§ Mr. Bannerman
expressed his regret that one moment of the time of the House should be occupied with anything in which he was personally concerned; but he trusted the House would feel that he was justified in the statement which he was about to make. On a late occasion a discussion arose in that House on a motion brought forward by the hon. Member for Greenock, relative to the administration of justice in Scotland. Some remarks which then fell from the hon. Member for St. Andrew's (Mr. E. Ellice, jun.) were animadverted upon, and knowing as he did that there was no individual in the House who would less willingly say anything that could be painful to the feelings of another than his hon. Friend, he rose and said so, and expressed his regret that his hon. Friend should have made use of any expression relative to a Scotch judge which could be considered objectionable. In doing so he himself alluded to the physical infirmity of one of the judges, though not the same judge as his hon. Friend referred to. He stated that about ten days before he left Edinburgh he had been in the Court of Session, and had seen with regret a venerable judge of high character and of most upright mind, but very advanced in age, sitting on the bench. He mentioned the name of Lord Glenlee, and said that he was completely deaf, so much so that a brother judge was prompting him on the right, and another on the left, while a person was supporting him at his back; and he then stated that he was of opinion, judges at the time of life of Lord Glenlee ought to retire on full salaries, and he added that if no one else did so, he should take up the subject. The House had since passed an unanimous resolution stating it as their opinion that judges at a certain time of life ought to retire on a full salary, in consequence of which a Bill had been brought in by his learned Friend 147 the Lord Advocate, and had been read a second time. This was the sum and substance of what fell from him (Mr. Bannerman) on that occasion; he, therefore, did not imagine that words falling from him would have been animadverted upon either in that House or elsewhere. "But on Tuesday last," said the hon. Member "a friend met me in the street, and asked me how I liked the castigation that had been administered on me in the House of Peers, in consequence of what I said of Lord Glenlee, and he then furnished me with a copy of the Times newspaper containing the castigation spoken of by my friend, and which, with the permission of the House I will now proceed to read:—"Appeals, House of Lords, Monday, March 4 (before the Lord Chancellor, Lord Brougham and other Peers). After giving judgment Lord Brougham said—'My Lords, I consider it to be my duty, in the performance of strict justice, to make a few observations at the present moment in reference to what has occurred in another place respecting one of the learned judges from whose decision the present appeals have been brought before your Lordships. I allude, my Lords, to Lord Glenlee.' The noble and learned Lord then proceeded to make some general observations, in which I see nothing particularly to find fault with, but he concludes thus, which is that part of the report of which I complain:—'If my Lord Eldon bad been alive, I have no doubt he would have considered it his duty to adopt the same course which I have done, because it is the special and the precious privilege of your Lordships to defend, to sustain, and to protect the learned judges when you know that they have been foully, falsely, and unjustifiably assailed.'" In consequence of seeing that report I wrote a note to Lord Brougham, which, with the permission of the House, I will also read.5th March, 1839.Dear Lord Brougham—Some weeks ago having stated in the House of Commons, that I had seen with regret—'Lord Glenlee, a judge very far advanced in years, than whom there was not a better man or more upright judge presiding in one of the divisions in the Court of Session, totally deaf, so much so, that he was prompted by a judge on his, right anti lefts, and a person standing behind him, and that I thought judges at such an advanced age should be allowed to retire on full salaries, to which I should call the attention of the House, if no other Member did.'148My attention was called to the morning papers of to-day, in which there is the report of a Scotch appeal case decided in the House of Lords yesterday, where your Lordship is reported to have said, in alluding to observations which had been made in another place, regarding Lord Glenlee, 'it is the special and precious privilege of your Lordships to advocate, to sustain, and to protect the learned judges when they are foully, falsely, and unjustifiably assailed'—if these expressions be correctly reported, will your Lordship be so good as inform me whether you meant to apply the terms foul, false, and unjustifiable, to any observations which fell from me in the House of Commons, and I remain, faithfully, &c.A. BANNERMAN.Lord Brougham, &c.The noble and learned Lord, on the day following, replied in the following terms:—Grafton-street, March 6, 1839.Dear Mr. B—I beg leave to assure you, without any kind of personal disrespect, that neither you nor any man living shall ever be suffered to question me upon anything which I may have said, or been represented to say, in the discharge of my duty as a judge of the highest court of appeal in this country; and I am sure that a little reflection must convince you that I am now giving the only answer which it is possible for me to give to the letter you have without due consideration thought proper to write.—I am, dear Mr. B., yours, faithfully,H. BROUGHAM.To this letter I sent the following answer:—House of Commons,Wednesday Afternoon,Dear Lord Brougham.