Lords Sitting of 19 July 1831

MINUTES.
Bills. Read a second time; the Assessed Taxes Composition, and the Militia Ballot Suspension.
Petitions presented. By the Earl of ELDON, from Protestant Magistrates of Galway, to extend the Elective Franchise to Catholics; another Petition of the same character was presented from the Protestants of Newtownsmith. By the Earl of CALEDON, from the Parish of Aghadoo, for the Grant for Education (Ireland) to be continued.

PRIVILEGE—CASE OF MR. LONG WELLESLEY.
The Lord Chancellor The Lord Chancellor rose to call the attention of their Lordships to a subject, which he ought, perhaps, before to have brought under their notice—he alluded to a matter which was of the highest importance, as being connected, not only with the jurisdiction of the Court of Chancery, but with the judicial powers of their Lordships' House, which was the highest Court of Judicature in the kingdom. He thought, himself called upon to make a statement to their Lordships on the subject, although he was not aware that he should have to recommend to their Lordships to take any steps in consequence of that statement. Their Lordships might remember, that in the course of the Session before last, an appeal from an order of the Court of Chancery came before their Lordships, and, after a solemn and deliberate hearing, the order of the Court below had been affirmed by the judgment of their Lordships. The
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order was to this effect—that the children of Mr. Long Wellesley should be taken from under his care and custody, and disposed of according to the direction of the Court of Chancery; and Mr. Wellesley was prohibited, under any pretence whatever, to remove the children from under the care of those to whose charge they were committed by the Court. Mr. Wellesley's daughter was placed under the charge of her aunts, the Misses Long, and from that charge Mr. Wellesley was prohibited by the order from removing her. That order had been affirmed by the unanimous judgment of their Lordships, and therefore had the sanction of, and became the order of the House. But notwithstanding this, Mr. Wellesley, in contempt of the order of the Court of Chancery, and the order of that House, had, a few days ago, proceeded to the house of the Misses Long, and by force and fraud had got possession of the person of the child, and taken her away from the custody of her aunts. Admission had been procured to the house in the absence of Miss Long, under the fraudulent pretence of a message from that lady's solicitor, and this was the fraud employed. The force was, that Mr. Wellesley had taken along with him four persons, armed with constable's batons, which these persons exhibited as their authority to those who attempted to prevent the abstraction, and Mr. Wellesley committed what was in law an assault, by shaking his fist at the

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servants of the Misses Long, and by those combined means of fraud, of assault, and other force, he succeeded in carrying away the infant. On information being given to him, as Lord Chancellor, of what had taken place, he had sent his officer to bring the child and Mr. Wellesley before him. The child could not be found, but Mr. Wellesley had attended, and confessed the fraud, the force, and the assault, in direct contempt of the order of the Court of Chancery, sanctioned and confirmed by that House. And he added, that he had got possession of the person of the child, and that he would not give her up; and he further added, to make the contempt more flagrant, that he had removed the child beyond the jurisdiction of the Court. He had immediately ordered Mr. Wellesley into the custody of the Serjeantat-Arms, and if he had hesitated to do so, he should have been unworthy to hold the office with which he was intrusted, and he should deserve to be impeached for having been guilty of a high misdemeanour. If a pretence of privilege were to be set up as a defence to conduct like this—if all the Members of this and of the other House were to be exempt from punishment when they acted in such a manner—and were to be permitted to set themselves above the law; and if the law makers were thus to set the example of being law breakers, instead of being the guardians and support of the law, then it would be better that all Common and Statute Law should be abolished at once. There was an exemption in favour of Members of Parliament, as to process against their bodies in respect of payment of money, or matters merely civil. But this commitment for contempt was not a process, but a punishment. A punishment for a wrong, done in a wrong manner; and here Mr. Wellesley, although he might, perhaps, have been actuated by an amiable feeling, had not only done wrong, but had done that wrong in a most unworthy manner. He (the Lord Chancellor)had immediately ordered that Mr. Wellesley should be committed to prison—not for his refusal to give up the child, but for what he had before done—for his having, by fraud and force, got possession of the person of the child, in direct contempt of the order and prohibition of the Court. It was to punish him for that which was not punishable in any other way. He might, it was true, be indicted for the
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assault, but for the contempt of the Court he could be punished in no other way than by the Court itself. Members of Parliament did, as he had said before, enjoy exemption from arrest on civil process; but he had yet to learn, from some one who might look only at some pretended law of Parliament, and who might know nothing about the law of Westminster Hall, that privilege was a protection from punishment for contempt of Court—even the highest, in the kingdom. If it were to be held that, the orders of the Court of Chancery might be set at defiance under a pretence of privilege, the consequence would be, that no Member of Parliament could be brought into a Court of Justice as a witness to give evidence, and that a Member of Parliament might walk into a Court of Justice, and interrupt the proceedings of the Court by a long, abusive, and inflammatory speech, and the Court could have no remedy by his removal unless he committed an actual breach of the peace, which he could easily avoid. Such a doctrine he had never heard set up before, and he trusted he never should hear it set up again, for he hoped that the wisdom of the Lords and Commons would promptly and decidedly abjure all pretensions to so odious and pernicious an exemption. He had thought it his duty, under these circumstances, to call their Lordships' attention to this subject at this time, but he did not mean for the present to recommend any ulterior proceeding.

