Lords Sitting of 30 May 1805

CONDUCT OF JUDGE FOX.
The order of the day for resuming the adjourned debate upon the subject of the form of attendance, &c. of Mr. justice Fox, upon the committee of the whole house, being read,
Lord Carleton rose, and resumed his observations upon the subject. After referring to some cases and precedents, he observed that, with respect to the right of issuing writs of assistance, upon which so much stress had been laid, the act of union being silent upon the subject, regard should be had to what was the common law and custom of the realm. That of Ireland was, that the judges were entitled to receive writs of assistance, whenever then attendance in the house of lords was deemed desirable; such was also the rule and
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custom of England. The English judges did not attend as imperial judges, but as the judges of England; they had no authority over Irish cases; every principle in favour of the rights of the English judges to receive those writs, obtained equally in favour of that of the Irish judges; the case was very different with respect to the Scots judges, they had officially no seats in the Scots parliament; but that of Ireland was, by the act of union, identified and consolidated with the British parliament, and placed on a footing of perfect equality; in corroboration of this, was the circumstance, that all the members on the part of Ireland were taken from the then existing Irish parliament, and not by new elections after the union, as was the case with the Scotish members. Under these considerations, he thought the common law, rule, and custom of the realm, should be resorted to, which was in favour of the Irish judges receiving writs of assistance, who were entitled, in every respect, to be treated exactly in a similar manner with those of England.
Lord Hawkesbury entertained the highest respect for every thing that proceeded from the noble and learned viscount; but in the particular case, he rather differed in opinion from him. The present question he took to be, how and in what manner, Mr. justice Fox was to attend, if he should think fit to attend, to defend himself against the articles and charge? It was perfectly clear, that no person was admitted into the body of that house, except in virtue of a writ or summons, of one description or another. No writs, as the law at present stood, were issuable to the Irish judges, of course they were not competent to be admitted within the house. Until the point should be decided, they certainly were not entitled. Under the letter of the act of union, they were not: but it may be a future question, whether they should be entitled, by a special legislative provision. The point in question, however, he thought the house perfectly competent to decide; and the practical question was, whether, as the law now stood, writs of assistance were issuable to the Irish. If not, they were not entitled by law to come into the body of the house. The general question may be decided by various modes. With respect to the idea of the houses being incorporated; it was true that the Irish peerage were, by representation, incorporated with that of Great Britain; yet,

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it did not follow, that every appendage of the Irish parliament was identified with those of great Britain, or to be attached to the imperial house of lords. Such could not be considered as flowing from the union. At the same time, he freely admitted, that the case of the Scotish judges could not, by fair analogy, furnish an argument against the rights and privileges of those of Ireland.
The Earl of Limerick concurred in the opinion of the noble lord, that the Irish judges were not admissible within the house, except by virtue of writs of assistance. However, in the present particular case, it should be expressly declared and understood, that the proceeding of an individual should not tend to impair, still less to cede that principle of right, which he conceived, by the genuine principles of the union, to vest in the judges of Ireland. In saying this, he meant not in the least to advocate the cause of the learned judge in question, still less to say any thing to procrastinate the proceedings; but to express his wish, that any act, dictated by the judgment or the feelings of an individual, should tend to infringe or impair the rights, or the dignity of the judges of Ireland.
The Lord Chancellor said, he was as anxious to uphold the dignity of the judges of Ireland as any man in that house, but he begged their lordships to recollect that, in the present case, Mr. justice Fox was not called on to attend. He was merely at liberty to attend. The fact would depend upon his choice, which, if it was, that he will attend, he had suggested the most respectful mode and place which, under the existing law, he could be allowed. With respect to the right of attending within the house, it seemed universally acknowledged, that such could not be derived but from a writ of assistance; and, in reference to the existence of such a right in the Irish judges, there were various modes of proceeding to ascertain its existence, or to vest it, in case it may be held not to exist. For his own part, speaking as an individual, when he considered the probability of having a number of Irish causes to discuss, and when he recollected the torture of hearing such a multiplicity of Scots causes, the assistance of the Irish judges, as attendants in that house, would be very grateful to him.
