§ The Order of the Day having been read for the House to resume the adjourned debate on the Bombay Judicature,
§ Mr. Hume
expressed his decided impression that the interference of the Government with the Supreme Court of Judicature in Bombay was uncalled for by any exigency. The facts of the case by no means bore out the allegation of the noble Lord (Ashley) that an excitation bordering on rebellion would have prevailed in that part of India, if the Judges had been allowed to act as they wished. It was plain that the conduct of the 1371 Government tended to place the Supreme Court in a state of subserviency, contrary to the Act of Parliament appointing that Court; and if he were right in saying that the noble Lord had not made out a case of exigency, the interference of the Government was as uncalled for as it was illegal. He had never said, and never would say, that circumstances might not arise to place the Judges of the Supreme Court at Bombay, or in any other part of India, in a situation calculated to endanger the public peace, and which would justify the exercise of the powers of the Government in stopping their proceedings. That he fully admitted; but he denied that such had been the state of things when the Government of Bombay had interfered with the Supreme Court. What was the purpose for which the Courts in question were originally established? To protect the natives of India from oppression. But the conduct which had been pursued by the Bombay Government contravened that purpose; he allowed that both the Judges in question might have said less in open Court, and might have treated the Government with more respect—and, he allowed, therefore, that they were, in some degree blameable—yet nothing in their conduct warranted the steps taken by the Government of Bombay. The noble Lord too, at the head of the Board of Control, had disgraced a Judge, by superseding him, who had no doubt acted conscientiously, without hearing a single word in explanation of his conduct Six weeks before Sir J. P. Grant's statement arrived, his Majesty decided in council that he should be superseded. Through that Judge was the Supreme Court reprimanded and disgraced. The noble Lord at the head of the Board of Control, who it might be supposed would be above all the little party feelings of provincial governors and judges, had lent himself to the views of the governor. He considered the conduct of the Government of India to be improper; but that of the noble Lord at the head of the Board of Control to be much more so. The noble Lord ought to have viewed the dispute between the Government of Bombay and the Court with more impartiality; and he was apprehensive, that unless the House signified their indignation at the conduct which had been pursued, very injurious consequences might ensue with respect to the letter of that noble Lord, which a noble Duke in 1372 another place had not hesitated to avow as containing sentiments approved of by the Government; he would only say, that if those sentiments were acted on, it would be in vain to expect independence in the Judges of India, or that they should ever resist, however oppressive it might be, the authority of the Government. Conceiving that the conduct of the Government of Bombay was reprehensible, and the conduct of the Board of Control was still worse, he should with pleasure support the Motion of his hon. friend.
§ Mr. O'Connell
said, he meant to confine himself to the legal part of the question, and he would first state that he conceived the production of the papers necessary for the vindication of Sir John Malcolm. In the accounts already published, two cases were mentioned, that of Bappo Gunnes and that of Moro Ragonath, concerning which disputes had arisen between the Judges and the Governor. Bappo Gunnes, as he understood the matter, being committed to gaol, applied for a copy of his committal, which was refused. He then applied to the Supreme Court for a Habeas Corpus, and this writ being granted, was obeyed. A return was made to it in due course, and Bappo Gunnes carried, in answer to the writ, before the Supreme Court at Bombay. The Court thought the return to the writ defective; time was accordingly given to amend the return, and the man sent back to prison. But after the Company's law officer had accepted the time to amend the return, he neglected to avail himself of it, and at the end of the time allowed, the subject being again brought under the consideration of the Court, Bappo Gunnes was discharged. As a lawyer, he meant to contend, that the Supreme Court at Bombay had acted constitutionally and legally in this adjudication. The return made to the writ was inaccurate in many respects. It was necessary to set forth the nature of the inferior jurisdiction, and the particulars of the charge against the accused; neither of which things were done. The return stated that Bappo Gunnes had been found guilty of applying seventy rupees of the Government money to his own use, but it did not state where and when he had received them. The return was therefore defective, and the Judges were bound to hold that the proceedings of the inferior court were untenable. Under such circumstances, if the Judges had not discharged 1373 the prisoner, they would have deserved to be discharged themselves. In the other case, that of Moro Ragonath, the party was a youth, fourteen years of age, possessed of a considerable fortune. He was living with his maternal relations, and had married one of them, according to the custom of the country; while under their protection, he was seized, and carried oft by his uncle, Pandoorung Ramchunder, who kept him a prisoner in his own house for a whole twelvemonth, without any authority whatever. The young man endeavoured to make his escape to Bombay, but by the instrumentality of Mr. Dunlop, a British magistrate, he was compelled to return against his inclination, and even in spite of his tears and entreaties. His uncle who thus took, and was enabled to keep possession of him, by means of the British power, was his next heir, and had an interest in his death. Under these circumstances, some of the young man's friends made an application to the Supreme Court at Bombay, and these facts being sworn to, the Court issued a writ of Habeas Corpus. A return was made; the Judge's decision on which, in his opinion, was wrong; subsequently the Court issued an alias habeas, which was not obeyed. If Ramchunder was the natural guardian of Moro Ragonath, it would only have been necessary that he should have stated that in the return, and there would have been an end of the matter. Instead of doing that, however, he set the Court at defiance. It would be said, he was aware, that being a Hindoo, Ramchunder was not subject to the jurisdiction of the Court; but the man who served the writ might possibly have been able to enforce it, had he not been resisted by a detachment of native