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L O R D B R O U G H A M ’S SPEECHES O N T H E ADMINISTRATION OF JUSTICE IN IRELAND, W IT H A P R E F A C E .

L O R D B R O U G H A M ’S SPEECHES H " Sr O N T H E ADMINISTRATION OP JUSTICE IN IRELAND.

WI TH A P R E F A C E .

L O N D O N : R I D G W A Y , P I C C A D I L L Y M DCCCXXXIX.

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■ ■ ' v il r - /JfirTW’MlitllliJ ■ P R E F A C E T h e violent attacks and more than usual mis­ representations made by slanderous, and proba­ bly venal, writers of the Governm ent upon Lord B rougham ’s conduct in bringing forward the Irish Administration of Justice for the consideration of P arliam ent, have naturally given rise to the sepa­ rate publication of the following Speeches.
Those who read them will ju d g e whether they are filled with violence, bitterness, personal animosity, factious scurrility, and a num ber of other things ascribed to them by persons, who most probably never heard a word of them — very possibly never read any report But a few particulars may be stated of them .
usefully enough for the purpose of affording an additional proof th at the people of this country are very well advised in no longer tak in g their opinions from the anonymous writers of newspapers, gene­ rally engaged, sometimes hired, by one of the con­ tending parties to blacken the other, and who have long been in the practice of having their hand B against every public man, and but few hands held up for tliem even among those who amuse them­ selves by reading their handiwork.
T hat any kind of personal feelings or interested views should by possibility dictate Lord Brougham’s conduct on this occasion, is quite as absurd as the same charge, or rather insinuation, always flung out against him since the time when (Nov. 1837) the declaration of the Government against Reform, followed immediately by their unconstitutional measures and refusal of common justice towards Canada, drove him into a reluctant and long- deferred opposition.
No one who holds this very silly, and still more false, language can answer the question so often put to them—W hy Lord Brougham supported the Ministers during the whole session of 1835, acted in concert with them during the year 1836, and supported them on all but the Canada question in 1837 ?
In 1836 he even re­ mained in the country at the express desire ot Lord Melbourne, who said that if he came and opposed two or three of their measures, which he conscientiously disapproved, it would overthrow the Government.

This he stated in 1838 before Lord Melbourne, to whom he appealed for the truth of his assertion in the face of Parliament and if he had any personal the country.
grounds of opposition, these existed during the three first years of the Government formed in April, 1835, and could never have been created Surely, iii ' fain they were tak en place ?

the M inisters, since.

T h at he had ample personal grounds, who doubts ?

Not certainly the M inisters, who never pre­ tend to have the shadow of a claim upon him , th ou g h they suffer th eir adherents to argue as if Lord B rougham had deserted them , and was bound to return th an k s for th eir ingratitude.
B u t he did, till late in 1837, re tu rn good for evil.

W h a t has produced the change?

Say rather, what change has since The Government has changed its policy.

W h en the K ing and the C ourt were against to court the people by affecting a more reform ing policy th an th ey really approved.

T he m om ent the Q ueen and the C o u rt were delivered over to them , bound hand and foot, they abandoned all th eir famous pretences of the kind, and m ade declaration of Finality.
B u t this proved very dis­ tasteful to th e country, w hich had been ta u g h t to fancy th a t Lord M elbourne w anted m uch to g ra n t fu rth er im provem ents, only the C o u rt would not let him.

T he c o u n t y now found that, th e C ourt being for him, he was quite satisfied ; and having no fu rth er occasion for the country, pulled down the Reform colours, and hoisted the Conservative u n d e r the Royal stan d ard .
Be it observed th a t Lord B ro u g h am has never once blam ed Lord M el­ bourne for this.

W h y ?

Because, in d ep en d en t of personal considerations, Lord M elbourne never pretended to be m u ch of a Reform er ; nay, he had often passed as an enem y of Reform.

T h ere b 2 iv o 7 were others, over whose conduct he well might sorrow, though he should avoid to cast blame.
But the ministerial organs of both the press and the hustings— all their papers, all their spouters— took every occasion to deceive the people.

One said that Lord John Russell’s declaration was misunder­ stood :— he repeated it with aggravations the next day.

Another said, it is Lord John Russell, and not the Cabinet: the Cabinet avowed it was theirs to a m an; and indeed Lord John was and is after all, the very stoutest reformer among them.
A third said, they don t mean what they say ; wait and see their measures.

— No measures came ; men were weary of hoping, though the deceivers were never tired of their base trade ; and discon­ tent began to spread through the ministerial ranks.
The Bedchamber quarrel brought the Ministers they had back not even the shadow of a constitutional right to hold it; and the regular W higs now were content to be in place without the confidence of any but the Court, and that bestowed on the avowed ground of a mere Back-stairs movement— in place, too, stript of all power, either in Parliam ent or in the country.

Forthwith came a strain of adulation,— and the trumpet was once more sounded to rouse the hopes, the sinking hopes, of the Liberal party.
It would show human nature in its very basest form to collect the falsehoods with which the newspapers in town and country now teemed, and the speeches to office, after confessing that of G overnm ent supporters abounded, as to the new and reform ing policy intended to be pursued.
Falsehoods they m ust have been ; for not one of the M inisters even $o m uch as gave the shadow of an authority for such reports ; and accordingly no change w hatever was m ade in the policy, the a n ti­ reform policy, of the G overnm ent.
T h e organs of m isrepresentation, thus foiled in th eir attem pts to propagate delusion am ong the people, now turned th eir attacks upon those who still adhered to the Reform principles which th eir patrons, the Ministers, had abandoned ; and Lord B rougham of course cam e in for his very full share of the assault, as he had been am ong the greatest of those most u n p a r­ donable of all offenders,— the men who persisted in clin g in g to the principles which the M inisters had deserted.
I t was a new feature, however, and a most u n ­ expected one in the aspect which the M inistry now presented, th a t the W h ig , or C onstitutional or P o p u ­ la r P a rty stood upon the worst g ro u n d ever occu­ pied by the Tories, whom th e ir Liberal adversaries never assailed m ore bitterly, th a n for th eir dispo­ sition to stand upon C o u rt favour, and parade the wishes and feelings of the Sovereign as a protec­ tion for his servants, against th e w rath of P a r lia ­ m e n t and th e People.
T h e re was 110 one article of th e ir political creed to w hich W h ig s were, up to this period of time, m ore religiously attached, no ;e in which th e ir faith vi more widely differed from that of the Tories, than this, of the use to be made of the K ing’s name, the K ing’s favour, and the K ing’s influence.

“ The good old K ing,” was the Tory rallying cry for “ Don’t disturb the many long years of misrule.
good old King’s repose.” “ Respect his Majesty’s scruples.” “ Don’t force his Majesty’sconscience,”— was the comparatively decent appeal which that great and consistent party made to the country as often as a measure of toleration was to be opposed.

“ The Ministers are the King’s choice.” “ Don’t deprive your good old King of his favourite ser­ vants,” was the constant set-off against all failures, all proofs of incapacity, all loss of public confidence.
But never was there indignation more loud, never scorn more bitter, than were exhibited in the treat­ ment which such appeals constantly met with from It would be hard to say whether Mr. the W higs.
Fox, Lord Howick (now Lord Grey), Mr. W h it­ bread, Mr. Tierney, Lord Holland, or Mr. Brougham (now Lord Brougham), poured forth the most fierce invectives against these topics and this policy of the Tories— in whom, nevertheless, they were to­ lerably consistent with their avowed, principles— just as theystood in wide and impudent and disgust­ ing repugnance to every article of the W hig faith.
Let a single speech of Lord Grey in 1807 be given, as a sample of the sort of things which W higs are now called upon to retract— now that this W hig party, for mere love of place with­ out power, and profit without credit, have deemed it becoming their position in the country and worthy of former recollections, to stand before th a t country — without blushing at those recollections to stand — upon a B edcham ber difference, and hold their offices in the teeth of P arliam en t and the country, relying for all th eir support upon th e favour of “ the good y o u n g Q u e e n ;5' and fatiguing th e weary country, rousing the flagging party, with cries of “ S tan d by your Sovereign.” — “ D o n ’t let h er bedcham ber women be ch an g ed .” W h a t portion of this speech, about to be cited, except perhaps the last m em ber of th e enum eration, is in ap p li­ cable to the present m om ent !
B ut w hat portion of it could a supporter of the W h ig M inistry read without sh u dd erin g at the present position of his party ?

“ W h ile I possess th e power of speech ,” said Lord Howick (G rey), 23 Ju n e, 1807> “ I m ust ever protest against any th in g so fatal as in tro d u c­ ing the M o n arch ’s nam e into discussion.

I f such a practice is perm itted, farewell to th e freedom ot deliberation ; b u t farewell also to the personal se* cu rity of the M o n arch himself.
A rra y in g h im as personally opposed to th e W h ig p a rty , and callin g on the co u n try to decide betw een th em , endangers th e K in g ’s personal security.
If I am an enem y of an ad m in istratio n engen d ered in court in trig u e — if I am an enem y of an ad m inistratio n composed of men differing from one a n o th er upon the most viii important questions—if I am an enemy of an ad­ ministration which does not possess the confidence of the country—if I am an enemy of an adm inis­ tration, of the first man of whom I will say nothing — it is because I am convinced that such an adm i­ nistration is pregnant with the greatest dangers to the King and to the Constitution.” Lord Brougham, a few years later, after enume­ rating the acts of misgovernment chargeable upon the Tories, above all, their mismanagement of the war, and their Walcheren expedition, says— “ After all these confessions, their (Tories) only excuse, the only attempt they make to regain the confidence of the people, is to tell us “ that the King has reigned fifty years.” They have ruined our allies ; they have failed in every plan ; they have brought us through slaughter and danger, wedded with misery, and weighed down with almost in­ tolerable burthens, to the very brink of destruc­ tion.” “ But the King is very old,” and “ he has reigned above half a century.” Such are the words which Lord Grey and Lord Brougham are impudently expected impudently to eat up for the sake of supporting a set of Whigs, the remnant of the party, who, having separated themselves from their fast and faithful friends, joined some of their bitterest enemies, and cast oft' their oftentimes avowed principles, are following the very worst of the bad practices of their adver­ saries, and erecting the standard of mere office ix upon the sole ground of R oyal favour, in obsequious subserviency to the Court, and in open defiance of I t is a pitch of im pudence, yet more the country.
ex trav ag an t and astonishing, to charge men with ab an d o ning their party, who have only refused to be g u ilty of the gross apostacy which has been ex ­ acted from all adherents to the W h ig standard !

T h e same agents of th e G overnm ent have, on the same g ro u n d , charged those who refused to sanc­ tion Lord N o rm an b y ’s Irish A dm inistration, espe­ cially his use of the jud icial powers vested in the E xecutive G overnm ent, with factious and personal motives.
I f any th in g of a personal kind had been felt or acted upon, the evidence afforded free scope to indulge in a strain of re m a rk very different from th a t which will be found in the following speeches.

Som e topics are om itted, and some heads of charge are entirely passed from, w hich an enem y m ig h t The have really dwelt upon with satisfaction.

em ploym ent, by the Crown, of counsel to defend is not once m urderers prosecuted by the C row n, alluded to.
T he reception of persons at the Castle, after official representations m ade of speeches ex ­ themselves citing to acts of bloodshed— speeches gross infractions of the law— is not even hinted at.

T h e tone and tem per of all th e observations is as utterly free from all personal rancour, or disrespect, imagined-— or even unkindness, as can well be and the whole blam e im puted is excess of am iable feelings— and a casual indiscretion.
0 X Whence then, it may be asked, all the fierce­ ness of the very injudicious advocates, who have undertaken to repel attacks so measured and so abstinent?

From this, that the Irish A dm inistra­ tion had hitherto been the only ground whereon the Government conceived it had any thing like a firm footing—and the Irish successes were held up as a perpetual set-off against the constant failures in England.
When, therefore, this only and favourite spot of ground was invaded, and in ­ vaded by the force always most formidable in E n g ­ lish political warfare— the supporters of the Law marching under the standard of Justice, and whose rallying cry is the preservation of Judicial P u rity — no wonder that great uneasiness was felt at the attack, and ill-concealed anxiety betrayed during the whole of the operation, and a bitter mortifica­ tion shewn at its trium phant success.
The defence was feeble beyond all former example ; but the spirit of acrimony which had evaporated in the conflict without stimulating to a blow, was concen­ trated afterwards, and exhausted in petty efforts to harass the victorious party, instead of administering to the vanquished the consolation of revenge.

It is necessary to note two things for the sake of edification in matters political— and as being really curiosities of a rare description, and of some relish to lovers of new and strange sights.
Lord Brougham was not at all answered, nor even attacked, in Parliament, except upon one ground ; and this wholly unprecedented.

He had once, it seems, praised Lord N orm anby ; and Lord M el­ bourne, with m uch sarcastic contem pt for the praise so bestowed, if not for its object, cited a passage from a work published u n d e r Lord B ro u g h am ’s sanction, nam ely, his Speeches.
H e m ig h t have found m uch u n retracted praise of Lord N o rm an b y ’s Jam aica adm inistration ; nay, not a little even in the Irish debate of A pril last.
O ne of these speeches was accom panied by a note, which, after giving m uch w ell-earned com m endation to Lords W ellesley and A nglesey for their wise and liberal conduct towards th e Catholics, eulogi ses Lord N orm an by for follow­ in g in th e ir footsteps, and bestows a panegyric in passing upon his private and literary character, a pan egyric w hich excited Lord M elb o u rn e’s great m errim en t, w hether ju stly or not, could be no fault of its author.
P erh ap s of all ridiculous subjects of attack, this was th e most ludicrous.

T h e pas­ sage, alth o u g h it speaks of hold in g even th e balance betw een the two religions, plainly m eans and indeed in term s says, th a t this trim m in g process consisted in g iv in g all the favours to the C atholics which the law allowed ; an d th a t Lord B rougham , or any one else, has ever since cast blam e on Lord N o rm an b y for not doing so, or could have cast such blam e, is quite a new view of the case.
B u t even if it were as tru e as it is false th a t h e had ever stated an opinion in favour of Lord N o rm a n b y ’s whole Irish adm inistration in M ay, 1838, how could he p red ict w hat came out in x i i committee, during forty-eight days examination of witnesses, in May and June, 1839?

Did he in 1838 know— could he believe—the things which only came out when the Lord Chief Justice was examined this year?

Was G ahan’s case known?

Was Sly’s ?

W as the treatment of the Chief Justice?


Was the reference of cases to attornies?

Was the delegation of pardoning to turnkeys?

Were the details of wholesale gaol deliveries ever dreamt of before 1839?
Assuredly public men out of office are placed in a somewhat strange position when they are called upon to pass judgm ent upon public men in office, if the moment any praise is bestowed by the former upon one portion of the conduct pursued by the latter, a perpetual estoppel is created, and no change of conduct, no new facts brought to light, are ever to justify a change of opinion or of in tone.
But happy above all things are men office if such a canon of criticism is adopted; for they have only to do some one thing deserving commendation, to be secure against censure for ever after.

One matter, however, is quite clear.


W ho­ ever hereafter shall utter a word in approbation of Lord Normanby, does it at his peril ; for once the irrevocable word flies forth, he must ever after hold his peace what conduct soever the Noble Marquis may pursue, upon pain of being assailed by himself and his friends as inconsistent, and malignant, and factious, and false.
But another thing may also be safely predicted ; no such apprehension will X l l l ever deter Lord B rougham from w arm ly praising his former friend, as often as he shall honestly think th a t friend deserves it.

to m ake a speech, B ut then it is said th a t Lord Brougham is ready enough to com plain of the ill adm inistration of justice in Ireland now— he who never, while the Tories were m isgoverning th a t ill-fated country, this score.

opened his m outh against them on Indeed !


T hen if he never opened his mouth, th ree hours how came he long, 23rd Ju n e, 1823, so audibly th a t it is fully reported, with a long reply to S ir R obert Peel, and is to be found in the D ebates— is contained in th e publication cited by Lord M elbourne— nay, is to which Lord M elbourne read in order to laugh at it ?
Look at the M inute-books of the two H ouses— th a t of the C om m ons for Ju n e, 1823, and of the Lords for Ju ly , in both, 1 839; and the identical notice stands given by the same identical individual, for a motion on the same identical subject, “ T h e adm inistration of ju stice in Ireland !” T h e difference is th a t the W h igs all voted with Lord B ro u g h a m ’s motion in 1823, and all voted and all bellowed against this motion in 1839, when th e case was ten thousand the very identical speech, a note times stronger.
N or is this the only gross and m ost scandalous falsehood circulated by the conductors of the M inis­ terial press.

T h ey have ch arg ed Lord B rougham T hey with volunteering needlessly his motion.
XIV have, in order to support this silly charge, sup pressed all mention of the fact, twice over stated by him, that he never had thought of making any motion thiá* session, and was, on the contrary, against such a course being pursued, until the ministerial defenders of Lord Normanby in the Committee took such a course as prevented the pos­ sibility of a report being made, containing such an abstract of the mass of evidence as would enable the House and the country to read and understand it.
Then it was that he said he should feel obliged to undertake the task of making that portion of it known to the House, which alone he had deemed worthy of general attention, and to obtain which portion had been his only ground of supporting the motion for a Committee.

But other tricks to cover other falsehoods, and to excite astonishment by their audacity, remain to be mentioned.

The whole proceeding against Lord Normanby was to be resented as merely It was stated that not one person in the factious.
Lords had blamed his Lordship’s conduct except enemies to the Government, and personal or poli­ tical adversaries of them and Lord Normanbv.

But Lord Hatherton and the Duke of Richmond belong not to this class.

W hat then was to be done?

Both of these Noble Lords had joined in strong disapproval of the only part of Lord Normanby’s conduct which Lord Brougham’s motion seriously assailed.
The one, Lord Hatherton, was the Noble •/ X V th a t M arquis’s avowed and very able defender, both in the C om m ittee and in the House.

No m ention therefore was m ade of his having, when he came to the im p o rtan t subject of the gaol-deliveries, d e­ clared th a t for this there could be no defence, and th a t he could not “ com plim ent away his conscien­ tious conviction,” on this head, to gratify his noble friend.
T he D uke of R ichm ond even voted with Lord B rougham , he who is know n almost always to support the G overnm ent, and never to leave them w hen he can help it.

N ay, the very n ig h t after tru ly noble and honourable th e debate, person, in solemn and impressive term s, declared th at, a ctin g as a ju ry m a n upon the charges against his Noble Friend, Lord N orm anby, he was com ­ pelled to condem n him for this im p o rtan t p a rt of the G overnm ent his adm inistration.
A nd yet w riters say, none b u t th e factious and the personal are found to blame the M arquis !

Nay, some of th e G ov ern m en t papers had actually th e effrontery to cut out of th e ir report of the Noble D u k e ’s speech th e above m ost rem arkable p a rt of it, for th e m anifest purpose of en abling them , in the other parts of the same publication, to propagate the falsehood th a t no friend of the G overnm ent had tak en p a rt ag ain st Lord N orm anby!
T his is tru ly and happily a th in g u n h e ard of in the history of p a rty m isrepresentation.

B u t it r e ­ m ains to add an o th er sin g u lar feature of the contro­ versy.
C an th ere be n a m e d any one person in any XVI one station, connected with the Whig party, by any one tie, however close, filling anv one office with or under them, or even filled with hope of being promoted by them, who has ever yet in private expressed any approval of the Gaol D e ­ liveries, and the Treatm ent of the Judges ?

Nay, has not every person living blamed Lord N orman by for these transactions, although some doubtless may have expressed their censure in far gentler terms than others?
W hy, the Noble Marquis hardly de­ fended this course himself—certainly his colleague and leader, Lord Melbourne, defended it not.

A strange scene, no doubt, was witnessed when the Noble Viscount rose to speak.

He had not read the evidence, therefore he knew nothing at all of the matter from the evidence, and could not tell whether his friend and colleague were guilty or not.

It Indeed !

Then why had he not read the case ?

took two hours to read— no more.


Was it chance, or was it design that kept him from the perusal ?

Had he picked up nothing of it from other quarters ?

