HL Deb 10 August 1843 vol 71 cc476-87
The Earl of Lucan

, in moving, pursuant to notice, for papers connected with his removal from the commission of the peace for the county of Mayo, observed, that as he had only one object in view—namely, to justify his own conduct and clear his own character, he would, as far as possible, abstain from saying anything that might be deemed offensive to the Lord Chancellor of Ireland, or to any Member of the Irish Government. For the Lord-Lieutenant of Ireland he entertained the greatest respect, and would be sorry indeed to say anything disparaging to him, or to believe that he was in any way a party to the injustice of which he had to complain. Not so with the noble Secretary for Ireland, From the sympathy which that noble Lord had expressed for Mr. O'Malley, and the various references he had made to this subject, he could not but persuade himself that the act of Lord Chancellor Sugden had received the approval of the Secretary for Ireland. This was in keeping, however, no doubt, with that noble Lord's please-every-body policy. The facts of the case which he wished to bring under the notice of their Lordships were thus narrated in the following extracts rrom the noble Earl's letter to the Lord Chancellor of Ireland:— My Lord,—I think it my duty to bring to the notice and under the consideration of your Lordship, the conduct of Mr. St. Clair O'Malley, a Magistrate for this county. Having found it necessary, two years since, shortly after my father's death, to dismiss him from my agency, he has not ceased to give me every possible annoyance since. In consequence of its being reported to me that Mr. O'Malley occupied a part of one of my tenants' houses for the purpose of shooting—that he had last year repeatedly sported over my estate—and that he had expressed his determination to persist in doing so—I had him, at the commencement of the present season, cautioned by my solicitor, by letter, against a repetition of this practice; he was, notwithstanding, found by my gamekeeper shooting on my lands on the 22d and 23d of August last. He refused to show his licence—refused to desist shooting—and was violent and abusive towards myself, my agent, and others in my employ. Under these circumstances I thought it expedient and necessary to take the earliest opportunity that offered after the return of my solicitor (Mr. Davis) to this country, to bring the case before the Petty Sessions Court of this district. The avowed determination of Mr. O'Malley was to insult him, the noble Earl said, as publicly as possible, and with that view, thinking the insult would be the more intolerable to those connected with the military profession, if given in the presence of other officers, that gentleman succeeded in securing the attendance on the bench of several military officers and visitors who had never attended the Petty Sessions before. From the very commencement, and throughout the proceedings, Mr. O'Malley's demeanour to the noble Earl continued the most violent and threatening, and the more outrageous, as it was totally unprovoked. I and my agent, Mr. Ormsby, had both strenuously kept off the bench, and had placed ourselves quite apart from the Magistrates, and amongst the other visitors to the court. I never addressed Mr. O'Malley, or uttered one word to irritate or give him annoyance, till I had repeatedly, but most ineffectually, appealed to Mr. Barron, the chairman, for protection against his violent and abusive language and conduct, and his continued and reiterated attacks upon me. Mr. O'Malley had, with a menacing demeanour, most offensively imputed to me, that I was about to adjudicate in my own case; and that he held me and would treat me with the most sovereign contempt, when I called upon the Bench to commit him. Addressing myself to the Bench, I said,—'Gentleman, I am not sitting on the bench. Where I am sitting I have a perfect right to sit, and there is no person in this court that can remove me.' Mr. O'Malley then brandished a great shillelagh,—a most formidable bludgeon,—and used the words 'scoundrel, coward, and blackguard;' upon which I said, 'I call upon you, Mr. Barron' (the chairman), to do your duty, and to give me protection.' Mr. Barron here said, 'Oh, Mr. O'Malley! oh, Mr. O'Malley!' Mr. O'Malley continued his abuse in a louder tone, indeed to the extent of his voice. I, after a pause, added to Mr. Barron, 'Why do you not commit him to the dock, the only fit place for him?' It was not till he had for some time persisted in his violent and outrageous conduct, notwithstanding the repeated, but tame, remonstrance of the Chairman, and his assertion that I was capable of anything, and that neither he nor any other person knew what I would not do, that I invoked the protection of the Bench from that 'miscreant;' a most objectionable expression I admit, but under the circumstances, and in my situation, defenceless and helpless, from the extraordinary apathy of the Chairman, and his inability to keep order, an expression not only excuseable, but justifiable. However violent and offensive Mr. O'Malley's conduct subsequently was, I forbore noticing it, or replying, till he repeated his former imputation, that I was about to act as a Magistrate in my own case, and had placed myself on the bench; and it was only when I saw that the Magistrates neglected contradicting so great a calumny, that I requested they would do so, and not allow the absent public to be misled by what the 'miscreant' might say—a strong expression, I again admit, but will, I hope and expect, he considered excusable by your Lordship, after the violence, abuse, and contumely heaped upon me by Mr. O'Malley, and in the absence of all protection from the Bench of Magistrates. The noble Lord then read a letter from the Secretary to the Lord Chancellor, dated November 24, in which he states— That the Lord Chancellor postponed the consideration of your Lordship's complaint against Mr. O'Malley until