§ The Lord Chancellorrose to state to their Lordships the nature and objects of this bill, and he would assure them, that he should trespass as shortly as possible on their time. The Admiralty Court was one of great 235 importance. The duties of the Judge of the Court of Admiralty were very important in time of war, but he had also very important duties to perform in time of peace. The amount of business done in time of peace was comparatively light, but the importance of the duty was, nevertheless, very great, and the judge who was called upon to perform that duty ought also to be capable of discharging the duties which would be imposed upon the court in the event of a war breaking out. The character which our Admiralty Court had obtained, not only in this country, but in other parts of the world, was well known to their Lordships. The judicial seat in that court had been filled by men of great learning and distinguished ability, and it was of great importance that its character should be maintained. That could only be done by placing men of the greatest talent and character at the head of that court. He would now state to their Lordships how that court was constituted, in respect to its most important officers. There was a judge, a registrar, and a marshal. The income of the judge was, in former times, entirely dependent on the amount of fees received. Gradually, however, additions were made to it, by way of permanent income, and the permanent income of the judge was at present 2,500l. It appeared from the evidence of the late Sir John Nicholl, that the income of Sir W. Scott, in time of war, was for a series of years 5,700l. a-year, and for another series of years, 5,300l. Now, the bill before their Lordships proposed to abolish all fees, and to give the judge a permanent fixed salary of 4,000l. -a-year, which was less than the salaries received by the puisne judges. It was desirable also that the registrar should have a suitable income. In time of war, his income had amounted to 12,000l. a-year, while in time of peace it had been as little as 100l. Now, it could not be right or conducive to the public service, that an officer of the court should be paid so extravagantly in time of war, and be left without any income at all in time of peace. The bill, therefore, proposed, that the registrar should have a certain income of 1,200l. a-year, in time of peace, and that the Government should have the power, on the application of the Court of Admiralty, to increase his salary in time of war, to 2,000l. a-year. Then there was the marshal, who was the executive officer of the court; the bill pro- 236 posed, that he should have a salary of 800l. a-year, in time of peace, and in time of war, 1,200l. The bill, however, had other important objects. It was proposed to add to the jurisdiction, and to improve the machinery, of the court, in order to enable it to perform its duties with more effect. There were some cases in which the court had a jurisdiction, but only to a limited extent. Thus it had jurisdiction over the possession of vessels as between the owner and the captain, but although it was in some cases necessary to sell the vessel in consequence of the claims upon it, it was not in the power of the Court of Admiralty to effect a sale. The same difficulty existed with respect to mortgages on ships. Then, again, there was the same question as to seaman's wages. This was a part of the bill, which, he thought, must receive their Lordships' approbation. Another part of the bill was to improve the means by which the Court of Admiralty had to carry its jurisdiction into effect—he meant that part of the bill which related to the examination of witnesses. But before he touched upon this part of the subject, he would refer to the jurisdiction of the Court of Admiralty when a question of prize came before it—namely, when it had to adjudicate upon the disposition of enemies' property taken at sea; this was undoubtedly, within its jurisdiction. But when a question of booty arose—namely, when the property was captured on land —the Court of Admiralty had no jurisdiction. If the property was taken in the course of the joint operations of an army and navy, then the Court of Admiralty had jurisdiction over both; but over questions of booty, it had no jurisdiction. Anciently these questions were determined by the Court of Chivalry; but that court having been abolished, they fell under the cognizance of the Treasury, from which it was now proposed to transfer them to the Admiralty Court. With regard to the machinery by which it was proposed to improve the working of the court, it was intended to give the court the power of examining witnesses vivâ voce, and also power to direct the trial of an issue, in the same manner as courts of equity. He had now gone over all the points in the bill which were of material importance, and he hoped their Lordships would allow the bill to go into committee.
