§ Mr. M. O'Ferrall
was sorry that a Bill of such great importance, and that touched so materially on the liberty of the subject, should have advanced to its third reading, after having been four months before the House, without any Member of Her Majesty's Government stating any reason for the continuance of this Bill. There was a discussion on the Bill in Committee, but there was none on the principle of the Bill. Since he had had the honour of a seat in this House it had always been usual, when a Bill was introduced relating to the preservation of the public peace, or called for by circumstances of pressing public necessity, that it should be introduced by a statement from a Minister of the Crown, or the recommendation of a Committee. [Cheers.] He was quite aware of the nature of the suggestion which seemed to have been made by the noble Lord to his right hon. Friend. Probably the noble Lord alluded to the fact that when this Bill was introduced by the late Government, it was brought in without a statement being made. In order to remove any impression which that cheer might have made, he would just state that a Committee had been sitting four or five months in the House of Lords, before which evidence of the most important kind had been taken, and at the close of that Committee's sitting this Bill was introduced. With respect to that part of the case, he would postpone it, and endeavour to supply to the House the deficiency in Her Majesty's Government not stating to the House the circumstances under which they asked leave to renew the Bill. For upwards of eighty years, disturbances had existed in Ireland from combinations, and the administration of illegal oaths; they were mentioned by Arthur Young, in his account, of the state of Ireland. In 1761, combinations had reached such a height, that the Irish Parliament 1027 passed a law authorizing magistrates to execute felons taken in disturbing the peace, without Trial by Jury, and the executions under the Act were so numerous, that it was repealed in the ensuing year. This evil existed for a long series of years afterwards, and the most stringent remedies were applied towards it; but what was the course adopted when such evils threatened in this country. At this very moment, there was a most singular and extraordinary combination existing in this country, by which large masses of property were put in jeopardy, and yet who had heard of any instance of Government coming down to ask for extraordinary powers to suppress it? And yet he had never heard the events to which he alluded mentioned by any Member for the counties concerned in them, without the strongest feeling being expressed for the sufferings of the peasantry, and the natural readiness being expressed to make sacrifices, by raising wages, and giving relief through improved administration of the Poor Laws. That had invariably been the course taken by the landed gentlemen of this country. There were no Insurrection Acts, no suspension of the Constitution, nor any of those extraordinary proceedings which were adopted in Ireland. It would not be denied that sufferings of an extraordinary nature had pressed upon the Irish peasantry. In all the trials and inquiries in which those combinations had been discussed and examined, it had never been asserted that they had any political bearing; they had been invariably traced to the pressure of great distress, and to ignorant efforts made on the part of the peasantry to relieve themselves by combination—never to any desire to render the public safety insecure, and thus to afford an excuse for those unconstitutional measures by which Government had vainly attempted to remedy them. He would shortly remind the House of the course of legislation which had been applied to this subject. The present Bill stated in its title that it was to continue certain Acts which were in force, so that unless Members knew what was the law at present they could not know what the Government asked the House to do. By the 50th of George III., passed for the protection of magistrates, and the protection of witnesses, any Gentleman of that House making a geological tour in Ireland, and going about the country, might be arrested, 1028 examined as to his place of abode, and object in coming to the country, and if he did not give a satisfactory answer, the magistrate might require him to find bail, and in default commit him to prison. The only obligation the magistrate was under was to report the circumstance to the Lord Lieutenant, and send him a copy of the examination of the prisoner. This Act remained without alteration up to 1823, and yet, between 1810 and that year, Ireland continually suffered from the consequences of these combinations of illegal societies. In 1823, a period of great temporary pressure, when from the distress of the landed interest, employment for the labouring population was greatly diminished, the Act 4th George IV. was passed, giving power to magistrates, on the evidence of one witness, that a man had tendered an illegal oath, to fine him 20l., or commit him to gaol for three months, or if the magistrate chose to proceed by indictment, to transport the prisoner for seven years. That Act was found amply sufficient from 1823 to 1830. Immediately after the change of Government in that year, very serious disturbances took place in Queen's County, and applications were repeatedly made to Lord Grey to bring in the Insurrection Act, which were in every instance refused. Much discontent ensued among the Irish gentry, and from that time to 1839 the Government was subjected to as serious and determined opposition as any Ministers ever experienced. Men, who ought to have been ashamed of the course they took, impeded that Government in every way they possibly could, and opposed by every means in their power the tranquillization of the country. He had no doubt, in fact, that those Gentlemen might have been indicted for a conspiracy to bring the Government into contempt, had the hon. and learned Gentleman (the Attorney General for Ireland) then been in office. What with meetings in Dublin and meetings in every county and considerable town in Ireland, of those opposed to the Government, at which the most violent language was used, it was as complete a conspiracy to bring law and Government into contempt as ever had been known or heard of. In 1839 a Committee on the state of Ireland was appointed in the House of Lords, and never was a Government subjected to a more sifting inquiry than was the Administration of Lord Mulgrave on that occasion. 