§ THE MARQUESS OF LANSDOWNE, in rising to call attention to the Report of the Committee appointed to inquire into the operation of the Irish Jury Laws, and to ask, Whether Her Majesty's Government propose to act upon any of the recommendations of the Committee? said, their Lordships would recollect that, during the last Session of Parliament, a Select Committee of the House was appointed to inquire into the operation of the Irish Jury Laws. There was little difference of opinion as to the necessity of such an investigation. Ten years had passed since a revolution had been effected in the jury system of Ireland—a revolution which was a good deal questioned at the time, and had been a good deal discussed since. The legislation of his noble and learned Friend (Lord O'Hagan) was an attempt to popularize trial by jury in Ireland. Up to the year 1871 the jury system had existed somewhat as an exotic on Irish soil. The qualification for service on the jury was so high, the system of selection by the Sheriff so little suited or convenient to the habits of the people, that it had very little hold of their sympathies. But the legislation of his noble and learned Friend the late Lord Chancellor of Ireland changed all that, and substituted for the high and exclusive qualification then in force a low rating qualification, and for nomination by the Sheriff selection through the mechanical agency of the ballot.
The first question which the Select Committee had to consider was whether the general direction of those changes was right or wrong; and he believed he might say with confidence that the Committee were unanimously of opinion that no reversal of the spirit of that legislation could be contemplated at the present time. He thought there were many reasons why such a conclusion was irresistible. What was the real justification of a recourse to trial by jury? They did not resort to the assistance of the 12 persons who chanced to be called together into the jury-box because it was impossible to ascertain the law, or to enforce it without their assistance, but because their finding gave them some guarantee that the average intelligence of society was 430 in sympathy with the law, and that the action of the Courts, enforced with this sanction behind it, would be approved and supported by public feeling outside. The jury was the connecting link between, the dry technicalities of the law and the common sense of the people of the country generally. He did not think that anyone would contend that the old unreformed juries had fulfilled that condition. The old qualification was so high that it was at times necessary to ignore it altogether; and the selection by the Sheriff, though he could not say that there was evidence to show that it was used corruptly, yet was undoubtedly open to suspicion. The Committee, therefore, were of opinion that the general direction of his noble and learned Friend's legislation could not be reversed.
Admitting, then, the principle of the Acts of 1871 and 1876, the Committee had to consider how far the juries brought together under those Acts had performed their duties satisfactorily or not. What, to begin with, was the composition of those juries? He was sorry to say they found very considerable reason for dissatisfaction with the manner in which they were composed. The structure of common juries in Ireland was a reflection of the weakness of the structure of Irish society generally. Irish society in most parts of the country was purely agricultural; and the Committee found that, as a rule, and in most parts of Ireland, the common juries were composed exclusively, or almost exclusively, of persons belonging to the farming class. There was a complete want of that variety in the composition of juries which was found in this country. It was, no doubt, to be expected that in a country such as Ireland, with a low rating qualification for service on the jury, that there should be a predominance of farmers in the jury-box; but that did not account for the complete absence of any representatives of the better educated and more independent classes. Such an exclusion, most certainly, was no part of Lord O'Hagan's intention. Lord O'Hagan had, indeed, expressly stated his conviction that those classes ought not to be, and would not be, excluded by his Act. The Committee had endeavoured to discover how it came to pass that those persons of better position—the representatives of property and education—came to be so 431 completely absent. They found that there were several causes that helped to keep them out. In the first place, a certain number of the higher class of jurors were required for service on the Grand Juries; others, again, were absorbed by the special juries. Again, it was the fact that among the higher classes there were many who, no doubt, had a great disposition to shirk service on the jury. He did not know that they could be much surprised at that, because service on a jury was not particularly attractive in any part of the United Kingdom; and in Ireland there were various reasons why such service was specially unattractive. The Committee, at any rate, found that the fines imposed upon jurors who were not in their places when the panel was called over, though perhaps sufficient to insure the attendance of the humbler jurors, did not deter their wealthier brethren from absenting themselves. There was another reason which operated in the same direction. The accused person in every case of felony had a right to challenge 20 names on the list; and there was the strongest evidence to show that that right was generally made use of in order to exclude from the jury any person who, from the fact that he belonged to a class somewhat superior to the ordinary run of jurors, might be expected to be a man of particular independence of character, and likely to hold opinions at variance with those which might happen to be prevalent in the locality. In this manner, and by the combined action of these different causes, the panel, originally deficient in variety and in respect of the representation of the better educated and more independent classes, came to be, in the end, entirely denuded of them, until in nine out often juries they were almost unrepresented.
