§ Sir Edward Knatchbullhaving; moved, "That the Resolution adopted by the House on the 13th of February be read, relative to Baron Smith," and it having been read, the hon. Baronet proceeded to say, that he was well persuaded, that the House would feel it would be infinitely the more agreeable course, as he apprehended it undoubtedly would be the more convenient 696 one, if it were possible, at that hour of the night, to postpone the discussion of a question which he deemed it his bounden duty to submit to the anxious and solemn consideration of the House. He was fully aware of the disadvantages under which he rose to claim the attention of the House, engaged as it had been for so many hours in the discussion of a question of the highest magnitude, and delighted as it had been by such brilliant displays of eloquence, which must render anything that he had to address to it but little calculated to arrest its attention. With all these disadvantages, however, against him, he felt it his duty, even at that late hour of the night, to bring this question under the consideration of the House. Though he felt that it was his duty to proceed with the task he had undertaken, he must, at the same time, confess, that he was fully sensible of the extreme difficulty, and, perhaps, delicacy, of the position in which he stood at the present moment. He was about to do that, which was, though very unusual, not without precedent. He was about to call upon the House to consider the propriety of rescinding a vote to which they had come on a former evening; and he could assure them he would not have presumed to take such a course if he were not fully impressed with the great importance—if he had not felt that he had strong and reasonable grounds for bringing forward the proposition which he should submit to their consideration. When he recalled to the House the serious charges which the hon. and learned member for Dublin had brought against Baron Smith—when he brought to their recollection the strong sensation which the announcement of these charges had produced upon the House—when he reminded them of the intense feeling that was entertained upon the subject out of doors—and when they considered the very peculiar circumstances under which the vote was come to, he was persuaded that he should stand, not only acquitted, but justified, for the line of conduct he proposed to adopt. In the course of the previous discussion which had taken place on this subject, the right hon. the Secretary for the Colonies said, that he was induced to take a part in it rather in consequence of the mode and manner in which the debate was carried on, than from any importance which he attached to the statement made by the hon. and. 697 learned member for Dublin. He was ready to believe that the former discussion did take an unusual course; but why it did do so he was unable to say. The debate certainly was tinged with party spirit; and that, he was willing to admit, might have induced the right hon. Secretary and other hon. Members to vote as they had done. He begged however to assure them, that he alone was responsible for the Motion which he was about to bring forward, and he hoped, indeed he was confident, they would give him credit when he declared, that he did not bring it forward as a party question. He was incapable, on such a momentous question, of being influenced by any such motives and the ground on which alone he submitted the Motion with which he meant to conclude, was the dangerous effect which such a vote was likely to have upon the independence of the Judges of the land, and the difficulties to which it would expose them. Among other consequences he felt the great injustice that would be done to the eminent and learned individual implicated by it if such a vote as this were allowed to remain unchallenged. That able and excellent gentleman had now for up-wards of thirty years presided on the Bench, and never to his knowledge, never according to the information which he had obtained, had taint or suspicion before assailed his conduct. The public character of all men was of the first importance to them, and to none was public character of greater value than to persons on whom depended the administration of justice. The public character of no man, of no Judge, was ever more appreciated than that of the eminent and learned individual upon whom this vote cast so unmerited a reflection. Such a vote he must say, never ought to have passed that House; but as he wished to avoid any expression that would lead to angry discussion, he would abstain from saying more lest he should fall into the very error which he desired to guard against. He could not, however, help expressing the regret which he felt at the expressions in which the hon. and learned member for Dublin indulged at the expense of the learned Judge. He was quite at liberty, he believed, to refer to what had occurred on the former occasion, and if he merely confined himself to what had fallen from the hon. and learned member for Dublin, the House must feel convinced that he had abundant 698 materials for even acrimonious observation. He would not, however, cast blame on either the hon. and learned member for Dublin, or any one else; that was not his object. His purpose was to move the House from the false position in which it was placed by the vote of the other night, and by having the question reconsidered to secure their own independence. When the subject was first brought forward, the hon. and learned member for Dublin made an observation which was not un-frequently advanced by him both in and out of that House. He said, that it was altogether an Irish question, and that, therefore, they would, he doubted not, treat it lightly, as they were in the habit of doing all questions relating to that country. He did not understand why the hon. and learned Member made use of an observation so unfounded. But the hon. and learned Member proclaimed on all occasions, that the interests of Ireland were altogether neglected by the British Parliament. He denied that the assertion was borne out by fact; and he proclaimed, not only for himself, but also on the part of every other hon. Member of that House, and he spoke only the truth, that on no occasion within his recollection, had he, or had the Parliament of this country, neglected the interests of Ireland. It had ever been his desire and most anxious care to pay the utmost consideration to any measure that was brought forward for the advantage of that country; and he would boldly affirm, that the hon. and learned Member for Dublin was not more solicitous about its welfare than he was. Whether the questions brought forward related to the interests of Ireland, or to the interests of England, his course had been, and always should be, to do justice, as far as he was able, to both countries. He would at all times pay the same dispassionate attention to all questions, whether they were English or Irish; and he thought the hon. and learned member for Dublin had no right to charge either him or the other hon. Members of that House, with being negligent of the interests of Ireland. He was ready to admit, that no man should ask the House to retrace its steps who was not prepared to show sufficient grounds for the adoption of such a course. He was also bound to show, that in bringing forward a proposition like this he could not be suspected of being actuated by party motives. He dis- 699 claimed any thing of the kind, and repeated, that he was influenced by no motive so unworthy; and in proof of this, he would take the liberty of stating the case as it stood, without recurring to any circumstances that was likely in any way to give rise to angry discussion. It should not be forgotten that this distinguished individual, whose public character was so wantonly assailed, was a person who had occupied an important place on the bench for the last thirty years, and against whom not even the shadow of imputation had been cast, from the period of his elevation to the judicial seat, down to the moment when those charges were brought forward by the hon. and learned member for Dublin. He must first remark, that it was not usual for the conduct of a Judge to be inquired into by a Committee of that House. The case of Lord Macclesfield was, he believed, the only exception of the kind that had occurred from the period of the Revolution to the present time; and he must say, that he, for one, did not approve of such Parliamentary investigations. He was aware that there were two other cases in which the conduct of two Irish Judges was complained of. He alluded to the cases of Mr. Justice Fox and Mr. Justice Johnson; but neither of those cases had led to a Parliamentary inquiry. Between these two cases, however, and the present, there was not a single feature of similarity. The conduct imputed to the two Judges he had named, and that which the hon. and learned member for Dublin had attributed to Baron Smith, were widely different. In no point of view could the hon. and learned member for Dublin be justified in the use of such terms as those which he had employed in bringing forward this accusation against a Judge, who was alike distinguished for his honour and his learning, and the great liberality of his political sentiments. The hon. and learned member for Dublin had made two charges against Mr. Baron Smith. In the first he stated, that the learned Judge had been guilty of neglect of his judicial duties, and in the next he alleged, that the same learned personage was a violent political partisan. With respect to the first accusation, that of neglect of duty, he entreated the House to pause for a moment, and consider of what that charge consisted. The hon. and learned member for Dublin had asserted, that Mr. 700 Baron Smith was constantly in the habit of going into Court at a late hour in the day, to the great inconvenience and injury of suitors. The practice of which the hon. and learned Member had complained was perhaps inconvenient, and might not be regarded with much favour in this country; but then it was important to know, however objectionable, that it was a practice which generally prevailed among the Judges in Ireland. Undoubtedly such a practice did not sound satisfactory in British ears; but if the same thing happened in the case of other Irish Judges, he could not understand why the hon. and learned Member should have selected Baron Smith, as the object against which to direct his thunders. The charge, it was apparent, was general rather than specific, and, consequently, there was the greater difficulty in answering it. The hon. and learned Member had only told them of two instances of neglect, and one of those was the Liverpool case. But had the hon. and learned member for Dublin ventured to tell them that he had, even in his capacity of counsel, made any representation to the learned Judge, with respect to his alleged neglect of duty? He had not; but if the hon. and learned Member had known of such misconduct as he attributed to Baron Smith, was it not his bounden duty to have made a representation to him upon the subject? If the hon. and learned Member had taken this course, and his representation was not attended to, unquestionably he would have good grounds for complaint, but not before. Another instance of the dereliction of duty attributed to the learned Judge by the hon. and learned Member, related to a bankruptcy case.
Mr. O'Connellsaid, that he had not attributed the dereliction of duty in the case alluded to to Mr. Baron Smith, but to another Judge.
§ Sir Edward Knatchbull; What! did the hon. and learned Member mean to deny that he attributed the neglect in the bankruptcy case of which he had complained to Baron Smith? The hon. and learned Member had stated, that he was in Court when a certain trial had taken place, and that he had made observations to the Jury, to show that the Judge was unfit to be on the bench—so unfit, that the hon. and learned Member told the Jury, that if the Judge interfered at all 701 it would only be to stop the administration of justice, and now the hon. and learned Member told them, that he alluded to some other Judge.
Mr. O'Connellrepeated, that he had not and could not have alluded to Mr. Baron Smith, for he had said, that the Judge who had been guilty of the conduct which he had described, had remained on the bench for two years afterwards.
§ Sir Edward Knatchbullcertainly it was his impression at the time, and he believed many other Gentlemen supposed as he did, that Baron Smith was the Judge to whom the hon. and learned member for Dublin referred, as having been guilty of laches. In this he knew the testimony of many hon. Gentlemen would bear him out. It now appeared, however, that that case did not refer to Baron Smith. But that admission was in itself a powerful argument in proof of the injustice of the line of proceeding that had been adopted towards that learned Judge. The learned Gentleman brought a charge against Baron Smith, and, in doing so, he referred to a case of neglect of duty on the part of another Judge in Ireland, far greater than any imputed to the learned Baron; and yet no complaint had ever been made to Parliament of the conduct of that Judge. He did not want to know his name—he supposed, indeed, that the case was in reality one that did not call for investigation; and he only referred to it to show what a peculiar measure of injustice had been visited on the head of Baron Smith. He recollected that, in the outset of his speech, the hon. and learned Gentleman had said, that the charge which he was about to prefer against Baron Smith, was generally applicable to the Judges in Ireland. How did it happen, then, that Baron Smith should be selected as the first victim for the hon. and learned Gentleman's vengeance? How did it happen that the hon. and learned Gentleman, who had himself so often sounded the praises of that learned Judge, who had so often spoken in the highest terms of approbation of his impartial and excellent conduct, should thus turn round upon him, and in his old age, endeavour to excite the public odium against him? If there was any point in the character of that learned Judge that stood out more distinguished than the rest, it was this, that he always supported those he imagined to be op- 702 pressed, and he always opposed those who he supposed were their oppressors. When the hon. and learned Gentleman was, with the rest of his Catholic countrymen, in the opinion of Baron Smith, suffering under oppression then Baron Smith was the advocate, the able advocate of Catholic Emancipation. But now that matters were changed, and that that hon. and learned Gentleman, instead of being in the situation of an oppressed man, was, in the opinion of many, exercising oppression over others, Baron Smith, true to the enlightened and noble principles which had always influenced his conduct, was to be found opposed to him. He must say, that never had a charge of misconduct against a Judge been brought forward or sustained upon evidence more lame and insufficient. The right hon. Gentleman, the Secretary for the Colonies, had said, in the former debate on this question, that the charge against Mr. Baron Smith, for his conduct at Armagh, had not been answered. But surely the right hon. Secretary must have long since perceived, that, as far as regarded Baron Smith, the evidence had entirely failed. The whole of the imputation of neglect of duty rested on the conduct attributed to the learned Judge at the Assizes of Armagh; but what was the testimony which the hon. and gallant member for Armagh had borne on this subject? Why, he had told the House—and he made the assertion upon his own responsibility, upon his own honour as a; Member of Parliament—that, in no one; case which had come before the learned Judge, had injury been inflicted upon any party, nor had the due course of the administration of justice been in the least impeded. Here was a triumphant answer to so much of the hon. and learned member for Dublin's charge. It short, it must be evident to every Member of that House, that the first charge was destitute of any foundation. But why, it might be asked, had it been brought forward? He would state why. It was impossible to conceal the fact, that it had been brought forward in order to prop up the second charge. No one could doubt this. It was not heard of till after the charge delivered at Dublin. It was that charge which constituted the real offence; and this would be manifest when he stated that, until Baron Smith delivered his charge to the Grand Jury in Dublin, no 703 complaint whatever had been urged against I him by the hon. and learned Member in reference to his conduct at Armagh. He would defy the hon. and learned Member to deny this assertion. If, then, the charge which the learned Judge delivered to the Grand Jury in Dublin in October last had never been uttered, it was perfectly clear that the charge relative to his neglect of duty would never have been heard of. He certainly was not an advocate for Judges making political charges, because he thought that political charges might lead unconsciously to something like political bias on the part of a Judge. Than this nothing could be worse or more injurious to the pure administration of justice, and, therefore, he disapproved of it. Although such was the opinion which he entertained, he must, at the same time, admit, that cases might occur in which it would be the imperative duty of the Judge to speak on political subjects. This was a proposition which he did not think the right hon. Secretary for the Colonies would deny; and if, therefore, a Judge was justified in blending politics