COURT OF EXCHEQUER (SCOTLAND.)
The Lord Chancellorreminded their Lordships, that he had given notice, some days ago, of his intention to lay before their Lordships, on this day, a Bill for the abolition of the Court of Exchequer in Scotland, and for substituting some other mode for the discharge of its duties. He then rose to fulfil that notice, though he would abstain from entering into any particular statement of the provisions of the Bill at present, and content himself with moving, that it be read a first time, and printed. It was probably known to their Lordships, that at the Union between England and Scotland, a provision was made, by treaty, that a Court of Exchequer should be appointed in Scotland, after the model of the Court of Exchequer in England. This Court was accordingly afterwards established by a Statute of the 9th of Anne, by which its powers and

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duties were defined. But the judicial powers of this Court were not in all respects assimilated to those of the English Court of Exchequer, which was competent, by a fiction of law, to take cognizance of all civil causes, in the same manner as the Court of Common Pleas. The Scotch Court of Exchequer concerned itself with no processes, either civil or criminal, except with such civil processes as were connected with the revenue of the Crown. On inquiry it had been found, that this Court had exceedingly little business to do—indeed, next to none. In the course of three months out of the six months of which the Session consisted, it had happened that only one defended cause had come before the Court, and it was manifest that the whole of the business might be easily done by one Baron sitting for only one day in each week during the time that the Session lasted. In consequence of this, it had occurred to his Majesty's Ministers that the country might be relieved from the burthen of this Court in its present shape, in which it consisted of a Chief Baron and four Puisne Barons; and in this he need not say, that he concurred, having himself taken some steps towards an endeavour to get the same object effected while he was a Member of the other House. As the law stood at present, the Chief Baron was entitled to retire on an allowance at the end of fifteen years' service, and the other Barons had the same privilege. The present Chief Baron had served only three years; but one of the other Barons had served eleven years, and another nine years. But in order to induce the Barons to retire, it was proposed that the Act, called the Pension Act, should be modified, and a certain provision made for those retiring before the expiration of their regular time of retiring, or their becoming afflicted with any infirmity. And in case they should not retire, the plan was, that as the Barons died, their places should not be filled up, leaving the duties to be performed by the remainder, until only one should be left, who could easily perform the whole of the duty, as he had before stated. And then, when the last should die off, it was proposed, that the duty should be performed by a Judge of the Court of Session, not being also a Judge of the Court, of Justiciary. There were seven Judges of the Court of Session, who were not Judges of the Justiciary Court, and one of them could well sit in
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the Court of Exchequer on the Mondays during the Session, which were the days on which the Justiciary Court sat, during the sitting of which there was no sitting in the Court of Session. One of the duties of the Court of Exchequer was the expediting Crown Charters, and that was a duty for which a Judge of the Court of Session was peculiarly well fitted. An officer of the Exchequer Court, who held his place for life, was perfectly well qualified to audit the public accounts; and another officer, with a small salary, would answer the purpose of assisting the Judge of the Court of Session in such duties as he would have to perform. The details would be more particularly considered hereafter, In the meantime he moved, that the Bill be read a first time and printed.
Ordered accordingly.

