§ MR. HENNESSY
rose to call the attention of the House to one of the most extraordinary cases ever brought before Parliament, and he should conclude by moving that a certain petition of right might receive the fiat of the Queen, The case of Mr. O'Malley Irwin was one of gross and grievous injustice; and the statement which he (Mr. Hennessy) was about to make would, he believed, convince the House that this injustice had been suffered for the last thirty years through the culpable neglect of the Officers of the Crown. Mr. O'Malley Irwin, who in the year 1834 had been receiving seven guineas a day for performing judicial functions as deputy assistant barrister in Ireland, in the year 1835 was tried on a charge of forgery, was convicted, was imprisoned for nine months, and fined £50 —all this being attributable to the fact that a certain important letter had been kept back at his trial by the Officers of the Crown. In 1840 the late Mr. O'Connell gave a professional opinion on the case, and stated, after carefully investigating all the documents, that Mr. Irwin was entitled to have his petition of right fiated owing to the loss of a letter of the 12th of October, 1834. That letter was written by Mr. Robert Johnston, who was the Assistant Barrister, Mr. O'Malley Irwin being his deputy. The letter which Mr. Irwin was charged with forging was dated Mr. Speaker 2108 the 3rd of October, 1834, and was signed by Johnston, and addressed to the right hon. G. Littleton, then Chief Secretary for Ireland, and was to the effect that he (Johnston) wished, in consequence of ill health, to resign his position as Assistant Barrister for the County of Mayo, and expressed a hope that he would receive a retiring pension. He would read to the House what was the opinion of the present Lord Chancellor of England upon the case, which had been referred to him by the right hon. Member for Cambridge University (Mr. Walpole), then Home Secretary. Sir Richard Bethell wrote in 1858 that, assuming the documents produced to him to be genuine, and the account of the manner in which they have been obtained to be true, he felt bound to say there was primâ facie secondary evidence of the fact of Johnston having written the letter thanking the Government for having accepted his resignation, which Mr. Irwin is charged with having forged, and if that were so, he appeared to have suffered grievous injustice. Now, as to the lost link which the Lord Chancellor said was necessary to prove that Mr. Irwin had suffered grievous injustice. [Mr. ROEBUCK: He was not Lord Chancellor then.] It was true that he was then only Sir Richard Bethell. The hon. and learned Member for Sheffield seemed to think that made all the difference, but he could not adopt that view, as he believed that, whether as Sir Richard Bethell or as Lord Westbury, the sense of justice was equally keen in that eminent personage. The letter of the 12th of October, 1834, had, after thirty years' concealment, been laid before Parliament. He had in his hand a Return (hat was moved for by the hon. and learned Member for Suffolk (Sir FitzRoy Kelly), for a copy of that document and also of a letter of October 7, 1834, from the Chief Secretary for Ireland, acknowledging the receipt of the letter of the 3rd of October, from Mr. Johnston, and he would first read to the House this letter from the Chief Secretary to Mr. Johnston—Sir—Your letter of the 3rd inst was delivered to Mr. Craig by Mr. Irwin only yesterday evening. I am commanded by the Lord Lieutenant to express his regret that the state of your health is such as to render it necessary for you to resign the situation of assistant barrister for the county of Mayo. That part of your letter in which yon express your hope that the number of years you have discharged the duties of that office will be considered by his Excellency as constituting a claim to the retiring pension of an as- 2109 sistant barrister will be made the subject of consideration by parties to whom the Lord Lieutenant has directed me to refer it, but his Excellency is desirous that you would have the goodness to detail more especially, either in a letter or in a memorial, the grounds of your claim, stating especially the date of your appointment.Then came the missing letter, dated Clare, October 12, 1834, from Mr. Johnston to the Chief Secretary—Sir,—I have had the honour of your favour of the 7th inst., having been addressed to Castlebar, only reached me the 12th. Your letter of the 8th, addressed to Thomas Gildea, Esq., the Clerk of the Peace, from his illness, not being able as yet to attend here, had received from him on the evening of the 10th. I had, consequently, sat two days in Crown business before any communication on the subject of my retirement. Your letter of the 8th, which I received, expressed Mr. King's appointment only to be temporary. Mr. Morris King arrived here on Friday, the 10th inst., and notified his appointment to me, which having forwarded, I have signified my retirement to him, and requested he would take up the civil business to-morrow. Your letter of the 7th, in a great measure insuring my retiring pension, is of the greatest satisfaction to me. I beg leave to express my most grateful thanks to his Excellency for the kind expressions concerning me on my retiring. I shall forward by to-morrow's post, not having time this day, the date of my appointment and my claim to the pension.Now, if that letter was genuine, Mr. O'Malley Irwin had been, beyond all doubt, improperly convicted; and upon that point he was authorized by his hon. Friend