§ The EARL of CARDIGAN
said, that in rising to put the question to Her Majesty's Government of which he had given notice, he should take the liberty of addressing a few observations to the House. His question had reference to the intentions of Government with regard to the prosecution of certain priests connected with riotous proceedings at the late election for the county of Clare; and, at the same time, he should move for copies of a correspondence which was supposed to have recently taken place between the noble Earl at the head of Her Majesty's Government and certain Roman Catholic Gentlemen, with reference to their resignation of office in Her Majesty's Government. It appeared to him that the question of interference on the part of the priests at the late Clare election afforded a fair opportunity to submit to the Government whether it was not expedient that the law with regard to the conduct of troops called out to assist the civil power, should be more defined and rendered less ambiguous than it was at present; for it seemed that although for many years the law of the case, as laid down by those great Judges, Lord Ellenborough and Chief Justice Tindal, had obtained, yet on a late occasion, an Irish Judge (Mr. Justice Perrin) delivered a decision which completely reversed the law as it previously stood; and which decision, if acted upon, would certainly place the military, on all future occasions, in a most embarrassing, if not dangerous, position. He would, however, pass to a more important subject, and would ask the noble Earl opposite (the Earl of Aberdeen), what were the intentions of Government with regard to the prosecution of the two Popish priests who had been reported by a Committee of the House of Commons to have exercised an influence at the late election for the County of Clare which was destruction of the freedom of election. He thought their Lordships would be anxious to know whether the solemn declaration made by the noble Earl at the head of the Government, when he said that "whether the individual were soldier or priest, peer or peasant, no matter who the man was that transgressed the law, legal proceedings should be taken against him with the strictest impartiality"—he thought their Lordships would be anxious to know whether that declaration would be adhered 700 to or not. Their Lordships were doubtless aware that some of those unfortunate soldiers engaged in the Six-mile Bridge affair, had been, by the ingenuity of the Irish Attorney General, twice put upon their trial, and twice acquitted. Therefore, he was anxious to know whether the Popish priests—who had excited the outrage against the military, and who had been the cause of having them subjected to severe penalties, and placed in the felons' dock as murderers—would be dealt with? It was of the greatest importance that they should have a clear and undoubted answer from the Government with regard to the course they were inclined to adopt. That importance was enhanced by the course taken by the noble Lord the leader of the House of Commons; who had lately broached principles of so sound a Protestant character as to entitle them to the admiration of the people of this country. Well, after that declaration by the noble Lord—who possessed talents, experience, and character, and who 'had more than once held the high position of Prime Minister—a letter appeared, of which he (the Earl of Cardigan) was anxious to see an authentic copy, which stated that, whatever might be the opinions of the noble Lord (Lord John Russell), they were not shared in by the majority of his Colleagues. Now, by that it appeared a want of harmony and a difference of opinion prevailed in the Cabinet; and therefore he thought they were the more entitled to a clear and positive answer to the questions which he was going to put. He could not help thinking that the present was, above all other moments, the time most necessary to give a clear explanation to the Protestant community of this country; because, in his humble opinion, he did not think the Protestant Church Establishment of this country and Ireland was ever surrounded with so much danger as at present. The Legislature had lately passed a measure which appeared to him the most dangerous and injurious of any he had ever known to the institutions of this Protestant country. They had broken down for the first time that barrier which surrounded the Protestant Church Establishment of this country, by authorising the secularisation of Protestant Church funds to the alien purposes of State endowment—perhaps for the endowment of hostile religions. Under all these circumstances he hoped the Government would 701 see the necessity of dealing with this practice of priestly interference in public elections. Because, unless some decisive course was taken, it was perfectly clear that the Popish priests, if permitted to use their influence, would prevent the election of any persons except such as were sworn to the destruction of the Protestant interests of this country. He trusted their Lordships would not be told that the local Government of Ireland had taken the matter into consideration, and were preparing to come to a decision upon it. He trusted it was well considered by Her Majesty's Government, and that the noble Earl opposite would be able to give a decided answer as to the course to be adopted. The question he had to put was—whether it was the intention of Her Majesty's Government to prosecute the two Roman Catholic priests implicated in the riots at the last election for the county of Clare? And his Motion was—That there be laid before the House a copy of a correspondence which lately took place between the Prime Minister and certain Roman Catholic Gentlemen with reference to the resignation of their offices.
§ The EARL of ABERDEEN
said, their Lordships might, perhaps, be aware that in a very short time—he believed next week—a fresh election would take place for the county of Clare. How far the proceeding of the noble Earl might affect the order and tranquillity of that election, he would not undertake to say; but he hoped that it would have no tendency to disturb that order and tranquillity, however excited the state of the country might be. Of this, however, he had the satisfaction of being able to assure their Lordships, that the precautions taken by his noble Friend at the head of the Irish Government were such as to insure tranquillity. The noble Earl seemed to imagine that some difference had taken place in the intentions of the Government in respect of the prosecution of the priests. There had never been any concealment on this subject, or unwillingness to answer questions. The matter remained now exactly as it did in the month of March last, when it had been fully discussed in that and the other House of Parliament. The Government had then declared and given reasons why they did not consider it expedient to institute any prosecutions against the priests to whom the noble Earl referred; and the Report of the Committee of the House of Commons did not affect the question in the least degree. 702 The Committee of the House of Commons reported respecting the conduct of those two priests; but that Committee did not, as it might have done—or what any Member of the other House might have done— move that the Attorney General be directed to prosecute those priests for interfering with the freedom of election in that county. The case, therefore, was not altered at all so far as the Government were concerned. So much was this the case, so clearly was it understood and admitted that the prosecution of these priests would be most improper and unwise, that the learned Gentleman in another place who accused the Attorney General for Ireland, with an acrimony rarely observed between members of the profession, had never thought of recommending the prosecution of these priests; and when they were urged by another learned Gentleman to assert that if they were in office tomorrow they would proceed against those priests, they had not had a word to say. No man could venture to do anything so unwise or so imprudent as to suggest such a course as was proposed by the noble Earl. The noble Earl had referred to the declaration which he (the Earl of Aberdeen) had made in that House, and which he was quite ready to repeat—that it was the intention, and the firm intention, of the Government to administer justice in Ireland with the most perfect impartiality, whoever might be the parties implicated, or whatever might be their rank. When he was asked whether it was the intention of the Government to prosecute those priests, in the first instance he had answered that it was; and although it was a matter of comparative unimportance whether a priest more or less was prosecuted, yet, as he thought it of very great importance that the conduct of Her Majesty's Government should be free from all suspicion, he would now state the reason why he had said that such was the