§ MR. M'MAHONsaid, he wished to ask the Attorney General for Ireland whether he can give any explanation relative to the setting aside of Jurors on the late Trials for Ribbonism at Belfast, and state the names of the Jurors set aside, and the cause for which each Juror was set aside?
MR. WHITESIDEsaid, he had no objection to answer the question of the hon. and learned Gentleman, although he must do so under a protest, as he did not think the House of Commons was the place to inquire into the composition of a legal tribunal. When a similar question was brought before the House by the late John Sadleir, in 1850, Sir John Jervis, who was then Attorney General, protested against 1812 such a question being entertained unless there was a charge of corruption or of oppression against a public officer. He had, he said, assisted at the trial of many political offenders, and had often given instructions to strike the names of gentlemen off the list of jurors. The hon. and learned Gentleman opposite, upon a former occasion, read a letter which he had received from the attorney for the prisoners—not a very disinterested witness—and in which the following expressions occurred:—"I never witnessed a more flagrant attempt to pack a jury;" "really it was quite frightful." Such was the substance of the charge preferred by the hon. and learned Gentleman. In answer to it he would read to the House a plain statement which had been prepared by the Crown solicitor for the Northern Circuit; but, before doing so, he might state, that about twenty-five years ago, when Sir Michael O'Loughlin was Attorney General, instructions were issued that persons who were commonly called publicans, sellers of beer and spirits, should, in certain cases, not sit upon juries. He would preface the observations he had to make by asking the House to bear that in mind. He might also state that a person from America was arrested in Westmeath, with the signs and passes of the Riband Society in his possession; that he was tried and convicted by a jury on which there were four Roman Catholics; and that a Roman Catholic Judge, the Chief Justice of the Common Pleas, sentenced him to seven years' penal servitude. Upon the very same evidence fifteen persons were charged with a similar offence at Belfast, but with a different result. The Crown Solicitor for the Northern Circuit said:—
Sir M. Barrington gave me your message just now, and I report forthwith as to the jurors set aside by me, and for what cause, on the recent Riband trials at Belfast assizes. Upon the first trial I set aside eight jurors; upon the second trial nine, one of these nine having been on the first jury. I give the names of the jurors and a memorandum of objection. First trial:—Patrick Tower, D. R. Brannigan, Edward M'Hugh, and William Kane, dealers in spirits; William Ross, Thomas Byrne, and John Cramsie, violent party men; William M'Caldin, who was stated to me to be an atheist and party man. All the above I believe are Roman Catholics, except M'Caldin. Second trial:—Terence O'Brien, Patrick Tower, Edward M'Hugh, William Kane, Daniel Murphy, and John Coolan, dealers in spirits; Charles Hamill and P. M'Caldin, violent party men; Thomas Kennedy, of the first jury. All the above I believe are Roman Catholics, except 1813 M'Caldin and Kennedy. I beg to state that on neither trial did I set aside any juror on the ground that he was a Roman Catholic, but because of the objections set out in these lists. In all religious party cases it has long been the rule that all persons keeping public-houses or engaged in business in which political prejudices influenced should be set aside as being unfit to give 'a verdict according to the evidence;' and in setting such aside I follow out the instructions given me by successive law officers since I became Crown Solicitor, now nearly thirty years. On the recent trials of the first jury there was sworn one person only of the Roman Catholic religion (Mr. Neeson), and he, I am informed, was the only dissentient juror to a conviction. In like manner, on the second trial, the dissentient juror was Mr. Ross, a Roman Catholic. I need not state to you, who were present at the trials, that Henry Smyth and the other members of the Riband lodge captured by the police in the act of sitting in illegal meeting should have been convicted.The reason why the spirit dealers were set aside was because the meetings of these conspirators generally took place in public-houses. He therefore submitted to the House whether it was right to say that this was a case of oppression. He would now advert to a statement made by the right hon. Member for Kerry (Mr. H. Herbert) and the noble Lord his colleague in the representation (Viscount Castlerosse), in reference to a trial at Tralee. They expressed regret at the course taken by the law officers, and he should be very much grieved if anything occurred which could justly excite their displeasure he would, however state what occurred. A revolutionary society was formed, called the Phœnix Society, the Members of which were bound together by a revolutionary oath to dethrone the Queen, and be ready to act when the French landed in Bantry Bay. The Crown, however, instead of prosecuting the Members for high treason, in mercy to the young men of the country, indicted them under the Treasons Felony Act. The Bills were found by the grand jury, of which the right hon. Gentleman was foreman, and on which there were six Roman Catholic gentlemen. The petit jury consisted of eight Protestants and four Roman Catholics, and when it was empannelled he (Mr. Whiteside) received a friendly tap on the shoulder from a person behind him, who told him that he would not get a verdict. He examined