§ LORD CHELMSFORD
, in moving for Copies of Correspondence bearing on the dismissal of Sir George Marcoran and Sir Anastasio Xidian from their offices as Ionian Judges, said, he did not intend to go again into the circumstances of this case, but he was anxious to say a word in justification of the course he had taken, which had been misunderstood, if not misrepresented. The transaction, as it appeared to him, was this:—These two gentlemen, of high character and great legal attainments, one of whom had been a member of the Supreme Council of Justice for twenty, and the other for twelve years, had been withdrawn from the bench abruptly, without any previous warning, and without the slightest allegation of misconduct—without, indeed, the slightest reason alleged. The first intimation they received of their withdrawal was the announcement of their successors in the columns of the Gazette. They pursued the constitutional course of appealing to the noble Duke the Secretary of State for the Colonies, and the answer they received was that he saw no reason to disapprove the act which had been done by the Senate and sanctioned by the Lord High Commissioner. They made a second application; and in his answer to that the noble Duke said that he trusted their removal after such long services would not be attended with any feeling that those services had not been appreciated by the Government. It was impossible to assume that they had been removed for any misconduct, and he thought himself perfectly justified, therefore, in bringing the case before their Lordships in order to obtain some information upon it. The noble Duke had admitted that he had brought the case forward fairly and temperately—and he had no reason to pursue any other 413 course, for he could only assume either that there was some hidden cause for their removal with which he was not acquainted, or that the noble Duke had acted under some serious misapprehension. The noble Duke, however, in answering him on that occasion, charged those gentlemen in strong language with having acted the part of political demagogues, or being associated with political demagogues, who misled the people, and also with judicial corruption to such an extent that it became necessary to effect a change in the Court in order to restore public confidence in it. In the papers which had been laid before Parliament on his Motion there was not a single word explaining the causes of the removal of those gentlemen. They did, indeed, contain a justification of the abstract right of removal; and in the case of Sir George Marcoran there was a statement that at his very advanced age—seventy—he might consider himself a very fortunate personage in having held a very lucrative office so long, in a country where there were so many persons seeking employment. What would have been the position of these gentlemen if he had allowed the matter to stand where the first discussion left it? Of course the public, having heard the noble Duke make these charges in his place in Parliament, would have assumed that there was evidence in existence which would substantiate those charges, and would have taken them for granted, just as much as if the evidence had been produced. The noble Duke had attempted to charge him with the responsibility of further inquiry. But all the harm he could possibly do was to elicit, if any existed, those proofs which would otherwise have been taken for granted. Exercising, therefore, what he thought proper discretion, he had invited a further discussion of the matter in order to elicit proofs, if any proofs existed. On that occasion, the noble Duke, forgetting his usual courtesy, charged him with "quibbling" in a manner "only suited to a Nisi Prius advocate;" a charge, by the way, which, addressed to a lawyer by his adversary, did not by any means possess the charm of novelty. He could sincerely say that he was entirely unconscious of having laid himself open to any such charge. He trusted that the dignity which always pervaded their Lordships' House had not produced such a torpor that any one of their Lordships who felt that an injustice had been committed should not be permitted to 414 resent it, and to express himself warmly upon it. The charge of political dema-gogism those Judges distinctly denied, and in support of their denial referred to the knowledge of others in respect of their conduct. Then, with regard to the charge of judicial corruption, there was quite sufficient testimony given to their judicial conduct both by their former associates and the present Judges. Mr. Blair, Sir James Reid, and Mr. Lushington, who had taken notes of the Supreme Council of Justice, all bore testimony to the high character of those two Judges; and Mr. Lushington said he should always esteem it an honour to have sat on the bench with Sir George Marcoran and Sir Anastasio Xidian. Sir Patrick Colquhoun, the present Chief Justice, was a witness in their favour on the same point. He presumed that the Report of his right hon. Friend (Mr. Gladstone) could be depended on; and in 1859 Mr. Gladstone stated that both the British and the Ionian Judges were regarded with favour and confidence by the whole population of the Islands. However, his noble Friend bad stated that Mr. Gladstone must have been misinformed, or that something must have been withheld from him; but it was impossible, if what was now alleged