammatory libels that ever was uttered. He contrasted his predictions of tranquillity with his attempts to provoke disturbances, and found ample reason to doubt the good intentions of the hon. and learned Member. If he had not uttered such sentiments, no man was so calumniated as the hon. and learned Member by the press; if he had, he ought to avow them in his place in Parliament: if he had not, he ought to be grateful for the opportunity then afforded him to deny them. In the month of 623 November last, more than six months after the Catholic Relief Bill had received the royal assent, the hon. and learned Member was reported to have delivered, in giving the toast "Ireland as she ought to be," at a dinner, a charity dinner of the Josephine Orphan Society, what seemed to him an inflammatory libel. He said, "Oh, what a land is this! and yet how ruined by mismanagement, and by direct and infamous legislation! Nature never formed such a country as this, and man never showed the baseness of his nature so much as here. Seven centuries of bondage, worse than Egyptian, have rolled over our heads, and at the end they found us more numerous, move merry, and more determined to be free [loud cheers]. What misrule could not achieve, direct legislation shall never effect. There is the vile and infamous Subletting Act—that blackest stain upon our Statute-book—a law carried by a scoundrel aristocracy, for the purpose of more effectually exterminating the people [hear, hear, hear]. If this law be not repealed, the fable of the lion killed by the mouse will be soon realised in Ireland. And will this be the case? shall this be the fact? I say it shall not! and so help me God! if the exterminators do not remove that base Statute, I would almost recommend the people to save themselves, by becoming exterminators." What a debt of gratitude did the hon. and learned Member not owe to any person who gave him the opportunity to disclaim such sentiments. If he uttered that speech in Ireland, why did he not repeat it in the House; if he did not, why did he not at once openly disavow and deny it. He expected, in conformity with the custom recognised among gentlemen, that what a man said in one place he was ready to reassert in another—that the hon. Gentleman would have taken the first opportunity in that House, either of denying those words and disclaiming them, or of repeating in that House, his objections to the "Scoundrel Aristocracy," the authors of the Subletting Act, and boldly calling on the people to stand forward in their own defence. But the hon. Gentleman reserved such language for the warm-hearted peasantry of Ireland. When a discussion had arisen on that very Act, the hon. Gentleman had deprecated any warm or angry language; and he remembered well how soft and supplicating, how piteously even he deplored any allusion to the by- 624 gone days of irritation. He wished that the hon. and learned Gentleman had been always of that opinion. He remembered, too, that, taunting him on that occasion with the difference between his language in that House and out of it, the hon. Gentleman was taken under the protection of the noble Lord, the member for Northampton shire, and the hon. Baronet, the member for Westminster, who both deprecated reviving in that House the recollection of scenes of contention, which the Act of last Session was intended to bury in oblivion. When he found the hon. Gentleman so backward to carry his threats into execution; when he found him so forward to accuse in public, and withdraw from the accusation in private; when he felt that he himself had been calumniated and accused, he had taunted the hon. Gentleman, and had provoked him to the battle. The House must be aware, that the Act of Emancipation, of which he had ever been a zealous but humble advocate, had not put an end to all disputes in Ireland. He had never expected that it would; but at the same time he begged to say, that that measure had not disappointed in any degree those who had recommended it to the wisdom of Parliament, as likely to have a tendency to suppress party and religious feuds in that country. It was the opinion of Mr. Canning, that great man, of whom he might say—Oft has his voice my captive fancy led,I loved him living, I adore him dead"—that it would have the effect of separating the rational Catholics from their turbulent associates, and that it would satisfy the just hopes of the great mass of the people, while it would create discontent among those agitators, out of whose hands it would take the population. "I should rejoice," said that eloquent advocate of concession, "in disappointing the guilty hopes of those who delight not in tranquillity and concord, but in grievance and remonstrance, as screens for their own ambitious purposes, and who consider a state of turbulence and discontent as best suited to the ends they have in view." That effect the bill had produced. It had, by taking away the causes of agitation, falsified the guilty hopes of those who sought distinction amidst trouble, and whose turbulent ambition, which could be gratified only by the violence of party contentions, was disappointed by the general tranquillity and general satisfaction, which that healing 625 Act had effected. The hon. and learned Gentleman concluded by declaring that he was ready to give the hon. Gentleman the depositions of Patrick Daly, sworn to on April 29th, but that he should oppose the Motion for the Judge's notes.
said, when he came to the House he did not intend to make any observations on the subject of the debate; but being a resident in the county in which those trials took place, and having been present at them, he felt himself bound to come forward and declare, that he cordially concurred in the statements made by his hon. friend, the member for Clare. The hon. and learned Solicitor General for Ireland, had charged his hon. and learned friend with dexterity; but had he shewn no dexterity himself? In order to bring down a few dull cheers from the benches behind him, he had gone into a variety of topics—indulged in sneers and sarcasms—and followed his hon. and learned friend through every tavern and meeting in Ireland, in order, by quoting his speeches, to excite a feeling against him. But that was diverting the attention of the House from the real question. Was it not to draw away their attention that he flung out his sarcasms against his hon. friend, the member for Aberdeen, whom the hon. and learned Gentleman designated an unlearned Member? Would to God there were a few more such unlearned Members, and then the triumphs would not be always on the side of venality and corruption. The real charge made by the hon. and learned member for Clare was, that the hon. and learned Gentleman, the Solicitor General for Ireland, when he sought to convict these men, had evidence before him which made their criminality doubtful, and on which no jury would have found them guilty. How had he met that charge? First, by throwing it off himself on the learned Judge, and asserting that he also had the depositions under his hand on the first and second trials, though he only drew the attention of the Jury to them on the third trial; and, secondly, by underrating the evidence of Daly, and treating lightly the contradictions and discrepancies between it and his depositions. He was himself present when the learned Judge handed down the depositions, and from his look and manner it appeared, that they had come upon the Court, as they certainly did upon him and the counsel for the prisoners—completely by surprise. 626 If that document had been produced to the first Jury, would the verdict have been Guilty? The hon. and learned Gentleman said, that the Judge knew of the existence of the depositions on the first and second trials, yet did not produce them until the third; but that did not appear to be the case on the trial. He could not contradict what the hon. and learned Gentleman asserted to be a fact; but his conviction, up to the present time, was, that Mr. Creagh set out in a post-chaise and four on the day before the third trial for the depositions, and returned with them shortly before Baron Pennefather handed them to his hon. and learned friend. The learned Solicitor General had tried to lessen the importance of the facts omitted in Daly's deposition; but they were of so much consequence, that two men were acquitted when the contradictions were ascertained, while others had been found guilty, on the supposed consistency of that witness. If the case were as stated by his hon. and learned friend, the hon. and learned Gentleman ought to meet the charge fairly and openly. He was the public prosecutor, and the question was:—was he justified in withholding evidence material to men on trial for their lives, as a barrister perhaps might be in conducting a civil case? In his opinion, the hon. and learned Gentleman had not answered the charge against him; on the contrary, he had made it appear worse than before, and worse than most people were inclined to believe he had acted. Prior to his defence it might have been supposed that he had not noticed the discrepancies between the depositions and the parole evidence: now he had acknowledged his acquaintance with them, and defended his improper course of conduct.
§ Lord Althorp
said, that the real question was, whether there was any foundation for a charge against the Law-officers of the Crown in Ireland having neglected to put forward a document by which the evidence of the witnesses for the prosecution would have been submitted to a proper test, and the case of the accused parties been placed in its true light. When first the hon. and learned Gentleman had approached the subject of the charge, he confessed he thought it appeared to him that he had very indirectly approached it, and the result promised to be any thing but satisfactory in the way of exculpation of his conduct. The explanation, however, 627 must be admitted to have given such a complexion to the case, that it was entirely out of his power to infer—that the conduct of the hon. and learned Gentleman (the Solicitor General for Ireland) was censurable. His opinion was, that the hon. and learned Gentleman's conduct was, under the circumstances, free from blame. It had been said by the hon. and learned Gentleman opposite, that if he (the noble Lord) had been aware of what had happened elsewhere, what had been the course pursued by the hon. member for Clare, in Ireland, and in other places outside of these walls, he (Lord Althorp) would not have taken the part which he had taken. He was, he confessed, aware of the proceedings of the hon. and learned Member, and the violent tone of the speeches he had made elsewhere—and he confessed he had heard of them with great regret; but he was not prepared to admit that, after they had witnessed the conduct and the temper displayed by that hon. and learned Member since his admission to a seat in that House, they should visit on him all that was objectionable in his speeches out of doors, or previously to his becoming an inmate of those walls. In his opinion, Members should not be assailed there for what they had done out of that House; and he believed that it would be most consistent with their duty and the public interests, to bury in oblivion whatever had occurred which might be considered exasperating. On the whole, he was of opinion the conduct of the hon. and learned Member attempted to be impeached was not deserving of censure; and he must, therefore, decline giving his support to the Motion [hear].
