HC Deb 10 February 1842 vol 60 cc263-91
Lord John Russell

rose to move for copies of the letters of the late Lord President of the Court of Session in Scotland, and the late Chief Justice of the Queen's Bench in Ireland, resigning their judicial offices. He made this motion in consequence of the circumstances under which those resignations appeared to have taken place. He said "appeared to have taken place," because the letters for which he moved might give some colour to the transaction which he was not aware of. He thought it of the greatest importance that that House should pay rigid attention to whatever related to the judges. They were placed in a high station, to which they were appointed for life, they were paid large salaries, and retiring pensions were allowed to them when unable to perform their duties. The performance of these duties was generally attended with very great respect and observance on the part of the public, and on the part of Parliament; so that, however some might object to that principle of the constitution which rendered the judges independent, it could not be said that the judges had reason to complain of the mode in which they were treated by Parliament or the public. Such being the case, and the in- conveniences which some very considerable writers had pointed out having been incurred for the sake of placing the judges in an almost irresponsible position, he thought, the public was entitled to expect from them a total and entire devotion to their judicial duties, and that nothing of a party political character should attach to them while they held the station of judges. Now, circumstances had occurred in the cases to which he referred, which certainly were prima facie of a suspicious character; for no sooner was one set of Ministers changed for another, when two of the highest judicial personages, one holding the office of Chief Justice of the Queen's Bench in Ireland, and the other the office of Lord President of the Court of Session in Scotland, resigned their offices, and accepted retiring pensions. He said, that on the face of it, it would appear that one of two things had taken place — either that these judges, during the period in which they retained their offices, had been for some time unfit to perform their duties with that vigour and intelligence which were requisite—or that, being still in full possession of their powers, they had resigned their judicial situations into the hands of those whom they considered their political friends, and obtained retiring pensions, thereby depriving the public of the use of those talents which ought to be devoted to its service. That one of the two cases had happened appeared to be probable, for otherwise it would be extraordinary the inability of two persons holding such high situations should be precisely cotemporaneous with the accession of a new Ministry. This might be explained by the letters for which he had moved. It might appear to have been the case, however singular and strange, that in September or October, 1841, such an infirmity or illness had attacked both these eminent persons as led to the resignation of their offices, and rendered them unable any longer to perform their duties. If such should appear from the letters, or from any statement that could be made in that House, then all suspicion would be at an end. At the same time there were other circumstances that made it more necessary for such an explanation to be given. One was with respect to the Chief Justice of the Queen's Bench in Ireland, that for some time he had seldom attended circuit, or performed the duty of a Judge going circuit. Another was with respect to the Lord President of the Court of Session, that his near rela- tion had been appointed to the vacant seat. These circumstances were calculated to strengthen the suspicion, that those judges had retained their situations, in order to deliver them into the hands of their political friends. He said, that considering the eminent situation which the judges filled, the purity with which they ought to maintain their character, the manner in which they ought to stand clear from all political partiality, it would be a great Misfortune if judges were found to abuse their situations, and take advantage of the act by which they could not be deprived of their places unless for misconduct, and by address from both Houses of Parliament —so far to regard, not how the duties of the judicial bench were to be performed, but in what manner the Treasury Bench in that House was occupied. He thought, that would be a great misfortune, and he should be sorry if he found no sufficient explanation on the subject. He did not think, as the case at present stood, that any charge, or anything approaching to a charge, was to be made against the executive government on the subject. It was their duty, when the vacancies took place, when the resignations were placed in their hands, to ascertain, in the first place, that they were made by persons who could not properly go on with their duties, and in the next place to see that those vacancies were filled by persons of sufficient learning and ability. He had nothing to say on these points, having no doubt that those duties were performed. With respect to the persons nominated to the vacancies, their names were sufficient guarantee for their high character, legal ability, and integrity, and these he was not going to question. It was not, therefore, to make any charge against the executive government, that he wished to ask for these letters. It was that notice might be taken of the subject, which might Operate as some warning to person in high judicial situations, not to allow themselves to be bent by political partiality, but to consider themselves as judges totally removed from all partisanships, whether Whig or Tory. With these few observations, he begged to move for the papers to which he had referred.

