HL Deb 15 June 1857 vol 145 cc1743-57
THE MARQUESS OF CLANRICARDE

rose to move for certain papers relating to the police system and the administration of criminal justice in Bengal. The first paper was an important document, written by the Lieutenant Governor of Bengal, Mr. Halliday, so far back as April, 1856. The purport of that paper was known in Calcutta very soon after its official presentation, and was known in this country last autumn; and he apprehended there could be no objection to its production, because it had already been ordered to be laid before the other House of Parliament; but the East India Directors had, in February last, upon the back of a return, declared that they had no cognisance of such a letter. Whether the statement was strictly or only literally true, it was equally disgraceful to the East India Directors, who had been wanting in their duty if they had not made themselves acquainted with an important document which was known to many people in this country, as well as to every one at Calcutta. The other paper which he intended to move for was a despatch written by the East India Directors in September last to the Governor General, in which the question of police and the administration of criminal justice were treated of. That paper had already been laid before the other House, and he presumed there would be no objection to its production in their Lordships' House. The administration of justice in India was no new subject of complaint. When a noble Earl opposite (the Earl of Ellenborough) was Governor General, he pointed out to his Council the necessity for taking immediate steps to put it upon a more satisfactory footing, and he made a variety of suggestions for the improvement of the police. From that time to the present the subject had repeatedly been brought under the notice of the authorities. There had been petitions from Natives, from Europeans, from all classes in India, and now at last out came this paper from the Bengal Government itself. It contained several admirable recommendations; but, instead of ending by instructing the Governor General to carry those recommendations into effect, it merely desired him to take the subject into earnest consideration, and, after communicating with the other Presidencies, to report to the Court of Directors his opinion as to the expediency of a reorganization of the police throughout India. At this time of day that was a perfect mockery in the way of reform, because the subject had long engaged the attention of every one connected with India, and repeated remedies had been pointed out. The President of the Board of Control stated the other evening in the House of Commons that the time for inquiry had passed, and the time for action arrived. Why, then, did the right hon. Gentleman not act if the Court of Directors declined to do so? Why were the latter allowed to interfere on all occasions and prevent the adoption of much-needed reforms? He might be told that something had been done to improve the criminal jurisdiction in India. There was, indeed, a Bill now before the Legislative Council, having for its object the improvement of criminal procedure in India; but, as far as he was informed, this Bill had no reference to the police, who acted in some respects in a judicial capacity, and who, as the Court of Directors were aware, too frequently made their office the means of corruption and oppression. The professed object of that Bill was to apply one uniform criminal code to the whole of India; but that measure, so far from giv- ing content to any class in India, had excited the most profound dissatisfaction alike among Natives and Europeans. He held in his hand official authority for that statement. The Legislative Council, which sat as a Parliament to discuss measures that were brought before it, had an authorized report of its debates, and he held in his hand an Indian paper, part of which, in the style of some foreign journals, was headed "Official." Under that title he found the report of a debate upon the Bill for the codification of the criminal law. Sir Arthur Buller was represented as saying that the Bill had excited the greatest alarm among the Europeans, who were indignant at its being proposed to place them under the Company's Courts; that their dissatisfaction was justified by the disgraceful state of the courts in question, and that he intended to propose the exemption of all Europeans from the operation of the Bill until the courts were reformed. The Chief Justice endeavoured to combat the arguments of Sir Arthur Buller; but he practically came to the same conclusion—that it would be monstrous to subject the Europeans to the jurisdiction of the Company's Courts in their present state. What had still further embittered the feelings of the mass of Europeans was that all the servants of the Company were to be exempted from the operation of the Bill. The truth was, however, that the reform had been begun at the wrong end. The chief fault lay not in the laws, but in the personel of the courts. The Judges were men without legal qualification. He did not mean to say that there never was a Judge of high character and attainments in any of the Company's Courts. Such a happy accident had happened more than once. But, on the whole, the Company's Courts, from the highest to the lowest, were not so constituted that any one had or could have confidence in them. As a proof, it was only necessary to say that out of 332 persons convicted in Sessional Courts, presided over by two of the Company's Judges, 148 were acquitted on appeal. The Bill now before the Legislative Council was, in fact, a Bill for establishing an improved code of procedure, and for that object, it was an excellent measure. But they could not make a good court without a good Judge. It was not the code of laws, but the administration of that code, which afforded dissatisfaction. The code administered with so