§ Mr. North
, in answer to what had fallen from the hon. member for Mallow, maintained, that wherever calumny was uttered, whether at taverns, at public meetings, or elsewhere, there the calumniator ought to be sought after and exposed. The hon. and learned member for Clare professed to approach the subject with great moderation; his hon. and learned friend also wished to approach it with great moderation, and what they objected to in the hon. and learned member for Clare was, that he had one tone for Ireland, and another for that House; that he reserved all his violence for one side of the channel, and all his moderation for the other. His hon. and learned friend was charged with 628 having taunted the hon. and learned member for Clare. Those taunts were occasioned by the indisposition of the hon. and learned member for Clare to bring 'forward his charges against his hon. and learned friend; and but for those taunts, he (Mr. North) sincerely believed that the hon. and learned member for Clare would not have brought forward his charges even on that night. So fully convinced, indeed, had he been that it was not the hon. and learned Gentleman's intention to bring forward his proposition at all, that it was not until the very last moment that he believed him to be serious. The hon. and learned Gentleman had tugged so long at his sword, that he (Mr. North) thought that it would never leave the scabbard; and now that he had at length drawn it, it had been parried by the strong and able arm of his learned friend, and the edge of it had descended on the hon. and learned Gentleman himself. It must be well known to every one that the situation of a public prosecutor was frequently one of great difficulty, and that while on the one hand he was called upon to listen to the suggestion of humanity, he was on the other hand bound to exhibit steadiness and firmness. Would the hon. and learned member for Clare, or would the hon. and unlearned member for Aberdeen venture to say that his hon. and learned friend had acted on conclusions not drawn from the exercise of his best judgment on the facts before him? That he had not only done so, but that his judgment was sound, had been since proved by the verdict of another Jury acting under the direction of the same Judge who had presided in the preceding cases. In the case in which his hon. and learned friend's conduct had been impugned, there had been no inconsistency, no discrepancy, no attempt at a falsification of the facts. Was the document on which so much had been said, withheld from the proper authorities? Were not the sworn information's in proper custody—in the custody of the Judge on the bench, whose duty it was, if he perceived any discrepancy between them and the evidence given in Court, to point it out to the Jury? Did the hon. and learned member for Clare so presume on the ignorance as to the law, of the Members of that House, as to forget that there were learned Gentlemen present who well knew that his hon. and learned friend had 629 not the power to give the document in question in evidence? Was it possible that the assertion, that his hon. and learned friend could have so produced it, could be made by a lawyer—by the man too who, in the discharge of his duty to the accused, would have resisted its production? The hon. and learned Gentleman said, that his experience did not lead him to conclude that the Judges in Ireland were accustomed to read the depositions. Now he (Mr. North) had had some experience of the Judges of Ireland, too, and he knew that it was the practice of four of those Judges, and he had little doubt that it was the practice of all of them, to read the depositions. The hon. and learned member for Clare well knew, that when once the sworn information's were in the possession of the Judge, his hon. and learned friend had nothing more to do with them; and that it would have been most indecorous and improper on his part, had he pointed out to the Judge the facts contained in those information's, and the inferences which were deducible from them. His hon. and learned friend, after the most deliberate inquiry—an inquiry in which he had been assisted by men of great professional knowledge, of the highest talents, and of the soundest integrity—men who were far above the hon. and learned member for Clare's attacks—men who would never deign to stoop to any unworthy proceeding, professional or private—assisted by such men, his hon. and learned friend came to the conclusion, that the witness in question was a credible witness, and that he ought to be produced to the Jury. If the hon. and learned Gentleman, therefore, was determined to charge some public functionary in Ireland with improperly conducting these trials, the proper object of his charge was the learned judge, on whom the hon. and learned Gentleman had pronounced what he, no doubt, wished to be considered a glowing panegyric. He would not trespass upon the patience of the House by entering into any of the details of the subject. Little inclined as he should be to do so under any circumstances, he was not less inclined on the present occasion, because he was perfectly satisfied that the charge against his hon. and learned friend had never been intended for that House: it had never been intended for a tribunal which would determine upon it with coolness, judgment, and impartiality, It was intended for a far 630 different tribunal. It was intended for the purpose of being used to excite and inflame the passions of that unfortunate people, whose miserable lot it had been, to be continually misled by some vain ambitious demagogue, who, for his own selfish purposes, fostered their discontents, and urged them into a course of conduct which, proceeding in turbulence, terminated in blood. That was the tribunal for which the charge against his hon. and learned friend was intended; and the different character of that House accounted for the reluctance which the hon. and learned member for Clare had exhibited to bring forward his charge there. The hon. and learned Gentleman felt that that was not his proper Court. He felt that he was not before the bar of that tribunal in which he had held a brief so long, and with such success. He had tried therefore day after day to postpone bringing it forward on one pretence or another. Sometimes he gave notice of a motion and then withdrew it; then he fixed it for a day on which he knew there would be no House. The only course, therefore, which had been left for his hon. and learned friend was, however reluctantly, to urge the hon. and learned Gentleman on by those taunts of which he had so loudly complained. Now, however, that the hon. and learned member for Clare had been compelled to bring forward his charge, he had done so in a manner very different from that in which he had brought it forward elsewhere. In Ireland he had been all fury and violence; in that House he was all submission and gentleness. In Ireland he had spoken with the Stentorian voice of a full-grown Irish giant; but in that House he had been like the little babe which he had himself described as lisping the praise of the juryman who persisted in a verdict of acquittal. In Ireland the hon. and learned Member uttered his accusations like the lofty monarch of the woods; in that House he "aggravated his voice so that he roared you as gently as any sucking dove." He could tell the- hon. and learned Member that such a course of conduct could no longer be permitted. He must adopt one of two ways. He must either be in both countries the violent disturber and agitator—the same in his parliamentary office in Stephen Street, as in St. Stephen's chapel at Westminster, or he must be the moderate 631 man in both countries. Although the hon. and learned Gentleman affected, in that House, to pour oil into those very wounds which he had taken so much pains to inflame in Ireland, his objects would be defeated. He would find, not only in that House, but throughout the Empire, and most of all he would find in that part of the Empire with which he was especially connected, such a powerful body of resistance to the double course of proceeding which he was pursuing, that he would be utterly unable to oppose it. Such a spirit of manly and generous feeling had sprung up in Ireland, in spite of the hon. and learned Gentleman's exertions to suppress it, so happy had been the result of the wise and liberal measures adopted by Parliament towards that country in the last Session, that the people of Ireland would take care not to put it again in the power of any man to heat their imaginations to the temperature of a furnace, merely that certain political salamanders might find an element suited to their constitutions. Whether the subject under discussion was considered in a political or a legal point of view, his hon. and learned friend had given a triumphant, a satisfactory, and a conclusive answer to the hon. and learned member for Clare; and he (Mr. North) felt that he should be doing his hon. and learned friend a great injustice if he detained the House by any further commentary upon the question.
