§ Clause 1 (Special Commission Court).
§
Amendment proposed,
In page 1, line 29, after the word "warrant," insert the words "and which shall be situated in the county or county of a city, as the case may he, in which the offence was committed."—(Mr. Marum.)
§ Question proposed, "That those words be there inserted."
§ MR. MARUMsaid, that, before entering upon a discussion of the Amendment, he thought the discussion itself might be curtailed, or its necessity done away with altogether, if he were allowed to address a few observations to the Home Secretary. The question raised by the Amendment had reference to a change of venue; and the right hon. and learned Gentleman himself, in another part of the clause, proposed to move a Proviso—
That nothing in this section shall empower a Special Commission Court to try a person for any offence, unless a judge and jury in Ireland have jurisdiction to try that person for the said offence.This Amendment was certainly more in harmony with the views he (Mr. Marum) entertained, and was much better than the Bill as it now stood. The Amendment which he had proposed restricted the trial of an offender to the county or city in which the offence was committed, and if the Amendment of the Home Secretary were accepted in substitution, he should propose to add, after the first word "offence" in the Home Secretary's Amendment, further words to effect the object he had in view. The Proviso would then read— 84Nothing in this section shall empower a Special Commission Court to try a person for any offence, in the county or county of a city as the ease may be, in which the offence was committed, unless a judge and jury in Ireland have jurisdiction to try that person for the said offence.He thought it would be a much better place for inserting his Amendment than the place at present selected, and he hoped the Home Secretary would be able to adopt it. It would enable the Special Commission to try an offender at any place at which he could now be tried by an ordinary Commission or by the ordinary law. The Amendment of the Home Secretary would enable the Special Commission to try any person who was at present triable in the ordinary course of law by an Irish Judge and jury; and the addition he proposed to add would simply restrict the venue to the locality in which the offence would now be tried under the ordinary law. Ho wished to point out to the florae Secretary, if the right hon. and learned Gentleman saw his way to the adoption of the principle ho (Mr. Marum) advocated—namely, that there should be a locality in the venue—that this would be the best mode of carrying it out; and he should, in that case, feel disposed to withdraw the present Amendment, and wait until the one of which Notice had been given by the right hon. and learned Gentleman was brought forward. When it did come on, he would move the addition of these words. He thought it would be very hard upon poor persons that their witnesses should be required to travel some 200 or 300 miles to give evidence in their behalf.
§ SIR WILLIAM HARCOURTsaid, he quite agreed with the hon. Member that it would be more convenient to discuss this proposal when his own Amendment came before the Committee; but he was afraid that it would only mislead the hon. Member if ho were to hold out any hope that he should be prepared to accept the proposal. As he had explained on Friday, the object of his Amendment was altogether a different one. It was suggested that it was not made sufficiently clear in the clause that the jurisdiction of the Special Commission was only to be such jurisdiction as could now be exercised by a Judge and jury in Ireland. That having always been the intention of the Government, they desired to make the matter 85 perfectly clear, and he proposed to introduce the Proviso of which he had given Notice at the end of the clause. The hon. Member for Kilkenny (Mr. Marum) wished to go further, and to say that the principle of localizing the trial should be enforced in this particular case. He would venture to point out to the hon. Member that the whole reason why the Government proposed to create a special tribunal at all equally militated against the adoption universally of any principle in regard to the locality of the crime. It might happen that at the place where the crime was committed they would not be likely or able to secure a fair and impartial trial because the district might be in a disturbed state, and popular feeling and prejudice might deter witnesses from coming forward to give evidence on the part of the Crown. Witnesses residing in the district might be under influences that would make them afraid to give evidence. He did not mean to assert that in all cases that would be so; but it might be in many, and the Government were bound to make adequate provision to prevent witnesses from being intimidated. Of course, the Government would have no inducement to change the venue unless there were special reasons which rendered such a course necessary. The power would only be exercised in cases in which it was felt that it was impossible to obtain a fair and impartial trial in a particular county or in a particular district, and in such a case the Judges would have power to sit elsewhere. He certainly should not like in this Bill to exclude the possibility of that course being taken, and adequate provision would always be made to prevent injustice being done to the accused person.
§ MR. HEALYsaid, he wished to put a question, if the right hon. and learned Gentleman the Home Secretary would give him his attention. In the case of a warrant being issued, would the right hon. and learned Gentleman give a pledge that it should not be issued for the trial of prisoners until the Crown were quite ready to proceed with the trials? This was a matter which the right hon. and learned Gentleman the Attorney General for Ireland was fully capable of appreciating. Either the Attorney General for Ireland, or whoever was responsible for the trial, would know whether the Government were ready to 86 proceed with it. This was no sentimental grievance; but already the Government had acted in the worst possible manner in regard to these political prosecutions. Only at the last Winter Assizes at Cork the Government brought up some 60 persons for trial; and after keeping them in Cork Gaol, with their witnesses, to the number of 300, hanging about the purlieus of the gaol for many days, they decided upon postponing the trials. It was all very well for the Home Secretary to say that the expenses of the witnesses in such a case were paid by the Government. That was no answer to the complaint, because it was well known that the Crown never paid the absolute expenses to which a witness was put. He had said that 300 witnesses were brought up at the last Winter Assizes to give evidence in regard to certain alleged movements in the county of Cork; but he found that the number was nearer 400 than 300. He held in his hand a statement to that effect, drawn up by the solicitor for the defence, who was further prepared to prove that the evidence against the prisoners had been got up by a common informer, who had himself committed both perjury and wilful murder. Would the right hon. and learned Gentleman give a guarantee that he would not allow words to be inserted in the Bill which would prevent a similar occurrence in future, and provide that the warrant of the Lord Lieutenant should not be issued until the Crown were ready to go to trial?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, it would be impossible to do to that, for this reason. A case might be perfectly ready for trial, and yet the Crown might be unable to proceed with it in the absence of a material witness through illness. But no trial would be postponed by the special tribunal except upon affidavit that from some adequate cause it could not take place. In a case of that kind it would be for the Judges to decide whether the trial was to be postponed, and the three Judges would have to be satisfied on affidavit that the application for a postponement was a reasonable one, and that it was absolutely essential for the interests of justice that the trial should not be proceeded with. The absence through illness of a material witness for the defence would be as good 87 ground for postponing the trial as the absence of a witness for the prosecution.
§ MR. HEALYsaid, the right hon. and learned Gentleman would probably recollect the case of the 60 men referred to at Cork, and the 300 witnesses there. In that instance all that the counsel for the Crown said was that they were not ready to go on with the case. He certainly thought that was not a sufficient answer. If, as a general rule, an affidavit was required in order to obtain the postponement of a trial, he presumed that the Government would have no objection to agree to an Amendment to the effect that no trial should be postponed of any man mentioned in the warrant unless upon a sworn affidavit.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, that was the regular practice now. He thought the hon. Member was under a misapprehension in reference to the case at Cork. His recollection was that the postponement was made on affidavit, stating facts which showed that in the interests of justice the trial ought to be postponed.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he was unable to recollect; but what fixed the matter in his mind was, that there was one indictment which included all the cases, and thus one affidavit was made applicable to the whole of the cases. Otherwise it would have required as many affidavits as there were prisoners for trial.
§ MR. HEALYasked if the right hon. and learned Gentleman would have any objection to put that in the Bill, and provide that where a warrant was issued for the trial of any prisoner there should be no postponement on the mere ipse dixit of the Crown Prosecutor?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he did not think that the case the hon. Member wished to guard against could possibly take place. There must be an affidavit, and the Judge must be satisfied that in the interests of justice the trial could not take place.
§ MR. T. C. THOMPSONsaid, there was another point of some importance. Was the warrant issued by the Lord Lieutenant to supersede the warrant of general gaol delivery? Suppose that a 88 person was in custody, and the Judge came round on a general gaol delivery, would he not be authorized to try that person, or could the trial be held over for an indefinite period? He should like to have that matter made clear, because any person in custody charged with an offence, at general Common Law, had a right to be tried at a general gaol delivery.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he was able to answer the question the other way. The General Gaol Delivery Commission would not supersede the warrant of the Lord Lieutenant for a Special Commission.
§ MR. PARNELLasked what rule the Government proposed to adopt in such a case in reference to the payment of witnesses? Would the same rules with regard to the payment of the expenses of witnesses be adopted as those which were adopted in the case of an ordinary Winter Assize?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)replied in the affirmative. He believed that the intention was that the principles of the rules in regard to a Special Commission should be those applicable to the case of a Winter Assize. Where the witnesses were brought out of their own county for the purpose of trial, it would be necessary that the expenses of the witnesses both for the prosecution and the defence should be paid.
§ MR. PARNELLsaid, he wished to draw the attention of the Committee to the manner in which the rules had worked in the case of the last Winter Assizes at Cork, and the Committee would then be able to judge what it was they were now asked to sanction. Under this clause the Bill gave power to try persons for certain offences in an exceptional manner. The poor people who might be accused were either innocent, or they were not. Of course, the law presumed that every man was innocent until he was proved guilty. These poor people might be taken out of their own county, and, with their witnesses, compelled to attend in some distant part of Ireland; and what was now asked was that that course should not be taken, but that they should be tried in their own county. He was surprised that the Government did not agree to the very reasonable Amendment which had been 89 proposed. If the right hon. and learned Gentleman the Home Secretary refused to give in upon so very small a matter, he could not see what hope there was for hon. Members who sought to amend the Bill in more important particulars. The course now taken certainly presaged very badly for any material alteration of the Bill, seeing that the Home Secretary refused to give way on so small a point. He wished to call the attention of the Committee to the experience which was gained in reference to the Winter Assizes Act at the last Munster Winter Assizes; and, indeed, at all of the Winter Assizes in Ireland. In doing so, he wished to state his own opinion, that last winter that Act was grossly abused by the Crown Prosecutor. It was used for purposes for which it was never intended. It was originally intended to be a merciful Act—an Act for a general gaol delivery. The Act itself was passed by Sir Colman O'Loghlen—a lawyer of considerable experience, and a most humane man—who brought it in for the purpose of preventing the unnecessary detention of prisoners in gaol for an indefinite period. But the Act had been used by the Crown in Ireland, not for a gaol delivery, but for the purpose of getting rid of bail cases; and particularly for the purpose of bringing about a change of venue. That power they now sought to deprive the Government of in reference to this Bill. What took place at the Munster Assizes? Scores of persons were brought into Cork from all parts of Munster. They were detained in Cork Gaol for weeks and for months, away from their friends; and they were, consequently, deprived of the merciful provisions of the 13th section of the Prisons Act of 1877, which the right hon. Gentleman the Member for South-West Lancashire (Sir R. Assheton Cross) would very well recollect. Prisoners awaiting trial were to be treated differently from convicted prisoners, and were to be allowed to feed themselves. But one of the consequences of the working of this Winter Assizes Act was that these persons were taken away to a distance from their homes, and from their friends; and, therefore, it became impossible to feed them, and they were compelled to live upon prison fare. And not only that, but all the witnesses who were necessary for the defence were left for weeks in the city of Cork without 90 any support from the Crown. These people—these poor, humble witnesses—were obliged to pay their own fare from different portions of the Province of Munster. They were not only obliged to do that, but they were also obliged to pay for their own sustenance when they arrived in Cork; and they were not even informed by the Crown at what period, or at what approximate period, it was likely their case would be brought on. Some 400 witnesses were kept in the city of Cork previous to Christmas, day after day and week after week, at their own expense, without the Crown being willing to grant them one farthing. In point of fact, the Crown absolutely refused to grant them 1s. towards their support. Nothing whatever was paid by the Crown until Christmas. The state of affairs then became too hot for the right hon. and learned Gentleman the Member for Mallow (Mr. W. M. Johnson). They had been kept there without any sustenance from the Crown, and the Crown Solicitor then sent to tell them they would not be wanted, although he had previously been repeatedly applied to to know whether the case in which they were interested would be brought on before or after Christmas. The consequence was that many of these poor people, having waited in Cork up to Christmas, were then obliged, on the adjournment of the Assizes, to go home, many of them to a distance of 50 or 100 miles, at their own expense; and to return again, at their own expense, to the adjourned Assizes after Christmas. He knew, also, that many of the witnesses were contemplating going into the workhouse and applying to the Union for relief, because they had been refused support from the Crown. Now, if this portion of the Act, and this power with regard to changes of venue, were to be worked in the same way as the Winter Assizes Act was worked, all he could say was that it would inflict the grossest cruelty and hardship upon persons who might be tried before this tribunal, and their witnesses. He could not imagine why the Government should seek to retain this power in the Bill. It was not likely they would ever find it necessary to use it. Why should they retain a power which could only be used for the purpose of inflicting injustice upon untried prisoners—men who were innocent in the eyes of the law—and 91 make it difficult for such prisoners to make proper arrangements for their defence?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, that, in reference to the last Winter Assizes at Cork, he could not understand how the facts could be as they were stated by the hon. Member. There was no reason why they should have been so. Any witness there could at once have applied to the Judge, and, upon convincing the Judge that he was a necessary witness in the case, and that he intended to give evidence on behalf of the prisoner, the Judge would have directed the Crown Solicitor, on the spot, to advance him his necessary expenses. He had known the Crown Solicitor who was concerned in the case all his life, and was able to say that ho was a most competent and able, as well as humane man; and he (the Attorney General for Ireland) was sure that if there had been any miscarriage, and the smallest representation had been made to the Executive Government or to himself, instant redress would have been afforded. Therefore, if the facts of the case were as they had been stated by the hon. Member, it was the fault of the persons themselves who had submitted to very harsh treatment which they ought not to have undergone at all. What the hon. Member asked the Committee now was to force the Government to abandon a portion of the law that was essential to the administration of criminal jurisprudence. Generally speaking, persons were tried at the place where the offence was committed. There were very good reasons for that, because all the persons connected with the case were upon the spot. Nevertheless, cases might arise where it was impossible that that could be done. Accordingly, the law provided—and in this respect there was no distinction between the administration of the law in England and Ireland—that where it became necessary, what was technically called the venue—that was to say, the place of trial—should be changed. There was express power in the Courts, both in England and Ireland, to change the venue upon a sufficient case being made out for it upon affidavit. It was done frequently, and with that object he had at this moment directed a case to be removed from the county of Kerry to the Court 92 of Queen's Bench. In that case if the venue was changed express provision would be made, not by an order of the Judge, but in the ordinary administration of the law for the payment of the expenses of every witness who might be necessary for the defence of the prisoners, who were unable to bring up their own witnesses, whether the prisoners were convicted or not. There was, therefore, not the slightest necessity for making any change in the Bill in regard to the payment of the expenses of any wit-nesses who were necessary to establish the defence of a prisoner. Of course, he took it for granted that the general law would be followed in all these cases. As far as possible the cases would be tried where the offences were committed; but if local circumstances existed which rendered that inadvisable, if, for instance, the state of the country was such that terrorism could be exercised, and they could not expect persons to come forward to give evidence under personal apprehension, it would be necessary to try the case elsewhere, and that could not be done without changing the venue. But in all such cases provision would be made to indemnify the witnesses for any additional expense entailed upon them by the change of venue.
§ MR. PARNELLremarked, that the right hon. and learned Gentleman had entirely begged the question. No objection was raised to the ordinary law as it stood. The ordinary law required an affidavit to be made before the Judge, before whom the case was sent for trial; but in this case it was left entirely to the Lord Lieutenant to decide whether the Commission should be issued, in the first instance, in the locality or county to which the prisoner belonged, or whether it should be issued in some entirely different county. Now, that was altogether a different case. Let the Commission be issued, and if there were any prisoners to be tried by the Commission, then let the application be made in the ordinary way, and if it were considered a fair application the Judges themselves would change the venue. But here the Government sought to do an entirely different thing. They asked that power should be given to the Lord Lieutenant to direct that a Commission should be issued wherever His Excellency pleased for the trial of a prisoner, no matter what part of the country he belonged to; 93 and it was only natural to suppose that the Lord Lieutenant would be very much guided by the convenience of the official class of Ireland who were to take part in the trial. He could well understand, in the case of a Commission being issued for the county of Mayo, that the Lord Lieutenant might consider it more convenient for the officers connected with the law to hold the Commission nearer Dublin, in the absence of any good hotel in Mayo, and the general discomfort which would unfortunately exist in that poverty-stricken county. It was only natural that everybody connected with the administration of the law should desire that they should not be taken down to Westport or Castlebar for the purpose of sitting upon a Commission for the trial of these offences. If the right hon. and learned Gentleman would leave it, as he stated just now, to the Judges themselves assembled on the Commission to decide whether the venue in particular cases should be changed or not, he (Mr. Parnell) would have no objection in the world; but he did object to give this summary power to an official class in the Dublin Office of the Lord Lieutenant, believing that it was a power that was liable to the most extreme abuse. If the power were given at all, it was a power that certainly would be abused; and he could foresee the immense hardship that would be inflicted upon a large number of poor and humble persons, who might not be in a position to advance the expenses that would be necessary for their witnesses. The right hon. and learned Gentleman had not ventured to say that the money would be advanced beforehand. On the contrary, he said that a case would have to be made out to the satisfaction of the Judges that all these persons were necessary as witnesses. But all the expenditure would have to be incurred in the first instance; and in what position would a poor person be to defray it? What he contended for in this case was that the decision in regard to the change of venue should be practically in the hands of the Judge, and not left to the arbitrary will of the Lord Lieutenant.
§ SIR WILLIAM HARCOURTsaid, he quite agreed that when a case was removed for trial from the county in which it occurred, it should only be upon a direct application to the Judges, upon a sworn affidavit, that the removal was 94 necessary in the interests of justice. There might be cases in which the state of circumstances was such that it was absolutely necessary to leave a discretion somewhere, in order to insure a fair and impartial trial. He was bound to say that two voices were heard from hon. Gentlemen below the Gangway on the opposite side of the House. It was said in the first instance, that there was too much power given to the Judges; but now an Amendment was proposed that it should be altogether left to the Judges to say whether or not there should be a change of venue. The view taken by the Government in the matter was exactly that which induced them to oppose the Amendment, which proposed to give to the Judges the power of deciding whether or not a warrant for a Commission should issue at all. The reason why the Government opposed that Amendment was that a knowledge of the state of the country was necessary, and must be in the mind and breast of the Executive; and the Executive must be held responsible for acting properly upon that knowledge. If they transferred that responsibility to the Judges, they would defeat the control and responsibility of Parliament, which hon. Members opposite alleged to be so very desirable. They could make the Lord Lieutenant responsible; but they could only make the Judges responsible by addressing both Houses of Parliament to receive them. Therefore, if they wanted responsibility for the exercise of this extraordinary power, they must keep it with the Executive, and not transfer it to the Judges, because otherwise they would lose all control over it. The same reason that induced the Government to refuse the Amendment upon the question of the issue of the warrant equally induced them to refuse this Amendment because the same statement of facts which justified the issue of a warrant for a Special Commission would justify the removal of a trial from a disturbed district, where the witnesses were not likely to give their evidence without fear of personal consequences. That was a fact which must depend upon the knowledge possessed by the Executive of the state of the district; and it must naturally rest with the Lord Lieutenant, who would be responsible. He could not believe that the hon. Member for the City of Cork (Mr. Parnell) seriously 95 thought that the Lord Lieutenant, or anybody connected with him, would exercise this power for the purpose of inflicting injury upon a prisoner. The power itself was only likely to be exercised in very rare cases, where it was considered impossible to get a fair trial in the district in which the offence was committed. It would be perfectly understood that a case might arise in which it would be dangerous for a witness to go into Court at all, owing to a number of people outside intimidating him. In such a case it was only proper that the trial should be withdrawn to a place where it could be conducted fairly and impartially, and efficient protection given to every witness. He trusted that the hon. Member opposite would be content with the security that the Government would not be likely to remove a trial, and incur considerable additional cost, unless it was absolutely necessary, and unless there was a real and substantial fear that injustice might otherwise be done.
§ MR. SYNANsaid, he thought the right hon. and learned Gentleman had misapprehended the objection which the hon. Member for the City of Cork (Mr. Parnell) had raised. The objection of the hon. Member was not to the Judges, nor to the decision of the Lord Lieutenant; but it was founded upon this—that in the case of an application to the Court of Queen's Bench, or to any Judge, to remove the venue from one place to another, it was done according to the ordinary law in open Court in the face of the public with due notice to the parties concerned, and with notice to the person who was to be put upon his trial. If the same opportunity were given to a man who might be put upon his trial under this Special Commission, and to all the parties concerned, to approach the Lord Lieutenant and express their views upon the application, then the case would stand upon the same level; but it was impossible to approach the Lord Lieutenant. It was impossible for a prisoner, or his witnesses, or the public to approach the Lord Lieutenant; and the change of venue under this Bill would be carried out in secret and in private. Nobody would know anything about it, and the venue would be removed away from the place where the trial ought to take place, without the knowledge of any of the parties con- 96 cerned. That was the ground of the objection, and it had not been removed by the statement of the right hon. and learned Gentleman the Attorney General for Ireland.
§ MR. O'KELLYsaid, he thought the right hon. and learned Gentleman the Attorney General for Ireland ought to explain how the prisoners were to obtain the first cost of bringing up their witnesses. Take, for instance, the case of a prisoner removed from the county which he represented (Roscommon) to Dublin. If he were a poor man, how was he to obtain the means of bringing up his witnesses, or to show the Court that they were necessary for his defence? Where was the money to come from? What machinery were they going to provide in order to enable a prisoner to obtain the money necessary to defray the first cost of his defence? It was perfectly idle to tell an unfortunate man, placed in such a position, that if he brought up his witnesses and then satisfied the Judges that such witnesses were necessary for his defence, he would obtain the money for the payment of their expenses. It would be utterly impossible for a man to bring up the witnesses in the first instance. There was another point upon which he wanted information—namely, at what intervals were these Commissions to be issued? The Committee were told they were to supersede the general gaol delivery; but he wanted to have some information as to the time a man might be in prison awaiting trial under this Commission. There was another point upon which the right hon. and learned Gentleman the Home Secretary had based the necessity for this change of venue—namely, the intimidation of witnesses. He looked upon that ground as simply absurd, because everybody knew that if a witness was to be intimidated in a district, he would be intimidated before the trial, and not at the moment it was going into Court. Witnesses were intimidated before they went into Court, or they were subjected to violence afterwards; and the change of venue would be no protection at all, whereas the removal of the trial would be a very great hardship in the case of a poor man. It would be absolutely impossible for a poor man to bring up the witnesses that might be necessary, and who might be essential to establish his innocence. It must not be 97 forgotten that in serious cases under this Bill a man might be put upon trial for his life; it was, therefore, desirable that some explanation should be given upon these points. How had they been met? They had not been met except by statements which anybody who knew anything about Ireland knew to be wild and sensational assertions as to the intimidation of witnesses. As he had already pointed out, if witnesses were to be intimidated at all they would be intimidated before they went to the trial, and they would be as much afraid to give their evidence in Cork as in Tipperary. The question was, how were the Government going to protect the witnesses after they brought them back from the trial? He thought that was a most important point, and it had nothing whatever to do with the change of venue. He hoped the right hon. and learned Attorney General for Ireland would be able to answer the question.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he did not quite understand what the question was.
§ MR. O'KELLYsaid, he wished to know how the change of venue was to afford protection in the case of intimidation? The Crown objected to a trial taking place in a particular district, and proposed to change the venue; but his point was, that the intimidation would take place within the district before the trial, or it would assume the shape of an act of vengeance after the witness returned to his home.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, that, on the first point put by the hon. Member, it was only reasonable, where a poor prisoner was tried out of his own county, that he should have his witnesses brought up for his defence. It was not a novel case, but it was a case that frequently occurred; and anybody who knew anything about Ireland would know that, over and over again, the expenses of witnesses were provided for. The witnesses could be brought up by the Crown Solicitor, and no Judge would proceed to try a prisoner without the witnesses he declared to be necessary to establish his innocence being in attendance. It had been stated that a general gaol delivery would not supersede a warrant under this Bill. The Home Secretary, how- 98 ever, would take care that a period of limitation in regard to the trials should be fixed, so that no prisoners should be kept in prison for long periods under colour of the Act; but limited periods would be fixed for appointing the Commission Courts. As to what the hon. Member had said about intimidation of witnesses, every care would be taken to give protection to witnesses who gave evidence at the trials.
§ MR. SHAWsaid, he merely rose to express his regret that the Government had not seen their way to yield to this Amendment. He thought that in a Bill of this kind, which effected so great a change in the present system of Criminal Law, the object of the Government should be to endeavour, as far as possible, to make it run on the lines of the existing law, and in as few cases as possible to remove it from the known and acknowledged rules of law. An application for a change of venue to one of the Courts of Dublin was a very different case to the proposition here made to leave it to the determination of the Lord Lieutenant. If the ordinary law was to be systematically set on one side, the people generally would not place any great amount of confidence in the new tribunal; and, therefore, it would be a wise thing, even for the sake of the Lord Lieutenant himself, that any change of this kind should be based on reasons stated openly, and for which a good account could be given. He apprehended that the question of removing a trial would be very rarely raised. In most cases the trial would be held in the counties or places where the crimes had been committed. It would be unwise, except in very special cases, where there was unmistakably such an amount of disturbance as to prevent an impartial trial from being had, to change the venue at all. He presumed that one of the great objects of the Government was to give force and effect to the Bill. The result of a trial in the locality would be felt and known all round; whereas, if it were removed, say, 100 or 150 miles away, the people living in the locality where the crime was committed would, practically speaking, know scarcely anything of it, and would have the impression that the trial had been carried on almost in secret, as far as they were concerned. He thought the Government would do well to reconsider their 99 objections to the Amendment, and consent to accept it, as it was certainly in the direction of the present Criminal Law.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)contended that the provision of the Bill as to change of venue followed the precedent laid down for England by the Winter Assize Act. The practice in this country was to group certain counties together. A prisoner in Herefordshire was now liable to have his trial removed to Staffordshire without any application in open Court at all; it was done solely by the order of the Executive Government in Council, and it was done in order that there should be no waste of judicial strength. He quite admitted that in some cases it involved hardship upon the prisoner; but that hardship was mitigated as far as possible, and every effort was made to mitigate it. The attention of the House had been called to the matter on several occasions, and every effort had been made to proceed fairly, and to avoid inflicting injustice. No doubt, there might be some inconvenience in certain cases to prisoners by the grouping which took place; but it was considered necessary to follow that course for the sake of general convenience. Indeed, it was not only a matter of convenience, but of necessity, and hon. Members opposite evidently accepted that view, because they only asked that tinder certain conditions the removal should not take place. The proposal contained in the clause was merely to apply to Irish prisoners exactly the same course of procedure in principle that existed in this country.