Sir James Graham

said, that until the noble Lord rose for the purpose of explaining the reasons which had induced him to bring forward this motion, and after the best reflection he could give to the noble Lord's notice, he had remained in the gravest doubt as to what could be the motives or intentions of the noble Lord in bringing it forward. If the noble Lord had any accusation to make against her Majesty's Government, if he had had any doubt of the purity of their conduct, or any allegation to bring forward touching the motives which had induced them to give effect to the resignations of those judges, then he should have been perfectly prepared to meet the noble Lord, and should not have hesitated one moment as to the course he ought to pursue. But the noble Lord said that with respect to the executive government he had nothing whatever to allege—that they had no option in receiving the resignations duly attested—the fact being undoubted, and the inability of the parties to perform their duty being ascertained, that they had no alternative but to accept their resignations and exercise the best discretion they could in advising the Crown as to the manner in which the vacancies should be filled up. The noble Lord had no complaint to make of the mode in which that duty had been discharged by the executive government; and in bringing forward his motion it now appeared that it was not for the purpose of reflecting on the character of those venerable judges who had lately retired froth presiding, the one over the highest court of common law in Ireland, and the other Over the judicature of Scotland—but as a warning to future judges not to follow their example. He had not the honour of knowing either of those eminent persons, but he should say that their conduct, so far from being held up as a warning, had left a bright example to be followed by their successors in office. Their ability, their learning, their impartiality, could not be impugned, and on the testimony of the bar of the countries where they had sat upon the Bench was, a complete answer to the insinuations of the noble Lord. With respect to Chief Justice Bushe, he saw on the other side of the House a learned Gentleman, who he believed in latter years had been much opposed to the chief justice in politics, and who would admit that the address presented to Chief Justice Bushe, on his retirement from the bench in Ireland, by Mr. Dickson, the father of the bar, was agreed. to unanimously by that learned body. It expressed their great admiration for the talent and conduct of the learned judge at a time when no motive of fulsome adulation could be assigned for its presen- tation, and its tenour was such as left nothing to be desired by that venerable person oh his retirement into private life. He was not going to pass an eulogium on Chief Justice Bushe, but if he were not mistaken, he was one of those who had been most distinguished in Ireland in their day—and had stood prominently forward without losing by comparison, with Mr. Grattan, Mr. Curran, Lord Plunket, and others of the greatest eminence. Recollecting this, he could not but regret for the sake of Chief Justice Bushe, that at his advanced age and in his present position, having retired into private life, the noble Lord should have come forward to hold up his conduct as a warning to future judges who were told not to follow his example. With respect to the Lord Pre-dent of the Court of Session, he had not the honour of knowing him, but, he believed, that for thirty-seven years he had been on the bench and for thirty years had presided over that court. Until the present moment, whatever heat of party might have existed in Scotland, he had understood that the integrity of judical conduct of the Lord President had never been for one moment called in question. It had sometimes occurred to his thoughts, when reflecting on the reasons for this motion, that the noble Lord might be anxious to inquire whether the present Government, following former example, had at all entered into negotiations with the learned judge: that the noble Lord might be anxious to ascertain whether the present Government had employed the Solicitor-general of Scotland to negotiate with the Lord President with respect to the amount of retiring allowance. He thought the noble Lord might have been anxious to know whether some expectant Solicitor-general, waiting to be Lord Advocate, had negotiated with the Lord President respecting a clause to be introduced into a bill before Parliament to secure his retiring allowance, upon condition of his immediate resignation; that the Lord Advocate might be made Lord President, and the negotiating Solicitor-general succeed to the post of Lord Advocate. He thought that a supposition of some such proceeding might have aroused the constitutional jealousy of the noble Lord, or that his suspicions might have been excited by his own past experience in office. In thinking that such might have been the motives of the noble Lord, he felt strong in the consciousness of not having been a party to any transaction of that description, and that he could give the most positive negative to any statement of that kind. He could state on the part of the Government that neither directly nor indirectly was any communication made to the Lord President with respect to his retirement from office, or the amount of his compensation. The noble Lord said, it was of the utmost importance that that House should pay attention to the resignations of the judges. And the noble Lord's jealousy was not confined to Scotland. Of course the noble Lord extended his jealousy to Ireland. It was not only a Lord Chief Justice that had retired; they had heard of a Lord Chancellor retiring not upon the accession of a Government to office, but when a government was virtually condemned—condemned by Parliament and the country; and the continued existence of that Government must have been known to the Members of it themselves to be impossible. They were not left to vague surmise as to the circumstances under which the Lord Chancellor had retired from the bench in Ireland. They were not left to suspect whether the Government had offered some inducement to that noble person to retire from the judgment-seat when he was quite competent to continue upon it. There was no doubt upon the matter. It was not to he investigated or inquired into, as with regard to the motives which induced Chief Justice Bushe to resign. The circumstances which induced Lord Plunket to resign were known to all the world, having been stated by Lord Plunket from the judgment-seat, in terms which he would now read to the House. The noble Lord thought it of vast importance, that there should be no indirect communications. Let the House hear what Lord Plunket said with respect to the communications which had been made to him:— With regard to the particular circumstances which have occasioned my retirement I wish to say a few words. I think it a duty which I owe to myself, and to the members of the bar, to state, that for my retirement on this occasion I am not in the slightest degree answerable. I have neither directly nor indirectly sanctioned it, and in giving my assent to the proposal which was made to me of retiring, I was governed solely by its having been requested of me—on the ground of public duty?—nothing of the kind—as a personal favour to do so by a person to whom I owe such deep obligations, that an irresistable sense of gratitude made it impossible for me to do anything but what I have done. Now he (Sir James Graham) simply assured the House and the country, with respect to the Lord President Hope, and the Chief-Justice Bushe, that no member of the Government, no Solicitor-general of Scotland, no Lord-lieutenant of Ireland, had asked either the one or the other to retire from office. The Government never tampered with those learned persons; and they would have scouted such tampering if the Government had dared to attempt it. Their resignations were freely offered —they were accepted by the Government on public grounds, and on public grounds only—they were accepted freely and unconditionally; and the Government had, to the best of their judgment, advised the Crown as to the manner in which those offices should be filled up. He would not, therefore, unless compelled by a vote of that House, consent to a course so unusual, that it would stamp with something like disgrace those venerable persons. He would not consent to the production of those letters. If he could produce those venerable persons themselves, shaken, perhaps, somewhat with age, but strong in conscious integrity, and bright with the hope of honest fame, mingling with still brighter hopes, if lie could so produce them, he knew—such was the generous feeling of that House—that all the angry contentions of party would subside at their presence, and the desire would be unanimous not to curse their retirement with the pangs which a motion like this might inflict. They would be treated with respect and reverence. Even the noble Lord would regret, that in a hasty moment he had been betrayed into making such a motion as this.

