Lords Sitting of 20 February 1893

Preamble
Several Lords—Took the Oath.
SHERIFFS IN IRELAND.

  OBSERVATIONS.
  THE MARQUESS OF LONDONDERRYcalled attention to the refusal of the Executive in Ireland to grant police protection to Sheriffs at night in the execution of Judgments of the Superior Courts; and to the Judgment of the Queen's Bench Division holding such refusal illegal. He said: My Lords, I am somewhat uncertain as to the course I should pursue on the present occasion. When I placed on the Paper the notice which stands in my name I was unaware that a question was to be asked in another place on the subject. The answer of the Chief Secretary places me in a somewhat difficult position, for I gather from that answer that he is yet uncertain as to whether he will appeal to your Lordships to reverse the decisions of the Two Courts in Dublin to which he has already appealed. Under those circumnstances, I think I am justified in asking the noble and learned Lord on the Woolsack whether he is in a position to state to your Lordships the course which the Irish Executive propose to take? I need not say, in raising the question in your Lordships' House, that I think it is one of great importance not only to Ireland, but to England, and it is one which I think should be fully debated in this House.
  THE LORD CHANCELLOR (Lord HERSCITELL): My Lords, I am afraid I cannot make, in reply to the noble Marquess, any definite and conclusive statement as to what the Irish Courts will do in this matter. There is no doubt that the question is of very great importance. Two of the learned Judges who sat in the Court of Appeal expressed their regret that their view of the law prevented their dealing with the case on its merits, and they
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  decided it simply on the ground of jurisdiction. They stated that the matter was well deserving the consideration of the highest tribunal—namely, your Lordships' House. The Chief Secretary stated in the other House that the Government are desirous of taking the decision of your Lordships' House if it were possible on the question, and I gather that the question whether there should be an appeal from the decision of the Court of Appeal is still under consideration. It may be that the conclusion will be arrived at to appeal on the ground that the Court below had jurisdiction, and therefore that your Lordships' House has jurisdiction, and so to obtain the opinion of this House upon the substantive question; or it may be seen that there is some other way in which the opinion of the Court of Appeal and of this House may be taken by raising the question in such a way as that it could be made the subject of appeal, and that the appeal might not be precluded by reason of its being a criminal cause or matter. Of course, that would have to be considered as well as the question whether there should he an appeal from the decision, because the Court of Appeal might in the end be affirmed by your Lordships' House simply on the point of jurisdiction, and there would be an obvious advantage in adopting, if possible, some other mode of raising the question upon the merits. Of course, the noble Marquess will readily understand it is absolutely impossible for me to express any opinion upon the question of law, as the matter may probably come before your Lordships' House on appeal, and I should not think it right, as I might in that case have to hear arguments and to determine the question to express any opinion upon it now. That is the position in which I am placed, and I should think that noble and learned Lords in a similar position would feel the same difficulty.
  LORD ASHBOURNE: I feel it somewhat difficult to understand exactly the advice given by my noble and learned Friend on the Woolsack—
  THE LORD CHANCELLOR: The noble and learned Lord is under a misapprehension. I simply answered the question put to me. I did not intend to give any advice at all in the matter.
  LORD ASHBOURNE: Well, then, the opinion ought to be conveyed to your Lordships by my noble and learned Friend. It is obvious that this is a matter of the deepest importance, and it is not reasonable to tie up the discussion in either House of Parliament by a suggestion that there may or may not conceivably be an appeal under every sort of hypothetical circumstances that may exist. The position of the matter is this: A discussion was raised some months ago in the newspapers and otherwise in reference to the validity of the instructions given by the Irish Executive in regard to night seizures and the protection to be given to Sheriff's. Mr. Morley stated they were only with the object of making those which he found in existence when he came into Office more intelligible. The matter came to be considered legally in reference to the Sheriff's of Kerry, and to circumstances which led to his insisting upon the right of protection as well as to the action of the Government in regard to the whole matter, before the Court of Queen's Bench in Dublin. That Court, after an argument lasting several days, in which the Law Officers of the Crown were heard at length, after hearing all the grounds and reasons put forward on behalf of the Crown, unanimously came to the conclusion—the Lord Chief Justice, assisted by three other distinguished Judges of that Court—that the Sheriff was right in his contention, and that the suggested doubts on the part of the Executive were unfounded. That was the position upon the decision of the Queen's Bench Division. Mr. Morley stated in the other House that he had given instructions for an appeal from any adverse decision of the Queen's Bench Division; and as soon as the decision was annouced an appeal was taken to the Court of Appeal in Dublin. The Court of Appeal in Dublin consisted of four distinguished Judges—the Master of the Rolls, the Lord Chief Baron, and Lord Justices Fitzgibbon and Barry. They did not go into the matters discussed by the Court of Queen's Bench, but took the view that it being a criminal matter no appeal lay; and, as I understand, all that Mr. Morley suggested in the answer which was given on Friday last and reported in Saturday's papers, came to this: that he would consider