—Your note of this date was sent to me here. You will not I see suffer me, or any man living, to question you upon anything which you may say, or be represented to say, in the discharge of your duty as a judge. Will you, therefore, suffer me to question you as a gentleman, and to ask, whether you believe that a certain noble and learned Lord meant to apply the terms, foul, false, and unjustifiable, to any observations which fell from me in the House of Commons regarding Lord Glenlee. It is my intention to repeat those observations on Friday evening, and I was most anxious to confine my remarks to the venerable judge. If I do not hear from your Lordship before Friday, I will do, what I am sure you would do under similar circumstances, allude to the speech said to have been spoken the other day in the highest Court of Appeal in this country. Faithfully yours, &c.A. BANNERMAN.Lord Brougham's response to this was as follows:—Grafton-street, Thursday.Dear Mr. B.—Your second letter is, as 149 you must be aware, only another form of the first, and can only be answered in the same manner.Whatever you may do, in the way you mention, is for your own consideration; and I hope you will reckon it no disrespect or unkindness towards you if I say, that any reflections on my judicial conduct, by whomsoever made, or in whatsoever place, are to me a matter of perfect indifference. Nay, I had far rather any attacks were made on myself, who am able to defend myself, than on those who are necessarily without the means of defence. I am, however, far from suspecting you of any such thing. Believe me, dear Mr. B., faithfully yours,H. BROUGHAM.The House will see, that that noble and learned Lord will not suffer me to question him as a judge; bat the noble and learned Lord must then suffer me to say, that, having seen that report not only in the Times, butt in the Morning Herald, and the Morning Advertiser nearly in the same words, I think that there is no human being will believe but that that speech was spoken. The noble and learned Lord, in the speech, alludes to Lord Eldon, and says, that if Lord Eldon had now been living, he would have thought it proper to have adopted the same course. Perhaps he might, because with all the prudence and caution, and with all the talent of that eminent judge, nevertheless, he did, on one occasion, accuse an hon. Gentleman of this House of uttering a falsehood. Now, that hon. individual, Sir, was yourself. You did not submit, Sir, patiently to that accusation, nor is it right that I should be accused of snaking a false and calumnious attack upon a learned judge. The course pursued by you, Sir, I shall, if I am supported, follow upon the present occasion. I will, Sir, use your own expressions, and repeat the substance of what you stated when you brought the question before this House on the 1st of March, 1824, when, after stating what had fallen from Lord Eldon, you, Sir, used these expressions, and I now ask you to allow me to use what you then said, altering only the names. And "Now, Sir, let me ask what authority, what right has Lord" Brougham, "or any other judge, to undertake to comment from the judgment-seat on the debates of this House? Where does Lord" Brougham, "who is so cautious, find a precedent for this? How can he say, that he is not guilty of a gross breach of the privileges of this House? It is not a formal but a sub- 150 stantial breach of privilege, a direct attack on the security and freedom of debate, which is the only legitimate object of privilege." I assure the House, that I bring the question before the House solely on public grounds, and I should well like that an end should be put to the language which too frequently passes between Members of this and of the other House, and between Members of the other House and this. For by-and-by, unless we put a stop to the practice, it will, I fear, be said, 'A plague on both your houses.'" I will, Sir, quote only one other authority. In the debate to which I have referred, no man more severely censured Lord Eldon than Henry Brougham did:—The only defence that has been set up is, that there was something in the proceeding on his part as hasty in itself, as it was extraordinary on the part of that learned judge, that his conduct besides being indecorous to the House, showed rashness and impatience, very unsuitable to the judgment seat, and that, therefore, it is to be excused. I greatly fear, that no one out of this House will see the strength of this plea, and that if we refuse to deal with this offence, and reserve our privileges to crush those humbler individuals from whose attacks we have no danger to apprehend, even for this ignoble purpose they will be found ineffectual. If persons connected with the press or any person in inferior station to Lord" Brougham, "should feel any right to hold us up to public scorn, or to point to our proceedings in characters however false (for it is admitted that the representation this night in question is altogether false), I cannot conceive why he should allow such a wish to remain to the uttermost degree ungratified. But if that wish should be indulged in, it will be ridiculous, or worse than ridiculous, to arm ourselves with the terrors of privilege, to guard against ridicule or invective, while we take no means to secure ourselves against a repetition of this gross and dangerous attack on the freedom of our debates, and the independence of so many of our Members.I concur, Sir, in every word that fell from Henry Brougham upon that occasion. I cannot doubt, that the expressions in the report to which I have referred are intended to apply to me, because no individual in this House commented on the conduct of Lord Glenlee except myself. I am sorry to detain the House so long, but I will conclude by following the course which you, Sir, adopted in 1824; and I now, Sir, move, that "the printer of the Times do attend at the bar of this House on Monday next;" and I do so solely for the purpose, as you stated at that time, of 151 justifying the expressions used by me in this House.