was true, that charges against those Judges should not have reached the ears of his right hon. Friend in 1859. Again, it was impossible that the Court could have been corrupt merely through the conduct of the Ionian Judges, and without the taint extending to the English Judges also. As for the allegation, that owing to their ignorance of the language of the Ionians and not being familiar with local affairs, the English Judges were, to a certain extent, under the control of the Ionian Judges, the fact was that Sir Patrick Colquhoun and Sir Charles Sargent were both perfectly well acquainted with modern Greek. The Chief Justice had been long resident in Athens; he was perfectly acquainted with modern Greek, and he was a man of great learning, and had published an admirable work upon the Roman civil law. The other English Judge, Sir Charles Sargent, also spoke Greek with the greatest fluency. Another circumstance was that the proceedings were to a great extent not viva voce. On a former occasion, when this case was under discussion in their Lordships' House, the noble Duke, putting his hand upon a box, stated that he had there proofs of the charges against those learned gentlemen, but that it was 415 in vain to ask him to produce them, as he would produce nothing more than he had produced. Now, he contended, that the moment that assertion passed from the lips of the noble Duke those two Judges were entitled to insist on the production of the proof to which his noble Friend alluded. Before that statement it might have been supposed that the Judges were the victims of vague rumours, which could only be met by a general denial; but then the statement of the noble Duke showed that those were specific charges; and therefore they had the right to complain that those charges had not been communicated to them, so that they might have an opportunity of defending themselves. They were entitled to be confronted with the witnesses who had accused them, and they were entitled, like the humblest person in this kingdom, to have the charges substantiated by proper proof; and if they were not substantiated, they were entitled to claim an acquittal. He begged to move—That an humble Address be presented to Her Majesty for, Copies of any Papers in the Possession of the Secretary of State for the Colonies containing any Charges of Conduct inconsistent with their judicial Office against Sir George Marcoran and Sir Anastasio Xidian, late Judges of the Supreme Council of Justice in the Ionian Islands.
§ THE DUKE OF NEWCASTLE
said, their Lordships had now arrived at the third stage of the discussion on the non-re-appointment of the Ionian Judges; and, whether they were to have a fourth or even a fifth, or this was to be the last, he thought it incumbent on him, in the course of the few observations which he felt it his duty to make in answer to the noble and learned Lord, to call the attention of the House, and of Parliament, to the course which he had taken in reference to this matter. The first step in the proceeding had been most accurately described by the noble and learned Lord. An appeal was made to him by those Judges—an appeal given to them by the Articles of the Constitution of 1817. It was his duty on receiving that appeal to enter, as fully and as carefully as he could, into a consideration of the case, in order to ascertain, in the first place, whether, as had been distinctly and unequivocally declared by Sir Anastasio Xidian, the course which had been taken in the Ionian Islands with reference to those Judges was illegal; and, in the next place, whether, if it was legal, it was a correct course, and one which 416 ought to have been adopted. Before deciding the first question, he availed himself of legal opinion; and having done so, and having considered the subject, he came to the distinct conclusion that the course was legal. Having disposed of that point, he considered the second one, and he came to the conclusion that it was just and expedient the re-appointment of these Judges should not take place. At that time a private friend and advocate of those Judges in this country repudiated any intention on their part of appealing to Parliament, and even went the length of saying that such a course would be a most improper one. He did not say that they were not entitled to appeal to Parliament, though, technically, they had not done so, for there had been no Petition from either of them. An appeal was, however, made on their behalf in both Houses; and in the first speech made by the noble and learned Lord, he threw over the idea that there was any illegality in what had been done, though he contended that the law upon the subject had been practically repealed. The fact, however, was clear, that it had not been repealed. A most dangerous precedent was now being set, and one which would not be likely to encourage those who were endeavouring faithfully to serve their country abroad, in administering the affairs of our Colonies. It was impossible that this country could be efficiently served if this course of proceeding were allowed. Was no man to be trusted? Was a man like Sir Henry Storks to be misrepresented, as he had been by the noble and learned Lord, merely upon the statements of private friends of those who thought themselves aggrieved? If this course was to be pursued, it was impossible that we could be faithfully served. Besides