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  whether he could test the validity of that decision of the Court of Appeal—that is, whether au appeal lay or not by taking it farther to your Lordships' House; or whether, he went on to say, he would present the matter for the consideration of Parliament by Bill. The point is a narrow one, and it must have been considered definitely and conclusively by the Law Officers from time to time since this controversy arose. It s a question which is familiar to all lawyers; there is nothing new or strange about it, and I think we are entitled to know whether the Law Officers have under their hands suggested that there is any ground for questioning in your Lordships' House the decision of the Court of Appeal. My noble and learned Friend has intimated that there may be some other process of law started, and that after it has gone through various phases in the Irish Courts that in some inconceivable and hypothetical manner this new and unnamed process may ultimately find its way into your Lordships' House. But your Lordships will agree that it is not a satisfactory way of dealing with the matter, tieing it up in this way from definite decision and debate. It is quite obvious that the answer of my noble and learned Friend not giving the House the benefit of his great and authoritative legal opinion is hardly as satisfactory as it otherwise might have been, and, therefore, I hope we shall be told by some Member of the Government whether as a fact their Law Officers in Ireland have been in a position to give any opinion as to casting a sufficient doubt upon the decision of the Court of Appeal to justify an appeal to your Lordships' House. That is a matter of considerable importance. I think we are also entitled to view the matter in this alternative which Mr. Morley himself put the other day, and to ask whether he has made up his mind, in view of the advice which he has no doubt got from his Law Officers about presenting the matter to Parliament and asking Parliament to review the matter, and if necessary to keep things right, to amend the law. I do not think it is reasonable indefinitely to postpone Debate in your Lordships' House on this subject, and I think we are entitled to some expression of opinion as to the exact position and circumstances in which the Government stand at present.
  THE LORD CHANCELLOR: My Lords, I should like to say a word in explanation, because my noble and learned Friend seems to have misunderstood, and he has misrepresented, of course unintentionally, the exact position of this matter. I answered the question which the noble Marquess put to me; I did not invite or deprecate discussion upon it. It is entirely for the noble Marquess or the noble and learned Lord to determine whether they think discussion at this moment either desirable or expedient. If they think so, I have no desire to stop it. I merely answered the noble Marquess's question as to how, in my opinion, the matter stands; and as the noble and learned Lord says it is time we had made up our minds what to do, I may remind him that the Judgment of the Court of Appeal was only given on the 16th, and we are only to-day at the 20th February, and, therefore, there has not been a very long space of time for determining the course to be taken.
  THE MARQUESS OF LONDONDERRY: My Lords, after the remarks of the noble and learned Lord on the Woolsack, I think it is evident that the Chief Secretary has not yet made up his mind as to whether he will bring this case before your Lordships' House, and as it is, therefore, not sub judice, it is impossible to see why Members of this House are not at perfect liberty to discuss it. I venture to do so, because I consider it a matter of so much importance that I think its details should be thoroughly understood by the people of England at large, and that they should be allowed to form their own opinion as to whether the conduct of the Chief Secretary merits their unbounded approval or not. The position of this matter at the present moment is unparalleled in the annals of any country or Government. It is the first time we have seen a serious breach of the law perpetrated by a Cabinet Minister responsible for the government of the country, and that Cabinet Minister no other than the Chief Secretary of the Lord Lieutenant of Ireland. Some Members of your Lordships' House may consider this a somewhat bold assertion; but I am confident when I state the course pursued by the right hon. Gentleman the Chief Secretary for Ireland, it