Mr. Edward Ellice,
jun., assured the House, that on this subject of great importance, which his hon. Friend, the Member for Aberdeen had brought under the notice of the House, he was extremely happy to find, that a Member of more experience and of greater weight in the House, had relieved him (Mr. Ellice) from a duty which he would not have shrunk from in regard to the privileges or in vindication of his own character. His hon. Friend had fully stated hia case: but the report, which had been referred to, alluded indirectly to him for what he had stated in that House, impugning the Scotch bench. Those hon. Members who were present when the Lord Advocate introduced his bill to raise the salaries of the Scotch judges, would remember, that he took occasion to say, that considering the notorious physical infirmities of some of the learned judges, and the dissatisfaction which existed at the manner of proceeding in the Court of Session, and that the illness of others led to the belief that by a sudden accident the whole course of justice would be stopped, from the impossibility of procuring a quorum of judges, he thought it his duty, seeing also, that it was the subject of general consideration and comment on the part of the public press, to bring it under the attention of the House, and of her Majesty's Ministers. Certainly he had let fall, in the hurry of debate, an expression which was not warranted by circumstances; and he had taken the earliest opportunity of retracting the expression, which he regretted to have used; but if he had used the words "physical infirmity" instead of "mental imbecility," he would have had nothing to regret further than the regret which he always felt at being forced to use such an expression in the discharge of his public duty against judges so uniformly esteemed and respected. Except that expression, however, he did not lament the part he had taken in that discussion, and he was ready to sustain the view he then took, and he would do so when the subject was again under discussion. He assured the House, that it gave him great pain to allude to a subject of public notoriety. The facts, however, had not only been stated by himself, but in the most public way, in the newspapers, which, if they were false, might be proceeded against as libels. 152 Unless these statements were refuted by something more than mere assertions they would remain as facts in the public mind—they would be repeated, and until they were disproved, there would be no confidence in the public mind as to the administration of justice. He merely said this because, though attacks had been made upon freedom of speech for observations made in his place as a Member of that House, and though he had let fall an expression which he regretted, that he might repeat the statement, that the person who had thought fit to calumniate him might be disarmed of all pretence for the calumny which he had thrown out, and he would only say, that the imputation was as groundless as other misrepresentations and charges against the conduct of other men which had before fallen from the same lips. What course the House would take upon the present motion it was not for him to say. Whether they would step in to uphold their privileges which had been invaded by an attempt at interference with their discussions, or whether the House would pass by the allegations, as it had often heretofore passed by similar attacks was a matter of perfect indifference to him. He could only tell the noble Lord that whatever calumnious abuse he might receive, whatever odium he might incur, he would not be deterred as an independent representative of the people of England, from the course which he deemed to be right, or from making those remarks which appeared to him to be reasonable and proper on any subject before the House. He had thought it right to say thus much in reply to the foul aspersion which the noble Lord had thought it necessary to make upon him. He had never said one word in disparagement of the learning or the integrity of any noble Lord on the bench in Scotland, and he could only say, that if it were a matter of prudence and discretion on the part of the noble judges of the supreme court of Scotland to take no notice of his remarks, he thought it would be of advantage to the country if their example were copied by noble Lords who were placed in authority above them, and who presided in the highest court of judicature in the empire.
§ Mr. Williams Wynn
said, that the question could not be put till the paper complained of had been read by the clerk at the Table; which having been done,
§ Sir G. Clerk
said, he would leave it to 153 hon. Members who were more familiar with the forms of the House than he was, to discover whether that which was complained of by the hon. Member opposite, could be called a breach of privilege or not. As the hon. Gentlemen, the Members for Aberdeen and St. Andrew's, felt so sensitively the remarks which had been made in the newspapers, or in another place, with respect to their own character, they might very well understand how those who took a deep interest in the private reputation and character of the distinguished men who presided over the courts of judicature in Scotland, should, upon still higher than any mere personal grounds, for the sake of the respect that was due to the administration of justice in the country, be anxious to avail themselves of the first opportunity of giving a more complete and satisfactory answer to the charges which had been made, than could well be afforded on the spur of the instant when the matter was first brought forward in that House. He confessed he had heard, as he stated at the time, with the utmost astonishment, the statement which had been made by the hon. Member for St. Andrew's, with regard to the state of the judges of the Court of Session; and he could only attribute it to the ignorance which the hon. Gentleman—
§ Colonel Davies
rose to order. He apprehended the question before the House was not Lord Glenlee's state of health, with respect to which the hon. Baronet would have other opportunities of speaking. The question related to the freedom of debate. It was this—whether the observations reported to have been made in another place, were not a breach of the privileges of that House.
§ Sir G. Clerk
said, if he were considered at all out of order in the observations he was about to make, he should be perfectly ready to bow to the decision of the House; but having heard the hon. Members for Aberdeen and St. Andrew's, without interruption reiterating the same charges they had originally made as to the state of the judges of the Court of Session, he did appeal to the House, as a matter of justice, whether he should not be permitted to make a short statement—and he promised it should be very brief—by way of reply. He was proceeding to state, when he was interrupted, that he had heard, with great astonishment, the observations which had been made by the hon. Member for St. 154 Andrew's (Mr. G. Ellice, jun.), and he could only attribute it to the ignorance under which he thought, without meaning any reflection upon him, that hon. Member might fairly be conceived to labour upon such a subject, considering that he had been employed for a considerable period in the other hemisphere, and had only lately returned to discharge his duty to his constituents in that House, or look after their interests in Scotland. He was therefore only able to state what he knew of his own knowledge, from the recent opportunities he had enjoyed of personally communicating with the distinguished individual in question, that the hon. Member was totally misinformed as to the statement he had made. After he had spoken, the hon. Member for Aberdeen addressed the House, in corroboration of what had been stated by the hon. Member for St. Andrew's, adducing as evidence a particular instance, which he said had come under his own eye, and was calculated to produce a considerable impression on his mind. He knew perfectly well that the hon. Member for Aberdeen would not state, either in that House or anywhere else, what he did not believe to be perfectly true; and he concluded that the hon. Member must have laboured under some misapprehension. He (Sir G. Clerk) had therefore felt it to be his duty to write to those persons who were most certain to be accurately acquainted with all the