HC Deb 11 February 1842 vol 60 cc301-9
Mr. Fox Maule

moved That an humble address be presented to her Majesty, that she will be graciously pleased to give directions that there be laid before this House, a return of the number of jury cases in the first division of the Court of Session, from the 1st day of January 1839, till the 31st day of July 1841; specifying those in which the late Lord President of the Court of Session presided, and those in which any other and what judge presided. With reference to the debate of last night, he begged to say that, if he had fallen into any error in the statements which he had made with respect to the learned individual above alluded to, he was most ready to offer every compensation in his power. These returns, however, to which he hoped there would be no objection, would put the public in possession of the real merits of the case, and of the truth or falsehood of his assertions.

Sir James Graham

said, that it was not his wish to revive the debate of last night, but he understood this motion to have been induced by a difference on a matter of fact, which had arisen between the right hon. Gentleman who had sat down, and the learned Lord Advocate (Sir W. Rae), and for the purpose of showing whether the right hon. Gentleman had, through misapprehension, made an erroneous statement upon a subject upon which, undoubtedly, he had expressed a very strong belief. No one who knew the right hon. Gentleman, he was persuaded, could suppose, that he would make a statement which he did not believe to be true, but he must say, on that side of the House, that it was impossible to accede to the motion which had now been made. The motion of the noble Lord (Lord John Russell), it appeared to him, had implied an attack upon the learned Lord President of the Court of Session; but this appeared to him to import even a more direct attack. As he had said before, it was not his wish to revive the discussion of the subject. On the motion of the noble Lord, the House had expressed its opinion most unequivocally, and he had no doubt, that if the right hon. Gentleman pressed the present motion to a division, the House would confirm their decision of the previous night, for he should feel it to be his duty to oppose the motion, even if the House were called on to divide.

Mr. Fox Maule

said, that after the refusal of the right hon. Baronet to produce the return for which he had moved, he should decline to press the question to a division; but at the same time he must take the opportunity of saying, that his purpose had been equally answered, so far as he was concerned, whether his motion was acceded to or not, because it appeared to him, that the refusal of the right hon. Baronet was a ready admission, that he was not wrong in the statement which he had made. Although he was not desirous of renewing the discussion, he must say, that the right hon. Baronet had not taken the course which he considered the most prudent for his own purpose. He did not think, that the returns would at all affect the character of any person, but they would merely state what was the fact, upon which a difference existed—a matter of fact upon which he conceived the public had a right to be informed.

Mr. Wakley

regretted, that the right hon. Gentleman should be content to withdraw his motion.

Mr. F. Maule:

I do not withdraw it; I only said I would not press it to a division.

Mr. Wakley

said, at all events, he could not but express his astonishment and deep regret, that a motion of this kind should be opposed by the Government. The adoption of such a course by the dominant faction, in his mind, foretold the most awful danger to the institutions of this country. The party opposite were a most powerful party, and maintained a large array in that House: they were supported by the aristocracy of England; the people of England paid the judges, and was it to be understood, that the party now in power threw a shield over the judges, and would not allow their conduct to be investigated by that House? In the present case an allegation of the most serious character had been made as to the conduct of a judge in the discharge of his duties. It was said also, that he had held office for a political purpose, while in a state of mind which rendered him incapable of discharging the duties imposed upon him, and which the community were entitled to demand of him. On the other side, the right hon. and learned Lord Advocate declared those statements to be wholly and entirely unfounded. This was a question in which the issue was not only between the parties in that House, but between one of those parties and the people of England. He insisted on the right of the people of England to know the truth or falsehood of this allegation; and he declared, that he was at a loss to understand the principle of the policy of the Government which had induced them not to accede to this motion. What was the return moved for? It was a return of the number of jury cases in the first division of the Court of Session, from the 1st of January, 1839, to the 31st of July, 1841; specifying those in which the late Lord President of the Court of Session presided, and those in which any other and what judge presided. Was there anything unfair in that motion? or could there have been any motion of a more candid or of a more honest nature? It related simply to a matter of fact, and not to a matter of inference; and was that House to be told, that the executive Government refused to comply with such a motion? What might the judges infer from such a course? That it was no consequence how much they might neglect their duties—that they might attend or not to the execution of those functions which were properly demandable of them, and that, of whatever neglect they might be guilty—there was no fear of investigation or reprehension from that House. The right hon. Gentleman near him (Mr. Fox Maule) had said, that his duties had been neglected by the judge, and performed by others. The hon. and learned Lord Advocate had contended, that that judge had not been absent on one occasion. He reiterated that statement, and he made that allegation upon his honour, as a gentleman and as a Member of Parliament. If under these circumstances the Government refused to comply with the terms of the motion, only one impression could exist in the public mind, and that would be, of the entire truth of what had fallen from the right hon. Gentleman the Member for Perth. He did hope and trust, that the right hon. Baronet would see the propriety of altering his decision, and would see at once, that there could be no objection to the terms of the motion being complied with.