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  will be admitted I have not overstated the case. It is a very simple one. A farmer named Kissane borrowed a sum of money from the Local Government Board in Ireland for the purpose of improving his farm; he failed to pay the interest on the money he had borrowed, and, consequently, the Attorney General for Ireland, in the course of his duty, instituted proceedings. Judgment was issued from the Superior Courts, and a writ of seizure was directed to the Sheriff to levy the amount due. Now, many Members of your Lordships' House, with all deference to them, had no idea of the difficulties which surround a Sheriff in pursuing his duty of levying upon farms in some parts of the South-West of Ireland, and especially in Kerry. So well has the system of what I may call silent resistance to the Sheriffs in carrying out their duties been organised by the National League in that part of the country that when the bailiffs appear for the purpose of levying, horns are blown by scouts placed on the hill-tops to give warning, and the cattle are driven from the farm on which they are to be levied on to other farms where they are mixed with other cattle, and it is impossible to identify and seize them. That, it was stated by the under-Sheriff on affidavit, happened in the present case. His statement was that his bailiff, James Brown, attended on the defendant's lands to execute the writ on Wednesday, December 7, 1892; that he found not goods on the land, but saw fresh signs of cattle, showing that they had been driven off on the approach of the bailiff's party. In order to prevent the writ of the Superior Courts from becoming absolutely abortive, the Sheriff considered it his duty to endeavour to levy by night. Knowing well that there were certain dangers and difficulties likely to beset him, the Sheriff appealed to the County Inspector to furnish him with sufficient police to protect the lives of the bailiffs in the discharge of their duty. The County Inspector, acting under the orders of Dublin Castle, refused the protection asked for. I say Dublin Castle advisedly, for I find that a Circular was issued from Dublin Castle which stated that the Government (which meant the Chief Secretary), as they were advised, were within their rights in declining to afford protection for the actual execution of

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  the writ at a time which they regarded as dangerous and unreasonable during the darkness of the night. I would ask the Government why, when it is notorious that in the South-West of Ireland levying by day is absolutely impossible on account of the reasons I have given, the Irish Executive should forbid levying by night, which could be made serviceable. I can only attribute it to one reason—the desire which has been manifested by the Chief Secretary in Ireland during the last six months to try and appease the law-breaking section of their followers. Proceedings were naturally instituted by the Sheriff against the County Inspector, with the result that that officer was mulcted in costs. In delivering Judgment the Lord Chief Justice of Ireland, supported by the other Judges who sat with him, stated that the Circular of December 7 was, in his opinion, unconstitutional and illegal, as in effect it denied to the Sheriff the right, power, and discretion which the law allowed him, and was calculated to frustrate the Judgment of the Court. The Judges did not think fit to visit with punishment the County Inspector; but if he had been adjudged the punishment which evidently was his due, the punishment should not have been borne by that officer. A subordinate has only to carry out the instructions of his superior; and if his superior gives him instructions which brings the Inspector under the notice of the Judges, that punishment should be visited on the shoulders of the man's superiors. The case, as the noble and learned Lord has stated, was carried to the Court of Appeal, which dismissed it. I would call attention to a letter which appeared in The Times from the late Solicitor General for Ireland with regard to the Judgment of the Lord Chief Baron. The Chief Secretary, referring in another place to the Judgment of the Lord Chief Baron, stated that the Judge, in giving Judgment, was reported to have said that he was personally desirous that some mode should he devised which would involve a decision in the House of Lords on the question. But the right hon. Gentleman left out the preceding words of the Lord Chief Baron, which I consider very important—
  "He did not desire," the Lord Chief Baron said, "to reflect in the slightest degree on the decision of any of the distinguished Judges
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  who tried the case in the Queen's Bench Division."
  Therefore, I maintain that those words of the Lord Chief Baron conclusively prove that he concurred with the Judgment of his colleagues. I do not intend to, trespass longer upon your Lordships' time in this matter. I have endeavoured in a fair and impartial manner to place it before you. I cannot help feeling that the maintenance of the supremacy of our Courts of Law should be placed before Party considerations, and, therefore, it is that I should not attempt to make political capital out of such a matter. I will only, in conclusion, ask Her Majesty's Government, Do they or do they not endorse the action of the Chief Secretary to the Lord Lieutenant of Ireland in his endeavour to weaken and paralyse the action of the Superior Courts in Dublin? That question, my Lords, I think I have a right to ask and to obtain a direct reply.