with law in the discharge of his judicial functions, it would be a difficult matter to say where his discretion should begin, and where it should end, for no man, however accurate, could settle such a point. There were, however, many instances where Judges delivered political charges, and adverted to the state of the country; and he need hardly remind the House, that Baron Smith made a charge of this description about two years ago, which was not only lauded by the right hon. Secretary himself, but received the approbation of the public generally. The practice of delivering political charges had long existed both in this country and in Ireland; and he should be glad to know whether it would be wise or expedient to render Judges criminally amenable to that House, for every slight political error into which they might fall, in consequence of their endeavour to perform a duty which justice, expediency, and policy alike called upon them to discharge. In the course Baron Smith had pursued, he had only followed in the footsteps of his predecessors. He could refer to an instance in which another Judge, of high character, had pursued the same practice, but without having been censured for it. A charge of a political nature was delivered by Mr. Justice Day 704 in the year 1811, when the public tranquillity in Ireland was disturbed by the agitation of the Catholic Question; but at that period nobody was to be found who would come forward to say that Parliament should interfere and procure a censure upon him. When charging the Grand Jury in the year 1811, the language of Mr. Justice Day was this:—'This happy state of the country is perhaps the more gratifying when we reflect upon the activity of incendiaries to inflame and corrupt the public mind. At no former period have orators, scribblers, and printers circulated with more busy industry their maddening poisons through the land. These mischievous advocates of civil and religious freedom, as they call themselves, have engaged in their service a number of the prints of this city, and those prints, instead of sustaining the character of the Irish Press by liberal, fair, and candid discussions, have lent themselves to sedition'. At the period this charge was delivered, there were several prisoners for trial for political offences; and if it was not wrong in Mr. Justice Day to deliver such sentiments as these from the bench, surely it could be no crime in Baron Smith to speak as he had done, though there was not a single person charged with a political offence to come before him, and when the tranquillity of the country was endangered by the agitation that was going forward. As Mr. Baron Smith spoke of the promoters of the question of the Repeal of the Union so Mr. Justice Day spoke of the advocates of Catholic Emancipation. That learned Judge went on to say, in the charge to which he referred, that 'The professed object of all this is Roman Catholic equalization, figuratively called Catholic emancipation; but do these libellers fancy that a measure the most momentous, pregnant with the most serious consequences to the whole empire, is to be carried by storm?' Observing, moreover, that, For myself I uniformly and earnestly supported every retaxation of the Popery Laws; but, in The hottest moments of my zeal for that measure, I always presumed to think that there was an object of still more value to the State than even Catholic emancipation, and that is, the public peace. The public peace must not be resigned by its best avengers, the Grand 705 Juries and Petty Juries of the country, to factious and turbulent men'. Here was a case in which another Judge, eminent for his integrity and learning, pursued the identical course which Baron Smith took. But this was not the only case that might be mentioned. He would, therefore, ask the House, if, because one learned Judge had followed the course adopted by all other Judges, he was on that account to be dragged before a Committee of the House of Commons to have his conduct investigated. But he should like to know, if even a Committee were appointed, how they were to proceed, or whether, in short, they could proceed at all, in such an inquiry. It might be a question, whether the Act of the 1st of George 3rd, the only law that had any application to Judges, could be ever enforced in such a case as this. There was clearly no ground for addressing the Crown to have Mr. Baron Smith removed from the Bench; and, therefore, the utmost a Committee of that House could do, would be to make a Report, which would amount to something in the shape of a censure for a little indiscretion on the part of the Judge. But would it be right thus to assail the guardians of the liberty, the property, and the lives of the King's subjects with censure, and to leave them upon the Bench with such a stigma affixed to their character? The consequences of such a step would be most injurious; and he, therefore, hoped the hon. and learned member for Dublin would be baffled in his object, and that a high-minded and eminent Judge should not be exposed to censure because his political opinions did not please that hon. and learned Member. Having had time to consider this subject attentively, he took upon himself to say, that the House could not persist in the mistaken course upon which it had entered without great detriment to the pure and independent administration of justice. He implored the right hon. Secretary for Ireland to reconsider his former opinion, to examine it apart from all personal or party considerations, and to be influenced in his decision solely by the intrinsic merits of the case. It was not alone the principle of the Motion that had been carried, of which he had to complain, but also of the most extraordinary conduct of the hon. and learned Gentleman who had brought it forward, and of the members of the Government who had 706 supported him. They had suffered the learned and respected Judge to remain in ignorance of the charges that were to be brought against him. Nay, more, he was led to believe, up to the very hour at which the Motion was to be decided, that the Government would oppose the attack that was to be made upon him. He disclaimed all party feelings, all party considerations; and he hoped the House would do him the justice to observe, that nothing irritating or extraneous had fallen from his lips in the course of the observations which he had made. He could not, however, injustice to himself, in justice to the independence of the bench, and in protection of the fair administration of justice, avoid coming forward to protect the independence of the judgment-seat; that independence was, he thought, secured by the Act of George 3rd. Unto that Act he appealed for the protection of the Judges. It was in behalf of their independence that he appealed to the House. He appealed to Parliament to protect the Judges from all intimidation, to secure them in the exercise of their unbiassed opinions. This was the main point upon which he pressed his Motion; and if he had not felt that the vote of the other evening was both unwise and unconstitutional, he would not have brought forward the present Motion. He acknowledged, that he felt strongly upon this matter, because he considered the principle involved in this discussion one of the most important which had come under his notice since he had taken any part in public business. Parliament, like all other bodies, was liable to commit mistakes; but it was true wisdom rather to acknowledge the error than in the least to endanger any of the institutions of the country. On this occasion there was every reason for correcting the error which had been committed. Let the House only remember, that the Motion was carried at the suggestion of an hon. and learned Gentleman who had left nothing that was venerable, nothing that was sacred, nothing that was ancient or respectable, in our institutions unassailed. He would not dwell on that topic further than to remind the House of the suggestion that had been made that very evening by the same hon. and learned Gentleman,—a suggestion at which the whole feelings of the House revolted, and to which it was unnecessary for him further to allude after the expo- 707 sure made of it by his right hon. friend. He wished, however, he could awake the Government, and the House, to a true sense of the situation in which they stood with regard to that hon. and learned Gentleman. His powers were well known to the Government and to himself, and were often but too well exercised for the particular purposes to which they were applied. Whatever these powers might be, be would venture to say, that the policy pursued that night by the hon. and learned Gentleman, would do more injury to his character in this country than any act of his life. In saying this, he did not mean to accuse the hon. Gentleman of entertaining any feelings of evil; all he meant to say was, that the policy chosen by him on this occasion was the worst he could select to recommend himself to the people of this country. It was peculiarly incumbent on that House to look carefully and dispassionately at this question; to weigh all its accompanying circumstances, and to consider, apart from all personal considerations, whether there was not, as he firmly believed there was, a question involved in this debate beyond, and of higher importance than that which they would be verbally called upon to decide. The great paramount object with all was the pure, the independent, administration of justice. That was the great bond of society; it was the link that bound the Government to the people, and gave stability to the other institutions of the country. The hon. Baronet concluded by moving, "That the order for appointing a Committee to inquire into the conduct of Mr. Baron Smith be discharged."
§ Mr. Robinsonseconded the Motion. The course proposed by the hon. Baronet was the only one which the House could adopt consistently with its own dignity, and with the respect due to the Bench.
Mr. Secretary Stanleycould not, as he had been so directly alluded to, avoid saying a very few words; and he should do so without partaking in any degree of heat or excitement. In some of the concluding remarks of the hon. Baronet he fully agreed; and it was impossible for him to dissent from the proposition, that it was essential to the best interests of the country, to secure not only the independence of the Judges, but the most perfect purity and propriety in the administration of justice. In looking, then, at a subject of this magnitude, the House, he was sure. 708 would, while it abstained on the one hand from indulging false delicacy in correcting abuses, it would, on the other hand, refrain from all unnecessary interference with the independence of the Bench. The House was bound, at the same time that it secured that independence, to guard against abuses; and he, for one, did not partake of the fears expressed by the hon. Baronet, who dreaded the most fatal consequences from exposing the conduct of Judges to the observation and caprice of popular assemblies. It seemed to him, that the hon. Baronet had mistaken the position in which this question was placed, and it was, therefore, necessary for him (Mr. Stanley) to remind the House how far they had proceeded. Charges of a two-fold nature had been brought forward against a learned Judge, and the House had barely asserted that these allegations were of a nature that ought to be inquired into. The House had proceeded no further, and, in his opinion, whether in reference to the character of the venerable Judge, or in reference to the practice of the House on such occasions, he thought there were sufficient grounds for hearing more fully the whole particulars of those charges. In saying this, he wished to avoid the expression of any opinion; but this he must say, that when this Committee would be appointed, it would be the business and the duty of the hon. and learned Member to bring forward his charges before that Committee. It would be his business to bring forward distinct and specific charges. The hon. Baronet had appealed to him, whether he would like himself to be called upon to make his defence upon such charges, and whether he would not consider such a call as tantamount to a censure. To that he would, at once, answer, that so far from deprecating inquiry on such an occasion, he would implore to be heard, and would prefer any investigation to that half sort of censure which was implied in refusing to meet such accusations. That was the course he should pursue; that was the course, he believed, every honourable and high-minded man would pursue; that was the course which he was sure would be sought by Baron Smith. That honourable, that high and proud-minded man, was of all others the most likely to seek inquiry. His proud mind revolted at any imputation, and, feeling deeply sensible, as he did, of any 709 stain attempted to be cast upon his character, he would be the more anxious for an opportunity to wipe it away for ever. He (Mr. Secretary Stanley) cast no such stain upon the learned Judge's character. He insinuated no imputation upon his integrity. On the contrary, he believed, as he was bound to believe, that that learned person was actuated by the most conscientious motives; but still he might have deviated from what must be considered the strict line of his duty. That, however, was a proper question for the Committee—a Committee which ought to be selected in such a way as to place its decision above all suspicion. It was before such a Committee that the venerable and learned Judge would most probably desire to make such statements of his conduct as would procure a Report that would exonerate him from all blame. The hon. Baronet who had brought forward the present Motion had complained, that he (Mr. Stanley) had taken an over active part in the debate on this question the other evening, and that he had, by doing so, considerably influenced the House in its vote of the other evening. It was not to produce such an effect that he had spoken early, but it was because he considered he had a great public duty to discharge. He did not mean to dwell on the charge brought against Baron Smith on account of what had occurred at Armagh; but he would beg the House to recollect that the very same charge was brought forward last Session of Parliament by the hon. member for Mona-ghan, and that the opinion of the House was then asked on the matter. With respect to the other accusation now first made, namely, that the learned Baron had introduced certain political topics into a charge to the Grand Jury delivered by him at the last Dublin Assizes, he must confess, that some very weak arguments were brought forward to justify him. He really could not see how it was possible to vindicate Baron Smith, by adducing the practice and example of other Irish Judges; nor did he think that the case of the charge delivered by Judge Day, in 1811, was at all in point. There was a wide distinction to be drawn between a Judge travelling out of his way in his charge to a Jury and a Judge who, in his charge, confined his remarks and allusions to the nature of the crimes mentioned in the Calendar 710 The hon. Baronet had contended, that both charges were the same; but such was not in reality the fact. In the one charge, the political state of the country was unnecessarily introduced; whilst in the other (Judge Day's), it was necessary to do so, since seditious publications were the objects of prosecution; and, in telling the Town Grand Jury what was the nature of these prosecutions, it was almost impossible not to introduce political topics. The charge delivered by Baron Smith did not at all apply to the cases that were to be brought before the Jury he addressed. He, therefore, considered that the hon. Baronet had been rather unfortunate in his precedent. Indeed, it was not a precedent at all in favour of Baron Smith, but one that might be very properly cited against him. He owned that when he first found, that the hon. Baronet had given notice of the present Motion, that he thought he had some new circumstances bearing upon the case to lay before the House; that he had some explanation to make on the part of Baron Smith, or some communication to make to the House, in order to induce it to depart from the first course adopted. However, when he referred to the hon. Baronet's speech, he saw nothing new in it. No additional facts, and nothing in any way to cause the House to depart from its first Resolution. He agreed with the hon. Baronet about not prejudging the question; though a charge was brought, no one could consider it substantiated until they had the Report of the Committee of the House. Upon the question the House had come to a Resolution, which Resolution could not, without considering all the circumstances of the matter, be hastily rescinded. As he had said in the outset of his speech, he thought that Baron Smith himself would not ask them to rescind their original Resolution, but would beg of them to proceed instantly with their investigation. They ought to proceed with that investigation, unless previously some circumstance or circumstances should arise to induce the House to pause and modify its first Resolution. It was on these grounds, that he took his stand, opposed the present Motion, and advised the House to adhere to their first vote. He hoped, that what, he had said before, and what he had said now, would be taken in the spirit of temperance, and that the debate would 711 be conducted in the same way. Under these circumstances he must call on the House not to consent to the rescinding of a Resolution which had been so lately adopted.
