§ The Order of the Day for the further consideration of the report of the Committee appointed to take into Consideration the Conduct of Sir Jonah Barrington, having been read,
§ Counsel for Sir J. Barrington, were ordered to be called in.
appeared at the bar, and addressed the House for Sir J. Barrington. He observed, that he was instructed not to enter upon the merits of the case, but to confine himself solely to the course of proceeding which had been adopted. It had now, he said, become a constitutional principle that no Judge should be removed from his situation unless a clear charge of malversation could be made out against him. Then, supposing the suspicion of malversation to exist, the question was, what course of proceeding was to be adopted in order to ascertain the fact. He believed that the course which had been pursued with respect to Sir J. Barrington was quite unprecedented. The misconduct of Judges had frequently come under the consideration of Parliament. Two Select Committees of the House of Commons had each made a report condemnatory of the conduct of the present Chief Baron of Ireland for increasing his Fees; but the House refused to interfere, on the ground that it was not bound by the decision of a Select Committee. He understood, that on the present occasion, the Select Committee had pursued the investigation in 966 the unavoidable absence of Sir J. Barrington. If that were the fact, and the House should act upon the report of the Committee, it would, in his opinion, be acting in hostility to the elementary principles of justice. He thought that the verdict of a Jury should be the foundation of the proceedings of the House. Sir J. Barrington might have been proceeded against by impeachment. If it were objected that that was a tedious and cumbersome proceeding, he could mention two others which might have been pursued. A scire facias could have been sued out to abrogate the patent of office; or a criminal information could have been filed by the Attorney General. The latter proceeding would have occasioned no delay. That course was still open, and he submitted that it was the most constitutional one to pursue. At all events, if the House resolved to take the matter into its own hands, it should hear evidence at the bar, and not decide according to the opinion expressed by a few of its Members. In his opinion the House of Commons was an unfit place for an investigation of this kind. No popular assembly did itself honour by erecting itself into a Court of Justice, and entering upon an inquiry, for which by its constitution it was incompetent. The present proceeding would establish a dangerous precedent, which might be fatally imitated in bad times. It was not an extravagant supposition, that on a future occasion the Ministers of the Crown might wish to get rid of a Judge, and to put another person in his place; and all that would be necessary to enable them to effect that object would be, to obtain a report from a Select Committee, as had been done on the present occasion. It was on behalf of all Westminster-hall that he entreated the House not to act upon the decision of a committee. If it should, no Judge, however correct in his office, would be safe against the attacks of a Minister.
§ Counsel withdrew.
Lord F. L. Gower
observed, that he could not agree in the view taken by the learned gentleman. There was a great difference between the case of the Irish Chief Baron and the one under consideration; for in the former there were strong doubts entertained as to the degree of criminality, whilst in the present case there were none. He could not agree with the learned Counsel, that it was necessary to have 967 the verdict of a Jury as the foundation of the proceedings of the House. The House would surrender up its power if it recognized such a principle. If that were the principle of the law or the constitution of Parliament, or of the country, he could see no reason why the Statute of the 12th and 13th of William 3rd should have been passed at all. In his opinion, it was a total misconstruction of that Statute, to suppose that it was necessary for Parliament to call for the decision of any other body of men in cases like the present. The learned Judge himself in the case now before the House, virtually submitted to its authority, by appearing before a Select Committee of Inquiry. He did not mean to contend that the House was bound to act on the decision of that committee. But the evidence given before it had been laid before the House; and, having examined it, the House ought to pursue that course which would best meet the justice of the case; and thus having maturely weighed the evidence, and well considered every part of the case, it appeared to him that no other course could be taken but that of moving an Address to his Majesty, praying for the removal of Sir J. Barring-ton from his office of Judge of the Admiralty Court in Ireland. The charges had been too clearly substantiated to admit of any doubt; and, as a proof of this, it should not be forgotten that the learned Counsel who had been heard at the Bar did not enter into any inquiry with reference to the merits of the case, and did not attempt to controvert the facts which were given in evidence. His Lordship concluded by moving "that the first Resolution of the Committee of Inquiry, with respect to the Conduct of Sir J. Barrington, as Judge of the High Court of Admiralty in Ireland, be read a second time."
