HC Deb 05 September 1844 vol 76 cc2002-10
Mr. T. Duncombe

I was not aware that the question I asked was an improper one, or would cause so much ridicule and laughter from noble Lords and right hon. Gentlemen opposite. A noble Lord holding a high office in Her Majesty's Councils—the Colonial Secretary of State—suddenly quits this House. A Member gets up and asks whether he still retains his post, and the right hon. Baronet is facetious at my expense, because I inquired whether the noble Lord's retirement from this House would create a vacancy in Her Majesty's Councils. I still think that was a legitimate question; but I have another question to put. I am about to make a Motion, which I think so reasonable and so just, that I hope the right hon. Baronet will offer no opposition to it. I know that the Black Rod is about to knock at our door, and therefore I will not take up much of your time, as I should wish to have done in making those observations I think necessary on the present occasion. I wish to move for a copy of the opinions delivered by the Judges in the House of Lords, on the questions propounded to them in the case of "O'Connell v. the Queen," together with a copy of the notes taken by the short-hand writer appointed to report the judgments and proceedings thereon in the House of Lords. The opinions of the Judges have already been laid on the Table of the House of Lords, printed, and are in general circulation. There can, therefore, be no objection to their being communicated to this House. With respect to the judgments, I understand that a short-hand writer was officially appointed to take them down. I am quite sure whenever they are seen, if correctly reported, as I have no doubt they are correctly reported, by the public press, some of them will redound greatly to the credit of the noble and learned Lords who delivered them. With respect to one in particular, I mean that pronounced by Lord Denman—it ought to be laid on the Table, and printed in letters of gold. We all recollect what occurred at an early period of this Session. We recollect the vapouring that took place about "convicted conspirators," and the credit the right hon. Baronet opposite, the Secretary of State for the Home Department, took to himself for bringing these convicted conspirators to what he was pleased to call "condign punishment." But now it turns out that the "convicted conspirators" are no con- spirators at all; and the "condign punishment" turns out to be the grossest cases of false imprisonment ever perpetrated against any individuals. I was taunted by the right hon. Baronet (Sir J. Graham) for having been advertised as chairman of a dinner to be given to one of the convicted conspirators; but I felt, in common with my countrymen, that the whole of these proceedings were disgraceful and contemptible. They were a disgrace to the Government, and particularly to the Home Office, where it is believed they were concocted, and to the Court of Queen's Bench in Dublin, where they were enacted. There appears to be no doubt of that fact whatever. And when I think of all the unfair advantages which the Government took of Mr. O'Connell and his companions in prison—when I recollect their fraudulent Jury List, the packing of the Jury, the partizanship of the Judge, the employment of spies, and the subornation of reporters, I rejoice to know that the matter has ended as it ought to end—to the disgrace and defeat of those Gentlemen I now see opposite, the original concoctors of those proceedings, and conspirators against the rights and liberties of the Irish people. I cannot but condemn in the strongest terms the precipitate manner in which the Government have acted in actually imprisoning those gentlemen for three months. I have called the case one of the grossest instances of false imprisonment; from the beginning to the end it has disclosed a vindictive feeling on the part of the Government, and party malice against individuals. When a measure was submitted to suspend the execution of the sentence till the validity of the judgment was ascertained, it was rejected for the very reason that it might be favourable to Mr. O'Connell. This looked like a vindictive spirit on the part of the Government. And the country has a right to know what is to be looked for with respect to Ireland—what reparation is to be made to the Irish people for the gross insult which has been offered to their leaders—on what their hopes and their affections are to rest. The cause of repeal has been promoted by the course taken by the Government, and it has received a new impetus which it will be difficult to counteract. An impression prevails even among Englishmen, that they would, if Irishmen, be repealers. Ireland has been insulted in a manner she will not easily forgive, nor England easily forget. The Returns I now more for will be ready, I hope, by next Session, when I trust, whatever majority the Government may have, there may yet be sufficient independence in the House to induce an expression of feeling as to the baseness, the illegality, and the injustice of the incarceration of those who have thus been unlawfully imprisoned.

