Sitting of 21 February 1844

MINUTES.
. BILLS. Public.—2° County Coroners.
Reported.—Horse Racing Penalties.
Private.—1°. Leeds and Selby Railway Purchase; Brandes Burton Inclosure; Epsom and South Western Railway; Market Harborough and Coventry Road; Hartlepool West Harbour; Norwich and Brandon Railway; Birkenhead Improvement.
PETITIONS PRESENTED. From Stillington, and 6 places, against Alteration of Corn-laws.—By Mr. Ord, from Newcastle, and Gateshead, respecting Window Tax on Licensed Victuallers.—From Newcastle Peace Society, against Increase in Military Establishments.—By Mr. Wynn, from Voelas, and places, against Union of Sees of St. Asaph and Bangor.—From Dumbarton, respecting Professors at Scotch Universities.

COUNTY CORONERS.
Mr. Pakingtonmoved the second reading of the County Coroners Bill.
Mr. Humeobjected to the increase which it proposed to make in the travelling allowances to Coroners. That the present rate of payment was considered sufficient, was proved by the immense competition that always took place for coronerships.
Mr. Pakingtonsaid, the main object of the bill was to improve the present very defective mode of election.
Mr. Williams, but it also proposed to increase the travelling allowance; and, therefore he should divide the House against it.
Mr. Craven Berkeleywould suggest that as the only clause referring to an increase of allowances was the 20th, which he proposed to move the omission of, it would be undesirable to divide the House against the whole Bill.
Lord J. Russellhoped, that to meet the convenience of the House, with reference to the important debate now in progress, the hon. Gentleman as well as other hon. Members who had Bills on the Paper, would consent to postpone them.
Mr. Pakingtonsaid, the noble Lord's object would be answered by reading the bill a second time pro forma, and taking

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the discussion on the details at a future stage.
Bill read a second time.

PENALTIES ON HORSE RACING.
On the Question that the Speaker do now leave the Chair, for the House to go into a Committee on the Horse Racing Penalties Bill,
Mr. Christierose to move as an amendment, "That it be an instruction to the Committee to extend the provisions of the Bill to all proceedings of common informers, under the authority of any penal statute." He said his object was to turn the Bill—which as it stood was a Bill to protect a few individuals, who, by violating a law, have incurred unreasonably high penalties, which were sued for by common informers, actuated, very probably, by malice, and a desire to put money into their pockets, but still the very motives on which the Legislature relied for the execution of the law that had been violated—into a Bill applying broadly and impartially the only principles which afforded a shadow of support, to all cases where the Legislature had apportioned penalties on the same plan, and provided the same means of recovering them, and trusted to the same motives, and to all cases, whether of rich or poor, where individuals were at the mercy of common informers, actuated by similar vexatious and mercenary motives. He could not recognise the distinction between high betting on horse racing and other species of gaming, nor any difference, in respect of operation on the morality of the poorer classes, between their smaller bets on horse races and boat races, and on the humbler games of chance, such as pitch and toss, for which they are every day liable to summary conviction by Justices. Nor could he see any difference between the unreasonableness in the penalties imposed by this statute on betting on horse racing, and the unreasonableness of the same penalties as regards gaming at cards or rouge et noir, so that public opinion would naturally lead to a general non-enforcement of the statute, but which, being unrepealed, might be unexpectedly revived any day to the ruin of some individual who had presumed upon the sleeping law. And there were many other penal statutes as absurd as these, to which the present Bill related; for instance, a statute against lotteries, passed in the
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reign of William and Mary, which subjected every one keeping a lottery, to a fine of 500 l., and every one drawing in a lottery to a fine of 20 l., at the suit of any common informer. And there was no difference between the vexatious and mercenary motives imputed to the parties bringing those actions, and the motives which might lead any common informer, during the time this Bill was in operation, to revive the old statute against lotteries, against a far greater number of persons, or the motives which were at the time alleged, and which there was just as muck reason to believe, actuated the person who brought the actions, in the case mentioned the other day by his hon. Friend the Member for Manchester, against Mr. Bond, and which almost ruined that individual. If the House passed this Bill on account of the characters and motives of the common informers who had brought the actions, they must, to be just, stop all proceedings of common informers in every case. An information might be brought for summary conviction by Justices, from a grudge against some poorer neighbour, as well as a qui tam action, because the informer had been turned out of the park at Good wood. There was no pretence for saying that there had been any doubts, as was said in the preamble of the Bill, as to horse racing being included within the statute of Anne. There had been a series of decisions, from an early time after the passing of the statute up to the latest time, in which judge followed judge in deciding that horse races, foot races, cock fights, and dog matches, some of which were specifically mentioned in the Act, were included in its operation. In giving judgment in the case of Applegarth v. Colley, in December 1842, Baron Rolfe said,—
"According to the construction which a great variety of cases have put on these acts, it must be taken, first, that horse racing is a game within the meaning of the statute of Charles II.; and, secondly, that the games contemplated in the statute of Anne, though not there enumerated, are the same as those referred to in the statute of Charles II."
There was a case even more recent than this—Bentinck v. Connop—in which judgment had been given by Lord Denman on the 10th or the present month, which was an action for the recovery of a portion of the Grand Duke Michael Stakes, run for at Newmarket, in the October

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meeting in 1842. The case turned on the Act of Charles II., and Lord Denman said, "that the object of the statute was to restrain gambling, and that betting on horse racing was included." The plaintiff in this case was the noble Lord the Member for Lynn; and as it had been stated for the noble Lord that he was ignorant of the law, though the noble Lord had not made that statement himself, he hoped the noble Lord would give some explanation on the point. It seemed strange that the noble Lord should be ignorant of the law which he was violating, when he was at the very time plaintiff in an action turning on one of these acts, and his attention must have been directed to the law, and if so to the recent case of Applegarth v. Colley, and the judgment of Baron Rolfe. If the House passed the Bill as it stood, they would encourage high betting and horse racing. The hon. and learned Member who had charge of the Bill (Mr. J. S. Wortley) had said the other night, that though there had been many high bets, there might be still very little risk; for persons "hedged," and that one of the persons sued for one of the largest amounts of penalties, had so hedged as to reduce his risk to 97 l. But this practice of hedging only went to increase betting, for every man who hedged must bet with two persons instead of one, so that this was a very extraordinary argument to urge on behalf of the persons interested in this Bill. The cases relied on as precedents to justify this piece of ex post facto legislation differed essentially from the present. The Act to protect Clergymen, in 1814, was to stop actions brought for penalties incurred, not by non-residence, but by neglecting to make the required returns of the grounds of exemption for non-residence, so that that was a mere matter of regulation, and did not involve a public principle. So with the Act of 1835 to protect newspaper proprietors from the consequences of a neglect of a provision for registry at the Stamp-office. But the present bill involved important moral considerations. He could mention a case which, if ever ex post facto legislation was called for, had most justly required it; he alluded to the wager of battle in the well-known case of Ashford v. Thornton, in 1817. There every principle of decency and humanity, as well as common sense, was outraged. The person accused of the murder demanded his
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right of wager of battle, under au obsolete and most barbarous law, and the Judges decided that he had the right. Only an accident prevented these two men from going out, under the sanction of the law, to embrue their hands in each other's blood. Ashford felt that he would have no chance against Thornton's superior strength, and declined to prosecute the appeal. But this was not to be foreseen; and while the matter was pending before the Judges, there was an attempt made at ex post facto legislation. The two persons were poor and humble; one was a village labourer and the other a bricklayer, and the Legislature held out no hand to save them from the sacrifice of their lives. He asked the House to extend this Bill so as to include all proceedings of common informers. When the hon. and learned Gentleman opposite (Mr. Wortley) attacked the characters and motives of these informers, he attacked the informer system; let no qui tam actions whatever be brought while this Bill was in operation; let all informations in the Superior Courts be brought by the Attorney General, and all informations before justices by some public officer, the clerk of the peace for the county, or town clerk of the borough. If this general principle were applied, he should be glad that the few individuals interested in this Bill were saved from absurdly high penalties, but otherwise, he repeated, the Legislature would be encouraging high betting on horse racing; and to a Bill proceeding on that principle he would offer every opposition in his power.
Mr. C. Berkeleysaid, if they legalised horse-racing without legalising the sports of the poorer classes, that would be class legislation. He proposed to the hon. mover that this Bill should extend to the sports and amusements of the poor, but the hon. Gentleman refused to comply with that suggestion. He would move a clause to that effect.
Mr. Hutt, who upon rising was greeted with loud cries of "Divide," said a great deal of pains had been taken by the hon. Member for Manchester (Mr. M. Gibson) to describe this Bill as a measure of class legislation—a proposition which would not have been brought forward and sanctioned by that House if it had not had some relation to persons of station within its walls. He repelled the insinuation in toto. Since the hon. Member for Manchester had been

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a Member of that House, no less than five or six Bills of a similar character had passed both Houses without any opposition. The hon. Member had scarcely taken his seat in that House when the Solicitor General, in 1825, brought in a Bill for the purpose of relieving certain printers who had unconsciously offended against the law, and who were sued for penalties of an enormous amount; and it was worthy of attention that one of the Gentlemen who showed himself anxious for the passing of the Bill was the hon. and gallant Member for Brighton (Captain Peellell), who was a strenuous opponent of the present Bill. That hill had relation entirely to persons in the humbler walks of life. In 1838, again, he (Mr. Hutt) himself introduced a Bill for the purpose of indemnifying a number of persons who had been engaged in the manufacture of turpentine, and who had unwittingly broken the law. That Bill was carried, and not a single voice was raised against it. If the hon. Member for Manchester were so shocked at ex post facto legislation why did he not oppose those measures.
Colonel Wyndhamsaid, the hon. and learned Member for Weymouth (Mr. Christie) and the hon. Member for Gateshead (Mr. Hutt) had both made long speeches, and had travelled over a good deal of ground which had already been fully discussed. What was the plain state of the case? This was a Bill of expediency to relieve certain individuals from certain penalties, which were no doubt, a matter of great importance to those Gentlemen whoever they were. A committee however was to be appointed. Let them inquire into the whole case and introduce to the House what seemed best to them; but don't let them interrupt the business of the House and of the country by these puerile and foolish motions.
Captain Pechellsaid, the House would be led away by those who represented the laws in question to be obsolete laws The plaintiffs in these actions had been denounced as scoundrels and blackguards, and all sorts of coarse language had been applied to them, and it was natural for them to turn round upon their assailants and say, "show that you do not let your lands for gambling booths." The noble Lord the Member for North Lancashire might be able to enlighten the House on this point, whether land was ever let for the construction of gambling booths.
Mr. Wakleyconsidered this Bill a credit to those who brought it forward, and he wished that all the measures of the Government party were equally creditable to them. The arguments of the hon. Member for Weymouth were wholly inapplicable to the present Bill. He should give his cordial and hearty support to the motion for going into committee, but that support should be still more cordial and hearty if the Bill had gone a great deal further. It seemed to be considered by some Gentlemen that there was no immorality in the clergy being non-resident. Now, the proceedings adopted by Mr. Wright in 1814 were popular, but here the object was to make money by those who themselves had cheated others. ["Cries of name, name."] The fact was perfectly notorious—he should not and he would not mention names—but it was notorious that these actions were brought from base, wicked, and malicious motives; and the Blouse ought to adopt a masculine spirit in resisting them. He wished to call the attention of the Secretary of State for the Home Department to some circumstances not unconnected with this subject, which took place in this town. A number of little boys were in the habit of amusing themselves by playing at pitch and toss—which some persons considered a highly immoral and injurious practice, while others regarded it as innocent and one to which no punishment ought to be attached, but he regretted to say that there were Magistrates in this town—Stipendiary Magistiates—who were in the habit of sending little boys to prison and to the treadmill for indulging in that practice. In the course of the present week, only two days ago, three boys were committed for having been guilty, as was stated in the warrants of the enormous crime of playing at "pitch and toss." He should be happy to relieve persons, whether in high or low stations, from vexatious penalties, and if this Bill was for the relief of the wealthy and independent, he was sure it was only necessary to remind the right hon. Secretary of State for the Home Department, of the practice of the Magistrates to which he had referred, and he hoped that if the Bill were passed into law care would be taken, at the same time, that all these innocent children should be liberated from their confinement.
Mr. Gibsonprotested against the practice of making vague and indefinite

