§ The House having, on the motion of Mr. Spring Rice, resolved itself into a Committee on the Conduct of the Lord Chief Baron of the Irish Exchequer,
§ Mr. Spring Ricesaid, that in presenting himself to the House, he felt how inadequate he was to the important task which he had considered it his duty to undertake, but having in the discharge of that duty undertaken it, he was aware he had no claim to any other indulgence than a patient attention to the statement which he should submit. There were, however, considerations connected with this subject, which made it of importance. The first was—and to that he should implore the most serious attention of honourable members—that this was a personal question involving the character of a high judicial officer in Ireland; and from those who might defend that character and above all from those who might feel-disposed to affirm the resolutions which he concluded with moving, their duty to the House and the country, and to the high officer, in question, required the most minute attention to the facts of the case There were besides these other grounds on which the question re- 994 commended itself to the attention of the House; for, if ever any subject more particularly than another demanded the; attention of parliament, it was that which concerned the administration of justice. It was found, that in cases of that nature in this country, the best attention of members was given; but in cases relating to the administration of justice in Ireland, the demands on their attention were augmented; for, assuming the case, that delinquency great or small, had found its way to the seat of justice in this country, that would not counteract the due reverence for the law, or the feeling of respect for those who administered it. But in Ireland, where unfortunately so many circumstances had concurred, for a long series of years, to create a contrary spirit, there was great danger in suffering any matter affecting the administration of justice to pass without the most strict investigation. If the House should find, that reports before them, there were any matters tending to diminish the respect for the laws, and for those who administered them, it was their duty to inquire into the case, and, if the facts admitted it, clear the party charged, and restore him unsullied to the discharge of his functions. If, on the other hand, it should be found that the reports were well founded, he trusted that nothing would prevent the House from doing justice to the country. It had been stated, that this question was now a mere speculative question; and that as the fees had been abolished, it was no longer worth contemplating, in a practical point of view. He wished to God that such were the case But, if he had not thought that this question bore upon the present and upon the future condition of Ireland, no consideration of the past would have induced him to have brought it forward; In performing the task which he had taken upon himself, he would abstain as much as he could from wounding the feelings of any individual; for he could assure the House that he was not actuated by any enmity or ill will towards the party whose conduct was implicated by his resolutions If he had been actuated by any such motives, he would have allowed the report to have remained uncontradicted on the table, and would not have given to chief baron O'Grady any opportunity of exonerating himself from the charges which they brought against him. Those Charges were confined within a narrow compass, 995 and embodied so many general principles, that though they related to the judicial conduct of a great public functionary, they were quite intelligible to any individual of ordinary talent, even though he did not belong to the profession of the law.
The hon. member then proceeded to contend, that it was the duty of parliament to watch over the conduct of the judges; and to take care that they did not exact any fees to which they were not fairly and lawfully entitled. Having stated the opinion of lord Bacon upon this point, he informed the House, that in a commission which was issued in the reign of Charles 2nd, to prevent the improper exaction of fees in courts of justice, it was well set forth, that the taking of improper fees was "a dishonour to take king's justice, as well as an increase of charge to the suitors in his courts? In the reign of George 1st, when it was necessary to provide a similar remedy for a similar abuse, the preamble of the fact of parliament which was passed for that purpose contained these words—"Whereas divers improper fees have been taken in several of his majesty's courts, to the great oppression of his majesty's subjects." Under the sanction of such authority he had not hesitated to condemn, in his resolutions, the practice of exacting improper fees in the very terms which were first used in the king's commission, and were afterwards employed in the act of the 4th of George 1st. He next reminded the House, that, in the year 1814, on a motion brought forward by his right hon. friend (sir J. Newport), it had been admitted on all hands, that the fees exacted in the courts of justice in Ireland demanded inquiry, and that in consequence a commission of inquiry had been instituted. That commission had presented several reports; and the question on which the House had now to decide was, whether it would allow those reports to remain as waste paper, or would deal with them as the ground-work of inquiry into the conduct of the chief baron of Ireland. It was now the third session since those reports had been laid upon the table; and he trusted that when that circumstance was taken into consideration, no individual would think that he was acting wrongly in callings upon the House to decide upon them without further delay.
The charged which was brought against 996 the chief baron in the reports in question was, that he had taken other than the ancient fees to which he was by law entitled he had introduced new fees, and had increased the old; and that, by such Conduct he had increased the charges of the suitor, and had violated his duty as a judge of the land. He knew not what kind of answer would be offered, to this charge. If it were asserted, that a judge, of his own authority, had a right to exact any fees that he thought proper, and if that assertion were to be considered as law, there was nothing further to be said on his part; and, as far as the chief baron was concerned, the matter was brought to a triumphant conclusion. But he contended, that, if such assertions were made by the other side, they were not maintainable; and was prepared to prove, that if a judge exacted improper fees, under colour of his office; he was indictable at common law, and was therefore liable to parliamentary censure, if his conduct was submitted to parliamentary discussion.
