Sitting of 21 November 1867

MINUTES.
SELECT COMMITTEE—On Printing appointed.
PUBLIC BILL—Ordered—Metropolitan Streets Act (1867) Amendment.
First Reading—Metropolitan Streets Act (1867) Amendment [2].

CONSUL CAMERON.—QUESTION.
COLONEL SYKES, who had given notice to ask the Secretary of State for War, Whether Consul Cameron holds a Commission in Her Majesty's Army at present; and, whether he formerly held a Commission; and, if so, what were the alleged reasons for his retirement? said, he wished to say a word in explanation of his Question. On looking at the blue book, he found that Mr. Cameron was sometimes addressed as Consul and sometimes as Captain Cameron. He would simply ask, whether Consul Cameron held a Commission in Her Majesty's Army?
SIR JOHN PAKINGTON: The hon. and gallant Gentleman placed on the Paper a Question of a rather more extended character than that which he has just asked; but I hope that, in justice to Consul Cameron, I may be allowed to answer the Question as it stands on the Paper. Consul Cameron does not now hold a Commission in Her Majesty's Army. He did so formerly—namely, from 1846 to 1851. He was then an ensign in the 45th Regiment; but in 1851 he sold out in consequence of his being unable to obtain promotion under the purchase system. He then settled in the Colony of Natal, and served in command of an irregular force during the Kaffir War. For his services at that period he received the war medal. Subsequently he served under Sir William Fenwick Williams, before and after the siege of Kars. During that time he held the local rank of captain. I have seen a certificate from Sir Fenwick Williams relating to Consul Cameron's military services at that period, and in it his gallantry and ability are spoken of in the highest terms.
COLONEL SYKESsaid, he was glad the right hon. Baronet had answered the latter part of the Question as it stood on the Paper. He had not put it, because he had been requested not to do so.

CATTLE PLAGUE.—QUESTION.
MR. HODGKINSONasked the Vice President of the Council, Whether, as the Order in Council of the 23rd day of October last has abolished all restrictions as to the movement of Cattle to and from Markets which are open under Licences from the Privy Council, any and, if so, what objection exists to allowing, with the same absence of restrictions, the sale of Cattle at Fairs legally and customarily held in those towns where such licensed Markets are held?
LORD ROBERT MONTAGU: There is no objection to the licensing of sales of cattle on regular fair days. Fairs are prohibited by the Consolidated Cattle Plague Order, and there is no provision for licensing them; but the sales licence which is always granted unless there are some special objections, answers the purpose exactly, the non-licensing of fairs being merely technical.
MR. HODGKINSONasked if he was to understand that cattle could be sent to fairs without passes?
LORD ROBERT MONTAGUsaid, that the rule was the same as with regard to sales. Cattle could be sent for sale at present without passes.

NAVIGATION OF THE THAMES—THE MAIN DRAINAGE OUTFALL.

  QUESTION.
  MR. CRAWFORDasked the Vice President of the Board of Trade, Whether it is true that the Navigation of the River Thames is in danger of being obstructed by the formation of mud banks near the outfall of the Main Drainage Sewers at Crossness and Barking Reach?
  MR. STEPHEN CAVE: Early in the summer a vessel grounded in Barking Reach at a time of the tide when there ought to have been sufficient water to float her. A survey was ordered by the Conservancy Board, the Report of which, presented on the 10th of June, states that there were large accumulations of mud, in some places to the depth of six feet, off the Main Drainage outfall. Some of this mud was sent to Dr. Letheby, and an analysis made by him, the Report of which is dated the 24th of June, left no doubt in his mind of its being composed in a great degree of sewage in a state of decomposition. On the 25th of June a communication was made by the Conservancy Board
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  to the Metropolitan Board of Works; to which a reply was sent on the 11th of November, stating that the Board had acted in obedience to Acts of Parliament, and that it was the duty of the Conservancy Board to remove shoals. The Conservators will have before them a report from their engineer on the best mode of doing this on Monday next, and will proceed at once to act upon it. There is therefore no danger of the navigation of the Thames being obstructed. I have received copies of a minute of the Metropolitan Board of Works questioning the alleged origin of the shoal and their liability to remove it, also of a report from their engineer admitting that the question is a complicated one, and recommending a conference with the Conservancy Board for the purpose of discussing the whole subject.
  MR. CRAWFORDasked, whether there would be any objection to produce the Papers to which the right hon. Gentleman had referred?
  MR. STEPHEN CAVEreplied, that as far as he knew, there would be no objection whatever to produce them.

  ABYSSINIA—TELEGRAPHIC COMMUNICATION WITH THE EXPEDITIONARY FORCE.—QUESTION.
  MR. CRAWFORDasked the Secretary of State for India, Whether any arrangements are being made for connecting by Telegraph the port of disembarkation of the expeditionary force on the coast of Abyssinia with the ports of Suez and Aden?
  SIR STAFFORD NORTHCOTE: I am not aware that any arrangements such as those referred to by the hon. Gentleman are in progress. A proposal was made to the Government on the part of the Telegraphic Construction and Maintenance Company which I found it impossible to entertain. I, however, informed the Company that if they thought fit to lay down a line of telegraph along the Red Sea the Government would make arrangements for its temporary diversion to the port of landing; but I have no reason to think that my proposition will be accepted.

ARMY—STAFF APPOINTMENTS.

  QUESTION.
  SIR PATRICK O'BRIENasked the Secretary of State for War, When the Returns relative to Staff appointments,

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  ordered in June last, will be laid upon the Table?
  SIR JOHN PAKINGTONsaid, that the Returns were ready and would be laid upon the table in a few days.

CASE OF THE CONVICT MAGUIRE.

  QUESTION.
  MR. WATKTNsaid, the House were aware that Thomas Maguire, the Marine, who had been convicted at the recent special commission in Manchester, and sentenced to death, had since received an unconditional pardon. It appeared, however, that Maguire had been discharged from the service. He wished to ask the Home Secretary, Whether he was prepared to recommend that he be restored?
  MR. GATHORNE HARDY: If the hon. Member puts the Question to-morrow? I will answer it.
  MR. CORRY: Perhaps the House will allow me to state that Maguire has been restored to the service.

