§ The Earl of Charleville
in rising to make the motion of which he had given notice, for a copy of the criminal calendar at the Lent assizes, 1841, for the King's County; also, for a copy of the rule of court on the said calendar—said, that he could not call their Lordships' attention to the motion he was about to offer, and the questions involved in it, without expressing extreme regret at being obliged to do so; and it was only after the matter had received his most deep and anxious consideration that he determined to take this course. After communicating with many friends in various parts of Ireland, and with friends whom he had thought proper to consult in this country, he only felt more strongly that it was his duty to call the attention of their Lordships to that part of the administration of criminal justice in Ireland which was affected by the circumstance of the Crown having of late years given up the practice, which had always been observed for many years previously, of setting aside parties who were placed (c)n panels, and whom the Crown might think not to be the proper parties to be placed on a jury when the action was at the suit of the Crown. But however painful to his feelings it might be to have to address their Lordships on such a subject, when he found, that to bring the matter forward was a duty which he owed to the peaceable, the loyal, and the well-disposed in Ireland, and that he must lose no time in advancing to expose the system of which that part of the population so much complained, and, in his opinion, justly complained—he felt that he ought not to shrink from his duty, but forthwith to call the attention of the House and the attention of her Majesty's Ministers, to this momentous subject. The King's County, which for very many years formerly, had enjoyed peace and tranquillity, had of late become the scene of frequent outrage. How was this? He knew of no causes of a local nature to have brought about the change. He could not account, except by reference to the change of system on the part of the Crown of which he had spoken, why a district which had enjoyed nothing but peace and tranquillity should of late 851 have become remarkable for outrage, without any local causes. This, however, was the case of the King's County. Within four years there had occurred there the murder of Mr. Frayer—the attempt to murder Mr. Stone—the attempt to murder Mr. Drought—the attempt to murder the Rev. Mr. Dunn—the attempt to murder Mrs. Smith—the murder of the Earl of Norbury—the attempt to murder Mr. Synge—the attempt to murder Mr. Biddulph—the attempt to murder the Rev. Mr. Gresham, the two last gentlemen being magistrates for the county. With the exception of the case of Mr. Biddulph, no information could be got by the magistrates to enable them to bring any one to trial, or to apprehend any of those who were the guilty perpetrators of these crimes. Documents on their Lordships' Table would sufficiently establish the circumstances of most of these cases, and he should not go into them in detail, but should confine himself to the more recent case of Mr. Biddulph, because in that case certain parties were brought to trial. That this case was of a particular and peculiar kind, even among the outrages committed in that county, their Lordships might see in the answer of the Lords Justices, as stated by the Under-Secretary for Ireland, in reply to a memorial of the magistrates of the county to the Government. It was there said, that there were circumstances about the case of Mr. Biddulph which placed it beyond the ordinary description of crime in that county. At least it was some consolation to think on the present occasion that he (the Earl of Charleville) could not fairly be charged with anything of party or sectarian feeling in bringing before their Lordships this case; because this memorial of the magistrates of the King's County, of the temperate and moderate tone of which the Lords Justices had expressed their approbation, was signed by the magistrates of the county, of whatever politics, with the exception of Mr. Fitzsimon, who differed from the rest only as to one sentence in the memorial, which he thought might be construed to imply some censure on the police. Two persons, one named Colgan, the other Doherty, were apprehended for the attempt to murder, and brought to trial. The Solicitor-General, who was sent down with another learned Queen's counsel by the Government to conduct the case, declared in his able speech on the occasion (for a 852 report of which he, the Earl of Charleville, did not rely on any newspaper, but upon a friend of his, who had taken most ample notes), that it was impossible to contemplate anything of a more frightful and appalling nature than the state of things in the King's County, The Solicitor-General said, he blushed for the peasantry of his country. When this deed was perpetrated there were workmen in the fields about, who remained quite passive, tame, and quiet, while it was being done in open day. Not one of them had taken even the small sympathy in the matter of going for a policeman. Not a hand was raised against the culprit. This was the Solicitor-General's account of the matter. And here he begged to express his gratitude—and he did it willingly and with pleasure—to the Government for the support which they had given to the magistrates on this occasion up to a certain point. He must say that they had given every assistance up to a certain point. But all the assistance that a Government could lend was in vain, unless the jury who were to try the prisoners were above suspicion. He knew this was tender ground on which he was treading; he was aware of the difficulty of touching on this subject, or of questioning the character of a jury. But no one had a deeper veneration than himself for the institution of trial by jury; and it was because he knew the value of the institution, and wished that jurymen should always be superior to all objection, that he called their Lordships' attention to this subject, and especially to a practice which had only been adopted in Ireland since the noble Marquess opposite (the Marquess of Normanby) had acceded to the Vice-royalty. On this occasion the prisoners refused to join in their challenges of the jurymen, and between them peremptorily challenged twenty-seven of the panel. The remaining twelve were sworn of the jury, the crown, in accordance with the practice that had been adopted only since the noble Marquess (the Marquess of Normanby) had been in Ireland, not setting aside a single man. There was a difference in the mode of forwarding prosecutions in Ireland and in this country. Here the prosecutions were carried on by the next of kin, though nominally by the Crown; but in Ireland the case was different. Some of their Lordships were Members of the committee of 1839 on the state of crime in Ireland, and as others 853 had, doubtless, read the evidence, he would only refer to one or two extracts from that evidence. The first was the answer of the Lord Chief Justice of the Court of Queen's Bench (Bushe), who said—I do not like to venture an opinion condemnatory of any verdict of a jury. I do not wish to do that; but I can state this, that. I here has been the occurrence of late years of a failure of justice much more frequently than formerly from, I mean, the jury, not agreeing and the judge being, therefore, obliged to