§ Mr. Harvey* I rise, Sir, to solicit permission to introduce a Bill to give power to the Court of King's Bench in England, to compel the Benchers of the four Inns, in certain cases, to admit parties to become members of the societies over which they preside, and subsequently, having passed through their state of pupillage as students, to call them to the degree of Barrister-at-Law. I am aware of the obligation which every Member of this House, seeking to increase the number of our statutes, imposes upon himself, of clearly explaining the nature and vindicating the necessity of the new law whose adoption he advocates. Of this obligation, I will at once, and without circumlocution, proceed to acquit myself simply and briefly, as shall be consistent with a due understanding of the subject, for I am not one of those who consider the use or excellence of oratory to consist in the length or excursiveness of a speech, for which, to a mind so constituted, this case offers temptations difficult to be resisted.
To trace the history of our Inns of Court from remote times—at one period the seats of learning, at others the chosen scenes of royal revelry—to show how they have departed from their original utility as they have grown rich in money rather than in mind, would, no doubt, furnish matter not destitute of interest, nor altogether foreign from the occasion. In abler hands a gallery of the learned and distinguished men who have adorned these Inns might be introduced, and paraded in the
*Reprinted from the corrected Report, published by Ridgway, to which Mr. Harvey affixed this motto "In my opinion:—Mr. Harvey is the subject of the greatest slander of all men that live on the face of the earth:"—Sir Samuel Shepherd.649 discussion; and then, when measured by that standard which I have ventured to reject, might a speech of great pretension be made. But truth requires no such extrinsic aids, and the subject which I have risen to introduce to the notice of the House has its foundation so deep laid in truth, that to swerve from the straight line of simple narrative, for the sake of making a display of either oratory or learning, would be tantamount to a betrayal of the cause in which I have embarked.The subject, Sir, is one which involves great constitutional principles, especially meriting the attention of every class and degree of Reformers. By those who can tolerate no abuse, however sanctioned by time, the object of my Bill will be cheerfully supported, while to those who restrict their notions of Reform to the correction of abuses, as their actual existence may from time to time be shown, it offers an occasion for giving effect to their principles, which they will no doubt feel bound to embrace. And if it should be asked, as naturally it may, wherefore it is, that a measure possessing such claims to support should so long remain without an advocate, I should turn for an answer to the prevailing indisposition of the Members of this House to come forward upon questions which do not enlist the feelings and agitate the passions of men, or, I might find a more ready answer in the excusable aversion of unprofessional men to entangle themselves in any question which bears the impress of, or has even a remote connexion with, that awful subject, the law—an aversion which becomes almost insurmountable when it is known, that whoever meddles with such sacred subjects brings himself into collision with men practised in all the ingenious artifices of debate, and who are too apt to infuse into their opposition no slight portion of that studied sarcasm and forensic bitterness which they always have at command.
These, Sir, I admit, are but ignoble fears, and such as I hope, will never make me their slave. But they are, as it appears to me, vain as they are ignoble; for this is not a question of abstract law, or one that can fairly invite that species of ungenerous hostility which I have endeavoured to describe.
Every man who merits the distinction of being a constitutional lawyer must be the willing supporter of this measure, for it is founded upon principles of which the 650 ablest of their order have been the most eloquent defenders. These principles are two, and they are the foundation of every law that claims alliance with moral justice. First, that there can be no wrong without remedy—or, what is the same thing, no right without some means of adequate vindication. Second, that there can be no punishment, however slight, which is not preceded by a verdict pronounced by the peers of the accused, under the sentence of a responsible Judge, agreeably to known and defined laws.
The cases which it is my object to meet, proceed upon a palpable violation of both these fundamental principles, and when they are stated to the House, as it is my purpose to do, it cannot fail to excite the astonishment of all who hear me, that any instances can be cited in which injury has been sustained by the contravention of these principles.
If there be one object dearer than another to the people of this country, which cannot be too highly prized or too sturdily maintained, it is, that every path of honest reward and honourable ambition should be open to the lowliest fortune. The Crown itself, for reasons of obvious policy, is placed beyond the grasp of individual ambition. All other stations, however lofty or proud, may be, and have been, attained by the successful efforts of talent and perseverance. In every condition of life laurels may be won, and a lasting reputation secured; but there is one pursuit which, of all others, is preeminently the people's patrimony—which cannot be monopolized by birth, nor obtained by servility—it is that of the law. It is a thorny path, only to be successfully trodden by original and dauntless minds, although its steps may be quickened by the influence of friendship, powerful connections, and the force of favourable circumstances. Other callings and their honours are not so hardly earned. Mitres may sit on the brows of political aristocrats, and crosiers may be wielded by men of slender sense, but an instance is not to be found in which pre-eminent success in the law has not necessarily been connected with superior pretensions. That advantage has been obtained by soft and suspicious compliances, while men of sterner and purer principles may have been unjustly overlooked, there are too many instances about us for this to be doubted. The law, then, as it must be obeyed by all, should 651 be open to all. A monopoly in this respect would be, of all monopolies, the most odious, and, when the working of it is explained, cannot be allowed to survive its exposure. And such a monopoly does exist, and against its working there is no remedy whatever. It bends to no power, it defies all authority, and is in itself an entire and perfect despotism. No Member in this House, no man out of it—however rarely gifted, however richly endowed—can of right go to the bar; indeed, these are qualifications well calculated to frustrate his purpose, for all monopoly is based in interest.
Our Inns of Court are four in number—Lincoln's Inn, the Inner Temple, the Middle Temple, and Gray's Inn. Each Inn consists of a select few—known as Benchers—a considerable and varying number of Students, as also of Barristers; and the rules of their government are pretty nearly the same in all. They call themselves voluntary societies, self-existent and independent—annulling and making laws at their pleasure, or as it suits their convenience or caprice. The portals of the law, as a profession, are exclusively in their hands. They claim and exercise the right of receiving or rejecting whom they please, and in this exercise of their pleasure they admit of no control or interference—their decision is final and without appeal. This is no longer a matter of conjecture, for this right was recently recognised in the solemn and unanimous judgment of the four Judges of the King's Bench. I allude to the case of Mr. Wooler against the Benchers of Lincoln's Inn, to which I request the attention of the House. And, to guard against all misapprehension, I refer to the case itself as it appears in the Term Reports; by which it appears, that that gentleman, after several applications at the office of the Steward, received a letter, stating, that his application for admission to the Society of Lincoln's Inn was rejected by the Treasurer and Masters of the Bench. He renewed his application, urging a statement of the grounds of this rejection, and expressing his anxiety to afford any information or evidence as to his character and conduct. To which renewed application he could only obtain a verbal answer from the Secretary, that no order had been made upon his further petition. Thus foiled in his object, and denied all explanation and redress, be addressed a petition to the Chief Justices 652 of the four Courts of Law at Westminster, praying that their Lordships, as Visitors of the Inn, would forthwith request the Masters of the Bench to certify to their Lordships their objections to his application to be admitted a student of that society, when he received the following answer from the Clerk of the Lord Chief Justice of the Court of King's Bench:—"Serjeants' Inn, April 30, 1825.—Sir;—The Chief Justice has directed me to inform you, that the Judges have no power to interfere on the present occasion." Unwilling to be defeated in a darling object, for which he had already partially qualified himself, and anxious to perfect himself by further study, he once more addressed the Benchers, imploring them to state the grounds of their objection, and to institute the most rigid scrutiny into his pretensions. To which just and reasonable application he received the following note from the Steward of the Inn:—"Sir;—Your petition, dated 13th May, 1825, was taken into consideration by the Benchers of Lincoln's Inn at a general Court, and was rejected." Have I overcharged the description of this tribunal when I call it a perfect and odious despotism?
Here, then, Sir, is the case which I put to this House. If this answer of the Lord Chief Justice be consonant with the law, and, as I shall presently show, we have the highest judicial authority for asserting that it is, will this House agree to the law remaining in this state? Will this House refuse to give the Judges that remedy which, it appears, they have not under the law as it stands, but which they must be willing and anxious to receive from any competent authority? I cannot believe that the House of Commons will refuse to step in for the correction of an admitted abuse which it falls within its peculiar province to amend, and for the amendment of which there is no other power in this State.
Mr. Wooler, in that spirit of freedom to whose manly exercise upon other occasions may be attributed this unjust and vindictive opposition to his claims, immediately applied to the Court of King's Bench for a mandamus, to compel the Benchers to admit him a member of their society, for the purpose of qualifying himself to become a Barrister. Mr. Wooler supported his application in person, and if I were now seeking the evidence of his fitness, or 653 the probable cause of his unmerited defeat, I would produce the masterly and logical speech he made upon that occasion. It was an effort which not only received the applause of all who heard it, but called forth the commendation of the Lord Chief Justice. What said the Judges upon that occasion? I am of opinion,' said the Lord Chief Justice, 'that the Court has no power to direct the required Writ, and if the Court has no power to direct the Benchers of Lincoln's Inn to admit this gentleman a member of their society, of course we cannot compel them to assign their reasons for refusing him admission; and (he added), that the Court had no authority by law to do what the applicant required.' Mr. Justice Bayley followed, and observed—'I have thought of this matter over and over again; and I have not the least degree of doubt that the Court is not competent, and has not the power to grant the Writ for which Mr. Wooler applies. This Court (he said) had no control over the admission of Members; they may, as far as I can judge, exercise an unlimited and even a capricious authority upon the subject, and yet this Court would not have any power of saying that such power shall not be exercised.' Justices Holroyd and Littledale re-echoed these opinions; the latter, in reference to the power of Judges as visitors, to which I shall have to refer in another branch of this subject, observed—'If the student be once admitted, and has afterwards acquired an inchoate right to be called, then that right may be perfected by appeal to the Judges; but, even in that case, the decision of the Judges is final, and this Court has no authority to grant a mandamus to have the party called at all events.' Here, then, I would pause, and ask the House, whether they are prepared to sanction the monstrous doctrine, that the Bar of England, with all its honours and rewards, shall be exclusively in the hands of any body of men whatever, however respectable they may be? No honest man can covet such power, for it is totally incompatible with the rights and liberties of the subject.
Having, then, I apprehend, established the point, that the Bar is virtually a monopoly, and that there is no redress whatever for him who seeks to become a student of the law and is rejected, I shall proceed to show, that the remedy which 654 this Bill contemplates is the most efficient and accords with the practice in similar cases, and ought also to be available under the circumstances which form the second part of the Bill, and the case to which it applies. What is the course pursued in these Inns towards the successful applicant to be admitted a student? He is required to produce a written testimonial from two gentlemen of the law as to his character and connections, upon which, if there be no objection, he is admitted on the books, and becomes a member of the Inn. This preliminary step may be the last. But if the object of the student is to be called to the Bar, the following is the curious discipline to which he must submit:—Unless he be a member of one of the Universities, his name must be upon the books of the Inns for five years, during any portion of which time he must keep twelve Terms, which obligation is comprehended in the dining in the Hall four times in each Term; but, before he enters upon the important process of eating his way to the Bar, he must enter into what is called the Fellowship of the Inn, which consists in the payment of 100l., and the execution of a bond by himself and two friends for the due payment of the cook's bills, for eating; and certain small fines or fees. All this being done, he becomes learned in the law, and must then apply to one of the Benchers to name him in their parliament chamber, which, if complied with, he is ushered into their presence—mutual healths are drank, and from that moment the student becomes a Barrister-at-law, and qualified to assume those awful appendages of his profession—a gown and wig, Briefs and fees may follow.
All this is well and straight-forward, but I now come to the unheard-of and tremendous powers with which these cloistered Benchers arm themselves—a power which monarchy itself cannot exercise, and which is totally opposed to every principle of common sense, or justice, or honesty, Their inquisitorial authority is co-extensive with a man's being. They exercise jurisdiction from the hour of his birth to the day that they strangle him. There is no matter, however secret, no cause, however personal or civil in its nature, into which their powers do not penetrate. They are not content to limit their jurisdiction to the conduct of their members after admission into their society, but, when it suits the purpose, either of any individual or the entire body, 655 they grasp all time and all objects. It is true, if they hesitate to call an individual to the Bar, they will give him a private hearing, although they are not bound to do it; but no charge is made, and no prosecutor appears, but the applicant is at liberty and expected to explain any circumstance, or series of circumstances, to which they may in conversation direct his attention.
I delight to dwell on facts, and as I am now denouncing the persecuting influence of this secret tribunal, so I will not deal in imaginary or illusive statements. I will confine myself to the facts of a case, without going into any of the details, with which I am peculiarly conversant.
And in order that the House may fully understand the terrific extent and effect of this power, I must earnestly solicit its attention to dates. In 1813, a Solicitor was admitted a member of one of these Inns of Court, producing at the time the requisite testimonial of his character and connections, stating upon the books of the Inn, that his object was to be called to the Bar. Thus matters stood till 1818, when the same individual applied, and was received into Fellowship, paid his money, and gave his bond to the effect I have before described, and having in all things most irreproachably observed the rules and ordinances of his Inn, applied at the expiration of his three years, or twelve terms, to the Benchers to be called to the Bar. But as a preliminary to this measure, and without which he could not be called, for such was and is the regulation of the Inn, he had applied to the Court of which he was an Attorney two whole years previously, to have his name struck off the roll of Attorneys, stating the ground of his application to be, that he purposed to be called to the Bar; and it is within my own knowledge, that the practice this person actually relinquished, and which was at the time rapidly increasing, had averaged, the two preceding years, 2,500l. Here, then, was an actual sacrifice of 5,000l. as an indispensable premium for his qualification. Now, Sir, as I observed before, though nothing could have been so gratifying to this party, by whom no boon could be so highly estimated, as the minutest and the most public investigation of all the circumstances of his singularly hard and oppressive case, yet I shall abstain from noticing them in the slightest degree, unless it shall suit the purpose of any hon. Gentleman to revert to them, in which case I shall claim the right, with the 656 kind indulgence of the House, to enter fully and at large into them. It is sufficient, for the purpose of this part of my motion, to state, that this gentleman was called upon to give a narrative and explanation of two civil actions, in one of which he had been a plaintiff, and in the other a defendant, the cause in both of which took place three years before he became a member of the Inn, eight years before he entered into Fellowship, and eleven long years before he applied to be called to the Bar, and this, too, when the objections, if such they were, were known to the Benchers when he executed his bond, and consequently, long before they knew he must apply to abandon a profitable profession as the premium of his practice in another branch of it.