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charges, and accusing persons of gross dishonesty and perfidy without any means of substantiating the charges. Now, as it was stated that the actions in question had been brought by parties who had themselves cheated others, he claimed the right of stating what those parties said on their own behalf, that the proceedings were instituted in consequence of their being themselves defrauded by the unfair practices of Gentlemen of the Turf in withdrawing their horses. He thought there was great force in what had been remarked by the hon. Member for Finsbury. It would have been better that this should have been a private Bill, and that it should have been left to a Committee up stairs to decide whether it were a case for indemnity or not. He agreed with the hon. Member for Gateshead, that there had been an understanding on a former evening that there was to be no further opposition to the Bill on the condition of the word "suspended" being substituted for "discontinued," in reference to the actions, and he should not feel that he was acting with good faith if he now offered any direct opposition to the Measure. He should therefore ask his hon. Friend not to press his amendment to a division. But he must beg to call the attention of the House to the peculiar position in which it stood on this subject in reference to the House of Lords. The House had agreed that it would not consent at once to discontinue the actions—to kill them, but to suspend them, and now a new Bill was sent down from the Lords to indemnify any witnesses who should have given evidence before the House of Lords, which provided that upon the production of a certificate from the Chairman of the Lords' Committee, not only should any pending action against such witnesses be staid, but the Court should award them costs. If the House agreed to this second Bill, it would be to allow the other House to obtain a decision of the House of Commons in an indirect manner, for it would then be only for a man to go before the Committee of the House of Lords and disclose bets, and he would thus not only put a stop to pending actions, but receive his costs. The Secretary for the Home Department had said, on a former occasion, that the informer was entitled to the whole of his expenses; that the payment of the mere costs out of pocket would be a hardship on account of the inducements
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which had been held out to him to incur the odium of bringing such actions; but this second Bill not only deprived the informer of costs, but enabled the defendants to receive costs from him.
Question that the words proposed to be left out stand part of the question, put and agreed to.
House in Committee.
On the first Clause being proposed,
Viscount Howickfully concurred in the object of relieving parties against whom these actions were brought, but he hoped it was not the intention of the House to encourage the continuance of the system of betting on horses. If the Bill did not go to repress that system, he was bound to say that he must require some change in it, because otherwise, betting clubs might go on to-morrow without check, and the system be continued, which was very injurious to the country. This Bill was intended for the protection of persons who were taken by surprise, having acted in ignorance of the law. Let it, then, be confined to that. He proposed, for that purpose, the introduction of the words "such playing or betting being alleged to have taken place previous to the 21st of February, 1844," so that no betting taking place after this day, should have any protection.
Mr. Wortleyentirely concurred with the noble Lord in his anxiety to limit, if it were not possible entirely to repress, the practice of betting; but he thought there was no necessity for the amendment proposed by the noble Lord. The Act was to last only for a limited period, in the expectation of an alteration of the law, and if no such alteration took place, after the expiration of the Session, or three months, or whatever time the House should assign for its limitation, all persons concerned in such transactions would be liable.
Viscount Howicksaid, that the necessity for his amendment was proved by this circumstance, that if the inquiry to be instituted should be found longer and more difficult than was expected—if they should fail to obtain the assent of the other House to their endeavours to put an end to gaming—at the end of the Session the House would be obliged to renew the Bill, and practically all bets made after this day, would be protected. This was what he wished to guard against. He admitted, that his Amendment might be inconve-

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nient to persons extensively engaged in betting, but he looked upon their occupation with so little favour, that he did not much regret the inconvenience which they might sustain.
Sir J. Grahamentirely concurred in the principles laid down by the noble Lord. He was anxious that the whole subject of gaming should be examined by the Committee, and that a total check should be put to gaming, and especially to making books upon horses on the terms, "play or pay." But at the same time he was bound to say, that the proposition of the noble Lord appeared to him objectionable, inasmuch as it partook of the character of a surprise. It was probable that, up to the very moment when they were speaking, bets to a large amount were being made against various horses for coming events, upon the terms of "play or pay;" and a great many of these bets, were, no doubt, made under the expectation of what was called "hedging" them at some future period. The consequence of adopting the Amendment of the noble Lord, would be to saddle these parties with great danger, and probable loss, which they did not contemplate incurring. Upon these grounds he should vote against the amendment of the noble Lord if he persisted in dividing the House upon it.
Mr. Humesaid, that the only ground upon which these parties came to the House for relief, was their plea of ignorance of the penalties they were incurring by the operation of the existing law. The noble Lord, by his Amendment, proposed to allow them protection for the past, but to guard against the repetition of the practice of betting for the future. He thought this was a perfectly fair proposition. He should vote for it; and if it were not agreed to, he hoped that every means would be taken to reject the Bill in its future steps.
Mr. Darbydid not think the Amendment at all necessary, even to meet the object of the noble Lord who proposed it, for if the law were not altered before the present Bill expired, or a renewed one expired, all parties making bets in the interim would be liable to be sued after the expiration of the Bill for the penalties under the existing law.
Viscount Ebringtonconcurred in the object of the noble Lord's Amendment, but with a view to avoid the charge of
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taking parties by surprise, he would suggest that the date fixed should be the first of March, or the date of the passing the Act.
Mr. James S. Wortleysaid, that the understanding come to the other night, was, that the operation of the existing law should be altogether suspended for the space of three months, in order to leave parties altogether unprejudiced by it until the Committee which was to sit upoa the subject had come to some decision in regard to it.
Viscount Howickcould not admit the argument of the Secretary of State for the Home Department, against his amendment. Was it not reasonable to expect that one "hedging bet" would give occasion to other parties to make other "hedging bets." The effect would be entirely to suspend the operation of the law against betting for a time, and when the Act expired, there would be found little difficulty in getting it renewed, and thus the practice of betting would be effectually legalised in a way which no one now dared to oppose.
Captain Rousobserved, that there were a great many Gentlemen now making books upon the Derby, and if they were to be prevented from betting after the 1st of March, a great injury would be done them. For many of them who had only "got on," or bet against, perhaps twenty horses, would not to be able to get round by betting against others; and would thus have to stand to be shot at. He would state another case of very great hardship in these laws against betting. He stood, for instance, to lose 100 l. upon a match between two horses: when the horse came to the post, he did not like the appearance of the one he had backed, and employed another party to bet off the 100 l. in the ring, so as to stand neither winner nor loser a shilling by the race. He would thus be saved harmless; but any informer who chose might attack the agent who had made the bet for him, and recover a penalty of treble the amount. The fact was, there was a great deal of absurdity about this state of the law. In a recent case, a noble Friend of his, having won a certain stake, brought an action against a party who refused to pay his stakes for those horses which he had entered. The amount claimed was 150 l., being three stakes of 50 l. each; but the learned Judge held that the engagement upon which the stakes

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were run for, having been made more than a twelvemonth anterior to the event, and the amount sued for, being more than 100 l. it could not be recovered. So that if Mr. Connop had only entered two horses, and lost two stakes of 50 l. each, his noble Friend would have recovered, but because he had lost three, his noble Friend did not get paid at all. If he made a bet as to whether one honourable Member would go out of the House before any other named, it was a perfectly legal bet, and he would recover, but if he made a bet between Ugly Buck and Rattan, it was illegal. He thought the House ought to leave betting and betters to take care of themselves. They were doing so now; the extravagant rate at which betting had been carried on being found to be one of the reasons of the decline of the turf. There were three classes of persons who made bets upon horse races—the first paid every shilling of their losses, the second paid as much as they could, and the third would make all sorts of bets with everybody they could meet with to bet with them, without any intention of paying a sixpence if they lost. He knew an instance of a father and son, one of whom backed the favourite very heavily, the other backed the field; when the race was over, one of the parties levanted, the other received his winnings and divided the spoil with his relative and confederate. These, surely, are discouragements sufficient for the turf to labour under—this was surely punishment enough for those who bet upon horse races. Really, when gentlemen talked in this House about making one law for the rich and another for the poor, it should be borne in mind that the amusement of racing was enjoyed quite as much by the poor as the rich. The rich were obliged to keep horses for the amusement of those who could not keep them themselves. As to any harm that was done to the morals by mixing in horse racing, it was all humbug. On the contrary, it did a great deal of good, in making friends, and concentrating interests, and comparing opinions as to which horse would win.
Viscount Palmerstonconfessed he preferred the clause as it stood, to the amendment proposed by the noble Lord near him. He thought it more consistent with the general understanding which the House came to the other night, and also with the usual course of proceedings in such mat-
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ters. A Committee was about to be appointed to inquire into the whole subject of gaming, and he thought it most expedient, that if in the mean time the existing law was to be suspended at all, it should be suspended altogether, till some course was resolved upon.
Mr. James S. Wortleysaid, that it did not appear to him that the amendment could have any really practical effect; for by the existing law, the party who lost money had three months to sue the winner, before the common informer could interfere.
Viscount Howickmight have been induced to withdraw his amendment, if it had not been for the argument which the Secretary of State for the Home Department had used against it. The right hon. Baronet said it would be unjust to stop betting at the present moment, as it would prevent people from "hedging" their bets. It seemed, then, that what people were really afraid of was, a stop being put to the system of betting carried on at the present day; and that was precisely what he (Viscount Howick) wished to see accomplished. He would agree to fix the 1st of March instead of the 21st of February; indeed, he would cheerfully agree as to any reasonable date which might be proposed, but he was decidedly anxious to have some date fixed.
Lord George Bentincksaid, that no bets which were made upon the coming "Derby" could possibly be made the subject of any qui tam actions before the 1st of September next, the settling day being the 18th of June, and three months being allowed for the loser to bring his action before the common informer could come in. It appeared, therefore, that the Bill could not prejudice the right of any person to penalties hereafter to be incurred; it being presumed that the whole merits of the matter would be decided upon by Parliament before the 1st of September.
Viscount Howickhad no objection to name the 1st of June as the limit of the protection.
The Amendment so altered was agreed to.
Clause agreed to.
The other clauses were agreed to.
On the preamble being put—
Mr. Christiesaid, that the parties who had incurred penalties had acted with the full knowledge of the law as it existed, and he proposed to leave out of the Pre-