this, was such a man as Sir Henry Storks to be allowed no confidential communications with his superiors in order to explain what his motives and reasons were—reasons, perhaps, affecting the private character of other persons? Was he to be forced either to have the whole of those statements published, or else be exposed to the imputation of having acted in a manner derogatory to his position? For his part, he would never desert an officer under such circumstances, or allow a valued public servant to be treated with injustice, even at the risk of being placed in the position which he occupied to-night. For this he took no credit, because he should feel himself disgraced if he took any other 417 course. Sir Henry Storks was a man who deserved the confidence of Parliament ant of the country. During the Crimean war, when our hospitals in the East were in a deplorable condition, he was selected to go out to the East to improve their condition; and he (the Duke of Newcastle) conic testify as an eye-witness that the Smyrna hospital, owing to the exertions of Sir Henry Storks, was in a state most honourable to himself and most beneficial to the unfortunate inmates. Then affairs came to a dead-lock in the Ionian Islands; the party opposite sent out first Mr. Gladstone to inquire, and afterwards sent Sir Henry Storks, to be Lord High Commissioner. Sir Henry Storks then held a permanent office in this country, and it was not to his interest to go; but being requested, he went in the interest of the public service, Was this a man against whom charges were to be brought upon mere private representations, and who was to receive no confidence from Parliament? That their Lordships should show a want of confidence in him (the Duke of Newcastle) he did not complain—that was perhaps a legitimate party proceeding—though he did not know that he had done anything to warrant the suspicion that he would refuse to direct the re-appointment of these Judges out of mere caprice or upon light grounds. There had been a misconception or a misrepresentation of what fell from him in his first speech on this subject. In justice to Sir Henry Storks, he had then been compelled, owing to what was alleged on the other side, to refer to the conduct of these Judges. The noble and learned Lord had said he was entitled to ask for an explicit avowal that there had been no misconduct on their part; and, with such an appeal as this, how could he (the Duke of Newcastle) forbear, in justice to Sir Henry Storks, to touch as lightly as he could upon the reasons which had influenced the conduct of that officer? The noble and learned Lord declared, that in his speech last April, he had distinctly charged the Judges with corruption, Now, he defied the noble and learned Lord to point out in his speech any such charge. He certainly had said that the administration of justice was complained of, and it was felt that a change was necessary.
§ LORD CHELMSFORD
said, the noble Duke had gone on to say that corruption was engrained in the very character of the people.
§ THE DUKE OF NEWCASTLE
said, he 418 did not deny the use of this expression; but said that it evidently had no application to the Judges whatever, nor did it follow directly the sentence he had just read. Surely it was not candid or fair to accuse him by such a quotation as this of having made charges of corruption against the Judges. The noble and learned Lord said he had been so severe upon the Judges on that occasion that they could not consent to lie under the stigma. But Sir Anastasio Xidian, in his pamphlet, so far from feeling that there was any stigma upon him, exulted in the fact that the Secretary of State had charged him with nothing discreditable. This, perhaps, was going rather too far, because he had made charges of a certain character. But the noble and learned Lord had apparently come to the conclusion that it was absolutely necessary that the matter should be further prosecuted upon an entire misconception of his speech. He was glad to see so many noble Lords presents—asked, no doubt, to come down and record their votes on this occasion. So little interest did this question excite upon the last occasion, that he had addressed his speech at one time to four noble Lords on the opposite benches, and to about five on the Ministerial benches. What was the course adopted then? It was an extraordinary one. There was a speech and nothing more. The noble and learned Lord neither asked a question nor made a Motion. That was a suspicious proceeding. We have heard a good deal about strategic movements on the other side of the Atlantic This was a strategic movement, in the sense that it was a reconnoissance in force to find out the enemy's strength, to try his position, where his forces were posted, and where his weak points were, so that at some future time an attack might be made with success. Now, the attack was made, and he was told, in answer to a remark of the noble and learned Lord that more papers were wanted, he (the Duke of Newcastle) had said that he had in the box before him plenty of papers to prove the misconduct of the Judges, but that he could not produce them. He begged to say that was not a fair account of his words, because the noble and learned Lord might have referred to the report of what he did say. He begged to tell the noble and learned Lord that he did not say anything of the kind.
