LORD BROUGHAMthen rose to put a question to his noble Friend the President of the Council, on what he called the interminable subject of Hyde Park, and spoke nearly as follows:—I understand, my Lords, that huge operations are already commenced, and no doubt will continue to be carried on, for the destruction of Hyde Park, and of the road leading from Hyde Park-corner to Kensington. I understand that it is projected to pave that great road, which is now very easily and comfortably travelled on by all the many inhabitants who now live on the left hand side of it, Judges, and others. I understand that it is now begun to be paved with those great paving-stones which are now very much discontinued even in the most bustling parts of the town. I am told that this country road, this suburban road, is to be paved with huge blocks of granite, to make a road fit for great traffic, and to facilitate the works intended to be erected in the Park itself. I ask my noble Friend whether that is true or not? Now, I also hear that a similar paving operation, a similar process of granite, is about to take place in that part of the Park which is known as Rotten-row—a part of the Park with which I am not much acquainted; but which, I understand, is a road on which equestrians are wont to disport themselves. Whether that be true or not, I cannot tell; but if it be true, then the road will be rendered more safe for waggons to travel on, but not so safe for my noble Friend opposite to ride upon, as I am told that he is in the habit of doing. So my noble Friend will see that he, too, is interested in this question. But, my Lords, this is a minor matter when compared with the new law 679 which we now lire under—the law whereby the Attorney General is the sole judge in all cases between his client, the Crown, and all other parties, I mean the public, and individuals having their rights damnified, or threatened to be damnified, by the power of the Crown. The Attorney General now stifles all proceedings and suits by the subject against the Crown—the Attorney General now shuts the doors of all the courts, which ought to be as open to the subject as to the Crown, and decides judicially, ay, and more than judicially, for no Judge could prevent a suitor coming to his court, and having his case argued openly, in his own private closet against one party and in favour of the other. And the judicial character which Mr. Attorney General assumes is this. But I will first read what Sir Robert Wilmot, once Chief Justice of the Court of Common Pleas, has said upon this very subject. What says he of the Attorney General?—
The Attorney General is instructed by the King, and not by the constitution. It is the King who is instructed by the constitution. The great ability of the persons appointed to the office of Attorney General has made it higher in imagination, and has given it more importance in the eyes of the public, than it really deserves to have; for the Attorney General is but an attorney, though it be of the King, and stands in no different relation to his client than any other attorney to his employer.But the Attorney General of the Queen now assumes to himself judicial functions, and says, "I act judicially." And how? By not hearing the parties; by shutting the doors of the court in the face of the public; by giving judgment in his own closet in behalf of his own employer, whose servant he is, against the other party. This is what is now said to be a judicial officer, acting judicially. All depends on the way in which the power of the Attorney General is exercised. I do not, my Lords, deny his power, but I question the way in which it has been exercised. I have brought this matter before your Lordships in order that you may know and understand the law under which you are living; and I say that there is no great or petty prince in Germany, Turkey, or even Russia, who exercises a power more absolute in dealing with the property of his subjects than the constitutional Sovereign of this country, provided that this power claimed and exercised by the Attorney General can be legally enforced as he enforces it in the teeth, not of a doubt—for that might be enough to justify him—but 680 in the teeth of the opinion of three most eminent lawyers, who have answered more cases by thousands and thousands than have ever been answered by the present Attorney General, or by him and the Solicitor General to boot. I state this as a positive matter of fact. In the whole course of my professional career I never stated any case before your Lordships, I never brought any question before this House, I never made any address on any subject either to you, my Lords, or to the other House of Parliament, which was ever attended by more applause than my speech on a late occasion, and never were heartfelt thanks more gratefully and cordially rendered to me by persons in private—some of them Members of this House, and other Members of the other House of Parliament—than those which have been rendered to me for my exertions on that occasion. Dead silence there was within your Lordships' walls—dead silence there was within the walls of the House of Commons, showing most painfully that absolute prostration of the understanding which takes place even in the minds of the bravest men when the word "prince" is mentioned in this country.
