Lords Sitting of 19 June 1806

PETITION OF JUDGE FOX.
Lord Grenvillemoved the order of the day for taking into consideration the Petition of the hon. Mr. Justice Fox. The Petition was read by the clerk as follows.
"To the right hon. the Lords Spiritual and Temporal of the united kingdom of Great Britain and Ireland, in parliament assembled: The Petition of the hon. Luke Fox, one of the justices of his majesty's court of common pleas in Ireland:
"Humbly Sheweth; That the petitioner in the summer of the year 1803, went, as one of the judges of assize, upon the north west circuit in Ireland, where he discharged the duties of his office, to the best of his judgment, according to law, and the solemn obligation of his oath, by which he was bound to do justice indifferently, without respect of persons.—That as long after the conclusion of that circuit as the 31st of May 1804, a petition was presented to your lordships by John Hart, esq. complaining of certain parts of the petitioner's conduct in his situation of judge, at the assizes held at Lifford on the said circuit; and in the month of July 1804, two other petitions, apparently influenced by the example of the said John Hart, were presented to your lordships; one in the name of Wm. Armstrong, and others; and the other in the name of Gerrard Irvine, esq. further complaining of your petitioner's conduct at Inniskillen on the said circuit.—Your petitioner begs leave to inform your lordships, that he received no previous notice, from any person, that it was intended to make his judicial conduct the subject of public complaint; and he was first apprised of the same by the common newspapers, having been at the time occupied by the duties of his office in Dublin; but anxious to rescue his character from any

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imputation, and deeply sensible of the public injury which must result from permitting charges, however unfounded, to remain suspended over a person appointed to administer justice, your petitioner came forthwith to London, for the purpose of vindicating his character, and taking the necessary steps for his speedy and immediate defence.—That on the th July 1804, certain articles of complaint, founded upon the aforesaid petitions, and other matters, were presented to your lordships, and laid upon your table; but parliament was soon afterward prorogued, and your petitioner had to return to the discharge of his functions of a judge, oppressed with the weight and obloquy of a public accusation preferred in his absence, to the highest tribunal in the realm, and precluded from all means of vindicating his character, or defending his conduct, until a future session of parliament, by reason of the complaint against your petitioner not having been brought forward by his accusers, till near the close of the session, when it was impossible to have any effectual proceeding thereon.—Your petitioner respectfully submits to your lordships, that in a business of such serious importance to the administration of public justice, as that of a criminal accusation against one of his majesty's judges, it might reasonably have been expected, that the articles of complaint presented against him would have been framed upon great deliberation, and with scrupulous caution; the more especially from the extremely harsh nature of the charges themselves, and the delicate situation of the person, to whom guilt was thereby imputed;—for all which considerations, the great length of time which had been suffered to elapse, after the conduct complained of was alledged to have taken place, and before any charge was made, had afforded more than sufficient opportunity; notwithstanding which, the said articles were altered in the beginning of next sessions, and particulars of complaint were then presented to your lordships, containing a new charge of a very aggravated nature, which, with several other articles, not fewer than five in number, have been since withdrawn.—That early in the sessions of 1805, a committee of your lordships was appointed, which every peer had a right to attend, to consider of the matter alledged against your petitioner, and of the evidence which might be brought in support of the same; at which time your petitioner was again compelled to forego the discharge of his judicial duties, and to at-
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tend upon your lordships for the purpose, as he hoped, of being then allowed to enter upon his defence; but was then prevented a second time from appearing in his own defence, by the nature and constitution of the said committee, at whose proceedings it was not permitted to him, nor to any person employed on his behalf, to be present.—That after a considerable part of the said sessions had been employed in examining into the matters then alledged against your petitioner, and after several witnesses had been examined in support of the charges theretofore preferred against him, to your petitioner's very great surprise, the matter of complaint against him was again altered, new modelled, and changed, by withdrawing several of the particulars of complaint which had been before presented, and most strongly insisted upon as highly criminal, by amending and changing, in material parts, those that were suffered to remain, so as to make them different in their nature and effect, and by introducing then, for the first time, other charges altogether new; by means of which continued fluctuation of complaint, your petitioner was involved in the most cruel perplexity, and became utterly uncertain what the charges might be against which he might ultimately have to defend himself; whilst his character was in the mean time deeply wounded by this apparent multiplicity of charges, thus publicly and solemnly presented to the highest court of judicature in the realm, as grave and solemn matters of just complaint against one of his majesty's judges.