§ On the first clause it was proposed to fill up the blank with 4,000l.
Mr. W. Williams
objected to this increase of salary. He was aware that the pretence for it was, that the emoluments had been much greater during the time of war. He admitted it; but they were proportionally less. They had now been at peace twenty-four years, during which time the Court of Admiralty had been presided over by many able lawyers, who had been satisfied with the present amount of emoluments—namely, 3,000l. a year—by Lord Stowell, by his successor Sir Christopher Robinson, who had left a lucrative practice in these courts, and by Sir John Nicholl, each of whom had had sufficient interest to have the salary raised if there had been any justification for it. He ventured to say, that if the right hon. Baronet the Member for Tarn worth were in office he would not think it necessary to make any such proposition. He would therefore move that the sum of 3,000. be substituted for 4,000l.
§ Mr. C. Wood
said, it was true that the emoluments of the office amounted to about 3,000l.; but the salary and emoluments which Lord Stowell had received during the time of war amounted to 7,000l. a year. This bill had emanated from the select committee of 1833, which recommended, that after the death of Sir John Nicholl, the future judges should be paid by a fixed salary, instead of by a salary 1108 and fees; and it would be rather hard to fix the salary to be received, both in peace and war, at the minimum amount received in time of peace. The amount received in time of peace was 3,000l., during war 7,000l., and it was now proposed to make the permanent salary 4,000l., which he thought perfectly reasonable.
§ Sir J. Graham
expressed his surprise that this bill had been so long delayed, and that it was now unaccompanied by a bill in reference to the ecclesiastical courts. The committee of 1833 having been appointed on a motion of his, he begged to say, that the inquiry extended to the Prerogative Court, the Court of Admiralty, the Court of Arches, the Consistory Court of London, the Consistory Courts generally throughout England and Wales. It was his decided intention, when he left office, to give effect to the recommendations of the committee, and to have introduced simultaneously two bills—one for the regulation of the Admiralty Court, and another for the regulation of the Ecclesiastical Courts. With regard to the question of salary, he begged to call the attention of the House to the evidence of Sir John Nicholl, who recommended that all fees should be paid into the consolidated fund; that the judges should be permanently appointed, and should receive fixed salaries of 3,000l. out of the same fund. Sir J. Nichol' was also of opinion, that it would be to the advantage of the public if, after a certain time of life, the judges were to be allowed to retire on a pension. Though he felt the importance of giving an ample remuneration to the Judge of the Admiralty Court, he thought it remained for her Majesty's Government to explain, why the evidence of Sir J. Nicholl should be set aside in the one particular of salary, and adopted in other points. Sir J. Nicholl expressed himself content with 3,000l. a year, and he wished to hear if any good reason could be assigned why 4,000l. a year should be given.
The Solicitor-general said,
this subject had already been very fully discussed. The proper test by which to try the question was, not that which was taken by the hon. Member for Coventry, the number of days on which the judge was obliged to hold sittings, but this—that a selection must be made, in order to get a competent person to fill the office; and if the selection was made from among persons who, by their practice, were making from 5,000l. to 7,000l. and 1109 upwards per annum, which they must give up to take this office, then the salary must be made worth their while. It was no answer to him to say, that the duties were not extensive. He believed the number of days on which the Admiralty Court sat was not very large. But this he knew, that the highest advocates in that court did not derive their only professional emolument from their practice there; and with regard to the learned individual who was more immediately concerned in this question, he not only was employed in every case of appeal before the House of Lords, but also in every case in the Prerogative Court, the Admiralty Court, and the other Courts of Doctors' Commons, besides having numerous cases submitted to him for opinion. It would be a miserable economy which would prevent the command of the most eminent services that could be obtained in this office.
§ Sir J. Graham
wished to ask her Majesty's Government, whether they contemplated bringing forward any measure, founded on the report of the Ecclesiastical Commission, with regard to Ecclesiastical Courts? And was it the intention of the Government, if they carried the present proposition, to propose 4,000l. a year for the judge of the Ecclesiastical Court?
