§ MR. BRYAN
said, he rose for the purpose of asking the Chief Secretary for Ireland, Whether his attention has been called to the constitution of the Irish Bench, Law and Equity; and whether (considering the advanced age of some of Her Majesty's Judges), in the opinion of the Irish Government, its present condition is satisfactory and conducive to the due administration of justice in Ireland. But before doing so he said it would be necessary to trouble the House with a very brief statement of facts. The magnitude of the evil and a sense of public duty obliged him most reluctantly to call the attention of the House to the present constitution of the Irish Bench. Personalities were always reprehensible, but in the present instance it would not be possible for him to convey the subject to the House without indulging in them to a certain extent. he could assure the House, however, that he would do so with as much delicacy as the disagreeable na- 779 ture of the case would allow. The first case to which he would call the attention of the House was that of the Lord Chief Justice of the Irish Court of Queen's Bench, a gentleman who was once an ornament to his profession, but whose waning intellect and bodily infirmity had rendered him unfit for the high judicial position which he now occupied. He found that as far back as 1856 the attention of the House was called to the infirmities of the Lord Chief Justice by Sir John Shelley, and in order to be accurate on the subject he would, with the permission of the House, read as much of his opening statement as bore upon the case in question. Speaking of Chief Justice Lefroy, Sir John Shelley said—He would not go through the Irish Bench, but he would merely allude to three of those venerable men who had arrived at the longest period of life and service. The first was Chief Justice Lefroy. He was born in 1774, and was therefore (ten years ago) 82 years of age. He was called to the bar in 1797, and his infirmities were naturally and necessarily great, and if the Returns which he moved for were granted, it would be found that he was constantly obliged to have a substitute to perform his duty, who had to be paid out of the Consolidated Fund.The House would therefore see that ten years ago its attention was called to the inefficiency of the Chief Justice; and even in the recent State trials which occurred in Dublin he did not preside; he did not occupy his proper and legitimate position as Chief Justice of the Queen's Bench. He did not wish it to be understood that he found fault with the Government selection, because the two gentlemen who presided on the occasion he referred to were known to do honour to the ermine. He, however, thought it was unfortunate and reprehensible when the Executive had upon particular occasions to appoint special Judges. Out of numerous cases which had come under his notice, he would refer to one only—the case which occurred at Tullamore, King's County. There a man was tried for the murder of Lieutenant Clutterbuck and found guilty; when it was, in the first place, found necessary by the law officers of the court to correct an inaccuracy in the commencement of the Judge's charge—he having stated that the clothes of the murdered man had been found upon the prisoner—though they were never found till after the culprit was hanged—and then, lo and behold, the Lord Chief Justice could not recollect the form of words used in pronouncing sentence of 780 death. To obviate this difficulty, the words were written down for him in a large and plain hand; but then it was found that the Lord Chief Justice could not read them, and the right hon. Gentleman the Attorney General for Ireland had to stand beside his Lordship on the bench and repeat the words to him before he could pass sentence. He would now show the state of public opinion in Ireland, and read a few brief extracts from certain authorities in that country. The first ran thus—The sight of one so aged placed upon the bench for the administration of justice is indeed affecting; and, while we pity the aged chief, we condemn the unkindness which conceals from him the feelings of the bar, the suitors, and the public.The next one was as follows:—It is not enough that the Judge should be capable of concentrating his attention during one part of a case, and be capable of following the evidence and the arguments through the remainder; the whole mind and strength of the Judge in full and sustained vigour are due to the public service, and this the public service has long ceased to have from the Chief Justice Both civil and criminal cases are sent to the jury by him without reviewing the evidence, which he cannot remember, and of which he seldom takes a note.The first extract was from a number of the Irish Times issued during the present year, the political opinions of which were identical with those of the right hon. Gentleman opposite (Mr. Whiteside), the Chief Justice, and his friends; while the other was from the Dublin Evening Post, an organ of the Liberal party in the country. The whole of the Irish press—with two exceptions, if as many—teemed with articles such as those from which he had read extracts. What, however, made more lamentable the inefficiency than if it had been exhibited by a puisne Judge was the circumstance that the weight of the business fell upon the Chief Justice in the after sittings; the records came before him, and there, as upon circuit, the Judge sat unaided. But the consequence of the present state of things was—as nobody knew better than the right hon. Gentleman the Member for the University of Dublin that every stratagem was tried by counsel and attorneys to avoid the Queen's Bench. It was now his duty to advert to another subject—that of the Lord Justice of Appeal. Some years ago the establishment of a Court of Appeal was considered to be necessary. It was a serious thing to take cases to the Upper House of Parliament, both on ac- 781 count of the distance and the expense, and also the poverty of the country; and about ten years ago a Court of Appeal was instituted, which consisted of the Lord Justice of Appeal, who sat conjointly with the Chancellor of the time being. That court was reckoned a very great boon at the time, and it worked well for some period. At length the intellect of the Lord Justice Blackburn gave way, and now the court was virtually a dead letter. As the Chancellor sat in the Court of Appeal, and appeals from Chancery came before him there, it amounted to appealing from the Lord Chancellor to himself. He therefore asked the House if a court which was at one time reckoned so great a boon was, through the incapacity of one individual, to become useless. The hon. Member then read an extract from what he designated to be a leading authority, asserting thatThe scandal of judicial incompetency resulting from declining mental and physical power through extreme old agewas not confined to the Court of Queen's Bench, seeing that the Lord Justice of Appeal was eighty-four years of age, and that his intellect was "only not altogether gone," and that what was intended to be one of the most valuable tribunals for reviewing the decisions of the Judges had thus become of little use to the country. He acknowledged there was some difficulty in producing provable facts in the case of the Lord Justice Blackburn, because, unlike the Chief Justice of the Queen's Bench, he never sat alone. The hon. Member then quoted another extract from the Irish Times in reference to Lord Justice Blackburn, which stated that his judgments were almost reduced to this form, "for the reasons stated I agree." He had no doubt that in the course of the evening the right hon. Gentleman the Member for the University of Dublin (Mr. Whiteside) would rise and attempt to cast the veil of his eloquence over these receding shadows of a past generation. He would, however, remind the right hon. Gentleman that not even his vigorous eloquence could alter facts, and his large experience must have taught him how difficult it was to convince a jury when a client had no case. Notwithstanding the views which he had expressed, he would ask the right hon. Gentleman to contradict, if he could, this fact—that the notorious incompetence of Chief Justice Lefroy and Lord Justice Blackburn was the common and everyday topic of conversation in the 782 Law Courts and clubs, and at every dinner-table in Dublin. What answer the Chief Secretary for Ireland, on the part of the Government, might give to this important question he did not know; but if, after the statement made by their Chief Law Officer, they refused to take steps to remove those veteran and incompetent Judges from the Irish Bench, the House, he was sure, must agree that it would he a disgrace to the Executive and an insult to the country. In conclusion he begged to ask the right hon. Gentleman the Chief Secretary for Ireland, Whether his attention had been called to the constitution of the Irish Bench, Law and Equity, and whether, considering the advanced age of some of Her Majesty's Judges, in the opinion of the Irish Government its present condition was satisfactory, and conducive to the due administration of justice in Ireland?