Such being the composition of the juries, the Committee had to discover how they performed their duties. He was glad to say they had received evidence from several districts tending to show that the conduct of juries was all that could be desired; but from many other districts—and notably from those in which the present agrarian agitation was going on—they found that the disquieting rumours which had reached their ears were only too well founded. He had often heard it said that the break-down of justice in many parts of Ireland was due, not so 432 much to the misconduct of the juries, as to the difficulty or impossibility of obtaining evidence. It could not be denied that there was the greatest difficulty in obtaining evidence. No one who read the statistics, and saw how large was the number of crimes committed, and how small the number of persons in proportion who were made amenable, could doubt that that absence of evidence was one of the great difficulties with which they had to contend. How could it be otherwise? How could they expect those terrorized peasants to come forward and tender evidence when they knew beforehand that their evidence would be disregarded by the juries? The persons who were in a position to supply evidence knew that if they did tender it, it would lead, not to the conviction of the person accused, but to their own punishment by that terrible organization which now pervaded too many parts of Ireland. They were in a vicious circle. They did not get evidence because they did not get convictions, and they did not get convictions because they did not get evidence. He thought it, however, his duty to impress upon their Lordships that, although there was a great difficulty in obtaining evidence, there were a large number of cases in which the evidence was forthcoming, and in which the jury, in spite of it, refused to convict. He would read to the House an extract from the evidence of Mr. Justice Lawson. This was Mr. Justice Lawson's account of his own experience—
Three men attacked a house at night near Tralee, with their faces blackened and disguised; they were knocking at the door, calling to have the gun brought out. While they were engaged in this operation three policemen came up, and the head constable instructed his men each to capture a person; he himself captured his man, and held him; the other two persons escaped.In that case the accused person was caught red-handed?—He was caught red-handed. I said to the jury—'This is the man before you now whom the constable caught at the door and took to the barracks. He has been brought from the barracks here, and there he is before you.' That was of no avail whatever. When that verdict was announced the court-house rang with applause from all the spectators present. The sub-sheriff informed me that on the way down from the court-house the men were followed by a shouting multitude, who cried out—'We knew they would not dare to find you guilty.' That is case No. 1. Now to give another case, which is a remarkable one. Four or five men came to a house at night; they knocked up the inmates, they took the man of the house out of his bed, 433 put him down on his knees, and cut his ear; they were persons well known to the inmates of the house, and were living not very far from them. The inmates of the house identified them all. There were five of them there, and they were all acquitted.Was any defence set up in that case?—Yes; there was the usual fabricated alibi.May we understand that you quote these cases as cases typical of the prevailing state of things in that part of Ireland?—I think so; quite.Evidence to the like effect was given by Mr. Justice Fitzgerald.I should mention, with the permission of the Committee, two remarkable cases as illustrating what was going on. One was a prosecution against two persons for retaining forcible possession. The evidence was quite clear.… The defence was that they were put back by a blackened, and armed, and disguised party, which is a common excuse; but it turned out that the leader of the blackened party was the son of one of the defendants, and the brother of the other. I pointed out to the jury that, even though they might have been excused for being put back forcibly in possession, they were not excused for forcibly detaining, which they had done, and saying that they would never give up possession. To my surprise in that case, after giving proper direction to the jury, without turning round, they acquitted both prisoners, and acquitted them amongst thunders of applause in court. I observed myself that the applause came from a particular direction, and that was the place set apart for jurors in waiting; and the applauders were the jurors in waiting. Upon that occasion I addressed very strong remonstrances to them, and those words have equally been interpreted as words of menace, whereas they were words of warning only. I told them that if that kind of thing went on it would lead to a suspension of trial by jury.Now, the evidence given by these witnesses was entirely confirmed by the statement of the hon. and learned Gentleman the Solicitor General for Ireland in the House of Commons. That hon. and learned Gentleman, in August last, said that there were then 192 "suspects" in gaol; and he added that in 119 cases which he had picked out from the gross number of offences it would have been the duty of any honest and impartial jury to convict the persons accused.The Committee had to consider these facts, and to endeavour to obtain some explanation of the causes to which they were attributable. They had to consider, in the first place, whether the misconduct of the juries could be attributed to a want of intelligence on the part of the jurymen. That was not an explanation which the Committee was 434 able to accept. There had, no doubt, in the early days of the new system, and before the jurors became familiar with their duties, been several grotesque exhibitions of ignorance on their part. The evidence, however, went to show that in this respect the common juries were steadily improving; and he was bound to add that he did not believe that anyone acquainted with the character of the Irish peasants would accuse them of being deficient in point of intelligence.
Then, again, there was the question of intimidation. Beyond all doubt there were cases in which fear had operated. How could it be otherwise, at a time when terrorism was so prevalent, and when persons in every class of life, and in regard to every kind of transaction, were deterred by threats from acting according to their own judgments. They had had, within the last few days, a striking illustration of this. The Government had been obliged to offer a reward of £100 for the detection of persons who had, in the city of Cork, posted placards threatening with vengeance any jurors who should venture to do their duty during the recent Assizes. There could, therefore, scarcely be a doubt that jurors were at times liable to such intimidation. The conclusion, however, to which the Committee had come was that, if there had been miscarriages of justice, they were due not so much to the ignorance or to the fears of the jurors as to a third cause, partly connected with the unfortunate history of the country, partly resulting from the pernicious influences which had lately been brought to bear upon the uneducated classes in Ireland. He was afraid they could not shut their eyes to the fact that in many parts of Ireland the sympathies of the people were entirely opposed to the law of the land, and that, in judging of certain questions, they adopted a standard of right and wrong which was not the standard of any Act of Parliament. It had been stated to the Committee by witnesses that the people habitually spoke of one class of crime as being "dirty," and of another class as being "clean." They would say—"Yes; I was convicted, but not, thank God, for anything disgraceful." The kind of crime which was considered as specially venial was, in the first place, any offence arising out of political or social differences. Then it 435 appeared that the whole class of aggravated assaults were looked upon in a particularly favourable light by common jurors. One witness spoke of the "usual Tipperary fracture," which involved not only the breaking of the law, but the breaking of another person's head, as being regarded with exceptional indulgence. But it was, above all, in cases arising, directly or indirectly, out of land that juries could not be depended upon to do their duty. In such cases there could be no doubt that the jurors entered the box having made up their minds to acquit the accused. As the Prime Minister said, last summer—"In agrarian cases the whole judicial system had completely broken down;" and Mr. Justice Lawson said that—
