HC Deb 19 April 1871 vol 205 cc1335-49

Order for Second Reading read.


, in moving that the Bill be now read the second time, said, he did not propose to call attention to the present state of Ireland, for that had lately been fully discussed on the Motion for the appointment of the Westmeath Committee. The Report of that Committee had not yet been presented; but it was pretty well understood that the evidence they had taken and their investigations had thrown very little new light on the subject. The condition of Ireland had, however, become so serious and so difficult that he considered it to have become the duty of any Member of this House to bring before it any measure which he honestly considered would have the effect of checking or repressing the crime that now went unpunished in Ireland, baffling and paralyzing the efforts of every Government to repress it. Under that feeling of responsibility, and acting on what he had seen and heard in Ireland, he had himself ventured to introduce this Bill, under the conviction that, if passed into law, it would considerably strengthen the hands of justice by increasing the number of convictions in Ireland. As Members were aware, the law of trial by jury was the same in Ireland as in England; the number of a jury was 12, and it was required that the jurymen should return an unanimous verdict in order to conviction. The same law applied alike to criminal and civil cases. The law in Scotland was different. There the number of the jury was 15; and in criminal cases a majority of that number carried a conviction; but in civil cases, after the jury had deliberated three hours without agreeing, the verdict of the majority would be received. The consequence in Ireland was that if there was one single man upon the jury who had been intimidated, or who sympathised with the prisoner, he could prevent a conviction, however strong the evidence against the prisoner might be. Hence the difficulty of obtaining convictions in Ireland—particularly where the party was tried for murder. It was unnecessary for him to describe the numerous cases in which prisoners charged with murder had been acquitted or discharged owing to the jury not being unanimous; but he would read a portion of the recent Charge of Chief Justice Monaghan, at the Westmeath Assizes— Things were going from bad to worse; the police return showed three men shot, four lives attempted, 45 threatening letters, several houses burnt, and five or six cases of cattle houghing. In the large majority of cases the offenders had not been made amenable to the law. He trusted that the proceedings in Parliament would improve the country, and restore safety to the inhabitants. The Grand Jury at the same Assizes adopted the following resolution:— The Grand Jury of Westmeath assembled at the Spring Assizes at Mullingar feel it incumbent on them strongly to corroborate the assertion contained in the Motion which Lord Hartington has now before the House of Commons, to the effect that a certain unlawful combination and confederacy exists in Westmeath. They endorse this fact, as well from their own experience, as from evidence before them at the present assizes, painfully confirmatory thereof; and they have further to state, that all the measures hitherto adopted in this country, for the suppression of agrarian and other crimes, involving intimidation, have proved wholly insufficient, and that an immediate remedy is urgently demanded for a state of things too truly described by Lord Hartington as intolerable. He thought these statements showed that all the measures hitherto adopted in Ireland for the suppression of agrarian crimes had been "wholly insufficient." Now, the measure he proposed would, to a considerable extent, remedy the present deplorable state of matters, and would give better security that convictions would be obtained where the evidence justified them; for it was to be hoped that out of the 15 jurors, of which number he proposed the jury should hereafter consist, at least eight would in every case be honest and above intimidation—whereas, as he