HC Deb 28 February 1856 vol 140 cc1544-63

MR. J. G. PHILLIMORE rose to move for certain papers connected with the case of Talbot v. Talbot, tried before the High Court of Delegates in Dublin in May, 1855. He had declined to vote with the hon. Member for Westminster (Sir J. Shelley) in reference to the Irish Judges, and it was not from an inclination to cavil at and criticise the conduct of those who, as holding high judicial situations, were entitled to our respect, that he had undertaken to bring this matter before the House; and he ought also to state that he was an entire and absolute stranger to the persons interested. But when he read the account of these proceedings, as stated in a petition that had been presented to the House, it chilled his blood and made him sick at heart—he said deliberately and advisedly, that when an innocent woman appeared to have been made the victim of a foul and scandalous conspiracy, he felt indignant. He wrote to inquire whether the facts could be substantiated, and, on being assured that they could be, he had determined to bring the case before the House. He did not propose that the House should act as a court of review or appeal from the decision which had been pronounced, nor did he propose to act as the advocate of Mrs. Talbot and her friends; but the dignity, reverence, and esteem due to the Judges were lost if cases of this kind were passed over without notice. The charges in this case were not made anonymously. One of the gentlemen who brought them forward was a barrister of much respectability and considerable standing, and another was a magistrate acting for a county; and he said that if those gentlemen had falsely brought these charges they were no longer fit to hold such positions; but if the charges were well founded, and if through judicial incapacity so terrible a failure of justice had taken place, then it was the duty of the House to interfere for the protection of the subject. There were occasions when the House of Commons had exerted its power, and it was contemplated by the Act of Settlement, when the Judges were made irretrievable, that the House should be able to rescue the subject from the consequences of incapacity or corruption on the part of the Judges. He distinctly exonerated the Judge in the present case from any charge of corruption. The charge he brought against the Judge was that of incapacity—incapacity that had been followed by the most terrible and tragical consequences. He would admit that unless some grave and serious case could be established, it would be worse than trifling to call upon the House to interpose; but when the case was clear and positive, and based not on anonymous assertions, but on the statements of men who signed their names and pledged their credit to the truth of their allegations, the matter assumed a character of peculiar importance, and the House could not, without deserting its duty, refrain from interference through motives of false delicacy. One charge that was brought against the Judge was, that he had admitted hearsay evidence. Another charge—which he (Mr. Phillimore) had verified by reference to the evidence—was, that he had stated in the most material part of the case, and relied on the statement in his judgment, that the witness had said what in no part of his evidence he had said. A fourth charge was, that the Judge had quoted a witness as stating what that same witness had expressly denied; and the last charge of all was, that in the most material part of the case—that which involved the innocence of the person against whom judgment had been given—the Judge in the first place stated a fact wholly inconsistent with her guilt; and when his judgment was sent to him for correction he interpolated a fact compatible with her guilt, but such as to be wholly inconsistent with the context and the rest of the case. If he proved these facts, he thought he should be doing nothing rash, nothing unbecoming his position as a Member of Parliament, if he asked the House to prevent such a person from being any longer arbiter of the lives and fortunes of Her Majesty's subjects. The facts of the case were briefly as follows:—Mr. and Mrs. Talbot, the parties to this suit, were married in the year 1846. In 1847 they resided in the county of Cork, whence they removed in 1851 to the county of Roscommon, Mr. Talbot having succeeded to a large patrimonial estate which was entailed upon his heirs male. To this fact it was essential to direct attention, for Mrs. Talbot had never borne him a son—a circumstance which appeared to cause him great concern. Mr. Talbot had sworn that, up to the 19th of May, 1852, he believed his wife to be pure and spotless, and that, as far as he was aware, no breath of calumny had till then sullied the lustre of her reputation. But upon that day her fair fame was assailed, and a charge of dishonour was brought against, her by a man whom the Judge himself had described as "a loathsome and detestable wretch," "a scandal to his species. not worthy of being believed. in a court of justice." The charge was in substance this:—That, on the 19th of May, 1852, they went to a door; they found it bolted, they broke it open, and there they found this unhappy woman in company with the groom, who, they allege, is her paramour. But one circumstance was forgotten. There was in the room a child of seven years of age, the passionately-loved daughter of the unhappy lady against whom this terrible charge was made. The Judge dwelt with peculiar emphasis on the statement that the door was