fessed himself unable to adopt the present drawn, and the hon. and learned serjeant resolutions of his bon, and learned friend moved “ for leave to bring in a bill for the without further information. He could more effectually securing the liberty of the not go the length of saying, that the due subject."-Leave was accordingly given. administration of justice required a power to reside in every judge to compel returns CLERK OF THE Pleas IN IRELAND.] to writs of habeas corpus issued in vaca- Mr. Abercrombie said, that as he saw a tion time. The two cases which his hon. right hon. gentleman in his place, conand learned friend had mentioned of the nected with the Irish government, he man detained on board the Spanish ship, wished to ask a question relative to an of and the young woman seduced from her fice which it was understood was to be eifriends, were not, in his opinion, sufficient ther regulated or entirely abolished. He to show that, justice could not be adminis- was anxious to know whether, when that tered by the due application of law, as it right hon. gentleman gave the consolatory at present existed. With regard to the assurance to the House that the office in complaints which the hon. and learned question would be brought under the congentleman made concerning the impossi. sideration of parliament, he was aware that bility, in the present state of the law, of the chief baron of the Irish exchequeć procuring an explanation upon a false re- claimed the right of patronage in the apturn, and his proposal of granting the pointment to it, and that he had in consesummary method of making inquiry, he quence actually nominated his son to sachad equal grounds of doubt and objection. ceed the earl of Buckinghamshire ? Had a proposal come from him (the At- Mr. Peel replied, that he had not had torney-general) of granting such summary the slightest expectation that any such powers to the judges, of proceeding, on event would have taken place. He was their own individual authority, to such therefore as much taken by surprise as the acts as these resolutions would enable them House could be. He did not hesitate to to do, instead of allowing parties to seek say, he had never understood the appointredress by the usual course of law, he was ment in question to be vested in other convinced that gentlemen on the opposite bands than those of the Crown. From the side, who assumed to themselves the cha- time of queen Elizabeth, he knew of no racter of guardians of the liberty of the instance in which this office had been held subject, would have been alarmed, and en- to be in the grant of any private individual. tered their protest against him. He was The right had not been claimed by any sensible that cases might occur, and some other judge who had sat in the court in had been mentioned by the hon. and which the learned judge who was referred learned serjeant, in which severe distress to presided. A question might arise out of might be endured, and great injustice the present claim, which could only be depractised, by false returns or continued cided in a court of justice, or in that confinement in the face of a writ of habeas House. At all events, parliament having corpus. He knew that a femme coverte expressed a desire that the office should might be kept in duress by her hus- be regulated, if even the claim to an inte band; that she might be detained by him rest in it were admitted, there could be where he pleased, notwithstanding a writ no reason why the resolution of that House issued in vacation time to procure her re- should not be carried into effect. Should lease ; that she might be carried about the individual succeed in establishing his from one end of the country to the other, right to dispose of the office, it would be under circumstances of oppression ; but, at least as necessary to bring in a bill for as the hon. and learned gentleman had al- the regulation of it, as if it should prove: lowed, there was no injustice without a re- to be vested in the Crown. medy. There could, indeed, be no com- Mr. Abercrombie said, he was happy he pulsory interference of the judges in the had proposed the question, because it had mean time, but there might be a trial by afforded an opportunity for an explanation jury afterwards.

from the right hon. gentleman which could Mr. Serjeant Onslow observed, that as not but be highly satisfactory to the he was extremely desirous to obtain una- House. There was only one observation nimity if possible, he should adopt the which he wished to make upon that explasuggestion which had been thrown out by nation. The right hon. gentleman had in.. his hon. and learned friend.

timated a doubt whether any future

proThe resolutions were accordingly with ceeding which might become necessary, (VOL. XXXII.)

(2N)

should be decided in a court of law or in | Horner rose to call the attention of the that House ; for his own part, he should House to a subject of great importance decidedly enter bis protest against any re- with regard to the administration of jusference to a court of law, as that House tice in Ireland. He was a member of a was the only fit place for the decision. committee last session appointed to in