Mr. Fox Maule

said, that he cordially joined in the last wish expressed by the right bon. Baronet. He wished, so far as Scotland was concerned, that they could produce in that House the venerable gentleman who had just retired from the office of Lord President. He should be sorry to be led, in following the right hon. Baronet, to use any expression which could pain that venerable gentleman; but if be did so, it would be from the right hon. Baronet having dwelt so broadly on the cause of his retirement, and having denied, that it was attended with circumstances which could not only justify the suspicions of his noble Friend, but carry out those suspicions into the breast of every man in Scotland. It was perfectly well known by every Scotchman—he saw hon. Gentlemen sitting opposite who knew it well—that the late Lord President had been, for many months before his retirement, incapable of performing his duties. He would ask the Lord Advocate, whom he saw opposite, how often the late Lord President had presided in the Jury Court of Scotland? He would ask, whether, before the late Government, brought forward the motion, which led to their resignation, the Lord President had not, on the assembly of the judges, stated, that his infirmity was on him, and that he must give up to other judges the performance of his duties in the jury courts? Was that the first instance of his having done so? By no means. The right hon. Baronet referred to the bar of Scotland as bearing evidence of the manner in which the Lord President had discharged his duties. It was by the forbearance of that bar, that the learned judge in question had been enabled to hold his position to so advanced a period. Hon. Gentlemen in this country might imagine, that because the Lord President had presided in the Court of Session, without great fault being found with his judgments, without falling into errors of memory, or other errors incident to age, his functions were efficiently performed. But it should be recollected, that in Scotland there were written pleadings and written defences, which the judges took home and formed their judgments upon in the retirement of their chambers; whilst the English judges listented to viva voce pleadings, and gave judgment from their notes, and, therefore, could not discharge their duties so easily as if they had written pleadings to examine. The right hon. Gentleman had alluded to another case, which was so notorious, that it was surprising a Gentleman of such high public virtue, as the Secretary of State for the Home Department, should have let it slumber so long. He alluded to the case of Lord Corehouse, who retired from the bench about two years ago. During the whole of that period, the indignation of the right hon. Gentleman had slept upon it. He could not plead ignorance of it, for printed papers containing the whole evidence on the subject, had been transmitted to him and others. However, the right hon. Gentleman now accused the late Government of making a bargain for the retirement of Lord Corehouse. What were the facts? Lord Corehouse, in the execution of his duties, was struck with a paralytic stroke, which rendered him incapable, in the opinion of his medical advisers of ever resuming his judicial functions. At that time, when the Government had no prospect of retirement—when there was no appearance of danger in the political horizon— it became a question with Lord Corehouse, whether he should apply for leave of absence from his court, which must have terminated in his resignation, or immediately retire from his judicial functions. The circumstances which weighed with the mind of Lord Corehouse was, that there was a bill then before Parliament regulating the retiring salaries of the judges, and that if lie retired immediately, he would not be likely to come within the provisions of the bill. He wished, by taking advantage of the leave of absence, to prolong his judicial existence, so as to come within those provisions. The question, therefore, arose, whether it were not better that he should retire at once, not to make room for a successor at a time when the power of appointment was in danger of lapsing, but to allow his situation to be at once effectually filled up, and whether, for that purpose, a clause might not be introduced into the bill, so shaped as to give him the benefit of the retiring salary, according to its provisions. He had no hesitation in admitting before the public, to whose judgment he appealed, that he was a party to that transaction. He had compassion on a judge who had served a long time upon the bench—who was struck with an almost fatal disease—whose mind, indeed, was then in such a state that he was hardly fit to be treated with at all, and for the purpose of allaying his feelings, and at the same time of rendering a court efficient whose efficiency had been much questioned, he did assent to the introduction of that clause. The right hon. Baronet had thought it worth while, in order to gain a party cheer over his noble Friend, to misrepresent the whole circumstances as a party political proceeding, but forgot how much obloquy in that case it threw upon himself; for if the transaction was blameworthy, or savoured of an attempt to render impure the channels of justice, why did not the right hon. Gentleman bring forward the charge two years ago? The right hon. Gentleman shook his head. He would leave it to the public to judge between the right hon. Gentleman's charge and his answer. He avowed himself openly a party to the transaction, and be ventured to say, that in the impartial judgment of the public, he would stand in a better position with regard to it than the right hon. Gentleman. He had said that the late Lord President of the Court of Session was not in a state to discharge all the duties of his office. He had stated that he could not discharge the duties of one particular court over which he ought to preside. He would go further and say, that that venerable man lingered on the bench till those who knew what he had been pitied what he had become. He would say, likewise, that latterly some of his judgments had excited deep and irrepressible disgust in the public mind of Scotland. He alluded especially to one judgment, in a case, perhaps, the most important that had ever come before a judicial tribunal in Scotland, and on which the Lord President of the Court of Session was called on to give an opinion. It was a case in which the feelings of the people of Scotland were deeply involved —he meant the Strathbogie case. When the learned judge in question had to give judgment in that important case —by which the public mind had been so much excited—he so far allowed his temper to get the better of his discretion —to adopt the most charitable construction —that instead of delivering his judgment with the calmness and dignity which would render it effective in removing the doubts as to the respective powers of the civil and ecclesiastical courts—and at all events tend to allay the angry feelings that had been excited—he compared the general assembly of the Church of Scotland, composed of men who stood high in the affections of the people—using a simile, borrowed from the noble Lord opposite—he called that venerable body "thimble-riggers." He compared the General Assembly, in his judgment, to men who tossed at racecourses, and cried "Heads, I win; tails, you lose." He defied any one to deny, that those terms had been used by that learned judge on the bench. Would any gentleman in Westminster Hall tell him, that if such ribaldry had been made use of by Lord Chief-justice Denman, it would not have met with deep and general disapprobation, to say the least of it? He attributed it to no wish on the part of the Lord President to hurt the feelings of any party in Scotland, but he did say, that so much of temper had mixed itself up with that of judgment, that it had created in Scotland a deeper feeling of indignation, and had done more to widen the breach between the Civil and Ecclesiastical Courts, than any other circumstance. In Scotland they had a narrow circle, and Were apt to speculate much among themselves about some parties in that circle. The right hon. Baronet, the Member for Tamworth, could set at rest one suspicion, or report. which prevailed there. It was said, that the Lord President Hope had tendered his resignation in 1834 or 1835, during the right hon. Baronet's former administration. He could scarcely credit it. Still, for the sake of the learned Lord's character, he hoped this opportunity would be taken to deny it. There was another circumstance more confirmatory of this statement than mere report, and that was the statement of the learned Lord himself. When remarking on a judgment given by Lord Eldin, than whom there was no greater ornament of the Scottish bench, but whose mind was affected before he retired from Office, the late Lord President observed how much it was to be regretted, that a judge should fall into such a condition, and said, that he at least bad taken steps to ensure, that it should not happen to himself, for he had placed his resignation into hands that would use it whenever his faculties showed symptoms of decay. As his noble Friend had, so did he absolve the executive government from being a party to this transaction. All that they could do, when the resignation was placed in their hands, was to appoint, as a successor, such person as they thought most fit for the situation. He quarrelled not with their appointment; but then he must say, that the circumstances that attended the resignation had occasioned very great conversation in Scotland—it certainly had excited very great suspicion. He was by no means sure, though he was quite ready to acquit the Government of having any hand, act, or part in the resignation—he was not, he said, quite sure, that the right hon. Baronet's defence would allay the suspicion which existed in Scotland.

