HC Deb 12 February 1850 vol 108 cc713-26

, in rising to move for a Select Committee to inquire into the facts connected with the striking of the special jury in the case of "Callanan against Cameron," reminded the House of the circumstances which took place at the State trials in 1844, not very unlike those to which he had now to ask the attention of the House. A meeting was held in Ireland on the occasion of those trials in 1844 to protest against the exclusion of Catholics from the jury; and, among the names of the parties on whose requisition the meeting was called, were those of the present Attorney General for Ireland, Sir T. Wyse, Sir T. Redington, and the Master of the Mint; and the present First Minister felt it to be his duty at that time to bring the circumstances before Parliament. He (Mr. Sadleir) did not wish, on the present occasion, to attack the Government or individuals, but to expose a vicious system—a system which every man who had a stake in the country was interested in putting an end to; and he would maintain, that while religious sectarianism was allowed to defile the jury-box, it could not be supposed that the Irish people would cease to have those prejudices which, he admited, his Catholic fellow-countrymen entertained, as regarded the spirit and principles of Protestantism. They had no just idea of the true and liberal principles of Protestantism; they considered it as Orangeism—as something intolerant—as bigotry under another name. The facts of the case to which he wished to call public attention were these:—In 1848, during the disturbances in the south of Ireland, Major Cameron, of the 3rd Buffs, felt it to be his duty to take possession of some houses in Carrick-on-Suir, the property of Mr. Callanan, a respectable Catholic trader of that town. Mr. Callanan commenced an action against Major Cameron for so taking possession of his houses, ejecting the inmates, casting the furniture into the streets, and occupying the place with his soldiers. Mr. Kemmis, the Crown Solicitor, acting for the defendant, obtained an order for a special jury, and when the solicitors for the plaintiff and for the defendant came to strike off, as was their right, 12 names each from the list of 48 which had been obtained by ballot, Mr. Kemmis struck off 9 of the 10 Roman Catholics on the list, and the 10th probably escaped the insult merely by the accident that he was supposed to be a Protestant. These nine names were not in consecutive order on the list, but were picked out by Mr. Kemmis from various parts of it; and when he had struck them off, he had the indelicacy to say that it was a matter of indifference to him which were the three remaining names that he objected to. Now, he (Mr. Sadleir) was personally acquainted with those nine Roman Catholic gentlemen, and could bear testimony to their unblemished reputations and undeniable respectability. As for their social position, some of them were county magistrates and deputy-lieutenants; some men of large property and moderate political opinions—men who had served on grand juries for years—men who had never taken part in any political movement or discussion—men deservedly respected for their exemplary conduct as grand jurors, as magistrates, and as private gentlemen. Among them was Mr. Bianconi, whose character was well known in that House, and who had gained universal praise from all classes of men for his probity and worth. English Gentlemen were utter strangers to such a system, and hesitated, naturally enough, to believe it existed in Ireland; but the facts were too notorious to he denied. A committee of Protestant and Catholic gentlemen had drawn up a report on the system which had prevailed in striking juries in Tipperary, from which it appeared that in 1839, out of a panel of 300, 118 were Roman Catholics, of whom 16 were among the first 50, and 38 among the first 100; while in 1843 the panel was reduced to 201, and the Roman Catholics to 37, of whom 4 only were among the first 50, and 9 among the first 100. He did not state these facts to excite religious dissension, but to extract from Government a substantial, intelligible, and conclusive explanation that would satisfy the Catholic people of Ireland that the representative of royalty had had nothing to do with an insult so wantonly and deliberately perpetrated against them, as well as their Protestant fellow-countrymen. He hoped the Government would make no vague or illusory declaration; and he implored them not to lead away the House from the main issue by raising some insignificant collateral question—to avoid all topics of irritation, and not to lose time in a vain endeavour to rake up any political pamphlet or postprandial speech of his in days gone by. He cautioned the Solicitor General against meeting the Motion in the spirit of a nisi prius lawyer. The Government ought to do justice to Lord Clarendon, to the law-officers of the Crown, and to those to whom the destinies of a great nation were practically delegated. An acknowledged organ of the Irish Government had dealt in no measured terms with the present case, and had declared it a most monstrous transaction, and one that required explanation and investigation. It had even gone so far as to say it was a case in which the conduct of the Government official had been highly censurable, and the Irish public were for a time deluded into a hope that such an investigation would be made. On the other hand, it had been contended that Mr. Kemmis, the official in question, as Crown Solicitor, was bound