§ On the motion of the Earl of Falmouth, the House resolved itself into a Committee on the Stannaries Bill.
§ On the 1st Clause,
§ Lord Langdalesaid, that much opposition had been raised against the exercise of the jurisdiction now possessed by the Stannary Courts, on account of the alleged inconvenience and confusion which arose from their decisions; but still it was found that this species of jurisdiction was so valuable and so useful, that it was deemed right to establish a local court on a more extended scale. Now, he had no objection to the establishment of a local court in the county of Cornwall, for the decision of questions connected with mining concerns. If such a court were surrounded by proper safeguards, he conceived that its operation would be extremely valuable. He felt, however, considerable doubts as to whether the Bill before their Lordships was calculated to produce such a beneficial effect. He felt not a little hesitation in suffering the Bill to proceed through the second reading without observation. He did not think that it contained the necessary safeguards and precautions which ought to surround a measure the object of which was to establish a local court of a peculiar description. They ought to consider what provision was made for the judge, and what the situation of the judge would be under this Bill. The judge ought certainly to be placed in such a situation as would enable him to perform his duty fairly and impartially. What, he would ask, was the law to be administered? It was not the common law of England, but the custom of the stannaries. What those laws or customs of the stannaries were, it was extremely difficult to discover. They could not accurately ascertain what they were; and yet they were called on to pass a Bill for the administration of a species of law that was not known or perfectly understood. He next came to consider what was the situation of the judge. He was to be appointed, under this Bill, by the Duke of Cornwall, if there happened to be one; otherwise, by 1217 the King. He was to hold office during good behaviour; and he was removable from office by the Duke of Cornwall, on the requisition of five councillors of the Duchy of Cornwall. The judge, it appeared, was to try matters in which the interests of the Duke of Cornwall might be deeply implicated, and yet he was removable on the application of those officers. He did not think, that such a provision as this was calculated properly to secure the independence of the judge. He now wished to look a little at the history of this Bill. It originated with persons who were greatly interested in the mines of Cornwall; and as the judge was to adjudicate on matters that so nearly concerned them, it was agreed that one-half of the judge's salary should be paid out of the revenues of the dukedom, and the other half by those who more immediately promoted this measure. Every manager of a mine was to keep an account of the minerals raised; and one-fourth of the full value of what was obtained was to be paid over to meet, in part, the salary of the judge. A return of the quantity raised was to be made to the registrar of this court, from time to time; and if the individual did not make that return correctly, he was to be subjected to a penalty, to be recovered before the judge. Thus the judge was to sit trying causes, the object of which was to secure funds to meet the expenses of his own office. This, he thought, was a situation in which a judge ought not to be placed. Then the right of appeal was most defective. The appeal lay from the steward to the vice-warden, from the vice-warden to the lord warden, and from the lord warden to the Duke of Cornwall, if there were one, assisted by a certain number of councillors. He contended that there ought to be a proper appeal—an appeal either to the King in Council or to that House.
§ The Lord Chancellorsaid, that was not the time to consider the principle of the Bill, which had already been conceded. He did not object to several of the observations which had fallen from his noble and learned Friend; and, in fact, he had marked on the margin of the Bill some points which he conceived ought to be amended.
§ Lord Wynfordsaid, that cases of great importance, involving property to the amount of hundreds of thousands of pounds, were likely to come under this 1218 court for consideration; therefore, the measure ought to be maturely weighed before it was carried into effect. He thought that the Bill should be postponed till next Session, in order that it might be properly considered.
The Earl of Falmouthsaid, that this Bill had already undergone long and serious consideration. It had been submitted to the Magistrates of Cornwall, and also to the principal officers of the duchy, by whom it had been carefully examined. After having received various important alterations elsewhere, it now came up to their Lordships in its present state. The Bill originated with a number of individuals of very great influence in the county of Cornwall, who had devoted many months to its consideration. They felt no desire to serve any particular body; but. looked to the welfare, not merely of the mining interest, but of the landed interest, and the trading interest. They wished, in fact, to constitute a court that would be beneficial to the public in general. If they looked to the north or to the south, to Devon, or elsewhere, they would find, that where mines were wrought, local courts were established. Indeed, a noble Friend reminded him, that if they went abroad, they would find no part of the world in which minerals were sought after that did not possess its local court.
§ The 1st Clause was agreed to.
§ On the 2d Clause, relating to the appointment and removal of the vice-warden,
§ Lord Wynford moved an amendment, to the effect that the vice-warden could not be removed except by the certificate of the Barons of the Exchequer, that he had done some act to justify his removal. He contended that it was an anomaly, and inconsistent with that independence which a judge should possess, that his removal from office should depend on the will of that party who might be said to have an interest in most of the causes which came before him.
§ The Lord Chancellordid not object to the principle, that a judge should not be removable at the pleasure of those who appointed him; but he thought it would be better to have the same rule apply in this case as in that of the judges of the courts in Westminster Hall—namely, that their removal could take place only by address of both Houses to the Crown.
§ Lord Wynfordwould not object to that 1219 course, and was willing to shape his amendment accordingly.
