British Quarterly Review, American Edition, Vol. LIV / July and October, 1871

by Various

'It is the very ancient privilege of the people of England,' says Edmund Burke, 'that they shall be tried, except in the known exceptions, not by the judges appointed by the Crown, but by their own fellow-subjects.' Trial by jury has probably exercised more influence than any other institution in moulding our national character, and in impressing on it especially that inborn reverence for law which has become proverbial. But with that singular perverseness which has characterized all our dealings with Ireland for centuries, we not only imposed our own institutions on that unhappy country, but we imposed them shorn of all that which made them precious to Englishmen. This is true in an aggravated sense of trial by jury. The very essence of trial by jury is, as Burke has observed, that the accused 'shall be tried, not by the judges appointed by the Crown, but by his own fellow-subjects.' But how did we carry out this principle in Ireland, in the case of political prisoners in particular? By simply ignoring it. We retained the name and the forms of trial by jury, but we so perverted its intention and spirit, that what Englishmen regard as the palladium of their liberty became in Ireland the symbol of every species of injustice and wrong. When it was an object with the authorities of Dublin Castle to secure the conviction of a prisoner, they never hesitated to pack the jury that tried him. Names which ought to have been on the panel were systematically and arbitrarily excluded, and the jury-box was filled with men of whom it might have been predicted with tolerable certainty beforehand that they would bring in a verdict of guilty. Let us illustrate our argument by a typical example. In 1844, the Government of the day succeeded in getting a verdict of guilty against Mr. O'Connell, a man of whom Macaulay has declared truth that 'the place which he held in the estimation of his countrymen was such as no popular leader in our history, I might perhaps say in the history of the world, has ever attained.' If ever there was an occasion when the Government should have been scrupulously careful to administer justice fairly, it was the trial of O'Connell; for the eyes not only of Ireland, but of all Europe, were upon them. But so inveterate had the habit of managing verdicts become in Ireland, that on a crucial occasion, when trial by jury itself might be said to be on its trial, the authorities shamelessly packed the jury which sat in judgment on the great tribune. Twenty-seven names were omitted from the panel which ought to have been on it. And then from 'this mutilated jury-list,' as Macaulay indignantly calls it, forty-eight names were taken by lot. 'And then'—we must tell the rest of the story in Macaulay's burning language—

'And then came the striking. You struck out all the Roman Catholic names; and you give us your reasons for striking out these names, reasons which I do not think it worth while to examine. The real question which you should have considered was this: Can a great issue between two hostile religions—for such the issue was—be tried in a manner above all suspicion by a jury composed exclusively of men of one of those religions? I know that in striking out the Roman Catholics you did nothing that was not according to technical rules. But my great charge against you is that you have looked on this whole case in a technical point of view, that you have been attorneys when you should have been statesmen. The letter of the law was doubtless with you; but not the noble spirit of the law. The jury de medietate linguæ is of immemorial antiquity among us. Suppose that a Dutch sailor at Wapping is accused of stabbing an Englishman in a brawl. The fate of the culprit is decided by a mixed body of six Englishmen and six Dutchmen. Such were the securities which the wisdom and justice of our ancestors gave to aliens. You are ready enough to call Mr. O'Connell an alien, when it serves your purposes to do so. You are ready enough to inflict on the Irish Roman Catholics all the evils of alienage, but the one privilege, the one advantage of alienage, you deny him. In a case which of all cases most required a jury de medietate, in a case which sprang out of the mutual hostility of races and sects, you pack a jury all of one race and all of one sect.... Yes, you have obtained a verdict of Guilty; but you have obtained that verdict from twelve men brought together by illegal means, and selected in such a manner that their decision can inspire no confidence.'—(Macaulay's Speeches, p. 314.)