§ THE DUKE OF NEWCASTLE
said, he did not think the noble Marquess took short-hand notes as well as some others who were present, although not members of that House, and therefore he could quote what he really had said, which was—The noble and learned Lord probably meant to base upon his present statement a demand for further papers; but though the boxes before him were full of papers"—[he really said half full, but that was unimportant]—"he should certainly, in justice to the public service, decline to produce any others than those which had been laid upon the table.Those were his words, and he never had said anything about the box containing proofs of the misconduct of the Judges. That was no quibble, nor had he fallen into any difficulty, as the noble and learned Lord seemed to imagine. He hoped that no one would believe him capable of denying anything contrary to truth, and he would certainly have said that which was not true had he said that the box before him contained proofs of the misconduct of the Judges. But there were in that box papers connected with the subject which he had laboriously collected with a view to make himself master of the subject, but which he did not think it would be right to produce. The argument based upon that supposition therefore fell to the ground. The noble and learned Lord proceeded to say that in justice to the Judges the papers should be produced. His objection was that those papers contained the names of persons, who, though no parties to the accusations against the Judges, nor connected in any way with the Government, yet were the names of gentlemen who had no wish whatever to be mixed up in the matter; and he did not think it would be fair to produce to the public those names without first asking for the sanction of the individuals themselves. He thought it would be a dangerous precedent if papers of this kind were to be granted without the sanction of those whose names were mentioned in them. Was it fair in a case like that of the Ionian Islands to produce the names of those who were living upon terms of social intercourse with others who were mentioned, and to show them up as dishonest men without any object for the public service? He had proposed, when the notice was given, to say "Not Content" to the 420 production of the papers, unless the names he had referred to were omitted. He was told, however, that that offer would not be accepted. Of course, if the House accepted the responsibility, the papers would be produced; but he could not but think that such a course would tend to create unpleasant feelings and a want of confidence in future in the minds of those who might be called upon to give evidence of facts for the public service. All that he had said had been forced and extorted from him upon each occasion, and he had said nothing beyond what he felt to be absolutely necessary to place the question upon a right footing, and to defend those who were serving the country faithfully and well. He should say "Not Content" to the Motion, but he should not divide the House, for the reasons he had stated. He would not say one word about the contents of those papers, although he believed, according to Parliamentary usage, he would be entitled to refer to them, as they were to be produced; but he should leave the responsibility for their production upon Parliament. He would, however, say that "save me from my friends" would be claimed with reason by some of those whose names were mentioned in the papers. He could not see the use of producing them, for the noble and learned Lord had confessed that there was no remedy even if an injury had been done, except, perhaps, a pecuniary compensation. Thus, the question appeared to be less one of loss of character than of loss of income. If Parliament chose to demand the papers, they would be given; but, at the same time, he felt that great injustice would be done to those whose names were mentioned in them for no fault of their own, and considering the manner in, which Sir Henry Storks had been attack-both inferentially and directly, the production of the papers would be a heavy blow to public servants, which might hereafter impede them in the performance of their duty.
