The Marquess of Clanricarderose, pursuant to notice, to present a petition from the inhabitants of Clonguish, in the county of Longford, complaining of the present disturbed state of that part of the country. The petitioners stated that they looked with alarm and apprehension to the state of lawlessness to which that county had been reduced, the symptoms of which were daily increasing; that outrages and crimes were committed in open day, while the system of intimidation was such that it was next to impossible to bring the guilty parties to justice; and they concluded by praying for the immediate adoption of measures for the protection of the peaceable and well-disposed, and to grant compensation for losses sustained in consequence of those outrages, by 451 which the peace of the county was disturbed. The noble Marquess proceeded to say, that the returns from Ireland did not show a greater amount of crime on the part of the people of that county than was found in the same amount of population in England; but, perhaps the worst feature of these outrages was, that they were committed with the connivance of the people, or at least with such an exhibition of apathy on their part, that no endeavour was made by them to aid the authorities to arrest the criminals; that there was more sympathy for those who offended against the law, than for those who suffered for the violation of the law. The instances of that state of things were too well known to require mention. He believed that it would be an amendment of the law if the suggestion which was made in this petition, and which had been referred to in another place by his noble Friend Lord Clements, was adopted. What they wanted was to enlist the people on the side of the law; and there were only two ways of doing that. The one was to give the people confidence that in all matters in which they had been injured, they might depend upon receiving redress from the legal and constitutional tribunals of the country; and the other was to make it their interest to aid one another in sustaining the law. But to prevent the commission of crime, was far better than afterwards to give redress to those who suffered from it. Towards effecting that object there was every reason to believe that the measure recommended by the petitioners would be an important step; for, as was stated by them, there was more respect for property when it was known that its possessors would be compensated for its loss, than when it was unaccompanied by that protection; and there was very little doubt if compensation were guaranteed by law to the sufferers, these outrages would become much less frequent. While on his legs he would put a question to the Government, upon a subject not less important, but perhaps in a national point of view much more so, than that to which he had just drawn attention; and he should be well pleased could he avoid all preface; but some expressions of opinion that had been made in recent speeches, both in that and the other House of Parliament—opinions which were most fallacious—rendered it necessary for him to make a few observations; for, whether those opinions were sincerely entertained, 452 or whether they were put forth without due consideration, they were alike dangerous and mischievous. It had been said on the other side, in the course of the recent debate, that the State prosecutions in Ireland—he spoke as to the general tenor of the speeches of the noble Lords to whom he referred, not as to any particular expressions used—that the State prosecutions in Ireland had had considerable effect; and that the agitation for a Repeal of the Union, and the desire for Repeal in the minds of the Irish people, had been materially lessened since the prosecution, and was still on the decrease. He was sorry to say he considered that a most fallacious statement. He thought he might well be pardoned for adverting to this subject, even by noble Lords opposite; for he well remembered the rebuke which his noble Friend (Lord Melbourne), or his other noble Friend behind him, met with from the noble Duke (the Duke of Wellington) in the beginning of the Session of 1837–8, for saying in the course of a debate that the state of Ireland was not then more disturbed or agitated than it had been at former periods; though the Government of that day had not made the subject of Irish tranquillity a subject of congratulation in the Queen's Speech, or boasted of it in their speeches in Parliament. He was aware of the difficulty which every Government must experience in its endeavours to govern Ireland with justice and with satisfaction to all parties amidst the state of things which had grown up there; but what he wished to impress upon the present Ministry was, that if they had an idea that they had done anything to check the agitation which had been so long going on in that country, and, what he thought more important, to check the anxiety which unfortunately prevailed, not alone in the minds of the ignorant and unenlightened, but of well-informed and able persons, for the Repeal of the Union, they were labouring under a gross delusion. It had been also said by the Members of the Government and their friends, that the steps taken last year to put down agitation—he meant the State Trials—had been most successful; and that the authority of the law had been vindicated, though their Lordships had, by their judgment, ultimately made the issue of those trials favourable to the persons who had been convicted by the courts below. It had been said more than once, and amongst others by the noble Lord (Lord Stanley), 453 in the speech he made towards the close of the late debate, that the reversal of the judgment took place upon matters merely technical, and not of substance. That was what he (the Marquess of Clanricarde) denied. He contended that it was essentially on the great merits of the question at issue, that the judgment of their Lordships, reversing that of the court below, had been pronounced. It was so understood throughout the country; it was so viewed and represented in Ireland; and it was so spoken of at almost every meeting in that country. Now what were the grounds of that reversal? As he understood from the debates and from the speeches made by their Lordships on the occasion, there were two points upon which the judgment of the Court of Law was reversed: the one in regard to the counts of the indictment, and the other to the formation of the jury list. Two of the counts were undoubtedly and indisputably bad, and others were disputed. Whether the Court below, in pronouncing sentence, ought to be considered as putting out of view the two bad counts, and relying on the good ones, he knew not. He could not say what was the law (but there could be no doubt that their Lordships, acting upon the high legal opinions they had called in, had decided correctly); but as a matter of common sense, it would seem to be wrong that a man, who was found guilty of some only out of several counts in an indictment, should be deemed guilty of the whole; and in the case of the late State trials, the Judges, [...]n pronouncing judgment, paid particular attention to those counts which were afterwards pronounced to be bad. He, therefore, said, that when their Lordships reversed the judgment of the Court of Law, they acted in accordance with justice and equity, whatever differences of opinion there might have been as to the law. He contended, then, that the reversal of the judgment on the counts was not a mere matter of technicality, but of justice and equity. The other question was of still greater importance—that of the striking of the jury list. The paper containing the names from which the jury was to be struck was avowedly and admittedly deficient of a certain number of names, and the question was whether that was a proper list from which the jury should have been selected — was that a mere matter of technicality?
