Lords Sitting of 6 March 1873

MINUTES.
PUBLIC BILLS—Second Reading—Drainage and Improvement of Lands (Ireland) Provisional Orders (25); Intestates Widows and Children (33).
Report—Epping Forest* (19).
Third Reading—Polling Districts (Ireland)* (34), and passed.

INTESTATES WIDOWS AND CHILDREN BILL.
(The Lord Chelmsford.)
(NO. 33.) SECOND READING.
Order of the Day for the Second Reading, read.
LORD CHELMSFORD,in moving that the Bill be now read the second time, said, its object was to relieve the families of poor persons of a charge which bore hard upon them at the time when they could least bear it. It frequently occurred that poor persons died intestate possessed of shares in cooperative societies, or having small debts due to them, or other small property from which their widows or children could derive no benefit without taking out letters of administration; and it was the purpose of the Bill to relieve them from this expense. It was provided, therefore, that the widow or child or other relative of an intestate, on making an affidavit before the registrar of the county court of the district that the whole estate did not exceed £100, might receive from the registrar a certificate, sealed with the seal of the Court, which should entitle such person to get in the estate.
Moved, That the Bill be now read 2a—(The Lord Chelmsford.)
THE MARQUESS OF CLANRICARDEasked the noble and learned Lord whether he would be willing to extend the operation of the Act to Ireland?
LORD CHELMSFORDsaid, he would be very glad to have the Bill extended so as to apply to the whole of the United Kingdom; but at present he had no intention to make the attempt to extend it to Ireland.
Motion agreed to.
Bill read 2a, and committed to a Committee of the Whole House To-morrow.

BASTARDY LAWS AMENDMENT BILL.
(The Earl of Shaftesbury.)
(NO. 29.) COMMITTEE.
Order for Committee read.
Moved, That the House be put into a Committee on the said Bill.—(The Earl of Shaftesbury.)
THE MARQUESS OF SALISBURYsaid, that as physical force had its limits, he had been unable to carry in from the Library all the statutes in which these laws were contained; but he had brought in a number of them, and when he looked at those which were now before him and at the Bill, he could not but say the Bill was drawn up in that careless manner which characterized so many Acts of Parliament, and which had drawn upon the Legislature such sharp reprimands from the Judges of the Superior Courts. The Bill was another example of these defects. It purported to amend the Bastardy Laws Amendment Act, 1872, and the way this was done was merely by referring to anterior Acts. Five of the seven sections were references to sections of preceding Acts; but surely the workmanlike way of dealing with the subject would have been to repeal the Act of last year and the preceding Acts, and to bring in a comprehensive Act artistically drawn. He did not at all dispute the object proposed by the promoters of the Bill; but it was very desirable that the law, whatever it was, should be made clear and easily comprehensible. The noble Marquess, having pointed out many points in the law which required amendment, suggested that the Committee should be postponed in order that the Amendments might be previously prepared.
LORD REDESDALEsaid, that it would be inconvenient to make the proposed Amendments in Committee, and also suggested that the Committee should be postponed.
THE LORD CHANCELLORsaid, that in his minute criticisms of this measure, which had already passed through the other House of Parliament, his noble Friend (the Marquess of Salisbury) showed what a useful censor of proposed legislation he might be, and of what advantage it would be to have all Bills read through by some one like his noble Friend before they were sent up for the Royal Assent. He thought it would be well to defer the Committee in order that the suggested Amendments might be considered.
THE EARL OF SHAFTESBURYsaid, he had no objection to postpone the Committee.
Motion withdrawn; Committee put off to Tuesday next.

JURIES ACT (IRELAND), 1871.

  QUESTION.
  THE EARL OF LIMERICKrose to bring under the notice of their Lordships certain statements made with reference to the new Juries Act passed for Ireland in the Session of 1871. The statements had reference to the Clare Spring Assizes, and were as follows:—
  "CROWN CoritT—Tuesday.
  "A middle-aged woman named McMahon was arraigned for committing an assault and wounding one Mary O'Loughlin. The prisoner was brought before the judge at the last assizes, but being found incapable of pleading was put back. The following jury, summoned under the new Act, was then empannelled to try whether, on the present occasion, the prisoner was in such a state of mind as to be capable of pleading:
  "Pat Halloran, foreman; John Baily, Martin Eagan, James Fahy, John B. LeFair, James Nagle, Anthony O'Brien, Edmund St. Lawrence, Edmund Vaughan, John Arkins, Daniel Baker, and John Caher.
  "This being the first jury empanelled under the new Act the proceedings were watched with close attention, and comment was freely indulged in regarding its working. After the list had been called over and the jurymen had taken their places, it was found that many of them could not speak the English language at all, whilst numbers could neither read nor write, and owing to the ignorance of the duties they were summoned to discharge the Clerk of the Crown made repeated ineffectual attempts before he ultimately succeeded in having them sworn in properly. Dr. W. Cullinan then gave evi-

