HC Deb 28 March 1873 vol 215 cc315-30

rose to move that a Select Committee be appointed To inquire into the operation of the Act 34 and 35 Vic. c. 65, Juries (Ireland) Act, and whether it is necessary to amend the same in order to secure the due administration of justice. In doing so he would place before the House instances which had occurred in all parts of Ireland illustrating the effects of the law, and then ask the House to consider whether these effects were not traceable to the present state of the law, and whether an immediate inquiry ought not to be instituted? Previous to the 1st of January last, when the existing law came into operation, matters relating to juries were managed under an Act passed in 1833, and though that Act had in some respects become obsolete, it worked as a rule smoothly enough, except, perhaps, in times of agrarian or political disturbances. The principal changes made by the Act of last year were the taking away from the Sheriffs the discretion which they had hitherto exercised, and the reduction of the property qualification. Formerly the Sheriffs had been able to exclude from the panel all those who were known to be incompetent or disaffected, but no choice was now left them. He observed that Lord O'Hagan had stated in "another place" that the qualification as originally provided in the Bill was considerably reduced in the House of Commons after it had left the House of Lords. As a matter of fact, he found that the Bill reached the House of Commons at the fag end of the Session—on the 7th of July—when the House had been exhausted by the debates on the Ballot, that it was read a second time on the 18th of July between 1 and 2 o'clock in the morning, and that it passed through Committee at about 2 o'clock on the morning of the 21st of July, when some Amendments were introduced without Notice. He did not mean to defend the qualifications in the Act of 1833, though they were good so far as they went; but he could not help protesting at the way in which so important a measure as this had been smuggled through the House. With respect to the nature of the qualification of jurors under the Bill, there were no less than five different qualifications, producing a most extraordinary and whimsical state of things in different parts of Ireland. The qualification for urban voters—the voters in cities, towns, and villages—was in 11 counties the occupation of premises of the value of £12 a-year. In Leitrim their qualification was £15. In all other parts of Ireland it was £20. For rural jurymen the qualification in any part of Ireland, with one exception—that at Leitrim—was £20. In all parts of Ireland under the new law the administration of justice had been most scandalous. It was no reflection upon the Irish character to say that, because the same changes in the law would lead to the same results anywhere else. Could anything but scandal result from the appointment of incompetent persons to discharge the duties of jurors? He would state a few instances of the evil operation of the present jury law in Ireland. A barrister of many years exrience had written a letter to him stating that a juror who had been summoned to try an important criminal case at Nenagh, when he was about to be sworn said he could not read or write; and several others who had been summoned were equally incompetent. At Kilkenny one of the jurors in an important case, which had occupied the Court for a day, said to a barrister—"Could not your Honour get me let off, as I have been brought from a distance of 50 miles, and cannot read or write; nor do I understand a word of what is going on." At Clonmel a number of old men begged to be excused for similar reasons, and some of them had to pawn their coats and other garments in order to maintain themselves whilst they were in attendance as jurors. The Act, therefore, operated very hardly in the case of the poor man. In another place at the opening of a trial one of the jurors said that, on hearing a case the previous day, he thought the first counsel right until he heard his opponent, and then he did not know which was right. He wished to know whether the same thing would occur in the case then before them. The Judge and Mr. Butt informed the juror that he would have to hear both sides, and decide with which the truth lay. Thereupon the juror observed that he and his fellow jurors would decide according to their consciences, but that it was of no use making long speeches. [A laugh.] These cases had a ludicrous side, but they grievously affected the administration of justice. We could not afford to have the law brought into contempt in Ireland. At the Tipperary Assizes a man who had been sworn, and who could neither read nor write, was discharged by Chief Justice Whiteside because he had been appointed foreman of the jury. In one case, on a trial for murder, one of the jurymen was quite drunk, and another was a returned convict, who had served his seven years. In another case the Judge said the jury had forgotten the obligation of the oath they had taken, and, seeing that they gave a verdict of acquittal in spite of the evidence, he was obliged to infer that they were friends of the prisoner. It was evident that something should be done to remedy this state of things. He believed that all parties were anxious to obtain such a law as would ensure the attendance of jurymen who understood the nature of an oath, and would do their duty according to their oath, and who were competent by education to follow out the pleadings at trials. He thought the best means of obtaining that object would be by way of an inquiry before a Committee presided over by the noble Marquess the Chief Secretary for Ireland; and he rejoiced to think that such an inquiry need not take up more time than would be necessary to put a stop to the present disgraceful state of things. He thanked the House for having listened to the details he had brought forward, and concluded by moving for the Select Committee.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "a Select Committee be appointed to inquire into the operation of the Act 34 and 35 Vic. c. 65, Juries (Ireland) Act, and whether it is necessary to amend the same in order to secure the due administration of justice,"—(Mr. Bruen,)

