Lords Sitting of 28 March 1854

MINUTES.
PUBLIC BILL.—1a Chimney Sweepers.

ADMINISTRATION OF JUSTICE IN IRELAND.
THE EARL OF CLANCARTY: My Lords, when I gave notice on the 21st of
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the Motion I am this day to bring forward for the production of certain particulars of information relative to the cases of John and Hugh Murphy, who were indicted, but not tried, at the late Armagh Assizes for the murder of James Wilson, it may be in the recollection of your Lordships that I read from the Morning Herald newspaper of that day the paragraph which drew my attention to the subject, and which impressed me with the importance of bringing it at once, and publicly, under the notice of Her Majesty's Government, that they might give the earliest contradiction to a statement, so calculated as was that contained in the paragraph in question, to impress the public mind in this country with a most unfavourable opinion of the manner in which justice is administered in Ireland. The interval of a week has not, I trust, passed over without their having communicated with the authorities in Ireland, and being this day prepared to afford to the House some explanation of proceedings in reference to the conduct of Crown prosecutions, of so startling a nature as those which I laid before the House. In order that your Lordships may fully understand any answer that may be given, I must beg leave as briefly as I can, to bring the case again under your notice. It appears that the deceased Wilson, shortly before the occasion on which he lost his life, had had a dispute with the father of the Murphys, but in consideration of his grey hairs, had refused to fight with the old man. The paragraph proceeds:—
"Some time after, when engaged in drawing turf, a challenge was sent to him by John Murphy, the brother of the prisoner, which he accepted. The men engaged in a pugilistic encounter, and had fought two or three rounds, without any interruption or foul play, when Hugh Murphy, having armed himself with a spade, which he brought from some distance, and taking his position on an elevated ground on which the men fought, watched his opportunity, and struck Wilson with so much violence as to cleave his skull, at the same time calling to his brother, with a horrid imprecation on Wilson, 'Now he's down, murder him out'—advice which the brother endeavoured to follow by striking him repeatedly as he lay. Wilson was rescued, but only to be taken to the infirmary, where he died. The Murphys were both arrested, and in due course true bills were found against them for murder by the grand jury. It is said that the family of Wilson were prepared to prove a clear case of conspiracy, on the part of both the Murphys, to murder Wilson. The opportunity was not given them. When the prisoners were arraigned, and had pleaded 'not guilty,' their counsel proposed a compromise with the Crown, according to which Hugh Murphy was to plead guilty of manslaughter. Counsel for the next of kin appealed against such an arrangement, but received a flippant rebuke from the Crown prose-

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cutor, to the effect that the duty of counsel in such cases was to 'assist but not direct the Crown.' The Judge agreed to this reading of the law, and in an address of something very like condolence and compliment, sentenced Murphy to six months' imprisonment. John Murphy was discharged without trial. The Judge who presided on this memorable occasion is a Roman Catholic. The culprit whom he sentenced received a character from his 'pastor,' a Roman Catholic priest."
In connection with this, and bearing out the main allegations with respect to the proceedings at the assizes, I read to your Lordships the following notice of what took place at Armagh:—
"ARMAGH, March 11. John and Hugh Murphy were indicted for the wilful murder of James Wilson. This case (which appeared to have excited considerable party feeling and animosity), was not tried, owing to an arrangement entered into by the counsel for the Crown and those for the prisoners. John Murphy was acquitted, as there was no evidence brought forward against him, and Hugh Murphy pleaded guilty to the charge of manslaughter."
I also read the following report of what the learned Judge (Serjeant Howley) said, on sentencing the prisoner, Hugh Murphy:—
"ARMAGH, March 14. Mr. Serjeant Howley:—Hugh Murphy, you have peaded guilty to an indictment charging you with the manslaughter of a man named Wilson. It appears he and your brother having quarrelled, agreed to fight out their dispute; and while so fighting, and without weapons, you ran for a spade, and having procured one, returned to the scene of the contest and struck Wilson with that heavy spade a blow on the back of the head, in consequence of which he lost his life. You have received a good character, and it is a favourable feature in your case that you made no repetition of the blow, and that you were probably excited in seeing your brother engaged in fighting. The court, therefore, consider it will be sufficient punishment to sentence you to be imprisoned for six calendar months, and kept to hard labour."
Now, my Lords, notwithstanding the very startling doctrine to be gathered from the words said to have been spoken by the learned Judge, that a blow, however deadly, if it be not repeated, constitutes a case of manslaughter only, and not murder, and notwithstanding the apparent inadequacy of the punishment awarded for so atrocious a crime, I feel it right to observe to your Lordships, and I do so with great pleasure, that I have always heard that learned gentleman spoken of, especially in his judicial capacity, with the highest respect—and that among many letters I have received within the last week relative to these Armagh proceedings, all in condemnation of them, one, from a ma-
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gistrate and grand juror of the highest respectability, strongly attests the acknowledged impartiality and uprightness of Mr. Serjeant Howley, as a circuit Judge, but, at the same time, expresses astonishment at the nature of the sentence, and the terms in which it was delivered upon Hugh Murphy. The considerations arising from the whole of the case to which I would wish to direct your attention, are—first, that if the main facts have been correctly stated, and as they are in perfect accordance with the informations sworn before the magistrates on the occurrence of the outrage, and also with those subsequently taken by the coroner at the inquest on the body, I fear they are not capable of being contradicted, and these informations are here before me for any of your Lordships to peruse—I say, then, assuming the facts to have been correctly set forth, it appears that two men, against whom a grand jury had found, upon the evidence submitted to them by the Crown, true bills for murder, and who had been arraigned before the court, and pleaded "not guilty," had been let off—one to go at large at once without any trial, and the other, also, without a trial, with only six months' imprisonment, the same punishment that was awarded at the same assizes, in one case for a simple assault, in another for stealing a cloak, and in a third for stealing from a workhouse a pair of shears and a trowel. The second point to which I would direct your Lordships' attention is the injustice done to the prisoners themselves. Our administration of justice in open court is designed no less as a protection to the innocent, to afford them the opportunity of publicly clearing themselves from the imputations of crime where they have been unjustly charged, than to make our tribunals of justice a terror to the guilty. Now, by the proceedings that have taken place, both these objects have been defeated. From the manner in which the cases of the Murphys have been disposed of, no public trial having taken place, where the facts and evidence upon which the grave charge of murder rested could be sifted, and evidence, if any there was, to establish their innocence, adduced, these two men are left with the brand upon their characters of the bills of indictment for murder, which the grand jury of their county have returned as "true." John Murphy is discharged at once upon the country, without one extenuating circumstance having been put forward in his favour; and of Hugh,

