§ MR. MAGUIRE
respectfully begged the attention of the House for a very few minutes to a most important question. To put himself in order he would conclude with a Motion. Unless some steps were taken, we were within a very short time 114 of hearing of a very solemn and a very terrible tragedy, and the question was whether the Government of England would allow that tragedy to be performed in the eyes of the world—whether they would go on, or whether they would pause. Into the merits of the question—the morality of the question he would not enter—were he to do so he might injure the cause of those on whose behalf he had risen to speak. A significant answer, however, had just been given by a Member of the Government. Of the five men who were tried and sentenced to death at Manchester, not only had one received a free pardon, but he had been restored to Her Majesty's service. The others were to stand upon the scaffold, and the rope might have been fastened round their necks by the evidence of some of the very people who swore against the man just taken back into the Queen's service without a stain upon his character. What had been done at Manchester? Five men were tried, convicted, and sentenced to death. Five others were tried, but the evidence on that trial was so riddled and damaged that the prisoners were acquitted. Another batch of prisoners was then arraigned for the same offence; but the legal representatives of the Crown found that the evidence had been so discredited on the trial of the second batch that they would not proceed, and entered a nolle prosequi. Under those circumstances, would it not be well for the Government to pause and consider whether the law of England was such as had been stated by the advocates of these men, or whether it had been correctly laid down by the Judges who tried them? These Judges might be very eminent in their profession, but they were not infallible. Now if, as he understood, a great many eminent men in Westminster Hall agreed in opinion with the counsel for the prisoners, before the Government should do what was irrevocable they ought to have the case solemnly submitted to the adjudication of all the Judges of England. He would say nothing as to the merits of the question, because, in his opinion, the man who should do so would act most indiscreetly; but here the advocates of the condemned men put forward a certain legal proposition. They said that it was the law of England that if a man be arrested without a warrant, or upon an informal warrant, he might resist to the death; and if strangers interfered to rescue him, and one of the captors was killed, the offence 115 was not murder, but manslaughter. That opinion rested on a decision of the twelve Judges in the case of Tooley, tried more than 150 years ago, the decision being arrived at by a majority of seven Judges to five, and it had never since been reversed—on the contrary, there had been, many instances in which that decision had been fortified by the judgment of other Judges. To his own knowledge there were many able and learned men at the Bar who held that this was a question of the greatest gravity, and one which was worthy of having a solemn adjudication pronounced upon it. What did Mr. Justice Blackburn do? When the point was raised, he said he would put it to the jury whether there was a warrant, or whether the warrant was imperfect; but he never did, until the point was raised again on the third trial, when the Attorney General was so conscious of the worthlessness of the evidence which had broken down on the second trial that he entered a nolle prosequi. It was then that the Judge said—Will you allow me to put this point, which was raised on the first issue? Will you allow me to put it to this Jury, which has no issue before it?Now, in the name of all that was just, he would ask the Government not to perpetrate a legal murder. He begged to move the adjournment of the House.
§ SIR PATRICK O'BRIEN
, in seconding the Motion, said, he was certain there was not a Member of that House who did not recognise the deep solemnity of the occasion and account it one which demanded at the hands of the Government the very gravest deliberation; and it was in that spirit that he ventured to rise and add his humble voice to what had been urged by his hon. Friend, who had alluded to the circumstances of a trial of great moment, decided by Lord Chief Justice Holt a hundred years ago, and which was stated to have a direct bearing on the fate of the unhappy men whose case they were then considering. He (Sir Patrick O'Brien) believed that all the learned gentlemen who defended the prisoners had pledged their professional character to the statement which they had embodied in a paper, which they had addressed to the Judges who tried the case; and that these Judges, sitting, not in open Court, but as it was technically called, in camera, had unfortunately arrived at the conclusion that this grave question was not one to be reserved for future consideration. He 116 believed that the Judges were not in the habit of depending on their individual judgment in important cases, but that, on the contrary, they were in the habit of seeking the assistance of their brother Judges; and he would ask the right hon. Gentleman to state whether this had been done in the present case; and, if so, whether the Judges were unanimously of the opinion that the case ought not to receive a further consideration—for if only one of the Judges entertained a doubt, he thought a case was made out for a solemn re-consideration of the case. If such were the facts, he hoped the public would be informed that full justice would be done in the case. Not only the people of Manchester, of London, and of England, but the people of Europe, and of all civilized countries, were looking with the deepest interest to see what would be the course taken by the Government of a country—which had ever prided itself on its strictly merciful and impartial administration of justice—in connection with these men.