intention of the Government. On the day preceding that on which the question was put, the matter was considered fully by the Cabinet, and they came to the unanimous opinion that both the soldiers in question and the priests should be prosecuted. Then, knowing as he did that his noble Friend the Secretary for the Home Department had on the previous day given instructions that this course should be pursued, their Lordships would forgive him if he said that he was entitled to give the answer which he had given. Well, those instructions were forwarded to the 703 Lord Lieutenant; but he, exercising that sound discretion with which every person invested with such high responsibilities must be supposed to act, and consulting with the law authorities of the Crown in Ireland, determined—not from any political motive, but from reasons founded on professional grounds, and from regard for the due administration of justice—that the prosecution of those two priests would not be advantageous for the due and proper administration of justice; and, desirous as he (the Earl of Aberdeen) had been to carry out the pledge which he had given, he could not help assenting to the propriety of the views which were advocated by his noble Friend and the law officers of Ireland. Now, as the noble Earl had introduced the subject, he (the Earl of Aberdeen) thought it would not be an unfitting opportunity to give their Lordships a narrative of the case to which he referred, and of the reasons which induced the Irish Government to deviate from the instructions which had been forwarded to it. The difficulty of the question, both as regarded those under accusation and the priests, had been greatly increased by the course pursued by the late Attorney General for Ireland—he must say the blunders committed by that learned Gentleman. It might appear a strong thing for an unlearned person like himself to talk of the blunders of a Gentleman learned in the law; but when he saw the opinion which had been pronounced by the Court of Queen's Bench, he felt himself entitled to say so. Their Lordships were aware that this riot took place in the month of June or July last, in the county of Clare; that the soldiers were compelled to fire; and that seven or eight persons were killed. A coroner's inquest sat on the case, and the jury brought in a verdict of wilful murder against the soldiers. This verdict was entirely unsupported by sufficient evidence; that wa3 the opinion of the Attorney General, and, had he thought proper, he might have put an end to the prosecution by entering a nolle prosequi, and so have stopped all proceedings. But what did he do? He transported the case to the Court of Queen's Bench, and called on the Judges of that Court to quash the verdict in consequence of the insufficiency of the evidence produced. But what did the Court say? They considered the matter very fully, and heard it argued at great length, and with much learning, and they came to this conclusion. They said—"We are 704 called upon to quash the verdict, not from any alleged misconduct of the coroner, but from the alleged insufficiency of the evidence. But no reported case has been found, and neither in this country, nor upon search in the Crown offices in England, can any instance be found of the fact of the actual exercise of such jurisdiction to quash an inquest for insufficiency of evidence. Having no precedent for our guidance, we are bound to consider the consequences implied in such a case; and to do so not only in regard to the individuals concerned, but also as regards the interests of public justice and the due administration of the law." That decision was, he thought, practically a censure upon the learned Gentleman, who made an application for which there was no precedent, and which was accordingly rejected by the highest authority. This was the state in which the case stood when the learned Gentleman went out of office, and handed over the matter to his successor. Now, how did the case stand after this judgment in the Court of Queen's Bench? Why, to a certain degree, the verdict of the coroner's jury was confirmed by that judgment. The Attorney General of the present Government, then, finding the question in this state, thought that the best course would be, not to put the soldiers on their trial at once, but to prefer bills against them before the grand jury. He did so, and their Lordships would admit that in the position in which the case was at the time he could do nothing less. But then came the question of the priests. Now, one of the priests had been a principal witness against the soldiers on the inquest; and he was, therefore, brought as a witness before the grand jury who had to inquire into the matter. It had been said that the Government were wrong in bringing this priest as a witness; but what would have been said if he had not been brought forward? Surely it would have been said that the most important testimony had been suppressed. But this priest was under a sworn information for a riot. Well, but that was a course which had not been adopted until some time after he had given evidence on the verdict. It was, moreover, a course that was open to much suspicion, for it was rarely that a cross prosecution of this kind was got up. The priest was sent as a witness before the grand jury, who, as might be expected, ignored the Bill against the soldiers; and he (the Earl of Aberdeen) had no doubt 705 that the grand jury did perfectly right. After that the Attorney General merely put one of the soldiers on his trial, as a matter of form; no evidence was brought, and the acquittal of all was thus secured. But then it was said, "Why not prosecute the priests?" Why, for this reason, it was contrary to the manifest dictates of justice and universal practice that a man who had given evidence against parties who were placed on their trial should be turned into a culprit and tried himself. Such a course would be perfectly unprecedented. It was said this was part of a system of yielding to the influence of the Roman Catholic priests in Ireland. He could not help smiling at the absurdity of such a notion. However, if the noble Earl had any thirst for the prosecution of priests, he could be indulged in the sport, for at the last assizes several Popish priests were prosecuted for offences more or less of a similar nature, and undoubtedly as many would be prosecuted as laid themselves open to it. He did not dispute that the noble Earl was a very zealous and devoted champion of the Protestant faith. At the same time, he hoped the noble Earl would give him credit for not being entirely indifferent to the welfare of the Protestant Church and faith. He did not profess to have the same ardour as the noble Earl had shown, but he hoped he had quite as much sincerity. Before leaving this branch of the subject, and in order to show that their Lordships ought not to adopt too hastily the notion that the Government wished to yield to the influence of the Popish priests, he might recall to their recollection an accusation made last week by a noble Marquess opposite against the Lord Lieutenant of Ireland for truckling to priestly influence by releasing from prison several persons who had been convicted of certain offences. On that occasion the noble Earl who stood at the head of the late Administration was obliged to confess—what no doubt was not a very pleasant confession for him to make—that there was not the least foundation for that accusation; and their Lordships might believe that the charge of yielding to priestly influence was equally groundless. He came now to the subject of the correspondence which the noble Earl requested him to produce. Of course, it could not be with the least desire of concealment that he objected to the production of that correspondence, because it had already been published; but he thought its production a precedent that 706 was open to great objection. In the first place, it was not a correspondence of a public nature—it consisted of communications which had passed between himself and another Member of the Government, and which the latter had thought fit, for his own satisfaction, to make public; but it was not in the nature of such an official correspondence as could reasonably be called for by a Member of that House. As for the substance of that correspondence, it was a matter which could more fitly be dealt with in the other House; but there it was not thought worthy of occupying attention, save in the way of a passing jest on the part of an Irish Member. Now, no doubt, he had the highest admiration and the greatest personal regard for his noble Friend who was the representative of the Government in the House of Commons; but that was no reason why he should bind himself to adopt his opinions upon all subjects, or the reasons by which he arrived at the same conclusions with himself upon public matters in which they concurred. If, indeed, they had differed in their opinion