infantry, exhibiting the edifying spectacle of the East-India Company's troops opposing the execution of the King's writ. The man applied to three magistrates, who, one and all, refused to assist him. All that he could do, therefore, was to place the writ in the hands of one of Ramchunder's servants. As far as the law was concerned he contended that the Judges were decidedly right, whether they had jurisdiction or not must depend on the Act of Parliament constituting the Court, and on the patent appointing them. But the commission, under which they acted, appointed them "further justices and conservators of the peace in and throughout 1374 the island and town of Bombay, and in all factories, settlements, and territories, that now are, and hereafter shall be subject to, the Presidency of Bombay, and to have jurisdiction, and rule, and authority in all things the same as the Justices of the Court of King's Bench throughout the Kingdom of England," which, in his opinion, gave the Judge the full authority of the Court of King's Bench in England, one of the privileges of which was, to issue a writ of Habeas Corpus, whenever it was required by any one of the King's subjects; the moment, however, the Court at Bombay issued this writ, the civil and military Governor prevented its being obeyed. In this country such a proceeding would be rebellion; but in this country it never could happen that any individual should interpose between the judge and the execution of his authority, for the whole people would regard such interference as the violation of their dearest, right. In India, however, the Courts were more necessary to protect the people against the military government than they ever could be here. There, then, they ought to be treated with double respect, and their authority ought to be steadily upheld by the legislature. He knew that the Privy Council had come to a decision different from his opinion, but as a Member of that House, he could not surrender his own unbiassed, independent judgment to the decision of any court or council whatever. Notwithstanding that decision, he had no hesitation in saying, that the Judges were in the right; but even if they were not, they still deserved to be treated with respect by the civil government. He thought, in what had been said about programmes and ceremonies, and in the anxiety manifested at home to place the governor above the judge, he could detect some of those jealousies which sometimes exhibit themselves among men about equal in authority. He could not, however, think that any paltry, mean motives of that kind had operated on the mind of the Governor. At any rate, the Governor ought not to be placed, like a dictator, above the Court, with power to control its proceedings, and decide what was legal for it to perform, and what not. If there were to be any opposition, any conflict between these parties, he should wish, quite contrary to the noble Lord at the head of the Board of Control, to see the authority of the law and the constitution 1375 rise superior to the power of the Governor. Not wishing to decide on ex parte statements, he should cordially support the Motion; being satisfied that it was only by having the fullest information that the House and the country could come to a correct decision on the subject.
§ Mr. George Bankes
said, it surprised him that the hon. and learned Member for Clare should vote for the Motion, when he appeared already so fully informed on the subject. He trusted the House would allow him, from his official situation, to enter into some explanations, and he thought he should be able to show that Sir John Malcolm did not mean to insult the Judges, and that he interfered for the protection of the natives. The hon. Member for Clare said, there were two cases; but the hon. Member was mistaken in supposing that Bappo Gunnes was a British subject. The Habeas Corpus was not directed to him, but to a gaoler of a court not under the authority of the Supreme Court at Bombay, who made a return to which that Court objected. The gaoler, he admitted, was a servant of the Company, and might as such be amenable to the Supreme Court. As a gaoler of a country court, he was not bound to obey the Supreme Court. The return which he made was deemed insufficient, and the Supreme Court required another, or else it declared that Bappo Gunnes should be set at liberty. That man had been convicted of one offence, and stood charged with another. Sir John Malcolm authorized the gaoler not to amend the return, and the consequence was, that the Supreme Court set Bappo Gunnes at liberty. He would say no more on this case, except that it had been brought before the Privy Council upon the appeal of Sir John P. Grant, a person the most competent to state his own case, an able and learned man; and on his appeal the Privy Council had decided against him. It had ruled that the Supreme Court had no authority to issue a habeas to the gaoler of a native court, nor to any man not a British subject, and not within its jurisdiction. The Privy Council went further, and declared that the Supreme Court was bound to recognize the authority of the native Courts, requiring from them no other voucher than their declaration that they had decided in any particular manner. The question at issue here was, whether the Supreme Court had authority to send its writ to the gaoler of 1376 a native court, commanding it to bring up the body of a prisoner. The Privy Council decided, on this point, against the Supreme Court; but it even went further, and declared that the Supreme Court had no power to set any prisoner at liberty confined under the sentence of a native court. But it also appeared plain, and so the Privy Council had decided, that the Supreme Court could not object to a return, as defective, from a Court over which it had no jurisdiction. Whatever might be the learned Member's opinion of the Privy Council, nobody speaking on behalf of Sir J. P. Grant, could think of questioning its judgment or authority, when it had been appealed to by him. As to the case of Moro Ragonath, it unfortunately happened that there were violent disputes in his family, while he, being an infant, was under the guardianship of his relations. According to the custom of the country, his great-uncle, Ramchunder, was his legal guardian; and after having been taken from his maternal relations, he was residing in his uncle's house, when the disagreeable circumstance occurred which was then the subject of discussion. It was wrong, however, to suppose that Ramchunder could be the heir of Moro Ragonath, that being, according to the Hindoo law, quite impossible. The affidavits on which the Judges acted in this case, and on which the hon. Member for Clare seemed to place considerable reliance, were contradicted by affidavits from the opposite party, and have actually been made the grounds of a prosecution for perjury. The object of the