HC Deb 04 March 1830 vol 22 cc1292-304
Mr. Stewart

said, he rose to move for certain papers referring to the interference of the local government with the administration of justice in the Supreme Court of Bombay. To recommend this Motion to the House, he did not deem it necessary to enter into the origin of this Court, but perhaps he might be permitted shortly to advert to the circumstances under which it was established. In the year 1774 or 1775, the extortions and oppressions of some servants of the East-India Company were found to press so very heavily, that Government was implored to come to the assistance of the people; and in consequence of some petitioners setting forth their grievances, and stating the necessity of their having some tribunal to protect them, were this and other courts of a similar nature established. He had to observe, that in 1782, Sir Elijah Impey was impeached for a dereliction of duty, and called to answer for having accepted office in one of the Company's courts, he being at that time Chief Justice in a supreme "court of judicature; and from this he argued that the Government at home had recognized the independence of these courts in India, and acknowledged their right to exercise a control over the local authorities, Lately, notwithstanding this establishment of the independence of the Supreme Court of Bombay, the government of that presidency had taken upon itself to exercise an authority over the proceedings of the Court that must prove altogether fatal to its independence. The Governor had addressed a letter to the Judges of that Court, telling them that they were not to use their own discretion in the case before them, whatever might be their opinion of the law. This letter was addressed to Sir John Grant. He would read it.'— To the honourable Sir C. H. Chambers, Knight, Acting Chief Justice, and the honourable Sir J. P. Grant, Knight, Puisne Justice of the honourable the Supreme Court of Judicature. Honourable Sirs;—We are quite aware that we transgress upon ordinary form in addressing this letter to you; but the circumstances under which we are placed will, we trust, justify this departure from usage, and our knowledge of your private and public character leads us to hope that what we state will be received in that spirit in which it is written; and that, notwithstanding your strict obligations to fulfil every part of your high and sacred duty as British Judges, you will, on this extraordinary occasion, deem yourselves at liberty to consider as much the objects, as the rules of that Court over which you preside; and viewing the intention of the legislature in its institution as directed to the aid and support of the government intrusted with the administration of this Presidency, you will, for a short period, be induced, by our representations, to abstain from any acts (however legal you may deem them) which, under the measures we have felt ourselves compelled to take, and which we deem essential to the interests committed to our charge, must have the effect of producing open collision between our authority and yours; and by doing so, not only diminish that respect in the native population of this country, which it is so essential to both to maintain, but seriously to weaken, by a supposed division in our internal rule, those impressions on the minds of our native subjects, the existence of which is indispensable to the peace, prosperity, and permanence of the Indian empire. This conclusion refers to a variety of circumstances, which we are equally forbid from explaining, as you are from attending to such explanation; but we deem it necessary to state our conviction of the truth of what we have asserted, expecting that it may have some weight with the preservation of that strength in the Government, which in all our territories—but particularly those we have so recently acquired—is the chief, if not the only power we possess for maintaining that general peace, on the continuance of which the means of good rule, and of administering law under any form, must always depend. 2. "In consequence of recent proceedings in the Supreme Court, in the cases of Moro Ragonath and Bappo Gunness we have felt compelled, for reasons which we have fully stated to our superiors, to direct that no further legal proceedings be admitted in the case of Moro Ragonath, and that no returns be made to any writs of Habeas Corpus of a similar nature to those recently issued and directed to any officers of the provincial courts, or to any of our native subjects not residing on the island of Bombay. 3. "We are quite sensible of the deep responsibility we incur by these measures; but' must look for our justification in the necessity of our situation. The grounds on which we act have exclusive reference to considerations of civil government and of state policy; but as our resolution cannot be altered until we receive the commands of those high authorities to which we are subject, we inform you of them, and we do most anxiously hope, that the considerations we have before stated may lead you to limit yourselves to those protests and appeals against our conduct in the cases specified, that you may deem it your duly to make; as any other conduct must, for reasons already stated, prove deeply injurious to the public interests, and can, under the resolution taken and avowed by Government, produce no result favourable either to the immediate or future establishment of the extended jurisdiction you have claimed. 4. "A very short period will elapse before an answer is received to the full and urgent reference we have made upon this subject; and we must again express our hope, that even the obligations under which we are sensible you act, are not so imperative as to impel you to proceedings which the Government has thus explicitly stated its resolution to oppose. We have the honour to be, Honourable Sirs, Your most obedient servants, Signed, JOHN MALCOLM. T. BRADFORD. Lieut. Gen. J. J. SPARROW. JOHN ROMER. Bombay Castle, 3rd October, 1828. The object of this communication, it will be recollected, was to put a stop to further proceedings in a case wherein a native of high caste was summoned to appear before the Supreme Court, and had pleaded in return the privilege conferred upon him by the promise of the Government, which exempted him from such attendance. The question respecting the jurisdiction of the Court came on in regular course before the Privy Council, and it was decided that the Court was wrong upon the point of law. But the Privy Council had not said whether the interference of the local government was or was not right; or, if it were right, whether it were made in the most advisable manner. The correspondence he moved for might perhaps show that the Government was right; and if it did, this would be a great satisfaction to the country; for decidedly a strong feeling had been excited by some most extraordinary language which had found its way into the newspapers, and which was attributed to the noble Lord at the head of the Board of Control. This occurred in a Letter stated to have been addressed by that nobleman to the governor of Bombay. In this the noble Lord said, "I believe there is but one opinion in this country as to the conduct of the Supreme Court." He differed with the noble Lord in this. He apprehended also, that between the noble Lord and the hon. and learned Gentleman and the Judges of our Courts, a very serious difference would prevail upon this question. He doubted if the decision of the Privy Council would be enough to set the matter at rest forever—he doubted if the question would not again arise in India—he doubted if future Judges would be guided, or consider themselves bound by the decision of the Privy Council. Some declaratory Act of Parliament was, he thought, necessary. But, perhaps, in speaking of this "one opinion," the noble Lord merely alluded to his own opinion, fancying that he was the only man in the country competent to form an opinion on the subject; or, perhaps, he alluded to the "one opinion" which was alone permitted in the cabinet, all others being compelled to vanish before it. The noble Lord then proceeds to say—"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." Now it might be difficult to discover the writer's drift; but if there was any meaning in the passage, it was this—I send you a fit person to answer our purposes, he will at once succumb to your authority, and would willingly make his Court the instrument of oppressing the people. He hoped, however, the noble Lord would be disappointed in the opinion he had formed of this gentleman, who, he trusted, would not suffer himself to be influenced by private feelings or Government patronage, but would distribute justice from his seat with honour and independence. Next the noble Lord said:—"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 maybe 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 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."

