§ On Clause 46, providing that persons offending under the case and discovering others to have offended within a twelvemonth, to be discharged from all penalties,
§ Mr. George F. Young
could not avoid thinking that this clause was totally inconsistent with propriety. He could perfectly understand why a person guilty of an offence should be discharged from the penalties thereby incurred, on becoming king's evidence—but when the particular privilege of the franchise was to be conferred on an individual on the supposition, of course, that he was duly qualified for the exercise of that franchise—upon what principle was it, he would ask, that if that individual was known to have offended in any way, he was deprived of all right to such franchise, but, that should he give evidence of another person having committed an offence, he was not only, in consequence thereof, discharged from all penalties imposed by his own offence, but actually had restored to him the 427 exercise of his franchise? The whole foundation of the argument in favour of it was merely this,—that a person having disqualified himself, and having become unfit for the exercise of that privilege, Was, on convicting another, to have entirely restored to him that privilege. [The Attorney Geared: Such is the law in England.] It might he a very convenient argument to say that it was a previous enactment, they had therefore adopted it; but he submitted that what had been stated by the Attorney-General was no answer to his objection. Whether the principle were sanctioned by custom or precedent., it appeared in his (Mr. Young's) opinion to be one of the most injurious provisions that could be made for the morals of the people.
observed that this provision was taken from the, English Act. One man escaped punishment when he gave evidence against another, and upon the same principle was this provision framed.
§ Clause to stand part of the Bill.
§ On Clause 48,
§ Sir Robert Peel
objected to the clause altogether. Mayors of towns elected by popular suffrage, should not be justices of peace. All that applied to corporate sheriffs would apply also to corporate justices. The mayor as a justice was entirely independent of the Lord-Chancellor, and could not be removed in a summary manner, as a justice of the peace might be. In Ireland it was was found necessary to act upon a different rule with regard to county Magistrates from that pursued in England. There was a summary power in Ireland to remove Magistrates. In England the Lord-Chancellor rarely removed a Magistrate, unless he was convicted of some offence; but in Ireland the practice was, without waiting for any conviction—upon, for instance, the ground of partiality or general unfitness to do so. Complaints were made on this subject by General Burke and Mr. Barrington in their evidence before, the Committee in 1825, upon the express grounds that town Magistrates were not, as county Magistrates were, subject to the direct control of the Lord Chancellor. These witnesses were asked, had not the King's Bench authority to act in reference to this subject—and their reply was, that although the King's Bench 428 could interfere, yet that there would be so much expense and delay attending any proceedings in that court that the remedy would be as bad as the disease. He must, therefore, contend that inasmuch as these elections were to be made by the exercise of popular suffrage, instead of by self-election, they derived from it, no new security with respect to qualification, or for having an impartial or pure administration of justice. When the English Bill was brought forward the noble Lord opposite (Lord J. Russell) said, it was his wish to separate the executive from the judicial power, and the civic functions of corporate officers from those of a judicial nature. He (Sir R. Peel) knew not what object was gained in this respect. In case of a breach of the bye-laws of the Corporation, the justice, he himself being a party to them, and to which he was indebted for his office of mayor, was the person to sit in judgment. By such a provision the chances of a perfectly impartial administration were greatly diminished. He therefore opposed the clause altogether and distinctly declared it to be his decided conviction that the mayor of a town in Ireland should not be a justice of the peace.
§ Lord Morpeth
said, that as the mayor was only elected for a year, he possessed very little power to do mischief.
§ Sir Robert Peel
said, that the defence set up by the noble Lord was a most, extraordinary one. His defence was, that the mayor being elected every year, his power of mischief would be so small; no apprehension need exist upon the subject. The noble Lord's defence reminded him of the defence set up by a woman who was accused of having had an illegitimate child. It is true, said she, I have had a child, but then it was a very small one.
§ Mr. Roebuck
defended the clause, and contended that the country never could expect to have good judges until they should be elected by the people and made responsible to them.
begged to caution the gentlemen opposite against sneering at judges who had been elected, inasmuch as an elected judge (Mr. Shaw) was at that moment sitting next to the right hon. Member for Tamworth. He would beg leave to remind hon. Members that by the common law all judges were elective, and no Act of Parliament was ever passed taking away that common law right. As to the King's Bench removing Magistrates, they certainly had the power, but very 429 rarely exercised it. The return to the House of the number of Magistrates against whom informations were granted by the King's Bench in England, for several years back was "nil'' In Ireland he only recollected three. He, therefore, did not rely upon the interference of that Court to keep the Magistrates pure.