—That on the 22nd May 1805, it was moved, that an humble address should be presented to his majesty, to remove your petitioner from his office, grounded upon such new, altered and amended charges: whereupon your lordships ordered, "that your lordships' house should resolve itself into a committee of the whole house, upon the motion made for an address to be presented to his majesty, to remove your petitioner from his office of judge, and to enter into the facts alledged on the said motion."—That on the 31st May 1805, and on various subsequent days, during the continuance of the last sessions, one of the charges stated by the motion, contained in the petition of Wm. Armstrong and others, was proceeded in at your lordships' bar, when no further progress was made, than to examine the witnesses produced in support of the facts alledged in the said petition; in the course of whose evidence it appeared, that your petitioner's

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accusers and their witnesses have been all paid the expences incurred by them in prosecuting their complaints, out of the public money.—Your petitioner feels himself bound to state to your lordships, that several of the remaining charges would probably, from the nature of the allegations contained therein, occupy more of your lordships' time than that which has been thus heard in part.—Your petitioner, under these circumstances, feels himself called upon to state most respectfully to your lordships, the many grievous hardships which result to him from proceedings which are novel in their nature, and harassing by their delay—which subject his character to continued public obloquy, which he has had no opportunity to remove or repel, and which are almost ruinous to hi private fortune; the pressure of which is the more severely felt by him, inasmuch as the expences of his accusers have been defrayed out the public treasury.—Your petitioner, penetrated by a lively sense of the many difficulties, and hardships, to which he has been subjected, without an imputation on the uprightness or integrity of his conduct, wounded in his personal and judicial feelings, and still more deeply affected by he embarrassment, so long suspended over the administration of justice, at this advanced period of the third session, in which his name has been coupled with parliamentary accusation—Humbly prays your lordships to consider the nature and circumstances of his case, and to make such orders therein as to your lordship's wisdom and justice shall seem meet. And your petitioner will ever pray, &c.
(Signed) LUKE FOX."
Lord Grenvillethen rose and addressed their lordships as follows:—My lords, while your lordships were occupied with so much laudable industry and perseverance in discharging that important duty which devolved on you in consequence of the Articles of Impeachment preferred by the house of commons, it was admitted that it would have been improper, not to say impossible, for your lordships to have said what course you would adopt with respect to the present matter of complaint. The proceedings have hitherto amounted to nothing more than postponement, from time to time, of the order for the attendance of the witnesses; and it was understood that such delay should operate no prejudice to the question on either side, when the period should arrive at which your lordships could enter into its discussion. That period has
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arrived, and your lordships are now called upon to decide, whether, after the laborious investigation in which you have so recently been engaged, you think it expedient or advantageous that you should enter into a new one, which, from the nature of the charges, and the experience you have had, you must be convinced, cannot fail of proving equally extensive. On this subject I have no hesitation in stating what is my decided opinion. Resting it merely on the advanced period of the session, and the nature of the case, I think we are called upon to come at once to a final determination. But, my lords, I have much and more important objections to the proceeding. It has often been felt by me as an indispensable duty in the course of this proceeding, to state the clear conviction I entertain, strengthened as it has been by every opportunity I have had of examining it, that this proceeding is ab initio wrong—that it is carrying on before a court not competent to enquire into it, and that it is in a course in which it cannot be brought to the issue proposed. My lords, this conviction rests on plain and broad considerations, which, the more they are examined, the more they will be found to be the undeniable law of parliament, and from which results this position, "That no criminal complaint can be preferred and proceeded upon in this house." That this house can try criminal matter upon impeachment by the commons, or as a court of appeal, by appeal, or writ of error, I admit; but in no case whatever, with the exception of the maintenance of its own principles and privileges, can it entertain any criminal jurisdiction. In stating this, your lordships must all be aware, I am only stating that which is laid down by all writers on the law of this country, and received by all the authorities in the constitution. Therefore those who maintain there is an exception, ought to think it incumbent on them to produce a new law, which has weakened the force of the old law—a new resolution of parliament, which has weakened the force of a former resolution—a new precedent, which has weakened the force of more ancient precedents. We know, my lords, what was the answer given by lord chief justice Holt, long since the Revolution, upon a complaint being preferred against him, for what was alleged to be the undue exercise of his judicial functions. His answers was, that he was bound to exercise his judicial functions according to law and the best of his judg

