HC Deb 14 March 1870 vol 199 cc1877-919

said, he rose to call the attention of the House to the circumstances connected with the dismissal of Captain Coote from the Shrievalty of the county of Monaghan and the appointment of his successor. He would, in the first place, thank the right hon. Gentleman at the head of the Government for having afforded him so early an opportunity of bringing the case before the House. When he first gave notice of his intention to ask the Chief Secretary of State for Ireland for an explanation of the circumstances, he thought that he should be merely called upon by a simple recital of the facts of the case to show that a most unmerited insult had been cast upon Captain Coote by a measure so strong and unusual as his dismissal from the position of High Sheriff, in the arbitrary exercise of their power by the Irish Executive. But on looking into the matter, he found that another and far graver question was involved—the constitutional question with regard to the appointment of the present High Sheriff. The circumstances under which the dismissal of Captain Coote occurred were these—At the Spring-Assizes of last year a man named M'Kenna, a Roman Catholic, was indicted for the murder of Tames Clarke, a Protestant, in the course of a riot in the previous year. When the trial came on, the constitution of the jury panel was challenged by the counsel for the prisoner, on the ground that his case was prejudiced by the exclusion from it of Roman Catholics. It was worthy of note that on the panel thus challenged the first two who answered to their names were Roman Catholics, and that after the challenge had been made the panel was set aside. A correspondence thereupon ensued between the Chief Secretary for Ireland and Captain Coote, from which it appeared that the Lord Lieutenant exonerated Captain Coote from all blame in the matter, inasmuch as he had left the constitution of the panel to his deputy, but required that the deputy should be dismissed. With that request Captain Coote refused to comply, on the ground that the verdict was contrary to the evidence, and to the Judge's Charge, and was given under circumstances which deprived it of moral weight. After some further correspondence, Captain Coote was dismissed. Before entering further into the subject, however, he wished to invite attention to the correspondence which was carried on between the Chief Secretary and Captain Coote, which was published in the Irish newspapers last year, and the accuracy of which was, he believed, not challenged. In the course of the correspondence his right hon. Friend the Chief Secretary for Ireland stated that, having most carefully reviewed all the circumstances of the case, and deeming it to be the duty of the Government to insure strict impartiality in the administration of the law, the Lord Lieutenant had come to the conclusion that he could not permit Captain Coote to remain as Sheriff of the county any longer. One would have thought that the first duty of the Lord Lieutenant was to consult the presiding Judge and take his opinion on the subject. Now, Captain Coote had written to Judge Morris, who tried the case, stating that, as the Irish Executive had revoked his appointment, he should be glad, if the request were not singular, to have a copy of the Judge's notes of the trial. To this the Judge replied that it would be unusual for the Judge to furnish such notes except to the Lord Lieutenant, adding, however, that he thought it due to Captain Coote to say that he had not been applied to by the Executive in this matter. Now, to come to the occurrence of Captain Coote refusing to comply with the demand of the Lord Lieutenant. He did so, first, on the ground that the verdict was contrary to the evidence. It was asserted in the challenge that the High Sheriff was an Orangeman. This was proved to be false. Then it was asserted that the Orange Society had subscribed to the proceedings against M'Kenna. This proved to be false. It was also asserted that the Sheriff and sub-Sheriff, as Orangemen, had taken part in instituting those proceedings. This, of course, was also proved to be false. The sub-Sheriff swore that he had framed the panel impartially—that he did not distinguish between Protestants and Catholics. The only thing that remained in the challenge was that the Sheriff was an Orangeman, which the Judge ruled was no disqualification. He would leave the question of the alleged preponderance of Protestants on the panel to his hon. and gallant Friend the Member for Monaghan (Colonel Leslie), and would pass on to the consideration of the second part of Captain Coote's rejoinder, that the verdict was contrary to the Judge's Charge. The opinion of Judge Morris, as expressed in that Charge, was, that the proportion of Roman Catholics and Protestants on the panel was a fair one. He stated that the law recognized no distinctions among jurors on account of religious differences any more than it did on account of the colour of their hair, and that the late Chief Justice of the Queen's Bench had refused to allow such an inquiry. How, in the face of that Charge, the verdict could have been given that was given, and how the Executive could have acted upon it as they did, he (Viscount Crichton) must say passed his limited comprehension. The third ground assigned by Captain Coote for his refusal to dismiss his deputy was, that the verdict was given under circumstances that destroyed its moral weight. As to that, the only witness on whom the Crown had relied for the identification of the deceased as having walked in a procession—before the riot—was one of the triers, a man named M'Phillips, who swore to seeing him in the procession, and who was under cross-examination for two days. He (Viscount Crichton) had endeavoured to show that the evidence upon which the sub-Sheriff was found guilty of having improperly arranged the panel was insufficient. But supposing the reverse to be the case, was it right or just to dismiss the High Sheriff because his deputy held certain political opinions or acted in a certain manner? He had referred to the debates which were held in 1838, in Lord Mulgrave's time, upon a somewhat similar case which occurred when Mr. Stanley was Secretary for Ireland; and Lord Brougham, with Lord Lyndhurst, strongly condemned the action of the Government on that occasion, and said that the Government had no right to interfere in the matter. Then, how was Captain Coote's successor appointed? Where was he found? By whom was he returned? By what law, usage, or custom was Mr. Langdale made High Sheriff of the county of Monaghan? In Ireland the Sheriffs were originally chosen from the freeholders of counties, who selected twelve electors, and they chose three persons, one of whom re ceived the appointment. The Statute of Sheriffs of Edward II. vested the selection in the Chancellor, the Treasurer, the Barons, and the Justices. There was a unanimous decision by the twelve Judges in the reign of Henry VI. on a case in which the King, passing over the list of the Judges, appointed of his own will a Sheriff of Lincolnshire. This man refused to act, and the question arose what should be done. The decision was, that if none of the three persons originally named was appointed, the name of a suitable person ought to be obtained in the prescribed manner; and in his Commentary Lord Coke said this was a just exposition of the statute concerning the making of Sheriffs. Another case happened in the reign of Queen Elizabeth. The Judges were unable to meet to elect the Sheriffs for the ensuing year; the Queen took upon herself to choose them, and in almost every case she selected them out of the list sent in by the Judges in the preceding year. Blackstone remarked that this was the only authority for making exceptional appointments of Sheriffs. This being the law and the usage in England, how were they applicable to Ireland? In the reign of Henry VII. Poyning's Act was passed, making all the English statutes then in force applicable to Ireland; and these Acts, with one or two exceptions, continued in force. A book upon Sheriffs of the date of 1776 stated that the practice was the same in Ireland as in England. From 1776 to 1816, probably owing to the disturbed state of the kingdom, Sheriffs were occasionally appointed in an irregular manner. In 1816 the late Sir Robert Peel, then Mr. Peel, Chief Secretary for Ireland, restored the practice to its original form. Ten years later, in 1826, a Commission was appointed to inquire into the Courts of Justice in Ireland; and in an appendix to the 15th Report of the Commission there appeared a letter from the late Lord Chief Justice Wolf, stating what the practice was. He said that, upon the Summer Circuit, the senior Judge in each county secured the best information he could, collect as to the gentlemen qualified for the office of High Sheriff, and selected the three he thought most eligible for the office. In the following Michaelmas Term, on a day fixed for the purpose, the Chancellor met the Judges in the Chief Justice's chamber, and each Judge handed in his list; the qualifications of each gentleman named were discussed, names were transposed, struck out, and substituted; the fist, as settled, was laid before the Lord Lieutenant and published in the Dublin Gazette, and from that list the Lord Lieutenant made the final selection. This, he believed, was the practice at the present day. In a Charge delivered very recently by Chief Justice Whiteside, that high authority stated that the Sheriff was not a nominee of the Crown. He (Viscount Crichton) was at a loss, therefore, to understand how the Government could justify their recent interference, unless upon the principle of "exceptional legislation for Ireland." With respect to Mr. Langdale personally, not a word could be said against him. He was an English gentleman of an old Roman Catholic family, he had some property in Monaghan by right of his wife; but so far as he (Viscount Crichton) had been able to ascertain, he had never served on the grand jury; he was totally unacquainted with the great majority of the inhabitants of the county, and, indeed, it was said that up to the time of his appointment as High Sheriff, his face had never been seen in the county. Against Mr. Langdale's appointment in itself, however, he (Viscount Crichton) had nothing to urge had he been appointed in a proper manner. From Thom's Almanac for last year it appeared that Mr. Langdale's name was not on the Judges' list. The three names were those of Messrs. Coote, Brady, and Denison. He might be told that there were reasons why the two latter gentlemen could not serve; but in that case, the proper course would have been for the Executive to have applied to the Judges for a further list. He was informed that during the administration of the Duke of Abercorn it happened three or four times that the list sent in by the Judges was exhausted, and on each occasion a letter was sent from the Castle to the Lord Chief Justice requesting him to call the Judges together again in order to obtain fresh lists from them. If the lists returned, by the Judges were to be set aside at pleasure, and the nominees of the Government substituted for the gentlemen named by the Judges, their lists were merely waste paper, and the meeting of the Judges and the Lord Chancellor in Michaelmas Term was a solemn farce. In the prescribed mode of appointment there were two guarantees for the nomination of a suitable person—there was the security of the gentry of the county, whose representative, the High Sheriff, returned a list of names to the Judges, and there was the security of the Judges of the land, who named three gentlemen to the Lord Lieutenant; and the importance of maintaining these securities was evident when it was stated that the High Sheriff returned all the jurors in his county. Suppose a trial was pending in which the character and conduct of the Government, or some agent of the Government, was involved, or at which some person who had rendered himself obnoxious to the powers that be was to be arraigned, and the Government were anxious to secure a conviction or an acquittal, as the case might be, if the High Sheriff proved inflexible and he could be dismissed and another appointed in his place, the jury list could be tampered with in order to defeat the ends of justice. The action of the Government did not stop with the appointment of Mr. Langdale. When his term of office was drawing to a conclusion the Judges submitted three other names in the regular way; but when the result came out, it was found that Mr. Langdale, whose name was not upon the list, was re-appointed High Sheriff. Such a re-appointment was, to say the least of it, unusual; and the Government seemed to have taken that view of it in the case of the county of Sligo in 1868. In that case three names had been on the list of the preceding year—Messrs. Howley, Orme, and O'Connor. Mr. Howley, who had been appointed, re-signed from indisposition. Mr. Orme was appointed in his place by the Duke of Abercorn for the remainder of the year; at the end of that period lie expressed a wish to be re-elected, on the score of the expense he had gone to for equipages and liveries. But the present Government rightly, and in accordance with usage, refused to accede to his request. Why had they not acted upon the same rule in the county of Monaghan? He had no wish to attribute motives: but the fact that Mr. Orme was a Protestant, and that his successor was a Catholic, seemed significant. He should be told that precedents were to be found for overriding the gentry of the county and the authority of the Judges; he was quite aware of it; he believed there was no course, however unconstitutional and arbitrary for which precedents might not be found; but he did not think that precedents taken from the dark ages of English constitutional history, and from the days of the Stuarts, would find much favour in the present House of Commons. On seven different occasions Charles I. appointed Sheriffs of his own motion, passing over the Judges' list; but he appointed those who, in the House of Commons, were obnoxious to him, and of whom he wished to get rid, in order that he might the more easily obtain money without the consent of Parliament. That precedent, therefore, was not of much value. James II. also played the same game, and there was a correspondence between him and Lord Clarendon, in which the King requested the appointment of Sheriffs to be deferred until he gave instructions, and in which Lord Clarendon, referring to the receipt of a list, said he thought it strange, to say no more, that any two men should take upon them to give in a list for the whole kingdom, and so interfere with the nominations of the Judges, who were the proper persons to name gentlemen for these appointments. In the days of James II. the practice in Ireland was for the Lord Lieutenant to send to the King every year a list of the High Sheriffs. That list was submitted to some creature of his Majesty, who made remarks thereon. Then the list was again transmitted to the Lord Lieutenant, who answered the remarks; and it might be interesting to some hon. Members of the present House to know what comments were made on their ancestors. Against the name of Sir Michael Coote were the words— "Weak and Whiggish." The next was Sir Thomas Fortescue, and the note against his name was—"A creature of the Chancellor—but loyal." He had endeavoured to show that the evidence on which Captain Coote was dismissed from the Shrievalty was insufficient, and the appointment of his successor unconstitutional; but he had been actuated by no factious motives in bringing forward the Motion. He called attention to the subject because he believed injustice had been done to an individual, and a breach of the Constitution committed. He believed he was borne out in the view he had taken by Coke, Blackstone, Lyndhurst, and Brougham; and Junius, in one of his letters, advised that no invasion of the Constitution should be suffered to pass without the most determined resistance, for one precedent created another, and thus precedents went on accumulating until they constituted law. If the course adopted in the case he brought under notice were generally persevered in, it would have the effect of alienating the feelings of the gentlemen of the country, and probably of lowering the influence of the law. This, in the present state of Ireland, would be a most dangerous experiment. The treatment of Captain Coote, taken in connection with the dismissal of a magistrate in the same county, and contrasted with the leniency shown towards a gentleman of superior social standing, who was permitted to talk treason mingled with direct appeals to violence and bloodshed, was calculated to produce the impression that a different measure of justice was to be meted out to Protestants from that which their Roman Catholic fellow-countrymen received, and to disincline the former from undertaking offices which they had hitherto filled to the benefit of the community at large. The hon. Member concluded by moving his Resolution.