§ Mr. Shaw, in rising to reply to the speech of the right hon. Gentleman, had to intreat that indulgence which he at all times required when he addressed the House, but of which he never stood so entirely in need as on that occasion. The question, for the second time brought before the House, was, perhaps, the most important which the House was ever called on to decide; and although he thought the recent Reform introduced into the House was too sudden and too violent, and, on that account, justly obnoxious to some prejudice in the minds of those who composed it, still he was persuaded, that, in a case involving the independence of the judicial bench, as well as the public reputation, the personal character, and the private feelings of an individual Judge, an assembly of English Gentlemen would calmly and impartially hear, and well consider all the facts and circumstances before they proceeded to decide upon them. And if he were asked why, for the second time, bring forward the case of Baron Smith, when, as the right hon. Gentleman said, there was no new matter to rely upon, by which to change its character, he answered, that he had not only new matter to offer, which he had collected since the first decision, but further to allege, that the case then was considered under the most peculiar disadvantages to the learned Judge, and, as regarded himself, under circumstances of the most peculiar embarrassment; for that learned Judge had no notice of the charge to be brought against him in the Motion of the hon. and learned member for Dublin; nor had he (Mr. Shaw) any conception of the reliance that would be placed on the Returns upon which the hon. and learned Gentleman grounded that Motion—they were moved for, and afterwards abandoned by, the hon. and learned member for Monaghan last year. He had not looked into them since the last Session of Parliament, until he sent for them when they were referred to in the Debate. The House would, he was sure, recollect that there were other circumstances calculated to excite his feelings, and perhaps warp his judgment. He was led to expect that he should have had to 712 defend Baron Smith against the hon. and learned Gentleman (Mr. O'Connell) and his party alone. He had not sufficiently reflected on the fact, that the case was to be brought before an English audience; and regarding an attack upon a Judge, or the abuse of those in authority, on the part of the hon. and learned Member (Mr. O'Connell), as the sort of words, of course, with which he usually enters on his daily business,—he had treated the subject too lightly; and having come into the House under a promise of the support, he had to encounter the opposition, of the Government. He was sorry to hear the right hon. Gentleman, the Secretary for Ireland, attempt to account for the change which took place in his opinions, on the ground that the Motion then brought forward had been substantially altered from what it was when the first notice was given of it. When the right hon. Gentleman was asked on the part of Baron Smith what course the Government would take, when a serious charge affecting the character of a Judge should be brought before the House of Commons—its seriousness being no doubt much lessened on account of the quarter from whence it came—although still it was a serious charge—the right hon. Secretary for Ireland answered, that the Government would oppose the Motion—that he would express some disapprobation of particular expressions in one of the charges of the learned Judge, but would not give utterance to a single word that could hurt his feelings. What was Baron Smith to infer from such an answer? But he would not engage in any special pleading on the point—he asserted that the notice and the Motion were substantially the same. The notice was, that the hon. and learned Gentleman would call the attention of the House to the conduct of Baron Smith, "with a view to his removal from the bench;" the Motion afterwards was a Motion for inquiry into the conduct of that learned Judge, also with a view to his removal from the bench; for he would say, that no other Motion could be entertained. With all respect for the authority of the House, he would contend that it would be incompetent to the House to institute inquiry into the conduct of a Judge with any other view than that of addressing the Throne for his removal; and that ground, he might observe, being a difficult one for the right 713 hon. Gentleman to maintain, he had carefully and dexterously avoided it in his speech that evening. If the conduct of a Judge could be inquired into with any other view than to address the Crown for his removal, then he would say, that the independence of the judicial bench was a mockery; and the Statute referred to by his hon. friend (Sir Edward Knatchbull), as having been recommended by George 3rd, was no better than waste paper. If every error of judgment which a Judge may commit, was to be brought before that House, it would become a mere Court of Appeal. The table of the House would be strewed with petitions after every circuit, from constituents of hon. Members, complaining of charges and other judicial acts of the Judges; and while the Act of Parliament should protect them from the influence of the Crown, they must become slaves to the caprice, and tools to the passions, of every passing breath of popular opinion. A primâ facie case sufficient to justify the removal of Baron Smith from the bench, ought to be made out, before the House could proceed with the inquiry; and that point the right hon. Gentleman left wholly untouched on the present occasion, because he had no ground to stand on, although the other night his whole argument went on the omission of the words "with a view to his removal from the bench;" and why? Not because that omission made any substantial difference, but because the omission in point of form was the only peg on which the Secretary for Ireland could hang his desertion of Baron Smith;—and the right hon. Gentleman (Mr. Stanley), as the advocate general of the Treasury Bench, seemed, as it were, bound to defend them in the point in which they were most assailable. That ground being now abandoned by the right hon. Gentleman, he should have had little more to say, had not the noble Lord, the Chancellor of the Exchequer, as well as the Solicitor General, affirmed that the grounds stated were sufficient, if fully supported, for the removal of Baron Smith from the bench. So also said the hon. and learned member for Dublin; and to effect that object was still his avowed purpose. Now let the House shortly examine the grounds thus alleged to be valid and sufficient to authorise the House to lend its aid in the accomplishment of that object. The hon. and learned Member divided his charge 714 into two parts. The first related to the Returns moved for last year by the hon. and learned member for Monaghan (Mr. Perrin), and very judiciously abandoned by him, because he could find nothing in them that could justify the removal of Baron Smith; and he (Mr. Shaw) trusted the House would bear with him for a few moments, while he endeavoured to point out the utter futility of the charge which the hon. and learned member for Dublin attempted to raise upon these Returns. He had indeed endeavoured to confuse the Returns, by mixing up other matters with them; he had spoken of the sittings at nisi prius, and he believed the hon. and learned Gentleman's statements on that subject were grossly exaggerated; but it should be observed, that, even if they were not, it was not the regular business of Baron Smith to sit at nisi prius at all; it was that of the Chief Baron; and, in case of his absence, from sickness or any other unavoidable cause, any one of the three Puisne Barons might sit; and this duty distributed amongst them would not, probably, occasion Baron Smith to sit more than once in twelve months. Then, as another make-weight, the hon. and learned Gentleman had endeavoured to throw in some accusation, regarding circumstances said to have occurred on the Munster Circuit, at the Limerick Assizes, and had thus afforded the House an example by which to judge of the manner in which he has been sweeping up the indiscretions, if such they might be called, of the learned Judge; for the fact was, that Baron Smith had not gone the Circuit in question for eleven years. The right hon. Secretary for the Colonies, stated, that the hon. and learned member for Monaghan, objected to the attendance of the learned Judge on the north-east Circuit, at the last Spring Assizes; that he moved for Returns in consequence, and that it was on those Returns that the right hon. Secretary relied. No doubt that learned Gentleman (Mr. Perrin) selected what he considered the strongest sample—the worst feature in the imputed misconduct. He entreated the attention of the House to these Returns, and he implored them, at the same time, to strip the question of all party and political considerations, as it was his sincere desire to do; and he did not entertain a doubt that a reference to these very Returns would satisfy them that there was not a 715 shadow of foundation for the charge. The Returns related to the Spring Assizes in the year 1833, for four counties—Monaghan, Armagh, Antrim, and Down. Baron Smith did not sit in the Crown Court at Monaghan, until the last day of the Assizes, when, he did so merely to assist his brother Judge. At the Assizes for Down, he sat each day from about half-past eleven to about half-past six. He would now, having cleared the ground of what was not relied upon, come to the sitting at Armagh, which had in truth been made the whole gravamen of the charge. He had a letter from the High Sheriff of that county, stating that, when Baron Smith was at Monaghan, the writer, as bound in his capacity of High Sheriff, waited on him with the calendar, which then contained the names of but twenty-four persons for trial. The Sheriff congratulated the Judge on the prospect of a light Assizes, and as the calendar at Monaghan was heavy, Baron Smith said he would remain there to assist the Chief Justice, on the Thursday on which he (Baron Smith) was to open the Commission at Armagh. He accordingly sat for some hours in Monaghan, and thence proceeded to Armagh, and, at three o'clock, took his seat on the bench, and sat till seven o'clock. The next, and every morning, he went into Court at half-past eleven; and here he would observe, that there seemed to be some mistake about the hours at which the Courts in Ireland had been accustomed to sit. What he said on a former occasion was, that in Ireland, in the superior Courts, it never had been the practice of the Judges to sit before eleven o'clock. Every day at the Armagh Assizes Baron Smith sat at half-past eleven o'clock; no complaint was made so far as regarded the sitting on the Friday. He would next entreat the attention of the House, and of the right hon. Secretary for the Colonies in particular, to what was to follow. He knew that the right hon. Secretary of State was incapable of wilfully misrepresenting a fact, but in this part of the case he fell into a great error; and he was confident he could explain it to the right hon. Gentleman's perfect satisfaction. Baron Smith sat again on Saturday, at half-past eleven; when he arrived at Armagh the Sheriff informed him that, during the four days which had intervened between his sitting at Monaghan and his arrival at 716 Armagh, the calendar had trebled, which was occasioned by the circumstance of a number of persons who had been out on bail, having unexpectedly come in to take their trials. He consulted the convenience of the bar, and the gentlemen of the county who were in attendance, and said, he was willing to give up all his time and do all in his power to deliver the gaol of the prisoners, and allow all persons who had business at the Assizes to return to their homes with all convenient expedition. Would it not be admitted by every hon. Member, that sitting late at night was productive of much less mischief, than it would be to leave a large number of prisoners over for trial at the next assizes? Baron Smith took the Bench again on Saturday morning; and owing to the great and unprecedented pressure of business, he sat until a quarter before twelve that night, which was as late as he possibly could sit without infringing on the Sabbath. He took the Bench again on Monday, at the same hour, half-past eleven, and he found the greatest difficulty in getting through the business—he sat for eighteen hours without moving off the bench. Was this a mere whim or caprice? Could this have been any enjoyment to an old man of nearly seventy-five years of age? But, above all, was it a neglect of duty? He then went to bed for five hours, and, in five hours and a-half, he returned to the Bench to perform his public duty; and he sat from half-past eleven until seven that evening, which was upwards of eight hours, and without taking rest or refreshment he got into his carriage, and that night he performed a journey of nearly fifty miles, for the purpose of being at his post at the next assizes town on the following morning. And, good God! was this the neglect of duty (forthat was the only charge the House had to decide) for which an aged Judge was to fall under the censure of the House of Commons? If it had suited the purpose of the hon. and learned Gentleman—if this learned Judge had been countenancing, in place of denouncing agitation, what an excellent ground it would have been for a vote of thanks to have been moved to him by the hon. and learned Gentleman. The result of these extraordinary and most laudable exertions on the part of the learned Judge was, that he had been confined to his bed by illness for a considerable time after 717 his return to Dublin. He trusted he did I not promise too much when he said, that he would endeavour to explain the second part of the charge as satisfactorily as he trusted he had done the first. He need not remind the House of the lamentable state of agitation in which Ireland had been for the last few years; that his Majesty's speech at the commencement of the last Session spoke of the "violence and insubordination" having risen in that country to a most fearful height—" rendering life and property insecure," and defying "the authority of the law." Baron Smith speaks to the same effect, in the commencement of the very charge to which he would more particularly refer—that delivered in October last. It was true that the House laboured under the peculiar difficulty of not knowing what was the precise and actual accusation that was brought against the learned Judge by the hon. and learned Gentleman. The first part of the charge was for a neglect of duty; the second, that he had introduced political topics into his charges to Grand Juries—not confining the accusation to any one particular charge. The learned Baron commenced his series of charges in the south of Ireland, in the course of which he made reference to the predial disturbances then going on in that part of the country. He was next in the north of Ireland, dwelling on what he stated to be the prevailing evil there, party processions. Having in the Queen's County alluded to the predial disturbances, what did he say when he got into the county of Antrim? He there makes some strong and very pointed allusions to the orange processions, and gives most excellent advice to the persons who were engaged in them, beseeching them to lay aside all such demonstrations of feeling, and "to abstain from whatever may tend to irritate dissension, or provoke jealousy." He then came to the city of Dublin, where the Judge sat, as one of the two Judges, at what may be termed a Special Commission, appointed for the purpose of trying cases of more than ordinary difficulty and importance, and he (Mr. Shaw) thought the time and place were peculiarly adapted to a charge of the nature which he delivered. If, among the persons to be tried before the learned Judge, there had been any charged with offences arising out of the agitation to which the learned Judge was advert- 718 ing, he admitted it would have been the duty of the Judge to define the legal offence, and state to the Jury what was the particular nature of the indictment, and the evidence that would be necessary to substantiate its averments; but it would be exceedingly improper then to dwell on the enormity of the offence, or to make use of observations calculated to prejudice the minds, or inflame the passions of the jury against the offenders whom they were about to have brought before them. He could not, therefore, have selected a better time for making the remarks