parties, in making these affidavits, was to get the Supreme Court to interfere in the dispute, the family residing eighty miles from the Presidency, and beyond the jurisdiction of the Supreme Court, which extended only to the island of Bombay, exclusive of the island of Salsette, and to the British subjects within the provinces dependent on the Bombay Presidency. The boy, however, never was in Bombay, nor was he a British subject, nor was he in any manner, in the ordinary sense of the term, under the control of the East-India Company. There was no ground whatever for making the uncle amenable to the Supreme Court, and the false affidavits were made with a view to get him brought there, where he would base been under its jurisdiction. In one of these affidavits it was sworn, that the boy was imprisoned, 1377 and was kept in imprisonment, and it was in consequence of these false affidavits that the Supreme Court issued its writ, or rather a summons, which did not, however, justify or order the capture of either the boy, his uncle, or any other person; the summons was merely calling on him to appear. To serve this summons, a low person, a Portuguese, was employed, who, fancying that he possessed all the authority of the Supreme Court, behaved most insolently at the house of the Mahratta chief. He did not, on that account, impute blame to the judges, for they could never suppose that any insult would be offered to the party summoned. The Portuguese, however, being full of. his commission, produced his staff, and boasted that he would take the Governor himself; which, in a country like India, was a proceeding that might have been attended with dangerous consequences. Was it not plain from this one fact, that the power claimed to be exercised by the judges might have very disastrous results. The abuses which might be committed by their inferior officers would soon fill India with discontent. In this case, the family of Moro Ragonath, knowing nothing of the purport of the writ, but as it was described by the Portuguese, were on the point of proceeding to Bombay, when they were stopped by the Governor. The young man was restored to his uncle, and the parties who had applied in the first instance to the Supreme Court, then applied o it for a Habeas Corpus. He could but lament exceedingly, that the judges should have thought themselves, under such circumstances, bound to comply with the application; and he still more lamented the consequences which ensued from issuing the writ. When it was done, Sir John Malcolm was applied to by the guardian of the boy, and knowing that he did not fall within the jurisdiction of the court; and knowing too, that by an express treaty, he was exempted from the judicial interference of the East-India Company, for these persons were Bramins, and exempted from all such jurisdiction: Sir John Malcolm, knowing all these circumstances, did, when applied to, interpose. A great excitement was caused among all the people, whose privileges, secured to them by treaty, were invaded by this act of the Supreme Court, which persisting in the exercise of its authority, issued another and another writ. Hon. 1378 Members seemed to suppose that the interference of the Governor was against the wishes of the natives; the fact was the very reverse; they dreaded the authority of the Supreme Court, and were anxious not to be subject to its jurisdiction. He would then assure the hon. Member for Clare, that no petty jealousy influenced the conduct of Sir John Malcolm, he was above any such thing; but he was obliged, though unwillingly, to interfere for the protection of those persons against the Supreme Court, whom the East-India Company were bound by treaty not to subject to its authority. He meant, certainly, to contend that, on general principles, Sir J. Malcolm did right by interposing, and he could fortunately confirm this view, by a minute made by the Marquis of Hastings, when on a tour in the provinces. In a letter addressed to the Chairman of the East-India Company in 1818, he says, "It is a curious circumstance, and one which I cannot suppress, that in all the annexations that have lately taken place, the only fear of the natives is, that our judicial system should be introduced. As far as it has been introduced t has been wisely planned, and uprightly and temperately administered, but it is not fit for the natives. The delays and vexations to which they may be subjected are evils, in their eyes, of no small character, while the prejudices of the high-caste people cannot be overcome." These observations were applied to the country courts situated amongst the people, and they, therefore, must be still more disgusted at being compelled to go many miles to the Supreme Court, the forms and the proceedings of which were not less intricate than those of the provincial courts of the Company. He might quote many similar authorities, but he hoped that one would satisfy all impartial persons, that Sir John Malcolm had sufficient ground to interfere and protect the natives, who asked him to do so, against the illegal authority of the Supreme Court. With the most upright intention that gentleman wrote a letter to the Supreme Court, imploring the judges to wait till a reply was obtained to the despatch he had immediately sent off to England. The judges, instead of receiving this Letter in the spirit of conciliation in which it was written, treated it as an additional violation of their privileges. He would appeal to the House if there were any 1379 propriety, in a question of doubtful jurisdiction, where nothing would have been sacrificed by waiting: for the result of the appeal to the higher authorities at home, if it were consistent with the calm temper of a judge, to treat the letter, making such a proposal, as little less than an insult. It was greatly to the honour of Sir John Malcolm, and he would mention the circumstance to satisfy the hon. Member for Clare that no feelings of jealousy or ill will dictated his conduct, that in the despatch which he sent home on the occasion, he pronounced a justly-deserved eulogium on a judge whom he highly valued when alive, and whose death, notwithstanding the little collision which had taken place between them, he sincerely regretted. Sir Charles Chambers, however, did not live to see the affair brought to a termination. The decision of the highest authorities here, when applied to by Sir John Malcolm was, that the Chief Justice of the Supreme Court had no right or authority whatever to extend his jurisdiction, and send his writs of Habeas Corpus, beyond the well-understood and long-defined boundaries of the court. In his opinion, those authorities were perfectly correct, and the decision of the Privy Council was fully justified, both by expediency and by Acts of Parliament. It. never was intended that the Supreme Court should have power over the native chiefs, and the decision of the