The Marquess of ClanricardeBut that point was pointedly alluded to by the Lord Chief Justice of the Queen's Bench, when delivering his opinion, and the danger of such a practice was distinctly pointed out.
The Marquess of Clanricardewas aware the question did not altogether turn on that point; but he was endeavouring to show what were the circumstances of the judgment, and what had been the effect of that judgment in Ireland, and upon the confidence of the Irish people in the tribunals of that country. It was admitted the jury was formed from a defective list. The jury so formed might, it was true, be good in law; but what he contended was, that when the constitution had established certain securities and safeguards to a person put on his trial, and that the jury should be fairly composed, any inroad made upon them deprived the party of those advantages he had a right to look for, and took from trial by jury half its purity; and especially in a country where there was one party adverse to, and the other in favour of a particular class of persons, it was impossible to select a jury from one party exclusively without doing injustice. Their Lordships' decision had shown to the people of Ireland that they could not depend upon the courts of that country for justice; and so far from the result of those trials having given increased confidence to the people of Ireland in the administration of justice, it had weakened that confidence to a serious extent. For what had been the consequence to the accused persons? They had been, he would not say illegally, but they had been wrongly incarcerated in a gaol; he said wrongly, because their Lordships, by passing the Bail in Error Bill this year, had admitted the wrong. Then how far had they succeeded in putting down the agitation? Let them look to what had taken place upon what was called in Ireland, and would be called for many years to come, "Incarceration Day," the 30th of May. He had received many letters from persons who had witnessed the proceedings of that day; and all agreed that never had there been such a meeting as that Mr. O'Connell had upon that occasion — such a concourse of people, all in uniform, had never been brought together in Dublin before. Trade was at a stand still, and the capital was, during the greater part of the day, in the possession of an organized mob. 455 This was the statement of his correspondents. Could any thing then be more absurd than for the Government to say that they had put down these Repeal meetings? and to say that they had put down the feelings in favour of Repeal was, as he should show, equally as absurd. The whole course of the Government in this matter had been a series of mistakes. In the first place, it was a mistake to remain tranquil spectators of the agitation so long. Then, in dismissing the magistrates on account of certain speeches, they had acted capriciously, and without rule. Their declaration against the Repeal agitation—not the declaration, but the time and manner of it—was inappropriate, and the State prosecutions were a greater mistake still. Let them look at the rapid increase of the Repeal rent since those prosecutions: in many weeks he believed it had amounted to more than 1,200l., while in no one week had it fallen below 300l. This was proof sufficient that they had not destroyed the feeling for Repeal; for there was no better test of feeling than the money test. Then look at the immense amount subscribed to defend the accused parties, and to prosecute the writ of error. Again, he believed that even stronger language had been used at the various Repeal meetings since the State prosecutions than before; and that, too, with the full knowledge of the Government. At every meeting of the Repeal Association, now, a Government reporter was admitted, and he believed was present; and a sort of tacit sanction was thus given by the Government, by the presence of their own officer, to the proceedings of those meetings. ["Hear!"] So long as they put in no caveat, no injunction against those proceedings, he said they must be supposed to acquiesce in them. A noble Lord referred the other night to the Nation newspaper; that paper, he believed, was the highest authority upon the Repeal agitation; it was the organ of the Repealers, and was circulated throughout Ireland, not only amongst the Repealers themselves — not only amongst those who read it — but amongst those who could not read at all, but to whom it was read. With the passionate language to be found in this paper, were also to be read some very beautiful lyrics; and, he must say, that it was a matter deeply to be regretted to see such talents bestowed on such a subject. [The noble Marquess here read some lines of poetry from the Nation newspaper.] Now, 456 it was not be supposed, that he thought there was any danger of civil war in Ireland. He had never been apprehensive of any such thing. He had no fear at all upon the subject in 1843, when they had heard so much about it, and even when he found English tourists writing in the English newspapers, and endeavouring to demonstrate that a collision between the English troops and the peasantry was inevitable. Even then, he said, he never entertained the notion that they were about to have a civil war. But, saying this, he declared that it was a fearful thing to see the mass of the people arrayed against the Government. He held it, however, that there were, in the present circumstances of Ireland, that which was symptomatic of great danger. They might end in civil war; they might lead to anarchy; they might eventuate in disorder and confusion; or they might—and he trusted they would—pass away without commotion. But this he did say, that he could not conceive a more fearful state of things than to see the mass of people arrayed in hostility against the Government. He might here refer to an expression which had dropped from the Prime Minister in reference to Ireland, and to which the noble Lord opposite had alluded the other night; he meant that speech of the Prime Minister in which he made allusion to the danger to be apprehended in the western hemisphere; and that he was therefore glad, looking to that danger, that he had been able to send a message of peace to Ireland. He knew that the words he referred to had been misconstrued; and he thought, on that account, the sentence was an imprudent one, coming from such a person, as it was so likely to be misrepresented. The noble Lord the Secretary for the Colonies had explained — and properly explained it—that the decision about Maynooth, and the intention to make the grant, had been come to. Now, though the sentence he alluded to was not a very wise thing to say, it was a most wise thing to think. There was, he said, great danger in the state of Ireland. It was one that ought to be a subject of great anxiety; for that which the Prime Minister had alluded to, he could show, by the Irish newspapers, was a contingency ever present to the mind of those who conducted these newspapers, and of the Repeal Association. Such a sentiment was calculated to produce a great effect upon them; and the consequence was, the agitation was now stronger than ever it 457 had been; perhaps, he might say, with great truth, that it was more venomous, and perhaps, he might even admit, it was more likely to be attended with bad consequences. The Party Processions Act having expired, it was decided to have banners at the Cork Repeal procession, and he took it for granted that order had been executed. It appeared that the Cork procession was more numerously attended than any other; that for three hours it was passing along, in bodies marching four and four; and military men could calculate from that what the exact numbers were likely to be. It was also said that the procession of 30th May, in Dublin, dwindled in comparison. He wished now to know from the Government, whether it was their intention to revive the Processions Act, which had just expired. He knew that the Government was exposed to a great deal of animosity from the Orange party; and he must say that they deserved it all, and even a great deal worse. The Orangemen had a right to be exasperated with the Government; because, a short time previous to the Government coming into office, it had appealed to their prejudices, and even after it came into office, it encouraged these prejudices by its appointment to office of men who had voted against the Maynooth grant. On the return of the present Government to office, there was expected by their supporters—and they had a right to expect it—a return to the old Orange system, and that Catholic Emancipation would be defeated practically again, as it had been before, by the Executive. Let them now see the state of feeling that prevailed in the north. He referred to a paper which, alluding to a projected or rumoured Repeal meeting on the banks of the Boyne, called on the Protestants to resist it; that they should not permit Papists to assemble on the banks of a stream which had once "run red with Popish blood." He was sorry that he must here observe upon one of the audible whispers of his noble and learned Friend, who objected to his entering into a discussion on the state of the nation.