had said, under the present practice a single juryman could prevent a verdict. He had collected some figures showing that upon the aggregate of five years, from 1865 to 1869 inclusive, the number of prisoners tried was—in Scotland, 16,021, of whom there were convicted 11,892, showing an average of convictions amounting to 74.22 per cent; while in Ireland the number of persons tried was, during the same period, 21,182; convictions, 12,567; showing a percentage of convictions to the number tried of only 58.0. The aggregate number of acquittals in Scotland was 4,129, or 25.78 per cent; and in Ireland, 9,165, or 42.0 per cent. During the same period the trials for murder in Scotland were 94, convictions 23, or a percentage of convictions of 24.46; while in Ireland the trials for murder during the five years were 106, and there had been only 10 convictions, or 9.43 per cent. Thus the percentage of acquittals for murder during the five years was in Scotland 75.54, and in Ireland 90.57. Taking the three years, 1867–9—the Returns for 1870 not having come in—it appeared that out of 60 persons tried for murder in Ireland, only one man had been convicted. Nor did this represent the whole of the case, for in addition to the number of murders for which persons had been put on trial, 86 other murders had been committed, for which no one had been brought to trial; this estimate not including cases of infanticide and children under one year. The result was that in three years 146 murders had been committed, for which only one conviction had been obtained. Such a state of things was truly appalling. These murderers were quite aware that as the law stood they might go on murdering even in broad daylight with a very remote chance of being brought to justice; but if they knew that a majority of the jury might convict, they would hesitate before taking life. His Bill, therefore, would not only increase the number of convictions, but would have a deterrent effect. He had been told that considerable disappointment had been felt that provisions such as the present Bill contained were not included in the Peace Preservation Act. It might be said that if the Bill were good for Ireland it would be equally good for England. But to that he replied that it was not required by the circumstances of England, as in this country it was not difficult to obtain verdicts, and juries were not subject to intimidation. Alteration of the law was therefore not required in England. Very possibly at some future time the law requiring unanimity of the jury might be altered; for many very eminent jurists did not approve of that requirement of our law. The Common Law Commissioners, appointed in 1831, reported in favour of some alteration; and certainly, in his opinion, it would be a step in the right direction that unanimity should not be required on the part of juries in Ireland. The state of Ireland necessitated prompt and decisive action; his Bill was no crude or untried measure; it had been in operation in Scotland for a length of time, and with the best results; if it became law in Ireland it would be a step in the right direction, as strongly urged in several letters he had received from different parts of Ireland, which he thought was unnecessary for him to read. He was rather curious to know what arguments could be brought forward against it? He should like to ask who would be aggrieved by its introduction into Ireland? Certainly not the well-disposed and most numerous class. There was, however, a class who would be strongly opposed to it—he meant the perpetrators of those fearful murders and outrages, who now went about unpunished and snapped their fingers at law and justice. He could not for a moment think that any Irish Member of that House had any sympathy with this class, or feared to do his duty to God and man. On these grounds he now asked—or rather called upon the Government to support this Bill, which would be sure to remedy, to a considerable extent, the present evils so unhappily now existing in Ireland.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Lambert.)


