Mr. Martin, of Galway
, rose to bring forward the motion of which he had given notice, with respect to the conduct of baron M'Clelland in the trial of Edward 1493 Burke, an Irish attorney. That the character of a judge should be treated with all due deference, he was ready to admit, but when any judge was fairly chargeable with misconduct, it was the peculiar duty of that House to investigate such charge. He would read the resolution which he meant to submit, and which was as follows:—"That the proper officer do lay before this House a copy of the bill of indictment found against Edward Burke for wilful and corrupt perjury, at the session of oyer and terminer held for the city of Dublin in December 1814, together with the verdict of the jury on the trial of the said indictment, and copies of the affidavits that were made for the postponement of the trial."—He should briefly state the case which, in his judgment, called for the interposition of the House. At a commission of oyer and terminer in Dublin, in 1814, a bill of indictment was found against Edward Burke for perjury, but to prevent the cause from being brought to trial at that commission, Burke made an affidavit, deposing that he called at the house of Mr. Browne, whom he described as a material witness in his defence, and that he understood Mr. B. was so unwell as to be unable to attend the court. In consequence of this affidavit, he (Mr. M.) made an affidavit, that Mr. Browne, who was stated by Burke to be material to the elucidation of his case, because a party to a certain reference was by no means an active member of that reference, while the two gentlemen, who were really the referees upon that occasion, were ready to be examined—Yet it was the pleasure of the judge M'Clelland to order the postponement of the trial upon Burke's affidavit, which merely stated, that having called at the House of Mr. Browne, he heard and believed that gentleman was so unwell as to be unable to attend in court. Of this postponement, however, it was not now his object to complain, although at the time he was fully ready to prosecute the trial, But the trial was put oft' until the February commission following. On that occasion, however, he was himself under the necessity of applying for the postponement of the trial, in consequence of the absence of Mr. Simcocks and Mr. Killery of Galway, who although served with the usual process on his part, declined to attend. Mr. Coneys, also an eminent lawyer, whose evidence was peculiarly material to his case, could not attend the 1494 court but at the imminent hazard of his life. Of these facts he made an affidavit, but still he did not call for any more postponement of the trial than from day to day, in order to see whether Mr. Coneys would sufficiently recover to be able to attend the court, proposing, however, that if that recovery should not take place before the conclusion of the commission, the trial should be postponed until the commission following. That affidavit, he thought it would be admitted, ought to have put off the trial. But the proof did not rest there. Dr. Crampton, at the head of the Medical Institute in the university of Dublin, was in court, and made a similar declaration; not certainly upon oath at that moment, but he subsequently in court made an affidavit to that effect. The brother of Dr. Crampton also swore, that Mr. Coneys could not leave his bed without imminent hazard to his life. He would put it to the law officers of the Crown to say whether, if they were elevated to the bench, they would act as baron M'Clelland had ventured to act. He held in his hand the brief of the affidavits. He would tender them to the consideration of the House, and ask it to decide, whether such conduct on the part of a judge, should pass without inquiry, unless, indeed, it was meant to be inferred, that every act of an Irish judge should be absolved from censure.—What would be the result of such a course of conduct? Was there any case wherein the Crown could put off a trial? If there were any such case he felt confident there was not in his application for a postponement no one ingredient wanting which would justify a similar course. Had he not a right, then, to complain of the arbitrary manner in which baron M'Clelland forced on a trial against an individual whom he, as the prosecutor, might be allowed to think was guilty?