Was not this, he would ask, opposed to the express intention of the Legislature, and contrary to the Constitution as concerning the Courts of this country; and contrary to the practice of all provinces in which justice was fairly administered? The Supreme Courts in India had been made independent of the local authorities by the Government at home; and he hoped they would be restored to that independence by a vote of the House. An hon. Gentleman (Mr. G. Bankes) had stated, upon a former occasion, that in one of the succeeding paragraphs the principal word was, in a copy of the letter sent from India, review, and not renew the Charter. He could only say that in the copy he had received from India the words stood as they had been originally published in this country. In his opinion, however, it was no matter which of the two words was used, since the sense of the passage evidently was that the Government had made up their minds to renew the Charter. 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 Presidency 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 circum- stances, 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. Now he would say, after reading this, that it was quite clear from the context, that the noble writer meant to give Sir J. Malcolm to understand that the question respecting the East-India Company's Charter had been already decided by the Administration. He apprehended, too, that there was no reason to suppose that the authority of the Government at Bombay had been shaken by the events which had recently taken place there; while that of the Court was decidedly affected by them. In conclusion, he pressed upon the House the necessity of an inquiry into the conduct of the Bombay Government, as it was only by the greatest care that our dominion could be preserved in India. If interference with the administration of justice were tolerated in India, the House knew not how soon it might be, attempted here. The Government at each presidency was of a military character, and the Judges could not, therefore be too cautious in suffering their privileges to be interfered with. This ought to be considered, and he hoped the House would adopt some measure to remedy the mischief which had been done, and to prevent its recurrence. He then moved for the "Correspondence between his Majesty's Commissioners for the Affairs of India, or either of them, and any of the authorities of Bombay, respecting the interference of the Bombay Government with certain proceedings of his Majesty's Supreme Court of Judicature at that Presidency, in the months of August and September, 1828, or at any subsequent period."

