§ Lord Althorp
moved that the Order of the Day for the House to resolve itself into a Committee on the Suppression of Disturbances (Ireland) Bill be read.
Mr. Thomas Attwoodsaid
, that he should take this opportunity of moving, "that this House do suspend all further proceedings on the Irish Bill until the remedial measures proposed by his Majesty's Ministers be passed into a law."
§ The Speaker
, interrupting the hon. Member, informed him, that he could not regularly propose an amendment, upon the question of reading the Order of the Day; he must wait till the noble Lord made the Motion to go into the Committee.
§ The Order of the Day read.
§ Mr. Thomas Attwood
said, reverting to his Amendment, he must say, that he entertained the strongest fears that the remedial measures for Ireland would never become the law of the land; but that, as he had said before, was not his only reason for proposing his Amendment. They had now been assembled for nine weeks, and all that they had done in that time had been to get into the Committee upon this Bill. The great work of English legislation had been totally neglected for it; and, in his opinion, there was greater danger at present of public disturbances taking place in England, than there was of public disturbances taking place in Ireland. He knew that there was great discontent among many millions of our own countrymen, and knowing that, he called upon Ministers to pause in their proceedings upon this Bill, and to turn some part of their consideration to other subjects, besides that of applying coercive measures to Ireland. He thought that Ministers could entertain other subjects better now than they could a month ago, as every arrival from Ireland tended to prove that that country was now quiet. Was it not notorious that ten of the persons accused of the murder of Mr. Leonard were now in custody? Was it not notorious that Mr. Steele—by some deemed an agitator, by others one of the pacificators of Ireland—was now submitting to a legal prosecution? Did they not read in every newspaper, that at all the Assizes in Ireland business was going on well? Did they not read, that the Judges in their different charges, were congratulating the 829 Grand Juries that everything looked favourable; that Juries and witnesses were each and all performing their duty unshrinkingly and fearlessly, and that there was nothing like intimidation influencing their decisions? He, therefore, thought, that these coercive measures for Ireland might be postponed, in order to let English legislation go on. He could not see that any great injury would arise from the delay which he proposed; and if Gentlemen could only see this matter in the same light in which he saw it, they would postpone the further consideration of these coercive measures till the remedial measures had become the law of the land. If they did not see those remedial measures passed first, they might depend upon it that they would never see them passed afterwards. At any rate, as those measures were proposed as a boon they ought to proceed at least pari passu with those measures which were intended as a punishment. He then proposed his Amendment, but informed the Committee, that he would not give them the trouble of dividing upon it, unless he saw them actuated by a desire such as he felt, of placing their opinions on this subject upon record.
said, he knew not what might be the private information received by the hon. member for Birmingham from Ireland, which induced him to suppose that that country was returning to a state of tranquillity; but the information which he received officially was, that the disturbed districts, instead of becoming quieter, were becoming more and more disturbed; and that, although great and sudden changes had taken place, with regard to the intimidation of witnesses and Jurors at these Assizes, so that some convictions had taken place, still the outrages were actually on the increase; and he was satisfied that every day they delayed to pass this Bill, they were rendering life and property less secure in that country. On that House, if it further delayed the measure, might be charged, not the loss of life, but the evil of increased outrages. He trusted, that the same reasons which had induced the House to consent to the introduction of a measure that must be repugnant to the feelings of every man, would induce them to support it now that it was introduced, and pass it with the least possible delay; so that they might give to Ireland, as soon as possible, the 830 certainty of that protection, which the peaceable inhabitants of the country did not now enjoy.
§ Mr. Harvey
could not agree to the suggestion of the hon. member for Birmingham. He called upon Irish Members to withdraw their hostility to this Bill; and, by so doing, propitiate the feelings of the people of England, who all felt alike upon the subject of their opposition. He sincerely hoped, that the hon. Members who had so ably and so honestly opposed the Bill hitherto would cease their opposition, and allow it to pass, in order that the House might proceed to the discussion of those countless subjects on which the public mind was so stedfastly and so anxiously fixed. Let the responsibility of the measure be upon the heads of those who advised it, and by whose instrumentality it had passed into a law.
would not have said one word had it not been for the observations of the right hon. Secretary for Ireland, and of his hon. and learned friend, the member for Colchester. He totally disclaimed the advice which his hon. and learned friend had given him to relax in his hostility to this Bill. He should feel himself guilty of a dereliction of positive duty were he to permit a single guard of the Constitution to be trampled under foot upon the tyrant's plea of necessity—a necessity, by-the-by, which did not exist—without appealing to the British public against the atrocious law which warranted it. As it was now to be proposed to the House to pass a clause abolishing the trial by Jury, and substituting the trial by Court-martial in its stead, he would not listen to any amendment, but would try the question fairly upon the principle. He would divide the Committee upon this point—"Trial by Jury, or no trial by Jury; Court-martial, or no Court-martial." In one instance he would confess that he was obliged to confirm the information which the right hon. Secretary for Ireland had just given the Committee; but in another instance he must totally contradict it. He denied, that outrages had recently increased in Ireland; but he was sorry to say that his information led him to believe that a worse spirit now existed in Ireland than had ever existed there before.; a spirit of detestation against all the upper classes now influenced the lower classes of Ireland, because they supposed that their superiors had entered 831 into a combination against them. He took that opportunity of warning the right hon. Secretary against producing by his measures a servile war in Ireland. He reminded the right hon. Secretary that Ireland was not the Isle of Wight nor the Isle of Man, but a country containing 8,000,000 of inhabitants, the most easily defensible of any country in the world, and filled with a brave population. On the heads of the Government be the responsibility of this measure. He was only doing his duty in announcing to the Ministers the malignant spirit by which the lower classes of Irishmen were animated against the higher, and the total want of confidence in the aristocracy, magistracy, and gentry which their present conduct in procuring such a law as this was producing in Ireland. As to the upper classes, he must say, that they were now executing the law with the utmost firmness—he might say with the utmost rigour. There had already been, at the late assizes, more than one conviction which had not been satisfactory to the Judges, for the Juries, instead of refusing to convict the guilty, were rushing into the opposite extreme, and were even convicting the innocent. There was no shrinking from their duty at the last assizes, either on the part of witnesses or Jurors. Indeed, there had been repeated convictions at the late assizes in Ireland which could not have taken place in any other part of the United Kingdom. Let him say this for his valued friend Mr. Steele, that though he was now bound to abide his trial at Kilkenny, one of the learned Judges who travelled that circuit had, in a case where two men had been found guilty of Whitefeet outrages, declared that he would transmit to the Government a favourable report of what Mr. Steele had stated on their behalf—namely, that they had given up their arms to him at his request before they were arrested on the charge upon which they had just been convicted.
§ Mr. Henry Grattan
also entered his protest against being interdicted by any hon. Member from opposing the present Bill. His opposition was in order to have that Bill amended, and save the present Government from the odious situation they would be placed in, if it passed with its obnoxious clauses untouched. If it so passed, the upper classes in Ireland would feel themselves most sensibly wounded, in 832 being reduced as it were to utter insignificance by the introduction of Courts-martial.
§ Mr. Cutlar Fergusson
coincided with the remarks that were made by the two last hon. and learned Members. He reprobated the idea of allowing any bill to pass without the House making it as unobjoctionable as possible. The House was not justified in throwing the responsibility of the measure on the Ministers if the House could improve it. It was their duty to amend the Bill, and the time for doing so was whilst it was passing through the Committee.
§ Amendment negatived. House went into Committee. Question put on the ninth clause of the Bill.
The Committee was now arrived at that clause of the Bill which gave to the Lord Lieutenant of Ireland in the proclaimed districts, with those additions of power which they had given to him in districts not proclaimed, to prohibit or suppress any meetings deemed by him to be dangerous to the public peace, or inconsistent with the due administration of the law—the power of not allowing any meeting for petitioning Parliament, or for discussing any alleged grievance in Church or State, without he received a previous written notice of ten days, specifying its object, and without he had given his assent to it. In framing this clause, Government had drawn this distinction between the proclaimed and the non-proclaimed districts, that, whereas in the districts not proclaimed, the Lord Lieutenant was to have the power of suppressing by this proclamation only such assemblies as he deemed to be dangerous to the public peace, or inconsistent with the due administration of the law, he was, in the proclaimed districts, to have the power of assuming that any large congregation of persons for the purpose of petitioning Parliament or discussing any alleged grievance, in which inflammatory topics might, and probably would be used, was primâ facie dangerous to the public peace, and could not be permitted, unless such an explanation of its objects were given in writing as would justify him in giving it his sanction. When this clause was on a former night under discussion, the hon. member for the town of Galway had pressed upon the Government, and Government had felt the justice of his suggestion—that there ought to be some 833 exception made in favour of meetings which had been duly summoned and convened by the High Sheriff or Lord Lieutenant of any county. It was, therefore, his intention to state at present the clause which Government had determined to propose, to carry the suggestion of the hon. member for the town of Gal-way into effect. Formally, indeed, it could not be proposed till the Committee had got through the existing clauses of the Bill; but the clause which Government intended to propose as the 10th clause of the Bill would make certain exceptions from the 1st and 9th clauses of the Bill. He would now read the clause which he intended to propose after this 9th clause. It was as follows:—"Provided always, and be it enacted, that nothing in this Act contained shall extend, or be construed to extend, to prohibit, or to enable the Lord Lieutenant or other chief governor or governors of Ireland to prohibit, in any county, county of a city, or county of a town, whether in any proclaimed district or elsewhere in Ireland, any meeting which shall be duly convened by the High Sheriff, Lieutenant of such county, or by the Lieutenant or Chief Magistrate of such county of a city or county of a town." This proviso would apply equally to proclaimed and unproclaimed districts; but as the object of Government was, that there should be no restriction upon the right of petitioning, and that the inhabitants of every district should have the power of making their opinions known to the Legislature, it had been deemed right to introduce this limitation for the proclaimed districts: "Provided, nevertheless, that in any proclaimed district it shall not be lawful for any person not being resident within the county, barony, half barony, parish, or district for which such meeting shall be convened, to take part in, or be present at, any such meeting; and that any person taking part in, or being present at, such meeting, and not being resident as aforesaid (save and except any Magistrates, constables, or others charged with the preservation of the peace), shall be deemed and taken to be guilty of a misdemeanor." He thought it right to make this statement before the Committee entered upon the consideration of the 9th clause, as it might, perhaps, have some influence upon the opinions of hon. Gentlemen, and save the time of the Committee.
defied the right hon. Secretary, or any man else, to point out any disturbed district in which political meetings had been held. In those districts where political meetings had been held there had been no disturbances. There was no place in Ireland, or indeed in the United Kingdom, so peaceable as the city of Dublin, which had been the very focus of what was called political agitation. He was not inclined to recommend the holding of public meetings in the proclaimed districts, as they were calculated to create collisions between the army and the people. He objected to the words of the clause, "and the consent in writing of the Lord Lieutenant or other chief governor or governors for holding such meeting, signified by such Chief or under Secretary." These words he considered altogether unnecessary, and he would move that they be omitted, though he would not take the sense of the House upon the question.
