Lords Sitting of 27 June 1805

MINUTES.
The lord chancellor, the duke Montrose, and lord Walsingham, sat as commissioners, and notified the royal assent to several public and private bills. Among the public bills were, the Irish Stamp Duty bill, the Irish Malt Duty Bill, the Irish Spirit Licence bill, the London Fish Market bill, the Army Paymaster's Regulation bill, the West-India Free Port bill, the Irish Election bill. &c.—The Clothiers' bill, and the bill for regulating the corn trade between Great-Britain and Ireland, were brought from the commons and read a first time.—Mr. Pitt's Indemnity bill was read a third time and passed.

CONDUCT OF JUDGE FOX.
Lord Hawkesbury having moved the order of the day for the second reading of the bill for continuing the proceedings against Mr. Justice Fox till next session, observed, that a noble lord, who was not now in in his place, had expressed his disapprobation of this measure. He was, however, at a loss to conceive on what ground any objection could be made to a bill which was so evidently calculated to promote impartial justice with respect to the public, with respect to the petitioners, and with respect to the learned judge himself. He would do that learned judge the justice to say, that he had shewn every disposition on his part to meet the charge fairly, and to facilitate that investigation, which he was, doubtless, desirous should be completed as speedily as possible. With respect to the witnesses, it was obvious that much expense would be saved, by rendering it unnecessary to bring back to this country those who had already been examined. If it should appear that the bill would violate any broad constitutional principle, it certainly ought not to pass; but it was far from having any such tendency. He reminded their lordships that it was the practice of the house to make a distinction between measures which were strictly legislative, and those which were judicial. The latter were continued from session to session, but the former always ceased upon a prorogation or dissolution. There were other measures, which, though not strictly judicial, were

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analogous to judicial proceedings; and with respect to these, it had been the practice to bring in a bill for continuing them, to prevent the inconvenience of being obliged to renew them. Such a proceeding took place in the case of sir Thomas Rumbold, and also in that of Mr. Hastings. He could not see how this bill was to interfere either With the prerogative or the privileges of the other house of parliament. It could not pass without the consent of the other branches of the legislature, and when it had their consent it became their act. The only possible ground on which it appeared to him the bill could be consistently objected to, was that of the charges against Mr. Justice Fox being of so trivial a nature as to deserve no farther investigation. Now to enable the house to form an opinion on this view of the subject, they had the ex parte evidence taken before the former committee, to which he should not have referred, had it not been made public at the desire of the learned judge, and also the whole of the evidence given at the bar on one of the charges.—In alluding to this last evidence, he should only say, in the words of the counsel for the petitioners, that until their lordships heard what the learned and venerable judge had to say upon that evidence, no man could regard a single fact as proved. It would be very improper in him, or any one, to pretend to pronounce an opinion on the charge from that evidence; but this he would say, that it appeared to afford ground for some farther proceedings—for giving, at least, the learned judge an opportunity of explanation and vindication. Though there was no precedent that perfectly applied to the bill, the measure was supported by its analogy to other cases. He therefore moved, that the bill be now read a second time.—The bill was then read, and ordered to be committed.

GARDNER'S DIVORCE BILL.
The Lord Chancellor quitted the woolsack, and called their lordships serious attention to the standing clause which the bill contained, and to the principle upon which provisions of the kind proceeded. What they were called upon to do in such cases, was to alter the legal qualities of one whose case was brought under the consideration of the legislature, not for its own demerits, but on account of the delinquency of the parent. Clauses of the kind should be sparingly inserted. There were instances he admitted, in which the legislature could have no
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hesitation: such as where the husband was out of the country, or where a physical impossibility of any nature interfered. Besides the strong objections in point of legal principle, a provision of the kind was, in ninety-nine cases out of one hundred, unnecessary; as the persons interested had legal means in their power of perpetuating the testimony whose evidence they thought would establish the point in view. The noble lord then referred to some of the relevant circumstances of the present case, as they had appeared in evidence, though a part of the testimony to which he referred was of that kind that should be looked at with caution and jealousy; yet he had little doubt as to the result of that evidence. But then there was at least a possibility of the circumstance having been otherwise; and the present was that particular case upon which the legislature should never proceed but upon the clearest possible evidence; and, therefore, with reference to the principle he had laid down, and to the moral rights of legislation, he would propose that the clause to which he had adverted should be expunged.
The Bishop of St. Asaph supported the leading observations of the noble lord on the woolsack.—The clause, on the question being put, was ordered to be expunged, and the bill was then read a third time and passed.

