Mr. Fergussonrose pursuant to notice, to call the attention of the House to a matter which he deemed of great importance as connected with the administration of the law in his majesty's courts in the East-Indies. His object was, to obtain a select committee, to whose consideration three points would be submitted. The first related to the law affecting landed property belonging to British subjects residing within the jurisdiction of those courts; he used the term "landed" in preference to "real" property, because it had been made a question, and it was one to which he meant to draw the attention of the House, whether a British subject could hold real property in India. For himself, he had no doubt upon the subject; for, to go no further back than the charter of the late king, granted to the supreme court of Bengal, it appeared that that charter gave power to the court to try all actions, real, personal, and mixed, against British subjects, and enabled the sheriff to seize and sell, for the satisfaction of the judgments of the court, the lands, houses, and effects, real and personal, of a defendant being a British subject. But doubts had certainly obtained on this subject, and the supreme court of Calcutta had been divided upon it, in a case which happened whilst he (Mr. Fergusson) practised at the bar; then one of the learned judges holding that such property was a chattel and not real estate in the hands of British subjects. The judgments of the court of Bengal had been, however, uniform in establishing the point, that such property was real estate, modified by the charter, which made it saleable under writs of execution, and so far in the nature of a chattel; it had also been at all times held in the supreme court of Bengal, that lands and houses were assets in the hands of executors and administrators of British subjects deceased, for the payment of their debts generally. On this point no doubt had ever existed till lately, nor was there any difference of opinion upon it amongst those who considered property in lands and houses to be real estate, and those who deemed them to be a chattel interest only. In a late case, however, 1362 which came before the Supreme Court of Calcutta, the chief justice, of whose high character and talents he (Mr. Fergusson) wished to speak with every respect, had held (as reported) that lands and houses were not assets in the hands of executors and administrators—a doctrine which, if established, would shake the title to every house and foot of land, almost without exception, within Calcutta; for there was scarcely a single title which in one or more of its links, was not composed of a conveyance or conveyances from an executor or administrator. This opinion of the chief justice, although the majority of the court decided against it, had spread, as his (Mr. Fergusson's) letters expressed it, consternation throughout the presidency; and the rather, in that the chief justice had declared (as it was stated) from the bench, that he would not consider himself as bound by the precedent. The importance of this matter would appear, when it was considered that within the last twenty years, from the decaying state of the export trade of India, remittances could not be had but at the most ruinous rates, and that a large portion of the capital and wealth of British subjects and others, amounting to several millions sterling, had been invested in the purchase of lands and houses, or had been lent to persons speculating in such purchases, whereby there had been created, at a vast expense, one of the most magnificent cities in the world. But the interests of every landholder in Calcutta, and every creditor of a landholder, would be in jeopardy, should the doctrine of the chief justice (at variance with that of every other judge for more than fifty years, and with the invariable practice of the court and the profession during the same period,) be acted upon as law. The fear entertained on this subject might be considered to be the less groundless, as during a vacancy in the court, such as that which happened almost immediately after the judgment of the court in the case referred to, there being only two judges, the decision rested wholly with the chief justice. Mr. Fergusson said, he had expected to receive before this time a copy of the opinion given by the chief justice, and also petitions which were in preparation on this important subject, in which case it was his intention to have moved at once for leave to bring in a bill to declare the law in this matter. He 1363 had not yet received those documents, but he trusted, that the House would be of opinion that it was matter fit to be referred to a committee, who might report, upon the examination of witnesses, what the law and the usage were, and also take into consideration the law and the usage at the other presidencies in India, where no difference of opinion, he believed, had existed on these points, on which, however, it was obviously important to establish uniformity of decision. He would now proceed to the consideration of another point, not of less importance, as connected with the administration of the law in criminal cases in the king's court in India. Those courts were four in number; he meant the courts of Oyer and Terminer and gaol delivery, established at Calcutta, Madras, Bombay, and Prince of Wales's Island, having the same extensive jurisdiction in respect of crimes committed by British subjects, not merely within the local jurisdiction of those courts, but within a circle embracing almost one half of the habitable globe. Now as the charter of the different courts of Oyer and Terminer had been granted at different periods, and as these charters brought with them the common law of England, and the statute law, as it stood at the respective periods of granting the charters, it followed, that the administration of the criminal law must be different in the different courts. With respect to the three supreme courts of India, established at Calcutta, Madras, and Bombay, it was now generally understood, that the English law was introduced into those settlements by the charter of George 1st granted in the year 1726, and that no statute, passed since that period, extended to the British settlements in India, unless named expressly in such statute, or by direct and necessary implication. The charter of George 1st created the mayors courts for the determining of civil suits, and also constituted the governor and council of each settlement a court of Oyer and Terminer, but with much less extensive jurisdiction than the courts of that description now had. But the charter of George 1st had been surrendered in the reign of George 2nd, in the year 1753, and a new charter was granted; and in the year 1774 this latter charter, as to Bengal, was replaced by the charter granted to the present court, which was created a supreme court of judicature. 