, in seconding the; Resolution, said, that having known Captain Coote and Mr. Mitchell for a great many years, he desired to record his opinion that they were incapable, either for political or religious purposes, of tampering with the jury panel. He wished to call the attention of the House, without trespassing at any great length upon its time, to some points which had not been dwelt on by his noble Friend (Viscount Crichton}. The assize town —Monaghan—was not in the centre of the county, and there was no railway communication with it from some distant baronies where the population was Roman Catholic; consequently there existed a difficulty in obtaining jurymen from those parts. The subject had long attracted the attention of the grand juries and magistrates, and it being suspected that the barony constables were capable of taking bribes from persons desirous of being left out of the lists, they came to an arrangement among themselves that these officers, instead of being appointed annually, should be appointed for seven years. The conse- quence was that a much higher class of men had been induced to accept the office; and he was informed that the effect on the jury panel had been most beneficial. This showed that the magistrates of the county had done all they could in order to place a proper class of men on the panel. The sub-Sheriff, whose conduct was complained of, had filled the office eight years, and he hardly thought that that would have been the case if he were an improper person. He would state for the last twelve years the number of Roman Catholics on the jury panel of Monaghan. In 1857 there were 50 Roman Catholics on the panel, and both the Sheriff and sub-Sheriff in that year were Roman Catholics; in 1858 there were 23; in 1859, 10; in 1860, 42; in 1861, 56; in 1862, 40; in 1863, 50; in 1864, 50; in 1865, 53; in 1866, 66; in 1867, 54; in 1868, 48; and in 1869, 49. It was to be remarked that the smallest number of Roman Catholics on the panel in any one of those eight years—when Mr. Mitchell was sub-Sheriff—was 40, while in another of them it was as high as 66. It had not been so high as that in any other year of the twelve years. In 1859 it was only 10. With regard to the action of the Government, and the verdict upon which that action was taken, the verdict was given by two triers, selected by the Judge to decide whether the panel had been properly challenged or not, and those men, both of whom were Catholics, and one of whom kept a well-known public-house, had since been struck off the petty jury panel. Last year the Gentleman who at that time filled the office of Attorney General for Ireland—and who, during his short career in the House of Commons, gained as much esteem for himself as anyone ever had in the same period—explained to the House the mode of trying a challenge to the array. He said— M'Kenna was then put upon his trial, and the array was challenged on his behalf. It was the greatest misfortune which could befall 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 applying triers was peculiar, and, perhaps, not over satisfactory, but it had been transmitted from very ancient times. The first two 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. Later in the year there was a trial at Galway, the particulars of which must be well known to the hon. and learned Member for Tipperary (Mr. Heron). According to the newspaper reports, Mr. Heron challenged the array at that trial. The Attorney General demurred, and the question as to how the challenge was to be tried having arisen, Mr. Heron referred to the Monaghan case, and wanted to have it tried in accordance with that precedent; but the Attorney General said that if the course taken at Monaghan were reviewed, it might not be found satisfactory, and Mr. Justice Keogh said that a different course had been adopted in the State trials at Cork and another place. The Charge delivered by Judge Morris at Monaghan was said to have been as strong as possible against such a finding as that which was subsequently arrived at; but a Queen's Counsel remarked—"You might as well have charged against a stone wall." Why did not the Executive in 1869, when Mr. Coote was dismissed, appoint the next gentleman on the Judges' list instead of appointing Mr. Langdale? That next gentleman was Mr. Brady. In 1870, when Mr. Brady was at the head of the list, they did ask him; but his health did not admit of his accepting the office, and instead of applying to other gentlemen in their order of succession on the list, the Executive again appointed Mr. Langdale. In 1869 Mr. Langdale appointed as his sub-Sheriff a gentleman noted for his very strong feeling in politics and religion on the other side; but when nominated to the office for the present year he appointed the master of an Orange lodge. He would read to the House what Lord Lyndhurst said in 1838 on the appointment of Sheriffs— Neither by the common law, nor by the statute law, was the power of appointing Sheriffs vested in the Crown. He would state broadly and distinctly his opinion, founded upon the Act called 'Poyning's Act,' that the Lord Lieutenant had no power to go out of the Judges' list. The Act of Parliament was precise upon the point; and who would say that an Act of Parliament was not to be obeyed by the Crown?"—[3 Hansard, xliii. 1005.] He held that it was the duty of the Government to do everything in their power to make the law effective. That could be done only by a system of perfect impartiality as between individuals, and as between sects. Let the same law be applied to Roman Catholics and to Protestants, to priests and to Presbyterian ministers, to the Peer and to the peasant. The Irish were very shrewd and very quick in their perception. There was nothing the lower classes in Ireland appreciated so much as justice. He himself had known an agent to be able to do anything with a tenantry in Ireland, because, though he was perhaps harsh, he was just. An ounce of justice was worth a bushel of legislation. He hoped that by dealing out justice equally among all classes in Ireland, that country would be made prosperous and happy.