as to the measure then under consideration, that would have been a serious matter; but there was no cause for wonder in the circumstance that they should have differed in their reasons for the same mutual conclusion. He had no doubt that the noble Earl opposite and his alter ego in the other House, had not always agreed upon all matters, and indeed upon this very subject; and with reference to one of the gentlemen in question, he thought there had been some little difference of opinion between them. The subject under consideration at that time was the preservation of the temporalities of the Irish Church. His noble Friend and be perfectly agreed in desiring to preserve those temporalities. His reason for desiring to do so was the piety, learning, and exemplary conduct, and the legal right of the parties interested. He did not think it was any reason for the preservation of the temporalities of the Irish Church whether the Roman Catholic priests were disloyal or not, or whether or not they were engaged in a Jesuitical conspiracy against the liberties of mankind. That was not a reason which influenced him. It might have influenced his noble Friend, as well as others; but at least they agreed—cordially agreed —in the result at which they both arrived, and that was as much as could be expected from the Members of any Government. He did not know that there was anything else 707 worth answering in the speech of the noble Earl. He had told him that it was the intention of the Government to adhere to the course which hon. and learned Gentlemen elsewhere never thought of impugning—namely, the non-prosecution of these priests. He said nothing of the propriety of their prosecution at the time; but now nobody ever thought of such a step. Four months ago he expressed his opinion upon the subject in that House, and he saw nothing in the Report of the Committee of the House of Commons—who, by the way, were the proper parties to deal with the matter—which should at all change the position occupied by the Government. As there seemed to be a disposition on the opposite side of the House to suppose that there was an unfair leaning, on the part of the Government, towards the Roman Catholic priests and party in Ireland, he again rejected, with the utmost disdain, the notion that there was any foundation for such a charge. He should never be afraid to do justice to or upon a priest because he was a priest, nor should he allow himself to be influenced by such considerations as those to which the noble Earl had adverted. He hoped, that, although he professed to be as sincere a friend of the Protestant Church as the noble Earl or any one else could be, his own private religious convictions and feelings would not be incompatible with the utmost love and charity for his Roman Catholic fellow-subjects. He had always maintained that sentiment, and would always endeavour to maintain it, despite the groundless and absurd imputations which might be thrown out against him.
§ The EARL of DERBY
said, that with respect to the correspondence which formed the ground of his noble Friend's Motion, he apprehended that that subject had been introduced by his noble Friend rather for the purpose of placing himself and the House in order in discussing the matter, than from any desire that their Lordships should obtain papers which they already possessed, and with the contents of which they must already be familiar. The production of the papers was not necessary to show that between the Members of Her Majesty's Government, and more especially between the noble Ear lat its head, and the noble Lord the leader of the other House, there prevailed a very wide difference of opinion, however they might act together, on the particular question to which the noble Earl had referred. Nevertheless he should say that that corre- 708 spondence was one of the most singular that it had ever been his lot to behold. It was not very usual to see Gentlemen resigning office on account of the language held by the principal Member of the Government in one House; and it was still less common, after their resignations had been tendered, to see the First Lord of the Treasury repudiating, and rejecting, and apologising for the language of his Colleague, and humbly entreating those Gentlemen that, inasmuch as he and other Members of the Cabinet did not share in the opinions of his noble Colleague—humbly entreating them to be kind enough to withdraw their resignations. He was happy to think that that was not an ordinary, and he should further say that he did not think it was a creditable, correspondence. But with respect to its production he should say, that as they had all had an opportunity of reading it in the newspapers, he considered that that was a matter of the most entire indifference; and he presumed that his noble Friend had no desire to press his Motion. He should not have risen at all upon that occasion had it not been that he felt it incumbent on him to follow the noble Earl in some parts of the extraordinary statement he had made, and he hoped he might be permitted to add, of the not less extraordinary arguments by which he had supported that statement. He rejoiced to find that Her Majesty's Government had at length thought it right to assign the reasons for their not having prosecuted not only the two priests, but also the other rioters included in the informations which had been taken at the time. His noble Friend, on a former occasion, when he had moved for the production of the papers in the Six-mile Bridge case, had abstained from entering into the merits of the question; and to the best of his (the Earl of Derby's) recollection Her Majesty's Ministers had at that time invited a discussion of the subject at a future day, after the papers should have been submitted to Parliament. There was a circumstance which gave peculiar fitness to the present moment for entering into that discussion; and that circumstance was the fact, that whereas there might have been previously some question how far the priests had, in point of fact, been guilty of the offence imputed to them, that imputation had received a strong corroboration from the fact that the transactions connected with the election in question having been referred to a separate and 709 wholly distinct tribunal, that tribunal receiving evidence on oath, had actually gone out of their way for the purpose of declaring that the priests in question had been guilty of the offence of inciting the people to riot at the last election for the county of Clare. Fortified, therefore, by the evidence taken before that Committee, and the judgment at which they had arrived, his noble Friend came forward, and, adverting to the previous course pursued by the Government, impugned the justice, the policy, and propriety of that course. He must be permitted further to say, that, notwithstanding the noble Earl's contemptuous language about the disdain with which he treated a certain assumption— he must be permitted to say—and the noble Earl must be perfectly aware that among a very large portion of Her Majesty's subjects there prevailed a belief—a belief which he confessed was not wholly unparticipated in by himself—that there existed on the part of some Members of Her Majesty's Government a desire to lean unduly in favour of acts committed by the Roman Catholic priests, and the Roman Catholic population of Ireland, who were under the influence of these priests—to look with extreme indulgence on any excesses into which they might be led, and to carry on that most dangerous of all dangerous experiments, the experiment of conducting the administration of Irish affairs through the Roman Catholic priests. Even at the risk of exposing himself to the disdain and contempt of the noble Earl, he should frankly say that he believed that was the leaning and tendency of no inconsiderable portion of the Members of the Government, and if the noble Earl compelled him to say so, he should include in the number the noble Earl himself. The noble Earl had entered into what he had called a narrative of the proceedings connected with the trial of the soldiers in that case, and the non-trial of the priests, and the noble Earl had told them that he would he able to prove that he had at all times been as ready to do justice on a priest as by a priest. He wished the noble Earl had been able to show that he had at all times been equally ready to do justice upon priests. But he (the Earl of Derby) would venture to say that the course which had been pursued under the authority of Her Majesty's Government in this case was inconsistent with that declaration, although he did not hesitate to add that he believed the noble Earl had sincerely stated that it 710 was his wish to act impartially with regard to all classes of people in Ireland. The noble Earl had told them that the day before he had made his statement to the House upon that subject, there had been a consultation in the Cabinet with