Mr. Peel said, he had not had time to give quire into the proceedings of the grand the subject all the attention it deserved. juries in that part of the empire. It apTo carry an inquiry back to about the peared from the persons this committee year 1300, when the English law was first examined, and the documents laid before introduced, required some consideration; it, that the very extraordinary practice and he had not felt himself prepared at prevailed in the proceedings of the grand once to give an opinion on it. In a few juries, of finding bills of indictment upon days he should be possessed of more infor- the mere depositions obtained from witmation on the subjeet. Anxious to gain nesses by the magistrates, without any all that could be obtained, he had written resort to parole evidence. This practice to the commissioners now sitting in Ire very much excited his surprise. He was land, to whom a reference had been made not before aware, nor were many of his with respect to the duties of the office in friends who acted with him in the same question, desiring them to suspend the committee, that such a deviation from the business they were at present engaged in, law of the country, existed to any extent, and to proceed immediately to investigate or that it could be general. Such, howthe claim thus set up. He had that day ever, was the practice over the greater received a letter from the commissioners, part of Ireland. It was not of recent in which they informed him they would growth; it was almost as ancient as it was forthwith comply with his wish. The re- universal. It had prevailed so long, that sult of their proceedings would, he trusted, the records of the courts scarcely reached place the question in a proper light. back to a time when it did not exist. There might be a necessity for examining The hon. and learned gentleman promany things concerning it which would ceeded to state what the practice really require some time; what fees, for instance, was, when it appeared, that after an exawere exigible from suitors—whether they mination taken by the magistrates upon might be reduced or abolished-what duty oath, there was no other examination of was to be done by the deputy, and how witnesses till the accused was put upon he was to be paid; and, in short whether his trial before the petty jury. The de. the office should be abolished altogether, positions taken before the magistrate were or merely regulated.

the grounds upon which the grand jury Mr. Rose said, that if the grant of this proceeded in finding a bill of indictment. oflice belonged to the chief of the court, | The prosecutor laid these depositions bethe chancellor of the exchequer must have fore the grand jury, and upon this evithe disposal of it, and not the chief baroc. dence obtained his Bill. No witness was : Mr. Brougham said, it was of no conse- called before them, or examined in supquence to whom the right of nomination port of the alleged charges. They had to the office belonged, for the report of the nothing to guide their judgments but the finance committee which was supported by written evidence that the magistrate comthe unanimous resolution of the House, had municated. He thought it almost unnedetermined, that it should cease after the cessary to mention bow different this was death of the then occupier. The resolu- from the practice that prevailed in Engtion went virtually to an abolition of the land in sinilar circumstances, and before situation, since it provided, that the deputy a jury of this kind. Not only the inemshould do the duty, without any addition bers of the House knew this, but the least to his present salary.

informed individual of the country. BeMr. Peel denied that there was a reso- fore the English grand juries the wit, lution of the House, of the nature stated nesses of the prosecutor were'sworn and by the hon. and learned gentleman. examined. The depositions taken in the

Mr. Brougham said, it was a resolution first instance before the magistrate were of a committee of the whole House. He studiously withheld, and never allowed had consuited the journals when the sub-, by the judge, unless in the case of any of joct was last before them.

the witnesses having died in the interval

between their examination and the indict. i Irish GRAND JURIES BILL] Mr ment of the prisoner. The written evi

dence upon which the magistrate com- dence upon oath, and the best evidence mitted the prisoner for trial was put into that could be procured. The practice the hands of the judge, and never allowed was different. There was no evidence by him to be inspected by the grand jury, taken by the Irish grand juries ; they satisexcept upon the contingency he had men fied themselves of the grounds of an in, tioned, and at the discretion of the judge, dictment, without resorting to parole tesupon proper application to him for that timony. Here the hon. and learned genpurpose. * This practice in our criminal tleman read extracts from the minutes of proceedings was well understood, and evidence taken by the committee, on whose never deviated from. There had been report he grounded his proposed measure, disputes upon the manner of taking evi- with the view of showing the irregular dence before a grand jury, and the extent manner in which the Irish grand juries to which the examination should go, but conducted their proceedings, and the nenever concerning the propriety of re- cessity of recurring to a better system. quiring parole testimony before a bill of He then proceeded to state the object of indictment could be awarded. There was his bill. He paid high compliments to even a pretension set up, that not only the the judges who administered the law in witnesses of the prosecutor should be exa- Ireland. The bar, he said, was as much mined, but those likewise for the defence. distinguished for ability, probity, knowAll were agreed, that witnesses must be ledge, and eloquence, as any bar in the examined before the grand jury upon oath world; but there were some grievances of in England; and there was another point which he had reason to complain, as the equally clear and admitted, that the com- mode of electing sheriffs, and nominating mon law of England and Ireland were the magistrates. He was convinced that the same. In determining what was proper imperial parliament could do much with to be done, therefore, we had only to in regard to the removal of those and other quire what was the law of England; and grievances. The present one, which he though an opposite practice had been long had explained, would be easily removed. He established in the sister kingdom, the was entitled to say, that there was no grand length of usage was no sufficient bar jury at all in that country, as, except in against a return to the punctual adminis- particular cases, they had no other evidence tration of it. Even in Ireland, the usage to guide their decisions but what the magiswas not uniform for the grand jury to be trate had transmitted them. He was, thereguided by the evidence taken by the ma- fore, the only person who deserved the gistrate upon commitment. In some coun- title of a grand jury. There was no ties, as Wexford for instance, the practice check to oppression, therefore, from the did not prevail; and in others there were grand inquest. This was a most impor. departures from it. Even in the same tant privilege, of which Ireland was decounty the usage was not uniform, as was prived. There was nothing that could be proved by several of the witnesses exa- more essential to the interests and rights mined by the committee. The hon. and of those individuals who were exposed to learned gentleman stated the practice of trial, whether justly or unjustly, than reseveral counties, to show the variety in the storing this privilege.