§ Mr. Hume
said, he had never listened to any statement made with more temper and moderation than that of his hon. and learned friend, the member for Clare; a temper and moderation strongly contrasted by the pomposity, and he might almost say insolence of manner, of the hon. and learned Gentleman who had just spoken. He regretted to observe the cheers with which the hon. and learned Gentleman's remarks had been received by those Members who sat in his neighbourhood; for he had hoped that Ministers would have had the good sense to soothe rather than to increase any exasperation arising out of the occurrence in question. Was there a word, he would ask, which fell from his hon. and learned friend, which called for the remarks of the hon. and learned Gentleman? They might talk of his hon. and learned friend's tone and manner being sometimes like those of a lion, and sometimes like those of a puny dog; but he would not advise his hon. and learned friend to take 632 his tone and manner from cither of the hon. and learned Gentlemen. The hon. and learned Gentleman who had just sat down, and who arrogated to himself so much importance and self-sufficiency, swelled like a bull-frog, until he was in great danger of bursting. The time would come for his hon. and learned friend to answer the hon. and learned Gentleman; and he (Mr. Hume) for one would halloo him on when that time should arrive. The conduct which had been pursued towards his hon. and learned friend was most unworthy. No defence, no arguments had been advanced; but as in other cases which he had been long enough a Member of that House to witness, the attention of the House was called off to topics unconnected with the subject before them. Was it consistent with the duty of any hon. Member to make that House the arena for discussing squabbles at the Crown and Anchor or elsewhere? He denied that such had ever been the practice in that House. The question for the House to consider was, whether the hon. and learned Gentleman had conducted himself in a manner which deserved their approbation and support. Being in possession of evidence to show that a witness was unworthy of belief, did he seek, upon the testimony of that witness, the lives of any of his Majesty's subjects, without the communication of the evidence he possessed? That was the charge. Why should his hon. and learned friend be so calumniated when he had put the question so fairly '(All that he had said was, that if the course which had been pursued by the hon. Gentleman were justified by law, the Legislature ought to take means of preventing such a course from being pursued in future. If Judge Penne father had the document in his possession, and concealed it during the first two trials, a charge ought to be preferred against him; but it appeared that it was not until after the first two trials that the existence of such a deposition was suspected; and that Mr. Creagh was sent for it in a chaise and four. When it arrived, Judge Penne father handed it down to his hon. and learned friend, who, of course, immediately saw the just purpose to which it was applicable. He really was at a loss to account for the conduct of the hon. and learned Gentleman, even with all the latitude which learned Gentlemen took in their conduct. He bad been told that he was not a learn- 633 ed Gentleman. He thanked God that he was not; for sure he was, that if he had had in his power a deposition which would have cleared an individual accused of a capital charge, he must have laid it before the Court, in spite of all the etiquette to which learned Gentlemen thought it to be their duty to conform. Had that been done in this case? Would the hon. and learned Gentleman on the opposite bench get up and say that it had? But his hon. and learned friend, the member for Clare, had had the audacity, it appeared, to speak of these transactions out of doors in such language as his feelings dictated, and had not repeated his observations in that House. "Is it to be supposed" continued the hon. Member, "that because I am a Member of Parliament, and choose to go to the Crown and Anchor Tavern, and make observations there upon the Chancellor of the Exchequer, or it may be upon his Majesty's Attorney General, is it to be supposed, I say, that I am to be compelled to repeat the same observations here? I say, that if I make use of observations out of doors which give offence to hon. Members out of doors, let them call me to account for them. I admit that I say many things in this House which I should be afraid to say out of this House, knowing that there is such a being in existence as an Attorney General, and that it is possible for him to find pliant juries. I may be taunted with cowardice, as I have been already, for this declaration. But my doctrine is, that in these cases discretion is the better part of valour; and how foolish should I look, if I were to find myself laid by the heels in Newgate, owing to the interposition of an Attorney General." He then proceeded to observe, that the hon. and learned Gentleman opposite had not shown either that good sense for which he had given him credit, or that disposition to let all things go on smoothly in Ireland on which he prided himself so highly, in reading such voluminous extracts from speeches made at convivial boards, when a man was inclined, from the excitement of the scene, to speak more freely than prudence warranted, or than he might otherwise be prompted to do. He would however confess, that in all the extracts which the hon. and learned Gentleman had read, there was not one word which he should not have been proud to utter, with the exception of the last extract, which related to the Sublet- 634 ting Act. He was surprised that the hon. and learned Gentleman should have read that extract after the explicit manner in which the hon. member for Clare had disavowed it. Such a circumstance was a proof how strongly the hon. and learned Gentleman felt the justice of the observations of his hon. and learned friend. He thought that it was the bounden duty of every honest man, who supposed that a public officer had misconducted himself, to state that opinion publicly, whenever occasion called for such an expression of opinion. He contended that the way in which his hon. and learned friend had been treated by the Gentlemen opposite, for daring to express his opinions, was most illiberal. They had accused his hon. and learned friend of shrinking from his charges, as if he was afraid of their vituperation. Why, his hon. and learned friend had no occasion to be afraid of those two hon. and learned Gentleman, no, nor of ten like them. Supported by the cheers of the Treasury bench they had exceeded the discretion which they would have felt bound to exercise elsewhere. But what had really been the conduct and language of his hon. and learned friend, the member for Clare? He had stated, in his place in Parliament, that when he first became acquainted with the facts which had that night been the subject of discussion, he was led by the impression of the moment to declare his determination to bring the whole conduct of the leading counsel for the prosecution before the House of Commons; but that in the time which had intervened between his making that declaration and the meeting of Parliament, he had had some reason to doubt the accuracy of the facts which had led to the formation of his original impression. He therefore said, in the hearing of the House, that he had sent to Ireland for further information—that if that information were defective, he would disavow the opinion which he had formerly expressed; but if that information should support the opinion which he originally entertained, he would bring the matter forward in the House, openly and manfully. After such a declaration, what right had the noble and learned Gentleman opposite to taunt his hon. and learned friend with shrinking from his pledges? He wished that he could view the answer of the hon. and learned Gentleman in the same light that his noble friend below him viewed it, but 635 he thought that the hon. and learned Gentleman had mistakenly prevented facts from being brought under the notice of the Court, which, when brought before it, were found to be of the utmost importance. And why were they of such importance? Because when brought forward they threw such discredit on the principal witness as produced the acquittal of the prisoner then standing on his trial at the bar. His hon. and learned friend had not criminated the Solicitor General for Ireland, unless the facts of this case should turn out as he had stated them. He hoped that the production of the information, for which his hon. and learned friend now moved, would free the hon. and learned Gentleman opposite even from the suspicion of misconduct, and with that view he should certainly support the present Motion. He had hitherto always entertained a favourable opinion of the hon. and learned Gentleman: at present that opinion was weakened; he should be glad to restore the hon. and learned Gentleman to that favourable opinion again, but he must with old it until he gained this information.
§ Mr. Doherty
explained, that it was a mistake to suppose that the depositions were not in the hands of the Judge on the trial, and had been brought by Mr. Creagh. They were returned to the Crown-office three months before the trial. Baron Penne father had asked him if the discrepancy had attracted his notice, and it had, but he thought the omission strengthened rather than weakened the testimony of Daly, and therefore, if he had noticed the circumstance, it could not have been in any manner favourable to the prisoner.
