§ SIR JOHN SHELLEY
said, in pursuance of the notice which he had given at the close of the last Session of Parliament, and repeated on an early day in the present Session, he now rose to perform the duty which he had undertaken of calling the attention of the House to the state of the judicial bench in Ireland; and to move for a Return showing the fact, as he believed it to be, that several of the Judges of that country were incapacitated, by old age and infirmities, from attending properly to their duties. He should offer to the House no excuse for introducing to their notice so important a subject, and he hoped he should not be told that a question which related to the administration of justice, and whether the courts of law in Ireland should be looked up to and respected, or be considered a scandal and reproach; and whether the judicial bench should be the object of pride and veneration, or the ridicule and derision of the Irish people—could not with propriety be brought under the consideration of the House of Commons. He was well aware that Parliament had fenced round the Judges in order to maintain their independence, and that let the conduct of these learned personages be what it might, there were no means of removing a Judge except by a joint Address from the two Houses of Parliament 761 to the Crown. At the same time, however, it should be borne in mind that the stipends of the Judges were paid by the country; that in the event of any Judge not being able to go circuit, and a substitute being appointed in his stead, the salary of the substitute was provided out of the Consolidated Fund; and that thus, in fact, the country paid more for a Judge who could not and did not go circuit, than it did for one who was competent and thoroughly and properly discharged his duties. Than the noble Lord the Member for London (Lord J. Russell) there was no authority in that House more justly respected on all constitutional questions; and in 1842 the noble Lord proposed a Resolution with reference to certain judicial resignations in Ireland and Scotland. On that occasion the noble Lord moved for the production of papers and correspondence, and stated that the resignations to which he referred having taken place at the time of a change of Administration, it was necessary, with a view to an explanation, that there should be some further inquiry into the matter; because, as the case then appeared, either the Judges had maintained their position long after they had been disabled by age and infirmities from performing its duties, and until their own friends came into power, or else their political party having come into power, they had resigned and been put upon the retired list when they might, and still ought to, have performed the duties of their office. The noble Lord used the following words, and he (Sir J. Shelley) quoted them for the purpose of showing that he had good grounds for saying that the subject was one that ought to be brought before the House of Commons—He thought it of the greatest importance that that House should pay rigid attention to whatever related to the Judges. They were placed in a high station, to which they were appointed for life. They were paid large salaries, and retiring pensions were allowed to them when unable to perform their duties. The performance of those duties was generally attended with very great respect and observance on the part of the public and of Parliament. So that, however some might object to that principle of the constitution which rendered the Judges independent, it could not be said that the Judges had reason to complain of the mode in which they were treated by Parliament or the public."—[3 Hansard, Ix, 265.]He could assure the House, that in bringing forward the question now, he was in no respect influenced by political motives. ["Oh, oh!"] He disclaimed any political 762 motives; and if any question as to the political views of those venerable men were mooted it would not be by him. His motive was, that, however eminent and able these venerable men might have been in their time, they were now unable to perform their duties; and the question he would raise was, that the infirmities of age had come upon them, and that they were unable to fulfil those duties in a manner creditable to themselves, or profitable in any way to the country. His attention had been attracted to the subject by a question put to the right hon. Gentleman the Secretary for Ireland, last Session of Parliament, in that House, by the hon. Member for Merthyr Tydvil (Mr. H. A. Bruce). That hon. Member asked the Chief Secretary for Ireland—Whether he was aware that a large proportion of the Irish Judges were incapacitated by age or other infirmities for the full and regular discharge of their duties, and, if so, whether the Government intended to apply any and what remedy? There were six Irish Judges permanently incapacitated from illness, three of whom had been called to the bar at the end of the last century, in the years 1796, 1797, and 1798.The reply of the right hon. Gentleman was—That the only official knowledge which the Government had of the circumstances referred to by the hon. Gentleman was derived from the fact, that when a Judge was unable to go circuit a substitute had to be provided, and his salary paid for out of the Consolidated Fund. To the latter part of the question he was unable to give any answer. He could only state that the circumstances had been brought under the notice of the Government, and that they were still under consideration.That question was asked early in May last. Now, he had waited until the close of the Session to see whether any further steps would be taken in the matter, but nothing was done. He then gave notice to bring the subject before the House, and he now did so. He thought Her Majesty's Government were much to blame for allowing such a state of things as that, which the Returns he moved for would show to grow up and exist in Ireland. It was possible that their apathy in the case might have arisen from feelings of delicacy, and that they had been withheld from doing their duty through fear of improper motives being imputed to them; for fear, perhaps, it should be said, that they had endeavoured to remove these venerable men from the judicial bench for the purpose of placing on it in their stead men of their own political views and opinions. But if that should serve as an excuse 763 for Her Majesty's Government, what excuse could be found for Her Majesty's Opposition, who had let such a state of things come to pass without comment? There might, perhaps, be the excuse for them, that inasmuch as hon. and learned Gentlemen of their party hoped to reach that ultimate end of a lawyer's ambition, the ermine, it was prudent for them to let things go on as they were until a change of the Government should take place, and their own friends come into power. But while he (Sir J. Shelley) said this, he felt bound to do justice to the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Napier), in respect of a report which was current in Dublin. It was so creditable to him that he (Sir J. Shelley) could not avoid mentioning it. That report was to the effect, that at the time the right hon. and learned Gentleman formed a part of Lord Derby's Government a Judgeship was offered him; and that the right hon. and learned Gentleman, labouring under a certain infirmity, namely, deafness [cries of "Order!"], had on that ground declined the appointment. He did not wish to hurt the feelings of the right hon. and learned Gentleman, but on the contrary he mentioned it as creditable in the highest degree to the right hon. and learned Gentleman, and that this infirmity it was which caused him to decline the offer, and to allow Mr. Greene to have the appointment. He (Sir J. Shelley) felt all the difficulty of alluding to the venerable and learned men in question, for he knew perfectly well how easy it was to impute motives. He would not go through the Irish bench—there were twelve judges in Ire-laud—but he should merely allude to three of those venerable men who had arrived at the longest period of life and service. The first was Chief Justice Lefroy. He was born in 1774; he was therefore eighty-two years old. He had been called to the bar in 1797. His infirmities were naturally and necessarily great, and if the Return were granted it would be found that he was constantly obliged to have a substitute to perform his duty who had to be paid out of the Consolidated Fund. The next was Justice Torrens, who was born in 1772, and called to the bar in 1798. He was eighty-four years old, and had been thirty-two years on the bench. Then came the oldest of all these venerable men, and he (Sir J. Shelley) would say that no man had more deservedly won the admiration and the respect of all classes 764 during his long life, as well for his high and honourable conduct as for his great abilities—he meant Baron Pennefather. Baron Pennefather was born in 1771; he had been called to the bar sixty-one years, and he had been on the bench thirty-five years. He was eighty-five years of age. It would be said, no doubt—and he should not deny it—that Baron Pennefather performed his duties with more activity than many of his younger brethren. Every one knew cases in which he was distinguished even now by his elaborate summing up of evidence, as well as by his extraordinary physical strength. But, unfortunately for himself and the country, for a long period he had been deprived of sight. Looking, however, at the duties of a Judge, it was impossible to conclude that those duties could be properly and efficiently performed by a blind man. The Judge was bound to take notes of evidence on all trials (both civil and criminal), in the one case to be reported to the Superior Court, and in the other to the Home Office. It was awful to think that a person should be put on his trial, where life and character might be at stake, before a Judge who could not take a note of the evidence, but must depend entirely on the correctness of his memory. To convince the House that Baron Pennefather was quite blind, he should read a passage from a newspaper which did not at all favour his (Sir J. Shelley's) side of the House. [Cries of "Order!"] Well, then, he would read a document from a writer not favourable to his side of the House. [Cries of "Order!"]
§ SIR FREDERIC THESIGER
said, he rose to order. The hon. Baronet was out of order in reading from a newspaper. He had first said he would read from a newspaper, and on being checked by the House he had called it a document, and proceeded to read the same thing.
§ MR. SPEAKER
The hon. and learned Gentleman is correct as to what used to be the rule of the House; but a few years ago I decided that it was out of order to read an extract in the manner in which the hon. Gentleman (Sir J. Shelley) proposes to read one now, and my decision was overruled by the House.