said, he had listened with the utmost anxiety to his hon. Friend to ascertain the reasons which he was about to adduce in sustainment of his daring proposition; but he must confess he had heard nothing to alter his first impression against the Bill. His hon. Friend's statistics were as unreliable as his reasoning was weak. He told them that so serious was the state of things in Ireland that every Member was bound to come forward and propose a remedy, and he then spoke of his sense of responsibility. He (Mr. Maguire), however, would tell his hon. Friend that he had no responsibility whatever—that he was wholly irresponsible; and it was this very sense of irresponsibility which rendered him so daring. It was not the first time that he had exhibited this daring of irresponsibility. The Member who regarded the National Debt as a trifle might be excused if he thought that a change in a fundamental principle of the Constitution was one of those things which might be easily dealt with by a private Member. His hon. Friend had failed to show either the necessity for his proposal, or that it would be attended with any good result whatever. His object was, he said, to secure a greater number of convictions. Now, he (Mr. Maguire) asserted that convictions were not wanting where there was sufficient evidence to warrant conviction; but that the great evil was not the want of honesty or purity on the part of the juries, but the want of evidence, without which no jury ought to convict. Then the question came, would the proposed change supply the necessary evidence? No doubt it might increase the number of convictions; but would that be a mode of obtaining reliable evidence? The great evil was the unwillingness of the people of a certain class to give evidence. What was the cause of this unwillingness? It arose either from a sympathy with the crime, or a hostility to and distrust of the laws. But when so fundamental a change was proposed as that involved in this Bill, they must not be afraid to inquire as to the cause of this distrust and hostility. It was of long standing; and it arose from a conviction in the mind of a large section of the people, that the law was their enemy and not their friend, their oppressor and not their protector. Take, for instance, one important law—the regulating the tenure of land. Confessedly that law was against the tillers of the soil, and not in their favour. What, in not very remote times, did the Irish peasant behold? He beheld the power of the law arrayed against him and his family, and his neighbours. He saw the sheriff come down, with his 50 or 100 police, to level his house, his neighbour's house—perhaps, to demolish a whole village; and what was more natural than that the law, under which an act of this kind was done, should be odious in the eyes of the Irish peasant, who was driven into the next ditch, or out naked on the world? Well, they had altered all that by the Act of 1869; and the people who were now watching the operations of this new law, would gradually begin to feel that the law was in their favour—that it was their friend—that it was their protector, and not their enemy and oppressor; and, with this conviction, would gradually grow up a respect for the law, and a confidence in its administration; and instead of there being an unwillingness to assist in its sustainment, the contrary feeling would spring up, and become eventually universal. When a great wrong was done under the protection of the law, which they now knew to have been a bad law, retaliation often resulted; and where there was thus an actual war between two classes, the victims of the bad law, or those who might any day become its victims, sympathized with the retaliatory outrage, and would not give evidence against its perpetrators. The influence of time, and the consciousness of the justice of the law, would do away with this hostility to the administration of justice, and even induce those who now stood aloof to give their aid to secure a rightful conviction of the offender. But the Bill of the hon. Member would not do that. The great desideratum was to inspire the mass of the people with confidence in the law—to banish the suspicion of the law, which had its origin in evil times; but the Bill before them would destroy confidence, and increase suspicion and hostility. Trial by jury would be brought into deserved odium from the very mode proposed. At present, where unanimity was required, there was, when a jury was fairly constituted, protection for property, for person, for liberty, and for life; but do away with this safeguard, and there was none whatever—and, more than that, you justified the suspicion which many still entertained as to the administration of the law in such cases as excited strong feeling where they were tried. At present, one man might, by his firmness, compel discussion, and even bring about a disagreement; but was this an evil? The prisoner might be tried again and again; and he had heard of a case—and that a recent one—in which a man was tried four times, and ultimately convicted. But suppose the law to be changed, and that a bare majority was sufficient to convict, how would that inspire respect or confidence? Eight men were for conviction, seven for acquittal; and the fact of this disagreement was made public. Seven say the man in the dock is innocent—that he ought not to be punished for what he has not done; but eight men say the contrary—and on the verdict of this bare majority he is sentenced to death, or to penal servitude. Would the carrying out of that sentence be attended with benefit, or be followed by great mischief? He (Mr. Maguire) believed that the effect created by the solemn pronouncement in favour of an acquittal by the seven jurors would be attended with the most disastrous result. The hon. Member had, inadvertently, no doubt, indulged in the most unjust and sweeping accusation against Irish juries—represented them as if no honest juries