§ MR. ARTHUR O'CONNORsaid, he had given Notice that he would draw attention to the conduct of Mr. Justice Fitzgerald, at Mary borough, in detaining in custody Peter Dunne after he has been acquitted of the charge brought against him; and to move—
That the action of Judge Fitzgerald in detaining in custody Peter Dunne, after his acquittal on the charge preferred against him, and on account only of a demonstration in court over which the prisoner had no control, was an abuse of authority.Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
§ MR. ARTHUR O'CONNOR, continuing, said, that the subject-matter of his Motion he submitted to the Attorney General for Ireland three weeks ago, and furnished him with a verbatim report of the proceedings which took place from a local newspaper. Peter Dunne was tried before Mr. Justice Fitzgerald for manslaughter on the 3rd of March, and acquitted, the jury taking a very short time to arrive at their verdict. When the verdict was delivered no comment was made by the Judge; but it was 1139 received with applause. Justice Fitzgerald then said—
In consequence of that display I order the prisoner to be kept in custody until to-night, and if there is any more of such conduct I will keep all the prisoners in custody until the close of the Assizes.The answer which the Attorney General for Ireland gave to his letter was that he had seen different reports of the case in The Irish Times and The Daily Express and was, therefore, not prepared to admit the accuracy of the report. But he contended that it was very likely, at any rate, that it was correct; and he would leave it to the House to judge of the fitness or can dour of an answer of that sort. The Attorney General for Ireland went on to say that he entirely disclaimed any duty of replying to the question as to the conduct of the Judge; but he might say that, from what he had reason to believe took place, the learned Judge acted quite legally. In other words, the right hon. and learned Gentleman, although knowing nothing whatever of the circumstances of the case, and not having taken the trouble to make inquiries, was quite prepared to say that Judge Fitzgerald was right. He (Mr. Arthur O'Connor) would contest the legal opinion of the right hon. and learned Gentleman. He denied that the Judge had any right to detain any man against whom no charge was pending, simply because some other persons, over whom he had no control, chose to commit a contempt of Court. Sir William Blackstone, whom the right hon. and learned Gentleman would, perhaps, admit to be an authority, stated that when a prisoner had been acquitted by the verdict of the jury "he should be immediately set at large." The 8 & 9 Vict., c. 114, provided that every person charged with any crime before any Court holding criminal jurisdiction within Great Britain or Ireland who on his or her trial had been acquitted "shall be immediately set at large in open Court." Archbold, in his Criminal Pleadings, stated—If the defendant be acquitted on the merits, he is for ever free and discharged from that accusation, and is entitled to be immediately set at liberty unless there be some other legal ground for his detention.It was not pretended there was any other legal ground for the detention of Peter Dunne. He believed the invari- 1140 able practice was for a Judge, on a verdict of acquittal being handed in, to ask if there was any other charge against the prisoner, and if not to order his immediate discharge; but, whether the Judge so asked or not, the man, if no other charge was pending against him, was entitled to an immediate discharge. Other writers on Criminal Law were to the same effect as those he had already quoted. Whether the Grand Jury had or had not found a true bill did not affect the question. He maintained that it was a violation of the principles of the Constitution to deprive a man of his liberty because of an offence which he had not committed and for which he was not responsible. The persons who committed the offence were punishable by the Judge, who, if he had chosen, might have cleared the Court. He did not accuse Mr. Justice Fitzgerald of malice; but the learned Judge certainly acted in a very splenetic manner with regard to Peter Dunne. He was aware that it was laid down by Lord Coke and other high authorities that a Judge was in no case liable to an action for an abuse of his authority, or for exceeding his jurisdiction. Therefore it was that he brought the matter before the only tribunal which could express an opinion on it. The the terms of his Motion were very moderate.
§ MR. SPEAKERI suppose the hon. Member is aware that his Amendment cannot be put to the House.
§ MR. ARTHUR O'CONNORsaid, he was aware of that fact; but he was anxious to bring the matter, not only before the House, but also before the country, as a protest against an improper and reckless use of power.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said that the hon. Member, in introducing his Motion, with a charming frankness had been pleased to put to the House whether he had been candid in answering a Question which had been put to him. The hon. Member had impeached the character of a Judge who, for learning and integrity, was in the first rank of Judges on the Irish Bench, and was universally respected by the Profession and the country. If the hon. Member was acquainted with the Legal Departments of Ireland, he would not have been so ready to bring forward this matter. The hon. Member had assumed 1141 that his statements were matters of fact. He disputed that assertion. There was no fact before the House; but only the statement of what he might, without offence, describe as an obscure local print. The two Dublin papers which had given accounts of the proceedings did not corroborate the story of the hon. Member. He was, therefore, not prepared to admit the facts. It was not shown that a reporter of the local paper was present, or, if there were one, that he was a competent reporter or a shorthand writer. The hon. Member had displayed a vast amount of burrowing ingenuity. But he had referred to no Irish Statute, and to no book of Irish practice. He had quoted English books of practice, and a series of Statutes which applied exclusively to England, beginning with the 14 Geo. III., which was passed before the Act of Union, and all to impeach the character of a learned and impartial Judge, of whom he had spoken in such terms of discourtesy as could hardly have been expected from anyone. The learned Judge had committed no offence. The mere fact of a series of Statutes being passed was evidence that they were intended to alter an already existing practice. In Ireland the law was that the Assize Commission was one unbroken period of time from the opening of the Assize to the proclamation of delivery. During the whole of that period prisoners remained amenable to the order of the Judge. The mere fact of the verdict being given for acquittal did not, either in England or Ireland, entitle the prisoner to an immediate discharge. The record had to be entered—which had not been done in this case—and until it was entered the prisoner could not be discharged. What took place was, that the verdict was received with great applause, and the learned Judge, in order to prevent a re-occurrence of that, said he would not discharge the prisoner until the rising of the Court, so that, after all, it was a tempest in a teapot.