the matter in litigation was disposed of. His attention had been anxiously directed to what passed at the Petty Sessions before he received your Lordship's first letter; and he has now been furnished from the Castle with your letter to Mr. Lucas. He cannot but express his regret that your Lordship had not, in the first instance, disclaimed any intention to act as a Magistrate upon that occasion. It is clear you did not intend to act in that character. After an attentive perusal, more than once, of the reports which your Lordship states to be accurate, the Lord Chancellor has come to the painful conclusion, that two Magistrates belonging to the bench, standing in the situation of prosecutor and defendant, used language towards each other which cannot be justified, and set a public example of that want of respect to the administration of justice which too much prevails, and which cannot but increase if the very Magistrates do not restrain themselves in the face of the public, when they happen to be the litigating parties. Although, no doubt, your Lordship received some provocation, yet, as a Magistrate, and upon that occasion a prosecutor, the Lord Chancellor does not think the use of the term 'miscreant' can be justified or excused towards a brother Magistrate, who stood there as a defendant. Mr. O'Malley's own conduct was highly blameable, but it would not be possible for the Lord Chancellor to remove him from the Magistracy upon your Lordship's application. If he understands your Lordship's first letter rightly, that in that case you should decline to act as a Magistrate, the Lord Chancellor will have no difficulty in superseding you upon your own request. It would not be possible for your Lordship and Mr. O'Malley to enforce from others that respect to the court, so essential to the due administration of justice, which you yourselves, although in different degrees, failed to pay. This latter suggestion (the noble earl continued) was in reference to a passage in his (the noble earl's) letter to the Chancellor, of November 3, wherein he said:— I have during the last two years done all in my power to avoid a collision with Mr. O'Malley in the bench, and have in consequence always absented myself from petty sessions when he attended; a duty I most unwillingly neglect, as, from being proprietor of the town, I consider it most incumbent upon me to discharge it. Should Mr. O'Malley be still kept in the commission, your lordship will acknowledge the necessity under which I shall find myself placed, of at once relinquishing the discharge of all magisterial duties. So that he had never proposed to be superseded in the commission. He had, in consequence of what had passed, addressed certain queries to Mr. H. G. Browne and Mr. P. Barron, which he would read to their lordships, with the answers of those gentlemen. Question:— Was I so placed in the court, or acting in such a way, as to make it probable, or even possible, that I intended to act as a magistrate? Under these circumstances do you consider that I was called upon to disclaim in the beginning all intention of acting as a magistrate? Mr. Browne's answer:— Your lordship entered the court in the early part of its proceedings, long before your summons against Mr. O'Malley was called on, On your approaching the bench I stood up, and offered you my chair, which you declined, stating you did not intend taking any part in the proceedings of the day. On saying this you remained where you then were, at the sheriff's box. This was evident to all the respectable persons near the bench, and to Mr. O'Malley himself. I do not consider you were called upon to disclaim, in the beginning, all intention of acting as a magistrate, or to give any explanation whatever, as no person could imagine you would do so. Mr. Barron's answer:— Your position in the court was such that no person could truly suppose that you intended to act as a magistrate. You occupied the place usually taken by respectable strangers when attending assizes or sessions. I do not think you were called upon to disclaim the intention imputed, particularly as I had previously answered the question, that neither you nor Mr. Ormsby had interfered in any of the proceedings of the day. Question:— Did I do any more than repeatedly appeal to the bench for protection, and request that the magistrates would relieve me from the imputation that I had placed myself on the bench with the intention of adjudicating in my own case? Mr. Browne's answer:— You did address the bench in most gentlemanlike language, stating that you had not taken any part in the proceedings of the day; nor was it likely you would then interfere, and that as there were reporters present, you hoped they would take down what you said, lest it might go to the public, you were acting as a magistrate in your own cause. Mr. Barron's answer:— You did repeatedly appeal to the bench, and, as chairman, I took the first opportunity of expressing the opinion of the Court that you had not acted, and I was satisfied had not intention of acting, as a magistrate upon the occasion alluded to, Question:— On the two occasions that I made use of the word 'miscreant' towards Mr. O'Malley, did I do so as between prosecutor and defendant, or only in defending myself, as any other stranger in the court might have done had he been so grossly and violently assaulted? Mr. Browne's answer:— You did not make use of the word 'miscreant' to Mr. O'Malley until you had in vain appealed to the bench for protection (which I regret to say they were unable to give) from Mr. O'Malley's most uncalled for and most insulting language to you, and until he said, 'he intended to use language to you as Lord Lucan, which he would not apply to you as a magistrate; that he had the greatest contempt for you and every act of yours; and that he had no more respect for you than the meanest man in the court, and that he did not know the act you would not be capable of doing.' It was only