MOTION FOR CORRESPONDENCE. (Hansard, 13 June 1861)

THE EARL OF DONOUGHMORE
moved for Correspondence respecting the granting of a Ticket-of-Leave to Michael Gardiner, a Convict, who pleaded guilty at the Spring Assizes for the County of Roscommon in 1849 to an Indictment for Conspiracy to murder Major Denis Mahon. The noble Earl said it would be in the recollection of their Lordships that in 1847 the south west of Ireland was in a very disturbed state, and that several magistrates and others were shot at, and attempts were made against the lives of a number of persons. Major Denis Mahon, one of the principal landowners in the county of Roscommon, was shot dead a short distance from his own residence. For this murder three persons were arrested, and tried at the Summer Assizes of 1848. One was convicted and hanged; a second escaped conviction, the jury having, through terrorism, disagreed; and the third, Michael Gardiner, who was indicted not for the murder but for conspiracy to murder, and who, in fact, plotted the whole affair, and 992 employed the actual murderers, offered to plead guilty if his life was spared. In 1848 there were sixty-six prisoners for trial in the county of Roscommon,' of whom four were for murder and nineteen for conspiracy to murder. In the following year, to show that crime had not decreased, there were ninety-seven prisoners, of whom nine were charged with murder and fourteen with conspiracy to murder. In the case of the murder of Major Mahon the prisoners refused to join in their panel. The man who fired the fatal shot was executed. The second was discharged, because, although he was assured by a gentleman who was present that the evidence was perfectly clear, the jury dared not agree upon a verdict. Gardiner was then put upon his trial, and offered to plead "Guilty," provided he were assured that his life would be spared. Mr. Monahan was at the time the law officer of the Crown, but it was not until subsequently, when Mr. Hatchel filled that position, that the plea was finally accepted. The result of its acceptance was that Michael Gardiner had sentence of death recorded against him—a sentence which, however, was afterwards commuted into transportation for life. He could not say in what prison the offender had, since 1849, the period of his conviction, been confined by the authorities; but in the month of March in the present year, to the great surprise of the magistrates and people of Roscommon, he received a ticket-of-leave, and was allowed to walk back to the scene of his crime, and, so to speak, to walk over the grave of his victim. It might be said he had behaved well in prison, and that according to the rules acted upon by the governors of our convict establishments he was entitled to the ticket-of-leave which he had obtained; but the simple answer to such an argument was that the sooner rules which admitted of such occurrences as that to which he was alluding were changed the better. He might add that it had been proved in evidence that Gardiner was actually the man who had loaded the gun with which the murder in question had been committed—and some explanation was, under those circumstances, he thought, due from the Government, why it was he had been set at liberty? It was but right that he should also state that Gardiner, having gone back to his former haunts, had, he believed, some time ago betaken himself to Manchester, which was the head quarters of the Ribbon Societies 993 of the United Kingdom, it might be there to receive instructions as to how he should proceed in carrying out the principles to which, before his imprisonment, he had been shown to be attached. He should simply say, in conclusion, that he hoped the Government would take the matter into their serious consideration.

§ THE DUKE OF NEWCASTLE
said, he did not wish to make a single observation in opposition to that revision of the rules of our convict prison which the noble Earl had suggested, but must assure him that so long as those rules remained as they were, the confinement of Gardiner could not with propriety have been continued beyond the period at which his ticket-of-leave had been granted. Although, he might observe, the noble Earl had given notice that he intended to make a Motion on the subject, he yet had not formally done so, and, indeed, there was no correspondence whatsoever bearing upon the point at issue, which, if ordered, could be produced. He might further observe, that as he understood the rules relating to the carrying out of our convict system, prior to the final abolition of transportation in 1857, it was an established regulation that a criminal who was sentenced to transportation for life, and was retained in this country, should be discharged on licence at the expiration of ten years from the time of his conviction, unless during the time of his imprisonment, he should have been proved to have been guilty of any misconduct justifying his further confinement. When transportation was abolished and penal servitude instituted in its stead, it had been found necessary to revise that rule; and proceeding analogically, it had been laid down that any convict sentenced to penal servitude for life should be kept in custody for a period of twelve years, with the same proviso as had previously existed with reference to transportion for life. But to advert to the case immediately under the notice of the House, he should remind the noble Earl he had omitted to mention that another man named Michael Brennan had pleaded "Guilty" on the same occasion as Gardiner to the same offence, had precisely the same sentence pronounced upon him, but had that sentence remitted by the law officers of the day, after having undergone an imprisonment of only two or three years, upon the ground that the evidence against him was much less clear than that against Gardiner. He had explained how 994 the rules with respect to convict prisons had been changed in 1857; but Michael Gardiner was convicted under the old law, and his sentence was commuted to transportation for life. Therefore, he would have been entitled to claim his discharge on licence at the expiration of ten years; but it was felt that his case was so bad that it was requisite to carry the rules to the utmost extent that was permissable, and, therefore, Michael Gardiner was detained for twelve years, and was not discharged before March of the present year. Consequently the noble Earl would see that however much the rules might require modification, no undue leniency had been exhibited towards Michael Gardiner, but that the full punishment was carried into execution. The noble Earl had stated that Michael Gardiner had been very recently walking about Stroke's Town. He (the Duke of Newcastle) was not aware that that was the case, but he was glad that the noble Earl was aware that the man was no longer in that neighbourhood, and had removed to Manchester. He was acquainted with the name of the street and the number of the house where the returned convict was residing. He could not say whether the man had gone to that town for the bad motives glanced at by the noble Earl, or from a desire to get out of a neighbourhood, a stay in which ought, from reminiscences, to be so horrible to his feelings; but the noble Earl would admit that the Government could have taken, according to the usual rules, no other course than that which had been adopted, though it might be a question whether the rules should not have more elasticity than at present.