For this purpose, proceedings of the grand juries, and the he thought the grievance should be renecessity of recurring to the observation dressed by a declaratory act. There would of what was, amid all deviations, certainly be no necessity for an enacting statute, the law of the land. He would not look but merely for a declaratory one. Any back upon the neglect that had been other would, besides being useless, have shown it; he would make no reference to the appearance of altering the common the past, but for the purpose of evincing law of the land. He therefore moved that it was completely forgotten, and that “ For leave to bring in a bill to declare we were to turn our attention to the im- the law for the right proceeding of grand provement of the future. He knew well juries in Ireland upon bills of indictment.” how delicate questions concerning the ad- Mr. Peel declared, that he felt no inten: ministration of justice were, and, instead tion of opposing the principle of the meaof making any reflections upon its past sure now suggested, but he imagined that state, would propose the measures which no one could deny that such a subject dethe actual circumstances demanded. This manded the most anxious inquiry; that in was noi difficult to be done. The law endeavouring to introduce an important was, that there should be evidence-evi- alteration in the customary practice of the grand juries of Ireland, in counteracting | baron of the exchequer, in Ireland, and a usage confirmed by immemorial custom, subsequently chief baron of the exchequer great difficulties must present themselves; in England. Chief Justice Reynolds, of and that the House should, above all the common pleas in Ireland, was also an things, deprecate precipitation. A consi- Englisliman, and yet, with these, and many derable time must necessarily elapse be- others, the practice then prevailing in the fore the provisions of this measure could grand juries of Ireland had such an influ. be brought into operation. The next ence as to prevent their attempting to assizes in Ireland must take place early in disturb it. The hon, and learned gentleMarch ; before that period it would be man had indeed justly stated, that, in impossible to run the bill through all its 1762, doubts as to the legality of this stages; consequently, as it could not be practice had been stated by chief jusapplied until the succeeding assizes, no tice Aston, and a meeting of the judges necessity existed of pressing the question. was convened to consider them. At that He suggested that some alteration in the time there were only nine judges in Irecivil proceedings of grand juries in Ire- land, and of that pumber seven agreed in land might, perhaps, in that time, be the legality of the practice, and continued adopted, and that thus associated, the it in consequence of its general convenimeasure would be rendered more perma, lence in the country. Among those who nently beneficial to that country. With acceded to that opinion were, lord chansincere pleasure he had heard the candid cellor_Bowles and chief justice Willes, declaration of the hon. and learned ger - both Englishmen. He appealed, in suptleman, that no censure could be applied port of his opinion, to the indirect authoto the very distinguished and honourable rity of both houses of the Irish parliament, persons who administered the laws in Ire. The question, indeed, had never come land, and with him he also agreed in sup. before the House of Commons, but their posing, that the law now to be introduced silence might be considered a proof of their should be declaratory; but he begged general concurrence in the practice. It leave to observe, that the hon. and learned might indeed have been a departure from member appeared somewhat precipitate in the common law, but it appeared to them declaring that the practice of the grand justifiable, in consequence of the great juries in Ireland was contrary to the pre- press of civil business which belonged to cepts of the common law.' He allowed grand juries, and partly perhaps from a that the authority of the hon. and learned desire to protect witnesses from the ingentleman in a case of this nature, was dignation to which they were exposed in very high; but as far as it related to Ire that country. The indirect authority of Jand, he would oppose authority of no the House of Peers, was, however, more small eminence. As far as constant prac- distinctly marked, for they had suffered tice could constitute the common law of one of their own body (lord Sandford) to any nation, he had the statment of the be executed for murder, on proceedings hon. and learned gentleman himself to precisely the same as were usually adopted support his opinion, that the present usage on all common indictments. He was was the common law of Ireland; for he pleased that, in the introduction of this had asserted that it seemed to exist from measure, no censure was attached to any time immemorial. The practice, as such, persons whatever for all past proceedings, had been sanctioned by the first legal and while he agreed in the general expeauthorities of England; for not many diency of the bill, he hoped that no centuries past, few lawyers who practised grounds for objection would be admitted at the Irish bar, were raised to the bench. into the wording of it. The judges were supplied almost intirely Mr. Ponsonby expressed his obligations from Westminster-hall, and these, some to the right hon. gentleman for the judi. of whom