Why, Sir, I should say, that if, under other circumstances, these objections had been strictly available; if the cause of them had occurred subsequent to his admission into the Fellowship of the society; if, in fact, they had been in all things just the reverse of what I know them to have been—strictly honourable and correct—yet I contend that such a course of conduct was consistent with no rule of justice, and could not have been sustained for a moment in any Court of Law. In this case the Benchers, of whom it is not my desire, on the present occasion, to speak with harshness, or now to describe the singular course they pursued, thought fit to refuse this gentleman's application. And I know it will be said, that they exercised this power with the full knowledge that they were amenable to the twelve Judges as visitors, and who assumed the right of acting, in such cases, in the nature of a domestic forum, and to that tribunal, under the sanction of two eminent counsel, one of whom is now in this House, an appeal was made, by way of petition, by the party whose case I am now stating. Waiving all grounds of objection, as before stated, I will only remark, that the character of the transaction, which bad its origin in a civil action, and was entirely a question of meum and tuum, depended upon the existence of a certain document, which was doubted or denied by the Benchers. The learned Counsel before alluded to, advised the production before the visitors of certain written and oral testimony, which established, beyond all dispute, the existence of the document, far more so than its production would have done, for the individual 657 offered to produce the person who drew the instrument, another person who copied it, two persons who witnessed it, the individual who signed it, the person who sold the stamp for it, and thirteen distinct and impartial persons who had seen it, and yet is the House prepared to hear what I am now about to state?
The hall in which these learned visitors assembled was crowded, as were all its avenues, with Barristers, Solicitors, witnesses, and friends. The short-hand writer was there also; and what were the first words pronounced by the Chief Justice, in taking his seat? "Every person in this hall, except the parties concerned, must instantly leave it, for this is not a Court of Justice!" The bare announcement of such a power as this, so destructive in its influence, and yet so entirely remediless, is sufficient to lead to its correction by this House. And who could hail this correcting interference more eagerly than the learned Judges themselves? For we must bear in mind, that the first object of our solicitude should be, not to keep this or that profession pure, but to keep our public tribunals pure—to preserve the principles of legal justice inviolate—to guard against the establishment of any jurisdiction that may be the medium of irresponsible oppression.
As I observed before, I touch not the merits of the case. If they were adverse to the party, or in his favour, public justice demands that they should be known; that, if wrong, future applicants may steer clear of similar inconveniences, and, if right, that no man may be the subject of unmerited reproach. All secrecy in matters of justice is wrong in principle, and never can work well. It may profit crime, but endangers innocence, and never can benefit it. In the case of Wooler, the twelve Judges tell us that they only decide as a domestic forum, which renders a mandamus unnecessary, indeed unattainable. This was the first time that we ever heard of such a forum in the judicial system of this country. A domestic forum! Whence had it its existence? And from whence did its authority emanate? If such a forum do exist, God forbid that any man who has the honesty to maintain his political principles should ever come before it, or should ever attempt to serve his country by efforts to curtail the vicious profits of his profession. But I deny the existence of such a tribunal. Parliament knows it not. 658 The King in council knows it not. The Constitution knows it not. What is meant by the term domestic forum? Are the twelve Judges of the land, closeted in secret, to take cognizance of the concerns of private life? And, if so, what is the nature of the transactions which their curiosity may explore, and their sensibilities denounce? We are constantly told, that Christianity is part and parcel of the law of the land. Are the high injunctions of Heaven observed by this tribunal? Is the individual who shall have been convicted of the greatest of all moral felonies, in depriving a husband of his wife, and the children of a guardian, and upon which a Jury of Englishmen have pronounced a large pecuniary penalty—would this, as a matter of course, subject the wrong-doer to his exclusion from a profession by whose profits he might repair his fortune, and by its honours redeem his reputation? Whatever are the grounds of actual or constructive exclusion, they ought to be known to the candidates of the profession, and the grounds of the charge should be traversable before the public eye, and subject to the rules of open Courts and acknowledged evidence. All else is mockery and injustice of the most odious kind. And what is the remedy? That which I submit by this Bill. This is no new or untried experiment. The writ of mandamus is a high prerogative writ, as old as Edward 2nd, and has been termed by Blackstone "the flower of the King's Bench." The universality of its application is the best proof of its confirmed utility. Speaking of it in a case in which its remedies were conceded, that able and upright lawyer, Chief Justice Pratt, observed—'it is the happiness of our Constitution, that to prevent any injustice, no man is to be excluded by the first judgment, but that, if he apprehends himself to be aggrieved, he hath another Court to which he can resort for relief. For this purpose the law furnishes him with appeals, with writs of error, and of false judgment, and lest in this particular case the parties should be remediless, it was absolutely necessary for this Court to require the University to lay the state of their proceedings before us, that, if they have erred, the party may have right done him, or, if they have acted according to the rules of law, their acts may be confirmed.' And in a subsequent stage of the proceedings, the same learned Judge pronounced 659 in favour of a peremptory mandamus, observing:—'This Court will relieve the applicant if he bath been proceeded against and degraded without being heard, which is contrary to natural justice.' If, then, it be contrary to the laws of honour and nature to deprive a scholar of his degrees, which was the subject in contest, how much stronger is the claim of a citizen when he seeks to vindicate his rights? The one case affects a whole University, the other a whole nation.
Sir, I am not singular in my impressions of this power. The late Mr. Sheridan, when he vindicated with his unrivalled eloquence, from the premeditated assault of the Benchers, the rights of gentlemen connected with the Press, denounced the proceeding as a stigma on one class of men, as highly illiberal and unjust, and as the surest way to make them disaffected to the State. He was followed by Mr. Stevens, in a speech which reflected infinite credit upon his attainments and his heart. Untouched by the ignoble pride which is too often felt by men who cringe to the accidents of fortune, he told the tale of his own success, and stated, that had the rule been applied in his case, he must have been excluded from the profession, and probably from Parliament itself. The union of so much eloquence and good feeling shamed the Benchers of Lincoln's Inn into decency, and the petitioner upon that occasion was successful. Upon his account I rejoice, but upon every other I regret it, because those distinguished men would have followed up their intimation to introduce a remedial measure, which should have protected the citizens of a free state from the caprices of irresponsible and secret tribunals, and much subsequent injustice would have been prevented. We should not then have heard of the insulting intimation that an injured party had his redress—and such a redress, too—an appeal from a Star Chamber to a High Court of Commission!—and the humble individual who now addresses you would have been spared the advocacy of a cause which, in his hands, has no chance of success beyond its intrinsic merits. The hon. Member concluded by moving for leave to bring in Bill.
The Attorney Generalsaid, I am sure the hon. member for Colchester will readily suppose, that there are numerous personal considerations which would make me unwilling to speak upon this subject; for, 660 although I am in a situation which calls upon me to consider, on the part of the Government, any proposed change in legal practice, and although I happen to be treasurer of Lincoln's Inn, to which Society he has applied so many not very liberal remarks, yet there are circumstances in my particular relations with that hon. Gentleman which would make me extremely desirous of not entering into the present inquiry. I shall not touch upon the mysterious allusions with which he concluded his speech, for I do not in the least degree affect to understand to what they may relate, but I stand upon the simple question of whether it is or is not proper to introduce the innovation proposed by the present Bill. I do not question that the writ of mandamus is highly beneficial to the people; I do not deny that there are numerous instances, in which it is necessary that it should issue; but I do question very much whether the hon. Gentleman states the law correctly when he says, that no discretion is to be invested in any body of persons whatever, and that every man is to be treated as having received a wrong, for which a remedy must be provided, if he be excluded from advantages which he may think proper to desire. In principle, a man has no more right to complain of being excluded from the advantages of a profession, the admission into which is to be attended by compliance with certain conditions, than he has to complain of being excluded from a public situation for which another individual may be considered more fit. There were parts of the hon. Gentleman's speech which might call upon me to defend the present practice from the charge, not of making the law too much of a monopoly, but of leaving it too open, for he says, that an Attorney, who is trusted so much more than the Barrister, is admitted to practise his profession without any proper inquiry, and that students are admitted into these Societies without any inquiry into their fitness, learning, or character, simply because they profess themselves willing to eat a certain number of dinners. The hon. Gentleman, however, complains not of too much laxity in the admission of students, but of such an improper exertion of power in excluding individuals as to make a new law for its restraint necessary. The hon. Gentleman also raised the question of whether it is fit that the Benchers, having once admitted a student into their society, should exercise 661 the power, controllable only by the Judges, of refusing to call him to the Bar. Taking the case in the abstract, without reference to particular individuals, I must say, it does appear to me, that there ought somewhere to be an inquiry into the fitness of gentlemen who are to be allowed to practise at the Bar. The inquiry must go to the questions of whether the party be fit to associate with gentlemen?—whether he has borne a fair reputation in the world?—whether his character and conversation have been good?—whether you have security for his conducting himself as a man of principle when intrusted with the important concerns of individuals? But I appeal to every Gentleman who hears me, to say whether you may not feel disinclined to intrust a particular person with your affairs, although you can make no specific charge against him which can be laid before a Jury? The Benchers of the different Inns have, from the earliest times, exercised the power of inquiring into the character of an individual, with a view to ascertain his fitness to be admitted to the Bar; but they have exercised it in a manner which has made it hardly possible to select three cases of complaint. I wish to avoid even the appearance of retorting on the hon. Gentleman, but when we hear of the dread the Benchers have of transcendent talent interfering with the supposed interests of their sons and nephews, and recollect the characters they bear, and under whose control they act, it is difficult for me to avoid using language which I might hereafter have cause to regret; but I will say, that these gentlemen, being at the head of their profession, and most of them advanced in years, form a very fit body in whom to vest the discretion which I maintain must be somewhere intrusted. But do not such restraints exist in admission to other professions? Is not a preliminary inquiry instituted in other cases? Every man has a right to a good education; but a college is not called upon to show cause why it will not admit a party that it does not like. Every college at the University has the right of determining whether it will, or will not, admit a student. It is this right which is exercised by the Inns of Court. A similar practice exists in the medical profession, only, perhaps, of a more strict nature. It exists, also, in the clerical profession; and if a Bishop refuses to receive a person into Holy Orders, he is 662 not called upon to state his reason for doing so. He exercises his own judgment; and if he be satisfied that the life and conversation of a party make him unfit to become a clergyman, I am not aware that any mandamus can issue to interfere with his decision. I will not enter into many of the eloquent observations of the hon. Gentleman, some of which, I think it must be evident, bear more the character of oratorical antitheses than of sound arguments; as, for instance, his position that, because all men are amenable to the law, all men should have access to its emoluments and honours. I think it reasonable, as well as merciful, to the party himself, that the Benchers should have the uncontrolled power of regulating the admission of students. A man having once been admitted a student, has the power of carrying any complaint against the Benchers before the Judges of the land, whom I do not suppose the House will think, with the hon. Gentleman, are so fearful of admitting transcendent ability to the Bar, or that they require attornies, before they are called, to cease their practice for two years, because they may be uncomfortable competitors with those in whom the Judges are interested. But does the hon. Gentleman really and seriously mean to assert, that the reason for not calling attornies at once, is their knowledge of the law? Does he not know that there is the best possible reason for the delay he speaks of? That reason is, that otherwise the profession of an Attorney would be made a stepping-stone to obtaining success at the Bar, through the medium of connexions formed with that lower order of the profession, in a manner which could not fail to be in the highest degree injurious to the character of the profession. The Judges, then, have the power of reviewing the decision of the Benchers in refusing to call a man to the Bar; and they are, no doubt, anxious, upon entering into their inquiry, as well as the Benchers themselves, to find that particular assertions with respect to an individual are untrue, and that he should be admitted to practise at the Bar. But then it is said, that if the Judges agree in the decision of the Society, great injustice is done, because the party has for five years been cherishing the hope of becoming a member of the profession in which he aspires to practise. This objection is a complete vindication of the power 663 exercised by the Judges, in refusing a man admission as a student in the first instance; and I think the hon. Gentleman admitted, in so many words, that it was an advantage to Mr. Wooler to be rejected in the first instance. It is true that, in this case, an individual has not the power of appeal to the Judges, because the domestic power they claim extends only to members of the Society; but still it must be an advantage to the individual to be told not to spend five years in vain hope, when it was intended to object to him. I say, then, in the first place, that it is fit that a power of inquiry into the character and conversation of persons claiming to be admitted students at law should exist somewhere, and that that inquiry is now intrusted to proper hands. In the second place, I say, that the control over the Benchers with respect to the calling of Barristers is efficient and perfect, as far as any thing in the power of fallible men can be perfect. But then, says the hon. Gentleman, publicity with respect to their decision is absolutely necessary. No doubt, with respect to the trial of facts, publicity is necessary, but I do not think it necessary with respect to the general effect which may be justly produced on the minds of men, independent of specific facts, capable of being subject to legal examination. The hon. Gentleman has, undoubtedly, given great point and great interest, with which I have no disposition or power to enter into rivalry, by connecting with his view of the subject the two particular cases, with the detail of which he filled so much of his speech. One was the case of Mr. Wooler, as it was brought before the Court of King's Bench, and the other the case of an individual whom he did not name; but it is probable there is no man in the House who is not aware that the circumstances he described in so affecting a manner related to the very individual who was addressing the House. I shall take the two cases he has mentioned as illustrations in favour of my argument for letting the law remain in its present state. With respect to the hon. Gentleman himself, I can assure him, that it is with reluctance I enter upon the statement of his case; and I should not have done so, had he not forced it upon me by making it a strong argument for an alteration of the law. I will, however, take the cases in the order the hon. Gentleman himself did. What was the case of Mr. 664 Wooler? It is insinuated that he was the victim of political principle, and that his great talents had made him dreaded. I can only express my perfect conviction, that the fact of Mr. Wooler being known as a strong politician, and a person of great eloquence and power, so