H. B. Swabey,
Esq.

11 July 1843.

12. Not within probability, but within possibility; suppose both the judge himself and all the surrogates were absent ?-They never are absent; if they were absent, that would happen; but they are always to be found at Doctors' Commons.

13. Prize appeals were made before the Act to certain members of the Privy Council, appointed Commissioners of Prize Appeals ?-Yes; under a commission for hearing prize appeal causes.

14. In that case was the appeal to his Majesty in Council, or was it direct to the Commissioners of Prize Appeals?-It was direct to the Commissioners of Prize Appeals.

15. And there was no occasion then, in that case, for any petition of reference, or any intermediate step, before the application for and decreeing of the inhibition? -None whatever.

16. By the 3 & 4 Will. 4, c. 41, were all appeals in prize suits, or in other suits, in the Admiralty or Vice-admiralty Courts, transferred to his Majesty in Council? That was so.

17. By sect. 2 was it enacted, that "appeals are to be made in the same manner and form, and within such time wherein such appeals might, if this Act had not been passed, have been made to the said High Court of Admiralty, or to the Lords Commissioners in Prize Cases respectively; and that all laws or statutes now in force with respect to any such appeals or applications shall apply to any appeals to be made in pursuance of this Act to his Majesty in Council?"-Yes, that is the enactment.

18. By sect. 3 was it enacted, that his Majesty was to refer all such matters to be heard by the Judicial Committee, who were to "make a report or recommendation thereon to his Majesty in Council for his decision thereon, as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his Privy Council, or a committee thereof?"-It was exactly so, upon the petition of appeal being laidbefore his Majesty in Council.

19. Are you prepared to state what was the practice in other appeals referred by his Majesty in Council to the Privy Council?-I speak in the presence of Mr. Reeve, but I believe it is by petition of reference in the same manner.

20. By the 2 & 3 Will. 4, c. 92, the powers of the High Court of Delegates were transferred to his Majesty in Council?—Yes.

20*. Was not power given, by Order in Council, to make rules and regulations for the due and more convenient proceeding in such appeals?—Yes.

21. Were any Orders in Council made under that Act, and what were the dates?-Such Orders in Council were made; I have them here, and can refer to the dates.

22. Under those Orders it was directed that the petition should be lodged with the registrar of the High Court of Admiralty and Appeals; and that the petition should be sent thence to the Privy Council, and Her Majesty's pleasure should be taken thereon ?-Either under those orders, or under the Act.

23. And has such been the practice ever since?--It has.

24. Then the practice in these appeals in this respect is in conformity with the practice in all appeals to Her Majesty in Council, when Her Majesty refers the case to the Privy Council, or to any Committee thereof?-Entirely so.

25. Upon that petition being presented, the petition is taken into consideration by Her Majesty in Council, and is referred to the Judicial Committee, and the party applies to the Judicial Committee, or to one of its surrogates, for an inhibition, and the inhibition is thereupon decreed ?-In ordinary cases that is so.

26. But no such inhibition can be applied for, or can be decreed, till the answer to this petition has been made?-Certainly not.

27. Then the appellant having presented his petition, has no control over the matter so far as regards the time of reference; is that so?—None, that I am at all aware of.

28. Under ordinary circumstances, what has been the usual time within which, after the lodging of the petition with the registrar of the High Court of Admiralty, a reference to the Judicial Committee has been made ?-The time varies according to the circumstance of whether a Council may be held or not.

29. But what has been the usual time?—I think varying from one week to four weeks.

30. Captain

30. Captain Pechell.] Have the parties run it so fine that the time has been from one week to four ?-The petition has been presented, and the Council has not been held so as to obtain a reference earlier than that time.

31. Chairman.] In the case of the Guiana, the vessel was seized for an illegal trading in slaves on the coast of Africa?-The precise section of the Act under which it was seized, I do not know; but it was for some violation of the Act of the 5th of Geo. 4, c. 113, on the coast of Africa.

32. Where was it carried to, and what were the proceedings that were taken, and what was the result?-It was carried to Sierra Leone, and there condemned. 33. What was the result of that condemnation ?-The result of that was, that the proceeds of the ship and cargo half belonged to the "Cæsar" and half to the Crown.