respect to those prosecutions, and that they had come to the unanimous determination that it was right to prosecute the priests, and, together with them, as he (the Earl of Derby) presumed, the other rioters who had been involved with them in the transaction. But the case had, according to the noble Earl, been referred to the Lord Lieutenant of Ireland, and that noble Earl, in the exercise of that discretion which nobody would seek to withdraw from one in his high position, had thought fit to pursue a course of his own in the matter. Now, if they were to believe, as, of course, they did, the Attorney General of Ireland, the course of not prosecuting the priests was taken, not only not under the authority, but even without the knowledge, of the Lord Lieutenant; for he declared in the court, on the trial of the soldiers, that for the course which had been adopted he was himself individually and solely responsible; that he acted on his own authority and discretion; and that no human being, up to that moment, had known of the course he was about to take. He (the Earl of Derby) had great respect for the discretion of an officer so responsible as the Lord Lieutenant; but he must he allowed to comment freely on the discretion of the Attorney General. He must be allowed to say, that he did not think it right that the responsibility which had been claimed for himself by the Attorney General, should be thrown upon another quarter; neither did he think it right that, after the Minister, having taken the unanimous opinion of the Cabinet, had announced to Parliament the intention of pursuing a particular course, the adviser of the Crown in Ireland, on his own discretion, should set aside the unanimous decision of the Cabinet; and, least of all, that that decision having been so set aside, the noble Earl at the head of the Government should not come down to Parliament and take the first opportunity of telling them that his pledge had not been acted upon, and would not be acted upon, and giving them the reason why. Before proceeding further, however, he should observe, that the noble Earl had certainly surprised him when he had said that the late Attorney General for Ireland had commented on the course which had been 711 pursued by the Government in terms of unusual acrimony. He was not aware any terms of unusual acrimony had been used by his right hon. and learned Friend. [The Earl of ABERDEEN here made an observation.] He should be glad to find that the noble Earl disclaimed any intention of imputing any such language to his right hon. and learned Friend; and he was sure that any one who knew that Gentleman must be aware that in his whole nature and character there was not a single particle of acrimony, and that no one had ever heard him use a single unkind expression with regard to any human being. But the noble Earl had said that the course of the Government in that matter had been embarrassed by the proceedings of their predecessors. Now, he (the Earl of Derby) was at a loss to conceive any ground for such a statement, and he should observe, that the noble Earl had subsequently corrected himself and had told them that the result of these proceedings had been to leave matters precisely on the same footing as they originally were. The noble Earl had commented on the course which had been pursued by the late Attorney General in making application to the Court of Queen's Bench to quash the verdict of the coroner's jury against the magistrate and the soldiers. Now, the fact was, that there was only one opinion that the finding of the inquisition in that case was contrary to law as well as to the evidence; but the Court declined to accede to that application, and they declined, not upon the ground that the evidence was or was not sufficient, but solely upon the ground that they had no jurisdiction to interfere in a ease which did not involve any flagrant violation of the duty of the coroner. Under all the circumstances of the case he did not find fault with the Government for having sent up to the grand jury the bills against the magistrate and the soldiers; for perhaps, considering all the circumstances of Ireland, and considering, moreover, that if the Government had not taken it upon themselves, the prosecution might have fallen into the hands of parties who would have been less scrupulous; but he felt bound to say, that their subsequent course of proceeding was altogether indefensible, and, moreover, that that course of proceeding at the time, and under the circumstances, combined with their appointment of the law officers of the Crown, had had a tendency to confirm the belief to which he had adverted, that the Roman 712 Catholic priests were a set of "chartered libertines," who might take any course which they might think fit, without any fear of being visited with the consequences which would attach to the rest of their fellow-subjects. The noble Earl had said that the informations against the priests and the other rioters had not been taken until after the verdict against the magistrate and the soldiers had been found by the coroner's jury; and he had added, that those informations had been got up as a sort of cross case, for the purpose of obstructing the administration of justice. But the real reason for not having taken the informations at an earlier period, was directly the reverse of that which had been stated by the noble Earl. The real reason for that course was, that it was thought desirable that nothing should be done to prejudice the finding of the jury before the conclusion of their labours. Let the circumstances of the case be remembered. Let it be remembered that in that case there had been a very severely contested election; and let it be remembered that at that election the main question on which the whole proceedings had turned, had been the power which was or was not to be exercised in Parliament by the Roman Catholic priests, through their "representatives" in the House of Commons. He said, through their "representatives," because one of the Gentlemen who had been returned under their influence was supposed to have stated, with more candour than discretion, that in point of fact, in the case of Roman Catholic constituencies, when a writ was sent down for the election of a Member, that writ was, in point of fact, addressed to the only real and true constituency, the bishops and clergy of the Roman Catholic Church. In the course of the election proceedings, riots and disturbances took place; voters going to the poll were attacked by large mobs; the soldiers who had been sent to protect the voters were treated with disgraceful violence, and received serious injuries in consequence; it was alleged, and not denied, that at the head of the mobs who so attacked the Queen's troops were two Roman Catholic priests, who by their gestures and voices incited the mob to violence; that in consequence of the violence so excited by these Roman Catholic priests, a most lamentable loss of life took place, for, the soldiers having fired in self-defence, the result was that a considerable number of persons were shot; and the case having necessarily come 713 before a coroner's jury, that jury returned an extraordinary and monstrous verdict of murder against the soldiers. The noble Earl had promised to tell their Lordships the reasons why the original intention of the Government with regard to prosecuting the priests and the other rioters had not been carried out; but the fact was, that the noble Earl had confined himself to the reasons why they had not prosecuted one particular priest. And here, before going further, he begged to protest against the monstrous doctrine which the noble Earl had promulgated—namely, that if once the name of a person was placed, necessarily or unnecessarily, on the back of a bill, and went before a grand jury as a witness, that person, whatever might have been the crimes which he had committed, was to be held for ever after indemnified from the consequences of those crimes. But he had no hesitation in expressing his belief that the doctrine which had been laid down by a high authority, with respect to the duties of soldiers engaged in enforcing the law, rendered it necessary that the real character of these duties should receive some further explanation, and that soldiers ought not to be exposed to the risk of being dismissed, on the one hand, for disobeying the orders of their officers; while they were exposed, on the other hand, to the risk of being found guilty of murder if they obeyed those orders. Informations, as he had already stated, had been taken against two Roman Catholic priests, and seven or eight other persons, for their conduct during that riot. Why, he would ask, had not those priests been prosecuted? The noble Earl had told them that proceedings could not be taken against one of those priests, because he had appeared before the grand jury as one of the witnesses against the soldiers, and it would be most