  SUPPLY—QUEEN'S SPEECH.
  QUEEN'S SPEECH considered.
  Motion, "That a Supply be granted to Her Majesty:" Committee thereupon To-morrow.

METROPOLITAN STREETS ACT (1867) AMENDMENT BILL.

  LEAVE. FIRST READING.
  MR. GATHORNE HARDY: The House is aware that at a very late period of last Session a Bill was passed for regulating the traffic of the metropolis. I am informed that the clause in that Act having reference to persons placing goods on the pavement would, if carried out in strictness, do great injury to a large number of industrious people who earn their livelihood in that manner. I have now to ask leave to bring in an Amendment Bill. It is a very short one; but it contains a clause which provides that the prohibition as to the exposing of goods for sale in the manner I have stated shall not apply to costermongers, street hawkers, and other itinerant hawkers, so long as they carry on their trade in conformity with regulations to be made from time to time by the Commissioners of Police. The right hon. Gentleman then moved for leave to bring in the Bill.
  MR. AYRTONsaid, he should have been glad if the right hon. Gentleman had
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  given the House a little more explanation on the subject, because there were different versions in the newspapers of some observation made by the right hon. Gentleman to a deputation that had waited on him some time since; but the general effect of the reports seemed to imply that in respect of the portion of the Bill of last Session which it was now sought to repeal there had been considerable negligence on the part of the metropolitan Members. There never had been a more unfounded suggestion than that put forward as having been made by the right hon. Gentleman. As the versions of what had occurred while the right hon. Gentleman was receiving the deputation were very various, perhaps an improper use had been made of his name. The Bill it was now sought to amend was brought into the other House early last Session; and on its coming down to that House, he (Mr. Ayrton) suggested that it should be sent for consideration to the Committee then investigating the subject of the Local Government of the Metropolis. The Bill, however, was kept before the House, though nothing was done with it till the 14th of August, when it was read a second time. The next day it was considered in Committee, and on the third day it was passed. If therefore there was anything wrong, it was due entirely to the manner in which it was carried through the House by the Government. With regard to the particular clause referred to, it should be borne in mind that at the time the House went into Committee on the Bill the public had not been allowed the usual opportunity of expressing their opinion respecting the details, and consequently hon. Members had not the usual means of ascertaining which were regarded as objectionable; but he might remind the House that the clause now proposed to be amended was still more objectionable in its original form. It proposed to sweep away all the rights of individuals over open spaces in front of houses in the metropolis. He called the attention of the right hon. Gentleman (Mr. Gathorne Hardy) to the wording of that clause, and the result was that it was put into its present shape. The right hon. Gentleman himself undertook to introduce the necessary Amendments, and of course the House was obliged at that late period of the Session to accept the Bill as it was placed before them—especially as there was but a scanty attendance of Members, and the majority

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  were on the Treasury Bench. Now, he should like to ask the right hon. Gentleman whether he really proposed to amend the objectionable clauses by taking away any rights possessed by individuals over the land in front of their houses—or, in other words, whether the right to use such, property was to be taken from the persons who paid rates and taxes for the maintenance of the roads, and transferred to a class of people whose only claim to the use of such property was that they paid no rates and taxes at all. Before the Bill was brought forward for the second reading the right hon. Gentleman ought to maturely consider what he proposed to do. If the existing clause were unjust to the costermongers and street hawkers, that proposed to be substituted for it might be equally unjust to persons who had land in front of their houses. It would, in his opinion, be impossible for the House to pass a Bill conferring on the police authorities the right of dealing with property of that kind. He trusted it would be found upon examination that the Bill was not of the nature suggested by the remarks of the right hon. Gentleman.
  SIR GEORGE BOWYERsaid, it appeared to him from what the right hon. Gentleman had said, that the Bill proposed to place an unlimited power in the hands of the police for making regulations affecting the trade of persons who sold articles in the streets. He hoped, however, the right hon. Gentleman would re-consider that point, because he (Sir George Bowyer) considered it was too large a power to be vested in the police or any one else, seeing that it affected the very existence of a very large class of people. The police regulations might be quite as injurious to these poor men as the clause to which objection was now made. Unless the Bill contained some limitation, he should certainly feel it his duty to move a clause to render the Commissioners of the Police responsible for what they did, and to prevent their wielding the powers they possessed over the street traders in an arbitrary manner. He wished also to point out that it would be exceedingly objectionable to give to the Commissioners of Police any power in the City of London. The privileges of the City would, he trusted, be treated with due consideration by his right hon. Friend; but if they were not, he should bring the matter under the consideration of the House, unless representatives of the City deemed it their duty to do so.
  MR. ALDERMAN LAWRENCEsaid, it was satisfactory to find that the Home Secretary had taken the earliest opportunity of introducing an amendment of the Act of last Session, with the view of remedying a great injustice which would otherwise be inflicted by the operation of the Act on a number of deserving poor; but he thought that a portion of Clause 6 also required amendment. That clause provided that when spaces between the footway and the carriage-way were by prescription or otherwise used for exposing articles for sale, such spaces should after a certain period be deemed to be a part of the footway unless they were enclosed by barriers. Now, the right hon. Gentleman might not be aware that in various parts of the metropolis so much alarm had been felt in respect of this clause, that since the passing of the Act the spaces intervening between the footway and the road, over which the public had a limited right of way, had been enclosed by rails. This process had been going on because the owners of those spaces of ground feared that they would otherwise be brought under the operation of the Act. This subject ought to be re-considered, and he hoped that the Amendment Bill would not be passed through that House as hurriedly as the original Bill was, but that time and opportunity would be afforded of remedying many defects of the present Act. For instance, the case of the cabdrivers and cab proprietors ought to be taken into consideration. A very heavy penalty was inflicted on them by the Act, which compelled them to provide lamps for their vehicles. There were 7,000 cabs in London. If each four-wheel cab were to be furnished with two lamps, the annual cost would be £7 for each cab; while the total cost to the proprietors was estimated at between £25,000 and £50,000 a year. ["Oh!"] At all events, the cost would be very great, and it would fall upon a class of persons who even now were scarcely able to exist in consequence of the heavy tax imposed upon them; for it could not be too frequently repeated that each cab had to pay a duty of £19 5s. per annum, besides which every cabman had to pay 5s. per annum for his badge. Though, the tax upon omnibuses had been reduced, no attempt had been made to lighten the burden borne by the owners of cabs. A letter had recently appeared in The Times written by Mr. Haddan, the late Superintendent of the Hackney Carriage Depart-

