§ Lord Wharnclifferose, pursuant to notice, to move for a copy or copies of any petition, memorial, or other communication made to the Lord Chancellor, from any person or persons residing at Leeds or its neighbourhood, or in the wapentake of Skyrac, respecting the insertion of certain names in the commission of the peace for the West Riding of the county of York. Their Lordships would recollect, that a short time back, his noble Friend, the lord-lieutenant of the West Riding of the county of York, moved for certain papers connected with the insertion of certain persons' names in the commission of the peace in the West Riding of the county of York, and he should not have thought it necessary to follow up that motion, had it not been for what had fallen on that occasion from the noble Baron, the Chancellor of the Duchy of Lancaster, which, if allowed to pass unnoticed, would be likely to do great injury to the course of justice. The case of the West Riding to which his noble Friend had alluded, he would endeavour to state to their Lordships, 254 and he thought he should not find it difficult to show, that the names in question had been inserted for the express purpose of introducing into the magistracy political partisans. The borough of Leeds contained several townships, and their Lordships well knew, that by the Municipal Corporations Act, the borough of Leeds had a separate commission of the peace; and that the borough magistrates did the whole duty in the borough of Leeds, the county magistrates having no power to interfere. Now, on the 23rd of February, 1836, he had brought before their Lordships several appointments which had taken place under the Municipal Corporations Act; and he then endeavoured to show, that the power of appointing magistrates under that act, had been undoubtedly used for party purposes, and to the exclusion of proper persons who ought to have filled the office of magistrates. It so happened, that twenty-two persons were named upon the commission of the peace for the borough of Leeds; and out of those, seventeen were of Government politics, and four others were very unlikely to act at all; leaving, therefore, seventeen Whigs to one Conservative in the magistracy. Now, he should not have objected to the appointment of these individuals, who were certainly very respectable persons, if it had not been the case, that Leeds was a borough before the Municipal Corporations Act passed; and if other individuals had not acted as borough magistrates with acknowledged ability and impartiality, who were therefore in some sort subjected to an affront by an exclusion from the new commission, simply because they differed in politics from a majority of the persons who composed the town-council. He came now to the appointment of magistrates for the West Riding. He would show what was the amount of business transacted by the borough magistrates; and he would add, that he had yet to learn, that the business was performed negligently, or with any thing else, but impartiality. It appeared, that a petty session was held at Leeds one day in every week, on the Tuesday; and the return of cases heard from January, 1837, to January, 1838, was but 200; averaging four cases weekly, and without any prospect of increase—the hours of attendance for the magistrates being from half-past twelve till about three o'clock. He thought that this showed, that as far as the business of 255 the borough of Leeds went, there was no great necessity for any increase in the number of magistrates for the West Riding. There were eighteen magistrates, of whom eleven attended, three did not act, although they had qualified, and four had not qualified at all. Well, then came the new commission; and when it came, his noble Friend (the Earl of Harewood), was quite ready to attend to any application which might have been made to him, showing, that magistrates were wanted in any particular part of the county. He could bear witness, that his noble Friend had frequently inserted the names of persons in the commission of the peace, who were adverse to him in politics, merely on the ground that magistrates were wanted in any particular part of the country. He had himself often recommended gentlemen of politics different to his own to his noble Friend, for from the friendship and intimacy which had so long subsisted between them, and the length of time during which he had been connected with the administration of justice, his noble Friend did him the honour to ask his advice occasionally, and to pay some attention to his suggestions; and he could say, that his noble Friend had never exhibited the slightest hesitation in complying with such a recommendation. No application, however, was made to his noble Friend; but, curious enough, he was told to be prepared for the circumstance that had since taken place; for his informants told him, that they knew that an intrigue was going on to put certain persons in the commission of the peace. As he had said before, no application was made to his noble Friend; and the first thing he heard about the matter came in a letter from the noble and learned Lord on the Woolsack, asking, if his noble Friend had any objection to the nomination of those gentlemen. Now, what he wanted to know was, what were the grounds on which this nomination was made. He wished to know, whether it had been represented to the noble and learned Lord, that there was any want of magistrates, or whether the magistrates had been negligent in the execution of their duty; and if not, then he could only suppose that certain persons in Leeds were desirous of advancing the interests of a particular party in that town, and that the whole was a party move from first to last. It so happened, that every one of the gentlemen appointed lived in the borough of 256 Leeds; and all, he believed, within the very town itself. They had no connection with the county, and were all merchants in Leeds, and, therefore, if they were to be put in the commission of the peace at all, they might have been put in the commission of the peace for the town itself. He thought it impossible to say, that the commission of the peace under the municipal corporations, was fairly constituted; and yet the noble and learned Lord, and the Chancellor of the Duchy of Lancaster had said, in that House, in as many words, that if they found the magistrates to be all on one side, they would appoint persons on the other side, in order to make a balance. They said, that it was not in human nature for persons to be satisfied with the decision of a bench of magistrates who were opposed to them in politics. He believed that it was no such thing, and that the applications of individuals