Mr. Roebuck

having, in reality no feeling upon this matter, either as regarded one party or the other, would beg to suggest to the right hon. Baronet the peculiar position in which that House stood with reference to the administration of justice. The judges could not be removed by the Crown, but on an Address of the two Houses of Parliament, who were therefore the supervisors of their conduct, and of their mode of discharging their functions. It should be a matter of course that this motion should be complied with. He put it as a constitutional point of law, that when one of the Func- tionaries of the land did not properly discharge his duty, or was supposed not to discharge his duty properly, it was a matter of course that the House should have all requisite information upon the subject. Cæsar's wife was above suspicion; the judges should also be above suspicion. But he asked the right hon. Baronet whether it were possible, that under the existing circumstances the learned judge, whose character had been attacked, could be above suspicion if the present motion was rejected.

Sir Robert Peel

said, that the possibility or propriety of acceding to any particular motion could not be decided upon with reference to the mere form of that motion, but the object and the spirit of it must be taken into consideration. The ground on which he had opposed the motion of the noble Lord last night was, not that in itself there could be any especial objection to its being granted, though there was a departure from the usual course in producing the terms in which a judge resigned, but in reference to which it might be observed that a judge, in making stipulations, need never commit them to paper, but might couch his official letter of resignation in the commonest and plainest terms; but the ground on which he had opposed that motion was, that he had thought that it conveyed a reflection, an unjust reflection, against two judges, whose conduct was perfectly above reproach, and free from suspicion. The right hon. Gentleman, who had brought forward the present motion, had made a statement which had been contradicted on that side of the House, and upon this point a difference of opinion prevailed.

Mr. Fox Maule

begged to explain. He had stated that during a certain time a retired judge had not sat, where he ought to have sat, in a particular court. The learned Lord Advocate had stated that this assertion was totally without foundation.

Sir Robert Peel:

The right hon. Gentleman had brought forward a motion tonight which was implied in that of the noble Lord; but he felt that the course of the debate last night had been so completely against him, that he had now declined going to a division. In point of fact, the debate of last night had been entirely unfavourable to hon. Gentlemen opposite; but the right hon. Gentleman was so alarmed by the course which he had taken, that he was now doing all he could to resume the discussion which had been already once terminated. The motion now made was, in point of fact, tantamount to that which had been made last night; it was founded on the same principle, and he must say, that if the Government had consented to the production of these returns, after what had occurred last night, he believed that it would be thought that they acquiesced in the reflections attempted to be cast upon the late learned Lord President. The Lord President had retired from office, and no longer held any public situation; and though he agreed with the hon. and learned Member for Bath that that House did exercise, and ought to exercise, a control over the conduct of the judges, yet he was certain that if they chose on every occasion to call for returns with respect to any particular judge, and to execute the power which they no doubt possessed, the effect of it would be to prejudice the administration of justice. He took this motion in connexion with that of last night, and he must say that he thought an acquiescence in it would be implying a reflection on the judge, to which he felt satisfied that he was not open.