§ Amendment negatived, and the clause ordered to stand part of the Bill.
§ The 10th clause empowering the Lord Lieutenant, or any person authorised by him, to commission officers of the army in Ireland, not being under the degree of a field-officer, to hold Courts-martial for the trial of offenders under the Bill, was then read.
said, that before they went into the consideration of this clause, he felt it incumbent on him to lay before the House several material provisions that had been resolved on, which, without diminishing the efficiency of the Bill, would meet some of the objections which hon. Members connected with Ireland had made to it. Those provisions were proposed in order to render military tribunals as little liable to be abused as possible. Two or three of those modifications had been already mentioned to the House. The first was, the removal from Courts-martial of officers of low standing and little experience. This was done by not permitting any officers to sit on Courts-martial who had not obtained the rank of Captain. He would announce another more important alteration. Great objections had been made to the officers of those tribunals, that their duty would lead them to seek out and apprehend culprits, and after being harassed night and day, they might, it was asserted, come to those tribunals deficient in that impartiality and coolness 835 which persons in a judicial capacity ought to possess. To meet those objections it was thought expedient that no officer on active regimental duty, who might be instrumental in having offenders apprehended, should sit on those Courtsmaitial, before which such offenders might be tried. The third alteration had already been stated by his noble friend beside him, and required that there should be a greater majority for conviction than the mere majority which was enough on ordinary Courts-martial. Moreover the courts were not to be empowered to adjudge the punishment of death; nor even to try for a capital offence, without the special leave of the Lord Lieutenant, and even then they were not, on a conviction, authorized to pass sentence of death. The proviso which would be introduced for this purpose would enact, that where the court should consist of nine members, seven should concur in the finding, and when there were less than nine, five at least should concur. This would be an additional security against the want of due consideration before the court agreed in its verdict. There would also be another difference between these and ordinary Courts-martial, that the sentence could in no instance be executed until the finding and sentence had been submitted for revision to a higher authority; and while referring to proceedings under former Courts-martial in Ireland, he would incidentally notice, at the request of the gentleman who had written to him on the subject, a statement made by the hon. and learned Gentleman, the member for Dublin, respecting the case of Sir Edward Crosbie. The hon. and learned Gentleman had road a letter purporting to be from the son of that gentleman, in which he thanked him for having vindicated the memory of his father. He had since received a letter from the son of Sir Edward Crosbie, in which be disclaimed having written any letter, or made any communication to the hon. and learned Gentleman on the subject. When he stated this, he by no means meant to accuse the hon. and learned Gentleman of having stated anything which he himself did not believe to be true. The hon. and learned member for Dublin had read what bad been sent to him, he made no doubt. But the son of Sir Edward Crosbie denied having wished or authorized any hon. Member to 836 vindicate his father's memory, whilst he had sufficient proofs of being able to do so himself. Above all things, that gentleman did not desire that his father's innocence should be contaminated, as he deemed it would, by mixing it up with matters that related to political agitation. The Amendment to which he had called the attention of the Committee would do away with the danger of any such injustice, because no sentence whatever could be carried into execution by these tribunals, except with the sanction of a higher authority than themselves. He would now beg the Committee to turn to the 15th clause of the Bill, to which his Majesty's Government meant to move some Amendment. They thought where Amendments were necessary, or where they thought they could meet the wishes already expressed by Gentlemen, of making such Amendments as in their opinion did not depart from the principles on which the Bill was founded, that it would be best to propose the Amendments at once, rather than to wait till the different clauses came before them in the course of the discussion. He would, therefore, beg of them to turn to the fifteenth clause, which provides, "That it shall and may be lawful for every such Court-martial, from time to time, to issue such orders as to such Court shall seem fit, for bringing before them any person charged by order of the Lord Lieutenant or other chief governor or governors of Ireland, or by some person duly authorized by him or them for that purpose, with any offence by this Act made cognizable by such Court, or for executing and carrying into effect any sentence, so confirmed as aforesaid, of any such Court respectively, which orders all Sheriffs, Justices of the Peace, Gaolers, Constables, Officers, and Ministers of Justice, and other persons to whom the same shall be directed, and to whom the execution thereof shall rightfully and properly appertain, shall, and are hereby required, to execute, enforce, and obey." It had been objected to that clause, that it would be desirable that no executive power should be given to the Courts-martial (he would use that name in speaking of these tribunals, though, strictly speaking, they were not Courts-martial in their constitution), and his Majesty's Government concurred in thinking, that it would be proper to limit the jurisdiction of Courts-martial so far as that they should be Judges of 837 the fact and offence only, and proposed, therefore, that instead of leaving it to Courts-martial, to throw the whole power and responsibility on the Lord Lieutenant, or those persons directed by him, to bring-persons accused of offences before Courts-martial, leaving to the Courts-martial the power only of taking cognizance of such cases as might be brought before them. He would next go to the consideration of the class of offences to be brought before the Courts-martial. He admitted, that it was desirable that no jurisdiction should be given to them which might interfere with ordinary civil processes, and it was therefore proposed by his Majesty's Government, that all offences should be taken from under their jurisdiction which were not strictly of an insurrectionary character, or which were not accompanied by violence, or threats of violence, as well as all cases which involved complicated points of law—which it was always desirable should not be brought under the cognizance of a military tribunal. With that view they proposed to except from the operation of the 17th clause of the Bill (which made persons liable to be prosecuted for offences contrary to the 27th George 3rd), all offences, even if connected with conspiracy or insurrection, when these offences were committed without violence or threats. But Ministers not only intended to take from the Courts-martial the jurisdiction in that class of offences, but to take from them the jurisdiction in another class of offences, which were always nice and complicated—and they meant to take it from them, whether the offences were connected with seditious matters or not—he meant the jurisdiction in questions of libel, because his Majesty's Ministers thought, that questions on the Law of Libel were not, in any instance, fit to be brought before a military tribunal. They therefore proposed to exclude all the offences enumerated in the 21st clause of the Bill, which gave Courts-martial jurisdiction over them. He meant to propose, that after the 17th clause, the following-words should be inserted:—"Provided always, and be it enacted, that nothing in this Act be considered to give power or jurisdiction to any Court-martial to try any person or persons charged, or to be charged, with publishing, or causing to be published, or hawking, selling, or disposing of any seditious handbill, paper, or pamphlet, in any proclaimed district, 838 or confederating or conspiring contrary to the provisions of an Act passed in the Parliament of Ireland, in the 27th year of the reign of George the Third, or for the trial of any civil right, unless such confederacy or combination shall be accompanied with force, or threat of force." By this Amendment, they would not only exclude such offences as were not strictly insurrectionary from the operations of this Bill, but also such offences as were made capital under the Whiteboy Act; and persons guilty of them would remain liable to the operation of Common Law. Having made these Amendments, they then proposed to alter the beginning of the tenth clause, and instead of the words, "and for the speedy and effectual trial and punishment of the several offences mentioned or referred to in this Act," to insert—"And whereas the ordinary tribunals for the administration of justice in the proclaimed districts have been found inadequate for that purpose, be it therefore enacted," He believed he might say, that Courts-martial were likely to be put in requisition in very few districts, but the power of having such tribunals at the disposal of Government would of itself be of great service, and would tend to prevent the necessity on the part of Government of putting the more rigorous parts of the Bill in execution. He would not, however, enter into further defence of the Court-martial clause, but would leave it to the Committee, having stated the grounds and principles on which his Majesty's Government thought themselves justified in making the alterations which he should move at the proper time. He had then only to move the Amendment he had mentioned in the beginning of the clause.
said, that if he had been aware of the statement which had been made by the right hon. Secretary, he should have brought down his letter-book, in order that he might show the right hon. Gentleman and the House the letter from Sir Edward Crosbie's son, on which he had founded his statement. He begged to ask the right hon. Secretary the name of the son who had written to him?
could not then say, but he should be able to state to-morrow. It however was not of much consequence, as the same statement had been sent to several of the Irish papers, and appeared in them. The writer, he believed, stated 839 himself to be the eldest son of Sir Edward Crosbie.
said, that the letter which he received was dated "Liverpool," and signed "Edward Crosbie," and that it contained a letter from the rev. Archibald Douglas, rector of Kilcullen, in Kildare. It mentioned that the writer was in distress. As Mr. Douglas was a clergyman high in the Church, and the brother-in-law of an Irish Peer, he thought that he was justified in making use of it; and it was impossible for him to suspect that it did not contain a true account of the writer.
did not, in the slightest degree, impeach the statement of the hon. and learned Member. The writer had, however, requested of him to take an opportunity of making the statement which the letter contained, in his place in that House, and he had accordingly done so. He did not know any of the parties concerned, further than from the circumstance in question.
§ Amendment agreed to.
§ The Clause read.
