§ The EARL of ST. GERMANS
, having presented a petition from the High Sheriff and Grand Jurors of Leitrim in favour of the Bill, said, he thought perhaps the most 685 convenient course he could pursue would be to explain the Amendments intended to be proposed by Her Majesty's Government, and afterwards to state his views of the various Amendments proposed by different noble Lords. The first Amendment which he intended, on the part of the Government, to ask their Lordships' concurrence in, had been suggested to him by a noble Lord a Member of the other House of Parliament. The effect of it would be to give the Bill, in some degree, a retrospective effect, by enabling the Lord Lieutenant to charge on a district already proclaimed under the existing law the expenses of the supernumerary police now employed there. The second Amendment was to Clause 17, for the purpose of including tea and coffee-shops in the operation of the clause; for he saw no reason why places where tea and coffee, though not malt liquors and spirits, were sold, should be exempted from visits of the police. The next was a proviso that all offences under this Act should be tried at assizes of Oyer and Terminer, or general gaol delivery. He now came to the Amendments of the Lord Chief Justice. The first proposed that no proclamation of a district should take place until application had been made for that purpose to the Lord Lieutenant by three justices of the peace for the same county, in a form provided. But to him (the Earl of St. Germans) it appeared that where arbitrary power was vested in the Executive Government, it was better that the whole and undivided responsibility for the exercise of such power should be left on the Executive. There were official reports made to the Executive Government daily of the outrages committed in every part of Ireland; and he thought, therefore, the power alluded to should be confined solely, and without any intervention, to the Lord Lieutenant. He did not propose, therefore, to adopt that Amendment, or to introduce another in its place. With respect to the next Amendment of the Lord Chief Justice, he should be most anxious to introduce some provision to carry into effect the spirit at least of the Amendment of the noble and learned Lord. As the Bill stood at present, an individual who was taken into custody by the police, being out of his House between the hours of sunset and sunrise in a proclaimed district, must remain in custody until he was delivered in due course of law. The Lord Chief Justice's Amendment went to give the magistrate, 686 before whom he was to be taken before noon the next day, the power of dismissing him if he was satisfied with the reasons he gave for being out of his House, or if not of committing him to gaol. But that, it appeared to him, would place the magistrate in a very invidious situation. In all probability the magistrate would be either the landlord or the near neighbour of the person arrested, and he would be loth to take on himself the responsibility of committing a man, if he could give anything like a plausible excuse for his having been out. But it was intended that petty sessions should be held once a week at least in every proclaimed barony: he thought it better that such a prisoner should be brought before the petty sessions, and that the magistrates at such petty sessions might liberate, or bail, or commit to gaol these offenders when brought before them. These were all the Amendments of the Lord Chief Justice; and when the noble and learned Lord saw the Amendments of the Government, he (the Earl of St. Germans) could not help thinking the noble and learned Lord would see that in spirit, if not in letter, they embodied the objects the noble and learned Lord had in view. With respect to the Amendment of the noble and learned Lord opposite (Lord Brougham) respecting the change of venue, he (the Earl of St. Germans) must say he hoped the noble and learned Lord would withdraw it, and bring the subject forward in a general and comprehensive form, providing for the removal, of the venue both in cases of misdemeanors and of felonies, In cases of felonies the prisoner had the right of challenge, but not in those of misdemeanors; of the two, therefore, a power of changing the venue was more wanted in the former, which the noble and learned Lord did not provide for, than in the latter, which he did. It was well known that the main difficulty in Government trials in Ireland was the procuring of witnesses. No change of venue could secure the personal safety of a witness. On his return to his home he would be subject to the same ill will as if the cause had been tried at his own county town. He hoped, therefore, the noble and learned Lord would consent, to bring in some general and comprehensive Bill. Now, with respect to the Amendments of the noble Earl opposite (Earl Grey), the object of the first was to deprive the Judges of the power of transportation for being out after the hours proscribed in the Bill. The 687 only vindication of this measure was as the application of an extraordinary though necessary remedy to an extraordinary evil. To that principle the House, as it appeared to him, had already assented. If it were necessary, then, to put a stop to these disturbances, the question came, what punishment was sufficient to deter from the commission of such offences? The object of all punishment was to deter effectually. Now, what criminals in Ireland dreaded the most of all punishments, was transportation. He believed that one or two examples of punishment of these offenders by transportation would produce more effect than a multiplication of examples of imprisonment, which was the object of the Amendment of the noble Earl. In 1835, Mr. O'Connell had approved of that part of the Coercion Bill of 1834, which had been called for, he said, by the Catholic clergy; for he said he knew to what crimes absence from home at nights led, and he professed himself ready to adopt the regulation permanently, and insert it in the Whiteboy Code. He added, that as long as the people in the disturbed districts were not prevented from going out at nights, so long would they have these offences committed. To prevent that was the only means of success. That provision would have the effect of protecting life and property; and no injury would be inflicted by preventing a man leaving his House at night to commit outrages. [The Marquess of LANSDOWSE: But Mr. O'Connell says nothing about transportation.] No, but he was giving his opinion of the terrible nature of the crimes which that punishment was destined to aid in repressing. In fact, this was the case: they could not punish criminals; they could not procure the necessary witnesses; and they had no resource, therefore, but attempting to prevent the crimes which they could not punish. Unless they inflicted what might appear a disproportioned punishment, they would not succeed in their object. But to return to Mr. O'Connell's opinion upon former similar measures. In reference to the Bill of 1834, he stated that it intended to remedy great evils—systematic agrarian outrages. The only infringement upon public liberty was the power given to deal with those who were found out at night, and if successful, it would produce the greatest blessings to Ireland. It was, however, a mistake to suppose that the offence to be punished under the measure was simply that of being out at night. 688 They had to do with the possible case of men going abroad to commit outrages, or actually engaged in their perpetration—of which no actual evidence could be procured. Suppose the case of men being discovered wandering about at night with pistols in their pockets—a crime or crimes having been committed in the neighbourhood, of which, although no witnesses could be brought forward, no moral doubt existed as to the perpetrators—by the ordinary law, men found under such circumstances could not be questioned by the police. It was such cases that the Bill under consideration was designed to meet. He had already trespassed upon the House in entering at some length into the details of the cases, on the occurrence of which the necessity for the Bill was founded; but he did not think that noble Lords who were prepared to withhold from the Judges of the land that power which he contended was essential for the safety of life and property, could be aware of the real state of things. Those who doubted it could not be aware of the numerous representations which had been made to Her Majesty's Government by grand juries, without distinction of party or religion. On the 10th of November, last year, the magistrates of the north riding of the county of Tipperary agreed to a representation, stating, that on no former occasion had there been serious grounds for more apprehension and alarm even in that county than at present; that the varied character of agrarian outrage seemed now to have settled into a systematic