Lord Hollandsaid, that there were difficulties in this case which ought not to be overlooked. The Duchy of Cornwall was now in the possession of the Crown, but suppose it should be held distinctly from the Crown, it would then be the private estate for the time being of the party holding it, to which were attached certain jurisdictions and privileges. Would their Lordships now interfere with those privileges, and say, that the Duke of Cornwall at a future period should not appoint or remove his own judicial officers? He thought it better to let the matter stand as it now was in the Bill.
§ Lord Langdalethought the least difficult way to settle the point would be to leave the removal in the hands of the Crown, on an address of the two Houses of Parliament.
§ Amendment negatived.
§ Clause agreed to.
§ On the 5th Clause, which gave an appeal from the vice warden to the lord warden, assisted by some of the judicial Lords of the Privy Council,
§ Lord Langdaleproposed an amendment to add these words:—"subject to an appeal to the Lords Spiritual and Temporal."
§ The Lord Chancellorthought that would be hard on some of the suitors in small cases, though in important cases, such an appeal might be necessary.
The Earl of Falmouththought it would be a hardship, for there would then be an appeal in almost every case. He would suggest that the appeal should be to the lord warden, assisted by a Baron of the Exchequer. He would prefer one appeal.
§ Lord Langdalewould also prefer one appeal; but he did not approve of the one proposed.
§ Amendment carried, and clause agreed to.
§ On Clause 7,
§ Lord Wynfordproposed, that in trials in any of the Courts under this Bill there should be power to move for a new trial, as in the courts at Westminster, and that the application for such new trial should be made to the vice warden, or to one of the Courts at Westminster, and that, if necessary, the new trial should take place in the neighbouring county of Devon.
§ The Lord Chancellorsubmitted, that the Stannaries Courts were wholly inde- 1220 pendent as to their jurisdiction, and he must object to the amendment affording the right of an application for new trials to any of the Courts of Westminster Hall. The application ought to be made, in the first instance, to the vice warden; and if he should refuse the motion, his decision could be questioned by appeal in the same manner as any other order he might pronounce.
§ Lord Wynfordsaid, that as this Bill did not give a writ of error, he was only anxious to provide for the correction of mistakes arising either on questions of fact, on the misdirection of the learned judge at Nisi Prius, or from verdicts against evidence—in a word, that the judgments of these courts should be examinable. He should be quite content provided there was secured to parties a means of control over the judgments, if erroneous, of the courts below.
§ The Lord Chancellorwould, on the Report, secure this by giving an appeal from a judgment at Nisi Prius, in the same manner as from any other order of the vice warden. He had no objection to include in his amendment the provision proposed, by which a cause might be sent for trial to the adjoining county.
§ Clause agreed to.
§ On Clause 36,
§ Lord Lyndhurst moved an amendment to the effect, that the learned counsel whom it was understood was to be appointed to the office of vice warden should be permitted to practise as a Barrister for three years from and after the passing of the Act except within or in cases connected with the county of Cornwall. He was induced to make this proposition, inasmuch as the court over which he was to preside was a mere experiment, and as everybody knew that no professional man having left the Bar, could return to it except under great loss and disadvantage. By his being permitted to remain at the Bar, he would continue to mix with his professional brethren, whom he would be enabled with great public advantage, to consult on cases of difficulty, and in the arrangement of the business of his court.
The Earl of Falmouthobjected to the alteration proposed by the noble and learned Lord. The arrangement had been made, and the salary of the vice warden had been increased to the amount stated in the Bill, on the ground that he should cease to practise at the Bar, and should 1221 give his whole time and attention to the business of the county. The proposition of the noble and learned Lord had not even been suggested in the Commons, and he contended, that after a salary had been secured, on the arrangement of the learned gentleman's ceasing to practise at the Bar, it was too much now to interfere with that arrangement in the manner proposed.
§ Lord Lyndhurstsaid, he had authority for stating, that at the very time it was proposed to raise the salary from 1,000l. to 1,500l. on consideration of his not continuing to practise, the learned Gentleman who had been appointed, objected and said, during the three years he might be permitted to practise he should consider himself only entitled to the salary of 1,000l. per annum; and if at the end of three years he should not be allowed to continue to practise, that then he should expect the increased salary of 1,500l. per annum.
§ Lord Wynfordremarked, that the learned gentleman who had been appointed to the office of vice-warden was a gentleman of great eminence at the bar. He did not doubt but many gentlemen at the bar might be found who would be ready to take the appointment on other terms, but he was satisfied no person of eminence would do so. He agreed with his noble and learned Friend near him that the Bill was an experiment, and on those grounds supported the amendment.
§ Lord Langdalesaid, that if the Bill was to be a mere experiment, a clause ought to be introduced to restrict its operation for a period in which that experiment could fairly be tried, instead of appointing a judge with power to continue to practise at the bar for three years, thus allowing him an opportunity of choosing which of the two lines of life best suited his habits. For the experiment, even the judge ought to devote his whole heart and soul to the business, and if the Bill was to be permanent, his whole time and attention ought to be applied to it. To a limitation of the term of the Bill he should not object, though he must strenuously oppose the proposition for the Judge being allowed to continue to practise at the bar.
§ Lord Lyndhurstobserved, that as it was not at present known what was the extent of business to be disposed of by this court, the Bill was a mere experiment, and no valid objection to his alteration of the clause had been even suggested.
§ Amendment negatived, and the clause ordered to stand part of the Bill.
§ Remaining clauses agreed to. The House resumed, Bill reported with amendments.