far from being objections to his admission, would rather have weighed with the Benchers in favour of admitting him, from the dread of the very imputations made by the hon. Member. I agree with the hon. Member, that Mr. Wooler is a man of great talent, and has, I believe, borne a respectable character, but he was the author of a publication called The Black Dwarf, which was certainly charged at the time as a publication of a most inflammatory and abominable nature. I have not furnished myself with a copy of the publication, but I know that that was the feeling of a great majority of the Benchers. The hon. Gentleman says, that if there is a Bencher of Lincoln's Inn present, let him step forward and explain the cause of Mr. Wooler's rejection. I am a Bencher of Lincoln's Inn, and say, that I have no doubt that the fact of Mr. Wooler being the author of The Black Dwarf weighed with many of the Benchers, and led to his rejection. I have no personal interest in what was done upon that occasion, but everybody is aware of what was done with respect to Mr. Wooler's publication. I have no doubt that, in the ardour of youth, and under the excitement of the moment, much was done that would warrant the Benchers in saying, that the author is not a person fit to associate with the members of this Society, or to be permitted to come to the Bar. I hope it will not be thought, because this was a political publication that the Benchers have laid down any rule that the writers of all political publications are to be excluded from their society; but Mr. Wooler's was a publication that was supposed whether rightly or wrongly I will not say, for I express no opinion on the subject—to be intended to provoke the worst passions of mankind, and excite the people to acts of tumult and sedition, and very likely to promote that kind of ulterior object which was alluded to by the hon. Gentleman who moved for the repeal of the stamp duty on newspapers this evening, as contemplated by some publications of the present day—that is, by 665 no means unlikely to lead to personal violence towards the individuals against whom the observations of the writer were directed. Now, I repeat that I do not say whether this publication was of a nature to warrant such an opinion being formed of it; but I do say, from my own personal knowledge, that this opinion was most sincerely entertained by the majority of those by whom Wooler was excluded, and I firmly believe that his exclusion took place in consequence of his having been in close connexion with what they considered a most infamous and atrocious publication. For the purpose of carrying the case a little further I will add:—supposing this Bill had at that time existed; supposing there then existed a power of calling upon the Judges to issue their writ of mandamus for the purpose of compelling the Benchers to assign a reason for their refusal to admit Wooler; in the first place, I assert, without fear of contradiction, that the Benchers would have been justified, by the analogies of the law, in stating—"We have made inquiries into the fitness of Wooler, and we find notorious facts on the subject of that gentleman's conduct, which induce us to believe him an unfit person to be entered as a member of the Society." If I am not completely and entirely mistaken in my view of the doctrines of the law upon such points, that answer would have been considered perfectly satisfactory. On this point, however, I am quite confident, that if the Benchers had made a return as follows:—"Mr. Wooler is the author of The Black Dwarf, and we will show you twenty letters in that publication directly tending to the assassination of the parties alluded to." Mind, I am not asserting the fact, I am merely supposing a case—I am merely supposing that the Benchers had made such a return, and I say, if such a return had been made, the Judges would have said, "Your decision is quite right. If Wooler is the author of these letters which are denounced as containing such sentiments, you did quite right in refusing to admit him." The question, therefore, would have been placed—supposing this Bill to have been in operation at that time—precisely in the situation in which it stands at the present moment, except, indeed—and I admit this—that you would have the opinion of the Judges 666 instead of that of the Benchers. Without expressing any opinion upon the facts, I say, that, such facts would be a sufficient justification of a refusal to admit any person. Now I proceed, passing over the objection that persons should have a year before they are called upon, to another objection, on which the hon. Gentleman laid great stress. It is stated that there at present exists an authority of a most atrocious and disgraceful description, of instituting a partial inquiry. I am not sure that the word partial was used by the hon. Gentleman, but, at all events, the hon. Gentleman called it an inquisition, and he was not slow in exciting all the indignation that the most dreadful suppositions could attach to a court of inquiry which proceeds in secret and in private, without giving the party any opportunity whatever of answering the charges which are brought against him—which leaves him blind as to the nature of the charge, and dumb as to his power of replying to it. Now, if I am not mistaken as to the facts of the case referred to, which happened fourteen years ago—I think in the year 1818,—the facts are these: I am not certain of the exact date at which the case occurred, but it was at a remote period, and it is rather singular, and I think well worthy of remark, that no application was made to this House upon the subject, during the long interval to which I have referred; it is singular, because the Committee of Justice has been appointed at the commencement of every Session, and there has, I am sure, always been on the part of this House, every disposition to entertain complaints of this description. This House has ever been ready to side with any individual who appears to have been in any degree injured by the undue exercise of an arbitrary power. That is the particular characteristic of this House, and always has been; and I am sure that this feeling will be in no degree lessened when the party injured is one of its Members distinguished for talent and eloquence. The hon. Gentleman has said, that he who is unfit for the bar, is unfit to be a Member of this House. Very well; I am sure the House would have been most jealous of any one of its Members being unjustly dealt with; and I am perfectly convinced that any such inquiry would have been received with very great favour and indulgence towards the injured party. But what 667 were the particulars of that case? I will state them as far as I am able to remember them, having no idea whatever that any particular reference would be made to them on the present occasion. The hon. Gentleman has said, that however distant the period may be at which facts occur, however much the difficulty of proof may have been increased by time and accident, the party is sure to have them urged against him, and unfortunately, in some cases it is so. Now, I cannot but proceed to advert—I am bound to do so, and I can assure the House that I do it with considerable pain—to one particular case, which was brought before the Benchers of the Inner Temple, and afterwards before the Judges in Serjeants' Inn—a case in which there was no doubt—in which there was no question as to proof—and in which there was the verdict of twelve men on a subject of the greatest importance to the character of the individual concerned, that individual having taken legal proceedings for the purpose of clearing his character, for he actually brought an action for slander. I am speaking now, I believe, correctly, though possibly with an imperfect recollection of the case. My memory, however, goes to this—that there was an imputation cast upon the individual who was excluded from the Society, and who was refused to be called to the bar by the Inner Temple. He had been slandered, as he said, in early life, when in the office of an attorney, by being charged with having stolen a document from the office of another attorney. He brought his action for slander; that other attorney justified the fact upon the record, and pleaded—"the fact is true." On that issue the cause went to trial. The Jury found that the plea was supported by evidence; and, accordingly, the plaintiff, who had so courted an inquiry into his character, had a verdict pronounced against him by the Jury, who found that the plea was correct—that is to say, that he was guilty of the act of stealing the paper, and his character did, unfortunately, labour under that imputation. He was refused admission to the bar; and, I ask the House, supposing that a writ of mandamus had issued on that occasion, can any man deny that the Court of King's Bench would have held the return to be sufficient? For myself I cannot doubt it. There is another circumstance. The hon. Gentleman has referred to it as 668 a mere question of meum and tuum. Why, these mere questions of meum and tuum involve the characters of persons to a most important extent. The law of meum and tuum is the whole law of property of the country, and the conduct of the parties, as to the mere question of meum and tuum is the question, "Are you, or are you not, sir, an honest man." The case to which I refer, was brought to trial in some way or other on the subject of a contract supposed to have been made between certain individuals, and the question was, whether the attorney—he who brought this inquiry before the Judges and the Inner Temple—had or had not behaved to his client in a manner which could be considered fraudulent with respect to a purchase made by him. I do not remember enough of the case to enter into the particulars of it; but I have a general recollection that the question was, whether he was buying an estate for his client which he afterwards sold again, putting a large profit into his own pocket, or whether the client had sold it to him, and that profit was permitted to be made. The hon. Gentleman alluded to the case very obscurely, and I find it difficult to call to mind the particular details, but I believe these were the two charges. It is said, that case came on as an undefended cause. So it did: but I think a new trial was afterwards moved for, and not obtained. [Mr. Harvey: No. No new trial was moved for.] If I recollect right, a new trial was moved for. My memory of the facts, however, is uncertain. In the other case, however, if I recollect right, no new trial was moved for, and no further inquiry was instituted. Well, then, these are the unfortunate cases that were brought before the Society of the Inner Temple, and which induced that Society to say, "On the inquiry which has been made into these cases, we think that the person who has done these things, although he may be a man of the greatest talent," as he undoubtedly was, "of great eloquence, and very great public influence," which I will not attempt to deny, "still he is not, in our judgment, from various important reasons which it is unnecessary to disclose, fit to be placed in the Society to which we belong: and we being intrusted with the right of granting or refusing his admission into it, do not think we should properly exercise the discretion which is vested in us if we 669 admit that person." That person applies to the Judges, and the inquiry which takes place before them leads them to confirm this sentence; and really there is something so humiliating in being called upon to defend the Judges of the land, whether in private or in public, from imputations of the grossest and basest partiality, that I can hardly condescend, for their sakes, to enter into their defence of such charges. The Society of the Inner Temple has rejected this individual, having previously established his culpability to their own satisfaction, and having given him an opportunity of answering and entering into the whole of the charge. It is perfectly true, that before the Judges, my Lord Chancellor and myself were charged with the duty of defending that individual. We did so to the utmost of our power, and I am sure with a strong disposition to persuade ourselves that there was nothing wrong in the case, or that, at all events, it had been greatly overcharged and exaggerated, and that the party accused might become a respectable member of society. The Judges, however, entered upon that inquiry; [Mr. Harvey said, nod]—and I cannot, really if I am called upon, Counsel as I was in the case, say that they were prevented from knowing anything which would have been beneficial to the party accused, but the result of that inquiry was, to confirm the decision of the Inner Temple. Now, the only way in which that can bear as an argument on the present case is this—supposing the party had instituted an inquiry into that case, and supposing facts like these had been established in a Court of Justice, would not that have afforded such a return to a writ of mandamus as it would have been absolutely impossible for any one to question? Sir, I am quite certain, whatever the opinions of the Counsel might have been on that occasion, that they never advised an application to this House—they did not advise that which is open to every aggrieved subject on every occasion when power is abused. If there were a conspiracy—if there were really a desire to exclude for sordid purposes—if there were an unjust decision—either one or all of these matters might have been made the subject of inquiry before a Court of Justice in a variety of ways; and I am not sure that a Jury would enter into such an inquiry with any disposition in favour of the individuals who were supposed to be 670 actuated by such motives. Now, I do not know whether Wooler was or was not convicted of the libel. I believe he was not; but it was notorious that Mr. Wooler was the editor of that paper. It was supposed that the other gentleman, to whom allusion has been made, had made an attack on the Exchequer, and that that was the motive for excluding him. I will only say, that the supposition never entered my mind. I well remember the attack in question; and I remember, with great satisfaction, having been present on the occasion, and having given the best assistance in my power to it. It is the only legal Reform that I ever knew effected by public complaint, and certainly a great Reform did take place, in permitting the taxation of the Crown bills; but I cannot, for one moment, enter into the suspicion that one single member, either of the Society that excluded the individual in question, or of the Judges who afterwards confirmed that decision, was actuated, in the slightest degree, by any undue motives, or by any reference whatever to that occurrence. It is admitted that some inquiry into the character and fitness of those who desire to enter the Inns of Court, must take place, and I wish to confine this discussion as much as possible to the mere question, whether the alteration proposed by the hon. Member is desirable or not? The amendment proposed is, that a mandamus shall issue to the Treasurer of the Society, compelling him to return facts, that may be tried before a Jury, in justification of the refusal to admit an applicant to the Society. My answer is, that there may be good reasons for the exclusion of an individual, which do not consist of facts that can be tried by a Jury—that there may be good reasons, which still are not tangible, which do not admit of proof; and I think this was fully shown in the case to which allusion has been made. Then, is there any ground for this Motion? It seems to me that there is not; I submit it with the greatest deference to the House; and it is for them to consider whether they will alter a practice which has subsisted for so many years without complaints. When we speak of complaints, we speak of character; and when we speak of character, we speak of that which frequently cannot be proved by particular facts, but which may, nevertheless, operate very justly upon a decision, as connected with the 671 individual. It seems to me that, whatever may be justly said about the lax introduction of persons into these Societies, without sufficient inquiry, and however proper it might be to make the examination more strict, and the exclusion, by reason of any defect, more frequent, still, when you say to all mankind, these doors are open to you; if you wish to follow the profession of the law, enter at Lincoln's Inn, the Middle Temple, the Inner Temple, or Gray's Inn—all these Societies are ready to receive you; and if one of them has an unjust regulation, you may be sure all the others will oppose that regulation; and when there is only one qualification required, which is, that the party shall carry into that place a fair and respectable character, and shall be considered such a man as ought to associate with those who are already there, I do think that you can hardly conceive it possible for a more unobjectionable plan, or a more simple course, to be adopted with reference to these exclusions. Under these circumstances, I must say, that I do think nothing like a grievance has been made out; and this discussion, particularly the speech of the hon. member for Colchester, looks like casting reflections on the Judges of the land, from which their conduct ought to shield them. It is hardly possible to suppose any case in which so great a power has been exercised for so long a time with less objection, nor, indeed, in a manner more beneficial. There were various other topics introduced by the hon. member for Colchester, of rather a general nature, upon which I shall refrain from making any observations, because my entering into a discussion of them might lead to an inconvenient length of argument. The House will feel, I think, that these two cases, being the only ones out of a great number admitted, in which any exception has been made to the admission of an individual on account of his previous character, that no case has been made out for the proposed alteration. The hon. Gentleman has said—"You suffered me to keep my commons, and pay my fees, and it was only when I came to the bar that you found this out." Still the fact was within his own knowledge, and not in that of the Society; and, therefore, I must say that, under all the circumstances, I do not think any case has been made out for an alteration of the system, which has subsisted for so long a time, 672 which it cannot be denied has worked well, and under the operation of which the character of the bar stands deservedly high.