course of private assassination, utterly defying all the powers of the law, and urging some more stringent enactment, without which they much feared that the foundations of society would be shaken. The document then proceeded as follows:—During the summer months a short period of calm, as usual, succeeded; but we have now, with the deepest regret, to inform your Excellency, that not only has the approaching winter been ushered in by several murders or attempts to murder, occurring in rapid succession; not only have we to deplore the awful death of Mr. Patrick Clarke, a most respectable gentleman of amiable and inoffensive character, but we have evidence to satisfy us that the lives of very many persons, whom we could name, are in imminent danger. A wholesome dread and terror of law does not exist; but, on the contrary, our county seems to be in the possession of a set of hired assassins whom the law cannot reach; and we are only surprised, that among the middle and lower classes, in their unprotected state, individuals can occasionally be found bold enough to come forward as witnesses in a court of justice. We feel convinced that all sources of information are dried up 689 through the sympathy of the ill-affected, and the intimidation exercised towards the well-disposed. We do not dwell on the numerical amount of crimes committed, because it is to their character that we wish to point attention; ejectment from land is no longer the sole origin of these sad occurrences. The slightest cause is now sufficient to endanger life, and no one can tell when that may arise. We do not urge the insecurity of landlords' rights; we do not complain of want of support being afforded to ourselves by your Excellency's Government; but we point attention to the insecurity of the peasant's hut, to the scenes of desolation there constantly occurring, to the prevalence of that species of crime which saps the root of overy virtue, and is rapidly eradicating all trace of the original character of the Irish peasant. In the name of God and our country, we protest against such a system being further allowed to continue with impunity. In the firm belief that no one more than your Excellency regards with horror and detestation the state of things to which we have alluded, and which we make bold to say is not exaggerated, and in the earnest hope of some prospect being afforded us that an early application will be made to Parliament to strengthen the hands of the Executive by the enactment of some Statute which shall decisively check the existing system of assassination, we now beg leave to present to the representative of our Sovereign this humble and dutiful Address, to which we shall await the reply with the utmost anxiety.This document was signed by Lord Dunally, a man of very liberal political opinions, an excellent landlord, and in no way a supporter of the present Government. It presented a most melancholy picture, which he believed no measure short of that which Her Majesty's Government had proposed would be sufficient to change. Many persons well acquainted with the state of Ireland were of opinion that the measure fell short of what was necessary; but it was the anxious wish of the Government not to go a step beyond what was requisite for tranquillizing the country. There were one or two other communications which he should wish to read to the House; and the first was one from the county of Roscommon, dated July, 1845. It was as follows:—We, the undersigned, grand jurors of the county of Roscommon, assembled at Summer Assizes, 1845, deeply regret to express our conviction that the present condition of our county is most alarming, and that, fearful as its present state may be, it is likely to be much worse when the long nights of winter afford additional facilities to the disturbers of the public peace. We are satisfied that a most wide-spread conspiracy exists, and is daily extending its limits; that immense quantities of arms and money have been collected by the disaffected; that committees of assassination are regularly organized and supplied with instruments to carry out their orders; and that jurors, witnesses, and all classes of the population are subject to the direst intimidation. That a very large addition has been made to our police force, and one 690 which, in its present overtaxed condition, the county is badly able to endure; that the best exertions are being made by the local and stipendiary magistracy, but that, notwithstanding, crime remains unpunished, outrage unrepressed, and confidence unrestored, and matters are daily becoming worse; so that, unless some adequate steps be taken to render the laws and their administration effective, the whole framework of society must be rent asunder. It does not become us to dictate specific measures to Her Majesty's Government, but we feel it an imperative duty to lay before them the condition of our county; and we beg to assure them, that in any measures they may deem necessary for the restoration of public order, they may reckon on every co-operation which we, in our capacities of magistrates or landed proprietors, can in our respective localities possibly afford.This was signed, among others, by the O'Conor Don; and he would ask, was he a man likely to recommend any measure that he thought of an unnecessary arbitrary character? The next memorial he would refer to was from the same county, and was adopted at the spring assizes of the present year. The grand jurors in this document urged upon his Excellency and the Legislature the adoption of some decided measures for the suppression of assassination in Ireland, and observed that no measure would be effective unless accompanied by a rapid and summary mode of trial and punishment in the proclaimed districts. This was signed, among others, by Mr. Denison, a gentleman of influence and also of liberal opinions. He mentioned the fact of these gentlemen having signed such memorials, to show that even those who opposed the Government on political grounds took the same view with them on this important matter, and that the course which Government was now adopting had no connexion with political or party matters. He believed that that very day their Lordships must have been shocked to hear of the attempt which had been made to assassinate a gentleman who was once a Member of the other House of Parliament, one of the most humane men and best landlords in Ireland — he meant Sir David Roche. Here was a letter from the Lord Lieutenant to the Secretary of State for the Home Department, containing an account of this occurrence:—
§ "Dublin Castle, March 4, 1846.
§ "My dear Sir James—I regret to say that intelligence has just reached us that Sir David Roche and Mr. Lyons, two magistrates of the county of Limerick, were fired at on Monday, about four miles from the town of Limerick, where they had been to attend the grand jury. The occurrence took place at about 7 o'clock in the evening, when many people were on the road. All the letters which have reached us upon the subject will be forwarded by this post to the Secretary's office. Sir David 691 Roche is an excellent landlord, and employs a great number of people; liberal in his politics, and highly respected in his neighbourhood. What can be said of the state of society when such men are selected as victims? Believe me, my dear Sir James, very truly and sincerely yours,
§ "Right Hon. Sir James Graham, Bart."
An account, furnished to his Excellency by the foreman of the grand jury at Limerick, stated that—
Sir D. Roche and Mr. James Denis Lyons were proceeding to their homes, in the carriage of the former, shortly after having attended court to be sworn in, at or about the hour of 7, when, as they were passing an orchard enclosure, two shots were fired at them in rapid succession, fortunately without effect.
To this communication an answer was returned by the Lord Lieutenant, assuring the grand jury that every exertion would be made to bring the offenders to justice. A communication received by the Lord Lieutenant stated that no cause could be assigned for this attempt, as Sir D. Roche was one of the best of landlords, and gave a great quantity of work in the country, except that it proceeded from one of his tenants, who had a dispute with his sister-in-law about some land, and Sir David, as was quite right, protected the widow. Their Lordships would see that the opinion he had formed was based on the information of men thoroughly acquainted with the state of Ireland. Nothing could be more painful to him than to propose any measure which tended to abridge the liberty of the subject; but the first duty of the Government was to extend that feeling of personal security and protection to every member of the State, which was his first and most valuable right. With this view the present measure had been introduced, and he now moved that their Lordships resolve themselves into a Committee of the whole House on the Bill.
