HC Deb 09 April 1869 vol 195 cc497-508

said, he rose to call the attention of the House to the proceedings in the criminal trials of "The Queen against Baird," "The Queen against M'Kenna," and "The Queen against Sheridan and Others," in the course of which, on a challenge to the array, the jury panel was quashed, on the ground, among others, that the said panel had been partially and improperly arrayed by the sheriff of said county; and to ask questions in reference thereto of the Attorney General for Ireland. He had already postponed this matter at the request of the Attorney General for Ireland, who wished to be further informed on the subject, and he hoped that the right hon. Gentleman had now made himself master of it, and would be able to answer his Question. The subject was one of great importance to the administration of justice in Ireland, especially in the province of Ulster, where he was sorry to say strong party and religious feelings prevailed. At the last Assizes for Monaghan there were several trials arising out of the disturbances which took place on the 13th of July. Among these trials there were those of an Orangeman named Baird, his son, and another party, who were charged with the murder of a man named Hughes, who was a Roman Catholic. Indictments were also found against a large number of Roman Catholics and against seventeen or eighteen Protestants, for riots and assaults arising out of the same transactions that led to the murder; and there were also informations taken against a number of persons for violating the Party Processions Act, but these were not brought to trial. Also, at the same Assizes, a man named M'Kenna, a Roman Catholic, was tried for the murder, in November last, of one Clark, a Protestant; but this occurred in a hotel, and not during a riot. Now, he had to inform the House that, in the year 1866, also at these Assizes of Monaghan, an Orangeman named Gray, who bore rather a notorious character in Ulster, was tried for the murder of a Catholic named Shevlin, who was shot at the election of 1865, and four witnesses swore that it was Gray who fired the fatal shot. But he was acquitted. He was defended by an able and learned Gentleman, who was then an eminent Member of this House—the present Chief Justice of the Queen's Bench in Ireland. On Gray's trial not one of the twelve jurymen was a Boman Catholic. A Mr. Crawford was foreman of the jury. Some strong articles were written on Gray's acquittal in the English journals, and the subject was brought under discussion in that House, the present Attorney General for Ireland declaring that Shevlin's life was wantonly taken without provocation, and that his death was as clear a murder as ever was committed. The panel from which the jury was taken by which Gray was acquitted consisted of 300, a larger number than was ever before known in Monaghan. But among them there were only sixty-seven Boman Catholics. The population of Monaghan consisted of 90,000 Roman Catholics, and 30,000 of all other denominations, or three Roman Catholics to one Protestant. The panel was four Protestants to one Roman Catholic. The manipulation of that jury, and of the jury which tried the case in the last Assizes, was so self-evident, that he thought the House would agree with him that the jury system in Ireland required amendment. Out of the first forty-eight names on the panel that tried Gray, who was an Orangeman, only two were Roman Catholics. Out of the first sixty-nine names only three were Roman Catholics; but then to show the liberality of the sheriff, in the next forty-eight names there were sixteen Roman Catholics. It was, of course, intended, and was sure to be the case, that the jury who tried Gray were taken from the first forty-eight names. The sheriff of this year took a most active part in the election at which Shevlin lost his life, though, in 1838, he had been dismissed from the magistracy on account of partiality. At the trial a person of the name of Mitchell was sub-sheriff. Now it was worth stating that up to 1862 or 1863 Orange-ism was not known in Monaghan, and the people lived together on the best of terms; but at that period the Rev. Dr. Bayley was appointed to the rectory of Monaghan, and an Orange lodge was established, of which he believed Dr. Bayley was the chaplain. On the 1st of July last year an Orange flag was hoisted on the steeple of the church—which he (Mr. Downing) thought was a desecration of the House of God—and this flag remained flying till the 12th. The 12th was a Sunday, but on the 13th, which was a fair day, a band of Orangemen marched into the town with drums and banners, and it was quite clear that a collision was inevitable. A collision did take place. The Orangemen entered the Orange Hall and Baird's house, where they had arms, and commenced firing on the crowd, and Hughes, an innocent man who was standing in the street, was shot. After that an assault was made by some of the Roman Catholic party on a man named Wilson. For that assault seven persons were indicted, and among them four women. A large number of Catholics were indicted for riot, and seventeen Orangemen were indicted, and were to be tried at the same Assizes, at which Judges Lawson and Morris presided, for whom he entertained personal esteem. The seven Ca- tholics who were tried before Mr. Justice Lawson were convicted of an assault, not of a riot. One of them was sentenced to two years' imprisonment with hard labour. Two others were sentenced to eighteen months' imprisonment, and the four women were sentenced to twelve months' imprisonment with hard labour. In the other Court two persons were tried for the murder of Hughes, and they were acquitted. There were twelve Orangemen, and not a single Roman Catholic on that jury. On that trial a policeman named Macdonald stated that he did not try to break into the house, because he might have been shot himself, but he went to the back of Baird's house and asked them to stop the firing. He did not go into the house to see who was firing, for soon after the man was shot the firing ceased. At the opening of the Assizes the Judge charged the grand jury, and stated, that he could not understand how, in a proclaimed district, men carried arms who had no licenses, and that the administration of justice in that way was defective. M'Kenna was put on his trial the next day. He was defended by two very able barristers. Mr. Butt put in a challenge to the array on five issues. Four of them were traversed by the Crown. One was admitted—that the sub-sheriff was an Orangeman. The issue that