§ Sir G. Hill
said, that this was a case of the very first importance; it affected the fame and character of a judge of the land; and there was no class or description of public functionaries, in whose uprightness of conduct the interests of the Crown, and the safety and liberties of the people, were so deeply concerned, as in that of those who filled the judicial bench. This principle, in good and former times, had been powerfully felt, and amply provided for. By the 12th and 13th Will 3rd., the judges are rendered independent of the 1495 Crown, to hold their situations during the life of the sovereign, and are removable only upon the Address of both Houses of parliament; and, by the first of Geo. 3rd., their independency is still farther secured, as their commissions are made to continue in force not with standing even the demise of the Crown. And, by the 21st and 22nd Geo. 3rd., the provisions of both these statutes were embodied, and made law in Ireland by the parliament of that country. Thus, the legal bench was placed beyond all undue influence or control. As already stated, a judge is removable only upon an address from both Houses; but such an address, he was bold to state, would only be justifiable upon a serious case, clearly made out against the judge, either of palpable incompetency on his part, of violent infringement of the liberty of the subject, or of gross partiality or Corruption. On the other hand, he insisted, that mere error of judgment, mere misapprehension of the law, to which the fallibility of man is liable, form no just grounds for such address; to such error, however, the learned judge had not, in this case, been liable, and against whom the hon. member had not ventured to insinuate the slightest suspicion of partiality or corruption. It would, therefore, be a most monstrous innovation, if the House were to countenance an application like the present for its interference, upon such trifling, stale, and insufficient grounds as the hon. member for Galway had brought forward. To what does the charge amount? That at the commission of oyer and terminer in Dublin, in February 1815, baron M'Clelland, being one of the Judges in the commission, refused to postpone a trial for perjury against a Mr. Burke, in which the hon. member was the prosecutor. If the House entertained such an appeal, there was not a common case of Nisi Prius in a civil court, nor the most trifling case of assault in a criminal court, that might not henceforth be brought before them for revision. He had the honour of knowing baron M'Clelland intimately, and a more intelligent, laborious, of upright judge did not adorn the bench of either country; justly confident in his knowledge and experience, and from his decisions, baron M'Clelland was incapable of partiality, or corruption. Learning that he was to be thus accused before the House of Commons, he had transmitted to a few friends, and to the right hon. baronet, as one of them, a 1496 statement of facts, bearing on this and another case—the first of which related to a trial at Galway, in 1813, when the hon. member was prosecuted before baron M'Clelland for challenging a gentleman of that county, and was convicted; and to which case the hon. member had not thought proper to allude. The other, which is the one at present complained of, occurred above four years since. Now, trivial, and out of time, and unjustified as this complaint appeared to be; yet, inasmuch as it had been made the medium of unworthy attack against this roost excellent judge, it was fit that he should be defended. He was sure the House would be gratified to hear an authentic statement of the facts which bore upon the trial detailed by the hon. member; they were furnished to him by baron M'Clelland himself. But, previous to making this statement, the House must be surprised to learn, that the hon. member had abstained from stating, that if injustice was done to him at the trial in question, another judge had concurred with baron M'Clelland in tiding him that injury. The late Mr. Justice Osborne, revered, esteemed, and lamented by all good men who knew him, was associated in the commission of oyer and terminer in Dublin with baron M'Clelland, when the trial of Burke for perjury in February 1815, at the prosecution of the hon. member, was brought forward; and Mr. Justice Osborne fully concurred with baron M'Clelland in refusing the application of the hon. member to postpone the trial of Burke to a future commission; and the House would-form its own opinion for what reason this fact had been suppressed by the hon. member. The particulars were as follow:—Mr. Martin, in 1814, commenced a prosecution against a Mr. Burke, an attorney, for perjury, alleged to have been committed by Burke in an answer to a bill filed against him by Mr. Martin. The bill of indictment was found by the grand jury of Dublin, in Dec 1814, on the testimony of Mr. Martin and a Mr. Leonard. At that sitting of the commission court, in Dec. 1814, the trial was postponed until the next sitting of the court in Feb. 1815, on the motion of Mr. Burke, grounded on two