HL Deb 19 March 1805 vol 4 cc40-6
Lord Auckland

adverted to the motions which he intended to make, namely, for a committee to search for precedents of proceedings in that house against individuals, upon complaints made by peers upon their own statements, founded upon information derived from others, and to consider how far it was consonant with law for proceedings to be instituted in that house against individuals otherwise than upon petition or matter of record, in support of which motions, his lordship argued at considerable length. The mode of proceeding hitherto adopted was one which he highly disapproved in other points of view, beside those of its being productive to the parties of great expence, delay, and vexation. It would be necessary, in some degree, to tread back the steps they had taken; but did it appear to be consistent with the honour, the dignity, and, above all, the correctness of their lordships proceedings, he thought there could be no hesitation to do so. What he had to propose for the adoption of their lordships would be resolved into various propositions: the first was, for the appointment of a committee to search for precedents of cases of any charge brought forward of high crimes and misdemeanors against any individual by a peer of the realm, upon his own personal statement of facts, &c.; and how far it is consistent with any law or statute, or usage of parliament, that house can proceed upon matters so originated, unless upon matter of record, or by petition, or entertained as matter of privilege. Secondly, that such committee should search for precedents of any such charges being made against any of his majesty's judges, previous to the Act of W. III. Also to enquire into proceedings adopted on the ground of petitions, alledging charges of high crime and misdemeanour; and also whether charges preferred against any person proceeding from individual assertion, can be, under the operation of the statute of H. IV. regularly or legally entertained or acted upon in that house? In considering the general subject, their lordships would have to consider what change has really been made in the situation of the judges, by the acts applying to them; and, with respect to the particular case before them, whether, with reference to the acts he alluded to, such a charge could, regularly and properly, be made in that house? In arguing against the correctness and propriety of the proceedings which had hitherto taken place, his lordship made frequent references to the provisions of the Act of H. IV. and adverted to several cases which had obtained, of charges being made, and of the line of proceeding adopted upon them, which, he contended, bore him out in saying, that such proceedings could not, properly, originate in that house. Referring to the acts respecting the judges, he contended generally, that to act upon principles contrary to what he had laid down, would be to place the judges in a different situation from that of any of their fellow subjects; the benefit of a full and free administration of justice; benefits which the application of the provision quam diu se bene gesserint did not exclude them. His lordship argued with great ability against the propriety and correctness of the proceedings hitherto adopted, in the particular instance before them; and, that cases of the kind could not regularly originate in that house. He referred to some prominent considerations in the particular case, some of the charges being of a very weighty and serious nature, and which were made on information given by a third person. Besides the great considerations of public and private justice in the case before them, his object in coming forward was to afford the house a regular ground, and the necessary information, previous to their deciding upon a case, in every point of view, of such great importance. He concluded by moving his first proposition, viz. "for the appointment of a committee for the purposes above stated."

The Lord Chancellor

replied to the argu- ments adduced by the noble lord, expressing his decided opinion, that, having gone so far, it was a duty they owed to the public, and to the learned judge against whom charges were made, to bring the investigation to a conclusion with as little delay as possible; he therefore upon this ground objected to the noble lord's motives, as tending to create unnecessary delay. He could not see what possible benefit could arise from a search after precedents of proceedings previous to the act of W. III. as they could not apply to the case which was under the consideration of the house. As to any precedents since, there were none, for to the honour of the judges, not a single instance had occurred since the passing of that act, where it was necessary to recur to an address of both houses of parliament to remove a judge. He would ask how they could have proceeded otherwise than they had in the case of the learned judge alluded to? It was his opinion, that supposing the charges to be true (with respect, however, to their truth or falsehood, he wished it to be distinctly understood that he gave no opinion whatever) a scicri facias would not have touched them, or affected the patent of the judge, as what he was charged with having done was not done in the execution of his office, as a judge of the court of Common Pleas, but on a special commission on the circuit. Suppose an impeachment had taken place, could the judgment have been, in case the charges had been proved, a judgment of removal from office? he doubted it, and if not, an address from that house, in conjunction with the house of commons, must have been resorted to, which must have been moved by some individual peer. Supposing an address of that nature to originate in the house of commons, still on its being brought to their lordship's bar, they would not take it as a proof, but would proceed upon the motion of some individual peer to investigate the subject themselves. Upon the whole, his lordship strongly objected to the motions, which he considered, as tending to create an unnecessary delay.