1029 Persons of all stations, from the policeman up to the highest judge of the land, were called to impugn the acts of the Government. To such an extent was the spirit of hostility carried, that a paper sent confidentially to a judge was used by that judge as an accusation against the Government. He merely mentioned this as an instance of the extent to which party feeling was carried in these transactions. That which was laid to the charge of Lord Mulgrave's Government was that they had so neglected the maintenance of the public peace as to endanger the dissolution of the bonds of society in Ireland. Mr. Drummond was submitted to a most strict examination, and he proved, first, that the whole attention of Government had been long directed to putting down those societies; that in various places those societies had various objects, that there was no common communication between them, that in many places one illegal society was opposed to another, and in all cases it was clearly established that there was no political object in them. He was asked this question:—Do you consider the law in its present state adequate to the suppression of these societies?The answer was:—We have experienced the greatest dfficulty in acting on the information we have obtained, nor have we succeeded in bringing the outrages of Ribbonism to conviction; but I can hardly go the length of saying that the law is inadequate to the suppression of those societies.In the next question he says that the Attorney General had drawn up various suggestions, which had been laid before Government, and were now under consideration, at the same time stating the great difficulty of framing any legislative measures strong enough to reach these societies, without being liable equally to be applied to any assembly of persons treating of public matters. The alarm expressed by many persons in the south of Ireland respecting these societies determined the Government of that day to introduce the Act 2nd and 3rd Victoria, by which were to be re-enacted the Acts 50th George III. and 4th George IV., and by one Clause of this Bill it was provided that every person who should, after the 1st of September, directly or indirectly, maintain correspondence and intercourse with such society, or with any division, 1030 president, secretary, delegate, or officer of such society, or use any of the signs or passports of such society, or knowingly have in his possession any copy, written or printed, of such society's rules, or of any communication, engagement, or declaration, purporting to be drawn by any society declared to be unlawful by the Act 4th Geo. IV., shall be proceeded against and punished according to the provisions of such Act, and if found guilty be held to be guilty of unlawful combination, and liable to the penalties visited upon it. By this Clause, in fact, the possession of any letter, or similar document, on an illegal subject, made the man as guilty as if he had committed an illegal act. It had been said that this law was introduced without explanation, but it underwent a long discussion in the other House of Parliament, and the Attorney General and Solicitor General of the Government expressed great doubt as to the expediency of granting such powers, and did not seem to wish to be entrusted with them. He thought that made some difference from the case now before the House. This law was passed in 1839, and applied by the Government at the three following assizes, convictions being had in every case, and many of the leaders in the combinations were transported. When the Government asked for powers of the kind which this law had given, he (Mr. M. O'Ferrall) thought they were bound to prove that they had exercised those powers with lenity and with justice, and that they could not carry on the public service without the continuance of this stringent enactment. He now told the noble Lord the Secretary for Ireland, that within his knowledge this law had been shamefully and improperly employed since the present Government had been in office. He admitted that this was a strong charge against the Government, but it was still stronger as against the noble Lord, because, when he contrasted the administration of this law with the spontaneous declarations that were made by the noble Lord on entering upon the Government of Ireland, when he contrasted the noble Lord's conduct with those declarations, he had a double right to complain of the acts which the noble Lord had allowed the agents of the Government to perform. The noble Lord could not, deny that he knew of those acts having taken place, and that, after knowing them to have occurred 1031 in 1842, he permitted the same acts in 1843. He would now proceed to state to the House the facts upon which he made these charges, and he hoped the noble Lord would be able to refute them. They were believed in Ireland, and were believed by him (Mr. O'Ferrall), and he should be most happy if the noble Lord could give them a denial. The first case to which he would refer was a case prosecuted at Armagh, in July, 1843. Mr. Blackburne, the Attorney General prosecuted some men under the provisions of the Unlawful Oaths Act. The approver, on whose evidence a conviction took place, stated that he was arrested in 1843, and that, having offered to give certain information, at the expiration of a short period he was liberated from prison. He then went on to say, that subsequent to his liberation he had made Ribbonmen by hundreds, that he had attended Ribbon meetings, and had concocted with his own hand more than sixty documents; and, in answer to a question by the Attorney General, he stated that he acted under the directions of the magistrates, after his liberation from prison. Cox, a policeman, was next examined, who stated that he had attended a Ribbon Lodge in plain clothes, and that he had there met the prisoners; in fact, it appeared that he attended the Lodge solely for the purpose of corroborating the evidence of the approver. Mr. Whiteside, who was counsel for the prisoners, commented with just indignation on this abominable trial, and on the conduct of the Government for resorting to such practices. And what said Mr. Justice Crampton, who presided? That learned Judge said, that the conduct of