1364 At the settlements of Madras and Bombay new charters were successively, and at different periods, granted first to the recorder's courts, and afterwards to the supreme courts of judicature, as in Bengal. In the year 1807, the recorder's court was established at Prince of Wales's Island, having the same extensive criminal jurisdiction as the other courts. It was clear that the statute law of England was introduced for the first time at Prince of Wales's Island by the charter last mentioned, and so it was declared, at the opening of the court, by the very learned judge, who afterwards presided at the court of Madras. A most important point arose in respect to the administration of criminal justice under these different charters, namely, whether, upon the surrender of the former charters of Calcutta, Madras, and Bombay, the law continued to stand as it did at the time of the first charter in 1726, or whether each renewal of charter introduced the enactments which had in the interval been made. The judges who tried Nundcomar must have been of the latter opinion, for Nundcomar was tried, convicted, and executed, for forgery, made capital by statute long subsequent to the granting of the first charter. That precedent had not, however, been followed; and as forgery of the same nature as that for which Nundcomar was tried had since been made, by statute 53 George 3rd, a transportable misdemeanour, this last enactment might be considered as a legislative exposition of the law in that particular matter. But he (Mr. Fergusson) had still heard doubts entertained by very learned persons as to the operation of the renewal of the different charters in the above respect; and, at all events, it was clear that a British subject, if tried at Prince of Wales's Island for the same offence committed within the same jurisdiction, would be tried by a different law from that by which a British subject would be tried at Calcutta, Madras, and Bombay. An offence under lord Ellen-borough's act, for instance, was capital if tried at Prince of Wales's Island, but was a misdemeanour only if tried at Calcutta, Madras, and Bombay. The acts respecting the embezzlements of clerks and servants were in force at the former place, and the offence was there a transportable felony; at the other settlements it was a mere breach of trust. The same 1365 with respect to the statute of false pretences, which had no operation at Calcutta, Madras, or Bombay, but was a transportable misdemeanour at Prince of Wales's island. Surely it was time to put an end to this monstrous anomaly. There was another point connected with this subject also of great importance. The general doctrine was, that even as to such parts of the statute law of England as extended to India, as far as respected the time of their enactment, the court must still determine as to their applicability. The Black Act, for instance, passed in the 9th of George 1st, extended to India; but all its provisions were as clearly not applicable to the state and circumstances of that country. This might give rise to a difference of construction in the different courts, and the judges ought, as far as practicable, to be relieved from so painful a duty as that which might be imposed upon them in this respect. These points would be well deserving of the best attention which the committee could bestow upon them. There was only one point more upon which he would trouble the House. The labours of the committee would necessarily be imperfect, if they were not to remove the uncertainty which appeared to exist as to the persons who were subject to the jurisdiction of the courts in question. In the acts of parliament, the terms employed were sometimes "British subjects," at others, "subjects of his Majesty," and at others, "subjects of his Majesty of Great Britain," or "his Majesty's European British subjects." The clause in the charter respecting juries, provided that persons serving on juries shall be subjects of his majesty of Great Britain; but the term "subjects of his majesty," generally, is used to denote the persons who are to be tried. He (Mr. Fergusson) had known the case of an Armenian, born in Calcutta, who, as a king's subject, was held liable to the penalties of the law respecting usury; although beyond the boundaries of Calcutta he would, probably, not have been treated or considered as a British subject. What, then, were all the inhabitants of Calcutta, born in that settlement, and not Mahomedans or Hindoos? Were they British subjects, or not? or was there a distinction between those born in wedlock and those not so born? Every inhabitant of Bombay was, by the royal grant of -Charles 2nd to the 1366 East-India Company, declared to have all the privileges and immunities of a natural subject and free denizen, as if he had been born in the kingdom of England. There was a large and growing population in India, consisting of persons of mixed blood, who were Christians, and whose state and condition could not but excite great interest. These persons, although Christians, were liable beyond the local jurisdiction of the king's courts, to be tried by the Mahomedan law, where the Moulavee, or