§ Lord J. Russell
had no hesitation in answering the first question of the right hon. Baronet. The reports of the commission had by no means been lost sight of. But he understood that it was the opinion of the prelates of the church, that no measure on that subject could be proceeded with satisfactorily, and that they could not give their consent, until a measure was agreed to with respect to church discipline, one subject so much depends on the other. A bill on the subject had been under discussion in that House, but, far from meeting that general support which was expected, it had met with great opposition; and the other day only, a bill had come down to that House, which was very much objected to by many persons who were of high authority on the subject of church discipline. That was the reason why the question of the Ecclesiastical Courts was not pressed, it being understood that the heads of the church would give their decided opposition to such a measure, in the absence of a measure upon church discipline. But it was by no means the intention of the Government to drop all measures upon that subject, The right 1110 hon. Gentleman seemed to think, that the judge of the Ecclesiastical Court must have the same salary as that proposed for the judge of the Admiralty Court by the present bill. The opinion of Sir J. Nicholl was, that the judge of that court might have a salary of 3,000l. a-year. But what that salary should be would be very properly discussed when a bill on the subject was introduced, and there was no obligation on the House, because they had given the judge of the Admiralty Court 4,000l. a-year, to give the same salary to the judge of the Ecclesiastical Court. The only question was, whether or not it was better for this country to have the most eminent man in that branch of the legal profession at the head of the Admiralty Court; because, let it be observed, he was at the head of a great judicial department of the country. Puisne judges had 5,000l. a-year, but they were not heads of courts; there was a Lord Chief Justice of the Queen's Bench, a Chief Baron of the Exchequer, and a Chief Justice of the Court of Common Pleas, having not less than 8,000l. a-year. Was not the Admiralty Court an important branch of our judicial institutions? and if it was right that the judges of other courts should have high salaries, it was not less so with respect to the judge of this court, where grave questions were litigated—questions of international law—sometimes when the country was in a doubtful state of peace, and when nations were on the very eve of war, and at other times during war. It was, therefore, desirable, that the judge should be a person of the highest eminence; but a salary of 3,000l. a-year only was not likely to secure such a person, and the consequence would be, that the judge would have less authority and weight as to opinion, in the eyes of the public, than many advocates pleading before him.
§ Sir R. Peel
said, that he came down to the House fully of opinion, that a sum of 4,000l. was not too much for the salary of the judge of the High Court of Admiralty. But then he looked at the opinion of Sir John Nicholl. Now at first view it might be supposed, that the opinion of Sir John Nicholl must of necessity be favourable to a high amount of salary; but when he recollected the great delicacy of mind which distinguished that eminent man, he could not but say, that he thought the leaning of his opinion must rather be to underrate 1111 than to overrate the salary to which the judge of that court ought to be entitled: the great probability was, that he would shrink from recommending the full amount of salary. But whatever might be the opinion of Sir John Nicholl, of this there could be no doubt—that it would be a most miserable economy to do anything which should deprive the country of the benefit of the highest talent at the bar; and this was especially true in the case of a judge who was not only English but European—one whose duty it was to maintain the character of British law throughout the world. He admitted, that if he were in office he should give great weight to the authority of Sir John Nicholl, but as her Majesty's Government had proposed that sum which was more in accordance with his first view of the question, he should adhere to his original opinion, and give them his support on the present occasion.
§ Mr. Wakley
was not surprised to observe the right hon. Baronet taking her Majesty's Government under his protection. There had been a rumour afloat for some days, that the right hon. Baronet was on the point of setting off for his country residence. He (Mr. Wakley) sincerely wished, that that departure migh be as much expedited as possible, for he thought that Members of that House with whom he was in the habit of acting could manage Ministers much better in the absence of the right hon. Baronet than when he was present. The House had been told by the right hon. Baronet, that if he were in office he should propose to fix the salary of the judge of the Court of Admiralty at only 3,000l., but finding, that the Ministers were pressed, he came to their relief, and declared himself in favour of 4,000l.
§ Sir R. Peel
said, that he came down to the House entertaining a strong opinion in favour of a salary of 4,000l., that he had conferred with some Friends on the subject, and that he still remained of that opinion. The hon. Member for Finsbury advised him, finding Ministers placed in a situation of difficulty, to unite with the Radicals for the purpose of embarrassing the Government. He begged leave distinctly to state, that, without having the slightest confidence in the present Administration, whenever they adopted a course in conformity with the principles he espoused, he should support them rather than enter into any factious com- 1112 bination in order to place Ministers in a minority. Such a course he considered most consistent with the principles of honour, and the independence of a public man.
§ The Committee divided on the original question:—Ayes 80; Noes 35:—Majority 45.