§ MR. CHICHESTER FORTESCUE
Without feeling it my duty to enter into the details to which my hon. Friend has alluded, and without taking and notice of his concluding remarks as to what Her Majesty's Government may think it their duty to do or say on so grave a matter as this, I will at once give the answer which I have to make on the part of the Government to the question which my hon. Friend has put to me. As a general proposition, there can be no doubt that there is an advanced time of life beyond which it can be scarcely within the bounds of possibility that a Judge can continue to fill his exalted station with advantage to Her Majesty's subjects or with dignity to himself. And if it were thought right to lay down any rule upon the subject, and to draw any line of age beyond which a Judge should not be permitted to occupy a seat on the bench, I think we should all agree that the line would be drawn short of the age of ninety years. But with respect to the cases in which my hon. Friend asks me for my opinion, I have this to say:—Her Majesty's Government think that the only constitutional course for them to pursue, if any action should be taken on the matter, would be not the expression of a mere opinion, but the adoption of a graver and much more serious course—namely, that of moving an Address from both Houses of Parliament to the Crown; a duty, or a possible duty, which would not differ in kind, though it would differ in degree, from the duty of any private Member of this House. If facts should be brought to the knowledge of Her Majesty's 783 Government distinctly proving a failure and miscarriage of justice in Ireland, in consequence of the advanced age or failing faculties of any Member of the Bench, Her Majesty's Government would not shrink from that responsibility. But short of the point at which that responsibility may arise, a question of which Her Majesty's Government must judge for themselves, they deem it their duty to abstain from expressing any such general opinion as they are invited by my hon. Friend to give.
§ SIR HUGH CAIRNS
I do not rise for the purpose of entering into any details, such as have been mentioned by the hon. Member who brought this subject under the consideration of the House. Of the details which he has given I am necessarily ignorant, and I should be sorry, therefore, to offer any opinion as to the accuracy or inaccuracy of the facts which he has alleged; but I cannot help asking the House to consider the character of the case put by the hon. Member, and, as it seems to me, the very great inconvenience, and I might almost say the great injury to the administration of justice, which must arise from bringing subjects of this kind in this manner under the consideration of the House. Let me ask the House to observe what is the proposition put upon our Notice paper, and which is understood in all parts of Ireland to form the subject of our debate to night. The question put is whether, in the opinion of the Irish Government, regard being had to the advanced age of some of Her Majesty's Judges, the constitution and the present condition of the Irish Bench, law and equity, are satisfactory and conducive to the due administration of justice in Ireland? No names are mentioned, but a general insinuation is conveyed that the state of the Irish Bench, both at common law and equity, is unsatisfactory; and the House is asked to-night to enter into a consideration of the merits or demerits of persons whose names are not even mentioned, and who are not apprised beforehand of the facts to be brought forward which they or their friends in this House will be called upon to meet. What would be thought if some English Member were to put a notice of this kind upon the paper—a notice affecting the Lord Chief Justice, the Keeper of the Great Seal, or some other of the superior Judges of law or equity, and to drag their names before the public without notice and upon mere newspaper paragraphs? ["No!"] Yes, I 784 repeat it, upon newspaper paragraphs, which bear upon their face their own refutation. If there were truth and foundation in what has been stated it ought to be put before the House in the form of a distinct Motion, such as the right hon. Gentleman has referred to, and then, as a matter affecting the due administration of public justice, notice would be taken of the facts by the House. I speak with as great freedom as any one, and free from bias or prejudice upon this question. And, as the right hon. Gentleman has referred to the propriety, in a general point of view, of not having Judges upon the bench at very advanced ages, I will state candidly what my opinion is. I think it would be a question well worthy of being considered and determined in Parliament whether there ought not to be some age beyond which, as a general rule, Judges should not occupy their position on the bench. We have secured—and it is one of the highest ornaments of the Constitution—the perfect independence of our Judges, and we have further secured to them, by one of the wisest expenditures that this House ever agreed to, ample retiring pensions after a proper period of service. It would be well worth while, I think, to make those pensions claimable after a certain limit of age is passed. The right hon. Gentleman mentioned the age of ninety; I should be glad to see seventy-five assigned as the limit, beyond which no Judge should occupy a seat on the bench. I perfectly admit that after that age we have had some very excellent Judges. Providence has been so kind to some men that at seventy-five, at eighty, and long after eighty, benefiting by the great experience which they enjoyed, their natural sagacity became increased, and made them among the brightest ornaments of the Bench. But these are exceptional cases, and, as a rule, I believe the country would benefit by a limit of retirement, while the position of the profession would be improved. But there is another circumstance which operates very strongly with me in saying that I should like to see a general rule established. Observe how extremely invidious the task must always be of bringing before the public or the Legislature the position of a Judge who has remained upon the bench beyond the time when his natural capacity fits him for doing so. The persons naturally most conversant with the failing intellect and strength of the Judge are the persons practising before him; but they are the 785 persons, of all others, with whom it would be a matter of delicacy to make a public complaint or to offer a public defence of the Judge before whom they practice; though I ought, indeed, to make some exceptions from such statements, for after the observations which we heard the other night from the Attorney General for Ireland, I must say the feeling of delicacy does not seem to prevail in the mind of the leader of the Irish Bar. I think, as I have said, that the question of age in public officers filling judicial situations should be made the subject of general enactment, and not of comment or criticism in particular cases. Particular cases have been mentioned to-night, and there is one which I have no hesitation in mentioning, because it reflects the highest credit upon the eminent person to whom I am about to allude. We have in this country also Judges of very advanced years, and I must say that some of them exhibit to this day proofs of the greatest physical and mental ability. One of these, the very eminent and distinguished man who fills the position of Judge of the Admiralty Court, was selected last year by the late Prime Minister as the Judge of all others in this country to whom one of the most important and arduous cases that have arisen of late years should be referred. I mean the case of the Banda and Kirwee booty. And I venture to say, though, owing to absence from the country, I was not a witness of it, the manner in which that case was conducted, and the close attention which he gave to the lengthened arguments which were addressed to him, reflect the highest credit on that learned Judge, and afford the most satisfactory proof of mental and physical ability on his part. At the same time, or nearly at the same time, the eminent Judge of whom I have been speaking was, by the selection of the Government, chosen to act as a member of the Capital Punishment Commission; and any gentleman who served upon that Commission will know how arduous was the undertaking and how great was the attention to the subject which it involved. Now the Lord Justice of the Court of Appeal in Ireland is about the same age as the distinguished person to whom I have referred; and it seems to me rather too much to assume that, because he has reached that age, it is impossible he can fill his position upon the bench properly. The hon. Gentleman stated that the Judge was a dead letter. [Mr. BRYAN: I said the Court was a dead 786 letter.] Well the effect is about the same. I cannot bear personal testimony to what passes in the Court of the Lords Justices in Ireland, but we have constantly brought before the House of Lords appeals from that Court, and so far from there being a common form of judgment, in which Lord Justice Blackburn says he concurs with the Lord Chancellor, the fact is quite otherwise. Not more than two years ago there was a case in which Lord Justice Blackburn differed from one or two of his colleagues, and his opinion was confirmed by the House of Lords, in opposition to that of the other two Judges. The name of the Chief Justice of the Queen's Bench has also been mentioned. I can state from what has fallen under my own observation with regard to that eminent person, that not more than three years ago a great case connected with the salmon fisheries was tried before him in Dublin. A number of exceptions were taken to his ruling. They came to be argued in the Court of Exchequer Chamber in Ireland and the decision of the Judges was this:—Two of the Judges of the Exchequer Chamber agreed with the Lord Chief Justice; all the other Judges differed from him. An appeal was brought to the House of Lords. The English Judges were summoned. They were unanimous, and the Law Lords were unanimous, in favour of the opinion of the Lord Chief Justice of the Queen's Bench in Ireland. I have very recently read in one of the public papers a report of a trial for bigamy in Dublin, and the question arose as to the effect of a man's going through the ceremony of marriage, being a Protestant, before a Roman Catholic priest. The prisoner was convicted in the first instance, but on an appeal to the Court of Exchequer Chamber the majority of the Judges acquitted him. The Lord Chief Justice of the Queen's Bench was among the majority, and I had the pleasure of reading a very elaborate and convincing judgment from his Lordship, in which he seemed to have led his learned brethren by the cogency of his arguments. Therefore it is really a little too much, it would be fatal to the independence of the Judges in any country—I say, moreover, it must be very injurious to the administration of justice and to that respect which we all desire the judicial office should have in the eyes of the public, to bring forward charges of this kind, which, when traced out, seem to rest on no proper grounds, and which are directed against individuals who (however 787 great the wonder, seeing their advanced age) still appear to possess their faculties to the fullest degree. I do not say one word about the trial in question, of which I know nothing. I was very much surprised to hear the Attorney General for Ireland make the statement he did the other night. Far be it from me to question the accuracy of it; but the statement is at least different from that which has been made by some of the jury and counsel who were present on the occasion. They give a very different version of the subject. I venture to say on the general question, however proper it may be for this House to consider whether some universal rule should be applied to the age at which Judges should not continue to fill judicial appointments, it is highly injurious, in a general conversation of this kind, to make charges against individuals as to whom no distinct and specific Motion is made in the House.