discharge them.The other answers were those of Mr. Harrington, the Crown solicitor for the Munster circuit. He was asked—Do the prisoners to be tried generally challenge the most respectable persons on the jury, or are they challenged from some private reason?His reply was—Indeed, I think the prisoner knows very little about the challenge, it is generally the attorney, and he endeavours to get either timid or weak men on, and any strong-minded man he will put by if he can.And then when he was asked further,Do they generally try to strike off the persons in the better grade of life, and, there fore probably better informed?He replied—Yes, the object is generally to strike off the respectable men, and to get at the bottom of the panel the publicans, or some of their own rank of life.In the case of Mr. Biddulph, the twelve persons left after the challenges, the last that remained on the panel, were sworn of the jury. Now, if ever there was a case, which, by the admission of the Lords Justices themselves, was of a serious character, and which, from the nature of the combination, and by the presence and con-assistance of peasantry, called for anxiety as to the appointment of the jury, and required great care to prevent the appearance in the jury box of any persons connected with agrarian outrage, as the noble Marquess would, no doubt call this attack, it was this very case of Mr. Biddulph.. What, then, would their Lordships think, when he mentioned a fact sworn to and produced in evidence before the committee on the state of crime in Ireland, that there were three persons on that jury, one of whom had filled the office of county delegate of the Ribbonmen (a very high office), another had been 854 a committee man of the Ribbon society, and the third had been a parish master. [The Marquess of Normanby—Who were they?] The noble Marquess would find the intelligence which he sought in the evidence of his own officers. The noble Marquess's own stipendiary magistrate would produce for him the sworn informations. He carefully suppressed the names, but he found that these three persons were on the panel when Colgan and Doherty were tried; and he did not think it prudent to go further, as the noble Marquess could easily verify the facts by reference to his own officers. Another person was also sworn to be on the panel who had expressed a strong opinion upon the case. He would not say whether the conclusion to which the jury had come was right or wrong, but nobody could deny that great injury was done to the reliance which should be placed on the trial by jury, if officers of the Ribbon society, known to be connected with that illegal association, were to be found upon the panel. The persons about to take their trial looked not to the justice of their case, but to the composition of the jury, and said, "Oh, now we shall be allowed to escape, for our friends are in the jury-box." This was not a singular case. There was a dreadful murder, for which a man named Hughes was tried in Armagh last winter. There was a person on the jury named Collins, who declared that no evidence, however strong, should induce him to convict the prisoner unless the evidence of an approver were procured, though he well knew at the time no such evidence could be forthcoming. In this case the jury was composed of ten Protestants and two Roman Catholics. The ten Protestants and one of the Roman Catholics were in favour of a conviction, whilst the other Roman Catholic, for no other reason than that which had been assigned, namely, the absence of an approver, said he would stay in the jury-room until he was eaten by the rats, unless the evidence of an approver could be procured. In a case tried last summer a man charge with Ribbonism pleaded guilty on perceiving he had no friends on the jury. There was another case to which he requested the attention of their Lordships, and particularly of the noble Marquess. He alluded to the trial of a Protestant named Gray, charged with having committed a murder in cold blood, in 855 revenge it was said, for evidence given in the trial of a will case. It was not a crime of an agrarian character, or which excited any deep feeling on the part of any large body of the people, yet the Crown lawyers, who had on a former occasion so strictly abstained from the exercise of the prerogative, put it in force to a considerable extent in the case of Gray, who peremptorily challenged seven of the jurors, whilst ten of them were challenged by the Crown lawyers. Some persons were also set aside for cause, as being of the neighbourhood. He was satisfied that the jury in the case of Gray was as honest a one as ever returned a verdict, and he would be happy even now, at the eleventh hour, to hail with delight any departure from the evil practice with respect to challenging; but he must say, that unless some change took place, life and property would continue to be exposed to the greatest danger in Ireland, and it would be the extreme of cruelty and injustice to expect magistrates to do their duty in taking information's, or juries to act without fear or favour in the jury-box. He should now allude to another case—he meant that of Mr. Biddulph. In that case the names of the jurors were posted on the chapel, and the placards professed to point out to the people those of the jurors who would defend them, and those who would not. The jury in the case, not content with disagreeing as to the verdict, put forth a statement signed by eight of them. It would be unnecessary to read their defence of the course which they had adopted: but, not content with defending themselves, they assailed others. They concluded as follows:—We should easily forgive the calumnies of the habitual traducers of our creed, and of the Irish people, when we find two professional men of high standing and hitherto fair reputation, the Solicitor-general, at present the first law officer of Lord Ebrington, a Whig Viceroy, and Mr. Berwick, one of her Majesty's counsel, the former daring to insult the memory of the illustrious dead, to whom he owed so much by perverting his adamantine principle, that 'property had its duties as well at its rights,' and fulminating a charge whose atrocity is only to be equalled by its falsehood—'That there existed a wide-spread conspiracy in this country against life and property,' a charge not only unsupported, but directly contradicted by a most respectable Protestant witness; the latter a county judge of Whig creation, stigmatising the witnesses for the un-fortunate prisoner as 'perjurers,' and 'co-con- 856 spirators,' without a shadow of evidence to support his audacious assumption. But from the calumnies of professional traducers we appeal to our countrymen, who know our character and our lives, and pass by with feelings of pity and sorrow the men who still thirst for the blood of the Irish peasantry, either on the scaffold or in the field.These were the sentiments of eight gentlemen, called upon solemnly to adjudicate on a charge of an attempted murder. Mr. Odlum, a Protestant gentleman, who served on the jury, felt it necessary to call for an explanation of this part of the document, and to know who it was that was said to thirst for the blood of the Irish peasantry. He asked if it alluded to the Protestant gentlemen who served on the jury, for the report went abroad, that these were the persons alluded to, being the four who were for