§ Mr. Brownlow
rose, to bring forward his motion respecting certain law proceedings, if indeed they deserved that name, which had lately been instituted in Ireland, against certain individuals, for transactions which had taken place in the theatre of Dublin on the 14th of last December, and in which the prudence, temper, and discretion of his 965 majesty's attorney-general for Ireland appeared to him to be seriously involved. Whatever difference of opinion might exist as to the propriety of the motion, with which he intended to conclude, sure he was, that all would agree, that the motion itself was worthy of the most serious consideration; for it was one which did not concern the inhabitants of Ireland alone, but which came home to the business and bosom of every man who lived under the protection of British law. It was one which did not relate to any trifling or paltry grievance, but which alleged, that there had been an unwise departure from the ordinary course of law, and an indiscreet exercise of the royal prerogative. Honourable gentlemen might, perhaps, think that an individual like himself, who was unacquainted with the antient laws and statutes of the land, was presumptuous in originating a measure of this important nature. He trusted, however, that to his statements, feeble and unsatisfactory as they might appear—not from the weakness of the cause, for that was invincible, but from the inability of the advocate—many hon. members would come forward to add that information of which he was so deficient; and that, along with their knowledge of the constitution, they would be anxious to show the love of freedom and the detestation of tyranny, which that knowledge could not fail to generate in every manly heart. But, though the question was undoubtedly one of law, it was also one of great constitutional interest. As his motion alleged, that a violent act of arbitrary power had been committed by a great legal functionary, he felt that he owed no apology to the House for bringing it forward. He trusted, that the course he had taken was consistent, not only with parliamentary usage, but also with parliamentary duty; for he called upon the House to look with a scrutinizing eye upon the administration of justice in the superior courts of law; not in a case where the suit was between one private individual and another, but in a case where the king, armed with all his powers of reward and punishment, was on the one side, and humble and imprisoned subjects were on the other. There were some members, however, who, instead of thinking him too hold in bringing forward this motion, were of opinion, that, attaching the importance that he did to it, he had allowed it to 966 slumber much too long. To those gentlemen he would offer every apology in his power. For he was well aware, that if such proceedings as those of which he complained had taken place in England, where men knew their rights, and knowing, dared maintain them, not one day—nay, perhaps not one hour—would have been allowed to elapse after the meeting of parliament, without their having been submitted to discussion; and the address which was voted with such unanimity to the Crown, might have been amended with some expressions of regret, that the ordinary course of justice had been departed from; that the opinions of grand juries had been set at nought; that they had been first taken, then rejected, and afterwards vilified; and that, by such means, the subjects of the realm had been perplexed and harassed with vexatious prosecutions. Such would have been the case, in all probability, had similar proceedings taken place in England; but in Ireland it was far different. The task of calling public attention to them had devolved from one member to another, until, at last, it had lapsed to him; and the reason why he had not brought his motion forward at an earlier period was this—that when it first lapsed to him, the Irish members were leaving this country to attend their duties at the assizes in Ireland, and that the present day appeared to be the earliest, on which the subject could undergo a full and fair discussion. He understood it had been said, that he had fixed the 15th of April for his motion, because the discussion of it on that day was likely to embarrass the attorney-general for Ireland, who had fixed the 17th of April for the discussion of the Catholic claims. He could assure the House, that he had had no such intentions; nor could he see how it could cause the slightest embarrassment to the hon. and learned gentleman. It might just as well be said, that the right hon. secretary of state had fixed his exposition of our foreign relations for last night, in order to prejudice the discussion of the present evening.
Having, thus endeavoured to vindicate himself from the censure of two parties, one of which thought him too bold, and the other too lukewarm, he should now proceed to discharge the duty which he had taken upon himself. It had reached his ears, that when the right hon. member for Cavan moved for certain papers, for 967 which he too had also asked, it was imputed to that right hon. member, that he had brought forward the question from party motives and from party prejudices. He was sure that the right hon. gentleman deserved no such imputation. He was sure that he himself did not; and he therefore disclaimed it now and for ever. He would admit that if the present were a question of utter indifference, instead of one on which the most intense Solicitude was felt, on account of its intimate connexion with that important bulwark of British liberty, the trial by jury, then, indeed, it would be fair to look about for the extraneous motives which could induce gentlemen to come forward upon such a question: but, as it was, he claimed the protection of the House against any imputation of motives to him, which were not clearly discernible from the motion with which he intended to conclude. The question was not a question of petty or local interest, but was simply this—Would the House of Commons allow the attorney-general for Ireland to place himself in the situation of a grand jury, and to question individuals upon matters of criminal charge against them, after a grand jury had declared that the matter against them was neither probable nor true? Nor did this question relate to Ireland merely. For, if the attorney-general for Ireland were that night sheltered from censure, it would not be long before the attorney-general for England would come down to the House, armed with his example, and eager to use it as a precedent, and would turn against the state the sword which they would put into his hands that evening, if they declared the conduct of the attorney-general for Ireland undeserving of blame. He had found a sentence in Tacit us which he conceived might be very fairly applied to such a contingency. That great historian had declared, that the Roman general Agricola had often told him, that he conceived the subjugation of Britain could not be completed without first effecting the subjection of Ireland; and that the prior subjection of that island would be advantageous to the Romans on this account, that by it "velut è conspectu libertas tolleretur." He would ask the House whether, if such proceedings as those which had lately been witnessed in Ireland were thought defensible, they could say that it might not be the intention of 968 a future government, nay, even of the present government, to commence the enslaving of England by accustoming its inhabitants to the sight of arbitrary acts in Ireland, and to bring home to the bosom of the empire the vindictive prosecutions which it had recently instituted in its distant extremities? He would ask any of the hon. gentlemen whom he saw around him, how they would like to be attacked without the intervention of a grand jury, and would then bid them reflect how much more vexatious and ruinous such an attack would be to persons in an inferior rank in life. True it was, that they might afterwards be saved by the verdict of a petty jury; but that would prove a slight consolation to men who had been harassed in spirit and broken down in purse, by the expense to which such vindictive prosecutions necessarily subjected them.
He now came to the facts of the case. Every gentleman had heard of the dressing of the statue of William 3rd, on the 4th of November. It was a custom of long continuance. In looking over some old papers, he had found a proclamation issued a hundred years ago, offering a considerable reward for the discovery of a villain who had stolen the truncheon from the hand of the monarch, after he had been dressed. Almost the very first act of the marquis Wellesley's administration was, to forbid the dressing of this status: with the millinery, which, in the phrase of the attorney-general, had for so many years been wasted on it. He was free to confess, that he conceived the dressing of this statue to be a very mischievous act on the part of those who did it, and he wished the House to understand that he did not intend to vindicate their conduct. He declared before God, that he would equally have laid bare this arbitrary transaction, had the traversers been Roman Catholics, and the attorney-general the grand master of the Orange Lodges of Ireland. He had nothing whatever to do with any of the political or religious feelings which at present divided and distracted Ireland: indeed, he considered them, in this instance, to be a vulgar intrusion upon a question which had no sort of connexion with thorn. It was the proceedings to which the attorney-general had conceived it necessary to resort that had revolted him, and outraged the feelings of every lover of the consti- 969 tution. He need scarcely inform the House, that after the proclamation of the lord-lieutenant, forbidding the dressing of the statue, there was a strong feeling excited among the lower orders of Ireland, of much pride on the one side, and of great disappointment and passion on the other. Whilst public feeling was in this state of excitation, the lord lieutenant went to the theatre; and, when he was there, the event occurred out of which these proceedings originated. He regretted those events as much as any man: he regretted them, because lord Wellesley, from his anxiety to govern Ireland for its good, from his venerable name and exalted talents, had a right to expect a very different reception from his countrymen. He did not speak a limited sentiment upon this point. It was the language of Ireland generally. The utmost indignation at the outrage had been felt in all parts of the island; and it had been also felt, that there existed the strongest necessity to vindicate the national character, and to let the blame fall, where, after due inquiry, it was found it ought to rest. He would venture to say, that had the offenders been met only with common temper, common patience, and common measures—had they been committed on a probable or even on a possible charge—not a scintilla of sympathy would have been raised in their favour, from one end of Ireland to the other. But the king's attorney-general seemed to have been impelled by some evil genius to talk of assassination; and, from that moment, the most effective weapon of ridicule was employed against the whole matter; for every body saw in an instant, that the charge was utterly impossible, not only from the respective situation of the parties, but from the nature of the missile employed. This showed the intemperate lengths to which dependents of the Crown, officers removable at pleasure, might be urged, perhaps from honest motives, and under the impulse of irritated feelings.
It was very material in this stage to inquire how assassination was intended, and how it was attempted to be carried into effect. He should not have so much referred to these points, had they not led to the incarceration of men who were mingled with common felons, until the arrival of the assizes. Was a Wellesley, be would ask, of all men in the Country, to be frightened out of his wits 970 by hisses and other marks of disapprobation, in a theatre? He entreated the attention of the House to the circumstances attending this memorable transaction. The lord-lieutenant took his seat in a recess of the theatre on the left-hand side: the assassins as they had been called, occupied a bench in the upper gallery on the same side of the House, where they could not even see the lord-lieutenant. They took the very worst place they could select for their bloody purpose; and from whence it was impossible for the most dexterous hand to reach the lord-lieutenant with any missile yet invented by human ingenuity; unless, indeed, with one of those guns, he believed known only in Ireland, which possessed the peculiar talent of shooting round a corner [a laugh]. With such a weapon alone would it have been possible for these men to have dealt death and destruction to the king's lord-lieutenant of Ireland. According to the attorney-general, they meant to commit assassination: but, did ever men take such measures to accomplish such an object? They went to a place where they could not see the object of their hatred; and they went armed with a bottle and a rattle! As to the evidence to support the charge of assassination, all was conjecture; all information having been withheld. It was to be presumed, however, that it was conclusive, and irresistible; for nothing else could justify the incarceration of the accused. No bail would be accepted; the four walls of a prison were their sureties; and in that prison they were left to spend their Christmas holydays. There had been no hesitation, no pause, no suspension of opinion. The event took place on Saturday the 14th of December, and on the following, Monday, marquis Wellesley returned his thanks to Mr. the bookseller, for having succeeded in securing the miscreants who had attempted his life at the theatre, and then assured him that no dangers to which he might be exposed, that no attacks upon his life, should disturb the even tenour of his government. He (Mr. B.) of course expected to hear that night of packed juries and party prejudices; but he would assert that the whole of Ireland had been packed and prejudiced by extravagant addresses and as extravagant and ill-timed answers. The unfortunate persons accused had been prejudged by the last man who ought to have opened his lips against 971 them—the party concerned; and they seemed to have nothing to do but to submit and to surrender up their lives at the bidding of the attorney-general.