Motion made, and Question proposed, That, in the opinion of this House, the conduct of the Government in the dismissal of Captain Coote from the Shrievalty of the county of Monaghan and the appointment of his successor has been unconstitutional, and calculated to impede the due performance of public duty."—(Viscount Crichton.)


said, it was most natural that his hon. and gallant Friend the Member for Monaghan (Colonel Leslie) should have seconded the Motion, and he thought it was most fortunate that the Motion should have been brought forward by his noble Friend (Viscount Crichton), who had done so with much intentional fairness. He was, however, unable to agree with the greater part of what had been urged either by the noble Lord, or the hon. and gallant Gentleman; and it would be his duty to state to the House the special and imperative reasons which had led the Irish Executive to depart in the case of the Sheriff of Monaghan from what he admitted to be, not the law, but the wholesome and beneficial practice in Ireland, with respect to the choice of the Sheriffs from the Judges' lists. He did not contend for one moment that what the Government had thought it their duty to do was a course that ought to be taken by any Government except under special circumstances, and for very good reasons connected with the public interests. When those reasons did not prevail—and he hoped they would be seldom found to exist—he agreed that the ordinary and wholesome practice ought to be—and he was sure it would be—maintained. Two questions were raised by this Motion: first, there was a question relating to the dismissal of the Sheriff of Monaghan, which it was the painful duty of the Irish Executive to order; and, secondly, there was a question as to the appointment of his successor. His noble Friend (Viscount Crichton) had passed very lightly over the transactions out of which this controversy had arisen, and he (Mr. Chichester Fortescue) was therefore bound to inform the House what those transactions were, because they showed very clearly, not only the nature of the case with which the Government had to deal, but also the imperative necessity there was for the Government dealing very carefully, and even very rigidly, with the administration of the law in Ireland. He would not go further back than 1865, when there was a General Election, at winch there were formidable scenes in the town of Monaghan. Those were scenes of party conflict arising out of the old feud between Protestants and Roman Catholics. During the disturbance on the day of election a Roman Catholic voter, who was among the crowd at the railway station, was shot, and in the following year a person was put upon his trial for causing that death; but that person, who was a Protestant, and, he believed, an Orangeman, was tried in the town of Monaghan by a jury consisting of Protestants, and was acquitted. He (Mr. Chichester Fortescue) did not say that that acquittal was not right; but it was absolutely essential that the House should know the facts, in order that they might understand the nature of the circumstances and the state of society in the county of Monaghan. In July, 1808, there were in the town of Monaghan the scenes usual on an Orange anniversary; there was the annual specimen of civil war, only that year it was rather worse than usual. Very violent outrages occurred, and a Roman. Catholic, named Hughes, was shot by some one from the window of the Orange Hall, which was attacked by a mob. Later in the year, in November, there were similar disturbances of a party character in the town of Monaghan, upon which occasion a Protestant, named Clarke, lost his life. It was supposed that he met his death at the hands of a man named M'Kenna, who was at the Spring Assizes of last year charged with that homicide. At that time a large number of persons, mostly Roman Catholics, were awaiting their trial upon charges of greater or less gravity. There were about 100 Roman Catholic prisoners, and twelve or fifteen Protestants. Among the Protestants was one David Baird, who was charged with the homicide of the Roman Catholic, Hughes; and among the Roman Catholics was M'Kenna, who was charged with the homicide of Clarke, the Protestant. The trial of Baird came on first. He was tried by a jury entirely consisting of Protestants, and he was acquitted. He (Mr. Chichester Fortescue) had no reason to say that the verdict was an improper one; indeed, the opinion of the then Attorney General for Ireland was that that acquittal was not improper. These, however, were facts which had made a great impression upon the people of Monaghan, and must be taken into account when a question concerning the administration of justice and public confidence in the law was brought forward. When M'Kenna was put upon his trial for the homicide of Clarke, and before the jury was struck, the prisoner's counsel challenged the array of the jury panel, which he alleged was not properly and impartially constituted, but was, on the contrary, constituted in such a way as to prejudice the case of a Roman Catholic prisoner. That challenge was submitted in the ordinary way to the constituted tribunal of "triers." At this point he must say one word about what his hon. and gallant Friend (Colonel Leslie) supposed to have been the opinion given at Galway by the late Attorney General for Ireland, who was thought to be adverse to the appointment of those triers. He could entirely satisfy both his hon. and gallant Friend and the House upon that point, because he (Mr. Chichester Fortescue) had been assured by the Master of the Rolls for Ireland that he never said, or meant to say, anything at all approaching to what had been attributed to him. The contention of the prisoner's counsel at Galway was that the Judge was bound by law to take the first two names of the jury panel, and the Attorney General contended that he was not bound to do any such thing. He was not quite sure whether the Judge might not take the names of any two respectable persons; but the Judge was certainly at liberty to take two names from the grand jury panel. What Mr. Justice Morris did at Monaghan was to take the first two names upon the ordinary panel. At Galway the Attorney General contended, in accordance with a number of cases, that the Judge was not bound to take those names from the ordinary panel, but that if he pleased he might take two names from the grand jury panel. At Monaghan the triers were constituted in the ordinary way; they heard the evidence as to the constitution of the panel. It had been said that the triers were both Roman Catholics, and that had been hinted at as a circumstance which showed the reason for what followed.


explained, that he did not assert that that circumstance was any reason for what happened. He merely said it was one of the circumstances that preceded this case.