§ SIR JOHN SHELLEY
He would now proceed to read the passage in question:—We can furthermore safely assert its being the all but unanimous opinion of that learned body that Baron Pennefather, although suffering from impaired sight, most fully and ably discharges with great credit to the bench and satisfaction to the bar those judicial duties, in the 765 admirable performance of which he has passed nearly fifty years of his life.Here was the admission of a friendly witness that Baron Pennefather was suffering from impaired sight. But that was not all. In the letter from "our own correspondent," in the same newspaper, it was stated as follows:—Baron Pennefather was called to the Irish bar in Hilary Term, 1795, and advanced to the bench in 1821. He has, therefore, been sixty-one years in the profession, thirty-five of which have been passed on the bench. He is now in his eighty-fourth year, but still retains all the vigour and acuteness of his intellect. For the last year he has been totally deprived of sight.He believed it should be that this venerable and learned Judge had been blind for the last three years; and, at all events, it was quite clear from the statements that this venerable and learned man was suffering from blindness. He (Sir J. Shelley) would therefore ask the House, how could that venerable man execute his duty as a Judge under such circumstances? The first duty of a Judge was to take notes of the evidence. Baron Pennefather was not capable of taking notes; and he could not delegate that duty, as far as he (Sir J. Shelley) knew, to any other person. No doubt his Marshal might assist him, but the Judge alone was responsible. Surely it would not be contended that in cases of forgery, when the character of handwriting was an essential element in the inquiry, it was a matter of little moment that the Judge who presided should be incapable of examining the document for himself. Again, it not unfrequently happened in a court of justice that the whole question turned on a conversation given in evidence; and it was manifestly of the highest importance that the Judge should be able to take down the Report of such a dialogue, and commit it to his notes accurately as it entered his own ears. But that, however desirable, was obviously impossible when a defect of vision incapacitated the Judge from writing at all. Perplexed and bewildered by the artifices of counsel, the jury appealed for guidance to the Judge, and found him blind! It would be on difficult matter to multiply cases of inconvenience resulting from so unfortunate a casualty; but speaking in the presence of men more familiar than himself with the practice and proceedings of courts of law, he preferred to leave the details of the question in their hands. Still, in vindication of the course—an unusual one he admitted—which he had felt it his duty 766 to take in this matter, it was right that he should mention one or two out of many instances of inconvenience that had been occasioned by the pertinacity with which that unfortunate but respected and venerable gentleman, Baron Pennefather, clung to office. At the Fermanagh Spring Assizes of 1855 a man named Patrick Leonard was indicted on a charge of having written a threatening letter. It was on the point relating to handwriting that the case against him was felt to be weak. Certain documents found on his person he acknowledged to have written, but the letter which formed the subject of the prosecution he altogether repudiated. The whole case against him turned on a comparison of handwriting, and here Baron Pennefather was unable to afford the least assistance. But the prisoner cried out from the dock, "My Lord, if you will examine the papers yourself, you will see that they were not written by the same hand!" This the Judge of course could not do. The prisoner was convicted, and was now undergoing a penal sentence. He (Sir J. Shelley) did not mean to say that the man was innocent. In all probability he was well aware that the Judge could not see the writings, and it was possible that he might have made the exclamation only to influence the jury in his favour. But should it have lain in his mouth to utter such a challenge?—and was that a state of things that should be permitted to exist? The next case was a case tried by the same Judge in January last, Fitzgibbon v. Hammond, involving a charge of fraud and perjury; and the important fact in that case was, to ascertain whether the acceptance to a bill of exchange (the subject of the action) was written on the stamp in blank and the bill afterwards written over, or whether the bill was first written on the paper, and accepted afterwards. The Judge again could give no assistance to the jury, though stating it to be of the utmost importance. A new trial was moved for in the case, therefore, and the counsel who moved it laid as a ground that the Judge was unable to give that assistance. That was a case in which Baron Pennefather could not do justice to the parties concerned in a suit before him. The spring circuits were now approaching. Baron Pennefather had selected the north-western circuit, where he would have to try several serious cases—probably among them that of the persons charged with the 767 assassination of Miss Hinds. In the event of any of the prisoners appealing against a trial by a blind Judge, it was not easy to understand on what ground such an appeal could be resisted. Lawyers would say that a prisoner had no right to make such an appeal, but public opinion, basing its decision on higher than technical ground, would decide otherwise; and it was awful to think that a man should be tried for his life before a Judge who, being incapable of taking a note of the evidence, would have to depend on his memory for the "summing up." It might be said that Baron Pennefather need not take this particular case. But if he declined it, into whose hands would it fall? Who was the other Judge on the same circuit? Mr. Justice Torrens, who was still more infirm—in fact, the most infirm of all these venerable Judges—and who, as the Returns now moved for would prove, was frequently obliged to absent himself from his duties in Dublin as well as on circuit, and to delegate his authority to a substitute. When his (Sir J. Shelley's) attention was first attracted to these matters, it at once occurred to him that the Judges in Ireland could not have retiring pensions; but that he found to be a fallacy. They had very large retiring pensions. Under such circumstances, it certainly did appear extraordinary that the Irish Judges never retired till just as life was actually ebbing away. There was, at present, no criminal Judge in Ireland on the retired list. The last was a younger brother of Baron Pennefather, who left the bench worn out with old age and infirmity ten years ago, and who was now no more. Such a state of things would not be tolerated in Westminster Hall. It was to be lamented that the Irish did not take pattern by the English Judges in that respect. Lord Denman, when himself conscious of a decay that others failed to detect, immediately resigned. Sir John Patteson, who still retained his fine faculties, and who had recently shown great capacity of judgment in the Government inquiry into the state of the London corporation, retired from the bench some years ago because he had become deaf. If the conversation, said to have taken place between that learned person and a friend of his, had been correctly reported, it was eminently creditable to Sir John Patteson. His friend said to him "Why need you resign? You hear very distinctly what I say to you." "It is true," replied Sir 768 John, "that I can hear you and the counsel who plead before me; but when women or children, or nervous persons, are under examination, I do not hear them, unless I make them speak in a tone so loud that it annoys them, and prevents them giving their evidence in that collected manner in which testimony ought always to be delivered before a Judge and jury. I feel that it is due to the proper administration of public justice that I should resign, and I have resolved to do so." The case of Mr. Justice Maule was still more in point. He was not in extreme old age when he withdrew from the bench, nor were his faculties impaired; but he felt fatigue on circuit, and did not hesitate to retire. He (Sir J. Shelley) did not wish to press the subject further. If the Motion were carried, he hoped that it would have the effect of convincing those venerable men, to whom the country was indebted for such long service, that in justice to the public they ought now to withdraw from public life, and, should they neglect to do so, he could not help thinking that it was the I duty of the Government to put a stop to what could not be regarded otherwise than as a disgrace and scandal to the Irish bench. Admonitions to purity of morals and self-denial could not come with much grace or authority from men who gave the appearance of being actuated by such cupidity of power, and, it might be, of pelf—men who, when the evening of; life had come upon them, renounced the sanctity and repose of private life, and preferred to expose themselves to the gaze of a, scrutinising and exacting public. He hoped that he had said nothing unnecessarily disrespectful of them. He had no wish to do so. For their own sakes, as well as for that of the public, he was anxious that they should withdraw from duties which they could no longer discharge with credit to themselves or advantage to the country.
Motion made, and Question proposed—
That there be laid before this House, a Return of the date of the Call to the Bar of each of the Judges of the Superior Courts of Law in Ireland; the dates of their respective appointments as Judges; the number of times each has been absent during the whole of any Assize, or, if absent during a part only, stating what part, and the reasons, if any, given for such absence; also, in how many, and in what instances, substitutes have been appointed by the Crown to preside at any Assize, or portion thereof, in the absence of any such Judge, giving in each case the name of the town.
§ MR. KENNEDY
said, he should move, as an Amendment, that the words "in 769 Ireland" in the second line of the Resolution be omitted.
§ Amendment proposed, to leave out the words "in Ireland."
§ Question proposed, "That the words proposed to be left out stand part of the Question."
said, he certainly had expected that some one connected with the Government would have stood forward to take the part of the venerable Judges in Ireland. The hon. Baronet who had made the Motion admitted that it was of importance that the authority of the courts of law in that country should be supported; but how was it possible that could be the case when the Irish people saw their eminent and venerable magistrates subjected to attacks such as these, and that without the slightest pretest of a charge of immorality or bad conduct against them? The hon. Baronet, not content with heaping indignities upon the living, had raked the grave to bring up and abuse the memory of the illustrious dead. He had alluded to one venerable man who had died in the full vigour of his faculties, who had for many years been the ornament of the bench, and who for long before that had been the honour and the delight of the Irish bar—the late Chief Justice Edward Pennefather—a learned man, an upright man, an impartial Judge, and as good a man as had ever lived either in Ireland or in England; and yet the memory of that excellent Judge could not be exempted from the attack of the hon. Baronet. [Sir J. SHELLEY expressed dissent.] Yes, he (Mr. Napier) had heard that—deaf as he was—he had heard even his own infirmity also dragged before the House. He admitted that there had been a time when it would have been the proudest gratification of his ambition to obtain a seat upon the bench, but, if the office of the Judge were to be hereafter subjected to such attacks as he had just listened to, he would rather strip the gown from off his back than submit to unconstitutional dishonour, even if he heard as well as the hon. Baronet himself. Why was the attack made? Was any moral impropriety attributed? None. Any misconduct? None. Had any suitor suffered? None. The hon. Baronet had had the means of information before him, and did he pretend to say that he could bring forward a case in which any man had suffered civilly or criminally an injustice? It was the duty of the Judge to decide between the Crown and the sub- 770 ject, and therefore of all men he should be most independent; but what was to be the position of the Judge now? If he had a Government that would protect him, he might rest easy: but, if the Government wished at any time to drive him from the bench, he would be deserted. He (Mr. Napier) said that this was a great and vital question. He saw opposite the right hon. Baronet the Member for Carlisle (Sir J. Graham), and he remembered his honourable, manly, and upright conduct when he voted in opposition to his Government when Baron Smith was attacked in that House. He had read also the speech of the late Sir Robert Peel upon that occasion, which redounded to the everlasting honour of that great and able statesman. What did the hon. Baronet propose to do now? He complained of the administration of justice; but what was the justice of the hon. Baronet? In the absence of the accused, without evidence, without a charge, but simply parading an exaggerated account of the infirmities of venerable men, he asked them to do what? and for what? There was no middle term between resignation and removal. There might be occasions when a Member of a Government might advise a Judge to resign, but it must be left to his own choice when he would resign; and if he felt that he could discharge the duties of the office efficiently, and that no suitor was injured, it was not against his duty to remain upon the bench. Take the case of Chief Justice Lefroy. He did not believe that at the present moment, either in England or Ireland, we had an abler judge, or one more competent to administer every part of the judicial duty than Chief Justice Lefroy; and what was the allegation against him? His age had been brought before the House. Well, was that a crime? Chief Justice Lefroy was guilty of the atrocious crime of being an old man! There was to be an Address to the Crown, he supposed, from both Houses of Parliament. Would the hon. Baronet get Lord Lyndhurst to move it in the other House? If he looked round the present House of Commons, he should see several old men both vigorous and wise; and some of the oldest combining the energy of youth with the experience of age. Was that a disadvantage? As for Baron Pennefather, he might safely say that he could see further than the hon. Baronet—if he had a good case, he should be happy to come under the surveillance of that learned 771 Judge; but, if he had a bad one, he would rather keep out of his way. Baron Pennefather was a very remarkable man, and be doubted whether, in powers of memory, vigour of mind, and strength of intellect, he was surpassed even by that extraordinary man, Lord Lyndhurst. During last term, by the new arrangements, arising out of the Common Law Procedure Act, each of the Judges in Ireland sits in his turn, in what we call the Consolidated Nisi Prius Court. Baron Pennefather has taken his turn regularly in that Court, where he had been so ripe and ready, and had so well discharged his duty that scarcely any question had been raised upon the points decided by him; and, in addition to doing duty in that Court, he had sat every day in the Exchequer Court. Baron Pennefather was an old man, he was a venerable and virtuous man, and he (Mr. Napier) believed in his conscience that, if they polled Ireland through, they would find that there was no Judge more respected, more venerated, and more valued than Baron Pennefather. During thirty-five years of judicial life that learned Judge had never been absent but one circuit, owing to illness, and part of another on account of the severe illness of his respected son, which terminated fatally. With regard to Chief Justice Lefroy, he was not aware that he had ever been absent. Judge Torrens had been thirty-three years on the bench, and had been absent only twice—once soon after his appointment, when, having been greatly overworked at Limerick when he was a serjeant, Lord Wellesley, who had appointed him, would not allow him to go upon circuit, because, as he said, "he did not want to kill him;" and the second time, when illness was the cause. The people of Ireland were expected to obey and respect the laws, those laws must be administered by the Judges, and those Judges must be independent; but what would the consequence be if it were to go forth from that House, on the statement of the hon. Baronet, listened to by Her Majesty's Government without objection or comment, that six of Her Majesty's Judges in Ireland were incapable from their infirmities of discharging their duty?
§ SIR JOHN SHELLEY
I must beg the right hon. and learned Gentleman's pardon; I quoted from a question which was put last Session to the Secretary for Ireland by an hon. Member on the 772 opposite side of the House. [Cries of "Name!"]
§ MR. H. A. BRUCE
I beg to say that I was the Member who asked the question. One of those Judges was then in Spain.