unfair to bring himself afterwards before the same jury. But it frequently occurred in our courts of justice that a man who appeared as a witness against another, was afterwards put himself on his trial. He would ask the noble Earl whether he was prepared to maintain that if the companion of a burglar was shot by a person whose house was attacked, the burglar who escaped with his life might evade the justice of the law by calling in a policeman, charging the owner of the house with murder, and afterwards appearing as a witness against him? The noble Earl could not surely put forward so extravagant a doctrine. But why had not the 714 second priest, who had not been summoned at all before the grand jury, been prosecuted by the Government? That second priest, the Rev. Mr. Clune, had, according to the informations which had been sworn against him, instigated the mob who had been engaged in the riot. [The noble Earl here read passages from the informations in proof of this statement.] He would next proceed to the evidence in the case of the Rev. Mr. Burke. [The noble Earl then proceeded to read several extracts from the informations which had been sworn in the case of the Rev. Mr. Burke, tending to show that that gentleman during the late Clare election had incited the mob to drag a party of voters off the cars upon which they were seated.] Now such were the informations which had been sworn against those two clergymen —informations which clearly proved, if any credence was to be given to the parties by whom they were sworn, that those two gentlemen were at the head of the whole disturbance which had led to that lamentable contest in which so many lives had; been sacrificed. But there were also several other persons against whom informations had been sworn as having been implicated in the disturbance to which reference had so frequently been made. He would, however, mention the name of only one of those parties—a person named M'Grath. It was alleged in the informations that several attempts had been made by M'Grath to pull the voters off the cars upon which they were being conducted to the polling booths, and that a knife had been seen in his hand at the time. i Now, while the late Government were in office information had been given that M'Grath had been preparing to leave the country, in order to escape the prosecution which he knew to be impending over him. This intention had, however, been discovered; he had been placed in custody, and in custody he had remained until the time of the Clare assizes. What was the course which was subsequently pursued with respect to this person? No steps whatever were taken to proceed upon the informations which had been served against him; but, as in the case of the priest Burke, he was adduced as a witness against those soldiers who were indicted for murder, and had thus been made the instrument of bringing innocent men into peril. He (the Earl of Derby) must say that he altogether repudiated the doctrine which had been advanced by the noble Earl op- 715 posite, namely, that those parties having been brought up as witnesses against the soldiers, were entitled to obtain impunity with reference to the counter prosecution which ought to have been carried on against themselves. He should now advert to the course which had been adopted with respect to the soldiers and the magistrate. He must say that, it having been determined in the first instance to prosecute the priests in question, the proceedings which had been subsequently taken were the most improper and the most entirely subversive of justice of which it had ever been his lot to hear. The bill which had been sent up in the case of the soldiers to the grand jury had been ignored —and what course had the Attorney General pursued? Had he at once made application to stop all further proceedings in the case? Not at all. The course which, in his (the Earl of Derby's) humble judgment, that learned Gentleman ought to have adopted, was to apply for the immediate release of those parties against whom no bills had been found by the grand jury, and to proceed with the prosecution of the criminal information which had been filed against those parties, whose guilt might be to a great extent inferred from the very fact that the grand jury had ignored the bills against the soldiers for murder, thereby in effect declaring that there was a justification for their conduct, which could only be established by the supposition that the other parties implicated in the transaction were, to some extent, guilty of the proceedings which had been laid to their charge. Well, the Attorney General had, however, carried on the proceedings until the following day, and upon that day he had ordered the soldiers to be brought up, under escort, through the streets of Ennis, which were crowded with an excited mob, to take their trial. He empannelled a jury—he had, in fact, one of the soldiers placed upon his trial, and had then made a lengthened address, the substance of which he (the Earl of Derby) should advert to very briefly. Up to the last moment neither the soldiers nor the magistrate were aware that there was not going to be a bond fide prosecution. The Attorney General having opened the case, had thought fit, upon the occasion in question, in the first place to repudiate altogether the evidence which had been given at the coroner's inquest, announcing that upon that evidence he could have no chance of 716 obtaining a conviction, and consequently that the bill which had been sent up to the grand jury had been properly ignored —the learned Gentleman then proceeded to make a lengthened speech, in which there was no topic introduced which was not calculated to aggravate and inflame the feelings of the people; in which there was hardly a charge he did not make against the soldiers, although he had no intention whatsoever of attempting to substantiate those charges by evidence. He (the Earl of Derby) must say that the course which had been taken by the hon. and learned Gentleman upon that occasion was one which, in his opinion, was most unprecedented. Those very men, who for months before were obliged to be guarded by policemen against the violence of the mob, were placed in the dock, while that very mob were listening to the violent and inflammatory harangue of the Attorney General for Ireland. The conduct of that hon. and learned Gentleman was such as he (the Earl of Derby) believed was unheard of in law, unheard of in the course of any proceedings in connexion with which justice was pretended to on dispensed. That the learned Gentleman should have made the attack which he did make upon men against whom he had no evidence to produce, upon which to substantiate their guilt—against men who had no means of making a reply—that he should have declared, upon the frivolous and absurd pretext that one of these priests had been sent as a witness before the grand jury, that neither of those priests, who had been guilty of outrage and of violence which had led to the slaughter of several of their fellow-subjects, should be prosecuted—was to take a course which was highly injurious to the maintenance of confidence upon the part of Her Majesty's subjects in the due and impartial administration of justice. It was a course which would tend to induce the people of this country to believe that there was one law for those whe stood up in defence of their rights and for the protection of their lives and properties, and another, much more lenient, for those who, under the abuse of the disgraceful and perverted authority of their spiritual guides, were led into acts of violence, for the purpose of endeavouring to prevent and to overthrow the due administration of the laws. The noble Earl opposite and his Colleagues might take what precautions they pleased for securing a peaceable election for the county of Clare; but let 717 them depend upon it that the precautions which with their best intentions they might be able to devise, or which with their utmost vigour they might have the power successfully to carry into effect, would be as nothing when, upon the other side, there remained to be thrown into the balance facts to demonstrate that the perpetrators of previous outrage and previous violence had been allowed to escape with impunity. He should not, he felt, be discharging his duty as an independent Peer of Parliament, if he did not say, that so long as the noble Earl opposite and his Colleagues acted under such counsel as that which had been given to them by their law advisers in Ireland with reference to the course taken at the trial of the soldiers at Ennis—so long-as they continued to justify the line of conduct which had been adopted by their Attorney General upon that occasion, the declarations which might be made in that House or elsewhere, however sincere or energetic they might be, would be of no avail, because they would be contradicted by the outrageous conduct of the noble Earl's supporters.
