Chapter XXIV: A Naval Study for All Time (7)

There was no question at the time, and many naval officers are yet living to confirm the assertion, that the rapacity of the Admiralty Courts and their extravagant charges for adjudication and condemning prizes did prevent the interception and capture of the majority of the numerous small vessels employed in the coasting trade of the enemy, this forming to him the most vital consideration, as the means of provisioning his armies. At the commencement of the war, the capture of large vessels coming from distant parts with valuable cargoes gave so much prize-money as to render both officers and crews careless about a little exertion more or less, but when the enemy’s foreign trade was destroyed nothing remained to be looked after but small craft, and as the Admiralty Court charges had increased in an inverse ratio to the worthlessness of small craft, few would run the risk of looking after them, with the certainty of small gain, and the more than probability of being brought in debt for their pains. The consequence was, that little or no destruction was offered to the enemy’s coasting trade, which, important as it was to him for subsistence, ought to have been far more so to us, as its destruction would have deprived him of the means of subsistence.

Between the years 1803 and 1807, the naval establishment was increased from 200 to 600 vessels of war, notwithstanding which the coasting commerce of the enemy still went on, and it should have been obvious that when the navy was increased to upwards of 1000 ships, _nothing more was done_. The amusement of cutting out coasting vessels when under the protection of batteries ceased to operate as an incentive. The logs of frigates showed that their commanders avoided the risk of keeping their ships in contiguity with the shore _at night_, and secured a good night’s rest for their men by running into the offing. Hence the enemy’s coasting convoys proceeded by night, and in the day ran into some port or other place of protection. The result in the frigates’ daily journal,—“Employed _as usual_,” was no less true than comprehensive.

For telling such truths as these, an outcry was raised against me for depreciating the character of officers! The case was my own. I took prizes in the Mediterranean and elsewhere by dozens, for which neither my officers nor crews got anything, the proceeds being swallowed up by the Admiralty Courts. I then turned to harassing the coast armies and forts of the enemy, without hope of reward, deeming this kind of employment the most honourable to myself, and the most advantageous to my country. So far from my pointing out the effect on the mind of officers in general being a reflection on their honour, it was only creditable to their common sense. They could not reasonably be expected to sacrifice their rest and that of their crews, or to run their ships into danger and themselves into debt, for the exclusive emolument of the Courts of Admiralty! I have no hesitation in asserting that had the Ministry diminished the navy one half, and given the whole cost of the other half to the Admiralty Court officials in lieu of their charges, the remaining ships would of themselves have turned the course of the war, and their commanders would have reaped fortunes.[77]

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Footnote 77:

In February, 1811, I pointed out to the House of Commons the monstrous
fact that 107 ships of the line were in commission to watch 23!
(Hansard, vol. xv.)

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These remarks will enable the naval reader to comprehend what follows. They are not intended so much for a history of past maladministration as a beacon for the future.

“The noble lord then read a letter from a captain of a vessel at the
Cape of Good Hope, complaining ‘that the officers of ships of war were
so pillaged by those of the Vice-Admiralty Courts, that he wished to
know how they could be relieved; whether they could be allowed the
liberty to send their prizes home, and how far the jurisdiction of the
Vice-Admiralty Court extended; for that the charges of that court were
so exorbitant, it required the whole amount of the value of a good
prize to satisfy them. In the case of one vessel that was sold for
11,000 rupees, the charges amounted to more than 10,000. This was the
case at Penang, Malacca, and other places, as well as at the Cape.’ He
would not, however, wish to dwell on this, but put it to the feelings
of the House, whether naval officers had any stimulus to do even their
duty, when the prizes they took would not pay the fees of the
Vice-Admiralty Courts merely for condemning them? It had been stated
the other day at some meeting or dinner by a very grave personage, the
Lord Chancellor, that the ships of France were only to be found in our
ports. If that statement were believed by Ministers, he should be glad
to know why we at this moment kept up 140 sail of the line, and
frigates and sloops of war in proportion to that number.”