§ MR. FAWCETT
said, that nothing but a sense of the great responsibility which lay upon Members of that House could induce him to say a word on this subject; but he felt that they were on the eve of a very great crisis. He was not going to express any decided opinion on the subject. He fully recognised the difficulty in which the Government were placed; they had a fearful responsibility upon them, and he would be the last person to say a single word which could in the slightest degree tend to increase that difficulty. Without uttering one word of sympathy with Fenianism—for he looked upon it as a foolish, and therefore as a wicked conspiracy—he had no hesitation in saying that if the four men who were now condemned to death should be hanged in Manchester on Saturday morning, that event would send a thrill of horror into the hearts of thousands in this country. Now, he wished to ask the Government whether there were not some grounds which might induce them to exercise the prerogative of mercy? He would not say a word to palliate the offence which these men had committed. If he were to do so, he should commit a mistake as great as if he should apply to it language of unnecessary harshness. But what he felt was this—that, owing to an unfortunate mistake—for it was a grave mistake, and one fruitful in serious consequences—one man who had been convicted and condemned to death had im- 117 mediately afterwards obtained a full pardon, and thus an air of uncertainty was thrown over the trial. That circumstance had produced an impression upon the public mind; and when they considered how much that impression would be deepened if the four men were executed, he thought it would be seen that there were some grounds for the exercise of the prerogative of mercy. There were two elements in the case which undoubtedly, whether rightly or not, would excite popular sympathy on behalf of the criminals. If the man who fired the fatal shot were hung, there were three others who did not fire the fatal shot. There would therefore be a difference, though not a legal one, in the public mind between the case of Allen and that of the three others. He had come up to London for the purpose of asking several hon. Members of that House—he did not wish to conceal it—to sign a memorial to the Home Secretary on behalf of the condemned Fenians. More than one hon. Member of great experience and judgment had told him that they would willingly have signed the memorial, but for the unseemly and disgraceful scene enacted at the Home Office. Now nobody regretted that scene more than he did. It was most unfortunate, and he thought, perhaps, too strong an epithet could not be applied to it; but he implored the Government not to let that scene in the slightest degree affect their determination. Even if they thought there was no ground for the exercise of the prerogative of mercy, let them give an assurance to the country that their decision had not been at all swayed by the unseemly behaviour of fifty men, who, although excited, could not be excused. Let them at least be able to show that they had not been influenced in the most remote degree by the violent language that had been used and the threats that had been uttered in a time of much popular excitement. This was a question involving important considerations of policy, and for his own part he believed a strong Government exhibited its strength and proved its confidence in it by exercising mercy. For 400 years we had endeavoured to show our power in Ireland by exercising rigour, and that rigorous policy had cast a blot upon the reigns of some of our greatest monarchs. Let us on this occasion exercise mercy, and while firm in our policy, let us be determined to do all we could to ameliorate some of the wrongs under which Ireland suffered. Let not 118 the Government be afraid of the reproach that they had given way to a popular cry, for he believed they would really show their power by exercising the sacred prerogative of mercy. He had never felt more strongly in his life than on this subject. Indeed, it had made him quite miserable to think of what was about to be done. He firmly believed that if the Government saw fit to exercise mercy, future generations would regard them as having done perhaps more than any Government had ever done before to win the hearts of the Irish people.