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amble, "not intending to offend nor being aware that they were offending against the said recited provisions of the said act."
Lord George Bentinckcontended that the 9th of Anne, the law to which the hon. Gentleman had referred, did not apply to bets made upon horse races. And whatever might be the construction put upon that law by the Court, he was quite sure that if Lord Eglingtoun were sued for penalties under that act, no Yorkshire jury would give a verdict against him. If the parties who had been proceeded against were obnoxious to the operation of the Act, they had erred through ignorance of the law.
Mr. Roebuckobjected to the admission of the principle, that ignorance of the law was a good idea against the liabilities of its infringement. He wished to see those words struck out of the Preamble which, by recognising that principle, introduced a dangerous precedent, which might be turned against them. If they relieved the rich man from the penalties to which he was liable, on the plea of ignorance, how could they refuse to do so in the case of a poor man who broke the law, and offered the same plea?
Mr. M. Gibsonhoped his hon. Friend would insist upon the omission of the words. The parties could not plead ignorance of the law. He held in his hand a book which had been published on the law of gaming, by a barrister named Edwards, in which it was clearly shown, and cases were cited, in which it had been ruled by the Court that a bet for more than 10 l. made upon a horse race was gaming under the statute of Anne.
Mr. James S. Wortleycontended that the law of Anne was never intended to apply to horse racing. In this case the actions which had been brought against the parties for penalties were vexatious and extortionate, and that was the only ground for calling for the interference of Parliament. The parties, if they had erred, had done so through ignorance, and as there were doubts as to the true meaning of the law, it was necessary that they should be removed.
Mr. Roebuckwould put the case of a countryman coming to London and found begging in the streets. The excuse of ignorance of the law would not avail him if brought up before his hon. Friend near him (Mr. Alderman Humphery), or any
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other Magistrate, but he would be committed to prison probably for two months, for infringing an Act of Parliament. If rich men broke the law the plea of ignorance ought to be equally unavailing with them.
Mr. Hawesobjected to the Bill altogether. The Bill was, in fact, a Private Bill, the object being to relieve certain private individuals from liabilities they had incurred. The preamble of the Bill had not been proved.
Sir R. Peelthought that the principle involved in the Bill was one of considerable difficulty. He would vote in favour of the Bill, although he thought that those cases in which Parliament interfered to intercept the operation of the law were attended with great difficulty, and open to many objections. It was the peculiar circumstances of the present case which made him ready to grant the relief asked for. He apprehended that there was a general impression through the community that the law in reference to Horse Racing could not bear the construction which was sought to be put upon it. He did not believe that any one thought that betting on Horse Racing subjected those who did bet to enormous penalties, and he thought that the enforcement of these enormous penalties would be extremely unjust and objectionable. On these grounds there was sufficient reason for the House to interfere in the present case. At the same time he considered that it would be better to omit the words from the Preamble which involved the principle that ignorance of the law entitled a party to exemption from the penalties attached to a breach of the law. He was quite aware that there had been general ignorance upon the point in question, but he did not think that the insertion of the words referring to it would aid the case. His vote would be upon the grounds of the peculiar nature of the case. There was a very general impression abroad as to the enormity of the penalty; but if the principle were broadly stated that ignorance of the law warranted impunity in the breach of the law—such a plan of procedure, so far from aiding, would prejudice the case, and he would strongly advise those hon. Gentlemen who were concerned in introducing the Bill, not to subject the Measure to the prejudice which it would excite were the Preamble allowed to remain as it was. There were other classes

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in the community who were more unprotected than that class in whose favour indemnity was at present sought, and if the principle in question were once introduced they would be bound to carry it out.
Mr. James S. Wortleysaw the objection to the words in question. They had not been originally inserted by him, and he would readily consent to their being struck out.
Mr. Watsondid not understand the argument of the right hon. Baronet. He did not know on what grounds relief was claimed, if not upon the ground of ignorance of the law.
The Attorney-Generaladvised that all the Preamble should be omitted, excepting the words relative to the doubtful state of the law upon the point in dispute. He quite agreed with the hon. Member for Bath as to the impropriety of introducing the words relative to the ignorance of the law, and he thought that the hon. Gentlemen concerned in the Bill ought to take it as it was offered, and be glad to get it.
Mr. T. Duncombeobjected to the striking out of the words in question. He thought that had they not been in the Preamble the Bill would never have been brought to the stage at which it now stood. Why, the excuse and the reason for the Bill had been the ignorance which prevailed upon the subject. He could understand, however, why striking out the words referring to ignorance of the law, might be a favourite scheme on the other side of the House. They might create or put in force some law in Ireland which nobody knew any thing about, and then, when some other parties came down to ask for a Bill of Indemnity, pleading that the people proceeded against did not know that they were committing an offence in attending, say meetings, monster meetings— the opposite party could say, "Oh, ignorance of the law does not excuse you." He should certainly divide the House against the proposition for the omission of the words.
The Committee divided on the question, that the words proposed to be left out stand part of the Preamble:—Ayes 27; Noes: 81 Majority 54.

List of the AYES.

Barnard, E. G.

Brotherton, J.

Bellew, R. M,

Busfield, W.

Bernal, Capt.

Butler, hon. Col.

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Butler, P. S.

Peel, J.

Colvile, C. R.

Phillpots, J.

Easthope, Sir J.

Powell, C.

Fielden, J.

Rous, hon. Capt.

Hindley, C.

Tancred, H. W.

Hume, J.

Thorneley, T.

Kemble, H.

Wall, C. B.

Langston, J. H.

Williams, W.

Maher, N.

Yorke, hon. E. T.

Muntz, G. F.

TELLERS.

O'Connell, M.

Duncombe, T.

Pechell, Capt.

Watson, W. H.

List of the NOES.

Arundell and Surrey, Earl of

Howard, hn. E. G. G.

Humphery, Mr. Ald.

Baillie, Col.

Hussey, A.

Baring, hon. W. B.

Inglis, Sir R. H.

Baring, rt. hon. F. T.

Jones, Capt.

Barrington, Visct.

Knatchbull, rt. hn. Sir E

Bernal, R.

Lincoln, Earl of

Blackburne, J. I.

Lockhart, W.

Borthwick, P.

Manners, Lord J.

Bruce, C. L. C.

Marjoribanks, S.

Buckley, E.

Marsland, H.

Chetwode, Sir J.

Martin, C. W.

Christie, W. D.

Morris, D.

Darby, G.

O'Brien, A. S.

Davies, D. A. S.

O'Connell, M. J.

Denison, J. E.

Packe, C. W.

Dickinson, F. H.

Pakington, J. S.

Douglas, Sir C. E.

Peel, rt. hon. Sir R.

Duncombe, hon. A.

Pollock, Sir F.

Dundas, F.

Pringle, A.

Ebrington, Visct.

Rice, E. R.

Eliot, Lord

Richards, R.

Elphinstone, H.

Roebuck, J. A.

Evans, W.

Round, J.

Flower, Sir J.

Rumbold, C. E.

Follett, Sir W. W.

Rushbrooke, Col.

Forester, hon. G. C. W.

Russell, Lord J.

Fremantle, Sir T.

Seymour, Lord

Fuller, A. E.

Smith, B.

Gaskell, J. Milnes

Smith, rt. hn. T. B. C.

Gisborne, T.

Somers, J. P.

Gill, T.

Staunton, Sir G. T.

Gibson, T.

Stuart, W. V.

Goulburn, rt. hon. H.

Sutton, hon. H. M.

Graham, rt. hn. Sir J.

Trotter, J.

Grimsditch, T.

Walker, R.

Hawes, B.

Walsh, Sir J. B.

Hayter, W. G.

Wellesley, Lord C.

Hinde, J. H.

Wood, Col.

Hodgson, R.

Hope, hon. C.

TELLERS.

Horsman, E.

Mackenzie, W. F.

Houldsworth, T.

Wortley, hon. J. S.

On the question that the Preamble with the omission of those words be agreed to.
Lord John Russellsaid, that if the words were omitted, they would be in fact passing a Bill without any reason for it being assigned on the face of the document at all. Now, with respect to common informers, it had been the policy of

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the Legislature—perhaps a good policy, perhaps a bad one, but as he himself thought a bad one—in effect to say there were crimes the punishment of which was not easily enforced, except by means of common informers. They had, therefore, given the informer an interest in the conviction. It certainly did appear somewhat extraordinary after that to turn round and say that because an action had been brought by a common informer that therefore such an action should be stopped. He would not take upon himself to suggest any course to the hon. Gentleman in charge of the Bill; but he would say, that he quite agreed with the principle, that when a law had not been acted upon for a great many years, and when people had gradually come into the belief that no such law existed, it was quite right to stop proceedings instituted for penalties under such a law. But with respect to the informer, he might read the Statute by which it was provided that upon a conviction he should obtain certain advantages, and then was he to be told that Parliament was immediately to step in, and stay the proceedings which a Statute of Parliament provided should, under certain circumstances, result in an advantage to himself? He should be glad to hear some better reason for the Bill.
Mr. James S. Wortleysaid, he was placed in a difficult position between the advices and suggestions which were tendered to him. There could be no doubt, however, that the real reason why the Bill was introduced was because the actions had been brought by common informers for penalties totally disproportionate to the offence, even had the parties charged been conscious that in acting as they had done they had been committing any. He must insist on retaining the words in the Preamble.
Mr. Hawesthought that the Preamble was imperfect as it stood, and that some words should be introduced, to the effect that as the penalties were so utterly disproportionate to the offence, that therefore they should not be allowed to be levied—that would be an intelligible reason for the Bill. However, if the hon. Gentleman in charge of the Bill wished for some time for consideration, he conceived there would be no objection to postpone the Preamble.
The Attorney Generalsaid, perhaps this alteration would answer all purposes" Whereas several proceedings have been
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instituted at common law at the suit of informers or others than actual losers, and whereas no similar proceedings have been instituted at law for about 100 years, it is expedient that they should be stayed."
Mr. T. Duncombe: If the hon, and learned Mover of this Bill had not taken the counsel of the right hon. Baronet opposite, (Sir B. Peel), we should never have heard of this innovation, and have gone on smoothly in the good old Conservative way. There was no proof that the persons prosecuting these actions were not actual losers. It had been said that some of them had actually lost money. It would have been much better to have allowed the word suspension instead of discontinuance to have stood in the Bill. If this change had been effected, we should have been delighted and edified at this hour by the Attorney General for Ireland.
Mr. Brothertonsaid, that he thought the people of England had just cause to complain of the conduct of this House in wasting so much time in an attempt to screen certain noble Lords and Gentlemen who had been guilty of committing a breach of the law. It is said they were ignorant of the law; but would any man say, that in betting such large sums on horse-racing, they were not aware that they were committing a great offence against society? How can you expect the poor to be moral and orderly, when the rich set such examples? It was said that the penalties were disproportioned to the offence. These penalties were large in consequence of the enormous sums of money which were betted. He considered that all the arguments which had been urged in favour of the Bill were but intended to shield an extensive system of gambling. He regarded the Bill as tending to encourage gambling rather than to suppress it. Ignorance of the law was not regarded as an excuse for the Dorchester labourers, who were transported; and yet because the parties implicated in the present case had incurred penalties to the amount of half a million of money, they were to be protected. He should protest altogether against the Bill, as he thought the rich should be made amenable to the law as well as the poor.
Sir R. Peelsaid, the hon. Member for Finsbury had shown good reasons for his objecting to make ignorance of the law a ground for staying those actions, because he said it was probable that he should

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bring forward a Motion exempting other parties from punishment on the same ground. As it was very probable that he should oppose any such motion if made, he certainly had objected to make ignorance of the law a ground of indemnity for offence. But here parties were exempted, not on account of ignorance of the law, but because the penalties were considered enormous, and laws were found in force which were never supposed to apply to horse-racing.
Preamble, as altered by the Attorney General, was agreed to.
House resumed. Bill reported.