§ Sir R. Wilson
said, that when any inquiry, whether of a civil or criminal nature, took place in our courts of law, the defendant had the advantage of examining and cross-examining witnesses. He hoped that the same course would be pursued in this case, and that the House would not exercise its power, and call for the dismissal of the learned Judge without first hearing his witnesses.
The Solicitor General
said, that having carefully examined the evidence, he was certain that he came to a safe conclusion when he averred, that a case was never more directly or distinctly made out against 968 any man than was the charge preferred against the learned Judge. Leaving the parole evidence out of the question, and only making those statements which were given in under his own hand, he was bound to say, that every charge alleged against the learned Judge was fully substantiated. The orders written by him placed the matter beyond the possibility of doubt. The learned gentleman entered into a detailed examination of the evidence adduced before the committee, and argued that it clearly proved gross malversation on the part of Sir J. Barrington. He proceeded to say, that it had been asked why, instead of taking the course which had been pursued, a criminal information had not been filed against the learned Judge? He would answer, that the only reason why a criminal information had not been filed, or a criminal prosecution instituted, against the learned Judge was, his advanced age and his many infirmities. The present course was adopted from a feeling of compassion towards him. Ministers had taken this step, considering at the same time what was due to the country, and what was due to the situation of the learned Judge. Of this he was convinced, that no judicious friend of the learned Judge would have advised him to make the application which the House had this day heard. If a criminal information had been prosecuted, most unquestionably it would have been followed by severe personal punishment.
The Solicitor General
said, those who had felt it to be their duty to investigate this business were not to be guided by what the learned Judge wished, but by their own view of what was most proper to be done. The question was, whether the present was or was not the most proper course of proceeding that could be adopted? In a case susceptible of doubt, he should be inclined to proceed differently; but there was no doubt here. The investigation, both by the Commissioners of Inquiry and by the Committee, clearly proved the truth of the charges. And why was a prosecution now demanded? Precisely for the same reason which had induced the learned Judge heretofore to throw every obstacle in the way of a speedy decision. The learned Judge was anxious for delay; but he hoped the House would feel that sufficient indulgence had already been extended towards him.
§ Sir C. Wetherell
could not accede to the doctrine that the House ought to send this case before a Jury. If it did so, it would be a virtual surrender of the great privilege which the Constitution had conferred on the Commons of England. There was, however, another question, on which he entertained considerable doubt, namely, whether the proceedings before the committee were of such a nature as ought to be acted on judicially by the House. He felt so much doubt on that point, that he was induced to wish that the noble Lord's resolution should not be pressed at the present moment. It should be observed, that in cases of equal and of superior importance which had been brought under the cognizance of the House, the uniform practice had been to examine witnesses at the bar. This was the course which had been taken in the case of the Duke of York, and in many other instances. Indeed, it was quite unusual to take a condemnatory step against a public officer, without first hearing evidence at the bar. A proceeding of that kind did not imply a disbelief, on the part of the House, of the evidence given before a committee, or a doubt as to the propriety of its report; it was merely the carrying into effect a great constitutional principle.
§ Mr. Harrison Batley
said, the evidence, as it stood, was conclusive, as to the delinquency of the learned Judge; but if evidence were called, and subjected to cross-examination, a very different case might be elicited. He was therefore in favour of hearing witnesses.