much honour and dignity by his noble and learned Friend the Lord Chief Justice of the Queen's Bench would not give satisfaction if it were administered by Commissioners of Inland Revenue. When it had been stated by a magistrate in India, who was as amiable, just, and honourable a man as ever lived, that his fellow-magistrate refused to concur in an order because it would be disagreeable to the Government—when, upon the same authority, it was stated that a Judge of the Supreme Court had been instructed in the views of the Government upon a case which was about to be submitted to the court—when it was notorious that corruption prevailed, it was no wonder that Europeans would not go before those tribunals, and it became the duty of the British Parliament to interfere. After admitting and dabbling with the grievance for twenty-five years, the Government had remitted the whole question to the Legislative Council of India. But the Legislative Council ought not to supersede the British Parliament, and he asked for a copy of the instructions sent by the Government, in order to see whether the Government had empowered the Legislative Council to pass any Bill they might please, or imposed upon them the necessity of adopting a particular code. There were two obstacles to any real reform of the courts of India. The first and principal obstacle was the monopoly of the civil service, and the second was the condition of Indian finance. Upon the question of the close civil service he would refer, for illustration, to two cases. In the Indian News there appeared this paragraph:— Considerable dissatisfaction has arisen among the members of the civil service in consequence of the reported elevation of Mr. Raikes to the Suddar Court, he never having been a judge, and having served several years in the Punjab, which is a non-regulation province. The officers who administered justice in the non-regulation provinces were not guided by a regular Company's Court, or by any code at all, but only by "equity and good conscience," and it was stated on high authority that justice was best administered in the non-regulation provinces. There were no Company's Courts, no corrupt officials, none of the machinery of the Company's Courts, and consequently none of the chicanery which distinguished them. Mr. Raikes might be the most learned man in India, but the civil servants were dissatisfied with his appointment, because he had served seve- ral years in the Punjab, which was a non-regulation province. He might refer to a still stronger case, that of Mr. Brown, who was a Commissioner in a district not far from the Santhal country, and who he (the Marquess of Clanricarde) had heard had been hardly treated. That gentleman had been discharged from his office on the ground of the "injudicious character of his measures, the misapprehension of law and practice exhibited in his investigations and correspondence, the indications of a disturbed and unbalanced state of mind, and the absence of all self-possession." It was stated that Mr. Brown had been twenty years a Commissioner, and if the account of him which had been just quoted were true, he could not have been studying law during that period; yet, would the House believe that a recommendation had been sent out by the Court of Directors that the very man who had been dismissed from his functions as a Commissioner for the reasons which he (the Marquess of Clanricarde) had related to their Lordships, should be appointed a Sessions Judge upon the recommendations in his favour of the Court of Directors? Nor was that all. The gentleman in question had actually been told that he might look forward, if he wished it, to the appointment of a Civil and Sessions Judge on a vacancy occurring; so that eventually their Lordships might find the man who had been declared to be so incompetent as to justify his removal from a former office, which he had held for twenty years, presiding in a judicial capacity over the lives and property of his Asiatic fellow-subjects. But the present system not only led to the appointment of indifferent and ignorant judges, but it prevented the appointment of those who were competent. He would mention a case in respect to which he should expect to hear some explanation. A high judicial office having become vacant, it was offered by the Lieutenant Governor, Mr. Halliday, to Mr. Riley, a learned gentleman eminently qualified for the Bench: every one admitted his fitness for the office, his high honour, and his perfect capability; but he was not a covenanted civil servant, and after he had been nominated, by the Lieutenant Governor, Lord Dalhousie did not dare to ratify his appointment. The result was, that another person was appointed; but objection was taken to him on the score of incompetency. In reply to that objection, which could not be disputed, it was asked, who among the covenanted civil servants would be found better qualified? and that gentleman, a civil servant, in spite of that protest against him on the admitted ground of incompetency, was put into the position of a Judge, to deal with the lives and I property of the population, although a much fitter man, but not in the civil service, had been previously appointed to the office. Would such a proceeding be tolerated in this country by the British Parliament for a single moment? Would it be tolerated in the smallest of our colonies? But it was said that, in the present state of the finances of India, the Government could not afford the necessary expense that would be incident to a change in the existing system. To withhold money for carrying out so essential an object as that, was the worst possible economy. The uncovenanted and the Native Judges were grossly underpaid; the salaries of some were as low as £180 a year. Was this the way of maintaining either the independence or the proper dignity of the judicial office? yet, to what other means were they to look