HC Deb 01 March 1830 vol 22 cc1068-75
Mr. O'Connell

presented a Petition from the Roman Catholic inhabitants of the island of Grenada, praying for the removal of all Colonial Disabilities.

On the Motion that the Petition be read,

Mr. Brougham

said, I do not rise, Sir, to oppose the Motion, nor to enter into a discussion upon the merits of this Petition, but as it relates to a colonial subject, it gives me an opportunity of correcting a misrepresentation arising, no doubt, from misapprehension, but at the same time a misrepresentation than which any one more gross or more unfounded it has never fallen to my lot to hear of, with respect to the conduct of public men. I am quite sure that neither of the hon. Gentlemen who took part in the discussion of Friday night, after I left the House, could have had any intention of saying any thing that would affect either my personal or my professional character. Sure I am, that my hon. friend the Member for Westminster meant no such thing; but the hon. Member for Colchester made the greatest possible mistake respecting facts, when he alluded, in so extremely an unpleasant way, to me and to the profession to which I have the honour to belong. For the profession I have no doubt it was intended, because I am aware that many think there is no better way of promoting a reform in the law, than by degrading the legal profession; and therefore, that whenever an opportunity of vituperating any member of that profession offers, there is so much gained towards the accomplishment of the great object they have in view. I know this is the opinion of many conscientious and enlightened men. It is not mine. They, however, have a right to entertain these opinions, and to act upon them whenever they may find occasion so to do; but, Sir, they have no right to make misstatements; and this brings me to the fact. I understand, that during my absence, allusion was made to a circumstance which I have reason to believe has been often mentioned out of doors, but which now, for the first time, has been brought before this House. Up to this time, I have had accordingly no opportunity of justifying myself by answering to this charge. Now, it is stated, if a Member of this House, who is also a member of the legal profession, be retained in any cause, that, according to the etiquette of the profession, he is debarred from performing his parliamentary functions. As, for instance, if he gave notice in his place that he would impeach a public servant, and that afterwards this public servant gave him a retainer in some other cause bearing upon it never so remotely, the effect of this retainer would, according to the etiquette of the profession, be to stop all proceedings in Parliament, and consequently compel him to give up the charge he had contemplated as a Member of this House, but which was become incompatible with his duty as an advocate. The inference from this, and the fair logical inference, I allow, is that a lawyer is incapable of discharging his duties as a Member of Parliament. But, Sir, on behalf of myself, and on behalf of the profession, I beg distinctly and peremptorily to disclaim all such rules, principles, and privileges, whatsoever. And if it can be shown that one lawyer in England, Ireland, or Scotland, ever dreamt of any such thing, I will at once withdraw my disclaimer. Well, Sir, this was the position, now for the illustration, which is said to be—that in the year 1825 I presented a petition complaining of certain malversations upon the part of Lord C. Somerset at the Cape of Good Hope; and that upon the occasion of presenting it, I intimated an intention of going farther, and that I even spoke of impeaching Lord C. Somerset of high crimes and misdemeanours; but it is added, that after I had taken this very decided course in my parliamentary capacity, I was retained by his Lordship in a cause more or less connected with the subject-matter of the petition; and that this forthwith stopped my mouth, and prevented me from pursuing the parliamentary proceedings to which I had alluded. That is the allegation. Such a statement may be sometimes made for the purpose of attacking the profession to which I belong, as perhaps in the present instance; or it may be directed against myself. But I care not what is the object, nor what the shape of the charge. I give it now, the first time I have had the opportunity, the most positive, unqualified, and peremptory denial; and if, without violating the decorum of this House, I could find words sufficiently strong wherein to couch that denial, so as to make it the more searching and overwhelming, I would not hesitate to use them. I never had a fee, I never had a retainer, from Lord Charles Somerset. I never was, to use the words of the Bill of Rights, engaged or employed in any court or place by Lord Charles Somerset, during the whole course of my life. I never was retained, or employed, or consulted, by Lord Charles Somerset, or any member of his family, in any matter whatsoever, during the whole course of my life. On the contrary, I have been repeatedly concerned, and no later than; last term, for instance, against several near relations of Lord Charles Somerset. It often happens that gentlemen are retained without their knowledge. Indeed it seldom occurs that they know by whom they are retained at the moment the retainer is given. Not trusting, therefore, to my own knowledge, I, to make assurance doubly sure, had my fee-books searched for the last ten years. I did this, not so much in justice to myself us to Lord Charles Somerset; for if I could vary, though it was not very likely, my parliamentary course for a fee of a guinea (the thing is so ridiculous it hardly deserves that a moment should be wasted upon it),it was at least proper to ascertain whether the noble Lord had thrown even that temptation in my way. I say, then, that I caused my books to be searched for the last ten years, and the result is that which I have given. That being the denial to this complaint, I really do not see how it is possible to go farther into it. The House, however, will favour me with a few moments' indulgence, and