§ Lord Lyndhurstwould detain their 237 Lordships but a very few moments on the subject of this bill. He agreed entirely with his noble and learned Friend in thinking that the subject was one of very great importance, and he thought, that that statement of his noble and learned Friend was sufficient to show, that it was not fit that this bill should be discussed at this period of the Session; and he believed, indeed, that he should be able to satisfy their Lordships that the persons who had introduced the bill were themselves of opinion, that it ought not to be pressed or urged forward at present. The bill was founded on a report of a Committee of the House of Commons made six years ago, and nothing had been done upon it from that time to the present; but year after year had been suffered to elapse, and then, after all, the promoters of the bill had only brought it forward at a late period of the Session. The bill was committed in the House of Commons on the 15th of July, and it did not come up to their Lordships' House till the 6th of this present August. He would ask their Lordships, then, whether this bill ought to be discussed at this period of the Session, and above all, whether it ought to be discussed in the absence of the noble and learned Lords, who were at the head of the law? But, moreover, this bill was founded not only on the report of the committee, but upon the evidence on which that report was founded, and he defied any of their Lordships to vote for the bill after having read that report and evidence. Besides, this bill proposed greatly to extend the jurisdiction of the Court of Admiralty. His noble and learned Friend said, that it was very desirable to give the Court of Admiralty an extended jurisdiction over the subject of seamen's wages, when secured by contract under seal. Now, against that he protested on account of the great expense of the proceedings in the Admiralty Court. Nothing could be more simple, on the other hand, than the trial of a question of this kind by a jury in the common law courts. He would cite, as an instance of the expense of Admiralty proceedings, the case of the Lima. The mate of that vessel thought proper to bring an action in the Court of Admiralty against the master for wages. The claim which amounted to 70l., was resisted on the ground of misconduct, and the master had a judgment in hit favour. What was 238 the consequence? The master, although, victorious, had to pay 180l. in consequence of the in competency of the mate to pay the costs. But the matter did not end here. The other party thought proper to appeal, and although he was defeated on appeal, yet the master had to pay costs amounting to upwards of 390l. Now, these were facts which were incontrovertible. Yet the noble and learned Lord said it was extremely desirable that contracts of such a nature should be decided by the Court of Admiralty, where the proceeding was most expensive, instead of by the courts of common law. If this provision was adopted, what would happen? Every seaman, getting into the hands of a proctor, would institute proceedings in the Admiralty Court, because it would be well known, that the defendant would be afraid to resist on account of the expense, and that he would therefore submit to the demand made upon him. He mentioned this circumstance for the purpose of showing their Lordships, that a bill involving so many points for consideration ought not to have been delayed until the 13th of August, and then brought forward, in the absence of those noble and learned Lords who presided over the courts of law. For these reasons, he objected to proceeding with the bill at the present moment. He did not object to the proposed increase of salary to the learned judge. He thought it was proper that that judge should have a fixed salary, and, in his opinion the proposed was not more than an adequate remuneration for a person holding that high situation. But this was a point which, with the others involved in the bill, could he very well considered next year, when the bill might be brought forward in their Lordships' House. At the same time, the learned individual who presided over the Admiralty Court need not suffer by the rejection of the bill, as a vote for the amount of the salary might be passed by the other House, or the future bill might be made retrospective in this respect. He moved, that the bill be committed that day three months.
Lord Broughamhad repeatedly urged his noble and learned Friend on the Woolsack to bring forward some measure on this subject, for the purpose of taking the payment of the salary of the judge of the Admiralty Court out of the navy estimates. But he thought that a bill on this subject should be accompanied with ano- 239 ther provision, which appeared to him to be absolutely necessary, namely, that this judge should not hold a seat in Parliament. If the judge was to be paid by a regular salary, and ought to be independent of the Crown, he should on the other hand, be removed from political life, and not placed in a situation to be influenced by political feelings. [Lord Lyndhurst: That was recommended in the report of the commissioners.] He was aware that it was recommended in the report, and he was sure that his noble and learned Friend On the Woolsack must be of the same opinion. He did not object to the proposed salary of 4,000l. a-year; but it should be recollected that this 4,000l. a-year was for little more than twenty-eight days' work, for that was the period during which the court sat, and this was certainly very adequate remuneration for an office which was little more than a sinecure. His noble and learned Friend had stated that this was less than the salary of a puisne judge, but then the duties of the latter were very different. He might be told that they might look forward to a state of war, when the duties of the judge of the Admiralty would be greatly increased. Now, he had no expectation of seeing a war while he lived, at any rate, he sincerely trusted that he should not again see a war. He, however, would consent to this salary of 4,000l. a-year, but when the comparison was made between the duties of the judge of the Admiralty Court and the puisne judges, he would remind their Lordships that the latter sat ten months in the year, while the Admiralty Court hardly sat a lunar month. This made all the difference, for if this bill passed, it