Lord Broughamhad no objection to his noble Friend speaking on the state of the ration, but let it be at a proper time. But he objected to his noble Friend entering into a discussion on the state of the nation without notice.
The Marquess of Clanricardecontinued by saying, that he thought himself justified in pursuing the course he did, in presenting 458 a very important petition. The presence of noble Lords from Ireland on the present occasion showed that they understood him; and he might at the same time add, that he had had no communication with any noble Lord since he had given notice of his intention to present a petition. Now, he must say he would not have referred to this subject, if he had not found noble Lords on the other side boasting of having vindicated the law, and of the Government being so strong in Ireland. He denied it. They were reduced to the greatest state of debility that a constitutional Government could be. They had only military possession of the country. There was certainly no danger of civil war; but it was because there was not any immediate danger to be apprehended, that he thought this the most fitting time for discussion. The Processions Act had expired; both parties were taking advantage of it, and if the Government thought that the law now existing was sufficient, and that they could answer for the security of the country, he had no objection to offer; he certainly should not propose any new law; but still, he said, that the prospect of the country was worse than it ever had been. All legitimate influence in Ireland was destroyed. There was agitation on every side—it superseded such legitimate influence. The blood was excited between parties, and the condition of Ireland might be said to be worse, as far as the state of feeling was concerned, worse than ever it was. He wanted to know from the noble Lord, whether he relied upon the present state of the law; and whether, without a Procession Act, he could answer for quieting the disturbances in the country?
Lord Broughamsaid, that before the question was put, he wished to say a few words on a subject unconnected with that question, though the noble Lord thought it connected with it. He admitted the right of the noble Lord to enter into the whole question of the state of the nation, as regarded Ireland; he did not, however, mean to follow the noble Lord's example on that subject; but he begged to be understood, as one of their Lordships who had pronounced the judgment of that House in the State prosecutions, totally and entirely, and as strongly as any language he could command would enable him to say it, that he denied the whole of his noble Friend's statement with respect to the result of the writ of error in that House. He (Lord Brougham) said, it was untrue to state—as it seemed it had been stated—that the decision 459 of the Judges in Ireland had been reversed upon other than technical grounds. He took it, that to say otherwise must proceed from the most extraordinary forgetfulness—for his respect for his noble Friend prevented him from saying ignorance—of the whole course of proceedings of the arguments at the Bar, including, the allegations on the part of the prisoners, and the arguments of the Judges, and the points upon which the Judges were unanimous, as well as those upon which alone there was a slight difference of opinion; and it was in equal forgetfulness—for still out of respect for his noble Friend he dare not say ignorance—of all that had passed in that House, and of all the speeches of the five noble and learned Lords who had alone taken part in the discussions, and in the decision, that his noble Friend had taken it upon himself to say, that to assert that the defendants and prisoners, the plantiffs in error, were acquitted, not upon technical errors, but upon the merits of the case—he said, that if language were afforded to him which would enable him to give a more stringent, a more searching, a more positive contradiction to such a representation of that judgment—if any language could be found more strong than that which he used in denying such an assertion, he would proudly and gladly avail himself of it. There were seven counts in the indictment which were not impugned, and there were four other counts, making in all eleven counts. Seven counts in the indictment were untouched, even in argument, by the plaintiffs in error, the prisoners then under conviction. These seven counts, it was admitted on all hands, by counsel and by the learned Judges, and it was not denied by the three noble and learned Lords who differed from the two others, who pronounced judgment — these seven counts were admitted to charge a conspiracy of a grave and highly criminal nature, and to charge such a conspiracy in such perfect, unexceptionable, technical terms, according to the strict rules of pleading, that the judgment pronounced on the whole case could have stood unimpeachable and unquestionable, if it had been based upon the seven counts; therefore, if the four counts which had been found to be bad, had not been in the indictment, the crime would have been well prosecuted, it would have been well laid in the indictment, the conviction would have been well had, and the sentence and judgment would have been well pronounced, and by no possibility could that prosecution 460 have been impeached, if upon the four additional counts judgment had been pronounced upon each severally, as it had since then been done, and only since then, in compliance with the rule then laid down for the first time. It was but fair to the pleaders in Dublin; it was but fair to the Judges in Dublin; it was but fair to the learned Judges who differed upon this technical point of special pleading; it was but fair to them to state that the two learned Judges who differed from the great majority of their brethren here on this technical point of special pleading, distinctly stated that they were astonished to hear it now for the first time contended that the course pursued was not the right course.