the policeman, in attending the meeting in coloured clothes was very "uncommon conduct." He then went on to observe that Mr. Whiteside had made an accusation against the Government, which could not but be viewed as one of a most serious character. He admitted that the charge might have been made unintentionally, and out of the zeal which the learned counsel felt for his client; but he was sure that Mr. Whiteside would retract any insinuation that conveyed a charge against the Government. But what said Mr. Whiteside? "No my Lord, so far from retracting the accusations, I re-assert them." Judge Crampton then observed, that the approver's object was evidently to make criminals; in fact he admitted 1032 that on his cross-examination, and that the conduct of Cox the policeman, was much to be condemned. Had this been the only case of the sort, he would have been the last person to hold the noble Lord responsible; but when the attention of the noble Lord was called to this case, when it must have been reported to him that one of the most eminent counsel at the Irish bar had charged him and the Government with conduct so disgraceful, he thought it would be unworthy of the noble Lord if he did not cause a strict investigation to be made into all the circumstances, and give orders that prosecutions of this description should not take place in future, and that, above all, the system of employing spies, which was reprobated everywhere, and particularly so in this country should not be allowed. He could not say, whether or no the noble Lord was cognizant of the facts to which he had alluded. He should presume that he was not, because when his attention was called to a very minor case by the hon. Member for Louth, the noble Lord immediately directed that an inquiry should be instituted; which seemed to be evidence of the noble Lord's disapproval of the spy system. But, then, if he did not approve of that system, how came it that he permitted it to go on from 1842? Either he must have known and permitted it, or he had so far neglected his duty, that those who acted under him had issued directions upon the subject of which he was totally ignorant. The next case, and he would refer only to the strongest, was that of two men who were tried at Sligo, before Mr. Baron Richards, in 1843. They were prosecuted for having taken unlawful oaths, and the principal evidence against them was that of an approver, who admitted that he was in the pay of the police, from whom he had received 15l. So that here were a number of men employed by the Government, and acting in league with the police, for the purpose of inducing persons to enter into illegal combinations. If there existed at this moment any combination of the peasantry dangerous to the peace, and to life and property, and the Government could tender such evidence as was given before the Committee in 1829, they might come to the House and ask for an Act of Parliament for a limited time. In such case no man would be more willing than himself to entrust them with the necessary powers, 1033 nor should he refuse them the Bill, could he not justify that refusal on the grounds he had stated. There were various opinions as to modes and objects of Government; but he never held but one and that was that the law should be administered with fairness and vigour; but at the same time, so as to convince the people that the object of the Government was to deter from crime, rather than to inflict on them its consequences. He wished to see it administered in Ireland in the same spirit as it was administered in England. The Government in England would not dare to send spies among the people to induce them to commit crimes; and he, therefore, asked the noble Lord why this was permitted in Ireland? It might be said that he was a Member of the Government which passed this law, but it was not to the law he objected but to the abuse of it. It was not stated that the societies to prevent which the law was passed were still in existence, or that any danger was apprehended from them. It was well known that a most dangerous combination against property existed at the present moment in England—that a vast amount of property had been recently destroyed in Suffolk and Norfolk by incendiarism—yet no Act of this kind had been thought necessary for the safety of this country. He was one of those who believed the maintenance of the compact between the two countries was essential for the interests of both, yet if it were violated by acts of this kind, they would be reduced to defend it only on the ground of the impossibility of repealing it, and would do more to undermine the Union than any other agency that could be brought against it. He would, therefore, move, that the Bill be read a third time that day six months.
§ Lord Eliot
said, he certainly did feel great surprise, at the charge which, at the outset of his speech, the right hon. Gentleman brought against the Government, and he had therefore evinced it by the cheer to which the hon. Gentleman had referred. It appeared, that though the Government were charged with acting disrespectfully to the House in not having stated the grounds on which they asked for the renewal of this Act, the original Act had been passed through the House by the Government of which the right hon. Gentleman was a Member, without the least explanation having been offered 1034 respecting it. The right hon. Gentleman said, that the discussion took place in that House because the Bill was founded on a Report of the House of Lords; but he referred to a debate in the other House on the subject. Now, he would call the attention of the hon. Gentleman to a passage in the speech of Lord Duncannon who introduced that Bill into the House of Lords, and explained the nature of its provisions, and the necessity there was for so stringent an enactment—so far from its being founded on the Report of a Committee, the noble Lord stated, that—The subject had engaged the attention of the Government during the last year, and that they had proposed the Bill in consequence of information they had received respecting it. He then only alluded to that part of the Bill which related to the use of pass words, and he should be happy to meet the objection of the noble Lord opposite by inserting the words 'without lawful excuse.'The House would observe, therefore, that the Bill passed through the House of Commons without the