|List of the AYES.|
|Adam, Admiral||Lascelles, hon. W. S.|
|Baring, F. T.||Lowther, J. H.|
|Barnard, E. G.||Maule, hon. F.|
|Blackburn, I.||Moneypenny, T. G.|
|Bowes, J.||Morpeth, Viscount|
|Bridgeman, H.||Norreys, Sir D. J.|
|Brownrigg, S.||O'Ferrall, R. M.|
|Buller, C.||Packe, C. W.|
|Burrell, Sir C.||Paget, F.|
|Callaghan, D.||Palmer, C. F.|
|Cayley, E. S.||Palmer, G.|
|Clements, Viscount||Parker, J.|
|Clerk, Sir G.||Pease, J.|
|Codrington, Admiral||Peel, right hon. Sir R.|
|Craig, W. G.||Pigot, D. R.|
|Dalmeny, Lord||Price, Sir R.|
|Divett, E.||Rice, right hon. T. S.|
|Donkin, Sir R. S.||Rolfe, Sir R. M.|
|Douglas, Sir C. E.||Russell, Lord J.|
|Elliot, hon. J. E.||Rutherfurd, rt. hn. A.|
|Filmer, Sir E.||Scholefield, J.|
|Fitzpatrick, J. W.||Seale, Sir J. H.|
|Fitzroy, Lord C.||Seymour, Lord|
|Freshfield, J. W.||Smith, J. A.|
|Gaskell, J. M.||Smith, R. V.|
|Gordon, R.||Somerville, Sir W. M.|
|Graham, rt. hn. Sir J.||Stanley, hon. E. J.|
|Grey, rt. hon. Sir G.||Stanley, hon. W, O.|
|Hastie, A.||Stock, Dr.|
|Hawes, B.||Surrey, Earl of|
|Hawkes, T.||Teignmouth, Lord|
|Hinde, J. H.||Thomson, rt. hn. C. P.|
|Hobhouse, right hon.||Troubridge, Sir E. T.|
|Sir J.||Ward, H. G.|
|Hobhouse, T. B.||Wood, Sir M.|
|Hodges, T. L.||Wood, Colonel T.|
|Hoskins, K.||Worsley, Lord|
|Howard, P. H.||Wyse, T.|
|Howick, Viscount||Yates, J. A.|
|Hutton, R.||Wood, C.|
|Inglis, Sir R. H.||Stuart, R.|
|List of the NOES.|
|Aglionby, H. A.||Gordon, hon. Captain|
|Attwood, T.||Hector, C. J.|
|Blair, J.||Hodgson, R.|
|Broadley, H.||Holmes, W.|
|Brotherton, J.||Hope, hon. C.|
|Cole, Viscount||Hume, J.|
|Currie, R.||Johnson, General|
|De Horsey, S. H.||Leader, J. T.|
|Duncombe, T.||Lowther, hon. Col.|
|Eaton, R. J.||Martin, J.|
|Fielden, J.||Morris, D.|
|Finch, F.||Norreys, Lord|
|Palmer, R.||Vigors, N. A.|
|Parker, R. T.||Waddington, H. S.|
|Philips, M.||Wakley, T.|
|Spry, Sir S. T.||TELLERS.|
|Thompson, Alderman||Williams, W.|
|Turner, W.||Wallace, R.|
§ Blank filled up with 4,000l., and clause ordered to stand part of the bill.
§ Mr. Hume moved a proviso to exclude the judge of the Admiralty Court from holding a seat in Parliament after the present Parliament. As his right hon. and learned Friend who now held that office had since his appointment been re-elected, he was willing to make the clause prospective.
§ Lord J. Russell,
thought on principle such exclusions were generally bad. They should have some strong peculiar case to justify them in excluding persons of great talent and eminence from the House of Commons. He certainly thought there were those peculiar reasons to justify the exclusion of the Metropolitan Commissioner of Police; but he should say, in general, adopting the proposition to exclude persons tilling the judicial office must tend to weaken the influence and impair the authority of the House of Commons. If they could, without objection, have persons sitting in that House eminent in talent and learning, their speeches must add to the public information, elevate the character of their debates, and even improve the decision they came to on particular questions. He saw no reason, for instance, why the Master of the Rolls should not be a Member of that as well as of the other House of Parliament. The judge of the Court of Admiralty was necessarily conversant with questions of great national importance; and it must be of advantage if he could attend in that House, and give them the assistance of his opinion, Several every eminent men there had been who had filled these situations, and yet had seats in that House. There was Sir William Grant, one of the most distinguished ornaments of Parliament, remarkable for the power and closeness of his reasonings, and for the great weight and authority with which he always argued questions of constitutional law in that House. There was also Lord Stowell, whose judgments had been referred to, and who always spoke with the greatest weight. Looking back to those times, he would ask, had it not been an advantage to the House 1114 that Sir W. Grant and Sir W. Scott had seats in it? The hon. Member for Kilkenny must also recollect that the inhabitants of the Tower Hamlets, or some other large constituency, might possibly feel disposed to elect a judicial officer for their representative, and if the proposition of the hon. Gentleman were agreed to, and extended to other judges, the choice of that constituency would be limited, and they would be told by act of Parliament that they would not be allowed to send as their representative to that House the person they deemed roost worthy of their confidence. Then came the question whether the character of the judge would suffer in public estimation by being a Member of that House. With respect to the two eminent persons be had mentioned, their characters had not suffered in the least degree from sitting in the House of Commons. Sir W. Grant and Sir W. Scott, it was well known, had fixed and strong opinions on political subjects, arid no one ever doubted the sincerity with which they held those opinions; but although they supported their opinions with much ability and energy, no one ever impugned their characters or questioned the rectitude and impartiality of their decisions. In his opinion, the proposition of the hon. Member would restrict the choice of the electors, and deprive that House of the commanding talents which had so often been productive of the greatest advantage to the House and to the country, and he should therefore vote against it.