Mr. O'Connellsaid, that from what had fallen from the learned Gentleman, it must be evident that the House ought not to leave the law as it then existed. Such a defence, and such doctrines and opinions, he had scarcely expected from a popular lawyer, and a reforming Attorney General. It was monstrous that any man of common principles should argue that a secret tribunal should have in a free country the right of disposing of the fortunes of individuals. He knew but too well that it was usual, and had been usual, a mere matter of course, from time immemorial, for official persons to get up in that House, and wherever else they could get up, and speak eulogies upon the Judges. He would only beg to refer to history, and it would be found invariably, and without the power of any decent or honourable contradiction, that no individuals had ever deserved less of the people than the Judges, with respect to their support of liberty and of the public rights, which they were bound to protect and defend. Persons had been heard to say that there was one superstition which still pervaded the country—a superstitious veneration for the Judges of the land. This was synonymous with "the dignity of the Bench," "the purity of the ermine," and similar metaphors; but consult the page of history, and it would be found that the Judges of England had been stained with every political crime. Was not this notorious? Were not the Judges, in political cases, always the abettors of the ruling power?" Who encouraged Charles 1st to levy the infamous and oppressive impost of the ship-money? The twelve Judges. Who excited and artfully drew on the passions of the people of England with the eagerness and cunning of a wily fox on a rank scent, in the case of the Titus Oates conspiracy, but the judicial murderers; the ermined ruffians on the judgment-seat drew the dagger of the law, and basely assassinated men charged with impossible crimes. And yet the Attorney General of that day could get up, like the liberal and patriotic Attorney General of the present day, and lavish his high-flown praises on such men as these. And, after all, even coming down to the Judges of the present day, were they the supporters 673 of public liberty?—the guardians of the public happiness?—were they anxious for the general welfare? Was the present Chief Justice of the Court of King's Bench, for example, the advocate of civil and religious freedom? Had he given such support to a measure for putting an end to the system of' oppression, bribery, corruption, and perjury, which belonged to an unreformed House of Commons, that they should pronounce eulogiums upon him? Take what cases they would, go through any period of history, and they would find, that the Judges were always the first to oppose any amelioration in the existing condition of society. Members might praise them if' they pleased, but the people were beginning to open their eyes to the mischief of political Judges. Let the hon. member for Colchester persevere; he might be defeated in that House, but he would most certainly succeed hereafter, and he would obtain this—that there shall not be in free England a tribunal which sits, like the Inquisition, in darkness and secrecy, and decides like, the Inquisition, without hearing any testimony that anybody knows of, and without adhering to any fixed rule. The hon. Gentleman had not mentioned the case of Mr. Farquharson, which was brought before that House. The Benchers of Lincoln's Inn, in their wisdom, chose to establish a rule, that no man should be called to the Bar who had been a Reporter of parliamentary proceedings. Was not such a rule made? Was it not actually put in execution for a time? And was it not by the exertions of a gentleman, whose name is hailed in the annals of humanity as one of the first men that this or any other country ever produced, Mr. Stephen, that that rule was abolished? And might not any other of these men make a similar rule tomorrow, if he chose, and exclude any other class of persons for any reason he chose to assign? Now, let the House see how the law stood at present. In the case both of the Attorney and the Counsel you must take the greatest care, and you must regard with the most rigid scrutiny whoever you admit. Why, after you have admitted him, is anybody bound to employ him? There was no salary, no emolument whatever attached to a member of the profession. His only chance of reward was the confidence of the public; if he did not deserve it, he did not obtain it. Where then was the necessity of any tri- 674 bunal to stand between the public and the practitioner? He took it to be altogether unnecessary; it had not been considered necessary in America, and its necessity in this country did not seem very obvious. There were rules in this country, too, that did not apply to the sister country. For example, in Ireland a man who practised as an Attorney, and wished to enter himself at the Bar, might continue to practised as an Attorney, and keep his Terms up to the very day before he was called to the Bar. He had never known any inconvenience arise from that rule, and he knew some of the most successful men at the Bar who had done so. He saw no good reason why a man should lose 4,000l. or 5,000l., on the chance of being called to the Bar, as in the case which had been referred to. It seemed to him, therefore, that there was no necessity for this tribunal. What was done by admitting a man to the Bar?—You leave it open to the public to employ him. With respect to the case of Mr. Wooler, he was utterly ashamed at what had been said by the learned Attorney General. Mr. Wooler had been rejected in a private parlour, by a set of men who had arrogated to themselves the right to determine that to be a libel which a Jury of the country had afterwards pronounced not to be libellous. Wooler's case was monstrous, and, if that alone were not sufficient to impel every honourable man in that House to accede to the Motion, he should have no hesitation in saying, that the House had refused to do what they knew to be essentially just. Mr. Wooler had been tried for a libel, and acquitted. Was not the law of libel strong enough? Was it not vague enough to enable any Judge to convict an obnoxious individual? Was there any country in the world, possessing law, in which the law was stronger, or more conveniently uncertain? Why, one man had been tried, convicted, and punished for a libel, in calling Lord Redesdale a stout-built lawyer; and another for declaring that Lord Hardwicke was a sheep-feeder in Cambridgeshire. Nothing, anything was a libel. The libel of to-day was not the libel of to-morrow, and vice versa. "Give me a good Judge, one of those venerable and righteous men whom, according to the Attorney General, it is a disgrace to be obliged to praise—give me a proper Judge, and a selected Jury, and I will make out plenty of innuendoes in the Lord's 675 Prayer, which the learned Lord on the Bench will pronounce to be clear, indisputable, downright libels." The Benchers, in the case of Wooler, had found what a Jury had negatived, and they had passed a sentence upon him amounting to capital punishment. But for this most iniquitous proceeding, a proceeding so truly disgraceful to all who participated in it, and to all who defended it, Mr. Wooler might have been making many thousands a year, by a fair and honourable exertion of his talents. He might have been a leading man in that House, and have acquired one of the largest fortunes in the country. How had this person been deprived of the right inherent in every man, to bring forth and avail himself of the natural talents with which Providence had endowed him? Why, by a secret inquisitorial Court condemning him for that of which the laws and a Jury of his country had acquitted him—by condemning him without a trial—and yet the House of Commons, the public of England, were to be told by the learned Attorney General, that all this was perfectly proper. It was monstrous. In what quarter of the world could this have occurred, except in England? In what place in the world could such deeds be praised but in England? But ought not Mr. Wooler to have had his mandamus in order to controvert the allegations of these Benchers? Oh no; the learned Judges prevented this, and Mr. Wooler was condemned, proscribed, and shut out from the use of the gifts of nature, because a secret inquisitorial knot of Benchers chose to pronounce illegal, and punish as criminal, what the laws of the country and a Jury solemnly determined to be legal and justifiable. The hon. member for Colchester—for every body knew that the hon. Gentleman spoke of himself, and it was useless to deny the fact—had a charge made against him on the other side, which, if it were true, would certainly be conclusive against him; but surely it was but fair—it was but just—to give him an opportunity of traversing, and of letting a Jury determine whether the allegations were true or false. It was said that a Jury had already determined the question; but how stood the case? Did not public justice require, that the decision should be made more satisfactory by being put upon record? If, as in Wooler's case, the decision was unjust, so in the other it was unjust to the public, 676 for this inquiry did not admit of that investigation which would satisfy the public, or which would clearly militate against the innocence of the party, for all these things might be stated of a perfectly innocent man; and he had a right, indeed he was bound, to believe for the present, that they were, every one of them, totally untrue. He did not mean to assert that the hon. and learned Gentleman stated any thing wilfully incorrect, or that he added any thing which was not the fact, but he spoke from recollection, and he himself admitted that his remembrance of the facts was very imperfect. But the allegation, the insinuation, went abroad, and the possibility of trying the fact was taken away by the existing state of the law. It seemed to him that there was a want of principle, that some fixed rule on which to act was required. One of the worst grievances in the country was the unlimited discretion which the Judges had over the law of the land. Every thing and any thing is law, as they choose to decide it. What! should he be told that the Judges could not construe an Act of Parliament as they please? He had known Judges decide, on construing a criminal Act, that pretence and purpose were perfectly synonymous terms. Such a decision was come to by the four Judges of the Court of King's Bench in Ireland, even when the Act expressly guarded against the possibility of such a construction. To be sure, it was in a political case, where the Irish were struggling for religious liberty, and, as the Judges decided it, they deprived them of the opportunity of putting it upon the record, because, in the indictment, pretence was made use of throughout, and that which was called construction enabled the Judges to vote, that pretence was purpose, as it would enable them to vote that black was white. But was the power of the Judges confined to the construction of Acts of Parliament? Did they not sometimes repeal statutes as well as make them? What was the history of the law with respect to common recoveries for the assurance of lands? Why, the Legislature decided, that when an entail was made it should be perpetual; that was the Act of the Legislature; the Judges repealed the statute; they actually repealed it, and invented common recoveries; they invented a form which, by a mere fiction of law, took the estate from a party, giv- 677 ing him a recompense against the common crier, and thus they overruled the deliberate Act of the Legislature. He hoped, however, that we had arrived at a better state of society—that we were come to a period when the Judges would no longer have the power of enacting, repealing, and altering statutes, and when our sole business would be to carry statutes into effect. What was the case of the hon. Gentleman? This act had been committed years before, and, after a lapse of time, he was unjustly and atrociously deprived of his legal right by this secret and unjust tribunal. Although he had the honour to belong to what was called the superior profession, still he felt that there was more public confidence reposed in the Attornies than in Barristers. They had necessarily more public and private property in their hands, and they must be more scrupulously attentive to their duties. The hon. and learned Attorney General said, that there might be objections to the admission of an individual, which could not be proved, and might not be tangible. Good God! were reasonable men to decide cases involving the most important questions of character and property upon mere suspicion? Take Wooler's case for example. There was a suspicion there, so shadowy and untangible, that it could not be put into shape, and so unsubstantial and obscure tint it could not be put upon the record, even when assisted by the ingenuity of a Barrister. Was it possible to imagine any thing worse than a secret and irresponsible tribunal, with the power of acting upon suspicions—upon mere imputations—and the malignant insinuations, perhaps, of different persons. Talk of there being no motives! The legal profession was a high one, but was it more free from personal motives and personal feelings, than others? He knew that in his own country there was no son or son-in-law of a Judge, with the smallest smattering of talent, who did not make his fortune. There certainly was a vague superstition, that the relation of the Judge was a particularly lucky counsel: he did not believe it. He knew that those things would happen in the best-regulated professions; but they should not shut out an individual who, instead of walking the Hall for six or seven years, and then being looked upon as a very promising young gentleman, would come to the Bar with full-blown honours, with the knowledge 678 and confidence of the public, with a steady independence, and who would make an unwilling Judge tremble on his seat. He was perfectly sure, that if he had not been called to the Bar previous to his entering into political life, he should never have been permitted to come to the Bar at all. In 1798, when the Irish Unions were in full vigour, a gentleman at the Irish Bar refused to be examined before Lord Clare, upon oath, whether he was an United Irishman. "If I am an United Irishman," said he, "try me and hang me." He was expelled for that—he is now in poverty; and, had he not been so expelled, he would have been an ornament to his profession. He would again distinctly repeat, that he verily believed, if he had been five or six years older when he came to the Bar, he should not have been allowed to practise there. Why did he say this? He came to the Bar with ten or eleven Judges as indisposed to listen to him as possible; he struggled for five, six, or seven years, he asked for no quarter, he received none, and he took good care to give none. Having gone through this, therefore, on his own part, seeing what he had seen, and knowing what he knew, he had come to the determination of adhering to the principle, that no man's rights should be taken away capriciously—that no man's property should be disposed of without trial—that there should be no secret tribunal—no base inquisition—that every secret inquisition was base—that a British subject should have, on every occasion, the power of appealing to a fair, open, public Court of Justice, and of receiving reparation for his grievances if he were in the right, and eternal infamy if he were in the wrong.
§ Mr. John Campbell, being a Bencher of one of the Inns of Court, trusted he might be permitted to trouble the House with a few observations upon the subject under discussion. So far as the mere call to the Bar was concerned, he was not aware of any evils which could be fairly stated to exist in the present system. He differed entirely from the hon. and learned member for Kerry, who thought that there should be no regulation whatever with respect to the admission of persons to the profession of the law. He could not bring himself to think that any man, just come from gaol, or from the hulks, for example, should be at liberty to put on a wig and gown, and to follow the profession 679 of the law. On the contrary, it was indispensable for the honour of the profession, and the good of the community, that certain regulations should be established and conformed to, and that some preliminary inquiry should be made into the qualifications and character of those who wish to become Barristers. That was the case in ancient Rome, in modern France, in Scotland, and it must be so in every civilized country where there was law, and a body of lawyers. If there was to be regulation of any kind, could it be enforced in a mode less objectionable, or more fair than at present. It was, in the first place, intrusted to the Benchers, who were all men of high character, with a reputation to preserve, and who, he trusted, notwithstanding the insinuations which had been thrown out against them—and he really was sorry to hear that part of the speech of the hon. and learned member for Kerry—were above all base and sordid considerations. He was fully convinced, that they could have no motive, no wish, but to discharge their duties with fairness, justice, and impartiality. Was the profession of the law a monopoly? What had been the practice? Had not the law been open to all classes of men, even to individuals of the most humble origin? The door had been thrown open to their ready admission, and no question had been put to them, but with respect to their character and qualifications. If the Benchers misconducted themselves, if in any case their decision were wrong, there was an appeal from them to the Judges; and he would beg to ask the House, whether it was possible to conceive a tribunal to which such an appeal could be more properly given? He could not but regret that the hon. and learned member for Kerry should have thrown out imputations against the Judges, more, however, in the wantonness of his humour, than from any premeditated design. The hon. and learned Member should recollect, that the Judges had done "some good," at least; and that, in the particular case he mentioned as telling against them, namely, the disentangling of the property of the country from the embarrassing encumbrance of certain intricate and technical details, they deserved the thanks of their country. The Judges had been more liberal and more enlightened than the Houses of Lords and Commons of that day. It was to the Judges that we were indebted for the abolition of slavery in 680 England, at a time when it was permitted by law. He would also tell the hon. and learned member for Kerry, that, in England, he had never known that Judges' sons, or sons-in-law, had "particular success in Westminster Hall." He was not aware of the existence of any notion, in England, that they were more lucky in their causes than the most obscure candidates for legal honours. As far as the call to the Bar was concerned, it seemed to him that there was no grievance whatever, for there was a power of appeal to the most enlightened, the most disinterested, and the most impartial persons, to whom they could possibly apply for redress; and, if even they should misconduct themselves, there might lie, then, an appeal to the House of Lords, not, as in the case of the hon. Member, to be pursued years after the formal decision which might be complained of, but when the case was of recent occurrence. Now, if there be an appeal allowed from the Judges, that was all that could be required. The Benchers of Lincoln's Inn had a great power, which he, for one, did not wish them to enjoy. It was an arbitrary and irresponsible power, that ought not to belong to any individuals. It had been said, that the Inns of Court were merely private societies; and so they were, originally, but they had now important functions to perform. Looking to Mr. Wooler's case, he certainly could not approve of the conduct which the Society adopted in that instance; for, as it was stated by the hon. Gentleman, Mr. Wooler was not even called upon to answer the charge against him, and he had no opportunity for explanation. He knew nothing personally of that individual; he had certainly heard reasons assigned why he was not admitted; still he must say, that he thought the conduct pursued by the Society on that occasion was highly objectionable. He conceived that the charges against Mr. Wooler, whatever they were, ought to have been distinctly stated, and that he ought to have had an opportunity of ascertaining their nature; that opportunity, however, was not afforded to him. He could have wished that such a case had never occurred, and he most sincerely hoped that it would never occur again. He repeated, that he did not think the Society ought to exercise the powers it now possessed; but, at the same time, he was not disposed to make the alteration proposed by the hon. Gentleman. 681 The hon. Gentleman proposed that a mandamus from the Court of King's Bench should lie to these Societies. What would be the consequence of such a provision? Why, that instead of there being an appeal to ten or fifteen Judges, there would be an appeal to four only; and, instead of the whole matter being at once fully inquired; into, it would come on—first on one side, and then on the other; there would be a trial by Jury, and then the return must be traversed. He agreed with his hon. and learned friend, the Attorney General, that there might exist reasons for the non-admission of a man, which could not be proved, but which might yet be sufficient for his exclusion. Suppose, for instance, that a man had been tried for some heinous offence, and that, although there was not the smallest possible doubt of his being morally guilty, yet that he had been acquitted on account of a flaw in the indictment. Could it be said, that such a man would be entitled to be admitted into the profession, merely because you could not return to the writ of mandamus that he had been actually guilty of some misdemeanour? God forbid that such a course should be thought of for a moment. If such a proceeding were adopted, the legal profession would lose that high character which it had so long deserved. It would be better if the Benchers and the four Judges had the same power with respect to those who enter as students, as with regard to those who were called to the Bar; and, if such a provision were at any time proposed, it should have his support.
