HC Deb 22 March 1838 vol 41 cc1134-66
Mr. W. W. Wynn

presented a petition from a considerable number of the most respectable inhabitants, both European and native, of Madras and Bombay, praying that the power of deciding upon local improvements and other details of Government might be restored to the governors and councils of those presidencies.

Mr. G. W. Ward

said, he was too well aware of the disinclination of the House to enter upon questions connected with our Indian policy, to be surprised at its present appearance. [There were about sixty or seventy Members in the House.] He did not pretend to think this policy unnatural. Information upon such subjects was so scanty, and the pressure of other matters upon their time and exertions was so imperative and unremitting, that he did not feel surprised that gentlemen could not afford leisure or inclination to qualify themselves to give an opinion upon matters relating to a distant possession of the Crown, and which required much pains and study to master. If, however, any case ever chanced to be made an exception to this rule, he thought he was fully justified in saying it was the case he had to submit to the House that evening. The matter at issue, lay in a comparatively small compass, and might be easily mastered. It was, however, a subject which had excited the most intense interest throughout the whole British-born population of India. This feeling had been manifested in the petitions which had been presented to the House, and in the applications which had been made to the court of directors of the East-India Company, and to the Board of Control. The prayer of these petitions and applications, was a simple and legitimate one; it was merely for inquiry, and he did 'not see how the House could refuse that prayer without entirely falsifying the expressions that were used during the debates upon the Indian charter, when it was distinctly stated by almost every person who took part in the debates, that whatever abuses might arise under the charter, if injustice were committed, and redress required, the aggrieved party must look to Parliament for sympathy and justice. He thought, at the time, that this was a wise policy. He was sure that they all felt the want of a connecting link between this country and the distant possessions of the Crown, and he hoped that Parliament would become that link. If they wished to do so, they must not refuse to take into deliberate consideration, practices which were brought before them, and which were supported by the most earnest demonstrations of public feeling. He did not mean to say, that the House was to be harassed by perpetual motions for inquiry; but the greater the power intrusted to individual governors, and the more distant the possession, the greater was the necessity for Parliamentary interference. If he did not show, that there were good grounds for the present motion, if he did not bring forward the most serious and legitimate reasons for investigation, if he did not prove, that great grievances were inflicted upon the British-born population of India, and that they had legitimate cause of complaint against certain recent enactments of the Indian Government, under the charter of 1833, he would admit, that his whole case fell to the ground, and that he had no claim for inquiry, and that the House would do wrong to sanction such inquiry. He had to complain of changes made by the Indian Government which affected the legal rights of every British-born subject in India whether as an individual, as a proprietor, a husband, or a father. These changes had excited feelings of strong, and, as he thought, very just resentment amongst the European population, and this without conferring any benefit whatever upon the native population. There had not been the slightest demonstration of feeling on the part of the native population hostile to the jurisdiction of the Supreme Court, but on the contrary he had presented a petition which contained very strong demonstra- tions of respect and attachment of a large population for the very court whose jurisdiction had been in a great degree superseded. This petition he had presented at the commencement of the Session; he had carefully analysed its signatures, and amongst them he found the names of two hundred of the principal merchants, some being Hindoos, every Parsee merchant of standing or influence, 200 native merchants, and 1,400 British residents, from the thirty-two districts of Bengal. This showed that the parties complaining were not actuated by any petty feeling connected with locality or party spirit, but solely by a common sense of a common grievance. And what was that grievance? It was stated in the first paragraph of the petition to which he had referred, and stated so concisely, and to his mind satisfactorily, that he would read it to the House:— That an act has lately been passed by the Legislative Council of India, promulgated as law, entitled Act No. XI. of 1836, purporting to repeal the 107th section of the 53rd Geo. 3rd, c. 155. That the object of this new Indian law is to render all the British-born subjects of the Crown throughout these territories amenable to the jurisdiction of the provincial courts (many of which are presided over by Mahomedan and Hindoo judges, the number of such judges in the presidencies of Bengal and Agra not being less than ninety-six, and to take away the appeal to his Majesty's supreme court, from