At length, the sessions of Oyer and Terminer arrived; and then, for the first time, the attorney-general intimated his intention of not proceeding capitally against the culprits, though he took care subsequently to state, that he possessed abundant evidence to support the capital charge, but relinquished it, "because the laws were never so powerful as when administered in mercy." If, indeed, the attorney-general had evidence sufficient to support the capital charge, no state reasons, no considerations of policy could justify him in with holding it, and thus harbouring in Ireland a nest of assassins, who, though they had failed in this attempt, might succeed on another occasion. To talk of mercy in this transaction, was begging the whole question, and taking it for granted that the original committal could be justified. There was no mercy in committing men for a capital felony without evidence. It was said of mercy, that—"it is twice blessed:It blesseth him that gives, and him that takes.but the mercy of the attorney-general did neither: it left the accused parties all the days of their lives under the odious charge of having attempted to murder the lord-lieutenant; and it left the attorney-general under the suspicion, that he had examined into the facts, not with the intention to do justice, but intemperately to commit men upon testimony, which he was afterwards afraid to produce in a court of justice. The poet he had just quoted had observed, that "the quality of mercy is not strained," but the quality of the attorney-general's mercy must be strained indeed to afford any sort of resemblance. The whole information regarding these committals ought to be brought before the House. No man could now say who was right and who was wrong, and whether the depositions bore out the accusation. It was very easy for the attorney-general, who was in possession of the papers, to come to any conclusion he pleased; but in their absence he (Mr. B.) could not divest himself of the suspicion that all was not right, and that there was something behind that needed concealment. It might be answered that if produced, they would af- 972 ford evidence very unfairly against the committing magistrates; and certainly, nominally and formally, according to law authorities, an action on the case, as it was called, might he against them. But this case had been taken out of the ordinary jurisdiction—it had been made a state offence—it was not investigated at the police-office, but in the Castle-yard; and the committals were made out, it was believed, not merely with the knowledge, but at the direct dictation of the attorney-general. If he was so fond of ex officio informations, and thought that law and justice could only be properly vindicated by such a power, the proper objects of them were the witnesses, who by their falsehood and villainy had imposed upon the attorney-general, by pretending that an attempt had been made upon the life of the lord lieutenant. "When witnesses for the king endeavour to pervert justice and to destroy the king's subjects, their malice and perjury being proved, the king's attorney-general ought ex officio to prosecute them in the king's name, &c., and the legal form of the indictment ought to be, for swearing falsely and maliciously against the peace of the king, his Crown, and dignity." Such was the language of no less a man than lord Somers, in a work which he entitled "the Security of Englishmen's Lives, or "the Trust, Power, and Duty of Grand Juries of England." Two bills had been sent up by the attorney-general to the grand jury. The one for assassination was ignored; but that alleging a riot was found against the persons accused. If fault attached any where on this proceeding, it belonged to the attorney-general, who injudiciously inserted in the indictment the words—cum multis aliis. He had no right whatever to complain: he had informed the House and the public that, if the bills had been found against all the rioters without any finding of a conspiracy, he would not have proceeded. It was the conspiracy that he wanted, and the object was, to discredit "the gang leagued together against the king's lieutenant, in order to force him to change the measures of his government." As to the merits of this "gang," as it was called, he (Mr. B.) would offer no opinion; but he would take the liberty of observing thus much:—suppose the attorney-general were removed from his present situation by preferment—suppose him succeeded, as he was preceded, by an attorney-general of different political views; or suppose 973 him to change his principles,—every man would, in fact, be a "gang" who did not happen to agree with the attorney-general. He would see nothing but gangs in every independent man. Members who endeavoured to restrain the public expenditure, and reformers, would all be gangs and conspirators; as their whole object was, to dictate some change in the measures of the government. Every man and every set of men would be conspirators, and deserve to be put down by an ex officio information, who should be of different opinions from the government. The attorney-general affected to be much surprised when he found that a grand jury had ventured to ignore his bill; he expressed his hope that they had done their duty," and added, that "it was a matter between God and their consciences." He had also his duty to discharge; and since the law had placed him in the stead of a grand jury—since he was un sworn and perfectly disinterested, and though only one, equal at least to 23 sworn and interested individuals, he would place the men n their trial, because he thought he had never heard clearer evidence of conspiracy and riot. He considered the grand jury very touchy and sensitive men, because they had taken umbrage at his proceedings. What did he mean by reminding the grand jury that it was "a matter between God and their consciences," if it were not to impress the public mind with the idea that they had forgotten the solemn obligation of an oath? More injurious or more arbitrary proceedings had never been adopted towards a grand jury since the Revolution. In the whole course of his reading, he had not been able to discover any precedent, save one, which he would state to the House. He did not mean to institute comparisons: they were always odious, and particularly in the present instance; because it would only be to compare a highly gifted and he would fain say liberal man, of our own day, with the notorious sir George Jefferies, in the reign of Charles 2nd. In 1680, a bill was sent up to the grand jury against one Francis Smith, for having composed "a malicious, scandalous, and seditious libel." The grand jury returned ignoramus, and threw it out. Judge Jefferies took the course recommended by Blackstone: he sent the bill back to the jury, and they again returned ignoramus. He sent up the bill a third time, and a third time the jury were contumacious. Upon which 974 Jefferies vilified the grand jury in open court, saying "God bless me from such jurymen; I will see the face of every one of them, and they shall repeat separately what they think of the bill." The bar was cleared so that the judge might see the grand jury distinctly, and the clerk put it to each of them whether Francis Smith was or was not guilty; and each of them answered ignoramus. Jefferies then reminded them "that they were upon their oaths," and, in much the same words as those used by the present attorney-general, informed them, that it was a matter between God and their consciences; adding, that he feared it was impossible for God, in heaven, to pardon their perjuries. What was the result? Did Jefferies file an ex officio information against Smith? No: he ordered him to be set at liberty; so that the attorney-general, In this case, had even gone beyond the patron of oppression and cruelty, who would not have hesitated a moment to file an ex officio information, if there had been the slightest colour for it. This precedent showed how strangely extremes sometimes met, and what singular coincidences, even of expression, there were in persons whose habits and feelings, it was to be hoped, were diametrically opposite. If attornies-general were authorized to file ex officio informations, whenever a grand jury threw out a bill which the law-officers of the Crown approved, it came to this—that grand juries were very respectable bodies as long as they conformed to the will of the attorney-general; but, the moment they effectually interposed their judgment between the prerogatives of the Crown and the privileges of the people—that was to say, the moment they discharged the duty for which they were originally established—they were to be declared factious, political, and prejudiced, and to be denounced as so many wild men, or rather so many wild beasts, with whom there could be neither concert nor co-operation. Far better would it have been, that these men should have escaped by the verdict of a grand jury notoriously corrupt, than that any irreverence should be shown to that tribunal, which, to use Blackstone's words, was a two-fold barrier between the prerogatives of the king and the privileges of his people. The hon. member read at length Blackstone's well known words upon this subject, observing, that the object of the learned judge was, to show, that if this two-fold barrier were over- 975 leaped, as it had been in this case, the liberties of Englishmen would be brought into jeopardy, and a precedent might be established for the utter disuse of grand juries. If any gentleman had ever felt proud at serving on the grand inquest of his country, let him feel proud no longer. If this course were pursued, his occupation was gone: he might, indeed, be entrusted with the superintendence of breaking stones and spreading gravel—he might even judge in matters of private property—but his duty, as regarded the criminal law of the land, was at an end; and it would be better at once to abolish an institution which would remain but a mockery and an insult to the people. When the opinion of a grand jury fell in with that of an attorney-general, then it was all well, and as a matter of decency the institution was preserved; but, if they ventured to stand between the Crown and its subjects, then it was to be put down and its verdict attributed to the basest motives. The hon. gentleman then proceeded to quote a further passage from the tract by lord Somers, to which he had before referred, in which, in allusion to the case of Empson and Dudley, it was said, that "he who renders grand juries useless is not less criminal than he who abolishes them altogether; and he who goes about to take them away, or to give them up, is like to meet the fate of Ismael, to have every man's hand against him, for assuredly his hand is against every man." The great charter declared, Nullus liber home capiatur vel imprisonetur, aut aliquo modo destruatur, nisi per legale judicium parium suorum vel per legem terræ and there were no less than eight statutes in the reign of Edward 3rd, to the same effect. What had brought the star chamber into disrepute, and finally occasioned its abolition, but because it occasioned the disuse of grand juries? Lord Coke and sir M. Hale, in allusion to ex officio informations, had declared, that the more safe, regular, and constitutional proceeding, was by indictment. He did not produce these authorities for the sake of contending for the illegality of ex officio informations after a bill had been ignored: he wished with all his heart that he could that night establish their illegality; seeing what an engine it was in the hands of an attorney-general to crush any man or set of men obnoxious to government: but, he maintained, that they were contrary to reason, and to all the principles of the 976 British constitution. Of one thing he was quite clear—that never until now had an ex officio information been filed after a bill of indictment had been ignored; from the Norman conquest to this day, there was not a single precedent of the kind. The attorney-general, indeed, maintained that there was a precedent. The precedent was this—In the reign of queen Anne the play of Tamerlane was to be acted in Dublin, upon king William's birth-day. The author had indulged very freely in compliments to the talents and virtues of king William, and a prologue, by Dr. Garth, was generally added to the play; which carried its commendations of the late sovereign to a height not quite flattering, perhaps, to the reigning one. Queen Anne, jealous possibly of the applause bestowed upon her predecessor, forbad the speaking of the prologue. A Mr. Dudley Moore, who was in the House, thought it hard that the prologue should be prohibited, and jumped upon the stage to repeat it himself. This proceeding led to a riot in the theatre, and subsequently to a government prosecution. And now he came to what was relied upon as a precedent. A bill of indictment was seat up to the grand jury, charging Mr. Dudley Moore with riot and conspiracy. The grand jury examined the bill, and determined to ignore it, but the foreman, by mistake, wrote "a true bill," instead of "no bill," upon the parchment; and the bill going down into court in that state, Mr. Moore was put to the bar and called upon to plead; nor was it until the grand jury had made affidavit of their mistake, that the bill was quashed, and Mr. Moore relieved from pleading to the indictment. Now, under those circumstances, certainly, the attorney-general of the day had thought fit to file an ex officio information against Mr. Dudley Moore. He had said to the grand jury, "If you do not find the bill, I will put the defendant on his trial;" and thereupon the right hon. gentleman claimed precedent for filing an ex officio information after bill of indictment ignored! But, could the right hon. gentleman go a step further with his precedent? Could he make it one point beyond the surface a precedent available? Could he say that he had a precedent for ex officio information tried after bill of indictment ignored? No: for the matter had been brought forward in the Irish House of Commons; a committee of gentlemen of the learned 977 profession had been appointed to examine whether any precedent existed for the proceeding; and that committee had distinctly reported, that the thing was without example in the jurisprudence of the country. Surely, if this was a precedent, it was a precedent against the right hon. gentleman, and not for him. He wished the attorney-general to take the full benefit of it. A precedent in the right hon. gentleman's favour! It was a beacon—a flaming beacon—to warn all attornies-general—to show them how far they might go without the risk of parliamentary interference.