§ Mr. Cutlar Fergusson
rose to oppose the whole of the clause. He should fail in doing justice to himself if he did not state, that he considered the introduction of that part of the Bill as entirely hostile to all the principles of the Constitution. It took away the trial by Judge and Jury—that boast and safety of every Englishman. He admitted, that a case might be made out of such urgent necessity as to justify the Government in doing away Trial by Jury for a time, but the consideration of such a case was not then imposed on them. He opposed the clause, in the first place, because there was no precedent for such a measure. It was true, that Martial-law had been introduced into Ireland during the rebellion, but it was only during the rebellion, which could supply no precedent for the present measure, for there was no instance of its being introduced at a time when there was not only no insurrection, but a state of profound peace. He, therefore, thought it his duty to oppose it on the score of precedent. It had been asked what tribunal could be adopted in place of Courts-martial? But it was unnecessary to consider that question, because a case had not been made out which warranted them in departing from the ordinary law tribunals. Not a letter, not a fact, not even the statement 840 laid before the House by the noble Lord, justified them in such a course. It had been admitted by the noble Lord, and the fact ought never to be forgotten by the House, that the noble Lord had not brought one case before them where Jurors had not done their duty. And there was only one case mentioned in which it was attempted to be shown that Jurors were intimidated or threatened. He begged the Committee to remember, that it was not sufficient to justify such a measure as that before them, to say, that Jurors were afraid (and even of that there was only one instance adduced), but it must also be made out that the Jurors were deterred from doing their duty by those fears. But no hon. Member had ventured to state, that in consequence of that intimidation, any Jurors had been induced to give a false verdict. He called, then, upon the House to pause before they agreed to that clause—a clause which abolished the Trial by Jury, that boast of Englishmen, and delivered over a large portion of their fellow-subjects to the power of a military tribunal. It was not sufficient to say, that there was a degree of insecurity of property in Ireland which was not felt in this country. Every man in Ireland felt, that neither life nor property was so secure as it was in other countries; but that was no sufficient apology for the abolition of the Trial by Jury. In order to justify such a step, intimidation of the Jurors was likewise necessary. And what evidence had been brought of that intimidation of Jurors? Only one case—that of Carrickshaugh; and any one reading over the evidence in that case, must be satisfied that the Jury could not help feeling a doubt as to the verdict they should give. He thought, then, that he had shown, that there was no evidence on which to rest a case which would justify the abolition of Trial by Jury. He would, therefore, go into the consideration of the jurisdiction of the Courts-martial which it was proposed to substitute in their stead. These Courts-martial could take cognizance of capital offences. He was much mistaken if they could not take cognizance of capital of Fences. [Mr. Stanley: They cannot take cognizance of capital offences, except by the recommendation of the Lord Lieutenant.] The power to enable them to take cognizance of capital offences he would not give to the Lord Lieutenant. He objected to giving such a power to the Lord Lieutenant 841 or any other man. But Courts-martial were entitled to find parties guilty of capital offences; and the effect of that conviction was, the forfeiture of goods. So that, by this Act, these Courts-martial were to have the power, not only to banish, but to forfeit the goods of every culprit. The establishment of Courts-martial was objectionable in another view. It took away from the prisoner, not only Trial by an impartial Jury, but that assistance which every prisoner had a right to expect, and generally received from the experienced Judge before whom he was tried. This assistance was of great service to prisoners; and without if, he should consider the Trial by Jury almost a curse. And how was it in the Courts-martial? There was a Judge Advocate who was to assist the prisoner. But that Judge Advocate was the person who by law issued the warrant against the prisoner—he was the prosecutor—he had to examine the evidence before the warrant was issued—and it was on his opinion of that evidence that the prosecution took place. Was it likely that a man who had all these duties to perform should not be impressed with an unfavourable feeling towards the prisoner? Could he, at the same time, act as his prosecutor and assistant? On these grounds, he objected strongly to Courts-martial and he objected to them further, because he was afraid that the establishment of them might lead to the total subversion of Trial by Jury in that country. There was another part of the Bill to which he had strong objections, and that was the irresponsibility of those tribunals. By this Act they were declared irresponsible, for in the 26th clause it was stated "that all officers noncommissioned officers, and soldiers, who shall act under any such power and authority, shall, for and in respect of any thing done under such power or authority in any such proclaimed districts as aforesaid, be responsible to Courts-martial to be holden under any statute in force for holding Courts-martial, by which Courts-martial respectively they shall be liable to be tried and punished." So that these Courts-martial were to be specially exempted from the effects of any illegal acts they might commit under the Bill. That, they all knew, was not the case with ordinary Courts-martial, as those officers were responsible to the ordinary tribunals of the country for any illegal acts which they might commit in the exercise of their duties; 842 and there was at least one instance (that of Sir Charles Ogle, who was fined 1,000l. for an illegal act) in which officers were punished for such conduct. But that responsibility was all done away with by the present Bill, and he felt astonished that his Majesty's Ministers should have thought it necessary to make such a provision. He considered the introduction of the Bill as the greatest blow ever given to the Constitution. No case similar to it had ever come before that House—no such powers had ever been introduced into an Act of Parliament. It had been said by the noble Lord, and by several of the hon. Gentlemen who supported him, that in making an inroad on the Constitution, the further they should go the better. He begged to declare, that in all the books he had ever read, and in all the speeches he had ever heard spoken in that House or elsewhere, he had never seen or heard any doctrine which astonished him more than that, or which was more contrary to the generally received opinions on the subject. He had always understood that the doctrine inculcated by those who understood the Constitution most thoroughly, was, that it should be carefully dealt with, and that where an inroad was occasionally necessary, it should be to the least extent possible. He was decidedly opposed to making such extensive infringements on the Constitution, and was very much in clined to believe, that they would not be received elsewhere with the implicit consent which they seemed to meet with here. The proposed system was abhorred by the Irish universally, from their recollection of the horrors it occasioned in former periods. If carried into effect, it would prove the most efficient method possible of wholly alienating the minds of the Irish people from us. It could not be expected that they would regard the army there as a guardian angel intent only on the preservation of peace and order, but on the contrary, it would be looked upon as the vindictive instrument of persecution.
§ Colonel Davies
said, it was with much reluctance that he found himself compelled to support the Bill, in consideration of its absolute necessity. He could not, however, suppress his conviction, that if Government had resorted to the vigorous exercise of their power at the time when these unfortunate disturbances commenced, there would not have been the slightest necessity for the proposed measure. The Ministers 843 had no excuse to offer for this neglect. They had been urged, implored to do so, over and over, again and again, from every quarter. Not longer ago than last July there had been a representation made to the other House on the state of Ireland couched, almost totidem verbis, in the same language, as the representation on which his Majesty's Ministers had founded the present Bill. Not only had they refused to listen to these imploring representations—they had bitterly aggravated existing evils by the production of that most atrocious measure, the Bill for the compulsory recovery of tithes: and when they had thus brought the people to a state of despair, they came and asked the House for remedies of a nature against which every feeling of humanity revolted. But this was not a time to canvass the past conduct of Ministers. The great object was the present state of Ireland, a country where all order and tranquillity appeared to be at an end—the course of justice obstructed, jurymen assaulted. He only stated what he had heard. He did not say, that these representations had been proved; neither had he heard any proof to the contrary. At any rate it appeared that Jurors were intimidated, if not assassinated. Though he was opposed to the system of Courts-martial in general, yet let it be borne in mind that this was a case of no ordinary necessity. At the same time, he by no means saw that any such tremendous dangers were to be apprehended from the operation of Courts martial as hon. Members seemed to fear. They had protested against the violation of the Constitution, but could it be denied that the violation of the Constitution had commenced in Ireland? Who could read and hear of the appalling state of that country and doubt this? No man, he would repeat, regretted the necessity for establishing these tribunals more than he did, and nothing but a deep sense of their absolute necessity could have induced him to permit them. It was supposed that officers in the Army, from their education, their position, and their habits, must necessarily be inclined to despotic measures; he was far from concurring in these views. He thought that Gentlemen who were called upon to act in a country where they had no political or family connections, and who would be therefore free from party bias, he thought that such men would be much more likely to do 844 their duty impartially than men brought up in the midst of the factions of that unhappy country, and whose minds and judgments were never free from the most baneful party prejudices. He had been rather surprised at an inconsistency exhibited in argument by the hon. and learned member for Dublin. That hon. Member had objected to these officers on the ground that they would probably mix in social intercourse with the country gentlemen, and be biassed in their judgments accordingly. Whom did the hon. and learned Member propose to substitute? Why, those very country gentlemen themselves—nay, he proposed to enforce their attendance under the penalty of 500l. It had been also objected that the gentlemen ill the Army laboured under legal incompetence; but this tribunal was not to try any questions of law, nor questions of property; nor was it to try political offences; but merely to try whether A or B had or had not engaged in illegal meetings. He thought the officers of the Army were at least as competent to judge of the law on that point as the small farmers. But the members of this tribunal were not left entirely to their own judgment, for they might have the advice of the Assistant Banister. He was as much attached to Trial by Jury as any man; he considered it the palladium of English liberty: but when he looked at the state of Ireland, he saw no liberty there and no remedy for the present state of disorder, but passing the present Bill. If it was impossible to find within the pale of the Constitution anything efficient, they must have recourse to an unconstitutional tribunal, which nothing would induce him to consent to bat the urgent necessity of the case. Hon. Members seemed to be afraid that the Ministers, if they once got this coercive measure, would no longer trouble themselves about remedial measures; but this fear was most unfounded, for the very existence of Government depended on fulfilling its pledges, and the Ministers were solemnly pledged to remedial measures.
observed, that some of the remarks made on the subject of those military tribunals appeared to have excited considerable irritation. If it had been asserted, or insinuated, that an English officer would act from a feeling of prejudice, such a remark ought, undoubtedly, to raise a feeling of indignation. At the 845 same time he must assert, that the capacity of men for one thing, and incapacity for another, entirely depended on their education and habits. Therefore, however undoubted the uprightness and purity of intention of the officers of the Army—and no person could doubt them—yet they were very likely to fall into unintentional errors on points of law. Officers in the army could not be suspected of corrupt motives or intentional partiality, but he was afraid that when obscure evidence was given in those military courts it was not at all unlikely that serious mistakes would occur. He feared, also, from the attachment of officers to the Government, that there would be a tendency to consider every accused man as a political adversary. In making these observations he merely wished to express the opinion that military men were not free from those infirmities of nature to which other individuals were subject.
§ Mr. Perrin
could not give a silent vote on this part of the Bill. In his conscientious judgment he believed it to be unnecessary; in his conscientious judgment, he was convinced that it not only would not effect any good, but would be productive of the greatest mischiefs. He gave his Majesty's Ministers all due credit for the ground on which they brought the Bill forward placing their measure on the only basis of necessity; and he agreed, that, if they made out this case of necessity, if they established the fact that without the Bill there would be no protection for life and property, and no means of supporting social order, they were entitled to the Bill, or rather, not they, but the people were entitled to it. But the question was, whether this clause and the provisions connected with it were thus indispensably requisite? This alleged necessity was grounded upon evidence offered to the House, showing that Jurors had been intimidated, witnesses threatened; and it was therefore contended that these extraordinary tribunals must be resorted to. It was admitted, on all hands, that Courts-martial were a remedy which ought not to be resorted to, without absolute necessity called for them, as they were both arbitrary and unconstitutional. If this necessity could be proved, then Ministers had made out their case; but if it could not be proved, the measure was most grievously tyrannical. After giving due credit to all the statements relative to the alleged intimidation 846 of Jurors, he did not find that the Ministers had made out any case on this point, except as regarded the Carrickshaugh murders. This case he gave them credit for, but it stood alone; and was not its influence counteracted by the cases of Clare, of Queen's County, of Kilkenny, and by all the cases of the present Assize s. Was the solitary case of Carrickshaugh to outweigh all the others? Did Ministers think, that there was no efficacy in other provisions of the Bill? Were not the clauses already agreed to sufficient to put down agitation? Were they not sufficient to protect life and property, prevent midnight outrage, and secure tranquillity? They had made an immense increase in the military and constabulary force, and in the police, sufficient to preserve peace. If the other enactments were sufficient, what was the use of this clause of the Bill? If these powers were not efficient, what could the Courts-martial do? There was another Bill in progress—a Bill to which he should not refuse his consent—the Bill to change the Venue. These powers being obtained, what more could be wanted? With these they would have everything necessary to secure the due administration of justice. In no instance could it be proved that a Jury had failed in committing any individual under a criminal prosecution. The witnesses would not be less intimidated when Courts-martial were established than with ordinary Courts; and it surely was not intended to convict men without hearing witnesses? Other Courts had been suggested, but he was not favourable to Courts composed of barristers. He made no objection to Courts-martial on account of the officers not being men of honour and integrity; but he objected to summary tribunals. In the ordinary Courts the prisoner had the assistance of a learned and enlightened Judge—of a person who knew the laws and the rules of evidence. He objected to these Courts, that the officers were not fit to discuss and decide nice points of evidence and nice questions of law. What nicer questions could there be, in fact, to come before a Judge, than those which related to evidence. He sought for no other tribunals—he was willing to abide by the old tribunals of the country. They had been asked to suggest other Courts—he would suggest none; but he would say, let there be a continued Session of the Peace. Let there be barristers appointed 847 to relieve each other, and so the Sessions continued by regular adjournments, lie objected to this as a hazardous experiment; he respected the law, and he therefore objected to setting it aside by this Bill. He had been pleased by the declaration of the right hon. Gentleman, that this law should not be executed unless it were necessary. He sincerely believed that declaration; but he had a right to infer from the admission, that the law was not immediately necessary. He did not like the precedent, though he knew it had been said that it was made so wide a departure from the Constitution, because it might not be followed, and that it would not be followed. But that doctrine had been held on other occasions. It had been often repeated, and often refuted by the events. This doctrine had been referred to in 1829, when Earl Grey had objected to the Bill then introduced; but what did he say, in his opening speech, when he introduced this Bill to the House? Why, that the part of it which related to seditious meetings was merely a renewal of the Act of 1829. Another question which had been put was, would lie submit to Courts-martial, or to I White feet and Volunteers? He would submit to neither. The law-was strong enough at present, if it were fairly, fully, duly and impartially administered. Man was always corrupted by power, and he objected to intrusting men with power which must make them disregard the common law of the land. It was the duty of that House to make the law not on the principle that it would not be abused by good men, but on the principle that it should not be perverted or misapplied by weak or wicked men.