§ MR. HEALYsaid, the hon. and learned Gentleman had not stated that this power of grouping, to which he referred, applied only to the Winter Assize. He had not made that admission. The present argument of the Government was a most extraordinary one. The Home Secretary complained that hon. Gentlemen in that part of the House were speaking with two voices; but the right hon. and learned Gentleman himself, and the Members of the Government, were speaking not with two, but with 20 voices. In point of fact, they changed their voice every hour. They were basing their argument now on the intimidation of witnesses; but was not a witness as likely to be intimidated before the case went to the Assizes as he was when ho got there? The real 100 point of the Crown was this—they desired to treat a witness as a squeezed orange—to get all the evidence out of him they could, then take him back to his home, if he was willing to go, and leave him to be shot. All they wanted was to bring him up so as to extract his evidence; and having taken him to Dublin, and chambered him with the officials in Dublin Castle, they would send him back again to be at the mercy of a local mob. That was what the argument of the right hon. and learned Gentleman the Home Secretary amounted to. But, going back again to the question of the expenses of witnesses, he believed the matter would turn very largely upon that point. If the Government would give a distinct assurance as to the payment of the expenses of witnesses, and an emphatic pledge that a full opportunity would be afforded to everyone of knowing when the trial would actually be brought on, he believed his hon. Friend would be satisfied. The right hon. and learned Gentleman the Attorney General for Ireland had stated that no practical hardship occurred at the last Winter Assize. At the previous Winter Assize, he (Mr. Healy) happened to be on trial himself, and he saw many persons who were in attendance as witnesses reduced to the extreme depth of destitution, and in danger of starving in the streets. He had been instrumental, personally, in raising a small subscription among his friends to keep them from starvation. The right hon. and learned Gentleman told the Committee that if a witness made an application to the Judge who presided at the Assize it would be promptly attended to. Did the right hon. and learned Gentleman remember that in one case—the case of Sub-Constable Walsh and the Millstreet riots, it took one witness four months, after bringing all the machinery to bear, to obtain the sum of £1? As a matter of fact, he believed that the man's expenses had not been paid yet, but that he had been threatened with a prosecution by the Crown for perjury. He should like to see the face of Judge Fitzgerald if an application of this sort were made to him at any trial over which he presided. Judge Fitzgerald would at once scout such an application out of Court, and tell the man who made it not to take up his time with such an idle matter. The 101 right hon. and learned Gentleman the Attorney General for Ireland spoke of the Crown Solicitor as an amiable, well-meaning gentleman, always ready to listen to any application that was made to him. That might be so; but everybody knew how witnesses were treated in Ireland. No matter what representation they made, and however urgent the case might be, they were invariably put off from day to day, and from week to week. He thought that the trials of prisoners should be taken in alphabetical order, so that witnesses might know when they were likely to be required.
§ SIR WILLIAM HARCOURTsaid, he thought he saw what it was that hon. Members opposite desired, and he would be willing to consider the subject, and to undertake that a clause should be brought up to provide that the trials should be brought on in such a manner as to prevent the necessity for witnesses hanging about the Court. He would also consider whether or not he could insert a provision that in the case of poor prisoners their witnesses should not be kept away owing to the want of means to bring them to the place of trial. If their attendance was required, he thought they ought to be provided with money to enable them to attend where a prisoner had been removed to a distance from the place in which the offence was committed. He hoped that such an undertaking would satisfy the hon. Member for the City of Cork (Mr. Parnell). He did not pledge himself to the exact words of any provision to carry out these objects; but he would certainly bring up a clause having both of these objects in view—namely, to secure, as far as possible, that witnesses should not be kept waiting for an indefinite period, and that the Law Officers should have power to advance money to defray the expenses of witnesses who were considered necessary for the defence.
§ MR. PARNELLsaid, he thought the statement of the right hon. and learned Gentleman the Home Secretary was a very fair one, and he was quite ready to accept it. If there had hitherto been any provision to secure the payment of the expenses of witnesses required for the defence of a prisoner, it had certainly not been carried out; and it was only from the personal knowledge they possessed of the real facts of the case 102 that the Irish Members had felt it their duty to press the matter strongly upon the attention of the Government. He hoped that the right hon. and learned Gentleman would put his clauses upon the Paper a few days before they would come on for discussion.
§ SIR WILLIAM HARCOURTCertainly.
§ MR. O'KELLYtrusted the right hon. and learned Gentleman would attend to the point which he (Mr. O'Kelly) had raised, and which was a most important one—namely, that whenever it was necessary, the witnesses for the defence should receive money beforehand to enable them to proceed to the place where the trial was to take place.
§ MR. M'COANasked the right hon. and learned Gentleman if he would carry his concession one stage further, and provide that the change of venue permitted under circumstances by the Bill should be somewhat analogous to the grouping of counties in connection with the Winter Assizes in England? To remove a trial from Cork to the county of Antrim—and that was not an extreme case—might be the means of imposing great hardship upon an innocent man; and if there was to be a change of venue, it was desirable that the removal should only be to some place within a reasonable distance. By that means not only would the ends of justice be fully answered, but less inconvenience to all parties concerned would be occasioned. In addition, the Government would only be following the analogy of the English practice in regard to the Winter Assizes.
§ SIR WILLIAM HARCOURTsaid, he was afraid he could not undertake to limit the power in every particular case; but he thought no real hardship would result, even if a trial were removed two or three counties off, provided that all the expenses were paid. It would be quite immaterial to a witness whether he had to go to a distance of 12 miles or 50 miles, so long as his expenses were provided for.
§ MR. WARTONsaid, that before it was withdrawn he should like to ask if 103 the matter could not be easily arranged by a clause similar to the 30th section of Russell Gurney's Act, which made provision for the payment of the expenses of witnesses in the case of prisoners committed for trial. If the matter were only mentioned at the time a prisoner was committed for trial, the Crown Solicitor would be invested with authority to pay them.
§ Amendment, by leave, withdrawn.
§ MR. MARUMsaid, the next Amendment was a consequential one, and, after the decision arrived at, could not be moved.
§ MR. P. MARTINhad an Amendment on the Paper, in line 32, after the word "appertains," to insert—
And every such warrant shall specify and set forth the offence or offences respectively charged, with particulars of time and place.
THE CHAIRMANsaid, he wished to point out to the hon. Member that if this Amendment were carried, it would prevent the Amendment, which stood lower down, in the name of the hon. Member for Kilkenny (Mr. Marum), from being put. He did not know whether the hon. Member had observed that.
§ MR. WARTONsaid, he had an Amendment to move before the Amendment of the hon. Member was reached. He wished to move the omission of the words "the charge," in order to substitute the words "any charges." It was quite clear that there might be more persons than one for trial, and it was also clear that against each person there might also be more charges than one. Some such Amendment as this was therefore necessary. The clause, as it stood, empowered the Special Commission Court to sit at the place named in the warrant, and there, without a jury, hear and determine, according to law, "the charge" made against the person committed for trial and named in the warrant, and of doing therein what to justice appertained. His proposal would empower the Court to try "any charges" that might be preferred against any person committed for trial; and he believed that the Amendment was not only necessary, but that it would be a satisfactory one. It was not clear to his mind that it would be sufficient to try a prisoner on a single charge, or oven a single prisoner. There might have been two or more engaged in the commission of the 104 same offence, and there might be more than one charge made against the same person in connection with it. He would therefore submit the Amendment to the Committee.
§ Amendment proposed, in page 1, line 30, to leave out the words "the charge," and insert the words "any charges."—(Mr. Warton.)
§ Question proposed, "That the words the charge' stand part of the Clause."
§ MR. PARNELLsaid, that there was an Amendment on the Paper in the name of the hon. Member for the City of Dublin (Dr. Lyons), which would come before that of the hon. and learned Member for Bridport (Mr. Warton), and which, in the absence of the hon. Gentleman, he (Mr. Parnell) wished to move. The Amendment raised a very important question, and he hoped he would have an opportunity of bringing it before the Committee.
THE CHAIRMANThe hon. Member for the City of Cork (Mr. Parnell) is too late. The Question now before the Committee is that the words "the charge" stand part of the clause.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, the hon. and learned Member for Bridport proposed to substitute the plural for the singular. The hon. and learned Member ought to be aware that in all Acts of Parliament the singular included the plural.
§ MR. WARTONsaid, he was perfectly aware that that was so under Brougham's Act; but he thought it would be better in this case to insert the plural, so as to prevent the possibility of any mistake.
§ MR. HEALYwished to ask a question on a point of Order. The Amendment of the hon. and learned Member for Bridport (Mr. Warton) applied to line 30 of the clause; but the Amendment which his hon. Friend the Member for the City of Cork (Mr. Parnell) desired to move, and which ho (Mr. Healy) thought he was entitled to move, applied to the previous line. He had certainly not heard the name of the hon. Member for the City of Dublin (Dr. Lyons) called by the Chairman.
THE CHAIRMANI did call upon the hon. Member for the City of Dublin (Dr. Lyons), but he did not respond. The next Amendment upon the Paper was a consequential one, in the name of 105 the hon. Member for Aberdeen (Mr. Webster), and I did not call that; but I proceeded to call upon the hon. and learned Member for Bridport (Mr. Warton), who had handed in an Amendment which was not upon the Paper. The Amendment proposed to be moved by the hon. Member for Cork City (Mr. Parnell), therefore, cannot be put now.
§ MR. MORGAN LLOYDsaid, he should like to know, in reference to the question raised by the hon. and learned Member for Bridport (Mr. Warton), whether it was the deliberate intention of the Government to confine the charges against a prisoner to those contained in the warrant? A case might occur in which a person was charged with a particular offence, and committed for trial for that offence. After his committal another charge might be made against him which was not made against him before the magistrate at the time he was committed. It was therefore a subject well worthy of the attention of the Government, whether or not they were determined to shut the door against any charge being made against a prisoner on being brought up for trial except the one which was mentioned in the warrant. It certainly seemed to him that the clause should be so framed as to allow charges of a similar nature to be brought forward at the trial, which might not be known at the time the prisoner was committed. For instance, a case of this description might occur. A man might be committed for trial on a charge of attempt to murder; but it might happen that after the committal, and before the trial, the victim actually died. But murder would not be the charge upon which the prisoner had been committed for trial. The charge against him was only one of attempt to murder, and he must be acquitted of that, because the victim had died. It was very questionable whether, as the Bill was now framed, the larger offence could be proceeded with at all, because it had not been mentioned in the warrant ordering the trial. There ought, therefore, to be an express power to bring forward any other charges for offences committed after the particular offence for which the prisoner was committed for trial. The matter was one which was well worth the consideration of the Committee and of the Government, whether it would be wise to limit the clause to the charge contained in the warrant.
§ MR. WARTONsaid, that, in moving the Amendment, he had the same idea in his mind as that which had been expressed by the hon. and learned Member for Beaumaris (Mr. Morgan Lloyd). It would be seen that if the words "the charge" were omitted from the clause, and the words "any charges" substituted, a prisoner could be tried upon any offence which he might have committed. If the clause remained as it stood, the question raised by the hon. and learned Member for Beaumaris (Mr. Morgan Lloyd) would arise—whether or not, in justice to the prisoner, the trial should be limited to the charge for which he had been committed, and which was specified in the warrant. He was anxious to secure that justice should be done on both sides. The right hon. and learned Gentleman would be aware that the late Lord Chief Baron Kelly ruled that where a man had been acquitted for assault, and subsequently tried for manslaughter, that the previous trial for assault was no part of the trial for manslaughter. He therefore considered that some amendment of the clause was necessary in the direction indicated.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he and his learned Colleagues believed the Bill was perfectly right as it stood. The offence was to be named in the warrant, and the evidence on which it was founded would be the evidence disclosed by the informations.
§ MR. WARTONsaid, in deference to the view expressed by the right hon. and learned Gentleman, he would ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ MR. PARNELLsaid, the previous Amendment having been withdrawn, he wished to move the Amendment standing in the name of the hon. Member for the City of Dublin (Dr. Lyons), which raised a very important question. It raised, in fact, the principle of the clause; and he thought it would be convenient if a discussion were taken on that Amendment on the question as to whether the Committee would sanction the abrogation of trial by jury in Ireland without having first ascertained whether they could not, by means of special juries, obtain convictions. The special jury system was well known. The persons on the panel of special 107 juries were gentlemen of considerable fortune and position, and entirely above the motives which it had been said influenced the minds of persons composing the common jury.
§ MR. MORGAN LLOYDrose to Order. He wished to know whether, as the Amendment of the hon. Member for the City of Dublin had been called and not responded to by him, and that Amendment having been passed over and another moved in line 29 of the Bill, it was now competent to the hon. Member for the City of Cork to go back upon the work of the Committee and move the Amendment of the hon. Member for the City of Dublin?
THE CHAIRMANsaid, if the Amendment had been negatived, it would not have been in the power of the hon. Member for the City of Cork to propose the Amendment alluded to by the hon. and learned Member for Beaumaris. But the Amendment having been withdrawn by leave of the Committee, the last decision of the Committee became the point of departure, and the hon. Member for the City of Cork would therefore be in Order in moving it.
§ SIR WILLIAM HARCOURTsuggested that it would be better to take the discussion which would be raised by the Amendment proposed to be moved by the hon. Member for the City of Cork on the Question "That the Clause stand part of the Bill." It appeared to him that it would be convenient to finish the remaining sub-sections of the clause, the consideration of which need not occupy much time, before the question of trial by special jury was raised; and he put it to the hon. Member for the City of Cork whether he would not proceed in that way. It would be idle, if there was to be a jury, to go throughout the machinery of a Special Commission.
MR. O'CONNOR POWERsaid, he had not quite understood, from the remarks of the right hon. and learned Gentleman the Home Secretary, on what particular point of the clause it would be possible for the hon. Member for the City of Cork to discuss the question involved in the Amendment he had proposed to move.
§ SIR WILLIAM HARCOURTsaid, the opportunity would be presented on the Question "That the Clause stand part of the Bill." What he wished to 108 point out to hon. Members opposite was that if the Special Commission Court was not to sit without a jury this clause of the Bill was not wanted at all, the question of change of venue and other details being about to be dealt with by special clauses. All the rest of the machinery of the clause would, in fact, be found in another part of the Bill; and, therefore, he said that the proposal of the hon. Member which related to the one remaining provision of the clause had better be discussed when the clause was put from the Chair.
§ MR. SYNANsaid, he thought that if the right hon. and learned Gentleman had consulted his right hon. and learned Colleague the Attorney General for Ireland he would have learned that there had been Special Commissions from the year 1789 to the present time without juries. This question of the Commission sitting without a jury was not the sole remaining question involved in the clause. The question in the clause was that of the Special Commission Court.
THE CHAIRMANpointed out that there was no question before the Committee. The hon. Member for the City of Cork should proceed, if he intended to do so, or the next Amendment would have to be called.
§ MR. PARNELLsaid, he was inclined to think that the suggestion of the Home Secretary was a reasonable one—that the discussion with regard to having a special jury should be taken on the Question "That the Clause stand part of the Bill," and would, therefore, not move the Amendment indicated.
§ MR. P. MARTINsaid, that his attention having been called to an Amendment lower down on the Paper in the name of the hon. Member for Kilkenny (Mr. Marum), which expressed in more ample form the principle of the Amendment which he had himself placed on the Paper with reference to the information to be contained in the warrant, he should not unnecessarily take up the time of the Committee by moving the Amendment that stood in his name. Indeed, since he had given Notice of it he was glad to hear that it had been stated that Her Majesty's Government were not desirous of avoiding publicity; but, on the contrary, that they were anxious that the prisoner should have every information.
§
Amendment proposed,
In page 2, line 3, after "Commission," insert "and taken by rotation from the entire number of such Judges."—(Mr. R. T. Reid.)
§ Question proposed, "That those words he there inserted."
§ MR. HEALYremarked, that he had an Amendment to move to Clause 3, which provided machinery with regard to the Special Commission Court, the wording of which was taken out of the Corrupt Practices Act. He thought Her Majesty's Government could not do better than adopt that Amendment, which was to the effect that the Judges of the Irish Courts should meet on or before the third day of Michaelmas Term in each year, and select, by a majority of votes, three of their number for the trial of the offences before-mentioned in a Special Commission Court, under this Act, during the present year. It also proposed that if in any case at their meeting the Judges were equally divided in their choice of one of their number to serve on a Special Commission, the Lord Chancellor should have a second or casting vote, and that in the event of the death or illness of any Judge for the time being on the rota, or his inability to act from any reasonable cause, the Lord Chancellor should fill up the vacancy by placing another Judge on the rota. The right hon. and learned Gentleman was aware that the Lord Chancellorship was a political appointment; and it would be suggested, if the Bill remained in its present form, that he might select for the Special Commission Court three Judges of the character they were, unhappily, so familiar with in Ireland.
§ SIR WILLIAM HARCOURTsaid, he was obliged to confess, speaking for himself, that the arrangement in the Bill was the more convenient arrangement. It was obvious that amongst the Judges there were some who, by their practice at the Bar, and by their health, were more fit than others to go on Special Commissions. On the other hand, he was perfectly conscious of the possibility of its being said that the Judges had been selected on account of their political opinions. If that were so, and a strong feeling of the kind existed, Her Majesty's Government thought that feeling ought to be removed. He was afraid, however, that its removal by 110 having a rota would lead to some inconveniences, because how was that rota to be settled? He did not suppose that, even if the Judges were to settle it themselves, hon. Members would be quite satisfied; and, therefore, he thought, if a rota was to be had, the best way would be to have it taken, as was proposed in a previous Amendment, by ballot, and leave the selection to nobody. He must leave the matter in the hands of the Committee; but, as he had before remarked, he thought the arrangement in this Bill would work conveniently. If the Amendment were pressed the Government were not inclined to oppose it; but, the principle being accepted, he trusted they might, by postponing the matter, be allowed to settle the details of the rotation later on.
§ Amendment, by leave, withdrawn.
§ Amendment proposed, in page 2, line 3, after "try," insert "in open court."—(Mr. Parnell.)
§ Amendment agreed to.
§ MR. MARUMsaid, he had an Amendment to move, the object of which was to provide that the accused person might peremptorily challenge any one of the Judges of the Special Commission Court, and that he should then be tried by the two other Judges. He was aware that this was a serious proposal; but, at the same time, he thought the total abolition of trial by jury was a serious infringement of the ordinary law. In making this proposition he did not for one moment intend to throw the least imputation on the Judges of Ireland, whom he thought could hold a favourable comparison with the Judges of England, and with the Judges of other countries, whether of the Old World or the New. He grounded his proposal on this—that, according to to the Civil and Canon Law quoted in the Codex and the Decretals, challenge of a Judge was admissible. He need not remind the right hon. and learned Gentleman the Home Secretary that the Civil and Canon Law were part and parcel of the law of England, or to quote Bracton and Fleta to bear out that statement, because Irish Members, in the matter for which he was contending, had a higher authority on their side. He admitted that Lord Coke stated that challenges of Judges went out of practice, and that, at the 111 present moment, those challenges were not admissible. With the permission of the Committee, he would read a few lines on this subject from a book which used to be regarded as an authority upon Constitutional matters, and which was quoted a few days ago, in the discussion upon this Bill, by the right hon. and learned Gentleman the Secretary of State for the Home Department. Blackstone, treating of this right of peremptory challenge, said it was a provision
Full of tenderness and humanity to prisoners, for which our English laws are so justly famous; this is grounded on two reasons; as everyone must be sensible what sudden impressions and unaccountable prejudice we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that the prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should he tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such dislike.Now, if juries were to be done away with in Ireland, or in any other part of the British Dominions, it was not an unreasonable thing that we should retain as much of the jury element as possible; and, therefore, notwithstanding the novelty of the proposition he was making, he trusted it would, for the reasons he had given, meet with the favourable consideration of Her Majesty's Government. For his own part, he protested altogether against the abolition of trial by jury in Ireland and elsewhere, and begged to move the Amendment of which he had given Notice.
§
Amendment proposed,
In page 2, line 5, after "trial," insert "Provided always, That any such person may peremptorily challenge any one of such judges, and shall then be tried by the two other judges."—(Mr. Marum.)
§ Question proposed, "That those words be there inserted."
§ SIR WILLIAM HARCOURTsaid, he was afraid he could not accept this Amendment, which would lead to most awkward consequences. Everybody must feel the difference between the case of challenging a jury and that of challenging a Judge, even where the Judge was called upon to act as a jury. He did not think it would be possible for the Judges to act in this case if they were to be subject to this form of challenge; and, therefore, he trusted that, upon further 112 consideration, the hon. Member for Kilkenny would not feel it his duty to press the Amendment.
§ SIR JOSEPH M'KENNAalso appealed to the hon. Member not to proceed with his Amendment, which he could scarcely believe had been seriously put forward by him. In a case in which it was expected that the whole of the three Judges should agree, the leaving out of one of them did not appear to him to be either consistent or in favour of the prisoner. It was not to be supposed that one Judge could carry the other two along with him in spite of their own judgment; and he trusted the hon. Member would not occupy the time of the Committee further in disposing of this matter.
§ MR. MARUMsaid, he begged leave to withdraw the Amendment in deference to what appeared to be the evident sense of the Committee.
§ Amendment, by leave, withdrawn.
§ MR. MARUMsaid, the next Amendment he had to propose had for its object to prevent the surprise of accused persons, and afford them an ample opportunity of getting their witnesses together. He need say nothing more than this in support of the Proviso, which he now begged to move.
§
Amendment proposed,
In page 2, line 5, after "trial," insert "Provided, That fourteen days, at least, before the sitting of any Special Commission Court the Lord Lieutenant, by public proclamation made in the county or county of a city where the offence or offences was or were committed, shall declare the time and place of the said sitting, specifying the names of the persons to be tried, the nature of the several offences of which they are respectively charged, and the names of the judges constituting the Special Commission Court; and, where any such person is in custody, it shall be the duty of the governor or other chief officer of the prison in which he is confined, to furnish him with a copy of such proclamation at the period of the promulgation of the same."—(Mr. Marum.)
§ Question proposed, "That those words be there inserted."
§ SIR WILLIAM HARCOURTsaid, he was happy to be in a position to reciprocate the courtesy of the hon. Member for Kilkenny, by saying that Her Majesty's Government were willing to accept this Amendment. It was, in their opinion, very proper that it should be made known in the county when the trial was to take place, and that every 113 facility should be afforded to those interested in getting evidence in favour of the prisoner. He would, however, ask the hon. Gentleman not to press for the insertion of the Amendment at this particular part of the Bill. It was desirable that this clause should remain purely a Jurisdiction Clause; and with that object Her Majesty's Government were prepared to insert, later on, a clause which would provide for the machinery necessary to the working of the Act. He hoped the hon. Member would be satisfied with the assurance given, which, he believed, would dispose also of a considerable portion of the Amendment next upon the Paper, in the name of the hon. Member for Wexford (Mr. Healy), which the Government were willing to accept, except so far as related to laying the warrant before Parliament.
§ MR. HEALYsaid, he should be happy to abstain from moving the Amendment referred to, on the statement of the right hon. and learned Gentleman.
§ Amendment, by leave, withdrawn.
MR. HINDE PALMERsaid, there was a useful provision in Sub-section 3, that the evidence given on the trial before the Special Commission Court should be taken down by a shorthand writer, who should be sworn to take the same accurately to the best of his ability. In his opinion, the sub-section did not go far enough, and the Amendment he was about to propose had for its object that the reasons given by the Judges in delivering judgment should also be taken down by the shorthand writers, because, where the right of appeal existed, this was of great importance to the parties concerned. It was not his proposition that the Judges should state their reasons, but that their reasons, if any, should be recorded. The Committee would remember that it had been stated in the course of this discussion that the Judges would give reasons according to the usual practice.
§
Amendment proposed,
In page 2, line 7, after the word "court," to insert "and the reasons if any given by the judges in delivering judgment."—(Mr. Hinde Palmer.)
§ Amendment agreed to.
§ MR. M'COANsaid, he had never given Notice of the next Amendment on the Paper, to leave out Sub-section (4), 114 although it stood in his name. Someone had evidently played a very bad joke at his expense.
§ SIR WILLIAM HARCOURTsaid, without wishing to exercise any right of pre-emption in this matter, he must point out that the Amendment standing on the Paper in his name, relating to the cost of conveyance of a person acquitted on trial by the Special Commission Court must, for grammatical reasons, take precedence of the Amendment of the hon. Member for Durham (Mr. T. C. Thompson), which the Government wished to accept.
§
Amendment proposed,
In page 2, line 10, after "conviction," insert "and the judges of the said court shall in all cases of conviction give in open court the reasons for such conviction."—(Mr. T. C. Thompson.)
§ Question proposed, "That those words be there inserted."
§ MR. TREVELYANsaid, the Government accepted this Amendment with something like eagerness, inasmuch as they were extremely anxious that the reasons on which the conviction was founded should be thoroughly known, and the procedure of the Equity Courts adopted so far that the Judge should carefully analyze the evidence before coming to a decision. In the case of acquittal, as had been pointed out, it would rest with the Judges whether they would give reasons or not.
§ MR. WARTONsaid, they were getting into a rather awkward position with regard to the amended construction of this clause. They had adopted the Amendment of the hon. and learned Member for Lincoln City (Mr. Hinde Palmer), that the reasons of the Judges, if any, should be taken down by a shorthand writer, and they were about to add at the end of the clause that the Judges should in all cases of conviction give their reasons. He submitted that the sub-sections affected by these Amendments should be transposed.
§ MR. HEALYacknowledged the value of the provision for having the evidence and the Judges' reasons recorded by a shorthand writer. The Government having settled the machinery for this purpose, he presumed the transcript of the shorthand writer's notes would be available for the Press; and, therefore, he begged to ask in what way it was 115 intended to communicate them to the House and the public?
§ SIR WILLIAM HARCOURTsaid, the records would, of course, be published in the ordinary way, although it was not intended that they should be published in the newspapers, so that if, in any particular case, an hon. Member desired to found his Motion upon a Judgment, he would then have an authentic record instead of a newspaper report which might possibly be inaccurate. That was one of the objects of having a shorthand writer in the present case; but the principal object was that in case of appeal the Judges of the Appeal Court should have an accurate knowledge of the evidence, and the reasons upon which the decision of the Court below was founded.
§ MR. HEALYsaid, he hoped that the right hon. and learned Gentleman would not be unwilling to give a pledge that the shorthand writer's notes would be produced in any particular ease in which it might be desirable to refer to them.