His charge against the attorney-general in the present case was for the adoption of harsh, oppressive, and unprecedented measures—measures tending to the prejudice of the individuals concerned, and to the public disadvantage. His charge admitted the legality of the proceeding. The very place in which he made that charge was a recognition of its legality. If there had been a bar—a regular bar—in a court of law, to the proceeding, it would have been needless for him to have come to the House of Commons with his case. It was urged, that the attorney-general must have the right of proceeding ex officio after a bill ignored, or the Crown would be placed in a worse situation than any private individual. Why, granted. And it was fit that the thing should be so. In the first place, it was infinitely less dangerous to concede such a privilege to an individual than to the Crown; and again, there was an infinite difference between a court's granting an information to an aggrieved subject, and an attorney-general's filing one at his own personal will or caprice. An individual claiming an information against an individual, claimed it at his own personal risk. He was obliged to enter into sureties; and, if he forbore to prosecute, or suffered a noli prosequi to be entered, his sureties were liable to be estreated for payment of the costs. But the Crown could pay no costs; it entered into no recognizances; and an attorney-general, so disposed, might go on filing informations, and harassing men with cruel prosecutions interminably. The fact of the Crown being a party in any case was of itself a most important circumstance. That the same laws might be most equitable between the people and the people, and yet most inequitable as between the people and the Crown, was 978 a principle which no man could contend, against. It was proved most fully in the case of ancient Rome, the value of whose civil institutions was universally admitted, while her political code amounted to a system of unlimited slavery. Surely it was not quite a singular case to find the Crown destitute of power enjoyed by the subject. The king had no power to arraign a man upon appeal for robbery or murder; but the subject could do it, and bring the offender to punishment.
But, the conclusive argument, as it, was supposed to be, on the other side, came to this, that the course which had been taken belonged legally to the attorney-general. He (Mr. B.) said, that the grand jury was one of the barriers of defence to the people; it was the balance, as regarded the subject, to the power of the executive force. The course which had been taken by the right honourable gentleman was insisted upon as legal. Then it was a legal attempt to subvert the principles of the constitution, and to turn that power to the people's prejudice which was intrusted to the sovereign for their benefit. He was told that the act was legal. He cared not whether it was legal or no. Charles 1st had been told that ship-money was legal: he had acted upon that opinion, and that course had led him to the scaffold. James 2nd had been told by dependent and corrupt judges, that he had power to dispense with the laws of the land; the exercise of that power had cost him his Crown, and his descendants had been exiled for ever. It was said, that the course was legal. Legal or illegal, would it have been taken in England? Suppose the secretary of state for foreign affairs were to go to the theatre in this country, and that a party, who thought he had not sufficiently exerted himself in vindicating the cause of Spain, were to meet at a coffee-house adjoining Covent-garden, and to organise a plan for hissing that right honourable gentleman, and driving him first from the theatre, and subsequently from the king's councils. Suppose a bill of indictment were afterwards preferred against these individuals, and that the grand jury ignored it; he wished to know whether, in such a case, the English attorney-general would have ventured to file an ex officio information-against them? He believed the attorney-general in this country would not, have dared to take such a step. Then why 979 talk of the thing being legal? Was the nature of the proceeding changed by occurring on one side of the water instead of the other? Was it meant to contend, that the same thing would be legal and constitutional in Ireland, and absolutely odious and intolerable in England? The question was not: how far upon strict law the proceeding in question could be borne out; the question was—had it been a constitutional proceeding, an expedient proceeding, or a proceeding which, under similar circumstances, would have been adopted in this country? He was of opinion, and it behoved him so to state, that it was not a proceeding of that character; and should therefore move, by way of resolution:
"That it appears to this House, that the conduct of his majesty's attorney-general in Ireland, in regard to the persons charged with committing a riot at the theatre royal in Dublin, on the 14th December last, particularly in bringing them to trial upon informations filed ex officio, after bills of indictment against them for the same offence had been thrown out by a grand jury, was unwise, was contrary to the practice, and not congenial to the spirit of the British constitution, and ought not therefore to be drawn into a precedent hereafter."
said, that in rising on such an occasion as the present, the House would naturally suppose that he felt some degree of embarrassment. He had listened with great attention to the speech of the hon. gentleman. Many of the observations which had fallen from him were entitled to his entire approbation, and, allowing for some undue warmth which had characterised a portion of his speech, he was rather disposed to thank than to blame the hon. member for the temper in which he had brought forward this subject. But, at the same time that the hon. member had entitled himself to this acknowledgment, he could not but observe that he had indulged himself, in a very considerable degree of latitude, in the charge which he had felt it his duty to bring against the individual who now addressed the House. He could not help complaining, that when the hon. member brought forward a specific charge against him far having filed an ex officio information, after a bill of indictment had been ignored by the grand jury, he should have endeavoured, by all the powers of his eloquence, to involve him (Mr. P.) 980 in all the odium which attached to the system of ex officio informations in general. The argument of the hon. member went the length of arraigning the power of the Crown to file ex officio informations in all cases, whether through its law officer or the court of the King's bench. The hon. member had contended, that a grand jury was the constitutional barrier between the prosecutions of the Crown and the safety of the subject; but, if it were essential to the safety of the subject that a party should in no case be put upon his trial without the intervention of a grand jury, the whole system of informations must fall to the ground. If the proceeding by information were odious, illegal, and unconstitutional, he (Mr. P.) was not liable to the charge of having imported it from Ireland; for among all the institutions incorporated into the law of this country, there were none of more unquestioned antiquity and admitted legality, than the proceeding by information. If such a proceeding were opposed to the genius of our free constitution, it was somewhat extraordinary that it should not have been abolished in the lapse of a thousand years. He would admit, that no length of antiquity could sanction a practice which could be shown to be wrong; but he must think it somewhat bard, that he should be selected as the object of censure, and that his conduct should be compared with that of sir George Jefferies, of infamous memory—with that of Empson and Dudley, and all persons who had inflicted misery on their country, and whose acts had brought down vengeance on their own heads. It was rather too hard that the accumulated odium of a thousand years should be reserved for this day, and thundered on his devoted head. The hon. member had contended, that the functions and privileges of a grand jury were impeached by this proceeding. It was impossible that any thing could be more eloquent, or more calculated to excite an auditory, than the observations of the hon. gentleman. He had touched a string which could not fail to vibrate. But, to what extent did the hon. gentleman mean to lay down the principle. Did he mean to say, that no criminal proceeding could be instituted without the intervention of a grand jury? He admitted that the functions of a grand jury ought not to be called in question, nor could any public functionary be guilty of a more gross breach of decorum 981 than by vilifying a grand jury for the exercise of that discretion with which the constitution had invested him. But, was there any thing in his (Mr. P.'s) conduct which could justify acomparison with that of the odious Jefferies? When the grand jury returned their verdict, he was free to say, that he, in common with the court and auditors, was filled with astonishment, and that he did say on that occasion—"They have a duty to discharge within their province on their oaths, and they have exercised their discretion; I also have a duty to discharge, and, with the blessing of God, I will discharge it fearlessly and honestly!"—After hearing all the arguments which had been urged against him, he did not feel that he had been guilty of any thing that was inconsistent with the law and constitution of the country. He would put it to the candour of the hon. member, whether it was fair to couple any observations upon his conduct, with a reference to the filthy, the disgusting Billingsgate, which flowed from the lips of sir G. Jefferies, when he reprimanded the grand jury, and sent them back a second and a third time? But, said the hon, gentleman, though Jefferies sent the grand jury back a second and a third time, he did not venture to file an ex officio information. The reason why Jefferies did not proceed to this extremity had not occurred to the hon. gentleman, but it was a very simple one; Jefferies was not then attorney-general, but chief justice of the Court of King's-bench, and had no more right to file an ex officio information than the hon. gentleman had.
Another ground of complaint, against the hon. gentleman was, that it was utterly impossible to collect the extent of the charge which he had brought against him. The hon. gentleman had introduced a charge unconnected with the present question; namely, that of his (Mr. P.'s) having advised the committal of the parties for a capital offence, who were afterwards prosecuted only for a misdemeanor. This question had been already disposed of by the House, nor was there, in point of fact, the slightest evidence to shew, that the parties were committed at his (Mr. P.'s) desire.—The hon. member had brought forward a motion for censure without any evidence to support it, but he would not act so unworthy a part, as to shelter himself behind the total want of evidence. The magistrates who committed those individuals were responsible 982 for their own act, and there was no evidence that they had resorted to his (Mr. P.'s) advice. He would frankly avow, however, that the magistrates did resort to his advice. The hon. member said, he had been assured by high legal authority, that no man ought to be committed on a capital charge, unless there was irresistible evidence of his guilt. He begged to say, that no such irresistible evidence was necessary to warrant a committal upon a capital charge. In the present case, he had held himself bound to advise the committal upon a capital charge, although he did not think it advisable to follow it up by a capital prosecution. The information upon which he had advised the committal had not been laid before the House. It had been very properly withheld; not for the purpose of screening himself, but for the purpose of protecting the magistrates. He, however, was perfectly ready to meet the hon. member, and to state the grounds upon which he had given that advice. He was perfectly ready to state again the grounds upon which he had acted; and he felt it due to his own character and honour to shew, that he had not subjected any man to the deprivation of his liberty, on hasty, light, or insufficient grounds. When the parties had first been taken up, they had been committed upon the charge of misdemeanor. He (Mr. P.) had at that time only heard the circumstances attending the riot; and, although he had thought them daringly outrageous, he had not thought that they amounted to what would constitute a capital charge. Some persons in the theatre had done that which endangered the life of the lord-lieutenant; but he had not seen any thing to warrant his believing that there had been a conspiracy to take away the life of the lord-lieutenant. In the course, however, of the seven days' examination which followed, facts had come out which tended to show that the riot had been the result of premeditation, and that the person who had been the principal agent in the conspiracy, and who had assisted in packing the house for the purpose of making the riot, had connected himself with the attack upon the person of the lord lieutenant. It had been attempted to throw ridicule upon that attack, through the implements with which it had been made. It was easy to make jokes upon a rattle or a bottle; but neither a rattle nor a bottle would be a very pleasant joke, if flung at the head of any hon. gentleman. 983 If that bottle had struck the lord-lieutenant on the head, instead of striking the cushion of the box in which he sat, it would in all probability have taken away his life. And, what followed the throwing of these weapons? Why, Mr. Forbes at once expressed his regret that they had missed. One of the offenders, declared, that they were determined to hazard their lives for the attainment of their object, and hoped, on another opportunity, that they should be more successful. It was said that this man was infuriated with drink, and that he should not be made responsible for words so inconsiderately spoken. But, the same intemperance, the same uncontrolled fury of passion, which allowed him to use these expressions against the lord-lieutenant, might prompt him to deeds which would put the life of his excellency in peril; and he (Mr. P.) would not have discharged his duty, if he had not advised until full deliberation upon the proper mode of prosecution could be had that the parties should be held in custody. Accordingly, three persons were arrested; the man who flung the bottle, the man who flung the rattle, and the man who had made use of the expressions before mentioned.
