Lords Sitting of 18 February 1805

MINUTES.
Counsel were heard at some length relative to the Scots Appeal, Bannerman v. Bannerman and others.— The bills upon the table were forwarded in their respective stages. Among these, the Coal Factors' Indemnity bill was read a second time, and committed for to-morrow.—Mr. Alexander brought up from the commons the Greenland Whale Fishery bill, and also two private bills. These were severally read a first time.—A message was brought up from the Commons, importing that the house had granted leave to two of its members, the hon. G. L. Cole, and Sir James Stewart, to attend a committee of their lordships, if the said members thought fit.

CONDUCT OF JUDGE FOX.—
Lord Grenvillesaid, he had to call the attention of their lordships to a subject of very serious and weighty importance, namely, the matters alleged in charge against one of his majesty's judges in Ireland, Mr. Justice Fox, now under their lordships' consideration. He certainly should have come forward, as he now intended to do, when the subject was last under discussion, were he not prevented from attending by severe indisposition. The case was certainly of a novel description in that house, and, in every point. of view, whether as effecting the individual, the public, the character of that house, and the consideration of its being to form a precedent with respect to the exercise of the highest of all their functions, one of the greatest importance, and it behoved them lo proceed to its consideration in the most serious and deliberate manner. On this head, lie felt it his duty to submit to their lordships his ideas of what was proper and fitting to be done upon the occasion. He did not know that he should have to close what he had to say with, any regular motion. What he should offer, he had ra-
536
ther their lordships would turn in theft minds, did they deem it of any weight, or receive assistance in the way of discussion from those who were more conversant in the subject than himself, either then, or any future opportunity, than come to any decision upon his propositions, that day. As the case stood, it appeared that several petitions were presented last session, complaining of misconduct on the part of one of the Irish judges in the execution of his high official duty; in considering this proceeding, it was natural to refer to the provisions of those acts of parliament, by which the judges were placed in their present situation. By these the tenor of their offices was good behaviour, they were re-moveable only on the address of both houses of parliament; the case might some before them in the way of judicial proceedings. With the House of Commons there were two options vested: the first to vote an address of removal, in which their lordships would afterwards have to consider of their concurrence; or to impeach the party before the tribunal of that house. In deciding upon the case, as it then stood before their lordships, they should be guided by two leading considerations: first, that of proceeding in the most convenient manner under the circumstances of the case; and, secondly, that such proceeding should be in a way the most analogous to the principles of the constitution. With respect to the first, it would be proper to pause, for a time sufficient to ascertain whether the other house of parliament may not originate a proceeding upon the case, as it may in point of fact? In a case like the present, where the charge was one of positive misconduct, it would be more regular, as well as. more consonant to the former practice, and more conducive to the ends of public justice, to make the application, in the first instance, to the other house, who, as he said before, were invested with the twofold option of proceeding, either by the way of address or impeachment. With respect lo this, it was seriously incumbent upon their lordships to consider of the contingent possibility of the case ultimately coming before them in their judicial capacity, in the shape of an impeachment; in such a case they would have to sit as a court of justice upon that which, in the way now proposed, they should have tried by previous examination; the consequences of this were too obvious to expatiate