MR. MICHAEL STORKS.
The Lord Chancellorbegged pardon of the House for troubling them again on a subject with respect to which he had no motion to submit; but he was induced to do so, from a desire of doing justice to an individual who had felt himself aggrieved by something which had fallen from him (the Lord Chancellor)and another noble Lord, in the course of a debate which took place in their Lordships' House some evenings ago. As the party could take no legal notice of what took place in Debate, he could have no remedy by petition, or in any other way than by a statement in the House. In what he had said, however, he had rather vindicated Mr. Storks. He knew nothing of Mr. Storks, and spoke without prejudice or bias, either for or against. He had understood, that the insertion of the name of Mr. Storks in the Commission of the Peace had been suspended, in consequence of a prosecution for perjury being pending against him. Of this charge Mr. Storks had been triumphantly acquitted; and then a noble Earl (Harewood) had called him to task in the House, for intending to restore Mr. Storks to the situation, without notice to him as Lord-lieutenant. He had answered the noble Earl, that he had found his name in the list of those recommended by the noble Earl; and that when the objection to him was once removed, he had no idea, that even on the rule on which he had acted, of appointing only those recommended by the Lord-lieutenant, he was at all called upon to consult his Lordship, who had already

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recommended. But then it was said, that Mr. Storks had sent a letter to the Foreman of the Grand Jury, on the subject of the prosecution; and he (the Lord Chancellor) had admitted, that this was wrong, and he still said so; but at the same time, if he had been in Mr. Storks's situation, he certainly should have felt a strong temptation to have acted as Mr. Storks had done, although he hoped he should have been able to resist it. Supposing he had discarded a servant for breach of trust and cheating, and that; servant had threatened to accuse him of some crime—perhaps of the foulest that could be imputed to man—unless he gave him 1,000 l. The servant might go before the Grand Jury who could know nothing of the circumstances, and having made a prima facie case, the bill would be found, as a matter of course; and thus he might lie under the foulest imputation for six months, before he had an opportunity of vindicating himself. There would be a strong temptation, in such a case, to give the Grand Jury some notion of the real merits. This was the case of Mr. Storks, against whom the prosecution was instituted by a discarded servant, in order to force him to pay 1,000 l. by way of compromise relative to a Chancery suit which had taken place about thirty years before. He had said, that the application to the Grand Jury would have been worse, if Mr. Storks had been a professional gentleman. It so happened, that one of Mr. Storks's sons had written to one of the Jury, and had sent him a slip of paper, with questions to be put to the prosecutor; and he (the Lord Chancellor) had said, that this was extremely wrong in the son, who was an attorney. But he now found, that the son who sent the questions was not the attorney, but a coal-merchant. This was what came of speaking of people in their absence. Now, he had looked at the letter sent to him by his noble predecessor, as to the cause of the suspension of Mr. Storks; and he was confirmed in his recollection, that the main cause was alleged to be the pendency of the prosecution for perjury, and not the circumstance of writing to the Grand Jury. He understood, that the noble Earl himself had admitted, that Mr. Storks had, on one occasion, been extremely serviceable in bringing back to peace and good order a very populous district, which had previously been in a state of disturbance.
The Earl of Harewooddisclaimed all hostility to Mr. Storks, with whom he was not personally acquainted; but he had thought it his duty to call the attention of their Lordships to the subject; and he now asked the Lord Chancellor, whether he intended to include Mr. Storks in the Commission, or not?
The Lord Chancelloranswered, as he should have done at first, that that depended on his own good pleasure. He had followed the rule, not to appoint any, except such as were recommended by the Lord-lieutenant; but that was not on account of the Lord-lieutenant, but merely a measure of precaution which the Lord Chancellor prescribed to himself. He might, if he thought proper, appoint, without recommendation by the Lord-lieutenant, although, by so doing, he should take a double responsibility on himself. So a Minister might recommend to his Majesty to appoint a Judge, without consulting the Lord Chancellor, and the Lord Chancellor would have no reason to complain, but then the Minister would be entirely responsible. In the present instance, however, he had found the name of Mr. Storks in the list of those recommended by the noble Earl, who ought, more justly, to have found fault with his predecessor who had suspended him, than with him (the Lord Chancellor), supposing he should restore him. Once more he begged leave to say, that this was a most inconvenient mode of appointing magistrates, to make their appointment the subject of discussions in either House of Parliament, while it was still under the consideration of a highly responsible member of the Executive Government. He could not conceive a more inconvenient mode for the exercise of that delicate and most responsible trust. It was usual for the Minister of the Crown, in appointing a Judge, to consult with the Chancellor, and to take his advice respecting the person to be raised to the Bench. But it was not to be maintained, that the Chancellor had a right to bring the Minister over the coals in their Lordships' House, whenever he should suppose, that the Minister did not intend to make the appointment at his suggestion. The case of the Lord-lieutenant taking the Chancellor to task, on such a supposition, was exactly parallel. There was no shadow of foundation for the assertion, that the restoration of Mr. Storks to the Commission would have taken place but