Lord BroughamIt was the first time the objection was made, and against the opinion of the Judges in Ireland, and against the opinion of the great majority of the Judges in England, it was determined that the sentence should be pronounced on each count; and upon that technical point the defendants had the good fortune to escape. It was upon that point, and not upon that which had been alleged, that the judgment was reversed. It was upon the special pleading, and not upon a misdescription of the offence, that the judgment was reversed. That was a different case from that which alleged that the parties had been mistried. If it had been so, there should have been a new trial. All the Judges here, as well as a great majority of them in Ireland, decided against the objections made as to the jury panel. One of the noble and learned Lords here—one, certainly, of the very highest authorities—had dwelt at much length upon the jury panel; another of the noble and learned Lords merely referred to it; and another noble and learned Lord, whose judgment ruled the decision of the House, said not one word about the subject.
§ Lord CottenhamYes, he did.
§ Lord CottenhamHe referred to it, and said, he had not made up his mind with respect to it.
Lord BroughamThe noble and learned Lord must have alluded to the point in a very slight manner, as he had totally forgotten that he had even mentioned it at all. But his noble and learned Friend the Lord Chief Justice must admit, that 461 the decision proceeded wholly and solely upon the point of special pleading; the question had been decided upon anything but the merits. If the judgment had been delivered and entered up upon each count seriatim—upon each count singly — in place of being given generally, as the practice had always hitherto been, it must have stood. He need not now say any more on that subject. It was painful to him to refer to that judgment, and he had hitherto cautiously abstained from making the remotest allusion to it, as the mixing their legislative with their judicial functions in that House, was always to be deprecated. For that reason, too, he had abstained from commenting on language used by a person whose words had been quoted, and who certainly, if he had made the speech that had been mentioned, did use words that astonished him, knowing that gentleman, as he did, personally, and having a great respect for him; knowing him too to be in every way respectable, both by his connexions and his own general demeanour. He had always hoped, and he was sorry to say that was a hope he would no longer cherish, that that hon. person had been misrepresented; that he had never used that most seditious language; and if he said that it went beyond sedition, that it was language provoking to rebellion, and tending to a severance of this great Empire, he would not fall into any exaggeration. But why was it that he never made reference to that and similar incentives to breaches of the peace, which he had seen in other speeches, as well as in that Gentleman's? For this reason, that he was most averse to urge any Government to a prosecution, unless in case of absolute necessity. It was, he thought, a course in every way to be avoided, and much to be deprecated. He abstained too, for another reason, that that House was not the place, nor were they the persons, to suggest a prosecution, when they, as judges in the last resort, were the persons by whom the result of such prosecutions were to be ultimately determined. For this reason he should omit touching upon other points referred to by his noble Friend. He had, indeed, seen it stated by a person of great importance in Ireland, that the parties accused had not been acquitted upon technical points, but upon the merits. Now, if he had been present when such a statement was made there, and had not contradicted 462 it, it might have been said afterwards, that there was some ground for making such an allegation. In regard to the question actually asked, he would simply say, that he wanted no new law to put down party processions; the present law, if carried out fully, fairly, impartially, and temperately, was quite sufficient for preserving the peace of the country. He took that occasion of saying that he wished the system that now prevailed in Ireland of having assistant barristers' courts were extended to this country.
§ Lord Denmanobserved that upon the points on which they pronounced judgment he did not entirely agree with his noble and learned Friend; at the same time he was bound to say that the statement of his noble and learned Friend as to the course of proceedings which had led to the decision of that House, had been most accurately stated, with one single exception. It was upon the subject of the challenge to the array. In his opinion, it had been improperly overruled by the Court of Queen's Bench in Ireland. The fact was, that his noble and learned Friend who had just left the House, the late Lord Chancellor, had not attended so much to that as to other points of the case; but still he said, that finding there was no other remedy for a very great fraud in the manner that the panel had been arrayed, that allowing the challenge to the array would still have been the proper remedy. That he might say, with respect to his noble and learned Friend, had not been accurately stated. With reference to the part he had taken, he had distinctly stated his views to his noble Friend some days before the decision was pronounced, and the arguments had been fully deliberated upon by him before the judgment was pronounced. He did not desire to detain their Lordships further; because, in his opinion, he thought it desirable to abstain from all political observations.