affidavits, stating the illness of Mr. Browne, a material witness, under a paralytic attack, and his inability to attend; and one of these affidavits was made by the medical gentleman who attended Mr. Browne, the witness. The 1497 next adjournment of the commission court was held in Feb. 1815, before Mr. Justice Osborne and Mr. Baron M'Clelland. It began on the 18th Feb, and ended on the 24th. The trial of Burke, as one postponed from the preceding commission, would naturally have had precedence; but in having been intimated to the court, that Mr. Martin was not ready for the prosecution, the trial was postponed from day to day, and was the last trial that took place at that commission; yet Mr. Martin hag ventured to state to the House, that he applied to have this case put last in the list of trials; that such request was refused, and that the trial was immediately called on. On the 23rd Feb., Mr. Martin, and a Mr. Coneys made each an affidavit to postpone the trial. Mr. Martin, in his affidavit, stated the absence of three material witnesses, and that two of them, a Mr. Killery, and a Mr. Simcocks, had been served with crown summonses, "as Martin believed," and referred to the affidavits of the service thereof; but no such affidavits were produced, nor are any such to be found in the Crown office. Judge Osborne, and baron M'Clelland then decided, that as there was no affidavit, stating positively the service of a crown summons on these two witnesses, or either of them, their absence was not a sufficient ground to postpone the trial, the prosecutor not having used due diligence to compel their attendance. As to the third witness, Mr. Coneys, the barrister, the affidavits, both of Mr. Martin and Mr. Coneys, brother of the witness, stated, that the witness lived in Dorset-street, adjoining the Court-house; that he was confined by a feverish complaint, and was attended by Dr. Crampton, and that they believed the witness could not attend on account of this illness: and Martin swore that he believed the witness could not attend during that commission. On these two affidavits, viz., that of Mr. Martin and that of Mr. Coneys, the counsel for Mr. Martin, on the 24th Feb., at the close of the commission, and when all the other business was finished, moved the Court to postpone the trial until the next commission, in the month of June following, according to the fact sworn by Martin, that the witness could not attend until the next commission—and not for two or three days, as Mr. Martin has ventured to state to the House. This motion was opposed by Mr. Burke's counsel, on the defects in the affidavit; namely, the want of any positive allega- 1498 tions of the service of the crown summonses on the witnesses, and that no affidavit was made by the physician who at-tended Mr. Coneys, who was alone competent to swear to the inability of the witness to attend without hazard to his life. The counsel of Mr. Burke also urged, that the affidavits were made on the 23rd, and that no account was given of the state of the health of Mr. Coneys on the 24th, although he lived close to the Court house. The counsel also urged the hardship it would he inflicting on Mr. Burke to postpone the trial on such defective affidavits, and to keep so serious a charge hanging over the head of a professional man for four months; and the counsel for Mr. Burke then stated, that Mr. Coneys, then alleged to be ill, had been examined by Mr. Martin, as a wit ness in the equity cause, to support his case against Mr. Burke's answer, in which the perjury was said to have been committed; and counsel then offered, on the part of Burke, to consent that the said depositions of Mr. Coaeys should be read as evidence against him (Burke) on the trial, as if sworn in open court by Coneys. This offer was rejected by Mr. Martin. Judge Osborne and baron M'Clelland, on taking these arguments of counsel, and the affidavits into consideration, were of opinion, that, by the settled rules of practice, they were bound to refuse the motion. Mr. Martin has ventured to state that the affidavit of the physician who attended Mr. Coneys was produced, and that it stated his inability to attend; such statement of Mr. Martin is utterly unfounded; no such affidavit was ever produced to the Court, nor is any such affidavit in the Crown office. The Court having, refused the motion, Mr. Burke was given in charge to the Jury. Mr. Martin then rose and stated, that he was deserted by his counsel (the counsel had retired some minutes before, obviously being sent away by Mr. Martin), and proceeded to state the case for the prosecution, which he did at length, reflecting, with great severity, on the conduct and character of Mr. Burke, and detailing a variety of dealings between him and Burke on the points on which the perjury was assigned, and which he (Mr. Martin) stated to be within his own knowledge. As soon as Mr. Martin concluded his statements, he left the court, as did also Mr. Leonard, his witness, on whose testimony, and that of Mr. Martin, the bill of indictment was 1499 found. After waiting for some time, and