Sitting of 22 June 1805

CONDUCT OF JUDGE FOX.
The house met by special adjournment at one o'clock, and soon after their lordships resolved into a committee, for the farther consideration of the case of Mr. Justice Fox. The remaining witnesses upon the charge under consideration being examined, Mr. Romilly, in a speech of considerable length, summed up and commented upon the effect of the evidence; at the conclusion of which the counsel were ordered to withdraw. The house then resumed, and
Lord Hawkesbury gave notice, that on Tuesday next he should submit a motion to their lordships for suspending the proceedings in the case of Mr. Justice Fox, during the present session. He should, on the same day, present a bill to the effect he had formerly stated, namely, to continue the proceeding in the state they then were in the next session of parliament.

THELLUSSON'S APPEAL.
Lord Mulgrave called the attention of the house to the circumstances in which this important cause stood before their lordships, for the purpose of submitting a motion thereon, to which the house, he trusted, would, in its wisdom and justice, accede. He expatiated upon the peculiar nature and importance of the cause; a cause involving on the one side the dearest and most important interest of the parties, as far as worldly interests could be dear and important; it was therefore one which, abstracted from the peculiar and singular circumstances of its nature, upon which their lordships ought not to decide, except in the most solemn and deliberate manner. What he intended to propose was, first, that the order for the attendance of the judges to deliver their opinions upon it on Tuesday be discharged; and, secondly, that the case should be reheard. Their lordships would recollect the great length of time since the case was argued at their bar, and the changes that had taken place in the interval. Since that time they had lost that great man and profound legal judge, the late chancellor, who gave the original decree in the cause, but who had recommended the parties to take the decision of the highest court of judicature in the kingdom upon it. They had lost also that worthy man and excellent lawyer, whose knowledge and learning in subjects of the nature of that alluded to was particularly great; he meant the late lord chief justice of the court of common pleas, for whom his private friendship was as great as his esteem for him as a lawyer. There were, Since the period of the last hearing of the case, two new judges appointed, men certainly every way adequate to the station. The one remarkable for his long and incessant forensic practice, and his profound erudition in every branch and department of the law; he meant lord chief justice Mansfield: the other, one for whom he had the strongest personal regard, and of whose fitness in every point of view for the station to which he was exalted, Mr. Baron Sutton. There were also many changes amongst the noble members of that house, and those who
550
were definitively to judge tile merits of the question. These were cogent and conclusive reasons for the rehearing of the case, such as he thought no man could be founded in objecting to. The delay he proposed might be productive of the highest possible advantages, with regard to the interests of real justice on the one side, and, on the other, it could not possibly be attended with injurious consequences; for, accumulation being the object, that would go on of itself, and could not, by delay, be impaired. Added to this, what their lordships would have to decide upon was merely a dry abstract point of law. Their decision would involve no great legal or political principle; for the principle which the case had involved no longer existed; it was discountenanced by the legislature, inasmuch as, shortly after the case was known, a bill was brought in to prevent the recurrence of similar instances. The delay which he proposed was one which he must suppose, in the first instance, would be acceded to by his noble friend on the woolsack; judging from the kindness and candour of his nature, his conscientious anxiety to do every thing that was right, and even from that laudable diffidence which he seemed to have in his own judgment, though no man in the kingdom had less reason for such diffidence. Under these impressions, he thought he should have the concurrence of his noble and learned friend, and, under the considerations he had adverted to, that their lordships would generally accede to his proposition, which would afford them an opportunity of giving a more mature, deliberate, and correct decision upon a case of such great and singular importance. The noble lord then moved the first of his propositions, in regular order, which was, "that the order for the attendance of the judges on Tuesday next, to give their opinions in the case of Thellussons and Woodfords, be discharged."
The Earl of Westmorland decidedly approved the proposition of his noble friend, and enforced the consideration of some of his leading arguments. Let us look, said his lordship, at the question as it stands; a question of the greatest importance to the public as well as to individuals. This case was, in the first place, brought to the court of chancery, it was considered of such difficulty that the chancellor thought it necessary to call to his aid three judges from the other courts. These judges concur in opinion; but, if any credit can be given to the law reports, upon grounds separate, discor-