Was he really and truly so ignorant as to be unable to tell that the act of reading might be attended with a risk of condemning?

In a word-, was not his igno­ rance voluntary— wilful ?
This he left in no kind of doubt, for he never dream t of asking time to read by moving an adjournment, which must as a matter of course have been granted, had he de­ manded it.
On the contrary, he moved the pre­ vious question,— the meaning of which is known to X V I I be, “ The motion cannot be negatived, for it con­ tains nothing th a t is not tru e — bu t we object to its being p u t as needless or as inconvenient.” N eed­ less, no one ever pretended th a t it was,— inconve­ n ien t and excessively inconvenient every one felt it to be— for the G overnm ent.

A fter this no person has any rig h t to represent Lord N orm anby as de­ fended by Lord M elbourne.
H e was plainly and alm ost in term s given up by his leader.

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H e was plainly and in direct term s given up by his de­ fender, Lord H atherton.

H e was openly con­ d em n ed by his friend, the D uke of Richm ond.

B u t to w hat purpose m ake these rem arks, or re­ cord such facts as these ?
N ot certainly in th e vain hope of w orking impossibilities,— stopping th e false to ngue of the professional slan d e re r,— opening the hearts of p arty leaders to justice, or to tru th the ears of th e ir dupes,— or m ak in g shameless men blush— m ak in g those blush at being detected, who never blushed to cheat.

No such impossible aim is here in viewr.


B u t it is n o t w ithout its use to tak e every o p portunity of confirm ing the people of this c o u n try in th e ir resolution wisely taken of late years, to th in k for themselves, and not let th e ir opinions partisans and p arty prints dictate It is not of m en an y more strik in g proofs u n im p o rta n t in form ­ how unsafe a guide p a rty prints are ing th e public opinion on th e co nduct of public the worst kind of to show men.
to give new and th an of measures.

I t is useful xvm party dishonesty in its very worst colours, in order It to deter men from becoming faction’s slaves.

is good to add a new and striking illustration of H um e’s remark, as sagacious in substance as h ap ­ pily and simply expressed in words.
“ It is no wonder that faction is productive of vices of all kinds ; for besides that it influences all the pas­ sions, it tends much to remove those great re ­ straints, honour and shame ; when men find that no iniquity can lose them the applause of their own party, and no innocence secure them against the calumnies of the opposite.”— (History o f England, chap.

lxix.)
lxix.)

It is as well also to note the injury which party does to public morals by the encou­ ragement which it gives to a vile traffic in slander and falsehood ; for neither can the people nor those who assume to guide them be in a sound state, when the one are occupied in fabricating malicious fic­ tions which the other are habituated to contem­ plate, though they may not be able to believe.
There are not many serious evils in a popular government, and none at all deserving to be com­ But assuredly this pared with its advantges.
is among the worst of those drawbacks to which we gladly submit for the blessings we enjoy, that one part of the community are trained to trick and deception, while another are drawn into unreflect­ ing dupery ; the feelings of public men are ren­ dered callous to public opinion, by seeing its oracles so often devoid of all truth and justice; X I X and the dictates of rig h t and wrong are confounded by observing how the best of party men, th em ­ selves incapable of such base proceedings, are yet willing enough to share in the benefits which their followers thus rend er to their cause.
HOUSE OF LORDS, T u e s d a y , A u g u s t 6.

1839 .

itself, LORD BRO U GH AM.

— If, in address­ ing your Lordships, I looked only to the param ount — perhaps the unparalleled — importance of the case which I am about to bring under your consideration, as it regards the policy, the welfare, and the constitution of this country, I should feel much less anxiety than I experience at this moment.
B ut I recollect that, unhappily for me, and, perhaps, unfortunately for the question it is one of which the indisputable importance is even ex­ it excites ; ceeded by the great interest — I mean not merely that natural, legi­ tim ate, and unavoidable interest which it must raise amongst the people of the country to which it more particularly re la te s ,— I allude not merely to the in ­ terest which it excites among your L ord­ ships, as the guardians of the pure ad­ m inistration of justice,— you, yourselves, being supreme judges in a court the most distinguished in all the world, — but I am pointing to the personal and the party feelings, — the heats naturally kindled.
among those who, 011 the one hand, may suppose th at I stand here as the accuser o f an individual or of the Government, and amongst those who, on the other hand, may conclude that the parties stand here placed on their personal defence ; and, worse than this,—I allude, with feel­ ings of a truly painful nature, to that interest which this question is calculated to raise, and which I wish that any effort o f mine could lull or delay, — I may be supposed to come forward for the purpose o f lending m yself to personal views, or to party views, and not merely in the dis­ im perative public duty.
charge of an B ut, if the experience which your L ord­ ships have had of me, while practising before you as a m inister of justice at your bar, or as presiding, so far as any Peer can preside, over your judicial proceed­ ings in the House, — if the whole tenor o f my not short public life of th irty years and upwards (in which I have constantly — it is, perhaps, rather the result of good fortune than arising from any m erit of my own — by accident I might perhaps say — without deviation, or change, or shadow of a turning — proceeded in the same course, and been guided steadily by the same uniform principles), — if , this gives your Lordships 110 pledge that I appear on the present occasion only to discharge a public and a great re ­ sponsible duty, then what further pledge !
can I give, — what more can I say ; than this ?

— M ark how I, this day, per- j form the duty which I have undertaken ; and then — whosoever of the accusers may be disappointed, or whosoever of ^ those wrho are on their defence may be j chagrined, — whatsoever party feelings !
may be excited, or whatsoever party » objects may be frustrated, by my dis- j charge of public duty, — at least, I shall be able to appeal to your Lordships for my acquittal from the charge of having , made myself, 011 this occasion, what I never did before — an engine of party , feeling, or an instrum ent of personal ■ attack.
My Lords, I shall detain you with no \ further preface : I have only detained you j so long, because I thought it absolutely necessary for the question, as well as for I will, at : myself, to make this appeal.

once, proceed into the heart of this great subject.

Rushing into the midst of it, I !

call upon your Lordships to examine the propositions which I read to you on a : form er day, and to which I now ask your assent.
The first of them relates to a | subject which, in my opinion, is second , I f in im portance to none of the others.

one thing more than another be essential to the due adm inistration of justice in any country, it surely is, that evidence, when it is known to exist, for the conviction of an offender about to be put upon his de­ fence, should be certainly forthcoming when the day of trial arrives, and the guilty not escape for want of witnesses to his crime.
In England, and in Ireland, howr is this great object of justice effected ?

In England, as in Ireland, those persons 2 HOUSE OF LORDS [ T u e s d a y , who are known to have the power of giving evidence, are, by the committing magistrates, bound over to prosecute ; this is to say, in common parlance,—for it is the Crown that prosecutes ; but those persons are bound over to give evidence as witnesses for the Crown.
In England, generally speaking, there is no difficulty in obtaining individuals, who will not forfeit their recognizances, and who are ready to come forward with their testimony.
When they do happen to forfeit, those recogniz­ ances are estreated, the penalty which they have incurred by their default is levied, and, if they cannot pay that penalty, they are committed to prison ; — not formally,— not nominally committed to prison, —no ; but there they are kept till they give evidence, or till they have been sufficiently punished, by way of an example, to deter others from committing the like offence.
This is the corner-stone of the admini­ stration of criminal justice in England, and if that stone be loosened, the fabric must be shaken to its base.

How is I may, now, as I come it in Ireland ?

to this point, advert to the evidence.

I mean to keep as nearly as possible to the letter of it in my statement ; but, though I may have occasion to trespass at some length on your Lordships’ time, I intend to trouble you with reading from the evi­ dence as little as possible, — probably not above a page or two.
I am acquainted with every word of the evidence that refers to this question ; if necessary for the support of my argument, I can refer to it ; if I hear any dispute in the debate, I will read the examinations in reply ; but, in the outset, I shall read as few extracts as possible.

We have, however, again and again, through­ out the whole mass of this evidence, the most undeniable proof that, in Ireland, the administration of justice is not, in this respect, the same as it is in England.
In the former country, indeed, as in the latter, when a man refuses to come for­ ward and give his evidence in a criminal prosecution, the recognizance is estreated, and the form of inflicting the penalty is gone through,— but that exists only in form which in England is substantial.
In ninety-nine cases out of a hundred, where there is default, no fine can be levied, because the party is not in cir­ cumstances to pay anything ; and, then, instead of being imprisoned in such an effectual manner as, ’ by example, to deter others from pursuing the same course, — that happens, which must needs frustrate all criminal proceedings, — the offender is let out in ten, or twelve, or fifteen days, — the punishment being as nominal as the estreat ; so that, for this paltry suffering, this mere inconvenience, a man escapes the obligation of telling the tru th , in execution of the law.
And, my Lords, in what country, and in what state of society, and in what kind of circumstances, is it, that such a bad practice — calculated, on the one hand, to deter a man from volunteering his tes­ timony, and, on the other, to seduce him from giving his evidence — has grown up, and now universally prevails ?
Not in England, where binding over to give evidence is considered as little better than a mere form, — where every person, so bound over, would come forward, were he secure from all penalty, and assured that nothing could ensue, from his de­ fault ; but in a country where there exists every circumstance fitted to deter a witness from coming forward, and every induce­ ment calculated to prevail on him not to appear.
The persons whose evidence is de­ sirable, are either the friends of the par­ ties accused, or possibly accomplices, or persons affected by circumstances which grow up in troublous times, and, having been thus connected together, are, in consequence, most likely to have a strong fellow feeling towards criminals accused of certain offences.
Such circumstances unavoidably operate to produce a favour­ able feeling in the minds of the wit­ nesses towards the criminal, and even towards the offence itself, with which he is charged ; and very little further inducement wTould altogether prevent them from coming forward to convict.

But, then, there is the terror, the personal fear of maltreatment, nay, of death it­ self, to co-operate with the leaning to­ wards the criminal.
All who give evi­ dence know that their lives are not safe, if they perform their duty ; and they are taught, by the practice of the courts, and the proceedings, that they may exchange the risk of murder for a fortnight’s resi­ dence in prison.
But, if the circumstances were of a much less extreme nature, — if the terror were less,— if the risk actually run by witnesses in giving evidence were less, — if the accident of friendship, or alliance, or society, on the part of the criminal, were not so powerful to deter or seduce witnesses from their duty to the public,— it is quite enough to say that the office of prosecutor, or accuser, 01* wit­ ness against a prisoner, is none of the most agreeable duties which men perform ; and, consequently, the law — feeling for human weakness, and knowing the little chance which a mere abstract love for the administration of justice has, in competi­ tion with such feelings as personal fear, or good nature, acquaintance with or A u g u s t 6.]
ADMINISTRATION OF JUSTICE IN IRELAND.
3 friendly feeling towards prisoners, — the law — seeing the little chance which the mere abstract love of the administration of justice has, in producing the effect of making men accusers, or making them give testim ony— does not trust to volun­ teers ; it cannot reckon upon willing tes­ timony, and it compels them to come forward — it obliges them to come for­ ward — it binds them to prosecute — it makes them enter into recognizances, which may force them to give evidence.
B ut in Ireland, where the motives of fear and favour are infinitely more powerful, a rule has grown up which makes the entry into recognizances a merely formal proceeding, and wholly unavailing to its purpose.

In making this statement, I think I have laid sufficient ground for the first principle which I have laid down in my propositions.
This principle affirms the expediency of rendering that process real and substantial, which, at present, is merely nominal, — of making it certain, that, if a witness forfeit his recognizances, he shall suffer the consequences which the law awards, by being imprisoned when he cannot pay the penalty.

M y Lords, I now approach my second proposition, which, I will say, is to the full as im ­ portant as the first — more im portant it I may be suffered, how­ cannot well be.
ever, in comparing the two propositions together, to make this distinction be­ tween them, in fairness to the Irish Go­ I bring no complaint against vernm ent.

any party for .that which I have hitherto been describing ; it appears to be a bad practice, which has grown out of a former state of things, and for which no one can be held, strictly speaking, responsible.
I should be glad to have the satisfaction of m aking the same exculpatory observation with reference to the head of the subject to which I am now about to refer.

A high Irish law authority has, to my great astonishm ent, recorded, in w riting, that a certain right of setting aside jurors in criminal cases, which has been acted on in Ireland, never existed in England, — whereas the contrary is well known to be the fact.
There is not, in this respect, — whatever there may be in o th e rs,— one law for Ireland, and another for England ; it is in the power of the Crown to direct individuals who appear as ju ro rs to stand aside without showing cause, until it shall be seen, afterwards, that the pannel is exhausted by challenge or non-attendance, and that twelve cannot be obtained.

This right, however, is more sparingly used in our proceedings.
I t was, until lately, the custom in Ireland to set persons aside, who entertained the same party feelings as the persons accused ; — where, for in­ stance, they had attended party meetings, ] and made violent speeches, taken p art I with the prisoner, committed themselves I to an approval of his offence.

For these, I and other matters of a similar nature, I they were desired to stand aside until 1 the legal number of jurors were sworn.
1 But, in 1835-6, the then Attorney General I (Sir Michael O’Loghlen) gave an instruc- ] tion with reference to this point, which j has been the subject of much animad­ version, and is worthy of grave consi­ deration.
T hat learned person assuredly directed the Crown prosecutors not to challenge any person “ on account of his religious or political opinions,” or, “ ex- i cept in cases in which the ju ro r is con­ nected in some m anner with the parties in the case.” Now, although no hum an being is, in a general point of view, more decidedly adverse than I am to making religious or political opinions the ground !
i for an exception to a man, as to his hold- ing an office under the Government, or as i to his acting in the capacity of juror, — I still, I m ust say that I cannot go the full length of that perem ptory exclusion, so 1 strongly expressed in the instruction to which I have referred, and which forbids, in all cases, the right of setting aside on « account of religious or political opinions ; because I can well imagine a political ] trial, where everything may depend on ( having a ju ry altogether clear of party j feeling, however clearly the fact may be proved.
In such a case, let your L ord­ ships suppose one or more persons, on a jury, holding precisely the same violent .

opinions, and participating in the same feelings as the accused, — feelings, out of ; which the offence arose, and connected • with which the offence needs must be ; — is there not a probability that, however evident the proofs may be, a ju st result will be frustrated, and the justice of the case defeated, by the composition of the ju r y ?
B ut it appears, from these in ­ structions to which I have referred, th a t ( no person is to be set aside, except “ he be , the i connected, parties ;” so that, even if it should turn out that a person, about to bo sworn as a ju ro r, has expressed the strongest political opinions, and used the strongest language, — those opinions and that language being in accordance with the sentim ents of the party accused, tending to excite the fe r­ m ent out of which the crime arose, and thus m aking him all but an accomplice, — is he to be considered as a fit and proper person to be placed in the ju ry box, in order to sit in judgm ent on his _____ __________________________ :___ 1 in some m anner, with 4 HOUSE OV LORDS.
[ T u e s d a y , fellow offender, because lie is not directly connected with him, although deeply im­ Sir Michael plicated in his offence?

O’Loghlen, in his evidence, put a con­ struction on these directions, which is altogether about the most marvellous I I examined Sir Michael ever heard of.

very fully upon this point.


I questioned him for nearly half an hour ; and all the members of the committee to whom I have spoken on this subject, agree with me in opinion, that the explanation was very short indeed of being a satisfactory, or even a consistent or an intelligible, statement.
He said that “ he conceived that a person who bore no relation to the parties, and, consequently, did not come within the grounds of challenge stated in his letter, might still be set aside for other reasons.” Now, in his written in­ structions, he states, distinctly, that jurors should be set aside only for the one rea­ I then questioned him as to whe­ son.
ther, if a person were grossly ignorant, or incapable of understanding a case, although not at all related to the parties, or liable to strong objection on the ground of his having committed the same offence for which the prisoner was charged, such a person should not be made to stand aside?

His reply was, that that case would not come under his instruction ; but that such a witness might be set aside.

Now, this, again, was contrary to the letter of the written instruction.
His answer was similar, when questioned as to the case of a man of notoriously bad habits, —nay, an accomplice with the pri­ soner.

To that he said, “ Oh !

I never meant that he should not be made to stand aside.” But what construction was put by the Crown prosecutors in Ireland on Sir Michael’s instructions ?
Mr. Kemmis — no novice in office (he has filled the situation of Crown solicitor in Ireland thirty-eight years)— stated, upon his examination, that he should not con­ sider himself justified in setting aside a juror for those reasons which I have just now hastily gone over to your Lord­ ships, being the first that present them­ selves,— rising up, as it were, in judg­ ment against Sir M. O’Loghlen’s rule.
Thus, it appears that, in so important a matter as the composition of the tribunal, Mr. Attorney General gave his instruc­ tions to the Crown solicitor in such terms, that he put one construction on them, while the Attorney General, himself, put another — the person executing the order reading it one way, and the person giving it, another;—in plain terms, that one thing is intended to be directed, and another thing is deliberately done, ,— and done in­ evitably, because the person acting under orders could not avoid putting on them his own construction.
Now, if your Lordships turn to the evidence, not of parties hostile to the Government, but of men who agree with them in politics, you will find an almost uniform concurrence of testi­ mony, to the effect that this system has very much injured the composition, by lowering the character, of juries in Ire ­ land, — retaining upon them many pub­ licans, a class of men who are, of neces­ sity, very much under the influence and control of the popular voice.
That great class of offenders, designated Ribbandmen, exercise, naturally, a considerable degree of control over the proprietors of public houses, where their meetings are, almost uniformly, held.

My Noble Friend the chairman of the committee knows more of the details of this part of the subject than any man.

I appeal to him, whether it is possible to expect that publicans serving on juries will dare convict a Ribband offender ?
My Lords, the ob­ servation made by one of the witnesses on this subject, now in the employment of the Crown, is decisive.

This witness says, — I do not say th at publicans are not honest m en, and would not be honest ju ro rs ; but, in the circum stances in which parties are, they dare not do their duty as honest, upright, and im par­ tia l m en.
Almost all the other evidence agrees in describing the juries as worse in conse­ quence of the instructions; but to the universality of this testimony there is a remarkable exception, — that of Mr. Cahill, who was appointed, in 1836, one of the Crown solicitors.
The evidence of this gentleman is such, that, though he may be a very able solicitor, and a very respectable person in private life, still, in his character of witness, I have not a very high opinion of him, how well soever he may perform the other duties of society.

"The reason for my entertaining a higher opinion of Mr. Cahill as a solicitor than as a witness, is founded on the following circumstance.

Those Noble Lords who attended the committee will not easily forget it.
Mr. Cahill seemed to have an impression, from the beginning to the end of his ex­ amination, that it was a bad circumstance for those who gave him his appointment, that he should have been a member of the General Association, — this associ­ ation being one of a factious nature, aiming at the repeal of the Union, or, at all events, the demolition of the esta­ blished church, and the cessation of the A ugust 6.]

ADMINISTRATION OF JUSTICE IN IRELAND.

payment of tithes.
payment of tithes.

Mr. Cahill seemed to have heard that a charge had been made against him, and against his patrons, on that ground ; and every part of the testi­ mony he gave was tinged with the un­ pleasant recollection.

He was asked, — W e re you a m em ber o f the G en eral A ssoci­ a tio n held at the C orn E x c h a n g e a few years I cannot now confine m y se lf to the year ; ago ?
b u t I never was a m em ber o f any association h a v in g the repeal o f the U n io n fo r its object, — fo r I never sup p o rted that.

W e re you a m em b er o f the last G e n e ral A sso­ c iation th at was held a t th e C orn E x c h a n g e in D u b lin ?

— I th in k I was a m em ber o f that.

W ere you a m em b er w hen you w ere ap ­ p o in te d C row n so lic ito r?

— I am no t q u ite clear th a t I was ever a m em b er o f th a t association.

I ca n n o t state th a t I w as not.


I f you were, did you a tte n d its m e e tin g s?

— I have been p resen t looking on ; b u t I never took a n y p a rt in those m eetings.

D id you a tte n d as a m em b er ?

D id you e n te r th e room in rig h t o f b e in g a m em b er?

— I am an x io u s to know w h eth er I was a m em ber.

I am n o t c ertain w h e th e r 1 was o r not.