§ Mr. Huntobserved, that the two hon. Baronets, the members for Westminster (Sir Francis Burdett, and Sir John Cam Hobhouse), had both been sent to gaol for their crimes, and one for a libel on that House; yet they were both thought fit to be Members of Parliament, and one was actually in an office of the highest responsibility as the King's Minister. But, according to the principles of this disgraceful Star Chamber Court, they would both have been disqualified to hold briefs in the Courts of Law. If the hon. member for Colchester had been the son of a Judge, did any one suppose the Benchers or the Judges would have thrown any obstacle in the way of his admission? Let them look at the present Lord Ellenborough—had he pocketed nothing of the public money merely because he was the son of 682 a Judge? Nothing was more gross, unreasonable, and unjust, than the power which had excluded the hon. member for Colchester; and, as the hon. Bencher, the member for Stafford (Mr. J. Campbell), condemned the present system, he hoped he would have the manliness to bring in a Bill for its correction. He considered the arguments of the hon. member for Kerry to be quite unanswerable, and would give his cordial assent to the Motion. He did not expect any thing from the present House, as the Motion was opposed by his Majesty's Whig liberal Attorney General, but he was certain that justice would be done to Mr. Wooler, and the other individuals whose cases had been mentioned, by a reformed House of Commons, in which he hoped the hon. member for Colchester would again bring forward the question.
Mr. Lennardsaid, if upon this question my opinion could be swayed by authority, there is no one to whose opinion I should more readily bow than to that of my hon. friend, the Attorney General. But the question involves a point of great constitutional importance, so clearly established by the statement of the hon. member for Colchester, which has not been contradicted, that I feel myself called upon to support his Motion. From that statement it appears, that a man may be excluded from the profession of the law at the arbitrary will and discretion of a body of men deciding in private, and not subject even to the control of public opinion. It seems to me that this is a most unconstitutional power, and one which is contrary to the doctrines maintained in this country—that the road to professional honours is open, without distinction, to every one. I admit the respectability of those to whom this power is intrusted, but, in my opinion, arbitrary power should not be confided to any man, however respectable; and the case alluded to by the hon. member for Kerry, shows that this is a power which not only may be, but has been, abused. But we are told, that there is an appeal to the Judges; but be it observed, that it is not to the Judges sitting in open Court and in public, but in private. In an action for the smallest amount of property, would the public bear that the trials should be with closed doors? Yet it appears, that in a matter of far greater importance than that of mere property—namely, in a question involving a man's character and his 683 eligibility to a profession—this may be heard in private. There is, undoubtedly, great hardship in this. A man, under this system, may be grievously injured, without that means which a public trial would inevitably afford him of obtaining redress.
§ Mr. John Williamsprotested that this was a question in which he was perfectly disinterested, and in that respect he stood in a position very different from that of the hon. member for Colchester, who had brought forward this Motion. For his own part, it was a matter of perfect indifference to him, whether the precautionary measures adopted by the Benchers should be continued or not; but in his opinion, no facts had been brought forward of a character sufficiently weighty to prove the unfairness of the existing system. He would ask the hon. and learned Gentleman who had cited history for the purpose of attacking the Judges, by what improper motives they could possibly have been influenced in deciding against the claims of an individual?—or upon what grounds they should care whether that individual were in England, Ireland, or Kamschatka? Was private feeling to be taken as the ground of imperfect legislation? The hon. member for Colchester had had the advantage of stating his own case without contradiction; but he (Mr. Williams) would appeal to the Records of the last hundred years to show the extreme paucity of the instances in which complaint had been made. Were two doubtful cases occurring in the course of a century sufficient to induce the House to consent to an alteration of the law. He never was more astonished than by the statement of the hon. member for Colchester, which called for an amendment of the law of England on a declaration of supposed personal wrongs. The Society were ready to meet the hon. Member on the cases alluded to. The hon. and learned member for Kerry was pleased to say, that of the facts of the case, he knew nothing, and he would have acted more judiciously if he had suspended his judgment until he did know something of the facts. The hon. and learned Gentleman seemed to think that a judicial act was one to which obloquy and reproach must necessarily attach, and in order that he might be as unlike a Judge as possible, he considers it proper to come at once to a conclusion upon facts of which he knew nothing, and so the hon. Member proceeded to argue 684 upon the case of the hon. member for Colchester—of the particulars of which (as he himself admitted) he was utterly and entirely ignorant. Again, the hon. member for Colchester came forward with this Motion ten years after the occurrence to which it referred. If he was so impatient for an inquiry as he stated, why, in the name of wonder, had he waited until this eleventh hour? Why did he not seek for that inquiry before? If the hon. Gentleman was so anxious for an early, and a full, and prompt inquiry into the circumstances of a case, over the facts of which he had an entire dominion, how was it that he had allowed it to slumber, according to his own statement, for upwards of ten years? But the hon. Gentleman's statement was, in many respects, self-contradictory. On one occasion he chose to represent, that the facilities of being called to the Bar were too great; that to eat a dinner on Tuesday, and another on Friday, is sufficient; while, at another time, he said, "Oh! you are too severe; you do not enter into an inquiry of the talent and mental qualifications only, but you capriciously object to the character of the candidate, and that, too, without affording him a fair opportunity to meet his objectors." Such was the inconsistency of the hon. Member's statement. At one time admission to the Bar was too easy; at another the ordeal was too severe, the scrutiny unjust, and the examinations too arbitrary. These examinations had not, however, been always deemed to be unjust. Had the hon. and learned Gentleman, whose able assistance the hon. Member on this occasion enjoyed, forgotten that there was a time when the multitude of members of that part of the profession to which the hon. member for Colchester belonged, was considered to be too great? He alluded to the dark and benighted times of James 1st, when it was supposed that it was not so good a thing for the country that there should be such ready means of becoming members of that part of the profession, and a Statute was accordingly enacted, providing for, and regulating the mode of admission of practitioners in the Courts of Law? If, at that time, it was thought an evil to afford too great facilities for multiplying the members of the legal profession, he believed, if it gave proof of anything, it gave proof, not of a want of sagacity, and, want of knowledge of the 685 truth; for, to speak truly, he verily believed—and in this, he was sure, the hon. member for Preston would agree with him—that a paucity of lawyers, of either branch of the profession, was the last thing of which either this House or any part of this country would think of complaining. The hon. Gentleman had suffered his own immediate self-interest to magnify the importance of this case, far beyond what those who were without such personal feelings would assign to it. About the result of the present question he was quite indifferent. He conceived the measure proposed by the hon. Member utterly inefficient for the purpose which the hon. Member had in view. When the hon. Member alluded to a mandamus as a mode of redress, he ought to have considered whether, in fact, he was not vesting a very great power in the persons by whom the return to that mandamus would be made, and whether a return to this effect, namely, that the person applying was not a fit person to be admitted, would not be at once held a complete and satisfactory answer, and whether, therefore, it would not defeat the object which the hon. Gentleman had in view. He believed it would. If the hon. and learned member for Kerry, instead of adopting the line of censure he had pursued, had indulged them with some information about what the return to the mandamus was likely to be, he would have much better employed himself, and would have acted with much more satisfaction to the House. If, indeed, the hon. member for Colchester meant to say, that he was to have a mandamus of his own—a newly created one—that was quite another affair; but it would be at the same time a perfect novelty in the law, not to be sanctioned without very mature deliberation. The hon. and learned member for Kerry acknowledged that he had private feelings upon this subject. He was sorry to hear such an avowal; he had hoped that, although late and tardy as was the justice that had been done to the high professional merits of the hon. and learned Gentleman, yet as justice had been done, those feelings would have been banished from his mind. He had hoped—though the hon. and learned Gentleman seemed to have forgotten the fact—now that all those invidious and unjust distinctions by which he had suffered had fortunately been done away—a circumstance of which he was as sincerely glad as any man, in or 686 out of the House—and now that the hon. and learned Gentleman had assumed that station in his profession to which his abilities, and zeal, and talents, most fully entitled him—he had hoped that no latent feeling of anger would remain, such as the hon. and learned Gentleman had suffered to escape him this night, while speaking upon this ambiguous, contradicted, and doubtful case. He said contradicted case; for the hon. member for Colchester was no judge in his own cause, and was unfit to be trusted in giving a decision upon it. But he had an opportunity of fully knowing the whole facts of the case; and if any Gentleman chose to see a full detail of what took place on the occasion alluded to by the hon. Member, when all the circumstances were fully gone into before the Judges, not in a private, but in a public manner, there were documents containing such details open to their inspection, and which it would be perfectly easy for any Gentleman to peruse, although it would not be convenient to read them here. In the absence of any case—for nothing had been made out for the House to legislate upon—he could not agree to the Motion of the hon. Gentleman. If the hon. Gentleman had any particular grievance, requiring parliamentary interference, he should have sought an inquiry at a time much nearer to the transaction, and not have given judgment against himself by lapse of years, which always casts a doubt upon the justness of the complaint. He was so satisfied that there had been no ground shown for this act of special legislation, that if the hon. Gentleman called for a division, he should certainly divide against him.
§ Mr. Harvey—Sir, the only difficulty which I feel in replying to the observations which have been made in opposition to this Motion, is that arising from a sincere indisposition to consume the time of the House, upon a question which, by the conduct of two hon. Benchers, has been made directly personal. At the same time I feel, from the experience which I have had, during the five Sessions of Parliament that I have had the honour of observing the proceedings of this House, upon all questions involving personal feelings and character, that there is not a Gentleman whom I have now the honour of addressing, who will not feel an anxious desire, on his own part, to give me the same kind, attentive, and indulgent hearing, which 687 he himself would claim. I will, in the first place, express to the learned Attorney General the deep sense of gratitude which I feel towards him, for the opportunity he has afforded me (whatever may have been his views and motives in bringing those matters forward) to make this explanation. The hon. and learned Gentleman who has just addressed the House, has reiterated the statement of the learned Attorney General, that I am precluded from seeking redress on account of the distance of time that has been suffered to elapse; but, Sir, that is a most conclusive argument against themselves, and very strong in my favour. First, the hon. and learned Gentleman thinks that this question has been suffered to slumber for many years, and that it is now for the first time ushered into this House. It is true the inquiry before the Judges took place in 1822 (and not in 1818, as the learned Attorney General has presumed); but at that time I had not a seat in this House, but was returned in 1826: having had the honour of a seat in 1818, and again in 1820, but which was lost on petition. Till 1826, then, I was not in a condition to bring this matter before the House. I think there is not a Gentleman whom I am now addressing, who will not sympathise with me in reflecting how extremely difficult it is, and who will not equally participate in my feelings, in considering how repugnant it is, to make a statement in this House respecting oneself; and still more difficult and repugnant is it, to make the ground of such statement matter of complaint and crimination against the high and official personages of the land.
As soon as the present Parliament assumed its character in favour of Reform, short as it has been, I announced my intention of bringing this subject forward; and if I had attempted to bring forward anything of this description in 1826, it would have been met with an instant negative, and I should have experienced no sympathetic attention whatever. But let it not be supposed that I have been slumbering all this while. No sooner had the Commissioners of Inquiry into the State and Administration of the Law been appointed, than I took the opportunity in reply to a letter I received from those gentlemen, containing questions upon the general topics of law, to which they requested answers, to solicit their atten- 688 tion to the practice in cases similar to the one now before the House. I implored them to institute an immediate investigation into the subject; and as the hon. and learned Gentleman is fond of referring to documents (and let him produce all he has, I am prepared to meet them), I also can produce a copy of this letter, and the answer which I received from their Secretary. In that answer he stated, that the Commissioners did not consider, that the subject to which I had called their attention came within the scope and purpose of their appointment. Failing in this, I have since brought the matter before three successive Administrations; and in one case was attended to with great courtesy by a Gentleman to whom we are in the habit of referring with great admiration for his talents and statesmanlike views. I have an official letter informing me, that the Attorney General should be requested to inquire into the case; he was so requested, but the answer was, that there was no remedy—that, whatever was the effect of the proceedings on the part of the Benchers, the case was without a remedy. If it were not for the pointed and ungenerous manner in which the learned Attorney General has stated this case, I should have been content to rely upon the circumstances attending my return to this House, for an answer to the charge brought against me. What am I; and what place do I Represent? I have not run down to Cornwall, and obtained my return for some rotten borough previously purchased for 3,000l. or 4,000l. in sterling cash; neither have I sufficient property in any borough or county to command the willing votes of my submissive tenantry. I have not a single acre of ground in the place whence I come. I was born within ten miles of that town; I was articled in that town; there is not an individual of the whole population with whom I have not associated; it is through them and their affectionate kindness—amid the horrid persecutions to which I have been exposed, and in the full knowledge of all the base imputations that have been cast upon me—that I have been returned to this House, and that, too, in defiance of the great exertions, extensive influence, and enormous wealth, of the chairman of the East-India Company, who brought down 200 voters from this emporium of corruption to oppose me. I have been returned five successive times 689 by these men. Why, Sir, may I not call these five verdicts? Is not this a ground on which I may well rest my case, and challenge my accusers? I, a person born in a lowly station—never courting nor admiring wealth or title for its own sake—for I had not attained the art of eulogizing men in power, nor learnt the witching craft of honied speech—but standing entirely upon the interests of the order to which I belonged, and my own character, obtained the suffrages of the independent Burgesses of Colchester. And what was the course I pursued in 1826, after having received this most unmerited rejection from the Benchers? Did I appeal to my constituents at the election, on that occasion, upon political grounds only? No, Sir, I appealed to their sense of justice? I asked them to return or reject me, as they approved of or despised the persecution to which I had been exposed. Upon that ground, and that alone, I rested my claim to their support, and they triumphantly returned me as their Representatives in this House.
Let this Parliament be dissolved tomorrow, and I will go again to my constituents—to my newly-created constituents—and will stand before them for their support, resting my claim upon the motion of this night. But, Sir, I will go further. The learned Attorney General has said, that he was my counsel:—he is now my enemy. Who was his colleague upon that occasion? Lord Brougham. That great man had not been on the Woolsack twenty-four hours before he sent to me, saying, that he wished to see me in another place. And what was it to say? Was it to taunt me that I was not fit society for gentlemen, or did he deal in those insinuations in which the learned Attorney General has indulged? No, Sir, but it was to tell me that he intended to revive the Charities Commission, and to place himself at the head of it, and to make me the Secretary. When I have this testimony to appeal to, in justification of my character, and in vindication of my honour, might I not say to my persecutors, "Here is the testimony of a man whose greatness you may envy, but can never equal, voluntarily offered to my humble pretensions to character, and to talent, and I shall proudly rest upon that?" But, Sir, I shall not do so. The hon. and learned Gentleman has said, that there were two cases in which I was 690 concerned—he professed, indeed, not to be very accurate in his recollection as to the particular circumstances—but he is perfectly correct in the statement, that there were two such cases in which I was materially interested.
