HC Deb 18 April 1833 vol 17 cc304-16

Sir John Hobhouse moved the Order of the Day for the House resolving itself into Committee on the Trial of Offences (Ireland) Bill.

Mr. O'Connell

said, that the discussion of the principle of this Bill had been postponed on the understanding that it should be taken on the question of going into Committee He therefore hoped that the right hon. Gentleman would give his reasons for proposing this measure.

Sir John Hobhouse

acknowledged that what the hon. and learned Gentleman said was true, and he should endeavour, however imperfectly, to assign reasons why this Bill should pass. The Government asked for this Bill on the same grounds as those which induced the House to pass the late Coercion Bill as it had been called, but which he would call Pacification Bill, for it was a Bill to tranquillize Ireland. This was not a new measure, for a similar Act had passed in the reign of George 3rd, and the preamble and many of the clauses of the present were the same as in that Bill, He thought it was hardly necessary for him to enter into particulars, for the elaborate speech which had been made on the state of Ireland by his predecessor must have fully satisfied the House that justice could not be impartially administered in Ireland. Such a thing as a fair trial was probably unknown. The Bill, therefore, proceeded upon the impossibility of obtaining a competent and fair trial for offenders. He held in his hand a list of Jurors who had been deterred by intimidations from the discharge of their duty. One person connected with a newspaper received a notice that if he served as a Juror in the county of Kilkenny, and a single White boy was punished in consequence of his verdict, he must prepare for death.

Mr. O'Connell

When was this notice served on the party?

Sir John Hobhouse

On March 19.

Mr. O'Connell

Do you go back to March, 1819, for cases?

Sir John Hobhouse

Certainly not. The case he referred to occurred on March 19, in the present year. He was not so ignorant of events that had lately happened, and of the hon. and learned Member's own exploits, as to refer back to so distant a period as the year 1819. He held in his hand a list of a variety of similar cases which he would mention if the House desired it. The right hon. Baronet accordingly proceeded to mention several other cases similar to those of which so many were quoted by Lord Althorp and Mr. Stanley, on introducing the Suppression of Disturbances Bill, for the purpose of showing the system of terror and intimidation which still prevailed in Ireland, and the effect of which was entirely to prevent the administration of justice in that country. He learned, by a communication he had received from Ireland, that the present plan of the Whitefeet was not to deter witnesses from coming forward, but to order them to attend at the Assizes for the purpose of giving such evidence as they (the Whitefeet) might think fit. He had also an affidavit to the effect that money had been collected for the purpose of obtaining the acquittal of persons charged with outrages, and that Mr. Maurice Reid, a Magistrate of Kilkenny, had received so many threatening letters that, in compliance with the wishes of his friends, he had left Ireland, and was now residing in England. In addition to these, it was a well-known fact that many Petty Jurors were under the necessity of carrying arms in self-defence. In Westmeath, thirty persons had been bailed by respectable persons, who had been forced to such a measure, in order to protect themselves against the attacks of the Whitefeet. The case was the same in Tipperary; but he was quite sure it was unnecessary to multiply instances. These were the circumstances which made it absolutely necessary to pass the present Bill, in which there was nothing to which any body, who had the substantial ends of justice at heart, could object. It was not proposed to give the power of changing the venue either to the prosecutor or defendant in any case, but to the Court before which the cause came to be tried; and there were certain clauses to be introduced for the purpose of providing for the payment of the expenses of those parties whose trials were removed to a distance from their own counties. If any further justification of the measure were wanted, he might mention that it had received the approbation of Lord Cloncurry, than whom Ireland did not boast a better patriot, nor ever a better friend.