§ Mr. C. W. Wynn
said, that there were both advantages and disadvantages connected with the examination of witnesses at the bar. Cross-examination, he admitted, was a very considerable advantage; but there was this great disadvantage, that many Gentlemen left the House after having heard the first part of the evidence, and others came in, who were thus only in possession of the latter part. In such cases, very few Members were acquainted with the whole of the evidence when they were called on for their decision. Besides, a spirit of party was often observable in an examination before a committee of the whole House, which tended to pervert the course of justice. He had, on some such occasions, seen men whose conduct was generally impartial, led, by the feeling of party spirit, into acrimonious dissensions, which diverted their minds from the real bearings 970 of the case under consideration. With respect to what had fallen from his learned friend (Sir C. Wetherell), he doubted very much whether it was the uniform practice of the House to hear witnesses at the bar. The mode of proceeding by Address was essentially the same as proceeding by impeachment. In the case of Lord Melville, the proceeding originated in the report of the Commissioners of Inquiry, and the charge was afterwards investigated by a committee up-stairs: no evidence was called to the bar. Nothing was more common on questions of privilege than such a proceeding. In many of these cases the charge was considered in a committee up-stairs, and, on their report, the House pronounced its decision. He was surprised to hear it said that any hardship was inflicted on the learned Judge by the course which had been adopted. So far was this from being the case, that he did think it, to a certain extent, discreditable that the report of a commission, so deeply implicating Sir J. Barrington, should have been allowed to remain a year and a half upon the Table without steps being taken in the matter. Every opportunity was afforded to the party to defend himself, and, if possible, refute the charges brought against him. The right hon. Member, after tracing the steps taken by the commissioners, and subsequently by the committee of which he had been Chairman, observed, that all their acts evinced the greatest anxiety to give Sir J. Barrington a fair hearing. With respect to the course to be adopted now that the charges against the Judge had been proved, undoubtedly the House could proceed to address the Crown for his removal. Such a power was vested in Parliament; and as it had been given by the Statute, the only reasonable inference was, that it was intended to be exercised. That it ought to be resorted to on the present occasion also there could be no doubt. Indeed, if it were not for Sir J. Barrington's age and infirmities, he (Mr. Wynn) should have considered the case in the light of one calling for the exercise of still greater severity. Considering the great importance of keeping the judicial station pure and untainted, it was the duty of the Legislature, when judicial delinquency was proved, to punish it with adequate severity, and if, in the present instance, the House was not called on to proceed with the 971 utmost rigour, it was solely ascribable to the circumstances of the party. He must protest against the proceeding of that day being drawn into a precedent in similar cases. The right hon. Gentleman further observed, that the cases of Judge Fox, Chief Baron O'Grady, and Mr. Justice Johnstone, were in many respects different from the present case, and Parliament did not deem it necessary to address the Crown upon them, but he contended, that the case of Sir J. Barrington clearly called for that proceeding. He then proceeded to prove, that there could be no reason for the House instituting a second investigation at the bar, of a matter which had been already distinctly established, unless some Member should be found to say that there were points connected with the case that required further elucidation. He was not of opinion that any further inquiry was necessary. Putting aside the testimony of witnesses, the documentary evidence arising out of papers, every one of them admitted by Sir J. Barrington as authentic, placed the case beyond the limits of controversy.
§ Mr. D. W. Harvey
