HL Deb 08 May 1854 vol 132 cc1395-407

said, that although their Lordships might not be very well disposed to entertain any subject except those relating to the all-engrossing subject of the war, yet he felt it his duty, as an Irishman, to bring forward some incidents which materially affected the administration of justice in Ireland, and the conduct of the Executive in that country, Their Lordships were aware that there was a sanguinary conspiracy existing in that country, or in some parts of it, which produced offences and crimes of a very flagitious nature. The part of the country to which he belonged had, he was sorry to say, more than its proportionate share of that confederacy and the crime resulting from it. Since the month of May, 1849, there had been committed in the county of Westmeath no less than eleven murders, besides five attempts at homicide which did not result in murder. The perpetrators of almost the whole of those crimes had escaped the hands of justice; they had not been brought home to the perpetrators; and the consequence wits, that there was a very sensitive feeling in the country, and when anything was properly brought home to the criminal, unless there was good ground for the interference of the Executive in the exercise of the prerogative of mercy, the dissatisfaction arising from such interference was proportionate. At the last spring assizes there was a man brought to trial for a very flagitious murder. It was no agrarian murder, or murder of a political character—it was committed for the purpose of robbery, and under circumstances of great atrocity. A young man was overtaken upon the high road by another person, who, it came out upon the trial, had meditated the offence for which he was to be tried for a long time previously. He had ascertained that this lad was in the habit of bringing money from one place to another, which he received in execution of his duty to his master. The murderer remained in ambush for sonic time, and when the young man came up he walked some distance with him. He then knocked him down, killed him on the spot, took the money, and came to the neighbourhood of Dublin, where he remained for nearly a year, until he was apprehended by the police, and be was brought down last spring assizes and tried for the offence. The best description he could give of the offence was, to quote the language of Chief Justice Monaghan, a most respectable and highly respected Judge, and a most able Judge also. The Chief Justice said:— He was never present at a trial where the guilt of a man was more clearly proved, and no person who had heard the evidence could for a moment suppose that the prisoner was innocent of the fearful crime of which he was found guilty. The testimony throughout was of the most clear and conclusive character, and no doubt could exist as to the justice of the verdict. He could not hold out any hope to the prisoner in this world, and he implored him to make a diligent use of the brief period of existence allowed him before the grave should close on him, and to endeavour to obtain that mercy from God which he could not expect to obtain from man. They were all thunderstruck in the county of Westmeath when they found that, although the Judge had thought fit to fix a day for the execution of this unfortunate wretch, there had been a commutation of punishment. All they knew was, that a memorial had been got up and forwarded to the Executive, and they also knew from report that the persons who signed it alleged as the reason why the Executive should interfere and commute the sentence, "that they did not wish to have any execution in the county." It was signed, he understood, by several Protestant inhabitants, and, amongst other persons, by the Roman Catholic bishop and by one of the Protestant ministers. Anybody who was in the least degree conversant with Ireland would know that nothing was so easy as to get up a memorial to the Executive for any single purpose whatever, no matter how absurd, or, in the case of the administration of justice, no matter how improper; and when a stone of that kind was set rolling it was impossible almost to stop it. In consequence the Lord Lieutenant of Ireland was the more bound to look into those memorials, to examine and scrutinise them, as well as the motives of the persons signing them, with the greatest strictness. There was this additional reason for it, that the Lord Lieutenant of Ireland was acting as Minister, and also as the Executive, whereas in this country, though the Secretary of State advised the Sovereign what to do, there were two persons to be consulted on the matter. He (the Marquess of Westmeath) believed, from his own experience during fifty years in that country, that if a memorial were got up, petitioning the Government to seize all the barrel-organs in the street, and set them to march before Her Majesty's troops, they would get signatures to it. It was not what a man thought that induced him to put his name to such a paper, but what he saw others do; and the question was, how they were to be guaranteed hereafter from this interruption of the course of justice. He thought the Lord Lieutenant was excessively fond of popularity; and if it were not for the sake of popularity, he did not know what his reason was for acceding to the prayer of the memorial. If the Lord Lieutenant were not actuated by the motives he attributed to him, why did he alter the judgment that had been passed upon Mr. Kirwan, a stipendiary officer, who had grossly neglected his duty, and who had appealed to the popular voice as a reason for having done so? He might also refer to the course adopted at the Clare Assizes, where the Catholic clergymen who raised the disturbance at the election were not touched, though they ought to be in the dock, and Her Majesty's soldiers were put upon their trial for doing their duty. There was also the case of a Solicitor General in Ireland, who had gone down to the county of Westmeath, and in the open day, from a window, preached sedition to Her Majesty's subjects. He (the Marquess of Westmeath) had stated in the House the nature of the evidence he was prepared to adduce in support of that charge; and what was the result? Why, the noble Duke (the Duke of Newcastle) started a collateral issue upon this matter, and led off their Lordships' attention by stating that a noble Lord (Lord Naas) had offered that gentleman office; but the two subjects had no more relation one to the other, than that House had to the mosque of Santa Sophia at Constantinople. The language was denied, but that was the way the charge was met. His reason for reviving the subject at the present moment was this—that if Her Majesty's Government were so ill advised as to recommend to the Sovereign that this gentleman should be placed upon the bench, he (the Marquis of Westmeath) pledged himself, if God granted him life, to move for the language taken down by the police in the town of Moate, transmitted to the then Lord Lieutenant of Ireland, and which language the present Lord Lieutenant of Ireland must have been as cognisant of as he was. He would thus place the Government in this dilemma—either it would have to give a practical proof that sedition was the proper road by which to attain the dignity of the ermine; or else they would have to support an Address, which he pledged himself to move, that this gentleman be removed from the bench, if he be so placed there. What else had the Lord Lieutenant of Ireland done? There had been a religious discussion going on in that country—