§ Mr. Rolfe
wished to state the reason for his vote. He had been at first much and decidedly opposed to the clause, but, at length, after listening to the debates, he had become a reluctant convert to it, and meant to give it his support. He was prepared for the taunts implied in the cheers of hon. Members opposite, but he knew no silliness of folly equal to, and no cowardice greater, than that of persevering in error for the fear of being thought afraid. His conscience dictated the course he meant to pursue. The hon. Gentlemen opposite thought, by their taunts, and almost by their threats of asking what the people would think, to deter Members from their duty. Those who supported 848 the Bill were accused of being ignorant of Ireland, but the conduct of the Gentlemen who opposed it showed that they were ignorant of the feelings of England. If they were blinded by their antipathy to the Bill, to suppose that there was little feeling in England to support the measure, they were mistaken. There was a strong feeling in England—a feeling of indignation at the time the Bill had occupied. He did not go along with that feeling. He thought the Gentlemen who opposed the measure were bound to sift it and weigh it as much as possible. Another feeling certainly had existed; it was thought that this clause was a severe clause, but that feeling had died away. It was the duty of the Representatives to state why they supported this clause, and he would do so. The hon. and learned Gentleman who spoke last had relieved him from one great difficulty. The hon. and learned Gentleman had stated, that if there was not to be Trial by Jury, he did not know what better could be substituted. The hon. and learned Gentleman had proposed none, and said he knew none Letter than military tribunals. If that were admitted, on that reasoning, as soon as it was shown that Jury trials were not safe, then military tribunals were justified. If it were admitted that Jury-trial could not take place, and none other were suggested than military tribunals, they must be had recourse to. It was enough for him to satisfy himself that it might be necessary to find a substitute for Jury-trial, as the hon. member for Monaghan admitted, to justify the military courts. Might they not be necessary? That was the question. It was said, that it was not proved that Jurors had been intimidated; but it was the part of wisdom to be as well satisfied by a priori reasoning, as by the evidence of facts. Intimidation had been practised against all other classes; no man in Ireland was a free agent; and were, then, the Jurors the only class that were exempt from intimidation? But there was evidence of intimidation. Carrickshaugh was a case of this kind; but that was not enough; the administration of justice ought not to be suspected. The right hon. Secretary had mentioned that in Clonmel 288 names were called over before a Jury could be impanelled. The hon. member for Drogheda said, that it proved nothing more than that the Jurors would not come forward. If it were indolence 849 only, it might be excused; but when murder was stalking through the land, was not that an occasion when indolence should be overcome? Again, at Kilkenny, fines were levied to the amount of 20l., 30l., and 50l. before the Jury could be compelled to attend. What was the cause? Was it anything but intimidation? At least, they could not get Juries, and not getting Juries, should they not provide some other means for the Administration of justice? He, for one, could not think of calling upon persons to administer justice at the risk of danger to their own persons. He, for one, had been slow to form the opinion that military courts might be substituted for Jury-trial, but he saw no other resource. He was aware of the reverence in which trial by Jury was held in England—a reverence which he did not wish to shake; but the source of that reverence was to be found in the fact, that over the Jury there presided a Judge, a venerable, respected man, who summed up the evidence, and made a charge to the Jury before they finally decided. He should wish, however, to see some modification of the clause. In Courts-martial there was a Judge Advocate, and he recommended that the Judge Advocate should be empowered to sum up and recapitulate the evidence, so as to fulfil in some measure the functions of a Judge when charging the Jury. He was justified, he thought, in supporting the clause; it was necessary to give the Government additional power, and he meant to make his vote conform to his opinion.
The Earl of Darlington
took a different view of the subject from that taken by the hon. Member who had last addressed the House. He was not surprised at the jealousy exhibited upon the subject of Trial by Jury, but thought if they were to have Courts-martial at all, their efficacy should not be frittered away. The alterations introduced by the noble Lord (the Chancellor of the Exchequer) appeared to him to render the Courts-martial nugatory. He did not think that these latter tribunals should be so far assimilated to Juries as to require anything approaching unanimity in their decisions. He admitted, that no class was more respectable than that from which Jurors were usually taken, but they were of a different class from officers in the army, who would not be so disposed to yield up their opinions to others, as would be the case with individual Jurors. 850 He objected also to the admission of Counsel into Courts-martial for professional purposes. The precedent which the Bill would in this way establish, might prove very injurious. It tended to alter the whole military law, as it related to—Courts-martial. If the alterations recently proposed by the right hon. Gentleman were to form part of the clause, he should certainly oppose it altogether.
§ Major Beauclerk
opposed the clause. The members of Courts-martial were all more or less under the influence of the Horse Guards [No, no]. He would repeat the assertion, that all Courts-martial were indirectly under the influence of the Horse Guards [No, no]. He would prove his assertion ["It is impossible."] He would assert, that when first he went into the army there was a great difference between the decisions of Courts-martial and their decisions at present. He had often witnessed with the deepest indignation persons flogged till their flesh was torn from their backs. He asked if that were not the fact? Was it not true, that men were not now flogged as they were formerly? When he first joined his regiment at Halifax, there was scarcely a morning when he was not dragged from his bed to witness the men of his own regiment lashed till the flesh was torn from their backs, or when his sleep was not disturbed by the cries of men belonging to other regiments who were suffering the same torture. He asked, was that the case now? No. Where 100 lashes were inflicted formerly, not one was inflicted now. The Courts, however, were the same—the law was the same—and what, then, had produced the alteration in the decisions of the Courts? Orders, he asserted, orders from the Horse Guards. Formerly cruelty was thought praiseworthy—now it was discountenanced. But why? Because the humanity of the people of England had increased, and the people were against it. He remembered the exertions of the worthy Baronet opposite to denounce the hateful practice of flogging; and those exertions had led to issuing orders which had modified the decisions of Courts-martial, though the law remained the same, and the offence was the same. He knew that the same thing had taken place in the navy. He, then, would not give power to men who were under the influence of the Horse Guards. It would tend to establish a despotism, and bring ruin on 851 the country. He denied that the effect of the Bill would be what was anticipated, and instead of facilitating, it would impede the administration of justice in Ireland. He looked with as much horror to the scenes of bloodshed which were now visible in Ireland as any man, but military tribunals would provoke irritation and increase the disorder. He therefore must oppose this part of the Bill in particular, as indeed he opposed the whole measure. It might produce a temporary calm, but it would only be of short duration.
§ Lord Hotham
referred to the assertion of the last speaker, that Courts-martial were always under the influence of the Horse Guards, and left it to the House to decide whether what the hon. Member advanced had at all established his position. The subject of military flogging-had been improperly and unfairly introduced into the discussion, especially as the seventeenth clause of the Bill expressly prohibited the Courts-marlial from inflicting that species of punishment. He did not mean to complain that Ministers had thought it right to make very recent alterations in the Bill, the nature of which had been stated by the right hon. Gentleman; but at the same time, he did not think that they would make the measure more palatable to its opponents, while they would materially impair its efficiency by rendering the influenee of the military tribunals less powerful, and less extensive. It now appeared that a number of officers of rank were to be sent over to Ireland to aid in the trial of offenders, but it had not been stated in what way they were to aid those trials—whether they were to preside, or whether they were to form the whole body of the Court. Upon this point, therefore, further information was necessary before the House could decide upon the probable extent of their utility. At all events, he thought, since the militray tribunals were not in fact Courts-martial, that the (to some) objectionable term "Court-martial" might be omitted in the Bill. The constitution of the tribunal was in several respects different from that of a Court-martial, and it was a point not unworthy consideration, what effect might be produced upon soldiers by this new institution, which applied a different mode of administering the law to one class of the King's subjects to that which was applied to another. He (Lord Hotham) feared the effect of so wide a 852 distinction upon the minds of the military, and he begged to know from the Secretary at War, whether it was intended to introduce a corresponding alteration in the Mutiny Bill in favour of the army?
§ Mr. Edward Curteis
could not admit that the Horse Guards influenced, in any way, the decision of Courts-martial. He believed if the Horse Guards attempted any thing of the kind, these Courts would have come to the very opposite conclusion. He had himself served in three different regiments, and in all there had not been so much punishment inflicted during the whole time he served, as had been exercised in the single regiment mentioned by the hon. Member.
§ Mr. Warburton
was not at all afraid lest by this Bill the soldier should be converted too much into a civilian, for he thought the effect of it would be the very reverse. A noble Lord had said, that Courts-martial were more enlightened tribunals than the ordinary Courts; but if such were the case, which he denied, still there was a strong and a vulgar prejudice, in England at least, in favour of a man being tried by his peers. A Lord liked to be tried by Lords, and a peasant felt more confidence in a Jury consisting of persons of his own station. It was true, that a sentence equally just might proceed from a military as from a civil tribunal; but it was not sufficient that the sentence should be equally just; it ought also to appear to the people to be likely to be equally just, in order that there might be general confidence in the tribunal. He doubted whether this confidence would be reposed in a military court; or, rather, he was satisfied that it would not. He asked why persons accused before Courts-martial were not to be allowed the benefit of counsel? In a marching regiment, where for military offences it was necessary to attain fesinum remedium, it might be inconvenient to allow of counsel for the accused; but he did not see that there existed a like difficulty in the case of civilians brought before a military court, which was held in a fixed place. He begged to take this opportunity of repeating a question he had put to the noble Lord (Althorp) on a former night, and to which it was important to have an answer before the Committee came to a decision on this clause—namely, whether the sentences of Courts-martial might be sent back for revision "? When political feelings were excited, 853 and the passions of men heated, it was more than ever necessary that persons accused should be surrounded with every species of protection, and the fitness of it was established by the celebrated case of Thomas Hardy.
