Mr. Lushington having moved, that the Speaker should issue his warrant to the clerk of the crown to make out a new writ for the election of a burgess for the borough of Eye, in the room of sir William Garrow, who, since his election, had accepted the office of Chief Justice of Chester;
Sir Samuel Romilly
observed that the appointment which had occasioned the necessity for the motion just made by the hon. gentleman appeared to him to be so objectionable in its nature, that he should not consider himself as having properly discharged his parliamentary duty, unless he called the attention of the House for a few moments to the subject. It was not his intention to make any motion respecting it; he had not heard that such was the intention of any other hon. member. The present, therefore, was the only opportunity which he could ever have to make the observations that seemed to him to be so necessary. He understood that his Majesty's Attorney General, who had recently accepted the high judicial office described in the hon. gentleman's motion, had not resigned the office of Attorney General, and did not mean to resign it; but that it was his intention to hold the two offices together. To him (sir S. R.) it appeared that the two offices were wholly incompatible. To appoint a gentleman holding a lucrative office at the sole pleasure of the crown (and removable from that office the very moment that he might give dissatisfaction to the crown) to a high judicial situation, was in his opinion extremely inconsistent with that independence of the judicial character which it was so important to preserve inviolate. It could not be out of the knowledge or the recollection of most of the honourable persons who heard him, that early in his Majesty's reign, and on a very memorable occasion, his Majesty was pleased to state to parliament, that it appeared to him that the independence of the judges was essential to the impartial administration of justice, to the preservation of the liberty of the subject, and to the maintenance of the honour of the crown. He could not think that these sacred considerations were attended to in the appointment of a gentleman to a high judicial office, who, as he had before observed, held at the same time another office, very lucrative, in its nature, and from which he was removable at the pleasure of the crown at any moment at which the crown might think fit so to remove him. Besides, it was evident that to place as judge over the subject an attorney General, whose duty it was to assert and maintain the rights of the crown against the subject, was not the way to insure the equal administration of justice. He trusted, that in making these observations, he should not be understood as intending any thing personal or any thing disrespectful to the learned gentleman in question, who had merely done as others had done before him. An individual who stood in the high situation of his Majesty's Attorney General, had a right to expect, and had a right that the public should expect for him, that when any high judicial situation became vacant, he should be vested with the judicial functions. But then he ought no longer to retain his office of Attorney General. He knew that there was a particular Attorney General for Chester as well as an Attorney General for the King; and that in many, perhaps in most, cases, prosecutions might be conducted in the court of Chester by the former, without any previous interference by the latter. But this was not always the case. For instance, the recent criminal prosecutions for riot in that part of the country were directed by his Majesty's Attorney General, who assisted at the consultations of his Majesty's government, the object of which was to ascertain the best mode of quelling the disturbances. Should such occurrences again take place under the existing circumstances, persons would be tried by an individual who had advised and directed their prosecution! It was undoubtedly true, that these two offices had at former periods been held by the same individual. Lord Kenyon, lord Alvanley, and other persons whose memory he highly respected, had so held them. But to him did the appointment seem so inconsistent with pure notions of the independence of the judicial character, which ought not to be exposed to be affected either by the hope of royal favour or by the fear of royal resentment, that no example, even had sir Matthew Hale, or lord Somers himself, afforded it, could in his opinion sanction such a measure. It was a great misfortune, that the instances to which he had just alluded, in which the two offices were held by one individual, had been allowed to pass without comment. Impossible as it was to justify the appointment, it was essential that such silence should not again be observed and particularly in that House; one of the peculiar duties of which was, vigilantly to watch over the impartial ad- ministration of justice. What would be said by the country, if one of the twelve judges was to accept an office inconsistent with the proper discharge of his judicial functions, and from which he was removable at his Majesty's pleasure? What then could be said of an individual who held the two incompatible offices of Judge and Attorney General; the emoluments of the latter office being four or five times greater than those of the former, and from which latter office he was removable at the pleasure of the crown. Could such a person be considered as an independent judge? The House must be aware, that the office of chief justice of Chester was a very high one, being next in importance to those of the twelve judges; the chief justice of Chester having always to try an extraordinary number both of criminal and of civil cases. He had felt it to be his duty to throw out these observations; but be repeated, that it was not his intention to make any motion on the subject.
The motion was then agreed to.
On the motion of Mr. Ponsonby, a new writ was ordered to be issued for the county of Kildare, in the room of lord Henry Fitzgerald, who had accepted the office of steward of East Hundred.