said, there was no reason why two Roman Catholic triers should not be impartial even in a party case. It was, however, a very curious circumstance that the first two names on the jury panel should have been those of Roman Catholics, especially when certainly not more than seven—he believed not so many—Roman Catholic names were in the first seventy names on the panel. It was an odd coincidence, but nothing more. Those two triers heard the case, and came to the conclusion that the challenge was justified, and that the jury panel had not been properly and impartially constituted. Upon that the trials of all the prisoners were necessarily postponed, and the panel was of course quashed. As soon as these facts were brought under his (Mr. Chichester Fortescue's) notice and that of the Lord Lieutenant, the Government, acting under the advice of the Law Officers of the Crown, at once saw that it would be scarcely possible to allow the sub-Sheriff, who, as it appeared, had constituted that panel, to continue in his office and constitute further panels for the county of Monaghan. When he said that he meant this—He did not mean to say it was absolutely imperative upon the Government to act upon the decision of those triers; but he did mean to say that the primâ facie case requiring the Government so to act was of the strongest kind, and it would have required the strongest ground to justify them in setting aside that decision and acting as if it had never been given. And in considering the arguments and the evidence put before those triers the Executive and their legal Advisors had no reason to think the triers were not justified in the conclusion to which they came. Soon after that a Question was put in that House, supported by a statement by his hon. Friend the Member for Cork (Mr. Downing), not long after the Spring Assizes. It was then the duty of the present Master of the Rolls to answer that Question, and in doing so, although those circumstances had then only lately happened, and the Government had not then as fully considered the matter as it did afterwards, the Master of the Rolls said he thought it would be the imperative duty of the Government to take some means or other by which the same sub-Sheriff should not constitute the jury panel of the county of Monaghan, as the same prisoners, implicated in the same charge, with the same party elements, were to be tried at the next Assizes for that county. The Government considered the matter most carefully, and at a convenient time before the Summer Assizes he addressed a letter on the part of his noble Friend the Lord Lieutenant to Captain Coote, the High Sheriff, couched, he though, in very respectful terms, recounting the state of facts which he had just given to the House, and conveying in the strongest manner the opinion of the Lord Lieutenant that it must tend to shake public confidence in the administration of justice in the highest degree if the High Sheriff did not take immediate steps to appoint a new sub-Sheriff, whose duty it would be, in conjunction with the High Sheriff, to take care that the jury panel was fairly and properly constituted for the ensuing Assizes. The answer to that was a short letter from Captain Coote, respectfully declining to make a change of his deputy, and enclosing a statement of facts with regard to the framing of the panel which he thought would at once convince the Government they were wrong. That statement of facts was most carefully examined by himself (Mr. Chichester Fortescue) and the Law Officers of the Crown, and he was bound to say it more than ever convinced them that it was their duty not only not to set aside the verdict of the triers, but to give effect to it as far as the Executive were concerned. The House, first of all, ought to know that in the county of Monaghan there were 125,000 inhabitants, of whom 92,000 were Roman Catholics and 33,000 were Protestants; and the jury-book for 1869 contained 1,215 names, of which 423 were Roman Catholics and 792 Protestants. The High Sheriff and the sub-Sheriff had nothing to do with the jury book, but they were responsible for the jury panel which they made up from the jury book; and the jury panel for the Spring Assizes of 1869 contained 250 names, of which 201 were Protestants and only forty-nine Roman Catholics—a proportion very different from that comprised in the jury book. He should mention that the original jury panel contained 200 names altogether; but fifty special jurors were added—persons, as was well-known, of higher standing than ordinary jurors— and of those fifty only one was a Roman Catholic, and the result was, as he had stated, 201 Protestants to forty-nine Roman Catholics. One of the most remarkable facts relating to that part of the matter was that in the barony of Farney there were 291 jurors—the largest number, with one small exception, of any barony in the county—and out of those 291 jurors, 221 were Roman Catholics. And, further, in that same barony, there were 140 Roman Catholic jurors rated at and over £20 a year, and, therefore, men of a substantial and respectable class. Yet from that great barony, containing so large a proportion of Roman Catholic jurors, the Sheriff thought right to summon only twenty jurors, although how many of the twenty were Roman Catholics and how many Protestants he (Mr. Chichester Fortescue) could not say. The reason given by the Sheriff for doing that was that there was no direct railway communication between that barony and the county town of Monaghan. But there was railway communication [An hon. MEMBER: No!], though it was not direct; and it was not easy to get from the one place to the other. Another reason he assigned was, that he was not so well acquainted with the jurors in Farney as with those in the county town. Now, he (Mr. Chichester Fortescue) ventured to say that those were no reasons at all. The Sheriff was bound to make the very best panel he could make. On an occasion of such gravity as that, when the serious offences to be tried were of a party cha racter, he was bound to take care that the jury panel should be above all suspicion. But he did not do that. It should be added that the Roman Catholic names on the panel were, for the most part, placed low down on it. As he had already said, out of the first seventy names, there were only seven Catholic names. The Government, on a careful examination of all the facts, came to the conclusion that there were no grounds for setting aside the verdict of the constituted tribunal in that case, but that, on the contrary, it was their duty to accept that verdict and act upon it. They would at once have proceeded to do so had it not been for one statement made by the Sheriff of Monaghan, which had been alluded to by the Mover and Seconder of that Motion, and which he must explain to the House. The Sheriff described one of the triers, William M'Phillips, as a person who had sworn informations against James Clarke, for whose murder John M'Kenna was indicted. That implied a grave imputation against the impartiality of the trier, William M'Phillips; and, before going further, it was necessary to test that insinuation—because, of course, if anything of that kind could have been produced against M'Phillips, it might have made a difference in the decision arrived at. The Government, therefore, obtained a copy of the informations in question, and on examining them it appeared to him that, so far from that imputation being well-founded, the informations, on the face of them, were of a singularly fair and moderate character. They were only informations on a very trifling matter, to prove that that person had taken part in a party procession, carrying a flag and beating a drum; and it appeared that M'Phillips had not even volunteered those informations—that he had been compelled to come forward and say what he had witnessed. The man happened to sec the procession go by; he gave his evidence in a most moderate and straightforward way, and there was nothing to warrant any suspicion as to his fairness and impartiality as a trier. That being the case, the verdict of the triers remained as it stood before, unaffected, as he said in his following letter, written in July. But in the meantime considerable delay had occurred, and the Summer Assizes were over. Care, however, was taken that no injury should arise from that fact, because all the minor cases were postponed to future Assizes, and in that case of homicide the prisoner, upon certiorari in the Court of Queen's Bench, was tried elsewhere and acquitted, as it turned out, though that had nothing to do with the matter. But the Summer Assizes being over, it came to be seen how the jury panel had been constituted by the same sub-Sheriff on that second occasion—namely, the Summer Assizes, and they found that, so far from being improved, the panel was then rather worse than it had been at the Spring Assizes. There were 200 names on the panel for the Summer Assizes, of whom 160 were Protestants and forty Roman Catholics. The fifty special jurors had been omitted. And there was also this remarkable circumstance, that the Sheriff had thought it his duty to leave out of the panel the names of the two jurors who tried the case on the former occasion. The Government came with great regret to the conclusion contained in his letter to the Sheriff of Monaghan. They made up their minds that as it was one of their first duties to protect the impartial administration of the law, and to secure general confidence in that impartiality, especially in a county constituted like Monaghan, the High Sheriff who had declined to change his sub-Sheriff must be superseded. He now came to the second act of the play—namely, the appointment of a successor. The legal part of the case he would not touch—he would leave that to his learned Friend the Solicitor General for Ireland. He would assume for the moment that the Government had legal power to take the name of a gentleman not found in the Judges' list as it then stood. They believed it their duty both to consider the public convenience and to make it certain that the sub-Sheriff, whom they had taken pains to remove, should not be re-appointed, as that would stultify all they had done. Therefore, to avoid entering into negotiations, as by good advice they were able to do, and also the danger of having to repeat the same process if one of the gentlemen on the list had chosen to appoint the same sub-Sheriff, they filled the office by selecting a gentleman, not, indeed, on the Judges' list, but, as was admitted on the other side, of high respectability, holding property in the county, though, perhaps, not a resident, and perfectly competent, he supposed, in the opinion of everyone, to discharge the duty. His hon. and gallant Friend opposite (Colonel Leslie) said that the new Sheriff had made an objectionable appointment of an under-Sheriff. Well, he believed it was time that, in the first instance, he appointed a gentleman who had better not have been appointed, as he was open to the suspicion of partiality. His (Mr. Chichester Fortescue's) attention had not been called to the matter until very recently; but the gentleman referred to was not now in office; and to the gentleman who was now in office his hon. and gallant Friend could not object, for Mr. Nicol was, he believed, a good Protestant, (though he did not know he was a good Orangeman). He was a highly respectable man who could not be objected to on any side. The charge against the Government was that at the end of the year they again passed over the names on the Judges' list, and reappointed Mr. Langdale. But there was no occasion to pass over any names, because the High Sheriff was not appointed for any particular time, but during Her Majesty's pleasure. The Government allowed Mr. Langdale to continue in his office, and that was the most reasonable course for them to take. It would be very difficult for a Government holding the views which they held to allow the late sub-Sheriff again to form a panel for this year, for though the case of homicide had been disposed of there were other cases of a party nature arising out of the riot still to be tried. But quite apart from that, and as a matter of fairness, to allow Mr. Langdale to continue in office this year was only in the natural course of things. Mr. Langdale had been appointed towards the end of 1869; he had never gone through an Assize, and it was only fair that he should be required to go through two Assizes in 1870 like other Sheriffs. That was what the Government had done, and by that, as a matter of policy and duty, and as an effectual means of securing the due administration of the law in such a society as that of the county of Monaghan, they were prepared to stand. But there remained behind a very important question, as to which, however, the Government had no doubt—namely, whether they had legal powers to take that course. The Mover and Seconder of the Resolution had tried to overwhelm them with detached quotations from Blackstone, Lyndhurst, and Brougham; but they were quite familiar with these quotations, and with a great many others, which put an entirely different aspect on the case, and he ventured to say, according to the highest legal authorities in Ireland, to whom they had access, that whatever might be the case in England, as to which he had nothing to say, in Ireland, at least, the appointment of the Sheriff of the Crown from the Judges' list did not depend upon statute, but solely upon practice, and a practice by no moans uniformly observed. There was no English statute bearing on the subject, and the highest authorities, including Lord Plunket, denied that the English statutes of Edward II. and Edward III. applied to Ireland. For some time after the Restoration the Sheriffs were generally appointed as now; but from about 1770 to 1816 it was asserted that the Sheriffs in Ireland were appointed by the Crown. In the year 1816 Sir Robert Peel, then Chief Secretary for Ireland, restored the former practice; but restored it as a practice, and in his correspondence on the subject he never said one word about the illegality of the course of procedure which had prevailed for more than a generation before, and it would be strange if he had, seeing that in doing so he would have repudiated the legal authority of such men as Lord Chancellor Manners and Attorney General Saurin. But though Sir Robert Peel restored the usage, which, as a beneficial one, he was quite right in restoring, and though it had been generally adhered to since, yet upon several occasions it was for good reasons departed from by Lord Wellesley, the Duke of Northumberland, and Lord Normanby. A very curious case, bearing very much on this matter, arose in 1838 in this very county of Monaghan, and the coincidence was a strange one, as showing how events repeat themselves, and hereditary causes produce hereditary effects. In 1838 another Mr. Thomas Coote, he believed the father of the late High Sheriff—was appointed Sheriff, and having appointed as sub-Sheriff a notorious Orange partizan, with whom he (Mr. Chichester Fortescue) did not intend for a moment to compare the present sub-Sheriff, was removed by Lord Normanby, and was told by Mr. Drummond that he had shown by the first act of his shrievalty how little regard he had to the impartial administration of the law. A new Sheriff had to be appointed by Lord Normanby, and did his legal advisers think it necessary to confine themselves within the Judges' list? Not at all, and a gentleman not named upon it, Mr. Kenney, was appointed, and the Assizes came on. But at those Assizes there were prisoners to be tried who were fortunate enough to be defended by eminent counsel whoso names had since been heard of, and they recommended an appeal to the Queen's Bench on the ground that the jury was not a proper jury, because empanelled by a nominated Sheriff. That appeal was signed by the names of Joseph Napier and James Whiteside. They went before the Queen's Bench, and put in a plea that the grand jury had not been summoned by the lawful High Sheriff. The Crown replied, to which there was a rejoinder, and to this rejoinder the Crown demurred. The case was tried by an eminent Judge— Judge Burton. The counsel for the prisoner declined to argue the point, and judgment was given against the plea and rejoinder by Judge Burton. But, though fie case was not argued before the Queen's Bench, it was argued before a still higher tribunal—the House of Lords—by Lord Lyndhurst, supported by Lord Brougham, to whom were opposed the names of Plunket, Mulgrave, and Cottenham. Lord Mulgrave avowed that he had appointed a Sheriff outside the Judge's list in eighteen or twenty cases, on good grounds, and said that he wished, except under special circumstances, to abide by the practice of making the selection from the Judge's list. Lord Plunket, after referring to the facts and the law, maintained the propriety of what had been done, saying that, unless this were so not a single Sheriff in Ireland had been legally appointed since the Reformation, and that he was ready to share the whole responsibility of what had been done with the then Lord Lieutenant of Ireland; and Lord Cottenham, following, agreed with the views expressed by Lord Plunket. These being the facts of the case, and the law being as he had stated it, the Government, believing they had the power, thought it to be their duty, acting under the best legal advice, to take the course that had been followed on the present occasion. Further, he would say that, though it was far from their desire to depart, except under circumstances of the greatest gravity, which he trusted might never occur again, from the general usage, they would be ready at any future time to incur a similar responsibility, should it be necessary, in order to the due administration of the law in Ireland.