W as th ere any p a y m e n t on e n te rin g the asso­ c ia tio n ?

— I am certain th ere was.


D id you m ak e th a t p a y m e n t ?

— I have no re ­ c ollection.

I am n o t anxious to d eny I was, i f I was.

3 Iy im pression is, th a t I was ; and I should b e happy to state w hat T recollect, i f I could I th in k th a t I becam e a state it positively.

m em b e r w hen it was first started, a n d took no fu rth e r n o tice o f it.

H e was examined for a lonç hour, in the same way ; but we got nothing out of him.
Although he had been a member of only one other association — or, at most, two — all his life ,— he did not recollect the objects of the G eneral Association.

H e was asked, — H a v e you ever b een a m em b er o f a n y o th er th e C ath o lic A sso c ia tio n ; asso ciatio n ?
— O f and, I th in k , o f an association — I fo rg e t w h a t it w as called — to su p p o rt th e R e fo rm B ill. H a v e you any d o u b t th at, a t th e tim e you paid a sovereign for adm ission to th a t association, you k n ew w hat w ere th e d eclared objects o f th a t as­ sociation ?
— I c an n o t state positively th a t I ever did pay to th e association, n o r th a t I belonged to it ; b u t I am n o t p rep a re d to state th a t I did I n e v e r th o u g h t on th e su b ject till the not.

I know I belonged to q u estio n was p u t to m e. I m ay have belo n g ed o ne or tw o associations.

to th a t p a rtic u la r one ; I am n o t positive.
I am c o g n iz a n t o f th e o p eratio n s o f every society, for I read th em in th e n ew spapers a t th e tim e, th o u g h I have n o t th o u g h t o f them since.

A bout w hat tim e was it th a t you left th e asso­ c ia tio n ?

— I do n o t re c o lle c t h av in g ever re ­ signed.

W as it as early as 1834?

— I f I state th e tim e, I m u st state th a t w hich I do n o t recollect.

H a v e you a recollection w h e th e r it w as one year ago, or te n ?
— I am q u ite c e rtain it was n o t ten .

A rc you no t c e rta in it was n o t five?

th a t it w as held in 1834?

— I am n o t certain .

T h e fo rm e r association you b elo n g ed t o , — in w h a t year was th a t?

— I re in e m b e r th e C atholic A ssociation was in 1835, I th in k .

A n o th er association besides th a t?

— I do not] recollect th e p a rticu la r date o f that.

Y ou w ere a m em ber o f the Catholic Associa- j| tion in 1825?

— I n 1826, I th in k , I was a m em -1 ber.


D id you a tte n d the m eetings ?

— I did.

D id you a tte n d fre q u e n tly ?—V ery fre q u e n tly ,| d u rin g the C atholic A ssociation.

H a v e you any recollection o f the first tim e !

you w e n t to th e m eetin g o f the C atholic A sso-I c ia tio n ?

— I was p resen t a t a m eetin g o f it in] 1823; it assem bled in a room in C apel S tre e t,' and I th in k th ere w ere seven or eig h t personsj present.

W hat an extraordinary contrast was!


here presented between the accuracy with which Mr. Cahill remembered a trans-j action that occurred sixteen years since,!

and his extreme shortness of memory asj to whether he had ever been admitted a* member of the Political Association, ex­ isting about four years ago, and very near the time when he received his ap­ pointment from the Government !
Ask him about the recent transactions, he- knows nothing ; ask him about the re ­ mote ones, he is perfect, ready, minute, — can tell the street where the meeting,4 was held, and the numbers that attended.

This witness was further examined as> follows : — D o you recollect who it was th a t first proposed to you to becom e a m em b e r o f th a t association ?
— 'No ; I do n o t reco llect the fact o f b ein g p ro ­ posed a t all, o r w here I paid, o r w h eth er I have ever paid ; I th in k it likely th at I m ay have sub-] scribed to it ; I have spoken m erely to th e like-] lihood ; b u t I can ascertain the fact.

W ill you u n d e rta k e to sw ear th a t you w ere aj m em b er o f it a t a l l ?

— I stated, d istin ctly , th a t I w ould not.

W h y do you th in k you w ere a m e m b e r?


— T h a t is th e im pression on m y m in d ; and, except* th a t, I th in k th a t I ca n n o t give a n y reason.

W ill you sw ear you ever a tte n d ed any o f those m e e tin g s a t a ll?

— I ce rtain ly was in th e habit; o f g o in g in to th e p la c e ; I was in the h ab it o f g o in g dow n and lo o k in g on.

W h a t is the last tim e you rec o lle c t b e in g atí e ith e r o f these m e e tin g s ?

— I ca n n o t state.


T h o u g h you say you w ill n o t sw ear you did n o t a tte n d te n tim es o r m ore, have you a n y recol-j lectio n o f any one su b je c t you h eard discussed, th e re ?

— I have not, of' any p a rtic u la r subject, atj a n y p a rtic u la r tim e. l) o you m ea n to abide by th a t, — th a t you have b e e n te n tim es to th e m eetings, an d th a t you do no t reco llect a n y th in g w hich was discussed a t the m e e tin g s ?
— I have n o t stated th a t I was te n tim es th e re ; b u t th a t I w ould n o t sw ear th a t I w as n ot.

W ill you sw ear you w ere once th e re ?

— I am su re I was th e re rep eated ly ; I know I was.

B u t, how ever g re a t th e n u m b e r o f tim es you w ere th ere, you c a n n o t rec o lle c t any one subject th a t was discussed a t th a t m ee tin g ?

— T h e re is not, in m y reco llectio n , any p a rtic u la r subject.

W as a n y th in g said a b o u t tith e s ?


— Yes, I am th e re was, 5 noiu that it is suggested to A n y th in g said a b o u t ab o lish in g c e rta in 7)ie.

Yes.

tith es ?

— E 3 J 6 HOUSE OF LORDS.

[ T uesjdat , H ave you any doubt th a t that was one object o f the m eeting?

— I remember it was.

H ave you any doubt, that, at those m eetings, som ething was said respecting separating from this country, if they could not obtain those ob­ je c ts ?
— 1 never heard th at spoken o f ; bu t that m ay have been in the declaration.

N ow that it is H suggested, I think th a t th at was referred ^to in it.

It is wonderful what a plastic memory this witness possessed ; and how, as if by ‘sudden inspiration, he remembered, at once, when suggested to him, what was, previously, utterly beyond the range of his recollection.

lie was then asked, — H ow long have you held your present appoint­ a ie n t ?

— Since January, 1836.


H a d you ceased to attend before you got your appointm ent ?

— I never did any form al act of [secession.

B u t you have ceased to attend the m eetings ?

; — I do not m ean to state th at I have not been present at a m eeting since my appointm ent ; my recollection is th at I hav£ D o no t you know th at the association was form ed in the year 1836 ?

— I do not.
— I do not.

B u t you will n ot swear th at you ever attended a m eeting o f this G eneral Association before ,1836?— 1 cannot distinguish w hat the several m eetings were ab o u t; there were continually m eetings at that E xchange, and 1 was in the habit o f going to those m eetings, and I have not ■ a distinct recollection o f the several classes o f j (meetings.
In justice to Mr. Cahill, it is fit to add his answer to another question respecting the approbation of the magistrates of the county of his conduct in the discharge of his duty.

He was asked, — H ave you, on any occasion, received any m ark o f approbation from the g en try and m agistrates o f the county, since your official appointm ent?
;— I received a vote o f thanks from the gentry and m agistrates o f the county, L ord D onough- m ore in the chair, for my activity in bringing the m urderers o f Cooper and W ay land to ju s ­ tice.

But, in justice to the Government, it is also fit to record their gratitude.

This gentleman, whose memory is so treacherous where he might be supposed to know anything against his patrons, was, formerly, an election agent for Mr. Sheil, and owed his promotion to that gentleman’s interest.
Having shown the ambiguity of the instructions, as well as their pernicious tendency, I now come to the other part of the second resolution, — that which re­ gards uniformity of practice in respect of challenging.

Your Lordships have already seen how the construction put by Sir M. O’Loghlen on his.

own instructions varies 'from that of the parties to whom they were addressed.
But it appears that, not satisfied with giving orders that meant t>ne thing and said another, the Attorney General gave different directions to dif­ ferent men.

Mr. Tierney, a Crown soli­ citor like Mr. Kemmis, said, that prisoners always challenge, in order to get low people and publicans on the jury.

Not having re­ ceived Sir M. O’Loghlen’s instructions in writing, his course was guided by verbal orders, — and it was a course wholly dif­ ferent from Mr. Kemmis’s.
“ I always challenge illiterate persons,” said he ; “ I had verbal instructions from him, to challenge such persons, and spirit deal­ ers.” So it appears that Messrs. Kem­ mis and Tierney act under directly oppo­ site instructions in this important parti­ cular.
In May, 1837, Mr.'Drummond sent instructions to the different Crown soli­ citors, that the right to challenge jurors should not, in any way, depend on the po­ litical or religious opinions of the parties ; and that they should not, in any case, object to a juror, unless he were, in some way, connected with the case, or, for some ascertained cause, was unfit to serve.

Now, the grounds were here just, and fairly stated.
It is worthy of remark, that Sir M. O’Loghlen, one week after giving the instructions to Mr. Kemmis, gave instructions of a totally different nature to Mr. Hickman, the Crown soli­ citor for the Connaught circuit.

Was not this carelessness, in a matter so im­ portant, most objectionable ?
The in­ struction given by Sir M. O’Loghlen to Mr. Hickman was similar, in expression, to that which I have just cited as having been despatched in the circular, by Mr. Drummond, and the words “ unless the juror be, in some way, con­ nected with the case, or, for some ascer­ tained cause, is unfit to serve.” Mr. Geale stated, in his evidence, that he had written to Sir Michael before going his circuit ; and that Sir Michael, in his re­ left him to use his own discretion ply, as to persons connected with the case.” Now, even if he had said, “ Challenge all connected with the case,”— this is wholly different from saying, “ Challenge all connected with the party.” included Then we come to Mr. Perrin, another Attorney General, whose instruction was widely different from his learned succes­ sor’s, and was as follows : — “ I wish no man to be set aside by the Crown, against whom there is not a good and substantial objection.” This was sound, and rational, and intelligible ground to take ; but it no doubt looked plausible, and was probably very agreeable to the feelings of Mr. A t­ torney General O’Loghlen, to have the opportunity of telling his own sect and party, “ See what I have done ; I have tied up the hands of the prosecutors.
They can never challenge a man, now, on A u g u s t 6 . ]
ADMINISTRATION O F JUSTICE IN IRELAND, account of his religion or politics/’ Thus, therefore, although the case m ight be deeply imbued with religion — absolutely steeped in all the rancour of sectarian animosity, — though the quarrel might be a political one, and the denial of justice secured by empannelling, in the one case, a sectarian, in the other a political, jury, — notwithstanding this powerful, this de­ cisive argument, it was ordered that no political or religious objection should ever be taken ; and the Catholic A ttorney Ge­ neral, the partisan of a well-known fac­ tion,— Sir M. O’Loghlen,-—had an oppor­ tunity of telling the Catholics and agitators of Ireland, that which Mr. Perrin never had dreamt of telling them, and which had never appeared in any of the instructions to Crown solicitors preceding the regimen of Sir M. O’Loghlen.
He, first, and alone, could truly say, “ I have excluded from all challenge Catholics and agitators, who may now pass upon the juries that are to try offences growing out of and connected with ecclesiastical and political feuds.” I m ust apologise to your Lordships for having dwelt so long on these details, the propositions which I have enumerated being almost self-evident, — namely, that men bound to perform the duty of giving evidence should be compelled to fulfil their obligations ; and th at the law officers of the Crown should issue rational, in ­ telligible, precise, and, above all, u n i­ form, instructions.
The two last heads of my resolutions are incomparably more im portant than the subject with which I have last occupied your attention.

The first of these relates to the conduct proved, on oath, to have been pursued by the executive G overnm ent of Ireland with regard to the sentences of prisoners, and the course adopted in rem itting or altering those sentences, in reference to the learned "Whe­ judges by whom they were passed.
th er your Lordships look to the high functions discharged by those learned persons, or to the sacred interests in ­ volved in the adm inistration of justice itself, this is a subject of the deepest in ­ terest, and of supreme im portance.
If any man should think th at I am now coming on personal ground, I can only say that, if it be absolutely impossible to satisfy your Lordships of the necessity of laying down some rule for guiding the future operations of the executive G overnm ent in Ireland, without show­ ing to your Lordships th at necessity, by referring to the deviations made from it, and if the inevitable consequence be, th at any individual may think him self ersonally aimed at ; I, conscious of not aving any such intention, m ust only the appeal to your Lordships for my defence j and protection against so utterly un- j founded an imputation.
Would to God that I could go through my task without even hinting at persons and at personal m atters: but your Lordships will take] into consideration the absolute necessity of the case, and will ask yourselves, both j how it is possible to censure a bad prac- ; tice without pointing towards the conduct i which has sanctioned it by adoption ; and, ; also, how a public duty of paramount!
obligation can decently be shrunk from, | merely because its performance may bring into discussion the conduct of an indi-i vidual endowed with official powers.

Ne- J vertheless, there are feelings which m ak e. the discharge of this duty as painful asj it is imperative ; and the only comfort which I can draw, in my present position, from the case before me, is, that the bur­ den of the blame I am about to cast, does not rest exclusively, nor even especially, upon the Irish Government.
They do not stand out alone, or without support ; their conduct does not come before your ; Lordships unsupported, unapproved, even, unpraised, by the whole of the Govern­ m ent at home.

My complaint is noti against Irish Administration.

No; charge is made by me, at all.
B ut if, in the progress of my examination, any blame springs up, — if, in the course of my statement, any charge comes out, — it is urged, not against any single unprotected individual, but against the strong arm of the executive G overnment of this country, — a G overnm ent responsible for all the acts of their agents, so long as those agents stand unrem oved,— a Government always, in law, responsible, but here, in íact^ bound up together with their Irish ser­ vants ; the M inisters in England have, in short, made themselves, regarding these transactions, one and the same with the Castle of Dublin.
I will now proceed tc this im portant question ; and, passing over, for the present, any rem arks upon the power vested in the Crown, of rem it­ ting or changing the sentences ot p ri­ soners, I will only take leave to statí that this is a high and em inent func­ tion, always to be exercised after m a­ ture inquiry, and with great délibéra- tion.
I t should never be forgotten, tha the judges, too, stand in an eminently responsible position ; that their character: ought not to be lightly assailed, thei] privileges outraged, their authority se at nought.

W ith respect to them, o all other public functionaries, you hav< no middle course between at once îm peaching or rem oving them, and, whiL they continue unremoved, treating then B 4 HOUSE OF LORDS.

[ T u e s d a y , i s i f they were alike irremovable and un­ impeachable.
I f there be in this world, )ne thing more inconsistent with itself, Ind with all sound principle, than another, It is to retain men upon the bench of ‘ustice, and hold them up to the hatred or the contempt of the people among whom they still sit to administer the laws, ^ u t I will now proceed to describe, from l;he evidence, the conduct which has been 'ield towards these judges, — and which .

'u\\y bears out the terms of my fourth resolution.


It appears that a memorandum was made on paper by a clerk under the Irish ^Government, — which memorandum was, .by all, supposed to have been made under ihe au th o rit/ of the Executive, — which memorandum could not have been made, ex mero motu, by the clerk, — which me- ïnorandum has, to this hour, never been disavowed by the Government in any way, Jbut which memorandum, whether autho­ rised or not, was acted upon, and was that which I will now describe.
It was to the effect that no case, tried before Lord Chief Justice Doherty, — no case, on the trial of jwhich he presided and pronounced sen­ tence, —when it came to be considered by the executive Government, with a view to remission or commutation, should ever ■be sent to that learned and reverend judge lor his advice upon its result, or for in­ formation upon its circumstances.
I have, in y Lords, administered justice ; I have presided over the highest tribunal of the country ; I have assisted your Lordships «in the most important functions delegated ‘to you by the Crown, and in the supreme judicial powers which you exercise by the ^constitution of the realm — as a minister tof justice, and as a judge, my life has t>een passed in courts of justice; as a judge, I still sit on your bench here, and jeisewhere ; I have known the reverend fudges of the present time, and those who ^preceded them ; I believe no man is more intimately acquainted with their various opinions, habits, and feelings, for no man {has had more unreserved intercourse with ■them ; —and I protest that I do not know any one of those venerable persons, — the [heads and administrators of the law of the jjand, — who could have brought himself ÿo believe in the possible existence of rsuch a minute as I have described : nor E [Could all my own experience in judicial £)r in political affairs have brought my (mind to this belief, but for the evi­ dence of the witnesses uncontradicted, tand the silence — the expressive silence 5—- of the Government itself.
I will ven­ ture to add, that, if it had been told the that such a document (English judges • existed, the answer of all of them, in one voice, would have been, — “ Mis­ take, carelessness, error, misunderstand­ ing, alone, could have given rise to such lines traced on any paper : depend upon it, ’tis all wrong; it is a fabric of the imagination, — and no such outrageous instruction ever existed ; still less, could it have been acted upon by any executive Government.” But how stands the fact ?
Has this been found to be a baseless cre­ It is a reality as sub­ ation of fancy ?
stantial as it is sad,—as little to be doubted as it is much to be deplored ; and, so far from not being acted upon, there were, in the course of two or three years, twenty- seven cases tried before the Lord Chief Justice, over which he presided with con­ duct unimpeached, upon which he pro­ nounced the sentence of the law ; — and every one of those twenty-seven cases was referred, not to the Lord Chief Ju s­ tice,— but, as the evidence on oath shows, was submitted, in obedience to the terms of the minute, either to the Attorney General, the Crown counsel, the pro­ secutor’s nominee, holding his office during the pleasure of the Crown, — or the cases were referred, in nine instances out of ten, to the Crown solicitors — attor­ neys at law, practising in the Court of the Lord Chief Justice of the Court of Com­ mon Pleas, the second common law judge of the land.
I will take one of these cases.
There had been a trial for abduction, accom­ panied with rape : the charge of rape was abandoned, but the party was convicted of the abduction, and the sentence next in severity to that of death— namely, trans­ portation for life — was passed upon the offender by the Lord Chief Justice, who found, the next time he went the circuit, that, without any previous intimation to him, even of the ultimate result, — still less, without any communication before the step was taken, — the sentence so passed for so grave an offence had been changed to an imprisonment of twelve months ; and he, to this hour, is utterly at a loss to tell on what grounds that change was made, — nor can he even now, with all his reflection, imagine any reason for it.
So, again, in the case of Mr. Reynolds, a political agitator, convicted of a se­ rious riot before his Lordship and Mr. Baron Smith, an experienced and humane judge, who concurred in the sentence pronounced by the Chief Justice, — a sentence of nine months’ imprisonment.

That sentence may, at first sight, be thought heavy ; but it should be borne in mind that this was not the first instance of Mr. Reynolds having been convicted A u g u s t G.] ADMINISTRATION OF JUSTICE IN IRELAND.
9 of a similar aggression against the law and the K ing’s peace.
My Lords, shortly after the sentence was pronounced, a letter arrived from the executive Go­ vernment, stating that the case had been referred to the Attorney General, and that he, for reasons stated, thought a great deal of doubt existed as to whether M r. Reynolds had not been punished enough ; and so, after two months’ im ­ prisonment, the other seven months of the sentence — pronounced by both the learned judges who had tried the case — were remitted.
B ut it will be said, and naturally s o ,— “ How did this a rise ?

there m ust be some motive for this treat­ m ent of the judges, and for the extra­ ordinary course which justice and mercy had taken.” This brings me to the case of Gahan, — a case well known to the members of the committee, by whom it never can be forgotten,—and which it will, now, be my duty and my care to make known to your Lordships generally.
G a­ han was tried before Chief Justice Doherty, for having been party to a very gross and outrageous assault.

He was indicted, by the mercy of the prosecutor, under the Irish O utrage Act, which provides a sentence of seven years’ transportation for the offence, — though he m ight have been tried under a m uch more penal In all statute, and, indeed, for his life.

m y experience, I have never known a worse case.