facts of the case, in order that he might be enabled to state satisfactorily the whole circumstances when he should next have an opportunity of addressing the House on the subject. The observations which had been made by those two hon. Gentlemen, the Members for Aberdeen and St. Andrew's, had produced a great impression in Scotland, not upon the learned judges who were the subjects of those observations, they well knew the ability and energy with which they were conscious they discharged their duties, and they could safely treat, with silent and dignified contempt, the remarks which had been made. The same feeling prevailed among the gentlemen of the bar and the friends and relations of the judges in Scotland; but there were persons unconnected with the bar of Scotland, who knew that the effect of those remarks would not be confined to Edinburgh, seeing they were calculated to throw doubt where no doubt should remain as to the manner in which justice was 155 administered in Scotland. Among those to whom he wrote on this subject, he had felt it to be his duty to address the judges who sat its the same court with Lord Glen lee, and inquire whether they had any recollection of any circumstance that could give any colour to what had been stated by the hon. Member for Aberdeen. He trusted the House would permit him to read those letters, however they might meet the view of the hon. Member for St. Andrew's, who said he would still repeat and believe to the full extent what he, had stated with respect to the condition of the Scottish judges, until he had some better proof to the contrary than any mere assertion of a Member in his place. He entirely concurred in one observation of the hon. Member, when he said, that these observations, if susceptible of contradiction, were actionable; and so they would and ought to be actionable, if they had been uttered anywhere but in that House. When, therefore, hon. Gentlemen brought forward questions affecting their own privileges as Members of that House, they ought to take care not to abuse their privileges, by bringing forward vague assertions against persons whose character was public property as judges of the land, without taking more pains to make themselves masters of all the facts of the case than had evidently been done in the present instance. Some of the letters he had received were from the most distinguished persons in Scotland; he should not read the whole of them, lest he should give offence to some hon. Gentleman opposite, for many of the expressions were by no means complimentary to them. He would, however, with the permission of the House, read one letter from one of the judges who sat in the same court with Lord Glenlee. The hon. Baronet then read an extract to the following effect:—I have been extremely shocked by the observations made on Lord Glenlee during the late debate on the judges of the Court of Session, and I believe there are very few persons acquainted with the character, merits, and capacity of his Lordship in this country who do not experience similar feelings. There is, I believe, no judge on the bench whose opinions obtain higher respect, not only from his colleagues, but from practitioners and litigants, than Lord Glenlee's do; indeed, it would be strange if they did not, for no one case occurs in which he does not exhibit the most perfect acquaintance with the most minute fact, however complex or involved, as 156 well as on points of law, upon which the judgment of the court should be required, and this without the aid of a single note to fix the different circumstances in his recollection. Having sat beside Lord Glenlee for nine years, I may say his judgments have commanded the respect of the whole profession; and I can assure you, I have never seen, during all that time, the slightest reason to assist his recollection, or, as has been alleged, to prompt him as to matters in discussion. I have always felt that he was far better entitled to guide my judgment than I should be to prompt him. I suspect, however, that the hon. Member who said that he saw two judges, one on each side, and a clerk, prompting him, must have been present at a meeting of the Court, when a few matters of mere form were gone through, which the judges were the mere instruments of enacting, matters of course, into which nothing but Lord Glenlee's anxiety would have induced him to enter. This very circumstance necessarily produced embarrassment to the clerks; and hence, very likely, there was an appearance of a want of intelligence in the judge, which ought to have been attributed to the officer. It most assuredly did not arise from any want of capacity. Lord Glenlee is no doubt deaf; but not more so than he has been during the many years he has been looked up to as one of the greatest lawyers and judges that ever sat on the bench. But he is not so deaf now as another judge who was appointed Chief Baron of Scotland, with the approbation of the whole profession.He (Sir G. Clerk) had letters from another judge who also sat in the same court, who entered more into detail on some of the points in the case, and who suggested that the hon. Member must have gone into court only for a few minutes at an early period of the day, and that if he had remained a little longer, the whole would have been satisfactorily explained. Lord Glenlee, in addition to being one of the most acute lawyers in Scotland, was also one of the most eminent classical scholars in Great Britain. He believed he was also one of the profoundest mathematicians, having been occupied, the House would be surprised to learn, during part of the late recess, in working out a new solution of a very difficult problem in high geometry for one of the first mathematicians in Scotland. He wished the hon. Member had not so soon left the Court of Session on the day of his visit, or he would have beard Lord Glenlee deliver a most able judgment after his two juniors had expressed their opinions, when he not only took up with the greatest clearness the points they had laid down, but admirably illustrated and strengthened 157 their decision. He could not doubt, from the concurrent testimony of all parties in Scotland, that the two hon. Members for Aberdeen and St. Andrew's were the tools of some persons who wished to make use of them for a particular purpose. They seemed to be in the hands of some hungry expectants of office, who were anxious, that as the speeches of the hon. Members might have the effect of inducing that learned judge to retire, and that the Lord-Advocate, or some other eminent lawyer, being elevated to the bench as his successor, they might come in for a share of the business which the learned Lord now monopolized. He was sure, that all who had enjoyed the opportunity of seeing the judges in the Court of Session must be satisfied with the great vigour and energy, and legal acuteness, with which they discharged the important functions of their high situations. He begged pardon for having so long detained the House. If the hon. Member for St. Andrew's was not satisfied with the refutation of the charge which he had made, he had other letters which he could read. He would, however, content himself with repeating his expression of honest indignation at the calumnies, the foul calumnies, though he believed unintentionally, on the part of the hon. Member for Aberdeen, which had been uttered in connexion with this subject. He believed the hon. Member was acting under a great misapprehension of the real facts of the case; for with his known prudence and candour, it could not be believed he would have brought forward a charge of this nature without being satisfied in his own mind, that there was sufficient ground for it. He must, however, deeply regret, that on such slight grounds so grave a charge should have been brought forward. He did not know whether it were the intention of the hon. Member to proceed any further with this motion. He presumed he had brought it forward merely to give him an opportunity of addressing the House; and he (Sir G. Clerk) was afraid he had now trespassed too long on their indulgence. He begged, in conclusion, to appeal to the Lord-Advocate, in corroboration of the statements he had made, and he would leave it to the noble Lord, who, he saw, was about to rise, to say whether the paragraph which had been read was or not a breach of the privileges of the House.