What follows is very curious, as establishing the magnitude of the charges for adjudication in the Vice-Admiralty Courts. The bill for the condemnation of the _King George_ privateer, the first vessel taken by the _Impérieuse_, had brought me 600 crowns in debt, and was of such magnitude that I had an exact copy made of it, and pasted continuously together. The result will be gathered from what follows.

“His Lordship then produced the copy of a Proctor’s Bill in the island
of Malta, which he said measured six fathoms and a quarter, and
contained many curious charges. [_The unrolling this copy caused a
general laugh, as it appeared long enough to reach from one end of the
house to the other._] This Proctor, the noble lord said, acted in the
double capacity of Proctor and Marshal; and in the former capacity
feed himself for consulting and instructing himself as counsel, jury,
and judge, which he himself represented in the character of Marshal;
so that all those fees were for himself in the one character, and paid
to the same himself in the other. He then read several of the fees,
which ran thus:—for attending the Marshal (himself) 2 crowns, 2 scudi,
and 2 reals; and so on, in several other capacities in which he
attended, consulted, and instructed himself, were charged several fees
to the same amount. An hon. member, not then in the house, had last
year opposed the motion he had brought forward, for a Committee to
inquire into this subject; but, on seeing these articles of this his
own Proctor’s bill, his Lordship flattered himself that the hon.
member would now join in the support of the present motion. The noble
lord said he had produced the copy of the bill to show the length of
it. He then showed the original; and to show the equity and moderation
of the Vice-Admiralty Court, he read one article where, on the
taxation of a bill, the Court, for deducting fifty crowns, charged
thirty-five crowns for the trouble in doing it. A vessel was valued at
8608 crowns, the Marshal received one per cent for delivering her, and
in the end the net proceeds amounted to no more than 1900 crowns out
of 8608—all the rest had been embezzled and swallowed up in the Prize
Court. He was sorry, he said, to trespass on the time of the House, on
a day when another matter of importance was to come before them. He
pledged himself, however, that no subject could be introduced more
highly deserving their serious attention and consideration.”

I am not sure that by late treaties prize-money in future wars is not in effect abolished, though how treaties can exist during war I am not aware. If this be so, or anything like the spirit of such an arrangement, certain I am that the prestige of our navy is gone till the old system is restored. The United States Government has, I am told, had the good sense not to conform to any arrangement of the kind. If my life be longer spared I may in a future volume revert to this subject.

However, even as the matter now stands, something must be captured, and I would suggest as a remedy for this enormous Admiralty Court evil to assimilate the regulations of those courts to the courts of law. Pay the judges and officials as other judges and officials are paid. Permit officers of the navy to choose their own proctors, as suitors in other courts choose their own attorneys. It is not honourable to the Government nor just to those serving under its authority, to compel officers to place the litigation of all prizes—even detained neutrals—in the hands of one individual, who, under the name of proctor, may have hundreds of causes in hand at the same time. The detention of a neutral may compromise a captain’s fortune in the event of an unfavourable or hurried decision, for in such cases the liability to damages falls exclusively on captains, the admirals and crews having no responsibility. For my own part, as it was neither my bounden public duty, nor safe to my personal interests, to interfere with neutrals, I avoided their detention, however apparently flagrant the violation of their nominal neutrality.

“He (Lord C.) would not trouble them with anything concerning himself,
because he trusted he had a remedy elsewhere. The noble lord then
stated that altering or regulating the fees established by the King in
council, for the island of Malta, was contrary to Act of Parliament,
that when he went to Malta five years ago he found the fees very
exorbitant; and, in order to prove to the House that the fees demanded
now were fees which had been altered since the table of fees was sent
out, the noble lord mentioned an instance of thirteen small vessels
which had been taken by the gallant Captain Brenton, who lately lost
his arm in the service, being brought into the Vice-Admiralty Court
for condemnation; the charge made for doing that act (which must be
done before the prizes could be sold) was 3767 crowns; but on a severe
remonstrance from Captain Brenton, the Judge deducted 3504 crowns, and
was glad to accept 263 crowns instead of 3767, rather than have a
noise made about it in England.

