§ THE EARL of EGLINTON
said, he felt he owed an apology to their Lordships for bringing under their consideration a case which was somewhat personal to himself; but as the facts were at present very imperfectly known to the public, he thought it expedient that it should be better known in all its details. In bringing forward the case of Mr. Kirwan, he need scarcely say that he was actuated by no feeling of hostility towards the noble Earl who had succeeded him in the Government of Ireland (the Earl of St. Germans), with whom he had always been on terms of friendship, and certainly with no feeling of ill-will or rancour towards the gentleman whose conduct was the subject of the inquiry. He brought the case forward partly for the purpose of truth, to show that his (the 2 Earl of Eglinton's) own conduct in this transaction had been right and proper, but still more for the purpose of preventing such inexpedient acts of the Government being again renewed. The case was one arising out of the late general election, in which, he need not remind their Lordships, and in Ireland especially, there were a great many cases of not and turbulence, even more, perhaps, than usually occurred on such occasions. The circumstances in which Mr. Kirwan was concerned, took place in connexion with the election for the county of Mayo, at a place called Ballina, where that gentleman was the magistrate deputed to keep the peace on the occasion in question. He (the Earl of Eglinton) should be compelled to read at some little length the case which was made out in the public papers; but as those papers contained the only evidence which he had of the part he had taken in those transactions, it was absolutely necessary that he should read some extracts from them. He had first had his attention called to the events at Ballina by a letter written by Mr. Kirwan to the Under Secre- 3 tary at Dublin Castle, dated the 24th of July last. In that letter Mr. Kirwan said—I have the honour to acquaint you, that about six o'clock on yesterday I escorted fifty-three freeholders to the quay, within about one mile and a half from the Court-house. As we were marching through the town we were pelted with stones, one of which struck a private of the 3rd Buffs; several hit the sub-inspector of police, and one the hat which I wore. The attack was instantaneous, and never anticipated. I read the Riot Act, and ordered the men to prime and load; and at the most imminent risk of my own life, in order to avoid the shedding of a drop of blood, I rushed among the mob, and remonstrated with them, and fully explained the fatal consequences that would ensue if they threw another stone, The Roman Catholic clergymen did everything in their power to preserve the peace; and I am truly happy to tell you that, without allowing the military to fire (except one shot, which I am informed went off by mere accident), I safely embarked the fifty-three voters on board a steamer which awaited them. The escort only consisted of sixty men, rank and file, two mounted police, and a sub-inspector (Mr. Fox), whose conduct I cannot command words to praise as he deserves. We all acted with the greatest possible coolness, forbearance, and humanity, or otherwise I should have this day to report to you, I am sure (if spared by Providence, and able to do so), the deaths of several inhabitants of Ballina. I have to add that Mr. Howley, D.L. and J.P., of Belleck Castle, was appointed by the sheriff one of my assistants; and a better magistrate I never had the honour of doing duty with. His views and mine perfectly coincided, and he has been continually acting since he received his deputation. The sub-inspector and I every night patrol the town, and in truth we have had but little rest since my arrival here. I trust that the town will be tranquil in a few days, after the Members will be declared; and you may rest assured I shall do everything in my power to preserve the peace. I refer you to my report of the 20th instant. The commanding officer, sub-inspector, and I perfectly agree in opinion as to the force not being sufficient to preserve the peace, &c. From the great excitement that prevailed, we were obliged to take a house for the military, and remove them from the places in which they were billeted. I should say that the mob consisted of at least two thousand persons, and although a magistrate for near nineteen years, and of very considerable experience, I never had a more arduous duty to perform than on yesterday.The Under Secretary received another letter from Mr. Kirwan, dated the 29th of July, in which the latter said—Previous to leaving Ballina I made further inquiries on oath, and find that one of the privates of the 3rd Buffs went out of the ranks four or five paces, without being ordered, took aim at a man contiguous to me, and fired. The ball hit the ground or wall, but very luckily no person was hurt. Several of the party of military under my command appeared to be undisciplined recruits. While patrolling the town with the constabulary at night, a pane of glass was broken at 4 Moran's house, and a shot was immediately fired out of the window, and hit two children. Mr. Howley, D.L. and J.P., the sub-inspector, and I, accompanied the constabulary, and it is wonderful that we escaped injury. A better officer or party of police I never commanded. I am sorry I cannot say this much of the military, whom I had enough to do to prevent firing upon the mob, amounting, it is now generally supposed, to at least three thousand persons. Some of the stones were thrown over the houses from lanes and yards, and if the military had fired (contrary to my orders) while I was, at the imminent risk of my own life, dispersing the infuriated assemblage, not only would I be shot, but all the military and freeholders whom I was protecting would be surrounded, and their lives immediately afterwards sacrificed; but several of the inhabitants would suffer also. 'Prudence is the best part of valour.' With so small a force (not even one dragoon), I say, without fear of contradiction, no magistrate ever yet performed so arduous a duty without allowing one life to be taken, or one person to be seriously injuredAfter reading these two letters, he (the Earl of Eglinton) supposed that something heroic had been performed by Mr. Kirwan of Ballina, and he knew he had the power of bestowing on Mr. Kirwan the honour of knighthood, or of making him a privy councillor, and after reading those letters the honour would not have been entirely thrown away. The face of matters, however soon changed. There were rumours spread abroad that the election at Ballina had not been so well managed as had been represented, and there were some singular complimentary letters published which had passed between the Roman Catholic priests and Mr. Kirwan, and the inhabitants complained. He (the Earl of Eglinton), therefore, intimated to the Under Secretary that he should write to Mr. Kirwan, requiring some explanation of the reports which were in circulation, and asking him whether a letter which had appeared in the papers, dated the 24th July, and addressed to the Roman Catholic clergyman of Ballina and its vicinity, was correct. That letter, written by Mr. Kirwan to the Roman Catholic clergymen in question, was in these words:—Ballina, Six o'clock, p. m., Saturday,July 24, 1852.Reverend Gentlemen—I take the earliest opportunity of returning you my most sincere heartfelt thanks for the able assistance you have given my most sincere friend, Mr. Howley, of Beleek Castle, D.L., J. P., and me, in preserving the peace here since my arrival. I am at a loss for words to enable me sufficiently to eulogise the humanity and bravery which you displayed when that most efficient and kindhearted officer, Mr. Fox, sub-inspector of constabulary, some of the military, and myself, were struck with stones by an excited multitude of persons, while I was escorting through 5 the town to the quay fifty-four gentlemen, who voted (I am informed) for Colonel M'Alpine, and when I was under the painful necessity of reading the Riot Act, and giving orders to prime and load but not to fire; and were it not that you rushed with me among the people, and commanded them to disperse peaceably, at this most critical period the most deplorable consequences would doubtless have ensued. But, blessed be the Almighty God! I shall return to my station at Boyle in a few days, without allowing any serious injury to be done to either person or property; and I trust that I have impartially discharged my duties to Her most gracious Majesty the Queen and the public, to whose judgment I most respectfully submit, although my conduct has been censured by a few 'individuals.' However, 'Vox populi vox Dei.'"Mr. Kirwan returned an answer, dated "Boyle, 2nd August, 1852," to the Under Secretary, in which he admitted that the letter bearing his signature and published in the newspaper was authentic—but there was a considerable change in the tone of his language. He added—If I have erred in writing the letter of thanks, I am truly sorry for it. ('Every man is liable to err.') In consequence of being grossly calumniated, I used the Latin quotation, intending to convey that I did not fear the result of my conduct being publicly inquired into, nor do I; but if the phrase does not convey my meaning, I can truly assure you I did not read a Latin book these twenty-one years.Mr. Kirwan then concluded as follows:—I am very much fretted lest my letter (as published) has displessed his Excellency; but when he will know how I acted on the most trying emergency any stipendiary magistrate in Ireland (I believe) was placed, I most earnestly hope and pray to have his approbation of all my conduct; and to his Excellency's humane judgment I now submit with confidence, and in his mercy, if I have unintentionally erred, in any manner whatever.The next document was a memorial from a considerable number of the inhabitants of Ballina, complaining of the conduct of Mr. Kirwan and the Roman Catholic priests, and stating the grounds on which they objected to his conduct. First, they stated—That the neighbourhood