§ SIR COLMAN O'LOGHLENsaid, he rose to call attention to the granting of Writs of Error in criminal cases, and to move a Resolution on the subject. It had lately been asserted by a Law Officer of the down in Ireland that writs of error were not a matter of right but a matter of grace. In the case of Mr. Pigott, the proprietor of the Irishman newspaper, who was sentenced to twelve months' imprisonment for the insertion of a seditious libel in that journal, a petition signed by Counsel for a writ of error was presented on the 21st of April. On the 13th of May—and he complained of this delay—Sir Thomas Larcom replied that, in the opinion of the Attorney General, no grounds existed for granting the writ. As it was stated that the reason for this refusal was because no grounds of error had been assigned in the original petition, another petition was presented on May 28, and on June 5, the issue of the writ was again refused. A petition was thereupon presented on behalf of Mr. Pigott to the Lord Chancellor, and the case was argued before him, but his Lordship decided that he had no jurisdiction to interfere. He did not impute blame to the Attorney General, who had acted, he believed, bonâ fide, though, as he thought, in an unconstitutional manner, in erroneously refusing to grant a writ of error when it was applied for on behalf of Mr. Pigott; hut as the matter was an important one, he felt it his duty to bring it before Parliament. The question whether writs of error were a matter of right or of favour did not now for the first time come before Parliament. In the reign of Charles I. Sir Thomas Armstrong was indicted for high treason, and outlawed; he afterwards 656 surrendered and was executed-the Attorney General refusing a writ of error. In 1689, on the petition of his widow and daughters, his case was brought before the House of Commons, which appointed a Committee of thirty-five Members to examine into the circumstances of the case, and also to ascertain and state the law as to writs of error in criminal cases. That Committee reported that the refusal of the writ was altogether unlawful, and further that—
A writ of error for the reversal of judgment in treason or felony is the right of the subject, and ought to be granted at his desire, and is not an act of grace or favour which may be denied or granted at pleasure.The House confirmed the Report, and expelled the Attorney General by a majority of 131 against 71. This showed with what jealousy Parliament looked into the matter immediately after the Revolution. Again, in 1704, in the reign of Anne, where, in the Aylesbury case, actions were brought against the returning officers for disallowing votes, a writ of error was refused by the Attorney General, and the case came before the House of Lords, who took the opinion of the Judges, with Chief Justice Holt at their head, on the point, and, after getting their opinion, the Lords resolved—That a writ of error is not a writ of grace, but of right, and ought not to be denied to the subject when duly applied for—though at the request of either House of Parliament—the denial thereof being an obstruction of justice, and contrary to Magna Charta.Following this up, the Lords presented an Address to Her Majesty praying her to direct a writ of error to issue, and in that Address they say—Whether writs of error ought to be granted, and what ought to be done upon writs of error afterwards, are very different things. The only matter under your Majesty's consideration is, whether in right and justice the Petitioners are not entitled to have writs of error granted.We are sure that the House of Commons in 1689 was of opinion that a writ of error, even in cases of felony and treason, is the right of the subject, and ought to be granted at his desire, and is not an act of grace and favour which may be denied or granted at pleasure. So that, as far as the opinion of the House of Commons ought to have weight in such a question, whatever the present opinion of the House is, they then thought a writ of error was the right of the subject in capital cases, where only it had been at any time doubted of.But that it is a writ of right in all other cases has been affirmed in the law books, is verified by the constant practice, and is the opinion of all your present Judges except Mr. Baron Price and Mr. Baron Smith.657 And the Lords then go on to argue in the Strongest manner the justice and expediency of this view of the law. After this Address was presented to Her Majesty, the Judges were again summoned, and on their opinion being laid before Her Majesty, she sent ft Message to the Lords that she would comply with their request; but the Parliament having been very soon after dissolved, all the proceedings fell to the ground. In modern times the question as to the rights of a writ of error came before Lord Chancellor Hart. In 1828, the Attorney General of Ireland, refused to grant his fiat for a writ of error in the case of Radford Hoe, who had been convicted of perjury and forgery, and the cursitor refused to issue it without his fiat, whereupon an application was made to Lord Chancellor Hart, who held that the cursitor was bound to issue the writ. Under those circumstances, then, he thought it was a very unconstitutional act for an Attorney General—especially in Ireland—to refuse to grant a writ of error. He was aware that the dicta of some modern English Judges might be quoted in favour of the course taken by the Attorney General for Ireland; but it had been held over and over again by the earlier English Judges that the writ of error was a right, and not a matter of grace. Two modern cases which came before Lord Campbell "Ex parte Newton," in 1855, and "Ex parte Lee," in 1858, will be relied upon. In both the Court decided it had no jurisdiction to interfere in the matter—that the Attorney General should