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ment, and that his conduct was not liable to be examined before your lordships. In that answer this house acquiesced; thereby establishing a complete conclusive precedent applicable to the present case. Here was a decision where the same question as the present one was brought under consideration, where the person accused was distinguished for his knowledge of the laws of his country, where the subject matter of accusation had recently occurred, where the whole of the circumstances were brought before the house, and where the demurrer to your jurisdiction being thus solemnly made by one of the greatest lawyers of his time, was upon mature consideration admitted by your lordships. When I have said this, it seems to me, my lords, that I have exhausted the whole question. There are no instances, save those which have been condemned, save those cases which gave rise to the condemnation of the principle: no instances, if I remember right, where there has been the least ground of precedent for this house entertaining originally any complaint of a criminal matter. The doctrine for which I contend rests on the general principles of the constitution, on the statute law, on the resolutions of parliament, and on precedent. It rests also on the reason and analogy of the case; on motives of convenience so strong, that if even there was no authority to quote, the argument of convenience, which in a doubtful case might be allowed to prevail, ought unquestionably to prevail in this. My lords, by the constitution of this country, which we have recently been called upon to put in action, the house of commons are the grand inquest of the nation—all crimes are cognizable either in the ordinary courts of justice, or in the high court of parliament; but it is no more competent for any other court of justice to outstep the limits of its constitution, or to entrust to judges the functions of juries, or to juries the functions of judges, than it is for your lordships, as one of the component parts of parliament, to invest and make yourselves, not the judges only, but the accusers. I contend that the house of commons is the grand inquest of the high court of parliament: that it is competent for them alone to bring commoners before your lordships for high crimes and misdemeanors. Even in the case of peers, the inquest is preferred elsewhere, and the bill is removed to your lordships house, in order that you may proceed. Therefore I maintain, that in the present
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case there is a subversion of this practice. The articles of complaint state what may be said to amount to high crimes and misdemeanors in a judge. Shall not, then, a judge be entitled, in the execution of his office, to the same security as any other individual? I would ask your lordships, whether any thing short of the most positive, clear, and undeniable stream of precedent, ought so to alter the constitution of this house, as to make those matters cognizable by original complaint in the case of a judge, which are not cognizable in the case of any other subject in the country, be the charges against him what they may? I was proceeding, my lords, to refer to the argument of convenience. Nobody can say, that this proceeding can oust the house of commons of their constitutional functions. If it cannot have that effect, let me ask in what situation do you place yourselves, the house of commons, the party in this case, and every other person who may be a party in a similar case, by continuing your endeavours to establish a precedent so destructive of the analogy of all legal proceedings? I will suppose that your lordships proceed to judgment. What is that judgment? It is a motion and address concerning things done, not in your judicial, but in your legislative capacity. After entertaining the complaint of the crime, not upon the suggestion of an individual peer, but of the parties pretending to be aggrieved; after entertaining the complaint of a personal wrong, committed in execution of the office of justice; after entertaining the case in your judicial capacity, when you come to the conclusion, you form yourselves from your judicial into your deliberate capacity, proceed to an address, which is nevertheless to have the effect of the severest judgment; but when you have so done you must communicate your proceedings to the house of commons. The house of commons has hitherto no knowledge of any part of this transaction. If it comes to their knowledge by the communication of your resolution, the house of commons may adopt a certain line of proceeding, of which you cannot divest them. If they think the charges are matter of high crime, they may entertain them as such, and if they are of sufficient importance to be proceeded in, it is their duty to impeach at the bar of this house. Then see in what a situation we stand. Every one of your lordships would be liable to challenge upon the mere fact that you had already decided. I would ask, whether there could be a situation