But, before I notice those cases, I will just advert to a remark which was made by the hon. and learned Gentleman who last addressed the House. He tells me, that I have precluded myself by lapse of time. Why, Sir, if I were arguing this question with the technical subtlety of a lawyer, and not upon the moral justice of the case—and I have heard that hon. and learned Gentleman advocate both sides of a question in this House—I should say the Benchers had precluded themselves by time; because when were these two cases tried?—(I am not now speaking of their merits; into them I shall enter presently). Why, in the year 1810. When did I apply to be admitted? In 1813, with the full knowledge of every fact, whatever may be their merit or demerit, possessed by more than one eminent Bencher, who went the circuit on which, and at the time when, those trials took place. Did they admit me instantly? No. First, I was required to produce a certificate, signed by two gentlemen at the Bar, as to my character; this I very easily obtained; then was the moment to object to my admission; why did they not then bring forward these cases against me? When, again, in 1818, I gave them my bond, and deposited my 100l., why did they not enter their caveat against my entering into fellowship, and say to their Treasurer, "When, that person comes here, we have something to say to him: here is an explanation which he must give, and, unless satisfactorily given, he cannot be admitted a member." Did they do this? No; they deliberately took my money—they deliberately took my bond; and as has been said by the hon. member for Preston, who often says things with great truth and acuteness, we dined together for three years, in the same room, and in the presence of each other, with the most perfect harmony.
Having exerted myself in this House, and out of it, to reduce the enormous fees paid to counsel upon Crown Prosecutions in the Court of Exchequer, and having done so successfully, I could scarcely be a perfect stranger, while sitting among those gentlemen; and yet, knowing me 691 and seeing me, not a word of objection was expressed by them; nor was it until I had perfected my title, and had abandoned a lucrative profession, that these protectors of professional morals felt it to be their duty, as they chose to state it, to call upon me to explain the circumstances connected with those two civil actions, in which I had so many years before been concerned. And here allow me, Sir, to state a particular circumstance, which the learned Attorney General appears to have entirely overlooked. During the whole of his illiberal and accusatory statement he was speaking of an Attorney—a person who is peculiarly amenable to the Courts of Law. There is not a transaction affecting his character, which may not be brought forward in the Courts of Law of which he is a member, and which he is not liable to be called upon to explain; and if a satisfactory explanation is not given to the superior Judges, they have the power, and would no doubt exercise it, of erasing his name from the rolls of the Court. Whence, allow me to ask, was it, that these cases were never made the subject of investigation in those Courts? Does not the learned Attorney General know—can he be ignorant of so material a fact—that if a man be unfit to be a barrister, he is equally unfit to be an Attorney? The responsibility of the one is not to be compared to the responsibility of the other. A Barrister is altogether before the public eye, and it is comparatively unimportant what may affect his own private conduct. Not so the Attorney to whom are intrusted the most important secrets and concerns of individuals, and it is his private character alone on which they confide. Now, Sir, I applied since those proceedings in 1822, to the Court of King's Bench to be re-admitted; and I have been re-admitted by that Court, without one single objection being made against me; my name having according to custom, been publicly exhibited in Westminster Hall, for the purpose of inviting objections from all the world, during an entire term. The same Judges who had negatived my admission to the Bar, were the parties who decided upon re-admitting me as an Attorney to practise in their Courts. Where were these Benchers—these guardians of the moral character of the profession? Why did they not bring these cases forward? Why were not those documents, to which 692 the hon. and learned Gentleman appears to take so much pleasure in referring, produced? I will tell the learned Attorney General why:—because they could not have done it without having called upon me and my witnesses to answer upon oath the charge which those documents would have been produced to sustain, and they knew well, that when the facts were so challenged they could not be successful; and that I should have been able to expose the spirit from which the persecution proceeded.
It is said, that there was nothing political connected with this subject. I could relate an anecdote which distinctly proves that it was nothing less than a personal and a party proceeding throughout. When I had perfected my title, I came down to this House, not being a Member of this House at that time—and asked a gentleman, a Bencher, whether he would move for my admission, and he instantly stated, that he would with great pleasure do it; and he requested me to go to another Bencher, the treasurer of the Inn, to know if he would second the Motion. Now, I had never spoken to that gentleman before; but he very readily assented, and desired his compliments to the other gentleman, and he would second the Motion. Now, what was it, that was whispered to me by this gentleman when I was about to leave him? He said, "I may tell you that that gentleman you are going to is a sound Whig." Thus then I was tried by a Jury of Whigs and Tories, instead of by men acting the character which they nevertheless assumed, of impartial judges of the moral and mental fitness of persons seeking to become members of the profession. Sir, the plain fact was, that there were eleven persons present, four of whom were for and seven against my call; and one of these protested, in writing, solemnly against the decision, while another came out, with tears in his eyes, declaring, that he could not bear to witness what was going on in that place. Why, Sir, the whole was notoriously a political party proceeding—a closeted and cloistered inquisition, sitting without responsibility, and exercising, without remorse, a dispensing power over the happiness, the character, and the fortunes of an individual. I received an intimation from the officer of the Inn, saying I was required to explain two matters—one in which I had been plaintiff, and one in which I 693 was defendant. These transactions took place in 1810, and the cause of action, in both cases, arose before I was even a student. But I scorn to take an objection on that ground. I am speaking here upon the moral justice of the thing; and I do not hesitate to say, that I will now agree to appoint a list of thirteen gentlemen, Members of this House consisting of every party, to whom all these documents shall be referred; and provided their investigation shall be public, I will most willingly abide by it. I have stated this before; I repeat the challenge; I desire it; the intention of my introducing this Bill is to enable me to do so; and I can tell the learned Attorney General, that no sooner shall this Bill be passed, than I will enter the Court of King's Bench, and demand the benefit of it, so that I may have the opportunity of traversing these objections.
The learned Attorney General has been pleased, with exemplary delicacy, to allege, that in this case, I was accused of having "a paper stolen," and that upon bringing my action of slander against my accuser, the Jury by their verdict affirmed the truth of the charge. Now, Sir, most true it is, that I failed in the action I brought against my despicable calumniator. But did the learned Attorney General never fail in any action for sedition, or slander, or treason, that he may have advised, and in support of which he brought his best efforts and talents and legal ingenuity to bear? And will he be content to have his competency for his office, or the honesty of his motives, determined by that same rule of success in a Court of Law, which he has thought fit to apply to me? If so the learned Gentleman proclaims himself no longer fit for his situation, for the most signal failure has attended his exertions to obtain a verdict, even where he, in unison with the common expectation upon the subject felt most secure of one. This is no more than has happened to his predecessors over and over again. A British Court of Law, as every experienced practitioner will tell you, is not an infallible court of truth. It is a court of evidence, a court of legal subtleties, and forensic ingenuity, where the best advocate and most skilful tactician carries the day, and too often triumphs over right and justice. Let not this be viewed as the partial and over-wrought statement of a wounded spirit 694 smarting under the infliction of a just sentence. If I wanted a witness to testify the scrupulous fidelity of the picture I have drawn, I should put the hon. and learned Attorney General, who, for reasons best known to himself has become my accuser in this House, into the witness box. When that learned functionary, on his defence the other night against a charge of misprision treason and connivance at sedition and slander against the highest personages in the realm, one of the King's Judges and other eminent individuals being his accusers, what was his answer? Was it not in substance this: "True it is, that treasonable incitements are put forth in the Press, true it is, that sedition ranges uncontrolled throughout the land; it stares you in the face at the corner of every street, it is spouted from every platform and threatens to break down every barrier of law and order if not checked; and true it is, that the most atrocious and unmanly slander is daily and hourly vented against those exalted personages whom it is my especial duty to protect against such assaults—but where is the remedy? The Courts of Law offer none. Nothing is more uncertain than a verdict in cases of slander, nor is there any responsibility, that falls upon a counsel heavier than advising his client in such cases, for it never can be foreseen, that he may not bring his client out of court worse than he took him in." This, Sir, was the language of the first law officer of the Crown, this his defence before this House and the country, and this his excuse to his royal clients for leaving them exposed to the torrent of calumny with which they have been beset. Sir, I claim in behalf of my character, the same benefit of this defect in the tribunal, of this uncertainty in the law, which my learned accuser, the Attorney General, claims for himself, in not proceeding at law against the slanderers of his clients. If where the slander and its atrocity are so notorious, and thousands are ready to attest its existence and its falsehood, the learned gentleman feels dubious of a verdict, of what illogical absurdity, to say the least of it, does he convict himself when he affirms, that because I brought an action for slander and failed in getting a verdict, therefore, the slander of which I complained was no slander, but was truth. If the reasoning be good, it will apply to every case as well as to mine, and if the 695 learned Attorney General will consent to its being applied to the case of his royal clients, he will indeed convict himself of little short of that crime against the Crown, of which he has been accused by one of the King's Judges. I can assure the House, that I deeply regret the necessity which has arisen for my trespassing upon its time; but I trust, that the same kind and marked indulgence which has attended my explanation up to the present point, will accompany me still further into a brief statement of the peculiar circumstances of the case of Harvey versus Andrew, to which the hon. and learned Gentleman has, in no friendly spirit, referred. I ought to premise, that the circumstances out of which this action arose took place in the year 1808, four-and-twenty years ago. The action itself was tried in 1810, and so far from the issue of that trial having had an adverse effect upon my fortunes by the injury of my character, which it must have had, if the verdict had been interpreted as the Attorney General seems to have had a desire to interpret it, so far from that being the case, my business as an Attorney daily and rapidly increased, my very enemies came to me and intrusted their property and their characters to my guardianship. I have been five times returned to Parliament by the unbought suffrages of the freemen of Colchester, who have known every act of my life, and weighed and sifted every accusation against my honour. I now earnestly entreat, I implore, as a personal favour to myself, the attention of hon. Members to a narrative of facts, which, although unprepared, I have no doubt, I shall be able to make intelligible as to the real merits of this case, to all who will do me the favour to listen to me.
In the year 1808, at which time I was in full practice as an Attorney at Kelvedon, in Essex, with an office also at Coggeshall, three miles distant, I became concerned for a poor man, a carpenter, of the name of Shelley. The dispute in which he was involved was a family dispute, his mother-in-law being the party opposed to him, and in behalf of whose interests a rival Attorney at Coggeshall, of the name of Andrew, had actually brought an action against the son. The cause of action arose out of a bond for 100l., which the father of Shelley had given to a person named Rudkin, as trustee of his (Shelley's) wife, the mother-in-law of my 696 client, making the bond payable six months after his decease, together with an annuity of 5l. for her life. Shelley the father, dying intestate, his freehold property descended to his son. His widow possessed herself of his personal property. In this state of things the trustee, Rudkin, applied to my client for payment of the bond, as also the annuity. My client professed his readiness to pay, but required that the personal property of his father should be duly admitted and set off against the demand, and in this he was justified, for, by frequent decisions, the personal property is held first liable to payment of obligations of this sort. Here was a question which was thought fit for litigation and costs, and accordingly Mr. Andrew recommended a law suit between mother and son, which was actually commenced. It was then that Shelley came to me to defend him. What was the course I took? One for which, instead of being scandalized and censured, I think myself entitled to the applause of every reflecting and honest mind, and to which I shall ever revert with feelings of pride and satisfaction. I regarded this poor man and his maternal relative, about to be hurried into a vexatious and expensive litigation, in which the law and its myrmidons were sure to gain, with the almost certainty of reducing both its victims, the gainer as well as the loser of the suit, to the condition of inmates of the parish workhouse. I went to the opposing Attorney, urged upon him the scandal of such an action, and finally brought him to terms in all respects highly favourable to my client. I cannot proceed to state what these terms were without apologising to the House for the minuteness of the detail into which I feel myself forced to enter. The House, I am sure, will bear in mind, that this explanation is forced upon me by the revival of a calumny four-and-twenty years old, which never did make any serious impression on the minds of those, who, from their propinquity to the scene of action, and knowledge of the characters of all parties concerned, made them the most competent judges, and which even my bitterest political enemies, in all the licentiousness of party and political rancour, much to their credit be it said, have never ventured to advance. I am on my defence, and the House, with its accustomed liberality will continue to, me a little longer that considerate indul- 697 gence of which I have already received so ample and unexpected a portion. The terms, then, which I obtained for my client were these—that his mother should account for all money possessed by her as administratrix of her husband, that the amount should be deducted from the claim of 100l. which she had against my client, and that the value of the annuity of 5l. should be ascertained by the tables of Dr. Price, and paid by the son—and that he should have six months from the date of the agreement to pay whatever should appear to be due—and further, that he should pay 5l. only for costs. Here was an arrangement highly beneficial to my client, first in respect of the time I gained him for payment, next in the set off of the personal effects of the deceased, next in setting him free from future actions and costs for non-payment of the annuity, and finally, in limiting the law expenses, which might have been hundreds, to 5l. This agreement was reduced to writing, and signed by the respective Attornies, and a copy given to each. The House already begins to marvel what robbery I could