STATE OF IRELAND—ADJOURNED DEBATE (SEVENTH NIGHT).
Mr. T. B. C. Smith(Attorney-General for Ireland) resumed the Adjourned Debate, and said, the hon. and learned Member for Worcester (Sir T. Wilde) having thought it right at the close of the debate that morning to bring forward charges against him with respect to the mode in which he had conducted the recent prosecutions in Ireland, and having gone the length of imputing to him, not perhaps in express terms, but by insinuation, matters reflecting personal dishonour on himself, he trusted he should be permitted by the House to lay before them his defence. The course which he meant to adopt was this: He had not, unfortunately, had the opportunity of hearing the whole of the debate. He had, however, heard a portion of it, and as some matters had been adverted to by other hon. Gentlemen which had not been noticed by the learned Member for Worcester, he thought the fair course for him to adopt was—to go into the details from the commencement to the close of the case, to trace every step that he had taken in the conduct of that prosecution, and to state the grounds on which he came to the conclusions he did on every branch of the case. The earliest period to which it was necessary to advert, was the period when the informations were sworn; he believed it was about the 15th or 16th of October. The first circumstance which occurred after the informations had been sworn was one of the most extraordinary nature, which was adopted by one of the defendants—a circumstance to which he thought it necessary to advert, because, to a certain extent it regulated the course which he (Mr. Smith) adopted with re-
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spect to one of the applications subsequently made to the Court of Queen's Bench. What he alluded to was this:—A few days after the informations were sworn there was not a street in the city of Dublin in which the principal witness on the part of the prosecution was not placarded as a spy and a convicted perjurer. And to give the House an idea of the course which had been pursued by those who had declaimed so much against the administration of justice in Ireland, he would state that one of those placards was headed thus:—"Substantiated charges, of wilful and malicious perjury of of Hughes, the Government spy and informer, against the Liberal press." That gentleman had been employed over and over again as a shorthand-writer before the Committees of that House, and he had given his testimony at the late trials in such a manner that Mr. O'Connell, in his address to the Jury, passed an eulogy on the candour and fairness with which his evidence had been given. This was the Government spy—this was the Government informer, and the convicted perjurer. He noticed this at the outset of the case, because it was his opinion, that there never was such a defence as had been set up in this case. Mr. Hughes was the roan who, for the purpose of defeating the ends of justice, was proclaimed and placarded on all the walls of Dublin to be a convicted perjurer. This course being adopted at the outset, this attempt having been made to prejudice the prosecution before the bills of indictment could have been sent up to the Grand Jury, informations for perjury were tendered to the Justices in Dublin against Mr. Hughes on the 20th of October; and the extraordinary course adopted, was that of attempting to turn the accuser into the accused, and to enable those who were charged with crime to come forward as accusers. The divisional Justices, in the discharge of their duty, refused to receive those informations. Four days afterwards the Commission was opened in Dublin. He would state, for the information of the English Members, that the Commission Court in Dublin was held by two Judges of the land, and at that court the criminal cases arising within the city and county were disposed of. The parties who had thus preferred an information against Mr. Hughes had an opportunity then of preferring an indictment if they

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had thought proper. They, however, never went to the Commission Court, but allowed it to pass by without preferring any indictment against Mr. Hughes. On the 3rd of November, the second day of term, the bills of indictment against Mr. O'Connell and others were laid before the Term Grand Jury; and on the 6th of November, the bills being still before the Grand Jury, the course that was adopted was this:—An application was made on the part of the defendant Mr. Barrett, to the Court of Queen's Bench for an order in the nature of a writ of mandamus, to compel the divisional Justices to receive the information which had been tendered on the 20th of October. An opportunity was thus afforded to Mr. Barrett's Counsel to state publicly the charges of perjury against Mr. Hughes. The object being, that the statement should be published and should go before the Grand Jury, while the bills against Mr. O'Connell and others were pending and undisposed of. The question which Mr. Justice Perrin put to the counsel was this,—"Why did you not go to the Commission?" The answer was,—"Because we must have produced the original information, and an order of this Court was necessary." The reply they got from the Court was this—"Mr. Justice Burton was one of the presiding Judges, and if you had asked him he would have issued an order for the production of the original information, and there was nothing to prevent you from tendering the information before the Grand Jury." That would not have answered their purpose. The bills, as he was justified in saying from the confession of the defendants themselves, who had acknowledged the upright conduct of the witness, would have been ignored. It would not have answered their purpose, they therefore adopted the course they did. They were then told,—"The Court will not grant this order in the nature of a mandamus; send up the bills of indictment, if you please, before the Grand Jury now sitting." They were obliged to accede to the suggestion on the part of the Court, and from that hour to the present no bills of indictment had been preferred against Mr. Hughes either in that Court or in any other Court in Ireland. Such was the course adopted by those declaimers for the fair administration of justice. Such was the course of proceeding adopted
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against a gentleman whose character they now acknowledged themselves to be without reproach. The next step he should advert to was the period when the bills were found. The bills were found on the 8th of November. On that day the bills of indictment having been brought down at a late hour in the afternoon, four or five o'clock, the defendants required copies of the indictments. They were entitled to copies under the statute of the 60th of George III., and free of expense. They applied for eight copies of the indictments, and, fortunately, eight copies were ready and handed to them, it having been anticipated they would make such a claim. Having got the eight copies, it then suggested itself to the minds of some of the attornies for the defendants, the day but one after that on which the copies were served, that; possibly, in such a long indictment, there might be a clerical error. They, therefore, applied for liberty to compare the indictment with the original, with the view of founding an application for a new rule to plead, if there should be any error. Fortunately, sufficient care had been taken to prepare the copies. The eight copies were all correct, and the first step in delay failed. Upon the 9th of November, the four-day rule to plead was entered under the 60th of George HI. Delay being still the object, in order, if possible, to avoid pleading the general issue in the course of that term. The next proceeding was to serve nine notices of motion, on the 11th of November, which he had in his possession and could produce, to set aside the rule to plead; because true copies of the indictment had not been furnished, pursuant to the Act of Parliament, the names of the witnesses endorsed upon the bill of indictment not having been endorsed upon the copies. It occurred, however, to the parties who framed those notices that it would be very difficult to persuade the Court that the application was not made for the purpose of delay, because it would have been impossible to explain why the names of the witnesses were important for the purpose of pleading, though they might have been for the trial. Accordingly, three of the parties served other notices, simply asking for the names of the witnesses, endeavouring to keep out of the view of the Court what their object was. Had they succeeded on three latter notices, they would then have had recourse to the

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other nine notices. He considered it necessary and proper, as he knew those proceedings were taken for the purpose of delay, and for no other purpose whatever, to oppose that application, and to argue before the Court, as he did successfully, that the names of the witnesses were not a part of the indictment; and, indeed, no lawyer could say that they were, for this obvious reason, that the names of witnesses were never entered on the record when it was made up. He successfully resisted that application, which he believed to have been made for the purpose of delay. That attempt having failed, another application was made, to set aside the rule for pleading, because the caption was not included in the copy of the indictment and the question was, whether that formed properly a part of the indictment. The Court ruled that it did not; and that there was no instance in Ireland where it had ever been furnished. It was argued on the part of the traversers that the caption was a part of the indictment. He referred the Court to Lord Hale's Pleas of the Crown, and to a case which occurred before Lord Mansfield, and established the fact that the caption was not a part of the indictment; and the defendants were, under the Statute, only entitled to a copy of the indictment. All he sought for was to avail himself of the usual practice of the Court. On that occasion one of the Judges differed in opinion from the rest. Mr. Justice Perrin thought that the caption formed part of the indictment; but, at that time, he had overlooked a passage in Hale's Pleas of the Crown, and he afterwards said, he was not aware of the opinion laid down in that authority. Though Mr. Justice Perrin was dissentient, the majority of the Court were with him (the Attorney General) and decided upon the question according to the views he had advocated. The next step that was taken, was to tender pleas in abatement; there were either eight or nine, he did not remember which, because he did not know whether Mr. Tyrell was alive or dead at the time. The day on which those pleas in abatement were tendered was Tuesday the 14th of November, and they being tendered, it was sought to raise this question, that the indictment ought to be quashed, because the witnesses had been sworn before the
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Grand Jury agreeable to the Statute 1st and 2nd of Victoria, and not in open court. Those pleas were tendered for the purpose of delay only, and therefore he resisted them on the ground that a plea in abatement ought to be tendered at the arraignment of the party, or within four running days after arraignment; but the four days had expired when those pleas were tendered, and he felt it his duty, knowing that those pleas were merely dilatory, to resist them as being tendered at a period of time not warranted by law, and put in for the purpose of preventing him from pressing the traversers to put in their plea of guilty or not guilty in Michaelmas term. The Judges held, he admitted, that those pleas were tendered in time; and accordingly, on the following morning, the 15th of November, the day upon which the point was argued before the Court, the pleas were received, and he forthwith without a moment's delay, took demurrers to every one of those pleas. It must suggest itself to the minds of every person that the parties had had five days to take their course, to prepare those pleas and to determine on their validity, and to anticipate every objection and argument against them, whereas he had but a short time for consideration, yet they persisted in asserting that they were entitled to four more days to determine whether they would abide by their pleas or not, and file joinders in demurrer. At the end of these four days, which was on the 20th of November, he applied to have the demurrers fixed for argument on the following morning, it being, he might say, essentially necessary that they should be argued at that period of the term, and disposed of without delay, because if he succeeded in showing that they were invalid, he could enforce the plea of the general issue in the Michaelmas term. But the traversers objected to argue the demurrers, and applied for another four-day rule to compel the Crown to join in the expense of paper books, and the right hon. and learned Member for Dungarvon, who was counsel for one of the traversers, at the same time insisted upon his right to bring on another case, the case of Lord Hawarden, in which he was also engaged. Every attempt was made to resist the arguing of those pleas, and to create delay. He (Mr. Smith), however, succeeded in having the argument fixed for the following morning; and he would ask any un-

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prejudiced person not intending to find fault with a political adversary, but with a public officer, whether he had done anything that he was not entitled to do in resisting unnecessary delays connected with the trial. The case was argued on the 21st of November, and the Court unanimously decided that the pleas in abatement were invalid, and the demurrers taken on the part of the Crown were all allowed. He was able to establish to the satisfaction of the Court that Chief Baron Woulfe and Mr. Justice Moore, immediately after the passing of the Statute of the 1st and 2nd of Victoria, had decided in the same way. From that time, the invariable practice had been to swear the witnesses before the Grand Jury, and not in open Court. Had he taken the other course, the traversers would have immediately put in pleas of abatement, that he should have sworn the witnesses before the Grand Jury which pleas would have succeeded, because he would then have departed from the usual practice, and the indictment would have been quashed. Upon the authority of "The King against Johnston," in East's Reports, he called upon the Court to give an immediate judgment of respondeas ouster; but that was opposed, as well as every other point, by the traversers. At length, on the 22nd of November, he extorted from them the plea of not guilty. He did not deny the right of Members of that House to call him to account, as he was a public officer, responsible for his public conduct; but he appealed not only to that House, but to the British public, whether he took any step from first to last in this business which it was not his bounden duty to take, so long as the parties resisted the law and refused to put themselves on their country, and to allow the question to be investigated, whether they were guilty or innocent of the charges made against them. He then had the proper notices served to fix the trial for the 11th of December, under the Statute of the 1st and 2nd of William IV., which authorised the Court to fix a trial at bar in the vacation. The traversers then put in affidavits, and long affidavits, which he received at a late hour of the night, praying for delay upon two grounds—first, that from the magnitude of the case they had not had time to prepare for trial; and, secondly, that the Special Jury List for the year 1843
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contained but 388 names, of which there were between fifty or sixty Roman Catholics, several of whom were not enabled to attend in consequence of one disqualification or another; and that there were only twenty-five Roman Catholics in the lists for 1843 capable of serving, and therefore the traversers could not have a fair and impartial trial on the 11th of December. Now that Jury List was made out in October, 1842, long before any prosecution of this kind was contemplated. And that Jury List had served all the purposes of civil and criminal trials up to the period of the affidavit having been filed without the slightest complaint being made by any single human being. That list had been made out when there was no impending trial, and was up to that time never complained of. He thought he might have succeeded in opposing the motion of the traversers upon that occasion, upon the ground that it was a list of which they could not legitimately complain. Yet, though he had been charged by the hon. and learned Gentleman (Sir T. Wilde) with desiring to obtain a verdict per fas aut nefas, he consented to a postponement of the trial. He pledged his word of honour that he did so solely upon the ground that the Jury List was complained of. He thought, then, that so far as he had gone he had cleared himself to the satisfaction of all men, at least of those whose political animosity did not pervert their better judgment and make them personally hostile, from the charges brought against him; he thought, up to this point, he had convinced every impartial person that he had acted fairly. The trial having been postponed with his consent until the 15th of January, he objected to any further postponement, as the Special Jurors List for 1844 would be in force on the 1st of January. But he certainly did not consider that the jury list would take so long to prepare, and he was under the impression, that the clerks did not use so much diligence as they ought to have used. Four days' notice for striking the Special Jury was necessary, and, according to practice, the Jury must be summoned six days before the trial; therefore it was obvious that there was no time to lose—and the 26th of December was, I believe, the last day for issuing the summonses. But at that time the Sheriff had not received the Jurors' book from the clerk of the