§ Lord Farnhamwas anxious to say a few words on the subject which the noble Marquess (Marquess of Clanricarde) had brought forward, as it referred to the county adjoining that with which he was connected; and in so doing, he would merely refer to that part of the noble Marquess's speech which referred to party processions. He had always been opposed to the Party Processions Act. He regarded it as a one-sided Act. He found 463 no difficulty in prevailing upon those who were affected by it to obey the law of the land. The Processions Act was now expired, and he trusted that it was not the intention of Her Majesty's Government to renew it. He had united with many in giving advice to the Protestants, not to walk in procession in the approaching month of July; and he should not be a false prophet in stating his conviction that they would act in accordance with the advice which had been thus tendered to them. He could perceive no necessity whatsoever for renewing the Party Processions Act, because it was competent for any magistrate in Ireland to act, upon sworn information that any meeting about to be held was likely to be attended with consequences dangerous to the public peace; and, upon such information being given him, it was incumbent upon the magistrate to prevent the meeting from taking place. There was no necessity, therefore, for renewing the Act; an Act which was altogether an ex-parte measure, and which only tended to aggravate the feelings of one party of the community, who thought that they were hardly dealt with, whereas others who met in large numbers, and for bad purposes, were not interfered with. He was decidedly opposed to party processions, and to large bodies of people assembling together in Ireland for any purpose whatsoever, no matter how innocent or praiseworthy that purpose might be, when parties differing from each other in religion and politics might be brought into collision. He was anxious to do all he could to prevent the breach of the peace, and he could assure their Lordships that almost all the landlords in his part of the country were ready to co-operate with him in that desirable object.
Lord Campbellfelt himself, after the course which the discussion had taken, called upon to address a very few words to their Lordships, and he assured them that he did so with the greatest reluctance. Since the time when their Lordships' House had pronounced judgment in the case of the Queen v. O'Connell and others, he had most studiously avoided any allusion to that decision, for he felt, the high importance of keeping distinct their Lordship's political and judicial functions. He thought that his noble and learned Friend (Lord Brougham) had most unnecessarily begun this discussion between that portion 464 of their Lordships' House generally called the Law Lords. A question had been put by his noble Friend behind him (the Marquess of Clanricarde) to Her Majesty's Government respecting the intention of the Government upon a particular Act of Parliament—in other words, whether the Processions Act were to be renewed or not. He should have thought that the noble Lord the Secretary for the Colonies (Lord Stanley), a Member of the Government, or the noble Duke (the Duke of Wellington), that either the one or the other would have been allowed to answer that question; but so eager was his noble and learned Friend (Lord Brougham), to mix in the contest, that he, although not a Member of the Government, that he (Lord Campbell) was aware of, stood up at once to answer the question. He stood up, in fact, when the question was being put. Although he (Lord Campbell) agreed with his noble and learned Friend, the Lord Chief Justice, that, technically speaking, his noble and learned Friend (Lord Brougham) gave a true account of the manner in which the writ of error had been conducted and decided upon in that House, he entirely dissented from the opinion that that decision was founded merely upon technical grounds. It surely would have been much better had the noble Lord the Secretary of State for the Colonies, who upon this subject showed himself not biassed, but most unbiassed, and who did not, when he approached it, exercise that caution with which it was always neeessary to touch learned subjects—it would have been much better, he would repeat, if that noble Lord had abstained from giving any opinion, as he had given the other night, as to whether the judgment of their Lordships' House, in the case referred to, was or was not founded on technical points. It would have been well, too, to have allowed that assertion of a lay Lord, to have been answered by the assertion of another lay Lord. But as his noble and learned Friend (Lord Brougham) had thought it necessary to come forward, he must say, that to assert that the decision in the case was purely a technical decision was incorrect. That assertion was not grounded upon a just view of the case. If they did not all attend to the objection made to the jury, he thought that it could not properly be said, that the decision had proceeded entirely upon technicalities. Although, undoubtedly, there were good counts in the 465 indictment, the defendants had been sentenced on bad counts—on counts which the Judges unanimously believed to be bad, but which the Irish Judges believed to be good, and on which they placed particular stress. These counts, which the Irish Judges believed to be good, and on which punishment was awarded, the English Judges held to be bad; and one ground of reversal was this, that punishment was awarded by the Court of Queen's Bench in Ireland on counts which did not set forth any indictable offence. A judgment when reversed upon that ground could surely not be said to have been reversed upon purely technical points. The defendants were sentenced for that which in the law of England and of Ireland was no offence; and that was one ground for the reversal of the judgment. But that was by no means the only ground on which the writ of error was brought—that was by no means the only ground on which noble and learned Lords had given their decision. One ground strongly pressed at the bar of that House was this, that the trial had been unfair, for that there had been fraud in making up the jury list. It was expressly alleged, in the challenge to the array, that the jury list had been fraudulently made up, and, on the ground that a great many names had been fraudulently omitted, it was objected that the defendants could not have had a fair trial from such a panel.