§ Mr. Shaw
said, the hon. and learned Gentleman (Mr. O'Connell) might spare his sympathy. It was true he had been elected to his office by a popular assembly—but he had, notwithstanding, never concealed his opinion even from the body who had elected him —that on principle a popular assembly should not have the election of a judicial officer. The argument of the hon. and learned Member for Bath (Mr. Roebuck) had, at least, the merit of consistency— for he contended that all the judges of the land should be elective, and hold their offices at the pleasure of the popular voice—but that was going rather farther than he apprehended his Majesty's Ministers were yet prepared to go. It was their inconsistency which he attacked— they had adopted a different principle in all their legislation for Ireland from that of this Hill. By their present Constabulary Bill the Lord Lieutenant might appoint a stipendiary Magistrate to every one of the many boroughs in question. This clause, taken with the 83d, 84th, and 85th, would establish a complete system of village tyranny in Ireland, for the town-council, which, if ever established, would be in the hands of a dominant party—would annually have the election of this mayor, and the power of making bye-laws which he was to execute. These bye-laws were to create offences and impose penalties; the penalties to be recoverable in a summary way before the mayor holding office at the will and pleasure of the town-council, and by the 85th clause, all the fines arising out of these convictions, were to be carried to the borough fund.
§ Mr. George F. Young
disagreed from the doctrine laid down by the Member for Bath, that all the Magistrates and Judges should be elected. He would much prefer that the justices should be appointed by the Government, as he was confident justices so appointed would be much less likely to be swayed by party prejudices than if they owed their election to the popular voice.
§ Lord John Russell
supported the clause, and contended, that when the English Bill was going through the House, no objection was made to the election of justices.
said, that the whole 430 foundation of the arguments on his (Mr. Goulburn's) side of the House was, that a great difference existed between the state of society in England and Ireland. Two parties contending for power unfortunately divided that country—municipal power was at present exclusively vested in one, and this Bill proposed to transfer it to the other.
§ Sir Robert Peel
agreed that in matters of legislation the majority must govern the minority, but he altogether protested against its being applied to the administration of justice. It was the duty of the House to insure as much confidence in the pure administration of justice in Ireland as they could possibly inspire, and he contended that that could best be achieved by vesting the appointment of the justices in the hands of the Crown. The hon. Member for Bath said that the highest judical offices ought to be elective, but that was not the principle of the Government, nor the principle of the Bill. By this Bill the Recorder was to be appointed by the Crown, and the principle if it were good as regarded the Recorder, why should it not hold good with respect to justices?
Mr. O Loghlen
could not help thinking that the powers to be conferred on the mayor, as a justice, were supposed to be much more extensive than the clause directed. The mayor would be merely empowered to act with another justice, on a summons issued under the bye-laws; but from their decision on such a matter there was an appeal in the larger towns to the Recorder, who had jurisdiction over almost ail questions of a civil or criminal nature. In the smaller towns the justices of the county had a concurrent jurisdiction with the mayor; and from their decision there was an appeal to the assistant barrister.
§ Mr. William Roche
supported the clause, and said, that even under the bad system at present existing in Ireland, he had often seen Magistrates act together without any bias of political or religious feeling.
§ Mr. Finch
opposed the clause, and said, that the Attorney-General for Ireland defended it, not so much because it was right in itself, as because the power possessed by the mayor was of a very limited nature; but if this power was likely to be used by a party man, and for party purposes, he must consider the clause as highly objectionable, and he should, therefore, oppose it.
§ Lord John Russell
said, that the whole principle had been discussed on moving the 431 instruction to the Committee; and the House having decided that the same principle should be extended to Ireland as that upon which the English Bill was based, it was now quite unnecessary to discuss it.
§ The Clause was agreed to.
§ Clause 49— Power in Council to appoint town-clerks, &c.
