* If, in addressing your Lordships, I looked only to the paramount—perhaps the unparalleled—importance of the case which I am about to bring under your consideration, as it regards the policy, the welfare, and the constitution of this country, I should feel much less anxiety than I experience at this moment. But I recollect that, unhappily for me, and, perhaps, unfortunately for the question itself, it is one of which the indisputaple importance is even exceeded by the great interest it excites; I mean not merely that natural, legitimate, and unavoidable interest which it must raise amongst the people of the country to which it more particularly relates,—I allude not merely to the interest which it excites among your Lordships, as the guardians of the pure administration of justice, you, yourselves, being supreme judges in a court the most distinguished* From a corrected Report published by Ridgway.1276 in all the world, but I am pointing to the personal and the party feelings,—the heats naturally kindled among those who, on the one hand, may suppose that I stand here as the accuser of an individual or of the Government, and amongst those who, on the other hand, may conclude that the parties stand here placed on their personal defence; and, worse than this, I allude, with feelings of a truly painful nature, to that interest which this question is calculated to raise, and which I wish that any effort of mine could lull or delay—I may be supposed to come forward for the purpose of lending myself to personal views, or to party views, and not merely in the discharge of an imperative public duty. But, if the experience which your Lordships have had of me, while practicing before you as a minister of justice at your bar, or as presiding, so far as any Peer can preside, over your judicial proceedings in the House,—if the whole tenor of my not short public life of thirty years and upwards (in which I have constantly—it is, perhaps, rather the result of good fortune than arising from any merit of my own, by accident I might perhaps say, without deviation, or change, or shadow of a turning, proceeded in the same course, and been guided steadily by the same uniform principles),—if this gives your Lordships no pledge that I appear on the present occasion only to discharge a public and a great responsible duty, then what further pledge can I give what more can I say than this? Mark how I, this day, perform the duty which I have undertaken; and then, whosoever of the accusers may be disappointed, or whosoever of those who are on their defence may be chargeined,—whatsoever party feelings may be excited, or whatsoever party objects may be frustrated, by my discharge of public duty,—at least, I shall be able to appeal to your Lordships for my acquittal from the charge of having made myself, on this occasion, what I never did before—an engine of party feeling, or an instrument of personal attack. My Lords, I shall detain you with no further preface: I have only detained you so long, because I thought it absolutely necessary for the question, as well as for myself, to make this appeal. I will, at once, proceed into the heart of this great subject. Rushing into the midst of it, I call upon your Lordships to examine the propositions which I read to you on a former day, and to which 1277 I now ask your assent. The first of them relates to a subject, which, in my opinion, is second in importance to none of the others. If one thing more than another be essential to the due administration of justice in any country, it surely is, that evidence, when it is known to exist, for the conviction of an offender about to be put upon his defence, should be certainly forthcoming when the day of trial arrives, and the guilty not escape for want of witnesses to his crime. In England, and in Ireland, how is this great object of justice effected? In England, as in Ireland, those persons who are known to have the power of giving evidence, are, by the committing magistrates, bound over to prosecute; this is to say, in common parlance, for it is the Crown that prosecutes; but those persons are bound over to give evidence as witnesses for the Crown. In England, generally speaking, there is no difficulty in obtaining individuals, who will not forfeit their recognizances, and who are ready to come forward with their testimony. When they do happen to forfeit, those recognizances are estreated, the penalty which they have incurred by their default is levied, and, if they cannot pay that penalty, they are committed to prison; not formally, not nominally committed to prison,—no; but there they are kept till they give evidence, or till they have been sufficiently punished, by way of an example, to deter others from committing the like offence. This is the corner-stone of the administration of criminal justice in England, and if that stone be loosened, the fabric must be shaken to its base. How is it in Ireland? I may, now, as I come to this point, advert to the evidence. I mean to keep as nearly as possible to the letter of it in my statement; but, though I may have occasion to trespass at some length on your Lordships' time, I intend to trouble you with reading from the evidence as little as possible, probably not above a page or two. I am acquainted with every word of the evidence that refers to this question; if necessary for the support of my argument, I can refer to it; if I hear any dispute in the debate, I will read the examinations in reply; but, in the outset, I shall read as few extracts as possible. We have, however, again and again, throughout the whole mass of this evidence, the most undeniable proof that, in Ireland, the administration of justice is not, in this 1278 respect, the same as it is in England. In the former country, indeed, as in the latter, when a man refuses to come forward and give his evidence in a criminal prosecution, the recognizance is estreated, and the form of inflicting the penalty is gone through,—but that exists only in form which in England is substantial. In ninety-nine cases out of a hundred, where there is default, no fine can be levied, because the party is not in circumstances to pay anything; and, then, instead of being imprisoned in such an effectual manner as, by example, to deter others from pursuing the same course,—that happens, which must needs frustrate all criminal proceedings,—the offender is let out in ten, or twelve, or fifteen days,—the punishment being as nominal as to the estreat; so that, for this paltry suffering, this mere inconvenience, a man escapes the obligation of telling the truth, in execution of the law. And, my Lords in what country, and in what state of society, and in what kind of circumstances is it, that such a bad practice, calculated, on the one hand, to deter a man from volunteering his testimony, and on the other, to seduce him from giving his evidence, has grown up, and now universally prevails? Not in England, where binding over to give evidence is considered as little better than a mere form, where every person, so bound over, would come forward, were he secure from all penalty, and assured that nothing could ensue, horn his default; but in a country where there exists every circumstance fitted to deter a witness from coming forward, and every inducement calculated to prevail on him not to appear. The persons whose evidence is desirable, are either the friends of the parties accused, or possibly accomplices, or persons affected by circumstances which grow up in troublous times, and, having been thus connected together, are, in consequence, most likely to have a strong fellow feeling towards criminals accused of certain offences. Such circumstances unavoidably operate to produce a favourable feeling in the minds of the witnesses towards the criminal, and even towards the offence itself with which he is charged; and very little further inducement would altogether prevent them from coming forward to convict. But, then, there is the terror, the personal fear of maltreatment, nay, of death it- 1279 self, to co-operate with the leaning towards the criminal. All who give evidence know that their lives are not safe, if they perform their duty; and they are taught, by the practice of the courts, and the proceeding, that they may exchange the risk of murder for a fortnight's residence in prison. But, if the circumstances were of a much less extreme nature, if the terror were less, if the risk actually run by witnesses in giving evidence were less, if the accident of friendship, or alliance, or society, on the part of the criminal, were not so powerful to deter or seduce witnesses from their duty to the public, it is quite enough to say that the office of prosecutor, or accuser, or witness against a prisoner, is none of the most agreeable duties which men perform; and, consequently, the law—feeling for human weakness, and knowing the little chance which a mere abstract love for the administration of justice has, in competition with such feelings as personal fear, or good nature, acquaintance with or friendly feeling towards prisoners—the law—seeing the little chance which the mere abstract love of the administration of justice has, in producing the effect of making men accusers, or making them give testimony—does not trust to volunteers; it cannot reckon upon willing testimony, and it compels them to come forward—it obliges them to come forward—it binds them to prosecute—it makes them enter into recognizances, which may force them to give evidence. But in Ireland, where the motives of fear and favour are infinitely more powerful, a rule has grown up which makes the entry into recognizances a merely formal proceeding, and wholly unavailing to its purpose. In making this statement, I think I have laid sufficient ground for the first principle which I have laid down in my propositions. This principle affirms the expediency of rendering that process real and substantial, which, at present, is merely nominal—of making it certain, that, if a witness forfeit his recognizances, he shall suffer the consequences which the law awards, by being imprisoned when he cannot pay the penalty. My Lords, I now approach my second proposition, which, I will say, is to the full as important as the first—more important it cannot well be. It may be suffered, however, in comparing the two propositions together, to make this distinction be- 1280 tween them, in fairness to the Irish Government. I bring no complaint against any party for that which I have hitherto been describing; it appears to be a bad practice, which has grown out of a former state of things, and for which no one can be held, strictly speaking, responsible. I should be glad to have the satisisfaction of making the same exculpatory observation with reference to the head of the subject to which I am now about to refer. A high Irish law authority has, to my great astonishment, recorded, in writing, that a certain right of setting aside jurors in criminal cases, which has been acted on in Ireland, never existed in England—whereas the contrary is well known to be the fact. There is not, in this respect—whatever there may be in others—one law for Ireland, and another for England; it is in the power of the Crown to direct individuals who appear as jurors to stand aside without showing cause, until it shall be seen afterwards, that the pannel is exhausted by challenge or non-attendance, and that twelve cannot be obtained. This right, however, is more sparingly used in our proceedings. It was, until lately, the custom in Ireland to set persons aside, who entertained the same party feelings as the persons accused; where for instance, they had attended party meetings, and made violent speeches, taken part with the prisoner, committed themselves to an approval of his offence. For these and other matters of a similar nature, they were desired to stand aside until the legal number of jurors were sworn. But in 1835–6, the then Attorney General (Sir Michael O'Loghlen) gave an instruction with reference to this point, which has been the subject of much animadversion, and is worthy of grave consideration. That learned person assuredly directed the Crown prosecutors not to challenge any person "on account of his religious or political opinions," or, "except in cases in which the juror is connected in some manner with the parties in the case." Now, although no human being is, in a general point of view, more decidedly adverse than I am to making religious or political opinions the ground for an exception to a man, as to his holding an office under the Government, or as to his acting in the capacity of juror—still, I must say that I cannot go the full length of that peremptory exclusion, so strongly expressed in the instruction to 1281 which I have referred, and which forbids, in all cases, the right of setting aside on account of religious or political opinions; because I can well imagine a political trial, where everything may depend on having a jury altogether clear of party feeling, however clearly the fact may be proved. In such a case let your Lordships suppose one or more persons, on a jury, holding precisely the same violent opinions, and participating in the same feelings as the accused—feelings out of which the offence arose, and connected with which the offence needs must be;—is there not a probability that, however evident the proofs may be, a just result will be frustrated, and the justice of the case defeated, by the composition of the jury? But it appears, from these instructions to which I have referred, that no person is to be set aside except "he be connected, in some manner, with the parties;" so that, even if it should turn out that a person, about to be sworn as a juror, has expressed the strongest political opinions, and used the strongest language,—those opinions and that language being in accordance with the sentiments of the party accused, tending to excite the ferment out of which the crime arose, and thus making him all but an accomplice,—is he to be considered as a fit and proper person to be placed in the jury box, in order to sit in judgment on his fellow offender, because he is not directly connected with him, although deeply implicated in his offence? Sir Michael O'Loghlen, in his evidence, put a construction on these directions, which is altogether about the most marvellous I ever heard of. I examined Sir Michael very fully upon this point. I questioned him for nearly half an hour; and all the members of the committee to whom I have spoken on this subject, agree with me in opinion, that the explanation was very short indeed of being a satisfactory, or even a consistent or an intelligible, statement. He said that "he conceived that a person who bore no relation to the parties, and, consequently, did not come within the grounds of challenge stated in his letter, might still be set aside for other reasons." Now, in his written instructions, he states, distinctly, that jurors should be set aside only for the one reason. I then questioned him as to whether, if a person were grossly ignorant, or incapable of understanding a case, 1282 although not at all related to the parties, or liable to strong objection on the ground of his having committed the same offence for which the prisoner was charged, such a person should not be made to stand aside? His reply was, that that case would not come under his instruction; but that such a witness might be set aside. Now, this again, was contrary to the letter of the written instruction. His answer was similar, when questioned as to the case of a man of notoriously bad habits—nay, an accomplice with the prisoner. To that he said, "Oh! I never meant that he should not be made to stand aside." But what construction was put by the Crown prosecutors in Ireland on Sir Michael's instructions? Mr. Kemmis—no novice in office (he has filled the situation of Crown solicitor in Ireland thirty-eight years)—stated, upon his examination, that he should not con-skier himself justified in setting aside a juror for those reasons which I have just now hastily gone over to your Lord, ships, being the first that present themselves—rising up, as it were, in judgment against Sir M. O'Loghlen's rule. Thus, it appears that, in so important a matter as the composition of the tribunal, Mr. Attorney General gave his instructions to the Crown Solicitor in such terms, that he put one construction on them, while the Attorney General himself, put another—the person executing the order reading it one way, and the person giving it, another;—in plain terms, that one thing is intended to be directed, and another thing is deliberately done—and done inevitably, because the person acting under orders could not avoid putting on them his own construction. Now, if your Lordships turn to the evidence, not of parties hostile to the Government, but of men who agree with them in politics, you will find an almost uniform concurrence of testimony, to the effect that this system has very much injured the composition, by lowering the character, of juries in Ireland—retaining upon them many publicans, a class of men who are, of necessity, very much under the influence and control of the popular voice. That great class of offenders, designated Ribbandmen, exercise, naturally, a considerable degree of control over the proprietors of public-houses, where their meetings are, almost uniformly held. My noble Friend the chairman of the committee, knows more 1283 of the details of this part of the subject than any man. I appeal to him, whether it is possible to expect that publicans serving on juries will dare convict a Ribband offender? My Lords, the observation made by one of the witnesses on this subject, now in the employment of the Crown, is decisive. This witness says:—I do not say that publicans are not honest men, and would not be honest jurors; but, in the circumstances in which parties are, they dare not do their duty as honest, upright, and impartial men.Almost all the other evidence agrees in describing the juries as worse in consequence of the instructions; but to the universality of this testimony there is a remarkable exception—that of Mr. Cahill, who was appointed, in 1836, one of the Crown solicitors. The evidence of this gentleman is such, that, though he may be a very able solicitor, and a very respectable person in private life, still, in his character of witness I have not a very high opinion of him, how well soever he may perform the other duties of society. The reason for my entertaining a higher opinion of Mr. Cahill as a solicitor than as a witness, is founded on the following circumstance. Those noble Lords who attended the committee will not easily forget it. Mr. Cahill seemed to have an impression, from the beginning to the end of his examination, that it was a bad circumstance for those who gave him his appointment that he should have been a member of the General Association—this association being one of a factious nature, aiming at the repeal of the Union, or, at all events, the demolition of the Established Church, and the cessation of the payment of tithes. Mr. Cahill seemed to have heard that a charge had been made against him, and against his patrons, on that ground; and every part of the testimony he gave was tinged with the unpleasant recollection. He was asked,—Were you a member of the General Association held at the Corn Exchange a few years ago? I cannot now confine myself to the year; but I never was a member of any association having the repeal of the Union for its object,—for I never supported that.Were you a member of the last General Association that was held at the Corn Exchange in Dublin?—I think I was a member of that.Were you a member when you were ap- 1284 pointed Crown solicitor?—I am not quite clear that I was ever a member of that association. I cannot state that I was not.If you were, did you attend its meetings? —I have been present looking on; but I never took any part in those meetings.Did you attend as a member? Did you enter the room in right of being a member?—I am anxious to know whether I was a member. I am not certain whether I was or not?Was there any payment on entering the association?—I am certain there was.Did you make that payment?—I have no recollection. I am not anxious to deny I was, if I was. My impression is, that I was; and I should be happy to state what I recollect, if I could state it positively. I think that I became a member when it was first started, and took no further notice of it.He was examined for a long hour, in the same way; but we got nothing out of him. Although he had been a member of only one other association—or, at most, two—all his life—he did not recollect the objects of the General Association. He was asked,—Have you ever been a member of any other association?—Of the Catholic Association; and, I think, of an association—I forget what it was called—to support the Reform Bill.Have you any doubt that, at the time you paid a sovereign for admission to that association, you knew what were the declared objects of that association?—I cannot state positively that I ever did pay to the association, nor that I belonged to it; but I am not prepared to state that I did not. I never thought on the subject till the question was put to roe. I know I belonged to one or two associations. I may have belonged to that particular one; I am not positive. I am cognizant of the operations of every society, for I read them in the newspapers at the time, though I have not thought of them since.About what time was it that you left the association?—I do not recollect having ever resigned?Was it as early as 1834?—If I state the time, I must state that which I do not recollect.Have you a recollection whether it was one year ago, or ten?—I am quite certain it was not ten.Are you not certain it was not five? that it was held in 1834?—I am not certain.The former association you belonged to,—in what year was that?—I remember the Catholic Association was in 1835, I think.Another association besides that?—I do not recollect the particular date of that.You were a member of the Catholic Association in 1825?—In 1826, I think, I was a member.Did you attend the meetings?—I did. 1285 Did you attend frequently?—Very frequently, during the Catholic Association.Have you any recollection of the first time you went to the meeting of the Catholic Association?—I was present at a meeting of it in 1823; it assembled in a room in Capel Street, and I think there were seven or eight persons present.What an extraordinary contrast was here presented between the accuracy with which Mr. Cahill remembered a transaction that occurred sixteen years since, and his extreme shortness of memory as to whether he had ever been admitted a member of the Political Association, existing about four years ago, and very near the time when he received his appointment from the Government! Ask him about the recent transactions, he knows nothing; ask him about the remote ones, he is perfect, ready, minute,—can tell the street where the meeting was held, and the numbers that attended. This witness was further examined as follows:—Do you recollect who it was that first pro-posed to you to become a member of that association?—No; I do not recollect the fact of being proposed at all, or where I paid, or whether I have ever paid; I think it likely that I may have subscribed to it; I have spoken merely to the likelihood; but I can ascertain the fact.Will you undertake to swear that you were a member of it at all?—I stated, distinctly, that I would not.Why do you think you were a member? That is the impression on my mind; and, except that, I think that I cannot give any reason.Will you swear you ever attended any of those meetings at all?—I certainly was in the habit of going into the place; I was in the habit of going down and looking on.What is the last time you recollect being at either of these meetings?—I cannot state.Though you say you will not swear you did not attend ten times or more, have you any recollection of any one subject you heard discussed there?—I have not, of any particular subject, at any particular time.Do you mean to abide by that,—that you have been ten times to the meetings, and that you do not recollect any thing which was discussed at the meetings?—I have not stated that I was ten times there; but that I would not swear that I was not.Will you swear you were once there?—I am sure I was there repeatedly; I know I was.But, however great the number of times you were there, you cannot recollect any one subject that was discussed at that meeting?— 1286 There is not, in my recollection, any particular subject.Was any thing said about tithes?—Yes, I am certain there was, now that it is suggested to me.Any thing said about abolishing tithes?—Yes.Have you any doubt that that was one object of the meeting?—I remember it was.Have you any doubt, that, at those meetings, something was said respecting separating from this country, if they could not obtain those objects?—I never heard that spoken of; but that may have been in the declaration. Now that it is suggested, I think that that was referred to in it.It is wonderful what a plastic memory this witness possessed; and how, as if by sudden inspiration, he remembered, at once, when suggested to him, what was, previously, utterly beyond the range of his recollection. He was then asked,—How long have you held your present appointment?—Since January 1836.Had you ceased to attend before you got your appointment?—I never did any formal act of secession.But you have ceased to attend the meetings?—I do not mean to state that I have not been present at a meeting since my appointment; my recollection is that I have.Do not you know that the association was formed in the year 1836—I do not.But you will not swear that you ever attended a meeting of this General Association before 1836?—I cannot distinguish what the several meetings were about; there were continually meetings at that Exchange, and I was in the habit of going to those meetings, and I have not a distinct recollection of the several classes of meetings.In justice to Mr. Cahill, it is fit to add his answer to another question respecting the approbation of the magistrates of the county of his conduct in the discharge of his duty. He was asked,—Have you on any occasion, received any mark of approbation from the gentry and magistrates of the county, since your official appointment?