Lords Sitting of 8 August 1842

Preamble
MINUTES.] BILLS. Public.ߞ1a Newfoundland.
2a Lunatic Asylums (Ireland); East India Bishops; Consolidated Fund; Exchequer Bills; Canada Loan; Ecclesiastical Corporations Leasing.
Committed and Reported.—Militia Pay; Tobacco Regulations; Bribery at Elections; Designs Copyright; Slave Trade Suppression; Slavery (East Indies).
3a and passed:—St. Asaph and Bangor Preferments; Dublin Boundaries; Four Courts Marshalsea.
PETITIONS PRESENTED. From Calico Printers (3 petitions), in Favour of the Designs Copyright Bill.—From Grand Jurors of Donegal, against the Medical Charities (Ireland) measure.—From Parochial Schoolmasters of London and Sligo Presbyteries, for the amelioration of their condition.

OUTRAGESߞ(IRELAND.)
Earl Fortescuein moving pursuant to notice for a return of outrages reported by the Constabulary in Ireland, for the last month, begged to assure their Lordships that nothing but a strong sense of public duty would have induced him to trespass on their attention at this late period of the Session, when they must all be naturally anxious to bring its labours to a close. He might however, he thought, claim both for his noble Friend and himself, the credit of not having offered any vexatious opposition to the measures of her Majesty's Ministers. But whenever questions relating to the Government of Ireland had been introduced, they had always been ready to give to the head of that Government the fullest credit for the purity of his motives and the rectitude of his intentions. His observations on the present occasion should be in the same spirit, his object was not to throw blame on the Irish Government, but rather to guard them against the suspicion of tolerating practices, which, if what had been stated respecting them was true, were no less disgraceful to their authors, than cruel to the people and destructive of all social confidence and good faith. With respect to the particular subject of his motion; he must say, that he had always looked with great interest at the Constabulary returns, knowing the care and accuracy with which they were made out under the superintendence of that able and excellent officer colonel Macgregor, and he regarded them, therefore, as pretty sure indications of the temper and disposition of the mass of the people. In the two years and a half, during which he was at the head of the Irish Government, he had had the satisfaction of seeing a gradual reduction of crime, he wished he could say that this had continued to the present time, but while in the first six months of 1841, the number of outrages of all sorts reported by the Constabulary was 2,449, in the corresponding period of the present year they amounted to 3,551, and in twelve classes of more serious outrages upon person and property selected from the general

1113
return, the Number during the first half year of 1841 was 897, while in the same period of this year they amounted to 1,166, showing an increase in these graver offences of 269. He did not make this matter of charge against the Government; as he well knew that outrages might sometimes occur from causes which no Government could wholly prevent, but if as he believed the diminution of crime had been in great measure produced by an increased confidence in the administration of the laws, it surely was fair matter for consideration whether anything had lately occurred to abate that confidence. Now the first act of the present Government was to dismiss eight stipendiary magistrates, on the ground that their duties could be as well performed by the local magistracy. That he did not consider a wise measure. The great majority of the resident gentry of Ireland differed in politics and religion from the mass of the people, who on that account would not feel the same confidence in their administration of the laws, as the people here do in that of the magistracy of this country, even if the Irish gentry were as a body, which he believed they were not, as judicious and temperate in the discharge of their magisterial duties as the English. It was therefore important to have paid functionaries in particular districts, who would assist, and at the same time be some check upon the unpaid local magistracy. And he felt sure, that where that was the case the people had greater confidence in the administration of justice. The removal of the eight stipendiary magistrates was therefore, in his opinion, an ill advised step, neither did he think that ex-officio prosecutions by the Attorney - general against newspapers for calling in question the manner in which juries were selected, was the best mode of showing the people that those selections were fairly made; more especially when the judge who tried the case, in his charge to the jury, laid down doctrines respecting the law of libel utterly subversive of every-thing like fair discussion by the press, and described the publication under trial, in terms partaking more of the eager vehemence of the advocate, than of that grave and deliberate caution which ought always to mark addresses from the Bench. But on these questions there might be difference of opinion, and the majority of their Lordships might possibly consider, that the Government, the Attorney-ge
1114