Sir John Dalrymple
said, that he did not remember to have heard it asserted on any former occasion that Courts-martial were under the influence of the Horse Guards. The gallant Officer (Major Beauclerk) had said, that he did not allude to individuals, but still it was the duty of every officer who had the interest of the service at heart, to protest against such statements when he knew them to be unfounded. It was very hard upon the Ministers now to blame them for the introduction of alterations which they had made at the suggestion of hon. Members on both sides of the Mouse, who had proposed them as improvements. No man could entertain stronger objections than he did to this measure; and it was only within these few days that he could bring himself to lend it his support. He felt convinced, however, from what he had heard as to the state of Ireland, in the course of the discussions upon this Bill, that it was necessary to intrust the Government with strong power.
reprobated the assertion that Courts-martial were in any way influenced by the Horse Guards. It was not fair to draw any inference as to punishment in the army from what the gallant Officer (Major Beauclerk) witnessed in Halifax, for that gallant Officer then belonged to the worst regulated regiment in the whole service. The hon. Member had betrayed the greatest ignorance as to the constitution of Courts-martial. It was impossible that punishments could be at all times equal in severity for offences of the same kind. When it became necessary to make an example for the purpose of preserving discipline, a severer punishment might be inflicted than was usually apportioned to similar offences. He was as averse as it was possible to be to flogging in the army, and nothing could induce him to be reconciled to it but a conviction of its indispensable necessity. The gallant Officer had on a former evening when he was not present, stated that on Courts-martial junior officers were known to yield up their opinions to those of officers of superior rank. The hon. and learned member for Dublin had said, that Courts-martial, and officers of regiments generally, were sometimes influenced 854 by party feelings—that the Major had his party, and the Colonel his party. There was, however, no such thing in any well regulated regiment. If he were conscious of innocence, there was no tribunal he would sooner be tried by than by a Court-martial.
§ Lord Althorp
said, with reference to the question of his hon. friend the member for Bridport, as to the course to be pursued in case the Lord Lieutenant disapproved of the sentence of a Court-martial, his answer was simply this—the Lord Lieutenant would have the power of decreasing the punishment, but not of increasing it. It had been asserted that he (Lord Althorp) not having brought forward any case of outrage against a Juror, had abandoned the argument to be derived from the intimidation of Jurors. That inference did did not follow; it was not necessary to come forward with a case of a personal attack on a Juror in order to justify the inference of intimidation and alarm sufficient to prevent the jurors from discharging their duties properly—an inference fairly deducible from the outrages and disturbances generally prevalent in Ireland, and which rendered it impossible to administer the law with effect by means of the ordinary tribunals. Besides, there might be intimidation even in cases where persons were, perhaps, properly acquitted, as in the Carrickshaugh trials. That case clearly showed intimidation of Jurors. But if the general mass of the people were intimidated, how were Jurors to escape the influence of the general feeling? If the class of farmers from which petty Jurors were selected, experienced the effects of intimidation, Jurors could not be exempt from apprehension. With respect to the present clause, it constituted the main part of the Bill, and if it were omitted, the adequate protection afforded by the quick punishment of offences would be entirely done away. Much had been said about the incompetency of military officers to decide such nice questions as might be submitted to them under the Bill; but he did not conceive that nice legal questions would ever come before them. What they would have to decide was, whether or not a man had been guilty of a particular offence; and it could not be pretended that it would require much legal subtlety or acumen to determine yes or no on a plain matter of fact. He saw nothing in the objection of the noble Lord 855 (Lord Hotham) with respect to the assumed discontented feelings of the military at seeing the distinction made between the operation of Courts-martial in civil and military cases, because soldiers would, in all cases still continue to be tried as usual. He frankly admitted the abolition of Jury-trials to be a great evil; it was a thing only to be defended on grounds of necessity, which had been clearly demonstrated in the present case. It was said that, at the present Assizes, Jurors attended and convictions took place; he was glad to hear it, but the circumstance did not form a conclusive argument against the Bill. The state of society in Ireland with respect to outrages and unlawful combinations continued such, that assuming no feeling of intimidation to exist among Jurors, at present (rather a violent assumption by the way), there was no security against a speedy revival of such feelings.
§ Mr. Sinclair
referred to the exemption of political offenders from trial by Courts-martial, and declared that it appeared to him a hard and unjust measure, to give one sort of tribunal to the rich and another to the poor. This was binding the poor in chains and the rich in cobwebs. With respect to the supposed necessity for the measure, he had seen no proof that the ordinary tribunals were inadequate to the enforcement of the law. He would vote against the clause.
had not hitherto expressed an opinion as to this Bill, and he should not trespass on the attention of the House, did he not feel called upon to make some observations on the clause under consideration. He was aware that it was necessary for him to confine himself to the details of the Bill; but he begged leave to state, in a few words, his opinion as to the propriety of introducing this measure. When he remembered the arguments adduced by hon. Gentlemen on both sides—when he recollected the statement of his right hon. friend, the Secretary for Ireland—fortified as it was by the statement of his noble friend, the member for Nottingham, (who had given, on this subject, the most important information) he felt bound to express his concurrence with the opinion of the majority of the House—that it was absolutely necessary to intrust the Government with the large additional powers they demanded. With respect to the particular clause under 856 consideration, he regretted that the term "Court-martial" had been applied to the tribunal about to be instituted. In point of fact, it was not a Court-martial, but a tribunal novel in its construction. He was not surprised that the observation of the hon. member for Surrey should have excited warm feelings in the breasts of Gentlemen belonging to the military profession; and he certainly was extremely surprised to hear the hon. Gentleman assert, that the officers of the array, sitting in those courts, were unduly influenced by the Horse Guards. Was it possible, that those who recollected the severity of the punishments in the army twenty years ago, and considered what they were now—and who reflected, also, how seldom, comparatively speaking, they heard of the infliction of punishment at all, could for one moment imagine that there was anything like a desire on the part of the officers of the army to curry favour, at the head-quarters of their profession, by pronouncing severe sentences? Did the gallant Member suppose that, while such improvements had been taking place in all the rest of the community, the officers in the army alone had stood still? It was obvious that the effect of public opinion had been to lead to a mitigation of punishment, both as regarded the civil and the military law; and he should cast a stigma upon the officers of the army if he could entertain the opinion of Courts-martial which the hon. Member had expressed. Looking to the tribunals to be constituted under this Bill, he thought that there was a great inconsistency in applying the term "Courts-martial" to them. The tribunal differed from the Court-martial as much in its machinery as in the nature of the law which it would have to execute. He was sorry, also, that the term "Judge-Advocate" had been retained; for these courts were to try criminals, not by military law, but by the common law of the land. Those, however, who were to constitute the court, and were confessedly unused to administer the common law, should have some legal assistance; but it should not be given by the person conducting the prosecution. He would much rather have a Serjeant-at-law, or a King's Counsel, as President of the court, whose duty it should be to sum up the evidence, and state the law on the case, and the duty of the Judge-Advocate should be 857 solely to conduct the prosecution. Counsel were to be allowed to cross-examine witnesses; and, yet it was intended that the examination of the witnesses for the prosecution, and the cross-examination of the witnesses for the defence, should be performed by the Judge-Advocate. Now, it was hardly possible that he who had objected to questions, and whose questions had been objected to, would have the same character of impartiality as if he had not taken such a part in the proceedings of the court. He, therefore, would much rather that the President should act merely as assessor and legal adviser of the court; and, on these grounds, he thought it desirable that Government should either name a person to conduct the prosecution, or allow the Judge-Advocate to do that, and appoint a legal gentleman of eminence to preside in each court. He must, also, take notice of an alteration in the constitution of these courts, which he was surprised had been introduced, and considered as a boon, and as rendering these tribunals less objectionable than Courts-martial—he alluded to the principle of restricting the members of the court to officers of the rank of captain. Now, in the ordinary course of things, a sufficient number of officers of that rank could not be brought together to form a court, without detriment to the service. Therefore, he presumed it was—that Government had adopted the plan of sending officers over from this country for the express purpose of forming these tribunals. That arrangement appeared to him to be open to the most serious objections. He thought that it would be infinitely preferable to let the officers form these courts in the usual way. He was satisfied, that the plan now proposed would be open to the worst charges. It would be said, that the officers were picked out from the half-pay, instead of being taken in the regular course of service, from a desire to forward the views of Government. It would be said, that if the officers did not find their verdicts in conformity with the wishes of the heads of the army, they would be removed from full-pay to half-pay. He would have much rather had the clause as it originally stood; and would have allowed subalterns to be upon these courts, of more than twenty-one years of age—provided that they had been two years in the service. He did not 858 think that it was necessary, that a man should be many years in the service to qualify him for the discharge of the duties of a member of a tribunal of this nature. If a person were qualified to sit on a grand or petty Jury, and to perform any civil act, he was surely qualified to sit on a Court-martial. He mentioned these things, not with a view to embarrass the Government, but because they seemed to him to be of importance. He would only add, deeply as he regretted it, that the Government had made out a case which rendered it necessary to grant these powers. He had never, upon any occasion of this grave nature, allowed party-feelings to influence his conduct; and whether he had been acting with Government, or not, he had never refused to grant, in times of emergency, additional powers, on the responsibility of Ministers. It appeared to him that it was a principle of the Constitution, that as, in ordinary times, a great degree of liberty was allowed, so in seasons of emergency, Parliament must have the power to suspend the liberties of the people, and to grant additional powers to the executive. In throwing out these suggestions he was now only influenced by the wish of rendering the measure as efficient as possible.
§ Mr. Abercromby
said, he had hitherto given his support to Ministers on this measure, but now they had come to the Court-martial clause he found it impossible for him to support it; indeed, he meant, however painful it was to him, to oppose it, and he begged leave to state shortly on what ground he opposed it. The question was, had a necessity for so severe a measure been shown? This was by far the weakest part of the Bill. No attempt had been made to answer the evidence adduced, or the powerful arguments used by the hon. and learned member for Dublin against this clause. He (Mr. Abercromhy) really could find neither such amount of intimidation, nor such systematic efforts to carry it into execution, to satisfy his mind that they were justified in pronouncing the ordinary tribunals of the country inefficient. Nor could he agree with the argument which he had often before heard used, that when you over-stepped the limits of the Constitution, you should do it boldly. He confessed, that though he had heard attempts to justify that doctrine, they had 859 little effect on his mind—he was not convinced by such arguments—but, on the contrary, considered that whenever the barrier of the Constitution was passed without sufficient reason, without the direst and most manifest necessity, a gross injustice was committed on the rights and liberties of the nation. It had been argued that this was really a measure of humanity; for although the Bill operated as a measure of terror, it was humane in deterring men from guilt. The argument had no great effect on his mind; but he answered, that whilst they confined themselves within the limits of the Constitution, they would carry along with them the sympathy of all considerate and reasonable men. By having recourse to a system of terror, they would find it a source of weakness, by its increasing discontent and dissatisfaction. The Assizes now going on, particularly the convictions at Kilkenny, justified him in asserting, that means could be found to enforce the law without resorting to such dangerous provisions as were contained in that clause. He was very glad to hear that his noble and his right hon. friends entertained a hope that it might not be necessary to put this obnoxious part of the Bill into practice. He certainly approved of the suggestion, that whenever a district was proclaimed, a person of authority in the law ought to be sent to that district; and that it should be only after all the ordinary means of rendering justice had been resorted to, that the extraordinary means authorised by the Bill should be carried into execution. This ought, in his opinion, to be one of the first considerations with his right hon. friend, immediately after the passing of the Bill, as thereby the most odious part of the measure might be avoided. He pressed this the more on his noble and right hon. friends, because he entertained a deep and overwhelming conviction, that there could not be a more dangerous and mistaken policy than to make use of officers of the army in cases in which the political feelings of the people were concerned.