to take the course best calculated to secure a verdict for his client, just as in an ordinary case; but he (Mr. Sadleir) denied such a rule was applicable in a case in which the Crown defended. It might be said, that according to the instructions issued from time to time by the late Sir Michael O'Loghlen, Mr. Justice Perrin, and Lord Chancellor Brady, a discretionary power was vested in the Crown Solicitor; but every one acquainted with the history of Mr. Kemmis must know that such a discretionary power in his hands would be exercised so as to operate as a practical insult to every Roman Catholic. He believed him to be a gentleman of great worth in private life, as well as a clever public officer; but he knew well the system in which Mr. Kemmis had been schooled—that he had been cradled in bigotry and intolerance, and that he was the son of Mr. Thomas Kemmis, who had been the official of one of the most rampant Orangemen that ever filled the position of first law officer of the Crown. He would beg to call the attention of the House to the evidence of Mr. Thomas, and that also of Mr. William Kemmis, with reference to the marks and numbers affixed to the names of certain gentlemen in the jury list which he held in his hand, certain of those gentlemen being described as proper loyal men. But what did those words mean? They meant that proper and loyal men were pliable men—men on whom the Government of the day might rely for support in the jury-box. So much for the way in which justice had been administered in 1812. A more recent illustration of the mode of its administration was to be found in the case which his hon. and learned Friend the Member for Athlone brought under the notice of the House in the course of last Session. He (Mr. Sadleir) had no intention of then occupying the time of the House by repeating the details which had already been laid before them; but he could not help noticing the grounds on which the Home Secretary met the case that had been brought forward by his hon. and learned Friend. The right hon. Baronet defended the proceedings then impugned by pleading the defects of the law; but there was no ground for that allegation, the law being, if fairly administered, quite sufficient for all the purposes which the case brought forward by his hon. and learned Friend demanded. Sir Colman O'Loghlen, Lord Chancellor Brady, and Mr. Justice Perrin, very clearly laid down the existing state of the law, and, from their explanations, nothing could be more evident than that the law was abundantly sufficient to secure equal and indifferent justice. It had been said, that in those cases the Roman Catholic gentlemen had been set aside in a spirit of kindness, lest they should be exposed to injury on account of the manner in which they might discharge their duties as jurors. That assertion was a gross calumny upon the Irish nation. He next begged to refer to what the noble Lord at the head of the Government had said with respect to the case which his hon. and learned Friend the Member for Athlone had brought forward in that House; and he hoped that the noble Lord would avail himself of the present or some other opportunity to explain his sentiments on the subject. In substance the noble Lord on that occasion said that Roman Catholics and Protestants, Repealers and Anti-Repealers, should alike be considered as fitting persons to serve on juries; but when men were found who aimed at a separation of Ireland from England, who were advocates for deposing the Queen—such men, the noble Lord said, were not fitting jurors upon State trials involving that very question of separation between England and Ireland: such an issue they could not be expected fairly to try; and, if the Attorney General had any reason to think there were men of that class upon the panel, and that they would not give a fair verdict, he had a right to remove them from the list. Those were the opinions expressed by the noble Lord, and to such sentiments every well-minded Irishman must assent. Nevertheless, something like insinuation was conveyed by the speech of the noble Lord, and it was an insinuation calculated to wound and irritate the Roman Catholic gentlemen of Ireland, seeming, he thought, to imply that there were those upon the list who sympathised with rebellion. He repeated his hope that the noble Lord would explain this speech—that he would explain what he meant, when he said that he believed that to be the case with those gentlemen whose names had been removed from the list to which the hon. and learned Member for Athlone had referred. He could not help now observing, that great professions were made of a desire to put an end to religious differences: he would, therefore ask the Government to devise measures for preventing a recurrence pf such cases. Their Sovereign, when She went to Ireland, plainly intimated in a hundred touching and graceful forms, that She knew no religious distinctions. An acute observer of the Irish character, Sir John Davies, said that no people loved impartial justice more than the Irish; and it ought to be the study of the Government, by an equal and impartial administration of the law, to strengthen in the hearts of the Irish people that inherent love of justice for which the Irish nation has been at all times remarkable. The Government should labour to abolish in Ireland those religious distinctions which tended to perpetuate social dissensions, retarding not only the solid recovery of Ireland, but likewise the permanent prosperity and union of the two countries.