Lord CampbellThe noble and learned Lord did not seem to know exactly what he was meddling with. The allegation never came to proof, and never could, because there was only a demurrer to the challenge, and the judgment was upon that demurrer. There was, in the challenge to the array, an allegation that names were fraudulently omitted; and it was asserted that, on account of this fraudulent omission of names, there could not be a fair jury empannelled to try the offence. There was no trial as to the allegation, because there was a demurrer. The Irish Attorney General did not think fit to take issue on that head. He hoped the noble and unlearned Lord was much filter to govern the Colonies, than he had shown himself fit to give an opinion with respect to a challenge to the array. The Attorney General had the right to take issue on any fact alleged in 466 the challenge to the array. It was alleged that the omission of the names was a fraudulent omission; and had issue been taken upon that allegation, it would then have lain upon the defendants to prove that there had been fraud. Instead, however, of taking issue, the fact was admitted by the demurrer; and what the Attorney General said by demurring was, that although all this might be true, yet it was no ground for stopping the trial. The challenge to the array was overruled, as there was no imputation of fraud against the sheriff. Did not the question of fraud, as thus alleged, involve the merits of the case? Was it of no consequence to a man that he was not to have a fair trial? that those who were to sit in judgment upon him were of a contrary religion to his own, and belonged to an opposite political party? Was that a mere technicality? On the ground that the challenge to the array had been improperly overruled, the writ of error had been brought to that House. His noble and learned Friend the Lord Chief Justice, corroborated by the opinion of a learned Judge, Mr. Justice Coleridge, gave a clear and unhesitating opinion that the challenge to the array should have been allowed; that the judgment of the Irish Court of Queen's Bench was erroneous; and that, on that ground, the judgment should have been arrested. He (Lord Campbell) had devoted the greatest attention to the question; and he had come to the same conclusion as that arrived at by the Lord Chief Justice. He had no doubt that, by the just construction of the Act of Parliament, there was a challenge to the array—from whatever cause there was a miscarriage—and error in making up the jury list. Two learned Lords had, in this case, been clearly of opinion that there had not been a fair trial; that the challenge to the array, alleging that there had been a fraudulent suppression of names in the jury list, was founded in point of law; and that therefore it should have been allowed. His noble and learned Friend, the ex-Lord Chancellor (Lord Cottenham), did not think it necessary to go further than to give his opinion upon other points, on which he so clearly decided. He was most cautious, however, to use language to convey on that occasion, that his silence upon the point was not to be construed into acquiescence in the opinion of 467 the Judges. What then was to be said of a conviction, upon a trial, by a jury made up in the manner alleged? He (Lord Campbell) was extremely sorry to be obliged to enter into this discussion; but after what had been said, he could not refrain from saying a few words, from a due regard to his own character. His noble and learned Friend (Lord Brougham) had tried to sneer at the decision. That which he said of it was, that "it had gone forth without authority, and would return without respect," an expression which had met with the unanimous reprobation of the profession.
The Lord Chancellorobserved, that after what had been said, he could not, consistently with his duty, be entirely silent upon that occasion. He could assure their Lordships, that nothing could be more painful to him, having pronounced a judgment, judicially, in that House, than afterwards to enter into any discussion or controversy with respect to the grounds of that judgment, either before their Lordships, or in any other place. His noble and learned Friend (Lord Campbell) charged his noble and learned Friend (Lord Brougham) with having volunteered the present discussion. But the noble Lord (the Marquess of Clanricarde) who had preceded his noble and learned Friend (Lord Brougham) had stated, in the strongest and most emphatic terms, that the judgment of their Lordships' House, was a judgment pronounced entirely on the merits, and not on technical points; and it was for the purpose of meeting that statement, which had not then been made for the first time, and which had been over and over again repeated in another quarter, that his noble and learned Friend, having himself been a party in the matter, felt it his duty to come forward before their Lordships, and to state that, in his opinion, the judgment had been pronounced, not on the merits, but on merely technical grounds. His noble and learned Friend the Lord Chief Justice acquiesced in the correctness of the statement of the facts made by his noble and learned Friend (Lord Brougham). What was that statement? It was only necessary for him to recall it to their Lordships' recollection, to satisfy them that, in substance, the reversal of the judgment had proceeded entirely upon technical grounds. His noble and learned Friend (Lord Brougham) had stated correctly, 468 that there were seven good counts in the indictment, charging serious offences. On the seven counts the jury pronounced a verdict of guilty against the parties accused; and if the judgment had been entered only on these counts, or if it had been entered on these counts severally, and also severally on the remaining counts, there was no doubt but that, in point of law, the judgment must have stood. What, then, was the result of this state of facts? The parties charged with grave and serious offences were found guilty by the jury of these offences; and if the judgment had been entered on these findings, nothing could have disturbed or impeached that judgment, and the prisoners must have undergone the punishment awarded by the Court. Was it not clear, therefore, that in substance the patties accused were found guilty of grave and serious offences—offences of the highest character — and if the judgment was reversed with respect to other counts, was it not also clear that the whole proceeding was technical, and that the judgment was reversed on technical grounds, and not at all upon the merits of the case? It was impossible, in stating the case in this way, that any doubt whatever could be entertained respecting it. When it was said, that the judgment had been reversed on the merits, and not on technical grounds, what was the inference intended to be drawn—what the inference that would be drawn? It would be inferred that the parties were never guilty of offences known to the law, and that they were clearly innocent of the charge preferred against them; whereas they had been found guilty of these charges, and merely from a slip in the mode of entering the judgment, they escaped from the punishment due to their offences. His noble and learned Friend (Lord Campbell) stated that that was not the only ground of reversal. He would lead their Lordships to believe that the judgment was reversed on the question as to the challenge to the array. It was quite clear, for reasons stated by his noble and learned Friend (Lord Brougham), that the judgment was not reversed on that ground; because, had the reversal taken place on that ground, the judgment would have taken another shape; the shape of it would have been quite different from what it was—it would have been a judgment by which the parties would have been exposed to have been brought to 469 trial a second time, whereas, by the form of the judgment, it was clearly seen that it did not proceed upon any ground from which such a result would have arisen. His noble and learned Friend (Lord Campbell) stated that there had been fraud with respect to the jury list; and he would lead their Lordships to believe that the Attorney General admitted the fraud as alleged. Much was said upon that point during the argument. But his noble and learned Friend would allow him to recall to his recollection that an application had been made to the Court of Queen's Bench in Ireland, founded on the very circumstance of this fraud; that affidavits had been filed on the one