to the magistrates had nothing whatever to do with politics. He believed, that parties did not care one snap of the finger what were the politics of the magistrate to whom they addressed themselves, provided that their complaints were heard and adjudicated on with impartiality. He would say, therefore, that this principle of putting magistrates on the Bench in order to restore a balance was most injurious. He wanted to know where it would end? If the noble and learned Lord corrected and doctored the commission of the peace according to his taste, his successors might do the same. The noble and learned Lord would not be Lord Chancellor for ever. Were other persons holding the same situation to follow the same course? But the noble Baron the Chancellor of the Duchy of Lancaster went further than the noble and learned Lord. He said, that if there were magistrates on the Bench of particular religious opinions, he would take care to place others upon it who entertained different views on that subject. Now, the principle for which he contended was this—that it was never meant that in the appointment of a magistrate an inquiry should be instituted into his politics or his religion, but into his character, his station in life, and his education. He had thought it right to state this, because he did think that the assertion of a contrary principle, coming from high authority in that House, must do a great deal of harm out of it, and that these references to politics must tend to shake the confidence of the 257 people in the administration of justice by the gentlemen of the county. He had reason to know that the course of conduct which had been adopted in the case of the Leeds magistrates had produced much agitation in other parts of the West Riding. He knew that there had been other applications to the noble and learned Lord to appoint fresh magistrates, on the ground that the present magistrates were Tories, and a most curious memorial had been addressed to the noble and learned Lord by the vestry of Marylebone, in which they found no fault with the present magistrates, who were, as they said, all very well, but in which they desired to have persons appointed whose opinions and habits, to use their own words, were in accordance with those of the great bulk of the inhabitants. This was the case in Marylebone, and this was what he had reason to know had taken place in other parts of the country. He had framed his motion for a copy or copies of any petition, memorial, or communication, addressed to the Lord Chancellor from any person or persons residing in Leeds or its neighbourhood. He was, however, not sure whether any petition or memorial had been transmitted. He, undoubtedly, thought there ought to have been, but perhaps there was merely a private communication; and if so, he should be the last man in the world to require that it should be divulged. He could not, however, help saying that, as it would appear, the Member for Leeds had been in communication on the subject with the Secretary of State, and that he had been the person who had furnished the list. He did not think, that persons who had stood more than one contested election were exactly the fittest parties to recommend individuals for the Bench. There were, however, persons in the town who were constantly (and he spoke from his own knowledge) about the Home-office, and who attempted to drive these matters, and who were not satisfied with having obtained corporations. How those persons were paid he knew not, but they undoubtedly must be paid, for the parties he alluded to were professional men, who would not work for nothing. Such persons, he repeated, were bad advisers on these subjects, particularly when the Lord Chancellor had such authorities to refer to as the lords-lieutenant. It was true, the noble and learned Lord was not bound to 258 take their recommendations or to act on their statements, but he did think it would be far safer to take the opinion and advice of those who must act with some degree of responsibility rather than listen to private persons who were more or less actuated by party and political objects, or who had stood contested elections. The noble Lord concluded by moving pursuant to his notice in the terms above stated.
§ The Lord Chancellorsaid, that the noble Baron had addressed their Lordships after he had spoken on the former discussion on this subject when it was brought forward by a noble Earl (Earl Harewood), the lord-lieutenant of the West Riding of Yorkshire, and who, after the motion had been debated at length, withdrew it. The noble Baron had then an opportunity of stating all that he had that night addressed to the House. The motion that was brought forward on the former occasion had, after ample discussion, been objected to, and the objection was considered valid on its being suggested, that the production of the letters that passed between the Lord Chancellor and the lord-lieutenant of a county, respecting the appointment of magistrates in it, were of a confidential character, and that their production might seriously affect individuals, and, therefore, that they were not such as should be produced, He, in that discussion, was under the necessity of reading some of those letters, and a noble Marquess, at the time, thought some prejudice might be done to individuals by his doing so; but he had taken care to exclude the names of individuals, and thus had avoided any public inconvenience. The noble Earl withdrew his motion, and the noble Baron knew what had taken place, and seemed to concur in the course that was taken with respect to the motion. The noble Baron made no observation at the time; but the next day he came down to the House, and gave notice of the present motion, as if the noble Baron thought he could say more, or say it better, than he had done on the previous occasion, and this was a motion for the very same purpose, as far as the communications to the Lord Chancellor were involved, as was made by the noble Earl. The noble Earl's motion referred to the appointment of magistrates in the neighbourhood of the place which was the subject-matter of the noble Baron's motion, namely, the wapentake of Skyrack. He repeated, that the noble 259 Baron came down the next day after the noble Earl's motion for the purpose of giving notice of his intention to move for papers similar to those demanded by the noble Earl, and after the noble Earl had thought proper to withdraw his motion. The noble Baron had also moved for any communications that had passed between the Lord Chancellor and any person or persons respecting the number of names in the commission of the peace. This, he thought, was a proposition or demand