Motion made, and Question proposed— That a Select Committee be appointed to inquire into the facts connected with the striking of the Special Jury in the case of Callanan against Cameron.


seconded the Motion.


was quite prepared to admit that the hon. Member for Carlow, in bringing forward his Motion, was actuated solely by the desire to conciliate the people of Ireland, and reconcile those differences which had so long prevailed in that country. He lamented that anything should have occurred to lead to the suspicion that the striking and empannelling of juries in Ireland had been conducted unfairly. But the fact was that the case of Callanan and Cameron still remained untried, and he thought the House would agree with him in saying that it would not conduce to the strict administration of justice in that case at this moment to cast reflections upon the manner in which the jury had been appointed. The jury had been struck according to the forms of law, and they would necessarily feel embarrassed by an impeachment of the propriety of their selection. If the hon. Member's Motion were agreed to, a Committee of this House would be sitting and the trial itself be going on at one and the same time. It should be remembered that the case adverted to was not a question between the Crown and the subject in a criminal proceeding, but an ordinary case between subject and subject. It was quite a mistake to say that the striking of any gentleman off a special jury was casting any personal disrespect on him. It was not like the ordinary case of a juror being put by in open court when about to be sworn, but the attorneys of the respective parties having attended before the officer at his chamber in Dublin, each of them is hound to strike off twelve from the list of forty-eight: he is bound to make a selection, and he merely says, "I shall strike off this person that I like the least of the two, otherwise I shall have to strike off another that I would like better." That was the whole case; and if ever there was a special jury competent to try a case, it was the jury impanelled to try this trumpery case about taking possession of two old houses in Carrick-on-Suir. It would have a very had tendency to grant a Committee of Inquiry in this instance, because, if they did so, they must expect to have every man having an objection to a jury coming forward with a similar complaint, and demanding an inquiry in that House. Mr. Kemmis, the Crown Solicitor, was a gentleman holding an honourable position in his profession in the city of Dublin; and it was extremely hard that that imputation should be made against a person who had no opportunity of defending himself. But the spirit which the hon. Member for Car-low had shown might best be seen from his unnecessary reference to the transactions of 1812, and his thereby seeking to arraign the son for the conduct of the deceased father. As to bringing any charge against the Government respecting this transaction, the Government had nothing to do with it: it merely ordered the Crown Solicitor to defend Major Cameron, leaving the management of the case entirely to him, like any other private action between party and party. He would endeavour to satisfy the House that there had not been the slightest intention to cast any slur on the character, or offer any insult to the religion, of the gentlemen struck off the jury. The Lord Lieutenant directed the Attorney General for Ireland to obtain from Mr. Kemmis an explanation of how the matter occurred; Mr. Kemmis wrote a letter in reply on the 24th of August last, which he would read to the House. The hon. and learned Gentleman then read Mr. Kemmis's letter to the Attorney General of Ireland as follows:— Sir—In compliance with your directions, that I should acquaint you, for the information of his Excellency the Lord Lieutenant, with the grounds on which I reduced the jury list in the case of Callanan against Cameron, and whether I had struck off any juror on that occasion because of his religious persuasion; I have the honor to state, for the information of his Excellency, that the case is a civil action brought by Mr. Patrick Callanan, a shopkeeper and boatowner, in Carrick-on-Suir, against Major Cameron of the 3rd Buffs, for an alleged forcible occupation of two houses in that town by him and the military under his command, on the 26th of Juno, 1848, and few following days, at a time when that part of the county of Tipperary was on the verge of rebellion. In defending the action, counsel advised that the trial should not be had by an ordinary, but by a special, jury of the South Hiding of the county of Tipperary, and I obtained the necessary order for the purpose. In the case of a special jury it is necessary, as you are aware, for the solicitors for each party to reduce the list of forty-eight names by twelve each, and I took off twelve names so as to leave those on who, from my own experience and knowledge, I believed best calculated to find a fair and impartial verdict. Of the twelve gentlemen whose names I took off the list, I did not strike off any one of them on account of his religion, nor did it enter into my mind that several of them professed the Roman Catholic religion until I was informed that the matter had been mentioned in the House of Commons. The jury was struck in Dublin, and to convenience the attorney for the plaintiff the forty-eight names balloted for were reduced the day after they were drawn, so that I had no time to make any particular inquiry; but as the names drawn were generally of a very respectable class, I was well satisfied to leave on those whom I happened to have a knowledge of, and knew to be well qualified fairly to try the case. In the performance of this duty, I exercised my best judgment and ability for the interest of my client, in the same way as I am confident any respectable solicitor would have done. This was a civil case between party and party, and there are no official directions whatsoever to guide the Crown Solicitor relative to this duty. The law requires that twelve names shall be struck off, even without reasons; and that where special reasons have guided the Crown Solicitor to any particular juror, it has not been usual publicly to state the reasons which influenced him in the discharge of his duty, though I can and do conscientiously state that it was done by me entirely irrespective of religious distinctions, and solely for the benefit of my client, as I was bound as a professional man to do. He (Mr. Hatchell) therefore thought, after reading such a document, that the House would agree with him that where they had a solemn repudiation of the charge of sectarianism from a gentleman of Mr. Kemmis's high standing and respectability, they were bound to take it that what he asserted was true, and not rest upon any surmise or conjecture. The hon. Member for Car-low had made a very ungenerous insinuation against Mr. Kemmis; for when he found that one of the names left—namely, that of Mr. James Archer Butler—was that of a Roman Catholic, and of the first respectability in the county, he said that Mr. Kemmis must have made this single exception to his rule of choosing Protestants only through ignorance or mistake. That, he thought, was carrying his hostility to Mr. Kemmis to a very unfair length. He must protest against the Motion for a Committee in respect of a case like this, which yet remained untried; and he called on the House to negative the Motion.


