« AnteriorContinuar »
probability of its being resorted to in case the conduct of aniy high officer, either at home or in our foreign settlements, should demand such a course ; and as often as the Peers are ealled to exercise this their highest function, so often must the dependence of one part of their body upon the pleasure of the Crown . for their judicial existence, be felt practically in the administration of the law. The effects, too, of this dependence in strengthening the hands of the Government, and frustrating any attempt at bringing a favoured delinquent to justice, may operate to prevent such efforts from being made, and thus secure impunity to transgressions the most generally prejudicial.
The objections raised, most unaccountably, by the Scotch Peers in 1806, and which prevailed to continue their exclusion from the House of Commons, and their dependence in the · House of Lords, are triumphantly refuted by Lord Kinnaird.
That the Articles of Union are opposed to the change, is certain'; but the general clause, reserving to the United Parliament the power to alter these Articles for the benefit of Scotland, has already covered more fundamental changes, though it never was more strictly applicable to any proposed alteration than to the présent. The frequency of the opportunity to oblige,' occasioned by frequent elections,-in other words, the recurrence of the season for jobbing, has possibly been more felt than stated as an objection to the proposed changes; but it would be unfit to refute seriously an argument which cannot be stated decently. The loss of dignity, which was more openly dwelt upon, our anthor easily disposes of.
A prejudice,' says he, I know exists in the minds of many Peers, that our dignity would be lowered by condescending to introduce our coroneted heads into the House of Commons. I am no despiser of prejudices—I should say rather of their power and influence, having observed that in general they prevail over the soundest reason-but in this case Noble Lords, I apprehend, have undervalued the basis on which that dignity reposes : they are proud, say they, of their unique situation ; the King may make his house steward an Irish Peer, or may turn his apothecary into the British House of Lords, but a Scotch Peer he cannot create. Well, but the power of the King to create ('tis pity his Majesty cannot show mercy by unmaking too) is not a jot augmented, should any Peer descend from his bench to represent English or Irish electors ; his peerage (the point of precedence always reserved) is indeed in abeyance, but each is the guardian of his own dignity, and he cannot fear to be sullied by his neighbour's littleness of soul. · · But should the said Peer be disgusted by the fatigues of the Lower House, or should the said House reject him from her bosom, he returns instanter, with all his personal immunities, to his dignities.
But on the subject of dignity, I would fain know the individual opi
rion of each one of the body I address. It may be convenient to have a seat in Parliament; but, speaking fairly and freely, do you consider that an honour is conferred on you by such an election ? I see names on the Government list most becoming the Senate, as they are most honourable and estimable in private life. It is not however less true, that such persons become senators and judges, only because the air of the Court is fa'vourable ; and, as the Emperor Paul designated the gentlemen of Russia to be those only to whom he pleased to speak, and so long only as he was pleased to speak to them,-80 your Lordships, whose equals the Crown cannot create, must occupy or quit the seat of justice at the Minister's nod. Is not the situation of an Irish Peer more dignified than yours? He is irremovable, and his opinion is uninfluenced by the fear of his elimination when his lease shall expire. In your case, should the mania of public business have unhappily seized you, it requires a most unreasonable quantum of stoical virtue to prefer your opinion to your seat: but what does the Irish Peer fear if he is rejected ?. He seeks refuge in an English borough, and is cured, or at a crisis, makes his bargain, and gains an hereditary seat by your side.',
The subject to which our attention has chiefly been pointed by this tract, is one of the last importance to the community, the Independence of Judges. We have more than once had occasion to touch upon this topic, and to correct the error which prevails as to the period when whatever independence the Judges have was secured to them. But it will be convenient to preface the observations which are now to be offered, by stating the history of this matter.
Before the Revolution 1688, the Judges were not only ap. pointed by the Crown, but held their offices during pleasure, and were in practice removed as suited the purposes of the Government. The instances were numerous in which this prerogative was exercised in such a way as left no doubt that the object was to punish those who had done their duty, and to provide more pliant instruments. Indeed, the interference of the Crown was generally the most distinctly perceived in those great political trials which fixed men's attention in a peculiar manner; and their pbject in view was as little matter of doubt as the means taken to attain it were shameless. Let us, for ex, ample, look to the period in the history of the constitution which Blackstone pitches upon as that of the greatest theoretical perfection, the reign of Charles II., just after the passing of the Habeas Corpus Act. He admits that this year (1679) was followed by times of great practical oppression;' but it cannot surely be pretended that the very worst of those oppressions, the cause too of all the rest, the judicial murders which were committed by prostituted judges and packed juries, were not the legitimate offspring of the theoretical perfection
pointedere in Pfihe insta in sucho had doo
Puisne Judges's that they wefore turned 1, Bu
whereby the law was administered by creatures of the Court. In 1681 Scroggs was displaced, and succeeded by Pemberton, who was expected to be more obsequious than he proved; for though, in Lord Russell's trial, at which he presided, he ruled every material point against the illustrious accused, and espe'cially refused his lawful challenges to the jurors,' and made those partial and unjust constructions of the law' of treason, which the Act reversing the attainder reprobates, so severely, yet his summing up on the evidence disappointed the insatiable hopes of the King and the Duke of York,—and Burnett as serts his being turned out soon after,'- to what he calls his • stating the whole matter with so little eagerness against Lord • Russell,' (History, II. 556.) Previous to the trial of Sidney, a Chief Justice free from all exception was found in the person of Jeffries; and that infamous wretch was well seconded by Puisne Judges, of whom the historian (to paint their character in a word) says that they were fit to sit beside him,' (ib. 568.) Pemberton had been once before