“He (Lord C.) could assure the House the subject was well worthy their
attention; and, if the Lords of the Admiralty knew all the
circumstances, he was confident that, instead of opposing, they would
support his motion. He meant to accuse the Judge, the Marshal, and the
Registrar of the Court with abuse of their offices, and concluded by
moving, ‘That there be laid before this House, 1. Copy of the
Commission or Appointment of Dr. Sewell to officiate as Judge of the
Vice-Admiralty Court of Malta. 2. Copy of the Commission or
Appointment of Mr. John Jackson to the office of Marshal to the said
Court. 3. List of the Proctors officiating in the said Court, with the
dates of their admission. 4. Copy of the Appointment of Mr. Locker to
execute the office of Registrar of the said Court. 5. Copies of the
several deputations given by the Registrar and the Marshal of the said
Court to their respective deputies to the end of February last;
together with the notifications of those appointments to the High
Court of Admiralty, or the Board of Admiralty, with the reasons
assigned for such nominations or appointments. 6. Copies of any
representations made to the Lords Commissioners of the Admiralty
regarding the incompatibility of the situations of Proctor and
Marshal, united at Malta in the person of Mr. Jackson, and the
consequent correspondence with the Court of Admiralty, or the Judge of
the Court of Admiralty, on that subject. 7. Copy of any Table of Fees
established by His Majesty in Council, and furnished to the Courts of
Vice-Admiralty under the Act of 45 Geo. III. c. 72, or any other Act
of Parliament. 8. Copy of the Table of Fees by which the charges were
made on the suitors in the Court at Malta. 9. Copy of the Authority by
virtue of which the Judges of the Vice-Admiralty Courts are empowered
to alter or amend the Table aforesaid; or to make any other Table of
Fees, to regulate the charges incurred by the suitors in that Court.
10. Copies of Official Demands made, or Official Correspondence which
has taken place, between the Judge of the Vice-Admiralty Court at
Gibraltar, or at Malta, and the High Court of Admiralty, or the Judge
of the High Court of Admiralty, requiring or regarding a Table of Fees
to be sent for the guidance of those Courts, or either of them. 11.
List of the number of vessels that have been prosecuted in the Court
of Vice-Admiralty at Malta, and which have been liberated on payment
of costs and damages or otherwise. 12. Copies of the Appointments
which —— Wood, Esq., late Secretary to Lord Viscount Castlereagh,
holds in the island of Malta.’

“MR. YORKE said that he did not mean to object to the production of
the greater part of the papers moved for by the noble lord. His motion
seemed to charge with extortion the persons connected with the
Admiralty Court at Malta; and certainly the _prima facies_ appeared to
justify it, and some reform might be necessary in some of the
departments, which induced him to acquiesce in the general features of
the noble lord’s motion; but some difficulty might exist in the
production of one or two of the papers he moved for, as they possibly
implicated some private correspondence which it would be improper to
produce. Many of the papers moved for must be brought from Malta, and
therefore it would be impossible that the investigation could take
place this session; and he hoped the noble lord would, on examination,
if he found just ground, persevere in his motion, as it was certainly
highly improper for the dignity of the House and the due management of
the affairs of the country that a remedy should not be applied to
those evils, if they existed.