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more degrading, more likely to cast scandal on parliament, and more certain of bringing the subjects of the country into irretrievable calamity, than for a man to be called upon to answer a charge before the same judge, who in another stage of the accusation had pronounced him guilty? And yet, if this proceeding goes on, there is no alternative but to admit that horrible inconvenience, or to say, that the act of this house shall prejudice the right of all the commons of England, and deprive them of their undoubted privilege. These are inconveniences which arise, not out of this particular case, but from a proceeding which is contrary to the precedent and resolution of the house—a proceeding for which there is no precedent, but against which there is a precedent of the strongest and most conclusive kind that ever existed. I am now to state what the inconveniences are which result on this particular case; and here let me observe in the little I have to say, that no part of my opinion of the proceedings of this day rests in any manner, or can be in any manner argued, upon what the witnesses have said at the bar. Where-ever merely the evidence on one side is heard, it can only be considered as ex parte evidence. Whatever therefore may have been sworn, nothing has been proved—nothing is proved till the witnesses on both sides have given their testimony. I wish to have it clearly understood, that no part of the opinion I entertain rests in the smallest degree on the facts I have stated, that I am convinced we are proceeding against the law and the constitution of the country; that we are engaged in a proceeding which will deprive the house of commons of one of its most valuable and important privileges, or bring the whole court of parliament into slander and disrepute. It is not only a suggestion individually by a peer in his place, but it is the complaint of parties stating themselves to be aggrieved. My lords, in every case of wrong, the laws of this country have provided a lawful remedy. In every case of crime, the laws have pointed out a lawful course of prosecution. If it is the intention of any noble lord to argue this case, by saying that we are beginning in a course of deliberate consideration, I answer, that we are proceeding in a case of crime and misdemeanor, and it does not become your lordships, who are not a court of original jurisdiction, to entertain, at the suggestion of parties, either a matter of private wrong, or of crime and misdemeanor,
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which can only be brought on in the commons. This is a case as clearly excluded, not from your power, perhaps, but from all lawful and prudent exercise of your power, as if your lordships were to decide whether an individual, who was to be tried before another court, had or had not committed murder. You are called to try that which is matter of trial in the court below, which may eventually be brought here, and therefore ought not to be prejudiced. If it be incompetent for this house to entertain the complaints of private parties, how much more strongly ought prudence to induce you to adhere, with the most scrupulous attention, to the rule for which I am contending, especially where the party aggrieved is in the situation of an officer or at least of a person exercising functions in the court. If you once open the door to this question, I ask your lordships, whether other subjects of the country will not think themselves entitled to the same sort of redress as Mr. Armstrong, one of the petitioners in this case? How will you henceforth shut your doors against any person, who, instead of prosecuting his complaint in the ordinary way, shall come to your lordships and say, that the judge of the last assizes decided a cause against him, or that he made some observations reflecting upon his character as one of the jury? He might say, I know other modes of redress are open to me, but I prefer coming to the bar of this house, to desire your lordships to investigate all these matters, and to go into the whole trial of John Nokes and Thomas Styles. Where can the line be drawn between the personal grievance of any man, by Mr. justice Fox in Ireland, or the grievance of any person in this country, who may think proper to quarrel with the verdict of the judge the next summer assizes? See also in what a situation you will place the judges. Against all other modes of proceeding, they have their protection. They know the confidence which the law reposes in persons invested with the judicial character. They know the power the law gives them, and the high responsibility attached to them; but they are not prepared to know that every time they give their opinions, or deliver a charge to a Grand Jury, which may happen to be disapproved, they are subject to be brought before this house to defend themselves by counsel, and to be obliged to produce evidence to satisfy your lordships that their opinions were right. Even

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if they ultimately succeed they will be certain of undergoing an ordeal of at least three, and perhaps of seven or fourteen years. I cannot conceive a principle more injurous to the administration of justice, or more dangerous to the independence of the judges. You leave it to the pleasure of every person to complain of a judge whenever he may think proper. Your lordships, as a branch of the legislature, have said, that there shall be no reduction from the salaries of the judges; that they shall not even pay towards the exigencies of the government; yet though you determine that neither the crown or parliament shall curtail them, you allow the worst individual of the country, whose conduct may have subjected him to the animadversion of a judge, to do what will produce the same effect. By suffering him to bring his complaint to the bar of this house, it is in his power to amerce a judge to the amount of his whole salary, and to deprive him of the recompence of his labours for the public. This is not a case in which you will have to pronounce upon your honour, but you are to exercise an extraordinary power, stated to be given you by an act of parliament. With respect to the act of parliament, it has been said, that unless you admit the power of the house of lords, there is no clause in the act by which you can give effect to the clauses for the removal of the judges. In my opinion there is a way by which the clause may be satisfied, without drawing from it by a side wind a conclusion in favour of the authority exercised by your lordships. There are many other cases, with regard to which matters may arise for the exercise of the discretion of the house, without the necessity of your lordships deciding originally. A judge may be in a situation of notorious incapacity from age, and yet it may happen, that through the peevishness natural to age, or ill humour, or some other cause, he may wish to adhere to his situation, after he has been, in the opinion of all mankind, rendered unfit for its duties. That this would be a painful necessity for the interference of parliament, no one could doubt, but it would be a case in which some mode would be devised to recompence the person removed—there would be every wish on the part of this house to afford consolation to a person arrived at such an age. Another case may be supposed. It would be, where a judge had been convicted elsewhere—liable to the same equal laws which he administered to