bolted—a circumstance which he said, "admitted of but one inference;" but he said not a single word about the child being in the room. And yet, was not that a fact of the most vital importance? He would put it—he would not say to any assembly of English gentlemen, but to any assembly of human beings, whether it was to be imagined that the most abandoned woman that ever infested the streets, would have brought a little child, and that child her own daughter, to witness such a scene? Such, however, was the charge. But there were things more startling still. Mr. Talbot on hearing of these transactions tore the girl away from her mother, measured out a small quantity of tea and sugar, and then quitted the house, leaving his wife in care of two men. I am not stating anything that does not appear upon the depositions. In the course of the night one of these men—the same man who had been the first to inform against this unfortunate lady—attempted to violate her person. Mr. Talbot was apprised of the fact; and what did he do? He retained the man in his service and raised his wages. The Judge mentioned in his judgment the attempt at violation, and admitted that the man was not to be relied on; yet he said not one word about the conduct of the husband who could keep such a ruffian in his service; on the contrary, he declared that there was no reason to believe that Mr. Talbot had treated his wife otherwise than with kindness and consideration. Another circumstance deserving of notice was, that the lady was taken to Dublin in a state of agony; her reason gave way; when she arrived in town she was a lunatic, attempted to throw herself out of the window, mistook a grown-up woman for her daughter, tried to poison herself, and complained that her head was "a ball of fire." It was while in this condition that the depositions on which her husband relied were taken from her. It should be observed that it was the Rev. William M'Clelland who brought the lady up to Dublin. After a short time, and while she was still in this perilous condition, Mr. Adair, Mr. Talbot's own solicitor, took her proxy to justify him in employing a proctor to defend her against her husband's charge. And what, it would be asked, had now become of her? Mr. Adair had placed her under the care of a person who brought her to England, who passed under a feigned name; whom the husband never attempted to produce, and nobody could now discover where she was. Mr. Talbot produced the evidence of two witnesses—one, the man who had attempted to commit the rape; the other, that of his own female servant, who had returned to his house, and earnestly protested her belief in her mistress's innocence, adding that they had tried to tamper with her (the servant) in the hope of inducing her to give false testimony. Notwithstanding this declaration, the witness returned to Mr. Talbot's house, and was now in his service. These proceedings took place on the 13th of July, 1852. On the 29th of January, 1853, additional allegations were put in, but they related to a different period altogether—not to the time when Mr. and Mrs. Talbot resided in Roscommon, but to the earlier period of their residence at Cork. The witnesses were Susan Venn, and a man named O'Brien. The latter when first applied to, admitted that he knew nothing against Mrs. Talbot, and he should give evidence in her favour. He was then told that they did not want evidence in her favour, they wanted the truth. He, now, notwithstanding his previous statement, swears that he had known her to be guilty of dishonourable conduct in the public street and in the open day. The evidence was so monstrous that the Judge himself repudiated it. The other witness, Susan Venn, said she knew nothing against Mrs. Talbot, and afterwards swore she saw Mrs. Talbot go into a bedroom with the groom. The Judge observed that Susan Venn did not prove any fact of infidelity. The going into a bedroom with the groom and staying all night, if it proved anything, proved a direct act of the grossest infidelity. Another witness, Maria Mooney, swore also to a direct act of adultery, and gave time and place; but she was contradicted in direct terms by Margaret Hall, and the Judge said he looked upon Margaret Hall as a trustworthy and credible witness. To show the mode in which Mr. Adair got up the evidence, he would quote from Margaret Hall's account of her interview with him. She said, Mr. Adair called upon her and endeavoured to persuade her of her mistress's guilt. She said, "Indeed, Sir; it is very strange; I never saw anything at all like it in her." Mr. Adair then said, "Oh, yes; she is certainly guilty. You must recollect having seen her, when walking with her child, give a kiss to the child, and send the child to give a kiss to the groom, and then the child came back again and gave a kiss to your mistress. It was in that way they carried on their love passages." She declared that, if it were so, it was entirely without her knowledge, and she was in constant attendance, and must have seen it. Not a single syllable of that appeared in the depositions. The Judge remarked upon Mrs. Talbot having conjured a clergyman to pray for her and her child. It seemed rather a violent inference that, because she, when in a situation of great agony, besought a clergyman to pray for her and her child, therefore she had been carrying on an adulterous intercourse with the groom. But what would the House think when he assured them that there was not one syllable to that effect in the depositions? Was the honour of any woman