§ Sir R. Peel
said, that although it might seem strange to the hon. Gentleman the Member for Finsbury, he intended to act precisely on this question as he had done on the one which the House had just disposed of. On the former question he had voted from the impressions which he had formed before coming down to that House, and he should vote coming his impressions on the present question, and those impressions were in favour of not allowing the Judge of the Admiralty Court to sit in Parliament. When the Metropolitan Police Bill was under consideration, he had voted against the chief officer of police sitting in that House, because he had considered that the duties of that office required the undivided attention of the individual who filled it, and because he thought that that officer ought not to take a prominent part in politics. He had come 1115 to the conclusion that it was better for the office that he who filled it should not sit in that House, and he had come to the same conclusion with respect to the office of Judge of the Admiralty Court. He did not think there was much force in the argument of the noble Lord opposite, that by adopting the proposition which had been submitted for their consideration they would limit the choice of the people in selecting their representatives. He could believe, if the Chief Justice of the Queen's Bench were a commoner, that many constituencies might feel desirous to return him to Parliament; but he did not think that it would be wise on that account to have that judge sitting in that House and taking an active part in their debates. The real question which they had to consider was, whether it was more likely they would secure respect for the judge, and the confidence of the public for his decisions, by excluding him from that House, or by permitting him to hold a seat, and to enter into the party contest and political excitement which prevailed. He thought to admit a judge to that House, and to place him in a situation where it was all but impossible that he should not lean to one party or another, could not tend to elevate his judicial character in the estimation of the public, and if such was really the case, then he thought it was wise to exclude the judges from that House. He was far from saying that the judge, because of holding a seat in that House, and from taking a part in political contests, would on that account give an unfair and partial decision on any case which might come before him; but he felt assured that it was impossible for the public to place implicit confidence in the judgments of those whom they saw constantly engaged in party warfare. With such impressions as to the judicial office, he would ask whether it would be any advantage to the character of the judge and whether it would tend to inspire confidence in the public, if that judge were to appear on the hustings before a popular constituency, and if he were to resort to those means for securing his election, which most men were obliged to have recourse to. In his opinion the Judge of the Admiralty Court had a European reputation, and that reputation would necessarily stand higher if he came before the public simply as a judge, than if he appeared as a political partisan. He did not deny that 1116 there was some force in the argument that it was advantageous for that House and for the public to have the judge of the Admiralty Court in the House, of whose opinions they might avail themselves. If, however, that judge was to take a part in their discussions, it would be difficult for him to argue strongly, to express his opinions freely, and to enter into all the excitement of debate without betraying his opinions on some point which might afterwards come before hint in his judicial capacity for decision. If he did not give his opinions freely, he would be of little value in that House; and if he expressed himself without reserve, he did not see how it would be possible, in the heat of the debate, not to give some information indicating what his decision would be if the point at issue should come before him as a judge. He, therefore, thought that whatever the advantage was which the House might derive from his opinions, that it would be more than counter-balanced by the evil which would result from stating an opinion as a Member of that House on a subject which he might afterwards have to decide on as a judge. He believed it was better for the efficiency of the office that the judge of the Court of Admiralty should not sit in that House, and he believed it better for the character of the judge that he should not appear on the hustings, and on these grounds he should vote for his exclusion.
would ask whether it was the intention to carry out the proposition of the hon. Member for Kilkenny? Were judicial officers generally to be excluded from that House? If they were, then would he direct attention to the Recorder of London, the chief criminal judge of the metropolis, and he would ask, was he to retain his seat? And the right hon. Gentleman the Recorder for Dublin, was he to be still allowed to sit in that House? Were all Recorders to be excluded? Were the Chairmen of Quarter Sessions to be prevented front becoming Members of Parliament? He begged to be informed in what the distinction consisted between the judges he had named and the judge of the Court of Admiralty. On the principle that their duties were incompatible with a seat in that House, the objection was as strong to those individuals as to the judge of the Admiralty Court. Where were they to stop? if all judges were to be excluded, 1117 then, he would say, take up the general question; but let them not take advantage of this bill to introduce an unfair distinction. Had they not all experienced the advantage of having an eminent civilian in that House? And if they excluded him now, they would then exclude information which was often essential to their debates.