slightest opposition, and that even the words "without lawful excuse" formed no part of the original Bill. Those words of limitation were inserted at the suggestion of Lord Ellenborough, a nobleman acting in concert with the present Government. Moreover, when Lord Normanby and the Ministry of that day were told they did nothing to prevent these illegal societies, until the Report of a Committee of the House of Lords forced upon them the adoption of this measure, the charge was indignantly repulsed. He found that Lord Normanby said,The noble Lord opposite had taken credit for the Committee as having caused the Government to propose this Bill; but, in fact, it had engaged the attention of the Attorney General for a long time before he left Ireland; and that when that, learned Gentleman was Solicitor General, he had stated to the House of Commons his intention to introduce such a Bill.He (Lord Eliot) asked, therefore, what ground was there for the hon. Gentleman's statement, that this measure was forced upon the late Government by the evidence of a Committee; and whether the knowledge of these facts might not well excite astonishment in his mind, that, the hon. Gentleman should charge the Government with not having explained their reasons for asking so limited an extension as one year for this Bill. With respect to 1035 the nature of the measure, the hon. Gentleman had fairly stated its provisions. Every man in the least acquainted with the history of Ireland for the last fifty or sixty years, must deplore the existence of secret societies, as one of the greatest curses of that country. It was for the hon. Gentleman, therefore, to show that the state of Ireland at this moment was such as to call for a relaxation of the existing law. The hon. Gentleman was placed in this dilemma. He must either admit that Ribbonism had decreased under this Act, and consequently, that it had been effective, or that it still prevailed—and consequently, that the Executive ought not to be deprived of the powers in this Bill. The hon. Gentleman said, these illegal associations were only to be found when the greatest distress prevailed amongst the people. This, however, could not be said of Leinster, or Ulster, and in Cork. He thought it would be found that these distressed districts were the parts of Ireland in which alone these societies did not exist. The hon. Gentleman should not attribute them to the distress of the country, but to the machinations of designing men, who endeavoured to induce the peasantry to join them for the worst of purposes. He believed, therefore, that no measure consistent with justice could be too strong to put down such combinations. The hon. Gentleman had quoted one or two cases, in which it appeared the approver was a man of bad character; but he asked the hon. Gentleman himself, how the existence of secret societies was to be discovered, except by means of approvers? It was quite clear they could not test the value of a man's evidence until he had been subjected to a searching cross-examination in a Court of Justice; and the hon. Gentleman appeared to forget that the evidence of an approver must be corroborated by that of other witnesses. [Mr. M. O'Ferrall: Not in one of these cases.] But that case had been visited with the displeasure of the Government, and the constable Olge, who had endeavoured to induce men to commit crime, had been dismissed, and was since committed to gaol for his illegal conduct. If this Act were not renewed, parties would be subject to the same penalties under the general Act against illegal combinations, and the evils so much deprecated would still exist—namely, the inducement to parties, for the sake of reward, to come 1036 forward and give testimony against their associates. The hon. Gentleman had attempted to draw a parallel between the cases of England and Ireland. But surely the incendiarism in Suffolk and Norfolk could not be compared with the secret societies which were the subject of this Bill. No new enactments were necessary to punish these crimes, if the perpetrators were detected—the law was already sufficiently stringent for that purpose. But if secret societies existed to the same extent in England as in Ireland, there would be no hesitation on the part of the Government to introduce a measure to put down such mischievous combinations. He thought he need not say more on this subject than to repeat the opinion he had distinctly expressed in the discussion in Committee, to which the hon. Gentleman had not adverted—namely, that the continuance of this measure, for a limited period, was absolutely necessary. In consequence of the objections of the hon. Gentleman, he had taken the opinion of those best qualified to judge on the subject, and had come to the conclusion, that it was the duty of the Government to press for the renewal of the measure in the shape that it lay on the Table. His impression was, that the right hon. Gentleman was as convinced as any man who now sat near him (Lord Eliot) of the necessity of continuing the measure in its present shape. The right hon. Gentleman, with a great deal of ingenuity, had called upon him to state what was the opinion of the right hon. Gentleman the late Attorney General for Ireland. He had stated what his impression was; and if the right hon. Gentleman had reason to believe that this impression was erroneous, then he must cease to rely upon the expressions of that right hon. Gentleman. He (Lord Eliot) believed, that the Government of 1839, of which the right hon. Gentleman the Member for Kildare formed a part, would not have introduced a measure which had been denounced as arbitrary, tyrannical, and unconstitutional, without due consideration, and without being convinced of its necessity. He was not aware that there was any alteration in the circumstances and present state of Ireland which would justify Her Majesty's Government in throwing aside that power which had been committed to their hands by a law introduced by the late Government. Whatever had been the difficulties of their 1037 position, or the crisis in which they had been placed, they had been content to rely upon the powers entrusted to them by their predecessors; but, at the same time, they did not think it consistent with their sense of duty to abandon or to relinquish any of those powers. Under these circumstances he should persevere in moving the third reading of the Bill.