In Ireland it wore an as­ pect of peculiar aggravation.
The assault It arose out was upon four policemen.

of no party quarrel, — it originated in no heated passions, — it was a cold­ blooded, and it was a deliberate, attack ; and it was clearly proved, by the unim - peached and uncontroverted evidence of all the witnesses, to be an attack upon the policemen, especially the sergeant, or commanding officer of the party, in revenge for his having given evidence, in a certain prosecution, which had led to the conviction of the offender.
This fact gives the deepest colour to the offence.

The crime went to the very roots of the adm inistration of justice, — it was an attem pt to m urder a man, in revenge for his having borne testim ony, and to pre­ vent his bearing testim ony again.

AVhy do I say so ?

— why call it m urder, when it did not end in death ?

I do so on account, of the injury, which was great.

The sergeant’s skull was fractured, his arm was dislocated, and two ribs were broken.
I t was also found th at another ruffian leaped upon a second policeman, and with the weight of his body stamped upon him, and put out his shoulder.

Am then, not justified in calling this a I, to the murderous attack ?

But I am not driven to conjecture the motive of this criminalfrom the act itself.

Habes conjitcntern reum.

I For one of the ruffians, in encouraging his j comrades, was heard to say, — exulting in !
his success, and after he thought he had} disposed of the policeman by murder, — I “ He is dead now ; he will never be a | witness again.” Another of the wretches) had been heard to remind his accomplices I of the place where they were to lie in | •wait for their prey.

Therefore it is th at I I say, a more aggravated case I never ; heard of in the whole course of my ex- !

perience and practice.


A t trial, however, an objection was taken, that) the policemen were not sober, and m ight I not, therefore, be accurate in their state- i ment of what had taken place ; and this doubt as their sobriety arose * from one witness having said there was a !
smell of whisky about them : but a medical gentleman proved that the smell of whiskey arose from their wounds, having been washed with spirits ; and the result proved that the men were quite ; sober, and had given consistent and ere- i dible testimony of the circumstances of the j transaction ; for the jury, to whose atten-1 tion this circumstance was fully brought, found the man guilty ; and the Chief Justice, having tried the case, and ap -1 proving entirely of the verdict, sentenced | Gahan to the m axim um of punishment!
known] to the law for such offences, w hen1 not prosecuted under Lord Ellenborough’s ; Act, — namely, seven years’ transport- i ation.

This was at the M arch assizes ; and, towards the end of that month, an; application was made by Gahan to the!

executive Government for mercy.

His| memorial was considered, and the proper course was taken with respect to it : the learned judge was applied to opinion on the trial.
The notes were furnished by the Chief Justice, who gave his opinion that he saw 110 reason to doubt the verdict or change the sentence ; and the G overn­ ment, acting on that advice, returned an the 6th of April, answer, on that the law must take its course.

On the 16th of April, a second application for m ercy was written, and, 011 the 17th, was received by the executive Government, in the shape of a memorial, not from the prisoner, but from his brother, who, as it chanced, is a Roman Catholic priest.
The memorial was couched in extremely offensive, and even the learned Chief Ju stic e ; and it charged him with corruption and injustice ; for it depicted him as a party tool,— “ a judge,” it said, “ of the right sort,” and from the case, and for his insulting, language towards for his notes of 10 HOUSE OF LORDS.

[ T u e s d a y , whom neither the brother of the writer, !nor any other in like circumstances, could .expect* justice.
After four days had elapsed,— that is to say, on the 21st of A pril,— a letter was sent to the Chief Justice by my excellent friend Mr. Drum­ It was written by a clerk, but mond.

!

signed by Mr. Drummond.

And here I must observe that, on the whole, it would ;be much better that such communications !

should proceed from a higher officer than an unknown clerk, who, though, very possibly, a respectable man, here did that I which would not have been done if Mr.
I Drummond had acted in the matter, him- I self.

This observation, however, applies [much more strongly to the letter conveying (a reprimand to the Chief Justice,— which , ought, if written at all, to have been I from the Viceroy himself, or the Chief Secretary.
I trust I am not captious in I making this remark ; I hope I am not I led away by habitual reverence for the judicial office, when I assert that they who hold it should be treated with all delicacy and respect, even by those ad­ ministering the highest functions of the I Government.

But to return to my narrative.


On the 21st of April, Mr. Drummond wrote to the Chief Justice, and called his at­ tention to the case of Gahan, — stating I that it was to be reconsidered, though I not that informing the Chief Justice jthe memorial from the brother was the !

ground for its reconsideration.

That [letter, however, inclosed the offensive It w*as sent on the 21st of memorial.
: A pril; and in a few days afterwards, — namely, on the 27th, — the Chief Ju s­ tice wrote a letter in answer, stating that he was very much surprised at re- jceiving so slanderous a communication, and still more that it should be made the j ground for a reconsideration of the case.

,He sent it back with his notes ; and added, that he had deemed 'it prudent to keep a copy of the paper which had been trans­ m itted to him.

I understand that this .now forms the ground for a sort of stigma on his Lordship.
But it turned out that Mr. Drummond never intended to send [the memorial to the Chief Justice; and it was urged in proof of this, that if any such intention had existed, the paper would have borne upon its margin the official note, “ Refer to the Chief Ju s­ tice.” As that note dfd not appear on the margin, the inference now drawn is, Ithat the memorial was not intended to be ’forwarded to the Chief Justice, but to the [priest, with a reprimand for the expres­ sions it contained, and a desire that those expressions should be expunged.
There was, indeed, no official note on the margin, “ Refer back to the priest,” any more than there was a note, “ Refer to the Chief Justice.” It, howTever, stands on the statement of the Irish executive Go­ vernment, that, by mistake, it was sent to the Chief Justice ; and it has been sworn in evidence that the intention was, to let the priest have it back, with a re­ primand : but this was not done at the time which might have been expected ; and therefore I think there must be some mistake, — at least, so the dates prove,— for the minute of the Lord Lieu­ tenant, referring it back to the priest, was produced, and was dated the 18th of April.
It appears that it was sent on the 21st of that month, not to the priest, but to the Chief Justice, who returned it ; and then it must, on the 22d, have been sent to the priest,—for the priest answers a letter, which, he says, is dated the 22d, and says he has to express, not his contri­ tion to the Chief Justice, but his sorrow for having given the Government any offence.
He frankly avows it was his in­ terest not to give offence to them ; but he does not say one tittle of being sorry for having so scandalously outraged the Lord Chief Justice by his libel.
This, how­ ever, either from want of care, or owing to the multiplicity of business, did not strike the Irish executive Government ; for this letter of the priest’s was after­ wards described by the executive Govern­ ment as having expressed the most humble contrition for the offence offered to the Chief Justice ; and it was described by a Noble Friend of mine (Lord Morpeth), in another place, as a letter expressing hum­ ble contrition.
In that place, the letter was not produced, but only the descrip­ tion of its tenour.

In the committee we had the letter itself ; and it was found to express no contrition, humble or most humble, except to the executive Govern­ ment.
Then, in point of date, came the explanation given to the Chief Justice, that the memorial was never intended to have been sent to him, but to the priest ; and though the minute was dated the 18th of April, it was not sent to the priest either on the 18th, or the 19th, or the 20th, or the 21st, nor until the 22d.

Why, then, was there such haste in sending it to the Chief Justice, when four or five days were allowed to elapse before it was sent, as so early directed, they say, to the priest ?
However, the Chief Justice was bound to believe the statement given in the explanation, and he did believe it.

In reply to that explanation, his Lordship said he never objected to their sending him the memorial ; on the contrary, he seemed A u g u s t 6 . ]

ADMINISTRATION OF JUSTICE IN IRELAND.

11 to think, that, if the Government were in the habit of receiving libellous attacks on the judges, it was better to send them to their objects, than keep them concealed.
H e rather thanked the Government for sending him the document, — at all events, of that he did not complain : “ B u t,” said the learned judge, “ what I do complain of is, that you— the Government — should act on such a letter ; and that, having de­ cided on the case before the priest wrote the libel upon me, you should make that libel the only ground for a reconsider­ ation of this felon’s case.” The Chief Justice’s complaint, and its grounds, were now, at length, understood by the Govern­ m ent ; and then came the m inute of the Lord Lieutenant of the 29th of April, stating that the learned judge was m is­ taken in supposing that the offensive m e­ m orial of the priest was the cause of re­ considering the case of the prisoner Gahan, and affirming that the reconsider­ ation of the case was owing to — what do your Lordships suppose ?
— to verbal communications of persons not named — not alluded to — not described ; and never before, in any way, general or specific, so much as hinted at ; but, among others, one was nam ed,— the A ttorney General liimself.

I am quite certain that there could be no intention to fabricate this reason, wearing though it does the sem­ blance of an after-thought.
I am sure there could have been no wish to state th at which was not true ; but I am equally certain, that, from some inadvertence, — perhaps in the hurry of business,— an excuse, in point of fact, was made to the Chief Justice, which was totally devoid of foundation in fact, and which is now dis­ tinctly and perem ptorily negatived by the evidence.

I am bound to state this most painful part of the case, how m uch soever I it may cost either others or myself.
entreat the attention of your Lordships while I point out, to dem onstration, that the letter of the priest was the cause, and the only cause, of the case being recon­ sidered.

The whole course of the dates would prove this in any court of justice, civil or criminal, where men were accus­ tomed to regard what is proved — not w hat is asserted by parties on their own behalf.
First, there was the letter of the 6th of April, stating th at the law m ust take its course ; then came the p riest’s letter of the 17th ; and then, .and not till then, was it th at the second con­ sideration of the case was determined upon.

N ext came the m inute of the 18th, to refer the priest’s letter back to him ; but which was not so referred until the 2*2d, having been sent, in the mean time, by mistake, as is said, to the Chief Justice.

Then followed the priest’s answer of the !
23d ; next, the letter of the Chief Justice of the 27th ; and then, for the first time, the statem ent was made by the minute of the 29th, that other grounds beside the priest’s letter existed for a reconsider-1 ation ; but this was not until two days after the Chief Justice had complained, j I t was to meet his complaint that this dis- ] connection of the priest’s letter and the reconsideration of the case was first made, or attem pted to be effected ; then came the communication of the 30th of April, from Mr. Drummond, stating to the Chief Justice that the letter had been sent by !
mistake to him ; and, lastly, there was the I note of the 7th of May, in which Mr. !

Drummond reprimanded the Chief Justice !

for having kept a copy of the slanderous memorial, — a very venial offence, as I conceive, in a judge so attacked, and who perceives the executive Government so far patient of the attack upon him, as to act upon the representation of its author.

B ut the A ttorney General, it seems, was very much staggered at this proceeding on the 1 part of the Chief Justice, and considered!
it to be a strange and a reprehensible thing ■ for the learned judge to proceed to consult 1 his friends and brethren upon the bench !

on the m atter.

H e could not comprehend how any judge, when so attacked, should 1 have any wish to defend his judicial : character.
"Why, really, I should think a man would be very stoical indeed, if, when so assailed by libellous memorials to the G overnm ent, he did not take some notice of them, — if he did not adopt some pre­ caution against them, — if he did not con­ sult his friends upon them.

Chief Justice D oherty did consult with five of the other judges, and they all approved of his con­ duct.
B ut it was asked of the Learned A ttorney General in the committee, whe­ ther, if the learned judge had not taken a copy of the libel, the G overnment would have given him either a copy or the “ Oh, yes,” said Sir Michael original ?

O’Loghlen ; “ no doubt they would.

These things are given, as a m atter of course, to parties libelled, if they apply for them .” Are they, indeed ?
Then this is the first tim e I ever heard of such a “ course of office.” I t is to me quite new, that a Go­ vernm ent should give up, as of course, and whenever asked for it, either the ori­ ginal or a copy of any letter defamatory of a judge on the bench, or any other func­ tionary, sent to any public department.

B ut I return to the circum stantial evidence which connects the priest’s memorial with the G overnm ent’s reconsideration of his brother’s case ; and I have to add that the 12 HOUSE OF LORDS.
[ T u e s d a y , dates of the letters form one ground only for saying that it is absolutely impossible to disconnect the second inquiry with the priest’s application.

Those dates are not the only ground upon which I raise my conclusion ; there is Mr. Drummond’s note, and there is Mr. Drummond’s evidence, — both of which clearly confirm the view I have taken of the matter.
On the 21st of April, “ he presents his compliments (as stated in page 129. of the evidence) to the Chief Justice of Common Pleas, and begs to send the Lord Lieutenant’s mi­ nute in reference to a further application in behalf of Joseph Gahan, tried ; and to request the Chief Justice will be so good as to send a copy of his Lordship’s note of the trial.” This minute referred to the priest’s memorial, no doubt ; it could not, by possibility, refer to anything else : but it was not till the 29th of April that any­ thing was heard of the other verbal com­ munications, — and, above all, of the A t­ torney General’s communications.
So much for Mr. Drummond’s note, written at the time.

His evidence is still stronger, if possible.

He is asked, — W hat is the further application here alluded to?

His answer is, — T he case had been under the consideration o f the C hief Ju stice before, and the L ord L ie u ­ ten an t had decided th at the law should take its course.

T here is a letter dated D ublin Castle, the 6th o f A pril, 1836 : — “ M y Lord, with reference to the report o f the 30th ult.
on the case o f Joseph G ahan, prisoner in the gaol o f the county of W icklow, under sentence o f transportation, I beg to acquaint you th at the law m ust take its course?

”— Yes, that was the letter.

L ooking to the note o f the 21st o f A pril, to which your attention has been called, w hat is the fu rth e r application there alluded to?

— T he fur­ ther application was a m em orial from the bro­ th er of the convict, — I apprehend, a priest.
T he com m ittee are to understand th at th at is the further application to which allusion is made ?

— I apprehend it is.

So did I, as well as everybody else, ap­ prehend.

Nobody could apprehend other­ wise than that the priest’s memorial was acted upon, and occasioned the case to be reconsidered, as the Chief Justice sup­ posed, and as the Lord Lieutenant’s mi­ nute denied.

Then he is asked, what other verbal communications there were ?

and he says he knows of none.


But I am not left to conjecture, as to whether or not there was some mistake in the minute of the Lord Lieutenant of the 29th of April, which at once puts the reconsideration upon a communication from the Attorney General; because the Attorney General, himself, has been examined to this point, and he not only denies all such verbal communications, but proves that it was impossible for them to have taken place.
He is asked, — Ila d you ever been spoken to on the case be­ fore the L ord L ieu ten an t spoke to you ?

— 1 do not think I ever had.


A re you quite certain you never volunteered any observations?------ The reason for using the term “ volun­ teered ” was, that the minute of the 29th of April implied that proceedings were volunteered by the Attorney General ; for it said, “ in consequence of verbal com­ munications and suggestions from the Attorney General.” A re you quite certain th at you never volun­ teered any observations ?
— Perfectly certain ; I never originated any observations, and know nothing about the case, further than having directed Bayly to be prosecuted, u n til I was spoken to, as I said, by the L ord L ieutenant, or his secretary, or some person connected with the G overnm ent.

D o you know any other cause for a second investigation o f the case, except priest G ahan’s m em orial?
— I do not know any other cause for a second investigation, except what I perceive from perusing the m inutes o f the L ord L ie u ­ ten an t to-day and yesterday ■— th at the L ord L ieuten ant had a recollection o f Ju d g e M oore’s previous report upon Connors’s case.

D id you know anything o f Ju d g e M oore’s report, except by its being com m unicated to you by G overnm ent?

— N ever; I never heard o f it till the papers came to me.
And it appears that Judge Moore did not make his report until the 11th of May, the reference to the Lord Lieute­ nant having been made on the 18th of April.

So, then, it was impossible that the reconsideration of Gahan’s case could have been owing to any communications from the Attorney General ; he declared that he never made any, — nay, more, could not make any, for he knew nothing of the subject.
But after all this, which made the matter quite clear, came a vague and deceptive answer, obtained not very fairly, from Mr. Drummond, who was asked a question which was calculated to deceive a cursory observer, though as­ suredly not one who understood the case.
Mr. Drummond, who knew nothing about the Attorney General at all, or the commu­ nications said to have been made by him, — was asked, by way of salving over the wounds made in the other parts of the evidence by the dates and facts given in that evidence, — H a d any com m unication been m ade to the L ord L ieutenant respecting the reconsideration of this case of Gahan, after the 6th o f A pril?

— I do not rem em ber that.


Upon a review of the whole o f the case in­ volving the com m utation o f G ahan’s sentence, would you say th at the L ord L ieu ten an t had A u g u s t 6 . ]

ADMINISTRATION OP JUSTICE IN IRELAND acted upo n th e rep o rt o f the A tto rn e y G eneral, o r up o n the m em orial in favour o f G ahan, sent in by his brother, the priest.
in But, then, the question was not as to the ultimate decision, to which, alone, this measure refers; for here the words “ had acted ” must be particularly ob­ served, because, on the *29th of April, the Lord Lieutenant had not commuted the sentence at all ; that did not take place until six weeks afterwards.
B ut the “ a c tin g ” alluded the previous to questions, on which the wrhole dispute turns, was the sending for the judge’s notes, in order to a reconsideration of the case ; the re-opening of the question already decided ; and the re-opening it upon the insolent, offensive, and slanderous letter of the priest, the brother of the convict.
The answer w as— “ T hat he acted upon the report of the Attorney General, of course.” B ut does not any one see that the drift of that question and answer would be to lead the mind of an inattentive observer away from the fact th at the decision, as to reconsidering the case, was not founded upon the A ttorney G eneral’s representations ?
The Lord in defending him self Lieutenant says, against the Chief Justice’s complaint, th a t the priest’s memorial had occasioned the reconsideration of the felon’s case.
“ We acted on the A ttorney G eneral’s suggestion, not on the priest’s memorial.” The A ttorney G eneral says, “ T hat is quite impossible, for I never made any suggestion at all.” Mr. Drummond says, “ T hat is impossible ; the priest’s m e­ m orial wras the thing acted on.” But, then, an insidious question is put, in order to confound this plain m atter ; and be­ cause the answer is, that, in commuting the sentence, not in reconsidering the case, the A ttorney G eneral’s opinion was taken and acted on ; therefore an attem pt — a desperate attem pt — is made to confound the two stages of the tran sactio n ,— the beginning with the end, the act of recon­ sidering with the act of deciding on that reconsideration, and so to make the state­ ment in the Lord Lieutenant’s m inute wear — falsely wear — the colour of fact.
The real fact is, — and no one can affect to doubt it, — that he had acted in the spirit and according to the letter of that strange m em orial which came from the priest.

The Chief Justice remained of his form er opinion : he had sent for the notes of the case, and re-exam ined them, but he was only confirmed in his opinion.
Yet, in the teeth of the deliberate opinion of the judge, — in the teeth of the previous de­ claration, “ L et the law take itscourse,”— and in despite of all that had since passed, trials, showing that there was no ground for a ; change of opinion, but that the judge was right in repeating his deliberate advice in j| favour of the law taking its course against || this atrocious criminal, — an appeal was |[ made from that judge, from the Lord | Chief Justice, who tried the case, — who [ had seen and heard the witnesses, — who | had sifted the evidence of the witnesses, | — who had seen the ju ry and charged the !
ju ry ,—who had approved of their verdict, i — who had deliberated on the sentence he I' pronounced, — who had twice over con- •; sidered it, and twice over deliberately*;: come to the same decision,— an appeat wras made from this judge, who was cog- !

nizant of the facts, who recollected the U ju ry and the witnesses, and whose mind was imbued with the whole particulars of I the case, whose authority wras paramount to dispose of the case,— from that reverend judge, who was the most able to décida !
aright, and who had repeatedly recon-1 sidered the case, and decided thereon in i the same way as at first, — from him w7as an appeal made to Mr. Attorney General, !

of the same sect with the priest, th e ' author of instructions respecting religious^ the!

and political opinions upon individual who gave the evidence to which j I have adverted already, wrho construed | his own instructions so differently to one j and another of his subalterns, — to him I who had seen no w itnesses,— wrho had!
seen no jurors, — who had heard no argu- ; ments, — who had given no consideration f to the case, — and whom all the evidence ' convicts, and more than convicts, o f 1 an u tter and hopeless ignorance of all the] particulars,— to him wras the appeal made, — from the knowing, the qualified, the*!

capable, to the disqualified and the igno­ ran t wras the appeal made ; and, as might!

wrell be expected, a decision was given,, I affirm itj utterly and absolutely wrong.
to be glaringly, and without any dispute,, wrong.

