Lords Sitting of 22 March 1839

MINUTES.
Petitions presented. By the Earl of HADDINGTON, from several places, for Church Extension in Scotland.—By Lord BROUGHAM, from a number of places, against the Beer-laws; from five places, for the Repeal of the Corn-laws; from Maryford for a Uniform Penny Postage; from Inverkeithing, against any further Endowment to the Church of Scotland; from Wellington, for some plan of National Education.—By the Earl of SHAFTESBURY, from Greenwood, against any plan of National Education not founded on the principles of the Established Church.

GOVERNMENT OF IRELAND—EXPLANATION.
The Marquess of Normanbyseeing the noble Earl (Earl Roden) in his place, who had last night carried a motion for a Committee to inquire into the state of Ireland, and who had published a list of the Committee in which his (the Marquess of Normanby's) name appeared, wished to say with reference to that list that he was anxious for the noble Earl to name another person in his stead, as he did not think that it would be his duty or that it would be desirable in any way that he should take part in that inquiry. Having stated this, he would correct a mistake as to a matter of fact made by a noble and learned Lord near him (Lord Brougham) in the debate of last night. As to the fact he would not have dissented from the statement of the noble and learned Lord unless he had felt pretty certain of the grounds on which he had proceeded, and if he had not been aware that the noble and learned Lord possessed a knowledge of certain facts at a certain period. He understood the noble and learned Lord to say that when the motion of the noble Earl opposite was made in 1837, relative to his tour in Ireland in 1836, he was not aware of certain circumstances and certain proceedings, which had since come to his knowledge, or that being aware of the circumstances, yet that it appeared everything was done with the sanction of a judge, and that, therefore, they were not particularly adverted to; and that, therefore, the noble and learned Lord had been saved the pain of making those

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observations, which if the circumstances had then been brought prominently forward, he should have felt himself called upon to make. First, then, as to the knowledge of the noble and learned Lord, for which he had been indebted to the assistance of his new ally the noble Marquess (the Marquess of Westmeath), and as to his acquaintance with the facts of the case at the time. The noble Marquess, as he understood, had said that the return of these cases were not then on the Table of the House. That was the nature of the assistance which the noble and learned Lord's new ally was prepared to give. Now, it was rather singular that it was the noble Marquess who had called the noble and learned Lord's attention to these cases, of which he had last night stated he had no recollection whatever; and this not upon the occasion referred to, but five months before, and within ten months after the events themselves had taken place. This would appear by the speeches delivered by the noble Lords themselves in the debates on the two motions in July and in November of the following year:—In the discussion in the House of Lords, on the 11th of July, 1837, when the conduct of the Irish government was considered, the Marquess of Westmeath "could not avoid saying a few words upon one part of the case, though it had on more than one occasion been previously discussed in that House: he meant the exercise of the royal prerogative of mercy. He begged to read the number of pardons of all kinds given by the noble Earl, and the offences of the parties. There were twenty-seven persons under sentence of death discharged—of three of these the day of execution was fixed—two cases of murder, and one of conspiracy to murder. He was well acquainted with the latter case, as it happened in a county which he knew well. It was the case of John Lynch, who suffered two years' imprisonment. Of the twenty-seven under sentence of death, three were for highway robbery, ten for abduction, six for rape, four for robbery, and one for malicious assault. For not one of these was bail taken on their discharge, except the man for malicious assault. There were also discharged thirty-three prisoners under sentence of transportation for life, and from only two of them was bail required. Two were discharged under sentence of fourteen years' transportation, but no bail given. Sixty-three were discharged under sentence of seven
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years—bail taken from six. For other and minor offences the numbers discharged were 900—making in all 1,086 cases; and out of these bail was taken in only forty-one. He must say, if the Government allowed that misjudging Earl to return to Ireland as the head of the Government there, they would be seriously tampering with the peace and good order of society in it." In reply to this statement, he then had told the noble Marquess, "that he had confounded the two sorts of cases—the minor cases, in which the parties were discharged on certificates; and the graver, which were always referred to the judges. He said that the noble Marquess had put into his returns not only all the persons discharged upon the recommendation of the inspectors, but also all those discharged on the recommendation of the judges—on medical certificates, and for other reasons. The noble Marquess had gone through a long list of persons improperly liberated, who had been convicted for murders and aggravated assaults. He would repeat, what he had before stated, that none charged with grave and serious offences had been liberated, except upon medical certificates, without reference to the authorities who presided at the trials. He believed that it was impossible for the power of language to have gone further for the purpose of misrepresentation, than it had on this subject. Much must always depend upon the peculiar circumstances of each case; and it was only with reference to them that a proper judgment was attainable. He could say that of all the prisoners discharged on the recommendation of the inspectors, only nineteen had been recommitted, and those for minor offences, such as throwing stories, &c." Lord Brougham took part in the debate, and said distinctly: I beg to remind your Lordships, that the gravest of all the charges preferred against my Friend, the Lord Lieutenant of Ireland is, that of releasing from prison an individual who was lying there, ordered for execution, under sentence of the judges. That charge is disposed of for ever. It turns out that all this was done at the recommendation of the learned judge who tried the man, and who, on consideration, was of opinion that the conviction was wrong, and could not stand. …. In reply to the noble Marquess, my noble Friend (Lord Mulgrave) has entered into a full, ample, and satisfactory defence of his own conduct. …. To the charges brought against my noble Friend of the state of crime in

