HC Deb 07 March 1821 vol 4 cc1131-9
Mr. Hobhouse

rose to present a Petition which was signed by 1,500 of the inhabitants of London and Westminster. The petition, he observed, referred to a most important subject which had already been brought under the consideration of the House. The petitioners expressed their regret that the recent petition of Thomas Davison, complaining of the conduct of Mr. Justice Best in having fined him three times in the course of his defence, should have been thrown out without having been read, and they added that the lining of a defendant during the course of his defence, by a judge, was contrary to the spirit of our laws; and that the House was the place to which applications ought to be made when grievances were complained of arising from what was conceived to be the mal-administration of justice in the courts: and they stated this the more confidently, as they understood that there was a standing committee of that House called the committee for superintending the administration of justice. They also said, that if the House neglected to superintend this administration of justice, they would lose what respect remained for them in the country. The prayer of the petition was, that the House would refer this important point, to the consideration of the committee of justice. He hoped that as this petition did not at all refer to the conduct of the judge, but merely to an abstract question, and as it was couched in most respectful language; that he should not hear complaints against it from hon. gentlemen opposite. The hon. member contended, that that House was the proper place to which applications ought to be made where parties were aggrieved by the conduct of judges. It might be said that, if the party was injured, he ought to apply to the courts of law. He would say, as Home Tooke had said on this subject—"The courts of law were open to all: so was the London Tavern;" or as Goldsmith had said of the sign at the public-house, which; "Invites each passing stranger that can pay." Courts of law and their decisions were not always regarded with such reverence in that House; for when the great question as to the power of un- bailible committal, in the reign of Charles the 1st, was discussed, and an opinion of the Court of King's-bench cited in its favour, Mr. Pym said, the judges had mis-cited the authorities; and, upon his suggestion, a sub-committee was appointed to examine the grounds of the judges' opinion. Upon the resolutions of that committee was founded the immortal Petition of Right. The more he considered the subject, the more he was convinced that a judge had no right to fine a defendant for words uttered in the course of his defence. So far was the language used by Davison from being of an unprecedented character, that a number of instances were to be found in which judges had been insulted in the grossest manner, and yet they had never thought of resorting to this summary mode of punishment. The cases of Prynne, Bastwick and Burton, and the recent ones of Williams, Eaton and Carlile, were precisely in point. As to the argument, that it was extremely improbable that the judges would abuse this discretionary power, he could only reply, in the language of Mr. Burke, that all discretionary power was subject to abuse. Such was the frailty of human nature, that oppression was not merely the probable, but the necessary consequence of vesting an arbitrary discretion in any tribunal. It was impossible to say where the consequences of permitting the judge's to exercise such an arbitrary power might end. It might lead to the destruction of the trial by jury, as had happened in Sweden, through the corruption of the court and the apathy of the people, towards the end of the seventh century. He would state to the House an instance of the way in which this power of fining for contempt was assumed, since the discussion on Davison's petition. On Wednesday last, in the Traverse Court, in Horsemonger-Lane, Mr. M'Creery, a printer, well-known to the readers of Mr. Roscoe's works, observed, that he had discovered a practice, very like packing a jury, which prevailed in that court; for that he had been told they would not admit him among them, lest he should insist upon their deliberating upon their verdict. Upon this the presiding judge said, "Sir, if you do not sit down, I'll fine you for contempt; and ere long you will render yourself unworthy to sit among the jury." This arbitrary power of fining for contempt would become a source of oppression in cases of political libel; because the defence in such cases must, from its very nature, be an aggravation of the imputed offence. In the late defence