which an appeal lies to his Majesty in his Privy Council in all cases in which the amount in dispute exceeds 4,000 rupees. He would beg the permission of the House to allow him to make as brief a statement as possible of the system of the administration of justice in India. That system consisted of the following machinery:—In the first place, there were provincial courts, which were generally presided over by Hindoos or Mahomedans, and which had jurisdiction over cases of only a certain amount. From these courts there was an appeal to the district courts, which were presided over generally by Englishmen, persons with English feelings and education, but whose legal education was necessarily very imperfect, it being almost altogether confined to attending some few lectures at Haileybury College. There was an appeal from these courts to the Commissioners of districts, from whom there was again an appeal to the Sudder Dewany Adawlut; and, lastly, there was the Supreme Court, from which court there was an appeal to the Privy Council in all cases not exceeding 4,000 rupees, or 400l. This was the system of law as administered in that country, qualified only by the Act of 1770, which provided that whenever a case occurred to which no specific law applied, then the judge was to decide according to justice, equity, and good conscience, What these might be, would, of course, vary according to the sentence of each judge, as there was no body of precedents to establish the law. This was the machinery established in India, and it was at once obvious that it established a total dependence of the judges upon the Company—a dependence which was studiously kept up by transferring the judges from one district to another at pleasure. But more than this, they were transferred by the Company from one distinct branch of duty to another; and a man who was one day in the political department, might the next day be in the commercial department, and the day after in the legal department. They were thus taught to look to the favour of the Company as the only road to promotion, and were kept in complete subserviency. He might mention many instances to prove this, but he would content himself by mentioning the names of Sir Edward Colebrook and Mr. Thackeray, who were superseded in consequence of delivering judicial opinions displeasing to the Company. There was another consideration which affected the opinion generally entertained of the judges, namely, their total want of a proper legal education. There were, he admitted, many most eminent men in the service of the Company, but very few of them had a proper knowledge of the English law. The Sudder Dewany Adawlut was supplied with officers who possessed a great knowledge of the Hindoo and Ma-homedan laws, but they were ignorant of the English laws. The proceedings were all carried on in the Persian language. There was no translation to fix these proceedings; and, in short, any one who trusted to find the English law administered at their hands would be wofully disappointed. There was another serious complaint of these courts, namely, that the officers, the adjuncts of all the courts, who were mostly Hindoos, were persons whose venality was notorious. This was stated in the strongest terms by an opulent merchant of Calcutta at a public meeting; and, indeed, the fact was generally well known and admitted. To remedy, in some measure, the want of independence on the part of the judges, and to quiet the complaints that were then very generally made, the supreme court was established in 1770, before which, so extensive and independent was its jurisdiction, the Company itself might be compelled to appear. An appeal existed from this court to the King and Privy Council, but only in cases exceeding 4,000 rupees in value. The Act of the 53rd Geo. 3rd, c. 155, which was passed in the year 1813, and which effected the next great change in Indian jurisprudence, was passed to remedy the inconveniences and hardships to which the natives were put by the exclusive jurisdiction of the Supreme Court:—He would read the three sections of that Act which applied to this subject, viz., the 105th, 106th, and 107th sections:— And whereas his Majesty's British subjects resident in the British territories in India, without the towns of Calcutta, Madras, and the town and island of Bombay, are now, by law, subject only to the jurisdiction of his Majesty's courts at Calcutta, Madras, and Bombay respectively, and are exempted from the jurisdiction of the courts established by the said United Company within the said territories, to which all other persons, whether natives or others, inhabitants in the said territories without the limits of the towns aforesaid, are amenable: And, whereas, it is expedient to provide more effectual redress for the native inhabitants of the said territories, as well in the case of assault, forcible entry, or other injury accompanied with force, which may be committed by British subjects at a distance from the places where his Majesty's courts are established, as in case of civil controversies with such British subjects: Be it therefore enacted, that it shall and may be lawful that justices of peace in provinces, shall have jurisdiction in case of assault and trespass committed by British subjects on natives of India. And be it further enacted, that in all cases of debt, not exceeding the sum of fifty rupees, alleged to be due from any British