Lords Sitting of 7 June 1805

CONTINENTAL CONNEXIONS.
Lord Carysfortasked whether any information was intended to be laid before the house, relative to the negociation with Russia.
Lord Mulgravereplied, that he was not authorized to make any communication on the subject.
Lord Carysfortthen gave notice, that on Thursday se'nnight, he should submit a motion to their lordships relative to the Russian treaty; and their lordships were accordingly summoned for that day.

CONDUCT OF JUDGE FOX.
The order of the day being moved for the house to resume the consideration of the charge against Mr. justice Fox,
Lord Mintosaid, he rose in consequence of the notice he had given last night, to submit to their lordships a motion relative to the publication of the proceedings before the committee appointed to examine into the subject matter of the accusation against the learned judge; and when he considered its importance, not only as it regarded that learned person, but the public at large, and the administration of justice, he scarcely could entertain a doubt of success. It was his object to urge the reconsideration of the evidence which had been given before the committee. He wished that the secret or select committee, or by whatever other name it was called, should be revived, with instructions to report the evidence of the witnesses. As many of the witnesses were to be re-examined, it would undoubtedly be of great utility to have that evidence known to their lordships. He confessed he had an ulterior object, which was the communication of the evidence to the parties at the bar. The ground on which he desired to have that evidence published was, that without it the parties would not stand on an equal footing; the accused would not have the same advantage in making his defence as the petitioners would have in preferring their complaint. He had heard it said, that the law of England did not profess to put the accused and the accuser in the same situation. He was aware there must be some disparity with regard to their knowledge of the facts, but it was nevertheless greatly to be regretted when that was the case. It was consonant to the general spirit of the laws to put them on an equal footing. The difference in the present case was, that the accusers could put questions with reference to evidence, of which the accused must be completely ignorant. He contended, that it was the universal practice, that every person under accusation should have an opportunity, by cross-examination, of trying the credit of the testimony preferred against him. Of this advantage the learned judge was deprived. He laboured also under another inconvenience, he was tried by judges who had heard evidence which he had not heard, and had no opportunity of cross-examining. It was necessary that the learned judge's counsel should have the means of observing upon the evidence given before the committee. His proposition, therefore, was, that he should be placed on the same footing, as to the means of his defence, with every other person
186
accused. He was not aware, that any rule or resolution of their lordships stood in the way of such a proposition. It could only be by the publication of every part of the evidence, that the ultimate judgment of their lordships could be satisfactory. There were two modes, either of which might be adopted; the one was, to give the parties access to the papers; the other was, to print them. He preferred the latter, and, consequently, he should conclude by moving, "that the committee be revived, with instructions to report the evidence."
Lord Hawkesburyobserved, that it was unnecessary to enter into any. discussion upon the question. He was inclined to think, that the inconvenience on both sides which would attend the .publication of the papers would much exceed any advantage to be derived from them. He was, however, ready to admit, that there was no resolution or standing order of the house contravening their publication, and therefore, as he understood there were many noble lords who thought it would be useful, and as the learned judge had presented a petition to that effect, he should not resist the motion of the noble lord.
Lord Mintostated, that if his first motion should be acceded to, it was his intention to move that the evidence be printed.
Earl Spencersaid a few words in support of the motion, and stated, that it had always been his wish that the evidence should be printed.
The Lord Chancellorwould not sanction with his vote a proceeding which he conceived to be contrary to the forms of the house. If, however, the motion was agreed to, it was not to be understood, that, in adopting such a proceeding, their lordships threw any discredit on the witnesses. It was to be acceded to, not on that ground, but on account of the peculiar circumstances in which the house was placed. Every respect was due to the character and situation of the learned personage who was the object of the present proceedings; but protection was also due to every one of his majesty's subjects; and he therefore trusted, that no inference to the discredit of the witness would be attempted to be drawn, whatever might be the result of the present motion. His lordship then observed, that the application which had been made by the counsel at the bar was not reconcileable to any general principle, analogy, or usage of the courts of law. It never