would enable this judge, as a political partisan, to work double tides for the political party with which he was connected. He believed that a more zealous, active, or able partisan, and a more useful supporter to the Treasury, did not exist, than his distinguished and learned Friend who was now judge of the Admiralty Court. He might then work as long as his services were required, and as actively as possible as a member of the political party to which he belonged, and might again take the lead in coming up to search their Lordships' journals to see what they were doing with some particular measure. But it should also be remembered, that he was the only judge to decide on the matters involved in 240 that bill to which he had just adverted, as he alone had to determine on the delicate points of the law of nations; he, therefore, could not help feeling that his right hon. and learned Friend should not have taken quite such an active part in passing that bill. The Portuguese would certainly take this view of the subject; and, if their Lordships had enacted that bill, they would have complained that the most active partisan in support of it was the judge who would have to decide on all cases under it. He remembered two previous judges of the Admiralty Court who sat in the other House, Sir William Scott, and Sir John Nicholl; but both these learned judges were Members of the University of Oxford, and this was a very different thing from being Members of the Tower Hamlets; for in nearly every case that would come into his court it would be found that at least one of his learned Friend's constituents was mixed up in it, either as plaintiff or defendant, or as promoter or respondent, as the parties to a suit were called in the Admiralty Court. He would then be one day on the hustings of the Tower Hamlets, and the next day sitting in the Admiralty Court, deciding on some case involving the interests of his constituents. No man would assert that it was right that any one in such a situation should be appointed judge of this court. Again, it was now almost universally admitted, that judges should not have the disposa of patronage; but under this bill the judge had patronage to the extent of at least half a dozen places of emolument, and he was enabled to name whom he pleased to them. In the first place, he might appoint a registrar to he Court of Admiralty, with a salary of 2,000l. a-year in time of war, and 1,400l. a-year in time of peace. There then was also the office of deputy-registrar, with a large salary. There was also the marshal of the court, with a great salary, together with the clerk and assistants, all with large salaries, and all these appointments were to be placed at the disposal of the judge of the Admiralty Court. In past ages, no doubt, a great extent of patronage was given to judges, but more enlightened ages took it away. Formerly, they paid some of the judges small salaries, and they allowed them the patronage of certain offices attached to these courts, and they were even allowed to dispose of them, in certain cases; but this system had been 241 changed, and his noble Friend opposite, (the Earl of Ripon), when Chancellor of the Exchequer, had brought forward a measure to take away the patronage from the judges, and to give them increased salaries. This bill, however, gave more patronage to the judge of this court than any judge had ever before possessed. By this bill, also, the judge had power of making rules for the practice of his court, without the approbation or consent of any other judge. What was this, but that the judge of the Admiralty Court, himself a Member of the Legislature, was, under the name of rules, to have the power of making laws for the practice of the court? It happened that nearly half the decisions of the judges of the courts of law were on points of practice, and sometimes the most important matters were involved in them. Indeed, a most valuable book in the profession, which was contained in three thick volumes—he alluded to Mr. Tidd's work—was on practice alone. In all these cases, in the courts of law, a rule of practice was made after deliberation and consultation with other judges; but, by this bill, the judge of the Admiralty Court might make rules without consulting any person, but ex mero motu. It would have been better if it were directed that these rules, before being brought into operation, should be laid for a certain period before both Houses of Parliament, and, if either House disapproved of them that they should be rescinded. Under this bill, however, they were to be conclusive immediately on their being issued by the judge. This was very different from what he thought would have emanated from the recommendations of the commissioners. He, therefore, thought, on the grounds that he had stated, that it would be better to postpone the bill to another Session. He had asked for a measure on the subject from the first week in the Session, and now it had come up to them in this objectionable and imperfect form in the last week, as he trusted that it would be, of the Session. If noble Lords thought that they could in committee make something of this bill, that would be satisfactory. He had no objection to their trying, but he was by no means sanguine of this, and, therefore, felt disposed to support the amendment of his noble and learned Friend.
§ Lord Lyndhurstobserved, that it was a remarkable fact, that the learned person who was now judge at the Admiralty Court 242 was examined before the commissioners; and he described the judge of this court as being somewhat a political judge, and to make him therefore a party judge was really monstrous.
§ Lord Wynfordfelt the strongest possible objections to this bill, as it would enable the judge of this court to alter nearly the whole mercantile law of the country. If the bill passed, a great many causes would be taken from the Courts of Common Law into the Court of Admiralty. He did not think that that court was so constituted that it should decide on matters of this kind. He agreed in many of the objections that had been urged to this bill by his two noble and learned Friends, and he, therefore, thought that the best course to pursue was to send the bill to a committee up-stairs early next Session, when the whole bearing of its details could be considered. It would be a mere mockery to pass the bill in its present shape.