—I received a vote of thanks from the gentry and magistrates of the county, Lord Donoughmore in the chair, for my activity in bringing the murderers of Cooper and Wayland to justice.But, in justice to the Government, it is also fit to record their gratitude. This gentleman, whose memory is so treacherous where he might be supposed to know any thing against his patrons, was, formerly, an election agent for Mr. Sheil, and owed his promotion to that gentleman's interest. Having shown the ambi- 1287 guity of the instructions, as well as their pernicious tendency, I now come to the other part of the second resolution,—that which regards uniformity of practice in respect of challenging. Your Lordships have already seen how the construction put by Sir M. O'Loghlen on his own instructions varies from that of the parties to whom they were addressed. But it appears that, not satisfied with giving orders that meant one thing and said another, the Attorney-General gave different direction to different men. Mr. Tierney, a Crown solicitor like Mr. Kemmis, said, that prisoners always challenge, in order to get low people and publicans on the jury. Not having received Sir M. O'Loghlen's instructions in writing, his course was guided by verbal orders,—and it was a course wholly different from Mr. Kemmis's. "I always challenge illiterate persons," said he; "I had verbal instructions from him, to challenge such persons, and spirit dealers." So it appears that Messrs. Kemmis and Tierney act under directly opposite instructions in this important particular. In May, 1837, Mr. Drummond sent instructions to the different Crown solicitors, that the right to challenge jurors should not, in any way, depend on the political or religious opinions of the parties; and that they should not, in any case, object to a juror, unless he were, in some way, connected with the case, or, for some ascertained cause, was unfit to serve. Now, the grounds were here just, and fairly stated. It is worthy of remark, that Sir M. O'Loghlen, one week after giving the instructions to Mr. Kemmis, gave instructions of a totally different nature to Mr. Hickman, the Crown solicitor for the Connaught Circuit. Was not this carelessness, in a matter so important, most objectionable? The instruction given by Sir M. O'Loghlen to Mr. Hickman was similar, in expression, to that which I have just cited as having been despatched in the circular, by Mr. Drummond, and included the words "unless the juror be, in some way, connected with the case, or, for some ascertained cause, is unfit to serve." Mr. Geale stated, in his evidence, that he had written to Sir Michael before going his circuit; and that Sir Michael, in his reply, "left him to use his own discretion as to persons connected with the case." Now, even if he had said, "Challenge all connected with the case,"—this is wholly different from saying, 1288 "Challenge all connected with the party." Then we come to Mr. Perrin, another Attorney General, whose instruction was widely different from his learned successor's and was as follows;—"I wish no man to be set aside by the Crown, against whom there is not a good and substantial objection." This was sound, and rational, and intelligible ground to take; but it no doubt looked plausible, and was probably very agreeable to the feelings of Mr. Attorney-general O'Loghlen, to have the opportunity of telling his own sect and party, "See what I have done; I have tied up the hands of the prosecutors. They can never challenge a man, now, on account of his religion or his politics." Thus, therefore, although the case might be deeply imbued with religion—absolutely steeped in all the rancour of sectarian animosity—though the quarrel might be a political one, and the denial of justice secured by empanelling, in the one case, a sectarian, in the other, a political, jury, notwithstanding this powerful, this decisive argument, it was ordered that no political or religious objection should ever be taken; and the Catholic Attorney-general, the partisan of a well-known faction (Sir M. O'Loghlen), had an opportunity of telling the Catholics and agitators of Ireland, that which Mr. Perrin never had dreamt of telling them, and which had never appeared in any of the instructions to Crown solicitors preceding the regimen of Sir M. O'Loghlen. He, first, and alone, could truly say, "I have excluded from all challenge, Catholics and agitators, who may now pass upon the juries that are to try offences growing out of and connected with ecclesiastical and political feuds." I must apologise to your Lordships for having dwelt so long on these details, the propositions which I have enumerated being almost self-evident; namely, that men bound to perform the duty of giving evidence should be compelled to fulfil their obligations; and that the law officers of the Crown should issue rational, intelligible, precise, and, above all, uniform, instructions. The two last heads of my resolutions are incomparably more important than the subject with which I have last occupied your attention. The first of these relates to the conduct proved, on oath, to have been pursued by the executive Government of Ireland with regard to the sentences of prisoners, and the course Adopted in remitting or altering those 1289 sentences, in reference to the learned judges by whom they were passed. Whether your Lordships look to the high functions discharged by those learned persons, or to the sacred interests involved in the administration of justice itself, this is a subject of the deepest interest, and of supreme importance. If any man should think that I am now coming on personal ground, I can only say, that if it be absolutely impossible to satisfy your Lordships of the necessity of laying down some rule for guiding the future operations of the executive Government in Ireland, without showing to your Lordships that necessity, by referring to the deviations made from it, and if the inevitable consequence be, that any individual may think himself personally aimed at; I, conscious of not having any such intention, must only appeal to your Lordships for my defence and protection against so utterly unfounded an imputation. Would to God that I could go through my task without even hinting at persons and at personal matters: but your Lordships will take into consideration the absolute necessity of the case, and will ask yourselves, both how it is possible to censure a bad practice without pointing towards the conduct which has sanctioned it by adoption; and, also, how a public duty of paramount obligation can decently be shrunk from, merely because its performance may bring into discussion the conduct of an individual endowed with official powers. Nevertheless, there are feelings which make the discharge of this duty as painful as it is imperative; and the only comfort which I can draw, in my present position, from the case before me, is, that the burden of the blame I am about to cast, does not rest exclusively, nor even especially, upon the Irish Government. They do not stand out alone, or without support; their conduct does not come before your Lordships unsupported, unapproved, even unpraised, by the whole of the Government at home. My complaint is not against the Irish Administration. No charge is made by me at all. But if, in the progress of my examination, any blame springs up,—if, in the course of my statement, any charge comes out,—it is urged, not against any single unprotected individual, but against the strong arm of the executive Government of this country,—a Government responsible for all the acts of their agents, se long as those agents stand unremoved,— 1290 a Government always, in law, responsible, but here, in fact, bound up together with their Irish servants; the Ministers in England have, in short, made themselves, regarding these transactions, one and the same with the Castle of Dublin. I will now proceed to this important question; and, passing over, for the present, any remarks upon the power vested in the Crown, of remitting or changing the sentences of prisoners, I will only take leave to state, that this is a high and eminent function, always to be exercised after mature inquiry, and with great deliberation. It should never be forgotten, that the judges, too, stand in an eminently responsible position; that their characters ought not to be lightly assailed, their privileges outraged, their authority set at nought. With respect to them, of all other public functionaries, you have no middle course between at once impeaching or removing them, and, while they continue unremoved, treating them as if they were alike irremoveable and unimpeachable. If there be in this world, one thing more inconsistent with itself, and with all sound principle, than another, it is to retain men upon the bench of justice, and hold them up to the hatred or the contempt of the people among whom they still sit to administer the laws. But I will now proceed to describe, from the evidence, the conduct which has been held towards these judges,—and which fully bears out the terms of my fourth resolution. It appears that a memorandum was made on paper by a clerk under the Irish Government, which memorandum was, by all, supposed to have been made under the authority of the Executive, which memorandum could not have been made, ex mero motu, by the clerk, which memorandum has, to this hour, never been disavowed by the Government in any way, but which memorandum, whether authorised or not, was acted upon, and was that which I will now describe. It was to the effect that no case, tried before Lord Chief Justice Doherty,—no case, on the trial of which he presided and pronounced sentence,—when it came to be considered by the executive Government, with a view to remission or commutation, should ever be sent to that learned and reverend judge for his advice upon its result, or for information upon its circumstances. I have, my Lords, administered justice; I have presided over the highest tribunal of 1291 the country; I have assisted your Lordships in the most important functions delegated to you by the Crown, and in the supreme judicial powers which you exercise by the constitution of the realm—as a minister of justice, and as a judge, my life has been passed in courts of justice; as a judge, I will still sit on your bench here, and elsewhere; I have known the reverend judges of the present time, and those who preceded them; I believe no man is more intimately acquainted with their various opinions, habits, and feelings, for no man has had more unreserved intercourse with them;—and I protest that I do not know any one of those venerable persons, the heads and administrators of the law of the land, who could have brought himself to believe in the possible existence of such a minute as I have described; nor could all my own experience in judicial or in political affairs have brought my mind to this belief, but for the evidence of the witnesses uncontradicted, and the silence—the expressive silence—of the Government itself. I will venture to add, that if it had been told the English judges that such a document existed, the answer of all of them, in one voice would have been, "Mistake, carelessness, error, misunderstanding, alone, could have given rise to such lines traced on any paper: depend upon it, 't is all wrong; it is a fabric of the imagination, and no such outrageous instruction ever existed; still less, could it have been acted upon by any executive Government." But how stands the fact? Has this been found to be a baseless creation of fancy? It is a reality as substantial as it is sad, as little to be doubted as it is much to be deplored; and, so far from not being acted upon, there were, in the course of two or three years, twenty-seven cases tried before the Lord Chief Justice, over which he presided with conduct unimpeached, upon which he pronounced the sentence of the law; and every one of those twenty-seven cases was referred, not to the Lord Chief Justice, but, as the evidence on oath shows, was submitted, in obedience to the terms of the minute, either to the Attorney-general, the Crown-counsel, the prosecutor's nominee, holding his office during the pleasure of the Crown, or the cases were referred, in nine instances out of ten, to the Crown solicitors, attorneys at law, practising in the Court of the Lord Chief Justice of the Court of Common Pleas, the 1292 second common law judge of the land. I will take one of these cases. There had been a trial for abduction, accompanied with rape: the charge of rape was abandoned, but the party was convicted of the abduction, and the sentence next in severity to that of death, namely, transportation for life, was passed upon the offender by the Lord Chief Justice, who found, the next time he went the circuit, that without any previous intimation to him, even of the ultimate result, still less, without any communication before the step was taken, the sentence so passed for so grave an offence had been changed to an imprisonment of twelve months; and he, to this hour, is utterly at a loss to tell on what grounds that change was made, nor can he even now, with all his reflection, imagine any reason for it. So, again, in the case of Mr. Reynolds, a political agitator, convicted of a serious riot before his Lordship and Mr. Baron Smith, an experienced and humane judge, who concurred in the sentence pronounced by the Chief Justice, a sentence of nine months' imprisonment. That sentence may, at first sight, be thought heavy; but it should be borne in mind, that this was not the first instance of Mr. Reynolds having been convicted of a similar aggression against the law and the King's peace. My Lords, shortly after the sentence was pronounced, a letter arrived from the executive Government, stating that the case had been referred to the Attorney General, and that he, for reasons stated, thought a great deal of doubt existed as to whether Mr. Reynolds had not been punished enough; and so, after two months' imprisonment, the other seven months of the sentence—pronounced by both the learned judges who had tried the case—were remitted. But it will be said, and naturally so,—"How did this arise? there must be some motive for this treatment of the judges, and for the extraordinary course which justice and mercy had taken." This brings me to the case of Gahan,—a case well known to the members of the committee, by whom it never can be forgotten,—and which it will, now, be my duty and my care to make known to your Lordships generally. Gahan was tried before Chief Justice Doherty, for having been party to a very gross and outrageous assault. He was indicted, by the mercy of the prosecutor, under the Irish Outrage Act, which provides a 1293 sentence of seven years' transportation for the offence,—though he might have been tried under a much more penal statute, and, indeed, for his life. In all my experience, I have never known a worse case. In Ireland it were an aspect of peculiar aggravation. The assault was upon four policemen. It arose out of no party quarrel,—it originated in no heated passions,—it was a cold-blooded, and it was a deliberate, attack; and it was clearly proved, by the unimpeached and uncontroverted evidence of all the witnesses, to be an attack upon the policemen, especially the sergeant, or commanding officer of the party, in revenge for his having given evidence, in a certain prosecution, which had led to the conviction of the offender. This fact gives the deepest colour to the offence. The crime went to the very roots of the administration of justice—it was an attempt to murder a man, in revenge for his having borne testimony, and to prevent his bearing tesimony again. Why do I say so? why call it murder, when it did not end in death? I do so on account of the injury, which was great. The sergeant's skull was fractured, his arm was dislocated, and two ribs were broken. It was also found that another ruffian leaped upon a second policeman, and with the weight of his body stamped upon him, and put out his shoulder. Am I, then, not justified in calling this a murderous attack? But I am not driven to conjecture the motive of this criminal from the act itself. Habes confitentem reum. For one of the ruffians, in encouraging his comrades, was heard to say,—exulting in his success, and after he thought he had disposed of the policeman by murder,—"He is dead now; he will never be a witness again." Another of the wretches had been heard to remind his accomplices of the place where they were to be in wait for their prey. Therefore, it is that I say, a more aggravated case I never heard of in the whole course of my experience and practice. At the trial, however, an objection was taken, that the policemen were not sober, and might not, therefore, be accurate in their statement of what had taken place; and this doubt as to their sobriety arose from one witness having said there was a smell of whiskey about them: but a medical gentleman proved that the smell of whiskey arose from their wounds 1294 having been washed with spirits; and the result proved that the men were quite sober, and had given consistent and credible testimony of the circumstances of the transaction; for the jury, to whose attention this circumstance was fully brought, found the man guilty; and the Chief Justice, having tried the case, and approving entirely of the verdict, sentenced Gahan to the maximum, of punishment known to the law for such offences, when not prosecuted under Lord Ellenborough's Act,—namely, seven years' transportation. This was at the March assizes; and, towards the end of that month, an application was made by Gahan to the executive Government for mercy. His memorial was considered, and the proper course was taken with respect to it; the learned judge was applied to for his opinion on the case, and for his notes the trial. The notes were furnished by the Chief Justice, who gave his opinion that he saw no reason to doubt the verdict or change the sentence; and the Government, acting on that advice, returned an answer, on the 6th of April, that the law must take its course. On the 16th of April, a second application for mercy was written, and, on the 17th, was received by the executive Government, in the shape of a memorial, not from the prisoner, but from his brother, who, as it chanced, is a Roman Catholic Priest. The memorial was couched in extremely offensive, and even insulting, language towards the learned Chief Justice; and it charged him with corruption and injustice; for it depicted him as a party tool,—"a judge," it said, "of the tight sort," and from whom neither the brother of the writer, nor any other in like circumstances, could expect justice. After four days had elapsed,—that is to say, on the 21st of April,—a letter was sent to the Chief Justice by my excellent friend Mr. Drummond. It was written by a clerk, but signed by Mr. Drummond. And here I must observe that, on the whole, it would be much better that such communications should proceed from a higher officer than an unknown clerk, who, though, very possibly, a respectable man, here did that which would not have been done if Mr. Drummond had acted in the matter, himself. This observation, however, applies much more strongly to the letter conveying a reprimand to the Chief Justice,—which ought, if written at all, to have been 1295 from the Viceroy himself, or the Chief Secretary. I trust I and not captious in making this remark; I hope I am not led away by habitual reverence for the judicial office, when I assert that they who hold it should be treated with all delicacy and respect, even by those administering the highest functions of the Government. But to return to my narrative. On the 21st of April, Mr. Drummond wrote to the Chief Justice, and called his attention to the case of Gahan—stating that it was to be reconsidered, though not informing the Chief Justice that the memorial from the brother was the ground for its reconsideration. That letter, however, inclosed the offensive memorial. It was sent on the 21st of April; and in a few days afterwards,—namely, on the 27th,—the Chief Justice wrote a letter in answer, stating that he was very much surprised at receiving so slanderous a communication, and still more that it should be made the ground for a reconsideration of the case. He sent it back with his notes; and added that he had deemed it prudent to keep a copy of the paper which had been transmitted to him. I understand that this now forms the ground for a sort of stigma on his Lordship. But it turned out that Mr. Drummond never intended to send the memorial to the Chief Justice; and it was urged in proof of this, that if any such intention had existed, the paper would have borne upon its margin the official note, "Refer to the Chief Justice." As that note did not appear on the margin, the inference now drawn is, that the memorial was not intended to be forwarded to the Chief Justice, but to the priest, with a reprimand for the expressions it contained, and a desire that those expressions should be expunged. There was, indeed, no official note on the margin, "Refer back to the priest," any more than there was a note, "Refer to the Chief Justice." It, however, stands on the statement of the Irish executive Government, that, by mistake, it was sent to the Chief Justice; and it has been sworn in evidence that the intention was, to let the priest have it back, with a reprimand: but this was not done at the time which might have been expected; and, therefore, I think there must be son e mistake,—at least, so the dates prose—for the minute of the Lord Lieutenant, referring it back to the priest, 1296 was produced, and was dated the 18th of April. It appears that it was sent on the 21st of that month, not to the priest, but to the Chief Justice, who returned it; and then it must, on the 22d, have been sent to the priest,—for the priest answers a letter, which he says, is dated the 22d, and says he has to express, not his contrition to the Chief Justice, but his sorrow for having given the Government any offence. He frankly avows it was his interest not to give offence to them; but he does not say one tittle of being sorry for having so scandalously outraged the Lord Chief' Justice by his libel. This, however, either from want of care, or owing to the multiplicity of business, did no strike the Irish executive Government; for this letter of the priest's was afterwards described by the executive Government as having expressed the most humble contrition for the offence offered to the Chief Justice; and it was described by a noble Friend of mine (Lord Morpeth), in another place, as a letter expressing humble contrition. In that place, the letter was not produced, but only the description of its tenour. In the committee we had the letter itself; and it was found to express no contrition, humble or most humble, except to the executive Government. Then, in point of date, came the explanation given to the Chief Justice, that the memorial was never intended to have been sent to him, but to the priest; and though the minute was dated the 18th of April, it was not sent to the priest either on the 18th, or the 19th, or the 20th, or the 21st, nor until the 22nd. Why, then, was there such haste in sending it to the Chief Justice, when four or five days were allowed to elapse before it was sent, as so early directed, they say, to the priest? However, the Chief Justice was bound to believe the statement given in the explanation, and he did believe it. In reply to that explanation, his Lordship said he never objected to their sending him the memorial; on the contrary, he seemed to think, that, if the Government were in the habit of receiving libellous attacks on the judges, it was better to send them to their objects, than keep them concealed. He rather thanked the Government for sending him the document—at all events, of that he did not complain; "But," said the learned judge, "what I do complain of is, that you—the Government—should act on such a letter; and that having de- 1297 cided on the case before the priest wrote the libel upon me, you should make that libel the only ground for a reconsideration of this felon's case." The Chief Justice's complaint, and its grounds, were now, at length, understood by the Government; and then came the minute of the Lord Lieutenant of the 29th of April, stating that the learned judge was mistaken in supposing that the offensive memorial of the priest was the cause of reconsidering the case of the prisoner Gahan, and affirming that the reconsideration of the case was owing to—what do your Lordships suppose?—to verbal communications of persons not named—not alluded to—not described; and never before, in any way, general or specific, so much as hinted at; but, among others, one was named,—the Attorney General himself. I am quite certain that there could be no intention to fabricate this reason, wearing, though it does, the semblance of an after-thought I am sure there could have been no wish to state that which was not true; but I am equally certain, that from some inadvertence,—perhaps in the hurry of business,—an excuse, in point of fact, was made to the Chief Justice, which was totally devoid of foundation in fact, and which is now distinctly and peremptorily negatived by the evidence. I am bound to state this most painful part of the case, how much soever it may cost either others or myself. I entreat the attention of your Lordships while I point out, to demonstration, that the letter of the priest was the cause, and the only cause, of the case being reconsidered. The whole course of the dates would prove this in any court of justice, civil or criminal, where men were accustomed to regard What is proved—not what is asserted by parties on their own behalf. First, there was the letter of the 6th of April, stating that the law must take its course; then came the priest's letter of the 17th; and then, and not till then, was it that the second consideration of the case was determined upon. Next came the minute of the 18th to refer the priest's letter back to him; but which was not so referred until the 22nd, having been sent, in the mean time, by mistake, as is said, to the Chief Justice. Then followed the priest's answer of the 23rd; next, the letter of the Chief Justice of the 27th; and then, for the first time, the statement was made by the minute of 1298 the 29th, that other grounds besides the priest's letter existed for a reconsideration; but this was not until two days after the Chief Justice had complained. It was to meet his complaint that this disconnection of the priest's letter and the reconsideration of the case was first made, or attempted to be effected; then came the communication of the 30th of April, from Mr. Drummond, stating to the Chief Justice that the letter had been sent by mistake to him; and lastly, there was the note of the 7th of May, in which Mr. Drummond reprimanded the Chief Justice for having kept a copy of the slanderous memorial—a very venial offence, as I conceive, in a judge so attacked, and who perceives the executive Government so far patient of the attack upon him, as to act upon the representation of its author. But the Attorney General, it seems, was very much staggered at this proceeding on the part of the Chief Justice, and considered it to be a strange and a reprehensible thing for the learned judge to proceed to consult his friends and brethren upon the bench on the matter, He could not comprehend how any judge, when so attacked, should have any wish to defend his judicial character. Why, really, I should think a man would be very stoical indeed, if, when so assailed by libellous memorials to the Government, he did not take some notice of them,—if he did not adopt some precaution against them,—if he did not consult his friends upon them. Chief Justice Doherty did consul with five of the other judges, and they all approved of his conduct. But it was asked of the learned Attorney-General in the committee, whether, if the learned judge had not taken a copy of the libel, the Government would have given him either a copy or the original? "Oh, yes," said Sir Michael O'Loghlen; "no doubt they would. These things are given, as a matter of course, to parties libelled, if they apply for them." Are they, indeed? Then this is the first time I ever heard of such a "course of office." It is to me quite new, that a Government should give up, as of course, and whenever asked for it, either the original or a copy of any letter defamatory of a judge on the bench, or any other functionary, sent to any public department. But I return to the circumstantial evidence which connects the priest's memorial with the Government's reconsideration of his brother's case; and I have to add that the 1299 dates of the letters form one ground only for saying that it is absolutely impossible to disconnect the second inquiry with the priest's application. Those dates are not the only ground upon which I raised my conclusion; there is Mr. Drummond's note, and there is Mr. Drummond's evidence,—both of which clearly confirm the view I have taken of the matter. On the 21st of April, "he presents his compliments as stated in page 129 of the evidence) to the Chief Justice of Common Pleas, and begs to send the Lord Lieutenant's minute in reference to a further application in behalf of Joseph Gahan, tried; and to request the Chief Justice will be so good as to send a copy of his Lordship's note of the trial." This minute referred to the priest's memorial, no doubt; it could not, by possibility, refer to anything else: but it was not till the 29th of April that anything was heard of the other verbal cornmunications,—and, above all, of the Attorney General's communications. So much for Mr. Drummond's note, written at the time. His evidence is still stronger, if possible. He is asked,—What is the further application here alluded to?His answer is,—The case had been under the consideration of the Chief Justice before, and the Lord Lieutenant had decided that the law should take its course.There is a letter dated Dublin Castle, the 6th of April, 1836—" My Lord, with reference to the report of the 30th ult. on the case of Joseph Gahan, prisoner in the gaol of the county of Wicklow, under sentence of transportation, I beg to acquaint you that the law must take its course?"—Yes, that was the letter.Looking to the note of the 21st of April, to which your attention has been called, what is the further application there alluded to?—The further application was a memorial from the brother of the convict,—I apprehend, a priest.The committee are to understand that that is the further application to which allusion is made?—I apprehend it is.So did I, as well as every body else, apprehend. Nobody could apprehend otherwise than that the priest's memorial was acted upon, and occasioned the case to be reconsidered, as the Chief Justice supposed, and as the Lord-lieutenant's minute denied.