in and about the town of Ballina has been kept in a state of great political excitement for the last fortnight, in consequence of the elections which were about taking place in the county of Mayo, and also in the county of Sligo, from whence Ballina is separated by the river Moy. That the nomination for said two counties took place on the same day in Castlebar and Sligo respectively, and that for some days previously thereto, and also during the holding of said elections, the grossest intimidation and acts of violence were systematically put in practice against all the voters of Colonel M'Alpine, who was the Conservative candidate in the county of Mayo, and in a few instances against Roman 6 Catholic voters who had either determined to remain neutral, or to exercise their franchise in favour of the Conservative candidate. That large mobs of boys, men, and women, continued to parade through the streets of Ballina and Ardnaree, who insulted the inhabitants by groaning and calling them the most opprobrious names, and that such mobs appeared to act in concert, and to be excited to the highest degree by reason of the posting of inflammatory placards through the said towns of Ballina and Ardnaree, in which Colonel M'Alpine, the Conservative candidate, and his supporters were by implication identified with and held responsible for the riots which took place at Stockport. That such placards were publicly distributed from the carriage of a magistrate of this neighbourhood, on his return from the nomination of candidates at Castlebar, on Tuesday the 20th instant, by three or four Roman Catholic clergymen, who accompanied said magistrate through the streets of Ballina, while distributing said placards. That shortly after the arrival of the said J. A. Kirwan, one of the local magistrates, William Mally, Esq., having been informed that the mob of the town were becoming very riotous, and were using threats and violence towards some of the inhabitants, at once applied to the said J. A. Kirwan to accompany him into the town, in order, by the timely arrest and punishment of the ringleaders, to suppress the mob; that the said J. A. Kirwan positively refused to assist the said William Mally in calling out the police, or in dispersing said mob, but, on the contrary, went into the house of the sub-inspector of police, which is situated in the outskirts of the town, where he continued for the remainder of the day and evening, instead of being in that part of the town, and situate near the police barrack, where he could more promptly render assistance in case such became necessary. That the house of a medical gentleman, who is a respectable voter in the town, having been attacked on the evening of the 20th inst., and the windows broken, such voter at once applied to the said J. A. Kirwan for assistance and protection, but was refused on the ground that there was not sufficient police force then available in the town. That the said J. A. Kirwan during these proceedings remained in the house of the said sub-inspector, and expressed little or no concern at the state of the town, but, on the contrary, made light of the occurrences. That by such impunity the mob considerably increased in numbers and violence, so as to render it dangerous for any Protestant to appear in the streets of Ballina without the serious risk of being stoned or otherwise maltreated, and that in consequence many, at great personal inconvenience, were unable to stir abroad. That on the night of Thursday, the 22nd instant, the house of a Roman Catholic shopkeeper and voter in the town, named Daniel Moran, who declined to take any part in the election for the county of Mayo, was attacked by the mob, the windows broken, and the inmates threatened with such violence that in selfdefence they fired upon their assailants, three of whom were wounded, and that in consequence it was necessary to place a body of police in charge of said house, so as to prevent any renewal of the attack. That said Moran had been exposed for several days before this to the grossest outrage and intimidation, by reason of men being placed at the door of the shop, in order to prevent any person dealing or in any manner holding com- 7 munication with him. That on said last-mentioned day the crowd of disorderly persons so increased, and their conduct became so violent, in consequence of the impunity with which they had been treated, that at a meeting of the Protestant inhabitants of the town they determined to arm themselves for general protection, but, previously to doing so, addressed a respectful but earnest letter of remonstrance to the said J. A. Kirwan, urging him to take up a better position in the town than where he was then located, and to adopt more decisive measures for their protection, to which communication J. A. Kirwan made no reply. That shortly after said letter of remonstrance was presented to the said J. A. Kirwan, one of the mob was arrested for riotous and disorderly conduct, and a party of the police force, consisting of five men, were directed to bring him a prisoner to Bridewell, and while proceeding thereto an attempt was made to rescue said prisoner, and the police force who had him in charge were severely beaten and pelted with stones, notwithstanding which they acted with such intrepidity that they not only retained their prisoner, but arrested two of the persons who attempted the rescue. That the said J. A. Kirwan, who was then in the police barrack, was made aware of the attack on the police, and entreated to call out an extra number, as well as the military, in order to suppress the violence of the mob, which at that time exceeded all previous bounds. That the said J. A. Kirwan, assisted by Edward Howley, Esq., a local magistrate of this vicinity, who was deputed to act during the said election, did accordingly call out an additional force of police and the military, by which means the mob were prevented from continuing their attack on the police, or rescuing the said prisoners; but the said Edward Howley and the said J. A. Kirwan, after having had a conference with three Roman Catholic clergymen, at once liberated said three prisoners, within a few minutes after their arrest in the public streets of Ballina, in the presence of the military and police, some of whom stated that such a proceeding was in itself sufficient to make them lay down their arms. That the military force consisted of about fifty men and two officers, and the police of about thirty-five men and one officer; and application in writing having been made by a professional gentleman for an escort to bring the voters in the interest of the Conservative candidate to the polling booth from the districts of Killala and Crossmolina (six miles distant), said application was refused, on the ground that the said J. A. Kirwan had not sufficient force at his command. That a special steamer was accordingly employed at night, which conveyed forty-two voters from Killala to Ballina, in order to vote for the Conservative candidate. That after voting, an escort became necessary, in order to return said voters in safety to said steamer, and the said J. A. Kirwan consented to escort them, accompanied by a large body of military, police, and one or two other local magistrates. That immediately after proceeding from the court-house the said escort and voters were attacked by a ferocious mob, with stones and other missiles, and were it not for the courage displayed by the military and police, the said voters would have been murdered or most seriously injured. That a prisoner was at once taken, for being prominently concerned in said attack, but was liberated immediately by said Edward Howley and J. A. Kirwan; and the result of 8 which was, that in a few minutes afterwards the said escort and voters were again violently attacked by the mob while passing through the streets of Ballina, some of whom were severely wounded; and at length the said J. A. Kirwan, after his being repeatedly urged, read the Riot Act. That shortly afterwards a soldier, who had been wound-ed, fired on the assailants, and dispersed them, by which means the voters were eventually placed on board the steamer. That the said J. A. Kirwan, during his residence in the town, was in the habit of associating and spending his evenings with Roman Catholic clergymen and others of the most prominent partisans of the Liberal candidates, thereby giving the rabble good reason to suppose that he was not disposed to act with perfect impartiality, and that their misconduct would be overlooked, or dealt with in a more lenient manner than the circumstances of the case would warrant. That the supremacy of the law was ignominiously compromised in the early part of the proceedings by the said J. A. Kirwan, who at one period, instead of upholding the dignity of his commission, by making use of the force under his charge for the purpose of repelling mob violence, called on the people in the name of O'Connell to desist.Then there was a letter dated the 4th of August, 1852, from Captain Floyd, of the 3rd Regiment, in which he expressed an opinion very unfavourable to Mr. Kirwan. Captain Floyd said—I now regret extremely that I feel it my duty to pass some remarks upon the conduct of Mr. Kirwan, the magistrate in charge during the late elections. First of all I must report, that on Thursday, the 22nd July, I was ordered out in aid of the civil power. Before I had time to reach the spot where the not had taken place, the police, under Sub-Inspector Fox, had quelled the disturbance, and had taken three prisoners. These prisoners were liberated, in the face of the military and a crowd of about 300 people, by Mr. Kirwan—an act which had a very bad effect. The next day, Friday, we took a man up for throwing stones. This man was likewise released by Mr. Kirwan, and that in the presence of about 5,000 people. I have no doubt that the affray which took place on the 23rd July would never have taken place had the above-mentioned magistrate acted firmly. It was with the greatest difficulty that I and others prevailed upon him to read the Riot Act; and when he did, he read