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  demo that the woman was incapable of pleading, and on the issue paper being handed up to the foreman, it was found he was totally ignorant of the art of writing, and the verdict had to be written by another juryman who happened to write. Every person in court seemed to be amused at the whole proceeding and the grotesque appearance of the jurors.
  "The woman was then ordered to be sent to an asylum."
  "Several grand jurors expressed strongly their disapproval of the working of the Act; and the following resolution, which was proposed by Mr. William Carey Reeves, was passed unanimously: 'We, the grand jury of the county of Clare, assembled at the Spring Assizes, 1873, beg to protest most strongly against the Juries (Ireland) Bill, 34th and 35th Vict. chap. 65, as the Act is most complicated and expensive to the county rates, and some provisions in it are calculated to impede the administration of justice.'"
  Although several very important cases were tried at the Clare Assizes there was not one conviction. Amongst the cases there was one of an attempted assassination. No harm, fortunately, was done to the person attacked, the weapon having burst, shattering one hand of the assailant, who was shortly afterwards arrested. No attempts are stated to have been made to prove that he was not the man who held the weapon, yet he was acquitted. Similar, though more general, statements had been made as to the working of the Act in other counties. In Meath the grand jury passed a resolution condemning its working, and it seemed that in Leitrim the jury were scarcely acquainted with the nature of their duties. It was the same in the county with which he was more immediately connected—the county of Limerick. In some cases the Judge was stated to have openly expressed his disapprobation at the conduct of jurors, and in one instance the prosecuting counsel withdrew from the prosecution, seeing that justice could not be obtained. At Limerick, a keeper of the Limerick Lunatic Asylum was indicted for the manslaughter of a lunatic. This man was acquitted, but the Judge refused to make an order for the prisoner's release until he should hear from the Counsel for the Crown that no other charge was to be preferred against him, adding that he had not the least hesitation in pronouncing his entire dissatisfaction with the verdict. In another case, the Judge said that if the jury believed certain evidence, he should direct them to convict the prisoner—adding
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  "He was obliged to give this direction plainly to them, because during the present assizes verdicts had been returned by juries which quite amazed him, and which were, in some instances, in direct opposition to the evidence."
  Nevertheless, the jury could not agree; and the Judge said he would discharge this jury and have another sworn to try the prisoner in the morning; and he would, in so doing, impose the obligation on the Crown that they should see that no friends or relatives of the prisoner were empanelled. On the following morning the prisoner pleaded guilty, and the Judge, in passing sentence, said that the jury sworn the day before to try the case had forgotten the obligation of their oaths and acted corruptly. If these statements were correct, contempt would be thrown upon the very idea of a Court of Justice, and it was most undesirable that justice should be made ridiculous in Ireland. It might be said that the new Act was only on its trial, and that time would cure many of these defects. But this appeared to him to be impossible; because, as the Act had led to the introduction on juries of persons who, from ignorance or incapacity, were incapable of discharging the duty of a juror, it appeared to him that, short of an alteration in the law itself, nothing could bring about an improvement. The working of the Act had produced a very grave state of things, because by means of it the administration of justice in the Criminal Courts was almost paralyzed throughout a large portion of Ireland. He begged, therefore, to ask, Whether Her Majesty's Government has any information as to the truth or otherwise of the statements made in respect of the occurrences at the Clare Assizes; also, whether Her Majesty's Government propose to introduce during the present Session of Parliament a Bill to amend the Juries Act (Ireland) 1871?
  LORD O'HAGANsaid, the Notice given by the noble Earl was a very reasonable one, because the subject itself was a very important one, and the statements made with respect to the working of the new Act ought to be investigated, but he could only answer as to the particular case placed upon the Paper, but he hoped that when he had answered the Question of which the noble Earl had given Notice he should be allowed to say a few words on the principle and the pro-