“SIR JOHN NICHOLL (King’s Advocate), while he admitted with the First
Lord of the Admiralty, that the case, as it stood at present called
for inquiry, thought proper at the same time to state, in the absence
of his learned friend (Sir W. Scott), that he had no control over the
Vice-Admiralty Court of Malta in matters of prize. The appeal lay to
the King in Council, and his learned friend was not in the smallest
degree responsible. If the abuses charged by the noble lord existed,
they ought to be corrected; but his doubt was as to the means. His
Majesty in Council had authority to correct abuses as to fees, &c.;
but no application, as far as he knew, had been made in that quarter.
It was the fashion now to come to Parliament in such cases. As to the
character of the Judge of the Prize Court at Malta, he not having been
in the habit of corresponding with him could not undertake to speak
positively to that point. Having practised with him for some time at
the same bar, he had every reason to believe that he was a man of
talent and integrity, and the noble lord knew that he was not wanting
in spirit to execute what he thought right. He was absent, and he was
a Judge—and no prejudices ought to be admitted against him till he had
an opportunity of being heard in his defence. He hoped the noble lord
was under a misapprehension. The regulation of the fees had been
probably left to the Judge because he himself could hardly have any
interest in augmenting them. They could hardly fall below 2000_l._, to
which sum only he was entitled out of them. From the failure of the
noble lord in substantiating charges made by him on former occasions,
it might be fairly inferred that accusations preferred by him might
possibly turn out to be unfounded.

“SIR FRANCIS BURDETT said he should have made no observation on the
subject, after having seconded the motion, but from what had fallen
from the right hon. gentleman who had just sat down, that his noble
colleague had not substantiated the charges he formerly brought
forward. The reason of this was obvious; the noble lord had never had
an opportunity given him to substantiate his charges. He had pledged
himself to prove them at the bar of the House, but his motion for a
committee was negatived.

“MR. ROSE said that when abuses in the Vice-Admiralty Courts abroad
were detected, measures were always taken to rectify them, and
proceedings were at present pending _against three of those courts_.
But he defied the noble lord to point out any impropriety in the
Admiralty Courts at home. After the minutest investigation, he could
not find a single ground of complaint against the officers of that
Court. The proctor for the navy was remarkable for his attention and
integrity, and his charges were more moderate than those of any other
proctor. The interests of the officers of the navy were as well
attended to as those of any individual. The noble lord had failed in
two charges on former occasions. He had brought charges against the
Admiralty Court, and against the Government for the treatment of the
prisoners of war. Both were utterly unfounded. The prisoners, as had
been found on inquiry, were even more healthy than our militia
regiments.

“MR. LYTTLETON said the right honourable gentleman who had spoken last
_allowed abuses existed_; he did not know whether it was so or not,
but he knew several officers of the navy of the highest character who
complained loudly that there were, and this was in his opinion good
ground for granting the present motion.

“LORD COCHRANE stated that, having complained to the Admiralty here of
a grievance in being obliged to submit to exorbitant charges in the
prosecution of a prize cause at Malta, the opinions of the Attorney
and Solicitor-General, and other lawyers, had been put into his hands,
purporting that his plan was to apply to the Judge at Malta. He wrote
to the Judge accordingly, who referred him to the Proctor, as he did
not choose to enter into private correspondence with suitors in causes
before him. He then wrote to the Proctor, who sent for answer that it
was unprecedented to demand a bill to be taxed that had been paid so
long ago as 1808; so that he thought his having got the money a good
reason for not parting with it. He then wrote to the Judge but got no
answer, and this was the redress he got in the quarter where the crown
law officers had advised him to apply. The noble lord further
observed, that in opposition to the act of the 45th of the King, the
Judge at Malta had not only established but altered the table of fees.
An allusion was made to the spirited conduct of the Judge; but he had
affidavits of Captain Maxwell and others, who were present, that the
Judge had admitted that he had no proof of the crime for which he
(Lord C.) had been sent to gaol. Against him, however, he would
proceed in another way, unless he should find it necessary to call for
the interference of the House to bring this Judge home. He had
consulted lawyers, and understood that he could not proceed against
him till he came to this country. As to his former charges, he had
been denied the opportunity of proving them. He concluded by repeating
his charges of extortion, &c., against the Judge and Marshall.

“MR. WHITBREAD said that if the official correspondence did not clear
up the case, he would move for further papers if no one else did.

“Some alterations were then made in the motion, in consequence of a
difference of opinion as to the construction of the 45th of the King,
relative to the establishment of tables of fees in the Prize Courts,
after which they were all carried.”