existed in Ireland, that their general character was that of corruption and dishonesty. He (Mr. Maguire), on the part of a most important class of his countrymen, repudiated that description—that grave practical calumny—in the strongest manner. His experience led him to this conclusion—that whenever the evidence was sufficient—in fact coercive upon conscience—juries convict; but Heaven forbid the day should ever come when juries would convict without sufficient evidence. There had been no want of convictions in Ireland, even in cases in which the strongest popular sympathy had been enlisted. Commencing with the trial of Mr. O'Connel, in 1843, and going through a series of years to 1868, we find that verdicts have been unfailingly obtained by the Crown. The fact was, the present jury system placed enormous power in the hands of the Crown to ensure convictions; and he certainly was not going willingly to increase that power, by enabling the Crown to obtain a majority to convict. So far from the present system not being sufficient, it is known that it can be and is often strained unjustly against the prisoner, through the matter in which the panel is managed, and jurors are set aside. Not only was there no demand on the part of any class in Ireland in favour of this change, but the feeling was strongly against it. The Irish Law Times, in a calm and impartial article on the subject, passed a grave and thoughtful condemnation on the scheme. The writer said that— When the State institutes criminal proceedings for the protection of the community, it is of essential importance that no conviction should take place where any element of doubt intervened, and it is a matter of secondary importance only that there should be a definite result arrived at in each case. "The idea of unanimity" the writer proceeded to say— As essential to a conviction, has become so inveterate, through long custom, that the new system could hardly find a ready acceptance, even in the absence of the special circumstances of the social and political condition of Ireland. The hon. Member had quoted the recommendation of the Common Law Commission of 1832; but, with every respect for him, he (Mr. Maguire) must say he had not represented it correctly. They never recommended a change in criminal cases, and they did not propose that there should be one law for Ireland and another law for England. Their proposal was for both countries, and was confined to civil cases. But it would appear they treated the principle of unanimity with contempt. There was, moreover, an authority far higher than that of the Common Law Commissioners—one so high as to entitle him to the respect of every cultivated mind—he meant Blackstone. Blackstone described trial by jury as having ever been "the glory of the English law," and especially in criminal cases; for that it— Is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. [The hon. Member read the passages of Blackstone's Commentaries relating to trial by jury.] But the hon. Member treated the solitary dissentient with supreme contempt, or stigmatized him as dishonest or corrupt. Would he kindly listen to what had been written upon this point by an authority of great weight? Stephen, in his Commentaries on the Laws of England, said— The present system (of requiring unanimity) is attended, at least, with one practical advantage of the utmost importance—that in the event of a difference of opinion, it secures discussion, and enables one dissentient juror to compel the other eleven to fairly and calmly consider the question. There had been in this country, as well as in Ireland, instances where the courage and honesty—not the dishonesty or corruption—of a solitary juryman had protected individual life, and public liberty. There was a remarkable case in his own city, when he was a mere boy, known as "the Doneraile Conspiracy." In that instance, not a conspiracy against the lives of landlords, but against the lives of peasants. Mr. O'Connell, who was brought down specially to Cork, broke up the conspiracy, but he was aided by an honest juror, who would rather eat his boots than give a verdict against his conscience, or his conviction of the truth. But had the hon. Member's Bill been law in those days, the prisoners would have been all hanged, and hanged wrongfully—a result which would not have tended to inspire the public mind of that day with a profound respect for the law, and in the administration of justice. The hon. Member desired to anticipate the action of Government in reference to Westmeath; but he (Mr. Maguire) only remarked that not a single one of the 14 witnesses examined before the Committee recommended the change proposed by this Bill. The evil complained of was mistrust, suspicion, hostility, on the part of a certain class of the people towards the law; but the effect of the Bill would be to intensify the evil, and not to diminish it. The public of Ireland would have no confidence in a mere juggle such as that proposed. In fact, it would combine all classes in common hostility to the administration of justice under such a system. He opposed this Bill because it was unnecessary—because it would increase the existing evil—because it would be sure to work injustice—because it would utterly destroy the growing conviction in favour of the law which was now springing up in Ireland. He opposed it, also, because it was proposed for Ireland and not proposed for England; and that the proposal of one law for one country and another law for another country was odious and offensive to Irish feeling. And he might add that, as far as he could learn, intelligent Scotchmen were not much in favour of continuance of verdicts by a bare majority, and desired a change. But if a measure affecting the liberty and lives of a people was to be brought in, let it be by a Government, not a wholly irresponsible private Mem- ber; and let the Government stand or fall by the nature and character of their proposal.