At all events the hon. Baronet had charged incapacity against three of the Irish Judges. He (Mr. Napier) asserted that the House could not constitutionally interfere in a matter of that importance, unless it was prepared to follow up its interference by an address to the Crown. That would be in the nature of a regular criminal proceeding. Well, here was the case selected of three Judges, and the charge was that they were old. Was that a crime? Were they incapable? Of that there was not the shadow of a proof in the case of Chief Justice Lefroy; and, in regard to the other two Judges, there was only the hon. Baronet's unsupported assertion. Would the House allow him (Mr. Napier) to place before it the best of testimony as to the capacity of Baron Pennefather? An effort was made to urge that venerable man to retire, and it was intimated to him more than once that in the opinion of the Government he ought to do so, for that the threatened Motion would not be resisted by the Government. That, if it implied anything, was a significant hint that if he did not withdraw voluntarily the House of Commons would make him do it. That was the way in which they treated a man who in a celebrated case in his Court so recently as the last year—that of "Butler v. Mountgarret"—distinguished himself by the delivery of one of the ablest judgments ever pronounced. It had been his (Mr. Napier's) pride to sit at the feet of that eminent Judge ever since he first practised his profession, and to catch wisdom and learning from his venerable lips. That man, whom he revered and loved, and who was one of his oldest constituents, being abandoned by the Government, had appealed to him (Mr. Napier) to take up his case and defend his cause. He was an aged and a widowed man, who had been bereaved of one son, who died in 1849, and of another, who had since then been taken from him. He laboured also under the infirmity that had been so unfeelingly described, and therefore, when he received his letter the other day containing his appeal, accompanied by his own touching account of the way in which he had 773 been treated, he (Mr. Napier) must confess that he could not help shedding a tear over the recital. He would now take the liberty of submitting to the House the testimony of Baron Pennefather's colleagues on the bench as to his fitness for the discharge of his judicial duties. And first he would quote a letter which he (Mr. Napier) had received from Chief Baron Pigott, dated the 12th instant. That distinguished Judge said:—Yon request me to acquaint you with my opinion of Baron Pennefather's 'capacity and the assistance which he is able to give in discharging the judicial business of the Court of Exchequer. In my judgment, Baron Pennefather's capacity is as great as I have ever known it. I have found no diminution in the value of the assistance given by him in discharging the judicial business of our Court. I ought, I think, to state that as long as I have known him he has been in the habit of desiring the material parts of documents to be read out in Court, rarely perusing them on the bench, and apparently relying—probably from long practice, or from early self-discipline—upon the singular memory with which be is gifted. In the readiness, accuracy, and tenacity of that memory, in quickness of apprehending and collecting facts, dates, and arguments, in hearing, in voice, in reasoning powers, whether displayed in consultation with his colleagues or in explaining the grounds of his judgments, and in the use of all these faculties while applying his great knowledge and experience to the practical despatch of business in the Court, he exhibits the same clearness, acuteness, and vigour, which have always distinguished him. It is difficult to convey to those who have not seen him engaged in that business the amount and the value of the aid which he contributes towards its execution. It is unspeakably painful to me to communicate in this manner upon such a subject as that of the qualifications of one of my colleagues on the bench. I collect from your letter that you seek this information with a view to an expected proceeding, of which you understand that one of the objects is to assail Baron Pennefather, and with a desire to defend him if so assailed. Let me freely say that nothing else would justify the inquiry or induce me to answer it. But I feel that I should act a tame and unworthy part towards a Judge before whom I practised much in my busiest years at the bar, and towards a colleague from whose great qualities I have received the most valuable assistance, rendered with the most frank and cordial co-operation for more than nine years upon the bench, if I withheld this reply.What did Baron Richards say on the subject? Writing to him (Mr. Napier) on the 4th instant, he stated—In reply to your letter, this moment received, I am happy to have an opportunity of expressing my full concurrence in the general opinion entertained in this country as to the judicial efficiency of my most excellent friend, Baron Pennefather.With regard to the unfortunate infirmity of sight under which he has lately laboured, I can 774 only say, that during the time I have had the honour and pleasure of sitting beside him on the Exchequer bench, up to the present moment, I have never known of any inconvenience to the public having arisen from that cause.His memory and vigour of mind are most extraordinary, and I can bear full testimony to his great power of taking up facts, and to his general aptitude for business, notwithstanding the infirmity to which I have alluded.Baron Greene, his other colleague, on the 4th instant, also wrote thus:—You are aware that it was his turn to sit during the last term in the Consolidated Nisi Prius Court. Notwithstanding his duties there, he sat with us in the Exchequer almost every day until an unusually late hour, the business of the Court having been of more than ordinary extent. I do not think that I have ever known him display greater ability, judgment, or general efficiency than during this period. His profound legal knowledge, sagacity, and wonderful memory have not been more conspicuous at any time since I first knew him. We have all, I feel sure, entertained the utmost deference to his opinions. For myself, I can truly say that I should feel the greatest distrust in any one of mine in which I might unfortunately differ from him. His judgment in the case of Kelly v. Thurles, in which I was one of his colleagues, excited the admiration of all who heard or read it; and his exposition of the law in the recent case of Butler v. Mountgarret evinced a degree of learning, accuracy, and discrimination rarely equalled in either country. His devotion to his judicial duties is well known. I believe I am correct in saying that be has only absented himself from one circuit during his long judicial career. The high opinion which we all entertain of him is, I know, shared by the bar, many of whom I have heard express it in the most unqualified terms. I have never heard any complaint or dissatisfaction expressed, either in public or in private, as to his performance of his duties. Personally, I have long, I acknowledge, entertained great affection and regard, as well as respect, towards him, and should feel extremely concerned that he should be selected as an object of attack, to which he is as little open, in justice, as any member of our body.To these testimonials from Baron Pennefather's colleagues he (Mr. Napier) begged to add his own. Having had the amplest opportunities of judging of his efficiency, he could safely say that there was not a single Judge even now on the bench in either country before whom he would place any question concerning life or property with greater confidence that strict justice would be done than he would do before Baron Pennefather. The hon. Baronet said, indeed, that when on circuit this Judge was incapable of inspecting documents and comparing handwriting in cases of alleged forgery. That, however, was a duty which he always understood was invariably left to the jury. Moreover, some of the ablest 775 lawyers—among others the former father of the bar, Mr. Holmes—were in the habit of never taking a single note, believing that by devoting their undivided attention to a case as it proceeded they could gain a clearer and a better view of its merits than they could by puzzling over a mass of crabbed notes. Now, that held especially good in regard to Baron Pennefather, before whom, since his sight had become as imperfect as it now was, a remarkable question as to the validity of a will, involving the disposition of a property of £10,000 a year, was tried upon an issue directed by the present Lord Chancellor of Ireland. The late Attorney General for Ireland (Mr. Brewster) was engaged in the case, which lasted for five days, and this able Judge, blind as he was, charged the jury at the end of that protracted trial without a single objection being raised on either side. Application was afterwards made to the Lord Chancellor for a new trial; and how did his Lordship speak of the competency of Baron Pennefather on that occasion? The Lord Chancellor said:—The Court is well warranted in concluding that it was in all respects fair and impartial; that the evidence, with the whole of the testimony on both sides, and the consideration of the credit of the witnesses, were properly laid before the jury by the Judge, and that the legal considerations bearing on the case, and their just application to the evidence, were rightly stated, and explained to the jury with all the fulness and accuracy to be expected from the great learning and intelligence and the long experience of the very eminent Judge before whom the case was tried.That was the opinion expressed by the Lord Chancellor of Ireland, in 1853, of the Judge whose impartiality, learning, ability, and fitness were further testified to by three of his eminent colleagues, whose letters, penned in the present month, he had just read to the House. Yet, that Judge, they were told, was to be condemned by the House of Commons, to have his physical infirmities unfeelingly criticised, and to have a stigma cast upon him for incapacity on account of infirmity and age. If such a course were to be habitually persisted in, would any Judge of spirit and independence afterwards consent to take his seat upon the judicial bench? But could they expect learned men any longer to devote their lives to the public service if such unjust proceedings as these were to hang over their heads? No doubt Baron Pennefather might have retired years ago if he had thought fit; but in his letter he 776 said, with his usual perspicuity and force, in which no man could excel him, that he had implicit confidence that the House of Commons would do him justice; that he desired nothing more; that he was anxious to uphold the independence of the Judges, and would not willingly have it assailed by any branch of the Legislature; but that if it was his misfortune to be so unjustly attacked, he must of course try patiently to bear it. Then, in the language to which every man of justice and honour would at once respond, he proceeded—I consider, abstractedly speaking, the Motion as most injuriously trenching upon the independence of the bench and insulting to the individual Judges. If there be a complaint made, it may be right in a proper way to investigate that complaint; but if there be no complaint or inconvenience felt, may it not be safely left to each Judge to decide for himself at what time he ought to resign a trust which he holds for the public benefit, and which he ought not to hold one moment longer than it is for the benefit of the public? If any one disinterested person acquainted with the circuit had stated to me any inconvenience, or even suspected inconvenience, to arise from my going circuit, I would cheerfully examine into the matter, consult those likely to possess information, and if the suggestion appeared to be well founded, would thankfully receive it, and not suffer the public to be injured or myself disgraced; but, if there be no such complaints, I cannot think that the ends of justice are furthered by a Motion like the present, or that the Government does its duty in not resisting a procedure which exposes a Judge to contumely when about to undertake high and responsible duties.The eminent Judge sat only a few days ago under a Commission trying prisoners in Dublin. Had it been even alleged that any failure of justice had occurred in consequence? Had the Government been called upon to pardon any person whom he had suffered to be unjustly condemned? Nothing of the kind. He would ask any Member connected with Ireland, professional or non-professional—any "disinterested person"—whether he was prepared to name any civil or criminal case in which injustice had been done by Baron Pennefather? Let the House reflect upon what it was asked to do. It was called upon to adopt a very grave proceeding, so far as the credit of the Judges was concerned, whether the Motion of the hon. Member for Westminster was brought forward in good faith, or was used as a mere stalking-horse. If the hon. Baronet proceeded hereafter to move for a Committee of Inquiry he would follow a most unconstitutional course, unless he was prepared to go further and move an Address to the 777 Crown; yet it was manifest, from the silence and conduct of the Government, that they approved his conduct, and were accessories either before or after the fact. The hon. Baronet had enjoyed every opportunity of getting information from them, but had not stated a single fact to the House, unless that name might be given to some ridiculous stories of discontented suitors, and an instance in which the Judge refused to take a case out of the hands of the jury and decide it himself The truth was, that Baron Pennefather, above all the Judges in Ireland, left matters within the province of a jury to be decided by them. But the hon. Baronet, finding nothing to suit him in Ireland, had referred to certain English Judges who had retired. He (Mr. Napier) remembered when his excellent Friend and master Sir John Patteson proposed to retire, the Chancellor of the Government of the noble Lord the Member for the City of London, to his honour, sent for him, and pressed him to remain on the bench, saying that he might confine himself to town and chamber duties, and that if he felt any difficulty about going circuit a substitute would be found for him. Chief Justice Downes, who had a greater infirmity than Baron Pennefather, was not asked to go circuit for many years. There could be no difficulty about the expense, for a Judge who did not go circuit was not paid the sum appropriated for that special service. Nor should he omit to state that Baron Pennefather—perhaps from his great love of his profession, perhaps from most of his family having been taken away by death—liked the duties of the bench, and would regret to be debarred from