Mr. Otway Cave,

in seconding Mr. Duncombe's Motion, congratulated both England and Ireland on the great event of yesterday—an event immeasureably superior to any party triumph, and but for which Trial by Jury might have become, instead of a safeguard to the innocent, an instrument of Ministerial oppression, a delusion, a mockery, and a snare. He was not without hope that this reversal, by the highest Court in these realms, of one of the most illegal and unconstitutional verdicts ever recorded, might soothe the justly irritated feelings of the Irish people, that it might show them that, even under a Tory Government, the attainment of justice even for them was not altogether impossible, and that the dignity and purity of English law, in spite of political or personal influences, could triumph over any conspiracy of men in power against their rights and liberties attacked in the person of their leader. The conduct of the Judge, the composition of the Jury, and all the unworthy and pettifogging tricks which had been resorted to, to obtain a conviction against Mr. O'Connell, were too well known throughout Europe to need any further comment from him; one remark, however, he must make on the species of sanction given by the Head of the Government to the principle acted on in open Court by his Irish Attorney General—that, namely, of taking the law into his own hands, and appealing to force instead of argument or authority. It was his duty to inform the right hon. Gentleman that the consequences of such conduct passing unreproved by him might be most calamitous in a country so peculiarly circumstanced as Ireland, and where, above all things, it was necessary to inculcate obedience to the law. He therefore greatly lamented this omission, as he feared that the example alluded to might be but too readily imitated and considered by the Irish peasantry as a sanction for what was called the wild justice of revenge. The decision of the House of Lords having for the moment saved the Government from the consequences of their ill-advised and unjust conduct, he implored the right hon. Gentle- man to avail himself of this golden opportunity for the commencement of a wise and generous policy towards Ireland. Three years ago in that House he had received, as he considered, a pledge from him that such should be adopted; he had warned him of the dangers of a contrary course, and he could only lament that the pledge had been unfulfilled, and the predictions realised. He now again implored him to retrace his steps; but whether he did so or no—whether he chose to attempt to govern Ireland by partisan Judges and packed Juries, and by the brute force of a majority in that House, or by redressing her enormous and admitted grievances, it was his duty again to tell him, and the country through him, that with all the fleets and armies at his command, although even now he might conciliate, he never could reconqu Ireland.

Sir R. Peel

Sir, it would be very inconvenient if, under the circumstances in which the House is now placed, we should be drawn into a discussion on what has recently occurred—a discussion in which I must be interrupted before I had concluded my observations. But at the proper opportunity I shall be perfectly prepared to vindicate the course the Government has pursued. The hon. Gentleman (let me remark) has certainly overlooked the fact that seven out of nine of the English Judges affirmed the judgment of the Court below. As to the accusations about packing Juries, I shall not be provoked to enter into any partial discussion of these charges. I content myself with declaring, that whenever the fitting period arrives I shall be prepared to vindicate the course taken by the Government in vindicating the authority of the law by an appeal to the ordinary tribunals, asking no extraordinary power, though at a period of admitted danger—appealing to the law alone for a remedy to the evils with which we had to contend. As to the particular Motion proposed, I certainly have no objection to it, and should be happy if the Message to the Lords for the papers required could be sent now; if not, I give an assurance, which the hon. Gentleman may depend on, that nothing shall prevent the communication being sent at the earliest time possible. I was sorry to hear the allusions of the hon. Gentleman to the conduct of my right hon. Friend the Attorney General for Ireland, after his expressions of frank regret, which I think set him completely right in the feeling and opinion of the House, and ex- torted from political opponents the admission that into whatever error he had fallen (under provocation which, perhaps, few men could have withstood), no more need be said upon the subject, after his ample acknowledgment of that error. Sir, with respect to the accusations now uttered, nothing can be more easy than for Gentlemen to deal in such harsh expressions as to the conduct of Government. I utterly deny—I emphatically deny—the charges implied in this harsh language; but on the present, which I feel is not the proper occasion, I shall not enter into the subject, which at a fitting opportunity I shall be quite ready to discuss.