the Member for Mallow (Mr. Longfield)—who regretted that he was not able to remain in the House—to state that he was present at the trial of Mr. O'Malley Irwin thirty years ago, and the impression left upon his mind was that that gentleman was innocent and had been improperly convicted, and that Johnston was the guilty man. Appended to the Return was the following note, which explained how it was that the letter of the 12th of October, 1834, had not been produced until now:—The foregoing copies of the letters of the 3rd and 12th of October, 1834, have been made from copies in the Chief Secretary's office, the originals not being in the office. The letter of the 12th of October was abstracted from the Crown Solicitor's papers during the trial of Mr. O'Malley Irwin, in 1835, for forgery of the letter of tin1 3rd of October, and has never been recovered.Let the House understand that Mr. O'Malley Irwin was on his trial, the Crown Solicitor with his bundle of papers before him sat at the table, and yet the letter was abstracted. Who abstracted it? Not the man in the dock whose innocence it would have proved. He might surmise that in the vicinity of the Crown Solicitor was Mr. 2110 Johnston, whose character was such that the hon. Member for Mallow declared the Bar of Ireland thought he was the guilty man. Fortunately, an official copy of the letter had been kept, which Colonel Larcom had at last succeeded in discovering. He (Mr. Hennessy) saw the hon. and learned Member for Wallingford in his place— who would, perhaps, be astonished to learn that, notwithstanding his conviction, Mr. O'Malley Irwin had never been disbarred. And how was that? Because it appeared to the Benchers of King's Inn that if that mysterious letter had been produced, Mr. Irwin would not have been convicted, and therefore they refused to disbar him. He had an old Dublin newspaper of 1841 in which was published a letter from Chief Justice Pennefather to Mr. O'Malley Irwin, in which he said that great injustice was done to Mr. O'Malley Irwin by the non production of the document in question, which, if produced, would have entitled him to an acquittal. That letter was published and commented on ten years before the death of the Chief Justice. He had also a letter from Mr. Baron Greene, which proved that the leading Benchers of King's Inn were aware of the fact that evidence had been kept back at the trial. What then did Mr. O'Malley Irwin do? He had been unremitting in his efforts to obtain justice. When Mr. Irwin came out of prison he brought an action against the late Lord Norman by, then Lord Lieutenant, for keeping back the letters in question; and as it was understood that the papers had been sent to Lord John Russell, then Home Secretary, the noble Lord was subpœnaed to attend and produce them at the trial against the Lord Lieutenant. It was important to know what happened in relation to that summons. The person who served the summons in his affidavit said he had great difficulty in serving it, and at last left the copy in his Lordship's bosom at the House of Commons. That was in June, 1839. Lord John Russell, however, was guilty of contempt, and did not obey the summons. An attachment for that contempt was issued by Judge Coleridge, in reply to which Lord John Russell made an affidavit. He might mention that Lord John Russell communicated with Sir J. Campbell, at that time Attorney General, respecting that affidavit; and there was a letter from the latter, in which he said, "You can't prepare your affidavit until we see what the lunatic says," meaning this unfortunate gentleman. No doubt Sir J. 2111 Campbell might have considered Mr. Irwin a lunatic, for he was constantly endeavouring to obtain the discovery of the letter which would have vindicated his innocence, a copy of which had at length been brought to light. Lord John Russell then made an affidavit. The writ recited three documents by date, and twice recited the letter of October 12, 1834, giving a precise description of the document. Lord John Russell in his affidavit swore that he attended in pursuance of the said writ at the court at Westminster; that he was detained on his way to the court by several persons who spoke to him about public business; that he did not reach the court until the case of the plaintiff was closed, and the Attorney General was addressing the Court on behalf of the defendant; that he was asked whether he had brought with him the documents required by the sub pœnâ duces tecum, to which he replied that he had not brought them, though he admitted that the said papers were in his custody as Secretary of State, So much for Lord John Russell as a witness. But Lord John Russell as a correspondent was equally interesting in this case. He (Mr. Hennessy) had seen some twenty letters written by Mr. O'Malley Irwin to Lord John Russell, begging and imploring his Lordship to search for the letter of October, 1834, and asking that such letter, or a copy of it, should be sent to him. These letters, which had recently been tumbled out of the Home Office, were all marked nil— Lord John Russell would never condescend to give any reply to them. Mr. Irwin, having failed in his action against Lord Normanby, had from that day to this brought actions against almost every Minister of the Crown. He had been most unremitting, because he was conscious of his own innocence, and felt that the day would come when this important document would be raked up. So he persisted in bringing actions and in calling the attention of Parliament to the case. In 1838, Mr. O'Connell