§ MR. MAGUIRE
Sir, I desire to afford the right hon. Gentleman the Member for the University of Dublin an opportunity of replying in this case; therefore I rise to continue the discussion. However the Motion or question of my hon. Friend the Member for the county Kilkenny may have excited the surprise of the hon. and learned Member for Belfast, in my opinion my hon. Friend has done a great public service in bringing the subject before the House of Commons. I can make every allowance for the reserve under which the Secretary for Ireland is bound to act in reference to a matter of this nature, and I know how difficult it is to bring the Government to the point of asking the interference of Parliament with regard to any one of the Judges of the highest tribunals of the land. But private Members are under no such reserve; and if no private Member could be found to speak the truth boldly on this or a similar question, injury to the public interest would be the necessary result. In the statement made by the hon. and learned Member for Belfast with respect to Chief Justice Lefroy, the hon. and learned Gentleman no doubt relied on what he believed to be the best information. On the general question, I very much agree with the hon. and learned Member for Belfast; and had he not made the suggestion which he has done, it was my intention to have done so. The hon. and learned Member for Belfast expressed the general opinion of the House—certainly of the Irish Members, so far as I know—when he said that there should be some fixed limit beyond which a Judge 788 should not continue to sit on the Bench. This is surely a fitting subject for inquiry; and it may be fairly left to the consideration of a Select Committee of this House to decide, not as to this particular case of Chief Justice Lefroy, but as to the age beyond which Judges should be held incompetent from physical causes to discharge their judicial functions. My hon. Friend the Member for Kilkenny has truly said that the incompetency of the Chief Justice is the subject of conversation at the Bar, in the four Courts, and at private tables in Dublin. It has been, I can truly state, the subject of conversation and comment amongst the profession in Cork, and the mercantile community of that city; and so far from its being limited to the present time, I believe it has been spoken of for the last ten years. And, Sir, if a Judge of the highest tribunal of the country be incompetent, from age and infirmity, or from any cause, to discharge the duties of his office, I ask, is not that one of the very subjects which it is right to bring before the House of Commons. I desire to bring this matter to a test. I would ask the right hon. Gentleman the Member for the University of Dublin to stand up at that table, and declare in the presence of this House, that he believes the Chief Justice thoroughly competent to discharge the onerous and responsible duties of his high office. I ask him, will he pledge himself to such a statement by his professional character in Ireland, and his position in this House? No man knows the facts of the case more fully than he does, and I now challenge him to give a distinct answer to my question. Eight years ago, when Lord Derby was in office, there was an attempt made, as I understand, to remove Chief Justice Lefroy from the Bench, and place another in his stead. I have been told—indeed it has been since then a matter of common gossip—that the Chief Justice would have resigned on that occasion, but that his probable successor was not personally pleasing to him. The Chief Justice had conceived an unwarrantable prejudice against one of the most distinguished members of the Irish bar, who would have adorned that high position by his eloquence, his learning, and his character. The Lord Chief Justice was then eighty-four. Has he improved in mental and physical vigour in 1866, when he is ninety-two years of age? If it were considered right and prudent to replace this venerable Judge in 1856, when he was 789 eighty-four, is it right and prudent to retain him in the same position in 1866, when he is ninety-two? The Bar of Ireland are unanimous on the subject. I do not much care for the statement of Mr. Battersby, which was relied on in the debate in the other House of Parliament. I have not the honour of knowing Mr. Battersby, nor do I know whether there are two Battersbys at the Irish Bar; but I have been assured that one Mr. Battersby has frequently made the incompetence of the Lord Chief Justice of Ireland the subject of free remark and of very lively description. We are asked to respect the Judges on the bench, and to maintain inviolate the independence of our judicial tribunals. Sir, I hold the complete independence of our Judges to be one of the noblest features of the British Constitution, and one which we should most jealously cherish and defend; but is it not a grave public scandal that a Judge should continue on the bench after he has reached an ago when, according to all human calculation, he is necessarily incompetent to the discharge of his judicial functions? There is an authority which may be taken as final and conclusive in this case. Mr. Napier has written a letter with reference to the Chief Justice, which has been quoted in the other House. I only refer to a single sentence in that letter, and I maintain that that single sentence, coming from so eminent a person, forms a complete justification of the course which has been taken by my hon. Friend the Member for Kilkenny. Mr. Napier says—It is quite true that the Lord Chief Justice is no longer young or vigorous enough to deal with lengthened or complicated cases.Let me ask, are the parties litigant to abbreviate and simplify their cases before they can, according to Mr. Napier, hope to have them properly tried before the Chief Justice of the Court of Queen's Bench in Ireland? How, I ask, in the face of such an opinion, will the right hon. Gentleman the Member for the University of Dublin explain or justify the further retention of Chief Justice Lefroy in his present position? I shall give a case exactly in point, to vindicate the accuracy of Mr. Napier's damaging description of the physical and mental capacity of the first Judge of the highest tribunal in Ireland. I do not publicly give the name of my informant, who has freely communicated to me on this subject, but I am quite willing to mention 790 his name in confidence to any gentleman; and I shall only say that he is a rising man at the Irish Bar, and a gentleman of undoubted honour, personally known to me for many years. I do not mention his name publicly, for an obvious reason—Judges ate, after all, but human and fallible as ourselves—and we are fallible enough in all conscience; and a Judge may not be altogether prejudiced in favour of the barrister who has spoken the truth in reference to his fitness or capacity. A long and complicated case came lately—within a few days, or weeks at furthest—before the Chief Justice. It was just one of the cases described by Mr. Napier in his letter. It was that of Megare against Pim, brought by some foreign merchants against a Dublin firm. Fifteen issues were involved, and several thousand pounds were at stake Now, I have been informed, not alone by the gentleman to whom I have referred, but by others, that nothing could exceed the exhibition of incompetency, confusion and imbecility on the part of the Chief Justice. That venerable functionary was wholly unable to instruct the jury, and the jury were utterly bewildered, not only by the complication of the case but by the incompetency of the Judge. Again, on circuit, a short time since, the first witness in a case was under direct examination when the Chief Justice actually began to address the jury as if the case had closed ! Then, as to the wonderful judgment in the celebrated marriage case, on which we are asked to believe the Chief Justice to be in full possession of his faculties; I have been informed, by two barristers, that that judgment was not delivered at all, but that it was sent to one newspaper, and copied from it into the other Dublin newspapers. By those who were in Court on that occasion I am informed that the exhibition of the Chief Justice, so far from being remarkable for mental vigour, was on the contrary one of utter feebleness and confusion. Moreover, on the same day, there was another case—that of the "Queen v. Steins"—in which, as the court were unanimous, it became the duty of the Chief Justice to deliver judgment; but, after mumbling a few words, as if he intended to grapple with the propositions involved in the issue, he stared wildly in hopeless confusion of intellect; then, in a moment or two after, lurched forward, and simply said, "Judgment affirmed." Not another intelligible word was uttered by him in this case—on the day, too, when 791 we are told he had delivered so splendid a judgment in the celebrated bigamy case. Were it necessary, I could at once mention half-a-dozen other cases in proof of the utter breakdown of his mental powers. Then as to the trial of the murder of Lieutenant Clutterbuck. I received this day, from a gentleman in Ireland, a newspaper containing a long vindicatory article in favour of the Chief Justice, in which his entire address to the jury in this grave case is given. Here