HL Deb 21 February 1805 vol 3 cc571-81
The Duke of Clwrence

addressed their lordships on the subject of the state of their proceedings with respect to the charges against the above judicial character. It was one, viewing the case in its different points of view, of such importance as he felt him-self called upon to deliver his sentiments upon it. The first consideration that presented itself, his royal highness observed, was, that their lordskips, the highest tribunal in the world, were about to exercise the functions in the case before them, to set a precedent for the conduct of future ages. God forbid! therefore, that any party views or considerations should enter into its investigation. Of the individual in question he had no knowledge whatever. The first he had heard of him, was by the first notification of the proceedings in question to their lordship's house. They were, he conceived, then to determine what ought to be the form and course of the proceedings relative to the case of Mr. justice Fox. Their lordships were all aware of the important change made in the situation of the judges of England and Ireland, by the act of the 1st of his present majesty, and this was the first instance of the kind, which had come before them since that period; this consideration increased the importance of the proceedings before them, and to which were to be added, the high public situations in which the judges stood, who were moreover the representatives of the sovereign. Two different modes of proceeding presented themselves to their lordships' consideration: the first by suffering the matter to originate in the house of commons, where it could be proceeded with, either by mode of address to i the crown for the removal of the party, or by impeaching him before the high court of parliament; or their lordships could proceed with the matter as it stood before them. The same mode of proceeding, he thought, from the best consideration he was able to give it, to be decidedly preferable. In either of the modes by which the commons could proceed on such an occasion, their lordships would have an ulterior opportunity of deliberating upon the merits of the case, and deciding accordingly. This, he thought, would also be the most regular and expeditious way, although he thought, in such a case, all individual considerations ought to be out of the question. The disadvantages of the line of proceeding, as already chalked out, were too obvious to be dwelt on. But one consideration, in particular, struck him so forcibly that he could not forbear urging it. Supposing their lordships, on their investigation of the case, should deem Mr. justice Fox innocent of the alledged charges, and that the commons, afterwards, recourse being had to them, a very possible case, should vote an impeachment, which of course would come before their lordships far determination, what sort of answer could they make? The case ought to be considered and proceeded on with the utmost coolness and deliberation. What he thought the most advisable, as the case stood, was to propose to their lordships to suspend all proceeding in their house for a given time, in order to afford the commons an opportunity of taking it up and, under the conviction that this was the preferable mode of proceeding, he moved, that the present order, relative to the committee of their lordships taking into consideration the matters alleged against Mr. justice Fox, be discharged, in order that the sitting of the committee be postponed for six weeks.—The question, agreeably to the regular course of proceeding, being put upon the first part of his royal highness's proposition, namely, that of discharging the present order,

The Earl of Limerick

observed, that on the present occasion, of the great importance of which he was fully aware, he felt no sort of bias whatever in his mind: for his own part, he had no knowledge of the learned person against whom the complaint was made, or of the causes of complaint against him. He therefore came to the consideration of the question before their lordships, with a mind perfectly free and unbiassed. With respect to the proposition of the royal duke, though he felt regret at being obliged to differ on any point, from that illustrious personage, it was one which, on his own view of the case, lie entirely disapproved of. Though he was divested of ail personal consideration with regard to Mr. justice Fox, yet he could not discharge from his mind all considerations of his case, as an individual, labouring as he must, after what had passed in their lordships' house, under a certain degree of imputation, which a reference to his public character certainly enhanced. He must deem any proposition, tending to delay, or to retain him in his present very disadvantageous situation, as rather hard. That the learned judge was placed in such a situation as he alluded to must be obvious, when it was considered that a noble member of that house, of high character, distinguished abilities, and commanding eloquence, had come forward as he had done, and whom everyone must think would not have so come forward, unless he felt himself imperiously called upon by a sense of his public duty. That noble person had, in an address to their lordships, equal in point of eloquence and animation to any ever delivered in that house, twice come forward with Specific charges' against the learned judge, and in consequence, it must be supposed that a degree of doubt at best must attach to the character of the learned person, until such charges were disposed of. This situation must be ren- dered the more painful and disadvantageous, when his judicial character was referred to. Under what a disadvantage must not a judge, so circumstanced, go the circuits, or dispense the law from the seat of judgment? Presiding in the circuits was a consideration very different with the judges of Ireland from what it was with the judges of South Britain. Since the recent additions ware made to the salaries of the judges in Ireland, a great deal of such increase was made to depend upon their going the circuits; this was probably done to ensure their, attendance upon that very important part of their duty. He deprecated whatever might tend to delay their lordships decision upon the case before them; the situation of an individual so circumstanced was to be considered—the length of time it would be necessary to retain counsel, or keep witnesses in town. A further delay of any time would have the effect of sending the learned person back as, for so it must be considered, a disgraced man. Possibly, in the first instance, it might be better the proceedings had originated in the other house. But, with respect to the right, it incontestibly vested in either house. Not a word in the relevant acts of parliament could be construed as vesting the initiative in the house of commons. He thought that, as the case stood, it would in every point of view be preferable to let the matter proceed as it had begun in their lordships house, who, in considering the matter, would of course be guided by no considerations, save those duties, which the nature and importance of the case imposed upon them.