neral, and the Chief Justice were right and that lie was wrong, but in that to which he was about to call their attention, there could be no two opinions in the mind of any honest and right thinking man. At the late Assizes for Armagh four men were tried for Ribbonism, found guilty, and sentenced to seven years transportation—with the sentence he had nothing to do. It might be quite just for aught he knew, but there was a circumstance on the trial which he felt bound to notice. A witness named Hagan, stated in his examination, that he had been arrested on a charge of Ribbonism, and was released on heavy hail, and was at large from September to February. That during that period he was employed in concocting Ribbon passes and other documents; that he had scattered above sixty of these through the country, and had made several Ribbonmen; that all lie was doing was known to the magistrates; that he had told it himself to the Provost of Sligo, and that his canvassing for Ribbon-men was under the direction of magistrates. Now this was either true or false. If true, the magistrates who could so act were utterly unworthy to hold their commissions, but if this miscreant's account were false, what reliance could be placed on the rest of his evidence? What he (Lord Fortescue) wished the Government to do was to institute a strict investigation into the matter, and if the magistrates should have been found to have acted as described, to visit them with its severest displeasure. If they were innocent, it was due to them to have the calumny exposed, but most of all, it was essential for the Government to mark their reprobation of practices which, if supposed to be tolerated or connived at by them, would utterly destroy all confidence in the administration of the law, and would render Ireland once more a prey to that system of outrage and bloodshed from which she had been for some time happily exempt. The noble Lord concluded by movingߞ
" That there be laid before the House a return of outrages reported by the Irish constabulary during the month of June last."
The Duke of Wellingtonhad no objection to the production of the returns which the noble Earl required, nor should he have thought it necessary to say a word on such a motion if the noble Earl had not thought proper to draw conclusions from the comparative number of offences which

1115
appeared on the face of the returns already made, for the first six months of the present year. The noble Earl had drawn from those returns conclusions against the system of Government carried on by the Lord-lieutenant of Ireland and by the noble Lord the Irish Secretary, and also against some highly respectable and respected persons now filling the highest judicial situations in that country. He thought that the recollection of former discussions on this subject might have retailed to the mind of the noble Earl circumstances which might have occasioned a difference in the amount of crimes reported by the constabulary in different years, without the necessity of calling in question the system of Government in Ireland, and above all, the system of administration of the law by persons at the head of the criminal justice in that country. Admit it to be true that there were more outrages committed in the first six months of 1842 than in those of 1841, at least that it so appeared by the constabulary returns, still it might happen that the constabulary were more active, and discovered more of those offences in one year than in another. Surely it would not be fair to omit so important a consideration as this, when a noble Lord was about to cast blame on the Government and on the administration of justice. As to what took place at the trial before Lord Chief Justice Pennefather at the assizes at Armagh, all he could say was, that from all he knew of the high character of the learned individual who filled the situation of Chief Justice, he did not think that on the bench in either country there was one more distinguished for his great ability and strict impartiality in the administration of the law. It was not therefore to be supposed that in almost the outset of his career as Lord Chief Justice he would deliver a charge more in the spirit of an advocate than a judge, he would not say more on that point, but that it formed no ground for the alleged increase of crime in 1842, as compared with 1841. As to the witness Hagan, he had made inquiry into the case, and learned that his testimony was supported by that of others who were credible persons, and that the parties on trial had been convicted by the fullest and most satisfactory evidence. The noble Earl had adverted to the conduct of the person who had been admitted as King's evidence, and who stated that the magistrates knew of his conduct in endeavouring
1116
to induce others to become Ribandmen, and that they encouraged him in such proceedings, and that the Provost of Sligo had also given him similar encouragement. He had been informed that at the trial the counsel for the accused had made a similar charge against the Government, hut that before the trial closed the learned Gentleman withdrew it, finding, as he stated, that it had no foundation whatever. The charge against the Provost of Sligo and against the magistrates was equally groundless. In fact, it appeared that when the provost released the man Hagan, he told him in the presence of several magistrates to avoid going again into such society as he bad mixed with. There was no more ground for charging the magistrates with any knowledge or encouragement of this man's conduct than there was for charging the Government. If any magistrates could he guilty of such conduct as receiving information of this kind, and employing such a person to get it, and to induce others to become Ribandmen, they would deserve and would receive the severest marks of the displeasure of Government. Nothing could be more base or more unworthy the character of a man or a magistrate than such a proceeding; but in proportion as a charge was severe so should the inquiry into it be strict. He understood that the Government of Ireland had directed inquiries to be made, in order to ascertain the facts on this subject; and they would take due notice of the conduct of the magistrates, if it had been such as the noble Earl described.
