§ Mr. Sheil
rose for the purpose of moving, according to notice, for a "Return of all Processes which have issued out of his Majesty's Court of Exchequer in Ireland, in the cause of Knox v. Gavin and others, and of all orders made in the said cause, and all affidavits made therein; also, copies of any order or orders made by his Majesty's Government in the years 1823, 1825, and 1833, respecting the employment of the police in the service and execution of suits, and of the signatures attached to such orders. Hon. Members no doubt had heard something of the cause in question. It was one among others got up by the "Lay Association for defending the property of the Established Church in Ireland." In the first place, let him not be understood as confounding this Association 566 with the society formed in this country for the honourable purpose of relieving the clergy of the Established Church in Ireland from the, distresses and difficulties under which they laboured. The latter society was instituted for a legitimate, praiseworthy object; its principles were those of truly Christian benevolence; whereas the Association formed in Ireland was nothing but a branch of Orangeism, partaking of all the mischief and malevolence of its prototype. ["No."] Hon. Members cried no, but he should be able to prove what he had said; and moreover, that the gallant officer opposite, the Grand Treasurer of the Orange Society, was amongst the leading subscribers to the new institution. He would read from The Standard newspaper the advertisement put forth by the Association, stating who were their trustees, and so forth. At the head of these appeared the name of the Earl of Roden—the coincidence could scarcely be fortuitous—then came the Earl of Enniskillen, then the Earl of Bandon, Lord Farnham, Lord Lorton, &c. &c. He did not see the hon. and gallant Member's name, but there was the name of the gallant officer sitting on his sinister hand (Colonel Verner), as a subscriber of 25l. The Association set forth as its object the lending its assistance to the Irish clergy in the recovery of dues, which he was ready to admit were legal. But this did not prevent the association from being as illicit and reprehensible as ever; at the best, an organ of this kind, was, after all, but a bad substitute for that Legislative measure which every one must own to be indispensable for the adjustment of the tithe question. This was a point conceded by the late Government as well as the present, both agreed that tithes could not be levied and ought not to be levied by force of arms. He would just state the circumstances of the case to which he had referred, and he would then put the question whether the House was to try the character and objects of the society by the course of proceeding which it had already adopted. The reality of these proceedings he was prepared to prove; to prove, not by idle allegations, which some Members opposite might think themselves in a position to contradict, but by the evidence of a court of justice, which could not be contradicted by any man. The first statement he would make was this; since the 1st of August last, there had been filed by this Lay Association not fewer than 6l7 bills on the equity side of the Exchequer. Hon. Members opposite, perhaps, would say, why not? 567 His answer was this: there were two modes of proceeding open to parties in these cases —one cheap, speedy, and efficient; the other, an expensive and most oppressive process. The 617 bills were filed under the latter process, and it was against the adoption of this proceeding, and their mode of carrying it into effect, that he raised his voice. All tithes under 10l. were recoverable by civil process before a Magistrate; but what had this Lay Association done? Filed upwards of 600 Exchequer bills for sums in most cases under 10l., and in some for sums of 1s. 9d. If this were controverted, let them grant him the returns, which would at once establish the glaring and formidable fact. He would state two of the cases in question, which were to be proved by evidence not to be contradicted. These two cases were striking examples of how this frightful litigation had been carried on. The first case to which he would refer was the case of the very rev. Gilbert Holmes v. Hodges. These facts came out in this case—(that the bill was filed by the Lay Association was not disputed) the bill was filed in the name of the rev. Gilbert Holmes, and conducted by Mr. Smith, a lawyer of great talents, solicitor to the Association, who also filed the whole of the other bills set on foot by the society. This gentleman it was not his (Mr. Shell's) intention or wish to mate any charge against, it was the individuals who had recourse to his professional skill that merited condemnation. Now, as to the facts of the case: on the 4th of January last, Mr. Smith wrote to the defendant, demanding the payment of 22.l due by him for tithe; this was put into the post-office on the 5th, and received by the defendant on the 6th; on the 7th the latter called upon the attorney to pay the amount demanded; but what then did Mr. Smith propose? Not only that the defendant should pay the tithe, but in addition the sum of 19l. 9s. 8d., being the amount of costs said to have been incurred up to that time, although the demand upon defendant was only made on the 6th of January, the day previous. Were hon. Members opposite prepared to deny this fact? Was it true? and if true, was it defensible? If the Lay Association had really taken this course, was the system a good one? Having disposed of this first specimen of the society's proceedings, he now came to another case of far greater importance—he meant that of Knox v. Gavin, In going into the details of this 568 case he should have occasion to cite the words of an Act of Parliament, and to allude to other technical phraseology, but he trusted the House would give its attention to these details; it was worth their while to see the whole machinery of the law applied with the most perverse ingenuity to the unhallowed purpose of crushing the unhappy peasantry of Ireland in the dust. The facts of the case, indeed, required no comment: it would be an injustice to intelligent and feeling persons to imagine that facts such as these he brought forward required any comment or illustration from him. He would in the first place recal to the recollection of the House the Act generally called Goulburn's Act, passed 3rd George 4th, one of the chapters of which made it lawful for the Lord-Lieutenant to appoint four inspectors of police in Ireland, and to those inspectors it gave a power to frame rules for the conduct of the police constables, which rules, if approved of by the county Magistrates and by the Lord-lieutenant, were to be transmitted by the Government to the chief constables, and referred to on all occasions as the manual of the policeman's duty. In pursuance of this Act certain orders or regulations were made by the inspectors appointed and approved of by the Magistrates, by the Castle; and by the Government, among the members of which Government were Mr. (then Secretary) Goulburn and Mr. Joy, then Law Adviser of the Crown, now Chief Baron of his Majesty's Court of Exchequer in Ireland. And what were these orders? This was in 1823. One of these regulations, the 6th, directed that "the men shall on no account interfere in the execution of any writ, decree, or court order, or in driving for rent, tithes, or taxes, unless called on by a Magistrate, or the high-sheriff, or sub-sheriff, in person." This was one of the regulations approved of by the right hon. Henry Joy, who now, as Chief Baron of the Irish Exchequer, sanctioned a proceeding directly contravening that order. The same order was re-enacted in 1825, and continued in force. Now let the House see what course was adopted in the case of Knox v. Gavin. The same attorney, Mr. Smith, filed bills in the Court of Exchequer against twenty-two persons, amongst the rest Gavin, the tithes owing by whom amounted to the small sum of 1l. 11s. The proceedings in this case showed the animus of the entire system. The bills having been filed, what course was resorted to? In the month of Decem- 569 ber last Mr. Smith wrote a letter to the noble Secretary for Ireland, stating that he was employed in a great variety of tithe suits, and requesting from his Lordship general directions to the police in reference to his proceeding in these suits. Not receiving an immediate answer from the noble Lord, in a few days Mr. Smith wrote again to him, complaining of an alleged want on his Lordship's part of the courtesy due from one gentleman to another—an imputation which any person acquainted with the noble Secretary well knew could never justly be charged against him. The noble Lord upon this returned an answer, assuring Mr. Smith that no offence had been intended towards him, and stating that the police might be employed in tithe cases where an actual riot was in existence, or about to take place, provided that a Magistrate were present. This did not at all do for the Lay Association; and he must beg the attention of the House to a detail of the extraordinary expedient adopted by the Lay Association for the purpose of setting aside the orders of the inspectors, made in pursuance of an Act of Parliament, and sanctioned by Government, with a view of enforcing the levy of tithes, by the entire police and military force in Ireland. Many Gentlemen in the House were possibly unacquainted with the curious phrase "Commission of rebellion." In England no such thing existed in the Courts either of Exchequer or Chancery: it had long since been abolished. In the Irish. Court of Exchequer, too, the terra had been, as a matter of substantive practice, obsolete for two hundred years past. At the worst it was used merely as a matter of form, being directed to John Doe and Richard Roe as commissioners of rebellion. The Lay Association, however, were not satisfied with taking the commission of rebellion as a mere matter of form, their object was to give it a fearful reality, and they accordingly had a commission of rebellion issued, addressed to a person of the lower class, named Dudley, and calling upon all officers to assist in arresting the rebels. This Dudleys who, though a young man, swore he had been twenty years in office, had no sooner got the commission of rebellion, than he made an attempt to ensnare the police. He applied to Malone, a chief officer of police, and demanded his assistance in putting the commission into effect. Malone at once referred to the order sanctioned by Messrs. Goulburn and Joy, which prohibited the police from interfering 570 in any of these cases, except by the order, and in the presence, of a Magistrate. Upon Dudley's insisting on his compliance, Malone begged to be allowed to consult his superior officer, Major Miller, inspector of police. That officer at once, in obedience to the order, decided that Dudley was not entitled to the assistance of the police. Upon this refusal application was made to the Court of Exchequer for an attachment to issue against the parties for not obeying the Commissioners, and a conditional order was issued. Against this order the Attorney and Solicitor-General appeared in Court to show cause, on the ground that Miller and his sub-ordinate officer had only done their duty. He was not going to enter into the legal merits or demerits of the case in that House, nor was it his intention to throw imputations upon the motives of any one; he only stated facts. It was for the House to draw their inferences from those facts. The Judges present in Court (Baron Pennefather being absent from illness) were, the Lord Chief Baron (the very man who, as law-officer for the Crown, had in 1823 warmly supported the order on which the police officers proceeded), Mr. Baron Foster, and Mr. Baron Smith, who, though he had been absent from illness since the 2nd of November preceding, became fortunately convalescent on the 26th of January, the day on which the cause was tried. He did not cast any imputation upon the learned Judge. The learned Baron had strong political opinions, but no doubt they were conscientious; no doubt but that the zeal he had formerly displayed in a popular cause, he had transferred with equal sincerity to a cause of which it might truly be said that it was not popular. There were several gentlemen of the name of Smith engaged in this trial, all men of high talent; he did not, however, know that Mr. Smith, the attorney, was related to the other two gentlemen. On the trial, as was too often the case in Ireland, a great deal of political controversy took place in Court. The Counsel for the prosecution did not hesitate to charge his Majesty's Government with collusion and unfair practices, to which libels the Counsel on the other side naturally replied with all the spirit and manliness which so distinguished him. The Chief Baron in a judgment, in which it had been thought some extra-judicial observations were mixed up, granted the rule sought for, thus virtually setting aside the order which he had himself sanctioned in 1823, and giving 571 Dudley authority to call in the police to his aid. He would ask the House to consider, with a view to ulterior litigation, in what a state the country was placed by this decision. The whole country was placed at the foot of this Lay Association, with Lord Roden at its head. Already they had subscribed amongst themselves large sums of money. The country was allocated into various districts, watched over through the medium of chosen attorneys. Already had 617 bills been filed, many of them for the most contemptible sums, as the returns made to the House would show. The Lay Association had nothing to do but to file bills, and issue commissions of rebellion, without the authority or even knowledge of the Court, in which the name of some ferocious myrmidon of Orangeism should be inserted, and their object would be gained. Let them insert, for instance, but the flames of men such as burned six houses in a village in Armagh— men who came into a court of justice and rescued prisoners. There was no reason to suppose that such truculent and ferocious men would not be selected and sent down into the disturbed parts of the country to call upon the police and soldiery, excite riots, and drive the whole district into anarchy and bloodshed. The House might judge what would be done from what had been done. The name of Borrisokane would at once suffice to strike the hearts of all who heard it with feelings of horror at the past, and dread for the future. To such scenes the decision of the Irish Court of Exchequer gave a virtual sanction. His object was not to charge criminality against any one, but to put the House in possession of the circumstances, and draw their attention to the scenes of slaughter which had been witnessed at Newcomer, Rathcormac, and Enniskillen. He wished the English people to know the facts. If he had overcharged his statement, let it be corrected. In conclusion, he moved for a return of the number of bills filed in the Court of Exchequer of Ireland for tithes since the 1st of August last, and of the names of the plaintiffs and defendants, and the sums claimed against such defendants respectively: also of all processes which have issued out of his Majesty's Court of Exchequer in Ireland, in the cause of Knox v. Gavin and others, and of all orders issued in the said cause, and all affidavits made therein; also copies of any order or orders made by his Majesty's Government in the years 1828, 1825, and 1833, respecting the employment of the police in the service and execution 572 of writs, and of the expenditure attached to such orders.