The Earl of Carlisle

expressed his difference in opinion, in certain points of the case, from the noble earl who had just sat down. Though he was certain their objects, namely those of public and individual justice, were exactly the same thing. To adopt the proposition recommended by the illustrious personage would, even in point of expedition, be preferable. The suspension of the proceedings in that house, for six weeks, would, on the other hand, involve no surrender or abandonment of any of the essential rights or privileges of that house. But it would certainly produce a most essential benefit. The intended mode of proceeding would, on the other band, involve the greatest difficulties, one of which was, the probability of their having to appear in a double capacity; first, in that of a grand jury, and afterwards by a metamorphosis, not very congenial to the principles of the constitution, in the characters of judges, in the ultimate result, upon the case. In. that event, it could not be said, after investigating the case previously, they could come to judgment with minds perfectly unbiassed. Upon the whole, he deemed it preferable to suspend the proceedings for a given time, and take the chance of the other house proceeding in the business; as they were, every step they should take would involve them in fresh difficulties.

The Earl of Westmoreland

observed, that viewing the question as he did, the real merits of which lay in a narrow compass, lie should give his negative to the propositoin of the illustrious personage. He deprecated every thing that tended to delay. Their lordships would recollect, that the case stood over since the last session, and that the parties on both sides had been summoned. His lordship adverted to the provisions of the acts by which the judges were placed in their present situations, and conceived the case to be such on the part of the house, as it would have been before these acts passed, with his majesty's confidential advisers, with respect to a question for the removal of one of the judges. That the proposition could be more expeditiously, as well as more regularly or constitutionally acted upon, by their lordships, he had no doubt. The advantages which their lordships possessed in that respect, their power of administering oaths, and recurring to legal assistance in particular, were many and obvious. The idea so much dwelt upon, of the possibility of a subsequent impeachment by the commons, he considered as no objection at all; the proceedings would go upon different matters of charge, and their lordships could therefore be no way pledged by any prior act of theirs. The case before the house would, be conceived, only lead to a question of renewal; the consideration of subsequent proceeding and impeachment would hot tend to embarrass their situation, and as to the particular case under consideration, he never heard of one that more loudly called for an immediate proceeding upon it. He conceived, circumstanced as the house was, referring to what had already taken place, the situation of the individual, and the steps which had been taken, they could hardly have an option upon the case; and their lordships would do well, on the present occasion, to bear in mind the maxim in the great charter, which prescribed, that justice should be administered with as little delay as possible.

Lord Auckland

observed, that were it possible to tread back the steps they had taken in the business, it would be preferable the matter should originate in the other house of parliament. But their lordships were not now in such a predicament, and they should bear in mind how the case stood; the matter was before them 7 or 8 months, and a committee appointed to investigate its merits to a certain, extent: this, though in the nature of an ex parte examination, would be proceeded in with all possible deliberation. As they were so far embarked, he saw not how they could well get over it but by proceeding. Should they, in the course of the investigation, find grounds for proposing an address, that should be followed up without any unnecessary delay, but discussed with all the attention the importance of the case required, and to the consideration of which their lordships would come with minds perfectly free from prejudice.