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  visions of the Act itself, as it had been subjected to such hostile criticism. He thought, however, he had reason to complain that the noble Earl, travelling beyond his Notice, had referred to circumstances alleged to have occurred at other assizes than those of the county of Clare, and had asked for an explanation of those as well as of the circumstances referred to in his Notice.
  THE EARL OF LIMERICKsaid, that several days ago he sent to a Member of the Government Notice that he would refer to those other circumstances.
  LORD O'HAGANsaid, that he had unfortunately not arrived in time to receive intimation of the noble Earl's enlarged Notice; but as the statement with reference to the Clare Assizes had already been made in the other House of Parliament, the Irish Government had been able to make inquiry on the subject. The way in which the charges contained in the statements were put forward showed a good deal of exaggeration on the part of those who made them. Their Lordships had heard the statements, and he would now read to them the explanation of the alleged occurrences addressed to the Under Secretary to the Lord Lieutenant from the Crown Office at Ennis—
  "Crown Office, Ennis, 24th of February, 1873.
  "Dear Sir—I have to acknowledge the receipt of your letter of the 22nd instant, and, in reply, beg to inform you that, in calling over the long panel, in one instance one juror answered for another and was sworn, and when it became necessary, on the close of the trial, to return the verdict and sign the issue paper, it was discovered that the juror could neither read nor write, and the second juror on the issue paper had to sign it as foreman. In another case a juror, when called, answered, and on coming to the book to be sworn it was ascertained he could not speak English, and he was directed to stand by. In some instances when jurors were called it was said that they appeared, whereas, on repeating the call, it was found that they did not. There may have been other illiterate persons on the panel, comprising 234 names, but they did not come under my notice in Court.
  "I have the honour to be, Sir,
  "Yours very truly,
  "GEO. SAMPSON.
  "Thos. H. Bourke, Esq."
  Their Lordships would see that the "many who could not speak the English language" reduced themselves to one, and that the "numbers who could neither read not write" turned out to be one also. The Act of Parliament provided for the ease of persons who could not speak the English language—they were to be set
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  aside—and the one person who was found to be in that position at the Ennis Assizes was directed to stand aside. The "statements" appeared to be like the old story of the three black crows; but although these statements were much exaggerated, neither he nor the Government undervalued the importance of the matter; and accordingly directions had been given by the Irish Government for searching inquiries in every county of Ireland with the view of obtaining authentic information as to the working of the Act in order that they might take such action as might seem necessary. Having said so much of the county of Clare, he must decline to follow the noble Earl into the county of Limerick; but he thought it right to say information had reached him that though gentlemen of considerable station had been called on to serve as jurors, they did not answer to their names. One of the objects his hon. and learned Friend the Attorney General for England sought to carry out by the Jury Bill he had now before the House of Commons was to have a mixture of the higher with the lower classes on juries. That would be desirable in Ireland as well as in this country; but it could not be effected if gentlemen would not come forward to serve. He would have said no more, but he thought it due to the Government and to the administration of justice in Ireland that something should be said in reference to the measure with reference to which these questions had arisen; and as he was the person who had introduced the Bill on behalf of the Government, he thought it only becoming that he should rectify some mistakes as to the construction of the Act, calculated more or less to bring the administration of justice into contempt. The condition of things in Ireland when the present Administration came into office made it requisite that something should be done with respect to juries in that country. It was unsatisfactory in the last degree, and yet he was sorry to say it had existed for some 20 years before that time. Economic and political changes in Ireland had made an alteration of the system on which juries were empanelled very desirable. Forty or fifty years ago, the persons who were eligible to serve as jurors were leaseholders or freeholders. In course of time, the list of leaseholders dwindled very considerably, and in fact