The LORD CHANCELLOR
said, that something had transpired during the present debate which could not but be satisfactory to himself and to his Colleagues. It would be recollected that when the noble Earl who introduced this Motion brought the subject forward on a former occasion, he made it a charge that the Attorney General for Ireland had so far neglected his duty as to send up a bill to the grand jury for the purpose of raising a prosecution against those soldiers to whom allusion had been so frequently made. That was the very ground of complaint. Now, they had had it from the noble Earl who had just sat down, that so far from that being a just subject of complaint, it was the only course which, consistently with his duty the Attorney General could take, and that he was entirely absolved from all charge for what he did. That admission was at all events satisfactory to himself (the Lord Chancellor) and must be so to his Colleagues. He thought the noble Earl could not have had any legal adviser at his side when he attributed blame to the Attorney General for Ireland for having taken the course he did upon the occasion of these prosecutions. The noble Earl seemed to think that it was a scandalous thing when the grand jury ignored the bill, that the Attorney General did not let the matter drop, and order the men to be discharged, 718 instead of having a jury empannelled. But it was necessary that the men should be arraigned, and put in charge, and then be acquitted. If a nolle prosequi had been entered, they would have had an indictment constantly hanging over their heads; no other course, therefore, could have been taken which would have relieved the men from all future difficulty—in short, the step which had been taken by the Attorney General was the only one which would have secured to the soldiers the privilege of being able to put forward the plea of autrefois acquits in bar of any subsequent proceedings. It was of course necessary that the accused should be brought to the court house for trial under proper guards. The noble Earl went on to say, that the Attorney General had made an unfair and inflammatory speech upon the occasion of the trial in question: that was, of course, matter of opinion depending on the real circumstances of the case. If the Attorney General had made a speech of the nature attributed to him by the noble Earl, he (the Lord Chancellor) could only say, that if that learned officer said anything in his. address calculated to excite the mob, he did what was not within his duty. But he (the Lord Chancellor) could not believe that any man, with the education. and feeling of a barrister and a gentleman, could consent to make himself a tool to anything so vile as that of exciting outrage and violence, more especially when he was engaged in discharging the functions of a lawyer and an officer of the Crown. The noble Earl had said it was very important that the duty and position of soldiers on such an occasion, should be distinctly and authoritatively explained. He (the Lord! Chancellor) could not flatter, himself with the notion that anything he could say would be authoritative on the subject. He did not think that it was necessary that the duty of a soldier on such an occasion should be explained distinctly and authoritatively; because for half a century and more the position in which a soldier stood, had been distinctly understood and authoritatively explained. For such purpose there was no distinction between a soldier and a civilian. It was the duty, in case of a riot, for every one of Her Majesty's subjects to exert himself singly, or in combination, to stop that riot effectually with the least possible violence. That applied equally to soldiers as to all other persons placed in a position that enabled them to stop a riot. What effect had that upon 719 the position of soldiers? It imposed it upon them, or rather upon those who commanded them, as an imperative duty, that they should interfere on such an occasion. But it was an imperative duty also to stop a riot at the least possible sacrifice of the lives or limbs of those around them. It was, therefore, peculiarly the duty of the soldier to take care and be guided by that feeling, because in consequence of the efficiency of the weapons placed at his disposal, it was especially necessary that he should act most guardedly and with the greatest care not to do injury to life or limb. That seemed to him to be as good an explanation of the duty of the soldier as the nature of the case would possibly admit. Cases might be suggested where a soldier, acting under the orders of his officer, might, in the discharge of his duty in obeying those orders, and in reference to his duty as a citizen, be placed in a dilemma, because there must be cases where legislation was helpless to give redress to the soldier. It was impossible to define the limit when the orders of a commanding officer were or were not fit to be obeyed. It was the duty of the soldier to obey his officer, and to do that with the least possible cost of life or limb. It being clear that the soldiers were properly prosecuted, although they had only discharged their duty, it must also be admitted that it was perfectly right on the part of the Irish Government to send up the bills to the grand jury. If that course had not been taken, the prosecution would have been left in the hands of those who would have conducted it in a less satisfactory manner. It was right, therefore, that the Attorney General should take it in his own hands. That being so, the Attorney General found himself in this position:—In order to prosecute, it was necessary to send up to the grand jury those witnesses who could give the completest and most satisfactory testimony. If he had not sent up the priest Burke, who was the principal witness, before the coroner's jury, there would have been raised an outcry that the Attorney General had left out the only testimony that would have been effectual for the prosecution. With regard to the question of prosecuting the priests, the fact of Mr. Burke having appeared as a witness, would not undoubtedly have rendered a subsequent prosecution against him an illegal proceeding; but the question was one of expediency. Was it expedient to institute a prosecution against a man whom 720 the Attorney General himself had compelled to go before the grand jury to state the whole evidence respecting the riot? The Attorney General thought not. And he (the Lord Chancellor) thought the Attorney General had good reason for the conclusion at which he had arrived. Under all the circumstances, therefore, a resolution was arrived at that it was better to withhold any prosecution altogether. He did not believe anything new had come out before the Committee of the House of Commons that would make it a fit case for a prosecution. If there had been any such new facts, the Committee would themselves have recommended a prosecution. No such course had been taken; and he could not but think that it would place the Government in a very strange predicament indeed if, not having thought it fit to prosecute at the time when the prosecutions were going on in their natural course, they should now step in, and, without any new light, do that now which they did not think it fit to do when the matter was under investigation. Under these circumstances, the answer to he given to the noble Earl was, that there was no intention to prosecute these priests. That was the answer which his noble Friend (the Earl of Aberdeen) had given, and which was quite consistent with the feelings of every Member of Her Majesty's Government. But if any case not surrounded by all the embarrassments which were present in this case should ever occur, then, indeed, the noble Earl (the Earl of Cardigan) would find that the Government would be perfectly willing to prosecute priest, peasant, or soldier, where they had a good cause against him.