which could not be maintained for a single moment, and indeed the noble Baron admitted it, for he said, that he did not wish to have any private letters produced, nor did he desire, that any such documents should be published. The noble Baron also stated, that he did not wish for the production of the communications that had passed between the Lord Chancellor and the lord-lieutenant of a county on the subject of appointing individuals to the commission of the peace; and, in short, he declared, that he did not require anything but the petition or memorial to the Lord Chancellor on the subject of those appointments, which memorial he afterwards admitted, that he did not know whether it had any existence or not. It, therefore, would appear, that all that the noble Baron wanted was the opportunity to make another speech on this subject. The noble Baron admitted, that he did not know whether this supposed memorial had any existence or not, but he assumed that it had, for the sake of his speech. The noble Baron repeated what he had stated on the former debate on this subject, and had fallen into the same mistake which the noble Baron then fell into, and which he took the opportunity of correcting at that time. The noble Baron had again assumed, that he had declared that when he thought that a body of magistrates of opposite political opinions had been appointed, that he would take care to appoint others of opinions similar to his own. He had before corrected this erroneous statement of the noble Baron, and he regretted that he should once more have fallen into it. What he then said was, that when the bench of magistrates was composed of men exclusively of one species of political opinion—and he took care to guard against referring to any particular bench of magistrates—but when there existed an exclusive opinion, and when the bench of 260 magistrates consisted of men of only one political creed, the same confidence would not be reposed in them by the public, as it was desirable they should possess, and as would be reposed in them if they were so varied as to embrace men of different political sentiments. At the same time, he stated, that he did not for a moment mean to assert that magistrates of any particular political creed would interfere improperly with the administration of justice, or would decide otherwise than the justice of the case demanded. What he meant to point out was, the inconvenience that might accrue from the want of confidence of the people in a bench of magistrates so constituted. The noble Baron stated correctly that an application was made by the Lord Chancellor to the lord-lieutenant on the subject of these magistrates, and no complaint was made, nor opinion expressed against their appointment by the lord-lieutenant. He did not like to state any thing on this subject in the absence of the noble Earl, and should have been better pleased if the discussion had been renewed in the presence of that noble Earl. As it was, however, he would only refer as little as possible to the communications that had passed on this subject between himself and the noble Earl. That noble Earl stated, that he had no objection to those persons as individuals, as he believed them to be unexceptionable. The noble Baron also said, that he had no objection to those gentlemen. The whole question, then, was whether the Lord Chancellor had performed his duty improperly in recommending this exercise of the prerogative of the Crown in appointing those individuals magistrates. It was said that the Lord Chancellor of this country was always an active member of a political party, and was therefore likely to be influenced in his opinions, and have more applications, and to hold more frequent communications with the members of one political party than with those of the other. As regarded himself, he distinctly denied, that any more in that, than in any other part of his duty he had applied to any one political party, or appointed only those that entertained the same political opinions as himself to offices of this kind. It was his duty to take care that a fair share of both parties was appointed to the magistracy, and he was satisfied that the result of examination 261 would prove, that he had exercised the duties intrusted to him with fairness and justice. But it now appeared, that the Lord Chancellor could not be fairly in-trusted with the appointment of the magistracy, because he was connected with a particular political party; but if the Lord Chancellor could not be trusted with this duty, could the lord-lieutenant of a county be trusted better than this great officer of the Crown? Was the lord-lieutenant less tainted with political bias, and more likely to form a calm and just conclusion, than the Lord Chancellor? It was now, however, said, do not leave this duty to an officer who was responsible for the proper selection of persons to the magistracy, but intrust it to one who may, without control and without discovery, suffer his political feelings to bias him in his choice. He did not go into details on the former night's discussion, and he thought that it was better for him to abstain from doing so; and he knew, that this was the opinion of many noble Lords near him, and he certainly should not do so on the present occasion, unless he was driven to it. Neither the noble Earl on the former occasion, nor the noble Baron that night, had said anything against the propriety of conduct nor the integrity of the persons who had been thus appointed; but it had been stated to him by those whom he considered competent authorities, that they were most proper persons to be selected for the commission of the peace. It was then admitted, that they were proper persons, and against whom the noble Earl (the lord-lieutenant of the county) said that he could say nothing; and the noble Baron said, that he had no objection to them as individuals: therefore he contended that he had properly exercised his discretion as Lord Chancellor in introducing certain persons to the commission of the peace against whom no complaint could be made. The discussion that had taken place on this subject had led him into further investigation, and he was satisfied, not only from what had passed in that House, butfrom further information which he had received on the subject, that there was not one of the persons whose appointments had been called in question by the noble Baron, who was not a most proper person for the commission of the peace. The noble Baron said, that he preferred the former list of magistrates. 