§ Mr. R. M. Bellew
believed that if the Government which originally introduced the Bill of 1839 had the carrying of it into execution, they would have acted in the true spirit of the intention of the Legislature; and therefore what had been said by the noble Lord as to the late Government having brought in the measure had little weight with him. He thought the propriety of the Bill when first introduced mainly depended upon who were to be the parties by whom it was to be administered. The subject of the administration of the law in Ireland had been under the consideration of the House in two or three different shapes during the present Session. It had been before the House in the case of the Special Jury Lists on the late State Trials, and although it might be said that that related to the question of the formation of juries, and not to the administration of illegal oaths, yet it was nevertheless a case as to the administration of justice; and when arguing as to the conduct of the Government with respect to the formation of juries, they might very fairly go on and argue as to how the Government would act in the prosecution of the present law. Within this very fortnight, by a return which had been made to the House of a list of the persons competent to serve as jurors in his district, it appeared that not less than 647 Catholics were qualified to serve, while the number of names on the panel was in one year only thirty-seven, and in another year forty-three. The Attorney General for Ireland had said, that he would watch with jealousy how this Bill would be put into practice, but when he considered the statements made by the right hon. and learned Gentleman in the early part of the Session, during the protracted debate on the state of Ireland, it induced him to be very cautious how he received the assurances of the right hon. and learned Gentleman. The statement was this:—He would give an instance of the way in which Gentlemen opposite had acted in the 1038 administration of justice when they were in power. A Gentleman named Pearce, a chief constable of police, of high character and respectability, was stationed in the town of Carrick-on-Suir, in Tipperary, when it happened that a quarrel arose between the men of a company of infantry who had just inarched into the town, and some others who were already quartered there. One of these parties was joined by the townspeople, and a most formidable riot ensued, which finally compelled Mr. Pearce to order his picket to fire upon the rioters. The consequence was, that a boy named Slattery lost his life; Mr. Pearce was put on his trial for life at the ensuing Clonmell Assizes, where he (Mr. Smith) was present, and where the right hon. Member for Dungarvon prosecuted Mr. Pearce for murder. Now, what was the course pursued by that right hon. Gentleman when the life of a fellow-creature was at stake? He could prove that every thing he asserted was true, and could give the names if necessary. Well, how had the right hon. Member acted? Why, he had set aside on behalf of the Crown thirty-six jurors, and of the first thirty so set aside there were twenty-nine Protestants. That was an incontrovertible fact, and he threw it out for the serious consideration of the right hon. Member whether he could ever have laid down his head in peace if that Gentleman had been convinced by such a Jury? He stated facts correctly; he defied contradiction; and in a case where a prisoner had a right but to twenty challenges, the Crown, under the auspices of the right hon. Member for Dungarvon, had struck off thirty-six persons, of whom twenty-nine were Protestants. And these were the parties who considered themselves justified in telling him that he durst not strike off any person from a Special Jury List; or as, indeed, that extraordinary assertion had been now qualified, 'unless a sufficient cause was shown.'Now, what was the fact? The mere letter of the statement was true, but the spirit of it was not true. The object, on that occasion, was to secure an impartial jury; and how was the Jury composed? There were seven Catholics and five Protestants. Then there was the case of the State Trials, with respect to the Jury Lists, which had not been explained to this day. It was extraordinary that all these unlucky accidents should have occurred under the present Government, and which never occured under the last. But it must be borne in mind that the magistrates, especially of Ireland, were not educated to the law, as in other countries, and therefore they, in reality, were not held responsible for their mistakes. If they made blunders, they were generally borne harmless. The Government generally 1039 seemed to deal leniently with them in their misdoings. Again, in Ireland, public opinion did not act so strongly upon the conduct of the magistrates as in this country. If in this country any partiality should appear to be shown in the administration of justice; it was immediately made the subject of public animadversion. In the case of Mr. Kenrick, a magistrate who was accused of having acted oppressively against a poor man, an inquiry was instituted, on the Motion of the present Lord Denman, by the House of Commons, and the offending party was punished. Again, in the case of some oppressive act committed by Lord Grantley against a certain cottager named Hunter, not only was legal redress given, but the Times newspaper teemed with remarks in a sense calculated to show that the power of public opinion was sufficient to correct the misconduct of magistrates in this country. But what was the case in Ireland? Often it happened that a prisoner was brought before a tribunal which was opposed to him both in religious and political feeling. His jury was perhaps selected by a partisan Sheriff, and he was tried by a Judge who might already have pronounced an opinion that he was not to be believed on his oath. More than one Judge in Ireland had expressed such an opinion. Therefore it was necessary to be more cautious in regard to the power given to the officer of the Crown in Ireland, inasmuch as there was not the same force of public opinion in that country to correct any hardship in the administration of the law as there existed in this. They (the Irish Members) had been told by their constituents that they had no business to be in that House. He and his hon. Friends (the Members for Ireland) had given the best consideration they could to that opinion, and they felt that they ought to be present and discharge their duty to the extent of their ability. But he was fully sensible that every day's experience showed that their influence was waning, and each succeeding effort on their part deprived them of the ardour with which they would act could they entertain a hope that the House would incline to measures favourable to their country. It was true that the present measure was not of any very great magnitude, but it was one which showed the tendency and views of Her Majesty's Government. Small as would be the concession if the 1040 Bill were abandoned, still it would be a matter calculated to give satisfaction to the people of Ireland. It did appear to him that, with regard to illegal associations, there never was a time when such a Bill as this was less required. Such was his sincere opinion, and he therefore hoped Her Majesty's Government would not press the measure.