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peace. However, on the 29th or 30th of December, the lists having been copied into the Jurors' book by the clerk of the peace, the Book was handed to the Sheriff. Under the Act of the 3rd and 4th of William IV., it was the duty of the Sheriff to make out within ten days, a Special Jury list, from the Jurors' book. According to the Sheriff's statement, he did attend before the proper officer on the 3rd of January, with the Special Jury list for 1844. One of the charges brought against the Crown was, that according to the statement of Mr. Mahony, when application was made to the Crown solicitor to consent that the clerk of the peace should give copies of the Special Jury list to the traversers, Mr. Kemmis did not consent. But why? He was most desirous to have a copy of the List, and he was totally ignorant of the Jury list until nine o'clock on the night of the 3rd of January. But he considered, and considered rightly, under the Act of Parliament, that the Jury list and the Jurors' book, were not complete until they were in the hands of the Sheriff, who was the officer to make out the Special Jury List. And yet the Crown had been called upon to consent that the Clerk of the Peace should furnish a copy of the Special Jury List which could not by law be made out by any person but the Sheriff; and the Crown knew, that if such a list had been furnished, and there had been the slightest clerical error in the name or address of any of the Jurors, there would have been beyond doubt an application to the Court to postpone the trial. It would have been said, if such a list had been furnished—" Here is a copy of the Special Jury list, furnished with the consent of the Crown, and how can you ask us, the traversers, to go to trial with such a Jury list which does not correspond with that made out by the Sheriff?" Although Mr. Kemmis was most anxious to obtain the List himself, still he could not enter into any consent, in consequence of knowing the sort of men they had to deal with. He did not mean the counsel for the traversers; he did not mean the attorneys for the traversers, but Gentlemen acquainted with legal proceedings know that there are in every case of that kind, persons instrumental in getting up the defence who are constantly taking steps which are disavowed by their principals. He apprehended, that if he went out of the precise words of the Act of Parliament, and con-
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sented that they should have a copy of the Special Jury List, furnished by the Clerk of the Peace, who had no authority to make it out, and there should be a mistake even of a Christian name in it, it would be the foundation for dilatory proceedings, and he had sufficient experience of the construction—the malignant construction—put on every act of his, to feel it necessary to adhere to the strict principles of law, unless he could be perfectly safe, as where by his own voluntary act he postponed the trial at the request of the traversers in order that the case might be tried by a jury selected from a list revised under the inspection of their own attorneys. Now, what had been the nature of that revision? What was going on in Ireland at that period? Why that which every honourable and fair man must visit with the strongest feelings of reprobation. He (Mr. Smith) held in his hand copies of printed notices signed by Mr. Mahony, the attorney for several of the defendants, whose names were printed at the head of the notice. One was a notice calling upon every Repealer to take measures to place his name upon the Special Jury Panel. Of this he did not complain; but he did complain that at the same time notices were served, notices signed by the same Mr. Mahony, upon the most respectable Conservatives of the city of Dublin, telling them, that if they did not appear in the Revision Court to support their right they would of necessity be struck off the List. And they did this not with a view to strike off unqualified persons, for those Conservatives on whom the notices were served were as well qualified as any Jurors in Dublin, but to remove every person politically opposed to them, and to pack the Jury with men entertaining Repeal opinions. Yet these were the persons who declaimed about the unfair Jury, and unbiassed administration of justice. Knowing all these proceedings although he was entitled to go to trial with the Jury Panel of 1843, although he felt that his conduct might probably not be approved of by the party with which he was usually connected, he did not from a desire to force a conviction per fas aut nefas, but from a desire to give what the traversers asked for, as necessary to a fair trial, he did consent to a postponement of the trial, in order that the Jury might be struck from the Jurors' Book for 1844. As it ultimately turned out,

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notwithstanding the omission of the names, there were 188 Catholics on the Special Jury List for 1844, and only twenty-five on that for 1843, and yet he was made obnoxious to the charge of wishing to convict the defendants without the slightest regard to the mode in which the convictions were obtained. Of this, at least, he was sure, that he should obtain a verdict of acquittal from a British House of Commons, and from the public. The next proceeding was on the 3rd of January, when the parties attended before Mr. Bourne, the Clerk of the Crown. The proposal was then made by the defendants' attorneys that the striking and drawing of the Jury should be adjourned and that persons should attend at the Sheriff's office on the part of the defendants, and on the part of the Crown, and should get copies of the Special Jury Panel. This had been consented to by both parties, and the Crown Solicitor did not see (as was stated in the affidavit of Mr. Kemmis) the Special Jury List until nine o'clock on the evening in question. On the 4th of January the parties respectively attended before the proper officer, and on that occasion Mr. Ford appeared as the attorney for Mr. O'Connell, and Mr. Cantwell appeared also for the other traversers: and he admitted, they handed in a protest against the officer proceeding to draw the forty-eight names by ballot, alleging, that sixty-five names had been omitted from the Panel, of which fifteen were Roman Catholics. Now, the Crown Solicitor, as he stated in his affidavit, was utterly in ignorance of what had taken place in the revision of the List of Jurors. He had most properly required the officer to proceed to draw the forty-eight names, and accordingly in the presence of the several and respective attornies for the traversers or defendants, and under the provisions of the Jury Act, 717 numbers were put into the ballot-box, and in the presence of Mr. Ford and Mr. Cantwell, Solicitors for the traversers, whom he believed actually shook the box, the list of forty-eight names was drawn, and, in pursuance of the provisions of the Act, the traversers got a copy of that List, and there was an adjournment of twenty-four hours, in order to allow each party, the Crown and the traversers, an opportunity of determining and deciding upon the names they should respectively strike off. On this part
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of the case, he must say, that a great misapprehension had prevailed as to the proceeding which the statute provided in respect of Special Juries, and the mode in which they were (as it was technically called) struck. He, in the first place, denied that the striking off by each side from a Panel of forty-eight names of twelve names was to be considered at all in the nature of a challenge. The Legislature never so contemplated it. Forty-eight names were drawn by ballot out of a List of 717, and the Legislature required, and did not leave it optional, on the contrary, it was imposed as a duty that each party must strike off twelve names, and thus that the List should be reduced to twenty-four. Was it the policy of the Legislature that the parties who struck off the names from the Jury List should be called upon to state the reasons upon which the names objected to were expunged? If such a practice were pursued, it would place every Special Juryman in a most unpleasant position, inasmuch as an objection to his name on the Panel would lay before the public the reasons which induced and led to its removal; but he averred, with the utmost confidence, in the presence of many distinguished members of the English Bar, that it never had been in the contemplation of the Legislature that the privilege to "strike off" from a Special Jury List should give advantage to one side more than another. The representatives of the Crown in Ireland have not called upon the other side to account to them or the public why they had struck off the names of the twelve gentlemen whom they, in the exercise of the powers and discretion reserved by the Act of Parliament, had struck off. It had been said, however, that in a criminal case it was the privilege of the traversers to call upon the Crown to show cause as to each of the twelve names they chose to strike off from the Sheriff's Panel. Up to this hour, such a construction of the Act of Parliament had never been heard of. On the 12th of January, term having commenced, emotion had been made in the Court of Queen's Bench in Ireland,—a motion of which the hon. and learned Member for Worcester had spoken, that the Panel of the Special Jury should be quashed, set aside, and cancelled. And what was it that the hon. and learned Member for Worcester felt himself justified in stating the other night? Why, that if an English Attorney General

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had been called upon to consent to the quashing of that Jury List, he would have had sufficient regard to his own honour and character as to have induced him to consent to the application. The hon. and learned Gentleman had not condescended to tell the House what was to be done as soon as the List was quashed. He charged the hon. and learned Member for Worcester, with practising a delusion upon the House and the country, when the hon. and learned Gentleman had not condescended to communicate to the public what in his judgment would be the consequence of such a proceeding with reference to the Jury List, as last night had been recommended by the hon. and learned Member. Now he would take that opportunity of explaining to the public and the House the consequences which would have arisen from the assent which it had been said the Law-officers of the Crown ought to have given to the proposed alteration of the jury list, and in stating those consequences, he begged to tell the hon. and learned Member for Worcester that honour and integrity of purpose were not confined to English Law-officers, and that there was as much honesty and integrity to be found amongst the members of the Irish Bar as with the best of their brethren in England. He should now explain to the House and the public that which the hon. and learned Member for Worcester had not found it convenient to endeavour to explain. On what principle was it that he ought to have consented that the Panel should be quashed? The Court of Queen's Bench in Ireland, with Mr. Justice Perrin on the bench, a lawyer who had been the Attorney General of a Liberal Government, concurred in the expressed opinion of the rest of the Bench, that the Jury Panel ought not to be quashed; but what would have been the consequence? The Panel could not have been quashed except on the ground that the Special Jury List of 1844 was a nullity. The Court of Queen's Bench in Ireland, however, decided otherwise, and that Court held that no right existed to interfere by a mandamus with the Recorder's Court. It had, however, been said that he, as Attorney-General, ought to have consented to an amendment of the Special Jury List by adding the omitted names. Did those who said so remember that there were other causes to be tried besides that of "The Queen v. O'Connell and others?" He asserted this as a legal pro-
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position, which, though it might not be assented to by those Whig aspirants to office with whom the hon. and learned Member for Worcester might gossip in Westminster Hall, would meet with concurrence from all acquainted with the laws of England who were unbiassed by party considerations, that he could not legally, properly, and constitutionally, assent to the addition of a single name to the Jurors' Book; if it were not so it was somewhat singular that a leading counsel for the defence in Ireland should have exhibited indignation because he imputed to that Counsel the expression of such an opinion. But what would have been the consequence of adopting the suggestion thrown out last night by the hon. and learned Member for Worcester, as to quashing the Jury Lists? Why it would have interfered with every cause to be tried in the city of Dublin. Again, the 11th section of the Jury Act provided—
"That in the event of any failure in the preparation of the Jury Panel for any particular year, all causes are to be tried by the Jury List of the year before."
And what then was the proposition of the hon. and learned Member for Worcester? Why, that he (Mr. T. B. C. Smith) should have quashed the Jury Panel containing the names of 188 Roman Catholics, and have tried the cause out of a Jury List comprising only twenty-five Roman Catholics. Or, as a further alternative, he must have consented to the postponement of the trial of the case of" The Queen v. O'Connell and others" until the year 1845. This was the course which it had been said he ought to have adopted, and it had also been urged that an English Attorney General would have had sufficient regard to his own honour to adopt. If the House would not take his word on the point, it would not hesitate to take that of Mr. Justice Perrin, who said:—
"I cannot but think that there was great negligence and a gross want of care in the way in which authentic documents have been treated; and I am not prepared to say that the whole was the result of mere accident. The Court, however, has no power to quash the Special Panel, without notice to the parties concerned, nor have we any right to go out of it. The proper course, if there has been any misconduct or gross neglect on the part of the officer, is to proceed against the party who is guilty; but here no misconduct is charged upon any of the persons concerned for the prosecution. The fact of misconduct has been