§ SIR GEORGE BOWYER
said, he rose for the purpose of making only one observation, which was that the United Kingdom was the only country in the civilized world where the right of appeal in criminal cases did not exist. This country was the only one in the world where a man condemned to death, or to any other punishment, could not have an appeal to the highest tribunal of the land. In civil cases, where the smallest sums of money were in dispute, a man could, after the verdict of a jury was given against him, carry the case from court to court until he reached the supreme tribunal, no matter whether he had valid grounds for doing so or not; and it was a disgrace to this country that in the case of life and death no such appeal could be even upon legal points raised at the trial, unless leave were given by the Judge who tried the prisoner, and who possibly had formed a strong opinion against him. Let them apply the principle of appeal to all cases. In this one there were four men under sentence of death in whose favour a point of law had been raised. He had the highest possible respect for Mr. Justice Blackburn and Mr. Justice Mellor, who were Judges worthy of the high position they occupied; but all he could say was, that the point of law being raised, there were two opinions on the subject. The counsel for the prisoners were confident that the point of law they had raised would reduce the offence from murder to manslaughter, and therefore thought that the lives of the offenders ought not to be sacrificed. Other lawyers held the same opinion. The Judges differed from them; but still the fact remained that a point of law had been raised in favour of these men, which it was surely desirable should be settled before their death would render it useless to settle it so far as they were concerned. This was a most solemn question, and he certainly 119 thought that the circumstances were quite sufficient to justify Her Majesty's Government in suspending the execution of the men until this point of law was argued and decided, and it was fairly shown that the prisoners had forfeited their lives to the country, which could only be decided by the Judges of the Exchequer Chamber. He did not think that there could be two opinions upon the subject, that, notwithstanding the theory of the law, the right of appeal ought to be admitted in this case. He hoped the Home Secretary and the Attorney General, whom he was glad to see in his place, would be influenced by these considerations.
§ MR. SERJEANT GASELEE
said, that he was not going to follow the hon. Member for Brighton (Mr. Fawcett) in the view he took of the case, differing as he did from almost every sentence that he had uttered, nor was he prepared to take upon himself the responsibility of recommending to the Government to exercise or withhold the exercise of the prerogative of mercy; but the purpose for which he rose was to express his opinion that it was of the utmost importance that in such circumstances as the present the utmost caution and deliberation should be used. He would not presume to address the House on the point of law; but he wished to put it as strongly to the Government as he could, that in this case, where there was the point of law involved in the first trial, it was not until the third trial took place that the Judge left the question about the legality of the warrant to the jury; therefore he did not think that the country would be satisfied until the question had been submitted to the whole of the Judges, and had been decided by them. Any difficulty he previously felt was increased by the publication of the correspondence between Mr. Justice Blackburn and the prisoners' counsel. The learned Judge stated that he had consulted other Judges; but he went on to say that although that judgment had satisfied him that he had come to a right conclusion, the responsibility rested with him and not with them. Therefore he Lad only consulted them extra-judicially. An extra-judicial opinion of this kind, asked for by a Judge who was firm—perhaps too firm—in his opinion was not satisfactory; and he thought the country would not be satisfied until the Judges had given a judicial and deliberate opinion in the case. There were few, he believed, who would extenuate the crime that had 120 been committed; but the greater the crime and the greater the excitement to which it had given rise, the greater was the care that should be exercised. Therefore he ventured to ask that for a few days only the sentence should be respited, until the opinion of the Judges, who were all now in town, was taken. It certainly appeared to him to be a blot upon our judicial system that there should be no right of appeal in criminal cases, and that it should be made to depend upon the Judge whether a point of law raised in a prisoner's favour should be permitted to be brought before a Court of Review or not. He had had some experience in criminal trials, having twice travelled the Circuit for Her Majesty's Judges, and he said unhesitatingly that in a case like this he would not take upon himself the responsibility of deciding on the fate of these prisoners without having the assistance of the Judges. He therefore most respectfully implored his right hon. Friend to suspend the execution of the sentence for a few days, and he believed that if the Judges once decided the point, not a voice would be raised against the Government in the exercise of their discretion as to the fate of these men; but if they were executed merely on the opinion of the two Judges alone who tried them that this point should not be heard in their favour, great dissatisfaction would, he feared, be felt even among men who abhorred Fenianism as much as anybody could.
