§ MR. NAPIER
said, he would now beg to call the attention of the House to the subject of which he had given notice—a 317 subject affecting the freedom of election, the security and protection of British soldiers while in the discharge of a duty which they could neither violate nor abandon, and the impartial administration of justice in Ireland. When he stated that on the 22nd of July last, at a contested election for the county of Clare, a certain number of voters had to be escorted by a military force to the polling place, for the protection of these voters; that while so engaged the soldiers were attacked by an infuriated mob; that one soldier was disabled for life; that others were wounded; that a scene of riot, outrage, and confusion occurred; that several of the rioters were killed, and that not one individual had, as yet, been made amenable to justice; he thought that it was a fit case for the House to institute a searching inquiry into an affray which had led to such calamitous results. And as he himself had the honour at the time to hold the office of Attorney General for Ireland, and was, no doubt, bound to give every attention to all such occurrences, and also, inasmuch as his conduct in reference to this transaction, had, in another place, been made the subject of—he would not say unfair comment—but of some misapprehension as to the actual part he took as Attorney General, he thought it desirable to come at once before the House with a narrative of the whole of his connexion with the proceedings up to the time of his banding over to his successor the commission entrusted to him as Her Majesty's Attorney General in Ireland. He would take leave to put the House in possession of all the facts of the case down to the present time, and would leave the matter then to be dealt with as the House might deem fitting. He had before him documents to vouch for the truth of the statements he was about to make; and the House would then have to consider whether or not it was due to the freedom of election, to the safety of our representative system, and to the interests of public justice, that some further steps should be taken in reference to this question. An inquest was held on the bodies of the seven men who were killed in the course of that affray. He should observe that it was not the course in Ireland for the law officers of the Crown to attend at such inquests, nor for any person on their behalf; indeed, he confessed that he always regarded them, as they were in effect, as an obstruction to public justice. But in the 318 present case he instructed the Crown Solicitor, that he should attend the inquest, not for the purpose of interfering with the proceedings, on the part of the Crown, but to hear the witnesses examined, and to be, therefore, in a condition to report from day to day what had really occurred, so that he (Mr. Napier) might have the means of informing himself of every fact of the case. Sir Matthew Barrington, the Crown Solicitor, did accordingly attend from the first day to the last, and communicated every day's proceedings to the Government. The result of the coroner's inquest was a most extraordinary verdict, which had since become a matter of public notoriety and observation. The finding of the jury was, that the magistrate who accompanied the soldiers, and the soldiers themselves, numbering eight men, were guilty of the wilful murder of all the persons whose lives had been lost. When the proceedings of the inquest ended, and the evidence was duly recorded by the coroner, and returned, it was accompanied by the narrative of Sir Matthew Barrington, which, of course, was of the greatest assistance to him (Mr. Napier) in enabling him to arrive at the truth. The first time the case came before him, was upon the arrest of the soldiers and the magistrate, who were thereupon committed to gaol. An application was subsequently made to the Court of Queen's Bench to admit the parties to bail. Now, he wished to deal frankly with the House in narrating the different steps which he took, and in giving his reasons for every part of his conduct. When the depositions were laid before him, the case upon such depositions appeared to be this: There had been a number of voters from the Limerick side of the county of Clare who were desirous of coming to the poll upon the 22nd of July, to vote for Colonel Vandeleur. Some of the magistrates of the county had received information on the previous day that the approach of such voters would be obstructed by an organised force of the country people. The Sheriff, who was at the time the principal officer of the county acting for the conservation of the peace, and whose duty it was to secure to the voters free access to the poll, was also informed of the necessity of providing against any such obstruction. The House would no doubt consider that nothing was of greater importance than where individuals were permitted to exercise the elective franchise they should discharge that right freely, and should not 319 be exposed to any undue influence or intimidation. Accordingly on this occasion the magistrates deemed it to be their duty to apply to the commanding officer of the military of the district to furnish such a force as would be necessary to protect these voters from any violence or interference of the mob, and that they should see them conducted to the polling place, in order that the voters should record their votes as they desired. In addition to the body of voters of whom he had just spoken, there had been another set of voters lodged in a place of safety previous to their attending to give their votes. It was perhaps necessary for him here to inform English Members that in the present unhappy state of Ireland, in the time of au election the necessity often arose to place voters in places of security in order that they might be able to exercise their own free will. Accordingly, as he had said, a body of voters were taken on the previous night to a certain house for their own individual safety. This fact having become known on the morning of the 22nd of July, a mob of about thirty or forty persons assembled before the house in question. They were all armed with sticks, and after a most lawless and riotous attack upon the place, they succeeded in bringing off these voters by main force, and in lodging them in what was called a Temperance Hall—a name sometimes used by a Ribbon Lodge. The voters were then locked up at the time when a body of military furnished by the commanding officer took charge of the first set of voters to which he had alluded. The troops, consisting of Captain Eagar, Lieutenant Hutton, two sergeants, and 40 rank and file of the 31st Regiment, left Limerick at 4 o'clock in the morning. When about two miles on the road they were met by a gentleman, who told Mr. Delmege, the magistrate accompanying the escort, that there was another set of voters in Limerick who were locked up in a house and kept under duress; and at the request of the magistrate the captain consented to return with eighteen men for the purpose of protecting this other body of voters. On arriving at Limerick, Captain Eager succeeded in placing the other body of voters under escort of the troops, and having heard them express their willingness to go with them to the poll, they took charge of those voters amid the hootings and threatenings of an excited mob. For the purpose of showing that they were prepared to carry out their com- 320 mission, the order was given to the soldiers to load their guns. This order having been obeyed, the military party guarding the voters they had in charge, proceeded on their route, and rejoined the rest of the party that was in waiting, The whole body then proceeded on their way, eighteen of the soldiers with loaded guns: the rest with guns and ammunition. They at length arrived at the town of Six-mile Bridge. The officer in command, Captain Eagar, it appeared, was a perfect stranger, and did not know the town. After crossing the bridge that led into the town, they entered upon the main street. They came to a part of it from which one or two small streets diverged. The main street was quite full of persons at this time, and crowds were still flocking towards the place from other directions. Finding their position becoming every moment more hazardous, the officer asked a policeman the best and wisest direction for him to take, under the circumstances. According to the information which he had then received, he, with the soldiers under his command, did most naturally, but most unfortunately, take the direction of one of the side streets, in which there were comparatively few persons assembled, and soon afterwards they found themselves in a narrow lane which led up to the court-house. Just as they had approached the lane he saw the persons from the main street following in great bodies the procession. Some of them hastened round in another direction, and met the soldiers in front. Captain Eagar thereupon disposed his men in this way—he placed ten in front, ten along each side to protect the voters, and ten in the rear. When he entered the lane he saw a great number of the country people spreading themselves out on each side, and a Roman Catholic clergyman of the name of Bourke was coming down from the direction of the lane. This priest having passed, Captain Eagar came down to the end of the procession, where the lieutenant had the command of the rear. At this moment the crowd had increased very much. They hooted and groaned and threw stones at the military. Their demeanour became extremely violent, and the Roman Catholic clergyman got inside of the line of soldiers. There were loud cries uttered both by the mob and this priest to drag the voters from off the cars, which were conveying them. The stones became every instant more numerous, and rattled off the bayonets of the soldiers. Lieuten- 321 ant Hutton at length ordered his men to charge the mob with their bayonets. The soldiers did, and the mob retreated, but every time the soldiers returned to their places, the mob pressed upon them with their attacks. When they got a little way up the lane, which was a narrow place, and which was lined on either side by a wall four or five feet high, and behind which wall was a field, about which, as well as the wall, there was a large collection of stones, the attention of the officer in command was suddenly called to the position of one of the cars, which had become separated some paces from where he was. There was a man in the front of the mob with a knife in his hand, engaged cutting the traces and the bridle, while others were endeavouring to pull the voters off the car. He immediately called the assistance of two men to the protection of those on the car, leaving a corporal and eight men in front. While Captain Eagar and his men were thus engaged protecting the car that was thus attacked, another Roman Catholic priest, the Rev. Mr. Clune, addressed a mob in front of the Court-house, and said, "What, are you all standing here idle, while the Limerick voters are coming up? Will you let them come?" Another person immediately responded, "Come boys, come;" and about 200 persons suddenly rushed round the lane, and the men in the front were deprived at the moment of the protection of the commanding officer. In the rush of the mob the corporal was knocked down senseless upon the ground; and he (Mr. Napier) might here observe that from the wounds which he had then received, the medical officer had reported that he was permanently disabled. It was stated that he never could recover. This unfortunate man was knocked down, and while lying on the ground one of the soldiers near him rushed forward to save him from the violence of three men who were over him. This corporal received no less than eleven wounds. Two of the three men that had been beating the corporal rushed towards the soldier who came to his rescue, and, seizing his gun and bayonet, a fearful struggle took place—the assailants endeavouring to wrest the gun out of the soldier's hands. It was at this moment the first shot was fired. That not having produced the effect expected from it, a marked pause took place, which was followed by five or six more shots in quick succession. Seven of the rioters were killed by those shots. 322 Now that was the history of the transaction as it appeared in the depositions. Well, after the arrest and committal to prison of the magistrate and soldiers upon the coroner's warrant, he, as Attorney General, had to consider the propriety of consenting to admit them to bail. The magistrate was charged, together with the eight soldiers that formed the firing party, with the same offence, because it was said that he was found with a pistol in his hand, and heard to cry out "Fire, fire! front and rear." On one side it was stated that the soldiers fired without orders; and, on the other, that they received the order to fire. He felt it to be his duty, while holding the office of criminal prosecutor, to see that constitutional protection should be afforded to the really innocent, while the really guilty should be brought to justice—that in the consideration of this subject there should be no respect paid to persons. The law knew no distinction. Accordingly, he had to use his best judgment in deciding upon the facts as they appeared in the depositions; and, after reading the depositions through, he came to the conclusion that there was no legal evidence to establish guilt against the soldiers; and with regard to the magistrate, there was only one witness that gave evidence as to his using the language to which he had referred. After giving the case the most mature consideration, he (Mr. Napier) gave his consent to the application for the parties charged to be admitted to bail upon such terms as the Court should think proper to impose. The case then came before Mr. Justice Crampton, who most properly, in a case of such importance, would not allow the consent of the law officers of the Crown to influence his decision, but postponed his opinion on the matter until he had himself read over all the depositions which were taken in the case. That learned Judge having attentively considered the case, made an order next day that the parties should be admitted to bail upon becoming bound by sureties for 10l. each, and by themselves for 20l., thus showing that that learned Judge was of opinion that there was no real ground for the charge of murder brought against them. While these proceedings were going on, the public press took it up largely on both sides, and an Irish newspaper, pending the inquest, charged the men of the 31st Regiment with deliberate murder, and threw out imputations against the character of the 31st Regiment, as consisting of disgraceful cow- 323 ards. The late Duke of Wellington, seeing those charges in the newspaper referred to, and being always alive to everything affecting the glory and honour of the Army, sent the newspaper in question to him (Mr. Napier), accompanied by a minute in which be said that if he (Mr. Napier) approved of it, he thought it a fit subject to be noticed on the part of the Crown, for the protection of those bearing Her Majesty's arms. Accordingly he (Mr. Napier) directed the fullest information to be laid before him in respect to this charge, and he selected, for the purpose of procuring him such information, two persons whom he thought the most competent to know all the material facts connected with it—namely, Captain Eagar, who was in command of the soldiers, and Lieutenant Hutton, who had the command of the rear. These officers undertook the task imposed on them, and with the permission of the House he would read what they stated on the subject. Captain Eagar, upon oath, proceeded to describe the scene in the lane as follows:—After speaking to the policeman, and having taken the direction he pointed out, a priest came up with a whip in his hand, which he flourished, and was much excited. He appeared to come from a lane which I and my party afterwards turned up.This Roman Catholic clergyman muttered something which Captain Eagar could not easily catch. When the soldiers got to the lane, Captain Eagar stated—The lane was then full of people. During the entire time the mob was shouting furiously and hooting the party. Just as the military and voters entered this lane stones began to be thrown at them. I called out to the mob several times, 'For God's sake, men, mind what you are at, or what you are doing, as my men are all loaded.' But no attention was given to my remonstrance or warning. The mob still continued to throw stones; and when the head of the party with me had got to the corner of the Bridewell I heard a cry from one of my men to look behind; on doing so I found that the car, which should have been close to me, was some paces behind, and men were trying to pull the voters off. I immediately ran back with two or three soldiers, and, having got between the voters and the mob, cried out to the people to keep back. At this period stones were flying very fast, and the mob appeared greatly excited. While engaged with the car aforesaid, I heard a shot fired, which, after a very short but marked pause, was succeeded by others as quick as possible. I thought at the time that there were only five or six shots fired. I saw one man fall, and instantly called out as loud as I could to my men to cease firing. When I saw the man fall, his arm was raised as it would be in the act of throwing or striking, and as the man fell all the people in front ran away, which caused me to give the order to cease firing, as already stated. I further say 324 that, after the firing had ceased, and the mob had fled, the soldiers were brought in front of the Court-house; one soldier was exceedingly injured, and two were bleeding from wounds in the head. The blood was running down their collars. Three or four others of the soldiers were also wounded, and had blood upon them. One of the sergeants had his cap burst in below the crown. The knapsack of another soldier was burst in, and several others injured, and the corporal lost his cap altogether. The soldier who had been so seriously injured was placed under medical treatment. It is wholly untrue, as stated in the newspaper article hereinbefore referred to, that the men of the 31st Regiment. under my command at Six-mile Bridge, were guilty of wilful and deliberate murder, or that they slaughtered the Irish people there, or 'that the party butchered our fellow-countrymen in the open day, upon their native soil,' as I verily believe that the soldiers fired in defence of their own lives, and of the voters intrusted to their charge, and that such firing did not take place until the soldiers felt that their lives and those of the said voters were in imminent peril from the attacks of the said mob, and that if such firing had not taken place, many of the military party would have been killed and others disabled, whereupon the mob would have gained possession of their arms; it is, therefore, my opinion, that the firing was necessary, and that if such had not taken place there is no calculating the extent of bloodshed which might have occurred. I further say that it is wholly untrue, as stated in the said article, that the soldiers discharged their guns without provocation, the truth and fact being that they abstained from so doing until further forbearance would have placed the lives of the party in imminent peril, and, moreover, would have been derogatory to men in their position as soldiers, carrying Her Majesty's arms, in the discharge of a legitimate and important duty.Now Lieutenant Hutton stated as follows, as regards the scene in the lane:—A vast number of people followed in the rear, who continued to hoot and groan; that the people almost immediately, and without any provocation whatsoever, commenced throwing stones, which was continued without intermission; the people at the same time pressing on the rear of the party. I remonstrated with them several times on the impropriety of their conduct, but they nevertheless continued to press on the soldiers, whom they jostled, and stones were thrown even more violently than before. The crowd shouted something about convicts, and a Roman Catholic priest said loudly, in the presence and hearing of the people, 'Oh, my God, to see our own religion, flesh and blood, convicts like these." After this I heard it said generally by the crowd, 'pull the voters off the cars." At this time the character of the stone throwing was extremely violent and dangerous; as we approached the chapel the stones which were thrown were very large, and came in rapid succession, and were most dangerous; and at this time I had considerable difficulty, assisted by the soldiers under my command, in preventing the voters from being dragged off the cars and carried away; those attempts were of constant recurrence, and simultaneous with the stone throwing. The stones were first flung at the voters, and then at the party generally. I again remonstrated with the people, but 325 without any effect, and being closely pressed upon I faced my men about, and drove the mob back with the bayonet; when the soldiers returned to their former position in defending the voters, the mob also returned, and renewed the stone throwing at the soldiers, and the voters under their charge, with great violence, as before. I was myself struck three times with stones thrown by the mob; and several of the military party and voters were also struck with stones. The bayonets and firelocks of the soldiers were struck with stones thrown by the mob, and I heard the stones rattling off them. I was in the rear of the cavalcade, and did not see the military party in front met by the mob, and I heard a shot fired, at which time I think the leading section had just entered the lane. At this time the people were greatly excited and violent, and the soldiers had been extremely ill-used. I ordered the men under my command to face about, and load, considering at that time, as I do now, that the lives of the military, and the men whom they were protecting, were in imminent peril. After the soldiers of my party had loaded, and resumed their former position, the mob returned, and renewed the attack as before. The first shot appeared to have no effect in awing the people, or preventing them from assailing the party in the rear, as there was no alteration in their conduct. The soldiers with me were greatly excited, but bore the ill-treatment they received with patience, until they saw their comrades knocked down. I saw several of the soldiers lying on the ground; stones were thrown with great violence at a van just before me, in which some of the voters were, which was struck repeatedly, and the lives of the persons in that vehicle, as I conceived, were in very great danger. The soldiers under my command said to me, 'They will have our lives, sir, and are we to allow ourselves to be murdered?' and some ofthem asked me to permit them to fire, but I refused to do so, because it appeared to me that the firing which had taken place in front had at this time intimidated the people, who were giving way and flying past me to the rear, otherwise I should have ordered my men to fire in the preservation of our lives. I further say that it is my decided opinion that the firing of the military was justifiable and necessary, and that, if such had not taken place, many of the party would have been killed and others disabled, when the mob would have gained possession of their arms, and the voters would have been carried off.Looking, then, at the evidence he had described, and finding that there was no case alleged against any individual man of improperly firing; that, according to the sworn informations of the two officers, confirmed by the sergeant, the firing was justifiable; that one man was knocked down; that the large multitude assembled forced themselves in between the soldiers, and one man cut the bridle and the traces of the harness, and another, with a blow aimed at the sergeant, split the back of the car from end to end; he appealed to every man of sound judgment and right feeling to say, was it possible to come to any other conclusion than that to which he (Mr. Napier) arrived— 326 namely, that this was a case in which the soldiers ought to receive constitutional protection, and that steps should be taken of the most firm and stringent