There was one thing to which he would entreat the attention of the House, and particularly that of the country gentlemen; and that was, the state of the law and the practice with regard to the conduct of grand juries. He trusted he should be able to satisfy the House, that it was no novel, violent, or unconstitutional thing to question their decisions. He hoped to be able to show that there was nothing in it so very hostile to freedom, or so adverse to the spirit of the constitution as had been alleged. In doing this he would, in the first place, point out that trials upon information were really the law. This was the more necessary, not only on account of what had been said by the hon. gentleman, but on account of what had been detailed in newspapers, and taken up and repeated till the ears of the country had rung again. On this account he felt it necessary to go at some length into the proof of the legality. In the first place, there was no point of the law more clear than this, that the ignoring of a bill by a grand jury was no bar to subsequent proceedings by indictment. Nay, the bill might be again and again sent to the grand jury, and again and again, ignored, to ties quoties. It might be questioned by 984 the same grand jury or another, and from this it was evident that the verdict of a grand jury was not a sacred thing. In the next place, he hoped he would be able to shew, that the method of proceeding by indictment upon information was as old as the constitution, and, as such, formed part of the constitution itself; that it formed a part of the general administration of justice as much as any thing else which belonged to that administration; and not only that, but the reason was distinctly assigned: namely, to guard the Crown and the public against the defects of the administration of justice. Before the Revolution, this power of filing informations was assigned to two officers—the king's attorney-general and the master of the Crown-office. The attorney-general exerted it for offences which were peculiarly against the king's person or government. The master of the Crown-office exerted it for the prosecution of offences of a lower degree, which were not so easily rendered amenable to the ordinary process of law. Each of these officers was at liberty to exert the right of filing informations: their power was co-existent; one of them could do it to the same extent as the other; nor had one of them greater authority than the other. This was the case down to the time of the Revolution. The hon. member had referred to this power, as if it were a remnant of the jurisdiction of the star-chamber, so justly odious. Whereas at the abolition of the star-chamber tribunal, a period remarkable for the constitutional jealousy of parliament, it had been expressly stipulated, that nothing in those proceedings should impeach the right of the Crown to proceed in particular offences by filing informations. This of itself proved, that the power, even in the period of the greatest jealousy as to the liberties of the country, was held to be quite compatible with the constitution. The right of the Crown had been exercised in the manner he had before described, down to the period of the Revolution. The act of the 4th and 5th William and Anne, 'introduced some new regulations. In the debates upon that act, the mode of proceeding by information was brought into question. Some members were of opinion, that it would be a good thing to get rid of it altogether. Repeated conferences were had upon the subject; and especially upon that part of it which related to informations consequent upon parliamentary proceedings. The 985 act at length passed, by which the power before enjoyed by the master of the Crown office was brought under very considerable restraints, and that officer was disabled from proceeding by information, except under the permission of the court of King's bench, to which he must address his application under affidavit. But the power of the attorney-general was reserved unmolested, and was to exist in just the same extent as before the passing of the act; and therefore the attorney-general must be considered as having the same power and discretion in proceeding by information, as the master of the Crown-office had before the statute of William. The act gave the attorney-general no power which was not enjoyed by the master of the Crown-office. It did not enlarge the jurisdiction of the King's-bench in any degree. He prayed the House then to attend to the direct and reasonable inference. If the attorney-general had a power co-extensive with that of the master of the Crown-office before the passing of the statute, so he must be held, as far as the right of filing informations went, to hold a power co-extensive with that of the court of King's-bench. At any rate this could not be disputed with him in regard to that class of informations which went to prosecute offences against the state. If this were not admitted, they would be driven to the monstrous conclusion, that before the statute of William, the master of the Crown-office had greater power and authority than the attorney-general, a proposition much too wide for discussion; and therefore he would not involve the House in it. He thought he might safely assume that the attorney-general enjoyed this power in a concurrent degree with the court of King's-bench and that he was at liberty to proceed by information or indictment, acccording to his discretion. He appealed to the professional members, if there was a single case in the books which affected to establish a difference, as to the rule of law, between proceedings by indictment and by information. It was the clear and established principle of law, that no subject could be called on to plead to, or be tried for, the same offence twice. But, there was no protection from further proceedings until after the trial. Now, the presentment before a grand jury was no trial; it was only a proceeding towards a putting the defendant on his trial; and therefore he must show, not the decision of a grand jury, but the acquittal by a 986 petty jury, He defied any lawyer to show that the application of the principle had ever admitted any distinction between proceedings by indictment and by information. Ignoring the bill was no bar to a new prosecution either way; nor any thing short of an acquittal by a tribunal competent to try the information.
To establish these points, he had had recourse to that place where alone it was possible to come at the precedents which guided him; and he would now proceed to state what were the results of that investigation. The case had all along been treated, as if it were something quite new to have recourse to an information after the ignoring of an indictment, and as if he had acted in a manner highly indecorous in making any remark on, or attempting any opposition to, the finding of the grand jury. The House would see how this assumption accorded with the fact. The Crown-office had been searched, and he was now to inform the House what was the result. The first case was, the "King against Hope" (Trinity Term, 8 and 9 George 2nd). The motion was for an information on a charge of trespass and assault. It was insisted in the defence, among other things, that the prosecutor had already proceeded by indictment, which was ignored by the grand jury. This was the very case on which they were now at issue. Yet there was no condemnation on those who questioned the exercise of these functions by the grand jury—there was no complaint of throwing a slur, or attempting to discredit them. It had been asked, was it not most unjust to impeach the conduct of those who, being sworn to secrecy, could not be allowed to explain. This, if true, was equally applicable to the court of King's-bench. But, the fact was, that neither the court nor the grand jury were called on for a defence. The question was not between the court and the jury, but between the criminal and the public—whether offenders should be allowed to escape through a failure in the exercise of the functions of grand juries or not. The defendant, in the case before-named, pleaded that an indictment which had been presented was ignored. The answer given by the court was, that the ignoring of the bill was the very reason why the information should be granted; and that it was one of the great privileges of the subject to be secured, by this mode of proceeding, from the loss of his just re- 987 medy on cases where, from little party heats and local irritations, that was likely to happen; and this was assented to per totam curiam. It appeared from the report, that the grand jury attempted to send the witnesses away; that they were unwilling to ask them any questions, and appeared to wish to turn the whole matter into ridicule. Here was not only the case of passing by the decision of the grand jury, but the particular grounds of conduct in the grand jury were also alleged. Here were reasons given, which went beyond the statement just now made by the hon. member. And who said this? He could assure the House he was not using the words of judge Jefferies, nor of Empson or Dudley; nor of any other of the odious authorities with whom he had been compared. This was the decision of lord Hardwicke, in which it was declared, that the attainment of justice was not to be frustrated through little party heats and local irritations. The next case to which he would allude, was that of the King against Thorpe. This was a prosecution for a nuisance. In this case it was alleged that an ignoramus had been returned by the grand jury. This was not a case in which there were political ferments, and in which the jury had got into little party heats; yet, Mr. Bearcroft said, there was reason for filing the information, and lord Mansfield made the rule absolute, upon the ground that some of the grand jury had been influenced in favour of Thorpe. The next case was that of the present King against the Inhabitants of Berks, in the matter of the repairing of a bridge. From the affidavits it appeared, that this case had been sent to the grand jury, and had been ignored. A second presentment was made, when lord Folkestone was in the chair. This was again ignored; and it was presented a third time, when Mr. Dundas was in the chair; and it was a third time ignored, upon which an information was filed. He hoped he had now adduced cases enough to prevent the notion from becoming universal, that the inoculation of this obnoxious right had not been communicated by him; that the taint to the constitution could not be of his giving, but that it was as old at least as the time of lord Hardwicke. Now, if in this country, it was necessary to have a check over the local beats and the misconduct of grand juries, he would appeal to the House whether it would be safe 988 that a similar check should be withdrawn in Ireland? He had looked over files of the records of the courts in that country, and he had found no fewer than thirteen cases since the year 1795, and these had had the sanction of lord Clanwilliam, lord Kilwarden, and chief baron Downes. The first to which he would allude, was in February, 1795, and it was for perjury. Some of the other cases were trivial, but if in the strong ones there was misconduct, that was sufficient to establish the necessity of the right. In another case, the grand jury of Westmeath had thrown out the bill; and the affidavit stated, that this had been done by the address of one of the grand jury. He would pass over the other cases, except two, which were valuable; inasmuch as the affidavits upon which the informations were filed contained no charge of misconduct. These cases were, the King against Paterson, and the King against Crawford; and they were both for sending letters with a view to provoke challenges, and in, neither of them was any accusation made against the grand jury, further than that they had ignored the bills, by some influence unknown to the deponent. He should trouble the House with one more case, the more important as it referred to the very grand jury who had ignored the bills preferred by him. What would the House think, when he informed them, that at that very hour a conditional order of the court of King's-bench of Ireland existed, to set aside the finding of that very grand jury, on the ground of misconduct at the very same sessions? He had the copies of the affidavits on which that conditional rule was granted; but as the case was still pending, he felt some difficulty as to the manner of expressing himself from a reluctance to mention names. The affidavits allege the misconduct of the grand jury as the ground for setting aside their finding. The bill on which they found ignoramus charged A. and B. with a conspiracy to defraud a third party. A. got B. to make oath that he had received a sum of money for the purpose of defeating the claim of C. Two witnesses were examined. The grounds of misconduct, as alleged in the affidavits, were, first, the refusal to receive a letter of one of the accused, because they would have, nothing to do with a written document; and next, that they would not admit conspiracy, because the witnesses would not 989 swear that the parties committed perjury. The interrogatories were curious. "Did poor M'Mahon," said the jury (that was not the real name) "to your knowledge commit perjury." Witness—"No, the charge is for conspiracy." The witness was then shown the door [Hear, hear!], and the bill was ignored.