Sir W. Rae

When he saw the motion Standing on the paper in the name of the noble Lord, he thought it was intended as an impeachment of the conduct of the Government, but that was disclaimed, and it turned out to be nothing more than a miserable attempt to cast reflections upon those who had long served their country in high and most important offices, an attack upon defenceless men—that was the avowed object of the noble Lord, and it was much strengthened by the speech to which the House had just listened. He (Sir W. Rae) was astonished that any man who had resided so long in Scotland as the hon. Gentleman who spoke last had, should come forward and pour coals of fire upon the head of a venerable servant of the public, who was about to retire into quiet life: it was a course he did not expect to have seen taken by him. It was the more ungenerous, because the charges were wholly unfounded. The mind of the venerable person whose name had been so often alluded to was as sound as it was ten years ago. [Mr. F. Maule had never stated that his mind was unsound.] He had certainly understood the hon. Gentleman to state, that the mind of the venerable judge was in such a state, that he was incapable of performing his duties. He (Sir W. Rae) said, that such a statement was unfounded in fact, for the Lord President had performed his duties up to the hour in which he had sent his resignation. By an act which he had had the honour of passing through the House, the heads of the courts in Scotland were required to preside in the Jury Courts; that of course was the duty of the Lord President, and he would affirm that that duty he had always performed — every case which properly came before the first division had been tried by the venerable judge. It was true that he was afflicted with a lameness in his limbs, which rendered it a work of difficulty for burn to get up the stairs to his court. He knew also that the venerable judge was afflicted with a degree of deafness. He knew also that he was seventy years of age, and that he had officiated upon the bench for thirty-eight years: all that he knew; but he also knew, that he had always most ably performed his duties. With respect to the judgment upon the Church question, it was not likely that it would be pleasing to the hon. Gentleman, but he and the House were aware that the judges were bound by oath to administer justice to all. As to the words attributed to the venerable judge on that occasion, he would only say that until they had been stated in that House he had never heard of them. But it was to be borne in mind that upon that occasion he was addressing certain persons who had been guilty of a gross breach of the law, and that the duty of reprimanding them had been cast upon him in virtue of his office; and he would say, without fear of contradiction, that a more able address than that delivered by the venerable Lord President had never been heard in the court. Allusions had been made to addresses of the bar to retiring judges. A testimonial of that kind of the most flattering description had been sent to the venerable judge upon his retirement from the faculty of advocates— a body comprising men of the first talent, Of great independence, and of all shades of politics—it was agreed to unanimously, and he would read it to the House. Sir,—The dean and faculty of advocates on occasion of your retirement from the Situation of Lord President of the Court of Session, are desirous of expressing their sense of the distinguished ability and integrity with which you have discharged the duties of that high office. During a period of more than thirty years, you have devoted your eminent talents and great attainments, with unwearied and successful assiduity, to the administration of justice. Your judicial character has been adorned by learning and eloquence of no ordinary kind, while the strict impartiality and high principle which have guided your judgments have commanded universal confidence and respect. The faculty feel gratefully bound to acknowledge that they have uniformly experienced at your hands that courtesy and kindness of demeanour which are so necessary to assist the exertions of the advocate, and which, as your example has shown, only confer additional dignity on the judicial station. The faculty trust that this sincere expression of their esteem and veneration for your character may not be unacceptable to you at a time when you are quitting the employments and distinctions of public life, and they earnestly hope that you may enjoy in your retirement the repose and happiness which will be the fit reward of your long labours and your many virtues. That address was passed not only unanimously but with cordiality. Who, then, would assail the character or a man enjoying such a character from those who knew him best—a man who was now preparing himself for that great change which at his years must soon arrive? With respect to what had been said as to negotiation or bargain with him for the appointment of a successor, he could only say that he had heard of it far the first time that evening. As to the fact of his resignation being placed in the hands of his son, he believed it was true, but that he had watched the mental faculties of his father was also true within his own knowledge, and had it been necessary the resignation would have been tendered without regard to party or personal ad- vantage; the character of the son was secure from calumny from the fact that he had twelve years ago been elected unanimously to the high station of Dean of Faculty. He would only further say, that a more unjust or ungenerous accusation against any public servant he had never heard.

Mr. O'Connell

would not have taken any part in this discussion, had he not been appealed to by the right hon. Baronet. He confessed he was of opinion, that this motion had not been brought forward in a manner calculated to insure it as much success as it would have met with, had the noble Lord not omitted another still stronger case that had occ rred in Ireland, of a particular judge, of whom he would say nothing more at present, than that he should bring his case before the House upon notice. The right hon. Baronet had appealed to his testimony in favour of Chief Justice Bushe, insinuating, as he understood the right hon. Gentleman, that it would have weight with the House; inasmuch as that learned judge was opposed to his (Mr. O'Connell's) politics. Now Chief Justice Bushe ought not to be opposed to any man in politics. He did not think it was saying much in Chief Justice Bushe's praise to allege, that he was opposed to any man in politics. The right hon. Baronet must have meant since his accession to the bench, for previously that learned gentleman and he agreed perfectly well in politics. [Sir J. Graham: While he was Solicitor-general, from 1805 to 1822?] Yes; he had always been the advocate of the Catholic claims. He began by opposing the union; he was the comrade and rival of the Grattans, the Currans, and the Ponsonbys of that time; superior to them in many qualities, as an orator, he was inferior to them in none. He had the happiest vocabulary he had ever heard; he was an excellent lawyer, and an accomplished gentleman. He was all this; but the Charles Bushe that was then was not the Charles Bushe that had recently resigned his seat upon the bench, since the Tory Ministry had come into power: He did not blame the judge. It was the decay of nature, a beautiful and mighty wreck, but, notwithstanding that, a wreck. He had adhered to the bench, after he had ceased to be useful, with a desperate and unhappy tenacity, until he could procure a successor more congenial to his political sentiments, than he was likely to have obtained, had he resigned a little sooner. He spoke of the matter with regret. For the last four or five years, Chief Justice Bushe did not sit at nisi prius. Although it was his duty, he allowed that duty to devolve upon a junior judge, thereby giving evidence of the consciousness of his own fading powers. Otherwise, why desert his duty? He certainly went circuit, but in Ireland it happened, that judges forfeited a portion of their salary, if they did not. At the Maryborough assizes which lasted five days, he took two of those days to decide a few cases of appeal from the registry, leaving thirty-five cases undecided, while the other business of the assizes was almost entirely undone. He did not impeach the integrity of Chief Justice Bushe. No; he did not allege even that he had shown the slightest partiality in his decision of those registry cases. But he did allege, that his faculties had so forsaken him at the time, that he was incompetent to the discharge of his judicial duties. Everybody had observed that, and his best friends had urged him to resign; but he refused to do so, and held his place, until there was a change of Administration. It was melancholy, that these things should occur, while they showed with how much constitutional jealousy they ought to be viewed. Chief Justice Bushe, by his last act, proved, that he was opposed to him (Mr. O'Connell) in politics, and, therefore, to the popular politics of Ireland. It was an act which bespoke a foregone conclusion. He did not see why there should have been such a clamour of triumph on the other side of the House at the noble Lord's motion, when these facts were unquestioned, and, in his mind, undoubted. Addresses from the bar had been spoken of, but was there, let him ask, any great weight to be given to addresses from the bar? Was there no fellow-feeling on the bench to influence the getting up and signing of those addresses, or was it quite prudent for a barrister in one court, to refuse to be a party to an address to the judge of another? Besides, few would like to assail a man in decrepitude and decay. After all, too, he believed, that the assembly which agreed to compliment was not very numerous, and Mr. Dickson, the father of the bar, was nearly alone. It was with pain he felt himself compelled to say these things. He had not been stingy in his praise of those qualities which had distinguished Chief Justice Bushe as a lawyer and a gentleman, and he deeply lamented that he should form one of those unhappy examples of partisan tenacity to the bench, which prevailed in this country. Another instance of a similar character, a glaring instance, had occurred in Ireland, of which, as it would shortly be the subject of debate in that House, he would say no more; but as regarded this, he conceived that the noble Lord had acted perfectly right in bringing it as a constitutional question under their consideration, and he sincerely hoped, that the discussion which had arisen upon it would have the effect of terrifying or persuading the friends of judges to get them to resign when they were no longer competent to discharge their judicial functions, and above all, to prevent them from continuing in office until the moment when, by resigning, they could afford to a particular political party some political advantage.