fifty witnesses for the Crown, and exhibited a host of treasonable documents which left no doubt of the guilt of the prisoner, who, up to the day of his arrest, had been receiving a portion of the grant 1814 annually voted by the House for national education in Ireland, which he was carrying out by teaching his pupils high treason. The jury, however, disagreed. As strong censure had been cast on Sir M. Barrington, the Crown Solicitor in the Kerry case, he might state, that some years ago that gentleman was a candidate for a public employment, and he would read what had been said of him in a letter written on that occasion by the late Mr. Daniel O'Connell:—He is the only placeman I ever knew who did his duty to his employers without acrimony, party spirit, or virulence. He is a most excellent pub-lie officer. I never knew a better.Mr. O'Connell, in a public speech again in 1845, alluding to the office of Crown Solicitor for the Home Circuit, which was then vacant, repeated the declaration he made in 1832, giving the following reasons for his conviction:—For twenty-five or twenty-six years I defended every prisoner on the Munster Circuit; the prosecutions were conducted by Mr. Mathew Barrington, and I never knew a man who conducted prosecutions more fairly in the exercise and full performance of his duty to the Crown, but also without the least attempt to take any undue or improper advantage of the prisoner on his trial. He displayed great intelligence and great impartiality in the perfect performance of his duty, with the greatest anxiety that the subject should not be oppressed, or a conviction improperly had. Of course, Mr. Barrington cannot be a candidate for the office of Crown Solicitor, now vacant, for he has another province, and therefore I cannot be guilty of any impropriety in mentioning his name, but I point him out as a model, as the sort of person that should be appointed to prosecute on the part of the Crown.He (Mr. Whiteside) had a sincere respect for Sir M. Barrington, and he could state that he deeply felt what had been said of his conduct. He would now read his report on the transaction at Tralee:—On the first trial the prisoner challenged sixteen persons, all Protestants, and the Crown set by four, two of whom were Protestants, and two Roman Catholics. The jury was composed of eight Protestants and four Roman Catholics. The jury disagreed after being locked up an entire night, and it was understood that two of them, both Roman Catholics, would not agree to a verdict. It was stated by one of the jury, in a letter published in the newspapers, that two of the jury would not listen to reason or argument. Great censure was given to the public officers for leaving these men on the jury, and yet if they had been put by, it would have been said it was done because they were Roman Catholics. Upon the second trial the Crown consented not to call the former jury, by which the prisoner had the advantage of not having to challenge the ten jurors who agreed to a verdict of guilty, and he then 1815 challenged twenty persons, all Protestants; and sixteen persons, of whom six were Protestants, and ten Roman Catholics, were put by, by the Crown, not finally, but until the panel was gone through, when the juror should be sworn, unless a cause of challenge could be shown. Of the guilt of the prisoner no one could entertain a doubt, and Baron Greene, in passing sentence, said, 'It is impossible for any one who has heard the evidence adduced upon this trial to doubt the propriety of the verdict which has been given. I abstained cautiously in my observations to the jury from intimating what my own opinion was with respect to the truth of the charge against you. I merely read the evidence to them, and laid down the law; but I am bound to express my concurrence in that verdict, and I cannot think that in that opinion any fair, honest, and reasonable man can avoid concurring.' No person was set aside on account of his being a Roman Catholic; the most diligent inquiry was made, and information confidentially given both by Roman Catholic and Protestant gentlemen respecting the names on the panel; one of the gentlemen put by was for a cause, the disclosure of which does not lead to a breach of confidence—namely, that he was tried in the county of Kerry in 1832 for a conspiracy against the payment of tithes, was convicted, and sentenced to fine and imprisonment. Had this gentleman been left on the jury, and had another disagreement taken place, it would naturally have been said that no other result could have been expected when a gentleman who had himself been convicted, fined, and imprisoned in the same county was left on the jury. It was but fair to him to leave him off on such a trial. There were a number of Roman Catholic gentlemen on the panel that it would have been desirable to have on the jury, but some did not answer when called, and others were low on the panel.It was true that the gentleman in question was struck off the list, and properly Struck off, and had he been present on the occasion he should have desired him to stand by. Politics and religion were never inquired into by the Lord Chancellor, if he had the recommendation of the Lord Lieutenant of the county in favour of a particular magistrate; but, if the Lord Chancellor had been apprised of the event in question he would probably have directed further inquiry to be made, and would have asked if he could not be furnished with the name of some gentleman equally respectable who had not had the misfortune to be concerned in a similar transaction. He thought that the Crown Solicitor acted fairly in setting this gentleman aside. He would remind the right hon. Gentleman that the only one other