§ THE EARL OF DERBY
My Lords, I had not thought that it would have been necessary for me to have said a single word on this occasion, as I was informed that the noble Duke, although not agreeing with the Motion, did not intend to press his opposition to a division. But I must say that the speech of the noble Duke renders it imperative upon me to trespass upon your Lordships' attention 421 for a few moments, for I must confess that to me it seems that the course he has announced his intention of taking is at variance with the tenour of his speech and to the arguments which he brought forward. In the first place, as to Sir Henry Storks, I have not heard one word said in the House against him. [Earl RUSSELL: Hear!] I must observe to the noble Earl the Secretary for Foreign Affairs that it is not usual in this House to introduce a laugh as a reply; if the noble Earl has any arguments to use, let him do so presently, but I must request that in this House he will treat me with the ordinary courtesy. I say I have not heard in this House any imputation upon the character or reputation of Sir Henry Storks. I took an early opportunity upon the last occasion of stating the obligations under which the Government of which I was a Member felt themselves to Sir Henry Storks for the manner in which he at once undertook the duties of a responsible and difficult post, which duties, upon the whole, I think he has well performed. But I do believe, that upon the present occasion, not only Sir Henry Storks but the noble Duke also, have been made the dupes of a party which has ulterior objects—very different objects and very different interests from those of the English Government, the Lord High Commissioner, and of the Secretary of State. I do believe that Sir Henry Storks has been misled upon this occasion, and that he has assisted in misleading the noble Duke. The noble Duke at the commencement of his speech referred again to the question of strict legality; but he accompanied that recurrence to the question by a reference to a statement of my noble and learned Friend—that, if not strictly illegal, the course pursued was unusual, if not absolutely unprecedented, and had been carried out in a harsh, abrupt, and, as he thought, improper manner. The noble Duke is known to be a man of the highest and most sensitive honour—let me ask him to take this case. I will ask him to suppose, if it be possible, that filling the high office of Secretary of State for the Colonial Department, he had been honoured with an audience with his Sovereign; that at that audience he had explained the various measures in progress and in contemplation; that he had apparently received the sanction of Her Majesty to the course he was pursuing, and left the presence without suspecting that he had given any cause 422 of offence. I wish to know what the noble Duke would feel if the next morning he took up the London, Gazette, and found it there announced that Her Majesty had been pleased to dispense with the services of the noble Duke at the head of the Colonial Office, and had appointed some other gentleman therein named to be his successor. Would he be entirely satisfied by being told that the act was within the prerogative of the Crown to dismiss its Ministers at pleasure, and that it kept strictly within the letter of the constitutional law, and therefore he had no right to complain? But, supposing that he requested a further audience, and expressed his astonishment at the unusual course that bad been pursued, and requested to be informed in what manner he had been so unfortunate as to lose Her Majesty's confidence and favour; and that upon being referred to the head of the Government he was told that he had nothing to complain of, that the course pursued was strictly legal, that there had been no violation of the Constitution, that he had been already long enough in the public service holding an office of trust and emolument, and that it was quite time some one else should take it, and therefore the Sovereign deemed that for the public service he should be removed. What would the noble Duke think? Would it have been made more palatable to the noble Duke if the head of the Government had said, "I regret to say that there is a very strong impression—I do not say whether it is true or not—but there is a strong impression that you have perverted your high office for the promotion of your own interests; that you have betrayed your trust; that you have been guilty, if not of corruption, at least of official misconduct. This box has papers in it, I won't say whether half full or wholly full; but of papers, of course papers bearing upon these charges." "I have had charges made," says the noble Duke, "and this box is full of papers," But if the papers did not bear on the charges, to what was the reference? To continue my supposition—"I have got papers in this box, bearing upon those charges; but if you ask me what those charges are, or who makes them, I refuse to tell you either one or the other, and Parliament shall not compel me to produce the papers." I ask whether the noble Duke would not feel that he was in the position of a man whose personal and political reputation had been grossly injured, and whether he 423 would not adopt every means in his power to compel the production of the charges which had been made against him, and the names of the persons who had preferred them? What says the Roman satirist when speaking of convictions on suspicion?—Quibus indiciis? Quo teste probavit?And he then puts a still more important question—Quisnam delator?It is the quisnam delator we want to have from the noble Duke, which he will give and must give, and to the production of which he even now gives a reluctant assent. The noble Duke entirely misunderstands the language of my noble and learned Friend. My noble and learned Friend has never asked to have the names of other persons who are implicated in the charges. All that he has asked for, and what we understood the noble Duke to refuse, are the names of the accusers. The noble Duke said at first, "I suppose you will be satisfied with extracts;" from which of course he may exclude everything that bears upon other persons.
§ THE DUKE OF NEWCASTLE
I can assure the noble Earl, that when I made the communication to the noble and learned Lord opposite, I was perfectly ready to give the name of the delator, as he says, in each case. There was not the smallest objection to that. The names which I hesitate to give are those which the noble Earl now says that he does not want. I could not exclude those names by giving extracts; it would be necessary to employ blanks.