§ SIR WILLIAM HARCOURTsaid, that, as far as he was concerned, he had no objection to give such a pledge.
§ MR. MACFARLANEurged that the judgment of the Court, as recorded in the shorthand writer's notes, should be made available to the public, because it was highly desirable that the public should have authentic information on so important a subject. It was especially necessary that the Irish public should possess this authentic information, in order that they might judge for themselves without waiting until a Return had been moved for in the House of Commons of the reasons given by the Judges for their decisions.
§ Amendment agreed to.
§ SIR WILLIAM HARCOURTsaid, the Government had considered how the case of a person acquitted in a county other than that in which he was committed for trial might best be met, so far as his return home was concerned. They had decided that where the object of the person so acquitted was to get back to his own county, he should be sent there at the cost of the public. He therefore begged to move the Amendment standing in his name, the object of which was to give effect to that decision.
§
Amendment proposed,
In page 2, line 10, at end, add "Where a person is tried by a Special Commission Court at any place beyond the limits of the county in which he was committed for trial, he shall, if acquitted by such court, be entitled to be conveyed free of cost to any place he selects in the county in which he was committed for trial."—(Sir William Harcourt.)
§ Question proposed, "That those words be there added."
§ MR. HEALYpresumed the right hon. and learned Gentleman was not aware, when he put his own Amendment on the Paper, that the Amendment on the same subject of which he (Mr. Healy) had given Notice was taken, word for word, out of the Coercion Act of last year. One would have thought that the Government, being so fond of the Act of last year, would have been willing to adopt this wording. However, the difficulty presented by the Amendment of the right hon. and learned Gentleman was that a man might be committed for trial at one end of a large county and tried at the other, in which case the provision for sending him home free of cost would not apply. In the case of the county of Cork, for instance, a man, after acquittal, might have to travel for perhaps 150 miles through a district in which there were no railways. The expense of this alone would constitute a great hardship; and he was quite at a loss to understand why the Government could not discharge the individual within five miles of the spot at which he was arrested. He thought that the Government should either add words to their Amendment to meet that case, or accept his Amendment, which, as he had before pointed out, was taken from their own Act of Parliament.
§ SIR WILLIAM HARCOURTsaid, he should have thought the words on the Paper implied that a man was not to be put to the expense of having to go home on foot.
§ MR. HEALYurged that the Amendment of the right hon. and learned Gentleman did not come into operation until the prisoner was actually removed from the county where he was arrested. His own Amendment would operate whether the man was removed from that county or not. He repeated that, under the Amendment of the right hon. and learned Gentleman, in the case of Cork, the largest county in Ireland, a man might 117 be taken 150 miles away from the place where he was arrested, and, upon acquittal, have to travel back again, at a very considerable expense, seeing that there was no railway there. If the right hon. and learned Gentleman would say that on Report he would alter his Amendment, so that it should apply even where a person was tried in his own county, he should be willing to agree to it.
§ MR. TREVELYANsaid, he should imagine that a man acquitted under the circumstances indicated in the Amendment of his right hon. and learned Friend was in the position of a discharged convict, so far as the cost of getting home was concerned, and would be treated accordingly.
§ MR. R. T. REIDproposed to add, at the end of the Amendment of the right hon. and learned Gentleman the Secretary of State for the Home Department, the words—
Unless he shall himself prefer to be discharged nearer to the prison in which he was last detained.
§ MR. MORGAN LLOYDsaid, when a man was tried and acquitted he was absolutely entitled to be discharged; and to detain him as a prisoner in any place after he was acquitted appeared to him to constitute a great injustice.
§ SIR GEORGE CAMPBELLpointed out that the Amendment of the right hon. and learned Gentleman contained no such word as "discharged." The words were—"He shall be entitled to be conveyed free of cost."
§ MR. PARNELLsaid, he thought the objection of the hon. Member for Wexford (Mr. Healy) would be met if the right hon. and learned Gentleman would consent to leave out of his Amendment the words— "At
any place beyond the limits of the county in which he was committed for trial.There were undoubtedly counties in Ireland like Cork, in which a man would have a considerable distance to travel in order to reach his home after being tried and acquitted within the county. It seemed to him only just that a man acquitted under this Act should not be exposed to any hardship on the ground of expense.
SIR E. ASSHETON CROSSsaid, it must not be supposed that because a man was acquitted by a special tri- 118 bunal he was entitled to more costs than he would be if he were acquitted by any other tribunal.
§ MR. LEAMYcontended that, in the matter of expenses, a man should be treated exceptionally who was acquitted by an exceptional tribunal. If a man was brought before an ordinary tribunal he would be tried according to the ordinary law; but in the present case he would be tried in a special manner. He thought the principle of the Amendment of the hon. Member for Wexford (Mr. Healy) ought to be accepted.
§ SIR WILLIAM HARCOURTsaid, as the point in question was not a very large one, he was willing to make the alteration in the Amendment suggested by the hon. Member for the City of Cork.
§ MR. MARUMpointed out that, according to the form of the Amendment, it seemed to be assumed that the person had been in custody and tried, and that then, on acquittal, his expenses were to be paid. But he must remind the right hon. and learned Gentleman that there were many cases in which men would be out on bail in their own localities. These, he thought, were entitled to their expenses; and, indeed, he did not see how their claims could be resisted. According to this Amendment, also, it was more likely that the person acquitted would be a bail prisoner than otherwise; and, as the principle was admitted that a man's expenses should be paid when he was brought a long distance from his own locality, he considered that there should be some solatium in the case of persons out on bail in their own localities.
§ Amendment proposed to the said proposed Amendment, to leave out the words, "at any place beyond the limits of the county in which he was committed for trial."—(Mr. Parnell.)
SIR E. ASSHETON CROSSasked the Secretary of State for the Home Department to explain to the Committee on what principle in future the expenses of prisoners, other than those tried under this Act, could be refused to them?
§ SIR WILLIAM HARCOURTsaid, the concession in the present instance was not made on the ground that the prisoner was tried by a Special Commission. If the question were raised with respect to the prisoner's expenses 119 in the case of other tribunals, it would, no doubt, be replied that the provisions of this Bill were of a temporary character, and that the rule with regard to expenses could not consequently form a precedent.
§ Question, "That the words proposed to be left out stand part of the proposed Amendment," put, and negatived.
§ Amendment, as amended, agreed to.
§ MR. MARUMsaid, he hoped the right hon. and learned Gentleman the Home Secretary would take into his consideration the point as to the expenses of bail prisoners in their own localities. He did not wish to put the Committee to the inconvenience of discussing an Amendment on this subject.
§ SIR WILLIAM HARCOURTsaid, he had seen no Notice of an Amendment to this clause dealing with the subject. He must, therefore, take time to consider the question.
§ MR. CALLANwished to add to the Amendment of the right hon. and learned Gentleman just adopted by the Committee words to the effect that a copy of the shorthand writer's notes of the Evidence and the Judgments of the Judges should be supplied to the party accused or to be tried on application to the proper officer. He hoped the Home Secretary would have no objection to allow these words to be added.
§ SIR WILLIAM HARCOURTsaid, this was not, in his opinion, the proper place. The shorthand writer's notes could only be wanted in case of appeal, and, therefore, the Proviso was inadmissible in this sub-section.
§ MR. CALLANsaid, he wanted to have the matter so arranged that the notes might be used for the purpose of appeals. There was no intention that the Proviso should be applied to summary jurisdiction cases; it was only required in cases where a man had been convicted by the Special Commission Court, and meant to appeal. He felt sure the right hon. and learned Gentleman would see the desirability of supplying this most necessary information to the prisoner.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)pointed out that the question raised was one of procedure, whereas this was a clause simply giving jurisdiction. It was desirable, no doubt, where a person was convicted, and an 120 appeal was intended, that the prisoner should have a copy of the Evidence and Judgment to lay before his counsel. His right hon. and learned Friend accepted that view, but considered that the machinery for carrying it into effect would be more properly provided in a clause relating to procedure than in this clause, which was one of jurisdiction alone.
§ MR. CALLANappealed to the hon. and learned Attorney General to point out in the Bill any place at which the Proviso would be more apropos than the present sub-section (4), which said that—
A person tried by a Special Commission Court shall be acquitted unless the whole court concur in his conviction.And the Committee had just adopted the Amendment of the Home Secretary for the payment of a prisoner's expenses in case of acquittal; he only wanted the sub-section to express that, in case of conviction, the prisoner should be furnished with a copy of the shorthand writer's notes of the Evidence and Judgment; and certainly he could see no better place to make the Proviso than he had indicated.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)suggested that the hon. Member should look to page 15 of the Bill, on which the rules of procedure were set out, in the belief that he would find there a much more appropriate place for the Amendment.
§ MR. MACFARLANEproposed to move that a verbatim report of the proceedings of the Superior Court should be available to the public. The Government had admitted the principle in the case of the Inferior Court. It was sufficient that the prisoner alone should have the report.
§ SIR WILLIAM HARCOURTasked the hon. Member for Carlow not to press this matter, because all the ordinary channels of information would be open to the public. Judgment would be entered in precisely the same way as in this country. The hon. Member would have an opportunity of raising his point on the Schedule.
§ MR. CALLANsaid, the Attorney General for Ireland being now in his place, would probably be able to reply more satisfactorily than his learned Colleague the English Attorney General upon the point raised with regard to 121 supplying the prisoner, on conviction, with a copy of the shorthand, writer's notes for the purpose of appeal. He (Mr. Callan) wished that these notes should be supplied to the prisoner immediately he was convicted for the purposes of his appeal—not after he had given notice of appeal. The object was that the prisoner should be able to take the advice of his counsel upon the judgment of the Court. He asked the opinion of the right hon. and learned Attorney General for Ireland as to the propriety of moving the Proviso at this part of the Bill?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)concurred that the best place for the insertion of the Proviso would be found in the Schedule.
§ MR. CALLANasked if the right hon. and learned Gentleman would say that it should be inserted in the Schedule?
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)signified assent.
§ MR. PLUNKETsaid, in the absence and at the request of the hon. Member for East Sussex (Mr. Gregory), he proposed to move the Amendment next upon the Paper. He agreed in the fairness of paying the reasonable expenses of witnesses for the defence, because there was strength in the argument that, inasmuch as the tribunal proposed to be erected by the Bill was an exceptional tribunal, exceptional hardships might be imposed upon the prisoner. To that extent it was fair, no doubt, that the reasonable expenses of the prisoner's witnesses should be provided for. But the case which this Amendment was intended to meet was that of a witness who resided in the same county where the trial was held, and these persons would be put to no more inconvenience or hardship under the Bill than if they were called upon to attend at the ordinary Assizes of their counties. He saw no reason why, in that case, the ordinary practice should be departed from. The question was, from one point of view, rather for the consideration of the Treasury. Still, he put it to Her Majesty's Government to say in what sense the fact of the tribunal being exceptional was to make everything else in the Bill exceptional also. He hoped, if the provision of this sub-section were to be extended to a prisoner tried in a county where the 122 offence was committed, it would not be put on the ground which the right hon. and learned Gentleman the Home Secretary gave at an earlier period in the discussion, because in that case everything in the Bill would be exceptional.
§
Amendment proposed,
In page 2, line 12, after "witnesses" insert "resident out of the county in which the trial takes place."—(Mr. Plunket.)
§ Question proposed, "That those words be there inserted."
§ SIR WILLIAM HARCOURTsaid, in England, under certain circumstances, there might be expenses if a witness was within the county, and the extension given in this Bill was very slight indeed. He desired to make all the allowances under the Bill as liberal as possible, and where he could ease the Bill and make it less oppressive he was desirous of doing so.
§ SIR EARDLEY WILMOTsaid, there was an additional reason for being as generous as possible in the fact that the Bill was taking away the safeguard to prisoners of being able to place their cases before a Grand Jury.
§ Amendment, by leave, withdrawn.
§ MR. T. C. THOMPSONproposed an Amendment with the object of enabling the Government to grant expenses in the case of poor persons charged with treason or treason-felony for the payment of counsel. That proposal, he thought, would certainly appeal to the good feeling of the Committee. He could not agree with the view expressed on the other side of the House that prisoners in such cases were not in a different position from prisoners tried in the ordinary way; but he only proposed to extend this Amendment to charges of treason and treason-felony. Everybody acquainted with the law knew perfectly well what difficulties surrounded the charges of treason or treason-felony, and how difficult it was to define those offences. Unless poor people were provided with counsel they would not be able to meet such charges with a reasonable publicity of escape. It might be asked why they should be placed in a better position now than they were in previously? The reason was this—there was a good old principle of English law, that where prisoners were undefended the Judges should be counsel for them; and that principle had been acted upon 123 throughout our Constitution. It prevailed so far as to form one argument used by the Judges against the prisoners counsel; but now that position was to be destroyed, because the Judges were to be in the position of a jury, and it would be impossible for them, in any sense, to act as counsel for the prisoner. Having put the prisoners in a worse position than before, and taken away the great safeguard of Judges seeing that nothing unfair to the prisoners should be urged, and having left the prisoners undefended, except in so far as they were able to incur the expense of employing counsel, it was only fair, in such cases as these, that the Government should do something in this direction for the protection of the prisoners.
§
Amendment proposed,
In page 2, line 12, after the word "witnesses" insert "and in the case of poor persons charged with treason or treason felony, for the payment of counsel.—(Mr. T. C Thompson.)
§ Question proposed, "That those words be there inserted."
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, he thought there was some misconception as to the practice in Ireland in such cases. It had always been the practice in cases of murder for the Crown Solicitor to provide the fees for counsel if prisoners were undefended; and the Government did not see why the same practice should not exist in cases of treason and treason-felony. It appeared to them reasonable that the same practice should apply to those cases, and they therefore would accept the Amendment; but he would suggest the insertion in the Amendment of the words "or murder."
§ MR. PARNELLasked whether it was worth while to make any exception at all? It would be better to extend the principle to all the offences in the clause.
§ SIR WILLIAM HARCOURTsaid, the Government could go no further. A line had been drawn in the category of offences, and they must adhere to that.
§ MR. LEAMYasked if there was any objection to extend the principle to cases of manslaughter, for which a man might be sentenced to penal servitude for life? It was much more important for a prisoner to have counsel before three Judges than before a jury; and he thought a prisoner might be allowed 124 to have counsel on a charge of manslaughter, provided, of course, that the Judges were satisfied that he had no means of paying counsel himself. The police would be quite able to ascertain that.
§ MR. P. MARTINsaid, he hoped the Home Secretary would extend the principle to all the classes of offences. There was to be a special and exceptional tribunal; and he thought the same system might be adopted as that which had been, he might say, the uniform practice in the case of all Special Commissions in Ireland. Where circumstances necessitated their issue, the Crown assisted in defraying the cost of the attorney and the fees of counsel retained for the prisoner. That practice was not limited to murder, but was applied to all the offences enumerated in this clause. Some of the gentlemen who were now Judges in Ireland had been sent down to such Special Commissions, and been paid by the Crown to represent prisoners. Under these circumstances, as a special and exceptional tribunal was to be created, he hoped the Government would provide poor persons with the means of being defended by counsel. There existed no grounds for limiting the provision. The reason for its adoption was even greater than in the case of Special Commissions, as the Committee should bear in mind that the venue was to be wherever the Lord Lieutenant might select. He might select a venue where solicitors whom the prisoners might know were not present; and then the prisoners would be obliged to fall back on counsel. In such cases, it would be a subversion of justice for prisoners to be tried before these three Judges without having the assistance of counsel.
§ SIR WILLIAM HARCOURTsaid, he hoped hon. Members would admit that he had shown every disposition to go as far as he could in acceding to requests; but he did not think he ought to go further in this matter than treason and murder.
§ MR. LEAMYsaid, he thought one observation by the hon. Member (Mr. P. Martin) was worthy of further attention. A poor man might be taken, say, from Cork to Dublin, and, unless he had the means of engaging counsel in Dublin, he would have to go without any defence. In his own place that man might be able to scrape together a 125 few pounds and engage a solicitor, who, perhaps, had a number of cases in Court, and, in consequence, would take a small fee; whereas, if he was in Dublin, he would not know where to find an attorney, or have the means of paying a large fee. As the Government were setting up a special tribunal, they ought not to hesitate over a few pounds. This Bill was not to last more than two or three years—and, presumably, some of the cases would be taken before juries—and he thought the Government might assent to the Amendment.
§ MR. LABOUCHEREsaid, he thought the contention of the Home Secretary was really a plea for murder; for he could easily conceive the case of a member of the dangerous classes, after having burnt down a house and assaulted the owner, saying he was obliged to murder the owner in order to get counsel, which his own means would not enable him to get for himself.
§ MR. MOOREsaid, he hoped the Government would agree to the proposal, for the provisions of the Bill were very stringent, and were calculated to destroy the confidence of the poorer classes in justice; and it would be very hard to make a man in Connemara believe he was going to be fairly tried when he was taken to Dublin to be tried by three Judges without a jury. He trusted the Government would see their way to granting such men every facility for obtaining a fair trial. Very likely he would not get a fair trial in any case. He did not wish to impugn the justice of the Judges; but it was one thing to give a fair trial, and another to convince a man that he had had a fair trial. The proposal would only involve a matter of a few pounds.
§ DR. COMMINSsaid, there was another point he hoped the Government would consider, for the sake of the Judges themselves. Their responsibility was about to be enormously increased, and, in proportion to increased responsibility, Judges always desired that prisoners should be well defended. In England, when a man was tried for murder, and could not provide counsel for himself, the Judge assigned him counsel; and for the sake of the Irish Judges themselves, as well as for the sake of the prisoner, it was important that the privilege of having the asssistance of counsel should be extended to 126 all prisoners—at all events, in such serious cases as manslaughter, for which penal servitude might be imposed. As for any distinction between murder and manslaughter, that was so small that he could not understand why a distinction was drawn. Judges had said, in summing up, that manslaughter might be so near to murder that practically it was impossible to draw a line; and, therefore, counsel was as necessary in a case of manslaughter as in a case of murder.
§ MR. HEALYsaid, he wished to know whether the Government could say how soon after a man had been committed he would be informed that he would be tried before this special tribunal, and where he would be tried; also upon whose directions this would be done, and whether the Attorney General for Ireland would have to go through each case? If so, he presumed that would be done in an alphabetical manner, and could not the Government arrange to inform the prisoner in time to enable him to provide counsel? It was essential that a prisoner should have early advice upon these points, because he might get up a local subscription in his own neighbourhood to enable him to obtain counsel. An hon. Member opposite had raised an objection to the expenses of witnesses being provided, and he presumed there would be a stronger objection to provision for counsel. The reason why this was specially necessary was that, under this Act, the Government would be prompted to bring more men to trial than under the old Act, taking the chance of getting convictions; and, therefore, men would be more liable to arrest.
§ MR. PARNELLsuggested to the hon. Member (Mr. Thompson) that if the Home Secretary would agree to reconsider this matter on Report, the matter might be left with confidence to the right hon. and learned Gentleman.
§ MR. TREVELYANsaid, he did not think the Government could hold out any hope of reconsidering the Amendment. They had made considerable concessions already in favour of the prisoners.
§ MR. NEWDEGATEsaid, there was no doubt that there had been ample funds for promoting the agitation which had led to the present lamentable state of things in Ireland; and he thought it would be only reasonable that those 127 who were connected with the disturbances should provide the means of defending the prisoners.
§ MR. MOORErose to Order, and asked whether a discussion of the Land League funds was germane to the question before the Committee?
THE CHAIRMANI understand the hon. Member simply to allude to the fact that there was a Land League fund.
§ MR. NEWDEGATEsaid, if those funds were available for promoting disturbance, those who administered them should provide the means of defending the persons accused.
§ MR. HEALYpointed out to the hon. Member that this Bill was to last three years; but the funds of the Land League might run out in three months.
§ MR. T. D. SULLIVANasked whether any person who subscribed for such a purpose would not be liable to such an action for maintenance as was brought against the hon. Member himself?
§ MR. NEWDEGATEWhich eminently failed.
§ Amendment agreed to.
§
Amendment proposed,
In page 2, line 14, after the word "court," insert "and certified as required by such court."—(Mr. Attorney General.)
§ Question proposed, "That those words be there inserted."
§ MR. PARNELLsaid, he did not believe the Home Secretary intended this Amendment to be moved, because, during the discussion on the Amendment with regard to prisoners being tried in the districts where the offences were committed, he had intimated his intention to bring up a clause later on dealing with the machinery for providing the expenses of witnesses. This Amendment certainly did not provide for expenses in the spirit of the statement of the right hon. and learned Gentleman, because it was expressly said there should be some provision for the maintenance of witnesses, and for enabling a poor prisoner to get his expenses before he came up for trial. Under the Bill, the witnesses might have to remain for some weeks in an Assize town, or wherever the Commission was held, at their own expense; and it was only reasonable that, after the money had been advanced out of the slender resources of the prisoner, 128 the Court should certify for costs. He would suggest that this matter should be left open for consideration, and that the Home Secretary, having considered the question, should bring up his clause or clauses for effecting what he evidently thought it was desirable to carry out.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, he perfectly recollected the statement of the Home Secretary; and what he understood to be the course contemplated by the right hon. and learned Gentleman was that for some witnesses an application would have to be made officially by the Crown Solicitor. He thought the better way would be to allow this Amendment to pass, seeing that there must be some certificate as to what witnesses were required. He was sure he could promise that the Home Secretary would take care that that was practically carried out.
§ MR. HEALYasked whether, without this Amendment at all, what the Attorney General had spoken of would not take place? Someone must pay the expenses, and the person paying would require to be certificated. He thought the Amendment unnecessary.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)We must regulate that, which is part of the procedure, or there will be no control whatever.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)Yes; certainly.
§ MR. P. MARTINobjected to the Amendment as likely to create considerable difficulties. He did not think the Attorney General meant that in every case the Judge should certify for costs. What was wanted was some officer to certify; but putting it in the "Court" would throw upon the Judge what he did not think the Attorney General intended. Under the circumstances, it would be better that nothing should be added to the clause at present. As the Government had definitely stated their intention to facilitate and assure the payment of all witnesses that might be fairly required to be produced before those exceptional tribunals, he thought it well to leave the entire matter to be provided for either on the Report stage, or to have new clauses introduced in Com- 129 mittee to regulate the payment of these witnesses. When framing these clauses, in addition to stating in what manner these expenses were to be estimated, it could be determined also who would be a suitable officer to carry out the matter. The adoption of this Amendment would introduce confusion to the Act, and the clause might run counter to the proposed clauses.
§ DR. COMMINSsaid, he should not object to an Amendment which would give the Court power to disallow expenses; but to introduce this provision here, and throw the onus of allowing expenses on the Court, was going too far. The Court would have enough to do to try issues, without being required to consider the question of allowing expenses. It would be sufficient to give the Court power to disallow the expenses of a witness who misconducted himself, or stated what was untrue, or tried to deceive the Court. What was wanted was an inducement to witnesses to come forward, in order that justice might be done; but this Bill seemed to tend towards inducing witnesses to come forward for the Crown, and the same provision should be made for the defence. In England it was the practice that, unless the Court disallowed expenses for some good and sufficient reason, every witness was entitled to a fixed allowance. There was no reason why that system should be departed from, for the intention of this Act was to induce those who could speak honestly and truthfully to come forward whether for the Crown or the prisoners. Therefore, the proper course would be to give some power—or rather, to omit this passage altogether—and then the present law would apply to witnesses on both sides, the Court having a power of disallowing expenses.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, a witness for the defence was not entitled to his expenses, as a matter of course, unless he was a necessary witness, and his expenses allowed by the Court.
§ DR. COMMINSsaid, a witness for the Crown in every criminal case was entitled to his expenses, and the defence ought to have the same provision.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)said, the practice was, that where a prisoner in an ordinary case was too poor to get witnesses, the Crown Solicitor brought 130 them up for him, and settled the expenses; and then the Judge decided the matter.
§ MR. HEALYremarked on the inconvenience of discussing this question without the Amendment of the Government.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)stated that the Amendment to be brought up by the Home Secretary would be of a different character from this. This Amendment dealt with witnesses before the Court; and the Amendment of the right hon. and learned Gentleman would deal with witnesses for the defence in order to bring them into Court, which was a totally different thing.
§ Amendment agreed to.
§
Amendment proposed,
In page 2, line 14, at end of the Clause, to add the words "Provided, That nothing in this section shall empower a Special Commission Court to try a person for any offence, unless a Judge and jury in Ireland have jurisdiction to try that person for the said offence."—(Mr. Attorney General.)
§ Question proposed, "That those words be there added."
§ MR. HEALYsaid, he had made a suggestion that only offences committed in Ireland should be tried by this Court, and the answer was that that would exclude offences on the high seas. This Bill, however, was not brought in for offences committed on the high seas, but for offences in Ireland, and he did not see why the Government should not assent to his suggestion to confine the Bill to Ireland. The Bill was not, he supposed, intended to deal with offences in Hong Kong. The Home Secretary had said the Irish Members were speaking with two voices; but was not this proposal of the Government an instance of speaking with two voices? They had brought in a Bill to try crime in Ireland; but who was going to settle the question whether a Judge and jury would have jurisdiction to try an offence? The Attorney General would probably say the Lord Lieutenant would decide; but the Irish Members had their suspicions, and it would be mighty little satisfaction to a man to tell him that a Judge and jury would have power to try him, and leave him to go to the Appeal Court and dispute that. The Home Secretary should accept the logic of the situation, which was that it was in Ireland alone 131 that crime had to be dealt with. Therefore, he was not satisfied with the scope of the Amendment.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)explained that the words "in Ireland" were omitted, because it was intended to give the same jurisdiction as could now be exercised by the Courts in Ireland; and if the words were inserted, to put an extreme case, a man who wished to murder another might take him out to sea a short distance in a boat and there murder him. It was thought better to leave the Amendment as it now stood; but offences in Hong Kong would not, as suggested, be brought under this Special Commission.
§ MR. MARUMmentioned that the Act 24 & 25 Vict. c 100, s. 9, gave power not merely to have the venue in the locality of the offence, but in any other locality, and, therefore, wherever a person could be tried under the ordinary law now, he could be tried by the Special Commission also. That was the entire object of this Amendment—that the person accused should be in the same position as if tried under the ordinary law; and the Government declined to limit the jurisdiction as to persons beyond the present law, which allowed a prisoner to be tried in certain places. He did not object to that; but he wished to provide that the Special Commission should be able to try a person in every place—and nowhere else—where he could be tried under the ordinary law. He was merely asking that the Government should extend to the place of trial as well as to the person the same principle, which would enable any prisoner to be tried for an offence at any place by the Special Commission as he could be under the present law. That would bring the two systems into harmony.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, the Committee had some hours ago discussed the question whether there should be an Amendment enabling the prisoner to be tried out of the district where the offence was committed. The Committee decided that there should be special cases, and they could not now go back upon that.
