HC Deb 05 February 1830 vol 22 cc124-33
Mr. S. Rice

presented a petition from Mr. V. Hunt, Mayor of Limerick, and Chairman of a meeting of the Freemen, Freeholders, and Inhabitants of the County of the City of Limerick, against a renewal of the East India Charter.— Having stated the object of the petition, he said he would take that opportunity to put a question to his hon. and learned friend opposite (Mr. G. Bankes), who had, at least till a late period, been connected with the administration of the affairs of India. The subject to which he was about to allude was of such an important nature, that it was highly necessary that the public and parliament should know what answer his learned friend would give—if he were to give any answer—to the question which he was about to propose, relative to a matter that was certainly deserving of explanation. A letter had recently appeared in the public prints of this country,* * The following is the Letter alluded to, as it appeared in The Times London journal: India Board, Feb. 21. Sir,—I had not intended to write to you until I could communicate to you the opinion of the law-officers of the Crown upon the difference which appears to have taken place between you and the Supreme Court of Bombay; but the Chairs have just informed me which was stated to have been received by an official individual in India, from the noble President of the Board of Control, and which letter contained statements of that they wrote to you by a vessel which sails to-day, and I am unwilling that you should not receive a letter from me at the same time. I believe there is but one opinion in this country as to the conduct of the Supreme Court. Their law is considered bad law; but then errors in matters of law are nothing in comparison with those they have committed in the tenour of their speeches from the bench. Had sir C. Chambers lived, I think he must have been displaced. Sir J. Grant seems to have confined himself more strictly to a legal argument. He may have been led by his erring chief: still there is much to censure in his conduct, and although I think it will probably not be considered necessary to recall him, his case is by no means decided upon. I am to have some conversation upon it with the Chancellor in a few days. We are so much occupied with our Roman Catholic Relief-bill at present, that we have little time for other matters, however important: to this circumstance must be attributed the delay which has occurred on the part of the law-officers. There was none in sending the case to them. In the mean time the King has, on my recommendation, made your Advocate-general, Mr. Dewar, Chief Justice. I advised this appointment because that gentleman appears to have shown ability and discretion during the late conflict with the Supreme Court, and because he appears to take a right view of the law, and to be on terms of confidence with you. I thought the putting him over sir J. Grant's head would do more to notify public opinion than any other measure I could at once adopt; and you have him in action two months sooner than you could have any other sent from here. I hope this arrangement will be satisfactory to you. The Puisne Judge appointed in the room of sir C. Chambers, is Mr. William Seymour, of the Chancery bar. The Lord Chancellor has a very good opinion of him, and generally, I think, he appeared to have higher claims than any other candidate. He is a gentleman in his manners, and a man of cultivated mind. He seems to have right notions of his duty, and of the law which has been so strangely misinterpreted. He will rather support Government than use the authority of the Supreme Court as a means of raising opposition. At least, if he is not all this, I have been deceived in him. He will embark in less than two months. He will probably be knighted before he sails; and as it will not be right that the Chief Justice alone should not be knighted, we must consider in what manner that can be best effected. I believe it may be done by patent; but my present idea is to empower you, as Governor, to confer the honour of knighthood on Mr. Dewar. This will evidently place the Governor the utmost importance respecting the administration of justice in India, and the intentions of his majesty's government with regard to the renewal of the East above the Court. It will mark you out as the King's representative: you may make the ceremony as imposing as you please. I have written to the Heralds'-office to know if the thing could be done according to precedents. It is as yet undecided, the law-officers not having as yet given their opinion as to the law, whether a declaratory act will be required. Perhaps the opinions of the law-officers, and those which I may obtain of the Lord Chancellor and the Lord Chief Justice, may be sufficient to induce sir J. Grant to revise his notions of law. At any rate, no more mischief can happen, as he will be like a wild elephant led away between two tame ones. As we may not impossibly renew the Charter next year, we may take that opportunity of rectifying the expressions of the act of Parliament, should they require it. Many persons think it would be inexpedient to open a discussion on Indian matters this year, if it could be avoided. But, as I tell you, no decision is yet come to. You will see that there is no intention of deserting you. You have acted with much firmness and prudence. I entirely agree in the view you have expressed of the dangerous consequences which would result from the extension beyond the limits of the Precedency of the powers claimed by the Supreme Court. Orders have been given for expediting the patent of the Chief Judge. It is with deep regret that I have heard that the Company and the country are so soon to lose your services in India. I could not ask you to stay one hour to the danger of your valuable life: but I am confident you will stay till you have re-established the authority of Government in the opinion of the natives. I trust, indeed, that the unbending firmness you have displayed will have prevented much of the evil which might have been expected to flow from the conduct of the judges. I feel satisfied that you will act with the same firmness under all circumstances, and at the same time with moderation and discretion. You may thus depend upon the support of the Board of Control, which I have the honour of presiding over. I have, &c. (Signed) "ELLENBOROUGH. Sir J. Malcolm, G.C.B. I am going to send you a very excellent new Bishop, whenever Dr. James resigns—Mr. J. M. Turner. The Archbishop of Canterbury, the Bishop of London, and indeed all the Bishops I have seen, are quite satisfied that Mr. Turner is as fit a man as could have been selected. He will be mild and firm. He is a very good and pious man, without worldly notions, and really devoted to his high calling. E. India Company's charter. He would not more particularly advert to the letter, but he had said enough, he conceived, to indicate to the hon. gentleman the letter to which he alluded. Now, the question which he wished to put was, whether or not that letter was genuine, and if it were genuine, whether there would be any difficulty in laying a copy of it before Parliament?