What has all this to do with the question?


It proved the truth of the statement he had made, that the Lord Lieutenant was seeking for popularity. Many of their Lordships were aware that there had been much religious discussion in Ireland, and that some of the Protestant missionaries had been grossly abused. It happened, some time ago, that a bill hawker in the city of Dublin, who was distributing invitations to persons to attend religious discussions, was placed in durance for some hours by one of the stipendiary magistrates. A deputation waited upon the Lord Lieutenant to make a complaint of the magistrate; but, although there were no less than ten or twelve instances of stipendiary magistrates being removed, and although similar cases had been invariably dealt with by the Executive itself, without reference to the Court of Queen's Bench, the deputation were considerably gibed by his Excellency, and what might be called, in slang language, considerably "chaffed." They were asked whether they had gone to the Queen's Bench? But he would give no decision, because it would be a party triumph. Though the man himself was of course unable to seek redress in any such way, there were persons who did take the matter up, and the case was brought before the Court of Queen's Bench, where the redress sought for was obtained. After a considerable time, the Lord Lieutenant reprimanded this person. But what happened next? A most respectable man appeared before the same magistrate, and, though perfectly sober, was asked by him if he had been drinking. He complained to the Lord Lieutenant, who wrote a kind of pompous manifesto, stating that Mr. O'Callaghan was wrong in accusing the man of being drunk instead of administering justice; and then came the solemn decision "that inasmuch as the magistrate could not personally know this man, he could have no intention to insult him." When they found the prerogative of mercy used in this manner, must they not suspect there was something sinister appertaining to it? His (the Marquess of Westmeath's) argument with regard to all these facts was, that the Lord Lieutenant was seeking by undue means to gain popularity in Ireland. With regard to the case of the convict Luney, if it had been done in accordance with the opinion of the Chief Justice or in consequence of circumstances that had transpired since the trial, they would be of opinion that the Lord Lieutenant had acted conscientiously, and was not trifling with the prerogative which is among the most valuable institutions of the country; and this would probably be shown by the papers for which he now begged to move, and to the production of which he Loped there would be no objection on the part of the Government. He begged to move an Address for— Copy of any Memorial or Petition to the Lord Lieutenant of Ireland in favour of a Commutation of the Sentence of Death passed upon Hugh Luney for Murder at the late Spring Assizes for the County of Westmeath; with the Signatures attached thereto; also, Copy of the Notes taken for the Crown of the Address made by Chief Justice Monaghan when passing sentence upon the convict; and also, a transcript of any Note or Observation made by Chief Justice Monaghan on any Memorial or Petition which had been forwarded to the Irish Government in favour of a Commutation of the Sentence of Hugh Luney aforesaid.


