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Expressed his surprize, that the noble duke should have withdrawn his first resolution, because it was a ground and basis for the second, which was now wantonly suspended in the air ; for it could not be said, that the smallest fact appeared to support it, or to induce the house to agree to it. The withdrawing of the first motion took away every pretension for the adoption of the second. The evil complained of he could not but hold to be imaginary ; and it was beneath the dignity of the peers to waste their time in speculating
He contended, that president Montesquieu, in the passage quoted by the noble duke, alluded not expressly to the English constitution.
That great poli. tician was not so ignorant of the English constitution as not to know that a judicial was blended with a legisla. tive power in the house of peers; and that the peers could act occasionally in both capacities. It was also to be observed, that Montesquieu was not fond of changes, even when a real grievance was discovered. For men, after suffering an evil, know its extent, and are accustomed to bear it; but they know not the operation of the remedy that might be prescribed, and have a title to entertain apprehensions, lest they might lose by adopting it. That author had likewise extended his ridicule to those who were ever eager after a refinement on freedom; and had diverted himself with Harrington, who had built a Chalcedon with a Byzantium before his eyes. To take away from judges by act of parliament the excitement of ambition and hope, would be a stroke of the vilest tyranny. Nor could he reconcile himself to the notion, that commissions should be filled with lay lords. He never wished to have a suit in chancery ; but if that misfortune should befal him, he should think himself still more unfortunate, if the seals should be in any hands but those of lawyers.
(LORD LOUGHBOROUGH,) (Afterwards Earl Rosslyn, and Lord Chancellor, a cele
brated Speaker and Judge.) He remarked, that a proneness to speculation, and a love of change, had been imputed to the noble duke whose resolutions had been under discussion. In some degree the observation might be just ; but he thought it inapplicable in the present case. The noble duke might be anxious indeed to establish a theory ; but the term theory had no sort of reference to his motions. theory it is necessary to look for something like system, or arrangement; like method, of design, or order. We desiderate something that is to be carried into practice; we expect the detection of an error, and the suggestion of an improvement. But the noble duke had pointed out no error; and was solicitous to engage them in the task of seeking a remedy for a grievance that only existed in his own imagination. He was full of complaints. He had yet ascertained and described no evil. He was fond of innovation. He had yet ascertained and described no remedy. He was profuse in impossibilities and absurdities. He assailed a practice which the discretion of the crown has repeatedly exercised, and al. ways with approbation. He had discovered in it nothing that is oppressive to the subject ; and experience, the infallible test of political truth, has demonstrated that no inconvenience can result from it.
The noble duke, he observed, lost in the maze of vague observation, and dreaming of unreal defects, was resolute to bear away from the human mind hopes and fears, which are inseparable from it, and upon which much of what is valuable in it depends. The mind of man has indeed been represented in very different lights. By some it is conceived to be every thing that is worthy and amiable; and by others it is represented as most
worthless and wicked. Such disquisitions are the province of moralists; and they may have their use. But legislators act very indifferently. They do not wander into abstract reasonings; they apply the restraints of the law to any ill habit of the mind, as it becomes predomi. nant and prejudical to the true and rational ends of society.
With a wild spirit of project, the noble duke imagines that the hope of being promoted to a commission, which is rarely necessary, and always of short duration, and the fear of being removed from a situation so precarious and uncertain, may at some time or other affect the inde. pendency of the judges of the crown, and operate as ruinous temptations to corruption and servility. From the accession of the illustrious family upon the throne, the great seal has been but four times in commission, previously to the present appointment. Now the noble duke ought to have instanced from these, that the judges who acted under them had acted improperly. He should have shewn, that their independence or integrity were hurt by their holding the great seal; and if this was impossible, he ought to have evinced to a certainty, that the present commission was different from the former ones, and peculiarly obnoxious to animadversion. But he had been able to collect no fact that could justify his conduct. He had no solid ground to rest upon ;
and he mounts up into the air.
Every man who loves the constitution, and who venerates the laws, must desire infinitely the independence of the judges. Without their independence there could be no equal or impartial administration of justice. For their independence, there can be but one wish and one sentiment. But is it to be affirmed, that this independence is wanting ? No. The conduct of the judges cannot be arraigned. At this period they have even more independence than they ever possessed at any given time since the revolution ; and it is guarded and protected in a manner the most effectual.
When a reference is made to former commissioners,
it is fit to attend to fact and experience. Did any of them betray an improper bias to the crown, or could it be ever said, that their integrity received any taint by their having been commissioners? In the first of the four commissions to which he had alluded, there were sir Joseph Jekyll, lord chief baron Gilbert, and lord Raymond. Now could it be said of sir Joseph Jeykll, that he was pliant and accommodating to the crown ? This would be to reverse bis character altogether. His inflexibility was proverbial. Could any thing like a vile subserviency or corruption be imputed to lord chief baron Gilbert, or lord Raymund ? The tooth of calumny could not fasten upon them. Their integrity and independence were as unshaken and unsullied as their professional reputations were distinguished and great.
To the judges in the other three commissions, equal praise was due ; and so far was it from being a rule, that the discretion of the crown should be directed in the selection of the commissioners by a regard to seniority among the puisne judges, that it so happened, that in the instances produced, the senior puisne judge was not called to the station of a commissioner,
As to the present commission, setting aside one person, he did not doubt but that those who might speak of it in future times might have a title to pronounce of it in the terms he had employed with regard to former commissioners. It bad indeed existed only a short time. An enlightened public, however, and a learned bar, would judge impartially and correctly of its conduct. As an individual, it became him to answer only for his
dustry, and for the intentions which he felt to discharge with fidelity the duties of his commission. He was called to act ; and it was the province of others to judge of him.
The noble duke had glanced at the augmentation which his majesty had been pleased to make to the chief justice of the common pleas, since he had the honour to sustain that office. This allusion was indecent, and be Vol. II.
longed not to the subject under discussion. If the person who now held the office were alone considered, the augmentation might perhaps be beyond his desert. But if the nature and rank and duties of the office were considered, he believed that no dispassionate man would pronounce that it was too large. Was it not right to secure the integrity and independence of a station so important as that of the chief justice of the common pleas? When he had agreed to accept that honour, he quitted a very lucrative situation in the profession; and he was given to understand, that its appointments were to be made permanently equal to what every impartial men felt to be proper for it. Under this as. surance, he had accepted the high honour which was offered to him; leaving the office which he then held, and renouncing all the advantages attending the practice of his profession. It is an observation, that what may be done at any time is very apt to be delayed. It happened that he continued in office nearly a year and a half before he either knew what the appointments actually were, or received any part of his salary. At length the extent of the augmentation was ascertained. But this augmentation was not personally and individually to him while he held the place of chief justice. The appointment was not particular and partial. It was annexed to the chief justice of the common pleas, and was to go to his successors.
In reply to Mr. Grattan.
To the invective of Mr. Grattan it was replied by his antagonist, that every member of the house could bear