The Express.
London, England, 1849-06-19 00:00:00

Mr. ANSTEY said the fact stated by his hon. and learned
friend, namely, that there was no precedent, was the very
reason why he hoped the hon. and learaed gentleman (Mr.
Napier) would peraevere, for if there was to precedent of
the petition of any person, however humble or defenceless
being rejected, that was not the time of day when they
should make one. (Rear.)
Sir R. PEEL said that it appeared to him that the speci-
alty of this case would warrant the house in receiving the
petition—(cheers)—even if doubts existed as to the pro
priety under ordinary circumatanccs of admitting it, be-
cause they were about being parties to legislative
proceedings. (Hear, hear,) The preamble of the bill
recited that doubts existed as to the power of the crown to
commute a seatenoe of high treason in Ireland, and the inter-
vention of parliament was necessary to remove those doubts
Under these circumstances, be thought it would be hard,
whether the party was convicted or not, to say that he was
disentitled from approaching that house, and praying that
the bill might not he passed into a law. (Hear, hear.) The
circumstances of the case were peculiar, and he would deal
with it as such. (Hear.)
Mr. J. STUART thought it impossible to consider the
right of the petitioners to petition, without considering the
nature of the act which was to substitute another punish-
ment fur the punishment of death. The petition was, that
the law might not be altered, and that they, the petitioners,
might auger the penalty of death. (A laugh.) This was
placing the house in an extraordinary position. He thought
they should be allowed time to consider the subject.
Mr. BRIGHT presumed that in all past times and now
men in the unfortunate position of these individuate would
have the liberty of approaching the crows for the purpose of
asking for a mitigation or remission of sentence. (Hear,
hear.) That house wee not in the position of the crown,
but, inasmuch as there was a bill before the house, and as
there was no precedent, they could not be doing wrong, in
a case of this kiud, where they were not pursuing an unmer-
ciful aid a harsh course, in receiving this rethou. (Hear,
The proper course was to throw open the right to petiti .n as
widely as possible, for no danger could arise from it. (H-ar,
hear.) He hoped the advice of the rieht hon. gentleman
opposite would be taken. (Hear, hear.)
Mr. ROCIIE hoped the hon. and learned gentleman (Mr.
Napier) would not withdraw the petition. As regard. d the
right hon. gentleman the Secretary of State fur the Home
Department, at all events, there'wes a precedent, for he had
received notice that a petition from the sane individuals
was about to be presented, and he made no objection.
(Hear, hear.)
Mr. GRATTAN expected that after the debate of Friday
night, as much lenity would be shown to Irishmen as to in-
dividuals on the other side of the Atlantic.
Mr. HERMES said that there must be great difficulty in
receiving in that house any petition from a person who was
civilly dead. If they 'received this petition on this subject,
he did not see why the same person might not present a pe-
tition on any other subject. He therefore wished for time to
consider the question.
Mr. COCKBURN quite agreed in the proposition that
persons unstinted of high treason were civilly dead, but as
they chose to legislate by passing an ex post facto law for
the purpose of affecting the position of these petitioners,
it was quite preposterous that they should not be heard.
(Hear, hear.)
Lord J. RUSSELL said that as he undnstnod the length
of the argument in the present instance extended only to
this that as this was a case in which they proposed to legislate,
and that there ought to be an exception made with regard to it,
he would waive his objection againstthe reception of the p,ti-
Um,. (Hear, hear.)
The petition of W. S. O'Brien, F. T. Meagher, B
lil9ilanus, and J. O'Donoghue, was then read by the clerk
at the table. After stating the several circumstances con-
nected with their conviction, and the fact that it was pro-
posed to commute the sentence, of death into transportation,
which they had been advised it sou not competent for the
crown to do against their own consent—the peti tonere
prayed the house not to sanction the bill which woe brought
in for that purpose, and that they might be heard by coun,el
at the bar of the house against it. The petition was then
ordered to ti • on the table.
Mr. ANSTEY wished to know from the right hon. gen-
tleman (Sir G. Grey) whether the commutation of the sen-
tence of Mr. O'Brien had passed the great seal, or whether
it had been authorised under the royal sign manual ?
Sir G. GREY said tut no warrant or instrument com-
muting the sentence had actually passed the great seal.
(Hear, hear.) The prisoners were, therefore, in the same
position is which they stood after the writ of error hail been
decid dby the House of Lords, and were liable to have the
criginal sentence of the court carried into execution against
them. (Hear, hear.)