after you had been most wantonly provoked by such language, and goaded by his insulting manner and gesture, in fact tortured beyond endurance, that in reply or defence to his premeditated attack you forgot yourself; and made use of the word 'miscreant.' Mr. Barron's answer:— The term 'miscreant' was used by you when addressing the bench, and calling for its protection, after Mr. O'Malley had used very irritating and insulting language, such as—'for Lord Lucan, for everything emating from him, and for all his acts I have the most sovereign and bitter contempt,' and other expressions of a like nature. Question:— Be good enough to state what was Mr. O'Malley's deportment towards me, from the first moment that he rose from his seat? Mr. Browne's answer:— Mr. O'Malley's deportment to you, from the moment he rose from his seat, was intentionally insulting, both in language, manner, and gesture. Mr. Barron's answer— I consider it to have been most provoking and insulting. Offence and insult may be more strongly conveyed by manner, look, and demeanour, than by words; in this instance all were combined. Question— Was it possible for any man to be more violently outraged, and to receive greater provocation than I had when I appealed to the bench, and designated Mr. O'Malley a miscreant'? Mr. Brown's answer— I never witnessed more uncalled-for in- sults than was offered to you previous to your using the word 'miscreant' to Mr. O'Malley, nor such outaageous language and threats of violence to you as Mr. O'Malley had recourse to before he induced you to apply a second time the terns 'miscreant' to him. Mr. Barron's answer— The provocation was very great, and likely to produce very angry and excited feelings, perhaps in such moments to the use of expressions which must upon cool reflection be condemned, but which, to a certain extent, may be extenuated, and a great allowance made for, by previous provocation, and the consequent irritation of the moment. Question— With the exception of twice having made use of the word 'miscreant,' did I do or say any thing that could be construed into a disrespect of the bench of magistrates; but, on the contrary, except when calling upon them for protection, did I not remain seated and quiet, and tacitly acquiesce in all the proceedings, however much I may have differed in opinion as to the course they were pursuing? Mr. Browne's answer— With the exception of your having twice used the terns 'miscreant' to Mr. O'Malley, nothing could be more respectful than your conduct to the bench, or more submissive to their decisions, and in no manner whatever did you give Mr. O'Malley cause to insult you as he did previous to your using the term 'miscreant'? Mr. Barron's answer— Except upon the occasions alluded to, you took no part whatever in the proceedings of the day, nor in any manner interfered with the progress of the trial, having left all to your agent, Mr. Davis. These answers he had forwarded to the that Chancellor's secretary, stating to him that Considering the Lord Chancellor had formed his opinion on a wrong impression of facts, he felt it a duty he owed, as much to the Lord Chancellor as to himself, that his Lordship should be thoroughly and perfectly made acquainted with the matter in question. In a further letter to Mr. Sugden, dated Dec. 5, he said, I request you will be good enough to assure the Lord Chancellor that I have no wish to defend the use of the term 'miscreant.' I am quite sensible of the impropriety of such an expression in a court of justice, and I much regret that, under any circumstances, I should have allowed myself to be led to apply it to any person. Nevertheless, I cannot bring myself to adopt his Lordships suggestion of tendering my resignation of the commission of the peace; it might, I consider, carry with it a reflection on my character and conduct, which I feel they do not deserve. I had not placed myself on the bench—as was manifest to all—my intentions I know to have been pure and honourable; and without wishing to excuse the expressions adverted to, I still feel that they were used after the greatest provocation, and under feelings exasperated and tortured by insults to which, I believe, few gentlemen here ever found themselves exposed, and which I am sure very few would be able patiently to bear. I am not insensible of the consequences this decision may involve, but I also know I am adopting the course most consonent with my feelings, and which I believe to be that most becoming my position in society. On the 2nd of December he received a letter from the Lord Chancellor's Secretary, stating— I have laid your additional papers before the Lord Chancellor, who directs me to say that he very much regrets he cannot alter his original view of the case, which was founded upon the whole of what had passed, and, although he did not wish unnecessarily to refer to your Lordship's letter withdrawing the remaining prosecutions, yet it appeared to him that it would have been better not to have brought such a letter before your Lordship's brother magistrates. The expression in this letter about the remaining prosecutions, made it necessary for him to say that on the 11th of November, he had written a letter to Mr. Neal Davis, withdrawing the prosecutions in the following terms:— As I am informed, the magistrate came to no decision in the first case yesterday, from being divided in opinion (two and two) whether a landlord can proceed for trespass in shooting on his estate under the 27th of George III., cap. 35. The second case was withdrawn in consequence of an objection raised by Mr. O'Malley, that the tenant who prosecuted would be an incompetent witness to prove the trespass, an objection admitted by the bench, and acquiesced in on my part. In the third case, and where the tenant again prosecuted, the magistrate who had before voted that he alone could prosecute, now with Mr. Barron, adjudicated 2s. 6d. as a sufficient fine for an aggravated