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  almost cease to exist, so that the class who had formerly furnished jurors really became extinct. There were rated occupiers in abundance; but as they held only from year to year they were ineligible for serving on juries. The consequence was, that there was scarcely a county in Ireland in which a really legal panel could be constituted, and objections were constantly taken to the way in which it was made up. Owing to the want of qualified jurors among members of the rate-paying classes and to other circumstances, the sub-sheriffs had in their own hands the power of making the panel pretty much as they wished it to be; and this power was exercised, he would not say generally, but at all events in a sufficient number of instances, in such a manner as to shake the confidence of the people in the administration of justice. From 1850 down to 1871 every sucessive Government tried to do something to alter the Irish juries system, and no fewer than nine Bills, all of which proved failures, had been introduced with the view of remedying a recognized evil. The evil had become so intolerable that the present Government felt bound to intervene. When the present Act was prepared its provisions were very carefully considered, and three persons of competent qualifications were engaged in its preparation—a Queen's Counsel, and a junior of the Irish Bar, and a statistician to whom the Government were much indebted. The objects kept in view were two—first, to secure in Ireland perfectly impartial juries, who should not be chosen or controlled by any party or faction; and next, to save men of business from a grievance which was felt in England also—that of having to serve too often on juries. The main provisions of the Bill were prepared in accordance with the recommendations of a Committee which sat many years ago, and was one of the strongest Committees ever nominated by the House of Commons, numbering as it did among its members Sir James Graham, Mr. Bright, the late Lord Mayo, Lord Lisgar, and other eminent Members. That Committee was in favour of a rating qualification for jurors. One of the objects of the Act of 1871 was to secure that and to have the jury empanelled by rotation. The system of rotation was the one which had been in use in Scotland since
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  the 6th of George IV., and the Attorney General proposed to introduce the same system by means of a ballot. In 1858 his right hon. Friend the Lord Chief Justice of the Queen's Bench in Ireland, Mr. Justice Whiteside, and the late Lord Mayo introduced a Bill founded on the same principle, and when speaking in reference to that Bill the right hon. Gentleman said—
  "It made partial juries impossible, converted the Sheriff from a judicial to a Ministerial officer, and compelled him to go through the book in regular order, giving gentlemen who had served a certificate to that effect, and not calling upon them again till others had taken share of duty."—[3 Hansard, cl., 2285.]
  In the various Bills which had preceded the Act of 1871 the qualification proposed for a special juror was from £50 to £60, and that for a common juror from £20 to £30. When the Bill of 1871 was being prepared, the Government took £30 as the qualification for a common juror and £100 as that for a special juror. He (Lord O'Hagan) introduced the Bill in their Lordships' House. Ample time was given for its consideration—two or three months; but no objection was made to the qualification until the Chamber of Commerce in Dublin made a representation to the effect that the Bill would not work in the county and the county of the city of Dublin, nor in other counties, unless the £100 qualification for special jurors were reduced to £50. In consequence of that representation the proposed reduction was made; but after the Bill got to the House of Commons, the Committee, at the instigation of some Irish Members, made a considerable reduction in the qualification for common jurors. It might be thought that reduction in the qualification had been carried too far—he did not say it was so—but as the Government were responsible for the preparation of the Bill, they did not think that a full and searching inquiry on that point ought to be refused. In The Times the other day he read that in England, within some four or five years, they had had three separate Acts to regulate the constitution of English juries, and that there had been four Select Committees of the House of Commons to consider those successive Acts. It would, therefore, have been a marvellous thing if they in Ireland had been able all at once to reach perfection in framing a Juries Act under the circumstances he

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  had mentioned. He could only say, on the part of the Government, that they were prepared to use, and were already using, every means in their power to obtain sound and accurate information as to the working of that Act, and as soon as that information had been obtained in the course of the present Assizes, it would be the duty of those charged with that particular part of the administration to see whether any amendment of the Act was necessary, and, if so, to effect that amendment as promptly and as completely as possible. He believed that however much the details might require to be modified, it would be perfectly possible, upon the same principles as those on which the present Act was founded, to secure for the administration of justice the services of an intelligent and independent body of jurors, who would be free alike from the dominion of prejudice and from the taint of corruption.
  THE MARQUESS OF CLANRICARDEurged that before Parliament rose seine Bill ought to be introduced, even if it were only to suspend the present Act for a time, because the present state of things called imperatively for an immediate alteration in the mode of empanelling juries. In illustration of the existing system the noble Marquess mentioned, among other cases, one in which five jurymen, who had sat upon an Irish trial, waited the next morning upon the Judge to toll him that they had not at all intended to bring in the verdict which their foreman had returned.
  House adjourned at half past Six o'clock, 'till To-morrow, half past Ten o'clock.