Lord Grenville

could not bring his mind to concur with the noble and learned lord, that further investigation upon this subject was unnecessary. He had expressed his opinion at an early stage of the business, and, whatever might be the law of parliament, every consideration, both of wisdom and justice, called upon the house to deliberate upon the question. His lordship in- sisted on the necessity of searching for precedent, and adverted to the case of the earl of Bristol, and several others, which he had looked into, and from which his lordship's mind had, he said, derived great assistance. The course which the house was then pursuing, he considered a direct violation of the law, and of the fundamental principles of the constitution; the proceedings, so far as they had gone, were entered upon the journals of the house, and was it to be said that a veil was now to be drawn over those proceedings, and what had been entered upon record, handed down as precedents to posterity, for their example? It was impossible therefore to put off this question, without some farther investigation; there were ample precedents in the house to authorise it to go into such investigation, and the arguments used against it, by noble lords on the other side, were not founded either upon law, upon justice, or upon principle, but were merely a detail of minute distinctions wholly unworthy consideration; he, therefore, trusted their lordships would be allowed to receive that assistance from precedents, and that a committee for that purpose might be appointed.

Lord Hawkesbury

observed, that the office of a judge had been by the Act of W. III. rendered as freehold, with a condition annexed to it, namely, that the judge should be removable upon the address of both houses of parliament. He considered the mode of proceeding adopted with respect to the learned judge alluded to, to have been perfectly regular, except in the instance of laying the articles of complaint upon the table. He admitted that no judicial proceedings could originate in that house upon the complaint of a peer against any individual, except upon matters of privilege; but he contended, that the case of the learned judge was totally distinct, and did not come within the meaning of such judicial proceedings. He thought a search for precedents, as moved by the noble lord would be wholly unnecessary, and could lead to no useful purpose; it was well known that no precedent existed since the passing the act of settlement, which bore upon the present question. Neither could he by any means agree that the remedy by impeachment was so simple and free from difficulties and obstacles as the noble lord had represented. Whoever would take the pains of studying the history of impeachments in this country, would see that a great many difficulties did always arise respecting what each house of parliament claimed as their peculiar privilege. In the course of that impeachment which was still in their recollection, the impeachment of Hastings, it would be recollected, that many such difficulties did arise. He certainly felt that a measure of such importance as addressing his majesty to remove a judge, ought not to be adopted without grave and weighty reasons, but if their lordships should be convinced by cogent reasons that a judge was unfit to hold his office, he could see no reason why the houses of parliament should forbear from presenting those addresses for his removal which the act of settlement expressly stated as sufficient ground to remove a judge from his office.

Earl Spencer

contended that a committee ought to be appointed, and that the constitutional mode of enquiring into the misconduct of a judge was by impeaching him. If the accusations brought against the learned judge, who was now the defendant, could be substantiated, there were very strong grounds, indeed, for such a proceeding; for that learned judge had been charged with no less a crime than having used seditious language from the bench. This was certainly a charge of sufficient importance to ground an impeachment on, if it could be proved. He wished the house, in the present case, to conform itself to its established usages and precedents.