§ Sir J. Graham
thought the hon. and learned Gentleman had been, indeed, pushed to an extremity, for there was certainly little analogy between Chairmen of Quarter Sessions and the Judge of the Court of Admiralty. He would beg the hon. and learned Gentleman to ask some of his Friends sitting on the Bench with him what course they had followed relative to the Chief Justice of Chester and the Welch Judges on a former occasion. Something also had been said about Masters in Chancery. Did the right hon. Gentleman the present Judge of the Admiralty Court recollect a motion which he had made, and the part he had taken in the discussion on that motion, relative to an Irish Master in Chancery—viz. Mr. Ellis? It was said that only the criminal judges ought to be excluded from that House, but the right hon. and learned Gentleman was himself one of the highest criminal judges in the country, when he sat as Judge at the Admiralty Sessions in the Old Bailey. As regarded recorders, it ought to be recollected that they were popularly elected, whereas the Judge of the Admiralty Court was appointed by the Crown. That was a distinction which was very material in the consideration of this question. Let the House consider what sort of cases came before the Judge of the Admiralty Court. In general they were cases relating to the property of shipowners, and the right hon. Gentleman in that House represented not only a numerous and populous constituency, but a constituency also which comprised the first shipowners in the kingdom. His duty was to adjudicate in matters in which ninny of his constituents were deeply interested, and though he had the most perfect confidence that no partial decision would be given, still such a position as the one he had described was not a position in which a judge ought to be placed. Unless they could show the gravest reasons why a judge should be placed in such a situation, he was clearly of opinion that he 1118 ought not to be thus subjected to the suspicions of the public, which could hardly be expected to place implicit confidence in his decision under such circumstances. It had already been decided that the judge of the Admiralty Court should have a seat in the Privy Council, and what were the cases on which in that capacity he would have to give his opinion? They were, many of them, cases relating to planters and to slave compensation, and such cases were not unfrequently brought under the consideration of the House. If they were so, the right hon. Gentleman, feeling strongly on those subjects, and entertaining conscientious opinions which he had never hesitated to make known, could hardly fail to express decided opinions, even on cases which might afterwards come before him as a Privy Councillor. He did not dispute the advantage of having an eminent civilian in that House; but let the House reflect what might be the results, if he were to express strong and decided opinions on questions which he might have afterwards to decide on as a judge. The question of peace or war often turned on the construction of treaties, and when such questions were before the House, it was almost impossible for one intimately acquainted with the subject to sit silent during the discussion; and he would be irresistibly tempted to enter the arena, and in a moment of excitement he might express an opinion decisive of the question. That opinion might, very probably, be different from what would have been given by the judge, calmly and deliberately weighing the matter in his own chamber. But the opinion expressed in that House might decide the question of peace or war, and he thought that no one would deny that hasty decisions on questions so important ought to be avoided. The right hon. and learned Gentleman had this Session brought forward a motion relative to the gum trade of France on the coast of Africa. That motion he had ably supported; but it was not unfair to suppose that if on that or on similar questions his constituents were deeply interested, he would be unable to avoid bringing it under the consideration of the House, and yielding, as others did, to the influence of his constituents; yet the decision on such questions might lead to the most serious results, and the high character and the great abilities of the right hon. 1119 Gentleman could hardly fail to have an important effect in influencing the opinions of the House. The Judge of the Admiralty Court on such questions would have an unfair advantage over the other Members; but although he might gain in reputation in that House, he would, in proportion, lose his character as a judge on the bench. The opinion of Sir John Nicholl on this question was against the Judge of the Admiralty Court sitting in Parliament, and the committee had also expressed a similar opinion. On the question as to the salary of the judge the committee had expressed no opinion, but on this question they had given a clearer opinion, and had recommended that the judge should be made incapable of holding a scat in Parliament.
would have been reluctant to express any opinion on this subject if the motion bad related to himself alone; but as such was not now the case, he should not hesitate to declare the opinion which he entertained. He had never entertained any doubt on the question; for the judgment which he had formed from the earliest moment that he had had the honour of a seat in Parliament was, that all disqualifications of Members of Parliament ought to be avoided. The only exception that he had ever admitted to that rule was in cases where, from the nature of the duties undertaken, it was impossible for the party undertaking them to discharge the duties of a Member of Parliament without violating those of his office. He thanked his right hon. Friend, the Member for Pembroke, for the allusion which he had made to the motion which he had proposed, and to the bill which he had introduced for disqualifying Mr. Ellis, a Master of Chancery in Ireland, from sitting in that House. He had founded that motion, not on the circumstance of Mr. Ellis being a judge, not on the ground that being a Master of Chancery he ought not to be a Member of Parliament, but on the simple fact that it appealed from papers laid on their tables to be impossible that he should be one of four Masters in Chancery in Ireland, and yet discharge his duties of Member of Parliament here. He recollected well the line of argument which he had taken upon that occasion from the circumstance of the late Mr. Tierney having told him, when he had concluded, that he had not expected such a train of reasons from him. He avowed, 1120 at that time, that he abhorred all disqualifications of Members of Parliament, no matter whether the disqualification was for being a commissioner of excise or a commissioner of customs, and