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for the noble Earl's having called the attention of their Lordships to the subject. It was no such thing. His reappointment had been stopped before it had been alluded to in that House, in consequence of the letter addressed to him (the Lord Chancellor) by the noble Earl himself, and by another private communication.
The Duke of Wellingtonwas of opinion, that the subject ought not to have been brought forward in the absence of his noble and learned friend, Lord Lyndhurst. As it had been stated, that the interference with the Grand Jury had been attempted, not by Mr. Storks the attorney, but his brother, Mr. Storks the coal-merchant, he could assure their Lordships that he had seen a letter from Mr. Justice Bayley, in which that learned Judge said, that Mr. Storks the attorney, did put into the hands of one of the Grand Jury a written list of questions to be asked by that Juror to one of the witnesses, He thought that, under such circumstances, his noble friend (Lord Lyndhurst) was justified in removing Mr. Storks from the Commission.
The Lord Chancellorobserved, that he had carefully abstained from saying a word against what had been done by his noble and learned friend, in consequence of his absence; but though the presence of his noble and learned friend would be desirable, it was rather too much to expect that his absence should prevent a subject of this kind from being noticed. In consequence of the privileged Debates in their Lordships' House, and the unprivileged communication of those Debates to the utmost ends of the earth, was it to be expected that a gentleman and his family, who felt themselves ill-used by what had taken place in the course of those Debates, should abstain from endeavouring to set themselves right with the House and the public, because of the unavoidable absence of one noble and learned Lord? As to the statement of Mr. Justice Bayley, it was quite impossible but the learned Judge must have had it at second hand. He could not possibly know the fact of his own knowledge. Now Mr. Storks had written a letter, stating that it was not his son, the attorney, who had sent the letter up to the Grand Jury, but that it was his son, the coal-merchant; and if there were no foundation for that statement, this Mr. Storks must be the boldest and most audacious, and withal the most foolish person in the world, to put
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forward such a statement. Yet the noble Lords who had cheered the assertion that it was the attorney son, and not the merchant son, who had sent the letter up to the Grand Jury, no doubt, conceived themselves better qualified to determine which brother was the merchant, and which the attorney, than the mother who had borne them, the father who had begotten them, and the relatives who had known them ever since their childhood; and they were, no doubt, ready to divide for the motion, if it should be made, that it was the attorney son, and not the merchant son, who had sent the letter up to the Grand Jury. [The noble and learned Lord here read an extract from a letter which had been written by Mr. Storks, the attorney, in which he stated, that he had had no communication with the Grand Jury, on the occasion alluded to, by letter or otherwise, either directly or indirectly; that he was in London at the time, and that he knew nothing of his father having written to the Grand Jury, until he had returned home. He further stated, that his brother, who had a communication with the Grand Jury, was not an attorney, but a coal merchant, and that the questions which he communicated to one of the Grand Jury, were strictly professional.] He (the Lord Chancellor) gave greater weight to this evidence, than to the hearsay evidence of Mr. Justice Bayley. He had, besides, got a statement under the handwriting of the prosecutor of Mr. Storks, in which he acknowledged that there was no ground for the charge which he had brought against, Mr. Storks, and that he had been bribed to make it. Would it not be hard that an individual, in such a case, should be run down without being heard?
The Earl of Harewoodmust repeat, that he had never heard of any disturbances at Duesbury, since he had been Lord-lieutenant. There was a disturbance at a place not far distant, but he had never interfered at Duesbury. He had never been at the Pomfret Sessions since 1819 or 1820, until last year, and never had any communication with Mr. Storks, respecting any disturbance whatever.
Lord Wynfordcontended, that it was criminal to send a letter to a Grand Jury, to influence them in reference to a case which was to come before them, and stated, that there was the case of a country gentleman, who was not a lawyer, who