262 Why did the noble Baron prefer it? Not because he had any individual object, for he acquitted the noble Baron of anything of the kind. Supposing, however, that the noble Baron had a certain interest in this district, and had been induced from some reason or other not to be favourable to the new list. He was sure that the noble Baron liked the old list better than the new list, but it did not, therefore, follow, that the new list was injurious to the public interest. He confessed, that for his own part he did not dislike the discussion that had taken place on this subject, because it served to dissipate the error which had got possession of certain minds, that the lord-lieutenant of a county and not the Lord Chancellor was the proper person to select and appoint the magistracy; he was extremely glad to have an opportunity of dissipating this error. It showed how soon a habit grew into a right. They had frequently discussed this topic during the last and the present Session of Parliament, and over and over again he had stated what he considered to be the relative duties and situations of Lord Chancellor and the lord-lieutenant of a county on the appointment of the magistracy. The noble Baron, however, was not one of those who laboured under the delusion, for he distinctly stated, that it was the duty of the Lord Chancellor to appoint the magistracy; but, entertaining this opinion, he was at a loss to imagine how the noble Baron arrived at the conclusion which he had stated at the end of his speech. The law vested the power of appointing magistrates in the Lord Chancellor and not in the lord-lieutenant of a county; but at the same time, as the former had not the same opportunities of possessing local information as the latter, it was right and proper that the Lord Chancellor should consult the lord-lieutenant as to the qualifications of the persons to be appointed magistrates. It was not easy for him to tell when the practice grew up of first communicating with the lord-lieutenant previous to appointing magistrates, but from what had fallen from Lord Eldon it would appear that that noble and learned Lord supposed that he had introduced the custom. He found that Lord Eldon, in 1831, in a debate on a subject very similar to the present, namely the Lord Chancellor of that time appointing a certain individual to the commission of the peace without consult- 263 ing the lord-lieutenant of the county, said,
The usual sort of intercourse which was maintained between the Lord Chancellor and lord-lieutenants of counties divested the exercise of the duty which devolved upon them of that degree of responsibility which would otherwise attach to it if exercised solely on the responsibility of one party or the other. The noble and learned Lord on the woolsack, in justifying his conduct in the present case, had spoken of it as a departure from the general rule; and he therefore hoped that in future the usual rule as to the intercourse between the Great seal and the lord-lieutenants of counties would be adhered to. For his own part he (the Lord Chancellor) had hoped that the custom would not be departed from. With regard to filling up commissions which had been omitted, and no reasons assigned for such omission, he was aware that such things had been done by Lord Chancellors. The noble and learned Lord mentioned an instance which had occurred while he held the Great Seal, where the bishop of Durham, who was accustomed to send up a new commission every year, had on one occasion sent it up, omitting two names, and without assigning any reason for the omission. On making an inquiry into the matter he (Lord Eldon) found, that there was no reason for excluding those names from the commission, and he had them accordingly placed there. This subjected him, as the Chancellor of the day, to what all lord chancellors must be subjected to; and he must entreat the noble and learned Lord not to take the alarm if he were so handled also—if he were almost pulled to pieces for what he might do, or not do, as Lord Chancellor.That attack was very similar to the present, and what was true in 1831 was equally true in 1838. The noble and learned Lord went on to say,The second case which had occurred during his chancellorship was that of a Welsh magistrate, who had been removed from the commission on a charge of having appropriated to himself certain fines which he had imposed upon persons who had been convicted of offences before him. The persons who had made this charge made it upon affidavits, and upon those affidavits those persons were convicted of perjury. He had immediately restored this magistrate to the commission. The third case—he would not mention names—was one in which the individual removed had saved him (Lord Eldon) the trouble of striking his name out, by resigning. In conclusion he would only observe, that he thought there ought to be a free and liberal communication between the lord-lieutenants and the Lord Chancellor. He had protected himself from that maxim, that the Lord Chancellor was responsible for all such appointments, by calling to his assistance those who must know better than he 264 could know who was fit and who was not fit to be in the commission."*He had, therefore, the authority of Lord Eldon, who, however, had assumed that he had introduced the custom of consulting the lord-lieutenant as to the appointment of the magistracy; but this was a mistake, for that noble Earl did not introduce it, although he took credit to himself for having done so. He could not tell precisely when this grew into a custom, but he had endeavoured if possible to ascertain when it commenced. He gave directions, therefore, that it should be traced back; but as there was no office connected with the Lord Chancellor for preserving these papers, he had not ascertained the point exactly; he had, however, succeeded in procuring evidence to shew that in former times it was frequent for the Lord Chancellor to communicate with the lord-lieutenant on this subject. The truth was, that the appointment of the magistracy was entirely the prerogative of the Crown, and by the Crown placed in the hands of the Lord Chancellor as keeper of the seals. Nor was the time remote when the Crown interfered by the Secretary of State to place individuals in the commission. For instance, he found, that in 1710 there was a letter from the Secretary of State (Lord Dartmouth) to the Lord Chancellor, recommending certain persons should be appointed magistrates in the county of Derby. Again, in 1790 a communication was made, signed Henry Dundas, in which it was stated, that his Majesty had been graciously pleased to signify his wish that certain gentlemen then named should be appointed in the list of magistrates for the county of Middlesex. This was done so accordingly. [Lord Brougham these were police magistrates.] No, they were county magistrates. Again, he held similar communications in his hand dated 1798, 1780, and 1713. In some of these cases the course which was followed was very similar to that generally followed at present, and in other cases the communication merely included a list of the names of those persons to be inserted in the commission of the peace, and it appeared that afterwards a letter was sent to the lord-lieutenant informing him what had been done. Now, he thought, that the system generally followed at present was much better than that which was for-*Hansard, vol. v. third series p. 11. 