description to bring to public justice the prime movers, ringleaders, and principal agents concerned in this most disgraceful outrage? He freely admitted that the determination he came to after reading these informations was, to give constitutional protection to these men, and to bring to condign and adequate punishment the guilty perpetrators of this brutal and murderous attack. A great deal of doubt and confusion had arisen as to the rights and duties of soldiers when employed on such an occasion as the one to which he had alluded. Now, it was most important that there should be no confusion about it; that it should not depend on any subtle or refined distinctions; but that whatever their duties might be, they should be understood by the plainest common sense; and, for his part, he was not aware of any doubt in the state of the law which was applicable to a case of the kind. Regarding it as a matter of great public interest and importance, he was sure the House would pardon him if he ventured to suggest exactly how he thought the matter stood. He had no wish to bring the charge of any learned Judge before that House; but he wished to state, without reference to any charge that might or might not have been delivered, the view he took of the rights or duties of soldiers upon such occasions, and to show how he applied that to the evidence before him to guide his own conduct in this matter. He apprehended, then, that the duty of soldiers on an occasion of this sort was not very different from that of any other persons. In one respect, there was a military question arising as between the military authorities and the troops; but whilst, on the one hand, a military order would not of itself furnish any justification of the act of the soldiers—so, on the other, the mere order of the magistrates would not of itself afford any justification. Of course, however, it would always be an important element in the consideration of the question, whether the act of the soldiers had been done reasonably or properly, or not; but though the soldiers, in point of military discipline, were bound to obey the order of their officer, that mere order of itself would not furnish a justification of the act of the soldiers in a court of law. The position of the men who fired in the present instance was, however, very peculiar. They had, by 327 the very act of the assailing party, been deprived of the presence of their officer, who had gone back to the car, where the more immediate attack was made. In his absence, the corporal was the person next in command of the men in front; but he being struck down to the ground, the men were left to act of themselves in the emergency. It was sworn by Lieutenant Hutton that the attack was so fierce that the lives of the men were in danger; it was also sworn that the corporal was knocked down senseless; that an attempt was made to wrest their fire-arms from the soldiers; that the mob endeavoured to prevent the soldiers from performing the duty upon which they were sent; and, let it be observed, that the military had been called out by the magistrates with the assent of the sheriff of the county. He would here beg permission to read to the House the opinion expressed by Lord Chancellor Thurlow in the case of the attack upon the house of Lord Mansfield. It would be found in the Parliamentary History, vol. xxi., page 737, and it contained an interesting account of the different parties who, under the common law, were conservators of the peace. Lord Thurlow held that it was the duty of every man to assist in the conservation of the peace; and he added, that the military when present individually as private persons, or collectively under military command, if they were insulted or assaulted by being pelted with brickbats, stones, &c., had a right to repel the violence and defend themselves. And he also stated that—Soldiers when not employed on military duty were obliged, if at quarters or elsewhere in the country, to obey the sheriff's summons whenever he called out the posse comitatus, and attend in person to receive and obey orders.So that when the military were called out upon these occasions, they were called upon to do the duty that other persons might have been called upon to do; and then Lord Thurlow adds—And, on finding they could not stop the outrage by any other means, after it had gone to the length of destroying property or assaulting or wounding His Majesty's peaceable subjects, then, and in that case, all present were warranted to proceed to extremity, and use such weapons as they were furnished with for the destruction of the rioters.Afterwards a similar view of the question was taken by Sir James Mansfield, in 4 Taunt., 449, to this effect:—Soldiers were bound by the duties, and clothed with the rights, of citizens. Their right and 328 their duty was to interpose to prevent any crime or mischief being committed, and it was not necessary that their commanding officers should give command, nor that a justice of the peace should be present. They might use their arms, and lawfully put to death, if necessary, to prevent felony.There was also an elaborate opinion given by Lord Ellenborough, about the time he became Attorney General, to the same effect, and it would be found in a note in Burn's Justice, vol. v., page 17, 25th edition. His Lordship stated that—In case of any sudden riot or disturbance, any of His Majesty's subjects, without the presence of a peace officer of any description, may arm themselves, and, of course, may use any ordinary means of force to suppress such riot and disturbance. This was laid down in my L. C. J. Popham's Reports, 121, and Kelying, 76, as having been resolved by all the Judges in the 3rd of Queen Elizabeth to be good law, and has certainly been recognised in Hawkins and others, writers on the Crown, and by various Judges at different periods since; and which His Majesty's subjects may do, they ought also to do for the suppression of public tumult, when any exigency may require that such means may be resorted to; whatever any other class of His Majesty's subjects may allowably do in this particular, the military may unquestionably do also. By the common law every description of peace officer may and ought to do not only all that in him lies towards the suppression of riots, but may and ought to command all other persons to assist therein. However, it is by all means advisable to procure a justice of the peace to attend, and for the military to act under his immediate orders, when such attendance and the sanction of his orders can be obtained, as it not only prevents any disposition to unnecessary violence on the part of those who act in repelling the tumult, but it induces also, from the known authority of such magistrates, a more ready submission on the part of the rioters to the measures used for that purpose; but still, in cases of great and sudden emergency, the military as well as the individuals may act without their presence, or without the presence of any other peace officer whatever.Then there was the well-known and remarkable charge delivered by Chief Justice Tindal in the case of the Bristol riots, and which was given with the usual precision and clearness of that eminent Judge. He held that every private person was bound to use his best efforts to suppress a riot, to assist in dispersing the rioters, or to prevent them executing their purpose; and he was bound to do all this to the best of his ability. If the riot was general and dangerous, he might arm himself against the evil-doers, to keep the peace; that whatever was honestly done by him in the execution of these objects would be supported and justified by the common law; that there was no distinction as to a soldier; and that he was generally bound 329 to attend the call of a civil magistrate. But there was another opinion to which perhaps the House would permit him to refer. It was the opinion of a man to whom he himself was indebted for all he happened to know of British law; and that was Sir John Patteson, than whom, in point of learning, ability, and integrity, no Judge had attained to higher respect in this country. He (Mr. Napier) had, for his own information and assistance, asked the opinion of Sir John Patteson, not merely on the abstract question of the law, but with reference to the application of the law to this particular case. But, as it was a matter of public importance to have the question clearly understood, on the receipt of that learned individual's reply, he (Mr. Napier) asked him if he had any objection to his mentioning that he had conferred with him, and had had the benefit of his advice and suggestions; and Sir John Patteson, with the frankness and good nature which characterised him, said, that if his authority was of any use, he (Mr. Napier) was quite at liberty to mention it. The opinion of Sir John Patteson was as follows:—I think your view of the law, as to the duty of the soldiers, is quite correct. They are in the nature of armed special constables to escort the voters; and if a forcible attempt is made to prevent their performing that duty, and still more to wrest their arms from them, they must repel force by force, and must use their arms by firing, if they cannot otherwise protect those whom they escort, and themselves; and, as I apprehend, the necessity for their so doing is not to be inquired into with minute criticism, but the onus is rather on those who undertake to say that the firing was wanton, a primâ facie case of necessity having been first fairly shown.Applying that opinion, then, to the informations of the two officers which he had read to the House, he would say that with regard to the charge of wilful murder against the soldiers, no tribunal could, with any show or sense of justice, find them guilty. Then, as to the question of what was to be done with the finding of the coroner's jury. Being of opinion—and that opinion being fortified by the order made by one of the learned Judges, that the evidence did not disclose a case of wilful murder—he (Mr. Napier) thought the most straightforward and manly course for him to take was to go into the Court of Queen's Bench, and submit to them his reasons why he thought the inquisition of the coroner was not supported by the evidence contained in the depositions—that the Court should not leave a record of 330 wilful murder standing against these men, if there were not evidence in law sufficient to sustain that grave and serious charge, and that the inquisition ought to be quashed. What he went on was this—the coroner was bound by a recent Statute, in cases of murder or manslaughter, to record the whole of the evidence given before him, and to return it with his inquisition; and he (Mr. Napier) contended that, upon the face of the depositions so returned, there was not legal evidence to warrant the finding of the coroner's jury. This position he illustrated by reference to the finding of a jury in a case connected with the work-houses in Ireland during the famine in 1847, and in which case the jury found the noble Lord the Member for London (Lord John Russell), who was then at the head of the Government—and he was not sure that the rest of the Government were not included in their verdict—guilty of wilful murder! His application was, however, refused by the Court. Now, he had before him the report of the judgment pronounced by the Lord Chief Justice of Ireland on the occasion of the application he had made to remove the record, and that learned Judge said—Some of these authorities establish the undoubted right of the Court to look into the depositions, and thereby to control the findings of the jury, for the purpose of bail. There is, then, besides these cases, the strong dictum in the case of 'Rex v. Hethersall,' in which the Court is reported to have said, 'If you can produce an affidavit that the jury did not go according to the evidence, we will grant the application to quash the inquisition.But he summed up his judgment by saying—Having no precedent for our guidance, and therefore without forming or expressing any opinion whatsoever upon the merits of the findings, or upon the sufficiency or insufficiency of the evidence to sustain them, we say, 'No rule on the Motion.'The Court considered they could not interfere merely for want of evidence, provided the inquisition was upon the face of it according to law. Before the informations had been sworn to by the officers, and as soon as it manifestly appeared that there were guilty parties who should be made amenable, he directed the proper proceedings against the prime movers concerned in the transaction. Accordingly, informations were taken immediately after the inquest, in August, which informations charged three sets of parties. He had read the evidence they contained, and he could 331 come to no other conclusion than that the conduct of the two Roman Catholic clergymen had been the main cause of the unfortunate affray; though they might not have at all anticipated the actual results which followed. One of them (the Rev. Mr. Bourke) admitted that he called upon the people to groan at the voters, whom he spoke of as "convicts;" whilst it was sworn by credible witnesses that the other, addressing a large crowd in front of the Court-house, took off his hat and said, "Ye are standing there idle, boys, doing nothing, and they are coming. Oh, what is this for? Will you allow them to come?" and immediately after, the people to whom these words were addressed rushed round the corner of the Court-house, into the lane, up which the voters were coming. Looking at these facts, he (Mr. Napier) repeated, that he could not come to any other conclusion than that they, from their conduct, had encouraged the people and incited them to go on from one step to another, until at last they broke through all control, and the unfortunate affray took place, the results of which all must deplore. The direction he gave to the Crown Solicitor was, to take informations against the ringleaders engaged in carrying off the voters by force, the men who attacked the car, and also the two Roman Catholic priests. Those informations were obtained, and he (Mr. Napier) contended that the law was to draw no distinction between person and person; and he felt that he should not have done his duty, as superintending the course of justice, if he had not sifted the matter to the bottom, with the view of bringing to justice those who had been the encouragers, inciters, and main agents in this unfortunate and melancholy affair. The informations were sworn against the two clergymen, against the man who attacked the car, and three or four of the more prominent rioters who had attacked the soldiers, and also against two of the ringleaders of a party of thirty or forty men who carried off the voters by main force from the house. And with these informations before him, he appealed to his hon. and learned Friend the Attorney General what course he would have taken if such a case had come before him in this country? The very first information—that of Henry Keane, of Beech Park, stated—That on Thursday, the 22nd day of July last, informant arrived at the village of Six-mile-Bridge, in the county of Clare, with some voters, 332 and a military escort, and when they entered the village they were met by a large mob, who began to groan and hoot, and after informant and the escort had come to the barrack side of the bridge, informant saw a Roman Catholic clergyman, whom he has since learned to be the Rev. John Bourke, parish priest of Cratloe, join the crowd, who were crying out, Here are Keane, the souper's men;' while others of the crowd were shouting to the voters on the cars that they should murder them when they would not have the soldiers to protect them; and when the escort had gone about the centre of Chapel-green, informant heard the Rev. Mr. Bourke say, Rescue Keane's men,' and at the same time some of the mob cried out, The boys are gone round' Two of the mob rushed at the car informant was protecting, and attempted to pull the voters out of it; but informant shoved them away, and then a great many persons rushed on informant, whereupon a soldier came up to informant's assistance, and threatened to use his bayonet; when the Rev. Mr. Bourke came up, and laid one hand on the back of the neck of this soldier, and then caught his arm or gun, I can't say which, when informant ran forward, and referred to Captain Eagar that his men were grossly insulted, and on coming back he again saw the Rev. Mr. Bourke, and heard him say to the crowd either Stand to,' or Fight for your religion,' and as the procession advanced towards the lane, the stone-throwing, which had been going on for some time, increased, and the violence of the mob became greater. Informant heard some shots, and shortly after saw a soldier on the ground, as informant thought, dead, and two men, over him, one after another making blows at him, one of them with something in his two hands, which he was in the act of dashing on the soldier who was down, when two other soldiers rushed at them with their bayonets and drove them off.Another witness, Bolton Waller, of Castletown—heard Mr. Bourke call the voters 'convicts,' and saw him make several attempts to get at the cars, but two of the soldiers drove him back with their bayonets, and immediately after stones were thrown by the crowd that accompanied Mr. Bourke, and as the escort advanced the violence of the mob kept increasing, and the stones were flying very thick; that on hearing a shot he rushed forward and saw two soldiers down, a little distance from each other, and on going further forward he saw a third soldier down, apparently senseless, and unable to get up; continuing to run towards the front, he saw another soldier knocked down, and cut from the blow. This soldier got up and fired down the street, and as informant looked to the left he saw another soldier on the ground, and a man with a stick in his hand, as if going to strike him, but he was driven off.Then there was the evidence of two of the soldiers themselves, one of whom was struck by a stone and knocked down—this man said he heard the Rev. Mr. Bourke desire the mob to pull the voters off the car, and afterwards saw him attempt to pull them off himself, but was 333 prevented by the informant's gun; the other deposed—That on hearing Mr. Bourke desire the crowd to drag the voters off the cars, be told him it was unbecoming a man of his cloth to urge a mob to such violence, and Mr. Bourke replied it was no business of informant's, and that he would not see his parish freeholders marched like convicts. This informant saw two of the crowd take out large knives, and open same, and at same time stones were thrown very fast by the crowd.Next came the evidence of two constables, one a Roman Catholic, the other a Protestant, who described the priest sending the mob round the corner to intercept the voters from Limerick. Captain Studdart deposed that—A priest, whose name witness was informed was Clune, used threatening language to him; telling witness he had no right to come to the bridge to vote; that it would be better for him to return to Kilrush, and called on the mob to groan him, and repeated the same conduct frequently during the day.And again—The last time witness was addressed in that manner and with increased violence was near the Court-house door. Witness told Mr. Clune that he had already gone too far, and that he had made himself remarkable by conduct so differeut from what it should have been from the coat he wore. Mr. Clune then called to the mob, and asked them would they stand by and hear their priest spoken to in that manner?This was but a faint outline of the depositions, which embodied distinct charges of crime against the several parties accused. He should have conceived himself unworthy of the office he held had he made any distinction between person and person. In the neighbouring county of Limerick, several men had been brought to justice for offences committed at the election; why had the offenders in the county of Clare been suffered to escape, connected as their offences were with results so terribly fatal as those which had occurred at Six-mile Bridge? He (Mr. Napier) granted that it was a painful duty at any time to bring a charge against a Christian minister, for to do so might be injurious to the influences of the clerical character. But then the law must be impartially administered, as well in their case as in that of the men who attacked the car and bore off the voters. Having the informations before him which he had described, and others, of which he had copies in his hand, fully establishing criminality, he had determined upon prosecuting the inculpated priests, not because they were priests, but because they were subjects, believed to 334 have been guilty of violating the law. He had been told, indeed, that if he prosecuted the priests he would have the whole conntry up in arms; but he had considered this contingency as of little weight in comparison with the important point of having the law firmly and fairly enforced against all offenders whomsoever. Nothing was more essential, and nowhere more essential than in Ireland, than that justice should be administered fairly, firmly, and impartially, without distinction of person or position; and he thoroughly believed that it was the systematic adherence to this principle by Lord Eglinton that had helped to procure for that nobleman his eminent popularity while Lord Lieutenant of Ireland. With that resolve, he then ordered that all those persons should be held to bail, and accordingly they were held to bail—the two clergymen, five rioters, and two of the persons who carried off the voters. One of the five, M'Grath, was put in prison for want of bail, but was afterwards bailed out. Subsequently, however, he was sent back to prison by his own bail; and this man who had cut the traces of the car, was brought up from the gaol as a witness against the soldiers upon an. indictment charging them with wilful murder. Now at the time he (Mr. Napier) left office the matter rested in that position—the soldiers were out on small bail—the inquisition of the coroner was in the Court of Queen's Bench—the informations had been taken to which he had referred, and the Anglo-Celt newspaper was formally convicted before a jury composed of persons of different religions. The matter standing thus, early in the present Session of Parliament, on the 11th of February, a question was put in another place by the Earl of Cardigan to the noble Earl at the head of the Government with reference to their intentions respecting it. And the noble Earl, in answer to that question, said:—If the case was so clear as the noble Earl represents it—and I am not disposed to doubt it, for from every account I have received of the transaction, the manner in which he describes it is perfectly correct—but if the case were so, why did not the learned Gentleman, the law officer under the late Government, enter at once a nolle prosequi? He might thus have stopped the proceedings at the instant. The present Attorney General may still do so, for I am not prepared to say what course the Irish Government may determine on taking. As to the prosecution having been undertaken by the law officers of the Crown, that is a matter in course in Ireland; but the Attorney General may at 335 any stage of the proceedings, by interfering on behalf of the Crown, stop the further progress of the trial. I am sure I do not know whether it will be considered right to proceed at all; but if it should, and if the case should be sent for trial, the grand jury may ignore the Bill, and if so, that would be an additional reason for the Attorney General execising the power to stop further proceedings."—[3 Hansard, cxxiv. 31.]As to the prosecution of the priests, and the parties charged as ringleaders, the noble Earl said, "it was then under the same consideration as the other matter." On the 18th of February notice was given by the Earl of Cardigan that the question would be repeated on the following Monday as to the course to be taken with regard to the soldiers, the priests, and all the other parties. On Monday February 21st Lord Aberdeen announced that the Irish Government had decided on sending up bills to the grand jury against all the persons against whom verdicts were returned by the coroner's jury.