Mr. O'Connell

would say one word only upon this subject. He thought that as the fact upon which a difference of opinion existed was one upon which authentic information could be given, it ought to be secured. Her Majesty's Government could authenticate the statement which had been advanced, and why did they not do it? Because they were afraid of the result. The practice of removing a judge from one court to make him chief of another court was objectionable, but it was still worse to make the appointment of judges anything like hereditary, and that a father should be succeeded by a son. [No, no.] He had understood this was the case. At any rate, as a judge was paid by the public, had it not a right to know whether he had earned his salary by his attendance in court? It was a great evil that the motion was to be set aside, not on its merits, but on some technical ground. All that he required was, that the facts of the case should be obtained and laid before the House. When excuses were made for non-attendance in court, it should be known whether this arose from habitual or accidental ill health.

Mr. Hope Johnstone

was understood to say, that the impression on his mind was, that the statement of the right hon. Member for Perth was greatly exaggerated. His own belief was, that the President was prevented from attending in court from an accidental attack of illness which any man was liable to, and not from any continued infirmity. He confessed that he did not feel any objection to the production of the return, and should, therefore, not vote against it. He could not help expressing his regret that the right hon. Baronet should feel himself called upon by circumstances to resist the motion.

Sir R. Peel

wished it to be distinctly understood that he did not resist the motion from any fear of the result.

Mr. Hope Johnstone

did not imagine that the opposition of the right hon. Baronet to the motion arose from anything of a personal feeling, but from some matter of general policy.

The House divided—Ayes 113; Noes 139: Majority 26.