their performance. Was the House prepared to cast a stigma upon an old and venerable man, who had discharged his duties efficiently? It would do so by listening to such imputations as those of the hon. Member for Westminster. One effect would be to encourage the public press to attack the Judges. Mr. Justice Crampton was in a public newspaper already placed in the same category with Baron Pennefather, although he was one of the most active and able Judges on the bench, and—to use a common expression—thoroughly "wide-awake." If Judges were to be treated thus with the sanction of the Government or the House, the people could not respect them, and if the respect of the people for the Judges were lessened, a blow would be struck at the constitution and the administration of justice. What should accompany old 778 age? Love, honour, troops of friends. Baron Pennefather had all these, and so had Chief Justice Lefroy. But the hon. Member for Westminster, knowing the Government did not intend to defend the Judges, had tauntingly anticipated that their case would be taken up by professional men, whom he called "aspirants for the bench." In his (Mr. Napier's) own case the hon. Baronet had told a gossiping story which had not an atom of foundation in truth or fact. If ever a seat on the bench were offered to him, he could assure the hon. Baronet that, if he believed that from any infirmity of sight or ear he should not be capable of discharging the duties, he would have the moral courage to refuse the honour. But it would be quite time enough to talk of that when the proposal was made. At present he wished to call attention to the gravity of the Motion under discussion, which he might term an attempt to bring the House of Commons to coerce Judges to retire. A Judge should be fearless in the discharge of his duty; but he would not be so if a Motion of this kind were carried, unless it was meant for nothing more than to afford an opportunity for abusing and calumniating honest and honourable men. Baron Pennefather had said to him (Mr. Napier), "If they want to know my age, I am eighty-two; if they want to know how many circuits I have gone, the number is sixty-eight; if they want to know whether I can go on with the business, I think I can—it is a pleasure to do my duty, and, as the Almighty has gifted me with capacity and the people are satisfied, I do not wish to put the country to the expense of a retiring pension." Now what he boldly asserted was, that this was an honest statement, to the accuracy of which many hon. Members on both sides could bear testimony. Baron Pennefather had confidence in the House of Commons. He knew there was nothing an Englishman liked better than fair play, and was convinced the House would not cast a stigma on a public servant who had been faithful and impartial in the discharge of his duty. But Judge Torrens had also been singled out for attack. What was the matter with him? During the last term he sat in the Court of Common Pleas, and now he was doing chamber business. He looked as fresh as any Judge could do—as fresh certainly, and less anxious, by one-half, than the First Lord of the Treasury himself. Chief Justice Lefroy had likewise been included in the wholesale attack on the Irish bench, 779 although he finished his heavy list of business in a shorter time than younger Judges, and no person in or out of that House could point to a single defect in the performance of the duty of that eminent and learned man. Were they to attack a Judge because he was an old man? If so, they would have Members moving for a return of the age of Cabinet Ministers, of our generals and admirals. It was impossible to say where it would stop. The preamble of the Act of Parliament, quoting the terms of n Speech from the Throne, declared that the independence of the Judges was "essential to the impartial administration of justice, one of the best securities for the life and liberty of the subject, and most conducive to the honour of the country." If the Judges were now to be subjected to such an interference as that proposed, by the hon. Member for Westminster, could they be expected to act with perfect independence? If they were supported by a friendly Government and deserted by an unfriendly Government, what must be the effect on the administration of the law? Let our Judges be above everything but the fear of God; let them discharge their duty faithfully and efficiently, and he had no doubt the House of Commons would respect and honour them, though they might be old and subject to infirmities such as those which the House had heard that evening.
§ SIR GEORGE GREY
Sir, the observations which the right hon. and learned Gentleman has made upon the Motion of the hon. Member for Westminster (Sir J. Shelley) were, I think, quite uncalled for. In the first place he assumes and alleges that there has been some arrangement between the hon. Baronet and the Government. He next assumes that the Government are unfriendly to the Judges in Ireland, and that the hon. Member for Westminster has brought forward his Motion with an assurance that the Government were actuated by this hostile feeling. That is an unfounded assertion. In the third place he lays down an unconstitutional position, as to the right of this House to inquire into the manner in which the Judges discharge their duties. Let me remind the House how this question arose. In the course of last Session—in May—a question was addressed by the hon. Member for Merthyr Tydvil (Mr. H. A. Bruce) to my right hon. Friend the Chief Secretary for Ireland, whether the Government were aware of the state of the 780 judicial bench in Ireland, asserting his belief that several of the Judges were incapacitated by age and infirmities from the regular discharge of their duty, and that in consequence a charge for the payment of substitutes who went circuit was thrown upon the Consolidated Fund. If that is the case, we have a right to inquire into such an allegation; and if we have the right—and the right hon. and learned Gentleman knows that we have—to present, on sufficient grounds, an Address to the Crown, praying for the removal of a Judge, we surely have the right to institute a preliminary inquiry—if there be a primâ facie case for an inquiry—to ascertain the truth of allegations imputing neglect of duty to a Judge, in order to decide whether ulterior proceedings should be adopted or not. Our right, therefore, to entertain the Motion is undoubted, although I fully agree with the right hon. and learned Gentleman that charges ought not to be lightly brought against a Judge, nor unless it is intended to follow them up with some inquiry to ascertain their truth. The right hon. and learned Gentleman says the Government have once, twice, and even three times communicated to Baron Pennefather a threat that, if he did not resign his seat as a Judge, he would be abandoned to the censure of the House of Commons. Now that, Sir, is not a correct statement of the case. I was present in this House last year when the question was put to my right hon. Friend the Secretary for Ireland on this subject by the hon. Member for Merthyr Tydvil. My noble Friend at the head of the Government was also present on that occasion. I can say for myself that the matter had never before been brought under my attention, and that I had never heard any charge brought against the Judges of Ireland, either of incapacity, or of having absented themselves from the discharge of their duties; but I believed it to be my duty, considering the position I held, in a private letter which I addressed to the Lord Lieutenant of Ireland, to inform him that such a statement had been made in this House, and I requested him to furnish me with information as to the grounds on which it could have been made. I at the same time stated that if any of the Judges in Ireland were habitually absenting themselves from their duties, or, on account of any other infirmity, applied to the Lord Lieutenant for substitutes to go the cir- 781 cuit in their place, it would be a matter for consideration whether the Government could give their sanction to such a practice, or consent, if they had a discretion in the matter, to provide from the public funds for the payment of such substitutes. I received from my noble Friend the Lord Lieutenant an answer to the effect that the statement which had been made in this House was greatly exaggerated; that whatever might have been the case as to the absence of any Judges from circuit, at the time he was writing every Judge was in Dublin, and in the discharge of his duty; that he was informed also that every Judge would go the then next circuit except Baron Richards, who was expressly exempted from doing so on account of other duties having been imposed upon him; that the only palpable case was that of Baron Pennefather, who, though he spoke of him in terms of the highest admiration on account of his high character, and of the intellectual attainments, and vigour of mind for which, notwithstanding his advanced age, he was distinguished, was unfortunately totally blind, and, that though he believed Baron Pennefather discharged his duties with great ability, he could not on principle justify the retention of his seat by a Judge who was incapacitated by the loss of sight from fulfilling some of those duties which it was unquestionably the part of a Judge to perform; and that while he thought that Baron Pennefather would be a great loss to the bench, and while he admitted that the extraordinary powers of Baron Pennefather's mind in some degree compensated for his want of sight—it was impossible but that his blindness must, to a certain extent, incapacitate him from the efficient discharge of some of the duties of a Judge. It thus appeared that the charge that several of the Judges absented themselves from their duties through incapacity was groundless, and fell to the ground. As, however, the hon. Baronet (Sir J. Shelley) had given notice of a Motion on the subject, it became the duty of the Government—not knowing what the precise form of the Motion might be—to consider what course they should take. Shortly before the meeting of Parliament the Lord Lieutenant of Ireland addressed to me another private letter, in which he repeated the high opinion he entertained of Baron Pennefather, but adverting to his opinion that as a question of principle the retention of his seat on the bench could not be justified, as he was 782 permanently afflicted with the infirmity of blindness; not with the slightest idea of exercising any undue influence on Baron Pennefather—not with the view of holding out to him anything that could be construed into a threat, although the right hon. and learned Gentleman chose to term it such—but with that kind feeling which is characteristic of the Lord Lieutenant—he further informed me that he had requested the Lord Chancellor to communicate to Baron Pennefather that if such a Motion was brought before the House of Commons he thought the Government would be unable to defend his continuance on the bench under the circumstances in which he was placed. He felt it his duty to Baron Pennefather to give him this information of the views which the Government entertained upon the subject. The right hon. and learned Gentleman says this communication was made again and again. I informed the Lord Lieutenant that I thought everything that ought to be done had been done—that Judges could only be removed by an Address from the two Houses of Parliament; that I thought no formal or official communication should be made to Baron Pennefather as to his resignation, and an intimation to this effect was conveyed to him by the Lord Chancellor of Ireland. To that communication no answer was received from Baron Pennefather, but the Government are perfectly aware that a communication has been, made to the right hon. and learned Gentleman (Mr. Napier), requesting him to state to the House the grounds on which Baron Pennefather thought it his duty to retain his scat. The right hon. and learned Gentleman has pretended to believe that the Government were not prepared as to the course which they ought to take on this Motion, and that in consequence they remained silent. But the true state of the case is, that knowing through the Secretary for Ireland that the right hon. and learned Gentleman intended to address the House, and to state the case for Baron Pennefather, they thought it but due to Baron Pennefather himself that the right hon. and learned Gentleman should have the opportunity of doing so before any Member of the Government rose to express his opinion. I have stated the whole of this transaction in so far as the Government is concerned. I may add, that in answering my first communication the Lord Lieutenant informed me that he had received from the noble Lord at the head 783 of the Government a letter, similar to the one I had addressed to him, asking for information on the subject. Now, I ask if there is anything in the course we have taken that is unconstitutional, or inconsistent with a due regard to the character of Baron Pennefather? If the Judges were neglecting any essential part of their duty, or were prevented from discharging it by infirmity or incapacity, such a fact should not be withheld from the House of Commons; and now that this question has been brought before the House, I have thought it my duty to state the opinion which, through the Lord Lieutenant, the Government has conveyed to Baron Pennefather. I may say, further, that I do not think his age is any disqualification, except in so far as it furnishes but slight hope—of which, indeed, I believe there is, unhappily, none—that he can ever recover the sight which, unfortunately, he has lost. As to the Motion before the House, I do not think it is well adapted to meet the case which the hon. Baronet wishes to establish. I believe with the right hon. and learned Gentleman (Mr. Napier) that Baron Pennefather has been regular in his attendance on circuit, and I believe the same may be affirmed of the other Judges to whom reference has been made. I made no inquiry regarding them, except what was implied in the general inquiry I addressed to the Lord Lieutenant, and I believe no charge of neglect of duty can be fairly made against them. At the same time the Motion, in my opinion, is one that the House ought to accede to. If any of the Judges are publicly charged in this House with neglecting their duty by not going circuit, this House has a right to ask whether the charge is correct—whether the absence is caused by sickness or other circumstances, and whether Judges who are incapacitated by permanent infirmity retain their seats on the bench. I believe the Returns will not establish the case that was implied in the statement of the hon. Member for Merthyr Tydvil (Mr. H. A. Bruce) last year; but, however that may be, there can be no question as to the right of the House of Commons to institute the inquiry.