The Marquess of Clanricardedid not understand the noble Earl to say, that the evidence given at the trial of the Ribandmen inculpated the Government; but it did, to a' certain degree, the Provost of Sligo and the magistrates. The witness said, the magistrates were aware of his conduct. This witness might not be worthy of credit; and it was not for him to say, that the magistrates were guilty, as their inculpation only rested on the testimony of this individual. The noble Duke said, it was quite impossible that the Lord Chief Justice of Ireland, bearing so high a character as he did, could have made a charge such as described by the noble Earl. He had only become acquainted with the charge by the usual means of public information; and, if correctly reported, he thought a greater misfortune could not befal that learned individual's reputation, no matter what his

1117
previous reputation might have been, than to have his character, as a judge, connected with that charge, as reported in the public newspapers.
The Earl of Wicklowknew nothing of the case, but it appeared an inconvenient and unjust proceeding to throw out imputations of this kind, founded on mere newspaper report, against one of the most able and learned judges on the Irish bench, who was charged with being a party, by his proceedings, to the increase of crime in Ireland. If the noble Earl, before commenting on the learned judge's charge, had inquired whether the report were correct—[Earl Fortescue: " Hear."] Then he on derstood the noble Earl had made previous inquiry; but the noble Marquess certainly rested his accusation on newspaper report. With respect to the witness Hagan, it should be recollected that his evidence was corroborated; and when he said that the magistrates were aware of his conduct, did he mean that they were aware of it during the whole course of his proceedings, or only at the time of the trial? Of course they must have been aware of it at the time of the trial, and this constituted no charge against the magistrates whatever. He could not approve of the reason given by the noble Earl for complaining of the dismissal of some stipendiary magistrates, especially when he considered the high position which the noble Earl had held, and might again occupy in Ireland. The noble Earl said, that the local magistrates had not the confidence of the people, because they were not of the same politics or religion as the bulk of the population. It followed from this that the noble Earl would appoint stipendiary magistrates on account of their politics and religion. Now, he had had experience for a quarter of a century as a magistrate, and he did not believe that the Catholic people valued a magistrate either for being a Roman Catholic or professing liberal politics; but he had invariably found them place confidence in individuals whose high station or great property pointed them out as fit to exercise the magisterial functions.
The Earl of Glengallsaid that the increase of crime in Ireland began before the late Government went out of office; it had been regularly increasing since 1840. In that year the number of crimes, according to the constabulary retorts, was 4,677; and in 1841, during a great portion of which year the late Government was in office, the number had increased to 5,360
1118
That class of crimes to which the noble Earl had alluded, had also increased in 1841, as compared with the amount in 1840. In 1841 the elections took place, and some increase of offences at that time might naturally be expected, but a vast number of these were not comprised in the constabulary returns. During the last election for Tipperary, several persons were wounded and killed; but the wounded were concealed, and the killed were buried. After such turbulence, occasioned by the elections, it was no wonder that the next year's returns should show an increase of crime. The late Government had boasted of possessing the confidence of the people; but they certainly never enjoyed it to the extent they wished it to be supposed. He would substantiate this statement by quoting some passages from a speech delivered by Dr. M'Hale, Titular Archbishop of Tuam, delivered on the hustings at Mayo when he nominated Mr. Browne. Dr. M'Hale " leaned", it was reported, " with a heavy hand on his quondam allies, the expiring Whigs, who," he declares,
" Are only less bad than the Tories, and who were checked in manifesting the exuberance of their hatred to a religion to the political influence of whose professors they owed their own power, were artful enough to keep up the cry against their political opponents, and to justify their own political profligacy, by a reference to the worst tyranny of the Tories. It would seem as if they were justified in doing evil because the Tories had done or might do worse; and whilst they pointed the attention and the fears of the Roman Catholics to the battering-ram with which the Conservatives would heat down our faith, they were insidiously working the engines of the mine,"
And again,