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others, but of which a proceeding of this kind would deprive him— having the benefit of an inquest of a grand jury, and afterwards upon being tried by a court competent to decide, convicted of the matter charged against him; it might be a proper exercise of your lordships functions to say, that although such conviction was not for a misdemeanor that induced the forfeiture of office, yet it rendered him unfit to be continued in the exercise of the judicial functions. Having had the benefit of a trial by jury, he would, after conviction, be a fit object for the discretionary exercise of the power of this house to advise his majesty to remove him from a situation which he could no longer fill with propriety. That it would be well to satisfy every clause in an act of parliament, I agree; yet I would wish that some should remain unsatisfied rather than you should assume a jurisdiction so inconvenient to exercise, and so perilous to the subjects of this realm. One thing remains to be said. Suppose you were now called on to consider only the question of expediency. We have arrived, by no want of diligence on the part of this house, at a period of the session in which no man can lay his hand on his heart, and say, that whatever may be your desire, such an attendance can be procured as every man would wish to see upon such an occasion. When you are called upon to arraign an individual, and that individual a judge, every one must be anxious that the attendance should be as full as possible. It is therefore I conceive utterly impossible that this proceeding can go on in the present session of parliament. Then the question is, whether the proceeding, being necessarily, by no fault of your lordships, postponed to a period of the sessions in which it cannot be proceeded in, shall it be kept hanging over the head of the party, and that party a judge, who, it is not pretended, ought to be divested of his office till a final hearing? Let me ask your lordships, whether it must not be detrimental to the country to continue a judge in such a state of suspence! Should he, who is in the constant course of administering justice to others, and arraigning others, be at the same time arraigned himself before your lordships as a criminal? I do conceive that no expediency can justify the hardship to the individual, and the inconvenience to this house. I heartily wish the matter had never been mentioned. If my poor voice had been heard it never would. You are entertaining a proceeding

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which I consider unlawful, and shall feel it my duty to take every opportunity of condemning. I am the more called on to do so, when I think there is not the slightest ground of expediency. The same course Which in this case is illegal, is inconvenient and inexpedient, and in all its effects most destructive of that object which your lordships can only have in view, the securing the due administration of justice to the people of Ireland. Nothing, I am convinced, can tend more to weaken the authority of the law, and to render more prevalent disobedience to the law, than a proceeding of this nature. No man is more desirous than myself that your lordships should discharge the duties you all owe to the united kingdom. No man can be more desirous than myself to provide, that in every part of the united kingdom a strict attention shall be paid on the part of every judicial and executive magistrate to those principles, by which alone any country can be well governed. To govern solely according to law, is the grand secret. It has been shewn by all history, that the only mode by which any part of any dominion can be well administered, is to govern strictly and conscientiously, according to the letter of the law, without admitting of the least deviation. In order to secure this, you must secure respect to those who administer the law; and, in my conscience, I think nothing can be less calculated to secure it than such a proceeding as this is. If any judge has transgressed, the law is open. If he has acted criminally, let him be acted against criminally. It is in that manner we ought to teach the subjects of the country, high and low, that all are on an equal footing. By any other course of proceeding, by any deviation from the settled rule of law, be the arguments of convenience ever so pressing, nothing can result. but opinions destructive of all principles of obedience to the law. My lords, it is upon these grounds that I am about to move that the further proceeding be adjourned to this day two months. I do not wish to carry any prejudice to either side, though I should be well prepared to dismiss the subject altogether; yet if I had shaped my motion to that effect, it would imply an opinion. It is for that reason I have moved to adjourn it to a day when this house in all probability will not meet. But I think no. man ought to vote for the motion who is not prepared to say that the matter cannot be revived. Other modes may still be open, but this
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proceeding will be no longer open if the mode I propose is adopted.