§ MR. DISRAELI
Sir, I should not have presumed for a moment to prevent the House from proceeding to the important business which follows on the paper, had it not been for the observations of the right hon. Gentleman who has just addressed 784 us, and which appear to me so unsatisfactory, and to meet so little the merits of the question, that I cannot reconcile it to myself to remain altogether silent. I have not the honour of being acquainted with Mr. Baron Pennefather, and the only knowledge I possess of the circumstances which have been brought under our consideration by the hon. Baronet the Member for Westminster (Sir J. Shelley) has been gathered during this debate. I have, however, heard enough to convince me that the subject is one which ought to interest generally every Member of the House of Commons. I think, although the debate has been brief, that its origin, its conduct, and the whole course of the discussion have been somewhat remarkable. The hon. Member for Westminster has brought forward a Motion which, if it means anything, must mean—at least to unlettered ears—that in consequence of the age of the Irish Judges, they are unable to fulfil their duties to the public by going circuit. The right hon. Baronet (Sir G. Grey) confesses that, in consequence of a question which was put in this House last Session with reference to this subject, he felt it his duty—and certainly it was his duty—to communicate with the Lord Lieutenant of Ireland, and to inquire whether it was true that the Irish Judges did not discharge their duty to the public, and whether they did neglect to attend their circuits with the regularity which might be expected from men holding such important offices. The reply received from the Lord Lieutenant by the Secretary of State, according to his own admission, was, that the Judges did attend circuit sedulously and regularly; and then the right hon. Baronet gives an answer to a Motion, which is to convey a censure upon the Irish Judges, somewhat in the following manner:—We felt it our duty to ascertain whether the allegation that the Irish Judges did not attend circuit with the regularity the country had a right to expect was true or not, and we found that it was not correct. We found that the Irish Judges did attend circuit very regularly, but, by-the-bye, one of those Judges is blind, and therefore we shall agree to the Motion of the hon. Baronet. Now, Sir, I must say that does not appear to me to be a satisfactory mode of meeting the question before us. If the Government have ascertained from their researches, and from their official communications, that the assumption upon which the hon. Member for Westminster 785 has apparently founded his Motion is utterly groundless and fallacious, it appears to me that it would have been more satisfactory if the Government had dealt with this House in a more frank, candid, and straightforward manner; if they had made that declaration at once, and if they had assigned it as a reason for not assenting to a Motion which, in itself, is certainly not very important, which in its consequences cannot be injurious to the learned persons to whom it refers, but which—viewed in a certain aspect—may afford a precedent which many of us on both sides of this House may deeply regret. Some of the observations made by the right hon. Baronet the Secretary of State were, to my mind, so unsatisfactory, that I cannot refrain from adverting to them. The right hon. Baronet called my right hon. and learned Friend the Member for the University of Dublin (Mr. Napier) to account, upon a ground which appears to me to be entirely erroneous. The right hon. Baronet accuses my right hon. and learned Friend of asserting that the conduct of the hon. Member for Westminster, and, unfortunately, of the Government, is unconstitutional, because the hon. Baronet (Sir J. Shelley) has proposed, and the Government have assented to, the Motion now before us; and the right hon. Baronet says:— "Surely this House is not going to sanction the principle that it is not the duty of the House of Commons to inquire, if necessary, into the conduct of Judges, and even to take ulterior steps and address the Crown, if they think there has been any neglect in the administration of justice, or that any of the Judges of the land have not fulfilled their high duties to society." But my right hon. and learned Friend the Member for the University of Dublin never said anything of the kind. He did not deny or impugn the right and the privilege of the House of Commons to interfere if they suspected that the administration of justice was corrupt or imperfect. What my right hon. and learned Friend said, and said most justly, was this—"It is not politic, nay, I think it is not constitutional, for the House of Commons to interfere with the conduct of the Judges of the land, unless corruption or inefficiency can be imputed to them, and unless the House is prepared to act upon these imputations by an Address to the Crown." But I have not heard that any corruption is imputed, or that any inefficiency is alleged in the present instance. 786 ["Hear, hear!"] Are those cheers from the Treasury bench cheers of assent to the principle I am laying down? If they are cheers of assent, then I say that the course the Government are taking to-night is a spiritless course; and that, if such be their opinion, it was their duty not to have sanctioned the Motion of the hon. Member for Westminster, even if inefficiency had been imputed to the individual who is chiefly interested in this discussion not on the ground of his having failed to attend the circuit, but on the ground of that peculiar infirmity to which it is admitted he is subject. But the Motion does not refer to that infirmity. On the contrary, let the House remark this singular circumstance, that all the three cases alleged to night by the hon. Member for Westminster have failed. Had he said there are two Judges who do not attend circuit, and there is one who is blind; we could not deny the unfortunate circumstance of Mr. Baron Pennefather being blind. But the hon. Member for Westminster has framed his Motion with such singular mal-adroitness, that he absolutely does not touch on the one fact which is admitted in this debate, and which is really susceptible of demonstration. It is unnecessary, I should think, to repeat what every man of sane mind and political experience must be convinced of, that nothing can be more unwise, more impolitic, and more injurious, than forcing the Judges of the land into the House of Commons, unless there is one of those irresistible cases which renders it the duty of the House to interfere with the administration of justice. An interference in the administration of justice by the popular branch of the Legislature is the last and most solemn recourse to which the aggrieved subjects of the land can appeal. But in this case we have not a petition which refers to this learned individual. We have not a public complaint. We have not, strange to say, even an anonymous slander. We have not gentlemen rising in their seats, and reading articles from newspapers. The only article which has been read from a newspaper—read by a decision of which, before to-night, I was not aware—is absolutely in favour of the person attacked. Then, I ask, why are we to interfere? What is the cause of our interference, and what is to be the consequence of our interference? for that, I think, is a very grave question. What are we to think of a Government that assents to and sanctions this incoherent and inconsistent proposition of the hon. Member for 787 Westminster; and what are we to think of the opinion of the accomplished and amiable Viceroy whose advice they required? What is the answer to a perplexed Cabinet that consulted the Lord Lieutenant? The Lord Lieutenant writes to Her Majesty's Ministers, that so far as the public—I will not call it accusation, but the public—suspicion expressed last Session with regard to the Irish Judges—namely their inability to attend circuit—is concerned, he has the pleasure to inform the right hon. Secretary, that all the Judges are in perfect health, and that they are about to attend the circuits. He regrets, as an abstract principle, he cannot vindicate Judges being blind; but he feels it his duty to state, that if Baron Pennefather quits the bench, it would be to the serious injury of Her Majesty's service. [Expressions of dissent from the Treasury Bench.] If the Lord Lieutenant did not state that, he, probably, in much more graceful language expressed his opinion of the character, services, and career of Baron Pennefather than in the hurry of debate I have been able to command. I believe the Lord Lieutenant said his services were invaluable. Nay, more, as my right hon. and learned Friend has just told me, the Lord Lieutenant of Ireland informed Her Majesty's Government, in answer to the confidential inquiry of the Prime Minister and the right hon. Secretary for the Home Department, that if Mr. Baron Pennefather quitted the bench it would be a great loss to the country, and because the right hon. Secretary wants to give a hint to Baron Pennefather to quit the bench, we find him sanctioning this miserable and indecent Motion. Upon the constitutional point which has been stated by my right hon. and learned Friend the Member for the University of Dublin, and so misrepresented in argument by the right hon. Secretary, I imagine there cannot be, on either side of the House, the slightest difference of opinion. No man can think it advisable that the conduct of the Judges of the land shall be brought under discussion in the House of Commons, unless the case is clear and strong. But that a Motion of this kind, leading to no result, and introduced in a manner so little entitled to command the confidence of the House and the attention of the country that the Minister who assents to it proves by his own speech that, if granted, it really does not refer to the only point which can at all interest the House—namely, the peculiar 788 infirmity of one individual—that such a Motion should be sanctioned, appears to me to be one of the most unsatisfactory courses which the Government could take. So much for the constitutional point. Let us consider the personal points which have been touched upon tonight. This gentleman, whom I do not know, except by that fair repute which, all acknowledge—this gentleman is a Judge, and be is old. [Mr. HORSMAN: Hear, hear!] That is a great fault, according to the opinion of the right hon. Gentleman the Secretary for Ireland, who cheers the observation. [Mr. HORSMAN: No.] Then you think it a merit? If ever there were an unfortunate moment for alleging that that accident is a bar to fulfilling a great official position, it is the present. My right hon. and learned Friend the Member for the University of Dublin has very properly and very happily alluded to that great display of eloquence and intellectual power in another place a few nights ago which arrested the attention not only of this country, but of Europe, made by a man, who also was a Judge, and is even older than Baron Pennefather. What a compliment to the distinguished nobleman who brought forward the Motion on that night! Remembering its result, I think this must be the return by Her Majesty's Government for the division in the other House. When those who may not even agree with that noble and learned Lord agree in admiration of his eloquence and intellect, what a compliment to the House of Commons to ask them, by a sidewind, by a back door, to agree to a Resolution that Judges who are eighty-two years old are incompetent to the discharge of their judicial duties! But how did the debate which many of us witnessed, proceed that night? Who supported that noble and learned Lord? Were they youths? Were they green youths, who came into that great oratorical arena to vindicate the principles of the constitution, and by their learning and eloquence command the respect and attention of the country? There was not a man, I dare say, who had physical energy enough to be a candidate for the city of Westminster. That is possible. But that debate was conducted and sustained by men, very few of whom were inferior in age to this Irish Judge whose conduct is brought before the consideration of the House of Commons without a single public complaint having been alleged against him. And, 789 Sir, what answer would it have been by the Government, not very remarkable for their powers in debate, had their leader in another place risen on that occasion and said, "This is a most important question, and undoubtedly brought forward by one of illustrious reputation, with great eloquence and learning, and supported by half-a-dozen of the wisest and oldest men in the House, but I cannot believe the Peers of England will sanction a Resolution which old men have proposed, counselled, and supported." I cannot believe that the House of Commons, after a few minutes' consideration, will sanction this imputation against an individual whom all admit to be a man of great intellectual power—a Judge of great experience, of great respect, and perhaps, even now, of unrivalled efficiency in Ireland—whose panegyric has been read to them to-night, written by one who was his political opponent, who was promoted over that Baron of the Exchequer by political influence, but who, with a fairness that does him honour, has, on this important occasion, expressed in admirable language the clear conviction of his reason. Then, it is not age—but the crime that is never to be forgiven by the House of Commons is, that the Judge is blind! Why, Sir, I thought that was the peculiar characteristic of justice. [Loud cries of "Oh!"] It has been proved to-night, however, that it is not so. But this I say most certainly, that both in action and in meditation some of the greatest men, struck with blindness after their eyes have been sufficiently fed with images, have, under those circumstances, achieved and accomplished their greatest deeds. I need not remind the House that the greatest poem of modern times was written by a blind man, but of this I may remind the House, that the city of Constantinople, which even the Czar of Russia could not take, was taken by a blind man—the more than octogenarian, "blind old Dandolo." I believe the truth is, the Doge was nearer one hundred than the age of Baron Pennefather. Considering his services, I cannot believe that the House of Commons will lay down as a principle, that Baron Pennefather—a Judge who performs his duties in a manner unimpeachable, and with an efficiency unsurpassed by any member of the same bench on account of his age and blindness, requires an address to the Crown for his removal. Why, the very eminent per- 790 son to whom I have referred as having so distinguished himself within a few days in the other House of Parliament was couched within the last few years—within the last three years, I believe—suffering from the same infirmity. [Sir G. GREY: The noble Lord is not a Judge.] Not a Judge? Why it is no wonder that Her Majesty's Ministers have no confidence in the high Court of Appeal in the other House, when the Secretary of State for the Home Department comes down to the House of Commons and declares that Lord Lyndhurst is not a Judge. Is not Lord Lyndhurst called upon every day during the Session of Parliament to fulfil the highest judicial functions? [A cry of "Oh, oh!"] I am glad to hear that constitutional cheer from the First Lord of the Admiralty, but I thought it would have been heard in the Motion that is to follow the present. It is unnecessary to touch further on this subject. On the constitutional point there is but one opinion. Can there be two opinions upon the point of age? Sir, this is a Motion that it is confessed cannot injure the individual that it is aimed at, which cannot but redound to his credit. But whether it will redound to the credit of the hon. Gentleman opposite, or of the Government, I leave it to the opinion of the country to decide.