§ THE EARL OF DERBY
I am perfectly satisfied. We never for a moment supposed that the noble Duke was only refusing to give the names of other persons implicated. The whole gist of our argument was that the Judges had a right to know not only what were the charges which were brought, but who were the parties who brought them. Those and those only were the names which the noble Duke was pressed to give, and those, as we understood, he refused. I rejoice extremely that this explanation has been given, because it bears on the policy and propriety of producing these papers. The noble Duke does not, indeed, repeat the charges, but he seems to imply that no such questions as this ought to be raised; because he says that if Parliament interferes in this matter between the Lord High Commissioner and the Government, you cannot expect to be properly served. 424 The noble Duke acts the part of an honourable man in maintaining and defending his subordinates to the utmost; but when he says that Parliament is not to inquire into any case, because it is possible that it may arrive at a decision adverse to that of the Government, he puts higher than I ever heard it put the doctrine of Ministerial irresponsibility. I understand from the noble Duke, that however reluctant he may be, he will not object to the production of these papers. But, if that is so, I do not understand on what ground he has been so liberal in imputing political and party motives to those who, for the sake of justice, have pressed for these papers; or why we should be charged with bringing this matter forward with strategical objects, and having asked those with whom we usually act to assist us in what we think we are called upon by justice to do. I suppose that the asking assistance from friends is one not absolutely and not wholly unknown to the noble Duke. If I am not very much misinformed, it was not until half past eleven o'clock last night that we were told that the noble Duke had thought better of the matter, and that the attendance of his friends would not be required. Probably, in the interval between the last discussion and yesterday evening, the noble Duke had ascertained, that though he might call, the call would not be readily obeyed. He may even have had some vague suspicion that his Colleagues did not all of them feel so strongly as he did the impolicy and the injustice of producing these papers. I must say that the noble Duke concluded with a most extraordinary position. He concluded by saying that he is satisfied that this course is unjust, impolitic, and likely to be attended with great future disadvantage; but nevertheless, as Parliament insists upon it, he will not divide the House against it. I never before heard such a declaration made by a Minister. Does he believe that the production of these papers would cause serious public inconvenience? If he does, why is it that he consents to do that which he declares to be both unjust and impolitic? Does he mean to say that at this period of the Session it is absolutely impossible for the Government, by calling together those who have confidence in them generally, to maintain any policy which they may think fit; or does he mean to represent the present Government in such a state of weakness that, at this period of the Session more 425 especially, they cannot give or withhold any papers they please, more especially when they declare that the production will be injurious to the public service? The noble Duke is in this position. If he believes that the production of these papers will be seriously injurious to the public service, either he is neglecting his duty in not resisting it, or he is making such a confession of Ministerial weakness, and I would say of Government division, as was never before made in the face of Parliament either in this House or the other. The noble Duke and the noble and learned Lord on the Woolsack said the other evening that it was very inconvenient that this House should be made a court of appeal from the colonial Courts. I entirely agree with them; but I beg to observe that this is not an appeal from a colonial Court. It is an appeal against the Colonial Office. It is an appeal against colonial officials. It is an appeal on behalf of persons whom we believe to have been most unjustly treated. It is an appeal, if you please, against the course taken by Sir Henry Storks. It is an appeal, if you please, against the conduct of the Secretary of State in confirming and approving the measures adopted by the Lord High Commissioner. It is not an appeal against any judicial proceeding. It is an appeal for the vindication of the independence of justice. And I, for my part, hope that the time will never come when this House will cease to be a court of appeal for any who may believe themselves to be the victims of oppression, of petty tyranny, or of political intrigue. I hope this House will ever continue a court of appeal and a place of refuge for all persons unjustly oppressed in every portion of Her Majesty's dominions, and in every territory which has the happiness to be under Her Majesty's rule.