" The unfortunate Whigs overshot the mark. Had they asserted the interests of the empire, whilst they had yet violated no pledge and stood firm in the confidence of the country, they might have gone out of office with general regret, but they would soon have been triumphantly brought back on the shoulders of the people. Instead of that they forgot their plighted faith; they ministered to individual cupidity, instead of consulting the public interest. They created stipendiary magistrates, and inspectors, and commissioners, and chiefs and sub-chiefs of police, and a whole host of unnecessary functionaries, increasing the local taxation of the people, and so exhausted the confidence of the great influential masses of the nation, that they were on the brink of expiring of a political consumption. They deserved their fate; it would be a lesson to all Succeeding Administrations. Let it not be

1119
imagined that it is the dispensation of a well-merited patronage that demands animadversion. Were places conferred as the reward of political principles or national spirit, it would be expected that those principles and that spirit should be more manifest in proportion to the extended range of their operation. But when you find the place-hunters ridiculing in office the very principles by which they sought preferment, we must infer that the place was conferred, not as a reward for their patriotism, but as a bribe for their apostacy. Nay, more, when of these Irish Catholics, of very flexible political integrity, the least possible number is chosen for office, just such a number as may be sufficient to keep the expectants from open mutiny, whilst the English and the Scotch, the Tory and the Radical, are taken to the high places of trust and emolument, is it not evident that the boasted justice Of the Whigs towards Ireland is only the crumbs which they cast to the importunity of selfish suitors, and that the little of benevolence which they have displayed towards this country is entirely ascribable to the spirit of its people, whilst their bigotry and their tyranny are all their own? The petty and vindictive religious annoyances of the Whigs will be at an end. None but a peddling miserable Ministry could devise such expedients for keeping up the ascendancy of the Protestant establishment. To that anti-national object their labours and their vigils were chiefly consecrated, and the last act almost of their political existence—the exaction of the million from those who had already suffered such long and harassing tithe martyrdom, notwithstanding repeated assurances of its remission—fully attests the cordial devotion of those pretended friends to that very establishment to which Ireland owes all its misery. It is not only to our faith, but also to our nation, they marked their enmity; and, whatever department you cast your eyes on, you are sure to meet groups of aliens as the tenants of the principal places. You must, whether the Minister of the day be Whig or Tory, rely on your own energies and your own intelligence. We have been oppressed of old by the one—we have been recently deceived by the others—but in future it will be our duty to watch, and suffer not your credulity to be betrayed by hollow promises, nor force to trample on your constitutional rights."
Those were the opinions of Dr. M'Hale, with respect to the administration of the Whigs, and they confirmed his own view, that the present was better than the late Government for Ireland.
Lord Fitzgeralddid not rise to defend any part of the transaction, but he thought that the assurance given by the noble Duke, that the assistance of Government would be given and would be followed up
1120
fairly and honestly, ought to be satisfactory. He would merely observe, that if Mr. Fawcett and the other magistrates were guilty, so was Mr. O'Brien.
Earl Fortescuerejoiced that his having brought this subject forward had elicited the declaration of the noble Duke, which was honourable to the Government, and would be gratifying to the country.
Motion agreed to.

MARRIAGE LAW (IRELAND)
The Lord Chancellorbegged to lay before their Lordships the report of the committee which had been appointed to consider the state of the marriage law in Ireland. The committee proceeded to examine witnesses; but in the course of their proceedings they were informed that certain proceedings had taken place in Ireland, and that a special verdict had in one case been returned, in order that the question should be argued before the Queen's Bench, the decision in which court would be reviewed in all probability by a writ of error before their Lordships. The judges had been summoned, in order that their Lordships should have the advantage of their advice and assistance in considering the question of the marriage law, and laying the foundation of future legislation, if future legislation should be deemed necessary. That course had been acted on up to a certain point: but notwithstanding all the efforts he, as well as others interested in the question, had made, he found it impossible to have the writ of error decided by their Lordships before the judges went circuit. It was impossible then to come to a decision in the present Session of Parliament. In the mean time he was informed that great inconvenience arose from the present state of the law; that men were deserting their wives in great numbers, and that an immediate remedy was necessary to check the evil. This matter being brought before the committee, after carefully considering the subject, they came to the decision that the bill which had been referred to the committee, should be passed into a law for the purpose of legalising the marriages which had already taken place. Some amendments were suggested in the bill as it was originally framed, and he begged to give notice that he should move its committal to-morrow.