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  ment of the Metropolitan Police, stating that it was impossible for the cabdrivers to earn sufficient to keep themselves unless they obtained from the public sums in excess of the legal fare. This was a most unsatisfactory state of things, and he hoped, under the circumstances, that the right hon. Gentleman would take an early opportunity of repealing the clauses relating to the cab proprietors, and of introducing a measure consolidating all the Acts—six in number—containing 272 clauses relating to hackney carriages in the metropolis. The duty on cabs ought also to be reduced, in order to enable Londoners to obtain a supply of hackney carriages equal in point of comfort and accommodation to those of Cheltenham, Leamington, Birmingham, and various other towns. London was the worst supplied, because Government had taken the matter entirely into its own hands, whereas in the provinces the regulations were made by the municipal authorities. He thought this was a very good opportunity of amending the laws relating to cabs in the metropolis, and he hoped advantage would be taken of it. He hoped this would be a lesson to all future Secretaries of State that the House of Lords was not the proper place to initiate legislation for the traffic and commerce of the metropolis.
  MR. LOCKEsaid, he hoped the present opportunity would not be lost of settling several questions with regard to the street traffic of the metropolis, because it was quite obvious that the cab proprietors and the costermongers were not the only persons dissatisfied with the Act. Great complaints were made on all sides respecting the enactments in the present Act of Parliament; and numbers complained that they had never had an opportunity of stating their views on the subject, or of showing the grievances they were likely to endure under the Act, before a proper tribunal. They objected, and properly, to legislation affecting their interests being based merely on the recommendations of a Select Committee of the House of Lords, and passed into law without having been submitted to a Select Committee of the House of Commons. It was suggested last Session by many Members that the measure should be sent to a Select Committee of that House but their advice was neglected, and the consequence was that the Act was not merely objectionable to the classes referred to, but also to other parties who claimed to be heard before a Com-
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  mittee of the House of Commons. Sir Richard Mayne had not attempted to put the Act in force, because he knew it would be impossible to do so without raising a storm about his ears that would put him in a position that would not be at all enviable. Therefore, the Act had been a dead letter up to that moment; and was that, he asked, a satisfactory state of things? He suggested that the Government should consent that the provisions of the Act should not be enforced, and that another Bill should be brought in and submitted to a Committee of that House; and that not only the alteration suggested by his right hon. Friend should be made, but that a Committee of the House of Commons should have an opportunity of considering what other alterations were necessary in other parts of the Act.
  MR. GATHORNE HARDYsaid, in reference to what had fallen from the hon. and learned Member for the Tower Hamlets, that he was quite willing to bear his share of the blame of passing the Act in its present shape. It was a Bill of the last Government, taken up by the present Government. It was before the House for a considerable time, and at one time he thought there would be no opportunity of passing it. A great many Members were anxious it should pass, and in consequence of their wishes he went on with it, and it ultimately passed that House very much in the shape it came down from the House of Lords. The hon. and learned Member for the Tower Hamlets did not take up the cause of the costermongers, who, in fact, were very probably ignorant of the provisions of the Bill until it was passed. The hon. and learned Member for Southwark wished to refer the whole subject to a Select Committee; but he (Mr. G. Hardy) could only say that if this Bill were so referred, the grievance of the costermongers was not likely to be remedied in the present short Session. It was important that a discretion which did not now exist should be given to the police, and for this reason he had brought in a short Bill to remedy a pressing grievance, leaving other matters to be dealt with by a Committee if the House thought fit to appoint one. As to the statements of the cab proprietors, he was not prepared to assent to them in all respects. They might have grievances, but what they asked for was a consolidation of the law, and it would be hopeless to deal with that now. The question of the cabs was one of considerable difficulty.

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  They complained that there was a great pressure of taxation upon them; but with regard to the lamps, it should be remembered that the Hansom cabs in almost every instance had lamps until, he believed, a law was made to compel them, when they took them all away because they said they objected to compulsory powers. He was told with regard to the four-wheel cabs that it was not necessary that they should carry more lamps than the Hansoms, but that one could be placed in front of the driver on the splash-board, and therefore the large expenditure complained of need not be incurred. He believed that it would be of great advantage to the cab proprietors themselves that their vehicles should have lamps, inasmuch as the cabs might then be seen and hailed from a much greater distance than cabs which had no lamps. The objections of the cab proprietors did not seem to be well supported by the deputation which had waited on him. One proprietor said, "If we do run over any persons we only bruise them a little; we don't kill them as the heavier carriages do;" and that seemed to be the main excuse for not carrying lamps. However, the Bill which he now asked leave to introduce dealt only with a particular grievance. He would lay it on the table and leave the House to deal with it.
  MR. ALDERMAN LUSKobserved, that the streets of the metropolis were said to be disgracefully managed, and were a disgrace to our civilization; when, however, a remedy was attempted objections were at once taken to it. It was clear that a city of 3,000,000 of inhabitants required street regulations. Many of the clauses of the Bill were exceedingly useful, and he hoped that the House would hesitate before altering them.
  Motion agreed to.
  Bill for the amendment of the Metropolitan Streets Act (1867), ordered to be brought in by Mr. Secretary GATHORNE HARDY and Sir JAMES FERGUSSON.
  Bill presented, and read the first time. [Bill 2.]