§ MR. HEALYregretted this Amendment. He had endeavoured to induce the Attorney General to come out frankly with his reasons for restricting this Amendment. The Home Secretary had not done so, but he would give the rea- 132 sons. The right hon. and learned Gentleman wished to bring Irishmen in America, or England, or elsewhere, under the Treason and Treason-Felony Clause. The right hon. and learned Gentleman might deny that; but could he deny its possibility? This was, practically speaking, the Alien Act in a worse form. The Government had now raised the entire question of American citizenship by the way in which this Amendment was drafted. He was sorry they had not seen their way to accepting the words "in Ireland," seeing that this was a Bill, according to its title, for the Prevention of Crime "in Ireland;" but it was now to be made a Bill for the Prevention of Crime in America.
§ MR. HEALYsaid, the hon. and learned Gentleman might deny that; but he (Mr. Healy) knew that certain persons had been tried for speeches in America, and convicted. A change in the law prevented American citizens from being hit by such a Bill as this, but only when they could prove naturalization; and that law would not touch some people in America who had spoken and written, and against whom, on some paltry matter, the Government might use this Bill. Was it fair that a Bill for the Prevention of Crime in Ireland should enable the Government to deal with crime anywhere else? The Government continually gave warnings against the putting of extreme cases; but what was the case the Attorney General brought forward? That one man might take another man to sea in a boat and murder him. A man might take another up in a balloon and murder him; but people did not do these things; and why should they go to the region of absurdity instead of dealing with practical facts? Did the Government wish to insert a clause, under cover of this Bill, to deal with entirely different matters? If they brought in a Bill to put down treason in America, the Irish Members would discuss it with the Government; but they objected to a Bill brought in under false pretences. If the Attorney General was afraid of a murder in a boat, let him insert the words "on the high seas." It might be said that Irish Members should not object to striking at crimes in America; but they objected to the evidence of 133 informers, and evidence could not be got from America without informers. The Government would have their spies ready in America upon whose evidence men might, under this Bill, be convicted, although men who had been convicted on such evidence could swear that every word the informers uttered was false. Could the Government defend this proposal by necessity? If their only argument was that a man might take another to sea and murder him, the Irish Members would meet them and agree to a murder in a boat being triable by three Judges. But this Amendment was a very different thing, and the Government ought to have no such power as that now proposed
§ SIR WILLIAM HARCOURTsaid, he was surprised to hear that there was any objection to this Amendment. It had been drawn up in perfect good faith, to redeem a pledge given to carry out what certain hon. Members below the Gangway had asked for—namely, to provide that a Special Commission should have no more and no less jurisdiction than a Judge and jury in Ireland. The objection raised was that the clause contained no words making it clear that a Commission might not assume a jurisdiction which a Judge and jury would not have. That never was the intention of the Government, and he undertook to make that clear; and, therefore, this Amendment was brought in to give a Commission precisely the same power as a Judge and jury would have. As a general rule, a Judge and jury in Ireland could only deal with offences committed in Ireland; but he had been unable to accept a previous Amendment, because treason, wherever committed, was triable anywhere, and, of course, it must be tried in Ireland, whether by a Judge and jury or by this special tribunal. [Mr. HOPWOOD: How about the case of a murder beyond the seas?] The hon. and learned Member for Stockport (Mr. Hopwood) corrected him, saying there was another case—namely, a murder beyond the seas. He had overlooked that; but it was another case which should be tried, and he had brought in this new Amendment. All that was asked for was that this new tribunal should have neither more nor less jurisdiction than a Judge and jury; and he ventured to think the Committee would be satisfied with the Amendment, which provided that, and carried out 134 the understanding upon which the hon. Member for Wexford (Mr. Healy) withdrew his Amendment.
§ MR. T. P. O'CONNORsaid, he thought that although the hon. Member for Wexford had stated his case against the Government with some strength and vehemence of language, he had not put the case too strongly. The Government undertook to bring in a sub-section of limitation; but they had brought in a section of extension. It was perfectly true that this clause did not give to the new Court any jurisdiction which did not belong to the old Court; but the new Court was a Court without a jury, and the effect of the proposed section would be to enable the new Court—in what the right hon. and learned Gentleman might call a fair charge of treason, but which he would call a charge of colourable treason—to interfere with the legitimate action of men of the Irish race, whatever part of the world they might be in. Then the effect of the Bill would be, not to put down murder or attempts to kill in Ireland, or to interfere with any other agrarian offences which had sullied that country in the last year or two, but to extend a wide net of interference with Irish political action wherever the Irish might be. That was most objectionable, and he agreed with the hon. Member for Wexford in the language he thought it necessary to apply to the description given by the Attorney General. Did the Government seriously propose to bargain on the absurd hypothesis that a man would take another into a boat and kill him, in order to avoid being subject to this Bill? Did the hon. and learned Gentleman put that case seriously, and think that a man who committed so cold and calculated a murder would take the trouble to take another man into a boat, or if he did, he would have any chance of escaping? Could not a man be tried by the ordinary tribunals for murder? The case put by the hon. and learned Gentleman was within the bounds of possibility, but it might be safely left to the ordinary laws. Let the Government say what they meant to include. Did they mean to include every offence committed in any part of the world which, they could designate treason or treason-felony? Under words so wide and comprehensive they might interfere with every act or word, however Constitutional or moderate.
§ DR. COMMINSregretted that the right hon. and learned Gentleman had left the clause in its present shape, because he did not think that it carried out the object the right hon. and learned Gentleman said he had in view when he constructed it. There were two offences which were first contemplated—namely, murder on the high seas, and murder beyond the high seas. There seemed now to have been another offence, of which the right hon. and learned Gentleman was not originally aware. The notorious and well-known Act of 1848 introduced the offence of treason-felony, and involved principles which were not to be found in any other Act. One of these was that the offence of treason-felony, no matter where committed, might be tried within this Kingdom, provided they caught the offender. The offence was a very peculiar and extraordinary one. It was an entirely new offence, and one which had never been made a crime anywhere before the passing of that Act. The Act itself applied to "treasonable practices," and before that Act passed constructive treason had been a puzzle to the lawyer and a terror to the politician. But if constructive treason was a terror, "treasonable practices" were much more of a terror. He did not know why it should be so, because he did not believe that a single indictment had ever yet been framed for treasonable practices; and unless the present Bill assigned something more definite than this extremely undefinable phrase "treasonable practices," it would be impossible to convict anybody. Hitherto, he believed, it had been impossible to draw up an indictment showing what the offence of treasonable practices was. He presumed that was the reason why hitherto no person had been indicted under the Act for the particular so-called offence; but they were now going to get rid of the necessity of defining offences in legal and technical phraseology in the form of an indictment, and the new tribunal would have power to find a man guilty of treasonable practices without finding it necessary to have before them what had always been necessary up to this time—namely, a formal indictment on the part of the Government who were the prosecutors defining the offence. Therefore, this Bill introduced a new danger. No man who ever went out of Ireland for a moment—no Irishman who had been in 136 America, or France, or Australia, or anywhere else abroad, would be safe from an indictment for treason-felony when he returned home again. It was not necessary that he should have said or done anything which might be construed into a treasonable practice. Speeches might be invented for him and provided by perjured witnesses, and in this way a new terror would be introduced for every Irishman who had occasion to go outside Ireland. No man would be able to go abroad without running the risk of being indicted for treasonable practices. Under these circumstances, although the Proviso of the right hon. and learned Gentleman the Home Secretary might do something towards limiting vexatious prosecutions, it must not be forgotten that the Act would still apply to offences which were committed outside Ireland, and he should be glad if the right hon. and learned Gentleman could see his way to restrict the clause still more, so as to prevent the abuse of the Act by common informers, extortioners, and persons who made a trade of perjury in Ireland. So far as he could see, there was nothing in the Bill to prevent trumped-up charges being made, and persons being tried for them as having been guilty of treasonable practices.
§ MR. HEALYsaid, he wished to ask a question on a point of Order. The Bill was entitled "Prevention of Crime (Ireland); a Bill for the prevention of crime in Ireland." That appeared upon the cover of the Bill. Then, in the Bill itself, the words were the same—"Prevention of Crime, Ireland; a Bill for the prevention of crime in Ireland." The Pramble, which had been postponed, recited that—
Whereas by reason of the action of secret societies and combinations for illegal purposes in Ireland, the operation of the ordinary law has become insufficient for the repression and prevention of crime, and it is expedient to make further provision for that purpose,and so on. The question he wished to put was this. Whether under the proposed clause, it being admitted that trials for treasonable offences which took place in Hong Kong were triable in this country, in a Bill which was only for the Prevention of Crime in Ireland, such an Amendment as that now before the Committee could be put from the Chair?
THE CHAIRMANThat is not a point of Order, but a point of law, in 137 regard to which I am not competent to give an opinion. So far as I can form an opinion, the words "unless a Judge and jury in Ireland have jurisdiction to try that person for the said offence," put the Amendment properly in Order.
§ MR. HEALYsaid, that in that case he would ask the Government to consider another point. The hon. and learned Gentleman the Attorney General for England (Sir Henry James) said it was desirable to guard against murder committed in an open boat upon the high seas; but the clause was not confined to murder. It extended to treason and treason-felony. He would, therefore, ask the Government to accept an Amendment which would enable the Government to rest their case on murder—on murder in an open boat. The Proviso now said—
Provided that nothing in this section shall empower a Special Commission Court to try a person for any offence, unless a judge and jury in Ireland have jurisdiction to try that person for the said offence.And he would propose to add to it these words—Provided no person shall he tried by the said Court for treason or treason-felony committed out of Ireland.If the intentions of the Government, in regard to the clause, had been bonâ fide stated by the Attorney General, he did not see what objection there could be to the insertion of an Amendment to that effect. The hon. and learned Gentleman said that it was desirable to prevent the commission of crime on the high seas, and so on, where a Judge and jury in Ireland would have jurisdiction. The hon. and learned Gentleman denied that there was any desire on the part of the Government to cast their net all over the globe, so as to intercept, by means of spies and paid informers, any Irishman who happened to visit another country. Either the Government did desire to extend the operation of the Act to America, Australia, and the Colonies, or they did not. If they did, let it be made perfectly clear, and let there be a frank statement from the Home Secretary; and, if not, he trusted the Government would have no objection to accept his Amendment.
§ SIR WILLIAM HARCOURTremarked, that when this question was raised last week, he said at once that the clause was intended to include treason. 138 It was impossible, therefore, that he could accept the words of the hon. Member for Wexford (Mr. Healy), limiting the clause to crimes committed in Ireland, of a treasonable character, because treason was an offence triable wherever committed. There had been no attempt on his part to conceal that that was part of the object of the Bill. He had stated it in the most plain and direct manner, and he had thought that the hon. Member for Wexford accepted the declaration. [Mr. HEALY: No.] Certainly, the hon. Member for the City of Cork (Mr. Parnell) did. [Mr. HEALY: Only as regards murder.] That was not so. His statement was accepted as regarded treason also; and he had distinctly stated why treason should not be excepted from the clause. He had no wish to charge anybody with a breach of faith; but, certainly, the course now taken by hon. Gentlemen opposite was a distinct departure from the understanding which he thought they had come to the other night. He had stated that treason was an offence which must be dealt with wherever it was committed. Whether a man went to Scotland, England, or Ireland, or to any other part of Her Majesty's Dominions, if he had committed treason, he was a person amenable to the law. He had stated that in the most open manner, and he had thought that hon. Gentlemen opposite, sitting below the Gangway, accepted it. Murder, instead of being a treasonable offence, was added afterwards, because it was suggested by his hon. and learned Friend the Member for Stockport (Mr. Hopwood) that a person who might be killed in an open boat on the high seas would not come within the operation of the clause. Now, if an Irishman killed a man anywhere, he was amenable to the law whenever he came back to his own country. That was the law at this moment, and a very proper law. It was the same with respect to treason. If a person committed treason against the Crown—if an English person committed the murder of another English subject, and either of those persons came within the jurisdiction of the Crown, he was amenable, and would be, and ought to be, punished. He submitted that it was necessary to have all crimes of that nature punished; and if it was impossible to obtain a fair and impartial trial in any particular 139 part of Ireland, then the offender should be tried before this Special Commission Court sitting in some other part of Ireland. It seemed to him that that was a simple statement easily understood. The Bill only proposed to apply the -well-known principles of the law—common to all the Three Kingdoms—to offences which came within the jurisdiction of the law in Ireland.
§ Notice taken, that 40 Members were not present; Committee counted, and 40 Members being found present,
MR. JOSEPH COWENsaid, he was not quite sure that the Home Secretary altogether carried out in this sub-section the promise he had given to the Committee, and he understood that there were several points upon which hon. Gentlemen opposite wished to have information. He gathered from the statement of the Attorney General that treason consisted of words spoken or articles written in a newspaper. If in either case the words, spoken or written, were treasonable, the man who spoke or wrote them might be tried for treason or treason-felony. But what he wanted to know was this. Suppose a man made a speech in Chicago, or California, or New Orleans, or New York, condemnatory of the Government, could that man be tried in Ireland for a speech thus made, on the ground of treason or treason-felony? That, he understood, was the point hon. Members wished to have clearly explained before they assented to the sub-section the Home Secretary proposed to add to the Bill. During the last two years speeches had been made in America, some of them by hon. Members of that House, which had been made the subject of adverse comment in the House. Was it possible for those hon. Gentlemen, if this Bill became law, to be tried in Ireland for treason or treason-felony? The English Government might have agents spread all over America. Although the Fenian agitation was not carried on very extensively there now, it still existed. The Government agents might, therefore, attend meetings, hear what was said, and then give a very imperfect report of what they had heard; and, on the evidence of these inefficient reporters, a trumped-up case might be made against a man, and be might be tried for treason or treason-felony in connection with a speech made 140 under such circumstances in America. It was to prevent the possibility of such a circumstance taking place that the Committee wanted to know from the Government whether, in such a case, it was possible for a man to be tried in Ireland for treason or treason-felony owing to a speech he might have made, for instance, in Chicago?
§ SIR WILLIAM HARCOURTsaid, he had no hesitation in answering that question. No man could be tried or convicted on an imperfect report of what he had said. In regard to speeches, the Committee had discussed that question at considerable length on the proposal to include treason and treason-felony in the Bill. It was not true that a man could be tried for any words he might utter, which—to repeat the phrase used by the hon. Member for Newcastle (Mr. Cowen)—were strongly condemnatory of the Government. Certainly not; nor for words strongly condemnatory of the system of government. He had ventured to point out to the Committee, and his hon. and learned Friend the Attorney General for England had also pointed out, what the Law of Treason was in that respect. It had also been explained in regard to treason-felony and advised speaking, that the offence was limited to two years after the passing of the Act of 1848. Therefore, treason-felony, as defined in that Act, did not now exist; and as regarded treason, it must be coupled and directly connected with a design to attack the system of government in this country. Words spoken with such an object and intention were treason, wherever they were spoken; and it did not signify whether they were spoken in Ireland, England, or anywhere else. If a British subject, by speaking or writing, endeavoured to advise or persuade an invasion of this Realm by foreigners, that was treason; and it was treason where-ever it was committed. If a subject of the Queen persuaded or advised, either by speaking or writing, foreigners to invade and attack the Realm, wherever he wrote or made his speech, he was guilty of treason; and if he subsequently came anywhere within the Dominions of the Queen he could be arrested, and was triable and ought to be convicted of treason. That was his (Sir William Harcourt's) opinion, and he had never concealed that opinion. They could not 141 alter the Law of Treason, and, as far as he could Bee, there was nothing unreasonable in it. A subject of the Queen had no right to go to any part of the world and advise foreigners to invade the Realm and attack the settled system of government in this country. He had no more right to do that in America than he had to do it in England, Ireland, Scotland, or France. Every country must act on the principle of self-defence; and these were principles of self-defence which every Government must reserve to itself. He hoped that he had satisfactorily answered the question of the hon. Gentleman.
§ MR. O'DONNELLsaid, there was this objection to the position in which the right hon. and learned Gentleman had placed the matter. Any man who was guilty of treason in foreign parts against his own country, by words or writing, had a right to be tried by a jury of his countrymen when he returned to England. That was an element of the case which had been altogether left out of consideration by the right hon. and learned Gentleman the Home Secretary. What was proposed to be done under this Bill was that a number of Judges in Ireland, who were Government nominees, and who in no way represented the country, should have the power of declaring and deciding absolutely upon a whole number of points which were involved in this clause. He should like the Committee to see the number of points involved. A man might be accused of having made a speech in New York, which was alleged to be treasonable. In order to be treasonable, the speech must have been in connection with a design to bring about an armed invasion by foreigners of the Queen's Dominions, for the purpose of oversetting the Queen's authority in Ireland or elsewhere. Therefore, these two or three Government nominees were in the same breath to decide that there was a design, that the speech was uttered in connection with that design, and that the words of the speech were words which, taken in connection with the design, amounted to an invitation to foreigners to invade the Realm. And this they were to decide without the protection of the common sense and the impartial mind of a jury. The Home Secretary passed over all that very 142 lightly, with the simple observation that the nation was bound to defend itself against an individual guilty of such an act. Now, this was a Bill of a very exceptional character, and a Bill which was to apply only to Ireland. Then why did they not limit it, as much as possible, to what was absolutely necessary to meet the circumstances of the case? Why should they cast their net so widely, all over the world, in the chance of bringing in some one or two or three men as traitors, and punishing them without a jury, in case of their landing in Ireland? A clause of this kind was really only a trap and a net in which to catch the unwary. Where there was a real design for the invasion of Ireland by armed men from America, they might be perfectly sure that the conspirators would be real conspirators and real enemies of England, who would act in such a way that the nets of the Home Secretary would be spread for them in vain. If there were incitements to treason in speeches or writings in America, those speeches and absolute incitements would be made, probably, by the leaders of the organization in America, who need not have much fear of coming within the jurisdiction of this Act, for that sort of offence at any rate; but, on the other hand, a man in America—an Irish politician, for instance—might use very warm language denunciatory of the Government in Ireland; and he wanted to know what kind of denunciation would be safe from the mischievous misinterpretation of two or three partizan Judges in Ireland? If an Irishman in America were to say, for instance, that the Act of Union was only passed by force, would it be considered treason? Because it was a thing that might be said here in England by any man without putting himself in danger. There would be no fear whatever that any man would be brought before an English jury and condemned or convicted of treason for having uttered such a sentiment. But suppose a man said the same thing in America, and suppose some other man—some native Irish-American—should be present at the same public meeting, without having any other connection whatever with the Irish politician, and should declare that the circumstances under which English rule was established in Ireland were such as to deprive that rule of all right to obedience, and that 143 the sooner such rule was put an end to by force the better, they might have a partizan Judge in Ireland putting together the speech of the American in the body of the hall, or on the platform, with that of the Irish politician, with whom he had no connection whatever, and, finding a certain amount of identity in the expression by which the Irish politician had condemned the means by which the Act of Union was brought about, he would at once declare that the speech was treasonable. Yet here, any ordinary English politician—the right hon. Gentleman the Chancellor of the Duchy of Lancaster, for instance—might in this country denounce the means which brought about the Union with perfect safety; and yet, merely because a solitary Irish-American added to the speech of the Irish politician a rider, declaring that the system which had been established ought to be put down by any means, they would have partizan Judges declaring that there was clear evidence of a design of a treasonable character against the Queen's government in Ireland; and, putting together the two speeches, it would be easy to make out a regular invitation to an armed force to invade Ireland, especially if the meeting was attended by any muster of armed forces, which was generally the case when any meeting was held in America in connection with the ordinary rites of citizenship. It was no unusual circumstance to have at such a meeting some 300,000 or 400,000 soldiers or State Militia; and it was just possible that a partizan Judge in Ireland would triumphantly parade that fact as a proof of the presence of armed men, and would say that Mr. A. B., the Member for so-and-so, in Ireland, had, in such an armed assembly, denounced the English rule as having been unjustly established in Ireland. The evident conclusion to which the partizan Judge would arrive was that this was treason, intended to incite armed men to put an end to English government in Ireland; and it was quite clear, therefore, that penal servitude would, in such a case, be the least result of the operation of this clause of the Bill, as it had been expounded by the Home Secretary. But he (Mr. O'Donnell) repeated that it was only unwary politicians who would be caught by the Bill—innocent men who would have no treasonable designs. Any 144 man who had a treasonable design would take very great care that he did not express it in that way; he would know that it would be much safer to express it in quiet over a private breakfast-table in a secluded room, in some New York hotel or some New York mansion, in the presence of some half-dozen leaders of the Irish Brotherhood. And words uttered in that way would have ten times greater effect. But it was not against crime of that kind that the Bill was directed. Treason, under such circumstances, would be perfectly safe, and that was one great fault he found with the Bill. All through the Bill was an utterly ineffective one for the prevention of crime, while it would be exceedingly effective in putting down legitimate political agitation. He came now to the question of evidence. Upon what evidence would the charge be brought home? It was palpable that it would be upon the evidence of spies and informers, whose characters would be already blasted; and upon that ground alone it would be more valuable in the eyes of a partizan Judge. He could assure the Home Secretary that the stringent force of the Bill would lose nothing by leaving outside of it offences of that kind; while, by leaving them in, it was liable to create an enormous amount of disaffection, and was likely to afford facilities for the unjust punishment of moderate men. It must also be borne in mind that there was not a line in the proposed Amendment which was calculated to bring dangerous enemies of Her Majesty's Government to justice. The clause, as it stood, was directly aimed against public agitation. If the Irish people sent out a deputation to the United States, for the purpose of inducing the United States Government to undertake their friendly offices with England—in the same way that England proffered her friendly services to Turkey—there was hardly a sentence which such a deputation could utter, if they were reported to Irish partizan Judges, which would not subject them to conviction for treason, and to the punishment of penal servitude.
§ MR. LABOUCHEREobserved, that before the discussion ended, he desired to point out a mistake which he ventured to think the Government had made by putting in the same category such offences as treason and private crimes. 145 When the question of treason and treason-felony were under discussion, he understood the hon. and learned Gentleman the Attorney General to state, in the first instance, that nobody could be prosecuted for treason on account of words spoken.
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)I never said so.
§ MR. LABOUCHEREThe hon. and learned Gentleman said he never said so. If not, somebody else did; and the opinion was expressed from the Treasury Bench. No doubt, as the discussion went on, the Government were not prepared to stand by that opinion, and they were obliged to admit that, under certain circumstances, persons could be prosecuted for words spoken. They now heard from the Home Secretary what those circumstances were "Words spoken," said the Home Secretary, "were not treasonable unless they were accompanied with a design to attack the country and the Constitution of the country." But, as he (Mr. Labouchere) understood it, the design was proved by the words, and consequently the Home Secretary was merely playing with words. The right hon. and learned Gentleman said now "that a man could be prosecuted for words spoken, and it was for the Judges to decide whether the words spoken were treasonable or not treasonable." The Home Secretary proposed to extend that view to words spoken even in America, and he asked the right hon. and learned Gentleman if he knew of any case in which an Englishman had ever been prosecuted for high treason for words spoken in America? Was such a case ever likely to occur; and, if not, what was the object of putting treason and treason-felony in the Bill? His (Mr. Labouchere's) opinion was that the real object was to create a vague dread in the minds of Irish gentlemen who might go over to America, that spies would follow them throughout their trip, take down their words, and report them to Her Majesty's Government.
§ SIR WILLIAM HARCOURTsaid, he hoped his hon. Friend would allow him to correct him. The clause was not merely directed against words spoken, but it included an invitation made to attack the Realm. An English subject in America might, for instance, give a direct invitation to other persons to at- 146 tack the Crown, and might assist in providing arms for an actual invasion. A British subject might be actively engaged in such a manner without having spoken treasonable words at all. He might form part of a battalion intended to invade the country, and the words in the clause were necessary, in order to provide against a case of that sort.
§ MR. LABOUCHEREsaid, that if that were so, would the Home Secretary agree to an Amendment, stating that it should not be mere words, but acts, that constituted the offence? The Home Secretary said he was anxious to guard against a man who was providing arms, or taking actual steps for the invasion of England; and if that were all, he was sure that no hon. Member would object to the introduction of such a clause into the Bill. As the Bill was now drawn, its only effect would be to overawe a person who might be speaking in America at a moment of excitement, and who might in that moment of excitement, use vague words which might be taken down by some spy. If such a case occurred, the person by whom they were uttered, on his return to Ireland, might possibly find himself arrested and taken before three Judges, and condemned to a disgraceful punishment on account of them. It was on that ground he thought the clause ought not to be introduced into the Bill. He had pointed that out to the Home Secretary when they were discussing the question of eliminating treason-felony from the clause. The Prime Minister said the next day that he could not yield the point, because he had no time in 24 hours to consult with the Irish Executive; but he suggested that the hon. Member who had moved the Amendment should bring the matter up again on the Report. [Sir WILLIAM HARCOURT dissented.] He begged the Home Secretary's pardon; he thought he was stating what the Prime Minister said. The right hon. Gentleman suggested that it should be brought up on the Report. [Sir WILLIAM HARCOURT: No.] At any rate, the Prime Minister said that it could be brought up on the Report, and when he said that, it was next door to saying that it ought to be brought up. What the Prime Minister meant was this—"What is the good of discussing it now. I cannot yield at this moment. I do not say I am going to yield; but before the Report is taken I 147 shall have time to consult with the Executive in Ireland, and I shall then be able to consider the matter after having had their Report, and say whether it is possible to yield on this question or not." It was very possible that the Irish Executive might declare that they found they could carry on the government of the country perfectly well without including treason-felony in the Bill; and, if so, what was the use of raising a discussion now upon the paragraph which the Home Secretary proposed to add to the Bill?
§ SIR WILLIAM HARCOURTsaid, he had only submitted this Proviso at the instance of hon. Gentlemen opposite. He would be perfectly willing to withdraw it, if it was the wish of the Committee.
§ MR. LABOUCHEREsaid, he thought it would be much better that his right hon. and learned Friend the Home Secretary should withdraw it. [Cries of "Agreed."] He did not know that it was agreed; and if the Home Secretary withdrew it, as a necessary consequence, the hon. Member who had proposed the original Amendment would withdraw that. If the question of treason-felony was to be deferred until the Report was brought up, there would unquestionably be an exhaustive discussion upon it. He certainly failed to see that the introduction of the paragraph now would accomplish any such object, and he thought it would be better to accept the offer of the Home Secretary to withdraw it. He took it that hon. Members did not want the question to be prejudiced by the paragraph of the Home Secretary being accepted without the Amendment proposed to it.