§ Mr. Shaw
said, that this clause contemplated a very material change in the office of town-clerk, inasmuch as those officers now held independent offices for their lives; whereas, this clause made them removable at the pleasure of the new town council; and, by referring to the 115th clause, it would be seen that most important functions would be conferred upon them in respect to the nomination of juries, while they would hold their offices at the mere will and pleasure of probably a dominant majority. Then, as regarded compensation provided by the 60th clause, great injustice would be done to the existing town-clerk, who held an independent office for life, and for which he might be deprived of compensation by what was then termed a re-appointment to an office of a very different nature— namely, an annual office, from which he was removable at the pleasure of the town-council.
§ Clause agreed to.
§ On Clause 53— giving the appointment of sheriffs to the town-council.
§ Mr. O'Loghlen
said, that after the intimation given by the noble Lord, the Secretary for Ireland, on a former evening, he now rose to propose an alteration in the clause as originally framed, and intimated his intention of giving up the appointment of sheriffs, and vesting it in the Crown. At the same time, he must confess that he thought it of not much importance, inasmuch as the Committee were aware that by what were called the new rules of Charles 2nd., the Lord-Lieutenant and Council had the power of rejecting the persons elected by the Corporation. The sheriffs by "the rules" were not allowed to serve if disapproved of by the Lord Lieutenant and Council—and such power of rejection virtually vested in the Lord Lieutenant the appointment to the office. There was only one difficult}', arising out of the power of the Corporation to re-elect the same person, and that difficulty was got rid of by the 54th clause of the Bill. He considered that the Bill as it stood would have given the appointment to the Lord-Lieutenant, but as a difference of opinion appeared to exist upon it, he would 432 not oppose the introduction of words placing the appointment in the hands of the Crown, and taking it away altogether from the town-council.
§ Mr. Shaw
would not dwell upon the clause, as the Government had yielded the appointment of sheriffs by the town-council, because the principle was untenable. But he must dissent from the doctrine of the right hon. Gentleman (Mr. O'Loghlen) that the appointment was before virtually in the Lord-Lieutenant, from the power given to him of approbation or rejection, by the "new rules" of Charles 2nd. The truth was, that had been considered a mere form; and the Lord-Lieutenant and Privy Council had, he believed, never been known to exercise it in the rejection of a corporate officer, duly chosen by the Corporation, in whom the election was vested, until the extraordinary and capricious use made of that power by Lord Musgrave, in the case of the Corporation of Cork.
§ Mr. O'Loghlen
was surprised that the right hon. Gentleman, the Recorder of Dublin, forgot the famous case of Alderman James, where three times, successively, the Lord-Lieutenant and Privy Council had rejected the person chosen by the Corporation of Dublin.
protested against the proposed alteration, and said it was quite astonishing that the hon. and learned Gentleman, the Recorder, should be so ignorant of the history of the Corporation of Dublin. Was it possible he should never have heard of Mr. Curran's celebrated speech on the occasion of Alderman James's rejection—or, having heard, could he have forgotten it? At all events, he would venture to assert, that to his dying hour, Lord Clare never forgot that memorable speech; and, above all, he would ask, could the right hon. Gentleman have forgotten Lord Clare's speech in the House of Lords upon the same subject? The new rules decidedly gave a negative to the Lord-Lieutenant and Council, and that veto was exercised in the case of Alderman James. The "new rules" were established for the purpose of excluding Dissenters from corporate offices. Those Dissenters were, in most instances, descendants of Cromwellians, and, therefore, found little favour in the eyes of the minions of Charles 2nd. He regretted exceedingly that Government should have made he concession. The clause as it stood was a good one; and no man could possibly be a sheriff, under the Bill, who was not 433 actually approved of by the Lord-Lieutenant. The Corporation had merely the power to name the officers, but the Government must approve. The Bill also precluded the Corporation from sending the same person back a second time, and, therefore, the Government possessed a veto upon the appointment, which might be looked upon as next to a direct nomination, qualified, however, and, as he thought, wisely, by popular election. He would not, under the circumstances, divide the House upon the subject. He yielded the appointment directly to the Crown; and although he thought it unwise, he should content himself with protesting against the change.