instance in which the Treasons Felony Act had been applied, was in the case of Mr. Mitchel, which occurred when the Earl of Clarendon was Lord Lieutenant. That was the first time the Act had been enforced, and he turned to see the instructions given 1816 by the Attorney General of that day, the present Chief Justice Monhanan, himself a Roman Catholic. The Crown Solicitor, before the trial of Mr. Mitchel and his confederates, asked what he was to do with regard to setting aside jurors. M. Monahan did not fail in his fidelity to the Crown; but he took care that a conspiracy against the Throne should not be maintained by a conspiracy against the law. Mr. Monahan replied that it was never his wish that jurors should be set aside for their religious opinions; "But," he said—With respect to the propriety of setting aside jurors on account of their political opinions, I do not think that the instructions given on the subject by previous law officers were ever intended to apply to a case like the present, in which a party is to be tried for a political offence, and is openly supported and countenanced by certain political associations.And he concluded as follows:—All that I wish for is a fair, impartial, and unbiassed jury; and, in my opinion, to allow any not coming within this description to be sworn would be to defeat the administration of the law, and be totally inconsistent with the true principle of trial by jury, which is that the juror should stand indifferent between the Crown and the prisoner.He was present at that trial, and he would now show how the instructions of a Roman Catholic Attorney General were carried out:—On the trial of Mitchel, in Dublin, in 1848, the names of the jury and those put by the Crown appear in the Freeman's Journal of the 26th of May, 1848, which states that 71 jurors appeared; of these 55 were Protestants and 16 Roman Catholics; that the Crown set by 39, of which 16 were Roman Catholics, and that every Roman Catholic that appeared was set by, and the jury was composed exclusively of Protestants. These men were not set aside because they were Roman Catholics, but because the case was one of political confederacy. Sir M. Harrington set aside no man on account of his religious opinions, and he was much more sparing in using the prerogative of the Crown than had been the case on former occasions. In the case of the trial of two Roman Catholic clergymen, during the period when the right hon. Gentleman (Mr. H. Herbert) was Chief Secretary, a whole county (Mayo) was set aside, for they were brought to the county of Dublin and tried by a jury of that county, and one of the grounds of an appeal not further to prosecute the case against them was, that the expenses incurred by them in their trial at 1817 Dublin exceeded the fine that would have been imposed if they had been tried and found guilty at Mayo. Returning to the question before the House, he would ask the right hon. Gentleman whether, in his opinion, the prisoner had not been fairly tried? If he had, justice had been done, and it was not a wise thing to render the administration of the law more difficult in Ireland by a gentleman in the station and position of the right hon. Gentleman expressing disapprobation of the course taken by an officer of the Crown in assisting the administration of justice and vindicating the law.
§ MR. H. A. HERBERTsaid, that in answer to the appeal of the right hon. and learned Gentleman, he had no hesitation in repeating what he had already stated, that he had no doubt of the prisoner's guilt. Having read the charge of the Judge, whose reputation stood very high in Ireland, he could not for one single moment doubt the justice of the verdict. And more, he did not say that because a jury was a Protestant jury it necessarily followed that they would give an unfair verdict. On the contrary, he believed they would give a just and righteous verdict. Still he regretted the course which was pursued by the law officers of the Crown. He wished to make no attack on Sir Matthew Barrington; but the right hon. and learned Gentleman on the other side (Mr. Whiteside) had given no reason why the eight other gentlemen, other than Mr. O'Connor, were ordered to stand by at the trial. The right hon. and learned Gentleman had stated that it had been the practice to tell jurymen who might be supposed to have a bias in favour of a prisoner to stand by, but he did not deny or explain the fact that on that occasion every Roman Catholic was told to stand by; and that therefore the jury was composed of gentlemen exclusively Protestant. If ever there was an occasion on which not only was it just, but it would have been politic and prudent, to avoid even the appearance of introducing anything like proceedings of a sectarian character in a trial, it was that of which they were now speaking. What was the case? The right hon. and learned Gentleman had told them that there was a political conspiracy in Ireland. No doubt such was proved to have been the case. There was such a conspiracy, of the object and proceedings of which he hoped it was not necessary for him to say that he entertained the utmost abhorrence. But what were the circumstances? The con- 1818 spiracy came in from another country—he believed it came first from America; but it was repudiated by the people of Ireland, by the peasantry of Ireland. Almost the first information given to the Government with reference to this foolish conspiracy was from a Roman Catholic clergyman. As soon as it was known that it had crept into the country the conspiracy and the conspirators were denounced by the Roman Catholic clergy in every part of the country where it was supposed that the emissaries of the conspiracy had made their