said, that in the able address delivered by Counsel at the bar, it was maintained, that Parliament had not the power to proceed by address to the Crown for the removal of Sir J. Barrington. Now, without going into the merits of this argument, considered in a constitutional point of view, he must dissent from it as inapplicable to the present case, inasmuch as it was at variance with the prayer of the petitioner, which was to be heard at the Bar, in order to disprove the charge; Sir J. Barrington thus recognizing the authority to investigate it,—an authority that would be altogether nugatory, if the House could not afterwards proceed to address the Crown for his removal. The hon. Member proceeded to quote, from the fourth report of the Commissioners of Inquiry into the state of the Temporal and Ecclesiastical Courts in Ireland, a part of the remarks applicable to the Admiralty Court. In reference to the emoluments of Mr. Pineau, the registrar of that court, the commissioners stated, that his average receipts in three years, ending 1814, were 216l. 13s. 4d.; but added their opinion, "that it was probable some advantage was derived by this individual from the custody of monies paid into court." He would be the last individual in the world 972 to defend such a practice, but it was obvious that it existed, and further, as the commissioners stated, that "there existed no other security or responsibility for those monies than that which was to be found in the integrity of the officer." Thus it appeared that the registrar was the banker of the court, and if he had power to deal with its funds, it was competent to him to lend them to whom he pleased; he might lend a part of them to Sir J. Barrington. He admitted that it was discreditable to the country, and disgraceful to the Government, to allow a report to lie for years on the Table, in which such an undue use of the monies of suitors in a court of justice was stated, and to adopt no measures for the prevention of the evil. Still, looking at the case as it stood, it amounted to this,—Sir J. Barrington borrowed money from an officer of the Admiralty Court, who, according to the custom existing there, appeared to be justified in lending it. That was all. The hon. Gentleman then urged the House to call Sir J. Barrington to the bar, and ask him whether he had any testimony, oral or written, which he wished to lay before Parliament in explanation of the transaction, or in refutation of the charges adduced against him. This was all that was demanded by Sir J. Barrington, who stated, that he had such evidence to lay before the House, if an opportunity were afforded of doing so. Having intimated his opinion that the committee had somewhat deviated from the principle of impartiality in their report, and that they appeared to labour to produce a sort of ad captandum effect by insinuating that frequent misapplications of the funds of the court had been made for the convenience of Sir J. Barrington, the hon. Gentleman went on to say, that such misapplication was only charged by Mr. Pineau in two cases, those of the Nancy and Redstreak. The hon. Member then enumerated some of the details of those transactions, for the purpose of showing that, assuming the right of the Registrar to deal with the funds of suitors of the Admiralty, Sir J. Barrington was justified in borrowing a portion of them, the pecuniary responsibility resting between him and the Registrar. In conclusion, he hoped the House would allow this individual, aged and worn down by infirmities as he was, to appear at the bar for the purpose of 973 offering evidence, oral or documentary, to rebut the imputations cast upon him. Sir J. Barrington had declared, that he possessed the means of exculpating himself, and in his petition courted further inquiry. The House would do well to grant his request: if Sir J. Barrington failed in his attempt, they would be justified in adopting ulterior measures, after giving him a fair hearing; if, on the contrary, this individual should succeed in establishing his innocence, no Gentleman in the House could regret the time spent in the investigation which should have enabled Sir J. Barrington to emancipate himself from the serious and imperishable consequences of an address of Parliament to the Crown to remove him from office.
§ Mr. C. Wynn
said, that the hon. Gentleman would observe, that the documents referred to were interlined by the Judge. The hon. Member, too, thought that if the Registrar might lend the money of the suitors, the Judge might borrow it. Such a state of things would be monstrous enough; but it was not necessary to deal with this argument, because Sir Jonah Barrington, if he had borrowed the money, had borrowed it as gentlemen borrowed purses on Hounslow-heath. He made a peremptory order on the Registrar which subordinate officer to the Judge was bound to obey.
The Solicitor General
again referred to the evidence to shew that Sir Jonah Barrington had appropriated the money to his own use.
Sir R. Inglis
said, that the prayer of Sir Jonah Barrington's petition had been practically granted, and that the evidence taken before the Select Committee had been virtually admitted by Sir Jonah, by the course which his Counsel at the bar had thought proper to follow. Whenever a tribunal had been appointed to investigate this case, Sir Jonah Barrington had avoided going before it, and seemed to look out for another tribunal. The time for appealing to the Court of King's Bench, or to the House of Lords, had, he thought, gone by last year, and he should therefore support the Motion.