is this address, consisting of a few sentences, in which there are a few legal platitudes—bad in law, as I have been assured; and the only reference to the evidence in this important case is a mere casual allusion—a statement that it had been proved that the clothes of the murdered man were found on the accused, whereas nothing of the kind had been proved, or had really happened. If the manner in which the venerable Judge has tried this case is the best vindication that can been made for him, then it goes a very little way to prove his continued fitness for his most responsible position. What, indeed, can possibly be expected under the circumstances? The Times has summed up the whole matter in one sentence—"The Chief Justice is ninety years of age." There is a slight error here, for he is really in his ninety-second year. The true state of the matter is what I am about to describe on the authority of several men of the Irish Bar, who are at this moment in the active practice of their profession; and I appeal to the right hon. Gentleman the Member for the University of Dublin whether what I state is not the literal fact. From the time the Chief Justice goes into court until half past twelve or one o'clock, his faculties are marvellously bright; but about that hour nature asserts her supremacy, and the poor feeble old man sinks and droops, and the intellect that was bright and strong a short time before becomes like so much wool; and from that moment he is thoroughly incompetent to grasp the details of a case, or grapple with any question involving minute facts, complicated circumstances, or subtle arguments. The Chief Justice has been described as a venerable ruin, but we do not want venerable ruins on the bench of Justice; venerable ruins are very picturesque, but we like to see them removed from active life. Again, it is said that the Judge displays at times grand flashes of intellect. Aye, but those grand flashes of intellect are merely like the flashes of an expiring lamp before 792 the utter extinction of its light. Sir, it is a melancholy thing to have this question dragged before this House; but the blame of bringing it forward is not due to my hon. Friend, but to those who do not urge this venerable man to withdraw from the bench which for so many years he has adorned and dignified, and seek the retirement which befits so awfully advanced a period of human life—when he is trembling on the very brink of the grave, and so soon to stand in the presence of that greatest of all tribunals. The hon. and learned Member for Belfast said that numbers of cases were brought before the Chief Justice—which statement was made in proof of the efficiency of that Judge. But what is the fact? On the 9th of this month there were seventeen cases in the nisi prius list of the Queen's Bench; and of that number but three—two of them being of a paltry nature—were tried, all the others being withdrawn, because neither the solicitors nor their clients would risk questions affecting property before a Judge whose age and failing powers rendered him incompetent to deal with them successfully. Whatever may be the result of this discussion, I hope the wise suggestion of the hon. and learned Member for Belfast will be taken up by the Government, and that they will have the courage to propose a Select Committee in order to deal with the whole question as it affects the Judges generally. I now conclude by again challenging the right hon. Gentleman the Member for the University of Dublin to declare whether he does not know the opinion of the Irish Bar to be that the Chief Justice ought no longer to remain on the bench—and whether he himself has not expressed that opinion? I have spoken in this painful case, not in the interests of lawyers or parties—for it is one far above the scramble of lawyers for place, or the contentions of parties for the exercise of patronage; but in the name of the public at large, whose dearest interests are involved in the question of the fitness and competency of the Judge who is to try questions of property, of liberty, and of life. I have so spoken to this House, for I feel it to be my duty not to shrink from the statement of the opinions I hold on so grave a matter.
§ SIR GEORGE GREY
After the answer that has been given on the part of the Government by my right hon. Friend, and after the temperate speech that has been delivered by the hon. and learned Member 793 for Belfast, I hope this question may be allowed to drop. I entirely agree with ray right hon. Friend in the opinion that he has expressed, that it is scarcely possible that a Judge, at the very advanced age of ninety-two, can discharge the onerous duties which necessarily press upon a Judge, and especially on the Chief Judge of one of our Courts of Justice, with that efficiency and vigour of body and mind which characterized him at a former period of his life; but, at the same time, I entirely agree with the hon. and learned Gentleman that it is most undesirable, as long as a Judge is seated on the bench, and administers justice, that his infirmities should be brought before the House in the present irregular manner. My right hon. Friend has declined, on the part of the Government, to express an opinion in answer to the question that has been addressed to us, because the law has pointed out modes in which, if there is any failure in the administration of justice, redress may be obtained. The hon. and learned Gentleman has said, and said truly, that the law secures the independence of the Judges, He also said, with equal truth, that in order to prevent their being induced to remain on the bench longer than it is for the interest of the public they should do, an ample and liberal pension after a certain period is granted. But the law has done more than that. It has pointed out the mode in which, if there is failure in the administration of justice, from whatever cause, affecting any Judge, both Houses of Parliament may address the Crown to remove that Judge from office. I say, therefore, that if the facts are as stated it will be for hon. Gentlemen to consider if they will not adopt that course; but if that is not done the matter ought not to be brought into discussion in this House in an informal way, but ought to be brought forward in a legal and constitutional manner, with a view to redress. I do hope we shall not be asking questions as to alleged facts, and reading extracts from newspapers in regard to the conduct of Judges, but that we shall abstain from doing anything which can lower the dignity of the Bench; and that we shall fearlessly and firmly take that course, if the circumstances should require it, which the law and the Constitution provide. I have only one word more to say. While I fully admit the temperate tone in which the hon. and learned Gentleman (Sir Hugh Cairns) addressed the House, and while I regard 794 his suggestion as a good one, though without binding myself to any precise limit of age at which a Judge ought to be compelled to retire, I must say that he did not speak in the same spirit of fairness with respect to my right hon. Friend the Attorney General for Ireland. On the former occasion to which reference has been made, my right hon. and learned Friend expressed to me his great regret that such a question had been put on the paper, and I know that he did his utmost to induce the hon. Member to withdraw it. [Mr. BRYAN: That is quite true.] The question, however, being put, and involving, as it did, only a question of fact, my right hon. and learned Friend felt bound to state the facts as they had come within his own knowledge. I do not know what other course he could have taken than answering briefly, and without expressing any opinion, as to a fact within his personal cognizance. I am sure the hon. and learned Gentleman opposite is the last man to wish to do an injustice to my learned Friend, who I know felt himself bound, with great reluctance, to answer a question which he regretted had been put.
§ MR. WHITESIDE
The hon. Gentleman who asked this question, and the hon. Member for Cork having pointedly appealed to me, I feel bound to state my view of the matter. I could not have thought it possible that any one could be found to repeat again the story with respect to the trial of Lieutenant Clutterbuck's murderer. It appears that the relatives of the unfortunate gentleman who were present at the trial have testified that justice was administered on that occasion with the strictest impartiality. I will read one of these testimonies—
§ "Charleville Forest, Tullamore,
§ "May 10, 1866.
§ "Major Bury presents his compliments to Mr. Lefroy, and, in reply to a telegram just received, begs to state that he was present on the occasion of the Chief Justice passing sentence of death on the prisoner King last August at Tullamore, and he believes that any hesitation on the part of the Chief Justice in passing sentence was only caused by the darkness of the court, and the frequent interruptions which took place."
§ The writer of this is a gentleman of high position in the country. One of the jury has since written a letter, from which I will quote a sentence, as it is a complete refutation of absurdities which have been put in circulation—795
§ "THE LORD CHIEF JUSTICE.
§ "To the Editor of the Daily Express.