explained that he had studiously abstained from adverting in any manner to the merits of this case; and as to his observations regarding Mr. Kemmis, he appealed to the House whether he had not gone out of his way to acknowledge Mr. Kemmis to be a perfect gentleman, and of great amiablity of character in his private capacity.


considered the speech of the hon. and learned Gentleman the Solicitor General for Ireland no answer to the arguments of the hon. Member for Carlow. The hon. and learned Gentleman rested his argument merely on this—that this was merely the ordinary case of a civil action; but the real question was, whether the practice of selecting none but those who were called "pure and loyal men," professing only one religion, was to be continued or not. He could state, from personal knowledge, that that practice had prevailed in the county which he had the honour to represent (Tipperary); and although he admitted that it offered no insult to particular individuals, it was still a wrong to the Catholic religion, and as the representative of a Catholic county, he felt bound to protest against the system. At the trial of Mr. Smith O'Brien, at Clonmel, in September, 1848, among the first one hundred names called, there were found only five Catholics; but at the spring assizes for the same year, when there were no political charges, out of the first seventy-five names called, twenty-three were Catholics. The only remedy for the evil was to give strict instructions to the Crown solicitor to state in open court fairly and manfully his objections to any juror, and see if the objections were sound or not; and if an Act of Parliament was necessary for the purpose, one should be passed. The present partial system weakened the respect for the law in Ireland, where a man, even although he might have been fairly convicted of murder, was looked upon as a martyr, if he had been tried by a sectarian jury; and until a total change in the jury system was introduced into Ireland, discontent and social disorganisation must be expected to continue.