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1835 and 1836, he has, by anticipation, given a satisfactory answer, by pointing to the state of crime in 1837. … The Lord Lieutenant of Ireland has conceived that with a judicious system of lenity;" so that the noble and learned Lord, by his own words, showed that he was alluding to precisely the same transactions as were mentioned last night. The noble and learned Lord continued: 'With an appeal to the good feeling and hearts of the people—with a wish to make his Government popular, it is necessary to exhibit a firm determination to see the laws executed, and to provide sufficient means for fulfilling the objects in the completest way.'" That was the noble and learned Lord's statement on the accusation, which had been made on precisely the same cases; the noble and learned Lord had then said that there was a full defence, and yet allusion was made that night to the same circumstances precisely as had been referred to last night. All these cases were included in the returns of 1836, and he thought that he had established the fact of the noble and learned Lord's knowledge at the time of the former motion. Next, with respect to the second question, the noble and learned Lord's statement, that the matter was not in 1837 brought prominently forward. The noble and learned Lord's forbearance had been extended, till he had ceased to administer the government of Ireland; but now, after three years had elapsed, the noble and learned Lord was tardily urged forward by an irresistible sense of public duty to condemn acts, which were not merely incidentally mentioned in the former debates, but which were urged prominently. In the House of Lords on 27th November, 1838, in the debate on the state of Ireland, the Earl of Roden said, "The great and ultimate object of the disturbances in Ireland was the destruction of Protestant life and property, and the extermination of the Protestant religion. Those things he would prove by the papers for which he meant to move, and when they were laid before their Lordships, if submitted to a committee, he thought there would be no difference of opinion with regard to the state of Ireland." Lord Donoughmore said that "crime in Ireland was on the increase. At the same time he begged to say he made no charge against the noble Earl (Earl Mulgrave) of not suppressing that which did exist, or of causing that increase by neglecting to carry the common law of the land vigorously and strenuously into
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execution," and the Duke of Wellington made specific reference to it, when he said that "the noble Earl (Earl Mulgrave) had gone into along argument to show that there had been an increased number of committals in proportion to the number of offences, and an increased number of convictions in proportion to the number of committals. He admitted and gave the noble Earl every credit for that fact … But he begged to call the attention of the House to this fact. The noble Earl made his tour through Ireland, and crime having thus increased he thought proper to exercise the royal prerogative of mercy to the extent of pardoning not less than about 1,300 persons. … He would ask the noble Earl had he carried the law into execution against persons whom the law had justly condemned? Did he ever pardon people who ought to have the law carried into execution upon them? Had there not been some little seeking of popularity besides that which ought to result from the performance of the great duties and judicial functions he was called on to execute?" He then said that, "with regard to the exercise of the prerogative of mercy he would say (in round numbers) that out of 800 memorials which had been examined by him, about one-half had been decided unfavourably to the prisoner, after reference to the judge or without it, and only 100 in favour of the prisoners without reference to the judge, but on the authority of medical or other certificates. The only class towards whom leniency had been shown in a wholesale way, were persons convicted of joining Orange processions." These circumstances were then brought prominently forward, and he was actually congratulated by the noble and learned Lord. [Lord Brougham: I congratulated myself.] Undoubtedly the noble and learned Lord congratulated himself also that no prominent mention was made of these circumstances, for he had been spared the task of making observations which would otherwise have been forced upon him. After this the noble and learned Lord stated that if the circumstances had been mentioned, he had not attended to them, or he might have been asleep. The noble and learned Lord might or might not have been asleep.
Lord Brougham: If, my Lords, I said that I was asleep I apprehend that I might have been so; but not that I had not been asleep.
The Marquess of Normanby: If the