for a restoration of the finances of India, if it was not to the establishment of an effective system of administering the law all over the country, without regard to the monopoly claimed by the covenanted? They could not increase the taxation in that part of the British dominions; that had been acknowledged over and over again. On what condition, then, could we retain and perpetuate our dominion there? It could only be by encouraging and fostering British enterprize and skill, and stimulating the employment of British capital in that direction, so that their united influence might permeate through all the institutions of the country, and call forth all its varied resources: but, at present, they were, by the state of the police and of the law courts, deterring Europeans from going there, and it was only to them that they could look for any rational prospect for developing the capabilities of the country. He therefore implored their Lordships to take those things into their consideration. At present they had every class in India against them. He defied them to point to any class in a worse condition than the peasantry. The people, indeed, were in the lowest state of poverty; the existing tenure of land ground them down, and the police system oppressed them; and their Lordships might be as- sured that men would not embark their money, their enterprise, and their energy in a country where they knew they would be robbed and plundered with impunity so long as those iniquitous courts continued to hold sway over the country. In truth, nothing could perpetuate for a moment the existing state of things but the double government of India, which interposed a screen between the power of Parliament and that country. He trusted that the discussion which the subject had undergone would be the means of rousing Parliament from the apathy with which it had hitherto regarded this subject. The noble Marquess concluded by moving— That there be laid before this House, Copy of the Minute, dated April, 1856, of Mr. Halliday, Lieutenant Governor of Bengal, upon the State and the Administration of Criminal Justice in that Presidency: Also, Copy of a Despatch, dated 20th September, 1856, from the Court of Directors to the Governor General of India upon the same subject: And also, Copies of the Correspondence between the East India Company's Directors and the Governor General of India respecting the Introduction to the Legislative Council of the Bills for the Improvement of the Law in India now under Consideration.

THE DUKE OF ARGYLL

said, that the speech of his noble Friend was very much a repetition of that which he had addressed to a former Parliament about two months and a half ago; and upon that occasion it had fallen to his lot to endeavour to show to their Lordships that whatever ground there might be for complaint upon matters of detail as regarded the state of the judicial establishments, of the police, and of those other matters connected with the internal administration of India, his noble Friend had not made out any case for organic change in the system of the Indian Government. He would not on the present occasion go over the same ground again, but he would endeavour to notice shortly some of the points to which his noble Friend had alluded. It was certainly true that the Minute of Mr. Halliday of the 6th of April, 1856, was not yet in the official possession of the Government; but that fact could not support any accusation of carelessness or indifference against the Court of Directors. If any such charge could be brought—and he denied that any could fairly be brought—it would be against the Government in India; but he did not think that his noble Friend would believe that Lord Canning or the Legislative Council of India had any particular object in withholding that document. The facts of the case lay within a small compass. Shortly after the appearance of Mr. Halliday's Minute a petition had been got up by the missionaries in Bengal, founded both upon the statements contained in that Minute and upon their own knowledge, praying the Government to issue a special commission to inquire into certain grievances which they alleged to exist in Bengal. The Government of India, thus called upon to form a decision, immediately came to the conclusion that it would be extremely imprudent and useless to issue such a commission, and a Minute was drawn up by Mr. Halliday, another by Lord Canning, and another by another Member of the Council, stating the reasons upon which that decision had been come to. That Minute the Home Government had been placed in possession of; but the previous Minute of Mr. Halliday had not yet been placed in their possession, probably because the Indian Government were preparing to act upon it, and it would not be possible to legislate upon it at home. Then again, his noble Friend, in reference to the police, had quoted some statements from a despatch with a view of showing that the Government were aware of its inefficiency, and he had also insinuated that there was a contradiction between the language of the despatch and that which had been used in another place by the President of the Board of Control. As to the efficiency of the police, he believed that he had said enough in the way of admission upon that subject on a former occasion; and as to the apparent contradiction, what was the real state of the case? It was true the paragraph from the despatch dwelt upon the expediency of inquiry, and the President of the Board of Control stated that the present was not the time for inquiry but for action. But his noble Friend had overlooked the fact that the inquiry and the action referred to two entirely diffierent questions. His noble Friend must be aware that the question of police was a very large question, and one with regard to which many different opinions existed. It was thought by many persons that the police force of India should have a