DR. FITZGERALD. (Hansard, 30 April 1846)

MR. O'CONNELL
begged to state to the House the following facts connected with the Motion he was about to make. Two persons of the name of Kyly had been 1331 tried at the last Waterford assizes, for the offence of endeavouring to hire two persons to commit a murder on a man named Maher. Those persons had been committed on the charge, and had lived in gaol for six or eight months before trial. An application had been made to the Judges of the Court of Queen's Bench to let them out on bail; but the Crown resisted that application. The matter entirely originated in the misconduct of the stipendiary magistrate, Dr. Fitzgerald, who took the depositions of the witnesses against the Kylys, and gave them some general caution, but endeavoured to obtain a confession of guilt from them. The witnesses against them were in the hands of the police; and he could, with the greatest facility, have brought those witnesses forward, and read their evidence before the prisoners. But he did no such thing. He concealed the depositions; and up to the time of the assizes, the prisoners had no notice of the nature of the evidence against them. The following remarkable fact, showing the amount of misconduct of which the stipendiary magistrate had been guilty, stood out in the case before them. At the trial one of the principal witnesses for the defence proved that one of the prisoners had been at the quarter-sessions at Dungarvon on the very day that the offence was said to have been committed. If Dr. Fitzgerald had done his duty, and the depositions had been sworn before the prisoners, it would have been ascertained that it was utterly impossible the charge could be true. The hon. Gentleman moved for the following return:— That there be laid before this House Copies of the Correspondence between the Irish Government and Dr. Fitzgerald, stipendiary magistrate in the county of Waterford, on the subject of the trial of persons of the name of Kyly, who were tried at the last assizes of Waterford, before the Lord Chief Baron, and upon which occasion the Chief Baron pronounced severe censure on the conduct of the said Fitzgerald:—And of the Report of the said trial, furnished by the Lord Chief Baron to the Irish Government. Also, a copy of the Depositions taken by the said Dr. Fitzgerald against the prisoners, previous to their trial. Also, copies of the affidavits filed on the motion for admitting the said prisoners Kylys to bail previous to trial, with the decision of the court thereon.

§ SIR J. GRAHAM
by no means denied the importance of the Motion of the hon. Member; and when he said so he was quite sure the House would be of the same opinion. As the hon. Gentleman informed the House that when those documents had been laid before them he intended to make 1332 a Motion for a Select Committee, he (Sir J. Graham) thought it would be more expedient for him not to enter at length into the merits of the question on the present occasion. He acceded at once to the Returns in the latter part of the Motion. As to the first part of the Motion, he did not think it was his duty to consent to the production of the Papers required by the hon. Member. It was quite clear that Dr. Fitzgerald, in omitting to acquaint the prisoners with the evidence of the witnesses against them, had been guilty of great irregularity. The hon. Gentleman alluded to certain expressions said to have been used by the Lord Chief Baron, at the trial, as to the conduct of Dr. Fitzgerald. It was reported that the Lord Chief Baron said that the conduct of the magistrate had been illegal, unconstitutional, and dishonest. The correspondence with the Lord Lieutenant, for which the hon. Member had moved, was of a confidential nature, though connected with public business; and he should not, therefore, be disposed to produce those communications; but he might say that the Lord Chief Baron highly disapproved of the conduct of the magistrate. The expressions which were reported to have been used by him had not, however, fallen from him on that occasion. The conduct of the magistrate had been considered worthy of censure—that censure had been conveyed to him in express and decided terms—he had been removed from the district in which he had been magistrate—and the censure pronounced on him was on record. He regretted to say that Dr. Fitzgerald's conduct did not appear to have been singular. Though the practice was quite irregular, he was sorry to say it had existed for a long time in Ireland. The magistrates, however, had been warned against adopting it by a letter sent to every stipendiary in that country. He hoped the hon. Member would not press the first part of his Motion. He had not the slightest objection to accede to the latter part of it. He should be very sorry if he were understood, as in the slightest degree, palliating or defending the practice of which the hon. Member so justly complained. He quite agreed with the hon. Gentleman in the remarks he had made, and in those which had fallen from the Lord Chief Baron, than whom there was no more able or disinterested Judge on the bench of any country, and whose observations were always entitled to the greatest respect.

MR. O'CONNELL
had an ulterior object in moving for the Returns. The right hon. Baronet seemed to have discovered the existence of the scandalous and most disgraceful practice of taking depositions against prisoners without apprising them of evidence against them but recently, or no doubt he would not have permitted it. Such a practice would not be tolerated in this country for instant. The conduct of the magistrate, who was a Government officer with large pay and emoluments, was infinitely worse on that account than if he had been a voluntary and unpaid servant of the Crown. He had been several years a magistrate, and had not the excuse that he was ignorant of his duty. Kyly might have been executed, if the man who proved his innocence happened not to come forward at the trial, but he would have been free from danger had he heard the evidence taken against him at his committal.