have committed in this pauper cause. Their ingenuity is no doubt sorely perplexed to know what paper, what valuable document or deed it was, that I subsequently abstracted from the office of my opponent—above all, whom it was that I thought it worth while to rob in this affair. Was it the aged widow that I despoiled of her mite? Was it the bond that I purloined in a paroxysm of professional zeal for my client, with the pious view of enriching the son with the legacy bequeathed by one of his parents for the sustenance of the other in her old age and widowhood? Neither. The absurdity of which I was accused was the robbery of my own client—not of his money—but of the paper containing the beneficial terms I have just detailed to the House. What conceivable motive, not the offspring of confirmed insanity, could lead to such an act, it would, I think, puzzle the keenest intellect ever busied in the perversion of truth to assign. It may also be asked, what conceivable motive could originate a charge so wicked, having so little plausibility to sustain it? Whether it originated in brutal stupidity, or still more brutal malice in the first instance, it matters little to inquire. If deliberate malice was the foundation of it, there would be no difficulty in accounting for a perti- 698 nacious adherence to the falsehood. If it was the mistake of a mind brutally stupid, subsequent discovery of error would not lead to an avowal of the truth, and a legal investigation once commenced, with the penalties of defamation as the consequence, obstinate perseverance in the calumny would appear to such a mind as the only course that could with safety be pursued. But, perhaps, it may be thought, that I saw reason to change my opinion as to the eligibility of the terms I had originally agreed to for my client. The facts will show that it was just the reverse; and that it was consistent with what Mr. Andrew thought were the interests of his client, to evade this agreement, which he ultimately succeeded in doing, I have already stated, that a copy of the agreement was in the possession of both parties, that is, of Mr. Andrew and myself. On an appointed day, I called at the office of this man, for the purpose of carrying this agreement into execution, having brought my client, Edward Shelley, into the town to do what was requisite on his part. I found Mr. Andrew, however, unwilling to abide by the terms of the agreement. He set up a new claim on the part of the widow to dower, complaining that I had dextrously worded the agreement so as to exclude his client from her right in that respect. I insisted, as in duty to my client I was bound to do, upon holding him to the letter of the agreement, and in reliance upon which as a final settlement my client had made his arrangements, and was then actually prepared and waiting to carry them into effect. Yet Mr. Andrew insisted on his part that the agreement was not binding in law. I told him that written undertakings between professional men on behalf of their clients were honourable engagements, from which no man with any regard to character would dream of departing, and moreover, that the agreement signed by him I should enforce, if necessary, by application to the Court of King's Bench. High words ensued, and I left the office threatening to move the Court of King's Bench on the subject. Out of this meeting arose the extraordinary charge of Mr. Andrew. With every motive, and an expressed determination not to abide by the agreement, and with a determination as strongly expressed on my part to force him to the strict execution of it, he thought fit to declare that I had purloined that paper 699 from his office at the meeting, the particulars of which I have just related. Insanity alone could have dictated such an act on my part; the charge was something like accusing a man of robbing himself. That Andrew may have missed or mislaid the paper is possible—that he may have supposed that I had folded it up with my own papers by mistake is possible—but that any sane or reflecting mind should seriously imagine that I had designedly taken it, or had any interest in retaining it, if I unconsciously folded it up with my own papers, I declare to be impossible; for, to myself it was not worth the tithe of a farthing—it did not hind me or my client to anything—the bond was the operative instrument against us, and this agreement was to reduce and limit the effect of that bond, I have already shown. So, however, it was. Mr. Andrew was a man of an envious turn of mind. He was considerably my senior, and could ill brook to see a stripling, just out of his articles, carrying away all the business of the neighbourhood. Elated by success, and with all the ardour of youth, I did not, perhaps, bear my honours with the most exemplary meekness; and Mr. Andrew and myself seldom met without some display of warmth on one side or the other. Having circulated the slander, the indignation of my friends brought them about me, clamorously demanding that I should seek redress in a Court of Law. For my own part, I always thought, that the absurdity of the charge weighed down its iniquity. I had treated the accusation as a piece of passing insolence, characteristic of the man, and had even told my accuser, in presence of witnesses, that if he really had lost his agreement, he should have a copy of mine whenever he thought fit to ask for it in the language of a gentleman. But rumour, with its usual exaggeration, soon put it about that I had taken a valuable document from the office of an Attorney. According to some it was title deeds to property; according to others, a piece of testimony all important to my adversary in a cause in which we were engaged; according to others, it was a bond for money; and some, I believe, actually imagined it was a bag of gold I had laid my hands upon. Under these circumstances, I complied with the wishes of my friends, and brought an action for slander against my accuser Andrew. This was an injudicious step. I ought to have 700 known that, having circulated the slander, he would find means to support it when he saw the severe penalties of the law staring him in the face as the consequence of his temerity. I ought also to have reflected, that, being an officer of the Court of King's Bench, all such acts as that imputed to me are justly cognizable by the Judges upon affidavit, and that an invitation to my adversary to carry his complaint there, where, if he failed, he would be struck off the Roll of Attornies, would have been a sufficient refutation of his slander, and a sufficient vindication of my character. I brought an action against him for slander, however, and at the same time moved the Court of King's Bench to restrain him from proceeding in the action which he had commenced against my client upon the bond, and to hold him to the terms of the agreement. In my application I swore that I believed the agreement which I was charged with taking from his office, "was in the custody, possession or power of the said Thomas Andrew," at the same time producing my own counterpart. He did not venture to insinuate in his affidavit that I had got the agreement, neither did he swear that he had not got it himself, although this was a fair challenge for him to do so. He disputed the validity of the agreement as an instrument binding in law, and the argument of his counsel prevailed, for Mr. Justice Richardson decided, that it was an equitable contract, and could not be enforced in a Court of Law. I then urged a reference upon him of the matters in dispute between my client and his mother-in-law. It was agreed to, and the award was in favour of my client, upon the terms of the agreement, the "equitable contract." All this was expensive, but not enough for Mr. Andrew. He evaded the award. The reference not having been made a rule of Court, was not enforceable in law. In spite of all I could do, my unfortunate client was ultimately dragged into a Court of Law—the costs, instead of being 5l., to which I had limited them by the agreement, mounted up to a sum nearly equal to the verdict, and were mercilessly exacted from one or both of these helpless parties. Having traced this cause to its issue, in which it will be seen that all my exertions had but the one tendency, viz., to enforce the agreement I had originally drawn up, and that all the efforts of my opponent were di- 701 rected to defeat that object, and evade his agreement, I will now return to my own action for slander against this man, Andrew. Pending my application to the Court of King's Bench to compel Andrew to abide by the agreement, the Assizes at Chelmsford came on, and my action was ripe for trial. Upon the advice of my counsel, who considered that we ought to have the advantage of Mr. Andrew's affidavit, in answer to mine in the Court of King's Bench, in which affidavit we were persuaded, as it turned out, he would not dare to swear that he believed I had taken the paper in question from his office—agreeably to this advice the trial was postponed. It is material that I should mention this circumstance, and that the House should bear it in mind, for it will be seen afterwards that this important testimony, for the sake of which the trial was postponed, was not permitted to be used on the trial. The trial at length came on. Mr. Garrow, whose ability and powerful eloquence need no eulogium of mine to make them known and appreciated, did his best to defeat me, and save his client Andrew. He adverted to my political character, my readiness to come forward upon any platform (I had lately been struggling with the power of corruption, and stirring up the men of Essex to a sense of their rights), and he then with all his tremendous power of misleading the minds of a Jury, fell foul of the postponement of the trial, as evidence of a shrinking incompatible with a nice sense of honour, and accountable only by the supposition of conscious guilt.
The defendant had put a plea of justification upon the record. The consequence of not sustaining such a plea, I need no tell the House, is considerably to aggravate the offence and increase the damages. The defendant then had to support his plea at all hazards; his fortune depended upon it. He put his brother, John Andrew, into the box for this purpose. I had no answer to make to his testimony—I had no witness—it is not in the power of human evidence to prove a negative. I had, to be sure, the important negative testimony of the defendant himself, whose affidavit in the Court of King's Bench, in which was the omission, so pregnant with inference, to swear that he had not got the paper. The defendant, it must be observed knew that the trial had been postponed expressly to give him an opportunity of 702 contradicting; me upon affidavit, if he dared; for the opinion of my counsel, adverting to the motion in the Court of King's Bench, was inserted in all the county newspapers. This striking omission, therefore, after such a challenge, was all-conclusive. There was also my own affidavit. Both these were in Court upon the trial, and the proper officers of the Court of King's Bench were also present to prove their having been filed; but they were deemed by the Court to be inadmissible by the rules of evidence—rules, by the way, which, however good for the general guidance of suits, will occasionally work partial wrong. I was then bereft of all evidence in answer to John Andrew. The case was left to the Jury, who had to determine between evidence and probability. They found their verdict for the defendant.
Whether they thought the testimony of John Andrew, who, be it observed, gave very loose evidence, of sufficient weight or importance to carry the verdict—whether they thought my proof of the slander fell short—whether, having a doubt upon the evidence, they resolved to give the benefit of it to the defendant, or whether they were carried away by the captivating sarcasm of Mr. Garrow—whether any or all of these reasons combined to produce the verdict it would not become me to inquire. I did not, of course, acquiesce in the judgment of that verdict, and in the outset thought of nothing but applying to the Court for a new trial, for which, however, upon conference with my counsel, it did not appear there was any sufficient legal ground. Reflection also came to my aid. I found that the result of this trial had worked me no prejudice. My friends were kinder and warmer in their friendship than before; my business, instead of falling off, increased; fresh clients came to me merely to testify their disbelief of the ridiculous calumny for which I had in vain endeavoured to gain redress in a Court of Law. My neighbours, who knew the characters of my opponents, gave me renewed assurances of their regard and respect. I had had enough of this Andrew and his brother. A Court of Law appeared to me in the light of a lottery, in which there were nearly as many blanks as prizes for those who sought justice, and I must candidly confess, that I did not then imagine that this case would have been made a stalking-horse to 703 my political enemies years and years after its occurrence.
For these reasons, having my business to attend to, and politics, with the distant prospect of a seat in this House, just then rising in the ascendant to dazzle and engage my youthful mind in the pursuit of higher objects—feeling that I had suffered no damage, although I had been unable to punish my calumniator—I determined not to involve myself in any further litigation for an object which, as far as my character was concerned, seemed fully attained. One gratifying circumstance I may be permitted to mention, as tending to mark the sense of my neighbours upon the whole of these transactions, and the total absence of any stigma being supposed to rest upon my character, that within a very few months from the date of this trial, I was honoured with a requisition from Colchester, for the first time, to offer myself as a candidate for the Representation of that important and independent town. With this requisition I complied, and the result will show how strong was the feeling. I gained twice as many plumpers as both my opponents, one of whom was the son of Mr. Hart Davis, and the other the Chairman of the East-India Company, who had for five-and-twenty years represented the town, and who only succeeded by an expenditure of nearly 40,000l. in defeating the general interest in my favour by a small majority of thirty-three upon a total poll of 14,006.
I cannot persuade myself that a candid review of these circumstances, authenticated by documents which it would be in my power to bring forward, will not satisfy any unprejudiced mind that I have, from the first to the last, been the victim of the vilest and most improbable slander, with reference to this case. Nor is it within the compass of the wit of man to reason me out of a conviction, which I shall carry with me to the grave, that had I not been a politician as well as successful Attorney, independent in my principles, belonging to neither party, and therefore the common prey of both—the sworn foe of corruption, whom we have at length beaten down under our feet, and always the bold, undaunted, and uncompromising enemy of the enemies of my country, whatever form or name assuming—I say, Sir, without pointing to this person or to that, or to one body of men or another, to the component parts of a Court of Law, or 704 the members of the secret and irresponsible "domestic forum," to which I have alluded, that no powers of persuasion will ever root from my mind the conviction that I have not had that fair dealing which a man who had not engendered so many political hostilities, would in the usual course of things have obtained. Indeed, I cannot doubt that, had I thrown myself into the "nomination" market of politics, and become the favoured nominee of some powerful lord of the extinguished boroughs, or had I chosen to make an alliance with some suspicious remnant of aristocratic gentility, I should not have wanted for friends and advocates in high places to protect my character from aspersion, and to have discovered in my humble abilities pretensions to a liberal share of those spoils of the state which have too long provided for the sons of corruption. Choice led me to avoid the one, and principle to disdain the other. But it seems I am not only to encounter the open hostility of open foes, but I am also to be treated with the perfidy of professed friends, with whom I have gone hand in hand in a work of great public service, whom I have sustained with equal zeal in opposition as in office, and for whom in all fidelity, and at their own urgent solicitation, and especially at the last general election, as is well known in influential quarters, I made great and painful sacrifices.
I have now to trouble the House with a brief exposition of the circumstances of the other case to which the learned Attorney General has referred. And in order to obviate any prejudice which might arise from the bare fact of there being two cases to explain, a prejudice which an artful enemy would not fail to stimulate, and which I admit might be conscientiously entertained by well-meaning minds, I will beg of hon. Members to do me the favour to transport their imaginations to the scene of action and the circumstances of my position.