of Mr. John Hunt, for instance, the editor of "The Examiner," almost every sentence might be called an aggravation of the original offence; and if he had been tried by a passionate or political judge, he might have been fined at every step. The offence imputed to Mr. Hunt was a libel against the House of Commons; and he endeavoured to prove that the greatest men in the country had said much worse things of that House than he had ventured to do; yet the learned judge never thought of fining him for adopting this line of defence. There was no difference in this respect between cases of blasphemy and political libel; blasphemy was itself a species of political libel, inasmuch as it went to impugn the religious establishments, which were intimately connected with the political institutions of the country. But it was said, will you venture to oppose the opinion of the chief justice on this point? Yes, he would oppose the opinion of chief justice Abbott, or ten thousand chief justices, if it tended to subvert the principles of the constitution, by supporting an arbitrary stretch of power. He had no great reverence for the opinions of lawyers on constitutional questions; lawyers were bad legislators. It had been well observed by Harrington in his Oceana, that "Lawyers were feathered and armed with interests directed point-blank against the interests of the people." Lord Ellenborough had declared in 1804, that any thing was a libel which had a tendency to hurt the feelings of his majesty's ministers; an opinion which, considering the character of the gentlemen opposite, and the auspices under which the government was conducted, was calculated to produce a plentiful crop of political libels. The chief justice of the Common Pleas had very recently expressed his disapprobation of some observations of lord Camden, which, he thought, pressed too hard upon judge Alibone, who sat upon the same bench with Jeffries and Scroggs. Mr. Justice Best had also declared, that the writ of Habeas Corpus might be refused on the first application, and was not to be granted as a matter of course. In this opinion he (Mr. Hobhouse) happened to be personally interested, and therefore as soon as he got home—he would forbear entering into particulars as to his place of residence at that time—lie referred to Blackstone's Reports, and found that it had been most inaceurately quoted by the learned judge. The ground of refusal in the case referred to was, that the individual was an alien, and thefore not entitled to the privileges of an Englishman. The solicitor-general had exhibited a similar degree of accuracy, when he had said that all the cases which he (Mr. Hobhouse) had cited, had been before cited by Mr. Cooper in his argument; for it happened, that of all the cases he had produced, only one had been mentioned by Mr. Cooper. Under such circumstances, he thought it was not too much to say, that the opinions of judges were not to be taken for gospel. When the House recollected, too, the way in which many learned gentlemen arrived at the highest distinctions of the profession—when they recollected that his majesty's ministers were constantly on the alert to catch any gentleman who distinguished himself at the bar for the current price of the day, and that the chief-justice-ship of Chester, that legal rat-trap, as it was whimsically termed, was usually kept open for this purpose, it was not very surprising that gentlemen who owed their elevation to ministers should entertain a grateful recollection of the patronage of their employers, and be ready to defend any ministerial job. Was it to be wondered at, that, under such a system, political judges were sometimes to be found? It was not in human nature that they could forget their creators, and always act without bias or political partiality; and therefore, in legislating, that House was bound to take their fallibility into account. He did not, of course, mean to impute to the judges in this country that sort of corruption which prevailed at Florence, where the tender of a few guineas more or less would determine the event of a cause; but if they were free from that gross degree of corruption, it could not be denied, on the other hand, that some instances of a strong political bias had recently occurred, upon which it was impossible for men of sense to shut their eyes. He trusted the House would acquiesce in the propriety of taking this petition into consideration His only motive in bringing it forward, was, to remove, as far as possible, from the administration of justice those blots, which were, perhaps inseparable from human institutions, —"Quas aut incuria fudit, Aut humana parum cavit natura.