finding the prisoner guilty? The reply given said, that the passage referred to did not apply to them, but declined to say to whom it did apply. Now he would ask, did this charge allude to the magistrates? If so, did the persons making it know, or did they forget, that the magistrates were bound by oath to do their duty faithfully and without fear or favour to the best of their power? that they were most anxious to do so, and that all they sought was the fair, legitimate, and constitutional support of the Government? The magistrates with whom he had the honour of acting would not ask for special commissions, as had been done at Armagh, nor that the next of kin to the injured party should be suffered to fee counsel, for he felt that, if the magistracy were properly support, they would not want the support of any new law to put down crime, but would rely upon the wholesome exercise of the perogative of the Crown to secure on juries a body of men who would not be influenced by fear, prejudice, or bias, either with regard to the prosecutor or the person prosecuted. If this were the case he could hope, that the distracted districts in Ireland would be restored to tranquillity; but if the present state of things were allowed to continue, he was satisfied that danger to life and property would also continue, and that the well-disposed would have much to dread in consequence of the total failure of justice which would ensue. The machinery of the constitution afforded full means for correcting the existing evils, 857 and it was the duty of the Executive to see that those means were efficiently resorted to. Care should be taken to provide against what was now, on the evidence of the Lord Chief Justice, of frequent occurrence—namely, that though the evidence was sufficient, justice was defeated by the disagreement of the juries Mr. Fox, when he was sheriff, exercised his duly carefully, and took care that there should he none but strong men upon the panel, which meant, as he said before, men who would discharge their duty without fear or bias. The result of this course was, that crime met with its due punishment. The friends of the party forwarded a memorial to the Lord Lieutenant, the consequence of which was, that the sheriff was called upon to explain. The sheriff, in reply, said, that in the other course justice had been frequently defeated, and appealed to his general conduct as being above the imputation or the suspicion of partiality. He said that he challenged inquiry into his panel, and defied any man to prove that there had been prejudice or partiality on his part. He likewise said that he had only placed upon the panel strong men, independent in property and in mind, and were not to be intimidated into any verdict which would be contrary to the evidence produced before them. It was because he wished to avoid the necessity of compelling sheriffs to have recourse to this, which, he admitted, was a dangerous precedent, that he had brought the whole subject under the consideration of their Lordships, Thanking them for the attention with which they had listened to his observations, he moved, for "a copy of the criminal calender at lent assizes, 1841, for the King's County, and also for a copy of the rule of court on the said calendar."
The Marquess of Normanby
observed, that there were usually two grounds on which the production of papers was resisted: the first, that of public inconvenience, was generally admitted, but it did not apply to this case. The other objection, that the production of papers would tend to prejudge a question yet undecided, did apply to the motion before the House. The noble Earl had stated that, in the exercise of his discretion, though with great regret and pain, he had after much consideration, been induced to bring the question forward; but it was rather to be lamented that the discretion of the noble Earl had not led him to make 858 a few further enquiries before he put himself in a situation which caused him so much regret, and gave him so much pain. Had he better informed himself as to some of the facts, he would have seen, perhaps, that something was due to the course of criminal justice, and that evil consequences to that course might arise from an ex parte statement, and the premature delivery of a decided opinion. It might have been as well if, as part of his much consideration, the noble Earl had reflected that the case was still to be tried at the next summer assizes. The noble Earl had referred to many communications upon the subject, but he had omitted all notice of one which the noble Earl had himself made to the Lord-lieutenant, which if he read to the House, their Lordships would probably think one of the most extraordinary productions ever introduced to its notice. In stating his case, the noble Earl had left entirely out of view the admission of Mr. Biddulph himself, that the jury was fair and impartial. Mr. Biddulph was by when the panel was called over, and of course could have objected to the constitution of the jury. Mr. Biddulph had then expressed his conviction that a fairer or more impartial jury he never had seen. The noble Earl had complained that there were only fifty jurors on the panel. This showed that the noble Earl had derived his information from sources that ought not to be trusted. The Solicitor-general had informed him that no fewer than 123 persons had been called upon the panel, and that Mr. Biddulph had observed that even if fifty or sixty were struck off, there would remain enough to constitute a respectable and impartial tribunal. Mr. Biddulph had been told to look attentively at the panel, and had taken exception to one man, and Mr. Corballis had asked him the nature of his objection? Mr. Biddulph answered merely that he did not like him; but Mr. Corballis informed him that this was not a sufficient reason for rejecting the individual, and he was accordingly sworn. Mr. Biddulph then said—That he was perfectly satisfied with the jury, and that it was composed of persons who would do their duty according to the evidence.It was to be recollected, also, that the Crown had sent their first legal officer to conduct the prosecution; and he was glad to take this opportunity of saying 859 that he was convinced, that there was not a man in the world who would more honestly discharge his duty than the present Solicitor-general, Mr. Moore. One of the pleasantest recollections of his was when Mr. Moore came to him at the Castle, and said that, after calm consideration, he was convinced that nothing but adherence to the system he (the Marquess of Normanby) was pursuing could tend to promote the peace and prosperity of Ireland. He therefore gave the Government of Ireland his confidence and support, in opposition to the opinions of some of his friends and connexions, as well as to his own previous impressions. The motion of the noble Earl, however, contained a direct charge of breach of duty on the part of Mr. Moore. [The Earl of Charleville—Against the Crown-Solicitor.] Very well; against the Crown-Solicitor, Mr. Gale, who had succeeded in obtaining according to the admission of Mr. Biddulph, an honest, impartial, and respectable jury. The noble Earl now asserted that there were three Ribbonmen on the jury; but in his letter to the Lord-lieutenant of the 23rd of March, 1841, he had mentioned only one. Therefore the matter of complaint had grown with the