act on his own responsibility—and that if the object for which the writ of error was applied for was merely to raise an objection which did not affect the merits of the case, then he should refuse to grant his fiat—the right to grant the writ of error being one of the Prerogatives of the Crown. It was a monstrous doctrine that the Attorney General—the Prosecutor—was to decide that the ground on which a writ of error was applied for had nothing to do with the merits of a case, and though this doctrine had the sanction of Lord Campbell, he would venture to say that a more monstrous doctrine was never laid down even in the worst times of Royal Prerogative. He had felt it his bounden duty to bring forward this question, as it was decided by a solemn Resolution of this House in the reign of William III. that the issuing of a writ of error was a matter of right and not of grace. This doctrine, 658 which was endorsed by ten out of twelve Judges in the reign of Queen Anne, and by the House of Lords at that period, had been attempted to be overridden by modern English Judges who had not studied the Constitutional Law so well as they had studied the Common Law; but he hoped this House would not sanction such an attempt. The whole of our law relating to appeals in criminal cases was a disgrace to the country. England was the only country in the world without a Court of Appeal on questions of fact in criminal cases. The only appeal was to the Home Secretary, which was most unsatisfactory. It was true that an appeal might be made on a point of law, but such an appeal was only allowed to the Court of Criminal appeal by consent of the Judge who tried the case or else by writ of error; and it was now laid down that the latter method could not be resorted to except by consent of the Attorney General. The Attorney General for Ireland had acted against precedent, for in cases of misdemeanour especially the writ of error was always felt to be a matter of right, and since the decision of Lord Chancellor Hart it had been so considered in Ireland. If, however, the Attorney General refused a writ, Parliament was the only power that could control him. He would not go into the question whether Mr. Pigott was justly convicted or not, but the fact remained that the further investigation of the case had been stopped without any appeal, because the Attorney General, who was the prosecutor, had refused the writ of error in defiance of the Resolutions of Parliament and of the law laid down by the Judges. In conclusion he would beg to move the Resolution of which he had given notice.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "this House doth agree with the Resolution passed by this House on the 19th day of November 1689, and doth re-affirm that a Writ of Error for the reversal of a Judgment in Misdemeanor, Felony, or Treason is the right of the subject, and ought to be granted at his desire, and is not an act of Grace or Favour which may be denied or granted at Pleasure,"—(Sir Colman O'Loghlen,)
—instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. WARREN)I think it would have been more fair and becoming on the part of the hon. and learned Ba- 659 ronet if he had given in the Notice which he had placed on the Paper some intimation of an intention to impeach my conduct on the present occasion. [Sir COLMAN O'LOGHLEN denied that he had done so.] My conduct has certainly been impeached, for the hon. and learned Baronet has asserted that the Attorney General has been guilty of unreasonable delay, and violated the constitutional rule applicable to the granting of writs of error. The Resolution, however, contained nothing but an allegation which I am prepared to prove utterly unfounded. I confess, however, I cannot sufficiently admire the ingenuity and bustling importunity with which, during the present Session, the hon. and learned Member for Clare had sought opportunities to provoke the House to interfere in matters relating to the Queen and her Royal Prerogative. On reference to the Papers of the House, I find that the Prerogative of the Queen in connection with the peerage of Ireland was the subject of a Bill introduced by the hon. and learned Baronet; but that measure was brought to an untimely end by the interference of the right hon. Gentleman the Secretary of State for the Home Department. I also find that a Motion of the hon. and learned Baronet stood on the Paper proposing that the House should interfere as to the Queen's Prerogative in connection with the title of honour called knighthood—an interference sought by none, and repudiated by many of those on whom the hon. and learned Baronet was desirous of thrusting the honour. Again, the hon. and learned Baronet had during the present Session placed on the table Notices of Motions connected with the residence of the Sovereign, and with regard to the declarations which the Queen, as the Protestant Sovereign of a Protestant kingdom, was required to make. ["Question!"] I am speaking to the question, as the present was one of a series of attacks upon the Prerogative of the Crown. The hon. and learned Baronet had also introduced a Motion proposing that the House should interfere with the Queen in a matter connected with a charitable institution. That Motion met the ignominious defeat which in my opinion it richly deserved. And now the hon. and learned Baronet has made a direct attack on the Royal Prerogative; for I am in a position to satisfy the House that the granting of writs of error is strictly a matter of Prerogative. The hon. and learned Baronet had com- 660 menced by saying that the present practice was of modern date. But when the subject was discussed recently, the Lord Chancellor of Ireland remarked that it bad been thoroughly investigated, and shown to date back at least as far as the time of the Plantagenets. I find it distinctly laid