military organization which should extend over the whole of India; and therefore the reason was obvious why the Government at home should have directed the Indian Government to inquire into the subject and consult the authorities in the different Presidencies upon it. But the inquiry refused by the Indian Government, which the Board of Control considered them justified in refusing, was one of a much more vague and general kind, embracing every cause of evil in the social condition of the people of Bengal. His noble Friend had referred to a statement made by him upon a previous occasion to the effect that measures were under the consideration of the Supreme Government with reference to the judicial system, the police, and the law relating to landlord and tenant, and had expressed his belief that he had been mistaken in that statement. Now, he would tell their Lordships the authority upon which he had spoken. In a Minute of Mr. Halliday, of September, 1856, it was stated that the questions of the police and of the judicial system were under the consideration of the Government, and that measures relating to those subjects would in all probability be presented to the Legislature; and in a subsequent Minute the Governor General stated that, with regard to the improvement of the police and judicial system, matters were ripe for action; as also with regard to the law of landlord and tenant. He was not aware whether those Bills had been since introduced, but he thought that he had been justified in stating that measures were being prepared by the Government, and were likely shortly to be submitted to the Legislative Council. His noble Friend had referred also to the criminal code. It was quite true, as had been stated by his noble Friend, that the Commission of 1853 had recommended a criminal code for the adoption of the Legislature, and his noble Friend had appeared to blame the Government for referring that code back to India, instead of proceeding at once to legislate upon it. Now, for his own part, he could not take blame to the Government for thus acting, because it appeared to him that that course was a wise and prudent course. Then his hon. Friend said that it was clear that the Indian Government were aware of the inefficiency and corruption of their own courts, because, although they wished to subject other Europeans to the jurisdiction of the Company's Courts, they exempted their own servants. Now the Commission recommended that British subjects should be under the same judicial system; but they recommended, also, that the civil servants of the Company should not be subject to those Courts. But the real reason for that exemption was to avoid suspicion of partiality, and it was thought better that one class of the servants of the Company should not be liable to be judged by another class of their servants. It was important to remember that the strongest statements referred to by the noble Marquess and others who thought with him upon this subject were furnished by the Minute of Mr. Halliday, the present Lieutenant Governor of Bengal. If the Indian Government was ignorant of these facts, or sought to conceal them, there might be reason to fear that no remedy would be provided, but when it was seen that the Lieutenant Governor of Bengal, a gentleman who was examined before the Committee of 1853, and made a very favourable impression upon their Lordships, was giving his serious attention to the evils which affected the people of that province, and had sent home a Minute stating that he was about to recommend to the consideration of the Legislative Council measures for their amelioration, he (the Duke of Argyll) could not say that he saw any ground for fearing these evils would remain un-dealt with. With the various instances mentioned by the noble Marquess he was, of course, unable to deal, having had no notice of them; but he certainly could not understand that remark of his noble Friend that all the evils of the judicial system in India arose from the closeness of the civil service; because, whether wisely determined or not, one of the results of the deliberation of Parliament in 1853 was the declaration that the appointments in the civil service should be thrown open to competition, and that provision had ever since been faithfully acted upon. It was thought that the general calibre of the civil servants of the Company would be improved by admitting the element of competition throughout the whole extent of the service. At the same time the noble Marquess must know that from the enormous extent of the territory, the administration of justice throughout British India was a matter of extreme difficulty. No doubt the advice of his noble Friend that men possessing the education of English lawyers should be dotted about all over the country was very good; but they would make an immense addition to the expenditure. He admitted that it was the first duty of every Government to provide for the effective administration of justice in every country over which it exercised sway. But, it must be remembered, that even at home the whole justice of the country was not administered by a high class of legal Courts. A great part of the criminal justice of this country was administered by country gentlemen with no special legal education. Justice might often be done between man and man by the exercise of common sense on the part of the magistrate, although he might not have much legal knowledge. Still, as the Government of India stated that a measure was in contemplation, and, indeed, had been actually prepared, for the amendment of the judicial system of that country, they ought to wait for that measure before they passed a sweeping condemnation of the whole system. There was no objection to produce such papers and correspondence as they had, but the Government could not produce Mr. Halliday's Minute and some other documents, because they were not in their possession.