said, he did not rise to give an opinion upon the difference between the Sheriff of Monaghan and the Executive which had dismissed bun, but he could not forbear expressing an opinion which had been forced upon him by the discussion of the case, that if Captain Coote had done all the things of which he had been accused he had only followed the practice that had, in political cases, been habitually sanctioned by the Irish Executive. As one instance out of many that might be cited he would mention that though the county of Cork had a population of 500,000 Catholics against 50,000 Protestants, at the time of the Fenian trials in 1865, a jury panel was called, composed of 360 Protestants and forty Catholics. If Captain Coote acted unfairly he should like to know what would be said of the Crown prosecutors who, in the case to which he referred, insisted on bringing prisoners to trial before an unfairly constituted jury such as he had described. No doubt the learned Solicitor General for Ireland would say that the Crown prosecutors were the best of men, and it was equally free from doubt that, as lawyers and Crown prosecutors, they were so; but this only proved what he had said, that the practice of the Crown in the trial of criminal cases in Ireland was habitually unfair, and that between the course taken by the Sheriff of Monaghan and the Executive that superseded him there was not a pin to choose.


said, it was not easy for an English Member to follow an intricate dispute as to the constitution of Irish jury panels; but he must say, having heard the very clear statements of his hon. Friends who moved and seconded the Resolution before the House, that he could hardly regard as satisfactory the explanation of his right hon. Friend the Chief Secretary for Ireland. The question was whether equal justice was done as between Protestants and Catholics under the present Government in Ireland; and his right hon. Friend, with the simple remark that the verdict of the triers was correct, had dismissed the question as affecting the Sheriff, altogether forgetting that Judge Morris, in his Charge, entirely approved the panel. What did the Government do with regard to the question? They said to the Sheriff—"Your sub-Sheriff has constituted an improper panel; you will not dismiss him, and we will supersede you." And having done this, the Irish Executive passed over the name of the next Protestant gentleman who was eligible for the office of Sheriff, and appointed a Roman Catholic; and the first thing he, in turn, did was to select as his sub-Sheriff a person who, as his right hon. Friend admitted, ought not to have been appointed to that position. When the term of office of the High Sheriff expired, instead of going back to the gentleman who had been so improperly passed over, the same Roman Catholic was re-appointed, on the ground that having only served part of a year it was but right that he should serve another year in addition. He asked the right hon. Gentleman at the head of the Government if this was showing equal justice to Protestants and Roman Catholics in Ireland? The other day it was said of the right hon. Gentleman at the head of the Government that if there was any one particular word emblazoned on his banner it was "equality;" and the right hon. Gentleman himself, ascending into one of his highest flights of eloquence, had compared himself with Janus and even with the lions in Trafalgar Square, adding that he had had an opportunity, in the course of his political career, of looking at politics in every aspect. This being so, he wished to know why the right hon. Gentleman did not act with more justice than had at present marked his conduct with reference to the members of different religious bodies in Ireland? The right hon. Gentleman the Prime Minister was a disciple of Sir Robert Peel; but he thought Sir Robert Peel would hardly approve the right hon. Gentleman's present course. There was at that day much talk of repealing the Union, and the Government dismissed all the magistrates who favoured repeal; and with equal justice they dismissed all the Orangemen also. Further, in 1850, the Earl of Clarendon; who was then at the head of the Irish Executive, dismissed the Earl of Roden from the lord-lieutenancy of the county Down, not for any political act, but in consequence of what the Government of the day regarded as nothing in the world more than an error of judgment, in receiving and addressing a procession of Orangemen, which was then perfectly legal. The Earl of Clarendon, when called upon for a defence of his conduct, said— It was the duty of Her Majesty's Government to inspire all classes with confidence in the impartial administration of the law; to convince them that before the law all were equal, and that whether high or low, rich or poor, the same measure of justice should be meted out to all. Having these words in his mind he (Mr. Bentinck) called upon Her Majesty's Government to state the course they meant to pursue. He called upon the right hon. Gentleman at the head of the Government in his capacity of modern Janus to show equal justice to all, and not to be—as he once said the right hon. Gentleman the Member for Buckinghamshire was—"a double-faced deity, who wished to smile on his friends and frown upon his enemies." What was to be the result of this business? It appeared, from what the right hon. Gentleman (Mr. Chichester Fortescue) had stated, that the real culprit in the case, if there was a culprit at all, was the Lord Chancellor of Ireland, who had been the cause of the names of gentlemen being passed over. It was the duty and business of the Lord Chancellor to assist the Judges who were charged with the selection of the Sheriff; and it was his duty to advise the Government not to pass over those Protestant gentlemen in order to appoint a Roman Catholic. From what he (Mr. Bentinck) knew of the Irish Bar, he was satisfied that if either of the able and acute lawyers at the head of the Courts of Common Pleas and Exchequer — Chief Justice Monahan or Chief Baron Pigott —had been in this position of responsibility, the same disastrous result would not have happened. But the right hon. Gentleman, for a political purpose, had gone out of his way to appoint, over the heads of those distinguished Judges, one who had previously been but a Puisne Judge; the reason being that he was known to be a partisan of a small but active section of the Roman Catholic party, which entertained ideas differing very widely from those held by the ma- jority of persons belonging to the same religion. Had a man of greater weight been chosen to fill the office of Lord Chancellor, he believed that the Protestants of Ireland would not have the same good reason which they now possessed to bring a charge of inequality of treatment against the present Government.