TRANSPORTATION FOIL TREASON (IRELAND'
B

Sir G. GREY, in rising to wee the second reading
of this bill, said its object as to remove ell pos-
sible doubts that might be entertained as to the right
of the crown, or the right of tho Lord Lieu.
tenant of behind, as the representative of the crown, to
commute a capitel sentence, and to carry that commuted
sentence into execution in the case of persons convicted of
high treason in Ireland, who, in consequence of thet
sentence, were liable to suffer death, but to wh pm the crown
reiiht be advised to extend its mercy on the usual condition
of temp petition. It was reediest to remind the house that a
commutation of a capital sentence into transportation was one
of frequent occurrence. What was unprecedented was, that
persons legally tried and legally convicted of high treason
should re fuse the merey of the crown. (Hear, hear.) An
instance of that kind had occurred only in the case of the
four prisoners whose petition had just been read. (Hear,
hear.) When these persons had been convicted it
became the duty of the government to cunsidi r how the
sentence should be carried out. The bill was not founded
—and he begged that that might be understood—on ail ad
mission of the legality of th doubt; the object was simply
to remove from the minds of the people the idea that the
law hat not been as strictly adhered to in this stage of the
proceedings with regard to these unhappy and misguided
men as in all the previous stages. (Hear, hear.) The hon.
and learned member for Southampton had put the hypothe-
tical case of the bill bring teken a:vantage of to increase the
severity of justice. This bill was designed to enable the
Grown to temper justice with mercy, and, in the words of
the lord-lieutenant himself, to provide that justice might be
administered without any s verity beyond that which the
lancets of society demanded. (Hear, hear.) He did not
wish to say one word with regard to the previous conduct
of the prisoners. He would only, in conclusion, express a
hope that the bill having received the highest judicial sanc-
tion in another assembly, would meet with general concur-
rence in that house.
Mr. NAPIER said the bill bad come upon him so much
as a sue prise that he had scarcely had an opportunity of exa-
mining the question. It was evidently considered of some ien-
pounce, proposed, as it had been, for the purpose of alter-
ing the position in which the prisoners were placed.
A bill was passed last year for the express pur-
pose of reducing into felonies offences which had previ-
ously been held to be treason. The act distinguished
throughout between treason and felony; and if these parties
had been, as they might have been, prosecuted under it,
and had been convicted of felony, they would have been
liable to transportation for life, or for a term of yr an. The
design was now to treat them es though they had been con
victed under the act of last session. The whole ally- I
meat of the right hon. gentleman (Sir G. Grey) proceeded
on the assumption that there was no legal doubt at all. If
so, why not act upon the law ? (Hear, hear.) If the ob-
jections all had their origin in an excess of philo legality,
why did net the government carry out the clear letter of the
law ? (Hear, hear.) The hon. and learned gentleman con-
cluded by moving as en amendment that the petitioners
should be heard by counsel at the bat of the house.
Mr. J. O'CONNELL seconded the amendment. He said,
that when he and others had been convicted, and were suf-
fering imprisonment in 1814, it was at once admitted that
they were suffering an
i injustice and a bill was brought in
for their relief. The prisonersn that case, however, were
not allowed to have ex post facto legislation for their
benefit. How, then, could ex post facto legislation bejusrly
resorted to now as a punishment ? The effect of pestling this
bill would he to deprive the children of Mr. Smith O'Brien
of the benefit of large assurances upon his life.
Tne ATTORNEY-GENERAL, in resisting the amend-
ment, esplsina 1 the prime of doubt. It had been contended
in Ireland that the statute 12 George 1., c. 8, under whith it
wee proposed to commute the sentence, referred to persons
under sentence of death for felony, and therefore it was not
upplicable to cases of Melon. He thought that treason was
included is the term " (deny," and that the reasonable con-
structi Pn of the statute, in fororem vita, was that it gave
the crown power to commute in ease of treason. He showed
from authoriti a, and even from the statute 21 Edward 111.,
that all treasons were felonies, though all felonies were not
tressees. In this cues there had been no pardon ; but if
there had been, the pardon would be conditional, and if the
eendiden wee refused the pardon became void. If a writ of
habeas corpus had been obtained in this case, it would be a
sufficient answer that the party was a convicted traitor, and
he cited the case of one of the Canadian prisoners exactly in
point. The argument that this was an ex post facts law was
fallacious. Had the parties been pardoned and their position
alter d, the law reitht be so characterised ; but they were
really in the same *illation as when judgment was given on
the emit of error in the Roue of Lords.