§ Mr. Sheil
said, that he was sorry that his hon. Friend (Mr. Bellew) should have made reference to what had been said in a former debate respecting circumstances which had occurred fifteen years before. His (Mr. Sheil's) great objection to this Bill was, that it furnished to informers an opportunity to carry on their vocation, which, but for this Bill, they would have no means of doing. Up to the year 1839 this Bill was not found to be necessary; but in that year the late Attorney General for Ireland brought the measure forward, and it was passed into a law. The Tories select the Whigs as a pattern and as an example: if the Whigs have ever proposed an arbitrary measure, they are chosen as a model, while their liberal legislation, is pointed at only as an example to deter from imitation. The Bill introduced by the Whigs in 1839 was only enacted for a period of five years. Those five years had expired. The noble Lord had said that this Bill was either necessary in order to suppress illegal associations, if they existed, or to prevent such associations from again arising if they did not at present exist. This was re-enacting the part of the Physician in the "Malade Imaginaire," who said that if the dose had not operated it should be repeated, that it might be more efficacious; and that if it had operated, it should be repeated in order to keep the patient in good health. But the great objection to the Bill was, that it furnished opportunities for the employment of informers and spies. When the right hon. Gentleman the Member for Clonmel (Mr. Pigot) brought in this Bill, he said it was a measure which was certainly liable to abuse; but the cases which had been adverted to by the hon. Member for Kildare had established beyond dispute that the Bill was not only liable to abuse, but that it had been productive of abuse of a most signal kind. It was actually remarkable that the noble Lord, the Secretary for Ireland, should not have adverted to the case which occurred in the county of Armagh in 1842. He (Mr. 1041 Sheil) did not think it necessary to enter into details, but it strongly tended to illustrate the abuses to which this law was liable. In that case, after information had been given by a man named Fagan to the police, he was sent back amongst the people to act as if in concert with them; and this was done by the cognizance of men in authority, although not of the Government; he (Mr. Sheil) did not think they would wilfully direct that such a plague spotted villain as Fagan should be sent to seduce the people into the commission of crime, in order that they might become his victims. This informer had been employed by persons in authority to act as a seducer of the people into the commission of crime. This was proved. [The Attorney General for Ireland: It was merely a report.] The right hon. Gentleman said that it was merely a report; but surely the right hon. Gentleman could not doubt that the whole of the case was accurately reported. [Lord Eliot: The man Fagan was dismissed.] He was dismissed. Of course the moment the Government found out what was the conduct of Fagan they dismissed him; but how often it must happen that such atrocities must continue undiscovered? They knew that Ireland was fruitful of informers, and knew, furthermore, that there was a tendency on the part of the police force to resort to such expedients. It might be answered that there was no such tendency; but had they forgotten that in the town of Kilkenny a person high in the constabulary employed a policeman to go to a printer to induce him to print a placard, in order that, he might prefer a charge against him, after he had complied with his request? While they had this knowledge of the tendency of the police authorities was it a wise thing to insist upon such a power as this? What was it they were doing? They were by this Bill making that a crime which ought to be only the evidence of crime. Before the year 1839 the finding a document in the possession of a person accused was not in itself a crime; but it was evidence of a crime, to be taken into consideration by the jury. But by this Bill the moment a person was found with a document of this kind in his possession, that instant he was guilty of a crime, not by the common law, but by this statute. They ought to be very wary of enacting a statute which they knew to 1042 be at variance with the principles of the Constitution. They never, in this country, had had recourse to an Act of Parliament which opened the door so widely to nefarious practices as this Bill would do. Let the two countries be put upon perfect equality; let them have the same laws, administered in the same spirit.
Mr. T. B. C. Smith (Attorney General for Ireland)
said, the hon. Member for Louth had acted unfairly and unjustly in having brought under the consideration of the House a matter which had been discussed a few evenings ago, and also at an early period of the Session. He had not spoken the other evening on the question, because he expected the debate would have been continued by some legal person on the other side of the House, to whom he could have replied. He was prepared to speak on Monday, and would have spoken had any legal Gentleman on the other side addressed the House on the law of the case. He put it to the House whether it was fair or just to refer to the subject this evening. Now, with reference to the Bill under discussion. He thought the right hon. Gentleman had unfairly confounded the characters of the spy and the informer, which were widely distinct from each other. And although a Government could not hope to prosecute to conviction a member of a secret society without making use of an informer, he would for himself tell the House he was the last person who would advise the Government to make use of a spy. It was not his the (Attorney General's) wish to justify any improper proceeding on the part of the police or of informers; and he would now distinctly state that if, after a man had given information to the police, he was sent back among the people to entrap persons into the commission of crime, there was not a person in the House more ready than himself to denounce such conduct as most unwarrantable and most unjustifiable, and he would most distinctly say that the law officers of the Crown ought not to use any such information. But the case of an informer was altogether different. The hon. Member for Kildare had adverted to a case in the county of Monaghan, in which he stated that a spy was employed. He (the Attorney General) did not think that any spy was employed in that case. The Judges in Ireland had put a strict construction upon this act. They did not think that if passwords were found in the pockets of individuals, purporting to be 1043 passwords of Ribbon Societies, that alone was sufficient evidence of their being such in fact. This being the construction of the law, it was obvious that the Crown could prosecute no person whatsoever without examining an informer who could prove that the passwords found on the individual were the passwords of some illegal society. Lord Plunket, when Attorney General for Ireland, in opening a prosecution against certain parties for a conspiracy, admitted that it was impossible to sustain a prosecution of that description without availing themselves of the evidence of informers. This occurred before the 2nd and 