said, he hoped that in taking part in this discussion he should confine himself to language which would be in harmony with the feelings and opinions, not only of those who sat upon his own side of the House, but of those who sat opposite. He rose simply to advocate what was just and right; and with respect to what had arisen, as narrated by the Chief Secretary for Ireland, he was bound to say that, looking at it either from the point of view of the right hon. Gentleman himself or of his noble Friend (Viscount Crichton), it left upon the mind a painful impression. Great distrust of the law obviously existed upon one side and on the other, and it was no doubt highly difficult for the Government in keep straight between the two parties. But the question really was whether in proceedings so strong and unusual as had been adopted in this case there had not been something very like a triumph given to one side, and a depressing influence, not called for by the circumstances, exercised upon the other. The returning officer, whose name had appeared in the course of these proceedings, had stated that he was in the habit of taking Roman Catholics and Protestants alternately, and that he had suggested to Mr. Mitchell to adopt that course last year. Mr. Mitchell very properly refused to listen to the recommendation, because nothing could be more calculated to impede the due course of justice. Looking to the panel for the county of Monaghan he found upon it the names of 1,215 persons; and in matters of this kind it was necessary to look, not so much to mere population as to those who were entitled by rating to servo as jurymen for the county. Of those who were so entitled to be upon the panel 792 were Protestants and 423 Roman Catholics; that was to say, speaking in round numbers, the Roman Catholics formed one-half the Protestants. When the panel was called over, upon the occasion of the trial, seventy-two jurors answered to their names; of these, forty-eight were Protestants and twenty-four Roman Catholics—the proportion of Roman Catholics corresponding in the main to the number of those upon the general panel of the county. In itself, therefore, there was nothing unfair in the proportion; and, in addition, it must be remembered that the two first who answered to their names, and were sworn as triers, were both Roman Catholics. He held in his hand a Return of the constitution of the different jury panels from 1857 to 1869, and it appeared that the highest number of Roman Catholics put on was sixty-six and the lowest number forty. The highest number had been put on in 1866 by the same sub-Sheriff, Mr. Mitchell, whose conduct was impeached in the late transaction; and in 1864, when Mr. Rogers was sub-Sheriff, and the alternate principle of selection recommended by Mr. Reilly was adopted, the panel only contained the names of fifty Roman Catholics. Forty-nine was the number placed upon the panel by Captain Coote; and this he (Mr. Gathorne Hardy) found, from the statement of the facts as they came before the Judge, was certainly at least equal to, if it did not exceed, the average number of Roman Catholics called on to serve for many years past. The only ground he had been able to find in the Papers for the imputation upon Mr. Mitchell was, that a sufficient number of Roman Catholics had not been put on from the barony of Farney; but whether this was owing, as had been already suggested, to the fact that the barony lay at a considerable distance, and that jurors accordingly were unwilling to serve, or from some other cause, the fact remained that the number of Roman Catholic jurors from that barony upon the occasion in question was fully equal to the average number who were returned. Therefore, so far, primâ facie there was no case against Mr. Mitchell. But the panel was challenged, the two first persons were chosen as triers; and, though he made no imputation upon them, it was impossible, remembering all that his right hon. Friend opposite had staled, to put out of sight the fact that both the persons chosen to try whether a sufficient number of Roman Catholics had been placed upon the panel were themselves Roman Catholics. Another point which would naturally occur to the mind of any Protestant in Monaghan, thinking over all the circumstances, would be that one of these very triers—in the fairest possible way doubtless, but still, as a matter of fact—had laid an information against the deceased man Clarke. And further, when the trial of M'Kenna took place in another county, it was a circumstance worth noting that the other trier sat by M'Kenna throughout the proceedings, and showed that he was deeply interested in the trial. Was it surprising, therefore, that Captain Coote, when called upon to dismiss his under-Sheriff, against whom, during nine years, no complaint had been made, and whose character must have been destroyed had effect been given in such a manner to the verdict of the triers, replied— I have known Mr. Mitchell for many years; he has served before without reproach, and I will not, therefore, take upon myself to dismiss him; at least, without application being made, in the first instance, to the Judge who tried the case. Let the opinion of the Judge be ascertained; let it be known whether he, accustomed to weigh such matters, is satisfied with the verdict of the triers before I am called upon to send Mr. Mitchell into the world stained with the imputation of having falsely and fraudulently got together this jury. In this appeal to the Judge who tried the case Captain Coote was certainly acting in conformity with invariable practice. His right hon. Friend opposite the Secretary of State for the Home Department, where a case was referred to him affecting the life or character of any human being, would no more think of taking action upon the matter without referring it to the Judge who had tried the case and obtaining the Judge's opinion upon it than he would think of trying the case himself originally. Upon this point he appealed, not to passion or to party feeling—he appealed to those who were acquainted with the mode in which business was ordinarily conducted in this country. His right hon. Friend opposite (Sir George Grey) had long filled the office of Secretary of State for the Home Department, and he felt certain that if such a case had come before him he would never have dreamt of acting to the prejudice of any person, in the same manner that Captain Coote had been dealt with, until he had first referred the matter to the Judge, who knew all the circumstances of the case. With regard, therefore, to Captain Coote, an unjust and harsh proceeding had been adopted. He did not deny the power of the Government to act as they had done; he did not impugn their authority; but he ventured to think that such an exercise of power could not be defended. He impugned the step which had been taken, because the evidence relied on in support of it was not satisfactory, and, further, because the Government had not thought proper to appeal to the Judge by whom the case was tried. That Judge—if he might throw in such a consideration—was himself a Roman Catholic; but he was a gentleman upon whose perfect honour, integrity, and desire to do justice to all parties the Government might have relied with confidence. He came next not merely to the removal of Captain Coote, but to the appointment of his successor. The Secretary to the Lord Lieutenant had admitted that as a matter of course, in the ordinary discharge of his duties, the name next upon the list recommended by the Judges would have been selected. When Captain Coote was removed, two names remained upon the list; and he was not aware that any imputation had been cast upon the fitness of either of those gentlemen. On the contrary, it was admitted that they were gentlemen well qualified to fill the office of High Sheriff. But what did the right hon. Gentleman say? In consequence of an apprehension which he entertained that they might re-appoint Mr. Mitchell as sub-Sheriff, without making a single application to either of those gentlemen, without calling their attention to the circumstances, without asking whether they entertained either willingness or unwillingness to act, and without ever asking whether, if chosen, they meant to appoint Mr. Mitchell, the Chief Secretary took a gentleman who was non-resident in the county, a gentleman who was of a different religion from the two who were upon the Sheriff's list, and without a word to those gentlemen appointed the Sheriff he himself had selected over their heads. In some great emergency he could understand a course like this being adopted by a constitutional Government, such as he hoped the present Government aspired to be. Precedents might undoubtedly be found for it in the days of James II., or in the acts of Lord Mulgrave, to which reference had been made. But the acts of Lord Mulgrave did not pass without severe commont and reprehension—reprehension not conveyed in the language of partizans, but in what might almost be called a judicial survey by Lord Lyndhurst, who came to the conclusion that acts such as those were contrary both to law and to the Constitution of the country. This, indeed, had been practically admitted by the right hon. Gentleman opposite. At a moment, when the Government were desirous of giving a great example of equity and of acting in strict accordance with law, it was certainly unfortunate that they should furnish to the Irish people, and to Irish Protestants especially, such materials for reflection and comment as this case afforded. Captain Coote was dismissed from the office of Sheriff because his sub-Sheriff was suspected of partiality in putting too few Roman Catholics upon the panel. The Government redressed the balance by calling in a gentleman from a distance to serve as Sheriff. And whom did this gentleman, the new Roman Catholic Sheriff, select as his sub-Sheriff? Why, the very man who had acted as treasurer in collecting the money for the defence of M'Kenna. Was the conduct of Mr. Mitchell impugned because he had done that which had been done since 1857, and was another Sheriff to appoint a man who would have to impanel a jury if M'Kenna had been again tried in that county, the sub-Sheriff being the man who had been treasurer of the sum for his defence? He thought when they were endeavouring to take away from the Irish the idea that justice was not impartially administered, they must take great care not to expose themselves to imputations these parties made upon one another. If the Secretary to the Lord Lieutenant had taken one of those gentlemen named on the list, or said he thought that a new sub-Sheriff ought to be appointed, he might have saved a great deal of ill-feeling on the subject. He might fairly have said that—he might fairly have asked whether the gentleman appointed would have undertaken to do it. Had he done so, he would have taken the ordinary constitutional course. He did not think anything would have happened with the panel which would have interfered with this action on his part. He was quite certain that the course taken by the Government in this case had not been judicial, though they might desire it to be so. It had made an impression in Ireland that if Protestant ascendancy was to be put down, it was to be put down by Roman Catholic ascendancy. That was an injudicious and unfortunate thing; and he hoped what had happened, or might happen, to-night would tell the Government in tones not to be mistaken, that the English people, in their desire to see equality among all classes in Ireland, would not give assistance to any invasion of the Constitution in order to obtain it.