trespass; aggravated, it must be considered, from its being the third committed in two days, and after Mr. O'Malley had declared to my gamekeeper his determination to persevere in such a course. Under these circumstances I think it would be vain and unwise to proceed further at present; I therefore request you will be good to withdraw the remaining cases. He had read this letter again and again, and he could find nothing offensive in it; yet it was considered by the Lord Chan- cellor sufficient to dismiss him from the commission of the peace. On the receipt of Mr. Sugden's letter of the 2nd of December, he had written to him from Chertsey, saying:— I can only express my regret and disappointment, that the Lord Chancellor cannot alter his original view of the case. The statement made by Messrs. Barron and Browne (than whom there could not be more independent and better witnesses), in answer to my queries, and queries put to meet the observations contained in your letter of the 24th ultimo, were so full, and, as I conceived, so satisfactory, that I did hope, and indeed confidently expect, that his Lordship's unfavourable impressions would be mainly, if not entirely removed. Mr. Barron's testimony is the more valuable, as, from his having, as chairman, been much blamed for not protecting me, and keeping order in the court, he cannot speak favourably of my conduct on the occasion, without its telling unfavourable to himself. I can only repeat my sincere regret at having allowed myself to be betrayed into the use of the word 'miscreant' in a court of justice, though expressed under provocation I believe unequalled, and, in the absence of all protection from the bench, I should say unprecedented; I still do not wish to defend it. Having said thus much, I consider myself called upon, with the greatest submission and respect, to add, that, with the exception of the expressions adverted to, I hold that my conduct on the occasion in question was altogether blameless: I challenge all inquiry, fearless of the results. Certain I am, that my character for honour would continue unimpeached, and my character for temper and moderation, qualities which, during a service in the army of upwards of twenty years, eleven of which were in the command of a regiment of cavalry, have been both tried and proved, would not suffer. In this country I have always declined to be a magistrate; in Ireland, I considered it a duty imposed upon me by the state of the country. I have, when permitted, applied myself zealously and, I hope, honourably to its discharge; and I can assure the Lord Chancellor, for whose opinion I shall be always disposed to show the highest respect, that it is with no inconsiderable pain I find I have incurred his Lordship's disapproval. The reply to this letter closed the correspondence, and was in these terms:— Secretary's-office, Four Courts, Dublin, December 8, 1842. My Lord—I have the honour to acknowledge the receipt of your Lordship's letter, and I am directed by the Lord Chancellor to express his unfeigned regret at feeling it his duty to order a supersedeas to issue. I have the honour to be, my Lord, Your Lordship's Most obedient servant, HENRY SUGDEN, Secretary. He was aware that Mr. O'Malley was superseded at the same time; but was this even handed justice? To supersede with the same punishment one who, after provocation, had twice used the term miscreant, and one who had chosen a court of justice for his display—who had demeaned himself in a ruffianly manner, and who had given expression to the grossest language—he called it the grossest injustice, and it could not be exceeded, till an attempt should be made to place him (the Earl of Lucan) on the same bench at Castlebar, with Mr. O'Malley. Some of their Lordships had, doubtless, read the scurrilous and libellous attacks which had appeared in some portions of the Dublin press: at the time they were so libellous that he had instructed his solicitor to take proceedings for their punishment; but after the extraordinary course—for he must so call it—taken by the Lord Chancellor, it was necessary that those prooeedings should be brought to an end. He must observe, also, that at that time the noble Marquess the Lord Lieutenant of Mayo was suffering under such illness as to render a vacancy in that office not improbable; and the newspapers, doubtless, thought if they succeeded in writing him out of the commission of the peace, on account of a presumed deficiency of temper or of judgment, that they would effectually prevent him from ever being placed at the head of the magistracy of that county. He did not wish to comment upon his own acts, but he must observe that he had served for twenty-one years on full pay in her Majesty's army; that when he was scarcely twenty-six years of age he had been appointed by the late Duke of York to the command of the 16th Lancers, which command he had held for eleven years. Under these circumstances, he had applied to the noble Duke the Commander-in-chief to state whether he had ever been found deficient in temper or moderation, and the noble Duke had replied that he should not be in the House himself, but that some other Member of the Government would be prepared to answer that question. He supposed that there would be no objection to the production of these papers, and he trusted that when they were read, coupled with the discussion of that evening, their Lordships would consider his vindication complete, and would be satisfied that he had done nothing by which he ought, justly and properly, to have forfeited the commission of the peace, and he hoped that it would not be considered that he had acted in a manner unworthy of a man of honour or of a gentleman, unworthy of the rank he held in her Majesty's service, or unworthy of the position he held in society as a Member of their Lordships' House. The noble Earl concluded by moving for the papers relating to his removal from the commission of the peace for the county of Mayo.