§ Sir R. Peel
said, he thought the more convenient course would be, to consider the propositions before the House separately. His hon. and gallant friend (Sir R. Wilson) proposed, that they should abandon the proceedings before the House, 974 and that a criminal process should be instituted against Sir Jonah Barrington. He could not acquiesce in this proposition. He would not leave it to a court of law to determine, on evidence strictly legal, whether there was ground for the removal of a Judge. If such a course were sanctioned, the law which provided for the independence of the Judges would be a curse instead of a benefit to the country. That Judges should be, as they were, independent of the Crown, no one, he supposed, would question; but was a Judge to be allowed to take advantage of that law which conferred this independence on him, to neglect his duty to the country? Surely not. Let him remind the House that there were many disqualifications, short of legal crimes, which would justify the removal of a Judge. If, for instance, a Judge should be guilty of gross and continued immorality, that would justify the House in addressing the Crown for the removal of such a person from the bench, though, in the eye of the law, it might not be sufficient for a formal sentence to that effect. Again, the absence of a Judge from the realm; pretended indisposition on the part of a Judge; advanced age or infirmities which unfitted a Judge for performance of the judicial functions; any of these circumstances would justify the House in addressing the Crown to remove a Judge. Was it to be endured that a Judge, who performed no duty, should be allowed to draw his salary from the public funds? Would it become them, the guardians of the public purse, to suffer this? There were many sufficient grounds, then, for an address for the removal of a Judge, though no legal crime could be proved against him. If he had a moral conviction that a Judge had committed acts which disqualified him for the judicial office, though he could not be convicted of any legal crime, he should think himself justified in joining in an address to the Crown for the removal of such Judge, without waiting for positive proof of the individual's guilt. On these grounds, therefore, he could not adopt the principle on which his gallant friend had founded his proposition. The second proposition turned on the question, whether it was competent for the House to proceed on the report of the Select Committee, or whether it ought to hear further evidence at the Bar before proceeding to address the Crown, He 975 should be very sorry to sanction it as a rule, that in every case like the present they ought to examine evidence at the bar. If such a rule were to be admitted, he did not see the use of appointing a committee, and he would say, let them never appoint a select committee again. But in this case they had the report of a Commission appointed by Act of Parliament, and they had evidence taken on oath before that Commission in addition to the report of the Select Committee. The conclusion to which those authorities had come, and the conclusion to which he had come with respect to the conduct of Sir Jonah Barrington, was founded on documentary evidence, which Sir Jonah did not even now pretend that he could negative. Two different opportunities had been given to Sir J. Barrington to explain, or to rebut that evidence. By two different tribunals, Sir J. Barrington had been invited to do this, but he had neglected those opportunities, and he had not accepted those invitations. Upon these grounds he was morally convinced of Sir J. Barrington's guilt. If Sir Jonah had told them that he could disprove any, and what, part of the evidence, the case would have been different; but to a vague proposal of hearing evidence, which would only create further delay, he had no hesitation in giving his refusal. He deeply regretted the necessity of such a proceeding against a gentleman of advanced age, and belonging to an honourable profession, but he did not see how the House, upon which this duty exclusively devolved, could possibly avoid the performance of it, however painful it might be.
§ Sir R. Wilson
contended, that Sir Jonah Barrington ought not to be punished until he had been legally tried. With few more than fifty Members in the House, and on an unusual day, they ought not to proceed to vote this Resolution; and he should therefore move, as an Amendment, "That Sir J. Barrington be called to the Bar, and asked what is the nature of the evidence he is desirous to produce." The House would then be able to judge respecting the admissibility of the evidence, and what ulterior measures should be adopted.
Lord F. L. Gower
opposed the Amendment, on the ground that it would create further and unnecessary delay.
§ Mr. A. Dawson
said, the reason why he seconded the Motion was, that he wished to have no vague mention of other evi- 976 dence that could be offered. Let Sir Jonah Barrington be called to the bar, and let him be asked if he had any witnesses to call, and what were their names.
§ Mr. D. W. Harvey
said, if it should appear, when Sir Jonah Barrington was called to the bar, that his object was delay till the next Session, he, for one, would not consent to it; but if he wished bona fide to have witnesses produced and examined immediately, he ought not to be refused; the less so, as there was reason to believe, that if the late Government had continued, this prosecution would not have been brought forward. He had seen a letter to Sir Jonah Barrington, from Mr. Lamb, now Lord Melbourne, in answer to one on the subject of the retirement of the former from his office as Judge of the Admiralty Court. The hon. Member then referred to the first salary received by Sir J. Barrington, as Admiralty Judge, which was only 500l. a-year; but afterwards, on the recommendation of Lord Stowell, to whom Sir Jonah's memorial on the subject was referred, it was raised—not to 2,000l. a-year as Lord Stowell had recommended, but to 1,000l. There was also a compensation which Sir Jonah was to receive for some situation he had held before the Union, and this compensation, it was understood, was to come out of the Droits of Admiralty. This feeling it was, that made him think he had some right to appropriate some of those droits. Sir Jonah might have retired at one time, and if he had, this prosecution would not have been heard of; he had some claims too on the country, and on these grounds he should support the Motion of the gallant General.