I will go further ; — let anyj twelve lawyers of W estm inster H a ll—J any twelve jurors in the country -— any] twelve men who never served as jurors,, and knew nothing of the practice of the law — have the case laid before them ; and if any one of those, understanding this case, has a shado'w of a doubt re ­ m aining on his mind upon reading the !
evidence — ay, reading the evidence of Sir Michael O’Loghlen himself,— I go not beyond his own evidence, — and I say, it any one being, who can read and under­ stand it, has the shadow of a doubt on his mind that, up to this hour, Sir Michael does not understand a tittle of the case, —j either cannot, or will not, I do not card which, — but, at any rate, docs not under J 14 HOUSE OF LORDS.
[ T u e s d a y , stand the case, — if any one of those twelve lawyers, or laymen, or jurors, or non­ jurors, will say he has any doubt that Sir Michael O’Loghlen does not — even now, after all his examinations — understand the case, — then I will say that I do not understand the case, that Lord Chief Justice Doherty does not understand it, and that all the Noble Lords who served upon the committee are plunged into the same hopeless incapacity to comprehend one of the plainest cases that I have ever seen in the course of nearly forty years’ professional experience.
To go through the details would be quite superfluous ; but with these I am, of course, ready : and if I shall see any attempt to set the opinion of the Attorney General against that of the Lord Chief Justice, in this case of Gahan, I pledge myself to demonstrate, although the ignorant man has reversed the judgment of the man acquainted with the case, that Gahan ought not to have been set free.
But he was allowed to go free, though he was one of the greatest criminals that ever disgraced humanity, for his intention was to commit m urder— he had laid a plan to commit murder — he thought he had committed murder — he gloried in having, as he believed,ef­ fected his diabolical purpose, and boasted chat he was a murderer.

Such a man was allowed to go free.


The Attorney General, who was ignorant of his case, reported In his favour, on the ground that, a year oefore, Judge Moore tried another party, named Connors, connected with the same outrage, — there being a doubt in that case whether the policemen were sober or not.

But the jury, notwithstanding that doubt- ?ul circumstance, returned a verdict of juilty.
The judge was so far satisfied of he prisoner’s guilt, that he pronounced ipon him the maximum of punishment vhich the law allows ; and no application vas made by him to the Government to liter the sentence, nor was there any :hange of opinion intimated, nor was here any hint that he doubted, until the government applied to him, in consc­ ie n c e of a memorial on behalf of the Prisoner from a county Member.
Then t was that he doubted for the first time, Ind reported to the effect that a ques- identity of the ion existed about the it nan ; which, (leant anything, was a doubt of his guilt, - and, in fact, was an acquittal.

But, hen, because he had this doubt, what fas the non sequitur ?

A free pardon o Connors, who was not guilty, but who ras mistaken for another man ?

No ; ut — that he should be imprisoned for welve calendar months !
Because he did in plain English, if not commit the offence, therefore he must be imprisoned for twelve calendar months,—the greatest punishment which, till a few years ago, the law awarded for the worst manslaughter !

I leave your Lordships to determine whether or not much weight is ascribable to the opinion of a learned judge who comes to such conclusions.

But if his mind be smitten with some strange want of apprehension, his malady seems to have been contagious ; it extended to the Irish Government.
There was a person, a Catholic, named Comyn, tried before Chief Justice Doherty for stabbing a Protestant ; he was found guilty, and sentenced to seven years’ transportation.

An application was made to the then Lord Lieutenant (Lord Had­ dington), who decided that the law must It appeared that an alibi take its course.

was set up at the trial, but the Lord Chief Justice left the case to the jury, as, in­ deed, it would have been left, whether an attempt to prove an alibi had been made or not.
But the remark of the late Baron Graham, that “ an alibi oftentimes turns out an i b i ” was here verified; be­ cause the evidence brought the offender into the immediate juxtaposition with very place, time, and circumstances of the offence.

The jury saw no alibi at all; but they saw that the attempted alibi only proved the case.

They returned a ver­ dict of guilty, and Chief Justice Doherty sentenced the prisoner to seven years’ transportation.
A second application was made to the Government, now ad­ ministered by Lord Normanby; and it was stated, in a letter from the Under Secretary to the judge, that his Excellency, having maturely considered all the evidence on the judge’s notes, arrived at the conclu­ sion, that, had he been one of the jury, — which he was not, and, probably, never had been on a jury in his life, — he would have believed in the alibi of the prisoner, and would have acquitted him altogether.
Therefore, it was not unreasonable to ex­ pect that his Excellency should come to the conclusion that the man should be set free.

But did he ?

No.

His Excellency, after the manner of Judge Moore, added, that, because he believed the man not guilty, therefore he directed him to be imprisoned for twelve calendar months.
So that, in Ireland, one man is imprisoned for twelve calendar months, because it is not proved that he, rather than some other man unknown, committed the of­ fence charged against him ; and the other, because he is proved to have been absent from the place at the time the offence was committed.

; This, I surely do think, is the strangest manner of administering A u g u s t 6 . ]

ADMINISTRATION OF JUSTICE IN IRELAND.

15 criminal justice that any human being ever heard of in this world.
But though the Lord Lieutenant falls into Judge Moore’s inconceivable error in Comyn’s case, he sees the absurdity in Connors’s, and sets him free.

My Lords, let us now consider the dif­ ference in the conduct of Sir Michael O’Loghlen, with respect to the case of Gahan, and that of Mr. Slye.
The A t­ torney General said that nothing could have induced him to put Gahan on Ms trial after Connors’s liberation ; and now let your Lordships follow me for a few moments, that you may see the very different mode in which Slye was treated.

A certain priest, Walsh, it was stated, had fallen from his horse, while galloping along on his way from a m arket, and was found dead; and what was the result?
He was a Roman Catholic priest ; and forth­ with a cry was raised that he was a m ur­ dered man, — it was impossible that he could have died a natural death.

No evi­ dence, however, for a long time, could be obtained that W alsh had been murdered ; but at last the Roman Catholic priests took an active part in the m atter, and a clamour was raised that Mr. Slye, a gentleman farm er, and a Protestant, had murdered the priest.
Mr. Slye, beside being a P ro ­ testant, had made him self rather active, politically, in his county.

A gentleman of the bar — a Queen’s counsel — was sent down to investigate the case, and to col­ lect evidence.
Ann Rooney was brought forward, and swore, in the most positive term s, that she saw the priest m urdered ; but th at evidence was as positively con­ tradicted ; and it was proved, beyond the possibility of doubt, th at she could not have seen the priest m urdered, because she was, herself, confined in gaol at the tim e when she declared that she saw Slye m urder W alsh.

But was Slye let oft'?

No such thing !


I f I had been the A ttorney G eneral, — if I had instituted these proceedings against Slye,— if I had placed Rooney in the position of being examined before a m agistrate, — and if I had seen her evidence thus disproved, — I should have opened my ears very reluc­ tantly to any witness of a similar stamp, who came to tell a story so direct as to carry along with it the strong m arks of improbability.
B ut Sir M. O’Loghlen produced, or at least received — 1 will not say welcomed — another witness of the same stamp.

Thomas Corregan swore he had heard Slye confess that he had m ur­ dered the priest.

There was, of course, no im probability in th at statem ent, — no reason to doubt that Slye had confessed himself, in the hearing of a witness, guilty'of this murder !

Such was the very | improbable story of Corregan.

But was | it disbelieved?


Was it refused to be [I acted upon by Sir M. O’Loghlen, who II would have declined to try Gahan because n Connors had been lialf-acquitted ?

No jl such thing !

The Attorney General was still desirous of putting Slye on his trial, il though not on the evidence of Rooney, or | of Corregan, nor even on the report off Mr. Tickell.

H e sent for Corregan to i| examine him, as one of his subalterns, I Seed, swears, and as he him self says, to | have him examined at Dublin ; — and !
what was the result of that examination ?

!j Sir M. O’Loghlen said, “ Let us get, if I possible, other evidence to produce against | him.” Very proper, and very just.

S till,!

Slye was put upon his trial ; Corregan j was produced as a witness, and other witnesses were brought forward whom ; they did not dare to examine, or even to show; and yet all the world knew, before­ hand, that Corregan, the only witness whom he did produce, was not to be re ­ lied on.
And why do I say that the A t­ torney General showed a want of confi-: dence in the evidence of Corregan ?

In the first place, he must have doubted the* story put forward by Corregan, that he had heard Slye confess the m urder of W alsh ; and, in the second place, from his second examination of Corregan, he m ust have been persuaded that he was not to be trusted, because he said that he wanted other evidence.

B ut that is not all ; he had actually sent down a?
short-hand w ritei\to take C orregan’s evi­ dence on the trial, because it was ex -1 pected that Corregan would perjure him ­ self, and he wanted to be provided with' evidence to convict him of perjury.

They; tried Slye on the evidence of this m an; they relied on his evidence; and Slye was* acquitted, because the witness was guilty of the grossest prevarication.
A witness was produced, who, it was allowed, was not to be trusted, — who was expected to perjure himself,— and whom the A ttorney G eneral so much doubted, as to send a short-hand w riter in order to obtain evi­ dence to convict him of the perjury which he expected him to commit.

No wonder that the A ttorney G eneral distrusted Cor-' regan.
I t was proved that he had gone to a police officer named Patterson, anc tam pered with that officer to correct hit day re tu rn s; because those returns woulc have proved that Corregan was in the barracks at the time he swears to hear­ re­ ing Slye’s confession.

fused to alter his returns ; and what was the result ?

He was dismissed from his office.

Patterson presented a memorial Patterson 16 HOUSE OF LORDS.

[ T u É â M Ÿ , tried, and desiring asking to be to know the reason which led to his dis- .
missal.

No trial, no explanation was, however, granted ; even though the ma­ gistrates under whom he acted approved of his conduct, and strongly recommended his memorial for consideration.

I do trust that some account of this extremely ■strange dismissal will now be given.

All 'that we know at present is, that a man !has lost his place and his bread, because 'he refused to be a party to suborn the -'perjury plotted for destroying an innocent iman, under colour of law.
There might íhave been some just reason for the dis- ’missal of Patterson, not connected with -this subject, but the case certainly re­ quires explanation ; and even although (sufficient reason could be shown for that the case of Slye would not ‘dismissal, *be affected by it in the smallest degree.

1 Strong recommendations were made to iMr.


Maloney, not to put Slye upon his (trial on the evidence of Corregan ; but ‘that gentleman persisted, saying that his (orders from the Attorney General were ^peremptory.

Compare his evidence with tCaptain Vignolle’s.

read his second ex­ am ination especially, and there can, on N;his, be no kind of doubt.

Nor was it to fbe wondered at that those recommend­ Patterson’s state­ ations were made.
smen t in regard to Corregan had become fjknown; and so suspected was Corregan iof an intention to commit perjury, that -the Attorney General (wisely, as it proved) • resorted to a step which 110 English coun­ s e l would have dared to adopt,— that of jseeing, privately, the witness he meant to [call, according to Seed’s evidence ; that • of making another King’s counsel see ?the witness, according to his own ac­ count.
But it is also found that he isent a short-hand writer, in order that tiie might have evidence to convict his 'own witness of perjury.

Yet, under such icircumstances, the Attorney General al­ lowed the case against Slye to go on ; and Kvhat was the result ?

Slye was acquitted.

;I need hardly add, that there was not a [tittle of evidence, that could be relied on, In the justice of that ac­ >to convict him.
quittai, I fully concur, as all men must : ,it is now generally acknowledged that the iverdict, so much attacked, at first, by the rpriests and their mob, was a proper one, rand the only one that could have been •given.

Even the Roman Catholics, once tso vehemently excited against it, and /against Slye, are now convinced that the pease against Slye was a fabrication from [beginning to end.

But, although Slye iwas thus justly acquitted, what became of vthe witnesses who were produced on his trial ?
They failed to convict Slye ; but Slye did not fail in convicting them.

Ann Rooney and Corregan were put upon their trial for perjury; and in connection with that trial, there is a circumstance which may be worthy of your Lordships’ atten­ tion.

Was the charge of perjury laid upon the informations which had been sworn by these infamous persons ?

No : by a somewhat suspicious fatality, those in­ formations were not to be found at the time of the trial.
They had, it was said, been taken from the office of the Crown solicitor, and, it was believed, by the friends of the parties charged with per­ jury, because the Crown solicitor’s office had been besieged by the priests during Slye’s trial, and before it, and the in­ formations had never appeared till the appointment of your Lordships’ com­ mittee, when it was stated that they had been found one day by one of the clerks.
Those informations, then, were not pro­ duced at the trial; and Corregan was not, in consequence, tried on the evidence contained in them, but on the evidence of of the short-hand writer’s notes, who had, with a provident caution, suited to his knowledge of his witnesses’ character, been sent down by the Attorney General.
This perjured murderer — for he was no­ thing else, who attempted to swear away the life of an innocent man — was tried on those notes, which were made by the precaution of the Attorney General.

Rooney and Corregan were both convicted of perjury, and were sentenced to be transported for life.

Such is the case of Slye; —such is the difference betwreen the treatment, by the Attorney General, of Gahan, and of Slye.
When I consider the conduct of the Chief Justice, and compare it with the conduct of Sir M. O’Loghlen, I can have no hesitation in concluding as to who acted with most propriety, and with the greatest regard for justice.
I hold it to be clear that the proper course to be taken in applications for mercy is, to consider maturely, and to weigh calmly, the whole circumstances of the case ; and I will say, also, that the case should be considered with all the aids and with all the lights which can possibly be obtained, in order to arrive at a sound determination.

I am of opinion that all such applications should be considered with the assistance, the invaluable assist­ ance, of the judge who tried the case.
The1 judge has seen the criminal,—he has exa­ mined the case,— he has seen the ju ry ,— and, above all, he has seen the witnesses, — and if any one think that any A ttor­ ney General, any Crown lawyer, or any lawyer whatever, is able to form a better A u g u s t 6.]

ADMINISTRATION 01?

JÜSTICË IN IRELAND.

or safer opinion, as to the merits of an application for mercy, than the judge, I may marvel at such a man’s confidence, but I cannot envy his soundness of ju d g ­ ment.
Again, my Lords, I am clearly of opinion that, to treat a judge as Lord Chief J u s ­ tice Doherty has been treated, was to m ake a black m ark against his name,— to stam p him with a m ark of degradation before his fellow judges ; and, before the profession, to declare to every counsel, to every lawyer, to every clerk, and to every apprentice in every attorney’s office, that the Chief Justice is not: to be treated as if he were one of the K ing’s judges; and that, while allowed to bear about the K ing’s commission as a badge of honour, as a m ark of authority, as an emblem of power and of justice, he is all the while to be scorned and reviled as unfit to exer­ cise his high functions, and as unworthy o f having any one case which he has tried sent before him for his consideration, when an application for m ercy is made.
Such treatm ent of a judge I hold to be m ost improper, most unwise, most unjus­ tifiable, and most indecent.
I f the judge erred, — if he did wrong, — if he be ob­ noxious to censure, — let him be brought to his trial ; let him be put on his de­ fence ; or let Parliam ent be called upon to address the Crown, and to ask for his rem oval ; but, as long as he is allowed to hold his commission, and to exercise the high functions with which it invests him , it is utterly unjustifiable, — whether you consider the sanctity of the law, or the venerable aspect of the representative of justice, — to treat him as a criminal, while you suffer him to fill the office of a judge.
The adm inistration of the law can sustain no such injury as thus degrading, for some miserable party purpose, the sacred cha­ racter of its oracles.

I now come to that p art of the subject which relates to the granting of pardon ; and in the observations which I have ad­ dressed to your Lordships, I have already, in some degree, anticipated what I have to say on this im portant head.
I have, no doubt, passed over some m atters which are perfectly fam iliar to my Noble Friend (L ord W harnclifte) ; but I have thought it rig h t to direct your attention towards those m atters which bear upon the result, and touch the principle, rather than to any particulars unnecessary to the case.
I will now deliver my opinion to your Lordships, as to the high power of granting pardon, vested entirely, by our constitution, in the Sovereign, for purposes of para­ I t is not a power con­ m ount im portance.

j !

fided to the Sovereign merely for the g ra ti-[I fication of feelings, however praiseworthy*!

those feelings may be; much less to be!

wielded arbitrarily, or under the guidance'll of personal caprice.

W hen the m onarch,!!


clothed with the high functions of his I office, exercises this ancient prerogative, I he may not, without mature consideration, \ yield even to the most amiable of his feel­ ings, and allow a love of mercy to over­ come a sense of justice.
He is to act with a due regard to justice, and to mercy also : : but mercy is not to be exercised till the: whole facts of the case are ascertained ; for the knowledge of all the facts ought, [• above all, and before all, to preside over’ In truth, the adm inistration of mercy.
the attribute of mercy forms a p a rt, only,’ of the function of justice ; for the law, if executed in all its inflexible rigour, would become odious and intolerable ; an occa­ sional mitigation of its awards is, there­ fore, necessary to its existence.

But, it is after due inquiry, — it is by regular means, — it is in solemn form, — that this attribute m ust be displayed to the people.

!
!

The throwing open of prisons at coro­ nations, and liberating prisoners confined for small faults, — and it is only persons' guilty of small faults that ever w ere1] liberated on such occasions,— and thei jubilee pardons of other days,— though : most of those pardons were granted with!

the sanction of the Legislature, — are| practices now obsolete, and which have been expunged from our constitution and its operations, with other traces of a more barbarous state of society.
I know not th at I need trouble y o u r1 Lordships with any authorities to sup­ port these positions, or to illustrate the mode in which the prerogative of mercy should be exercised; but perhaps it will not be out of place to quote a few opinions of men whose sentiments are entitled to the greatest deference, as the fountains of our jurisprudence, and best expounders of our mixed constitu­ In the first place, I will quote tion.

the authority of Staunford, which shows,!


in the clearest manner, the sense of!

the law7 on this subject.

Staunford says, that the Sovereign ought to have the power of pardon ; but that the power ought to be exercised only when it can be done without violating his coronation oath, by which he swears to administer!

justice with mercy.

The Statute of N orth-j ampton also defines what the cases are in which m ercy can be exercised.

Homicide, in self-defence, and homicide by accident, are alone specified.
The preamble recites the abuses of the prerogative of pardon, 18 HOUSE OF LORDS.

[ T u e s d a y , and restricts it in future to these cases.

Bracton also says that investigation should go before pardon.

He observes, — E t licet tu tiu s sit reddere rationem misericor- diæ quam judicii tam en tutissim um est palpe- bras ejus ito procedere gressus suos, u t judicium suum nec vacillet per incircum spectionem — nam cum indulget judex insigni delicto, nonne ad prolapsionis contagium provocat universos ?
In the same way, Lord Coke, in his Third Institute, says, that there are three modes of preventing crime, — which, he justly adds, is always better than punish­ ing : the first of these is good education ; the next, the execution of good laws ; and the third, that pardons shall be very rarely granted, and only granted on the reasons assigned, — that is, after full and deliberate investigation.
Last of all, Mr. in his well-known Serjeant Hawkins, work on the Pleas of the Crown, makes use of these remarkable words : — T his is very agreeable to the reason o f the law, w hich seems to have intrusted the K in g with this high prerogative, upon a special confidence th at he will spare only to those whose case — could it have been foreseen — the law itself may be presum ed w illing to have excepted out o f its general rules, which the w it o f m an cannot pos­ sibly m ake so perfect as to suit any particular case.
Having seen, then, what are the prin­ ciples which should guide the exercise of this high prerogative, it becomes your Lordships to inquire whether there are not some circumstances connected with the late administration of this prerogative in Ireland, which call on your Lordships, by way of future example, to declare what is the mode in which mercy ought I t appears, that per­ to be administered.
sons to the amount of 240 were dis­ charged by verbal order, in the course of a progress which his Excellency the Lord Lieutenant made through part of Ireland, in the summer of 1836.