which occurred to him, than an occasion when no specific crimes of the nature he referred to came under their consideration; and then with regard to the place, he chose the city of Dublin as the seat of agitation—the very fountain from which flowed the streams of faction, turbulence, and sedition, which were then poisoning the entire country. In the charge to which he (Mr. Shaw) now referred, Baron Smith commenced by saying "that when the stale of the calendar or of the country called for observation from the Bench, he had given such admonition as the case seemed to him to require. When, on the other hand, no such necessity existed, he had not been in the habit of stringing together a chain of nothings, and thus wasting time that might be more beneficially employed. The consequence had been, that while, upon the whole, during the many years he had a seat upon the Bench, he bad seldom charged Grand Juries, yet, during the last two years, he thought it his duty repeatedly to address them. When the alarming situation of the country did not seem to be understood, he had sounded the tocsin, and subsequent events proved that this was no false alarm. The audacity of factious leaders was augmented by impunity, and the progress of that sedition which they circulated increased in the same proportion. Hinc illœ lackrijmœ! But although the hon. and learned member for Dublin might have taken great offence at this allusion of the learned Baron, still he maintained that it did not prove the Judge to have travelled out of his proper course, or departed from his strict duty. The learned Baron went on to deprecate the resistance to tithes and other legal payments, and he then made this observation: "So far as is connected with the due control and influence of that with 719 which I have most concern—the law—I conceive the epidemic of our day to be a turbulent abuse of the valuable right of petition, making it a channel for the conveyance not of submissive prayer, but of refractory invective and insolent dictation." The learned Judge considered this to be an interference with that which he considered to be his duty to explain and protect—namely, the ordinary course of the law. It was not his intention to trouble the House by going through the charge at length, but he could not help referring to an expression particularly relied on by the noble Lord, (the Paymaster of the Forces,) and he would pardon him for saying that, aware how excellent a judge the noble Lord was of the English language, his observations upon it satisfied him that the noble Lord had not read the charge when he made them—the noble Lord would set him right if he was mistaken. The expression to which he alluded was "vulgar numbers." Baron Smith was observing, that Catholic Emancipation having been granted (of which he was one of the most distinguished advocates) that the agitators now insisted that there was a "universal people" whom the Government could not resist, and in regard of whom they even must not re-main "neutral." He then continued—I "If such doctrine were to be admitted, what would be its result? That there was nothing sanative in the supposed, Relief Bill—that it left popular discontent and factious extortion in full morbid vigour; and merely stripping it of one pretext for agitation, drove its ingenuity upon another. But it was as Catholics they had been a party; it was now in the character of the universal people that they were working, and Government must not presume even to be neutral—it must not decline to work along with them. Now, it was even boasted that an over-whelming majority of the universal people was Roman Catholic, while those who observed the movement of the mass, had to inquire of themselves, whether it was in any degree as Catholics, or in the mere capacity of people unconnectedly with sectarian objects that they were thus in motion." Again, "Independently of its faith, what was this universal people? Did it embrace the property, the rank, education intelligence, or merely the physical force, and vulgar numbers (phrases plainly meant here as syuonymous) of the country? and 720 if its objects were not sectarian, were they not insurrectionary, republican, revolutionary?" If such were Baron Smith's opinions, had he not a right, as an independent Judge, to express them, that the physical force of the country, taking on itself the right to dictate to the Government what course they ought to pursue, had a tendency to lead to consequences "insurrectionary, republican, and revolutionary." The learned Judge then referred to the Coercion Bill, and said, that he hoped the effects it had produced would be lasting and permanent, and if so, that all the objects of his charges would be accomplished. And then, in words conveying a delicate compliment to the head of the Irish Government, and, at the same time, as it were, winding up the series of those charges called for, as he stated, by the extraordinary state of the country, he proceeds—" Had not the representative of his Majesty done something like proposing this as his noble end, and would not the Government furnish all appliances and means for its attainment; then, indeed, amidst the universal congratulation of all but those whose wishes and whose works were evil, we should accede to the sentiment which a French poet had expressed, that the chorussed and exulting cry of a contented and prosperous people, formed the only eloquence appropriate to the praise of kings." The charge that was addressed to the Grand Jury of the Queen's County contained every topic, every argument, every sentiment, almost the same expressions; was equally figurative, metaphorical and eloquent (and he had yet to learn that these were crimes), with the charge most particularly objected to by the hon. and learned member for Dublin. The House would, he was sure, pardon him for calling their attention particularly to this charge, to be found printed in an Appendix to a Report of a Committee of that House, which was open to every objection that could be brought against the one more specifically the subject of complaint. The only difference between them was, that the one referred to prædial disturbances; the other to political agitation; both of which, in his opinion, it was equally within the Judge's province to allude to. This charge—the one published by this House—was delivered by the learned Baron at the Mary borough Lent Assizes of 1832. He talks of a tumultuary array against rights long un- 721 disputed; of persons giving advice to the people to obey the law, and meaning that they should do exactly the reverse; he talks of subverting a "Christian Church," and says, that should the havoc once commence, it will not spare establishments, however sacred; and he then uses the very word which the noble Paymaster of the Forces so much objected to in another charge, the word "vulgar," in the very same sense. At the time that this was printed by the House of Commons, they did not think it so very objectionable. The learned Baron then says, that a resistance to tithes will eventually lead to a resistance to the payment of rent and taxes, the particular in which his October charge was most objected to; and he then observes, upon very delicate ground, had it been in the last charge:—" But a remonstrance has been urged against suffering pomps and vanities to soil the purity of our Church—hypocrisy and cant. In short, there is not a topic in the one charge that is not to be found in the other; and they both equally come within the words and meaning of the terms of the order of the House, which it is this night sought to discharge. But the one to which he was then referring, was printed at the recommendation of a Committee of the House of Commons. In their report they refer to it in terms of the highest approbation in the following words:—" The very able charges of the Chief Justice and Mr. Baron Smith, published in our appendix, afford the fullest information with respect to the nature and extent of the outrages and disturbances that have taken place." And this identical charge was included under the words of the Motion of the hon. and learned member for Dublin; for in it were to be found "political topics in his charges to Grand Juries." Would the right hon. Gentleman contend that more was said, even that he would call "political," in the case of the Dublin charge with respect to political agitation, than was said in the case of the Maryborough charge with respect to predial disturbance? If the quotation of poetry—if the citing of classical authors—if the use of figurative language be an offence,—he is equally guilty in both instances. But, if he be guilty, the House must be considered an accomplice in his iniquity; for they have adopted his language, printed it in their Appendix, and approved of it in their Report. But, perhaps, it might 722 be imagined, that this was the Report of a Committee of old inveterate Tories, or the political partizans of this Judge. He (Mr. Shaw) declared, with the utmost sincerity and honesty, that he thought the subject bore no reference whatever to any party question. He thought, as a question involving the privilege and the haracter of a Judge of this country, it ought to be divested of everything that could have the smallest relation to party feeling. But, he would read the names of this Committee. The chairman was Sir Henry Parnell, next comes Mr. Stanley, Lord Ebrington, Mr. Rice, Lord Killeen, Mr. Crampton, Mr. More O'Ferrall, Sir John Burke, Mr. Wyse, Mr. J. Grattan, Mr. Wallace, Lord Oxmantown, Lord Dun-cannon, the Earl of Ossory, Mr. J. Lambert, Mr. Chapman, and, above all and before all, Mr. Daniel O'Connell. This Committee not only published this charge of Baron Smith, and referred to it in their report in terms of the most marked approbation, but the Chief Justice, the head of the Irish law bench, having spoken of Baron's Smith's charge in language of the warmest praise, the Committee published his approbation of the charge, as well as the charge itself, as he (Mr. Shaw) would then read to the House, from the same Appendix to their own Report. The Chief Justice thus speaks, referring to the charge of Baron Smith—" An appeal from this bench upon all those topics which you cannot have forgotten—an appeal carrying with it a weight, instruction, and persuasiveness, upon which, placed as I now am, I am not left at liberty to say more, than that I will not, by a worse than useless repetition, run the risk of effacing the profound impression made upon your hearts and understandings." Then, as regarded the Government—the very Government who were now supporting this Motion—their Attorney-General, their first law officer and public prosecutor, in opening a Special Commission after a number of those very "charges" of Baron Smith's had been delivered, refers to them in the following terms:—" All that can be said upon the subject may be expressed in a single sentence, in an address of Baron Smith, delivered at the last Spring Assizes, and which I am happy to say, has been published, and is in extensive circulation. His Lordship says, "No grievance which the people can suffer, would be so great, as that which they would inflict upon them- 723 selves by the subversion of the law." He would then ask the right hon. Secretary for the Colonies (Mr. Stanley), if he had not himself praised, those very charges when he was Secretary for Ireland?—if he had not selected the very Judge whom he now joined in censuring as a "political haranguer," after he had pronounced a considerable number of those charges that are now called "political harangues?" Aye! and because he had pronounced him the fittest Judge to preside with the Chief Justice at a Special Commission. He (Mr. Shaw) would further inquire, had any counsel, any criminal, any Grand or other Juror, or any human being connected with the administration of justice, ever made a complaint to the Government, or of which the Government were aware, of Baron Smith, either in respect of his alleged "neglect of duty," or of those alleged "political harangues?" Or had the Irish Government, with whom Baron Smith was in constant communication, or the Lord Chancellor, or any one in authority, ever intimated or hinted to him, before this measure of extraordinary severity was resorted to, that objection was taken either to his late hours or the topics he had introduced in his charges. He answered, never and he would close this part of the case by emphatically asking of the right hon. Secretary for Ireland—and he entreated, that if the right hon. Gentleman could give a satisfactory answer, he would interrupt him (Mr. Shaw) to do so—had he, or any other individual connected with the Irish Government, ever directly or indirectly, made a communication to Baron "Smith on the subject, save and except one, and that one—a promise that the right hon. Gentleman and the Government would oppose the Motion against Baron Smith, which they were at that moment supporting, with reference to the peculiar and extraordinary condition of Ireland, which induced Baron Smith, as he himself has stated in these charges, to depart from his ordinary habit, and introduce unusual matter into his charges to Grand Juries. He, in proof of it, need only quote the King's Speeches of the last and the present year, and the language in which the Prime Minister, in recommending the Coercion Bill to Ireland, described that part of the United Kingdom; he said, that "the most extensive combinations were formed against the laws;" that all their "ordinary func- 724 tions were suspended;" that "injured persons dare not prosecute, witnesses give evidence, or jurors convict;" and that, in short, all the ordinary means of enforcing the laws, or vindicating their authority, had been tried in vain. Would this have been correct, unless he could have included the best exertions of the Judges of the land in support of those violated laws and their despised authority? And is it then to be considered a crime demanding the censure of Parliament—that one of these very Judges should raise his warning voice from the bench against the very practices which Lord Grey denounced as the cause of all this evil—should trace crime to its true source—should endeavour to arrest agitation on the direct road to a transgression of the law, and caution the deluded and unfortunate "misled" against their factious and seditious misleaders?" Lord Grey very justly reminds the Legislature that "salus populi, suprema lex." Lord Bacon has informed the Judges that they, above all other things, must attend to that conclusion of the Roman tables, "salus populi, suprema lex"—and that, "unless laws are in order to that end, they are but things captious." And here he (Mr. Shaw) might be permitted to quote a passage from a charge of that distinguished author, bearing precisely on the present question. Lord Bacon, in his speech to the Judges before the summer circuits, in the year 1617, observes,—" Next, let me commend unto you the repressing, as much as may be, of faction in the counties, of which ensue infinite inconveniences and perturbations of all good order, and crossing of all good service in court or country, or wheresoever. Cicero, when he was consul, had devised a fine remedy, a mild one, but an effectual and apt one; for he saith, Eos, qui otium perturbant reddam otiosos.' Those that trouble othersquiet—I will give them quiet. They shall have nothing to do, nor no authority shall be put into their hands. If I may know from you, of any who are in the country that are heads or hands of faction, or men of turbulent spirits, I shall give them Cicero's reward as much as in me is." Now, the right hon. Gentleman (Mr. Littleton) seemed perfectly acquainted with Cicero's remedy, but to have applied it after a truly Irish fashion; Lord Bacon, when instructing the English Judges in their duty, says to the Judge, "Let me know of any who are 725 heads of faction, or men of turbulent spirits, and, as much as in me is, I will give them quiet—they shall have Cicero's reward;" but, in Ireland, the right hon. Secretary says to the head of all faction and all turbulence, point out to me the Judge who thwarts you in your course—who mars your projects, or checks your agitation—and, in the fullest transposition both of the letter and the spirit of Cicero's maxim, "qui otium perturbat," let me but know, and "eum reddam otiosum." The hon. and learned Gentleman (Mr. O'Connell) said the other night that he protested against any inference that he ever admitted Baron Smith had "learning" or "integrity"—that he never did admit he "was a learned Judge," a "man of enlarged views," or who "understood the law of the land."