The Attorney General
said, as he had read neither of the speeches in question, nor the trial that gave rise to them, he might be considered in the light of an impartial person, and he must, in that character, say, that the charge so calmly and moderately brought forward by the hon. and learned member for Clare, appeared to have been founded on a mistake, and that, therefore, his hon. and learned friend, the Solicitor General for Ireland, had no occasion to enter at length into his own vindication. The hon. and learned member for Clare had been influenced,—naturally influenced,—to a certain degree, by the fact of having been counsel for the prisoner; but, notwithstanding the calmness of manner with which he brought 636 his charge, it was impossible not to understand it; and, after all that had taken place, he was not surprised that his hon. and learned friend should be, to a certain degree, anxious to enter into a full explanation of his conduct, although such an explanation was not, in his judgment, necessary—the charge, as he said before, of the hon. member for Clare being founded in a mistake. The accusation was, that his learned friend, as a public prosecutor, was in the possession of a document that did not contain certain specific facts, which the witness, upon whose information it was drawn up, afterwards stated when he was examined before a jury; that his hon. and learned friend's brief must have been prepared from the examination of that witness; and that, therefore, he must have been aware,. before he came into court, that there was a variance between the deposition and his evidence. Now, if that were a sufficient ground for withdrawing a prosecution, one half of the criminal cases brought into court would never be decided. There was nothing-more common, than that the depositions taken before a magistrate should not contain a tenth part of those full and minute particulars which were extracted by an attorney when he came to institute a regular examination. The very case before the House was an illustration of the manner in which that might take place without any one being necessarily to blame. Assuming the facts, as stated by his hon. and learned friend, to be correct, it appeared, that when before the magistrate, the witness said that an order had been given for the assassination of certain persons, but he omitted to state that it was in writing, although that declaration or deposition was made within two days after the time when it was supposed to have been given. Such an omission could not surprise a professional man; for he knew that aw it ness might be ignorant that its having been in writing was a material part of the transaction, and if a witness were not asked the question, he might very naturally omit to state the fact, but it would not be correct to infer from that the unworthiness of the witness, because, upon a closer after-examination, he states it; and certainly no idea could be more visionary, than to suppose that it is necessary to withdraw a prosecution, because some even material facts were omitted in the depositions. It appeared that two 637 trials took place, in neither of which the Judge though it expedient to offer the depositions before him to the consideration of counsel, but that he did so on the third trial; and his hon. and learned friend stated, that there were many circumstances in that last case which would have afforded grounds for a decision independent of Patrick Daly's testimony; was it possible that the same Judge who tried these three causes, having the same depositions before him the whole time, would have acted in so different a manner unless there had been grounds for so doing. How then could his hon. friend be accused of any want of humanity or professional propriety in not withdrawing the prosecution, when he saw that, upon the same evidence which the hon. member for Clare supposes ought to be rejected, a conviction had taken place? In fact, he could not conceive a case more perfectly divested of all foundation of a criminal charge against the counsel for the Crown than this. Nothing but the most positive proof could establish the fact, that any man could be so wanting in humanity as to be willing to take the life of another in the manner his hon. and. learned friend was accused of doing. Such an imputation, however, if spread about in taverns, and thrown out before persons of incompetent judgment, would be likely to injure his hon. and learned friend in their estimation; although, when examined in that House, it was taken for what it was worth, and passed for nothing. He had no doubt that the hon. and learned member for Clare, when not excited by some of those concomitant circumstances which the hon. member for Aberdeen seemed to think sometimes took place in taverns, must have felt that he could not sustain the charge he had made, which accounted for his reluctance to bring it forward. At the same time he did not blame his hon. and learned friend for wishing to bring assertions made in Ireland to the test in that House, and to compel the retraction or proof of the accusation in the face of the country. The question had been brought to the test here, and every man of sense and honour must think, that his hon. and learned friend, the Solicitor General for Ireland, was free from all blame. With respect to the Motion before the House, the hon. and learned Member said, that he could not fix his charge without the papers he had moved for; but surely he must be aware 638 that his application was of a perfectly novel nature. Did he mean to bring in a bill, enacting that all depositions, taken against any person whatever, might at all times be called for by the prisoner, and should be given to him. When a person was brought up on a charge, that charge ought to be made against him in his presence; and if there were any practice in Ireland which prevented a man from seeing his accuser, face to face, before going to prison, it was a bad practice, and ought to be put an end to; but if the hon. and learned Gentleman did not mean to bring in a bill to compel magistrates to give prisoners the depositions taken before them, still less was he entitled to call upon the prosecuting counsel to do so. He was not partial to informers, and admitted that the evidence of persons willing to betray their accomplices should be looked upon with suspicion; but nothing could be more dangerous than to give to a prisoner all the information that might be derived from them. In that case, a man who had been engaged in a scheme, which had bloodshed and murder for its object, would have to do nothing but to get his companions to swear to circumstances that would completely overturn the evidence which might be brought against him; for there could be no doubt, that he who would engage in a conspiracy to commit murder, would not hesitate at committing perjury. He saw no reasons for changing the law, but as his hon. and learned friend (Mr. Doherty) had consented to the hon. and learned Member having the deposition he had called for, he should not oppose the Motion. At the same time the hon. and learned member for Clare was not at liberty to call upon the government of Ireland to give all the depositions made by this man. That would be too large a motion, to accede to it would lead to great inconvenience, and he must resist a demand for anything beyond the particular deposition of the 29th April. With respect to the other part of the Motion, for the production of the Judge's notes, he did not sec how they could contribute to the object the hon. Member had in view, and certainly to produce them would be quite unprecedented. The hon. and learned Member said, that they were of the nature of a public document. With that doctrine he did not agree; they were merely taken to refresh the Judge's memory. Some Judges took very long notes, others very short; the latter course 639 was, he believed, the best; certainly it was the most expeditious, but it would be impossible to use such notes as the foundation of any ulterior proceedings. They were not evidence in a court of law, nor could they be exhibited at the Bar of the House of Peers, in case the hon. and learned member for Clare should prevail on the House to bring an impeachment against his hon. and learned friend, the Solicitor General for Ireland. Why, then, should the House agree to a motion, which was in its nature unprecedented, and which, if granted, would not answer the object of the hon. and learned Mover? He did not mean to say, that because it never had been done, it should not now be done; but that fact was a strong argument against beginning such a practice, except a case were made out strong enough to shew that it would be impossible to do without them, or that the production of them would be very beneficial. Certainly the present was not such a case, and it would be treating the learned Judge with disrespect, to commit his meagre notes to print, taken, as they were without his knowing that it was even possible that they should ever be asked for that purpose. Although that was a more narrow ground, perhaps, than many others which he mentioned, he held himself justified, upon it alone, in refusing his assent to that part of the hon. and learned Member's Motion. He did not say, that if an inquiry were instituted, in which a learned Judge should be summoned to the Bar, the production of his notes also might not be called for; but till that time arrived, he should never give his consent to any motion of that nature.
§ Mr. D. W. Harvey
said, he could not avoid expressing his surprise at the strange construction the hon. and learned Member opposite had put upon this Motion. He had throughout his speech regarded it as an attack upon himself; but he did not look upon it in that light, nor had it been brought forward upon such grounds by the hon. and learned member for Clare. Certainly it should not have his support if it were a mere personal attack upon the hon. and learned Gentleman. That hon. and learned Gentleman had exhibited a laudable anxiety to free himself from the charges which might attach to him, in reference to this affair, but had not exactly adopted the course best calculated to establish his innocence; for he granted to the hon. and learned member for Clare a 640 document, already before the public, while he refused those papers which could alone maintain the charge, if it were well founded, namely, the Judge's notes at the trials in question. He understood the hon. and learned Gentleman opposite, the (Attorney General) to admit, that there might arise cases in which the production of the Judge's notes would be essential for the ends of justice, and in his opinion this was a case. The production of those notes was necessary for the purposes of public justice, and for the vindication of the learned Judge who presided at the trials. The hon. and learned Solicitor General for Ireland appeared extremely desirous to avoid the consideration of the actual question before the House; and he had exhibited no slight degree of professional tact in diverting attention from that question, to imputations cast upon his conduct elsewhere, by the hon. and learned member for Clare. With a dexterity too for which he deserved some credit, he had contrived to shift the responsibility from his own shoulders, and he had divided the charge between himself and the learned Judge who presided at those trials. Under those circumstances, considering the position assumed by the hon. and learned Gentleman, the House was imperatively called upon to vindicate the judgment-seat, and to afford an opportunity to the learned Judge to shew that, during the first and second trials, he was not in possession of that deposition, which, when produced at the third trial, at once procured the acquittal of the accused. He entered upon the discussion of this subject without any pretension to the learning possessed by some of the hon. Members who had preceded him; and if he thought that such professional learning were necessary in discussing this question, he would certainly have refrained from addressing the House immediately after the hon. and learned Gentleman who had just sat down—and who would be, undoubtedly, a very great authority, if the question before the House were a mere question of law. But it was no such thing. The House was not appealed to as a collection of lawyers to determine some abstruse legal question, but to determine a certain fact,—namely, as to whether the lives of persons in Ireland had not been put in jeopardy, by the counsel for the Crown, who prosecuted them, suffering testimony