asked for a Select Committee to recover the letter, and the hon. and gallant Member (Colonel French) presented a petition with a similar prayer. Among other documents which had turned up at the Home Office there was a note marked "R. B.," in which the present Lord Chancellor, remarking on Mr. Irwin's case, said in effect—" It depends on the proof of Johnston's letter. That letter cannot be found, but if it can be produced, Mr. Irwin has suffered grievous injustice." He (Mr. 2112 Hennessy) believed that no doubt would be expressed to-night as to the authenticity of this letter. He had felt some surprise the other night at the ambiguous reference made by the hon. and learned Gentleman to the document. [The ATTORNEY GENERAL: At that time I knew nothing about it.] He understood that information since then had reached the Government as to this letter, and that its authenticity would not be denied. His statement would thus be rendered much shorter than it must otherwise have been. The Motion he was about to submit was for an Address praying Her Majesty to grant her fiat to the petition of right of Mr. Irwin. This petition had been drawn up by an hon. and learned Member of this House, and it was approved by an hon. and learned Gentleman who had held the office of Attorney General in this country, and by one of the most eminent common law pleaders at the English Ban He understood that the Motion was to be opposed by the Government, but in doing so they would be taking a very serious step. The Home Secretary and the Attorney General were said to be of opinion that they had the power to refuse the fiat. But who were they who refused the fiat? They were the real defendants in this case. The right hon. Gentleman the Home Secretary, and above all the Attorney General, would be practically on their trial if the fiat were given, and this case were allowed to go before a jury. They were the defendants, and yet they constituted themselves judges, and assumed the power to refuse the petition of right. Now upon the constitutional question he would read a few lines from a speech delivered in this House by the hon. and learned Member (Sir FitzRoy Kelly) in July, 1863 —After the passing of the Act of Parliament, for which the country was indebted to his hon. and learned Friend the Member for Guildford (Mr. Bovill), Mr. O'Malley Irwin caused to be prepared for presentation to Her Majesty a Petition of Right; but the right hon. Gentleman the Secretary of State for the Home Department felt it to be his duty to advise the Crown to withhold its fiat to that Petition of Right, and Mr. O'Malley Irwin was again baffled in his endeavours to procure justice. Now he (Sir FitzRoy Kelly) was prepared to maintain, as a proposition founded upon the constitution and the law of this country, that it was not competent or consistent with the duty of any officer of the Crown to advise the Queen to withhold her fiat to any Petition of Right upon any ground, whether right or wrong, whether well or ill founded. Such an interference was only to be justified in a case where a petition appeared to be founded on fraud, or upon gross and manifest error." [3 Hansard, clxxii. 1174.]2113 Mr. Chitty, in his work on the Prerogative, said that a petition of right was the birthright of the subject, and it was maintainable at common law. Mr. Manning, a high authority, said in his Exchequer Practice, "As the prayer of the petition is grantable ex debito justitiœ, it is called a petition of right." These authorities fortified him in the opinion that the Government had no right to refuse the fiat of the Queen to this petition. Let the case come before a jury. For thirty years Mr. Irwin had been trying to obtain justice, but had been baffled for the want of a certain document, of which at last he had got an authentic copy, and that copy, with the note appended that it was abstracted from the Grown official papers, afforded, in the opinion of the hon. and learned Member, a sufficient ground for the petition of right. It would probably be urged in answer to his Motion, that the Act of Parliament said that the Queen must be "graciously pleased" to issue the fiat, but those very words were used in connection with writs issued by other Courts. Lord Cottenham had said in 1846, in reference to a case on this point, which had not the same claims as the one now before the House, but which was evidently frivolous and vexatious, "What a bar it would be to justice, if parties having a claim against the Crown could not proceed without the permission of the Law Officers of the Crown!" And Lord Brougham had expressed a similar opinion. In dealing with this matter he hoped the hon. and learned Gentleman would remember the position he occupied. If the Government, after the merits of the case had been fully set forth, adopted the unprecedented course of refusing a fiat, he did not know what other course would remain to Members of the House who, like himself, were firmly convinced of the innocence of Mr. Irwin and the guilt of the Crown Officers, than to bring forward a more serious Motion. Of one thing, however, the Government might be sure—that they could not succeed in keeping from the public a case which, according to the Lord Chancellor, exhibited such grievous injustice, by withholding it from a jury. The hon. and learned Member concluded by movingThat a humble Address be presented to Her Majesty, praying that She will be graciously pleased to grant Her Fiat to the Petition of Right of George O'Malley Irwin, esquire, or to satisfy his claims without suit.