  *LORD ACTON: My Lords, the facts are these: Down to 1860 the constabulary were not authorised to give what I may call moonlight assistance. Then they were required to do so in cases of Judgments of the Superior Courts, and this came to be extended to decrees of the County Courts. That was the rule when the present Government came into Office. They found that the rule, so extended as to cover execution of decrees of the Inferior Courts, was illegal; that such execution by night was a misdemeanour, and that permanent injustice was being done. It became their duty at once to put an end to the injustice and to alter the offending regulation. But it would appear, as the noble Marquess has justly said, that in their manner of doing it they also fell into error. Theirs was an error against which new Governments cannot be too much on their guard, the amiable and seductive error of undue deference to their predecessors. It had been considered that the acts of Superior and Inferior Courts should be treated alike. In changing the practice they maintained the principle. Seeing that distress for rent cannot be made by night, that ejectments cannot be executed at night, that it is an act punishable by fine and imprisonment to carry away goods or cattle by night, under a decree of the

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  parity of reasoning, by analogy, and by the evident policy of the law, they resolved to put an end to protection in the night surprises; even for executions,ordered by the Superior Courts. They advised that the legality of this prohibition should be tested in a Court of Law where it was decided against them. They desired an authoritative opinion and have not been able to obtain it. They will at once amend their regulation in conformity with the law as now declared. Whether things can be allowed to rest there I do not know. The Judges of the Court of Appeal seemed to consider it extremely doubtful. One of them, the Lord Chief Baron, has spoken as follows:—
  "Having been himself the Judge who for the first time in the present half-century, had considered it necessary to call attention to the law which regulated the relations between the High Court and the Royal Irish Constabulary in reference to writs of execution, he did not desire to reflect in the slightest degree on the decision of any of the distinguished Judges who tried the case in the Queen's Bench Division when he said that personally he was desirous that some mode could be devised which would involve a decision of the House of Lords in the matter. He could not conceive any matter more worthy of the consideration of that high tribunal Judges, however, had to administer the law—they could not make it—and if according to law an appeal in the present case did not lie, they could not do more than decline to enter on its consideration, leaving the appellant to appeal to the House of Lords to review their decision, if an appeal lay from that decision, or to the Legislature, if they thought fit to alter the law."
  Lord Justice Barry, in the fullest report I have seen, said—
  "He regretted, in common with the other Members of the Court, that they were not in a position to give an authoritative, as it was called, opinion upon the question involved the decision of the Queen's Bench."
  The Government have not resolved upon further steps beyond what I have stated. This is the whole matter, reduced to its shortest expression so far as I can reduce it. Whether this basis of fact supports the fallacious superstructure which the noble Marquess has raised upon it your Lordships from the authentic information which I have put before you will be able to judge.
  THE MARQUESS OF SALISBURY: My Lords, it occurs to me that in making the statement which the noble Lord has just done he is not following on parallel lines with the information given in the House of Commons, at least as far
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  as my recollection goes. I understood that it had been clearly established in the House of Commons that there was no case in which a civil bill decree had been executed by the constabulary by distress during the night. What had been done was that the forces were assembled for that purpose in the night, and brought upon the ground—a proceeding which was absolutely necessary in order to avoid conspiracy for evading the law, which is common in these places—but that the actual seizure of the cattle had never taken place under the authority of the constabulary at night. The noble Lord passed over that question altogether, though in another place it was raised in considerable detail. Of course, if the noble Lord has further information which I have not got, I should be glad to receive it; but, failing any such further statement, I think I must demur to his explanation of the facts, and say that he has not drawn a sufficient distinction between what was done by the constabulary and what was imputed to them. I understand that what it was Mr. Morley in a first hasty speech imputed to them was that they had undoubtedly committed a breach of the law. What it turns out upon more careful examination that they had done was not to commit a breach of the law, but simply to take an additional precaution which the circumstances of the district demanded. He never produced any instance of actual illegality. With respect to the Main Question, I understand the noble Lord to give a pledge that the recent decision of the Court shall be the rule of the Government in any future action. With that assurance I have no cause to complain; but it seems to use a grievous thing for the subject, if the Government should have the power, by refusing the assistance of the Executive, to practically exercise a dispensing power, and thus make the rights of private persons of no avail. If such a thing were done and sustained it would be the worst possible augury for the future, and it would have the effect of opening an easy way of making all private rights worthless in Ireland. However, we now have the assurance of the noble Lord that, pending further action, at all events the Government have no intention of repeating what they had done and contravening the decision of the

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  Court. Whether they shall proceed for a further examination of the law by way of appeal to this House, or whether they shall apply to Parliament for a modification of the law, or whether they stall leave matters as the Court has now left them, are questions on which, as I understand, they have not as yet come to any determination.