§ "Sir,—I observe by your paper of this morning that the Attorney General is reported to have stated in the House of Commons that the account of the Lord Chief Justice's conduct on the occasion of the trial of King for the murder of Mr. Clutterbuck, as related lately by Lord Clanricarde in the House of Lords, was substantially correct. Now, sir, having been one of the jurors in the case, I think I can bear testimony to its incorrectness, especially with regard to his (the Judge's) charge to us, the jury, which, although very brief, was extremely lucid. That the evidence had been very thoroughly impressed on our minds in the course of the trial must have been manifest to all the Court, hut the prisoner's counsel having urgently argued against the credibility of some of the witnesses, his Lordship, in the clearest manner, informed us that we were bound to believe the oath of every competent witness, unless some good reason were proved for our not doing so; and as counsel for the crown had conceded the privilege of the 'last word' to the prisoner, he most properly stated that he would not weaken that advantage by any observation of his; indeed, the evidence was so clear and overpowering that it was quite unnecessary to review it. A point had been raised by counsel, which, if valid, would have necessitated a direction to acquit, and a judgment of Chief Baron Joy's was cited in its support; this judgment the Attorney General met by his unsupported assertion that the work in which it is published is one of no authority; how-over, there it was, and the Chief Justice, in the most graceful manner, said he would be guilty of greater presumption than he hoped he ever should be were he to rule on his own single opinion against that of such an eminent Judge; so that, although decidedly differing with it, he would reserve it, particularly as it was such a very serious case. We all know that the result was that the Chief Justice's judgment has been affirmed, and I cannot but think that such a circumstance, occurring at the end of a long and fatiguing trial, showed evidence of great clearness of mind. Not having remained to hear the sentence, I do not know what may have occurred; but, considering that the court was lighted only by a few tallow candles, although it might, were it not for the parsimony of the grand jury, have been brilliantly lighted by gas, it cannot surprise any one that some difficulty should have been found in reading. Hoping I may not have trespassed too far on your space, I am, yours, &c, "ONE OF THE JURY.
§ "May 4."
§ It is quite necessary to ascertain what the real facts of the case are, and I insist that if the hon. Gentleman has the slightest idea of fairness and justice, he will move for the Returns which I will point out to him. I have this day received a newspaper from the King's County containing what professes to be a reprint of the charge of the Chief Justice to the jury, and presuming it to be accurate, I never read a more rational and judicious charge in a case involving capital punishment. It has been asserted that the Chief Justice misunderstood a portion of 796 the case in pronouncing sentence, and the hon. Member urged that a Judge who committed such a mistake ought to be brought under the notice of the House of Commons. What would the hon. Gentleman say supposing a Judge not having an almanac with him, sentenced a prisoner to be hanged on a Sunday? Yet such a case has occurred. It was an accidental error, and when the Judge who committed it returned to his lodgings and discovered it, he went back to court, recalled the prisoner, and sentenced him to be hanged on the Monday, and yet his incompetence was not thought so great as that the matter should be brought before the House of Commons. In the present case the prisoner's counsel relied upon a flaw in the indictment, which arose as follows:—The alleged murder was committed within 500 yards of the boundary of a county, and the counsel for the prisoner contended that the indictment should have set forth the fact that the murder did not take place in the county in which it was tried, but 500 yards outside of its boundaries. The incompetent Chief Justice said that he did not think there was anything material in the point, but that he would reserve the question for the Court of Appeal. Had he been a man of weak mind he would at once have given the prisoner the benefit of the doubt, and the assassin would have) escaped. Many Judges in similar circumstances might have ordered an acquittal. In one case which I recollect, a Judge of competent ability, in sentencing two prisoners to be hung, forgot the order that their bodies should be buried in the gaol, and the prisoner's counsel eventually got them off on the ground that the sentence was informal, and Lord Denman, in alluding to the occurrence in a letter, said that he had himself been guilty of a similar mistake, and that the prisoner's sentence had consequently been commuted. In another case, Justice Perrin sentenced a man to an imprisonment to which he was not liable. Were not these mistakes equally culpable with that of the Chief Justice?—and yet we never heard of any outcry being raised against those Judges. At the instigation of the Chief Justice the Judges met in the long vacation as a Court of Criminal Appeal to hear the question reserved at the trial argued, and over that court this incompetent man presided. The Judges of that court, with one exception, held that the decision of the Chief Justice was right, and the convicted prisoner suffered the 797 punishment of the law. Does any one impute that this learned magistrate has ever decided corruptly? ["No, no !"] I did not suppose you would say "Yes." It has been asked whether it is not a notorious fact that attorneys shun the Court of Queen's Bench. From my own knowledge I can state it is exactly the reverse. The competency of that learned Judge would contrast favourably with that of many of the younger Judges on the bench of Ireland, or even of England. His decisions have rarely been reversed, and in many instances where the majority of the common law Judges of Ireland have overruled his decisions, those decisions have been upheld by the House of Lords. I recollect in one instance being at Cork nine days while the Judge disposed of a ease which the Chief Justice would have disposed of in a day and a quarter. If the amount recovered in a court be taken as an index of the quantity and importance of the business transacted by it, taking the official Returns for the last two years, I find that the amount recovered in the Queen's Bench in the year 1864 was £345,740, and for 1865 was £445,000, or more than double that recovered in any other court, and this in the year that the hon. Gentleman has been rashly advised by an unscrupulous partisan to select for making his accusation. There is an Act of Parliament which enables the Lord Chief Jus tice to call to his aid puisne Judges to try some of his causes, if he find the list ton heavy for him. Let the hon. Gentleman move for a Return, and see if a single sixpence has been expended in obtaining the services of a substitute under this provision of the law. I assure the hon. Gentleman that the case is entirely the other way, and that this Judge has not found it necessary to resort to a practice which has found favour with other Judges. He, in deed, has rarely or never done it. When the hon. Gentleman ascertains how much truth the statements which he has made to-night contain, he will, I am certain, never repeat them. It ill becomes the hon. Gentleman to quote at second-hand observations made by persons who would hesitate to make them publicly, and would in any case find considerable difficulty in substantiating them. But at what time was this charge first made? It was on a day when a leading journal characterized the Lord Chief Justice as "decrepit," and I believe "senile;" and in the same paper appeared the report of the judgment 798 which the hon. Gentleman the Member for Cork asserts was never delivered by the Lord Chief Justice. Now, on that point I take issue with the hon. Gentleman, and I do not hesitate to say that it is a pure fiction, invented by some person who has induced an honourable man to repeat it here. I happen to know the facts. It was a question of bigamy to which that decision related, which had puzzled several of the Judges in Ireland. There was a difference of opinion among the puisne Judges upon the case, and they desired to have the benefit of his assistance. It was argued over again in his presence, and his judgment not only decided the question, but in my opinion decided it rightly. That judgment was reported, and no doubt read very well. The last time I had the honour of seeing the Chief Justice was at the dinner-table. There was cheerful conversation, good wines, and pleasant society, and all the manners of an old gentleman as wide awake to everything passing in the world as the hon. Member himself. When I came here this evening I thought the hon. Gentleman would confine himself to the case of the Lord Chief Justice, but he has also referred to the Justice of the Court of Appeal, whose intellect he said was giving way. Now, I believe that a more fresh, active, intelligent, lively gentleman in conversation and temper, and a man of more eminent distinction at the Bar, never hold the office which he holds. I am perfectly willing to admit that the judgments of the Masters in Chancery and of the Judges of the Landed Estates Court have generally been confirmed. Indeed, I made use of that argument myself the other day in discussing a Bill relating to Chancery matters, and in support of the present system I referred to few judgments reversed, as showing the excellent character of the decisions given. The hon. Gentleman says he is surprised that a man of such great age should retain, in the manner which is stated to be the case, his great powers of mind and body. I had not very long ago an opportunity of conversing with Lord Lyndhurst, and found that his recollection of facts and circumstances were as strong as it would be in a man of forty. Only lately I have received three letters from members of the Bar. I am informed that the Lord Chief Justice takes his place on the bench regularly every morning, that he was never more vigorous than during the week when his capacity was being questioned in this House, and that his decisions were characterized 799 by marked ability and justice. Indeed, in reference to these two latter qualities the Lord Chief Justice was made the subject of high encomium by a much younger man—the Chief Justice of the Court of Common Pleas, The other Judges rightly defer to his judgments, because—and I say it without hesitation—they are always the best. I assure the hon. Gentleman the Member for Cork that in repeating the rash stories in circulation he has not acted with his usual discretion and judgment. If he can prove his assertions, I challenge him to bring them forward properly and to adopt a constitutional course. It is absurd to say that a man is incompetent merely because he his old. In one of his latest judgments the Chief Justice was not only clear but sarcastic. The judgment was described as being as pointed and pithy as any judgment that was ever delivered. It might as well be said that Titian had lost his genius in his age, that Radetski could not win a battle, that Lord Lyudhurst was a fool, as that the Chief Justice was unfit for his position on account of his age. The fact is that one man fails at sixty; another reaches a far greater age—blessed with a good conscience and having led a happy, wholesome life'—body and mind remaining in full vigour to an age greater than that allotted to ordinary mortals, This should be a ground for gratitude to the Author of our being, and it is unjust to make it a ground of attack on a learned Judge. I may say, with reference to the statement, that the clerk of the court had to furnish the Lord Chief Justice some short time since with the words of his judgment, that, on the authority of the clerk himself, the matter which he handed to the Lord Chief Justice contained simply the legal formula, which he had handed up to the Bench not on that occasion only, but in every similar case for the previous twenty years. I say there have been many questions referred to his judgment, and that the opinion he has expressed upon them have stood the test of appeals to the House of Lords. I should be glad if I were put right if my impression is wrong, but I believe that, although many of his judgments have been taken to the House of Lords, none of them have been reversed. Recollecting, then, who is the person accused, and who, with all respect to him, is the accuser, and what is the subject-matter of the accusation, I hope the House is satisfied that the particular matter referred to is unsupported, and that, with every respect to the hon. 800 Gentleman, he has fallen into a grave mistake in bringing this matter before the House on a second occasion.