Mr. G. Bankes

said, he felt no hesitation whatever in communicating all the information which it was in his power to give respecting the letter to which the hon. member for Limerick had directed attention. He begged to be allowed to say, that, owing to the circumstance of a melancholy occurrence in the family of the noble Lord (Ellenborough) alluded to, [the recent death of his lordship's son at Worthing,] he (Mr. Bankes) had not had an opportunity, these many days, of seeing him; but he understood from the noble Lord that the letter in question was written in the shape of a strictly private and confidential communication from him to the individual to whom it was addressed, and that it was never intended to meet the public eye. He could state, that while acting as Secretary to the India Board, he had never seen a copy of this letter, and he believed that it was not in the power of the noble lord himself to say whether or not the letter which had been published in the papers was a correct copy of the private letter he had written to sir John Malcolm. The fact was, that the noble lord had kept no copy of that letter, as it was a strictly private and confidential one, and one which was never intended to meet the public eye. Sir John Malcolm had since expressed his deepest regret that it should have come before the public, and had stated, that a deliberate and shameful breach of confidence was the only means by which such a document could have been brought before the public. He had already mentioned that his noble friend was not able to state whether or not it was a completely correct copy of his letter that had appeared in the papers of this country, as he had kept no copy whatever of that letter, it being intended as a mere private and confidential communication. He was ready to afford any other information he possessed, if the hon. member should wish to put any further questions on this subject.

Mr. Brougham

thought the appearance of such a letter, taking it to be genuine, was forcibly calculated to give rise to doubts as to the capacity of the writer of such a letter for the situation of important trust which he at present filled, [hear, hear] He could not avoid entering his protest against the jurisdiction which appeared to be assumed by the writer of that letter over the independence of the judicial order in India. He should not enter further at present into this discussion, but would simply content himself with expressing his regret at reading such a document, and his surprise that a noble lord at the head of such an important department connected with India could have permitted himself to indulge in the expression of such opinions regarding the judicial office in that country.

Mr. M. A. Taylor

.—If the letter were genuine, it was indeed a most extraordinary document, and he had read it with regret.

Mr. Bankes

said, he could only reiterate the statement he had already made as to the noble lord having no copy of the original letter in his possession, and his consequent inability to state whether or not the copy published in the papers was correct. It was transmitted as a private confidential communication, and it could only have been through a base violation of confidence that it was ever made public.

Mr. Trant

said, he could not but strongly condemn the practice of making documents of such a description public. It was calculated altogether to put an end to confidential correspondence between individuals in this country and their friends in India. He would give no opinion as to the letter itself, but he would enter his protest against founding any public proceeding upon a private letter written in confidence from one gentleman to another, and the publication of which could have occurred only through a gross violation of confidence.