LORD MONTEAGLE

said, that as far as he could follow the speech of the noble Duke, it contained nothing but the old cry of "wait." If he were as hopeful as the noble Duke, he would have no objection to take his advice and "wait" for the remedy of those evils of which his noble Friend had complained. Unfortunately, however, that was the advice which was always given in relation to Indian affairs, and our "waiting" had always ended in disappointment. The noble Duke said the intentions of Parliament, expressed both in the Charter of 1833 and in that of 1853, had been faithfully fulfilled. Was that really so? Why, as long ago as 1833 complaints on this subject had been rife, and at that period so loud was the cry that the Government of the day inserted a clause in the charter which struck a blow at the monopoly of the Directors by providing that on the occurrence of every vacancy there should be four candidates nominated by the Directors, of whom the most deserving should be appointed. But the Company contrived to render that utterly nugatory, so much so, that when some time after a demand for examination was made and refused, though the lawyers consulted gave it as their opinion that the right to demand the fourfold examination, as it was called, was imperative, and could only be set aside by Parliament, it was yet disregarded by the Company, and precisely the same monopoly as respected the appointments was preserved. The Charter of 1853 opened the Civil Service, so far as Act of Parliament could effect it, and abolished the distinction between covenanted and uncovenanted servants. Had it been acted upon? No such thing. Had they forgotten the case of Riley, stated by the noble Marquess, in which preference was given to a servant purely because he was a covenanted servant, though he was admitted to be incompetent for the vacant post, while at the same time a competent person was excluded? Was not that a violation of the plighted faith of Parliament? The noble Duke could not surely have forgotten the discussions which took place in the House upon the question of covenanted and uncovenanted servants, and that it was the expressed pledge of the Government that no such monopoly should prevail in future. It was in direct contradiction of the Act of 1833 that the old monopoly was maintained. Further than this, subsequently to the passing of the Act of 1853, there was laid on the table a remarkable Minute, supposed to have been framed by Mr. Macaulay, which laid down a very enlarged system of education for the civil service. According to this plan, young men going out to India were to spend two years in England, during which time they were to complete the European branches of their education, and more especially their legal study. They were to attend and prepare reports of the proceedings in our courts of justice, especially before the Judicial Committee of the Privy Council, and were otherwise to prepare themselves for the discharge of judicial duties. Before final appointment a subsequent examination was required, to show how the two years of probation had been spent; and it was anticipated that by the infusion of educated men, the general administration of justice throughout the country should be improved, and so put an end to a system under which it was the practice of the Company to send out young men entirely ignorant of judicial proceedings and without any sufficient legal knowledge whatever. That Minute—for which, at the time, the Government took great credit—had been trampled under foot with the same unconcern, with the same daring disregard of engagements entered into, as had been exhibited towards the Charters of 1833 and 1853. Yet he was now told to wait, and it was suggested that the Government of India and the Legislative Council were to be confided in. Now he would give one other instance which would show how unworthy of confidence that Government was, in regard to a matter as deeply affecting the welfare of India as the proper administration of justice in that empire. If there were one mode of obtaining judicial reform in India to which Government was pledged, and which Parliament had unequivocally sanctioned, it was the amalgamation of the Sudder Courts with the Supreme Court. That question was agitated as early as 1829, and all the witnesses, among whom were some of our most distinguished statesmen, were agreed upon the point. It was thought that it would be a great advantage to combine the knowledge possessed by the local Judges with the strict rectitude of the English superior Judges. They had heard of the reputation of Mr. Halliday, than whom no public servant was more worthy, and he, in 1853, expressed his opinion that the amalgamation of the Sudder with the Supreme Court would be most advisable, and that the addition of good English lawyers to those inferior courts would effect a great reformation in the administration of justice in India. Sir Edward Ryan, who had served as Chief Justice of the Supreme Court, fully bore out the opinions of Mr. Halliday. It was adopted and recommended by the Law Commission, composed