The course Her Majesty's Government had to take was perfectly clear. The grand jury would deal with the bills as they thought proper, and it would ultimately be for the Government to decide what course they should pursue. He certainly did think that, considering what had taken place in that case—considering the decision at which the Court of Queen's Bench had arrived, no other course had been open justly and properly to Her Majesty's Government, excepting that which they had taken."—[3 Hansard, cxxiv. 340.]Lord Aberdeen then proceeded to quote the last paragraph in the reply from the Lord Lieutenant to the memorial, as showing that the late Government had determined to prosecute the soldiers, and proceeded to insist that as, on his (Mr. Napier's) Motion, the coroner's verdict was sustained by the Queen's Bench, this rendered it doubly necessary to prosecute—as being the regular course in all similar cases. As to the prosecution of the priests, the noble Earl said—In reply to that question, he (the Earl of Aberdeen) had to state, that he made no distinction between soldiers and priests. All he wished to state to their Lordships was this: that as long as he had anything to do with the Government of Ireland, he would undertake, that without any exception, either in the case of soldier or priest, of peasant or of peer, justice should be administered to all. The bills against the priests would therefore be proceeded with just in the same way as the bills against the soldiers."—[3 Hansard, cxxiv. 341.]This was excellent constitutional doctrine; why had it not been acted upon? The noble Earl at the head of Her Majesty's Government had, as the House heard, 336 asked why, if the case were as had been represented, the Attorney General had not entered a nolle prosequi? The noble Earl seemed to imagine that such a proceeding on his part would have settled the affair. The noble Earl misconceived the effect. In the case of Goddard v. Smith, which was one for maliciously indicting the plaintiff for barratry without probable cause, setting forth that he was debito modo, inde exonerat, at the trial, to prove the declaration, he produced a nolle prosequi by the Attorney General; and the Chief Justice, doubting whether this evidence maintained the declaration, and strongly inclining that it did not, reserved it for the opinion of the Court; and he said that the entering a non pros. was only putting the defendant off sine die, and, so far from discharging him from the offence, that it did not discharge any further prosecution upon this very indictment; but that notwithstanding new process might be made out upon it, and he added that it was hard to allow a man who got off by a non pros. to maintain an action for a malicious prosecution. Indeed, he said, if he had pleaded "Not guilty," and the Attorney General had confessed it, that would have done; but he who got off upon a non pros. did not get off at all on the merits of the case. But this was here not so much as a nonsuit, for the indictment still stood in force, and the Attorney General might make new process upon it when be pleased. Chief Justice Holt said—He had known it thought very hard that the Attorney General should enter nolle prosequi upon indictments, and that it began first to be practised in the latter end of King Charles II., but that on informations it had been frequently done.The noble Earl had also somewhat misapprehended the case, as to the memorial from the friends of the persons who had been killed. There had, indeed, been a memorial to Lord Eglintoun, professing to come from the friends of the persons who had been killed at Six-mile Bridge, praying to be permitted to nominate counsel and attorney, to be assigned to them by the Lord Lieutenant, and that the conduct of the proceedings against the soldiers and magistrate might be removed from under the control of the law officers of the Government of Ireland, and committed to such counsel and attorney; and to this was the reply of the Lord Lieutenant, dated December 10, which concluded by reprobating an application made— 337with such an object as that of inducing him (the Lord Lieutenant) to suspend the Attorney and Solicitor General from the discharge of their imperative duties.He (Mr. Napier), however, had not seen or heard of this reply until three or four days after the resignation of office by the late Government; therefore that had no influence on the course he had taken in the case, nor was it intended to intimate anything more than this, that whatever would be done, would be on the responsibility of the law officers, and not private parties. The matter then remained over until the 29th of January, when the right hon. and learned Attorney General for Ireland remitted the inquisition to the assizes. But at the assizes there was no prosecution of the priests and others, the Judge not calling the attention of the grand jury in his charge to the depositions, as was usual in all such cases. It was, perhaps, nothing but right that in Ireland public prosecutions should be taken up by the public officer; but it was a remarkable fact in this case that the Judge did not in Ids charge take notice of the depositions upon oath of the parties as to the priests and principal assailants of the soldiers. This was very strange, after what had been stated in the House of Lords by the First Minister of the Crown, who said that the inculpated priests should be proceeded against with the same measure of justice that was used towards the soldiers. But this was altogether set aside, for the soldiers—ten in number—and one magistrate, were alone proceeded against. Moreover, these ten soldiers, denounced for what they had done in the discharge of their duty, who certainly could only be responsible each for his own act, and against no one of whom was it pretended that he had shot all the seven men who had been killed, were, each and all of them, and the magistrate with them, indicted for the wilful murder of all the seven persons killed. On the back of the bill were placed as witnesses against them the name of one of the clergymen against whom sworn informations in the same case were then pending, and also the name of that Magrath to whom he (Mr. Napier) had alluded, and against whom sworn informations were likewise pending for an attack on the car. At the same time that their names were placed there, those of Captain Eagar, who commanded the company, and Lieutenant Hutton, who was present all through the proceedings, both of whom had already sworn informations 338 at the instance of the Crown, were omitted to be placed in the same position, though no persons were better qualified to depose to the facts, or more likely to tell the truth than these gentlemen. His (Mr. Napier's) notion with regard to sending bills before the grand jury was this: He admitted that, in a constitutional point of view, it might be convenient to take the opinion of that body upon broad questions, as a corrective of popular prejudice; but he repudiated the whole transaction as it passed in this instance. If the whole of the witnesses had been sent up at first, he might not have objected to it, though for his own part, when he had not sufficient legal evidence to support an indictment, he should not think of asking the grand jury to ignore it; but the whole of the witnesses had not been sent up: they were not, as he had already stated, on the back of the bills, and therefore he could not approve of the course that had been adopted in this instance. The right hon. and learned Attorney General certainly said, as regarded six men shot in the lane, that no tribunal could find the soldiers guilty of wilful murder. Why, then, were the bills sent up to the grand jury charging wilful murder against these men? The most remarkable thing, however, was, that the grand jury before they would arrive at a decision, came out and asked that the two officers whose names were not on the bills should be sent up for examination, thus proving the importance justly attachable to their testimony. After some demur, these officers were sent up at last; and the bills, one and all, were ignored by the grand jury. This, again, proved how important these omitted witnesses were to a proper scrutiny of the transaction. With regard to the seventh man, the right hon. and learned Attorney General said, certainly there was no evidence to show who killed the deceased; but he alleged generally that murder or manslaughter had been committed, and said, if he could find out the perpetrator he would put him on his trial. How could the grand jury find the perpetrator out if the right hon. and learned Attorney General could offer no evidence to satisfy them? Here were ten soldiers maltreated and ill-used by a mob, and then having bills for murder sent up against them, backed by two of the parties implicated on oath in the assault and riot, while the testimony of their own officers, which had been recorded on oath in the informations, was kept back. Was that fair to 339 the soldiers? After the bills had been ignored, one of the soldiers was brought forward, and arraigned on the coroner's finding, which applied to the case of the six men shot in the lane. It was satisfactory to him (Mr. Napier) that so able a lawyer as the right hon. and learned Attorney General should have come to the same conclusion as he did, namely, that there was no evidence which the Crown could offer to a jury in the case—and that a verdict of acquittal had been recorded in proof that no means existed of sustaining the charge—that the evidence, in fact, was such as no Judge would or could direct a jury to convict on. But the matter did not stop there. Though no indictment had been found for the murder of the seventh man, and no inquisition found which could be used as an indictment, the Attorney General made a statement, in reference to this latter case, which could not be legally investigated in open Court, and which was calculated to leave an impression on the public mind, as respected the soldiers, which they had no opportunity afforded them of refuting. That impression was, that one or more of these soldiers had been guilty of murder, or, at least, of aggravated manslaughter; and, as the other soldiers had had no bills found against them, neither they nor this man were enabled to bring forward evidence which was in their power, to rebut this accusation. Therefore, at the end of the case, one of these men, who he (Mr. Napier) believed in his conscience had only performed their duty as British soldiers, was not only placed as a felon in the criminal dock of the Court on a wholesale charge of murder, but they were not permitted the opportunity of rebutting this charge, even though the grand jury had thrown out the bills that had been sent up against them. His (Mr. Napier's) hon. and learned Friend and Colleague in office (Mr. Whiteside) was the counsel for the soldiers. His hon. and learned Friend had some delicacy at first in undertaking the duty—the soldiers being obliged to make provision for their defence, and no counsel being allowed them by the Crown, they were naturally anxious to have the best assistance. He (Mr. Napier), however, had convinced his hon. and learned Friend, that inasmuch as he had never been the prosecutor of these men in his official capacity, and, moreover, as it had never been intended that they should be prosecuted without evidence—he was not only perfectly free to undertake their 340 defence, but in the interest of public justice it was his bounden duty to defend them. The charges, however, were not further brought forward, and the case terminated as he had already stated, with the public imputation that one or more of those soldiers had been guilty of murder, or, at least, of manslaughter. And while all the parties against whom informations were pending as already stated were not even arraigned, but were discharged from their recognisances, the soldiers were left with the imputation resting upon them as objects of popular odium. A magistrate also was left in the same predicament, and the state of that unfortunate gentleman, whom he (Mr. Napier) had once known at the bar, was most melancholy and piteous; being obliged to have the police constantly in his house, and being unable to go to fair or market on his lawful business, in consequence of the odium thus heaped upon him. Mr. Justice Patteson, as he (Mr. Napier) had already stated, had said that in this country the course of the Crown, under such circumstances, would probably be to defend the soldiers. But at least it required explanation why the soldiers were prosecuted, and the Attorney General never submitted the bills against the opposing parties to the grand jury. That course had not been taken—that had not been done—and the result was that an impression was left on the minds of the people of Ireland—a sharp, sensitive, and shrewd people—more so than many persons imagined—that justice had not been done in one case or the other. The feeling of the Irish people was, that the military were amenable to the law, like other subjects of the Crown; but they now felt also that there were other persons in that country who were not amenable to the law, and therefore above the law. Such was the result of the course taken in this case. The fact was, the Government in Ireland, at this moment, was not direct enough, or sufficiently straightforward. They raised difficulties with which they were afraid to grapple, and the parties who offended against the law therefore escaped. That was the cause why the course proposed by him, when in office, with respect to the case in question, namely, to group the parties together, so that there should be perfect impartiality on the trial, had been abandoned. Notwithstanding all that had been elicited, there had been no indictment for perjury framed against any of 341 the witnesses against the soldiers, no proceedings against the mob who had attacked the cars and carried off the voters, or against the priests who had incited the infuriated populace into violence and outrage. A reason which had been alleged for not prosecuting one of the Roman Catholic clergymen was, that his name was upon the back of the indictment, and that it was not desirable there should be a cross case against him. But, if that were so, why, he asked, had the name of that clergyman been put upon the indictment when there was no cogent reason for having it so? Who put it on the Bill? The Earl of Aberdeen said in the House of Lords that the grand jury were expected to ignore the bill. Why, then, was the name of Magrath put on the back of it? His (Mr. Napier's) information stated that certain other indictments in connexion with this case had disappeared, he would not say how, from the grand-jury room—among others, one against that very Magrath. What he (Mr. Napier) complained of was, that the soldiery were harassed and assaulted; that after the bills against them had been ignored, they were arraigned on a mock and unreal form of inquisition; that the Attorney General, who said that he had no evidence to go before a jury, made on their arraignment a statement which cast the most serious imputation possible upon them, without affording them at the same time any opportunity of refuting the allegations in that statement, which consequently now stood against them upon the authority of that right hon. and learned Gentleman; and that the other parties who had been accused of participation in the offence charged against them were suffered to escape. With regard to Mr. Delmege, the magistrate, it had been stated that if he had been in his place in front of the procession, there would have been no lives lost. He (Mr. Napier) thought that this gentleman was in the place he ought to be—for he was in the place where there was danger. Before the second clergyman had sent down the rush of persons through the lane which caused the firing, the disturbance, and therefore the danger, was rather in the rear of the procession. Mr. Delmege, however, it was sworn, was in the rear when the firing took place in the front; and yet he was accused in this case of wilful murder. He (Mr. Napier) regretted to have to make these statements to the House, as he felt a sincere respect for the position 342 and attainments of the right hon. and learned Attorney General for Ireland; he hoped he would not be charged with any other motive than the desire to do justice to the parties, and to vindicate his own character while in office. He had stated the case fairly, he had stated it fully. If he had in any instance expressed himself warmly, it was because he felt so on the subject. He thought the case was one which imperatively demanded inquiry. He thought the soldier should be protected in the discharge of his duty; and so long as he did not overpass it, that he should be sustained by the powers of the law. The rule of law was, in fact, to that effect. As soldiers they were now cleared—as soldiers the Attorney General admitted he had no case, no evidence which he could offer to a Jury as against them—and yet he afforded them no opportunity of refuting the criminatory statement made on their arraignment. He (Mr. Napier) hoped the case would be so thoroughly sifted to the bottom as that these, the really innocent parties, would have in their favour the sound public opinion of the country and of that House, and stand clear of all imputation. He hoped, moreover, that the House would take care to see, as far as it could, that elections were free in Ireland as well as in England, that the soldiery were sustained in the discharge of their duty, and that every man wilfully violating the law, of whatever class or condition he might be, should be brought to the bar of public justice, and made amenable to legal punishment.
Motion made, and Question proposed—
That there be laid before this House Copies of the several Inquisitions removed from the Court of Queen's Bench in Ireland in the month of January last, and transferred to the county of Clare:
Of the Order of the Court under which they were so removed:
Of the several Depositions taken before the Coroner of Clare, and of the several Informations taken before any Magistrate, in relation to any of the cases of homicide, riot, unlawful assembly, or other criminal offence alleged to have been committed at the town of Six Mile Bridge in the month of July last, at the time of the General Election:
Of Entries in the Crown Book in any of the said cases, as to the proceedings at the Assizes recently held at Ennis, founded on such Depositions or Informations:
And, of every Bill of Indictment preferred at the late Clare Assizes in any of the said cases, the names of the witnesses indorsed thereon, distinguishing such as were so indorsed on sending
up the Bills to the Grand Jury, and others subsequently added on the request of the Grand Jury.
