Effectively Court reforms blended executive with judicial authority, in order to ascertain that any limit to a judicial function would also appear to limit executive power, and a portion of such authority was communicated to all inferior branches of the system, and thus setting the hierarchy which effectively dwindled the then prevalent “pettyfogging judicial tyranny”.
The Universita` was to be substituted by a Board of three members appointed by the Governor; all public monies were to be paid to the Treasury which required a warrant signed by the governor to expend them; the question of the housing of the poor was also submitted for consideration, as well as the establishment of Public Schools to promote the reading and writing of English.
Such instructions put forward by Maitland and approved by Lord Bathurst were intended as a means of “…gradual advancement in the condition and information of the People, and of identifying their Affection and Interests with the British Connection…”. The above quotation holds its own defence in view of Maitland as a beneficial even though autocratic ruler.
Malta : A Colony in the grip of Plague
Maitland reached Malta on the 4th of October of the year 1813, and assumed Government of a colony of sick inhabitants the next day. It was clear that with the then current situation it would be impossible to effectively govern the Island. Sir Thomas himself, in a Minute he issued held that;
“It will be impossible for me to stir one step or to alter anything till we get out of our present state. I do not like the atmosphere in which we live as we breath very much through a medium of arsenic and brimestone but, I am told, when I get accustomed, it will be quite delicious….We are all shut up in our separate cells, the whole town resembling a great dungeon, with the additional discomfort of Plague and Pestilence and not without a trifling sprinkling of famine if an unheard of price for the necessaries of life is to be considered as bordering on this”
Maitland found himself at logger heads with the doctors on the islands, as these held that the plague depended on the wind currents on the Islands. Maitland refused this theory and was convinced that if the Police force acted swiftly enough to isolate quarantine and supervise the effected areas, the cases of plague would decrease. He commenced in his usual dictatorship system the elimination of the disease; primarily he first removed the more troublesome of the profession from the Board of Health, thus effectively becoming the director of the board and the doctors mere executive officers. Secondly he implemented strict measures to be adhered to be the Police for infested citizens, with the result that by December the plague vectors were only to be found in Citta Pinto.
Sir Thomas Maitland effective measures wiped out the plague in Malta on January 1814, and a Proclamation on the twenty fifth of Janaury of the year eighteen hundred and eighty four was issued as commemoration. However the problems were far from over; the Government Treasury was in due process being further depleted, and as a result of the plague control, and bad prior financial management the Island’s trade was in ruins and poverty was rampant.
Reform of the Law Courts and Education System
Maitland issued Proclamation XV of 1815, and this new Constitution of the Superior Courts of Justice made sweeping changes. The judges who held their positions quamidu se bene gesserint or until such time as they were pensioned, could only be dismissed by the Sovereign. They enjoyed fixed salaries, were forbidden to receive fees or emoluments of any description or to entertain any private applications from suitors or professional persons.
The Consolato del Mare was abolished and substituted by a new Commercial Court, consisting of one of His Majesty’s Judges and four consuls nominated by the General Body of Merchants and subject to Governor approval. The Civil Court consisted of three Halls, the first of which took cognizance of all claims in excess of 100 scudi of in connection with landed property, the second tried all causes of an inferior value, whilst the third was a Court of voluntary jurisdiction. Later in 1822, the Halls were reduced to two in number in virtue of the Proclamation of the 25th of January of 1822.
On judge sat in the Criminal Court without a jury in cases where the punishment provided by law does not exceed a fine of 100 scudi or imprisonment for three years. In other trials, the judges consisted of two, and in case of a stalemate, the Governor appointed three judges of members of the Supreme Court of Justice and, these, after consultation with the first two judges, proceeded to decide upon the sentence which was thereupon promulgated by one of the Criminal Judges in open Court. During any Criminal trial, torture was prohibited, and legislation made it impossible for the Police or a Court to detain any prisoner without accusation of the knowledge of the Government for any length of time.