down in two cases—known as "Crawle's case" and "The Rioters' case"—decided in 1683 and 1684, that in all cases, whether of treason, felony, or misdemeanour, the granting of a fiat for a writ of error was a matter of Royal Prerogative, and that the assent of the Sovereign must be obtained. As to the case which occurred in the reign of Queen Anne, ten out of twelve Judges held that the writ of error should be granted as a matter of right in cases of misdemeanour; and that judgment was afterwards explained in the case of the notorious Wilkes by Lord Mansfield, who laid it down that even in cases of misdemeanour the writ did not issue as a matter of right unless sufficient probable grounds were shown. The universal practice in Ireland had been to apply to the Lord Lieutenant, and he, exercising the Royal Prerogative, referred the matter to the Attorney General. It was granted in cases of treason and felony merely as a matter of grace; in cases of misdemeanour, upon probable grounds of error being shown to the satisfaction of the Attorney General; and there was no authority to the contrary, except the case decided by Sir Anthony Hart, who was not a great criminal lawyer, but simply a master of Equity practice. What would have happened in the case of Mr. Pigott if the law had been otherwise? Under the recent Act of Parliament relating to misdemeanours, if a writ of error were issued the prisoner would be discharged on bail. Mr. Pigott could have got a writ of error as a matter of course, and been admitted to bail pending the appeal. Now, what advantage would the public have derived from his conviction if, after the lapse of perhaps two years, the sentence on this gentleman was ratified, and he was sent hack to prison? Bluckstone, who wrote after the Resolution referred to by the hon. and learned Baronet had been passed by the House of Commons, laid down the law thus—
Writs of error to reverse judgments in case of misdemeanours are not to be allowed of course but on sufficient probable cause shown to the Attorney General, and then they are understood to be grantable of common right, and a debito justitiae. But writs of error to reverse attainders 661 in capital cases are only allowed ex gratiâ, and not without express warrant under the King's sign manual, or at least by the consent of the Attorney General.That was the law recognized by Lord Campbell and the Judges of the Court of Queen's Bench. In Lee's case Lord Campbell said—It is part of the Prerogative of the Crown that a writ of error should not issue except with the concurrence of the Crown, testified by the fiat of the Attorney General.Chief Justice Jervis, and Lord Chancellor Brewster—who was unrivalled in his experience of criminal law—all held that that was the law. I apprehend, therefore, that this was the ancient and legal practice; and as I was bound by my oath to advise the Queen according to law, I advised the Lord Lieutenant, Her Majesty's deputy, that there were no probable grounds for granting a writ of error in Mr. Pigott's case. I desire now to say a few words as to my personal conduct. I was attending to my duties in the House of Commons when the application was presented to the Lord Lieutenant in Ireland; but in the course of two or three days the memorial was forwarded. It contained no allegation of any error in the record, nor had any point been raised at the trial by Mr. Heron, who conducted the defence of the prisoner. On receiving the application, I took time to consider, and to institute inquiries about the record. When I refused my sanction the parties immediately presented a petition to the Lord Chancellor of Ireland for a fiat to the writ of error, notwithstanding the opinion of the Attorney General. When the case came on for argument the Lord Chancellor, without hearing counsel for the Crown, expressed a strong opinion against the memorial, and upon my consent ordered the petition to be taken off the file of the Court of Chancery. When the second petition was presented to me as Attorney General, I, wishing to have my own opinion strengthened if I was right, corrected if I was wrong, directed that all the papers should be laid before the Counsel who had been engaged in the case, including with the Solicitor General and Law Adviser, Dr. Ball and Mr. Murphy, who were not Law Officers of the Crown. They met in consultation in my absence, and arrived at the unanimous opinion that there were no grounds whatever for a reversal of my decision in the case. Acting on the law as laid down by Lord Campbell and by the Chief Justice of the Common Pleas, I refused my sanction to the prosecution of a 662 writ of error in the matter. I may observe that when the matter came on to be heard before the Lord Chancellor, Mr. Butt did not state that the case was a clear one in his favour, but only that it was an arguable case. Every one knew that when a barrister only went the length of saying that his case was an "arguable" one he meant that, while something might be said in its favour, the law was against him. It was not on light grounds that I would refuse my sanction to a writ of error. Only that day the Judges of England in the case of a writ of error brought to the Hou3e of Lords on behalf of a man named Mulcahy, who had been convicted in Ireland of a political offence, gave their opinion against the first point raised in Pigott's memorial. For myself, I venture to say that, in acting as I have, I acted according to law, and in the conscientious discharge of my manifest duty. If the law was to be changed, it must be done, not by one branch of the Legislature, but by the two branches, and the consent of the Sovereign. I hope that in this, and all such cases, whoever may be the individual holding the office which I have now the honour to fill, the House of Commons will support him in maintaining the Prerogative of the Crown.