Now let it be observed that this system, which treated the Roman Catholics of Ireland as aliens in their own country, and at the same time denied them the rights and privileges of aliens, has been in force up to this year. And yet many on this side of the Channel are innocently surprised that the Irish people have no great reverence for English law, and no great love for British institutions; and so they rashly conclude that the only way to govern such a lawless race is by the strong arm of power. But the simple fact is, that the Irish from time immemorial have been remarkable for their love of justice. To this fact their bitterest enemies bear witness. In that category may certainly be reckoned Sir John Davys, Irish Attorney-General under James I.; yet this is the testimony which he bears:—'There is no nation of people under the sun that doth love equal and indifferent justice better than the Irish, or will rest better satisfied with the execution thereof, although it be against themselves, so as they may have the benefit and protection of the law when upon just cause they do desire it.' 'The truth is,' he adds, 'that in time of peace the Irish are more fearful to offend the law than the English, or any other nation whatsoever.' That simple expression, 'in time of peace,' explains the whole matter. English law has unfortunately too often presented itself to the people of Ireland as a cruel enemy, against which it was a duty and a necessity to wage a chronic warfare; and it is no great marvel if they take some time to learn that their enemy of yesterday has suddenly become their friend. We have no faith in sudden political conversions, especially in the case of nations; and we do not despair of Mr. Gladstone's legislation for Ireland, because we find that its healing properties are percolating but slowly through the crust of inevitable prejudice which it had to encounter. We must persevere in the good work, and Mr. Gladstone has shown his earnestness in the ungrateful task of conciliating Ireland by passing last session several measures of great importance to the welfare of that country. Chief and foremost among them is the Juries (Ireland) Bill. It is an elaborate piece of remedial legislation, though it passed through Parliament without exciting attention, and it cannot fail to produce an excellent effect in Ireland, as its character becomes gradually known. It will no longer be possible for the most violent partisan to pack a jury in Ireland, and we may reasonably trust that in process of time Irishmen will learn to appeal to English justice with a confidence to which they have been so long strangers.

Another Irish measure of great importance which received the sanction of the Legislature last session is the Local Government (Ireland) Act. Its clauses are thirty-two in number, and its object is to amend the law relating to the local government of towns and populous places in Ireland. It is not necessary to go through its provisions, but we may say that their general effect is to make all illegality and corruption in municipal elections and in the elections of local commissioners impossible, or at least perilous; to put a stop to anything like jobbing or any corrupt expenditure of public money by the governing bodies of towns; to extend to Ireland, with the necessary modifications, the provisions with regard to the public health which prevail in England; and to empower the governing bodies and ratepayers of all towns in Ireland to obtain lands at a cheap rate, to unite or separate districts, and to alter rates. Another clause of the bill empowers the Lord Lieutenant, with the approval of the Treasury, to create a new Local Government Department of the Chief Secretary's office, 'the salaries of such persons to be paid out of the moneys to be provided by Parliament for such purpose.' The tendency of the whole bill is to develop the faculty of self-government throughout Ireland, and to give the country 'home rule' in the only sense in which that boon would be practicable or beneficial. What is needful above all things is to instil into the minds of the Irish people habits of self-reliance and a respect for English law; and the two bills which have elicited these observations are most valuable contributions to that result. Viewing them in all their bearings, we are bold to say that if the session had produced nothing else, these two bills alone would have redeemed it from the reproach of being a 'barren' session. In the election campaign of 1868, Mr. Gladstone described Protestant ascendancy in Ireland as a great upas tree which was casting its baleful shadow over the whole land; and ever since he has been in office he has set himself vigorously and with unwearied patience not merely to cut down the wide-spreading branches of that fatal tree, but to root up one by one the noxious growths which flourished beneath its friendly shade. The Jury Bill and the Local Government Act are the natural fruits of the Church Bill and the Land Bill. It would have been impossible to pass them while Protestant ascendancy existed. Other Irish bills have been passed this session which, though of less importance than those we have named, have a very practical bearing on the well-being and conciliation of Ireland. Yet all these measures have been simply ignored in the various criticisms of the session which have come under our notice. As if, forsooth! the prosperity and contentment of Ireland were not of the last consequence to the empire at large.

So much for the work of the Government in the field of Irish legislation. Let us now turn to its tale of successful measures in matters of English and imperial policy.