Mr. O'Connell

denied, that any case had been made out to justify such a Bill, and he would move that the Bill be referred to a Select Committee, in order to ascertain if it were necessary that it should be passed. After the change which had lately taken place in the Irish Secretary ship, he had hoped that he should not have any occasion to reply to personal attacks; but this expectation, he was sorry to say, had been disappointed. The right hon. Baronet had talked of his (Mr. O'Connell's) exploits. Now he begged to tell the right hon. Gentleman, that they had not been shifting and changeable, but consistent and of a uniform character. But dismissing this topic, he would ask the House whether there had ever been made such an attempt to trample on the constitutional rights of Ireland as had been ventured on that night? Were they prepared, on the strength of such documents as had been produced by the right hon. Secretary, on his simple allegation indeed to interrupt the usual course of justice in Ireland? If there had not been the utmost readiness on the part of the House to pass such a Bill, it would never have been introduced. Never before had such a measure been brought forward upon such grounds, or supported by such facts? The right hon. Baronet talked of doing justice to the people of Ireland, and yet he took the Irish peasant from the place of his birth, and carried him to a place far distant from where alone he could procure evidence to his character and means of his defence, to be tried, and of course punished. The very fact of an application on the part of the Crown to change the venue was sufficient to prejudice any man's case. These Jurors would naturally say—this is one of the Whitefeet, who have terrified the Magistrates and Jurors of his native country; but we will show him that we are not to be so intimidated. He had had more experience in criminal cases than almost any man in Ireland, and he could assert, that from many difficulties in procuring witnesses, a man's fate depended more upon his character than upon anything else. This was often owing to the conduct of the Counsel on the part of the Crown, and yet this Bill would remove an accused person from the only place where he could establish his character. One of the clauses to be introduced, it was true, provided for the payment of the expenses of a prisoner's witnesses, and he should therefore say no more upon this part of the subject at present, but he would assert again, that no grounds whatever existed for passing the Bill. He defied the right hon. Baronet to bring forward a single instance where the course of justice had been impeded by injuring Jurymen. The Report of the Committee of 1832, of which Sir Henry Parnell had been Chairman, had set forth that no Juryman, up to August in that year, had ever received any notice whatever. He (Mr. O'Connell) would go further, and say, that in the prosecution of the Whitefeet, forty-eight out of forty-nine had been convicted, and in every instance the Jurymen had returned to their places of residence without any interruption or molestation whatever. There was no reason for making such an inroad on the Constitution of Ireland. In the years I766 and 1776, Jurors had been injured, and outrages had been committed; but nothing of this sort had occurred recently, and therefore the Bill was totally uncalled for. The right hon. Secretary had referred to a similar Bill which had formerly passed; but was he aware that the Act to which he alluded, and which was directed against the north of Ireland; was a complete failure? The Government even shrunk from carrying it into effect but it was a bad precedent, worthy to be followed on the present occasion! All he asked for was, that a Select Committee should be appointed, with a few friends of Ireland among its members, and he would answer for it that they would prove that no necessity existed for the Bill. He begged Ministers to reflect upon the effects which their treatment of Ireland had upon their foreign policy. For the sake of Poland they dared not interfere, for Russia would point out to them the state of Ireland. They dared not quarrel with France until they had conciliated Ireland. He warned them, as he had frequently done before, unfortunately without effect but not without the results which he had predicted having arrived, that the measure would have the most fatal effects on the feelings of the Irish people. The hon. and learned member concluded by moving his Amendment.