were the brightest ornaments of cious manner in which he had treated the the profession, had sanctioned the prac- question; but there was an observation tice by their approbation. The name of advanced by him in the course of his one of them was familiar with every per- speech, which it was impossible to pass by son the least versed in legal information, unnoticed. The right hon. gentleman as his authority was ever regarded with the seemed to think that the common law of highest respect; he alluded to chief baron Ireland was different from the common Gilbert, who had been successively chief law of England, but such a circumstance justice of the common pleas, and chief was altogether impossible. When the English law was first introduced into that abolishing any old established practice. couptry, it wholly superseded the usual or The grand juries of Ireland were not, he Brehon law previously existing; and by a could assure the House, so indifferent to statute in the reign of Henry 3, the sta- the lives and liberties of their countrymen, tute law of England was, up to that period, as to send them to trial upon slight and received as the statute law of Ireland. improper grounds. It was only when they This was the second great reception of were convinced by the clearest evidence, English law, which completely assimilated that they made out their presentments. the law systems of both countries. If, in The House should recollect, that the buthe course of time, any deviation from siness of the grand juries in Ireland was that system should have taken place, he much more extensive and complicated was not willing to imply censure on those than that of the grand juries in England. who had acted under present practice, The former, besides finding bills of indictbut, at the same time, he felt the expe- ment in criminal cases, had to attend to diency of an alteration, which could not various local interests, particularly probe effected but by an act of the legisla ceedings against illicit distillation ; and if ture. His hon, and learned friend had their time was to be taken up by the exsaid, that the law should be administered amination of evidence in all criminal cases, in Ireland, as it was in England, and in it would be impossible for them to get this he quite agreed with him. He had through what they had to attend to. He felt that the committee which had been would suggest deferring the measure till a appointed to make those inquiries, from later period of the session, in order that a whence the present proposition had re- fuller attendance of Irish members might sulted, would be of serious advantage. On be obtained, whose opinions ought to be that committee several English gentlemen consulted. had attended with great assiduity, and in Sir Samuel Romilly declared, that he their labours he confidently hoped Ireland could not sit silent, when he found it would obtain the best sécurity for a full questioned whether, by the common law, and perfect enjoyment of the great and a grand jury could not find a true bill of estimable advantages of the English in. indictment without hearing vivâ voce evistitutions. He expressed an ardent hope dence. The hon. member who spoke last that the bill would be carried through the had, he apprehended, confounded the preHouse in the same spirit of moderation sentments of grand júries with bills of inwhich had marked its first introduction. dictment preferred to them on evidence • Mr. Peel rose to remove the impression adduced by the prosecutor. The single of his having appeared to consider the point in question was, whether Ireland was common law of the two countries essenti- to have the benefit of grand juries or not? ally different. The hon. and learned It was a widely different thing to an indimover having represented the present prac- vidual charged with any offence to have tice of grand juries as a deviation from the bill thrown out by the grand jury, and common law, he had, merely stated the to be acquitted on his trial before the petit high authorities, by which it had been jury. In the former case, he stood persanctioned.

fectly justified and unsuspected; in the Sir John Stewart admitted that the latter, he might be supposed in society to common law in both countries was the have escaped upon some point of law, or same, but the practice prevailing in Ire- some unforeseen defect of evidenee. The land, for which he believed there was no people of Ireland had been hitherto exstatute, was anciently the practice in Eng- cluded from this advantage; and he did land also. He was glad, however, to wit- not think it difficult to perceive that it had ness the feelings of the English members been productive of much practical evil. towards his country, and would gladly lend This perhaps might be shown by a referhis support to the object of the hon. and ence to the vast disproportion, in that learned mover.

part of the empire, between the number Mr. Knox was of opinion, that notwith- of persons tried for murder since 1810, standing the labours of the committee, and the number convicted. The number they had not been able to find one in committed upon this charge could not fail stance in which a practical grievance had to strike the House as prodigious. In the resulted from the present mode ; and un- 1 year 1810, 237 were tried, and 15 cona less some substantial grievance could be victed : in 1811, 307 were tried, of whom proved, he must enter his protest against 24 were convicted; in 1812, 271 were