Notwithstanding the admission of the First Lord of the Admiralty that the papers were necessary, and that they were produced, it is scarcely creditable that the Government subsequently refused to act in the matter, thus turning a deaf ear to proofs that the enactments of the Legislature were defeated by the rapacity of distant Admiralty Courts, which continued to impound without scruple the rewards which the Legislature had decreed for effective exertion.

The naval reader who may wish to know more respecting the extortionate fees of these courts may refer generally to Capt. Brenton’s “Life of Lord St. Vincent.” I will extract one passage. He says (vol. ii. p. 166):—“Lord Cochrane made a statement of some facts to this effect in the House of Commons, but he might have gone much further. The proctor’s bill for a prize taken by the _Spartan_, when my brother commanded her, was 1025_l._, which, when refused payment and taxed, _was reduced to 285l!_”

Capt. Brenton thought “I might have gone much further.” So I might, but with as little effect. Even the facts I did state were impudently denied or shamelessly defended.

On the 14th of June an attack was made upon me by the Secretary of the Treasury, on account of some remarks which I had deemed it my duty to make on the condition of the French prisoners at Dartmoor. In consequence of circumstances which had come to my knowledge, I visited that prison and _was refused admittance_ the moment my name was announced. This did not, however, prevent my surveying the prison from an eminence on the exterior: this cursory inspection confirmed the information I had received.

“MR. ROSE observed that it would appear from these documents that the
total number of French prisoners remaining in England amounted to
45,939, and that the returns of the sick were 321. The number on
parole were 2710; and the sick 165. This statement, he conceived,
would be a sufficient answer to the imputations of negligence upon the
part of the Government which had been thrown out by a noble lord.

“LORD COCHRANE referred to the manner in which he had been reproached
by Mr. Rose’s pointed address, and thought it incumbent upon him,
considering the repeated assertions of that hon. member, that he was
unable to prove facts which he had stated to the House, to justify his
conduct in having given notice of a motion relative to the prison in
Dartmoor; but in which he did not persevere, for reasons very
different from those assigned by the right hon. gentleman. His
Lordship had never asserted that which he could not establish. The
time that had elapsed would sufficiently evidence his reluctance to
bring the matter to the knowledge of the public, fearing that a
disclosure might add to the misfortunes of his countrymen in France.

“Having received many letters stating the condition of the prisoners
of war at Dartmoor to be truly deplorable, he determined to
investigate the subject; and, having had occasion to go to Exeter, he
proceeded to Launceston and other depôts, whence he obtained the
intelligence, and, being satisfied that the complaints had some
foundation, he went to Dartmoor; but was refused admittance, even in
his capacity as a member of Parliament (a laugh). Though members might
laugh, he thought members of Parliament should be entitled to
admission there, or to any other prison in the kingdom. Having
contributed to place many individuals there, he applied for permission
to see the interior, but was refused leave, except to look through a
grating into the outer courtyard. He found the climate of the prison
accurately and faithfully described, and he was the more anxious to
see the interior, owing to the refusal directly given him. He inquired
the reason for building a depôt in such a barren, elevated, and
extraordinary situation, and was told that it was for the purpose of
attracting inhabitants. He proceeded to Plymouth, where he obtained a
plan of the prison, which fully corroborated one complaint, that the
health of the prisoners had suffered by exposure to heavy rains whilst
standing in an open space for several hours receiving provisions
issued at a single door; the cooking-room being several hundred feet
from the prison, which then contained six thousand prisoners, divided
into messes of six; consequently one thousand were soaked through in
the morning attending for their breakfast, and one thousand more at
dinner. Thus a third were constantly wet, many without a change of
clothes. He was told, however, that they gambled or sold them. On his
second visit to Dartmoor his Lordship, being again refused admittance,
began to explore the exterior, and found, by a very peculiar
coincidence, that the manure from this prison had been placed on the
only spot in Devon whence the stercoraceous matter of the depôt could
descend on a neighbouring and elevated estate belonging to the
Secretary of His Royal Highness the Prince Regent (Mr. Tyrwhitt). Had
such a circumstance happened in the island of Walcheren to an estate
of the Secretary of Louis Napoleon, he would not have been surprised.
The prison of Dartmoor was built in the most inclement part of all
England, on the top of the highest mountain in Devonshire, involved in
perpetual rains and eternal fog. That the prison was not built there
on a principle of economy might be seen by inspecting the contracts
for provisions, coals, and necessaries furnished at Dartmoor and at
Plymouth. He thought he calculated a difference of more than seven
thousand pounds a year on the provisions alone. It might be very
proper, he imagined, that prisoners should not be collected in great
numbers at Plymouth, but he asserted that Dartmoor depôt ought not to
have been placed upon the top of the highest and most barren range of
mountains in Devonshire, where it is involved in constant fog, and
deluged with perpetual rain. He had relinquished his intention of
entering into the matter, because he received assurances that the
situation of the prisoners would be immediately attended to. He would
abstain from remarking upon the manner in which Mr. Rose had taken him
by surprise, and wrested from him those facts in his own defence. Had
he brought that matter forward voluntarily, his Lordship would have
cleared the House, to prevent publicity.”