He had now concluded his reference to cases, and should next apply himself to the argument that was drawn from the want of precedent. He had been asked, if he was justified in the course he had taken; where were his precedents? Where, he would ask, in all the cases he had alluded to, could they have looked for a record? The truth was, that where, after a bill being ignored, an attorney-general subsequently filed an ex officio information, it was impossible that, either on the information, the evidence, or the defence, the finding could be found; as it was wholly immaterial to all. When, therefore, be was asked for precedents, his answer was, that from the nature of the question, it was impossible to produce them. And yet the hon. mover had been pleased to taunt him with having pursued a course for which he could produce no precedent in the history of the country. Every man acquainted with the subject was aware, that it was rarely that an attorney-general felt it necessary to seek the intervention of a grand jury. He had, however, in the present instance, deviated from the custom, and made a reference to that "constitutional barrier;" but, after the lesson that had been read to him, he was free to confess, that he did not feel much disposed to repeat the application. No man would deny that the treatment the king's representative received at the theatre at Dublin, was of that marked character, as to have justified his majesty's attorney-general in having recourse to the habitual practice of both countries, and filing an ex officio information. What, then, was his crime? Not that he had filed such an information, but that he had gone to a grand jury. It was for this crime that he had been assailed with all the lightning of the hon. mover's eloquence; it was for this, that all the terrors of the violated constitution had been arrayed against him. But it was said, "it was a mockery to go to a grand jury, unless you were determined to abide by their finding." Such an observation was inconsistent with the first principles of justice. He could, 990 were it necessary, refer to cases where it was laid down by judges on the bench, that, with the view of saving expense to parties in the country, the reference to a grand jury in the first instance was desirable. But he could easily suppose a case where an attorney-general would feel a desire to have his own judgment backed by the opinion of a jury of sound and honest men. Was it therefore to be concluded, that if that functionary had reasons to know that, in place of that sound and honest opinion, the case submitted to that jury had been decided under sinister and improper feelings, he was therefore to allow the principles of justice to be defeated—that he was bound by a step in the pursuit of justice, to allow the ends of justice to be subverted? He would suppose the case of a grand jury, who, when a number of witnesses were introduced for examination, placed their hands on their ears, and threw their legs across, in evident demonstration of the determination to pay no attention—would any man, under such circumstances, assert that the principles of justice were satisfied? If in addition to this, it could be shown, that the finding of such a grand jury was wholly disproportionate to the evidence produced before it, would any sound mind venture to pronounce that such a jury had arrived at a legitimate decision? Admit the opposite inference, and what must be the consequence? It would be this—that the very constitutional barrier, emphatically dwelt upon by the hon. mover, and with the violation of which he (Mr. P.) was accused, would become inoperative. If, while it was open to the subject, redress was refused to the Crown, no future attorney-general would venture to go before a grand jury; and thus, by the very argument of the advocate of that great constitutional security, all its valuable results would be lost to the subject. It was, perhaps, unnecessary to state, that after the finding of a grand jury, the Crown could obtain no redress from the court of King's-bench. The language of the court was, that "We will not do it, because you, the king's attorney can do it yourself." If, therefore it was illegal, after a grand jury had ignored a bill, for an attorney-general to file his information, to the king would be meanest subject was entitled. The right hon. gentleman then proceeded to read from 991 Burrow's Reports cases, in which the court of King's-bench had refused to interfere with the finding of a grand jury where the Crown was a party, on the very ground that its interference was unnecessary, as the king's attorney possessed the power. With respect to the case of Moore, he should first say, that it was by accident, and from the peculiarity of the circumstances which arose out of it, that it was possible to cite it as a precedent. The grand jury had, in that instance, found the bill where they intended to find ignoramus. They subsequently made affidavits, stating it to be a clerical error, and with the hope of being allowed to rectify it. The court refused the application. The attorney-general, unwilling to put the party on his trial after such an admission from the jury, quashed the indictment, by issuing a noli prosequi. He then filed his information ex officio. The circumstances excited considerable public attention: the notice of parliament had been attracted to it. After an examination of the question, parliament petitioned for the removal of the judge (the House would mark that fact), while no complaint whatever was even suggested against the attorney-general, for filing his information. Here, then, he might rest his defence, did he not know that far more important considerations demanded of him to show that, in, the case of the Dublin grand jury, had he acquiesced in their finding, the ends of public justice would have been defeated. He would first apply himself to the finding. It appeared from the papers, only that night presented to the House, that thirteen witnesses had been examined before that grand jury, exclusively of other witnesses produced on the trial of the traversers. He had no hesitation in saying, that any impartial person, looking at the evidence, would at once declare that there was no part of that bill of indictment, whether it referred to the conspiracy, to the riot, or to the assault, that was not completely and demonstratively proved. There was no sound mind that would not admit that the men who could have brought themselves to such a conclusion as the Dublin grand jury had, could not have arrived at it by legitimate means. It had been distinctly proved, that a plan had been formed to commit a riot; that in furtherance of that plan, a number of persons assembled at the theatre; that a missile had been 992 thrown by Graham; that Forbes had gone the day before to the theatre to buy tickets for the purpose of packing an, audience—that Forbes was taken with the whistle in his hand with which he incited the rioters; that at a subsequent meeting at a tavern, he had expressed his concern at the failure of their purpose, and his hopes of success on a future occasion. Yet, with such evidence, the grand jury ignored the bill. He would candidly put the House in possession of what he felt to be the impressions under which that jury acted. It was his conviction—a conviction which he felt with all the force of a moral certainty—that they, the grand jury, conceived the plan of these rioters to be a very right and proper plan. They conceived that, when the lord lieutenant, in compliance with the expressed desires of his sovereign, had exerted himself to conciliate the various classes of the Irish people, and to put an end to the heart-burnings which had so long embittered that community, it was extremely proper and lawful, that certain persons, whom, for something or for nothing, he (Mr. P.) had designated as a "gang," should seize the first opportunity that presented itself, for marking their powerful disapprobation of such an acquiescence in the expressed commands of his majesty. To that extent they felt it highly proper the opposition should proceed; though they were not prepared to go the length of thinking that it was right to fling bottles and rattles at his majesty's representative. That, in his conscience, he believed to be the decided conviction of the grand jury—a conviction, he also believed, which the greater portion of the Dublin corporation did not consider erroneous. Such, indeed, was the statement of one of the counsel, who, on the subsequent trial, defended the traversers. It was, however, not the opinion of the chief justice who tried them; from whose charge he would read a short extract:
"Before I proceed to sum up the evidence, it will be necessary for me to examine a doctrine asserted by the traverser's counsel in opposition to what I have announced, as the opinion of the court upon the law of the case. It has been insisted, that in a public theatre, any man has a right to disturb and terrify the audience by expressing his censure, or approbation of public and political characters; that such right has been constantly exercised and enjoyed is the 993 theatres of both countries; and that such a disturbance of the peace, under such circumstances, loses its illegal character, and becomes excusable. There is no such right. It is a position not founded in point of law. If allowed to go abroad uncontradicted, it would be productive of the most dangerous consequences. The rights of an audience at a theatre are perfectly well defined. They may cry down a play or other performance which they dislike, or they may hiss or hoot the actors who depend on their approbation, or their caprice. Even that privilege, however, is confined within its limits. They must not break the peace, or act in such a manner as has a tendency to excite terror or disturbance. Their censure or approbation, although it may be noisy, must not be riotous. That censure or approbation must be the expression of the feelings of the moment. For, if it be premeditated by a number of persons confederated before-hand to cry down even a performance, or an actor, it becomes criminal. Such are the limits of the privileges of an audience, even as to actors and authors. But if their censorial power were to be extended to public or political characters, it would turn the theatre into a den of factious rioters, instead of a place of cultivated amusement, or, as some conceive, of moral improvement. What public man in any department would himself go, or would take his family to a theatre, if he were to incur the risk of being hissed or insulted by a rabble, instigated by ruffians, exasperated perhaps against him by the discharge of some public duty? We are, therefore, anxious to disabuse you as to this topic, which has perhaps not unjustifiably been used by the counsel for the traversers, but which we are bound to discountenance; and to tell you, that no length of time during which licentiousness may have remained unpunished, can be sufficient to sanction so mischievous a pretension, or protect it from the reprehension of a court of justice."
Such was the view of' the law as taker by the chief justice of the King's-bench. Such was not the view of the law taker by the Dublin grand jury. They, in then wisdom, thought the public conduct a the king's representative a fit and propel subject of animadversion and outrage at a public theatre. When they ignored the bills, they had determined to throw their protection around those who had seized the 994 first occasion of showing that the experiment of governing the people of Ireland under the protection of equal laws, was a dangerous experiment to him who had the virtue and the courage to try it; they had determined to give a decisive proof that in Ireland there was a power hostile to its population, and superior to the throne itself. It was in opposition to such feelings and such a determination, that he appealed to the law, as the functionary of the Crown. Were he even on the ground of form, to be made the object of the censure of that House, the principles on which he had acted would nevertheless be to him the source of unceasing consolation. It had been said, that he had no right to justify himself for the course he had pursued, by any reference to what the evidence on the subsequent trial disclosed. To that he must reply, that if any man found the conclusion to which he had arrived, borne out by results, he was entitled to refer to those results, in order to prove the propriety of the course he had adopted. What, then, was made manifest on that trial? It was proved, that a plan had been concerted at a meeting of an Orange lodge. It was with reluctance he introduced Orangeism into the discussion. He had lived many years in the city of Dublin, and in habits of intercourse with very respectable persons, supposed to be attached to such associations, and never in his life had he had any altercation with them. I have, however (said Mr. Plunkett), ever deprecated their existence. I hold them to be illegal, and subject to the penalties of the statute law. I consider an association, bound by a secret oath, to be extremely dangerous on the principles of the common law; inasmuch as they subtract the subject from the state, and interpose between him and his allegiance to the king. As an exclusively religious association, their unequivocal tendency is, to defeat the power to govern by equal laws, and to keep the various classes of the population in a state of positive war. The natural consequence of their existence has been, and must be, to produce exclusive Catholic associations, equally hostile to good government, each arrayed against the other, and both against the law. As a public officer of the constitution, I have felt it to be my duty to enforce the law against Catholic secret associations. From that duty, when circumstances called for 995 its exercise, I have never shrunk. But, how should I reflect upon my own actions—if I were capable of visiting with the terrors of the law the one class of the community, while I shrunk from its application to the other? It is the system of Orange associations that places the Protestants of Ireland in imminent danger. The support of the Protestant was in the law.
It was only when he stepped beyond the precincts of law, and challenged the population of Ireland to hostility, that he endangered his safety and risked the security of the establishment. It is because I wish well to that establishment, that I deprecate the existence of Orange-societies. But, to suppose that I could descend from my rank and character in society to prostitute both, through rancour against any party is an imputation of which I feel myself to be undeserving. If my life and character is not a shield against such a suspicion, no defence that I can offer would be entitled to the attention of this House.