FENIAN CONVICTS AT MANCHESTER.

  OBSERVATIONS.
  MR. MAGUIRErespectfully begged the attention of the House for a very few minutes to a most important question. To put himself in order he would conclude with a Motion. Unless some steps were taken, we were within a very short time
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  of hearing of a very solemn and a very terrible tragedy, and the question was whether the Government of England would allow that tragedy to be performed in the eyes of the world—whether they would go on, or whether they would pause. Into the merits of the question—the morality of the question he would not enter—were he to do so he might injure the cause of those on whose behalf he had risen to speak. A significant answer, however, had just been given by a Member of the Government. Of the five men who were tried and sentenced to death at Manchester, not only had one received a free pardon, but he had been restored to Her Majesty's service. The others were to stand upon the scaffold, and the rope might have been fastened round their necks by the evidence of some of the very people who swore against the man just taken back into the Queen's service without a stain upon his character. What had been done at Manchester? Five men were tried, convicted, and sentenced to death. Five others were tried, but the evidence on that trial was so riddled and damaged that the prisoners were acquitted. Another batch of prisoners was then arraigned for the same offence; but the legal representatives of the Crown found that the evidence had been so discredited on the trial of the second batch that they would not proceed, and entered a nolle prosequi. Under those circumstances, would it not be well for the Government to pause and consider whether the law of England was such as had been stated by the advocates of these men, or whether it had been correctly laid down by the Judges who tried them? These Judges might be very eminent in their profession, but they were not infallible. Now if, as he understood, a great many eminent men in Westminster Hall agreed in opinion with the counsel for the prisoners, before the Government should do what was irrevocable they ought to have the case solemnly submitted to the adjudication of all the Judges of England. He would say nothing as to the merits of the question, because, in his opinion, the man who should do so would act most indiscreetly; but here the advocates of the condemned men put forward a certain legal proposition. They said that it was the law of England that if a man be arrested without a warrant, or upon an informal warrant, he might resist to the death; and if strangers interfered to rescue him, and one of the captors was killed, the offence

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  was not murder, but manslaughter. That opinion rested on a decision of the twelve Judges in the case of Tooley, tried more than 150 years ago, the decision being arrived at by a majority of seven Judges to five, and it had never since been reversed—on the contrary, there had been, many instances in which that decision had been fortified by the judgment of other Judges. To his own knowledge there were many able and learned men at the Bar who held that this was a question of the greatest gravity, and one which was worthy of having a solemn adjudication pronounced upon it. What did Mr. Justice Blackburn do? When the point was raised, he said he would put it to the jury whether there was a warrant, or whether the warrant was imperfect; but he never did, until the point was raised again on the third trial, when the Attorney General was so conscious of the worthlessness of the evidence which had broken down on the second trial that he entered a nolle prosequi. It was then that the Judge said—
  "Will you allow me to put this point, which was raised on the first issue? Will you allow me to put it to this Jury, which has no issue before it?"
  Now, in the name of all that was just, he would ask the Government not to perpetrate a legal murder. He begged to move the adjournment of the House.
  SIR PATRICK O'BRIEN, in seconding the Motion, said, he was certain there was not a Member of that House who did not recognise the deep solemnity of the occasion and account it one which demanded at the hands of the Government the very gravest deliberation; and it was in that spirit that he ventured to rise and add his humble voice to what had been urged by his hon. Friend, who had alluded to the circumstances of a trial of great moment, decided by Lord Chief Justice Holt a hundred years ago, and which was stated to have a direct bearing on the fate of the unhappy men whose case they were then considering. He (Sir Patrick O'Brien) believed that all the learned gentlemen who defended the prisoners had pledged their professional character to the statement which they had embodied in a paper, which they had addressed to the Judges who tried the case; and that these Judges, sitting, not in open Court, but as it was technically called, in camera, had unfortunately arrived at the conclusion that this grave question was not one to be reserved for future consideration. He
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  believed that the Judges were not in the habit of depending on their individual judgment in important cases, but that, on the contrary, they were in the habit of seeking the assistance of their brother Judges; and he would ask the right hon. Gentleman to state whether this had been done in the present case; and, if so, whether the Judges were unanimously of the opinion that the case ought not to receive a further consideration—for if only one of the Judges entertained a doubt, he thought a case was made out for a solemn re-consideration of the case. If such were the facts, he hoped the public would be informed that full justice would be done in the case. Not only the people of Manchester, of London, and of England, but the people of Europe, and of all civilized countries, were looking with the deepest interest to see what would be the course taken by the Government of a country—which had ever prided itself on its strictly merciful and impartial administration of justice—in connection with these men.
  MR. FAWCETTsaid, that nothing but a sense of the great responsibility which lay upon Members of that House could induce him to say a word on this subject; but he felt that they were on the eve of a very great crisis. He was not going to express any decided opinion on the subject. He fully recognised the difficulty in which the Government were placed; they had a fearful responsibility upon them, and he would be the last person to say a single word which could in the slightest degree tend to increase that difficulty. Without uttering one word of sympathy with Fenianism—for he looked upon it as a foolish, and therefore as a wicked conspiracy—he had no hesitation in saying that if the four men who were now condemned to death should be hanged in Manchester on Saturday morning, that event would send a thrill of horror into the hearts of thousands in this country. Now, he wished to ask the Government whether there were not some grounds which might induce them to exercise the prerogative of mercy? He would not say a word to palliate the offence which these men had committed. If he were to do so, he should commit a mistake as great as if he should apply to it language of unnecessary harshness. But what he felt was this—that, owing to an unfortunate mistake—for it was a grave mistake, and one fruitful in serious consequences—one man who had been convicted and condemned to death had im-