Mr. C. ANSTEY supported the amendment, and inti-
mated his intention, should that amendment be rejected, to
move that the bill be lead a second time that day six
months. He claimed for Mr. Smith O'Brien that he
should die like a man of honour on the scaffold, rather
than be sent to such a den of infamy as a convict set-
tlement. He contended that on the authority of many old
eases, some dating so far beck as Edw. IV., the Queen's
pardon of Mr. Smith O'Brien, being a legal act, was valid
and remelted good, while the condition of transportation,
being illegal, was invalid and of no effect.
Mr. P. WOOD said he would not allow himself to be led
astray from the real question before the house by the hon.
member for Youghel. The question was whether a :doubt
existed as to the royal prerogative; and, admitting that such
did exist, he could only say that as to the demand of Mr. S.
O'Brien to be heard at the bar—the necessity for the bill
owing to the doubt as to prerogative being admitted—there
could be no necessity for bearing any arguments at
the bar. The only ground for hearing such would be
some illegality in the proceedings—such, for instance,
as to whether after a pardon had been granted, an
ex post facto law was about to interim with the effects
of that pardon.
Mr. KEOGH begged leave to stets his reining for enp
porting the amendment. The bill was an extraordinary one,
and brought forward under suspicious circumstances, of
which the suspension of the standing
.orderswa• not the
least indication. The state of Ireland did not justify such a
proceeding what then were the legal grounds for it? It
had been declared, both in that house and another place,that
no dGubt existed as to the power of the crown to transport
)h. 5, O'Brien, and yet the first paragraph of the bill

demiamul that such a doubt did fist, which wits right. The
feet was, that th bill was intendtd to impose a heavier
punishment than the law allowed of. The it gal mode of
dealing with the cue mu, by respiting the sentence during
pleasure, as h been done in a former ease, when Bnnd and
others were so treated, and otter being sent to Fort St
George, in Scotland, were permitted to expatriate them
selves v.lunteri'y.

The ATTORNEY-GENERAL.—That was dons under
fpecial act of parliament.
Mr. KEOGH.—So it might be done in the ;resent eue
without danutr ore ifficulty. The panne yore mAerned by
na sordid mot,vre, nor did they seek to serer Ireland from
the crown of England._
_ . .

Mr
ilf,ardeffina:jawateearl,
.liferjesint ALFOURD
many
they
eyi said,
a, that
na
dnuirhTip
oriwi
ceti,ttouhh bill
oc:lotaalteration
t tecorwjan sneuirned en. x
soddnotiQi
traordinary, it was called fur by extraordinary ciream. tannin
e
He apprehended, when his hon. vied learned friend said that
it would be possible to argue the question of the le galley of
such proceeding.: in the Court of Queen's Bench in
that be assumed that which was not the Ca.V., whatever
special return might be made to the writ of Iteheas Cor-
pus. The hon. and learned gentleman, the me ether for th
Univeni•.y of Dublin, said it must be taken as conceded that
the case of these prisoners was one in which the extreme
penalty of the law could not be carried into ct. He
heggel to differ fr en that view of twhheornMehe,
nt
ee
ry caoonfnyeehi de
ise r e dni
thinking
alsoe p
.m..t s
had to the atrocity of the offence singly considered, Bet it
they took into couideration the peculiar character and con-
duct,andh isnogrdeoauthetoninnecxluiodnin,_g
imr
the principal traitor, when they considered his high descent,
toan the
d w people
h o m
h ewhhaodm betrayed—whenh ebeddeluded,
portionu
bmtstrongtah,hl:eids:tys ,
to.pc
asuoinhrntparticular repugnance
psduct:eiraspunishment
2;a:see:sta. clemencysi; et
of a
deathgr et
re juice that the pueialiamlaceeLinetdralooeforhkeradeeyeosdafwthot had been everted is
a response in the heart of cv. ry Irishman—a clemency which
he trusted that house would not impisr by refesieg to sans.
tion the present bill, or delay by the wholly unueeessiu7
course of hearing counsel at the bar. (Hear, heir.)