Then he is asked, what other verbal communications there were? and he says 1300 he knows of none. But I am not left to conjecture, as to whether or not there was some mistake in the minute of the Lord-lieutenant of the 29th of April, which at once puts the reconsideration upon a communication from the Attorney General; because the Attorney General, himself, has been examined to this point, and he not only denies all such verbal communications, but proves that it was impossible for them to have taken place. He is asked,—Had you ever been spoken to on the case before the Lord Lieutenant spoke to you?—I do not think I ever had.Are you quite certain you never volunteered any observations?—The reason for using the term "volunteered" was, that the minute of the 29th of April implied that proceedings were volunteered by the Attorney General; for it said, "in consequence of verbal communications and suggestions from the Attorney General."Are you quite certain that you never volunteered any observations?—Perfectly certain; I never originated any observations, and know nothing about the case, further than having directed Bayly to be prosecuted, until I was spoken to, as I said, by the Lord Lieutenant, or his secretary, or some person connected with the Government.Do you know any other cause for a second investigation of the case, except priest Gahan's memorial?—I do not know any other cause for a second investigation, except what I perceive from perusing the minutes of the Lord Lieutenant to-day and yesterday—that the Lord Lieutenant had a recollection of Judge Moor's previous report upon Connors's case.Did you know anything of Judge Moore's report, except by its being communicated to you by Government?—Never; I never heard of it till the papers came to me.And it appears that Judge Moore did not make his report until the 11th of May, the reference to the Lord lieutenant having been made on the 18th of April. So then, it was impossible that the reconsideration of Gahan's case could have been owing to any communications from the Attorney General; he declared that he never made any, nay, more, could not make any, for he knew nothing of the subject. But after all this, which made the matter quite clear, came a vague and deceptive answer, obtained not very fairly, from Mr. Drummond, who was asked a question which was calculated to deceive a cursory observer, though assuredly 1301 not one who understood the case. Mr. Drummond, who knew nothing about the Attorney General at all, or the communications said to have been made by him,—was asked, by way of salving over the wounds made in the other parts of the evidence by the dates and facts given in that evidence,Had any communication been made to to the Lord-lieutenant respecting the reconsideration of this case of Gahan, after the 6th of April?—do not remember that.Upon a review of the whole of the case involving the commutation of Gahan's sentence, would you say that the Lord-lieutenant had acted upon the report of the Attorney General, or upon the memorial in favour of Gahan, sent in by his brother, the priest?But, then, the question was not as to the ultimate decision, to which, alone, this measure refers; for here the words "had acted" must be particularly observed, because, on the 29th of April, the Lord-lieutenant had not commuted the sentence at all; that did not take place until six weeks afterwards. But the "acting" alluded to in the previous questions, on which the whole dispute turns, was the sending for the judge's notes, in order to a reconsideration of the case; the re-opening of the question already decided; and the re-opening it upon the insolent, offensive, and slanderous letter of the priest, the brother of the convict. The answer was—"That he acted upon the report of the Attorney-general, of course." But does not any one see that the drift of that question and answer would be, to lead the mind of an inattentive observer away from the fact, that the decision, as to reconsidering the case, was not founded upon the Attorney-general's representations? The Lord-lieutenant says, in defending himself against the Chief Justice's complaint, that the priest's memorial had occasioned the reconsideration of the felon's case. "We acted on the Attorney-general's suggestion, not on the priest's memorial." The Attorney-general says, "That is quite impossible, for I never made any suggestion at all." Mr. Drummond says, "That is impossible; the priest's memorial was the thing acted on." But, then, an insidious question is put, in order to confound this plain matter; and because the answer is, that, in commuting the sentence, not in reconsidering the case, the Attorney-general's opinion was taken and acted on; therefore an attempt—a despe- 1302 rate attempt—is made to confound the two stages of the transaction,—the beginning with the end, the act of reconsidering with the act of deciding on that reconsideration, and so to make the statement in the Lord-lieutenant's minute wear—falsely wear—the colour of fact. The real fact is, and no one can affect to doubt it, that he had acted in the spirit, and according to the letter of that strange memorial which came from the priest. The Chief Justice remained of his former opinion: he had sent for the notes of the case, and re-examined them, but he was only confirmed in his opinion. Yet, in the teeth of the deliberate opinion of the judge,—in the teeth of the previous declaration, "Let the law take its course,"—and in despite of all that had since passed, showing that there was no ground for a change of opinion, but that the judge was right in repeating his deliberate advice in favour of the law taking its course against this atrocious criminal,—an appeal was made from that judge, from the Lord Chief Justice, who tried the case,—who had seen and heard the witnesses,—who had sifted the evidence of the witnesses,—who had seen the jury and charged the jury,—who had approved of their verdict—who had deliberated on the sentence he pronounced,—who had twice over considered it, and twice over deliberately come to the same decision,—an appeal was made from this judge, who was cognizant of the facts, who recollected the jury and the witnesses, and whose mind was imbued with the whole particulars of the case, whose authority was paramount to dispose of the case,—from that reverend judge, who was the most able to decide aright, and who had repeatedly reconsidered the case, and decided thereon in the same way as at first,—from him was an appeal made to Mr. Attorney-general, of the same sect with the priest, the author of instructions respecting religious and political opinions upon trials, the individual who gave the evidence to which I have adverted already, who construed his own instructions so differently to one and another of his subalterns,—to him who had seen no witnesses,—who had seen no jurors,—who had heard no arguments,—who had given no consideration to the case,—and whom all the evidence convicts, and more than convicts, of an utter and hopeless ignorance of all the particulars,—to him was the appeal made,—front the knowing, the 1303 qualified, the capable, to the disqualified and the ignorant was the appeal made; and, as might well be expected, a decision was given, utterly and absolutely wrong. I affirm it to be glaringly, and without any dispute, wrong. I will go further; let any twelve lawyers of Westminster Hall—any twelve jurors in the country—any twelve men who never served as jurors, and knew nothing of the practice of the law—have the case laid before them; and if any one of those, understanding this case, has a shadow of a doubt remaining on his mind upon reading the evidence—ay, reading the evidence of Sir Michael O'Loghlen himself,—I go not beyond his own evidence,—and I say, if any one being, who can read and understand it, has the shadow of a doubt on his mind that, up to this hour, Sir Michael does not understand a tittle of the case,—either cannot, or will not, I do not care which,—but, at any rate, does not understand the case,—if any one of those twelve lawyers, or laymen, or jurors, or non-jurors, will say, he has any doubt that Sir Michael O'Loghlen does not, even now, after all his examinations, understand the case; then I will say, that I do not understand the case, that Lord Chief Justice Doherty does not understand it, and that all the noble Lords who served upon the committee are plunged into the same hopeless incapacity to comprehend one of the plainest cases that I have ever seen in the course of nearly forty years' professional experience. To go through the details would be quite superfluous; but with these I am, of course, ready; and if I shall see any attempt to set the opinion of the Attorney-general against that of the Lord Chief Justice, in this case of Gahan, I pledge myself to demonstrate, although the ignorant man has reversed the judgment of the man acquainted with the case, that Gahan ought not to have been set free. But he was allowed to go free, though he was one of the greatest criminals that ever disgraced humanity, for his intention was to commit murder—he had laid a plan to commit murder—he thought he had committed murder—he gloried in having, as he believed, effected his diabolical purpose, and boasted that he was a murderer. Such a man was allowed to go free. The Attorney-general, who was ignorant of his case, reported in his favour, on the ground that, a year before, Judge Moore tried another party, named Connors, connected 1304 with the same outrage,—there being a doubt in that case whether the policemen were sober or not. But the jury, notwithstanding that doubtful circumstance, returned a verdict of guilty. The judge was so far satisfied of the prisoner's guilt, that he pronounced upon him the maximum of punishment which the law allows; and no application was made by him to the Government to alter the sentence, nor was there any change of opinion intimated, nor was there any hint that he doubted, until the Government applied to him, in consequence of a memorial on behalf of the prisoner from a county Member. Then it was that he doubted for the first time, and reported to the effect that a question existed about the identity of the man; which, in plain English, if it meant anything, was a doubt of his guilt,—and, in fact, was an acquittal. But, then, because he had this doubt, what was the non sequitur? A free pardon to Connors, who was nut guilty, but who was mistaken for another man? No; but that he should be imprisoned for twelve calendar months! Because he did not commit the offence, therefore he must be imprisoned for twelve calendar months—the greatest punishment which, till a few years ago, the law awarded for the worst manslaughter! I leave your Lordships to determine whether or not much weight is ascribable to the opinion of a learned judge who comes to such conclusions. But if his mind be smitten with some strange want of apprehension, his malady scenic to have been contagious; it extended to the Irish Government. There was a person, a Catholic, named Comyn, tried before Chief Justice Doherty, for stabbing a Protestant; he was found guilty, and sentenced to seven years' transportation. An application was made to the then Lord-lieutenant (Lord Haddington), who decided that the law must take its course. It appeared that an alibi was set up at the trial, but the Lord Chief Justice left the case to the jury, as, indeed, it would have been left, whether an attempt to prove an alibi had been made or not. But the remark of the late Baron Graham, that "an alibi oftentimes turns out an ibi," was here verified; because the evidence brought the offender into immediate juxtaposition with the very place, time, and circumstances of the offence. The jury saw no alibi at all; but they saw that the attempted alibi only proved the case. They returned a verdict of guilty, and Chief 1305 Justice Doherty sentenced the prisoner to seven years' transportation. A second application was made to the Government, now administered by Lord Normanby; and it was stated, in a letter from the Under Secretary to the judge, that his Excellency, having maturely considered all the evidence on the judge's notes, arrived at the conclusion, that, had he been one of the jury, which he was not, and, probably, never had been on a jury in his life, he would have believed in the alibi of the prisoner, and would have acquitted him altogether. Therefore, it was not unreasonable to expect that his Excellency should come to the conclusion that the man should be set free. But did he? No. His Excellency, after the manner of Judge Moore, added, that, because he believed the man not guilty, therefore he directed him to be imprisoned for twelve calendar months. So that, in Ireland, one man is imprisoned fur twelve calendar months, because it is not proved that he, rather than some other man unknown, committed the offence charged against him; and the other, because he is proved to have been absent from the place at the time the offence was committed. This, I surely do think, is the strangest manner of administering criminal justice that any human being ever heard of in this world. But though the Lord-lieutenant falls into Judge Moore's inconceivable error in Comyn's case, he sees the absurdity in Connors's, and sets him free. My Lords, let us now consider the difference in the conduct of Sir Michael O'Loghlen, with respect to the case of Gahan, and that of Mr. Slye. The Attorney-general said, that nothing could have induced him to put Gillian on his trial after Connors's liberation; and now let your Lordships follow me for a few moments, that you may see the very different mode in which Slye was treated. A certain priest, Walsh, it was stated, had fallen from his horse, while gall opping along on his way from a market, arid was found dead; and what was the result? He was a Roman Catholic priest: and forthwith a cry was raised that he was a murdered man—it was impossible that he could have died a natural death. No evidence, however, for a long time, could be obtained that Walsh had been murdered; but at last the Roman Catholic priests took an active part in the matter, and a clamour was raised that Mr. Slye, a gentleman farmer, and a Protestant, had mur- 1306 dered the priest. Mr. Slye, beside being a Protestant, had made himself rather active, politically, in his county. A gentleman of the bar—a Queen's counsel—was sent down to investigate the case, and to collect evidence. Ann Rooney was brought forward, and swore, in the most positive terms, that she saw the priest murdered; but that evidence was positively contradicted: and it was proved, beyond the possibility of doubt, that she could not have seen the priest murdered, because she was, herself, confined in gaol at the time when she declared that she saw Slye murder Walsh. But was Slye let off? No such thing! If I had been the Attorney-general—if I had instituted these proceedings against Slye—if I had placed Rooney in the position of being examined before a magistrate—and if I had seen her evidence thus disproved—I should have opened my ears very reluctantly to any witness of a similar stamp, who came to tell a story so direct as to carry along with it the strong marks of improbability. But Sir M. O'Loghlen produced, or at least received—I will not say welcomed—ano-ther witness of the same stamp. Thomas Corregan swore he had heard Slye confess that he had murdered the priest. There was, of course, no improbability in that statement—no reason to doubt that Slye had confessed himself, in the hearing of a witness, guilty of this murder! Such was the very improbable story of Corregan. But was it disbelieved? Was it refused to be acted upon by Sir M. O'Loghlen, who would have declined to try Gahan because Connors had been half acquitted? No such thing. The Attorney-general was still desirous of putting Slye on his trial, though not on the evidence of Rooney, or of Corregan, nor even on the report of Mr. Tickell. He sent for Corregan to examine him, as one of his subalterns, Seed, swears, and as he himself says, to have him examined at Dublin; and what was the result of that examination? Sir M. O'Loghlen said, "Let us get, if possible, other evidence to produce against him." Very proper, and very just. Still, Slye was put upon his trial: Corregan was produced as a witness, and other witnesses were brought forward whom they did not dare to examine, or even to show; and yet all the world knew, beforehand, that Corregan, the only witness, whom he did produce, was nor to be relied on. And why do I say, that the Attorney- 1307 general showed a want of confidence in the evidence of Corregan? In the first place, he must have doubted the story put forward by Corregan, that he had heard Slye confess the murder of Walsh; and, in the second place, from his second examination of Corregan, he must have been persuaded that he was not to be trusted, because he said that he wanted other evidence. But that is not all; he had actually sent down a short-hand writer to take Corregan's evidence on the trial, because it was expected that Corregan would perjure himself, and he wanted to be provided with evidence to convict him of perjury. They tried Slye on the evidence of this man; they relied on his evidence, and Slye was acquitted, because the witness was guilty of the grossest prevarication. A witness was produced, who, it was allowed, was not to be trusted—who was expected to perjure himself—and whom the Attorney-general so much doubted, as to send a short-hand writer in order to obtain evidence to convict him of the perjury which he expected him to commit. No wonder that the Attorney-general distrusted Corregan. It was proved that he had gone to a police officer, named Patterson, and tampered with that officer to correct his day returns; because those returns would have proved that Corregan was in the barracks at the time he swears to hearing Slye's confession. Patterson refused to alter his returns; and what was the result? He was dismissed from his office. Patterson presented a memorial, asking to be tried, and desiring to know the reason which led to his dismissal. No trial, no explanation, was, however, granted; even though the magistrates under whom he acted approved of his conduct, and strongly recommended his memorial for consideration. I do trust, that some account of this extremely strange dismissal will now be given. All that we know at present is, that a man has lost his place and his bread, because he refused to be a party to suborn the perjury plotted for destroying an innocent man under colour of law. There might have been some just reason for the dismissal of Patterson not connected with this subject, but the case certainly requires explanation; and even although sufficient reason could be shown for that dismissal, the case of Slye would not be affected by it in the smallest degree. Strong recommendations were 1308 made to Mr. Maloney, not to put Slye upon his trial on the evidence of Corregan but that gentleman persisted, saying, that his orders from the Attorney-general were peremptory. Compare his evidence with Captain Vignolle's, read his second examination especially, and there can, on this, be no kind of doubt. Nor was it to be wondered at that those recommendations were made. Patterson's statement in regard to Corregan had become known; and so suspected was Corregan of an intention to commit perjury, that the Attorney-general (wisely, as it proved) resorted to a step which no English counsel would have dared to adopt—that of seeing privately the witness he meant to call according to Seed's evidence, that of making another king's counsel see the witness, according to his own account. But it is also found that he sent a short hand writer, in order that he might have evidence to convict his own witness of perjury. Yet under such circumstances, the Attorney-general allowed the case against Slye to go on; and what was the result? Slye was acquitted. I need hardly acid, that there was not a tittle of' evidence, that could be relied on, to convict him. In the justice of that acquittal I fully concur, as all men must. It is now generally acknowledged that the verdict, so much attacked, at first, by the priests and their mob, was a proper one, and the only one that could have been given. Even the Roman Catholics, once so vehemently excited against it, and against Slye, are now convinced that the case against Slye, was a fabrication from beginning to end. But, although Slye was thus justly acquitted, what became of the witnesses who were produced on his trial? They failed to convict Slye; but Slye did not fail in convicting them. Ann Rooney and Corregan were put upon their trial for perjury; and in connection with that trial, there is a circumstance which may be worthy of your Lordships' attention. Was the charge of perjury laid upon the informations which had been sworn by these infamous persons? No; by a somewhat suspicious fatality, those informations were not to be found at the time of the trial. They had, it was said, been taken from the office of the Crown solicitor, and it was believed, by the friends of the parties charged with perjury, because the Crown solicitor's office had been besieged by the priests during 1309 Slye's trial, and before it, and the informations had never appeared till the appointment of your Lordships' Committee, when it was stated that they had been found one day by one of the clerks. Those informations, then, were not produced at the trial; and Corregan was not, in consequence, tried on the evidence contained in them, but on the evidence of the short-hand writer's notes, who had, with a provident caution, suited to his knowledge of his witnesses' character, been sent down by the Attorney-general. This perjured murderer—for he was nothing else, who attempted to swear away the life of an innocent man—was tried on those notes, which were made by the precaution of the Attorney-general. Rooney and Corregan were both convicted of perjury, and were sentenced to be transported for life. Such is the case of Slye—such is the difference between the treatment, by the Attorney-general, of Gahan, and of Slye. When I consider the conduct of the Chief Justice, and compare it with the conduct of Sir M. O'Loghlen, I can have no hesitation in concluding as to who acted with most propriety, and with the greatest regard for justice. I hold it to be clear that the proper course to be taken in applications for mercy is, to consider maturely, and to weigh calmly, the whole circumstances of the case; and 1 will say, also, that the case should be considered with all the aids and with all the lights which can possibly be obtained, in order to arrive at a sound determination. I am of opinion, that all such applications should be considered with the assistance, the invaluable assistance, of the judge who tried the case. The judge has seen the criminal—he has examined the case—he has seen the jury—and, above all, he has seen the witnesses,—and if any one think that any Attorney-general, any Crown lawyer, or any lawyer whatever, is able to form a better or safer opinion, as to the merits of an application for mercy, than the judge, I may marvel at such a man's confidence, but I cannot envy his soundness of judgment. Again, my Lords, I am clearly of opinion, that to treat a judge as Lord Chief Justice Doherty has been treated, was to make a black mark against his name, to stamp him with a mark of degradation before his fellow judges; and, before the profession, to declare to every counsel, to every lawyer, to every clerk, and to every appren- 1310 tice in every attorney's office, that the Chief Justice is not to be treated as if he were one of the King's judges; and that, while allowed to bear about the King's commission as a badge of honour, as a mark of authority, as an emblem of power and of justice, he is all the while to be scorned and reviled as unfit to exercise his high functions, and as unworthy of having any one case which he has tried sent before him for his consideration, when an application for mercy is made. Such treatment of a judge I hold to be most improper, most unwise, most unjustifiable, and most indecent. If the judge erred, if he did wrong, if he be obnoxious to censure, let him be brought to his trial; let him be put on his defence; or let Parliament be called upon to address the Crown, and to ask for his removal; but, as long he is allowed to hold his commission, and to exercise the high functions with which it invests him, it is utterly unjustifiable, whether you consider the sanctity of the law, or the venerable aspect of the representative of justice, to treat him as a criminal, while you suffer him to fill the office of a judge. The administration of the law can sustain no such injury as thus degrading, for some miserable party purpose, the sacred character of its oracles. I now come to that part of the subject which relates to the granting of pardon; and in the observations which I have addressed to your Lordships, I have already, in some degree, anticipated what I have to say on this important head. I have, no doubt, passed over some matters which are perfectly familiar to my noble Friend (Lord Wharncliffe); but I have thought it right to direct your attention towards those matters which bear upon the result, and touch the principle, rather than to any particulars unnecessary to the case. I will now deliver my opinion to your Lordships, as to the high power of granting pardon, vested entirely by our Constitution, in the Sovereign, for the purposes of paramount importance. It is not a power confided to the Sovereign merely for the gratification of feelings, however praiseworthy those feelings may be; much less to be wielded arbitrarily, or under the guidance of personal caprice. When the monarch, clothed with the high functions of his office, exercises this ancient prerogative, he may riot, without mature consideration, yield even to the most amiable of his feelings, and allow a love of mercy to 1311 overcome a sense of justice. He is to act with a due regard to justice, and to mercy also; but mercy is not to be exercised till the whole facts of the case are ascertained; for the knowledge of all the facts ought, above all, and before all, to preside over the administration of mercy. In truth, the attribute of mercy forms a part, only, of the function of justice; for the law, if executed in all its inflexible rigour, would become odious and intolerable; an occasional mitigation of its awards is, therefore, necessary to its existence. But, it is after due inquiry, it is by regular means, it is in solemn form, that this attribute must be displayed to the people. The throwing open of prisons at coronations, and liberating prisoners confined for small faults, and it is only persons guilty of small faults that ever were liberated on such occasions, and the jubilee pardons of other days, though most of those pardons were granted with the sanction of the Legislature, are practices now obsolete, and which have been expunged from our Constitution and its operations, with other traces of a more barbarous state of society. I know not that I need trouble your Lordships with any authorities to support these positions, or to illustrate the mode in which the prerogative of mercy should be exercised; but, perhaps, it will not be out of place to quote a few opinions of men whose sentiments are entitled to the greatest deference, as the fountains of our jurisprudence, and best expounders of our mixed Constitution. In the first place, I will quote the authority of Staunford, which shows, in the clearest manner, the sense of the law on this subject. Staunford says, that the Sovereign ought to have the power of pardon; but that the power ought to be exercised only when it can be done without violating his coronation oath, by which he swears to administer justice with mercy. The Statute of Northampton also defines what the cases are in which mercy can be exercised. Homicide in self-defence, and homicide by accident are alone specified. The preamble recites the abuses of the prerogative of pardon, and restricts it in future to these cases. Bracton also says that investigation should go before pardon. He observes—Et licet tutius sit reddere rationem miserieordiæquam judicii tamen tutissimum est palpebras ejus ito procedere gressus suos, ut judicium suum nec vacillet per incircumspectionem—nam cum indulger judex insigni delicto, non- 1312 ne ad prolapsionis contagium provocat universos?In the same way, Lord Coke, in his Third Institute, says, that there are three modes of preventing crime, which, he justly adds, is always better than punishing: the first of these is good education; the next, the execution of good laws; and the third, that pardons shall be very rarely granted, and only granted on the reasons assigned, that is, after full and deliberate investigation. Last of all, Mr. Sergeant Hawkins, in his well-known work on the Pleas of the Crown, makes use of these remarkable words:—This is very agreeable to the reason of the law, which seems to have intrusted the King with this high prerogative, upon a special confidence that he will spare only to those whose case, could it have been foreseen, the law itself may be presumed willing to have excepted out of its general rules, which the wit of man cannot possibly make so perfect as to suit any particular case.Having seen, then, what are the principles which should guide the exercise of this high prerogative, it becomes your Lordships to inquire whether there are not some circumstances connected with the late administration of this prerogative in Ireland, which call on your Lordships, by way of future example, to declare what is the mode in which mercy ought to be administered. It appears, that persons to the amount of 240 were discharged by verbal order, in the course of a progress which his Excellency the Lord-lieutenant made through part of Ireland, in the summer of 1836. The evidence on this point is contained in pages 253, 256, 346, 461, 469, and 905, of the Report. The course of proceeding was this;—his Excellency came to a town, and visited the gaol, attended by the gaoler, and followed by a great concourse of people. He then had the prisoners—or, I should rather say, certain of the prisoners—drawn up, and paraded in the prison; and those prisoners were such as the gaoler chose to recommend for liberation. But there were very often many prisoners left behind, whose cases were not considered at all. This, for instance, was the case in the gaol of Clonmel, where fifty-seven prisoners were discharged, and 200 left in the gaol, without the least inquiry into the circumstances of their conviction. Everything, therefore, depended on the fiat of the gaoler. Your Lordships will now observe in what 1313 manner the judgment of the gaoler was considered, and to what extent it was reckoned decisive. The gaoler stated that he recommended several prisoners to the Lord-lieutenant for discharge, and that his recommendations were adopted. He stated that the chaplain of the gaol was there, but the gaoler did not know whether the rev. Gentleman was asked if he could recommend a prisoner for discharge, or not. He, however, interposed in one case, and it was lucky that he did so; for it had happened to him to be present at the trial of two of the men who were recommended to be discharged; and it appeared, that they had been found guilty of manslaughter under circumstances very nearly amounting to murder. This the chaplain, whose name was, I believe, Bell, represented to the Lord-lieutenant; and his Excellency, very properly, attending to the representation, the men were not discharged, but remained in prison, and were transported for life, according to their