12.265 merly acted upon, for valuable information must be obtained by communicating with the lord-lieutenant. But this was a very different system from being obliged to communicate and to abide by the decision of the lord-lieutenant as to who were proper persons to be magistrates. The noble Baron did not lay this system down in theory, but if the object of his motion was, not to follow it up in practice, he did not know what it was; for according to the opinion of the noble Baron, a Lord Chancellor must not only not ask a lord-lieutenant whether such and such persons should be appointed magistrates, but that he must wait until the lord-lieutenant sought him to question him on the subject. The noble Baron most distinctly stated, that he objected to the Lord Chancellor putting questions to the lord-lieutenant respecting the names of these persons; but, with the exception of making this proceeding the subject of his motion, was there any thing respecting the appointment of these magistrates of which he did or of which he had the least reason to complain? If this part of the prerogative of the Crown were to be exercised on the responsibility of the Lord Chancellor, as other branches of the prerogative, he knew not how it could be done in a less exceptionable manner than by asking the lord-lieutenant of a county if he was aware of the existence of any objections to the appointment of a person to the bench. If a lord-lieutenant should state any objections, of course the Lord Chancellor would pay the highest respect and attention to the information that would be thus communicated, and while he would be bound to take into his most serious consideration all information on the subject, it would be his duty to exercise his own judgment and discretion in the appointment that he made. He had never himself departed from this principle, and he had never found that any other lord-lieutenant complained of the rule being complied with when the appointments were made. If the noble Lord complained of this, he should be glad to know how he could exercise the duty belonging to him more properly than in manifesting the greatest caution in filling up the lists of magistrates. He had never heard it suggested how he could more beneficially and carefully perform his duty of filling up the list of magistrates than by pursuing this course. He had 266 not the least doubt that if the practice of appointing magistrates rested with the lord-lieutenants, that they would almost in all cases examine the persons about them, and lend their ear to those near them according to the circumstances of the case, and by this means party feeling might often interfere in those appointments. By adopting this course, then, they would be handing over the power to an irresponsible public officer, for the lord-lieutenant was not responsible for the appointment of magistrates. He was now consulted as to the appointment, but he was not responsible for it, as it was the act of the Lord Chancellor, and that officer was alone responsible for the exercise of that duty. It was absurd to say that the Lord Chancellor should not exercise this power, for pursuing the course that had been suggested, the power would be left in the hands of the lord-lieutenant, who would not be responsible for the selection of proper persons. Every lord-lieutenant that he had conversed with on the subject, admitted, that as a general rule, the plan that had been laid down by the Lord Chancellor was good; but none would admit, that it was applicable in any particular case, and no one had suggested a mode in which the right could be maintained, unless in the mode in which he had stated. He was at a loss to see what was the object of the motion. The noble Baron said, that he did not wish to see the letters that had passed between the Lord Chancellor and his friends on this subject, nor did he desire to see the communications that had passed between the lord-lieutenant and himself; but the noble Baron stated, that he was anxious to see the memorial or petition, if such a document existed; and if such a paper existed the noble Baron could see it, as the return could be ordered by the House. He repeated, that he was unwilling to enter into a detail on this subject, but if other circumstances were stated, he should probably be compelled to enter into a minute statement as to the reasons which induced him in this particular instance to appoint other persons in addition to those already in the commission of the peace. He should deeply regret being called upon to do so; but if he were compelled, he had no alternative but entering upon a lengthened detail. He should not, however, otherwise do so, and should, therefore, at pre- 267 sent abstain from going into the subject, as he thought it would lead to nothing but mischief. A subject similar to the present had occupied the attention of the House in 1836; he meant the appointment of borough magistrates. He, both then and now, felt that no person should be excluded in consequence of their political opinions, but that all parties should be admitted, and this principle was acted upon by him, and he believed successfully. He was sure that neither the noble Baron nor any other noble Lord could prove otherwise. He was sure that the noble Baron could not prove that any principle of exclusion had been acted upon in any case in consequence of a person entertaining peculiar political opinions. He had all along contended that there should be no exclusion on any such grounds; and if there was any exclusion, it was a vicious state of things, and required at once a remedy. If from any cause, such as violent party feeling, such a state of things prevailed, the commission of the peace in the district was not in a sound state, and it was the duty of the Lord Chancellor to correct it. Did the noble Baron assent to this? Did he mean to assert, that there had been no such thing as exclusion in the commission of the peace?
§ Lord Wharncliffesaid, that there was no exclusion in the commission of the peace in the county, but there had been in the borough magistracy.