§ Mr. Sergeant Jackson
said, that both his hon. and learned Friend, the Member for the University of Dublin (Mr. Lefroy), and himself had cause to complain of the course which the hon. and learned Member for Tipperary had taken on this occasion. The first part of the hon. and learned Gentleman's motion formed the subject matter of a distinct notice, and as he had told them that he would not submit it to the attention of the House without giving them some previous notice of his intention, they clearly had a right to complain of having been taken by surprise. He (Mr. Jackson) had come down to the House that evening expecting to hear the hon. and learned Member for Tipperary move in accordance with the notice on the paper; but he certainly did not anticipate that the hon. and learned Gentleman would have departed from what he had declared to be his intention. Had he been apprised that it was the intention of the hon. and learned Member to introduce any other topic on the present occasion he would have been prepared to meet him. Taken as he was by surprise he was not prepared, but still he would do justice to the Lay Association recently formed in Ireland to aid the clergy in obtaining their legitimate rights by defending them against the attack which the hon. and learned Gentleman had made against them. The hon. and learned Member had made a number of allegations for the purpose of showing that he bad grounds for his motion, not a single one of those allegations he had no hesitation in asserting, was founded in fact. The hon. and learned Gentleman had, it would seem, brought forward the subject of a former notice which he had given for the purpose only of attacking the Lay Association, by stating that it was nothing more than an Orange Association, if that could be a reproach. ["Cheers."] By that cheer he supposed they wished to affirm that it was. He, however, utterly denied the statement. He asserted that the Association was not an Orange society, although he believed no Roman Catholic gentleman belonged to it. It was now the fashion to stigmatise everybody in Ireland who was not of that persuasion. He repeated, that it was now the fashion to stigmatise and render odious every Protestant who refused to submit to the domination of a certain despicable faction in that country.—["No, no."]—He asserted that it was, and that, too, fear- 573 lessly, and without the hazard of contradiction. He admitted that the individuals who formed the Lay Association were Protestant gentlemen, but he most emphatically denied that they were confederated for any illegal or improper purpose. They were associated simply with a view to enforce the law, and not to violate it.— [Mr. Sheil: For the recovery of tithe property.]—Undoubtedly, the Association was formed for the purpose of supporting the law, by aiding those who required its assistance in seeking for that which was their unquestionable right. Tithe property was as much entitled to the protection of the law as any other species of property; but he prayed the House to consider well what the state of Ireland was at the present hour in relation to tithes. An extensive confederation, or rather conspiracy, existed throughout the whole of that country to rob the clergy. The clergy were not only pillaged and plundered to an incredible extent, but they found it utterly impossible to assert their rights; and such, in short, was the universal dread which this conspiracy inspired in the minds of men that even the hon. and learned Member himself had declared that he dared not set himself against it.—[Mr. Sheil: "No, no."]— Why, he had in his hand a letter written by the hon. and learned Gentleman to a Clergyman who had applied to him for payment of an arrear of tithes, in which such a reason was assigned by the hon. and learned Gentleman for his non-compliance with the application. Could it be wondered at that the clergy were driven to the necessity of filing bills for the recovery of their rights, when they found it impossible to obtain from the hon. and learned Gentleman—from a Member of the Legislature'—payment of their dues without the interference of the law? But the House would like to know what the answer was which the hon. and learned Gentleman gave to the clergyman alluded to. He tells him—[Mr. Sheil: Read the whole letter.] —He had not the least objection to hand the letter to the hon. and learned Gentleman. The hon. and learned Gentleman might, if he thought fit, read the whole of it to the House, but he hoped the hon. and learned Gentleman would do him the honour to allow him to exercise his own judgment in selecting and reading from it the passage which struck him as most pertinent to the matter in hand. In other respects he wished it to be understood that 574 this letter was by no means discreditable to the hon. and learned Gentleman. He was not to be dictated to by either the hon. and learned Gentleman, or any other hon. Member on the opposite side of the House, as to the course which he should pursue on this or any other occasion. ["Oh."] He had not presumed to interrupt the hon. and learned Member in the course of his address, and all he required was that the hon. and learned Gentleman should not interrupt him. He should only read so much of the letter of the hon. and learned Gentleman as he thought material to the question now before the House. In this letter the hon. and learned Gentleman said, "You must be aware that, as Member for the county of Tipperary, I am obliged to make my election between the payment of tithes and the loss of my seat." Such was the reason which the hon. and learned Gentleman assigned for refusing to pay the tithes which he owed; but to what a pass had things come when a Member of that House was afraid to discharge a lawful demand because of an atrocious conspiracy of this kind—when his holding his seat depended rather on his compliance with the will of such a confederation than his obedience to the laws. Under these circumstances he should like to know whether any Protestant could see the clergy of the religion which he professed reduced to beggary, in the actual process of starvation, and not come forward to compel those to pay them that which they refused to pay except through the intervention of the laws. The hon. and learned Gentleman had stated as a fact what was altogether untrue. He had said that the Lay Association had filed no fewer than 600 bills for the recovery of tithes. [Mr. Sheil I said 617;] Whether it was 600 or 617, he denied the fact in the most positive terms. The statement was wholly destitute of truth. Although he said this, it was not his intention to oppose the granting of the returns for which the hon. and learned Gentleman sought, but he did wish that in some particulars the scope of those returns should be enlarged. Let the hon. and learned Gentleman prove, if he could, that a sixth or even an eighth part of the number of bills he had stated had been filed. He defied the hon. and learned Gentleman to the proof; and, what was more, he might, without the fear of contradiction, venture to assert that up to the present hour the Lay Association had not aided the tithe 575 suits commenced in the Court of Exchequer beyond the number of from fifty to sixty through the whole realm of Ireland. The hon. and learned Gentleman said, that the number of suits of this description was 6l7, but he (Mr. Jackson) denied that the Lay Association had either filed or caused to be filed a greater number of bills for the recovery of tithes due to the clergy than that which he had already mentioned. Well but, said the hon. and learned Gentleman, there was no necessity for taking such cases into the Court of Exchequer when the Civil Bill Court was open to the parties to the extent of 10l. This was a plausible argument, no doubt; but he should be glad to know how claims in respect to tithes could be enforced by an inferior tribunal. They were all aware, or had, at all events, heard, of the manner in which process servers were treated when they attempted to carry the law into execution. He had been concerned in several cases in which the unfortunate process server had encountered violence and outrage of the worst kind. In one, the Sergeant-at-Mace of Youghal went some short distance from that town to serve process on a tithe defaulter. The instant he effected the service the defendant rushed out upon him with a pitchfork. The whole country was raised, and the unfortunate man was speedily felled to the ground, and beaten in the most brutal manner. Thinking they had dispatched him, his assailants left him to all appearance dead; but after some time he so far recovered as to be able to crawl to a neighbouring house, where he hoped to find protection; but on asking for a little water the female who opened the door saluted him with a blow of a pair of tongs which she had in her hand. These were facts which did not depend on mere report, but had been verified by affidavit. He then, as well as he was able, made his way to another house, but although there he received the draught of water for which he asked, the door was shut in his face. He should have been prepared to cite other instances of a similar kind had he known that the hon. and learned Gentleman meant to bring the first part of his motion forward without notice; but, as be had already said he was taken by surprise, he was not prepared to advance facts which he should otherwise have been able to adduce. He could, however, satisfy any man, that the clergy could not obtain their rights through the instrumentality of an inferior jurisdiction, and although it was charged against 576 them as a crime, they had no alternative left but to resort to the Court of Exchequer. The hon. and learned Gentleman stated, that Mr. Smith was the attorney of the Lay Association, and he charged that Gentleman with—[Mr. Shiel made no charge against Mr. Smith, and meant to make none.] Well, but the hon. and learned Gentleman said, that Mr. Smith was the attorney of the Lay Association. This statement was just as void of foundation as the other allegations which the hon. and learned Gentleman had made. Mr. Smith neither was nor ever bad been the solicitor of the Lay Association, but that Association had a solicitor, not, however, for the purpose of originating suits, but seeing that assistance was given in no case that did not merit interference, and that the proceedings were properly conducted. Mr. Richard Open, a gentleman of high character in the profession, was the solicitor of the Association, and his duty was rather to prevent oppression than to cause it. It was not the wish of the Lay Association that the poor should be attacked, or that suits should be commenced for other than substantial sums, or against any persons who put themselves forward as ringleaders in resisting the payment of tithes. He would admit that they preferred instituting proceedings against persons in opulent circumstances—Members, for instance, of that House, or Magistrates—they preferred taking men of station for the purpose of enforcing obedience to the law to any other persons, because such parties were bound not to set the law at defiance, and create rebellion; but to show a good example by their conduct to the country at large. It was a well known fact that the Irish people had had pointed out to them all the subterfuges and stratagems by which the payment of tithes could be resisted, and one hon. and learned Gentleman had gone the length of advising the wallopping away of those who might attempt to execute process for tithe. Now, he-asked, were such things to be endured by a British House of Commons; or whether men were to be branded with infamy merely because they had confederated together peaceably and legally for the purpose of enforcing a just right? The hon. and learned Gentleman also said, that in the case of Holmes and