HL Deb 19 July 1867 vol 188 cc1717-22

asked the Secretary of State for the Colonies, whether his attention had been called to the remarks made by a Stipendiary Magistrate in Jamaica, Mr. Purcell, on the Charge of Chief Justice Cockburn in the case of General Nelson? No doubt their Lordships were all well acquainted with the elaborate Charge made by the Lord Chief Justice to the Grand Jury at the Old Bailey. It appeared that this Mr. Purcell had spoken disrespectfully of the Charge, and when his attention was called to the impropriety, said he did not care for the opinion of Sir Alexander Cockburn. He (Earl Russell) did not think that such observations ought to be made by a stipendiary magistrate, and he would therefore ask whether the attention of the noble Duke had been called to it?


said, he would remind their Lordships that the Grand Jury did not think much of the Charge for they threw out the Bill.


said, that a more unjust, unfair, and partial Charge never was delivered by any Judge from the Bench.


In reply to the Question put by the noble Earl (Earl Russell), I have to state that my attention has been called to the language used by Mr. Purcell. Some colonial newspapers have been forwarded to me which contained it; and I have received a despatch from the Governor, who felt it to be his duty to call my attention to the statement which had been made, and to communicate with Mr. Purcell on the subject. Perhaps I ought to explain the position Mr. Purcell holds. Towards the close of last year an arrangement was made for the constitution of some Courts in Jamaica, similar to the County Courts in England, to take cognizance of certain cases which had formerly been under the jurisdiction of stipendiary magistrates, who had been reduced in number through vacancies not having been filled up. It was proposed that the new Courts should have jurisdiction in cases of debt not exceeding a limited amount, and should also deal with small cases of trespass. It was desired that the Judges for these Courts should be obtained from England. To avoid the difficulty and delay that would wise from a number of cases remaining undisposed of through the reduction of the number of stipendiary magistrates it was thought desirable by Sir John Grant that the gentlemen selected to fill the office of Judges should be sent out as early as possible, in order that, pending the enactment of the law established by the Courts, they might act as stipendiary magistrates, and so prevent the accumula- tion of legal business and the practical denial of justice. Six gentlemen conversant with the law were selected by my predecessor, and one of these was the gentleman who made the remarks in question. He appears to have been a man of considerable ability and legal knowledge, and the Governor, in his despatch, bore testimony to the fact; but I regret to find that Mr. Purcell's explanation does not convey a denial of the language imputed to him; and that his own explanation, to my mind, certainly decides that, however able he may be, he is wanting in those qualifications of discretion and decorum of manner on the Bench necessary to constitute an efficient Judge. I felt it to be my duty at once to inform Sir John Grant that Mr. Purcell's appointment to the office of Judge was not to be completed and confirmed. With regard to his appointment as a stipendiary magistrate, that rests with the Governor; but I have little doubt that Sir John Grant will not think it consistent with the due administration of justice in Jamaica that Mr. Purcell should continue to be employed in any judicial capacity. It is not easy or possible to obtain for the salaries the colonies can offer, barristers of eminence, and therefore opportunity has not always been afforded, by any actual practice in open court, to test the temper and discretion of those who may be selected. It is right, however, that it should be known that of the six gentlemen sent out the remaining five have given the greatest satisfaction. I have in my hand a private letter with reference to one of these Judges, which states that nothing can exceed the satisfaction which his judgments and his deportment have given in the island; and I understand that letters containing similar expressions of satisfaction have been received with respect to two or three other Judges.