List of the AYES.
Armstrong, H. A. Granger, T. C.
Aldam, H. A. Grey, rt. hon. Sir G.
Armstrong, Sir A. Grosvenor, Lord R.
Barclay, D. Guest, Sir J.
Baring, rt. hon. F. T. Hall, Sir B.
Barnard, E. G. Harris, J. Q.
Bell, J. Hastie, A.
Bernal, R. Hatton, V.
Blake, Sir V. Hawes, B.
Bowes, J. Hay, Sir A. L.
Bowring, Dr. Heathcoat, J.
Brodie, W. B. Heneage, E.
Brotherton, J. Hill, Lord M.
Browne, hon. W. Hindley, C.
Bryan, G. Holdswortb, J.
Buller, C. Howard, hn. C. W. G.
Busfield, W. Howard, hon. H.
Byng, rt. hon. G. S. Hutt, W.
Childers, J. W. Jardine, W.
Clay, Sir W. Johnson, Gen.
Colborne,hn.W.N.R. Johnstone, A.
Cowper, hon. W. F. Labouchere, rt. hn. H.
Dalrymple, Capt. Larpent, Sir G. de H.
Dawson, hon. T. V. Layard, Capt.
Denistoun, J. Leader, J. T.
Duncan, G. Mangles, R. D.
Duncomhe, T. Marshall, W.
Dundas, D. Martin, J.
Easthope, Sir J. Maule, rt. hon. F.
Ebrington, Viscount Mitchell, T. A.
Elphinstone, H. Morris, D.
Ferguson, Col. Muntz, G. F.
Fitzalan, Lord Napier, Sir C.
Forster, M. O'Brien, W. Smith
Fox, C. R. O'Connell, Dan.
French, F. O'Connell M. J.
Gibson, T. M. O'Connell, J.
Gill, T. O'Connor, Don
Gordon, Lord F. Ogle S.C. H.
Palmerston, Visct. Strickland, Sir G.
Pendarves, E. W. W. Strutt, E.
Philips, M. Thorneley, T.
Pinney, W. Towneley, J.
Plumridge, Capt. Troubridge, Sir E. T.
Ponsonby, hon. J. G. Tufnell, H.
Powell, C. Tuite, H. M.
Rawdon, Col. Villiers, hon. C. P.
Reade, W. M. Wall, C. B.
Redington, T. N. Ward, H. G.
Ricardo, J. L. Wawn, J. T.
Rundle, J. White, L.
Russell, Lord J. White, H.
Scholefield, J. Wilson, M.
Scott, R. Wood, G. W.
Smith, rt. hn. R. V. Yorke, H. R.
Sombre, D. O. Dyce TELLERS.
Somerville, Sir W. M. Roebuck,
Stansfield, W. R. C. Wakley, T.
List of the NOES.
Acland, Sir T. D. Drummond, H H.
Acland, T. D. Duncombe, hon. O.
Ackers, J. Egerton, W. T.
Adare, Visct. Eliot, Lord
Alexander, N. Emlyn, Viscount
Allix, J. P. Escott, B.
Antrobus, E. Feilden, W.
Arkwright, G. Ferrand, W. B.
Ashley, Lord Fitzroy, Capt.
Astell, W. Follett, Sir W. W.
Baillie, Col. Forbes, W.
Baillie, H. J. Fuller, A. E.
Baird, W. Gaskell, J. Milnes
Balfour, J. M. Gladstone, rt. hn.W.E.
Baring, hon. W. B. Gordon, hon. Capt.
Baskerville, T. B. M. Goulburn, rt. hon. H.
Beckett, W. Graham, rt. hn. Sir J.
Bell, M. Grant, Sir A. C.
Beresford, Major Greenall, P.
Blakemore, R. Greene, T.
Boldero, H. G. Grimsditch, T.
Borthwick, P. Grogan, E.
Botfield, B. Halford, H.
Broadley, H. Hamilton, W. J.
Broadwood, H. Hamilton, Lord C.
Bruce, Lord E. Hawkes, T.
Buck, L. W. Heneage, G. H. W.
Buckley, E. Herbert, hon. S.
Buller, Sir J. Y. Hodgson, R.
Campbell, A. Holmes, hn. W. A'Ct.
Chelsea, Viscount Hope, A.
Chetwode, Sir J. Hope, G. W.
Christmas, W. Hughes, W. B.
Christopher, R. A. Jermyn, Earl
Clerk, Sir G. Johnson, W. G.
Clive, hon. R. H. Kemble, H.
Collett, W. R. Knatchbull, right hon. Sir E.
Colvile, C. R.
Conolly, Col. Law, hon. C. E.
Corry, right hon. H. Leicester, Earl of
Cresswell, B. Lincoln, Earl of
Cripps, W. Litton, E.
Crosse, T. B. Lockhart, W.
Damer, hon. Col. Lopes, Sir R.
Denison, E. B. Lyall, G.
Douglas, Sir C. E. Lygon, hon, Gen.
Mackenzie, T. Sheppard, T.
Mackinnon, W. A. Shirley, E. J.
Mahon, Viscount Shirley, E. P.
Mainwaring, T. Smith, A.
Manners, Lord J. Somerset, Lord G.
March, Earl of Stanley, Lord
Marsham, Viscount Stanley, E.
Martin, C. W. Sutton, hon. H. M.
Marton, G. Taylor, T. E.
Milnes, R. M. Tennent, J. E.
Morgan, O. Thompson, Mr. Ald.
Munday, E. M. Tollemache, J.
Neville, R. Trollope, Sir J.
Nicholl, rt. hon. J. Trotter, J.
Northland, Viscount Verner, Col.
O'Brien, A. S. Waddington H, S.
Peel, rt. hn. Sir R. Walsh, Sir J. B.
Pollock, Sir F. Whitmore, T. C.
Praed, W. T. Wodehouse, E.
Pringle, A. Wood, Col. T.
Rae, rt. hn. Sir W. Wortley, hon. J. S.
Rashleigh, W. Young, J.
Reid, Sir J. R.
Rous, hon. Capt. TELLERS.
Rushbrooke, Col. Fremantle, Sir T.
Sandon, Viscount Baring, H.