did not rise to oppose the proposition, nor to enter into the subject last broached by his noble Friend, and illustrated by those very afflicting statements which covered one with shame at the very thought that there should be a part of our fellow countrymen leading lives so detestable as those of the victims of this delusion—for it could be called nothing else—that they had a right to massacre their landlords for making a lawful and righteous use of their own property, and who were under the still greater delusion on this account—that if there was any one class of the community who had a direct and immediate interest in preserving 692 the rights of property and keeping sacred the rights of proprietors, landlords included, it was the peasantry of the country, who lived under those landlords. He did not mean to say one word to countervail the statements of his noble Friend, or in reference to the afflicting statements from the different grand juries to the Lord Lieutenant of Ireland. They were all agreed that something must be done; that some measure was required for the peace of Ireland; that, if possible, it was necessary to devise some efficacious measure to repress those crimes that were unfortunately so frequent there; and without exaggeration, to make Ireland once more become, in all its parts and provinces, a habitable country—a country that could be inhabited safely by the peaceful subjects of the Crown. But he might admit all this, and yet not admit that this Bill was good for the purpose. His noble Friend had applied to him to postpone an important part of the Amendment proposed by him and by his noble and learned Friend the Lord Chief Justice. Now it was not an Amendment of his noble and learned Friend, though he concurred in it. He (Lord Brougham) had proposed it, because the Lord Chief Justice objected to having the provisions it contained confined to Ireland, and to cases of misdemeanor. He, in fact, took the same view as the noble Lord opposite. He wished to confer the general power of making the trial of offences transitory instead of local. He would accede to that proposal, and postpone for the present the consideration of that Amendment, to be made part of a more general measure. As to the objections of the noble Earl to the proposal of the Lord Chief Justice, that the magistrate should have the power to dismiss or imprison a man found out at night, he had only to say that he was sure the noble and learned Lord would feel that the proposal of giving that power to the sessions embraced the spirit of his Amendment. The object of the Amendment was this, that if a man were taken before a judge and jury to be tried for the offence, he would have to prove by witnesses, not by any explanation of his own, why he was out after sunset; but by the proposed Amendment, if his own explanation of the reason why he was out after sunset was satisfactory to the magistrate before whom he was taken, it would be in the power of that magistrate or the sessions to set him at liberty, without requiring witnesses. Such a provision 693 would be a great improvement in the Bill, and a great safeguard to the public liberty. One word as to transportation. He understood that in Ireland very great weight was attached to the punishment of transportation. All the noble Lords and Gentlemen from Ireland he had heard speak on this subject stated that it had a great effect in deterring from the commission of crime. He wished, however, to offer a hint as to the manner of its execution. He held it to be of the utmost importance that when any person, either for misdemeanours or for any other offences, should be sentenced to transportation, especially in Ireland, no interval whatever should be allowed to elapse between the sentence and the execution of that sentence. The sending a convict from the dock to the vessel which was to convey him away had tenfold more effect in overawing criminals, and deterring them from the commission of the like offences in time to come, than double the punishment, perhaps, if not combined with that speedy and prompt execution. He did not mean immediate removal to New South Wales, without leaving time for the interposition of the Crown; but that the commencement of the execution of the punishment should be immediate, and that no time should be lost in having the delinquent removed to the hulks. They all remembered the celebrated case which occurred in Yorkshire twenty or twenty-two years ago. A person was charged by a man and his daughter with committing a capital felony—a rape, in short, on the latter. The case was proved to be a conspiracy. It commenced at nine o'clock in the morning. By ten o'clock it was evident to the Judge that there must be an acquittal—that the evidence was down right perjury. He asked, accordingly, whether the grand jury were discharged. They were not. Then let a bill be sent up. A true bill was found before eleven. The prosecutors in the first case, the prisoners in the second, were tried at twelve o'clock, and at three they were in a cart, condemned and sentenced, on their way from York—the execution of the sentence of transportation having actually begun. The excellent effect of this prompt commencement of the punishment was well known to all who attended the northern circuit at that time. He hoped, also, that, when a murder was committed, the Executive would revive the old practice of executing the murderer in the district where the crime was committed. He would defer 694 any other observation he had to make till after they went into Committee; only remarking, that the noble Earl should observe that some of the memorials read referred to the fact that juries required to be protected in the discharge of their duties.
§ The House then resolved itself into Committee on the Bill.
§ Clause 1 was postponed for the purpose of discussing Lord Denman's proposed Amendment when his Lordship could be present.
§ Clauses 2 to 5 were agreed to.
§ Clause 6 agreed to after a desultory conversation respecting the power of magistrates to compel witnesses to come forward and give evidence although no person could yet have been charged with the crime.
§ Clause 7 agreed to.
§ Clauses 8 to 14 inclusive being money clauses, providing for the payment of money out of the Consolidated Fund, and for a rate to be made and levied to recover again from the county or district the sum so paid, it was proposed that they should be expunged.
The MARQUESS of WESTMEATH
observed, that the English Consolidated Fund ought not to be made to advance the sum in the first instance for a crime committed in Ireland. This was money for a local purpose.
§ LORD MONTEAGLE
said, there must be no delay in the payment of the sum, but the words would be found to be, "from the Consolidated Fund arising in Ireland."
§ These clauses being expunged up to Clause 13,
§ EARL GREY
observed, that Clause 13, providing for the levying the rate to repay this sum to the Consolidated Fund, threw the burden upon the occupiers as distinguished from the landlords, and upon the small occupiers, those whose premises were under the value of 4l., and they were not to deduct this rate from their rent. It was not just thus to exempt the landlords: though they were not the cause of these outrages and evils, Ireland never would have got into its present state, the existing state of society there would never have been such as it was, if the landlords, as a body, had done their duty to the population under them. He should object to this part of the Bill, if it returned with Clauses 13 and 14 in it.
The EARL of RODEN
remarked, that when the noble Earl thought proper to state that the present condition to which society was reduced in Ireland was owing 695 to a neglect of duty on the part of the landlords, he should be guilty of a dereliction of duty if he did not give the statement as direct a contradiction as the courtesy of the House would allow him to give to any individual who ventured to make such an assertion. With regard to these clauses, he thought that making the people pay compensation was the best way of putting a stop to the atrocities which had been committed.
§ LORD FARNHAM
, also, as a resident landlord, must repudiate in the strongest manner that Parliamentary language would admit the unwarrantable attack made upon the landlords of Ireland. All the harm that he wished the noble Earl for that remark was, that he was an Irish landed proprietor, and obliged to live there.
§ EARL GREY
did not wish to be misapprehended on this subject, and therefore he would state at once that he believed that of late years an improvement had taken place in the conduct of the landlords of Ireland towards their tenantry; but, if they looked to the past history of that land, the awful state of things now existing would be seen to be a direct consequence of the dereliction of ther duty by the upper classes of that country, which was an historical fact known not only to England, but to all Europe. ["No, no!"] Noble Lords opposite might repudiate it; but the opinion of the universe was settled upon this point, and nothing they could say would alter it. He trusted the improvement was going on; but even of late years, that acts of great injustice and tyranny had been committed upon the peasantry of Ireland, was not to be doubted.
The EARL of WICKLOW
was surprised that the noble Earl who had just sat down should wish to throw this rate upon the present landlords, as he withdrew all blame from them. [Earl GREY: No, no.] If history showed that the blame rested anywhere, it was on the gross misgovernment which Ireland had suffered from this country.
§ The MARQUESS of LANSDOWNE
said, the question to be considered in reference to this clause was how the pecuniary local burden was to be laid so as to create the strongest interest in the locality to prevent the commission of crime. The offences contemplated by the Bill were not committed by the landlords, but by the lower orders, and by strangers frequenting the district, who found a ready reception in the house of the lower orders; the burden, 696 therefore, ought to fall on those who gave the assassin encouragement, and they ought to be made to feel that they were incurring the danger of a penalty which would come home to themselves. He consequently gave his support to the clause.
The EARL of WICKLOW
observed that the landlords would have to bear a share of the burthen as occupiers.
§ The clause was then expunged, as was also the following clause, they being money clauses.
