The Sun.
London, England, 1839-08-07 00:00:00

where there has been default, no fine can ir sieviea, necause
the party is not in circumstances to pay anything, and then
instead of being put into prison, and punished in such a
manner as by example to deter others from pursuing
that course which must lead to the frustration of all criminal
proceeding, the man is let out in ten or fifteen days,
the punishment being as nominal as the estreat. And in
what country, and in what state of society, and in what
state of circumstances calculated on the one hand to deter
a man from volunteering his testimony, and to seduce hint
on the other from giving his evidence, is it that this bad prat •
tice bas grown up and universally prevails ? Not in a country
like England where every man knows if the recognizance
is forfeited the levying of the fine is certain to ensue,
but in a country where there is every circumstance to
deter witnesses from coming forward, and every induce-
ment which is calculated to prevail upon them not to appear.
They are either the friends of parties accused or accom-
plices, or affected in troublous times; these, especially in.
the sister kingdom, have given rise to a vast proportion of
the offences they have committed ; they are in circum-
stances so likely to operate by giving a fellow-feeling to
the witnesses with the criminal, and the offence itself with
which he stands charged, that they want but very little
additional motives to induce them not to come forward.
This, my Lords, is human nature, and such are the cir-
cumstances which induce parties not to come forward.
But if the terror was less, and the risk less, and the
temptation or alliance sufficient to deter them, it is right
enough to say that the office of prosecutor is none of the most
agreeable for any man to perform, and consequently, the
law, feeling for human weakness, it would not trust to
volunteers ; it knows it cannot reckon upon willing testi-
mony, consequently it compels them to come forward
it binds them over to prosecute. But in Ireland,
where the motive of fear or favour, is more powerful,
the compulsion which is real in England is there formal
and unavailing. But I need not go through the evidence
upon that. It is sufficient for me to state the fact as it is
a sufficient ground for my first proposition, which is this
to make that real and substantial which is not so now, by
declaring that the due administration of criminal justice
demands that a witness who is bound over to give
evidence, shall be imprisoned if he makes default.
I now my, Lords, approach the second branch of the sub-
ject. I will not say that it is more important, for more
important it cannot be than that which I have now handled,
but I wish to make this distinction between the present
and former Governments of Ireland. I make no charge
against either of them, for it appears to me that this
system has grown up in bad times. A practice has
prevailed in Ireland owing to the state of society
there, much more general, and consequently "b"
served in England, that wherever the law is the same,
wherever the practice from time to time is identical
I say, because I speak in the teeth of the most unhesitat-
ing but astonishing statement of a high Irish law authoritY,
who to my utter astonishment has put upon record in
ca
written paper, that that is a right never claimed or enjoYel
in England ; every criminal Judge knows that it is
claimed, that it does exist in England—there is tot
one criminal law for Ireland and another for England'
though there is one practice I am sorry to say, in mere
instances than one. I refer of course, to the practice of the
Crown in cases of felony, to set aside without peremptory
challege, so as to leave twelve. But there, is besides'
this challenge, and independently a most essential privi-
lege enjoyed by the Crown as prosecutor, which is t. 7
direct the Jurors from time to time to stand aside until
it is found that a sufficient number, namely, twelve,
to try the case do not remain, and that bas
hitherto been done, for various reasons, such as having
been engaged in the same practices, or particular cases
of having participated in the same seditious feelings
a
having attended meetings which excited to tumult, and
various other matters of the same sort, as,
a ground for desiring Jurors to stand aside till the legal
number of twelve did not remain, and then there was the
peremptory challenge. Such was the case in Ireland till
very lately; but now a different course prevails, in cense-
quence of the instructions given by the Attorney-General,
( Sir Michael O'Loghlin) in 1835 or 1536, of which
a copy has been given to the Committee, and these
instructions have bean the subject of much discussion
and deserve the best attention of your LordshiPs•
I am bound, in fairness to the subject and myself, to state
that I should not be prepared to go the length of this el,"
elusion of all setting aside, grounded upon a strongly
expressed religious or political opinion, for I can imagine
a political trial, where everything depends—however clear
the evidence may be—however clear the guilt may be---
where, if there be upon the Jury one or more persons Aber
have partaken of all the proceedings in which that offence
was committed, and out of which it arose—l can well On'
ceive that no one possible issue of that trial could be ex-
