HC Deb 07 March 1833 vol 16 cc343-52

On Mr. O'Connell being called on by the Speaker,

Lord Althorp

said, that before the hon. and learned Gentleman made his observations upon the motion of which the hon. and learned Member had given notice, he wished to make one suggestion. He had stated, on a former occasion, that the pledge he had given in the course of last year on this subject, that a Jury Bill should be brought in by the Government, was one which he thought had not been redeemed, and ought to be redeemed. In pursuance of that acknowledgment, he now wished to state, that it was the intention of the Government to bring forward in the other House of Parliament, a Bill, not exactly or verbally, but in substance the same with that which was introduced last year. The reason he thought it would be more convenient to bring it forward in the other House was, that the pressure of business in this House was so considerable, that he did not think they should be able to carry it through for some time to come—that it might in the mean time be passed through the other House, and when it came here, it ought to have incorporated in it all the Amendments which this House might think fit. This suggestion he threw out for the consideration of the hon. and learned Member before he brought forward the question. If the hon. and learned Member should persevere in his intention of bringing in the Bill, he (Lord Althorp) should not object to its introduction, nor to the Bill, except so far as he should feel himself called upon to oppose any of the details of the measure in its future stages through the House. Having thus stated what was the intention of the Government, he should leave it with the hon. and learned Member to determine whether he would leave the matter in the hands of Government or not.