§ The EARL of DERBY
explained: What he had stated was, that the report made by the House of Commons was not a reason why a prosecution should now be instituted, but afforded strong presumptive proof that prosecutions ought to have been instituted against them.
§ The EARL of EGLINTON
said, he was not sufficiently versed in legal matters to know whether the law, as it had been laid down by the noble and learned Lord who had just sat down, was correct or not. He would take it for granted, however, that it was necessary, as the noble and learned Lord had stated, that both the soldiers and the magistrate should have been brought through the crowded streets of the town of Ennis to the court house; nevertheless, he would venture to say that it was by no 721 means a necessary proceeding upon the part of the Attorney General to arraign those parties; that it was not necessary for him to have gone into the prosecution; and, further, that it was by no means necessary for him to have spoken as he had done against men who had it not in their power to say one word in reply. Their Lordships had learned from the speech of his noble Friend near him, that, in addition to the two priests against whom informations had been sworn, there were several other persons, also, against whom similar accusations had been made. Now, as soon as he (the Earl of Eglinton) heard of the affray at Six-mile Bridge, he, in conjunction with his right hon. and learned Friend the late Attorney General for Ireland, directed one of the most able solicitors in that country, Sir Matthew Barring-ton, to attend the inquest. The result of that learned gentleman's investigation was, that he had recommended to the Attorney General that informations should be sworn against nine of the rioters, and against the two priests whose names had been mentioned—not against these priests as priests, but because they, in the opinion of Sir Matthew Barrington, had been two of the ringleaders in that disturbance. There was one mistake in the statement of the noble Earl opposite which he wished to correct—namely, that his right hon. Friend the late Attorney General for Ireland had concurred in the propriety of taking no steps against those priests. He (the Earl of Eglinton), however, begged to state that his hon. and learned Friend had upon every occasion stated it as his opinion, not only that the priests should have been prosecuted, but that the present Attorney General for Ireland had acted wrong in not taking that course. He should say for himself, that he considered it the duty of the Government of which he was a member, or any other Government, to have prosecuted the rioters who had been engaged in the affray at Six-mile Bridge; and he should confess that, in his opinion, it would redound much to the happiness of Ireland if the theory which the noble Earl opposite had enunciated that evening were carried vigorously into effect.
thought it was his duty, occupying the position which he did, to express his opinion on the subject before the House, and he would do so with the utmost impartiality. First, in reference to the conduct of the late Attorney General. For him he had the most sincere re- 722 gard, and the highest admiration; he believed he was a consummate lawyer, an honourable man, and an amiable member of society; but, at the same time, he must say that he had committed a great mistake in the treatment of this case as Attorney General. When he found there was no evidence to support the finding of the coroner's jury, he ought at once to have entered a nolle prosequi. That was a prerogative of the Crown which he had a right to exercise; and, had he done so, the soldiers would have been freed from all liability whatsoever. He (Lord Campbell) believed that he mistook the right course when he applied to the Queen's Bench to quash the finding of the jury, because it had no jurisdiction in the case. He had had some correspondence with the Irish Judges on the subject, and had searched Westminster Hall for precedents, but could find none giving to the Court that jurisdiction. When there was no imputation on the coroner, and no want of jurisdiction alleged in the coroner's jury, it was quite clear that the Court had no right to quash the investigation on the ground that the evidence was insufficient. He could not blame the present Attorney General, when he entered office, for not entering a nolle prosequi, because that would have been a rather invidious course for him to take, following, as he did, a man who was so much respected. He thought it was quite right that one of the soldiers should be arraigned in the face of the country, and that the Attorney General should, on his own responsibility, justify the course which he had pursued. He could not believe it possible that any counsel, whatever his political opinions, should have used language so degrading as that mentioned by the noble Earl opposite.
The EARL of CLANCARTY
complained of the antagonistic principles which seemed to be entertained by the heads of the Government. The noble Lord the leader of the House of Commons, on a recent occasion, professed to have no confidence in the Church of Rome; but the noble Earl opposite said he entirely differed from his Colleague in that respect. Let their Lordships consider what would have been the result of that want of unity of action if a state of things had arisen this year analogous to that which, in 1850, rendered the Ecclesiastical Titles Bill necessary. What would have taken place if the preponderance of opinion in the Government had been favourable to reposing entire confi- 723 dence in Rome? Would there have been any vindication of the Queen's supremacy? That, he apprehended, was a serious question for the consideration of the people of England.