§ SIR COLMAN O'LOGHLEN
rose to join with other hon. Members in their appeal that the execution of these convicts should be postponed until the question of law raised in their favour was decided by the Court of Criminal Appeal. He must say that he very much regretted that Mr. Justice Blackburn had not thought fit to reserve the point submitted to him; at the same time, he was perfectly aware that it was in his discretion alone to do so. He agreed with the hon. and learned Member for Dundalk (Sir George Bowyer) that it was a serious blot in our judicial system that, while appeals were allowed in the most trivial cases affecting the rights of property, they were not allowed, except in some cases, by consent of the Judge, and, in other cases, with the fiat of the Attorney General. He would not express any opinion whether the point raised was a sound one or not; but everyone must admit that it was a question of the highest gravity, worthy the consideration of the highest tribunal 121 in the land, and if the Judges should decide against it, the unfortunate convicts would suffer their sentence with much greater satisfaction to the public than if they were hurried into eternity without such a decision. The House would remember that in the case of Charlotte Winsor, though the crime of which she had been convicted was a most atrocious one, the late Law Officers of the Crown granted their fiat for a point of law being argued before the Court of Queen's Bench. The case was then allowed to go to a Court of Error, which affirmed the decision, and the public mind was satisfied. He therefore thought that his hon. Friend the Member for Cork (Mr. Maguire) was quite justified by the correspondence which had been published in bringing the matter before the attention of the House. There was no difficulty in dealing with this matter. Within a week or ten days the Judges could be summoned and give their decision upon the point. It was not too late for Mr. Justice Blackburn to reserve the points yet, and no doubt he would do so if the Home Secretary expressed a wish that it should be done. He had addressed himself to the question entirely in its legal aspect, and he did not think, as a lawyer, he should have been performing his duty if he had not expressed his sentiments on this occasion.
§ MR. BAGWELL
trusted that the Government would listen with attention to the representations now made to them. Undoubtedly, these men had been found guilty of the offence of which they were charged, nor could he deny the existence of a dangerous conspiracy; but as the legal point had been raised, in what a position would the two learned Judges who tried the case and Her Majesty's Government be, if these men should be executed, and it should turn out afterwards that the point raised did change the character of the offence, and how greatly it would aggravate the disaffection in Ireland. He was sorry that it had been necessary to bring this question before the House. He was quite sure that the Government were anxious to show mercy to these men, if it could be shown consistently with safety to the State. The people of England had not suffered anything like so much from Fenianism as the loyal portion of the Irish people had, and no one was more anxious than he to see it put down; but he implored the Government not to be steeled by popular clamour, being convinced that 122 if it was considered expedient that these convicts should undergo the full sentence of the law, the people would be much better satisfied that execution should be delayed until after the Judges had given a judicial opinion upon the point which had been raised. If it were decided by the Judges that the sentence must be legally carried out, it would then be time for those who had a feeling against capital punishment in such a case to come forward and urge the Government to spare the lives of these men.
§ MR. REARDEN
thought that the Government would do a wise act in referring this question to the Judges. It could do no harm, the minds of the people of England would be set at rest by their decision, and possibly a miscarriage of justice might be prevented.