said, the precise question before the House was this—a special jury was applied for in a civil action. The panel in the Crown Court and the special jurors' book were constructed on an entirely different footing. The names of all the gentlemen competent to act were placed on the special jurors' book in alphabetical order. The sheriff attended the striking of the jury, which was done in this manner: certain numbers were put into a box, and on being drawn out, a reference was made to the book to ascertain the names, and forty-eight names were thus selected by ballot out of the whole special jurors' list to serve on every cause tried by a special jury. Then what did the law allow? He agreed in the observation, that Ireland ought to have the benefit of English institutions. The same law was applicable to both countries. Out of the forty-eight names so selected, the law allowed each party the legal right to object to twelve, without being answerable to any tribunal; and it was the duty of the attorney to strike away the twelve which he considered the most objectionable, and leave the rest. If there had been any fraud, the court ought to have been appealed to on affidavit; and he decidedly objected to the system of pretermitting the opportunity of going before the judges, and involving the House of Commons in a religious discussion, when the facts were not fully before it. He thought Mr. Kemmis had exercised an honest discretion, and on every ground he should think it his duty to vote with his hon. and learned Friend the Solicitor General for Ireland.


admitted that it would be difficult to contradict Mr. Kemmis's denial in his letter of having been influenced by any religious bias; but he considered that the charge of partiality was justified, when they remembered that in a list of forty-eight gentlemen for the county of Tipperary, out of ten Catholic names upon it, nine were struck off, and that some of the nine happened to be some of the most influential and leading men in the county. He had great respect for those at present intrusted with the administration of affairs in Ireland; but he must say that the system of jury packing had prevailed in that country during the last two years; and the present case arising out of recent political events, Mr. Kemmis, who was known to have strong feelings against the Catholics, was believed to have been influenced in this instance by his religious prejudices. The hon. and learned Gentleman the Solicitor General for Ireland had found fault with his (Mr. Fagan's) Friend the Member for Carlow for bringing forward this question pending the cause; but it was not brought to trial because the plaintiff had no confidence in the jury—not because the jury were not respectable, for he (Mr. Fagan) believed they were—but because he was under the conviction that justice would not be done in consequence of the mode in which the jury had been struck. He (Mr. Fagan) hoped, however, that such conviction would be removed from the plaintiff's mind by the discussion of that evening. He admitted that the statement of Mr. Kemmis had in a great degree removed from his mind the impression that he was actuated by any sectarian feeling; but when there were only nineteen Catholics altogether on the sheriff's special list in Tipperary, it must be admitted that list was not fairly made out, for certainly there were more than nineteen Catholics in the county of Tipperary who were entitled to be put on the special jury list.


said, he must join with his hon. and learned Colleague the Solicitor General for Ireland in requesting the hon. Member for Carlow not to press this question to a division. He protested against the House at all entertaining a question of this description except there was a direct charge of corruption brought against the public officer. It was not to be contended that that House should sit as a court of appeal upon his acts on the ground merely that he exercised his discretion on the part of his client, for he could not fairly exercise that discretion if his acts were to be made the subject of inquiry in that House or elsewhere. They would fetter his discretion, which should be left totally unfettered, for otherwise he could not act fairly and justly towards his clients. He had assisted in the trial of many political offenders, and had often given instructions to strike the names of gentlemen off the list of jurors; but there never had been the slightest discussion in that House as to the undoubted right of those who acted for him to strike the names of twelve persons from the list. He wished the same mode of law to be applied to the two countries. If there was to be a Select Committee, let it not be to investigate a particular case; but let it be an inquiry bearing on some general measure applicable to the two countries, and if the system was defective, then have one general measure for the reform of the law in both countries. At a period when English proprietors were about to embark their property in Ireland, it seemed to him that, in entertaining this question, they were taking a course that was highly calculated to shake their confidence. They did not hear of such complaints being made in England, and nothing could so shake the confidence of those men who might become the purchasers of land in Ireland as to suppose that in the case of a trial before a jury, on the mere assertion of parties, the matter might be brought before the House of Commons. He implored of the House, whenever there was a matter exciting public interest in the country, and when the minds of jurors should be calm, not to further excite the minds of parties in the neighbourhood by provoking discussion in that House. Let them not do it now at the very moment when this case might be about to be brought forward before the tribunal that was to try it. He did not draw any distinction between public and private cases, but objected that the House, except in cases where there was a charge of corruption, should discuss such questions at all. He trusted the hon. Member for Carlow would be satisfied with the disavowal of Mr. Kemmis, and that the discussion would be allowed to terminate.