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noble and learned Lord said that he was asleep, no doubt he was so; but in that very debate the noble and learned Lord again taking part in the debate, said, that "the noble Earl opposite (Donoughmore) had allowed his (Lord Brougham's) noble Friend, (Lord Mulgrave) had done every thing in his power to enforce the common law of the land:' so that the noble and learned Lord attended both to the speaker and to the subject of the debate. He went on to say that he had been lavish of the power confided to him; that he had sent constables to the disturbed districts; had commissioned magistrates; in short, that all had been done by his noble Friend which man could do to enforce the common law of the land. … He had no fears for his noble Friend, for he was persuaded that he would conduct his Government in future as he had hitherto done, and that his policy would continue as creditable to himself as beneficial to Ireland." He thought it unnecessary to say one word in addition to these details, and it was on the recollection of these statements that he ventured to interpose last night. The noble and learned Lord said last night that if he had attended more to the debate he might have heard the reference, but the subject was noticed, especially by the Duke of Wellington; and he thought that any thing falling from the noble Duke was of importance, and that any thing that he touched upon at any length, might be considered as forming a prominent part in the debate. In his opinion the noble and learned Lord, throughout his whole speech last night, proceeded on the assumption that the prisoners were released only on occasion of a triumphant progress, and that it was a part of his system of increasing his popularity, to liberate certain prisoners; but this point he did explain, though doubtless the noble and learned Lord was asleep—that in a particular district finding a certain train of circumstances, he had, on the recommendation of the assistant barrister, thought that the rigours of the law might be relaxed, and he had exercised the royal prerogative of mercy. In the course of his visits to other parts of the country where he found the same circumstances, he did apply the same principle, and he did thus towards prisoners thus recommended, and who were near the end of their sentences, grant like lenity. The House and the noble and learned Lord were very indig-
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nant at this; but with all deference for the opinion of the noble and learned Lord he could not agree that no prisoner should be discharged, unless in every other part of Ireland prisoners similarly situated should be also liberated. If, however, the noble and learned Lord meant that he ought not on his visit to any town to apply principles which he would not have otherwise put into operation, he perfectly agreed with the noble Lord. His noble and learned Friend behind him (Lord Plunket) would bear him out in saying that he was convinced he ought not to exercise the royal prerogative of mercy in a different manner in the one case than in the other; and if no recommendations had been made, he had told the parties on his visit that if they would mention any case worthy of the royal clemency, he would make the best inquiries he could in the short time allowed him of the local magistrates and of the inspectors, and act on their advice. He agreed, therefore, and he had acted on the opinion that because he had visited particular spots, they ought to receive no greater indulgence than if he had not visited them. He had made this explanation with considerable pain; friendships of twenty years standing were not broken lightly; the feelings he entertained with respect to politics differed from the opinion of many noble Lords whom he had always called his friends; indeed, he had the honour to possess friends on every side of the House, but he felt bound to say that he thought the noble and learned Lord had not used in this matter that sincerity with which he ought to have acted.
Lord Broughamfelt very sincere and unfeigned pain at the last sentence which had fallen from the noble Marquess, that in consequence of what had passed he had withdrawn his friendship from him. To him it was matter of great grief, and he most solemnly, frankly, and sincerely assured their Lordships that he had heard the last sentence with great sorrow. He felt some consolation, however, in thinking, that he had done nothing to forfeit his claim to the noble Marquess's friendship. The noble Marquess chose to talk lightly of this matter, and in a manner little suited to the importance, and he might add, the solemnity of the occasion; but to him it was no light matter, for he had been acting strictly in accordance with his feelings, and he had been impelled to the course he had taken in the