§ Lord J. Russell.
The hon. Baronet who has just sat down has not, indeed, addressed himself to the question before the House, and, which was introduced by my hon. Friend, the Member for Aberdeen. The first question is whether it is proper that a charge should be made against any Members of this House for doing their duty in this House? and the second question is, whether we ought to proceed upon this charge as a breach of the privileges of this House? Now, with regard to the first question, which the hon. Gentleman only touched upon incidentally, I must say, that in doing so he only confirmed my previous opinion, that with regard to the conduct of the person who is represented as having given the opinion complained of, he is without any, justification whatsoever. It appears that the hon. Member for Aberdeen, on a motion before the House, was quite competent to give, and he had a right to give his opinion. Any Member has a right to state what he thinks may assist this House in forming an opinion either upon the matter before it or that might afterwards arise out of it. The hon. Member stated, that one of the judges was afflicted with the infirmity of deafness; and what has the hon. Baronet said in answer to this? Why he has read a letter from a learned Gentleman who sits in the same court, and who says that certainly the Judge is deaf. Therefore, with respect to the hon. Member for Aberdeen, there is no blame; he believed the case which had come under his own observation, and he was justified in speaking of the learned Lord's deafness. That the learned Judge is a man of great learning, of great merit, that through a long course of years he has been an able judge, and that he is distinguished in literature, and of great classical acquirements, is what the hon. Member for Aberdeen has not denied, and what no one has thought of denying; but it was said, that the course of justice may be impeded by the natural infirmity of a judge who has passed the age of eighty. If the hon. Member for Aberdeen be wrong in entertaining this feeling, I must be also blameable; for having heard reports of the infirmities of some of the judges, I wrote to the Lord Justice Clerk, who happened to be in town, and asked whether the bench in the court was completely filled, and especially respecting Lord Glenlee. I received an answer and a very satisfactory answer it was. I was assured that the business of 159 the court was well carried on, and from that time I thought it unnecessary to take any further step; but that infirmity should be imputed to a man more than eighty years of age is not extraordinary. Yet are we told by this newspaper that somebody, in delivering a judgement, which had nothing to do with Lord Glenlee, in which no judgment of that learned Lord was called in question, and where the parties were simply A and B, has asserted, that in what has been said by a Member of this House, that learned Judge has been "foully, falsely, and unjustifiably assailed," and that he insinuated, that these foul, false, and calumnious accusations had been made in this House, and by a Member of this House. I look upon this, Sir, as an unjust attack upon the privileges of the Members of this House; and I must say, Sir, whether I agree to the proceeding, which you recommended in the year 1824, or whether I do not, that any Member of this House, upon any question affecting the administration of justice, or on any other question before this House, has a right to state any facts or any circumstances which may assist the House to form its opinion; and I must say, also, that taking advantage of pronouncing a judgment, with the gravity which such an act ought to produce, to impugn the statements made in this House, to libel and to calumniate the Members of this House, is making an unjustifiable use of the privileges which belong to a judge. That, Sir, was also your opinion in the year 1824. In that case a learned and able judge thought that he had been unfairly attacked, and carried away by the warmth which naturally belonged to a man who, whatever were his defects in regard to delay and hesitation, was a learned and conscientious judge—carried away, Sir, by the warmth arising from those circumstances he imputed to you a falsehood, and I think you were right in making the statement which you did. But whether we ought to adopt the second proposition of my hon. Friend, whether it would be right to call to the Bar of this House the printer of the newspaper, and whether we ought to proceed further in this case, I cannot so readily give a positive answer. I dare say, Sir, that even in 1824 I entertained doubts on the policy of such a proceeding. I do not recollect, that I voted upon that occasion, or that I was convinced by the able speech of Henry Brougham. I think, Sir, that having the short-hand writer to the Bar of this House to produce his notes, 160 to prove which he doubtless can, that he took down the words, that they are accurately given, and that he had no intention to exaggerate or to extort the meaning; in short, to proceed further in this matter would tend neither to uphold the dignity of the judges, to ascertain the truth, nor to raise the character of this House of Commons. For my own part, I always think, as I stated last year, when the hon. and learned Gentleman, the Member for Dublin, was accused in this House of having said somewhere, at some tavern or other, I believe, "that Members of this House were guilty of foul perjury, that, with regard to these accusations of false conduct in the Members of this House, while those Members look to the propriety of their own conduct, and look to their duties to their constituents, it will not in the least tend to raise them in the opinion of the country, that they should assert their privilege by any vindictive proceeding;" and therefore, while I do not wonder at the matter which induced the hon. Member for Aberdeen to bring forward this question, seeing himself attacked in this manner for what was the simple performance of his duty as a Member of this House, I hope that he will not persist in his motion. At the same time, however, I hope that he will not be deterred from what he may conceive to be his duty, and that no aspersions of this kind will prevent him from saying what is his opinion on the various subjects coming before the House; but that undeterred by anything of this description, he will repeat any statement he may have to make respecting the Scotch judges or any other subject, on the merits of which he may be assured and whatever may be the consequence, no one will doubt, that he is only supporting his duties in this House, and that he is animated by feelings as pure and as conscientious as any which can animate any hon. Member.