3rd of Victoria; but there had been a prosecution conducted since that Statute by the right hon. and learned Member for Clonmel (Mr. Pigot) who introduced this very Bill into Parliament. The case was that of the Queen against Jones, tried in 1840. On that occasion the right hon. and learned Gentleman pointed out the difficulties of prosecuting under the 50th George III., and the 4th George IV., and stated that it was necessary in order to attain the ends of justice to have the evidence of an accomplice. The right hon. and learned Gentleman here referred to the evidence taken on that occasion with a view to show that in the opinion of the late Attorney General for Ireland (Mr. Pigot) it was absolutely necessary for the Crown to avail themselves of the evidence from informers, whatever might be the character of the persons giving that evidence. He (Mr. T. B. C. Smith) would give the House a specimen of the informers produced by his right hon. Friend (Mr. Pigot) in the case of a man—one of the most depraved individuals, perhaps, ever examined in a court of justice—who was called as a witness in the case of "The Queen v. Jones." This abandoned villain, by name Edward Kennedy, admitted on cross-examination that he had been a Member of the same Secret Society as the prisoner, but had dropped it for two or three years, and then joined it again. He stated he was a man that had a quiet conscience, though he recollected the murder of Gahan, and that he dogged him to the scene of his murder. Though so long in the society he could not tell what were its objects. That in the affair of Rooney's murder, in the County of Kildare, he recollected he was walking on the canal, when it happened about two miles off, perhaps; only taking a walk, he supposed. When asked, "Upon your oath were you 1044 not in the plot to murder this man?" he made no answer. "What sort of a weapon had the man who you say you saw, and afterwards killed him?" The witness said that he could not remember, in fact, he was full two miles off when Rooney was "slated." Every part of this cross-examination went thoroughly to establish the inference that he was present, if not the actor in the murder. He had gone thus far into this frightful history of the man, in order to show how little delicacy there was as to the sort of agent, or accomplice, employed by the late Government, when they wanted to obtain, very conscientiously in their own opinion, no doubt, a conviction of a participator in such secret societies, whatever they affected to think now. No person entertained a stronger opinion than he did against the employment of persons properly called spies; the testimony of a man who had endeavoured to entrap others into the commission of crime ought not to be received; but it was quite impossible to arrive at evidence respecting secret societies without the aid of accomplices. He admitted at once that the provisions of the Bill ought to be enforced cautiously, especially as regarded Ribbonmen. With reference to what had fallen from an hon. Member, he must say that the late Attorney General was incapable of being a party to the conviction of an innocent man. With regard to the case referred to, viz., that of Ogle, the policeman, he maintained that Ogle would have convicted under the 5th George III., even if this Act had not been allowed to expire. The Monaghan case had been alluded to; but he was not conversant with the particulars of that case. He was not aware whether the man was convicted [Mr. Sheil: He was.] Now, with regard to this Bill, in 1839 it passed through all its stages without giving rise to any observations or objections from any hon. Member opposite, and therefore he trusted that the hon. Member would withdraw his Amendment, and consent to the third Reading of the Bill.
The O'Connor Don
trusted, that in future the Irish Government would be disposed to repudiate information derived from such polluted sources as spies and informers. It generally happened that parties who had been informers were continued as spies, and employed themselves in circulating sedition among the people in order to make their occupation seem necessary. In the case of an informer of the name of Kane, in Sligo, he had sworn that he lived solely 1045 by labour, but when hard pressed, on cross-examination, he had admitted that he had at various times received sums of money from the police, and finally that he was entirely supported by that body. The Crown lawyers were so ashamed of their witness that they abandoned the prosecution in disgust; yet two persons had been previously transported upon the evidence of the very same man. Another case had occurred in Roscommon, when the rev. Mr. Day was shot at; and it turned out that the man who fired had been an informer, and probably wished, in this instance, to charge some innocent parties with a view to establish his own value and importance. He was not at all disposed to withhold any unnecessary power from the Government, but he wished to impress upon the House that the life of the poorest man ought to be as dear to his country as that of the richest. If greater facilities were given to assail the life of a poor man than a rich one, he would not entrust them to one party or to the other—neither to Whig nor to Tory. Certainly nothing could be more easy than for pass words to be put designedly into a man's pocket, and for him subsequently to be convicted for having them in his session.
§ Sir R. Peel
would be very sorry if any misconstruction were to go forth as to the opinions and principles of Government on the subject of the employment of spies and informers. He believed that there was really no difference of opinion upon either side; but in this country, as well as in Ireland, to reject entirely the evidence of informers would sometimes defeat the ends of justice. During his long official connection with Ireland some aggravated cases of murder had occurred, in which the evidence had been chiefly derived from accomplices; he remembered one in particular, the murder of Mr. Baker, where a reward was offered to any party who would give information, but the man who actually fired the shot. An accomplice came forward, who had not indeed fired the shot, but concocted the whole scheme, and who gave evidence against five others, who were convicted. That witness was paid 2,000l. for his treachery, and he actually instituted, or threatened proceedings against the Government for not giving him 4,000l. As to spies, if any Government employed a man in order that he might invite persons to commit crimes by entering into secret societies or otherwise, all he could say was, 1046 that the Members of that Government deserved to be exposed to as severe a punishment as the parties whose conviction they had endeavoured to obtain. Nothing could be more dangerous or digraceful, or more calculated to weaken the arm of justice. In the case of informers, he was most ready to allow that the utmost caution ought to be observed; after an informer had thus recommended himself, there had certainly existed, a disposition to continue him in employment. The man, of course, wished to make himself of importance, and to show his value, and it was necessary, therefore, for Government always to be on its guard against false information. These were the principles on which Ministers meant to act, and all subordinate police agents