noble Earl, and his more recent information showed that there were three Ribbonmen on the jury. The name of this obnoxious Ribbonman had been stated in one of the Dublin newspapers to be Egan; but there was, in fact, no person of that name on the jury. That was the reason why he had interrupted the noble Earl, in order to ask the names of the supposed Ribbonmen. The Crown Solicitor stated "he never remembered a case in which a jury had been selected in more strict accordance with the directions of the Attorney-General or more with the sanction of the prosecutor himself." After the jury had been sworn, Mr. Biddulph had more than once expressed his approbation, and said that the jury was a very fair one. It might occasionally happen that an improper person would find his way upon a jury, but if he were not known to Mr. Biddulph and to the Crown Solicitor, in what way would the administration of public justice be benefited by such a motion as the present? The noble Earl had also alluded to the case of Hughes, at Armagh, and to that of Gray, at Ballibay. He was furnished with information from the Crown Solicitor on that circuit, that precisely the same 860 course had been pursued there as on the trials at Armagh and Monaghan. The instruction of the Attorney-General, in 1839, had been strictly adhered to, and in both cases the solicitor employed by the next of kin had been consulted. The noble Earl had alluded to one publican; there were in fact five publicans struck off, and four others came from the immediate neighbourhood of Ballibay. These persons were put aside in order to save the time of the court. Mr. Sam. Gray, it was true, was a very notorious character; he had heard of him a few years ago, because he had not thought fit that he should be appointed under sheriff of Monaghan. [The Earl of Charleville—He was acquitted.] There was no doubt of that fact, for although Mr. Sam. Gray was a man of certain political propensities and of eccentric character, he was not likely to be guilty of such a crime as that with which he was charged. At all events, he had not thought that Mr. Sam. Gray was exactly the person to be under sheriff of Monaghan. Mr. Hamilton, the Crown solicitor, had furnished him with the names of the jurors in both cases: he had acted in exact conformity with the instructions given both in the case of Mr. Sam. Gray, and of the other prisoners. On what, therefore, the noble Earl could being a charge against the Government, he could not imagine. The noble Earl had corresponded with the Lord-lieutenant on this subject, and the last letter he had addressed to Dublin Castle was the following:—London, March 23,1841.MY LORD—Your excellency did me the honour to call on me for an opinion in commendation of the assistance afforded to us by the Government, in bringing to trial the parties charged with the attempt to murder Mr. Biddulph.I took the liberty to reply that, in my mind, it was premature to express an opinion until I had an opportunity to judge by the conduct of the trial of the value of any support afforded by your Excellency.I approach the subject, if you will pardon the expression, 'more in sorrow than in anger;' but, my Lord, I cannot but deeply lament the solemn mockery of justice exhibited at the criminal Court in Tullamore.We asked not for the next of kin to be allowed to join the Crown in prosecuting; all we asked for was a fair exercise of the prerogative of the Crown, to secure an impartial jury.Even that has been denied us; and the necessary, the anticipated result is—the jury do not agree.861On that jury is to be found a parish master of the Ribbon society, at least stated to be so in the evidence on the state of crime in Ireland before the Lords' committee.Possibly the very person who 'ordered' Mr. Biddulph's murder; for, doubtless, this crime is classed as an 'Agrarian outrage!'It is worse than useless to expose the lives of witnesses and magistrates in the attempt to collect evidence and prosecute crime, when the prisoner may choose and pack his jury.I make no doubt your Excellency feels the same regret I do at the escape of these evidently guilty men.I promised the expression of my gratitude if your Excellency gave us every support in your power; under existing circumstances, I can only deplore the result of this trial, and express a hope that henceforward measures may be adopted to prevent the ends of justice being frustrated.I have the honour to be, my Lord,Your Excellency's humble Servant,(Signed) "CHARLEVILLE.His Excellency the Lord Lieutenant, &c.He regretted that the noble Earl had forced him to enter so far into the case, but as the noble Earl had found so much fault with the determination of the jury, for not delivering a virdict, it was but justice to the parties concerned to say, that all who were interested in the prosecution were of opinion, that upon the evidence produced at the trial any jury might fairly disagree. The letter of the noble Earl was extraordinary, but he had certainly been outdone by an organ from which it was not usual to expect any great degree of impartiality, when it called the jurymen co-conspirators, though it stated on a subsequent day, in explanation, that it did not pretend to say that the jury were co-conspirators; concerned in the murder, but in defeating the ends of justice. He might conclude here, but for an imputation the noble Earl had thrown upon the Government of Ireland, of which he had formed a part: it was contained in a passage in a letter, in which the noble Earl had said, that Lord Ebrington's conduct stood in bold relief, when compared with that of the Marquess of Normanby. He was surprised, after all that had passed, that the noble Earl should advert again to that subject; for he must recollect the extraordinary pains taken by the Irish Government to give every assistance for the detection of the persons guilty of the murder of Lord Norbury. He had felt it his duty to state, what most sincerely he felt, that part of the conduct of the noble 862 Earl had thrown considerable impediments in the way of justice. The observations of the noble Earl, that he supposed the persons sent down on the occasion came to supersede the local authorities, was decidedly of this objectionable character, and he had remarked, that it showed a great want of judgment in the conduct of the case. Considerable blame was, therefore, attributable to the noble Earl himself; and what had subsequently happened? A committee had been appointed to inquire into the state of crime in Ireland, and, notwithstanding the declaration of the noble Earl, that he meant to bring the conduct of the Irish Government before the House of Lords, the committee sat for three months, and the question of the murder of Lord Norbury was only incidentally referred to. Having neglected that opportunity, it was a little too much for the noble Earl, three years afterwards, in a correspondence with Lord Ebrington, to throw out this undeserved imputation. But more than this, the noble Earl would recollect that he particularly desired to have the attendance of one particular individual belonging to the constabulary force. The noble Earl was aware of the character of that individual constable, having been in constant communication with him, and the noble Earl wished to have him attached to his district. Without communicating with his superior officer, that request was immediately complied