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suggested against others, but none whatsoever against any engaged in the prosecution; and upon the other grounds stated I concur in the judgment of the Lord Chief Justice."
Now he came to explain what was the nature of the imputation which had been made on this point; and he would take the opportunity of saying at once, that he did not find any fault with Mr. Justice Perrin with respect to the remarks he had thought proper to make, but the imputation was conveyed in an affidavit of an extraordinary character, which had been adverted to by the hon. and learned Member for Worcester (Sir T. Wilde).should read the passage, which was from an affidavit of Mr. Mahony, and he ventured to say that there was no Court in Westminster Hall (and he said it in the presence of his hon. and learned Friends, the Law-officers of the Crown in England, who would contradict him if he were wrong) who would act on an imputation of undo-scribed fraud, no suggestion being made what that fraud was or by whom committed. The affidavit stated that—
"That deponent, in company with two others of the agents for the traversers—namely, Messrs. Ford and Cantwell, attended next day at the office of the said Walter Bourne, and then and there protested most earnestly against any further proceeding being taken in the striking of said Special Jury, on various grounds, but chiefly on the ground that a gross and wilful suppression of the names of persons qualified to be placed on the Special Jurors' List had taken place, and deponent is thoroughly convinced that such wilful and corrupt suppression did actually take place."
Now, let the House consider what this affidavit amounted to. Did the deponent swear that the omission did not take place by the agency of some party who might have been connected with the traversers? He would mention to the House what were the singular circumstances connected with this matter. Mr. Mahony, in his affidavit, detailed what he would say was an improper proceeding. Mr. M'Grath, the Deputy Clerk of the Peace, took this course which he said was not correct, for he furnished Mr. Mahony with everything he wanted, though the Crown could not get a document of any sort from his office. In fact, copies were furnished to the traversers day after day from Mr. M'Grath's office, and it was in this way that Mr. Mahony received copies of the collectors' lists, including, amongst others, the names said to be suppressed. Mr. Mahony was
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thus furnished with the names. This Mr. M'Grath was the man who mislaid the documents, as he says, in which the lost names were contained. Mr. M'Grath having furnished the traversers with lists as prepared for revision, was afterwards, and after the revision of the lists, and after his right hon. Friend the Recorder had adjudicated upon them, applied to by Mr. Mahony to be allowed to compare the lists, which was permitted. Four persons sent to Mr. Mahony were permitted to make this comparison. In short, the other side got the run of the office; they went in and out at their pleasure; while the Crown, on the contrary, never could get one particle of satisfactory information from that office. Perhaps, now, the House might make a conjecture, if there was fraud in the matter, who it was that committed it. Next, as no reason was assigned in this affidavit for the deponent's belief that a fraud had been committed, the attention of Mr. Mahony and of the Counsel for the traversers was called to the fact, and yet when they put in the challenge to the array, they stated again an unknown and undescribed fraud, but directly or indirectly did not venture to name any person who had committed it. The hon. and learned Member for Worcester had said that Mr. Kemmis had made no answer to this affidavit. Now, he would take the liberty of reading what Mr. Kemmis stated, and which was all he could, and he was convinced that the answer would prove satisfactory to the mind of every unprejudiced person. Mr. Kemmis stated:
"That the said Messrs. Ford and Cantwell did object to proceed with the striking of the said Jury on an allegation that several of the names of persons qualified to be placed on the Special Jurors' List had been omitted therefrom, and did make many general charges and. allegations in respect to same, but deponent saith that the said Panel having been submitted to the officer by the High Sheriff in the ordinary way, and this deponent not having, as aforesaid, either directly or indirectly, been concerned in the revision of the said Jury panel, and being ignorant as to the correctness of the allegations so put forward on the part of the traversers, did, as he conceived it his duty to do, call on the said officer to proceed to strike said Jury. And saith he was not in any respect party or privy to, or acquainted with any suppression of names from said Special Jury panel, if any such, in fact, occurred."
He (Mr. Smith) had gone frequently to Mr. Kemmis's, and asked if the Special

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Jury List was made out, and if he had received a copy of it; and Mr. Kemmis had told him over and over again, that he had been to the Clerk of the Peace's Office, and could not get any satisfactory information upon the subject. So far as he had gone he did confidently feel this, that he could boldly appeal to the House and the country as to the propriety of his conduct with respect to the proceedings connected with this trial. He (Mr. Smith) insisted he ought not to have assented to the proposition for quashing the Special Jury Panel when the Court decided that he would not be justified in doing so, and if he had consented he must either have postponed the trial until the year 1815, or the traversers must have been tried by the Special Jury List of 1843; and he said that in the state of Ireland at the time he should have been guilty of a dereliction of his duty to the public if he had permitted the prosecution to be postponed for twelve months. The next ground of attack upon the conduct of the case, on the part of the Crown, was, that in the exercise of that duty which he conceived he owed to the Crown, but which he did not feel afraid to explain, he had struck off, as was said, eleven Roman Catholics from the Jury. That matter was introduced into the affidavit of Mr. Mahony, of the 12th of January, and he must say was improperly introduced, for this reason—that it had no relevancy to the grounds for the Motion stated in the Notice of Motion, and that it was simply introduced into the affidavit to furnish matter for newspaper paragraphs and libellous imputations, and he had a right, he thought, to complain, and he had stated to the Queen's Bench that he had a right to complain of the Counsel who opened Mr. Mahony's affidavit, for having omitted to state the answer of Mr. Kemmis. Now, Mr. Kemmis, in his affidavit, said, that he did not believe that eleven Roman Catholics were struck off, because he believed that only ten of the eleven were Roman Catholics, and that previously to the striking off of the twelve names he had received information, which he believed to be true, that those ten were either members of the Repeal Association, or subscribers to the Repeal fund. On that being stated to the Court, the right hon. Member for Dungarvon stood up, and said, that Mr. Kemmis was under a mistake in his affidavit; to which he (Mr. Smith)
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rejoined, that the affidavit ought to be contradicted by a statement on oath. The right hon. Gentleman said that an affidavit should be produced. That was on the 12th of January. He supposed the right hon. Gentleman made inquiry about it that day, but no affidavit was filed for nearly a month after; for it was nearly that time afterwards, when the Solicitor General, in the course of his speech in reply, observed, that the affidavit promised by the right hon. Gentleman had never been made. And what was the affidavit which was then made in consequence of the observations of the Solicitor General? Let the House understand that the name of every member of the Association was enrolled on its books. He had in his possession the printed book which was proved at the trial, and which was printed at the expense of the Association, from which the fact appeared. In books kept by the Association entries were also made of every shilling that was received, so that any number of persons—5,000 if it had been necessary—might have been called on to swear positively whether the eleven, or any one of them, were members of the Association or subscribers to the Repeal fund. This being the case, then, what was the affidavit which the right hon. Gentleman produced? An affidavit made on the hearsay and belief of four attorneys in the cause; and he stated it as a legal principle beyond all question, that if parties in the possession, and having the control or positive irrefragable proof of a fact, keep it back, and produce an affidavit on hearsay and belief, he said, that affidavit was not worth one farthing. But what, after all, was this affidavit on hearsay and belief? It only mentioned by name two individuals—only two out of the eleven. Now he did assert, that a deception had been practised by a portion of the public press of Dublin, day after day, upon the public mind in England by means of statements which were known to be false when they were made, for the parties who made them might at any time have gone to the Association and ascertained the truth, but by which the public mind was led to suppose that all or the greater number of the eleven were not connected with the Association either as members or subscribers. The only two persons named were William Hendrick and Michael Dunn, leaving the inference that Mr. Kemmis was correct as to

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the remaining nine, for there was no denial of their being Repealers; but the point to which he wished to call attention was, not simply that Mr. Kemmis was correct as to the remaining nine, but that as to the greater number of the nine they had proof that Mr. Kemmis's information was most trustworthy; for they had ascertained that one of the nine had attended Repeal meetings both at the Rotunda and at Mullaghmast. Another had signed the requisition for the meetings at Mullaghmast. [Name, name.] He would not name those individuals, for if any Gentleman who wanted the names would stud over to the Association he would find them there. What he asserted, and it was capable of contradiction if untrue, was, that one of those nine persons had attended the meetings at Tara and Mullaghmast, and the meeting at the Rotunda after the day of the Clontarf meeting; another had signed the requisition for the Mullaghmast meeting; another had signed another requisition; another had attended the dinner at Longford, where the speech respecting Lord Beaumont was delivered; another had attended the Mullaghmast Repeal banquet; another had signed a requisition after the prosecution had commenced, the advertisement concluding with the words "Courage displayed in the hour of danger, and friendship in the hour of peril." He supposed it would be allowed that was sufficiently explicit language. Another of the nine was a subscriber to the Repeal rent, and two more were openly and avowedly Repealers. Then with respect to Michael Dunn, who lives in St. Patrick's Ward, there was his affidavit that he was not a subscriber to the Repeal rent; but however Michael Dunn of St. Patrick's Ward signed a requisition in May 1842, requesting a meeting of the inhabitants of that ward to adopt such measures as might appear necessary for the effectual collection of the Repeal rent in that ward, and there was no resident of that name in St. Patrick's Ward at that time, but the person in question, as might be seen from the Dublin Directory. But it was immaterial whether it were so or not, for the House was not to enter on the inquiry; because it was only necessary for him to prove this, that Mr. Kemmis believed, as he swore, that ten of the parties struck off, professing the Roman Catholic religion, were either members of, or had subscribed to the funds of the Association; and he showed
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that he had good reason for making the statement, and on the 12th of January, when the affidavit was produced, he stated in it that he still believed his information to be correct. He asked whether or not he was liable to censure because he did not accede to the proposition of the traversers by quashing the Special Jury Panel, which would have had the effect, of either postponing the trial until 1845, or remitting the traversers to be tried by the panel of 1843, anti whether it was his duty to have persons connected with the Repeal Association on the Jury to try this prosecution for conspiracy, the Overt Acts laid being, many of them, the meetings of that very Repeal Association. To make the case more clear and indisputable, there was a decided case in Moody and Robinson's Reports—he had seen the case that morning, but he had forgot the name of it—in which, under circumstances connected with a district in which a riot took place, it was decided that that was a good ground of challenge against any juror from the district. He wished to state distinctly, that he thought it would be a good ground of challenge to a common Juror, that the persons challenged were subscribers to the funds of an association the meetings of which were laid as Overt Acts in the indictment. He said further, that in the case of the Special Jury no reason being necessary to be assigned, under the Jury Act, for striking off jurors, there was nevertheless legitimate ground for striking off those the Crown had struck off. Some observations had been made by the hon. and learned Member for Worcester, in which he adverted to the statement of the right hon. Baronet (Sir J. Graham), he believed before he had been able to attend in his place, with reference to the Crown not having taken a common Jury, and the hon. and learned Member was pleased to say, that if a common jury had been taken, the Attorney General for Ireland, dared not—that was the expression the hon. and learned Gentleman used—have set aside a juror. Now he must confess, he was suprised to hear a Gentleman who had been a law officer of the Crown deny the prerogative of the Crown, and he must say, that though he could not if he had taken a common Jury have exercised that prerogative of the Crown without being subject to responsibility for doing so, yet he would have dared to set aside any priors, if they had been Members of,