§ MR. O'HAGAN
(THE ATTORNEY GENERAL FOR IRELAND) said, that his hon. and 2114 learned Friend the Member for the Queen's County had very properly addressed his observations to his right hon. Friend the Attorney General, whose special duty it was to deal with this Question; but he conceived that it would be a convenient course, and perhaps more fair to the House, if he stated some facts which he had ascertained within the last two hours in reference to this case. His attention had only lately been drawn to the case, and he at once felt it to be his duty to take means to ascertain as far as he could the real facts by reference to Ireland. He had received, in consequence, a multitude of genuine and contemporaneous documents, which he had endeavoured to master as well as he could during the last two hours, and he believed that he would be able to give an explanation of the case to the House which it did not receive when it was last presented to their notice. What had struck him most particularly when his attention was first drawn to the matter was the fact that, if there were anything in Mr. O'Malley, Irwin's case at all, it necessarily involved imputations of the grossest and most terrible kind against distinguished persons both living and dead. The case was this. In 1835 Mr. O'Malley Irwin was tried for an offence which he believed at that time rendered a person on conviction liable to transportation—at all events, to very serious consequences. The Attorney General of that day, now Lord Justice of Appeals—Mr. Blackburne—acted as prosecutor, and he was assisted by the Solicitor General, Sir Michael O'Loghlen, afterwards Master of the Rolls, and by Mr. Serjeant Greene, afterwards Baron Greene, than whom three men more distinguished for ability and integrity it would be difficult to find. On the second trial he was prosecuted for the same offence by Sir Michael O'Loghlen, then Attorney General, and the Solicitor General, Mr. Woulfe. The imputation to which he had alluded was that a document known by the Crown Officers to be in existence had been deliberately kept back from the jury under the direction of those distinguished persons, and that they, together with the Crown Solicitor for Ireland, Mr. Kemmis, were concerned in a conspiracy against Mr. O'Malley Irwin, the object of which was to get him unjustly convicted, and that they obtained that result by the suppression of this document. At the time when he first heard that statement, it struck him that the charge was of a nature not only grave, but most incre- 2115 dible, although for the moment he was unable to explain the facts. He now asked the attention of the House for a short time while he gave the real explanation of the affair. It was now thirty years old, and a great many of the personages concerned had died, but living evidence could still be produced to verify his statements. Among the documents sent to him, he held letters under the hand of Mr. O'Malley Irwin himself. The statement of the hon. and learned Gentleman the Member for the Queen's County was, that a letter was suppressed and concealed for thirty years; that though the existence of the letter was not unknown to Mr. O'Malley Irwin, he was not acquainted with its terms; and that successive Governments in England and Ireland had refused to do him justice. Mr. Kemmis who, he was sorry to say, had died within the last ten days, had stated that for nine years he was not aware that Mr. Irwin had any imputation against him, and that on coming to London to attend in the great O'Connell case before the House of Lords he was astonished to find himself arrested in the street at the instance of Mr. Irwin, on the charge of stealing this document from the Castle of Dublin. As would be expected, the case was at once dismissed; and on returning to Ireland Mr. Kemmis made a statement to the Government of the facts of the case, which he should now very briefly communicate to the House. When the case first came on for trial in February, 1835, the charge against Mr. Irwin was that he had, for the purpose of obtaining the chairmanship of a county in Ireland, presented, without the authority of Mr. Johnston, the chairman of the county, a document purporting to be the resignation of that gentleman. There appeared to have been some attempt at a corrupt arrangement between Mr. Irwin and some of the friends of Mr. Johnston, the object being to induce the latter gentleman to resign his office, and the bargain contemplated seemed to be that Mr. Johnston, in addition to the Government pension, should receive £2,000 from Mr. Irwin. On the case coming on for trial, Mr. Blackburne, the Attorney General, in stating the facts to the jury, read the very letter which was now before the House, and which formed the subject of the hon. Gentleman's charge. [Mr. HENNESSY: Was this at the first trial?"] Yes, it was; and Mr. Blackburne also read to the jury the letter of the then Chief Secretary to Mr. Johnston, Mr. Johnston's reply, and some 2116 other correspondence. In the course of the case, however, the document of the 12th of October was abstracted from the court, and although read by counsel was not put in evidence by the Crown. The trial went on, and Mr. O'Malley Irwin was convicted. The case must have been removed by certiorari, and thereby acquired the incidents of a civil suit. Application was then made for a new trial, and one of the grounds put forward was that the original of the document of the 12th of October had not been given in evidence. Some months after the new trial came on, when Sir Michael O'Loghlen, the Attorney General, stated in terms the letter to the second jury, everything having been done to establish it as secondary evidence. Notice was given to Mr. Irwin himself to produce the letter, if the original came into his hands, and a copy of it was sent to him, with a notice that it would be used at this the second trial. Accordingly, the copy was admitted as secondary evidence of the original; it was commented on by Mr. Irwin himself, and further by the Judge, who gave full effect to it in its bearing on the crime with which Mr. Irwin was charged. That having been done, the second jury, like the first, convicted Mr. Irwin; and were they now to be told that this letter, which had been read on two trials, by two Attorney Generals, a copy of which had been furnished to Mr. Irwin, and on which he had commented at the second trial, had been concealed for thirty years, and had never been seen by Mr. Irwin till it was placed on the table of the House? [Mr. HENNESSY said, he did not state that.] The House must remember that this was not at all a new case, and that it had been thoroughly investigated when all those were alive who could give evidence on it, and who had conducted the case. Mr. Irwin was