  THE FIRST LORD OF THE ADMIRALTY (Earl SPENCER): My Lords, I do not wish to discuss the subject at any length after the explanation given by the noble and learned Lord on the Woolsack as to the possibility of the merits of this case coming before your House; but I do wish to disclaim the action which the noble Marquess has just attributed to Her Majesty's Government, who have had no intention whatever of using a dispensing power. They have done no such thing. What I understand to have taken place is that when the Chief Secretary looked into the matter he found that the regulations, in his belief and in the opinion of the Law Officers of the Crown, were not consistent with the law, and in order to make them consistent he caused the alterations referred to to be made. I am not aware whether in the past the constabulary have broken the law by affording protection to Sheriffs in seizing cattle at night, which would be strictly illegal; but it was found that the Regulations gave the constabulary permission to assist a Sheriff if the Sheriff asked them to do so in an emergency. That was clearly not legal, and therefore the refusal was not illegal; no one disputes that; it was because my right hon. Friend thought the details in reference to decrees of the Superior Courts must be the same in both cases, that he revised the regulations with the object of stopping what he thought to be improper and illegal action. The noble Marquess said he approached the subject in a perfectly impartial manner; but he soon threw his impartiality to the winds, because he used very strong language with regard to the Government, which I feel bound entirely to repudiate. The noble Marquess said this was an instance of the Government wishing to support the breakers of the law. On the part of the Government, I entirely repudiate such a doctrine; the Government do not wish in any way to break the law or to sup-
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  port those who break the law, and it was in order to maintain what he considered to be the law that the Chief Secretary made this regulation. The noble Marquess ought to be more careful in using language of this sort. So far from desiring to weaken the force of the law in Ireland, the Government desire to support the law and to make it respected. That is as much the basis of the policy of the Government as it is of the policy of noble Lords opposite.
  THE EARL OF CRANBROOK: My Lords, it is of no use arguing the question on mere terms. The noble Earl has spoken of dispensing power. There is a dispensation without power. The Chief Secretary in Ireland, as a matter of fact, dispensed with the law—ignorantly, I dare say—and it was found he was mistaken in the course he took, and it seems to me he ought immediately to retire from the position he has taken up. That is the course he should have adopted, and it is the only justifiable one.
  EARL SPENCER: He has.
  THE EARL OF CRANBROOK: He has and he has not. We heard at the beginning of this discussion that the question was still open for appeal or for discussion in Parliament. If at this moment the Chief Secretary has made up his mind and admits that in thus dispensing With the law in Kerry he was acting wrongfully, we have no more to say. He has Withdrawn front that position, and I trust the law will now be allowed to operate as it ought to do.
  THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR INDIA (The Earl of KIMBERLEY): My Lords, it is very convenient to say this is a question of words. The noble Lord has again adopted the noble Marquess's assertion with regard to dispensing power. There is nothing of the kind. A dispensing power means that, knowing what the law is, the Executive Government put the law aside. My right hon. Friend was advised wrongly with regard to the law, and he made a mistake. Undoubtedly the regulation which he issued was not in accordance with the law, but he did not arrogate to himself the right of dispensing with the law when it was ascertained. The noble Earl says there was nothing left for my right hon. Friend but to beat

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  a retreat. I quite agree—after it was discovered by the Judgment of the Queen's Bench that what my right hon. Friend had done was not in accordance with the law as decided by that Court at present — undoubtedly, as an officer of Her Majesty administering the law, he was bound to conform to the law as expounded by the Courts, and my noble Friends have been told that the regulation will he altered accordingly. But is that to be alleged as a reason for not appealing? Supposing the Court should itself say my right hon. Friend is entirely within his rights and suppose that Her Majesty's Government have a right if the means exist to try the question—
  THE EARL OF CRANBROOK: That is the very point.
  THE EARL OF KIMBERLEY: If there does lie any appeal, it seems to me the proper course for the Government to take is to ascertain distinctly what the law is. If there lies no appeal, and if this decision is not questioned, undoubtedly as long as it remains it must be conformed to by all who administer the Government. The noble Earl finds it convenient to seek to mystify the matter by talking of the dispensing power; but I maintain that is merely a convenient word to use in opposition which has not the slightest application to the case.

  LAW OF INHERITANCE AMENDMENT BILL [H.L.]
  A Bill to amend the law of inheritance to real property —Was presented by the Lord Chancellor; real 1a and to be printed. (No. 17.)
  EVIDENCE IN CRIMINAL CASES BILL [H.L.]
  A Bill to amend the law of evidence—Was presented by the Lord Chancellor; read.1a; and to be printed. (No. 18.)
  ARCHDEACONRY OF CORNWALL BILL [H.L.]
  A Bill to amend the law as to the endowment of the Archdeaconry of Cornwall—Was presented by the Earl of Mount Edgcumbe; read 1a; and to be printed. (No. 19.)

COMMITTEE OF SELECTION FOR THE STANDING COMMITTEE.
Report from, that the Committee have added the Lord Bishop of Durham and the Lord Bishop of Llandaff to the Standing Committee; read, and ordered to lie on the Table.
House adjourned at ten minutes past Five o'clock, till To-morrow, a quarter past Ten o'clock.