Before he proceeded to the charge's against the chief baron, he thought it might be advisable for him to call the attention of the House to this question—What are fees? In the 27th report of the finance committee, they were defined in the following manner:—"Fees in a court of justice are so many direct taxes levied on the king's subjects, for the specific purpose of defraying the charges of the offices to which they are incident." The older authorities, however, carried the point still further. Lord Coke stated, that under the statute of Edward the 1st, the Crown had no power of itself to increase the fees of an old office, or institute those of a new one; for that would be an impost and tallage without the consent of parliament. If these authorities were to be relied on, it was clear, that no judge possessed the right of creating fees by his own authority for his own private emolument; and he would next proceed to prove that if be did so exact fees, he was guilty of a great misdemeanor; Mr. Justice Blackstone said, "Extortion is an abuse of public justice, which consists in any officers unlawfully taking, by colour of his office, from, any man, any money or thing of value that is not due to him, or more than is due, or before it is due The punishment is fine and imprisonment and sometimes a forfeiture of the office" In this opi- 997 nion, Hawkins, a text writer of consider able authority, also concurred; and there-fore, if he should be able to prove that the chief baron had taken that which was not due to him, or more than was due to him, he should make out a case that would call upon the House to interfere, unless it were of opinion, that a judge had a right to set a value upon his own labour, by introducing fees that were not sanctioned by ancient usage, or supported by some express act of parliament.
He now came to the charges against the chief baron, which were comprised under four distinct heads. He should, in the first instance, open the whole of his case, and should afterwards, when he moved the specific resolutions on each charge refer to the evidence on which he founded it. All the four heads of charge arose out of practices which had originated with the present chief baron; all were cases of fees, which were unsanctioned by ancient usage, and which were instituted for his own emolument. The first head of charge related to fees taken on a decree in the Court of Exchequer. It was, perhaps, only right for him to state, that when a case was brought into the Court of Exchequer, it was first of all set down for hearing; and that after it was so set down, it was heard, and a decree obtained upon it, for which a fee was paid to the chief baron. It happened, however, that cases were often set down for hearing which never came to a decree, from a compromise being made by the parties. He would illustrate what he meant by reference to what daily occurred in that House. Bills were often brought into that House, which, owing to various circumstances, were never passed into laws. In the same manner, cases were instituted in the Court of Exchequer, in which decrees were never obtained. The chief baron finding this to be go, said—"Many persons obtain decrees surreptitiously, and do not pay me my fees; I will therefore change the time of taking them, and they shall be paid, not when the decrees are issued, but when the cases are set down for hearing." The chief baron acted upon this principle, and in so acting did that which was not only illegal, but also a hindrance to the suitors in his court. But, not merely did the chief baron change the, time for taking this fee he also continued the ordinary fee on the issuing of decrees, 998 and thus received twice as much as lie was entitled to. He contended, that by such conduct the chief baron had made himself liable to the various penalties which were stated in the law authorities which he had already quoted; for, he had clearly taken, by colour of his office, fees to which he was not by law entitled. He could not exactly ascertain the amount of fees so taken, neither was he very anxious to do so—as he did not care so much about what the loss was, as he did about the principle established. Against this charge the friends of the chief baron had set up two defences; of which the first was, that the fee taken in the first instance—that is, on the setting down the case for hearing—was a mere deposit, and that it was to be returned on the issuing the decree. Now, it turned out upon inquiry, that the chief baron had never given any order to the officer who collected these fees to treat them as deposits; and that in point of fact none of them bad ever been returned to the parties who had paid them. The defence was, therefore, a suggestion entirely supported by fact; and not only Unsupported by fact, but directly negatived by a prior declaration of the chief baron himself. The chief baron had, referred to a precedent, in which other judges of Ireland had ordered certain fees to be taken as deposits; but in the case to which the chief baron referred, for a considerable length of time the fees were treated as deposits, and when they ceased to be so treated, the abuse was committed J by the officers of the court, and not by any of the judges.—Another defence set up for the chief baron was, that the fee was due upon the exemplification, which was an engrossed copy of the bill made out upon the decree; but that defence was not more valid than the preceding one, because the fee had been levied in cases when, with one solitary exception, it ought not to have been taken at all.
