§ Mr. Denmanwished that the entry on the Journals of last session, relative to this case, should be read. I was his intention to have moved, that on this day the House should resolve itself into a committee to investigate this subject further; and then, in that committee, he would proceed to examine witnesses. Since he had come down to the House, he had heard that the gentleman who was the object of this charge was not perfectly prepared to meet it, as he was not provided with counsel. Now, although he did not wish to take any undue advantage of that gentleman, he would persevere from day to day, as far as the business of the House would permit him, until he had brought this matter to a termination. He meant to move that the House should resolve itself into a committee; but, whether that committee should take place this day or on any other, he would leave to the decision of the House. If the gentleman who was the object of this charge thought that the direct examination of witnesses this day, leaving to him the privilege of cross-examining them on a future occasion, would answer his convenience, and be sufficient for the attainment of impartial justice, he was ready to adopt that course.
Mr. Denisonsaid, he had just seen Mr. Kenrick, who, as he did not know whether the charge would or would not be entertained this day, was not prepared with counsel to meet it. He was, however, most anxious that the charge should be gone into as soon as possible. He begged leave, under these circumstances, to suggest, that the discussion should be adjourned until Thursday next.
§ Mr. Peelsaid, he had no objection to that course, but as the matter was before 365 them, he wished it to be decided as speedily as possible.
§ Mr. Hudson Gurneysaid, it did appear to him that the House of Commons, which at that moment was engaged in the consideration of matters of the most portentous nature, ought not to have its attention divided by the introduction of this inquiry. Was it proper, at such a time, that, night after night, the Commons of Great Britain should waste their time in discussing the merits of this story of a Surrey justice and the fleece of a ram?
Mr. Calcraftsaid, that the way to administer substantial justice was, not to proceed until the person accused was prepared to make his defence. They might then proceed with the accusations. With this object in view, the inquiry ought to be postponed until Thursday.
Mr. S. Bourneknew of no means by which this inquiry could be prosecuted, except that of examining and cross-examining witnesses on the same day. It was evident, that a very different aspect might be given to the case, if witnesses were examined directly on one day, and were subjected to cross-examination on another. Such a proceeding would form a most mischievous precedent.
§ Mr. W. Lambcould not help expressing the strong objection which he entertained against going into this inquiry at all. The case, so far as he could comprehend it, was, that the accused party had, without sufficient grounds, committed an individual for felony. Admitting that to be the fact—supposing, for argument's sake, the individual to have been actuated by vindictive motives—still, he contended, that this was not the place to institute a prosecution, or to seek for redress. If such a principle were allowed, parliament would be constantly applied to, instead of the courts of law. Every trespass, every trifling error, committed by a magistrate, however innocently, would be brought before parliament. He would ask, were they fit to exercise judicial functions in a case like this? Did it make any difference whether the accused party was a magistrate for Surrey, or one of the justices of the great session of Wales? Some of the acts alleged against him were neither perpetrated in his magisterial nor judicial capacity. The House, it seemed, was called on to exercise its judgment, not merely on any thing improper that might appear after judicial inquiry, but they were asked to go further, and to look into any act of 366 his life which might be pointed out, no matter by whom, as oppressive or fraudulent. Was the House ready to assume a power to that extent? Was there no remedy, if a magistrate misbehaved himself, but an appeal to parliament? Every case of injury, which the complaining party had the power of prosecuting in a court of law, might be brought before parliament, if the system was once tolerated. He did not think that this was the constitutional course; and he must say, that of all things, he viewed with the greatest sorrow and alarm, a judicial sentence passed by a popular assembly. If that House proceeded to pronounce sentence of condemnation on individuals, they would, in the end, shake the whole system of constitutional law, and lay the foundation for violence and injustice. Of late years motions of this kind had been made, which, as they enlisted the feelings of men, were exceedingly dangerous. Last session, a motion was submitted to the House relative to the case of Mr. Smith, of Demerara. The House was called on to vote a condemnatory address; and, in support of the case, documents were adduced, not one of which would have been received as evidence in a court below. Any precedent of this kind he considered most dangerous; and therefore he intreated the House to proceed no further in this business. There might be some inconvenience in this course; but it would be better to put up with it, than to encounter the peril which an opposite line of conduct would certainly create.
§ Mr. Broughamwished to say one word with respect to the evidence adduced in the case of Mr. Smith. He admitted, that there was not one document which would have been received in a court below in this country. But, it unfortunately happened, that the evidence on which that case was founded, though it would not be received here, was received in Demerara.
§ Mr. Peelfelt very strongly the observations of his hon. friend; and, if this had been an original motion, perhaps he would have acceded to his view of the case. But, as the inquiry had been already entertained, he thought there would be considerable difficulty in stopping where they were.
§ Lord John Russellsaid, it was a principle of the constitution, that judges should only be removable for partial or improper conduct; and it seemed to him 367 quite clear, that when a serious stain was thrown on the character of a person in a judicial situation, it was the duty of that House to inquire whether the individual was fit to exercise the important functions attached to his situation. This was due to the constitution of the country and to the judges themselves, whose respectability alone could be supported by the general opinion which the country entertained of their uprightness and integrity. Whether a court of law was or was not open to the complainant, was a matter of little importance in this case. The redress granted in a court of law was redress to the individual for the injury he had suffered. But when the subject came before that House, it was not for compensation to the individual. The question then was, what step should be taken for the sake of the public, with respect to a judge who was charged with having violated the principles of justice in a transaction between man and man? The best way, he thought, would be to proceed with the case on Thursday. The entry in the Journal, of the 27th June, 1825, was then read, as follows:
"Mr. Denman, in his place, charged Mr. Kenrick, one of his majesty's justices of great session in Wales, a justice of the peace for Surrey, and recorder of Dover, that he preferred before a neighbouring magistrate a charge of felony against a poor man named John Franks, without any sufficient proof of the same; on which charge the said John Franks was committed to prison, where he remained till he was discharged at the sessions by the verdict of a jury, acquitting him instantly on the same evidence which had been adduced by Mr. Kenrick as the ground of his commitment:—That, during the imprisonment of the said John Franks, Mr. Kenrick made repeated offers to procure a lenient sentence to be passed upon him, provided he would plead guilty to the charge; and applied to the clerk of the peace, and the chairman of sessions, to permit him to withdraw the prosecution, alleging Franks's good character as a reason for wishing to do so:—That, shortly afterwards, in answer to some public animadversion on his own conduct, he wrote and published a ibellous letter against the said John Franks, calumniating his character, and imputing to him crimes of which he was not guilty.'"
§ Mr. Denmansaid, that as he had received no notice of the opposition which 368 had broken out upon this occasion, he wished, before he made his motion, to know whether it was intended formally to oppose it; because, if such an intention existed, he should be sorry to have his lips sealed, by simply making that motion in the beginning, instead of reserving it for the end of such observations as he might deem it proper to address to the House. He thought it was impossible for any man who had read the first page of the history of England, to doubt that it was the duty of parliament to inquire into the conduct of judges. Were they to pause in exercising that power, because his acts were amenable to the law of the land? The very fact that they were contrary to the law, was an aggravation of the offence. If any man really entertained doubts on this subject, he should like them to be expressed. He thought the House had acted most properly in entertaining this inquiry last session; and he was sure that they would be guilty of an abandonment of a most sacred duty, if they did not proceed with it now. He should move "That the said Charge be considered in a committee of the whole House on Friday; that a copy of the Charge be communicated to Mr. Kenrick; and that Mr. Kenrick have leave to attend the House, on Friday, by himself, his counsel or agents."—Agreed to.