§ Sir R. Peel
said, that at the time of the correspondence to which the hon. Member alluded, Mr. Lamb could have known nothing of the transactions in which the present case originated. Mr. Lamb's letter was dated 12th May, 1828, and the report of the law-commissioners on the subject of these transactions was not made till January 1829. As to the remarks of the hon. Member, respecting the understanding about the compensation from the Droits of Admiralty, the hon. Member himself must see, that, if urged as a defence, they must involve an admission of the fact of appropriation.
§ Mr. D. W. Harvey
had only mentioned 977 them as the funds out of which the compensation was to have been given.
§ Mr. W. Harvey
Not in vindication; he vindicated nothing. He only repeated what was urged by Sir J. Barrington in his vindication.
§ Sir J. Newport
remarked, that at the time of the correspondence with Mr. Lamb, there was nothing known of any charge of corruption against Sir Jonah Barrington.
Mr. Alderman Wood
thought it but fair that Sir Jonah should be heard before he was condemned. Any prisoner at the Old Bailey, before receiving sentence, was asked what he had to urge why sentence should not be passed on him. No feeling of inconvenience to the House should prevent the accused from being heard.
Lord F. L. Gower
did not speak of any inconvenience to the House. What he said was, that it would be inconvenient to public justice to let the matter stand over to the next Session.
§ Mr. C. W. Wynn
said, that when a party was heard by Counsel, he was bound by the defence set up for him. If he chose to have called witnesses, that was the time to urge the claim; but Counsel having retired without making any such demand, it was now too late.
§ The House divided:—For the Amendment 4; Against it 56—Majority 52.
§ The original question, that the first Resolution [for which see ante, page 485] be then read a second time, was agreed to.
§ On Lord F. L. Gower moving the second Resolution,
§ Sir C. Wetherell
said, that as a constitutional question, he thought the address to the Crown, for the removal of a Judge from his office, ought to be founded on evidence taken at its bar, and not before a select committee. There were, he was ready to admit, circumstances in the present case which would justify a departure from the general rule for which he contended, as the charges here were mainly dependent on the written documents of the party accused; but then 978 those circumstances should be stated in the Resolution as the ground for departing from what he considered the constitutional practice. He threw out this as a suggestion for the consideration of the House.
§ Resolution agreed to.
§ At moving the third Resolution.
§ Mr. C. W. Wynn
suggested, that as this was a serious malversation in office, a stronger expression ought to be used in the Resolution as applying to it.
§ Sir Robert Peel
said, the difficulty in the adoption of the suggestion was this—that as the accused party had no notice, it would not be fair to him to alter the character of the delinquency now by any description different from that of which he had received notice. He was fully impressed with the importance of the argument of the hon. and learned Gentleman (Sir C. Wetherell,) whose very able view of the case entitled his suggestion to much weight. As a general principle, he would certainly admit that the hearing of evidence at the bar would, in a case like the present, be proper; but there were circumstances in it, particularly the evidence being chiefly documentary, which justified the departure from that principle in this case. It appeared to him that the case had legitimately concluded when the Counsel retired from the bar, and that the House would be fully warranted in leaving the special circumstances to be collected from the record.
§ The rest of the Resolutions were agreed to seriatim.
Lord F. L. Gower
then moved, "that an humble Address be presented to his Majesty, requesting that he would be graciously pleased to cause the said Sir Jonah Barrington to be removed from the office of Judge of the High Court of Admiralty in Ireland."
Mr. S. Rice
objected to the Motion, on the ground that no previous notice had been given to the House that it was the noble Lord's intention to move such an Address immediately on acceding to the Resolutions.
§ Sir R. Peel
observed, that it was quite impossible to put Resolutions of this nature on record without following them up forthwith by an Address to the Crown as a necessary consequence. It would, of course, be requisite to give time to the committee which should be appointed to prepare an address in conformity with the Resolutions.
§ Mr. C W. Wynn
thought it inexpedient that Sir J. Barrington should be permitted to remain in office an hour longer than the proper forms would allow, after having been stigmatized by the House of Commons in such a manner as to render his continuance as Judge of the Court of Admiralty incompatible with the public interests.
§ Motion agreed to, and Committee appointed to carry it into effect.