§ Clause 15, giving power to apprehend persons out of their dwellings between one hour after sunset and sunrise in proclaimed districts, being read,
The EARL of WICKLOW
proposed the introduction of the words "under suspicious circumstances," which, he said, were to be found in the Bill of 1833.
The LORD CHANCELLOR
expressed his opinion that the Bill would not be at all injured by the introduction of the proposed words; and it was agreed that the words should be inserted in the clause, but, as it required further consideration in other respects, it was postponed.
§ Clause 16 was next read, it being understood that the introduction of the words "under suspicious circumstances," in the preceding clause, would necessitate the insertion of similar words in the present.
§ EARL GREY
said, he had to move to this clause an Amendment, of which he had given notice. The object of the clause was to make it a misdemeanour for any person in a proclaimed district to be out of his abode between one hour after sunset and sunrise except upon some lawful occasion, which he would be called on to prove; and by the 21st Clause it was enacted that a person so offending would be liable to transportation beyond the seas for a term not exceeding fifteen years.
The LORD CHANCELLOR
observed, that as the clause was to be altered, and the words "under suspicious circumstances" to be introduced, the noble Earl had better apply his argument to the clause as it was intended to be altered.
§ EARL GREY
thought that he should be 697 able to show that the introduction of the words "under suspicious circumstances" did not make such a material difference as the noble and learned Lord seemed to imagine. The effect of the two clauses would be to make an offence against a police regulation subject the offender to the severe punishment of transportation for fifteen years; and the Amendment which he intended to propose would have the effect of limiting the punishment for this offence, which was no moral offence, but a mere infringement of police regulation, to imprisonment for a period limited to one year. It appeared to him that the power proposed to be conferred by this Bill upon the Executive Government was in the highest degree objectionable. He believed the noble Earl (Earl St. Germans) would not deny that, for he told them that nothing but a case of overwhelming necessity would justify their Lordships in adopting so severe a measure, and that such a necessity existed. He (Earl Grey) called upon their Lordships to consider how great an infringement of the personal liberty of all the inhabitants of a proclaimed district this Bill involved. During all the hours of darkness—in winter for somewhere about sixteen hours out of the twenty-four—no man was to be allowed to stir out of his house without incurring the risk of transportation for fifteen years. From four or five o'clock in the afternoon till past eight on the following morning, during the month of December, no inhabitant of a proclaimed district in Ireland was to be allowed to set his foot outside the door of his cabin without rendering himself liable to this severe punishment. He might not even venture from home during that time to visit a friend, or to enjoy at any place a few hours of harmless recreation. Nay, he dared not even go to his work in the morning, or return from his work in the evening, so as to gain the advantage of the hours of daylight, without rendering himself liable to arrest at the will of a police constable, and to be kept in confinement in default of proving what no man could prove—that he was out with innocent intentions. If he (Earl Grey) were to act upon his own judgment, he would have proposed the omission of this clause altogether; but as he had heard from his noble Friend to-night that it was absolutely necessary, in the disturbed districts of Ireland, to prevent the population from leaving their homes at night, he deferred—though most reluctantly—to the judgment of the noble Earl; and he was 698 compelled, under such circumstances, to consent that, in the disturbed districts of Ireland, the Executive Government should be armed with the extraordinary power of confining the whole population to their houses during the time he had mentioned. But he must say that no deference to the judgments of others, no arguments he had yet heard, could induce him to consent that the infringement of a regulation of this description—that any offence which was made an offence by Act of Parliament, and which involved no moral guilt—should subject a harmless and unoffending man, who thoughtlessly, or perhaps forgetfully, might violate the law, to be torn from his friends, and consigned, for a period of fifteen years, to a penal colony at the other extremity of the globe. To this severe punishment any might subject himself who sought relief from the tedium of a fifteen or sixteen hours' confinement in a miserable cabin, by merely visiting a neighbour. Was this, he would ask, a fit punishment for so venial an offence? Such an extremity of punishment, as compared with the character of the offence, was so shocking to every feeling of natural justice, that he for one could not consent to the Bill in its present shape. He knew he should be told that this provision was not intended to apply to persons of harmless and unoffending character; but that only those who were apprehended under suspicious circumstances would be subjected to this severe punishment; but that did not remove the objections which he entertained to those clauses as they stood at present in the Bill. It was said by the noble and learned Lord (the Lord Chancellor) that the words "under suspicious circumstances" were to be introduced into the Bill; but they did not, in his opinion, materially alter the portion of it to which he objected. He wished that some of their Lordships would define what "suspicious circumstances" were. He wished any noble Lord would inform him how they were to distinguish between the case of a man who was apprehended during the prohibited hours, and who had left his home on a lawful occasion, and that of a man who was abroad with some guilty object. Let them suppose the case of a man who left home during the hours of darkness to visit a sick relation or friend, and that of another man who, under pretence of a similar object, left home at the same time, in order to join a party of Whiteboys, and who had his blunderbuss concealed in a neighbouring bog. These two men might 699 be apprehended on the same road, and within a quarter of an hour, by the same person; and how were they to distinguish between the man who was innocent, and the man who had left his home with a guilty intent? They might also suppose the case of a man who left home to consult his priest about some pressing family affairs, or on other urgent business, and who, under similar circumstances, might be apprehended; and how was he to establish his innocence? He protested against the adoption of this Bill, which, for the mere fact of a man's being out at night—a fact which implied no guilty intent whatever, but was compatible with perfect innocence, would subject him—unless the accused party could prove his innocence, which as to intent was utterly impossible—to the unreasonably severe punishment of transportation. But he might be told that there was, after all, one means of ascertaining whether a man ought to be punished or not; that it was perfectly true, in the cases to which he had referred, innocent and guilty parties might be arrested under nearly similar circumstances, but that, when the extent of punishment to be inflicted was considered, they might be guided by a man's character. Yes, one man might be known to be a dangerous character—a man of whom it was necessary to get rid, and he would be transported; while a man who, there was every reason to believe, was an unoffending and innocent person, would either be at once discharged, or visited with a merely nominal punishment. But if this was the ground on which they intended to proceed, he begged them to mark how dangerous a principle they were laying down. Would any noble Lord in that House approve a measure which would empower the Lord Lieutenant, if a person was reported to him as a dangerous character and likely to be concerned in disturbances, although no proof of the charge might be adduced, to issue a summary order for the transportation of such an individual? He was sure there was no Member of that House who would not at once declare that such a power ought not to be granted to any Government. If they really intended to transport men because their characters were bad, he thought it would be much better to do so openly and avowedly, instead of convicting them of a most venial offence, for which they were nominally punished, and punishing them really on account of their character. He considered that if this 700 measure was passed in its present form, a most tremendous and unjustifiable power would be given to the Executive. But it might be said that the Judges, by whom the sentence would be determined, would be able to ascertain the characters of the accused parties. But such investigations could not be conducted publicly; and while, on the one hand, it would not be difficult in Ireland for a person who was really guilty to bring forward witnesses who would give him an excellent character; on the other hand, if it was determined that an innocent person should be sacrificed, it would not be difficult to render his guilt apparent. It must be remembered that character was merely a matter of opinion, and the province of Judges was not to try questions of opinion, but matters of fact. Under the proposed law, any man, however harmless and