to be treated in that way? No one, however high their station, would be safe, if evidence which was wholly untrue was to be quoted by the Judge as indisputable. The Judge said, previous to her departure from Dublin Mr. M'Clelland saw her and received from her an acknowledgment of her transgression. The House would be surprised to hear that the Judge quoted literally the allegation of the accuser, instead of the proof of the witness. The allegation was:—"The said clergyman went to Mr. Talbot's house and had a conversation with Mrs. Talbot, who then admitted and confessed to the said clergyman that she had been guilty of adultery with the said groom." The evidence was, "I went to Mr. Talbot's house. I had a conversation with Mrs. Talbot. I upbraided her (which he had no business to do). She appeared much confused, but on that occasion neither admitted nor denied the guilty intercourse with the said groom." And the commentary of the Judge, in the face of such evidence, was that Mrs. Talbot had acknowledged her transgression. There was another circumstance of a still more extraordinary nature. Even as regarded what Mrs. Talbot did say to Mr. M'Clelland, it should be remembered that on her arrival in Dublin Mrs. Talbot was proved to be mad. The Judge rejected in the strongest terms the evidence of Halloran and O'Brien. He said of Halloran, "By whatever motives Halloran may have been induced to give such testimony, no court can consider him a truth-telling and trustworthy witness." He said, "The character of Halloran renders him incredible to any court of justice, as well by his admission of the attempt to violate Mrs. Talbot on the night of her discovery, as by his refusal to answer other charges made in cross-examination." Yet the Judge accepted that man's evidence second-hand, and upon hearsay. He said it was clear from the evidence that it was the intention of Mrs. Talbot to go to Dublin with the groom, and quoted a witness, who deposed to having heard from the servants that such an intention was in meditation—the informant of the witness being the very scoundrel that he had stigmatised as totally incredible in any court of justice. It was a remarkable circumstance, although the Judge forbore to comment upon it, that, notwithstanding there were three women servants in the house, and the housekeeper, they none of them saw it, as they most probably would have seen if there had been these repeated acts of adultery, and that in no room was Mrs. Talbot so likely to be detected as in the room where the detection was alleged to have taken place. That occurrence was on the 19th of May. The door was bolted. Admission was denied. The groom was concealed behind the curtains of the bed. The Judge reverted to those points, but never alluded to the fact that Mrs. Talbot's child, to whom she was passionately attached, and who was seven years of age, was also in the room. To account for it, the Judge interpolated the remark, that it could not be supposed the adultery was consummated in the presence of the child, but that if they had not been detected the child would have been withdrawn. Surely it was a curious way to get rid of a person by bolting her in the same room. No doubt the interpolation was an afterthought to conceal the manifest omission of which the Judge had been guilty in his charge. But besides this, the loathsome condition of the alleged paramour was, to his mind, conclusive proof of the innocence of Mrs. Talbot. He was not the advocate of Mrs. Talbot. If he were he might dwell on many points, and insist on many circumstances in support of her case. Mrs. Talbot could not now detect the machinations of her enemies, or reveal the secrets of her prison-house. She was unable to appreciate the noble, generous, and heroic exertions of those who had surmounted so many obstacles in her behalf. For her there was no conversation, no joyful sympathy of tried friends, no voice of children, no father's careful counsel; nothing but complete oblivion and endless darkness. She knew nothing now. What signified the vote of the House of Commons to a mother who had forgotten her own child? It was not for Mrs. Talbot, but for the sake of the community, that he had ventured to address them, and he asked whether he had not made out a case to justify this Motion? The balance and the sword of justice were still trembling in the feeble and unsteady hands which had proved too weak to hold them. Before another false weight should be placed in the balance, before the edge of the sword was again turned against innocence, before another sufferer was added to the sad list of victims of judicial incapacity, he called upon the House to interpose its voice, to exercise its sacred functions, to make straight the paths of justice, and to stand between the pestilence and the living who might yet be destroyed by it. The hon. Gentleman concluded by moving for the papers referred to.


seconded the Motion, considering it to be one which called for the consideration of the House.

Motion made, and Question proposed— That there be laid before this House, Copies of the Judgment pronounced by the Honourable Mr. Justice Torrens, one of the Judges of the Court of Common Pleas in Ireland, in the case of Talbot v. Talbot, before the High Court of Delegates in Dublin in the month of May 1855: And, of the written Proceedings and Depositions taken in the same cause before the Consistory Court of Dublin, from which the appeal was made to the said Court of Delegates, and which were laid before the said High Court of Delegates.