sentence, instead of being set free, in consequence of his Excellency thinking they were well-behaved men, and sufficiently punished. There was another person, named Dee, who was under sentence for an assault, whose discharge was recommended, but who was, nevertheless, not liberated by the Lord-lieutenant. The account which the gaoler gave of it was this, and it serves to illustrate the power and prerogative of gaolers on those occasions:—His Excellency, at the last section of the New House of Correction, turned round and said, 'Now, Mr. Prendergast, if there is any other man you would name, I would discharge him on your recommendation.' I turned round and saw a man of the name of Dee, whom I considered a well-behaved man; he had been about eighteen months in gaol. I mentioned his name, and Ryan stepped up and said, 'My Lord, I beg leave to differ with Mr. Prendergast about him;' and I was so confounded I could not speak, the man came forward in such a way.Mr. Prendergast was, very naturally, confounded, when he had just been invested with the prerogative of mercy by delegation from the Viceroy, that it should be suddenly, untimely snatched out of his hands, in this way, by an obscure individual, like Ryan.Ryan said, when he was overseer of the works, he had a complaint against the man. I assured his Excellency that I had never heard of it;1314 —and, therefore, the offence was not committed, I suppose.Ryan said he had been obliged to punish him; and his Excellency was kind enough to say, if the man continued to behave well a couple of months, he would discharge him. When his Excellency went away, I was so confounded at this man's coming forward, I felt very uneasy. I went to the punishment book, and the man's name never appeared upon it.The consequence of all this was, that whoever the gaoler recommended—unless somebody happened to be present who thought proper to interfere, like this officious and meddling individual, Ryan, which, of course, very rarely happened—was sure to be discharged. Now, an attempt was made to show, that many of the persons liberated were afterwards recommitted for other and subsequent offences. I will not go into this question. My objection to the whole proceeding lies much deeper. I care not, if every one of the discharged prisoners has, ever since, led an irreproachable life. Nay, I care not if every one of them was altogether deserving of mercy. In this instance, there were fifty-seven persons discharged from the gaol at Clonmel; and, of these, only two appear to have been recommitted. But there is another gaol,—the gaol of Westmeath,—from which nineteen prisoners were discharged; and, out of these, six have beeen recommitted, two of whom have been transported for life. Now, the difference between the proportions of six in nineteen, and two in fifty-seven, only shows how necessary it is to act upon the sound and recognized principle for which I have contended. In Clonmel, nearly all may have been, in some degree, deserving of the clemency extended to them; but, in Westmeath, the proportion of prisoners who were recommitted, shows, that it is extremely unsafe to act upon the recommendations of a gaoler. In the Clonmel case, however, not only was no judge consulted, but the time taken up in the examination of the prisoners was something of the shortest,—to say the least of it. All was done in an hour or two, during the Lord-lieutenant's stay in Clonmel. The time spent by his Excellency in the gaol, has been stated by the witnesses as not more than one hour and a half; of that short space, half an hour was occupied in moving from place to place, and the rest was employed in con- 1315 sidering the cases of the prisoners. Less, therefore, than one hour was given to examining fifty-seven cases,—somewhere about one minute for an inquiry into all the circumstances of each case, including the conduct of the individuals. Many of these, too, were very heavy cases. In one instance, the party had been convicted of receiving stolen goods to a considerable amount; in another, manslaughter had been committed: but they were all discharged, because the gaoler said they had been well-behaved in prison. One was sentenced to nineteen months' imprisonment, with nine months' hard labour; the other to a year's imprisonment, and six months' hard labour. But his Excellency acted on the gaoler's statement, that they were well-behaved men. Now, I do not profess to understand this principle. The good behaviour might be a reason for not treating them harshly while in prison, but it is no ground for letting them out of it. The rule for liberating prisoners, confined for crimes under sentence of a court, is this,—and this is the only legitimate ground of granting pardon; either it is found, after the trial, that the conviction was erroneous, from facts not coming to the knowledge of the court and jury which have since been discovered; or it appears that the sentence was too severe, from mitigating circumstances having come out after trial, which, if known at the time, would have lessened the sentence. [The Marquess of Normanby.—Persons may also be liberated on the ground of ill health.] Oh, yes! if they are too ill to undergo the punishment, that is a clear ground. In fact, the sentence always contains an implied condition, that the prisoner shall be able to undergo it. These are the just grounds of pardon; and not that the convict has behaved well under his sentence,—much less that a Viceroy has, by mere accident, visited the town where the culprit chances to be undergoing the punishment awarded by the law. I know, that an opinion prevails in some quarters,—an impression, rather, for it merits not to be called an opinion,—that there is all the difference in the world between the course which ought to be pursued in pardoning, and that which is right in convicting,—that we should be slow to convict, and swift to pardon,—that we do no harm at all in rashly and inconsistently rescinding a sentence, though we cannot be too averse 1316 to pronounce it; in short, that the pardon being to undo the sentence, the granting it should be regulated by principles the very reverse of those which guided the infliction of the punishment. Nothing can possibly be more thoughtless, more absurd, than this notion. There not only should be the very same deliberation in the act of pardon as in the act of punishing, but the self-same principles which demand it in the one case, equally demand it in the other; nay, if deliberation be not used in rescinding the sentence, a clear confession is made, that the sentence itself was wholly unjustifiable. For, observe, the infliction of punishment has, and can only have, one justification,—the inevitable necessity of the case. We have no kind of right to punish, except that we are compelled to do so by overruling necessity; we do not punish, because we are pleased to do so,—because we choose to do so,—but because we must do so, and cannot help it. If so, what right can we have to remit the sentence—the necessary sentence—the unavoidably necessary sentence? Our remitting it without an equal necessity, at once confesses that there was no necessity for ever passing it—that it might have been avoided; consequently, that to pass it was wholly unjustifiable. This plain consideration shows, to absolute demonstration, that he who rescinds a penal sentence without necessity, admits that it had been pronounced without necessity; and, therefore, that the very same deliberation is necessary before pardoning, which was required before condemning, and is necessary for the same reason. If the judge was right in condemning, he could not avoid it; he was compelled to condemn. If the Crown pardon without sufficient cause, the judge stands condemned, who condemned the offender. A rash and inconsiderate pardon assumes, that the judge rashly and inconsiderately sentenced. This proposition is wholly irresistable; the least reflection proves it at once. But I need hardly resort to principles such as he nearest the surface of this great argument, for illustrations of the gross absurdity which has been committed. Can there be anything better calculated for holding out a premium to offenders, "ad prolapsionis contagium universos provocare," as old Bracton has it, than for criminals to know, that if a Member of Parliament, or an agitator, or a body of 1317 men connected with the Government by ties of any description, make an application to the Government on their behalf, they shall, without any consideration of the case at all, receive its favourable consideration? The law loses its authority,—the right arm of justice is paralysed,—and the administration of criminal jurisprudence ceases to be respectable, or even tolerable, if mercy is to flow without deliberate judgment on the part of those who stand by its sacred fountains, and direct the flow of its blessed stream. In all this, I do not mean to say, that anything more than an error in judgment has been committed. I make no harsher charge; it is the "incircumspection," denounced by the lawyer of the Plantagenets, with which I charge the executive Government of Ireland. They who should have deliberated, paused not at all; they who should have judged, deliberated not at all; they who should, themselves, have acted, judged not at all; they delegated to others the prerogative intrusted to themselves; and the appeal was made from a judge and from a jury, not even to an Attorney-general, or a Crown solicitor, but to a gaoler—one of the lowest, though one of the most useful officers of the law. Nor will it be wise to rest the discharge of a prisoner, not on the circumstances of the trial, but on his treatment of the gaoler and his servants, while an inmate of the gaol. It should not be kept out of sight, that the persons who have been most often committed to prison, are oftentimes the best behaved within its walls. The wild bird will flap her wings against the bars, when the tame one, born and bred in slavery, will never touch a wire of her cage with a feather of her pinions. But if the prerogative of mercy is to be not only delegated to an Attorney-general sitting in appeal from the Lord Chief Justice, and to a turnkey sitting in appeal from the Lord Chief Justice,—if it is to depend on the mere precarious accident of a Viceroy going to one town rather than another in the course of his tour,—then, I ask, if justice, of which mercy is a part and an attribute, can be dispensed upon fixed principles, and if the established rules do not more depend on the personal caprice of one man, or the accidental direction given to the course of another? These things, however, have not only been passed over without observation, but there are remarkable passages to show, 1318 that they have been sanctioned, approved of, commended, thanked, and adopted by the Government at home. I say nothing of the more recent adoption of them, immediately before this inquiry began,—I say nothing of that judicious, deliberate, calm, legislative act of a grave authority,—the national senate,—the Commons of England and Parliament assembled,—whereby having heard that an inquiry was just instituted, but was not begun,—whereby, having asked for information, and having received information in promise, but before one tittle of it had been produced, much less considered, the Commons, on this express ground, that they had not proceeded to inquire, and that no man living could tell what the results of the inquiry might be,—that grave and venerable body, the representatives of the people of England and Ireland did pronounce, though by a narrow majority, made up of the representatives of Ireland—for, glorying in their shame, they have published their names in their votes—they, the Commons, because the inquiry was pending, in utter ignorance of the facts, for they could not tell, without the gift of prophecy, which they did not affect to possess, what might be the result—pronounced a verdict of acquittal and approval beforehand, deeming it more rational and decorous that judgment should precede trial, that inquiry should follow, not go before, the formation of opinion. Of this marvellous passage in our recent parliamentary history I say nothing. It is unprecedented in the annals of the Plantagenets and the Tudors. But I may in passing express my satisfaction, that the like course has not, as yet, been pursued on other matters, to which it would be just as applicable. Happily the Commons have not as vet drawn over to themselves the decision of any causes in which your Lordships are engaged as supreme judges of appeal from all the courts of the realm. As yet the Commons have not taken possession of any case interesting to their constituents, and passed a vote thereupon, while you were about to hear it argued before you in order to form a deliberate opinion upon its merits. How long it may be before this course shall be taken, and the principle of the astounding vote in April acted upon in cases wholly judicial, as well as in one almost wholly judicial, I cannot pretend to foresee; but this I know full well, that not 1319 one tittle of a reason can be conceived, why they should not pass a vote by anticipation in any one cause now pending before your Lordships, if they were right, if they acted rationally, in anticipating the decision of the Irish question, before a single witness had been sworn by you, or a single one of the documents called for by themselves had been produced. Not one distinguishing circumstance can be pointed out in the Auchterarder case, which has flung all Scotland into the most violent excitement, or in Lady Hewley's case, which still agitates the North of England—not one distinction can be drawn between these questions, and the one which the Commons were pleased to decide upon before either you or they had considered it, except only, that England and Scotland feel a deep interest in the one, and Ireland in the other. The act of passing a vote (though, I admit, by a very narrow majority) in the one House, on a case about to be examined by the other—a case which both Houses had resolved to investigate, but which neither bad taken one single step to consider, is precisely the same in point of justice, reason, common sense, and common decorum, in the instance which has happened, and in the case only a very little more monstrous—hardly at all more outrageous—which I have put, as no longer beyond the bounds of probability. But it is not that act of the Commons to which I now allude. That branch of the Legislature, at the instigation of the Ministers, without any deliberation, nay, before entering upon the deliberation to which they were pledged by their last preceding vote, pronounced a sentence of sweeping and unqualified approbation of all the acts of the Irish Administration for the last four years. This of itself would, indeed, impose upon your Lordships the necessity of guarding the pure and decent administration of criminal justice against future invasion and corruption by a resolution such as I now propose. But I am now referring to an approval by the sanction of another branch of the Legislature—the Crown. Parliament was dissolved on the 17th of July, 1837. On the 18th of July there was issued a letter, signed by the Secretary of State, addressed to the Lord-lieutenant. The substance of that letter might, from all that appears, have been very well communicated to him by word of mouth; the Lord-lieutenant was 1320 in this House on the 11th of July, on the 21st he was at the drawing-room, and he went back to Dublin on the 24th, and he could hardly have returned here, and gone back to Dublin, in the interval. It is clear then, that his Excellency was here when the letter was written, and might have received the contents in an interview or an audience. Notwithstanding, the letter was written on the 18th of July, for, as it is said, litera seripta manet; so lirera scripta is capable of being fixed to walls; and so was it affixed, both in the North of Ireland and the South of Ireland, while the elections were in progress. In the letter, certainly used, most probably intended for election purposes, it was stated, that her Majesty had been pleased to express her entire approval of the Government of the Lord-lieutenant, her desire that his conduct should continue to be guided by the same principles, and her promise to support him in such a course of proceeding. This was a most complete, sweeping, and general approval of all that the Lord-lieutenant had done; and, among other passages of his conduct, it was an approval of all that which is described by the expression of going behind the backs of the judges to deliver the gaols filled by their solemn sentences. It was an approval, also, of his calling on the Attorney-General and the Crown attorneys to sit in judgment on the decisions of the judges;—it was an approval of the delegation of the pardoning power to the gaolers by the Viceroy;—it was an entire sanction and approval of that which was a common part of the Irish Government's conduct,—namely, the delivery of gaols in the manner I have described, through the accident of a Viceroy taking one road rather than another, in his vacation tour of business, of relaxation, or of pleasure. The Ministers, therefore, are now the parties whose conduct is in question; and their adoption of the Lord-lieutenant's proceedings not only makes them accomplices in it, but makes your Lordships accessories after the fact, unless you at once record your dissent. There is another reason why your Lordships should express an opinion on this subject,—and it is equally a reason why the expression of that opinion should not be delayed till next Session. Chief Justice Doherty is, while we yet speak, carrying the Queen's commission over Ireland; he is going the circuit, trying indictments, and sentencing 1321 criminals. But the black mark remains against his name; he lies under a stigma; he must be washed clean, even if that offence committed against him should not be repeated. He must be vindicated—justice, in his person, insulted, must be vindicated—from past outrage; and all future insult must be prevented. The present Lord-lieutenant must have an intimation given him, that his course be guided by different principles. Your Lordships will recollect that the noble Lord, now Viceroy, declared, in his place, his determination to tread in the steps of his predecessor in office. Therefore, if he be resolved to tread in those steps which carried the late Lord-lieutenant to the Attorney-General in Gahan's case, rather than to the Chief Justice,—in other cases to the Crown solicitor, rather than to the venerable judge that tried the prisoners,—and, in Clonmel, to the gaoler, and even to the turnkey,—it is high time Lord Ebrington should be told that this is not the mode in which the functions of mercy should be dispensed under the law and the constitution of England. These are the grounds on which I have felt it indispensably my duty to bring the case before your Lordships,—presenting it in a shape which would enable you to find the needful remedy for the mischief that has been done. It is absolutely necessary that I should persevere, deeming, as I do, that the highest of all the functions existing in any of the powers in the State,—that the most important of all the offices of the Government, the highest prerogative of the Crown, and the most sacred right of the subject,—is the due administration of justice; and that abuses in any manner of way connected with the administration of justice, are of importance paramount to all other questions; deeming, as I do, that if no steps be taken—and promptly taken—by your Lordships, to express an opinion of the true mode in which the executive Government ought to discharge those exalted duties, you will again and again see mercy exercised, not according to established principles and fixed rules, nor restrained within intelligible limits by a true sense of judicial and responsible discretion, but the mere sport of feelings more or less amiable, weaknesses more or less venial, caprice more or less guilty. Unless, I repeat, some judgment shall be pronounced in this matter by your Lordships, you will again 1322 witness scenes like those which Ireland has lately displayed, of the highest prerogative of sovereignty prostituted as an itinerant show—the pardoning power of the Crown used to grace the mere pageant of a Viceroy's progress;—and you will again see, in that pageant, justice and mercy change places and characters;—mercy blind, and justice in tears! If any among your Lordships shall think that it signifies nothing whether witnesses come forward according to the tenour and obligation of their recognizances to give evidence, so that crimes may be punished,—if there be any one who thinks that, in Ireland—(differing in this respect from England), criminals should be left to go free by the default of witnesses who hold back, and for that default only suffer ten days' imprisonment, rather than that murderers should by their testimony be convicted and punished,—that individual will be prepared to vote against the first of these resolutions. If, again, any of your Lordships hold that the most important element in the composition of juries—the right exercised, heretofore, in Ireland, of bidding jurors stand aside for just cause—ought not, in future, to be in existence, or be temperately, discreetly, but fearlessly, exercised for the public service,—if any of your Lordships hold that the connections of offenders, in point of crime, though not of blood, may act as jurors,—that persons who take part in the agitation and conspiracy against the laws, which give rise to the offences, may sit and decide on their brother and perhaps minor offenders,—if, above all, any of your Lordships think that the instructions of the Government to its law agents respecting challenge of jurors need not be clear, intelligible, and uniform, but may safely be confused and various, left to the construction of every individual whose conduct they are meant to guide, liable in different parts of Ireland to different interpretations, and never the same to any two prosecuting agents,—then, whoever of your Lordships think so, will be prepared to vote against my second and third resolutions. If, again, any one of your Lordships be disposed to vote against the fourth resolution, he must be prepared also to say, that the judge should not be consulted in reference to the exercise of the prerogative of mercy, that those who have seen neither witnesses nor jurors nor prisoners at the trial, are the fittest 1323 persons to say whether the judge's sentence should or should not be carried into effect; and he must, moreover, be prepared to affirm the monstrous proposition,—this outrage upon all justice, and all consistency, and all decency,—that it is fitting to stigmatise and degrade the office of the judge on account of a political or a personal difference between an individual high in office and the Chief Justice,—that it is proper to leave men clothed in the ermine which they never defiled, while you mark them out for contempt by the acts of Government, and to let criminal justice be administered all over Ireland by men whom you stamp, by your treatment of them, as unfit to judge. Finally, those noble Lords who are ready to vote against the last resolution, must also be ready to say, that mercy is no part of justice, and that it signifies nothing how lavishly, how intemperately, how casually, how accidently, how capriciously it be dispensed; that gaolers who execute the sentences of the courts should sit in judgment upon those sentences; that they know better than the judges how far each culprit is worthy of mercy; and that the exercise of the pardoning power is not a matter of grave and deep deliberation as a solemn act of state, but a thing to be played with at random—a freak to be indulged in caprice—an operation depending on the humour of the hour, the temperament of the individual, the clamour of a mob, or the chance of a journey. I have no fear that any one of these irrational conclusions will be adopted by those whom I now address. If there be any one thing which more than another deserves the anxious attention of this House, above all other tribunals, it is the thing, whatever it may be, that touches the function peculiarly appertaining to this assembly, this supreme judicature—this highest court of justice in the kingdom. Whoever has practised in our courts,—whoever has presided over them, whoever has observed the mode in which the judicial business is carried on, whoever has meditated on the constitution of these realms, as regards its executive, legislative, and judicial branches—must be prepared to say, with me, that of all the branches of our polity, the pure, correct, and inflexible administration of justice is by far the most important. It is this great power, this prodigious clamp, which binds all the parts of our vast social structure together. It is this great solid 1324 belt, which guards and strengthens our whole system,—our great pyramid,—formed, as it is, of various and of discrepant materials, in form and size differing from the lowest and broadest to the most exalted and the most narrow. As long as that mighty zone which connects the upper and lower parts, while it strengthens the whole edifice, remains unimpaired, you may well disregard all the perils with which the constitution can be threatened, in what quarter soever its assailants may be found, or against what part they may point their attacks. Let the Crown have all the lust of power that can inflame a tyrant—give it a venal House of Lords—give it an obsequious House of Commons—give it a corrupt court, and a people dead to the love of freedom—from the King's court at Windsor I will appeal to the King's courts at Westminster; thither I will flee for safety to the remains of liberty—and, in the sacred temple of justice, I shall find the impenetrable palladium of the constitution. Or let the danger come from another quarter. Let there be a vacillating House of Commons—a Parliament in which the people's representatives know not their own minds, dare not declare any firm or fixed opinion, but mutter resolutions which they cannot articulate—voting, now this way, by a narrow majority, and now that, by no larger a balance, let the force of the constitution, thus neutralised in the one House, be concentrated in the other, so that the Lords shall seem to rule the whole, the mixed monarchy to be gone, the balance long vaunted to be at length destroyed, and an aristocracy to be all but planted in its stead,—still against the corruptions of oligarchy and the insolence of patrician domination, I seek for shelter to liberty and protection to right, in the impregnable bulwark of judicial power. Or, again—if the danger should threaten from another quarter,—the quarter whence, certainly, it is the least to be dreaded—if the pressure should come from the swelling, and loosening, and cracking of the foundations—if the "fierce democratie" should wield unsafely its powers—if the outrages of popular violence should assail the fabric,—to its wild waves I will oppose the judicial system as a rock against which the surge may dash—and dash in vain. Of that judicial system, the assembly which I now address is emphatically the guardian; with that administration of justice, 1325 this House is eminently, and in the last resort, entrusted by the constitution; and to you, therefore, my Lords, it is, that I now earnestly make my solemn appeal. In all the difficulties of our country, in all her perils, she looks to you with the best hopes for preserving the judicial constitution by which she may surely be saved. As often as any attempts can be perceived to break down this barrier, the growth of ages—attempts slowly and gradually made, and it may be, made without evil design—for, in the present instance, I impute no bad intention, nor anything more than indiscretion, or excess of feelings in themselves harmless, nor do I even suspect any unkindly or unamiable disposition—still the inroad must be resisted in the outset, and a solemn authoritative declaration from your Lordships must loudly promulgate the sacred principles which have been violated, and sternly warn against a repetition of the fault. Wherefore it is, that I have deemed it my duty to press upon you the adoption of the resolutions which I now submit to your calm and deliberate consideration; and, on behalf of the British constitution,—bound up, as it is, in the pure administration of justice,—I implore your Lordships, this night, to pronounce upon them your decision of affirmance. I move—That, when persons bound over to give evidence in any prosecution shall not appear, or shall refuse to be sworn, it is necessary, for the due administration of criminal justice, that not only their recognizances should be estreated, and the penalty be levied upon them, but, in case they shall not pay the same, that they should suffer such imprisonment as may compel them afterwards to give evidence, or may operate, by way of example, to deter others from failing in like manner. "That it does not appear expedient, with a view to the due administration of criminal justice, that the exercise of the right hitherto possessed by the Crown, in prosecuting cases of felony tried before the courts of Ireland, of desiring persons called as jurors to stand aside, should be confined to the cases of such persons as are relatives of the defendant; but that persons connected with the offence charged, by having previously expressed strong opinions on the subject, or persons under the influence of the defendant, and of those who usually take part in his offence, or persons who are notoriously of such life and conversation, or of such ignorance as renders them unfit to perform the duty of jurors, may properly be desired to stand aside until it be found that the full number of twelve, not falling within 1326 the above description, do not remain on the panel to try the defendant.That it is expedient to give instructions identically the same to the Crown solicitors and counsel conducting prosecutions in the different parts of Ireland, with respect to the general principles by which the exercise of their discretion, in setting aside jurors, shall be guided; and to frame those instructions in a precise and distinct manner, leaving no room for misapprehension of their meaning.That it is the duty of the executive Government, when considering any case of conviction had before any of the King's judges, with a view to remitting or commuting the sentence, to apply for information to the judge or judges who tried the case, and to afford such judge or judges an opportunity of giving their opinion on such case, unless circumstances should exist which render any such application impossible, or only possible with an inconvenient delay; but that it is not necessary that the executive Government should be bound to follow the advice, if any, tendered by such judge or judges.That the prerogative of pardoning all offenders in the conviction for which private parties are not interested, and other than offences against the habeas Corpus Act (31 Charles II. c. 2), is a high, indisputable, inalienable prerogative of the Crown; but that it is vested in the Crown for the purpose of aiding in the administration of justice, and is to be exercised so as best to attain that important object; that it ought never to be exercised without full and deliberate inquiry into all the circumstances of each case and each individual; and that its exercise ought to depend on those circumstances; and never, on the accident of the Sovereign, or his representative, happening to visit the place where an offender under sentence may be confined.