Mr. E. B. ROCHE reminded the government that they
had come down the o' ik r night to support a bill for the in-
demnifigatian of loses sueeaucd from the Cuadi in rebel-
lime, and he peeked the Louses to compare that ease with the
present, in which no property had been destroyed, ao life
-acrificed. However the law might stand fit, c was no
doubt but punishment of death was out of the qucetien, and
that being S 2 they proposed to pa a a law, In order to idler •
a mar, were senteace than by the present law they were
enabled to do. k
Mr. LAWLESS said this would have been a glitioat op-
portuaity for her Majesty to It eve ex i&s• d her preemptors
to the fullest extent. There had been 50.000 signature' to a
petition upon the he half of these men, and by :uch an exer-
cise of the prerogative her Majesty would Wove s cured the
faithful attachment of those men, and have p,.t an reties
guisher upon any future insurrection. Ile ettoull °ppm
this measure in every stage, and would ratio r divide the
house a hundred time* than permit it to become law.
Mr. FAGAN denied the proposition which had been put
before the house by the bor. and learned member for Read-
ing (dr. Serjeant Tall curd), that this was an act of mercy.
He believed, even it the present government wished for the
infliction of capital punishment, that the Lord Lieuteaut
would not sanction such a measure. It was utterly impassi-
ble that that sentence could bo carried out; and it was
futile, therefore, to pretend that tramper involved any
exerciee of mercy. lie trusted the government would see
that this was a case in which a pardon should be conceded.
Mr. GODSON said that the ccmmen law punishment
which could have been substituted for that of the would
have been imprisonment or fine—that he took to be good law
upon the authority of the hon. and learned the Attorney.
General. This bill, therefore, become unnecessary, and if
.he crown bad subs i•u•ed imprisonment for de eta be los
lieved that they never would have had this ley. *duties.
[ Mr. MONSELL said that his feelings did not &Inv him
to be altogether s lent on this sultject. He wined the
house to consider what would bo the practical effect of the
passing of this bill. T acre could be no doubt that the oven-
ment teed the power of imprisonment for life; the effect of
this bill was to allow them to change that punishment for
transportation. Therefore the real practical effect of this bill
was to enable gm mm' rat to inflict a heavier punchy then
they could have iielicted if the bill did not pass. This cams
thou under the head of ex post filch) legislation. Ile asked
the government to consider whether the memorials and pe-
ti ions which had been pre.ented for pardon for those unto,.
tunate and misguided men, and for a further mi igation of
their sentence, ought not to have some eff ? The per.
poses of justice, and the incenses of the country, would be
fully consulted by such an impri• mount as the c regrnstamee
of ilia case required.
Mr. REYNOLDS argued that, this qu s 100 involviae
legal points, which the petiti-mers could not base dehatedia
a court of law, they ought to be hoard by counsel; that,
with reference to the bill, as it was idle to suppose the lives
of the prisoners were in danger, the substitut,on of trans
oirm•ion for imprisonment, which miant he iieficted as a
secondary punishment under the common law wi• bout this
hill, seas, in fact, en aggravation of the penalty ; • nd that,
under the circumstances of the case, leniency th:uld be
exercised.
Sir J. GRAHAM could not reconcile it to his sense of
duty to Ore a silent vote on this occesi on; although, if he
consulted only his own feelings, he should slimes from
saying anything respecting these men, for during the mealy
years that he had gm in the house he had been on terms of •
Intimate communication with one of them. Under say cis
cums'ances, considering Mr. O'Brien's present condition,
he should think it inexcusable on his part to say any thing
which could tend to the aggravation of his puninament; but,
aft .r the speech which he had just heard, he was sorry to
say he meld not venture to say any thing in estcnustion of
his erime. As to his wife and childr nhe must say that be
thought it would have been well if Mr. O'Brien had remem-
bered that wife and those children before be engaged in his
hapless enterprise. I Hear, hear.) Something had been
said as to the eyes of Ireland being fixed on the home la
reference to their decision this eight. He fah
that the eyes of Ireland were died upon theta, and es it
was the peinful ditty of the ministers of the crown to
advise condign punishment in respect to persons is a bumble
station of life, he tnought they would be inexcusable if they
tailed in the administration of justice in roped to a person
occupying the station of life which Mr. O'Brien occupied.
lie thought that the points introduced with reference to the
crime committed be Mr. S. O'Brien were extraneous; he
was sorry they Ind been introduced. The queetioo which
they were now called upon to discuss was one =holy, as it
appeared to him, of law. He had had the homier for many
yeard of being more particularly the adviser of her ?dainty
in respect to the exercise of this prerogative, the noblest,
the brightest, the most precious that adorned the crows
of England, vie , the prerogative of mercy. These was this
remarkable quality in it, as he had always thoupt, like the
quality of mercy itself, it was a prerogative which could not
be strained; for other prerogatives might be used advefsely
to the subject. He gave his support decidedly to the bill.