Mr. O'Connell

placed the most unlimited reliance on the noble Lord's word as to his redeeming his pledge, and did not place to account, in the way of blame, the fact that the Bill had not been brought in during the last Parliament. He should therefore say, that if the Bill which he was about to propose was confined to Special Juries, he should not feel the least hesitation in acceding to the noble Lord's suggestion; but there were parts of his proposed Bill that were not to be found in the Bill of last year, and there were portions of the Bill of last year that, in his opinion, did not go far enough to remedy the evils it related to. That Bill only went to cure one set of evils. He did not mean to trespass long upon the House, but should wish to state to them what was the nature of his demand. He did not wish to pledge the Government on the subject, but he should like to let the Government know what he asked; and then, if the noble Lord would say, that they would take the whole subject into their consideration, that moment he would withdraw his Motion. His Motion simply was, for leave to bring in a Bill to amend the laws relating to Special Juries, and to Juries in criminal cases in Ireland. He should not detain the House with any observations as to Special Juries. He should go at once to the other question. By 6th George 4th, the Jury-law in England was altered and amended. Up to that period, the practice of selecting Special Juries was vested in the Master of the Crown Office, who had an absolute power of selection. It was then often matter of complaint, that by those means he packed Special Juries in Crown cases. But his power was settled by the law, and, at length, when it was brought before the Court of King's Bench, one of the Judges said, if by packing, you mean selecting a Jury, the officer has a right to pack the Jury. The matter was soon afterwards brought before that House. It was then that a new plan was proposed. After having ascertained who were fit to serve on Special Juries, their names were formed into a list, and they were nominated by the ballot. He required no more for Ireland; but he thought it highly desirable that the law of the two countries should be assimilated. He had been told, that Mr. Baron Pennefather felt some objections to the measure. Since he had heard that, he had had an opportunity of seeing that learned Judge; and, after explaining to him the real nature of the plan, Mr. Baron Pennefather expressed himself highly favourable to the Bill. He had road the other day, in the newspapers, an essay by a Judge against Jurors, or, at least, not in favour of the Jury system; but that House ought not to attend to these opinions more than by listening to them with the respectful deference due to the situation of the learned person who uttered them. It should be recollected that it was the duty of the Jury to check the Judge, but Juries came to be sometimes disliked when they performed that duty scrupulously. In the 15th report of the Commissioners of Judicial Inquiry would be found the evidence of a person who distinctly admitted, that he had a predilection for Special Juries; for if they did not attend, he believed he had found it sometimes convenient to consult one of the parties as to the tales men he should return. That was the evidence of a Sub Sheriff; and when he expressed a belief of that kind, there was no doubt that implicit credit should be given to his belief. Great complaints had been made of the Special Juries in the county of Dublin, and they were founded on this, that the Corporation of Dublin were, in fact, few in numbers, and exclusive in religion, and the officer took the Corporation, and the high political men, and put them on the list, and required an actual legal objection before he would pass them over. He thought the complaints, as to those Juries and their mode of appointment, were well founded, and that not only in a political point of view, but on account of civil matters. He knew of instances in which Special Juries in Dublin had decided questions of property, not on the evidence before them, but as they happened to like or dislike the politics of the respective parties. He wished to add to these changes an alteration in the mode of appointing Juries in criminal cases. At present, the practice was, for the Sheriff or Sub sheriff to strike what was called a Grand Panel for each Assize: and, notwithstanding the provisions of the 12th Geo. 1st, c. 4, he exercised an uncontrolled discretion in this duty; he usually returned from 100 to 700 names, and the effect was, that the Crown enjoyed the absolute choice of every Jury. He was desirous, therefore, of making the law, as it regarded challenges, the same in Ireland as in England. When a prisoner was put upon his trial, he had the right peremptorily to challenge twenty Jurymen, but the right of the Crown, in this respect, was unlimited. In the reign of Edward 1st, indeed, a law was passed to the contrary, but the Judges, by their practice, had repealed this law; when the Crown had peremptorily challenged beyond a certain number of Jurymen, the rest that were subsequently challenged, were ordered to stand by until the whole number should have been gone through; but when they were gone through, the Judges might order an unlimited extension of the list, and there were instances in which the Crown had gone to the extent of challenging 132 Jurymen. Private prosecutors had the same advantage in misdemeanors, and offences not transportable. A respectable solicitor at Cork, was tried for evading the Bankrupt-laws, and he was unjustly convicted of a conspiracy, because the prosecutor had been able to secure a Jury with eleven "Friendly Brothers," a society to which he belonged, upon it. Lord Chancellor Manners and the other Judges were so satisfied of the unfitness of the verdict, that they restored the individual to his situation in the profession. How, then, did he (Mr. O'Connell) propose to remedy this defective state of the law? By adopting a principle already familiar, and observed since the reign of Edward 3rd, in civil cases—namely, ballotting for the Juries. The Sheriff at present returned from thirty-six to sixty names in every cause—most commonly sixty. His (Mr. O'Connell's) plan was, that a ballot should take place for the Jury among the names returned by the Sheriff in Ireland upon the Grand Panel—that the prisoner should still be allowed his peremptory challenges, but that the Crown should be deprived of the power it exercised of objecting to any number without cause assigned. He had trespassed longer upon the attention of the House than he had designed—he had shown, that he meant to adopt the English law of last Session as regarded Special Juries, and to restore the ancient law, by abolishing what was called letting Jurors stand by on behalf of the Crown—further, he intended also to apply the system of ballot to Juries in criminal cases. He should be most happy if the noble Lord would assure him that the latter part of the subject was likely to meet with the approbation of Government; and in the hope that it would not be resisted, at least in the first instance, he moved "that leave be given to bring in a Bill to Amend the Law relative to Special Juries, and Juries in Criminal Cases in Ireland."

Lord Althorp

did not mean to resist the introduction of the Bill, although he found that it went somewhat further than he had supposed when he last addressed a few words to the House. Hereserved to himself, however, after reflection and consultation with his colleagues, the right of resisting any parts of the measure in its future stages; and, in the outset, he must say, without pretending to the knowledge of a professional man upon the subject, that it went beyond the necessity of the case, if the wish of the hon. and learned Member were only to assimilate the laws regarding Juries in England and Ireland.