To send such cases for trial, and to send Judges round to try them, with a certainty of a failure of justice, was a great deal worse than useless, because it was the worst public manifestation of the impunity with which crime might be committed.It came, therefore, to this—that they had in Ireland to deal with a society which was purely agricultural, with a great epidemic of agrarian crime, and with a system of trial under which criminals were tried by juries composed almost entirely of persons who, as a rule, belonged to the same class as the criminal; and who, in many cases, entered the jury-box with the deliberate intention of disregarding the law. In view of such declarations and such cases, the Committee had to consider whether they could suggest any remedy for this deplorable state of things. They had, first, to deal with the manner in which the juries were composed. As to increasing the rating qualification of jurors, they thought that was not possible, because, while a large increase in the rating qualification would in a great number of districts get rid of the jury panel altogether, a slight increase of the qualification would certainly not lead them into the stratum of jurors whom they could depend upon as free from the influences to which he had referred. They considered, therefore, that if anything was to be done in the direction of improving the composition of the juries, it should be attempted rather by infusing into the panel some of that variety in which, as he had stated to their Lordships, it was at present so lamentably deficient. The Committee, with that object, made 436 certain recommendations. They recommended that the panel should be strengthened by adding to the qualifications now in force certain special qualifications by means of which persons who had not the necessary rating qualification, but who were otherwise fit for service on the jury, might be admitted. They also proposed a diminution in the number of exemptions; and in order to make sure that those jurors who belonged to a class superior to the rest should be represented, not only on the panel, but in the jury-box, they recommended that the fines now imposed for non-attendance should be enforced with more strictness than at present. They further suggested that upon every common jury there should be three jurors with the higher qualifications required for service on the special jury—an arrangement which, he believed, prevailed in Scotland, and which it was considered worked very well. They also proposed that persons on the common jury should be relieved of their duties as grand jurors in connection with the criminal business of the Assizes; and, finally, they suggested that the right of challenging the jury panel in cases of felony should be reduced from 20 to six. They believed that these modifications in the law recommended by the Committee would tend to improve the composition of the juries.Although the Committee thought that these changes would be useful, and would do something towards removing the imperfections which experience had disclosed in the existing law, they could not shut their eyes to the fact that these changes alone would be absolutely insufficient to improve the state of things which was found to be in existence. They believed that if any improvement was to take place they would have to go further. They had, in the first place, to consider the fact that during a time when agitation was prevalent in Ireland, a great number of offences were being continually committed—not, perhaps, in themselves of a very serious nature, but very serious when they were considered as being the manifestations of deeply-seated social disorganization. Such offences as those of intimidation, assault, interference with persons engaged in carrying out the law, and so forth, were the kind of offences from which the agitation in Ireland derived its real strength, 437 and it was clear that something must be done to deal effectually with them. And what was the most effective way of dealing with them? Their Lordships would agree with him that such offences should be dealt with, not necessarily with inordinate severity, but with promptitude and a certainty of justice. What was the case now? He was afraid that an exactly opposite state of things prevailed in Ireland; so that, although the law might award a severe punishment, it was either very tardily inflicted, or not inflicted at all, to the complete frustration of the ends of justice. Either through unwillingness to incur the odium of deciding the cases, or through such cases not being actually within their jurisdiction, or because they believed that the penalty they could impose was insufficient, the magistrates nearly always sent these cases for trial. The person suspected probably would be let out on bail. Weeks and months passed by, and in the end, when the accused was tried before a jury, he was, very likely, acquitted, amidst the applause of those assembled in Court. To remedy such a state of things, the Committee suggested that the summary powers of the magistrates should be revised, and made sufficiently extensive to enable them to deal with such offences as cases of rioting, aggravated assault, cases of forcible possession where the question of right had already been decided by a Court of Law, assaults on process servers and all agents of the law, posting or sending threatening notices, intimidation, and other offences of a like character. They also recommended that the magistrates should be bound to deal with such cases, and should not send them for trial by jury, unless by special direction of the Public Prosecutor. They further suggested that when such cases were dealt with by the local magistrates, they should be assisted by the resident, and that in this view additional resident magistrates might be appointed—a recommendation which had been partly carried out by the recent appointment of special stipendiary magistrates.
Such an enlargement of the jurisdiction of magistrates could only be applicable to comparatively insignificant offences, and they had to consider how offences of graver character should be dealt with. As to these, it was suggested that, as miscarriages of 438 justice were often owing to local and social influences, these influences might be avoided by transferring the trial, in all cases where such influences might be expected to operate, to places beyond the reach of such influences. That was a suggestion which had much to recommend it; the more so because such a course had already been resorted to under the existing law, and with good results. Where proof was forthcoming that there was no prospect of a fair trial in the place where it would naturally proceed, an application might already be made to the Court of Queen's Bench for permission to change the venue. The success which had lately attended the Winter Assizes, at which offences were tried away from the local venue, offered further encouragement in this direction; and the Committee were of opinion that every facility should be given for such changes of venue wherever the circumstances called for it. There were, however, obvious limits to the extent to which such an expedient could be resorted to. The removal of a trial from one part to another of a district suffering from the effects of the agitation would be useless, while its removal to an entirely different district, such as from Cork to Belfast, might not be fair to the prisoner. The consideration of these facts forced upon them the conclusion that, if anything was to be done to stem the tide of agitation in Ireland, and to avoid the recurrence of abuses which had come to their knowledge, it would be necessary to take steps of a considerably more stringent and far-reaching character; and, after carefully weighing all the circumstances, the majority of the Committee had agreed to insert the following paragraphs in the Report:—