The Marquis of Abercornbegan by observing, that were the house prevailed upon to concur in the motion of the noble lord, they would take a step, he was thoroughly convinced, which the country might have for ever to lament. He contended for the full eligibility of that house to entertain and discuss a complaint preferred on the motion of any of its members, and without reference to what the other house of parliament might do or not. To abandon such a principle, would be to deviate from a line of conduct often acted Upon by their forefathers. But the present was not the time for a consideration of that kind, the period was past; on its preferable line of proceeding, the house had repeatedly and solemnly decided, and even confirmed it by a legislative measure at the close of the last session, which authorised the carrying on these proceedings in the present. When he considered what had been already done, the orders repeatedly made for the attendance of witnesses, who had come from distant parts of Ireland, and which implied a pledge of farther proceeding, he was at a loss to reconcile it with a principle of good faith and justice to their fellow-subjects in that part of the United Kingdom. These witnesses came many a weary mile, by sea and land; they were encouraged to come thus far, and felt an assurance that the case would be proceeded with. Were the contrary line adopted, it would not be too much to say it would be both seen and felt. In considering the present momentous question, he felt it incumbent on him to remind their lordships of the circumstances of the case of what it was the learned judge, whose conduct gave rise to the pressent discussion, stood charged, the particulars of his conduct in those respects, and the proceedings at different times adopted in that house, from the time at which the complaint was originally preferred by hint, to the present period. The noble marquis then entered into an exposition of the facts and circumstances specified in those articles of charge, which have been long before the house and the publick. He first particularly adverted to the adresses, which he described the learned judge as endeavouring to procure,
for the removal of that amiable and excellent nobleman (the earl of Hardwicke) who sat near him, from the vice-royalty of Ireland; a line of conduct, which, in one of his majesty's judges, of all others, he deem-

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ed most worthy of reprobation. He next adverted to his conduction the levy of excessive fines; and referred to some extracts to shew, that in one summer circuit, in three counties only, lie levied fines to the amount of 1435l.; when Mr. Justice Osborne, who presided as crown judge, did not deem it necessary to fine any individual a single farthing. On this part of the subject, the levying of excessive fines, including the conduct of the learned judge in question, to Mr. Irwin, then high sheriff of the county of Fermanagh, his lordship expatiated at length, and reprobated the conduct alluded to in strong and animated language, as tending to establish a species of precedent of the worst kind; and one, more than any other, likely to be injurious to the rights, and destructive to the properties, of every description of his majesty's subjects. Considering the difficulty and danger which had for many years attended the fulfilling of civil duties in Ireland, particularly during periods of commotion, when assured security was only to be found by the well-disposed in activity, it was essentially necessary that persons in the exercise of their duties should be protected from oppression, and the hazard of having their well-intended exertions converted to their injury and shame, in a quarter where they were most intitled to commendation and protection. The key stone of the virtue of .juries was their independence; and since the days of judge Jefferies, this was the first instance in which that independence had been attempted to be subverted. It was not their own forwardness and presumption, but the constitution of the country that put men forward into the situation of jurymen; and if, in the exercise of their functions and honest opinions, they were to be subjected to indignity, and to have their reputation assailed by a stigma, attempted to be affixed to their names for life, their situation would indeed be lamentable, and the high-prized privilege of Englishmen converted into a curse. The case in question was not one in which the judgments of their minds could be warped by any political or private prejudices. It was a case of murder; and entertaining a doubt, they had followed that maxim, of no mean authority,"better that fifty guilty men should escape, than that one men should suffer unjustly:" Yet, for having returned a verdict of acquittal, they were themselves brought into court, and a sentence of infamy and excommunication passed upon them. The noble marquis next alluded to
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the case of Mr. Hart, who had been called to the dock, and publicly branded with opprobrium, and a Charge of perjury, by the learned judge, from the bench, for having given a character to a prisoner who had served him in the capacity of agent. The case of this gentleman, his lordship said, might have been that of any other gentleman in Ireland, who received his rents through an agent. What became of the boasted rights of the people of this country, that every man was to be considered innocent until proved guilty, if a judge was not only to determine on the guilt of the party before him, but to deter others, by a dread of censure and infamy, from expressing an opinion of his innocence, and of his general character? What would be the situation of the country, if the power of judges was to be exercised uncontrolled? What, if this first application to parliament on such a subject was rejected; or, which was worse, half heard? And what became of the compact of union, to which their lordships had pledged themselves, and to which the Irish people looked for the protection of their lives, liberties, and property? The spirit, patience, perseverance, and zeal they had manifested to stand by those who stood by them, entitled them to have justice purely administered, and to redress, when it was vitiated or denied them. The interest and prosperity of the country at large, at home, and her consequence and splendor abroad, equally required it. If their lordships proceeded in this charge, they would afford a solid assurance to the people of that country, that for private wrongs they had redress at law; and for constitutional wrongs redress by the attention of that house to their application; and would shew, that neither power nor talents, neither dignity nor reverence of situation, was sufficient to protect the possessor from the consequence of guilt and public abuse.
Lord Eldonsaid he should give a most decided negative to this motion. He knew, as well as any man, the importance of preserving the independence of the judges; but there was something equally dangerous with a condition of dependence, and that was, that they should be placed above all law and all controul. He did not see how the enquiry could be dismissed, unless the evidence before the house were erased from the journals. The noble lord, who now sat on the woolsack, was well acquainted with the importance of the "Trial by Jury," and had selected for his motto this

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distinguishing character of British jurisprudence. What Would he say to the repeated violations of this mode of trial, which appeared on the evidence to have been practised by the learned judge whose conduct was the subject of enquiry? The mode in which the examination had proceeded was not open to the objections stated by the noble lord who made the motion. It was perfectly regular, that the houses of lords and commons should jointly address the throne for the removal of an unjust judge; and it would be in the greatest degree indecent, if such an address were not preceded by patient and deliberate inquiry.