Privy-Council was accordingly consistent, both with practice and principle. He was surprised to hear an hon. Member contend, that the case was not fully before the Privy Council when it decided. Sir John P. Grant had sent his own statement to this country, and the case was argued by those well acquainted with the law, and well acquainted with the facts, and it was heard by persons perfectly competent to decide, possessing both legal knowledge, and a knowledge of the interests of India. He could not conceive a case more fully argued, or more carefully examined; and he was at a loss to know what exception could be taken to the solemn decision. That being the proper tribunal to hear such a case, he could not conceive for what purpose that House was then called on to review the decision of that court. It would be highly wrong in that House to re-hear and re-try a case that had been already decided by a tribunal far more competent to decide on such a subject 1380 than the House of Commons. He did not mean to deny the power of that House to interfere, but he put it to the wisdom of the House, if it would be expedient. Sir John P. Grant, he would also remind the House, had been recalled; his case would undergo another investigation, and was it consistent in that House to step in between him and that investigation. That judge, in the exercise of his authority, had thought fit to shut up the Supreme Court at Bombay for three months; thus, while he sought to extend the powers of the court over those who were not under its jurisdiction, he had excluded all those from redress for whom that court was the only tribunal. From April to June did he stop all the legal business at Bombay, and prevent all persons injured or defrauded from obtaining justice: the consequence was, that men set the law at defiance. These proceedings were so extraordinary, so unauthorized, that Sir P. Grant had been called home to account for his conduct. It would be unfair towards him for that House then to institute another inquiry. He would observe, however, that this judge bad not been, as the hon. Member for Clare seemed to suppose, degraded before trial; no intention existed any where to degrade either him or the high office he filled, but it was impossible not to order an investigation into all the circumstances connected with his extraordinary conduct. It had been asserted that a hardship, or even an injury, had been inflicted on Sir John P. Grant, by not raising him to be Chief Justice; but would it have been prudent to place him in that situation? Although the Members on his side of the House admitted that this judge had acted on a conscientious conviction, the Members of the other side did not affirm that this conviction was correct. Not a single person, as far as he could learn, supposed that Sir John P. Grant had taken a correct view of his duty, and of the authority of his office. With such an impression he did not think it possible to contend that he ought to be raised to the situation of Chief Justice. His noble friend, the President of the Board of Control, could harbour no intention of degrading the character of a judge, and of degrading the judgment seat. That noble person could not forget the respect due to the judicial office, without forgetting the rank he held in society; without forgetting the 1381 talents, and virtues, and services of his father, the name he bore, and the title he inherited. His hon. and learned friend (Mr. R. Grant) had, the other evening, in reference to something which had fallen from him, quoted the works of Sir Wm. Jones, on the subject of the establishment of the Supreme Court: he wished his hon. friend had proceeded with his quotation, and had read to the House his first charge to the Court at Calcutta, for he would have found there a passage which bore strongly on the present question, and justified Sir John Malcolm. "The object of this court," said Sir Wm. Jones, in a charge that could not, for its many beauties, be too much admired, "which is thus supplied with ample power is to do strict and impartial justice, under a government very peculiarly constituted. In administering justice we must not innovate. The natives of these provinces must be indulged in their prejudices, civil and religious. They have, on very many points, their own peculiar feelings, and those feelings we are bound to respect. Now, this end will be best attained by upholding the supremacy of the executive government." This was a very decisive opinion, and the man who delivered it was a judge, but a judge superior to all the prejudices of his profession or his office, and who was persuaded that it was the duty of the judges in India to support and uphold the supremacy of the government. He knew, equally well, what was due to the feelings of the natives, and to the high functions of the government. Happy would it be for the people of India, should every judge conduct himself in the same prudent, cautious manner, as this great and wise man. Should, unhappily, the reverse be the case,—should collisions ensue between the courts and the presidential governments,—and should the natives be apprehensive, contrary to the faith of our engagements with them, of being subjected to the power of those courts, the consequences must be most deplorable. Dreading the effects of a process which they did not understand, they would conceive themselves at once insulted and oppressed. Having hitherto enjoyed many advantages from our rule in India, should the reverse ever happen to be the case, our empire there would either not be of long duration, or it would have to be maintained by a continual contest. For that House to interfere, would only serve to revive the 1382 apprehensions which were fast subsiding. Conceiving that the documents already alluded to, and the decision of the Privy Council, were sufficient to settle the legal part of the question, the remarks he had made would, he hoped, satisfy the House of the inexpediency of interfering with regard to the political part of the question. On these grounds, he saw no reasons for the hon. Member for Beverly pressing his Motion. With respect to any thing which has occurred since the decision of the Privy Council, it would hardly be proper for that House to inquire. Sir John P. Grant was under orders to return home, and his case would come before the best tribunal for calmly investigating it. The Motion, moreover, would gain nothing, as there was no official correspondence between the Judges of India and the Board of Control, except in some few instances. As far as he was aware, the government at Bombay had no correspondence with the Board of Control, but only with the Court of Directors. He should be far from meeting the Motion with mere technical objections if any thing could be got by it; but as it was, conceiving that it could only tend to keep up irritation and apprehension, he should meet it by a direct negative.
