menced after midnight. This was unjust. The jury were asleep; the prisoner, worn out, was unable to defend himself ;his witnesses were often not to be found; the witnesses against him had been dining, and were not in a very fit condition to give correct evidence. At nisi prius he had seen the baron come into court at half past one; a practice which, by the delay it occasioned, put clients to great expense. He had once gone

the circuit with the baron and Mr. Justice Fletcher. The latter tried civil cases from eight till four, when Mr. Baron Smith would commence the criminal business, and seldom rose before three in the morning.

Under the second head, Mr. O'Connell stated that, in October, 1833, Mr. Baron Smith had presided at a special commission in Dublin. The calender contained seventeen cases, viz. eight of larceny, four of cow-stealing, three of pig stealing, one of bigamy, and one of swindling. Here there was no room for political allusion, yet the charge to the grand jury was a political discourse, having no relation to any one case which the judge was to try, censuring the misconduct of ministers, replying to speeches delivered in parliament, and reviving and inflaming religious feuds. After telling the grand jury that, "whenever he thought the lawless state of the country not fully understood, he sounded the tocsin"-which no judge had a right to do, or to make himself a political sentinel "he went on to say, "subsequent events deplorably proved that I had given no false alarm. The audacity of factious leaders increased from the

was

as

seeming impunity which allowed them," he being a judge who might be called in to try these factious persons. He represented the constitution being tottering on its base. He referred to speeches delivered in that house, and charged the member for Drogheda (Mr. O'Dwyer) with having said of him, that he would sacrifice truth to an antithesis. He then defended Mr. Baron Pennefather, accusing all who differed from him of being in the wrong; charged members of that house with having made speeches derogatory to the bench ; censured a cabinet minister for having spoken, without terms of condemnation, of petitions which he described as being "not of submissive prayer, but of refractory invective and insolent dictation; and talked of the disposition prevalent among a great body of the people to resist rents, tithes, rates, and even taxes. This was all bad enough; but the attempt to inflame religious feuds was still worse. Speaking of the emancipation act, the baron said that by that act Roman Catholics had got all they ought to desire, all they were entitled to, and he appeared to insinuate that they were looking for much more. He asked in his charge why were such efforts being made by the Catholic clergy? Why was such abuse heaped upon the Protestant clergy? Why was there such joy at the wane of the establishment? Why was such delight exhibited at the diminution of the number of the Protestant bishops? These were questions asked by the learned baron, and he would put it to the house were they, or were they not, calculated to revive religious animosity? The manner, too, in which his opinions were put for

ward, made them still more objectionable. They were clothed They were clothed in language-for baron Smith was certainly an accomplished scholar -which rendered them more likely to fasten themselves upon the mind, and they were addressed to persons who received them but too greedily, and upon whom they were but too likely to produce a most injurious influence by perpetuating, if not creating, religious animosity amongst the people. The Protestants were told, that their clergy were abused, that their establishment was on the wane, and that the Roman Catholics were rejoicing over its downfal. Could such language be addressed to the Protestants with out producing an injurious effect? Mr. O'Dwyer seconded the motion: and unfortunately, the ministers, beginning the session with that unhappy system of condescension to the Irish party, of which they exhibited more examples before it finished, lent all their weight to the proposal for inquiry. Mr. Littleton thought it due to the responsibility of his situation not to oppose the motion. He disapproved of any remarks of a political tendency dropping from the bench; but at the same time it could not be denied that there existed in Ireland a species of crime which naturally called for such observations; and the frequency of such crimes created, of course, the frequency of such charges.

Mr. Shaw maintained, that sir William Smith had not departed in his conduct from the practice which generally prevailed. Any censure upon him would amount to a defence of the agitation which had been the subject of his reprehension. Nothing unbecoming, or violent, had been introduced in the charge.

If the judges of the land perceived that there existed violent agitation, and systematic attempts at evading the law, they could not allow the ignorant and miserable dupes of such political knavery to he punished, while those, who were really and directly the guilty parties, escaped. Had there been any charge of corruption or misconduct brought against the learned judge, he would have been the last person to have stood up in his defence.

Mr. Stanley conceived it formed no part of the duty of a judge to introduce into his charges, as baron Smith had done, various political allusions; and the simple question was, whether or not there were substantial reasons for granting the inquiry which was demanded. By entertaining this motion, the house by no means condemned Mr. Baron Smith, whom he admitted to be a highly respectable and honourable man, and against whom he regretted there should have arisen even the slightest ground for accusation. It appeared, however, that, on one occasion, fourteen persons had been tried between six o'clock at night and the same hour of the following morning. Surely there could have been no good excuse for such a course of proceeding. He thought that an inquiry should be instituted, because it was proper to show that in an English house of Commons the rights of the Irish people met with impartial attention: and, although the result should be an immediate and ignominious removal of the learned judge, he felt him. self bound to support the motion.