with. The noble Earl was also aware, that that constable had since brought charge against his superior officer for neglect of duty on that occasion, and that the result of the evidence taken, had been to convince the three constabulary officers who were appointed to investigate the charges, that that man so making the charges was not to be believed on his oath. They stated in their report, that they must put entirely out of the question that person's evidence; for it was proved, that he had forsworn himself upon former occasions, and to have stated himself not to have been a soldier, whereas it was clearly established that he had been a soldier, and had been flogged as such, and been punished for four desertions from his regiment. Such was the person whom the noble Earl desired to have employed. No doubt the noble Earl was deceived by this man; still it was the fact, that all the accusations that were subsequently made 863 against the Government arose out of that man's statements. The noble Earl had alluded to two cases that had occurred in the county of Longford, and had stated that Mr. Fox had selected a jury under peculiar circumstances; and the noble Earl referred to an expression of their being "strong men." Now, all their Lordships knew what strong men meant in Longford. They were strong party men, both on the one side and on the other. No doubt they were strong party men. But, said the noble Earl, the same jury brought in two different verdicts, in cases that were precisely similar; or, rather, that the jury in the first case disagreed, and in the second case found the prisoner guilty. But was the noble Earl aware that the evidence in the two cases was of a perfectly different character? It might be very possible for a jury to come to one conclusion in the first case, and to an opposite conclusion in the second case, upon additional evidence being adduced. The noble Earl stated, that this system of selecting juries originated at the time he was at the head of the Irish Government. So far from denying the fact, he was most ready to admit it. He believed, that that system, if properly understood, and as it had been ably explained by the hon. and learned Gentleman who was the Attorney-general for Ireland under the then Irish Government, would prove to be this—that there should no longer exist on the part of the Crown-Solicitor an arbitrary right of challenge of jurymen, to be exercised merely on account of any persons religious or political opinions; at the same time it excluded from the jury-box persons who were members of any political society whatever; also persons locally connected, and who might, therefore, be presumed to be liable to peculiar excitement, and be unfitted to try any case arising within their locality; and it likewise excluded publicans. These exclusions the Crown-Solicitor was imperatively directed to make, leaving him also the power of exercising a discretion in excluding other persons upon just and proper grounds; but as a check to the due exercise of this discretion, he was required to make a statement to the law officer of the Crown at the conclusion of the circuit what those grounds of exclusion were. Now he would say, that that was the proper way in which juries ought to be constituted in Ireland; that since 864 the Emancipation Act there ought not to be any remark to the effect that there were eleven Protestants and only one Catholic on the jury. The noble Earl had spoken of the fact of there having been one Roman Catholic on the jury in Mr. Biddulph's case, and the noble Earl spoke of it as if it were a circumstance to be rejoiced at; he said, that he was glad there was one Catholic on the jury. Now he maintained, that between Catholic and Protestant there ought not to be any distinction—that the moment the law made them all equal, above all other cases, that equality ought to be observed on the jury panel. The noble Earl, and a noble Lord with whom he was connected in the Queen's County, the present Lord Rosse, still more, in their communications with Government, had always been accusing the Catholic priests of not having done their duty with respect to the repression of crime in Ireland. He had some experience of Ireland, and his strong and firm opinion was, that nobody of men, in the way of checking crime, did their duty more firmly and honestly than the Catholic priests of Ireland. But it was impossible at the time of the murder of Lord Norbury, in Queen's County, when the Catholic population of Ireland were told, as they were told by the noble Earl, and still more by the Lord-lieutenant of that county, that they were worse than Turks or Hindoos; that Turks and Hindoos had more feeling and humanity than they had; when this intemperate language was used to a whole population, and was more especially addressed to those pastors to whom that population looked up for religious instruction—it was impossible to expect the same degree of quiet to exist in that particular county as existed in other parts of Ireland. It was not to be wondered at, when such irritating language was held forth, that there should be some circumstances connected with the state of that county, where such agitation existed among the higher orders, that made it an unfavourable exception to the general tranquillity of the country. It was once said by Mr. Canning, during the discussion of Catholic emancipation, that when the penal laws were abolished, while they had done away with the chains, they had left one link remaining to remind the people of their slavery. Others said, that not so much as the last link remained, but only 865 the galling of the fetters. This galling of the fetters ought not to continue; but their efforts ought rather to be to salve over and heal, than by irritation to provoke and fester the wound. They must always recollect, whatever might have been their own opinions upon the subject (and he perfectly well knew that the noble Earl was very strongly opposed to Catholic emancipation), that the great question had passed; that the Roman Catholics were emancipated; that emancipation had become the law of the land; that no one could hope or dream of that law being reversed; and that, therefore, it must be by the hand of fellowship that the Catholics of Ireland must be led, for by the rod of servitude they could no longer be coerced. There was but one way of dealing with the people of Ireland—that was by leading them; for they would not be driven. Before he sat down he could not help referring to an official return in confirmation of the statement made by his Excellency the Lord-lieutenant of Ireland in his letter to the noble Earl in respect to the comparative state of crime in Ireland. The noble Marquess read the following document;—
He would not trouble their Lordships by reading a more detailed statement; but if the noble Earl should require further explanation, he thought he had the means of giving him satisfactory information; in the meantime, he would only say, on the subject of the motion of the noble Earl, that, whether it might or might not be proper for the noble Earl on a future 866 occasion to call the attention of the House to the mode in which juries were formed in Ireland, he thought the noble Earl must feel, that it would be most injudicious for their Lordships to step in at this moment and pronounce an opinion upon a question that was now pending in a court of justice.
