WELCH JUDGES. (Hansard, 18 March 1817)

§ Sir S. Romilly
took that opportunity of calling the attention of the House to the distinction made between the English and Welch judges with regard to the capacity of sitting in that House. The constituents of the learned serjeant himself had nothing to complain of, as it remained for them to determine whether their representative was likely to be as attentive to their interests as before his acceptance of this office; but the point was of great constitutional importance: and he had never been able to understand at what period this difference between English and Welch judges originated. The latter had duties equally arduous, although not so frequently exercised, as those of the former: they had to sit in judgment in cases affecting the property, reputation, and lives of his majesty's subjects. The due exercise of their functions required the same general qualifications, the same impartiality of character, and the same abstinence from party conflicts. He was, he confessed, at a loss to determine how such an irregularity could have ever been allowed by the constitution. The fact, however, unfortunately was, that they were considered not professional, but political offices; and were, he had reason to believe, not in the gift of the lord chancellor but of the first lord of the treasury. These observations were evidently not directed against the recent appointment of the learned Serjeant, whose great practice and long experience fully qualified him for the situation. Whatever regret, however, the House might feel at the absence of his talents, he did not think it could be attended with much surprise. It count not have failed to have attracted notice, that the hon. and learned serjeant had some time since changed his original seat on the opposition benches, for one which might be regarded as neutral territory; and that he had subsequently removed to one which was not only nearer to, but was the very threshold of the treasury. The House, he thought, was bound to take into its consideration the propriety of suffering any man to unite in himself the characters of a member of parliament and of a judge. In point of practical consequence, it was undeniable, that those hon. members generally placed implicit confidence in the ministers of the Crown. He had heard of many visionary projects for parliamentary reform, 1168 and he was sorry that such ideas had been entertained; but of practical and moderate reform, he had always been a supporter both in the House and before he had the honour to enter it; nor could he imagine any plan of reform more practical and moderate, or one calculated to give more general satisfaction, than the rendering ineligible those persons whose offices necessarily made them dependent on the ministers of the crown, and more especially all those who held judicial appointments.

Mr. Abercrombie
was desirous of asking for information with respect to certain legal proceedings in the county palatine of Chester. He recollected to have heard his hon. and learned friend who had just spoken, when a new writ was moved for on the occasion of the present attorney-general being appointed to the office of chief justice of Chester, pointing out the possibility of his being called upon to sit judicially upon cases which it had been his duty to prosecute as attorney-general. If what he had heard was to be relied on, this conflict of duties had now arrived. He understood that several persons had been arrested within the jurisdiction of his court, and were about to be tried for offences against the state, which must have come under his cognizance as attorney-general. It was, he conceived, impossible that the hon. and learned gentleman should preside at those trials; and the result of this must be the loss to the state of his services, or the inconvenience of appointing a special commission. In the one case he supposed the duty must fall on the attorney-general of the duchy of Cornwall (Mr. serjeant Best); but he remembered an instance in which a former attorney-general of Cornwall (Mr. Adam) had deemed it becoming to resign that office on his appointment to a judgeship. However liable he might be to misconstruction in these remarks, he felt that it was impossible to be too anxious on so important a principle of the constitution; and he could assure the House, that he was at the same time expressing sentiments which were generally entertained by the profession to which he belonged.

The Attorney General
said, that the hon. and learned gentleman was completely mistaken in supposing that any thing so indecent could be committed as that he, the king's attorney-general should direct prosecutions which he should afterwards try in his capacity as chief justice of Chester. If there were persons in custody in Ches- 1169 ter, he was quite certain he should not hear a syllable upon the subject (except what might be matter of public notoriety), till he arrived there. In the last sessions at Chester, several persons were tried for a conspiracy, but of which conspiracy he knew nothing, until the matter was opened before him by the indictment; and the same course would be pursued on the present occasion, if the fact should be as stated by the hon. and learned gentleman. He should consider himself, or any other individual, unworthy to hold a situation under the Crown, if he could advise prosecutions, which were subsequently to be tried by himself. Were such a necessity inevitable, he should hold himself bound to resign one or other of the offices.

Mr. Ponsonhy
said, that the speech of the hon. and learned gentleman had proved beyond the possibility of doubt, that the two offices of attorney-general and of chief justice of Chester were incompatible. He could not, in fact, do his duty in the one capacity, but by neglecting it in the other; he could not execute his functions as chief justice of Chester without foregoing his duty as attorney-general. The principle was extremely wrong, and contrary to the direct nature and spirit of the constitution, that any person exercising judicial functions should have a seat in the House of Commons. He was surprised how the practice could have existed so long and if no other individual took the matter up, he would after the Easter holidays, propose a motion for disqualifying such persons.

§ Sir S. Romilly
observed, that since the hon. and learned gentleman had been chief justice of Chester, some causes had been tried in which the Crown had a great interest relating to Delamere forest; the hon. and learned gentleman very properly abstained from sitting, and they were tried by one of the puisne judges, but the consequence was, that the Crown did not have the assistance which it ought to have had from the hon. and learned gentleman's talents.