The Solicitor General

had no hesitation in opposing the Amendment of the hon. and learned member for Dublin. What was it which the hon. Member had so much reprobated? It might be supposed that it was the most tyrannical code ever proposed for enslaving an unfortunate people. From the learned Gentleman's observations, one would really imagine, that it was proposed that the inhabitants of Ireland should be shipped off and tried in some remote corner of the globe. But what did the Bill amount to? To this, and this only:—that if it should appear to the satisfaction of the Judges of the Court of King's Bench in Ireland, the regular constitutional tribunal of the country, that there could not be a fair trial in the county in which an offence was committed, they might direct the trial to take place in the next adjoining county, or in the city of Dublin. Application for the removal of the trial might be made either by the accused, or the prosecutor; and every expense incurred by the prisoner, in the conveyance of his witnesses to the place appointed by the Court, would be paid. It seemed to him, then, that this Bill, so far from prejudging the case of a prisoner, tended only to give him a fair and impartial trial; and for that reason he should give it his decided support. The Bill which lately passed the House he felt himself compelled to support, most reluctantly, because it went, in certain cases, to supersede the Trial by Jury, and to establish unconstitutional tribunals. But the present Bill would tend to make those unconstitutional tribunals unnecessary, and would continue the Trial by Jury, according to the ancient law of the kingdom. The hon. and learned member for Dublin told the House, that, if this Bill passed, England would not dare to go to war with France, because Ireland, as he insinuated, would immediately join with the latter, and throw off" its allegiance to the British Crown. And why was Ireland to do that? Because the British Legislature proposed that, if there were not a possibility of procuring a fair trial in a county in which an offence took place, the trial should be transferred to the next county, or to the city of Dublin! The hon. and learned Member contended that there could be no freedom in a country where such a system was allowed to exist. He thought Scotland, where he was born, was free; and yet, the hon. and learned Member must know that this system existed, and had been the law of Scotland for many ages. In every case, at the discretion of the public prosecutor in that country, the trial of an offence might be removed from the place in which it was committed to the city of Edinburgh; and in the whole course of his life he never heard a complaint whispered against the power so exercised. But this was not only the law of Scotland, but the law of England also; because, wherever it was apprehended that a fair trial could not be had in the county in which an offence had taken place, the trial, on the application of cither of the parties concerned, to the Court of King's Bench, might be removed to another county. But if the hon. and learned Gentleman be dissatisfied with his authority, he would give him that of Blackstone, who said, that "as the jurisdiction of the King's Court is co-extensive with the kingdom, there surely, can be no impropriety in departing from the common rule, when the great ends of justice require it." In addition to this, Lord Mansfield said, "that where an impartial trial cannot be had in the county in which an offence has taken place, the case shall be tried in the next county. This is the ancient and general rule, wherever the Court has jurisdiction." So that it appeared by the testimony of these two weighty legal authorities, that that which the hon. and learned Member represented as most unconstitutional; and as so despotic and tyrannical, as to warrant the people of Ireland in throwing off' the allegiance of the British Crown; was the ancient and general rule of England, and had always been the law of Scotland. Within his own experience, he had known many instances in which the Court of King's Bench had changed the venue upon its being shown that a fair trial could not be had in the place in which the offence was committed. He remembered particularly a case which was tried at Gloucester for an offence committed at Stafford. In that case, the application for the change of venue was made on the part of the defendant, and, he as counsel for the prosecution, opposed it. As it was proved, however, to the satisfaction of the Judges of the King's Bench, that a prejudice existed against the defendant in his native town, they directed the trial to take place at Gloucester. Again, there was the recent case of the Magistrates of Bristol, whose trial took place in Westminster Hall before a Jury brought from the county of Berks. The case of the King v. Thomas "was, perhaps, more in point than any that he had cited. The city of Rochester was a county by itself, having a separate jurisdiction from the county of Kent. A bill of indictment was found againt Thomas, an excise officer, for murder within the liberties of the city of Rochester. In the common course of law, the trial would have taken place there; but, upon an application on the part of the prisoner to the Court of King's Bench, the trial was ordered to be removed to the county of Kent. The venue was changed accordingly; the trial took place at Maidstone, and the prisoner was acquitted. Such a prejudice existed against him in the city of Rochester, that, had he been tried there, the probability was, that he would have been convicted. This showed, that where a prejudice was known to exist, or where warm feelings were excited, it was as much to the benefit of the prisoner as of the prosecutor, that the venue should be changed. He trusted, therefore, that the hon. and learned member for Dublin would not tell the people of Ireland that this was a Bill which carried with it 50 great an infraction of the common and recognized laws of the United Kingdom as to justify them in shaking off their allegiance to England. In point of fact, when this Bill should become law, Ireland would only be placed in the same situation, as regarded the liability to change of venue, as England and Scotland now were, and for many ages had been. If the Trial by Jury in the ordinary form of law could be continued with any hope or any probability of obtaining justice between the accuser and the accused in Ireland, the late Act which, in many instances, provided for the establishment of Courts-martial in lieu of any form of Trial by Jury, would never have been agreed to by so large a majority of the House. The statement of the right hon. Secretary to-night proved that the system of intimidation still prevailed, and, therefore, he was at a loss to conceive upon what grounds, or upon what principle, the hon. and learned Member objected to a Bill, which would extend, as far as possible, to the people of Ireland, the benefit of the Trial by Jury, instead of subjecting them to the more summary and severe process of a Court-martial. The hon. and learned Member had before referred to the proposition made during the American war, to bring culprits to trial from America to England; but what parallel was there between the two cases? The operation of this Bill was confined to the jurisdiction of the courts in Ireland. The hon. and learned Gentleman had complained of the hardship of trying a man before strangers; but were the inhabitants of Dublin strangers? Were they foreigners? Were they not Irishmen, and had they not the sympathies of Irishmen? This must be so, and he was sure the hon. and learned Member did his constituents injustice. He would only remind the hon. and learned member for Dublin, before he sat down, that many Irish Members who opposed the Suppression of Disturbances Bill, supported this Bill. The hon. and learned member for Monaghan, for instance, highly approved of it, and considered that it might have an excellent effect, and render it altogether unnecessary to call into operation the powers of the Coercive Bill; for even when a district was disturbed, it did not necessarily follow that Courts-martial shall be established.