§ MR. GATHORNE HARDY
I will not conceal from the House the painful position in which this discussion necessarily places both myself and also to a certain extent the Government with which I am connected. But, as I understand it, the question which the hon. Gentleman opposite (Mr. Maguire) wishes to raise is not one as to the merits of the case at all, but as to what he calls the legal question. That is to say—I must beg the hon. Gentleman's pardon for saying it—he wishes me to take an absolutely illegal course. In a case of the utmost gravity, as I admit it to be, and which has therefore been considered with the utmost gravity and care by the Judges who tried it, he wishes me to show this mark of contempt for them, after they have taken upon themselves the most solemn and painful responsibility, which they might have avoided by throwing over their legal decision on the points raised before them, and by referring them to some tribunal which I have neither the power nor the right to summon. Mr. Justice Blackburn, let me say, when the point was raised before him and his brother Judge, thought so little of it at the time that he did not think it even right to say that he would consult any other person about it, or take any other step in reference to it, but decide it at once. He thought there was nothing in the point to cause any difference in the verdict that the jury ought to give. But when he came to London he did consult all the Judges. I believe I am in a position to say that from no single Judge did he receive an adverse opinion to that which he and Mr. Justice Mellor had formed. Mr. Justice Blackburn 123 needs no praise of mine but this I will say, that a man of more acute intellect, or more fit to come to a right decision on a point of law than Mr. Justice Blackburn does not exist. And when I know the pains he has taken, and the labour he has given, himself in order that he might arrive at a right conclusion as well upon the facts of the case as upon the points of law, I should consider I ill discharged the duty that I have to perform if, after the Judges have tried the case and decided upon a point of law, I were to take a step such as has never been taken under such circumstances before, and call upon the Judges to review the judgment of those who are solely responsible for what they have done, and who have taken upon themselves—I will not say boldly, but conscientiously—that responsibility because they believed it to be their duty. That responsibility has been exercised, I believe, justly as well as conscientiously, and it will never be my duty to interfere with the execution on that ground which the hon. Gentleman has mentioned.
§ MR. MONTAGU CHAMBERS
said, that this was a solemn and important subject, and he wished to correct an error into which the right hon. Gentleman, as a public functionary, had fallen. The right hon. Gentleman would not commit an illegal act if he advised Her Majesty to exercise her Prerogative, and ask her Judges to consider whether there was any legal objection to this conviction. He went deeper than the Act of Parliament; he stood upon the Prerogative of the Crown. Although the right hon. Gentleman said there was no precedent for such an interference, yet precedent after precedent could be quoted anterior to the Act of Parliament which was passed a few years since; for whenever cases occurred which deserved to be argued before the Judges, Her Majesty graciously called them together to consult upon those cases. It was the Prerogative of the Crown to call in the Judges to advise Her Majesty when she was asked to exercise the Prerogative, not of mercy, but of pardon, on the ground that there had been an illegal conviction. He must admit that he had not studied this question. It might be that Mr. Justice Blackburn and Mr. Justice Mellor were right; but it might also be that they were wrong in their ruling upon the question of law raised before them. But as regarded the extra-judicial reference that had been made 124 to the other Judges, he desired to point out that a private reference was one thing and a public argument conducted by counsel on both sides quite another, and it might be that the Judges who had given their private judgment if they heard the arguments pro and con might say that they had been rather too hasty, and they might decide differently if they heard those arguments. The question now was, whether it was right for the Secretary of State to submit to the gracious consideration of Her Majesty whether her Judges should not be called together to say whether there had or had not been a failure of justice so far as the legal point of objection was concerned. The lawyers in that House confined themselves to the legal objection; but when the counsel for these prisoners said they believed they could adduce arguments to show that the conviction was a wrong one, it would be wise, generous, and right for the Secretary of State to advise the Crown to have it thoroughly argued. He had no doubt about the policy and propriety of such a course. It might be that there was little or nothing in the objection taken; but the grand object of the administration of justice was to give public satisfaction, and the only answer to the appeal seemed to be, "Let us hurry on the execution." [Cries of "No!"] It must amount to that. The great object was to have every one satisfied that this was not an illegal or improper conviction. But was there no ground for the public uneasiness? He wished to direct the attention