that he hoped to live to see the day when in a reformed Parliament all such disqualifications would be swept away. Mr. Tierney smiled at his observation; but the real ground on which he justified his opinion was this—that where you can depend upon your constituencies there ought to be no disqualification save the inability of the party to discharge the duties of his office along with those of a Member of Parliament. He admitted that there was one exception even to this rule, and that was when a Member of Parliament accepted of an office which necessarily took him to a foreign country. That, however, was the only exception which he would admit. With respect to the proposition for excluding the Judge of the High Court of Admiralty from Parliament, he admitted that it was of little importance whether any single individual was excluded or not. All he contended for was the principle of non-exclusion. For he considered it to be of great importance that every constituency however numerous and independent it might be, should have the power of exercising a free selection, and that all the integrity, learning, and ability of the country should be at its choice and employment. It had been attempted to defend the exclusion now proposed by reference to the disqualification under which the judges of Westminster-hall laboured. Everybody knew that they could not sit in the House of Commons. Now, on what did that ancient disqualification of the judges rest? On this—that they were liable to be summoned to attend the House of Lords. They could not serve two masters; they could not be in the House of Commons when their duty to their constituents required their presence there, and, at the same time, in the House of Lords, when their presence was wanted to enlighten their Lordships. That, and that alone, was the ground of their disqualification. Now, let the Committee consider to what conclusion they must come, if it gave its sanction to the present motion. And here he would ask them to point out, if they could, any ground for excepting the Judge of the High Court of Admiralty from the principle which they applied to other judges who were 1121 now allowed to have seats in that House. Every objection that had been urged against permitting the Judge of the Court of Admiralty to sit in the House of Commons, applied with equal force against permitting the Master of the Rolls to sit there. First of all, let the Committee remark, that the Master of the Rolls presided in the Court of Privy Council, and that he was also a judge in appeals from the Court of Admiralty. Against him all the objections which had been urged against the Judge of Admiralty prevailed with equal force—for the suitors in his court, as well as those in the Court of Admiralty, might be among his constituents. But the Committee must not stop at the disqualification of the Master of the Rolls. They must also disqualify every member of the Judicial Committee of the Privy Council All persons who had filled high judicial offices were entitled, on retiring from those offices, to sit on that judicial committee; so that if hon. Members were prepared to carry out their own principles fully, they must exclude from the House of Commons not only all the present holders of high judicial offices, but also all the retired judges—not only of the Admiralty Court, but of every ecclesiastical court in the kingdom. If so, they must exclude from the House of Commons his most excellent and intelligent Friend, Sir Herbert Jenner, the judge of the Prerogative Court of London. But was that able and learned judge the only one whom they must exclude? No; his hon. and learned Friend (Mr. Vernon Harcourt) was the judge of the same ecclesiastical court in the province of York that Sir Herbert Jenner was judge of in the province of Canterbury. His hon. and learned Friend, however, was now Member for East Retforcl. Did the hon. Member for Kilkenny intend to exclude Mr. Harcourt too from the House of Commons? If so, let the hon. Member declare his intention at once, and introduce a general instead of a partial measure of exclusion for all judicial Members of the House of Commons. He declared, that if this proposition had merely affected himself personally, he should have been much inclined to preserve silence, but it affected high interests, and especially those of that branch of the profession to which he had the honour to belong. That branch of the profession might be a small one, but it was engaged in lofty pursuits of great importance to the intercourse of this country 1122 with the rest of the world. The members of it would feel this exclusion as a personal degradation. None of them, except the late Sir W. Scott, had ever entered the House of Lords; and if you shut against them the doors of the House of Commons, they would feel that you degraded not only them, but their profession too. It had been said, that, as fudge of the High Court of Admiralty, he might express in that House, on great national questions, opinions which might embarrass his judgment in his court, and that that circumstance might make him abandon occasionally the doctrines which he had propounded in the House; or that, if he stood by the interpretation of the law which he had given there, it might exercise an unfavourable influence upon his official judgments. Now, were hon. Gentlemen aware of what occurred in the High Court of Admiralty? If they would take the trouble of looking through the judgments of that eminent judge, Lord Stowell, he believed that they would find it difficult to point out among them a single case which had ever been discussed in that House; and he would tell the House why that was. The questions which came before the judge of the Court of Admiralty were principally questions touching the rights of neutrals in time of war. Now, the question of war was decided elsewhere than in the Court of Admiralty. He thanked his right hon. Friend, the Member for Pembroke, for the allusion which he had made that evening to a motion which he (Dr. Lushington) had introduced this very Session respecting the conduct of certain French cruisers on the coast of Africa. Undoubtedly, he had said, that France had in that quarter been guilty of a gross dereliction of friendly conduct towards England. But what harm was there in his having said that? By what possibility could he ever be called upon to discuss such a question in the High Court of Admiralty? Before such a question could ever arise there, it must have been decided elsewhere by the Government, and that decision would be in itself tantamount to a declaration of war. Hon. Gentlemen might not, perhaps, be aware, that until war is declared, no commission issues to the judge of the Court of Admiralty. That judge takes a new commission on the commencement of every