subjects, to any native of India, resident in the East Indies, or parts aforesaid, and without the jurisdiction of the several courts of request, established at Calcutta, Madras, and Bombay respectively, it shall and may be lawful for the Magistrate of the zillah or dictrict, where such British subject shall be resident, or in which such debt shall have been contracted, to take cognizance of all such debts, and to examine witnesses upon oath, and in a summary way to decide between the parties, which decision shall be final and conclusive, to all intents and purposes. And be it further enacted, that all British subjects of his Majesty, as well the servants of the said United Company as others, who shall reside, or shall carry on trade or other business, or shall be in the occupation or possession of any immoveable property in any part of the British territories in India, at the distance of more than ten miles from the several presidencies of Fort William, or Fort St. George and Bombay, respectively, shall be subject to the jurisdiction of all courts, which now have, or hereafter may have, cognizance of civil suits, or matters of revenue, either originally or by way of appeal, within the districts or places, where such British subjects shall so reside, or carry on trade or business, or possess, or occupy immoveable property, in all actions and proceedings of a civil nature, and in all matters of revenue (except as hereinafter excepted), in the like manner as natives of India, and other persons not British subjects, are now liable to the jurisdiction of such courts by and under the regulations of the several governments of Fort William, Fort St. George, and Bombay respectively. These three sections constituted the law of India for twenty-three years. During that time no complaint had been made respecting the working of them, either by Europeans or natives. They had worked well, and inspired confidence in all who lived under the law. They secured the administration of justice; the expense of a suit in the Supreme Court was not greater than to the Sudder Dewany Adawlut. [Sir J. C. Hobhouse: That is a mistake.] He had the very best authority for his statement. Well, this state of things continued until the passing of the charter, in 1833, as established by the act of the 4th of Wm. 4th, c. 85. A great and most extraordinary power was given by this charter to the Governor-General, and the Legislative Council. They had the power of repealing, amending, or altering any laws or regulations then in force throughout India, with some few exceptions. Under the same act, a law commission was established, of which one of the members was Mr. Macaulay, who had been a most distinguished Member of that House. He wished to speak of the talents of that hon. Gentleman with sincere respect and admiration, but it was his duty to add that it was not always the most brilliant orator that made the safest practical statesman. If Mr. Macaulay had attended a little more closely to the instructions with which he was sent out, he would not have excited so strong a feeling on the part of the people in India by the part which he took there. In those instructions, he was recommended to use the greatest caution and premeditation before interfering with the rights and powers of the existing courts of justice; and the instructions further suggested the absolute necessity, before any change was made, to pay due regard to the distinctions of caste, and to the difference of race and religion which existed in India. The British subjects of India, did not object to the establishment of a principle of equality in the administration of the laws; but, on the contrary, whilst they admitted that the cases of Mahomedans should be tried by Mahomedan laws, and before a Mahomedan tribunal, British subjects should in like manner have the advantage of British laws, administered by a competent tribunal. This was, in his opinion, the only fair mode of carrying out the principle of equality in such a case; and this was all that the British subjects in India required. The British subjects of India had the advantage of this principle up to the year 1836, when this Act, No. 11 of the Legislative Council, was passed, repealing the 107th clause of the 53rd Geo. 3rd, c. 155, and rendering all residents within the territories of the East-India Company, subject to the mofussil courts. On this extraordinary inroad being projected against the rights of the British subjects in India, a memorial was presented to Lord Auckland, from the British-born inhabitants of Bengal, praying that the Act No. 11, 1836, might be rescinded. The following was a passage from this memorial:— That the proposed rescission of the 107th section of the statute of 53 Geo. 3rd, c. 155, being made without any restriction or qualification whatever, it will necessarily follow that suits or actions or criminal trials wherein British-born subjects are plaintiffs and defendants will be tried by laws to which they are total strangers; that the whole proceedings will be in a language to them unknown, and but partially known to their judges themselves, entailing, from the construction of the country courts, the certain occurrence of enormous bribery, and the most corrupt proceedings, and exhibiting the unprecedented anomaly of an English judge trying a suit in British territory, between English subjects, in a language unintelligible to the suitors, and but imperfectly