Lord Campbell:It must be in the recollection of their Lordships that he had presented a vast number of petitions from the Presbyterians of Ireland against this

1121
billߞthat body comprising one half the Protestants of that part of the United Kingdom. They unanimously expressed their aversion to the bill which had been sent up from the other House on this subject, on the ground that it was an enacting instead of a declaratory law. It assumed that those marriages were null and void, and that the parties so married (unless the marriages were confirmed by act of Parliament) had lived in a state of concubinage, and that their issue were bastards. This subject excited but little interest, here; but it filled the people of Ireland with consternation. In India, America, and all our colonies, the validity of such marriages must be called in question. It was distinctly announced that no legislation should take place until the question was judicially determined. A solemn warning was given by his noble and learned Friend (Lord Brougham) that marriages contracted pending the decision might be pronounced unlawful. He bore willing testimony to the eagerness of his noble and learned Friend on the Woolsack to bring this question on before the judges went on circuit. But why should not the judges be now assembled? His noble and learned Friend (Lord Brougham) must recollect a case where the judges were summoned to give their advice as to the validity or invalidity of a certain marriage. Would it be unfitting that the judges should be now assembled, and the Session prolonged a few days, in order to decide so momentous a question as whether thousands, and hundreds of thousands of their countrymen were lawfully married, and their children legitimate or bastards. But there was no necessity for summoning judges. His noble and learned Friend on the Woolsack promised to secure the attendance of six or seven judges. [The Lord Chancellor: I said I could reckon on five judges; but some of the bishops objected.] The bishops. Surely his noble and learned Friend dreaded no anathema from that quarter. And at all events he must have done better if he acted on the dictates of his sound judgment, than when he followed (with all reverence he said it) the extremely injudicious advice which had been given on this occasion by some right rev. Prelates. However, it was plain that, in addition to the judges, on which his noble and learned Friend reckoned, their Lordships might have the assistance of three noble and learned Lords who filled the highest judicial office, and whose opinions were univer-
1122
sally respected. They might have the Master of the Rolls, and the judges of the Arches and Consistorial Courtsߞmen eminent for all learning, but especially remarkable for their knowledge of marriage law. Amongst the witnesses examined before the committee, were Dr. Henry and Dr. Montgomery. The first said, that his own father, being dead, must be considered to have lived in a state of concubinage if this bill passed; and Dr. Montgomery added, that nothing could be more offensive to the whole body of the Presbyterians than such an enacting law. he could prove from laws passed in the Irish and English Parliaments, that the present bill was without precedent. In 1782ߞwhen the marriages of Presbyterians by a clergyman of their own body were in the same state of doubt as mixed marriages were nowߞan act was passed declaring them valid, but not at all amounting to an enacting act. In India, again, Presbyterian ministers sent out from Scotland, were in the same situation as in Ireland. In the reign of George 3rd, an act was passed, which stated in its preambleߞ
"Whereas doubts have arisen, &c., as to marriages celebrated by ordained ministers of the church of Scotland, be it declared that such laws should be considered valid."