He was mast decidedly of opinion that the sentence should
be commuted with a secondary punishment.
Mr. ROEBUCK understood the proposition of the hon.
and learned gentleman opposite to be of this description,
that certain counsel should be heard at the bar of the house
in opposition to this bill. He arreed with this bill, he should
vote for the second reading of this bill ; he was quite pre.
pared to hear anything that might be said to the
passing of this bill by the counsel of the unhappy
persons before the house; but he should not like to give a
vote respecting the bill itself, and at the emotion) decide the
question of the honourable gentle meta opposite. ifs
heard the bon. member for Meath this night, and
he should not forget what he said. (" Hear, bear," from
I Mr. Grattan.) And when he said "not forget," let not the
hon. member suppose that it was from the wiedom of what
he said. (A laugh.) Ile heard him say that this was a rich
culous attempt at insurrection, that if they had not made
this false move they would have found that the:c were some
persons who would have made a real move, and the hon.
member would have b, en amongst those persons who would
have made a real move.
Mr. GRATTAN denied that he had said any such thing.
Mr. ROEBUCK did not consider it at all unlikely
that what the hon. member said should have
passed from his memory very soon a'eer. Trowe was
nothing which the hon. gentlemen could say which would
be likely to rest on any one's mind ; there was something
so extraordinary and ridiculous in the statement he made,
that by accident it had lodged in his (Mr. Roebuck's)
memory. He did say so, he it, and if Icy accident
it bad remained in the 'memory of anybody on ibis
bench, he asked them whether he did not sly it?
propositions, and should endeavour to do so, it per'
tHioenscloikuleisollmae
hspoenaokurianbilremriemebi3OnSS, Obr
but
tn comhue.rte nptroaszerabi
milted. What he had said was, that the hon. member for
Meath had called the rebilion a ridiculous rebellion, aldiax
that if it had been a rational serious rebellion he himself
would have joined it. (Mr. Grafton, "No, no.") He begged
the hon. member's pardon, lie (Mr. Roebuck) had fixed the
words distinctly on his memory.
Mr. GRATTAN—Sir, I must rise and put a stop to this.
I ask you, sir, whether you will allow an honour:Odd member
of this house, when speaking of attainted traitors, to chugs
another hon. member with having said that in certain eir-
cumetances he would have followed in their footsteps.
Lot
the hon. and learned member explain himself.
The SPEAKER,—If the hon. and learned member for
Sheffield has misstated anything that may have toilet frog
the hon. membei for Meath, the latter hon. mi mher is at
perfect liberty to state what he actually did say. (Hear )
Mr. GRATTAN.—What I said wu that re
fM. o•Brim
had so vulgarised sedition that no one would ollow his
example, not even the Chartists.
Mr. ROEBUCK said that that short explanation peeled!,
Meath could not fellow him. (Laughter.) But let bita rte
aeviVenear
vert to what was really before the house. (Hear, hest)
They were considering a bill which gave to the QOM!
atinssawsoereldohgissnpsuerdp ostsed.:silotss now appeared
a power which was disputed in certain quarters—le
powd
mercifully to commute a sentence of death. fie did nottfuse!
the bill requisite; but even supposing it requisite, who
the objection to it? It was objected that it was a
theed that
hon nusl re.mObTerifes:
active bill affecting one who was now a prisoner, but abs
would be free if it were not passed into a law. For his'
if if the bill were resisted, and if he were minister of the.
m 7.
and even although, on principle, opposedta the puntshis
of death, he would not allow the prisoners to escape from
the
severest punishment. He was not to be turned
bro sit
purpose by a general proposition that the punis mart: et
death was inexpedient. lie maintained that if the
e sr;
Mr. O'Brien were not those of an insane person, th
to We poor deluded followers. lie deemed t
e
•
pre-eminently mischievous, bringing misery and duestsrestecLialt