of the Attorney General to what took place on one of the subsequent trials. He understood that an objection was taken to the legality of the conviction for murder on the ground that there was no warrant in the hands of the officer who had the rescued prisoners in custody, and that the question whether there was a warrant or not, or whether it was a legal warrant or not, was not submitted as a matter of fact to the first jury. But he heard that afterwards, on the third trial, with an entirely new jury—the question having been thus raised on the first trial—the learned Judge proposed that the matter of fact as to the existence of the warrant and its being in the possession of the officer should be put to the third jury. He did not mean to say anything uncivil or unkind of the learned Judge; but the circumstance to which he had referred showed that Judges might make mistakes; and if they could make 125 mistakes in a matter of that description, was it not possible that there might have been an error of judgment committed with reference to the other questions raised to be submitted to the Judges? Moreover, the very fact mentioned by the Home Secretary that Mr. Justice Blackburn had given his most anxious and careful attention to investigating whether there was anything in the points raised would, he thought, convince ordinary minds that they were worthy of being submitted to the other Judges. That circumstance might lead very fairly to the inference that the simple course of proceeding adopted in former times, and followed for centuries—namely, that of Her Majesty calling upon her Judges to hear counsel argue points of law raised in favour of her subjects who might be exposed to the operation of the criminal law—ought to be resorted to in this instance. From his own reading and experience he could state that before the Act passed, which gave a sort of right of appeal, the course adopted by the Judges was this:—Upon counsel raising an objection, the Judge would say, "I reserve that for the consideration of the twelve Judges." But that meant not simply that he had the power of reserving it, but that he submitted that Her Majesty, having reference to her gracious regard for the lives of her subjects, should call upon the twelve Judges to decide whether or no, according to the law of the land, there had been a right conviction. It was therefore to be hoped that the Secretary of State would not feel himself to be in the critical predicament which he supposed; because the responsibility was not upon the right hon. Gentleman. That was a total mistake. All that was suggested was that he should solicit Her Majesty to ask the advice of her Judges, after hearing counsel on both sides, as to whether there had been a legal or an illegal conviction for murder. In order to give entire satisfaction to the public it was desirable that the questions which had been raised and agitated in that case should be submitted to the careful consideration of the Judges, so that they might hear them fully and fairly argued upon both sides—for he apprehended that hitherto they had heard but one side—namely, the arguments of Mr. Justice Blackburn and Mr. Justice Mellor.
§ MR. MAGUIRE
said, he had been prepared, on the authority of his hon. and learned Friend the Member for Dundalk (Sir George Bowyer), to mention a prece- 126 dent; but he was so satisfied with what the hon. and learned Gentleman (Mr. M. Chambers) had just stated, that he did not think that necessary, and he would not then press his Motion.
§ On Question, "That the Motion be withdrawn,"
I was in the expectation, Sir, after so much had been said on a question of such delicacy and importance, that we should have had the assistance which I think is usually given to the House by the Attorney General. Perhaps that hon. and learned Gentleman will have the kindness to state to us distinctly his view of the law on this matter. I certainly was waiting for that explanation, and I yet trust that we shall be favoured with it. I will only now express with very great deference and humility, and certainly with reservation and due submission to whatever may be told us upon information coming from the highest quarters, the view which I am myself disposed to take, as far as I can understand the matter. I was not able altogether to follow the argument of my hon. and learned Friend who spoke last. A verbal question may arise upon the precise expression used by the right hon. Gentleman (the Home Secretary) when he said that he was invited to do an illegal act. I can quite understand that an argument may be made that there is no statute prohibiting the right hon. Gentleman from taking the course which has been pointed out by my hon. and learned Friend, and that consequently he would not be offending against the statute or doing an illegal act. Whether that be so or not, I am unable to say; but, as I gather the state of the case, it is something like this:—The practice in previous periods, as has been lucidly shown by my hon. and learned Friend who spoke last (Mr. Montagu Chambers), was that when there was a suspicion that a conviction come to was not a good and valid conviction, the Crown, as being generally responsible for the administration of justice, was in the habit from time to time of referring to the Judges for their opinion on the point. Now, if nothing further had taken place, I could understand that the appeal made to the right hon. Gentleman and the Government would be a very strong one. But is it not the fact that