side and on the other; and that the matter had been investigated, as to the question of fact, whether there had or had not been fraud committed; and that, upon that investigation the Court were of opinion that no fraud whatever had been proved, that fraud had not even been imputed to the Crown, and that the whole circumstance had arisen from accident. It was, then, necessary that the Attorney General should adopt one course or another. So satisfied was he in point of law, that there was no ground of challenge to the array, that he took the course of demurring to the allegation, and in that shape it came before the House and before the learned Judges for consideration. He admitted that there was one learned and respectable Judge who was of opinion that there did exist good ground of challenge. The majority, however, were of a contrary opinion. The point was argued at the bar with great acuteness, ability, and research, on both sides; but, with the exception just made, the Judges were unanimously of opinion that there was no ground of challenge to the array. It was said that Mr. Justice Coleridge entertained a different opinion; but he was not there, and did not hear the arguments at their Lordships' bar. The majority of the Judges, all of them who were present at the judgment, and for whom the Chief Justice (Chief Justice Tindal) delivered judgment, were unanimously of opinion that there was no ground of challenge. His noble and learned Friend (Lord Campbell) said that the question turned upon the point of the judgment being entered on all the counts — on the bad as well as on the good counts; that was to say, on those technically good. With respect to 470 his noble and learned Friend (Lord Cottenham), he stated, in distinct and express terms that, having a very strong opinion on the other point, he had not thought it necessary to investigate the question with respect to the challenge to the array. Was it possible, then, to suppose that when the judgment of the Court below was reversed, that it could have been reversed on the ground of challenge to the array? Everybody uuderstood that it was reversed on technical grounds. He had troubled their Lordships as long as he was justified in doing upon this matter. It was with extreme reluctance that he said one word upon it. He always felt himself in a painful situation when any judgment pronounced in that House, after careful consideration, came into review, or was again canvassed. He felt confident in the correctness of the judgment which their Lordships' House had reversed; but at the same time, he was bound to say that he always entertained the greatest deference for the opinions of his learned brethren, and of the learned Judges, when he happened to differ from them. He must still, however, say, that he felt the utmost confidence in the correctness of the judgment pronounced.
§ Lord Denmanobserved that, with regard to Mr. Justice Coleridge, that learned Judge had attended the whole of the argument. He was present from first to last. When the Judges met to deliver their opinion, the learned Judge was absent from illness, but he wrote to him to say that he gave his complete concurrence, after hearing the question argued in the House, to the view which he (Lord Denman) had taken of the question of the challenge to the array, which opinion his learned brother had expressed to him in language stronger than he considered it necessary to use. He thought that branch of the argument was of the utmost importance for the proper administration of justice in both countries. Mr. Justice Coleridge expressed and felt the same conviction that he did. He himself never expressed the smallest doubt as to the thorough conviction of those in the minority, and he claimed for himself the same charity of construction. No person could have bestowed more care or pains upon the whole question than he did. He had had some leisure time on hand between the close of the circuit and the commencement of the proceedings, and 471 this gave him the opportunity of looking closely into its different points, and he had communicated freely with his noble and learned Friend (Lord Brougham) his impression, and the opinions which he had formed of the case, and he now begged to say that he had not the slightest doubt that, on both points, these opinions were in perfect conformity with the law of the land.
The Lord ChancellorWhen the point of the challenge to the array was reached, the Chief Justice (Chief Justice Tindal) spoke as the mouth-piece of the Judges, as if the Judges were unanimous as to the challenge.
The Marquess of Westmeathsaid, that this was an important question, on which many noble Lords might wish to express their opinions; and the noble and learned Lord had already spoken six times upon it.
Lord BroughamThat is quite a mistake. I have spoken twice upon the subject; but the other four times are a pure fiction of the noble Marquess's brain. It is the reverse of the fact. It is not only not true, it is the reverse of true. This was a matter of great importance to a learned Judge. Mr. Justice Coleridge did not give his opinion in his place, as he should have done if he differed from the other Judges. If Mr. Justice Coleridge had been there, all the Judges would have delivered their opinions seriatim, and that would have been more satisfactory than to hear the opinion of the Lord Chief Justice representing the Judges as unanimous; and then to hear from his noble and learned Friend (Lord Denman) a statement of what, in point of fact, was the opinion of Mr. Justice Coleridge. That was not the regular mode for a Judge to dissent from his brethren.
§ Lord Denmandid not say that it was the regular mode. He had read the letter of Mr. Justice Coleridge as part of his own speech. The learned Judge entertained, if possible, a stronger opinion than he himself, and had he been there he would have expressed that opinion.
Lord Stanleysaid, that after having listened to the whole discussion which had taken place between the noble and learned Lords, he remained of opinion, as he believed 472 the great majority of their Lordships would, that the decision pronounced was founded, not on the merits of the case, but on the technicalities of the law. At an earlier part of the evening he would have endeavoured to follow the noble Marquess (the Marquess of Clanricarde) through some parts of his very able and discursive speech; a speech of which he did not complain, except to say that upon the presentation of a petition from the county of Leitrim, and the putting of a question as to whether it was the intention of the Government to renew the Processions Act in Ireland, they could hardly have expected the noble Marquess to enter into the whole question of the Repeal agitation, and the merits of the decision of their Lordships in reference to the appeal from Ireland. He must tell the noble Marquess, with great regret, that he thought the effect of that speech, if it had any effect at all in Ireland, must be to aggravate the feeling which already existed. For what practical purpose was the noble Marquess's speech delivered? What blame did he attach to the Government? How did he show what course the Government ought to pursue? The noble Marquess had told them that agitation for Repeal was still rife in Ireland, that meetings of a dangerous character were constantly taking place, and that seditious speeches were said to have been delivered. He also made an announcement of an appalling character, considering that it came from a person in his high station; namely, that it was not possible, on a political and party question, to obtain a fair and impartial trial by jury in Ireland. He would put it to the noble Marquess whether, if such were the difficulties under which the Government laboured with respect to that country, the announcement of those difficulties must not greatly aggravate the evil. If the noble Marquess's speech were followed out in its legitimate conclusion, that conclusion would be, that Ireland was unfit for trial by jury, and that some other system must be introduced. He was not prepared to follow the noble Marquess to such a conclusion, and, not being prepared for that conclusion, he deeply regretted that he should have made such a statement. The noble Marquess also charged the Government with not having prosecuted this or that newspaper, or brought parties to trial for making this or that seditious and treasonable 473 speech. He recommended a general prosecution of libellous articles.