§ MR. T. P. O'CONNORsaid, he was somewhat surprised that his hon. Friend the Member for Northampton (Mr. Labouchere), who was not altogether inexperienced in the ways of the world, should advise the hon. Member to withdraw the Amendment. That was exactly what the Home Secretary wanted. The position of the right hon. and learned Gentleman was this. He understood that hon. Members on that side of the House objected to certain provisions of the Bill as being too large. The right hon. and learned Gentleman with frankness said—"Your objection is a reasonable one, and I will limit the operation of the Bill by bringing in a new clause." 148 In redeeming that undertaking the right hon, and learned Gentleman brought in a clause which left the jurisdiction exactly as it was, or, if it did anything at all, it enlarged it. And this was the way in which the right hon. and learned Gentleman met the demand that the Bill should be limited instead of extended. It had been suggested by his hon. Friend the Member for Dungarvan (Mr. O'Donnell) that some Irish Members in America might be induced, in the excitement of the moment, to utter words for which they would afterwards be sorry; but anyone who had been in America would know very well that if a man, in addressing a public meeting there, got into a state of excitement, that excitement was soon knocked out of him by the cool and collected and intelligent audience he found himself addressing. It was suggested that a shorthand writer might follow a Member in America. He wished he could be sure of that, because the right hon. and learned Gentleman would then be able to base the accusations made against Irish Members upon accurate reports, and not upon the reports which appeared in the American newspapers, which were most incorrect and misleading. The Committee had now this advantage. They had arrived at a clear understanding that spoken words could constitute treason. That, however, was not the admission of the Government at the commencement of the discussion. At the beginning their contention was that the clause was very limited in its application; that treason and treason-felony were offences well-defined and fixed by Statute, and that words spoken could by no chance come within the meaning of treason-felony. After that several explanations were given. The Attorney General said that words uttered at a meeting would not be treason, except under certain circumstances. The Home Secretary thereupon took the same line and said that words could not constitute treason, "except under certain circumstances." But all this meant that words could constitute treason, and that a judgment as to the circumstances would vary according to the heat or frigidity of the political circumstances of the time. The Government had now exposed the true meaning of the clause and had put a full interpretation upon it. He had certainly known instances in America where persons, carried away by excite- 149 ment, had made foolish and vehement speeches; hut the persons by whom such speeches were made were generally either not particularly sane, or particularly foolish, and not altogether sober. In some of those speeches an immediate invasion of this country had been recommended; but if the right hon. and learned Gentleman had himself been in America at the time they were made, he would not have been likely to take much notice of them. Certainly, this clause against treason and treason-felony was not required in order to deal with folly of that kind; but the truth of the matter was that this sub-section was not asked for in order that it might be put in force against persons who were asking for an invasion of England. What it was intended to meet was the case of persons who were conducting Constitutional agitation, and who, by a fraudulent interpretation of the clause, in a time of political excitement, would be brought under its operation. The right hon. and learned Gentleman said that he was in the habit daily of reading columns of matter in the Irish and Irish-American papers, advocating the invasion of this country. He did not wish to cross-examine the right hon. and learned Gentleman, but he should like to ask him if they were Irish newspapers in which he read trash of that kind? Could he name three newspapers in Ireland in which such advice was given; and could he name three Irish-American newspapers which recommended any such course of action out of the 65 Irish-American newspapers which existed in various parts of the United States? Because, out of that large total, the Home Secretary found one or two, or perhaps three—he did not think the right hon. and learned Gentleman could find so many—which occasionally advised such insane projects as the invasion of this country and the resort to atrocious crime, the right hon. and learned Gentleman formed a bad estimate of Irish-American character. The estimate the right hon. and learned Gentleman had formed of the Irish people in America was one of the most inaccurate, fallacious, and most blinding that ever occurred to the mind of man. The Irish people in America were by far the most intelligent portion of the Irish public in any part of the world. Any man speaking before them had to employ much more moderate 150 language than he would he required to use on the floor of the House of Commons or in addressing his countrymen in his own country. The larger portion of the Irish people in America had gradually, under the free institutions and large advantages and prospects of that country, become owners of property, and, as a consequence, were Conservative; and all this bugaboo about infernal machines was about as fanciful, as unrealistic, as many of the scenes in "Babil and Bijou," and other extravaganzas.
§ SIR WILLIAM HARCOURTsaid, the hon. Member knew a great deal about America and the Irish in America, and what did he say? He sail there were not more than two or three newspapers who advised the invasion of England and the commission of atrocious crime. He would accept that. But the two or three newspapers must be written for a certain clientéle. There must be a certain number of persons to whom such sentiments must be palatable.
§ MR. T. P. O'CONNORI do not think there are three such papers; there are only two.
§ SIR WILLIAM HARCOURTsaid, that if there were only two of these papers there must be a certain number of people for whom these inflammatory articles were written. What he wanted was, that when the people who wrote the articles advising an invasion of this Realm and a resort to atrocious crime, and the people who found these newspapers palatable, and for whom they were written, came within the Queen's Dominions they should be made amenable to this law. He was not prepared to say that these people formed the majority of the Irish in America; they might be a minority, but the law must control even a minority. The hon. Member might put the number of such people as low as he liked. If there was was only one man of this kind, the Bill would be necessary to deal with that one man. ["Oh!"] Why, he was always being taunted with paying too much attention to one man—Mr. O'Donovan Rossa—but they had not forgotten that he was elected by an Irish constituency. They knew that Mr. O'Donovan Rossa was elected by an Irish constituency on account of the very utterance of atrocious sentiments. [An hon. MEMBER: He was in an English gaol.] He might be mistaken about that; but, at all events, 151 they knew that he was elected. What he (Sir William Harcourt) wanted to point out was, that if there be any number of people, be that number large or small, who, being subjects of the Queen, were engaged in designs of a treasonable character or designs for the promotion of atrocious crime, those people should, no matter where those designs were carried on, and no matter whether they were carried on by acts or words or writing, when they came within the jurisdiction of the English law—let it be in England, Ireland, or Scotland—bo made answerable for their conduct.
§ MR. JUSTIN M'CARTHYsaid, the right hon. and learned Gentleman had now discovered a new kind of treason or treason-felony; he had discovered that not only was the man who wrote a treasonable article in a newspaper, but the man who read the article, guilty of treason or treason-felony.
§ SIR WILLIAM HARCOURTsaid, he did not mean to say that. He was only answering the argument of the hon. Member (Mr. T. P. O'Connor). What he said was, that there must be a good many people who were favourable to these designs, or else treasonable articles would not be written.
§ MR. JUSTIN M'CARTHYsaid, the right hon. and learned Gentleman stated that it was only right to bring all these people within the scope of this law. He made no distinction between the man who wrote a treasonable article and the man who read it. However, it seemed quite clear that the further they went the more dangerous became the clause which provided for the trial of persons charged with treason or treason-felony to be tried by a Court composed solely of Judges. The more they heard the offence defined the more difficult it was to understand the definition. Look how treason had gone up in the last few nights! A few nights ago they were told that no words could constitute treason, unless they were connected with some deed being done, or some deed already done. If a man, for instance, merely gave the word of command in a treasonable insurrection, that, of course, would be treason. To-night they heard that mere words, apart from any deed being done or being prepared, might constitute treason. The doctrine was certainly prevailing in the Committee at this moment that words, even though 152 they could not be brought into connection with certain deeds, might be considered treasonable. Suppose a man went to America, and made on some public platform a foolish speech, in which he said—"I wish you Americans would invade Great Britain, and form a Republic there;" although there might be no treasonable organization, although there might be no idea on the part of anybody to invade England, that man, having made that speech to an American audience, could, when he returned, be tried before this jury of Judges on the charge of treason, because he had incited a foreigner to invade England. Almost any rhetorical flourish, however absurd, might render a man liable to be tried under this clause for treason; it might be argued a man meant treason when he merely threw idle words in the air. Now, an ordinary jury would easily see whether a man had been talking nonsense. There was no army in the field; there was no organization being prepared; and, therefore, such a jury would say these idle words were simply called aloud to solitude and were not treasonable. But he could easily imagine that three Irish Judges would consider that mere words alone constituted treason, and that they would convict this foolish orator. That was the substantial danger of this clause, and, therefore, every effort should be made to limit the force of the clause, by striking out those offences which came under the head of treason or treason-felony, and such crimes which were made up partly by law and partly by the interpretations of men.
§ MR. LALORsaid, they did not desire that a man who had been guilty of treason should not be brought to trial; but what they wished was that he should receive a fair and impartial trial. It was contended that a man who committed treason or treason-felony in Ireland, and the man who committed the same offence in America, were, in being tried by this Special Commission, placed upon an equal footing. That was not the case. A man who was accused of treason or treason-felony in Ireland had his witnesses about him, and he could call evidence as to character, or to refute the charge preferred against him. The man, however, who had committed treason or treason-felony in America had no one to call on his behalf, but he was completely 153 in the hands of Government officials. The Judges, who, under this clause, were both Judges and jurors, the head officials who conducted the prosecution on behalf of the Crown, and the witnesses themselves, were all the paid officials of the Government. How could any man of common sense believe that an accused man would stand in the same position, under such an arrangement, as he would if he were tried under the old system of trial by 12 of his own countrymen?
§ MR. BIGGARsaid, he could not understand why the Government should adhere so tenaciously to the retention of the words "treason or treason-felony" in the clause. It was notorious that for more than 10 or 12 years there had been no prosecutions for treason or treason-felony in Ireland or in England. In point of fact, it was so rare an offence that it was hardly worth taking into consideration. It was a much different matter when they talked of the possibility of a person being prosecuted for an offence of treason or treason-felony committed in America or in any part of the world. There had been no case, certainly in the memory of any person now living, in which a person had been prosecuted in this Realm for an offence committed so far away as America. The Government were not acting a very judicious part in occupying time in a discussion of this kind, because there was no probability that any prosecution ever could or ever would take place under the provisions of this part of the Bill. His hon. Friend the Member for Queen's County (Mr. Lalor) put the case very strongly as to the reasonableness of trying a man by jury for words alleged to have been spoken in America. It was only in regard to words that this part of the Bill would apply. If a person were engaged in a conspiracy to commit an outrage or outrages in the shape of murder or any other serious crime, he would come under another part of the Bill. The evidence which could be brought against a man for words spoken in America would necessarily be of a very meagre character, and, therefore, it seemed unfair that he should have to submit to such a trial as was proposed in the Bill. The reports of speeches in the American papers were but summaries, and it was almost impossible to find from them what it was a man really in- 154 tended to say. If the witnesses against the accused were to select certain passages out of a long speech, the accused would be put in a very unfair position, seeing, as he had said, that as a rule there was no reporter present to take a verbatim note. It would be perfectly impossible for the prisoner to give proper evidence, and to say to what extent his remarks had been fairly reported. Of course, it could not be alleged that in any of the cases a full report could be supplied by the Government; they would simply offer in evidence the passages of a speech which suited their purpose, and the prisoner would have no chance of obtaining a fair trial. The Government were acting very unreasonably in standing so firmly by this part of the clause.
§ MR. JUSTIN M'CARTHYsaid, it struck him it would be well to allow the two lines to be withdrawn altogether, because they could discuss the question much better on Report.
§ MR. O'DONNELLsaid, he was induced to say a few words by the observations which fell from the Home Secretary. It was quite evident the Home Secretary had an entirely exaggerated opinion of the influence of Mr. O'Dono-van Rossa. The right hon. and learned Gentleman had said Mr. O'Donovan Rossa was elected by an Irish constituency on account of his incitements to atrocious crime. The right hon. and learned Gentleman was entirely unacquainted with the career of Mr. O'Donovan Rossa. The period of Mr. O'Donovan Rossa's incitations to atrocious crime was quite recent. He was not condemned for any crime of an atrocious character; but he was condemned as an ordinary rebel, as one of the Fenian conspirators. He was elected for the county of Tipperary in consequence, above all things, of the reports which were prevalent throughout Ireland—reports which were afterwards confirmed by an examination into prison management—as to the barbarous manner in which he was treated in prison. The man came out of gaol with a mind soured and embittered to desperation, and his present tendencies dated from his barbarous treatment in an English convict prison. He assured the right hon. and learned Gentleman that his continual reference to Mr. O'Donovan Rossa and to Mr. O'Donovan Rossa's paper was the 155 subject of much good-humoured comment amongst every class of Americans—not only Americans, but Irish-Americans—and he (Mr. O'Donnell) did believe that the solitary and wretched newspaper that was brought out by Mr. O'Donovan Rossa was mainly supported—as it was certainly mainly advertised—by the right hon. and learned Gentleman the Home Secretary. Every time there was an attack upon Mr. O'Donovan Rossa and his trivial paper there was an article in the following number, headed something after this fashion —"The British Home Secretary trying to trample on O'Donovan Rossa." "O'Donovan Rossa defies the Home Secretary." And but for this continual interchange of compliments between the Home Secretary and the editor of The United Irishman, The United Irishman would have failed long since. If the right hon. and learned Gentleman the Home Secretary desired to put down in a practical form Mr. O'Donovan Rossa's treason, let him cut short his supply of references to O'Donovan Rossa and his paper. He thought that within three months of the imposition of that silence The United Irishman would cease to exist, and, consequently, all foundation for the terrors of the Home Secretary would cease to exist also.
§ MR. HEALYpointed out, that not only did O'Donovan Rossa live on the Home Secretary, but the Home Secretary lived on O'Donovan Rossa. The admiration of one gentleman for the other was quite mutual.
§ MR. LEAMYwished to remind the Committee that Tipperary elected O'Donovan Rossa for the very same reason that Meath elected Mr. Michael Davitt.
§ MR. NORWOODrose to Order. He appealed to the Chairman to say whether it was proper they should hear the history of O'Donovan Rossa? For the last 10 minutes they had heard of nothing but O'Donovan Rossa.
THE CHAIRMANI was about to explain that we are straying from the clause. Perhaps hon. Members will keep to the Amendment before the Committee.
§ MR. LEAMYsaid, that if he had erred, he had erred in good company. He was simply addressing himself to a point raised by the Home Secretary, who stated to the Committee that O'Donovan 156 Rossa was elected by Tipperary because of the incitements made in his paper to atrocious crimes. That was not the fact.
THE CHAIRMANI have already said that the discussion is proceeding upon an individual, and not upon the Amendment.
§ MR. LEAMYsaid, he had no intention to contest the ruling of the Chairman; but he wished to remind the Committee that they had been told by the right hon. and learned Gentleman the Home Secretary that the existence of a man like O'Donovan Rossa would be good ground for bringing in a Bill like the present. The Home Secretary had also said that words alone could not be considered treasonable, unless they were coupled with some act against the Sovereign or Government of this country. When a statement of that kind was made, English Members were inclined to think there could not possibly be any danger to a law-abiding man; but they had been accustomed, within the last three or four months, to hear in that House the Law Officers of the Crown get up and quote portions of speeches made by Irishmen in Ireland and in America, and say—"This is a proof of treason and of treasonable designs." They had heard quoted a speech of the hon. Member for the City of Cork (Mr. Parnell), in which he said he would never have gone into the Land League—he would never have taken off his coat—unless there was something behind the Land League movement; and they had been told that this was an indication that the hon. Member looked upon the Land League movement as a treasonable movement, or a movement for treasonable objects. Ho (Mr. Leamy) did not want to shield any man for what he said in America. He would condemn any man who would go to America and say on a platform there what he would not say on a platform in Ireland. They should ascertain once for all from the Home Secretary whether anything a man could say on an American platform in denunciation of the system of government in Ireland could be coupled with a remark made by some excited person in the crowd? [Sir WILLIAM HARCOURT: No.] The right hon. and learned Gentleman said "No;" but he (Mr. Leamy) remembered very well that during the course of the prosecutions against the Traversers, in Dublin, some time ago, the 157 then Attorney General for Ireland (Mr. Law), in citing the speeches of the accused, laid great stress upon remarks made in the crowd—such as "Kill him!" "Shoot him!" "Give him lead!"—remarks which, possibly, were never heard by the speaker on the platform. The speaker on the platform was occupied with his own thoughts, and anxious to make his words heard by a great mass of human beings, and could not heed every interruption made in the crowd; but the Attorney General sought to connect the speaker with all the men in the meeting, who said indiscreet things, and who might have been sent there for the very purpose of giving some treasonable or murderous colour to the language used. They ought to know whether it was the intention of the Government, whenever a man went to America on a political errand, to send out one or two detectives to take down every word he said, in order to bring them up against him hereafter.
§ Question put.
§ The Committee divided:—Ayes 128; Noes 25: Majority 103.—(Div. List, No. 108.)
§ MR. HEALYsaid, he had now an Amendment to propose, as a protest against the way in which the Government had dealt with the clause. He denied that he had been guilty of a breach of faith in not accepting the Amendment; and his present Amendment was to provide that no person should be tried by the Special Commission Court for treason or treason-felony committed out of Ireland. Every man who voted against such an Amendment would be voting in the teeth of the Bill. It was alleged that the Bill was framed to put down crime in Ireland; and he now proposed that treason or treason-felony committed out of Ireland should not be dealt with under the Bill. A number of Gentlemen in the House objected to treason or treason-felony being in the Bill at all. How much more strongly ought those Gentlemen to be opposed to treason or treason-felony committed out Ireland coming within the purview of the Bill! The position which those Gentlemen took up on Thursday and Friday last was greatly strengthened and reinforced by the proposition he now made. The refusal of the Government to accept his Amend- 158 ment would only show their hypocrisy in asserting that this was a Bill to deal with crime in Ireland. Coercion Acts in Ireland, from the very beginning, had not been aimed at crime; but they had been crutches to enable the British Government to creep along in Ireland, and the present Bill would very properly be styled—"A Bill for the better enabling the Queen's Government to govern Foreigners."
§
Amendment proposed,
At the end of the Clause, to add the words "provided also that no person shall be tried by the said Court for treason or treason-felony committed out of Ireland."—(Mr. Mealy.)
§ Question proposed, "That those words be there added."
§ MR. ARTHUR O'CONNORsaid, that not merely as a protest, and not in order to exhibit the hypocrisy of the Government, but on the merits of the proposal itself, he was disposed to support the proposition of his hon. Friend. The hon. Member for Wexford did not ask that persons guilty of treason or treason-felony in America, or in any other country, should go scot-free when they came within the jurisdiction of the English and Irish Courts; but he asked that the jurisdiction of this particular Court should be limited to crimes committed in the country for which the Court was provided. He put it to the Law Officers of the Crown, was there anything unreasonable in such a proposition? The whole history, for instance, of the Law of Libel in this country was one long struggle between the Judges on the one side and the juries on the other. Judges were emphatic in their ruling as to what was and what was not seditious libel and what was and what was not treason. He believed that one of the Judges who presided at the trial of the seven Bishops declared that nothing written constituted the offence of treason; but as late as the year 1808, a man was prosecuted and, he thought, convicted, because he dared write against flogging in the Army. One of the Judges in that case decided that the man was stirring up sedition against the military authorities of the Crown. All the opinions and judgments of Judges in such matters as treason, and libel had been of a strained character; and if it had not been for the protection which juries afforded to the people of this country, 159 they would not, in matters relating to treason and libel, be in the position of freedom which was at present enjoyed. What his hon. Friend asked was, that if men were to be tried in Ireland for treason, they should only be tried by Judges in oases where the offences were committed in Ireland; that the men who were charged with treasonable practices in America should have the benefit of trial by jury. He (Mr. A. O'Connor) was perfectly convinced that the men brought before a jury in Ireland for offences committed in America would have a fair and impartial trial. It was quite conceivable that language of a dangerous and inflammatory character, and language which might reasonably be put down as treasonable and as marking treasonable designs, would, if used in Ireland, be open to a totally different significance to what it would if used in America, and a jury would judge of that fact. They could hardly expect Judges to take the same view of such matters as juries. He believed that Judges trying men for seditious or treasonable language in Ireland would almost invariably find them guilty where juries would not. He should certainly support the Amendment, if his hon. Friend pressed it to a division.
§ Question put.
§ The Committee divided:—Ayes 22; Noes 131: Majority 109.—(Div. List, No. 109.)
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ DR. COMMINSsaid, in the Preamble it was alleged that—
By reason of the action of secret societies and combinations for illegal purposes in Ireland the operation of the ordinary law has become insufficient for the repression and prevention of crime, and it is expedient to make further provision for that purpose.He was of opinion that the ordinary law was amply sufficient for the prevention and repression of crime in Ireland, without the enactment of such a provision as was contained in this clause. He believed that if the 1st clause was enacted, it would be entirely inefficient for the purpose it was expected to serve; and, furthermore, he considered it would do an enormous amount of harm. He opposed it for three reasons—namely, that it was not necessary, that it would 160 be quite inefficient, and that it would fail in its administration and in promoting the peace and good government of the country. What was the defect that was supposed to exist in the ordinary law which made this clause necessary? It was alleged that juries could not be got to convict where sufficient evidence was brought before them; and the cases in which this was supposed to take place were those of treason or treason-felony, murder or manslaughter, attempts to kill, aggravated crime of violence against the person, arson, and attack on dwelling-houses. Now, all these offences were what were technically known in the law as felonies; and in all cases of felony the Crown had the power of challenge. Unless the whole population of Ireland was hostile to the Government, there was nothing easier than for the Government to get an impartial jury to try any case. Whenever a man was indicted for treason or treason-felony, or, indeed, for any offence mentioned in the clause, the Crown had unlimited right of challenge. Nominally, the right was limited; but practically, it was unlimited. The Crown might summon any number of jurymen, and jurymen were selected from the very best of the middle-class people. Such people were the least likely to be influenced by any hostile, feelings to the Government; they were the least likely to be implicated in any treasonable or seditious conspiracies; they were the people who had the most respect for life and property; and unless the Government was thoroughly hated and detested by even such people, the Government could very easily select an impartial jury, who would try according to the evidence, and would only convict if there was evidence on which they could convict. What arguments had been advanced, and what figures adduced, to show that Irish juries had abstained from doing their duty in ordinary cases, such as those enumerated in the clause? They had, undoubtedly, heard of a certain number of acquittals—a number disproportionate to the cases brought to trial—but that proved nothing at all. He would not trouble the Committee by going over the figures; but in no single case had anything been adduced to show that a jury had acquitted a prisoner when they ought to have convicted him; in no case whatever had it been shown that a jury 161 neglected to convict on evidence on which any honest persons would have convicted. In order to show that, not only ought the evidence to be produced, but it should be shown that the evidence was that of credible witnesses. What was the fact in Ireland? In most of the cases, nay, in every one of the cases about which complaint had been made, the evidence had been that of the spy, of the informer, of the perjured witness. Informers were not unknown in England; but in cases where persons were indicted solely upon the evidence of an informer—a class of men who enticed people to commit crime, and afterwards betrayed them—the Judge, in England, invariably directed the jury to acquit the prisoner, unless the evidence of the informer was corroborated in some material point, and the juries had very justly and properly refused to convict. But what the Judges in England would have told them to do the Judges in Ireland had condemned them for doing. In Ireland the Judges had gone so far as to tell the jurymen that they were perjured—that they had no respect for their oaths—and in one particular case he had in his mind the jury were turned out of the box, and the Judge had said to them—"You are a disgrace to your country, and I will not try another case before you." Words to that effect had been addressed to a Cork jury because they had refused to convict on the evidence of informers. What did the Bill propose to do? It proposed to hand over the trial of prisoners to Judges who might have that opinion of the evidence of informers, which was in conflict with the opinion of the Judges of England, to Judges who had already shown that they were in entire disagreement with that which was not only the law of England, but one of the most fundamental principles of the law of England. It proposed to take away from accused persons a protection which they at present enjoyed, and to hand over to those who would be looked on more in the light of accusers than jurors unchecked power of conviction, and of sending people to the gallows even. He (Dr. Commins) entirely dissented from this, believing that it would do more harm than good. In every case where the evidence of impartial, credible witnesses could be got, and where the evidence of the informers was cor- 162 roborated in important particulars, impartial juries could be obtained, because in cases of this kind the Government had practically unlimited power of challenge. The Government could challenge a Cork jury, for instance, so that 12 impartial men could be found; therefore, he contended, this Bill was unnecessary. It would do no good, and, whilst it would not tend in any way to bring a guilty person to justice, it would do a great deal of mischief. It would render convictions possible in cases where the evidence adduced against the prisoner was that of informers, and informers alone, and where the charge was one of inciting discontent, if they would, against the Government, which was only a political matter. The Bill would render convictions possible in these cases, and it would furnish an inducement to the spy, the informer, the sower of sedition, the man who got up secret conspiracies and afterwards betrayed his friends, if he could foresee that the jury would not stand between him and his victim, and that he would earn a high reward. The Bill would do more to cause crime than it would do to prevent it, and it would strike at the root, not only of individual liberty, but of all political liberty in Ireland. If it were true that conspiracies existed in Ireland—and he was afraid there was some truth in it—so long as the informer could bring his enemy, or the person he had marked out as the means of earning a certain amount of money, before a Judge, with no jury between himself and his victim, private liberty would be unknown. Every person who entertained a private grudge against a person, or who had private malice to gratify, would have a new means offered him of satisfying his revenge, and at the same time of filling his pocket. Nor was that all. The encroachments of Governments on the liberties of the people had only been prevented by juries standing between them and the public in the ease of political offences. These offences would, in the future, in Ireland be tried by the new Commission. Cases of treason and treason-felony would be tried by the new Commission, which offences had been, justly or unjustly, assumed to be political offences—at all events, they bore a political aspect. The object of the Government was to convict at any price. They had had social disturbances and 163 political disturbances in England, not much, if anything, better than that which at present existed in Ireland. They had had conspiracies to murder in this country, and nothing could be proved to be in existence in Ireland now, or to have been in existence during the past 20 years, worse than the Bath Fields Conspiracy or Cato Street Conspiracy to murder every one of the Ministers of the Crown; but, in spite of the conspiracies in England, there had been no attempt made to take away from the British public their right of trial by jury. The Government had respected the function of juries, and had found the ordinary law sufficient to put down sedition. Why did not the Government trust to the ordinary law? Why should they seek to take away from the people of Ireland that one protection which had always been found to be of such advantage, and to which the people of England owed the liberty they now enjoyed? Why should they seek to take away this protection without giving it a full and fair trial? No doubt, they expected great results from the issue of these Special Commissions; but Special Commissions bore a very bad odour in Ireland. They had been generally introduced in times of popular commotion, and their operations had had the effect of making the people distrust the Government more, and place themselves against the administration of the law. The first of them, probably, was Cromwell's High Commission Court—and he was afraid the Irish people would be inclined to associate the present High Commission Court with that of Cromwell, which was a travelling Assize going about the country to try persons for treason as it was understood in those days. Cromwell's High Commission hanged and transported with such vigour that the Courts earned for themselves the name of "Cromwell's Slaughter-Houses." Unless the Commission to be appointed under the present Bill was better than they had reason to expect it would be, it would earn a similar reputation. The people of Ireland could not trust it. What would these new Courts do? They would go back to the speeches made by the Judges at the opening of the Assizes, which speeches were occasionally quoted in that House. He would defy any grand juror in the House to refer to any single instance, within his own 164 knowledge, in which an English Judge, in opening any Assize in an English. Assize town, had delivered a political speech denouncing a certain political Party in the country, and telling them that the potty jurors were men who were determined not to perform their duty and not to observe their oaths. And yet that had been done over and over again within the past few years by the Judges in Ireland. It was an offence against good taste, to say the least of it; and anyone who read The Life of Lord Campbell would notice there an account of a speech in which he had denounced this practice on the part of the Irish Judges. The noble Lord had condemned the system of the Irish Judges using their position as Judges on the Bench to deliver inflammatory political harangues denouncing the popular movement of the time and the Leaders of that movement, whoever it or they might be—in fact, by their action teaching the people to distrust the law they (the Judges) administered, and the Government they served. This offence, ho contended, had been most flagrant of late years. The Irish Judges, with very few exceptions, had, through their political harangues delivered on the Bench within the last three or four years, made the people of Ireland thoroughly and entirely distrust them; and the people would distrust any Commission in which the power of life and death and the power over liberty was handed over to the Judges without any check, and without any of the safeguards that were to be found in trial by jury in England. On these grounds he said that this section of the Bill was a mistake. It was entirely unnecessary. It would never effect the purpose it was intended to effect, because the people would have no confidence in it or in the Court that it would establish. It would do a great deal of harm; it would add to the distrust of the Government, and to the discontent that existed. It would add to the present unwillingness of the people to assist the administration of the law, as it would impress upon them the belief that the law itself was unjust. He believed it was a retrograde step, and would do a great deal of harm.