—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


while satisfied that the object of the hon. Member for Carlow (Mr. Bruen) in bringing forward this subject was to secure the proper administration of the law, could not agree with him in his opinion that the result of the present system was lamentable and dangerous. The great object of the change in the law that had been effected by the Act in question had been to take away from the Sheriff the unlimited power he formerly had of selecting the jurymen at his own discretion. Nine Bills had been introduced at different times on this subject, and in 1858 Chief Justice Whiteside—then Mr. Whiteside—in introducing his Bill taking the discretion from the Sheriff, said the result would be to make partial juries impossible and to convert the Sheriff from a judicial into a Ministerial officer. He (Mr Heron) believed that had been the result of the present Act of Parliament, and that the alteration was absolutely necessary, the state of the jury lists as returned by the different Sheriffs rendering it imperatively necessary there should be a change in the law. There was no doubt whatever that there had been a well-founded opinion in Ireland that trial by jury was not impartial. Under the old law there had been a constant struggle on the part of the Conservatives to have their causes tried by special juries, it being well known that the majority, if not the whole, of the special jurors were Conservatives and Protestants. At one time, when a man once got himself placed on the jury list it was impossible to remove him from it, and the consequence was that a number of persons made a regular profession of serving as jurors. The majority of those persons, of whom there were about 120 altogether in Dublin, were Conservative in politics and reduced in circumstances; they were well known, and during the sittings they never left the precincts of the Court, and the result was that they tried nearly the whole of the cases. He did not wish to say anything against a by-gone system; but he might mention that such jurors were known by the name of "guinea pigs." The power of the Sheriff in making out the jury panels was very large under the old system, as the Sheriff practically put any one he chose upon the panel, and in the case of John M'Kenna, a Roman Catholic, who was tried for the murder of a Protestant at the Monaghan Spring Assizes in 1869, the panel was challenged on the ground—in the old language of the law—that The High Sheriff wilfully and maliciously arrayed the panel unindifferently, with intent to prejudice the prisoner on his trial for life. That challenge was tried, and, the Sheriff being found guilty of partiality, the panel was quashed, the chief ground on which the decision was given being that scarcely any Roman Catholics were put on the panel, which was virtually composed of members of the Orange Lodges of Monaghan. The result was that all the prisoners for trial—120 in number—had to be let out on bail to the next Assizes, and yet, at the Summer Assizes, the Sheriff returned the very same panel. In the end the Government, acting on the advice of the then Attorney General (Mr. Sullivan) deprived the high Sheriff of his office, and in some of the cases for trial the venue was changed to ad- jacent counties. Evidence had also been given before the Select Committee which had been appointed to inquire into the alleged unlawful assemblies in Westmeath to the effect that sub-Sheriffs were frequently influenced in the selection of jurymen by the prisoner's attorney. It was evident, therefore, that before the passing of the Act in question the Sheriff or his deputy had power to show partiality in the selection of the jury panel. In the county of Cork better juries had never been returned than at the late Assizes, and there had not been a single failure of justice. The same remark applied to the county of Kerry. Mr. Justice Fitzgerald, indeed, had said that on the Munster Circuit, gentlemen of property who had been summoned as jurors did not attend as was usual before farmers and persons of inferior position in society were called upon to attend in that capacity, but he hoped anything of that kind would never again occur. It should be borne in mind that the present system had been in existence for only one Assizes, and that many persons wore summoned who, not having acted as jurors before, were probably somewhat awkward in a Court of Justice. One of the great advantages of the present system under the new law was that it brought landlords and tenants a great deal more into personal communication, and in that way was productive of considerable good. The hon. Member for Carlow had referred to a case in Nenagh in which a juror under the new system was found to be intoxicated. No doubt that juror was guilty of great misconduct, but the case did not stand entirely alone, for in every book of legal anecdotes numerous cases of that nature would be found to have happened in England and Ireland, as well as in Scotland. In another case that the hon. Member had referred to, where a juror had asked if he was to be influenced by the speeches of counsel, and the Judge had told him not to mind the lawyer's statements, but to find a verdict on the evidence, according to his conscience, he (Mr. Heron) believed that the juryman had taken a most proper course in putting the question to the Court, and that such a juryman would give an honourable and conscientious verdict. A great lawyer had stated that the system of serving as jurors in England had been one part of the education of the people of Eng- land, and it was now for the first time extended to the people of Ireland, instead of being confined to one privileged and limited class. He believed that, upon the whole, jurors had performed their duties impartially. No doubt there was one portion of the existing system which might be improved; he referred to the system of rating in some of the agricultural districts of Ireland. £15 householders in cities and towns were almost certain to be well qualified for jurors; but in some of the agricultural districts the present rating system needed alteration. He would add, in conclusion, that the Bill would, in his opinion, effect one of the objects which according to Lord Bacon ought to be one of the objects of a Court of Justice—it would satisfy the people that justice had been done—which could never be the case while they were excluded from being the judges of facts; for in Ireland there had been perpetual contests about the constitution of juries down to the time when Lord Denman had declared that, under certain circumstances, trial by jury must be regarded as "a delusion, a mockery, and a snare." The present system might be capable of improvement, but he hoped that Parliament would never again intrust sub-Sheriffs with unlimited discretion to summon juries as they pleased; on the contrary, that every man would be summoned in turn, and that all, gentle and simple, would meet together in Courts of Justice.