sentenced to nine months' imprisonment and a fine of £50. A month or two after the term of imprisonment to which he was sentenced had expired, Mr. Irwin applied to the Law Officers of the Crown to obtain the remission of the fine, on the ground that he was unable to pay it. That letter was dated the 20th September, 1836, and contained some important admissions. The writer said—Without impugning in the remotest degree the verdict of a jury or the decision of the Court of King's Bench, which sanctioned that verdict, I beg leave most respectfully to submit, in order to justify your compliance, that the prosecution 2117 against me was not founded upon a statutable indictment, but at common law; and I venture to impress on you there is no guilt if the mind be not disposed: Non est reus si mens non est rea; and that it is not by isolated passages, but by the context of what goes before, and follows after, a correct judgment can be formed. In refutation of an intention of fraud or to deceive, what stronger evidence can be adduced than that my letter of the 15th of September, 1833, addressed to the Private Secretary of the then Lord Lieutenant, was sent by me before the resignation, expressly referring to the then Solicitor General (Mr. Justice Crompton), and stating 'that the resignation of an assistant-barrister (alluding to Mr. Johnston) had been placed in my hands;' and that after the resignation, Mr. Johnston, the assistant-barrister, by letter, expressed 'his greatest satisfaction' and returned 'his' most grateful thanks to his then Excellency for his kind expressions concerning him on 'his' retiring; in reply to the Chief Secretary's letter, officially acknowledging the receipt of his resignation, and expressing his Excellency's regret on the occasion of his retiring, and that 'I' personally delivered it (the resignation). Conscious of the rectitude of my motives and of the soundness of the immortal spirit of Alfred's policy (if to him we owe the common law), I await your judgment with confidence; and, completely borne down by the grievous consequences of the adverse verdict and the great weight opposed to me, I trust you will consider the punishment already inflicted, and not sanction le droit du plus fort.I am, gentlemen, your most obedient and humble servant,GEO. O'MALLEY IRWIN.To the Law Advisers of the Crown, Chief Secretary's Department, Dublin Castle.That letter clearly proved two things—that the case of Mr. Irwin as to the missing letter was a mere afterthought, and that on the 20th of September, 1836, at all events, he had a copy of the letter in his possession, for he quoted expressions from it between inverted commas. Mr. Irwin did not venture to say to the Law Officers who prosecuted him that they had suppressed evidence. Sir Michael O'Loghlen, in his indorsement of this letter from Newgate, said that it was usual in such a case when a prisoner was unable to pay the fine to remit it, and added—In the present case the prisoner has been detained nearly two months in default of payment of the fine, and though I would not have considered a more lengthened imprisonment than that to which he was sentenced too severe punishment for his offence, I would recommend that he be discharged if he is not able to pay the fine.That was dated October 14, 1836; and the recommendation was acted upon. In an I affidavit on June 5, 1835, Mr. Johnston declared that he wrote the letter of the 12th of October "under very great embarrassment and enervation of mind," in 2118 consequence of his being under the impression that he was to be superseded by the issue of a new appointment; and Sir M. O'Loghlen indorsed that affidavit to the effect that in his opinion there was no ground for interfering in the case, and that the sentence should not be mitigated. In 1841 an application for a petition of right was made by Mr. Irwin; but Chief Baron Pigot expressed his opinion that such a proceeding was wholly inapplicable to such a case, and that Her Majesty could not with propriety be advised to fiat the petition. The Chief Baron, than whom there was no more astute or conscientious man, in the investigation of evidence, said, that the copy of the letter of the 12th of October, 1834, was read in evidence at both trials; that that copy, with respect to the authenticity of which there was no dispute, was placed in the hands of Mr. Johnston, who was examined in reference to it by Mr. Irwin; that the letter was commented on by Mr. Irwin in his address to the jury, before whom the testimony was fully laid, with Mr. Johnston's explanation; and that one of the questions left to the jury was whether they believed Johnston had given Irwin authority to convey to the Government his resignation of the office of assistant barrister. Now, it should be remembered that all that happened only six years after the trial of Mr. Irwin had taken place; but there was also a statement of the present Master of the Rolls in Ireland, who was not a person likely to allow anything which came before him to escape unnoticed, to the effect that in his opinion Mr. Irwin's charge against Mr. Kemmis was devoid of foundation. Such was the view taken by the Master of the Rolls when he was Attorney General in 1844, and it was idle after so great a lapse of time for his hon. and learned Friend to contend that a petition of right was to be fiated by the Crown because what he seemed to regard as all-important documents had been suppressed. So far as he was concerned in the matter, he would not trouble the House further, save so far as to make a few remarks with reference to what had been said about very distinguished persons having given a sort of approval to Mr. Irwin's case. Now Mr. O'Connell, than whom there was no more eminent man in his profession, got Mr. Irwin's statement of the case from himself, and, as his retaining counsel, no doubt gave an opinion in his favour. Mr. O'Connell, however, was unaware of the facts which had just been 2119 laid before the House; he had not the truth disclosed to him, and, that being so, his opinion could not be regarded as worth a farthing, while the opinion of the present Lord Chancellor was wholly based on the assumption that Mr. Irwin's statement was to be relied on, and that there was no opposing testimony. He himself, proceeding on that assumption, was equally ready to admit that Mr. Irwin had suffered a great wrong; but it was not fair to construe an opinion accompanied by such qualifications as an absolute expression of opinion. He could only say that he entirely concurred with Chief Baron Pigot in thinking the case was not one for a petition of right, and he maintained that the Government would disregard their duty to society if they were to grant one after a full consideration of the facts which had been disclosed.