turned out to make way for Scroggs; and, upon his second dismissal, Burnett observes, that the · Court would be served by none but by men of a • thorough-paced obsequiousness,' (ib. 502.) After the trial of the Bishops in the following reign, Powell and Holloway, who had given judgment in their favour, were immediately dismissed. Yet we have no doubt that, if any one in those days had proposed to make the Judges independent of the Crown, he would have been told that those venerable persons were wholly incapable of being influenced by the hopes of Court favour, and knew no other motive than a conscientious wish to discharge the duties of their exalted station. Indeed, some of their successors in our times have seemed unwilling to believe the subserviency which all the history of that period attests. Lord Ellenborough once went out of his way to praise Pemberton's conduct on Russell's trial—not that defect in his perfect obsequiousness which caused his removal, but those directions in point of law which were afterwards stigmatised by Act of Parliament, for which the Statute terms his execution a murder; and Lord Kenyon spoke of the proceeding in a way which plainly showed he had never read, or wholly disapproved of the Statute, *
* It is possible that those sages of the law (the latter especially) would have paid more respect to the words of a Royal grant than those of an Act of the Legislature in such a case as this. The patent, conferring the Dukedom upon Russell's father in King William's reign, states the desire of their Majesties to record their sense of the consummate virtue
that ornament of his age, whose name could never be forgot so long -- Soon after the Revolution, that is in 1692, a bill was brought in to make the patents of the Judges quamdiu se bene gesserint. It passed both Houses of Parliament; but the King refused his assent, and it was dropt for a time. The cause of its failure is remarkable, and furnishes the strongest proof of its necessity. Some of the Judges themselves, we are informed by Burnett, represented to the King that it was not fit they • should be out of all dependance to the Court' (Hist. II. 86.) The measure was afterwards incorporated with the Act of Settlement, and to take effect upon the limitation of the Crown vesting in the Electress Sophia or her heirs, (12. 13. Wil. 3. c. 2.) Like all other commissions from the Crown, those of the Judges expired upon a demise, or six months after; and it remained to secure them from this chance of being removed. A careless expression, and a great omission of Blackstone, who, in enumerating the improvements which the Constitution has received since 1688, says nothing of the important provision of the Act of William, and speaks of the Judges being made completely independent' by the desire of the late King, has given rise to the prevailing belief that it was he who first made them irremoveable. 4. Com. 433.) The fact is stated correctly by that learned author in another part of his work, and credit given to the original measure, though far too much praise is bestowed upon the later improvement. (1. Com. 269.) We, therefore, the rather cite what is said upon the subject by His late Majesty himself, in the speech recommending the bill. • In consequence (says His Majesty) of the act passed in the • reign of my late glorious predecessor, King William III., • for settling the succession of the Crown in my family, the « Commissions of the Judges have been made during their • good behaviour; but notwithstanding that wise provision, • their offices have determined upon the demise of the Crown, ( and at the expiration of six months afterwards, in every in• stance of that nature which has happened.'- I look upon • the independence and uprightness of the Judges of this land • (adds the King), as essential to the impartial administration • of Justice; as one of the best securities to the rights and li• berties of my loving subjects, and as most conducive to the • honour of the Crown; and I come now to recommend this
'as men preserved any esteem for sanctity of manners, greatness of ' mind, and a love to their country, constant even to death ;' and the new honours are stated to be conferred · to excite his son, the heir of • such mighty hopes, to emulate and follow the example of his illustrious (father.
? interesting object to the consideration of Parliament, in order
that such further provision may be made for securing the
Judges in the enjoyment of their offices, during their good-be• haviour, notwithstanding any such demise, as shall be most ! expedient.' (Com. Journ. 1761.) · Let it not be thought captious if we take leave to dissent from the layish praises which have been heaped upon this act of the late king. That it was a wise and a beneficial measure, and one which removed a considerable defect in our judicial polity, may safely be admitted; the minister who advised it, the illustrious Chatham, deserves to be held in grateful remembrance, and the Prince whom that minister served, and in whose reign the improvement was effected, might justly have been commended likewise. But to represent it as any sacrifice on the King's part; as an act of magnanimity, or even as any thing disinterested, is the height of unthinking adulation. The Judges for the time being are quite independent of the monarch for the time being, though liable to be removed at his death, provided he cannot displace them in his lifetime. They are not, indeed, so independent of his successor ; they have a good çleal more cause to worship the rising sun, and also to keep well with the ministers who are likely to survive their royal master, or with those whom his heir is likely to employ; and such things have happened as a king not being on the best terms with his heir-apparent. It is, therefore, absurd to pretend that his late Majesty gave up any thing, either of his personal influence, or of the prerogative generally, by acceding to Mr Pitt's measure. The station of the Judges gained considerably; they were removed from all suspicion of courting an heir apparent's favour; but neither the king in whose reign the change was made, nor any succeeding monarch, could ever find thạt his influence over the administration of justice was in the slightest degree affected by it.
There is, however, a defect of a far more serious nature than that which was then remedied; one which does tend to make the Judges dependent on the Crown, leading them to court the favour of the reigning prince; one to remove which, will both purify the administration of justice, and confer upon the sovereign in whose reign the improvement shall be effected, the praise of having both wisely and magnanimously benefited the state ; because the reform we allude to, will demand some sacrifice of the Royal influence. As long as the system cf translating Judges continues, it is in vain to talk of their independence; and while the law allows their translation, how rarely soever it may happen, we greatly fear, the evils produs ced by the mere possibility will be felt.