Hodges costs had been accumulated to an extraordinary amount, not by Mr. Smith, but by the Lay Association. But would the hon. and learned Gentleman have the hardihood to assert that the Lay Association had any concern whatever 577 with that case, either directly or indirectly? He called on the hon. and learned Gentleman to make such an assertion if he dared. He (Mr. Sergeant Jackson) verily believed that the Lay Association never even heard of the case; at least he, who was a member of it, and had attended its meetings, never had. If it were a crime to belong to such an Association he was willing to take the whole burthen of it on himself; but, so far from thinking the object which it had in view criminal, he considered that object so meritorious that he should do all in his power to promote the utility of the Association. As it was not his intention to object to the motion, all he hoped was, that the hon. and learned Gentleman would have rendered the returns more comprehensive—that he would have ascertained not only how many suits had been brought —how many demands had been paid in consequence—what amount of costs had been incurred, but how many decrees had been pronounced, and what the number of bills was that had been dismissed on the hearing. As the hon. Gentleman had not done that, he would propose that addition to the hon. and learned Gentleman's motion. He asked this to show whether the suits which had been commenced were well or ill founded, and whether they had not been rendered necessary by the system of terror which prevailed, and prevented parties from paying tithes without the intervention of the law? The fact was, that in a large number of cases the demand had been already settled, and that many who had refused to pay tithe, had done so under a system of terror, and they were glad of an excuse to make the payment, and to be let off without the costs; and he believed there were many instances in which this accommodation was afforded them. The proceedings were properly managed, without any view to expense or oppression. The hon. and learned Gentleman had next passed on to another subject involving the character of the Lay Association, but not at all intending to inculpate the Barons of the Exchequer. The hon. and learned Gentleman did not mean to insinuate any thing to their disadvantage, and yet it did strike him (Mr. Jackson) as rather strange that the hon. and learned Gentleman should have been so emphatic in his remarks upon the circumstance, that the Chief Baron happened to be Attorney or Solicitor-General at the time when the rule was made, founded upon the Act of the 3rd of George 4th, and that, nevertheless, he should have 578 decided with the other Barons of the Exchequer who presided, against the view of the law which the hon. and learned Gentleman took. The question was now, he understood, the subject of appeal, and it would be seen hereafter whether the decision of the Court of Exchequer in Ireland was proper or otherwise. But the hon. and learned Gentleman thought it strange, forsooth, that the Barons of the Exchequer should rule a case contrary to what he conceived to be the construction of a rule acted upon by the Government of the day, when the present learned Chief Baron was a law-officer of the Crown. He likewise insinuated it was very extraordinary that, whereas Baron Smith had been confined by illness from the 2nd of November to the 26th of January, he suddenly came to the Court of Exchequer on that day to hear that cause. Now he was extremely glad the hon. and learned Gentleman had disclaimed the intention of casting any imputation upon those eminent and learned persons; but if the hon. and learned Gentleman had not uttered that disclaimer, his remarks would have appeared to him (Mr. Jackson), and to those around him, as if intended purposely to convey some insinuations. He was not there to vindicate the Chief Baron, or Baron Smith, or Baron Foster. Their characters were far above any advocacy of his. He was satisfied that the British public, as well as the Irish public, knew the characters of those men, and knew that they were utterly incapable of being swayed by any motive but an anxious desire to discharge their sworn duties conscientiously and faithfully. But was the hon. and learned Gentleman certain that the hon. Baron had come down to court for the first time after his illness to preside in the case of Knox v. Gavin? He believed the learned Gentleman would find himself mistaken in that as in all his other statements. With respect to the law of the case of Knox and Gavin, he ventured to say" no two lawyers could differ. Was it contended that, by the rule which had been referred to, a dispensing power was given to the Lord-lieutenant—much less to an inspector of police, a power to dispense with the common law of the land? Was it contended that the jurisdiction of one of the King's superior Courts, the Court of Exchequer, was to be ousted by such means? The Act in question said, that it was competent for the inspector of police to frame regulations for the management of the police, and for the guidance of their con- 579 duct; and that these regulations, when approved of by the Lord-lieutenant and Magistrates of the county, became the rules to which the constabulary force should conform: but they were intended merely for the regulation of the internal economy of the police—the use of their arms, the care of their horses, the general regulation of their conduct, and such matters. The rule is (for the police) not to interfere—that is, they were not to volunteer to do so. The rule says, unless called upon by a Magistrate to do so. He (Mr. Sergeant Jackson) would put it to the common sense of any man whether it could be otherwise? [Hear, from Mr. O'Connell.] The hon. and learned Gentleman cries "hear"—let him controvert the proposition if he can. He (Mr. Sergeant Jackson) was not afraid to meet him—he would not say merely before a court of justice, but in the presence of the Members of the profession of the law in that House, or even before Members possessing common sense, though not professional men; and he would ask, whether it was in accordance with common sense to invest the Magistrates of the county with power to cause process to be executed, and and yet to oust the jurisdiction, and nullify the King's writ issuing forth of his Court of Exchequer? But then the hon. and learned Member said that the writ of rebellion was abolished in England. Now, that was a statement that was not founded in fact; and he must say, that he thought it was rather inexcusable in the hon. and learned Member to make that statement, because, as a member of the profession, he ought to have known that the issuing of a writ of rebellion, so far from being obsolete, had never been disused in Ireland. Before the Lay Association was formed, in 1834, one of these writs was issued from the Court of Exchequer in Ireland, and the party was brought up in custody. But then, said the hon. and learned Gentleman, the writ had been abolished in England, He (Mr. Jackson) begged to inform him that he was utterly mistaken. True it was, that it had been recommended by certain Commissioners that the practice should be abolished; but the recommendation had never been acted upon. It did so happen he could show that the practice existed to this day in England., because no longer ago than when Lord Brougham was Chancellor (and it could not be said that his Lordship was obsolete), a person was brought before him in the Court of Chancery, under a Commission of rebellion. 580 The case was one of some encroachment on an oyster bank; and Lord Brougham, when called upon to discharge the party, said he could not interfere. This occurred so recently as when Lord Brougham was Chancellor, and therefore to say that the process was obsolete was contrary to the fact; and to say that it was abolished in England was equally so. He (Mr. Jackson) would go the length of saving, that even if the issuing of a writ of this description had slumbered for 200 years, the present state of things in Ireland required it should be revived.—Let hon. Members look to what had existed and to what did exist in Ireland, and let them then say whether it was not the bounden duty of the Court of Exchequer to carry the powers with which it was invested into full force and effect. The law must not be put down. It must be upheld, and, please God, it should be upheld and obeyed. He (Mr. Jackson) would not believe that any hon. Gentlemen, whether Whigs, Tories, or Radicals, could be of opinion that the laws of the land should be openly defied and set at nought with impunity—such an extremity of absurdity had not yet been arrived at, that the people of England would stand by and see the laws trampled under foot. Sure he was, that the people of England had not gone thus far, and he trusted they never would. I go even further still—I say, that if this writ had never existed, it would have been the duty of the Judges of the Court of Exchequer to have devised writs and invented processes to have met this emergency. The hon. and learned Member would find, that whenever cases had occurred of a declared and determined intention to set the process of the Courts at defiance, the Judges had always devised writs to meet and prevent such contempt of their authority. This was done in the reign of Queen Elizabeth, when writs of sequestration were first invented- The hon. and learned Member concluded by expressing his gratitude to the House for the great attention with which it had listened to his remarks, and by stating that, if the hon. and learned Member had moved for these returns without making any observations, he should not have offered the slightest objection to the production of them; but the hon. and learned Gentleman had thought fit to preface his motion by what he was pleased to call a statement of facts, and that statement had compelled him to show that what the hon. and learned Gentleman called facts had no existence, 581 save in the fertile imagination of the hon. and learned Gentleman. The hon. and learned Gentleman moved as an amendment to the first part of the motion, that the return should state not only the number of tithe bills which had been filed in the Court of Exchequer, but the cases in which the defendants had paid the demands either in the whole or in part, together with the number of cases heard, and bills which had been dismissed in hearing.
§ Mr. O'Loghlen
said, the hon. and learned Gentleman opposite must be aware, from his knowledge and practice in the Court of Equity, that no bill filed since the 1st of August in the Court of Exchequer could have come now to a hearing, nor, of course, could any bill be discussed up to this period. The hon. and learned Gentleman having obtained the return he moved for, and it appearing that a certain number were not dismissed, would probably argue that all the cases not dismissed had been well founded. He thought it his duty to give this explanation in order to put the House on its guard against such an inference.
§ Mr. Sergeant Jackson
always differed from the hon. and learned Gentleman opposite with great reluctance; but he was much mistaken if he was not present himself when there was a decree of sequestration in many of these cases.
§ Mr. O'Loghlen
begged to assure the hon. and learned Gentleman that he was not present at any one decree. He must remember, if he would just recollect himself for a moment, that not one of the defendants would be required to answer till January, and then there was a long stage between the answer and the decree. There were two or three stages between the answer and the sequestration. The return might be amended so as to give a list of the various bills filed from the 1st of August, 1834, to the 1st of August, 1835, and of the decrees of sequestration down to the present time.