§ Mr. W. W. Wynne
agreed, he said, with the hon. Member who had just spoken, that the House of Commons was not the proper place to try the dispute between the government of Bombay and the Supreme Court, but the Motion before the House had no such object. The House was not called on to declare which of these two parties were wrong, but to decide if it. should not have official cognizance of a letter, written by a great public functionary, which had already appeared in print. He was satisfied that both the public functionaries in India had acted from conscientious motives, and he thought Sir J. P. Grant might reasonably have arrived at the conclusion he had adopted, and have acted as he had done. [The right hon. Gentleman then quoted the passage of the Act, appointing the Judges of the Supreme Court, already quoted by Mr. O'Connell, to show that the judge might conscientiously have formed the opinions on which he had acted.] The same interpretation was put on the Act in 1827 by the Chief Justice of that day, who declared that "the Supreme Court had a jurisdiction over all native and other subjects." He did not 1383 mean to dispute the decision of the Privy Council, which was different, but only to contend that no blame could be cast on the judge for giving an interpretation to the Act different from that adopted by the Privy Council. Sir J. P. Grant, acting on his own interpretation of the Act, thought there had been an unlawful interference with his authority; and he therefore concluded, as that authority was essential to the public welfare, in which he professed himself much interested, that he was bound "to exert the strong arm of power, to effect that which he conceived he had a right to effect, notwithstanding any opposition that might be offered to him." He did this, like a conscientious man, on his own responsibility, and at his own risk. Parliament was not called on to examine the dispute in its legislative capacity. The conduct neither of Sir J. P. Grant, nor of Sir John Malcolm, was perhaps deserving-blame, but it would be well for the House to investigate in what degree the Supreme Court was, or ought to be, dependent on the government, and to define the authority of each of these conflicting bodies. He would like to know in what manner any decree of that court, or any other court, could be enforced, if it were left optional with the government to step in at any time, and from any views of expediency, public or private, forbid the execution of that decree, instead of lending its power to carry it into effect. In this country, such collision never happens, and all such matters are reduced into regular order; but in what situation must the courts in India be placed, if they have no peremptory process to enforce their decrees. He conceived that the independence of the judges in India ought to be enforced by that House, and therefore it ought to define precisely the limits of their power, and the extent o their jurisdiction. This was the more necessary, because he knew, from the experience he had had while presiding over the Board of Control, how very difficult it was, to find persons of sufficient experience and ability to fill the office of a judge in India. Every thing in the power of the legislature ought, therefore, to be done to encourage men of integrity, learning, and talents, to undertake the office. A reflection of that nature ought alone to have been sufficient to have prevented the noble Lord from writing the celebrated Letter so often alluded to; and when he remembered that the Government 1384 could only look to the courts, and to an ordinary process at law t6 enforce its own orders, unless it meant to govern only by violence and the sword, generating confusion and anarchy, and becoming a curse instead of a blessing to the people, he thought that the Government was playing a losing game in weakening and opposing the authority of the Supreme Court. If its respectability were not maintained, it would be unable to execute its duties, it would be inefficient to administer justice, and would be only an expensive plague. Differences between two such high authorities, at so great a distance from any higher authority to settle their disputes, must be attended with serious evils. If the governor had any doubts as to the propriety of the proceedings of the court, it was his business to send home for instruction; he had no authority to interfere with its writs. He regretted very much the language which had been used by the noble Lord, in the letter already alluded to, particularly that part of it in which he seemed to intimate that it was necessary to keep down the judges of India, and even by intimidation, if gentler means failed. To that doctrine he could never subscribe, looking, as he did, on the independence of the judges as one of the surest means of enforcing obedience to all the legal orders of the government. He could not help expressing his surprise that no copy of the Letter in question had been kept, for it certainly was a letter of great importance; it pledged the Board of Control for the time being to a certain course, and to certain opinions. As the writer was the responsible Minister of the Crown, and the head of that department; as by his advice all judges in India would of necessity be appointed; any communication coming from that quarter must necessarily be one carrying with it the weight and authority of an official despatch. It was in vain to say that it was a private letter from one private individual to another; it was a communication from one great public functionary to another. Suppose the Duke of Wellington addressed a letter to one of our Ministers abroad, would it be contended that such a Minister would feel himself justified in disregarding that letter, merely because it did not formally come from the Secretary of State, the official organ of communication? and, on the other hand, the letter of the First Lord 1385 of the Treasury would pledge the Government as much as any official despatch could. If the House were called on to vote, he should vote for the Motion, though he doubted whether the coming to a vote at all were desirable.