Mr. Cutlar Fergusson

said, he knew of no case in which the venue was changed except at the desire of the prisoner. There was no instance of its being changed on the part of the Crown. He regretted that the Court-martial clause had passed at all. Such a Bill as this might have rendered it quite unnecessary. He was prepared to oppose the changing of the venue to the city of Dublin, on account of the manner in which Juries were appointed.

The Solicitor General

said, he had no doubt that upon application the venue would be changed at the desire of the prosecutor.

Sir James Scarlett

said, there was a statute which enabled the prosecutor to have a trial in the next county.

Mr. Jervis

said, he did not mean to oppose the Bill. He believed there was no instance of the venue being changed in cases of felony at the suggestion of the prosecutor. At the same time, he did not mean to say, that a power to do that should not be given to the prosecutor in Ireland, subject to the approbation of the Court of King's Bench.

Mr. Aglionby

supported the Bill. He might be disposed in the Committee to vote against the venue being changed to the city of Dublin.

Mr. Sinclair

supported the Bill. He was a friend to Ireland, and as much disposed as any man to maintain her liberties. He heard nothing which could induce him to vote against the Bill.

Mr. Maurice O'Connell

said, that for three hundred years this parrot cry of friendship to slaves was repeated in the West Indies, as it was now with respect to Ireland Such professions of friendship were nothing but slang and cant. The friendship of England to Ireland had invariably shown itself in coercion. Not a single case of intimidation had been produced to justify this Bill, except one, founded upon anonymous information. He admitted that as fair and impartial a Jury might be had in Dublin as in any part of the empire if the Juries were struck in a different manner.

Sir Robert Inglis

thought it quite improper in the member for Tralee to charge his hon. friend (Mr. Sinclair) with the use of cant and slang. He protested against the use of such language in that House.

Mr. Maurice O'Connell

spoke generally of professions, which he must consider, looking into the result as hypocritical; and he meant nothing personally offensive to the member for Caithness.

Mr. Sinclair

expressed himself satisfied with the explanation.

Mr. O'Dwyer

opposed the Bill, and expressed his astonishment at a proposition to subject all Ireland to Dublin Juries. The Jury system there was full of vices. An instance in point was this: an Alderman was using insulting language to the King, and, on being remonstrated with, replied, "you may prosecute me if you like, but if it was even for treason, I am sure of getting a Jury to acquit me." Indeed, when it happened that the Attorney General had a quarrel with the Corporation he could get no conviction whatever.