He now came to the second head of charge; namely, the question of writs. Writs were of two classes: on one of them fees were due, on the other not. The chief baron however, immediately after his appointment to office, directed fees to be, collected upon them all. On what grounds? He would shortly tell them at He believed it was generally known, that the chancellor of the Exchequer was an officer of the Court of Exchequer, and had the custody of its seal. The, chief baron 999 found out that the chancellor of the Exchequer was bound by his oath hot to use that seal, without ah order either from him or some other baron. He said that his order could only be communicated by his signature that his signature could—only be communicated to the chancellor of the Exchequer by his authority, and that for communicating it, he ought to have a fee. This statement, however, extraordinary as it might appear, was not more extraordinary than the practice. Assuming that the signature of the chief baron was necessary for the affixing of the seal by the chancellor of the Exchequer, it was strange that the fee should be taken, and yet that the signature should not be affixed to it. That no difficulty might occur regarding these writs, he would state that they were writs of preliminary process.
The next head to which he should advert related to the taxation of costs. The late chief baron was entitled to a fee on examining and sighing bills of costs: but the present chief baron, soon after his appointment, discontinued the practice of signing bills of costs, and directed that the fees should be collected for him upon another stage of the proceeding, namely, the writ. Thus fees were taken as for bills of costs where bills of costs were never paid, so that the fee was wholly imaginary. There was but one more case to which it would be his duty to draw the attention of the house. It regarded the difference between English and Irish currency, amounting to 8⅓per cent. When contracts were made in Ireland without the currency being mentioned, it was always inferred to be Irish. The Court of Exchequer of Ireland was divided into three branches—the revenue side, the law side, and the equity side. In the revenue and equity sides, the fees were paid in Irish currency; but, in the law side, some of the tees were paid in English currency to the officer receiving them, who accounted to the chief baron in Irish currency, keeping the difference himself. Wherever however, on objection was made the officer took the fee in Irish currency thus admitting that the additional charge was unsupported by usage or right When the present chief baron came into office, instead of ascertaining what was legal, be directed, that all the fees on the three sides should be paid in the English currency, the officer having no participation; and thus a large addition was made to his own emoluments. 1000 These were the four cases which he was prepared to support by evidence; if he had omitted any thing favourable to the chief baron, he hoped that the deficiency would be supplied: if he had overcharged any part of his statement, he was willing to submit to the censure of the House.
The hon. gentleman then proceeded to vindicate the authority of the reports of the commissioners, alluding particularly to the bills that had been founded upon them; and, in opposition to what had been advanced on a former occasion, cited two precedents in favour of the course he was now pursuing. The first of these was the case of lord Macclesfield, where sir George Oxenden moved an impeachment, grounded upon reports of parliamentary commissioners. Sir W. Wyndham and Mr. Pulteney denied that these reports were sufficient authority, but the House of Commons supported the original motion by a majority of 273 voices against 164. The second precedent was that of lord Melville, which was also founded solely upon the reports of parliamentary commissioners. Mr. Pitt had argued, that it was a case for a select committee; but the House supported Mr. Whitbread. It had been suggested, to the chief baron, that the reports contained merely ex parte statements. The same remark had been made upon the reports against lord Melville, but Mr. Whitbread had successfully contended, that parliamentary commissioners were entitled: to all respect for impartiality and general integrity. It was true, that at present a law existed abolishing fees in Ireland; but he was satisfied that if the House did not now interpose, and show that it was no respecter of persons, fees would continue to be taken and the law to be violated. The Court of Exchequer had itself admitted that the reports formed a sufficient ground for the dismissal of an officer for improper conduct; for it had dismissed Mr. Pollock, first deputy clerk of the pleas upon no other evidence. "It was a little too much, therefore, for the chief baron now to turn round and say, that the reports of the commissioners were not sufficient authority in his own case. Another precedent to the same effect was the proceeding of the House with regard to the chief commissioner of the insolvent court. It might be said, as in the case of lord Coningsby and sir C. Porter, in the time of William 3rd, that one rule of action was applicable to England, and 1001 another to Ireland; but he did not think that such language would be used at the present day. After having dwelt upon this point of some time the hon. gentleman thanked the House for the indulgence it had shown him. He had brought the matter fairly to an issue, as an act of justice to the chief baron and to the country. Either the chief baron ought to be delivered from the charge, or he ought to be removed from his station; and it was a matter of anxious interest to Ireland; and of paramount duty on the part of England, that the administration of the law should not only be placed above reproach, but beyond suspicion. The hon. member concluded by reading a string of resolutions embodying the four charges to which he had adverted in the course of his speech. They will be found in the proceedings of the 8th of July, when they were reported to the House. On the first resolution being put.