The LORD CHANCELLORMy Lords, I hope that my hon. and learned Friend will not consider that he is always right when he gains applause. There are very few subjects which fall into the hands of my hon. and learned Friend, on which he is not likely, when he speaks, to obtain applause. He says that the House was struck with silence the other night when he spoke on this subject. I listened to my hon. and learned Friend's speech on that occasion with all the attention and respect which I trust that I shall always give to every word that falls from his lips. I did not, however, remain silent because I thought that he was right, but because I thought that the discussion was altogether irrelevant, and because it was just possible that the whole question might come before me in my judicial capacity as Lord Chancellor. My noble and learned Friend has thought fit, in the exercise of his discretion, to censure the Attorney General very severely. He thinks, of course, that he is right in making such an attack upon the absent; but I shall endeavour to satisfy him and your Lordships that he is perfectly erroneous in his opinion, and that the Attorney General has acted all throughout these matters in a perfectly legal and con- 681 stitutional manner. I don't intend, my Lords, to say now whether the exercise of his discretion has been sound or not. I forbear for several reasons from answering my noble and learned Friend on that point. I was informed that it was the intention of several parties to bring a Motion into the Court of Chancery to put a stop to the proceedings in Hyde Park by means of an injunction. As I consider it possible that it might thus come before me as Lord Chancellor, I did not think it right to take any share in the discussion on that occasion. I have already stated, my Lords, the reasons why I was silent; but when my noble and learned Friend says that the other House was equally silent, I think that he cannot have consulted the ordinary vehicles of information, by which we obtain intelligence of what is passing in that assembly; for the Attorney General there made a most satisfactory answer to the objections urged against his conduct—an answer which, if my noble and learned Friend will give us a legitimate opportunity for debate, I will undertake to prove was in every respect a legal and substantial answer. Such topics, as my noble and learned Friend well knows how to introduce, are likely to make an impression on those who are not aware of the nature and duties of the office of Attorney General. But I must be permitted to tell him, that when he cited this evening the opinion of Sir Robert Wilmot, the Chief Justice of the Court of Common Pleas, as an opinion condemnatory of the proceedings of the present Attorney General, he quoted an opinion that has nothing to do with, and cannot make any impression on, the present case. The question in that case was, whether the Solicitor General as well as the Attorney General could file an information; and the judgment upon it cannot be legitimately twisted into any analogy with the subject now before us. It is said that the Attorney General represents the public. Undoubtedly, and therefore it is his duty, when his name is to be used in the manner in which it is proposed to use it on this occasion, to see whether it is for the promotion of the interests of the public that it should be so used. If John-a-Nokes chooses to go to the Attorney General, and to say, "I am the public," it is the duty of the Attorney General to see whether he has any right to be considered as the public, and the Attorney General must not take it on his unsupported assertion. If the Attorney General sees that there is 682 not a case to justify the proceedings of John-a-Nokes, he has a right to refuse his assent to them; and he would be guilty of moral cowardice if, from any fear of obloquy, he should give his assent where he conscientiously thought that it ought to be withheld. The Attorney General, in refusing to allow these parties to file an information in his name, did not prevent them from proceeding as they might by indictment. This is a totally different thing. Who is it that complains? Are they private parties having any private interest affected by these proceedings? Let them bring it into court, as they are entitled and have power to do, and there let them try their right. Have they any public interest? Let them proceed, as they could do, by indictment against the wrongdoer. You bring before the Attorney General an opinion which says that there are certain Acts of Parliament which do not give the Crown the right of erecting buildings in Hyde Park. The Attorney General replies, "That is not the question; the question is, 'Have any rights been taken away from you?' If the Crown, which is the owner of the soil, gives its consent to the erection of those buildings, what right have you to object? Do not alarm the public by stating that your rights are in jeopardy, and that you are likely to be injured, when you cannot show that you have any rights, as individuals, or that any injury has been or will be inflicted upon you." The Attorney General says no more than this, "I will not be the means of assisting you—take such remedies as are open to you—I will not interfere for you, or against you." My Lords, the Attorney General has exercised a sound discretion, and these attacks upon that functionary are without foundation, and are inconsistent both with law and with justice. The Attorney General has exercised his powers for the benefit of the public—he is responsible to Parliament for his exercise of those powers; and if he has exercised them improperly let his noble and learned Friend bring that charge regularly and substantially before the House. I do not question my noble and learned Friend's right to discuss the question whether the Attorney General has exercised or not a sound discretion; but I do complain of the system of attacking an honourable man, and a high legal functionary, in a place where he cannot answer for himself. Where he could answer his detractors, he has answered them in a straightforward and satisfactory 683 manner; and I now tell my noble and learned Friend that, whenever he will condescend to bring forward his charges against the Attorney General in a regular manner, I will not fail to prove to the satisfaction of every impartial man that the Attorney General has exercised a sound, impartial, and legitimate discretion.