THE ATTORNEY GENERAL
said, that after the exhaustive statement of his right hon. and learned Friend he should not have risen but that the hon. and learned Gentleman opposite had raised an important legal and constitutional question. It so happened that the last of these so-called petitions of right was presented by Mr. O'Malley Irwin in the time of his immediate predecessor, who added another to the numerous Attorney Generals who had all felt it to be absolutely inconsistent with their duty to endorse the fiat on a petition of right of that description. He could assure the House that the position taken by the hon. and learned Gentleman opposite went to subvert the most fundamental principles of our law. Let him take the dates and facts from Mr. Irwin's own statement. Mr. Irwin himself said that in July, 1844, he transmitted through Sir William Follett, then Attorney General, his petition of right to the Secretary of State. He was informed there had been an earlier petition of right which Sir Frederick Pollock did not think fit to direct to be fiated. But Sir William Follett was of opinion that it was no petition of right at all, and accordingly nothing was done upon it. In 1852, when Mr. Walpole was Secretary of State, and Sir Frederick Thesiger and Sir Fitzroy Kelly were the Attorney and the Solicitor Generals, Mr. Irwin again renewed his attempt. It was a mere matter of course that when that which called itself a petition of right came to the Home Office it should be laid before the Attorney General to ascertain whether he would advise the usual endorsements to be 2120 put upon it, and the fact that that was not done showed that Sir Frederick Thesiger like all other Attorney Generals, was of opinion that this was no petition of right at all, and not a document which could properly be endorsed. Nevertheless, the right hon. Gentleman then the Home Secretary, whose kindness of heart they all knew, was desirous to have the matter inquired into in some way, in order that it might be seen whether there was any case upon which anything could be done for this unfortunate gentleman. Mr. Walpole accordingly referred the document to Sir Richard Bethell, then a private barrister—the last thing which the Home Secretary would have done if he had thought it a petition of right. Nothing came from that reference, nor was anything done in regard to the matter when Sir Richard Bethell himself for the first time succeeded to office. In 1858, when Lord Derby again came into power, the hypothetical and most guarded opinion was given by Sir Richard Bethell, that if all Mr. Irwin's allegations were right, and there was no case to the contrary, then he had suffered grievous injustice. But then occurred another change of Government, and another petition of right was presented by Mr. Irwin on the 24th of April, 1861, when Sir Richard Bethell was Attorney General, and he of course was the Law Officer to whom that petition must have been submitted to determine whether it could be endorsed as a petition of right. He advised, like all his predecessors, that it could not be so treated; and Mr. Irwin in a letter spoke of that Law Officer in no complimentary terms in consequence. A fundamental fallacy had pervaded the arguments of the hon. and learned Gentleman opposite. Misled by the words "petition of right," he seemed to think that any document to which any man chose to give that name was a petition of right within the meaning of the law, than which there could be no greater mistake. Both before the recent Act, and since the passing of that Act, the petition of right was the remedy which applied where the property of a subject was alleged to be in the hands of the Crown, or where money was claimed under contract by a subject from the Crown, and where there was an absence of an appropriate compulsory remedy against the Crown. Where there was a want of such a compulsory remedy against the Crown, then, and then only, a petition of right would lie to recover property or money due under contract. In the present case they had merely the alle- 2121 gation that Mr. O'Malley Irwin had been twice convicted by a jury of an offence against the laws of the country; that that conviction remained unreversed, and that he was entitled to compensation. It was ridiculous to argue, therefore, that he was in the position of a person who could not use the ordinary compulsory process of law against the Sovereign. It was a fundamental maxim of our law that the Grown could do no wrong; and that principle, rightly understood, was almost the corner stone of our liberties. It meant that they could not impute to the Crown any wrong that was done; and for that reason not even the personal command of the Sovereign could exonerate any person by whom a wrong was done from personal liability for the wrong; and if it were true that in the course of all these proceedings there had been any dereliction of duty on the part of the vast number of public officers who had been more or less connected with them—if the Crown prosecutor had, for example, withheld evidence when he ought to have produced it—they were personally liable under the law and constitution for such acts. To say, then, that the Crown was to be responsible for all the wrong done by its servants was to contradict principles of law so fundamental that he was really astonished that a Gentleman with the hon. and learned Member's knowlege should rise in that House and gravely attempt such a thing. What were the rules laid down by the highest authorities on these matters. Here were the words of Blackstone—Petition of right is of use where the King is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the Crown, grounded on facts disclosed in the petition itself.As to the impossibility of the King doing no wrong, Blackstone said—The King can do no wrong, which ancient and fundamental maxim is not to be understood as if every transaction by the Government was of course just and lawful, but means only two things —first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor is he answerable for it personally to his people; for this doctrine would destroy the constitutional independence of the Crown; and, secondly, that the prerogative of the Crown extends not to do any injury.To this, Lord Chief Justice Erie, in a case in the Common Pleas, had added the following remark: —This maxim has been constantly recognized, and the notion of making the King responsible in damages for a supposed wrong tends to conse- 2122 quences that are clearly inconsistent with the duty of the Sovereign.Lord Lyndhurst had investigated the subject in 1843, when Lord Canterbury brought a petition of right to recover the value of certain property destroyed at the fire in the Houses of Parliament. That was a very flimsy case; but there was an element of property as well as a supposed contract by the Crown to do all that was necessary to preserve the property from fire. Lord Lyndhurst, in that case, said—Is it supposed that the Crown is responsible for the conduct of all persons holding public offices and appointments, and bound to make good any loss or injury which may be occasioned by their negligence or delinquency? At least some authority should be cited in support of such a I doctrine.