§ Mr. Sheil
said, it must be admitted the concession was a most important one, and one that he trusted would be felt, and have a proper influence, as well amongst hon. Members opposite, as in another place. In Ireland, the Crown practically exercised power in the administration of justice, by striking out the names of all persons obnoxious to the Government who may happen to be called upon to serve as jurors. After the great sacrifice which Government had just made, he did not see how hon. Members at the other side could further continue their opposition.
§ The Attorney-General
said, that the learned Member for Tipperary had referred to what had been the practice in Ireland, but which was so no longer. Since his learned Friend (Mr. O'Loghlen) came into office, the practice of putting jurors aside had been entirely abandoned, and during the late assizes the best results had followed.
§ Sir Robert Peel
admitted that the alteration proposed by the Attorney-General for Ireland was a most important one; but he repudiated the idea of its being effected by way of compromise. It was not a concession to his (Sir Robert Peel's) side of the House; it was a concession to justice: and he gave his Majesty's Ministers credit for the manliness and fairness of the mode in which they avowed their change of opinion.
§ Mr. Shaw
said, that he hoped, after the confident statement of the Attorney-General for Ireland, and the hon. and learned Member for Dublin (Mr. O'Connell), that he, (Mr. Shaw) had been mistaken or ignorant with respect to the case of Alderman James, the Committee would allow him to prove from the Report of the Corporation Commissioners, that his (Mr. Shaw's) view of the case was perfectly 434 correct, and that the two hon. Gentlemen opposite wore the party in error. The case was this—in the year 1790, the two branches of the Corporation, the aldermen and the commons, instead of agreeing in the election of a Lord Mayor, (which alone could make a valid election) differed and nominated different persons. The Board of Aldermen elected alderman James, and the commons, Alderman Harrisson, and each made a separate return to the Lord Lieutenant and Privy Council. The Lord Lieutenant and Privy Council sent both parties to a new election, when the Lord Mayor and Aldermen again returned Alderman James, and the commons, Alderman Harrisson. The Lord Lieutenant and Privy Council sent them back a second and a third time, but the result was the same, and the corporation, for the third time, made the double return of both Aldermen James and Harrison. The question on these double returns was then argued at great length before the Privy Council, and the Privy Council, instead of rejecting, approved of Alderman James—and Lord Clare's speech, to which the hon. Member, (Mr. O'Connell) had alluded, fully explained the ground of the decision, and disproved the assertion of the hon. Gentleman. The Report of the Commissioners on the city of Dublin, page 11, stated, in reference to the casein question, "Lord Clare, in a speech afterwards made by him in the House of Lords, declared that when double returns had been made, it had been always considered as almost matter of course to approve of one of the parties returned, and that by this means the question was put into a situation of being tried at Bar, and that the decision of the Lord Lieutenant and Council was of no authority whatever. If Alderman James's election was illegal, that decision did not affect to legalize it, but merely put it in course of trial before the proper tribunal." He would ask whether he was right in denying, or the learned Gentleman opposite in asserting, that the case of Alderman James was an instance of a due election of the Corporation of Dublin being overruled by the rejection of the individual they had regularly chosen by the Lord Lieutenant and Privy Council under the "new rules? "
§ Clause agreed to.
§ On Clause 60—Officers to receive compensation on removal, being read,
§ Mr. Roebuck
objected to the clause altogether. Was it to be endured that, because a man enjoyed a lucrative office for 435 twenty years, and did little or nothing, he was to receive compensation for it for the rest of his life? He thought the House might leave the question of compensation to the town-council; and if none were given by that body they might rest assured none was deserved.
proposed an amendment to this clause, ensuring compensation to certain persons holding offices under charter in the city of Cork.
§ Mr. Shaw
thought the words of this compensation clause obscure. It did not sufficiently provide for the compensation of officers, who, though they held their offices in form, from year to year, yet virtually held them for their lives, and had many of them abandoned other profitable pursuits in order to accept them. Then, as to the Lord Mayor of Dublin, it did not provide compensation for the loss he would sustain by not having the profits of the Court of Conscience the year after his mayoralty, as now secured to him by the Act of 33rd of George 3rd., eh. 16; also as to the aldermen of Dublin, who not only were to lose their offices and stations. but the Corporation Commissioners had reported that each of them had been 600l. out. of pocket by election to the office. He (Mr. Shaw) considered the case against the Dublin aldermen as one of great hardship and injustice.
contended that there were six aldermen of the wards in Cork who, as Magistrates, were entitled to preside in the Court of Conscience in that city. They were entitled to receive fees— they had a vested right in these offices for life, and were therefore entitled to compensation.