but a part of it. I could bring other circumstances concerning the conduct of Mr. Kirwan to the notice of the Commander-in-Chief, but I consider it unnecessary, as I hear the inhabitants of Ballina have reported him to the Lord Lieutenant.Eventually he (the Earl of Eglinton) selected Mr. Martley, a Queen's Counsel, and a man of moderate opinions, to institute an inquiry into the whole circumstances of this case, and he would now read to their Lordships a few extracts from that gentleman's report. Mr. Martley said—In the evening of Tuesday, the 21st of July, Mr. Howley [Mr. Howley was a partisan of the Liberal candidates] returned from Castlebar, and drove in his carriage through the town of Ballina, accompanied by the same persons, or nearly so, 9 who had gone with him in the morning, and followed by a considerable crowd of persons, shouting and cheering. Mr. Howley sat on the driving seat; the clergymen were within the carriage, which was a close one. As the carriage proceeded through the town, placards, printed in large letters, were dropped and distributed in the street by the persons in the carriage. One of them was produced, and accompanies this report. It is in the following terms:—'Catholic electors of Mayo, remember Stockport! The poor Irish Catholics were butchered by the Orangemen! The houses of the poor Irish Catholics were levelled by the Orangemen! The chapels of the poor Irish Catholics were burned by the Orangemen! The priests of the poor Irish Catholics were hunted by the Orangemen! Catholic electors of Mayo, M'Alpine is an Orangeman! and went specially up to Dublin to get in Vance and Grogan, the Orange candidates. Hurrah for Moore and Higgins!' Similar placards were posted at different places through the town…The populace, which had been much excited during part of the day, became very riotous during the evening…On Tuesday evening the mob appears for the first time to have proceeded to acts of actual violence, by breaking the windows of the houses of several respectable persons who were obnoxious to them.…Mr. Kirwan consulted with Mr. Cruice, a brother resident magistrate, who happened to be at Ballina (but not on duty) as to the prudence of going out in presence of the mob with such a force as he had at his disposal, and Mr. Cruice concurred in the opinion that such a measure would not be safe…I regret to be obliged to state my opinion that the conduct of Mr. Kirwan in this part of the transaction was deficient both in energy and judgment; that the state of the force at his disposal at half-past eight o'clock on Tuesday evening, when the outrages were first reported to him, did not warrant his inaction, and the order to the head constable to keep his men within their barracks; and that if at this early stage of the proceedings there had been a due demonstration of vigilance and vigour, the turbulent spirit of the populace might have been checked, and the outrages which subsequently took place might have been, at least to some extent, prevented…On Wednesday, the 21st, the populace again assembled in formidable numbers, and in a very turbulent manner, hooting, hissing, and insulting, and threatening respectable persons. No measures were taken by Mr. Kirwan to repress this lawless conduct. The order to the police to remain within their barracks still continued…Soon after this the Rev. Mr. Armstrong, a Presbyterian minister, reported to Mr. Kirwan and Sub-Inspector Fox that he had been grossly insulted and threatened by the mob, and called on them to take measures to remedy this state of things. He strongly represented the unruly conduct of the populace, by which peaceable persons were prevented from going about their ordinary business through the town, and he very sensibly observed, that the main point of assembly for the mob was the Market-cross, and that a small force posted there would be sufficient to repress the disturbance. He was told there was no sufficient force for the purpose; that the military who had arrived that afternoon were so fatigued that it would be unreasonable to call them out; and Mr. Kirwan added, that he had never in his life seen so quiet 10 a mob at an election. The evidence of Mr. Armstrong appears to me to be particularly deserving of attention, as well from his position and character as from the dispassionate tone in which his testimony was delivered.At a later period on Wednesday evening there was a considerable disturbance. Mr. Martley proceeded to say:—About eleven o'clock on Thursday morning, Mr. Howley, a local magistrate (one of those to whom the sheriff gave his deputation, and who is admitted to have been very active during the whole time in his endeavours to preserve the peace), arrested one of the rioters, and a head constable and five men were sent from the barrack to take the prisoner to the Bridewell. They were marching up Knox's-street, towards the Market-cross, when they were violently assailed by the mob, who endeavoured to rescue the prisoner. The party reached the Market-cross, where they were joined by the five men then on guard at Moran's house; and though attacked and struck with stones and other missiles, they succeeded, not only in retaining the prisoner, but in arresting two of the assailants. The alarm having been given, the rest of the constabulary force came to the assistance of their comrades; and the party of the military also came up, with Mr. Kirwan at their head. Mr. Howley was present, and there were also several Roman Catholic priests among the crowd, exerting themselves to suppress the riot, and entreating the people to disperse. Mr. Kirwan, on coming up, told the mob that if they did not disperse he would read the Riot Act, and compel them to do so; and finding the prisoners in custody of the police, he at once most properly declared his determination that these persons should not be released from custody till after the election. This prudent resolution, however, he afterwards unfortunately abandoned; and a transaction occurred which appears to me to be in the highest degree reprehensible. Some conversation took place between Mr. Kirwan, Mr. Howley, and some of the priests. Some person said to the mob, 'Go home, and we will get the prisoners liberated;' and thereupon, although there was then a force under arms amply sufficient to have vindicated the authority of the law, and although Mr. Kirwan had shown that he was sensible of the importance of making an example of persons taken in the very act of perpetrating a violent outrage, the prisoners were, by Mr. Howley's order, publicly discharged, with a simple caution as to their future conduct.Mr. Martley summed up the conclusions at which he had arrived in these terms:—First, as to the charge that the house of the sub-inspector, at which Mr. Kirwan took up his residence, was inconveniently situated, and so as to prevent Mr. Kirwan from promptly giving his personal attendance and assistance when they might have been required, I am of opinion that there is no foundation for this charge, and that it was right and proper for Mr. Kirwan to accept the invitation of the constabulary officer. With respect to the refusal of Mr. Kirwan to detach any part of the force under his orders for the purpose of escorting voters from distant places, I am of opinion that he was justified in such refusal, and could not have safely complied with the 11 requisition. With reference to the liberation of a prisoner captured by a soldier during the attack on the escort of the Killala voters, I do not think that this charge has been established…It is stated in the memorial that 'Mr. Kirwan during his residence in the town was in the habit of associating and spending his evenings with Roman Catholic clergymen and others of the most prominent partisans of the Liberal candidates, thereby giving the rabble reason to suppose that he was not disposed to act with strict impartiality,' Ac. In my opinion this charge is not sustained by the evidence, so far as evidence was offered on the subject…It is further stated in the memorial, 'that the supremacy of the law was in the early part of the proceedings ignominiously compromised by Mr. Kirwan, who at one period, instead of upholding the dignity of his commission by making use of the force under his charge for the purpose of repelling mob violence, called on the people in the name of O'Connell to desist.' The evidence on this allegation is that of Mr. Urquhart, a gentleman whose credit appears to be above all impeachment…On the whole, and considering that the expression is not one very likely to have been used, I think it possible that Mr. Urquhart may have been mistaken; and I do not consider this charge so satisfactorily proved that it would be safe to rest upon it any judgment unfavourable to Mr. Kirwan.Mr. Martley added—I wish I could come to the same conclusion with respect to the other charges. The substance of these charges is this:—that Mr. Kirwan, being specially deputed to preserve the public peace, and finding the town in a state of some excitement, remained for some time wholly inactive, taking no measures to preserve the peace, and making light of the indications of disturbance; that the turbulence of the mob progressively increased as they were encouraged by impunity; that this formidable spirit of insubordination was further fostered by the ill-judged measure of publicly liberating prisoners arrested in the perpetration of a most formidable outrage; and, finally, that this want of energy and promptitude still continued on the first day of the polling, when the previous conduct of the mob towards gentlemen who were guilty merely of exercising their elective franchise had so nearly led to fatal consequences. I regret to say that for these charges there seems to me to be much foundation.The Report proceeded—The duty which Mr. Kirwan was sent to discharge was an arduous one, and required firmness and determination, as well as discretion and forbearance; and I cannot say that he proved himself equal to the occasion. From the outset there appears to have been supineness and want of energy. No sufficient arrangements were made to repress the