537
upon. In that view of the question, particularly, it would be preferable to let the application, in the first instance, be made to that branch of the legislature which, constitutionally, forms the grand inquest of the nation. By proceeding in the line at present chalked out, the ordinary situation of the two houses would, most probably, be inverted; as, possibly, they may be so placed as to appear, to a certain degree, as prosecutors before the house of commons. In this view of the question, he thought there could be little difference of opinion. He was decidedly of opinion it was preferable to let the matter originate with the other house. It would be for the house to consider, whether or not, in the mode proposed, a degree of wrong might not be offered, either to the interests of the parties, those of justice, or to the rules prescribed by the constitution. In pursuing the course he recommended, they did not in the least renounce those powers which the acts of parliament vested in them. He again pressed the general importance of the subject to their lordships' minds; and these considerations attending upon the case being entirely new, on this ground, he rather wished the house would come to no decision that night, but take time to consider the case in all its views and bearings. In this view, and with reference to what he had said of the probability of the other house taking it up, he thought it would be proper to adjourn the. sitting of the committee, which stood for to-morrow, for six weeks or two months, or rather, that no particular time should be fixed for its sitting; this to be done so as that the parties might understand that the. delay was for no other purpose than to afford them an opportunity of addressing, themselves to the other house of parliament; this delay, in fact, would not operate as an impediment to, nor a denial of justice; for, at the expiration of the period, the parties would have just the same opportunity of redress with that house as at present; however, in order to give effect to what he had laid down, and to give their lordships time to consider what he had suggested, he should take the liberty of moving, that the order for the committee sitting to-morrow be discharged, and a similar order made for Thursday.
Lord Hawkesburysaid, he differed widely in opinion from the noble baron, in what he had advanced upon the subject,
538
in every point of view, either with reference to the individual concerned, the interests of the administration of justice in Ireland, or to the public at large. He thought the investigation should be proceeded with in the way already agreed upon, and with as little delay as the circumstances of the case would admit. Their lordships would, have to consider the situation in which the ease stood before them. It had been brought forward by a noble member of that house towards the close of the last session. After some discussion, it was adjourned to the present session, when there arose some doubts as to the proper course to be taken the result of their lordships' deliberations on that point was, that it was desirable, before Mr. Justice Fox should be called upon to answer the matters alleged, that some enquiry should, be made into the case, and some prima facie evidence offered, with a view to establish a ground for subsequent proceeding. A farther delay was then acceded to, in order to afford; time to enable witnesses to come from Ireland. That last interval of delay being elapsed, he was surprised to hear on this day, for the first time, new doubts thrown out as to the propriety of what had been done, and a considerable further delay pressed for. Upon the whole, he was decidedly of opinion, the most regular and expedient way would be, to proceed, in the line already resolved on. With respect to the constitutional consideration of the case, he saw no objection whatever against the matter as given in that house. He, was aware of the respective legal right of either house to originate things of the, kind; yet there were considerations which, more properly, and, with a view to general practice and usage, more particularly fell within the province of the one house than of the other. Matters of commerce, revenue, and finance, lay more particularly with the Commons. On the other hand, there were several matters which, by the same rule, it lay with their lordships to originate. Such, particularly, were cases of divorce bills; certain considerations with respect to the law, in deciding upon which, they could have the assistance of the learned judges, who occasionally attended for the purpose; and also that of the heads of some of the courts of justice, who were usually members of that house. He was convinced, the ends of justice would be more satisfactorily answered, by suffering the business to