The Earl of Carnarvon argued for the propriety of having the rights of the judges, or rather of the people of Ireland, decided
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on in that respect. The noble earl seemed of opinion, the right did exist, and that the people of Ireland should have their causes decided on, with the assistance of the judges of Ireland.
Lord Somerton (archbishop of Dublin) was of opinion, that by a fair construction of the act of union, the Irish judges were placed on a perfect equality with those of England. By the third article of the union, it was expressly said, that the two legislatures should become one and the same parliament. The act made no difference with respect to the rights of the Irish judges; if they were entitled to receive writs of summons before the union, they, not being deprived of that right by that act, still continued to enjoy it. All the judges of Ireland, as well as Mr. justice Fox, were concerned in the present case; what distinctions were made by the act of union in these respects, between the judges of England and those of Ireland? If they had the power of issuing those writs, they were called upon in justice to act upon it. At any rate, if the house decided contrarily to his sense, in the present instance, he hoped it would be so done as not to impair the rights of the judges of Ireland.
The Earl of Carlisle considered the question as one of considerable importance, and it should be thoroughly canvassed and solemnly decided upon. The right might be found rather to lie in the parliament of Ireland, than in the judges. The act of union was silent upon the subject, and the existence of the right should be ascertained, previous to any proceeding hostile to it taking place.
The Earl of Radnor seemed of opinion, the question should be decided upon; at the same time, it should be considered, that, though by the union, the two parliaments were made the same, the judges were not members of that parliament; throughout the whole act no idea of the kind seemed to be entertained.
Lord Carleton, in explanation, observed, that, whatever the decision of the house might be with respect to the forms of proceeding—whether in his mind suitable to the dignity of the judges or not; it was natural to suppose, that the strong interest which the learned judge must take in his defence, would urge him to come forward, therein. In that view of the case, he thought the question of right ought to be previously decided.
The Marquis of Sligo regretted that such a discussion could be deemed necessary, and seemed to deprecate proceedings which would go to place even Irish judges in a situation where an English judge would not be placed; and to think that a decision, as to the right, should be previously made.
Lord Holland was of opinion the house should not come to a hasty decision upon the point at issue. He was equally adverse to doing that which might be contrary to law, on the one hand, or of instituting a proceeding which might tend to take away the right contended for, on the other. He thought the interposition of the previous question, as the case then stood, would not be an improper mode; they should not do that hastily which might tend to prejudge a question of such great and various importance.
Lord Auckland thought that a middle course might very well be adopted; such as should leave the question of right suspended. He would, therefore, propose to amend the original proposition, by inserting, after the words, Mr. justice Fox, "that not receiving a writ of summons." This would leave the question open for future discussion, by assigning, as a reason, that it was in consequence of his not receiving a writ of summons, that the proposed mode of proceeding was adopted.
The Lord Chancellor thought the amendment unobjectionable; at the same time, he wished to explain, in answer to what had been thrown out by some of their lordships, that he had no doubt whatever as to the existing law, and he was surprised that, ever since the union, not one idea had been suggested of the rights of the Irish judges to attend the imperial parliament, until this case of Mr. justice Fox occurred. The amendment asserted no law, but left the case open to future discussion, or to the application of legislative measures with respect to it.
The Earl of Carnarvon did not approve of the amendment. It appeared to him of an evasive nature, and he thought the attendance of the learned judge at the bar would be a practical decision on the case.
Lord Holland considered the amended as worse than the original proposition.
The Earl of Carysfort considered the at?tendance of the judges of both countries as a right of the united parliament, and of the subjects of the realm; as a right which they could be held as destituted, because
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it was not specifically mentioned in the act of union. He seemed to think the present discussion would be better postponed, until the general question should be decided. He allowed the amendment would still leave the question open, but still he had serious doubts as to the effect of the actual proceeding.—After which the question was put on the amended motion; which, in effect, was, "that if Mr. justice. Fox should think proper to attend the committee of the whole house, he should, 'not having received a writ of summons,' be accommodated with a chair at the bar." On this their lordships divided; when there appeared for the amended motion, 18; against it, 10. Majority, S.—Adjourned.