understood by the judge, and such trial to be decided according to laws to which Englishmen are strangers, with appeal only to a higher court of the same character. To this memorial a reply was sent, signed by Mr. W. H. Macnaghten, the Secretary to the Legislative Council, which was penned throughout in a very jesuitical tone, and stated that "neither the 107th section of the charter of 1813, nor the proposed act, had any reference whatever to criminal trials, both relating exclusively to civil suits." The hon. Member then read the following passages from this communication:— You will, therefore, perceive, that the question is not between one law and another, but merely between one tribunal and another; not between the law of England and the law of the mofussil, but between the Sudder Dewany Adawlut and the Supreme Court, bound to act exactly as if it were the Sudder Dewany Adawlut. The rescinding the 107th clause of the Charter Act of 1813 will make no change in the rights of British subjects. Its effect will be merely this, that what has hitherto been done by the Supreme Court will be done by the Court of Sudder Dewany Adawlut. The substantive law remains the same. The law of procedure remains the same. The individual judges only will be different. The law, according to which the Sudder Dewany Adawlut will decide appeals from the mofussil, will, as has already been said, be exactly the same law according to which the Supreme Court is now bound to decide them. In a great majority of cases the judges of the Sudder Dewany Adawlut will, probably, be better acquainted with that law than the judges of the Supreme Court can possibly be. Points may, doubtless, arise which cannot be properly decided without a knowledge of the English law; but it does not appear to his Lordship in Council that it will be more difficult for a judge of the Sudder Dewany Adawlut on such an occasion to learn what the English law is, than it is for a judge of the Supreme Court to obtain information touching the Hindoo or Mahomedan law. As respects the mode of procedure, the Sudder Dewany Adawlut has a clear advantage over the Supreme Court. The Charter Act of 1813 directs the Supreme Court to conform, on appeals from the mofussil, to the practice of the Sudder. With that practice the judges of the Sudder must necessarily be quite familiar; the judges of the Supreme Court have to learn it. The whole of this communication, so far from throwing any satisfactory light on the subject, was couched in studied obscurity of language, and left the vital points, to which the memorialists referred, totally untouched or skilfully evaded. A second memorial was, therefore, addressed in the following terms:— That they (the memorialists) have perused the draft of an Act published for general information, enacting that no persons whatever shall, in any civil proceedings whatever, be henceforth excepted from the, jurisdiction of any courts of the East-India Company's Government (except moonsiffs' courts); and have also perused the letter of Government in an- swer to a former memorial of the British-born inhabitants of Calcutta, praying that the said Act might not pass; and your memorialists are left in doubt whether it is the intention of Government, by the proposed Act, to give to the judges of these courts, and to British-born subjects, in all civil proceedings whatever (not even excepting marriage, and inheritance, and succession to property, real and personal), no other law or rule of civil conduct than what the judges of those courts may deem to be the rule of justice, equity, and good conscience; or whether it is the intention of Government that the laws of England, in some or any cases, shall be administered in these courts. Your memorialists, labouring under the most serious doubts, respectfully pray your Lordship in council will be pleased, in the first instance, and before the said Act be passed, to remove them by a clear and explicit declaration of the intention of Government as to which of these laws it is proposed in future to administer to British-born subjects in all civil proceedings. To this second memorial, which, in his opinion, was a strictly respectful and legitimate application, a second letter was addressed by Mr. Macnaghten, if possible more obscure, more technical, and more equivocal than the first, but compressing all those qualities into an infinitely smaller compass. It was deemed dangerous, no doubt, to give any reasons, so Mr. Macnaghten confined himself to a single paragraph in the following terms:— I am directed by the right hon. the Governor-General of India in council to acknowledge the receipt of your memorial, dated the 15th ultimo, and to inform you that the Act respecting which you inquire makes no alteration whatever in any part of the substantive law. The Company's courts are directed by the regulations to decide according to equity and good conscience only in cases in which no other rules exist. The proposed Act repeals no existing rules. To whatever extent, there-fore, the English law of inheritance, marriage, and succession, is now in force with respect to British subjects residing in the Mofussil, to the same extent it will continue to be in force after the passing of the proposed Act. The question of the British-born subjects of India was what law they were in future to be subject to, and they were told in reply, not that they had a right to British laws, or to any laws, but