to be received in open court against them, which was in direct hostility 641 to the evidence given by the same witness before a magistrate in the first instance, and which evidence had been taken in the shape of a deposition. He was aware that the depositions taken before magistrates were frequently extremely meagre; that they were frequently such as would not warrant the conviction of a prisoner; and that, upon further examination, things were brought to light which led to the conviction of the accused. He could well imagine cases where the evidence given in Court, although not throughout inconsistent with that contained in the original deposition made before the magistrate, might yet be fuller, clearer, and more comprehensive. It might have happened in this case. Indeed he presumed that it did, for he did not want to impute wrong motives to any one. It might have happened in this instance, that the evidence given by the witness in open Court, when compared with the original deposition contained in the brief of the learned Solicitor General, was not at all contradictory to the statement in that deposition, but served to render it more clear, and to bring the charge more home to the prisoners. But the whole question turned on the point, whether or not the original deposition was in direct hostility to the testimony given in Court by this witness. Now, where could those facts be found, but in the notes of the learned Judge who tried the case? But the hon. and learned Attorney General said, that the more meagre the notes taken by learned Judges, the bettor for the ends of justice; that he might doubt; but he believed that it would be unquestionably more for their own convenience. He did not at all doubt that if a learned Judge were to take no notes of the proceedings of a trial taking place before him, he would be saved much trouble and inconvenience. Should his brother Judges afterwards call for his notes of the trial, he might then say,—"It is true this prisoner was called up before me and tried, but to save myself trouble I took no notes, and I have no recollection of the evidence given, unless what I might now collect from the fleeting impressions made upon my mind; for, though the man was convicted, and may be executed, it is better that he should be hanged, than that I should be put to the inconvenience of taking notes of his trial." Whenever the hon. and learned Gentleman himself should be elevated to the bench, 642 he would not follow such a course of conduct as that; but his notes would be as ample as he was sure they would be accurate. He could not avoid noticing the singular character of the discussion that evening. The House had sat to hear charges made and refuted, and the impartiality of the Members had been evinced by the loud and indecent cheers which had followed every statement of the defendant, while but a solitary "Hear, hear," had now and then proceeded from that side of the House, during the speech of the prosecutor. What would be thought of such a proceeding in the jury-box? What would be thought of a jury, ten of whom, like the Ministerial Members opposite, should loudly cheer the defendant in the progress of his address, while the other two should, from time to time, encourage the prosecutor by a solitary cheer? The House was sitting that evening in its judicial capacity, and he hoped that there was no person present who would carry such very satisfactory information to the public. In justice to themselves—in justice to the country—and in justice to the people of Ireland, the House was bound to call for the production of the evidence given in the open Court, in order that it might be enabled to compare it with the original deposition of the witness before the magistrate. The hon. and learned Gentleman (Mr. Doherty) said, that the evidence of the witness was correct—that his original deposition differed only as to points of little importance; and he contended, therefore, that it was not the production of that deposition on the third trial which procured the acquittal of the prisoners. The I proof of that fact was only to be found in the Judge's notes; the statement resting at present only on the assertion of the hon. and learned Gentleman. According to that, it appeared, that upon the evidence of the informer, the first prisoner was convicted;—that the second would i have been convicted but for the obstinacy of one of the jury,—and that up to the third trial, this deposition (which was no sooner produced, be it observed, than the prisoners were acquitted) was, with the rest of the informations, all the while in the hands of the learned Judge. If that were the case, so much the worse for the learned Judge. Under such circumstances, however, the House should call for his notes, to see whether or not such were the case, and to ascertain, whether or not there were 643 such a discrepancy between the evidence of the witness in Court and his original deposition, that if the deposition had been produced upon the first trial the acquittal of the prisoners must have followed as a matter of course. The learned Gentleman said, that this deposition was during the three trials, all the while in Court; and of course he must suppose that a copy of it was drawn out in the brief of that learned Gentleman—if, indeed, he could safely suppose anything as to the manner in which justice was administered in Ireland. He must suppose, however, that from the clear and satisfactory testimony given by this witness in Court, the learned Gentleman did not find it necessary to resort to the deposition in his brief; or, if he did, that he found no material variation in it from the evidence so given. The hon. and learned Gentleman was the Crown prosecutor on the occasion, and filling such a situation, he ought to have been influenced by an anxious desire to establish the innocence of the accused; if he found, therefore, that the evidence of the principal witness was at direct variance and hostility with his original deposition, as briefed to the hon. and learned Gentleman, he should at once have thrown up his brief. If the learned Gentleman, seeing the nature of the evidence of the witnesses in Court, felt it necessary to recur to the original deposition, and found in it nothing contradictory to that evidence in the original deposition, there were no grounds for the charge against him. He could easily suppose that the statements in the original deposition, might not be as full, and as complete as the vivâ voce testimony of the witnesses, but there should be nothing contradictory between them. Whether there were or not in the case before the House, was the whole question at issue. It was a mere question as to a simple fact—and all the buffoonery about salamanders—and all the fanciful digressions in the worst style of Irish eloquence, which had been exhibited by the hon. and learned Member opposite, had nothing whatever to do with the question. The fact to be ascertained was, whether the testimony given by the witness in Court, and his deposition before the magistrate in the first instance—differed so materially, and were so contradictory to one another, as to call for the immediate acquittal of the prisoners, who were tried for their lives on such evidence. He was anxious, there- 644 fore, that the Judge's notes should be produced, for the House was bound to vindicate a Judge of high station and character, from the charge of allowing the party prosecuting under such circumstances, to proceed in such a bloody course upon such bloody testimony. That was the real question before the House—and after what had taken place that evening, it was most important that the House should vindicate the criminal justice of the country, by instituting an inquiry, and by calling for the Judge's notes. Upon these grounds he did not think that the hon. and learned Gentleman opposite was exactly pursuing that course which his sense of innocence ought to suggest to him, for its results would be to exclude and keep out of sight the only authentic account which could be procured of the real facts of the case.—For the reasons which he had stated he should support the Motion of the hon. and learned member for Clare.
Mr. D. Callaghan
said, that having acted as one of the jurors, on the second of the trials which had been referred to, he felt bound to bear his testimony to the propriety of the course which had been followed on that occasion by the hon. and learned Solicitor General for Ireland. The jury, of which he formed one, could not agree, they did not differ as to the guilt of the prisoners, but merely as to the degree of credit due to some of the witnesses, and the gentleman who held out (Mr. Morrogh) acted, as he was well aware, from the purest and most conscientious motives. He conceived that it was absolutely necessary to institute those prosecutions at the time, and in the conducting of them the learned Gentleman did not travel out of the line of his public duty, but on the contrary, pursued a perfectly correct and humane course, and one which did not in any respect justify the charges which had been made against him.
The Solicitor General
assured the House that he should occupy its time but for a few moments with the observations which it occurred to him to make upon this Motion. In the first place he should enter his decided protest against it, being of so general and indefinite a nature, that it aimed at every thing and might be applied to any body. The hon. and learned member for Clare had eulogised the learned Judge who tried the cause, as being above suspicion for his conduct; but soon after 645 got up the hon. member for Colchester, his supporter, who impugned the Judge, and would have the whole weight of the imputation rest in that quarter. This indecisive and too general character was a great objection to this Motion, as it might be applied to any person. He was one of those who thought that the conduct of Judges, Juries, and others connected with the administration of justice ought not to be brought before the House, for it was likely to lead to the very worst consequences. The way in which the conduct of the English Equity Judges had been arraigned here was highly reprehensible. The taunts about the relative slowness or despatch of the Equity and Common Law Judges were likely to lead to a competition for quickness—a race for popularity which might end in the compromise of the suitors' interests. It had not done so, indeed, but it was calculated to do so. If this Motion were at all sanctioned by the House, he should say that there never was a criminal case in Ireland which might not be re-tried here. The circumstances, too, under which it was brought forward, were unfair. The counsel in the cause himself, with all the excitement of his client, was not the fittest person to bring such a question to a grave and deliberate discussion. He made no imputation against the hon. and learned Gentleman's motives, which, he was sure, were very good, but was he the person to arraign the criminal justice of the country? Much had been said of compassion for the prisoners upon trial, but something ought to be felt for public justice. If a public officer did his duty conscientiously, he ought not to be arraigned, and if he were, it would be enough to intimidate public prosecutors, who filled at all times an ungracious office, from discharging their duty with firmness and impartiality. He never heard a charge so entirely without foundation. It was now clear that the Judge had the depositions before him at all the three trials, so that he was the party to blame, after all (according to the statement of the hon. and learned Gentleman opposite), for not using them. But he had an excuse for that learned person, who, possibly, did not see any occasion to consult them, and who did not think it a matter of course, that because a witness added in his testimony before the Court to what he had sworn in the depositions before a magistrate, he was therefore ne- 646 cessarily perjured, for depositions were always imperfect and meagre. He had heard the vindication of his hon. and learned friend, but he did not think he wanted such a vindication. He was not, however, sorry to have heard it, for when a high public officer was exposed to imputations of a serious nature, he could not he quietly under them. He objected to the Motion altogether, because if it were agreed to, it would be trying the case over again; and until some stronger arguments should be brought forward in favour of such an extraordinary step, he should consider himself bound to oppose the production of the papers.