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  mediately afterwards obtained a full pardon, and thus an air of uncertainty was thrown over the trial. That circumstance had produced an impression upon the public mind; and when they considered how much that impression would be deepened if the four men were executed, he thought it would be seen that there were some grounds for the exercise of the prerogative of mercy. There were two elements in the case which undoubtedly, whether rightly or not, would excite popular sympathy on behalf of the criminals. If the man who fired the fatal shot were hung, there were three others who did not fire the fatal shot. There would therefore be a difference, though not a legal one, in the public mind between the case of Allen and that of the three others. He had come up to London for the purpose of asking several hon. Members of that House—he did not wish to conceal it—to sign a memorial to the Home Secretary on behalf of the condemned Fenians. More than one hon. Member of great experience and judgment had told him that they would willingly have signed the memorial, but for the unseemly and disgraceful scene enacted at the Home Office. Now nobody regretted that scene more than he did. It was most unfortunate, and he thought, perhaps, too strong an epithet could not be applied to it; but he implored the Government not to let that scene in the slightest degree affect their determination. Even if they thought there was no ground for the exercise of the prerogative of mercy, let them give an assurance to the country that their decision had not been at all swayed by the unseemly behaviour of fifty men, who, although excited, could not be excused. Let them at least be able to show that they had not been influenced in the most remote degree by the violent language that had been used and the threats that had been uttered in a time of much popular excitement. This was a question involving important considerations of policy, and for his own part he believed a strong Government exhibited its strength and proved its confidence in it by exercising mercy. For 400 years we had endeavoured to show our power in Ireland by exercising rigour, and that rigorous policy had cast a blot upon the reigns of some of our greatest monarchs. Let us on this occasion exercise mercy, and while firm in our policy, let us be determined to do all we could to ameliorate some of the wrongs under which Ireland suffered. Let not
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  the Government be afraid of the reproach that they had given way to a popular cry, for he believed they would really show their power by exercising the sacred prerogative of mercy. He had never felt more strongly in his life than on this subject. Indeed, it had made him quite miserable to think of what was about to be done. He firmly believed that if the Government saw fit to exercise mercy, future generations would regard them as having done perhaps more than any Government had ever done before to win the hearts of the Irish people.
  SIR GEORGE BOWYERsaid, he rose for the purpose of making only one observation, which was that the United Kingdom was the only country in the civilized world where the right of appeal in criminal cases did not exist. This country was the only one in the world where a man condemned to death, or to any other punishment, could not have an appeal to the highest tribunal of the land. In civil cases, where the smallest sums of money were in dispute, a man could, after the verdict of a jury was given against him, carry the case from court to court until he reached the supreme tribunal, no matter whether he had valid grounds for doing so or not; and it was a disgrace to this country that in the case of life and death no such appeal could be even upon legal points raised at the trial, unless leave were given by the Judge who tried the prisoner, and who possibly had formed a strong opinion against him. Let them apply the principle of appeal to all cases. In this one there were four men under sentence of death in whose favour a point of law had been raised. He had the highest possible respect for Mr. Justice Blackburn and Mr. Justice Mellor, who were Judges worthy of the high position they occupied; but all he could say was, that the point of law being raised, there were two opinions on the subject. The counsel for the prisoners were confident that the point of law they had raised would reduce the offence from murder to manslaughter, and therefore thought that the lives of the offenders ought not to be sacrificed. Other lawyers held the same opinion. The Judges differed from them; but still the fact remained that a point of law had been raised in favour of these men, which it was surely desirable should be settled before their death would render it useless to settle it so far as they were concerned. This was a most solemn question, and he certainly

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  thought that the circumstances were quite sufficient to justify Her Majesty's Government in suspending the execution of the men until this point of law was argued and decided, and it was fairly shown that the prisoners had forfeited their lives to the country, which could only be decided by the Judges of the Exchequer Chamber. He did not think that there could be two opinions upon the subject, that, notwithstanding the theory of the law, the right of appeal ought to be admitted in this case. He hoped the Home Secretary and the Attorney General, whom he was glad to see in his place, would be influenced by these considerations.
  MR. SERJEANT GASELEEsaid, that he was not going to follow the hon. Member for Brighton (Mr. Fawcett) in the view he took of the case, differing as he did from almost every sentence that he had uttered, nor was he prepared to take upon himself the responsibility of recommending to the Government to exercise or withhold the exercise of the prerogative of mercy; but the purpose for which he rose was to express his opinion that it was of the utmost importance that in such circumstances as the present the utmost caution and deliberation should be used. He would not presume to address the House on the point of law; but he wished to put it as strongly to the Government as he could, that in this case, where there was the point of law involved in the first trial, it was not until the third trial took place that the Judge left the question about the legality of the warrant to the jury; therefore he did not think that the country would be satisfied until the question had been submitted to the whole of the Judges, and had been decided by them. Any difficulty he previously felt was increased by the publication of the correspondence between Mr. Justice Blackburn and the prisoners' counsel. The learned Judge stated that he had consulted other Judges; but he went on to say that although that judgment had satisfied him that he had come to a right conclusion, the responsibility rested with him and not with them. Therefore he Lad only consulted them extra-judicially. An extra-judicial opinion of this kind, asked for by a Judge who was firm—perhaps too firm—in his opinion was not satisfactory; and he thought the country would not be satisfied until the Judges had given a judicial and deliberate opinion in the case. There were few, he believed, who would extenuate the crime that had
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  been committed; but the greater the crime and the greater the excitement to which it had given rise, the greater was the care that should be exercised. Therefore he ventured to ask that for a few days only the sentence should be respited, until the opinion of the Judges, who were all now in town, was taken. It certainly appeared to him to be a blot upon our judicial system that there should be no right of appeal in criminal cases, and that it should be made to depend upon the Judge whether a point of law raised in a prisoner's favour should be permitted to be brought before a Court of Review or not. He had had some experience in criminal trials, having twice travelled the Circuit for Her Majesty's Judges, and he said unhesitatingly that in a case like this he would not take upon himself the responsibility of deciding on the fate of these prisoners without having the assistance of the Judges. He therefore most respectfully implored his right hon. Friend to suspend the execution of the sentence for a few days, and he believed that if the Judges once decided the point, not a voice would be raised against the Government in the exercise of their discretion as to the fate of these men; but if they were executed merely on the opinion of the two Judges alone who tried them that this point should not be heard in their favour, great dissatisfaction would, he feared, be felt even among men who abhorred Fenianism as much as anybody could.
  SIR COLMAN O'LOGHLENrose to join with other hon. Members in their appeal that the execution of these convicts should be postponed until the question of law raised in their favour was decided by the Court of Criminal Appeal. He must say that he very much regretted that Mr. Justice Blackburn had not thought fit to reserve the point submitted to him; at the same time, he was perfectly aware that it was in his discretion alone to do so. He agreed with the hon. and learned Member for Dundalk (Sir George Bowyer) that it was a serious blot in our judicial system that, while appeals were allowed in the most trivial cases affecting the rights of property, they were not allowed, except in some cases, by consent of the Judge, and, in other cases, with the fiat of the Attorney General. He would not express any opinion whether the point raised was a sound one or not; but everyone must admit that it was a question of the highest gravity, worthy the consideration of the highest tribunal