that to whatever extent they had a right to it before, they might retain it. The object of the petitioners in their present application to the House of Commons was to bring their case before a Select Committee, when they undertook to prove that they had never been subject to the Mofussil law except only in cases where they had undertaken by bond to be so as a condition of residence. They undertook to show also that they were placed in a worse position than before by the Act No. 11, 1836, of the East-India Company, which they could not but consider an illegal Act and informally adopted, because, by the Act of 1834, the East-India Company had no power to abolish any courts, or alter in any way any matters relating to the prerogatives of the Crown. The memorialists of Bengal spoke in the following terms on this point:— That your Memorialists, without presuming to question the general authority of the Legislative Council of India to make laws for the good government of the Indian territories, yet venture to suggest that, as that authority is conveyed by Act of the British Legislature, it must be exercised strictly subordinate thereto and conformably therewith, and consequently that the Legislative Council of India does not possess the power, under the present Act of 3 and 4 of William 4th, c. 85, of abolishing any courts of justice established by his Majesty's charter, without the previous sanction of the honourable Court of Directors for the Affairs of India, nor of abolishing a court of justice established by Act of Parliament, even with that sanction; that the 46th clause of the 3rd and 4th William 4th, c. 85, which gives implied authority to abolish courts of justice, with the sanction abovementioned, expressly limiting such power of abolition to courts of justice established by his Majesty's charter. But the courts of appeal, in cases of British-born subjects, from the courts of justice established in the interior of India, are courts of justice established by Act of Parliament. The right of appeal was, in his (Mr. Ward's) opinion, one of the principal features of our security, one of the palladiums of our liberties; and he was quite at a loss to imagine under what pretence this high privilege should be taken from the British-born subjects of India. He was not prepared to enter upon the legal points of the question, and perhaps he might be told that a Committee of the House of Commons was not a tribunal to decide upon a point of law. This he was prepared to admit; but, at the same time, the Committee might hear evidence, and determine data, to guide them as to the propriety of interfering with the Act of council of which the petitioners complained. In the course of the important discussions which took place in 1833 on the subject of the East-India charter, he recollected, that apprehensions were expressed of the effect of the extraordinary powers proposed to be given to the Government of India, but the answer to those apprehensions was, that Parliament would always be ready to interfere and remedy any abuses of power which might occur. He recollected one hon. Member asking whether it would be possible that trial by jury might be abolished by the new Government, and he was told, that Parliament would at once interpose its authority and render such an innovation impossible; and the debate was wound up by a speech from Mr. Robert Grant, now governer of Bombay, from which he would just read the following passage:— The admission of British subjects into India makes it necessary for us to create a strong Government, but still it will be a Government of law, and of law containing as much of English principle as possible. But hon. Gentlemen should remember, that if the Government in India should make any arbitrary changes it will be controlled by the authorities at home, and also by Parliament; and take what precautions you will, your real security is in the justice of the Government, controlled by the authorities at home, and in the omnipotence of Parliament, which—whatever they are now—will, I doubt not, be perfectly efficient under the new system. He maintained, that the time was now come when it should be put to the proof whether these powers of Parliament were a truth or a mere delusion. The time was come when the powers of the House of Commons should be exercised, at least as far as instituting an inquiry into allegations of such grave importance as those contained in the present petition. He knew he might be told, that in the present instance he was the advocate of an exclusive privilege to a small class. He maintained, however, that such was not the case. The petitioners claimed no exclusive privilege, and if they did he would not stand up to advocate them. All that the British subjects of India claimed was, to be allowed to enjoy the rights which they had always hitherto enjoyed, and which was still enjoyed by the Mahomedan inhabitants of these territories, namely, the right to have their own laws administered by competent tribunals. He should, therefore, conclude by moving that "a Select Committee be appointed to inquire into the allegations contained in the petitions from Madras and Calcutta, and to report to the House in what manner and to what extent the Act of the Legislative Council of India of 1836, No. 11, affected the constitutional rights of British-born subjects in India, the prerogatives of the Crown, and the general interests of the United Kingdom."