Lord John Russell

I feel equally with the right hon. Baronet the inconvenience of entering at this moment into a discussion upon the recent judgment of the House of Lords. But I must, after what the right hon. Gentleman has said, re-assert the opinion which I formerly expressed. After what the right hon. Gentleman has said of the conduct of the Government, I must, I say, re-assert my own opinion, more than once expressed in this House, that the trial of Mr. O'Connell and the other traversers in Ireland was not such a trial as could give an impression of the fairness and justice of the Government. I shall be ready, therefore, whenever the right hon. Gentleman shall introduce the subject, to enter into the discussion, strengthened and confirmed in my own views by the opinion which has just been pronounced by the House of Lords. If the right hon. Baronet had merely and fairly resorted to the law—if he had given to each person accused the full benefit of Trial by Jury as it is administered in England—I should not have blamed the Government for their course; but that which I then said, and which I think more strongly now, is, that the trial was not a trial by a fair jury, but one elaborately put together for the purpose of conviction, and charged by a Judge who did not allow any evidence or consideration in favour of the traversers to come fairly before his mind, but who charged far more violently than the Attorney General had accused, thus acting towards a prejudiced Jury in such a manner as to prevent due justice being done to the people of Ireland as it was done to the people of England. I trust that the effect of these proceedings will be, that no example of such a trial will again occur, but that hereafter the people of that country may enjoy the benefit of English institutions, and that if they have not had them hitherto, they will see that there is in the highest quarters in this country, among men of the highest legal authority, and of the greatest attainments of every kind, a determination to do what they conceive to be justice, not because they themselves belong to Ireland, but because they think that all the Queen's subjects throughout the United Kingdom ought to have the full enjoyment of those inestimable privileges of which Englishmen have so long been proud.