§ Amendment agreed to, and the amended motion was put.582
I shall not trespass long upon the House; but I feel called upon by the very triumphant tone in which the hon. and learned Gentleman has challenged me upon the point of law, totally to disclaim his law. I feel morally convinced that he is entirely mistaken in that law. I do not rise to arraign it as a fault in the Protestant clergy, that they have been filing a great number of bills, by the aid of a thing called the Lay Association; but to show what an irrational cause for a triumph has been claimed over the hon. and learned Member for Tipperary, that he did not exactly know by whose direct instrumentality the Lay Association worked, or how many of those suits had been volunteered by the clergy themselves. I do not think that the hon. Member was very culpable in not knowing the one or the other, nor why there should have been such a vehement thumping of the box, because he happened not to be aware of it. I do not know in what of all this consisted the triumph. There are truisms which may be bawled out until they crack the ears of the listeners. It is quite true that we should carry the law into effect. I do not know of any man who will now gravely stand up in any assembly, and say, that the law ought not to be executed. All these things were perfectly true; but the question is, will they apply to the matter before us? Some, indeed, may regret that the Protestant clergy have no better manner of converting their parishioners, than first by going to law and then to war with them. The process of conversion is now 614 bills in equity and a writ of rebellion. This certainly must reconcile the people of that country to the religion of those clergymen; and this is the cause of triumph, to make them thus levy their dues, of which the hon. and learned Gentleman opposite has boasted. Now, if the Lay Association, instead of combining to carry on vexatious proceedings against the community, had subscribed money to pay and support the Protestant clergy out of their own pockets, their act might have met with the approbation of every human being. Surely the subscription to such a fund has been praised by everyone who has heard of it; and the act of those who have generously supported the clergymen in. whose doctrines they believe, has been universally approved of. I had imagined, when I was at the bar, that it was taken to be undoubtedly the law, that five or six persons combining together to carry on law suits, were doing an act which was not approved of 583 by law—nay, that any men, or set of men, uniting to carry on what might be the most justifiable claims, were doing that which was punishable by law. That was the law when I was at the bar, and there are persons now to praise such an act! Instead of "maintenance," when I was at the bar, being most laudable, it was condemned, and yet there are now present persons to laud if, and learned Counsellors to boast of it. There is no other topic upon which I would wish to address the House, but for the triumph claimed, in the dignified manner that it was claimed, over my hon. and learned Friend. I never knew, Sir, until this evening, that the Court of Exchequer was a Criminal Court. I did not know until now, that those who sat on the Judicial Bench had a right to exercise all the powers of the Executive; but I have now to learn from his Majesty's Attorney-General for Ireland, whether by a writ of rebellion the Court of Exchequer can take the command of the military and police force in Ireland. Triumphant as has been the manner of the hon. and learned Member opposite, I do say, that the very contrary position was laid down by Chief Baron Joy, when he was Attorney-General for Ireland; and I do believe that that very opinion is to be found in his own handwriting, with the date and the very time at which it was delivered. I do believe it will be so found by the noble Lord who represents the Government of Ireland. If he should feel it to be his duty to call for the opinion of the Attorney-General Joy, he will find that opinion in direct opposition to the judgment of Chief Baron Joy. I have no more doubt of this than I have of any own existence. I defy the hon. and learned Gentleman opposite to contradict me. The Court of Exchequer has Judicial powers; but it has not jurisdiction over the police. There has been a talk of inferior Magistrates having power over the police, and not the Court of Exchequer. The Magistrates take out the police, because the warrants must be obeyed, Now, the Court of Exchequer does not go out with the police; nor does it appoint any one to do so, except a process-server, who is certainly not the most respectable character in society, A common process-server is to take the command of the police? Is that the hon. and learned Gentleman's law? And what is material too, upon this point, the person is named, not by the Court of Exchequer, but by the plaintiff. He is named in the office where the writ is issued, and without 584 the Court's interference at all; then the plaintiff can name the lowest person in the community. The hon. and learned Gentleman's law is, that the plaintiff can name the greatest vagabond, or the worthiest person, he chooses—for he is perfectly free in his selection—and such a person can take out the entire police and military; for if the police are bound to go out, so are the military also. And when hon. and learned Gentlemen talk of the jurisdiction of the Court of Exchequer, what is its jurisdiction if a murder is committed?—if high treason is committed, what is its jurisdiction? The Court has not the least jurisdiction. And yet the Court that has no jurisdiction in such cases is now to revive a writ of rebellion, and under a paltry pretext, seek to confer such power through means of an obsolete instrument. I, for one, will speak out—I arraign that decision—I say that it was a political decision. I say it was a Lay Association decision. They who made it were parties with the Lay Association, and by an obsolete process they assumed to themselves, in order to spite the Executive, an authority over the police force, which is most formidable to the entire liberty of every British subject should it not be restrained. If it be true (and I should be glad to find whether I am correct or not) that the Chief Baron when at the bar advised Government not to allow the police to be taken out to serve civil process, then I arraign this as a political decision. Then we have, too, the knowledge of Baron Smith, who was sick on the 2nd November, being again the 26th January able to go into Court—I hope he was really well. [Cheers from the Opposition.] What harm is there then in my saying, that I hope he really was well? But, if an imputation be cast upon him, let the fact speak for him. He was sick for two months before, but able to preside at the trial of Mr. Reynolds. I understand the fact to be, that the learned Baron was not in Court from the trial of Reynolds until the decision was given on the writs of rebellion, on the 26th January. And yet hon. Gentlemen opposite seem not to be pleased with me, when I say, that I am sorry Baron Smith was not better. But is it now to be heard of in the British dominions, that a Court of Equity—an inferior class of a Court of Equity—invented for the purpose of collecting the rents due to the Crown, and acting under the fiction, that debts claimed to be due are due to the King; and yet, is it to be said, 585 that a Court of this kind, which is merely-civil in its nature, and. without any criminal jurisdiction, should, by a fiction of law, assume such powers? Centuries ago it was decided that Courts should not invent new writs. I am astonished where the hon. and learned Gentleman has left his law. Such a power it has over and over been decided that Courts should not assume —it has been taken away since, about the time of Magna Charta. [Laughter from the Opposition (in which Colonel Perceval we believe) was distinguished.] Why, the hon. and gallant Colonel (Colonel Perceval) actually imagines, he is so deluded as to suppose, that he knows something of the matter. Writs are at certain times allowed to be made; and the officers of the Court can accommodate writs to particular purposes; but are we now to be told, that a Court of Exchequer is to invent a writ to effect a particular object; and this to be declared to us with all the triumph of boxing the table, and responded to with cheers, as if their opponents were hunting after Whiteboys, or shooting down the non-payers of tithes. Why, I say, there will be some pretence for these heroics, if the Government will give in to the fancies of Chief Baron Joy, Baron Smith, without calculating upon their aide-de-camp, Baron Foster. Until the King's Government advocate a feigned process like this, I shall be of opinion that the Court of Exchequer has no criminal jurisdiction—that it has no power over the police—no power over the military—and that this writ of rebellion has been obtained and granted, rot as a remedy, but for vengeance.
was not surprised to hear the hon. and learned Gentleman arraign the Court of Exchequer. There was no, respectable body in the empire which, he believed, had not at one time or the other been the object of the hon. and learned Gentleman's invective. Some time since he believed the hon. Gentleman had arraigned some of the Members of his majesty's present Government. He did not rise to enter into the subject at large. He was perfectly satisfied by the manner in which his hon. and learned Friend had discharged his duty, find he should feel that he would but weaken the impression produced by his hon. and learned Friend's excellent speech were he to go at length into the subject. He certainly felt surprised to see any Member of the legal profession Stand up in his place to arraign the power of the Exchequer to issue writs in the cases 586 referred to. With respect to the jurisdiction of the Court of Exchequer, he would quote a high authority on that part of the subject. The hon. and learned Member read an extract from a Law-book, establishing the jurisdiction of that Court in the issue of such writs as had been referred to. This writ of rebellion was not an ordinary proceeding he was free to admit, but would the hon. and learned Gentleman deny that from the foundation of the Court of Exchequer, this writ had been a portion of its process? The Court, on the failure of the primary proceeding, exercised the right of issuing a writ of rebellion, directed to the parties named in the mandate of the writ, and calling on all police officers and all other persons to be assisting against those guilty of the contumely of resisting the first writ. Every Magistrate was bound to be assisting in the execution of this writ. The Sheriff of the county was bound to assist in its execution, and every subject of the King was called on to be aiding and assisting. The Court having issued its original process when the party stood out against the minor process, why should not the Court exercise the privilege of proceeding to a final remedy? Why should not the Court in such a case have the right to call all the parties into Court? Could any man contend, that the law should be fruitless, and the power of the Court be at an end, as would be the case if this right were refused to it? He was surprised how this course should have been taken. He was surprised to hear in Parliament the authority of the Courts of Justice denied, and their proceedings cavilled at. If the power of the Courts to vindicate the law was to be interfered with where was the protection for the safety of society, for the liberty of individuals, or for the rights of the subject. He was surprised to hear such an argument. The hon. and learned Member for Dublin had talked as if this proceeding was a revival of an obsolete practice. But it was no such thing. He had had thirty-five years' experience at the Bar, and he had always known that when the Courts Lad had their authority set at defiance, they had resorted to the most effectual means in their possession to vindicate their authority. When defiance was hurled at the law, and when civil rights were invaded, it was right that the law should put all its energy forth in its own vindication, for the maintenance of its own dignity and the protection of those rights. The jurisdiction of the Court of Exchequer 587 required this vindication. This authority had been set at naught, and it was its right, and., more than that, it was its duty, to vindicate its authority in the most powerful manner. Great reliance seemed to be placed at the other side upon opinions or advice which had been given to a former Government by the present Chief Baron of the Exchequer when Attorney-General. What did that advice amount to? Why, simply this, that it was not advisable to employ the police force in civil process; but if any case should arise demanding the interference of a Magistrate, the police were then to be called on to interfere. He did not think that this power had been exercised unless where the original process of the Court had been contemned, and he certainly could not conceive, that any blame could attach to the Court of Exchequer for attempting to vindicate its own authority. It had been contended on the other side, that, the power of calling into assistance the police force was not to be exercised unless by the interference and under the control of a Magistrate. But, notwithstanding all that had been attempted to be contended to the contrary, he never could persuade himself that a power would be given to a subsidiary Magistrate which would be denied to one of the high Courts of the country. He would repeat that if this power of calling the police force into exertion for the vindication of the law were placed in the hands of an inferior Magistrate, why should not such power be placed; or why should such power be withheld, when one of the highest Courts in the collection of the King's revenue called for assistance in the execution of its processes, and in the vindication of its authority. He trusted, that it would fully appear to the House that in any proceeding which had taken place, the Court of Exchequer had in no way exceeded its authority, or outstripped the bounds of its jurisdiction; and he felt satisfied, that he would encounter little difference of opinion when he expressed an expectation that the House would concur with him in thinking that in any portion of his judicial conduct respecting the transactions in debate, the learned and eminent person who was Chief Baron of the Exchequer had in no way acted in-consistently with those opinions on which so much argument had been founded as having been expressed by that learned person when he was Attorney-General. In this conviction, he would not offer any further observations.