said, nearly the whole of the remarks of the hon. and learned Member who had just spoken had been in condemnation of the Juries Law, as it existed prior to the passing of the late Act, but there was no doubt that the law was in a very bad state, and probably there was not one Member who would not sanction some reform of it; but that was no proof that the present law was efficient or satisfactory. He could corroborate most fully what had fallen from his hon. Friend the Member for Carlow (Mr. Bruen) with respect to the numerous failures of justice which had occurred throughout Ireland. The Grand Jury of the County of Leitrim, at the last Assizes, had expressed, he might add, an opinion to the effect that persons were summoned as jurors who were illiterate and unfit to perform their duties in that capacity. As an illustration he might mention the case of a man who had been tried for perjury, in which five jurors, after finding him "Guilty," the next morning came to the Judge and said they had changed their minds, and they wished to find him "Not Guilty," adding, at the same time, that they did not understand anything at all about it. Everybody else, however, had no doubt as to his guilt. All were of opinion that he richly deserved his sentence. There was another case, in which a man had been charged with robbery and the jury found him guilty of a common assault, which the Judge observed was the queerest name for robbery he had ever heard. He would simply add that there was a Bill before the House called the General Valuation Bill, the effect of which would be to raise the present rating of 115, which gave a qualification to serve as a juror, to £18, while £12 rating would be raised to £15, which would make other men, still more unfit, liable to serve in the future. That was a point which, in his opinion, ought to be referred to a Committee, which would sit to consider the merits of the case. He had much pleasure in supporting the Motion.


said, he was obliged to the hon. Member for Carlow (Mr. Bruen) for having brought the subject forward on an evening which was generally devoted to the Motions of private Members, although he, on the part of the Government, had announced it to be his intention to deal with it.


said, the Notice he had given to move for a Select Committee had been mentioned before the noble Marquess had stated that he meant to propose the appointment of a Committee.