§ MR. O'BEIRNEsaid, he had heard with great astonishment the lecture delivered by the right hon. and learned Gentleman to the hon. and learned Member for Clare (Sir Colman O'Loghlen) as to his course of proceeding in that House, and the Notices he had from time to time placed upon its records. He (Mr. O'Beirne) was quite at a loss to understand by what right the hon. and learned Gentleman so presumed upon his position. The hon. and learned Baronet had gained for himself the respect and regard of both sides of the House, and was not open to such remarks as had been made. He (Mr. O'Beirne) did not intend to treat this subject as a matter of law merely. He was not disposed to follow his hon. and learned Friend, by whom the question had been introduced, into the pages of Blackstone or the long-past Resolutions of Parliament. He desired rather to look upon it in a popular point of view, and to auk the House to consider what the impressions of the public must be if such proceedings as those stated by his hon. and learned Friend were permitted. There could be no doubt that the policy of Parliament had always been to protect the accused against anything that could bear the character of injustice, and 663 it was that disposition that marked the action of the Legislature in the instances which had been cited by his learned Friend, and to which the right hon. Gentleman opposite had given no reply whatever. It was of great importance that our law, and, above all, our criminal law, should be administered with the most rigid impartiality; and it was also of great importance that it should be in its application placed above and beyond all suspicion. It was because the refusal to grant a writ of error, in such a case as that of Mr. Pigott, was calculated to cast some doubt upon the administration of that law, that the consideration of the Motion of his hon. and learned Friend was of such moment. Surely if a doubt existed this was a case where the legal discretion of the right hon. Gentleman might have been well used in favour of the prisoner—where the rules springing from principles and precedents might well be stretched a little if such were necessary. He (Mr. O'Beirne) was not anxious to impute unworthy or prejudiced motives to the right hon. Gentleman, whose duty must, or certainly ought to have been very distasteful to him. Nor did he desire to call in question the conduct of the prosecution, the evidence brought forward, or the result of the trial. What he desired to impress upon the House was this—that the right hon. Gentleman was the leader against the prisoner; that when the verdict was obtained he was the judge—the irresponsible judge—as to whether there should be an appeal by writ of error from that verdict, and that he refused to permit any such appeal. He (Mr. O'Beirne) now stated broadly, and he called upon the occupants of the opposite Bench to contradict him if he was mistaken, that this was the first instance in which a writ of error was refused in Ireland in the case of a misdemeanour. Was this so or not? if it was so, he must say he considered the right hon. Gentleman, in taking upon himself to refuse it, acted illegally and unconstitutionally, and his hon. and learned Friend (Sir Colman O'Loghlen) discharged a proper duty in bringing forward the subject for the consideration of this House. The noble Earl the Chief Secretary for Ireland would remember the celebrated case of Mr. O'Connell and his friends who were prosecuted some twenty years ago for an offence falling within the same category. Then a writ of error was brought and the conviction was annulled. There was no hesitation upon that occa- 664 sion to grant the writ. Since then the feeling of the Legislature had been shown by an Act which passed, providing that when a writ of error was brought the prisoner should be immediately admitted to bail. This was manifestly for the purpose of protecting him from any injustice, the bail being bound to deliver him up to the authorities to fulfil his sentence in case judgment in error pronounced against him. The right hon. Gentleman in his remarks relied upon the fact that no causes of error were stated by Mr. Pigott in his memorial. This he (Mr. O'Beirne) apprehended was a mistake, as on looking to the memorial he (Mr. O'Beirne) found six points of error very clearly, as he thought, stated and certified by the three learned counsel who had charge of the defence.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. WARREN)The hon. Member was under a misapprehension—the points of error alluded to were in the second memorial. He (the Attorney General) had alluded to the first memorial.