34. What is the date of the sentence at Sierra Leone?-The 12th of August 1840.

35. When was the appeal lodged with the registrar of the High Court of Admiralty and Appeals ?-The 16th of July 1841.

36. When was the petition of reference dated and sent in ?-It was dated the 16th of July and sent in on the same day.

37. Where was it sent?-To the Privy Council on the 16th of July.

38. When was the Council held which decided upon that petition?-On the 11th of August 1841.

39. What was the result of that decision ?-A reference.

40. When did the information that the appeal had been referred reach the registrar of the High Court of Admiralty and Appeals?—I think on the 12th of August.

41. What was the date of the letter conveying that information?-The 11th. It was communicated to the appellant's proctor on the 13th.

42. What was the first step taken thereon, and when ?-After a good deal of discussion whether it was proper that the inhibition should issue or not, the inhibition was decreed on the 3d of September.

43. When was the inhibition first applied for?-The commission to take a claim which necessarily preceded it, for there was no claim in the court below, was applied for on the 28th of August.

44. Have you any knowledge of the cause of the delay from the 13th of August to the 28th of August ?—I think there was considerable hesitation whether it was proper to issue that commission to take a claim and to decree the inhibition, the time having elapsed; further than that I do not know.

45. Did you, as registrar of the court, express any opinion as to the legality or illegality of issuing the inhibition at that time?-I expressed a hesitation, and after some days had elapsed in discussing that, I thought it was better that the inhibition should issue and that the case of the appellant should not be prejudged, but should come before the Judicial Committee of the Privy Council.

46. Mr. Darby.] The inhibition prevents the party who has obtained the sentence of the court below from getting at the proceeds?—Yes.

47. Chairman.] When was the first application made for a commission to take a claim?-The 28th of August.

48. Was that the first application?—I dare say there had been previous discussions; but the first formal application to the surrogate was made on the 28th of August.

49. By whom was that commission applied for ?-By the appellant's proctor. 50. It was then decreed; but did the delay arising from that, cause the interposition of three or four days till the 3d of September?-It necessarily caused that delay, for during that time it was sent to Liverpool to be executed.

51. Did any and what proceeding take place subsequently before the Judicial Committee? There was an appearance given by the captor, under protest, and that protest was extended in an act on petition, which came on to be heard before the Judicial Committee on the 29th of November 1842.

52. What were the grounds of protest?-The grounds of protest were, that the appeal could not be prosecuted, because the inhibition had not been applied for and decreed within twelve months.

53. What was the decision of the Judicial Committee upon that?—The decision of the Judicial Committee was in favour of that protest, and the inhibition was by them decreed to be relaxed.

H. B. Swabey,
Esq.

11 July 1843.

H. B. Swabey, · Esq.

11 July 1843.

54. Have the proceeds under that decree been paid out to the captor, and if not, why not?-They have not been paid out to the captor, because the decree in itself is a nullity.

55. In short, it was an excess of jurisdiction in the Court, the Court having no right to make such a decree itself, but having only the right to recommend Her Majesty to make such a decree ?-That is so.

56. Nevertheless, could not the captor at any time, from that moment to the present, and now, unless prevented by an Act of Parliament, go before the Judicial Committee, and pray the Judicial Committee to recommend Her Majesty to decree that that inhibition should be relaxed, and thereupon would he not be entitled to take the whole of the proceeds out of the registry of the Court?-He would.

57. Has not the captor a vested right in the proceeds of this vessel, indefeasible. except by an Act of Parliament ?-He would have that vested right if the decree were not a nullity.

58. But has he not a vested right to a decree in that case-I think he has to an Order in Council of Her Majesty, if their Lordships chose, under the present circumstances, so to report.

59. But suppose there was no Act of Parliament, does not the principle of that decision upon the protest necessarily imply that their Lordships would make that report, and recommend Her Majesty to relax the inhibition ?-It does.

60. Mr. Darby.] There is no court of appeal beyond this?—No, none. 61. Then that is the last court of appeal, the decision of which court would give the parties an interest in these proceeds ?- It is so.

62. And in the course of the proceedings of which court, the party would be entitled to those proceeds, if something did not step in between to take them from him; is that so?—Yes.

2

63. Viscount Sandon.] Nothing but an Act of Parliament or a change of opinion on the part of the Privy Council could interpose to prevent the captor from receiving the proceeds?-Nothing but a change of opinion or an Act of

Parliament.