THE ATTORNEY GENERAL
said, he would not affirm that when a Judge had reached the age of eighty that was a reason for his retirement. So long as he preserved the faculties of mind and body necessary to the efficient discharge of the duties of his office, so long he might continue to retain his seat upon the judicial bench. It had been asserted that, on account of the advanced age of one of these Judges, he was incapacitated from going the circuit, and was compelled to send a substitute at the public expense. His right hon. Friend (Sir G. Grey) had stated that he felt it his duty to make inquiries on the subject last year, and that those inquiries were satisfactory. He could not, therefore, see why there should be any objection to the Returns moved for by the hon. Baronet the Member for Westminster. If the Returns proved as satisfactory as the information which his right hon. Friend received from the Lord Lieutenant of Ireland last year, then everybody would be satisfied, and the imputation would fall to the ground. The right hon. and learned 791 Member for the University of Dublin (Mr. Napier) had spoken of the calumniating charges brought against the Irish Judges, and particularly against Mr. Baron Pennefather. No one had questioned the integrity, ability, and impartiality of Mr. Baron Pennefather. The only question was, whether he continued able to discharge his judicial duties. There might be great exceptions to the infirmities that visited men. One man was as capable at ninety as another at fifty or sixty, but those were the exceptions; and, if it were said that after the age of eighty a man was usually capable of discharging the duties of a Judge, he must join issue with that assertion. He had not the honour of a personal acquaintance with Baron Pennefather, but, from the unanimous expression of opinion which reached him from Ireland, he was perfectly satisfied that Ireland had never bad an abler or more upright Judge. He believed, also, that Baron Pennefather was intellectually as capable as at any moment of his life to discharge the duties of a Judge. But it appeared that he laboured under an infirmity, which, in his (the Attorney General's) opinion, incapacitated any man from discharging all the duties of a Judge. If his judicial labours were confined to sitting in banco in the Court of Exchequer, he would be, no doubt, as capable as ever of appreciating forensic arguments, and of coming to a sound judicial decision. But the functions of an Irish, and also of an English judge, were not confined to sittings in banco. He had to go the circuit, to sit at Nisi Prius, and he had a more solemn duty to perform—namely, to preside in courts of criminal judicature. Witnesses were to be examined vivâ voce in the presence of the Judge and jury, who were to form their judgment upon their character by their demeanour. Would any one tell him that it was not a most important part of the functions of the Judge to watch the witnesses, to mark their demeanour, their gestures, and everything that passed over their features? It might be said that this was the province of the jury; but the jury were often powerfully aided by the Judge in coming to a conclusion, and who did not know that Judges in their charges constantly commented upon the manner in which the witnesses had given their evidence, and their demeanour? Then, again, it was the duty of the Judge to take notes of the evidence. It was true it was stated 792 that Mr. Baron Pennefather had a shorthand writer to take notes for him, but he could only have them read to him after the trial, and at the time of his charging the jury he had no opportunity of knowing whether the shorthand writer's notes were correct or not. Now, juries often desired to hear portions of the Judge's notes read over to them. It was also the undoubted right of every man who was put upon his trial to call upon the Judge to read portions of the evidence to the jury. Counsel had the same right, and, he would ask, what must be the condition of the parties, the jury, and the counsel, in a cause, if they demanded the evidence to be read over to them in such a case? It would be a most unseemly and painful spectacle if such an application was made to Baron Pennefather. He admired as much as any man the attainments, talents, and character of Baron Pennefather; but he thought if the statements relative to his physical infirmities were true, the time had come, however great the loss might be, when he ought to retire from the judicial bench.
§ SIR FREDERIC THESIGER
said, he could not help thinking the hon. and learned Gentleman the Attorney General had endeavoured to lead the House entirely astray from the subject under consideration. The House, it would appear, were not considering the incapacity of Baron Pennefather, or whether he was visited by infirmity which rendered it proper and expedient he should retire from the bench. But from the observations of the hon. and learned Gentleman, the House was induced to believe that the object of the Motion was to effect the removal of Baron Pennefather. [Cries of "No, no!"] Why, what did the hon. Baronet (Sir J. Shelley) ask for? That a Return be made of the date of the call to the bar of each of the Judges of the superior courts of law in Ireland; the dates of their respective appointments as Judges; the number of times each has been absent during the whole of any assize, or, if absent during a part only, stating what part, and the reasons, if any, given for such absence; also, in how many, and in what instances, substitutes have been appointed by the Crown to preside at any assize, or portion thereof, in the absence of any such Judge, giving in each case the name of the town. But what were the grounds laid by the hon. Gentleman for this Motion? He brought forward the 793 cases of three Judges, and three only—Chief Justice Lefroy, Justice Torrens, and Baron Pennefather. He had strongly adverted to the age and infirmities of Baron Pennefather, and the right hon. Baronet (Sir G. Grey) had spoken of a Return that the Government had obtained with reference to these matters, admitting that in the three names mentioned there had been no one instance in which one of these Judges had failed in his duty.
§ SIR GEORGE GREY
said, the Returns established that there had been no want of regularity on the part of one of these Judges in going the circuit. With regard to the others he had no information.
§ SIR FREDERIC THESIGER
said, he wished to remind the House that his right hon. and learned Friend the Member for the University of Dublin had given information on this subject, and the House were prepared to accept that information as accurate. What, then, was the object of the Motion? Did the hon. Baronet the Member for Westminster mean to say that there were any other Judges in Ireland who did not faithfully discharge their duties? Surely the House would not grant a Motion of this kind without having some grounds laid before it. The hon. Baronet had not attempted to bring forward any facts to establish his Motion, and the House was compelled to believe that but for the circumstance connected with that distinguished Judge, Baron Pennefather, neither this Motion nor any other having reference to the Irish Judges would have been brought forward. His hon. and learned Friend the Attorney General had done full justice to the ability, learning, and efficiency of Baron Pennefather, but he seemed desirous of making some abatement in his praise, for he said that in consequence of the infirmity of blindness, he was unhappily unfit to sit on the judicial bench. His hon. and learned Friend seemed to consider that there was a certain period of life at which judges might be marked as incompetent to sit on the bench. [The ATTORNEY GENERAL: Quite the contrary.] Why, his hon. and learned Friend had said that Judges who had attained the age of eighty ought not to continue in the Commission. [The ATTORNEY GENERAL dissented.] He had quite misunderstood his hon. and learned Friend, then, if such had not been his meaning; but he hoped, nevertheless, that he would himself adorn the bench at eighty. He 794 certainly had understood the Attorney General to say that at that time of life Judges should be warned to retire. His hon. and learned Friend said, that beyond that period of life Judges were not fit to preside in a criminal court, where it was most important for the Judges to observe the demeanour of a witness, and assist the jury with his opinion as to whether a witness was a witness of truth or not. With great deference to his hon. and learned Friend, he (Sir F. Thesiger) thought a Judge would very much interfere with the functions of a jury, and pursue an unusual course, if he made any observations to the jury on the demeanour of a witness. He had heard Judges say to juries over and over again, "You hear the observations of the witness in the box; it is for you to say whether you will credit him or not." But his hon. and learned Friend said, that a Judge who was unfortunately blind could not take notes—one of the most important functions of a Judge. Now, there were various modes of taking notes. Some Judges took notes very carefully, and some very slovenly; but he remembered that Chief Baron Alexander went circuit for a number of years, and that his marshal sat by his side and took notes for him. [The ATTORNEY GENERAL: They were read by him afterwards.] They were now on the question of taking the notes, not of reading them. Lord Lyndhurst, when he was Chief Baron of the Exchequer went circuit, and his notes were taken by his marshal. But the taking of a note must distract the attention of the Judge, and he (Sir F. Thesiger) thought it would tend considerably to the advantage of the administration of justice if shorthand writers were appointed in every case, whose notes could be referred to as evidence as to what a witness might have stated. He could not see the necessity or the great importance of a Judge being able to take notes. Judges frequently gave a summary of the case instead of reading their notes; and he heard that such was the remarkable memory of Baron Pennefather, that he could give all the facts of a complicated case just as distinctly as if he had been reading his notes word for word. His right hon. and learned Friend the Member for the University of Dublin had referred to the remarkable trial of an issue in the Court of Chancery in Ireland in 1853, to try the validity of a will. The trial lasted for five days, and Baron Pennefather sum- 795 med up with such remarkable accuracy, that when an application was made to the Lord Chancellor for a new trial, he expressed himself in the highest terms of the learning, intelligence, and ability of the learned Judge. But were they trying Baron Pennefather here? Were they trying whether he ought to retire from the bench? There was nothing in the Motion of the hon. Baronet the Member for Westminster to that effect. They were merely called upon to ascertain the calls to the bar, and the elevation to the bench of the Judges of Ireland, and the numbers of times they had attended the assizes and been absent therefrom. And they found in all the instances mentioned by the hon. Baronet that the Judges had been punctual in their attendance. He felt bound to say, therefore, that this Motion was intended indirectly against Baron Pennefather, and to remove with something like a stigma a man who had been one of the most distinguished ornaments of the bench for many years. He was sorry to find, that when no foundation had been laid for the Motion, the Government had not felt it incumbent on them to refuse to sanction the Return, which would reflect most seriously on the judicial bench, be productive of mischief, and seriously affect the administration of justice in both countries.