OFFENDER'S ESCAPE BILL.
Their lordships having resolved into a committee on this bill,
The petition of Mr. Justice Johnson, presented and read last night, against certain clauses of the bill, which went as stated to affect his case in the nature of an ex post facto law, and praying, as in the concluding terms of the petition, "that his case might not be affected by a law which was not in existence at the time of the alleged offence," was read.—Mr. Adam and Mr. Parke were then heard, the former at considerable length, in support of Mr. Justice Johnson's petition. Mr. Adam went into a history of the former act to amend which the bill before the committee was intended; also the case of his learned client, from the time of its first being brought under the consideration of the Irish courts of law, to the present moment of its pending in the Court of King's Bench in England. He dwelt upon the consideration Of the bill in its present shape, going to affect the learned judge's case in the form of an ex post facto law; adverted to the point, that the act

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under which he was to be tried, afforded no power of compelling the attendance of witnesses from Ireland, argued for the propriety of trying the learned judge before an Irish court of law, in a country where his person, character, and conduct, were better known, than they could possibly be in this. The learned counsel enforced principally these leading considerations, with his usual talents and scientific knowledge.—Mr. Parke supported the arguments of his learned brother. He dwelt forcibly on the objectionable considerations of an ex post facto law, and adverted to the circumstance of there being no act before the 44th of the king, by which the learned judge could be tried in an English court of justice; and stated, that the learned judge had no opportunity of being heard before the other house of parliament, because the clauses he principally objected to were not introduced till the third reading of the bill, when they were added by way of riders.—Mr. Adam, in the course of his address, referred to some clauses, the introduction of which, he humbly submitted, would, on the others being expunged, render the bill unobjectionable in the way complained of by the learned petitioner.—Their lordships then proceeded to the discussion of the provision; and several amendments, chiefly verbal, were made, on the suggestion of the lord chancellor.
The Earl of Westmeath, confessing himself not adequate to the task, said he would not trouble the committee with any law observations upon the subject, but begged leave to move the introduction of one or two clauses, which, we believe, were similar to those adverted to by the learned counsel.
The Lord Chancellor observed, that what was now proposed, brought on the question of the desired amendments, and the proposed clauses. The adoption of those as proposed, he felt it his duty to resist, as nothing could be more true, or clearer in law, than that for a libel published in England, one could duly be tried by the laws of this country. He meant not now to go into the consideration of the general law, as relating to the publication of libels, but merely to say that he knew enough to be convinced, that were he or any man to write a libel in London, and publish the same in York, or vice versa, no lawyer could say that such would not involve two distinct offences, and for which the libeller might be tried either in the counties of
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York or Middlesex. With respect to the idea thrown out that there was no opportunity of compelling the attendance of witnesses, he observed, it was the general duty of all his Majesty's subjects to attend in, the king's courts of law, and that the process issued was the only means of compelling such due attendance. With respect to certain other considerations, which had been adverted to as applicable to the bill in question, he should certainly. give the points his best attention, and try whether he could not, either on the report or on the third reading propose a clause, which would be the means of doing ample justice to the country, and to the individual concerned; as he freely admitted, justice could not be done to the country, if it were with-held from the individual. What he proposed would go to obviate any thing which might result from the present bill, in the way of construction, to prejudice the pending cause. adverted to, and afford the party the means of compelling the attendance of witnesses on his behalf.—After, some farther observations from the lord chancellor, the clauses proposed by the noble earl, who seemed to express himself satisfied with the tendency of what fell from. the noble and learned lord, were negatived.