in recent times we have passed a statute which, in lieu of leaving this matter to the general discretion of the Crown, 127 has distinctly pointed out and provided the means of bringing it to issue? That is to say, it is now provided that, the point being raised, it shall be considered by the Judges who tried the case; that the judgment of those Judges shall be final; that they have the power of reserving the point if they think fit, but if they do not reserve it for the Court above, their judgment is final. Consequently, I am bound to say it appears to me that the verbal question which may be raised upon the expression used by the Secretary of State would be a verbal question only, and that the right hon. Gentleman is entitled, if that be the true state of the facts, to say that the statute having provided a distinct and specific means of carrying to issue those questions which were formerly dealt with by Prerogative, it is no longer in the spirit of the statute—it is no longer acting in that spirit in which all the proceedings of the Executive ought to be conducted—if the Crown, overlooking, or at any rate passing by, the provisions of the statute, were now to fall back upon that other mode of procedure of which it is quite evident that the statute was intended to get rid. At all events, I think it would certainly be requisite for those who take the responsibility of pressing the Government in this matter, to show that since the statute passed the old and former method of proceeding has nevertheless still continued in use. If it has not so continued in use, it seems to me—I confess upon what may be an insufficient and unauthoritative view of the case—that there would be a disregard of the spirit and intention of the Legislature in now falling back upon the former method. I hope, Sir, we shall have the advantage of hearing from the Attorney General the precise condition of the law on a matter of this great delicacy and importance. The House always, justly, I think, looks for that assistance, and is always disposed to attach the greatest weight to the declarations of the Law Officers of the Crown on questions of this difficulty with respect to which we stand in need of information.
THE ATTORNEY GENERAL
Sir, I believe that the right hon. Gentleman who has just sat down has stated with perfect accuracy that there was a period, before the recent Statute passed, when the Crown was in the habit of consulting the Judges upon points of law raised before one of the Judges, who gave advice upon written statements sent to each of 128 those learned Judges, on which they might express their opinions. And I think I am right in saying that in those cases it was the universal practice of the Judges to give their opinions, not upon the arguments of counsel, but upon private consultation among themselves with reference to the facts and circumstances brought before them. But since then, as is well known, a power has been given to a Judge, if he thinks that a question raised before him is worthy of consideration, to have that question reserved for the solemn argument and decision of the Judges in a Court of Law. Now, in this particular case—although I will avoid, as far as I possibly can, saying one word about the facts connected with the Fenians—the question that was raised at the trial was argued, and at considerable length—not, as generally happens, in a criminal court, before one Judge only, but before two Judges, who gave it their consideration, and made up their minds, according to the view which they then took, that there was nothing in the objection that was raised. But, on the application of the learned counsel for the prisoners, Mr. Justice Blackburn, the presiding Judge, said that he would re-consider the question; and if, upon further consideration, he should think there was anything at all in the objection, he would certainly reserve it for the learned Judges in the Court above. Since then it is well known that Mr. Justice Blackburn, having had a consultation with Mr. Justice Mellor, and also, as we learn, having consulted the other learned Judges, has come to the conclusion that it would not be right for him to suggest that there is any question of difficulty which ought to be reserved for the consideration of the learned Judges. Acting, then, as I am sure the House will feel that he does act, under a sense of the responsibility which attaches to him as a Judge, in expressing his opinion that there is nothing in the point reserved, and not acting on the mere responsibility of a counsel who says he can raise an ingenious argument upon it, Mr. Justice Blackburn has determined that, according to his judgment, here is not in this case a legal question which ought to be reserved, and therefore he has declined to suggest that it should be sent before the Judges in a Court of Law. So far as I know, since the responsibility has thus been thrown on the Judges of deciding whether a point should or should not be 129 reserved, the old system, to which my hon. and learned Friend opposite has referred, has been practically abolished; and taking into consideration the solemn sense of responsibility under which the learned Judges who presided on the Special Commission acted, in coming to the conclusion that there was no question which they deemed it to be their duty to reserve for argument, I think we ought to receive the determination at which they have arrived as being the proper one under the circumstances of the case.
§ Motion, by leave, withdrawn.