There was no appeal from the decisions of the Criminal Court but a High Court of Appeal divided into two Halls, was instituted to hear appeals from the Commercial and Civil Courts. The first Hall, consisting of the President, of the Civil Judge and of five Consuls of the Commercial Court, unconnected with the cause in the first instance, took cognisance in the first instance, took cognisance of all appeals from the Commercial Court whilst the Second Hall and on of the Criminal Judges by rotation, took cognisance of all appeals from the Civil Court. The Supreme Council of Justice mentioned earlier took appeals in cases of evident injustice and hardship.
It would seem that this Supreme Council of Justice gives the Governor, being the head of the executive and the only legislative authority in Malta, the right to interfere in the sentences of the Courts, thus contrary to the principles of the then constitution. One may argue that it is like a counterpart of the old Segnatura, which vested in the ancient sovereigns the power of taking cognisance of and reversing the decisions of the Tribunals. Autocratic as it may seem, this Court eventually wiped out the problems of corruption and misleading legal interpretation by judges. No one would ever think of giving a bribe for a decision which is immediately liable to be reversed and no judge will twist the law to his own purpose when he merely suffers the disgrace of having his decision overset the next day. This new system was such a novelty that it could not start in its effects without giving Maitland his fair share of trouble, but in spite of recorded propensity of certain judges to oppose all innovation, and to maintain themselves in the old tyrannical system, he was in a position in a relatively short time to report that the fruits of the legislation were being picked up eagerly by the people at large. This single piece of change in legislation alone was sufficient to raise hopes that by the end of 1814 every vestige of the old government would collapse. The only remaining bastion was the Universita`, what Maitland described as a ‘dunghill of corruption’.
The Universita` was a body enjoying a monopoly in the supply of grain and other necessities, leaving the Government the position of being a great merchant who feeds and maintains the entire population. Maitland unraveled multiple gross discrepancies in claims, an irregular accounting system and an overall negligent management of affairs. The result was that what was supposedly showing to be a credit balance was actually running at a loss. The decision which eradicated this monopoly was that Maitland declared in 1822 the free trade of Corn, and contributing were the government reforms, changing the accounting system, and reformed charitable institutions, in an attempt to pave the path for a sustainable education system.
Maitland tried to prevail upon Maltese mentality of the time and encourage parents to educate their children in England at the Government’s expense, but, except in two cases, the result did not seem too satisfactory, and judging from the exchange of correspondence between Maitland and Bunbury, it seemed that this was one area where the scope of success was limited. A government minute of the 14th of January 1823 illustrates how popular education occupied his attention throughout his reign.
Other Legal Reforms;
Commission of Piracy : On the 1st February of 1815, the Royal Commission instituted a tribunal for the trial in Malta of piratical offences according to the rules and practice of English Courts. Such power emanated from the Sovereign but was restricted by law. The law formerly under a statute of the 11th/12th year of William III held that in a trial of this kind judges possess a double capacity of judges and jurors both with regard to fact and law, however issues of fact were removed from the scenario in virtue of an Act of Parliament, and the whole trial should proceed in the normal form of Grand and Petty Jury. It appears clear that the issue of the Commission of Piracy to Malta meant the introduction of the English system of trial by jury in the Island, limited, however to pirate offences. Maitland was not particulary enthusiastic of this reform; he believed that the Maltese mentality was not yet befitting the beneficial effects of the English Courts, but hoped that this ‘experiment’ would lead eventually to the desired results, and possibly expansion to the whole system and not in such a limited sphere.
Law of Organisation and Civil Procedure : One of the first important amendments to the law of procedure introduced by Maitland referred to the mode adopted for the taking of depositions of persons about to leave the Islands or being aged or infirm in mind. The old procedure left much to be desired, and was contrary to fairness and obstructed substancial justice. Proclamation seven of 1815 provided for Commissioners, to take depositions and provided for a Special Commission to hear deposition outside the jurisdiction of the Islands.