said, he was aware that the Notice had been given a few minutes before he had announced the intentions of the Government; but the hon. Gentleman, knowing what those intentions were, made use of his influence with his Friends to withdraw the Motions which preceded his on the Papers. But be that as it might, his Order of Reference would limit the inquiry to the operation of the Act of 1871. Now, although he was willing to admit that that Act might require alteration, the Committee ought, he thought, to have power to investigate the jury system previous to its passing, and the principles upon which it ought, if necessary, to be amended. He should therefore, propose to substitute for the terms of the Motion the words, "to inquire and report as to the working of the jury system in Ireland before and since the passing of the 34th Victoria, and whether any, and what, amendments should be made in that Act, with a view to the better administration of justice." The speech of his hon. Friend the Member for Tipperary (Mr. Heron) relieved him, he might add, from the necessity of saying on the subject a good deal which he might otherwise have thought it expedient to lay before the House. His hon. Friend had shown that a Committee of that House, consisting of men of the greatest weight and whose judgment was entitled to great respect—the late Sir James Graham being one of them—having inquired into the state of certain counties where outrages and crimes had been extremely frequent, gave it as their opinion that the Irish Jury Law was one of the matters which required amendment with reference to the disturbed condition of those counties. His hon. Friend had also shown from the evidence taken before the Westmeath Committee that, in the words of a most experienced authority on the subject, the state of the jury panel in that county was "perfectly frightful." He had also quoted the case of the county of Monaghan, where the grossest partiality on the part of the Sheriff and sub-Sheriff was proved, and the state of the jury panel to try party cases was such as could not be expected to give confidence to one of the parties concerned. Another proof of the unsatisfactory state of the former jury system was afforded in the county of Cavan, where a prisoner was tried three times for murder; the jury every time disagreed, and after the last trial an application was made for a change of venue to some other county. Several of the jurors would not find the prisoner guilty because they were apprehensive that if they did so they would suffer injury to their persons or property; and in that case Chief Justice Whiteside and Mr. Justice Fitzgerald did not deem the jury panel of the county of Cavan to be in a proper condition. The Act of 1871 sought to amend the Jury Law by the introduction of three principles—firstly, by substituting for the existing qualification—namely, a freehold and leasehold one—a rating qualification, secondly, by intrusting to the clerk of the union and the poor rate collector the preparation of the jury list; and thirdly—and most important of all—by taking away from the Sheriff, from the sub-Sheriff, or (as in some instances) from the sub-Sheriff's clerk, the discretion of choosing the panel, and making the Sheriff choose it impartially from a juror's book. Those three principles had all been admitted by every Government and every law officer who had attempted to amend the law on that subject on either side of the House. Since the Report of the Committee to which he had referred there had been no fewer than nine such attempts made, and the majority of these Bills contained the principle of practically terminating the Sheriff's discretion, and three of them—those introduced by Chief Justice Whiteside—took away all discretion from the Sheriff in selecting the jury panel. That appeared to him to be a most valuable and important part of the reform of the jury system effected by the Act of 1871, although the hon. Member for Carlow had devoted the greater portion of his speech to an attack upon that provision. It could not be admitted for a moment that any person, however high, should have the power of selecting, at his own discretion, the men who were to try cases affecting the lives and property of their fellow-subjects. It was extremely probable, so far as their limited experience of the Act of 1871 went, that the qualification had been too much reduced and would be required to be raised. That was a matter which would, of course, engage the attention of the Committee; but the Government had ample justification in the proposals of previous Governments for believing that the qualification they adopted in 1871 would be sufficient to secure a fit class of jurors. In the original Bill, Lord O'Hagan proposed a rating qualification of £30, subject to reduction when necessary. The proper limit appeared from the precedents of former Bills to be between £20 and £30. On the recommendation of the Dublin Chamber of Commerce—a body that took a considerable interest in the Irish Jury Law—the qualification was proposed to be reduced to £20 in the City and County of Dublin. In Committee on the Bill in the House of Lords, Lord O'Hagan pro- posed special qualifications in certain counties; in some a twofold qualification of £20 in towns and £30 in rural districts, in the remaining counties—except Leitrim—£20 in both towns and rural districts. The reason why a lower qualification had been adopted for Leitrim—namely, £15—was because with a higher qualification they would not have been able in so small a county to obtain a sufficient number of jurors to provide for a regular rotation, and the same jurors would have had to be called upon too frequently. Precisely the same principle was adopted in the Poor Law Act, and although the Act fixed the normal qualification of a guardian in Ireland at £30, yet that qualification existed in only 8 unions. It was £25 in 45 unions, £20 in 91, £15 in 17 unions or electoral divisions, and below that amount in 23. He did not deny that the Bill was passed through the House at a time when it was not easy to have complete discussion; or that with the assent of Mr. Baron Dowse, the qualification was reduced to £12 in towns, and £20 in rural districts; but the fact that the Bill passed through all its stages in July proved that it must have been generally assented to, because opposition must have been fatal to it at that period of the Session. Even supposing the cases brought forward had not been exaggerated, they could not be held to be conclusive as proving the failure of the measure, for the Act only came into operation this year, and it remained to be seen whether in the first panels the provisions of the Act with reference to the exclusion of incapacitated jurors had been complied with, or whether the right of challenge had been properly exercised by the Crown Solicitors. Assenting with willingness to the appointment of a Committee, he expressed the opinion that inquiry should be chiefly directed to two points—first, whether the qualification fixed by the Act of last year was a proper one, or whether it should be raised; and, second, whether there might not be a more complete revision of the jury lists before the Chairmen of Quarter Sessions. He trusted it would not be necessary—and he did not believe it would—to interfere with the really important part of the Bill, which secured perfect impartiality in the selection of the panels, and the removal of what he considered to be a very mischievous and improper power possessed by the Sheriff of selecting from particular panels of the jury lists; but of course it would be competent for the Committee to enter into a discussion of the whole question.