§ Captain O'Gradysaid, he need not assure the House that he rose under great embarrassment, which was considerably increased by a knowledge that the last time he had addressed the House on this subject, being unused to public speaking and unacquainted with the usages of courts of justice, he had given offence to the chief justice of the King's-bench in Ireland. He now took the earliest opportunity of saying that nothing could be further from his intention than to give the slightest umbrage to a man of such well-merited distinction and undoubted ability. When he was quoting the authority, and as it were, courting the protection of that high authority, it could not of course be his wish to impugn the noble lord's practice, or to cast imputations upon his conduct. It was not his intention to cast a slur upon any individual, and he hoped that the defence of the chief baron could be conducted without it. He was proud to stand forward on this occasion, because he felt conscious that he could vindicate the injured without the necessity of offending any man. He had awaited this discussion with the most intense anxiety—an anxiety wholly arising from a knowledge of the great disadvantage under which the chief baron laboured in having his case intrusted to the hands in which it was now placed. For he solemnly assured the House, that however painful it might be to him, he would have remained silent did he not in his heart think that truth and justice carried with them greater force 1002 than the most laboured and ingenious attack. He would confine himself, to the general question as to the charges brought against the chief baron, and the criminality that, under all the circumstances, could attach to them. For this was a criminal charge, and a call was made for the severest censure of parliament. He was quite aware that it was impossible for him to offer an unbiassed opinion—feelings must arise in his breast to obstruct the exercise of an impartial judgment. He trusted that those feelings did him no discredit [Hear, hear!]. On that account he knew that his case must suffer; but he hoped, on the other hand, that hon. gentlemen would not suffer themselves to be led away by the abilities of the hon. gentleman who had just sat down, and who, without impugning his general discretion, was equally incapable of arriving at a candid decision on any matter that respected the conduct of the chief baron. He therefore requested the House to dismiss all undue colour that the representations might receive from either side. The result ought to depend merely upon matters of fact. The charges professed to be founded upon the ninth report of the commissioners of Inquiry into Courts of Justice; but it was equally true, that these commissioners, in the most pointed and solemn manner, had declined becoming the accusers of the chief baron It remained, therefore, for the hon. member for Limerick to charge, and. for the House to determine. The ninth report had been laid upon the table three years ago; but, previous to that event, the hon. gentleman, as it were in a prophetic spirit, had moved for its immediate production. An investigation of its contents was instantly actively set on foot, and eleven resolutions, containing eight or nine charges, were founded upon it. These were examined by two successive committees, and the charges, were reduced to three or four; and one of the hardships of which the chief baron had to complain was, that in proportion as the charges were lessened in number, they were, like the books of the sibyl, magnified by his enemies in value and importance; and whereas formerly eight or nine charges were embodied in eleven resolutions, on the present occasion only three or four charges were extended over no less than twelve resolutions. The charges were stated to be grounded upon the evidence appended to the report; but it was 1003 not to be forgotten, that the commissioners, for the furtherance of their object, had the power of selecting the witnesses, of determining upon the questions to be put to them, and of inserting just so much of their testimony as supported the point that was to be established. Yet it was upon this very appendix, that the chief baron was obliged to rest his defence; and when it was remembered, that with this only he had been able to rebut so many of the original charges without being able to examine or cross-examine a single witness, the wonder rather was, that he had been able to accomplish so much, rather than that he had not been able wholly to do away with the few remaining accusations. The case of Mr. Pollock had been brought forward to show that the Court of Exchequer had acted upon the report of the commissioners, but the, fact was precisely the reverse. The court had decided, that the report formed no, reason for imputation, and that it ought never to be received in evidence. Nevertheless, much stage effect had been attempted to be given to this case. Another instance cited with the same object was that of sir J. Galbraith, but there the twelve judges unanimously held that the report formed no sufficient ground for putting a man upon his trial, but the attorney general must adduce his evidence on the prosecution. He did so, and the accused party was acquitted.—He would now shortly call the attention of the House to the circumstances attending the elevation of the chief baron to his present dignity in the first place he had given up an office nearly double the emolument, and he had succeeded lord Avonmore, who, while he devoted the most anxious attention to the public interest, paid but very little Regard to his own private concerns He had thus allowed a system to prevail which threw all the fees of the court, into the utmost confusion. The declining health of lord Avonmore had also occasioned a great arrear of business. Under circumstances, the different arrangements were made by the present chief baron which were now wrought up into a criminal charge. The chief baron, in fact on coming into office, had been compelled to put both himself and his officers in possession of their legal rights—arrasngement necessarily attended with much trouble and difficulty. Still, he had in the end accomplished his object: and he appealed every gentleman 1004 conversant with the Irish courts, whether the measures which the chief baron adopted had not been attended with an increase of business at the bar of the Court of Exchequer? If the chief baron, under his arrangement, had taken some fees to which he was not entitled, he had lost, on the other hand, many to which his title was undoubted; and it was only asking common justice from the committee, to ask them to look at the whole of his conduct in office, and not at isolated parts of it.