MR. J. D. FITZGERALD
said, as he bad been mixed up in these proceedings, he ventured thus early to offer his assistance in investigating the case laid before the House by the right hon. and learned Gentleman. He had listened to the right hon. and learned Gentleman with great attention for nearly two hours; but he confessed he was still considerably in the dark as to what was the object of the Motion. If it was to glorify himself, if it was to make charges against Her Majesty's Government, if it was to seek an opportunity of impugning the conduct of his successor in office, his speech was intelligible enough, distinguished as it was by great want of candour, and artful nisi Prius dexterity. He fully concurred in what the right hon. and learned Gentleman stated, that every endeavour should be made to maintain freedom and purity of election, and that the laws should be administered fairly and impartially without regard to persons; but he also thought that the chief law officer of the Crown, who was intrusted in Ireland with a large share of the government of the country, should not be a partisan in any case. He agreed with the right hon. and learned Gentleman that there ought to be an absence of force and violence at elections; but he should presently show the House that the cause of this sad transaction was the force which was used, unfortunately and unhappily, by the landlords of Ireland to coerce the judgment of their tenants, to prevent their exercising their free wills, and to make them turn to their (the landlords') own purposes the elective franchise. He was one of those who did think the elective franchise a great public trust, committed to every elector not for his own purposes but for the public good, to be exercised in broad noon, before the public eye, and subject to the influence of public opinion. But he must add, that what he knew of the coercion used at the last elections in Ireland and in this country, towards the humble class of voters, induced him to alter that opinion very much, and he was prepared to concur in any law which would secure the voters against the power of their landlords, and render unnecessary the interference of the priests, and the introduction of military law. He could point out individual instances of cruel op- 344 pression, practised in the name of legal right by persons in the position of landlords, on tenants, who, if they did not yield and vote as their landlords directed them, were cast forth from their homes, and, perhaps, left to perish on the way side. He would not trouble the House with those details. He would only mention that this sad occurrence took place in the county of Clare; and the mention of Kilrush with the name of Sidney Godolphin Osborne would suggest volumes of the devastation which, under the guise of legal right, was practised on the unfortunate tenantry of that district. If anything like satisfaction could spring from a transaction like this, he should rejoice at its being brought before the House, because it gave him an opportunity of setting right public opinion upon it. Never was a case so much misunderstood, and never was a case so much misrepresented, as this case had been, by the right hon. and learned Gentleman opposite. He should take up the transaction at the commencement, and deny, in the first place, that these voters were carried off by force to prevent them voting in the way they intended. The fact was the very reverse. They were voters residing on an estate for which a person named Keane was agent, and on the Sunday night before the election he had caused these voters to be driven, like a flock of sheep, into a house—into a prison in fact—lest they should escape and exercise the elective franchise according to their wishes. A communication was made to the party to which they belonged—to the Liberal party—and by them, and some persons who came from them, the voters were liberated and brought into the city of Limerick, into what was called the Temperance Hall. He begged to tell the right hon. and learned Gentleman, that although he might bring his experience of the north of Ireland with him, in Limerick the Temperance Hall was not the place of meeting of a Ribbon or Orange Lodge, but of persons who had adopted and carried out temperance principles. These men were brought to Limerick, and, by their own words, were brought as volunteers. He intended in any statement he made not to read depositions from the Crown Office, prepared under the direction of the right hon. Gentleman, which no hon. Member ever saw, but recorded sworn evidence, taken in a public Court, where the witnesses were exposed to the test of cross-examination. One of the witnesses examined at the in- 345 quest was Dr. O'Connor, a gentleman of respectability, who, after stating that this Temperance Hall was situated in a public place, and divided only by the public street from the police-barrack, said—I visited the Temperance-room hearing that the voters were there. The doors and windows were open. The policemen could be seen opposite cleaning their accoutrements, and any one calling out could be heard. If they wished to go out, there was nothing to prevent them. I asked them what they did there? They sad they did not know. I asked them if they had any particular reason for voting? They said they had no leases, and were at the mercy of their landlords.There was the statement from the lips of the voters themselves; and to the right hon. and learned Gentleman's charge that they were put in the Temperance Hall by force, and carried off by a lawless mob, he (Mr. Fitzgerald) said they were volunteers escaping from imprisonment, and labouring under coercion because they had no leases, and their landlord would enforce his rights against them. The right hon. and learned Gentleman said that certain magistrates, hearing that the voters were abstracted, applied for military aid. No doubt they did apply to the commanding officer at Limerick for military aid; but the next statement of the right hon. and learned Gentleman, that the requisition of the magistrates was founded on an information, he denied. It was not; there was no information. Mr. Delmege, who had been also indicted on the charge, was a magistrate; he was prepared to show that he was a partisan magistrate. He brought the military force to the Temperance Hall at Limerick. The voters who were there had been released from imprisonment, and Mr. Delmege's object was to imprison them again. He came up with a van—a moving prison—for the purpose of taking them to Six-mile Bridge. He found that a man named Mulqueew, who was examined at the inquest on behalf of the soldiers, stated, on his cross-examination, "that he sat at the door of the van or omnibus—that he was told to sit there, and not to let the voters out, by Mr. Delmege, who gave him directions to keep his eye on the voters, and not to let them escape. His duty was to get them in and to keep them there." Did the House call that freedom of election? He was generally employed by Mr. Delmege, who paid him 2s. a day. He might mention here that the law was not administered in Ireland in the same way as it was administered in this country. Unfortunately it 346 happened that occasionally they had such things as partisan law officers in Ireland, who, from time to time, used their powers for working out political and party purposes. Among other points of difference, this was one—that in the administration of the law in Ireland, the Attorney General for the time being had in his hands the conducting of all public prosecutions. The only cases where individuals had a right to interfere was forgery, or the stealing of cattle, or matters of private offence; but in all important questions, and especially where human life was concerned, the Attorney General acted as public prosecutor. He was the more particular in making that statement, because it was thought by many persons that the present Attorney General having himself gone down to conduct the prosecution of the soldiers, did something out of the usual course, and that it was to be taken as a proof that he thought the soldiers were guilty. No such thing. The right hon. and learned Gentlemen went down because it was a case of public importance—because it was a case of great legal difficulty, requiring much discretion and skill. Another difference in the law of the two countries related to the employment of the military at elections. In the happily free country of England, their fore-fathers had taken care to provide that no military were allowed even to appear at a place where an election was going on. At a Westminster election which occurred more than a century ago, great rioting took place, and the high bailiff thought fit to call in the assistance of the military; a complaint was made to this House, and a Resolution was passed that the presence of a regular body of armed soldiers at the election of a Member of Parliament was an interference with the liberties of the subject, a defiance of the law and of the constitution of this country. Now, so far as the Resolution went, the law of the two countries was the same; but, not content with the Resolution, and with ordering the bailiff to appear on his knees at the bar to receive the reprimand of the Speaker, Parliament passed an Act, though it did not apply to Ireland, by which the presence of soldiers at an election was absolutely forbidden. He the rather called attention to this circumstance because he found that a noble Lord opposite (Lord A. Vane) had given notice of a Motion in which he was about to ask the House to pass a Resolution commending the conduct, the forbearance, and the discipline of 347 the military; and he supposed that Resolution would be followed up by another proposing that the thanks of this House should be conveyed through Mr. Speaker to the victors of Six-mile Bridge. He would now return to the scenes that were enacted in the streets of Limerick, where the soldiers received charge of the voters. It was there that the first unfortunate step—the step which led, in his opinion, to all the rest of these sad transactions—took place. Captain Eagar, the officer commanding the detachment of the 31st regiment, asked Mr. Delmege whether his party were to load; and Mr. Delmege answered, "Yes, load with ball." This was eight miles from the place where the riot took place. The animus which actuated the parties was further shown by the fact—which was sworn to that Captain Eager first knocked at the wrong door, and not receiving an answer, he, in the peaceful city of Limerick, turned to Mr. Delmege and said, "If you wish it, I can blow the door open." He then knocked at the next door, which was the right one, when an old woman came out and let him in. So much for the prowess of the military. Now, he would call the attention of the House to the statement of two witnesses. First, Michael Pearce said that he was in Limerick when Mr. Delmege and the military arrived there. He saw a pistol in Mr. Delmege's hand, and a man named Costello muttered something to him, on which he said, "Now, my lads, you had better be quiet, for if you don't I'll give you the contents of this in your head." By the way, he might state here that he intended to conclude by asking the right hon. Secretary for Ireland whether Mr. Delmege was to be allowed to remain in the commission of the peace? But let the House hear the sequel of what this gentleman said. Referring to the election for the city of Limerick, he said, "You have had your election, and it is time that we should have ours now, or we will have blood for it." This was the statement of a witness who was examined and cross-examined, and not one word of his evidence was contradicted. The other witness to whom he wished to refer was Jeremiah Tierney, driver of the omnibus, who had been before the driver of the mail-coach—a person well known to all who were in the habit of frequenting that road as a person of undoubted veracity. He said he heard one of the soldiers say, after loading his musket, that he 348 hoped they would get some provocation to discharge their muskets, so that they would not have to draw the charge. He should not be dealing fairly with the House if he did not tell them that the man added he thought the soldier said it in joke; but he was sorry to say that this joke turned out to be sad earnest in the sequel. He would now ask the attention of the House to the state of the peaceful village of Six-mile Bridge, which was one of the polling places for the county of Clare. A body of evidence, which had not been contradicted, established the fact that up to the arrival of the military all was peace and order in the village, and one of the magistrates, who had been present at eleven elections, said he never knew so peaceable an election as on that occasion up to the time of the arrival of the military. Mr. David John Wilson, himself a retired military officer—a gentleman of station and character—stated that he exerted himself in the early part of the day to establish peace and order, and that he persuaded the crowd assembled to go to the police barrack and deposit their sticks there. Now be thought he need not tell the House that a stick in an Irishman's hand was no indication that he intended to commit an assault, for in truth it was his ordinary accompaniment; but still, as a stick in the hands of an excited man was a formidable weapon, Mr. Wilson persuaded them to deposit their weapons at the police barrack. One man, it appeared, refused to give up his stick, but the others took it from him by force. He the rather called attention to this, because the right hon. and learned Gentleman opposite wished to make it appear that there was a premeditated design got up by the priests to attack the military. He would make it as clear as light that nothing of the kind took place, while there was too much reason to think that there was and bad feeling on the other side, that induced them to take advantage of the first provocation that offered. Let him here tell the House a fact which had not previously been brought forward. Independent of the military force-which brought in the voters, there was a party of the 14th Regiment in the village of Six-mile Bridge where the polling took place, and there was also a large constabulary force. Now, though he had all respect for the efficiency of soldiers in preserving the peace, yet he would pit the Irish constabulary for that purpose against any force in the world. Under 349 these circumstances the party reached Six-mile Bridge, which, as the right hon. and learned Gentleman described it, consisted of one main street, terminating in a little square, on one side of which the Courthouse was situated, and opposite to it was the police barrack. But there was another route to the square, which led through a narrow lane, and unfortunately this was the route which the military selected. He did not intend to conceal from the House that there was riot—that there was tumult—that the men were injured; but he deceived himself if he was not able to satisfy the House that the soldiers had not received that provocation, nor were they placed in that position where they were justified in taking away human life; for by law no man was justified in taking away the life of another unless his own was placed in immediate peril, and that he could not otherwise escape. In this respect he had to complain of the right hon. and learned Gentleman, because he gave an incorrect version of the law. He said that if one man saw another attempting to commit a felony, he was justified in resisting the felon to the death. Yes, but if no felony were attempted, then he was not justified in taking away life, except in the most extreme case of danger. Now he would ask the attention of the House to the evidence of what took place at Six-mile Bridge, where seven persons met with an untimely. death—not a transaction that was likely to be soon forgotten. The right hon. and learned Gentleman who brought this case forward, appeared to think that he performed his duty if he obtained a political triumph here. But he would tell him that he had grossly neglected his duty through the whole course of his official career, in that he took no one step to investigate the circumstances, while he took every possible step to obstruct that investigation, and defeat the course of justice. Those were grave statements to make against a Gentleman who had occupied, and might again occupy, the responsible position of first law officer of the Crown in Ireland; but they were statements he made deliberately, and statements he would prove before he sat down. The only depositions which the right hon. and learned Gentleman made use of in the course of his statement, were those of Captain Eagar and Lieutenant Hutton. But both of these gentlemen were, more or less, implicated in the charge; and one of them, Captain 350 Eagar, the commander of the troops, was in this position, that either the men fired without necessity, or, if there was necessity, then he did not give the proper order. But he would read to the House the evidence that was given before the coroner's inquest—that Court which the right hon. and learned Gentleman had the courtesy to describe as a public nuisance, though it was one of the oldest Courts in the kingdom, and existed before the name of Attorney General was heard of. The homicides that took place were of two parts—six were killed in the lane, and one in the public street. Now, though he admitted that the soldier had all the rights of the citizen, and to take life in self-defence, yet the moment that the necessity for that course ceased to exist—the moment that the attack on him ceased—he was bound to refrain from the use of those deadly weapons with which he was armed; and if he did not, if he took human life, if he was not guilty of murder—he was certainly guilty of manslaughter. He had clear and satisfactory proof that if they could but have laid their finger on the soldier who fired in the street, he would have been guilty of murder, or at least of manslaughter; and he was prepared to show that the escape of the soldiers was by reason of the obstacles thrown in the way of public justice by the military authorities, as ordered by the right hon. and learned Gentleman. The first evidence he would quote was that of Mr. Wilson, a gentleman of whom he had previously spoken. He said—I was in the Court-house when I heard some shots fired. The military—that is, a detachment of the 14th regiment, and a portion of the police—were then standing on the steps of the Courthouse. I saw the people flying in all directions. I saw a soldier come out of the lane and fire. I then saw him load his piece, present, and fire again. Three soldiers came out of the lane and made a charge against a young man, who ran off. They pursued him; an obstacle caught his foot and he fell, when the three soldiers stabbed him on the ground.The noble Lord (Lord A. Vane), who had given notice of a Resolution commending the forbearance and discipline of the soldiers, would doubtless adduce this as an example of their discipline, that three British soldiers pursued an unarmed man, and when he was down they stabbed him to the heart. Now this was the evidence of a gentleman who had been a military officer himself, and who, though not a veteran, had probably as much military ex- 351 perience as the noble Lord opposite. The witness proceeded to say, "I swear that the conduct of the military whom I saw was both unsoldierly and inhuman." The House would perceive that Mr. Wilson described the scenes in the main street, where there was no riot and no fighting, but into which the soldiers rushed in a disorderly manner, and fired upon the people. Now let him ask their attention to what took place in the lane. John Cogan, who happened to be in the lane, said that there were not more than forty people in front; that he saw the military come up, five or six in front, and Mr. Delmege with them; that he heard Mr. Delmege give the word to fire; that at the same time Mr. Delmege raised his hand and fired; that then a soldier stepped forward and fired; after which Mr. Delmege called out, "Rear rank, fire." A man near him then called out that he was wounded, on which witness assisted him out of the crowd, and he saw no more. It must be remembered that a portion of the lane where these homicides took place was flanked by the wall of the Court-house, and ranged on the steps of that Court-house were the police and the soldiers of the 14th regiment. As to the lives of the escort being in danger, and the pathetic representations of the right hon. and learned Gentleman, that if one of the soldiers had been disarmed the whole of their lives would have been sacrificed, why they were not more, than ten yards from the place where an overwhelming force of military and armed constabulary were stationed, who never saw the slightest necessity for interfering. He would now call attention to the evidence of another witness, named John Gorman; and he had-the authority of one of the first gentlemen in the county of Clare for stating that this man was worthy of belief in everything he had stated. He was a tenant of Sir Lucius O'Brien, and rented under him eighty acres. This man said he heard the army was coming in, and he went into the lane and sat on the top of the lane. Many people were sitting on the wall, and some were standing against it. This witness was speaking of the front of the escort, where the firing took place; it was not denied that there was rioting and tumult at the rear, where no firing took place. The witness said, "There was no intention to make an attack on the soldiers, but every fool came to see them like myself." He said a man named Casey, who was leaning against the wall and between his legs, was shot dead. He used no stick 352 or stone, or witness would have seen it, and there was no provocation to shoot him. He heard some one cry out, "Fire, front and rear;" and that cry had already been brought home to Mr. Delmege. He observed the noble Lord opposite (Lord A. Vane) smiling; he could assure him there was nothing here to smile at. Blood had been shed, and remained unanswered for, and there was nothing to smile at in that. If they would not treat this as a constitutional question, at least he hoped they would not treat it with levity. It would be better to treat it in the sanctimonious tone of the right hon. and learned Gentleman the late Attorney General for Ireland, than with levity. He had read to the House the evidence of what took place in the lane; let him now state to the House what took place outside the lane. As soon as the shots were fired, the people fled in all directions, and these orderly soldiers, who it was said were entitled to the commendation of this House for their discipline and forbearance, rushed after them in pursuit, and, as it was proved in evidence, fired, and loaded and fired again. On this subject he would quote the evidence of Mr. Pearce, who, he believed, was a magistrate, and whose evidence would be received with the greater weight by hon. Gentlemen opposite, because he voted for Colonel Vandeleur, the Tory candidate. He said—I was in the Court-house when I heard some shots fired. Before I heard these shots all was peaceable and quiet. I looked out of the Courthouse windows, when I saw three soldiers rush out of the lane and fire down the street. They rushed out in a disorderly and tumultuous manner. The people were flying in all directions.The only other witness he would quote was a police constable, who was on guard at the door of the police barrack. He said—My attention was directed to the lane. I saw fourteen or fifteen persons run out of it. The military rushed out after them in a confused manner—[that he supposed was discipline]—a yard or two behind the people. The principal rush was towards the Court-house. The military halted in the centre of the street, and fired. One of their shots struck the door of the barrack, about an inch from my neck. Another policeman was standing near me—the shot must have passed between us. I turned to go into the barrack, when a man named Michael Maloney ran down the street, stumbled and fell, and cried out that he was shot. I assisted him in, and while doing so, I heard another shot strike the roof, and another struck the ground and rebounded against the window.Now he did not wish the House to believe that there was not conflicting evidence, nor did he ask them to come to the con- 353 clusion that the soldiers were guilty. All he asked them to believe was, that this was a case which demanded investigation. Another class of persons had been mentioned, and but for their names being introduced he believed they would not have heard of this case to-night at all. The right hon. and learned Gentleman (Mr. Napier) bad adverted to the case of the Rev. Mr. Bourke. That gentleman was the parish priest of the neighbouring parish, some of whose parishioners happened to be voters. He had the pleasure of knowing that rev. gentleman, who was known also to the hon. Gentleman the late Secretary to the Admiralty (Mr. Stafford), and he would confidently appeal to him to say whether the course which the rev. gentleman had pursued up to the time of this transaction was not one of peace, quiet, and order. He admitted that the rev. gentleman upon the occasion in question made use of language which he (Mr. Fitzgerald) could not for a moment defend. It must be admitted that Mr. Bourke had forgotten his character as a minister of Christ's Gospel, and made use of expressions which no one regretted more than the rev. gentleman himself; but it must also be added in fairness, that Mr. Bourke denied on his oath several of the statements attributed to him by the military officers. Well, Mr. Bourke saw his own