seconded the Amendment. There were many important distinctions in the jury laws of England and Ireland from those of Scotland, besides that which had been pointed out—the rule requiring unanimity. One there was in the method by which the jurors were selected; and here he ventured to think the Scotch system was preferable. In Scotland the Sheriff was bound to take the names from the panel in the order in which they stood; and, so far, the law protected the accused by insuring a fairly and indifferently chosen jury. In Ireland the Sheriff had an unfettered licence in selecting the jury, and he put them in whatever order he liked on the panel. This power of arbitrary selection of jurors in Ireland had been a continuous and fruitful source of dissatisfaction and want of confidence in the purity of the administration of justice. Time after time there had been complaints made against the Sheriffs for unfairness in arraying the jurors. To show how this arbitrary power was exercised, the hon. Member instanced that at a trial in the county of Cork—in which county there were 3,000 jurors on the book, of whom 2,000 were Catholics and 1,000 Protestants—there was only one Roman Catholic to six Protestants on the jury; and in the Monaghan case—which had occurred so recently as two years since, so that a similar thing might happen again any day—Mr. Sullivan, the present Master of the Rolls in Ireland, stated that of 1,215 names on the jurors' book, 423 were Roman Catholics; but of the 250 persons on the jury panel there were only 20 Roman Catholics, and these were placed at the end of the panel. Indeed, so gross was the conduct of the Sheriff in that case that he was removed from office. Another point which was worthy of observation in this part of the case was that, in Scotland, the prosecutor and the prisoner were put on an equality as regarded the right of challenge; there was a fair fight between them; the prosecutor had five challenges and the prisoner had five challenges; but, in Ireland, while the prisoner was restricted to 20 challenges, there was no restriction on the number of challenges allowed to the Crown. If this Bill became law, any unscrupulous prosecutor, with a subservient Sheriff who would pack his panel properly, would, with the majority system which was proposed, convert trials by jury into a nefarious system, by which the fate of every prisoner would be determined before the jury was empanelled. The Bill would work well enough in Scotland, which was happily free from the sectarian and agrarian differences which existed in Ireland, and where a majority might come to a conclusion; but it was not adapted to the state of Ireland. Nor was there wanting sufficient evidence to show that the present system deserved the encomiums that had been passed upon it by Blackstone. There had been cases in which the firmness of one man had saved innocent persons from conviction. Take the case of the two Kellys, who were tried in 1852 for the murder of Mr. Bateson, a gentleman of station and property. Three juries had disagreed; but, on a subsequent trial, evidence was adduced which convicted two other men, who were executed, the jury being satisfied that the Kellys were not present at the murder at all. It was matter of notoriety that the lives of the Kellys had been saved by the firmness of one man who stood out against 11. If this Bill had been then in operation, they must have been hanged. The Lambert case was very instructive as to the uncertainty of a verdict by a majority. At the trial of the prisoner in Galway, presided over by the Chief Justice, the jury disagreed, the numbers being nine for acquittal and three for conviction. At the next trial, the venue having been changed, the numbers were ten for conviction and one for acquittal. On the third day, the jury pronounced an unanimous acquittal. He had heard nothing from the Mover of the Bill (Mr. Lambert), except figures, to show any reason for its introduction, and even these figures were erroneous. The hon. Gentleman said that the number tried in Ireland in 1869 was 4,151; but that was a gross error, because that number represented, not the number of actual trials, but only the number of persons returned for trial—which was a very different thing. From that number had to be deducted 413 cases, in which the grand jury found no bills, and 364 cases in which the Attorney General directed that no prosecution should take place. The result of these deductions was to bring the number down to some- thing nearer an equality with Scotland. The fact was that, in 1869, the number of convictions on trial was 74 per cent in Ireland, as compared with 73 per cent in Scotland. The hon. Member wanted the Scotch system; but these figures showed there was no necessity for the proposed change in the law. The true reason why offenders escaped in Ireland was not the fault of the jury, but arose from the public prosecutor being unable to obtain evidence to bring an offender to justice. He did hope that this Bill would be rejected. The extremely scanty attendance during the present discussion would not justify them in dealing with so important a question, involving, as it did, one of the absolute foundations of the Constitution. The people of Ireland were perfectly satisfied with the present system, and the adoption of the proposed change would lead to the greatest dissatisfaction.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Maguire.)