§ EARL RUSSELL
My Lords, I rise to say a few words in consequence of the allusion which the noble Earl (the Earl of Derby) made to me. It certainly did strike me as very extraordinary that the noble Earl should say that this was not an attack or an imputation upon Sir Henry Storks. The whole case is that the act of injustice has been committed. There can be no act of injustice without some person to perform it, I suppose, and who is the person to perform it but the Lord High Commissioner, Sir Henry Storks? The noble Earl went on to say that Sir Henry Storks had been the dupe of parties who for some intrigue 426 or other wished for the removal of these Judges. Surely it is an imputation upon a man in Sir Henry Storks's position to say that he has allowed himself to be made the dupe of persons who are intriguing for private purposes! And at the end of his speech the noble Earl said that this was an act not only of injustice, but of petty tyranny, Now, I must ask who is the petty tyrant but Sir Henry Storks? If there has an act of petty tyranny, Sir Henry Storks must be the person who committed it. Considering the position of the Ionian Islands and of the Lord High Commissioner, I think it would be better for Parliament to say that this was an act of Sir Henry Storks, who was worthy of the confidence of the Government which appointed him and the Government which retained him, and that therefore they would suppose that he had reasons which satisfied his mind that it was an act of public wisdom. I say this the more because no one says that Sir Henry Storks wished for the sake of the patronage to appoint two other persons as. Judges; no one says that he had any malice against these two gentlemen. There is no apparent cause why we should distrust Sir Henry Storks, and why we should not leave the matter to his discretion and judgment. That he is a man to be trusted every Member of the House, certainly all the Members of the late Government, must admit. The question at issue being not one of the legality or illegality of the course pursued by Sir Henry Storks, but one of the exercise of a proper discretion, it would, I think, have been wise to have given the Lord High Commissioner credit for the proper performance of his duty. With respect to the want of courtesy which the noble Earl attributed to me, I can only say that I did not intend any discourtesy; but I certainly was at the moment struck by the observation that noble Lords opposite did not think that the position, or character of Sir Henry Storks were at all considered in the course which they have taken. So far as the observance of the courtesies of debate are concerned, I must say I think I listen to the noble Earl's speeches with quite as much courtesy as he does to mine. He, if I mistake not, sometimes make what appear to be very jocular remarks to his friends near him, which are not generally very pleasant to the person who happens to be addressing the House.
§ EARL GREY
My Lords, I cannot think the noble Earl who spoke last but one (the Earl of Derby) is justly liable to the charge of inconsistency in the remarks which he made with respect to Sir Henry Storks. What I understood the noble Earl to say was, that he shared the high opinion held by your Lordships generally of Sir Henry Storks's character; but I am not aware that he was therefore bound to approve his conduct in the matter under discussion; it is not to uphold that every act of a man's administration is to be justified, because his general character is unimpeachable. I quite admit, I may add, that if this were merely a question of the judgment with which Sir Henry Storks had exercised his authority as Lord High Commissioner, I should have thought it unwise to raise a discussion upon the matter in this House. The case, however, is one, not of the non-appointment of two Judges, but virtually of their removal; the almost uniform stream of precedents being, that if a Judge did not misconduct himself, he was re-appointed at the close of the prescribed term. In our own history, up to the reign of George III., English Judges held their offices only during the life of the monarch; but unless some good reason to the contrary Was assigned on the demise of the Crown, the practice, I believe, invariably was that they should receive a fresh commission from the hands of the succeeding Sovereign; and if any name were not re-inserted, that Judge was looked upon as being virtually dismissed. This I regard as a case entirely in point in the present instance—I consider that these Judges have been virtually dismissed by the Lord High Commissioner, and the question is whether Sir Henry Storks was right or wrong under the circumstances in the course which he took with the subsequent sanction of Her Majesty's Government. For my part, I do not dispute the legality of that course; but it should be borne in mind that in the great majority of the British Colonies, up to a recent period, the Judges all held their offices during the pleasure of the Crown, and that the Crown had full power and authority, at any moment, to dismiss them if it was deemed expedient. But it was at the same time maintained, and I think justly, that it would be an extremely objectionable exercise on the part of the Crown of its authority if it were to dismiss those Judges without any grave offence having been established against 428 them. I myself had while I was at the Colonial Office the painful duty cast upon me of considering the misconduct of Judges; and although I knew that it was in my power to advise their dismissal, I yet thought it was desirable, before that dismissal took place, that a formal inquiry should be instituted, by the result of which they should stand or fall. Here it appears to me the real error has been committed in the case of the Ionian Judges. Sir Henry Storks is a military man, and, not being so well used to civil affairs, did not draw a sufficient distinction between judicial and political offices. That the dismissal of a Judge should have taken place on political grounds I think a grave mistake; but it now turns out that these gentlemen have been dismissed virtually for misconduct. That being so, I maintain they have a right to know by whom the charges of misconduct are made against them. What is the evidence in support of those charges? The neglect in their case has been that up to this moment they do not know who are their accusers. This neglect may be remedied in a certain degree by the production of the papers which are now called for; but no man, I contend, ought to be encouraged in whispering a charge which he will not openly come forward and maintain. I recollect that more than once it happened to me while I held the seal of the Colonial Department that grave complaints were brought to me against public servants in the Colonies. When this occurred, the first question I asked of those who brought such charges before me was, "Will you give me your complaint in writing, and signed with your name, so that the persons you accuse may have the opportunity of defending themselves?" If this was declined, I invariably refused to listen to a word, believing it to be wrong to allow any public servant's character to be whispered away by means of accusations which he has not been afforded an opportunity of answering. It is peculiarly necessary to adhere to this rule with respect to Judges. In the case under discussion the Judges were blamable, or not. If they were open to censure, their offence should have been clearly laid before them, so that they might have been enabled to reply to the charges brought against them. If they were not deserving of blame, you had no right to deprive them of their offices for the purpose of sustaining a particular line of policy. The matter is of importance, because of the absolute 429 necessity which exists for maintaining throughout the British dominions and in countries under the protection of the British Crown that judicial impartiality and independence which I think the course you have pursued in this instance tends to impair.