§ Sir Robert Peel
I must say, that I hope the hon. Gentleman will not adopt the advice which has been offered him by the noble Lord, but that he will well consider the consequences of the exercise of the great privilege and right which, as a Member of this House, he undoubtedly possesses, before he questions the competency of those learned judges who are far distant from the place in which he brings forward his accusations. What is the case of the judge in question. The hon. Gentleman admits, that the learned judge, whose con- 161 duct he calls in question, is a man of the highest integrity, that no reflection has ever been cast upon him, and that his impartiality and his learning are undoubted. Doubts are entertained as to the physical powers of the judge. The noble Lord heard of this, and he instituted an inquiry which was perfectly satisfactory. I have, therefore, these facts before me. I am dealing with the case of a judge of the highest eminence, of the greatest experience, of admitted integrity, of the highest character for impartiality, and who is proved to be physically competent to perform the duties of his office, after inquiry has been made. What! can the hon. Gentleman be surprised that the friends of Lord Glenlee, after this should be displeased at having his powers questioned in a public assembly? We constitute the judges independent of the Crown, and we have reserved to ourselves the power of removing them upon an address; but if we do not think fit to exercise that power, we ought most scrupulously to abstain from diminishing the importance of their position, and from paralysing their functions by calling in question the manner in which they perform their functions. What must be the effect of any proceeding which tends to diminish their consequence in the administration of justice—what uncertainty must not be introduced by an allegation of their physical disability? Another gentleman may go into court and may fancy, that he sees other judges even less competent than Lord Glenlee, and how difficult it must be to determine the fact—how improper to make it the subject of discussion. You do not call in question any specific matter, but you make allegations against which it is impossible to produce proof, and you leave him, not removed by any actual interference of ours, but with his mental and physical powers called into question, and you are throwing every difficulty in his way to prevent his retirement from the situation which he holds. Now, the question is, shall we call this printer to the bar of the House—will you, who refused to notice the attack made upon a noble Friend of mine—will you, who said, that when parties found themselves accused great latitude must be allowed, and that it must be permitted that the acts of Members of this House should be questioned, and that it is preposterous to visit those who remark upon them with punish- 162 ment—will you, who in the beginning of this debate, in referring to matters in the other House of Parliament, thought that you evaded the breach of privilege by referring to it thus vaguely—will you, I ask, declare yourselves prepared to give up your privilege of calling this person to the bar? I deprecated the adoption of the course in the case of Lord Eldon, and Mr. Canning in that case also resisted the motion, and he thus concluded his speech to the House:—"With these feelings, and to prevent the commencement of a proceeding, the termination of which we cannot anticipate, and with the fullest admission, that the hon. and learned Gentleman has set himself entirely right with the House and the country, I shall oppose his motion." And if this motion be persevered in, to call this printer to the bar, I shall, for the purpose of preventing the House from encountering the difficulty which I see will arise, and on the same ground, as that stated by the right hon. Gentleman whose speech I have quoted, give my most strenuous resistance to the motion. Whether these words were used or not, I cannot undertake to say. I trust they were not as applied to the hon. Gentleman; but I must say, that if you exercise your extreme right to call into question the competency of the judges, you must not be too scrupulous in inquiring into the extreme right of others to defend them. Of the particular expressions that are in the newspapers, the accuracy of the report of those attributed to Lord Eldon was denied by him, and it is possible, that the newspaper report may have given them incorrectly in this instance also; but this I must say, I would claim for the judges sitting in the House of Peers the perfect right, on receiving appeals from the judgment of Lord Glenlee to say, "I affirm this judgment of Lord Glenlee; I have seen it questioned whether he is in the full possession of his faculties—whether his powers of hearing are so perfect as to render him fit to exercise his judicial functions; but from my own knowledge of him—from my confidence in his talents and his learning—and from an intimate acquaintance with those who know him, I say that these representations must be unfounded, and I have the greatest confidence in his abilities and competence." I say that it may be the duty of the judges to give vent to such feelings—it may be their duty to discoun- 163 tenance those expensive appeals which may be made in consequence of the exercise by you of your right, for you may have induced those suitors by your representations of the in competency of the judges in Scotland to entertain a hope, that the decisions given by them may be reversed; and, if it be so—if you have the right to call into question their competency—you are not the men who are to complain of another who says, "I know, that Lord Glenlee is worthy of public confidence, and I feel it to be my duty to discountenance those suitors who have appealed from his decisions to to the House of Lords on the ground of his inability." The hon. Gentleman who spoke from the third bench (Mr. E. Ellice) did not attempt to deal unfairly with the House, and he very candidly confessed his regret at some of the terms he had used—he stated, that he was exceedingly sorry for what he had said. Why, then, extend your indulgence to this case? Permit those who are the friends of these eminent men to vindicate them from charges which are unfounded, and having this power, and the right to exercise it, let us consider what risk we incur of prejudicing the administration of justice by preferring charges which admit of very positive refutation, but which tend to impair the efficacy of the judgments of those who preside in the courts of law.