innocent, might, on the secret statement of a person who might be misinformed, perhaps malicious—made without the accused person having any opportunity of contradicting it—be condemned to the very severest punishment; and his family, and all dependent upon him, might be involved in the deepest distress. What were the grounds of suspicion on which a man was to be subjected to this punishment? Was it to be deemed a suspicious circumstance that a man who had been treated with extreme harshness by his landlord, had expressed a strong feeling on the subject? Was it to be considered a suspicious circumstance that a man who had been the victim of the clearance system, which he (Earl Grey) was afraid was still continued in Ireland, should have expressed himself with some warmth towards his landlord? Was such a man to be suspected of a connivance at those agrarian outrages which were committed in Ireland, or of being connected with those midnight legislators who took upon themselves to redress grievances in that country? But although a man might be entirely innocent of any connexion of this kind, or of any intention to injure his landlord, what would be the effect of the measure now before them? If a man had been ejected by his landlord from a small farm which he had greatly improved, and for which improvements he obtained no compensation when he was turned out—if he were made a victim of the clearance system, which had not as yet been discontinued in Ireland, and expressed himself strongly in consequence of this treatment, would not those be called "suspicious circumstances" against the 701 man who had been so oppressed? Might he not be strongly suspected, and perhaps not without reason, of allying himself with midnight legislators, and thus, the man being innocent, might, under those "suspicious circumstances," be transported, because he had been the victim of gross oppression and tyranny? If he were treated as he (Earl Grey) had described, and gave vent to those feelings which would naturally arise in the breast of any man who had been so dealt with, that would be reckoned ample reason for suspicion, and because he had been the victim of oppression he might be transported. He (Earl Grey) would ask, also, upon whose report a Judge was to determine whether the character of an accused person rendered it necessary that the punishment of transportation should be inflicted? He hoped not upon that of the police; for he was persuaded that a power of that kind was liable to be fearfully abused, and to lead to most cruel oppression. It was no torious that, in former times, the powers possessed by the police were abused for their own purposes; and if such a system were tolerated, he had no doubt that similar abuses would again occur. The Lord Lieutenant had no better means than the Judges possessed of ascertaining a man's character; and if a person was hurried from the prison to the dock, he had little chance of establishing his character, or of disproving the charges made against him, though he might be innocent. How was a man sentenced under this Bill to appeal to the Lord Lieutenant for redress? He was therefore opposed to so severe a sentence being fixed for the commission of such an offence; and he doubted whether such severity was not likely to defeat their object. What, he asked, was at the bottom of this system of agrarian outrage? They all knew that, unfortunately, it was the rooted animosity of the people to the law, and the administrators of the law. From long ages of past misgovernment they had been taught to regard, until lately at all events, with too much justice, the law as their enemy. They were told upon high authority, that there was one law in Ireland for the rich, and another for the poor. They did not forget that state of things—they knew that formerly, if not now, the law existed not for the protection of the humbler classes, but to oppress and degrade them; and unfortunately they had not, with the change of circumstances, unlearnt the lesson 702 which long lessons of misgovernment had taught them. Before they could enact any permanent improvement in Ireland, they must eradicate that lesson from the minds of the Irish people, and must teach them that the law existed not to coerce and oppress them, but to protect them and promote their welfare; and he would ask whether they were likely to be taught that lesson by such a measure as this? He, therefore, should propose, that at the end of the 16th Clause these words should be added—And upon being convicted thereof shall be liable to be imprisoned, with or without hard labour, for any term not exceeding one year.
The EARL of WICKLOW
said, his noble Friend appeared to have made one fundamental mistake in the whole of his argument. He appeared to treat this Bill as directed against the peasantry of Ireland; whereas it was intended for a directly opposite purpose—for their protection and security. He admitted its apparent inequality of justice, and that the punishment appeared enormous for so small an offence; but why had such a measure been so repeatedly enacted? Because it was found impossible to carry the law into effect without some such provision; and often as it had been enacted, he had never yet heard a single instance of one of those hardships which, his noble Friend thought would be the inevitable consequences of it. But he would appeal from the speech of his noble Friend to the speech of the late Earl Grey, when he introduced the Coercion Act of 1833. That noble Earl depicted in strong terms the harshness of its provisions; but he drew an inference very different from that which had been drawn by the noble Lord, and was quite sure that the Bill of 1833 contained much more stringent provisions than the proposed measure. He should, therefore, support the proposed Bill.
said, there was no such provision in that Act, but there was one making the intimidation of witnesses a transportable offence.
The LORD CHANCELLOR
said, his impression was, that the Act of 1833 did not contain a provision similar to the one in question.
The EARL of WICKLOW
But it contained one infinitely more stringent, and that Bill was at least efficacious.
said, that as allusion had been made to the Act of 1833, and as he had, from the circumstances of his being 703 at that time Solicitor General, and there being no law officer of the Crown in Ireland in Parliament, assisted in passing that Bill, he thought it right to assure the noble Earl (the Earl of Wicklow) that he was mistaken in supposing that that Act contained any such provision as this. The 22nd section of that Act made it a misdemeanor to be out at night an hour after sunset, and before sunrise; but it made it simply a misdemeanor, without allotting to it any particular punishment. [The Earl of WICKLOW: There is a subsequent clause.] There was a subsequent clause, making it a transportable offence to intimidate a witness or a juryman; but that was an aggravated offence, properly made so punishable. The other was simply a misdemeanor. The Amendment of his noble Friend contemplated introducing the same distinction into this Bill; making the offence of being out at night simply a misdemeanor, punishable by imprisonment; whilst at the same time it would allow the aggravated offence of intimidation of a witness or juryman being punished, as it ought to be, more severely. He was as anxious as any noble Lord to remedy the existing state of things: but he was very much afraid that this Bill was not the proper course. Now, upon the 16th Clause an indictment might be framed to this effect:—that A. B., &c., of &c., was, on the — day of —, an hour after sunset, found upon the Queen's highway out of his dwelling-house under suspicious circumstances, and not upon his lawful occasions, contrary to the Statute in that case made and provided. That would be a good indictment under this clause; and a person who was out of his dwelling an hour after sunset would come within the clause, if he were out upon some occasion not strictly lawful, although not of that kind which this measure had in view: as, for instance, he might be out poaching, or on some little affair of gallantry. Now, only let the House consider what the punishment was. It was the highest in the law of England next to capital punishment. It was a punishment which had indeed been substituted for capital punishment in many cases: such as horse-stealing, forgery, and the like. By this Bill, then, the same punishment was to be inflicted upon a man for the venial offence of being out at night, as upon a man who had shown himself incapable of social duty. He did not think this a proper cure for the malady which they all deeply deplored, and which consisted in not being endued with a respect 704 for the law. The respect of the people for the law would not be increased by making the law cruel and unjust. He did trust that, upon consideration, their Lordships would find that the object which they had all in view would be more effectually gained by conceding the Amendment of his noble Friend (Earl Grey.) He admitted that the object of preventing the people being out at night in disturbed districts was a very desirable one. The opinion of Mr. O'Connell had been already referred to. Now, whatever might be the errors into which that hon. and learned Gentleman had fallen, and which he deplored as much as any one, it could not be denied that he had always strongly discouraged the practice of marauding parties going about through the country. He repeated that he thought it very desirable that means should be taken to put down that offence; but he thought that that could best be accomplished by making the punishment more proportionate to the offence.