MR. JOSEPH COWENsaid, he supported the proposition of his hon. Friend the Member for Roscommon, although he knew the result was foregone. The clause would be adopted and 165 the Bill would be passed, whatever it contained. But he had the strongest possible objection to the abolition of trial by jury; and on every occasion when he could do so in accordance with the Rules of the House, he would lodge his protest against this most illiberal and reactionary proposition. Nothing had astonished him more during this debate than the loose way in which professing Liberals had talked of trial by jury. One hon. Gentleman had described it as a prejudice. He confessed he had no objection to a good wholesome prejudice, especially if it was a prejudice in favour of freedom. He trusted the prejudice in favour of trial by jury might never die out in England; for, if it did, they might bid a long good-bye to liberty. Another hon. Member had described it as pedantry. This was the same sort of charge that was made against Lord William Russell on his trial for participation in the Rye House Plot. He was sufficiently pedantic to defend the liberties of his native land. It was to be hoped that pedantry of that kind would increase and never diminish. He objected to the abolition of trial by jury because it would demoralize the people and discredit the Judicial Bench. It would demoralize the people, because it would destroy their confidence in the institutions of the country and in the administration of justice. Whatever some hon. Gentlemen behind him might think—however much they might object to it—there was a feeling in favour of trial by jury amongst the mass of the people in this country that amounted almost to a superstition. They believed that no honest trial could take place without a jury. That opinion had saturated the public mind, and any trial that took place, or any decision that could be arrived at, without the instrumentality of a jury would give no satisfaction to the public. They would not be content with it, and there would be a belief that the decisions arrived at by the Judges were foregone conclusions, and that the Judges were not sent out to try cases, but were sent out to convict. That would be the most demoralizing impression they could convey to the community with respect to the administration of law. In Ireland they were in this most unhappy condition, that the chief officers of the Government were not safe. There was no use in disguising it. It was a humi- 166 liating confession to have to make, and it was hard and painful to have to discuss it, but it was true. Officials in Ireland did not feel themselves at liberty to walk abroad as they did in England. The chief officers in Ireland, like the Russian Governors of Poland, had to be guarded; and now, not only the chief officials, but the Judges also, would have to be guarded. They (the Committee) would have to bring themselves face to face with the fact. If these Judges were to try prisoners without juries, the feeling would be as strong against them as it was against the officials of the English Government in Ireland. They had some difficulty in protecting the Viceroy, but it would be still more difficult to protect the Judges. But this abolition of trial by jury would have a demoralizing effect on the Judges themselves, who were anxious to elevate the character of the Judicial Bench. He did not mean to say that it would affect the Judges in the trial of ordinary cases, for the Irish Judges in these matters were just as dependable as English Judges; but there was an unpleasant belief that Judges in Ireland, in trials for political offences, had not been so impartial, and that was incidental to the condition of the country. It was not so very long since the same impression prevailed with regard to the Judges in Great Britain. There was a story told in Lord Cock-burn's Memoirs of the troubles in Scotland in 1759, when, at a trial in Edinburgh, one of the Judges sitting on the Bench was reported to have called out—"Come awa', Mr. Smith, and help us to hang these scoondrels." The feeling still lingered in Ireland, and it was greatly to the credit of the Irish Judges that they wished to shake themselves from it. The most complimentary thing that could be said of the Irish Judges was that they had remonstrated against having these new duties cast upon them; and, if these duties were cast on them, it would intensify the prejudice against them, and in that sense, he said, this clause would be injurious to the Bench as well as to the community. There was a statement often made in this House—that the Irish people were in sympathy with crime. He believed that statement to be incorrect. They were not in sympathy with crime, but in sympathy with the people they believed to be suffering injustice. 167 The object of hon. Members, the object of all legislation and of all Governments, should be to enlist the Irish people on behalf of the law; but, instead of that, they were driving them into antagonism to the law. The people of England had faith in the Judicial Bench and in the integrity of its administration; therefore, it was sustained in this country. But in Ireland the people had not that feeling. Hon. Members could not expect that Judges would convict without evidence any more than juries would; and how, he would ask, were they to get the necessary evidence? Where was it to be found? He feared it would be true of the present Government, as it had been of previous Governments, that they would manufacture the evidence, and that they would use instruments and machinery in connection with this matter that they would not use in other cases. They would manufacture the evidence in this sense—that their spies, informers, and others, would incite persons to join secret societies. In the history of Ireland during the past 20 years, they had numerous instances of this kind of thing; for instance, they had seen men pretend to become members of the Catholic Church, and take the most sacred sacraments of that Church, for the purpose of winning the confidence of people whom they afterwards betrayed. There were the well-known cases of Talbot, Corydon, and others; and in the future, as in the past, the Government, if they did not secure the confidence of the people, would be compelled, in order to obtain convictions, to use such instrumentality as the evidence of these men. He maintained that it was discreditable to any Government to have to use such means. They did not use them in England, because the people were in sympathy with the law of the land; and rather than use them in Ireland, and rather than use these exceptional measures, he should think it would be bettor to tolerate a certain measure of crime. He said "these exceptional measures;" but this measure was scarcely exceptional, because in 80 years they had had 50 Bills, more or less, of this sort—for 50 years they had been disturbing the ordinary channels of the operation of the law in Ireland. Let hon. Members think what would be the feeling of the common people of England regarding the laws if in 80 years 168 they had had 50 Coercion Acts! He held that it would be infinitely better that a certain measure of crime should escape punishment than that the people should lose all confidence in the law and regard for the Government. The end they should strive to attain might, by the process he was recommending, be long in coming, but, when attained, it would be more steady and more satisfactory than the end which could attend the passage of such Bills as this. On these grounds, he objected to all special legislation of this kind, and particularly he objected to the suspension of trial by jury. He should vote against the clause. Some hon. Members sitting on that (the Ministerial) side, however, spoke of the Bill and of the clause with confidence; but those hon. Members were not infallible. Members of the present Government were not infallible; and he would remind them that the 50 Coercion Bills which had been passed in 80 years, and which contained powers such as were contained in this clause, had failed in the past. This measure would fail in the future; and as they had been mistaken in their coercive legislation last year, so would events prove them to be mistaken in the policy of coercion they were adopting now.
§ MR. MOOREsaid, that, as one of those who was not prepared to vote against every species of exceptional legislation, owing to the disturbed state of Ireland, he rose to state his objection to this clause. He felt very deeply, for reasons which had been described much more eloquently by others than he could describe them, that this clause was calculated to destroy the confidence of the Irish people in the administration of the law. There was not too much confidence in the administration of the law in that country at present, for it was always a difficult thing to inspire it in a case where a strong country was governing a weak one. In spite of the respect and regard in which many of the Irish Judges were held, still the general administration of the law did not stand so high as they could wish in the minds of the people. It was not that he, for one moment, feared that the measure would be administered unjustly. The history of the suspension of trial by jury in Ireland showed that it was more difficult to convince three Judges than to convince a jury of 12 of 169 a prisoner's fellow-countrymen. He did not, then, fear that injustice would be done; but he feared that confidence would be permanently destroyed in the administration of the law. Moreover, he did not think the Government had a right to come down to the House and ask for so sweeping a power as this, until they had exhausted every other means of procuring convictions. He should not like to return to the old system of selection, to see a man brought up, as under the old system, to be tried by a selected jury, or one poor man brought up to be tried by a number of rich men, totally different to him in position and sympathies. He thought that would be a mistake, and that it was possible to get a fair jury by other and simpler means, and until that course had been adopted he did not think Her Majesty's Government had a right to come to the House and ask for the wholesale abolition of trial by jury. He did not think the proposal would be made, except in deference to the widespread and deep excitement that permeated this country, owing to the recent painful occurrence which they all regretted so much. He did not think failures of justice were so general in Ireland as many people believed them to be. There had been a great many heavy convictions in Ireland during recent years. Mr. Blake, whom hon. Gentlemen opposite very frequently held up in anything but a favourable light, and who was not a weak-kneed supporter of law and order in Ireland, had written to the effect that he had seen a large number of acquittals, but, at the same time, he had seen very many convictions, and not a few criminals severely punished, and even hanged; and he did not think the acquittals had been so universal as to warrant the abolition of the jury system altogether. That was the opinion of Mr. Blake. This question had been very lightly handled by the Government. Even during these days of excitement, some extraordinary convictions had taken place. There had been one in Dublin in connection with a murder popularly attributed to some secret organization. A man had been brought to justice almost within the present month. Again, during the very height of the excitement, a landlord had been fired at in County Cavan; a man had been arrested for the crime, tried in 170 an adjoining county, found guilty, and sentenced to, he thought, 20 years' penal servitude. There was, in certain districts, some local sympathy with certain descriptions of crime; but he was sure it was not general throughout the country. There was no sympathy with great and serious crime; and if they eliminated the element of terrorism no sympathy with crime would prevent justice being done under the system of trial by jury. He believed that if they removed that element of terrorism they would obtain convictions, and they could do that by changing the venue and carrying accused persons from one county to another. Of course, he should not like to see the system of changing the venue abused—he should not like to see, for instance, a Roman Catholic taken to a heated Orange county to be tried; that would be a gross abuse of the power. But by proper discrimination in the change of venue, and by grouping the counties, as was done in the case of Winter Assizes, they could secure fair and honest juries of a man's peers, and justice would be done. He thought the Government ought to exhaust every means in their power before they came to the House and asked for these exceptional powers; but, if they persisted in their demand for this clause, at least some pledge should be given that the law would not be generally put in force. It would, of course, be said that the law would not be generally put in force; but some strong pledge should be given that they would not eliminate the popular element from the administration of justice, the element that gave confidence and stamped the decisions of the Courts of Law with the seal of popular approval. He trusted the Government would not degrade the Irish Judicial Bench to the rank of police-executive magistrates, until they had exhausted every means within their power to secure a fair trial under the old system.
§ MR. HOPWOODsaid, he hoped it was not too late to appeal to Her Majesty's Government to give up their design of infringing one of the oldest and most popular of our legal institutions. Though it might be too late for practical purposes, he thought it was becoming, at least in everyone who felt strongly upon this question, to make his protest at every stage at which he could do so without Obstruction—and certainly 171 this appeared to be a stage that offered itself for that purpose. He felt this clause to be a dishonour to the Liberal Party from which it emanated. He felt that—and he felt he had given proof of his desire to support the Liberal Administration in its extraordinary dealings with Ireland; but he could not countenance such a proceeding as this, which proposed to alter so completely the administration of justice, and change the ideas of that administration in a manner so utterly foreign to the feelings of Englishmen. It was proposed to do away with trial by jury, and it occurred to him that some of his hon. Friends had referred to the love others had for that principle as "pedantry." Well, as everyone who had had any experience of trial by jury well know, the reverence for the principle was not only a sentiment, but a defensible merit in the institution to be proved continually by practice. There was, in the first place, the position of the Judge on the Bench. The Judge had to array his thoughts; he had to arrange his statement upon the law, and to bring it to the comprehension of 12 men; he had to secure the attention of these 12 men, and to do all this in the face of day, and in the face of strong critics before him and under the criticism of the public newspapers. Now, that in itself was something that recommended itself to them as more than the mere pedantry of liking an old institution. It was necessary that the Judge should, in open daylight and criticism, make himself master of everything, and bring to the comprehension of 12 men the facts bearing on the guilt or innocence of the prisoner. Now, if that were the feeling of the spectator, what was the feeling of the Judge? The principle of the jury cleared his mind, and placed him in a position of comparative impartiality as regarded the prisoner. The prisoner, too, derived immense gain from this institution. His advocate was not dependent upon the Judge, but upon the Judge and the jury, the former being kept in check by the latter—and sometimes the Judge required to be kept in check. The Judge, in the presence of the jury whom he had to direct and preside over, was very much on his good behaviour in regard to due attention to the fairness and justice of the case before him. Now, if these were substantial reasons for the maintenance of the in- 172 stitution, what was there at present which justified its abolition? In the clause before the Committee the Government abolished also that which was a portion of the same system—namely, they abolished for the time being the Grand Jury. Why that should be done he did not know. He did not know why that should not exist, even without trial by jury; but this was a point which, he trusted, would be brought before the Government at a later period. The existence of the Grand Jury was of great importance, because there again the Judge, in the preliminary stage, had to marshal the facts and state them to the jury. All this was to be put an end to in Ireland for three years. What a confession was that for us to make, that we, a people who boasted of our free institutions, could not govern a troubled country by those institutions! That was the most painful admission that could possibly be made by a Liberal Government, or by a Parliament, including Liberals, representing the people of the country—that they could not govern a troubled country by free institutions. It was the greatest justification for all that done in other lauds—this example and confession from the great source of liberty that we could not manage things except in the manner taught us by Russia or other despotic Powers. He sincerely trusted that as they went on with this Bill, they would find growing paler and paler this idea in the Abolition Clause that headed the Bill—that it would become so faint on the minds of Ministers, that, even if it did leave the House as a part of the measure to receive approbation in "another place," it would never be used, but lie in the armoury of rusty weapons, never to be taken down for action. But if it was determined that they were to do away for the nonce with this old institution of trial by jury, then they could only lament their want of power to gainsay those who were going headlong and headstrong upon the uprooting of that which had always been the feeling, and ought always to be the feeling, of England.
§ MR. DILLONsaid, the proposal was of two parts, one dealing with crime, and the other with the political action of the people; and if the Bill were really intended for the repression of crime, and if it were honestly meant to put down crime, it would not interfere with poli- 173 tical action. He wished to say a word, first of all, as to the action of the Government in regard to treason and treason-felony. Whatever question might exist as to the chance of impartiality amongst the Judges of Ireland in dealing with ordinary crime, no question, to his mind, could exist as to their partiality in dealing with treason and treason-felony. Although English Members, and people who had lived in England all their lives, and had never been in Ireland, might say that this was an extreme view, and might attempt to persuade, or allow themselves to be persuaded, that Irish Judges were impartial in matters of treason-felony, he thought that even they would be prepared to admit that it was a very serious question, or a very serious consideration, what the Irish people themselves thought of the matter? Even the most extreme men would admit that it was a terrible thing that criminal jurisdiction should be placed in the hands of men who were believed by nearly the whole of their countrymen to be partial with respect to the crimes they were to try. He did not believe that any man who knew anything of the Irish people, whether he were Tory or Whig, or Liberal or Nationalist, had in his inmost mind the least doubt of the fact that the Irish people believed that the Judges were partial on political questions. The Judges were nearly all of them men who had graduated in that House to the Irish Bench, and his own honest conviction, which he had gathered from the Irish people, was that the most impartiality was to be found amongst those Judges who had been Tories and Protestants from the beginning. If they were to ask who were the most impartial men on the Irish Bench, perhaps the first that would be mentioned would be Mr. Baron Fitzgerald, who had followed out the principles he had always professed, and had always shown more impartiality than most of the Irish Judges. But, even at the risk of doing an invidious thing, he was bound to call the attention of the Committee to the fact that a large number of the Irish Judges had declared, in the political harangues they had delivered on the Bench, their bitter prejudice against those who thought with himself and those who were engaged in the Land League agitation, and he declared that 174 he was convinced that every man who went before the Irish Judges to be tried for any crime, especially for any political crime, the fact of his being a Land Leaguer would go a long way towards condemning him. It might be said that that was not true; but the Irish people believed it to be true, and they had heard Irish magistrates, before judging cases, over and over again ask in open Court—"Is this man a Land Leaguer, and has he paid his rent?" Who could doubt what was the object in asking that question? Chief Justice May, Mr. Justice Fitzgerald, and a right hon. and learned Member of the House (the Attorney General for Ireland), who would probably soon be a Judge, had over and over again expressed their conviction that the hon. Member for the City of Cork (Mr. Parnell) and himself (Mr. Dillon), and others, were steeped in treason, and that their whole movement had been based on treason from beginning to end. If he or his Friends, therefore, were to be put on their trial for treason-felony before an Irish Judge, their case would be prejudiced, and the only question would be as to what their punishment should be, because the Judges had expressed the opinion that their conduct was treasonable. Therefore, by persisting in their proposal for the abolition of trial by jury, the Government took away from the Irish people the last shred of an idea that there was any justice in this matter at all, or that there was anything to stand between the Crown and the subject. Punishment for treason and treason-felony was for the future to be an Executive and not a Judicial act, and there was not a man in Ireland who would not believe that the Judges would be required to go to Dublin Castle to get their instructions as to who they were to convict. ["Oh!"] He was not saying that he believed that; but was saying what the Irish people would believe. There was another point he would put before them as to this clause. The Committee knew that they could try all cases of political offences by special juries. They knew the class from which special juries were drawn in Ireland—that it was from a class supposed to be most sympathetic with the Government in everything that touched on treason. They knew that the great mass of the people, perhaps four-fiths, were abso- 175 lutely excluded from serving on the special juries. What, then, did the Government admit by denying the right of trial by jury for treasonable offences? They admitted that they did not dare submit the trial of treason to the upper classes in Ireland; they admitted that the vast majority of the Irish people were sympathizers with treason, and said that they dared not leave the trial of treasonable offences to the upper classes. If they passed this clause they issued a proclamation that four-fifths of the Irish people hated their rule, and that they despaired of getting convictions for treason except through a body of salaried Commissioners. This was not his statement; but any foreigner who studied this clause would be forced to come to that conclusion; and the Government themselves, by passing it, were simply issuing that proclamation. It was hardly necessary for him to repeat what had been said so often—that they had not brought anyone to trial for treason or treason-felony for 13 years. So far, therefore, from their being able to say that there had been a failure in trials for treason and treason-felony, no trial for such an offence had occurred for 13 years. So far as there had been trials, they in Ireland believed that there had, undoubtedly, been a miscarriage of justice, but a miscarriage in an opposite direction to that alleged by the Government. They believed that in the trials which had taken place very numerously, 13 or 14 years ago, a number of innocent men were punished owing to the anxiety of the "closely-packed" juries to convict. No one could go over the history of these trials without being obliged to admit that no one against whom there was a shred of evidence escaped. He had himself gone over the history of the trials, and he was convinced that persons were frequently convicted of treason and treason-felony on evidence upon which no honest jury would have convicted a prisoner of any other crime. This Bill was brought forward, based on "Moonlight" outrages; and, under cover of dealing with such outrages and agrarian offences, every man in Ireland was to be placed at the mercy of the Judges incases of political offences. But this was not sufficient for the Government; and he wished to know whether, if they succeeded in passing the clause in spite of the opposition offered to it, would they withdraw the Jury-pack- 176 ing Clauses? Was it possible that the Government were not content to leave the matter to the Irish Judges, but they must also have "packed juries" behind the Irish Judges in case those Judges did not do their work well enough? He wished to have either one thing or the other. He objected to "packed" juries, and he objected to trial by Judges without juries; and he objected doubly to having both together. The conviction was forced upon the Irish people, that supposing the Irish Judges acted fairly—and they might readily admit that they would do so in regard to ordinary crime—that the Government would fall back on the old system of jury-packing. He would say leave the present unaltered, or else drop juries. It had been said that this Act would be hung up like a rusty weapon in the State armoury, and would not be used. He had heard that kind of thing very often before; and, of course, he knew that an impression had been industriously spread abroad that everything was to be peace and conciliation between the British Government and the Irish people, and that when this Coercion Bill passed they would hear nothing more about it. He was sorry to say, from information he gathered from Ireland, that nothing could be farther from the truth. The condition of Ireland showed anything but a true policy of peace and conciliation, and it made the Irish Representatives more strenuous in their opposition to the Bill. He believed that if they allowed the Bill to pass, that it would be in full working order before six months were out. What was the good of talking of peace and conciliation in Ireland when men were being evicted every week by the score? This question of the condition of Ireland bore directly on this clause. If they thought the Bill was going to be placed in the armoury of rusty weapons, it might modify their opposition to it; but he was convinced that nothing of the kind would occur. From information he had got from Ireland, it appeared that the evictions last month—the month of May—were greater in number and more general than they had been in any month during the last 10 years. He should like to hear from the Chief Secretary to the Lord Lieutenant some information on this matter. If there was to be a policy of peace and conciliation, did it mean that they were to have, on 177 an average, 200 families flung out of their houses every week? That was what was going on now. It was useless to suppose that they would not have outrage in Ireland whilst people wore wandering through the roads of the country, homeless, in hundreds. The Government might find their hands pushed, as they had done in the case of the last Coercion Act. The opposition of the Irish Members to this measure was thoroughly justified by the condition of Ireland, because they believed that when it was once passed it would be used ferociously. As to the trial of other offences besides political offences enumerated in the Bill, he had had an Amendment on the Paper—which, he believed, was moved, in his absence, by the hon. Member for the City of Cork (Mr. Parnell)—to leave out murder and attempts to murder; and the ground on which he had brought forward that Amendment was, that if the Government were unable to bring forward a single case during the past five years of a miscarriage of justice in regard to such offences, the provision was unnecessary. He had looked over the report of what had occurred, and he failed to find that a single case of failure to convict had been mentioned. He asked, therefore, Was there a single parallel case of suspension of trial by jury of individuals, perhaps for their lives, on the plea of the failure of the jury system, without—when the Government were challenged to produce one—a single case being brought forward in support of the proposal? They had the preposterous speculation put forward that if they suspended the jury system, and substituted for it trial by Judges, they would have evidence forthcoming. He believed that no such preposterous argument had ever before been submitted to the House. His belief was, that if they did away with the present jury system, and substituted for it a system more odious even, they would find it infinitely more difficult to obtain evidence. Whatever evidence was forthcoming before would be withheld then. If there was terrorism in Ireland now, he did not see anything in trial by Judges to put an end to it. His opinion was, that if terrorism existed there would be substituted for it a sullen refusal to give evidence, not through terrorism, but through a dogged belief that the people were getting no justice, and that 178 the Government might look after their own evidence and get it where they could. He was not prepared to say that in ordinary crimes the percentage of convictions would be in the least increased. The new law would demoralize the people, and show them that there was no justice for the poor man in Ireland. It would band them together in a sullen intention to defeat the law. The Government had means and machinery which they could use to produce evidence; but in cases of ordinary crime, where men's lives were at stake, he doubted if more evidence would be got than was obtained at present. Her Majesty's Government would not succeed in securing the confidence of the Irish people for the tribunal they were about to establish; on the contrary, they would probably succeed in bringing the law into greater disrespect. He thought, therefore, it was the duty of Irish Members to oppose this clause to their very utmost. He believed the clause to be the worst clause in the Bill, and he thought its provisions the most uncalled-for, the most unnecessary, the most utterly useless, and of a kind in support of which the Government had not adduced one single argument in the course of the debates.