… Stamford says:—Petition is all the remedy the subject hath when the King seizeth his land or taketh away his goods from him, having no title by order of his laws to do so, in which case the subject, for his remedy, is I driven to sue unto his Sovereign lord by way of petition only, for other remedy hath he not. He speaks of this proceeding as applicable to the illegal seizure by the King of the lands or goods of a subject; and, although, this is not conclusive against its application to other cases, yet no instance has been cited, &c. … The Year Books, with the abridgments of Fitzherbert and Brooke, and other authorities, have been carefully searched, and no case has been found to warrant this proceeding. The decisions go back several hundred years, and in the absence of all precedent during so long a period, I think I should not be justified in deciding, for the first time, that such a proceeding can be maintained. Indeed, if the Crown cannot be guilty of negligence or personal misconduct, and is not responsible for the negligence or personal misconduct of its servants, it; follows, of course, that in those cases there can be no such remedy; and, on the other hand, the absence of all trace of the remedy would itself afford a strong argument against the liability.Still more recently in the Court of Common Pleas it had become necessary to investigate the same principles in a case in which the Law Officers thought it their duty to grant a petition of right, as a question of property was involved. A vessel had been seized by our African squadron on suspicion of being engaged in the slave trade, and there was a sort of question whether the Crown might not be supposed to be wrongly in possession of the property thus seized. In that case Lord Chief Justice Erle said—To these reasons and authorities we would add an opinion, that there is good ground for maintaining that which we find to be the law on this subject. We think that if each of the Queen's subjects who believed he had been at any time in any reign wronged in the administration of civil or military affairs could sue the Sovereign for the time being for the amount at which he might 2123 estimate his damage, the extent of pernicious result would be great.The House probably was aware that Mr. Irwin had passed his life since the time of this trial in bringing actions against everybody—Lord Normanby, Lord John Russell, Sir George Grey; and only last Saturday his right hon. Friend (Sir George Grey) was charged by him before a magistrate in London with no less a crime than high treason. The magistrate, however, was so sensible as not to entertain the charge, for which failure of justice, no doubt, in duo course of time, Mr. Irwin would apply for another petition of right. Lord Chief Justice Erle went on in this very judgment to refer to the action against Sir George Grey as an instance of the absurdity of sanctioning a petition of right in every case where it was applied for. He said —And we refer to the petition of right adduced in evidence in 'Irwin v. Sir George Grey' (3 Fost. & Fin. 635) as an example of the mischief which might arise if such was the law.Since he had the honour of holding his present office he had been asked to endorse a petition of right for a man who had an action pending at the time, when it pleased Parliament to pass a general Act which might be pleaded in bar to his action. According to the doctrines which had been stated on this subject, if an Election Committee unseated a Member he might have a petition of right for wrongful deprivation of his seat. Nothing could better illustrate the extravagant notions which seemed to be held as to these petitions than a document which had lately been forwarded to him. It was a petition to Her Majesty from a Mr. Clare, who had had an action against the Admiralty by a petition of right on some patents and had lost the verdict, at which, of course, he was very much discontented. Mr. Clare had made Borne most extraordinary statements and accusations in this document. For instance, he said—If ever a trial at law were won by the plaintiff, and proved by the defendant for the plaintiff, the case of 'Clare v. the Queen' is the one, from the fact that all the Admiralty witnesses were broken down on cross-examination. If ever a trial were garbled by the press for the defendant, to the prejudice of the plaintiff, the case of 'Clare v. the Queen' is the one. If ever a Judge sat on the bench biassed, the Lord Chief Justice's speech for the Admiralty in the case of 'Clare v. the Queen' is a ratification in toto. If ever a verdict was given against the weight of evidence, it was in the trial of 'Clare v. the Queen.' If ever subornation of perjury were divulged, it was on the trial of 'Clare v. the Queen.' If every conspiracy were made use of to swindle a 2124 plaintiff of his property, it was on the trial of Clare v. the Queen.'And he concluded by these extravagant prayers—1. To see that I am settled with in full, with interest, for my patents and inventions, both for the past and for the future, and that all my claims for losses that have accrued to me by the Admiralty withholding from me the payment of my just rights, along with all the expenses I have been put to in developing and promoting this great modern question of metal shipbuilding, and the legal charges contingent on this case to be paid me. 2. That my knowledge shall be set free throughout the Royal Dockyards, and that I am remunerated in accordance with my capabilities upon a percentage on outlay. 3. That the appointment of Naval Mechanical Constructor to the British nation, with hereditary title, in unison with the paramount importance of my patents and inventions to Great Britain, be granted to me, per patent, 4. That hereditary titles be presented to those gentlemen who have so nobly stood by me on public grounds during my oppression from the Admiralty, to their eternal fame—namely, Mr. W. Titherington, of Dee Hills, Chester, and Mr. Edwin Haigh, of Cote Brook, Tarporley. 5. That your Majesty disqualify Sir Alexander James Edmund Cockburn, the Lord Chief Justice of England. 6. Ex-office Mr. Collier as Solicitor General, and withdraw his patent as Q. C. 7. Withdraw the patent of Q.C. from Sir William Atherton. 8. Cause the Lord Chancellor to disbar Sir W. Atherton, Mr. Collier, Mr. West, and Mr. Macrory,It was absurd to say that the Attorney General was not to exercise his common sense as to endorsing these petitions of right. He (the Attorney General) had acted as his predecessors had done, and refused to advise the Crown to act on the document in question. The Court of Chancery protected itself against frivolous proceedings by requiring the signature of counsel to petitions, and the House of Lords required the certificate of counsel that appeals were proper and reasonable. It was also the duty of the Law Officers to exercise a judgment as to whether what was called a petition of right was not an abuse of the name; and if the present Law Officers had put their fiat on this gentleman's petition, they would have adopted a different course from that which had been pursued by their predecessors dining a period of thirty years, and would have given advice the tendency of which must have been most pernicious.