The evidence on this point is contained in pages 253.

256.

346.

461.

469. and 905. of the Report.

The course of proceeding was this ;— his Excellency came to a town, and visited the gaol, attended by the gaoler, and followed by a great concourse of people.
He then had the prisoners — or, I should rather say, certain of the pri­ soners — drawn up, and paraded in the prison ; and those prisoners were such as the gaoler chose to recommend for liber­ ation.

But there were very often many pri­ soners left behind, whose cases were not considered at all.

This, for instance, was the case in the gaol of Clonmel, where 57 prisoners were discharged, and 200 left in the gaol, without the least inquiry into the circumstances of their conviction.
Everything, therefore, depended on the fia t of the gaoler.

Your Lordships will now observe in what manner the judgment of the gaoler was considered, and to what extent it was reckoned decisive.

The gaoler stated that he recommended several prisoners to the Lord Lieutenant for dis­ charge, and that his recommendations were adopted.
He stated that the chap­ lain of the gaol was there, but the gaoler did not know whether the reverend gen­ tleman was asked if he could recom­ mend a prisoner for discharge, or not.

He, however, interposed in one case, and it was lucky that he did so ; for it had happened to him to be present at the trial of two of the men who were recommended to be discharged ; and it appeared that they had been found guilty of man­ slaughter under circumstances very nearly amounting to murder.
This the chaplain, whose name was, I believe, Bell, repre­ sented to the Lord Lieutenant ; and his Excellency, very properly, attending to the representation, the men were not dis­ charged, but remained in prison, and were transported for life, according to their sentence, instead of being set free in consequence of his Excellency thinking they were well-behaved men, and suf­ ficiently punished.
There was another person, named Dee, who was under sen­ tence for an assault, whose discharge was recommended, but who was, nevertheless, not liberated by the Lord Lieutenant.
The account which the gaoler gave of it was illustrate the this, — and it serves to power and prerogative of gaolers on those occasions : — H is Excellency, at the last section o f the N ew H o u se o f Correction, turned round and said, “ Now, M r. Prendergast, if there is any other m an you would name, I would discharge him on your " recom m endation.

” I tu rn ed round and saw a m an o f the nam e o f D ee, whom I con­ sidered a well-behaved m an ; he had been about eighteen m onths in gaol.
I m entioned his name, and R yan stepped up and said, “ M y Lord, 1 beg leave to differ with M r. P rendergast about him ; ” and I was so confounded I could not speak, — the m an came forward in such a way.
Mr. Prendergast was, very naturally, confounded, when he had just been in­ vested with the prerogative of mercy by delegation from the Viceroy, that it should be suddenly, untimely snatched out of his hands, in this way, by an obscure in­ dividual like Ryan, R yan said, when he was overseer o f the works I assured he had a com plaint against the m an.

his Excellency that I had never heard of it ; — and, therefore, the oifence was not com­ mitted, I suppose.
R yan said he had been obliged to punish him ; and his Excellency was kind enough to say, if A u g u s t 6.]

ADMINISTRATION OF JUSTICE IN IRELAND.

1 19 | th e m an c o n tin u ed to behave w ell a couple o f m onths, he w ould discharge him .

W h en his E x c e lle n cy w ent away, I was so confounded at th is m an ’s com ing forw ard, I felt very uneasy.

I w ent to the p u n ish m en t book, and th e m a n ’s n am e never appeared u p o n it.
The consequence of all this was, that whoever the gaoler recommended— unless somebody happened to be present who thought proper to interfere, like this of­ ficious and meddling individual, Ryan, which, of course, very rarely happened — was sure to be discharged.

Now, an a t­ tem pt was made to show that many of the persons liberated were afterwards re­ committed for other and subsequent of­ I will not go into this question.

fences.

My objection to the wrhole proceeding lies much deeper.
I care not, if every one of the discharged prisoners has, ever since, led an irreproachable life.

Nay, I care not if every one of them w as altogether deserving of mercy.

In this instance, there were 57 persons discharged from the gaol at Clonmel ; and, of these, only 2 appear to have been recommitted.

B ut there is another gaol,— the gaol of W est­ m eath,— from wrhich 19 prisoners were discharged ; and, out of these, G have been recommitted, 2 of whom have been trans­ ported for life.
Now, the difference be­ tween the proportions of 6 in 19, and 2 in 57, only shows how necessary it is to act upon the sound and recognised principle for which I have contended.

In Clon­ mel, nearly all may have been, in some degree, deserving of the clemency ex­ tended to them ; but, in W estmeath, the proportion o f prisoners who were re ­ committed shows th at is extremely unsafe to act upon the recommendations of a gaoler.
In the Clonmel case, how­ ever, not only was no judge consulted, but the time taken up in the examination of the prisoners was som ething of the shortest, — to say the least of it.

All was done in an hour or two, during the Lord L ieutenant’s stay in Clonmel.
The time spent by his Excellency in the gaol has been stated by the witnesses as not more than one hour and a half; of that short space, half an hour was occupied in moving from place to place, and the rest was employed in considering the cases of the prisoners.

Less, therefore, than one hour was given to examining 57 cases, — somewhere about one m inute for an inquiry into all the circumstances of each case, including the conduct of the indi­ viduals.
M any of these, too, were very In one instance, the party heavy cases.

had been convicted of receiving stolen goods to a considerable am ount ; in an­ other, m anslaughter had been committed : it but they were all discharged, because th d | gaoler said they had been well-behaved!

in prison.

One wras sentenced to nineteen!

months’ imprisonment, with nine months’!

hard labour; the other to a year’s im JI prisonment, and six months’ hard labourJI B ut his Excellency acted on the gaoler’s!
statement, that they were well-behaved!

men.

Now, I do not profess to under-1 stand this principle.

The good behaviours might be a reason for not treating them !

harshly while in prison, but it is no grounds for letting them out of it.

The rule fori liberating prisoners, confined for crim es| under sentence of a court, is this, — this the only legitimate ground onH granting pardon ; — either it is found,!

after the trial, that the conviction was!

erroneous, from facts not coming to the!


knowledge of the court and ju ry which!

have since been discovered ; or it appears-; that the sentence was too severe, from!

m itigating circumstances having come out- after trial, which, if known at the time, j would have lessened the sentence.

is The M A R Q U ESS of NORM ANBY.—I Persons may also be liberated on t h a 1 ground of ill health.

LO RD BROUGHAM .

— Oh, yes !

if they are too ill to undergo the punish J In fact, thej ment, that is a clear ground.
sentence always contains an implied con-J dition th at the prisoner shall be able to undergo it.

These are the ju st grounds of pardon ; and not that the convict has behaved well under his sentence, — much less that a Viceroy has, by mere accident, visited the town w'here the culprit chance^ to be undergoing the punishment awardee by the law.

I know that an opinion prevails in some quarters,— an impression, rather!
for it m erits not to be called an opinion,— th at there is all the difference in the work between the course which ought to be p u r­ sued in pardoning, and that which is righ in convicting, — th at we should be slo\> to convict, and swift to p a rd o n ,— that we do no harm at all in rashly and incon-j sistently rescinding a sentence, though w A cannot be too averse to pronounce it ; ill short, th a t the pardon being to undo thd sentence, the granting it should be re4 gulated by principles the very reverse oj those which guided the infliction of thd punishm ent.
N othing can possibly bJ more thaij thoughtless, more absurd, this notion.

T here not only should b i the very same deliberation in the act oj pardon as in the act of punishing, buj the self-same principles which demand ij in the one case, equally demand it in thJ other ; nay, if deliberation be not used IÍOUSE OF LORDS.

[ T u e s d a y , that it might have been avoided ; con- n rescinding the sentence, a clear con­ fession is made that the sentence itself vas wholly unjustifiable.
For, observe, he infliction of punishment has, and can inly have, one justification, — the inevi- able necessity of the case.

We have no find of right to punish except that we ire compelled to do so by overruling ne­ cessity ; we do not punish, because we Ire pleased to do so, — because we choose 0 do so,—but because we must do so, and If so, what right can we ;annot help it.

lave to remit the sentence — the neces- ; ary sentence — the unavoidably necessary entence ?
Our remitting it without an iqual necessity, at once confesses that here was no necessity for ever passing it — equently, that to pass it was wholly un- ustifiable.
This plain consideration shows, ro absolute demonstration, that he who re­ scinds a penal sentence without necessity, idmitsthat it had been pronounced without liecessity; and, therefore, that the very 1 ame deliberation is necessary before par- loning which was required before con­ temning, and is necessary for the same I f the judge was right in con­ i’eason.

demning, he could not avoid it ; he was :ompelled to condemn.
If the Crown )ardon without sufficient cause, the judge itands condemned, who condemned the )ffender.

A rash and inconsiderate par- lon assumes that the judge rashly and nconsiderately sentenced.

This proposi- the least re- iion is wholly irresistible ; llection proves it at once.

But I need lardly resort to principles such as lie iaearest the surface of this great argu­ ment, for illustrations of the gross ab­ surdity which has been committed.
Can ;here be anything better calculated for lolding out a premium to offenders, “ ad orolapsionis contagium universos provo- :are,” as old Bracton has it, than for criminals to know that, if a Member of Parliament, or an agitator, or a body of ;nen connected with the Government by ■:ies of any description, make an appli­ cation to the Government on their behalf, ;hey shall, without any consideration of ;he case at all, receive its favourable con­ sideration ?
The law loses its authority, the right arm of justice is paralysed,— ind the administration of criminal juris­ prudence ceases to be ?

:espectable, or even tolerable, if mercy is to flow without de­ liberate judgment on tl}e part of those \who stand by its sacred fountains, and jiirect the flow of its blessed stream.

In ,ill this, I do not mean to say that any­ thing more than an error in judgment has ■been committed.
I make no harsher charge ; it is the “ incircumspection,” de­ nounced by the lawyer of the Plantagenets, with which I charge the executive Go­ vernment of Ireland.
They who should have deliberated, paused not at all ; they who should have judged, deliberated not at all ; they who should, themselves, have acted, judged not at all ; they dele­ gated to others the prerogative intrusted to themselves ; and the appeal was made from a judge and from a jury, not even to an Attorney General, or a Crown solicitor, but to a gaoler — one of the lowest, though one of the most useful, officers of the law.
Nor will it be wise to rest the discharge of a prisoner, not on the circumstances of the trial, but on his treatment of the gaoler and his servants, while an inmate of the gaol.

It should not be kept out of sight, that the persons who have been most often committed to prison, are oftentimes the best behaved within its walls.

The wild bird will flap her wings against the bars, when the tame one, born and bred in slavery, will never touch a wire of her cage with a feather of her pinions.
But if the prerogative of mercy is to be not only delegated to an Attorney General sitting in appeal from the Lord Chief Justice, and to a turnkey sitting in appeal from the Lord Chief Justice, — if it is to depend on the mere precarious accident of a Viceroy going to one town rather than another in the course of his tour, — then, I ask, if justice, of which mercy is a part and an attribute, can be dispensed upon fixed principles, and if the established rules do not more depend on the personal caprice of one man, or the accidental direction given to the course of another ?
These things, however, have not only been passed over without observation, but there are remarkable passages to show that they have been sanctioned, approved of, commended, thanked, and adopted by the Government at home.
I say nothing of the more recent adoption of them, im­ mediately before this inquiry began, — I say nothing of that judicious, deliberate, calm, legislative act of a grave authority, — the national senate, — the Commons of England in Parliament assembled, — whereby, having heard that an inquiry was just instituted, but was not begun, — whereby, having asked for information, and having received information in pro­ mise, but before one tittle of it had been produced, much less considered,—the Com­ mons, on this express ground, that they had not proceeded to inquire, and that no man living could tell what the results of the inquiry might be, — that grave and venerable body, the representatives of the people of England and Ireland, did pronounce, though by a narrow majority, A u g u s t 6.]
ADMINISTRATION OF JUSTICE IN IRELAND.
2i made up of the representatives of Ire ­ land, — for, glorying in their shame, they have published their names in their votes, — they, the Commons, because the in­ quiry was pending, in utter ignorance of the facts,— for they could not tell, without the gift of prophecy, which they did not affect to possess, what might be the result, — pronounced a verdict of acquittal and approval beforehand, deeming it more ra­ tional and decorous that judgm ent should precede trial,— that inquiry should follow, not go before, the formation of opinion.
O f this marvellous passage in our recent parliam entary history, I say nothing.

It is unprecedented in the annals of the Plantagenets and the Tudors.

B ut I may, in passing, express my satisfaction that the like course has not, as yet, been p u r­ sued on other m atters, to which it would be ju st as appplicable.

Happily, the Com­ mons have not, as yet, drawn over to them ­ selves the decision of any causes in which your Lordships are engaged as supreme judges of appeal from all the courts of the realm.
As yet, the Commons have not taken possession of any case, interesting to their constituents, and passed a vote thereupon, while you were about to hear it argued before you in order to form a deliberate opinion upon its merits.
How long it may be before this course shall be taken, and the principle of the astound­ ing vote in April acted upon in cases wholly judicial, as well as in one almost wholly judicial, I cannot pretend to fore­ see ; but this I know, full well, — that not one tittle of a reason can be conceived, why they should not pass a vote, by an­ ticipation, in any one cause now pending before your Lordships, if they were right, if they acted rationally, in anticipating the decision of the Irish question, before a single witness had been sworn by you, o r a single one of the documents called for by themselves had been produced.
Not one distinguishing circumstance can be pointed out in the A uchterarder case, which has flung all Scotland into the most violent ex­ citement, or in Lady Hewley’s case, which still agitates the N orth of E n g lan d ,— not one distinction can be drawn between these questions, and the one which the Commons were pleased to decide upon before either you or they had considered it, — except only that England and Scotland feel a deep interest in the one, and Ireland in the other.
The act of passing a vote (though, I admit, by a very narrow m ajority) in the one House, on a case about to be examined by the other, — a case which both Houses had resolved to investigate, but which neither had taken one single step to con­ sider, — is precisely the same in point of justice, reason, common sense, and com­ mon decorum, in the instance which has: happened, and in the case, only a veryi little more monstrous, — hardly at alL more outrageous, — which I have put, ast no longer beyond the bounds of proba-j bility.
But it is not that act of the Com-i mons to which I now allude.

That branch of the Legislature, at the instiga4 tion of the M inisters, without any de­ liberation, — nay, before entering upon the deliberation they were pledged by their last preceding vote, — pronounced a sentence of sweeping and unqualified approbation of all the acts of; the Irish Administration for the last four1 years.
This, of itself, would, indeed, ] impose upon your Lordships the necessity- of guarding the pure and decent admini-| stration of criminal justice against future invasion and corruption, by a resolution sych as I now propose.

B ut I am, now, referring to an approval by the sanction of another branch of the Legislature,— the Crown.

to which Parliam ent was dissolved on the 17th of July, 1837.
On the 18th of July, there j was issued a letter, signed by the Secre­ tary of State, addressed to the Lord L ieu­ tenant.

The substance of that letter m ight J from all that appears, have been very well communicated to him by word of mouth ; the Lord Lieutenant was in this House on the 11th of Ju ly ; on the *21st, he was at the drawing-room ; and he went back to Dublin on the 24th ; and he could hardly have returned here, and gone back to Dublin, in the interval.
It is clear, then, that his Excellency was here when the letter was written, and m ight have received the contents in an interview or an audience.

Notwithstanding, the letted was w ritten on the 18th of July, for, as it is said, liter a scripta m a n e t; so lit era scrip- ta is capable of being fixed to walls ; and so was it affixed, both in the N orth of Ir e ­ land and the South of Ireland, while the elections were in progress.
In the letter* certainly used, most probably intended, for election purposes, it was stated that her M ajesty had been pleased to express her entire approval of the Government of the Lord Lieutenant, her desire that his con­ duct should continue to be guided by the same principles, and her promise to sup­ port him in such a course of proceeding.
This was a most complete, sweeping, and general approval of all that the Lord Lieutenant had done ; and, among other passages of his conduct, it was an ap­ proval of all th at which is described by the expression of going behind the backs of the judges to deliver the gaols filled by I t was an ap- Iheir solemn sentences.
C 3 ï22 HOUSE OF LORDS [ T u e s d a y , iproval, also, of his calling on the A t­ torney General and the Crovvn attorneys £o sit in judgment on the decisions of the judges; — it was an approval of the de­ legation of the pardoning power to the gaolers by the Viceroy; — it was an entire ^sanction and approval of that which was a [common part of the Irish Government’s •conduct, — namely, the delivery of gaols ■tin the manner I have described, through the accident of a Viceroy taking one road •rather than another, in his vacation tour p f business, of relaxation, or of pleasure.
••The Ministers, therefore, are now the • parties whose conduct is in question ; and ■-their adoption of the Lord Lieutenant’s proceedings not only makes them accom­ plices in it, but makes your Lordships ■ accessories after the fact, unless you at pnce record your dissent.

!

< There is another reason why your Lord- i.ohips should express an opinion on this iisubject,—and it is equally a reason why the I expression of that opinion should not be I,delayed till next Session.
Chief Justice Doherty is, while we yet speak, carrying iLhe Queen’s commission over Ireland ; he ks going the circuit, trying indictments, [tmd sentencing criminals.

But the black Lanark remains against his name ; he lies under a stigma ; he must be washed clean, lieven if that offence committed against him should not be repeated.

He must be vin­ dicated — justice, in his person, insulted, must be vindicated — from past outrage ; tind all future insult must be prevented.
iThe present Lord Lieutenant must have an intimation given him, that his course be guided by different principles.

Your Lord­ ships will recollect that the Noble Lord, now Viceroy, declared, in his place, his determination to tread in the steps of his predecessor in office.
Therefore, if he be resolved to tread in those steps which parried the late Lord Lieutenant to the ■Attorney General in Gahan’s case, rather .Ehan to the Chief Justice,— in other cases |i|o the Crown solicitor, rather than to the venerable judge that tried the prisoners, 3— and, in Clonmel, to the gaoler, and vîven to the turnkey, — it is high time tLord Ebrington should be told that this is aot.

the mode in which the functions of i-nercy should be dispensed under the law and the constitution of England.
[ These are the grounds on which I have iielt it indispensably my duty to bring the jliase before your Lordships, — presenting jit in a shape which would enable you to find ;:he needful remedy for the mischief that It is absolutely necessary ,aas been done.
jthat I should persevere, deeming, as I do, ■Uiat the highest of all the functions exist­ ing in any of the powers in the state, — that the most important of all the offices of the Government, the highest preroga­ tive of the Crown, and the most sacred right of the subject,— is the due admini­ stration of justice ; and that abuses in any manner of way connected with the ad­ ministration of justice, are of importance paramount to all other questions ; deem­ ing, as I do, that if no steps be taken — and promptly taken — by your Lordships, to express an opinion of the true mode in which the executive Government ought to discharge those exalted duties, you will again and again see mercy exercised, not according to established principles and fixed rules, nor restrained within intelli­ gible limits by a true sense of judicial and responsible discretion, but the mere sport of feelings more or less amiable, weak­ nesses more or less venial, caprice more or less guilty.
Unless, I repeat, some judgment shall be pronounced in this matter by your Lordships, you will again witness scenes like those which Ireland has lately displayed, of the highest pre­ rogative of sovereignty prostituted as an itinerant show — the pardoning power of the Crown used to grace the mere pageant of a Viceroy’s progress ; — and you will again see, in that pageant, justice and mercy change places and characters ; — mercy blind, and justice in tears !
If any among your Lordships shall think that it signifies nothing whether witnesses come forward according to the tenour and obligation of their recogni­ zances to give evidence so that crimes may be punished, — if there be any one who thinks that, in Ireland — (differing in this respect from England), criminals should be left to go free by the default of witnesses who hold back, and for that de­ fault only suffer ten days’ imprisonment, rather than that murderers should by their testimony be convicted and punished, — that individual will be prepared to vote against the first of these resolutions.
If, again, any of your Lordships hold that the most important element in the com­ position of juries — the right exercised, heretofore, in Ireland, of bidding jurors stand aside for just cause — ought not, in future, to be in existence, or be tem­ perately, discreetly, but fearlessly, exer­ cised for the public service, — if any of your Lordships hold that the connections of offenders, in point of crime, though not of blood, may act as jurors, — that persons who take part in the agitation and con* spiracy against the laws, which give rise to the offences, may sit and decide on their brother and perhaps minor offenders, — if, above all, any of your Lordships think that the instructions of the Government A u g u s t 6.]
ADMINISTRATION OF JUSTICE IN IRELAND.

liable third resolutions.
to its law agents respecting challenge of jurors need not be clear, intelligible, and uniform, but may safely be confused and various, left to the construction of every individual whose conduct they are meant in different parts of to guide, Ireland to different interpretations, and never the same to any two prosecuting agents,— then, whoever of your Lordships thinks so, will be prepared to vote against my second and If, again, any one of your Lordships be dis­ posed to vote against the fourth resolu­ tion, he m ust be prepared also to say that the judge should not be consulted in reference to the exercise of the preroga­ tive of mercy, — that those who have seen neither witnesses nor jurors nor prisoners at the trial are the fittest persons to say whether the judge’s sentence should or should not be carried into effect ; and he must, moreover, be prepared to affirm the monstrous proposition, — this outrage upon all justice, and all consistency, and all decency,— th at it is fitting to stigm a­ tise and degrade the office of the judge on account of a political or a personal differ­ ence between an individual high in office and the Chief Justice, — th at it is proper to leave men clothed in the ermine which they never defiled, while you m ark them out for contempt by the acts of G overn­ ment, and to let criminal justice be admini­ stered all over Ireland by men whom you stamp, by your treatm ent of them, as unfit to judge.
Finally, those Noble Lords who are ready to vote against the last resolu­ tion, m ust also be ready to say that mercy no part o f justice, and th at it signifies nothing how lavishly, how intem perately, how casually, how accidentally, how ca­ priciously it be dispensed; th at gaolers who execute the sentences of the courts should sit in judgm ent upon those sen­ tences ; th at they know better than the judges how far each culprit is worthy of mercy ; and th at the exercise of the pardoning power is not a m atter of grave and deep deliberation as a solemn act of state, but a thing to be played with at random ,—a freak to be indulged in caprice — an operation depending on the hum our of the hour, the tem peram ent of the in ­ dividual, the clam our of a mob, or the chance of a journey.
I have no fear that any one of these irrational conclusions will be adopted by those whom I now address.