The Marquess of Normanby,
conscious as he was of having been unjustly attacked, and desirous as he was to put himself before their Lordships in that light to which the conscientiousness of his motives and the result of his actions entitled him, felt that he had some claim to their Lordships' consideration. The noble and learned Lord in commencing his speech stated the motives by which he was actuated, and the manner in which he intended to treat the subject; and he certainly could not help alluding, before entering into the general question, to the manner in which the noble and learned Lord had pressed forward his motion. When this committee reported the evidence to the House, the noble and learned Lord immediately gave notice of his intention to bring certain parts of the subject before their Lordships, but the noble and learned Lord afterwards consented to a short postponement. On that occasion the 1327 noble and learned Lord distinctly said, that there would be nothing criminating in his subsequent motion. On that day week the noble and learned Lord again stated, that the resolutions he was about to move were such as an opinion might be pronounced upon without having read a word of the evidence. How far, after having heard the able and eloquent speech of the noble and learned Lord, their Lordships would think, that they could come to a vote to-night, without having read not only those parts of the evidence to which the noble and learned Lord had himself called their attention, but also those other branches of the subject which it was necessary for every noble Lord to consider before he pronounced an opinion upon the conduct of others, in affairs spreading over a vast space of time—how far they thought that justice could be done to any one part of the evidence, much less to the whole subject, without having read one word of that evidence, he left it to them to decide. But more than that, when the noble Duke opposite attempted to dissuade the noble and learned Lord, and when the noble Chairman of the committee, and many other noble Lords, pointed out how impossible it was to come to any decision within the interval allowed by the noble and learned Lord, on that appeal being made by the noble Duke, the noble and learned Lord said they should have the resolutions before them on Thursday last, but the Thursday came without any resolutions. It was true they obtained the resolutions on Friday. But his objection was, that five resolutions should be given to the House on Friday only, on which a notice of motion was given for the following Tuesday. How was it possible to write to Dublin for the necessary papers? He felt the immense disadvantage of going into such a subject after it had been treated by the noble and learned Lord with such unrivalled powers of fixing their attention, but at the same time he felt it due to himself and to their Lordships, before entering on the general question, to make this short reference to the circumstances under which the motion had been brought forward. With regard to these resolutions, other noble Lords would address the House who would be much better able than he to express the opinion which they entertained with him in reference to them, and of the objectionable nature of the propositions involved in them. He felt, with reference to one of them, that if the House were to meddle at all with the subject, they 1328 should not do so by means of a resolution, but of a bill. Far be it from him to compete with the noble and learned Lord as to the best mode of legislating, but he could not help saying, that this was the very first time he had been made acquainted with an authentic version of the terms of the resolutions; for having come into the House the other night when they were in the course of being read, the noble Lord had promised to give him a correct copy of them, hut had failed to do so. With reference to the resolutions relating to the estreating of the recognizances of witnesses, he thought that the noble and learned Lord had hardly sufficiently adverted to the amendment of the law with respect to this subject. In allusion to the other resolutions, the House would feel, that it would only be natural for him to endeavour to hurry over such of them as did not immediately affect him, knowing, as he had before said, that others more competent to speak upon the points of technicality alluded to in them, would follow him. He could not, however, avoid noticing with great regret, and, he must say, with great indignation, the terms in which the noble and learned Lord had spoken of one of the greatest ornaments of the Irish bench, Sir Michael O'Loghlen. For his own part, under no circumstances should he feel himself warranted in saying anything against any learned person in a judicial situation, and certainly not in reference to the other learned person referred to, considering that the difference between them was one which arose out of an official occurrence; and still less should he be disposed to draw a comparison between the two learned individuals alluded to, because he felt, that the comparison would not be such as to justify the noble and learned Lord to speak in the manner in which he had done of a judge who, in every situation which he had held—of Crown prosecutor, at the bar, and then as a baron of the Exchequer, had procured the united good feelings of respect of all political parties. Now, having said so much of Sir M. O'Loghlen as he felt necessary in allusion to a person for whom he had the highest esteem, regard, and respect, he would proceed to the consideration of the allegations of the noble and learned Lord. Cahill, it was said, was the only person who had given testimony as to the successful working of the system of challenging jurors, which had originated under Sir M. O'Loghlen, or rather which had, more properly speaking, originated under Mr. Justice 1329 Perrin, who had given instructions similar to those given by the former learned person. Mr. Tickell, however, who was well known to every one who knew the Irish bar, who was a person of considerable eminence and a leader of the home circuit, expressed a similar opinion. There were other persons, however, who also gave evidence to the same effect, as to the general working of the system. He must say, then, that if this was the case of the balance of testimony, it was evident that, under the new system, there was little reason to complain of the judges doing their duties, and it was a matter of great advantage that where convictions did take place, they would do so under a general impression among the people that they were just, and the feeling that juries were packed against them would no longer be entertained. With regard to the resolution as to the instructions which should be given on all the circuits, he had no hesitation in saying that he agreed in principle with the proposition of the noble and learned Lord, but the same principle could not always apply, because the instructions which might be given with reference to particular parties or particular persons, which might be very proper in one case, would not be equally applicable in other instances. He thought, therefore, that as to both these resolutions, the House would not feel that these were matters in which they should interfere with such peremptory directions as they were called upon to give. As to the fourth resolution, that the plan of proceeding there pointed out, was one which should generally be pursued, he did not in the slightest degree dispute. It had been his practice to follow that plan, he would not only say in the majority of cases, but in all the cases in which he could. He felt, however, that the positive adoption by this House of such a resolution as was proposed, involving, as it did, the necessity of applying to the judges, was opposed to the constitutional principle, and that no two things ought to be so distinct as the authority to sentence, and that by which pardon could be granted. The noble and learned Lord, however, had said, that the judges were passed over, and were treated with disrespect; but this he must distinctly deny, as well as that there had been any feeling of the kind suggested with regard to the learned personage to whom reference had been made. With regard to the other judges, he was sure that the House would see that no improper feeling existed towards them on his part, 1330 from the testimony which had been given by one of the judges examined before them—Chief Justice Bushe, as to his treatment of them. He mentioned the name of that learned individual as the only one of the judges examined, except Mr. Justice Perrin. As to Mr. Justice Moore, he was at the time at which he quitted the bench, the oldest judge, and had been longer on the bench than any judge in any part of the United Kingdom; had maintained the highest character for probity, integrity, and learning, and there had never been the slightest difference with him as to the nature of those relations which should exist between the executive and the judges. When the noble and learned Lord, therefore, talked of the judges in the plural number, he went rather beyond the fact, for he might have acted under advice which was incorrect, the whole question of differences with the judges confined itself to one between him at the head of the Government and Chief Justice Doherty. As to the case of Maher, he of course could not be expected to go through, and to comment upon the different parts of the evidence. He had had the report of Chief Justice Doherty, and of Sir M. O'Loghlen, and having them, he was compelled to come to a decision upon the subject in one way or the other, and he conceived that the determination at which he arrived was the right one—which was, that Sir M. O'Loghlen's construction of the bearing of the evidence in the first case, and of the conviction of the second case, was such as to justify him in remitting the sentence which had been passed. To turn for a moment to the correspondence which had taken place. The whole of this question between the executive government and Chief Justice Doherty was this, whether the Chief Justice was or was not justified under the circumstances of the case in retaining the copy of the memorial sent to him, and of the Lord-lieutenant's minute upon the subject; and their Lordships must recollect that the Chief Justice not only did this, but also expressed himself in terms which in his situation were not justified. He felt at the time that the Chief Justice did wrong in holding out the threat that he would take some further steps in the matter, more especially when every opportunity had been taken to prove to him that the memorial was never intended to be sent to him. Then, with regard to the other point, which was made in not sending the memorial to the priest, it was sent to the Chief Justice, 1331 as he had already stated, and it was that which caused the delay. The noble and learned Lord had alluded to the case of Reynolds, but that was a case which occurred a year ago, and had nothing to do with Chief Justice Doherty. In point of fact, it was referred to him, and it was on his report that his right hon. Friend, the present Master of the Rolls, entertained considerable doubts as to the charge delivered to the jury, as well as in reference to the law of the case. His noble Friend behind him (Lord Plunket) was kind enough to give him his advice upon the subject, and he completely coincided in the opinion expressed by the others; and it was on that decision, and not on the mere reference to Sir Michael O'Loghlen, that the communication was made to Chief Justice Doherty on the subject. He had to apologise, that from the great mass of matter which he had had to look over since Friday last, he had not made himself sufficiently master of Sly's case, to give an explanation of it. His noble Friends who had attended the committee, were probably better acquainted with it than he; but he should be happy to give an explanation on the subject of the conduct of the Government, in reference to it, if he were master of its particulars. With regard to this subject, he would allude to a communication which he had received from a person to whom allusion had been made, and of whom he could not speak but in terms of the most sincere respect—he meant the late Baron Sir W. Smith. A memorial was sent to him for his consideration, in which the word cruelty had been used; but upon a correspondence taking place between them, it was agreed that the word was not intended to convey an offensive meaning, but was only meant to allege that the effect of the punishment inflicted was hard upon the prisoner, and Sir W. Smith fully admitted the justice of this observation. Chief Justice Doherty, however, said in his evidence, that it had never been the custom to commute the sentence passed upon a prisoner without a reference to the judge, but there happened to have been several cases in his own time, when he was Solicitor-General, in which the sentence was commuted without such a reference taking place. Mr. Justice Moore mentioned a case of Patrick Kelly, who had been found guilty of manslaughter, and sentenced to be transported for seven years, but whose sentence was subsequently commuted, without any communication being made to him, the presiding judge at 1332 the trial; as well as the case of one Bartholomew Scales, who being tried twice, was found guilty before Baron Pennefather and Mr. Justice Terrens, but subsequently, the information of the approvers being found not to have corresponded with their evidence, the judges recommended that the sentence be remitted, and Chief Justice Doherty and Mr. Baron Joy, who were then the law officers of the Crown, advised against the commutation, and no commutation took place, except in the life of the man being saved, and in his being transported for life. He was sure that the testimony of Mr. Baron Penne father, had he been examined, would have been in favour of that view which he supported, for he knew, from what Baron Penne father had said, that he should have had the advantage of his testimony as to all the circumstances which passed between them on this subject, and he could not but remark, that although that learned individual had been summoned to attend the committee, be had not been examined. He could not enter upon the consideration of the fifth resolution without calling to their Lordships' recollection what the circumstances of this case were with regard to time. All the cases which had been brought before the House now, had been under the consideration of Parliament in the year 1837. At a meeting held at the Mansion-house in Dublin, at which a noble Earl who had been alluded to and a noble Earl opposite were present, and at which the latter distinguished himself by tearing to pieces the protest of certain Peers who thought differently from him. [Lord Brougham: That was no crime.] He was not going to indict the noble Earl for it, and only referred to the circumstance as an evidence of the strong feelings and of the taste of members of that assembly. But he was going to say, that many other charges were brought against the Government; and in the other House of Parliament, the noble Lord, the Secretary of State for the Home Department, took the first opportunity which was afforded him of declaring the willingness of the Government to meet all the charges, and their opinion that the sooner a parliamentary inquiry was instituted the better. The noble Lord applied to the other House of Parliament upon that occasion, and if any one was disposed to bring forward a charge, it was above all necessary that the House should have been immediately called upon to pronounce an opinion upon it, more especially as he was charged with having substituted oral for 1333 written communications, and with having received them upon the spot orally, and not in the castle, upon which he ought to have had the advantage of his recollection upon the subject, so as to be able to show the great care and attention which he had paid to the exercise of the prerogative of mercy. He thought, that when this was called laxity, the committee had not taken the trouble to make due inquiry, and that they had not the proper evidence before them. They had the evidence of four or five gaolers who were disaffected; but in no one instance was the local inspector culled. On every occasion on which he had been called upon to explain this subject, he had stated that he had acted principally on the advice of the local inspector; but the only local inspector who was called, happened to be a person who was not present at the time when he visited the gaol, which was most important—he meant the local inspector of Clonmel. With reference to the case of Giles, he must draw the attention of the House to the practice of examining persons upon the subject of private conversations. This was not the only instance of such a course of proceeding having been adopted; but he had hoped that the example held out in the case of Colonel Shaw Kennedy, the confidential officer of the Government, would have sufficiently shown how these inquiries were conducted. To return to Mr. Giles, he thought the lengthened examination which that gentleman underwent had confused him very much, for Mr. Giles's recollection of the conversation that took place between them was very different from his own. In fact, what Mr. Giles said, was perfectly absurd. As to the minute of his which had been referred to, he could say, that it was not till soon after Mr. Giles's hopes of a living were disappointed, that that document got into the hands of a learned Member of the other House of Parliament, who read it in that House. He completely and distinctly denied what had been stated by Mr. Giles. He might be wrong, or he might be right, but he had acted on a principle which he thought would have a most beneficial effect; he had not limited the exercise of the prerogative of mercy to any particular towns, but had acted upon an examination of the facts of the different cases to which mercy was extended. With regard to the case brought forward by the noble Marquess opposite (the Marquess of Westmeath) in July, 1837, at that period he was much better able 1334 to go into the details of that case. The noble Marquess, on that occasion, refused, reading at the same time a letter from Mr. Brown, the local inspector, controverting the statement made by the noble Marquess. The noble and learned Lord, who now brought forward these resolutions, on that occasion, alluded to his judicious lenity and desire to appeal to the hearts and better feelings of the people of Ireland, and by such means to make his Government popular. Such being the opinion expressed by the noble and learned Lord in 1837, he should have thought the noble and learned Lord would have been the last person in the world, two years afterwards, to bring forward the motion against him, which the noble and learned Lord had now brought forward with reference to his conduct on that occasion. He must also say, that he was rather surprised that the noble Marquess to whom doubtless was entrusted the selection of the witnesses on this particular part of the subject, had not called Mr. Brown, the local inspector of police, who had given him the information on which he controverted the statements of the noble Marquess. He felt that the principle on which he had acted in Ireland was not applicable in England, where it would be at variance with the customs and habits of the people; but in Ireland the nature of certain offences was such, that clemency, with regard to them, operated most beneficially. The great majority of the offences committed in Ireland arose out of personal conflicts, chance medley and faction fights, waylaying, and assaults not of an aggravated description; the punishment for all of which was much more severe in Ireland than in this country. When he saw a disposition on the part of the people who were pardoned to attend to the admonitions of Government, and when he saw a diminution of offences the result, and of offences of this sort, he thought it judicious to apply a more general system of clemency than could be applied in England. If he saw a thief in gaol, and knew him to be well-conducted while there, he would not, therefore, say that he would not return to his evil habits when he was let loose; but it was, he thought, very different with persons who were imprisoned for being engaged in chance medley or faction fights, and if the disposition of such a man were good in gaol, he thought he might be fairly trusted with liberty. He did think, that this was a very fair experiment to try how 1335 far, by such means, he could promote the tranquillity of the country, and encourage kindly feelings amongst different persons in that rank of life. He thought it a most desirable mode of making a strong impression upon the people, and it was with that view, and not from any love of idle pageantry, which any person holding the office of Lord-lieutenant, whatever opinions he possessed, might gratify to the full extent of his wishes; it was not from any such mean, contemptible motive, that he had acted in exercising the prerogative of mercy in the course of his progress in Ireland. His only motive was, that he thought it would make a more durable impression on the minds of the persons towards whom that mercy was extended, if he were himself present on the occasion; and he thought also that the admonitions thus conveyed to them would have a stronger effect. What was the result? The two years that had elapsed proved the success of the experiment. The diminution of offences, and those in particular in which he had exercised the prerogative of mercy, was a proof of the result of what he never professed to be anything but an experiment; and he thought he might plead an arrest of judgment, when, after so long an interval that had elapsed, it was now proposed to pass sentence. If he had exercised the prerogative of mercy in so indiscreet a manner, why did not noble Lords manfully step forward at an earlier period in order to prevent a repetition of the practice? With respect to the effect which the exercise of mercy had had in the county of Tipperary, he would refer to the evidence of Mr. Cahill, the Crown prosecutor, who stated that prior to 1836, that country was disturbed from one end to the other; there were daily fights and riots, houses were repeatedly fired and a number of lives were sacrificed, but that in consequence of the superior administration of justice then introduced, and the disposition there by created among the people in favour of Government, the number of offences had greatly diminished, and the county was in a state of comparative tranquillity. Mr. Howley, the assistant barrister for the county of Tipperary, gave similar testimony. There were many other gentlemen whose testimony was not at all referred to by the committee, but from whose letters he would read a few extracts. The first person whose testimony he would advance was the rev. John Story, vicar of Cavan and chaplain of the gaol, who said— 1336It was by no means without a very strict inquiry into each person's separate case that his Excellency's clemency was extended towards them. At the time that it was notified that the Lord-lieutenant purposed visiting Cavan, and when it was generally known that he had, on visiting other gaols, exercised his prerogative of mercy in mitigating or remitting the sentence upon some of the prisoners, I felt it right, as chaplain of the gaol of Cavan, and in constant attendance thereon, to furnish myself with a list of the names of such persons as, either by palliating circumstances attending their case, or by extraordinary good conduct while in custody, seemed to deserve such favourable consideration; and at the time his Excellency visited the gaol, he inquired most carefully into each man's crime, extent of punishment, and general character. He desired my list to be given to Colonel Yorke, for his own consideration, and so far from indiscriminately attending to every recommendation, he refused to do any thing for some, and did not pardon any who were not strongly recommended to him by those persons who appeared to have the best means of judging in such matters. Of those he did discharge, all but two were on my list; one of them, for larceny, was discharged by the earnest request of the high sheriff; and the other, whose case has been referred to (Maguire), whose offence was declared to have had many palliating circumstances, a petition signed for him by several of the most influential gentlemen of the county, who was at the time of the Lord-lieutenant's visit strongly recommended to his notice by Mr. Saunderson, late Member of the county, and by the high sheriff, besides which Dr. Roe, the county surgeon, gave his opinion that his complaint was likely to endanger his life.The next evidence he would refer to was that of the rev. Dr. Quarry, who stated—That That he fully acquiesced in the statements made by the governor of the gaol, of the good conduct while in gaol of the convicts discharged, of which I was myself convinced, and also in the fact of the said prisoners being confined for first offences.The next evidence he would refer to was that of Mr. Walker of Longford, a local inspector and magistrate, who stated—Several applications were made to the Lord-lieutenant by prisoners, which, on reference to the governor, were rejected, and petitions were about to be presented on behalf of seven men under sentence, five for six months, each alternate week hard labour, and two for four months, and some proportion of hard labour. I was aware their applications would be strongly supported by persons present, and I felt it my duty as a magistrate, who had taken a share in the investigation of the 1337 outrage they had committed, and also in presiding at their trials, to state to his Excellency the nature of their offence. Upon my doing so, he returned their petitions unopened. Soon after a memorial was forwarded by the friends of the same prisoners, unknown to them, the prayer of which was rejected by his Excellency.
[A noble Lord
Why was not this evidence brought before the committee?] Noble Lords opposite should recollect, that both he and the Government had declared, that they did not consider the subject which they were then discussing a legitimate subject of inquiry before a committee, and they had withdrawn from that inquiry altogether; and now, when that House was called upon to pronounce judgment at that distance of time upon transactions in which he had been engaged, he thought, that they were bound in fairness to hear the documents which he had to produce, and which proved that he had not acted with out due discrimination, however irksome it be to hear those documents read. The next evidence he would read was that of Sir W. Packe, deputy lieutenant of Sligo who said—The anticipations of his Excellency, as relates to Sligo, I am happy to say, have in a great degree been realised, as not one individual released on the occasion has since been accused of any breach of the peace. The comparative lightness of the calendar laid before the judges at the last assizes, the diminution of crime, as will appear by reference to the assistant barristers' record book, at the last quarter sessions, I submit as a reasonable inference, that the clemency of his Excellency towards the prisoners enlarged from Sligo gaol has had the best effect, and has been productive of much public good.Mr. Price, the local inspector of the city of Kilkenny, also said—The Lord-lieutenant, when about leaving the gaol of this city, desired the governor to inform him if there were any prisoners whose term of confinement had nearly expired, and whose conduct was good during the time they were in gaol. The governor recommended three men, his Excellency ordered two whose time of remaining was very short, to be discharged, and the third having four months unexpired, his Excellency desired that he should be kept for two months longer, and that the governor should report at the end of that time if his conduct continued good, which being done, his Excellency sent an order from the castle for his discharge.Mr. Hurley, local inspector of Kerry said—His Excellency expressly desired, that I 1338 should return none save those whose conduct, whilst in gaol was strictly correct, and of whose imprisonment one half at least had expired.The Rev. Mr. Hobson, local inspector of Waterford county, stated as follows:—Michael M'Guire, John Power, and Edmund Dwyer, were convicted at the sessions of this city of common assaults, and sentenced to twelve months' imprisonment, of which eight months had expired. They were recommended to his Excellency's favourable consideration, on the grounds that their conduct while in prison had been perfectly correct; that no previous charges appeared against then; and also under an impression, that the imprisonment they had already suffered was not an inadequate punishment for their offence. It is right to add, that the mayor of Waterford, who had presided at the trials of these individuals, was present when they were selected as fit objects for mercy, and joined in recommendation to his Excellency in their behalf.The local inspector of the town of Galway stated as follows—Mark Carr was sentenced to seven years' transportation for an aggravated assault upon a female. In framing the bill of indictment, it was afterwards discovered that there was some omission, some legal technical error of which the prisoner's counsel availed himself, whereupon he was discharged by order of his Excellency the Lord-lieutenant, under the advice and directions of the recorder of Galway. Thomas Hefferman was tried and convicted of Manslaughter, and sentenced to eighteen months' imprisonment and to give bail. At the time his Excellency visited Galway, fifteen months out of the eighteen had expired. I asked permission of his Lordship to present a memorial in Hefferman's favour, which he gave me, as inspector of the gaol, which his Lordship was graciously pleased to allow. Upon reading the said petition, and after visiting the gaol and inquiring into the particulars of the case, his Excellency was pleased to remit the remainder of the sentence, and to direct the mayor and sheriffs to discharge him without an order from the castle, in consideration of the long time he had been already in gaol. Bail was dispensed with on my representing to his Excellency that, if it were required, the prisoner would actually suffer incarceration for life, as he was a total stranger here; and that if he were then discharged, he would leave this country—which he has done.The local inspector of the county of Meath stated as follows:—In doing himself the honour of acknowledging Mr. Drummond's commands, Mr. Hamilton begs permission, in the first instance, to say that he addresses himself to the execution of them not merely as in official duty bound, but 1339 prompted by the sincere desire to do justice, not only to his Excellency's clemency, but to the discrimination with which it was exercised on the occasion of his late inspection of Trim gaol. Mr. Hamilton (as will appear from the governor's letter) did not feel himself called upon to trouble his Excellency with any recommendation in addition to those from parties more cognizant of the cases of the prisoners (from the relation in which they stood to them as magistrates, jurors, landlords, neighbours, parish clergymen, or gaol chaplains".)Testimony to the same effect was given by a nobleman, to whose genuine patriotism and active benevolence, and enlightened mind, his county owed a large debt, and whose name he could not mention without feelings of the deepest regret, he meant the late Lord Clements. That nobleman more than once bore public testimony to the effect, that the exercise of the prerogative in his hands had been productive of the most beneficial results, and had done a great deal to inspire the people of Ireland with confidence in the administration of the laws. Upon all the cases in which he had exercised the prerogative of mercy, he had done so upon communication with those persons who were best calculated to give information as to the nature of the case, and he had framed his course accordingly; and it was gratifying to him to find that the result was that those particular offences in which he interfered had much decreased. He only wished their Lordships to reflect whether, at any former period of her history, Ireland was on the same footing as at present, and whether they were not formerly obliged to apply constantly for legislative coercive measures, in consequence of the unfortunate state of society in that country, whether they had ever been able to apply or maintain English rules or laws in that country, and when he had at length endeavoured to introduce a new principle, a principle of humanity, whether it was not too hard, after three years had elapsed since the events had occurred, to come forward now in order to cast a censure upon him. He had stated that he would confine himself as much as possible to the subject before him, but he could not help calling the attention of the noble Earl opposite (the Earl of Roden) to the grounds on which he moved for this committee, and to some statements made by the noble Earl on that occasion, statements which it was particularly painful to him to hear from the noble Earl, for the noble Earl had stated that the Government of which he was a Member was responsible for all the tears and 1340 blood that had been shed in Ireland, and that although crime existed on former occasions, the Earl of Roden had never known a period when crime existed to such an extent. Now he thought he bad read enough from these documents to show that not fifty pages, but six or seven hundred, as stated by the noble and learned Lord, were required to complete the evidence upon this point; and further, that out of the whole mass there was not fifty pages, nor one page which could be found to bear out the statement ventured by the noble Earl opposite. He (the Marquess of Normanby) should very much regret if the result of this committee's inquiries was to bring such a charge home to himself as had been hazarded by the noble Earl. He sincerely trusted that their Lordships, in dealing with this matter, would direct their attention to the whole course and conduct of the Government in Ireland, and to the general results of that policy; he hoped also that their Lordships would look to the increase which had been found requisite to be made in the military force in England, and to the troops which had been withdrawn from Ireland to meet the exigencies of this part of her Majesty's dominions; and with these facts and considerations before them, decide upon the whole question in a manner befitting impartial public men. The county of Clare having been particularly referred to, he begged to cite the evidence of Mr. Tompkins in reply to the complaint that criminal cases could not be successfully prosecuted there for want of evidence. This witness stated that in the course of ten years, there had not been a single homicide committed of which the person guilty had not been detected. In respect to the case of Reynolds, the protestant officer of the coast blockade; who had been murdered, he had been the aggressing party. He broke into the house of a man of the name of Lavelle, at night, attempted to take his life, and lost his own in the scuffle. Those facts were proved on the trial of Lavelle, who was fully acquitted, and the friends of Reynolds admitted that he was justly acquitted. He entered into these particulars, because in that House, as elsewhere, it had been too much the habit to quote cases, without sufficient authority as to the particulars, and because the noble Earl opposite, on a previous occasion, had concluded his speech with an emphatic allusion to the case of Reynolds, accompanied by observations which caused considerable impression upon the House. In conclusion, he had only to 1341 observe, that he thought the resolutions moved by the noble and learned Lord would not attain the ends which he himself desired as to the first three; and as to the other two, whatever might be the opinion of their Lordships upon his conduct in the matters referred to, he was glad to observe that there was no imputation made as to his motives. This was in itself a consolation to him, which was enhanced by the actual result which had attended that part of his conduct; for he did not think that the prerogative of mercy could have been exercised so injudiciously as had been alleged, when it appeared by the result that the very offences to which that exercise of mercy was chiefly applied had materially diminished, while very few of the persons he had pardoned had been again committed to prison for fresh offences. Op these grounds, therefore, he confidently looked to their Lordships' approval of the course he had pursued; but if that should be denied, still on these grounds he appealed with confidence, to the verdict of his country.