having Mr. Martin, the prosecutor repeatedly called, and he not appearing, or any witness for the prosecution, the Court directed the jury to acquit the prisoner, which was accordingly done. The counsel for the prisoner then complained of the great hardship imposed on their client, by the Court having permitted Mr. Martin to make such a violent statement against Mr. Burke, and then to go away, as he had done; whereby the prisoner was precluded from all vindication of his character from the aspersions of Mr. Martin. The Court stated their regret at what had happened; but that they could never have foreseen such an occurrence as a gentleman making such a statement as within his own knowledge, and then shrinking from confirming that statement on his oath, and submitting to a cross-examination. The right hon. baronet then referred to an official certificate of Benjamin Riky, deputy-clerk of the crown in Dublin, from which it appeared, that the only affidavits produced at the trial alluded to, in February, 1815, were those of Martin and Coneys, to postpone the trial of Burke, and none from Dr. Crampton nor any other person. The right hon. baronet said. it was his duty now to expose to the House a most extraordinary proceeding of the member for Galway towards baron M'Clelland an account of which he had also received from the baron himself. On the 13th November, 1818, while baron M'Clelland was standing in the anti-chamber of the chief secretary, in the Castle of Dublin, Mr. Martin came in, and addressed baron M'Clelland, saying—"Sir, the last time I met you, was at Galway, where you tried me for challenging Mr. Bowes Daly." Baron M'Clelland replied, "It was a long time ago, and that the subject was an unpleasant one"—he wishing to stop the conversation. Mr. Martin then said, "Sir, you dealt me a hard measure of justice in that case, in refusing to hear me." Baron M'Clelland observed, that Mr. Martin having appeared and defended himself by his counsel, he (baron M'Clelland) had acted on that occasion according to the settled practice of the courts, and a decision of lord Ellenborough on the point. Mr. Martin then said, he had been called to the bar, and therefore was entitled to be heard. Baron M'Clelland replied, he never heard of that fact before. Mr. Martin then said, "Sir, I now give*1500 you notice, that I will complain to the House of Commons of this conduct of your's." Baron M'Clelland replied, he was at liberty to do so whenever he pleased. Mr. Martin then observed, "Sir, what you did at Galway against me was a trifle, to what you did on the trial of Burke, the attorney, for perjury." Baron M'Clelland replied, whatever decision was made on that trial, was made by Mr. Justice Osborne as well as by him. Mr. Martin then said, "Sir, that don't signify; I now tell you, that your conduct, as a judge, on both these trials, was outrageous and unwarrantable." Baron M'Clelland then cautioned Mr. Martin from using such language to a judge, as it would compel him to apply to the court of King's-bench for redress—on which Mr. Martin, approaching close to the baron, and extending his arm towards him, said, "Sir, I tell you again, that your conduct as a judge, on both these trials, was outrageous and unwarrantable;" on which baron M'Clelland observed, that all further conversation between them must cease, and he left the room. Baron M'Clelland would have immediately applied to the court of King's-bench for an information against Mr. Martin, had it not been for Mr. Martin's declaration, that he intended to complain to parliament of the judicial conduct of the baron. On this account, the baron decided to take no proceeding which could be construed into any wish on his part to avoid that investigation. Shielded as the character of a judge ought to be, and protected as it was by the laws of decorum and decency, as well as by those of the land, from personal insult, the House, without further comment from him, would estimate the propriety of such conduct towards baron M'Clelland. The House would also observe the prudence, the judgment, and the patriotic anxiety of the hon. member for the constitutional interests of his country, manifested by him in preferring this accusation to the House. Who was there to support the hon. member? Amongst his friends, had he no one who would undertake this case of attack for him—so very personally concerned as, from his own showing, he appeared to be, was he reduced to the necessity of being his own advocate? But now, against his detailed accusation, the House would weigh and contrast the statement and character of baron M'Clelland, to whose value and excellence the gentlemen of Ireland 1501 would bear ample and ready testimony; and although he might have feebly discharged his duty in advocating the learned baron's defence, yet he hoped and expected that this House would not be contented to pass over the motion now before them by voting the previous question, but concur with him in expressing their disapprobation of the proceeding of the hon. member for Galway, and pronounce their direct negative upon his proposition.