entirely agreed with his noble Friend who had moved the Amendment, and with his noble and learned Friend who spoke last, that this matter was worthy of the greatest attention—that it was a point of great importance; and he was sure it had not been taken up from any factious, or what was called a party motive. He owned that at first he had had some doubts on the subject; but he meant no disrespect to the arguments of his noble Friends, or to the scope of their purpose, when he said that the fullest consideration when he had been able to give to the subject had ended in his having an opinion in favour of the Bill, and not in favour of the Amendment. His noble Friends, as it appeared to him, had been led away by their feelings with regard to the coercive provisions of the Bill, and had not sufficiently attended to what really were the powers which were about to be bestowed by Government and Parliament on the courts of justice. His noble Friend (Earl Grey) had assumed—and in doing so had entirely begged the question—that the offence which was to be visited with transportation was what he was pleased to call the venial offence of being out at night after dark. But that was not the case. It was not the venial offence of being out after dark which was to be visited with transportation; it was the offence, which he (Lord Brougham) did not call venial, of being out at night under suspicious circumstances—of not being out 705 upon a lawful occasion, and therefore unlawfully out at a time when the Legislature had declared that the public security required that the people should not be out at night under suspicious circumstances, and upon unlawful occasions. That was the offence; and here he must stop to say one word respecting what his noble Friend (Earl Grey) had repeatedly urged in the course of his speech—namely, that this was no moral offence. He (Lord Brougham) never liked to hear distinctions taken between moral offences and what were called legal and illegal offences. It was the duty of every good subject to hold that when the laws of his country prohibited certain acts, those acts so prohibited became offences and immoral things in the case of any man who committed them; and if you say that such and such offences are not moral offences, and that such and such others are immoral, you tend very much to break down the securities you have against offences, and to diminish the public dislike for crime, and the public reprobation of disorder. He protested also against its being said that the offence in question was necessarily in all cases to be visited with the punishment of transportation for 15 years. This was not the fact. The court before whom the case was to be tried was to be armed merely with the power to examine into all the circumstances of the case, and award a punishment not exceeding transportation for fifteen years; and, in order to make it more certain that this power should not be abused, and that no man should be unjustly, thoughtlessly, and indiscriminately tried, it was proposed by a judicious Amendment, which had been introduced that night, that, instead of being sent before a local magistrate, all such prisoners should be tried before a Judge of Assize, or a Special Commission. And if upon trial it should be found that the offence was not an aggravated one, the court would have the power to impose a fine of 5s., or to award a week's or a month's imprisonment, in place of the extreme punishment of transportation for 15 years, which his noble Friends had always assumed to be the minimum in place of the maximum.
Well, that is the shortest term for which you can send a man abroad. His noble and learned Friend (Lord Campbell) had talked of the severity of transportation for this offence. 706 But did his noble and learned Friend forget that even under the Act of 1833 a man might be imprisoned for three years in a common gaol for the venial offence of being found out of his own house after dark, and that was not much better than transportation. But it was said why not define the circumstances which constituted the offence? Because they could not be defined. Why, the being out at night with fifty or sixty people might be no aggravation at one time, and it might be at another. When there was a rebellion in a district, and a mob of fifty or sixty people assembled together after dark, that would be a grievous aggravation. It might be no aggravation for one man to have a bludgeon in his hand; but if there were fifty people all with bludgeons in their hands, it would be a very aggravated offence. Or, suppose a man was found out of his house after sunset in a proclaimed district with a concealed pistol, that would be a great aggravation; and if he (Lord Brougham) were the Judge who tried the case, he would take that into view in reckoning the punishment. A noble Lord had just reminded him, that under the Whiteboy Act it was an offence to be found with a shirt over one's coat; and no doubt, in a peculiar state of society, this did become an offence. In the course of the discussion allusion had been made to the grievances of Ireland, and the necessity for remedying them. When the proper time came, he should be ready to listen to any suggestions for remedying those grievances; but he solemnly protested against mixing up these with the present question, for they had no necessary connection with each other; and, if mixed up together, the result would only be to lessen the abhorrence which all felt for the curse which desolated Ireland, to comfort the wrongdoer, and dishearten the peaceful subject. On the whole, he felt it to be his duty—though a very painful one—to support the measure; and in doing so so he felt that he was giving his support to a measure infinitely less stringent than that which he had himself introduced into that House personally for the acceptance of their Lordships; for, although it was true that there was a superior degree of severity enacted in this Bill which was not in the former, in so far as it made a misdemeanor a transportable offence, yet it was undeniable that the court-martial clauses in the former measure were much more severe; and, though these clauses had been much objected to, he had 707 persisted in adhering to them, and the result had justified his anticipations, for not one single man had been tried under those court-martial clauses, the terror produced by seeing the Government resolved to do its duty in protecting life and property having rendered it unnecessary to put them in operation.
The MARQUESS of CLANRICARDE
wished it to be understood distinctly that in voting for the clause as it stood, and against the Amendment, he did not mean to express his approbation of the Bill generally. He thought it extremely ill-drawn and ill-contrived; and if its duration were not very much modified, he should reserve to himself the right of voting against it upon the third reading. But if Ireland was to have a Bill in the nature of a Coercion Bill—a temporary Bill, in which view alone he supported it—that invested extraordinary powers in the Government beyond the Constitution, he must certainly support the clause, for if it were thrown out, there was nothing in the Bill to arm the Government with powers beyond the common and permanent law. He understood the Government did not pretend to call for the powers of this Bill, except for a limited time, in order to put an end to a most dangerous state of things; and in this view he supported the clause. Was it, he would ask, teaching the people to respect the law to let them, year after year, see that by combinations they could defeat the law, and that those who were inclined to observe it might be murdered or injured with impunity by those who so combined? The Legislature must show there were powers in the Constitution which from time to time might be exhibited with extraordinary rigour, and that the legitimate authorities were able to vindicate their power when necessary. His noble Friend who moved the Amendment laboured, throughout all his speech, under a mistake. When illustrating his argument, he drew on his imagination for a picture of what he called a victim of "suspicious circumstances," and it was always the same picture, of a man ejected from land, and this man directing his mind towards vengeance against his landlord. He regretted that the returns he moved for on a former evening, were not on the Table—if they were, he could prove to the noble Earl that landlords were not the victims of the assassin, so much as the honest and unoffending peasantry. The noble Lord who referred to the late attempt made on the life of Sir David Roche, might 708 have quoted from a paper of the same date a still more horrible and barbarous attack on an honest industrious peasant—one who had not the same means of defence as Sir David Roche. This poor man was attacked in his own house, horribly maltreated, and sworn to quit land he had occupied for fifty years. Here there was no question of ejectment; the land he was sworn to give up possession of was not claimed in any way by the miscreants who attacked him; but those who were acquainted with the state of the country would ask no better proof of the man's honesty than this murderous assault. He was not assaulted because he took land over the head of others—but because he had honestly resisted all attempts to induce him to join the illegal combinations that were now the curse of the country. The taking away of arms was another class of offences exclusively directed against the lower orders. Some noble Lords had argued upon this measure as if it were intended to be the law all over Ireland; but they must recollect it was only for those districts in which no wise or honest man would be out after sunset. It would certainly be much better in his opinion if the transportations were limited for seven years; but the best effects of this measure would be, that it would inspire the well-disposed honest people of the country with confidence in the ruling powers, and the evil-doers with terror. If the Government had answered in a firm tone at an earlier period to the remonstrances made to them on the subject of agrarian crime, there would have been no cause for this Bill; but they had shown too much vacillation, too much reliance upon what was called the ordinary course of the law; and it had been made a boast, more than once, that the ordinary law had been maintained in Ireland. The language, in answer to those remonstrances should have been, "We wish to repress crime if we can under ordinary circumstances; but let it be known to honest men they shall be supported, and to dishonest men they shall be punished by a rigour beyond the power of the common law." If that language had been held at the proper time, a great deal of crime would have been prevented. Under present circumstances, the clause now under discussion was the clause alone that would make the Bill of any value.