In the year 1809, when the cause of this second action accrued, I had been but two years established in practice as a Solicitor. I was extensively known in the county, and had a reputation perhaps, far beyond my humble merits. Business had come in upon me with a flood-tide. I had six clerks in constant employment, and my own time was unceasingly occupied in advising clients, bringing or defending 705 actions, preparing for trial, with suits of every variety and in every stage of litigation. Independently of this, I was dabbling in politics, and, as I had entered the field single-handed against two powerful factions, it was all up-hill work, and brought with it a world of troubles in addition to my professional cares. The wonder then will appear, not that I was engaged in personal litigation at the instigation of vigilant enemies and envious rivals, but that I was not plaintiff or defendant in more actions than can be alleged against me. It is really distressing egotism to be called upon thus to speak of oneself. But I can assure the House, that to get a "slap at Harvey" in those days, who, on his part, was at all in the ring, without waiting for invitation to combat, was thought by the generality of folks, as fair sport as hunting the fox or the hare, whilst, undoubtedly, there were not wanting those who mingled feelings of a deeper character with the opportunity of successfully persecuting me. I trust, therefore, that no preliminary prejudice will operate against an impartial hearing of what I have to allege in answer to this second charge. It originated in the same quarter, the action being brought by the same Mr. Andrew, of Coggeshall, to whom I have already drawn your attention. The facts lie in a nutshell. In the year 1809, I was in the habit, mostly in conjunction with my father, who was then possessed of ample pecuniary means, of purchasing estates and selling them at a profit. This is perfectly notorious in the county of Essex, and I do not know that I can offer any other proof of the fact, unless I were permitted to bring witnesses to the Bar of this House, or before any other tribunal, to testify to the truth of my having so purchased from them upon speculation. I was not a land-agent or auctioneer, to sell other men's land on commission, nor is such an employment any part of the business of an Attorney. But as a man of ample resources, and of a speculative turn, I bought estates outright at such prices as I thought would enable me to gain upon the subsequent sale, sometimes borrowing the capital of my father and going shares with him, and sometimes using my own, as convenience might dictate; and this was so notorious, that nothing was more common than for persons disposed to part with their property to make us the offer of it. Amongst other persons it happened 706 that a Mr. Frost came and offered his little estate, consisting of eight acres of copyhold land, situate at Coggeshall. He had only a moiety in the estate, his sister having the other, and his father a life interest in the whole. For his share Mr. Frost demanded 500l., but I refused to bid for it unless he could bring his father and sister to part with their interests to him, so as to enable him to deal with me for the entirety, and for which purpose he effected a contract with his father and sister, giving to the former 150l., and to the latter 300l. for their respective interests, and a written agreement to that effect was regularly executed. Mr. Frost having thus possessed himself of the whole, I then agreed for the purchase of the property from him at the price of 950l., and an agreement, duly stamped, and attested by two witnesses, was executed between Mr. Frost and myself. As the whole question turns upon this agreement, I beg the House will bear it in mind. So extravagant was the price considered by my father, that he refused to have any part in the speculation, but happily, I subsequently found a most liberal purchaser in a Mr. S. Skingsley, to whom I sold it at a profit of 500l. The land lay contiguous to his estate and residence, and, in his eyes, possessed an arbitrary value on that account. Had I not sold it to him, and which I admit I thought highly probable when I made the purchase myself, although I had never had any conversation with him on the subject, I must have been a loser, as I could not have got the price I gave for it from any other person. These are the facts of the transaction which afterwards gave rise to the trial of Frost v. Harvey. The whole affair was concluded in 1809, and the circumstance of my having made a profitable speculation of Frost's copyhold was no secret, but matter of notoriety in the neighbourhood, as such things generally are. This was the first time I had had any dealing of any kind with Mr. Frost. Being on his part, however, well satisfied with what had passed between us, he afterwards came to me to employ me professionally. I received rents for him and there was for some years a running account between us. In the year 1814, five years after the date of the transaction, an action was brought against me by Andrew on behalf of Frost. The action directed by Frost had no reference whatever to the 707 500l., but solely to the balance of accounts between us, he claiming more than I admitted to be due. At the outset of the action I professed my readiness to pay whatever was due, and abide by the decision of any impartial man as to the amount. Mr. Andrew, however, promised his client more than he sought, and told him, that he would not only obtain any balance of account that might be due, but that he would also recover for him 500l. which I had illegally taken upon the sale of his land. As a proof that this was not the original motive of the action, but was a mere afterthought of the Attorney, I need only mention that Mr. Andrew, had proceeded some length in the action before he introduced this new topic, when he took out a summons to amend his "particulars" for the purpose. I, of course, resisted this iniquitous demand, which was founded upon the specious pretence, that as I was Attorney to Mr. Frost, I could not purchase his estate, there being a dictum of the Courts, that an Attorney cannot legally purchase of his client. Of course it was necessary, in order to support this allegation, to show that I was employed by Frost in the character of his Attorney in the business; that he met me as his professional adviser, instead of meeting me as the avowed purchaser of his property. I need scarcely observe, that the agreement between Frost and myself for the purchase by me of his estate for 950l. to which I before adverted, completely demolished this pretence of the Attorney, Andrew. The entire question, indeed, in the form in which it has this day been revived, hinges upon that agreement, of the existence of which I shall be able to refer to the most satisfactory and conclusive evidence. The trial came on in the Lent Assizes of 1814, at Chelmsford. Mr. Serjeant Best, now Lord Wynford, Mr. Marryatt, and Mr. Nolan appeared for the plaintiff: Mr. Smith was my sole counsel; and he had but one duty to perform, which was, to obtain the postponement of the trial, upon the affidavit of the serious illness of a principal witness; an individual who had been my clerk, and was actually the attesting witness to the deed of agreement, upon which, as I have before stated, the whole question as to the 500l. depended. The Court, at the instigation of the opposing Counsel, would only consent to my application upon terms, and these terms it 708 was unfortunately not in my power to comply with. The Judge required that I should pay into Court 400l. or 500l. and the costs instanter, as the condition of the postponement. It was not in my power to draw a cheque for that amount. But I offered what appeared to me to be an ample equivalent, viz. to pay the required sum into Court by the first day of next Term, or consent to a judgment for the full amount of the damages 8971. More equitable terms, one would suppose, could not have been offered—for the plaintiff could not get a judgment before the fourth clay of the following Term. The learned counsel for the plaintiff, however insisted upon the conditions of the Judge being complied with. My Counsel offered no further opposition, and the trial proceeded.
Confident of the postponement of the trial, as advised by Counsel, for the reason assigned to the Court, having no witness to prove the execution of the agreement, whereby alone it could be made admissible evidence, I had delivered no briefs. When, therefore, I unexpectedly found Judge and Counsel determined to proceed, I had but one course left. I did not choose to remain a spectator of this cruel mockery of a trial, and I therefore, left the Court to execute justice after its own fashion. The cause was taken and conducted to its close as an undefended cause. Not a tittle of evidence was produced on my behalf, and the Jury were left to infer that because I was an Attorney at Kelvedon, and had bought an estate at Coggeshall, therefore it was a dealing between Attorney and client, proscribed by the law, fraudulent, &c. &c. A verdict of 879l. was given, and I was about to move for a new trial, upon the particular circumstances of the case, when that was rendered unnecessary by the conduct of the plaintiff, who upon being rallied by his friends on the advantage he had taken of me, expressed his surprise at the course his Attorney had pursued, and honourably disclaimed any intention of disputing his own agreement; declaring that he would not profit by a verdict which awarded him a sum of money he never claimed, or instructed his Attorney to proceed for; his demand being entirely restricted to a presumed balance upon subsequent dealings and transactions which had no sort of reference to the by-gone affair of the Coggeshall estate. In pursuance of this feeling, Mr. Frost lost no time in changing his Attorney, and 709 placed the future conduct of this cause and his general affairs in other hands. The result was, that after an amicable investigation of our mutual accounts, a balance of something less than 100l. was found due from me to the plaintiff, and which, with costs, making 250l., I immediately paid, and for which I have now his receipt. I have one remark further to make upon this cause, viz. that in the first publication of the county papers, after the trial, I inserted an advertisement, stating that the agreement of sale between Mr. Frost and myself, as also between Skingsley and myself, were to be seen at my house, and inviting all persons to come and inspect them—an invitation which, in justice to me, many persons accepted. I have also to state, that my colleagues, the Common Councilmen of Bishops gate Ward, thirteen in number, met, at my instance, for the purpose of investigating this matter, and to repel the imputations which had been thrown out by Counsel in this undefended cause. Into their hands I placed the Agreements between myself and Frost, and also between myself and Skingsley. They deliberated upon the whole affair in my absence, and came to an unanimous resolution, communicated to me by their Chairman, Sir William Rawlins, "That my conduct throughout the whole transaction had been marked by the strictest attention to the principles of integrity and good faith." I really feel, that to offer another word upon this part of the subject would be most unreasonably to waste the time of the House.
Well, then, these were the cases I was called upon to explain before the Benchers, having received no intimation of their intention to desire explanation until the last moment, when I applied to be called to the Bar, and had made all my arrangements for entering at once upon the business of my new profession. I readily acquiesced in their wish. Tales of exploded and long forgotten slanders having been brought to their ears, I could but be anxious for the opportunity which this demand for explanation afforded me, of obliterating for ever the evil impressions from the minds of my judges; and I entered upon the explanation with the confidence which conscious innocence inspired, that the hour of complete refutation and triumph at this last ordeal of character was at hand. I made the same statement of facts and circumstances there that I have made here 710 this evening. In the case of Harvey v. Andrew, I offered to produce evidence of the utter worthlessness of John Andrew, who was put into the witness-box to sustain his brother's plea. This evidence they declined receiving. Why, then, it may be asked, did they enter into the inquiry at all? Upon what principle did this inquest upon character propose to conduct its investigation? Either they were to admit my statement as truth, or, doubting it, were bound in common sense and common justice to hear the witnesses by whom I proposed to substantiate it. They had heard the evidence on one side—they had listened to the accusation made in secret, but refused to hear witnesses for the defence. What was there let me again ask, in the judiciary conduct of the Star Chamber, or the Spanish Inquisition, more arbitrary, capricious, or monstrously absurd and unjust, than the solemn mockery of this proceeding? But, it may be said that the verdict of a Jury is conclusive. This is evidently not the view taken by the Benchers. If it were they never could have called upon me to explain the circumstances attending those verdicts, and the means and evidence upon which they had been obtained.
With reference to the other case, of Frost v. Harvey, the Benchers did receive evidence. Their report admits, that the only consideration in the case was the existence of the agreements between Frost and myself, and Skingsley and myself. To prove their existence I produced a respectable Attorney, formerly a clerk of mine, who fully testified to the fact. I offered the evidence of thirteen Common Councilmen of the Ward of Bishops gate, who had had these agreements in their hands, and the evidence also of many persons who came to see them at my house immediately after the trial, in consequence of the public invitation inserted by me in the county newspapers, and in answer to which advertisement and public challenge as to the fact, neither Andrew, nor Frost, nor Skingsley, nor any other person or party to the transaction, ever ventured to insinuate a word; I also offered to produce the stamp distributor who sold the stamps to me, and the conveyancing clerk who prepared the agreements, the clerk who engrossed them, the witnesses who attested them, my bill to Frost in which they were charged, and which he paid. The Benchers, however, treated 711 very lightly this mass of evidence, refusing altogether to enter upon it.
Such was the kind of justice meted out to me by this anomalous judicature; and how the learned Attorney General can sit and hear it unmoved, I own is to me a matter of unqualified astonishment. I will give an instance of what his learned colleague, the present Lord Chancellor thought on the occasion. He, some time since, said to me, "Come and see me at Serjeants' Inn next Monday night; there is a case coming on, which, if possible, is more oppressive than yours." I replied, "Of what use is it for me to go? they will not allow me to enter—do not you know it is a secret tribunal—have you forgotten my case?" The next day he saw me in this House, and he said to me, "You were perfectly right, they would not allow any one to enter." Now, I ask every Gentleman who hears me, is it fit that such a tribunal should exist in this country? I appeal to the Members of this House, as the guardians of the liberties of the people, whether it is fitting that a tribunal should be allowed to exist in this country, exercising the powers of sovereignty over the happiness, character, and fortunes of men, and spreading abroad rumours that blast their brightest hopes, and cast a shadow over all their earliest prospects, and yet possessing none of the attributes of justice. What did it signify that my learned Counsel told the Judges he could bring evidence to sustain my case? they would not hear it, alleging that they had no power to examine witnesses, or inspect documents. When the closed doors are besieged with witnesses, prepared to confirm all the facts which I had stated, we were told, by British Judges, that it was not a Court of Justice, and that they could not enter into such matters? Ought these things to go on without redress? The hon. and learned Gentleman says, that I have laid great stress upon my own case. Now, if there is one circumstance more than another which distinguishes the moral character of men, it is the fear, slavishly betrayed by some, and courageously thrown aside by others, of developing their own wrongs. Why, Sir, the very best measures of legislation have grown out of acts of individual injustice, which, until brought before the public eye, and disclosed to the Legislature, were practised with impunity against individuals, by secret and self-created 712 tribunals, in the absence of all forms of justice, and in the spirit of a pure and perfect despotism. Talk of the Court of Benchers being a domestic forum, exercising a tender and parental solicitude over the interests and character of its members? Why, Sir, it is a species of moral murder. What are the subjects which are brought before them? I will suppose that a member of the profession shall commit the highest of all moral crimes—that of running away with the wife of another man, despoiling the husband of his honour, and his children of their guardian—that a Jury of his country shall have imposed the highest penalty which it is in the power of a Jury, under the guidance of the Court, to inflict; and I ask the learned Bencher opposite, do they take cognizance of these things? Do they degrade and expel the convicted offenders by whom such acts are committed? Have we not seen at the bar of this House, evidence given, by which a Barrister, now practising with considerable eminence in India, was convicted of the grossest violation of every moral principle, and have the Benchers met upon the case? Can they meet upon it? I want to know this; what are the crimes of which a man is to be guilty, in order to disqualify him from gaining his bread by following the profession of a Barrister? The public have a right to know this. I will venture to say, that half the Gentlemen whom I have now the honour to address, never heard the particulars of my case till this night. Look, then, at the cruelty of my situation. Might not those Gentlemen have been thus addressed? "Do you know Mr. Harvey—have you heard any thing about him, or against him?" To which they might answer" I know but little about him, but something about his having applied to be called to the Bar; but that the learned and upright Benchers refused him; and when he applied to the Judges for redress, they also refused him." Is not this the cruellest species of injustice? Nothing can injure the reputation of a man so much as to make him the object of vague conjectures and dark surmises as to some undefined crime, which he is suspected of having committed. Is it forgery—is it murder—or what is it that I have been guilty of? Let me have the brand, if I deserve it, and convict me; but in mercy tell me what is my offence? 713 Speaking as I now do, to the Members of the British Senate—who, even as this House is now composed, are as a body, distinguished for their moral and intellectual qualifications, I ask them, whether it is fitting that a man should be condemned by a secret tribunal, like that which I have described, without having the power of compelling that tribunal to lay the record of his crime and condemnation upon the Table of this House? Gracious God! can this be justice? And can it be in England where such things exist?
The Attorney General says, there is a Committee of Justice to which I may appeal. Will he second the motion to have a Committee of Justice appointed? I shall owe him gratitude if he will! I never yet asked a favour of any man—I have been unused to play the courtier, or to offer the incense of servility, or the blandishing strains of flattery to men in power. I have always maintained my independence, and I will maintain it still, whether in this House or out of it; but I ask the learned Bencher—and it is the only favour I ever will ask of him or the party to which he belongs—that he will second a motion having for its object a strict and full and open inquiry into all the circumstances of my case. Let evidence be brought forward, and by the result of that inquiry I will abide. But I never will sit down the willing victim of this most ungenerous and party-coloured statement, which has been artfully made to crush me and my fortunes. When I return to my constituents I shall rely upon the integrity and simplicity of the course I have sustained. They will sustain me as they have nobly done upon former occasions, for I have never done any thing, nor over will, either to tarnish my reputation as a Member of this House—which, I trust, is as high an honour as to be a Barrister-at-law—or to lessen my pretensions to be again returned as the Representative of the people. Sir, I shall fearlessly take the sense of the House upon this Motion.
The Attorney Generalwished to be allowed to explain one circumstance. Those who had not heard the whole of the Debate, might be led to imagine that he had made an unfair and ungenerous attack upon the hon. Gentleman, by unnecessarily bringing matters of a private nature before the House; on the contrary, he had only introduced a few circumstances which the 714 hon. Gentleman himself omitted, and which certainly tended to explain many parts of his own statement.
§ Mr. CrokerIt is exceedingly painful to be required to decide a question of personal character, upon a discussion of public policy. Admitting, as I am bound to do, knowing nothing to the contrary of the truth of the hon. Member's statement, and the clearness of his character, still I do not think that this, of itself, would be a sufficient reason for making a general rule for all times and all cases, without much wider inquiry into the whole subject of admissions to the Bar than the discussion of the hon. Gentleman's particular case could supply. I therefore most unfeignedly feel the difficulty of giving a vote on the motion of the hon. Gentleman, which must be a negative, and would have the appearance, in some degree, of passing a condemnation on himself. I would ask him therefore, to consider whether he acts wisely in putting his personal case upon that issue? If he does, I think it equally fair to say that, in voting against his motion, I do not mean to vote against him. My vote is guided by the consideration that we are called upon to lay down a general rule on an important public question, which I am not prepared to support.
§ The House then divided on the Motion:—Ayes 52; Noes 68; Majority 16.