Mr. Shaw

said, that after the eulogy which had been passed upon the character of Chief Justice Bushe, he had only to make a very few remarks with reference to what was matter of fact. In all that the hon. and learned Gentleman opposite had said, regarding the eloquence and eminence of Chief Justice Bustle, he fully and cordially coincided, but from what had fallen from him regarding the declining abilities of that learned judge, he totally disagreed. He believed, that until the last circuit which Chief Justice Bushe went, which was the summer circuit of last year, there had been no evidence of his abilities having so far declined as to prevent the due performance of his duties. Then it was, that he himself had become aware, that his health was declining, and then it was, that he intimated to his friends and acquaintances—but without reference to what the political character of the Government was or might be, that in the following term, he would take his seat in the Queen's Bench, for the last time. He was fully convinced, and since he saw the notice of the noble Lord on the paper, he had availed himself of every opportunity of making inquiry on the subject—he was fully convinced, that under any circumstances, Chief Justice Bushe would have sent in his resignation previous to the last term of last year. He was surprised, therefore, at the boldness of the noble Lord in bringing forward a charge of such a nature as his motion implied. He would not retaliate, by referring to the case of Lord Plunket and Lord Campbell; but this he must say, that if public opinion in Ireland was at all indicative of the truth, it would appear that terms had been offered by the late Government to this very individual, Chief Justice Bushe, to induce him to resign. He moreover believed, and he had good reason for believing, that an overture of a similar nature had been made to Judge Johnstone, amounting to offers of appointments for two of his sons. And without meaning to cast any reflection upon the Government of the noble Lord, who had provoked every censure which had fallen from his side of the House on this subject, he must be permitted to say that there never before, under any Administration, had been so great a clearance of the public offices in Ireland as that which had been effected by the late Government during the time they were dragging on a political existence. The police, the stipendiary magistracy, in fact every department of the public service, bore evidence of the exercise of Whig Government patronage to an extent which, he believed, was unparalleled within the memory of any living individual. Under these circumstances he was surprised at the motion of the noble Lord, and he would leave it to the House to say whether he was likely to gain anything by having brought it forward.

Mr. O' Connell,

in explanation, said he did not allude to the last summer circuit, but to the March circuit, and the circuit before that.

Mr. Wakley

observed that this motion had certainly given rise to a most edifying discussion. It only proved that when certain people, at certain times, and in certain places, fell out and disagreed, then it happened that it allowed others to know what was going on behind the curtain, and to learn something of the motives that actuated political parties. He must own that he was exceedingly puzzled to know what could be the motives of the noble Lord in bringing forward this motion. It was his habit to mark the notices of motion in which he did not take any particular interest, with certain annotations; for instance, some he noted as "fudge," others as "nonsense;" and it was curious that he should have marked the notice of the noble Lord "suicide." Having so marked it, he thought it might have called for his official interference. The noble Lord had brought forward this notice for the purpose of its working as a caution to judges against a repetition of that conduct which he attributed to the judges in question. He himself knew nothing further of the circumstances of these cases than what had been stated to the House that night. He did think that however blameable these parties might have been, yet there were other parties who, for a long series of years, had been guilty of worse conduct in their appointments, with reference to the bench, than the judge in question, even admitting all the allegations made against them to be true. Was it right, he asked, that the judgment seat should he made a political institution? Was it not scandalous to the characture of the Legislature—was it not disgraceful to the intelligence of the nation —was it not a reflection upon he good sense of the country, that the appointments to the judgment seat should be determined by the political character of the parties to be placed upon it? He made no complaint of the last appointments that had occurred in this country—he made no complaint against the existing Administration—they had the example of other Administrations before them. They saw, however, that a change in the Administration led to changes in the highest court in the kingdom. In consequence of the late changes in the Administration there was one judge —the Lord Chancellor—who was universally acknowledged to be an ornament to his profession, who was universally admitted to be a judge who had performed the duties of his office in the most exemplary manner, and yet he was under the necessity of leaving that judgment-seat, to the great detriment of the public service, to make way for a political successor? The practice in this respect was that of former Administrations. But then he said, let not this discussion end without a useful lesson being drawn from it. He trusted that the present Administration, and that the right hon. Baronet who was at the head of the present Administration, would not in future, in the disposal of judicial situations, permit himself to be influenced by political views. Let legal qualifications alone entitle a person to ascend the judgment-seat, so that his decisions, when there, might not be tainted by politics.