in Ireland ought to know that they never would for a moment countenance any attempts to incite to crime. If the police encouraged such attempts, they would never meet with support from persons in authority. This determination could not be too strongly stated, and upon it his noble Friend (Lord Eliot) would constantly act. Government reprobated most strongly the employment of spies, of persons performing analogous functions. All that was now proposed was, the continuance of this Act for another year, and Ministers admitted the necessity of closely watching the administration of the law. When the possession of certain pass words or insignia was made a crime, it was impossible to be too careful. In the interval between the present time and the expiration of the Bill upon the Table, the subject would undergo most serious consideration, with a view to the adoption of measures of additional caution. While the law remained in force, he assured the House, that nothing which vigilance could accomplish should be omitted. He was always sorry when Government felt called upon to come forward to continue an Act of this kind; and he was sorry, too, when hon. Gentlemen opposite held up others as enemies of the liberties of Ireland, and as taking a course injurious to the maintenance of the connection between the two countries, merely because they followed an example that had been set them. What were the facts? The predecessors of the present Ministers had brought in the present Bill and when they were at any time charged with indifference to the peace of Ireland, the late Government said, "Look at the Act we passed against unlawful oaths." When it was stated, in reply, that it had been introduced in consequence 1047 of the Report of a Committee of the House of Lords, they repelled the imputation indignantly, and maintained that it had long been in contemplation — that it was their own spontaneous act, and they, therefore, claimed all the credit due for the measure. Well, they got the credit of it; it remained in force for five years, and now the present Ministers proposed to continue it for one year more. What was the consequence? A number of flaming patriots started up on the other side of the House, and charged Ministers with tyranny and oppression towards Ireland. Under these circumstances it became necessary that the truth should be known; and the truth was, that in 1839 this very Bill was permitted to pass through the House of Commons without a single word from a single soul. He held in his hand the Parliamentary record of the proceeding, and he there found it in the smallest print, and without the name of a Member who took the slightest interest in it; the Unlawful Oaths Bill was brought in, read a first and second time, committed, reported, and read a third time and passed, without any observation; and even the name of the measure was only to be found by consulting the index to the volume. Not one of the hon. Members opposite, now so warm and indignant, took the trouble to make the slightest remonstrance or objection. It was not to be forgotten, also, that when the Bill was originally under discussion in the House of Commons the words "having lawful excuse," which exempted the party accused, were not in the Clause; they were introduced at the instance of a Member of the Conservative administration. Observing the opportunity offered for inserting a precaution against the punishment of an innocent party, that Conservative Member had proposed an Amendment which had never occurred to the framers and promoters of the measure. If there were any mitigation in the Bill, any security against punishing the innocent, it was entirely owing to one who had been a Member of the Conservative Government. This was the second time an occurrence of the kind had happened, for the Irish Arms Bill was allowed to pass without observation when it was brought forward by the late Government. Ministers now recommended the continuance of the Unlawful Oaths Act, and, after credit for its original introduction had been claimed by their predecessors, hon. Members suddenly stood forward as the champions 1048 of Ireland, and insisted that it was an intolerable act of injustice to that country, and that the present Ministers only were responsible for it. This course might seem fair as a matter of party warfare, but it was neither fair nor wise to add to the prevailing excitement in Ireland, by imputing intentions which those who now opposed the Bill could hardly be serious in supposing were entertained. Two hon. Members, in somewhat pathetic terms, had adverted to their own situations, and no one could give them more credit than he did for risking the attempt to stem the torrent of Repeal; but when they made their forcible appeal they ought to be reminded of their entire silence when the Bill was brought forward in 1839. He entreated them to remember, that precisely the same objections then existed as at present, and that then they were unhesitating supporters of the measure. He admitted, without reserve, that the great object of statesmen ought to be, to render the criminal law of England and Ireland substantially the same. Whenever stay distinction was made, a valid reason ought to be offered for it. What he complained of was, of an attempt to raise what he considered an unjust clamour against the present Ministers for taking a course which was just as open to objection when it was adopted by the late Ministers, but to which not the slightest objection was made. He would only repeat that in the interval all the provisions of the Bill should receive most serious consideration, and that no vigilance should be spared in order to prevent the occurrence of abuse.
§ Mr. Morgan J. O'Connell
observed that those who now resisted the further progress of the Bill did so upon distinct evidence that its provisions had been abused; and if he thought the caution of Government would prevent it in future, he for one would not divide against the third reading. He trusted that the substance of what the right hon. Baronet had said would be conveyed to the police in positive instructions, for he feared that there were not a few Ogles among the constables. He would support any measure for putting an end to secret societies; and after the excellent speech of the right hon. Baronet, perhaps it would be better not to divide.
§ Lord Eliot
explained that it was the most anxious wish of the Ministers so to modify the Bill as to make it as unobjecionable as possible.
§ Dr. Bowring
felt much gratified by the speech of the right hon. Baronet, who had given so benevolent an interpretation to the Bill. He trusted that in future both sides would agree that legislation for Ireland should be of a different character to that which had emanated from all parties when in power.
§ Mr. M. O'Ferrall
was quite satisfied with what had been said by the right hon. Baronet, and apprehended that his speech would be more effectual than any division. He suggested that the punishment should be changed from transportation to imprisonment, in order that if it turned out that a convicted party were really innocent, he might be discharged.
§ Sir R. Peel
promised that no pains should be spared to sift every case, and urged that the punishment of transportation would afford an additional motive for caution.
§ Amendment withdrawn. Bill read a third time and passed.