Sir Thomas Wilde

agreed that it would be highly inexpedient to enter at this time into a discussion of the merits and effect of the judgment which had been so recently pronounced by the House of Lords—the discussion could neither be sufficiently full nor fair, and therefore ought not to be entered upon at all, and he should not have risen, except for the extraordinary attempt of the right hon. Baronet to diminish the value and to lessen the effect of the solemn judgment of the House of Lords, by referring to the opinions of the seven judges, and which opinions that House had repudiated, and it was to prevent an incorrect impression being made upon the House and the country as to the effect of these Judges' opinions, as giving any credit to the judgment of the Irish judges, that he wished to say a few words. The conduct of the Government would derive any thing but credit with the country from the attempt to use those opinions; the country would be astonished that it should have been sought to support the unlawful judgment they had obtained by the authority of those opinions; and even those opinions themselves would excite no little surprise in the profession and the country when correctly understood. A motion was made in the Court of Queen's Bench, in Ireland, to arrest the judgment upon the indictment, consisting of several counts, each count being, in contemplation of law, a separate indictment, and containing a separate and distinct charge, and no one count receiving any effect whatever from any other count which may be inserted with it in the same indictment. It was contended, both in the Court below and in the House of Lords, that each and every one of the counts were bad in point of law, because, in truth, although they alleged certain facts with criminatory epithets attached to them, yet the matter set forth did not constitute any crime or offence against the law. The Court of Queen's Bench held that it was less necessary to examine minutely the other counts in the indictment, because it was quite clear that the sixth and seventh counts of the indictment were perfectly valid and free from all possible objection, and accordingly gave judgment expressly and in terms upon those two counts with the others, and afterwards passed sentence, referring in the sentence to the matter in those two counts as ingredients in the punishment. This was a notorious fact, printed in the law books and in the newspapers, and was, or might have been, well known to all the English Judges, and, above all, to the Lord Chancellor and the law officers of the Crown. The judgment was accordingly entered by the Court upon all the counts upon the record, and that record was sent to the House of Lords upon the writ of error. It is the value of every record that it truly states what has been in the case—it is the only evidence which the law will receive as to what has so been done; it is considered and treated as absolute verity; no evidence, however cogent, can be received to contradict it, and a Court and Jury, while it exists as a record, must give effect to it as true in every particular. It is called an estoppet, because the parties are estopped or precluded from controverting it. The record or an authentic transcript of it is sent to every Court of Appeal to which a writ of error lies, as the only information which that Court can receive of what judgment has been pronounced in the Court below, and it is conclusive upon all matters appearing therein; for this reason it is that records are referred to as the authentic history of the law; and all text writers before and since Lord Coke, without exception, teach the student to refer to records and pleadings, from which to learn the correct law; and, until this case, it was never heard of that a judgment entered upon the entire declaration or indictment was not conclusively deemed to have been so pronounced, and to show that the Court had held each count to be good. That the two counts especially relied upon by the Irish judges as the best—as the most free from objection, and such as they might safely give judgment upon—the nine English Judges, and all the Law Lords, except Lord Brougham, unanimously held were utterly bad and void—that they did not state any matter which amounted to a crime in law, and that no judgment given upon them could be supported; but the English Judges, except Lord Denman, boldly recommended the House of Lords not to act upon the record, but, although the record stated that the judgment had been pronounced upon all the counts, yet to presume that the Irish Court of Queen's Bench had held the two counts six and seven to be bad, and had not given any judgment at all upon them, whether they were good or bad, but had only given judgment and passed sentence upon the other counts in the indictment, exclusive of the 6th and 7th. Upon what ground this new course and practice was to be justified was not stated, nor was a word said as to the effect of such a course in point of justice in the particular case, or the effect of it upon records in general, thus entirely destroying their value as evidence of what had been done in the Court below in any case in which a writ of error was brought, nor as to its clear effect in destroying the value and effect of a writ of error, and of the appellate jurisdiction of the House of Lords. If the record ceased to be evidence of the judgment which had been given, there being no other means of judicially ascertaining the fact, nor of the effect of embarrassing the defence of a man who should be indicted a second time for the same offence, of which he had before either been acquitted, or been convicted and suffered punishment, of which the record ought to be the simple, clear, and decisive evidence; but the Judges thus asked the House to presume, contrary to the fact, that no judgment had been pronounced upon these two counts, I ask, has this opinion of the English Judges the effect of giving any credit to the judgment of the Court of Queen's Bench in Ireland? On the contrary, the counts held good by the four Irish Judges were held, beyond all doubt, bad by nine English Judges unanimously, and by the Lord Chancellor, and Lords Denman, Cottenham, and Campbell; and the English Judges did not mend the matter, by asking the House to presume a second blunder upon the part of the Irish Judges—that they had misentered their judgment, by entering it upon all the counts, when in truth they only gave the judgment upon part. The English Judges, therefore, are a decisive authority that the judgment actually given by the Irish Judges was an utterly bad and void judgment; and this is what the right hon. Baronet says shows that seven English Judges said the proceedings were according to law; and he makes it out from the fact that the English Judges, to deprive the traversers of their legal remedy against the consequence of this misjudgment of the Irish Judges, by asking the House to treat the judgment as having been given directly contrary to what in fact it was given; and thus, by substituting a judgment never given for one that was in truth given, prove the proceeding to be according to law. But what is to be said to the Government, who knew the Irish Attorney General having prayed judgment upon these two counts, and having heard the Court expressly give judgment upon these two counts especially, and who knew the traversers were suffering imprisonment imposed in respect of these two counts, seeking to retain their judgment, and to keep the traversers in prison upon the known false ground that no judgment had been given upon them; and the Lord Chancellor of England actually prays an affirmance of the judgment, which is to keep the traversers in gaol, upon this ground, knowing to an absolute certainty that the judgment had, in truth, been contrary to the presumption upon which he prayed the House to affirm the judgment.