§ Upon the order of the day being moved for their lordships to resume the examination of witnesses relative to the charge preferred against the honourable Mr. justice Fox, counsel and strangers were ordered to withdraw. Their lordships remained deliberating near an hour; the learned and venerable judge was then called in, and Mr. Romilly re-commenced the examination of Mr. Armstrong, the foreman of the jury, upon whose petition and complaint the present enquiry was instituted. The witness was first asked, whether, after he had heard the evidence upon the indictment which had given rise to the conduct of the learned judge, he could conscientiously have found any of the prisoners guilty? Mr. Adam objected to this question as too general, and it was waved. The witness, on being cross-examined by Mr. Adam, stated, that the trial in question took place on the 19th of August, 1803; that additional evidence was gone into after the jury had retired; that the witness, as the foreman, delivered the verdict of acquittal, having been out about half an hour. On the 20th of August, the day after the trial, Mr. justice Fox desired the clerk of the crown to deliver to him a list of the petit jurors. When he had received the list he desired the grand jury to be called, and he stigmatised the petit jury as unworthy of being believed on oath, and unfit to act in 176 the capacity of jurors. He also ordered the clerk of the crown to deliver the list to every succeeding judge, as consisting of men unfit to act as jurors; also that the high and under sheriff should have lists delivered to them, in order that it might be known the jurors were branded with infamy by the verdict they had given, and further, that their names should be posted up in the grand jury room. The witness stated, that he had been examined on this subject before a committee of the house of lords. He added, that shortly after the circumstance to which he was deposing, he and his brother jurymen applied to counsel for advice. Upon being asked when he first saw the present petition, he said it was as long after the trial as the summer of 1804; one of the jury brought it to him for his signature. He believed the name of this juror was Fawcett. He admitted that in the part of Ireland in which he and the rest of the jury resided, though they did not receive the newspapers, they had means of knowing what passed in parliament. He knew, before he signed the petition, that a complaint had been made in the house against Mr. justice Fox. He said, Fawcett and Weir brought the petition to him; more of the jury were present at the time. It was at the house of Mr. Reid, an innkeeper; they met in a parlour of the inn. He did not know who drew up the petition. Mr. Romilly submitted that the counsel for the learned judge had no right to press this course of enquiry. Mr. Adam contended, that as the jury, by preferring a joint complaint against the learned judge, were united as plaintiffs in the same cause, whatever any of them had done or said, was capable of being proved, and was equally applicable to all.
§ Lord Ellenborough said, there could be no question with regard to the competency of the evidence. In all prosecutions carried on in criminal courts, it was the ordinary and constant course to examine into the motives by which the prosecutors were actuated. If it appeared that they held private assemblies, and consulted secretly together, it was a most pregnant and important fact in the consideration of the charge: it indicated the motives the prosecutors had in view; it shewed that the prosecution, instead of being founded in a sense of private injury and a regard to public justice, proceeded from malice, ill will, or some other impure motive. Not only the assembly or meeting of the prose- 177 cutors was an act material to be proved, but the declarations of any of them accompanying such act were important. The objection to the evidence, therefore, would not bear an argument. The witness proceeded to state, that he did not know who drew up the petition, or who gave instructions for it. They employed an attorney, who sometimes lived in Dublin, and sometimes in Fermanagh. This attorney was the father of one of the jurors. The witness was asked, whether he had given the same kind of evidence before the committee of the house of lords?
§ Lord Hawkesbury thought it irregular to refer to the evidence given before the committee.
§ The Duke of Clarence intimated, that, as the question had been objected to by a noble lord, it would be proper for the learned counsel to withdraw it.
§ Mr. Adam contended, that he had a right to ask the question, in order to compare the evidence given by the witness now, with that which had been given before. It was a course of examination which went to the credit of the witness's testimony. He therefore thought, with submission, that their lordships would allow him to proceed. Mr. Nolan supported his arguments. Mr. Romilly was heard on the other side.
§ The Lord Chancellor said, their lordships were called upon by the counsel for the learned judge to direct that to be done, which they had said should not be done. Their lordships had refused to communicate the evidence taken before the committee, and yet they were desired to suffer the counsel to ask questions which would oblige the witness to repeat his evidence over again.