The evidence which we have taken has forced us to the conclusion that as long as a large portion of Ireland continues under the influence of the present agitation, the adoption of the steps we have suggested will probably not prove sufficient to insure the punishment of crime, and to restore public confidence in the minds of the law-abiding portion of the population.The evidence shows that the area in which trial by jury has broken down is not a small one, and that the social disorder, of which this is one of the numerous manifestations, is so deeply seated, that its rapid disappearance cannot be confidently looked for; nothing will so much retard its appearance as the prolongation of a state of things under which crime can be committed with impunity, and justice publicly outraged.439Under the circumstances it will be for Her Majesty's Government to determine whether or not trial by jury should for a limited time, within a limited area, and with regard to circumstances of a well-defined character, be replaced by some form of trial less liable to abuse.Up to that point the Committee had been absolutely unanimous in all their proceedings; but there, he was sorry to say, the noble Lords the Lord Privy Seal (Lord Carlingford) and the Lord President of the Council (Earl Spencer), felt they could no longer join the other Members of the Committee. But the difference between them, he was glad to say, was very slight. The Lord Privy Seal proposed to substitute for the paragraphs which he had just read the following words:—But we feel bound to add that the evidence which we have taken has forced upon us the conclusion that such reforms will be of little use so long as the present agrarian agitation and organization remain dominant within a large part of Ireland. Should this state of things unhappily continue, the responsibility will rest with the Government to provide the necessary means for the due maintenance of the law and the punishment of offenders.This paragraph, he submitted to their Lordships, contained two statements, the first of which was that the reforms of the Committee, as already recommended, would be useless as long as the present agrarian agitation continued. These words were absolutely identical in meaning with the recommendation which he had mentioned, and which the majority of the Committee approved. The second statement respecting the provision by the Government of the necessary means for the due maintenance of the law and the punishment of the offenders was an admirable and almost oracular statement, sounding, perhaps, a little too like an official statement of official infallibility. He did not think anyone could conceive a Government that was not responsible for providing necessary means for the due maintenance of the law and the punishment of offenders. Yet he could not regard those words as a mere truism written without any idea of their meaning, or as a threat uttered without any definite conception of the manner in which the words were to be made good. What were the circumstances under which these words were written? The Committee recommended certain alterations in the law; so did the noble Lord the Lord Privy Seal. The Committee 440 said that if the agitation continued those alterations of the law would not be sufficient. The noble Lord the Lord Privy Seal agreed to that, and added that, these alterations not being sufficient, the Government would have to do something more in order to provide the necessary means for the due maintenance of the law. The noble Lord the Lord Privy Seal never told them, while deliberating with the Committee and taking evidence, of any other means of enforcing the law, and providing for the punishment of offenders other than those which were mentioned in the Report. He could not help believing that, after all, the noble Lord, in his heart, entirely agreed with the recommendation of the majority of the Committee; but that, from a regard for the susceptibilities of his countrymen, he did not like to call things by their proper names, or put upon paper any passage in which the suspension of trial by jury was clearly pointed at.He could assure the House that those who formed the majority of the Committee had made their recommendations with a very full sense of the responsibility which devolved upon them; but they could not close their eyes to the facts—the alarming facts—which the evidence brought within their knowledge. Behind them they had the humiliating experience of the past. Before them were the terrible possibilities of the coming winter. They felt that they had no choice but to state that, in their opinion, if no signs of improvement manifested themselves, it would be the duty of the Government of the country to consider whether, within a limited district and for a certain time, trial by jury should not be superseded. Their Lordships would observe that, although the majority of the Committee expressed its belief that the time might come for such a change, they did not actually say that it had come already. At the time when the Report was written a great measure of remedial legislation was passing through Parliament, and very sanguine hopes were entertained of the effects which it was likely to produce. He would not enter into that question then; but, at any rate, it was possible to believe that its passing might have had an effect in improving the state of Ireland, and the Committee felt that it would only be reasonable to allow time for the trial of that great experiment before any 441 change so stringent as that which they conditionally recommended should be resorted to. What he thought they had to ask Her Majesty's Government was, whether the success of that measure, and the success of their policy in Ireland, had been such as to render it possible to govern that country without some further steps for securing the enforcement of the law? What had been their experience since the Report of the Committee was written? They had had, in the first place, the Winter Assizes. He knew that the conduct of the juries during the Winter Assizes was a subject of a great deal of congratulation; and, no doubt, that conduct did present a marked contrast with the conduct of other juries; but their Lordships must remember that the experience of the Winter Assizes was absolutely worthless as any indication of what the conduct of the juries in ordinary Assizes was likely to be. In the Winter Assizes the juries were composed, to a great extent, not of persons of the farming class, but of trades people and shopkeepers. In fact, the Chief Secretary to the Lord Lieutenant had stated publicly that the Cork juries were doing their duty because the shopkeepers were beginning to find out that non-payment of rent meant non-payment of debts. That was the real explanation of the improved conduct of the juries at the Winter Assizes. Then they had the Spring Assizes. Of course, there were no statistics yet open to the public with regard to them; but he had given attention to the reports of what took place in the different districts, and he observed that there had been in most of the Circuits a very large increase of crime, notably of agrarian crimes, and that a very few persons had been made amenable—while of those who had been made amenable, a mere handful, whom they count over on their fingers, were convicted. He saw that the acquittals were specially numerous in agrarian cases, and that when there was an acquittal, although the evidence might be of the strongest possible character, the result was generally accompanied with those scandalous scenes, the verdict of acquittal, or the disagreement of the jury, being again and again received with the tumultuous applause of crowded Courts. In one or two cases, moreover, he had observed that the Judges had rebuked the jurors for the manner 442 in which they performed their duties. All these were ominous and disquieting facts, and he would be glad if any Member of the Government could re-assure the House with regard to them. If the Government could not re-assure them, if the tide of disaffection was not receding, if the juries were still deliberately disregarding their oath, then their Lordships might depend upon it that they would have to make out a debtor and creditor account against trial by jury in Ireland; and if they found that its advantages were outweighed by the miscarriage of justice and by the outrages to common decency to which it had given rise, then they would have fearlessly to find some other means of trial to put in its place. Above all things, they should divest their minds of the superstition that to replace trial by jury by trial without jury was necessarily a great infringement of public liberty. It might well be asked what room there was for public liberty in Ireland in the present condition of that country? Public liberty was being crushed out of existence in Ireland between the repressive measures to which the Government had been driven to resort on the one hand, and the domestic tyranny of the Land League on the other. They had on the one side intimidation, terrorism, and outrages of every kind—"Boycotting," mutilation, panic, murder; they had on the other suppression of the freedom of public speech, the prohibition of free discussion, and the imprisonment without trial of large numbers of the Queen's subjects. Which of the two was the greatest interference with liberty—to keep a man for months together in prison without any trial at all, or to put him on his trial before a properly-constituted tribunal, even although that tribunal was not aided by a jury? It seemed to him that the moment was not one for squeamishness in regard to liberty in Ireland; and he was only afraid that, in this and in other matters, they might be found clinging to the mere semblance and shadow of liberty long after the substance of it had lost its place in their midst.