said, he must beg to recall the attention of the House to the question as put from the Chair— whether the conduct of the Government in the dismissal of Captain Coote and the re-appointment of his successor had been unconstitutional, and calculated to impede the due performance of public duty. The first and most important question, to consider was, whether what had occurred in the appointment of Mr. Langdale in consequence of the dismissal of Captain Coote was constitutional or not. It was always unpleasant to argue in that House what, after all, was a dry question of law; but he ventured to assert that it could be shown by reference to the statutes and cases that the conduct of the Government in this instance was strictly within the limits of the Constitution, and in no way a departure from the law of the land. He was very much struck with the ability of the noble Lord who had introduced the subject (Viscount Crichton), from the manner in which he referred, although he was not a lawyer by profession, to the authorities which seemed to justify his opinion. He (Mr. Dowse) thought, however, that a short examination of the loading cases would satisfy the House that the Government had acted wisely, so far as the question of law was concerned, in following the advice of their legal Advisers, and justly, so far as discretion was concerned, founded upon the opinion given them on the point of law. He took his stand on this position, which he held to be settled and indisputable—that the Crown had power to nominate a person to be Sheriff of a county in Ireland, although not returned on the Judges' list, and that such person was legally and con- stitutionally the Sheriff. This was plain whether they referred to the origin of the office of Sheriff, the statutes that regulated it, or the nature of the duties which the Sheriff was called upon to perform. The office of Sheriff was contained in the earldom which undoubtedly lay in the gift of the Crown; and when the office was separated from that of earl the right of appointing the Sheriff, as of conferring the dignity of earl, remained in the Crown. The Crown had even the power of giving away this right. The Corporation of the City of London had the privilege by charter, which was given by Henry I. for a consideration to the county of Middlesex. Unless this power was taken away by statute, it was inherent in the Crown. Had it, then, been taken away by statute? The statutes mentioned by the noble Viscount were the 9th. Edward II. and the 14th Edward III.; but these statutes did not abridge the power of the Crown to appoint a Sheriff. This fact had been recognized by our greatest writers including Bacon. Mr. Chitty, on Blackstone, was clearly of opinion that the statutes referred to, while they took away from the people the right of choosing a Sheriff, did not affect the Crown's right, privilege, and prerogative to appoint Sheriffs. Lord Tenterden gave a similar opinion. Reference had been made to the reign of the Stuarts. He did not know that that was a very good time to search for precedents, but a precedent was not necessarily bad because it came from a bad time. What was the English statute on the subject? It declared that upon the morrow of All Souls', the Chancellor—that was, the Chancellor of the Exchequer — Treasurer, President of the Council, and Chief Baron were to meet in the Exchequer, that they should sit in open court, and discharge their duty in an open, legal, and constitutional manner. There was a great dispute in the other House in 1838, whether the statute applied to Ireland. Lord Plunket maintained that it did not, and that if it did there had never been a legal Sheriff appointed in Ireland from the days of Henry VII, to the present time, for the Judges never sat in open court. He (Mr. Dowse) would go further and say that if the English Acts were binding and creative, there never was a legally appointed Sheriff in Ireland; because, before Poyning's Act, the English law did not apply. But even if the statute did apply to Ireland he contended that its terms were merely affirmative and not negative, and that it did not take away the power of the Crown to appoint a Sheriff. The very case in question had been decided, as referred to by his right hon. Friend, and the position of the Government on that point was impregnable. In Monaghan, in 1838, a bill of indictment was found against a man named Heenan, and counsel pleaded that Thomas Coote (father or grandfather of Captain Coote) was the Sheriff, and that one Kenney summoned the jury. The relocation of the Crown was that Kenney was Sheriff—Kenney had been appointed by the Crown direct. The case came on for argument before the Chief Justice, and what was the judgment? It was that the prisoner was to plead because the jury had been properly impanelled. And in other cases similar decisions were arrived at. He trusted he had shown that the duty imposed upon the Crown in the present instance had been performed in a constitutional manner. The question, however, still remained whether Captain Coote ought to have been deprived of his office. How did the case stand upon this point? The Sheriff was appointed during Her Majesty's pleasure, and Captain Coote had been removed from his office by the appointment of another person to it. Nothing was more important than that justice should be impartially administered in Ireland, and the present Chief Secretary, beyond all others, desired to secure the impartial administration of the law. In this particular case it happened that although the population of the county of Monaghan consisted of 90,000 Roman Catholics, and 30,000 Protestants, the jury book contained the names of 800 Protestants as against 400 Roman Catholics. He was willing to concede that the Roman Catholic population was generally of the lower order, and therefore the relative proportion of Roman Catholics and Protestants would not show itself exactly on the jury book. But neither did the proportions of the jury book appear in the jury panel, which only contained one-fifth or one-sixth of Roman Catholics. A person, of a credulous turn of mind might believe that that was an accident, but it was extraordinary how frequent these accidents were, for on another occa- sion, out of a panel of 110 jurors only ton were Roman Catholics, and their names, by another unaccountable accident, had got to the very bottom of the list. There was not the excuse that they had been placed alphabetically, for two of them began with the letter A. Now if ever there was a time when it was necessary that there should be a just panel it was on the occasion in question. Two men, one a Protestant and the other a Roman Catholic, were to be tried for their lives. Others were to be tried for taking part in one of those religious— he should rather say irreligious—brawls that were a disgrace alike to Irish Roman Catholics and Irish Protestants. And the result of the conduct of Captain Coote and his sub-Sheriff was, that these men had not yet been tried, and were now awaiting their trial at the Assizes, The excuse put forward for not summoning the quota of jurors from the barony of 1'ariiey was, that they resided at too great a distance from the county town; but as the distance was not more than fifteen or sixteen Irish miles, with a railway running within four or five miles of the place, and cars plying the intermediate distance, the jurors might have been conveyed from their houses to Monaghan within three or four hours. When M'Kenna's case came on to be tried the prisoner challenged the array. The learned Judge appointed two triers to try the panel, and they found that it was unfairly and improperly constituted, and for a purpose, and the sub-Sheriff afterwards went the length of leaving the two triers off the panel because, he (Mr. Dowse) presumed, that functionary did not consider them proper jurymen to try prisoners. The panel was quashed and no more trials were allowed under it. M'Kenna applied to be tried at Louth, and was acquitted. The Executive took no further steps upon that occasion, and it was not until the next Assizes, when it was found that the person who was responsible for making out the panel was utterly incorrigible, that the Government called upon Captain Coote to remove him, and on Captain Coote refusing to do so, the Government was compelled to remove Captain Coote himself. He submitted that the Executive had only done in this matter what they were bound to do, and he trusted they would be acquitted by the high court of justice before whom they were now upon their trial of having committed any improper act in reference to this matter. The panel was worse than before; there was no time to get a certiorari, The Government had to say to the prisoners—"We will not try you until March, 1870." The Government, he contended, was not justified in again running the risk in March, 1870, they had had to encounter by the accidents of this sub-Sheriff whom Captain Coote had declined to remove. The right hon. Gentleman the Member for Oxford University (Mr. Gathorne Hardy) appeared to think the Government should have entered into a kind of bargain, and have informed one of the other gentlemen on the list that they would appoint him if he would not appoint such a person as sub-Sheriff. He, however, contended that it was the duty of the Executive to exercise its own discretion, and to appoint a gentleman of position and respectability who was not likely to appoint Mr. Mitchell sub-Sheriff. It was said that Mr. Langdale had appointed as sub-Sheriff the former treasurer of M'Kenna's fund. Mr. Langdale would have been quite incapable of appointing such a person had he been aware that he had acted in that capacity; and as soon as he was aware of the circumstance he removed him and appointed a strong Protestant, the master of an Orange Lodge, in his place. The right hon. Member for Oxford University, in his fair and candid speech, had said he believed the Government were anxious to do their duty. He (Mr. Dowse) said that they had done their duty, and they would have been liable to blame had they not acted as they did. They were not to be kept from doing their duty by irrelevant remarks or references such as those of the hon. Member for White-haven (Mr. Bentinck) to cases not before the House. The case of Captain Madden would be met when it came on; one case was enough at a time. The hon. Member for Mayo (Mr. Moore) intervened in the debate, on the part of the Fenians, and for some reason or other his Friends cheered him. Fortunately the Attorney General for Ireland, who was engaged as Solicitor General in the prosecution of the Fenian prisoners, happened to be in the neighbourhood of the House at the time when the hon. Member for Mayo was speaking, and he had sent a note to the Treasury Bench, in which he authorized him to state that on the occasion referred to the panel was challenged and the triers found on their oaths that the panel was fair and honest. The charge in ado against the panel of the county of Cork, as far as it was an unfair panel, was disposed of by the constitutional method in the same way as the panel in this case had been. In conclusion, he had refrained from going more minutely into the legal question, as it was unnecessary and would only weary the House. He left the matter in the firm belief that the Motion was totally unsustainable, and that the House would say that the Government deserved not censure but thanks for what they had done in this matter.


