HL Deb 16 June 1857 vol 145 cc1870-4
LORD MONTEAGLE

begged to ask the noble Duke, the Postmaster General, what were the intentions of the Government with reference to the recommendation of the late India Law Commission—namely, that the Sudder and Supreme Courts should be amalgamated? The project had been long discussed, so far back even as the time of Lord William Bentinck, and it was his impression that Sir Charles Wood, in 1853, had given a distinct pledge that such an arrangement would be carried out.

THE DUKE OF ARGYLL

said, that he should not at present go into the question of amalgamating the two Courts—he should simply state the course which the Government intended to pursue. In so doing, he should say a few words in reference to an accusation brought by the noble Lord against the Government last night, at a time when there were only four Peers present. The majority of the Peers now present might not be aware that the noble Lord now asked this question after having brought against the Government a specific charge of breach of faith with Parliament—an accusation which he now repeated. Now, he (the Duke of Argyll) could show that no pledge whatever was given by Sir Charles Wood on the occasion referred to. In 1853, on the introduction of the last Bill for the Government of India, Sir Charles Wood said that he was anxious that some improvement of the law courts in: India should be embodied in the Bill; but, after consulting the law officers in India, he found that many previous steps would be necessary. An intimation was made of the opinion of Government, but no sort of pledge or promise given to proceed by Imperial legislation. The course the Government took in the matter was this—the question had been referred to the law Commissioners. They only made their Report in July of last year, and that Report contained a recommendation in favour of the course proposed by the noble Lord. The question then arose before the Board of Control whether the measure was one for decision in this country, or whether it should be referred to the Legislative Council in India? His right hon. Friend the President of the Board of Control determined to refer the Report to the Legislative Council in India—a step with which the Court of Directors had nothing to do, and his right hon. Friend was perfectly prepared in the other House of Parliament to defend the course which he had taken. It was a step not in the slightest degree inconsistent with any pledge or promise given to Parliament, and still less inconsistent with any of the provisions of the Bill to which his noble Friend had referred. At present he (the Duke of Argyll) gave no opinion on the matter. It should be remembered that the recommendation of the Commission was not unanimous—it was only carried by a majority. He must distinctly deny another statement made by the noble Lord, that the Government had broke a pledge which it had given on the subject of the Education for the Civil Service in India. His noble Friend stated that a pledge was given to Parliament by the Government of the day that the civil servants should have a legal education in this country before they proceeded to India, and to prove that pledge he cited a Minute of Mr. Macaulay which recommended that the civil servants should undergo two years' study of the law in this country, and that their proficiency should be tested by a second examination. Now, it was true that Mr. Macaulay did recommend a second examination upon legal subjects, but the noble Lord suppressed the fact that, since that Minute, Mr. Macaulay had expressed a contrary opinion, and that the opinion was embodied in papers presented to Parliament. The noble Lord should have stated that the Government itself had given notice of what he called their breach of faith, and had given its reasons for this change of opinion. The noble Lord might, perhaps, not know of the papers, but they were perfectly accessible to all. That paper was presented to Parliament about a year ago, and gave reasons for dispensing with the second examination. He had sufficiently made out that there was no breach of faith in the course taken by his right hon. Friend, but that it was perfectly in accordance with the opinions of those who first made the recommendation. Their Lordships would see that there were great difficulties in the way of affording in England a legal education to the civil servants of the East India Company. No system existed for the professional education of our own lawyers, and if the first recommendation of Mr. Macaulay had been carried into effect the result would have been that, the young men intended for the Indian Civil Service, after the completion of the education specially fitting them for the East, would have been obliged to waste one year and a half in England without making any real advance in the knowledge of the law. At the same time the President of the Board of Control had not abandoned the hope that at some future time a better legal education might be given to the civil servants of the East India Company.

THE MARQUESS OF CLANRICARDE

wished to know if he understood the noble Duke correctly, that the whole responsibility of adopting or rejecting the Report of the Commissioners was to be thrown upon the Legislative Council of India, which in other words meant the Governor General, because, if so, a more unfair responsibility could not be cast upon any high public functionary. A Commission, consisting of the highest legal authorities, had made a distinct recommendation, and prepared a plan for the amalgamation of the two courts, and after Parliament had received that announcement, and by their silence approved of it, to cast upon his noble relative the Governor General the responsibility of saying whether or not the recommendation of the Commissioners and of a former Governor General should be adopted or overthrown, and to be answerable for the consequences, was to in pose upon him a moat unfair and invidious duty.

THE EARL OF ELLENBOROUGH

thought that the President of the Board of Control would find no difficulty in defending his conduct before the House of Commons if it were questioned, because he had submitted the amalgamation of the Sudder and Supreme Courts to the Legislative Council. For what purpose had Parliament created the Legislative Council, consisting of the Chief Justice and another Judge and a representative from each, subordinate Government, if it were not intended to place confidence in it? The Legislative Council had not absolute authority, but it had the power of advising on the most important questions; and this was a question upon which the Legislative Council alone was capable of giving a satisfactory decision. He trusted that no desire to amalgamate the two courts would induce Parliament to override the Legislative Council of India, as it was the interest of all persons in this country who desired to promote respect for the Government of India to uphold its authority. With respect to this particular question, as far back as 1829 he entertained a strong impression that great advantages would arise from the union of the two courts. He recollected putting a question about that time to Mr. Elphinstone, the sole remaining great man of India, upon the subject, and if their Lordships would take the trouble of referring to Mr. Elphinstone's answer, he thought they would, perhaps, be disposed to entertain some doubt whether it would be perfectly free from danger to make that amalgamation at so early a period as seemed to be desired.

LORD MONTEAGLE

said, that in November, 1853, Sir C. Wood expressly required the Commission to continue their Report; the Commission had done so, and their Report was favourable to the plan he proposed. If this was not giving a pledge, he was at a loss to conceive what the power of words was. One of the Commissioners—Chief Justice Jervis—had retired from the Commission because he thought the Government was using it for the purpose of postponing the measure.

THE EARL OF ELLENBOROUGH

referred the noble Lord to the Act called the last Charter Act, by which power was given to the Legislative Council of dealing with all courts of Justice, whether established by charter or not.