§ SIR ROBERT PEEL
I only rise to say one word with respect to the Motion of the hon. Member. There is no doubt that when he first proposed to offer his Motion to the House he intended only to refer, as far as I can gather, to the Lord Chief Justice; but he has now seen fit, it appears, to add the name of the Lord Justice of Appeal. It is in his name that I wish to say one or two words bearing upon the question. I concur with the right hon. Gentleman who has said it would be better if definite cases were fixed upon in which it could be shown that the Lord Justice of Appeal had in any way failed to do his duty. That should be made a substantive Motion for an Address to the Crown, in order that the matter might be fully considered; and if anything was brought home to the Judge in question, he would then be properly removed from discharging the duties of his office. The hon. Member for Cork said he could produce numberless instances of a failure of justice on the part of the Lord Chief Justice and of the Lord Justice of Appeal. I am surprised—
§ MR. SPEAKER
The case must be decided in accordance with the rules of the House and of debate. The right hon. Baronet is in possession of the House. If he chooses to give way, he can do so; otherwise the hon. Member must reserve his explanation until the right hon. Baronet resumes his seat.
§ SIR ROBERT PEEL
I think the rules of the House conform to the manner of my proceeding. The hon. Member can rise when I sit down, and correct any statement which I may make; but he has no right whatever to interrupt me while I am speaking. And the House will bear with me when I express my opinion upon what he has just submitted for our consideration. He said that, according to the gossip of eight years ago, the Lord Chief Justice would have withdrawn from the Bench if his successor had been agreeable to him. It is too bad for an hon. Member representing an important constituency such as Cork—and he takes good care to tell us every time he speaks that he represents 801 the important constituency of Cork—I say it is too bad of him to get up and make a statement of that kind which he knows is perfectly unfounded.
§ MR. MAGUIRE
I rise to order, and I claim your protection, Sir. I wish to know whether any Gentleman in this House is allowed to say of another Gentleman that he has stated that which he knows to be unfounded? If such a statement were made outside of the House a very un-Parliamentary reply would be made to it.
§ MR. SPEAKER
The right hon. Baronet must be aware that to assert that an hon. Gentleman makes a statement which he knows to be unfounded is going beyond the Parliamentary limits of debate.
§ SIR ROBERT PEEL
The hon. Member stated, and it must be within the knowledge of the House, that he reported the gossip of eight years ago. That statement I will not retract.
§ MR. SPEAKER
The right hon. Baronet has transgressed the rules of debate, and he is called upon to explain or withdraw the statement.
§ MR. SPEAKER
The right hon. Baronet has stated that the hon. Member has made a statement which he knew to be incorrect [An hon. MEMBER: "Unfounded"]; which he knew to be unfounded; so saying, he passed the authorized limits of debate.
§ SIR ROBERT PEEL
Perhaps I may be allowed to say that what I said was this:—The hon. Member said, repeating the gossip of eight years ago, that the Lord Chief Justice would have withdrawn from the bench if his successor had then been agreeable to him. I say that is a statement which is wholly unfounded; and I defy the hon. Member to prove that statement.
§ SIR GEORGE GREY
My right hon. Friend will, I am sure, after the intimation which has fallen from the Chair, retract the statement which he made. He surely did not intend to impute that the hon. Member made a speech which he knew to be unfounded.
§ MR. SPEAKER
The right hon. Baronet should understand that the hon. 802 Member for Cork does not object to the assertion that the statement was unfounded, but that the right hon. Baronet had said that the hon. Member had made a statement which he knew to be unfounded. That is the representation, and that is the point which I pronounce to be un-parliamentary.
§ [This expression of opinion was followed by a pause of a few moments, during which the right hon. Baronet put on his hat. The act was followed by repeated cries of "Chair!"]
§ MR. SPEAKER
then said: The right hon. Baronet has now been called upon by the House to apologize after having made a statement which passes the proper limits of debate. The right hon. Baronet has heard what the statement is. The right hon. Baronet has said that the hon. Member for Cork has made a statement which he knew to be unfounded. That statement having been objected to and a point of order raised, I must, in the discharge of my duty, call upon the right hon. Baronet to make an apology, or retract the words which are objected to.
§ SIR GEORGE GREY
The intimate knowledge I have of my right hon. Friend will not permit me to doubt for a moment that he will show full deference to that expression of opinion from the Chair; but perhaps I may be permitted to say that I am afraid my right hon. Friend does not understand the point in issue. He is perfectly at liberty to contradict the statement made by the hon. Member for Cork, but he is not at liberty, according to the ordinary rules of debate, to impute to the hon. Gentleman that he wilfully made a statement which he knew to be untrue.
§ MR. WHITESIDE
The hon. Member for Cork, as I took it, repeated certain stories current among professional persons, some retail talk, in fact; and I think the right hon. Baronet has fallen into the mistake of supposing that the hon. Member had mentioned those stories as if they were within his personal knowledge.