More attention was diverted to the naming and designation of parties to a suit, and furthermore a rigid approach to corrections to any petition lodged was imposed. The Proclamation laid down in detail which sentences or decrees were appealable and provided for a definite timing for the issue of executive warrants, together with precautionary warrants of arrest or impediment against the departure of any ship or person, requiring the creditor to give security to the Court Registrar and to institute proceedings without delay.
Proclamations five and nine of 1815, selected six nobleman to be appointed as civil superintendents on the six districts, and that evidence should be taken viva voce. Proclamation ten of 1822 was also important in the sense that it laid down the criteria for cases which were considered to be as deserted, in order to avoid arrears of cases.
Bankruptcy : Due to the strong mercantile presence in Malta, Bankruptcy Law was given importance early on in Maitland’s period. Maltese law gave no protection to honest traders nor set penalties and punished illicit trading, so much so that the country’s economic trade was withering. Proclamation fifteen of 1815 laid down new and defined rules as to the application of bankruptcy and the rights and duties of creditors and debtors, and also nominated two commissioners for general supervision.
The Public Registry and the Hypothecary System : The new law upheld that no claim of any kind of hypothecary or contractual nature could be substantiated unless the contract from which it emanates is registered in the Public Registry in Valletta and in Rabat, Gozo. A further proclamation upheld that only immovable property was to be bound by hypothec, and a Court judgment shall confer to the creditor the right of hypothec upon the immovables of the debtor, from the date of registration.
Mortmain Law : Acquisition of property by the Church and other Pious Institutions would have the effect of withdrawing disposable land, and Proclamation 23 of 1822 laid down that no lands or tenements were to be acquired by such institutions except and under the express and positive condition that they be sold or disposed of within one year, in default these fall ipso facto under government control.
Sanctuary : In order to remedy certain abuses in the exercise of the right to sanctuary, Proclamation 7 of 1817 laid down that a warrant of arrest could be lawfully executed at any hour, day or night, against any person, who after having taken refuge in the precincts of any church or similar structure, was found beyond the limits of such precinct, except on a Sunday or Holiday of precetto intero.
Appeals to the Privy Council: Proclamation 30 of 1822 paved the way for the securing of the right to appeal to all His Majesty’s subjects and other individuals resident in Malta, and without any limitations, which right was granted after 1823.
Sir Thomas Maitland died on the seventeenth of January 1824, seized by a fit of apoplexy at the house of his friend Mr. Le Mesurier, at Floriana. On the twenty first of the month he was laid to rest at the Upper Barracca, solemnified by a simple cross which covers the mortal remains of a man who whatever his faults did much for the legislative and social improvement of the Maltese Islands.
‘Maltese Legal History Under British Rule (1801-1836)’
Hugh W. Harding B.A., LL.D.
‘British Malta’, Vol.1 Malta Government Printing Office 1938
- V. Laferla
Walter Frewen Lord
T. Fisher Unwin 1897; pg. 24
Secretary of the State, 28th July 1813
In a letter of the 15th of August 1814, the Under-Secretary writes: “ No application will be made to the Court of Palermo regarding pretended suzerainty: all the Powers of Europe acknowledge the King’s right to Malta and have recognised that island as forming part of the British Dominions”.
Prior to this the practice was that benefices were filled by alternative nomination of the Pope and of the Bishop of Malta.
Consisting of its President, of one of the Civil, and one of the Criminal judges.
Consisting of the Governor, the Public Secretary and two judges
Correspondence letter dated 9th April 1915
Maitland also sought to encourage the study of the English language, in accordance with the directions of the secretary of state he laid down that no one could be permitted to act as an Advocate, Notary or Legal Procurator unless he could read, write and speak english. All petitions addressed to the Government were to be written in English, which also was the language of government contracts; government posts would also be preferably filled by such who knew English – Minute 17th May 1820
Two English and two Maltese Commissioners for Malta, and One English and One Maltese Commissioner for Gozo.
Proclamation I of 1822
The actual proclamation limited the appeals to amounts equal to or inferior to 1000 sterling.