§ The DUKE of NEWCASTLE
said, the noble Earl had entirely misrepresented what had passed on the subject to which he referred. The noble Earl said the difference between the noble Earl at the head of the Government and the noble Lord the leader of the Government in the other House was this—that the noble Lord said he had no confidence in the Church of Rome, and that the noble Earl expressed a contrary opinion. Now, no such position was maintained by the one, or denied by the other. All that took place was this: certain Gentlemen took offence at some expressions of his noble Friend in the other House (Lord John Russell), while stating particular reasons, among others, for objecting to a Motion then before the House; and his noble Friend at the head of the Government (the Earl of Aberdeen) on being asked whether he concurred, intimated to those Gentlemen that he did not participate in all the reasons suggested by the noble Lord for the course he had adopted. That was, in fact, the only difference between the noble Lord and the noble Earl. There was no question of confidence or want of confidence in the Church of Rome. That was an entire fabrication. As to the more immediate question before the House, he considered that there must be in every country, and more especially in Ireland, a very great latitude and considerable discretion allowed to the law officers of the Crown in State prosecutions of this nature. Nothing could be more prejudicial to the due administration of justice in Ireland than for the Attorney General to follow up a prosecution against any priest or layman, and to signally fail in the end, as, he contended, he must have done in the case against the priest named Clune, and therefore he had done quite right in avoiding it. He (the Duke of Newcastle) should feel unworthy of the friendship of the hon. and learned Gentleman who now held the office of Attorney General in Ireland if he did not protest against the language with regard to him that had been used by the noble Earl who lately occupied the important position of Prime Minister. The noble Earl had made imputations founded on a speech which he had not read. If he had intended to heap upon him imputations so strong, he was bound to have brought 724 forward his proof, instead of confining himself to a general and vague declaration that the speech of the hon. and learned Member was an incentive to disturbance. He would not stand there while the late Attorney General was praised for his conduct, and hear unmerited obloquy and abuse directed to one who was at least worthy of being his successor in office, and who yielded to him in no respect, whether in his attributes as a lawyer, in his character as a gentleman, or in the amiability of his conduct. With respect to the charges which had been made against the Attorney General, and which he had shown were not founded in truth, he might mention that, not long ago, he often heard repeated, by certain parties, that it was impossible to have complete justice in Ireland now that Mr. Brewster, the Orangeman, was Attorney General; but he (the Duke of Newcastle) believed that such an imputation was made without the slightest foundation, for Mr. Brewster was not an Orangeman. He entertained a very high opinion of that learned Gentleman, and, more particularly so, in regard to the trial which took place, for he received directions from the noble Earl at the head of the late Government in Ireland to proceed with the case; but at the very moment of going into court, he, upon his own responsibility, determined to abandon the proceedings, and in doing so disobey the order which he had received. The course which he then pursued had been approved of. The noble Lords opposite had thrown out insinuations, and had aspersed the characters of the Members of the Government; but he challenged them to prove their assertions. He did not hesitate to say, for himself, that he leaned towards no Irish party; but he would fearlessly say that he should not be afraid of being just towards the priests. He thought a satisfactory answer had been given to the aspersions which had been cast against the Government. Should the proof of them be attempted, he was quite prepared to assert that there would be a failure in substantiating them. He would boldly say, and challenge denial by the noble Lords opposite, that Ireland was now in a better state than ever before known. Whether they turned their attention to the religious or political feelings of the people, it would be found that there was not the slightest manifestation of any apprehension that the law would not be carried out by the present Government in all its integrity and impartiality; and in support of the feel- 725 ing now existing, that the present Government had acted, and intended to act, with the greatest impartiality towards all classes in that country, he would refer to the elections which had taken place since the accession to office of the present Government; and he did this the more freely because the question before their Lordships was one respecting an election in Ireland. There was no appearance on the part of the Roman Catholic party to oppose the general policy of the Government—there was no appearance on the part of the priests to do so. They were not inclined to take more liberties now than they took when the noble Earl (the Earl of Derby) was at the head of the Administration. He boldly repeated, that the law in Ireland had been impartially administered, and that that would be continued so long as the present Government was carried on by the noble Earl (the Earl of Aberdeen).
§ LORD REDESDALE
said, he thought the question, affecting as it did the conduct of so many persons, was one of the deepest importance. The noble Duke (the Duke of Newcastle) said that there was not sufficient evidence to support and carry on a prosecution against Mr. Clune, the Roman Catholic priest; but he (Lord Redesdale) would show, by referring to the Report made by the Committee of the House of Commons, that there was sufficient evidence. The Report declared that Mr. Clune had greatly excited the people to take part in the riots at the last election for the county of Clare, and that he had taken part in the proceedings himself. That was the finding of the Committee with regard to Mr. Clune. Surely that evidence was equally open to the law officers of the Crown. Then, as to Mr. Burke's conduct, it was also proved before the Committee that he had taken part in the riots. He believed that one reason given for not prosecuting him was, because he had brought forward a false charge of murder against those parties who had acted, and were desirous of acting, in accordance with their duty. That was a very unfortunate fact to admit. He believed that it was the unanimous feeling of the Committee that Mr. Burke should be prosecuted.
§ The DUKE of NEWCASTLE
said, he had not had the power to watch all the proceedings of the case, but he knew that the Committee was not unanimous in considering Mr. Burke guilty of the charges made against him. He begged to observe 726 that there was a very great difference of opinion existing in the minds of the Committee. He (the Duke of Newcastle) objected to a Report of the Committee of the House of Commons being referred to in their Lordships' House. It was not a document which ought to be brought forward to support a charge of this kind, for it was impossible to say how the conclusions in the Report were arrived at.
§ The EARL of CARDIGAN
replied. The noble Earl at the head of the Government had informed their Lordships that he entertained one opinion at one time, and that he had afterwards changed it, but for what reason it did not appear. With regard to the insinuation which the noble Earl had thrown out—that the Motion had been made for the purpose of creating disturbance at the ensuing election for Clare—he (the Earl of Cardigan) thought it a most unfair insinuation. It was an accusation which had no foundation. That he had brought forward the Motion at a time when it was likely to endanger the peace of the country was not a fact. It was not his duty to inquire whether an election was about to take place or not, but it was his duty to ask, in his place in Parliament, whether certain pledges which had been given by the Prime Minister of this country some months since, in his place in that House, were to be kept or abandoned. He (the Earl of Cardigan) believed the soldiers had been most unfairly treated, although it had been promised that all parties should be dealt with in justice and impartiality. He did not believe that the explanations which had been given would be satisfactory to the country generally—certainly they would not be to the military. He would, however, withdraw his Motion.
§ Motion, by leave of the House, withdrawn.
§ House adjourned to Monday next.