said, he had not the good fortune to be present at the debate which took place upon the Motion of the hon. Baronet the Member for Westminster (Sir J. Shelley), but he congratulated that hon. and learned Member and the House upon the results of that Motion. The hon. Baronet upon that occasion had assailed the oldest members of the judicial bench in Ireland, while on the present occasion the hon. and learned Member had attacked the youngest. The hon. and learned Gentleman had spoken with pathetic eloquence, which it was to be hoped he would have an opportunity of displaying upon the appeal now pending in this matter. What was the case? A lady was tried for adultery. How many ladies of position had been tried in this country for such an offence? Had such a charge never before been submitted to a court of competent jurisdiction? A lady was charged with the crime of adultery. Her husband would not believe the charge when brought under his notice. He was told that in a certain room, in an outhouse over the stable, the lady was in the habit of meeting his groom, and in all probability, judging from past occurrences, if he waited for a day or two he would be able to convince himself. The husband denied the possibility of such a thing, but two or three days after he was informed by his butler that the lady had entered the room of the groom, and that she was then closeted with him. Mr. Talbot, a gentleman of rank and fortune, almost, as the judgment stated, terror struck and in a state of horror, accompanied the butler to the room, demanded admittance, was refused, and the door was broken open, when Mrs. Talbot was found in the company of the groom, who was hidden behind the curtains of the bed. The husband immediately quitted the room and the house, taking with him his child, and never returned, but applied to his lawyers for advice. The hon. and learned Gentleman had compared Dr. Ratcliffe with Judge Jeffreys. He (Mr. Whiteside) had never seen Jeffreys, but he did know Dr. Ratcliffe, and a more judicious, temperate, and honourable Judge could not be found. The hon. and learned Member charged that learned Judge with having received a proxy obtained from Mrs. Talbot when out of her mind, and while concealed in England. Was the hon. Member aware who paid for the lady's maintenance in England? It was her father, who was anxious to conceal the crime of his child. The hon. and learned Member had stated that the proxy had been obtained from the lady while she was insane; but the learned Judge upon that point expressed his conviction, upon the faith of the attesting witnesses, that Mrs. Talbot at the time of executing the proxy was sane; but offered an opportunity to her friends, if they chose, of cross-examining the attesting witnesses. That offer, however was declined, and yet those calumnies were repeated—no less than half-a-dozen pamphlets having been published upon the subject, and copies of each regularly sent to the learned Judge. Mr. Paget, who happened to be wedded to a sister of the lady, then interposed, and the Court allowed the interference. The case was heard, but there was no evidence in reply. He (Mr. Whiteside) was amazed at the speech of the hon. and learned Gentleman. Did the hon. and learned Member mean to say that a learned Judge, many years on the bench, who was accustomed to decide such cases, had in this case found the lady guilty without any evidence to support the conclusion? [Mr. PHILLIMORK signified assent.] Then he should be compelled to read two short pieces of evidence, not impeached; but at the same time he was not so ignorant of the constitution of the country as to admit the jurisdiction of the House of Commons to grant a new trial in a case at law. He said distinctly that the precedent which this case would establish would be fatal to the independence of the bench, fatal to the impartial administration of justice. But what were a few simple plain facts? Some visitors were at Mr. Talbot's house upon a particular day—they were all invited to a neighbour's house—they all accepted the invitation; but towards evening Mrs. Talbot desired to be left at home, and directed her maid not to take any hot water to her room. [Mr. PHILLIMORE made a gesture of dissent.] Did the hon. and learned Gentleman mean that the House was to refuse evidence upon which a jury would decide? The evidence of Maria Mooney, a witness upon whose character no impeachment was offered, was, that she saw what determined her to give notice to leave, being anxious to preserve her character. The witness stated that she went upstairs, and on opening the bedroom door saw Mrs. Talbot and the groom in such a position as left no doubt of her guilt. This the Judge said was a positive fact, which was proved by the evidence of this witness's eyesight. The evidence given to rebut this was an assertion, not that she and Mullen were not together in the room that night, but that, as an excuse for her being there, she only went to tell the groom to get the donkey ready to take the child out for a ride next day. The Judge dwelt on this fact, and in the Consistorial Court it