had listened with the deepest attention to his right hon. and learned friend. He need not say, that for his right hon. friend's character he entertained the highest respect. It was not only, however, his respect for his right hon. and learned friend's private character that made him regret to find 860 his right hon. and learned friend differ from his Majesty's Government respecting a point on which they had felt it their painful duty to adopt what appeared to them to be the only expedient course, but because he also felt, that whatever fell from his right hon. and learned friend must, under any circumstances, have great weight with that House. In one part of his right hon. and learned friend's statement, he had not done justice to his Majesty's Government—he meant that part in which his right hon. and learned friend alleged that his Majesty's Government had not done what his right hon. and learned friend thought, and what he (Mr. Stanley) thought, they ought to do—namely, to reserve a recourse to military tribunals as the last resource, when all other modes of administering justice had failed; and, above all, not to mix up military tribunals with any considerations of a political nature. Now, that was precisely the provision made by his Majesty's Ministers on the subject. Wherever there was the appearance of any offence involving considerations of a political nature, his Majesty's Government had, unasked, unpressed, but from their spontaneous feeling, struck that offence out of the list of those of which the military tribunals were to take cognizance. All offences connected with libel, with seditious publications, with political meetings, and with the Press, they had at once struck out. Was it, then, quite fair on the part of his right hon. and learned friend to impute to his Majesty's Government an attempt to constitute these military tribunals for political purposes. Good God! what were the political offences which these military tribunals were to investigate? Whitefoot outrages, burglaries, robberies, houghing of cattle—all abuses and violations of the rights of property, carried on by an organized force, paralysing the ordinary law, and intimidating the timid and weak; such were the political offences which were to be submitted to the cognizance of these military tribunals, for Courts-martial they were not, in the ordinary sense of the words. With respect to intimidation, he should have been very much astonished if any Irish Member had stated that there was none existing in Ireland. There was different evidence on different points; but there was no point on which there was stronger evidence than that the middle 861 and lower classes in Ireland evinced the greatest reluctance and alarm at the idea of being compelled to attend on a Jury. With respect to the unprecedented number of Jurors at the late Assizes at Kilkenny, he confessed that he had no confidence in these sudden conversions. If a more healthy tone had gradually appeared—if there had been gradually less alarm and more confidence, then he should have said there was some plausibility in the argument founded on the large attendance of Jurors in question. But when they saw at one Assizes that it was almost impossible to obtain any Jurors—when the Civil Court was almost deserted—when only six weeks ago it was predicted, that no Jury could be found to convict persons charged with offences; and when he found, suddenly, that on the introduction into Parliament of a measure which was to be productive of the greatest restraint on the lawless and the turbulent, and on the agitators who at present exercised so extensive a power over the people—when he also knew how important it was to the latter to endeavour to produce an impression that the provisions of the Bill were unnecessarily harsh and severe—he confessed that, he derived from the sudden and rapid influx of Jurors at Kilkenny anything but satisfaction and confidence. He read in it the complete and systematic organization of a plan to prevent the law from being rendered effective. If, however, he were driven to the other argument, and if the Bill had already struck a salutary terror into the evil-disposed, and imparted a salutary consdenceto the well-disposed, in that statement he saw an argument not against passing the Bill, but in favour of passing it. Adverting to the character of Juries, he observed that, with reference to Coroners' Juries in Ireland, it was notorious, that in many cases they were actuated by a determination to find one and only one verdict. The hon and learned member for Tipperary had said, in answer to his noble friend—and the statement had been confirmed by the hon. member for Limerick—that the petty Juries were not taken from the lower classes. The fact was, that the Sheriff was compelled to look not only at the property of those who were to be the Jurors, but also at the neighbourhood in which they lived; and was compelled to take care that they lived in houses like fortifications, and were able to defend themselves from the populace. 862 How greatly was the argument urged against the Bill on the ground of constitutional right weakened by that fact. For where was that principle of constitutional security which declared that every man should be tried by his Peers? It had been urged that the gentry had not come forward. They had come forward, and had occupied places not only in the Grand Juries to which they belonged, but in petty Juries, in the absence of persons better suited for that station. All this was undoubtedly wrong; it was in fact trying the people by the aristocratical class. But, in the existing circumstances of Ireland it was unavoidable; and the fact that it was so, weakened the argument which was founded on the suspension of the Constitution by the Bill. It was recommended by his right hon. and learned friend, that, in lieu of Courts-martial, the Lord Lieutenant should send down a kind of standing Commissioner into the disturbed districts to try offenders. There was nothing in the Act to prevent the Lord Lieutenant from doing this. He would go further, and would say, that, if there were reason to believe that a Special Commission could effect the objects which the Bill was intended to effect, he perfectly agreed with his right hon. and learned friend, that it would be infinitely better to retain the ordinary than to adopt any extraordinary tribunal. But if, week after week, it should appear, that this was not the case—if, week after week it should appear that only the higher classes could come forward with impunity, and that the lower classes could not attend as Jurors before a Special Commission without great risk and odium, then surely it was right to give the Lord Lieutenant, in the last resort, the power which the Bill under consideration conferred upon him. Under such circumstances, it appeared to him to be infinitely better, on the part of his Majesty's Government, to come forward boldly and ask Parliament: "Have you sufficient confidence in us to place this formidable measure in our hands?" With respect to Special Commissions, the only time at which they could be advantageously resorted to, was when parties began to give way, and when information flowed in to an extent which it was sometimes frightful to contemplate. Once let that corner be turned, and a Special Commission might be productive of great benefit. His Majesty's Government had 863 sent a Special Commission to the Queen's county. That Commission had been successful, as far as convictions went, but it had not been successful in breaking flown the existing system. But, said the hon. and learned member for Dublin, why did you not send a Special Commission to Kilkenny? He could tell that hon. and learned Member, that a strict inquiry had been made into the state of the prisons, into the means of information, and into the probability of obtaining convictions; and that if there had been any chance that prosecutions would have been successful, the Judges would have been instructed to proceed from Maryborough to Kilkenny; but there was none. Intimidation, as affecting Courts of Justice, was still prevalent. It was true, that there had been convictions. Yes, right or wrong, there had been convictions. Guilty and innocent had been convicted indifferently. Jurors had come forward and convicted, under what influence he knew not, and would not say. This he would say, however, that not one case in twelve, sent to Juries by Government, although on what appeared to be certain evidence, had been successful, for that in not one case out of twelve had the witnesses appeared; and that in not one instance in twenty had any case been substantiated, except by the evidence of the police alone. If this did not show the existence of extensive intimidation in Kilkenny he would abandon his argument. As conclusive evidence of the existence of intimidation, he would refer to the case which had lately been quoted by the gallant Colonel, the member for Sligo. A witness examined before the Committee on the state of Ireland, was asked—"To what do you attribute the state of insubordination which exists in Ireland?" The answer was—"Do you insist on my telling you?"—"Do you object?"—said the Committee. "I do," replied the witness; "for if I were to answer, and to answer correctly, you know well that my life would not be safe." So satisfied were the members of this Committee—Irish Members be it observed—of the validity of this objection, that they struck out of the evidence the answer of all answers most elucidatory of the very point they were investigating. It had been said that it would render the officers of the army obnoxious to place them in a judicial situation in Ireland; and that they would be subject to the imputation of being 864 biassed and partial. Now it happened that the hon. member for Waterford had yesterday let out this important fact, namely, that if a choice were given to the great mass of the population of Ireland by what tribunal they would be tried, their answer would be, that they would be tried by a tribunal constituted of officers of the army. So far as the feelings of the people of Ireland went, Courls-murlial were not there considered a more invidious sort of tribunals than Courts of Justice. For his own part, considering the state of Ireland, he could not take upon himself the responsibility to which he would be liable, if his Majesty's Ministers did not come to the House for some such powers as were proposed. They threw themselves on the House, and trusted that it would place such confidence in them, as to believe that they would not abuse those powers, which nothing but painful necessity could ever have induced them to ask for.
§ Mr. Sheil
denied, that the right hon. Gentleman had answered the right hon. Gentleman, the member for Edinburgh, whose opinion, expressed in opposition to his party, would make a great impression upon the House. The right hon. Secretary asked to be trusted with this authority upon a pledge that it would not be abused; but he (Mr. Shell) was not ready to intrust arbitrary power to any one, unless a complete case was made out. Was the House convinced that the Lord-lieutenant or the right hon. Secretary would remain in power till Autumn? They were, perhaps, about to leave the Bill as a legacy to Tory successors. Was it just, if he (Mr. Sheil) inflamed the people by his speeches, if they were excited by libels and seditious newspapers, that he and others, who were the causes, should be tried by Juries, and the wretched peasantry only be subjected to Courts-martial?
read a letter which he had received from a Magistrate of the county of Kilkenny, corroborating the statement of the right hon. Secretary for Ireland. That Gentleman stated distinctly that the loyal attended the present Assizes at Kilkenny, from a wish to suppress the disturbances in their county, and the disloyal from a desire to make the country believe that there was no intimidation practised upon them. He was himself an ardent lover of freedom, but he was convinced 865 that this clause was necessary for the protection of the unoffending and peaceable inhabitants of Ireland against the lawless and the disaffected. His opinion was, that a case had been made out by his Majesty's Government. The disease under which Ireland was labouring was severe, and therefore it was necessary to apply to it a severe remedy.
§ Mr. O'Ferrall
, in reference to the letter read by the preceding speaker, asked the House what opinion they ought to form of the judgment of a Magistrate who set himself up as a judge of the loyal and the disloyal in the county wherein he resided. If the Juries in Ireland had been base enough to shrink from doing their duty, he would have granted Ministers the power which this clause proposed to give them; but the contrary was the fact, and he must, therefore, pause before he confided to them a power which nothing but the most urgent and palpable necessity could justify. He would pass this Bill without the Court-martial clause until the end of the present Session, and if at that time it were proved, that the Juries of Ireland had not performed their duty manfully and honestly by their country, he would grant them this clause too; but he looked upon it as monstrous, to propose to abolish the Trial by Jury and to erect Courts-martial in Ireland for the trial of civil offences, whilst Parliament was sitting and Juries and witnesses were performing their duty. Impressed with this conviction, he was determined to give his most strenuous opposition to this clause.