Lord Stanleysaid, if the noble Marquess had not made the recommendation, he had read articles from papers which he stated were published under the very nose of the Government; and what was the inference to be drawn from that, if not that he thought the Government of Ireland censurable for permitting such articles to be published?
The Marquess of Clanricardesaid, his object had been to show the state of the country, which was such that he did not think that in certain cases there could be a conviction against any one.
Lord Stanleysaid, with what object did the noble Marquess show the state of the country? It was their Lordships' duty to provide a remedy when the state of the country required it; but, in his opinion, the course taken by the noble Marquess had a tendency to aggravate its condition. If the noble Marquess was prepared to deal with this question, it was his duty to come forward and state wherein the Government had failed to perform its duty, to put them on their defence, and to allow them an opportunity of vindicating their conduct against their accusers. He had, however, taken the much easier course of showing what was called the state of the country—not alleging that it proceeded from any act or omission on the part of Her Majesty's Government. For the state of the country he did not propose any remedy, although the natural inference from his speech would be, that he was in favour of the universal prosecution of seditious newspapers and speeches, and the universal abrogation of trial by jury. The noble Marquess must admit, that if there were, as he stated, a danger of failing to obtain a conviction, infinitely the greater evil would be that of unsuccessfully prosecuting a seditious or questionable speech or article, and thus affording a triumph to the party prosecuted. It must be left to the Government, he thought, to say when they would prosecute and when they would not; they were responsible to their Lordships and to the country for the exercise of their judgment, and they would be deeply responsible for giving to those who were anxious to obtain it, the triumph either of being considered as political martyrs, or of successfully resisting a Government 474 prosecution. Before Her Majesty's Government took any step against individuals for speeches, or newspapers for publications, or against numerous meetings, when they were only numerous, and did not come with certainty within the letter of the law, they should have a reasonable conviction that success would attend a prosecution for such causes. With regard to the state of the county of Leitrim, he begged to state that the Government had taken every step which they thought necessary for the purpose of repressing disorder and of protecting property. They had increased the number of the police and of the resident magistrates; they had sent there a large body of the military; but they were not prepared to come to Parliament for any powers beyond those which were provided by law, trusting that although there existed a state of things which threatened the destruction of property, and, in some cases, endangered the security of life, the law would enable them to put down disturbances without asking for any further powers. In reply to the question with which the noble Marquess had concluded his rather rambling speech, he begged to say that Her Majesty's Government had no intention at present, and he hoped they would not be placed under the necessity, of seeking the renewal of the Act commonly known as the "Party Processions Act." The noble Marquess was afraid that its cessation would give encouragement to parties to carry party banners. The Act was practically, however, a one-sided measure. The noble Lord then cited a portion of the Act. He said, it applied only to anniversaries of commemorations of historical events, accompanied with flags or music, calculated to create animosity. He did not hesitate to say that this Act was mainly directed against those processions of the Orange Lodges which for many successive years previous to its introduction, created in the north of Ireland perpetual animosities between Catholics and Protestants. He was glad to hear the declaration made that night by a noble Lord (Lord Farnham) whose opinion would have great weight with the Protestants of Ireland. The Government did hope that, for the future, good sense, moderation, and more peaceable and sounder views of the terms on which neighbours ought to live together, would lead Orangemen to discontinue processions which the chiefs and leaders of the party 475 must have felt to be dangerous to the public peace. He knew that the influence of those leaders had been exerted successfully for the purpose of repressing demonstrations which might give offence or create animosity between Protestants and Roman Catholics; and, for his own part, and on behalf of the Government, he would infinitely rather owe an abstinence from irritating processions to the good sense and good feeling of Orangemen themselves, than to the provisions of a stringent law directed against one party in particular. Entertaining these views, the Government did not intend to renew the Processions Act; but the allowing that Act to expire could have no effect in encouraging those processions in Ireland which were not connected with historical anniversaries, or with circumstances calculated to excite animosities between persons of different religious persuasions. He believed, also, that allowing that Act to expire, would really have greater weight in preventing those party processions, than a continuance of the most stringent measures of prevention.
The Earl of Wicklowexpressed his satisfaction that the Act was not to be renewed. When, in the course of last Session, the Government proposed its renewal, he met the proposal with a decided opposition. He was glad now to find that all the views and anticipations he had then indulged in had been fully borne out.
§ The Earl of St. Germansexplained, that had not the Act been renewed last year, certain parties who had infringed the law on the 1st of July last year, would have escaped its operation. It was necessary, therefore, to continue it in force to the Spring Assizes of the present year.
The Marquess of Westmeathsaid, that all that had fallen from the noble and learned Lords who had spoken on the subject of the State Trials, only went to show that the law was ineffectual to put down the proceedings of the Repealers. The Government, too, were aware that the same proceedings were still going on. He hoped Parliament would not separate without passing some law for the security of life and property in Ireland.
§ Petition read, and ordered to lie on the Table.
§ House adjourned.