Lord Mulgrave

could not see that there could be any necessity for appointing a committee to consult precedents, when it was well known that no precedent which could be found would come near the present case. When the judges were made independent of the crown, it was clearly stated, that they were only removable by address from both houses of parliament, or by impeachment. The precedents therefore of cases which happened before the passing this law, could have no application to the present case, and he could not conceive any other ground that could be required for those addresses, except the clear conviction of both houses of parliament on due and weighty consideration, that it was proper to present those addresses. If the house should, therefore, now think it impossible for them to proceed without finding out precedents, the same reason would always apply against addressing for the removal of any judge.

Lord Carleton

allowed that it was competent to either house of parliament to originate the question; and that since the passing of the act of W. III. it was as constitu- tional for parliament to proceed by the way of address as by that of impeachment, which, of course, could not originate in that house, but must come from the commons.

Lord Ellenborough

said, that highly as he respected the opinion of his noble and learned friend, he could not help differing from him on the present question. He thought that in an entire new case, as this confessedly was, and when the house was called on to decide on an act of parliament that had never yet been acted upon or brought into consideration—an act of parliament of such immense importance to every subject of the empire, because it went to no less a point than the removal of the judges from their places, he thought it was necessary their lordships should have the advantage of the opinion of the 12 judges. He thought also, that, in a case like this, their lordships could not proceed with too much caution; and, therefore, that they ought to have the advantage of all the precedents which our ancestors had made the rule and guide of their conduct, antecedent to the time of the act of settlement. He well remembered the time when he was obliged in duty, in the line of his profession, to object to the proceedings of that house, when they went from thence to the place below, day by day, for 7 long years; yet he was more pleased to see even such a proceeding, according to the established rules and customs of the country, than he would he to have witnessed an attempt to enter upon any measures, which should seem like an innovation on the established laws and customs of the land. It had been said, their lordships could not be certain that the commons house of parliament would exercise their privilege of impeachment; and, therefore, that house ought to proceed by way of address. He could not, however, suffer himself to think, that any subject whatever of such importance as the present, could be agitated in that house, so as that it should be apparent it deserved impeachment, but that the commons would immediately take it up and prosecute it accordingly. It had been said, that proceeding by way of address was not a criminal charge; but he thought otherwise. Was not the removal of a man from so high and distinguished an office as that of judge, a criminal charge? Was not divesting him of honour, rank, and high official station, the strongest mark of a criminal charge? In proof of this, his lordship referred to the cases of Lionel, earl of Middlesex, and lord Bacon, who were, on addresses, removed from their offices, and rendered incapable of ever more voting in parliament. His lordship thought, therefore, that the house should consult all such precedents as could give the least insight into the case, and as such, would vote for the motion.

Lord Auckland

rose to reply. The noble lord observed in forcible terms, on the cruelty of bringing the learned judge, whose case was under consideration, with his witnesses, from above 400 miles distance, to answer such serious charges as were alledged against him, before the house had fully deliberated and decided upon the proper mode of proceeding to investigate those charges. That mode was not, he maintained, as yet discovered; and he very much apprehended that should the house proceed farther in the course recommended by the opponents of his motion, their lordships would find themselves in the aukward and degrading dilemma of being obliged to retrace their steps.

The Lord Chancellor

in explanation stated, that he did not mean to insinuate that the object of this motion was to create delay, or to impede the progress of the investigation to which it referred; but he would beg noble lords to be assured, that whatever impediments might be thrown in the way, this business should not end until complete justice was done between the country and the individual concerned.

Lord Auckland

observed, that if the noble lord who had just sat down meant to say that, the object of his motion was merely to create delay, such language was not parliamentary, and if the noble lord did not mean to say so, his observation was altogether unnecessary. In vindication of his motives for the proposition he submitted to the house, he should only mention that he had no kind of acquaintance whatever with the learned person who was the object of this investigation, and that he was actuated solely by a sense of duty, and a desire to do justice.—The question being put, a division was called for, and the numbers were, contents 17, non contents 29; majority 12.—On the readmission of strangers, lord A. gave notice of a motion upon the same subject for Monday next, for which day the lords were ordered to be summoned.—Adjourned.