first attempts at outrage, nor was due attention paid to representations and remonstrances on the subject, which indeed should not have been necessary to a person placed in Mr. Kirwan's position. Mr. Kirwan's justification of his conduct in remaining so long inactive rests principally upon the inadequacy of the force at his disposal, and in the first instance the number of police was small, and would have been insufficient to repress such tumults as occurred on Thursday and Friday; but in the early stages of 12 the excitement it would have been much more easily dealt with. Even on Wednesday, when the head constable, without Mr. Kirwan's order, marched out a portion only of the force in barracks, the mob immediately gave way. It appears to me, therefore, that the state of the force under Mr. Kirwan's command did not at any time justify his determination not to act, and that a timely display of firmness in the first instance would probably have repressed and prevented the riotous assemblage of people which afterwards became so formidable. As to the liberation of the prisoners on Thursday, both the act itself, and the manner in which it was effected, were ill-advised and fraught with mischievous tendencies, encouraging the lawless and turbulent by the prospect of impunity, leading the peaceable and orderly to apprehend that they were not to expect protection from the constituted authorities, and that it was necessary to arm themselves in their own defence, and thereby greatly increasing the danger of hostile collision between the different classes. On Friday, the 24th, there seems to have been a want of judgment in the arrangements. There was no attempt made to prevent the masses of people from congregating, and occupying the positions in which they could act most effectually, although there can be no doubt that at that time the force of police and military was amply sufficient for preserving the internal quiet of the town. It appears to have been very imprudent to allow the military escorting the voters to be pressed upon and almost surrounded, and no less so to have so long delayed reading the Riot Act, by which the audacity of the mob was further increased; and that the events of the day did not result in bloodshed and loss of life is attributable, under Providence, to the steadiness and forbearance of the military, under circumstances of great provocation, and to the gallant conduct of two mounted policemen, under the orders of their sub-inspector. It was not until Captain Floyd had threatened to act on his own responsibility that Mr. Kirwan consented to place the military in a position to protect their own lives and those of the persons whom they were escorting.Mr. Martley went on to say—The evidence appears to me to establish that the Roman Catholic clergy, if they did not create the popular excitement, encouraged it up to the point when the hostile collision between the people and the authorities seemed to be immediately impending; and then, on the two occasions detailed in the evidence, they exerted themselves energetically to prevent fatal consequences. On the last occasion their pacific interference was withheld until it had nearly come too late to prevent the loss of human life.Having read so much against Mr. Kirwan, he would next read what had been said in his favour. Mr. Martley said—The memorialists attribute the conduct of Mr. Kirwan, on which I have been obliged to observe, to partiality. I do not think that the evidence I have received establishes this imputation.He added—When Mr. Kirwan did act, he seems to have done so to the best of his judgment, and with a 13 sincere desire to preserve the public peace. On the occasion of escorting the Killala voters, who were of the party to which he is supposed to have been unfavourable, he did not spare himself, but was as much exposed to danger as the objects of the popular fury.Now let their Lordships consider the case as established against Mr. Kirwan. It had been proved that Mr. Kirwan remained inactive (he quoted the words of Mr. Martley) when the not was formidable, and said he had never seen so quiet an election, and consequently refused to call out the police, whereas he wrote to him (the Earl of Eglinton) a letter stating that he was a magistrate for nineteen years, and never had a more arduous duty to perform. It was not denied that he wrote complimentary letters to the priests, who on their part had circulated inflammatory placards and excited popular discontent. It was stated also by Mr. Martley that the conduct of Mr. Kirwan was deficient both in energy and action, and was not equal to the occasion; that the liberation of the prisoners was ill-advised and was attended with danger, and that he did not read the Riot Act until Captain Floyd threatened to act upon his own responsibility. Then came the question, How was he to deal with a magistrate who had acted in this manner? No one would contend that he ought to have been allowed to escape without some marks of displeasure on the part of the Executive Government. He (the Earl of Eglinton) had three lines open to him. He presumed there were none of their Lordships, after what he had read, who would imagine that he could have given him a reward, as he had before stated. He was sure that none of their Lordships could think that he should let him off without some mark of his disapprobation. It was open to him to censure him, to dismiss him, or to suspend him from the exercise of his functions for a given period. As to adopting the line of censuring him, he did not entertain it for a moment; for he must admit, though with some degree of pain, to their Lordships, that the stipendiary magistrates in Ireland were not all adequate to the very difficult services they had to perform. He was convinced that if two-thirds of the seventy-one stipendiary magistrates in Ireland were efficient men, they would be fully adequate to discharge all the business which was now thrown on the whole body; but at the same time he must say there were some stipendiary magistrates in Ireland who were as fit to do their 14 duty in any difficulty in which they might be involved as any other persons in Her Majesty's dominions. He resolved, as he before said, not to censure Mr. Kirwan. Had he done so, Mr. Kirwan would have put the censure in his pocket. It might have affected his feelings, but would not have operated as a warning to deter his brother magistrates from similar misconduct on future occasions, and it would have afforded no satisfaction to the inhabitants of Ballina, who in his (the Earl of Eglinton's) opinion were justly indignant at Mr. Kirwan's conduct. He hesitated, he must confess, between dismissal and suspension; but when he saw the opinion of Mr. Martley, acquitting him of partiality, and when he looked to the good character that Mr. Kirwan had always borne, he limited himself to what he then and still considered a most lenient sentence under the circnmstances, namely, suspension from his functions, and from the receipt of his salary, for six months. Having inflicted what he considered to be a lenient punishment on Mr. Kirwan, he was certainly more than surprised when he found that the first public executive act of his successor, in conjunction with a proposal to reinstate in the magistracy a noble Earl (the Earl of Ro-den)—which proposal the high feelings of that noble Lord prevented him from agreeing to—was to do away with at once, and put an end to at once, this very lenient punishment which he had awarded against Mr. Kirwan. He believed it was on the second day after the arrival of Lord St. Germans in Ireland that the Under Secretary was ordered to write to Mr. Kirwan, stating that be was at liberty to exercise his functions again. There was no country in the world that stood so much in need of firmness and impartiality as Ireland. There was no people in the world on whom it was so necessary to impress the idea that they are governed equitably as the Irish. While the Government of Ireland was subject to such constant changes, he could not but think it was most inexpedient that the public acts of any Viceroy should be overruled by his successor except on the strongest grounds, or on some great change of the political system. He could not help thinking that this act was one uncalled for, and was an improper exercise of a new-born authority. He protested against it, because be considered the meaning which was to be gathered from this act of his successor, would tend to lower the character of the viceroyalty, 15 and because it appeared to him to be a return to a system of governing Ireland through means of the priests—a system which had been often tried in Ireland, but which had invariably failed, and he regretted to see some indication of a return to it in the first acts of the new Government. Ireland had been too long the battle-field of English party strife. Her best interests had been too often bargained away for party votes, and he could not help saying that the only way in which they could hope to bring Ireland to the state of prosperity which he was sure all their Lordships wished that country to possess, would be by carrying out in action the words of good import which the noble Earl at the head of the Government had made use of in that House, but which in a few days afterwards were falsified, not on the part of the noble Earl, but on the part of one of his subordinates, avowedly on his own responsibility, and on which occasion a line of conduct was taken that could not but appear to be the beginning of a return to that pernicious system which every noble Lord connected with Ireland must join with him in wishing to see put an end to. He must apologise to their Lordships for detaining them so long, and begged to move for the papers referred to in his notice, and which he need hardly say were not in existence; but he had given notice of moving for them to enable him to make the statement which he had submitted to their Lordships.
That an humble Address be presented to Her Majesty, for Copies of the Representations made to the Earl of St. Germans which induced him to reinstate Mr. Kirwan.