After all, was it quite clear that trial by jury was so essential in the interests of liberty and of the rights of individuals? Had their Lordships considered the enormous number of cases which were already in the United Kingdom disposed of by magistrates without 443 any juries at all? In England, speaking roughly, 517,000 cases were so disposed of by magistrates without a jury, against 14,000 sent for trial before a jury; in Ireland there were nearly 200,000 cases dealt with summarily by the magistrates, and only 1,600 cases sent for trial—that was to say that, taking the whole United Kingdom, out of every 46 cases, 45 were already tried without any jury at all. Then, again, in civil cases, they had but to consider the enormous amount of business transacted in the County Courts in the United Kingdom. There were about 750,000 cases tried in the County Courts, of which only about 1,000 were tried before a jury. He observed, further, that the Report of the Committee on the Law of Judicial Procedure recommended additional changes in the direction of superseding trial by jury in civil cases. He did not think it could be contended, in face of these facts, that trial by jury was really and absolutely essential to the protection of litigants or to the preservation of public rights. Trial by jury was a means to an end. The end was to secure public sympathy on the side of the law, and to have the law effectually enforced. If trial by jury failed to obtain those ends, they must provide some means which would do so. He had put this Notice on the Paper because he thought the evidence collected by their Lordships' Committee too important to be consigned to the limbo of forgotten Blue Books. He would not ask Ministers for a premature disclosure of the policy of Her Majesty's Government, for he knew the difference between the position of a private Member who asked a Question and a Member of the Government who had to answer it. Still, he felt that upon some of these points Ministers might vouchsafe the House a little information. The Committee had recommended, unconditionally and apart from the concluding portions of their Report, certain alterations in procedure intended to remedy grave defects which experience had disclosed in the working of the jury system in Ireland. He could not help thinking that the Government might tell their Lordships whether, upon the whole, they agreed in the recommendations of the Committee upon these points, and whether, when the state of Public Business permitted, they would consider the 444 propriety of taking some steps in order to give effect to those recommendations. As to the further and more serious recommendation of the Committee, the House would bear in mind that it was made conditionally. The suspension of trial by jury was advocated only in the event of the state of Ireland showing no improvement, and of a continuation of the scandals which he had described. They had, he thought, a right to ask Ministers whether those scandals still continued; whether it was still the case that owing to the conduct of the juries "crime can be committed with impunity, and justice publicly outraged;" if so, if there was no alteration in the state of things disclosed to the Committee in August last, they had no choice but to ask Her Majesty's Ministers what steps they proposed to take in order to make good those words of the noble Lord the Lord Privy Seal, in which he had solemnly pledged the Government to provide necessary means for the due maintenance of the law and the punishment of offenders? The noble Marquess concluded by asking the Question of which he had given Notice.
§ LORD CARLINGFORDsaid, he was not surprised that his noble Friend (the Marquess of Lansdowne) should have thought it well to make the able statement which he had made to the House with respect to the proceedings and the recommendations of the Committee of last Session upon the Irish Jury Laws. That was a Committee of great importance; and he (Lord Carlingford) might be permitted to say that the Report prepared by his noble Friend was as well-considered a Report as ever was adopted by a Committee of that importance dealing with so weighty a subject. That Report consisted of two parts. The larger part, upon which the Committee were happily unanimous, consisted of recommendations of various reforms in the system of Irish Jury Laws. The smaller and latter part of the Report, and one of the greatest and most critical importance, was of a very different nature. It did not recommend reform, but the suspension of trial by jury in Ireland. That recommendation was made in the most guarded and most careful terms, and evidently with the fullest conviction of the grave and serious character which it bore. It was not even a recommendation made positively 445 to the Government, or by way of direct advice to Parliament. It was made in terms which left it to the responsibility and discretion of the Government as to whether it should be adopted or not, and as to when it should be adopted. It did not attempt to recommend or suggest what mode of trial should be substituted for trial by jury. Of that recommendation, however guarded, however cautious it might be, the minority of the Committee, including his noble Friend the Lord President of the Council and himself, were not able to take the responsibility, or to concur in it. His noble Friend (the Marquess of Lansdowne) had been very critical as to the language of the Amendment which was moved by himself (Lord Carlingford), and which was concurred in by the minority of the Committee, and it was very possible that the mere words of the Amendment were not the best that could have been chosen. He did not deny that that might be so. But the noble Marquess said that the difference between the majority and the minority of the Committee appeared to be infinitesimally small. The difference was this—that the minority, including himself (Lord Carlingford), declined to concur in the advice and recommendation which his noble Friend desired to offer; while the majority concurred with him in giving that advice, and in making that recommendation. This, he thought, was a distinction and a difference which hardly could be described as infinitesimal. He did not complain in the least of the appeal that had just been made to the Government on the subject of the suspension of trial by jury in certain districts in Ireland; but he was bound to say that his attitude towards the recommendation must be the same that day as it was on the day when the Report of the Committee was adopted. He was not able, on the part of the Government, to take a different attitude at the present moment. He was not able to do what his noble Friend invited him to do, for it was impossible for him, on the part of the Government, to announce further legislation in connection with the subject at that critical period in Ireland. The Government had already, by the aid of Parliament, furnished its Representatives in Ireland with laws of the most vigorous and exceptional kind. They had been, and 446 were still using, the powers so given to them, and all other powers, to the very utmost of their ability; and, as he had already said, it was not his duty now to announce to their Lordships any further legislation upon the subject. Their Lordships, therefore, would probably not blame Her Majesty's Government if he (Lord Carlingford), on their part, declined to discuss with his noble Friend under these circumstances, and at that time, the question of the suspension of the Jury Laws in Ireland. He would only make one observation connected with the part of his noble Friend's speech that related to the experience which they had had of trial by juries in Ireland since the sitting of this Committee, and since the adoption of its Report. He referred to the experience gained at the Winter and Spring Assizes. He thought his noble Friend had underrated the importance of the experience gained at the Winter Assizes. As far as his own experience went of the Winter and Spring Assizes in Ireland, it appeared to him that the remarkable success of a good many trials in strictly agrarian cases in the South of Ireland showed more strongly than ever the important effect of removing the trial of agrarian offences from the district in which they had been perpetrated, and the associations of the place where they were committed. He could not help thinking that if these facts had been then before them the Report upon that point would have been considerably stronger than it was at present. As to the Spring Assizes, he was obliged to agree with his noble Friend that the results had been of a different kind. The number of cases tried had not been large; but in many of them undoubtedly the results had been most unfortunate, and there was every reason to believe that during these Assizes there had been serious and lamentable failures of justice, though the contrary had been the ease in some few remarkable exceptions. He wished, at the same time, to add that the main and salient fact in connection with these Assizes was undoubtedly the extremely small number of cases which had been brought to trial. That was the first fact that struck one in examining the circumstances—namely, the lamentable absence of evidence, and the deplorable unwillingness of the sufferers themselves to prosecute, 447 Passing now from the question of the I suspension of trial by jury in Ireland to the valuable suggestions made in the Report for the amendment of the Irish Jury Laws, and for strengthening the weaker points of the system which had been so carefully investigated by the Committee of their Lordships' House, he wished to say that with respect to that part of the Report he was of the same opinion now as he was at the time. The Government felt fully both the importance of the subject itself and of the recommendations of the Committee; and it was their belief that those recommendations would form important materials for the improvement of the Irish jury system when time and opportunity could be found for dealing with the subject. With that qualification he could assure his noble Friend that the Government acknowledged the weakness and imperfections, in some important respects, of the Irish jury system; but he must say that the time and opportunity had not yet arrived when, with the assistance of the Report of their Lordships' Committee, those defects might be removed, and those weaknesses might be cured.
