HC Deb 18 July 1811 vol 20 cc1017-27
Lord Cochrane

rose and said:

Sir; The delay that has taken place since my return to England, and the legal authorities I have consulted, will, I trust, evidence that I trespass on your attention with reluctance, relative to the conduct of the judge and members of the court of vice admiralty at Malta; partly from a desire to avoid the possibility of private motives being imputed to roe, but chiefly from a conviction that parliament should not interfere in matters cognizable in the courts of justice.

How far, under the last impression, I am warranted in calling upon this House to exercise an authority in the present instance, will appear by the opinions of sir A. Piggott, Mr. Holroyd, Mr. Leach, and of another learned gentleman who is not now in his place. "Process of the Courts," says sir A. Piggott, "does not extend to Malta, there is no mode whilst they are abroad to compel appearance to actions here." The answers of the other learned gentlemen being the same in substance, I need not detain you by reading them.

Three years have passed since I memorialed the admiralty on this subject; it cannot therefore be said that I have acted with precipitation. Indeed, I have had time enough to reflect, and I do assure you, that I am fully aware of the responsibility which I shall incur if I fail in establishing whatever accusations I bring against a judge presiding in one of his Majesty's courts, and against those acting under his authority; but furnished as I am with original documents, having the signatures of the judge and members of the court, I am not inclined to shrink from the task of proving their violation of the acts on your table, especially of the 37, 38, 39, and 41st sections of the 45th of his present Majesty, chap. 72d. The first of which empowers the King in Council alone, to make or alter a table of fees to regulate the charges in courts of vice admiralty, and yet, the members of the court of Malta fabricated one for themselves, which the judge subsequently altered by affixing a note in his own hand, abolishing the table in toto, except by reference to certain unascertained charges made in a distant court, which were not set forth. This note is as follows: "At a meeting of all the members of the court shortly after its arrival, for the purpose of settling what should be considered as reasonable fees, it was agreed, that in no instance they should exceed the proportion of one third more than those paid for similar services in the high court of admiralty in England," signed "J Sewell:" who thus assumed the authority of the king in council, in open violation of the 37th, and in contempt and defiance of the penalties enacted by the 38th and 39th sections, which declare that, "receiving or taking any fee or fees beyond those specified in the table aforesaid," that is, the table authorised by the King in Council, shall be punished by the loss of office; and further, "demanding or receiving any sum or sums of money other than the fees aforesaid, shall be deemed and taken to be extortion and a misdemeanour at law, and shall be punished under and by virtue of this act." Words cannot convey a more distinct prohibition, and yet, I hold in my hand demonstration of an opposite line of conduct being pursued by the court. This is not all, the law directs that the "Table of fees, authorised as aforesaid, shall be suspended in some conspicuous part of the court in which the several judges of the vice Admiralty court shall hold their courts." At Malta, however, it was concealed, first, during five years in a drawer, and when taken therefrom in consequence of loud complaints on the subject of their charges, it was affixed, not in some conspicuous part of the Court," not in the Court at all, but on the door of a private room behind the Registry, where suitors could have no access to it.

Sir, the fabricating, altering, and concealing the table of fees is, perhaps, the least profligate part of their conduct. What will the House think when they find that John Jackson the Marshal, who, to the knowledge of the judge, acts also as Proctor in defiance of the law, is in the constant habit of charging his clients of, the navy, for attending, feeing, consulting, instructing and admonishing himself, and this in the very teeth of the 41st Section, which enacts, that "No Registrar or Deputy Registrar, Marshal or Deputy Marshal, of or belonging to any of his Majesty's courts of Vice Admiralty, shall, either directly or indirectly, by himself or themselves, or by any Agent or Agents, or any person or persons whomsoever, act or be concerned in any manner whatsoever, either as an advocate or Proctor." Mr. Jackson's charges are so ingenious that I must beg leave to read a few of them. "Attending in the Registry and bespeaking a Monition, two crowns; paid for the said Monition, under seal and extracting, nine crowns; copy of the said Monition fur service, two crowns; attending the Marshal (himself observe) and instructing him to serve the same, two crowns; paid the Marshal fur service of said Monition, two crowns; certificate of service, one crown; drawing and engrossing an affidavit of service two crowns; oath there to and attendance, two crowns two reals and three scudi." How exact!—ten shillings and two pence three farthings for an oath that he had attended on himself with a Monition! One of these bills was taxed by the Deputy Registrar, who admitted these iniquitous charges. Yes, Sir, they were allowed and admitted by Stevens the Deputy Registrar, who treats his friends with Burgundy and Champaigne out of the proceeds of captures made by the navy, from which fund, John Locker the sinecure Registrar, like the sinecure Registrar at home, also derives his unmerited emoluments. I ask, is it fit that the reward granted by his Majesty and the legislature to the navy, for the toll and risk which they undergo in making captures from the enemy, should be thus appropriated?