Sir J. C. Hobhouse

said, that he had certainly no right to complain of the tone and manner in which his hon. Friend had introduced this very important subject to the notice of the House; and though he agreed with him that they had not a very flourishing audience to listen to the debate, yet if Gentlemen present would afford him an equal share of attention to that which they had given to his hon. Friend, he thought that he should be able to convince them that there was no ground for agreeing to the motion which had just been put from the Chair. Before he proceeded to discuss the merits of the question, however, he must certainly be permitted to observe, that if his hon. Friend had put a substantive motion upon the notices of the day, comprising the course which he intended to call upon the House to adopt, instead of a general notice "to call the attention of the House to the petition from Madras and Calcutta" on this subject, he would have better consulted the convenience of the House, and the highly important claims of the subject matter itself. He (Sir J. C. Hobhouse) had certainly been told to-night, in private, by his hon. Friend, that he intended to move for a Committee, and he had also been prepared for a similar application by his friend Mr. Turton, who had come over from India expressly as the leader of this heavy grievance. He must say, that the hon. Member for Sheffield, as in duty bound to his clients, had somewhat exaggerated this grievance when he spoke of the universal complaints which prevailed throughout India on the subject of this Act, which, as he alleged, affected not only the rights of all the British-born subjects of India, but of the Mahomedans themselves, and of the absolute necessity which existed for the power of the British Parliament to interpose its authority to repeal this most tyrannous Act of Lord Auckland and council. But the fact was, and this was the most melancholy part of the whole case, there was no grievance at all; for he had recently received a letter from India stating, that the "Black Act" as this Act was also denominated, was never beard of; that it was quite forgotten and dead, except when revived by a letter from Mr. Turton from London. Really that the time of the House of Commons should be taken up in this way with complaints absolutely about nothing, he thought, at the least, was rather extraordinary. His hon. Friend said, that this Act affected the rights of all the inhabitants of India; but he must have been aware that this Act did not in any way apply to any persons but those resident in the interior or provinces of India; residents in Calcutta, Bombay, and Madras, were not at all affected in one tittle by it. But although the British inhabitants of Calcutta, Bombay, and Madras, were not affected by this law at all, yet in one of those presidencies, Calcutta, the first complaint had originated, and magnanimous men were those who made it, for they said it did not affect them; it, left them where they were; but they would nevertheless come forward for the sake of those who were in the provinces, and pray for an appeal to the King's Courts in Calcutta, and then his hon. Friend said, they would have the advantage of this palladium of British liberty. But let him ask his hon. Friend if he was aware of one fact—that from the year 1813, when the last charter but one was granted, up to the year 1833, the English, the Europeans in the provinces, had possession of this right of appeal; and the House would be surprised to learn (and this he had no doubt had been most studiously concealed from his hon. Friend, who ought to have been acquainted with the fact) the number of times during these twenty-three years that appeal to what had been termed the palladium of liberty, which was to make men happy or miserable, had been made. Was it 1,000, 100, fifty, or even twenty times? No; but just twice, and no oftener, and it so happened that in both those instances the judges of the Supreme Court were unable to come to a decision and were obliged to go to the judges of the Sudder Dewany Adawlut Court to interpret the law, and give an answer to the appeal. What reason was there, then, for any complaint to be made if the Supreme Government took away that which the inhabitants of the provinces never availed themselves of, and if they had done so, that it would have been only attended with the grossest injustice and partiality? His hon. Friend had said, that the Act was uncalled for, but he would proceed to show that this was not the case; and that the grossest dereliction on the part of the Indian Goment, if not of the people, had rendered it necessary. It was well known to those who had paid the slightest attention to the debates, short and unimportant as they were in comparison with the significance of the questions before the House in 1833, that this very point was discussed in the House; but did any one presume to stand up in behalf of the King's courts in India, and say, that their judicature and power ought to be continued and to go beyond the presidencies of Bombay, Madras, and Calcutta? No such thing. It was quite true, that a proposition was made by his hon. Friend (Mr. C. Fergusson) the present Judge-Advocate, not of as extensive a nature as that which was now proposed, but only that the powers of the Government of India should not be extended over the Supreme Court, or the Court of Mofussil, but over the courts of the three precedencies. The first speech he should quote was from Mr. Wynn:— Let it not be supposed (said that right hon. Gentleman) that I am arguing, that now, when Englishmen are to be allowed to go all over India, they shall be accompanied by the protection of English law wherever they proceed; I wish the privilege to be continued only in the three presidencies, where a great number of Europeans are congregated together. He should next advert to what was said by Mr. Warburton:— If the protection of British law could at once be extended to the natives of India, I would be disposed to take the same view of the question as the hon. and learned Member for Dublin; but, when it is allowed, on all hands, that this is impossible, I think it wise to get rid of a distinction which establishes two classes in the community, as was the case under the feudal system. Lord Sandon also declared his