war, and until that commission issued, he could not take cognizance of any such question as his right 1123 hon. Friend had supposed. It had been said, that he, representing a numerous constituency, consisting of a very opulent portion of the mercantile community of England, might be suspected—and he supposed, that he must thank the right hon. Member for Pembroke, for saying, that he would be suspected unjustly—of obstructing the pure course of justice when he had to decide as judge between parties who were both of them his constituents, but of whom one differed and the other agreed with him in political feeling. If such a notion were correct, the Committee ought to exclude from the House of Commons all persons who hold any sort of judicial office in the towns which they represent in Parliament. Act on that notion universally, and be would show them that there was not a single judicial officer that was not liable to the same objection. Take, for instanee, the case of his excellent friend, Sir Herbert Jenner. Suppose that he was a Member of the House of Commons. Might it not happen that he might sometimes be called upon to give judgment in a suit between two of his constituents for the recovery of large property bequeathed by will? Might not the same thing happen also to his hon. Friend, the Member for East Retford, who was Chancellor of the diocese of York? Might it not also happen to his hon. and learned Friend, the Member for Cardiff, who was also a judge—the judge, he believed, of the Court of Faculties? Let the committee also look at this question in a more important point of view, as affecting the safety and liberty of the subject. He would ask them to consider what would be the state of every recorder in the kingdom, supposing the principle contained in the amendment of the hon. Member for Kilkenny were this evening adopted by the committee? What would be the state of every recorder in the kingdom? What would be the state of the recorder of the City of London, who happened to be a Member of the House of Commons? In case of an indictment for forgery, where the prosecutor and the prisoner were both his constituents, in what a situation, according to the hon. Gentleman opposite, would he be placed? But they might, perhaps, tell him that the recorder of London was appointed by the people, and not, as the Judge of the High Court of Admiralty was appointed, by the Crown. On what ground did that dis- 1124 tinction stand acknowledged by the committee? He contended now, as he had always contended, that the right principle was, that whenever a Member of the House of Commons was appointed to a new office, he ought to vacate his seat. He ought to be sent to his constituents to give them an opportunity of deciding whether he had fulfilled his duty to them by accepting that office. He called upon the committee, if it intended to proceed with this disqualifying clause, to carry it out at once universally. It would never do to try it piecemeal, and to level it against particular individuals. If they thought it ought to be adopted in one case, it ought to be adopted in all, and they should bring in a general bill of disqualification, to comprise every similar office. Let it apply to the Master of the Rolls, and to the holders of other similar judicial offices. But would that be either just, wise, or politic? His noble Friend below him had alluded to the benefit which the House had derived from the presence of those two luminaries of the law Sir W. Grant and Lord Stowell, who were both judges, and both Members of the House of Commons, and had asked them to consider how much they would have lost had they deprived talent, ability, learning, experience, and integrity like theirs, of the privilege to sit in Parliament. He would ask them whether they could point out a single evil that had arisen, or a single violation of what was just, right, and expedient, that had been committed, in consequence of the eligibility of those two learned personages to a seat in that House? He was neither vain enough nor weak enough to place himself in comparison with those two learned judges; but he thought that he had a right to ask the committee whether they deemed it a legal matter to exclude from Parliament men of a lower grade of intellect, who were now filling the offices formerly held by those whose honoured names he had just mentioned. He implored the committee to pause before it gave its sanction to any such proposition as that which was then before it. It was not his own case that he was pleading—he was pleading the cause of his professional brethren, to whom he was bound by many strong ties. He would only repeat what he had said on a former occasion to Lord Althorp when it was proposed to exclude the judge of the Court of Admiralty from a 1125 seat in the House of Commons, that whatever might be his own feelings upon the subject, his regard for the profession to which he belonged would also prevent him from consenting to any measure which would disqualify his office.
§ Mr. C. Villiers
was opposed to this attempt to disqualify the judge of the Court of Admiralty from sitting in the House of Commons. The judges of Westminster-hall were not excluded from the privileges of legislating for their fellow countrymen; and at present two of them, who went the circuit, the Lord Chief Justice and the Lord Chief Baron, were Members of the House of Lords. He could not refrain from suspecting that there was something of caprice and of personal motive in this attempt to exclude the judge of the Court of Admiralty from that House. Why should the judicial and legislative functions be so completely kept apart? The House of Lords was at once a judicial and a legislative body. He contended that, by the mode of legislation now proposed, we were carrying the principle too far of withdrawing every judge from popular control. Was there no other control save that of the people to which the judges of the land were liable?
§ Mr. C. Buller
observed, that the argument against the sitting of judges in that House, applied equally to judges sitting in the other House of Parliament. It was but a few years back that a Peer, who was both a civil and a criminal judge, actually led one of the parties in the House of Lords. He protested against applying the principle to this House alone, when they allowed the House of Lords to be decorated by the highest judicial talent.
§ Mr. Hawes
remarked, that if the grounds stated by his right hon. and learned Friend (Dr. Lushington) for voting against exclusion were valid, then the House ought to repeal the clause which they passed the other day incapacitating the chief commissioner of the city police from holding 4 seat in Parliament. He thought that in all cases, legislative ought to be separated from judicial functions.