§ The Lord Chancellordenied, that there had been anything like exclusion in the appointment of the borough magistracy. At the same time the noble Baron said, that there had been no exclusion as regarded the magistracy of the West Riding. He was very unwilling to be pressed with a discussion on this subject, in the absence of the noble Earl. When, however, the commission of the peace in a county was to a certain degree exclusive, it, nine times out of ten, was not the fault of the lord-lieutenant, who was too high-minded to lend himself to such a purpose. But it followed almost as a matter of course, that the lord-lieutenant had consulted those of the same political feeling as himself, and as they were probably lower in the scale of intelligence, they suffered the warmth of their feelings to carry them away, and to exaggerate greatly the alleged defects of those who happened to be their political opponents. 268 By this means, almost exclusive commissions of the peace had grown up in some places. He had thus attempted to go through the observations of the noble Baron, and he hoped that he had furnished a satisfactory answer to them. Before he sat down he was only anxious to set himself right as to certain cases which were alluded to on the former occasion by the noble Duke (the Duke of Wellington); and he was the more anxious to do so, to prevent that impression arising which would otherwise be the case, in consequence of the great weight that was attached to all that fell from the noble Duke. The noble Duke had alluded to three distinct cases. He said, "he would suppose, that a gentleman was recommended to the noble and learned Lord who was what was called in the ancient acts of Parliament a 'barrator'—a person who was bound over to keep the peace. But where, he would ask, would the noble and learned Lord in his canvass find a recommendation of this kind? Would he receive it from the lord-lieutenant of the county? Would it be from any gentleman of rank or station in the county who would have a right to correct the noble and learned Lord on the subject? No such thing. It would be from some political partisan. He did not mean that the party approached the Lord Chancellor himself; but he approached somebody else, that had the ear of the Lord Chancellor. It was from such a source that such a recommendation came." He had taken the liberty of asking the noble Duke whether he referred to any transaction in which he knew the party, and the noble Duke did not choose to give him an answer. Under these circumstances, nothing more remained for him to do, than to profess his ignorance of what was alluded to. He should probably have remained in ignorance of the matter had not some person, in one of those sources of public intelligence which sedulously laid such statements before the world, furnished him with a clue to discover who was the individual alluded to in the debate which had taken place in that House. Did not the noble Duke allude to what had occurred in February, 1835, with reference to the individual in question?
§ The Duke of Wellingtonsaid, that he did not; and it was evident, that the noble and learned Lord was not referring to the same person that he had alluded to.
§ The Lord Chancellorobserved, that if that was the case, he was sorry to find that there were two cases of barrators. He could not help regarding this as an unfortunate occurrence, for in all his communications with the noble Duke, he had been treated by the noble Duke with the utmost possible courtesy, and he regretted that this occasion had arisen. He certainly thought, that he had got the right man, but it appeared, that the case that he had found was another case of a barrator, he could, therefore, only declare, that he was quite ignorant who the individual was, that had been referred to by the noble Duke. There were two other cases referred to by the noble Duke; the first was described as follows:—"A gentleman goes and stands a contest at a general election; after having stood this contest he is appointed a captain of one of her Majesty's ships; he goes to sea, and then the Lord Chancellor writes, that it is necessary, that this gentleman should be put in the commission of the peace. But the Act of Parliament required, that the magistrate should be resident." Now, the facts of this case, when mentioned, would he was sure, take the sting out of the observations. It was true, that he had been applied to by the father of the gentleman in question to place his son's name on the commission of the peace. This was in the summer of last year, but as he knew, that a new commission would be required, he did not take immediate steps in the matter. In the autumn he had recommended the name of this gentleman to the notice of the noble Duke. This was in the month of October; and it appeared that the gallant officer had been appointed to a ship, since the application of his father. He did not think, that he was liable to any very heavy censure for the part that he had taken in this matter, as he believed, that all parties would admit the gentleman to be unexceptionable in point of station and character. But, after all, this case showed the propriety of communication taking place on this subject, between the Lord Chancellor and the lord-lieutenant of a county. There was another case which the noble Duke had alluded to, that of a gentleman who had been an attorney, and who, having for several years carried on the business with a firm, at length became a sleeping partner in the business, and was then subsequently appointed to the office 270 of a magistrate. Hearing this declaration, he was desirous to know if he had committed the offence which was alleged, and he applied to the partners of the house, which was a most respectable firm in the city, and he learned, that the gentleman referred to, had been a partner in the house, but for twenty years he had had no connection with it. As this information had been derived from a quarter which could not be doubted, he must presume, that the noble Duke had been misinformed as to the communication, which he had made to the House. He had had no object in making this statement but that of relieving himself from the pressure of what had fallen from the noble Duke, and which always carried great weight with it. He must feel in the same manner and in the same degree as to all the counties, and if he was satisfied of the course of duty which he ought to perform, he must and would perform it in the way which it suggested itself to him was the right one. He was glad always to avail himself of the advice and assistance of lords-lieutenant in such cases, but if he found, that they would not assist him, he must obtain the best intelligence he could upon the subjects into which it became necessary for him to inquire, and must act accordingly. This had been the course which he had adopted hitherto, and which he should continue to adopt, until he was satisfied, that he was in error. When he was so satisfied, he should be content and ready to alter the plan he had pursued, but at present, he conceived, that that plan was the best calculated to secure the interests of the country.