—The first charge now relied upon by the hon. member for Limerick, was that as to the fee taken for signature to the bills of costs. He was free to admit that the spirit of the chief baron order had not been sufficiently attended to upon that point, and that some small addition to his receipts might have been the consequence, of that error; but the House would recollect, that there was no shadow pf evidence that, before the appearance of the commissioners' report, the chief baron had been aware of such a fact. As to the charge against the chief baron of having taken his fees in English instead of Irish currency, he would merely remark, that the same course had been pursued by the judges of the Court of Common Pleas, the chancellor pf the Exchequer, and the masters in chancery If, therefore, he had been in error upon that point, it was an error into which he had not fallen alone.—The hon. member then proceeded to touch upon the last; point of accusation—the fee taken for the decrees—but we were unable to collect the substance of his statement. He contended, however, upon the whole, that I wherever abuses had existed, those abuses had been unknown to the chief baron, and that there, was not; a shadow of foundation, in what appeared, before the House, upon which a criminal charge could be setup against that officer. Throughout the measures which the chief baron had adopted, it would be seen that he had advanced his claims, either upon legal right or general usage. But, even supposing the chief baron to give up that ground of defence; supposing him to say, that in consideration of the alterations which he had introduced into the practice of the court, he had thought necessary to institute certain fees in, place of others which he had given up; supposing him to rest his defence upon that statement, would he not have the example of judges for the last hundred years to bear him out 1005 in what he had done? The commissioners distinctly declared in their report—no matter how far it might be legal for the officers of justice to create new fees—that the practice of so doing within the last hundred years had existed to a considerable extent. And let it be recollected, that this inquiry went to facts which had taken place eighteen years ago; that the public had no interest in it; and that no prospective advantage could be looked for to it. Let it be remembered that these charges had been suspended over the chief baron for three sessions; new proof being in process of collection from day today in support of them. Had the charges now brought forward been brought forward in Ireland, the character of the chief baron would have been his sufficient protection against them. As it was, he could only entreat of the House not lightly to cast a slur upon the administration of justice, especially in a country where the administration of justice needed every protection which parliament could afford it. [Cheers].
§ The resolutions were then put seriatim from the chair, and the three first agreed to without a division. Upon the fourth resolution being read,
Mr. Hutchinsoncontended, that neither himself nor the committee were in a state to pass any resolution tending to affect the character of the chief baron. He respected highly his hon. friend; but he must nevertheless tell him, that as a man of honour, he was bound not to advance a single step further in impugning the conduct of the chief baron, without first establishing his charges by a most solemn investigation at the bar of that House, affording to the learned judge the opportunity of cross-examining witnessess, and stating his own case. Would any man say that he was prepared to pass sentence of condemnation against a high dignified magistrate who for eighteen years had discharged the duties of his high trust with satisfaction to the country on ex parte information before the committee? As the present resolution was the first that referred to the conduct of the chief baron he should move, that the chairman do leave the char.
The Solicitor-Generalsaid, that although he had been a member of the committee above stairs, he had been prevented from attending its proceedings so regularly as he could have wished. Whether, with the advantage of more constant 1006 attentions, he should have concurred in the opinions expressed by the committee he could not, as at present situated, with certainty say; but he felt himself, under every circumstance, bound to oppose the unfair and this was course attempted to be taken by the hon. member for Limerick. The nine first resolutions of the hon. member Serfs resolutions of affirmation—the last two were resolutions of censure; and the effect of voting those resolutions would be most illegally, most unjustly, and he; would add most unconstitutionally, to condemn a judge of rank and character without giving him an opportunity of being heard in his defence. The House was bound to look with caution at the report of the commissioners; and it could not take the statements contained in that report as evidence. The Court of Exchequer in Ireland, in the cases of Mr. Pollock and sir J. Galbraith, had refused to accept the report of the commissioners as evidence; and sir J. Galbraith had actually been acquitted of the offences which that report alleged against him. The witnesses upon whose testimony the commissioners had founded their report had not been, it should be remembered, cross-examined on the part of the chief baron; nor had that officer been allowed to call other witnesses for the purpose of rebutting their statements. The hon. gentleman, if he meant any thing serious by his motion, was bound to give the chief baron a full opportunity of appearing at the bar of the House and calling witnesses to exculpate his conduct. But since the hon. member relied so entirely upon the report of the commissioners it was worth while for the House to look at that report, and judge to what confidence it was entitled. What were the charges originally