was held that the testimony of this witness, if unimpeached, must be decisive. The other maid admitted to having seen Mrs. Talbot and the groom within two or three yards of the spot where the other woman swore that, at a different time, she saw them. Two other witnesses also spoke conclusively on the same point. Bridget Queeny, the laundress, who was free from any imputation, declared that she on several occasions saw Mrs. Talbot go up the stairs leading to Mullen's room, that she knew that that lady was in the habit of remaining there alone with him for a considerable time, and that in some instances she took the child with her, but soon brought it away again and left it in the carpenter's shop, while she returned by herself to the groom's apartment. The carpenter, who was also unimpeached, confirmed this statement, deposing that he had observed Mrs. Talbot, when her husband was out with the steward, going in the direction of Mullen's room, and that afterwards, while in the laundry with the child, he saw through the window of the groom's apartment, which was open at the time, that lady and Mullens there together; that he noticed her child go up to the door of the room and call "Ma," but without being admitted. Were men of the world, accustomed to hear and sift evidence, to be told, then, that a lady of station who was constantly finding her way to the room of her man-servant, which was situated over the stable in the garden, was acting the part of an angel of purity? Judgment having been given in the case, Mr. Paget appealed on behalf of Mrs. Talbot; and what was the constitution of the court before which the appeal was tried? It was composed of five Judges—namely, Mr. Justice Moore, Dr. Andrews (a County Court Judge), Sir Henry Meredyth, Baron Greene, and lastly, Judge Torrens, the senior member of the bench, who was alone singled out for attack; and why? Because, in virtue of his seniority, he had to pronounce the conjoint decision of himself and his colleagues. What were the allegations which Mr. Paget was not ashamed to make in the petition which had been laid before that House? And let hon. and learned Members remember that there was a defeated and disappointed suitor in every case, and if, on the occasion of every petition presented to that House, complaining of a decision solemnly pronounced by the legitimate tribunal of the country, they were to sit in judgment on the conduct of the judicial bench, without hearing witnesses or arguments of counsel, they would perpetrate, without intending it, as rank an injustice as could be committed. Moreover, this case was still pending on appeal to the Upper House. Yet, in order to forestall and prejudice the decision of that high court, Mr. Paget had not hesitated to publish the half-dozen pamphlets containing a tissue of ex parte statements which should not be entertained for a moment. If the hon. and learned Gentleman was dissatisfied with the decision of the Court of Delegates, he should have applied to the Lord Chancellor, by whom the five Judges were selected, for a commission of review—the legitimate process whereby to correct a miscarriage of justice, if any such had occurred. The gravamen of the charge contained in the petition was, that, in delivering judgment, Judge Torrens stated that Mr. M'Clelland had deposed that Mrs. Talbot had admitted her guilt, whereas it was expressly denied that he had made any such statement. The garbled account given in the petition of Mr. M'Clelland's evidence showed that Mr. Paget was not proceeding in this matter with a fairness or candour that gave him the slightest claim on the attention of that House. The hon. and learned Gentleman then referred to the deposition of the Rev. William M'Clelland, in which he de-posed that, having heard on the 20th of May, 1852, that Mrs. Mary Talbot had been charged of having been guilty of criminal intercourse with one William Mullen, he went to Mr. Talbot's house and had a conversation with Mrs. Talbot, and questioned her on the subject. She appeared much confused, but on that occasion she neither admitted nor denied the fact. If the hon. and learned Gentleman supposed that that was no evidence in the criminal law, he was mistaken. He did not say it was important one way or the other; but if a party was charged with a certain crime and he did not say anything, he contended that that was evidence to be considered in forming a judgment upon the whole case. Well, the Rev. Mr. M'Clellaud proceeded to depose that, having heard from the servants that Mrs. Talbot was about to leave her home with William Mullen, he determined that she should not go with him, and he took measures accordingly to prevent it. He further deposed that on subsequent occasions he had conversations with Mrs. Talbot, and that in the course of those conversations she acknowledged to him that she had been guilty of criminal conversation with William Mullen, and she stated how it commenced, and that that intercourse had continued up to the time of the discovery, He (the Rev. Mr. M'Clelland) thereupon addressed a letter to her father, informing him of her