§ Mr. W. Duncombe
thought, that if the course proposed by the hon. Member were adopted it would be both objectionable and inconvenient, and more especially as the hon. Member had not informed the House how he would follow up the motion in the event of its being affirmed. Every thing he had heard in the debate had confirmed his opinion, but one expression which had been used would convey to the House an idea, that Lord Brougham was ready, and had taken opportunities of expressing his animosity in reference to the late Earl of Eldon. Political animosity might have existed between the noble and learned Lords, but he felt it to be due to Lord Brougham to say, that both in the House of Commons and in the House of Lords, and also on the judicial bench, he had taken opportunities over and over again of bearing his testimony to and of passing his high encomiums upon the judicial talents, unsullied integrity, and spotless character of the noble Earl. He repeated his regret, that the hon. Gentleman 164 had thought proper to delay the public business, when his motion could not lead to any satisfactory conclusion.
§ The Lord Advocate
having been particularly alluded to, felt it his duty to say a few words upon the subject under discussion. It would be in the recollection of bun. Members, that he rose immediately after the hon. Gentleman, the Member for Greenock on a former evening, and, that he went through all the cases to which he had alluded, and he trusted, that the account which he gave was a satisfactory one. In doing so he had been compelled to advert to many of the observations made by that hon. Member, and he was able, he thought, successfully to anticipate and to obviate most of the expressions afterwards made use of by the hon. Members for Aberdeen and for St. Andrew's. He regretted exceedingly, that those observations had been made, but he could not deny, that Members of that House had a right to inquire into the manner in which justice was administered, but he agreed, that the exercise of the right was to be guarded by the strictest caution, and if a case arose, on which they might require an exposition, the party making the motion should state much less than he contended for, in order that the House might inquire into the fact. He could not help thinking, that the discussion should now terminate at once, for if words were made use of in another place, in reference to what was said in that House, such a course could only be defended on the ground of the persons who defended the person first attacked having a right to use much stronger language than was commonly employed. He thought, that the character of the judges of the land ought not to be attacked upon slight grounds, and that aged gentlemen who had long devoted their services and abilities to their country, in the performance of their duties in an impartial manner, ought to receive not merely the indulgence but the protection of Parliament.
§ Mr. Williams Wynn
was of opinion that there was not the shadow of a pretence for maintaining that there had been any Breach of Privilege on the present occasion. He had always contended for the real privileges of the House, and he should always continue to do so; but he considered that nothing could so effectually tend to the subversion of those privileges as an attempt to push them beyond their ancient 165 and legitimate extent. True it was, that no Member could, without a breach of privilege, be called in question, or personally reviled for anything he bad stated in his place in Parliament; but was it to be said that any allegations made in that House against the character and the conduct of an individual were not to be questioned or contradicted, and particularly that no newspaper was to venture to give currency to a contradiction of such allegations when they had been publicly circulated by its own reports? When the allegations had been made, was it not to be allowed that they should be declared to be false and unfounded? If any man, not a Member of that House, had an allegation made against him, might he not say that whenever and by whomsoever it had been made, it was false and unfounded, and was it to be said that the reporter was not to give publication to that contradiction, because it might happen that the slander originated with a Member of the House of Commons? He regretted, and he should always regret, that any Member of one House of Parliament should so use his discretion as to point to an expression used in the other House, and to comment upon it, but when allegations reflecting on an individual had been made, and they had been published from one end of the country to the other, to say that that person or his friends should not be at liberty to give the same publicity to a contradiction, seemed to involve a degree of tyranny which he trusted neither House of Parliament would ever attempt.
§ Lord J. Russell
I am glad to see that the time has come when the right hon. Gentleman speaks against privilege.
§ Mr. Williams Wynn
I have not spoken against privilege, but I have spoken against that which, if it were proved, and could be proved, to be according to the privileges of the House, would be tyranny to the country.