LORD BROUGHAMcould not refrain from rising to put his noble and learned Friend on the woolsack right on one or two matters of fact. In the first place, his noble and learned Friend had not been so long in the House as to be aware of its ordinary forms, or he would not have used the term "honourable" Friend in an assembly where every man was noble. In the next place, had he been longer a Member of that House he would have known that nothing was less irregular than to moot a case like the present on presenting a petition. He might bring forward without notice in that House any question, without being liable to the charge of irregularity. The courtesy of the House led to the practice of giving notice; but irregularity there was none in bringing forward any matter without it. If his noble and learned Friend had no better foundation for his knowledge of law than he had for his knowledge of the rules and orders of Parliament, when he stigmatised as irregular a proceeding which was strictly regular, he was certain to fail in the case which he had just pledged his reputation to establish. He had not, on the occasion to which his noble and learned Friend alluded, travelled even one hair's-breadth out of the four corners of the petition, and everything which he had then said had relevancy to that petition. As to his noble and learned Friend's saying that he (the Lord Chancellor) would take issue with him (Lord Brougham) on the point of law, he begged leave to remind the House that he had never said that the Attorney General had not the legal right to act as he had done. He had distinctly admitted that the Attorney General had that right; but the whole question rested upon the discretion with which he exercised it. He repeated his assertion, that this country was not a free country if the Attorney General had a right to refuse to the subjects of the Crown all access to the courts of law and equity by refusing to join them in a triable, probable, and maintainable cause. Oh! but he was the attorney for the public, was he? Why, the public repudiated his office, and would rather have these matters decided judicially by the courts 684 than by their own attorney in his private closet. The ground of his complaint against the Attorney General was, that by his refusal the matter in dispute could not come before the Court of Chancery.
The LORD CHANCELLORgave a decided negative to that assertion. If any individual had to complain of a private wrong, there was nothing to prevent him from bringing it before the Court of Chancery.
§ The MARQUESS of LANSDOWNEbegged to remind his noble and learned Friend, who stood up so stoutly for the regularity of his and their proceedings, that he had himself departed from the Orders of the House in making an attack upon the conduct and proceedings of the Attorney General, when he merely rose to ask a question about the paving of Hyde Park. He assured his noble and learned Friend, that he had made inquiries into the subject-matter of this question, and that he could now inform him that the invasion of the sacred territory of Rotten-row, on which he admitted that he and others were wont to ride, was confined to the pavement of the entrance at the gate, and thence to the building erected in the Park. Not the road nor any part of the grass was to be paved.
LORD BROUGHAMwas understood to admit that, strictly speaking, he had been out of order in the observations which he had made that evening on this subject; but, if he had erred, he had erred in common with great authorities. Communis error facit jus. With respect to the Park, it was a great consolation for him to have heard from the noble Marquess that they were not to have a paved road to Kensington. Some, but a small part of the Park, it appeared, would be paved. Nothing could be more fair than the language and conduct of his noble Friend.