The Army Bill demands, of course, the first and chief place in our review; and we must remark, in limine, on the singular ill-luck which overtook the Government in introducing it. During the autumn and winter of last year, the country very generally, and even passionately, demanded a large scheme of army reorganization. Radicals and Conservatives differed, no doubt, in their views of what was desirable in a good scheme of army reform. The latter wished merely to supplement and improve the existing system, which they considered as near perfection as could reasonably be expected. The former were not quite agreed among themselves. Some had a hankering after the Prussian system, and some preferred the Swiss. But Conservatives, Whigs, and Liberals were all agreed on one point, namely, that Mr. Cardwell's scheme ought to be a large and comprehensive one, and that a large and comprehensive scheme involved expense. The Conservatives wished that expense to go towards the enlargement and perfecting of the old system. On the other hand, the Liberals, as a body, demanded the abolition of the purchase system, and the development of a new system in its place. But all admitted the necessity of a considerable expenditure, and there was a general acquiescence throughout the country in the prospect of an increased income-tax. Meanwhile Bourbaki made his fatal march to the frontier, Chanzy's army was defeated and scattered, and Paris was obliged to capitulate. The preliminaries of peace were agreed upon soon afterwards, and the Eastern question, which Prince Gortschakoff had reopened in so insolent a manner, was in a fair way to a pacific solution.

The return of calm after so violent a storm in the political firmament soon began to tell on English nerves; the panic which prompted, during the bewildering achievements of the German armies, the cry for an efficient scheme of army reform subsided by degrees as the danger of war receded from our shores, and even 'The Battle of Dorking' failed to impress the British taxpayer with any fear of an imminent invasion. The consequence was, that by the time Mr. Cardwell laid his scheme before Parliament, the enthusiasm for army reorganization had cooled down to the temperate, and among some philosophical Radicals, even to the frigid zone. The measure of the Government was admitted on all hands to be thorough and comprehensive, and it received the cordial acquiescence of the country. But the panic was over, and, as a consequence, there was an absence of that enthusiastic support which enables a minister to defeat summarily anything like an attempt at an organized system of factious opposition. Had the Franco-German war ended two months earlier than it did, it is questionable whether the Government would have received sufficient encouragement to attack the purchase system, considering the expense which its abolition entailed on the country. There can be no question that if Mr. Gladstone had taken up the subject and made it his own, as he did the Irish Church Bill and the Land Bill, he could at any time have commanded such support from the country as would have carried all opposition before it. One or two rousing speeches from him, exposing the manifold evils of the purchase system, and explaining the plan of the Government, would have done the thing. But the misfortune of Mr. Cardwell was that he elaborated and matured his scheme at a time when the country was prepared for almost any expense that would give us an army which would secure the safety of the empire, and enable us to hold our proper place in the councils of Europe; and that he propounded his scheme when the looming spectre of increased taxation appeared a more tangible evil than the danger of a foreign invasion. The Opposition availed itself adroitly, if not very patriotically, of the turn of the tide, and wooed the aid of the extreme Radicals by the cry of extravagant expenditure. Nor did it cry altogether in vain. There are a few Radicals in the House of Commons who cannot forgive Mr. Gladstone for being a Christian. That a man of his commanding genius and varied acquirements should still retain the faith of his childhood is an enigma to them. But that he should ever presume to baulk their efforts to sap and overthrow its foundations is an offence to them; and, if the truth must be told, they would far rather have a leader of the Epicurean type of Lord Palmerston or Mr. Disraeli. One or two of these pseudo-Liberals have been practically in opposition all through the session, and we shall be curious to see how they defend themselves before their constituents when the day of reckoning comes. One fact at all events is certain: it was in a great measure through the help which they gave to the Opposition that the session has not been more fruitful than it has been. Whenever the Opposition wished to waste a night in purposeless debate, the manœuvre was sure to be seconded by this handful of Voltairean Radicals below the gangway.

Such are the circumstances under which the Government introduced their Army Bill. But it is impossible to appreciate the importance of that bill, or to understand the virulence of the opposition which it encountered, without glancing at the evil which it sought to remedy. When the Government resolved to ask the assent of Parliament to a large scheme of army reform, they found themselves hampered and fettered on all sides by the purchase system. The army was enclosed in a network of vested interests which it was found impossible to break through for the purpose of effecting even so slight a reform as the abolition of the ranks of ensign and cornet. It had, in fact, ceased to be the property of the nation, and was no longer under the control of the sovereign. It had become mortgaged to the officers, and it was absolutely necessary to get it out of pawn before it could be effectually dealt with. In short, the purchase system must cease to exist, or all ideas of army reorganization must be abandoned. Does anyone think this too strong a statement of the case? Let him consider the history of the purchase system, and he will think so no longer.

