Lords Sitting of 31 May 1805

CONDUCT OF JUDGE FOX
The order of the day being read, for the house to resolve itself into a committee on the matters respecting Mr. judge, Fox; that venerable person, accompanied by his counsel, Mr. Adam and Mr. Nolan, immediately entered the house, where Mr. justice Fox was placed in a chair below the bar, habited in his judicial robes. Mr. Adam, as soon as the charges contained in the address were read at the table, requested permission to offer a few observations to their lordships, on the part of his learned client. He adverted to the peculiar situation in which the learned judge was placed, a state of accusation before the highest and most august tribunal in the country; a proceeding, forming a case of the greatest importance in itself, and still more important from its perfect novelty, and the consideration of its going to form a precedent for future ages. He then adverted to the whole course of the proceedings, from the period of their having first been instituted, by the first petition presented by a noble marquis, exactly that day twelvemonth to the present moment. He alluded to the alterations which had been made from time to time in the matters of charge; which were not only, to a certain extent, new modelled, but had even new matter, and such very recently added to them. There had been new facts introduced, he said, and charged in a different way. The learned counsel then proceeded to advert to the proceedings upon the case,

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in the out-doors committee of their lordships; a proceeding instituted from the best and purest motives; but, in this their lordships were placed, he observed, in the situation of a grand jury. The proceedings, in a certain point of view, may be regarded as ex parte; and he adverted to the advantages which would accrue to the accusing parties, against his learned client, were he not admitted to the knowledge of those proceedings. What he should have humbly to request Of their lordships was, that his learned client should be furnished with a copy of those proceedings, of which he was necessarily in the dark. The novelty of the case added to its extreme importance; and though no precedent obtained to guide their lordships' proceedings, yet, in such a case, he submitted, that the dictates of the common law, and the custom of judicial proceedings, should be allowed, to furnish some light. He expatiated upon the distinct nature of grand and petit juries; of those who were to find the accusation, and those who were to try the issue. Publicity was one of the essential attributes of justice. After most ably adverting to the circumstances of the case, and dwelling upon points calculated to illustrate and enforce it, the learned counsel concluded an eloquent and energetic speech, by submitting a request to the above effect, on the part of his learned client, who, he said, was prepared with a petition, if such was judged necessary by their lordships, for the purpose.
The Lord Chancellor then moved, that the counsel be ordered to withdraw; which having taken place, his lordship made a variety of observations on the proceeding, which had just taken place; and on part of what had fallen from the counsel. As to the proceeding requested on the part of the learned judge, it appeared to him only to involve a question of form. Among other points, he alluded to what had been advanced respecting the changes made in the matters of charge; these, he observed, might be made on various grounds, founded in the wisdom or discretion of those noble lords, who were engaged in the discussion, or who had brought the motion forward; the propriety, therefore, of advancing, that such had taken place, on any particular grounds, which any person may take for granted, he considered as very questionable.
Lord Grenville, When he considered the perfect novelty of what was then under
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discussion, would not offer an opinion upon the general case; yet it struck him as unobjectionable, and as a matter of justice, that the request made on the part of the learned judge should be complied with. He saw no difficulty in point of form; but even if some did prevail, it should yield to the more important dictates of justice; they should endeavour, as far as possible, to place the accuser and the accused on a footing of perfect equality. The previous committee was instituted on the best grounds, and in one point of view was meant as a check against persons in the important station of the learned judge, being lightly called upon to answer for their conduct before that house. The request appeared to him a matter of justice; but even were it to be considered as a matter of favour, whatever favour prevailed, should be preferable for the accused. To bring the question regularly before the committee, his lordship moved, that the chairman be instructed to move the house, that the committee appointed to investigate the matter alledged in charge against Mr. justice Fox be revived; that they may report to the house what evidence was given thereon, in order that the same may be communicated to Mr. justice Fox."
Lord Hawkesbury entertained no serious objection to complying with what was proposed. He, however, in adverting to the mode in which the proposition was made, supported the observations of his noble and learned friend on that part of the subject. He vindicated the proceedings which had hitherto obtained, from which the accusing parties had derived no advantage, but what, from the inherent nature of the case, was absolutely unavoidable.
Lord Auckland considered what had been proposed, as proper, just, and necessary. He had foreseen that such a proposition would be made. The previous investigation, in the out-doors committee, which was instituted for the advantage of the accused, would, if the present request was not complied with, operate as an engine of injustice against him. In support of these conclusions, his lordship adverted to some details of the proceeding. He thought the motion of the noble baron a good one; but still, were it amended by the omission of that part which mentions, "for the purpose of the same being communicated to Mr. justice Fox," it would be perfectly allot unobjectionable.
Lord Mulgrace, in delivering his senti-

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ments upon the subject, expressed his doubts whether the advantages alluded to Could accrue to the accusers. In illustration of which idea, he adverted to the close and secret nature of the proceedings of the committee.
Lord Grenville, in explanation, could not concur with his noble friend's idea, that the committee in question could in any degree be considered as a secret one. The noble baron also adverted to some of the proceedings therein.
The Lord Chancellor made some further observations upon the subject; he also expressed his doubts as to the advantages which could accrue from the proceedings which had hitherto taken place; but it should be recollected, that in cases of accusation in general, certain advantages lay, and unavoidably, with the prosecutor. He seemed to entertain doubts as to the propriety, considering the mode, of what was proposed; and he knew of no instance of copies of proceedings of the kind, being granted, on a similar application on the part of the accused.
Lord Auckland, in enforcing what he had before advanced upon the subject, expressed his opinion, that, in the present state of the case, it was necessary the request should be complied with. He argued shortly against the idea, that the committee in question was, in any sense, a secret one.—Some further conversation ensued, in the course of which, it was moved by one of their lordships, "that the chairman do leave the chair."—The questions were then put, on which the chairman was directed to leave the chair; and the house resuming, the resolution of the committee was reported to the house; in consequence, the committee were ordered to sit again on Wednesday next.—Adjourned.