§ EARL GRANVILLE
My Lords, it seems to me quite evident, notwithstanding the high opinion which every noble Lord who has spoken says he entertains of the character of Sir Henry Storks, yet that he is the person against whom the charges made in this instance are mainly directed The noble Earl opposite (the Earl of Derby) at the close of his speech gave eloquent and impassioned expression to the hope that this House should never cease to be a place where an appeal against an act of injustice might be heard; and there is no one I venture to say on either side of the House who does not re-echo that sentiment. But what I think of importance is, that in dealing with distant dependencies, and with a matter which turns principally upon the exercise of discretion in a public servant in whom you place confidence, great moderation ought to be observed in the manner in which charges are brought under your Lordships' consideration. The noble Earl who has just spoken (Earl Grey) says that when he was at the Colonial Office he required persons who came to him with accusations against those connected with his Department to write them down and subscribe them with their names; and that, I believe, is exactly the course adopted by my noble Friend (the Duke of Newcastle). The noble Lord says that Sir Henry Storks has been the dupe of the Senate. If the Senate is to be treated as an entity—if it be thought desirable that some encouragement should be given to that amount of local self-government which exists in those Islands—your Lordships ought to be very careful before you veto what the Senate has done. But if the Senate is to be treated as a perfect nonentity—if you are to ignore it and its acts as completely as the noble Lord seems to desire—I think you will impose a very heavy responsibility upon the Secretary of State. The noble Lord says this amounts to a dismissal. It has been asserted over and over again that it is a non-reappointment; and I cannot conceive upon what grounds the noble Lord censured the person who introduced a Bill for the purpose of repealing this particular provision in the constitution of the Ionian Islands, if it was 430 not that he thought it convenient that the Government should possess the power of withholding the re-appointment in cases where, without condemning the Judges and without making positive charges against them, it was to the public advantage their offices should be filled by other and better men. I should like to know what amount of blame would not have attached to my noble Friend the Secretary of State, if, after this decision of the Senate, sanctioned by the Lord High Commissioner—who, as all admit, is a singularly able and honourable man—and supported by the papers to which reference has been made, my noble Friend had taken the responsibility upon himself of having re-appointed these Judges in the face of a mass of concurrent evidence from persons on the spot and other evidence contained in the papers. Under those circumstances, instead of being rather baited, as he has been, I think my noble Friend would have been subject to the gravest censure of your Lordships' House.
§ THE DUKE OF NEWCASTLE
said, that after what had fallen from the noble Earl (the Earl of Derby) be presumed that the noble and learned Lord would be satisfied with extracts from the despatches.
§ The Motion, as amended, was then put and Resolved in the Affirmative.
That an humble Address be presented to Her Majesty for, Copies or Extracts of any Papers is the Possession of the Secretary of State for the Colonies containing any Charges of Conduct inconsistent with their judicial Office against Sir George Marcoran and Sir Anastasio Xidian, late Judges of the Supreme Council of Justice in the Ionian Islands.
§ House adjourned at a quarter past Seven o'clock, till To-morrow, half past Ten o'clock.