§ MR. TREVELYANsaid, he should not detain the Committee long on a question which had been so thoroughly discussed, especially as so many of the speeches delivered in the course of the debate were second-reading speeches. But it was impossible to allow the observations of the hon. Member for Newcastle (Mr. Cowen) to pass—as was generally the case—without saying a few words in reply to them. In the first place, the hon. Member began with something like an attack on the people of Ireland, saying that they had a sympathy with crime, and that that sympathy was caused by their ancient and cruel Land Laws. It was evident, from the hon. Member's speech, that the only method of dealing with crime in Ireland was by remedial measures. Her Majesty's Government had tried remedial measures; and if remedial measures would diminish crime, crime in Ireland ought to have been diminished. But, what was the fact? The fact was, that in the first five months of this year outrages of an agrarian nature had risen to 2,275, as against some 1,400 outrages 179 in the first five months of the previous year. He would not trouble the Committee for the third or fourth time by going through the other arguments in favour of this clause. The best arguments he could adduce were some extracts from the Blue Book of the Lords' Committee. Nor would he trouble the Committee by giving further statistics of unconvicted crime. It was enough to say that, in one single year, out of 210 incendiary crimes only 14 criminals were brought to trial, and of these 13 were acquitted; of 67 cases of firing into dwelling-houses only eight criminals were brought to trial, and in no single instance was a conviction obtained. It was demanded what was the reason why, in these cases, 13 and eight men respectively only had been brought to trial? He ventured to give the Committee the reasons in general terms. He found his general statement was borne out by the statement of a man learned in Irish law. He would give one single instance in the Blue Book of a case in which an excited crowd pursued some bailiffs with a murderous intent; these bailiffs took refuge in the police barracks; the crowd was excited and murderous; there was a good deal of stone-throwing and fighting with the constabulary; four men were taken up, seized red-handed. They were put upon their trial, and acquitted by the jury. "In consequence of that," the Crown Solicitor said—
We gave up trying any more of the cases, and we applied to the presiding Judge, Baron Deasy, who is a very mild Constitutional Judge, to postpone them. The learned Judge said he could not shut his eyes to what was passing around him, and he did adjourn them.That was what had happened all over the country. Cases were not brought forward, because to bring them to trial would be simply a farce. But the fact was, his hon. Friend the Member for Newcastle did not care for statistics, and he thought he had disposed of the question by saying that the tribunal of Judges about to be erected would not convict without evidence any more than juries. What a free-and-easy method was that for disposing of an immense amount of evidence which showed that juries in Ireland would not convict! They were challenged to bring a single instance of juries refusing to convict on good evidence. He would give the 180 Committee one or two instances. The first was a case in which three men attacked a house at night near Tralee, with their faces blackened and disguised; they were knocking at the door, calling to have the gun brought out. While they were engaged in this operation three policemen came up, and the head constable instructed his men each to capture a person. He himself captured his man, and held him; the other two persons escaped. One of them—at least, a man who was said to be one of them—was taken a short time after near the place. He was put upon his trial, and along with him the man whom the head constable detained. The man arrested by the head constable had been taken to the barracks, and there was no doubt about his having been there, engaged in the commission of the offence. Both men were put upon their trial together; "and," said Mr. Justice Law-son—I took it for granted that the jury would probably acquit the man who was not taken in the actual commission of the offence; and that, as a matter of course, they would find the other man guilty, for whom no sort of defence could be suggested; but, to my astonishment, they acquitted them both.In that case the accused person was caught red-handed. Mr. Justice Lawson said to the jury—This is the man before you now whom the constable caught at the door and took to the barracks; he has been brought from the barracks hero, and there he is before you.That was of no avail whatever. When the verdict was announced, the Courthouse rang with applause from the supporters of the prisoner. "I was informed," said Mr. Justice Lawson—That on the way from the Court-house the men were followed by a shouting multitude, who cried out, 'We knew they would not dare to find you guilty!'Then there was another case. A dispute arose between two persons, living in the same house, as to who should be master of the place. One struck the other with a sweeping-brush. He fell on the floor and remained insensible till the next day, when he died. The jury acquitted the party on the allegation that the deceased might have fractured himself by the fall. The hon. Member for Newcastle absolutely declared in that House that, in consequence of there being no evidence to bring before juries, the Go- 181 vernment would manufacture it. Now, there was nothing which shocked him so much in that House as to hear the cruel things said of certain of the police who had contrived to get effective evidence in some of those cases. It shocked him much, and, he might say, it surprised him more; because several hon. Gentlemen in that House, speaking in the course of this discussion, had told them—and he did not say there was no truth in the suggestion—that the Government ought to improve this detective organization. But, he asked, what was the use of telling them on one day that they ought to improve their detective organization, and on the next, when, perhaps, the Secret Service Vote was discussed, to come down to the House and cast the most cruel invective upon successful detectives? But it was not against the detective system only that the hon. Member for Newcastle used such strong and bitter words. He said, if the Judges undertook this office, which he so much disapproved and which he almost despised, they would incur the bitter hatred of the Irish people. He said that the Viceroy and officials in Ireland needed to go about in public protected, and that if the Judges undertook this office and carried it out strenuously, they would excite against themselves a hatred as bitter as that which now existed against the other officials in Ireland. But the Judges of Ireland were brave men, and were, no doubt, willing to incur danger of that sort. For his own part, he should be proud of nothing so much as coming forward in a time of danger and showing he did not mind being a mark even for assassins. But not for one moment did he believe that that would be the consequence to the Judges, however bravely they might act. The country had given so much to all, that at a time like the present, they could afford to do something for the country. His hon. Friend talked about the terrible and cruel persecutions of the Radicals in Scotland in 1819, and at a still earlier date, and told a story of the heartless manner in which the Scotch Judges talked amongst themselves. But those gentlemen who sat on the Irish Bench had as little in common with the Scotch Judges, who tried Muir and Palmer, as with Jeffreys himself. Mr. Justice Fitzgerald, speaking of a case in which a 182 man was acquitted very much against the evidence, said—To my surprise, in that case, after giving proper instructions to the jury, they turned round and acquitted both the prisoners, and acquitted them with loud applause in Court. I observed, myself, that the applause came from a particular direction, and that was the place set apart for jurors in waiting, and that the applauders were the jurors in waiting. Upon that occasion I addressed some very strong remonstrances to them, which have clearly been interpreted as words of menace; whereas, they were words of warning only. I told them that if that kind of thing went on, it would lead to the suspension of trial by jury.He believed that the hon. Member for Roscommon (Dr. Commins) compared this Commission with the Court of High Commission in Cromwell's time; and he (Mr. Trevelyan) supposed that the present Commission would, in course of time, come to be called by a similar appellation. But when the hon. Member for Roscommon told them that liberty would disappear from Ireland, and when the hon. Member for Newcastle (Mr. Cowen) told them that he was in favour of liberty, he would like to know what liberty there was in Ireland? He wished the hon. Member for Newcastle would read a little more recent history, and follow the details of these outrages in Ireland, and then he would see how many of them consisted of outrages perpetrated on men whose only crime was that they had ventured to pay their rent. And then the hon. Member said that, sooner than destroy that kind of liberty, they had better tolerate crime. The hon. Member for Roscommon said that many men who had private grudges against others would satisfy their ill-feeling by bringing them before the Special Commission Court. He did not think there was much probability of that course being resorted to. He would now give the Committee the particulars of a case which happened at Clonmel in the spring of 1880. The Crown Solicitor, in his evidence before the Lords' Committee, in referring to this case, said—This is a case where the two Ryans—father and son—were tried for the murder of a young man. They were all tenants of a Mr. Lyster for a bit of cut-away bog or moorland. There was some dispute between them about it, and on a particular Sunday they had been to Mass together at a neighbouring chapel. They lived close together. Their way home lay along the same road. They travelled from the chapel and turned up to their house in common with some 183 20 people coming from Mass. The two Ryans turned up the bye-road to their house, and immediately after the murdered man turned up the same road. They had scarcely got into the bye-road when the 20 people from whom they had parted heard screams and cries of 'Murder!' and 'For God's sake don't murder me!' and that sort of thing. They rushed back, turned up the lane, and found the young man stabbed to death, and saw the two Ryans running away from him. The jury acquitted the prisoners. The evidence was wholly uncontradicted.Now, he believed that any person in Ireland, who, as the hon. Member for Roscommon had suggested, had a grudge against a neighbour, would find better opportunities, so to speak, for carrying out Ms revenge against his enemy than by bringing him before the tribunal. Again, Mr. Justice Lawson said, in his evidence before the Committee of the House of Lords in 1881, after speaking of some parts of Ireland—In other parts of Ireland it is absolutely impossible to obtain a conviction now for offences connected with any agrarian matter.These were the reasons why so few persons, apparently, had been brought to trial. He had listened carefully to the speech of the hon. and learned Member for Stockport (Mr. Hopwood), interesting as his speeches always were; but neither did that hon. and learned Member, nor any other speaker in the course of this debate, attempt to face the difficulties of the situation, or attempt to deal with this absolute denial of criminal justice in Ireland. As an English lawyer, if the hon. and learned Member went down to the Assizes in this country, he was accustomed to find the whole public opinion exerted against acts of criminality; and it appeared to him that the hon. and learned Member was unable to place himself in the position of understanding the feelings of persons in Ireland who had lost, perhaps, a near relation, and had no means of getting justice. But to secure justice in Ireland was the end which the Government must and would accomplish.
§ MR. PLUNKETsaid, he had not spoken often during the progress of this Bill; nor should he have spoken now but for the statement which had fallen from the hon. Member for Tipperary (Mr. Dillon). He wished, however, to say, once for all, that if those who represented Irish Conservatives in that House did not take a greater part in these 184 discussions, it was simply because they did not desire unduly to protract them. He need not assure the Committee that he should speak as briefly as possible on the present occasion; but if what had fallen from the hon. Member for Tipperary were allowed to pass without challenge by him, he should consider that he had failed in his duty. The hon. Member said there was no Irishman in that House, whether Liberal or Conservative, who would not agree with him that the Irish Judges, in exercising their functions under this Bill, would not command the support of the Irish people, or secure their confidence. Of course, if he sat quietly hearing such statements as that, it might be supposed that he (Mr. Plunket) joined in that opinion. But he ventured to say there were hundreds of thousands of people in Ireland who had the utmost confidence in the Irish Judges; and, further than that, he would say there were few, indeed, in Ireland who would not have confidence in the Judges for fair and impartial conduct throughout, were it not for such language as was frequently heard in that country, and of which they had had a faint echo that evening, concerning the Irish Judges. The hon. Member for Tipperary said that the Irish people would believe that the Judges would go to Dublin Castle and receive their orders as to whom they were to condemn. Now, he asked, who ever before heard such a statement put forward by a public man, on an important occasion, with regard to Judges who performed duties without which society could not exist? The hon. Gentleman did not say that was his opinion; he did not go a step further and say "that is not my opinion;" he did not denounce that opinion. It was because such statements were put forward, if not with sanction, with toleration, because they were not denounced that there was any want of confidence in the Irish Judges, and it was by such teaching as that it had become necessary to pass a Bill into law depriving for a time the people of Ireland in certain cases of trial by jury. There was one other topic which had presented itself prominently that evening. He would not go over the whole ground which had already been covered, but would say a few words as to the objection which had been raised to the inclusion of treason 185 as a crime to be dealt with by this scheme; and, more especially, the vigorous and resolute attempt which had been made to exclude from the purview of this clause those who might wish to be sufficiently loyal at home to escape the penalties of treason, but who would come within the range of this clause by their doings abroad. Hon. Members, speaking on that clause, adduced some instances of what might happen in America, and scenes had been described which might possibly take place at public meetings in that country. It was said, if a speaker attended a meeting, and some person there made use of treasonable expressions, any Irish subject of the Queen who took part in that meeting would be held responsible for what was thus said. But if those charges were unfounded, and if the gentlemen who took part in those meetings were supposed to be loyal subjects of the Queen, if those charges and imputations were false, there would be ample opportunity of disproving them. But he asked, if gentlemen did go or did attend these meetings and took the part described, if they stood by and heard those expressions used, and counsels given sometimes falling little short of incitements to immediate invasion of the country, and the upsetting of the Government established here, what position would they place themselves in? They fell into one of three classes. Either they did agree with or approve the tendency of those expressions and the feeling which they worked up, or they did not. If they agreed in them, and in the working up of that feeling, and the gathering in of the dollars which resulted from it, on what principle did they claim to exempt themselves from the penalties of treason when they came back to this country? On the other hand, it was possible they did not share those treasonable opinions. Then, he said, they were working up those feelings, and gathering in those dollars on false pretences—that was to say, supposing they never intended to bring it to actual and open treason against this country. But there was a third class into which they might fall. Perhaps they thought that open treason just now in Ireland and in the Three Kingdoms would not be safe; but that, nevertheless, it was a good thing to go out to America and keep up the enthusiasm 186 existing there and to continue to gather in the money. Then he put it in this way. Could there be anything more insane than that the Government should tolerate that policy, and allow an impression to be produced upon the Irish people that it was the view of the Government that as long as Members of Parliament were cautious and reticent at home, they might go to America and do what they pleased without bringing themselves within the purview of the Law of Treason? He wished to know how, with these things, loyalty could continue to exist in Ireland? Of course, a Government which allowed such things to go on could not expect that the people would long continue to believe in their own policy at all. He thought the argument against the alteration of the clause could be put in a nut-shell. Either the Government must effect a radical alteration in the Law of Treason as it existed in this country for the purpose of facilitating such operations abroad as he had described, or else the only alternative was that treason should be altogether excluded from the purview of this clause, and from the operation of the Bill. He would not go further with any of the other arguments in favour of the clause; but he was bound to confess that he had heard nothing in the discussions which had taken place to remove from his mind the painful conviction that, without such exceptional powers as were demanded in this Bill, it was impossible to cope with the tremendous difficulties which the Government were now encountering in Ireland.
§ MR. PARNELLsaid, it was a remarkable fact that whenever there was any dirt or abuse to be cast upon Irishmen, an Irishman was always found ready to do it with greater zest and greater zeal than any other man. He could recollect the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Plunket) heaping abuse in the House upon a distinguished and honourable Irishman. He remembered when he justified his right to vote against the admission of the late Mr. John Mitchel as Member for the county of Tipperary, on the ground that ho was a dishonourable felon. No Englishman or Scotchman made such an allegation as that in the course of the debate; but it was reserved for an Irishman, the 187 right hon. and learned Gentleman the Member for the University of Dublin, to attempt to heap dishonour upon a man as honourable as himself. The right hon. and learned Gentleman looked forward with the highest expectation to the passing of this Bill into law, and supposed that when it was passed ho and his class would have everything in Ireland under their thumb; that they would be able to take up an attitude of hostility to the just claims of the Irish tenant farmers. That was what was really involved in this question; that was what was really involved in all these demands for coercion, which first of all commenced upon the Opposition Bench, and then were taken up by the Metropolitan Press and forced on the Liberal Ministry. The Conservatives knew that upon this extraordinary power, these unfair advantages, these unjust laws, depended their power to claim unjust and exorbitant rents from the Irish tenantry. During the last winter, the Land Act had been helped, in many cases, by the landlords, who made settlements out of Court; and he believed the number of those settlements out of Court was about equal to the number of decrees, or the number of judicial rents fixed by the Court; and, admittedly, upon those settlements out of Court, which were arrived at by mutual arrangement between landlord and tenant, must depend the future success of the Land Act. If those settlements were put a stop to—the prospect of which the Prime Minister spoke the other day, that 50,000 or 60,000 judicial rents would have been fixed by the end of this year—if those mutual arrangements were stopped, the landlords would be thrown back on what they believed to be their distinct rights, and which, according to their view, had been unjustly assailed by the Land Act; and so would be put an end to this process of mutual arrangement, which had been going on for the last six months, to the extent of 60,000 settlements out of Court. It would also stop the arrangements which had been largely made for temporary abatements pending decisions by the Land Commissioners; and there was not the slightest doubt that the great joy with which the class represented by the right hon. and learned Gentleman the Member for the University of Dublin hailed this measure 188 of coercion was due to the fact that they believed they would be able to exact, during the coming autumn and winter, their full pound of flesh, without reduction or abatement. He (Mr. Parnell) could not help sympathizing with the Chief Secretary upon the speech he had delivered that evening; for the right hon. Gentleman seemed to him to wish that he could have had some other task as one of his duties, in taking up the high and important and responsible Office which he had to fill, than the impossible task of defending coercion; and as the right hon. Gentleman trotted out all the well-worn and stale arguments which so many of his Predecessors had produced, only to find them utterly falsified by the results, he could not help sympathizing with the Chief Secretary in the really disagreeable and odious task, which he was sure the right hon. Gentleman felt his present task to be. The right hon. Gentleman gave some examples of evidence, extracted from Blue Books, to justify the claims of the Government for the suspension of trial by jury; but when he asked for dates, the right hon. Gentleman was unable to give them.
§ MR. TREVELYANI do not wish to interrupt the hon. Member, but the real fact is that I have discovered the dates. The first case I gave was in 1880, and the three other instances were at the Summer Assizes in 1881.
§ MR. PARNELLsaid, he was willing to give the right hon. Gentleman all the credit which his argument might gain from the discovery of the dates, but that did not amount to much, because his heart could not have been much in his work, since he had not thought it necessary to take the trouble to obtain the full information with regard to these offences which he had brought before the Committee. This was a curious and instructive circumstance. The right hon. Gentleman was heir to the mistakes of his Predecessors, and he was obliged to take up the task of governing Ireland where ho found it. He (Mr. Parnell) could not see how the Chief Secretary could hope for any greater success than his Predecessors had achieved. He had now to try a still worse and still more severe Coercion Bill than the one which would expire next September. He was about to try a measure which would make the enforcement of law and order still more—he did not wish to say—re- 189 pugnant to Irishmen; but, depend upon it, the more the Government introduced measures of this kind, the more indifferent the people would feel as to the detection of crime. The hon. Member for the county of Tipperary had said, the other evening, that the Irish people sympathized with crime.
§ MR. DILLONI said that, doubtless, there existed some sympathy with crime in Ireland.
§ MR. PARNELLaccepted the correction; but he thought that was scarcely the correct way to describe the situation in Ireland. It was rather that the law had been so unfairly used, that it had been so obviously twisted and diverted, that the Irish people were indifferent as regarded the detection of crime and the enforcement of the law. It was because all the exertions of Parliament had been directed to devising some further method of enforcing the agrarian rights of the landlords—some more stringent law—something entirely different from the laws that ought to bind Great Britain and Ireland together, that the people of Ireland had taken up this attitude—not of sympathy with crime, but of saying, when an outrage was committed—"Well, the law has never helped us, and we will now leave the law to help itself." Just immediately after the horrible murder in Phoenix Park there seemed a change in the feeling; there was a change in the feeling all over the world; and the people of Ireland undoubtedly ranged themselves on the side of law and order, and desired to detect the Phoenix Park murderers. That feeling spread to America, and money was subscribed in that country—thousands of dollars were subscribed in a few days for the purpose of offering rewards for the detection of the murderers. But immediately after the Government introduced this Coercion Bill that feeling at once stopped. That was one of the first results of coercion. What was one of the next results? In the month during which there was a hope that the Government were about to change their policy agrarian outrages diminished by some 70 or 80. In the fortnight following the introduction of this Bill that diminution ceased, according to the Chief Secretary's statement. He did not know whether that diminution had been maintained, or was still checked; but it was the simple fact that in the month of April 190 the more serious classes of agrarian outrages showed a very remarkable diminution. He believed it would be seen that in the last month, although that diminution had been increased, it had yet been maintained, and that there was still an absence of the more serious forms of crime. Had it not been for the introduction of this Coercion Bill, and the feeling of exasperation which it had aroused in Ireland, there would have been a still more marked diminution of agrarian crime, and especially in that of a more serious character. The Chief Secretary had told the Committee of the great increase in the number of outrages during the first four months of this year, as compared with the first four months of last year. He had stated that they had nearly doubled in number, but he did not state that the evictions had been quadrupled. There was a remarkable relation between the proportion of outrages and of evictions. It was said by some hon. Member the other day in the House that the agrarian crime had not been largest where there had been the greatest number of evictions, and that was undoubtedly true; but agrarian crime did not necessarily follow eviction. On the contrary, crime more often preceded eviction. Agrarian crime in Ireland was not apparently undertaken by evicted people, because they had no means of undertaking it. They were thrown on to the roadside and into the workhouses, and were starved. Agrarian crime seemed to be undertaken by people in order to prevent evictions and to deter landlords from evicting. Evictions might and had come all the same; but, undoubtedly, in some of the districts where agrarian crime had been most excessive evictions had been least numerous; and what sort of a lesson was it that the Government wished to teach Irish people? That to avoid eviction they must commit outrage. That was the lesson taught by making this Coercion Bill precede the Arrears Bill. If the Government had proceeded with the Arrears Bill, and given the tenant farmers some hope that they would be able to maintain the roofs over their heads until they could get the value of the beneficial Act of last Session, they would have done more to stop agrarian crime and to help the large majority of people who desired the restoration of law and order than all the Coercion Bills could 191 do. The right hon. Gentleman said that general challenges had been made in that House by some of the Irish Members for a statement as to in what respect juries had failed in their verdicts. They gave no general challenge, but only in regard to cases of treason and treason-felony. They admitted that in some cases juries had failed to return verdicts in accordance with the weight of evidence; but in regard to the more serious crimes, they challenged the Government to produce specific cases of failure, and their challenge remained unanswered to that day. The Attorney General had not been able to give a single instance. He mentioned one instance of murder, which, however, he did not believe was of an agrarian character, although he was asked to give agrarian cases. He was so utterly unable to give an instance of murder in which a jury had failed to return a verdict in accordance with the weight of evidence that he was obliged to seek another case of murder which was not agrarian, and which was not of the kind it was proposed to try under this Act. The Irish Members did not consider that the evidence given before the House of Lords' Committee could be relied upon. That Committee was appointed with the object of discrediting the Irish jury system; but it failed to do so. Witnesses were called for that purpose, and the loose statements which had been put together by prejudiced witnesses, with the object of discrediting the Irish jury system, were not entitled to receive weight. The inquiry was undertaken in "another place," and without any Representative on the Committee for the other side of the question. There was no public Representative whatever upon that Committee; and if the Government wanted to take away the jury system in Ireland, they might, at least, have appointed a Select Committee of the House of Commons this Sesssion which might have contained Representatives of the different sections of the House. Upon the Report of that Committee they might have founded their claim for the abolition of trial by jury. It was said that hundreds or thousands of people in Ireland had confidence in the Irish Judges. [Mr. PLUNKET: I said hundreds of thousands.] There might be hundreds of thousands who had confidence in the Irish Judges 192 as Judges, in ordinary cases; but he did not believe there were many thousands who had confidence in the Irish Judges as jurors, and it would be rather hard to expect any large number of persons to have confidence in the Irish Judges as jurors, when the Irish Judges had no confidence in themselves as jurors. They had held a meeting at which they unanimously agreed in objecting to the work to be now thrown upon them. They had expressed in decided terms their belief in their unsuitability to administer this Act and to be turned into jurors. Therefore, how could the people have confidence in the Judges as jurors? The Committee was about to divide upon a very important clause; but he did not suppose that if such a proposition as this had been brought forward for England, it would have been allowed to be decided until it had been debated for many days and nights. A Ministry which had ventured to bring such a proposal forward for England or Scotland would not have remained long without impeachment. The Government wore now going to subject the lives and liberties of everybody in Ireland to servants of the Crown; but they must not forget that the very foundations of the English Constitution were involved in this proposal. They might think little of suspending every Constitutional liberty in Ireland; but as they went on they would find they had made a mistake in each succeeding Coercion Act, and that in this Bill they had made the greatest mistake of all. Since they had entered upon this downward path he feared they would soon be coming again to Parliament, in the course of another year, for yet more stringent powers—perhaps Martial Law—and the same old story would be repeated, that agrarian outrages had increased, and the maintenance of law and order in Ireland was still more difficult. But, at least, the Irish Members would have the satisfaction of knowing that they had done their duty. They would remember that they had told the Government on the passage of this Bill, as they told them upon the Bill last year, that the result would be that outrages would increase; that the disregard and want of sympathy among the Irish people for the maintenance of law and order would increase; and that the possibility of bringing the two countries together, and 193 having Ireland as well governed as it ought to be would grow greater; and, perhaps, the Government might then agree that the quicker method, after all, would be to allow the people of Ireland to govern themselves.
§ Question put.
§ The Committee divided:—Ayes 227; Noes 39: Majority 188.