§ Mr. Sergeant O'Loghlen
stated, that 588 having been appealed to by the hon. and learned Gentleman (Mr. Lefroy), he could not allow the debate to close without offering a few observations to the House. He did not deny that the practice of issuing writs of rebellion existed; but then he would say that even in the Court of Exchequer in Ireland, a person writing against the practice of that Court, so long back as the year 1770, called it even then an obsolete process. The Court of Chancery in Ireland had abolished it. Though he admitted the existence of the process in the Court of Exchequer, he did not know of its being executed but in one or two instances. He stated this as a fact which could not be contradicted, that in any report of any law case there could not be found a precedent for such an order as the Court of Exchequer made in the case then under consideration. It was not the mere issuing of a writ, and the arresting of a party, that the public had a right to complain of; but it was this—that the Court of Exchequer had not merely ordered it to be executed, but it had taken upon itself to commit two individuals who had declined to take part in the execution of that writ—one of those persons living at a distance of eighty miles from where the other was called upon to assist in its execution. The question was not as to the issuing of the writ, but whether that House was prepared to sanction a Court in declaring this:—that it would attach for contempt every man who refused a bailiff named by the plaintiff, to go and assist him at any time, and under any circumstances, to execute this writ. This was a question which affected the liberty of every individual; because if it were to be held that the police constables were to be attached for not obeying the summons of a Commissioner in a writ of rebellion, there was no person in the community safe—nay, the Chief Baron himself might be attached for similar conduct. The police in Ireland, as the House knew from a discussion which took place in an early part of the evening, owed their origin to an Act passed in the year 1822. That body of police now consisted of upwards of 7,000 men. The expenses of supporting them was defrayed half out of the consolidated fund, and the other half was paid by a tax levied in the different counties in which they were employed. Under the Act of Parliament, the Lord-Lieutenant of Ireland had the power of framing 589 rules and regulations, not merely as regarded the internal regulations of the police, but stating precisely what the duties were which the constables had to perform. In 1823, shortly after the passing of the Act, rules were framed pursuant to this power, and the Lord Chief Baron, who was then Solicitor-General, admitted in Court, when he was pressed upon the subject, that he had framed the rule which had been mentioned by the hon. Member for Tipperary, and in that rule it was distinctly laid down that the police were not to interfere in the execution of civil process, unless called upon by a Magistrate, or the Sheriff in person. In 1823 this rule was framed by the Chief Baron. A question arose, both between the Sheriffs and Magistrates and the Government upon this subject. The Sheriffs insisted that the police should aid them in the execution of these writs. The Government, however, insisted that the police constable was only to be a preserver of the public peace. In 1823, the Government having been applied to for the aid of the police in the execution of tithe-warrants, the Chief Baron gave this opinion:—"It might be right to advert to the impropriety of employing the police to assist in the execution of tithe warrants—the interference of that body in assisting in the first instance in the execution of civil process being most improper," [Cheers from the Opposition Members.] Hon. Gentlemen had better reserve their cheers; he would presently state facts which would show that they had not much cause for cheering. This opinion proceeded;'—"If any breach of the peace is committed by resistance to civil process, then, and not till then, can the interference of the police be warranted, and this for the purpose of apprehending the offenders." The Lord Chief Baron then advised that the police should only interfere after a breach of the peace, and even then but for the purpose of apprehending the offenders. In 1823 the Sheriff of Limerick called for the aid of the police in the execution of civil process; and, when they considered this case, the facts of which he would state presently, he would ask, could any person contend that when assistance was refused to the Sheriff, it should be given to a bailiff named by the plaintiff—that the first and most responsible officer should be refused, and that every person named in this obsolete writ, no matter who he 590 was, should have such aid? If the police went out under the Orders of a Magistrate, the law protected them as long as they acted under the orders of that Magistrate; they all knew, from sad experience, what unhappy conflicts had taken place when they had been so called out; and would it now be said that it was the duty of the Government to allow the police to go without a Magistrate or a Sheriff with any person, no matter what his situation in life might be, unknown, irresponsible, the mere bailiff of the plaintiff; that under the orders "of such persons they were to break open doors by day or by night, and arrest any person whom their Commission might point out? Would the House sanction any such doctrine when it recollected the numerous conflicts between the police and the people, even when the former were acting under the orders of the known and responsible authorities? He said, that in 1823 the Sheriff of Limerick applied for aid, and this was the answer given:—I have to acknowledge the receipt of your letter of the 14th instant, and having, by the Lord-Lieutenant's desire, consulted the law adviser of the Crown, I am to acquaint you that he is of opinion that, except in a case of actual breach of the peace, the police cannot be employed by you in the capacity of Sheriff.The Sheriff, not satisfied with this answer, inclosed a copy of the opinions of Mr. Saurin and Mr. Pennefather, stating that they considered the police could be taken out as part of the power of the county, and requested that the opinion of the law officers of the Crown should be taken with reference to those opinions. He stated that his county was under the Peace Preservation, as well as the Insurrection Act; and that he could not, without imminent danger of life, attempt to execute the King's writs. This was the application of a Sheriff; and he would read now the answer of the Solicitor-General Joy; he was warranted in calling it so, for the original was in his handwriting:—December 24th, 1824.SIR,—I have received and laid before the Lord Lieutenant your letter of the 19lh inst., soliciting the aid of the police in the execution of writs, and I am to acquaint you that it is no part of the duty of the constables under the 3d Geo. IV., c. 103, to assist in executing such writs, and his Excellency, therefore, cannot give the order which you require; but if the persons properly authorised to execute 591 them are obstructed or resisted in the execution of that duty, the constables will be bound, on informations as to the circumstances being sworn before a Magistrate, to apprehend the persons concerned in such, obstruction or resistance, for the purpose of bringing them to punishment.This letter appeared to be signed by the Under Secretary for Ireland, To it was appended this:—The new constables are to be employed in arresting any of the persons who can be sworn to have been guilty of the attack on the Sheriff". As to assisting the Sheriff to execute civil process, they are not to be called on except as part of the posse comitatus, from which service they are not exempt.January 24, 1825.The Magistrates and Sheriffs were not satisfied with this, and the case was laid before the Attorney-General and the Solicitor-General. The opinion given by them was:—We have already, on full consideration, given our opinion, that the proper duty of the constables appointed under the new Act is to act in the execution of Magistrates' warrants in cases only where a breach of the peace is committed; in all other cases, the Magistrates are at liberty to proceed as they have hitherto done, the power of appointing constables for such other purposes remaining unaffected by the late Act, The Magistrates, therefore, will direct their warrants as usual, but should not deliver them for execution to the new constables.W. C. PLUNKETT.August, 1824." "HY JOY.This was in 1824, and, in that year, such was the opinion given by the present Lord Chancellor and the present Lord Chief Baron. In 1824 another application for assistance was made, and this answer was also returned under the direction of the Chief Baron:—I have had the honour of receiving, and submitting to the Lord Lieutenant, your letter of the 29th ult., representing, by desire of the Justices of the Peace acting in the barony of Clanwilliam north, and county of Limerick, the difficulty in which they are placed in consequence of the police not being employed to execute warrants for the recovery of tithe. I am directed by his Excellency to inform you that, alter the most mature and repeated consideration of the subject, it is considered, that the employment of the police, in the first instance, in the execution of civil process, would lend mainly to defeat the great object of, their institution; but, that if any breach of the pence should be committed in resisting civil process, the employment pf the police to ap- 592 prehend the offenders would be quite consistent with the purpose for which they were established; and would be highly proper.He had to state now, that another application was made by the Sub-sheriff of the county Clare, who applied to the High Constable Watkins, to give him some mounted police to assist in the service of writs. He would refer presently to the answer then given by the then Secretary for Ireland, who was, subsequently, the Chancellor of the Exchequer. "The application to the chief constable is reported by him in the following letter:—Sir,—I have to report the conduct of Mr. Benjamin Green, Sub-sheriff of this county: this day he had' three mounted men out executing a warrant, and on his return said to Serjeant Ryalls that he would require four mounted men in the morning to go close to O'Brien's Bridge, there to protect him in performing his duty. On my return from Tulla, Serjeant Ryalls acquainted me with his wishes. I sent my compliments to Mr. Green (by Serjeant Ryalls) that the duties to be performed were out of ray district; that he could get men at O'Brien's Bridge. He replied, I was very impudent for sending—such a message, and that he should have the men. When Serjeant Ryalis returned, he reported Mr. Green's reply. I was going down to call on Mr. Green, but met him in Gaol-street. I called him one side from the party he was speaking to, and, on my commencing to speak to him, he commenced abusing me in a most violent manner; said he should have the horses to go where he pleased, that they were there for his use, and many other things I cannot call to memory. I replied he should have the horses, but that I would report the circumstance to you; he said I might do so, and was so very intemperate as to collect a mob about us. I have now, Sir, to beg the favour of an inquiry into this case. If I have been in error, it will be the means of preventing a recurrence; if, on the other hand, it will appear I have not been in error, I trust you will have the goodness to take such steps as you may think best, so as to protect me in the execution of your orders; the place Mr. Green is going to is Doonass, two miles from O'Brien's Bridge, and one from Clonlara; at the former station, is Lieutenant Bendon and party; at the latter three men at present. It is twenty-three miles from Ennis. It will also be necessary to acquaint you, that on Monday all the horses were at the fair of Quin, and much worked up; this day, as I said before, he had three of them out. One man was with me at Tulla, and one ill, leaving but two not employed. I conceive that forty-six miles would be too much for the horses in a day, and particularly when men and horses are so convenient. He asked me if I thought he was to go out of his way to order those horses. 593 I cannot describe the abuse he gave in the presence of many persons.The then Secretary for Ireland sent the following instructions to the chief constable:—I have submitted to the Lord-Lieutenant your letter of the 13th, stating the case under which the Under-sheriff for the county Clare had required the attendance of the mounted constables for his protection, and requesting instructions as to the course to be pursued by you in the event of such demands being repeated. I am commanded to acquaint you, that the constables cannot legally be employed by the Sheriff or his deputy, in the execution of civil process, and as it is essential that this should be distinctly understood, it will be necessary that all applications for this purpose should be withstood. In the execution of criminal process, or for the maintenance of the public peace, the Sheriff has a legal power of requiring the service of the constable.Here the police would not be given to the sheriff of Clare when calling for their assistance in the execution of the King's writs. This was the advice given by the Chief Baron, who now said that it was a contempt in constables to refrain to aid a commission of rebellion. There was no lawyer in the House, or out of the House, who would contend that a writ of rebellion was any thing more than a civil process to enforce civil rights; the treason was purged by the paying the plaintiff's attorney his bill of costs; upon that being done, "the rebel" was pardoned. The process was to enforce an appearance; but it never was contended, by any lawyer, that it was a criminal process. In the month of December, 1824, another gentleman from a different part of Ireland, that was described as being exceedingly peaceable, thus describes the state of the peasantry. This letter was from the Sheriff of Fermanagh, and dated the 19th of December, 1825.SIR—Having in my hands at this moment several of the King's writs, at the suit of the very rev. Dean Burrows, against a number of persons residing on the school lands in the barony of Glenawly, in this county, and been hitherto opposed in the execution of my duty by large armed parties, riotously assembled together, bearing flags and otherwise apparently determined to commit a breach of the peace, should I have persisted therein, I am thus reluctantly obliged to call upon his Majesty's Government for their directions how to obtain aid in support of the civil power herein, prior to my again attempting the execution thereof.I should not thus intrude myself on your 594 notice, but that without a Magistrate's warrant he police of this county will not obey any but the High-sheriff person, or the military, unless at the moment of opposition; neither of which would I call on except in a case like this, where I have been myself a witness, and a number of affidavits have been made that both lives are likely to be endangered, and a breach of the peace apprehended, should I go to those lands unprotected.Your advice and immediate attention to this matter will materially facilitate me in my duty in this behalf, as also remove the awkward manner I am placed in as to my power of calling on the police without a Magistrate's warrant, (which cannot at all times be procured,) or