Sir Robert Peel

considered that the warning given by the hon. Gentleman was not one of which the Government stood in need. He was prepared to defend every appointment that had been made; and he did not think that her Majesty's Government was open to the imputation cast by the hon. Gentleman upon it. The name of Lord Corehouse introduced into this discussion reminded him that the appointment was made by himself. Mr. Cranstoun had been placed upon the judge's bench by him. Mr. Cranstoun had been at the time among the most eminent ornaments of the bar, and that gentleman was selected by him for the judicial bench, solely on account of his professional distinction. He had passed over and disregarded the political claims of men who followed that line of politics to which He himself adhered; and unhesitatingly he sought to avail himself of, and to secure to the public, the valuable services of Mr. Cranstoun. He was equally prepared to defend the appointments to judicial offices that had been made since he came into office. There was the appointment of Mr. Cresswell. No objection, he thought, could be made to that. He thought, and he was sure justly, that none had higher professional claims, and that, too, without any reference to his political connections. That was his opinion, and he found it ratified by the public voice. The present Government had also the disposal of two other appointments in the courts of equity in this country. These two appointments took place under an Act of Parliament of last Session, passed under circumstances that the House would probably bear in mind. There were two judicial offices that were regarded as great prizes—as great distinctions in the profession. The Government was as sensible as the right hon. Gentleman could be of the high judicial and professional services of the late Lord Chancellor. As a judge he was always to be spoken of with the highest respect. And one of the first acts of the Government was to tender one of these situations to Lord Cottenham. The office was tendered to Lord Cottenham. He could quite understand and appreciate the motives from which it was declined. He might, indeed, fairly own, that they could scarcely have expected, according to the ordinary usages of the profession, that Lord Cottenham would have undertaken the duties of the office; but, at the same time, they did not forego the opportunity, if Lord Cottenham would have waived that regard to usage, to show that they attached great value to the continuance of his judicial labours. If their offer had been accepted, it would have made a saving in the public expenditure, and it would have secured to the public the great professional knowledge of that learned Lord. He now asked the hon. Gentleman whether the present Government was properly open to that reproach which he said was applicable to all Governments? He would next proceed to give an explanation as to all he knew of the retirement of the two Gentlemen whose names had been mentioned The noble Lord had acquitted the Government of all blame in those transactions. The noble Lord's motion, then, was directed against the judges themselves. When, then, he heard the bar in each country express unanimously, in their addresses to their judges, the hope that, in retiring into private life, they might enjoy repose and unmitigated happiness for the remainder of their days, it was painful to think that that repose was to be interfered with, and that happiness poisoned, by a debate in the House of Commons which conveyed reflections upon them. He was not himself at all prepared to expect the resignation of his valued friend—Lord Chief Justice Bushe. He had not heard before that his powers were so weakened as to render his continuance in office painful to him; but when it was intimated to him that the Chief Justice's age was seventy-two years—that he had been in the public service for so many years —having filled the office .of Solicitor-general from 1805 to 1822, and since then on the bench—he thought that that eminent individual having served under an administration which was of the political party to which the noble Lord belonged, he thought that mere circumstance ought to have had some weight with the noble Lord; he thought that the noble Lord might have recollected the lustre that had been shed upon the Irish administration by the united abilities of a Plunket and a Bushe, and these circumstances would, at least, have constituted a reason why the latter should have been exempted from such a proceeding as this. When the Lord Chief Justice expressed a desire to retire, and added that he was seventy-two years old, and had given twenty years' service on the bench, he conceived the request a rational one, and that it might well be complied with, with every consideration for the public economy and the public service. But that was all the transaction. There was no stipulation of any kind. There was no encouragement to him to retire. On the contrary, recollecting the Chief Justice's services and his abilities, he could not but think with the deepest regret that he should not continue on the bench. So far from wishing the Chief Justice to retire, or to benefit by his retirement, it was his desire to secure to the public his services for a longer period. As to an intimation to him not to continue in office, it was one that Chief Justice Bushe would, if made to him, from the dignity and purity of his mind, have repelled with disgust. The age of the Chief Justice was seventy-two years. He had been twenty years on the bench. Could he, then, read that cordial and affectionate address presented to him by the whole bar of Ireland—for it was agreed to at a publicly convened meeting of the profession; could He, then, think that he, who said he was the advocate of "justice to Ireland," should be the first man to throw imputations upon that profession to which he belonged—that he should describe that profession (the bar of Ireland) as one whose address to a retiring judge was to be regarded as mere waste paper—,as that, in which some had the meanness to flatter, and others not the courage to dissent. With respect, also, to the retirement of the Lord President, he was equally ready to enter into an explanation as to all the circumstances connected with it. The appointment of the son was not in the slightest degree inconsistent with the retirement of the father. The son was appointed solely through the application of that rule which the hon. Gentleman contended should be applied rigidly, and according to which he was raised by the bar of Scotland to their most honourable office—the Dean of Faculty. He believed that the bar of Scotland admitted that no more distinguished advocate could be raised to the bench than was Mr. Hope. The hon. Gentleman, however, asked, as a charge against his side, "Did not the Lord President signify a wish to retire in 1834?" He declared to the hon. Gentleman —singular as it might seem—that be had not the slightest recollection of any such propo- sal. At the same time he did not deny that it might have been made. But as to his premeditatedly refusing to accept it, he could assure the hon. Gentleman that he had not the slightest recollection of any such proposal having been made. But suppose it had been made, how utterly inconsistent was the conduct imputed to him on that occasion with the motives which it was alleged influenced him in this case. It was clear that his tenure of office in 1835 was very precarious. After the vote on the Speakership, it was pretty evident what his fate would be. It was not too much to expect that the hon. Gentleman's foresight in 1840 was not less distinct. His confidence in the duration of his administration must then have been somewhat shaken—the brilliancy of the official prospect must then have been somewhat clouded, and he should have thought that the previous transactions of 1839, and the retirement of the Government, because it did not "possess the public confidence," furnished some bitter forebodings. Yet the hon. Gentleman now charged him with not receiving the proposal of the Lord President to retire in 1835. So that the hon. Gentleman's accusation amounts to this, "You had a plausible ground for accepting the retirement of a judge during your administration, which you must have known would be short-lived, but you had the virtue he resist his retirement." If the hon. Gentleman (Mr. Wakley) thought that this was the sum of the charge against his Administration, he ought to take his place again on his side of the House. He asked the hon. Gentleman to whose advantage was it that these disclosures had been made? If the hon. Gentleman's conscience was satisfied that the history of these appointments redounded altogether to the credit of his (the Ministerial) side of the House, and not to that of their opponents, he surely must come back to his old position. But supposing he had given the opinion which had been imputed to him, and had said to the Lord President, "You mistake your strength—your infirmities are not what you suppose; your reputation is high, and there is still an interval which you may apply to the public service. My advice to you, as a friend, is not to retire." There was nothing inconsistent in this with the present conduct of his Administration; and if in 1839 he was called upon to reflect upon the advice he had given to the Lord President in 1835 to remain in office, and to devote some portion of his remaining years to the public service, he should have been reconciled to the decision at which he had arrived by hearing the hon. Gentleman (Mr. Fox Maule) then Under-Secretary of State, burning with official zeal, declare that he was "astonished to hear the statement made with regard to a judge of the Court of Session." [Sir James Graham: Can that be Fox Maule That was the name prefixed to these observations. The hon. Gentleman went on to say," that he had heard for the first time of a distinguished and eminent judge being afflicted with mental incapacity. That his physical powers might be somewhat impaired he could believe, but that his mental faculties were inadequate to the discharge of his duties he was prepared to deny." Did they (the Opposition) not account then for this venerable judge's tenacity of office? When, in 1839, the Under-Secretary of State undertook to answer for all his mental faculties; when he, a Scotchman, conversant with all that occurred in that country — perfectly familiar with all that passed in what he called their "narrow circles"—might not this judge fairly reason in the following way. —" It is true I ought to retire, but such is my gratitude to my fellow-countryman, who has borne testimony to my continued powers, that I shall remain at my post, lest by acting otherwise I should myself be the first to question my competency." And what, after all, was the charge of incapacity which, it appeared, the Minister overlooked? Why, that this able judge used some expression betraying a want of temper in pronouncing his opinion on one of the most important questions ever decided in the courts of Scotland. If removal was to take place on such grounds, the Crown could take no course so fatal to the independence of the judicial character. If every question of retirement were submitted to such an ordeal as was attempted to be thus set up the exalted character of the judges would be materially impaired. He left the whole question to the deliberate voice and judgment of the public. The hon. Member for Finsbury stated that when he came to the notice of the noble Lord, he marked the word "suicide" against it. Notwithstanding all the horror which the crime of suicide was calculated to inspire, there were sometimes circumstances connected with it, such as those in the case of Curtius, which in some measure entitled it to sympathy, when it was committed with a view to promote great public interests. To that species of sympathy, and to all the praise which such conduct was calculated to excite, the noble Lord who brought forward the present motion was entitled. The noble Lord, in his zealous and anxious desire to support the constitutional appointment of the judges, having failed to establish a case agaiost others, with an heroic devotion seldom paralleled, sacrificed himself by the exposure which he made of the practices of his own party.