THE DUKE OF ARGYLLMy Lords, I do not think many of us will be disposed to find any very serious fault with the answer which has been given by my noble Friend the Lord Privy Seal (Lord Carlingford) to the very able and powerful statement of the noble Marquess (the Marquess of Lansdowne). I do not think we shall be disposed to find fault, when we consider the position of a Minister of the Crown, that the Lord Privy Seal is not able to announce any measures on behalf of the Government—the Government, perhaps, not having made up their minds, or, if they have, considering it inexpedient at present to disclose them. But, having said so much, I feel that thanks are due to the noble Marquess for having brought the subject forward; and I should deem it almost a neglect of my duty if I failed to express the obligations we are under to my noble Friend, on behalf of this House, and on behalf of this country, and, I will add, on behalf of the people of Ireland, for the dignified, thoughtful, and temperate statement which he has made. I should like, also, to say a few words with regard to the alleged failure of the measures of coercion which last year were taken by the present Government. It is com- 448 monly said that these measures of coercion have wholly failed. I cannot see the justice of that observation. They certainly have not succeeded in preventing terrible outrage and crime in Ireland, or the continuance of crime in Ireland; but those who say that these measures have failed forget that but for these measures crime might have been ten-fold more rampant than it is at present. They have failed in this sense, certainly—that they have not produced a complete reform; but it does not follow that they have failed in diminishing crime. I must point out, however, what is the real character of these measures of coercion to which the Government and Parliament have had recourse. The noble Marquess asks us to come to the conclusion that trial by jury has failed in Ireland. Is this a very terrible thing, when the Government has come to the conclusion long ago that it was necessary to give them arbitrary powers to arrest and imprison men without any trial whatever? It is a far more arbitrary system of coercion which you have had recourse to than that which is pointed to by my noble Friend. It is a course of coercion of which the country has reason to be ashamed, in this sense, that the Government of Ireland should be compelled to resort to such measures. Well, now, it is quite evident that the measures of coercion to which we had recourse last year are in some danger of producing a re-action in the public mind. It is inevitable, in the circumstances of the case, that when, under these powers which Parliament has committed to you—I am not arguing that Parliament was wrong—I believe it was a necessity—but the consequence of these powers, to a very large extent, has been that men's minds have become shocked with the fact that 500, 600, or 700 persons are or have been in prison in Ireland without having had any trial whatever. It is inevitable that there should be a re-action in the public mind. But one cannot help looking forward with some alarm to the Parliamentary condition of things. These powers of coercion which the Government possess are limited in point of time, and, therefore, we shall have to consider what is to be done. The Government will very soon have to make up its mind whether they will ask Parliament to renew them. I ask, is it possible, in the face of the facts brought before us to- 449 night by the noble Marquess, to deny that strong powers are necessary in the hands of the Government in regard to agrarian crime in Ireland? Then you must make your choice between continuing a purely arbitrary system of arrest without any trial at all, or so strengthening the ordinary law that through the law you can strike the wrongdoer. You are holding in prison some 600 or 700 men whom you suspect of having incited to crime. That is a very strong power; it is a power which you have been compelled to use to a large extent, and no one has confessed more frankly than the Chief Secretary for Ireland that he has been obliged to exert those powers to a much larger extent than he expected when Parliament intrusted them to him. It may be that those powers will have to be renewed; but I, for one, frankly state that I would infinitely prefer to see a strengthening of the ordinary law in the direction pointed out by my noble Friend than any indefinite prolongation of these arbitrary powers. I agree very much with all the arguments and statements which have been made by the noble Marquess. I think there is an undue superstition with regard to trial by jury. It has been a great bulwark, no doubt, of political freedom, and I believe and trust it will continue to be so; but there are conditions of society—and really the condition of Ireland is one—in which trial by jury is practically useless for the detection and punishment of crime. You have passed a great remedial measure, and you have given a great deal of the property of Ireland over to the farmers, and you ought now to insist upon it, by a judicious strengthening of the ordinary law, that crime shall be repressed; and I, for one, would recommend the remedy suggested by my noble Friend, that in agrarian cases, well-defined, and in districts well-defined also, those offences should be tried before a Commission of Judges. I believe that is the only way in which you can repress crime. The state of things in Ireland is really frightful. My noble Friend, since he sat down, has put this telegram into my hands. In some of the morning papers your Lordships may have seen that there has been another terrible agrarian murder in Ireland. This information has been forwarded to him. I do not give the names of the persons from 450 whom it comes; but it bears so directly on the condition of things we are now discussing, that I will read it to the House—
You may state that Mr. Arthur Herbert was shot dead yesterday, because he told the Judge at the last Assizes that a fellow-juror had stated he would hold out for a week before he would find a verdict of guilty.Here is a case where there is every reason to believe that this murder has been committed because one man insisted on doing his duty as juror in giving information to the Judge in regard to the conduct of his fellows. I do not wish to make a speech, following up this matter, further than to say that when such is the state of Ireland, none of us would wish to say anything which would embarrass the Government. I wish to say everything that I can to help the Government in expressing the opinion of at least many who stand around, and on this occasion I must say that I heartily concur in the speech of my noble Friend.
