HL Deb 22 May 1805 vol 5 cc46-9

The order of the day being read,

The Marquis of Abercorn

moved an address to his majesty, in which were embodied various matters of charge against Luke Fox, esq. one of the judges of his majesty's court of common pleas in Ireland. The charges enumerated were, with a few exceptions, those contained in the petitions presented, and the articles of complaint preferred against Mr. Justice Fox, and respecting the alledged misconduct of that judge, while employed on one of the circuits in Ireland. The address concluded with praying his majesty, that therefore he would be graciously pleased to remove, the said Luke Fox, esq. from his judicial situation.—The noble marquis simply moved the address; which being read by the clerk,

Lord Hawkesbury

said, he should move two propositions on the address now read; first, that it be referred to the consideration of a committee of the whole house; and, secondly, that the house should resolve itself into a committee, for the purpose of enquiring into the truth of the facts alledged in the said petition.--On the question being put,

Lord Auckland

rose, and stated a variety of objections against the proposed line of proceeding. He had frequently urged his sentiments as to the propriety of commencing proceedings in that house upon matters of mere misdemeanour. He submitted whether it did not go to call upon any individual to come forward in his defence, upon matters alledged by any member of that house in his place? Though, at the same time, he confessed, that the mode now proposed was infinitely less exceptionable than the course adopted in the first instance. Besides, there was more than one difficulty which would attend the proceeding in question; they would have to enter upon a detailed examination of the whole case, and then perhaps have to call upon the accused gentleman for his defence. Another consideration adverted to by his lordship was that of the great and unavoidable expence to the parties, which such a mode of proceeding must occasion. The very advanced period of the session was also to be considered; a period, at which all their lordships must feel it was almost physically impossible to get through the business.

The Lord Chancellor

spoke at some length, and with great ability, upon the question. He expressed his hope that by their lordships promptly and sedulously applying to the investigation of the business, at least, on the part of that house, it might be got through during the present session. He had to observe the great delicacy of the learned person who was accused, in abstaining from the exercise of his judicial functions, though to his great pecuniary loss, while the accusation was pending; this consideration should combine with those of justice to the individual and to the country, to induce their lordships to make an effectual struggle speedily to come to a decision upon the subject. It had now proceeded so far, that the mat ter must be investigated. With respect to the doubts of his noble friend, as to the jurisdiction of the house, whenever the, question upon that head, and he trusted that whatever should come to be discussed, he would meet it, and in a way, he trusted, to satisfy the house. If any objections should be made upon that principle, they would be, discussed coolly, temperately, With attention, and with a determination to make every due and proper allowance. He would not now enter upon the points alluded to by the noble lord: all, as expedient at present, he claimed, was, the power to address in cases of proved misconduct of a Judge, in the execution of his office. This, at least, would be allowed, On a clear proposition, that by the principles of the constitution, and the letter of the law, both houses of parliament were, in such a case, entrusted with a discretionary power. After expatiating upon these points, he stated his opinion, that such a case as the present, upon principles of policy and of justice, should be commenced with reference to an address for removal, in that, preferably to the other house of parliament. With respect to the address, as proposed by the noble marquis, he submitted the expediency of leaving out some particular parts of the facts charged, on grounds upon which the house was to proceed; for instance, the application alledged to be made by the learned person, to the commanding officer of a corps, to use his influence therewith to procure an address, &c. Such conduct would be certainly unguarded, and such as he could not mean to justify; but in the particular case, he thought it would be preferable to confine it to motives relative to the conduct of the accused, in his situation of judge. Were these omitted, it would be much better, and, as the case stood, there was a pressing duty upon the house, to enquire into the facts. As to the specific line of the proceeding in the committee, it would of course depend upon what they should find in proof, and what not, and it would be open for the house to give its instructions from time to time.

The Earl of Carlisle

strongly supported the objections of his noble friend (lord Auckland). Commencing with the business de novo, it would be impossible to get through it this session. After their investigation, perhaps, the commons might have to take it up; the result of which might be, to oblige their lordships to decide upon it in their judicial capacity. He disapproved of the whole course of proceeding hitherto adopted. Far better would it be, to have put the matter in a course of impeachment, at first; and, to his mind, nothing short of a favourable decision of the house, in their judicial capacity, could restore the accused gentleman fully to the enjoyment of an unsullied character, in the estimation of his country.

Lord Holland

argued on the same side. The novelty of the case, he observed, rendered it of greater importance, and their lordships should be more cautious as to the precedent they should set. Perhaps, in the enquiry, impeachable matter should come out, which of course, would go to place them eventually in a judicial situation. The proposed mode would, therefore, be as unfavourable to the ends of justice, as to the dignity of their lordships' proceedings.

Lord Hawkesbury

spoke in answer to some general observations made by the last speaker. With .respect to the particular case under consideration, he observed, that the advanced period of the session, and the circumstances of the delays which had hitherto occurred, should be a stimulus to their lordships to begin the proposed enquiry, as soon as they could, to go on as long as they could, and, if they were not able to terminate it this session, to do all in their power to do so. However, with respect to that house, he thought it far from impossible to conclude the business this session.

The Marquis of Abercorn

expressed himself willing to acquiesce in what was suggested by the noble and learned lord, in expunging those parts of the address alluded to; but this acquiescence Was founded in reasons very different from those which were urged as adequate for such an omission. He could not assent to the idea, that a judge was not to be called to a parliamentary account, except for his official conduct us such. The noble marquis then explained the specific grounds on which he entertained no objection to expunge the particular parts alluded to.

Lord Mulgrave

was of opinion, that no article of charge, which would not of itself be sufficient to ground an address of removal, should be considered by the committee; such a regulation would tend greatly to expedite their lordships' decision, which he was inclined to think might very well be made this session.

Lord Harrowby

expressed his concurrence in the opinion that a judge may be guilty of several acts, besides those he may commit in his judicial capacity, which would render his removal necessary and proper; there were also several acts of a judge, on which it may be proper to ground an address for removal, and still not amount to a cause for the more serious proceeding of impeachment.--The marquis of Abercorn, who had been permitted to withdraw the address, for the purpose of making the suggested omissions, returned the address so amended. The questions were then regularly put, and the address was ordered to be referred to a committee of the whole house on Monday next, for the purpose of an enquiry into the truth of the facts alledged therein. The petitions, &c. which had been presented, relative to the complaints against Mr. Justice Fox, were referred to the said committee; and, on the motion of lord Hawkesbury, a copy of the address was ordered to be furnished to Mr. Justice Fox.—Some conversation arising between lord Auckland, the lord Chancellor, lord Hawkesbury, and other peers, about the proper forms of proceeding, the attendance of Mr. Justice Fox, &c., these points, particularly the question, "where and how" Mr. Justice Fox should attend? were, on the motion of the lord chancellor, ordered to be taken into consideration on Friday next.—Adjourned.

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