§ Lord J. Russell
considered that the principle of exclusion ought to be applied to all judicial officers, if it was applied to any. He did not think that it ought to be carried so far as to exclude the chairman of the quarter sessions; but if the judge of the Admiralty was to be declared incapable of holding a seat in any future 1126 Parliament, while the Recorder of London and the Recorder of Dublin were allowed to retain theirs, this would, he must say, be partial, he had almost sad party, legislation.
§ The Committee divided on Mr. Hume's proviso;—Ayes 51; Noes 61—Majority 10.
|List of the AYES.|
|A'Court, Captain||Hutt, W.|
|Blackurne, I||Inglis, Sir R. H.|
|Blair, J.||Johnson, General|
|Broadley, H.||Lascelles, hon. W. S.|
|Brownrigg, S.||Leader, J. T.|
|Burrell, Sir C.||Lowther, hon. Col.|
|Clerk, Sir G.||Lowther, J. H.|
|Cochrane, Sir T. J.||Norreys, Lord|
|Cole, Viscount||Parker, R. T.|
|Currie, R.||Peel, rt. hon. Sir R.|
|De Horsey, S. H.||Perceval, Colonel|
|Douglas, Sir C. E.||Philips, M.|
|Duncombe, T.||Sheppard, T.|
|Ewart, W.||Teignmouth, Lord|
|Fielden, J.||Thompson, Mr. Ald.|
|Gaskell, J. M.||Turner, W.|
|Gordon, hon. Capt.||Vigors, N. A.|
|Graham, rt. hn. Sir J.||Waddington, H. S.|
|Grimsditch, T.||Wakley, T.|
|Hawes, B.||Wallace, R.|
|Hawkes, T.||Warburton, H.|
|Hector, C. J.||Wilmot, Sir J. E.|
|Hinde, J. H.||Wood, Colonel T.|
|Hope, hon. C.||Hume, J.|
|Howard, P. H.||Williams, W.|
|List of the NOES.|
|Aglionby, H. A.||Howick, Lord|
|Attwood, T.||Hutton. R.|
|Baring, F. T.||Monypenny, T. G.|
|Bowes, J.||Morpeth, Viscount|
|Bridgeman, H.||Morris, D.|
|Brotherton, J.||Muskett, G. A.|
|Buller, C.||Norreys, Sir D. J.|
|Callaghan, D.||O'Brien, W. S.|
|Cayley, E. S.||O'Ferrall, R. M.|
|Clements, Lord||Paget, F.|
|Craig, W. G.||Palmerston, Viscount|
|Dalmeny, Lord||Parker, J.|
|Elliot, hon. J. E.||Pigot, D. R.|
|Filmer, Sir E.||Price, Sir R.|
|Fitzpatrick, J. W.||Rice, rt. hon. T. S.|
|Fitzroy, Lord C.||Rolfe, Sir R. M.|
|Freshfield, J. W.||Russell, Lord J.|
|Gisborne, T.||Rutherfurd, rt. hn. A.|
|Gordon, R.||Scholefield, J.|
|Grey, rt. hon. Sir G.||Seale, Sir J. H.|
|Hastie, A.||Seymour, Lord,|
|Hindley, C.||Somerville, Sir W. M.|
|Hobhouse, rt. hn. Sir J.||Stanley, hon. E. J.|
|Hobhouse, T. B.||Stanley, hon. W. O.|
|Hodges, T. L.||Steuart, R.|
|Hoskins, K.||Thompson, rt. hn. C. P.|
|Howard, Sir R.||Thornely, T.|
|Troubridge, Sir E. T.||Worsley, Lord|
|Villiers, hon. C. P.||Yates, J. A.|
|Ward, H. G.||TELLERS.|
|Wood, C.||Maule, F.|
|Wood, Sir M.||Adam, Admiral|
§ Original clause agreed to.
§ Clause 2 having been proposed, granting power to the Crown to raise the salary of the registrar from 1,400l. to 2,000l. in time of war, or other extraordinary circumstances, causing a great increase of business,
§ The committee divided:—Ayes 75; Noes 5—Majority 70.
|List of the NOES.|
|Ewart, W.||Wakley, T.|
|Hector, C. J.||Hume, J.|
|Vigors, N. A.||Williams, W.|
§ We think it enough to give the Noes.
§ Clause agreed to.
§ On Clause 5, empowering her Majesty to grant a retiring pension of 2,000l. to the judge,
§ The Committee again divided:—Ayes 68; Noes 3—Majority 65.
§ We give the Noes.
|List of the NOES.|
|Hume, J.||Williams, W.|
|Wakley, T.||Hector, C. J.|
§ Clause agreed to.
§ On the question that it be added to the bill,
§ Sir R. Inglis opposed it.
§ The Committee divided:—Ayes 67; Noes 0—Majority 67.
§ The Tellers for the Noes were Sir R. H. Inglis and Colonel Perceval.
§ Clause added.
§ House resumed.