parishioners brought in, guarded by military, with a partisan magistrate at their head, and knowing that his parishioners, if left to the dictates of their conscience, would vote the contrary way to that in which they were about to vote, he demanded, as a right, that he might communicate with them; and what law was there to prevent a priest from expostulating with and advising his parishioners? He broke the line of soldiers, and perhaps, so far he was wrong; but his real offence was, that he advised his parishioners not to vote against their consciences. He was charged with inciting the people to riot; but it appeared on the face of the depositions that Mr. Delmege himself had stated that Mr. Bourke had been helping him to keep the peace. A cross prosecution, however, had been got up against the rev. gentleman, with the view of nullifying his testimony as a witness on the trial of the soldiers; but he would ask the right hon. and learned Gentleman whether a prosecution had ever been instituted against a witness while the capital charge was still undisposed of? He had called 354 attention to portions of the evidence, not to criminate the soldiers, but to show that there was a grave and serious case for an inquiry, and that it was the duty of the Attorney General, whose sole province it was to set such inquiries on foot, to do so, but that he had not done it. The right hon. and learned Gentleman said that he sent down the Crown Solicitor to watch the case; but he ought to have sent him down to investigate it. He (Mr. Fitzgerald) went further, and asserted that the Crown Solicitor was sent down to assist the soldiers. That charge was made in a memorial addressed to the Lord Lieutenant, and it had not been denied to that day. The great obstruction to the administration of justice in this case was caused by the military authorities. It might have been expected that they would have admitted that the soldiers had fired, and relied upon proving that they fired in self-defence. But that was not the case, and there was not a piece of chicanery that a quarter sessions' attorney could resort to in order to defeat the course of justice, which the military authorities did not avail themselves of. Captain Eagar made no examination among his men as to who had fired, and the case failed from the absence of the regular evidence of identity. He (Mr. Fitzgerald) charged the paid servants of the Crown with having adopted every expedient to defeat the course of justice. There were seventeen men upon the jury, who came unanimously to the conclusion that the soldiers were guilty of manslaughter; and twelve of them were ready to vote for a verdict of wilful murder. He contended that where there had been such a finding, by a constitutional tribunal, it was the duty of the Attorney General to proceed upon it, and not to set up his own judgment against that of the jury. The right hon. and learned Gentleman could not say that no crime had been committed; but it was contended that there was no evidence against the particular soldiers who fired the particular shots. It was ascertained, however, by examining their muskets, that ten soldiers had fired, but there was a difficulty in ascertaining who had fired in the lane, and who had fired in the street. The right hon. and learned Gentleman had a little glorified himself upon the admission of the soldiers to bail; but it was a matter of course for a Judge to admit to bail when the Crown did not object, and the right hon. and learned Gentleman not only did not object, but 355 even sent his official, known as the Castle counsel, to request that they might be admitted to bail. The next step which the right hon. and learned Gentleman took, was to direct informations to be sworn against two priests, and some of the rioters. The stipendiary magistrate at first refused to take the informations, stating that be could not receive them until the capital charge had been disposed of; but a mandate came down from Dublin Castle, directing him to take them, and these were the examinations which the right hon. and learned Gentleman had read to the House, though they had never been sworn in a court of justice, nor exposed to the test of a cross-examination; and yet it was on the authority of these examinations that the right hon. and learned Gentleman stated he did not believe the testimony of the witnesses at the coroner's inquisition. This took place in July: November came, and what course did the right hon. and learned Gentleman take then? He might have abandoned the prosecution against the soldiers, because in Ireland no one could interfere with the Attorney General in regard to criminal prosecutions. In that respect the practice in Ireland was superior to that of England. In Ireland the Attorney General was the public prosecutor, and was responsible to the public; and he might have abandoned the prosecution; but what did he do? He applied to the Court of Queen's Bench to quash the verdict of the coroner's jury against the soldiers—a verdict which he characterised as monstrous and absurd, and praised the conduct of the soldiers, and said it was meritorious. But that tribunal thought differently. The Court, after searching for precedents, and consulting the English Judges—a much better course than getting an opinion on ex-parte statement from Mr. Justice Patteson—refused the application. In his (Mr. Fitzgerald's) humble judgment, every word which the right hon. and learned Gentleman had read from the opinion of the Court, was a reproach to the right hon. and learned Gentleman himself, and showed that he had taken a course which was wholly unprecedented, and from which there was an entire absence of impartiality. It had been made a matter of charge against the present Attorney General for Ireland of having proceeded with the prosecution against the soldiers; and after what he had heard from the right hon. and learned Gentleman, he was not surprised that there were persons who thought the conduct of 356 the military at Six-mile Bridge was worthy of commendation. All he could say was that he neither envied the feelings nor the judgment of such persons. The right hon. and learned Gentleman, however, did all he could for the moderate and temperate men who slaughtered seven unarmed persons; and before he left office he obtained a verdict against a provincial journal, for a libel on the soldiers. The present Attorney General, after the finding of the coroner's jury, and the refusal of the Queen's Bench to interfere, had no course left open to him but to send the case for trial. If he bad not done so, he (Mr. Fitzgerald), as an independent Member of that House, would have brought the matter forward. The fairest and the most lenient course was taken of sending the case before the ordinary grand jury. It, however, was said that the present Attorney General had adopted an unfair course in another particular, and had placed upon the back of the indictment against the soldiers the names of the Rev. Mr. Bourke and Mr. Magrath as witnesses. Why, those persons had been witnesses on the previous investigation before the coroner, and it was the uniform rule to endorse the names of all such witnesses on the indictment; consequently, he endorsed the name of every witness who had been produced before the coroner. Those witnesses went before the grand jury, the indictment was ignored, and the soldiers were acquitted. But let not the right hon. and learned Gentleman glorify himself on that account, because he (Mr. Fitzgerald) was prepared to tell the House why it was that they were acquitted. He had before him a copy of the address of the Judge to the grand jury on that occasion. He alluded to Judge Perrin, and he begged to say, and he did it confidently, that neither in England, in Scotland, nor in Ireland, did there exist an abler constitutional lawyer than Judge Perrin. No one had more experience of him than the right hon. and learned Gentleman, and he believed there was no one who would venture to say that there was, at the present day, a sounder lawyer than that learned Judge. What did the learned Judge tell the grand jury in reference to the soldiers? He said, that even if they found that the soldiers had fired, and that life had been taken away, it would still be their duty to inquire with respect to the parties, and to identify and particularise the individuals if they could. But, from the circumstances of the case, and from the obstructions 357 given to the course of justice by the military authorities, to identify and particularise the individuals who fired was impossible. He had therefore the authority of the Judge's charge that if the soldiers could have been identified they would have been found guilty, not perhaps of murder—for great allowances were made for provocation on such occasions as election riots—but of manslaughter. No one could doubt that if the soldiers could have been identified, a conviction would have taken place. Well, the grand jury ignored the bills. Strange things took place in Ireland, and perhaps the strangest was that which he was about to mention. He had called the attention of the House to the fact of Mr. Delmege, a magistrate, having been seen with a pistol in his band, and to his having actually discharged it. Well, Mr. Delmege was one of the persons to be prosecuted, and what did the House suppose was done? A subscription was got up among the country gentlemen at the suggestion of a magistrate of the county of Clare; a committee of influential magistrates was formed in Dublin, for whom Pierse Creagh acted as honorary secretary, by whom circulars were sent to the magistracy of the country with a request that their subscriptions should be paid into the branches of the Provincial Bank of Ireland, to the credit of Crofton Moore Vandeleur, Esq., of Kilrush. These subscriptions were to defray the expenses of the defence of Mr. Delmege. Would the House believe that the third name on the grand jury list who ignored these indictments was Crofton Moore Vandeleur? This, of course, might be accidental, and the grand jury might have been impartial, but it was a circumstance worth noticing. In reference, however, to the course pursued by the present Attorney General in regard to not proceeding against the priests, he (Mr. Fitzgerald) could only say that, acting according to the best of his judgment as a lawyer, if the Attorney General had consulted him previously, he should have told that right hon. and learned Gentleman that the course he was about to pursue, was a wise, just, and politic course. The Attorney General very properly said he would not be a party to such a proceeding as that of indicting the Rev. Mr. Bourke at the very time that he was a witness upon a capital charge against others. It would have been dangerous to the impartial administration of justice if Mr. Bourke had been brought before the same grand jury to whom he had recently 358 given evidence in a charge of murder against others. There was something to be said in mitigation of cases of this description, occurring as they did at contested elections. They all knew that wherever a contested election took place, riots invariably accompanied them. It was the case even in this happy country. He had not come unprepared with documents to prove his statement. He had a report of the Oldham election, and he should say that he would be deserving of censure if he did not show that there was more rioting at that election than there was at Six-mile Bridge. Mr. Heald and Mr. Fox (who was now the sitting Member) were the candidates. Mr. Heald appeared to be the popular candidate. ["No, no!"] At all events he came with 10,000 supporters to the hustings. The Healdites would not let the Foxites appear at all. A serious riot took place, and a troop of Dragoons was called in, when the mob surrounded the soldiers and threw large paving-stones at them. The Dragoons charged, and many persons were thrown down and trampled on, but the soldiers used only the flats of their swords. In that case, now, the soldiers exhibited forbearance and discipline. The fact was John Bull would not bear being shot at. At another English election—that for West Gloucestershire—alarming riots occurred, much damage was done to persons and property, and the Riot Act was read three times. At Six-mile Bridge the Riot Act was not read at all. Now, he admitted, that when men became soldiers thoy did not lose the rights of citizens; but, on the other hand, they acquired no greater rights than were enjoyed by other citizens—they were bound by the same laws and subject to the same liabilities. It was unnecessary to discuss the question whether the soldiers were justified in acting under orders, because no orders were given; but if that question had been raised, he would have maintained that a soldier was justified in acting under the orders of his officer only as far as those orders were legal. A soldier, in the performance of a legal duty, might use weapons in actual defence; he might even take human life, but only under circumstances which would justify any other individual in doing so. A soldier, however, when engaged in suppressing a riot, had no right to take human life unless in endeavouring to execute his duty his own life should be placed in danger. This was the view taken by Lord Mans- 359 field, when speaking in the House of Lords on the subject of Lord George Gordon's riots. On that occasion his Lordship said that the military engaged in suppressing the riots were to be regarded merely as private individuals, and if they exceeded their power were liable to be tried and punished, not by martial law, but by the common law of the country. The statement of law given by Judge Perrin in his charge to the grand jury was coincident with the opinion expressed by Lord Mansfield. The question to be determined was, whether the lives of the soldiers were in danger? If not, they were guilty of manslaughter. He must acknowledge that the coroner's jury would have acted more wisely, and with more regard to the evidence brought before them, if they had returned a verdict similar to that given by the Limerick jury. On the other hand, it could not be denied that none of the directions given in the Queen's regulations were observed by the soldiers, The regulations prescribed that when military were employed in the suppression of riots they should be accompanied by a magistrate—that the troops should not fire except by command of their officer, and that he should not give the command unless distinctly required to do so by the magistrate—that the firing should cease the instant it should be no longer necessary, whether the magistrate should order its cessation or not, and that care should be taken not to fire on persons separated from the crowd. At Six-mile Bridge the military acted in open violation of all these wise provisions. No officer ordered them to fire, and they pursued the flying crowd to slay them. There was evidence to show that a man was stabbed by three soldiers when he had fallen. He thought it was a case that deserved to be investigated; and that he should wish to be so on the terms that the conduct of every one who took part in it should be examined. If that were the object of the right hon. and learned Gentleman, the right hon. and learned Gentleman had adopted a singular mode of attaining it. He had moved for documents which were, or might be, in the possession of every one, which the Crown had got no more than individuals. Was it his bonâ fide object to ask for these documents, and when they were in the hands of Members, then to come forward, if he dared, with a Resolution of censure on the parties concerned, or to ask for a Committee; or was it his intention to make a statement 360 which he thought might be an assault on the present Government, and might at the same time set his own conduct in favourable contradistinction to that of the right hon. and learned Gentleman who succeeded him? He (Mr. Fitzgerald) never would shrink from investigation—still he thought the sooner they forgot this case the better. They could do nothing by inquiry—they could not remedy the loss whch had been sustained—they could not restore the husband to the widow, nor the father to the orphaned child. In his judgment, then, the course pursued by the right hon. and learned Gentleman the present Attorney General for Ireland was wise, was just, was politic; whilst the course which had been adopted—which, under pretence of impartiality, would take up only one part—was the contrary. It was merely the unwillingness to prosecute the soldiers that he spoke of; he never heard of any assistance or facility offered by the right hon. and learned Gentleman (Mr. Napier) to the widows of the slaughtered men. The right hon. and learned Gentleman, in bringing this transaction before the House, had thought fit to select for his purpose the evening of the patron saint of Ireland, when they were all to have met at the festive board of the only Irish institution in London. He had selected that day for bringing an Irish row before the House. Thanking the House for having granted him so much of its attention, he would conclude by observing that if anything like a feeling of acerbity, should, unfortunately, have infused itself into the discussion, the late Solicitor General for Ireland, who seemed about to address the House, would, doubtless, pour oil on the troubled waters.
§ MR. CAIRNS
said, that in the absence from that House both of the Attorney and Solicitor General for Ireland it was of some advantage that the hon. and learned Gentleman who had just sat down had undertaken to give them an account of the proceedings which had taken place with reference to the question which was now brought under their notice. He (Mr. Cairns) had, however, listened with some surprise to the speech of the hon. and learned Gentleman. Not the least astonishing of the circumstances in his opinion which had occurred with respect to the affair at Six-mile Bridge was, the statement which the Attorney General had made to the jury, that though he had in the conduct of the prosecution of the sol- 361 diers the assistance of two or three very eminent counsel, and, among the rest, the hon. and learned Member for Ennis, yet that he (the Attorney General) had from the first withheld from those counsel all knowledge of the course which in that matter be had deemed it advisable to pursue.
MR. J. D. FITZGERALD
said, he must beg to explain that the right hon. and learned Attorney General for Ireland had not his assistance upon the occasion to which the hon. Member referred. Had the prosecution gone on, he would have taken a part.
§ MR. CAIRNS
Just so. The hon. and learned Gentleman was certainly associated with the Attorney General for Ireland upon that occasion; and he (Mr. Cairns) confessed that he was somewhat surprised at the intelligence and devotion which the hon. and learned Gentleman had manifested in explaining a course which had been pursued without his advice, and in taking upon himself a share of a responsibility with which he had never been entrusted. He (Mr. Cairns) did not, however, think that the Attorney General for Ireland had been laid under very deep obligation to the hon. and learned Gentleman for the line of defence which he had adopted. The whole argument seemed to turn on this—that if you examined the circumstances, the soldiers who had fired were not justified; but the Attorney General had told the jury he was as satisfied as man could be that every soldier who fired in the lane was fully justified, and that a jury could do nothing but acquit them. What did the grand jury say? The hon. and learned Gentleman (Mr. Fitzgerald) had read the evidence sworn to at a petty corroner's inquest, and had said it conclusively proved that there was no justification whatever. Did that go before the grand jury? And if not, why not? If it did, they exercised their judgment upon it; if it did not, then the question was, why did not the Attorney General for Ireland send it up? He was entitled to the benefit of the grand jury's decision; and if such evidence as that now quoted was not before them, it was the Attorney General for Ireland, and the Attorney General for Ireland alone, who was in fault. But the hon. and learned Member for Ennis said the grand jury ignored the bills against the soldiers merely for want of technical evidence of identity. He (Mr. Cairns) had never served on a grand 362 jury; but he had always understood that that body took an oath not to divulge anything which might come before them. He, therefore, asked the hon. and learned Member for Ennis how he knew the grounds on which the grand jury acted? Was it on conjecture? At all events, he appealed to the words used by the Attorney General—namely, that he thought the grand jury were right in ignoring the bills. The hon. and learned Member for Ennis had gone into a legal discussion, through which he (Mr. Cairns) would not follow him; but he confessed to feeling disappointment that the hon. and learned Member for Ennis, who had been present at the trial, was not prepared to say that the charge of the learned Judge bad been wholly misrepresented in the newspapers. The hon. and learned Member not only did not deny the charge, but stated that the charge was correctly reported. Although the House of Commons could not sit as a House of Appeal to overthrow the decision of a Judge, it still was their province to ascertain whether the statement of the law by the learned Judge was accurate or not; and if not accurate, to see that the law should be rectified. If the law were such as it was laid down by the learned Judge, he contended that it ought not to be allowed to remain for the space of twenty-four hours. This matter intimately concerned the position of the military force in this country. He believed that the Judge's charge had thrown great discouragement and difficulty in the way of the military acting with the civil power. The doctrine laid down by Judge Perrin, of whom he wished to speak with all respect, was, that where soldiers were called out to assist the civil power—called out because the possession of arms made them an efficient aid—they were to suffer themselves to be battered with stones, to be covered with brickbats, and have their arms taken away from them, without acting in self-defence. Nay, they were to permit an escort committed to their charge to be taken from them, and perhaps thrown into a river, without so acting; but if by any sort of intuition of medical skill such soldiers could determine the exact point at which their lives were in peril from the crowd, and also be satisfied that they would be able to assure the jury of it afterwards, they might fire, but not otherwise. Now, with regard to another point that had been mooted. He was not about to enter into any discussion as to whe- 363 ther landlords in Ireland did or did not exercise power over voters; but the question in this case was, had the executive power been well administered, and was the law laid down correctly pronounced? The law upon such a subject, he contended, ought to be so clear that those who ran could read and understand it. He thought that up to the present time the law on the subject had been considered clear. Books had been published for the use of the military, containing statements of the law, with cases illustrating it. One of these was a somewhat analogous case which occurred about a century ago in Scotland. It appeared that a boat containing two or three soldiers and an officer was sent out into the Frith of Forth to protect revenue officers in effecting some seizure. As the boat was proceeding on its way, another boat came up containing some abettors of the smugglers. These men had no arms, but they attacked the boat containing the soldiers, from whom they endeavoured to wrest their weapons, with. out attempting or designing any other injury. In the struggle one of the attacking party was killed, and a jury found the soldiers guilty of murder. The case, however, was taken before the Court of Justiciary, and it was there determined that the soldiers were justified in the part they had taken. Mr. Forbes, afterwards the Lord President of the Court of Session, said upon that occasion—When a man has weapons put into his hands, not only for the support of life, but for the execution of the law, he may use those weapons not only when his life is in danger, but also if he is in imminent peril of having his arms taken away from him, which would prevent him from executing his trust.Now, in the present case the soldiers were in danger of their lives. Another case, however, had occurred some twenty years ago in this metropolis, which illustrated this argument. During a time of political excitement a mob came over Westminster Bridge, proceeded along Parliament-street, and finally ranged themselves about Downing-street. The mob showed symptoms of wishing to take possession of one of the houses in that street, which contained at that time persons not very popular. A sentry was on the spot watching the house, who would certainly have been in some doubt how to act if he had heard Judge Perrin's law. It would be easy to imagine the learned Judge advising the sentry somewhat after the fashion—"These people 364 are not likely to harm you. They are not aiming at your life. You may make prisoners. You may repel by force such force as they use against you. If they jostle you, you may jostle them, but you are a peaceable citizen, and if you go further I must tell you you will be hung, or at all events transported." These legal notions did not appear to have had much weight with the sentry, who was animated with that unswerving sense of duty and that undaunted courage which characterise the British soldier. This soldier presented his musket