thought it was unwise, impolitic, and improper to bring forward any judicial question in that House except on specific grounds. The hon. and learned Gentleman the Attorney General asked who complained of such a thing being done in England; and his (Mr. Hume's) answer was, no one; because in England the juries were justly struck; but there was no comparison to be made in that respect between England and Ireland. Why had Sir Colman O'Loghlen made a regulation that no man should be challenged as a juror on account of being a Roman Catholic, but because the fact of a man being a Roman Catholic, was formerly deemed a sufficient ground for striking him off the panel? Wherever such acts were committed, or where there was even a suspicion of such acts having been committed, the Government should not wait until they were goaded on by individuals, but should voluntarily do their best to remove all grounds of complaint. The fact of the Orange party being allowed to trample under foot the Roman Catholics, had been the cause of great discontent, and he trusted he would see the time when that system would be put an end to—when Protestant and Catholic would alike enjoy the civil rights they were entitled to, and when all suspicion of injustice would be removed. With regard to the present question, the matter being under judgment was a sufficient reason for not pressing the inquiry.


felt he ought not to take a division on the subject that night, not precisely on account of the reply which he had received from the Government, but from the thin state of the House. The Solicitor General for Ireland had abandoned the broad constitutional ground on which he (Mr. Sadleir) had put the question, and had endeavoured to lead the House away upon collateral and technical issues, and had said that the Irish people never should have heard of what went on in the office of the gentleman whose duty it was to preside over the jury ballot. Now, the hon. and learned Gentleman was a man of mature experience, he had grown gray in years, and was familiar with the prejudices and feelings of his countrymen; and yet he had endeavoured to mislead English Gentlemen, and to delude them into the erroneous notion that in an action in which a private individual Roman Catholic was plaintiff, and the Crown was substantially the defendant, the mode of procedure adopted by the Crown officer in striking the jury could be cushioned in Ireland. Knowing, as the people of Ireland did, that the practical working of the system enabled the Crown to exclude Roman Catholics from the jury box, every Irishman looked with anxiety to the conduct of the Crown Solicitor in such a case as that of "Callanan against Cameron." Secrecy in Ireland in such a case was an utter impossibility. He (Mr. Sadleir) disclaimed casting any imputation on the conduct of Mr. Kemmis as a private gentleman, or saying that there had been any legal defect in these proceedings; but, as the law stood, a discretionary power was vested in the Crown Solicitor, and the charge he made against Mr. Kemmis was that he had not exercised that discretionary power wisely, fairly, or justly. He (Mr. Sadleir) felt he had a right to complain that he had never received a copy of Mr. Kemmis's letter, although the subject was brought by him before the House last Session, and had since been much discussed in Ireland. Mr. Kemmis had represented that he was not aware of the religious opinions of the nine gentlemen whose names had been struck out of the jury list, and that he had not taken off those names because they were Roman Catholics. He (Mr. Sadleir) supposed he must give his credence to that gentleman, and must believe those two statements; but he must tell the House that neither one statement nor the other would be believed in Ireland. Mr. Kemmis was between 70 and 80 years of age, and had been 50 years attending the assize—many of those years at Clonmel, where some of those nine gentlemen acted as grand jurors; and to tell the House that the Crown Solicitor was not aware, that Mr. Scully, the Messrs. Doherty, and the Messrs. Power, were Roman Catholic gentlemen in the county of Tipperary, was what would not be believed in that county, or in the whole province of Munster. Then, as to Mr. Kemmis not having struck off the nine gentlemen because they were Roman Catholics, the House would bear in mind the statement which he had already made, and which had not been contradicted, that Mr. Kemmis went up and down the list, and one after, the other took from it the names of those nine gentlemen, and having done so, he proceeded to take off three Protestant gentlemen. To say that this was all done by accident, was a statement which would not be believed in Ireland. He would not divide the House, but would ask leave to withdraw his Motion.


begged to make an observation with respect to what had fallen from the hon. Gentleman the Member for Montrose, in reference to the Orange party in Ireland. He begged to enter his protest against that party being supposed to have any association with, or to be affected by the acts of the Solicitor General of a Whig Government in Ireland. It was possible that the Orange party themselves might hereafter be found complaining, and for the same reason that the Roman Catholics complained on the present occasion.

Motion negatived.