§ Mr. Shawsaid, he read them from a note he had made at the moment; that he was borne out by the recollection of many hon. Members around him; and that all he could say, was, if the hon. and learned Gentleman had not spoken the words himself, some other person had spoken them out of his mouth. He would refer upon that point to an authority which was not wholly inapplicable:—In the year 1827, there had been much interest excited in Dublin by an action which was brought against a Roman Catholic clergyman, the reverend Mr. Maguire; and shortly after it had terminated he found it reported in the Eveniny Post; but the hon. and learned Gentleman would recollect, that the Evening Post then, was not the same Evening Post it was now; it then supported the political views of the hon. and learned Member. The extract, however, was as follows—it purported to be from a speech delivered by a leading member of the Roman Catholic Association, on the 15th December, 1827, he said, 'He had a Motion to make, but although notice of it was not on the books, he was sure they would dispense with it—he alluded to the triumph achieved by the reverend Mr. Maguire; it afforded one instance of the perfectly pure administration of justice; we had the Bench filled as it ought to be filled on that occasion; a truly learned Judge presided, whose dignified impartiality is graced by almost superhuman talent; his great mind is like the diamond whose brilliancy and 726 preciousness renders it of inestimable value'. Who was that Judge? The same who this night stood accused before this House. Who pronounced that glowing encomium?—The same individual who this night stands before you as his accuser. Yes, in 1827, Catholic Emancipation had not yet been granted; Baron Smith had been one of its ablest advocates; a Roman Catholic clergyman had obtained a verdict; under the sanction, no doubt, of his righteous judgment; and Mr. Daniel O'Connell of the Irish Catholic Association (I speak of an historical fact) said Baron Smith was "a truly learned Judge;" his "dignified impartiality "adorned the Bench, and was an example for all others. His talents were "superhuman," and the diamond was a suitable emblem of his "preciousness," and his "inestimable value." In 1834, a Repeal of the Union is the question which serves to keep up agitation in Ireland. Baron Smith was a friend of the Union; he had felt it his duty to warn the deluded instruments of agitation against those who would mislead, and afterwards betray them; and the hon. and learned member for Dublin not only said, he (Baron Smith) was neither learned nor talented, but that he never said he was, and described him as a "political partizan "—one whose object it is to "excite and perpetuate religious animosities"—one "who will not administer the law impartially, but preaches disturbance and enmity among the people." Why, the hon. and learned Gentleman was not satisfied with deluding the people, but he wanted to delude this House; he knew well that if he made that charge against Baron Smith before an Irish audience, choose them from what rank or class, he might—no matter of what religious persuasion, or what political creed—that there would not be one individual amongst them who would believe him. Nay, he doubted not that he would yet adduce as an argument in favour of the Repeal of the Union, that he told them Baron Smith was a "political partizan "—the "promoter of religious strife"—a man before whom "a Roman Catholic could not expect a fair trial "—and that those Englishmen were so ignorant of the affairs of Ireland, and the opinions and feelings of Irishmen, that they believed him. But he would not weary the House by longer dwelling on the inconsistencies 727 of the hon. and learned Gentleman. He trusted that he had convinced the House that there had neither been neglect of duty or the introduction of improper matter into his charges, on the part of Baron Smith; but supposing even there were some trifling indiscretion; some expression or allusion that you would rather had been avoided; was that the real question? Has there been the remotest crime—the approach to an offence imputed—which could justify the extreme and extraordinary exercise of power this House was called upon to put forth? 'No (continued the hon. and learned Gentleman) I challenge the boldest adventurer in Irish agitation to stand forward before an assembly of English gentlemen, and bring a charge of the slightest corruption, partiality, oppression, or any other species of criminality against Baron Smith. Let them be-take themselves to the veriest haunts of faction, turbulence, sedition, and cater in the foetid atmosphere of the most squalid misery and vice—let them include, nay, I should wish they would, every criminal that learned Judge (who, if he had a fault, it was that he was too humane) has ever tried, and I defy them to carry thence one single breath wherewith to sully the pure and untarnished reputation of that distinguished man." Had one individual dared throughout the two nights of this discussion, to cast the shadow of an improper motive across the long and honourable path of his Judicial life. What then? Would that House—the question was not whether they approve or disapprove of some particular phrase or figure, or some trifling unpunctuality; but without the imputation of a crime—without the charge of an offence—drag that venerable man—the father of the Irish Bench—the head and ornament of Irish society—the pride of Irish literature; him—who in the days of his youth, his vigour, his health, had illumined the brightest pages of Irish history—now, when the brightness of his former fame and great attainments was sinking into the peacefulness of retirement, full of years—covered with the honour, respect, and esteem of his entire country—and place him a criminal at that Bar! Forbid it justice, honour, truth! Was there a generous mind, a feeling heart, a noble sentiment in Ireland, that would not revolt against an act of such grievous injury—such wanton, crying, cruel, un- 728 precedented injustice? And who was his accuser?—who was it that asked the House without evidence, and upon his mere statement, to condemn that aged and venerated Judge? The factious, turbulent, and seditious Agitator; the man who caused the passing of a special Act of Parliament against Illegal Associations—violated its provisions, and escaped its penalties by its accidental expiration—who is, at this moment, vicariously suffering in the person of another the punishment of that sedition of which he is this night the advocate—and whom that very Parliament are now only holding within the bounds of allegiance and the limits of the law, by the provisions of an extreme and extra-constitutional Statute. Was that the man at whose feet they would prostrate the laws of the land, and in place of their mild and salutary sway, set up the iron rule of his dictation? Would they subvert the Judicial Bench, and for it substitute the arbitrary will of one despotic tyrant? Would they render insecure their persons, properties, and lives? Would they, at his bidding, drive peace, and safety, from Ireland, and leave the inhabitants, and their children, at the mercy of the lawless agitator—a prey to the midnight murderer, and the voluptuous assassin? Would they overturn the altars of the Protestant religion? He spoke that in no spirit of religious or sectarian bigotry—he had been himself friendly to the concession of political equality to his Roman Catholic fellow-countrymen—he thought they would have then been content; but he was grievously mistaken. They cried aloud for the destruction of the Protestant Church; and if this policy be continued, it will but inflame the infuriate zeal, with which the Irish Agitator thirsts for the life's blood of Protestantism. He spoke not personally of Protestants, but religiously of Protestantism. If they confirmed the vote, they would set the most fatal precedent that ever was established in a British House of Commons—they would abrogate the boasted Charter of Judicial independence, passed not to uphold the personal rank and dignity of the Judge, but as the best security of the rights and liberties of the subject. And as to Ireland—they would stab to the heart her laws, her liberties, her peace, and her prosperity; and with them would fall withered to the ground every hope of amelioration in the unhappy 729 condition of that unhappiest of countries.
Mr. O'Connellsaid, that no man was more disposed than he was to discuss the question before the House with perfect coolness and tranquillity of temper. He might, perhaps, lose in point of figure, but in the observations he had to offer he was sure he could not lose by contrast with the concluding part of the speech of the hon. and learned Gentleman, the member for the University of Dublin. He felt he had a painful task to perform; but he would endeavour to discharge the duty he had undertaken, notwithstanding the abuse and personalities by which he had been assailed. It was not his intention to occupy the time of the House in defending himself against these personal attacks. He had been accustomed to these attacks, and so far from their producing any effect upon him, he now gave to every hon. Member the completest latitude for personal abuse. He was not there to defend himself, but to state to the House the reasons why they should not sanction the Motion of the hon. Baronet, and, in doing so, he would endeavour to be as brief as possible. In bringing the charge, he had been actuated by no personal or political feeling; he had undertaken it solely on public grounds; and now he called on the House to consider the case as it really stood. On Thursday, they came to a solemn determination, expressed by a deliberate vote of that House, to do—what? Why to inquire into certain charges preferred against a Judge in Ireland; and what were they now called upon to do? They were called upon to rescind the determination which they came to on a former night, after the most grave and deliberate consideration. What, he asked, would be thought of a grave deliberative assembly, who came to a solemn decision on Thursday, and in a week afterwards rescinded that resolution? He hoped that they would not stultify themselves by sanctioning such a proceeding. Did the House recollect a case which occurred in the last Session, when, upon a question involving the most serious consequences, when the revenue of the country was at stake, they had, upon a Motion of the Chancellor of the Exchequer respecting the Malt-tax, rescinded the vote which they had passed but four days before? Were they not taunted in every shape and form?—and did they hear the end of it for months afterwards? If, 730 upon that occasion, they yielded to the Motion of the hon. Baronet, and upon a question like the present, in the second Session of a Reformed Parliament, again reversed their former decision, what would the country think of the absurdity—he might almost say the turpitude—of such an act? Oh, there was one reason for the course which the hon. Baronet and learned Gentleman had adopted. No matter what delinquencies were perpetrated against the people, they conceived that there should be perfect impunity for the offenders. The party which the hon. and learned Gentleman represented, had never been called to account or punished for the crimes they had committed against the people; and that opposition was got up for the purpose of perpetuating the old system of Tory misrule in Ireland. But he called upon the House to show them that this impunity was at an end; that a faction should no longer be permitted to trample upon public liberty—a faction whose energies were directed to engender strife in the country—to destroy every social feeling, and who, under the mask of religion, had taken every opportunity, through the medium of their travelling conventicles, to insult the religion of the people. The people of Ireland felt that the present Government intended to redress their grievances; they had every confidence in the right hon. Secretary for Ireland, because they felt that he was disposed to benefit their country; they had experienced, even during the short administration of the right hon. Gentleman, a proof of his determination to deal out to them impartial justice; and it was because the hon. and learned Gentleman saw that the reign of impunity was threatened, that he entertained the House with the pathetic and lachrymose oration which they had just heard—"Hinc illæ lachrymæ." Hence the tears which were so profusely shed by the hon. and learned Gentleman. Oh, they were not party tears at all; they flowed freely and spontaneously from the pure fountain of charity; they were, in fact, the genuine essence, the very "life's blood of true Protestantism." The hon. Baronet, and the hon. and learned member for the University of Dublin, had both talked much about the independence of Judges. The Judges in Ireland were certainly independent of fear; but were they independent of favour? They were independent of the Crown; but were they 731 to be independent of Parliament? Was there no power to which they should be responsible for their misconduct? The Judges were independent of the people, because no action could be instituted against them. The hon. Baronet had talked a good deal about his love for Ireland. During his Parliamentary career he had an opportunity of showing it, but the manner in which he evinced his love for the people of Ireland was, by voting against their liberties. He might, no doubt, and he believed the fact to be so, that the hon. Baronet acted from conscientious motives, but he confessed it sounded somewhat strange in his ears, to hear the hon. Baronet talk about his love for Ireland. He had been taunted with not having his list of names ready when the House voted for the appointment of a Committee; and this circumstance bad been urged by the hon. and learned Gentleman as a proof that he did not expect that his Motion would have been carried. This point could be easily explained. He did not come down to the House with the names of a Committee, because he could not foresee the course which it might be necessary for him to take. Circumstances arose in the course of the discussion which obliged him to alter his original intention. Some members of the Government had voted against him. Was he wrong, he would ask, under all the circumstances, in asking the assistance of the Government in naming that Committee? In the course which he pursued, he could solemnly affirm, he was solely influenced by motives of the strictest justice towards Baron Smith, and his object was to divest the case of the slightest appearance of party or partizanship. In proof of this, he might adduce the fact, that when the hon. and learned Gentleman requested a postponement for a week, he not only assented, but, unsolicited, offered to postpone it for a fortnight. He would next advert to the case of Judge Day, which had been relied on by the supporters of the present Motion. With respect to the charge of that Judge, there were parts of it of which he certainly could not approve; but was it to be used as an argument, that political charges were justifiable because Judge Day had made one?