Lord Wharncliffe

was not prepared to answer the question put by the noble Earl to his noble Friend the Duke of Wellington, because he had not had an opportunity of seeing the noble Duke, and had had no conversation with him; but he was quite sure that his noble Friend did not think it necessary to be present upon that occasion, because the noble Earl's character in the army was perfectly well known. With respect to the papers themselves, although he did not think it generally advisable to make appeals to that House from the decision of the Lord Chancellor, yet, under the peculiar circumstances of the case, he did not fell disposed to refuse the production; at the same time, he hoped that his noble Friend would consider that it would ill become the Government in the present stage of the proceedings to give any opinion on the subject; all that he said was, that the Government would be disposed to put as favourable a construction as possible upon the proceedings.

Lord Brougham

bore his testimony to the temper and judgment of the noble Earl, whom he never thought would be likely to be betrayed into any unbecoming violence in any position in which he might be placed.

The Lord Chancellor

might be permitted to say that although, like his noble and learned Friend, and the noble Lord, the President of the Council, he was not able to judge of the merits of the case in the present state of the question, yet he was sure that his right hon. and learned Friend, the Lord Chancellor of Ireland, had acted upon the present occasion from the purest motives in the discharge of his duty.

The Earl of Wicklow

was surprised that, with the Lord Chancellor of Ireland almost within reach of their Lordship's House, no communication should have been had with him, to vindicate what, on the face of the papers, appeared to be the grossest act of official tyranny he had ever known. He declared before God he never recollected anything like it. It was an insult to that House and to the country.

The Earl of Winchilsea

declared, that if this case were a specimen of justice in Ireland, he, for one, rejoiced that he did not belong to that country. He, too, thought that Ministers ought to have been prepared with some statement of opinion.

The Earl of Glengall

was satisfied that the noble Earl had been most improperly excluded from the magistracy. If something were not done on the subject, there was not a county in Ireland that would not address the noble Earl.

Lord Wharncliffe

added, that until yesterday, he was not fully acquainted with the facts of the case, anti he considered it premature to express any opinion.

Motion agreed to.

House adjourned.