went to the jury was this—Did the sheriff, in contravention of his duty, to which he was sworn, act as a partizan? The jury found that he did, and the consequence was that the panel was quashed. That was the conduct of the sheriff of Monaghan, and he would state to the House the consequences arising from that finding. In charging the jury the Judge said that it was no matter whether the sheriff or sub-sheriff was an Orangeman, for that was no disqualification. In point of law that might be correct, but he recollected many magistrates having been removed from the Commission of the Peace because they had declared themselves Repealers. When Mr. Roche, the father of Lord Fermoy, was appointed sheriff of Cork, an objection was raised in the Dublin Mail that he was a Repealer, in consequence of which the Lord Lieutenant wrote to that gentleman inquiring if he was. Mr. Roche, as every high-minded man, declined giving a reply to the question, although he was no Repealer, and the consequence was that he was not appointed to the office. he did not think the Government ought to allow an Orangeman to fill the high and important office of sheriff, because to be an Orangeman was to be a partizan. On the trial of M'Kenna's case the panel consisted of 250 persons. In the jurors' book, there were 1,200 names in round numbers, 400 of them being Roman Catholics, showing a proportion of two Protestants to one Catholic. Out of the first seventy names on the panel there were only seven Catholics, and of these three were ineligible; so that there were only four Catholics left. Such was the state of the panel when important cases involving party and religious considerations were about to be tried. Although there were sixty magistrates in the county of Monaghan, not one of them was put on the panel until a demand was made by the attorney for the prisoners, and then one was placed on the panel. He was aware that the sheriff did not take an active part in framing the panel, but he was responsible to the Crown and was sworn to act fairly between party and party. In 1864 Mr. Riley, who was a Catholic, had the arrangement of the panel, and he returned 200 names, forty-eight of them being-Catholics, and 152 Protestants. In 1865, Mr. Mitchell, the sub-sheriff at the last Assizes, admitted that he took the panel of 1864, and altered it, for he appointed 200, of whom forty-one were Catholics and 159 Protestants. But it was not so much the small proportion of Catholics as the position assigned to them on the list, which made it almost impossible for them to serve on the jury; for the prisoner could only challenge twenty peremptorily, and in the first sixty-seven names, there were only three Catholics. In 1867, the same principle was carried out. When M'Kenna was placed in the dock the finding to which he (Mr. Downing) had referred took place. On the next day, when he was again placed in the dock, Mr. Justice Morris stated that the panel had been quashed. That panel was admitted to be one affecting every case, and the consequence was that 100 Catholics and thirteen Protestants were set at liberty on entering into their own recognizances, and yet the jury taken from that panel convicted the seven Catholics who were now undergoing their sentences. That was all owing to the conduct of the sheriff. And one of the questions he would ask the Attorney General for Ireland was, whether that sheriff still retained his office; and, if so, whether it was the intention of the Lord Lieutenant to supersede him. It was not surprising when such proceedings took place that a want of confidence was felt in the administration of the law in Ireland, and that men occasionally took the law into their own hands. At the late trials, on the 5th of March, Mr. Riley, who defended the prisoners, wrote to the high sheriff, asking him to ensure a fair proportion of the prisoners' co-religionists on the panel. The reply of the high sheriff was that he intended making no alteration in the panel, except by adding some fifty jurors to the long panel, thus making it 250—of those forty-nine were Protestants. A similar letter was written by Mr. Riley to the sub-sheriff, who added fifty names to the panel, but forty-nine of them were Protestants, and only one was a Catholic, thus aggravating the case to a considerable extent. Mr. Riley then wrote to the Lord Lieutenant, who replied that it was a matter in which he could not interfere. The result was that the trial proceeded, with the consequences which he had described. The case reminded one of the declaration of Lord Denman—a name that will be ever revered, not so much from his professional knowledge, great as it was, as for his high sense of justice and unbending independence—in relation to the O'Connell trial. He feared that, to use his words, trial by jury in Monaghan had been nothing but a mockery, a delusion, and a snare. the jurors' book was made out and returned by parochial constables who were appointed by grand juries. In the county of Cork, out of thirty collectors, not one was a Roman Catholic. Several hon. Members had on former occasions attempted to induce Parliament to alter the present mode of selecting juries in Ireland, and he wished to ask the Attorney General whether he intended to bring in a Bill for this purpose? The other question he had to ask was, whether the jury panel having been quashed for partiality, it was intended by the Secretary for Ireland to recommend a free pardon to the seven persons who were convicted before Mr. Justice Lawson and sentenced to many months' imprisonment? He should be glad to know, moreover, whether the Attorney General would so alter the present system as that jurymen should be selected in criminal as well as in civil cases by ballot? The sub-sheriff for Monaghan admitted that he had been an Orangeman for many years, and that he knew a great many Orangemen. He stated, however, that he could not tell how many Orangemen were on the panel—whether there were as few as ten or as many as 100. The high sheriff on his part denied that he was an Orangeman, but admitted that he did subscribe a few shillings to give the Orangemen something to drink—a very unfortunate thing for a high sheriff to do. He held in his hand a document under the hand of the clerk at petty sessions certifying against twelve Orangemen, but no step whatever had been taken to bring them to trial. The people of Ireland would watch with great anxiety the answer of the hon. and learned Gentleman to the appeal now made to him, and he hoped that answer would be such as to give satisfaction.