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discharge of his duty. He would appeal to those who, for the last fifteen months, had known his feelings, whether he had expressed more than he felt. He might have said nothing, and he might have kept his peace. He found that he had made a mistake, and he congratulated himself last night, that for fifteen months he had not been called upon to notice it. Last night, however, was not the first time he had, in the discharge of his public duty, been forced to criticise, to comment upon, and even to attack the government of the noble Marquess. The noble Marquess talked as if something had come over him last night; but was there not any previous attack? Why, what had become of the motion respecting the appointments of the sheriffs in Ireland? he had fought that strongly, not last night, and not lately, but a year ago. Having lived on intimate terms with the noble Lord for many years, it was painful for him to reflect that their intimacy should be broken off at once; he trusted not for ever. After the speech he had made in the month of June all intimacy had been broken off for some weeks—they did not even speak. Why did he revert to these painful circumstances? Because he hoped that the momentary feeling, that the temporary prejudice under which the noble Marquess laboured, would pass from his mind; for the noble Marquess's mind had been oppressed by prejudice when he felt that be could not associate with him for several weeks. But with that generosity which was the characteristic of generous minds, the noble Marquess had overcome his feeling for
"Inimicitiæ mortales, amicitiæ sempiternæ."
And he felt that the present difference would be put an end to, and he hoped that nothing of feeling would last longer now than it did upon the late occasion. With respect to the facts, he must beg pardon of their Lordships for his want of memory, and for his tendency to sleep; he frequently had to thank noble Lords opposite, and, perhaps, as frequently the noble Lords near him, for helping him to this state. He did not get up at two or three o'clock in the afternoon, but he had been up ever since six o'clock in the morning; he had been engaged in judicial business during the day with the noble and learned Lord on the woolsack, who had, doubtless, also slept last night,
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for no debate, except indeed a debate on the Corn-laws, could be duller. He had been in the House from ten in the morning till ten at night. He did not think, however, that he had been long asleep before he was awoken by the appeal of the noble Marquess. As to the facts that had passed in 1837, he had not in the end of November taken the same part that he did in July. He was in July satisfied that the Judge had been applied to, and he thought that he had used even stronger language than had been quoted; he believed that he had said, there was evidence of the discharge resulting from the humane feeling of the noble Marquess, and that he had triumphantly vindicated himself in his defence that night. But of all that took place in 1836, when he was absent from the House, and took little part in public affairs, he was very ignorant. It was during that period that the noble Marquess made his tour out of which these circumstances arose, and he declared, that the words "gaol delivery," or "gaol delivery tour," had never fallen on his ears till two days after the debate in which he had taken part. He had been referred by the noble Marquess opposite (Marquess of Westmeath) to some papers or statements as to the case alluded to, and he had found that the case assumed a very different aspect to what it bore from the casual manner in which it was mentioned on the first night. He had hence been led to believe, that other cases might be as bad as the one which from the subsequent information he had better understood. He felt, therefore, that he might have committed himself further than he ought to have done in his position. Nothing was more entirely consistent than these facts with the statement he had made, that though he had taken this part in July, he was glad that the same question was not pressed in the November following. As to the reference made to this part of the question by the noble Duke, it did not appear, even from the extract which the noble Marquess had read, that he had made it a prominent part in the former debate; but from what they had heard last night, the facts on this part of the case were made the foundation of the motion on which the House was to determine whether they would interfere with a high prerogative, and inquire how mercy had been exercised by the representative of

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the Crown in Ireland. What, however, was the accusation that the noble Marquess made against him? That a year and a half ago he bad made for him a defence which he did not now make. A stranger charge he had never heard. It was ridiculous. The complaint of the noble Marquess was, that he (Lord Brougham) attacked him last night, but did not attack him a year and a-half ago. Now what he said last night was this: that the mere circumstance of the noble Marquess making a progress through Ireland, was no ground whatever for discharging prisoners from the gaols of the country; the barbarous practice of letting loose prisoners during a royal progress having been abolished ever since the time of the Plantagenets. When George 4th went to Edinburgh and Dublin, being the first time that any King of the Brunswick line had ever visited those places, or that a British King had ever visited Edinburgh since the Union, did any mortal either in Dublin or Edinburgh ever dream of letting out prisoners from the prisons of Dublin and not from those of Cork, or from the prisons of Edinburgh, and not from those of Aberdeen? What he had, therefore, said, was, that the mere circumstance of the Viceroy of Ireland going to Limerick or to Cashel, was no reason for liberating prisoners from the gaols of those places. It was as painful to him as it could possibly have been to the noble Marquess to make such observations, but he was reluctantly compelled to defend himself.
The Marquess of Westmeathconcurred with the noble and learned Lord, as to the nature of the return which bad been produced. At the time he moved for certain papers, there were no returns before their Lordships relating to these transactions, and the facts which he then stated were taken from a return laid before the House of Commons. The bad effects of these enlargements of convicted criminals had now appeared, and the noble and learned Lord having paid attention to the statements which had been made, and having observed that the effect of the policy pursued by the Government in Ireland had been to dissolve society into its elements, it was very natural that the noble and learned Lord should have taken the course which he did yesterday evening.
The Earl of Rodenhad felt it his duty
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to place the name of the Marquess of Normanby on the Committee, and still hoped that the noble Marquess would allow his name to remain on it.
The Marquess of Normanbybegged to state that his objection continued.
On the motion of the Earl of Roden the name of the Duke of Richmond was added to the Committee.