§ MR. O'BEIRNEIt seemed to him that the fact of the second memorial made the case only the stronger against the course adopted by the right hon. Gentleman, who, having refused the first application, had been by the second afforded a further opportunity to consider the matter, and then repeated his refusal. As to the circumstance to which he had also referred, and upon which he seemed to rely, that the Lord Chancellor of Ireland had, in giving his judgment, expressed a strong opinion on the case, he (Mr. O'Beirne) could not attach any importance to such a statement, as the point for his Lordship's decision manifestly was whether he had jurisdiction or not, and the judgment merely ruled that no such jurisdiction existed. The right hon. Gentleman also relied upon the fact that granting a writ of error was a Prerogative of the Crown, and that he was bound by his oath to advise Her Majesty according to law. Now, this seemed to be rather a singular statement. No doubt what the right hon. Gentleman meant to say was that he was bound to advise Her Majesty according to the law as he believed it to be. An oath of any other nature would be rather an unusual one. But there was nothing to satisfy the public or the House that because the right hon. Gentleman took this oath he was not open to mistakes. Certainly, it was now of the utmost moment that the House should express an opinion upon this question. If the law was to be 665 considered to justify the refusal to allow an appeal merely upon the irresponsible dictum of the Attorney General—himself probably, as in this case, the prosecutor, and answerable for the error committed—it should be at once openly so declared. Once it was clearly ascertained and known that a power so dangerous was authorized by law the Legislature would speedily adopt effective measures to protect Her Majesty's subjects from so great an injustice.
THE ATTORNEY GENERALexpressed his surprise that the hon. and learned Baronet should ask the House of Commons to pass a Resolution of a most extraordinary character merely because Resolutions of a similar nature had been passed in the reign of William III., laying down as a constitutional practice what the Courts of Law had ever since consistently denied. There were few things in the law which could not be contradicted by an ingenious advocate; but, as far as legal authorities could establish a principle, it had been laid down beyond all dispute and question that in cases of treason and felony the grant of a writ of error was not ex debilo justitiœ, but simply ex gratiâ by the Crown; and according to modern practice it was the duty—and by no means an agreeable one—of the Attorney General to determine whether there was such a case in the face of the petition, or appearing from the papers, as to induce him to say that the writ of error ought to issue. The duty of the Attorney General was twofold: to see that the writ was not withheld if proper and sufficient grounds were advanced, and on the other hand not to allow the writ to be issued upon insufficient or purely frivolous grounds. In the case of misdemeanour there was this distinction, as the law had been laid down, that the Law Officer ought not to advise the Crown to refuse the writ in any case where there was a probability that it might be successful. He did not propose to argue before the House of Commons a question which might be argued for days and days before the Court of Queen's Bench, and he was not about to canvass, as other Members appeared to have done, the motives which induced his right hon. Friend to return the answer which he gave; but dealing simply with the Motion put before the House, and advising them to the best of his ability upon the subject, he ventured to suggest that they should come to no such Resolution as that which was proposed. Its only effect could be to mis-state the law; and 666 even if such a statement were put forward it would have no binding effect upon the Judges or Courts of this country. The right hon. Baronet seemed to have misunderstood the question, which was not decided without long consideration, the learned counsel having asked for time to prepare, and, having investigated the authorities and found what he could, the judgment of the Court was still against him. That learned Judge, Lord Campbell, while clearly laying down the principle upon which alone the writ ought to issue, said that the decision of the Attorney General was in the nature of a judicial function, in which he had a duty to perform towards the people at large, and also towards the Court. If he decided improperly or corruptly, the Attorney General might be made responsible in Parliament and dismissed by the Crown, but the Court had no power to review his decision. Mr. Justice Erle, afterwards Chief Justice of the Common Pleas, and one of the most eminent Judges that in modern times adorned the Bench, after stating that it was the duty of the Attorney General in cases of misdemeanour to grant his fiat for a reasonable cause, said that it was equally his duty to refuse it if there was no reasonable cause, and generously added an expression of his own opinion in the following words:—
If the Attorney General wished for his private satisfaction to know how, supposing this Court had the supreme jurisdiction which he possesses, we should have exorcised the jurisdiction, I, for one, have no objection to say that I should have done as he did, and have refused the writ.If, then, modern authorities and ancient practice concurred, he wished to know upon what ground the House could now be asked to affirm a totally different principle? The practice and the reasons for it were to be found in books so old that probably their names were unfamiliar to Members of that House—in Fortescue, in Salkeld, Borroughs, and other writers and these all concurred in declaring that in cases of treason and felony the issue of a writ of error was ex gratiâ, and not ex debito justitiœ, and in misdemeanour only on probable cause shown, The Judges, moreover, had declared in the strongest manner that the recommendation rested with the Attorney General, and that they had no power to reverse the decision.
§ SIR COLMAN O'LOGHLENsaid, he would withdraw his Motion.
§ Amendment, by leave, withdrawn.