I f there be any one thing which more than another deserves the anxious a t­ tention of this House, above all other tr i­ bunals, it is the thing, whatever it may be, that touches the function peculiarly appertaining to this assembly, — this su­ prem e ju d ic a tu re ,— this highest court of j justice in the kingdom.
Whoever has j 1 practised in our courts,—whoever has pre­ sided over them, — whoever has observed the mode in which the judicial business is ; carried on, — whoever has meditated onj the constitution of these realms, as r e - 1 gards its executive, legislative, and ju ­ dicial branches, — must be prepared to say, with me, that, of all the branches of ] our polity, the pure, correct, and inflex- i ible administration of justice is by far the « most important.
It is this great power, this prodigious clamp, which binds all the parts of our vast social structure toge­ ther.

I t is this great solid belt, which; guards and strengthens our whole system, — our great pyramid,—formed, as it is, oJ various and of discrepant materials, in; form and size differing from the lowest j and broadest to the most exalted and the ] most narrow.

As long as that m ighty !

zone which connects the upper and lower !


parts, while it strengthens the whole edi­ fice, remains unimpaired, you may well j disregard all the perils with which the j constitution can be threatened, in what quarter soever its assailants may be found, | or against what part they may point their attacks.
L et the Crown have all the lust of power that can inflame a ty ra n t— give it a venal House of Lords — give it an obsequious House of Commons — give it a corrupt Court, and a people dead to the the K ing’s love of freedom, — from Court at W indsor I will appeal to the K ing’s Courts at W estm inster ; thither I will flee for safety, to the remains of liberty, — and, in the sacred temple of justice, I shall find the impenetrable p a l-, ladium of the constitution.
Or let the danger come from another quarter.
L et there be a vacillating House of Commons, — a Parliam ent in which the people’s re ­ presentatives know not their own minds, dare not declare any firm or fixed opinion, but m utter resolutions which they cannot articulate — voting, now this way, by a narrow m ajority, and now that, by no larger a balance, — let the force of the constitution, thus neutralised in the one House, be concentrated in the other, so that the Lords shall seem to rule the whole, the mixed monarchy to be gone, the balance long vaunted to be at length destroyed, and an aristocracy to be ^ all but planted in its stead, — still, against the corruptions of oligarchy and the in ­ solence of patrician domination, I seel^ for shelter to liberty and protection tc impregnable bulwark ol right, in judicial power.
Or, again : if the dan-j ger should threaten from another quarj ter, — the quarter whence, certainly, it is the least to be dreaded, — if the pres j the 'A H O U S E O F L O R D S .
[ T u e s d a y , A u g u s t 6. ure should come from the swelling, and loosening, and cracking of the found­ ations, — if the “ fierce democratie ” jhould wield unsafely its powers, — if Jhe outrages of popular violence should Assail the fabric, — to its wild waves I frill oppose the judicial system as a rock fcgainst which the surge may dash — i.nd dash in vain.
Of that judicial sys­ tem, the assembly which I now address te emphatically the guardian ; with that Administration of justice, this House is Eminently, and in the last resort, intrusted Ay the constitution ; — and to you, there­ fore, my Lords, it is, that I now earnestly Inake my solemn appeal.

In all the diffi­ culties of our country, in all her perils, [he looks to you with the best hopes for preserving the judicial constitution by which she may surely be saved.
As often t,s any attempts can be perceived to break »lown this barrier, the growth of ages, — attempts slowly and gradually made, and, it may be, made without evil design, £-for, in the present instance, I impute o bad intention, nor anything more Ihan indiscretion, or excess of feelings ti themselves harmless, nor do I even ’uspect any unkindly or unamiable dis­ position, — still the inroad must be re­ sisted in the outset, and a solemn au­ thoritative declaration from your Lord- ehips must loudly promulgate the sacred Principles which have been violated, and Sternly warn against a repetition of the feiult.
Wherefore it is, that I have deemed a; my duty to press upon you the adop- lon of the resolutions which I now sub­ mit to your calm and deliberate consider­ ation ; and, on behalf of the British con­ stitution, — bound up, as it is, in the pure administration of justice,—I implore your lordships, this night, to pronounce upon ,liem your decision of affirmance.
I move "ou, — “ That, when persons bound over 2) give evidence in any prosecution shall tot appear, or shall refuse to be sworn, it li necessary, for the due administration of criminal justice, that not only their re­ cognizances should be estreated, and the :-enalty be levied upon them, but, in case ney shall not pay the same, that they Doukl suffer such imprisonment as may aampel them afterwards to give evidence, r may operate, by way of example, to leter others from failing in like manner : [ “ That it does not appear expedient, with :<view to the due administration of cri­ minal justice, that the exercise of the right titherto possessed by the Crown, in pro- fccuting cases of felony tried before the i tl a X courts of Ireland, of desiring persons called as jurors to stand aside, should be confined to the cases of such persons as are relatives of the defendant ; but that persons connected with the offence charged, by having previously expressed, strong opinions on the subject, or persons under the influence of the defendant, and of those who usually take part in his of­ fence, or persons who are notoriously of such life and conversation, or of such ig­ norance, as renders them unlit to perform the duty of jurors, may properly be de­ sired to stand aside until it be found that the full number of twelve, not falling within the above description, do not re­ main on the panel to try the defendant : “ That it is expedient to give instruc­ tions identically the same to the Crown solicitors and counsel conducting prose­ cutions in the different parts of Ireland, with respect to the general principles by which the exercise of their discretion, in setting aside jurors, shall be guided ; and to frame those instructions in a precise and distinct manner, leaving no room for misapprehension of their meaning : “ That it is the duty of the executive Government, when considering any case of conviction had before any of the King’s judges, with a view to remitting or com­ muting the sentence, to apply for inform­ ation to the
 judge or judges who tried the case, and to afford such judge or judges an opportunity of giving their opinion on such case, unless circumstances should exist which render any such application impossible, or only possible with an in­ convenient delay; but that it is not ne­ cessary that the executive Government should be bound to follow the advice, if any, tendered by such judge or judges : “ That the prerogative of pardoning all offenders in the conviction for which pri­ vate parties are not interested, and other than offences against the Habeas Corpus Act (31 Charles II.
c.

2.
), is a high, in­ disputable, inalienable prerogative of the Crown ; but that it is vested in the Crown for the purpose of aiding in the admini­ stration of justice, and is to be exercised so as best to attain that important object ; that it ought never to be exercised without full and deliberate inquiry into all the circumstances of each case and each in­ dividual ; and its exercise ought to depend on those circumstances ; and never, on the accident of the Sovereign, or his representative, happening to visit the place where an offender under sen­ tence may be confined.” that 2 5 R E P L Y .
LORD BROUGHAM .
— A t this late hour, and after the lengthened indulgence your Lordships were pleased to extend to me at the commencement of the debate, I need scarcely say that I shall trespass upon your time but very briefly ; and that I much wish I could relieve you and m y­ self from the necessity of my doing so at all, — the more especially as the symptoms of impatience, which were manifested during the able speech of my Noble Friend (Lord S tuart de Decies), afford sad warning of the waning night and the waning patience of the House, and give me, whose fate it is to come later still before you, a mournful presentim ent of the hard encounter that awaits me with your exhausted powers of attention.
There are, however, one or two points upon which I have been m is­ understood, or misrepresented, and on which, therefore, I feel it necessary to give some further explanation.

I t has been stated, that the Noble Marquess, on visiting some gaol, — I believe W ater­ ford, — m inutely examined the cases of all the prisoners who were confined there, those only to whom he and thought it was fit that mercy should be extended.
I, however, have seen no evi­ dence bearing out that statem ent ; and, certainly, with regard to another prison, he did not enter into a m inute investiga­ tion, — for instance no fewer than fifty-seven persons had their cases examined, and were discharged by the Noble M arquess, within one hour.

And I believe some such examination and re­ lease took place, also, in Sligo.
liberated that in the to alter As for my Noble and Learned Friend behind me (L ord Plunkett), he has en­ tirely misunderstood me ; for he seems, by the to your tenor of his address Lordships, to think that I am bringing in a Bill law of recog­ nizances.

Now, I do not complain of the law ,— therefore I have no occasion to propose any alteration in it ; but I do object to the m anner in which the law is executed.
We have evidence that the recognizances have been estreated ; that the sheriff attem pted to levy ; but that he could not levy, because the parties bound had no property ; — they were of the same is ju st so much class of persons as the offenders, and they had little or nothing on which to make a levy.

Then they were imprisoned, it is true ; but they were let out in ten or twelve days.
This is what we com­ plain of ; it is what could not happen, u n ­ less in extremely rare instances, here ; and it altogether paralyses criminal ju s ­ tice in Ireland.

T hat is the short case.


All the learning, therefore, thrown away by my Noble Friend on the practice of the Exchequer respecting estreats, the various absurd stages which belonged to this process under the old rules, and the changes which have, in late years, been made to simplify that once complicated operation, learning thrown away on the present occasion.

My Noble Friend seemed to have some compassion for our ignorance of these Crown Office details.
The tru th is, they are familiarly known, here, to the pro­ fession ; but they are as useless in this debate, as they are familiar.

No man, now, calls for any change in the law ; no man impugns its sufficiency for its object.

B ut all complain that it is unexecuted, and its object not attained.
Then it is asked, and the question was cheered by a Noble Friend of mine (Lord H ol­ land), who is also a friend of liberty and of the constitution— except on a ques­ tion in which Canada or Jam aica liberty and constitution may chance to be con­ cerned, — it is asked, who is to attend to this ?

W hy, the answer is plain enough, — the very parties who let these persons out of gaol.

They it is, who are to execute, If the judges let and not break the lawr.
them out without the consent of the Crown,— the cognizee of the bond, and to whom the penalty is due, — then these their judges m ust henceforth change course — and nothing can be more whole­ some than such a hint as is conveyed to those learned persons in this first re­ solution ; but if the judges do not pro­ ceed th u s ,— and I have no reason to think the fault lies with th e m ,— then the officers of the Crown, who have been remiss, m ust be cautioned and stimulated, — and, surely, they will act properly in future, after your Lordships shall have ’ 26 I HOUSE OF LORDS.
[ T u e s d a y , reminded them of their duty.

Then^'my 1 Noble Friend (Lord Plunkett) says, that : I am unacquainted with the meaning of ; the prerogative of mercy, and that I en- tertain an unconstitutional or an ignorant the notion of this eminent office of j Crown, — a function which he extolled as [ beyond every other possessed by any ■ kind of functionary, elevated, peculiar, beyond being touched ; a function spoken of as above being controlled.
But I am not half so ignorant, permit me to say, as my Noble and Learned Friend, himself, Í who thinks that this is distinguished from ; every other prerogative of the Crown ; that it is to be exercised at the mere grace and pleasure of the Crown ; that it differs from every other prerogative, in- [ asmuch as the subject has no claim upon 1 the Crown for it, and no right whatever [ to ask it.
If this, indeed, were the only one of the prerogatives exercised at the pleasure of the Crown, how does the Crown create Peers ?

How does it grant ’ franchises ?

How does it confer pensions ?

No man, surely, has any right to a peer- .

age, or other honour, though wre every j day see many men obtain such.

No man has a right to a pension, or other Crown I grant of profit.

No body of men have a .

right to a charter, or other liberty.

In j this respect, these ordinary prerogatives .


of the Crown differ not at all from my j Noble and Learned Friend’s peculiar and special prerogative of mercy.

Why, really, instead of its being any distin­ guishing feature of the pardoning power, that it is exercised gratuitously, and that I no one can claim its benefit as of right, , this seems rather to be the most ordinary the prerogatives of the ( feature in all Crown, and to be an incident common to !

them all.
them all.

Out of its mere grace and ( favour, the Crown confers honours.

Yet, .

if we see the Crown playing with that un- | doubted prerogative, as a child does with a bauble,— or if we see it used for wicked • purposes, — wrho can doubt that the Mi- .

nister will be responsible?.— ay, and who I can doubt that Parliament, seeing honours j thus recklessly lavished, or unworthily .
bestowed, — distributed for a bad purpose, or for no rational purpose at all, — w'ould ^ interfere by a resolution, and control, or : at once stop, the abuse of the Crown’s right?

Mercy is a prerogative of the in the same Crown, L manner as all other prerogatives, — with , sound discretion, by responsible Mini- 1 sters, for the public good, not for the per­ sonal gratification of the Sovereign or his servants.
It is, like all other powers in the state, — whether held by the Prince, the Peers, or the Parliament, — a public to be exercised trust for the people’s benefit ; and the higher, the more important the subject matter of it, the more delicate is the trust,—and the more cautiously, the more tenderly, the more deliberately, must it be executed by the Crown.

My Noble and Learned Friend asks, who ever heard, and when did we ever know, of an interference with the prerogative of mercy ?
Why, over and over again, even within the last two centuries.

There wrere the cases of Strafford and Stafford, in the reigns of Charles I. and II., where the people interfered with the mercy of the Crown ; but these were bad precedents, and I will not refer to them ; but the Statute of Northampton was made with this express view.

To show my Noble Friend how little he knows of the subject he has been schooling us upon, I will only refer to twro or three lines of that statute.
I feel some satisfaction in proving to him that I am not so ignorant of the points of this law as he seems to think.

“ W hereas” (says the st. 2 Ed.

III.

), “ offenders have been greatly encouraged, because the grants of pardon have been so easily granted, in times past, of rob­ beries, felonies, and other trespasses.” Is not this precisely the argument in the present case ?

And upon this preamble the Legislature restricted the prerogative, wdthin limits which have subsequently been, no doubt, removed.
But I do not consider that the reason thus assigned, and the law made in that year (13*28), and confirmed ten years later, are a peculiarly ill authority for my own doctrine ; at any rate, I am sure it is an answer to the somewhat triumphal question of my Noble and Learned Friend — when did any man ever dream of restricting or of touching the pardoning power ?

My Noble Friend, on this subject, while declaiming against our ignorance, only dealt, be it observed, in vague generalities.
He laid down some positions; but he quoted not one single authority, save the ; very general and wrell-known panegyric of Blackstone, which applies to my doctrine just as well as to my Noble Friend’s.

Now, I, on the contrary, have quoted authorities ; I have referred to Bracton and Staunford, as well as the Statute Book ; and I have especially referred to Serjeant Hawkins, — as great an authority, surely, on this If question, as Mr. Justice Blackstone.
both Blackstone and Hawkins, on a point of criminal law, were quoted in any court of justice, I know; which wrould be con­ sidered the best authority ; but, in truth, Blackstone does not differ from Haw­ kins : he calls it, “ the high and amiable prerogative of the Crown ; ” but he does A u g u s t 6 . ]

ADMINISTRATION OF JUSTICE IN IRELAND.


2 7 I prefer, however, not state that it is’ to be exercised with­ out responsibility in the M inisters by wrhom the Crown is served ; far less does lie say that it may be exercised through mere caprice, either of the Sovereign or the his servants.

authority of Hawkins ; because, instead of keeping to generals, he specifies the very principle that ought to govern the pardoning process.
He lays it down, that mercy is not to be shown, but in cases wrhere, on due examination of all the facts, it shall clearly appear that, had the law been able to foresee the particular circumstances, it would have excepted the offender from the penalties which it has denounced.
It is not to be adopted, because there are fifty or sixty prisoners in the gaol, and the governor shall say, — “ I have a mind to let them out ; if we make some of them shake hands, lecture others on their future conduct, and they all go out, either in a mass, as at Sligo, or in platoons, day after day, as at Clon­ mel, the state of the country.” Much less is it said th at the gaols may be cleared in one place, and left filled "in another, according as the Viceroy shapes his course on a tour.
N either Mr. Justice Blackstone, nor Mr. Serjeant Hawkins, gives any coun­ tenance to so wild a plan of mercy as this.

N or does any one form er precedent of our Government, since the tim e of the Plan- tagenets and Tudors, and first of the Stuarts, when a coronation or an acces­ sion was the signal of gaol delivery in cases of a trifling sort.

the movement will improve B ut the state of the country has been referred to, by way of a set-off, I sup­ pose, against these strange acts of the executive power.
Certain facts have been proved ; they are not denied ; the in ­ ferences from them are hardly disputed now, how guilty soever these may be : but certain other facts have been stated also, of a wholly unconnected class, and the case runs parallel and not counter to that which it was intended to meet.

No cause has been stated for the G overn­ m ent being able to withdraw 2000 men which were required in other and more disturbed parts of the country ; it is all ascribed to the gaol delivery.
"Whatever charges are brought against the Irish G overnm ent,— how specific soever they may be, and how plain the evidence to support them , — though they show the adm inistration of justice to have been extremely defective, and the use of the pardoning power to have been most in ­ considerate, — though the direct tendency of these errors and abuses the encouragem ent, and not to the suppres­ to is sion, of crimes, — still, in answer, or rather in compensation for all this, they bid us look to the flourishing state of Í Ireland.
The peace is unbroken by re­ bellion; agriculture th riv es; the means of the people are improving ; there is no immorality to be complained of.

Nay, my Noble Friend near me (Lord Stuart de Decies) conceives that all jealousy has ceased out of the land ; and, consequently, I presume, all cause for it too ; — this is the fairy picture we are desired to look at.

T utus bos etenim rura perambulat.

Nullis polluitur casta domus stupris Mos et lex maculosum edomuit nefas.
I wish, indeed, I could add, as cor- 1 rectly, — Culpam poena prem it comes.

M y Lords, the two cases do not meet ; they are parallel, — and the defence is a set-off, not an answer, to the charge.

Then it is said, “ How soon you bring forward this motion !
we have not yet had an op­ portunity of reading the evidence — yet, that the Noble M arquess has evidently read every p art of the evidence bearing- on his own case, and necessary for the pre­ sent debate, is quite clear ; not a tittle of it, knowingly, has escaped him ,—although ; he has not, certainly, stated its purport in I debate as clearly as he seems to recollect it.
But, if we were to wTait until those to w'hom the subject is very disagreeable shall have read the evidence, I fear that we should never bring forward any mo­ tion, or come to any decision, upon the question at all.