§ Viscount Melbourne
should not have risen to address their Lordships at that period of the debate, nor have pressed to be heard before the noble Lord, the Chairman of this Committee (Lord Wharncliffe), were he not aware that he should do just the reverse of what the noble Lord would probably do; for he should occupy their Lordships on this subject but very shortly. The noble Lord had doubtless many remarks and views to explain; for the noble Lord was acquainted with the whole subject; he was wholly ignorant of it. Yes, he was quite ignorant of this subject; it was impossible for him to make himself acquainted in the time with the voluminous matter which had been collected in the course of this enquiry, and therefore it was, that he was not about to detain their Lordships long, and that he should be prevented from calling their Lordships' attention to, and dwelling upon many, of those topics which had been forcibly, and even vehemently, presented to their Lordships by his noble and learned Friend. His noble and learned Friend had been repeatedly asked by various Members of their Lordships' House not to press forward a subject at this period of the Session, on which, as appeared to many of their Lordships, it would only be possible for their Lordships to form an hasty and unsatisfactory decision; but his noble and 1342 learned Friend had persisted in bringing on his motion, and, in doing so, had made the injustice of his own conduct and the disregard he feels of deliberation on this subject, sufficiently manifest to their Lordships. His noble and learned Friend had said much on the importance of this subject, and he had explained how nearly it connected itself with feelings of a political and feelings of a personal nature, and his noble and learned Friend had further said, that if his own personal character were not sufficient, or if the long life which he had spent in public affairs would not suffice to shield him from the imputation of party motives, he should not know to what to appeal, unless it were to the manner in which he should discharge this duty which he had imposed upon himself. Now, he (Lord Melbourne) did not know what the appeal of his noble and learned Friend to his own personal character and conduct might do for him with their Lordships, but he did not think that his noble and learned Friend could trust much to the last branch of his alternative—viz., the manner in which his noble and learned Friend brought forward these matters; for a more bitter, a more violent, a more spiteful, a more inveterate, or a more criminatory speech he had never listened to. He said a more criminatory speech, for the speech was criminatory in the highest degree, not only of those who were present, but of those who were not present, whom the noble and learned Lord charged with conduct criminal in every respect and in the highest degree, and with that which amounts to the greatest possible delinquency. His noble and learned Friend had expatiated with all the strength of his eloquence of which he was so much master—on the high interest of this subject, upon its important bearing on various questions, and upon the manner in which it touched on that which is the foundation of society. Well, then, he said, that if their Lordships were to decide a question of this paramount importance, and vast weight, and intimate connexion with the best interests of society, they were bound to decide, not hastily, but calmly—not under the influence of party, but with the coolest and most discreet impartiality. Above all, they were bound not to decide at all, except upon assurance that they had sufficient evidence, and after a full consideration of the whole subject. But when their Lordships found that contained 1343 in these resolutions which conveyed the grossest imputations upon persons who had held the highest situations in the Government of the sister kingdom, and who still continued to hold the highest judicial situations there—when their Lordships came to decide upon such grave matters as these, which his noble and learned Friend propounded for their decision, surely they were bound to frame their decision on something more of knowledge, something more of acquaintance with the details and particulars of the subject as given in the evidence before their Lordships' Committee, so that they might be enabled to examine the grounds upon which these imputations were founded, and the real facts on which they stood. He wished, then, to put it shortly and clearly, at that period of the debate, to their Lordships' sense of justice, and he asked whether it were possible to pass these resolutions, involving as they did points of so much importance, (and what could be of more importance than their bearing on the administration of justice in the sister kingdom,) without having more time to examine and digest the voluminous mass of evidence, and to find in what degree that evidence was worthy of credit, as well as what other parties have to say to it, and especially what were the considerations which might be brought forward in abatement, and by way of refutation of that evidence. That evidence, too, as it seemed to him, ought to be taken in conbination with his noble and learned Friend, for their Lordships ought to consider that in affirming these resolutions, if such should be the issue of the debate, their Lordships would virtually and to all appearance be affirming, not the resolutions by themselves, but also all the violent and all the criminatory matter which filled the speech of his noble and learned Friend, and on which his resolutions were founded. At least, before they passed the resolutions, they ought to have time to see whether the facts alleged were really established in the evidence before the committee. Let their Lordships look at the resolutions, and see to what they pledged the House. Surely they would not pass the first resolution, with respect to the mode which had been lately introduced in Ireland of striking juries, without having time for some more full enquiry and consideration of the manner in which the new jury system was found to work. He did not 1344 mean to give any opinion upon the evidence: he was not master of it; he had not had time to make himself master of it; and he was perfectly certain that their Lordships in general were not fully masters of the mode of acting of the present jury system. As to the resolution which stated, among other things, that the prerogative of mercy ought never to be exercised without full and deliberate inquiry, and due consideration, why it was hardly necessary for their Lordships, at this time of day, to resolve that as an abstract proposition. That resolution must only be resolved as a criminatory proposition. He asserted that it was hardly possible that their Lordships should resolve such a truism as that in any way but as a criminatory proposition. Then with respect to the resolution stating the duty of the executive government to refer to the judges, previous to commuting the sentences of persons on whom judgment had been passed; why, he believed that reference to judges was always made a general rule; it was certainly made so in most governments with which he was acquainted; and he believed that in Ireland the rule was more strictly attended to than had always been the case in England. The only case in which it had been partially relaxed was that of Chief Justice Doherty. So that he thought the resolution was quite unnecessary as a prospective proposition, and that to pass it could be of no use whatever. So he should say of the last of the resolutions. He saw no use in passing it. Upon the whole, he must say that he thought it was perfectly impossible to quarrel with the truth of the propositions embodied in these resolutions, considered as abstract propositions and by themselves. They were perfectly sound, perfectly true, but rather common-place some of them he should say—rather elementary in their principles—and such as it was impossible to say furnished grounds to act upon. He begged leave, therefore, to say, that he should move the previous question on these resolutions. With regard to the language and sentiments of the speech to which their Lordships had listened that evening from his noble and learned Friend, he would say that his noble and learned Friend had spoken with great force, with great beauty, and with great eloquence, but at the same time with great injustice, because, not only had his noble and learned Friend thrown out grave and serious charges against the 1345 noble Marquess late at the head of her Majesty's Government in Ireland, but also on the whole of her Majesty's Ministers, by the application of the arguments which his noble and learned Friend had made. The noble and learned Lord had stated that the Government, by the approbation which they had shown of the conduct of the noble Marquess in the government of Ireland, had made themselves responsible for the acts of the noble Marquess while there. Unquestionably they had. But if a general approbation went to form a ground for these attacks, he begged to add one authority more in approbation of the noble Marquess, which he found in the speeches of Henry Lord Brougham, which were published in 1838. He did not know who was the editor of this publication, but whoever he was, he had favoured the world with various able disquisitions on political matters prefixed to the speeches. Among other things, this editor, or whoever he was, gave a slight sketch of the history of one or two lord-lieutenants of Ireland.Lord Wellesley, he said, who nobly signalised his entry into public life as a disciple of Grattan, before the passing of the Catholic emancipation by his brother, rendered himself the more dear to his countrymen during his first lord-lieutenancy, by holding the balance even between conflicting sects, and in his second lord-lieutenancy, by seeing that the fact and the law were made to correspond, and by giving; to the Roman Catholics the full share of those advantages to which they had by law become eligible. Lord Anglesey had promised the same liberal and enlightened policy, and now Lord Normanby, 'we feel pleasure,' said the writer, 'in restoring to him the name by which he was earliest known, who is equally distinguished for his conduct in public life, and his talents as a private gentleman and a literary man, is pursuing the same manly and honest policy by which he has most justly endeared himself to the Irish people.This was in 1838. But he did not quote it for more than it was worth. It contained a pretty strong approbation, however, of the noble Marquess's general Government; quite asstrong, he thought, as the letter of Lord J. Russell. It was written, too, a year after. The letter of Lord J. Russell was written in 1837, and the proceedings which were so much condemned took place in 1836. This eloquent passage of the noble and learned Lord's, which spoke of the noble Marquess as having held an equal balance between Catholic and Protestant, was said of a 1346 government, of which it was now said by the very same party that the Attorney-General had struck the juries so as to favour the Roman Catholics, that he might have it to say to his sect, "see what I have done for you"—of which it was also said, that they pardoned one man because his brother was a priest, and put another on his trial, with insufficient evidence, because he was a Protestant. Was not the noble and learned Lord as fully aware of the facts when he pronounced the eulogium, as when he gave utterance to the invective? Not having yet had it in his power to make himself master of the evidence in this case, it was impossible for him to go into it in such a manner as would be calculated to make any impression on their Lordships. His only object in rising was to state the course which he meant to pursue, and which he thought their Lordships ought to pursue, in reference to this matter. His noble and learned Friend had concluded his powerful speech with an eloquent and splendid eulogium on the virtue of justice. It undoubtedly was a most brilliant passage, but he thought he had heard some of it before. He alluded particularly to that part where he spoke of a vacillating House of Commons, a venal House of Lords, and a corrupt and ambitious Ministry, and of the power of justice overcoming them all. No doubt these were fine expressions; they put him in mind, however, of Sheridan's celebrated eulogium on the liberty of the press; but they were by no means the worse for that. It certainly was a very splendid and highly eloquent passage; but he could not help thinking at the time that those who talked of the virtue of justice most, sometimes exercised it least; and, accordingly, he was not surprised that the noble and learned Lord who had made this splendid panegyric of the virtue of justice to their Lordships, should be found that night violating all its substantial and essential principles.
§ Lord Wharncliffe
remarked, that when the noble Viscount who had just sat down charged his noble and learned Friend with having panegyrized the government of the noble Marquis in 1838, and having now made a speech full of invective against it, there was one thing to be remembered by their Lordships—that his noble and learned Friend could not by possibility have known the facts of the case till he found them detailed in the evidence which had been 1347 collected by this committee. He should have been perfectly satisfied to leave this case to the statement of his noble and learned Friend, and the answer supplied to that statement on the part of the Government, but that the noble Marquess, in the course of his speech, had attacked the conduct of the committee, and stated that they had acted unfairly to the Government and to himself personally, and gone into evidence into which they had no right to enter. He took leave to tell his noble Friend that he was mistaken. His noble Friend relied principally on the case of Colonel Shaw Kennedy as proving his allegation that the committee had taken evidence which they had no right to admit. What were the facts? Upon the resignation of this functionary, he had addressed a note to the Lord-lieutenant, explaining fully the motives which had guided his past official conduct. This note was tendered by him as evidence to the committee, and they took it. Was this any proof of the committee having entered into extraneous and irrelevant matter? The committee had called before them as witnesses Chief Justice Doherty, Chief Justice Bushe, Judge Perrin, and Judge Moore. But the noble Marquess said, "Why not call Baron Penne father before them?" Now, the noble Marquess was put in possession of the evidence day by day as it was taken. They took special care of that. If Baron Penne father, therefore, was a witness on whom the noble Marquess relied, why not suggest to the committee to examine him? The Goverement having been cognizant of all that took place before the committee, it was their bounden duty, if they considered Baron Penne father's evidence important, to acquaint the committee with this fact. But suppose that Baron Penne father had been examined, and had proved that he had been treated with due respect by the Government, what difference would that have made? Suppose it were also made out, that to Judge Doherty they had not acted with propriety, but, as had been remarked by his noble and learned Friend, had affixed to that learned person's character a black spot, as "a judge of the right sort, (the language of the memorial) from whom justice could not be obtained?" If any such conduct could be proved on the part of Judge Dogherty, be ought not to be suffered to remain one hour in office. With regard to the case of Gahan, he must say, that he did not think any an- 1348 swer to the charge had been given. A memorial worded so disrespectfully ought never to have been received. At all events it should have been in the first instance shown to the judge whose character was so bitterly attacked. In point of fact this memorial was a libel on Judge Doherty, who was perfectly justified in consulting his friends as to whether he should take proceedings. The noble Marquess said that this man had shown great contrition for his conduct. The fact was, that he had shown none at all. Of all his charges he retracted not one word. As to the exercise by the noble Marquess of the prerogative of mercy, surely it was too much to release fifty-seven prisoners from the gaol of Clonmel within one hour. Instead of availing himself of the opportunity of the tour which he was making, the natural course would have been to consult the assistant barrister, Mr. Howley, and then, if his representations were satisfactory, to have released the prisoners. The noble marquess asked their Lordships to look at the state of Ireland—at the stoppage of faction fights, and the diminution in the the number of assaults, which he attributed to this exercise by him of the prerogative of mercy. He must disagree with the noble Marquess; he did not believe one word of it. The doing away of compromises between the accuser and the accused was undoubtedly most beneficial, but the certainty of punishment was still more important. The most effectual way to deter from crime was to bring every case properly before the court and the jury, and to make punishment certain in the event of conviction. The noble Marquess had no right whatever to take credit to himself for his abuse of the prerogative of mercy. He had no notion that the noble Marquess had been actuated by sinister motives in any portion of his conduct, or that he had done anything of which he had occasion to be ashamed. Nevertheless, he did not believe that the noble Marquess had properly exercised the prerogative of mercy. While he thought that the wording of his noble and learned Friend's resolution was too strong, still he must think that the conduct of the noble Marquess on these occasions, without reference to the judges, was most undoubtedly indiscreet. He had thought it his duty to rise to defend the committee from those accusations which had been made against it. Upon the whole, he thought 1349 their Lordships ought to pass these resolutions, in order to show that they were not satisfied with the mode in which the government of Ireland had interfered with the administration of justice.
§ Lord Plunket
said, the resolutions which the noble and learned Lord had proposed were contrary to the opinion of the committee, and of every member of that committee ("No, no.") The committee had stated in their report that the inquiry should be proceeded with in another Session. ("No, no.") He begged pardon; what he stated was correct. The noble Lord called upon the clerk, who read an extract from the report to the effect thatThe Committee recommended the whole to the serious consideration of the House. It might be for the consideration of the House whether or not the committee should not resume its labours in the next Session of Parliament?He had rather understated the difficulty under which the noble Lord laboured in supporting motion of his noble and learned Friend, as chairman of the committee, or in the name of the committee to bring this subject before the House. The report stated that they had been prevented from completing their labours from the lateness of the Session and the great quantity of matter to be gone into, and that therefore they did not accompany the report with any observations; and the committee then went on to state that their labours might be resumed in another Session. If their labours were to be resumed, he took it they were to be resumed on the whole of the matters referred to them. It was very easy for the noble and learned Lord to say that it was only a particular part of their labours which were to be resumed. He begged to ask what right his noble and learned Friend had to say that they would not resume their labours on particular parts of evidence, when it would be open to every member of that committee to open every part, either for explaining the evidence already given, or for the purpose of o. throwing a new light upon it. He took it, therefore, as an extraordinary thing that this subject should be so urgently pressed on their attention. He knew of nothing very pressing or urgent which would not allow the postponing of this subject to another Sessions. He could not reconcile it to his mind why it was that they postponed the considera- 1350 tion of Ribbandism, which was not brought before the House now, and that there was such a pressure upon the other parts of the inquiry as would not permit of their lying over till a future opportunity. Had there been any new or urgent cause why the question of forfeiture of recognizances, which was the subject of the first resolution of the noble and learned Lord, should not remain to another period? Every Member of that House ought to have the opportunity of a full investigation of the subject, which he denied the possibility of under existing circumstances. He had applied himself assiduously to the consideration of the 1,300 pages of report, and had not been able in the time to master one-tenth of the materials which it was necessary should be mastered before going into the consideration of the question. There were some parts of his noble and learned Friend's motion of so serious a nature that he trusted that House would pause before it committed itself on the authority of an individual, however high in public opinion, and however rich in talent, to the perilous navigation in which he sailed. With regard to the forfeiture of recognizances of which the noble and learned Lord's first resolution treated, he (Lord Plunket) believed he was addressing an audience were was in general, ignorant of that subject, even if this were the time for making the inquiry, and that the proper place to do it in. The course of proceeding in forfeited recognizances of late years had been most absurd—it had been dilatory and circuitous; the consequence of which was that public justice was totally evaded. By the alteration of the law, the estreated recognizance went at once into the hands of the sheriff, and thence into the hands of the constable, and the amount was levied at once and all the former mummery entirely was done away with. Who was the person to enforce the resolution of that House, on this subject, unless it was competent for that House to undertake the task of legislation on this subject by itself and to settle it? The second resolution respected the ordering of jurors to stand aside. To such an extent had that been carried in Ireland, on account of religious feelings, as to make the administration of justice suspicious and odious to the minds of the people. When he held a former office in Ireland he had endeavoured to remedy that, and had given directions that no juror should be ordered to stand aside on 1351 account of his religion. The noble and learned Lord had said that the judges, in their judicial character, ought to be treated with the greatest respect; he did not know whether his noble Friend had exemplified his principle in the case of Sir Michael O'Loghlen. His noble Friend said he was not dissatisfied with Judge Perrin's instructions; but his were entirely the same as Sir Michael O'Loghlen's. The House would judge for itself. These were the words of Mr. Justice Perrin's instructions in 1835, with respect to the important matter of challenges. He writesIt is not my wish that any man should be set aside by the Crown against whom there is not good and sufficient reason, and if any private prosecutor applies to you to set a juror aside, let him furnish you with reasons, and furnish me with lists of the persons objected to, and the grounds of the objection.He now came to the letter of instructions of Sir Michael O'Loghlen in 1836:—It is not my wish that you should exercise the privilege of setting aside a juror except in cases in which a juror is connected with the parties in the case. You will not set aside any juror on account of his political and religious opinions; and you will be pleased in every case in which you may consider it necessary to set a juror aside, to make a note of the objecttion to him.Now, he should be glad to known what there was in the letter of Sir M. O'Loghlen which could fairly be made the subject matter of complaints. He had read as much of the evidence as enabled him to state that Sir M. O'Loghlen had sound reasons for the adoption of that course, and that the most beneficial effects had resulted from its adoption. The evidence proved that the departure from the old system had been most beneficial; the jurors, who were set aside, were naturally offended and affronted, and would not return again to be liable to be called, except on compulsion. Besides this, the old system gave to the prosecutors disposed to act unjustly an opportunity of packing the jury; it created great general distrust of verdicts so obtained. This was pointed out in a case stated in Mr. Barrington's evidence. It was that of a conviction in the county of Cork of a Roman Catholic priest for endeavouring to get persons to take a false oath in order to convict another person of murder. It was suggested to the conducting counsel that it would be better not to allow any Roman Catholic to be at that trial, but his learned 1352 Friend who conducted the prosecution said, that the case was so odious that he could not doubt the result, and he would not do any Roman Catholic the injustice of supposing he would not do his duty as a juror. His learned Friend accordingly did not put aside any Roman Catholic on account of his religion, and the case was tried by a jury composed of six Protestants and six Roman Catholics. Would the conviction have been so satisfactory to the public mind if the jury had been entirely composed of Protestants? On the whole, he believed that nothing had conduced more to restore tranquillity in Ireland than the change which had been made in the system of challenging jurors. He came now to another point of the case on which he wished to make a few observations—he meant that part which related to the setting aside sentences without communication with the judges by whom those sentences had been pronounced. Undoubtedly, on an application to remit a sentence, the proper course was to refer to the judge who tried the case; but to say that such a course was matter of necessity, and that in the exercise of the prerogative of mercy, he had never heard it suggested, till he saw the resolutions of his noble and learned Friend, that the Crown ought to be restricted by a reference to the judges. But it had not been the invariable practice to act upon the opinions of the judges on such matters. He remembered a case which occurred to himself at the time he had the honour of holding the office of Chief Justice of the Common Pleas in Ireland. He sat at the Commission Court in Dublin with his esteemed Friend, since deceased, Mr. Justice Vandeleur. Two gentlemen, of the names of Smith and Markham, were tried and convicted of manslaughter, and Mr. Justice Vandeleur and he had agreed in fixing the sentence at two years' imprisonment: they had thought, considering the circumstances of the case, that to be a lenient sentence. An application was made to the then Lord-lieutenant (the Marquis of Anglesey) to commute that sentence, and the case was referred to him, and he, with Mr. Justice Vandeleur, gave their opinions that the sentence ought not to be commuted. Lord Anglesey, however, thought otherwise, and did very properly, perhaps, remit the sentence. The resolution proposed by his noble and learned Friend did not go the length of saying that the Crown ought to 1353 be bound by the opinion the judge might give, and therefore it left the matter as it now stood. But cases might arise—convictions for political offences, for instance—in which the judges might refuse to give any opinion, as had been shown by the evidence of his valued Friend, the present Chief Justice Bushe. When applied to by the noble Marquess in a case of that kind, his learned and excellent Friend had made this answer:—"I will give you no opinion upon it, except as regards the law or facts of the case." It was, therefore, not for the judges to decide upon what might be prudent and provident to be done by a government in the exercise of mercy with a view to the political tranquillity of the country,—it was for the Government, who knew the circumstances in which the country was placed. Now, a great deal of what had been done in this respect by the noble Marquess had been grounded on expediency, and this exercise by him of the prerogative of mercy had been tried as an experiment; and he could congratulate his noble Friend and the country that the experiment had succeeded, for it had led to increased and still increasing tranquillity. His noble Friend had governed Ireland as he had promised, and, like Lord Hardwicke, had won the affections of the people. He thought the statement made by his noble and learned Friend with respect to his constitutional view of the prerogative of mercy was not correct. His noble and learned Friend seemed to think that the prerogative of mercy was like every other prerogative, and was to be exercised only by means of responsible instruments, but his noble and learned Friend forgot that it differed from all others in this—that the prerogative of mercy was a grace to be exercised by the Crown, and did not grow out of any right existing on the subject; in that respect it differed from other prerogatives—such as those of declaring war, of concluding peace, and of entering into commercial treaties. Every freeborn subject had a right to claim from the Crown that which the law gave him; but when he became a suitor for grace and favour he depended on the bounty of the Crown. His noble and learned Friend would find that principle laid down by Blackstone, in the fourth volume of his Commentaries. Would his noble and learned Friend state any instance in which a measure had ever been brought forward arraigning the 1354 Crown for the exercise of the prerogative of mercy? This was a novel experiment made by his noble and learned Friend, and he did not think their Lordships would be ready to commit themselves, even on the high authority of his noble and learned Friend, by adopting the resolution. One word more. Several cases had been stated, in which it was alleged that the noble Marquess had misconducted himself, but those cases, especially that of Gahan, had been misconceived and misrepresented. In Gahan's case, his noble and learned Friend seemed to suppose that the judgment of the Attorney-general had been brought into competition with that of Chief Justice Doherty, and again in the case of Connors with that of Mr. Justice Moore. This was a mistake. The Attorney-general had been called upon to exercise his judgment as to whether certain persons should be put upon their trials. Connors was one, and he was convicted by the jury—a verdict in which Mr. Justice Moore acquiesced, and sentenced him to seven years' transportation, the highest punishment the law had allotted to his offence. He, however, had an opportunity of reading the evidence, which he did not think twenty of their Lordships had done, and the subsequent report of Mr. Justice Moore on the case was, that the more that learned judge turned over in his memory that decision and sentence, the more he was satisfied of its injustice and severity. The consequence was, that upon reconsideration a free pardon was granted, because the judge was satisfied afterwards that the party had been convicted upon the evidence of persons who ought not to have been believed. Sir Michael O'Loghlen had been spoken of as having attempted to over turn the judgment of Lord Chief Justice Doherty; but he denied that there was any ground for such an opinion. In the case of Reynolds, there was a mistake upon a point of evidence; it was true, that he was present at a meeting held for some political purpose, at which a riot and assault took place; but it was clear, from nine-tenths of the evidence, that he took no part in the riot and assault, and therefore his punishment was commuted.