—His charge against Baron Smith was two-fold. The first part related to a neglect of duty—the second, to a political charge delivered by him in October, He took up 732 the two topics. But, before he proceeded further, he must say, with respect to an observation which had been made by the hon. and learned Gentleman in the course of his speech, that if he understood him to disparage the talents of Baron Smith, he had completely mistaken him. The case to which the hon. and learned Gentleman referred was too strong in his recollection, but it was a curious fact, that this very party who now had taken up this case for the learned Baron, were his most violent assailants at the very period to which the hon. and learned Gentleman referred. Indeed, if such language had been used towards a Judge of the land by persons who did not belong to the party for whom there was then perfect impunity in Ireland, they would have been prosecuted, convicted, and punished for the offence. He would then speak of his charge. The hon. and learned Gentleman had stated, that he (Mr. O'Connell) had made this charge upon his own authority, and unsupported by any documentary evidence. Now, this was not the case. He produced the Return, showing that fourteen persons had been tried, with one exception, for felonies, between the hours of six o'clock in the evening, and six o'clock in the morning. He had also shown, not by his own assertion, but by a Parliamentary Return, that Baron Smith never went into Court before half-past eleven in the morning. If Baron Smith's object was to expedite the public business, had he not a very plain and simple course by which he might have accomplished it? Instead of taking the bench at half-past eleven, could he not sit at eight; and between that hour and eight in the evening, would he not have gone through much more business, than he could possibly accomplish between six in the evening and six in the morning. It had been stated by the hon. and learned Gentleman, that the calendar was more than double, in consequence of persons who were sent on bail coming in to take their trials, and that the cause of Baron Smith's late sitting arose from an anxiety to deliver the gaol, and get through the business of the Assizes with as much dispatch as possible. If this was really his object, why could he not have tried those who were in gaol charged with felonies during the day, and leave those who were out on bail for the last; and if he found he could not get through the latter cases within the pre- 733 scribed time, could he not adjourn the Assizes, and come back again to finish the business of the county. This plan, it might be said, would inconvenience the Jurors; but would it not be a much greater inconvenience to Jurors, and a still greater injustice to the prisoners, to compel them to proceed with their trials during the night? The hon. and learned Gentleman had stated another instance of expedition on the part of Baron Smith, where he described him as setting off in the night on a journey of sixty miles, in order to be in time to open the Assizes in the next town on his Circuit the following day. Now, it turned out that these so called sixty miles were scarcely forty. [An hon. Member: Thirty-eight.] An hon. Gentleman near him said it was only thirty-eight. Well, he would not quarrel about the distance; but he altogether denied the necessity of those midnight expeditions, because Baron Smith was not to preside in the Criminal Court in the next Assize town. The case which the hon. and learned Gentleman had adduced, only proved that the learned Baron entertained the same passion for travelling, as he did for trying prisoners by night. It was said, that the hon. and learned member for Monaghan (Sergeant Perrin) did not intend to persevere in his Motion, because he said he had not grounds to substantiate his charge. The hon. and learned Gentleman would be incapable of bringing forward a charge against any Judge, unless he were satisfied that he was able to prove it. But the hon. member for Monaghan had assured him that the quantity of public business which remained at the close of the last Session, alone prevented him from going on with his Motion; but he had been fully determined to bring it forward in the present Session, if he (Mr. O'Connell) had not taken it up. It was stated by the hon. and learned Gentleman, that the habits of the Irish Judges were much later than those of England. He admitted that, during term, the Judges in Ireland did go into Court later than the English Judges; but this was because they had not so much business to do. But in the county towns, on Circuit, the usual hour at which the Judges took their seats was nine, certainly not later than ten o'clock; and he (Mr. O'Connell) defied any hon. member for Ireland to instance the case of a single Judge (Baron Smith excepted) 734 who was in the habit of taking his seat at a later hour. He would state to the House a fact, which he knew of his own knowledge, respecting Baron Smith. It was the practice of that learned Judge, during the sittings in nisi prius, not to take his seat upon the bench until twelve, one, and sometimes two o'clock; and a client of his had been seriously injured, being obliged to submit to the postponement of his trial in consequence of the irregularity of the Judge. With regard to what had been urged in defence of the learned Baron, relative to the late hours at which he entered Court, and the unseasonable hours to which the sittings were prolonged, he begged to say, that such was not an occasional occurrence, but was, to a certain extent, a habit with him. Hon. Members would recollect the affray, some time since, at Castle pollard, in which eleven persons—some say fourteen—but certainly eleven persons, lost their lives. The police were put upon their trial for murder, and Baron Smith was the Judge who tried the case. The Court did not sit on the first day until half-past three in the afternoon, and on the following day, not until half-past seven. The counsel for the prisoners wished for an adjournment, but that was refused. The Court sat on the second day until six o'clock on the following morning, when the Jury, not being able to come to an agreement, the prisoners were acquitted in consequence. He did not mean to say that they ought not to be acquitted; he thought they ought not. One of the Jury had caught a cold upon the occasion, and had, from that day to the present, been afflicted with deafness. [A laugh]. Was it, he would ask, a subject for laughter that an Irish Juror had been afflicted with an incurable disease from his zealous discharge of his public duties? He was glad that he had misinterpreted that laugh. So far for the first charge of neglect of duty. That part of the case, he thought, was proved, entirely and completely. He (Mr. O'Connell) had been called a prosecutor in this case. He did not mean to refuse the designation. He was bound in this case to be a prosecutor; and he was ready with the proofs of the charges he had submitted. Who was it who was shrinking from the inquiry? It was the hon. and learned member for the University of Dublin, and not he (Mr. O'Connell). It was his party who was 735 shrinking from the charge; and finding he had but one chance, he endeavoured to awaken the sympathy of the House, by an appeal in favour of a Judge venerable from his years. That, in his judgment, was an improper proceeding, and one to which the learned Gentleman should not have had recourse. In the accusation which he (Mr. O'Connell) had brought forward, he would appeal to the House had he displayed any symptoms of party or of factious feeling? Why then was it sought to be made a party question? In the defence which had been set up, many of Baron Smith's charges were referred to, while he had merely grounded his accusation upon one—that delivered at Dublin. To be sure it might be said, that in his notice he had used the word "charges." He had done so, and he had done it from the sole motive that Baron Smith's defenders might, in the Committee of Inquiry, have any advantage that could be derived from his other charges. He had done it merely to give them an opportunity of defending him by reference to all his charges, if any extenuating matter could be found in them; but the Committee and not that House, would have been the proper place to have referred to them. What was the defence set up for that charge? Why, that there was political agitation existing at the time in Ireland, and that, therefore, Baron Smith was bound to deliver the charge. He should deal with the fact before he came to the inference. In point of fact it so happened for the preceding fifteen years there never was a period in which there was less agitation than at the time that charge was delivered. The charge was delivered in October, and from the preceding February, not a single meeting had taken place in Ireland. To the right hon. Secretary for Ireland he would appeal for the truth of this statement. The right hon. Secretary was in Ireland for several months before, and could bear him out in that statement. So that the charge was not to put down agitation, but was itself the beginning of agitation. The agitation which had slumbered from the preceding February, was recommenced by Baron Smith's "sounding the tocsin." Now, he would suppose the case to have occurred in England. He would suppose a Judge, in London, presiding at the Old Bailey, who took upon himself the duty of sounding the tocsin, by making a political harangue. 736 Would that be tolerated? Would the House for a moment refuse to grant an inquiry into his conduct? It had been said, indeed, that it was a "special commission at which the charge was delivered, and that it was necessary for the Judge to deliver a political charge at it. He had often heard of special pleading; but grosser special pleading than that he had never heard. "You have approved," it was said to the House, "of political charges made at Special Commissions; but this was a Special Commission, and, therefore, why not approve of this?" More unfounded reasoning could not be attempted to be imposed upon the House. That Commission was appointed to be held six times a-year, and the Judges presided there in their robes, and there was nothing "special" about it, no more than there was in the Recorder's own Commission, where he presided in a King's counsel's gown and wig. At a Special Commission Judges were unquestionably bound to explain the nature of the crimes which had called for the Commission—but, in a regular Commission, such as that at Dublin, with no political crime upon the calendar, what excuse was there for launching into a long and inflammatory dissertation? If the House refused this inquiry, let them look to the monstrous principles it would establish. It would establish the right of Judges at every commission to enter into political dissertations, to deliver lectures upon agitation, to neglect their duty, and say to Grand Juries, "As there is nothing upon the calendar to call for observation, let us talk of the state of the country." That would be really the principle the House would establish. It was the principle contended for by the hon. and learned member for the University of Dublin. It was right in the opinion of that hon. Gentleman for a Judge to dwell upon any topic or every topic but that to which it was his duty to advert; it was quite right for him to spread the seeds of religious animosity, and to halloo Protestant against Catholic, and Catholic against Protestant. That was the learned Gentleman's doctrine. The House had seen in that Gentleman's Address, a specimen of the party which he represented; from which they might judge from what a political thraldom the people of Ireland had escaped. There was—and he regretted it—a party spirit in Ireland, and the House had seen 737 a melancholy specimen of it that evening. But the defeated had a right to be angry. He could not quarrel with the hon. and learned Gentleman when he reflected upon the desperation of his cause. There were two factions in Ireland, directly and mainly opposed to each other. But was it not desirable that justice should be fairly administered between them? Was there, not to be, at least, one spot free from the influence of factious feeling, to which both parties might look for impartial justice? Ought not the Bench, at least, to be free from partiality? And could it for a moment be held that Baron Smith had steered clear of party feeling in the discharge of his duty? Why to such lengths had he gone as even to include Cabinet Ministers in his dissertations. If the House then stultified itself so far as to refuse the inquiry, after having promised it, who could suppose the people would have any confidence in the administration of justice? And the only excuse they could offer to the country for so strange a step, would be that the hon. and learned member for the University of Dublin, who, it would be recollected, was no party man—not at all influenced by any factious prejudice—had made an appeal to the passions of the House which had influenced them to retrace their steps. When speaking of that learned Gentleman he did not at all mean to deny, that he had discharged his official duties efficiently and impartially. He had no personal feeling in depriving the learned gentleman of the merit he deserved, and he could readily pass over his attempts to be severe upon him; for while he was rewarded by the confidence of his countrymen, and that they were pleased to think his exertions were of service, he could afford, in the consciousness of the purity of his own motives, to overlook the attacks made upon him. All he wanted of the House was, to give fair and impartial justice to Ireland; not to suffer the kindly-disposition which was just springing up towards his country to be thus wantonly crushed. He wanted them, in fact, to preserve Ireland from her friends—from such friends as the hon. Baronet, whose acts were at such direct variance with their professions. He wanted the House not to suffer judicial negligence to pass over with impunity. He should conclude where he had commenced, and call upon the House not to extend, in the present case, that impunity which had so long appeared to 738 be the chartered right of a party in Ireland. For a long time the people of Ireland had been accustomed to see this impunity extended even to positive acts of oppression, and it was not till the accession of the present Ministry that they indulged a hope of fair and impartial justice. He implored the House not to destroy the feeling of confidence they had created, and stultify themselves by deliberately rescinding a decision which they had as deliberately formed.
§ Colonel Conollysaid, that he should not presume, at that late hour, to trespass upon the attention of the House, notwithstanding the importance of the question then under discussion, were it not that, having the honour of an intimate acquaintance with Baron Smith, he wished to bear his testimony in favour of the worth, the talent, and the high character of that venerable and estimable person. It was unnecessary for him (Colonol Conolly) to superadd anything to the eloquent and convincing statement made by his hon. friend, the member for the University of Dublin (Mr. Shaw), and to which the House had paid the tribute of its applause; but he could not help remarking that the hon. and learned Gentleman, the member for Dublin, had not attempted, in the course of his speech, to reply to a single argument adduced by his hon. and learned friend. The hon. and learned Gentleman had gone wide of the mark, was evidently writhing under the castigation he had received, and, as was usual with him, who, in fact, could not open his lips but when he indulged in vituperation and scurrility; and charged the learned Judge with being the cause of that party malignity which all his efforts were directed to assuage. [Several Members rose to Order.] Colonel Conolly said, that, seeing the line invariably adopted by the hon. and learned Gentleman, he considered himself authorized in using the term scurrility; but if the House thought the expression too strong he should retract it. He would contend, however, that, instead of arguing the question, the hon. and learned Member for Dublin had gone on asserting, and without adducing a shadow of proof in support of his assertions, that Baron Smith had tried to stir up religious strife in Ireland, and was, in fact, the cause of the party malignity which no man could doubt existed in Ireland, and which all good men must deplore. He must deny, most emphatic- 739 ally, that hon. Members on that side of the House were actuated, in the line they were pursuing, by party or political feeling-, They considered that Baron Smith had been treated with precipitate injustice in the course that had been followed on a former evening, and they now called upon the House to reconsider a decision which, if not reversed, must be fraught with the grossest injustice to the individual, and with the most incalculable mischief to the country. If any man on the Irish Bench—and all the Judges in that country were men of the purest character—if any man,: he would repeat, on the Irish Bench stood freer than another from the charge of political partizanship, it was Baron Smith. He was considered at one time the idol of that party who were now so anxious to inculpate him. He continued their idol until he had the courage to expose the fallacy of the Jesuitical sophistry which was deluding the people of Ireland into a belief that passive resistance to the law was not merely legal, but praiseworthy. When he found Juries intimidated, the laws laid prostrate, and justice a mockery, he raised his warning voice—he addressed his deluded countrymen, not in the language of reproach, but of admonition; and his charges at Maryborough and Mullingar, and which were praised by the Chief Justice, the Attorney General, and even by a Committee of that House, had the effect of inducing Jurors to do their duty; criminals were convicted, the majesty of the law was asserted, and the country tranquillized. And was it for producing such effects that Baron Smith was to be dragged to the Bar of that House? He perfectly agreed with his hon. friend that there was nothing in the present charge, in the least, to inculpate him. There was nothing, in fact, to submit to a Committee—there was nothing, in fact, to inquire into, inasmuch as his Majesty's Ministers had stated, that supposing all the charges preferred by the hon. and learned member for Dublin to be proved, that no case existed to warrant the House in addressing the Crown to remove the learned Judge. What the hon. and learned member for Dublin considered as a crime, entitled Baron Smith, in his apprehension, to the greatest possible praise. And was it to be tolerated, that because he had the courage to denounce agitation—because he pointed out its evil tendency, and did his duty fearlessly by 740 his country and society, that he was to be sacrificed to the very Moloch of agitation? Could any man believe that Baron Smith was the promoter of agitation, and the hon. and learned member for Dublin the promoter of peace and harmony? Yet the hon. and learned Gentleman would have the Mouse believe that such an inversion of facts would enable them to come to a just conclusion. That hon. Member called upon the House not to stultify themselves by reversing a decision come to on a former night; but in his opinion, the House would more completely stultify itself by granting the inquiry. In conclusion he besought hon. Members to pause before they dragged to their Bar a venerable individual, who had, for upwards of thirty years, filled a high judicial situation with credit to himself, and with benefit to society, merely because he denounced everything that was pernicious to his country, and thereby earned for himself the hatred of the agitator and the demagogue.