Capt. Brenton, in his “Life of Lord St. Vincent,” when speaking of the treatment of our prisoners of war, bore testimony to the truth of my representations, which Mr. Rose had so emphatically denied:—

“The charge of sick and wounded prisoners of war fell into the hands
of a set of villains, whose seared consciences were proof against the
silent but eloquent pleading of their fellow-creatures—sick and
imprisoned for no crime, in a foreign land, far away from their
friends and relations.” (Vol. ii. p. 165.)

No one supposed the Government to be guilty of the matters complained of, but they refused to inquire into the conduct of those who were, thereby protecting them in their iniquity. I saw at Dartmoor old and _recently mutilated_ bulls, covered with dust and gore, driven along the road towards the prison, leaving tracks of blood behind! Thus the contract for supplying the prisoners with _ox beef_ was fulfilled by some partisan of the government, who had _sublet_ his contract to a Devon butcher. It was not always in those days that a contract was given to the tradesman who fulfilled it.

On the 18th of July I brought forward a motion on the subject of my arrest at Malta:—

“_Conduct of the Vice-Admiralty Court at Malta.—Arrest of Lord
Cochrane._

“LORD COCHRANE rose and said:—

“SIR,—The delay that has taken place since my return to England, and
the legal authorities that I have consulted, will, I trust, evidence
that I trespass on your attention with reluctance, relative to the
conduct of the Judge and members of the Court of Vice-Admiralty at
Malta; partly from a desire to avoid the possibility of private
motives being imputed to me, but chiefly from a conviction that
Parliament should not interfere in matters cognisable in the courts of
justice.

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

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

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

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

‘Thus instructed, I addressed the judge on my return to Malta, in
February last, soliciting that he would be pleased to direct my bill
to be taxed, to which he returned the following answer, addressed on
His Majesty’s service:—‘My Lord, In reply to your letter of
yesterday’s date, I beg leave to refer you to your proctor for the
information you are desirous of, it not being the practice of the
Vice-Admiralty Court here, any more than the Court of King’s Bench in
England, to enter into private correspondence with suitors on the
subject of their suits or of any matters connected with them. Signed
J. Sewell.’

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

“Being thus excluded from the ‘proper mode of redress for grievances
of this description,’ I proceeded to the court-room of the
Vice-Admiralty for the purpose of comparing the charges contained in
numerous bills in my possession with the established fees, which I was
instructed by the Acts of Parliament, ‘should be suspended in some
conspicuous part of the Court,’ every part of which I searched in
vain; neither was the table in the Registry, where His Majesty’s
Advocate directed me to look for it, who, on my returning into Court
again, to make further inquiry, said that I would find it affixed on a
door leading to the adjoining room.