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or subscribers to, the Repeal Association. But he had to observe, that he did not require instructions flow the hon. and learned Member, as to what was his duty with reference to common Juries; for shortly after he came into office, without the knowledge of Her Majesty's Government, he had written to all the Crown Solicitors in Ireland instructions conformable to the orders issued by Chief Baron Brady. They had also been adopted by the hon. and learned Member for Clonmel (Mr. Pigot), by Mr. Blackburne, and by himself. He might mention, however, that one part of the instruction was, to set aside all publicans, and it did so happen, that one or two of those who were actually struck off the Special Jury were publicans. He must now take the liberty of calling the attention of the House to certain extraordinary proceedings, at which he was present as an eye-witness, and about which there could be no doubt. He would give an instance of the way in which Gentlemen opposite had acted in the administration of justice when they were in power. A gentleman named Pearce, a Chief Constable of Police, of high character and respectability, was stationed in the town of Carrick-on-Suir, in Tipperary, when it happened that a quarrel arose between the men of a company of infantry who had just marched into the town and some others who were already quartered there. One of these parties was joined by the townspeople, and a most formidable riot ensued, which finally compelled Mr. Pearce to order his picket to fire upon the rioters. The consequence was, that a boy, named Slattery lost his life; Mr. Pearce was put on his trial for life at the ensuing Clonmel Assizes, where he (Mr. Smith) was present, and where the right hon. Member for Dungarvon prosecuted Mr. Pearce for murder. Now, what was the course pursued by that right hon. Gentleman when the life of a fellow-creature was at stake? He could prove that every thing he asserted was true, and could give the names if necessary. Well, how had the right hon. Member acted? Why, he had set aside on behalf of the Crown thirty-six jurors, and of the first thirty so set aside, there were twenty-nine Protestants. That was an incontrovertible fact, and he threw it out for the serious consideration of that right hon. Member whether he could ever have laid down his head in peace, if that Gentleman had been convicted by
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such a Jury. He stated facts correctly: he defied contradiction; and in a case where a prisoner had a right but to twenty challenges, the Crown, under the auspices of the right hon. Member for Dungarvon, had struck off thirty-six persons, of whom twenty-nine were Protestants. And these were the parties who considered themselves justified in telling him that he durst not strike off any person from a Special Jury List; or as, indeed, that extraordinary assertion had been now qualified, "unless a sufficient cause was shown." He had never yet heard of "a sufficient cause" for striking off the names of the twenty-nine Protestants at Clonmel. Having made these observations, he would again advert to the circumstances connected with the challenge of the array of the Grand Jury Panel. The facts had been already substantially set out. When that question arose, he stated that if the defendants were right in their view of the law, if the book for 1844 was null and void, and if the Court of Queen's Bench were wrong in their adjudication, on his demurrer to the challenge, their judgment being on record, a writ of error would he directly to the House of Lords. It was not necessary for that writ to go through the Court of Exchequer where the Crown was concerned, as that Court had a right of appeal only in civil cases. The defendants could thus go at once to the House of Lords. They would have a right to appeal, if they were so very confident? They might avail themselves of that right if they were correct? A charge had been brought against him in his absence by a gentleman with whom he had not been acquainted (although he was an Irish Member) until his arrival in England. From all he had heard and knew of that hon. Gentleman (the Member for Cork) he was persuaded that the hon. Member would not intentionally retail assertions which were not correct, and would feel sorry when the hon. Member heard his explanation of the fact to which he alluded. The hon. Member for Cork stated that he had been in the habit of compelling the attendance of the traversers of the Court of Queen's Bench throughout the whole of each day. There was not even the shadow of a foundation for such an assertion. He had only acted then as he should act again under similar circumstances. Now as to the facts. He believed, that with the exception of one day on which

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Mr. O'Connell was stating his case to the Jury, and of another when he attended from a desire to hear the hon. Member for Dungarvon, Mr. O'Connell was not ten minutes in Court on any day throughout the whole of the trials. He had never thought of looking or inquiring whether Mr. O'Connell were there or not; and he would have thought it harsh indeed if he had insisted on that Gentleman's constant attendance. With respect to Mr. Duffy, he had been informed that he was in delicate health, and he immediately said that Mr. Duffy might come down when he pleased, and accordingly two o'clock was the usual hour of that gentleman's appearance. As to the other traversers, so little regard had he paid as to whether they were in court or not, that if he were that moment asked on his oath whether any of the defendants was present on any one day, he would not be able to answer it. He had never thought of adopting a course so ungenerous or so improper. He would not attempt to carry out such a course of petty hostility, of which he had trusted, and did believe, that the public opinion of his character in Ireland would have held him incapable. Throughout the whole of the proceedings the traversers were never hindered going about as they pleased, unless when technical questions arose—as on the first morning of term, when the Jury were sworn, or when the witnesses had to identify some of the parties, where it was absolutely necessary they should be present. On such occasions it behoved the Crown to take care lest some legal difficulties should arise from the non-attendance of the traversers, who were therefore required to appear. In fact, he was informed that Mr. O'Connell's carriage was waiting for him to drive him to his house every day. There was a circumstance he would now explain to the House. On the first Monday after the trials had commenced, it was intimated to him that the hon. Member for Cork had left the Court, and had gone down to attend a meeting of the Association, at which the hon. Member for Limerick (Mr. W. S. O'Brien) was in the chair. The defendant had gone down there, as he believed, to make the proceedings then going on a subject of commentary. He did then, as now, feel it would not be tolerated in this or in any other country that, when parties were on their trial for acts among which were their attendance
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on meetings of a political body, they should be permitted to appear at an assembly of that very society and comment upon the proceedings which were taken against them. He was satisfied that the Member for the City of Cork would feel that he had done him injustice in the charge he had brought against him, which was, however, he was sure, unintentional on his part. The hon. Member for Worcester had complained that Government had not sooner put a stop to those meetings, and had attributed to them an imputation which had been cast upon himself by the Member for Dungarvon, to the effect that they were laying a trap for the people. They had said that the meetings should have been indicted, and that no warning had been given to the people by Government. Now, what were the facts of the case? A Speech was delivered in the House of Lords at the closing of the Session, on the 24th of August, wherein the proceedings of the agitation were made the subject of strong observation, and the seditious conduct of the parties themselves mentioned with censure. Now, he asked, was not that an intimation of the feeling of Government on this question, and was it not sufficiently strong? And how was this intimation from the Throne received? The moment Her Majesty's Speech reached Dublin a meeting of the Association was called, and a notice of a counter-manifesto to the Queen's Speech was then given which was afterwards published on the 17th of September, addressed to the Irish subjects of the British Crown, in which the people were told that they had now nobody to look to but themselves, and that they were not to look to Parliament in future—an avowal which has sedition on the face of it. Meetings immediately followed. They were held in succession at Loughrea, Clifden, Lismore, and Mullaghmast, and at each and all of them the Government and its authority were set at defiance,—the people were told that the Government threatened them, was about to go to law with them, but that they should not be afraid, for their leader was too old a bird to be caught with chaff. The law and the authority of the Crown were derided, and the people were told that their leaders would proceed with the agitation, notwithstanding the intimation in Her Majesty's Speech. Now, he had much to learn, if after this it could be said, with any show of reason, that the Government had been entrapping those

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people into the commission of crime, or that they had laid in wait to catch them, without caring for the suppression of that agitation which had been the curse of Ireland. The hon. and learned Member for Worcester had told the House that the Law-officers of the Crown in Ireland had wrested the law and strained it to suit the purposes which they had in view. That was the extent of the charge which the hon. and learned Gentleman made, but he did not find it convenient to car: y the charge any further. The hon. and learned Gentleman did not venture to tell the House that the Law-officers of the Crown in Ireland had prosecuted in a case where no offence had been committed. If they had in the minutest particular done anything which was not according to law they would soon have heard of it. The hon. and learned Gentleman was cautious enough in the way in which he brought forward his accusations, because he contemplated the possibility of being called upon to argue the question at issue before the House of Lords—nor did he go the length of denying the existence of the cases applying to this question which had been cited, neither was there any attempt made to get over the force of the precedent referred to by his hon. and learned Friend, the Member for Exeter, contained in the State Trials of the year 1795, where the proceeding was a prosecution for sedition. But, said the hon. and learned Member for Worcester, these precedents did not apply to the state of facts that existed in Ireland. That those principles of law never had been applied to meet such a state of facts might be true enough; but there never before had existed such a state of facts. There never existed in England a state of facts calling for such an application of the law, because in this country the law was respected. The hon. and learned Member for Worcester's ideas as to straining the law are somewhat singular. The case says he is positively one of high treason, and your indictment is for a misdemeanor; and thus he was to be censured for not having introduced the word "traitorously" into the indictment. And he was told that he had adopted an indictment for misdemeanor, and applied it to a case which really was one of high treason. The hon. and learned Member for Worcester then referred to Lord George Gordon's case; but the next time that he walked
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through Westminster Hall, if the hon. and learned Gentleman took the trouble of inquiring into the opinions of the learned Gentlemen whom he should meet there, he would find that the views which he took of this question were not supported by the general opinion of the Bar of England. The hon. and learned Gentleman told the House that Lord George Gordon's meetings were called for the purpose of intimidating the Members of that House, and that these assemblies approached to the very doors of the House; but was there any lawyer, still less, was there any judge, who would tell them that the difference between that state of things and the state of affairs in Ireland could have the effect of establishing any legal distinction? The House must see that the case of the hon. and learned Member for Worcester depended upon whether or not the acts intended to effect intimidation took place in Palace Yard or in some other locality. According to the hon. and learned Gentleman, if the meetings were held at a distance, there was no intimidation. Whatever he might think of Irish law, there was no member of the profession, even in that country, who could be induced to subscribe to such an interpretation of the law—it would be as little successful in the Four Courts as in Westminster Hall. Surely unprofessional Members must see that intimidation might be directed against the Legislature as readily at a distance of fifty or sixty miles as at the very doors of the House. Perhaps the hon. and learned Member thought it might be good House of Commons law—law good enough to go down with country Gentlemen; but he must have known that it was a doctrine to which no judge in the land would give the sanction of his opinion. It was in the next place argued, that because the people did not assemble with arms in their hands, that, therefore, there could be no intimidation; but what said Lord Tenterden, Mr. Justice Holroyd, Mr. Justice Bayley, and Lord Wynford on that point, in the case of "Retford and Burley." When that case was argued in banc those judges held that unarmed multitudes, if they met for the purposes of organization, or for the purpose of making a display of physical strength, it made no difference whether or not they had arms in their hands, for whenever it was wished that they should strike a blow all that would be required