Lord Mulgrave

disapproved of any departure from the line of proceeding already resolved upon, and every objection, made to an immediate proceeding on the part of that house, was, in his mind, equally applicable to the other house of parliament. It was no argument against any species of proceeding in that house, to say that the commons possibly may not concur. Such a principle should never be laid down. He saw no advantage which could possibly result from a recurrence to the house of commons, in the present state of the business; the judicial character was one of the greatest importance, and whatever affected it should be seriously considered. And, in every view of the case, he thought it preferable to continue the present line of proceeding, but chiefly in those of regularity and expedition. A speedy decision, in such a case, was of incalculable importance, and as such he must oppose the motion.

Lord Carleton

observed, that the learned judge in question was desirous of having the charges against him thoroughly considered, and anxious to confront the witnesses that should be brought forward. The consideration of his integrity, his fame, his high office, combined to render him anxious for an opportunity to come forward in his vin- dication. He meant not then to say how far those charges were founded or not, against the learned judge, but he thought he was justified in assuming that some of them were not well founded, because they were withdrawn. In adverting, generally, to the case, there were some peculiar circumstances relative to the powers of the judges in Ireland, which, m some points, were very different from those of the English judges; and some of these immediately bore upon the object under consideration. The noble and learned viscount referred to the different acts by which the present situation of the judges was constituted; but, he stated, it was not until the year 1772, that the Irish judges were placed upon the same footing as those of England. With respect to the point immediately under consideration, the mode and course of proceeding in such a case, the acts were silent upon it; but the question avowedly was not of the powers of either house; it was a case of discretion with their lordships. With respect to the probability of the matter being taken up in the other house; that there were petitions presented long since, they knew, but nothing farther; and so far as they were aware, or could argue from appearances, the commons did not mean to proceed. Adverting again to the situation in which the character of the individual stood pending the discussions, he thought it would be preferable, that their lordships should proceed in the course already resolved upon.

The Marquis of Abercorn

stated, that his only object in coming forward, was the ends of justice, and to settle the case between the learned judge and the petitioners, on the part of an injured public. As to the form or mode of effecting that, he had no wish to express; and, though his opinion, from what he had heard upon the point, was decided, he had no wish to express that opinion. The discussion of the important subject under consideration had been, on all sides, treated with due gravity and decorum; there was, however, one exception. A learned lord, who formerly filled a very serious and grave situation, had, he thought, in some measure, departed from the proper mode of treating the subject. There were even appearances of a bias in his mind, and he regarded him as insinuating that he thought some of the charges were ill-founded, as he said he had abandoned them. With respect to the charges, his wish was, not to bring for- ward any but what were of sufficient weight and importance. The reasons which induced him not to bring forward, the second time, those charges which were omitted, was specifically stated by him at the time; and these were, on the present occasion, referred to by the noble marquis.

Lord Carleton

spoke in explanation. He would leave it to the noble marquis himself, how far he had, in his expressions, departed from that degree of gravity and dignity which should always accompany discussions in that house. With respect to the charges adverted to, he only said, he had a right to assume some of them were not well founded, because they were withdrawn. He by no means alluded to the noble marquis, as having proposed them, knowing them to be ill founded; did the noble marquis know him as well as some noble lords in that house, he would not have so expressed himself; he never had a personal altercation with any man; he never made the smallest personal allusion to the noble marquis in what he said, still less did he attribute to him any improper motives.

Earl Spencer

spoke generally in support of the proposition. No individual Considerations, he thought, should weigh on such an occasion; their lordships should consider they were about to set a precedent on a case of the highest importance; a circumstance which should outweigh all minor considerations.

Lord Hawkesbury

observed, the more be considered the subject in question, the more he was confirmed in the justness of the objections he bad offered on a former night. By what fell from a noble lord opposite, he was misconceived in what he said on a former night; what he had said was, that when the commons had decided upon a vote of impeachment, he could not conceive any ground upon which they were not bound to agree to an address for removal in the first instance. With respect to what had been said that night on the ground of delay, proceedings of the kind involved a kind of trial in the house of commons as well as in that house; of this the case of Mr. Hastings, who was heard in his defence at the bar of that house, was an instance, as was also that of sir Elijah Impey, though the events were different. However, with all possible respect towards the house of commons, he thought, that, in the particular case before them, truth and justice were more likely to be obtained by pursuing the investigation, as resolved open by their lordships, than by referring it to the commons. No material inconvenience could arise even in the event of the contingencies so often alluded to, and he trusted the investigation, either with reference to the private or public interests involved, would be proceeded on with as little delay as possible. He should, therefore, object to the motion.