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who agreed to avoid the trial for murder by pleading guilty to manslaughter, all we can learn is, that he received a good character from his parish priest, and that the Judge considered it a favourable feature in his case that he did not repeat the blow which proved fatal to his victim. The third point which calls for consideration is the dispensing power that appears to have been assumed by the Crown prosecutors. Every step has been taken to bring to trial two men accused of the gravest offence known to the law—namely, the crime of murder. The evidence has been arranged, the grand inquest of the county has returned true bills against the prisoners, they are arraigned before the court, and they plead "not guilty" the witnesses were at hand, the next of kin to the deceased had, with the cognisance of the Crown lawyers, employed counsel to assist in the conduct of the prosecution, when, for reasons unexplained, one of the men is discharged, and a trial avoided, in the case of the second, by getting him to plead guilty to a minor offence. I presume the law must be so, as so it was ruled by the court when remonstrance was made against the course taken by the Crown; but if such power of dispensing with the law does rest with the Crown prosecutors, it was, to say the least of it, a most indiscreet and unfortunate case in which to exercise it. The last consideration I will submit to your Lordships as arising out of the case, is the lamentable effect such a mode of administering justice must have upon the country, shaking all confidence in the wisdom and firmness, if not also in the integrity, of the proper guardians of justice. That it has been productive of very serious injury, I regret to say I have the most certain information. I will not trouble your Lordships by reading all I have learnt upon the subject; but when it is represented, as it has been to me, that the frustration of the ends of justice has been a source of triumph on one side, and of indignation on the other, the law cannot be said to have been wholesomely administered. The triumph, I learn by the letter I hold in my hand, was celebrated by a bonfire at the Murphys', and the feelings of those who were before indignant at the murder are now exasperated at the manner in which their appeal to the laws of their country has been set aside. Another gentleman writes to me as follows:—
"Your Lordship's proposed inquiry is highly
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necessary on public grounds. The neighbourhood where the murder had been perpetrated is greatly excited by reason of the strange procedure on the part of the Crown prosecutor; and the risk is, that should any further collision arise, recourse may be had, not to the law of the land, resort to which has proved unavailing, but to lex talionis, a more sure as well as a more summary process."
I will read but one more extract; it is from a magistrate of the highest respectability in the county. He writes:—
"The district in which the sad occurrence took place is very populous and very loyal; the people have been accustomed to respect the laws not merely as corrective, but as protective, and resorted to it with confidence accordingly. The shock given to this confidence by these proceedings will require years to get over. Your Lordship can form little idea of the excitement and indignation which prevail upon the subject."
I need not trouble your Lordships by further dwelling upon the subject. I have said sufficient, I think, to show how important it is that the recurrence of such a case should be guarded against. Much is often said of the maladministration of justice, owing to the want of good juries in Ireland; that, my Lords, is also a subject requiring consideration by the Legislature, for both reason and experience make it plain that with a population so largely under the influence and controlling spiritual power of the priests of the Church of Rome, that power will always, where questions arise in which the interests or asserted rights and immunities of the Church are concerned, be exercised in a manner prejudicial to the impartial consideration of law and evidence. But the case before your Lordships is quite unconnected with the jury system—it is the exhibition of a perversion of justice by those who should see it faithfully executed. That some explanation may be afforded by the Government to palliate the complexion it bears, I certainly do hope, although the hope I once had that it would have admitted of a complete contradiction, I now no longer entertain. Ulterior proceedings I certainly do not propose to found upon the returns I am to move for; my object, my sole object, in moving for them, having been, in fact, to afford to the Government the opportunity of placing before the country the most public contradiction of the statement that had appeared in the public press, or such explanation or disavowal of the proceedings said to have taken place, as might be satisfactory to the minds of those who are jealous of the honour and reputation of our public tribu-