It had been said, however, that in the present case there could not be a declaratory law, because the decisions in Ireland pronounced these marriages void. In the first place, if that were the case, it would be no bar to their passing a declaratory law. There were several instances where a law was passed directly in the teeth of the opinion of the judges. He recollected one instance of the kind ߞ Fox's Libel Act. Before that bill passed, the judges were assembled, to ascertain whether the jury was entitled to consider the question of law and fact, and they unanimously decided, that the jury had nothing to do with the law. But in spite of this, the House came to the decision, that it was the ancient common law of England, that the joint question came properly before the jury, and that they had unjustly been deprived of it. There was no necessity, however, in this case, of running counter to the decisions of the judges. There was a great majority of those decisions in favour of the validity of such marriages. The noble and learned Lord then referred to a number of cases, among others, the King v, Marshall, the King v. Wilson, the Queen v. Holloway. In one case, Judge

1123
Moore said, in answer to an objection that such marriages were illegal, he wondered that the question should be raised, when the decisions on the circuit in their favour had been so numerous. The only legal authority in opposition to all these was a note in a book of a very acute barrister, deceased, Mr. Jacob; while in the opposite scale, lay the opinions of Sir Samuel Sheppard, Sir W. Scott, Chief Justice Dallas, Lord Ellenborough, and all the high authorities of our courts. In the first decision in Ireland, the judges decided without any great assistance; but in the Court of Queen's Bench, the question was argued (and he carefully read a report of the proceedings) in a most learned, elaborate, and satisfactory manner. No counsel in Westminster-hall could have argued it better—few so well. If ever there was a case for a declaratory act, this was that case. The bill before their Lordships could not but be hurtful to the feelings, and prejudicial to the interests, of the Irish Presbyterians. They should, he thought, contrive means for adjudicating upon writs of error, during the present Session of Parliament, and postpone any legislative enactment until the next.
Lord Broughamsaid, that although it was impossible to deny the greater part of the propositions stated by the noble and learned Lord, still the noble and learned Lord did not seem to reflect on the difficult position in which they were placed, and how much it was a choice of evils and difficulties which was before them. The question was not whether they should pass a declaratory or an enacting act. There existed circumstances which rendered the former course almost impossible at present, however practicable it might have been at a former stage of the proceedings. It had been decided by a majority of eight to two of the Irish judges, that the marriages were illegal, and it would be adopting a very novel course to state, as they would have to state, in the preamble, supposing that they passed a declaratory act, that doubts had arisen as to whether the marriages in question were legal or not, when, as he had stated, it had been declared, by a majority of eight to two of the Irish judges, that there was no doubt about the matter, and that the marriages were clearly illegal. The petitions Which he had frequently presented during the Session, upon this subject, were strongly in favour of a declaratory act; but he believed, that under the existing circum-
1124
stances, when the question was, whether they should have an enacting measure, or no measure at all, the people would prefer the former alternative.
The Lord Chancellorexplained that he had introduced the measure before the House in consequence of the impossibility of finally deciding the question judicially this Session. He had received a letter from the Rev. Dr. Montgomery, the moderator of one of the Irish Synods, stating the desirableness of an enactment of a retrospective character, wide enough to meet all the difficulties of the case; and, instead of insisting upon a declaratory act, appending the draft of an enacting act, which it was stated would be satisfactory. Their Lordships, he thought, could not with propriety pass an act declaring that to be law which not only the Irish judges, but the Ecclesiastical Courts, had declared not to be law. He would, therefore, advise their Lordships to pass the bill before them as the least objectionable course which they could adopt, and as the best mode of meeting the difficulties of the case.
The Marquess of Clanricardebelieved that the great majority of the Irish Presbyterians would be adverse to the bill be- fore their Lordships. He was sure that the most influential and intelligent among them would prefer postponing legislation for this Session, rather than adopting the bill before the House. But for his own part, he was so much aware of the difficulties which had sprung up from the present unsatisfactory state of the law, that he would assuredly wish to see some measure passed upon the subject without delay. He could have wished that it had been found possible to have introduced a declaratory act, for this purpose; for it was the opinion of the Irish people, notwithstanding the judicial decision, that the marriages were legal. There were marriages of the same description taking place in other parts of the world, and if they allowed the idea to go abroad, sanctioned by their Lordships' decision, that such marriages were illegal or invalid, much mischief could not but ensue. He trusted that, supposing the real state of the law to be what the Irish Presbyterian public esteemed it, a declaratory act would be at some future period introduced without prejudice to the bill before their Lordships.
The Earl of Wicklowdid not think that the Irish Presbyterians would be dissatisfied with the bill before the House. At a

1125
former period of the proceedings they might not have approved of it, but under the present circumstances it became a matter of consideration for them, whether it would not be better that the bill as it stood should pass, rather than that the law should remain in its present uncertain condition; and he would, upon this view of the case, give the measure before their Lordships his most cordial concurrence.
Lord Campbellwas afraid that no Presbyterian in Ireland knew what was now about to be done, and the enactment of this bill would come upon them like a clap of thunder.
Report adopted. Bill to be committed.
Their Lordships adjourned.