Question proposed, "That the word 'now' stand part of the Question."


objected both to the principle and details of the Bill, and protested against such a subject being dealt with by a private Member. Not one of the three Gentlemen, whose names were on the back of the Bill, was connected with Ireland, or had any special knowledge of the feelings and wishes of the Irish people; and the Irish Members were unanimously opposed to the Bill. If the subject was to be legislated upon at all, it should be taken up by the Executive Government. Such a change as that proposed could lead to no satisfactory result.


said, he hoped the Motion for the second reading of the Bill would not be pressed, and that the hon. Mover would be satisfied by what was said by Irish Members and on the part of the Government. It was fortunate for the Mover that an Order of the Day did not require to be seconded, for it was doubtful whether he would have found a Seconder; it was certain he would not have found one among the Irish Members present on the Liberal side of the House; there were only two Irish Members present on the other side; and the two hon. Members whose names followed that of the Mover on the back of the Bill were absent. These facts showed that, whatever might be the merits of the proposal, the general opinion was that the time had not arrived for legislation. The Bill extended to civil as well as criminal business, and involved a sweeping change of the law—a change of too important a nature to be proposed by an independent Member. Even the clauses dealing with criminal cases proposed a serious change. The professed object was to assimilate the law of Ireland to that of Scotland. Speaking for himself, he thought it would be advantageous if the jury system of the three kingdoms were taken up and considered at the same time with a view to the law being placed on one uniform basis. He expressed no opinion as to what that basis should be; but he certainly desired uniformity, if possible, in the jury system of the three kingdoms. This was a work which would have to be done by the Government, sooner or later, from whatever side of the House that Government should be taken; and, in the meantime, he deprecated tentative legislation for Ireland, as if that were "a vile body" upon which experiments could be tried. But this Bill would not attain even the assimilation aimed at, because in Scotland there was a practice in the selection of a jury, and in the constitution of the panel, that did not prevail in Ireland; and the operation of the Bill would, to some extent, exaggerate the divergence already existing between the jury laws of Scotland and Ireland. The Scotch Members themselves, as the hon. Member for Edinburgh (Mr. Miller) had just told him, were not altogether satisfied with their system. As to the statistics that had been adduced they were illusory, because the prisoners "for trial" included those apprehended, remanded, and committed, those against whom true bills were found, and those who pleaded guilty, as well as those who were acquitted, and as to whom the jury disagreed, and those never tried at all; and the importance of distinguishing one class from another was shown by these figures, which he would take, not from the Irish, but the English tables of criminal statistics—In 1860, 99 persons were returned by the police as having been guilty of murder; 268 verdicts of murders were returned by coroners' juries; 49 persons were committed for trial; and only 16 were convicted. In 1865, 135 murders were reported by the police; 227 verdicts of murders were returned by coroners' juries; 60 persons were committed for trial; and 20 were convicted. The figures neither in Ireland nor in England showed how many of the accused were discharged in consequence of juries disagreeing—because there were acquittals as well as disagreements, and unless you can ascertain how many prisoners escape from the juries disagreeing there are no facts on which to found such exceptional legislation. The difficulty in the disturbed parts of Ireland was not to get men convicted, but it was to get them put upon trial at all; and that state of affairs would not be altered by enacting that 8 jurymen out of the 15 should convict—a change of the law which was not suggested by a single witness from Ireland examined by the Westmeath Committee. In the North of Ireland he believed the change proposed would work incalculable injury. The Government, he believed, fully recognized the importance of dealing with this question, but they held that investigation must precede legislation; and when the subject was dealt with it must be upon a consideration of facts collected from the three kingdoms and by a measure proposed by a responsible Minister, who must recognize the rights of prisoners as well as those of the Crown, with an honest desire to further the cause of justice and of truth. It would be an injustice and an injury to Ireland to inflict upon that country a change which no Member from Ireland had supported, and which he did not believe any Irish Member would second, and under these circumstances he hoped the House would not be put to the trouble of dividing on this Bill.


said, he hoped the hon. Gentleman (Mr. Lambert) would be satisfied with what he understood to be an assurance that the Government would take into consideration the jury systems of the United Kingdom—for those of England, Scotland, and Ireland equally required revision. The English system gave too much power to a minority of two or three jurymen to influence the views of the rest, and drive them to a compromise; the Scotch system gave too much power to a bare majority; and he trusted before long to see a system between the two, under which a reasonable proportion of a jury might have the power of binding a recalcitrant minority.


feared the last speaker had a little misapprehended the Solicitor General, who did not in any way pledge the Government to consider the whole question of the jury system; what he did say was that, whenever legislation was proposed, the question ought to be considered as a whole, and one system adopted for the United Kingdom. While concurring with the hon. and learned Gentleman that this was a question worth consideration, which he hoped it might receive, he was not in a position, having regard to the number of matters pressing for the attention of the Government and of the House, to pledge the Government to deal with this question now or at any future time.


said, that after the statement made on behalf of the Government, he would not press his Motion to a Division.

Amendment and Motion, by leave, withdrawn.

Bill withdrawn.