they will then see how very unjustly towards Lord Charles Somerset (for me it does not affect)—how very unjustly towards Lord Charles Somerset has this colour been given to the transaction. The circumstances of the case are simply these:—I presented a petition to this House on the subject of the Government of the Cape, and that petition contained one very grave charge against Lord Charles Somerset—it was that of having indirectly taken a bribe from a party to a suit which he was about to decide. It was alleged that he had called on a party to buy a horse at the sum of 10,000l., a sum greatly exceeding, of course, the value of the animal, and one which was supposed to have been given to influence the judgment of the noble Lord in a suit in the Court in which he presided, the real value of the horse being stated at 700l.; and it was alleged, that after this transaction, Lord Charles Somerset decided in favour of the party who was the purchaser. Though this charge was in a parenthesis of the petition, I said at once, it was so immeasurably more important than the rest, that if I found there was any foundation for it (which I did not believe, but about which I would inquire), I should myself, in the capacity of a Member of this House, which I could do without a seconder or a support, and, indeed, without a majority of the House, impeach Lord Charles Somerset. I was then Counsel in a cause, in which, it was true, Lord Charles Somerset was in some way concerned; but he was not a party to the cause, nor did he retain me as Counsel; nor was I retained after the charge I had brought against him on the petition in this House,—The fact was, he had been the judge in a case in which an appeal was brought against his judgment; and, though I was engaged to support his judgment, I was no more connected with him than I am with any judge in support of whose decision I may have to plead in this country. Of course, having to defend the judgment appealed from, I was bound to look into the case, and it turned out that that case arose from the same in which the transaction of the horse was stated to have occurred. I looked into the case to see what it was. I was Counsel for the respondent, and it therefore became a matter of necessity that as such Counsel, I should support the judgment which had been given in favour of my client. I was bound to support the judgment before the Privy Council. As soon as I found this out, I stated to the House the conflicting duties I had to perform; I was in what our neighbours, the French, call a "false position;" that is, I had in the morning to argue as a Counsel in favour of Lord Charles Somerset's judgment before a Court attended frequently by Members of this House, and in the evening I had to come down here, and before many of the same Members, to impeach that judgment as a Member of this House. I ask whether, under these circumstances, there was any thing very strained, or very refined, in stating to the House the position in which I stood, and in asking whether there was not some hon. Member who would relieve me from the difficulty of my position, and undertake the management of the matter of that petition, for if not, I would give up the case, and do my parliamentary duty? I am sorry to take up the time of the House, but I must beg the attention of hon. Members, for it is an easy thing to attack any man, and he ought to be allowed every advantage in making his defence. I have stated that it was alleged in the petition that on a certain day the horse was sold for the large price of 10,000l. If that statement had even the shadow of a foundation, I should have been bound to bring the impeachment; but when I looked into the case, I found, in the first place, that the sums stated were wrong. The horse was sold not for 10,000l., nor for any sum of the kind, nor was its value 700l. or 800l., but 300l. or 400l., which I believe is a usual price for such animals as these. That was the first error. In the next place, it was physically impos- sible, as I will satisfy the House, if they will do me the honour to attend, that this transaction of the purchase of the horse could have had any effect upon the judgment of Lord Charles Somerset, for it occurred some months after the judgment had been delivered. The judgment was delivered on the 30th of April, and the sale of the horse took place on the 1st of September. But that was not all: for if the purchase of the horse had been made to influence the judge, his judgment was all the wrong way, for it was against the man to whom the horse was sold. Now, after this, suppose I had had ever such good reasons, in the first instance, to confide in the statements in the petition, I ask whether I was bound to go on with it, after I had thus discovered its material error? I must at the same time say on behalf of the gentleman whose petition I presented, that I thought then, and think still, that he was ill used; and I should be willing to present the petition from him, or any other man, under similar circumstances: but it is one thing to present a petition, and another to go on and impeach the government mentioned in it. I cross-examined the gentleman who furnished me with the petition, and did what I could to assure myself of the truth of the statements in it; but it was not his own case, and of course he could only speak to the best of his belief. When I found I must fail in that charge, I resolved not to go further; and within a week afterwards I stated to the House that it was too late that Session to put a public officer on his trial, and that the question must therefore be postponed to the next Session—it was so postponed; in the next nothing was done; but in the Session after, I gave the same explanation which I have now given, and which I hope I shall not be called on to give again. I acquit the hon. Member who has brought the matter forward of any intention of attacking me personally; but I must express, on behalf of the profession of the law, not of myself, a doubt whether a more complete, and perfect, and satisfactory answer could be given to any charge brought against one of its members.