§ MR. STUART WORTLEY
said, all the information which he possessed upon this question had been gathered in the course of the debate, but he wished to state the grounds upon which he was unable to vote for the Motion. He could not vote for it without asserting that there was a primâ facie case of habitual abandonment of duty made out against some of the Irish Judges, whereas the right hon. Baronet the Home Secretary stated that the result of the inquiries which had been addressed to the Lord Lieutenant was, that there was no reason to complain of the manner in which any of those learned Judges discharged their duties. Then, they bad the unexceptionable authority of the right hon. and learned Gentleman opposite (Mr. Napier) for the fact that the distinguished Judge who was the principal object of the Motion, so far from having habitually absented himself from circuit, had always, notwithstanding his infirmity, punctually attended to his public duties. Under such circumstances he could not vote for the Motion; but he wished to guard himself against being supposed to 796 give the slightest sanction to the doctrine that any learned Judge, however distinguished and able he might be, was fully competent to try jury causes, especially criminal causes, if God had afflicted him with loss of sight. Many of Baron Pennefather's friends had very likely represented to him all the arguments which had been brought forward to-night to induce him to retire from the bench, and no doubt the learned Baron, in retaining his seat, had been actuated only by a deep sense of duty, There was another reason why he could not vote for the Motion, that the House of Commons ought not to adopt such a Motion unless there was a primâ facie case for going further. Although he thought the affliction of blindness was a disqualification for a Judge, especially for a circuit-going Judge, he was unwilling to adopt so strong a course as that proposed. But he could not help thinking that the hon. and learned Member for Stamford (Sir F. Thesiger), in the course of his observations, alluding to two instances of Judges not taking notes, carried his expressions further than his cooler judgment would have sanctioned. He (Mr. S. Wortley) remembered but little of Chief Baron Alexander, but he remembered the more illustrious man, Lord Lyndhurst as Lord Chief Baron, who, indeed, did not take I notes himself, but had his secretary or marshal to perform that duty for him—Mr. Walton, now a Master of the Court of Exchequer, a distinguished and able man. Lord Lyndhurst had every faculty at command, and while another was taking the notes his powerful mind was acting, and his memory acted as a check upon the notes. But that was not the case of a Judge who, unable to take notes, was also unable to read them. Besides, as the hon. and learned Attorney General had observed, one of the main duties of a Judge, especially in criminal cases, was to observe the persons and demeanour of the witnesses. There was also another class of cases, criminal frauds, in which books were produced, and in which it was the duty of the Judge to examine those books, and to point out to the jury how far their contents threw light upon the subject at issue. Upon these grounds he could not sanction the notion that a Judge so afflicted was competent to all his duties. In banco he might be perfectly so; in equity also; but upon circuit he could not by his vote admit that it was so. It was with reluctance he had 797 made these observations, but he did not wish, by a silent vote against the Motion, to commit himself to opinions in which he did not concur.
§ MR. GEORGE
said, he should consider himself unworthy of the seat he occupied—unworthy of being a member of the Irish bar—and unworthy of the friendship with which he had been uniformly treated by the venerable and learned Judge, who was the chief subject of the present discussion, if he gave a silent vote, and if he hesitated to express, in the strongest terms, his entire disapprobation of the Motion now before the House, of the party to whom it had been entrusted, and to declare its unconstitutionally and entire inapplicability to the learned person against whom it was directed. An attempt had been made to show that this was the Motion of the hon. Baronet the Member for Westminster; but he asked whether if anybody in that House thought that it was anything short of an indirect Motion on the part of the Irish Government? He held in his hand a document which would satisfy every individual in the House that this was a Motion of Her Majesty's Irish Government, the object being to displace at least one member of the Irish bench, to what end he would leave the House to infer. The Home Secretary had truly stated that communications did take place between the Irish Government and the venerable Baron Pennefather; but he insisted that those communications were initiated by the Government, and that as early as the 10th December last the venerable Baron was waited on by the Lord Chancellor of Ireland, and told in terms which it was impossible for him to doubt, that circumstances existed which made it advisable that he should leave the bench—that a Motion was pending in the House of Commons which the Government must support, and that if he did not withdraw, he must take the consequence. He (Mr. George) had it from the lips of that venerable Judge, that on the first occasion he scorned to give a reply to the Lord Chancellor; that on the second occasion, when waited on by the Lord Chancellor, he declined to give a verbal answer to his communication, but requested that if in reality such a proceeding was to take place in the House of Commons, and the Irish Government were a party to it, the communication should be put in writing. He now held in his hand a letter, dated 24th 798 January last, addressed to Baron Pennefather, by the Lord Chancellor of Ireland, in which he said—My dear Baron—On the occasion of my last interview with you I promised to inform you if it was intended by the Government to make you any official communication by letter on the subject on which I had conversed. I, therefore, write this note to say that no such communication is intended—it being considered that in informing you, as I have done, of the course intended to be taken on the part of the Government in reference to the Motion which it is expected will be brought forward early in the Session on the subject of the judicial bench, so far as it may relate to the peculiar circumstances of your case, everything has been done that is required of the Government in anticipation of the Motion.The noble Lord added—It is with sincere regret and painful feeling that I now repeat that it is the opinion of the Government that it would be impossible for them to defend your continuance on the bench.Now, that letter incontestibly proved that the Motion had originated, not with the hon. Baronet the Member for Westminster, but with the Irish Government and their advisers. The sole object of the Motion was to drive the venerable Baron from the bench in order to make room for another. If the Government meant to say that the defect under which Baron Pennefather had partially—lately entirely, but not hopelessly—laboured was a reason for driving him from the bench, there was a constitutional mode of bringing the matter before Parliament. It was the bounden duty of Ministers to have moved an Address of both Houses to the Sovereign, praying Her to order the removal of Baron Pennefather. The object of the Act of Parliament was to guard against circumstances such as were now taking place. It meant that the Judges of the land were to be truly independent of all external influences, and they had a freehold in these offices for life, given to them for the good of the people, in order that they might be independent in the discharge of their duties. It had been conceded by the Government, and the facts stated by the right hon. and learned Member for Dublin University proved that the Return made, if the Motion should be carried, would be nil, and, in the case of Baron Pennefather, would redound greatly to his credit, and be a standing marvel how a man of eighty or eighty-one, or whatever his age might be, could be gifted with such vigorous intellect and physical constitution to have gone seventy circuits, save one, without interruption at any pe- 799 riod. As to the general mode in which that learned Judge discharged his duties it would not become him (Mr. George), nor was it necessary, to enter upon that point. The records of the Court of Exchequer would show that the learned Baron would be an irreparable loss to justice in Ireland. For nearly a quarter of a century he (Mr. George) had gone one of the most important circuits—one which formerly, although happily not now, presented a large proportion of Irish crime—the Leinster Circuit, and during the many years which Baron Pennefather had gone that circuit he had gained the admiration of the country gentlemen, the grand jurors, for the mode in which he administered justice. As a country gentleman, well acquainted with the peasantry and their habits and manners, no one was more capable of sifting evidence and detecting truth or falsehood. In another part of his jurisdiction, little known here, but an important one in Ireland, involving all the litigation of the humbler classes—appeals from the assistant-barristers, the learned Judge was distinguished for his industry and talent. He did not believe that any suitor, however humble, whether the judgment might have been in his favour or against him, ever went away dissatisfied from that learned Judge's Court. The only tangible part of the case brought forward was the allegation that the defective vision of Baron Pennefather might affect his capability of presiding in a Court of Justice. With respect to this objection he (Mr. George) was justified in making one observation. He had spoken from his own experience of the efficiency of the learned Baron on the Leinster circuit, and he took the opportunity of applying to a learned gentleman on the very circuit to which the hon. Gentleman opposite had alluded—the North-Western circuit—and of putting this question to him—Has Baron Pennefather failed in the exercise of his judicial functions on the North-Western circuit, and how has the business of the country been administered by him—in short, has there been any failure of justice in consequence of the Baron's defective vision?The reply was this:—To decline to respond to your appeal would be injurious to the public interest, and unjust to Baron Pennefather himself; but I confine myself to the specific inquiry, not presuming to volunteer any defence of the Irish bench, or generally to encumber them with my help. Whenever Baron Pennefather may be withdrawn from us a great legal luminary will be extinguished. We now see 800 him one of the highest judicial authorities, and a personification of the true old Irish gentleman, easily accessible, one of the best of dispositions, and animated by every feeling of honour which can find place in the human breast. Such a man taken from us by inevitable necessity will be a loss to be submitted to and deplored; but a proposition to drive him from us by the menaces of an English Member of Parliament, is an attempt to be deprecated and resisted.That was the opinion of Baron Pennefather, which Mr. Smiley, one of the ablest counsel and most honourable of men connected with the circuit—a man who was incapable of putting to paper sentiments which he did not feel as the result of his experience. It was borne out in every case as far as the evidence went, and it supplied the only point wanted to complete the long list of qualifications enumerated by his right hon. and learned Friend the Member for the University of Dublin (Mr. Napier), possessed by the learned Judge, and by means of which he had been enabled to give so much satisfaction in every department. With regard to the not taking notes of the evidence in trials on circuit; with reference to the examination of witnesses, Baron Pennefather had himself told him (Mr. George) that for more than twenty years, and long before his sight became affected, it was not his habit to take notes; and, more than that, whenever he was called on to make his report to the Judges in the superior Courts, those reports were invariably made from his recollection of the facts as they took place on the trial. He (Mr. George) never knew the learned baron, even in the longest case that was ever tried before him, to misstate a single circumstance or to omit a material fact in his summing up of the evidence. He had known him, indeed, to sift the rubbish with which the case was overladen; he had known him to dissipate all the smoke and darkness in which the case was involved, and bring all the circumstances into a short and narrow compass, so as to make it plain and lucid to the comprehension of the jury who tried it, and to the court above, when a report was required. He had further stated that it was never his habit to observe the demeanour of the witnesses; he always considered that the particular province of the jury, and that he was to collate in his mind the evidence material to the case; as to the manner in which the witnesses gave it, whether they appeared to be candid or not, was, in his opinion, matter of observation on the part of the jury. Under 801 these circumstances, he could not see, even if the consequences which were alleged to depend upon this matter were proved before the House, that they would warrant the extreme measure that was proposed—viz. that of telling a Judge so venerated and respected as Baron Pennefather that his long judicial career was to terminate, contrary to his own wishes. He had heard that venerable Judge state, that if he knew three men unanimous in the opinion that his services were no longer beneficial to the country, he would at once resign, and he (Mr. George) believed that he would do so. Why was not the same measure of justice to be meted out to Baron Pennefather as to other Judges under similar circumstances? Why were English Judges excused from going circuit by reason of age and infirmity? Then, with regard to Baron Richards, when it was thought that the interests of the public required that he should remain in the Encumbered Estates Court and not go circuit, was any objection made to other Judges going circuit in his place? Was it not open to Her Majesty's Government to accord the same permission to Irish Judges, and to have allowed Baron Pennefather to remain and attend to his business in banco, or at the Exchequer Chamber, where it was not pretended that his infirmity of vision interfered with his usefulness? He thought it most insulting and unjust, after the eminent services he had rendered, and after the testimony which had been accorded to his usefulness that night, not to allow him to spend the few years which God might yet spare him in the performance of those judicial duties which he performed so well, but rather to attempt by such a Motion as the present to drive him from the judgment seat.