pected but an acquittal ; and having conversed with Judgesc
in this country on that subject repeatedly, I have found
them entertain no doubt whatever that the rule is laid
down a vast deal too strongly. But I pass that over,
for my object to-night is to come upon nothing whieh,ea
be controversial or cause doubt as to matter of opinon*
One, and only one, ground of setting aside is here spe-
cified—you have seen the feeble and vacillating affirms'
tive. It can be set aside on communication with the Pr'„,
in Court. Now, as to his own interpretation of these,
instructions he was clearly of opinion that the strongest
expressions of political opinion even where political
feelings are most strongly excited, ought not to be all
ground whatever for directing a juror to stand aside.
Now I pass that over—it may, or may not be right. Ilde
says the evil of abusing that privilege would be worse, an
on the whole, the balance is in favour of making the rule
peremptory, and never setting it aside. But then he give;
a construction to his own order, which to me is most mar-
vellous, which I endeavoured to rectify by examining
very fully, and which, I believe, all the Committee agreed
with me in thinking, fell short of a very satisfactory or even
intelligible interpretation, or of anything like a defence of
his own construction ; but he said he did not conceive that
a person who happened to be no relation of the parties to
the cause should be set aside for other reasons. Now
I gave him a reason ; a person grossly ignorant, totally
incapable of attending to the cause—no relation, but yet
connected by similarity of conduct, and having been guilty
of all those things that led to the commission of the
same offence. Well, another case was put ; man of
notoriously bad life and conversation, not to be trusted m
point of honesty ; and various other cases were put, on
every one of which I never meant they should not stand
aside. No less a practical person—no less connected with
the Irish administration of justice than the Crown Solit
tor, Mr. Kemmis, not a novice, but who for thirty-01,e' i
years has presided over the important department Of 0- 1
minal trials, he said when examined, he would not be
justified in setting aside any man fer
any one of those
reasons I have just stated. Here is a very extraordiaari
dilemma in which we are placed. The Attorney-Genera
gives his instructions to Counsel, those instructions are t°
guide him. The Crown Solicitor puts one construction
_
on those directions, the Attorney- General puts another
construction. The construction of the author of the diref;
tions is directly opposed to the instructions of him
receives the directions—he is to act according to his interpretation;"
the clearness
of and n dt h giveneheinhsatrsunctoiongsutidheon sel
themselves,
hs
commentary furnished by the Attorney-General.
f
my Lords, the consequences of all this are bad; anub",
you will turn to the evidence, not of persons hostile to t
Government, but connected with it, you will find that
there is an almost uniform concurrence of testimony of t d
opinions of all those officers, so that it has injured atab
lowered the character and the composition of 13.
,imoreitilanhit
jurors. Now they give an instance—publicans. Pe",-, •
cans are necessarily under the influence of tradestne".
All that class of offenders connected with ribbon associa-
tions. particularly are persons who have a control over 0,
publicans, and I appeal to your Lordships whether itdrt
possible to expect that a publican being on a jury—an.
only can be prevented by exercising the right of seal
him aside—whether the jury will convict the offenclera?Thne
observation made by one of the witnesses, on ~tr,
subject was, " I conceive it is not that the pu'l
cans are not honest, or that they would not be honest 110
jurors, if. in their circumstances they dare do their duty.
The general effect of the evidence is,that the administration
of justice has in this way practically suffered. There is bt.
one exception—that of a person who, in 1836, was °P.
pointed Crown-Solicitor, Mr. Cahill. Now, he may b°
a very respectable man, and an able solicitor, but I have
much less respect for him in his character as witness,
than in any other capacity—( A laugh)—and this de'
claration is founded upon what I am now about to
read to your Lordships. I doubt not that the Noble
Lords, who heard his evidence will not soon forget the
way in which he gave it.—( Hear, hear.) He seemed to
take an impression from the beginning that it was a had
circumstance for him that he had been appointed at a
time when he was a member of the General Association;
that Association being of an extremely factious character,
tending towards the repeal of the Union—at all events t°
the abolition of the Established Church, and the cessation
of the payment of tithes. He seemed to have heard before,
that the objection was against his appointment, on that
thatgr
‘u
recollection.nv
Was
asa nydoue v
ae r
membery pHa retre o
arefo of the
histsho emee
General
examplesideennerc
a e
A was tinged with
i n the Corn Exchange ?
I think I was. .sCciation held I

" Were you a member when appointed Crown 5o1)
citor ?

- - -
1 .
“ lam not clear that I was. I cannot state t n."', I
was not.

Did you attend any of the meetings ?
" I have been present, looking on ; but never tool‘
any part.