539
proceed in its present course; not only in this, but in point of expedition, it was infinitely preferable. In any mode of proceeding, the concurrence, or the co-operation of that house would be eventually necessary. As the case stood, the mode recommended by the noble lord would be only productive of further and even injurious delay. The commons could adopt no middle course between a vote of their house, either for redress or impeachment; in the pending interval the character of the individual would remain at stake, and in some degree the administration of justice in Ireland suspended, for, by their single vote, the judicial functions of the individual would not be entirely taken away. Upon the whole, though he differed entirely from the noble baron in his proposition, yet he was not adverse to deferring the farther consideration of the case for a very short time, in order to afford their lordships an opportunity of turning over in their minds what had been respectively thrown out. His mind, however, upon the point was made up; and he should have seriously to recommend to the house to proceed in the course already resolved upon, and with as little farther delay as possible.
The Earl of Carlislemade a few observations in support of what had fallen from his noble friend. He pressed the consideration, that their lordships, in the mode proposed, would have to proceed as a grand jury, in an exparte way, and upon a case which possibly might afterwards Come before them as judges; and he contended, that, on the score of expedition, the line of conduct recommended by his noble friend was by far the most preferable.
The Lord Chancellorquitted the woolsack, and directed his observations chiefly to the situation in which the question stood and the most eligible mode of proceeding In point of form; he declined delivering his sentiments upon the subject till a future opportunity, but he seemed to prefer proceeding with the investigation, as the house had already determined. There was one point which had transpired in the course of that evening's discussion which he was happy to observe, and for which he had to express his thanks to noble lords; nay, even his gratitude; namely, the apparent disposition to act upon the opportunities which the constitution afforded them, of having recourse to the assistance, when necessary, of the law lords, and to render their attendance effectual.
Lord Grenvillespoke in explanation, and expressed his astonishment at the way in which the noble secretary of state seemed to consider what had fallen from him. He thought his conduct, on the occasion, required no apology; it was the bounden duty of every member of that house to come forward and otter his opinion, in every stage of a business, and on every opportunity, as to what he thought might' best favour the ends of public justice. He was prevented by indisposition from attending when the subject was last discussed. No considerations of delay or inconvenience should militate against the paramount principles and more important ends of public justice. They should consider the novelty of the case before them, and that they were about to set a precedent to future ages, on a point of the last importance in the exercise of all their functions.
Lord Hawkesburyexplained. As far as his recollection served him, he had said nothing which ought to induce astonishment on the part of the noble baron; he regretted the cause of his inability to attend when the subject was last discussed; but a considerable interval had since elapsed, in which the noble lord had an opportunity of coming forward. He had so far conceded as to agree to the noble lord's proposition in the first instance, but he had to deprecate all unnecessary delays in the investigation of the case.
The Duke of Clarenceexpressed his satisfaction at what had fallen from the noble lord who had opened the discussion; but not having attended the former discussion upon the subject, he confessed himself rather at a loss to know the precise situation in which the case then stood, and begged any noble and learned lord present would inform him.
The Lord Chancellorquitted the woolsack, and explained generally to his R. H, that the object of the committee, which had been ordered to sit, was to investigate the truth of matters alleged, so far as to ascertain whether a sufficient ground appeared to warrant their lordships in calling upon the accused to answer, or to entertain a motion for an address upon the occasion. The witnesses were to be examined upon oath before the committee, as to the truth of matters alleged, but to what extent it was for the committee to determine.—The question was then put upon Lord Grenville's motion, which was accordingly ordered,

IRISH HABEAS CORPUS SUSPENSION BILL.—
Lord Kingcalled to the recollection of their lordships what had fallen from him on a former evening, relative to the suspension of the Habeas Corpus Act in Ireland, and the great discretionary power vested in the crown in consequence. It being in agitation to renew the measure, as one of very questionable importance, he thought that adequate reasons should be assigned for it. With that view, he called for the information which was stated in his motion on a former night. He expressed his hope that the noble secretary of state had, upon further consideration, altered his opinion upon the point, and would agree to the production of the information required. His lordship then proposed his motion, similar lo that offered on a former night; the leading point was, "that an account of the conditions on which such persons as were liberated from confinement under the suspension of the Habeas Corpus Act, were discharged, be laid before the house."
Lord Hawkesburyreplied, that the more he had considered the point, the more confirmed he was in his objections to such a proceeding. The noble secretary then repeated his observations on the former occasion, as to the dangerous tendency, in various points of view, of making the disclosure required; this, he thought, so obviously the case, that he did not wish to take up their lordships' time in further descanting upon the subject.
Lord Grenvillecould not see any objection to that part of the motion; he thought the condition upon which these persons were discharged was a piece of information which it was necessary, should be laid before parliament, in order that they might see how the powers given by former suspension acts had been used, particularly when they should probably be shortly called upon to renew that suspension. He could not conceive that any mischief could arise from the disclosure of secret information mentioned by the noble secretary of state, as the conditions of their discharge must be known to the persons liberated, and if this part of the motion was refused it would follow that information was granted to those persons who had probably been arrested upon suspicion of treason, which was denied to parliament.
The Marquis of Sligodeclared his entire opposition to that part of the motion,
542
as local circumstances rendered it highly inexpedient that such information should be disclosed.—After a few words from Lord King, that part of his lordship's motion in question was withdrawn.—Adjourned to Monday.