§ MR. H. A. BRUCE
said, he had on a former occasion put some questions on the subject, because about May last, he was informed by some Irish friends, that the state of the judicial bench in Ireland was anything but satisfactory. From one cause or other, principally from old age, the Judges were absent from their duty, but the case was then somewhat stronger than it was now, not that the Judges were then older; but, in addition to these circumstances of age, with respect to some of the Judges, Chief Baron Pigot had then been absent from the country for six months. It was stated that the oldest of these Judges, Mr. Justice Torrens, who was eighty-five years of age, had been unable from infirmity to attend the previous spring 802 circuit. As to Baron Pennefather, he certainly thought blindness an incapacity for the full performance of duty, and in that opinion he had been supported by persons of eminent authority, though arguments had been adduced on the other side. Moreover, another learned Judge, Baron Richards, though in full enjoyment of his faculties, had been taken from his own court, and transferred to another. Chief Justice Lefroy, too, was eighty-four years of age, and, therefore, there was primâ facie ground for supposing that be was incapable of bearing the extreme fatigue to which, in some cases, Judges were exposed; for a Judge at eighty-four must be strong indeed if, after hearing a case for three consecutive days, as sometimes happened, he was able to go over the whole of the evidence with the same clearness as a younger person. It was not his wish to address himself to the general argument. He bad stated the reasons which had made him think on a former occasion that the Irish judicial bench was in an unsatisfactory condition, and though what he had heard to-night had not altogether removed that impression, he confessed it had, to a certain extent, weakened it. He did not quite see the parallel drawn by the right hon. Member for Buckinghamshire (Mr. Disraeli) who referred to the House of Lords, because they were perforce obliged to rise at five o'clock; whereas, on assizes, the Judges had sometimes to sit till twelve, and on the whole he considered that he was quite justified in putting the question which had been the proximate cause of this Motion.
SIR ROBERT FERGUSON
said, having been appealed to by his right hon. and learned Friend the Member for the University of Dublin (Mr. Napier), he wished to state that, as far as he had had an opportunity of judging, Mr. Baron Pennefather had always performed his judicial duties in a very satisfactory manner. Notwithstanding his loss of sight, so wonderful was his memory, and so clearly did he go through the evidence to the jury that that defect which might have been expected was not observable. He had seen him engaged on many trials which had lasted day after day, and such was his testimony as the result of his own observation. The Motion had been brought forward in such a manner that he could not possibly support it, and he would add that he thought the hon. and learned Attorney General could not have heard the opening 803 speech, in which there was such a strong imputation of cupidity.
§ MR. J. G. PHILLIMORE
said, he could not vote for the Motion, in the absence of any one fact to justify it. Had any fact been stated showing that there had been a failure of justice, he should have felt it his duty to waive all considerations of delicacy and vote for the Motion; but in the absence of any feeling of that kind, he thought his supporting the Motion would be unjust and ungenerous.
§ VISCOUNT PALMERSTON
I must say, Sir, that in regard to the speech of the right hon. and learned Gentleman the Member for the University of Dublin, there was a great deal of very good indignation thrown away without sufficient cause. The right hon. and learned Gentleman undertook to defend the character of Baron Pennefather, a character which stands beyond imputation, and upon which no imputation whatever, that I have heard, has been cast. It seemed to me that he rather wished to draw the House away from the real question to be considered, and convert it into a personal question, instead of its being one which I think the House is competent constitutionally to deal with. Now, the allegation made last Session was, that in consequence of infirmity many of the Irish Judges were unable to go on circuit, and the result was that a charge was thrown upon the public for the supply of their places in the performance of those duties. Now, Sir, I think that that is a question which this House is well entitled to inquire into. Surely it is entitled to inquire why additional charges are cast upon the public in consequence of the retention in official situations of men who, by infirmity or from other causes, were unable to perform the duties appertaining to their situation; and, therefore, I think that, without any infringement of the constitutional principle of non-interference with Judges, Parliament is entitled to inquire if there is any ground for considering that such charges are made upon the public by failure on the part of the Judges; therefore my hon. Friend the Member for Westminster, I consider, was perfectly justified in giving the notice which he did at the end of last Session, that he should in the beginning of the present make the present Motion. Both my right hon. Friend the Secretary of State for the Home Department and myself considered it to be our duty to inquire of the Lord Lieutenant whether such fail- 804 ures had occurred to an extent which would lead to the proper and just interference of Parliament, and undoubtedly I received from my noble Friend (Lord Carlisle) an answer to the same effect as that which my right hon. Friend received—namely, that there had not been that degree of absence which the hon. Gentleman who has just sat down supposed last year to have existed. That there had been some failures the Lord Lieutenant admitted, but not to the extent which we had supposed. I then suggested to my noble Friend that if such failures did habitually take place—not being aware at the time that by law the charge was thrown upon the Consolidated Fund—there might be some discretion vested in the Government as to paying substitutes. I suggested that if there were Judges in Ireland whose age and infirmity disqualified them from the performance of their duties, a charge might be thrown on the public for substitutes; but from the reply of the Lord Lieutenant I found that there was no option, and that by law it must be thrown upon the Consolidated Fund. From out of this discussion has arisen the question whether a Judge, who is afflicted by blindness, is or is not a proper person to continue in the performance of the functions appertaining to his office? I must say that the question being mooted, my opinion agrees with that of my hon. and learned Friend the Attorney General; and I would put this case—would any Government appoint in the first instance a person afflicted with loss of sight to fill the office of Judge? Nobody would dream of doing such a thing. Therefore, if that infirmity would disqualify a learned barrister from being appointed a Judge, I think the inference is not very difficult to be drawn that the same infirmity would incapacitate a Judge already filling the appointment from the proper performance of his duties. It was further said that the object of the Government in making these inquiries is, to drive some Irish Judge from the Bench, for the purpose of creating a vacancy. ["Hear, hear!"] I repudiate that imputation. No imputation whatever has been thrown upon Baron Pennefather; but I say that an imputation has been thrown upon Her Majesty's Government, which I repel with the greatest indignation. Such an imputation is utterly devoid of foundation. Sir, the only object that we had in making these inquiries was, to promote and uphold that respect and consideration which is due to the bench. 805 I repeat, that was the only object we had in view, and which induced us to support the Motion of my hon. Friend the Member for Westminster (Sir J. Shelley); and it is for him to consider, taking into account the state of the House, that the Motion was made upon the supposition of great failure of duty on the part of the learned Judges on the Irish bench, which supposition has not been entirely borne out, whether it is not expedient now to rest satisfied with what has been stated that such an impression was not well founded. The House must be satisfied that there has not been that failure of duty to the extent of charging the Irish bench with incapacity, by reason of infirmity and other causes, which was the foundation of the Motion; but, at the same time, if it goes to a division, I shall deem it my duty, on constitutional grounds, to support the Motion, because I think that this House has a right to inquire whether those who are charged with the duties devolving upon Judges do or do not perform their duties in a manner in which they ought to perform them. At the same time, although this House has no official or Parliamentary knowledge of that which has been stated in the course of the debate, yet, as it has been stated in the debate, upon authority which I think my hon. Friend the Member for Westminster will admit to be correct, that the supposition was not well founded, perhaps the better course on the whole, and one more consistent with due respect to the learned persons whom the right hon. Gentleman opposite (Mr. Disraeli) has so eloquently defended, and more consistent also as a matter of personal feeling, would be to withdraw the Motion.
§ SIR JOHN SHELLEY
, in reply, said, he thought he had a right to complain of having been misrepresented. The right hon. and learned Gentleman the Member for the University of Dublin had accused him of calumniating the character of Baron Pennefather. So far from that, he said everything that he could say to express his admiration of the learned Baron; adding, however, that however eminent and able he might be, there were judicial duties which, as a blind man, he could not perform. Having brought forward the Motion, he felt that he should not be doing his duty to that House, or to those venerable men whose names had been made the subject of debate, by then withdrawing it.
§ MR. FRENCH
said, the hon. Member for Westminster having just declared that 806 he had not uttered any calumny against Baron Pennefather, he begged to ask him what he meant by saying that the learned Judge retained his office from cupidity?
§ SIR JOHN SHELLEY
If I am allowed to make an answer to the observation of the hon. Gentleman, it will be this. I said that in the case of men retaining their offices after they were disqualified by their age and infirmities from performing their duties, it was calculated to create an impression that they were influenced by motives of cupidity.
§ Question put.
§ The House divided:—Ayes 134; Noes 120: Majority 14.
§ Main Question put.
§ The House divided.
§ One of the Tellers announced that Sir James Duke, Member for the City of London, refused to vote; whereupon Mr. Speaker desired that he should come to the Table. The hon. Member accordingly came to the Table, and stated, that he had not heard the Question put, having been in the left Division Lobby at the time. The Speaker then informed him that, not having been within the walls of the House, and not having heard the Question put, he need not vote, but might withdraw; and he withdrew accordingly.
Whereupon the Tellers announced the Numbers—Ayes 132; Noes 121: Majority 11.
Ordered—"That there be laid before this House, a Return of the date of the Call to the Bar of each of the Judges of the Superior Courts of Law in Ireland; the dates of their respective appointments as Judges; the number of times each has been absent during the whole of any Assize, or, if absent during a part only, stating what part, and the reasons, if any, given for such absence; also, in how many, and in what instances, substitutes have been appointed by the Crown to preside at any Assize, or portion thereof, in the absence of any such Judge, giving in each case the name of the town.
§ The House adjourned at half after Twelve o'clock.