said, that whatever tended to throw light upon the subject would assist the House in framing a measure dealing with the jury law, and having seen some of the jurors under the new system he entertained no doubt that it was absolutely necessary to have a reform in the constitution of the panel. He did not see that there was any necessity for a more extended inquiry than that proposed by the noble Marquess, but no doubt it was indispensable to have that inquiry. He thought it was premature to anticipate the results of the inquiry by indicating any opinion upon any point to be investigated, and he much deprecated limiting the range of the inquiry by the Committee. He anticipated that the Committee would examine the Judges, the Law Officers, and the persons engaged in the administration of the law; and he thought that, until they had their evidence, it was premature to lay down that the jury was to be empanelled in any particular manner, or that there was to be any particular qualification. For his own part, he doubted whether a mere property qualification was sufficient, because he had heard a man who was on a special jury declare that he could neither read nor write. Surely, then, there must be some means of selection. It need not be exercised by the Sheriff; but unless regard was had to something beyond mere property qualification they might find that not one of the jury possessed sufficient intelligence for the trial of a case. He admitted that it was no objection against the Bill that it gave different qualifications, for the rating was not uniform in Ireland; but they would have to ascertain what would enable the administration of the law to be carried on by intelligent jurors. He protested against reference to Liberals or Conservatives in this matter. Such a topic as regarded the constitution of a jury was new to him, and, further, could not be a legal ground of objection. In a jury impanelled by ballot they might have a preponderance of men holding similar political opinions, but were they to suggest to the people that the decision of such a jury would be of no value? God forbid that any idea should be sent abroad from this House that because a gentleman happened to be a Liberal or a Conservative he would not do his duty as a juror. It was not of the slightest consequence what were the politics or what was the religion of a juror; but he must be sufficiently intelligent to understand the legal terms brought into the discussion, the charge of the Judge, and the addresses of counsel. Recently it had been stated that at the trial for the Omagh murder, which lasted 10 days, and turned upon circumstantial evidence, the jury, after retiring, returned into Court to ask whether a man could be convicted of murder unless some one had seen the murder committed. That was not an instance of partizanship, but simply of want of intelligence. It was for the common interest to guard against such occurrences, and therefore he hoped that every means would be adopted by the Committee to ascertain what alterations in the law were necessary.


said, it was at his instance that last year the qualification of jurors in towns was reduced from £20 to £12, because he had obtained Returns which convinced those in charge of the Bill that without such reduction it would in some instances be impossible to obtain a sufficient number of men to constitute a jury. It should be remembered that the reduction of the qualification was not made on the representation of any Member of the House, but on that of the Chamber of Commerce in Dublin. There was no question that the principle of the Act was right. The grand jury of Cork, of which body he was a member, were prepared before the Assizes commenced to pass a resolution condemnatory of the Act in the strongest terms, but having waited till they had experience of its working they passed a resolution merely to the effect that the Act required amendment; and Mr. Justice Fitzgerald in dismissing the panel said,—"I dismiss you, thanking you for your attendance and for the admirable manner in which you have found your verdicts." He quite concurred with what had been stated to the effect that there should be a different qualification of jurors in different counties, but he thought the whole case would be met if the Chairman of the Quarter Sessions had power to strike off the list those who had not the means of attending the Assizes. It was all very well to cry out against a new system, but he believed that the present Act, amended in the direction he had intimated, would command the confidence of all classes in Ireland.