Mr. Lefroy

said, that as the present was a measure vitally affecting the administration of justice in Ireland, he could not, after the statements he had heard put forth by the hon. and learned member for Dublin, suffer his observations to pass altogether without notice. He must, in the first instance, inform the House, that in his opinion, the most mischievous consequences would ensue from such a revolution in the Jury system as that proposed by the hon. and learned Gentleman. It was going far beyond anything in the way of change that had been effected in England. The prerogative of the Crown to set aside Jurors was objected to, but it appeared to him that that prerogative like all others was conferred for wise and good reasons. What object could the Crown have in procuring an unjust verdict, and how many good reasons might there be for ordering Jurors to stand by, though at the same time it might be most difficult to establish a legal objection to them? That the Crown did not exercise the prerogative to a mischievous extent he thought was manifest from the fact, that, at the Kilkenny Assizes, the Crown found it impossible to obtain a verdict in a case where a most atrocious murder had been committed, and yet the hon. and learned Member would have it inferred that the Crown was in the habit of packing Juries. The hon. and learned Gentleman also complained of the Special Juries in Dublin. He (Mr. Lefroy) trusted that vague and loose assertions would have no weight with the House. The Special Juries of Dublin were composed of the most respectable merchants and bankers in that city; and, as the hon. and learned Gentleman had thought fit to scatter such general imputations, he should be wanting in his duty if he did not vindicate the Special Jurors of Dublin from the foul aspersions which had been cast upon them. Aspersions had also been cast upon the Sheriffs, and other persons connected with the administration of justice in Ireland. He was sorry to perceive, that a wish existed to bring all persons concerned in administering the law in Ireland into disrepute; and he regretted to find a readiness on the part of the House to lend itself to the attempts. He had had the honour of bearing his Majesty's Commission on circuit for several years, and he could not recollect any instance that could warrant the charges which had been made against the Sheriffs and Juries of Ireland. The hon. and learned Gentleman might, perhaps, be able to point out some solitary instance of improper conduct. Hon. Members, however, would not, he hoped, suffer their opinions to be prejudiced by such an instance, but rather judge of the Sheriffs and Jurors by their general conduct, and not be biassed by a particular case.

The Solicitor General

rose to express his good wishes for the Bill as far as it proposed to assimilate the law of Ireland to that of England. He did not pretend to be well acquainted with the practical administration of the law in Ireland, but this he knew, that a Jury selected by officers of the Court would never command the confidence of the country. It was most desirable, therefore, that Juries should be chosen by Ballot. He hoped, however, that the hon. and learned Gentleman would be satisfied with proceeding no further than assimilation; the 6th George 4th had worked extremely well in this country; no complaint had been made from any quarter, and it would be well if that were extended to Ireland. He was of opinion, however, that the Crown ought to be allowed peremptory challenges, and he had no objection that the prisoner should enjoy the same advantage in all cases of felony as far as related to twenty Jurors.

Mr. Shaw

said, that he concurred in the principle laid down by the Solicitor General, and the hon. and learned member for Dublin, as to the propriety of assimilating as far as possible the law in England and Ireland; but he must view with alarm the introduction of a measure such as that proposed, and to the principle of which the twelve Judges in Ireland were unanimously opposed. He desired that the same spirit should pervade the laws in the two countries, yet it was quite necessary to keep in mind the different circumstances under which that spirit and principle was to be practically applied. The hon. and learned Gentleman, the member for Dublin, stated that Baron Pennefather had agreed to the principle of the measure, but was opposed to some of its details. He did not mean to accuse the hon. and learned Gentleman of wilfully misrepresenting the opinions of the learned Judge, but he knew, and would distinctly assert, that Baron Pennefather was opposed to the principle of the Bill. Before the House adopted any new principle in regard of the Jury-laws in Ireland, they ought well to weigh the peculiar difficulties of the administration of justice in that country, otherwise they would be legislating upon the fallacious supposition that England and Ireland were in that respect similarly circumstanced; and he would warn the House that, in the event of the Jury Bill passing into a law, the House would be again called upon to enact coercive measures, similar to those now before the House, for the purpose of correcting the evils which would be sure to arise from it. The twelve Judges in Ireland were unanimously opposed to some of the principles of the proposed measure, and that he trusted would be sufficient to induce the House without his further trespassing on it at that stage of the proceedings to pause in assenting to the Motion. His observations were applicable even to the Bill which passed the House in the last Session; but the alterations now proposed by the hon. and learned Member went far beyond the Bill of last year. Ballotting for Juries in criminal cases formed no part of that measure. He thought with respect to Special Juries, that the hon. and learned Gentleman had gone very far in charging twelve gentlemen with having sworn falsely, and returned a corrupt verdict on political grounds. The hon. and learned Gentleman said, that he knew the fact to be so. He (Mr. Shaw) could not conceive how the hon. and learned Gentleman could possibly have known the fact of his own knowledge, for he was sure that if twelve men of opposite politics had acted so improperly and corruptly, the hon. and learned Gentleman was the last person in whose power they would have placed their characters.