The Lord Chancellorwas extremely sorry, at that late hour, to solicit the attention of their lordships, but he could not avoid making a few observations. When this subject first came before their lordships, he was a member of the commons house of parliament. The learned judge, whose conduct was referred to, had applied to him to appear as counsel, but he had declined all interference, as he understood the object was to remove this high officer from his judicial functions, and that could not be done without the assent of time representative part of the legislature. From this circumstance, and the little expectation he entertained that this subject would so early be submitted to the determination of their lordships, he had not prepared himself by any previous examination of the evidence; but holding the important situation he did, it would be absurd for him to say, that he could form no opinion on the matter now before their lordships, because the merits of it depended on the existing law, and not on the testimony collected for the purpose of this investigation. The noble and learned lord who spoke last had said, that there were indeed parts of the evidence which would attract the particular attention of him who had the honour of then addressing the house, and because he knew his sentiments, and saw upon the carriage which came to the door of their lordships, the motto to be borne with the armorial insignia of the Erskine family through all future generations—that motto was, "Trial by Jury:" although he (the lord chancellor) had been engaged in the hottest times in the defence of that cause, he did not, by the trial bu jury, mean to imply any thing distinct and separate from the judge who presided at those trials: it was the trial by judge and jury which attracted his respect and admiration, and he had learnt to di-
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rect his veneration to it by an illustrious nobleman (lord Camden) whose sentiments to him were not matter of history, but of personal knowledge, for he was the friend of his youth; and that personage, to the "judicium parium," had added terms expressive of his regard for that valuable part of the constitution of a court, which was immediately concerned in expounding the law referable to the facts before the jury. Since his noble and learned friend had adverted so particularly to him, he would remind him of another circumstance which might lead that noble person to suppose that he (lord Erskine) valued this mode of trial too much to admit any part of it to be impaired. Did any man ever go further than he (did, to remind judges of the duties they. owed to their country, for which he had been publicly rebuked, but which he returned, he trusted, with honest indignation? it was his pride, that in the course of his professional occupation, he had been honoured ?with a gown of precedence which (did not limit his exertions, but permitted the application of them on many occasions, the recollection of which constituted no inconsiderable portion of the happiness of his life. Feeling as he did, he joined with peculiar fervor with the noble and learned lord, in the sentiment, that judges should not be placed above the law, and be permitted to trample on the right of the subject. The true question in this case was, what was intended by the statute of William, and had Mr. justice Fox, by this misconduct, conduced to the degradation of our free government and constitution? But, whatever might have been his deportment, he was entitled to a fair trial. One of the first principles of British justice in the administration of our penal law is, that the party should be accused, then his case was to be submitted to the grand jury, which was a secret inquest in the first instance, and witnesses were to be examined before them; then, if they saw just cause, he was put upon his trial, and he was judged by 12 impartial persons, who were wholly unacquainted with what had passed upon the inquest; and when he stood at the bar of his country, no man's mouth could be opened but in his presence, no prejudice could be raised which he could not immediately countervail. It was inconsistent with the practice of any court to know any thing of the evidence but in the presence Of the party, and that evidence was subjected to his examination. Their lordships were men

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exalted, enlightened, and learned; but they were still men, and subject to all the infirmities of human nature. All he had known of the mind of man had instructed him how dangerous it was to assume an opinion, unless the party had a cotemporaneous opportunity of taking off the unfavourable impression, and thus the poison was ever accompanied by the antidote. Would their lordship apply these acknowledged principles of our law to the case of the learned judge? Witnesses had been examined at their lordships' bar, their evidence had been registered; no counsel attended, and no cross-examination was admitted. They have said, that this learned judge condescended to bully the jury presented before him. Their lordships had better have fulminated their rage, and have abandoned all the decencies to which they were attached, than proceed to condemn him under such circumstances. How long was this blockade of evidence to remain upon their lordships minds, before the party was to be heard in his defence? What a spectacle had the house` exhibited! how anomalous the proceedings! While they were arraigning the judge;,what were they doing themselves? Had their lordships not been haranguing one another, inflaming one another, and must not all justice perish for ever, if such were their proceedings? Was it the intention of the house to address the king to remove judge Fox? What was that but the commencement of a judicial proceeding? It was impossible they could stir a step except the commons agreed With them. Suppose, when the address was sent down to them for their concurrence, the commons should say, we chuse to proceed by impeachment, in what a situation would their lordships be? Why, that of having actually prejudged a man upon a collateral point. Were they, who had before condemned him, to try the impeachment? Suppose that Mr. Hart, or any other of the petitioners, were dissatisfied with the decision of their lordships, and thought it proper to apply to the commons, was that house to try a man upon whose case they had pronounced an opinion already, whom they had dismissed from the charge? These were some of the least anomalies into which they would be plunged by a continuance of the proceedings. Were their lordships afraid to trust the ordinary tribunals upon this occasion, to let the guilt or innocence of the honourable judge be decided by a jury upon a scire facias to repeal the patent by which he held his office? The commons
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have also received petitions upon the subject, but they could do so without any inconsistency, for it was not they who were to judge. There was also another objection, and in his mind a very great one, to proceeding in that house, and that was that no one could say when the trial was likely to terminate. He had listened with very great pleasure to the admirable speech of the noble marquis, with so much indeed, that if he had not discovered, by looking at his watch, that he had spoken full three hours, he should have conceived, from the excellence of his speech, that he had not occupied more than a quarter of an hour of their. lordships' time. If this opening speech, was to consume so much time, what time would be sufficient for the counsel, the examination and cross-examination of evidence, and all the delays that necessarily, hang upon judicial proceedings? Their lordships had been just delivered from the jaws of one impeachment, were they to run into the jaws of another? If they were, in the name of God, let the proceedings commence where they ought, that is, in the commons; and let not their lordships prejudge a case which they might probably be called upon, in their judicial capacity, to determine.