of some of the best and wisest men. Their Lordships recollected how the inquiry ended, and how utterly futile were the labours of those who took part in it. Yet it was productive of some good, because it led the then President of the Board of Control (Sir C. Wood) to state that it was the intention of the Government to propose an Amendment in the constitution of the Indian courts, consolidating and improving them by the introduction both of the Queen's and the Company's Judges, and also providing that in some cases the Judges in India should finally decide the appeal. He, however, said that a Commission would be appointed to draw up a code of procedure, and that until the Report of that Commission had been made, the proposal would be suspended. A Commission was accordingly issued, consisting of Sir J. Romilly, Master of the Rolls; Sir John Jervis, late Chief Justice of the Common Pleas; Sir Edward Ryan, late Chief Justice in India; Mr. Lowe, Mr. Cameron, and others. They reported in favour of the junction of the two courts, and Sir Charles Wood had pledged himself to carry their recommendation into effect; yet no one step had been taken in that direction. It was not wonderful that suspicions should be entertained of references to India after the experience they had had of the battledore and shuttlecock manner in which Mr. Macaulay's original code had been tossed to and from India. The late Chief Justice Jervis, indeed, seeing the manner in which the Government were disposed to play with the question, when called upon to sign the third and fourth Reports, refused to sign it. "I consented to act on the Commission of Indian Law Reform," he said, in justifying his refusal, "on the express understanding that we were to endeavour to frame a code for all India. With that understanding, I applied myself to the duty; but if I had supposed that the Commission would be used to postpone legislation, that the subject would ultimately have been referred to India, I should not have consented to act. Considering that a slight has been cast on the Commission, I decline to take any further part in the proceedings of the Commission." This was a question that required the decision of the home Legislature. The Supreme Court of India was created by statute, and by statute alone could the evils complained of be remedied. He held in his hand a petition signed by Natives of the highest eminence and respectability in Calcutta, in which they prayed for an infusion of the influence of the Queen's Judges to guide and control the Judges appointed by the East India Company. This was not surprising after what had been laid down in the Report of Mr. Halliday, and he felt bound to say that had we opened our eyes sooner to the great evils that existed, a remedy might ere now have been provided. Wait, wait! is the reply of the Government. Had they not waited as they had done they might have obtained a speedy and effectual remedy for the state of affairs that now existed. The experience of the shifting and delays on the torture question was alone sufficient to induce him to express a hope that those interested would not wait longer. He should not raise any question that evening calling for the decision of the House, because he should wish to enter into a full examination of the whole of the Report of the Commission, and the whole of the system of which the Native petitioners complained; but he gave notice that at the next sitting of their Lordships he should inquire whether there was any intention on the part of Her Majesty's Ministers to keep their plighted word, by carrying these improvements into effect; if so, when the House might expect them to do so?

THE EARL OF ALBEMARLE

said, he had three very important petitions to pre- sent from European and Native inhabitants of the province of Bengal, all relating to the subject which his noble Friend had brought under the consideration of the House; but the question was one of such vast importance that he felt it impossible to do justice to the case of the petitioners now. He was glad, therefore, that they were soon to have another debate on the subject of India. During this Session he had been very chary of bringing forward Indian grievances; but he must say that, regard the question of India from what side he would, it was one that almost filled him with despair. He was glad to have the present Lieutenant General of Bengal as a coadjutor in this work. One short sentence in his Report had produced the greatest effect on his mind. He said, alluding to India, "Here, the strong prey universally on the weak." Their Lordships were probably all familiar with the spectacle of a drop of dirty water as seen through the medium of the microscope. The animals brought to light were very small, but they were preying on each other—the strong universally preying on the weak. This was an epitome of the Government of India, while the Government at home looked on and did nothing.

After a few words from the Marquess of CLANRICARDE,

Motion, as amended, agreed to.

House adjourned at Eight o'clock, till To-morrow, Four o'clock.