Mr. Cutlar Fergusson
said, he hoped the House would do him the justice to believe, that no relations subsisting between him and the East-India Company could have the effect of influencing the vote he intended to give on that occasion. He had given the question then under discussion the fullest, and, he trusted, the most dispassionate consideration, and that led him to the conviction that the Court of Bombay had decided in error. He had had the advantage of passing seventeen years of his professional life in India, in the course of which a considerable quantity and variety of business came under his observation, and within the sphere of his practice; he might say, perhaps, that he had more professional business than any man in India; yet in the course of that he never had the slightest reason to imagine that any judge could think of saying that there was no native of India not subject to the jurisdiction of the British courts in India. He was quite sure that no lawyer would differ from him, when he said that no natives were subject to British courts except such as were distinctly specified to be so. If the inferior court were wrong —of which he had not the slightest doubt —the Supreme Court was not less in error. Had such doctrines as were now contended for by the Supreme Court been maintained since our first conquests in India, our hold of our Indian possessions would now be extremely insecure. A pledge has been held out to the inhabitants beyond the pale of the English courts, that they should be allowed to retain their Hindoo laws to which they were attached. Had they supposed that they would have been subjected to laws with which they were unacquainted, they could not have been induced to submit to British authority. The liability to British laws, on the part of Hindoos, was what no judge had ever thought of, and it was a doctrine which he expected would never receive the sanction of any man acquainted either with the law or with the state of India. It was, he conceived, indisputable that English laws had their local boundaries in India. On these grounds, then, he thought there ought to be a declaratory act, and, that it 1386 would be well worth the attention of his Majesty's Government to consider the expediency of some such measure, stating precisely what the law was, and putting the question beyond further dispute. If the Court at Bombay had the right assumed by it, and could exercise all the privileges of a Court of King's Bench, then it might remove all the circuit cases within its own jurisdiction, and itself try every case with English judges and English juries, and bring up all the witnesses and parties before it. He need scarcely tell the House that these matters had already excited the greatest alarm amongst the natives of India, and that the supposition of its being possible for the Supreme Court to exercise such a power, would throw all India into a ferment. The present was the case of a writ of Habeas Corpus, and the old man by whom the return was made stated, "I am the relation of Moro Ragonath, and I have never been the servant of the English government; but at the time you took this country you gave me your word that I should live without fear. Depending upon that I remained at Poonah, and my grandson, Moro Ragonath, was placed under my charge. The said boy is now fourteen years old, and for that reason, according to the Shastra of the Hindoos, he is without knowledge, and obliged to live under the charge of the person who has the care of him; and there is nothing more done for him than is usually observed in Hindoo families. After the death of his mother I took charge of him; and without the authority of those from whom I received him, I will never deliver him up." This was, he, thought a sufficient proof that the person to whom the writ was addressed had a higher reverence for the laws of his; country than for our institutions; and that it would be doing him and all his caste a great injury to subject them to our tribunals. They would look with horror on any process by which women and children might be taken from their homes, to the disgrace of their families, as committing the grossest possible outrage on their feelings and prejudices. Though he had no doubt that the Chief Justice at Calcutta, and the Court at Bombay, had acted from the most conscientious feelings and convictions, yet he was bound to say, and he said it with pain, having lived on terms of friendship with them both, that he thought them mistaken. He was also obliged to 1387 admit, that he thought they had both indulged in language which the survivor must now regret: neither did he conceive, from the course adopted by them, that Sir John Malcolm could have acted otherwise than he had done. He held it to be sound doctrine, that a writ going beyond its bounds was nothing but waste paper. It might be said that a writ of Habeas Corpus was a writ of great authority—a prerogative writ; but yet even at their own door it was one of no force. Let a writ of Habeas go down to Scotland—let the bearer of it go down and seek to remove one of the prisoners from the gaol of Edinburgh, and if he raised any disturbance, he would probably soon find himself an inmate of that gaol. Any man was, in his opinion, bound to disobey an illegal summons, which was all that Sir John Malcolm had caused to be done. That gentleman would not allow the Supreme Court to assume an omnipotent power and annihilate those superior courts in which justice was administered to the natives by laws congenial to their feelings. Some Members had expressed themselves as if the natives would be deprived of all means of obtaining justice unless the authority of the Supreme Court were upheld; the reverse, however, was the case. The provincial courts administered justice to the natives; they understood the practices and the laws of these courts, and it was their authority which the Supreme Court had weakened. The question was not to be decided exclusively by English laws and practices, but by the practices of Hindostan. In both the cases under discussion the individuals were out of the jurisdiction of the Supreme Court. One was resident at Poonah, and the other was imprisoned by the order of a provincial court. It was part of the law of Hindostan, that beyond the jurisdiction of the Supreme Court the Adawlut Court should have jurisdiction, and consequently the measure of the Supreme Court was undoubtedly illegal. He approved, therefore, of the interference of Sir John Malcolm, who had properly exercised his power to prevent the privileges of one court being infringed on by another court which had no jurisdiction. The governor was bound to support the legal proceedings of the Supreme Court, but he was equally bound to oppose its illegal proceedings. He was the only authority on the spot to which an appeal could be made, 1388 until the higher authorities in England decided the question, and prevented future disputes by lessening the authority of the Supreme Court. Without finding fault either with the conduct of Sir John Malcolm or Sir John Grant, he wished for a declaratory act, and for an end to the authority assumed.