said, he was not prepared to deny the prerogative of the Crown to appoint a Sheriff, nor was he prepared to deny that the Crown had power to select a Sheriff in Ireland or England, from outside the Judges' list. Indeed, examples were to be found in Irish history—in the course of the Governments of the Duke of Northumberland and of Lord Normanby—of this having been done; and an implied sanction was given to the step, by the fact that there was no express condemnation of it by Parlialiament. He was not prepared to deny the view of the Solicitor General that the statutes were affirmative; but, notwithstanding this, it was a very serious matter to exercise a prerogative which so great an authority as Blackstone had pronounced to be totally unconstitutional. Blackstone expressly said— It is true, the reporter adds, that it was held that the Queen by her prerogative might make a Sheriff without the election of the Judges, non obstante aliquo statuto in contrarium; but the doctrine of non obstante's, which sets the prerogative above the laws, was effectually demolished by the Bill of Rights at the Revolution, and abdicated Westminster Hall when King James abdicated the kingdom. However, it must be acknowledged that the practice of occasionally naming what are called pocket Sheriffs, by the sole authority of the Crown, have uniformly continued to the reign of His present Majesty, in which, I believe, few (if any) compulsory instances have occurred."— [Blackstone 1, ix.] But although it was true the Crown had power to make Sheriffs outside the names returned by the Judges, that power had not been exercised in England for a very long time; he was not aware that it had been exercised in England since the Revolution. Unquestionably it was exercised by Charles I. and James II., and not improbably the reason it had of late not been exercised in England, was because of the opinion of so great a constitutional authority as Blackstone against it. If, then, it had not been exercised in England for a long time, and some constitutional feeling existed against it, was it not all-important that there should be as great an unwillingness to exercise this high prerogative in Ireland as had existed in the case of England? Indeed, it was more necessary to refrain from exercising this prerogative in Ireland because of the political character of the representatives of the Government. The Lord Lieutenant, although he was the representative of the Sovereign, was not the actual Sovereign, but the member of a political party, and appointed by that party. The Chief Secretary for Ireland was generally a Cabinet Minister, and avowedly engaged in political conflicts, and of late years the Irish Law Officers had generally been Members of that House, and taken an active part in political discussions. Admitting the high position of the Lord Lieutenant, and the weight which should be attached to any act of his, or of the Chief Secretary, the question was, whether it was not the safer course, and a course calculated to create greater confidence in the administration of justice, that persons inevitably associated with political parties should not interfere in matters connected with the machinery for the administration of justice. He held that Members of the Government should as carefully refrain from nominating the Sheriffs as from nominating the jurors; and the extreme importance of the point was manifest when it was considered that the Sheriff selected the panel. The charge against Captain Coote, too, showed how important it was that the Sheriffs should derive existence from a quarter where no political influence prevailed. He had himself twice acted as a Judge sent by Lord Kimberley, and on one occasion he had the returning of Sheriffs for Wexford, Waterfowl, Kilkenny, and the county of Tipperary. Believing it was the duty of the Judge to exercise discrimination in the names he returned, he refrained from complying with a request to nominate a young man just arrived at his majority in one case, on the ground of the disturbed state of the country, and returned the name of an older and more experienced gentleman. Now, if the Judges exercised discretion in returning names was it not a strong measure for a Government to take to exercise an arbitrary prerogative in the teeth of a return by the Irish Judges? Therefore, setting aside the fact that rare and exceptional occasions may arise to justify the exercise of the prerogative, he contended that the greatest reluctance should be felt to exercise that discretion except on the most sound and certain grounds. He was of opinion that the Chief Secretary was perfectly right in taking action in the matter when he found the triers had returned against the Sheriff that he had impaneled improperly; but he questioned the propriety of his mode of action. Here again it was impossible to omit the fact that the Executive in Ireland was political, that the Law Officers were political, and that the Chief Secretary himself was a political character: and he objected to their constituting themselves judges in an inquiry affecting the conduct of a person engaged in the machinery for administering justice. When his right hon. Friend (the Chief Secretary for Ireland) found the sub-Sheriff had acted improperly, it was his duty to write to the Judge who presided at the trial, to know the particulare of the case. It was by no means a matter of course that the triers should be right; to decide as to what constituted an improper panel was not so simple a matter. The mode in which a Judge selected the triers was to take any person who might happen to be in the court. By accident, the Judge at Monaghan took the very first two names on the impeached jury for triers. The Judge might accidentally select two persons who would not discharge the duty of triers, he would not say with honesty, but with intelligence—because the juror who discharged the duty of trying the character of a panel should be characterized not only by honesty of purpose, but by a certain amount of education, so as to be able to distinguish between a popular and a bonâ fide objection. Suppose, for instance, that there were not a sufficient number of jurors who belonged to a particular rank in society, and that the panel was formed exclusively, or nearly so, of the gentry, why should anyone proceed to act upon the finding of triers who, taken from a lower class, came to a decision on grounds incapable of being upheld on legal grounds that the panel was not a proper one? He had himself seen such a thing as the two triers find- ing against the Judge's charge, and there was no immediate remedy. In the present case, however, the point was, whether the sub-Sheriff should have been condemned before the following plain and simple question was put to the Judge:—"Do you approve the conclusion to which the triers came?" If this question had been put to the learned Judge, and answered in the affirmative, the Government would, in his opinion, have been perfectly justified in taking the course they did. They would then have had a judicial sanction of their decision, and he, for one, would not object to the Government having acted firmly and decisively, and to the utmost of their power, if they had previously obtained the opinion of the Judge, that the decision against the sub-Sheriff was founded on good legal and constitutional grounds. Now, in the present case, the right hon. Gentleman did not even pretend that he had ever communicated with the Judge. It had been already stated—though he might remark in passing that he disliked the introduction of religion into discussions of this nature—that in this case the Judge was a Roman Catholic, and that he was perfectly competent, in consequence, to say whether there were a proper number of Roman Catholics on the panel. That was all the more reason why his opinion should have been taken. He believed, however, that the Judge's opinion, in a legal point of view, was diametrically opposed to that which had been expressed in that House by his right hon. Friend the Chief Secretary of Ireland—namely, that at the commencement there ought to be established an abstract inquiry as to the religion of the juries. In order to show how fallacious such an idea was, he would remind the House that every juror must, by law, possess certain qualifications. Now, there existed in Ireland some baronies belonging to great absentee proprietors, and in which there was not a resident above the rank of a humble farmer. It might be that Roman Catholics in such a barony were omitted from the list, because they were not competent to act as jurors. Could anyone for a moment maintain that trials; ought to be upset because the Sheriff, not finding a sufficient number of qualified men in the barony, selected jurors from another barony? Another thing to be borne in mind was that, as the law at present stood, no publican, grocer, or person existing by mere dependence upon the public, could act upon juries. Both these causes tended considerably to reduce the number of those who were qualified to act upon juries. Matters instead of being improved would be very much complicated if they were to introduce a law that there should be on the panel a Roman Catholic and a Protestant alternately. The learned Judge, in his Charge, adverted to the doctrine, and said he was not prepared to acquiesce in it any more than he was prepared to acquiesce in the doctrine that the jury should be composed of men with light and dark hair alternately. This was a very dangerous doctrine to assert, for if it were admitted every man condemned for a particular offence would say—"There are only so many Roman Catholics upon the panel; but, according to the population of the district there ought to be more." There could, of course, be no doubt that the panel would be an improper one if it contained the names of Protestants only, or of an unduly small proportion of Roman Catholics, supposing this to have been done with the design of putting into the box partisans of the prisoner; but it was not legally true that a valid objection could be raised against a panel on the ground per se that there were not upon it persons of different religions. In this respect there was no distinction between the law of England and that of Ireland, and what would be said if a jury panel were objected to in this country because it was composed wholly of members of the Church of England and had no Dissenters upon it? Such a circumstance would not be illegal unless it had been brought about with a wrong and improper motive. In the particular case under discussion the opinion of the Roman Catholic Judge, as to whether the panel was improper or not, ought to have been laid before the House, which, however, had received no information on this vital point. If the learned Judge gave his opinion that the panel was improperly framed, he, for one, should at once bow to the decision and declare that the conduct of the Government was right. If, on the other hand, the Judge had given a contrary opinion, he should condemn the Government. The House had no moans of aiming at a satisfactory conclusion on the matter before the Judge's opinion was stated to them. Until then the House could only come to a decision on the subject in a lame and impotent manner. This was a matter of great importance, because the first thing requisite in Ireland would be to maintain the Executive in the public esteem, and anything which tended to throw a slur upon a Judge, as, for instance, the not taking his opinion into account was calculated to lower his influence. He (Dr. Ball.) might say from his own experience that it had been the habit to consult the Judges on such cases, and he therefore blamed the Executive for not having done so now. The second point which called for some comment was, that when the Government had determined to get rid of the Sheriff they superseded, without consulting any Judge, the names that were returned to them. Such a circumstance showed that this exercise of the prerogative was a very delicate and difficult thing. The Government selected a Sheriff of their own absolute and arbitrary choice without seeking the assistance of any independent person. Now, it was most desirable that every appointment in Ireland connected with the administration of justice should, as far as possible, come through a disinterested channel—a channel removed from politics and from all personal influence; and that constitutional channel was the Judges. But here, again, the Judges were passed over, and the Executive chose to act entirely on their own authority. How much more satisfactory would the right hon. Gentleman's position be if he could cite the opinion of Judge Morris to the effect that circumstances imperatively called for the action of the Chief Secretary. This House and the people of Ireland would, he felt assured, have been better satisfied if the Government had produced an authoritative communication from an independent Judge.


said, he was much struck by the anxiety of the Government to induce the House to overlook the words of the Motion— That, in the opinion of this House, the conduct of the Government in the dismissal of Captain Coote from the Shrievalty of the county of Monaghan, and the appointment of his successor has been unconstitutional, and calculated to impede the due performance of public duty. The Solicitor General for Ireland, having regard to other cases which would shortly come before them, had tried to impress upon the House that each of those cases was to be looked at separately. If the House adopted such a course, however, it would not be very likely to form a just appreciation of the public policy involved in this question. The only apology for the action of the Government in this instance was, that they acted with a view to public policy in the prevention of the undue exercise of religious and party fooling on the administration of justice. There was no question that the exercise of the prerogative in the supersession of a Sheriff was in some cases justifiable, and that it was not of necessity unconstitutional. But what was necessary to justify a supersession of the ordinary practice? It was that the act should be done distinctly for the purpose and with the result of securing the safety of the subject and the preservation of the State. Her Majesty's Government had not been eminently successful in their prosecutions in Ireland. He doubted whether in a similar period while any other Government had been in Office there had been such a marked failure in the administration of justice in Ireland. But the Government in this case had superseded one appointment by an interruption of the constitutional practice, for the purpose of making another appointment which was practically no better than the one they superseded. Therefore they could not plead, in justification of their unconstitutional practice, any success in the constitutional object of securing the due administration of justice. The House was bound to take notice of all these cases, because there was a general impression abroad that the present Government did not intend to mete out even justice to the Protestants of Ireland.


said, that the right hon. and learned Gentleman the Member for the University of Dublin (Dr. Ball) had not put the case correctly. The issue put to the triers was not whether there was a larger number of Protestants than of Catholics on the panel, or what was the proportion, but whether the jury panel had been tampered with and so constituted as to prejudice the prisoner; and that had been decided in the affirmative. It had been remarked that the two men first called on the panel were Roman Catholics; but it was evident, from this comment, that the facts were not known. On the day in question there were two courts sitting for the trial of criminals. In one of them, over which Judge Lawson presided, a number of Roman Catholics were to be tried, and that court was filled by Orangemen, who were anxious to be put on the panel for the purpose of convicting the Catholics. In one court there were Catholics to be tried for the alleged murder of a Protestant, and in the other there were Protestants to be tried for the alleged murder of a Roman Catholic. A great deal had been said of the Judge in the case. He was a Roman Catholic; but it must be borne in mind that he had been promoted to his office by the Conservative party, not because he was a Roman Catholic, not to satisfy the people of Ireland that a fair and just proportion of Catholics would be raised to the Bench, but because he was notoriously a Tory Catholic and a Conservative. He must not be understood as wishing to disparage the merits of Justice Morris as a Judge; but he intended to call attention to the fact that in charging the jury he made certain points more prominent than he would have done had he been a Protestant. If he (Mr. M'Carthy Downing) was to be tried to-morrow on any charge in Ireland, he would elect to be tried by a Protestant Judge, because the Protestant Judges had always been as discriminating as any Catholic on the Bench. He thought the decision adopted by the Government in dismissing Captain Coote would have the best effect, and that if they pursued a like course in all similar cases they would succeed in establishing a confidence in the administration of justice.


supported the Motion, remarking that while on his side the House the constitutional question had been again and again asked, it had been by the other side again and again burked. The hon. and learned Gentleman the Solicitor General for Ireland in especial had carefully avoided answering it—for he knew that if he had done so, his answer must have been in favour of Captain Coote and of justice.


said, it was not correct to say that the means of communication with Monaghan were imperfect, for he was a director of the railway, and he knew that the facilities for intercourse were better than existed in any other part of the country; and he might mention that although the barony of Farney contained 221 Roman Catholics eligible as jurors, and there was railway communication with Monaghan, only two were summoned.

After some observations from Mr. WHALLEY and Mr. CONOLLY,


, in reply, said, that he regarded the answer he had received from the Government as altogether unsatisfactory, and therefore felt bound to divide, and should take another opportunity of bringing the subject again before the House.

Question put.

The House divided:—Ayes 113; Noes 193: Majority 80.