§ Colonel Perceval
called the attention of the Committee to the monstrous injustice that would be inflicted upon the Lord Mayor of Dublin if no compensation were provided for him. The Lord Mayor of Dublin was entitled to act as president of the Court of Conscience the year after he filled the office of Lord Mayor. From this office he derived a sum of about 1, 5001.,and would it be contended, that in consequence of the abrupt termination of systemize that which at present existed, he was to be deprived of compensation for the loss which must arise to him from the passing of the present Bill? The present Lord Mayor of Dublin was an industrious and most respectable citizen, who had reached the distinguished situation which he at present filled with the respect and esteem of all parties [hear]. The Lord Mayor of Dublin was put to great expense in main- 436 taining the dignity of his office, and he mainly depended upon the emoluments arising from the Court of Conscience in the succeeding year to indemnify him for his losses during the year of his mayoralty. It must be, therefore, cruelly unjust to deprive him of compensation.
§ Mr. O'Loghlen
said, that the Court of Conscience was a civil court, and it appeared to him that compensation was promised in the terms of the clause for such a case.
—It is quite out of the question to give this man compensation. He is, forsooth, president of the Court of Conscience, and therefore must get compensation. It is called the Court of Conscience because conscience never enters it. At all events the Bill does not do away with the Court, and therefore he has no claim for compensation. With respect to Mr. Morrison, he was a very good innkeeper, but totally unfit to be elected Lord Mayor of Dublin.
§ Colonel Perceval
—I cannot hear the observations which have just fallen from the learned Member without telling him that the present Lord Mayor of Dublin is respected by every honourable man in society whose respect is worth having. The Lord Mayor has raised himself to the station which he at present fills by his honest industry, and never was accused of living upon money wrung from the most wretched peasantry in the world. This, at all events, was the first time that ever the breath of slander or calumny was vented against him. I appeal to the hon. Members at both sides of the House, whether or no I have exaggerated in the slightest degree when I state that the present Lord Mayor of Dublin possesses the universal esteem of all those who have marked his honourable career through life. should be at a loss to discover why it is that the Lord Mayor of Dublin should be subjected to the attacks of the learned Member, were it not that he had once lauded him as his friend. I remember myself, when the present Lord Mayor was the subject of the learned Gentleman's panegyric, and I myself, when unknown to the learned Member, was present when he lavished the most fulsome praises upon him. It was perfectly true that Alderman Morrison was once in an humble station of life, and it is equally true that he once kept an hotel; but was that a reason why he should have been spoken of in the taunting and disparaging manner in which the learned Member had indulged. 437 I have known the present Lord Mayor since my childhood, and an Hon ester and a purer mind never was possessed by any man.
§ Lord Morpeth
bore his testimony in favour of the respectability of the Lord Mayor of Dublin; but he begged to remind the House, the question before the House was one of recompense for loss of emolument.
§ Mr. Shaw
denied, that any provision was made by the Bill sufficient to compensate the Lord Mayor of Dublin in respect of the Court of Conscience, as the Bill provided that the Mayor was to preside in that Court, and not the Mayor of the year preceding. He could not but say a word in behalf of the truly estimable individual who now held that office, in reply to the unwarrantable attack made against him by the hon. Member (Mr. O'Connell). He (Mr. Shaw) could suggest an additional reason to those urged by his hon. and gallant Friend (Colonel Perceval), for the attack made upon the Lord Mayor of Dublin by the hon. and learned Gentleman (Mr. O'Connell.) It was, that the Lord Mayor of Dublin had been considered as of liberal opinions, and friendly to the cause of the Roman Catholics. It was true that he had kept an hotel in the city of Dublin, but was that any reproach to him? Alderman Morrison had now retired from business, having raised himself by his talents and industry to the highest office in his native city, and having arrived at old age with the good will and universal esteem and respect of every class and denomination of his fellow citizens.
§ Clause agreed to.
§ Clauses up to 82 agreed to.
§ House resumed; Committee to sit again.