the High-sheriff attending in person. And I am, Sir, &c.The answer to this letter was to this effect, from Mr. Gregory:—The men will, on no account, interfere in the execution of any writ, decree, or civil order, or in driving for rent, tithes, or taxes, unless called out by a Magistrate, or the High or Sub-sheriff in person, and then they wilt only consider it their duty to protect those persons in the execution of their office.Acting on this authority the Sub-sheriff went out on the 19th of January, and met with the same hostile resistance; an account of which he thus gives:—Enniskillen, Jan. 20, 1826.SIR—In pursuance of your letter of the 24th December last, given in reply to mine, stating the necessity of my being protected in executing civil process on the school lands in the barony of Glenawly, in this county, from the armed parties which before opposed me, which letter refused me the aid and support I solicited from his Majesty's government, I repaired on the 19th (yesterday) January instant in order to execute certain of the King's writs, when the same party attacked myself and my men, rescued cattle, and the persons themselves against whom I had orders were opposed to me, and gave orders and directions to a number of men armed with guns, bayonets, forks, sticks (of all kinds), and stones, who, in the most savage manner attacked and beat myself and four men whom I had with me, three of whom are now lying in their beds under medical care, and myself unable to leave my room). The party being all strangers to us we cannot identify any; but both my own and my men's examinations have been taken as to general rescue and beating, and I have sworn against one man, against whom I had a writ, and whom, on my desiring him to deliver himself as a prisoner, ordered the party (which consisted of about 200) to kill me, who, subsequent to which, and as I believe by such directions, did knock, me down and strike me with forks and stones, and would have accomplished their object but for a respectable man who protected me, by desiring 595 them to desist or he would inform on them every one, and have reason to believe he knows numbers of them, but fears to give the necessary information. Lord Enniskillen, in whose neighborhood this affair occurred, came very promptly forward, but too late for anything effectual to be done. I write this hurried account, as I conceive it my duty, on such an important affair to the general peace of the country, and for the information of his Majesty's government, and to assure them that unless with a very strong force, and perhaps the loss of lives, the laws cannot be carried into effect in that part of this county, and against which I am sorry to say I have many processes to execute.—I am, &c.(Signed) "J. R. MAYNE.Under-sheriff for county of Fermanagh.In reply to this statement a letter prepared by Chief Baron Joy was sent as follows:—The new constables are to be employed in arresting any of the persons who can be sworn to have been guilty of the attack on the Sheriff. As to assisting the Sheriff to execute civil process, they are not to be called on except as part of the posse comitatus, from which service they are not exempt.January 24, 1835.It was all very well to talk of their being called out as part of the posse comitatus; but was ever a case heard of in which a party was attached for refusing to serve under such circumstances? He might be indicted and punished on conviction, but he could not be attached. From the period at which the police force was formed, the Government, acting under the advice of Chief Baron Joy, were of opinion that the constabulary force ought not to be used in this way. In the year 1826, the Magistrates again insisted that they would compel the constables to execute their warrants, and a constable who refused to execute one of these warrants was fined 5l. for contempt. The Government was applied to on the subject by Major D'Arcy, the Inspector-general, who represented this as a proceeding on the part of the Magistrates to force the constables to act contrary to the rules settled by the law-officers of the Crown, and Mr. Goulburn wrote the following letter, directing the remission of this fine:—Dublin Castle, Oct. 30, 1826.SIR—I have received your letter of the 19th instant relative to the fine of 5l. imposed on chief constable Given for not executing a warrant issued under the order of the Magistrates assembled at Downpatrick sessions. And upon consideration of the circumstances I am directed by the Lord-Lieutenant to ac- 596 quaint you that his Excellency has been pleased to remit the fine, and, desires that the amount shall not be stopped from Mr. Giveen.I am, etc.(Signed) "HENRY GOULBURN.Major D'Arcy, Belfast.Now, whether that order were right or wrong, they were not here to discuss; but it was rather unfair to accuse other persons of setting up themselves against the laws of the land, because in conformity with the first law authority in the land they had advised that the constables were not bound to assist in the execution of this process. He could, if necessary, refer to many other cases in which the aid of the police had been refused, under the advice of him who now said that it was a contempt of the Court to give such advice, and would again say, and challenge contradiction, that until the Court of Exchequer made the decision in question, there was not in England or Ireland to be found any authority in support of the doctrine now contended for. If that doctrine should be upheld, every soldier in his Majesty's service, no matter how employed, must, on the summons of a commission of rebellion, disobey his officer's orders, neglect all his other duties, and march off whenever the high functionary, the Commissioner of rebellion, required to arrest any body who may be pointed out; he might say that he was subject to certain rules fixed by his Majesty or his representative, and would be dismissed if he violated them. That would not avail him. The high dignity of the Court would be offended if he did not obey, and an attachment would be at least awarded against him. If he did obey what was he to do? To break open any house, to search for and seize the rebel even on a Sunday; and all this under the command of a bailiff. Was that, he would ask, a state of things to be endured? He thought it right to notice one or two remarks which had fallen from the learned Sergeant in reference to proceedings in the Court of Exchequer. He thought it mattered little whether the bills were filed by the Lay Association or not (upon the legality of which he thought the learned Sergeant had not given a sound opinion); it mattered little whether the number of bills so filed were filed as the hon. and learned Member for Tipperary (Mr. Sheil) had stated—by the Lay Association or by their solicitor, be he who he might, or by per- 597 sons acting under him. Whether in the whole 617 bills there were six attorneys or more, mattered not. In most instances they were filed for sums under 2l.; in many cases defendants were sued for sums so small as 2s. to 3s., where the costs with a decree, obtained without defence, would amount to upwards of 90l. This fact he stated from a return in his hand. In two suits for tithes the amount sought to be recovered in one was 19l. 5s 11d., the costs were 93l. 6s.—in the other case the sum to be recovered was 20l. 18s., and the costs came to 94l. 4s. The amount for which these 600 bills were filed was a little less than 20,000l., and the expense could not be less than 100,000l., if the parties proceeded to a decree in all. Now, in his conscience, he did not believe that those rev. gentlemen who were entitled to these tithes were cognizant of the proceedings which were taken in reference to them; 20,000l, was the outside of what was sought to be recovered by these bills. In the Assistant Barristers Courts in Ireland, in which a great deal of business was done, and which had worked well for the country, any sum under 20l. was recoverable by a civil bill. The whole of this money could have been recovered by the Civil Bill Court, and execution served by the Sheriff, who would have the free command of the police; his warrant could go against the person of the debtor or his goods, and the Government had intimated that the aid of the police would be given to effect the service of civil' bill process, because the parties could not obtain in the Civil Bill Court, though they could in any of the superior Courts, the aid of the Sheriff in the service of process. Far be it from him to throw blame on the clergy; but between the 1st of August last and 1st of February, 600 bills had been filed in the Exchequer, and in most cases for sums not more than 20l. or 30l. In fifteen cases out of twenty the claims were under 5l. or 6l. He would say if the constables had erred, the head of the Court of Exchequer had erred. If the police had erred, they had done so in consequence of the rule of the Lord Chief Baron himself. That Judge was reported to have made some declaration respecting Major Miller, and to have said, that if Major Miller shifted the responsibility on others, the Court would deal with them, and mark at last the original adviser; he hoped the learned Baron would adhere to that rule, 598 and acting with that judicial firmness and integrity for which he has been so justly praised, award an attachment against himself.
§ Mr. Shaw
said, he felt ashamed at seeing the right hon. the Attorney-General for Ireland coming forward to impugn not only the King's Judges in Ireland generally, but in particular the King's Chief Baron of the Court of Exchequer in Ireland. There might, however, be some excuse for the right hon. and learned Gentleman, for in attacking these distinguished personages he was probably defending himself. It was remarkable, as his hon. and learned Friend the Member for Bandon had observed, that the hon. and learned Member for Tipperary said, he should not adduce that part of his motion, on which he principally relied, without further notice—and yet the hon. Member had broken his faith, and endeavoured to lake them by surprise. The right hon. the Attorney-General then followed up the attack, armed at all points. He should not further remark on this singular concurrence between the two hon. and learned Gentlemen. As to the point which adverted to the inconsistency of the Chief Baron of the Irish Exchequer in pronouncing a decision contrary to his previous opinion as the Legal Adviser of the Crown, he supposed that such was not the fact—nay, he could prove it; but even if it were such, why should not that Judge have the firmness to act against any opinion of former times which his more mature judgment perceived to have been given without due deliberation? It was, to use a gentle phrase, a pure fiction to say that an attachment had been issued against a gentleman, at a distance from the scene of action of eighty miles, because he did not come forward to aid the clerical attorney. It certainly was true that the writs from the Exchequer Courts had been levied on the most respectable and solvent parties, because they were unwilling to incur useless costs against insolvent defendants, and also from a motive of humanity, they wished to save the misled individuals from suffering for the wickedness of others. The right hon. Gentleman said, the writ was never a civil process. He was not anxious to put his legal knowledge in competition with that of the right hon. Gentleman, but he defied any one to deny that, in those cases wherein it was issued, the circumstance 599 did not bring it within the original meaning of the Act. It was a writ of the most comprehensive nature, issuing from the King himself, not only to the Sheriff of the county, but to all officers and persons within the realm, and attaching; the body of the defendant, not in a civil case, but as a rebel, and for contemning the law—and also authorising the officer to execute it even on a Sunday, and to break open doors. In fact, all peace officers and other persons, unless able to show special exemption, were bound to assist the Commissioners in executing a writ of rebellion. He could not censure the right hon. Gentleman for making use of the papers of his predecessor in office, although he endeavoured to throw odium upon him. He only hoped he had not misunderstood them. [Cheers from the Ministerial benches, in which Mr. Sheil joined.] He was glad to see the hon. and learned Member for Tipperary was himself again after the castigation he had received from his Friend, the Member for Bandon. But it was most unfair to bring; forward those documents without giving notice to him, (Mr. Shaw) or any other person in the habit of communicating with the distinguished Judges impugned. He hoped the time would never come when the Judges in Ireland would be afraid to do their duty. He apprehended that the period was approaching when they would be called upon to assert the independence of British Judges; and he had not the slightest doubt but that they would act uprightly, and discharge their functions intrepidly, notwithstanding the threats of the hon. and learned Member for Dublin, supported and connived at by his Majesty's Government, when they themselves had not the manliness to come forward. Another insult on the judicial character in Ireland, was the appointment of Sheriffs without consulting the Judges, a thing that had not been done for a period oi upwards of twenty years. He should not have found fault with the Government for not appointing the names selected by the Judges, but at least those personages should have received the usual courtesy of being allowed to nominate in the first instance. In several other cases the verdicts of the Jury had been set aside, and male factors liberated from incarceration, without asking the opinion of the Judges Still he was sure the Judges would be firm in upholding the dignity of their station 600 and firmly discharging their duties, notwithstanding the weight of power and rank opposed to them. But he must add one word in reference to the Lay Association, and that was to protest against the statement made by the right hon. the Attorney-General for Ireland. The Lay Association had never sent about copies of bills about to issue from the Court of Exchequer—they never employed a solicitor but for the purpose of selecting the best cases, in which, if the parties acting under their advice were unsuccessful, they were to reimburse them. And so prudently and cautiously had they proceeded under the direction of the solicitor, that his hon. and learned Friend, the Member for Bandon, had overstated when he estimated the number of bills issued from the Court of Exchequer at between fifty and sixty. The Lay Association never urged a party nor instituted a case themselves. They always required the clergy to have and consult with counsel of their own before they would give any assistance; but they never commenced any proceedings. If the legal conduct of any person connected with the Lay Association was impugned, he stood forward in that House ready to meet the accusation. Notwithstanding rebukes from the Government or hon. Members in that House, or parties in any other quarter, the Lay Association would never flinch from the duties it had undertaken. He little thought the time would come, as it now seemed to approach, when an attempt would be made to oppose the Protestant gentry of Ireland' for coming forward to support the clergy of their own religion in recovering their just rights, after a conspiracy of five years against the law, which, if not openly encouraged, was at least connived at by the Members of the present Administration.