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had been sentenced by the King's Bench to six months' imprisonment for doing so.
The Earl of Eldonsaid, that the usual sort of intercourse which was maintained between the Lord Chancellor and Lord-lieutenants of counties, divested the exercise of the duty which devolved upon them, of that degree of responsibility which would otherwise attach to it if exercised solely on the responsibility of one party or the other. The noble and learned Lord on the Woolsack, in justifying his conduct in the present case, had spoken of it as a departure from the general rule; and he therefore hoped, that in future the usual rule as to the intercourse between the Great Seal and the Lord-lieutenants of counties would be adhered to. With regard to filling up commissions which had been omitted, and no reasons assigned for such omission, he was aware, that such things had been done by Lord Chancellors. The noble and learned Lord mentioned an instance which had occurred while he held the Great Seal, where the Bishop of Durham, who was accustomed to send up a new commission every year, had on one occasion sent it up, omitting two names, and without assigning any reason for the omission. On making an inquiry into the matter, he (Lord Eldon) found, that there was no reason for excluding those names from the commission, and he had them accordingly placed there. This subjected him, as the Chancellor of the day, to what all Lord Chancellors must be subjected to; and he must entreat the noble and learned Lord not to take the alarm if he were so handled also—if he were almost pulled to pieces for what he might do, or not do, as Lord Chancellor, The second case which had occurred during his chancellorship was that of a Welsh Magistrate, who had been removed from the commission on a charge of having appropriated to himself certain fines which he had imposed upon persons who had been convicted of offences before him. The persons who made this charge made it upon affidavits, and upon those affidavits those persons were convicted of perjury. He had immediately restored this Magistrate to the commission. The third case, he would not mention names, was one in which the individual removed had saved him (Lord Eldon) the trouble of striking his name out, by resigning. In conclusion he would only observe, that he thought there ought to be a free and
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liberal communication between the Lord-lieutenants and the Lord Chancellor. He had protected himself from that maxim, that the Lord Chancellor was responsible for all such appointments, by calling to his assistance those who must know better than he could know, who was fit and who was not fit to be in the commission. He would abstain altogether from giving any opinion with regard to the case of Mr. Storks. He agreed, that while the indictment for perjury was pending against Mr. Storks, it would have been becoming in that individual to have suspended himself, but he confessed, that if he had been Chancellor, he should not have thought it his duty to strike Mr. Storks's name out of the commission until he had been proved to be guilty of the charge made against, him. Certainly, after the verdict of a jury had declared Mr. Storks to be innocent, a Chancellor would have acted most improperly who did not deal with Mr. Storks on the principle that such a verdict had set him rectus in curiâ. So much for the indictment for perjury: but there were other circumstances in the case, and in the absence of the noble and learned Lord (Lyndhurst) now upon the circuit, he must abstain from giving any opinion upon the case generally. He alluded principally to the charge, that Mr. Storks had tampered with the Grand Jury. If that charge could be made out, he could not concur in the doctrine which he had that night heard—namely, that such an offence was not an indictable offence. He did not know whether this charge could or could not be made out, but if it could, he had no hesitation in saying, that if he had been Chancellor, he should have struck out Mr. Storks's name on his own responsibility.
The Lord Chancellorwas particularly anxious that this discussion should not have the effect which the turn that had been given to it might possibly produce. He was particularly anxious that it might not tend to alarm Lord-lieutenants, or cause it to be supposed that he intended there should be an end to, or an interruption of, that constant and confidential communication which had hitherto subsisted, and which he was most desirous should continue to subsist, between the Lord-lieutenants and the Lord Chancellor. He perfectly concurred in the propriety of those rules which the noble and learned Earl (Eldon) had laid down, and he had never once deviated from those rules, as many