The Earl of Roden
said, as the noble and learned Lord who had just sat down seemed to be ignorant of the proceedings which had been taken in reference to the evidence now under discussion, it might be 1355 convenient if he stated shortly, that it was the opinion of a large portion of the committee, that some report ought to be made this Session upon so important a subject; and for some days several members of the committee were engaged in drawing out different branches of that report, and they met on a certain day to consider those papers, each of which was laid before the committee. After much consideration and discussion, which was carried on with the most kind and friendly feeling on all sides, it was at last proposed by two members of the committee, that as there seemed to be no end of the proceedings in hand, and it being desirable that a report should be presented before the separation of Parliament, and knowing the anxiety which existed, not only amongst their Lordships, but in the country upon the subject, part of the various reports then under consideration should be taken up, which was merely the substance of that which was now lying on their Lordships' Table. The noble and learned Lord who had brought forward his resolutions tonight, upon that occasion addressed those who were more anxious for a detailed report, and said, if they would forego their wish, and agree to that which he then proposed, he would undertake to bring under the discussion of their Lordships that part which related to criminal law, and the administration of justice, naturally feeling, as a lawyer and a judge, that to be the most important part which could bias and engage his mind. It was then agreed that the substance of that report should at once be printed. There was, however, one sentence in that report on which he (the Earl of Roden) took the liberty to differ, and he divided the committee upon it. It related to this question. He was desirous that the committee should express their anxiety to resume their labours again, during the next Session of Parliament, for he felt most strongly, that they had not half sifted much important matter that came before them, and he agreed with the noble Marquess, who had tonight said, that there were many subjects connected with crime in Ireland which the committee had left untouched, and to which, if they had time, it was their duty to apply their minds. When that question was raised, the committee thought it right to differ from him, and the report had been brought up in its present shape, leaving the House to say, whether there 1356 should be another inquiry hereafter or not. But the noble and learned Lord who spoke last complained, that it was unfair to enter into a discussion upon any part of that report, because he for one had no time to read the evidence, and therefore it was impossible for him to come to a decision upon the subject. Why, the noble and learned Lord was named as a member of that committee, and his name remained on it to the very last; therefore it was the fault of the noble and learned Lord himself if he did not choose to attend the committee, that he was not better acquainted with the subject. If the noble Lord was uninformed on any part of the inquiry now under discussion, it was his own fault. With respect to the course which had been pursued by the noble and learned Lord who had proposed these resolutions for their Lordships' adoption, he believed they would receive the thanks of a very large portion of the community, as he believed it was impossible to let the facts which were brought out in this evidence lie dormant and unnoticed. The noble Marquess had referred to what he (the Earl of Roden) said, at the commencement of this inquiry, when he moved for the Committee on the 21st of March, and stated that he made assertions on that occasion in which he was not borne out by the evidence, and therefore called on him to retract them. All he could say was, that if the noble Marquess could prove to him that any assertions which he had made were not so borne out, or that he was mistaken in any opinion he had given on the state of Ireland, he should be most anxious to retract them, and to express his sorrow for any mistake he had made. But what he then stated he stated now—that he had no party feeling, no political object, to bias or interest him—no desire in the world, but that the truth might be elicited, and that the state of his unhappy country should be brought before the world, that they might not have from day to day contradictions thrown from one side to, another—that when one person stated anything it should not be immediately denied by some one on the opposite benches. He knew that if the truth was to be got at, it was only by having a committee such as that which their Lordships had appointed, to go into the detail of the whole business; and he thought the committee had brought out matter more important, perhaps, than had ever been laid 1357 before Parliament upon any subject for a great length of time. His hope was, that not only their Lordships, but the country—not only the higher classes, but the middle and humble classes, would get acquainted with that evidence, and make themselves master of it, for by that means they would know what was the real situation of Ireland, and not take their information from those publications which sent forth libels against the magistracy and gentry of Ireland. The noble Marquess had referred to his gaol deliveries, and had stated nearly the same things that he stated on the night when he (the Earl of Roden) moved for the committee. His language then was this—Two things I distinctly deny; first, that upon these occasions any persons detained for various offences were discharged without mature consideration and previous inquiry; secondly, that any were discharged, merely because I passed through the town, who would not have been considered entitled to the same indulgence if I had not passed through the town.The noble Marquess also found fault with him for not having brought these charges against him sooner. He begged to remind the noble Marquess that in April, 1837, he stated the very circumstances connected with these gaol deliveries which he now stated, and he was answered by the noble Marquess, the President of the Council, who seemed very indignant upon the occasion, in this manner—He would tell them (the Lords on the Opposition side) that he regarded the Constitution of the country as highly as they did; and he could inform them also, that what the Lord-lieutenant did, he did after due consideration. Complaints had been made as if he had visited gaols and liberated prisoners, as if he had done it on the impulse of the moment. Now, he believed it impossible that he could have done so without having made himself master of the cases.That was the opinion of the noble Marquess, the President of the Council, in answer to the statements he (the Earl of Roden) made in April, 1837. He would refer their Lordships to the evidence only, to see how far the noble Marquess was borne out in that opinion. The noble Marquess had that night told the House that the proceeding was only an experiment, which he rejoiced to say had completely succeeded, and which Mr. Howley and some other in formants, whose evidence 1358 he read, had represented to have been most prosperous, and that great blessings had been produced by it. The noble and learned Lord (Lord Plunkett) had said, that this experiment had been a boon and a blessing to the country. He would now take the liberty of referring to three cases to show what effects the experiment had produced. He begged to remind their Lordships that the noble Marquess had taken his ground upon this assertion—that it was only in very light cases that he had exercised lenity, and that in no in-stance was there any great crime committed by any of the individuals who were thus turned out of gaol. He would first of all refer to the evidence of Mr. Fielding, gaoler of Mullingar. The question was 2641—Were there any prisoners liberated from your gaol in the year 1836?—There were nineteen." (And the witness went on to state, that those nineteen prisoners were liberated by the verbal order of the Lord-lieutenant.) "(2,658.) Have any prisoners you discharged been since recommitted to gaol—There have; there have been six committed, and two out of the six have been transported." "(2,669.) What was the charge against Edward Gannon?—An aggravated assault. What was his sentence?—He was sentenced to two years' imprisonment, I think, and each alternate week to hard labour, and to find bail on his discharge; seventeen calendar months and eleven days of his sentence were remitted." "Was he discharged without finding bail?—He was." "What has he been committed for since?—He is now charged with murder.Another case was that of William Carey, who was convicted of appearing in arms at night—a minor offence—and sentenced to be imprisoned for 18 months; he had 11 months and 22 days remitted. The governor of the gaol of Clonmel states the case of William Flannery, who was committed to gaol on the 30th of August, 1834, having been convicted of a grievous assault, and sentenced to two years' imprisonment; six months of which was to be hard labour. He was a year and nine months in gaol, and then discharged by the Lord-lieutenant on a memorial. This case was worthy of attention—it was thus described by the witness:—(4,117.) When was that man recommitted to gaol?—The 16th of July, 1836." The first committal was on the 30th of August, 1834, when he was condemned to two years' imprisonment; three months of that period were remitted, and on the 16th of July, 1836, he was recommitted on the charge of murder 1359 being within the period which he ought to have spent in gaol.That man was afterwards executed at the spring assizes of 1837. Had he (the Earl of Roden), then, said too much when the noble Marquess found fault with him for saying that the history of his Viceroyalty in Ireland was marked with tears of sorrow and stains of blood? He had used those expressions, and when he read such cases he must still use them. The noble Lord had talked of the benefit of this lenity, which he called cruelty, for lenity to murderers was cruelty to the community at large; and he would refer him to the language of Mr. Fausset, who had been twenty years a magistrate in the county of Sligo. The noble Earl quoted it as follows:—(2,587.) You state that persons have been let out of gaol on account of petitions sent to the Lord-lieutenant; have you ever seen those petitions?—Frequently. By what class of persons were they signed?—A number were signed by the Roman Catholic priesthood, and persons all about the neighbourhood who knew the parties, and by some who knew nothing about them. Were they generally signed by respectable persons in the neighbourhood?—In some instances they were; in seine not. Do you remember any that were signed by respectable persons in the neighbourhood independent of the Roman Catholic priesthood?—I cannot recall them to my mind. Is it your impression that those petitions were generally to be relied on, generally speaking, as stating the facts?—Certainly not; I am aware that many do not state the facts.Mr. Finn, a Roman Catholic gentleman living in Carlow, was asked—(10,524.) Can you form any opinion as to the impression made upon the minds of the people of Carlow by that discharge—the gaol delivery on the visit of the Lord-lieutenant to Carlow?—I think it appeared, in some degree, to encourage the system of outrage which then prevailed to some extent; that they looked upon the commission of small crimes with indifference, calculating upon the clemency of the Government to commute or curtail their punishment in case of conviction.Complaints had been made of the resolutions which had been submitted to their Lordships' consideration, but it appeared to him those resolutions were merely a statement of facts, and if they were disliked by any one, that could not be helped. If the cap fitted any person, the person whom it fitted must wear it. He believed, that by passing the resolutions which had been brought under their notice their 1360 Lordships would do much good, as their affirmation would be a warning to other persons intrusted with authority not to abuse that authority in such a manner as to bring misery and wretchedness upon a country. He could not help rejoicing that a committee had been appointed, because truth had been elicited, and the evidence had come from persons of all classes—from persons of the highest respectability, who were officers of the Government. They were highly honourable men, and it was his own opinion, and the opinion of every member of the committee, that a more highly honourable body of men never came before any tribunal for examination. It was his comfort, after battling for years, that this committee had been appointed, and that the subject was now brought so much nearer to a close: "magna est veritas est prævalebit." It was his intention early in the next Session to call attention to other parts of the evidence, and at present he should not trespass further upon their Lordships' time.
§ Lord Hatherton
said, there was one topic, at least, in the speech of the noble Earl who had just sat down in which he fully concurred, and that was as to the character and talents of the persons connected with the Government who had been examined before the committee. He did not believe that in any country, sixty or seventy persons, from the highest to the lowest officers of the Government, could have been found who would have displayed equal talent with the witness who had been examined before the committee. He felt that some apology was due to their Lordships for his addressing them on subjects on which it was difficult for persons who had not had a professional education to argue; but he trusted he might be permitted to say a few words in reference to the setting aside of jurors, to which one of the noble and learned Lord's resolutions was directed. He felt persuaded, that if that resolution was passed, the effect would be to destroy, in a great degree, the confidence of the people in the administration of justice. He had always held a strong opinion on this subject, and he held the same opinion now as he had when he had been Secretary for Ireland. He had always entertained the opinion that the restrictions as to the setting aside of jurors must be carried much further, Let their Lordships consider 1361 what had been the effects of the system of setting aside, which had so long been acted on. In 1834, he had expressed an opinion that the restrictions ought to be carried farther than they had been, and that opinion had been fully borne out by the evidence which had been adduced before the committee. He would not occupy their Lordships' time by reading the opinions which had been expressed on this subject by persons of the greatest weight and authority, and particularly by Mr. Drummond, and all of which were in favour of making great alterations in the system of challenge which had generally been pursued. He would, however, mention one or two cases to show the extent to which the system had been carried. In 1817, on one panel thirty-eight jurors had been set aside, and of that number twenty-seven were Roman Catholics. One of the persons was the high-sheriff, another was a grand juror of two counties, and nearly the whole were persons of considerable property. There was another case in 1830, in which fifteen jurors had been set aside, a large proportion of whom were Roman Catholics. There was also another case in 1834, in which ten jurors were set aside, all of whom were Roman Catholics. In 1834, at the Kildare Assizes, about forty persons had been set aside, and cases of a similar nature were by no means uncommon. Now, such challenges on account of the religion of the jurors certainly were far from wise, and did not create confidence in the minds of the people relative to the administration of justice. He himself had written to Ireland on the subject, and had stated that such a practice was unknown in England, and that its legality was doubted by some of the ablest lawyers. He should not go at any length into the instructions which had been issued by the Attorney-general on this subject, but he might be permitted to say, that in his opinion, they were all precisely of the same character, and that all had been productive of the same results. Let them listen to the evidence of Sir M. O'Loghlen himself in reference to these instructions. He was asked,Was it your opinion, that the practice of challenging jurors was open to great abuse?He answeredCertainly it was. I beg to state that I introduced a rule that the Crown solicitor should not put aside any gentleman returned by the sheriff merely on account of his religious 1362 or political opinions; but he had a full right to set aside any person connected with the case, or otherwise disqualified in any way from serving on the jury.Here he might remark, that one of the reasons why it was not necessary for the Attorney-general to be more precise in his instructions was, that all the Crown solicitors resided in Dublin, and were in daily communication with each other. They were consequently fully aware of his intentions without the necessity of having precise instructions from him. There was also another reason. On one of the circuits, it had never been the practice to challenge. The practice prevailed more in some circuits than in others, and the instructions were necessarily framed to suit all the circuits, but practically the effect had been the same in every case. Much stress had been laid on the evidence of Mr. Kemmis. The noble and learned Lord had said; that Kemmis had disapproved of publicans acting as jurors, but when Kemmis was asked "Would you in any new law exclude publicans from the power of sitting on juries?" he replied, "No, I would not, because some publicans might be very proper persons, others might not;" and he had also stated "the present Attorney-general authorized me to supersede publicans." It was clear that the same authority would have been given by Sir M. O'Loghlen, and it was also clear that there was a power to set aside the relations of the party accused, persons connected with the case, or any other improper person. But it was most important to have Kemmis's opinions of the results of the new system. He was asked—What is the general opinion of the country with respect to the administration of justice, as compared with their opinion formerly?He replied—With respect to that, I think the fact is, that the lower class of people have a greater confidence in the juries, because they see the Crown never set anybody aside.Then came the important testimony of Sir M. O'Loghlen himself. Sir M. O'Loghlen had put in the letter from Mr. Tickell, which showed the good effect of the new system; and he had also saidI got statements from the Crown solicitors, and particularly from Mr. Geale, of the home circuit, who had seen this system of challenging going on, and he stated his perfect conviction that the rule was operating beneficially, and that the number of convictions had been increased in the result.1363 He believed that the answers of Mr. Kemmis, when in favour of his noble and learned Friend's views, were given to what might be described as abstract questions, but that if Mr. Kemmis had been asked what he would have done in such and such a case, he would have behaved just as Mr. Barrington and other Crown solicitors had done. He would ask where there was any evidence to show that the system of which his noble and learned Friend complained had produced any mischievous results? He defied any noble Lord to point out where such had been the case. The only difference, however, between the principle which the Irish Government had adopted and that proposed by his noble and learned Friend, though it involved a very important consequence, would be, that his noble and learned Friend's principle would exclude from juries all those who had any political connexion with the case. Politics and religion, however, were so intimately connected in Ireland, that if the Crown solicitor acted on that principle the result would be to exclude all persons from the jury who happened to belong to one religious denomination or another, and thus the great object of the Jury Act, which was to give the great body of the population of Ireland the privilege of sitting on juries, would be practically lost. If, however, the Protestants set aside the Catholics in one district, the Catholics would on their part set aside the Protestants. Cases in which the panel might have a political connexion with the cause about to be tried must necessarily be numerous in Ireland. Take, for instance, the case of a riot or misdemeanour arising out of a general election, or the case of a prosecution for libel. In most counties there was a liberal club, which comprehended the great bulk of the liberal constituency. Would it be wise to put aside such of the jury as were members of the liberal club, solely because they felt a political interest in the question which was to be tried? He must say, that in his opinion the moral triumph of obtaining a verdict from a jury so constituted would be infinitely greater than if they were to set men aside on account of political predilections. The testimony of Sir M. O'Loghlen went to show that this system of not challenging on account of political bias was generally successful. The evidence of Mr. Barrington, of the Munster circuit, was to the 1364 same effect. Now, he begged to ask if, in the face of all this evidence, their Lordships were prepared to pronounce a verdict which would declare their opinion that a system of a contrary character ought hereafter to be pursued. If he had known, when the committee was about to close the evidence that his noble and learned Friend would have called on their Lordships, at this time of the Session, to pronounce an opinion on this subject, he should certainly have felt it his duty to call, on the part of the Irish Government, for other evidence to show that the system of not challenging had worked well. Mr. Brady, and Mr. Pigot, an English-bred lawyer, who was in town at the time, might both have been examined. In his (Lord Hatherton's) opinion, nothing more unfortunate, as affecting the opinions likely to be entertained by the Irish population on the administration of justice, could take place than the adoption of this resolution of his noble and learned Friend. It was indeed said that prisoners had now more confidence in their chance of escape than they had before. He believed it, and he thought that that confidence was a greater compliment to the administration of justice than their former despair. The constitution of the courts, in the opinion of the Catholic population was formerly extremely different. The Catholic prisoner, on going into court, saw a judge on the bench notorious for the strength of his political opinions. He saw an Orange counsel busy in removing from the panel all those who could be supposed to find any sympathy for him, and the prisoner himself and his numerous connexions who attended on such occasions were persuaded that the prisoner was brought to immolation and not to justice. With respect to the resolution relating to recognizances, it had been entered into so fully by his noble and learned Friend who sat beside him that he would not say one word about it. With respect to the case which had occupied so much of their Lordships' time, that of Gahan, he did not think it necessary to say much, for so far as his noble Friend was concerned he stood quite clear of blame. The only question was between Chief Justice Doherty and Sir M. O'Loghlen, and that he left for lawyers to decide, although having paid much attention to the point, he thought that Sir M. O'Loghlen had justice on his side. He must observe that Chief Justice Doherty 1365 seemed throughout to have felt that he was injured or misused in having his judgment set aside. His learned Friend (Sir M. O'Loghlen) had, on the other hand, stated that if he had presided as judge of assize, and had been obliged in the exercise of his duty to sentence any man to death, he should have felt sincerely rejoiced at the remission of that punishment, no matter how it was obtained; and he would say, that after a judge had discharged his duty, on the bench, it ought to be no matter of regret or complaint, that the Crown, no matter from what source instructed, had thought proper to remit the sentence. In reference to the resolution respecting the liberation of prisoners from gaols, he would not make the noble Marquess a compliment, by saying that he approved of that liberation. But that was no reason why he should vote for his noble and learned Friend's resolution. That liberation took place three years ago, and there was no Member of either House of Parliament who had made it the subject of a vote of censure. He had also too much respect for the Crown to interfere, whatever his own opinions might be, with the exercise of the prerogative of mercy. Having taken an active part in the committee, he could not allow the discussion to close without making these observations.
§ Lord Stuart De Decies
observed, that it was the duty of a Government to pay attention not only to the habits but to the prejudices of a people, and thus obtain their respect for the due administration of justice. He recollected, that when in 1836, the Lord-lieutenant of Ireland directed a wholesale act of clemency to be executed, and liberated ninety-four Orangemen who had been engaged in illegal processions in the north of Ireland, and in the outrages growing out of them, his conduct was eulogized as being characterized by great prudence and consummate wisdom, but when the scene changed from the north to the south, and when Catholics, not Protestants, were the objects of his clemency, then those who in 1836, were the foremost to approve of the exercise of the prerogative of mercy, were the first to condemn it. The noble Lord vindicated the whole course of policy pursued by the late Lord-lieutenant of Ireland, whose example must be followed, if it was desired to consolidate the strength of the empire.
in reply said,* At this late hour, and after the lengthened indulgence your Lordships were pleased to extend to me at the commencement of the debate, I need scarcely say, that I shall trespass upon your time but very briefly; and that I much wish I could relieve you and myself from the necessity of my doing so at all—the more especially as the symptoms of impatience, which were manifested during the able speech of my noble Friend (Lord Stuart de Decies), afford sad warning of the waning night and the waning patience of the House, and give me, whose fate it is to come later still before you, a mournful presentiment of the hard encounter that awaits me with your exhausted powers of attention. There, are, however, one or two points upon which I have been misunderstood, or misrepresented, and on which, therefore, I feel it necessary to give some further explanation. It has been stated, that the noble Marquess, on visiting some gaol, I believe Waterford, minutely examined the cases of all the prisoners who were confined there, and liberated those only to whom he thought it was fit that mercy should be extended. I, however, have seen no evidence bearing out that statement; and certainly with regard to another prison, he did not enter into a minute investigation, for in that instance no fewer than fifty-seven persons had their cases examined, and were discharged by the noble Marquess, within one hour. And I believe some such examination and release took place, also, in Sligo. As for my noble and learned Friend behind me (Lord Plunkett) he has entirely misunderstood me; for he seems, by the tenor of his address to your Lordships, to think that I am bringing in a bill to alter the law of recognizances. Now, I do not complain of the law, therefore I have no occasion to propose any alteration in it; but I do object to the manner in which the law is executed. We have evidence that the recognizances have been estreated; that the sheriff attempted to levy; but that he could not levy, because the parties bound had no property; they were of the same class of persons as the offenders, and they had little or nothing on which to make a levy. Then they were imprisoned, it is true; but they were let out in ten or twelve days. This is what we complain of; it is what could not hap-* From a corrected Report.1367 pen, unless in extremely rare instances, here; and it altogether paralyses criminal justice in Ireland. That is the short case. All the learning, therefore, thrown away by my noble Friend on the practice of the Exchequer respecting estreats, the various absurd stages which belonged to this process under the old rules, and the changes which have, in late years, been made to simplify that once complicated operation, is just so much learning thrown away on the present occasion. My noble Friend seemed to have some compassion for our ignorance of these Crown Office details. The truth is, they are familiarly known, here to the profession; but they are as useless in this debate, as they are familiar. No man, now, calls for any change in the law; no man impugns its sufficiency for its object. But all complain, that it is unexecuted, and its object not attained. Then it is asked, and the question was cheered by a noble Friend of mine (Lord Holland), who is also a friend of liberty and of the constitution—except on a question in which Canada or Jamaica liberty and constitution may chance to be concerned, it is asked, who is to attend to this? Why, the answer is plain enough,—the very parties who let these persons out of gaol. They it is, who are to execute, and not break the law. If the judges let them out without the consent of the Crown,—the cognizee of the bond, and to whom the penalty is due—then these judges must henceforth change their course—and nothing can be more wholesome than such a hint as is conveyed to those learned persons in this first resolution; but if the judges do not proceed thus—and I have no reason to think the fault lies with them—then the officers of the Crown, who have been remiss, must be cautioned and stimulated, and surely they will act properly in future, after your Lordships shall have reminded them of their duty. Then my noble Friend (Lord Plunkett) says, that I am unacquainted with the meaning of the prerogative of mercy, and that I entertain an unconstitutional or an ignorant notion of this eminent office of the Crown—a function which he extolled as beyond every other possessed by any kind of functionary, elevated, peculiar, beyond being touched; a function spoken of as above being controlled. But I am not half so ignorant, permit me to say, as my noble and learned Friend himself, who thinks that this is distinguished 1368 from every other prerogative of the Crown—that it is to be exercised at the mere grace and pleasure of the Crown—that it differs from every other prerogative, inasmuch as the subject has no claim upon the Crown for it, and no right whatever to ask it. If this, indeed, were the only one of the prerogatives exercised at the pleasure of the Crown, how does the Crown create Peers? How does it grant franchises? How does it confer pensions? No man, surely has a right to any Peerage or other honour, though we every day see many men obtain such. No man has a right to a pension, OA other Crown grant of profit. No body of men have a right to a charter, or other liberty. In this respect, these ordinary prerogatives of the Crown differ not at all from my noble and learned Friend's peculiar and special prerogative of mercy. Why, really, instead of its being any distinguishing feature of the pardoning power, that it is exercised gratuitously, and that no one can claim its benefit as of right, this seems rather to be the most ordinary feature in all the prerogatives of the Crown, and to be an incident common to them all. Out of its mere grace and favour, the Crown confers honours. Yet, if we see the Crown playing with that undoubted prerogative, as a child does with a bauble—or if we see it used for wicked purposes—who can doubt that the Minister will be responsible?