§ The Duke of Wellingtonwished to remind their Lordships of what had passed on this subject a few days ago, when the noble and learned Lord stated, in answer to his noble Friend, that he considered it to be his duty to canvass by way of inquiry, with respect to proper persons to be appointed to the magistracy of the county of York. On that he differing from the noble and learned Lord, said, that such a proceeding was not quite fair towards the lord-lieutenant. To canvass first, and then to go to the lord-lieutenant and ask him if certain persons already recommended were fit and proper persons to be put in the commission of the peace, was not fair towards the lord-lieutenant, because he was placed in a situation to reply whether the person proposed was proper 271 or not, and to say he was not proper for this reason, or for that, while he would be liable to all the consequences of giving that private and confidential information. He confessed, that he, for one, could have no confidence in such a description of inquiry. He could not write in confidence to a person, knowing, that he might hereafter be called on to state the reasons for the opinion he gave. He thought, the persons canvassed and consulted in the way alluded to must be people of a low description—not the gentlemen of the county—not men of property and influence, but persons of the lowest description. He had stated, that must be the case; he had noticed three cases which had occurred to himself, in every one of which he was positive in asserting, that the noble and learned Lord could not have received the recommendations from persons of character and consideration in the county. With regard to the first case alluded to by the noble and learned Lord, he had pointed to a gentleman against whom he had nothing to say; he was a brave officer, and had served with him, and had done himself honour. But when a person had been bound over to keep the peace, he certainly did feel, that he could not recommend him to be placed in the commission of the peace. With respect to the other case to which the noble and learned Lord had alluded, he had stated to the noble and learned Lord the objections which he entertained to the appointment of that individual—namely, his being a partner in a house of business in the city. He had stated those objections twice to the noble and learned Lord, and he wished distinctly to observe, that he had objected to those gentlemen on no party or political grounds. When he was called upon to recommend a list of magistrates, he had ever recommended all who were recommended to him, and in February he had acted on that principle, and had excluded no one except the gentleman who had been stated to be guilty of barratry and the gentleman who was a sleeping partner in a house of business. There was, therefore, no exclusion in the list which he had sent up to the noble and learned Lord, except in the two cases to which he had alluded; and for the exclusion of those two persons he had stated his reasons to the noble and learned Lord. Now, what was the law on this subject? He would read a short extract to their 272 Lordships which was very plain and very short, and showed distinctly who the persons were who ought to be appointed to the magistracy. The law said that:—
The justices of the peace must be good and loyal men, no maintainers of evil, and of good character in the county. They must be selected from men of the best reputation in each county, and some should be learned in the laws. They must be knights, esquires, and gentlemen of the land, resident in the county and the qualification for the office was to be an income of 100l. annually, clear of all deductions. No practising attorney or solicitor to be capable of being appointed.That was the law, and even though he might have been mistaken as to the strict applicability of the law to the case of the gentleman who had been alluded to as a sleeping partner in a house of business, yet he contended, that the presumption was, that such a person was not qualified, as the law stood, to be appointed. What he contended was, that the magistrates should be selected, and that individuals recommended by all sorts of persons, ought not to be appointed. Such was the obvious meaning of the law, which clearly showed, that the most respectable and most influential men in the county were the persons to be selected as magistrates. With respect to the principle which the noble and learned Lord had laid down in regard to applying to the lords-lieutenant for information in reference to persons recommended to him, he must say, that if those persons were rejected, the odium of that rejection rested with the lords-lieutenant, and he thought it was too hard, that the lords-lieutenant should be called upon to state why they considered certain persons unqualified for the office of the magistracy. The power of the noble and learned Lord to appoint the magistracy was not questioned, but the noble and learned Lord thought proper to go among persons whom he conceived to be Improper in order to obtain information, and then applied to the lord-lieutenant to know why certain persons had not been recommended. That was a course which he considered highly objectionable; and nothing, in his opinion, could be more calculated to injure the character of the magistracy than such a proceeding. The noble and learned Lord had said, that there had been no objection to any of the names placed upon the borough list which had been alluded to; but since the previous night's debate on this subject, he (the Duke of Wellington) 273 had received some information in regard to that list, which he would put into the hand of the noble and learned Lord; and he begged the noble and learned Lord to look into that communication, and then judge whether he was not likely to have been deceived by the mode which he had adopted to obtain his information. He would place that communication in the hands of the noble and learned Lord, with the hope that it would open his eyes to the bad effects likely to arise from seeking to obtain information from the description of persons to whom he had alluded, and who, he contended, were unqualified to give a sound and impartial opinion on the subject. He would insist that the law intended, and Parliament had expressed its decided opinion on the subject, that those officers ought not to be political, and that the magistrates ought not to be selected from party or political motives. Parliament had clearly declared its opinion on this point by a clause in the English Corporation Bill. An attempt was made to give, by that bill, a power to the corporations to recommend the magistrates to be appointed for those corporations; but, by a clause which was moved in that House, and agreed to in the other House of Parliament, it was decided that the corporations should have no such power. He was aware, that a noble Lord in the other House had contended for extending such a power to the corporations; but Parliament decided otherwise, and held, that the magistrates should not be selected from political motives, and that they ought to be kept, as far as possible, clear from party. Such was the law, and such was the declaration of Parliament; and he contended, that the principle upon which Parliament had acted, was the only principle by which they could secure the pure administration of justice. He was always unwilling to enter upon such discussions as the present, as he was aware, that they were generally painful, while they led to no results. The noble and learned Lord had said, that he would persevere in the same course which he had hitherto pursued. Be it so; and all that he would say was, that as custos rotulorum, he could not prevent himself from feeling a strong want of confidence in such a mode of performing the duties of the noble Lord's high office, as the noble and learned Lord had described. His object was, to have men of respectability appointed to 274 the magistracy, and their Lordships might assure themselves, that the public would ultimately feel, that those who wished to keep the magistrates clear of party and uninfluenced by political motives, and to select the justices of the peace from the persons of the greatest influence in the country, were the best friends of their country.
