§ Lord Auckland rose, pursuant to his notice, to bring forward his motion respecting the case of the above judicial character. He called the attention of their lordships to the propositions which he had on different former occasions thought it his duty to submit to the house upon the subject, and which, in general, were negatively decided upon by the house. In consequence of this, and the line of proceeding preferably adopted, their lordships were at the end of four months arrived at the examination of a second witness upon one of the charges at the bar. He continued to think, that the objections he had formerly urged were well founded; and that the power exercised by the house, on these occasions, with reference to the act of settlement, was not rightly exercised. The charge under consideration, their lordships would recollect, was not for corruption, but for words spoken so long ago from this period, as twenty-two months, and, from the period of the first notice being given to the house, it was very near ten months. The principal consideration on which he founded what he should now propose, was the expediency of concluding the proceedings for the present sessions. Their lordships should consider the time of year, and the very advanced period of the sessions: to make any tolerable progress in the investigations, it would take them at least seven or eight hours every day, and even then it would be to no purpose. Under the circumstances of the case, they would not be able to do justice to the parties, nor consequently to the public this session. For his part, he had doubts of being able to attend; but whatever progress they could make would be useless, from the circumstance of the nearly approaching end of the session. He adverted to the great number of witnesses which were to be examined, even on one side of the question; they may go on; but he could not conceive what useful end it could answer. They were further to consider how the investigation must interrupt the regular legislative business of the house. All these inconveniencies and unfavourable considerations might be got rid of, by simply adjourning the further consideration of the case till next session. His lordship concluded 426 by moving, that the farther proceedings in the investigation of the case of Mr. Justice Fox be adjourned till this day two months."
§ Lord Hawkesbury differed essentially from the noble baron. He thought that many of the positions he had laid down induced, the contrary effect; and, with regard to the act of settlement, their proceeding would determine whether that was a dead letter, or whether it could be acted upon; and would shew to the public what could be done under it. With regard to the noble baron's immediate proposition, he could not see upon what possible principle it was founded. For, let them ask themselves, would such a line of conduct be consistent with those regards which are due to the considerations of justice? with what was due to the individual accused? with what was due to the petitioners? with what was due to the public? And, after having proceeded so far with the case, they should now do that which would in a manner quash, and put an end to the investigation. It would be contrary to all those duties he had stated; and they were imperiously called upon to proceed, and to come to some determination upon the issue of the business. He contended, it was their bounden duty to proceed with the investigation without delay. However short the period of the session might be, it was their duty to proceed as long as they could, and to make as considerable a progress as they could, in the course of the present session. With respect to the bill he had on a former day mentioned as his intention to bring in, he was more and more convinced of the convenience and expediency of it. Their proceeding as far as they could, would evidently tend to the convenience of several individuals who might be finally examined that session, and released from further trouble and expense. It was, he repeated, the duty of the house, steadily and perseveringly to pursue the investigation to the end. He could see no solid reason which could be adduced against such a legislative measure as he intended to propose, namely, a bill for continuing the proceeding from session to session. With a reference to the act of settlement, and the general principles of the law itself, they were bound to come to some conclusion upon the present case; he therefore trusted, their lordships would resist a motion, which, in principle, would tend to put an end to the proceedings altogether.
§ The Earl of Carnarvon, though he seemed to admit a great deal might be urged on the 427 other side of the question, yet, upon the whole, was inclined to concur in supporting the motion. With respect to the noble secretary's intended bill, he observed, that its passing into a law would not altogether depend upon that house.
§ Lord Auckland observed, that if the noble secretary of state brought in a bill of the nature of that to which he had alluded, according to all precedent, the investigation must be discontinued during the progress of the bill through both houses of parliament. In the present state of public business he supposed it would take at least three weeks to pass such a bill, and it could not be expected that the session would last longer than four weeks. All the advantage, therefore, that would be gained, would, at the most, be about four days for the examination of witnesses.
§ The Lord Chancellor declined going into a general argument upon certain considerations connected with the subject, and adverted to by some of the noble lords; but, in reference to what was thrown out, as to the approaching period of the session, he would say, that even if they could make no more progress than four days examination, he thought it would undeniably be a gross injustice to Mr. Justice Fox, if they neglected to secure to him so much of a further examination. The two witnesses, Mr. Armstrong and Mr. Galbraith, it would be recollected, had only been examined in chief. The very least they could do would be to secure the benefit of their examination to Mr. Justice Fox. Even as the case stood, a very desirable progress might be made this session, were their lordships to set earnestly to the business: were they to come down, suppose about one o'clock, and to give six or seven hours per day for a few days to the investigation, a considerable progress might be made; but at least, he repeated, let them, on the principles of common justice, secure the cross-examination of the witnesses to whom he had alluded.
§ The question was then put, and lord Auckland's motion was negatived without a division. His lordship afterwards entered the following Protest on the journals.
§ Dissentient,—1. Because the proceedings in question are grounded on allegations, some of which amount to a charge of crime and misdemeanor; and it is clearly contrary to the laws and statutes of this realm, that any accusation or complaint containing a charge of crime and misdemeanor, can originally be preferred this 428 house, or be entertained by the house, except in matters of privilege; and I am not satisfied that the clause of the act of settlement respecting the removal of the judges from their offices, in consequence of the joint address of the two houses of parliament, meant or can be construed to take the judges from the general protection of the law of the land, in order to place them in a situation of disadvantage and dependance, which does not effect any other individuals, or any other class of men. 2. Because, if our jurisdiction in this case could be established, still I should object to matters alleged in the proposed address, which are for words said to have been spoken almost two years ago, of which no notice was taken by the parties concerned till ten months afterwards, and respecting which the evidence, after such a lapse of time, is now to be received. It appears to me, that such a proceeding is contrary to the general analogy of law, and more especially objectionable as affecting a judge who may be exposed to invidious considerations in the discharge of his duties. 3. Because the judge who is the object of the proposed address, has already been subjected to great delays in this inquiry, and to a most distressing expense, in consequence of the course of proceeding first adopted by this house, and since desisted from on better consideration 4. Because the expense of such an investigation at our bar must, both in the present and future cases, produce the inevitable ruin of the judges who may be brought to answer, whether they shall be guilty or innocent of the act of misconduct alleged against them. 5. Because, if this proceeding were not questionable as to law, justice, and expediency, still it is objection able at this late period of the session, when the attendance of many peers must be withdrawn to other public duties; and when it is impossible that the enquiry can be brought to a conclusion; and when the result can only serve to send back the judge to the exercise of his judicial functions laden and prejudiced by a mass of printed evidence taken against him, and respecting which he will not have had the means of making his defence. (Signed) Auckland.