That I had a right, to demand the taxation of such a bill as that which I have shewn, there can be no doubt, even if I could not produce the opinion of his Majesty's Attorney-general to that effect. Yes, the opinion of sir V. Gibbs, and of the Solicitor-general, signed also Charles Robinson, William Battine, T. Jarvis, to all of whom, the memorial which I presented to the Admiralty was referred in April 1809. "The expences," say these learned gentlemen, "in this case do not appear to have been brought to the knowledge of the court so as to have given the judge an opportunity of exercising his judgment upon them; that would be the proper mode of redress for grievances of this description."

Thus instructed, I addressed the judge on my return to Malta, in February last soliciting that he would be pleased to, direct my bill to be taxed, to which he returned the following answer, addressed on his Majesty's service, "My lord in; reply to your letter of yesterday's date, I, beg leave to refer you to your proctor for the information you are desirous of, it not-being the practice of the vice admiralty, court here, any more than the court of King's-bench in England, to enter into private correspondence with suitors on the subject of their suits or of any matters connected with them. Signed, J. Sewell."

It appeared extraordinary that I should be referred to the person complained of, as judge in his own cause. Still, however, in compliance with Dr. Sewell's advice, directed my agent to make the application, and the following, as might have been anticipated, was the ingenuous gentleman's reply. "Sir, My bill in this case having been delivered to you so long ago as the 8th of August 1808, and having been paid by you soon after, I was a good deal surprized at your note, received yesterday, informing me that Lord Cochrane wishes to have the said bill taxed, and therefore I beg that you will apprize his lordship that it is a thing quite unprecedented to tax a bill which is paid. I should have supposed that the advice I gave his lordship, not to proceed in this cause, would have exempted me from the suspicion of having made unwarrantable charges." Signed, "John Jackson."—As the unwarrantableness of the charges did not rest on suspicion, I wrote to Mr. Jackson myself, who answered, "I humbly conceive that your lordship is not now entitled to demand a copy of your account, and therefore I beg that you will excuse me from complying with such demand" I next required him to submit my account for taxation, this he also declined, as follows, "My lord, in reply to your letter of this day, I have to inform, you that I cannot consent to open an account that was closed two years ago, and that is my only objection to my bill, in the cause of the King George, being taxed, which I hope your lordship on reflection will see to be a reasonable objection-I confess that I did not consider the lapse of two years to be any objection at all particularly as I was absent from Malta when the bill was paid, and no earlier opportunity had offered to call for a revision of the charges: for this reason, and forti- fied with the opinion of the learned gentleman opposite (sir V. Gibbs) about a month afterwards, I again addressed Dr. Sewell on the subject, who, so far from "exercising his judgment," on the marshal's iniquitous bill of costs, did not condescend to take the slightest notice of my communication, though furnishing him with extracts from Mr. Jackson's written refusals.—Neither did the Judge reply-to a note delivered to him on the following day.

Being thus excluded from the "proper mode of redress for grievances of this description;" I proceeded to the court room of the vice admiralty for the purpose of comparing the charges contained in numerous bills in my possession, with the established fees, which I was instructed by the acts of parliament, "should be suspended in some conspicuous part of the court," every part of which I searched in vain; neither was the table In the registry, where his Majesty's advocate directed me to look for it, who, on my returning into court again, to make further enquiry, said, that I would find it affixed on a door leading to the adjoining room.

That mutilated paper, concealed contrary to law, I was accused of having taken down and carried away, from a place where it could not have been affixed, except in defiance of these statutes, and in contempt of justice. That, Sir, was the paper for which I was followed through the streets of Malta for the space of a week by the deputy auctioneer, stiled in the judges' warrant and attachments by the title of "deputy marshal," but who, in fact, never had an authority from the marshal; perhaps, because the marshal was conscious of having vitiated his powers by the illegal acts of which he was guilty, and thus thought to escape the consequences which might arise from the acts of his nominal deputy. So loosely are things conducted in that court! Surely no reasonable man can blame me for refusing to be taken to jail by the deputy auctioneer. Indeed, Chapman admits, in his affidavit of the 24th of February, that my objection was to his want of authority; for, I naturally concluded that unless he was an officer of the court his acts might be disowned, and thereby the guilty would escape punishment.

That this was the view which I took of the case, will appear, by my offering no resistance to James Houghton Stevens, who was appointed, on Chapman's nomi- nal resignation; I say. Sir, that I offered no resistance, for, by refusing to walk to jail, I did no more than decline, by an act of my own, to contribute to illegal proceedings.