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nals. I, therefore, shall not press for the production of the returns, if such explanation be afforded as, I trust, it will be in the power of the Government to afford. I beg to conclude by moving, in the terms of my notice,—
"That there be laid before this House Copies of the Informations against John and Hugh Murphy, indicted at the late Assizes at Armagh, for the wilful murder of James Wilson; also, Of the findings of the Grand Jury on the Bills of Indictment in each of those Cases; also, Of the Notes of the Judge before whom those Cases were tried; and also, Of the Verdict and Sentence, if any, in each Case."
THE LORD CHANCELLORsaid that, in reference to that part of the Motion which asked for the notes of the Judge, any order of the House could scarcely extend to these, because a Judge might, if he pleased, take no notes at all. The notes which were taken were to guide the Judge's memory, and might be very short; and many very accurate judges took merely sufficient notes to guide their own memories; so that if their notes should be produced they would very probably prove to be of no use to anybody else. In this case, moreover, from its very nature, no notes could be produced, because there was no trial, and therefore no notes were taken. As to the other papers, there could be no difficulty in producing them. He might state to their Lordships that on the day following that on which the noble Earl had given notice of his Motion, he had put himself in communication with the Chief Secretary for Ireland, who had written over to obtain all the information that could be got upon the subject; and it was only that very day, and just before entering the House, that he (the Lord Chancellor) had been put in possession of the results of the inquiries which had been made. No doubt the noble Earl had stated the facts very much as he (the Lord Chancellor) had received them; and he gave the noble Earl full credit for sincerity in bringing forward his Motion, and took for granted that he had done so with the desire that justice should be purely and impartially administered in Ireland. He should, perhaps, be offering a pledge of his own sincerity in making this admission, when he said that he did not consider that the course pursued in the instance complained of was the most discreet way of administering justice, where a charge so serious as that of murder was involved. Whereever there was a charge of murder, the best and most satisfactory course that
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could be pursued—and it was the one invariably adopted in this country—was, to let it be tried, and to let the jury find a verdict of manslaughter, if the circumstances should lead them to the conclusion that a case of manslaughter only had been made out. No doubt, in less grave cases, where the charge was of a complicated character, as, for instance, where there was an indictment for burglary, which involved the breaking into a dwelling-house in the night, and where that indictment included a charge of stealing, he could imagine that it might appear to the Crown prosecutor, upon looking at all the circumstances, that the charge of burglary could not be sustained, that on the prisoner's pleading guilty of the stealing, it might be thought unnecessary or undesirable that the trial for burglary should proceed. The case, however, which the noble Earl had brought under the notice of the House was not of a parallel nature. When he (the Lord Chancellor) was young at the bar, and prosecutions for bank forgeries were rife, it very often happened that two bills would be preferred against the same prisoner—one for uttering the alleged counterfeit note, knowing it to be forged, which was a capital offence, and the other for having it in his possession, knowing it to be forged, which was not capital; and in some cases, where a prisoner pleaded guilty to the minor offence, sentence was passed without going into the capital charge: but he was bound to say, that in his experience he had never known a case in this country in which, a bill of indictment for murder being found, the party charged was allowed to plead guilty of manslaughter, and no evidence was offered as to the graver offence. The result might practically be the same; but he thought it not a discreet course of proceeding. He did not entertain the least possible doubt that Serjeant Howley, having the depositions in which all the facts were stated before him, looked at those depositions, and satisfied himself the Crown prosecutor was perfectly correct in saying there was not the least pretence for finding these men guilty of murder; and therefore they took the course of bringing to a short conclusion that which, if the case had gone on, would have been brought to the same conclusion. That was the state of things as represented to him; and he could only repeat he did not think he should be acting rightly if he said that was, in his opinion, a discreet mode of dealing with the case: he considered it would