§ The EARL of ABERDEEN
said, he supposed that it was because the question was an Irish one that the noble Earl had adopted the somewhat Hibernian course of moving for the production of something not in existence. As regarded the question before the House, however, he was not surprised that the noble Earl should feel warmly on a subject, in which he conceived, however erroneously, that an amputation had been cast on his authority while he was exercising the office of Lord Lieutenant of Ireland. It appeared to him, however, that the noble Earl attached too much importance to the act to which he referred; and he could assure the noble Earl that by the act in question the present Lord Lieutenant had not the remotest intention of applying the slightest censure to the deci- 16 sion which his predecessor had come to in the case of Mr. Kirwan. The act of which the noble Earl complained was of course carried into effect on the arrival of the new Lord Lieutenant in Dublin; but, in truth, it was resolved on long before the departure of that noble Lord from this country. The proposition had been submitted to him (the Earl of Aberdeen) long before his noble Friend left London, and he agreed to it without the slightest reference to any proceeding on the part of the noble Earl. The noble Earl had explained the reasons which induced him to inflict upon this gentleman a suspension from his office for sis months. Now, as a matter of opinion, he (the Earl of Aberdeen) must confess his own opinion was against that proceeding which the noble Earl had adopted. That was the first time he had ever any knowledge of this subject, and therefore his remarks did not apply particularly to this case; but in general he could understand dismissing a magistrate or censuring a magistrate; but he could not think it a wholesome exercise of authority to suspend a magistrate for six months. In the present case, he could not see what benefit the suspension for six months could do this gentleman, except to afford him an opportunity of renewing his studies in Latin. The suspended magistrate would return to the exercise of his functions exactly the same man as he was before. He would be neither better nor worse for that suspension, and he confessed, therefore, that it appeared to him that suspension was an injudicious mode of inflicting punishment. He thought there might be very good reasons for inflicting a severe censure, and there might have easily been found means to prevent Mr. Kirwan from putting this censure in his pocket. It would have been made known to the people of Ballina that he was severely censured, and he thought, on the whole, that that would have been the proper mode of punishment for the noble Earl to adopt. The noble Earl did not think it proper to dismiss Mr. Kirwan altogether, in which opinion he (the Earl of Aberdeen) agreed. After the impartial and fair statement of Mr. Martley, it would have been difficult for him to do so; because whatever errors of judgment Mr. Kirwan might have displayed, he was fully acquitted of all the important charges that had been made against him. He would again assure the noble Earl that it was not in the least degree the intention of his noble Friend the Lord 17 Lieutenant of Ireland to find fault with his conduct; but his noble Friend thought that this six months' suspension was an unusual punishment to inflict upon a magistrate, and he could not see there was any objection to remitting two months of that period. He thought a Lord Lieutenant might be at liberty to exercise his discretion in releasing a magistrate from that punishment which was inflicted upon him for the space of six months, and to remit two months of that period, without being supposed to cast an imputation on the conduct of his predecessor. He could assure the noble Earl that in this instance it was the most untrue suspicion that could possibly be entertained of the conduct of Lord St. Germans. As he (the Earl of Aberdeen) had already said, this was not the first act of Lord St. Germans on entering on the duties of the Lord Lieutenancy; but though it had been determined on three weeks before he went to Ireland, he could of course only promulgate the order on his arrival in Ireland. He did not exactly understand what was the particular object of the noble Earl on this occasion, unless he thought it was intended to cast some censure or imputation on the course he had pursued; and he could confidently assure him that there was not the most remote intention of doing so. He (the Earl of Aberdeen) expressed only his own opinion when he said, he thought the suspension of Mr. Kirwan an injudicious mode of punishing him for magisterial misconduct, because it would lower him in the eyes of the people, without improving his capacity. It was his humble opinion that, in such a case, the preferable course was to dismiss a magistrate if he deserved dismissal, and to censure him if he merited only censure. The EARL of GLENGALL thought the remission of the sentence upon Mr. Kirwan could be viewed in no other light than as a slur upon the act of the noble Earl the late Lord Lieutenant; and in that light he was sure the people of Ireland would view it; but as the noble Earl opposite had disclaimed any such intention, he must suppose the case to be as he represented it. The act bore all the marks of precipitation. It appeared from the statement of the noble Earl that that act of Lord St. Germans could not have been properly considered. It was done, it appeared, in this country, and before Lord St. Germans had gone to Ireland, and had an opportunity of seeing the authorities in that country, and talking over the matter with the Attorney General, 18 who was in Ireland. It was true he had gone over to Ireland previously for a couple of days, but he had not time during his stay there on that occasion to consider exactly the facts of this case. It was a bad example to present to the country that one Lord Lieutenant should censure the conduct of another. Hitherto, whatever differences of opinion might exist between parties, it was not customary that the acts of a previous Lord Lieutenant should be superseded by his successor on his arrival. Amongst some persons in Ireland it was a unanimous opinion that this was a concession to certain priests, and to certain members of the "brigade." That opinion might be right or might be wrong, but still it was an opinion that was entertained. The last election in Ireland was certainly distinguished by more outrage, turbulence, violence, and bloodshed than had been witnessed upon any other occasion. It should be remembered that at the last election intimidation and violence were carried to a great extent, and a considerable number of persons were returned, in consequence of those acts, to the other House of Parliament. That was notorious. The priests had returned the Members for Mayo, and Mr. Kirwan was reinstated through the interposition of the priests' party, who would not be satisfied unless they had a complete triumph, and that triumph was the reinstatement of this gentleman. There was another very strong reason why it was of great importance to this party to have this gentlemen so reinstated. He begged to give some explanation with respect to the employment of those stipendiary magistrates at elections, and as to the position of the magistrates of Ireland generally, as regarded their interference at elections. It was necessary at the elections in certain places to employ the stipendiary magistrates, because the magistrates of the county were placed in a very unfortunate position. If one of those gentlemen were called upon to act in any town in the county during the election, for the purpose of repressing tumults, and if any injury were done to the mobs, he was hooted and insulted as a partisan; and in case of any accident or loss of life from calling out the military and police, he was looked upon as a monster, and women and children for the rest of his life called after him "Haynau!" That was exactly what had occurred in some places. Therefore it became essentially necessary to get the stipendiary magistrates in those counties to keep the peace, and, 19 having the military and police at their disposal, that they should act for that purpose, because, if they declined to do their duty, it was quite clear that the priests' mobs must carry the elections. The great object the priests' party' had in getting Mr. Kirwan reinstated was to give a hint to all the stipendiary magistrates engaged at these elections that they need not do their duty, and that they might safely neglect to do their duty. It was also a hint to the mob that the magistrates need not do their duty, and that, therefore, they were at liberty to act as they might think fit. It was clear that the priests had, in consequence of this violence, returned many Members, and they consequently considered that they had power to control any Government. They exercised a power over the Members which they had returned by the means he had stated; they conceived that the persons they had returned to Parliament were bound to obey them, and that they could exercise considerable influence and power in compelling the Government to do the same. In support of that statement, he could mention to their Lordships a circumstance that had occurred within the last three days, with respect to the power which the priests thought they possessed in those matters. The case to which he was about to refer had occurred at Nenagh, in the country of Tipperary, where sixty priests met, and resolved that—We, the undersigned priests, who have been instrumental in procuring the triumphal return of Mr. Scully and Mr. Sadleir at the last election for the county of Tipperary, feel it to be an imperative duty which we owe to ourselves, as consistent patriots and guides of the people, to call upon our representatives, and respectfully to tell them that their Parliamentary conduct, compared with their pledges at the hustings, has left a painful feeling on the minds of their constituents, which it is their duty to remove,The constituents were the priests themselves, according to Mr. Lucas's opinion.Resolved—That it is incumbent upon us respectfully to request them to explain how their adhesion to such a Government, their desertion of the honourable benches of the Opposition, and their sitting on the Ministerial side of the House, is consistent with their pledges at the hustings, and the principles they bound themselves to maintain.That was the kind of power which those gentlemen supposed they possessed, and which they would be encouraged in exercising by the remission of punishment that had taken place in the case of Mr. Kirwan. A circumstance had occurred within the 20 last few days which also showed the effect that had been produced by the remission of the sentence in the case of Mr. Kirwan. There was certainly a great deal of tumult and a vast deal of outrage charged to have taken place at the last Limerick election, and certain parties tried for those tumults were sentenced to be imprisoned and fined. Mr. Justice Perrin was the Judge who tried the rioters, and sentenced them; and he need not remind their Lordships that he would be the last person to sentence any of the parties harshly or severely. But what was the consequence? A memorial was presented to the Government, praying for the remission of the sentence passed on those rioters, signed by a justice of the peace in Limerick, and other inhabitants of that city, and to that memorial an answer was returned, stating that his Excellency had been pleased to remit three months of the period of imprisonment to be borne by each of the prisoners, and also directed that one-half of the fines imposed upon some of the parties should be also remitted. Thus it appeared that parties who were convicted of violence and intimidation were relieved from a portion of the punishment to which they were subjected, by the remission of a part of their sentence. A great deal had been said about bribery at elections in England, and nothing could be more unconstitutional than to give bribes; but surely this intimidation in Ireland was equally unconstitutional. When parties were thus returned by means of the priests, their elections should be disallowed, and they should have something like free elections in Ireland, which could not exist unless occurrences of this kind were put an end to.