Lord F. L. Gower
said, that he came down to the House totally ignorant of the course the debate would take; but under all the circumstances of the case, and with his feelings and knowledge of the subject, a necessity was imposed on him to resist the Motion of the hon. and learned member for Clare, and particularly that part of it which related to the production of the Judge's notes. As good and satisfactory reasons, in a legal point of view, had been adduced to the House against the productions of them, by the hon. and learned Gentleman on the Treasury bench, it would be presumption in him to engage in a discussion on that part of the subject. It was his lot to enter upon the question entirely un endowed with that learning which the hon. member for Colchester disclaimed,—but which it was impossible for that hon. Gentleman, either upon this, or any other occasion, entirely to divest himself of. It had been his duty, however, to look into all the facts of this case; and his hon. and learned friend knew that he had most laboriously endeavoured to investigate them. When he found the case was put forward,—either upon the ground mentioned by the hon. member for Colchester, or on the fact of the deposition of the 29th of April, so often alluded to in the course of these transactions having been kept back; and when he found that it was assumed that the production of that deposition in Court would necessarily have proved the witness, whose evidence was in question, to be perjured; he could not hesitate at once to oppose the Motion, the assumptions being totally void of foundation. There was no discrepancy of importance, between the evidence brought forward on the trial, and the deposition so often mentioned. The evidence contained 647 within itself the facts alleged in the deposition; it shewed that there was a conspiracy to assassinate;—the simple difference was, that the oral evidence given in Court affirmed that the conspiracy was arranged and committed to writing in a tent at the fair of Rathclare. On that ground he should oppose the Motion. With reference to the charges made against his hon. and learned friend, the refutation was he thought quite triumphant and complete. Whatever unpopularity might attend the course he was pursuing, he would steadily persevere in that declaration. He might be told that by refusing the Judge's notes he was shrinking from this question, but from no part of this discussion would he shrink; he would defend the conduct of the government of Ireland, involved in the question, nor would he take any course that could for one moment admit the existence of a supposition, that he did not consider the refutation of his hon. and learned friend, both most satisfactory and complete. He was convinced that it was not necessary that any further inquiry should take place, with a view, through the production of the papers moved for by the hon. and learned member for Clare, "to promote the pure administration of justice in Ireland." Justice was already administered in that country with purity, and he rejoiced that the debate had taken place, because it had afforded his hon. and learned friend an opportunity of vindicating himself against the slanders that had been cast upon him. He appealed to the House and the country, whether he had not fully availed himself of that opportunity—and displayed great talent and feeling in meeting the charges made against him; and whether the House could in justice say, that his refutation was unsatisfactory or incomplete. The hon. member for Aberdeen indeed had taken occasion to read a lecture to his hon. and learned friend, as to the course he ought to have pursued on the occasion. There was no Member more willing than he was to admit the talents of the hon. Gentleman, however unpleasant and inconvenient he often felt the course which that hon. Member took on many subjects; no one was more disposed than he was to do justice to the abilities of that hon. Member, but he must be allowed to say that he could not defer to his opinions, with reference to the particular line of conduct to be pursued by his hon. and learned 648 friend, as to the legal points of this discussion. He was not so much inclined on matters of taste, judgment, feeling, or law, to bow to his authority, as upon matters of arithmetic. If he were to put the judgment of the hon. Member to the test upon that occasion, he would ask the House whether much deference was due to that judgment on such matters, after he had expressed his entire approbation of the speeches which had been more than once alluded to with becoming severity by his hon. and learned friend, the Solicitor General for Ireland, and which were uttered on the other side of the water by the hon. and learned member for Clare? Sir, the hon. member for Aberdeen had taken upon himself to share whatever approbation or disapprobation might be attached to the language of the hon. and learned Gentleman, and he was far from envying him the burthen he would have to bear. He would find very few Gentlemen in that House, or in the country, who entertained the same opinions as himself of the sentiments contained in these speeches, or of the language in which they were clothed. The noble Lord concluded by saying that he should certainly oppose the Motion of the hon. member for Clare.
§ Mr. O'Connell
—Sir, I avail myself of my right to reply, and I am able to subvert the sophistry by which the learned Gentleman is sought to be protected. Let me set myself right as to some of the assertions that have been made. In the first place the hon. and learned Gentleman has stated my definition of perjury. My opinion is, and I so stated it on the trial, that the breaking of a lawful oath, or the taking of an unlawful oath, is perjury. I was talking to the witness of the nature of perjury; and I then said, that if he had broken a lawful oath, or taken an unlawful oath, he was equally guilty of perjury. Secondly, the hon. and learned Gentleman, by going through a speech of great length, and which was rendered sufficiently ludicrous, notwithstanding its unwieldy length, by the tragic tone in which it was delivered, has arrived at the Sub-letting Act. The Sub-letting Act in this discussion! I cannot conceive how the Subletting Act can form a part of the Solicitor General's defence of his conduct; but he has the happy talent of introducing matters quite irrelevant. Why, Sir, he might as well have introduced any other event that 649 has taken place since the flood—nay even the universal deluge itself. But that learned Gentleman has been singularly unfortunate, for he has introduced the only speech of all those attributed to me which was so inaccurately reported that I cannot avow it. I avow all the rest. I admit every word he has read. I now reassert again every word; and but that he shrinks from the proofs—but that he withholds the proofs—I would prove to his condemnation the perfect accuracy of every accusation I ever made against him in this House, or out of this House. It is true that I spoke of the Sub-letting Act. It is quite true that I condemned that law in the strongest, the harshest terms; but the concluding part of the report is quite inaccurate. I never said what is attributed there to me. Nay, so inaccurate is that passage, that having met the reporter in the hall of the Four-courts, on the morning after that report appeared, I reproached him with its inaccuracy. The reporter was, as most reporters are, sturdy upon the subject, and denied the inaccuracy of the report. I accordingly spoke to another reporter, with whom I am acquainted, and at my request he wrote out the notes he had taken, which clearly showed that I had not used the phrases attributed to me; or rather that they were spoken in so qualified a way as to bear quite a different meaning. If I had used the expressions then, I would not deny them now. If I had now to speak of that Act, I would mention it in terms commensurate with my abhorrence of it: it is not possible to find language strong enough to express my detestation of that Statute. Sir, I know of 194 families, aye, families, that have been thrown out of their habitations recently under that law, and arc now actually perishing in the ditches without covering—almost without clothing or food. Let those who have no wan is to feel applaud that Statute. I will begin with the learned Solicitor-General for England. He demands my first courtesy. I agree in his inferences; I only dispute his statement of facts. But I perceive the noble Lord (Lord Leveson Gower) is about to leave the House. I beg of him to remain one moment. I will dispatch his Lordship first, though out of order. [Lord Leveson Gower returned to his seat.] I heard the speech of this noble Lord without surprise or admiration. He took a haughty tone without cause, and a dic- 650 tatorial manner without authority. First, indeed, he assented to the good taste of my noble and excellent friend, the member for Aberdeen. My hon. friend certainly is not so fashionably neat as the noble Lord. He is not such a ruler of fashion—such an arbiter elegantiarum as the noble Lord. He may not be so dainty or so courtly as the noble Lord—but he has qualities which I advise the noble Lord to admire if he does not condescend to imitate them. He is honest—he is straight-forward—he hates a job—he loves economy of the public revenue—he despises the spoliators of the people—and he detects and exposes those peculators whom, in the present state of this House, he cannot punish. Such is my hon. friend. He deserves the respect of every honest man—the love of every good man. He has, indeed, already crushed the pretensions of the learned member for, I really know not what borough. [A cry of Mil-borne Port—Mr. North.] Aye, it may as well be Milborne Port as any other. He had properly denominated that learned Gentleman's speech by a word which is due to that Gentleman himself, and by another equally apposite, which my hon. friend has himself added. He has called it "Salamander buffoonery."