§ Mr. Humeadverted to a provision contained in the bill, by which the Recorder of Prince of Wales's Island was liable to be removed from his situation, at the pleasure of his majesty. He wished to know, why the person appointed to the Recordership should be placed in a situation different from any other judge? Other judges held their appointment for life, unless they behaved improperly in office; and so ought the Recorder of Prince of Wales's Island.
Mr. Wynnsaid, the provision in question was not a new one, but was strictly in conformity with the act or charter under which a recorder had been originally appointed. He wished now to state the reason why an alteration was made in the payment of the judges. The salaries of the Madras judges had formerly been paid in pagodas, at 8s. the pagoda. That mode of payment had for some time been discontinued, and the salaries were paid in rupees. But, it was found that the quantity of silver to be obtained for the rupee was not equal, in proportion, to that which could be obtained for the pagoda, by which the judges sustained a loss. A memorial stating that fact, was laid before the Indian government, who, having submitted it to the proper authorities, determined on their report, to make the alteration. It was also thought better to pay the salaries in the local currency, rather than in British currency.
§ Mr. Humesaid, he objected to the appointment of a judge who was removable at pleasure. If the right hon. gentleman could show him any charter in which such a provision was to be found, he would be satisfied—not of the propriety of the thing, but that it was not a novelty. Such a system was most dangerous, since it tended to shake the independence of judges, who might act according to the dictates of those in power, for fear of losing their situations. The House, perhaps, was not aware, that Indian governors had sometimes punished even jurors, because they had done their duty. In one case, because a jury had acted contrary to the feelings of sir G. Barlow, that individual had displaced every man who sat on it. If a judge were also liable 587 to the visitation of power, he would be placed in a situation where he might find it beneficial to his interest not to perform his duty. Therefore he wished that part of the clause by which the judge held his office during pleasure to be omitted. It would not be forgotten, that at a former period sir H. Gwillim had been removed from Madras, in consequence of a dispute between him and the government. That individual was not allowed to state his opinion as to the law of the land. But, from that day to this, the custom of removing at pleasure, was not, he understood, permitted.
Mr. Wynnsaid, that the words of the act or charter of 1807 were followed in this bill. That charter, which appointed a recorder for Prince of Wales's Island, provided that the individual should hold the situation during his majesty's pleasure.
§ Mr. Humesaid, he would be satisfied if the right hon. gentleman would state that this bill made no alteration in the general law, and that the Indian judges were to be placed in the same situation as those of England ["no, no."]. Then, he contended, it was a question which called for the most serious consideration. The system of intimidation was carried to such an extent, that no man who differed from the government could hope to escape proscription; and the degree of despotism to which the executive power in India had arrived, was unexampled, even by that of the Stuarts. Many persons had been banished; and, within the last month, two indigo planters had arrived in England, having been deported from India without notice or trial. It became the duty of the House to consider whether such a system ought, or could safely, be allowed to endure. The half-castes were not allowed to sit on juries, and yet they were allowed to hold land; while Englishmen, who possessed the former privilege, were wholly precluded from the latter. It was quite necessary that some system should be established for securing the independence of the judges in India, and interposing the protection of a jury between British subjects and the public authorities.
Mr. Robertsonsaid, that any alteration in the law, as far as regarded the judges, appeared to him unnecessary.
Mr. Wynnsaid, that the judges were in fact independent of the local authorities, and could only be removed by the Crown. 588 He admitted the possibility of disputes arising between the judges and the governors; but even in such cases the difficulty, almost the possibility, of bringing over the witnesses necessary for investigating them, rendered the exercise of a discretionary power necessary. He would be quite ready to give his attention to any measure which should propose a practical remedy to the existing defects.
§ Sir C. Forbessaid, it was impossible that the people of India, having the knowledge they had of the blessings and spirit of the British constitution, could long endure the tyranny of their governors. He thought the natives of India were not less entitled to protection than any other British subjects.
§ Mr. Sykessaid, it was quite clear, notwithstanding what had been asserted, that the judges in India were not as independent as those in England, and that nothing could be more objectionable than that any confusion should exist between the executive and judicial authorities.
§ Dr. Phillimoresaid, that the judges were removable at the pleasure of the Crown, but not at the pleasure of the local government. He thought there was great wisdom in retaining this power for the Crown; because the distance between this country and India, rendered it impossible that a prompt inquiry should be had into cases which might arise, and which might require an immediate remedy. If any alteration were necessary, it must be provided for by another bill. The one now under discussion contemplated nothing but a change in the judges' salary.
§ Mr. Humehad no objection to the judges' salaries being raised, but, he complained that the most important interests of India were neglected, while such paltry considerations as these occupied the attention of the House. The governors acted as umpires over the judges, who were therefore not independent. The half-castes, though much more numerous than Englishmen, were degraded and deprived of the right to set upon juries. The hon. gentleman read an extract of a letter from India, setting forth the evils of the present system; and concluded by asserting, that it was necessary to restrain, without delay, the power which the governor at present possessed, of transporting any individuals who might become obnoxious to him.
Mr. Wynnasserted, that the judges of India were as honourable and independ- 589 ent as any in this country. The greatest care had been taken in their selection; and in their subsequent conduct they had never shown themselves subservient to the power of the governor. The power of deportation was granted by the last charter. When it should again come to be considered by the House, it might be restrained in such a manner as the circumstances might authorize.
§ Mr. Humehad no doubt of the ability of the judges in India, but they ought to be as independent as they were able. He suggested the appointment of a temporary judge in cases of vacancy, in the same manner as was provided in case of vacancy among the members of council.
Mr. Wynnsaw several objections to the proposed change. He had never heard of the case of the Indigo planters to which the hon. gentleman had alluded.
§ Mr. Humeobjected to the clause, empowering the authorities of India to transport offenders to Prince of Wales's Island, or any other place to which they might at present be sentenced, because the climate of that island was such as to ensure the death of almost any European who should be condemned to hard labour there.
§ Sir C. Forbesproposed, that the salaries of the judges should be raised from 58,000 to 60,000 rupees, and moved an amendment to that effect.
§ Sir C. Coleseconded the amendment.
Mr. Wynnsaid, that the great loss of life rendered it necessary to offer every temptation to persons properly qualified to fill these offices. The proposed alteration amounted to not more than 200l. per annum, and he therefore thought it was not worth while to contest it.
The amendment was carried. After which, the Chairman reported progress.