§ MR. ARTHUR O'CONNORremarked, that the Judge threatened to keep the man in prison until next day, and he did so.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON), continuing, said, the Judge was strictly entitled to do as he was reported to have done when such an indecency 1142 —for it was an indecency—had been committed, representing, as it did, the prevailing feeling in the district against all law and order. The learned Judge, fearing a breach of the peace, was perfectly within his right in acting as he had done; and he himself, in the same circumstances, would not have hesitated to take the same course. In conclusion, he felt it his duty to say that a more learned, a more distinguished, a more upright, or a more fearless Judge than Mr. Justice Fitzgerald did not sit on the Irish Bench.
§ MR. BIGGARsaid, the Attorney General for Ireland had given a high character to Judge Fitzgerald. Others were entitled to hold a different opinion as to the merits of the learned Judge. Judge Fitzgerald was a very able man; but his reputation for impartiality did not stand so high as the Attorney General for Ireland would have the House to believe. The general opinion in Ireland was that Mr. Justice Fitzgerald was an exceedingly warm partizan of the present Government. He was a Privy Councillor, and in that capacity he directed prosecutions; he gave recommendations with regard to the general criminal policy of the Government, and then he tried the very cases based upon his own recommendations. Therefore, in point of fact, Mr. Justice Fitzgerald was prosecutor and Judge.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)Mr. Justice Fitzgerald gives no advice whatever in reference to criminal prosecutions. I, and I alone, am responsible for them.
§ MR. BIGGARsaid, he did not state that Mr. Justice Fitzgerald gave directions in particular cases, but he did say that he gave recommendations to the Government with regard to the general policy of repression in Ireland.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)No, no; the hon. Gentleman is quite in error. Mr. Justice Fitzgerald gives no advice to the Government.
§ MR. BIGGARDid the right hon. and learned Gentleman allege that a Privy Councillor was a perfectly ornamental personage? Did he give no advice at all, nor offer an opinion on any subject whatever?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)The 1143 House will, perhaps, permit me to say that a Judicial Member of the Privy Council is most careful, and the Government are also most careful, that he shall have nothing whatever to say to any matter which comes before him as Judge.
§ MR. BIGGARsaid, that did not alter the case, for although individual cases might not come quite before the same person, that person might have his mind influenced in regard to a case which he might have to try. It was obvious that Mr. Justice Fitzgerald, being a Privy Councillor, and being consulted by the Government, gave recommendation from time to time as to their general policy. He could tell a story about Judge Fitzgerald, which he had from a political prisoner who was tried before him in 1867—namely, Mr. John Cleary—
§ MR. SPEAKERThe hon. Member is now about to discuss the conduct of Mr. Justice Fitzgerald. The House is always very guarded in its language in reviewing the conduct of the Judges of the land; and the hon. Member is now, as I understand him, about to give to the House some hearsay story with regard to that Judge. I am bound to point out to the hon. Member that I think, considering that the House is not in a position to express its opinion on any Motion before it, it is not becoming to the Judge to give hearsay stories with regard to his conduct.
§ MR. BIGGARsaid, that, after this warning from the Chair, he would not enter into the circumstances of the case, but would merely say that, according to his informant, the strongest speech for the prosecution in that particular case was delivered, not by Counsel, but by Mr. Justice Fitzgerald from the Bench. With regard to the particular question before them, he would remark that in Ireland a newspaper which gave an unfair report of the proceedings in a Criminal Court rendered itself liable to prosecution for contempt of Court. If, therefore, the report as to Mr. Justice Fitzgerald was incorrect, the learned Judge had the remedy in his own hands, and it was significant that he had not availed himself of it. It was difficult to see how his action in detaining a prisoner could be defended on any reasonable ground. He would only add that he thought the terms of the Motion which his hon. Friend was precluded from moving 1144 should commend themselves to every fair-minded man in the House.