§ Sir Robert Peelwas convinced, that the House—this being the second night's Debate upon the merits of this subject—must be most anxious to bring the discussion to a close. Before he made any other observations, he would promise, and rigidly adhere to the promise, as he never wished to force himself upon the attention of a reluctant audience, if the House would lend him their attention for a very: short time, to introduce no irrelevant topic, and to steer clear of all considerations of a merely personal or party nature. He considered that the Motion implied a great compliment to the House. It implied a confidence in their integrity and; moral courage, thus to give them the opportunity of revising what they had once determined; and, if they felt that determination to be wrong, to reverse it. Numerous appeals had been made to the House to-night; appeals to false pride; appeals to the sense of shame, and to the fear of ridicule. He knew the force of those appeals, and the obstacles they interposed in the way of retracing the path on which they had once entered; but, he felt confident, if the House should be convinced, that they were placed in a critical and embarrassing situation—if they had reason to believe that the precedent they were about to establish was pregnant with future danger—that the step which they had taken involved an act of injustice 741 towards an individual, and that individual I an aged and venerable Judge—he had I that confidence in the impartiality, the good sense, the moral courage of the House, that he could not doubt that it would revoke a hasty and ill-considered decision. Two charges had been preferred against the learned Judge; and the House had resolved to appoint a Select Committee to consider those charges. Now, let them weigh dispassionately the force of every argument, by which it was attempted to convince them that they ought to adhere to their resolution. The right hon. Gentleman, the Secretary for the Colonies, said, that his main reason for having acceded to, and for now adhering to, the proposition, was, that it was the interest of Baron Smith that the inquiry should be made. "Here are charges," he said, "preferred against a Judge; and why should we not give him an opportunity of disproving them? "Was the House, then, prepared to adopt now—and to act in future upon—that principle? Were they to permit, to invite, as it were, every dissatisfied suitor to bring his charges against a judicial character, and then, because charges were preferred—because, perhaps, they assumed a plausible shape—were they to devote the public time to investigations into their truth, and to diminish the efficiency and value of the services of the Judge, under the pretence that it was his interest that the accusation against him should be inquired into? Ought they not to ask themselves this preliminary question? Was the accusation a grave one? Did it affect the impartiality, the integrity, or the moral character of the Judge?—if proved, would it justify an appeal to the Crown for his removal?
The first charge in this case against Baron Smith was, neglect of duty:—and what was the allegation to sustain it? Why, that this aged Judge sat, in the administration of justice, for eighteen hours together—that, for four days, on an average, he sat not less than fourteen hours a day. Neglect of duty, indeed! Here was a Judge, advanced in years, of health far from robust—entertaining the honest, perhaps the mistaken, impression, that justice and mercy required that the trials of prisoners should not be delayed; he gave up his days and nights—he consumed his strength, and impaired his health in the performance of his high functions—and the result was, that he wag to be tried for neglect of 742 duty! It might be much better to open a Court of Justice at ten o'clock than at half-past twelve: but, before the House determined that there was any primâ facie evidence of neglect on the part of the Judge, they must look a little into the habits of society; they must inquire whether the habits of Counsel in Ireland correspond with those of barristers in this country; whether it were the custom of Counsel to hold their consultations in the evening? Whether they were not, on the contrary, almost uniformly held in the morning? and whether the opening of the Courts ill Ireland, at a later period than in this country, did not arise from the state of society there, and the habits of life of those whose presence was essential to the administration of justice? It was easy to prefer vague charges of neglect of duty. Suppose such a charge were preferred against his Majesty's Ministers; suppose a Member were to rise, and after gravely and justly observing, that the time of Ministers was the property of the people, and that it was not decorous that the petitions of the people should be presented in the absence of Ministers, were to assert, and offer to prove, on unquestionable evidence, that the House sat every day for the reception of petitions, from twelve to three in the afternoon, and that Ministers were never present? Supposing, after thus having preferred his charge of neglect of duty, he should move for a Committee of Inquiry,—would the right hon. Gentleman, the Secretary for the Colonies, think it would be for the interest of Ministers to accede to the Motion?—that it would be consistent with the influence of a Minister in this House, with the dignity of his station and character, that because a plausible primâ facie charge of neglect of duty was preferred, he should be forthwith sent before a Committee of Inquiry to repel the charge, and to account for his absence? If trumpery charges of that kind, involving no moral delinquency, implying no taint of corruption, might be preferred against public functionaries; and if, because they were preferred, the House was bound to appoint Committees of Inquiry—that would be a principle fatal to the discharge of all other public business,—fatal to the efficiency, and degrading to the character, of all public men, whether Ministers or Judges. The hon. and learned Gentleman had. abandoned the 743 official documents which had been laid before the House, and on which alone his original charge was founded, and proposed that he should be allowed to institute a vague and general inquisition into the whole life and practice of this Judge, in the hope that he might discover some new ground of charge. He said, that he could establish the fact, that, for many years past, Baron Smith had been in the habit of opening his Court at a very late hour. Was it fair of the hon. and learned Member, having never made a complaint against this alleged practice, which had prevailed for years—having given no notice to the learned Judge that such a complaint was to be preferred, was it fair to prefer it now? They had been told that Baron Smith had tried prisoners at unseasonable hours. Did not the noble Lord, the Chancellor of the Exchequer, know that in many parts of this country—at Quarter Sessions in particular—criminal trials had been proceeded with, at hours which, without any reason assigned, would, at first sight, appear most unseasonable? In the noble Lord's own county, Northamptonshire, was it not the practice, until very recently, to begin the trials of prisoners at a late hour of the evening, and to continue them till midnight? There might have been, there was, probably, sufficient reason for the practice: but supposing a charge were brought against the noble Lord, and the other Magistrates, on this account, would the House of Commons, there not being the slightest imputation of partiality or of practical injustice, send the noble Lord on his trial before a Select-Committee, merely because such a charge had been preferred? Let them consider the course on which they are invited to enter, and the consequences to which it would lead; let them inquire whether, since the period when the independence of the Judges was established by law, there were any precedents for inquiry into their conduct; and whether, if there were such precedents, they had redounded to the credit of Parliaments. When the House of Lords called Lord Chief Justice Holt before it, to account for his conduct in the Banbury case, for his having in that case delivered a judgment—by which he set aside the jurisdiction of the House of Lords—the Chief Justice did, indeed, appear before the Lords, in compliance with their summons; 744 but what was his answer to the demand that he should account to the Lords for the judgment complained of? 'I hold', 'said he,' an authority independent of yours. I gave my reasons for the judgment I delivered in that place, in which I had sworn to administer justice. By the House of Lords I look to be protected, and not to be arraigned; and I will not assign the reasons on which I founded my judgment'. Did that case differ from the present, in so far as the judicial charge of the Judge was concerned? Might not Baron Smith who delivered his charge, in the conviction that he was honestly performing his judicial duty—might he not demur to the jurisdiction of the House, and deny its right to put him on his trial for a judicial act, on the mere ground that the House differed from him as to the prudence or discretion of that act? The charge of neglect of duty stood on different grounds; and if it were a grave charge—if the proofs of injustice arising from that neglect were numerous and strong—he did not deny the competency of the House to inquire into it; but he denied the wisdom—the prudence—the justice—of arraigning a Judge, unless upon some charge of personal corruption—of gross and grievous neglect of duty, warranting his removal from the Bench. No such neglect was imputed to Baron Smith; and the accusation was frivolous in the extreme. With respect to the other accusation—that founded on the improper matter introduced in the judicial charges of the Judge—how was it possible to deal with it? The express complaint was, that certain charges, delivered by the Judge contained political matter. Yet all admitted, that, under certain circumstances, it was the right and duty of a Judge to introduce political matter into a charge. What, then, were they about to do? Were they to establish a censorship of Judges' charges? Were Judges' charges to be licensed by them, to have the sanction of their imprimatur? Were they about to lay down the precise formulœ to which Judges must adhere, to establish the rules by which the discretion, the good taste, of the Judges must be regulated? Was it on the topics or on the terms of judicial charges, on which their lectures were to be delivered? And were they to be the parties who were to proscribe political matter in judicial charges; they, who printed, at the public expense, the political 745 charge of Baron Smith to the Grand Jury of the Queen's County, who referred to it-in terms of high commendation, who found the Reports of the Committees curtailed, because they were enabled to embody in them the able charges of the Chief Justice and Baron Smith—they who learnt, with satisfaction, that those charges were not, perhaps, directly by the Government, but by Magistrates acting in concurrence with the Government, printed and placarded throughout the country, as useful warnings to the deluded people—with what decency could they institute or countenance an accusation against Baron Smith for having delivered another political charge, not differing in substance or in terms from that which they sanctioned and circulated? The duty of the Committee, if unfortunately it were appointed, would be, of all others, the most difficult. It would have to examine every sentence contained in the Judge's charge, to attempt to make some discrimination between its different parts—to select those deserving of censure, and those deserving of approbation; and when the House should be in possession of the Report of the Committee, in what manner were they to proceed? If the charges were fully proved, would they be a ground sufficient to authorize them to address the Crown for the removal of the Judge? If they had not ground to address the Crown for his removal, was it fitting that they should attach a label of partial infamy round the neck of this high officer of justice, and then send him to administer the Jaw to others? Was there, in truth, any alternative between petitioning for his removal, and leaving his conduct exempt from imputation? If there were no charge against him of partiality, corruption, or ignorance of the law, or serious neglect of duty—if they felt in their heart and conscience, that he must still continue in the administration of his trust—was it not for the public interest that he should stand erect, not only in the consciousness of innocence, but in the possession of the public esteem and respect? To appoint a Committee was evading the law, which required an Address from both Houses of Parliament! to authorize the removal of a Judge; because, if that Judge were a man of honour, I and if the House implied the slightest censure agrainst him, his own sense of propriety would tell him that he could no longer remain effective as a Judge. Again, 746 was it wise, on light ground, to unsheath the powerful weapon of impeachment in trusted to their keeping? Were they not" I blunting its edge by drawing it on trifling and frivolous occasions? Of whom did he ask these questions?—Of those who encouraged Baron Smith to deliver this very charge, by having expressly sanctioned and circulated a former one. Let them read the present charge, and compare it with that printed at the public expense, and with the approbation of the House, and they would not find one expression in the latter that was not as open to censure as the expressions of the charge now complained of. If they disliked quotations, they would find them in plenty; if they disliked irrelevant matter, it was plentiful; if they disliked political matter, the first charge contained nothing else. He had no anxiety in regard to Baron Smith. Let the House take what course it would, he was secure, because he was innocent; and they would but rally round him the esteem and sympathy of all good men. The right hon. Gentleman opposite said, that he expected some expression of regret on the part of the Judge. Baron Smith had no expression of regret to tender. He had such confidence in the conscious innocence of Baron Smith—such confidence in his high spirit—that he felt assured Baron Smith would never seek to avert this charge—he would never demean himself by anything in the shape of an apology. He was far advanced in years; the infirmities of age, increased by those very labours now cited against him in proof of his neglect of duty, might have abated the ardent spirit with which he would once have confronted his accusers, and courted the conflict to which he was summoned—