§ LORD COTTENHAM
would give his support to the Bill, if a limitation was given to its existence, because he thought this was nothing more than an extraordinary expedient 709 to meet an extraordinary occasion. He understood that the Amendments proposed limited the operation of the Bill to a certain period; and he was glad to hear that such a proposal was favourably received with regard to the clauses which made it a crime for a man to be out between sunset and sunrise, unless he could give a satisfactory account that he was not out for an unlawful purpose. It was undoubtedly a great restriction upon the liberty of the subject, for him to be compelled, under a penalty of transportation, to remain in his house during these hours; but still, from what he had heard of the state of Ireland, he was not disposed to say that these restrictions were, in many cases, imposed unnecessarily. The present was a measure of precaution, in order to prevent persons from perpetrating crime; and it appeared to him that the punishment to be inflicted for a violation of it must be limited by the consideration of what was necessary to enforce it, and you would not be justified in carrying it further. It was impossible to deny that if this Bill passed, and a proclamation came from the Lord Lieutenant, that a man who was out of his house before or after a certain hour would be guilty of an offence: for it was an offence to violate the law, and to disobey an Act of Parliament. But he might have no criminal intentions connected with the offences under this law, and thus this offence was capable of every possible gradation. The man might be almost innocent, or he might be very guilty. His noble and learned Friend (Lord Brougham) considered that a great improvement had been made by the introduction of the words "under suspicious circumstances," into the measure. He (Lord Cottenham) approved of the clause as it stood; but at the same time he must observe, it would be extremely difficult for a man to show he was out upon justifiable and lawful grounds; and this difficulty constituted one of the greatest objections which he felt to the Bill. He believed, however, that no man convicted under this Bill would ever be transported, because the Judges of Ireland would not exercise their power, under the circumstances, to the fullest extent. If men were transported under this Bill, it would be because they were persons whom it might be thought expedient to get rid of on account of their character in other respects; but if they were not transported at all, there could not be a greater wrong than to have 710 the power. The terror of it, it was said, would produce a good effect—an argument which might induce their Lordships to grant any power that might be asked for; but the power given in the Bill of transportation ought not to be given unless it was intended to be exercised. And although he thought the words "under suspicious circumstances" were properly introduced, he contended that what constituted a suspicious circumstance ought to be designated. He thought it would answer all the purposes of the Bill, in suppressing outrage in Ireland, if a man being out of his house before or after the hours, was convicted under this clause, was detained in custody—he cared not where—for a given time; but he thought the term suggested by his noble Friend (Earl Grey) was too short. The period which he proposed of one year ought to be extended to two or even to three years. This lengthened imprisonment would operate to prevent outrage and crime; but he was perfectly satisfied that so severe and disproportionate a punishment, for such an offence, as transportation, would defeat its own objects, and shock those who wished punishment to bear some proportion to the offence.
§ LORD MONTEAGLE
claimed to possess a little more knowledge of the position and circumstances of Ireland, with reference to this matter, than either the noble and learned Lord who had just sat down (Lord Cottenham), or his noble Friend who moved the Amendment (Earl Grey); and with this knowledge, nothing but the strongest sense of duty could have brought him to support the measure now before the House. If he erred in supporting a measure which was objected to as unconstitutional, and stigmatized as severe, he had the good fortune of erring with some of the best and wisest men that Ireland had produced those who were most attached to popular institutions, and most strenuous in the defence of civil liberty. He could not approach the consideration of the question as if this was a Bill which had now been proposed for the first time. He would remind the House of the Insurrection Act. He remembered that Lord Plunkett, a warm friend of liberty, defended the Insurrection Act. Not only when in office did that noble Lord propose it, but out of office he warmly justified and maintained it: and his (Lord Monteagle's) late lamented friend, Sir John Newport, who was ever foremost in defending Irish 711 interests, took the same course, not merely in office, but in opposition. With a generous tone of justice, they stood forward to share the unpopularity and the responsibility of a Government that had performed its duty towards the population of Ireland; and they gave to an adverse Ministry the same strenuous support which they would have given, on such a measure, to their own friends. But the greatest name of all remained to be mentioned. He (Lord Monteagle) knew with regard to this very measure, that at the height of his popularity—nay, at the hazard of his life—Mr. Henry Grattan, the creator of Irish independence, the supporter of Irish liberty, the friend and leader of the people of Ireland, and of the privileges of the Irish Parliament—had no hesitation in giving his uncompromising support to a measure infinitely stronger, more unconstitutional, and more repulsive to all the doctrines wisely laid down for ordinary occasions, than the present. Their Lordships were to consider that the Bill they were now called upon to discuss was not to be perpetual; that it was an exception to the ordinary course of legislation: and that they were dealing with an exceptional case. Every day added to the catalogue of crime to which his noble Friend had alluded. Their Lordships no doubt felt a reluctance in referring to this subject, and still more to the impunity with which crime was perpetrated in Ireland; but he would, nevertheless, take the liberty of calling their Lordships' attention to that subject. He wished to remind the House that that impunity did not arise from any indifference on the part of the Irish people with regard to the crimes committed. No such indifference existed among them; but they were prevented by intimidation from aiding in the suppression of these crimes. It was said that the Irish people did not come forward to give evidence or to act as jurors; but since the days of Sir John Davis, who told them that no people were greater lovers of justice than the Irish people, down to the present time, they were never accused of having a desire to encourage the perpetration of crime; but when they asked them to come forward at the hazard of their lives, and of everything that was dear to them in life, they expected more than could be got from any individual. The upper classes were comparatively safe in exerting themselves for the suppression of crime, but the poor were not safe; and he therefore would say, that the present Bill was 712 properly entitled, "A Bill for the Protection of Life and Property," because there was at present no adequate protection for either in that country. His noble Friend declared that he had no objection to the punishment being fixed under this Act for one year, or for two or three years. But he would put it to the House, if a punishment of three years were to be imposed for such offences, what became of all the arguments used by his noble friends, or of their alleged love of justice? If the penalty inflicted by the Bill, as it at present stood, were so very unjust, and if in its stead a punishment of imprisonment for three years were to be a proper regulation to adopt, what then became of nine-tenths, ay, or of ninety-nine hundredths, or of nine hundred and ninety-nine thousandth parts of the arguments of his noble Friend in favour of the Amendment? But he would meet the proposition of his noble Friend in respect to the substitution of punishment, by asking which penalty was more likely to be effectual? He would reject the proposal of his noble Friend as one which, while it was infinitely more cruel to the individual—["No, no"]—he would maintain that an imprisonment for three years would be more cruel as a punishment for the offence, than the other penalty proposed to be adopted, while it would be also less effectual as a preventive of crime. The present Bill was the mildest and the least unconstitutional measure of the kind that had ever been submitted to Parliament to meet