brought forward by that report; and, what had become of the major part of them? The charge of an increased fee exacted upon, affidavits sworn, had made a great show at first in the report of the commissioners. The fact was that the judge's fee upon affidavits sworn in court, was one shilling and fivepence, and upon affidavits sworn at the judge's house only one shilling. To prevent to the attornies from carrying all their affidavits to the judge at his own house the fee was made one shilling and fivepence in both situations: and this was one abuse——concurred in, too, by all the judge—which had been strangely insisted upon in the report of the commissioners. This charge 1007 he knew very well, was now given up; but still it was necessary for him to advert to it. In judging of the value of the commissioners' report, it was fit to see, not only how much of it remained, but how much of it had already been abandoned or disproved. A second charge in the report was, for an addition of five farthings to the fee upon an affidavit taken under particular circumstances. It turned out that the loss arising out of that arrangement was greater to the judge than the gain from the increased fee. Another charge of the commissioners, and one which had made a considerable impression was for an increase of the fee taken for swearing in the sheriff. Now, there certainly was a particular act of parliament, fixing the amount of the fee to be taken for swearing the sheriff; but there was no reason to believe that the chief baron had been cognizant of that act; and his predecessor (lord Avonmore) had uniformly taken the same fee which he took. And here he would ask the House, whether it was reasonable to expect that a judge, when appointed to his seat, should set about investigating, upon the instant, the origin of every fee which he took? Of course he would leave such a matter to his officers, and take probably the same sums which had been taken by those who sat before him. The charge, however, as to the fee for swearing the sheriff was given up, and the next charge in the commissioners report was declared by the committee to have originated in a clerical error. So here were four charges, and four of the gravest charges, in the report which the hon. member for Limerick so much relied upon, entirely abandoned. With respect to the charge contained in the resolution now in debate, the committee had not negatived it, but, on the other hand, they had not confirmed it; and until the chief baron himself was heard upon it, how was it possible for the House to decide? Who was there in the House so well informed upon the Case, that he could lay his hand upon his heart, and say to the chief baron, standing for judgment—"I find you guilty?" Had the written evidence, such as it was, been fully considered by the house? The hon. member for Limerick, perhaps, had read it, and one or two other gentlemen: but was it fully in the knowledge of the members, generally, of the House? For his own part, he had certainly read the evidence; but his opinion was, that if it made out 1008 a case against the chief baron; it was at the most only such a case as admitted of an answer; and therefore, again he said, he would pass no vote of censure without the chief baron being folly heard. Much stress was laid upon the change of practice with respect to the fees upon the bills of costs. The case in reality stood thus—the judge signed the writ of taxation, and he signed the bill of costs, and he received for each signature a fee of one shilling. The signature to the bills of costs being merely a matter of form, the judge gave up the practice of signing them, and directed his officer to collect the two shillings upon the signature to the writ of taxation. And certainly it had happened in some cases under this practice, that the clerk had collected the fee of two shillings, where only one shilling would have become due; but that fact had been utterly unknown to the chief baron, who had only gone on in the same course which his predecessor, lord Avon-more, had followed before him. The instances of undue charge had not been known; and how were they likely to be known to the chief baron? For the argument, that it was an abuse to take the fee without giving the signature, where the signature was nothing else than a matter of form, it was an argument which could hardly require an answer. The officer took the fee, it was said, and did not perform the duty. Well; and half the fees taken in our courts of law were taken under the same circumstances. The chief justice, in the Court of Common Pleas in England, took a fee for the taxation of costs, and the duty was performed, not by the chief justice but by the prothonotary. He could not help repeating that he thought the measure of the hon. member for Limerick contrary to law, to fairness, and to constitutional principle. How best to meet the measure, he hardly knew. It could not be met by a direct negative: and as the previous question was not applicable he should move that the Speaker do leave the chair.
§ Mr. Tierneyobserved, that it was rather extraordinary the hon. member should express an anxiety that the chief baron should not be condemned unheard, and yet should propose an amendment, which would have the effect of preventing his 1009 being heard at all. It was his opinion, that the chief baron ought to be heard at the bar, and therefore the House ought to take some step which would induce him to appear. He spoke only to the dry question of form, but pledged himself to no opinion on the merits of the case.
Mr. Secretary Canningstated, that he was ready to affirm the resolutions, as far as they were simply extracts of the reports; but as far as they contained matter of accusation against the chief baron, he was not prepared to affirm them. If the committee entertained the charge, he saw no constitutional mode of following it up but by impeachment; but, perhaps, at the present period of the session, and considering the appearance which the House presented, that course could not be satisfactorily pursued. He should be glad if any better mode of proceeding were suggested. Perhaps the proceedings might be suspended after the committee should have adopted an initiative resolution, which would operate as a warning to the chief baron to apply for permission to be heard at their bar.