The noble Marquess has brought a case before the House which, I must say, very little requires such intervention. However I shall direct my attention to this subject, and give your Lordships such an answer as I think will be perfectly satisfactory. The noble Marquess will excuse me—I am sure the House will excuse me—if I do not enter into the suspension of Mr. Kirwan from the magistracy, or into the affair of the Six Mile Bridge, and still less into the appointment of Mr. Keogh. All these subjects have been amply discussed in this House; and with respect to the notice given by the noble Marquess of what he will do when Mr. Keogh is made a judge, I can only say that "sufficient for the day is the evil thereof." But with regard to this case, on which the noble Marquess has founded his Motion, it was one of a most violent outrage, the consequence of which was the death of a young man. The guilty party was tried before Chief Justice Monaghan, and was convicted and condemned to death. A memorial, as stated by the noble Marquess, was a few days afterwards presented to the Lord Lieutenant, signed by the Protestant clergyman of the parish, by the Roman Catholic bishop, by various other respectable persons, magistrates and poor law guardians, and others; and the Lord Lieutenant, instead of acting as the noble Marquess imagines, in order to obtain popularity, and commuting the sentence accordingly, only did what I presume every Secretary of State in England would certainly do in such a case—he remitted the memorial to the Chief Justice who tried the case, for his opinion and advice upon the subject. The Chief Justice, after fully considering and inquiring into the particulars of the case, recommended to the Lord Lieutenant to commute the sentence of death into transportation for life; and he did it, on these ground:—It appeared clear that, although death had ensued, the intention of the man was robbery, and not murder. He had no murderous weapon; the blow was inflicted with a stick, formidable enough, no doubt; but it was manifest that the outrage was committed with the view to effect a robbery, and not to murder the lad. It was also not quite certain that the death ensued front anything that took place at the time of the robbery, for the young man, who died shortly afterwards, as the evidence adduced went to show, had risen, and was able to walk, and he complained of no personal injury, but only of the robbery. However, there was no doubt that his death was the result of the violent outrage committed upon him, and therefore it must be taken that his death was caused by the person actually convicted of murder. I will just ask, under such circumstances, with a memorial signed by highly respectable persons in the place where the trial occurred, and addressed to the Lord Lieutenant, and referred by Ids Excellency to the Chief Justice who tried the case, with a report from the learned Judge that he thought it proper that a commutation of the sentence should be adopted by the Lord Lieutenant, and that the man should be transported for life instead of being hanged, I ask the noble Marquess what he would have said if the Lord Lieutenant, whether seeking popularity or from any other motive, had chosen to pass over the memorial of these respectable persons, and had thought fit not to attend to the recommendation of the Chief Justice, what would the noble Marquess or any body else have said to the Lord Lieutenant, if he had insisted on hanging this man in place of consenting to this commutation? In fact, that is quite a sufficient answer. I hardly know what course the Lord Lieutenant could have taken but to comply with this recommendation. The noble Marquess has spoken of the matter as if the Lord Lieutenant had acted on his own impulse, and with a desire, as the noble Marquess called it, to court popularity. In the latter part of his speech, however, I think the noble Marquess said that if the Chief Justice had given an opinion in favour of the commutation of the sentence, then even he, the noble Marquess, would himself exculpate his Excellency. Well, as I have shown that the Chief Justice did give this opinion, the Lord Lieutenant, however popular he may be, will not incur the censure of the noble Marquess. With respect to the present Motion, there will be no objection, certainly, to give a copy of the memorial and the signatures attached to it; nor to give the notes taken, if any exist—for I know of no notes that were taken—of the Chief Justice's charge. If, however, they were taken by any person, whether for the Crown or for anybody else, if they are in the possession of the Crown, there can be no objection to their production. I must, however, object to the production of the confidential observations of the Chief Justice to the Lord Lieutenant on the memorial, because that was evidently a communication of a private nature, and might affect various persons in assigning the reasons why the Chief Justice had given the opinion that he had done. Therefore, I must decline to give that communication from the Chief Justice.


rose to express a hope that, after the explanation of the noble Earl at the head of the Government, the noble Marquess would withdraw his Motion; because, surely, that explanation must be satisfactory to the noble Marquis and to every reasonable man. The Lord Lieutenant had evidently' done no more than his duty. He received a memorial respectably signed, and referred it back to the learned Judge who had tried the prisoner, and by that Judge, who must have been well acquainted with all the circumstances, he was advised to commute the sentence of death. And he (Lord Campbell) must say, that in giving that advice Chief Justice Monaghan had only maintained the high character that he had ever enjoyed. Because, although undoubtedly the offence amounted to murder—for whenever death ensued after an act of violence done in pursuance of an unlawful act, although there was no intention to murder, in the eye of the law it was a murder, and the guilty person was liable to the extreme penalty—however, there was no intention in this case to produce death, and the Chief Justice gave the advice which he (Lord Campbell) should certainly have given under the same circumstances, namely, that the sentence should not be carried into effect, but commuted to transportation. He could not sit down without entering his protest against such discussions without reason being brought on in either house of Parliament. He admitted that there might be a fair case in which the executive Government might be called upon to answer why they advised the exercise of the Royal prerogative of mercy. But what was the case here? The Judge had certainly sentenced an offender who had been convicted on clear and irrefragable grounds, and been guilty in the eye of the law of murder; but that made out no primâ facie ground for censuring those who advised the commutation of the extreme penalty. Unless, therefore, better evidence in support of such a course could be adduced, he (Lord Campbell) considered these discussions most unadvisable. They might just as well have a similar discussion in every case, and he need not say that the administration of justice would by no means be benefited by such a proceeding.