said, it was only justice to the Rev. Mr. Bayley to state that he had been curate for ten years in the parish next his own, and that during that time no Orange flags had ever floated from his church. Mr. Bayley, on the contrary, had always discouraged any displays of this kind, and had incurred the displeasure of some of his parishioners in consequence.


said, this was not a question of putting people on the jury panel for their religion, but for their fitness. He protested against any comparison between the Orangemen and the Repealers of thirty or forty years ago. The latter were rebels, but the Orangemen were loyal men, who had combined, and would combine, together to support the Queen and the Constitution under which they lived. The sub-sheriff said he did not know how many Orangemen were on the panel, and that was the best proof of his impartiality. Orangemen, being loyal men, had as much right to be upon the jury panel as any other persons.


(Mr. SULLIVAN) said, that the matter to which his attention had been called was one of the gravest importance. It was only right to state that he was not responsible for the delay in bringing this matter before the House. The hon. Member (Mr. Downing) gave notice of his intention to ask certain Questions as to what occurred upon a trial at which he (the Attorney General for Ireland) was not present, and he had accordingly asked that the matter should be postponed in order to enable him to become acquainted with what had occurred at Monaghan. In Ireland, where confidence in the administration of the law was everything, it was most important that the administration of trial by jury should be above suspicion. It appeared that two men, Baird and M'Kenna, were to be tried at the last Assizes, and if the charges against them were true the lives of both were in jeopardy. Baird was charged with shooting a man named Hughes in the street, by firing from a window, and M'Kenna was charged with shooting a man in a house. Both cases arose out of circumstances in reference to which the political and religious passions of the people were strongly excited. Baird was acquitted, and having regard to various circumstances which the jury were bound to weigh, it was impossible to find fault with the verdict. M'Kenna was then put upon his trial, and the array was challenged on his behalf. It was the greatest misfortune which could befal the administration of the law that religious considerations should enter into the selection of juries—but the charge against the sheriff was that he had designedly inserted the names of Protestants upon the panel, intending to prejudice the trial of M'Kenna—and the counsel for the Crown could take no other course but to consent to try that issue. The mode of appointing triers was peculiar, and perhaps not over satisfactory, but it had been transmitted from very ancient times. The two first persons who answered to their names were sworn, and in this case it was certainly a remarkable circumstance that the persons appointed to try such a serious issue were both Roman Catholics. They were, however, as he understood, respectable men, and great weight must be attached in law to their finding, which was adverse to the sheriff. It appeared that there were 1,215 names upon the jurors' book, of which, forming the best judgment that his information enabled him to do, 423 were Roman Catholics. It certainly was a great misfortune that out of 250 names returned to form the panel only twenty were from the Roman Catholic barony of Farney, and these were placed at the end of the panel; and no doubt it was a circumstance having great weight with the triers. The explanation of the sheriff was that the barony of Farney being very remote from the town of Monaghan, it would have been inconvenient for jurors to attend, and he swore that their names were placed upon the list without any intention of prejudicing M'Kenna. In a case, however, like that of the last Assizes, where the list for trial was one of the heaviest that had ever been known in Monaghan, the convenience of jurors was not, in his opinion, a matter for the sheriff to consider. When the lives of two men were at stake he was bound to get the best panel he could procure. Personally little blame could be attached to Mr. Coote, for he swore that he had neither hand, act, nor part in the preparation of the list, but, legally, he must of course be held responsible for the acts of his subordinate; it was not for him (Mr. Sullivan) to determine what steps should be taken. "But what occurred at the last Assizes necessarily formed a great obstruction to the law, and, speaking as the public prosecutor in Ireland, in virtue of his office as Attorney General, he was bound to say that when M'Kenna came up for trial again next Assizes it was impossible that the state of things which existed at the last trial in the town of Monaghan could be suffered to continue. Without saying whether the sheriff was wrong or whether he was right, when confidence had once been shaken in the array it would present a serious obstacle to the due administration of justice, if, on a subsequent occasion, the people of the county saw the panel again prepared by the same persons that had been found guilty of framing it so as to press with harshness against a particular prisoner. As regarded the observations said to have been delivered by Mr. Justice Morris, who tried the case, he had inquired particularly into them, and concurred in the propriety of the warning which he had addressed to the triers. It would be, of course, for the Lord Lieutenant to say with respect to the rioters how in his opinion they ought to be dealt with, but he felt persuaded that Mr. Justice Lawson would never have passed upon them a sentence disproportionate to the facts adduced in evidence. The present jury system was universally acknowledged to be unsatisfactory, and he had found it so in practice. With respect to the proposal to select jurors by ballot, an admirable Amendment was to be found in the Business Paper of the House to the Jurors Bill introduced by the hon. and gallant Member for Longford (Mr. O'Reilly). But it was one thing to select a general panel for the Assize by ballot, and it was another to select a jury to try a particular case in that manner. However advantageous the adoption of the former system might be, the latter would never be tolerated for a moment, because it would take away from the prisoner the safeguard which he now possessed in the right of challenging, without assigning any reason, a certain number of jurymen. He could not hold out to his hon. Friend any hope that a Bill would be brought in during the present Session; but no doubt the condition of our jury system would engage the attention of Her Majesty's Government as soon as the state of Public Business afforded a convenient opportunity. With respect to the complaint of his hon. Friend about the party procession he could give no information, as he knew nothing about the matter, which had not occurred during his period of Office, but he thought it required explanation. he trusted that his hon. Friend would be satisfied with the answers he had given.