appearance. In fact, the conspiracy, before any measures had been taken by the Government, had been "nipped in the bud." This he asserted on his own personal knowledge. But if he wanted corroboration he would call as a witness the right hon. and learned Gentleman opposite, the Attorney General for Ireland, and ask him to repeat the compliment which he paid to the Roman Catholic clergy at Tralee. And what was the return? That the Roman Catholics were denounced as unfit to sit on a jury. [Mr. WHITESIDE said he must deny the accusation]. The right hon. and learned Gentleman was probably too prudent to say so in the interesting position of the present Parliament, but this principle was acted upon as a matter of fact, and the law officers of the Crown, by their proceedings, avowed their belief that Roman Catholics were not proper persons to serve as jurors on a trial of that kind. He (Mr. H. A. Herbert) maintained that the general holding off of the people from this conspiracy, the prompt action of the Roman Catholic clergy, the fact that Roman Catholic gentlemen on the grand jury concurred in finding a bill—all went to show that there were the strongest reasons against the course which had been adopted. Some stress had been laid on the prisoner having set aside some Protestants; but that was a very different matter, for it was the duty of the counsel for the prisoner, by every possible means which the law allowed, to procure a verdict for the prisoner; but he ventured to submit that there was no such duty on those who represented the Crown. The right hon. and learned Gentleman had alluded to one, and to one only, of the gentlemen who were excluded among the nine. That gentleman was a magistrate, and had been placed in the commission on his (Mr. Herbert's) recommendation. The right hon. and learned Gentleman had brought up against the gentleman referred to the fact that twenty-seven years ago he had been convict- 1819 ed of a political offence. He need not allude to the state of Ireland in 1832, more than to say that there was then a general rising of the Roman Catholics against the payment of tithes. Extreme excitement existed all over the country, and this gentleman, then a very young man, was charged with joining in the conspiracy against the payment of tithes. He had made a speech in an obscure village, and he was convicted and sentenced to a fortnight's imprisonment from the commencement of the session, of which time one week had then elapsed. This gentleman felt extremely indignant at the treatment which he had received from the present Government, and he sent him (Mr. H Herbert), as Lord Lieutenant of the county, a letter tendering his resignation of the office of magistrate, and requesting that it should be forwarded to the Lord Chancellor. He (Mr. H. Herbert) believed that the Gentleman was exceedingly well qualified for the magistracy, though the right hon. and learned Gentleman did not think he was qualified for the subordinate one of juror.
MR. WHITESIDEexplained that he had not said that the gentleman was not fit to be a juror; but what he did say was, that a person who had been convicted of conspiracy himself was not a fit person to try another for conspiracy.
§ MR. H. A. HERBERTsaid he thought that that statement coincided with what he had said. He thought that his statement was fully borne out; for the hon. and learned Gentleman said in effect that because this gentleman had been convicted of this offence he was for ever afterwards to be incapable of discharging the duty of a citizen. He was proceeding, when interrupted, to say that he had recommended this gentleman to be a magistrate because he considered, from the high character which he bore in the county, that he was fit to be on the bench; and he still held that opinion. When he received the letter to which he had referred, he wrote back to the gentleman and stated that he thought it would be a great loss to the public of Tralee if he persisted in his determination; and added, that because the Government had acted improperly, he did not think that that was any reason why the public should be deprived of his services. If the Government now thought otherwise they had the remedy in their own hands, for the Lord Chancellor could take away the commission which the gentleman no longer wished to hold. He (Mr. H. Herbert) repudiated any wish to excite sympathy for 1820 the prisoner, who, he believed, had been justly found guilty, but in a population comprising an enormous majority of Roman Catholics, that majority conducting themselves with the utmost propriety, and evincing (some very young men and persons of bad character expected), no sympathy with the prisoner, it was most inexpedient to exercise the privilege possessed by the Crown in the manner in which it had been exercised on this occasion. If ever there was a time at which it would have been politic to have had one or two respectable Roman Catholics on the jury it was this. To show the opinion entertained in the county on the subject, he would read an extract from the letter of a Protestant magistrate, who said it was "a most unnecessary and improper act to strike off men who could certainly be trusted." Another gentleman, who was as strong a Protestant as the hon. Gentleman opposite (Mr. Spooner), and a high Tory, said, "the Crown made an egregious blunder in challenging Mr. O'Connor, and in not having some respectable Roman Catholics on the jury." It would have been not only just but prudent to have avoided all appearance of sectarianism, and he was quite sure that no one would have been more ready to find a prisoner guilty, if he were really proved such, than the person to whom the right hon. and learned Member had objected.