To return to the evidence, it was proved that five persons, one of them enjoying a lucrative office in the Post-office, had arranged the outrage against the lord-lieutenant. They had determined to give a proof of the unpopularity of his administration, on the first opportunity. The visit of his excellency to the theatre, furnished that opportunity. When apprised of that intention, it was determined by the rioters to drive him from the theatre, and by such a manifestation of opinion to compel him to desist from the course of rule that he had followed. It was to be remarked, that whatever private opinions the lord-lieutenant might entertain on certain questions, he had abstained from mixing them up with his public acts. It did so happen, that from the control of events without any reference to inclination or otherwise, he had not conferred a single office on a Roman Catholic from the commencement of his government. His offence was, that he had endeavoured to give effect to the mandate of the king. And yet, these were loyal, very loyal men, who assaulted the king's representative! On the trial it was proved by witnesses, and enforced by counsel, that there was not a more loyal subject to the king than Mr. Forbes, who packed the audience. Loyal no doubt he was, most loyal—so long as the king governed his subjects in the way that Mr. Forbes approved. In that acceptation of the word, 996 there were not more attached members of the community than the Orange-lodges of Ireland. And truly loyal, and most estimable in every consideration, they would prove themselves, would they but throw aside the follies of their secret associations. But it was the inevitable consequence of associations which confounded the respectable part of society with the low and the turbulent, that the first by the unnatural connexion lost their superiority and influence, while the other were emboldened in their violence. To resume his narrative, The theatre was packed; persons were sent to occupy different parts of it, whose admission was purchased, and who were inflamed with ardent spirits, according to the arrangement of Forbes, who went himself into the lattices, or upper-boxes, to keep up a communication with the rioters, who were to act under his direction. When such were the facts which had been established by evidence, was he not right in his opinion that the grand jury had acted upon a false principle in coming to the conclusion which they had done? The hon. member had called on him, on the supposition of a variety of facts which had nothing to do with the motion. He had not, however, made out his case. While he, (Mr. P.) had not only grounds for impeaching the decision of the grand jury, but also the manner in which it had been impannelled. He had reason to know, that the sheriff was related to two of the traversers, in the close affinity of first cousin. This, had he known it at the time, would have been ground of challenge to the array. He had also in evidence upon oath, that the sheriff declared that the traversers need not be afraid of the result of the trial, as he had a list of Orangemen for the jury in his pocket [hear, hear!]. Another circumstance would shew the spirit in which the grand jury was impanelled. There was a person, named Poole, who was desirous of serving on the grand jury. The sheriff promised him previously to the riot, that he should be on the jury; but, after the riot, he found that his name was not on the list, and when the sheriff was applied to on the subject, he said, "Do you suppose I would allow a man to be on the grand jury, who said he would abide by the king's letter?" He (Mr. P.) did not mean by such statement to inculpate the members of which the grand jury was composed. It was, indeed, a gross impropriety in the sheriff, if he selected ju- 997 rors under manifest prejudice; but as to the jurors themselves, they were not perhaps aware of the prejudice, or if they were they would forego it. There was another objection to the mode of impanelling the jury. When he found that a whole day had passed without finding the bills, he procured the panels of the five preceding years. He found on inspection that there were from about 70 to 100 on each panel, and that on calling the panel it was with difficulty the requisite number of the jury was made up after calling the whole list. In the present instance the number was only about 50, of which there were about 26 names that he did not find on any other panel, and the whole number attended, with the exception of two or three; they answered in regular order, and before the 26th name was called the jury was completed. He would put it to the candour of the House if he would have been justified in going back with the case to such a grand jury. He would ask the hon. member himself this question, as a man of honour, and he was sure he would answer it fairly. He would put it to the candour and honour of the House, whether he had acted in a manner which the circumstances of the case did not justify [cheers]. He had the affidavit of a person who assisted in the office of the sheriff, to the effect, that when the jury was about to be struck, according to the usual course of the office, the sheriff ordered the panel to be brought to him, and said he would prepare it himself! he who was a relation of two of the traversers, and the deponent swore, that he believed this course was taken, to enable the sheriff to deal with the panel as he pleased; though he was sworn to do impartial justice between the parties! The right hon. gentleman then adverted to the evidence of a person named Farley before the grand jury. He was a person who had overheard at the tavern in Essex-street, a conversation respecting the riot in which Forbes was principally concerned. That person deposed; that he saw a man in the tavern who stated certain things—that man was Forbes; though the deponent did not know his name at the time. He was asked by the jury if he knew the man's name, he said, "No, but that he saw the man in the traverser's box that morning, and he now knew his name to be Forbes." He was told by the jurors that it was no matter what he knew now; he should confine himself to what he knew 998 at the time. This person went back two or three times to give his evidence, and it was always received as evidence against a person unknown. This evidence had been confirmed by that of a man named Troy, and it would be seen by his examination, that the jury were determined the question should be considered as exclusively Irish [a laugh]. The jury wished to throw some imputation on Farley, who was a Protestant, as being a Roman Catholic, and this they attempted to do through the evidence of Troy. They wished to learn from the oath of Troy, who was a Catholic, whether Farley was a Catholic also, that he might be disregarded on his oath; when Troy was so interrogated, he said he believed not. A juror said, tell us what you know, not what you believe [a laugh]. Troy answered, "I believe you to be a Protestant, and in the same way I believed Farley to be one;" but on that ground the jury would not believe that Farley was not a Catholic. He next alluded to the evidence of a person named Ryan, who was asked whether he was counselled or instructed to appear there? He declared he was not; he was asked what motives he had in coming forward to give his evidence? He was also asked, whether he could be mistaken as to the person of the man who threw the rattle? He said, it was impossible. He was asked what description of person he was? He said he was a sallow-looking young man, whom he should know again, though he never saw him before. He was asked, were there not many men alike. He was asked, did he not say that he might be mistaken in the, person? He said no. The juror replied you did, for I have it down in my notes. He believed he had succeeded in showing the legality of the power which he had exercised, if, however, it was allowed that the power was legal, but the exercise of it unconstitutional, he professed he could not understand the distinction. If it was unconstitutional to exercise a prerogative, it ought to be taken away, but it might be said, the power was both legal and constitutional, yet it had not been execised with a sound discretion, and for such exercise the party was answerable. The cases were very different. If the power was illegal, the fact of having exercised it would have been a prima facie case against him, and the very statement would have put him on his defence. But, if the power was legal, and to be ex- 999 ercised on a sound discretion, then it lay upon his accuser to show that he had acted culpably in its application. And, what evidence was there of this? There was no evidence but what came from his own lips. His own explanation furnished the evidence: and on that evidence he was sure, that, in the opinion of the House, he should stand acquitted. The mode pursued was not a fair way of dealing with a public functionary. He should not be condemned for the exercise of a discretionary power, unless it was shewn that he made use of it as an instrument of oppression and injustice. But, where was there any evidence to spew that he had turned a prerogative of the Crown to party quarrels, or private resentment? He would allow that others might have acted more wisely in the same situation than himself; but he denied that any could have acted more honestly. If he had acted on a mistaken motive, let it be shown; but no man could prove that he had acted unconstitutionally. He disdained the imputation of an improper motive. He had spent a long life connected with politics, and every man who knew him was aware that he never had been actuated by the feelings and sentiments of party. Much of the obloquy which he had lately endured, and endured, too, from those who were never before united on any one point, was occasioned, he believed, because he would not lend himself to party views. He, however, had never sought to benefit himself by treading in such crooked and devious paths. He was opposed to zealots of every party. He was inimical to the little sects and the little policy which did so much mischief in his native country, and he should feel happy if they were done away. The present question was one of great importance. It involved the proposition, whether in future the laws were to be administered in Ireland on the principle of impartial justice—whether the king was to be permitted to exercise, for the benefit of the people of that country, the gracious disposition which he had shown towards them; or whether they would tolerate a party which was alike calculated to put down the king and the law? He had now put the House in possession of his case; and he would leave it to their honour and justice. As it nearly concerned him personally, his situation was one of great delicacy, he should withdraw during the discussion, and leave the House 1000 to the free and. unconstrained exercise of its judgment.—The right hon. gentleman then withdrew amidst loud cheering.
§ Mr. W. Courtenay
said, he thought it quite impossible, that the motion could have any other tendency than that of continuing and increasing the unfortunate spirit of party at present the bane and curse of Ireland. Ireland was degraded and rendered miserable, by a spirit of party, which it ought to be the object of every man to allay. What, then, would be the effect of this motion? In order to consider that point, they must consider the situation in which the parties were placed. It was only by attentively looking at that state of parties, that he had come to the determination to propose to the House the course which he thought it would be most advisable to adopt. His opinions and feelings certainly led him to put a decided negative on the motion; but other considerations would induce him to substitute an intermediate course. He took that course because he trusted the House would not be led to give what might be considered a triumph, to any of the parties into which Ireland was unhappily divided. An upright and impartial administration of justice in Ireland appeared to be the sole object of his learned friend. His learned friend had proved, that the power which he had exercised was legal and constitutional; and next, that it was necessary for the safety of the country. He would state it, as his deliberate opinion, that the attorney-general for Ireland had used his legal prerogative fairly and honestly; and he thought that his learned friend would have been guilty of a gross dereliction of duty, if, in consequence of the dread of popular clamour, he had shrunk from the discharge of his official functions. Could any one say, after hearing the evidence, that he had acted on any other ground but that of the sound discretion upon which a public officer was bound to proceed? The motion he intended to make would prevent the different parties from assuming a triumph on this occasion. He took that course, because he felt most strongly the necessity of allaying party spirit in Ireland. He concluded by moving. "That the other orders of the day be now read."