§ Viscount Melbournesaid, that unquestionably there might be some grounds for the objections that had been urged against this bill, but he thought that his noble and learned Friend must himself have been surprised at some of the objections, that had been urged by noble Lords opposite, and, in fact, he seemed towards the end of his speech to be ashamed of some that had been put forward, and at the opposition that had been got up to this measure, for he said if the bill could be made something of they might as well try it. His noble and learned Friend had for half the Session reproached the Government for allowing the old system of paying the judge of the Court of Admiralty to continue, and had repeatedly dwelt on the shame and scandal of paying a judge by an annual vote of the other House, and had urged that the present state of things should not remain any longer; but now, when the means were before their Lordships of getting rid of this ground of complaint, his noble and learned Friend found out that it was too late in the Session to go on with the bill. His noble and learned Friend had objected to the passing of this bill, because it conferred patronage on the judge of the Admiralty Court. From one who had never had the enjoyment of patronage in the disposal of place as a judge, this might appear to be very sound in principle. But if it was such an objectionable and difficult talk, 243 how he pitied his noble and learned Friend at the very painful situation in which he was placed when he was sitting as a judge on the Woolsack, for he had the largest patronage that could possibly fall to the disposal of any subject. Then, again, his noble and learned Friend objected to the judge of the Admiralty Court having the power to make rules for the practice of the court over which he presided, but all judges did so in their several courts ["No."] Did they not? He spoke from no practical knowledge of the subject, but he believed that all judges had that power. His hon. and learned Friend said, that he never would consent to a measure by which the judge of the Court of Admiralty would be enabled to sit in the House of Commons. The noble and learned Lord opposite only seemed lately inclined to adopt the same opinion; but, for his own part, he thought that it would be very objectionable to adopt the principle of excluding the judge of the Admiralty Court from the House of Commons, That high functionary had always been enabled to sit there, and his situation and position in the country might, in certain matters give very important weight and authority to the opinion or decisions of the House of Commons, which noble Lords might think was much wanting at the present time, and which it would certainly not be wise or prudent to lessen or diminish. This learned judge must be conversant with the Jaw of nations, and with the laws of other countries, and, therefore, his presence might be of peculiar service in regard to the decisions of the other House. He believed, that the opinion was as novel that the judge should not have the disposal of patronage, as that the judge of this court should not be a Member of the other House. He believed that the reason why the common law judges were excluded from seats in the other House was, because they were constituent Members of that House. He would not take any step to enable judges to be elected representatives in the other House, but he would not carry the exclusion that existed at present further. The exclusion of able and learned men from such offices, because they were Members of the other House, and because they represented large constituencies, was a conclusion not very complimentary to the people or the constituency of this country. His noble and learned Friend seemed to say, if the present judge of the 244 Admiralty represented a narrow constituency, it would not be so objectionable, but because he had been entrusted with the confidence of a very considerable body of his fellow citizens, and had been sent as their representative to the other House, he should not be allowed to continue there. Then it was objected, that in his situation on the hustings he might be induced to say unfair things, and to lend himself to popular views and acts and feelings, and that this unfitted him for the due discharge of the high functions of his important office; but he could not help feeling, that this was not a very great compliment to the representative system, or to the form of government under which we lived. It was also said that, in consequence of the high sanctity of the office of a judge, that it should be guarded by peculiar purity; but, at the same time, were they to be told that this peculiar purity, and honour, and integrity was only required in a judge? Other situations required high honour and integrity and character as well as this, and if the representative of a large constituency was unfit for the judicial office, how unfit he roust equally be for other appointments of trust? If the principle was admitted, it was a heavy blow at representative government, for it was acknowledging and admitting that those who were elected by the people as their representatives were unfit for offices of trust. It was one of the most dangerous admissions that he had recently heard that those who were so elected and chosen by large bodies of their fellow-citizens were unfit for the service of the Crown. This was one of the most objectionable and dangerous doctrines that could be uttered in that House. Therefore, in conformity with the constitution of the country, and with the constitution of the House of Commons, he felt satisfied that this judicial officer should now be enabled to sit there, as his predecessors did, and that he should not for the future be excluded from the position, and deprived of the power of serving his country in the way in which he could do it with the greatest weight, and in which ha could afford the greatest assistance to the councils of his country. In conclusion, he approved of the main principles of the bill, and notwithstanding the opposition that it had met with, he believed all would agree in them ultimately, and particularly as to the payment of the judge's salary 245 and the other great principles of the bill, but whether their Lordships were willing to adopt, or not adopt it now, he could not state.