Mr. Hill

thought the last speaker had given an undeniable reason for passing the Bill, for if it were a law, and an Alderman should speak treason, or the Attorney General have a quarrel with the Corporation, the venue might be changed, and the Alderman might find the experiment hazardous, and the Corporation might find it dangerous to obstruct the course of the law. His object, however, in rising, was to express the feelings he entertained at hearing the hon. and learned member for Dublin, and those who supported him, constantly throwing out irritating expressions against English Members; who, whatever might be said of their justice, certainly deserved great credit for their patience. He would put the claims of English Members as low as they could be put, by the ingenuity—he did not say ingenuousness—of the hon. and learned member for Dublin, he would suppose that if anything were to be gained, that if one single sixpence were to be put into the pockets of English Members by oppressing Ireland, they would so act, But if they could have no such motive, what was meant by the charge against them? The hon. and learned member for Tralee had compared them to negro slaveholders; but he would beg the House to recollect that there was this material difference between the relation of England to Ireland, and of masters to their slaves. Negroes were the property of their masters, and worked for their benefit; the masters gained their livelihood from the sweat of the negroes' brow; but it would puzzle hon. Members from Ireland to show how English Members profited by the labour of the people of Ireland. He would claim nothing for English generosity, which, in the abstract, the hon. and learned member for Dublin praised every night, but which he never allowed in any particular instance; but he would simply put the question as one of interest—and ask the hon. and learned Member, what benefit English Members could derive from the oppression of Ireland, any more than from the oppression of Scotland, of Wales, or Cornwall? What motive did he imagine could actuate the English Members? Did they do evil for the sake of evil? Were they demons? The hon. and learned Member was continually alluding to times past, and he went with him in those allusions. He knew that Ireland had been oppressed, that even his eloquence was not fervid enough to describe the oppression Ireland had met with—not, however, from England, or the English people—hut from the English Government; but had not that Government oppressed England also? [Mr. Connell: No!] Had the hon. and learned Member then expended all his faculties upon Irish history, and not read a page of English history? Were the Members of a Reformed Parliament, to say, that in times past, the English people had not been oppressed. Had the Government of the people of England always been just, and had they not suffered from the same causes as the people of Ireland? Had the people of England been duly represented in Parliament? Had they had a proper control over their own revenue and expenditure? Had not the people of England been subject to the domination of the faction which laid an equal hand of tyranny upon both countries? The hon. and learned Gentleman objected to this Bill as imposing hardships upon Ireland which did not exist in England; but the principle of the Bill had long been received and acted upon in England. The Act which had introduced it, gave power to any prosecutor on his own mere Motion, without asking the leave of any court whatever to prosecute a criminal in any adjoining county to the local jurisdiction in which the offence was committed; and it was only the year before last, that a murder committed in the county of the city of Coventry was prosecuted in the county of Warwick. The murderer was convicted, and taken back to the county of the city of Coventry to be executed. An important measure like this, however, ought not to be defended on mere law precedents; but when the hon. and learned Member spoke of this as an innovation, he certainly forgot his learning. If the hon. Member attacked the Bill upon principle, he would meet him upon principle, and would say boldly, that the principle of the Bill was so good, that he, for one, supposing it ever to be wanted, should, with proper checks, be just as ready to extend it to England as to Ireland. Nay, he thought it would tend to the advancement of justice, if a Bill of this kind was introduced into England. He was willing indeed, to concede, that, upon the evidence which the right hon. Gentleman had brought before the House, he could not conscientiously vote for the Bill. But he believed it to be good in principle, and should be ready to vote for it if the right hon. Gentleman had not produced any evidence whatever Juries appeared originally to have been not only Judges but witnesses, and were, therefore, obtained from the very place where the offence was committed. What they gained in knowledge by dwelling in the vicinage, they lost however, in impartiality; and, therefore, a very ancient change was, to bring the Juries from the hundred at large, and not from the immediate vicinity of the place where the offence was committed. A subsequent change was, to bring the Jury from any part of the county; which was the state of the law now. Did the hon. and learned Gentleman mean to say, that generally speaking, Juries drawn from a county knew anything of the witnesses or character of the parties accused? Such things occasionally happened, but they were by no means favourable to an impartial decision. Generally speaking, county Juries knew as little of the parties they tried, as if they lived a hundred miles off. What did it matter, then, whether a man were tried in his own county, or in a county at a considerable distance? When a Jury was ignorant of the criminal and the witnesses, it mattered not whether the trial took place in their own county or 200 miles off. The only difference was, that the prisoner would have the public to pay the expense of his witnesses when he was taken out of the county. That was an advantage all accused persons, he trusted, would shortly have, under proper checks, both in England and Ireland; for there was often great failure of justice from the incompetency of accused persons to bring from a distance witnesses who could prove their innocence. That advantage was given by this Bill, and therefore it ought to be received as a boon, instead of being made the subject of another charge against the English Parliament. With respect to Dublin Juries, as it had been proved, that the Sheriffs of Dublin were partisans, he should refuse his assent to that part of the Bill which went to place in their hands the power of appointing the Juries who were to try parties under this Bill. He saw no reason why a clause should not be put into the Bill, taking from the Sheriff of Dublin the power of choosing Juries, at least for the purposes of the Act. Surely, the officers of the Court of King's Bench might be intrusted with the power of selecting Juries. [Mr. O'Connell: The abuse was in making up the panel.] Well, they might make up the panel also; and at any rate Dublin could not be so deficient in honest men, as that one man could not be found in whom this power might be placed, even to the satisfaction of the hon. and learned member for Dublin himself. He should certainly support the Bill, but not the particular clause of it to which he had just referred.

Amendment withdrawn, and the House went into Committee.—Several clauses were agreed to.

Mr. Fitzgerald moved an Amendment, the object of which was to limit the power of the Executive Government in Ireland to the mere change of the venue to the adjoining county, and that to permit its removal, as was proposed in the Bill, to the county of the city of Dublin. For that purpose he proposed to leave out the words "or to the county of the city of Dublin, or to the county of Dublin."

The Committee divided on the Amendment.—Ayes 19; Noes 84: Majority 65.

Bill went through Committee. The House resumed.