—ay, and who can doubt that Parliament, seeing honours thus recklessly lavished, or unworthily bestowed—distributed for a bad purpose, or for no rational purpose at all—would interfere by a resolution, and control, or at once stop, the abuse of the Crown's right? Mercy is a prerogative of the Crown, to be exercised in the same manner as all other prerogatives—with sound discretion, by responsible Ministers, for the public good, not for the personal gratification of the Sovereign or his servants. It is, like all other powers in the State—whether held by the Prince, the Peers, or the Parliament—a public trust for the people's benefit; and the higher, the more important the subject matter of it, the more delicate is the trust,—and the more cautiously, the more tenderly, the more deliberately, must it be executed by the Crown. My noble and learned Friend asks, who ever heard, and when did we ever know, of an interference with the prerogative of mercy? Why, over and over again, even within the last two cen- 1369 turies. There were the cases of Strafford and Stafford, in the reigns of Charles 1st and 2nd, where the people interfered with the mercy of the Crown; but these were bad precedents, and I will not refer to them; but the statute of Northampton was made with this express view. To show my noble Friend how little he knows of the subject he has been schooling us upon, I will only refer to two or three lines of that statute. I feel some satisfaction in proving to him, that I am not so ignorant of the points of this law as he seems to think. "Whereas," (says the statute 2 Ed. 3rd), "offenders have been greatly encouraged, because the grants of pardon have been so easily granted in times past, of robberies, felonies, and other trespasses." Is not this precisely the argument in the present case? And upon this preamble the Legislature restricted the prerogative, within limits which have subsequently been, no doubt, removed. But I do not consider that the reason thus assigned, and the law made in that year (1328), and confirmed ten years later, are a peculiarly ill authority for my own doctrine; at any rate, I am sure it is an answer to the somewhat triumphal question of my noble and learned Friend, when did any man dream of restricting or ever of touching the pardoning power? My noble Friend, on this subject, while declaiming against our ignorance, only dealt, be it observed, in vague generalities. He laid down some positions; but he quoted not one single authority, save the very general and well-known panegyric of Blackstone, which applies to my doctrine just as well as to my noble Friend's. Now, I, on the contrary, have quoted authorities; I have referred to Bracton and Staunford, as well as the statute book; and I have especially referred to Sergeant Hawkins,—as great an authority, surely, on this question as Mr. Justice Blackstone. If both Blackstone and Hawkins, on a point of criminal law, were quoted in any court of justice, I know which would be considered the best authority; but, in truth, Blackstone does not differ from Hawkins: he calls it, "the high and amiable prerogative of the Crown;" but he does not state that it is to be exercised without responsibility in the Ministers by whom the Crown is served; far less does he say that it may be exercised through mere caprice, either of the Sovereign or his servants. I prefer, however, the au- 1370 thority of Hawkins; because, instead of keeping to generals, he specifies the very principle that ought to govern the pardoning process. He lays it down, that mercy is not to be shown, but in cases where, on due examination of all the facts, it shall clearly appear that, had the law been able to foresee the particular circumstances, it would have excepted the offender from the penalties which it has denounced. It is not to be adopted, because there are fifty or sixty prisoners in the gaol, and the governor shall say, "I have a mind to let them out; if we make some of them shake hands, lecture others on their future conduct, nod they all go out, either in a mass, as at Sligo, or in platoons, day after day, as at Clonmel, the movement will improve the state of the country." Much less is it said, that the gaols may be cleared in one place, and left filled in another, according as the Viceroy shapes his course on a tour. Neither Mr. Justice Blackstone, nor Mr. Sergeant Hawkins, gives any countenance to so wild a plan of mercy as this. Nor does any one former precedent of our Government, since the time of the Plantagenets and Tudors, and first of the Stuarts, when a coronation or an accession was the signal of gaol delivery in cases of a trifling sort. But the state of the country has been referred to, by way of a set-off, I suppose, against these strange acts of the executive power. Certain facts have been proved—they are not denied—the inferences from them are hardly disputed—now, how guilty soever these may be; but certain other facts have been stated also, of a wholly unconnected class, and the case runs parallel and not counter to that which it was intended to meet. No cause has been stated for the Government being able to withdraw 2,000 men which were required in other and more disturbed parts of the country; it is all ascribed to the gaol delivery. Whatever charges are brought against the Irish Government—how specific soever they may be, and how plain the evidence to support them though they show the administration of justice to have been extremely defective, and the use of the pardoning power to have been most inconsiderate—though the direct tendency of these errors and abuses is to the encouragement, and not to the suppression of crimes—still, in answer, or rather in compensation for all this, they hid us look to the flourishing state of Ireland. The 1371 peace is unbroken by rebellion; agriculture thrives; the means of the people are improving; there is no immorlaity to be complained of. Nay, my noble Friend near me (Lord Stuart de Decies) conceives that all jealousy has ceased out of the land; and consequently, I presume, all cause for it too. This is the fairy picture we are desired to look at,Tutus bos etenim rura perambulat.Nullis polluitur casta domus stuprisMos et lex maculosum edomuit nefas.I wish, indeed, I could add as correedy,—Culpam pœna premit comes.My Lords, the two cases do not meet; they are parallel—and the defence is a set-off, not an answer, to the charge. Then it is said, "How soon you bring forward this motion! we have not yet had an opportunity of reading the evidence." Yet, that the noble Marquess has evidently read every part of the evidence hearing on his own case, and necessary for the present debate, is quite clear; not a tittle of it knowingly, has escaped him—although he has not, certainly, stated its purport in debate as clearly as he seems to recollect it. But, if we were to wait until those to whom the subject is very disagreeable, shall have read the evidence, I fear, that we should never bring forward any motion, or come to any decision, upon the question at all. I have more than once informed your Lordships how this motion originated. I had supported the noble Earl's (Roden's) demand of a committee, upon one only ground—the charges made, and never denied, respecting the administration of justice, and especially that important branch of the judicial administration—the exercise of the prerogative in pardoning. In the committee, I confined myself chiefly to that portion of the inquiry. I appeal to all who served with me, whether I did not hold the balance, as far as it was in my hands, with strict equality and fairness between the two parties—whether I did not subject the witnesses against the Government to full as strict an examination as those produced in its behalf—whether I did not extend the same protection to the one class as to the other. But a mass of evidence was collected, of vast bulk, various aspect, and great importance. We almost all deemed it necessary to give the House some Report upon its contents—not expressing 1372 any opinion, but stating the substance of the proofs, and enabling your Lordships easily to understand the result of our inquiries. We determined, therefore, to furnish an abstract, which might embody the contents of the evidence, and serve as a key to unlock it. Several of the Members took each a department. My noble Friend opposite, our Chairman (Lord Wharncliffe) undertook the whole subject of the Ribband conspiracy: my noble Friend near him (Lord Ellenborough) took the state of crime, and the granting of pardons: I undertook to form an abstract of the other matters relating to the judicial administration—naturally enough, because that had formed the main object of my attention in the course of the long enquiry we had conducted. When we met to consider these several abstracts, objections were raised—and raised by the noble Lords who had all along defended the Government—of such a kind, partly as to expressions, partly as to omissions, partly as to arrangement, at almost every line, that it was quite manifest, weeks and months would not suffice to agree upon any Report or Abstract, or even any Index at all; and I, therefore, at once said that I found I had been wrong in supposing anything ever could be agreed to, and that those noble Lords, who were taking the objections, had been right in stating that there ought to be no Report, except merely laying the evidence upon the Table of the House. But I added, that I should endeavour to supply the defect by a motion respecting the pardons of the Viceroy, which, in my estimation, was the most important subject of all, by far; and that as I had been driven, by the supporters of the Irish Government, from what I deemed absolutely necessary to the discharge of my duty, I should take the only course left for us, by moving your Lordships; and I pledged myself to make you masters of at least, one branch of the evidence This pledge I have to day redeemed. That I took any party unprepared, I, therefore, utterly deny. The noble Marquess had the evidence daily sent to him, and nobody can doubt that he read it. At any rate, he has read it fully before this night; and I expressly said from the first, that I should confine myself to the thirty or forty pages of the evidence which bear upon the administration of justice. These could be read easily in two hours 1373 of time. I put it to your Lordships, whether I have not performed my promise?—whether I have travelled one hair's breadth beyond that portion of the case? But I must now go further. I ask your Lordships, whether I have not had my prediction fulfilled as to the course the debate would take? and whether all the opposite prophecies are not now falsified by the event? Then it is said that I have been unjust towards Sir M. O'Loghlen, and that I have violated my own doctrine—namely, that the judges should be held up to public respect, and not to public censure. But, then, my reference to Sir M. O'Loghlen was not in his judicial character, but as Attorney-general, in the advice he gave at the Castle, and the conduct he held when public prosecutor. As to the case of Gahan, I will only say, that it has been totally misrepresented; but I will not go into it again. Every one who reads the evidence must agree with me. The nonsense that is told about Judge Moore having applied for Conner's pardon, who was concerned in the same desperate fray, is really below contempt. First, he never applied at all, but waited till the Government asked him, upon some Member of Parliament applying. Next, he reported, not for a pardon, but for a year's imprisonment. Again: he had sentenced him, on the jury convicting, to the greatest punishment the law allows. Fourthly, he had reflected for months on that verdict and that sentence, and never gone beyond doubting on the case. Fifthly, the ground and the only ground of his doubt was removed by the second trial, when the sobriety of the policemen was directly put in issue. Lastly, the defence of Connors was totally different from that of Gahan—being a question of identity—so that nothing could be more easy than to believe the one guilty, although the other had been acquitted. They who argue thus, really are in as perverse a state of mind, and as hopeless an ignorance of the case, as ever Sir M. O'Loghlen was in, either when he took upon him to sit in judgment, by way of appeal from Chief Justice Doherty, who had tried the cause, or when he came before the Committee to defend his judgment and explain its grounds. Greater ignorance of a case it is unnecessary, and it would be impossible, to conceive. With respect to that right hon. and learned Person, my noble and learned Friend 1374 (Lord Plunkett) needed not give himself the trouble of defending him at length—not even of eulogising his general conduct, still less of praising his judicial merits. I am no adversary of the Master of the Rolls, in his character at the bar; and of his conduct on the bench I never said one word. I join in the respect usually paid to him as his due in this high capacity. I did not even say a word of his demeanour as a witness. But, surely, the most ludicrous of all absurdities is, to hold an Attorney-general,—a public prosecutor,—a partisan at the bar or in the senate, or on the hustings,—exempt from all censure,—nay, from all comment,—the instant he is removed to the bench. My whole remarks applied to him while in his lower sphere,—in the mere human stage of his existence. He is now removed to that exalted state, among the blessed spirits who adorn the bench; he is above all censure of mine, as long as he falls not from those ethereal regions. But I only referred to the acts of his former state,—the things done in the body,—when he sojourned among us, clothed with the infirmities of our limited nature, and was amenable, like ourselves, to the bar of public opinion, and could be questioned and blamed without detriment to the sacred purity of the ermine that now clothes him and covers him from all attack. With respect to the composition of juries, I quite agree that religious opinions ought not to be the ground of setting jurors aside; but, certainly, persons who may, the day before a trial, exhibit at a tumultuous public meeting great political violence, and bear a forward part in exciting the people to acts of lawless violence, ought not to be put upon the jury which is to try that very offence. My noble Friend (Lord Hatherton), who fairly and candidly gave up the noble Marquess's case upon the important point of the gaol deliveries, and admitted that nothing could be said for this part of his proceedings, stickled, nevertheless, much for the Attorney-general's instructions respecting juries. He could say nothing as to their uncertainty and their diversity,—nothing for the Attorney-general's (O'Loghlen's) failure in explaining them,—nothing for the construction attempted to be put upon them;—but he contended that they had done no harm; and that only one witness, whom he seemed to charge with prejudice, had been found to 1375 disprove them. Really, this is one of the many statements of my noble Friend, which are at considerable variance with the facts in the evidence, and for which I am somewhat at a loss to account. Only one witness disapprove? Only one person say that juries have been the worse for the instructions, or for the various meanings given to them? Really it is just the reverse;—all but one have condemned them; all but one have complained loudly of the juries being much worse constituted: and almost all these complaints come from men in the employment of the Government, and even employed in the Attorney-general's own peculiar department. I will not fatigue your Lordships with reading over the evidence at this late hour; but I must run over the heads of it, and refer to the substance and to the pages. Mr. Hatton (p. 242. to 245.) swears that the juries are worse since the instructions of Sir M. O'Loghlen; that Protestants have no longer any confidence in them; that the inferior class of jurors, now serving, are liable to be influenced by threats when attending markets; that convictions are more difficult to be obtained. Captain Despard (p. 276. to 278.) says, that formerly, too many jurors were set aside; but, now, the error is too far the other way; that connections of the prisoners, and publicans, get on juries now; that the latter class cannot afford to act honestly, though not intentionally dishonest; and that, where a popular feeling exists, there is not any fair chance for a prosecution. Mr. Rowan (p. 156, to 188,) swears that the not setting aside has a very injurious effect; that a lower class of jurors serve than before; and that persons connected with the offence may now be on the jury, and prevent a conviction. Mr. May and Mr. Plunkett (p. 379. and 390.) both swear that the Crown's power, if discreetly used, has a useful operation. Mr. Hamilton (p. 706,) swears that, in consequence of the instructions in party cases, there are, generally speaking, no convictions at all, where there ought to be. Mr. Seed swears (p. 302.) that though, in ordinary cases, there be no objection to the new system, yet that the old is preferable where party feeling or intimidation exists; and he explains how perniciously the new operates against the due administration of justice. Mr. Finn (p. 814.) says, he is sure the new 1376 plan has proved injurious to the administration of justice. Mr. Mackinnon, another Crown solicitor (p. 660.) gives the same unfavourable account of the system's operation. And these nine witnesses are the single person who my noble Friend has actually had the boldness to assert was the only witness to disapprove of the Attorney-general's instructions! But nothing in this debate has astonished me so much as my noble Friend at the head of the Government (Lord Melbourne) complaining of the time at which this motion has been brought forward. Why, I gave above a fortnight's notice; and there were only forty pages of the evidence to read. I beg the House to observe how closely I have kept to those forty pages,—referring to not one tittle of the evidence beyond them. I beg the House, also, to observe how completely all the predictions have been falsified by the event, of those who confidently foretold the impossibility of confining this debate to its proper object,—the administration of justice. I also must claim to be regarded and followed as a safe guide, when it is remarked how entirely my prophecy has now been fulfilled. I was told that the whole matter would be gone into, and that it was quite impossible to keep the debate within its proper bounds. I said I was quite confident I should be able to do so; and that no one topic would be touched on or alluded to, except the one subject which I was to bring forward. Well, the debate is now over; and all the speeches have been heard, save the small residue of this my reply; and I ask if any one allusion has been made,—if any one word has been uttered regarding any one title of the evidence,—except what related to the administration of justice? Why, then, were not two or three weeks amply sufficient to prepare all men for this discussion? What right can my noble Friend (Lord Melbourne) have to complain of the question being hurried on? What earthly ground can there be for his assertion that he could not read the evidence? Two, at most three, hours were all that he required to peruse it; and he now comes down, after two or three weeks, to tell us that he has not read a word of it,—knows nothing about it,—and cannot tell whether the noble Marquess be guilty or not. From this, I naturally expected him to conclude his speech by asking for more time, or moving for an adjourn- 1377 ment of the debate. No such thing. He moved the previous question, which is an admission—not that he is ignorant of its merits, but that he has considered it, and, in some way or other, made up his mind upon it;—that he feels he cannot resist the motion; but that he also feels it an inconvenient one for him, and therefore wishes the question may not be put upon it. To be sure, if the argument of my noble Friend were allowed to prevail, nothing could well be imagined more comfortable for the Government,—and for any Government. They have only to say,—"we have not considered the case, therefore, do you resolve not to pronounce a sentence upon us." I will answer for it, on these terms, no unpleasant case would ever be considered by the Government, and no inconvenient vote would ever be passed by Parliament. The ignorance would not be a pretence—but it would be real; and the advantage resulting from it would be a reality too. But my noble Friend charges me with violence—with acrimony—with undue severity against the noble Marquess. No man is a judge of the exact force and weight of his own expressions. I can only say that I had no intention to be violent or severe. I know that I omitted some heads of attack altogether,—heads much dwelt upon by members of the committee during our investigation. I know, too, that not one word escaped me which had not a close connection with the subject,—the administration of justice; and this I well know,—that I abstained from numberless topics, numberless illustrations, which would have been used by me, had another person's conduct been the subject of debate. But, it seems, I have, elsewhere, praised the noble Marquess; and therefore it is unfair in me, and unfriendly, to blame him here. That the former praise may have been very friendly, I do not deny; but that this circumstance renders the present blame less amicable in its aspect, I do not clearly understand. My noble Friend cites a note, published as he says, under my sanction, and applied to a speech delivered in 1823, on the administration of justice in Ireland; and he seems, by his reference, to insinuate that there is some inconsistency in my now disapproving of him, whose conduct I approved above a year ago. There is not the shadow of inconsistency, or anything like it, in this proceeding, even if you take into the ac- 1378 count the panegyric bestowed in the note—and very sincerely bestowed—on the private and literary character of the noble Marquess,—a panegyric read by my noble Friend with a mingled sneer at the author of the praise and its object. My noble Friend really could not resist this, his besetting sin, of constantly holding cheap all men and almost all things. That is his way. Also, it is his way to bring out roundly, and sometimes roughly too, whatever passes through his mind. This it is, among other and higher qualities, that makes him so agreeable a debater here, and so delightful a companion elsewhere. The humour is his own, and it is racy and pungent. No respecter of subjects or of persons, out it all comes—no matter who is by, or whom it hurts. He gives mirth, and he shares it too, largely enough. It is generally one word for his audience, and two for himself; one laugh from them, and two from himself. So on he rolls, with his lively and careless speech, or his yet livelier and more careless conversation. Good sense and good humour are always at the bottom. No gall—not a particle of self-conceit—is anywhere to be found. If other men are little respected, he is himself never set up in any invidious contrast, but seems to be as little thought of as any of those he handles. Some startling paradox, to pass for profound and sagacious originality—some sweeping misanthropy, to show deep and penetrating knowledge of human nature—nothing can be more agreeable, though, very often, nothing can be less correct. And so it was tonight. The praise of his noble Friend, which he laughed so much at, was very sincerely given by me, and I still think very well deserved by him. I have constantly repeated it behind his back, and in quarters where the echo of any sound of it never could reach his ear. I defy all the persons who have ever heard me speak of him, up to the hour in which I now address your Lordships—and they are not a few—I defy them all to say upon what occasion I have ever said a twentieth part as much against him as I have felt compelled to do this day; nay, I defy them to say what I have ever uttered, that was not kind and friendly; and whether I have not uniformly confined my charges against him to his conduct respecting justice and mercy, and on that, limited my 1379 blame to an amiable and a venial indiscretion. I suspect the loud bawlers in his praise could not safely make the same searching and broad appeal. But what is the supposed inconsistency on which my noble Friend remarks? The subject of praise was Lord Wellesley and Lord Anglesea holding even the balance between the contending sects—that is to say, giving the Catholics their share of promotion fairly with the Protestants. The noble Marquess is then commended for treading in their steps. Have I said a word to-day that is at variance with that eulogy? Surely my noble Friend cannot mean to rely on so very poor a quibble, as that the phrase "holding even the balance" implies the giving no preference to the Catholics, and that yet to-day, we accuse the noble Marquess of trusting to Romish priests against Protestants;—for the whole passage must be taken together, and then it is perfectly manifest that the whole subject of panegyric is, that the three successive Lords-lieutenants had all promoted Roman Catholics more than their predecessors ever did. But I will not stop to defend myself against this childish argument, which only shows the extremity of the case now on its defence. Suppose I had changed my opinion of the noble Marquess's administration since June, 1838. Has the evidence of June, 1839, brought no new facts to light? Was Gahan's case—was Slye's case—were the details of the gaol deliveries—was the treatment of the judges—was the appeal to the gaolers—known in 1838, when the note appeared? Surely a more absurd, nay, a more desperate argument than this never yet was brought to prop up a hopeless case. But from this topic, my noble Friend, in a luckless hour, passed to a still worse, and that really did astound me. He sneered at the course of my public conduct; and indicated his disposition to withhold from it the praise of consistency, which I had openly claimed lay a reference to thirty years' public life and upwards. Now, I repeat my challenge, to which I am compelled by the doubts which my noble Friend, without any one attempt at particularising, but wrapping himself up in mere vague and general insinuations, has chosen to ventilate. I defy him, or any man, to show the single instance in which my conduct has varied upon any one of the great subjects which 1380 divide statesmen, and agitate the world at large. I see around me, in all directions, abundant instances of men who have changed their course upon many subjects, and who have connected themselves with many parties in succession. I speak of them with all respect; their conduct and their changes have been, doubtless, directed by pure public principles, and never guided by personal motives. Nor, while I acquit them, do I now, nor did I when I last addressed your Lordships, claim any merit to myself for what I expressly called, and what I really do think, in the various course of human affairs, a piece of good fortune, much rather than any desert. But the fact is undeniable, that, upon all the great questions which divide men's opinions, I have, ever since 1810, when I entered Parliament at an early age, been fortunate enough to hold precisely the same course throughout this long interval of time, without any exception or variation whatever. I have consistently supported reform, the abolition of the slave trade and slavery, the Catholic question, the reduction of expenditure, the resistance of oppression, the extirpation of abuses, the reformation of the law, the limitation of the executive power. Moreover, I have uniformly adhered to one political party; and if, at the end of this long period, I have found myself under the painful necessity of separating from my former political friends, it has been, not on personal but public grounds—it has been—it has notoriously been, not because I changed, but because they have changed their course. When out of the Government in 1835, I zealously supported them; in 1836, I abstained from attendance, that I might not embarrass them; in 1837, I supported them on all but one question, when their conduct was a violation of liberty. But, in 1838, when they abandoned their reform principles, and carried further than ever the unconstitutional government of the colonies; and still more in 1839, when they have utterly forgotten the very name, as well as the nature, of Whigs, and consented to stand upon a mere court intrigue—a mere bedchamber quarrel—dagainst Parliament and against the people, then, of course, my opposition became habitual, and I heartily desired the end of their reign. I will not deny that I desired their fall, when I saw them—with astonishment saw them—stand on the most Tory ground—ground ever most bit- 1381 terly assailed by them in their better days—for the Tories always had the decency to cover over the nakedness of their courtly propensities with some rag of public principle, and spoke of danger to the Church and the other institutions, when they really meant risk of the King being thwarted, and their own power subverted. But these Whig Ministers, under my noble Friend, stripping off all decent covering, without one rag of public principle of any kind, stand before the country stark naked, as mere courtiers—mere seekers of royal favour; and do not utter a single whisper to show that they have a single principle in their contemplation, save the securing a continuance of their places by making themselves subservient creatures of the palace. To leave such guides, and such associates, may be very painful, from old habits and connections; but surely it became absolutely necessary to all who would not join them in leaving their former principles. My Lords, I grieve to have so long detained you at so unseasonable an hour; and I have only now to recommend these resolutions to your immediate adoption.
§ Their Lordships divided:—Contents 86; Not-Contents 52—Majority 34.1383
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|Bp. Carlisle||Bp. Chichester|
|Bp. Gloucester||Bp. Hereford|
§ Against the Resolutions the following Protest was entered.
§ "1st. Because the two last resolutions contain abstract propositions relating to the principles on which a power, vested by the constitution in the Crown, should hereafter be exercised. And, although it be the undoubted privilege of the hereditary advisers of the Crown humbly to suggest to the Throne the exercise of such royal prerogative in special cases, where, according to their judgment, such exercise is necessary or expedient, as well as on the other hand to offer their advice against any exercise thereof which appears to them hazardous or injurious to the public interests, yet we are not aware that it has been usual, or can be constitutional, or becoming in this House, spontaneously and unnecessarily to lay down certain abstract rules for the guidance of the Crown in the use of powers which are placed by the constitution at its discretion, and the proper exercise of which may depend upon circumstances which it is impossible for us to foresee.
§ "Such proceedings must have a tendency to fetter the prerogative and limit the discretion which the law has entrusted to the prince and his responsible ministers, and the impropriety of such a course appears more manifest, inasmuch as it is calculated to give countenance to a suspicion that the Lords of Parliament, not contented with the high functions assigned to them by the constitution of the country, are desirous of obtaining a share in other prerogatives which it has placed elsewhere, though it has subjected the exercise of them to responsibility.
§ "2. Because the power of pardon, which Mr. Justice Blackstone emphatically describes to be "the most personal and the most his own"* of all the prerogatives of the King, appears to us the last which can invite or justify the interposition of our house of Parliament with new regulations and restrictions on its exercise.1384
§ "The obligation attempted to be imposed by these resolutions, namely, the necessity of previous consultation with the judge, would in many possible, and in some not improbable instances, be at variance both with the theory on which the prerogative of mercy is preserved in our constitution, and with the duties which the judicial character supposes in our judges. The best writers on the principles of general law, as well as the ablest commentators on our own, have justified the prerogative of mercy inherent in the Crown, on the acknowledged maxim that "The power of judging and pardoning a criminal should never centre in one and the same person."† Yet the practical effect, if any, of these resolutions, would be, virtually to transfer from the prince and his responsible advisers; to the judge who tried, the power of pardoning the criminals he had condemned, thereby, in the strong language of the above cited authorities, "obliging him to contradict himself, to make and unmake his decisions; tending to confound all ideas of right among the mass of the people, and rendering it difficult to tell whether a prisoner was discharged for his innocence, or pardoned through favour or compassion."‡
§ "3. Because, although a judge can unquestionably afford the best and most satisfactory testimony to all the circumstances of doubt or extenuation which have appeared on the trial, and, consequently, should, wherever mercy is extended on such considerations, be previously informed and chiefly consulted, yet we apprehend that there are many and strong motives to mercy, moral, prudential, and political, on which persons officially entrusted with the strict interpretation and application of the law are far from being the most competent judges or the safest advisers. Services rendered by the prisoner before or subsequent to trial, discoveries and disclosures of past delinquencies, or of designs actually on foot, proofs, and consequences of his entire and sincere repentance, together with various other reasons of state and policy, may all furnish legitimate grounds for the exercise of mercy as long as our constitution preserves inviolate to the Crown that godlike attribute, and yet the consideration of such circumstances are surely peculiarly unfitted, and, perhaps, even unwholesome, for minds engaged in the stern and impartial discharge of the duties required in a criminal judge.
§ *Blackstone, Vol. IV., Commentaries. It is termed by other great legal authorities, "One of the most distinguished features of a monarch;" and elsewhere, "The most amiable prerogative of the Crown, and inseparably incident to it."
§ † Blackstone, Vol. IV.
§ ‡President Montesquieu on Blackstone, Vol. IV,1385
|Stanley of Alderley||Mostyn|
|Stuart de Decies||Hatherton|