§ Mr. Shaw
felt himself in a considerable difficulty with respect to the clause then under consideration. He was committed to its principle, and felt at that moment as strongly as ever the urgent and undeniable necessity of the measure introduced by his Majesty's Ministers; but what he feared was, that the measure would be inoperative from alterations made since its introduction, and from the general policy towards Ireland with which it would be accompained. While he fully agreed with his hon. and learned friend the member for Monaghan (Mr. Perrin), that a departure so violent as the present from the established laws and Constitution must be either absolutely necessary or grievously unjustifiable, he also was of opinion, that to make a complete case of justification they must be satisfied that the substitute 866 proposed would be efficacious. Of the strong necessity of a power beyond the ordinary laws to restrain the disaffected in Ireland, he could not entertain a doubt. The late Kilkenny Assizes had been adduced as an argument on the other side; but Baron Foster, the Judge who presided there, had stated, in his charge to the Grand Jury, that for four successive Assizes he had found the county progressively becoming worse—that on the last occasion there was not even a record for trial—that the law could not be administered—that it was not only process for tithe, but process of every description had been rendered impracticable, and that the British Constitution had ceased to exist in the county of Kilkenny—that of the offences reported, not one-twelfth were ever attempted to be prosecuted, and he calculated, not one-twentieth of those committed. But his (Mr. Shaw's) difficulty arose from the manner in which the Bill had been weakened, and its provisions frittered away. Those best acquainted with military tribunals, seemed to think, that the alterations made in the formation of the Courts, would render these ineffective, and his own opinion was, that while, in the absence of the ordinary law, he knew no tribunal to which he could so willingly commit his property, his liberty, or his life, as to the honour and generous forbearance of a British officer, yet, that if five independent gentlemen, unversed in the technicalities of evidence, who were to be perplexed by counsel, and not assisted by a Judge, were required to be unanimous in their judgment, such a court was not likely to be prompt or efficient in the despatch of business. But a much greater objection, in his mind, to the Bill as it now stood, was, that, although the great inducement Ministers held out when they asked for enactments more severe than ever any other Government proposed was, that they would put down political agitation, and rather punish the man who incited others to crime, than the poor deluded victim of his mischievous harangues—the Bill as then altered would altogether fail to reach that evil; its most important provision, in that respect, as copied from the 10th Geo. 4th., had been abandoned—namely, the power to two Magistrates to suppress an unlawful meeting. They might, no doubt, bind over the persons present at it to take their trial by indictment 867 for a misdemeanor, but then those very persons might return to the same meeting, and the alteration in the Bill had deprived the Magistrates of the power to put a slop to the meeting by means of summary conviction and immediate punishment. The trial of political agitators in the proclaimed districts was also withdrawn from the summary tribunals, whereas that class of persons was much more likely than the humbler offender to find sympathy in the minds of a Jury sitting in a disturbed district, and probably more or less affected by the prevailing excitement. He could not reconcile it with justice or propriety, thus to let the real offender, the cause and origin of all the outrage and insubordination which had subverted the laws, escape, while the unhappy dupe of bis designing artifice was to be visited with all the severities of those peculiarly severe enactments. For the suppression of political agitation, he considered the Bill had been rendered almost if not altogether nugatory. It certainly was not the fault of Ministers, if the hon. and learned member for Dublin were not able as he had stated, to drive a coach and four through the Act. He did not, he confessed, feel much confidence in contributing to place these powers in the hands of his Majesty's Ministers. He believed, that his Majesty's Ministers would not succeed in quieting Ireland. He saw nothing but ruin and loss in prospect. It was likely, that the two countries would be separated. He hoped he might be wrong; but it was his honest opinion. He might be considered a gloomy prophet. He should, however, give his very reluctant consent to placing these powers in the hands of his Majesty's Ministers.
felt, that he ought not to allow this question to go to a vote without saying a word in reply to the noble Lords and hon. Gentlemen on the other side of the House. He wished that he could entertain a hope that Ministers had heard enough that evening from the hon. and learned member for Edinburgh, the hon. and learned member for Kirkcudbright, and from the hon. and learned member for Monaghan (who knew a great deal of Ireland), to induce them to suspend their opinions upon this clause till to-morrow. He was not the friend, neither did he pretend to be the friend, of the present Ministers; but he was sure, that their soundest friend would concur 868 with him as to the propriety of the advice which he had just recommended to their adoption. The point on which the Committee was then called upon to decide was this—"Is the Trial by Jury to be abolished at the mere will of the Lord Lieutenant of Ireland?" That was the question to which a Reformed Parliament was called upon to answer yes or no. It was not a light or unimportant question. If they should unfortunately answer the question in the affirmative, what were they going to substitute for it? Not a Court-martial, but some bastard mongrel thing which was called a Court-martial, and in point of fact, was not one. He meant no offence personally to the Gentlemen who were to serve upon it, but he must say, that the country was going to have a packed Court-martial, a rambling tribunal, undefined by principle, unlimited by anything like law, mis-shapen, and ill-begotten. He protested against the establishment of such a tribunal, not only on account of the monstrous thing itself, but also on account of its becoming a precedent. He would not waste the time of the House by declaiming on the merits of Jury Trial, he would only say, that he pitied the man, who, calling himself a lover of freedom, did not estimate highly this mode of trial. It long preceded the title of the King to his throne, and was in existence even before the right of Representation in Parliament existed. In abolishing that mode of trial, let the House consider what power was vested in this mongrel Court-martial. It had no power to try the murderers of Mr. Leonard—no power to try those violent outrages at which good men of ail parties naturally shuddered—no power to try political offences, for that power had very properly been taken from it. Thus, then, there remained nothing for it to try but the middle species of offence. But the erection of these Courts-martial was rendered necessary by the intimidation practised upon Jurymen. The right hon. Secretary, in arguing this question, placed the opponents of the Bill in a curious dilemma. At the last Assizes, the Jurors for the county of Kilkenny did not attend; that was intimidation; at the present Assizes they do attend; and that, said the right hon. Secretary, was intimidation again. Such were the miserable grounds upon which an intelligent people were to be deprived of their dearest rights. He recollected, that upon a former night the 869 right hon. Secretary had produced a great effect, by quoting a letter foretelling that the Jurors would not attend at the present Assizes for Kilkenny. To-night he had endeavoured to induce the Committee to act upon another letter, stating that the Jurors had attended in extraordinary numbers. How, then, were the honest friends of Irish liberty to act, when they found that whether Jurors attended or not, their rights and franchises were to be equally destroyed? Again, it had been stated, that witnesses would not attend, so much were they intimidated. Why, it was now in evidence that they attended willingly, and in crowds. But had witnesses ever been intimidated? On that point the evidence of Mr. Barrington, which he had read, was decisive. Mr. Barrington asserted, that he had never known a case in which a witness was maltreated on account of his having given evidence. It was miserable to have to enter into details and discussions like these—it was miserable that the Trial by Jury should be the stake for which he was playing, and that such wretched counters as these should be set against so valuable and inestimable a prize. But, supposing that witnesses did not attend before the ordinary tribunals of the land, what power had these military tribunals to compel their attendance? It was said, that the Courts of Law were inoperative from want of sufficient evidence. Were these military tribunals then to act with less evidence, or with no evidence at all I But put the case the other way. Witnesses would not come voluntarily forward; but were there no such things as informers—men who trafficked in blood, and who, for a paltry pittance, would sell the lives of their fellow subjects? The evidence of an informer was always suspicious; he was generally an accomplice in the offences with which he charged others. The evidence of an accomplice required corroboration; and what was evidence in corroboration was a difficult point even for the venerable Judges of the land to determine; and yet all this was to be settled without discussion by those military Judges. The right hon. Secretary had not shown a particle of necessity for this measure. In his speech, that evening he had gone so far as to say, that he hoped, that if this Bill were passed, the Executive Government would not have occasion to use it. That was a distinct admission, that there was no necessity 870 for the Bill, and therefore the House ought not to give to the Lord Lieutenant the power of deciding at his will and pleasure whether the Trial by Jury should be abolished in Ireland. Then the right hon. Secretary, having given, up the ground of necessity, called upon the House, from its confidence in Ministers, to grant them those extraordinary powers. Now, ought they to give up their liberties to the keeping of any man, out of confidence either in him or in his colleagues? The right hon. Gentleman could not ask this Bill of them as a right, when he called upon them to give it him in confidence. He could not demand it from them as a debt, so he now came forward and solicited for it as charity. Give it him in charity—bestow it upon him as an eleemosynary contribution. They would do so, if they were prepared in confidence to abolish the Trial by Jury, and to abolish it for a mongrel species of ambulatory Court-martial, docked above and cut away below, which was neither fish nor flesh nor good red-herring.
§ Lord Ingestre
had supported this Bill upon its first introduction, but he was now inclined to oppose it, because this clause had been so altered as to be rendered ineffective.
, in reply to the noble Lord's reason for withdrawing his support from this Bill, would only state, that this clause was, with the exception of two words, which did not in the slightest degree affect its import, in precisely the same shape in which it was originally introduced into the House.
§ Colonel Perceval
was almost inclined to vote against this clause, since the mode in which the constitution of the Courts-martial had been altered by requiring five of its members to be unanimous, would render it difficult for the Government to render any effectual protection to the inhabitants of Ireland.
§ Lord Sandon
did not think that the change made in this clause was sufficient to warrant an alteration of sentiment in those hon. Members who had originally given their support to this Bill. He was surprised that it should be considered a matter of difficulty to get five or seven officers to be unanimous in a verdict when they continually saw twelve Jurymen agreeing in their opinion. With respect to the other objection—that political offences were no longer to be tried by Courts-martial, he highly approved of the 871 change; because he did not think military men likely to be good Judges in cases of sedition or treason, although he believed them perfectly competent to try common offences. He thought there was a clear distinction between political and other offences; and it appeared to him the Committee would take upon itself an awful responsibility, if it refused to arm Ministers with the power conveyed by this clause. He felt confident, that the powers intrusted to Government, by the Bill, would not be abused; and his confidence was founded, not on the personal character of Ministers, but on a Reformed House of Commons, emanating directly from the people, which would always be able to control the Government.
§ The Committee divided on the Clause: Ayes 270; Noes 130—Majority 140.
§ Clause to stand part of the Bill.
§ The eleventh Clause read.
§ Mr. Rigby Wason
moved an Amendment, requiring unanimity from all the members of the Courts-martial. It was as follows, "Provided always that no person shall be convicted under this Act, or any sentence passed on any person who shall be so convicted, unless the officers composing such Court-martial, shall unanimously agree in their verdict, and shall afterwards unanimously approve of the sentence awarded by the court for such offence."
§ Lord Althorp
opposed the Amendment. The Ministers had already made great concessions in this clause. They had consented that there should be a majority of seven out of nine, of five out of seven; and that in all cases where the members of the court were limited to five, then that the five should be unanimous.
§ The Committee divided on the Amendment: Ayes 42; Noes 146—Majority against the Amendment 104.
§ Mr. Rotch
said, that it was the practice of Courts-martial, when the prisoner made any objection, to clear the Court, whilst the Judge Advocate had the privilege of replying to the objection in secret, and in the absence of the prisoner and his advisers. He thought, that should be guarded against, and he would move this proviso, "Provided, always, that no legal objection or other objection to the proceedings of the Court-martial shall be gone into, in the absence of the party accused, and his legal adviser." That would prevent any such practice under this Act.
§ Amendment negatived without a division.
§ Mr. Warburton
moved an Amendment, "That no verdict of acquittal should be revised by the same or any other Court-martial; and that no sentence of condemnation should be increased in severity by the Lord Lieutenant or any other person"—The first part of which was agreed to, the latter negatived.