LORD INCHIQUINsaid, that, in his opinion, trial by jury, as it now existed in Ireland, was in no sense efficacious. The liberties of the people of Ireland would be very much better preserved than they were at present if some temporary change were to be made in the direction which the Committee of last year pointed out. The evidence which came before that Committee was so convincing, backed up as it was by the opinion of the most eminent Judges in Ireland, that they reluctantly came to the conclusion that if things remained in the same state as they were when the Report was made, they had no other alternative than to make the recommendations in question to the House. He believed if such changes were carried out at the present time, they would shortly find that the state of affairs in Ireland would rapidly improve. The tenant farmers, the labourers—in fact, every class in Ireland—were anxious that the present terrorism should cease; and he would ask their Lordships and the Government to say how such a state of things could be put an end to. As long as crime was committed with perfect impunity, and as long as people were compelled, to obey the unwritten law—which their Lordships knew was really the present law of Ireland—of course he could not expect that Her Majesty's Government should be prepared to 451 make such changes prematurely; but he would ask them to consider them. There were at present 600 or 700 men in gaols in Ireland without trial. If many of those imprisoned were not guilty of murder, they were guilty of inciting to murder; and if a Commission of Judges were sent down to districts such as that with which he was particularly acquainted to try those men who had been taken up by twenties, thirties, and fifties, it would be much more satisfactory to everyone concerned, and would soon put an end to the lawlessness which was kept up by those wretched secret societies which existed in Ireland. It would be a good thing for Ireland, and have a much better effect than imprisonment without trial. He therefore trusted the Government would consider whether it was not much better to have a ready and prompt trial by a Commission of Judges, or even the establishment of martial law, than to allow the country to drift into a still more dangerous state than it was at present. No one was better pleased than he was by the success of the "Winter Assizes; but he was much afraid that its effect would be to prop up the Irish jury system for a while longer. He could not agree with the noble Lord the Lord Privy Seal that the difficulties which they now experienced would be put an end to by a change of venue, and the opinion of all the Judges was to that effect.
THE EARL OF DUNRAVENsaid, he was delighted to hear the noble Duke (the Duke of Argyll), with his usual eloquence, advocate what he (the Earl of Dunraven) had himself long looked upon as the only common-sense view of that matter, and declare that, in view of the valuable evidence and the most able Report of the Committee which had inquired into the Irish Jury system, and taking into consideration what they knew to be the state of Ireland, the only thing that could under the circumstances be done, with any practical effect, would be to substitute some other form of trial, instead of trial by jury, for dealing with cases of an agrarian nature. The Committee said that justice had almost completely failed in Ireland owing to various reasons. They reported that in many cases juries were subject to such intimidation that they dared not convict; that in others they were so com- 452 pletely in sympathy with the accused that no intimidation was necessary; and also that many of the acts which were considered crimes by us, and which were rightly considered crimes, were not considered crimes at all by the jurors who had to try them. As regarded the last, if a crime was not regarded as a crime by jurors, trial by jury became a meaningless farce; while the only practical way in which jurors who were intimidated could be saved from that intimidation was by relieving them from their duties; because, whatever alteration of the law was made, and however much they hoped that the state of Ireland would improve, no reasonable man could be sanguine enough to expect that intimidation would become impossible in Ireland in a short time. Even if the rating qualification for jurors could be made much higher—and the Report showed that that was impracticable—the effect would be bad, because it would be indirectly superseding trial by jury whilst retaining the form, and it would tend very much to increase that bitterness between class and class which already prevailed too much in Ireland. Various alterations were suggested by the Committee, which would no doubt be beneficial. But to suppose that those alterations could possibly work such a change in the condition of the country and in the temper of the people, and in the view they took of crime of an agrarian nature, was to ignore the whole modern history of Ireland. The case of the "suspects" in prison had been commented upon, and he would wish to add a word or two on that point. He felt very deeply how discreditable it was to England, and especially, as it seemed to him, to the Liberal Party, that between 600 and 700 men should now be in prison in Ireland without any trial whatever, and without either themselves, their friends, or the public having any opportunity of knowing the particulars of the crimes of which they were accused, or the evidence which could be brought against them. He did not mean to say that strong powers of the kind taken by the Government were not necessary; but he had thought from the first that there were two alternatives open to the Government at that time. They could either have asked Parliament to give them power of trying prisoners for 453 certain offences by some other mode than by jury, or they could have obtained strong and exceptionally arbitrary powers. The Government adopted the latter course and obtained the powers they required, though it was doubtful whether Parliament would have granted them if they had foreseen how they would be used; but he believed that the former course would have been very more efficacious, and it would have saved this country from that which had happened—namely, that, owing to the way in which they had exercised their powers, the Liberal Party had been utterly discredited in Ireland. Trial by jury in Ireland in certain cases had long ago been shown to be useless. How many times had it not been found necessary to suspend the Habeas Corpus Act in Ireland; and would it be contended that Ireland, under those circumstances, was in the enjoyment of those liberties which were looked to be secured by trial by jury? It would be absurd. Trial by jury, without the Habeas Corpus Act, became a mere name and nothing more. Men's liberties would be much better guarded if there were some kind of trial instituted whereby justice might be meted out to those offenders who now got off scot free, than when men could be imprisoned without any form of trial whatever, and when the Lord Lieutenant or the Chief Secretary for Ireland could incarcerate any man without he himself or his friends knowing what was the charge that could be brought against him, or what was the nature of the evidence to be adduced. Trial by a Commission of Judges would be infinitely preferable to a system under which men were punished without any trial at all. At any rate, the whole circumstances of the case would be known to the accused and to the public. He thought the question of the "suspects" was a very serious