said, that in answer to the question whether the fact of a man's belonging to an Orange society was not sufficient to disqualify him from serving as a juror, he wished to state that an Act of Parliament had been passed which suppressed the original Orange Society.


You will find that is not so.


said, it was on account of its signs and passwords and oaths that the original Orange Society was suppressed; and a case was laid before ex-Chancellor Napier, and new rules were formed, signs and passwords and oaths were abolished, and a new society was constituted so as to evade the law, and there the fact of being an Orangeman was not a legal disqualification. He believed that in this particular case the evidence of the sub-sheriff was not accepted because it was not consistent, he having stated at one time that he had placed the jurymen from the barony of Farney last on the panel because they would have a great distance to come, and in another that he had taken the jurors indifferently and put them through the panel, in which case of course the names of the jurors from Farney would have been found mixed with the others. The subject was, however, one of some importance as affecting the administration of justice in Ireland. Irish Members could not, unfortunately, but acknowledge that the law was not so much respected in their country as they would wish to see it, and though the population generally were not given to crime, there was too frequently a tendency to protect the criminal. This feeling of antagonism to the law arose mainly from the long years in which the law was against the people of Ireland, and when it represented a tyrannical power which was always against and never for the people. This feeling, which was gradually wearing away, was perpetuated by such cases as this, which, in the minds of a large number of the people, gave rise to the suspicion that partiality had been exercised. He fully concurred in the general principle that a man's religion ought not to be considered when calling upon him to act as a juryman; but it must be remembered that, in cases where party or religious prejudices were enlisted, the due administration of justice could not be secured without adopting what would otherwise appear to be an exceptional course. Even in Wales popular feeling ran so strong, at one time, that trial by jury was regarded as a farce; it being generally believed that no jury in that country would convict a Welshman, while a Welshman on the border, and with a border jury, would have stood very little chance indeed. In cases where anything like a selection of a jury on party grounds was suspected all respect for the law administered by the court was gone. He had before pointed out that the Crown could take measures to have the venue changed from a place in which party spirit was rife. Under the direction of the present Chief Baron Pigott, juries composed one-half of Roman Catholics and one-half of Protestants had been empannelled in party cases, and, he believed, the result was that satisfactory verdicts were in every case returned. He hoped that some Act would be passed to take away the unlimited discretion to form the panel that rested in the sheriff and still more in the sub-sheriff, who was very often a small local official who mixed himself up with party politics. He was glad to hear that the plan, which he had recommended on a former occasion, of forming the panel in criminal cases by ballot, reserving the right of challenge at the time of the trial to the Crown and the prisoner, was under the consideration of his right hon. Friend the Attorney General for Ireland.