Lord Broughamwished to say a few words in reference to the gentleman who had been charged with barratry. That gentleman had done nothing to subject him to such a charge. He had been guilty of some violence, because he had felt his honour to have been touched; and the noble Duke had admitted, that that violence was the only thing which prevented him from recommending him to be appointed to the magistracy. The noble Duke had stated, that he had no other objection to the gentleman alluded to, and had admitted, that in every other respect his character was irreproachable. He wished that that statement should be made known distinctly, as the gentleman alluded to was a most estimable and highly respectable individual. There was no barratry, for barratry meant a stirring up of suits; and he did not know how such a term could be applied to the conduct of the gentleman who had been alluded to. With respect to what the noble Duke had said in the conclusion of his speech, he (Lord Brougham) was sure that the people did feel the necessity of keeping the administration of justice pure, and those who exerted themselves to keep the magistrates clear from party and political feelings, were entitled to the thanks of the country. He by no means thought, however, that the best mode to effect that desirable object, was by adopting a system of exclusion. If, on the other hand, they proceeded upon the principle of creating six Whig justices, because six Tory justices already existed, or six Tory justices because six Whigs had been previously created magistrates, then they would have the bench divided, not on the merits of any case which might come before them, but on political grounds; and such a course, therefore, was extremely liable to objection. He was quite sure, that the best results would flow from the Lord Chancellor keeping his ears open, if he did not place himself in improper hands; and to whom, he would ask, could the Lord Chancellor apply with more con- 275 fidence for information than to the lords-lieutenant? He agreed with those who said, that the lords-lieutenant would be placed in a different position, if the Lord Chancellor applied to them for information in respect to individuals recommended for appointments in the magistracy, provided those persons were rejected, and the grounds of that rejection stated. He would mention the course which, in such cases, he himself had invariably followed. He had received, while he filled the office of Lord Chancellor, recommendations from county and borough Members, and from other persons; and he had made it a rule to apply for information to the lords-lieutenant in regard to all those recommendations, and if the lords-lieutenant satisfied him that the persons who had been so recommended ought not to be appointed, he had felt that it was his bounden duty to take the responsibility of the rejection on himself. He held, that he should have been guilty of a very great breach of confidence, had he stated, that the rejection was the consequence of the representations of the lords-lieutenant. The appointments were not in the hands of the lords-lieutenant, but in the hands of the Chancellor, and how the lords-lieutenant came to exercise such a power as they did at present, was difficult to say. He did not see how the system could be much mended, unless a greater number of stipendiary magistrates was appointed; and in all cases he thought that the chairman ought to be a paid officer. That, however, was a subject foreign to the present debate, and on which he should not, therefore, enter at that time.
§ The Earl of Warwickcomplained of the applications which had been made to the Lord Chancellor for the appointment of magistrates in the county of which he was lord-lieutenant; and with respect to the municipal boroughs, the general opinion in the county was, that the appointment of magistrates in those places were controlled by the influence of a gentleman who was well acquainted with Warwickshire—he meant Mr. Joseph Parkes. All that had been said regarding the magistrates might with equal propriety be applied to the appointment of sheriffs; and the whole patronage in the county seemed to be dispensed, with an entire regard to party feeling.
§ Lord Wharncliffesaid, he understood that the Lord Chancellor objected to give 276 an answer to the question he put respecting the memorial of which he desired a copy.
§ The Lord Chancellorwas not aware of the existence of any memorial of the kind.
§ Lord Wharncliffesaid, that under these circumstances he must, of course, withdraw his motion. He would, however, fairly state his opinion, that he believed the proceeding to which he had called their Lordships' attention, to be a political move. The Lord Chancellor had received private applications from persons who, he believed, had made those applications from political motives; and all that had fallen from the noble and learned Lord, had only served to confirm his opinion on this point. The noble and learned Lord had said, that he (Lord Wharncliffe) had interest in the county, and of course liked the old bench better than the new; and it was to be presumed, he supposed, that his preference for the old bench was founded on party feelings. Was it, then, intended by new appointments to destroy his political interest? He repeated, that the noble and learned Lord, by attending to private applications with regard to the appointment of magistrates, had been made the instrument of a political party.
§ Motion, by leave, withdrawn.