Lord Ashley

replied, but in so low a voice, that his speech was very imperfectly heard. He was understood to say, that he was afraid that the minds of the members were prepossessed, supposing that a gross outrage had been committed on those persons on the sacredness of whose character and functions all classes had to depend for the security of their lives and property. He hoped the House would not think he was going to argue against the independence of courts of justice. He knew that it was essential to the tranquillity and security of a country that they should, enjoy perfect freedom But it should be remembered that it was not the same with respect to our Courts, in which the Judge and the aggrieved party were, perhaps, alone to be considered, and the Courts of India. The question lately under discussion there affected sixty millions of persons. The House should look to the state of the provinces under the Bombay Government. Those in the Deccan had been but lately acquired by us; and a great part of the population was in a state of great disorganization. The object of the Government was to bring these men gradually within the pale of the law, and this inquired a delicate and prudent administration, in order to avoid intimidation. Certain privileges had accordingly been guaranteed to the higher castes of natives in the Deccan, particularly an exemption from personal appearance in our courts of justice, which was repugnant to the prejudices of these high caste men. Sir John Grant, however, had opposed himself to this course, by issuing a writ of habeas corpus to bring up the person of a native of Poonah, named Moro Ragonath, who was under the guardianship of his uncle, Ramchunder, a person of high birth, being nearly related to the late Peishwah. He was called upon to obey the process of the Court, notwithstanding the guarantee that he should not be compelled to appear in a Court of justice. Sir John Malcolm felt that he incurred a severe responsibility; but he saw, although there was great difficulty in the way of resisting the process of the Court, that he should expose the empire to great danger if he suffered this innovation in a country recently acquired, and scarcely brought into order. There were peculiar circumstances which rendered decisive steps necessary. The alarm amongst the natives of the Deccan was general. The inhabitants of Poonah congregated in large masses to inquire into the nature of this mysterious process, which was represented to be of so potent a nature that it would place the Governor and Council in confinement. The peculiar circumstances of the Deccan had great influence on the mind of Sir John Malcolm. He knew that there was a vast proportion of seditious men there who would take advantage of any discontent. It was to be recollected that our empire in India was held entirely by opinion, and if the natives observed a discord between two branches of the government, they would be less disposed to obedience. To show how far the alarm had extended, in a communication with the Rajah of Guzerat, that prince refused to pay a loan which he had contracted, alleging that he could be released from it by the process of the Supreme Court; and the Bombay Government was obliged, in consequence, to sequestrate a part of his property. Again, the Rajah of Satara, one of the most powerful of the Mahratta Princes, when going down to Bombay, in the programme of the ceremonial, which gentlemen who have been in India know is a matter of great moment, was anxious, not how he should meet the Governor, but how he should meet the Judge of the Supreme Court. This was not all; the Supreme Court had, previous to issuing the writ ofhabeas corpus to bring up Moro Ragonath, who was not subject to the jurisdiction of the Court, issued, on the 11th of September, 1828, a writ directed to the gaoler of a Zillah Court, in Salsette, for bringing up a native, named Bappo Gunness, who had been guilty of embezzlement, a crime very common in India, and had been sentenced to two years' imprisonment. This man, who had been imprisoned only since May, was set at liberty by the Supreme Court, and was allowed to go into the Deccan, or wheresoever he pleased. The Government was anxious to avoid all collision, and therefore made no opposition to his enlargement. When Bappo Gunness was brought up, and the sentence of the Zillah, or provincial court, was returned, Sir John Grant said he did not know such a court as a Zillah Court, which was equivalent to a declaration to 6,000,000 of men, that there was no court which could take cognizance of their crimes. The House must not suppose that this was said to a parcel of men who could not understand it, but there were acute men amongst them; and the transactions in the Supreme Court were transmitted to Poonah quicker by the native agents than by the Government couriers. He did not mean to say that the natives of India were averse from the principle of the English laws. They might have objections to our process and operation, in some instances, which appeared to them absurd and unintelligible. Of this a better illustration could not be given than the saying of one Hindoo to another, who inquired his opinion as to some judicial proceedings at which he had been present. The party replied, that "he could make neither head nor tail of them, and that it took an hour and a half to prove that Budjee Row was in existence, although he was known to every one in Bombay." It was clear that Sir John Malcolm had no alternative, and that he was compelled to take the course he had adopted, except he chose to render our laws and government offensive and unpopular amongst the natives. If we desired to introduce English laws and usages among the Hindoos, we must innovate gradually, and with extreme caution, and spare no effort to conciliate their prejudices, in order that we might be enabled to render the people as great, as happy, and as independent as possible.