§ The Clause with verbal Amendments to stand part of the Bill.
§ House resumed; Committee to sit again.
|List of the AYES, on the first Division.|
|Althorp, Viscount||Crawley, S.|
|Anson, Sir G.||Davenport, J.|
|Anson, hon. G.||Davies, Lieut.-Col.|
|Astley, Sir J.||Denison, W. J.|
|Atherley, A.||Denison, I. E.|
|Baring, F. T.||Dilwyn, L. W.|
|Baring, F.||Donkin, Sir R. S.|
|Barnett, C. J.||Duncannon, Viscount|
|Barnard, E. E.||Dundas, Capt. J. W.|
|Beaumont, T. H.||Dundas, hn. Sir R. L.|
|Benett, J.||Dundas, hon. J. C.|
|Bentinck, Ld. G. F. C.||Eastnor, Viscount|
|Berkeley, Capt. M. H.||Ebrington, Visct.|
|Berkeley, hon. C. F.||Ellice, E.|
|Bethell, R.||Etwall, R.|
|Biddulph, R. M.||Evans, W.|
|Blackstone, W. S.||Fazakerley, J. N.|
|Boss, J. G.||Fellowes, H. A. W.|
|Bowes, T.||Fellowes, hon. N.|
|Brocklehurst, J.||Ferguson, Gen. Sir R.|
|Brodie, Captain||Finch, G.|
|Brougham, W.||Fitzroy, Lord J.|
|Brougham, J.||Folkes, Sir W.|
|Buller, J. W.||Forster, C. S.|
|Buller, E.||Fort, J.|
|Bulteel, J. C.||Fox, S. L.|
|Burdett, Sir F.||Frankland, Sir R.|
|Burton, H.||Gaskell, J. M.|
|Buxton, T. F.||Gisborne, T.|
|Byng, G.||Gladstone, W. E.|
|Byng, Sir J.||Gordon, R.|
|Calvert, N.||Gore, M.|
|Campbell, Sir J.||Goring, H. D.|
|Carter, J. B.||Graham, Sir J. R. G.|
|Cavendish, Lord||Grant, right hon. R.|
|Cavendish, Col. H. F.||Greene, T. G.|
|Cayley, Sir G. B.||Grey, hon. Col.|
|Cayley, E. S.||Grey, Sir G.|
|Chaytor, Sir W.||Gronow, Capt. R. H.|
|Chetwynd, Capt. W. F.||Grosvenor, Lord R.|
|Chichester, J. P. B.||Halford, H.|
|Childers, J. W.||Handley, W. F.|
|Clive, E. B.||Handley, H.|
|Clive, Viscount||Harcourt, G. V.|
|Clive, hon. R. H.||Harland, Wm. C.|
|Cockerell, Sir C.||Hawes, B.|
|Codrington, Sir E.||Heathcote, John|
|Collier, J.||Heathcote, G. J.|
|Cookes, T. H.||Heron, Sir R.,|
|Hill, Sir R.||Rickford, W.|
|Hobhouse, Sir J. C.||Ridley, Sir M. W.|
|Hodges, T. L.||Robarts, A. W.|
|Hodgson, J.||Rolfe, R. M.|
|Hornby, Edmund G.||Rotch, B.|
|Horne, Sir Wm.||Russell, Lord J.|
|Hoskins, K.||Russell, C.|
|Howard, hon. F. G.||Ryle, J.|
|Howard, P. H.||Sandon, Viscount|
|Howick, Viscount||Sandford, E. A.|
|Ingham, R.||Scott, Sir E. D.|
|Inglis, Sir R. H.||Scott, J. W.|
|Jermyn, Earl of||Seale, Colonel|
|Jerningham, hon. H.||Sebright, Sir J.|
|Johnstone, Sir I. V.||Shawe, E. R. N.|
|Keppell, Major G.||Sheppard, T.|
|Kerry, Earl||Smith, J. A.|
|Labouchere, H.||Smith, hon. R. S.|
|Lamont, N.||Smith, R. V.|
|Langsten, J. H.||Spencer, hon. Cap. F.|
|Lefevre, Charles S.||Stanley, rt. hon. E. G.|
|Lemon, Sir C.||Stanley, E. J.|
|Lennard, Sir T. B.||Staunton, Sir G. T.|
|Lennox, Lord G.||Staveley, T. K.|
|Lennox, Lord A.||Stewart, P. M.|
|Lumley, Viscount||Strickland, G.|
|Lushington, Dr. S.||Stuart, Lord D. C.|
|Maberley, Col. W. L.||Talbol, C. R. M.|
|Macaulay, T. B.||Talbot, W. H. F.|
|Madocks, J.||Thicknesse, R.|
|Mahon, Viscount||Thomson, right hon. C. P.|
|Marryat, J.||Throckmorton, R. G.|
|Marshall, J.||Townley, R. G.|
|Marsland, T.||Tracy, C. H.|
|Martin, J.||Trevor, hon. G. R.|
|Mildmay, P. St. John||Troubridge, Sir E. T.|
|Milton, Viscount||Vernon, hon. G. J.|
|Molyneux, Lord||Vernon, G. H.|
|Moreton, hon. A. H.||Vincent, Sir F.|
|Morpeth, Viscount||Vivian, J. H.|
|Mosley, Sir O.||Walker, R.|
|Mostyn, hon. E. M. L.||Ward, H. G.|
|Nicholl, J.||Warre, J. A.|
|Ord, Wm. H.||Waterpark, Lord|
|Paget, F.||Watkins, J. L.|
|Palmer, R.||Watson, hon. R.|
|Palmerston, Viscount||Wedgwood, J.|
|Parker, J.||Whitbread, W. H.|
|Parker, Sir H.||Whitmore, W. W.|
|Patten, J. W.||Whitmore, T. C.|
|Pelham, hon. C. A. W.||Williams, W. A.|
|Pendarves, E. W.||Willoughby, Sir H.|
|Pepys, C. C.||Winnington, Sir T.|
|Peter, W.||Wood, G. W.|
|Petre, hon. Edward||Wood, C.|
|Phillips, Sir George||Wrottesley, Sir J.|
|Phillpotts, J.||Wynn, rt. hon. C. W.|
|Pinney, W.||Young, G. F.|
|Ponsonby, hon. W.||SCOTLAND.|
|Potter, R.||Adam, Admiral C.|
|Poulter, J. S.||Baillie, Colonel J.|
|Price, Sir R.||Bannerman, A.|
|Pryme, G.||Callender, J. H.|
|Pugh, D.||Dalmeny, Lord|
|Ricardo, D.||Dalrymple, Sir J. H.|
|Rice, hon. T. S.||Elliot, hon. Captain|
|Ferguson, R.||Acheson, Viscount|
|Fleming, Admiral||Belfast, Earl of|
|Grant, right hon. C.||Browne, J. D.|
|Halliburton, hon. D.||Browne, D.|
|Hay, Colonel L.||Christmas, J. N.|
|Jeffrey, right hon. F.||Coote, Sir C. H.|
|Johnstone, A.||Ferguson, Sir R. A.|
|Johnstone, J. J. H.||Fitzgibbon, hon. R.|
|Kennedy, T. F.||Gladstone, T.|
|Macleod, R.||Hill, Lord A.|
|Maxwell, Sir J.||Hill, Lord M.|
|Maxwell, J.||Howard, R.|
|Murray, J. A.||Knox, hon. Col. J.|
|Oliphant, L.||Lamb, hon. G.|
|Ormelie, Earl of||Maxwell, J. W.|
|Ross, H.||O'Grady, hon. Col.|
|Steuart, R.||O'Neil, hon. Gen. J.|
|Stewart, Sir M. S.||Shaw, F.|
|Wemyss, Captain J.|
|List of the NOES.|
|ENGLAND.||Langton, Colonel G.|
|Aglionby, Henry A.||Lester, E.|
|Attwood, T.||Mills, J.|
|Bainbridge, E. T.||Molesworth, Sir W.|
|Baring, H. B.||Palmer, General|
|Bayntun, S. A.||Parrott, J.|
|Beauclerk, Major A.||Philips, M.|
|Bish, T.||Rider, T.|
|Blandford, Marquess||Rippon, G.|
|Bowes, J.||Roebuck, J. A.|
|Briggs, R.||Romilly, J.|
|Buckingham, J. S.||Romilly, E.|
|Bulwer, E. L.||Scholefield, J.|
|Chandos, Marquess of||Scott, J. W.|
|Clay, W.||Stewart, J.|
|Curteis, H. B.||Strutt, E.|
|Curteis, Captain E. B.||Tayleure, W.|
|Darlington, Earl of||Tennyson, rt. hon. C.|
|Dawson, E. S.||Todd, R.|
|Divett, E.||Torrens, Colonel|
|Duncombe, hon. W.||Turner, W.|
|Ellis, J.||Tynte, C. J. K.|
|Ewart, Wm.||Warburton, H.|
|Faithfull, G.||Wason, R.|
|Fielden, J.||Wigney, J. N.|
|Forester, hon. C. W.||Wilbraham, G.|
|Gaskell, D.||Wilks, J.|
|Grote, G.||Windham, W. H.|
|Guest, J. J.||Wood, Alderman|
|Guise, Sir B.||Yelverton, hon. W. H.|
|Hall, B.||Abercromby, rt. hn. J.|
|Handley, B.||Dunlop, Captain J.|
|Hanmer, Sir J.||Ewing, J.|
|Hanmer, Colonel H.||Fergusson, R. C.|
|Hawkins, J. H.||Gillon, Wm. D.|
|Hotham, Lord||Kinloch, G.|
|Hudson, T.||Oswald, R. A.|
|Hume, J.||Oswald, J.|
|Humphery, J.||Sharpe, General M.|
|Hutt, W.||Sinclair, G.|
|Ingestre, Viscount||Wallace, R.|
|Kemp, T. R.||Baldwin, H.|
|King, E. B.||Barron, W.|
|Barry, G. S.||O'Brien, Colonel|
|Bellew, R. M.||O'Callaghan, C.|
|Butler, hon. P.||O'Connell, D.|
|Chapman, M. L.||O'Connell, M.|
|Clements, Viscount||O'Connell, C.|
|Daunt, W. O. N.||O'Connell, J.|
|Dobbin, L.||O'Connell, Morgan|
|Evans, G.||O'Connor, Don|
|Finn, W. F.||O'Connor, F.|
|Fitzgerald, T.||O'Dwyer, A. C.|
|Fitzsimon, C.||O'Ferrall, R. M.|
|Fitzsimon, N.||Perrin, L.|
|Galwey, J. M.||Roche, W.|
|Grattan, J.||Roche, D.|
|Grattan, H.||Ruthven, E. S.|
|Lambert, H.||Ruthven, E.|
|Lynch, A. H.||Sullivan, R.|
|Maclaughlin, M.||Talbot, J.|
|Macnamara, Major||Talbot, J. H.|
|Martin, J.||Vigors, N. A.|
|Martin, J.||Walker, C. A.|
|Mullins, F. W.||TELLER.|
|Nagle, Sir F.||Shell, R. L.|
§ Paired off.
§ Lennox, Lord W.