Mr. D. W. Harvey

said, that the hon. and learned Member who had just addressed the House had but done him justice in saying that he had no intention of attacking any particular individual. He had no such intention; but he would not abstain from doing his duty under the dread of falling under the exercise of the powers of any hon. Gentleman, even of the hon. and learned Gentleman himself. He confessed he had thought that it was impossible for a man to be in such a situation without having his judgment influenced by it in the performance of his duty in that House; and it occurred to him the more strongly, from the peculiar locality of the hon. Member in that House—for it happened just about that time that the hon. and learned Gentleman took a conspicuous situation on the other side of the House. After he had expected to have seen the noble Lord impeached, he was surprised, and his surprise was not singular, at the course the hon. and learned Member so peremptorily and unexpectedly took: but it was obvious then, and it appeared now to be the fact, that he was engaged professionally in the same matter, and the result appeared to be, that it produced in his mind an impression the most perfectly different from that which he had expressed when he read the petition in that House. He had never given any opinion on that case — he entertained none; but he had no doubt, after the satisfactory statement made by the hon. and learned Gentleman, that he had exercised a sound judgment on the subject. There was only one circumstance which was at variance with what the hon. and learned Gentleman had observed, and that was an observation which amounted to this, that it was preposterous to suppose that any gentleman in the profession could be Counsel and Judge in the same cause at the same time. Did the hon. and learned Gentleman forget that there were fourteen Courts, or divisions of a Court (for such were the lists of Commissioners of Bankrupts) sitting at the same time, and that as almost all the persons composing these Courts were practising barristers, each might be retained to plead before the Court of which he was a member. He would not say it was a seemly practice, but so it was. The hon. and learned Gentleman had asserted that he (Mr. Harvey) was "ready to join with the crowd in raising an outcry against his branch of the profession, and assaulting the magnitude of barristers fees He really had no wish to do any such thing; but at the same time he must say, that there was ample room for amendment in that respect, and that no reform would be effectual which did not place that portion of the profession under control and regulation. If a solicitor charged 13s. 4d., and the Master struck off 6s. 8d., the party got the benefit of the disallowance; but if a fee of fifty or one hundred guineas was marked on the back of a brief, and the Master disallowed one half of the sum, or even if the barrister did not attend in Court, he knew no means of getting back the sum that had been disallowed. Such a statement of his opinion was certainly not an attempt to run down a branch of the profession incapable of defending itself. He was however, a reformer; and being so, he was desirous that reform should be carried into every department where it was required.

Mr. Brougham

affirmed that the hon. Member was still in error as to the facts, as much as the petition alluded to had been, with respect to the charge of bribery against Lord Charles Somerset. The hon. Member alluded to the locality of his (Mr. Brougham's) position in the House, which he observed had become changed about that time. Now it did so happen that in this he was altogether wrong. The transactions respecting the petition were in 1825. They were begun, continued, and ended in eight days, in the month of May or June in that year. It was a great mistake, therefore, to connect his change of position in that House with the circumstance, for that change did not occur until long after. He repeated, that he would never again trouble the House on this subject, for he had given the same explanation two or three years before.