—There never was a more appropriate designation. I now return to the noble Lord. He has ventured to censure my conduct out of this House; out of this House or in this House, I hold his censure at naught, nor do I undervalue it. He has taken upon himself, forsooth, to pronounce upon my conduct. I have a right to retaliate upon him as a public man. For his taste, for his judgment, I have no regard; I rejoice that he disapproves of my conduct—I should be sorry if he approved of it. He is mighty in his own conceit—he is little in mine. If he served my country I would value him. But what has he done? What one act of his official life has been useful to Ireland? Where shall I find his services? He has condescended to accept the salary of an office amongst us. I take for granted that he has received the emoluments of that office—I do not know how he has earned them. He has ornamented by his presence the apartments of Dublin Castle. But has he done any act of liberality?—has he promoted any one friend of civil or religious liberty?—has he, in short, raised himself into importance or consideration by any one 651 act of his administration? I deny that he has. What care I, then, for the unwise arrogance—the unfounded presumption—the overweening vanity of his censure. May I continue to deserve it! His office is, indeed, one of great promise. It is part of his public career. He is on his road (for such is the miserable destiny of this country) to still higher station. He is an apprentice in politics, and he dares to censure me, a veteran in the warfare of my country. His office is a mere apprenticeship. The present premier was Secretary in Ireland—the present Secretary of State was Secretary in Ireland—so was the present Chancellor of the Exchequer. Their juvenile statesmanship was inflicted upon my unhappy country. I have heard that barbers train their apprentices by making them shave beggars. My wretched country is the scene of the political education of our statesmen, and the noble Lord is the shave-beggar of the day for Ireland. I have done with the noble Lord—I disregard his praise—I court his censure—I cannot express how strongly I repudiate his pretensions to importance—and I defy him to point out any one act of his administration to which my countrymen could look with admiration or gratitude, or with any other feelings than those of total disregard. His name will serve as a date in the margin of the history of the Dublin Castle—his memory will sink in contemptuous oblivion. I now turn to the learned Solicitor General for Ireland; and first, let me express my abhorrence of his insinuation, that he was in danger of assassination in Ireland. How unhappy is the fate of my country—there is not a pitiful slanderer that does not pour the vial of his wrath upon her. She is also exposed to the more galling meanness of calumnious insinuation, and now here is a broad charge of assassination. We feed, we clothe, we fatten our accusers; and when there is an occasion to make an English prejudice available, then assassination is imputed to us. I cannot find language sufficiently strong to repudiate this foul slander, or to express my abhorrence of it—Why, even in the worst periods of our disturbances, the legal men were safe. The White boys spared, and even respected the military. They also spared the legal prosecutors. They considered both as merely earning their pay, and treated them with the neutrality of feeling due to mere mercenaries. They 652 killed no lawyers. [Several Members named Lord Kilwarden.] The death of Lord Kilwarden was perfectly accidental. He fell by chance into the hands of a party in actual rebellion—and, it is believed, that he was not known to those who put him to death. For the present I pass from the hon. Solicitor General to the member for, I believe, Milborne Port. He has arrogated to himself, foolishly, the office of my censurer. His speech was perfectly characteristic—it contained no argument—it was free from legal knowledge—it left the subject in discussion untouched, in order to introduce topics which might earn the approbation of those who have the means of rewarding his exertions. It was divided into two parts. The first was all fulsome adulation of his legal commandant—adulation as groundless as could well be procured out of this House by the most accomplished sycophant. His second part was a prepared attack upon me. The pompous inanity of his studied, periods—his ludicrous self-complacency, have been well commented on by the hon. member for Aberdeen. I laugh to scorn his virulence. What right has he to convert himself into my censurer? What excess of arrogance is it not in him to pronounce on my conduct? Let him, however, do me this only kindness—never to inflict on me the punishment of his praise. What are his claims to the importance of being my accuser? If, indeed, I had come into this House nobody knew or cared how—if I had placed myself securely on the back row of the Treasury benches—if I had wasted my nights without daring to think for myself, listening to debates in which I was not allowed to share—considered so un importants to have no opinion of my own, but expected constantly to attend the ministerial troop, and unremittingly to vote with the Minister, then, indeed, might I be so low, so worthless, as to be the just object of contemptuous censure. But as I stand in the House the freely-chosen Representative of the people, I can easily, and without effort, despise the sickly affectation of phrase—the frothy selection of diction—the empty, but virulent declamation—and in short, the entire combination of worthless vituperation which has already been so justly styled "Salamander buffoonery." I shall dismiss the learned Gentleman's attack in a few words. I think it was in bad taste; I am sure it was in bad feeling 653 —but there is something worse, infinitely worse. Why, Sir, the hon. and learned Gentleman actually asserted that I had postponed this Motion from time to time—from one day to another day—and that having run through all these changes, I at length fixed on a Wednesday, in the hope that there might not be a House. I now ask, Sir, is this true? Is there one single word of truth in it? Judge of the materials of the hon. Gentleman's mind, when he pompously makes a statement totally destitute of truth. Why I never postponed this Motion. I never appointed any day but one, and that is this day. And as to the supposing that there would not be a House, did I not know as well as the hon. Gentleman himself, that there are enough of retainers always ready to make a House for those who find favour on the ministerial benches. How can I expect not to be falsely traduced upon matters which occurred in Ireland, when here, in the presence of the entire House, a charge is brought against me directly contrary to the known truth. I thus abandon the learned member for Milborne Port to enjoy his "Salamander" regard for dull matter of fact, and proceed to the rest of my antagonists; and here let me thank the hon. and learned Attorney and Solicitor Generals for England, for the pleasing contrast between their good manners and mode of treating this subject. They contrast strongly and pleasingly with the conduct of those to whom I have been hitherto replying.—The Attorney General has founded his argument on a mere misrepresentation of what fell from me. He misrepresents my charge, and then says it is unfounded. My only and sufficient answer to him will be found in the distinct repetition of my charge, which I shall have hereafter to make. The learned Solicitor General for England deserves a different consideration, and I at once admit the force of his reasoning. His arguments are excellent—the facts alone fail him. I entirely concur with him in his reasoning, but I will easily shew that he has mistaken the facts completely. I wish he had taken the trouble to read the deposition of the 29th of April before he spoke of its contents. Sir, he has not read it at all. It is not what he says. It is not a deposition sworn to obtain a warrant. No warrant was to issue on it. It is a detailed account of the progress of a conspiracy.—It is a piece of history—an 654 historical detail of the progress of a conspiracy. But of what conspiracy? Of a conspiracy totally differing in its nature and its details from that which Patrick Daly afterwards deposed to on the table as a witness. Let the Solicitor General remember, also, that this deposition relates to transactions of the 27th of April, and that it was sworn to on the 29th, two days after. Yet this contradictory document was withheld at the trial, and convictions were had on the testimony of the man who was known to the counsel for the Crown to have grossly trifled with his oath. The second mistake of fact which the Solicitor General for England falls into arises from the fallacious and deceptive statement of his colleague, the member for Kilkenny. He is by that misstatement made to believe that one of the four men accused of the conspiracy to murder, formed at the fair of Rathclare on the 27th April, 1829, was convicted at the last Cork Assizes upon the same evidence and before the same Judge. Sir, I totally deny that fact. It is true that one of the four men tried at the last Cork Assizes was convicted, but not on the same evidence, nor for the same offence. The offence for which four men were tried at the last Cork Assizes, and one of them convicted, was an offence committed on the 2nd of March, 1829, and he was not one of the four men who were accused by Patrick Daly of the offence of the 29th of March subsequent. The Solicitor General for Ireland avails himself of the number being four in each of the cases, and thus he actually makes the House, and even his own colleague, believe, that one of the four men accused at Rathclare by Patrick Daly, was convicted at the last Assizes, a matter in itself totally false. Let there be no doubt of this. The four men accused at Rathclare, by Daly, were named Leary, Burke, Keefe, and Connors. The man convicted at Cork was named Lynch. Thus the fallacy as to the number of four men is completely exposed. The next mistake of the Solicitor General for England relates to Mr. Baron Pennefather. He says that the learned Judge was in possession of the deposition at the first and second trial. I allege my conviction that he got that deposition only during the third