I have more than once informed your Lordships how this motion I had supported the Noble originated.
E arl’s (Roden’s) demand of a committee, upon one only ground, — the charges made, and never denied, respecting the adm inistration of justice, and especially th at im portant branch of the judicial adm inistration — the exercise of the pre­ rogative the com­ mittee, I confined myself chiefly to that portion of the inquiry.
I appeal to all who served with me, whether I did not hold the balance, as far as it was in my hands, with strict equality and fairness between the two parties — whether I did not subject the witnesses against the Go - , vernm ent to full as strict an examination as those produced in its behalf, — whether I did not extend the same protection toj the one class as to the other.

B ut a mass of evidence wTas collected, of vast bulk, ( various aspect, and great importance.
; W e almost all deemed it necessary to give the H ouse some R eport upon its contents,, — not expressing any opinion, but stating in pardoning.

In HOUSE OF LORDS.

[ T u e s d a y , the substance of the proofs, and enabling your Lordships easily to understand the result of our inquiries.

We determined, .

therefore, to furnish an abstract, which i might embody the contents of the evi- [ dence, and serve as a key to unlock it.

Several of the members took, each, a de­ partment.


My Noble Friend opposite, our chairman (Lord Wharncliffe), under­ took the whole subject of the Ribband conspiracy ; my Noble Friend near him (Lord Ellenborough) took the state of crime, and the granting of pardons ; I [ undertook to form an abstract of the other * matters relating to the judicial admini­ stration, — naturally enough, — because that had formed the main object of my at­ tention in the course of the long inquiry we had conducted.
When we met to consider these several abstracts, objections were j raised, — and raised by the Noble Lords who had all along defended the Govern- ' ment, — of such a kind,—partly as to ex­ pressions, partly as to omissions, partly ' as to arrangement, — at almost every line, , — that, it was quite manifest, weeks and .

months would not suffice to agree upon jj any Report or Abstract, or even any Index, at all ; and I therefore at once said that .
I found I had been wrong in supposing ( anything ever could be agreed to, and I that those Noble Lords, who were taking the objections, had been right in stating , that there ought to be no Report, except merely laying the evidence upon the table ; of the House.
But I added, that I should j endeavour to supply the defect by a mo­ tion respecting the pardons of the Viceroy, ; which, in my estimation, was the most important subject of all, by far; and that, as I had been driven, by the supporters of the Irish Government, from what I ; deemed absolutely necessary to the dis­ charge of my duty, I should take the only course left for us, by moving your ; Lordships ; and I pledged myself to make you masters of, at least, one branch of ‘the evidence.
This pledge I have to-day redeemed.

!

That I took any party unprepared, I therefore utterly deny.

The Noble Mar­ quess had the evidence daily sent to him, and nobody can doubt that he read it.

A t any rate, he has read it fully before ^his night ; and I expressly said from the first, that I should confine myself to the thirty or forty pages of the evidence which bear upon the administration of justice.

jThese could be read easily in two hours .of time.


I put it to your Lordships, whether I have not performed my pro­ mise ?

— whether I have travelled one hair’s breadth beyond that portion of the I sase ?

But I must now go further.

ask your Lordships, whether I have not had my prediction fulfilled as to the course the debate would take ?

and whether all the opposite prophecies are not now falsi­ fied by the event ?
Then it is said that I have been unjust towards Sir M. O’Loghlen, and that I have violated my own doctrine,—namely, that the judges should be held up to public respect, and not to public cen­ sure.

But, then, my reference to Sir M. O’Loghlen was not in his judicial cha­ racter, but as Attorney General, in the advice he gave at the Castle, and the conduct he held when public prosecutor.

As to the case of Gahan, I will only say that it has been totally misrepresented ; but I will not go into it again.
Every one who reads the evidence must agree with me.

The nonsense that is told about Judge Moor having applied for Conner’s pardon, who was concerned in the same desperate fray, is really below contempt.

First, he never applied at all, but waited till the Government asked him, upon some Member of Parliament applying.

Next, he reported, not for a pardon, but for a year’s imprisonment.

Again : he had sentenced him, on the jury convict­ ing, to the greatest punishment the law allows.
Fourthly, he had reflected for months on that verdict and that sentence, and never gone beyond doubting on the case.

Fifthly, the ground, and the only ground of his doubt was removed by the second trial, when the sobriety of the policemen was directly put issue.

Lastly, the defence of Connors was totally different from that of G ahan,— being a question of identity; — so that nothing could be more easy than to believe the one guilty, although the other had been acquitted.
They who argue thus, really are in as perverse a state of mind, and as hopeless an ignorance of the case, as ever Sir M. O’Loghlen was in, either when he took upon him to sit in judgment, by way of appeal from Chief Justice Doherty, who had tried the cause, or when he came before the committee to defend his judg­ ment and explain its grounds.

Greater ignorance of a case it is unnecessary, and it would be impossible, to conceive.
With respect to that Right Honourable and Learned person, my Noble and Learned Friend (Lord Plunkett) needed not give himself the trouble of defending him at length, — not even of eulogising his general conduct, still less of praising his judicial merits.

I am no adversary of the Master of the Rolls, in his character at the bar ; and of his conduct on the bench I never said one word.

I join in the respect usually paid to him as his due in in A u g u s t 6 . ]
ADMINISTRATION OF JUSTICE IN IRELAND, 29 the I did not even say a this high capacity.

word of his demeanour as a witness.

But, surely, the most ludicrous of all absurdi­ ties is, to hold an Attorney General, — a public prosecutor, — a partisan at the bar or in the senate, or on the hustings,— exempt from all censure, — nay, from all comment, — the instant he is removed to the bench.

My whole rem arks ap­ plied to him while in his lowrer sphere, — in the mere human stage of his existence.
He is now removed to that exalted state, among the blessed spirits who adorn the bench ; he is above all censure of mine, as long as he falls not from those ethereal regions.
B ut I only referred to the acts of his form er state, — the things done in the body, — when he sojourned among us clothed with infirmities of our limited nature, and was amenable, like ourselves, to the bar of public opinion, and could be questioned and blamed w ith­ out detrim ent to the sacred purity of the erm ine that now clothes him and covers him from all attack.
to W ith respect the composition of juries, I quite agree that religious opinions ought not to be the ground of setting jurors aside ; but, certainly, persons who may, the day before a trial, exhibit at a tum ultuous public m eeting great political violence, and bear a forward part in ex­ citing the people to acts of lawless vio­ lence, ought 'not to be put upon the jury which is to try that very offence.
My Noble Friend (Lord H atherton), who fairly and candidly gave up the Noble M arquess’s case upon the im portant point of the gaol deliveries, and admitted that nothing could be said for this part of his proceedings, stickled, nevertheless, much for the A ttorney G eneral’s instructions re ­ specting juries.
lie could say nothing as to their uncertainty and their diversity, — nothing for the A ttorney G eneral’s (O ’Loghlen’s) failure in explaining them, — nothing for the construction attem pted to be put upon them ; — but he contended th at they had done no harm ; and that only one witness, whom he seemed to charge writh prejudice, had been found to disapprove them .
Really, this is one of the many statem ents of my Noble Friend, which are at considerable variance with the facts in the evidence, and for which I am somewhat at a loss to account.

Only one witness disapprove ?

Only one person say th at juries have been the worse for the instructions, or for the various meanings given to them ?
Really it is ju st the reverse ; — all but one have them ; all but one have condemned complained loudly of the juries being much worse constituted : and almost all these complaints come from men in the employment of the Government, and even employed in the Attorney General’s own peculiar department.

I will not fatigue the your Lordships with reading over evidence at this late hour ; but I must run over the heads of it, and refer to the substance and to the pages.

Mr. H atton (p. 242. to 245.)


swears that the juries are worse since the instructions of S ir M. O’Loghlen ; th at Protestants have no longer an)- confidence in them ; th at the inferior class of jurors, now serving* are liable to be influenced by threats when attending m arkets ;*that convictions are more difficult to be obtained.

Captain Despard (p. 276. to 278.)


says that, for­ merly, too many jurors were set aside; but, now, the error is too far the other way ; that connections of the prisoners*, and publicans, get on juries now ; that the latter class cannot afford to act ho­ nestly, though not intentionally dishonest ; and that, where a popular feeling exists, there is not any fair chance for a p ro ­ secution.

Mr. Rowan (p. 15G.

to 188.)


swears that the not setting aside has a very injurious effect; that a lower class; th a t of jurors serve than before ; and persons connected with the offence may now be on the ju ry , and prevent a convic­ tion.

Mr. May and Mr. Plunkett (p. 379. and 390.)

both swear that the Crown’s power, if discreetly used, has a useful operation.

Mr. Hamilton (p.

70G.)


swears that, in consequence of the instructions in party cases, there are, generally speak­ ing, no convictions at all, where there ought to be.

Mr.

Seed swears (p.

302.)

that though, in ordinary cases, there be no objection to the new system, yet that the old is preferable where party feeling or intim idation exists ; and he explains how perniciously the new operates against the due adm inistration of justice.

M r. F inn (p.

814.)


says he is sure the new plan has proved injurious to the admi­ nistration of justice.

Mr. Mackinnon, another Crown solicitor (p.

GGO.

), gives the same unfavourable account of the system’s operation.

And these nine w it­ nesses are the single person who m y Noble Friend has actually had the bold­ ness to assert was the only witness to disapprove of the A ttorney G eneral’s in ­ structions !
B ut nothing in this debate has aston­ ished me so much as my Noble Friend at the head of the Government (L ord M el­ bourne) complaining of the time at which this motion has been brought forward.

W hy, I gave above a fortnight’s notice ; and there were only forty pages of the evi­ I beg the House to ob- dence to read !

30 HOUSE OF LORDS.

[ T u e s d a y , | i i serve how closely I have kept to those forty pages,— referring to not one tittle I beg the of the evidence beyond them.
; House, also, to observe how completely all the predictions have been falsified by the event, of those who confidently fore­ told the impossibility of confining this debate to its proper object, — the admi­ nistration of justice.

I also must claim to be regarded and followed as a safe guide, i, when it is remarked how entirely my pro­ I was told phecy has now been fulfilled.

that the whole matter would be gone into, and that it was quite impossible to keep the debate within its proper bounds.
I said I was quite confident I should be able to do so ; and that no one topic would be touched on or alluded to, except theonesub- ject which I was to bring forward.

Well, the debate is now over ; and all the speeches have been heard, save the small residue of this my reply ; and I ask if any one allu­ sion has been made,—if anyone word has been uttered regarding any one tittle of the evidence,— except what related to the administration of justice ?
Why, then, were not two or three weeks amply sufficient to this discussion ?

prepare all men for What right can my Noble Friend (Lord Melbourne) have to complain of the ques­ tion being hurried on ?

What earthly ground can there be for his assertion that he could not read the evidence ?
Two, at most three, hours were all that he re­ quired to peruse it ; and he now comes down, after two or three weeks, to tell us that he has not read a word of it,— knows nothing about it,— and cannot tell whether I the Noble Marquess be guilty or not !

From I this, I naturally expected him to conclude his speech by asking for more time, or moving for an adjournment of the debate.

, No such thing.
, No such thing.

He moved the previous question, which is an admission — not that he is ignorant of its merits, but that he has considered it, and, in some way or ^ other, made up his mind upon it ; — that ] he feels he cannot resist the motion ; but that he also feels it an inconvenient one I for him, and therefore wishes the ques- , tion may not be put upon it.

To be sure, .
To be sure, .

if the argument of my Noble Friend were allowed to prevail, nothing could well be I imagined more comfortable for the Go- j vernment, —- and for any Government.

\ They have only to say, — “ We have not [ considered the case ; therefore, do you r. resolve not to pronounce a sentence upon c us.” I will answer for it, on these terms, \ no unpleasant case would ever be con- t sidered by the Government, and no in- [ convenient vote would ever be passed by : Parliament.
The ignorance would not be a pretence—*but it would be real; and the advantage resulting from it would be a reality too.

But my Noble Friend charges me with violence — with acrimony — with undue severity against the Noble Marquess.

No man is a judge of the exact force and weight of his own expressions.

I can only say that I had no intention to be violent or severe.
I know that I omitted some heads of attack altogether, — heads much dwelt upon by members of the committee I know, too, during our investigation.

that not one word escaped me which had not a close connection with the subject,— the administration of justice ; and this I well know,— that 1 abstained from num­ berless topics, numberless illustrations, which would have been used by me, had another person’s conduct been the subject of debate.
But, it seems, I have, else­ where, praised the Noble Marquess ; and therefore it is unfair in me, and un­ friendly, to blame him, here.

That the for­ mer praise may have been very friendly, I do not deny ; but that this circumstance renders the present blame less amicable in its aspect, I do not clearly understand.
My Noble and Learned Friend cites a note, published, as he says, under my sanction, and applied to a speech delivered in 1823, on the administration of justice in Ireland ; and he seems, by his refer­ ence, to insinuate that there is some in­ consistency in my now disapproving him, whose conduct I approved above a year ago.
There is not the shadow of incon­ sistency, or anything like it, in this pro­ ceeding, even the if you account the panegyric bestowed in the note — and very sincerely bestowed — on the private and literary character of the Noble Marquess, — a panegyric read by my Noble Friend with a mingled sneer at the author of the praise and its object.

My Noble Friend really could notj resist this, his besetting sin, of con­ stantly holding cheap all men and almost all things.

That is his way.
That is his way.

Also, it is his way to bring out roundly, and some­ times too, whatever passes through his mind.

This it is, among other and higher qualities, that makes him so agreeable a debater here, and so delight­ ful a companion elsewhere.

The humour is his own, and it is racy and pungent.

No respecter of subjects or of persons, out it all comes — no matter who is by, or whom it hurts.

He gives mirth, and he shares it too, largely enough.
It is gene­ rally one word for his audience, and two for himself; one laugh from them, and two from himself.

So on he rolls, with his lively and careless speech, or his yet livelier and more careless conversation.

roughly take into A u g u s t 6.]

ADMINISTRATION OF JUSTICE IN IRELAND.

31 Good sense and good humour are always at the bottom.

No gall— not a particle of self-conceit — is anywhere to be found.
I f other men are little respected, he is, himself, never set up in any invidious contrast, but seems to be as little thought of as any of those he handles.

Some startling paradox, to pass for profound and sagacious originality, — some sweep­ ing misanthropy, to show deep and pene­ trating knowledge of human nature, — nothing can be more agreeable — though, very often, nothing can be less correct.

And so it was to-night.


The praise of his Noble Friend, which he laughed so much at, was very sincerely given by me, and I still think very well deserved by him.

I have constantly repeated it behind his back,— and in quarters where the echo of any sound of it never could reach his I defy all the persons who have ever ear.
heard me speak of him, up to the hour in which I now address your Lordships, — and they are not a few, — I defy them all to say upon what occasion I have ever said a tw entieth part as much against him as I have felt compelled to do this day - — nay, I defy them to say what I have ever uttered, that was not kind and friendly ; and whether I have not u n i­ formly confined my charges against him to his conduct respecting justice and mercy, and, on that, limited my blame to an amiable and a venial indiscretion.
I suspect the loud bawlers in his praise could not safely make the same searching and broad appeal.

B ut what is the supposed inconsistency on which my Noble Friend rem arks ?

The subject of praise was Lord Wellesley and Lord Anglesey holding even the ba­ lance between the contending sects,— that is to say, giving the Catholics their share of promotion fairly with the Protestants.

The Noble Marquess is then commended for treading in th eir steps.
Have I said a word, to-day, that is at variance with that eulogy ?
Surely my Noble Friend cannot mean to rely on so very poor a quibble, as that the phrase “ holding even the balance ” implies the giving no p re­ ference to the Catholics, and th at yet, to-day, we accuse the Noble M arquess of trusting to Romish priests against P ro ­ testants ; — for the whole passage m ust be taken together, and then it is p er­ fectly manifest th at the whole subject of panegyric is, that the three successive Lords L ieutenants had all promoted Roman C a­ tholics more than their predecessors ever did.
B ut I will not stop to defend myself against this childish argum ent, which only shows the extrem ity of the case now on its defence.

Suppose I had changed my I opinion of the Noble Marquess’s admini- ' stration since June, 1838.

Has the evi- || dence of June, 1839, brought no new facts j] to light?

"Was Gahan’s case — was Slye’s | case — were the details of the gaol deli- | veries — wTas the treatm ent of the judges j| — was the appeal to the gaolers — known j| in 1838, when the note appeared ?
Surely | a more absurd — nay, a more desperate I — argum ent this never yet was l|| than brought to prop up a hopeless case.

to ventilate. }

I see around me, in all ?

But, from this topic, my Noble Friend, in a luckless hour, passed to a still worse | — and that really did astound me.
He | sneered at the course of my public con- || duct ; and indicated his disposition to \ withhold from it the praise of consistency, which I had openly claimed by a refer- \ ence to thirty years’ public life and up- ; wards.

Now, I repeat my challenge, to !


which I am compelled by the doubts which my Noble Friend, without any one attem pt at particularising, but wrapping i himself up in mere vague and general insinuations, has chosen I defy him, or any man, to show the single instance in which my conduct has varied upon any one of the great subjects which divide statesmen, and agitate the world at large.

directions, abundant instances of men who have changed their course upon many- subjects, and wTho have connected them-!
selves with many parties in succession.

I speak of them with all respect; their conduct and their changes have been,; doubtless, directed by pure public p rin ­ ciples, and never guided by personal mo- : tives.

Nor, while I acquit them, do Ij now, nor did I when I last addressed your ' Lordships, claim any m erit to myself for what I expressly called — and what I : really do think, in the various course of human affairs — a piece of good fortune, much rather than any desert.
B ut the fact is undeniable, that, upon all the great questions which divide m en’s opin­ ions, I have, ever since 1810, when I entered Parliam ent at an early age, been fortunate enough to hold precisely the same course throughout this long interval of time, without any exception or variation I have consistently supported whatever.
reform ,— the abolition of the slave trade and slavery, — the Catholic question, —4 the reduction of expenditure, — the re-j sistance of oppression, — the extirpation of abuses, — the reformation of the law, — the limitation of the executive power., Moreover, I have uniformly adhered to one political party ; and if, at the end ofj this long period, I have found myself under the painful necessity of separating from my form er political friends, it has HOUSE OP LORDS.

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been, not on personal but public grounds, — it has been, — it has notoriously been, — not because I changed, but because they have changed their course.

When out of the Government in 1835, I zea­ lously supported them; in 1836,1 abstained from attendance, that I might not.

em­ barrass them; in 1837, I supported them on all but one question, when their con­ duct was a violation of liberty.
But in 1838, when they abandoned their reform principles, and carried further than ever the unconstitutional government of the colonies, —and still more in 1839, when they have utterly forgotten the very name, as well as the nature, of Whigs, and con­ sented to stand upon a mere court intrigue — a mere bedchamber quarrel, — against Parliament and against the people, — then, of course, my opposition became habitual, and I heartily desired the end of their reign.
I will not deny that I desired their fall, wrhen I saw them — with asto­ nishment saw them — stand on the most Tory ground,— ground ever most bitterly assailed by them in their better days, — for the Tories always had the decency to cover over the nakedness of their courtly propensities with some rag of public prin­ ciple, and spoke of danger to the church andj the other institutions, when they really meant risk of the King being thwarted, and their own power subverted.
these Whig Ministers, under my But Noble Friend, stripping off all decent covering, without one rag of public prin­ ciple of any kind, stand before the country stark naked, as mere courtiers, — mere seekers of royal favour; and do not utter a single whisper to show that they have a single principle in their con­ templation, save the securing a continu­ ance of their places by making themselves subservient creatures of the palace.
To leave such guides, and such associates, may be very painful, from old habits and connections ; but, surely, it became abso­ lutely necessary to all who would not join them in leaving their former principles.

My Lords, I grieve to have so long de­ tained you at so unseasonable an hour ; and I only, now, recommend these reso­ lutions to your immediate adoption.

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3 4 é L o n d o n : P rin ted b y A .

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