conduct, and requesting him, to come and take away his daughter. The father came and wrote a note to his daughter, informing her where he was to be found. That note was conveyed to her by Mr. M'Clelland. It having been ascertained that she intended to go away with Mullen, Mr. M'Clelland never quitted her till she was given up to her family. She was then placed in charge of a person at Windsor, but without any coercion being exercised towards her. Mr. M'Clelland further deposed that, having been informed that Mullen was waiting about to obtain an interview with her, he proposed to reside with her for five or six days; and that in the conversation ho had with her during that time she never once asserted her innocence. She was in a state of greet mental suffering, and was constantly expressing her deep sense of shame and remorse for her crime. In conclusion, the rev. gentleman deposed that she was during the whole of that time in a state of perfectly sound mind and understanding. Now, what was it that the petitioner stated? That, whereas it appeared from a copy of the judgment given to him by his reporter, that the Judge had said that she made that confession before she left that house, in point of fact she did not make it till after she left it. Was ever such a case brought forward to impeach a Judge and to impeach the judgment of a court of law? The judgment of Mr. Justice Torrens was taken by a reporter on the other side, who was applied to for a copy, the Judge saying, "Let me see it when it is printed." But he never did see it; it was never printed; and the petitioner, having obtained an imperfect report of the judgment, came forward and made this most unfounded, libellous, and defamatory declaration, for which he ought to have been brought up to the Queen's Bench, and criminally punished. This lady had several times said, "I am guilty, and have brought sorrow and shame upon my father and mother." And when she was asked whether she had been provoked to commit the crime by the misconduct of her husband, she answered, "Never!" What was there to impeach the conduct of Mr. M' Clelland? The observation of the learned Judge was, that the conduct of Mr. M'Clelland was consistent with his belief. But, then, Mr. Paget, the petitioner, said that Mr. Justice Torrens relied upon hearsay evidence as one of the grounds of his judgment. How was this allegation supported? On statements so ludicrous that if it had not been brought forward by the hon. and learned Gentleman, he should hot have thought it deserving of even a casual reply. The hon. and learned Gentleman pointed out an error in the Christian name of one of the witnesses, who was called Robert instead of George. To that extent the statement of the hon. and learned Gentleman was accurate, and he gave the hon. and learned Gentleman joy for having established so great a point. Looking at the petition which Mr. Paget had, in a most unauthorised manner, presented to the House—for none of Mrs. Talbot's friends had authorised him to present it—he (Mr. White-side) wished to know, on the whole of the matter, what was the House going to do? He had the highest respect for the House of Commons, and considered it to be the greatest distinction of his life to be a Member of it, but if they should proceed in such a career as this, and summon Judges before them to answer for their conduct in a case, before the matter was finally decided, and when an appeal was pending on a statement which was made up of garbled extracts from evidence given in a court of justice, it would be a course that must ultimately reflect upon the wisdom and the justice of the House. Mr. Paget and the hon. and learned Gentleman himself seemed to be infuriated against everybody. With them one man was a Jeffreys, and another was even worse. And why? Because certain evidence had been listened to by the Judges of the land. No partiality, no corruption was alleged. He wondered whether the hon. and learned Gentleman ever passed through the vestibule, and cast his eye upon the statue of Lord Mansfield, one of the most eminent that ever pronounced judgment from the justice seat. And yet more luminous and profound judgments were never delivered than were given by that eminent man after he had passed his eightieth year. Had the hon. and learned Gentleman ever reflected on the vast powers of Lord Coke in his advanced age, or of Serjeant Maynard, who possessed a most vigorous intellect at the age of ninety? But the whole case was one most horrible in its details. Mr. Justice Torrens had declared that he never suffered more pain in his existence than when pronouncing his judgment in this case. If he could have found any just grounds for giving a contrary opinion, he would gladly have done so. But it was impossible. The Motion itself was most, unconstitutional and most mischievous, and he trusted that on this occasion he should have the support of Her Majesty's Ministers in maintaining a Court of Delegates appointed by the Lord Chancellor, and of resisting an attempt to injure and defame as upright and honourable a man as ever set on a bench of justice.