Mr. S. Rice

said, he knew nothing of the manner in which this letter had been made public, but seeing it in the public prints, he took the liberty of putting the question to his hon. friend, and he did not think he could have asked him a kinder question, as it afforded him the opportunity for the explanation he had given, and which would have been more satisfactory if he could have denied altogether the genuineness of the letter. Let the disgrace of publishing the letter attach to the indivi- dual by whom it had been made public; but the letter was now before the public, and it could only be treated as a public document, [hear] It was said to be a private letter, but what kind of a private letter was it, that a minister, filling an important office in this country, thus sends to a civil and military governor in India, in which he advises him as to the mode of dealing with judges, refers to other matters connected with his government, and speaks of the renewal of the company's charter? [hear] Was such a communication to be viewed in the light of a private letter between one gentleman and another?

Mr. Hume

said, if the doctrine of the hon. Secretary to the India Board were to be adopted, we should remain in total ignorance of the administration of affairs there, for a large portion of the business between this country and India was uniformly transacted in the way of private communications either from the heads of the Board of Control, or the directors of the East-India company, explaining the way in which the official individuals were to act. He had received a copy of this letter from Calcutta. He believed, it had been published in every newspaper in Bombay, and thus an opportunity was given to sir John Malcolm to triumph over the King's Court there, which no longer could be considered as affording that protection to the natives for which it had been, established. Mr. Dewar, it appeared, was considered fit to fill the office of judge there because he would truckle to the government. Thus the confidence of the natives was destroyed, and the letter of the noble lord had spread dismay throughout the whole of Bombay. The subserviency of two of the judges, it seems, could now be reckoned upon; and then, if sir J. Grant should be refractory, why, according to the noble lord, no mischief would accrue, for he "would be like a wild elephant, led away between two tame ones" [loud laughter]. He trusted, that his learned friend below him (Mr. Brougham) would bring this subject under the consideration of parliament, [hear]

Mr. G. Bankes

explained.—He had laid down no doctrine but that to which every man of right feeling would assent; namely, that private and confidential letters should not be violated. The hon. member (Mr. Hume) had stated, that a copy of the letter had been forwarded to him from Calcutta. The letter he (Mr. Bankes) believed had appeared first in the Calcutta Journal, and it differed materially from the copy which had been published in the London papers, while the noble lord, not having a copy in his possession, was unable to say which of these was the more accurate.

Lord Ashley

would contend that the letter was a private communication, and that even supposing the copy published was a genuine one, it was rather hard that an individual should be judged according to what he had written in a hurry and in. private confidence to another. He knew that no man was more anxious than the noble lord in question to see a complete independence preserved to the court in Bombay, and he should not, therefore, be judged by a momentary effusion in a private letter.

Mr. Brougham

said, whether the letter was private and confidential or not, it had all the forms of an official despatch, although the substance of it was certainly contrary to all the official despatches he had ever seen, [hear, and a laugh] When they looked at its contents, could they regard it as a mere private and confidential letter? Here was the minister for India affairs describing to the governor of Bombay the way for insuring the strict dependence of the judges upon him. A subserviency to the views of the governor, it seemed, was to be taken as the rule of selection of judges for the court there; and that was stated in a letter, described as private and confidential, from the President of the India Board to sir John Malcolm. He disapproved of the publication of that letter as much as any one could; and he by no means meant to attribute the publication of it to sir John Malcolm; but he had a suspicion that the publication was not the act of an enemy to sir John Malcolm, but rather that of a friend. He had a suspicion that its publication might have been brought about in this way —sir J. Grant might have said, 'depend upon it, the government in England always stand by the independence of the judges, and your case is a bad one.' 'No,' replies the governor, 'you are wrong, and I'll show you that it is not.' It was probable that in this way sir J. Malcolm might have shown the letter to a friend, and it might in that manner have got before the public. But whatever blame attached to the individual who committed the breach of confidence, that did not at all alter the case, or excuse the noble lord for having written such a letter.