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  in the land, and if the Judges should decide against it, the unfortunate convicts would suffer their sentence with much greater satisfaction to the public than if they were hurried into eternity without such a decision. The House would remember that in the case of Charlotte Winsor, though the crime of which she had been convicted was a most atrocious one, the late Law Officers of the Crown granted their fiat for a point of law being argued before the Court of Queen's Bench. The case was then allowed to go to a Court of Error, which affirmed the decision, and the public mind was satisfied. He therefore thought that his hon. Friend the Member for Cork (Mr. Maguire) was quite justified by the correspondence which had been published in bringing the matter before the attention of the House. There was no difficulty in dealing with this matter. Within a week or ten days the Judges could be summoned and give their decision upon the point. It was not too late for Mr. Justice Blackburn to reserve the points yet, and no doubt he would do so if the Home Secretary expressed a wish that it should be done. He had addressed himself to the question entirely in its legal aspect, and he did not think, as a lawyer, he should have been performing his duty if he had not expressed his sentiments on this occasion.
  MR. BAGWELLtrusted that the Government would listen with attention to the representations now made to them. Undoubtedly, these men had been found guilty of the offence of which they were charged, nor could he deny the existence of a dangerous conspiracy; but as the legal point had been raised, in what a position would the two learned Judges who tried the case and Her Majesty's Government be, if these men should be executed, and it should turn out afterwards that the point raised did change the character of the offence, and how greatly it would aggravate the disaffection in Ireland. He was sorry that it had been necessary to bring this question before the House. He was quite sure that the Government were anxious to show mercy to these men, if it could be shown consistently with safety to the State. The people of England had not suffered anything like so much from Fenianism as the loyal portion of the Irish people had, and no one was more anxious than he to see it put down; but he implored the Government not to be steeled by popular clamour, being convinced that
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  if it was considered expedient that these convicts should undergo the full sentence of the law, the people would be much better satisfied that execution should be delayed until after the Judges had given a judicial opinion upon the point which had been raised. If it were decided by the Judges that the sentence must be legally carried out, it would then be time for those who had a feeling against capital punishment in such a case to come forward and urge the Government to spare the lives of these men.
  MR. REARDENthought that the Government would do a wise act in referring this question to the Judges. It could do no harm, the minds of the people of England would be set at rest by their decision, and possibly a miscarriage of justice might be prevented.
  MR. GATHORNE HARDY: I will not conceal from the House the painful position in which this discussion necessarily places both myself and also to a certain extent the Government with which I am connected. But, as I understand it, the question which the hon. Gentleman opposite (Mr. Maguire) wishes to raise is not one as to the merits of the case at all, but as to what he calls the legal question. That is to say—I must beg the hon. Gentleman's pardon for saying it—he wishes me to take an absolutely illegal course. In a case of the utmost gravity, as I admit it to be, and which has therefore been considered with the utmost gravity and care by the Judges who tried it, he wishes me to show this mark of contempt for them, after they have taken upon themselves the most solemn and painful responsibility, which they might have avoided by throwing over their legal decision on the points raised before them, and by referring them to some tribunal which I have neither the power nor the right to summon. Mr. Justice Blackburn, let me say, when the point was raised before him and his brother Judge, thought so little of it at the time that he did not think it even right to say that he would consult any other person about it, or take any other step in reference to it, but decide it at once. He thought there was nothing in the point to cause any difference in the verdict that the jury ought to give. But when he came to London he did consult all the Judges. I believe I am in a position to say that from no single Judge did he receive an adverse opinion to that which he and Mr. Justice Mellor had formed. Mr. Justice Blackburn