It is not my intention to trouble the House at length relative to this affair, which is of trifling importance, compared to the mischiefs that arise from the system-of plunder and abuse practised in the court" of vice admiralty. However, it may not be improper to mention, that I was con-ducted by the keeper of the jail to a place with a broken window, barred with iron, furnished with an old chair, and a close stool in the corner. From this, however, I was removed, as the judge began to fear the consequences of his illegal acts; and on the third day, being brought from the keeper's room to the court of vice admiralty, there, without an accuser, except the judges, that learned and worshipful gentleman attempted in the absence of proof to administer a long string of interrogatories, which I of course refused to answer, and thereby furnish what might be construed by him into evidence of my having taken away his illegal table. Being farther pressed and threatened, I delivered a Protest in writing "against the illegal warrant issued by William Stevens, an examiner and interpreter to the vice admiralty court of Malta, registered merchant, commission broker, and notary-public, calling himself deputy registrar of the court, and professing to act under an appointment for John Locker, sinecure registrar, and further against the illegal endeavours to execute the warrant by John Chapman, deputy auctioneer, acting for and on behalf of—Wood, late private secretary to lord Castlereagth, a non resident, enjoying an income of about seven thousand pounds sterling per annum, derived from the sale of prizes, and the goods of merchants trading to Malta, but calling himself deputy marshal of the vice admiralty court, and professing to art under in appointment from John Jackson, proctor and marshal, contrary to law; and farther against all acts of the said John Jackson, in the capacity of marshal, by himself or his deputy and against John Locker, sinecure registrar, and William Stevens, calling himself deputy registrar; John Locker having, under the signature of William Stevens, taxed bills of fees and expences of the court of vice admiralty, wherein the fees of the said John Locker and William Stevens in their capacity of registrar, deputy registrar, examiner, interpreter, &. &. &. are made and examined by themselves, and in which various illegal charges were allowed and suffered to be made by John Jackson, as proctor, for attending, feeing, consulting, and instructing himself as marshal; in which double capacity he acts, in defiance of the 41st and of the 45th Geo. 3rd, chapter 72." And further, I solemnly protested against John Sewell, styling himself judge of the aforesaid court, for refusing by letter dated the 13th of January, 1811, to order satisfaction to be given by the said John Jackson, referring to him a judge in his own cause; and likewise for not having given any answers to official letters delivered to him, bearing date the 19th and 20th of February, 1811, on the same subject. And further I protested against the said John Sewell, for not complying with the Act of Parliament, which directs, "That a table of fees shall be suspended in some conspicuous part of the court, in which the several judges of the court of vice admiralty hold their sittings."

Sir, the judge at first refused to receive any protest, but afterwards did so; and afterwards I was re-committed to prison, not for contempt of court, but for the old accusation of not having complied with certain warrants addressed to a person styled deputy marshal, who never had an authority to act as such. That no proof existed of my having taken the table of fees, will appear by the following affidavit of commodore Rowley, commissioner Fraser, and captain Murray Maxwell of the navy:

"Be it known to all persons to whomsoever it may concern, that on the 2nd day of March, in the year of our Lord 1811 personally came and appeared before me the undersigned notary public Percy Fraser, com-missioner of his Majesty's navy, resident in the island of Malta, Charles Rowley, esq. captain of his Majesty's ship Eagle, and Murray Maxwell, esq. captain of his Majesty's ship Alceste, and solemnly made oath that on the aforesaid 2nd day of March, whilst the court of vice admiralty of the said island of Malta was sitting, they severally and distinctly heard John Sewell, L. L. D, the judge thereof, and whilst sitting in his judicial chair, admit in open court, and in the presence of divers persons there assembled, to the right honourable lord Cochrane, that there existed no proof in the aforesaid court of his said lordship's having taken down the paper in question, by the judge aforesaid called the table of fees. (Signed)

PERCY FRASER, C. ROWLEY, MURRAY MAXWELL. On the 2nd day of August, 1811, the aforegoing attestation was duly sworn at Malta, where stamps are not used:—before me, "CHA. EDW. FENTON, Notary Public. Notwithstanding the confession of the judge in open court thus attested, I remained unnoticed three days longer in the public jail, where, I now clearly saw that it was the intention of the judge to detain me until the packet had sailed for England, and probably until she returned to Malta with instructions. I therefore wrote to the governor, who, having consulted Messieurs Moncreiff, Forrest and Bowdler, three gentlemen of the law sent me their opinion, that his excellency should not interfere with a court, acting, as they were pleased to call it, under his Majesty's authority, although in violation of the law. I addressed the president also, who said, that the courts of Malta could not interpose. Indeed, had it been otherwise, little good could have been, expected from an appeal to these courts, which are still governed by the iniquitous and oppressive Code of Rhoan, to the disgrace of all the ministers who have ruled, since the surrender of the Island to England. Sir, The Maltese stipulated then that a constitution securing property and rights should be granted, and trial by jury, but these have been denied, and examinations are still taken, and sentence pronounced with shut doors, by their judges whose appointments are during pleasure. I do not impute blame to his excellency the governor, for whom I have a high respect, yet I must say that the system of blending the military and civil authority cannot fail to become oppressive. Ministers have no better excuse for this union of power contrary to the express stipulation of the inhabitants, of the island than a despicable petition signed by the dependents on government, and shamelessly transmitted; and received as the voice of the people! Being furnished with affidavit, that the judge did not intend to proceed in the matter on the next, court day, I resolved, as the door was locked and guarded, to get out by the window, which I accordingly effected; and the following proclamation was issued for my apprehension, in which I am designated by as many names as if I had been a notorious thief.

    cc1025-7
  1. ESCAPE OF LORD COCHRANE. 1,137 words