Mr. Peel

.—Different versions had been circulated in India of this letter, which he understood were very different from the one published in this country. He had asked his noble friend respecting it when the letter was published here. The noble lord acknowledged that he had written a letter of that description, but he could not say whether that was a correct copy of it, and it was moreover a letter written hastily, and inadvertently. He did not mean to say, that a public officer had a right to write letters to public functionaries upon public subjects, and afterwards to screen himself from animadversion on the plea that his letters were private [hear]. In such a case, a public officer might produce copies of despatches which he had transmitted to a colonial functionary, while at the same time he had given in private letters very different instructions to the same individual. But the case was different where a public officer, as in this instance, writes a private letter hastily and inadvertently; and the expression which occurred in this letter as to the wild and tame elephants was sufficient to show that there existed no deliberate intention on the part of the writer to interfere with the independence of the judges. In this case, no doubt, his noble friend had written a hasty letter, and no such inference should be drawn from such a letter, as that any intention existed on the part of the government to control the independence of the judges in India, [hear] If such a construction should be put on his noble friend's letter, no man would regret it more than his noble, friend. He was not prepared to admit that the copy published of this letter was a correct one, as there was no means of ascertaining that at present; but he would only submit, that the whole tenor of his noble friend's official conduct should free him from the charge of seeking to lessen the independence of the judicial bench in India. The expression as to the wild and tame elephants was but a hasty and inconsiderate joke hazarded in a private letter, and it should not be set against the public tenor of his noble friend's life.

Lord J. Russell

said, no satisfactory explanation of this matter had been given. and that the House should consider whether the individual who could write such a letter was fitted to fill the office which he occupied. He thought that the defence was a bad one; on such a subject inconsiderate and joking letters ought not to be written; whatever the noble lord had done, this letter was a strong item against such public service.

Mr. Brougham

inquired whether the case of sir J. Grant, to which allusion was made in the letter, was yet decided?

Mr. Bankes

was not sure whether sir J. Grant's case was as yet decided upon.

Sir J. Mackintosh

said, he condemned in the strongest terms the sentiments contained in the letter to which the attention of the House had been directed. He could not look upon a letter from the President of the India Board to a governor in India, treating on public subjects, as a private letter. In writing this letter, the noble lord seemed to forget what was due to his situation. The secret opinions of those who administered the affairs of India were, when made known to the public, of the greatest importance to it, because they displayed the real opinions of those who governed the public both in England and in India. He would say that, if the noble lord should now come forward, and, in a manner which could not be mistaken, and which could not be concealed, disavow the sentiments of that letter, supposing it to be genuine, such a disavowal, so made and so published, would be, in his eyes, a great reparation of the original fault which he had committed. If he could understand that any thing of that kind was in contemplation, he should be glad to receive it; but it was treating a matter of first rate importance with far too much levity, to say merely, that the noble lord had forgotten what he might have said respecting it. Was the character of a judge such a trifle in any man's eyes, that he could easily forget what he had said respecting the mode of that judge's performing his high and important functions?—Was the administration of justice to be treated with such scornful negligence—was it, in short, to be matter of such utter indifference to the noble lord, that he could write about it with such inconsiderate haste, as not to be able, at the end of nine months, to recollect even the substance of what he had then written? Those stale jests which the letter contained, about employing a tame elephant as a decoy for the wild ones, were not likely to be forgotten soon by the reader, and were in all probability engraven deeply in the memory of the writer. It was extraordinary that any public functionary should have written such a letter; but it was still more extraordinary that any public functionary should say that he could not recollect whether he had written that letter or not. In point of fact, it did appear to him, that the noble lord, in saying that he had forgotten what he had written, had been guilty of an aggravation of his original offence. The tendency of the letter was most dangerous. It had struck a most important blow at the independence of British Judges in India.

Sir R. H. Inglis

.—As it appeared from the public newspapers that a terrible domestic calamity had been inflicted upon the noble lord within the last few days, some indulgence ought to be extended to him, if in the confusion of the moment he had stated that he did not recollect what he had written in a letter which he had sent to India nine months before, and of which he had kept no copy. He did not intend to enter at that moment into a consideration of the letter itself. If the document, consistently with the forms of parliament, could be laid upon the table of the House, he should be anxious to say a word or two upon it, when it came before them in a regular form. At present he would submit to his hon. and learned friend, whether the noble lord was not entitled to some indulgence for the reasons which he had just stated.

Mr. G. Bankes

said, as so much allusion had been made to the forgetfulness of the noble lord, he would only say that the friends of that noble lord would have ill-served him if they had rested his defence entirely upon that ground. His forgetfulness was intended to apply only to particular expressions in the letter; and really those expressions appeared to him to have been very much misinterpreted by the newspapers.

Mr. Rice

said, his reason for bringing this matter forward at this early period was, that the letter stated the intentions of government with regard to the East-India Company's charter. He had therefore thought it right to ascertain whether the statements of the letter were true or not.

Petition ordered to be printed.

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