THE EARL OF EGLINTON
believed that the convict system in Ireland worked generally in a most excellent manner, but he was convinced, from the explanation given and from his own experience, that in this instance nobody was to blame and that the system alone was in fault. He also quite concurred in the hope that that system would be so far changed as to prevent such gross cases as that now brought before their Lordships' notice. He thought that a man condemned to penal servitude for murder for life should be placed apart from his fellow beings for the rest of his life. He was induced to intrude now upon their Lordships' attention in consequence of a case which occurred while he was in Ireland. In an island near Dublin, called Ireland's Eye, a man named Kirwan mur- 995 dered his wife in a most dreadful manner, and upon circumstantial evidence he was convicted and sentenced to death. A memorial, as was usual in all such cases, for a remission of the sentence was presented to him, and to his surprise the memorial was supported by the opinion of the two presiding Judges—Mr. Justice Crampton and Mr. Baron Greene, Judges of the highest character—on the plea that evidence had since come to light which ought to have been brought forward at the trial, and which might have saved the man from conviction. His own impression was that the man, if innocent, ought to be pardoned altogether, and, if not, that the extreme penalty of the law should be inflicted; but, of course, where the two Judges recommended a commutation of the sentence, he could hardly, on his own responsibility, order the man for execution. He felt so strongly on-the subject, however, that he laid the case before the then Lord Chancellor, with the intention of being guided by his decision. The Lord Chancellor concurred with the Judges, and the sentence was accordingly commuted. He nest heard of this dreadful murderer in the following way:—When he was again in Ireland, in 1858, the man's name appeared in a batch with others which were submitted to him with the view of recommending their return from Bermuda. He, however, refused to recommend the return of Kirwan, and he thought he was justified in that course. He was glad to have the opportunity of clearing himself from the imputation of having done, on his own responsibility, that which he felt at the time to be wrong, and of pointing out the possibility of the worst of murderers being brought back upon society under the present system.

THE EARL OF LEITRIM
said, that with the present system of Government in Ireland it was almost impossible to preserve the peace of the country. With regard to tickets of leave, he thought that, if given at all, they should only allow the holders to go beyond the confines of the kingdom; least of all should men who had been convicted of the grossest crimes be allowed to allowed to return to the place where they had committed those crimes.

VISCOUNT DUNGANNON
expressed the satisfaction with which he had listened to the explanation given by the noble Earl (the Earl of Eglinton) respecting the case of Kirwan, and he believed this explanation would give equal satisfaction in 996 Ireland. He had heard with surprise that a ticket of leave had been given to a person who had been convicted, at least, of a conspiracy to murder, and that he should be permitted again to revisit the scene of his former crime and perhaps, as had been forcibly said, to walk over the very grave of his victim. He thought that the release of a man who had committed an offence so closely allied to murder was inconsistent with the safety of human life throughout the country.

THE LORD CHANCELLOR
was also shocked that under any system a person convicted of murder, but whose sentence of transportation had been commuted, could, after the lapse of a few years, revisit the scene of his crime. He heartily concurred in the disapproval which had been expressed with regard to such a system, and he would undertake, with the assistance of the Home Secretary and of the Under Secretary of State (Mr. Waddington), to revise that system, and see whether such an abuse could not be put an end to.

THE EARL OF DONOUGHMORE
expressed his acknowledgments for the assurance given by the noble and learned Lord, and said he was quite satisfied with the result of the discussion which had been elicited.

§ THE DUKE OF NEWCASTLE
said, he appeared to have been misunderstood both by the Lord Chancellor and the noble Lord. What he was explaining was the rule as to convicts in Ireland. The rule as to ten and twelve years' convicts in England was quite different.