§ Mr. Brownlow
observed that, although he had the honour to be personally acquainted with the learned judge, now under the public notice of the House, he should not speak of him with regard to those private virtues which, independent of his situation, would render him so incapable of an act of injustice or bad feeling. He begged to assure the hon. member who had made this motion, that he supposed him to be acting on feelings of the greatest propriety—either imagining himself individually aggrieved by the award of judgment, and, therefore, seeking redress from the impartiality of this House; or, induced by the motive of serving the public, in bringing to light and conviction instances of abuse on the bench. In either case, that hon. member must be aware of the importance, that an unsullied and un impeached reputation should attach to the judges of this land; and, therefore, he was bound to believe that this was not an accusation lightly made, and that a high judicial character had not been wantonly dragged to solemn examination before that House. He felt himself bound to state, diffidently on his own judgment and experience, but authoritatively on the uncontradicted testimony of all whom he had consulted on this occasion, that never was there a man more fortified by his character than the learned judge against accusations of this kind, both by his abilities as a lawyer, and the active, unceasing, uncompromising discharge of his duty as a judge. But, what was shortly the circumstance that had been attributed to the learned judge, and not singly to him, but to the late judge Osborne, who presided with him, and whose name had been suppressed. At a commission where these two learned judges presided, the hon. member for Galway was himself the prosecutor of an attorney of the name of Burke, for corrupt perjury; and no evidence appearing to substantiate the charge, the prisoner was about to be given in charge to the jury, when the pro- 1502 secutor moved for a postponement of the trial till the following commission, on the natural grounds of the alleged illness of his principal witness; but this was supported by his affidavit alone, unaccompanied by that of a physician, who, in courts of justice, was alone acknowledged to be the proper judge of the sufficiency of the reason, when that was said to be illness; and why was the hon. member's affidavit to make an exception to this rule, to detain a professional man for several months longer, under the odious imputation of perjury? But the prisoner did not wish to avail himself of this contingency, and his counsel offered to admit the deposition of the sick witness. This was also refused. Therefore, in the absence of evidence to substantiate the charge, the want of a proper testimonial to the alleged illness, and a refusal to admit the deposition, the prisoner, as a matter of course, was tried and acquitted; and on these grounds was the learned judge outraged in his feelings as a gentleman, and was now before the House for arbitrary and precipitate conduct as a judge. The hon. member observed, that, could he fancy abuse existed, he should be anxious to bring it to light; but to him there was not the presumption of inadvertence; and if such should appear to the House, he trusted they would bear in mind, that the very impeachment of unsubstantiated guilt was a hardship, and that the learned judge could not but have been much harassed in his feelings by this impending motion; and that they would make some remuneration to his feelings, and to the injured memory of a judge now no more able to defend himself, by a full and honourable acquittal.
Mr. C. Grant
said, he would not enter into the statements made. He hoped the House would decide this question on higher grounds. No principle was better understood than this, that a judge, in his judicial capacity was not accountable for any involuntary error. He hoped there was no reason for departing from this principle. There was not here the slightest imputation of partiality or corruption-there was not then the slightest shadow for such a charge. He much regretted that the hon. gentleman should have brought forward this motion. The high character of the learned judge should have protected him from a charge for which there was no foundation whatever.
§ Mr. Leslie Foster
said, that parliament 1503 could not entertain the motion; it would turn the House into a court of appeal.
The Attorney General
said, that on principle the motion could not be sustained, and that it was altogether unsupported by facts. There was nothing in the Conduct of the learned judge that could expose him even to the suspicion of partiality or corruption.
rose to reply. He said, it bad been asserted, that he had not imputed corrupt motives to the learned gentleman; he would now say, that the conduct of baron M'Clelland was corrupt. He applied the term in the legal and proper sense of the word. He might not have been corrupt for money; but he acted on the seat of justice from motives of personal resentment. He therefore charged baron M'Clelland with corruption, and he would prove the charge, if the papers he moved For should be given. When these papers should be granted, he would then consider what course to take, whether he should move for the dismissal of baron M'Clelland for weakness and incapacity, or whether he should move that he be dismissed and censured for corruption. As for the transaction that took place in Galway, he would state it to the House. Here the hon. gentleman entered into a detail of the facts connected with a dispute he had with a Mr. Daly, which he described in so very theatrical a manner as to keep the House in a continued roar of laughter. He complained that at a prosecution which took place in consequence of this dispute before the learned judge, he was prevented, though a party, either to cross examine Mr. Daly, or to speak to evidence. As to the trial of Burke, his (Mr. Martin's) counsel publicly stated, mat if the arguments they had urged could have no weight with the judge, it would be no use to urge any thing further; and Mr. Grampton satirically said, that his lordship was about to non-suit the crown. Baron M'Clelland had an accommodating disposition. He would not reply to Mr. Crampton, because he knew that gentleman was connected with Mr. solicitor general Bus he. The baron had been always remarkable for his attentions to the great; he partook of the qualities of the hare and the tiger-he had all the timidity of the one, and all the ferocity of the other; he had been, through life, remark able for his submission to those above him, and to those below him, if any person could be below him, he was harsh, arro- 1504 gant and supercilious. His conduct had been the more criminal, because he could not be accused of mere ignorance. he had not indeed an enlarged, but he had a technical mind.
§ The motion was negatived without a division.