Lord J. Russell

rose to reply. He said, the question which he had put was a simple one, yet, simple as it was, only one person had made any reply to it during the debate. The right hon. Baronet, the First Lord of the Treasury, instead of meeting the question, had adverted to other cases, and stated that he could retort cases upon the other side which were liable to great reproach, but as to anything like a defence of the charge which had been made, none had been attempted, except by one right hon. Gentleman on the opposite side. The statement which he (Lord J. Russell) had made was, that two judges, high upon the bench, who were unfit from infirmity, whether mental or bodily, to continue to hold their offices, yet that they, notwithstanding, still continued to hold them to accommodate the party in the State which was expecting to come into power. The second part of his statement was, that if such were the case, and if those who held judicial appointments continued to retain them for political purposes, looking to the majorities and minorities of that House, with calculations of one, one night, and two another night, holding themselves ready to resign as the occasion might occur, such a course was highly unbecoming, and if persisted in was calculated very much to lower the judicial character in the eyes of the public. As to the first instance, he (Lord J. Russell) had only urged that there was strong ground of suspicion; but much had since been said on that (the Ministerial) side of the House which tended to corroborate and give strength to these suspicions. It was stated that the Lord President found some difficulty in ascending the steps of the Court of Session; that he was in the 79th year of his age; and that he was afflicted with deafness. Were these afflictions sudden visitations? Did they not require a considerable time to be contracted? If so, was it not natural to conclude that the delay which took place with respect to the resignation was caused with a view to the suspected change in the Administration; As to the case of the Lord Chief Justice, all that had been uttered in the course of the debate tended to confirm the suspicions which the period of his resignation was calculated to excite. According to the statement of the right hon. Gentleman the Recorder of Dublin, it was only last summer that the Lord Chief Justice began to be conscious of his infirmities. If the right hon. Gentleman made that statement from a personal knowledge of the fact, it would, of course, remove the suspicion which the resignation had created, and the course pursued by the Lord Chief Justice must be pronounced to be a proper one. The statement of the right hon. Gentleman did not, however, agree with the other statements which had been made in this respect, nor did the statement made by the right hon. Baronet the Secretary for the Home Department, appear at all conclusive. Did the present Government mean to assent to the doctrine that it did not misbecome the high and exalted character of a judge of the land to watch the oscillation of political parties in the State, and to resign in favour of one of those parties with a view to supporting it? For his own part he was satisfied that some of the parties appointed to judicial offices by Lords Melbourne and Cottenham would think it otherwise than highly unbecoming to speculate in Ministerial changes dependent upon the majorities of that House. It appeared strongly suspicious that such was not the case in the instances under discussion; and, acting upon the impression, he would persevere in his motion, and endeavour, if possible, to ascertain whether or not these singular coincidences of resignation and change of Ministry occurred, as was alleged, in the common course of events. With respect to the case of Lord Corehouse, as far as he was connected with it, the fact was this:—When the resignation was tendered it was not done absolutely and unconditionally; and the Under Secretary of State was directed to inform his Lordship that the resignation could not be so accepted, and that no promise could be given; that if he was desirous of resigning he might do so, and if he was willing to stay he might stay. As to what had been said of Lord Plunket, the appointment was one totally different. Would any one say, that the office of Lord Chancellor was similar to that of a judge? He would not then enter into the reasons. The fault in the case of Lord Plunket, if there was any, was that he remained too long. Then with respect to the gentleman who succeeded Lord Plunket, it would be admitted that be was a man who held a very high standing in his profession, one eminently versed in a knowledge of the law, and also well acquainted with the political and legal information necessary to give him a high character in that House. Such a man it was who succeeded Lord Plunket at a period when it was very difficult, and a matter of much uncertainty, to surmise what party would be the gainers by the projected dissolution. What were the terms upon which Lord Campbell accepted the Chancellorship of Ireland? The condition was that he would accept it, but without the usual retiring pension; yet such was the man whom the Secretary of State for the Home Department had been so ready to attack. Had Lord Campbell any precedent for the course which he adopted on that occasion? In 1834, Sir Edward Sugden was apppointed to the same office when the Administration was less likely to be permanent, the Government never having had a majority on any question. Sir Edward Sugden held the appointment for four or five—no, for three months. Had he on that occasion made the same condition with respect to it that had been made by Lord Campbell? He had made no charge against the right hon. Baronet the Member for Tamworth, because of the appointment of Sir Edward Sugden to the Lord Chancellorship, nor were appointments to that office mixed up with the question then before the House. If the hon. Member for Finsbury, could bring himself to believe that there was nothing to suspect in the coincidence of the resignation, why, then, he would be warranted in accepting the right hon. Baronet's invitation, and going over to the other side of the House. The case was before them. The House would deal with it as it pleased; but for his own part he found it difficult to come to the conclusion that the judges had not delayed their resignations for the purpose of favouring a particular party after they had been unfitted for discharging the duties of their office.