§ The EARL of DERBY
My Lords, I believe that the object which my noble Friend (the Earl of Eglinton) had in view, when he brought forward the present Motion, has been completely answered in obtaining from the noble Earl at the head of the Government a declaration that, in the course of that unusual proceeding of the present Lord Lieutenant to which he referred, there was no intention to cast any censure or reflection upon the conduct of my noble Friend while exercising the functions of Viceroy in Ireland. At the same time, I must express my opinion that an act directly reversing an act of my noble Friend, and the decision adopted by the present Lord Lieutenant during the first moments of his entering upon the government of Ireland, in case in which there may be strong grounds 21 for supposing that he had been influenced by political considerations, bears upon the face of it an aspect of such a suspicious character as is likely to shake the confidence of the people of Ireland in the impartiality of the noble Viceroy's administration. I wish, moreover, especially to protest against the doctrine laid down by the noble Earl at the head of the Government, that there was no alternative to be taken by my noble Friend, in the case of Mr. Kirwan, but that of either censure or dismissal. The noble Earl founds that declaration upon an expression that the act of suspension was, in effect, a lowering of the character of a magistrate in the eyes of the public, and that upon the expiration of his period of suspension he would resume his functions neither better nor worse than he was before. Now, let us apply this doctrine to any other service or profession, and see how it can be carried out. Is there anything, I ask, more usual than upon the result of a court-martial to find an officer suspended for a limited period, and, at the expiration of such period, to find that officer returned to the service "neither better nor worse than he was before?" But still he had undergone the punishment that is deemed commensurate with his offence. But take a still higher profession. I am sorry I do not see on the present occasion any of the representatives of that profession in their places; but I suppose that they have been quite worn out by the assiduous attention which they manifested last night to the discussion that was then going on. I am, however, sorry not to see some of the right reverend Prelates in their places. But to return to what I was about to say. What is more usual than to suspend a clergyman for a period of six months, a year, for two or three years; and at the expiration of such period to permit him to return to the position which he had previously occupied in the Church? Now, according to the noble Earl's argument, he would "be neither better nor worse" for such punishment; but nevertheless he would be degraded in the eyes of his parishioners. Does the noble Earl propose to carry out his views in reference to the Army, the Navy, and the Church, by declaring that there is no intermediate punishment between a censure and a dismissal? Does the noble Earl mean to argue that a censure suffered by a magistrate would not have been calculated to lower him in the eyes of the public, or that the suspension 22 of a clergyman or an officer does not tend to lower either of those persons in the estimation of the public equally as the same punishment inflicted upon a magistrate? When a censure is visited upon a party, that censure may be a punishment for the time, though not, perhaps, a punishment for the future; but the punishment of suspension in the present case was attended with the loss of salary for six months. If the noble Earl does not object to a censure, upon what principle does he object to the intermediate punishment of suspension? But I think that the loss of salary for six months is as likely to make an impression on the mind of a magistrate, and to lead to the exercise of more discretion in his future conduct, than any expression of dissatisfaction on the part of the Government, more especially if that expression of dissatisfaction is to be reversed by the Government that immediately succeeds to office. The noble Earl has let in some light on the subject, which induces me to ask a question with respect to the production, or rather the non-production, of certain papers. The noble Earl assumes that the first step taken by the Earl of St. Germans was to liberate Mr. Kirwan. He liberates this magistrate without the expression of disapprobation or approval of his acts, and without any mention of the grounds on which he is induced to remit the remainder of the sentence. Observe, my Lords, that only two months out of the six were wanting to complete the term of Mr. Kirwan's suspension; but on the day after the Lord Lieutenant lands, his Under Secretary is directed to acquaint Mr. Kirwan that it is his Excellency's pleasure that he should resume his duties as magistrate. What inference is to be drawn from this but that the Lord Lieutenant considered Mr. Kirwan had been harshly and unjustly dealt with, and that he was anxious, as early as possible, to remedy the wrong? If the Lord Lieutenant had stated the grounds on which he remitted the sentence, and in his letter had advised Mr. Kirwan to act with more discretion for the future, I could have understood the sudden decision of the Lord Lieutenant to reverse the decision of his predecessor, although I might regret the act. But this letter, leading to the inference, as it does, that the magistrate was not subject to any blame, seems to me to be a most unfortunate beginning of his duties, and I think he took a most unfortunate course in reversing this decision,- 23 succeeding as he did as Lord Lieutenant to the noble Earl, of whom, although he is a personal and political friend of mine, I must say that he has left behind him a character for fairness and impartiality in the administration of the law which few Lord Lieutenants have equalled, and none have ever surpassed. But the noble Earl (the Earl of Aberdeen) stated that the reinstatement of Mr. Kirwan had been decided upon by Lord St. Germans some time before he left London, and the inference is, that this determination was come to without any memorial having been presented to him. But if this decision was come to while the new Lord Lieutenant was in London, and while he had no opportunity of conferring with his predecessor upon the merits of the case, or with Lord Clarendon, on whose judgment I know Lord St. Germans placed much reliance, or with the Attorney General for Ireland—if the Lord Lieutenant decided without conferring with them, it is clear that he must have done so, not by some word-of-mouth representation, but upon some letter, memorial, or written representation from Dublin; and, therefore, when my noble Friend (the Earl of Eglinton) moves for the papers connected with the restoration of Mr. Kirwan to office, I ask the Government for what reason these documents—for documents there must have been, be they recommendations or memorials—do not appear in the papers laid before Parliament as the grounds on which the Lord Lieutenant acted? Representations there must have been, as Lord St. Germans was not in Dublin; and if that representation or memorial were before your Lordships, you would know on what grounds the noble Earl acted, and you would be able to judge whether the Lord Lieutenant, in exercising so suddenly the high functions of his office, acted upon reasons that would approve themselves to the judgment of your Lordships. Where the first act of the Lord Lieutenant was the reversal of the act of his predecessor, I think the grounds and motives for the proceeding should be shown. But be that as it may, I wish to know whether there is any memorial or representation on the subject; and if there is, why it was not laid on the table of the House when the papers were moved for?