§ Lord Minto observed, that he was not aware their lordships had ever come to any such decision. He did not know they had ever passed any vote upon the subject. He certainly recollected a noble lord's moving a question of the kind, but their lordships adjourned without agreeing to it. It was brought on again, but no resolution was adopted. He was of opinion that it was a question which required further deliberation; it was important to substantial justice that it should be reconsidered; not to do so would, he conceived, be a sacrifice of justice to forms. The only ground of argument stated for refusing to publish the evidence before the committee was, that it was a secret committee. 178 Why was it called a secret committee? Sure he was, it did not bear that character; nor was there, in its proceedings, any circumstance from which it could, with propriety, have been so denominated. It was so far secret, that out of regard to the learned judge, it was deemed proper not to publish the evidence before their lordships had determined upon the enquiry at their bar; but the motive for secrecy ceased, the moment their lordships were of opinion there ought to be a public investigation. As it was a proceeding connected with the administration of public justice, the character of publicity naturally attached to it. He hoped therefore that house would deliberate on the propriety of publishing the proceedings of the committee. It was obvious that if it was not published, the learned judge would have to defend himself at a very great disadvantage; while, on the other hand, every advantage would be afforded to the petitioners: while the evidence was kept secret, it was difficult even to know who the petitioners were, or whether it was the cause of the petitioners themselves, or of other parties. He alluded particularly to a noble marquis who was an accuser upon this occasion. Their lordships could not but be sensible that the accusers and the accused did not stand on equal grounds, because the former were acquainted with the whole of the evidence given before the committee, while the latter was entirely ignorant of it. Their lordships too were placed in an embarrassing and delicate situation, from which nothing but the publication of the evidence could relieve them; they had the evidence, but it should be recollected that it was given ex parte; it was the evidence of the accusers, who consequently had never been cross-examined. Their lordships came to the investigation with that impression which three weeks evidence, not cross-examined, was calculated to produce. The objection in this case was not of the same force as in ordinary cases, for though the evidence given before a grand jury was ex parte, they did not communicate it to the petit jury who tried their lordships, as grand jury, first heard the ex parte evidence, and then, with that previous impression, proceeded to try the accused. This he conceived wrong, and therefore he hoped their lordships would take the subject into their serious consideration.
§ Lord Sidmouth said, the he use was at 179 liberty to deliberate again on the subject of the noble lord's speech, as no formal decision had taken place. He had understood that a general admission had been made, as to the difficulty of publishing the evidence, not arising merely on the point of form, but other obstacles which stood in the way. He was however of opinion, that an adherence to forms would ultimately be attended with most substantial justice. The evidence before the committee had been taken, in order to enable their lordships to judge of the propriety of pursuing the enquiry. It was now proposed to use that evidence for a different purpose. As to the circumstance of the learned judge being ignorant of facts known to the petitioners, it was an inconvenience to which every person accused was subject. He was of opinion that there was not sufficient ground to induce their lordships to publish the evidence.
§ The Earl of Carlisle observed, that the evidence on the enquiry before the committee ought to be as public as the sun at noon-day. Why were short-hand writers employed to take down the evidence, if it was afterwards to be kept a profound secret. He was of opinion that their lordships, in justice to the learned and respectable magistrate at the bar, ought to allow him the benefit of his counsel having the whole of the evidence before them.
§ The Earl of Buckinghamshire considered the publication of evidence, so entirely ex parte as that taken before the committee, to be extremely improper.
§ Earl Spencer urged the measure of furnishing the learned judge at the bar with a copy of the evidence taken before the former committee. He also thought, that the present evidence should be printed for the use of the house.
§ Lord Hawkesbury had no objection to the evidence now going on being made public. It was not like that before the farmer committee, merely an examination in chief. The witnesses at the bar were subject to a cross-examination, and therefore their evidence would go to the world with all the colouring the parties on either side could give to it.
§ The Lord Chancellor stated, that it was absolutely necessary their lordships should come to some decision on the subject under consideration; but it was his opinion, that in the mean time the question proposed by the counsel should not be put. If the learned counsel were permitted to put such questions, it was evident, that, with his 180 active mind, he would easily draw from the witnesses every thing they had stated in the former committee. In order to enable their lordships to come to a decision on the main question, it was necessary that some noble lord should make a motion on the subject, and he felt it very difficult to form an opinion as to what the purport of that motion should be. It had been proposed on a former occasion to revive the committee, and whether that was the mode which ought now to be taken, he did not pretend to decide. He reminded their lordships, however, that in coming to a decision on this case, they would establish a precedent which would apply to all cases generally. Every word of the evidence taken before the committee might have redounded to the honour and credit of Mr. justice Fox; but in making this supposition, their lordships were aware that the rule of furnishing evidence might be applied to cases of a very different nature.
§ Lord Ellenborough agreed with the noble and learned lord, that the question should not now be put; but he was of opinion, that, unless the forms of the house precluded such questions, the general law of evidence authorized the counsel to put them. He thought that the committee had already come to a decision on the question of furnishing a copy of the evidence; but, as that was not the case, he hoped they would determine it without further delay.
§ Lord Minto observed, that the propriety of furnishing a copy of the evidence before the former committee, and the right of the counsel to put such questions as that now under consideration, formed, in his opinion, two separate points of discussion. He now moved that the chairman do leave the chair; and gave notice, that he would to-morrow make a motion for reviewing the former committee.—After some conversation, this motion was agreed to.—The lord chancellor having taken the woolsack, a conversation arose on the form of the motion.
§ Lord Hawkesbury was of opinion, that the object of reviving the committee should be expressed in the motion, whether it was to be for laying the evidence on the table, or communicating it to the learned judge. If it was produced at all, he thought it should be printed.
§ Lord Ellenborough suggested that the evidence should lie on the table for the inspection and reference of the counsel on both sides.
§ Lord Minto was at present inclined to 181 make the production of the evidence, and the future application of it, the ground of two separate motions.
§ The Earl of Carlisle gave notice, that he would, to-morrow, present a petition from Mr. justice Fox, praying, that the evidence taken before the former committee might be printed.—On the motion of lord Auckland, the evidence hitherto taken at the bar of the house was ordered to be printed.—Adjourned.