Sir Robert Peel believed, that, from what he knew of the learned judge, he might with safety venture to say, that he had been in every instance the friend and advocate of

conciliation, and he had never met with any man more anxious to examine closely into every cause, and to sift every kind of evidence, in order to afford a prisoner all the assistance in his power. He could mention many instances in which that individual had made sacrifices of time and personal trouble in the public service. There was no alle gation of corruption against him; he was charged merely with having made himself a political partizan; and if it be once admitted, that this constitutes a case for inquiry on the part of the house of Commons, laws might be put upon the statute-books, declaring the independence of the judges, but that independence would be only a miserable phantom. The house had no power to interfere with the office of a judge except by an address to the Crown, and no man was prepared to say, that the case before them warranted such an extreme proceeding. It might be, that there was a trifling irregularity in the conduct of the learned judge; but if an inquiry was to be instituted, it ought, at all events, to be conducted with a solemnity becoming the station of the distinguished individual. Let him be called to their bar-let the house of Commons itself be the committee of inquiry. While all possible justice was done to Ireland, the house should not lend itself to an injustice under the notion of following and flattering popular opinion. The charge of neglect of duty on the part of baron Smith was brought before the house last session, and had been allowed to drop. Let it be remembered, too, that, at the time when the charge alluded to was delivered, there was no security for property in Ireland; insurrectionary violence had become prevalent, and even the king

had found it necessary to express his just indignation at the mischievous and organized system of agitation which had spread. throughout the country. In its answer to his majesty, the house justified such sentiments; and the first step, forsooth, subsequent to this, was to drag baron Smith before the house for having recommended, that such agitation and disaffection should be discontinued.-Sir Robert Inglis, too, could not consent to enter into an inquiry, unless there was more specific evidence before the house. Baron Smith had cautioned the people of Ireland against the defusion which was practised on them in their being persuaded to call for a repeal of the Union. The English judges had more than once, during the commissions of 1812, 1817, and 1832, referred to the causes of the crimes which they deplored, and no one imagined that they ought to have been censured for making such allusions. Baron Smith had only endeavoured to give effect to the king's speech; his object was to support the law; and he saw no reason why a judge, for having done so, should be visited with censure, which would amount to condemnation. He moved, as an amendment, that the house do now pass to the previous question.

Mr. Sinclair having seconded the amendment, the Solicitor General declared his intention to vote for the original motion. One of the charges against baron Smith was neglect of duty: and there could be no doubt that the early attendance of the judges in their respective courts was absolutely necessary for promoting the ends of justice.

Sir James Scarlett was clearly of opinion, that the learned baron

had only discharged his duty, and if the present motion were carried, the Irish judges would lose their independence, and, that once gone, their resignations must be the inevitable result. He admitted, that a judge, in charging a jury, should not enter into party speculations; but when a judge was upholding the constituted authorities-when he was acting in aid of the lawwhen he was following up the recommendation of his sovereignhe did not see on what principle he could be chargeable with a violation of his duty. He had heard Mr. Justice Buller, and other judges, during the last war, advise the people to be on their guard against the introduction of French principles; and nobody supposed that their conduct was, on that account, liable to parliamentary investigation. On the contrary, instructions to that effect were given to the judges by the Chancellor of that day; there was also a proclamation by the Crown, calling on them, in their several departments to discourage, by their advice, all attempts to excite discontent and sedition. The immediate effect of a select committee being appointed to inquire into the conduct of a judge, would, in the event of the charge against him being sustained, be his removal from the bench. If there was any judge in Ireland who valued his independence, he should, on hearing of such a motion as that before the house being carried, give the government with out delay an opportunity of appointing his successor. Mr. Ser jeant Spankie likewise thought, that the government was here concurring in a measure which would have the effect of destroying the authority of the judges in Ireland; VOL. LXXVI.

and sir James Graham declared that, as he valued his own independence of character, if the motion were acceded to, and an address presented to the Crown for the removal of baron Smith from his judicial rank, supposing even all the alleged facts to be proved, he could not but condemn it as a most unjust proceeding. He felt it impossible to support his colleagues in the view which they seemed to have adopted in regard to this question. The motion however was carried by a majority of 93, there being 167 in its favour, and 74 against it.

By lending themselves to this decision, government had involved the house of Commons in a situation of great embarrassment, and had pledged it to an inquiry which could end in nothing. Even if Mr. O'Connell had convinced a committee that baron Smith had acted wrong, the house could have done only one of two thingseither impeached the judge or addressed the king to remove him. No man pretended that there was any ground for impeachment. Although a judge be removable on the application of parliament, he is removable on the address, not of one house, but of both houses; and the Commons could scarcely so far deceive themselves as to expect to be joined by the Lords in a proceeding like this. The ministers therefore probably were not displeased at finding themselves extricated from the difficulty, from the disgust-for such more than any other was the character of the feeling-which this attack upon an upright and able administrator of the law, by a man whose words and deeds had been devoted for years to pursuits leading to a disregard of all law, excited in the [C]