§ The Chancellor of the Exchequer
said, that the right hon. Gentleman had called on his Majesty's Government to give an opinion, and he, as a Member of that Government, would declare a distinct and decided opinion for himself, and he believed he might add for his colleagues. It would then be for the House and the country to decide between them and the right hon. Gentleman. But first he begged, in the name of his right hon. Friend, (Mr. O'Loughlin) to repel the insinuation of having acted with disingenuousness, or of having, on the present occasion, done anything beyond vindicat- 601 ing his own conduct and the acts of the Government to which he belonged, in a Parliamentary and constitutional manner. It had been said, that some finesse had been exhibited in the alteration of the motion. All he could say was, that till the hon. and learned Gentleman closed his speech, he and those around him were totally unprepared for any change; they knew nothing about it; and what right, then, had Gentlemen opposite, before the Commons of England, to accuse them of acting basely and disingenuously? The right hon. Gentleman was, however, light in one respect, in saying that his learned Friend had come down armed at all points; his weapons had been felt—they had inflicted wounds which would not soon be forgotten. Had they not done so, would the right hon. Gentleman have led them astray, in a wild goose chase, on matters not relating to the question before them? Would he have endeavoured by invective to induce the House to believe that the Government had been acting on the principle of defeating and overthrowing the authority of the King's Judges in the King's Court? Would he have alluded to the Judges' nomination of the Sheriffs, or would he have dragged in the case of Reynolds? When the time came for discussing that Question, he (the Chancellor of the Exchequer) was ready to take upon him before the House, and before Ireland, the defence of the Government—not defence, but he would say, the credit and the responsibility. If the right hon. Gentleman opposite were really determined to grapple with facts—if he had documents and authorities to support him—why to take a term from the sporting world—why by a "false drag" take us off from the real scent, and seduce us from the consideration of the real question? The right hon. Gentleman says, it is a new sight to see the Attorney-General for Ireland impugning the judgment and integrity of the King's Judges in Ireland. He denied that his right hon. and learned Friend had done so. His right hon. and learned Friend had done merely that which was his bounden duty. He was called upon by the other side to give his opinion upon the motion arising out of the notice of the hon. and learned Member for Tipperary; and, having been thus called on, he would have been unworthy of the place of trust and confidence which he now tilts if he had not answered it fully and fairly. As 602 to the Judges of the land, not they alone, but the King's Government was upon its trial. With regard to the question of tithes, for months past, in every paper, and in every speech of one particular party, Ministers were described as being unwilling to afford, or, rather, determined to withhold, the protection which it was their duty to afford not only to that but to every species of property. The right hon. Gentleman, by his not merely insinuation, but by his direct attack, censured the conduct of Government. Was Government, he would ask, to lie under these imputations? When challenged, were not they called on to meet these accusations? The authorities that were stated, and various Acts which the Chief Baron was instrumental in introducing, proved that the police functionaries alluded to did no more than they were authorised by the taw of the land, and the usages regulating the conduct of all the officers of Government. The hon. Gentleman opposite had used a private letter to carry his point. He acknowledged the talents of the hon. Member, but he did not think that the confidence and security of private life should be abused to carry a political end. Why should a private letter, written in perhaps an unguarded moment, be used as an instrument against a political adversary? He would quote from a document that the hon. Gentleman opposite would not, he was sure, object to—an extract in support of his proposition and the doctrine of the Attorney-General for Ireland—he meant a letter from Mr. Gregory to the Sheriff of Limerick. The letter stated that, except in case of breaches of the peace, the police were not to be used. The fact was, that the police were not to be employed except in cases of extreme emergency to keep the King's peace. He would ask the gallant General opposite whether he knew of any such case of prohibition issued by the Irish Government? Did he recollect of any such instance?
§ Sir Henry Hardinge
said, that he did not recollect such a case; no such one was brought under his notice. There might be papers in the office relating to it which he did not recollect.
§ The Chancellor of the Exchequer
did not like to use private letters; it was very improper to make public charges out of them, He was a Member of a Committee to frame a law, and was partly the author of a law that prevented any officer from 603 being employed by Magistrates for enforcing the collection of revenue, or the collection of tithes. The police were not intended to be made the agents for such purposes; their duty was to prevent any infraction of the peace, to suppress crime, and to enforce the Jaw. Did the hon. Gentleman mean to say that if a writ of rebellion were to issue from that House that the Speaker was to be called on to enforce it? A writ of rebellion was applied to a civil process, it was not meant to extend to criminal cases. This argument of a writ of rebellion, and the inferences attempted to be drawn from it, only misled the House, and drew off its attention from the true consideration of the question. A person against whom a writ of rebellion issued could be discharged under the Insolvent Act. [Mr. Wynn: there is a special exemption.] Then let the right hon. Gentleman say what is rebellion, and to what case the writ applies. If the right hon. Gentleman doubted his interpretation, though this was a point to be discussed hereafter, let the right hon. Gentleman introduce some measure that would make the matter clear and intelligible. It was not right on the part of the right hon. Gentleman, or of the Bench, to say that the constabulary must be employed to enforce the mandate of every Court of law, and yield to every authority that calls on them, and show that the Government were by the lawful and just disobedience of the police officers, instrumental in the resistance to tithes? The right hon. Gentleman had spoken of the danger of destroying confidence in the administration of justice. He felt fully that danger; but he would say that while the public owed much to the bench, the bench owed something to the constituted authorities of the realm; and, in his opinion the course which had been pursued of holding out to the people of this country that there existed a conspiracy abetted by the Government—an organised conspiracy extending down to the very constabulary, for the purpose of defeating the administration of the law, and destroying the ties which bound society together, was much more dangerous than any observations which could be made in that House. He thanked his right hon. Friend (Mr. Sergeant O'Loghlin) for his able defence of the conduct of Government; and he assured the House that if the Government had not been challenged by the right hon. 604 Gentleman (Mr. Shaw), and if he had not been called on, he would not have offered a single observation on the question before the House. That challenge he accepted, and in defiance of it, expressed not merely his own opinion but that of his colleagues.
§ Mr. Sergeant Jackson
explained that he violated no confidence in reading the extract from the letter alluded to; he found it on the file of the Court.
§ Viscount Morpeth
said, he would trespass on the indulgence of the House for a few moments. There were two reasons why he did not speak before; the first was that the question involved so many legal niceties and subtleties, that could be better handled by experienced lawyers, and the elucidation of which he could safely leave in the hands of his right hon. Friend the Attorney-General for Ireland. The second was, that as reference was made to his own conduct he wished to defer any observations of his till the result of the decisions of the Court of Exchequer were known. He should rejoice at the degree of impunity which he enjoyed still, for he was not unfrequently told that from the case of Knox v. Gavin that impunity he would not enjoy long; that an attachment would issue against him as the chief agent. The House were aware that an attachment had issued against chief constables Miller and Malone. But they had only acted on his instructions, the warrant for their guidance was signed by him. He would say—Me—me adsum qui feci—In me convertite ferrum.He would avow himself the author of the instructions on which they acted, and he would defy the enmity or assaults of his accusers, which were worse than the Rutilian spear. He would not lead the House into the hallucinations of the Chief Baron when he was Solicitor-General for he was not deserted by other, and as good, authority. The hon. Member opposite had recourse to private papers, and he (Lord Morpeth), too, had some private papers to produce, and without any breach of confidence. He would refer to the first Commission of rebellion that was issued in modern times. It was addressed to Mr. Ogle, Sheriff of Meath, against Clarke.—and was as follows—William the 4tb, by the Grace of God of the United Kingdom of Great Britain and Ireland, King, defender of the faith and so forth, 605 to Thomas Williams, Henry Ogle, John Sheridan, greeting, because, by public proclamation, by the Sheriff of the county of Meath, in divers places of the said county, by virtue of our writ to him directed, it was commanded that Hugh Clarke, on the peril of his allegiance, to appear before the Barons of our Exchequer at the King's courts in Dublin, at a certain day passed; yet he has manifestly contemned our commands therein, therefore we command you, that you omit not, by reason of any liberty, but to enter the same, and attach the said Hugh Clarke, where so ever he shall be found within our kingdom of Ireland, as rebel and contemned of our laws, so that you or any of you have his body before the Barons of the Exchequer, at the King's Courts, Dublin, on Monday the 13th day of April next coining, to answer those things which then and there shall be objected against him, and further to do and receive herein what our said court shall order; we also command that all and singular our sheriffs, mayors, bailiffs and all our officers and liege subjects whatsoever, firmly enjoining them that to you and each of you in the execution hereof, they be aiding and assisting. In testimony whereof, we have caused these our letters to be made patent.Witness, Henry Joy, Esq., Chief Baron,Jan. 15 1835.J. FARRON.R. W. Osborne, attorney.The next was a copy of a letter from the Magistrates in Petty sessions, county Meath, to Sir Wm. Gosset, dated 23rd March, 1835. viz.—Navan Petty Sessions, March 23, 1835.Sir—We have been this day applied to in Sessions to direct the Police to assist in the execution of a writ, the copy of which we inclose; not being certain of our jurisdiction in the matter, we are anxious to be directed as to the course we should pursue.We have, &c.,(Signed) "P. P. METGE, J.P.R. P. Q. HAMILTON, J.P.Lieut.-Colonel Sir Wm, Gosset.He had some difficulty in reading the reply, because it proceeded from a gentleman who, although he (Lord Morpeth) could not say that he was not present, was nevertheless not in a situation to answer for himself. It was as follows;—Dublin Castle, 26th March, 1835.GENTLEMEN—I have received and laid before the Lord-lieutenant your letter of the 23rd instant, inclosing the copy of a writ, in the execution of which you have been applied to in sessions to direct the police to assist, and requesting to be instructed as to the course you should pursue, not being certain of your jurisdiction in the matter. In reply, I am to acquaint you that the law adviser does not think that the police should be employed to execute process of this nature, nor have you any Jurisdiction to direct them to do so. If 606 their interference be necessary to preserve he public peace, a proper case must be made out by affidavits.I have, &c. (Signed)W. GOSSET.The Magistrates at Petit Sessions, Navan.Now that answer was not by the authority o Lord Mulgrave, but Lord Haddington—not from the "O'Mulgrave"—the Radical Lord, but the true Protestant and Conservative Lord-lieutenant. Into what error or criminality, then, could he (Lord Morpeth) be led by following the advice of Mr. Baron Joy, or the example of Lord Haddington?