must enter his most decided protest against the principle of commenting in one House upon the speeches made in another, which he thought was likely to be attended with the most mischievous consequences. With regard to this particular case, the noble and learned Lord might have commented upon the judgment immediately under consideration, without at all referring to the observations made by the hon. Member for Aberdeen, because he could well have said, that the appeal was one in which 166 Lord Glenlee had delivered his opinion—an opinion which he maintained was to be depended upon, because he believed his faculties to be unimpaired, and the powers of discrimination of that learned Lord to be unimpaired. The noble and learned Lord, whose friendship he had enjoyed for the last thirty years, however, so far from pursuing this course, had declaimed against the observations which had been made, contrary to the dignity of the judgment seat, and against the sobriety of his judicial character, and in using those expressions which were attributed to him (if he had used them) be must say, that he had taken a course likely to produce consequences the most mischievous, and, in his opinion, degrading to the judgment seat, in converting the highest tribunal in the country—where justice should be administered purely and distinctly, into an arena for political discussion. He should not enter into the various other cases discussed, but although he had no sort of personal acquaintance with Lord Glenlee, he knew him well through the judgments which he had delivered, and which he had been in the habit of reading, and he might say pondering upon; and he must say, that he never perceived any defect in the mode in which they were framed. What the learned Lord might be as regarded his ordinary powers he was unable to judge; but so far as the written record went, he must say, that no good reason for complaint existed. He agreed with what had been said of the character of the judges, and as to the mode in which the execution of their duties should be questioned in that house; but he begged to say, that when a case did occur which it was necessary to state to the House, however odious the task might be, it was the duty of that hon. Member who was interested in it to bring it forward. He alluded to no one, but it had been his fortune, in the course of his experience, to see instances in which men of great learning and great ability, had from old age and infirmity become incapable of performing their duties, and it was on that ground that he thought, although it was impossible to mark out the precise period at which the judges should retire, that a greater benefit could not be conferred upon the country than that of giving the judges, when they reached the age of fourscore years, whatever might be their vigour, the opportunity of spending the remainder of their lives 167 without the necessity of their being exposed to the agitation and excitement produced by the proceedings in which, by a continuance in their situations, they would be necessarily mixed up. He could not agree that this was an improper intrusion, for any man who had placed his conduct before the public, was bound to come forward and defend it. He had only to express his deep regret, that the noble and learned Lord, if he did use these expressions, bad not afterwards said, "I was discharging my duty, to the best of my judgment, and I will at once acknowledge that I did not mean to impute conduct to the hon. Gentleman unbecoming his condition and station" There was nothing to prevent his doing so, and he appealed to both sides of the House, whether these expressions, having fallen in the warmth of argument (although he contended that there should be no warmth allowed to exist on the judgment seat), any hon. Gentleman having used them in reference to an individual not in the House, whether he were high or low, if he had said anything not strictly true, would not say "Question me you cannot, for I have a right to stand on my privilege, but as a man of honour, I am ready to express my sorrow." He begged to say, that he hoped there would be no misapprehension of what he had said this evening. It was a painful matter to him to have been obliged to have delivered his opinions, or to have discussed the conduct of his noble and learned Friend in any form. He had enjoyed his intimacy and friendship during the last thirty years, and he hoped that he had said nothing, which would offend him, but that his noble Friend would rather prize his friendship the more for having declared the opinion which he entertained.
§ Mr. Bannerman
in reply, said, he did not think he had been very fairly dealt with in the course which the debate had taken, and he begged now to repeat what he had before said, that the learned Lord to whom he had referred was prompted on the bench, for he had witnessed the circumstance himself, and therefore knew it of his own knowledge. He had never intended to say anything in reference to the learned Lord otherwise than speaking of him in the highest terms so far as his personal character went, but his observations had been directed to his physical infirmities. The right hon. Baronet (Sir Robert Peel) would recollect, that in 1826 168 a subject of a similar character had been discussed, when a petition was presented by the present Lord Abinger, then Sir J. Scarlett, in reference to Lord Norbury, the Chief Justice of the Common Pleas in Ireland. The petitioner alleged "that the noble Lord was eighty-five years of age, and was incapacitated from the adequate performance of his judicial duties by the infirmity and debility consequent upon old age. In particular, the learned Lord was so subject to lethargic stupor, that he would frequently fall asleep in the middle of the trial at which he was presiding." Mr. North subsequently "admitted that that part of the allegations of the petition against the learned Lord was undoubtedly true, in which it was stated that he was eighty-five years of age, and he had ascertained, having taken pains to make the inquiry, that there was no judge so old either in Ireland or this country. He agreed, too, that the learned Lord would have consulted his ease, his dignity, the wishes of his best friends, and the interests of the administration of justice, if he had retired from the bench some time since." As there seemed to be a feeling in the House against the motion, and as he had been enabled to make his statement in that House, he would not further press his motion. The noble and learned Lord however, in one part of the report of which he complained, had said, that he ought to have moved an address to the Crown for an inquiry into the physical infirmity of the judges in the Court of Session; and he, therefore, begged now to give notice, that in consequence of what had fallen from hon. Members tonight, he should, on a future day, move such an address. He rested perfectly satisfied that, should such an inquiry be instituted, every allegation he had made would be substantiated by the evidence.
§ Sir R. Inglis
doubted, whether it were competent to the hon. Member thus to withdraw his motion without the consent of the House. Still less did he think it consistent with the dignity of the House to suffer the motion to be withdrawn, pending such a threat as was conveyed by the notice of motion just given by the hon. Member for Aberdeen, with respect to the physical infirmity of the judges of the Court of Session in Scotland. Unless the hon. Member gave a better reason for the withdrawal of the motion, he should oppose it.
§ Mr. Bannerman
would meet the hon. Baronet by asking one question of the hon. Baronet, the Member for Stamford. Did the hon. Baronet ever hear of one of these Scotch judges having, when about to deliver a judgment, folding his hands after the manner of one about to say grace at a dinner, and uttered aloud the words, "For what we are about to receive, may the Lord make us truly thankful?"
§ Sir George Clerk
had heard the absurd story in question. He heard it from the hon. Member himself one day in the street, and he then told the hon. Member that he did not believe it, and that he thought it was a joke. With regard to the question of the physical infirmity of the judges in question, he was comparatively indifferent, while he had the high legal testimony of the hon. and learned Member for the Tower Hamlets to their unimpaired mental energies, as exhibited in the judgments which in the course of his professional career he had been in the habit of reading and considering.
§ Sir Charles Grey,
if the hon. Baronet forced the House to a division, would oppose the motion of the hon. Member for Aberdeen; but he would do so solely on the ground taken by the right hon. Gentleman, the Member for Montgomeryshire—that no case of breach of the privileges of that House had been made out.
§ Motion negatived.