Lord Brougham, in rising to present a petition from Walsall, in Staffordshire, praying for the repeal of the Corn-laws, said, he wished to mention a circumstance to which he was anxious to call the attention of that House, as the highest court of judicature in this kingdom, to a circumstance connected with the administration of justice. He found, that a right hon. and learned Friend of his had been returned as a Member for the Tower Hamlets. That learned person was now judge of the High Court of Admiralty, and was about taking his seat in Parliament as such a judge. He had inquired, and he had found, on the best authority, that there still prevailed a practice, in this instance alone, of all the judges of this country—a practice which was utterly subversive of the independence of judges, entirely derogatory to their dignity, wholly anomalous in its nature, grounded on no principle, but a violation of all principle by which judicial services were remunerated—the judge, in this case, had no salary. He was a judge, and the only judge without salary, holding office for life; he was excluded from practice at the bar; he was a privy councillor, and how was this judge paid—a judge in the highest station, who had to perform duties of a very peculiar and delicate description? He was paid by an annual vote in the navy estimates, and he had no salary, except some fees, which made the case, in an aggravated degree, worse; for those fees, which were hardly anything during peace, amounted to 8,000l. during war, and if any one judge throughout this country, or any one minister, had the power of involving this country in hostilities with other nations, it was the judge who presided in that court, 258 before which all delicate, difficult, complicated, and perilous neutral questions must, of necessity, come. They all knew, that the armed neutrality of the North, which was so important to the interests of this country, was grounded upon a decision of Sir William Scott. It was perfectly well known, as it was put forward in their manifesto. A person so appointed, as he had stated, had a direct interest in war. He had no salary, except a vote in the navy estimates; he had a most difficult office to fill, although not a very laborious one in time of peace; it required talents, learning, and experience of the highest order, all of which were amply brought to the discharge of the duty in the recent appointment; but in the situation in which his right hon. and learned Friend was placed, he was sure he need not say any more in that court of justice in which he had the honour to stand, as well as in that court of Parliament, to convince their Lordships, and he trusted her Majesty's Government, that such an anomaly ought not to continue. He had made these objections to the mode of payment ten years ago in the House of Commons, when he took objection to the mode of appointment, and still greater to the mode of payment. He would add another objection, which he should be prepared to take when the opportunity arrived, to the effect that a judicial situation ought to be rendered incompatible with a seat in the Lower House of Parliament. Sir William Scott had decided, and this learned judge might be called upon to decide questions which had excited the feelings of the people, and which had excited the feelings of the representatives of the people beyond almost any class of cases that could arise. He alluded to Sir William Scott's celebrated decision with regard to negro slavery. Would it he decent in a judge to be a member of a popular constituency? Sir W. Scott, he believed, was Member for Oxford—and amenable to the popular voice, at a time when, as judge, he might be called upon to decide questions so exciting? But that was not all. There was hardly a week in time of war that political questions did not come before that learned judge. Last year he had himself mooted a case which might have come before that learned judge, and so narrow was the division upon that question, that there was an equality of votes in that House. All these questions were to be decided by a 259 judge—a member of the Lower House of Parliament—who, on every occasion, and on the hustings yesterday, avowed himself a steady regular member of one political party. Everybody must feel with him on this subject, and he should oppose any bill that should be brought into that House, as there must be a bill to give such a judge a salary; he would oppose any such bill, and take the sense of their Lordships upon it. Be would endeavour to secure the independence of the judge in both cases—independence in point of salary, and independence in point of a popular constituency, and independence as a member of a party in the Lower House; and if he were asked which of these two kinds of independence he thought the most important, he should declare, that, in his opinion, the latter was the most important.
§ Viscount Melbournedid not think the present the most convenient period for discussing the subject, but as his noble and learned Friend had thought proper to introduce it for the consideration of the House, he begged leave to say, that in the first part of his noble and learned Friend's statement, he entirely concurred, namely, that with reference to the situation of judge of the Admiralty, the emoluments were too small during peace, and too great during war, under the new character conferred on that judge; and he also entirely concurred with his noble and learned Friend, that it could not be too soon before some legislative measures were taken in order to correct the evils, and to place that judge in a more easy, firm, certain, and becoming situation with respect to salary and emoluments. At the same time, that he declared his entire concurrence and agreement with his noble and learned Friend in the first part of what he said, he could not allow that opportunity to pass, without declaring his entire dissent and difference from him with respect to the latter part. He thought that his right hon. and learned Friend ought to have a seat in the House of Commons. He did not think that his judicial independence would be at all affected in such a situation. He did not think that they would be at all prudent in impoverishing that assembly by removing from it all high legal judicial knowledge. He thought that was a had course of policy, and one that had been pursued too far; and he must be allowed to say that the objection taken 260 by the noble and learned Lord, if it had force at all, applied equally to that House as to the other House of Parliament; and he apprehended that no objection had been taken hitherto according to the law or the constitution, to the highest person holding a judicial situation having a seat in that House. If it necessarily brought him in contact with politics, if it subjected him to political associations and political dealings, all the objections urged by his noble and learned Friend were as applicable to holding a seat in that House of Parliament as in the House of Commons. That unquestionably was his opinion on this subject. When the bill was introduced into the other House of Parliament, if it should pass, their Lordships would then know the shape in which, and the opinions accompanied by which, it would come up to this House, and they would then have an opportunity of considering what those opinions were.
Lord Broughamsaid, there was this little difference between the two Houses, that their Lordships were all judges. The House of Peers was a court of justice. Every one, even the noble Viscount himself, was a judge in appeals, and that House was as much a court of judicature as of legislature. They acted according to oath here, and there was no constituency to control them. That made a most material difference. He did not think it right that a judge of a court of justice, whose duty it was to act according to his conscience, should have to go to Westminster or to Middlesex every six weeks when his constituents chose to call upon him, to enter into an account of the whole of his conduct to five thousand persons. With respect to the statement of the noble Viscount, that in preventing men filling judicial situations from sitting in the House of Commons, they had gone to far; most undoubtedly the Whig party had constantly taken that course. The tendency of that party was to limit as much as possible the connection of the judicial with the legislative functions, in order to keep the judicial seat pure from political association. If the noble Viscount had had as much experience as he (Lord Brougham) had of the questions that came before the Admiralty Court, the neutral questions, and questions of the laws of nations, he would be aware that for several years during the late war nine parts out of ten of the political topics of the day related to 261 the decisions of the Court of Admiralty. Was that, then, a court, the judge of which was to be continually involved in political connections?
§ Subject dropped.