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  needs no praise of mine but this I will say, that a man of more acute intellect, or more fit to come to a right decision on a point of law than Mr. Justice Blackburn does not exist. And when I know the pains he has taken, and the labour he has given, himself in order that he might arrive at a right conclusion as well upon the facts of the case as upon the points of law, I should consider I ill discharged the duty that I have to perform if, after the Judges have tried the case and decided upon a point of law, I were to take a step such as has never been taken under such circumstances before, and call upon the Judges to review the judgment of those who are solely responsible for what they have done, and who have taken upon themselves—I will not say boldly, but conscientiously—that responsibility because they believed it to be their duty. That responsibility has been exercised, I believe, justly as well as conscientiously, and it will never be my duty to interfere with the execution on that ground which the hon. Gentleman has mentioned.
  MR. MONTAGU CHAMBERSsaid, that this was a solemn and important subject, and he wished to correct an error into which the right hon. Gentleman, as a public functionary, had fallen. The right hon. Gentleman would not commit an illegal act if he advised Her Majesty to exercise her Prerogative, and ask her Judges to consider whether there was any legal objection to this conviction. He went deeper than the Act of Parliament; he stood upon the Prerogative of the Crown. Although the right hon. Gentleman said there was no precedent for such an interference, yet precedent after precedent could be quoted anterior to the Act of Parliament which was passed a few years since; for whenever cases occurred which deserved to be argued before the Judges, Her Majesty graciously called them together to consult upon those cases. It was the Prerogative of the Crown to call in the Judges to advise Her Majesty when she was asked to exercise the Prerogative, not of mercy, but of pardon, on the ground that there had been an illegal conviction. He must admit that he had not studied this question. It might be that Mr. Justice Blackburn and Mr. Justice Mellor were right; but it might also be that they were wrong in their ruling upon the question of law raised before them. But as regarded the extra-judicial reference that had been made
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  to the other Judges, he desired to point out that a private reference was one thing and a public argument conducted by counsel on both sides quite another, and it might be that the Judges who had given their private judgment if they heard the arguments pro and con might say that they had been rather too hasty, and they might decide differently if they heard those arguments. The question now was, whether it was right for the Secretary of State to submit to the gracious consideration of Her Majesty whether her Judges should not be called together to say whether there had or had not been a failure of justice so far as the legal point of objection was concerned. The lawyers in that House confined themselves to the legal objection; but when the counsel for these prisoners said they believed they could adduce arguments to show that the conviction was a wrong one, it would be wise, generous, and right for the Secretary of State to advise the Crown to have it thoroughly argued. He had no doubt about the policy and propriety of such a course. It might be that there was little or nothing in the objection taken; but the grand object of the administration of justice was to give public satisfaction, and the only answer to the appeal seemed to be, "Let us hurry on the execution." [Cries of "No!"] It must amount to that. The great object was to have every one satisfied that this was not an illegal or improper conviction. But was there no ground for the public uneasiness? He wished to direct the attention of the Attorney General to what took place on one of the subsequent trials. He understood that an objection was taken to the legality of the conviction for murder on the ground that there was no warrant in the hands of the officer who had the rescued prisoners in custody, and that the question whether there was a warrant or not, or whether it was a legal warrant or not, was not submitted as a matter of fact to the first jury. But he heard that afterwards, on the third trial, with an entirely new jury—the question having been thus raised on the first trial—the learned Judge proposed that the matter of fact as to the existence of the warrant and its being in the possession of the officer should be put to the third jury. He did not mean to say anything uncivil or unkind of the learned Judge; but the circumstance to which he had referred showed that Judges might make mistakes; and if they could make

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  mistakes in a matter of that description, was it not possible that there might have been an error of judgment committed with reference to the other questions raised to be submitted to the Judges? Moreover, the very fact mentioned by the Home Secretary that Mr. Justice Blackburn had given his most anxious and careful attention to investigating whether there was anything in the points raised would, he thought, convince ordinary minds that they were worthy of being submitted to the other Judges. That circumstance might lead very fairly to the inference that the simple course of proceeding adopted in former times, and followed for centuries—namely, that of Her Majesty calling upon her Judges to hear counsel argue points of law raised in favour of her subjects who might be exposed to the operation of the criminal law—ought to be resorted to in this instance. From his own reading and experience he could state that before the Act passed, which gave a sort of right of appeal, the course adopted by the Judges was this:—Upon counsel raising an objection, the Judge would say, "I reserve that for the consideration of the twelve Judges." But that meant not simply that he had the power of reserving it, but that he submitted that Her Majesty, having reference to her gracious regard for the lives of her subjects, should call upon the twelve Judges to decide whether or no, according to the law of the land, there had been a right conviction. It was therefore to be hoped that the Secretary of State would not feel himself to be in the critical predicament which he supposed; because the responsibility was not upon the right hon. Gentleman. That was a total mistake. All that was suggested was that he should solicit Her Majesty to ask the advice of her Judges, after hearing counsel on both sides, as to whether there had been a legal or an illegal conviction for murder. In order to give entire satisfaction to the public it was desirable that the questions which had been raised and agitated in that case should be submitted to the careful consideration of the Judges, so that they might hear them fully and fairly argued upon both sides—for he apprehended that hitherto they had heard but one side—namely, the arguments of Mr. Justice Blackburn and Mr. Justice Mellor.
  MR. MAGUIREsaid, he had been prepared, on the authority of his hon. and learned Friend the Member for Dundalk (Sir George Bowyer), to mention a prece-
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  dent; but he was so satisfied with what the hon. and learned Gentleman (Mr. M. Chambers) had just stated, that he did not think that necessary, and he would not then press his Motion.
  On Question, "That the Motion be withdrawn,"
  MR. GLADSTONE: I was in the expectation, Sir, after so much had been said on a question of such delicacy and importance, that we should have had the assistance which I think is usually given to the House by the Attorney General. Perhaps that hon. and learned Gentleman will have the kindness to state to us distinctly his view of the law on this matter. I certainly was waiting for that explanation, and I yet trust that we shall be favoured with it. I will only now express with very great deference and humility, and certainly with reservation and due submission to whatever may be told us upon information coming from the highest quarters, the view which I am myself disposed to take, as far as I can understand the matter. I was not able altogether to follow the argument of my hon. and learned Friend who spoke last. A verbal question may arise upon the precise expression used by the right hon. Gentleman (the Home Secretary) when he said that he was invited to do an illegal act. I can quite understand that an argument may be made that there is no statute prohibiting the right hon. Gentleman from taking the course which has been pointed out by my hon. and learned Friend, and that consequently he would not be offending against the statute or doing an illegal act. Whether that be so or not, I am unable to say; but, as I gather the state of the case, it is something like this:—The practice in previous periods, as has been lucidly shown by my hon. and learned Friend who spoke last (Mr. Montagu Chambers), was that when there was a suspicion that a conviction come to was not a good and valid conviction, the Crown, as being generally responsible for the administration of justice, was in the habit from time to time of referring to the Judges for their opinion on the point. Now, if nothing further had taken place, I could understand that the appeal made to the right hon. Gentleman and the Government would be a very strong one. But is it not the fact that in recent times we have passed a statute which, in lieu of leaving this matter to the general discretion of the Crown,