64. If a change of opinion were to take place on the part of the Judicial Committee of the Privy Council, an Act of Parliament would not be required?—They have no power to change their opinion, but their decree being informal, upon being now applied to to make a report to Her Majesty, they might say, with all their present knowledge, that they would not so report.

you

65. Mr. Thesiger.] But having made a final decree upon the matter, do anticipate that the Judicial Committee of the Privy Council would refuse to recommend to Her Majesty to confirm that decree ?-Unless in contemplation of an Act of Parliament, they would not.

66. So that it would be necessary, in order to intercept the fruits of that decree, to have a special Act of Parliament passed for the purpose?-If their Lordships thought proper to report as according to their former opinion, nothing but an Act of Parliament would prevent the right of the captor.

67. Chairman.] The decree in itself, and all that led up to it, is a nullity at present? It is a nullity.

68. Therefore, upon any application being made to the Judicial Committee at present, they must go into the whole question, and re-consider their former opinion?—Yes; and they must report what they then think fit to report.

69. Mr. Thesiger.] When you say that it is a nullity, is that anything more than this, that they have not adopted the formal technical course of recommending to Her Majesty to confirm that decree?-It is no more than that.

70. Were you present at the time the judgment was pronounced?-I was. 71. Was it pronounced by Lord Campbell?—It was.

72. Do you recollect these expressions in the judgment: "I certainly, and all their Lordships, do exceedingly regret that the appellant should be shut out from the opportunity of having his appeal heard; but, however great that hardship may be, that cannot alter the law. It has been said that hard cases make bad law, and their Lordships must guard against the inclination that judges may feel on the ground that there may be a pressure of the law in any particular case. The courts must look at the general rules, and be governed by them. It gives me and their Lordships less regret, however, in this case, because there was, as it seems, very considerable laches on the part of the appellants; they heard of the condemnation

demnation in the month of October, and they took no judicial step until the month of July following; and between the 16th of July and the 12th of August, if they had made the usual applications to the officers who superintend those matters, we have no doubt at all that there would have been a reference by The Queen in Council to the Judicial Committee before the year expired"?-I believe Lord Campbell used very nearly those words; but I am not at all aware whether it was in the power of the party to expedite the holding of a Council or not.

73. You know nothing of the reason which induced the owners of the vessel to abstain from proceeding from October 1840, when it seems that they heard of the condemnation in the Vice-Admiralty Court in Sierra Leone, till July 1841 ?— I have heard that they were not in possession of sufficient facts to move at an earlier period; but of that I know nothing of my own knowledge.

74. Viscount Sandon.] But is there or is there not an opportunity in the hands of the Lords of the Privy Council of re-considering the question, without an Act of Parliament ?-It would be necessary that their Lordships should do a formal act before the proceeds could be paid to anybody, namely, to report to The Queen.

75. Mr. Thesiger.] In fact, to complete the judgment?—Yes; but it is not open to any further discussion before that.

76. Mr. Darby.] Did you ever know a case yourself, in the course of your official connexion with the court, where judgments have been pronounced, where they did not report to The Queen ?—That depends upon the nature of the question before them.

77. In such a case as this?-In such a case as this they ought to have reported, and it is the mere informality of their not having reported that makes it a nullity. 78. Mr. Thesiger.] Who is it that grants the inhibition?—Any surrogate of the

court.

79. What was there to prevent an application to the surrogate of the court to grant this inhibition, even before the application to The Queen in Council?-The surrogate has no authority whatever till a reference is made by Her Majesty to

the Judicial Committee.

80. Has that been decided that the surrogate has no power to grant au inhibition? It has always been acted upon, and I have not the smallest hesitation myself upon it.

81. Is there anything in the Act of Parliament which requires an application to be made to The Queen in Council, and a reference to the Judicial Committee, before the inhibition is granted?—Yes, I think there is.

82. Will you refer to the clause in the Act of Parliament which you consider implies that?—I think it is the 3d section of the 3d & 4th of William the 4th.

83. Is there anything in the section to which you have referred, which renders it necessary that the inhibition should be posterior to the reference to the Judicial Committee of the Privy Council?-The Judicial Committee itself has no power till the appeal inade to The Queen in Council shall have been referred to the Judicial Committee, and the surrogate is the officer of the Judicial Committee, and receives this power as soon as it is conferred on the Judicial Committee itself, and not before.

84. Chairman.] Is not the appeal in the first instance given to Her Majesty in Council?-It is.

85. Her Majesty in Council, when so appealed to, has the power under this Act of Parliament of referring it to the Judicial Committee?-That is so.