Mr. Wynnwas of opinion, that as the two reports contained matters of accusation, the chief baron had already been forewarned of the necessity of entering upon his defence; and he had in some measure done so, by the two letters which he had written relative to those reports. He thought it might be an eligible mode to suspend the proceedings, with the view of giving the chief baron an opportunity of making application to be heard at their, bar. Ho would be glad if an hon. and learned gentleman opposite could tell him whether the chief baron was desirous of being heard at the bar? For if it were ascertained that he was not, the committee ought not to stay its proceedings.
§ Mr. Scarlettsaid, that in his opinion there was no ground for coming to the last resolution; and, indeed, he thought any resolution would be exceptionable which implied a censure, as the reports only related to matters of fact from which no inferences of crimination ought to be drawn, as there was no proof before the committee, that the chief baron might not be entitled to the fees which the reports stated him to have received If the resolution were put to the vote, he f would move an addition, the substance of which would be, that the practice did not appear to 'tie known to the chief baron.
§ Mr. S. Ricestated that in the course 1010 of the proceedings which had taken place on this subject for three years, sufficient notice had been given to the chief, baron to enter upon his defence. He vindicated the fairness of his own proceedings, and said, that any hon. member who accused him of having acted unjustly, ought to point out a fairer mode of proceeding than that which he had adopted.
Mr. Secretary Peelthought, that if there was any difficulty it was not to be obviated by postponement. There were several modes of proceeding. He did not approve of that course which would fix a resolution of censure upon a Judge. It was his opinion, that a person holding such a situation ought to be dismissed altogether, if guilty of the acts laid to his charge, but ought not, under any circumstances, to be partially degraded He did not approve of the mode of proceeding by scire facias in such a case, nor by address. He thought impeachment the only constitutional mode but he could not consent to follow any of these courses, for to each of them many and serious objections presented themselves. His opinion in this respect had not been formed without due deliberation, nor had it been influenced by communication with any other persons. It was founded on the nature of the charges themselves. Supposing those charges to be proved—which but for the sake of the argument could not be admitted—still they would not amount to the high crimes which had been alleged against the chief baron. He (Mr. Peel) could very well conceive that in such a court as that over which the chief baron presided, improper charges might be made without his knowledge. He would not be understood to deny that it was the duty of a judge to examine accurately and scrupulously the conduct of the officers of his court but it that care had not been shown in the present instance, he could not think, taking into consideration the character of the individual, that the neglect called for so grave a punishment as impeachment. Another objection which he had to this latter measure was, its importance and solemnity which rendered it unfit to be applied to the charges now brought against the chief baron. He knew it would be easy for some gentlemen to rise and say to him—"Will you, then, connive at offences so reprehensible in their principle because they are only small ones out the should reply that he did not connive at 1011 them, nor did he go the length of vindicating the chief baron; but he objected for the sake of the public interests, which were so powerfully upheld upon important occasions by the proceeding by impeachment, that its solemnity should be diminished by exercising it for an inferior cause. If it were objected to him, that what he had now urged in favour of the chief baron ought to have been urged three years ago, he would admit that, as applied to himself, the argument ad hominem would be unanswerable, but as applied to the House, he thought it would e a more dignified as well as a more candid course to say, "We have let pass the time at which this charge and the defence would each have had a sure efficient operation; and for this reason it would be better now to postpone it." At the period alluded to the charges were of much graver import than they now appeared to be That relating to the fees taken on swearing in the sheriffs had then seemed to be a serious violation of the law. But no person could now say that it had not been materially altered; for it seemed that this practice, unjust as it certainly was had at least the sanction of the chief baron's predecessors. To this charge, he might with great truth reply, that his attention had never been, drawn to the particular statute under which it was received, and that he had never required of his officer information on the subject. Certainly this was no reason why parliamentary proceedings should not be taken but it was a reason why an impeachment should not be the course adopted. There were also other charges made against the chief baron with which He (Mr. P.) was not satisfied. Considering the burden which the chief baron's duties imposed upon him the time which hey occupied the importance and anxiety of the office, and the character of the individual by which it was filled, he was prepared to believe that although grounds might exist for those charges, still they were far from authorizing the charge of corruption against that individual. He (Mr. P.) could not conceal from himself, that a very lax method of proceeding had been adopted for many years, in taking fees in the courts of justice in Ireland The remedy for this was, not to select any individual as a victim for these offences but to abolish the system; and this had been done by an act of the legislature the right hon. gentleman here referred 1012 to a list of the fees claimed by the masters in Chancery in 1815, contrasted with those allowed in 1735. This long continued practice weighed, in his mind, as a powerful reason why they should not select the present case to visit with a punishment which had been withheld for so many years. So strongly did he feel this, that if he were now called upon to choose between he evils (for they were both evils) of passing by altogether the further investigation of these charges, or of proceeding to impeachment, he should feel inclined to choose the lesser evil, and to pass them by altogether. When the House should have decided to pass the resolutions before it, it would have to decide upon the mode of proceeding, and he had therefore risen in that stage, to call to their notice the difficulties which, in his view of the matter, seemed to beset their future progress. He could not sit down without bearing testimony to the pains and intelligence with which the committee of inquiry had discharged the duty imposed upon them by the House. He had had frequent opportunites of communicating with them, and he had never beheld a more inflexible resolution to surmount the obstacles which had been opposed to them. He could never hear any thing like censure cast upon them without expressing his opinion of their merits.