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have been infinitely better to have tried the men for murder, though the result would have been exactly the same. As to why the sentence was only six months' imprisonment, that was more than he could pretend to divine. It was impossible for him to know all the circumstances either mitigating or aggravating the offence. The subject must necessarily be a very delicate one, and it could not but be most difficult for any persons to deal with it except those who had read the whole of the evidence, and who had gone minutely into the question; but he thought their Lordships would agree with him that it was a very delicate matter to call a judge to account, or ask him for explanation, for passing too lenient a sentence. The noble Earl had brought the notice forward in an extremely proper manner. He was, no doubt, substantially correct in the statement he had made, and the explanation was that the learned Judge was so satisfied the result after the trial must be the same as without a trial, that he did not think it necessary the trial should take place.
LORD MONTEAGLEwas desirous of saying a word or two upon the Motion introduced by the noble Earl. If there was ever a gentleman in Ireland who had been the means of conciliating and bringing together a large portion of the people of that country, of all religious classes and denominations, that gentleman was Mr. Serjeant Howley. In the unfortunate county of Tipperary, Mr. Serjeant Howley had administered justice, as assistant barrister, with a zeal, ability, discretion, and firmness which had enabled him to overcome almost insuperable difficulties, and to confer a vast amount of benefit upon the population of the district. A proposal to review in that House, upon very imperfect knowledge of the circumstances, the acts of judges, public officers, and juries, was at all times a measure to be viewed with hesitation and with a certain degree of disfavour; for, though he did not mean to deny that a case might arise which might meet with the disapprobation of their Lordships, he was quite convinced that such cases would be of very rare occurrence; and it seemed to him that discussing such matters without any tangible Motion on which they could pronounce an opinion, was fraught with dangerous consequences, and would be prejudicial to their Lordships' House. With regard to the trial of which complaint had been made, he would merely remark
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that nothing could contribute to weaken the administration of justice more than preferring serious charges against judges, and failing to substantiate them. Long before Mr. Serjeant Howley was in a position to exercise a discretion of this nature, it was frequently exercised by other judges, who allowed the withdrawal of indictments which the evidence was not calculated to sustain, and adopted the principle of only going into charges upon which there was a probability of the jury convicting, going on the principle that the certainty of punishment following crime was a very important point of criminal jurisprudence. With regard to the position which the Crown prosecutor in Ireland filled, it was his duty to watch the proceedings and assist in bringing offenders to justice; but that by no means prevented private prosecutors coming forward and pressing charges in which they were interested; and if in this instance the friends of the deceased believed that the parties charged were guilty of murder, the Crown prosecutor declining to prosecute did not prevent them taking that course. On the whole, he believed that the Crown prosecutions in Ireland were exceedingly well conducted. With regard to the question of the too great leniency of the sentence passed upon the prisoner who pleaded guilty to manslaughter, he held that if judges were to be trusted at all, they ought to be trusted with the extent of punishment they thought fit to award.
THE EARL OF EGLINTONhad great pleasure in corroborating the observations made by the noble Lord opposite (Lord Monteagle) with reference to Mr. Serjeant Howley. He was perfectly satisfied that Mr. Serjeant Howley had been actuated by no sectarian or party feelings, and he could assure their Lordships that, when in Ireland, during the indisposition of one of the judges, he had the greatest confidence in authorising Serjeant Howley to take the circuit in his place,
THE EARL OF DONOUGHMOREhad sat by the side of Serjeant Howley when that learned gentleman acted as Chairman of Quarter Sessions for the county of Tipperary, and had been witness to the care, judgment, and efficiency with which he had discharged that duty. He believed the magistrates of the county of Tipperary would join him in the expression of gratitude to Serjeant Howley for the manner in which he had brought the district from a state of crime and bloodshed to a state of

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comparative quiet and freedom from outrage. He believed Serjeant Howley had had no opportunity of making any explanation of this case, but he was convinced the documents would prove his conduct was undeserving of censure.
THE LORD CHANCELLORexplained that he had not communicated direct with Serjeant Howley. He had communicated with the Secretary for Ireland, the Secretary for Ireland communicated with the Attorney General for Ireland, and that Gentleman with the learned Serjeant.
THE EARL OF CLANCARTYbegged to remind his noble Friend that the Crown counsel had the depositions and witnesses before them before they went up to the grand jury; and if the evidence did not seem sufficient to sustain the charge, it ought not to be sent up to the grand jury. He did not desire to press the matter further, after what had been said by the noble and learned Lord on the woolsack.
LORD MONTEAGLEpressed the noble Earl to withdraw his Motion for the papers, as its adoption might lead out of doors to a wrong impression.
THE EARL OF WICKLOWmade the same suggestion, observing that the noble Earl had only given notice of it pro formâ, to afford an opportunity for discussion.
THE EARL OF CLANCARTYsaid, this was certainly so; and as the papers would give no information beyond the facts he had stated, and which it was admitted were correct, he should withdraw the Motion.
Motion (by leave of House) withdrawn.
House adjourned to Thursday next.