195| AYES | |
| Acland, C. T. D. | Currie, Sir D. |
| Acland, Sir T. D. | Dalrymple, C. |
| Alexander, Colonel | Davenport, H. T. |
| Allen, H. G. | Davenport, W. B. |
| Armitage, B. | Davies, W. |
| Armitstead, G. | Dawnay, Col. hon. L. P. |
| Asher, A. | Dawnay, hon. G. C. |
| Ashley, hon. E. M. | Dickson, Major A. G. |
| Aylmer, J. E. F. | Dilke, Sir C. W. |
| Balfour, A. J. | Dodds, J. |
| Balfour, J. B. | Dodson, rt. hon. J. G. |
| Balfour, J. S. | Douglas, A. Akers- |
| Baring, T. C. | Duckham, T. |
| Barttelot, Sir W. B. | Duff, R. W. |
| Bass, H. | Dundas, hon. J. C. |
| Beach, rt. hn. Sir M. H. | Ebrington, Viscount |
| Bentinck, rt. hn. G. C. | Edwards, H. |
| Birkbeck, E. | Egerton. Adm. hon. P. |
| Blennerhassett, Sir B. | Elliot, G. W. |
| Bolton, J. C. | Elliot, hon. A. R. D. |
| Borlase, W. C. | Emlyn, Viscount |
| Brand, H. R. | Evans, T. W. |
| Brassey, H. A. | Farquharson, Dr. R. |
| Brassey, Sir T, | Fawcett, rt. hon. H. |
| Bright, rt. hon. J. | Feilden, Maj.-Gen.R.J. |
| Broadley, W. H. H. | Fenwick-Bisset, M. |
| Brogden, A. | Ffolkes, Sir W. H. B. |
| Brown, A. H. | Finch, G. H. |
| Bruce, rt. hon. Lord C. | Fitzmaurice, Lord E. |
| Bruce, Sir H. H. | Fitzwilliam, hon. H. W. |
| Bruce, hon. R. P. | Fitzwilliam, hon.W. J. |
| Buchanan, T. R. | Fletcher, Sir H. |
| Campbell, J. A. | Flower, C. |
| Campbell, R. F. P. | Foljambe, C. G. S. |
| Campbell- Bannerman, H. | Forster, Sir C. |
| Fowler, R. N. | |
| Carington, hon. R. | Fry, L. |
| Carington, hon. Col. W. H. P. | Galway, Viscount |
| Gamier, J. C. | |
| Cartwright, W. C. | Giffard, Sir H. S. |
| Causton, R. K. | Gladstone, rt. hon. W. E. |
| Cavendish, Lord E. | |
| Chamberlain, rt. hn. J. | Gladstone, W. H. |
| Childers, rt. hn. H.C.E. | Goschen, rt. hon. G. J. |
| Clifford, C. O. | Gourley, E. T. |
| Clive, Col. hon. G. W. | Gower, hon. E. F. L. |
| Coddington, W. | Grafton, F. W. |
| Collins, T. | Grant, A. |
| Compton, P. | Grant, Sir G. M. |
| Corbett, J. | Grantham, W. |
| Corry, J. P. | Gregory, G. B. |
| Cotes, C. C. | Grenfell, W. H. |
| Courtney, L. H. | Gurdon, R. T. |
| Creyke, R. | Hamilton, J. G. C. |
| Crichton, Viscount | Harcourt, rt. hon. Sir W. G. V. V. |
| Cropper, J. | |
| Cress, rt. hon. Sir R. A, | Hartington, Marq. of |
| Cunliffe, Sir R. A. | Hastings, G. W. |
| Hay, rt. hon. Admiral | Pease, A. |
| Sir J. C. D. | Pell, A. |
| Hayter, Sir A. D. | Percy, Lord A. |
| Herschell, Sir F. | Plunket, rt. hon. D. R. |
| Hibbert, J. T. | Porter, A. M. |
| Hicks, E. | Portman, hn. W. H. B. |
| Hill, T. R. | Powell, W. R. H. |
| Holden, I. | Ramsay, J. |
| Holland, Sir H. T. | Repton, G. W. |
| Holms, J. | Richardson, T. |
| Howard, E. S. | Roberts, J. |
| Howard, G. J, | Round, J. |
| Illingworth, A. | Russell, Lord A. |
| Inderwick, F. A. | Rylands, P. |
| James, Sir H. | St. Aubyn, W. M. |
| Jardine, R. | Samuelson, H. |
| Jenkins, D. J. | Sclater-Booth, rt. hon.G |
| Jenkins, Sir J. J. | |
| Johnson, rt. hon. W. M. | Seely, C. (Lincoln) |
| Jones-Parry, L. | Smith, E. |
| Kennard, Col. E. H. | Smith, rt. hon. W. H. |
| Kingscote, Col.R.N.F. | Spencer, hon. C. R. |
| Lambton, hon. F. W. | Stafford, Marquess of |
| Lawrence, J. C. | Stanhope, hon. E. |
| Lawrence, Sir J. C. | Stanley, E. J. |
| Lawrence, W. | Stewart, J. |
| Leatham, E. A. | Storer, G. |
| Leatham, W. H. | Talbot, C. R. M. |
| Lechmere, Sir E. A. H. | Talbot, J. G. |
| Lefevre, right hon. G. J. S. | Tavistock. Marquess of |
| Taylor,rt hn.Col.T.E. | |
| Lennox, Lord H. G. | Thornhill, T. |
| Lloyd, M. | Tillett, J. H. |
| Loder, R. | Tollemache, H. J. |
| Lopes, Sir M. | Tottenham, A. L. |
| Macartney, J. W. E. | Tracy, hon. F. S. A. |
| M'Garel-Hogg, Sir J. | Hanbury- |
| M'Intyre,Æneas J. | Trevelyan,rt. hn. G. O. |
| Mackie, R. B. | Vivian, A. P. |
| Mackintosh, C. F. | Wallace, Sir R. |
| Macnaghten, E. | Walrond, Col. W. H. |
| Magniac, C. | Walter, J. |
| March, Earl of | Warton, C. N. |
| Martin, R. B. | Waugh, E. |
| Maskelyne.M.H.Story- | Whitbread, S. |
| Monk, C. J. | Whitley, E. |
| Moreton, Lord | Wiggin, H. |
| Morgan, rt. hn. G. O. | Williams, S. C. E. |
| Morley, A. | Williamson, S. |
| Morley, S. | Willis, W. |
| Moss, R. | Wills, W. H. |
| Mundella, rt. hon. A. J. | Wilmot, Sir H. |
| Murray, C. J. | Wilson, I. |
| Newdegate, C. N. | Winn, R. |
| Newport, Viscount | Wortley, C. B. Stuart |
| Nicholson, W. N. | Wroughton, P. |
| Northcote, H. S. | Wyndham, hon. P. |
| Northcote, rt. hn. Sir S. H. | Yorke, J. R, |
| Norwood, C. M. | TELLERS. |
| Palmer, G. | Grosvenor, Lord R. |
| Parker, C. S. | Kensington, Lord |
| NOES. | |
| Arnold, A. | Cowen, J. |
| Biggar, J. G. | Dillon, J. |
| Blake, J. A. | Dillwyn, L. L. |
| Briggs, W. E. | Findlater, W. |
| Broadhurst, H. | Healy, T. M. |
| Bryce, J. | Hopwood, C. H. |
| Callan, P. | Labouchere, H. |
| Commins, A. | Lalor, R. |
| Lawson, Sir W. | Parnell, C. S. |
| M'Carthy, J. | Rogers, J. E. T. |
| M'Coan, J. C. | Shaw, W. |
| Macfarlane, D. H. | Sheil, E. |
| Martin, P. | Sullivan, T. D. |
| Marum, E. M. | Synan, E. J. |
| Metge, E. H. | Thompson, T. C. |
| Moore, A. | Webster, J. |
| Nolan, Colonel J. P. | Whalley, G. H. |
| O'Brien, Sir P. | |
| O'Connor, A. | TELLERS. |
| O'Connor, T. P. | Leamy, E. |
| O'Donnell, F. H. | Redmond, J. E. |
| O'Gorman Mahon, Col. |
Bill read a second time, and committed for Thursday.
§ Clause 2 (Appeal from Special Commission Court to Court of Criminal Appeal).
§ MR. DILLONsaid, they had to meet again at 2 o'clock to-day, therefore he thought it was time they should adjourn. He would move that the Chairman report Progress, and ask leave to sit again.
§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Dillon.)
§ SIR WILLIAM HARCOURTsaid, that if the hon. Member would glance at the Paper, he would find that there were really no substantial Amendments to Clauses 2 and 3. Half-an-hour, he thought, would dispose of them; therefore, he hoped the Committee would be allowed to proceed.
§ MR. T. P. O'CONNORsaid, he hoped the Government would not resist the proposal of his hon. Friend. The Committee had been sitting since 5 o'clock, and had closely applied itself to the consideration of the Amendments brought before it. It had not wandered away from the questions at issue.
§ SIR WILLIAM HARCOURTsaid, that on Friday night they had not adjourned until half-past 1. He only asked for about half-an-hour, believing that Clauses 2 and 3 could be disposed of in that time. If hon. Members would look at the Amendments to those clauses they would see that they were not important.
§ MR. PARNELLsaid, he hoped the right hon. and learned Gentleman would not be too hard on the Committee. It must be remembered that he was taking the Bill every day; that it would come on at the Morning Sitting to-day; that the hon. Members who opposed the measure were few in number, and that all 196 the fatigue of the opposition—which, was not a very grateful task—fell upon that few. It would be particularly hard to keep them up very late, as they were kept up on Thursday and Friday, seeing that they had to meet again at 2. The interval between 7 and 9 o'clock on the day of a Morning Sitting was no advantage to the Irish Members, although, no doubt, it might be to right hon. Gentlemen opposite, particularly the Prime Minister. He hoped the right hon. and learned Gentleman would see his way to allowing hon. Members to get to bed half-an-hour earlier than he had intended.
MR. GLADSTONEsaid, that no doubt some consideration was due to hon. Members opposite. Of late the House had followed the practice of meeting on Tuesdays at 2 o'clock; but he had no doubt, if it were felt that that hour was inconvenient to hon. Members, it could be arranged to meet at 4 o'clock. He trusted, in the meantime, however, that the proposal of his right hon. and learned Friend (Sir William Harcourt) would be acceded to, which amounted to this—that they should go on with the Committee until they came to some serious point of difference in the Bill. His right hon. and learned Friend's belief, and his (Mr. Gladstone's) own belief, was that there was no serious point of difference in the 2nd or 3rd clauses. When they had disposed of Clauses 2 and 3, they would arrive at the important provision about intimidation; and he should think it would be of great advantage to hon. Members to know that when they met to-morrow they would at once commence the consideration of that material provision.
§ MR. PARNELLsaid, it would be very much to the convenience of the Irish. Members if the Business of the House to-morrow could be taken at 4 instead of 2 o'clock. They did not wish to interfere with the convenience of Her Majesty's Ministers; but it must be admitted that it was a great drag upon the opponents of the Bill to have to come down to the House at 2 o'clock after the present Sitting and the other late Sittings they had had.
MR. GLADSTONEsaid, that, after what had fallen from the hon. Member, who, no doubt, spoke on behalf of a body of Gentlemen who had a considerable share of the labours of the House 197 at the present time cast upon their shoulders, so far as he (Mr. Gladstone) was concerned, he should be willing to accede to the request that they should meet to-morrow at the usual hour—4 o'clock.
§ Motion, by leave, withdrawn.
§ MR. GREGORYsaid, he had an Amendment to propose to confine the appeal to capital offences. He felt that this Amendment would supply a great defect in the Bill, for the proposed tribunal would be a very strong one, and, in his opinion, if there were no right of appeal in ordinary cases, would be quite as satisfactory as any trial by jury could be. If, however, there was a right of appeal in ordinary cases, there would be a danger that the Judges might be hasty, and in some measure be guided by their own prejudices, knowing that their decisions would be reviewed in the Court of Appeal. He did not see why, in the case of aggravated crime in Ireland, they should give a right of appeal, which was quite contrary to the law as it had hitherto been in force in the Three Kingdoms. There was practically no appeal in criminal cases at present. He was not sure that the clause as it stood would operate altogether in favour of a prisoner, because if the decision of the first Court was confirmed by the Court of Appeal, it would be very difficult for the Home Secretary to exercise the Prerogative of the Crown, however desirable it might be to do so. He begged to move his Amendment, the effect of which would be to take all punishments but capital punishment out of the right of appeal.
§ Amendment proposed, in page 2, line 16, after the first word "Act," insert "of any capital offence."—(Mr. Gregory.)
§ Question proposed, "That those words be there inserted."
§ SIR WILLIAM HARCOURTsaid, the Government had made this proposal after careful consideration. They thought it desirable to give prisoners the safeguard of a right of appeal in all cases, and they could not consent to such a material alteration in the clause as that proposed.
§ COLONEL NOLANsaid, he had not heard much of the speech of the hon. Member for East Sussex (Mr. Gregory), owing to the conversation which pre- 198 vailed in the House, and which always did go on at that hour of the night (12.35 A.M.). He had heard one point, however, and that was that the Irish Judges would be so totally inefficient and so prejudiced that they would give heavier sentences if there was a right of appeal—knowing that they would be reviewed by the Court above—than they would give if there was no right of appeal. He had heard a great deal said by the Irish Members about the Irish Judges; but he had never heard anything so strong as that. He was very glad the Government did not intend to give way, and would not shut out a prisoner's right of appeal in an ordinary case, because he felt persuaded that that right would be very important iii a considerable number of instances. If any hon. Member could for a moment imagine himself in the position of having received 20 years' penal servitude, he would ask him whether he would not consider it hard that he should be shut out from the right of appeal to five Judges, when he had been, in the first instance, deprived of the safeguard of trial by jury?
§ MR. GRANTHAMsaid, they should not lose sight of the necessity of expediting appeals. If they had appeals from the decisions of the three Judges in Ireland, no doubt, from the experience they had in England of appellate work, many months would elapse before any single case was brought to a conclusion. Under the circumstances, he thought it desirable that if there was to be a right of appeal in every case, some clauses should be inserted in the measure for expediting the ordinary course of appeal, so as to benefit the prisoner, by letting him know as soon as possible whether the sentence on him was to be carried out or not, and, what was of as much importance, so as to insure the speedy punishment of crime; otherwise it would be considered that crimes could be committed with impunity.
§ Question put, and negatived.
§ MR. PLUNKETsaid, that, in the absence of his right hon. and learned Colleague (Mr. Gibson), he wished to move certain Amendments to limit the power of appealing from the Special Criminal Court to the Court of Criminal Appeal to convictions, and to strike out the power of appeal as regarded sen- 199 tences. His reasons for bringing forward the Amendments were, in the first place, that to give an appeal against a sentence was an entire innovation in the law of the Three Kingdoms. He did not know any instance in which a sentence was subject to appeal; and, certainly, it seemed to him that where the Judges were dealing with these grave cases, it would have a most injurious effect if their sentences were subject to appeal and review by another Court. He hoped the Committee would accept the three Amendments down in his right hon. and learned Friend's name, which were consequent one on the other, and which, if accepted, would make the clause read thus—
Any person convicted by a Special Commission Court under this Act may, subject to the provisions of this Act, appeal against the conviction to the Court of Criminal Appeal hereinafter mentioned," &c.
§ Amendment proposed, in page 2, line 17, leave out "either."—(Mr. Plunket.)
§ Question proposed, "That 'either' stand part of the Clause."
§ SIR WILLIAM HARCOURTsaid, there were two reasons why the Government could not agree to this Amendment. If the right hon. and learned Gentleman would look at the Bill he would see that the Appeal Court could hear new facts and take fresh evidence, and it was plain that that fresh evidence might very materially modify the sentence. Take, for instance, a case of aggravated assault. It might happen that when the case went up to the Court of Appeal evidence of great provocation might be tendered which was not offered at the original trial; and that would very largely diminish the sentence that ought to be pronounced. It was plain, then, that as the Court could hear new facts, it might have a new condition of things to deal with. It was necessary that the word "sentence" should be retained in the clause; nor was it at all disparaging to the Judges, who were Judges both of law and fact, that their sentences should be reviewed. When they dealt with the decision of an Equity Judge on appeal they dealt with his decision as to amount, because he was the Judge not only of questions of law, but of questions of fact. This would, he thought, dispose of the Amendments down in the name of the Colleague of 200 the right hon. and learned Gentleman, even the one which referred to new trials. A new trial would be inappropriate. Who were they to send a case down to to be re-tried; to the three Judges who tried it before? Clearly not, because ordinarily when there was a new trial there was a new jury; but here they could not depend on that. The new trial, in point of fact, was the case before the Court of Appeal. The Court of Appeal would hear all the facts which the Court below heard, and as many additional facts as might be brought before it. It would be a saving of time that the Court of Appeal should finally give the sentence that, in their opinion, the Court below ought to have pronounced.
§ MR. GRANTHAMsaid, that the argument the right hon. and learned Gentleman had brought forward with regard to a case of aggravated assault was hardly applicable. If there was evidence to warrant an alteration of the sentence, that evidence ought to have been given by the defence in the original trial; and it was scarcely reasonable to suggest that a prisoner, who had only committed his offence, whatever it was, in self-defence, or in consequence of an aggravated assault upon him, should allow himself to be convicted by the magistrates or other tribunal without suggesting what would be either an excuse for, or an extenuation of, his offence.
§ SIR WILLIAM HARCOURTsaid, that evidence of provocation might be brought forward which could not be given in the Court below.
§ MR. GRANTHAMsaid, it would be strange, if there was evidence of provocation, if it was not brought forward in the first instance.
§ COLONEL NOLANsaid, he hoped the right hon. and learned Gentleman (Mr. Plunket) was not going to persist in this Amendment. The proposal of the Bill was only what was done in cases of courts martial. The confirming authority had always power to reduce any sentence; and if they were going to have, perhaps not martial law in Ireland, but something not far removed from it, it would be desirable to follow the best rules of that law. He hoped the Government would not give way; and, certainly, if they were to go through the long list of Amendments to 201 Clauses 2 and 3 in this way, it would be well to report Progress and renew their discussion at the next Sitting.
§ DR. COMMINSsaid, the Amendment appeared to him to be utterly illogical, as the Home Secretary had pointed out. The appeal would be in itself a new trial. Where there was a new trial there should be power to take fresh evidence, and where there was power to take fresh evidence there should be power to alter a sentence.
§ SIR HARDINGE GIFFARDsaid, some of the arguments against the Amendment were mischievous. Let them see what they would come to. They could not lay down any rules as to sentences; therefore, in every case there might be an appeal as to the amount of the sentence, and the Court of Appeal might not agree with the Court below. They would have constant reviews of the decisions of the Judges as to the amount of sentence, which was entirely alien to our whole system of jurisprudence.
§ MR. PLUNKETsaid, he did not wish to put the Committee to the trouble of dividing; but he considered his Amendment so important that he could not withdraw it.
§ Question put, and agreed to.
§ MR. HEALYmoved, in page 2, line 39, to insert—
(5.) During the continuance of this Act a list of all persons sentenced under this Act, with a statement opposite each person's name of the date of his conviction and the grounds thereof, with the prison in which he is detained, and the names of the judges by whom he was convicted, shall he laid before each House of Parliament within the first seven days of March and August in each year if Parliament be sitting, or if Parliament be not sitting, then in the first seven days after the next meeting of Parliament.He understood the Government were prepared to assent to the Amendment.
§ SIR WILLIAM HARCOURTasked the hon. Member to postpone the Amendment in order to bring it up amongst the Regulation Clauses at the end of the Bill. He quite agreed that such particulars as were specified in the Amendment should be laid before Parliament; but the Amendment was of such a character that it could not properly be considered under the Appeal Clause. Substantially they accepted the principle of the Amendment,
§ MR. LEAMYasked the right hon. and learned Gentleman the Home Secretary if he would also give a list of the persons sentenced by the Court of Summary Jurisdiction?
§ Amendment, by leave, withdrawn.
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ MR. WARTONmoved, in page 2, to leave out Clause 2. He hoped the Committee would grant him its indulgence, for this was the only Amendment he had put down to the Bill. He thought the Government would consider he was anxious to support them as far as he possibly could in passing the Bill; it was his duty, as a Conservative, to support the Government in the prosecution of this measure, though he felt bound to take exception to this particular clause. It was true that this was an extreme measure, but it was an extraordinarily good one. He could hardly conceive a better Court than one composed of three Judges armed with such serious responsibilities. From what he had seen of Irish Law Officers, to whom Parliament generally looked for the future Judges, he had every confidence in the Irish judiciary—in fact, when this Bill passed, he would not be afraid if his life were placed in the hands of three Irish Judges. The reason why he wanted to press this Amendment was that the Government had not given way on a single point. The clause was untouched by any division; but he must ask the Committee to pause for a moment, for really their object was not to pass the Bill with extraordinary celerity, but to consider what they were doing. It was proposed to have three Judges of great eminence to try certain cases. The prisoner was to have an immense advantage, inasmuch as the three Judges were to be unanimous in favour of a conviction. In every Civil ease the majority prevailed. Now, consider how the proposition would work in practice. In almost every case there would be an appeal to delay justice, if for no other reason. The law should be a terror to evil-doers; and the whole object of this measure was, as he understood, to strike terror into the criminal, and to make the law short, sharp, and 203 decisive. If they allowed appeal they would rob the Bill of all its terror and efficiency. He protested against the clause, which seemed the only weak part of an otherwise strong Bill. What would be the effect of a prisoner being allowed to bring additional evidence into the Court of Appeal? The right hon. and learned Gentleman knew full well what was the consequence of there being the right of appeal in his own Office, the duties of which Office the right hon. and learned Gentleman had discharged so well. The right hon. and learned Gentleman knew that when a prisoner had tried one defence before a jury and had failed, he had, when the appeal was heard, started another and a dishonest defence. His (Mr. Warton's) objection to an appeal under this Bill was that the Court of Appeal would be a Court for the propagation of perjury; prisoners would look about for a second ahbi where the first one had failed. It was unheard of in our law to allow any appeal in criminal cases as to matter of fact, and it would not do to reverse the principle of our law simply because this was an extraordinary trbunal. He heard it gravely stated by the Home Secretary that he considered the question of intimidation a more serious matter than that of appeal, because it happened to be the fighting-ground for many people. The right hon. and learned Gentleman knew quite well that no practical alteration would take place in the definition of intimidation; and he (Mr. Warton) affirmed, without hesitation, that the question of appeal was a much more important one, because it involved so many violations of the principle of our existing law. There ought to be no appeal in cases of fact; three Judges were quite competent to determine a question of that kind. He was anxious to review the case fairly and impartially, and therefore would now consider it from the point of view of the prisoner. Let them take the case of three Judges having found a man guilty of the capital offence, and consider what the effect would be when the Court of Appeal sat. The Court of Appeal, consisting of five Judges, as it might under the Bill, was to determine a case by a majority, so that when a majority of three to two confirmed a sentence of death, the cry would run through Ireland that the condemned had been hanged by three to two, and so far 204 it would be a well-founded cry, and one which those who had been so foolish as to reflect upon the honour and reputation of the three Judges who had originally tried the case, by granting the right of appeal, would deserve to have ringing in their ears. The right of appeal was monstrous. If they agreed that two Judges might carry a point against one in the Court below, then the majority might prevail in the Court above. Irish Judges ought to be as good as English Judges; and, as far as he was concerned, no heed was paid to all the nonsense they heard about political partizanship. He believed that when a man became a Judge, whether he had been a partizan or not, he was just as good, and as fair, as if he had had no politics. Men ought to forget their politics when they were elevated to the Judicial Bench, and he believed they did. He earnestly hoped the Government would pause before granting the right of appeal. He must repeat his argument, for he felt he was almost addressing a jury who required the same thing to be reiterated and reiterated until they understood the point. If in the Court of Appeal three Judges were favourable to the conviction, and two against, it would be said the man had been hanged by three to two, and that was his strong objection to the clause. It was as much in the interest of the prisoner as in the interest of the Crown that they must faithfully adhere to the principle of our law. ["Agreed!"] Yes; he sincerely hoped the Committee had agreed to accept his Amendment. In all his experience of criminal cases—and he had a great reverence for the principle of English law—he never heard of an appeal on a question of fact; and he had certainly never heard of fresh evidence being brought in any case of appeal. Besides the danger of terrorizing witnesses, which fresh evidence would produce, he saw a second danger. What would be the effect of fresh evidence on the part of the Crown? They could not allow fresh evidence on the one side without allowing it on the other. The sentence could not be increased by the Court of Appeal; but the Home Secretary argued that the production of fresh facts might necessarily lead to a limitation of the sentence. The fact that they allowed an appeal in the case of facts admitted the possibility of a variation of the sentence. For the 205 reasons he had given he now moved the omission of the clause.
§ Amendment proposed, in page 2, to leave out Clause 2.—(Mr. Warton.)
§ Question proposed, "That Clause 2 stand part of the Bill."
§ SIR WILLIAM HARCOURTsaid, he was perfectly aware there was a great deal to be said against, as well as in favour of the clause. If it were not so late in the night he might be disposed to enter into the arguments for and against the proposal to allow appeal; but the Committee must feel that the Government did not make a proposal of this kind without very mature consideration. There was only one thing he must notice in what the hon. and learned Member (Mr. Warton) had said. He had said a man would be convicted by three to two. That was not so. No man could be convicted under the Bill except by six to two, for the Court below must be unanimous, and in the Court above there must be a majority, and three and three made six. They could, therefore, only have a conviction and a confirmation upon the decision of six to two. The reason they had given the right of appeal was that such great power was being given in the case of heinous offences that some additional security ought to be provided against abuse. Having, after great consideration, incorporated such a principle in the Bill, the hon. and learned Member could not expect the Government to recede from it.
§ MR. WARTONsaid, the reply of the Home Secretary was extremely plausible. He could add three and three together quite as well as the right hon. and learned Gentleman; but the point he wished to impress upon the Committee was that when the cry rang through Ireland that a man had been hanged by three to two, any confidence the people might have in the new tribunal would be greatly imperilled. Supposing, too, that the genial and short-witted Irish public were met with the argument of six to two, which was the not very formidable argument of the Home Secretary. There would not be six to two on the same statement of facts. At the trial below there would be only part of the evidence; but in the Court of Appeal, where an entirely different case might be made 206 out, the majority of three to two were to prevail.
§ MR. HEALYsaid, the clause provided that—
If the appellant establishes want of jurisdiction in the Special Commission Court, the Court of Criminal Appeal may quash the proceedings;and the 26th clause said—Provided that no person shall he tried or punished twice for the same offence.He would like be informed whether, under the Bill, there could be a second trial for the same offence?
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)said, that, under the Bill, a man could not be really in peril twice for the same offence.
§ COLONEL NOLANremarked that the discussion was being carried on in a most extraordinary way. The Conservatives were showing great interest in the Bill; but that interest prompted them to bring in several Amendments to make the measure still more severe than it was originally framed. He really thought he ought to move to report Progress. He protested against the way the Bill was being discussed by the Conservatives, and if they persisted he should speak upon every one of the Amendments, and carry on the discussion in the same spirit they had manifested.
§ Question put, and agreed to.
§ Clause 3 (Constitution of Court of Criminal Appeal, 40 & 41 Vict. c. 57).
§ Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. T. P. O'Connor.)
§ SIR WILLIAM HARCOURTsaid, he would like to take the clause, the consideration of which he did not think would occupy more than a couple of minutes. Of course, if hon. Gentlemen persevered in the Motion to report Progress he should not oppose it.
§ MR. T. P. O'CONNORsaid, he would be very happy to accede to the request of the right hon. and learned Gentleman; but really the clause contained a very important provision. He and his hon. Friends felt very strongly upon the question, and he should be glad if the right hon. and learned Gentleman would now allow them to get to bed.
§ MR. HEALYsaid, he had an Amendment on the Paper, in page 3, line 4, to leave out "by the Lord Chancellor," and insert—
The Judges of the Irish Courts shall meet on or before the third day of Michaelmas Term in each year, and shall select, by a majority of votes, three of their number for the trial of the offences before mentioned in a Special Commission Court, under this Act, during the ensuing year. If in any case at their meeting the judges are equally divided in their choice of one of their number to serve on a Special Commission, the Lord Chancellor shall have a second or casting vote. In the event of the death or illness of any Judge for the time being on the rota, or his inability to act for any reasonable cause, the Lord Chancellor shall fill up the vacancy by placing another judge on the rota.He understood that the right hon. and learned Gentleman was prepared to agree to the proposition that the Judges should be chosen by rota. That being so, there would be no contentious matter in the clause, so that he would suggest to his hon. Friend (Mr. T. P. O'Connor) that the clause might be taken.
§ SIR WILLIAM HARCOURTsaid, he also proposed that it should be provided by the clause that instead of the rota being nominated by the Lord Chancellor it should be chosen by ballot.
§ MR. MARUMsaid, he had an Amendment to the clause, to the effect that an appeal should be determinable in the same way as the trial in the Court below. His Amendment was, in page 3, to leave out Sub-section 3, which provided that—
The determination of any appeal shall be according to the determination of a majority of the Judges who heard the appeal;and to insert—Appellant shall be acquitted unless the whole Court of Criminal Appeal concur in the determination of the appeal.He would like to know whether the right hon. and learned Gentleman could accept that Amendment?
§ SIR WILLIAM HARCOURTsaid, he was afraid he could not agree to such a proposition.
§ MR. HEALYsuggested to the hon. Member for Kilkenny (Mr. Marum) that they should take the clause as far as his Amendment, and then ask the Government to consent to report Progress.
§ MR. T. P. O'CONNORasked leave to withdraw his Motion to report Progress.
§ Motion, by leave, withdrawn.
208§ MR. HEALYsaid, he did not quite understand what the right hon. and learned Gentleman proposed with regard to the election of the Judges.
§ SIR WILLIAM HARCOURTsaid, they proposed that the election should be by ballot, and for that purpose he now moved to omit the first two lines of Sub-section 2, namely—
The Judges shall sit according to a rota to be from time to time determined by the Lord Chancellor.
§ Amendment agreed to.
§ Motion agreed to.
§ Committee report Progress; to sit again To-morrow.