86. Till that reference is made, the Judicial Committee has no power, nor have any of its subordinate officers any power whatever to interpose or interfere in any manner in that appeal?-That is so.

87. Mr. Thesiger.] This question was argued before the Judicial Committee, was it not, by counsel on both sides?—It was, on the protest.

88. Did the Committee pronounce its decision immediately after the argument,

or take time to consider?-If I recollect rightly, immediately.

89. Mr. Chancellor of the Exchequer.] That was the protest against the inhi bition?The protest that the inhibition was not issued in due time, under the

statute.

90. Mr. Thesiger.] That is, in fact, the captor appeared under protest to the appeal? -Yes.

H. B. Swabey,
Esq.

11 July 1843.

H. B. Swabey,
Esq.

11 July 1843.

91. The judgment of the Judicial Committee of the Privy Council, decreeing that the inhibition should be relaxed, was equivalent to a decision that the appeal was not in time?—Yes.

92. Chairman.] Will not the appellant, unless Parliament interferes, be deprived of his right of appeal without any laches or neglect on his part, but by accidental delay in a quarter over which he had no control, and which he could not interfere with, and which he could not with ordinary prudence or foresight have guarded against? So far as I am aware of any remedy that lay in his power, he would be defeated in that manner.

93. Mr. Thesiger.] You assume the whole of the question. You say without any laches on his part; do you know any reason why he delayed from October 1840 to July 1841 ?—I humbly think he had a right so to delay.

94. But do you know any reason why he did delay ?-No.

95. Then you differ from the Lords of the Privy Council that there was laches on the part of the appellant ?-I do not see why, if the law allowed him 12 months, he was to be precluded at the end of 11.

96. Viscount Palmerston.] You say he had a full right to delay to the end of the period allowed him by law, but in determining so to delay, did he not take upon himself all the risks which might attend that delay. The party having it in his power to lodge his appeal at any period during those 12 months, is it not the fact, that if he delayed till the end, or till nearly the approach of the end of those 12 months, he took upon himself and was answerable for all the risks which were incurred by that delay, and which might have been avoided, if he had chosen to make his appeal at an earlier part of that period?-So their Lordships have decided.

97. Mr. Chancellor of the Exchequer.] But was any evidence given before the Judicial Committee before they made their decree, or did any inquiry take place before them as to the circumstances which had caused the delay on the part of the appellant between October and August?-No great deal of discussion took place about that; if touched on at all, it was touched very lightly.

98. Was any evidence offered on that point?—The proctor in the cause is here, and I think it would be better to ask him that question.

99. Mr. Darby.] I understood you to say in a former part of your evidence, in explaining the proceedings of the court, that if within the 12 months which were allowed to a party the Privy Council did not sit, that would prevent the party from appealing?-It would prevent him from getting the inhibition decreed, the inhibition being the instrument which he has to apply for and get decreed within 12 months from the date of the sentence.

100. And I understood you to say, that under that Act of Parliament which gives the 12 months, that would prevent him from proceeding on account of want of time?-The Privy Council not sitting would prevent him from getting the inhibition.

101. How is that consistent with your saying now that you think the judgment is wrong as to the time?-I think he ought not to have been precluded on that

account.

102. Captain Pechell.] Was there any reason against an application being made direct to the Treasury?—I have no knowledge of that whatever.

103. Viscount Palmerston.] It appears that 12 months were given, during any part of which the appeal might be lodged; it appears that that appeal when lodged is of no value unless the Council shall meet in time to refer that appeal to the Judicial Committee within the 12 months. You say that the party has a right to choose his own period in those 12 months to lodge his appeal, and that if by choosing the end of that time, he incurs the inconvenience that no Council shall have met between the time of lodgment and the 12 months, he has a right to stand in the same situation in which he would have stood, if, having chosen to make his appeal three months earlier, he had had the benefit of a meeting of the Privy Council; do you mean that it is your opinion that he has a right so to stand?—If a sufficient and reasonable time were allowed for the sitting of the Privy Council, I think that he would.

104. He knowing beforehand that the Privy Council might meet or not, according to circumstances, and having the power of so lodging his appeal as to render it almost certain that the Privy Council would meet, you still think that, if by his delay the appeal was lodged so late, that no Privy Council met, he ought not to bear the consequences of that accident, but is entitled to have a new law passed