such an evil; and in corroboration of this fact, he might observe, that the Bill which had been supported by Mr. Grattan, authorized the trial of parties offending against its provisions before a bench of magistrates, and without the intervention of a jury. Surely that was a more objectionable enactment than the present Bill, which fixed the trial to take place before a Judge of the land, and with the aid of a jury. But another important consideration was, that the man who was disposed to outrage would, after an imprisonment of three years, come out a perfect adept in crime, to be again let loose among his former associates: and, taken in this point of view, it was absurd to suppose that transportation would not be a better remedy than imprisonment. Such a person, by being removed altogether from his guilty associates, would cease to be mischievous by his removal to a convict settlement. He did not pretend to say that, on many occasions, when Insurrection Acts were in force in 713 Ireland, there might not have been cases of abuse under them. In fact, it was scarcely possible to imagine the administration of any law of great severity without some abuses taking place; but he would say this, that having heen connected with a county in Ireland in which Insurrection Acts had unfortunatey been in force during nearly the whole of the periods of their existence in that country, he had never heard of a single case there in which the powers conferred by these Acts had been applied to improper purposes. While he supported this Bill—a measure intended to be local in its application, and temporary in its duration—he felt bound to say that he would be sorry to trust to an Insurrection Act, or to any such measure, for improving permanently the state of Ireland. They should look to a totally different class of measures to effect that object; but these measures of improvement ought in his opinion to be kept totally distinct from the present Bill, because, if both were brought forward at the same time, they would raise the inference in the minds of many, that the acts of outrage which they wished to suppress had some justification, or were connected with evils which it was in the power of Parliament to prevent. He had no inclination to support any measure calculated to diminish the liberty of the people; but feeling, as he did, that the greater punishment was more likely to prove the better remedy for the evil, he wished, in giving his vote against the Amendment, to guard against misconception, and at the same time to take his full share, as an individual Member of Parliament, of the responsibility of such a measure.
§ LORD LANGDALE
said, the greater part of the noble Lord's speech, in opposition to the Amendment, referred to the principle of the Bill, to which nobody objected, and seemed to be founded on the supposition that the Amendment had been brought forward with the intention of obstructing the measure, which none of those noble Lords by whom the Amendment was supported had any intention of doing. There was no question as to the principle of the Bill; and he hoped they had not got to such a state of things, that any attempt to improve a Bill was to be regarded as an attempt to obstruct its progress. Had any one doubted the necessity of employing an extraordinary remedy for the evils against which they had to provide? Under the circumstances in which Ireland was placed. 714 it became necessary to take certain precautions, and to make it an offence to appear out of doors between sunset and sunrise on the following day. Nobody doubted the necessity of that precaution, or that in adopting it they were under the necessity of making that an offence which in itself, and without regard to this measure, would be an act perfectly innocent in its nature. It was in itself no offence to be out of doors during these hours; but the liberty of being abroad at such times was considered to facilitate the commission of offences of a dangerous character, and the Legislature, therefore, thought proper to adopt the provisions of the present Bill, and to make the fact of a person appearing absent from his home after nightfall an offence. Now, it was plain that such an offence admitted of every degree of aggravation. It was an offence, or a violation of the law, to do that which the law forbids to be done; but still there might be such a justification for a person being absent from his home, that the offence would be of the most trivial kind; whereas, on the other hand, it might be aggravated to the greatest extent. The question then arose, was there to be one law and one punishment, subject alone to the discretion of the Judge who tried the case, for these different degrees of offence? It was said that the punishment of transportation for seven years—and he was glad the penalty had been reduced to that extent — was the utmost that could be imposed under the Act, and that any degree of punishment under that was to be left to the discretion of the authorities. Discretionary law was not very advisable under any circumstances; and the Amendment of his noble Friend simply was, that, if there were no circumstances of aggravation, they were not to exceed one year's imprisonment. But his noble Friend never said that if there were to be great aggravation of the offence, they might not go the whole length of the proposed penalty. The question was merely which course was best to adopt, and which was most calculated to correct the state of Ireland. He believed they all concurred in the same object. There was no disposition shown on the part of any noble Lord to obstruct, or to place impediments in the way of the measure which the Government had thought right to bring forward; but his noble Friend and others were of opinion that the Government had not selected the mode of punishment which would be best on all occasions: and agreeing 715 in that opinion, he should vote for the Amendment.
§ EARL GREY
said, he would at once adopt the suggestion of his noble Friend, who thought that one year might be too short a period of imprisonment, and he would make it two years. He wished to be permitted to add, that among all the noble Lords who had spoken on this question, not one had attempted to deny that every variety in degree of offences might be committed under the Act.
The LORD CHANCELLOR
said, a noble Lord had reminded him, that it did not appear to be generally known whether the Government had given up the punishment of fifteen years or not. He begged to state that such was the fact, and that seven years had been adopted as the extreme penalty.
§ The MARQUESS of LANSDOWNE
said, he would also wish to know from the noble Earl what was the limit intended to be given to the operation of the Act? When they were about adopting a measure of such a character, however necessary it might be, it was most important that a limit should be fixed to its duration.
§ The EARL of ST. GERMANS
said, the noble Marquess was aware that the clause as printed fixed the duration of the Act to five years; but both he, and, he believed, his noble and learned Friend (the Lord Chancellor), would not have any insuperable objection to fixing its duration for three years, and the end of the then existing Session of Parliament.
§ The EARL of COURTOWN
expressed a hope that the Government would persevere in fixing the continuance of the Act at five years.
The EARL of WICKLOW
said, the Bill would meet with great opposition in another place, and it might be impossible to renew it hereafter. He thought, therefore, that they should put in the words, "to the end of the next Session of Parliament," and not "to the end of the then Session of Parliament."
§ LORD COTTENHAM
said, the Government, knowing when the Act would terminate, could apply for its renewal, if thought necessary, in one Session, as well as in the Session after it.
§ LORD REDESDALE
suggested, that a fixed day, say the 1st of November, 1849, should be named in the Bill, because circumstances might occur to bring the Session of Parliament to a sudden termination, 716 which would prevent the subject being taken into consideration.
§ The EARL of LONSDALE
begged to remind the House that they were going away from the question immediately before them.
§ House divided. For the Amendment: — Contents 7; Not Contents 38: Majority against the Amendment 31.
§ The MARQUESS of LANSDOWNE
then moved that the operation of the Bill be limited to three years, ending the 1st of October, 1849.
The MARQUESS of CLANRICARDE
said, he thought even three years too long a period; and if the Amendment of his noble Friend were not agreed to, he would, on the third reading, vote against the Bill altogether.
§ The EARL of ST. GERMANS
said, it was of importance that the House should be as unanimous as possible on the subject, and he would therefore consent to the Amendment.
§ Amendment agreed to. Bill passed through Committee. House resumed.
§ House adjourned.