Lenit albescens animos capillusLitium et rixæ cupidos protervæ.With equal truth, he might exclaim—Non ego hoc ferrem callidus juventâ,Consule Planco.And though the fire of youth might be somewhat damped by years and infirmity, yet, when he felt that in his person was to be fought the battle for the independence of the judicial office, he would be inspired with new energies. Conscious that these accusations were frivolous and unjust—conscious that no public inconvenience, no injustice, had arisen from his devotion to his duty, even at unseasonable hours—conscious, too, that he delivered these 747 political charges, partly from the conviction that he was supporting the cause of order, and advancing the purposes of good Government—partly because he was sanctioned and encouraged by the approbation of Ministers—partly from an honest, a pardonable pride, that the official documents of that House were graced; by the adoption and publication of his judicial labours—conscious of his own rectitude, whatever fate might impend over him—he would meet it without submitting to the voluntary humiliation of an apology. If in other times—if in the unreformed Parliament—if under a Tory Government—if, after Judge Fletcher had delivered his political charge in the county of Wexford—if he, as Secretary for Ireland, had brought forward such an accusation as this—if he had proposed to drag the learned Judge from the Bench before; a Select Committee of that House—what a scene would have been witnessed! Let them tax their imagination so far as this—let them fancy that this was the year 1814—that he stood, as Secretary for Ireland, in his place as a Minister, and that, with Judge Fletcher's charge in his hand, after reading certain passages displeasing to his taste, he had proposed a Select Committee before which the Judge should appear to answer for his errors of judgment, and account for the breach of judicial decorum; then fancy the present Lord Chancellor—fancy Mr. Brougham rising from the place in which he now stood'—fancy, if they could, the indignant terms in which Mr. Brougham would have chastised the arrogant and contemptible folly of that Minister who should have dared to assail the independence of a Judge, by proposing, on such a frivolous charge, to subject him, for a judicial act, to the degrading investigation of a Select Committee! There was a feeling abroad—a feeling that was every day becoming more prevalent—that. those who declaim most loudly about their love of liberty, and speak in the most exaggerated terms of their hatred to oppression, employ those speciosa nomina as the mere instruments by which they may secure their own aggrandisement—that such words are but the ladders of young ambition, to be thrown down when the object to which it aspires is reached. Three days only had elapsed, since a proposition was made within those walls—to a willing audience—for the purpose of establishing, as it 748 was called, the liberty of the Press. It was proposed that the law of written libel should be placed on the same ground with that of oral scandal—that ex-officio informations should be abolished—that truth, in public matters, should no longer constitute a libel. That proposal was accompanied by touching lamentations—that there was now no alternative for a public writer, but to flatter his Majesty's Government, and all those in authority; inasmuch as censure might wound their feelings, and, according to the rigid construction of the law, might constitute a libel. Apply those principles to Judges' charges. Was there to be no liberty of speech for the Judge? Was he to have no option, but that of flattering the Government? Were they, who permitted that Bill to be introduced, to permit the Judge to be placed on his trial without proof of authorship—without evidence of guilty intention—without the allegation that he had said what was untrue? How could they profess to respect liberty of speech, or liberty of discussion, if they instituted that which was ten times more vexatious and oppressive than any ex-officio prosecution, on the mere ex-parte statement of an individual, himself a party in the case. Ought they, on the mere allegation of an individual Member of the House—in the absence of even a petition charging injustice—in the absence of any complaint, either from the accused who were put on their trials, or on the part of Counsel, ought they to summon from Ireland a Judge of the land, far advanced in years—interrupting the performance of his judicial duties, in order—not that he might answer a specific charge, but that the learned Gentleman (his sole accuser) might bait him before a Select Committee, and try to find, by a roving inquisition into his whole judicial career, the matter for a formal charge? And would they, after they had done that, profess a desire to establish the liberty of speech, and to protect the rights of free discussion? One argument which the right hon. Gentleman, the Secretary for the Colonies, brought to bear against Baron Smith, he could not pass over without notice. He said that Baron Smith might have been at liberty to introduce political matters into his charge under certain circumstances, but that here there was no case in the calendar connected with treason or insurrectionary violence—that this was 749 not a Special Commission—and that, therefore, he was not warranted in introducing political matters into his charge. This, then, constituted the gravamen of the accusation against Baron Smith. Now, Judge Fletcher went, not on a Special Commission, but on the usual circuit, to the county of Wexford; and he began his charge, extending over twenty-four pages, in which he discussed every topic connected with the domestic policy of Ireland, in these words,—Gentlemen of the Grand Jury—'It is with sincere pleasure I congratulate you upon the appearance of the state of your county;—I say appearance—because I have no means whatever of knowing anything upon the subject, except from the calendar now before me. In that calendar I find very few numbers indeed—two, or three, or four crimes, of general occurrence in the country; one homicide, which appears to have been committed, certainly with circumstances of atrocity; but, as far as I can collect from the examinations, originating in private malice and individual revenge, and not connected with any of those disturbances, of which we have heard so much, in different parts of the kingdom'. Thus, then, it appeared, that Judge Fletcher—not sent on a Special Commission—seeing no crimes in the calendar connected, in the remotest degree, with political disturbances—delivered that charge to the Grand Jury, which was full of political matter—which commented with the utmost freedom on the acts of the Government and of Parliament, and which was praised in this House by the party then in opposition, but now in Government, as a model for judicial charges. If, then, it had been the practice and habit of the Judges of Ireland to deliver political charges—if they had felt it their duty to adhere to the advice of Lord Bacon, to warn the people against the consequences of agitation—if the late Chief Justice Downes—if the present Chief Justice Bushe—if Judge Day—if Judge Fletcher—had all felt themselves called upon, by a sense of duty, to deliver charges that involved political matter—he implored hon. Gentlemen, before they took such a fatal step, to consider—not whether this charge of Baron Smith's met their approbation, but whether there was any pretence to apply to the House of Lords for their concurrence (and it was 750 indispensable), in an Address to the Crown for the removal of Baron Smith? Let those who most disapproved of political charges—who most condemned particular passages in the charge of Baron Smith—weigh against this error of judgment, (if it be an error) the whole to nor of his judicial career—the high attainments—the integrity—the impartiality, which were all admitted by his accusers. The hon. and learned Gentleman—the chief accuser in this case—had, himself, compared Baron Smith to a diamond of the brightest lustre. But, remember, that in diamonds, the purer the water, the more visible are the slightest specks and flaws—and that so it was with the little indiscretions of those whose character was the most unsullied. On all these grounds—considering that there was no specific charge against the Judge; that the charge, vague and general, as it was, if fully established, could not justify his removal from the Bench; that partial censure, however qualified, must lower and degrade him in the public estimation;—that there was no precedent for the proposed proceeding—that the precedent, if now established, would be full of future evil;—on all these grounds, let the House have the manliness and courage to revoke a decision, hastily and inconsiderately formed—let them refuse to persevere, from the suggestions of false pride and false shame, in a manifest error—and to embitter the few remaining days of a venerable Judge, by listening to a frivolous, a ridiculous, and unfounded accusation.
§ Lord Althorpagreed with the right hon. Baronet, that if, on mature consideration, it should appear that it was not right to persevere in the course already adopted, the House was at full liberty to retrace its steps; but he must, at the same time, say, that it was decided by the House of Commons, on a former evening, that the conduct of this Judge ought to be inquired into, and that decision ought not to be changed without deliberation. With regard to the first accusation, he admitted, that the neglect of duty attributed to Baron Smith in coming into Court late, and sitting late, had been lessened, if not explained away, by the explanation of the hon. and learned member for the University of Dublin. But he thought that the statements which had been made, and allowed to remain uncontradicted, 751 showed that it was not at Armagh, alone that Baron Smith had been in the habit of entering and leaving Court at late hours; and this circumstance, and that, mentioned at Castlepollard, would indicate that Baron Smith had conducted himself on a system which might be characterized as improper. He had heard, that in the case at Castlepollard, the Counsel protested against the trial being continued. The right hon. Baronet alluding to what had been stated by his right hon. friend, to the effect that this question might have been changed in character if any person had been authorized by Baron Smith to make any communication to the House, spoke as if he thought it would be inconsistent with the character of that Judge for him to have so acted. He thought differently; the House having voted an inquiry into certain parts of his conduct, and certain political charges delivered by him, it would have been becoming in that learned Judge to have taken such a step, and have authorized some one to speak for him. It had been said, that the learned Judge was encouraged by his previous charges having been printed by this House, and by the example of former Judges. The right hon. Gentleman had dwelt on this argument; but there was a distinction between a Judge trying political offences, either on a Special Commission or on the ordinary circuit, who might indulge in remarks on political matters, and a Judge who, without any reason whatsoever, uttered a political charge. It might be said that the offence was not one of grave import, and that, in the case of Judge Fletcher, no course such as this was adopted, nor was the question even mooted in the House. If it had been, the expression of opinion would probably have been nearly the same in that case as in this. The right hon. Gentleman had spoken of Judge Holt's case, and would have the House believe that it had no right to interfere; but, if a Judge made a charge which was improper, was he not answerable to Parliament, if called before them? If he were not, the result was simply, that a Judge might make any charge he pleased. The right hon. Gentleman said, that there was no alternative between dismissal and the House taking no notice of this matter. Would it not, then, be a great evil if a Judge were allowed to make any charge, or 752 conduct himself in any manner that he pleased, short of taking a course which would justify an Address for his removal, and yet be liable to no censure? The charge brought was made upon the responsibility of the hon. Member; and if it should, on inquiry, be found frivolous, the Committee should express a strong opinion on that point. But to say, that no inquiry should take place before a Committee, except in such cases as those in which the charges, if established would justify impeachment, was to lay down a rule which could not fail to be most detrimental. The right hon. Gentleman seemed to think that the principles of the law of libel ought to be applied to Judges' charges. The principles of that law ought to be to give as much liberty as possible to political discussion; but, surely, the charge of a Judge ought to be confined within much narrower bounds. He did not, therefore, see any reason for the House to alter its recorded decision on this matter. The statements brought forward were almost precisely the same as were advanced on the former occasion. If the learned Judge had authorized any Member to state that he would not continue to pursue the course which had been complained of, he (Lord Althorp) might not have been disposed to press for the inquiry; but since it appeared, though Mr. Baron Smith had communicated with some hon. Members, he had not authorized them to hold out any hope that he would alter his conduct, he could not consent to the proposal to discharge the order for the appointment of the Committee.
Mr. Halcombenext addressed the House, but the shouts of discordant noises which were kept up without intermission whilst he was speaking, rendered him totally inaudible.
§ The House divided on the original motion, that the Speaker do leave the chair—Ayes 155; Noes 161:—Majority 6.
§ The Resolution, that the order for the Select Committee to inquire respecting the conduct of Mr. Baron Smith be rescinded, was put and agreed to, and the Order discharged.
| List of the NOES. | |
| Arbuthnot, Hon. G. | Acheson, Viscount |
| Agnew, Sir. A. | Anson, Hon. G. |
| Baring, H. | Halford, H. |
| Baring, A. | Harcourt, G. V. |
| Bell, M. | Hughes, W. Hughes |
| Bentinck, Lord G. | Houldsworth, T. |
| Blayney, Hon. C. | Handley, W. F. |
| Burrell, Sir C. | Hardinge, Right Hon. Sir H. |
| Bainbridge, E. T. | |
| Baillie, J. E. | Hayes, Sir E. |
| Brougham, W. | Herries, Rt. Hon. J. C. |
| Bruce, Lord E. | Howard, Hon. Capt. |
| Bruce, C. L. C. | Halcombe, John |
| Buller, J. W. | Johnston, Andrew |
| Bankes, W. J. | Jermyn, Earl |
| Bethell, R. | Irton, Samuel |
| Blandford, Marquis of | Inglis, Sir R. H. |
| Browne, J. | Jones, T. |
| Blackstone, W. J. | Kerrison, Sir Edward |
| Barnard, E. G. | Kerry, Earl of |
| Browne, D. | King, B. |
| Chandos, Marquis of | Knox, Hon. Colonel |
| Chapman, A. | Lyall, G. |
| Curteis, Captain | Lloyd, T. H. |
| Clive, Hon. R. | Lygon, Hon. Colonel |
| Castlereagh, Viscount | Lennox, Lord A. |
| Cole, Viscount | Lincoln, Earl of |
| Conolly, Colonel | Maxwell, Henry |
| Corry, Hon. H. | Marryatt, J. |
| Chaytor, Sir W. | Macnamara, F. |
| Cavendish, Lord | Manners, Lord R. |
| Denison, W. J. | Miles, W. |
| Denison, E. J. | Morpeth, Viscount |
| Dugdale, W. S. | Norreys, Lord |
| Dare, R. H. | Nicholl, John |
| Dykes, F. L. B. | Neeld, Joseph |
| Duffield, T. | Neele, Sir H. B. |
| Darlington, Earl of | Ossulston, Lord |
| Daly, J. | Ormelie, Earl of |
| Evans, G. | Palmer, C. Fysche |
| Ewing, J. | Palmer, Robert |
| Eastnor, Viscount | Pinney, William |
| Egerton, W. G. | Pigot, R. |
| Estcourt, T. G. B. | Pollock, Frederick |
| Ferguson, Sir R. | Pease, Joseph |
| Ferguson, Captain | Parker, Sir Hyde |
| Fremantle, Sir T. F. | Plumptre, J. P. |
| Finch, G. | Philips, Sir G. |
| Forester, Hon. C. | Peel, Rt. Hon. Sir R. |
| Forster, C. | Russell, Charles |
| Fielden, W. | Ryle, John |
| Fitzroy, Lord C. | Robinson, G. R. |
| Frankland, Sir R. | Ross, Charles |
| Fancourt, Major | Ridley, Sir M. |
| Goulburn, Rt. Hon. H. | Rumbold, C. E. |
| Grimston, Viscount | Reid, Sir J. R. |
| Greene, T. | Rice, Hon. T. S. |
| Gladstone, T. | Rickford, William |
| Glynne, Sir S. | Scott, Sir E. D. |
| Graham, Rt. Hon. Sir J. | Sandon, Viscount |
| Gladstone, W. E. | Sanderson, R. |
| Hodgson, John | Stewart, John |
| Hanmer, Colonel | Scarlett, Sir James |
| Hanmer, Sir John | Stewart, P. M. |
| Hope, H. T. | Stanley, Edward |
| Herbert, Hon. S. | Staunton, Sir G. |
| Hotham, Lord | Skipwith, Sir G. |
| Handley, Henry | Somerset, Lord G. |
| Hardy, J. | Spankie, Serjeant |
| Tyrrell, Sir John T. | TELLERS. |
| Tyrrell, Charles | Knatchbull, Sir E. |
| Tennent, J. E. | Shaw, Frederick |
| Talbot, H. Fox | PAIRED OFF. |
| Trevor, Hon. G. R. | Attwood, M. |
| Townshend, Lord C. | Cartwright, W. R. |
| Talbot, James | Duncombe, Hon. W. |
| Tullamore, Lord | Foley, Edward |
| Vernon, Granville H. | Grant, Hon. F. |
| Vernon, Hon. G. J. V. | Gordon, Hon. Captain |
| Vyvyan, Sir R. R. | Henniker, Lord |
| Verney, Sir H. | Humphery, John |
| Villiers, Viscount | Joliffe, Colonel |
| Verner, Colonel | Lennox, Lord W. |
| Williams, T. P. | Lewis, Rt. Hon. T. F. |
| Willoughby, Sir H. | Miller, W. H. |
| Waterpark, Lord | Newark, Viscount |
| Whitmore, T. C. | North, F. |
| Wall, C. B. | Peel, Lieut-Colonel |
| Wood, G. W. | Sharpe, General |
| Young, G. F. | Sinclair, G. |
| Young, J. | Wood, Colonel |
| Yorke, Captain | Wrottesley, Sir John |