thought that the noble Marquess (the Marquess of Westmeath) had a perfect right to bring this case before the House. As the Lord Lieutenant of the county, where it was notorious that the number of Ribbon murders was greater than in any other county in Ireland, he had a perfect right to ask for an explanation, because, as the case appeared to him and public, the there was no reason for the commutation of this sentence. All doubt was, however, removed after the explanation of the noble Earl at the head of the Government. The Lord Lieutenant was perfectly absolved from all suspicion of partiality, or any desire to gain popularity, by this act. His (the Earl of Eglinton's) own experience of the routine in such cases was, that the memorial was referred to the Judge who tried the prisoner; and though he did not say that the Lord Lieutenant was always bound to adhere to the decision of the Judge, yet in the case of capital crimes, he thought, if the Judge considered that the sentence of death ought to be commuted to transportation, that almost if not quite invariably, he was bound to adhere to that advice. He, for one, confessed that he should not like to be in the position of the Lord Lieutenant who should determine on hanging a man after the Judge who tried the case recommended a commutation of the punishment. But, referring to the general question, he concurred with the noble Marquess, that it was very desirable that the Lord Lieutenant should not put too much faith in the memorials brought before him, because he (the Earl of Eglinton) knew of an instance in which a memorial was presented to him, praying for the commutation of the sentence—not a capital one—of a man for a crime, and which was signed by every member of the grand and petty juries; and he (Lord Eglinton) did not think that in all his stay in Ireland lie had done a more questionable act than in pardoning that man. In the present instance, he could not see why there should be any objection to producing the observations of the Chief Justice to the Lord Lieutenant on the memorial. He was not aware that there was any secret in such a communication, and he should have had no hesitation himself in referring to and making public the answer of the Chief Justice in a case of murder. Such a document was bound up with the whole case, and deposited in the archives of the Chief Secretary's office, and the noble Earl would not object to produce it, because without it the case was not complete, and the Lord Lieutenant would not be wholly justified.


I will say now, what I ought to have said before, that, of course, the Chief Justice is anxious that his answer should be given; but it is from a sense of duty that I object to give it. It is an unprecedented course, and might lead to very injurious consequences if it were to become a practice.


said, that, happily. Ireland was never in a more tranquil state than it was now, and would bear comparison in that respect with any other part of the United Kingdom. So far as the action of the executive Government could be supposed to have aided in producing such an effect, its results certainly appeared to be successful. But he wished to mention a subject connected with the criminal administration of Ireland, and with which, if the Government could not at once deal, it might, perhaps, indirectly be able to effect an improvement. Of late years, he was sorry to say that there had been an unfortunate disproportion between the punishment awarded to outrages on the person, and that inflicted on offences against property, by the criminal courts in Ireland. It might be a nice and delicate question to determine what the right proportion should be; but he would cite a few recent cases to illustrate his meaning—although he had reason to believe that the grounds of his complaint had been lessened of late, and were likely to be lessened still more in future. At the very last sessions, in one district, the servant of a right rev. Prelate was convicted of stealing bank cheques to a considerable amount, and was sentenced to fifteen years' transportation. No doubt the man deserved this punishment; but in the same court, on the very same day, a man who had stabbed a policeman so severely that his life was in danger for several weeks was only sentenced to twelve months' imprisonment. Again, in his own county (Galway) two men were committed for burglary without personal violence, and the one was sentenced to four years and the other to six years of penal servitude; but on the same circuit, at another assize town, a man was charged with lying in wait for another man, after a quarrel, with an iron bar, and striking him so violently that he died, and, having been convicted of manslaughter, was sentenced only to a year's imprisonment. He mentioned these instances, not with a view of pointing them against any particular learned Judge, but simply Ito illustrate a system of what he considered was inadequately punishing outrages against the person as compared with other offences, and which system, in his opinion, and in that of many other persons connected with Ireland, had worked very mischievously for some years in that country. He alluded to this subject with great diffidence, but he trusted that the Government would consider whether what he had stated was or was not deserving of their attention.