trial. I say it is a calumny on that able and humane Judge to assert the contrary. If he had the deposition at the first or second trial, would it not have been equally his 655 duty to produce it to the prisoner's counsel at the first or second trial as at the third? He felt it his duty so to produce it at the third trial. Would not the production at the third trial only have been a direct condemnation of his own conduct at the two former trials, if he had that deposition in his possession at those trials and withheld it? Sir, I repudiate such a slander on the learned and able Judge. It is the Solicitor General for Ireland who imputes this misconduct to the Judge. I stand up in his defence—I am convinced he is incapable of deserving this censure—no man ever attained the high station he holds with more correctness or reputation. He won the prize by his profound legal knowledge, his strict propriety of professional conduct, and by his unblemished moral character. He was no ignorant pretender, who endeavoured to compensate for his want of legal knowledge by his servility. He was no unprincipled adventurer, who being without knowledge of law, sought promotion by pandering to the bad passions of persons in power. No, his course was plain, open, and dignified. And now that this fact is in dispute between the learned and hon. Gentleman and myself—to what and to whom do I appeal? Why, to the notes of the learned Judge himself? Can any thing but a consciousness that the fact is as I state it, tempt the Gentleman to refuse me those notes? If they are refused, I then stand on the fact as proved by the natural and necessary result of such implication. Allow me one word as to the testimony borne by the hon. member for Cork, (Mr. Callaghan). He was on the second jury, and he has, it seems, made this sapient disclosure—that the jury were agreed as to the guilt of the prisoners, and differed only with respect to the evidence. Precious and sagacious jurymen—they were ready to declare the prisoners guilty, but then they had not sufficient evidence to convict them. Admirable distinction! Why, how could they ascertain the guilt, except by the evidence? It was the very thing they had to try, the credibility of the evidence to establish the guilt. It seems, however, that the hon. Member reversed the process, and having first decided that the prisoners were guilty, he then began to discuss the question of whether or not there was evidence to warrant that decision. I did, indeed, feel for my clients—persecuted 656 clients—at the trial; but how much more should I have felt if I could have imagined that their lives depended on the deliberations of such a sagacious set of jurymen—of men who could continue for thirty-six hours under such an absurd delusion, with the hon. Member assisting them to go astray. Was not I right then to laud the one man of common sense who happened to be amongst them? I have heard of a juryman who refused to acquit, for no other reason than this, that the charges contained in the indictment were atrocious, although not proved. The hon. member for Cork was not that juryman I assure the House: but it was a person of equal sagacity. I cannot, however, avoid congratulating the House on the accession of wisdom which the hon. Gentleman has brought amongst us. I also congratulate the Solicitor General for Ireland on the support of so discriminating an advocate. I now come to the hon. Solicitor General himself; and first, as a gentleman of the Irish bar, I repudiate and condemn in the strongest terms known to the English language, the practice stated by the hon. and learned Gentleman of examining witnesses by counsel out of court. I assert that such a practice is held in just abhorrence by the Irish bar—that it is utterly repugnant to our habits and feelings of propriety. Sacred Heaven! can the hon. Gentleman be ignorant of the feelings of an high-minded profession on this subject? Yet he stated it in utter unconsciousness of its impropriety. Why, what an evidence is this of the absence of professional knowledge. I do not rest my condemnation of this practice on my own assertion. I appeal at once to the Attorney General for England—I call on him to sustain his Irish colleague if he can. Let him avow this practice if it be possible. But no—I will not wrong him. I know he condemns it as much as I do. I also make a similar appeal to the Solicitor General for England. I confidently state that he will not countenance such a practice. Thus, Sir, I am confirmed by the almost unanimous sentiment of the bar of England and of Ireland, in condemnation of this practice, so flippantly, and as a matter of course, stated by the learned Gentleman. I know some young and inexperienced attorneys have suggested to me, and the parties have sometimes urged me, to see their witnesses. But I have always rejected the proposal with 657 scorn and contempt. The condemnation of this practice does not rest on their assertions or appeals. It was a practice repudiated in this House in the strongest terms in the year 1818. On the 10th of February in that year, Lord Archibald Hamilton brought forward a charge against the administration of justice in Scotland. Amongst the rest this very topic arose—the examination of witnesses out of Court. He quoted a strong and emphatic expression of the then Attorney-General, Sir Samuel Sheppard. Here are the words—[Mr. O'Connell took up the Parliamentary Debates and read]—namely, "That God forbid he or any one officially connected with him, should have any intercourse with a witness in a case of public justice." The Attorney-general replied, but he did not deny the accuracy of the quotation: he only qualified the assertion thus—His words, as reported are, "he had not said he never communicated with any witnesses. He only said he never communicated personally with them." Here then is the testimony of the Attorney-general for England at that time disavowing with the solemnity of an oath, any such personal communication as the Solicitor General for Ireland avows he had with witnesses for three days. I stand on this fact. It is alone sufficient to sustain me. Here is an avowed mal-practice. Let me but get the documents I ask for; give me the authentic documents I require, and I again pledge myself to establish every word of the charge I have made against the hon. Gentleman. The charge I make is plain and explicit. It is, that being in possession of evidence, to shew his principal witness forsworn, he persevered in the trial, and sought conviction through the instrumentality of that witness. This is a serious charge. He felt it so. Night after night did he taunt me on this subject. He was ever ready to meet this charge and the House cheered him—and what is the state we are in at present? Why it is just this—he prudently shelters himself from my charge by refusing me the legal evidence which would sustain it. What has been his defence? Why he has mixed up the Sub-letting Act and the Borrisokane trials with dinner speeches and toasts, every one of which I avow, with one topic, with one single exception. I will not follow him at present through his three hours of all manner of subjects, 658 and by courting English prejudices. I care not for those prejudices—I come to the real question. It is this. Am I to get the proofs or not? Those proofs have never been under my control. They are incapable of being altered or influenced by me. I cannot prove my case without them. With them I pledge myself to prove my case. Was there ever, since the world began, such a state of facts as this? I charge the Solicitor General with having produced a witness who, on the table, swore to a case utterly inconsistent with a deposition on oath, made by him two days only after the alleged fact—with having this deposition in his (the Solicitor-General's) possession, and yet that he went on and procured one conviction, and sought others on this man's testimony. Such is my direct, plain, and tangible charge. He denies the importance of this man's evidence. I confute him by showing that there was a conviction when the deposition was not produced—an acquittal on its being produced. He then denies that the deposition contradicted the verbal testimony. I show that the production of the deposition was decisive of an acquittal. Here he and his noble friend are at variance—he admits that there is a discrepancy—the noble Lord says that there is none at all. Let them reconcile that discrepancy between them as well as they can. I contradict both—I call for the Judge's notes, which will show what this fellow swore at the trial—I call for the deposition, which will show what he swore immediately after the transaction—and this reasonable demand—this convincing proof, which is all I ask, is refused. The noble Lord puts it upon his dignity; he is too dignified to give me the evidence. The learned Solicitor put it on no tangible ground, but relies on English prejudice to refuse me what he knows would establish his offence. He has sagacity enough to know the effect of the evidence if produced. The dignity of the noble Lord is only equal to the instinctive sagacity of the learned Gentleman. I repeat it, that after all his taunts, his challenges, his goadings on, it comes just to this—he owes his safety to the suppression of the evidence. Here, then, is my full and complete triumph. If I get the evidence, I establish his guilt. If I am refused the evidence, I obtain the inevitable conclusion, that the evidence is withheld because it would establish his guilt.
§ Mr. Perceval
rose to defend the conduct of the Chief Secretary for Ireland. Long after party feelings had ceased, he said his solicitude for the welfare of that country would be recollected with sentiments of gratitude. His character would stand high in the favour of the people of Ireland, when the attacks of the hon. and learned Gentleman were forgotten.
§ The House then divided. The numbers were—For the Motion 12; Against it 70—Majority 58.
|List of the Minority.|
|Blandford, Marquis.||Jephson, C. D. O.|
|Cave, R. O.||Tomes, J.|
|Cholmeley, M.||Warburton, H.|
|Trench, A.||Wood, J.|
|Harvey, D. W.|
|Heathcote, R. E.||J. Hume.|
|Hobhouse, J. C.||D. O'Connell.|