felt it his duty to advise the House to negative this Motion. When he heard the speech of the hon. and learned Member for Leominster he was for some time in doubt whether it was the conduct of the senior Judge of the Court of Delegates, that of Mr. Talbot, the promoter of the suit, or that of Mr. Adair, his attorney, which the House was now asked to try; and from the address of the hon. and learned Gentleman opposite (Mr. Whiteside), he was almost under the impression that the House was called upon as an appellate tribunal, to rehear the case of Talbot v. Talbot. He did not intend to express any opinion upon the merits of the case, and he would not say one word in support of the decision of the Court of Delegates, much less would he express any opinion upon the guilt or innocence of the unhappy lady whose conduct had been called in question. He asked the House to negative the Motion upon constitutional and Parliamentary grounds alone. When the hon. and learned Gentleman who brought the subject before the House admitted that he imputed no corruption to the Judge, it appeared to him (Mr. Fitzgerald) that he abandoned the only ground upon which the Motion could be sustained. It was the province of that House, if a Judge was accused of corruption, or if moral misconduct was imputed to him, to inquire into the charges, and, if necessary, to address the Crown upon the subject; but he denied that, because a Judge had made a mistake, or because there had been a failure of justice, that House was entitled to examine, as an appellate tribunal, into the conduct of a Judge against whom no corruption or misconduct was charged. The hon. and learned Member for Leominster, although he did not allege corruption, did bring forward the charge of incapacity—and against whom? Against the senior Judge who delivered the judgment of the Court of Delegates. But let the House remember that Mr. Justice Torrens did not deliver merely his own judgment, but that of four other Judges who were sitting by his side, and who were unanimous in their decision. He knew nothing of the case beyond what he had learnt from the ex parte pamphlet he held in his hand; but if the statements of the chivalrous defender of Mrs. Talbot wore strictly accurate, and no answer could be given to them, there could be no doubt that there had been a grave error in fact in this case. If, however, there had been error in fact or in law, although the decision of the Court of Delegates might to some extent be regarded as final, yet, upon petition to the Queen in Council, the case would, as a matter of course, be referred to the Lord Chancellor for his consideration. The hon. and learned Member for Enniskillen (Mr. Whiteside) had stated that a Divorce Bill in this case was now pending in the House of Lords, and that stood for a second reading on the 11th of March. The decision of the Court of Delegates was not binding upon the House of Lords; the evidence might be gone through anew before that tribunal; and he thought hon. Members must see the inconvenience of discussing this subject under such circumstances, when statements of what witnesses were alleged to have said on the one side or the other might be circulated through the public prints. He advised the House to negative this Motion because he regarded it as dangerous and unpredecented. If everyone who thought he had been aggrieved by the decision of a court of justice was at liberty to ask that House to hear and reconsider his case, and to arraign the conduct of Judges against whom no corruption was charged, the independence of the Judges, as established by the Act of Settlement, would be a mockery and a delusion. The hon. and learned Member for Enniskillen had endeavoured to connect this Motion with one which had been brought forward a few days ago by the hon. Member for Westminster. He (Mr. Fitzgerald) could not perceive the slightest connection between them. In this case the conduct of a particular Judge was impugned, of whom it was said that his great age showed him to be incapable, and unfit to retain his seat upon the bench.


said, that he had presented to the House the petition of Mr. Paget, who was a most honourable man and a highly-respected magistrate, find in whose statements he placed implicit confidence, but he had declined to second the Motion of the hon. and learned Member for Leominster, because he did not wish to commit himself to the support of a motion to which a satisfactory answer might be given. As he had heard since he came down to the House that Mr. Talbot had adopted proceedings before the House of Lords with the view of obtaining a divorce, he thought the case ought to be left to the decision of that tribunal, and he should therefore feel it his duty to vote against the Motion.


had never heard a Motion made in that House with greater pain, and he hoped this was the last time that they would be called on to hear and determine questions that ought alone to be consided in a court of law. Unquestionably, the Judges might be made amenable to that House for corruption or perversion of justice; but in this case no such allegations were made, and it would be monstrous if, without the means of enabling them to judge of the merits of a case, they were to assume the functions of a court of law, and overhaul the decisions of the legal tribunals. The only question raised was one as to incapacity; but no imputation of that kind could rest on the ground of a decision, which was shared in by several Judges possessed of the highest character; nor could the charge of incapacity be based on some single word or phrase in the judgment, as it was well known that hardly a judgment was delivered with respect to which counsel might not be able to show that some words had been used which ought not to have been introduced. In fact, the judgment of the Court below having been confirmed by the Court of Delegates on appeal, was proof conclusive that there had been no incapacity. He fully approved of the course taken by the hon. and learned Solicitor General for Ireland, and trusted the Motion of his hon. and learned Friend would not be pressed to a division. The last thing that House ought to do was to attempt to interfere with the administration of justice, because, by doing so, a suspicion would be raised that the administration of justice was interfered with for political purposes by political parties; and thus, instead of being rendered more pure, the dangers would be, lost the interests of justice should be damaged in the estimation of the country.