§ SIR ROBERT PEEL
That is exactly the point. I am quite willing to admit that I meant to infer that the gossip which he of course had listened to eight years ago was unfounded. I do not mean to say that 803 the hon. Member was making what he believed to be an unfounded statement. I said that of the gossip of eight years ago. [A laugh.] Hon. Gentlemen may laugh; but that is really what I said. I have often had occasion to explain what I may have said. I believe the hon. Gentleman has given credit to gossip which was wholly unfounded, and which ought never to have left any impression on his mind. I am sorry I rose to speak at all. It is only out of personal regard to the Lord Justice of Appeal that I desired to say one word on the subject. There are plenty of persons to defend the Lord Chief Justice; and you must permit me to say that during my long residence in Ireland I never heard the least complaint against the Lord Justice of Appeal, or any statement that he had in any way failed to transact the duties of his office, which he has always performed in a manner satisfactory to the public. I have been confirmed in this by many with whom I have spoken upon the subject. I merely wish to add that I heard with very great pleasure the remarks of the Home Secretary, and I do entirely concur with him that it is most improper to adopt the course which has been pursued by the hon. Member for Kilkenny and the hon. Member for Cork. [Mr. MAGUIRE: Not improper.] But in my opinion it is so. If the hon. Member by interrupting me thinks he puts me to the least inconvenience he vastly overrates his own importance, and undervalues my indifference to him. I said what I felt, and I repeat the statement, that a more improper and more unfair charge was never urged than that which has been brought forward in this House to-night in an indirect manner by the hon. Member for Kilkenny.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. SULLIVAN)
assured the House that nothing but a sense of duty would have induced him to say a word upon the subject under discussion. His right hon. Friend the Attorney General for Ireland was placed in a painful position by having to answer a question addressed to him by the hon. Member for Kilkenny as to matters of fact; and he asked the House what opinion it would form of any Member who, on being asked a question as to certain matters which occurred in his presence, either refused to answer or gave a false answer to the question. All that his right hon. Friend did was to make a reply according to his personal knowledge to a question which, as his right hon. Friend 804 the Home Secretary said, the Attorney General was most anxious should not be put, and had, in fact, used every exertion to get withdrawn. Now, the right hon. Gentleman the Member for the University of Dublin (Mr. Whiteside) had attempted to cast doubt upon the accuracy of what the Attorney General for Ireland stated upon that occasion, and he would call the attention of the House to the unreasonable manner in which that answer had been dealt with. The question of the hon. Member for Kilkenny was addressed entirely to what took place during the passing of a sentence upon an unfortunate man who was afterwards executed for murder. The points were—Was the sentence written out? Was the Chief Justice unable to read what was written? Had some persons to read to the Chief Justice the legal words of the sentence so that he might pronounce it correctly? Well, the Attorney General for Ireland replied in the affirmative to the three questions, observing that what was implied in them was perfectly correct. Having himself been present at the trial, and having been an eyewitness of all that occurred on that painful occasion, he was prepared to corroborate every word of the reply of his right hon. Friend. When the hon. and learned Member for Belfast attributed, and wrongly attributed, to his right hon. Friend a want of delicacy in this matter, he could not know the person of whom he was speaking. How could the Attorney General be accused of want of delicacy when he simply gave answers in that House to a question—answers which were most reluctantly given? He confined himself strictly to the answer, saying nothing as to the competency or incompetency of the Chief Justice. Then, how had the attempt been made to cast doubt upon the accuracy of the reply of the Attorney General. The aspersion came very ill from the right hon. Gentleman the Member for the University of Dublin, who, when reading from a letter published in the Dublin Daily Express, signed by one of the jury, omitted a most material part of it.
§ MR. WHITESIDE
I read that letter to explain what took place at the trial—not to contradict the statement of the Attorney General for Ireland.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. SULLIVAN)
said, that if that was the object of the right hon. Gentleman he did not avow it. He appealed to the House as to whether its impression was not that the letter was read 805 to cast doubt on the observations of the Attorney General for Ireland. Now, the sentence to which he referred ass having been omitted by the right hon. Gentleman was as follows:—"Not having remained to hear the sentence, I do not know what may have occurred." This fact placed the right hon. Gentleman the Member for the University of Dublin in a very extraordinary position. He had assailed the honour of the Attorney General by reading a letter written by a gentleman who was not present during the passing of the sentence, and had suppressed this fact, although the remarks of the Attorney General were confined to what passed while the sentence was being pronounced.
§ MR. WHITESIDE
said, amid loud cries of "Order"—I read the letter of Mr. Boyle, and not the letter of the juror on this point.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. SULLIVAN)
said, that explanation would not do. He was surprised at the interference of his right hon. Friend in this debate, especially after the right hon. Gentleman the Secretary for the Home Department had addressed the House. When he was reading that letter of the juror, in justice to the Attorney General he ought to have said, "This does not affect what the right hon. Gentleman has said." Why was the material fact that the juror did not hear the sentence pronounced kept hack? The other letter did not in the smallest degree impugn what his right hon. Friend had said, simply admitting that something strange took place, and observing on the want of light in the Court House. As to the competency or incompetency of the Lord Chief Justice, he would not, for obvious reasons, give any opinion. He believed, however, that the House would come to the conclusion that the Attorney General for Ireland had done his duty in answering the questions put to him, and that he had discharged that duty in accordance with truth and the facts of the case.
§ SIR GEORGE BOWYER
said, that he would abstain from offering any opinion as to the competency or the incompetency of the Lord Chief Justice or of the Lord Justice of Appeal, because on that subject he knew nothing but the statements which had been made in course of the debate, and it appeared to him that they were very conflicting and could not be relied upon. The incapacity of the Lord Chief Justice of Ireland to pass sentence of 806 death upon a prisoner, and the fact that that sentence had been reduced to writing and placed before him, had been made the subject of serious discussion. As to the circumstance of writing out the sentence for a Judge, that was a practice which he had frequently seen followed by various Judges. To the best of his knowledge, at the Old Bailey, where it was probable that more sentences of death were passed than in any other court in the kingdom, the sentence of death was invariably written out by an officer of the court, and placed before the Judge. He saw the late Chief Justice Tindal read the sentence he passed in the celebrated case of Courvoisier. His chief object in rising, however, was to state that if discussions of this sort were encouraged in that House the dignity of the judicial character—which was essential to the due administration of justice—would be most seriously impaired, perhaps, in some instances, absolutely destroyed. Expressions in regard to the Lord Chief Justice of Ireland had been used in the course of the debate which had given him great pain; they ought not to have been used with regard to a person in his high position, especially after he had served his country so many years. Another reason why such questions should not be raised in that House was that they could not but assume a party character. Whenever a point was made against the Chief Justice there were cheers from the Ministerial side of the House; and when anything was said in his favour cheers came from the other side of the House. Such questions, as he had said, would inevitably assume a party character; for the Government would support the Judges they appointed, while the Members on the left of the Speaker would probably take an opposite course. He could not approve of the suggestion of his right hon. Friend the Member for Belfast, that a limit of age should be set, on arriving at which Judges should resign, for if that had been the rule in this country, it would have deprived the Bench of many of its best and most shining occupants. They must all remember the case of Lord Chancellor Campbell, who, from being Chief Justice of the Court of Queen's Bench, passed at the age of eighty to the Court of Chancery; and, although never previously conversant with the practice of Courts of Equity, he there supported the high reputation which he had previously acquired. It was a mistake to suppose that, as in other occupations, men through old age became incompetent for the judicial 807 office. To some extent that might he the case, hut increased experience gave Judges a facility in the execution of their work which they had not acquired in the same degree when younger and more vigorous. Like old wine, the flavour improved, though the strength might diminish. He would remind the House that Lord Mansfield retained the office of Chief Justice of England till long after he had passed his eightieth year—and he maintained to the very last his reputation as probably the greatest Judge that ever adorned the Bench in this country. If a line were drawn beyond which Judges should be incapable of acting, it would be necessary to go a step further, and interfere with the privileges of the other House of Parliament; for there would be an obvious inconsistency in compelling the retirement of a Chief Justice of the Queen's Bench, who, as a Law Lord, might still sit and review the decisions of his successors in the Court below, and of all the other Judges. To get over the difficulty they must he prepared to go the full length of declaring that after a certain age men should cease to exercise their privileges as a Peer. He might refer to the case of the United States, where the Judges were compelled by law after a certain age to retire. Under the operation of that law Chancellor Kent was compelled to resign the judicial office, and it was after he was thus superannuated and declared incapable of sitting in a Court of Justice that he wrote those Commentaries which were not only of the highest authority in his own country, but were regarded with admiration throughout the civilized world. Then look at the case of Lord St. Leonards. His Lordship was about the age at which it was suggested that retirement should be enforced, and yet he sat regularly to hear appeals in the highest court of the realm, and those who were in the habit of practising before him would support the assertion that the noble Lord was as competent to discharge those duties as he had ever been, or as any one could be. It was true that Lord Lyndhurst did not at a late period of his life hold the office of Judge; but he heard appeals in the House of Lords, and frequently sat in the Privy Council, where his ability and capacity were conspicuous to all. A line drawn sharply at seventy or seventy-five would deprive the country of the services of men like these. The Judges who retained their offices till the latest period were generally the most eminent. Ordinary men soon found their work fatiguing, and 808 were glad to retire as soon as they decently could on their otium cum dignitate. But eminent men, men of genius, talent, and learning, went on till the last, and frequently died in harness. Lord Tenterden, it was known, did so—he died while trying a case in the Central Criminal Court. Or, take the case of Dr. Lushington, one of the greatest civilians this country had known since the days of Lord Stowell; he was as competent for his duties at that moment as he was years ago; but under the arbitrary rule proposed to be laid down he would be compelled to resign his office, and the country would be deprived of his services. Increased interest and importance attached, he believed, to the rulings of veteran Judges. He could give a further instance of his own knowledge to show the impossibility of drawing the line. When he was abroad in very early life, there was a Judge who held in Savoy an office, that of President of the Senate, corresponding to the post of Lord Chief Justice; and after he had passed the age of 100 he was still looked up to as an honour to the law, and the greatest Judge living at the time. He had no doubt that cases of inconvenience would at times arise from having aged Judges on the Bench, hut these were exceptions, and a rule of enforced retirement would be a greater evil still. When a Judge was incapacitated from age or infirmity the proper course for persons who were aware of that incapacity, and especially for those who had been injured by a failure of justice, was to lay the matter in a formal businesslike way before the Executive, and leave it to them to apply the remedy which the Constitution prescribed.