Mahomedan law officer, was to expound the law, and to decide by his futwa on the life or death of a Christian. It was, happily, true, that capital punishment could not be inflicted, unless the decision were confirmed by the highest criminal court, the Nizamut Adawlut; but the system itself was well worthy of consideration, although he (Mr. Ferguson) admitted that it was a question which ought to be approached with great caution. The Christians of mixed blood, many of them persons of considerable property, had no law but the Mahomedan law to decide upon their civil rights, beyond the local jurisdiction of the king's courts. The succession to their estates was governed by the Mahomedan law. He saw no reason why the illegitimate children of such Christians might not succeed to their estates equally with the legitimate, or why such Christians might not indulge in plurality of wives, if the Mahomedan law was to be the rule by which their civil rights were to be governed. If they were not British subjects, the ecclesiastical courts established in India had no power or authority over them, for their jurisdiction was expressly confined to British subjects. The hon. member said, that he had only further to observe, that he had no wish that the committee which he was about to propose should interfere in any manner with the authority of the British government in India, which he believed and knew to be a wise and beneficent government over the natives of India.—Mr. Fergusson concluded by moving, "that a select committee be appointed, to inquire and report on the law respecting landed property belonging to British subjects, in the territories subject to the government of the East-India Company, and whether the same be liable, in the hands of their executors and administrators, to the payment of their simple contract debts; and also, what persons, as British subjects, 1367 are amenable to the jurisdiction of his majesty's courts in the East Indies, in respect of their persons and property, and what parts of the statute law of England extend, or ought to be extended, to the said territories, with a view to ensure uniformity of decision in the said courts."
§ Mr. Wynnexpressed himself hostile to a motion which embraced such an extent and variety of objects. It was introduced at the very close of the session, when it was obviously impossible, if the committee were appointed, that it would be enabled to report on any one of the subjects which were comprised in the motion. But if it had been brought forward at the commencement, instead of the close of the session, still he could not have agreed to it. Amongst other things, the committee was to declare its opinion "whether landed property belonging to British subjects in the territories subject to the East-India Company, was liable, in the hands of administrators or executors, for the payment of simple contract debts." This was a question of law—a question for the decision of the law authorities; and the learned gentleman himself had stated that a difference of opinion existed amongst the judges in India on that point. The chief justice, it appeared, was of one opinion, and the two puisne judges held the same opinion as the learned gentleman. But if the party against whom the decision was given felt himself aggrieved, an appeal to the privy council was still open to him. When a question of this kind was actually pending, was it regular to come before parliament, and to call for the judgment of a committee on the law? There were some points connected with the law which a committee might ascertain, and on which they might decide; but it was not their province to state what the law was. To declare what the law ought to be—to point out how it might be reformed—was a very different thing. With respect to the meaning of the law, as to its operation on landed property, that was a fit subject for the consideration of the courts. As to the criminal law, it was a question of great importance, and it was highly desirable that a greater degree of uniformity should be introduced into it; but he did not think it by any means desirable that a committee of the House of Commons should be called on to effect that object. He should like to see the law altered and simplified, but that, perhaps, 1368 would be better effected by individual exertion, than by the labours of a committee.
Mr. Fergusson,in reply, said, that the case decided in Calcutta, which had been referred to, might never come under appeal, and if it did, would not decide many other questions of great importance, and of some doubt, respecting the law of landed property in India; for instance, whether the widow was entitled to dower, and whether such dower was to have the preference or not over debts. Besides, this case, if decided upon appeal, would be a decision for the presidency of Bengal only, whereas, it was his (Mr. Fergusson's) wish that the same law should be declared for all the territories subject to the different presidencies, and that a uniformity of decision should be ensured in all the courts, on this and on every other point connected with the administration of the law in India. He (Mr. Fergusson) was not satisfied that any great change in the system of administering the law could be best effected by the exertion of individuals; he thought it could be better done by a committee or commission, with power to examine witnesses, than by private and personal intercourse only, although the latter would no doubt also be very valuable. At the late period of the session, however, as little progress could be made if a committee were to be appointed, he would, for that reason, and for that only, abstain from pressing his motion, with a full determination, however, to bring the matter forward early in the next session, should it not be taken up by some person more competent to do it justice. As far as depended on him (Mr. Fergusson) he should not cease his endeavours for that end, until he saw the administration of justice in India made as perfect—he trusted it was as pure—as at home.