said, that three parts of the learned gentleman's vindication of his, conduct consisted or, a defence of the legality of his proceeding but nobody denied its legality. He had also tried to 1001 establish a precedent by a citation of nineteen cases, in which the conduct of grand juries were impugned, and rules granted by the judges for ulterior proceedings; but there was no analogy between what was done by judges, and what was done ex officio by an attorney-general. In the one case the parties could obtain a hearing against the rule; but there was no such bearing before an ex officio information was issued. The learned gentleman had alleged great cases of delinquency; first against the sheriff, who returned the jury panel; and secondly, against the jury. Attacks against persons not present to defend themselves ought to be received with considerable circumspection. Now, the practice in Dublin was, for each of the sheriffs to return the panel at alternate sessions, and at the time of the late prosecutions it fell to the turn of Mr. Sheriff Thorpe to return the panel; but he was prevented from doing so, by an order from the solicitor for the Crown, who directed that the panel should be returned and signed by them conjointly; and they declared that they returned the same panel which was usually prepared for similar sessions. The learned gentleman had talked of the affidavit of a man named Connell, who said he had heard the sheriff declare that he had an Orange panel in his pocket. This man said, that this conversation was held by the sheriff in a room in which there were eight other persons. In contradiction of this statement, he held in his hand the affidavit of the sheriff and of seven of the persons in whose presence it was alleged to have been used, positively denying that any such conversation occurred. It was said, that in the case of a witness named Moran, the grand jury had only asked the man two questions, and then turned him out of the room. Now, he had authority to say, that such was the evidence given by that man, that the jury had actually determined to indict him for perjury, and were only dissuaded from doing so by the advice of counsel, who represented that the proof must be derived from disclosures out of the grand jury room, which would be a violation of their oath of secrecy. The learned gentleman had said, that the grand jury had only examined 13 witnesses. This was incorrect, for they had had 27 before them, only 12 of whom had afterwards been called before the petty jury. Indeed, the principal persons to prove the conspiracy cu the trial were two who had never been 1002 before the grand jury. They were of the name of Atkinson, and he verily believed had been the instigators of the conspirators, for the ultimate purpose of betraying them and profiting by the act. One of them, John Atkinson, had been employed by government, in 1814, in the storekeeper's department of the Customs. Of the stores under his care about 250l. or 300l. worth of coffee was subtracted; and the suspicion fell upon him. He was dismissed by the deputy store-keeper, who was prevented from bringing the case before the board by Atkinson's father, who was a clerk of the police, and who entered into a bond to indemnify the losers; and the merchant, being remunerated for the coffee purloined, made no further complaint. This Atkinson's brother George took possession of his place, and his salary went in liquidation of the father's bond; the dismissed person being occasionally employed as a supernumerary in the same department. He was one of the most conspicuous Orangemen at the dressing of the statue on the 4th of November. He was remarkable for his inflammatory speeches, and efforts to propagate doctrines as party principles, the operation of which had inflicted so much evil on Ireland. How was it that he obtained the appointment of clerk of deliveries in the Customs, when this conduct was so recent and notorious? There were always about every government, a set of low, grovelling wretches, ready to make their court by any act of subserviency [hear, hear]; and it must be under such protection, that men like this were preserved. He had no doubt that the real conspirators were the family of Atkinson; and that they had instigated others who were heedless and thoughtless, perhaps vicious, to an act of criminality, which he abhorred as much as any man, and which he wished had met the condign punishment of the law—a punishment which must have awaited them, had the attorney-general sent up a fresh bill for the riot, with the words cum multis aliis, which had been so unaccountably omitted in the bill found by the grand jury. He would ask the attorney and solicitor-general for England, whether they would have pursued the same course in this country, which the law-officers had pursued in Ireland? Their answer would have a material influence upon the decision of the House.
§ Lord Milton
said, he came down to the House prepared to support the motion. 1003 He was greatly surprised, however, to find that that hon. mover had abandoned the strong hold which he possessed against the attorney-general for Ireland. By the form of his motion, which implied a general disapprobation of the right hon. gentleman's conduct respecting the persons who had been arraigned, he opened the door to a difference of interpretation as to the grounds on which any hon. gentleman might support the motion. In his (lord M's) opinion, it would be uncandid towards the right hon. gentleman, and unfair towards the government of Ireland, to place so general a proposition on the journals. For, certainly, if' there ever was a case which would almost justify a violation of the law, it was the case which the right hon. gentleman had stated to the House. Unquestionably, it was desirable to bring to condign punishment persons who had ventured to trifle with the most sacred duties. If the sheriff of Dublin, or of any other country had dared so to comport himself in his high office, it was the bounden duty of parliament to interpose, and to teach him his duty. As to the amendment, he confessed his extreme surprise at it. He did not think the right hon. gentleman would be much gratified, if the House were merely to pass to the order of the day on such a motion. On the contrary, he thought the right hon. gentleman would prefer the candour of those who would say with him (lord M.) that they did not think he had been governed, in the particular case, by a sound discretion. It certainly was not wise, in the present state of Ireland, for the highest law officer of the Crown to try, for the first time, an experiment of that nature. As to the precedents which had been adduced by the right hon. gentleman, they were utterly inapplicable; for they were cases, not of informations filed by the attorney-general, but of informations moved for by the parties, and granted by the courts. His right hon. friend had, in the course of his speech, detailed matter which called for the most serious consideration. He had stated, that there were to be found in Ireland many men of most honourable character, but who were so shackled by the oaths and obligations of Orange societies, that they dared not act or decide according to the law of the land. Now, he would ask, what could be expected from a government so divided, as the Irish government was known to be; where the lord-lieutenant was of one opinion, and his 1004 secretary decidedly opposed to him; and where a lord O'Neil, the professed head of the Orange faction, held a high official situation [hear, hear!]? Why was it that a right hon. baronet (sir G. Hill), who was known to be a supporter of Orangemen and Orange principles, retained a high official appointment in Ireland? The present appointments in Ireland were by some strange misnomer, called a government; but they were in point of fact no government at all. That which was called a government in Ireland, was a power capable of creating much mischief, but incapable of doing any good. They had been told that Orange and other illegal associations existed in Ireland. Why, he asked, were not those associations put down; or, if they must be allowed to exist, why were any persons holding appointments under government allowed to belong to them? Why were the patrons and protectors of Orange lodges allowed to participate in the places and profits of a government, to whose acts they were decidedly hostile? So long as this was allowed, it would have the effect of fostering party; of keeping up dissention and disunion; and of increasing that irritation which had hitherto so long and so unhappily existed. While the government of Ireland truckled to that Orange faction—while it was allowed to stalk abroad even in the castle of Dublin—so long would that unhappy disunion continue to exist. Under such a system there could be no security against a recurrence of the various acts of misconduct which had disgraced Ireland. Though he did not approve of the course adopted by his right hon. friend, yet he could not give his assent to an amendment which would leave that conduct in doubt; but before the House separated, he hoped they would express a decided opinion upon the real merits of the government of Ireland as at present constituted.
§ Mr. Goulburn
said, he entirely concurred in all that had been done by his right hon. friend, and was ready to share the responsibility which attached to the measures he had adopted. The noble lord who had just set down had ascribed all the evils which Ireland endured to the difference of opinion which existed amongst the members of the government of that country: he had argued, that because the lord-lieutenant entertained a different opinion from that which he (Mr. G.) professed upon one particular point, it was impossible that they could both 1005 concur in the same system of government in Ireland. He would take upon himself to deny that fact. During the time that be had been in Ireland, he had entirely concurred with the lord-lieutenant in every measure of the government. It was most extraordinary that the noble lord, who had always professed himself an enemy to exclusions on account of political or religious opinions, should wish to exclude from office in Ireland every body who was opposed to him in the view which he took of a particular subject: for that, in fact, was the effect of the noble lord's argument. The noble lord seemed to be at a loss to know what course to pursue upon the present occasion. He said, he would not vote for either of the motions which had been submitted to the house; and he objected to the first on account of the vagueness of the language in which it was composed. Now, that very vagueness and uncertainty of which the noble lord complained was the best possible reason for rejecting the motion. Upon such a subject there should be nothing like doubt. His right hon. friend had come to the house prepared to rebut any specific charges which might be brought against him. He agreed with the noble lord, that the amendment might be liable to some objection. It would have been more gratifying to the feelings of himself and his right hon. friend, to have met the motion, which was of a personal nature with respect to them, by a direct negative; but the members of government were frequently placed in situations in which it was necessary for them to sacrifice their own wishes, in order to attain a greater object. It was imagined that if the original motion were pressed to a division, the result would be, to afford a triumph to one of two parties, and thus to exasperate those feelings of animosity which had, already existed too long in Ireland, and which it was the object of the government there to repress. The attention of the House had been directed to many points which were of little importance. The only question which the House was called upon to decide was, whether his right hon. friend had sufficient grounds for filing an ex officio information. He was not called upon to prove that the characters of the persons from whom he received his information were unimpeachable; but he would maintain that his right hon. friend had shown that the information which had been laid before him was sufficient to 1006 authorize the proceeding to which he had resorted.