My Lords, I happen to be aware of the circumstances under which these appointments were made. In the course of last year, when I had the honour of holding the office of Attorney General, and when the noble Lord near me (the Earl of Carnarvon) was at the head of the Colonial Office, he informed me that he desired to send some members of the bar to Jamaica to act as stipendiary magistrates, and ultimately to be appointed Judges; and he asked me to submit him the names of any gentlemen of the Bar whom I thought might be competent to fill the office. Your Lordships can readily imagine that there is a difficulty in finding in this country gentlemen who have made for themselves a position at the Bar and who have prospects of success here, and who yet are willing to accept an appointment with the moderate salary which a colony can afford to give. That difficulty lay very much in the way of many names that I should otherwise have been able to submit to my noble Friend. I have no personal acquaintance with Mr. Purcell; but he had on former occasions been pointed out to me as a gentleman who had attained a high University reputation, and who possessed an amount of legal knowledge very much above the average, and it occurred to me that he might be disposed to accept one of these appointments. I therefore submitted his name to my noble Friend, and he was nominated. From the Papers since sent to me, I am glad to find that there is every reason to be satisfied with respect to the legal ability of Mr. Purcell; but I am bound to confess that the observations made by him, and to which the noble Earl has called our attention, appear to me to admit of no justification whatever. They are deserving of the gravest censure; and I cannot conceive that the noble Duke could have adopted any other course than that which he has taken.


The noble and learned Lord having stated the manner in which the appointment of Mr. Purcell was made, I can only say, after having heard the discussion, I think the noble Duke at the head of the Colonial Office acted with every propriety in declining to complete the appointment of Mr. Purcell. The language he has used was indecorous in the highest degree, and utterly disqualified him for the administration of justice in the island. Under these circumstances, I think the noble Duke has acted with the greatest propriety.


When the noble Duke called my attention to the speech of Mr. Purcell, and asked my advice on the subject, it appeared to me that nothing could be more offensive and indecorous than the expressions he used on the occasion referred to. I understood Mr. Purcell was a stipendiary magistrate, and was to be appointed to a district Judgeship. I asked whether he had been appointed to the Judgeship, or whether he was merely in course of appointment—for I thought that a different view ought to be taken of the case under these different circumstances; that however improper and indecorous the expressions he used might be, they could hardly be deemed a sufficient ground for removing him from his office; but that, if he had not been appointed, it would be quite proper to withhold the appointment. I rise now, not so much to express an opinion with regard to what Mr. Purcell has said, the matter having been sufficiently discussed, as to say that I cannot help expressing my very great regret that my noble Friend on the right (Viscount Melville) should have used such very strong expressions with regard to the able Charge of the Lord Chief Justice. That Charge, I understand, occupied five hours in the delivery, and, of course, before my noble Friend expressed so strong an opinion against it, he has taken care to read every part of it.


I have read all that was published.


Well, but it was published in an octavo volume, and I am bound to assume that my noble Friend has read every part of it, and has well considered it before he criticized it. All I can say is, that it is impossible to do ample justice to the research and the ability which that Charge displays. As to the law on the subject, persons may differ from the learned Lord Chief Justice; but there can be no doubt that the Charge was the result of the conscientious conviction of the Lord Chief Justice, expressed after due deliberation, and that in that Charge my right hon. and learned Friend displayed great ability and research. I can only say that I am sorry my noble Friend (Viscount Melville) has expressed himself so strongly on the subject. A great many persons differ entirely from my noble Friend, and are of opinion that the Charge is deserving of the highest praise.


said, he did not question the law of the Lord Chief Justice; but he did say that a Judge ought not to have displayed so much partisan feeling as was manifest by the Lord Chief Justice on this occasion.

After some inaudible remarks from Lord DENMAN,


said, that, as a legal Member of their Lordships' House, and a personal friend of the Lord Chief Justice, he could not allow the remarks of the noble Lord (Viscount Melville) to pass without notice. He fully concurred in the remarks of the noble and learned Lord on the Woolsack; and would bear his testimony to the great learning and ability displayed by the Lord Chief Justice in the Charge referred to. He must further say that, if his noble Friend could establish the charge he had made against the Lord Chief Justice, instead of holding the position of high respect which he enjoyed, that Judge deserved to be impeached at the Bar of their Lordships' House.


said, it was not for him to express an opinion upon the Charge—he had heard many persons say there were grave errors of judgment in it, and that many matters which were asserted by the learned Judge could be contradicted. He hoped those who had read the Charge had also read the answer to it.