to the crowd, and told the crowd that if they approached one step nearer the house he was defending, he would fire upon them. The mob did not accept the sentry's challenge. But what was the consequence to the sentry? Why, this man, who, according to Judge Perrin's doctrine, had threatened to commit manslaughter, or perhaps murder, was made a corporal on the spot, received the unqualified approbation of the Duke of Wellington, and subsequently was made a warder of the Tower, where he died. His name was Jackson. However estimable and learned a person might be Mr. Justice Perrin, it ought to be known that there were doubts whether his law on this point was the law of the country. He (Mr. Cairns) would now refer to the proceedings of the Attorney General for Ireland, and ask the House whether they considered the honour and dignity of the law had been maintained by them? He wished to deal with perfect fairness towards the Attorney General on this point, and he would not repeat the charges made against that Gentleman for indicting the soldiers; but he must nevertheless say that he did not think the soldiers should have been indicted unless it was intended to prosecute them. If indicted, the matter ought to have been brought before a jury, and the indictments thus launched forth proceeded with. It was a matter of public interest that the Attorney General should prosecute these soldiers; it was equally a matter of interest that they should be dealt with fairly; and if the Irish Government subscribed money on behalf of the relatives of the deceased, they should also have taken care that the soldiers were provided with money for their defence. The public were as much interested in seeing that the military received proper assistance in the discharge of their duties, as that they did not improperly or unfairly use the arms put into their hands. In his humble opinion it was unworthy on the part of the Irish Go- 365 vernment to leave these soldiers ignorant to the last moment whether the prosecution was to be real or formal, whether they would have the assistance of counsel or not, and at the same time to bring a whole array of Crown counsel against them. If private individuals, then, subscribed money for these soldiers' defence, they were not appearing as partisans, but simply doing that which the Government should have done for them. The indictments having been thrown out by the grand jury, why was the matter not allowed to drop? Instead of that being the case, the soldiers were marched through the town, amid the gaze of an infuriated populace. The Attorney General for Ireland appeared to have empannelled a jury simply that he might have the opportunity of making a speech. Now, as that speech was intended for the public at large, he (Mr. Cairns) would refer to it. The right hon. and learned Gentleman justified his conduct on three points. First, he replied to the charge as to the course he had adopted with regard to the soldiers. He said he had weighed the evidence taken before the grand jury, and had come to the conclusion that the soldiers were guiltless; but, not satisfied with that, the Attorney General proceeded to explain his motives for proceeding with the investigation. The Attorney General stated that it was a popular fallacy to say that an indictment ought not to be proceeded with if the Attorney General believed parties to be not guilty. The proper course, he said, was to direct an inquiry before a competent tribunal. In this opinion he (Mr. Cairns) concurred. But then the inquiry ought to be conducted in a fair manner. Was it fair, he asked, to proceed with the inquiry without putting the names of the officers on the back of the bills, thus excluding the testimony of those who best knew what the conduct of the soldiers had been? The grand jury sent for the officers, whom the Attorney General omitted to call. The Attorney General empannelled a jury to try a soldier of the name of Gleeson; but instead of confining his remarks to that particular case, he branched out into an attack upon Mr. Delmege, a gentleman who held a commission in the peace, and was a man of property. The Attorney General threw out imputations against Mr. Delmege, without reflecting that that gentleman would have to return to the heart of that population with whom he was unpopular, or who, at all events, thought they had grounds of com- 366 plaint against him. Although Mr. Delmege was attacked, he had no power of reply—for if he had opened his mouth he would have been turned out of court—and the Attorney General stated circumstances which that gentleman had no opportunity of rebutting. Mr. Delmege was described by that right hon. and learned Gentleman as "not being remarkable for anything except incompetency and inexperience," adding, that "as a magistrate, it was his duty to have been near the troops the whole time, but that he kept out of danger." Was it fair, he (Mr. Cairns) asked, thus to accuse a gentleman of pusillanimity and cowardice, without giving a right of reply? He must denounce the course pursued by the Attorney General as irregular, unprecedented, and unfair. An incident which had occurred the other night in the House of Commons strangely contrasted with the course pursued against Mr. Delmege by the Attorney General. Upon a mere Motion for the adjournment of the House, the hon. Member for Manchester (Mr. Bright) made a very aggressive statement against the Government on the subject of their Indian policy. But the noble Lord the Member for the City of London rose, and in reply characterised the remarks of the hon. Member, to say the least of them, as "unreasonable." The Government were able to defend themselves—Mr. Delmege was denied that advantage. The engagement with Mr. Delmege was that described by the Satirist—Tu pulsas, ego vapulo tantum.The third topic of the Attorney General was as to the Roman Catholic clergymen. He would not express any opinion as to the course pursued by the Attorney General with regard to the Roman Catholic clergymen. He would not say whether they were guilty or not. They might have been the most innocent or the most culpable persons in the world; his business was with the Attorney General for Ireland, not with these clergymen. Now, the right hon. and learned Attorney General had assigned three reasons for not prosecuting in the case of the priests—a very clear proof, in his (Mr. Cairns') opinion, that no one of them was a good one. First, he said he had looked into the evidence, and with regard to one of the priests there was no evidence to go before a jury; and with regard to another, although there was evidence to go before a jury, still it seemed to him (the Attorney General) that his intentions were not wrong, 367 and, therefore, he came to the conclusion that the rev. gentleman ought not to be prosecuted. Now, while he was willing to make every concession to the right of the Crown to exercise a discretionary power as to whether or not an indictment should be sent up to the grand jury; he must ask, how was this discretion manifested in the conduct pursued towards the soldiers? The right hon. and learned Gentleman stated, that with regard to the soldiers, also, he bad looked into the evidence against them, and he had also in their case come to the conclusion that there was no evidence on which a jury in this country could found a verdict of guilty. Well, in the very face of that conclusion he sends up an indictment against the soldiers, but in that of the priests he withdraws one. Let him then, therefore, appeal to the House: if, in this case, the quality of mercy was not strained, at all events the quantity was most unevenly administered. The second reason, however, assigned for the non-prosecution of the priests was, that the name of one of them had been put on the back of the bill sent up by the grand jury. Now suppose that this was a good reason; it remained to be asked, who was it that inscribed that name upon the back of the indictment? Why, it was the public prosecutor—the right hon. and learned Attorney General for Ireland. That right hon. and learned Gentleman on one day put on the back of the bill of indictment the name of a witness who could tell the grand jury nothing; and the next day, he turned round and said, "Here I have got the name of a person on the back of an indictment, whom I might otherwise be able to prosecute." Surely, if the right bon. and learned Gentleman was subsequently sensible of his mistake, he had no one to blame for it but himself. But now he came to the most extraordinary of all the reasons assigned by the Attorney General for not prosecuting the priests, namely, that he had ascertained that one of them was exceedingly sorry for what he had done. No doubt that was in itself a very valuable circumstance; but what then became of the statement of the Attorney General, that he had looked into the evidence, and that he found the priests had done nothing? Why, what was the gentleman to be sorry for? It struck him, he was free to confess, that the right hon. and learned Attorney General must have been very much puzzled to know what the rev. gentleman had to be sorry for. Why, had he not 368 come to the determination that there was not a shadow of evidence against the priests? But another observation occurred upon this statement. Certainly as far as his (Mr. Cairns') experience went, he never remembered an instance where the Attorney General in England or Ireland, having come forward as a public prosecutor, related to the Court—without putting a prisoner upon his trial—that he had ascertained beforehand, from a private confession, that the guilty party was sorry for what he had done, and that, therefore, he would not be put upon his trial. Now he would be the very last man to impugn, or in any way to detract from, the exercise of the high prerogative of mercy; and, therefore, if in this case the rev. gentleman had been brought forward, and having been put upon his trial, without any evidence having been gone into—if he had come forward and said that he believed lie had acted with great imprudence, considering the position which a Roman Catholic clergyman held—his position as regarded his flock, and the country at large, he (Mr. Cairns) would perhaps think ho had been amply humiliated by that acknowledgment, and that it would have been a highly proper course for the Attorney General not to carry the prosecution further. But why was the Attorney General to put forth facts which had come to his knowledge as to the penitent and sorrowful feelings of an individual as a reason for not prosecuting in a case like that? Why were the priests to be shrived privately by the Attorney General, while, in the case of a common offender, be would be made to acknowledge his guilt before a Judge and jury? He would ask the House to look at the matter fairly and dispassionately, apart from that mass of extraneous matter which had been brought on the carpet by the hon. and learned Member for Ennis (Mr. J. D. Fitzgerald). Now, was there any one in that House who had not observed the ridicule and the mockery which had been cast upon the whole of the proceedings connected with this case in every part of the country? Why, he would be bound there was not a peasant in the county of Clare who did not believe that in this case the Government were afraid to put the priests upon their trial—that there was not a peasant in Clare who did not believe that if the soldiers had been treated as the charge of the Judge required, they would have been found guilty, and that they were 369 withdrawn from the ordeal of a trial simply to make way for a similar withdrawal with respect to the priests. Yes, they believed that it was a compromise to let off the Roman Catholic clergymen. Now, was that a fair and impartial way in which to administer the law? Why, had not the head of the Government been heard to make a sort of prospective announcement, worthy the entire acceptance and satisfaction of every one? Had not the noble Lord (the Earl of Aberdeen) said—He made no distinction between soldiers and priests. All he wished to state to their Lordships was this: that as long as he had anything to do with the Government of Ireland, he would undertake that, without any exception, either in the case of soldier or of priest, of peasant or of Peer, justice should be administered to all. The bills against the priests would therefore be proceeded with just in the same way as the bills against the soldiers."— [3 Hansard, cxxiv. 341.]That, undoubtedly, was an admirable course to lay down. But, he would ask, had it been followed? Why, after the declaration of the noble Lord had been published in Ireland, his Attorney General came forward and said that no bills were to be sent up against the priests. Now, let the House bear in mind that, unhappily, there had been, if not au unusual—at all events, a very great—degree of disturbance at the last general election in Ireland, and that it had become the fashion to say that something should be done to prevent the recurrence of such disturbances; while, on the other hand, there were those who said that the existing powers of the law ought to be first tried before invoking fresh strength. The House, however, might depend upon it that the course which had been followed in this case would be treasured by the people of Ireland, and recorded as a precedent for future times. It was, then, with the utmost astonishment that he heard what fell from the right hon. Baronet the Secretary for Ireland (Sir J. Young) the other night when speaking of the riots which had taken place at this election. That right hon. Gentleman said, in alluding to the course of the late elections, that in several counties of Ireland, gentlemen had stood against the popular candidates without the least prospect of success, except by resorting to unconstitutional means; and that they were morally responsible for everything which had taken place. Now, were Her Majesty's Government ready to endorse that statement? Why, he (Mr. Cairns) 370 had always thought that the object of an election was to ascertain which was the popular candidate. It now appeared, however, according to the right hon. Baronet, that they were to go through some sort of mental system of polling—or, perhaps, to inquire at the Chief Secretary's Office who was the popular candidate, and having ascertained that, woe to the man who should put himself in competition with such an elected one! Now, it was most important to know whether Her Majesty's Government thought that this was a fit doctrine to be promulgated. It had been the practice in that House to talk about Ireland as the chief Ministerial difficulty, and perhaps there was much truth in that statement. But he really thought that they had made it a difficulty for themselves by invariably inclining either to one or the other of the parties by which that country was divided. Why, there was not a nation in Christendom so acute, intelligent, and observant of all legal matters, and understanding them well, too, such as the Irish people, that could witness such vacillation, such weakness, such a readiness to give way upon the part of the Executive, without failing to take advantage of it. There was a traveller in Ireland, who, 250 years ago, held an official position—he alluded to Sir John Davis, Attorney General in the reign of James I.: writing in 1607, he said—There is no people under the sun that doth better like indifferent justice, and will rest better satisfied with the execution of the law, though it be against themselves, so that they may have the protection and benefit of the law when they deserve it.He said he knew that that passage had been criticised, but the practice it recommended was one which had seldom been tried. He had hoped that, with other obsolete politics, we had got rid of this old policy of governing Ireland for a party. He was even willing to believe that Her Majesty's Government desired to prevent a return to this obsolete policy, and to admit that the words propounded by the Earl of Aberdeen indicated the real wishes and intentions of Government. But if these were their wishes and intentions, he must say that those wishes and intentions had been marred—miserably thwarted and marred—by the occurrences which were the subject of the present Motion.
§ SIR JOHN YOUNG
said, he hoped to be able to show that in this case the law had been fairly and honestly and impartially administered by the Irish Govern- 371 ment. He only wished he had the legal knowledge to enable him to do justice to his Friend the Attorney General for Ireland, and it was only for that purpose that he now rose to claim the indulgence of the House. The hon. and learned Gentleman who had last spoken, he was bound to say, had misquoted and misinterpreted the expressions employed by his right hon. and learned Friend with reference to Mr. Delmege. The Attorney General had not described him as being incompetent, but had merely spoken with regret of the troops being under the orders of so inexperienced a person. Now, he did not know that inexperience was a fault; but it certainly was a matter of deep regret that the party happened, at the time of the disturbance, to be so inefficiently commanded. At the moment of peril—the crisis of peril—where was the magistrate? Certainly where he might have been properly expected to be, he was not. As a person engaged in directing to some extent the operations of the Executive Government, he must say he should not think he did his duty if he placed the military in so anomalous a position as they appeared to have been placed in on this occasion. If at any time he had occasion to call for their services, he would take care that they were in sufficient numbers to render attack hopeless and impossible. The charges brought forward on the present occasion might be stated under three heads. The first was, that the soldiers were put on trial; second, that the prosecution of the priests and rioters, as they were called, was not proceeded with; and, third, an attempt to show some discrepancies of opinion between what was stated in the House of Lords and what the Attorney General said at the assizes. Before entering upon these points, he must advert to what the hon. and learned Gentleman opposite (Mr. Cairns) had quoted as part of a speech delivered by him in that House. He represented him (Sir J. Young) as stating that the parties who stood against the popular candidates were responsible for all the outrages that took place. That was not what he had said: he had not used the word "popular," nor did he apply his observation to one party more than another. What he said was, that when persons engaged in party elections without any hope of success, they were morally responsible for all the evils that arose. That opinion he adhered to. It was analogous to the case of persons re- 372 belling even against tyranny when there was no hope of success. When there was no chance of success, parties had no right to disturb the peace of the country; and in saying this, he did not speak of one party more than another: in such cases, surely the stirring up of strife was a vexatious proceeding—though, looking to how serious and sad the sequel might be, it could scarcely, in formal phrase, be termed frivolous. The late elections caused great excitement in Ireland; and in the instance now under discussion it appeared that the soldiers were brought into a lane, where they were placed in circumstances of great disadvantage. No doubt the evidence was contradictory and unsatisfactory; but there was small room to question but that this terrible affray took place without premeditation. The coroner's jury found a verdict of "murder" against the magistrate and the soldiers; but why, after this verdict, did the late Attorney General not put forth the power of the Crown to stop the prosecution? That point he had not satisfactorily explained; and the truth he believed to be that he felt the coroner's verdict a great difficulty in his way. Why did ho take the case to the Court of Queen's Bench if he felt no difficulty? The right hon. and learned Gentleman said, the Court of Queen's Bench decided the question on a mere technicality, and pronounced no judgment on the case; but that was a statement which he was inclined to call in question. The Court of Queen's Bench in Ireland had manifestly acted in the manner which it deemed consistent with the due administration of law and the interests of public justice. And with these objects in view, the Court refused to quash the verdict, not on a mere technicality, but because, as the Chief Justice emphatically remarked, it was impossible for the Court to judge of the sufficiency or insufficiency of the evidence without having the advantage of observing the demeanour of the witnesses, often the best test of their credit. In effect, the decision of the Court—the highest authority in the land—was, that the attempt to quash the verdict was an ill-advised and rash move—nowise warranted on the part of the late law officers, who had not seen the witnesses, nor examined them personally, and who could, therefore, have no accurate opinion or measure of the weight to be attached to each man's testimony, and who had ventured upon an unfrequent, and, indeed, 373 unprecedented course without any such accurate investigation. The judgment of the Court of Queen's Bench was given on no technical grounds, but on a full consideration of all the bearings of the case, and of its effect on the general interests and the administration of justice; and a severer condemnation than their decision was, could not have been pronounced upon the hon. and learned Gentlemen opposite. At the stage of the proceedings which he had now reached, the right hon. and learned Gentleman opposite (Mr. Napier) went out of office, and his right hon. and learned Friend (Mr. Brewster) became Attorney General for Ireland. The whole case was less a charge against the Government, than a comparison between the opinions and views of these two law officers of the Crown. The present Attorney General, on coming into the conduct of the case, found the verdict of the coroner's jury existing, confirmed by the unanimous decision of one of the highest tribunals of the land. Whatever the difficulties of the right hon. and learned Gentleman opposite, which, when he was Attorney General, induced him not to interpose with a nolle prosequi, those difficulties were increased tenfold for his successor in office, who had the emphatic declaration of the Court of Queen's Bench also weighing upon him. The Attorney General had clearly no other course before him than that which he had adopted. The Attorney General, obviously, had no enmity against the soldiers: all his desire was fairly and fully to have justice administered, and the law impartially vindicated in the eyes of the country; and it appeared to him (Sir J. Young) that in the prosecution of this aim his right hon. and learned Friend had taken a fairer, course than that which had been pursued by his predecessor in office, who himself admitted that he had placed himself entirely on one side, with the purpose of establishing a prosecution against the other side. When the present Attorney General succeeded to the case, laden as it was with all the fresh difficulties bequeathed to it by the discomfiture of his predecessor in the Court of Queen's Bench, it was evident that if the trials went on they must be conducted by the Attorney General, and by no one else. It was the constant habit and practice in Ireland for the Attorney General to act as public prosecutor, and the contrary course on this occasion would have been altogether an exception. "To 374 the analogous practice of Scotland," wrote Hume, in his Commentaries on the Laws of Scotland—We owe the singular and constant moderation which has prevailed time out of mind in the administration of this part of public business. Certainly it cannot be disputed that by this contrivance the prosecutor is most effectually removed from the contagion of that popular prejudice, either for or against the accused, which is apt to arise in cases of an extraordinary or an interesting nature.Now, assuredly, if there was ever a case in which the Crown was called upon to interpose for the purpose of securing a fair and impartial trial, and moderation of proceedings, it was this under consideration. Accordingly, his right hon. and learned Friend had taken a mild course; he had not sent the soldiers and the magistrate to trial merely on the coroner's finding, but he sent up bills to the grand jury of Clare, to twenty-three of the most intelligent and independent gentlemen of the district, and thus a perfectly fair hearing for the inculpated persons was secured. Exception had been taken to the placing the name of the Roman Catholic clergyman, the Rev. Mr. Bourke, as a witness, on the back of the bills of indictment, and to the omission of those of the two officers. As to the officers, the objection was easily disposed of; it was not at all usual to place on the back of a bill of indictment the names of witnesses for the defence, and most undoubtedly these officers were the best witnesses for the defence that could be produced. Therefore it was that these officers' names were not placed at the back of the bill. On the other hand, what would have been said had Mr. Burke's name not been placed on the bill? The inquest began on the 3rd of August. On the 6th of August Mr. Bourke was examined as a witness against the soldiers, examined and cross-examined at great length. On the 11th he was examined again, and again cross-examined, and, once more, before the conclusion of the inquest, he was brought up to meet a witness adduced on behalf of the soldiers, and again cross-examined. A more material witness in the case could