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Lord-lieutenants now present could testify, and as many of them on a former occasion had testified. To the hundreds of applications which had been made to him to put gentlemen into the commission, he had never returned any answer upon the merits of the application, but he had told the applicants, that he had sent their applications to the Lord-lieutenant, and that, if the Lord-lieutenant recommended them, he would put them into the commission The noble and learned Earl (Eldon) seemed to misunderstand the present case. He had not put Mr. Storks into the commission; Mr. Storks was no more in the commission now, than he had been at the moment he was struck out of it; but the question whether Mr. Storks should or should not be put into the commission, was a question now before him for decision, and he should decide it when he had gone through the necessary inquiry and investigation of all the circumstances of the case. As to the charge of tampering with a jury, he had never said that tampering with a jury was an innocent act; but he had said, and he now repeated, that it was an act capable of all shades of wrong, from the highest and deepest guilt down to the venial offence. Whatever their Lordships might, now say, he was satisfied that there was no one among them who would not have suggested to the jury to ask such questions of the prosecutor as had been suggested in this case, if that prosecutor had been a discarded servant of theirs—discarded upon suspicion of stealing money—and, above all, if that prosecutor had offered to abandon the indictment for 1,000 l. Such were the circumstances of this case. If, however, this act were an indictable offence, let, Mr. Storks be indicted for it; there were plenty of persons able and willing to indict him, if they could; but, although he did not say that any thing short of the trial of such an indictment would satisfy him, yet he did say, that he should pause, in order to consider and to investigate the circumstances of the case.
The Marquis of Clevelandhad some knowledge of the circumstances of the case of the Durham Magistrates, to which the noble and learned Earl (Eldon) had alluded. According to his recollection, which he believed was tolerably correct, the names of those Magistrates were omitted, and were not, for some time, re-inserted. He was pretty confident that it was not until strong representations had
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been made to the noble and learned Earl, by some of the most influential persons in the county, that the names of those Magistrates were restored to the Commission.
Earl Greysaid, that he believed it was with himself that the noble and learned Earl (Eldon) had principally communicated on the subject of the omission of the names of these gentlemen in the Commission for Durham. That case occurred some years ago; but he believed his recollection was accurate as to the fact that the names of those gentlemen were actually left, out of the first Commission. He believed, that the noble and learned Earl was not aware of that fact at the time. The ground of the omission of these gentlemen's names was a very peculiar one; it was because they had, in the exercise of their magisterial duties, licensed a public-house which the Bishop of Durham wished to put down. This omission excited a great sensation in the county, and the strongest representations on the subject were made to the noble Earl, by many of the most respectable Magistrates in the commission. The noble and learned Karl, upon that occasion, stated to him (Earl Grey) the rules which he had that night stated to the House. A lengthened correspondence took place upon the subject, very much to the displeasure of the Bishop of Durham, and the result was, that the noble and learned Earl re-instated these gentlemen in the commission. Nothing could have been more fair and more creditable than the conduct of the noble and learned Earl upon that occasion: and that conduct, he believed, gave, with one exception only, great satisfaction to the whole county of Durham. He would not detain their Lordships with any lengthened observations upon the case of Mr. Storks. He must, however, say, that in his opinion the noble Earl (Harewood) opposite had no reasonable ground of complaint of want of respect on the part of his noble and learned friend on the Woolsack. His noble and learned friend, not being aware of all the circumstances of the case, had been considering the propriety of reinstating a gentleman in the commission: and in considering this subject, his noble and learned friend had not applied to the Lord-lieutenant, because the Lord lieutenant had recommended the gentleman originally, and had not withdrawn that recommendation. With this recommendation unrecalled, it surely could not

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have been necessary for his noble and learned friend, in the first instance, to make any communication to the Lord-lieutenant on the subject. He thought, that his noble and learned friend had acted perfectly right; and he had the means of knowing, that his noble and learned friend, so far from neglecting Lord-lieutenants, had always most scrupulously attended to recommendations which had been forwarded to him from such quarters. He could not see what good end could be answered by prolonging this discussion, and he hoped that the matter would be allowed to rest where it was.