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was to put arms in their hands. That was the doctrine held by the most eminent judges in this country—that was their decision; and if they had any weight with the profession, or with the country, the law laid down by the hon. and learned Member for Worcester must be considered utterly unwarranted. The indictment, said the hon. and learned Member for Worcester, though the law had been strained for the purpose, was not invalid; but he led the House to suppose that one of the counts which charged the defendants with holding meetings for the purpose of exciting disaffection and discontent was not in accordance with legal principles. Now, it did so happen that that part of the indictment had been founded upon a precedent supplied by the late Government, and to which his attention had in the first instance been called by reading in Carrington and Payne a report of the case of "the Queen v. Vincent and Edwards;" but, as reporters frequently gave indictments short, he thought it well to write to Mr. Maule, the Solicitor to the Treasury, requesting he would be so good as to favour him with a copy of the indictment, and the count in question was copied verbatim et literatim from the indictment prepared at a time when the hon. and learned Gentleman was one of the Law-officers of the late Government. The hon. and learned Member might read the case in 9th Carrington and Payne. He could give him the page if he wished for it. The count to which he referred charged the defendants with confederating to excite discontent and disaffection in the minds of Her Majesty's subjects—and to excite Her Majesty's subjects to hatred and contempt of the Constitution and Government, and to unlawful and seditious opposition to such Government. The hon. and learned Gentleman might have forgotten the terms of his own indictment. But, besides the accusations now mentioned, the indictment in the present case charged the defendants with conspiring to stir up jealousies, hatred, and ill-will amongst the inhabitants of Ireland towards those of England, and also contained various other charges. The worst, then, that he could be charged with, was the sin of copying the conduct of the hon. and learned Member for Worcester. He admitted that to follow such an example was a bad habit. After all, the principal
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accusation brought by the hon. and learned Gentleman was, that the law had been strained. That was a charge barely intelligible. It was strange to charge the Government with straining the law, and in the same breath to tell them, that when they might have prosecuted for high treason, they were greatly to blame for contenting themselves with proceeding only for a misdemeanour. To prosecute for the lesser offence, was what the hon. and learned Gentleman called straining the law. That indeed was a strange way of straining the law. The hon. and learned Gentleman did not venture to say, that the indictment was not proved, he said, however, that there was an attempt, on the part of the Law-officers of the Crown in Ireland, to put down the press. They did not prosecute the press, as the press, but they maintained—and he was sure the House would support them when he said—that a person connected with the press was not to enjoy immunity because of his connection with the press. Dr. Gray and Mr. Barrett had attended several of these monster meetings, and had taken a most active part in them; and with respect to the statement of reading the newspapers as evidence against the traversers, it was a singular circumstance, that when they had offered these newspapers as evidence, he thought their admissibility would be questioned and he was prepared, on a decision, in "the King v. Hardy," to argue their admissibility; but having formed an opinion that they were admissible from the respect which he entertained for the hon. and learned Member the Solicitor General for England, he had requested his opinion, and had received from that hon. and learned Member an opinion, going further than the one which he had entertained. By the rules of the Repeal Association, which had been proved at the trial by a printed document which they had given in evidence, the printing of which was paid for by the funds of the Association, they had proved that it was part of the regulations of the Repeal Association, that the Repeal-wardens, with a view of carrying out the organization throughout the country, east and west, in every parish and district where a newspaper could be circulated,—that in every district where 20 l. were subscribed, it was the duty of the Repeal-warden to take care that a three-day paper—Mr. Barrett's paper, or

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the Evening Freeman—should be circulated gratis; or if 10 l. were subscribed, that a weekly paper—the Nation was the weekly paper chiefly chosen—should be circulated, and by that means thousands a year had been put into the pockets of these newspaper editors. By the same document it was proved, that instructions were given to the Repeal-wardens to hire rooms in each district, and to take care that the papers were circulated in such a manner as to be read by as many persons in the neighbourhood as possible. Every man of that Association was a publisher of the Repeal papers circulated throughout the country; and it was by the circulation of these most mischievous and inflammatory articles which they contained that the minds of the Irish people had been poisoned, and that previous to these monster meetings every feeling of hostility that could be infused into the human mind had been raised against their brethren in this country. That system had been carried on to an extent which no person who had not read the evidence could believe to be possible. The organization had been carried on mainly through the instrumentality of these newspapers. Two of these editors had been attending monster meetings, and making speeches of the most inflammatory character; and was he to be told that, because these gentlemen happened to be newspaper editors, therefore they were to have impunity from the consequences of the commission of crime? There was one subject on which he wished to say a few words,—it was with respect to an absent individual for whom he had the highest respect, and whom he should continue to hold in the greatest respect, notwithstanding the malignity with which he had been pursued in common with every one—witness, jury, counsel, or judge—who had been engaged in an endeavour to aid or assist in the putting down of this dangerous conspiracy which was spreading throughout the country. He spoke of the Chief Justice. The Chief Justice, in his charge to the Jury had distinctly stated, that he had the concurrence of his brethren in the law as he laid it down. If he had strained the law, it had been the straining of the hon. and learned Member for Worcester—a straining of high treason into a misdemeanour—and it was a straining of the law which they would recollect that Mr. Justice Perrin who had held the office of Attorney General under the late Go-
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vernment had concurred in. Mr. Justice Perrin was present when the Lord Chief Justice stated, that he had the assent of his brethren on the Bench in his statement of the Law, and Mr. Justice Perrin would have been guilty of a dereliction of his duty if he had failed to express his dissent, if he did not concur in the law as stated by the Lord Chief Justice. His friend the Solicitor General for Ireland had in his reply read several of these documents, contained in the newspaper publications, to the Jury, and with regard to a statement which had been made relating to them, he could say with perfect confidence (for he was sitting close to the Solicitor General)—although he admitted when these documents were read, they were handed up to the Bench. He denied that the Solicitor General had little pieces of the extracts of speeches pasted on sheets of paper to hand up to the Bench. He knew the documents that were handed up better than any of the Counsel on the other side, and he denied the imputation of the hon. and learned Member. Although he admitted that leading articles had been printed on slips for convenience, yet the whole document had been handed up; and he denied the fact stated, that scraps of documents, pasted on sheets of paper, had been handed up. With respect to the charge of the Lord Chief Justice, he freely admitted that it was not the habit for defendants who were charged with an offence to be in love with a judge's charge; and he knew that very often the counsel thought, from the feeling which they had when they defended a prisoner, that matters might be stated by the judge which other persons by and not concerned in the cause did not think it relevant to state. It frequently occurred in the course of that trial, that a mass of evidence was given by the defendants which he, and those concerned with him, believed not to be admissible. A speech of Mr. O'Connell made in 1808, and another made in 1810, had been given in evidence, which had no bearing on the defence. But though he had thought them inadmissible, the counsel for the Crown had come to the conclusion, on the best consideration of the case, that they would throw as little obstacle as possible in the way of evidence. He denied that he had made any legal objection as to the admission of the documents of 1808 and 1810. He positively stated that he did not. The reason he did not was, be-

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cause in Horne Tooke's case in this country a document of twelve or thirteen years antecedent had been read. He did not think that the decision admitting that document as evidence was well founded; but he had thought it better not to oppose the evidence and no objection was made by him to its admission, and could not have been made in his absence, as he was scarcely a moment absent during the trial. He had trespassed upon the attention of the House at greater length than he was perhaps justified in doing, but he had been impelled to do so by the recollection of the charges which had been brought against him by the hon. and learned Member for Worcester. He had abstained from noticing many allusions to the case which had been made (though from his familiarity with the case he could easily enter into the merits), because it was not yet concluded, and he thought he should discharge his duty better by not going through the merits of a case which might receive more discussion before its final determination. He was grateful to that side of the House for having listened to him with attention. If he had said anything warm he was sorry for it; but a person placed in his position, under accusation, might naturally use a little warm language. "I will only (continued the right hon. and learned Gentleman), make one further observation. Complaint has been made against me—and I admit with just foundation—for one act which I committed in the course of these proceedings. I was misled by a feeling of irritation which ought not to have governed any act of mine, circumstanced as I was. I permitted myself, the Court having adjourned for a few minutes, immediately after insulting language had been applied to me, to take a step which I deeply regret. But this I can say, that I am sure there is not a Gentleman in this House who would not make allowance for a person acting under the impression that an improper charge had been brought against him. I wish to be understood, when I mention Mr. Fitzgibbon's name, that I shall not say one syllable to hurt his feelings. He is absent, but I believe if he were present he would admit that language calculated to wound had escaped him inadvertently. Entertaining those views, I shall not say one syllable that can inculpate him. It would be base and treacherous of me if I did so. I take the
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blame upon myself, and can only say farther that I considered—I cannot say whether rightly or wrongly—that I had had a gross insult passed upon me. Whatever my character may be—and I think I may appeal to my political opponents—I may at least say, that during the whole of my life in Ireland I have kept up a character for personal honour and integrity. Conceiving that an imputation had been thrown out against what I considered to be my personal honour, in a feeling of excitement during the adjournment of the Court for two or three minutes I penned that note. If the Court had never adjourned, it would never have happened at all, because it would have all passed off in a few minutes. The note was not delivered in Court; it was suggested that I had it sent in Court, but that was not so; I sent it from a chamber adjoining the Court, and I believed that the Judge and Jury and all were out of court; not that that indeed makes much difference; nor do I urge it as an excuse—far from it. I admit I acted with impropriety, but under the circumstances, with a strong feeling that a personal insult had been passed upon me, I do think that gentlemen of generous feeling will be inclined to make some allowance. I shall add nothing more with respect to this, except that I am willing to say, as Mr. Fitzgibbon is absent, that I believe I was mistaken in the construction I put on his language. I only advert to it, because if I did not, it might be supposed from my silence, that I am a person not willing to admit when I am wrong; and I am by no means desirous to be subject to such an imputation." There was only one other matter to which it was necessary further to advert, and that was, a charge which had been brought against him by the right hon. and learned Member for Dungarvon, that he had used some language at a meeting in Dublin offensive to Roman Catholics. Now he had taken the trouble to go to the shop of Mr. Milliken, the bookseller in Dublin, where there was a pamphlet containing a full report of the speech which he had made upon that occasion. It was the fullest account which had been published; he had purchased it, and had read it carefully over from beginning to end, and though he had made use of strong language with regard to the Appropriation Clause, declared he should have no hesitation in reading the whole of that pamphlet to any Roman

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Catholic in that House, and he did not believe it would give the slightest offence. He certainly should not be justified, and he must say that it had never been his custom through life to cast imputations; if he had indeed used language offensive to Roman Catholics it would have been highly indecorous of him to have done so. It would grieve him very much to say anything hurtful to the feelings of Roman Catholics, and it would be extremely Unlikely that he should do so when he had, as the right hon. and learned Gentleman the Member for Dungarvon knew, been up to the year 1829 a firm and sincere friend to Emancipation. He did not know whether he had, but he might have, omitted to answer some matters which had been alleged against him, in consequence of not having been present at the earlier
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part of the debate, and he was not so practised in the ways of that House as other hon. Gentlemen might be. He did not feel quite at home yet in the House of Commons, though he felt quite at home in Court. But he felt bound to say, that the attention and patience with which he had been listened to in the course of the remarks which he had thought it necessary to offer, and the indulgence which he had received from both sides of the House, would make him more easy for the future, and when next he should feel called upon to address them, trusted, that he should not make so gross a trespass upon their time as he had upon the present occasion.
Debate again adjourned. House adjourned.