not be conceived. Suppose the name of this most material witness had not been found on the back of the indictment when the grand jury ignored the bill, what would have been said then? Would it not have been said that the Government had kept back a witness material to the development of justice? It was indispensable, in his (Sir 375 J. Young's) opinion, that Mr. Bourke's name should be placed on the back of the bill as a witness. The case before the grand jury would have been incomplete without that evidence. Well, the bills were ignored by the grand jury, and thereupon the Attorney General took what appeared to him (Sir J. Young) the obviously right course. He proceeded to give the whole of the soldiers and the magistrate in charge to one jury, bringing no evidence against them, and to have a verdict of acquittal recorded, after making the statement he had considered it proper to make. This course was clearly sanctioned by the authority of Lord Chief Justice Campbell, in the recent case of Ann Oldham; here a coroner's jury had returned a verdict of manslaughter against the prisoner. A bill for the same offence was preferred before the grand jury; but they ignored it, and the coroner's inquisition then came to be disposed of. The Lord Chief Justice, however, stopped the case; the grand jury, he said, had ignored the bill, and it was contrary to his experience in such a case for any evidence to be offered in support of the coroner's inquisition. The Attorney General, in the case before the House, had absolved the inculpated persons from all guilt as fully as he could. He now came to the priests, and to the question which had been so much agitated—why the prosecution against them had not been persevered in? The hon. and learned Gentleman (Mr. Cairns) said, that the Attorney General had assigned three reasons for not proceeding with this prosecution, and had observed, that where a man gave three reasons for not doing one thing, none of the three was in all probability worth a straw. He (Sir J. Young) had but one reason to offer why the priests were not proceeded against at the assizes. As regarded Mr. Bourke, the name of that priest having appeared at the back of the bill as a witness, the Attorney General considered that it would be an unusual and improper course—an unprecedented course—to send a bill up against that witness in the same case, at the same assizes, and before the same grand jury. The bill sent up against the soldiers was for a capital offence, for murder; the bill that was to have been sent up against the priests was for a riot. The House would perhaps allow him to read a case which had been placed in his hands, and which would perhaps illustrate the matter under consideration: At Wicklow, 376 in the case of "The Queen, at the prosecution of Julia White, v. Thomas M'Keane," at the summer assizes of 1852, informations had been sworn by Julia White on the 15th of June charging the traverser with a rape. The magistrates took the information, and bound her to prosecute; and, on the 21st of June, informations were taken by the same magistrates for perjury in this very transaction against Julia White. The hon. Member for Wexford (Mr. George) was counsel for the Crown; and, upon his stating the facts, the Court instantly directed Julia White to be discharged from custody, the Crown declining to prefer a bill of indictment against her. The Judge commented strongly on the conduct of the magistrate. The Crown Solicitor, Mr. Kemmis, a barrister lately promoted to his father's office by the right hon. and learned Gentleman opposite (Mr. Napier), on the ground of his great experience, in his Report to the Attorney General, described the taking of informations against the prosecutrix pending the charge of rape as very imprudent, irregular, and calculated to defeat the ends of justice; and the right hon. and learned Gentleman opposite himself, writing upon it, said—The conduct of the magistrate must be the subject of further consideration, for at present it is open to very grave censure.He (Sir J. Young) was quite at a loss to understand the entire discrepancy between the conduct of the right hon. and learned Gentleman opposite in the case he had thus read to the House, and his conduct in the case under consideration, censuring as he did, as highly reprehensible and calling for further inquiry, in the one case, the very same course which he himself had pursued in the other. With regard to the other priest, Mr. Clune, the Attorney General considered that the evidence against him was too weak to put him on trial. It only appeared that this gentleman, standing amidst the military and police, said—"Boys, can flesh and blood bear to see our religion brought up as convicts?" or words to that effect—words very imprudent, indeed, especially under the circumstances, but scarcely bringing the speaker within the category of riot. With regard to the Rev. Mr. Bourke, he was reported to have accompanied the procession some distance, walking by the side of one of the officers, and frequently speaking to the people, whom he had known previously. The evidence as regarded him was most contradictory, 377 he being reported, at one time, to have used the words, "Peace, peace!" and at another to have employed inflammatory language. But on one occasion, when he approached one of the cars, and was repulsed by a soldier, it was sworn by Mr. Bolton Waller that Mr. Delmege, the magistrate, said—" No! do not shove him away, he has been helping me to keep the peace." With reference to what had fallen from the late Attorney General, he declared that there was no reason for supposing that the present Government were not prepared to prosecute, when prosecution was necessary; but it was not wise to hold prosecutions over men, and thus keep up bad blood, if there was no prospect of a conviction when the matter was submitted to a jury. In Ireland it was a practice, when a prosecution was begun on one side, to try and get up a set-off prosecution on the other; and there was ground for suspecting, from the way in which the prosecutions against the priests originated, that they were got up as sets-off. It appeared that there was no talk of getting up those prosecutions until a verdict of wilful murder had been pronounced against the soldiers. Without quoting names, he would refer to a decision come to in Dublin some time ago; and lie dared say that all the high law officers of the Government were consulted on the course taken. He found that one of those high officers, a late Lord Chancellor, recommended on a former occasion, in a certain matter, a cross case to be got up as a set-off; and he firmly believed that in this case the prosecution against the priests had been got up as a set-off. From a letter written in November, 1831, by the then Lord Lieutenant of Ireland, it appeared that the House of Commons had ordered the prosecution of two gentlemen for bribery; the Attorney General was willing to prosecute one, but not the other, andhe strongly urged the necessity of the ex-candidates using every exertion to bring forward cases in a tangible shape, and as soon as possible, as a set-off, and which might cool the courage of the other party; but of course he must not be known to give this advice, which was strictly confidential.Now, it might just suggest itself to the mind that the same confidential advice had been given in the present case, and that these informations against the priests had been got up "to cool the courage of the other party." When the present Attorney General for Ireland—a man as honest as 378 any Gentleman on the other side, and whom he believed to be by the unanimous voice of his profession at present, as he had been for years, the foremost man at the Irish Bar—when the Attorney General stated that he had not a foundation to go to the jury upon, his opinion ought to be deemed authority at least equal to that of the right hon. and learned Gentleman opposite. He entirely agreed in the opinion expressed by the right hon. and learned Gentleman that the way for a Government to obtain popularity and support in Ireland was by firmly adhering to the law, and administering it without favour or partiality. He was firmly convinced that a Government which took any other way would find that it leant on a broken reed, for the people of Ireland, though credulous from ignorance, and apt from the misery in which they were plunged to be carried away by false pretences, were too quicksighted and sagacious not to see when a Minister or public functionary betrayed his duty; and a Government which corrupted the administration of justice would soon find itself falling into contempt, to be followed speedily by defeat and disaster. But no man could with any show of probability affix any stigma of catching at false popularity, or angling for support by unfair means, on a Government composed like the present. How vain was the pretext that attempted to affix the charge of using hollow delusive words—of making professions without meaning—on the statesman who presided over it: a man whose chief distinction it was, during a career of many years passed in the highest offices of State, never once to have pandered to specious popularity—whose whole life had been passed in offices of the highest trust, or in the midst of a domestic society and of social circles where the least deviation from truth would be regarded as the greatest imaginable misfortune—as an evil worse than death! The right hon. and learned Gentleman had referred to Lord Aberdeen's declaration, that soldier and priest, Peer and peasant, should be treated in the same way as far as the administration of the law was concerned. Those were the principles of the whole Cabinet. No one could impute to Lord Aberdeen that he would affix a stigma upon his blameless character, by making such a declaration merely for the purpose of popularity, and departing from the principle in practice. But Lord Aberdeen was surrounded by Colleagues, united in council and opinion; on which of them 379 was the stigma of cowardice and falsehood to rest? Could it be said of the noble Lord the Member for the City of London (Lord J. Russell)? Had he shown any desire to attract support when he refused the offer, or disregarded the threat, of those who called upon him to sacrifice the temporalities of the Irish Church? Could it be said of the noble Lord the Member for Tiverton (Viscount Palmerston)? It was not safe to answer for any man; but he would answer for the noble Lord, that he would never denounce a Bill as revolutionary and communistic at one moment, and then at the next, in the vain endeavour to get a precarious support at a critical moment, affirm its principle by consenting to its second reading. The insinuations thrown out against the present Attorney General for Ireland were perfectly baseless; and the right hon. and learned Gentleman opposite would have better consulted the interest of public justice by moving for the papers in silence. If he desired the information they contained, their production would not have been refused. He thought when one law officer of the Crown, immediately on his departure from office, turned round on his successor, an equally honourable man, with himself, and threw out insinuations against him, that that was a course likely to beget in the public mind a want of confidence in the due administration of justice. If the right hon. and learned Gentleman had any charge to make against the Government, let him bring it forward; if he had any grounds for supposing that the Government or the Attorney General, in any part of these proceedings, had warped the administration of justice, or deserted their duty, let him state them. Such warping of justice was a most unworthy course—in fact, a high crime and misdemeanor—the highest and worst of which a Minister could be capable. Let him bring the question, if he dared, to a definite issue, and not throw out insinuations which seemed designed chiefly as a cover for his own discomfiture in the Court of Queen's Bench. On that issue, he (Sir J. Young) was ready to meet the right hon. and learned Gentleman; but such a Motion as this ought not to have been brought forward. He challenged, on the part of the Government, a distinct and definite issue, and a full inquiry into all the circumstances of the case.
§ MR. WHITESIDE
said, the general interest taken in this subject, and the connexion which he had with it from first to 380 last, would, he trusted, justify him for trespassing a few moments upon the attention of the House. The question was one of great gravity, affecting the conduct of Her Majesty's Government, and the pure administration of justice. It was said, with great truth, that upon the pure administration of justice, more than upon fleets and armies, the peace and prosperity of a country depended. Whatever tended to bring it into contempt but weakened the reverence for the law, and endangered the peace of the country. They had not a Minister of Justice so called in the country, therefore the Members of that House were called upon to exercise the functions which such an officer would be bound to administer. Now, he invited their attention to a few facts, which, when they had heard, he would confidently submit the whole case to their judgment and decision. The outline of this unfortunate affray had been already given by his right hon. and learned Friend the Member for the University of Dublin (Mr. Napier). It came to this—that a body of the Queen's subjects, in the attempt to exercise a constitutional right, required the protection of the Queen's troops, who, in the discharge of their duty, were compelled to resort to the only means left them for the preservation of their lives from a lawless and infuriated mob. Six justices of the peace addressed a formal document to the high sheriff and commanding officer at Limerick, a copy of which he had then in his possession. Five of those magistrates, it must be admitted on all sides, were impartial and unprejudiced persons, of unimpeachable honour and high station. They signed a requisition, and forwarded it to the proper authorities, demanding the assistance of the military for the protection of civil rights. The military authority it was that fixed the number of soldiers that were to perform the duty required, and who appointed the officers, who set out under the sanction of a justice of the peace, who, to his lasting misfortune, accompanied the soldiers on the occasion in question. The nearest case to the one they were discussing, which presented itself to his (Mr. Whiteside's) mind, was that of Carrick-shock. What was that case? An officer of the constabulary, with fourteen or sixteen of the police, was sent as an escort with one of the ministers of justice. The officer was led into a narrow defile, or lane, where he was surrounded by the country people, front and rear, who told him that 381 they did not want to do him the slightest harm—that all they wanted was the minister of justice. "Give him up to us," said they, "and you and your men shall go scot free." As the officer in command advanced up the lane, the mob increased in their number as well as in the violence of their conduct. The sergeant said to the officer who had conducted them up this lane, "Sir, if you do not get us out of this defile, we shall have to fight for our lives, or we shall be Murdered to a man." Within two minutes after those words were pronounced, the officer, the minister of justice, and fourteen of the men of the constabulary, lay dead in the lane from the sticks and stones of the infuriated mob. Knowing every fact of that case, as well as every fact of the present case, from first to last, he (Mr. Whiteside) asserted now that if the military had not been more quick and prompt in their defence at Six-mile Bridge than the police were at Carrickshock, they would to a man have shared the same melancholy fate. He agreed with the hon. and learned Member for Ennis (Mr. Fitzgerald), who favoured him with a parting admonition that he ought to pour oil over the troubled waters, that the case was too serious to be disposed of by any small witticism expressed by one party towards the other. Let the House judge of the conduct of the military from the facts that were undisputed. They were the guardians of the rights of a free people. If they suffered the military power to trench in the smallest degree upon popular rights, he (Mr. Whiteside) would tell honourable Gentlemen that they would be deserting their duty. He had had an interview with Captain Eagar in respect to this business. What was his conduct? He (Mr. Whiteside) would fearlessly say, it was no other than that which an officer in a country like Ireland and England should pursue. When he arrived at Six-mile Bridge, this officer found the main street choked up by the people, and although his path lay direct through that street to the Courthouse, he did everything he could to avoid a conflict with the crowd. Now he (Mr. Whiteside) would admit that the military on such an occasion ought to consult the prejudices of the people; and in order to escape the possibility of a dispute, Captain Eagar, seeing a road to his left, which he thought might lead, though circuitously, to the Court-house, inquired of a constable, whom he met, whether he could not reach his destination by taking 382 that route. Receiving an answer in the affirmative, he turned into that street, with the hope of escaping every chance of a collision. The election at that time was coming to a close, and the numbers on each side were nearly equally divided. While the officer in command was proceeding quietly through this lane, in which there was scarcely any person when he entered it; he saw to his amazement a crowd of people suddenly before him, as if they had started up out of the ground. He (Mr. Whiteside) went over the same ground—he examined the narrow lane in which the fatal encounter took place—and he now protested that he saw stones enough along the ground to destroy any one of Her Majesty's regiments. [Laughter.] Hon. Members appeared not to be aware of the value of that weapon in Ireland. He was present, on more than one occasion, when it was proved that a single stone had despatched its victim. At the last assizes for Dundalk two men had paid the penalty of resorting to this kind of warfare, with their lives. At the left side of the lane the ground was some feet higher than in the lane; and there was a low wall, along which the people ranged themselves. They bore down behind, and crowded in front, and tried to force a way through the party. Would the hon. and learned Attorney General stand up and say, that as Attorney General for England be would not have prosecuted in such a case? No doubt a charge ought not to be lightly made against a Roman Catholic clergyman, any more than a clergyman of any other Church. He (Mr. Whiteside) would join in prosecuting the Primate or the Pope, if they broke the law, because he would not wish to see ecclesiastics ride over us; but be trusted he should never drag the gown of a profession that should be worn with honour through the mire of faction. If the grand jury had found bills against the military or the magistrates, what would have been the defence? That while engaged in a lawful duty the Queen's troops, in the Queen's uniform, known to the world, headed by a magistrate of the county, known to the people and the priests—these parties endeavouring to escape from collision with the people, were attacked with stones in front, rear, and side, in a narrow defile, and that that attack was stimulated by those whose duty it was to repress the passions that agitated vulgar breasts. The House had heard the eulogium upon the constabulary of Ireland. 383 They deserved it; their morality, their integrity, their veracity, their propriety of conduct, put them above all praise. What said one of them—Boyce—as high in position now as then?—Father Bourke was among the crowd; he appeared to be in a hurry, and rather excited; he had a whip in his hand, and his face was red as the procession moved on. I observed the crowd. Increased stone throwing commenced. After they passed the corner, it continued to increase about the corner of the chapel; here they began to be thrown from the sides and rear; before that they were only thrown from the rear. I don't think I ever saw more violent stone throwing. I consider the lives of the men were in danger at this time.What said Captain Eagar?—Before I arrived at the turn to the chapel a Roman Catholic clergyman rushed out from some place I did not know with a whip in his hand. He had a whip with a lash to it, flourishing it. I thought he was speaking to the voters who were inside my men. He appeared very much excited. I could hear no connected expressions used by him. I heard words. I heard the word 'God.' I heard something like 'traitor,' and something like 'guarded like convicts.' I have since been speaking to him, and I believe him to be Mr. Bourke.What said Mr. Bolton Waller, the magistrate?—I first saw Mr. Bourke between the bridge and the police barrack. I was taking care of one car, just between the middle and the front. He made several attempts to get up to the car. He shoved me, and I shoved him. Mr. Bourke was walking along the cars in a very excited state, wheeling his whip, and calling us convicts.Lieutenant Hutton spoke also to the stone throwing, and he said—I saw a priest there; I heard him say, 'To see those of our own religion and flesh and blood treated like convicts!' I heard the people calling out to pull the voters off the cars; it was said in the clergyman's hearing.Keane stated, "I heard the Rev. Mr. Bourke say, 'Rescue Keane's men; rescue Keane's men.'" What said Robert Torrens? He swore that he heard the priest say, "He would not allow the voters to be marched up like convicts, and he told the mob to drag them off the car." What was a soldier to do if he heard that, and was bound, at the peril of his life, to preserve the peace? What said the witness John Crouch?—Informant saw a Roman Catholic clergyman, whom he had since known to be the Rev. Mr. Bourke, of Cratloe, in said county of Clare, and heard him (Mr. Bourke) desire the mob to pull the voters off the cars; and the said Mr. Bourke went himself to pull them out; and, on being prevented by informant, Mr. Bourke took hold of informant's gun, and said, at the same time, he 384 did not care for informant or his steel, though he did not wear the Queen's cloth.He (Mr. Whiteside) wanted to know whether it was not an assault if a soldier on duty had his firelock seized? But it was interesting to know that every man under the pay of the Queen behaved with equal firmness. He believed, indeed, they would have resisted the Pope, as well as the priest, in the discharge of their duty. The next witness was Timothy Cooney. He swore that hesaw a Roman Catholic clergyman, whom he has since learned and knows to be the Rev. Mr. Bourke, of Cratloe, in the county of Clare, join the mob that were groaning informant and his comrades, and heard him (Mr. Bourke) desire the crowd to drag the voters off the cars; and when informant told him it was unbecoming a man of his cloth to urge a mob to such violence, he replied that it was no business of informant's, and that he would not see his parish freeholders marched like convicts.He believed there were ten witnesses proving there was a furious riot, ending in a bloody affray, and that Mr. Bourke was there. Indeed, Mr. Bourke admitted he was there, and he (Mr. Whiteside) considered that his conduct, if not criminal, was certainly reprehensible. He did not say that Mr. Bourke was guilty; but if that body of evidence had been given against another person in Ireland, soldier or layman, that person would have been compelled to answer for his conduct. He had nothing to do with Mr. Bourke's religion; but these were his overt acts: He assailed the troops, defied their power, and resisted the magistrates; he not only insulted but resisted the law; and if that were not a case for inquiry, he wanted to know how they were to govern Ireland as the right hon. Baronet (Sir Young) said he wished to do—"according to law?" As to the conduct of the Rev. Mr. Clune, there was similar testimony. Capt. Studdert said—He saw the Rev. Michael Clune, of Ross Manaker, in the said county of Clare, parish priest, address a large crowd of people near the said Court-house, and say to them, 'Shame, shame, boys; is there a man among you?' or 'is there a man by you? Here are voters coming from Cratloe, in covered cars—go, boys, go!' at the same time waving his hand in the direction of the lane; and immediately after, the crowd, who were previously standing quiet, went round the Court-house into the lane, and in a few minutes informant heard the firing.Corporal Marshall also gave evidence to the same effect, and said that he was struck by some of the mob, and became senseless, and be produced some of his clothes, 385 which were marked with his blood, and yet that was done, as he understood the right hon. Baronet, not by a riotous mob, but by an excited mob. There was the right hon. Gentleman, in a high office in the State, belonging to a party who claimed to possess all the intellect of the State, making an assertion that such proceedings were the result of mere excitement.
§ SIR JOHN YOUNG
said, his observations applied to the state of the town before the riot commenced. According to the evidence of the magistrates, the people were excited, but not violent; and he drew a strong distinction between that and what took place in the lane. He said, it was to be regretted that the soldiers were placed at a great disadvantage—there was a mob before and a mob behind them, and they could not possibly tell how the affray began.