Lord Grenville

declared, that a more extraordinary doctrine he had never heard laid down gravely in that house, than that one and the same individual should be tried twice for one and the same offence. There was no court of justice in his majesty's dominions, that would for a moment entertain the abominable proposition. The act, he believed in his conscience, was passed to prevent persons who were incapable of performing the duties of their office, or who might be immoral characters, from longer holding the situation of a judge. It was a sort of milder punishment than that of impeachment, which was derected to something criminal. When he heard a noble lord make the assertion, that it was most proper that the persons who commenced the investigation should go through with it and come to a decision on the case, he might suppose that the ordinary proceedings of our courts of justice were nearly at an end. He might expect to hear the noble lord come down to the house to-morrow, and move to ever turn the whole system of the justice of the country. The ordinary and established manner of proceeding, was for a grand jury to hear only one side of the question, and on that to find a bill; but then the same persons did not go on to the conviction of the party accused. It would be remembered that in the case of Warren Hastings, the other house, when the charges were alledged against him, gave him an opportunity of being heard at the bar in his defence, before a single article of impeachment was made out against him. They then brought him before this house, which, by virtue of its superior privilege, examined witnesses upon oath. In the case of sir Elijah Impey also, a defence was made at the bar of the other house, and in con-sequence of that defence the charges were set aside. The house of commons therefore were properly the grand jury, who undertook the first investigation of the charge, and either founded a proceeding on it, or rejected the accusation. This was, as it is by its constitution, the court of justice, the province of which it was to examine the business more minutely, and to come to such a decision as the case might warrant. Notwithstanding, by the word of the act of parliament upon which this proceeding was grounded, the accusation had a right to be begun in either house, yet the idea of the same persons making the first enquiry, so as to sift out the nature of the crime, and afterwards pronouncing judgment upon the case, was so repugnant to every principle of British legislation, that he thought it best to leave the other house an opportunity of taking up the measure, if they should think fit. He was the more inclined to do so, as, if he was not misinformed, the delay which had already taken place in that house was occasioned by the petitions not having been renewed. The short delay which had been proposed would only give them an opportunity to renew the petitions, and then the business would come in its regular course before this house. He therefore supported most cordially the motion of the noble and illustrious duke.

Lord Sidmouth

said, that in the natural division of the respective duties and privileges of the two houses of parliament, that which was judicial seemed to belong as peculiarly to the chamber of lords, as that which respected finance belonged to the chamber of commons. He by no means questioned the right of either house to originate subjects of every kind, but their lordships well knew that the chamber of commons did in fact claim and exercise the right of commencing questions of finance; and it could not be denied but that, the house of lords, by possessing the power of administering an oath, was peculiarly fitted for the discussion of judicial questions. He therefore thought this question properly began here; and he could see no just ground whatever for the delay of six weeks; at the end of that time they might be in the same situation as they were now. It was of the utmost importance that the matter should be deckled on forthwith. The noble lord who spoke last, seemed to resolve the power of the two houses as to inquiry into the conduct of judges, into the single case of supervening imbecility. Now, he thought, that this was a case more suited to ministerial arrangement, and of which the noble and learned lord on the woolsack would feel it his duty to take cognizance.

Lord Grenville

said, that he could scarcely believe that the noble viscount had been in the house when he spoke, so totally had the noble viscount mistated what he had said. He had expressly enumerated three grounds upon which the two houses would feel it their duty under the act of King William to address his majesty; 1.crime in the execution of his duty; 2. criminal conduct not in the execution of his duty; and 3. supervening incapacity.—The question was again put, on which

their lordships divided, when there appeared for the motion of the duke of Clarence, 63. Against it, 36. Majority 27.

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