§ The DUKE of NEWCASTLE
said, that he trusted that the noble Earl who had just spoken, and more particularly the noble Earl (the Earl of Eglinton) who had 24 brought forward this Motion, were perfectly satisfied that the Lord Lieutenant of Ireland had no intention to cast any slur on the government of his predecessor in office by the course which he had taken in the case of Mr. Kirwan. At the same time he must protest against the fairness of the noble Earl's statement—that although it might not be intended, the effect of that course must have been to produce in the minds of the people of Ireland a conviction that there was no spirit of impartiality in the present Government. He must say that the noble Earl (the Earl of Derby) seemed inclined to make a great deal of a very small matter, and he was utterly at a loss to conceive how he could maintain that there was the least show of partiality in this transaction. How could it be maintained that this was an act of partiality on one side, when it was recollected that at or about the same time the Lord Lieutenant of Ireland made a similar proposal with reference to a noble Friend of his (the Earl of Roden) whom he then saw opposite? He was quite sure that his noble Friend (the Earl of St. Germans) was in both cases actuated by the highest feelings of honour; nor could it be any more maintained that the course taken with respect to Mr. Kirwan was a slur on the noble Earl opposite, who had moved for non-existing papers, than that the act to which he had just referred could be considered as a slur on his noble Friend and Colleague (the Earl of Clarendon), who was Lord Lieutenant of Ireland when the dismissal of the noble Earl opposite took place. And while it was impossible to maintain that any slur was intended in either case, so it was equally impossible to maintain—whether the course adopted was right or wrong-that there was any show of partiality in the matter. The noble Earl opposite (the Earl of Derby) seemed, from the question he had put, to think that there was some intention on the part of the Government to withhold information on this subject; and he had endeavoured very ingeniously, from the fact that his noble Friend (the Earl of St. Germans) was in London when he decided on the restoration of Mr. Kirwan to the magistracy, to deduce the conclusion that some written communication must have been made to him for that gentleman's restoration, and that this docucument was withheld. Now, he (the Duke of Newcastle) could clear that matter up in a way which he hoped would be satisfactory to the noble Earl. He believed that 25 the fact was that the Secretary for Ireland (Sir John Young) was in Dublin in the performance of his duties, and was waited upon by some parties, both Catholics and Protestants, who urged him to recommend the Lord Lieutenant to restore Mr. Kirwan to the commission of the peace. The Secretary for Ireland having investigated the case, and having satisfied himself that it was his duty to make this recommendation, made it, either by a private note or by word of mouth, when he came over to London—he (the Duke of Newcastle) was not certain which. That simple statement was sufficient to prove that there was no suppression of any document. The communication was personal, though not to the Lord Lieutenant, yet to the Secretary for Ireland; and upon that recommendation the Lord Lieutenant acted. The noble Earl had commented severely on the opinion of his noble Friend at the head of the Government, that the late Lord Lieutenant of Ireland had not acted judiciously in suspending Mr. Kirwan; and that it was desirable either that a censure should be passed upon a magistrate, or that he should be dismissed, but not suspended. The noble Earl said that it was only following the precedent set in other branches of the service of the country; and that suspension was the constant result of a court-martial. That certainly was the case, but he would ask if there was any similarity between the positions of an officer in the Army, and of a magistrate in the performance of his duties in Ireland? He apprehended that there was the widest possible distinction between them, and that what might be right in one service might he wrong in the other. But the noble Earl went further, for turning to the bench where the right rev. Prelates usually sit, he expressed his regret that none of them were present in order to confirm his statement that the same course was taken in reference to the clergy. That statement was perfectly correct; but had any of the right rev. Prelates been present, they would have confirmed what he (the Duke of Newcastle) now stated, that the present practice in the Church was one which by no means conduced to benefit the clergy, or satisfy the members of the Church, whether clerical or lay, and that the sooner the practice was stopped the better. He hoped that it would not be thought for one instant that he was imputing any blame to the noble Earl opposite. He (the Duke of Newcastle) had been in Ireland in office for a short time himself, 26 and he was perfectly aware that this practice of suspending magistrates had prevailed to a great extent. Nevertheless, he was rejoiced that his noble Friend at the head of the Government had made this general remark with reference to it, because he, for one, hoped that it would never be pursued in future. He must again repeat that there was no intention on the part of the Government to cast a slur on the noble Earl opposite; nor, indeed, could the reinstatement of Mr. Kirwan be properly characterised as a reversal, or as an expression of disapprobation of his act. The simple fact was, that believing that this gentleman had, in a suspension for four months, undergone a sufficient punishment for the faults which he was reported to have committed—which, according to the reports of Mr. Martley and Captain Floyd, were nothing more than that he had shown want of energy and judgment—though these were certainly faults which he had no wish to extenuate—and knowing that his family were in extremely indigent circumstances, the Lord Lieutenant thought that the cause of justice could not suffer by an act of clemency and grace; and upon that representation of the circumstances, and acting upon that feeling alone, he restored Mr. Kirwan to the bench of magistrates.
The EARL of RODEN
said, he was sorry to have heard the remarks which had fallen from the noble Duke who had just sat down, because they had changed his opinion very much as to what he thought was the intention of the Lord Lieutenant when his Excellency offered restore him (the Earl of Roden) to the commission of the peace. It appeared now, from what had fallen from his noble Friend, that that offer was made in connexion with the restoration of Mr. Kirwan.
§ The DUKE of NEWCASTLE
was sorry to interrupt the noble Earl, but this was such a complete misrepresentation of what had fallen from him, that he could not but offer a word of explanation. He had not meant to imply anything of the kind, and he was confident that the Lord Lieutenant had no intention of acting upon any such principle. All that he had endeavoured to deduce was this—that the effect produced upon the mind of the people of Ireland could not be that the Lord Lieutenant was actuated by party feelings, when one of the first acts of his Government was to make an order for the restoration of one who, he was afraid, must be considered an 27 opponent of the Government to which he belonged.
The EARL of RODEN
must, after this explanation, consider that he had misunderstood the noble Duke; but, at the same time, he must say that the conclusion drawn by persons of all classes in Ireland, with respect to Mr. Kirwan and himself, was just that which he thought his noble Friend had expressed, but which he was sure now was not the case. It had been said that he rejected with disdain the offer made to him, and that he would not receive it under any circumstances whatever. He hoped he should not he troubling their Lordships too much by reading the correspondence which had taken place between the Lord Lieutenant and himself on the subject, in order that, for his own defence, there might be an end put to the various surmises as to the course which he had felt it his duty to take on that occasion, He would read first the letter addressed to him by the Lord Lieutenant:—Dublin Castle, Feb. 4, 1853.My dear Lord—I think that the necessity for depriving the county of your services as a magistrate has ceased to exist. In this opinion I know that Lord Clarendon, by whom you were superseded, entirely concurs. I have accordingly requested the Lord Chancellor to replace your name in the commission of the peace for the county of Down. Bearing in mind your high character, and your many claims to the respect and good will of your fellow-countrymen, I can not but rejoice that my first official act as Lord Lieutenant of Ireland should be the reinstating of your Lordship in the magistracy.—I have the honour to be, my dear Lord, your Lordship's very faithful servant, "ST. GERMANS.The Earl of Roden, &c.P.S. I have also requested the Lord Chancellor to replace the names of the Messrs. Beer in that commission, and I will cause a communication to that effect to be made to them.Nothing could be more kind than the spirit which animated this letter; but there were certain expressions in it which caused him to think it his duty to make the following reply:—Dublin, Feb. 5, 1853.My dear Lord—I have the honour of acknowledging your letter of the 4th inst., which was forwarded to me from Dundalk this day, and I beg to return you my thanks for the kindness towards me, which I am sure has prompted your Excellency to request the Lord Chancellor to replace my name in the commission of the peace for the county of Down. Tour Excellency has been pleased to say that you 'think that the necessity for depriving the county of my services as a magistrate has ceased to exist, and that Lord Clarendon, by whom I was superseded, entirely concurs with you in that opinion.'28I trust your Excellency will not consider me wanting in respect to the high station which you fill in this country, when I deny that any necessity did ever exist for the act to which you refer. Had your Excellency been in this country at the time, or had you been a member of the then existing Government, you would not have failed to know that my being deprived of the commission of the peace was in consequence of the pressure of the Romish party here on the Irish Government, to which their weakness forced them to yield, and which has since been avowed by one of that party themselves, the Member for Mayo, in a letter written by him and published within the last few days. With these observations I trust your Excellency will not think that I undervalue 'your first official act as Lord Lieutenant of Ireland,' but that I consider it as an act of justice, not only to myself, but to the loyal subjects of Her Majesty in this kingdom, which you have had the boldness to exercise immediately on your accession to power.If, after this declaration of my sentiments, it still appears to your Excellency that my services as a magistrate can again be exercised for the benefit of my country, I beg to say that, however the advanced period of my life and the circum stance of my having so long discontinued those duties might induce me to decline the honour you propose, I should feel it most unbecoming not to sacrifice every personal consideration to a sense of public duty. I trust you will not think me wanting in the courtesy due to your Excellency, if I should hereafter feel it right to make public the circumstances under which I have resumed the duties of the magisterial office.—I am, my dear Lord, yours, very faithfully, "RODEN.To that he had received a reply, which he would now read to their Lordships:—The Castle, Feb. 7, 1853.My dear Lord—Tour letter of the 5th reached me yesterday. I am unwilling to enter into a discussion of the circumstances which led to your removal from the magistracy, but I must frankly tell you that my view of them differs widely from yours.To the condition on which alone you are willing to resume the magisterial office, it is impossible for me to assent. I have therefore requested the Lord Chancellor to cancel the instructions which had been given for replacing your name in the commission of the peace for the county of Down.—I have the honour to be, my dear Lord, very faithfully yours, "ST. GERMANS.These were the simple circumstances of the case, and he trusted their Lordships would not think he had presumed too much on their indulgence in laying these letters before them. He would add also that he should think him neglecting a duty if he did not acknowledge the great personal kindness which had been shown to him by the present Lord Lieutenant of Ireland.