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

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

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

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

“Be it known to all persons whomsoever it may concern that on the 2nd
day of March, in the year of our Lord 1811, personally came and
appeared before me the undersigned notary-public Percy Fraser,
commissioner of His Majesty’s navy, resident in the island of Malta,
Charles Rowley, Esq., captain of His Majesty’s ship _Eagle_, and
Murray Maxwell, Esq., captain of His Majesty’s ship _Alceste_, and
solemnly made oath that on the aforesaid 2nd day of March, whilst the
Court of Vice-Admiralty of the said island of Malta was sitting, they
severally and distinctly heard John Sewell, LL.D. the judge thereof,
and whilst sitting in his judicial chair, admit in open Court, and in
the presence of divers persons there assembled, to the Right
Honourable Lord Cochrane that there existed no proof in the aforesaid
court of his said Lordship’s having taken down the paper in question,
by the judge aforesaid called the table of fees.

(Signed) Percy Fraser, C. Rowley, Murray Maxwell.’

‘On the second day of August, 1811, the aforegoing attestation was
duly sworn at Malta, where stamps are not used, before me, Chas. Edw.
Fenton, Notary-Public.’

“Notwithstanding the confession of the judge in open Court thus
attested, I remained unnoticed three days longer in the public gaol,
where I now clearly saw that it was the intention of the judge to
detain me until the packet had sailed for England, and probably until
she returned to Malta with instructions. I therefore wrote to the
Governor, who, having consulted Messieurs Moncreiff, Forrest, and
Bowdler, three gentlemen of the law, sent me their opinion, that His
Excellency should not interfere with a Court, acting, as they were
pleased to call it, under His Majesty’s authority, although in
violation of the law. I addressed the President also, who said, that
the Courts of Malta could not interpose. Indeed, had it been
otherwise, little good could have been expected from an appeal to
these Courts, which are still governed by the iniquitious and
oppressive code of Rhoan, to the disgrace of all the ministers who
have ruled since the surrender of the island to England. Sir, The
Maltese stipulated then that a constitution securing property and
rights should be granted, and trial by jury; but these have been
denied, and examinations are still taken, and sentence pronounced,
with shut doors, by their judges, whose appointments are during
pleasure. I do not impute blame to His Excellency the Governor, for
whom I have a high respect, yet I must say that the system of blending
the military and civil authority cannot fail to become oppressive.
Ministers have no better excuse for this union of power contrary to
the express stipulations of the inhabitants of the island, than a
despicable petition signed by the dependents on Government, and
shamelessly transmitted and received as the voice of the people! Being
furnished with an affidavit that the judge did not intend to proceed
in the matter on the next Court day, I resolved, as the door was
locked and guarded, to get out by the window, which I according
effected; and the following proclamation was issued for my
apprehension, in which I am designated by as many names as if I had
been a notorious thief:—

ce “‘ESCAPE OF LORD COCHRANE.

“‘Whereas, the Honourable Thomas Cochrane, esquire, otherwise the
Honourable Sir Thomas Cochrane, Knight Companion of the most
Honourable Order of the Bath, commonly called Lord Cochrane, escaped
out of the custody of James Houghton Stevens, the Deputy Marshal of
the Vice-Admiralty Court of this Island, from the prison of the
Castellanea during the course of last night. This is to give notice,
that whoever will apprehend or cause to be apprehended the said Lord
Cochrane, and deliver him into the custody of the said Deputy Marshal,
shall receive a reward of Two Thousand Scudis currency of Malta, and
that whoever will give such information as may lead to the
apprehension of any person, or persons, who was or were aiding and
assisting the said Lord Cochrane in such his escape, shall receive
upon such conviction, if only one person was so aiding and assisting,
the sum of One Thousand Scudis, or if more persons than one were so
aiding and assisting, then upon the conviction of each of such persons
the sum of Five Hundred Scudis, notwithstanding that in such latter
case the person so giving information shall himself have been aiding
and assisting to the said escape. Witness my hand, this sixth day of
March, 1811.—JAS. H. STEVENS, Deputy-Marshal. No. 188 Strada Stretta.’

“Now, Sir, although the treatment which I received is altogether
foreign to the main point, yet I am desirous to learn from you as
Speaker of this House, whether my imprisonment was or was not a breach
of the privilege of parliament?”

