GRAND JURIES (IRELAND). (Hansard, 15 July 1836)

§ Mr. Fitzstephen French
objected to the retrospective power proposed to be given to this clause, and moved, that the words "any Act now in force in Ireland," be omitted. He considered the clause was introduced for the purpose of forcing an unjust claim on the county which he represented, and under it the Judge would be forced, even contrary to his own opinion, to order money to be levied off the county.

§ Colonel Perceval
said, the clause would have the effect of an ex post facto law, particularly with respect to the claim made upon the county of Roscommon, because the Government's claim had already been discussed there; and the Judge, after taking proper time to deliberate upon the case, had declared, that the law of the land could not enforce the payment of the money. Now, by this Act, the same Judge would be compelled to reverse his own decision, and compel the Treasurer of the County to levy the money, upon receiving a certificate to that effect from the Chief or Under-Secretary to the Lord-Lieutenant, which was to have all the force of a Grand Jury presentment, and this would operate most hardly upon those who, in the county of Roscommon, had hitherto resisted the claim of the Government, because the matter would be investigated, no evidence would be heard—it would be at once settled by a certificate from the Government, that the money was due, a course of proceeding which was neither consistent with justice and equity, nor reconcileable to the duty of the Government towards his Majesty's subjects. The right hon. Gentleman (the Chancellor of the Exchequer) had stated, that he thought there should be a limitation of five years, after which such claims could not be sustained; now if his Majesty's Government were of this opinion, why introduce this clause into the Act before them, compelling the people to pay that which could not be demanded from them by the law? He considered the clause to be an extremely oppressive clause, and he hoped his hon. Friend below him (Mr. Fitzstephen French) would persevere in his amendment. There was a limitation to the claim of debts in common cases, between man and man, and he could see no reason why this 243 should be an exception; it was now fourteen years since the money was said to have been advanced, in the course of which time those who originally benefitted by it, perhaps were dead; new tenants, who had no interest in it, might be in possession of the property; various transfers must have taken place; the Judges had declared against it, and said it was not in their power to enforce its payment; and now the House, by this clause, gave a new power to recover it, which he could neither reconcile to justice nor honest dealing with the parties, and therefore he should join in resisting the clause.

§ Mr. More O'Ferrall
supported the clause, and declared, that it was not retrospective. He stated, that it gave no new power, and that if it were not passed, the constabulary would be unprovided for.

§ Colonel Perceval
The hon. Member did not understand him as wishing to enforce the payment of the money immediately upon the expiration of the five years, but merely as desirous to have it enacted, that unless payment be demanded within that period, there should be no power to recover it by levy; whereas, with respect to Roscommon, the money was said to have been advanced in 1822, and a period of fourteen years had since elapsed. The clause gave the Government the power to do that which they could not do now, and therefore he should oppose it. If the noble Lord would frame a clause, enacting that money advanced should not be repaid unless demanded within five years, he would support him; but he would not agree to one which gave power to recover money after such an extraordinary length of time had passed away. He considered such a proceeding to be unjust and inconsistent with fair dealing between the parties. He should be the last person to resist a just debt, but confiding in the integrity of the Judges who had decided against the power of the Crown to enforce the payment, he saw the greatest evil arising from a clause which gave a summary power of enforcing it after the lapse of fourteen years.

§ Lord Clements
supported the amendment, and considered that such a power ought not to be vested in the judge.

§ Mr. F. French
stated, that the hon. Member for Kildare was incorrect in every statement he had made. The clause was a retrospective one, as the hon. Member him- 244 self confessed the clause did contain new powers. The court now could refuse to fiat until certain presentments were made by the grand juries. But by this clause the judge could make an order which would have the force and effect of a presentment, and under which the money would be levied off the county. The hon. Gentleman would not deny that this was a new power. The omission or alteration of this clause would not affect that portion of the expense for the support of the constabulary, which was to be borne by the counties in Ireland. This was provided for by the constabulary Bill, which had passed so very lately, that he was quite surprised it should have escaped the recollection of his hon. Friend. The last assertion was, that this money was lent on the application of the grand jury. This was also incorrect, as the grand jury never made an application on the subject.

§ Mr. O'Loghlen
said, the operation of the clause was not retrospective; it merely preserved the right of the Crown, and provided for a clear exercise of that power which was now exercised in a most inconvenient manner. The presentments of the grand jury, as the law stood now, must be fiated by the judges, before they could he put in force. Certainly this money could only be paid upon their presenting, but the judge had the power of refusing to fiat their other presentments, if they refused to make those which might properly be required of them. He could by this means stop all allowances for the maintenance of the gaol, or for county expenses of any kind whatever. Instead of doing this, he would now have the power of ordering payment on the certificate of the secretary of the Lord-Lieutenant, but not of saddling the county with one shilling expense, to which it was not before liable, and this was not a new power.

§ Mr. F. French
said, the only existence it had was in a local Act for the city of Cork, and was, to all intents and purposes, a new power, so far as the counties were concerned. It was, he contended, for the purpose of making the country in general pay sums that had been lent, or granted perhaps would be a better phrase, by individuals.

§ Mr. O'Loghlen
—There are twenty Acts of Parliament applying to counties, but none to individuals. This Act will not, in any way, affect the claim upon the county of Roscommon.

§ Colonel Perceval
—The clause would have the effect of forcing the payment of 245 money, in spite of the decision of the grand jury; all that the judges could now do was to say, we will refuse to fiat your presentments, but the jury might think proper to take the consequence of their refusal, rather than present certain sums required of them, and then the money could not be demanded; but hereafter, should this clause be passed, the judges might allow the grand jury to go through the farce of presenting, and set them at defiance, telling them "we do not want your presentment, we have power to control your decision—the treasurer may at once levy the money.'' He thought it was much better to leave to the grand jury the alternative they have now, rather than the counties should be set in opposition to them, as they would be in the payment of sums like these; the clause would give the judge the right of setting aside the deliberative power of the grand juries, whenever he was directed so to do by the Lord-Lieutenant. He would prefer leaving them the alternative they now had, to giving the judges, on the direction of the Lord-Lieutenant, the power of levying without their previous presentments; the judges had no such power now, if they had, they would exercise it. This clause would give them a new power, and if Mr. Justice Burton went the same circuit next assizes, he would probably be compelled by it to act contrary to his own former decision.

§ Viscount Morpeth
said, it was plain to him that if the cases referred to by the hon. Members opposite were not just debts, this clause would not compel the payment of them; while, on the other hand, he had already had sufficient experience to satisfy him—such was the present uncertain state of the laws in Ireland, that there was the greatest difficulty experienced in procuring any pecuniary advances out of the general funds of the empire to be applied to local purposes in that country.

Mr. Randall Plunkett
believed, that many of these advances should be repaid, but he objected to the more stringent power which this clause would give to the judges. The noble Lord and learned Attorney-General for Ireland said, that it would only enable them to do that directly which they now have the power of doing indirectly. In the present state of things, it would be more desirable that the control of the county funds should be vested in a body of men, than that of an individual, thereby setting aside the presentments of the grand jury, and Tendering them useless altogether.