The House divided:—Ayes 75; Noes 148; Majority 73.

List of the AYES.
Aglionby, H. A. Marshall, W
Aldam, W. Marsland, H.
Armstrong, Sir A. Maule, rt. hon. F.
Baring, rt. hon. F. T. Morris, D.
Barnard, E. G. Mostyn, hn. E. M. L.
Bernal, R. Muntz, G. F.
Blake, M. Murray, A.
Bowring, Dr. O'Connell, D.
Brodie, W. B. O'Conor Don
Brotherton, J. Palmerston, Viscount
Busfeild, W. Philips, M.
Colborne,hn. W.N.R. Plumridge, Capt.
Dalrymple, Capt. Powell, C.
Duncan, G. Rawdon, Colonel
Dundas, D. Redington, T. N.
Ebrington, Viscount Russell, Lord J.
Elphinstone, H. Scholefield, J.
Ewart, W, Scott, R.
Ferguson, Colonel Somerville, Sir W. M.
Fitzalan, Lord Stansfield, W. R. C.
Forster, M. Stuart, W. V.
Fox, C. R. Strickland, Sir G.
Gill, T. Strutt, E.
Gore, hon. Capt. Tancred, H. W.
Granger, T. C. Thornely, T.
Guest, Sir J. Tuite, H. M.
Hastie, A. Wakley, T.
Hatton, Capt. V. Ward, H. G.
Hill, Lord M. Wason, R.
Holdsworth, J. Watson, W. H.
Horsman, E. Wawn, J. T.
Howard, hn. C. W. G. Williams, W.
Hutt, W. Wilson, M.
Jardine, W. Wood, G. W.
Johnson, General Wrightson, W. B.
Johnston, A. Yorke, H. R.
Labouchere, rt. hn. H. TELLERS.
Mangles, R. D. Tufnell, H.
Marjoribanks, S. O'Connell, M. J.
List of theNOES.
Acland, T. D. Bruce, Lord E.
A'Court, Captain Bruce, C. L. C.
Ackers, J. Buckley, E.
Adare, Viscount Bunbury, T.
Alexander, N. Carnegie, hn. Capt.
Allix, J. P. Chute, W. L. W.
Antrobus, E. Clerk, Sir G.
Ashley, Lord Clive, hon. R. H.
Astell, W. Cochrane, A.
Baillie, Colonel Cockburn, rt. hn. SirG.
Baillie, H. J. Collett, W. R.
Baird, W. Colvile, C. R.
Balfour, J. M. Corry, rt. hn. H.
Baring, hon. W. B. Courtenay, Viscount
Baskerville, T. B. M. Cripps, W.
Beckett, W. Crosse, T. B.
Beresford, Major Damer, hn. Colonel
Bodkin, W. H. Denison, E. B.
Boldero, H. G. Dickinson, F. Ho
Borthwick, P. Douglas, J. D. S.
Botfield, B. Drummond, H. H.
Brainston, T. W. Egerton, W. T.
Broadley, H. Eliot, Lord
Broadwood, H. Escott, B.
Ferguson, Sir R. A. Marsham, Viscount
Ferrand, W. B. Martin, C. W.
Fitzroy, Capt. Milnes, R. M.
Ffolliott, J. Mordaunt, Sir J.
Forbes, W. Morgan, O.
Forman, T. S. Mundy, E. M.
Fuller, A. E. Neeld, Joseph
Gaskell, J. Milnes Neeld, J.
Gladstone,rt.hn.W.E. Neville, R.
Godson, R. Nicholl, rt. hon. J.
Gordon, hn. Capt. Northland, Viscount
Gore, M. O'Brien, A. S.
Goulburn, rt. hon. H. Palmer, G.
Graham, rt. hn. Sir J. Peel, rt. hon. Sir R.
Greenall, P. Peel, J.
Greene, T. Pigot, Sir R.
Grimsditch, T. Polhill, F.
Grimston, Viscount Praed, W. T.
Grogan, E. Pringle, A.
Halford, H. Pusey, P.
Hamilton, J. Rae, rt. hon. Sir W.
Hamilton, W. J. Rashleigh, W.
Hamilton, Lord C. Reade, W. M.
Harcourt, G. G. Richards, R.
Hardinge,rt.hn.SirH. Rous, hon. Capt.
Hardy, J. Ryder, hon. G. D.
Heneage, G. H. W. Sanderson, R.
Henley, J. W. Sandon, Viscount
Herbert, hon. S. Scarlett, hon. R. C.
Hodgson, R. Scott, hon. F.
Hogg, J. W. Shaw, rt. hon. F.
Hope, hon. C. Sheppard, T.
Hope, G. W. Sibthorp, Colonel
Hughes, W. B. Smollett, A.
Inglis, Sir R. H. Somerset, Lord G.
Jermyn, Earl Somerton, Viscount
Johnson, W. G. Stanley, Lord
Jones, Capt. Stewart. J.
Kemble, H. Taylor, T. E.
Kirk, P. Taylor, J. A.
Knatchbull, rt. hon. Sir E. Tennent, J. E.
Thesiger, F.
Knight, F. W. Trench, Sir F. W,
Leicester, Earl of Trotter, J.
Lincoln, Earl of Verner, Colonel
Litton, E. Whitmore, T. C.
Lockhart, W. Wodehouse, E.
Lowther, J.H. Wortley, hon. J. S.
Lygon, hon. General Young, J.
Mackenzie, W. F. TELLERS.
Mainwaring, T. Fremantle, Sir T.
March, Earl of Baring, H.

Adjourned.