551
dant, and militant against one another. The chancellor having given the judgment, in conformity to that opinion, advised the parties to appeal to the house of lords. The case was, of course, appealed to the lords, was heard with that attention which your lordships, as is your duty as well as practice, pay to the causes before you. A case was referred to the judges; their opinion has not yet been delivered; since that period, considerable alterations have arisen. In the first place, at least 30 new Members have been added to this house, who are to decide upon a question, upon which they have not had an opportunity of hearing one word. In what situation does the house then stand with the public? are we judges in dernier resort, or are appeals to be considered as illusory and useless? Next, we have had the misfortune to lose the able person who not upon the woolsack and decided this case; and also the chief justice of the common pleas (one of the judges who gave an opinion on the case) so that in this important case we are deprived of knowing the grounds upon which the appeal was recommended. Since that period two new judges have been received on the bench; one of them, the chief justice of the common pleas, the first equity lawyer in the kingdom, whose opinions have almost been held as oracular, the other his majesty's late solicitor general, likewise very eminent in this particular branch of the profession. Under these circumstances, justice would require of your lordships to obtain every information possible upon such a case as the present, and have the assistance and advice of those able persons, which can only be had by ordering a new hearing; a favour seldom refused to persons desiring it. Even in ordinary cases, the subjects of this land have a right to the opinion of the twelve judges, whilst the petitioners would have only the opinion of ten of the judges, should their petition be rejected. No possible injury can arise to any party by the delay; the directions of the will were fulfilled, as accumulation continued; neither could it be said that the delay would affect any other question, as the legislature had decided this will to be so dangerous, that it had passed an act to prevent similar devices, and it could operate on no other cause, as it had been stated, and net denied, that there was no case similar to it in any record of the law. No injury, therefore, could arise from the rehearing of this cause, as by so doing your lordships would shew your attention to justice; would
552
obtain every information that could be had upon the subject; and the petitioners would feel, that in submitting to the judgment, whatever it might be, your lordships had given every opportunity of stating their case: whereas, if this was refused, they would feel that they were not allowed those opportunities which were granted in more ordinary cases. If all the judges concurred is One opinion, you would know all the wisdom of the law was with you; but if you gave an opinion without such concurrence, you may, perhaps, hereafter think that you have decided against individuals, when if all the wisdom of the law had been collected, you might have had different advice. It may be said, that the same objections may again occur of change of judges, or members of this house; no doubt this objection does apply to grant delays, it is a reason why the delay should not have continued to the present period; but the delay having arisen, it is no reason we should decide without due deliberation, without due investigation, without some members having any information on the subject, and without all the advice we are entitled to ; let the case be fairly argued, and an immediate decision given.
The Lord Chancellor observed, that the noble lord Who made the motion, and the noble earl who so decidedly supported it, seemed to think, that the decision of the house would depend upon his individual recommendation. He was fully aware of the great and particular importance of the case; and, from his view of every thing connected with it, he was firmly of opinion, that the character of the administration of justice of the country, should not be brought into question, by their lordships acquiescence in what was now proposed. His noble friend who made the Motion argued, as if the case in question was a singular and unique case, and productive of no effects beyond itself. But he could tell that noble lord, that a great number of cases, of wills particularly, in a great degree depended, as to a final decision, upon the ultimate decision of their lordships. He knew what had been the living and dying judicial opinion of the great law authority adverted to upon the case; what professional men might say, other than in their characters of lawyers and judges, was not so much to be relied upon; but this he believed, that as to the real legal merits of the question, no lawyer with a gown to his back, had any difference of opinion, or would hesitate to declare it instantly, were it only in a case of ten pounds; they would see, there-

553
fore, how much of the deliberation and caution which had obtained, derived from the consideration of the immense property involved, and the particular bearings of the case in other respects. The cause had certainly been a very long time under consideration, and it was nearly two years since it was argued and discussed at their lordships bar. Proceedings tending to the final decision were more than once postponed, and at one time to another session, at the instance of a noble and much respected learned friend, now no more, on account of the absence of the noble lord himself (Mulgrave) on professional duty. Besides, the consideration of the judges having to deliver their opinions on Tuesday could be no possible reason for their lordships then coming to any premature resolution, as to subsequent proceedings. Whether the judges should be unanimous in their opinions upon the case, or not, it would not go to preclude the house from exercising its judgment, or its discretion as to the future preferable line of conduct. When the judges should have delivered their opinions, it would be time enough for the consideration of the most material part of what the noble lord proposed, but, under all the circumstances of the case, and the proceedings hitherto adopted, he could not give his assent to the motion of his noble friend.
Lord Mulgrave spoke in explanation, and pointedly adverted to what transpired from the noble lord on the woolsack, respecting his having, on the suggestion of a noble and learned lord, now no more, consented to postpone the consideration of the case in question from one session to another, on account of his own necessary absence on professional duty. Such a proceeding was not only without his concurrence but without his knowledge, and what he must disclaim as any argument against his proposition for further delay, but surely, if his noble and learned friend had consented to postpone the business on such a ground as that, on the absence of an individual peer, who professed to know nothing of the law, and who never troubled the house with observations on the subject, surely he could not consistently refuse to accede to his proposal, on the strong grounds which had been laid for it; and which involved the opinions, either as left to the house, or as not having the case regularly argued before them; of four men, either great and eminent authorities, or profoundly versed in the science of the law.
The Lord Chancellor, in explanation, was free to confess, it would have been better, had the noble and learned person alluded to, never made such a request, or, that he had not acceded to it.
Lord Hawkesbury observed, that with respect to what was thrown out as to the influence which the opinions of the noble lord on the woolsack, and of the learned judges, must have upon the decision of the house, for his part, his vote upon questions of that kind would be regulated by the confidence he should have in those sages of the law. At the same time, he admitted, that it was perfectly competent to any noble lord to deliver his opinion upon subjects of the kind, and to decide according to the dictates of his own judgment, and such was perfectly in unison with the appellant jurisdiction of that house. With respect to the grounds which his noble colleague considered as adequate for doing that which might tend to postpone the decision of the house upon the case question a considerable time longer, he could by no means regard them as such. Were they to postpone proceedings of the kind, on account of the demise of one or two of his majesty's judges, and the appointment of others in their room, or the loss by death of one or two members of that house, however respectable, things continually occurring, they might put off their decisions to eternity. — The question was then put, when the motion was negatived without a division.—Adjourned.