Mr. Robert Grant

said, that although the intimate friend of one of the Judges, and bound by a much closer tie to another, now no more, he could not allow himself to deny that they were not wrong in the course they adopted on this occasion. But if the Judges had acted imprudently and indiscreetly, the Government had on its part made as many mistakes as the Judges. When the Governor found it necessary to assert his authority, he should not have contented himself by sending a private letter on a subject of such great public importance. The Judges were applied to publicly to grant a writ of pressing haste, and which, from its very nature, brooked no delay; and he ought therefore to have taken some public step at all hazards and consequences, even if it had been necessary to issue a proclamation. It was plain that if not legally, he was morally justifiable in adopting that course; and the Government at home would not have hesitated to pass an Act of Indemnity to free him from the consequences, in the same manner as they had done to the Bengal Government in 1781, when it resisted the orders of the Supreme Court by force, on the ground that those orders, though legal, were unjustifiable and inexpedient. The bill which was then passed adopted the same opinion, and its preamble expressly declared, that the conduct of the Supreme Court had not been strictly justifiable, although legal. Passing to the Letter of a noble Lord, which had been so often mentioned, he must say that, although it was said to have been written in haste and without due consideration, all the substantial parts of it had been fully acted on. In the various debates on the subject of this letter, it had always been contended that the measures it recommended, and the declarations it contained, were forced from the Government in consequence of the communications from Bombay. Now, if that were the case, how could the House form any judgment of the propriety of that letter, unless the correspondence was produced which formed the grounds for it. A great deal had been said of the independence of the Judges; but if they were to remain under the control of the Governor, that independence was a mockery, and they were reduced to mere machines, that could not pass a foot beyond the boundary prescribed to their motions. In the case of Sir Elijah Impey the House had acted upon a very different principle, for they actually threatened him with an impeachment for having acted in his judicial situation in such a manner as to make the Supreme Court dependant on the Government. In that instance the House passed a resolution, in which they stated that Sir Elijah Impey had done what in itself had a tendency to place the Supreme Court in dependence on that which it ought to control; and that, in so doing he had been guilty of high crimes and misdemeanours. That was the conduct of this House on a former occasion; why it should adopt an entirely different course at the present moment was what he could not understand. In his opinion, the letter which had been so much referred to, had degraded Sir John Grant—had been opposed to the spirit of the resolution, which, on the former occasion, this House had agreed to, and had been unadvised in point of policy. He would waive all discussion on the law of the case: but still he did not think it fitting that even so high a tribunal as that of the Privy Council should set aside a decision which was in accordance with the preceding authorities, which were recognised as the general law of the land. It was impossible to say that Sir J. Grant had been misled by the authority of Sir Charles Chambers. He was too high in spirit to wish to cast his own fault, if fault it were, upon any other person, and the stand he had made in defence of his own opinion showed that it was essentially his own. He could not have asserted it more distinctly if he had been led to the stake for it. As to Sir Charles Chambers himself, no one could doubt the purity of his motives or intentions, for every one was aware that the manner in which he had administered justice in India was such as to endear his memory to the native population. His death, indeed, was hastened by that over-anxiety to discharge his duty which minds like his always felt, and which was always destructive to their possessors in such a climate, where perfect freedom from anxiety was the best, if not the only, preservative of health. Yet this was the man whose relations yet living were doomed to sec posthumously disgraced! On the subject of an independent judicature he would beg, in conclusion, to read the words of Sir W. Jones, whose opinions had been fully confirmed by that resolution which he had previously mentioned. The words of that great writer were:—"Whatever might have been the reason for the first establishment of the Supreme Court, of which I am not perfectly apprised, I will venture to say that it has been continued for one obvious reason—namely, that an extensive dominion without a complete and independent judicature, is an anomaly of which this world does not offer one example."

Colonel Graham

contended, that the provincial Courts enjoyed an independent jurisdiction, and that the attempt of Sir John Grant to establish the authority of the Supreme Court in the manner he had done, and his discharge of a convicted person, was contrary to the letter of the law, and gave the natives reason to believe that there was some mysterious process by which a guilty man could be set at liberty and left to continue with impunity in his course of crime. This country had recognised the independence of the provincial Courts, and having done so, it was extremely improper in a Judge of the Supreme Court to set aside their authority, and quite wrong in any one to support such an act. He believed that no one had ever denied that Sir J. Malcolm had done his duty in openly resisting an authority which he believed to be illegal, and which, when attempted to be enforced, had created much disturbance and confusion.

Mr. Hume

observed, that this question was one of considerable importance to the inhabitants of our Indian possessions; and after the misrepresentations of facts—misrepresentations which documents in his possession would fully prove—he did not think that it would be just towards India to suffer the discussion to be so hastily disposed of as it must be at that hour of the night. He therefore moved, that the question be adjourned, and said he should be ready to allow the adjournment to stand for any time that might be the most convenient to the House.

Some discussion followed as to the time to which the question was to stand adjourned, when it was finally settled that it should be adjourned till to-morrow (this day); but that the motion of the hon. Member for Hertford, upon the subject of East Retford, should take precedence of it.

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