"Return of the Number of Outrages of each of the Classes mentioned below, as reported by the Constabulary during each of the Years 1837, 1838, 1839, 1840. 1837 1838 1839 1840 1. Homicide 230 247 189 125 2. Firing at the person 91 48 56 43 3. Assault with intent to murder 5 5 4 7 4. Aggravated assault 958 687 501 381 5. Assault endangering life 154 300 196 6. Cutting or maiming 12 17 27 21 Total 1296 1158 1077 773 7. Incendiary fires. 453 459 413 420 8. Demand or robbery of arms 246 179 180 177 9. Appearing armed 110 46 57 41 10. Administering unlawful oaths 69 53 65 49 11. Attacking houses 606 330 280 229 12. Firing into dwellings 21 23 65 68 Total 1505 1090 1060 984 2801 2248 2137 1757
The Earl of Glengall
was willing to admit that there certainly appeared to have been a diminution of crime in Ireland. The reduction, though rather immaterial, was still on the right side; and he was extremely happy to find it was so; but in the making up of these returns, he must remark, that it was within a very short period that the return of crimes committed in the city of Dublin had been omitted. On the subject of this very jury business, there was a circumstance connected with it which was of great importance. The question to be considered was, not so much whether crime had increased or decreased, as whether the crime that was actually committed was punished or not in the degree it ought to be. His experience in Ireland told him it was not. This was as serious a point as could possibly be discussed. His experience told him, that while in regard to minor offences, it was possible with a little trouble to get a jury to convict; yet when very heavy crimes were committed, crimes upon a conviction for which capital execution might follow, then very great difficulty indeed was found, not only to procure testimony, but to procure a verdict when that testimony was given. The number of rewards offered for the apprehension of offenders, and the number of rewards paid on their apprehension and conviction, would show the great disparity between the number of offences committed and the number of offenders tried. The number of rewards offered by the Lord-lieutenant of Ireland, from the 1st of January, 1837, to the 1st of January, 1840, was 814. Of these there had only been twenty-five claimed and paid. During the same period the constabulary had offered 1,446 rewards, of these only forty-seven had been claimed and paid; thus leaving no less than 2,188 offences unaccounted for. He thought this was a subject worthy of the deepest consideration of the Government. He believed that one great reason why these rewards, which had been offered for the apprehension and conviction of murderers and other serious offenders, were not claimed, arose from 867 the habitual escape of such persons when put on their trial. It was suspected very much that the jurors acted upon a settled plan, somewhat after this manner. The practice was not to find a verdict in the first instance, but to disagree. The consequence was, the parties were tried at another assizes. In the meantime successful efforts were made to get rid of the witnesses, or, as it was generally termed, to buy off the testimony. This happened so constantly as to amount to a denial of justice. He was well acquainted with several instances. It was not surprising, however, that improper persons should get on juries without the knowledge of the Crown Solicitor. He thought he could suggest a course to the noble Marquess, by which this evil might be remedied. At present the Crown Solicitor, who attended the judges at the assizes to prepare the cases, seldom had more than three or four days to do it in. This was not sufficient time for him to become acquainted with the characters of persons liable to serve on the jury. If he were to be in the county three weeks or a month previously to the assizes coming on, he would then be able to learn what persons were fit to serve as jurors. According to the present system, the Crown-Solicitor knew nothing of the jurymen (although the country gentlemen did) until they were in the jury box, and then his knowledge was too late.
The Marquess of Normanby
observed, that the remarks of the noble Earl did not apply to the cases that had been adverted to in the present discussion, because, in all those cases the Crown-officers availed themselves of local information. At the same time he felt the force of the suggestion made by the noble Earl, and he could state to their Lordships that, when he was at the head of the Irish Government, he had several conversations with his lamented friend Mr. Drummond upon the subject, and they both turned it in their minds whether some arrangement might not be made so as to give to the Crown-officers more time for inquiry. When he formerly addressed their Lordships, he omitted to read the answer of the Lord-lieutenant of Ireland to the noble Earl opposite; and having stated that portion of the noble Earl's letter to which that answer referred, he felt that he was bound in justice to his noble Friend, Lord Ebrington, to read his letter to their Lordships:— 868Dublin Castle, March 24, 1841.My Lord—I have had the honour of receiving your Lordship's letter of the 23d inst.Your Lordship cannot regret more than I do that the atrocious attack on Mr. Biddulph, by whomsoever perpetrated, should remain up to tin's time unpunished; but when I am told, as I have been, by the Solicitor-general, who conducted the prosecution in that case with an ability well worthy of his high professional character, that the jury, upon the evidence brought before them, might fairly entertain doubts of the guilt of the prisoners, I cannot admit that that jury is liable to the imputation which your Lordship has thought fit to cast upon their conduct; and I must utterly deny, upon the same authority, confirmed as I believe it would be by every counsel employed, as well as by Mr. Biddulph himself, that there was anything in the composition of that jury to bear out in the slightest degree your Lordship's assumption that it was not fairly chosen, or that there was upon it any individual against whose character the slightest allegation was brought, to the knowledge of the Crown counsel, either before or after he was empannelled.I beg, in conclusion, to assure your Lordship, that so long as I retain my present situation in this country, no attempt shall ever be made, with my knowledge or consent, to tamper with the course prescribed by the constitution for the selection of juries, either wior the base view of giving impunity to crime, to even with the more just and desirable end of securing merited convictions, feeling as I do that it would be far better to set aside trial by jury altogether, than in continuing its form to deprive it of any of its essential attributes.—I have the honour, &c.(Signed) EBRINGTON.The Earl of Charleville.Such was the opinion of his noble Friend now at the head of the Government in Ireland, and he felt that letter was a pledge that his noble Friend would continue to maintain that principle of selection of juries in Ireland to which the noble Earl referred as having been established during his government in that country.