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  has distinctly pointed out and provided the means of bringing it to issue? That is to say, it is now provided that, the point being raised, it shall be considered by the Judges who tried the case; that the judgment of those Judges shall be final; that they have the power of reserving the point if they think fit, but if they do not reserve it for the Court above, their judgment is final. Consequently, I am bound to say it appears to me that the verbal question which may be raised upon the expression used by the Secretary of State would be a verbal question only, and that the right hon. Gentleman is entitled, if that be the true state of the facts, to say that the statute having provided a distinct and specific means of carrying to issue those questions which were formerly dealt with by Prerogative, it is no longer in the spirit of the statute—it is no longer acting in that spirit in which all the proceedings of the Executive ought to be conducted—if the Crown, overlooking, or at any rate passing by, the provisions of the statute, were now to fall back upon that other mode of procedure of which it is quite evident that the statute was intended to get rid. At all events, I think it would certainly be requisite for those who take the responsibility of pressing the Government in this matter, to show that since the statute passed the old and former method of proceeding has nevertheless still continued in use. If it has not so continued in use, it seems to me—I confess upon what may be an insufficient and unauthoritative view of the case—that there would be a disregard of the spirit and intention of the Legislature in now falling back upon the former method. I hope, Sir, we shall have the advantage of hearing from the Attorney General the precise condition of the law on a matter of this great delicacy and importance. The House always, justly, I think, looks for that assistance, and is always disposed to attach the greatest weight to the declarations of the Law Officers of the Crown on questions of this difficulty with respect to which we stand in need of information.
  THE ATTORNEY GENERAL: Sir, I believe that the right hon. Gentleman who has just sat down has stated with perfect accuracy that there was a period, before the recent Statute passed, when the Crown was in the habit of consulting the Judges upon points of law raised before one of the Judges, who gave advice upon written statements sent to each of
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  those learned Judges, on which they might express their opinions. And I think I am right in saying that in those cases it was the universal practice of the Judges to give their opinions, not upon the arguments of counsel, but upon private consultation among themselves with reference to the facts and circumstances brought before them. But since then, as is well known, a power has been given to a Judge, if he thinks that a question raised before him is worthy of consideration, to have that question reserved for the solemn argument and decision of the Judges in a Court of Law. Now, in this particular case—although I will avoid, as far as I possibly can, saying one word about the facts connected with the Fenians—the question that was raised at the trial was argued, and at considerable length—not, as generally happens, in a criminal court, before one Judge only, but before two Judges, who gave it their consideration, and made up their minds, according to the view which they then took, that there was nothing in the objection that was raised. But, on the application of the learned counsel for the prisoners, Mr. Justice Blackburn, the presiding Judge, said that he would re-consider the question; and if, upon further consideration, he should think there was anything at all in the objection, he would certainly reserve it for the learned Judges in the Court above. Since then it is well known that Mr. Justice Blackburn, having had a consultation with Mr. Justice Mellor, and also, as we learn, having consulted the other learned Judges, has come to the conclusion that it would not be right for him to suggest that there is any question of difficulty which ought to be reserved for the consideration of the learned Judges. Acting, then, as I am sure the House will feel that he does act, under a sense of the responsibility which attaches to him as a Judge, in expressing his opinion that there is nothing in the point reserved, and not acting on the mere responsibility of a counsel who says he can raise an ingenious argument upon it, Mr. Justice Blackburn has determined that, according to his judgment, here is not in this case a legal question which ought to be reserved, and therefore he has declined to suggest that it should be sent before the Judges in a Court of Law. So far as I know, since the responsibility has thus been thrown on the Judges of deciding whether a point should or should not be

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  reserved, the old system, to which my hon. and learned Friend opposite has referred, has been practically abolished; and taking into consideration the solemn sense of responsibility under which the learned Judges who presided on the Special Commission acted, in coming to the conclusion that there was no question which they deemed it to be their duty to reserve for argument, I think we ought to receive the determination at which they have arrived as being the proper one under the circumstances of the case.
  Motion, by leave, withdrawn.

  LORDS COMMISSIONERS' SPEECH. HER MAJESTY'S ANSWER TO THE ADDRESS.
  THE COMPTROLLER OF THE HOUSEHOLD (Viscount ROYSTON)reported Her Majesty's Answer to the Address, as follows:—
  "Your loyal and dutiful Address has afforded Me much satisfaction
  "I rely on your cordial co-operation in giving effect to the measures, which will be submitted to you, for the purpose of upholding the honour of My Grown and promoting the happiness and prosperity of My people."

  PRINTING.
  Select Committee appointed, "to assist Mr. Speaker in all matters which relate to the Printing executed by Order of this House, and for the purpose of selecting and arranging for Printing, Returns and Papers presented in pursuance of Motions made by Members of this House:"—Mr. BONHAM-CARTER, Sir JOHN PAKINGTON, Mr. WALPOLE, Mr. HENLEY, Mr. CARDWELL, Mr. GASKELL, Sir STAFFORD NORTHCOTE, The O'CONOR DON, Mr. HASTINGS RUSSELL, Mr. CHILDERS, and Mr. HUNT:—Three to be the quorum.
  House adjourned at a quarter after Six o'clock.

HER MAJESTY'S ANSWER TO THE ADDRESS.
HER MAJESTY'SAnswer to the Address reported as follows:—
"My Lords,
"I THANK you for your loyal and dutiful Address.
"I AM confident that I shall receive your cordial Assistance and Support in all Measures which I may consider calculated to maintain the Honour of My Crown, and to promote the Happiness and Prosperity of My People."
House adjourned at a quarter past Five o'clock, till To-morrow, a quarter before Five o'clock.