one. To some of the "suspects" imprisonment, as now carried out, was scarcely any punishment at all; while to others, owing to their circumstances in life or the effect it had on their business, the deprivation of personal liberty was a very great punishment indeed. So far as he recollected, the object of the Coercion Act was that persons who were reasonably suspected, might be held in gaol in order that they should not incite the people to commit certain crimes; but he saw 454 that the Chief Secretary for Ireland the other day said in a speech which he made in County Clare that the "suspects" would not be released until the people of Ireland behaved themselves better. That appeared to him to be quite another matter. He did not know whether it was that, having reverted somewhat to mediæval ideas in our system of dealing with land tenure, it was also thought right to revert to mediæval notions in other matters, and to take hostages for the good behaviour of people. According, however, to the Chief Secretary for Ireland, those 600 or 700 men were to be held in prison until their countrymen learned to behave themselves more decently. He agreed with the noble Duke that strengthening the present law would, besides being more Constitutional, be much more efficacious than that system of arbitrary arrest. There was a difficulty in dealing with the "suspects;" but there would not have been such a difficulty if Parliament had boldly grasped the question, and endeavoured to come to a conclusion at first. If England was to continue to govern Ireland, and if remedial measures and measures such as the Land Act were to have a fair trial, it was absolutely necessary that the weak should be protected against the strong, that those who were guilty of crime should suffer punishment, and that the law-abiding should not be afraid to range themselves on the side of law and order. From the experience of many years past, that appeared to be impossible in Ireland under trial by jury. It was the first duty of any Government to see that the weak were protected, that law-abiding citizens did not suffer for ranging themselves on the side of law and order, that the innocent should be unmolested and the guilty punished; and if that could not be done by trial by jury, it was the first duty of a Government to see that it was done by some other means.
§ EARL FORTESCUEsaid, that he agreed with almost every word uttered by the noble Earl (the Earl of Dunraven), and in none more emphatically than that it was the first duty of a Government to use all its power for the preservation of law and order, for the protection of the innocent and the punishment of the guilty. He did not, however, believe that the obviously desirable mea- 455 sure of superseding trial by jury in a considerable number of cases, and especially those of an agrarian character, would have rendered unnecessary the Coercion Act, or, as he preferred to call it, the Act for the Protection of Life and Property, which had been only too tardily introduced by the Government last Session. He had been one of those who had, early in the autumn of 1880, publicly called upon the Government to take efficient steps, or, if necessary, seek the additional powers requisite, for at once suppressing the lawlessness which had already commenced showing itself in agrarian outrages, before, encouraged by impunity, it became too widely and strongly developed to be put down. To him, as a consistent supporter of civil liberty all his life, it was most painful to see hundreds of men kept imprisoned for months by the Government without being brought to trial; and nothing would have reconciled him to this but his conviction, contrary to that of the President of the Board of Trade, that the maintenance of law and order was the first duty of Government. He did not doubt, however, that the number of "suspects" imprisoned would have been much diminished if Judges had been sent down to certain districts to try prisoners without the aid of juries, which he quite agreed involved far less sacrifice of liberty than shutting up men indefinitely without trying them. In this, as in other instances, the Government timidly sacrificed the object to the name, the substance to the shadow, of liberty. Dispensing with juries was not without precedent in Ireland. It had been adopted in 1822 or 1823, he believed, with great advantage. He did not doubt that, sooner or later, the Government would have to follow the recommendations of the Committee presided over by the noble Marquess who had rendered such valuable service in so ably bringing the question under their Lordship's notice to-day. But, as usual, the Government would have lost much precious time. The conduct of the Irish Executive put him in mind of an anecdote, which he read some years ago, of Troughton, the famous optician. It appears that he had promised George III. to make and send him a certain instrument by a certain day of a certain month; and he duly did so on that day of the following year, when the King said to him—" Very well 456 made, very well made, Troughton; and punctual to a day, too, punctual to a day; only mistaken the Anno Domini." So, he said, the Government had mistaken the Anno Domini. Even when they had done or said what was right in Ireland, they had always been at least a year, or six months, or six weeks too late in doing or saying it. The Chief Secretary had just made two energetic speeches, one in Ireland and one in "another place." But how doubly valuable they would have been in March last year! For more than a year process-servers had from time to time been ill-treated, wounded, and even murdered in different parts of Ireland. Yet it was only this year that Government, in concert with the Judges, adopted the obvious remedy of rendering service by post legally valid under certain circumstances. It was only yesterday that the Lord Privy Seal tardily acknowledged the valuable public service rendered by the Property Defence Association in doing what neither the Government nor mere private individuals would have been able to effect. He hoped the Government were at last beginning to be awakened to a perception of the right way of dealing with Irish lawlessness, and he felt confident that in that they would have the support of both political Parties in both Houses of Parliament. Only they must lose no time in taking effectual steps for the pacification of Ireland, for restoring it at least to the state in which it had been undeniably handed over to them by their Predecessors, orderly and tranquil, though, as Lord Beaconsfield had rightly warned them, profoundly disaffected.
LORD DENMANsaid, that their Lordships might remember that when a Select Committee was moved for on the Jury Laws of Ireland, he had requested that more attention might be given to the discussion of the subject at the Social Science meeting, which was to take place in October, in Dublin, than to any evidence brought to this country. Their Lordships might recollect that no change in the Jury Laws could be made, except by Act of Parliament; and if the intentions of the Government prematurely were known, all juries would be put on their mettle, and. no conviction could be obtained until the change was complete. He had heard the persuasive explanation of the whole state of the Jury Laws by the Right Hon. Dr. Ball, 457 at Dublin, and he believed that safe measures could be carried if his views on the subject were fully considered. If any sudden outbreak should prevail, martial law might be proclaimed; but no hasty declaration of intentions could do any good.