§ Mr. Robert Grant
explained, that he still was of opinion that the decision of the Privy Council was extra-judicial, because the native suitors were not heard. He wished for a declaratory act.
Mr. Secretary Peel
said, he could not allow the present discussion to close without making a few observations. When he considered the great responsibility which devolved upon public functionaries, he had no hesitation in saying, that, when guilty of error, if it were found that they acted at the same time with upright intentions, and were actuated by conscientious feelings, he had not the slightest hesitation in saying that they were entitled to the most indulgent consideration. But if, as in the case of the governor of Bombay, it was found that the parties had acted in a manner the most discreet, prudent, and proper, he thought they had a double claim to be supported by the Government; and that claim would, he thought, be recognized by the House. He wished to have it understood, that he desired, like his right hon. friend Mr. Wynne, with whom he concurred, to leave the legal question entirely out of view—they had nothing to do with the legal question. The hon. and learned Member for Clare, however, had discussed the legal question; a proceeding which had been rendered altogether unnecessary by the decision of the Privy Council—a tribunal much more competent to decide such a question than was that House. The authority of that decision, he believed, would not be lightly questioned, when it was recollected that two Chief Justices, Lord Tenterden and Sir N. Tindal were present, as also Lord Wynford, and his right hon. friend, whose habits, professional and official, so fully qualified him for assisting in such a decision. He had no doubt the House would feel that it was not necessary to place the independence of Indian judges upon a lower footing than that of English judges; this was not a case affecting their independence, but a question relating to the assumption of authority unwarrantable and dangerous. For the exercise of 1389 authority beyond proper boundaries, he apprehended an action of trespass might be brought; but for the exercise of unwarrantable authority within acknowledged bounds, there lay no such remedy; and, should no adequate remedy exist, it must be the business of the legislature to devise one—in doing which it would, of course, be influenced by no considerations but the nature of the case and a due regard to its own character. With reference to the injury our authority might sustain in India by the conflict between the Courts and the Executive Authority, the House should recollect that it was impossible to suppose that the natives of India had the same respect for English courts of justice that we had. The question ought not to be argued as if the Indians had a great respect for the jargon of our laws, which we ourselves did not understand. They could have no attachment to laws administered in a foreign language, and couched in forms which even the inhabitants of this country could not comprehend, and which they regarded as contrary to their customs and religion. They did not like a court before which they were dragged from a distance, and the authority of which they did not acknowledge. The claim which the Supreme Court in India made to extend its jurisdiction created great alarm among all the natives, and even in the executive government, as being contrary to the engagements it had entered into with them. The Provincial courts had, on the contrary, merited and obtained the confidence of the natives, particularly under the government of Mr. Elphinstone. The fact was stated in the valuable work of the late Bishop Heber. Those courts are there described as acting on the principles of jurisprudence with a due regard to the prejudices of the natives, and as doing much gradually to accustom them to our laws. The conduct of the Supreme Court had a great tendency to bring these courts into disrepute, and Sir John Malcolm was bound to uphold them as well as the executive authority. Thinking that Sir John Malcolm had only done his duty, he should be ashamed of himself if he had not supported him, and if he had shrunk from the responsibility of sharing his opinions. He thought that Sir John Malcolm had done quite right in addressing the letter which had been mentioned to the judge; he could not adopt a better course, and it seemed to him (Mr. Peel) 1390 the only one that was likely to prevent a collision between the judicial and executive authorities. The letter was intended to prevent any necessity for making known to the public the difference of opinion which existed between them. He believed that the two judges, Sir Charles Chambers and Sir J. P. Grant, of whom he was disposed to speak with all that respect which was due to them, acted on as pure and conscientious motives as Sir John Malcolm. They supposed, undoubtedly, that their construction of the law was correct. With respect to the Letter of his noble friend, Lord Ellenborough, a great many erroneous and unjust impressions had got abroad as to its purport and intentions. He conceded to hon. Members that his noble friend could not—and he did not claim it for him—shield himself behind the privilege of a private letter. A public man had no right to give instructions in private letters, and then say they were private; but at the same time he was sure that the public service could not be carried on effectually unless public functionaries were allowed to write private letters, without having the terms in which they were expressed too severely scrutinized. What he claimed for such letters was, that they should not be exposed to have their terms so severely scrutinized, nor be subjected to such fastidious criticism as public despatches, and he would only claim for