THE SPEAKER.—I do not know whether the House expects me to reply to
the questions which the noble lord has put to me, perfectly new as one
appears to be; but, as far as my information goes, I will give it, if
the House thinks fit that I should do so. (Hear, hear!) With respect
to the privileges of the House, I know of no means of enforcing its
privileges, but in the usual way, from time immemorial, by its own
officers; and I never knew one instance of any officer having been
sent across the seas at the instance of any member, on a complaint of
insult offered to him personally. (Hear, hear!) So much for the
question of privilege. In the next place I never knew an instance in
which any member of parliament, properly before a court of justice,
was at liberty to treat with impunity the proceedings of that court,
or to say that what was done in respect to himself was done in
contempt, or that could authorise him to say that the privileges of
parliament were infringed in his person for such conduct.

LORD COCHRANE.—Sir: It was at first my intention, to have moved an
address to the Prince Regent, to recall the judge, registrar, and
marshal, to answer for their conduct and proceedings, contrary to the
express words of acts of parliament; but on consideration, and in
compliance with the suggestion of the First Lord of the Admiralty, I
have thought it better to move, “That a committee be appointed to
examine, into the conduct of the judge, registrar, and marshal, and
their deputies, of the Court of Vice-Admiralty at Malta, for the
violation of the 37th, 38th, 39th, and 41st sections of the 45th, Geo.
3, cap. 72.”

MR. P. MOORE seconded the motion, not from any knowledge of its
merits, but thinking that if the matter of charge was not inquired
into it would reflect upon the House.

MR. STEPHEN could not avoid applauding the benevolent motive of the
honourable gentleman who had seconded the poor outcast of the noble
lord. With respect to the conduct of the learned judge alluded to, he
was satisfied it was the opinion of the House that he had done nothing
amiss—that the dignity of his office required that he should exert his
authority after the direct insult that the noble lord had offered to
the court. The charge against the noble lord was for taking down the
public document of the court, a charge which he had not denied, nay,
indeed, the noble lord had exhibited what he termed a fac-simile of
the table of fees, and so closely imitated, that the very impression
of the wafers—the document itself, and its smoke-dried appearance,
seemed to proclaim its originality. The conduct of the noble lord,
when required to answer for this contempt, was not merely that he
refused to obey the monition, but that he pulled out a pistol, and
threatened to shoot any man who attempted to execute it upon him.
Chapman, the officer, therefore (and the fact was confirmed by two
witnesses), thought it not prudent to execute a warrant at the point
of a pistol, and had not the courage to act. The noble lord had stated
that he refused to answer interrogatories, and that he made a protest
against the proceedings of the court. It was not regular for the court
to receive protest arraigning its proceedings, and upon the inquiry it
did not think there was sufficient grounds for discharging the noble
lord from his arrest. If, however, he was aggrieved, there was a
channel through which he might have had redress, without coming to the
House, by appearing before the Privy Council, and stating his charges
against Dr. Sewell, who would, if proved, be removed. But should there
not have existed, in the executive government, a disposition to
redress the noble lord’s grievances, then it would have been open for
him to appeal to the House, but to come at the end of the session was
not very regular. Dr. Sewell was a person of correct conduct, and
unlikely to act with injustice to any individual.

MR. YORKE objected to the motion on three grounds: first, because the
case was one of the _most frivolous_ ones he had ever met with;
secondly, because the noble lord, if he had just cause for complaint,
should have made it at the Admiralty, and that Board would have
investigated the complaint; and thirdly, because the complaint,
instead of being made by the noble lord, was by his own showing a
complaint against himself. He had this to state to the noble lord,
that if he had not been an officer on half-pay he would have heard
from the Board of Admiralty in a different way. With respect to the
marshal exercising the office of proctor, in conjunction, he would
recommend an inquiry to be made, as it was contrary to the express
provisions of the Act of Parliament. But with respect to the noble
lord’s case it was, he must repeat it, one of the most frivolous cases
ever brought before Parliament.[78]