Mr. Cutlar Fergusson

said, it was perfectly clear that the Crown ought to be limited in its challenge, but it might be right to consider that the Crown ought to have a challenge as large as the other party. An unlimited right of challenge was not a prerogative of the Crown, but only an abuse of the Statute of Edward 1st. He believed all the great constitutional authorities were against the unlimited power of challenging claimed by the Crown.

Colonel Conolly

deprecated the alteration in the Jury system proposed by the hon. and learned Gentleman. His opinion was, that it would prove most mischievous in its consequences, and he was fortified in that opinion by the sentiments entertained on the subject by the twelve Judges in Ireland. He had had communication with the Judges of one of the Courts, and he felt it his bounden duty to state to the House what were the opinions entertained by those learned functionaries upon the subject, and they were, that the proposed alterations were incompatible with the administration of justice in Ireland. He must beg leave to caution the House against sanctioning so dangerous an innovation as that proposed. He could not agree with the hon. and learned member for Dublin as to the justice of the aspersions cast upon the Sheriffs in Ireland. He had more than once had the honour of filling the office of High Sheriff; and on his own behalf, as well as those of his friends, he must be permitted to repel the calumny with scorn. It was most unjust to hold up to execration men whose characters were as dear to them as the administration of justice could be to others.

Mr. O'Dwyer

referred to the Commissioners of Legal Inquiry in Ireland, who had reported (and their opinion was recorded in the proceedings of the House), that the office of Sheriff in Ireland was one of the most monstrous corruption and abomination. The evidence taken by this body showed that a Jury in Ireland was to be bought exactly in the same way as a pound of tea, or a yard of cloth were purchased in this country. He maintained boldly, that the system of Special Juries in Dublin had been converted into a mode of living, by needy corporators and their pot companions.

Mr. O'Connell

, in reply, observed, that while Baron Penne father was on circuit last year in the county of Clare, he had applied to him to learn if he had any objection to the present Bill; the learned Judge had stated only one objection which regarded Special Juries, and he (Mr. O'Connell) did not believe that he entertained any others. The great object he had in view was, that impartial justice should be done—that Juries in Ireland should be tinged with no colour, whether green or orange.

Colonel Verner

was opposed to the proposed alterations in the Jury system. He thought the attacks made upon the Juries was most unwarrantable, and related a circumstance in which two cases of murder were tried. In one case, one of the persons accused was a Protestant—in the other a Roman Catholic. The Jury that tried the Protestant was composed of twelve Protestants, and they found him guilty, and he was executed. The Jury that tried the Roman Catholic was composed of eleven Protestants and one Roman Catholic. The eleven Protestants were for finding the prisoner guilty, but the Roman Catholic held out, and the Jury were discharged without agreeing to a verdict. At the next Assizes, the prisoner was again tried, and found guilty, and executed. The widow of the murdered man was the principal witness, and was obliged to be kept in gaol, lest she should be murdered; she was, however, subsequently obliged to leave the country.

Mr. O'Connell

regretted, that the hon. and gallant Member was not in the House when he made his statement. If the hon. and gallant Member had been present, he would have found that there was no Popery in the Bill.

Leave given.