§ The Earl of Charleville
entreated the indulgence of their Lordships for a few moments, while he offered some remarks on the observations of the noble Marquess. As to his correspondence with the Lord-lieutenant, so far had he been from not alluding to it, that he had distinctly said in his opening speech that he did not consider himself at liberty to make use of it in this discussion, as it was of a private character. He had also said, that the opinions expressed in the letters of his 869 Excellency would not allow him to hope that any alteration would be made in the existing system of juries by the present Government, and that he had, therefore, felt himself the more strongly called upon to bring this subject under the consideration of their Lordships. That correspondence arose out of an attack which was made on Mr. Gresson, and he had thought it his duly to call the attention of the Lord-lieutenant to the state of the county, and to ask for the aid and assistance of the Government. Lord Ebrington had, in reply, asked him to state the grounds of his dissatisfaction, and he had added that he was willing and anxious to give every assistance to him and the other local magistrates. The first letter from his Excellency, if he recollected rightly, was marked "private," and he had always considered that this correspondence was of a private character. He felt grateful for the way in which his Excellency received the communication he had made to him, and on the present occasion he was anxious to show that he was so, while he felt it to be his duty to call the attention of their Lordships to the subject which he had brought under their consideration. The noble Marquess had said, that he had stated, that one Roman Catholic agreed in the verdict with the Protestants, and on this point, the noble Marquess had made some observations on the composition of juries in Ireland. Now, it was because he was desirous to see all distinctions between Roman Catholics and Protestants abolished, and because he wished to find them united in their exertions to put down crime, that he had made the remarks to which the noble Marquess alluded, and not from any wish to cast anything like reproach upon either party. As to his non-attendance at the investigation of the cases which had been brought before the House, he could assure their Lordships that he was most anxious to have been present, but from a communication which had been made to him of an official nature, he had thought it better not to attend. He had been the more ready to submit to that advice, because he was anxious to have it believed that the Government were determined to bring every criminal to trial, and to leave the prosecution in the hands of Mr. Brown, by the residentiary magistrate, who had been sent down by the Government after the murder of Lord Norbury. Did the noble 870 Marquess remember, that the law prescribed that the panel which the sheriff should hand in should not exceed seventy-five in number, nor less than fifty? In this instance he felt confident, for he spoke on the authority of a most respectable member of the learned profession, that the panel handed in by the sheriff contained only fifty-three names, and these were disposed of in the way he had described. He had never supposed that Mr. Biddulph had been allowed to consult with the law-officers of the Crown; but, if such had been the case, he thought he had a right to consider that the assistance he had given to the stipendiary magistrate entitled him to be informed of that circumstance. But, on the contrary, so great had been his surprise when he saw the names of the persons on the jury, that he addressed a letter to the public officer of the Crown, and asked him with whom the fault lay. Mr. Keen was, as the noble Marquess opposite had stated, a most respectable person, and he had asked him if he had mentioned any reasonable grounds of challenge to persons who were so well known, that his local information enabled him to arrive at the conclusion in his own mind—a conclusion which the facts had verified—as to the manner in which the trial would come off. As the noble Marquess opposite had referred to the murder of Lord Norbury, he must fairly own, that he had felt the conduct pursued by the Government towards him on that occasion to have been most strange and unaccountable, and, carrying in his mind the warning the noble: Marquess opposite had given him at the end of last Session, that he should advise the Lord-lieutenant of Ireland to watch his actions and conduct while in that country, he had no wish to expose himself with regard to the attempt on the life of Mr. Biddulph, unless he felt that the Government gave him that fair and legitimate support and assistance which he, holding the Queen's commission as a magistrate, had a right to expect. But though the nearest magistrate, he had not been the first to be informed of the attempt to murder Mr. Biddulph; the stipendiary magistrate, who lived some miles distant was the first to be informed of it. Information of the circumstance, however, reached him through a private friend, and he arrived at Mr. Biddulph's house within an hour after Mr. Brown, 871 the officer of the Government. That gentleman had told him, that he had commenced taking the informations, and offered them to him to read, but he told that gentleman he did not wish to interfere with any magistrate he found engaged in any case which did not strictly come within his district, and, therefore, he was willing to leave the case entirely at his disposal. The next morning Mr. Brown called upon him, and requested him to attend and give his assistance in prosecuting that which eventually turned out to be a very difficult and arduous inquiry. He, on this, had felt it his duty, so long as he held the Queen's commission, notwithstanding the warning the noble Marquess opposite last year had given him, to co-operate anxiously, zealously, and willingly to co-operate with Mr. Brown in his endeavours to detect the criminal, and to smooth the way for him in his communications with other magistrates. Having therefore thus acted with him, he thought Mr. Brown was bound to answer the question he had addressed to him; instead of which, however, Mr. Brown, in certainly a very courteous letter, stated, that as a public officer, he did not feel himself at liberty to give him any information on the subject, though he had been a committing magistrate and had acted with him throughout the whole of the transaction. This circumstance served to strengthen the opinion he had before expressed in that House, of the extreme difficulty which would arise in every case, if a paid magistrate—a public officer—were to consider himself superior to other magistrates, and therefore were not at liberty to communicate with the local magistrates as freely and confidentially as he had for seven months acted with Mr. Brown, This was the cause which, when called upon by the Lord-lieutenant to reply to certain inquiries, had induced him to make the distinction between the assistance he then received, and to contrast it with the conduct of the noble Marquess opposite when he held the office of Viceroy of Ireland at the time of the murder of Lord Norbury. He owned he was surprised to hear the noble Marquess say he (the Earl of Charleville had not answered that portion of the subject to which the noble Marquess had alluded when he stated that he had made observations to the stipendiary magistrate 872 in the presence of the prisoner which were insulting to him and the Government. Now, he had indignantly denied those observations at the time they were first alluded to, some time ago, on the presentation of a petition, and now again totally denied them. He had held no conversation of any kind until he had first insisted on the withdrawal of the prisoner, and then the conduct of which he complained was the unjust, improper, unusual, and unconstitutional interference to which he had been exposed. What were the facts? He had been the committing magistrate of a person charged with the murder of Lord Norbury; the other committing magistrates were Captain Fox and Mr. Bury. On that day he attended at Tullamoore, and met there the officer sent down by the Government, to whom he introduced himself, and offered information as to all that had occurred, and told him his anxiety to co-operate with him in every way. On a future day they agreed as to the line of conduct which ought to be taken in the matter. After this he received a letter written in confidence to him by a respectable individual, stating that by ten o'clock next day the writer hoped to