Lord Broughamentertained, as he had before stated, the strongest objections to many of the details of this bill. As for being guilty of the slightest inconsistency in asking for this bill and now objecting to it, it was not more than if he had asked his noble and learned Friend for bread, and his noble and learned Friend had given him a stone. He had asked for a particular bill, and another, altogether different from what he had expected, was presented to him. Was it not a shame to expect him to eat a stone? If they had given him the bread he had asked for he would have eaten it; but with a portion of the bread they had given him two large flint pebbles, and his noble and learned Friend expected him to swallow them also. He would not attempt to do anything of the kind. The authors of this bill had given him two principles which he could not digest under any circumstances. His noble Friend had stated, that he had repeatedly asked for this bill. He did not deny that he had long urged his noble Friend to bring forward a measure on the subject, and the matter would have been settled, if it had been brought forward at an earlier period of the Session. His noble Friend seemed to think, that he had gained a great triumph in charging him with having administered, in the opinions that he had put forth, a heavy blow, and a great discouragement, to the representative system; but his noble Friend's observations applied to some office bearers, which was very different from the distributors and administrators of justice, who were undoubtedly appointed by the Crown, but they were irremovable. He cared not whether it was a heavy blow, a discouragement, or not, as he felt convinced that it was not a right source from which to take a judge, and that you should not allow him to be one day seated on the bench, and the next to make his appearance on the hustings. The sort of conduct which a popular constituency naturally expected was not becoming in any judge. He might be told, that the Master of the Rolls might also sit in Parliament, and that his noble Friend did so when he held that situation. He was rather surprised that his noble Friend-had not made an argumentum ad hominem on 246 this point, but he admitted the objection existed in this case. He recollected that he once had a conversation with one of the most acute and able men that the world had produced—he meant the late Mr. Fox, on the subject of-the learned and distinguished father of his noble Friend opposite (Lord Ellenborough) having a seat in the Cabinet, while holding the office of Lord Chief Justice. Mr. Fox stated, that he could give a dozen instances to justify the proceeding, and supported it with powerful argument, and concluded with doing him the honour of asking him what he thought of the matter, and he replied, that he was not convinced, notwithstanding the exertions made to justify the course then taken. The arguments used convinced neither the Bar nor the public; and his noble Friend's revered father himself said, some time afterwards, that if it was to do over again, he would not consent to it. His noble Friend had alluded to his having held the office of Lord Chancellor, but the Chancellor was a political man, and was removable at every change of government, or whenever occasion required. This was very different from the judge of the Admiralty, who had a great criminal jurisdiction, and was a member of the Central Criminal Court, and might be called upon to sit in trials of high treason. He was not on the same footing as the Lord Chancellor, who was known to be a political man, and to hold his office at the will of the. Crown. As for the dispensation of patronage that he had, it was a very disagreeable part of the duty of his office; and he did all in his power while Lord Chancellor to get rid of it, and diminish it, for which he was very much blamed, as his noble Friend very well knew.
§ The House divided on the original question:—Contents 23; Not-Contents 34: Majority 11.
247| List of the CONTENTS. | |
| DUKES. | Leitrim |
| Argyll | Lichfield. |
| Somerset | VISCOUNTS. |
| Richmond. | Melbourne |
| MARQUESSES. | Duncannon |
| Normanby | Falkland |
| Conyngham | Lismore. |
| Lansdowne. | LORDS. |
| EARLS. | Cottenham |
| Minto | Holland |
| Ilchester | Colborne |
| Stanley | Foley |
| Seaford | Barham |
| Lilford | Sudeley. |
| List of the NOT-CONTENTS. | |
| ARCHBISHOP. | VISCOUNTS. |
| Armagh. | Strathallan |
| Strangford | |
| DUKES. | Gage |
| Dorset | Hawarder. |
| Wellington. | Canterbury. |
| MARQUESS. | LORDS. |
| Ormonde. | Colville |
| Sondes | |
| EARLS. | Redesdale |
| Abingdon | Ellenborough |
| Galloway | Sandys |
| Beverley | Prudhoe |
| Liverpool | Rayleigh |
| Rosslyn | Wharncliffe |
| Harrowby | Fitzgerald |
| Verulam | Lyndhurst |
| Sheffield | Cowley |
| Eldon | Wynford |
| Munster | Brougham |
| Ripon. | De L'Isle. |
| Paired off. | |
| CONTENTS. | NOT-CONTENTS. |
| Norfolk | Thomond |
| De Mauley | Stuart de Rothsay |
| Carlisle | Hertford |
| Albemarle | Winchester |
| Hill | Tankerville |
| Gosford | Glengall |
| Stafford | Tenterden |
| Clarendon | Charleville |
| Methuen | Wicklow |
| Mostyn | Boston |
| Bp. of Peterborugh. | Falmouth. |
§ Bill put off for three months.