said, that as the Committee was to be granted, any discussion was a waste of time. He would suggest that the Order of Reference should be enlarged sufficiently to allow of evidence being given with regard to the desirability of having unanimity upon juries. That was a question as to which there was a strong opinion in Ireland, and, as he understood, the highest authorities with reference to the working of the jury system were ready to give their opinion upon it. They must beware lest in altering the qualifications very much they might exclude some of the best jurors.


said, it was of great importance that there should not be such an extension of the Order of Reference as would interfere with an amendment of the jury law before the next Assizes.


said, he was glad that the Government had agreed to grant a Committee. The present state of the jury system in Ireland was simply scandalous. For the last 16 years he he had acted as foreman of the grand jury of the county for which he sat (Cavan), and had therefore had some opportunities of becoming acquainted with the subject. Formerly convictions were very difficult to obtain; but now, startling as the statement might appear—murder, he believed, might be committed with impunity in some parts of Ireland. He had given the noble Marquess the Chief Secretary to the Lord Lieutenant notice that he would mention one case which he thought illustrated the operation of the present jury system. A small farmer in the county of Cavan seduced an unfortunate young woman, who was in the family way. She met him subsequently in a market town, and accompanied him into a field, where she was murdered by him, and her body partly hidden. The dreadful deed was witnessed by a man who was at the time in an adjoining field, and who gave evidence which left no doubt on the mind of the grand jury as to the guilt of the accused. The prisoner was tried at the next Assizes, and the same evi- dence was given, but the jury disagreed. Again, he was tried at the next Assizes with the same result, and at the last Assizes there was a third trial and a third disagreement. On inquiring what became of the murderer he was told that his passage had been paid to America by the Government, who had also given him a sum of money. [The Marquess of HARTINGTON said that was not true.] It was satisfactory to hear it denied; he could not believe the report, but it had been publicly stated in the grand jury room. Another case of brutal murder came before the same grand jury, respecting which no doubt could exist in any sane mind. A dispute having arisen between two neighbours respecting a quarter of an acre of bog, the one, who was partially blind, met the other, who was partially intoxicated, and stabbed him 18 times. Five of the wounds were mortal, and the accused having been seen grappling with the murdered man was apprehended shortly afterwards. His brother was taken with him, upon which he said, "He did not do it; what was done I did." Here was a positive confession in addition to eye witnesses of the act. The Judge who tried the case was Baron Dowse, who charged the jury to the effect that that was murder, and nothing else. The Judge charged them at five in in the evening, and the jury were locked up till ten o'clock next morning, and then they were discharged. What more monstrous failure of justice could be conceived? The hon. Member for Cork (Mr. Downing) said the people of Ireland had confidence in the Act. That opinion did not coincide with his experience. He had still one other case. An ex-policeman who had been active in apprehending Fenians was followed by two rough men from a market, one of whom felled him with a club by a blow sufficient to fell an ox. The ex-policeman was taken to the hospital, and died in three days. There were eyewitnesses to that act also, but the jury would not convict for murder, and the matter was compromised by a verdict of manslaughter. The case ended by a severe sentence of penal servitude. Certainly, these cases showed that the law could not be administered in Ireland to the satisfaction of the country.


said, that as the noble Marquess the Chief Secretary for Ireland proposed a new form of inquiry for the Committee, it only remained for him to withdraw his Motion, and in doing so to express his thanks to the hon. Members who had kindly enabled him to bring the matter before the House.


regretted the Reference had been extended. It would now be impossible to legislate this year, and murder, robbery, and other crimes would go unpunished in Ireland till next Session. He protested against a country being left in the dreadful state in which Ireland was at present. The hon. Member for Cork (Mr. Downing) might say everybody was satisfied in Ireland, but the fact was none were satisfied but criminals.


protested against the number of jurors in Ireland being diminished.

Amendment, by leave, withdrawn.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.