be able to give him conclusive evidence as to the guilt of the prisoner; at all events, the writer promised to meet him not later than ten o'clock. He entered Tullamoore shortly after ten o'clock, and went to the gaol with the desire to see the prisoner, who had only been committed for re-examination, in case the new information reached him. Great, however, was his surprise when he found that, contrary to the usual courtesy and custom among justices, the officers of the Government had taken the prisoner out, and were proceeding with the examination of him without the advantage of the evidence he had taken down, and which had been sworn to at the previous examination, which had lasted upwards of three hours. Finding this state of things, he had desired the prisoner to be withdrawn, and then he had complained of the conduct which had been pursued as dangerous, and likely to lead to the obstruction of justice. He complained further that the Government had not acted with the magistrates with cordiality, and that, therefore, the sources of information would be dried up, because the people would feel that if the magistrates were not supported themselves, they could not give protection to 873 those who were possessed of information on the subject. Of this it was true he had complained, and upon that complaint the Government had published in the Dublin Evening Post the informations they had, with a view to upset the statement made by him at the meeting to which the noble Marquess opposite had alluded. The noble Marquess had said, that his informant in the matter of the murder of Lord Norbury was a man of notoriously bad character. Now that man had been in the police, and bore the testimony in his favour of all his officers; he had received rewards since he left the police, and his superior officers were as ignorant of any thing against his character as the noble Marquess himself was when he brought the charges forward. But, in addition to this man's information, he had about the same lime received a letter from a Roman Catholic clergyman, now no more, enclosing some very curious information. The writer stated that he had opposed him in various ways, but still he believed he would do his duty as a magistrate without exposing him. "I will," said the Roman Catholic clergyman, "give you certain information if you will not risk my life by exposing my name, but act upon it." On the receipt of that letter, considering that Mr. Brownrigg, one of the inspectors-general of the constabulary, was then in the district, he did not think he exceeded his authority by making a request of that officer for a policeman to be placed for a short time at his disposal to execute any warrant he might, from the information he was thus promised, think it necessary to put into his hands, and to report to him (the Earl of Charleville) alone; at the same time promising that he would communicate to the inspector-general all the valuable information he received for the information of the Government. It appeared, however, that that officer did not think himself justified in giving him this assistance till he referred to the Government, this he did; but owing to the delay which occurred, his assistance came too late; for the only party he wished to arrest left the country the night before that assistance was allowed him. He had asked for the assistance of Serjeant Goulding, and had stated his reasons for that, selection. Those reasons were, that Goulding was an active, intelligent officer, who had long been quartered in that particular district 874 in which the parties he wished to arrest resided, and was well acquainted with the nick-names or aliases by which they were known and spoken of. These were the grounds upon which he had written the letter which had drawn down upon him so severe an attack from the noble Marquess opposite. But the noble Marquess had said that, with such firebrands as Lord Rosse and him in the country, the state of things which existed was not to be wondered at. Now he thought if the noble Marquess, instead of complimenting him (the Earl of Charleville) upon his powers of endurance, as exhibited by his constant residence in Ireland—a residence which originated in a sincere regard for the people, and a desire to do all in his power to promote their prosperity and happiness, while at the same time he was determined to maintain the laws, and to punish those guilty of the crime of murder, if it were in his power to bring them to justice—if the noble Marquess, instead of this compliment, had remembered some communications he had himself received from Roman Catholic gentlemen, he would not have been induced to hold him (the Earl of Charleville) up as a violent firebrand in his own district, or as one who exhibited sectarian views and feelings. As far as his own tenantry were concerned, he lived in peace and happiness amongst them; he did all he could to improve their condition, and he defied the noble marquess, or any other man acquainted with Ireland, to bring a charge against him that could be supported with truth, that in any one case he had shown an improper bias or unkindly feeling towards any tenant, occupier, or neighbour, because he was a Roman Catholic. But the noble Marquess had included him in the attack he had made on Lord Rosse, and had said, that they both were constantly set up in opposition to the Roman Catholic clergy. For himself, he called upon the noble Marquess to state a single word that ever issued from, his mouth which could justify the assertion. With regard to his noble Friend, Lord Rosse, let the noble Marquess look at the communications addressed by that noble Lord, RS Lord-lieutenant of the King's County, to the Government, on the subject of the attempts made to murder Mr. Synge, a most liberal and philanthropic gentleman. The noble Earl then quoted a letter from the Earl of Rosse, as follows: 875It is quite clear that in all these attacks upon Mr. Lynge the motive for assassination was the idea that the formation of such a community was prejudicial to the Catholic church, and that murder was not a crime under such circumstances, but a good work. Surely the facts of this case demonstrate that the Roman Catholic clergy do not sufficiently instruct their flocks as to the enormity of the crime of murder. The question however is, for this great evil can a remedy be found? Baron Richards alluded to it, but very generally; individuals had complained of it, but in vain. I think, however, that a notice of it by Government, grounded upon the well-known facts of the frequency of murder, the small number of convictions, and the efforts of the peasantry to screen the murderer, might stimulate the Roman Catholic clergy to do their duty; and that some means might be devised, without a departure from usage and precedent of conveying to the Roman Catholic clergy some strong expression of opinion on that subject.He would mention a fact, however, which reflected credit on one of that body. When the late detestable attempt was made on the life of Mr. Biddulph, the Roman Catholic clergyman of the district, on Sunday following, addressed his flock in the strongest and most energetic language, denouncing the crime, and telling his hearers that those who had witnessed the attempt without revealing it, or had aided in the escape of the murderers, were almost as guilty in the eyes of God and man as those who had committed the deed itself. The noble Earl, in conclusion, adverted to the meetings of magistrates which had taken place recently in different parts of Ireland, to show that neither life nor property was secure in that country; and he further observed, that there was additional proof of this fact in the circumstances of the 64tth regiment having been obliged to march from Parsonstown to Limerick on Christmas-day, and no less than twenty-four outrages, according to the evidence of Mr. Blake, having been committed on a single Sunday. He had thought it necessary, injustice to himself, to make this brief explanation, but would not detain ther Lordships further.
The Marquess of Normanby
, in explanation, said he thought the statement about the number of crimes alleged to have been committed on one day had been completely disposed of. It had been proved, that it was an extraordinary mistake which Mr. Blake had fallen into, and that it was contrary to the real fact. As to the 64th 876 regiment marching from Parsonstown to Limerick on Christmas-day, that had nothing whatever to do with disturbances, but was rendered necessary to supply the place of a service regiment which had been removed to Cork.
§ Motion withdrawn.