Lord Hawkesburydid not rise for the purpose of going into the evidence, but meant to confine himself to that part of the question which had relation to the jurisdiction of their lordships. It was necessary to come to a precise knowledge of the principle upon which they were to proceed. One great error appeared to him to pervade the argument of the noble baron who made the motion, and it was, that he seemed to consider their present proceeding as an exercise of the judicial power, when, in fact, they were only exercising that inquisitorial authority with which they were vested by the constitution. No two powers could be more distinct; they might be exercised together without any violation of the equitable principles of our code of judicature. If they were to be restricted from the exertion of the inquisitorial power, because it was possible that the commons might consider the offence which they were enquiring into as fit matter for impeachment, there would be an end at once to any practical employment of it. They could neither address for the removal of a secretary of state, a first lord of the admiralty, or the governor of a colony. Their lordships, he thought, had placed themselves in that situation that they could not

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recede. They had heard evidence; they had passed a bill to continue the proceedings in the present session. He would enter his protest against quashing the proceedings. He thought it became the house to consider the situation in which they had placed themselves, as well as the situation in which they had placed the learned judge also.
The Earl of Moirasaid, he had been prevented, by his occupations elsewhere, from attending the proceedings; but the first impression on his mind was, that there would be no impropriety or inconvenience in entertaining the subject. However, more mature reflection, as well as the arguments which he had heard offered that night, convinced him that his first opinion was erroneous. The house were in the strange situation of hearing a trial, in which there was no ostensible prosecutor; for the persons who acted in that capacity, from very laudable motives he would admit, sat amongst them as judges. He was clearly of opinion, that the proceedings should have originated in the other house. His lordship quoted the case of judge Cleland, who had been guilty of the same offence imputed to Mr. justice Fox; namely, imposing an exorbitant fine on the county of Essex. But how did the county proceed? Why, they resisted the payment, and so brought the conduct of the judge to legal investigation.
The Earl of Buckinghamshirediffered in opinion with the noble lord who had just spoken. He felt, that the inquisitorial power had been properly placed in their hands, and he wished to see it exercised. The commons were, in fact, privy to the proceedings against the learned judge, for they had given their consent to a bill for continuing them.
Lord Aucklandrepeated his former objections to proceeding. From the first time the subject was introduced in the house, he strove, to the utmost of his poor abilities, to point out to their lordships the injustice and inconsistency in which they were about to involve themselves. He thought, from the discussion of that night, that he was likely to see an end of the measure.
The Earl of Hardwickeconsidered the motion as calculated to get rid of the proceeding altogether, and therefore by no means likely to satisfy the feelings of the people of Ireland. There, he was fearful, their lordships determination would be considered as a denial of justice.
Earl Spencersaid, nothing had been ur-
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ged to induce him to alter the opinion which he had so often taken the liberty of offering to their lordships on this subject. He contended, that the effect of the motion would not be to get rid of the proceedings altogether. It was competent for the other house to take it up, and send it up before their lordships, in a regular and constitutional manner.
The Earl of Westmorelandthought it would be a great hardship on the learned judge, if he were deprived of an opportunity of vindicating his conduct, and coming to parliament for remuneration of his expences; in case his innocence of the charges should be made manifest.—The house then divided on lord Grenville's motion, for taking the charges into consideration on that day two months, Contents 25; Noncontents 16; Majority 9.