in reference to the noble Marquess (the Marquess of Clanricarde) with regard to the apparent severity of the punishment of offences against property as compared with those against the person, said, that he was certainly inclined, on reading the reports in the newspapers, often to concur with him in his opinion; but the noble Marquess would admit that there were often such shades of distinction in many cases that it was almost impossible for the most careful reporter to give the exact circumstances of each. Again, the legitimate object of punishment, abstractedly considered, was the prevention of crime; and it might well happen upon that principle, that it was not the most revolting crimes that always required to be met with the severest punishment. The noble Marquess stated that the servant of a Bishop who committed a robbery was transported for fifteen years, whereas a man who stabbed a policeman only received one year's imprisonment. Now, if the noble Marquess ever took part in the administration of criminal justice, he would have observed that the Judges were often thwarted, supposing them to be animated by a similar feeling to that of the noble Marquess, by what took place at the trial. In very many cases of a violent nature, the jury, regardless of the oath they had taken, only found the person guilty of a common assault, and the moment that was done the Judge was powerless, for he had, of course, no option but to apportion the punishment to the finding of the jury. He (the Lord Chancellor) had found this in his own experience, and so had other Judges; and the same thing might have been the case in Ireland, although he could not say for certain that it had. If it came out that the death of the person attacked was not intended, although the prisoner might have been legally guilty of murder, the jury might refuse to find him guilty of that grave charge, and would only find him guilty of a common assault. This would account for the infliction of a light punishment in these instances.


replied. He could not accede to the proposition of the noble Earl at the head of the Government. If the Chief Justice had given his opinion in favour of a commuted sentence immediately after the trial—if the recommendation to mercy had accompanied the record of the trial, it would have been satisfactory. The precise point to ascertain was on what grounds the Lord Lieutenant had exercised the prerogative of mercy, and the only valid justification was to be sought in the reasons assigned by the Judge. He made no accusation against the Judge, than whom he believed no more able or more excellent man ever presided on the bench; but he wished to know the reasons on which he had formed his opinion.


hoped the noble Marquess would withdraw his Motion altogether, after the perfectly satisfactory statement that had been made by the noble Earl. It was extremely desirable to put a stop, as much as possible, to the heavy expenses in which the public were involved by the printing of all sorts of returns and papers, very many of which served no other purpose whatever than to indulge the curiosity of individuals. If the noble Marquess particularly wished to see who the persons were that had memorialised the Lord Lieutenant in the particular case, he could, no doubt, readily have his curiosity satisfied, the next time he went to Dublin, by only calling at the Castle.


concurred with his noble and learned Friend the Lord Chief Justice of England in approving highly of the Lord Lieutenant of Ireland's conduct in first taking the usual course of referring the petition to the learned Judge who tried the case, and in afterwards yielding to the advice of that learned Judge. As to whether the learned Judge was right or wrong in the advice which he gave, he (Lord Brougham) had no means of discovering, not knowing the circumstances of the case. The learned Judge who tried the case had cognisance of all the circumstances that came before him on the trial, and on the recollection of those circumstances, together with what other further information he could obtain when the memorial was referred to him by the Lord Lieutenant, he conscientiously advised the Lord Lieutenant to commute the sentence of death into transportation for life. The Lord Lieutenant was justified—that, indeed, was hardly the proper expression—he really had no choice, but to yield to the recommendation of the learned Judge, and to exercise the prerogative of mercy to a limited extent in favour of the prisoner. Nothing could be more wild than the idea, if ever it should get abroad, which the noble Marquess appeared to be ap- prehensive of—nothing could be more wild than the idea that because it was a bludgeon with which the foul crime was perpetrated, therefore it was less a murder, or that because it was a murder committed in the act of committing another capital felony—namely, robbery—therefore the learned Judge had recommended a commutation of the sentence, and the Lord Lieutenant had yielded to the recommendation. He (Lord Brougham) had been in conversation with his noble and learned Friend behind him (Lord Lyndhurst) on this subject, and he authorised him (Lord Brougham) to say that he took precisely the same view as he had now stated.

On Question, Motion, as amended, agreed to.

House adjourned till To-morrow.