We have been told ad nauseam that the purchase system has been the mainstay of the British army. The bravery of our officers, their well-bred manners, their discipline, even their patriotism and loyalty, have all been ascribed to the magic of the purchase system, and so has the esprit de corps of the men. Now it seems to us that there is a hitch in this style of reasoning, inasmuch as it implies that the things which happen to exist together are necessarily related to each other as cause and effect. The officers of the British army may be all that their admirers declare them to be,—on that point we shall have something to say presently—but it by no means follows that the purchase system is the cause of their excellence. Nearly all the merits which are claimed for the purchase system were conspicuous in the German army in the last war; yet the purchase system is unknown in the German army, and, in fact, in every army in the civilized world, England alone excepted. Nor, indeed, does it embrace the whole of the English army. The navy and the marines, the artillery and the engineers know it not. Its advocates are therefore forced to this dilemma: they must deny to the navy and to the non-purchase corps of the army all those qualities which they claim as resulting from the purchase system, or they are bound to admit that those qualities are independent of the purchase system, and may continue to exist without it. For our own part, we have no doubt whatever that the many admirable qualities of the British officer are not only independent of the purchase system, but that they remain in spite of it; for the purchase system, as it has been in practice among us, is essentially a demoralizing system. We say as it has been in practice among us, because the purchase system and the illegal custom of paying more than the regulation price for the value of commissions have been proved to be inseparable. This has been demonstrated by the Royal Commission which examined into the subject last year. The payment of over-regulation prices has been forbidden in every variety of form for more than a century, but it has grown and prospered on its prohibitions. On a revision of the prices of commissions, in 1766, by a board of general officers, a royal warrant was issued, which contains the following stringent order with respect to over-regulation prices:—'We having approved of the same (i. e., the prices recommended by the board), our will and pleasure is, that in all cases where we shall permit any of the commissions specified therein to be sold,[66] the sum to be paid for the same shall not exceed the prices set down in the said report. And all colonels, agents and others, our military officers, are hereby required and directed to conform strictly and carefully to the regulation hereby laid down and established, upon pain of our highest displeasure.' In 1772 and 1773, some other royal warrants were issued, prohibiting over-regulation prices in equally peremptory terms. Still the unlawful traffic went on unchecked, and in 1783 another step was taken to put a stop to it. A general order was issued by the Commander-in-Chief requiring every officer, in sending his application for leave to dispose of his commission at the regulated price, 'solemnly to declare, on the word and honour of an officer and a gentleman, that nothing beyond the price limited by his Majesty's regulations was stipulated or promised, directly or indirectly, and that no other mode of compensation or gratuity was in contemplation of the parties, or should be given or accepted in respect of such sale or purchase.' A similar declaration was required of the officer desiring to purchase. He 'expressly pledged his word and honour as an officer and a gentleman that he would not, either then, or at any future time, give, by any means or in any shape whatever, directly or indirectly, anymore than the regulated price.' The commanding officer of the regiment was further required to declare that he verily believed the established regulation with regard to price was intended to be strictly complied with, and that no clandestine bargain subsisted between the parties concerned. This prohibition was extended to cases of exchange from half-pay to full-pay, and from one corps to another. The commanding officer was at the same time ordered to transmit the names of such officers in the regiment as were willing to purchase in succession; and in cases where the commanding officer recommended a junior for promotion over a senior's head, he was to give his reasons for such recommendation. It appears, therefore, that in establishing the rule of seniority, tempered by selection, in regimental promotion, Mr. Cardwell has simply revived an item of military reform attempted about ninety years ago. But not to dwell on that, the general order from which we have been quoting went on to clench its prohibition of over-regulation prices in the following explicit language:—

'His Majesty has, by the advice of his board of general officers, been further pleased to declare his determination that any officer who shall be found to have given, or to have stipulated, or promised, directly or indirectly, to give anything beyond the regulated price, in disobedience to these his Majesty's orders, or by any subterfuge or equivocation to have evaded the same, and to have thereby shamefully forfeited his honour as an officer and a gentleman, shall be dismissed from his Majesty's service.'