§ LORD ST. LEONARDS
said, he should not have taken any part in this discussion, had it not been for the question which had been raised with regard to punish- 29 ment. Now, he thought nobody could find fault with the punishment which had been administered as regarded the original offence. The conduct of Mr. Kirwan, taking it altogether, merited, he thought, severe punishment. For the first time, however, the noble Earl at the head of Her Majesty's Government had thought it right to find fault with the suspension of the magistrate as a secondary punishment; and the noble Earl desired it to be understood—and, of course, what he stated here must have great weight in Ireland—that there must either be simply a censure—mitigated or severe—or a dismissal. Now, he (Lord St. Leonards) had had occasion to exercise for some years in Ireland, upon a much larger scale than the Lord Lieutenant had it in his power to exercise, this particular function, because it devolved on the Lord Chancellor to suspend or punish or dismiss magistrates generally; and only the stipendiary magistrates fell within the jurisdiction of the Lord Lieutenant. Upon some occasions he (Lord St. Leonards;) had suspended these ordinary magistrates. and he held it to be much more difficult to suspend the powers of, or to dismiss one of those magistrates, than it was to suspend a magistrate who was a stipendiary, and who received a salary for his labours. After he had exercised that power, it occurred to him to reflect seriously whether it was constitutional or not—he never had any doubt about the expediency of such a course. It had occurred to him, when a gentleman was once a magistrate, that if his conduct was disapproved of, it would be the more constitutional course at once to dismiss him; and he had asked himself whether it was right that a gentleman should hold Her Majesty's commission of the peace, and at the same time be suspended from administering justice? He had made inquiry, he had given to the point great consideration, and he came to the conclusion upon which he acted, although rarely, that a suspension of a magistrate was no breach of any constitutional doctrine, and that it could be properly applied. It would not prevent the magistrate from acting if occasion demanded it, nor would such an act be blamed; but a wanton breach of the injunction would, no doubt, be followed by dismissal. If it could be applied without any breach of propriety, then surely suspension was a good secondary punishment. It was curious enough to see how this point had been raised. All analogy 30 was in favour of it. Suspension was practised in the Army, the Navy, and the Church. The noble Duke (the Duke of Newcastle) said, indeed, that this was all wrong. In that case, let the power of suspension in these cases be abolished, but in the meantime it would be highly inconvenient that it should go forth, on the authority of the head of the Government, that no suspension of magistrates should in future take place. Indeed, the noble Duke seemed to feel that suspensions must at any rate be admitted to be productive of good effect in the Army, and said that that did not apply to the present case; but he gave no reason whatever for this assertion. The statement of the noble Earl at the head of Her Majesty's Government, that no slur was intended to be cast upon the act of the noble Earl opposite to him (the Earl of Eglinton), was satisfactory. But it would have been difficult to cast any such slur. The noble Earl at the head of the Government did not intend any such thing; but, even if he had, he could not accomplish it, because it seemed to him (Lord St. Leonards) that the act of the late Lord Lieutenant was entirely justified. Still one man might punish, and another man, after the punishment had been endured, might see reason to abate a portion of it, without at all impeaching the original sentence. But what was to be regretted in this transaction was, that it was now explained, that, in point of fact, his noble Friend the noble Earl at the bead of the Government in Ireland, had made up his mind to this measure before he went to Ireland, and had done so in consequence of communications made from his Secretary, who was in Ireland. The reasons which had induced him to take that step might be satisfactory; but the fault he (Lord St. Leonards) found was, that the document which was the only source from which the public could draw any conclusion on the subject, simply stated the intention of the Lord Lieutenant to reinstate Mr. Kirwan. When he (Lord St. Leonards) had reinstated a magistrate, or remitted a portion of his sentence, he had invariably taken care to state fully and clearly what the grounds of the remission were. In like manner, if the document to which he alluded had stated that for such and such reasons Mr. Kirwan bad been reinstated, and had expressed a hope that the punishment that gentleman had already endured would lead to a better state of things, he (Lord St. Leonards) would have been perfectly satis- 31 fied. The transaction itself might have been perfectly right, and as it had now been explained he was willing to believe it was; and that the course taken by the Lord Lieutenant arose, not from any wish on his part to impeach the original decision of his predecessor, but from his having taken into consideration some circumstances which were not before his noble Friend, or which had occurred since he left office. But the reasons for the remission should have been stated; and he regretted that the omission to do so should have given rise to what had taken place on this subject.
The LORD CHANCELLOR
said, he had had no intention to take part in this debate, but he could not but think that some observations had fallen from his noble and learned Friend (Lord St. Leonards) which, considering his very high and deserved weight and position in the country, might, if they passed without remark from a person holding the Great Seal, lead to great misconception. The noble and learned Lord (St. Leonards) had stated to their Lordships that his principle, not merely with reference to stipendiary but ordinary magistrates of the country, was from time to time to suspend them from the exercise of their functions, and that it pressed upon his mind, not whether it was expedient, but whether it was constitutional to do so. He did not wonder at this having occurred to the mind of the noble and learned Lord, for he confessed he had heard with astonishment what he had said. He did not know by what process the noble and learned Lord thought the Lord Chancellor could suspend the exercise of the functions of any person to whom he had intrusted the commission of the peace. The Lord Chancellor might strike a magistrate out of the commission of the peace, but he did not think the suspension of that functionary was a very wholesome or constitutional proceeding. If an individual were a magistrate, he was a magistrate with all the powers which the commission of the peace gave him; and if he were not fitted to exercise those powers, the only constitutional mode of proceeding was to strike him out of the commission. With regard to the immediate subject under notice, he would not protract what seemed to be a worn-out discussion, but he wished to make one observation, which was this—that he thought it would be rather a dangerous principle to establish, that a Viceroy going to Ireland, or any one of the dependencies 32 of this country, should feel the slightest impediment in exercising the prerogative of mercy wherever it might seem fit that he should do so.
The EARL of CLANCARTY
objected to what he considered the novel doctrine which had been laid down by noble Lords opposite, that the suspension of a magistrate was not a proper course for the Government to take. As his noble Friend (the Earl of Roden) had brought under the notice of the House the circumstances which attended the offer of the Lord Lieutenant to replace him in the commission of the peace, he (the Earl of Clancarty) could not help expressing his opinion that it was desirable that the House should be furnished with a copy of the correspondence which had taken place on that occasion, and he would therefore take that opportunity of giving notice that he would, on Thursday next, move that the correspondence which related to the proposal made to the noble Earl for his restoration to the commission of the peace, and which resulted in his non-acceptance of that offer, should be laid before the House. He feared the course taken in regard to the reinstatement of Mr. Kirwan was calculated to have a very prejudicial effect, and to produce a dangerous impression on the other stipendiary magistrates, who are constantly called upon for their exertions for the preservation of the public peace.
§ The EARL of DERBY
said, his noble Friend the late Lord Lieutenant had been obliged through exhaustion to leave the House, and on his part he withdrew the Motion, his object in bringing it forward having been fully attained by the discussion which had taken place.
§ Motion (by leave of the House) withdrawn.
§ House adjourned to Thursday next.