Mr. Serjeant Onslow

maintained, that the case of Davison was one in which the right of the judge had been legally exercised. The judge at Nisi Prius had the power of committing, as well as of fining, and the deprival of liberty was paramount to the infliction of a fine. He had voted against receiving the petition of Davison, on the former night, because the petitioner had been guilty of a gross and audacious contempt, for which he was most deservedly punished. He had not looked into precedents; but he recollected an instance where such a power had been exercised. It was the case of a Mr. Stone, who was tried for high treason, and on account of a gross contempt, the judges fined him 10l. Many fines of this kind had been inflicted, which were not in the books, because they had passed sub silentio. He believed there was no lawyer who did not think that the power complained of had been properly exercised.

Mr. Wynn

thought the present petition not liable to the same objection as the former. He was sorry for the manner in which the hon. member had prefaced the introduction of the petition. His speech had been made up of charges, formally prepared as it were, against the judges, which were incapable of being then answered. If the petition, on being read, should appear to attack the opinion pronounced by the House on the petition of Davison, he should oppose its reception.

The petition was then read.

Mr. Wynn

expressed a doubt, whether it could be received, inasmuch as it alluded to what had been said by a member of that House on another occasion.

The Speaker

decided, that where such an allusion was noticed by any member, the petition could not be received.

Mr. Hobhouse

consented to withdraw the petition, in order to rectify the point of form, and to present a similar one so corrected.

Mr. Denman

said, the House might have been saved all this trouble, had they received the petition he presented some evenings back. It was rejected without being read. This he believed was quite unprecedented. Of all the subjects that could come before them, the most important perhaps was the conduct of the judges of the land. The case became a very important one, if it was indeed true, that there existed no precedent for fining a defendant during his defence. The case was argued by Mr. Gurney, and no such precedent had been produced. He did not mean to say that a defendant might not be guilty of a contempt; but so novel a case as this, where a person aggrieved stated that he had been prevented from going on with his defence, through intimidation on the part of the judge, deserved the most serious and deliberate inquiry. It was no answer to say that the defendant had a written defence. He was not bound to confine himself to that written defence. He was not to be precluded from touching on the topics useful to his defence, if he thought proper; and, under those circumstances, the rejection of his petition was a most strange and unprecedented mode of proceeding. It was, indeed, as novel and irregular as the act itself of which that petition complained. As to the formal objection which was taken to the one now before the House, the opinion which the chair expressed should, of course, prevail; but he hoped a similar one would be presented, as it was of the first importance that such practices in courts of justice should not pass unnoticed by the House.

Lord Castlereagh

approved of the decision to which the House had formerly come, and was of opinion, that the grounds of it had not been fairly stated. The learned gentleman had said, that this was the first time in which the House had rejected a petition without hearing the contents of it read, and in so doing had assumed that the House had rejected the petition without taking any cognizance of it. But this was not the case. The learned gentleman had himself stated the substance of Davison's petition; and it was owing to the statement made by the learned gentleman that the House had not permitted the petition itself to be read. If the learned gentleman had said, that he had presented it for the purpose of proposing some mode of remedying the evil complained of, he (Lord C.) should have had no objection to have had it laid upon the table; for the House was undoubtedly a tribunal capable of deciding upon the policy or impolicy of the existing laws: but as the learned gentleman had presented the petition as a complaint for illegal conduct against a learned judge, whose conduct had subsequently been solemnly reviewed and approved of by the Court of King's-Bench, be had thought it his duty to oppose the reception of it; for the House was not a court to review the conduct of the Court of King's-Bench, though it was a court to review the laws and customs of the land. The learned gentleman had likewise opened the petition as an individual case of hardship, and not as a complaint against a judge for improper conduct. If he had stated it as a case of corruption or malversation in the learned judge, the House would certainly have been bound to notice it; but could not be expected to do so when he stated it as a mere matter of law and of legal practice. If the present petition were withdrawn, and brought forward again on a future occasion, free from the objections now made to it, he was of opinion that it ought to be admitted.

Mr. Denman

said, that the noble lord had mis-stated him, for he had informed the House on the former night, that there were three distinct propositions, which he meant to propose in following up the petition.

Mr. Wynn

trusted that, if the petition were brought up again, other points besides those which had been insisted on that night would be omitted, as they were highly objectionable. He had said, on a former night, that the rejection of a petition without reading it was strictly conformable with precedent. He would quote two cases in confirmation of his assertion. In 1781, there were two petitions brought up of which the reading was negatived nem. con. not on account of their containing improper language, but on account of their relating to subjects with which the House thought it improper to interfere. One of them was a petition from one Whitehead, praying the House to alter certain clauses in a bill of Pains and Penalties. The other was a petition from the officers of the Westmorland militia, praying that the House would alter the method in which the business of their regiment was managed.

Mr. Scarlett

said, that as the courts above could not review any proceeding which had arisen out of a contempt in the courts below, the House of Commons was the fit tribunal to review it. If any subject of the realm considered himself aggrieved by a fine or any other punishment inflicted on him in a court of justice, he could have no remedy for the grievance unless he obtained it in that House. In the case of Davison, the fine which had been inflicted upon him had been stated as a ground of new trial. The judges had taken notice of it only as a ground for a new trial, and had admitted that they had no jurisdiction to review the propriety of inflicting it; for every court was supposed to be the best judge of what was or was not a contempt of its authority.

The petition was then withdrawn.