§ Sir J. Mackintoshsaid, he would give no opinion whatever on the merits of the case. If any subsequent proceeding were to take place, there would be abundant opportunities for doing that. The committee had heard as fair and liberal an accusation from the hon. member for Limerick, and as judicious and meritorious a defence from the hon. relative of the chief baron, as any at which he had ever been present. When he (sir J. M.) left the House, which he had been unavoidably compelled to do, he understood that the difficulty was not whether the house should proceed, but as to the manner in which that proceeding should be conducted. But now, from the last part of the right hon. gentleman's speech, he understood there was an objection to ulterior proceedings.
§ Mr. Peelsaid, he had expressed an opinion, that the proceeding by impeachment would be better than by address.
§ Sir J. Mackintoshsaid, that the committee, so far from being called upon to decide the question, had no right to give an opinion upon it he objected strongly 1013 to argument which had been used, that the smallness of the offence ought I to excuse it from punishment. To sanction this principle would be to sanction the destruction of the judicial body and the diameter of that House. He thought the chief baron ought to be heard before he House, if he thought fit to apply Three years had now elapsed since these charges had been preferred; and during I the whole of that period the chief baron had not thought fit to petition to be heard by himself or his counsel, at the bar of the House. If his hon. friend would therefore withdraw his amendment (which, though carried, would be no acquittal for the chief baron, but rather an escape, which he would disdain), he would then move that the Chairman should report progress, and ask leave to sit again on that day fortnight, with a view to give the chief baron an opportunity to act as he thought proper in his own defence, and for the justification of his character.
Mr. Secretary Peeldenied having said that the smallness of the offence ought to prevent a parliamentary proceeding against a judge. What he had said was, that the smallness of the amount almost precluded the possibility of a corrupt motive.
§ Mr. J. P. Grantobserved, that if he thought the smallness of the amount precluded the probability of a corrupt motive, he Would propose to pronounce that Opinion as the decision of the committee, and not pass the subject entirely over by reporting progress. If, on the contrary, he thought that corrupt motives did exist, he should think that, painful as would be the task, the House ought to proceed.
Mr. Hutchinsonsaid, that his object in moving the amendment was, not to evade justice, but to do justice. What he objected to was corning to a decision on the merits of the case, in a state of ignorance With respect to withdraw he was quite ready however, to withdraw his amendment if the committee were disposed to adopt any other course.
§ The amendment was accordingly withdrawn.
§ Mr. S. Rice, to obviate some of the objections which had been made to it, moved the insertion in the fourth Resolution of the words, "appears by, and stated in."
§ Mr. Scarlett, while he coincided in the spirit of the proposition of his hon. and learned friend, observed, that in a fort- 1014 night the chief baron would be absent on the assizes. The delay must therefore be greater. But, was it probable that hon. gentlemen would be disposed to the vote the summer to such an inquiry For his part, he deprecated commencing it at so late a period of the session, and recommended its postponement to the early part of the next.
§ Sir J. Mackintoshfelt the full force of the argumentum ad inertiam which his hon. and learned friend had used, and which had always a great effect on that House. He thought, however, that if the decision on the subject were postponed to the next session, the chief barn would have a good right to arraign the justice of the House, in denying him ah earlier opportunity of clearing his character.
Mr. R. Smithwas apprehensive that the inquiry must stand over until next session. Some notice of the subject however, not of the nature of a prejudgment, ought to appear on the Journals of the House.
§ Mr. Canning, while he admitted that the amendment to the first resolution made it, not a fact, but an inference from the Report of the Commissioners denied that a similar amendment introduced into the succeeding resolutions would have the same effect.
§ Mr. Wetherellthought the real question was, in what shape the subject should be abandoned now, in order that it might be resumed afterwards? For his part, he saw no use in agreeing to some of the resolutions, unless the others were also adopted, If it were hot intended to proceed with the investigation this session the better way would be to postpone the whole matter to a future time.
The Attorney Generalwished the first resolution to be postponed as well as the others. In his opinion, no culpability would attach to the chief born unless it appeared that he had knowing taken improper fees; and according to the report, he had only placed his signature officially to bills of costs that were not taxed, without examining them.
§ The House resumed. The Chairman, reported progress, and asked leave to sit again.