§ MR. MALINS
said, that the case of Mr. O'Malley Irwin, as brought forward by his hon. and learned Friend the Member for the King's County, if not contradicted, would have required some consideration; but when it appeared from the statement of the Attorney General for Ireland, that 2125 the letter of the 12th October, 1834, was used both at the first and second trial, the case of Mr. O'Malley Irwin became perfectly ridiculous. Mr. O'Malley Irwin had pursued him for several years. Wherever he went, up started Mr. O'Malley Irwin (invariably armed with the opinion of Sir Richard Bethell and other authorities) in a manner that was magical, and poured forth his grievances. He had taken some pains to investigate the case, and had come to the conclusion that it was unfounded; and, as Mr. O'Malley Irwin had vexed every lawyer and every tribunal for twenty-eight years, he became afraid that that gentleman might bring an action against him for not having paid sufficient attention to his papers and statements. He held that the privilege which the Law Advisers of the Crown had of refusing their fiat to a petition of right ought to be exercised with great caution, but he believed that they were right in refusing it in the present instance. Mr. O'Malley Irwin had been tried by the laws of his country, and, in addition, had had the unusual advantage of a second trial; and although he was convicted on each occasion, he had been pestering all the Courts of the country for redress ever since, while a person who had been convicted at the Old Bailey thirty years ago would have as good a right to claim it as Mr. O'Malley Irwin had. The case had been thoroughly investigated, and he hoped Parliament would hear no more of it.
§ MR. HADFIELD
said, that to demands at law there was a statutable limitation of six years. He thought there ought to be some such limitation in respect to demands on Parliament. If they heard claims of thirty years' standing, why not hear those of 300? He was surprised that, after the lapse of thirty years, so satisfactory an answer could have been given to the present case.
§ MR. HENNESSY,
in reply, said he wished to say a few words, both on the question of fact and the question of law. He again quoted to the House the opinion of the late Mr. O'Connell, who had been employed by Mr. Irwin as counsel in the case, to the effect that he was entitled to proceed by petition of right. Mr. Kemmis's statement of the case was totally false. That document was prepared for Lord John Russell, and was minuted by him, but it contained a grave misstatement of fact. [The hon. and learned Gentleman here quoted some documents which bore 2126 the endorsement of Lord John Russell when at the Home Office.] Mr. Kemmis, in his account of the transaction, did not give the letter of the 12th of October, 1834, but only his own version of the case; and that statement had deceived Lord John Russell. Mr. Irwin had obtained copies of the letters from Mr. Vignolles, and Mr. Armstrong, a Protestant clergyman; but the Crown had not acknowledged their authenticity. Supported by the opinion of Mr. O'Connell, who gave it after much deliberation, and by the opinion of Chief Justice Pennefather, he was inclined to think that his right hon. and learned Friend had been misled by the documents which had so recently been placed in his hands. He hoped the Government would lay those documents on the table, for they should not refer to official documents unless they were laid on the table. He adhered to the opinion of Mr. O'Connell that Mr. O'Malley Irwin had suffered a grievous injustice, and that this petition of right should be fiated by the Crown.
§ SIR GEORGE GREY
said, he wished to say one or two words with reference to the use which had been made by the hon. and learned Gentleman of the documents from which he had just quoted. From what had been stated by the hon. and learned Gentleman they appeared to be official documents, some of them confidential communications between the Private Secretary of Lord John Russell and the Secretary to the Lord Lieutenant. One of these documents bore the endorsement of the Secretary of State for the Home Department, and they must have been abstracted from the office of the Secretary of State. He did not ask the hon. and learned Gentleman how he obtained possession of them, for no doubt they came to him through Mr. O'Malley Irwin. How Mr. O'Malley Irwin could come by them he did not understand; but he hoped the example set by the hon. and learned Gentleman of quoting from such private and confidential documents in that House would not be drawn into a precedent.
§ MR. HENNESSY
read a letter signed "S. H. Walpole," which enclosed the documents when that right hon. Gentleman was Secretary of State for the Home Department, addressed to Mr. O'Malley Irwin.
§ SIR GEORGE GREY
said, that he was quite sure his right hon. Friend the Member for the University of Cambridge could not have placed documents of that kind at 2127 the disposal of any individual, except by mistake or accident.
§ Question put, and negatived.
§ Notice taken, that 40 Members were not present; House counted, and 40 Members not being present,
§ House adjourned at Nine o'clock.