§ MR. WHITESIDE
had certainly then misapprehended the right hon. Gentleman. He used the words that it was an excited, but not a riotous mob; and he (Mr. Whiteside) thought the right hon. Gentleman applied that to the matter in the lane; but he now made the matter worse, for he said it was not known how the affray began. But thirteen or fourteen witnesses had described how it began, and human testimony could not be believed if that did not produce a conviction on a judicial tribunal. If an Irish peasant said, when charged with such a crime, that he had committed it when he was inflamed by passion, or stung by famine, it would be no defence, and the Judge would sentence him to be hanged. If it had been done by any peer, as Lord Aberdeen was reported to have said, or by a British officer or soldier, would it have been any excuse to have said that, being excited, he broke the law? It was to repress human passions, to put down these outbreaks of excitement and temper, to make men control their feelings, that human laws existed. The military, he maintained, behaved like British soldiers. It was true that when drawn up in front of the court-house they fired on the mob, although they were not ordered by the magistrates to do so, but they fired in defence of their own lives. Would the House believe it—he imagined they scarcely would—that the unfortunate justice of the peace (Mr. Delmege), who no more gave the order to fire than the Speaker of the House of Commons; who, ten of the soldiers declared, upon oath, never gave the order to fire, although his order, if it bad been given, would have protected them 386 for doing so—this unfortunate man suffered under the terrific calamity of having been the cause of the deaths which occurred, when the only crime he had committed, in the opinion of the Attorney General, if, indeed, he considered it a crime, was, that when he saw a soldier about to attack a priest with his bayonet, he ran forward, and said, "For God's sake don't hurt that gentleman, he's been endeavouring to keep the peace," and thus saved the priest from the injuries which the soldiers from a sense of duty were about to inflict upon him. Mr. Delmege, in fact, did his duty to the best of his ability, and yet he had been stigmatised by hostile newspapers and common report as "Delmege the murderer," because it was said he had called upon the soldiers to fire, which, as lie had shown, was not the fact. Then, with respect to the charge against the soldiers of having fired down the street, the fact was this—that the soldiers had never been there before, and did not know where they were. A gentleman of the country, whose name he would not mention for obvious reasons, had been prepared to prove that he was present, and saw three soldiers stagger forward out of their ranks down the street. They were struck as he supposed, by some one; they had got separated from their comrades, their line was broken, and, from the instinct of self-preservation, they raised their muskets and fired across the street. Four shots, he believed, were fired, three of which struck a house opposite, where a constable was standing. One of the shots wounded a rioter, and the constable immediately dragged him into the house. It had been said the man was killed, and that his name was Maloney. This was a mistake. His name was Connarty, and he did not die. He was alive now. Well, then, such having been the tenor of the depositions which were were sent up to Dublin, it became the business of the Irish law officers of the late Government to see who was right and who was wrong. He admitted frankly that they thought that there was no legal evidence against the soldiers, and that even if there had been, the soldiers were not to blame, inasmuch as they were unlawfully attacked by an unlawful assembly in the discharge of their lawful duty, from which they could not escape. On these grounds they resolved that they should not be prosecuted. The conduct of these law officers, whether right or wrong, was consistent with this idea. If, indeed, they had sought to per- 387 vert the law, as had been alleged by the hon. and learned Member for Ennis, why did not that hon. and learned Member, in the exercise of his duty as an independent Member of Parliament, attempt to bring them to the bar of justice in that House? He would have had a fair tribunal and an impartial audience, for he (Mr. Whiteside) was sure that the House of Commons would never exert greater vigilance than in attempting to discover whether any of their fellow-subjects had been oppressed by the worst form of all oppression—he meant oppression under pretence of law. With reference to the prosecution of the soldiers at Ennis by the present Government, he begged to say that it appeared to him to have been a series of manœuvres from first to last. He admitted, for argument's sake, that the Attorney General might have sent up bills to the grand jury; but what did that show, but that in doing so he felt he could not venture in the existing state of public opinion, to have the soldiers tried on the finding of the coroner's inquest. He denied, too, the doctrine of his right hon. Friend (Sir J. Young) as strongly and as forcibly as he could, that it was the duty of the Crown prosecutors not to send up to the grand jury any witnesses for the defence. He maintained that it was the duty of the Attorney General to send up to the grand jury all the persons who had any knowledge of the transaction; that he ought not to endeavour to catch at a finding, but to give the grand jury the means of judging of the matter submitted to them. The result of sending the matter before the grand jury was, as the House was aware, that the bills were ignored. After that, the House might imagine his surprise when, in going into court next morning to take leave of the bar, he was sent for by the Attorney General, and informed, as a matter of courtesy, that he was about to try the soldiers on the finding of the coroner's inquest, and that he need not give himself the trouble of challenging the jury. This was the first information of the Attorney General's intention to proceed to trial after the grand jury had upon their oaths declared that there was no case to put the men upon their trial. Being tolerably well acquainted with proceedings of this sort, he ventured to say that nothing like this had occurred in Ireland within the last fifty years. On getting into the Court-house, the soldier was in the dock, and the Attorney General 388 commenced a speech, de omnibus rebus et quibusdam aliis. Well, he (Mr. Whiteside) denied the right of the Attorney General to put the humblest subject in the Realm on his trial for any other purpose than that of obtaining a formal acquittal, unless it were to establish his guilt. What would the House have thought of a law officer of the Crown putting the noble Lord opposite (Lord J. Russell) on his trial upon the finding of the coroner's jury, to which his right hon. and learned Friend (Mr. Napier) had referred in the course of his speech that evening? And where was the difference between the noble Lord and a common soldier in the eye of the law? There was no distinction recognised in this country between peer and peasant. And he must say he never saw a body of men more pained than were the military on that occasion when they saw John Gleeson—innocent on the finding of the grand jury—thrust into the dock. Thrust into the dock, for what purpose? The real truth of the matter was this: the Earl of Aberdeen's speech had arrived in Ennis. It was necessary to give an explanation that would go forth to the English public. It was necessary to say something, and there was no mode so easy as to seize John Gleeson, put him into the dock, and try him for murder. The Attorney General commenced his speech thus—and a better sentiment he (Mr. Whiteside) had never heard uttered than this:—The business of the public prosecutor," said he, "especially in this country, is to hold the balance even—to take care that strict justice shall be done. He, and he only, is in a condition, perhaps, to do that perfectly; and he, and he only, can be visited, if he does not, because he does it under great and serious responsibility. He is open to correction and to punishment in a way which no private individual can be.Well, he did it, and a tremendous responsibility ho incurred. But as to the Earl of Aberdeen, if he could not enforce what he said by his own officials, why, he was without authority and without dignity, and the sooner he abandoned his office the better. In another part of his address the Attorney General said rightly, "The Crown prosecutor ought not to come forward in case he is of opinion that the prisoner is not guilty." Did he come forward against John Gleeson, being wholly of opinion that he was not guilty? Yes, he did; for he stated in his (Mr. White-side's) hearing that the finding of the grand jury was perfectly right, and that no jury, whether grand or petty, could do 389 anything else than acquit that man. The next thing the Attorney General said, was—Gentlemen, in the vast majority of cases, perhaps in almost every case that a man is brought before a court of justice, the Crown prosecutor cannot form anything like a sound opinion as to the guilt or innocence of any individual. Informations are sworn against a man most positively. The Crown prosecutor, of course, must exercise the same discretion and the same judgment that anybody else would in forming an opinion upon the subject, and he may arrive at the conclusion that they are true, or that they are not true; but, gentlemen, he has not a right to act upon that opinion in hardly any imaginable case. He has a right to submit it fairly to a tribunal that can decide upon it; and doing that, and doing it fairly, he has discharged his duty.Why, out of his own lips, this eminent person stood condemned! According to his own excellent theory, his practice was indefensible. Allusion had been made to the case of Mr. Delmege. What earthly connexion was there between that gentleman and the prisoner in the box? None whatever. Yet once or twice the Attorney General named that magistrate, condemned him for his inexperience and incompetency, and charged him, in effect, with being the guilty cause of these unfortunate proceedings. Was such a course as that defensible? It might be asked, was Mr. Delmege in the commission of the peace now? Yes, to the present hour, and he (Mr. Whiteside) had received a letter from him, in which he stated that his life was miserable; that when he walked into his garden, he did so armed to the teeth; that he had then six constables in the house for the protection of himself and family; and that the speech of the Attorney General in the eourt-house had done more to bring down upon him the opprobrium of the people of Clare, coming as it did from the highest authority in the law, than all that could be said or done by any excited and prejudiced persons. He (Mr. Whiteside) felt at the time that he could have said something for Mr. Delmege; but then a court of law must not be converted into a mere debating club. His business then was to get Gleeson out of the dock, the grand jury having the night before declared that there was no ground for placing him on his trial; and the last words of the Attorney General were, "Now, Gentlemen, I have to inform you, that there is no evidence to be offered against the prisoner." He assured Mr. Delmege, however, that although it was impossible for him (Mr. Whiteside) to 390 speak one word on his behalf then, he had no doubt if there were anything wrong, there was a tribunal at which the matter would be set right. He afterwards saw two gentlemen escorted through the streets, surrounded by some fifty policemen, with drawn swords for their protection—and one of these was the magistrate escaping from the Attorney General under the guardianship of the law. He arraigned the conduct of the Executive in this matter as cruel, inconsistent, and unjust; for if Mr. Delmege was the inexperienced and incompetent man he was represented to be, why had he been permitted to remain in the commission of the peace? Why had he not been dismissed with disgrace and ignominy? If he might offer a word of advice to the right hon. and learned Attorney General for Ireland, he would venture to tell him that when again he put a man on his trial he must confine his attention to the prisoner in the dock, and that he had no right to accuse any one who could not be heard in his own defence. He might mention also that the right hon. and learned Gentleman alluded to the House of Peers, and criticised the noble Earl (the Earl of Cardigan) who had presumed to put a question to the First Minister of the Crown upon the subject. Now, that he (Mr. Whiteside) believed was not a privilege to which the Attorney General for Ireland was entitled; and his impression was that a Peer of the Realm might take the liberty of putting a question in his place in Parliament without laying himself open to criticism by that right hon. and learned Gentleman. The right hon. and learned Gentleman then made some observations about the freedom of election, which he (Mr.Whiteside) thought were very valuable. He observed—This I may say, without any danger, that no matter how lawful the purpose for which men may be assembled, they may make themselves guilty of crime, though their object originally was not criminal. In other words, an assembly most perfectly lawful may become, by the acts of those who compose it, or some of them, a perfectly unlawful one. To illustrate this:—If, for example, the crowd of people collected that day at Six-mile Bridge, being there for a legitimate object—the election of a Member for Parliament—during the progress of that election took it into their heads by force and violence in large numbers to assemble and obstruct voters, injure voters, and carry away voters, there can be no doubt that would be an unlawful assembly. Nay, more, Gentlemen, it would be an act of a deeper kind of guilt, in my judgment, than almost any misdemeanor known to the law; for it would cut at the root and foundation of all Government.391 Quite true; and that was what they did. The right hon. Gentleman the Chief Secretary (Sir J. Young) had expressed his regret that one cause of what had occurred was, that the military escort consisted only of forty men. But he (Mr. Whiteside) had not yet been able to discover that guilt was to vary or alter in proportion to the strength or weakness of the ministers of the law. The right hon. Gentleman bad also given them a short lecture on political ethics, which he (Mr. Whiteside) should not forget as long as he lived. He seemed to think that the candidate who failed at an election was morally responsible for any murders or other crimes that might take place on such an occasion; and that no man was to presume to contest a county if he happened to be in the position of Colonel Vandeleur, who, in this instance, ran his opponents within two votes, and which two votes were, by the success of the rioters, carried away by force. Every other man was true to the promise he had made to his landlord. The right hon. Gentleman had also told them that he thought the two priests were not morally guilty, and that if morally guilty they would have been prosecuted. How did the right hon. Gentleman know they were not morally guilty? Why, his learned adviser had said, that in no imaginary case could they decide that question, and that they were to send it to be decided by a tribunal which was not a tribunal of morals, but of law—a tribunal, not to inquire into the principles or morals of a person who had committed a crime, but whether or not he did it. How could the Attorney General know that Priest Bourke was sorry for what he did? It had been said that the late Government had prosecuted several priests; but he denied that they had prosecuted them as priests, although he admitted that they had been ready to prosecute all persons whatever charged with crimes, without any reference to their creed or profession. He protested, too, against the supposition that that subject had been brought before the House that evening in any party spirit. It had been brought before them because the originators of the Motion believed that the case imperatively called for further notice, and because they believed that it was part of their duty to assert the majesty of the law, and to vindicate the public justice of the country.
The ATTORNEY GENERAL
said, the 392 hon. and learned Gentleman (Mr. Whiteside) had called upon him to express his opinion to the House, but had not given him much opportunity of meeting that challenge, for when he looked at the late hour which had arrived [One o'clock], he could not hope that any observations of his would induce them to indulge him for more than a few minutes. He would not enter upon any discussion of the law as laid down by Mr. Justice Perrin, because he thought it unconstitutional for that House to sit in judgment upon the charges made by Judges to grand juries. All that they could deal with were the specific charges preferred against the present Attorney General for Ireland, and they were limited to two—namely, that he put the law in motion against the soldiers, and did not put the law in force against the priests. He must say, in all sincerity, that he thought the hon. and learned Gentleman, who had just addressed the House in one of the most impassioned and at the same time one of the bitterest speeches ever heard within the walls of Parliament, should have remembered, in the overflowing of that exuberant acrimony with which he sought to blacken and crush a professional brother, that the Gentleman he attacked was not present to defend himself—that at least the hon. and learned Gentleman should have been cautious in the language ho used, and at all events given time for the individual challenged to follow him through the charges which, with so much studied and envenomed bitterness, he had preferred against one of the law officers of the Crown. He would endeavour to do what justice he could, and in the first place it was necessary to look for a moment at the present Attorney General's position on his accession to office. That right hon. and learned Gentleman found that after the unfortunate and calamitous affair at Six-mile Bridge had taken place, inquisitions of blood had been held, and two coroners' juries had found verdicts, one of murder, the other of manslaughter, against the soldiers involved in it. This was no trifling matter, blood had flowed. Seven lives had been sacrificed. The greatest possible excitement had necessarily and naturally followed. The Attorney General in Ireland, totally different from the Attorney General in England, was the public prosecutor, on whom the responsibility of all criminal proceedings rested; and it was not competent for him to withdraw from the legitimate and proper 393 course of law, and to undertake the heavy and serious responsibility of quashing the proceedings under those inquisitions. How much more difficult was that position rendered by the course pursued by his predecessor? The previous law officers of the Crown, feeling that as long as these inquisitions existed, they dared not take upon themselves the responsibility of stopping the course of justice, had applied to the Court of Queen's Bench to get them quashed, and that application had been refused. The present Attorney General, therefore, could do no otherwise than let the law take its course. But in order to prevent the soldiers becoming the victims of popular passions and popular prejudices, instead of at once putting them on their trial before a petty jury, which, in the state of public feeling, might have led to conviction, he adopted a far better and more generous course; he interposed the grand jury between the soldiers and the petty jury. He sent them to a constitutional tribunal, consisting of gentlemen of education, station, and intelligence, before whom these men were perfectly certain they would have a fair and impartial inquiry; and what was the result? The grand jury ignored the bill. It was charged against the Attorney General that he did not put on the back of the bill the names of the officers who proposed to give evidence in favour of the accused. It was no part of the duty of a public prosecutor, it was no part even of the duty of a magistrate committing a prisoner for trial, to bind over witnesses whom the prisoner might bring forward. The object of sending a case to a grand jury was not to try the question, but simply to see whether there was evidence sufficient to put the prisoner on trial; and he believed it often happened when a primâ facie case was made out by one or two witnesses, the grand jury did not think it necessary to go through the rest of the evidence. The grand jury in this case thought proper, by a most unprecedented course, to call before them the other witnesses, and they ignored the bill. It was made a matter of charge against the Government that they did not furnish the accused parties with the means of defence. The hon. and learned Member for Belfast (Mr. Cairns) might well be pardoned for making that statement, because he was not aware of the facts of the case; but that two learned Gentlemen, late the law officers of the Crown, should have allowed him to make that statement with- 394 out contradiction, did impress his mind with feelings of astonishment, the truth being that the Secretary at War actually gave orders that the soldiers should be furnished with the means of defence, and make their own selection of the counsel to defend them.
The ATTORNEY GENERAL
But an individual who brought charges against a professional man, should be at least a little cautious as to the foundation for them. So much then for that part of the case. But then it was said, what business had the Attorney General, after the grand jury had ignored the bills, to take one of the soldiers and put him on his trial, on the ground of the verdict of the coroner's inquest? The Attorney General must have done so, or he must have entered a nolle prosequi; and in his (the Attorney General's) judgment, he took the only proper course—he put the man upon his trial, and then he told the jury that the soldiers were perfectly justified in what they had done, that there was no case against them, and that they must be acquitted. And yet that course had, by the perverse ingenuity of political malignity, been twisted into a charge against his right hon. and learned Friend. But then it was said that the Attorney General ought to have put the priests upon their trial. Now, in his judgment, he believed that if the Rev. Mr. Clune had been placed in the dock, they would not have got a conviction against him. He admitted the case was stronger against the Rev. Mr. Bourke. Why did he not? Because Priest Bourke's name was on the back of the indictment. [Laughter.] He heard a laugh. He should like to know what would have been said if, after the important evidence that had been given by Priest Bourke at the coroner's inquest, his name had been omitted from the list of witnesses. Suppose the grand jury had ignored, as they did, the bill against the soldiers, would it not have been said that if the evidence of the priest had been before the grand jury, their finding would have been different? In his apprehension that charge would have been very much more serious than the one they had now to deal with. Well, but it would have been a monstrous anomaly to have sent a charge against the same clergyman before the same grand jury. Would it not have been said that the priest was in this condition, that he 395 was under a necessity of giving a colour to his evidence against the soldiers, because it was only by their conviction that he could himself escape? And if he were cross-examined, would he not have been entitled to shelter himself under the plea that he was not bound to criminate himself? and thus the ends of justice would have been defeated. The only question that remained was—ought the priest now to be prosecuted? He had not heard either of the hon. and learned Gentlemen the late Attorney and Solicitor General for Ireland assert that he ought. Nay, he would go further, and say, that if they were to return to office to-morrow, they would not resume the prosecution. He agreed that it was not because a man was a priest that he ought to escape with impunity when ho violated the law; but would it be politic now to renew the excitement? Alas! we saw enough in this House of the passion that was imported into every transaction in life on the other side of the water. But he must say that the primary object of any Government ought to be to allay the feuds and heartburnings that now existed, and to restore peace to the community. This very evening the hon. and learned Gentleman who last spoke, had afforded a remarkable instance of the way in which things were done in the sister country. If it were the misfortune of a law officer in this country to have to bring a charge of malversation or dereliction of duty against his successors, it would be maintained with reluctance and regret—it would be done with moderation, forbearance, and kindness. The House would not have seen the bitterness, the hate, the passion kindled into fury, which was exhibited by the hon. and learned Gentleman opposite. These things were to be deeply lamented, and all the more when they found that to bitterness and resentment were added injustice, harshness, and cruelty, for those were the charges which he in his turn brought against the hon. and learned Gentleman. A more bitter speech he had never heard against an absent man, and that upon evidence which was not before the House, and on which they had no means of judging charges against a man who was at the head of his profession, and whose character stood as high as that of the hon. and learned Gentleman—charges in bringing which behind his back the hon. and learned Gentleman had been guilty of a series of petty manœuvres. In the name of an 396 absent and ill-used man, he repudiated, with the just indignation it deserved, this attempt to assail the character of his right hon. and learned Friend.
§ LORD ADOLPHUS VANE
said, that at that late hour of the evening he should not enter into the details of that case; but he wished to state that, on the first occasion of a Motion for the House resolving itself into a Committee of Supply, he would move the Resolutions of which he had already given notice upon the subject.
§ Question put, and agreed to.
§ The House adjourned at a quarter before Two o'clock.