hoped his hon. and learned Friend would permit him to join in the request made by the right hon. Gentleman opposite, not to press this Motion to a division. Nobody could have listened to the speech of his hon. and learned Friend without doing ample justice to the feeling which had urged him to bring the case forward. He stated, with a degree of eloquence that did credit to his ability, and with a degree of feeling that did credit to his heart, the views he had taken of the case. He would not attempt to lay down on the present occasion the functions of the House of Commons, but it was at all times desirable that they should not press these functions to their extreme confines in cases on which doubt might arise whether they were not transgressing the limits assigned to them by the constitution. Now, an interference in the administration of justice was certainly not one of the purposes for which the House of Commons was constituted. He thought nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself the duties of a court of review of the proceedings of the ordinary courts of law, because it must be plain to the commonest understanding that they were totally incompetent to the discharge of such functions. Even supposing they were fitted for them in other respects, they had no means of obtaining evidence, and taking those measures and precautions by which alone the very ablest men could avoid error. Cases of abuse in the administration of the law might arise, it was true—cases of such gross perversion of the law, either by intention, corruption, or by incapacity, as to make it necessary for the House of Commons to exercise the power vested in it of addressing the Crown for the removal of j the Judge; but in the present case his hon. and learned Friend could not single out any individual Judge with regard to whom his observations principally applied as having acted in his sole and single capacity in pronouncing the judgment of which he complained. The judgment which his hon. and learned Friend impugned was a judgment pronounced first by the Court below—and there no allegation of incapacity or improper motive rested—and afterwards confirmed by the superior Court, to which the Judge whose conduct was called in question belonged; but not by that Judge singly, but in conjunction with four other Judges sitting with him. It was impossible, under such circumstances, to say that the judgment was that of one individual Judge, who might have been, by age, infirmity, or some other reason, incapacitated. It was the combined judgment of the whole Court, all the other members concurring with the Judge in question, and with respect to whom no imputation was made. There was also this peculiar circumstance connected with the case—that it was at this moment the subject of a judicial proceeding pending in the highest Court of Appeal in the country—the subject of a proceeding that would not even terminate in the highest Court; but the decision of which, supposing the Bill to be passed, must come down hereafter for the concurrence of the House of Commons. For all these reasons, he would suggest to his hon. and learned Friend that he would best exercise his constitutional functions as a Member of the House of Commons by abstaining from pressing his Motion to a division.


said, that after the appeal which the noble Lord had made to him, he did not feel himself justified in pressing his Motion to a division. Hon. and learned Members had done him (Mr. J. G. Phillimore) a great injustice. He was totally ignorant that any steps whatever had been taken. Suppose the case made out against Mr. Justice Torrens; let any lawyer, on either side of the House, read Mr. Justice Torrens' judgment, and say whether it was not a scandalous judgment. He put the case upon that simple issue. Hon. and learned Members had founded their judgments upon the evidence of witnesses taken before the Consistory Court; he (Mr. J. G. Phillimore) would simply take those before Mr. Justice Torrens. With respect to the only other topic which had been touched upon, referred to in the 17th page of the statement, he would ask who did hon. Members think was the person who had brought forward all these charges? Why, Mr. Adair, Mr. Talbot's solicitor. He (Mr. J. G. Phillimore) now said he believed this lady to be perfectly innocent of the charges that had been brought. The only brother of this unhappy lady declared in evidence that she had been concealed from the members of her family, that she had sunk into a state of childish imbecility, and that he believed her to be the victim of a vile conspiracy. But he said that any man who believed his sister's honour to be attacked, and did not defend her, was base and contemptible.


said, he was the person who had communicated indirectly to the hon. and learned Gentleman below him (Mr. Whiteside) that the father and mother of this unfortunate lady were averse to this proceeding. Moreover, he was enabled to state to the House that the hon. and learned Gentleman (Mr. J. G. Phillimore) had received a letter from the brother this afternoon, in which he deprecated the step which the hon. and learned Gentleman was about to take.


said, he had received a note from Baron Green, in which that learned person said that the judgment of Mr. Justice Torrens was considered by all his colleagues before it was delivered; that they had gone over it passage by passage, and found it impossible to come to an opposite conclusion. He (Mr. Napier) would add, that a judgment approved by Baron Green and by Mr. Justice Moore was one which no man bearing the name of a lawyer had a right to impugn.

Question put, and negatived.

The House adjourned at half after Twelve o'clock.