§ Mr. Brougham
said, that in rising to speak upon this important question, he felt oppressed by many difficulties which weighed upon both sides of the case. On the one hand, he felt sincerely anxious to avoid doing any thing which would add to that mass of party animosity by which Ireland was already but too much distracted; while on the other, he felt that if he gave a direct negative to the motion, he should desert the duty he owed to that constitution which he conscientiously believed to have been infringed upon, however innocently, by his right hon. friend the attorney-general for Ireland. It was with double pain that he had felt himself bound to make this declaration. He had listened to the able and ingenious arguments of his right hon. friend; with every inclination to find him right; and above all, he had listened to him with strong political prejudices (for he was not ashamed to avow that he entertained them) against the quarter from which the accusation was supposed to come; and after all, it was with pain that he came to the conclusion, that the constitutional principle was distinctly against the attorney-general for Ireland. A dry legal question was, God wot, a dull subject for an argument in that House at any hour; but it would be particularly irksome at that late period of the night to enter upon a minute examination of the cases which had been quoted as precedents by his learned friend, eighteen in number, which were to be found in the books, or he should rather say which were not to be found in the books, but in manuscript, some of which, more or less accurate, were preserved in the Crown-office in this country; and others, of a more apocryphal character, were deposited in the Crown-office in Dublin, and were documents proceeding from a court in a country where sheriffs and grand juries acted in the manner which the house had heard stated that night, and where the rules of evidence were such as had been described by his learned friend, with a mixture of lamentation and laughter. He would, however, for the sake of argument, admit that all the cases were established precedents, and yet he would contend that not one of them decided the question at issue. His right hon. friend seemed to be perfectly aware of that, and commenced his speech by a most ingenious attempt to make all those cases available for him. He had begun 1007 with a preliminary argument, wich mathematicians called a lemma. He said, that he could find no precedent of an attorney-general filing an ex officio information after the grand jury had thrown out a bill against a party; but that in the 18 cases which he mentioned, the court of King's-bench had granted rules for proceeding ex officio. His learned friend went on to say, that before the statute of William, which abolished the star chamber, the master of the Crown-office and the attorney general had each the power of proceeding by ex officio information, but that that statute had divested the first-named officer of that power, and given it to the court of King's-bench, leaving the attorney-general still in possession of his prerogative. The eighteen instances in which the court of King's-bench had granted criminal informations against individuals after the bills which had been preferred against them before grand juries had been thrown out, had occurred since the enactment of the statute of William, when, as his learned friend had said, the court stood in the shoes of the master of the Crown-office. Now, it would be necessary to consider, whether the manner in which the court proceeded in those cases was analogous to that in which his learned friend had proceeded in the recent instances. He denied that such was the case. The court never granted a criminal information in any of the eighteen cases, without having before it an affidavit of misconduct on the part of the grant jury; and moreover, the statute required that the party applying for the information should enter into recognizances, it order that the party against whom an rule was sought might be secured his costs. That was the first answer that he would give to his learned friend; but then was another—only one of the cases which his learned friend had quoted could ever nominally be compared to a criminal proceeding; he meant the case of the repairing of a bridge. It was well known that the grand jury of a county alone had the power to direct an assessment on the in habitants for defraying the expense o repairing a bridge: if they refused, the court of King's-bench was compelled ex rei necessitate, to grant a criminal in formation, in order to prevent the roar being blocked up. His learned fries had said—"How can I give you in stances nearer than those I adduce? They are," says he, "in as great plenty as 1008 black berries, and are yielded term after term; but from their very nature, no record of them remains." Why, one-half, nay, nine-tenths of the constitution, as well as of the law, of this land, rested upon matter not of record. Nine-tenths of that which regarded what a public officer might or might not do, was to be found in no record, but only in the traditionary knowledge of men learned and authoritative in these matters—the text writers. No man could be brought before them old enough to show that he recollected any one case, in which an attorney-general had filed an ex officio information upon an indictment previously ignored by a grand jury. Was that no fact. Was that no case of authority? Why would be talk of antient books and records mouldering on the shelves of the Crown-office, when a fact so palpable as this was before his eyes, and not susceptible of contradiction?—Then, as to the foundation on which his learned friend had chosen to rest his defence of ex-officio informations, he (Mr. B.) entirely concurred with him in the manner in which he had cleared this subject of all unnecessary incuinbrances. But as to their legality, the authority of sir E. Coke was not necessary to prove that. He (Mr. B.) must of course admit it; but he denied the propriety of using them, and most especially in such a case as this. The facts of the case put the question of its legality entirely out of court. What was the observation of Mr. Justice Blackstone on this point? One part of it, his learned friend had quoted; but the other part of the sentence he had omitted. The right hon. gentleman had repeated, "that this power was originally reserved in the great estimate of the English constitution;" but he did not add what was joined to this in the text, namely, "for offences so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the Crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal." That meant, that, according to Blackstone, where time pressed, and where there was imminent danger to the state, government were not to wait for the meeting of the grand jury but might file an ex officio information against the parties. The great authority in question put the matter in no other light. Men would, however, view the same thing in very different lights; and, 1009 it might be, through very different mediums. It had happened that some men had viewed as a matter of merriment the throwing of a glass bottle at the head of his majesty's representative, and had regarded with no serious or anxious feeling the levelling of a large bit of wood at the box in which that distinguished personage was sitting. He had been told, that the transaction had furnished matter of amusement to almost the highest legal authority in Ireland. He had been told, that it had elicited some of the choicest specimens of that wit and humour for which that learned functionary was so distinguished. He had been assured, that in a certain circle, where festivity and wit and legal learning were accustomed to walk hand in hand together, the eminent person in question had observed, in alluding to the riot at the Dublin theatre, "that he never before heard of a rattle which had made such a noise; that he had heard, indeed, of a full quart bottle exciting much eloquence and producing some merriment; but he never knew an empty one which had caused so much talk or attracted so much attention." He (Mr. B.) had no wish to interfere with, or check the full tide of so much innocent mirth. Nay, he had heard of another joke, said to have proceeded from the same quarter; namely, that when the other indictment was traversed, about the putting his majesty's liege subjects in fear of their lives, they produced the most antient gentlewoman they could find in all Ireland to depose that she was never less alarmed than on the occasion referred to. It might, however, be natural that some little degree of mirth should have been thrown upon that which was in truth very serious; particularly in the appearances it manifested of had feeling, and still more so in the consequences to which it might lead, were it to give rise to a successful attempt to overthrow a government, which, notwithstanding all that could be urged as to its defects, was, compared with that which some persons were so anxious to put in its place, a celestial arrangement as compared with an infernal one. Such a wish he imputed not to the supporters of this motion; but for this motion he could not vote. If he could be moved by the eloquent argument of the hon. member, his fear would still be, that by supporting the proposition, he should be playing the game of that faction which had been, for so many 1010 years, the curse of that fair country. This would be, to postpone to an indefinite period that which he so earnestly prayed for on behalf of Ireland, as well as of England—a more equal, liberal, and beneficent rule, to succeed to the misgovernment of past times. If an ex officio information was still necessary, to be filed, there surely lacked not opportunity of putting such a measure in execution. Many hon. gentlemen who would vote that night, might perhaps be influenced by the very eloquent appeal which had closed the speech of the attorney-general for Ireland; but when they saw a sheriff acting in the way described, and a grand, jury receiving instructions from him, at when they looked to the turmoil and indignation which must, God knew, in any country, but more decidedly in a country like Ireland, be the consequence of such proceedings—could any one feel, whatever might be the results of the outrage at the Dublin theatre, or of following up an indictment once tried before a grand jury by an ex officio information—whatever doubts might arise in regard to these matters, could any one hesitate what judgment to form on those proceedings? The right hon. secretary for Ireland had told the House, that the government to which he was attached was not a divided government; and that the greatest possible harmony prevailed between all its members. From all that the right hon. gentleman had said, the House might really imagine that those members were always in perfect union of opinion, and sitting side by side in amicable conference. Instead of this, however, he (Mr. B.) protested that he saw in the constitution of the government, something which much more resembled the chequered appearance of the keys of a harpsichord, alternately black and white, down the whole line; until he came indeed to the spot where the two learned law officers of the Crown in England were fixed; and there there were two blacks together, and no white; for there alone it was, that the differences of the cabinet were not represented. All the other members of the government were kept exactly opposed to each other, and the balance was nicely trimmed so as to accommodate here, a vote in favour; there, a vote against the Catholics: it was only in the instance of his two learned friends, that the alternating principle upon which this equilibrium was sustained was dropped; those keys 1011 were both black—both of them voted uniformly against the Catholics. "But, then," said the right hon. gentleman, in the words of the old apologue, "see how nicely, how harmoniously myself and the lord-lieutenant of Ireland swim clown the stream: we have never had one public measure to execute on which we have differed." This was just what he (Mr. B.) complained of. It was precisely because they had had no measures to effect for the benefit of Ireland, that the right hon. gentleman did not differ with the lord-lieutenant about them.—The hon. and learned gentleman went onto remark upon the too great care which was shown, as vacancies occurred in the cabinet, of so filling, them up as to maintain the precise equilibrium of opinion of which he had spoken, without regarding the claims or characters of the individuals who were placed in them; and in the little care which was taken by the government to impress upon the mind of the sovereign the importance of those measures of universal indulgence, on which the honour and security of his Crown so mainly depended. He then described the discordant materials of which the government in Ireland was composed; and the manner in which the lord-lieutenant was thwarted by a lord-chancellor, who was his co-ordinate, and by a secretary who was his subordinate. Wishing to see all dissentions at an end, he would not vote for the resolution. Disapproving, too, of the conduct of the attorney-general for Ireland in this matter, he could not bring himself to vote an entire acquittal; but, feeling his first duty to England and to Ireland to be, to prevent the triumph of that bad set of men and principles to which so much of the miseries of Ireland were to be traced, he should vote against the proposition, in the hope that the House would no longer lend itself to a system so utterly disgraceful. Consistently with the rules of the House, he could not move an amendment on the order of the day. Neither could he with propriety, after the statement of his learned friend, move an adjournment. But, if he voted for passing to the other orders of the day, it would be with the fixed determination of following up that vote by submitting a motion for inquiry into the conduct of the sheriff of Dublin.
Mr. Secretary Canning
agreed entirely with the hon. and learned gentleman in the sentiments expressed in the conclud- 1012 ing part of his speech, with regard to the propriety of putting an end, if possible, to the dissentions in Ireland. He also was most anxious that neither party should seem to have a triumph over the other, in the decision of the present question; and the House would, he trusted, see that the best mode of arriving at that end, would be by making this the final proceeding. The hon. and learned gentleman would have them break up the present government of Ireland, and institute another, in order to obtain perfect unanimity upon the Catholic question; but, from what part of the House, or from what class of men was he to chuse his unanimous cabinet? The time which the hon. and learned gentleman chose for saying that there ought not to be such a government, was rather ill-chosen, when perhaps, for the first time, an attempt was making to establish in Ireland a system of impartial justice. The best system for Ireland was, he was convinced, that which the new government had introduced; and it was from a wish to see that system continued, that he was anxious to prevent any blow from being struck at so efficient a member of it. Consistently with this view, he was willing to adopt the mitigated mode of getting rid of the motion suggested by the amendment. It were much to be wished, he would allow, that the great question alluded to had been settled at the time of the union; but that was found to be impracticable, from the difference of opinion that prevailed. Not many years alter time union, Mr. Pitt having retired from office, a new government came into power, and there again the same difference of opinion was manifested. Another government succeeded, and a like division took place. And he believed that even if the gentlemen opposite were to come into power to-morrow, it would be found difficult, notwithstanding their concurrence upon all other topics to obtain perfect unanimity upon this one question. If any change could be made, that would insure its decision, he would willingly resign his office, and consider any change attended by such a result as an alteration for the better. At no time had so great a disposition been manifested to give to Ireland the benefits of a free and equal and liberal government as at present; and he therefore thought that the invectives of the hon. and learned gentleman were singularly ill-timed, coming as they did at the very moment when such 1013 a system was in the course of administration. Whatever might be said of lord Wellesley's government, that its great object was, to confer happiness on Ireland could not be matter of doubt; and it was because he was anxious for the continuance of that government, and should be sorry that by any resolution of the House a blow should be struck at so essential a member of it as the right hon. and learned gentleman, that he should concur in an amendment which would put an end to the proposition of the hon. member for Armagh.
§ Mr. Brougham
expressed his intention of redeeming the pledge he had given, if no other member took up the subject.
said, that the learned gentleman found fault with the way in which the attorney-general for Ireland had exercised the power of filing an ex-officio information, although he admitted the power to file such information. As to the legality of the proceeding, the point was so plain, that even the learned gentleman could not have a doubt upon it. He said, that the attorney-general had not the power to file an information, after a bill of indictment had been ignored by the grand jury. He (the attorney-general) was of a different opinion. He considered the proceeding of his right hon. friend as perfectly legal. The learned gentleman had said, that the cases cited were not applicable to the point in issue. He would not fatigue the House by going into those cases; but he would insist on it, that they all fully established this principle, that a criminal information might be filed after a bill of indictment had been ignored.
§ Mr. Scarlett
agreed, that the proceeding was not illegal. But the legality of it was one thing, and the constitutionality another. It by no means followed, that what was barely legal should be always adopted. The attorney-general on filing an information, was bound to stand by it; and, though the result might be unfavourable to his cause, it would still be better to abide by the decision of the jury. He was satisfied that the conduct of the attorney-general for Ireland proceeded from the best of motives; but he certainly had forgot what was due to the character of a grand jury.
§ After a short reply, the motion was, with the leave of the House, withdrawn; and sir F. Burdett gave notice, that he would, on the 22nd, bring before the House the conduct of the sheriff of Dublin.