187

was pretended, that depositions taken on a previous enquiry could be demanded from a judge on the trial of a person accused. Any publication of such proceedings was illegal, and their lordships would recollect, that the law did not authorize the publishing of evidence while a trial was pending, but permitted it after all the proceedings were concluded. If then the present motion be adopted, let it be understood that it passed with their lordships' acquiescence, but by no means with any authority. He knew, from the petition which had been presented, that it was the desire of Mr. justice Fox the evidence should be made public, and he knew that the well-informed mind and eminent talents of that learned person full qualified him to judge what was best to be done in his own cause; but their lordships must recollect that by their decision, they would establish a general rule which might apply to persons whose understandings and talents might render them by no means so capable of forming a proper opinion of the course they ought to adopt under similar circumstances. In consequence of the proceedings which had already taken place, it must be admitted that some of their lordships possessed an ex parte knowledge of the evidence. It had been better that this had not been the case, but he could assure their lordships, that the vote he should give on the close of the proceedings, if they every did come to a conclusion, should be one founded only on the justice of the case, and unmixed by any influence arising out of the previous investigation. This he could promise from a mind disciplined to such discriminations; but he was far from denying, that it was possible impressions might remain with other minds less exercised in decisions. His lordship maintained, that there was no means by which papers printed for the use of their lordships could be regularly furnished to other persons.
Lord Ellenboroughdid not think it necessary for him to declare, that the vote which he should give, on the conclusion of this most solemn proceeding, would be grounded on a strict regard to justice. He trusted, that his general conduct, that the important obligations imposed upon him by his rank, character, and situation, afforded a sufficient pledge, that his mind could be influenced by no other motive. With regard to the question now before the house, he was far from feeling the difficulties which presented themselves to the mind of his noble
188
and learned friend. The ends of "substantial justice" required, that the former evidence should be communicated to both parties, unless some positive regulation of the house prevented it: but so far was this from being the case, that their lordships had already ordered copies of the petition, and charges against Mr. justice Fox, to be delivered to him. Surely, if it was right to furnish him with written papers, there could be no impropriety in giving him such as were printed. If, however, their lordships thought right to confine themselves so strictly to analogy, the minutes of the evidence might be communicated to Mr. justice Fox in writing. But as to the question of furnishing papers, printed for the use of their lordships, to other persons, that he considered to be fully decided by the usage of the house. For several years he had been in the daily habit of receiving printed communications from the house. During the trial of Mr. Hastings, he received every day, a printed copy of the evidence, which was printed for the use of the house only. This communication was absolutely necessary, to enable the counsel to manage that important trial; and it was with the perfect knowledge of the house that they possessed it. He was seen with it at the bar, and it frequently was his duty to comment upon it. There were, therefore, two precedents in point, in the present case, in which their lordships had furnished a person accused with written communications; another, in which printed copies of evidence had been delivered to the accused party. No reasonable apprehension could be entertained of any proceeding of their lordships' house having an influence on the conduct of the courts below; the practice of these courts was guided by rules which long prescription had established. But their lordships must recollect, that they were now placed in a situation so anomalous, that no example, drawn from the practice of courts of law, could be expected to apply to it. It had been the lot of their lordships, in the course of the proceedings on this important case, to sustain very different characters. One character, at the commencement of the proceedings, had been assumed from the most honourable of motives; and if blame was imputable in that stage of the business, he was proud to take his share of it. Their lordships were of opinion, that an accusation against a person, whose rank

189
and character were so truly respectable as that of the learned judge, ought not to be entertained without much delicacy. It was not unnatural to suppose that future accusations might possibly be made by persons whose talents and judgment might have less weight with the house, and who could not claim the attention which was due to the noble marquis. It was, therefore, anxiously wished to protect, by a previous enquiry, persons in the situation of the learned judge, from vexatious proceedings, instituted on frivolous charges. With all the imperfections that belonged to that previous proceeding, it had still the advantage of establishing one useful precedent.—It demonstrated their lordships' determination to prevent any judge from being lightly accused. If this was an error, it was an honourable error, and one which originated in the best of motives. Their lordships were now in the situation of judges of the law, and the fact: In addition to that, they had formerly taken upon themselves the character of grand jurors, and it was naturally to be supposed that the evidence to which they had listened in the latter character, must have made some ex parte impression on their minds. To furnish the learned judge with copies of that evidence, was not throwing any discredit on the witnesses, but it was fit their lordships should have an opportunity of comparing the expressions they then used, with those they would now employ upon farther consideration. Such a comparison was necessary, to enable the house to form an opinion of the character, and credit which were due to the evidence of each witness adduced on the part of the prosecution. In a proceeding so entirely new, and anomalous, the means of such a comparison certainly would not be denied, if it could be, afforded consistently with the regulations of the house. The prevent motion went no farther, than to bring the evidence before their lordships. When the proceedings should be on the table, it would be time to determine, whether or not they should be printed; but he was incapable of conceiving how any mischief could arise from their being printed, and furnished to the learned judge. He had already shown that such a course was authorized by precedent; and he was convinced, that, in adopting it on the present occasion, no form of their lordships' house could possibly be violated.
The Lord Chancellorwished to know
190
whether the printed papers his learned friend had received on the trial of Mr. Hastings had been furnished to him with the judicial knowledge of the house? His lordship also observed, that the moment the motion for printing the evidence should be adopted, he should conceive it to be his duty to make a motion to prevent copies from going into the hands of any other persons than their lordships.
Lord Ellenboroughsaid, the printed papers he received on Mr. Hastings's trial were furnished with the entire knowledge of the house. To remove all doubt on that subject, he observed, that having occasion to refer to part of the proceedings which was not printed, he was informed, by order of the house, that it would be printed in the Appendix.
The Lord Chancellorsaid, that, for his own direction in the situation in which he was placed, he should put the question to the house, whether papers printed for their lordships could be communicated to other persons?—After a few words from lord Auckland, lord Hawkesbury, and lord Minto, the motion for reviving the committee was agreed to. The committee was then ordered to meet to-morrow, and the house adjourned to Monday.