No. XII.

THE HON. SIR WILLIAM CUSACK SMITH,

THE SECOND BARONET OF NEWTOWN, NEAR TULLAMORE, KING'S COUNTY, 1799; SECOND BARON OF THE COURT OF EXCHEQUER IN IRELAND, LL.D., F.R.S., &c. &c.

SIR WILLIAM CUSACK SMITH was born on the 23d of January, 1766. He was the only son of the Right Hon. Sir Michael Smith, the first Baronet, also one of the Barons of the Exchequer, and afterwards Master of the Rolls in Ireland, by Mary Anne, daughter of James Cusack, Esq. of Coolmines, Dublin, and Ballyronan, Wicklow; descended from Sir Thomas Cusack, Chancellor of Ireland in the reigns of Henry VIII. and Edward VI. and from Sir Louis de Cusacque, who settled in Ireland in the reign of Henry II. as lord of Killeen, Dunsany, and Gerrardstown. Sir William Smith assumed the name of Cusack before his own on the death of his mother.

Sir William entered as a gentleman commoner of Christ Church, Oxford, in 1784, and took a bachelor's degree at that university. He ever preserved a fond filial attachment to Christ Church, and affectionate sketches of his college contemporaries will be found in his earlier writings. During his university course he spent all his vacations with his friend Edmund Burke, at Beaconsfield, or at Burke's house in London. With such advantages, and great natural talents, Sir William could not fail to be what his long life proved him an all-accomplished scholar, a true patriot, and a sincere Christian.

He was called to the Irish bar in 1788; and having subsequently taken the degree of LL.D. he was admitted as an advocate in the spiritual courts. In 1795 he obtained the

rank of king's counsel; and was returned in the same year to the Irish House of Commons, as M.P. for the borough of Donegal. In that house, he took a decided part in support of the measures of Mr. Pitt, and of the Union, and also in some able pamphlets he efficiently assisted the same cause. In 1800 he was appointed Solicitor-general for Ireland; and in the following year, an occurrence took place, which, for its singularity, attracted much attention, that of the Solicitorgeneral accompanying his father upon the same circuit, as second judge. In Jan. 1802, the Solicitor-general succeeded his father as a Baron of the Exchequer, upon Sir Michael Smith being appointed Master of the Rolls.

He succeeded his father in the baronetcy on the 17th of December, 1808; when the celebrated John Philpot Curran was appointed Master of the Rolls.

As a judge, Sir William Smith reached the highest eminence for precision, acuteness, and constitutional as well as legal research. His decisions were distinguished by clearness, vigour, and promptitude. But, if there was one feature which more than another stood prominent in the judicial character of the lamented Baron, it was his humanity. He presided at the trial of the celebrated polemic father, Maguire, for the alleged seduction of Anne M'Garraghan, and his charge to the jury on that occasion had great weight in influencing their verdict of acquittal. In politics he leaned to the constitutional doctrines of the old Whigs, and throughout his life was the consistent advocate of Roman Catholic emancipation.

In 1834 Mr. Baron Smith was subjected to a bitter attack in the House of Commons. He had, as we have just observed, been an honest supporter of Catholic emancipation, though he ever kept himself unpolluted by the contact of agitation. In former days, therefore, he was the object of unbounded praise among the orators of Catholic associations; and the

most enthusiastic eulogies on his moral and intellectual character were those which had proceeded from the lips of Mr. O'Connell. But past merits were now to be forgotten; for Mr. Baron Smith, who would not allow the inviters of crime to escape when he was punishing the misled, had warned his fellow-subjects from the bench against the delusive and inflammatory proceedings of factious men, which plunged almost necessarily into guilt the unfortunate beings against whom he was compelled to enforce, by transportation, or by the gibbet, the criminal justice of the country. It was therefore resolved to attack him with a parliamentry inquiry; in order, that for the future, all judges might feel the expediency of passing over in silence, if they did not mention with applause, what they believed to be the fertile sources of the crimes which they might be about to try.

On the 13th of February, 1834, Mr. O'Connell moved "that a Select Committee be appointed, to inquire into the conduct of Mr. Baron Smith, in respect to the discharge of his duties as a judge, and to the introduction of politics into his charge to a grand jury." The accusations were two; 1st, that the learned judge came late into court, and, on the assizes, tried prisoners at unseasonable hours; 2d, that he had introduced politics, and politics very displeasing, into his charge to a grand jury of Dublin. Under the first charge, Mr. O'Connell stated, that Mr. Baron Smith scarcely ever appeared in court till half-past-twelve, or between that hour and twelve o'clock. In the Court of Exchequer he commonly came in to write a letter, and then departed, without taking any share in the proceedings. On the circuit, in the counties of Down and Armagh, he did not sit in the Criminal Court till between eleven and twelve: at Armagh he had tried fourteen prisoners between six in the afternoon, and six in the following morning; the trial of more than one of them having com menced after midnight. This was unjust. The jury were asleep; the prisoner, worn out, was unable to defend himself; his witnesses were not to be found; the witnesses against him had been dining, and were not in a 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 calendar 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 political 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 proved that I had given no false alarm. The audacity of factious leaders increased from the seeming impunity which was allowed them; "he being a judge who might be called in to try those factious persons. He represented the constitution as 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 such efforts were making 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 the Baron's opinions were put forward, made them still more objectionable. 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 declining, and that the Roman Catholics were rejoicing over its downfall. Could such language be addressed to the Protestants without producing an injurious effect?

Mr. O'Dwyer seconded the motion, and ministers gave it their support.

Mr. Lyttleton thought it due to the responsibility of his situation (chief secretary) not to oppose the inquiry. He disapproved of any remarks of a political tendency dropping from the bench: 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 (the recorder of Dublin) 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