§ Mr. Scarlett
said, the Jaw of the case was clear that the Court of Exchequer was right. It was the general opinion of the whole legal profession that an act of rebellion was both of a civil and a criminal nature; and that the Court was authorised to enforce its authority respecting it even, in a case of costs. He could not repress the expression of his utter surprise that the King's Attorney-General could be found in Parliament attacking the Judges of the land. Was it already come to this, that the authority of the Courts of Law was to be set at nought, and the Judges vilified, and vilified, too, for not the most honourable of purposes—for party purposes? He thought that the Irish Government was bound to attend to the opinion of the Judges, instead of thwarting and deriding it.
§ Mr. Sheil
, in reply, said, that he owed it in the first place to himself to state such facts as would at once relieve him from the imputation of having unexpectedly, and contrary to a previous intimation given by him, moved, in addition to what appeared on the face of the paper, for a return of the amount of bills filed since August last, for the recovery of tithes. He Mr. (Sheil) had, on a former occasion, moved without notice, for a return of the number of such bills, and also moved for the names of the attorneys by whom they had been fled. On that occasion the Recorder of the City of Dublin objected to the Motion, because the names of attorneys ought not, as he alleged, to be included. He (Mr. Sheil) then withdrew his Motion, and gave notice of it. He afterwards allowed it to drop, in consequence of the pressure of other business which preceded it, and told the learned Sergeant opposite, and the Member for the University of Dublin, that he 607 should not move it in their absence. Accordingly, in their presence, he had added the Motion of which a notice had been originally given, and he left out the names of the attorneys, because their production had been at first objected to. Nothing could be more remote from his intention than to take the Gentlemen opposite by surprise, and it was obvious that taken by surprise they had not been. The learned Sergeant (the Member for Bandon) had come with at least the materials of a speech, and with a private letter of his in his pocket. The learned Sergeant who complained that he had not had notice, never gave him notice of his purpose to use that letter. He had a few moments before the debate met the learned Sergeant above stairs, who had entered into conversation with him, and had asked him where he (Mr. Sheil) could procure a copy of the printed Report of the Case of "Knox v. Gavin; and yet the learned Sergeant, having his private letter in his pocket, never told him that be meant to avail himself of it in the debate. It was idle for the learned Sergeant to suggest that the letter was not private, because it had been referred to in a bill filed against him (Mr. Sheil). By whom was that bill signed? Let the House mark the fact: the bill adverting to his letter, was signed by the learned Sergeant himself. So that the learned Sergeant first had his letter laid before him in his study, refers to it in his professional capacity in a pleading, and then, having thus divested it of its character of privacy, reads a part only of the letter in his Parliamentary capacity, and declines, when called on, to read the rest. This was scarcely fair dealing on the part of the learned Sergeant. That letter had indeed been made use of, very much to his (Mr. Sheil's) surprise in a Bill filed against him, and the Evening Mail had copied an extract from it, apologising, however, for doing so, and stating that the letter was on the files of the Court of Exchequer, and, therefore, was no longer private. But here (said Mr. Sheil) is the copy of the letter produced by the learned Sergeant, and handed to me; and on the outside of it—what appears? It appears to be inclosed to the learned Sergeant from Dublin; and the post-mark is upon it, so that the learned Sergeant, who had no notice of this motion, gets my letter from Dublin, keeps it in his pocket, never 608 mentions it in private conversation with me, and then employs it in the House. But look at the endorsement. It is marked outside "Lay Association." So that the letter was delivered to the "Lay Association," and employed by them in sueing me, and comes from the archives of the society for the purposes of this debate. On the outside these further words are endorsed, "Shell's letter;" and the name of "Orpen" is added underneath. Mr. Orpen is the Solicitor to the Lay Association, and I never stated that Mr. Smith acted in that official capacity; but I do believe that Mr. Smith, under the superintendence, and with the co-operation of the society, has filed a great number of bills. I do not blame him for so doing; I acquit him of every charge; and only refer to the number of bills filed, as evidence of the frightful scenes of litigation which have been got up in connection with political contests in Ireland. As to my letter, I will, without hesitation, read the whole of it to the House; and, indeed, as an extract has been employed, the House owe it to common justice, that the whole should be read. It is addressed to the rev. Mr. Thompson, the clergyman of the parish in Tipperary, where I reside, and I cannot help saying, that I did not think it necessary to mark "private, and confidential" as an inducement to him not to furnish it for such purposes as those to which it has been applied. But let the House judge, without any comment from me, how far the rules which regulate private intercourse, have been observed. The letter is in these words:—To the Rev. Mr. Thompson.Long Orchard, Oct. 12, 1835.MY DEAR SIR.—It is perfectly true that I wrote to you that in the event of the Government expressing a determination to abide by Lord Stanley's measure, I could not complain if you adopted proceedings against me.The Bill proposed last session has been rejected by the Lords, but that some such adjustments of the unfortunate tithe question will be brought forward at the commencement of next session (whatever party be in power) seems obvious The Government have not intimated any intention to retain Lord Stanley's plan; a great change is inevitable. Under these circumstances, I submit to your consideration whether the delay of a few months on the part of he clergy be not more advisable than die immediate exercise of their existing legal right to tithes. I am not insensible to she hardship of their condition produced by the 609 contentions of the great rival parties in the State; but, on the other hand, by what possible means can those who pay tithes at this juncture succeed in recovering them from their own tenants?Parliament must meet early in February, and the question must then be settled; no legal proceedings could be effectual before that period. It will be for you to decide how far it will be advisable to involve yourself and me in litigation injurious to both of us, when the settlement of all demands by the Legislature is so close at hand.At the same time I think it but justice to add, that in the event of your proceeding against me, I shall not regard such a step upon your part as a severe or unjustifiable one; although being myself unable to collect tithes, and being placed in peculiar political circumstances, I indulge in the hope that you will not consider it unreasonable that I should have recourse to such expedients of procrastination as the law supplies.You must be aware that as Member for the county of Tipperary, I must elect between the payment of tithes and the loss of my seat; perhaps this consideration may induce you to delay for some months longer.I really do not know to what extent I am liable to your demands; most of the leases were executed before Lord Stanley's Act; and—property, in your parish, has been so subdivided, that to determine who are, and who are not liable, would be a task of some difficulty.Whatever course you adopt, I trust that no interruption will take place in the kindly feeling that ought to exist between neighbours, and that our legal differences will not be embittered by any personal animosityYour's, very truly,R. L. SHEIL.Sir, I own every sentiment in this letter not meant for the public eye—the effusion of sincerity, and the result of no unkindly feeling. It is free, I hope, of all political and sectarian animosity, and exempt from that bitterness which, when our moments of public contention are past, ought surely, in private life, to be laid aside. I do not want to deprive Mr. Thompson of his tithes; I only requested him to delay his proceedings for a few months, and I do this with the courtesy that becomes me in addressing myself to a gentleman, for whose privations I felt the sympathy which I expressed. All that is stated in that letter is true, and nothing more true than that the clergy are made the victims of the rival parties in the State; their nominal auxiliaries have proved their most formidable foes. But, indeed, indeed, the learned Sergeant, with whom I am upon terms of Familiar professional communica- 610 tion, ought not to have used this letter. I shall say no more of it, I have been informed by the Recorder for Dublin that the learned Sergeant has given me a severe castigation; If so, I shall bear it with a just philosophy; but I must say, that the castigation consisted principally in giving a flat denial, which I thought that the learned Sergeant had a vocabulary sufficiently rich to convey in some more skilful periphrase than such words as "utterly unfounded," and the rest of those very polished sarcasms to which the learned Sergeant had recourse. But I turn to the learned Recorder himself. He defends, and most appropriately, the purity of the Bench. I did not attack its integrity; I said that, under the influence of strong feelings, men the most conscientious might be hurried into a mistake. I acquitted all parties, judges, solicitors, attorneys, of all moral blame. But it is delightful to listen to the learned Recorder's vindication of his brother Judges. He is himself so immaculate, so free from all factious emotion, so much above all partisanship, that he cannot even conceive how a Judge can be an agitator; how a man filling-that high and sacred station can descend to the excitement of popular passions, enlist himself with a party, and be placed by a faction at its head. The learned Recorder, as I have thus conferred on him the meed of my respectful panegyric, will, I hope, pardon me if I presume to suggest to him that it would have been as well if his own name had not appeared as a member of the Lay Association for levying tithes. What! a Judge before whom a tithe case may be tried in which the Lay Association might institute the proceedings. [Mr. Shaw; No tithe case can come before me.] The Recorder is surely mistaken. He is imperfectly acquainted with the extent of his jurisdiction, although, he has so lively a sense of his moral judicial duties. He can try a civil bill for tithes, and I challenge him to deny it. It is therefore most unfortunate that his name, his right honourable and judicial name, should appear the second on the Committee of the Lay Association, instituted in order to carry on the most formidable proceedings in our courts of justice, and constituting what there is reason to think a most illegal, as well as a most oppressive confederation. I have been in the course of this night contradicted on many points, but on this remarkable circum- 611 stance I have not been encountered with a negative. I stated that the Lay Association set forth in its advertisement in The Standard newspaper the names of its trustees, and the names of the trustees I read:—" Lords Roden, Enniskillen, Bandon, Lorton, Farnham." Has the leading and principal post taken by these noblemen been denied? Who are they?—Orangemen. And will it be said that to every member of the Society the old proverbial saying, noscitur à sociis, does not apply? Will it be said that between the Orange Society and the Lay Association there is no communion and no sympathy? The Orangemen are generally frank, direct, and candid. To the Orange Society I am disposed to apply Arbuthnot's epitaph (I wish one could apply to them an epitaph) on Chartres: it has "every vice except hypocrisy;" but he Lay Association cannot claim this exemption, and pay what Rochefoucault calls the unconscious homage that vice pays to virtue.
§ Return ordered.