the words of his noble friend's Letter some indulgence. He denied that anything in that Letter implied an intention to destroy the independence of the judicial authority, or make it subservient to the views of the executive government. He would take the two strongest passages; the first was that in which his noble friend spoke of Mr. Seymour being knighted, and where he said that as it would not be proper to leave Mr. Dewar without that honour, he should consider how it might be done; he believed it might be conferred by patent, but perhaps it might be conferred through the governor, in such, a manner as to mark the superiority of the executive government over the judicial authority. It would place the governor above the court, and mark him out as the King's representative. By this Lord Ellenborough had no intention to degrade the judges, but to make the people of India aware that the executive government was the supreme power. He objected to the Motion, therefore, as imply- 1391 ing a censure on his noble friend which he did not deserve. Nothing could tempt him to refer to the language used by Sir C. Chambers and Sir J. P. Grant, in consequence of the letter addressed to them by Sir J. Malcolm, more particularly as one of those judges was now no more. Nothing should tempt him to speak with disrespect of the dead; and he would only refer to Sir C. Chambers's charge in as far as was necessary to do justice to the living. The letter of his noble friend must be misunderstood, without a knowledge of the charges to which it in fact referred. Sir C. Chambers, in his address to the court, spoke of the extraordinary letter he had received from Sir J. Malcolm, in which the court was dictated to by persons who had no right to address it, except in the capacity of humble suitors. "A heavy responsibility, the judge said, rested on those who, under the pretext of supporting the Government and the State authority, used their power to extinguish the exercise of the King's authority, and screen their servants from the restraints of the only authority and power which was able to check that tyranny into which irresponsible power had ever a tendency to fall." Here was a distinction drawn between the King's and the East India Company's authority; and the judges assumed that they represented the King's authority, "while the civil government only represented that of the Company. Then the natives were told by the judge that this Letter was a pretext to extinguish the King's authority; against such language and such proceedings he should always protest. His noble friend had stated, that the civil government was above the court, not with any view to interfere with the independence of the judges, but to show that the civil government was the depository of the King's power as well as the court; his noble friend wished to give the President the power of conferring knighthood on the judge, in order to notify to the inhabitants that he represented the King. The other passage of his noble friend's letter to which he would refer, was that which concluded with the comparison of the two elephants. He did not mean to vindicate that manner of speaking of the judges; he did not mean to vindicate the expressions of his noble friend; but he claimed for those expressions the candid consideration which was due to them, as contained in a letter not intended to be published. His noble 1392 friend by those expressions never intended to degrade the King's judges; his whole official conduct was a proof that he could not mean it; and if he had, he would have been guilty of a great public offence. His noble friend meant nothing whatever derogatory to the character of the judges; but his noble friend was justified in saying that he hoped Sir J. P. Grant would review his decision, and that if he should not come to a different conclusion, then he would be rendered harmless by having with him two other judges who were not likely to join with him in opinion, or be opposed to the civil government. His noble friend had not at first advised the King to recall Sir J. P. Grant, though he believed that he had assumed an authority which he was not justified in assuming; and not wishing to advise his Majesty to recall that judge, he placed two other judges with him, in whom the Government could place confidence. Conceiving that the Motion was intended as a censure on his noble friend, he should, on the grounds he had stated, resist the Motion of the hon. Gentleman.
expressed his regret that Government, after having, at so short a period before, expressed its readiness to supply Parliament with all possible information concerning India, should refuse the first paper it had been asked to produce. The question had not been fairly met by his opponents; for all the arguments they had urged about the jurisdiction of the Court at Bombay, and the decision of the Privy Council, had nothing to do with the question. The Letter of Lord Ellenborough was obviously a public document, because it was an answer to representations sent from the Indies before the noble Lord was in office. He was in hopes that the documents he moved for would have tended to justify the Bombay Government. Thinking that the correspondence would at least elucidate that conduct, and being willing to put the professions of the Government, to which he had just alluded, to the test, he should certainly like to take the sense of the House on his Motion.
§ The House then divided—For the Motion 15: Against it 106: Majority against the Motion 91,
|List of the Minority.|
|Bentinck, Lord G.||Rice, T. S.|
|Ebrington, Lord||Thomson, C. P.|
|Grant, R.||Townshend, Lord C.|
|Gordon, R.||Warburton, H.|
|Hobhouse, J. C.||Wynn, Rt. Hon. C.W.|
|Jephson, C. D.||Wrottesley, Sir J.|
|O'Connell, D.||Hume, J.|
|Protheroe, E.||Stewart, J.|