§ MR. GEORGE
said, he should feel unworthy of the profession to which he belonged, and of the honour of the personal and professional acquaintance of the two great men whose names had been introduced into that discussion, if he remained altogether silent when attacks were being made upon them. It was melancholy that the fame and character of two such men should be made the sport and plaything of individuals in that House, whether for party or other purposes. These charges had been brought forward on lax and miserable evidence—such, for instance, as the conversation of dinner tables, of clubs, of the highway, or the contents of newspaper paragraphs. But to his mind it was still more painful that the two Law Officers of the Crown, representing the honour and dignity of the profession, had felt it necessary to offer 809 themselves as witnesses. The Attorney General, he thought, should have delegated to another the task of answering the question addressed to him; and if compelled to answer it himself, he ought to have done so not in curt and general terms, but to have gone into a detail of the facts, and not allowed it to be inferred that the charge of incapacity implied in this miser able transaction was substantially correct. The charge originally brought forward, he must say, appeared to be one of the most paltry matters that ever occupied the attention of Parliament. He (Mr. George) had had the honour of being Crown Prosecutor for a number of years, and he knew that it was the uniform practice for the Clerk of the Crown to have printed or written forms of oaths to be administered to witnesses of different religious persuasions, and of the sentence of death. Any one who had heard sentence of death pronounced in a case of murder knew that it was a long and complicated series of sentences—the omission of any one of which would invalidate the sentence—not only indicating with great minuteness where the criminal was to be executed, but directing that he should be taken back to gaol, pointing out the time and place of the execution, and also, in a subsequent part, stating that the body of the prisoner was to be buried within the precincts of the gaol. Why, no Judge who ever sat on the bench, whether old or young, would venture to pronounce from his own recollection a long string of formal phrases, each of which was essential to the validity of the sentence, but would take them from some written document. And if, in that case, the paper had in the ordinary course been laid before the Lord Chief Justice, it would have been read from end to end; but from the accidental circumstance that the day for the execution had to be fixed, a point of law having been raised at the trial, and it being doubtful when the Judges could meet to determine it in the Court of Criminal Appeal, a discussion arose between the Judge and the officer of the Court as to the date that should be filled in. From that accidental delay there might have been a momentary hesitation as to the delivery of the rest of the sentence; but he understood from parties who stated that they had it from the Clerk of the Crown himself, that in reading the latter part of the sentence directing that the body of the prisoner should be "buried" within the precincts of the gaol, the Judge inadver- 810 tently, in the dusk of the evening, used the word "interred" instead of "buried." If that was the fact, the Attorney General for Ireland, instead of saying that the charges brought forward in reference to that trial were substantially correct, and thereby inferentially giving the sanction of his high position to many things which he probably did not intend to sanction, would have done better if he had distinctly stated what his own recollection was as to the simple facts that had occurred, without offering any expression of opinion. Then the House would have been able to judge whether a transaction which had been magnified from a miserable molehill to a mountain ought ever to have been brought before it. For himself, he had known Judges of great eminence, but far younger than the Lord Chief Justice of Ireland, make similar slight mistakes in delivering a sentence; but he had never heard that such a trivial error, especially where it had been corrected on the instant, was afterwards made the ground of an impeachment. The Solicitor General for Ireland had rather dexterously sought to divert the war from the one side to the other in dealing with what fell from the right hon. Member for Dublin University. The letter which had been read from one of the jury did not refer in the slightest degree to the incident at the passing of the sentence. It recapitulated what took place in the presence of an intelligent juror, as the writer evidently was, stating his general opinion of the conduct of the Judge throughout the case; but it did not pretend to go into any details as to a trivial matter which possibly no human being in the court but the Clerk to the Crown, the Attorney General, and the Lord Chief Justice observed. One highly respectable barrister, Mr. Battersby, had stated to himself that though he sat as near to the Bench as he could without being upon it, he saw nothing of the incident, nor did anything occur at that time to attract his attention or to lead him to suppose that anything unusual had taken place. It was absurd to suppose that the reputation of the great and eminent man who presided with such ability at that trial, and whose judgment had been unanimously confirmed by the Court of Appeal, would be affected by a miserable story of that kind, and it was much to be regretted that so trivial a matter had ever been brought under the notice of Parliament.
§ MR. S. B. MILLER
said, that there 811 was only one matter on which he wished to trouble the House. The hon. Member for Cork had asked who Mr. Batters by was, and he thought it right to state that he was a Queen's Counsel of some twenty years' standing; that he was senior Crown Prosecutor on the circuit referred to, and that in the absence of the Attorney or Solicitor General it would have been Mr. Batters by's duty to conduct the prosecution in question. Unless he were an eminent member of the Bar, that gentleman would not find himself in the position of having to conduct the Crown prosecutions on that circuit. As the Solicitor General had referred to his own personal observation in connection with that case, it was only fair that the House should again hear Mr. Battersby's letter read. He had himself received a letter from Mr. Battersby, dated May 9, in which he said—It seems to me that the Attorney General and I differ in our recollection of the occurrence at Tullamore. Mine remains unaltered.Now, in his previous letter of the 2nd of May, Mr. Battersby said—I have spoken to the Deputy Clerk of the Crown of the King's County, and from what he says, and my own recollection, the occurrence at the assizes was thus:—The Deputy Clerk of the Crown always has in a book before him entries of the different forms of oath and of the form of sentence in capital cases, (fee, and from the first circuit the Chief Justice went to the present day, whenever a prisoner was to be sentenced to death a copy of the formal words of the sentence, with a blank for the day of execution, was invariably placed before the Judge on the Bench. In the case in question, during the address of the Chief Justice to the prisoner, it occurred to the Judge when he approached that part where the day of execution is named, that, in consequence of a point being saved for the Court of Appeal, it became necessary, instead of the usual time, to fix a day after the Dublin Commission, which was then close at hand, and sufficiently remote to enable the other Judges to attend in the Court of Appeal, and although he had previously determined on the day, he had not any memorandum of it, and was obliged to refer to an almanack, which occasioned some delay. I have no note of the trial, and nothing occurred at the time to attract my attention to any defect in the conduct of it so as to fix it on my mind.He had only one other observation to make. He must express his regret that this matter had not ended with the communications made to the House by the Home Secretary and the Chief Secretary for Ireland. The Chief Secretary gave a reply which was becoming to his office to the question that was put to him. Discussions on these personal matters were always distasteful. In the year 1834, when the case of Mr. Baron 812 Smith was brought before Parliament, the late Sir Robert Peel said—He denied the wisdom, the prudence, the justice of arraigning a Judge unless upon some charge of personal corruption, of gross and grievous neglect of duty, warranting his removal from the Bench."—[3 Hansard, xxi. 744.]In which observations he most fully concurred.