opinions on the same debate, in these words:— Unless the hon. and learned Gentleman who moved the amendment can show that the jurisdiction he wishes to preserve will not extend infinitely beyond the local limits of the three presidencies, I shall vote with his Majesty's Ministers. The exercise of the jurisdiction of the Supreme Court has more than once exposed our power in India to great hazard, and I cannot consent to continue that cause of danger. There will be this great advantage, also, in having the same laws for Europeans as for natives, that it will give us an additional security for their, goodness; because, if European subjects feel themselves oppressed, they will make remonstrance here; and whatever is done for their relief will also be a relief to the natives. It is of great importance to strip adventurers, going from this country, of the notion that they are to have a greater degree of protection than the natives. This was the real answer to all the complaints urged by the hon. Member for Sheffield. If when we had opened this vast country to all European settlers whatever, we allowed them to go there with the notion that they were to be protected in an especial manner; if, instead of conforming to the laws, and submitting to those tribunals to which the natives were obliged to appeal, and by which they regulated their conduct, we suffered them to enjoy an unfair privilege, then adieu to the spirit in which what he hoped would prove the new charter of Indian liberties was framed in 1833, by which an attempt was made to communicate those institutions which made this country so great and happy, and of which he hoped the complaints of the privileged class (the hitherto privileged class) would never be able to deprive the inhabitants of India. The motion made by Mr. C. Fergusson was, as he had said, a very modified one: it only related to the capital towns, and it proposed to deprive the Supreme Government of any power over them. Yet this motion was negatived by a large majority. There was not the least notion of abrogating any power ever possessed before by the East-India Company, or to take away from the courts of the East-India Company any jurisdiction which they before enjoyed. No man thought of so arguing, and the President of the Board of Control, in order that the matter should not be misunderstood, stated, The principle which I laid down when I introduced this measure to the House was this, that, ultimately, there should be no distinction between Englishmen and the native subjects. Is it to be supposed that, in the presidencies, the Governor-General in Council will at once enter upon the monstrous course of legislation which the hon. and learned Member has suggested? I am willing to proceed by degrees to the attainment of my ultimate object; but I will not yield the great principle, that English subjects shall be amenable to the same tribunals as natives. When hon. Members talk of the sacred rights of Englishmen in India. I ask where they exist? Do they forget that the Indian Government at present possesses the power of deportation? I know of no chartered rights which give Englishmen in India the privilege of saying, that they will not be amenable to the same laws as the people about them. I never will consent to such a system as this. If we give absolute power to the Government of India, it is for the protection of the natives. The principle we are about to establish is the first step to improve the character of the natives, and to prepare them to receive the free institutions of England. Mr. Charles Buller also said, That persons going to India ought to conform to the Government established there; and that the laws which are considered good enough for the natives ought also to be good enough for them. He hoped that the Committee would not consent to the continuance of a favoured class in India, which must necessarily excite the jealousy of the natives. This opinion was confirmed by Sir C. Hyde East, Sir E. Ryan, one of the most distinguished judges of the Supreme Court of Calcutta. His right hon. Friend, too, (Sir C. Grey) who ought to know something of India, coincided in the same view. His right hon. Friend had a crotchet on the subject, for he proposed that a locus experientiŖ of about ten miles square should be selected, whence, if the privileges of the Supreme Court were found to be successful, they were to be extended to the rest of India. But where this notion did not interfere with his views, his right hon. Friend joined most heartily in the opinion, that if Parliament clearly understood and adhered to the law of 1833, they should put all the subjects of her Majesty on an equal footing. Sir E. Ryan also declared, in a minute dated the 2nd of October, 1829, That the great extension of the British territories since the charter of 1774, has given to the court a range of jurisdiction which at places remote from Calcutta can only be considered a mockery of justice, if it be not the means of fraud and oppression. Serious inconveniences must be experienced unless the persons allowed to settle in the interior are made subject, with the rest of the inhabitants, to the authority of the local courts. To leave the European owner or occupier of lands, or the manufacturer, at great distances, subject to the Supreme Court, or subject only to the Mofussil courts, with the limited powers which they at present possess, would tend to such a system of fraud and injustice, and leave the natives so entirely at the mercy of the settlers that I think it would be an insuperable obstacle to the allowing Europeans to settle in the interior, &c. On every consideration it would seem desirable to place all classes of his Majesty's subjects in his Indian territories as far as possible under the same laws, amenable to the same tribunals and to the same forms of trial. Yet this was a system in favour of which Mr. Turton promised to agitate until he saw it extended over all India. It was asserted, however, that Englishmen carried their laws with them to the countries in which they settled. Englishmen never did so in India, except to this extent, that they received protection from the Supreme Courts in those cases which came fairly before them. It was, however, as great a fallacy to say, that an Englishman carried English law with him as that he carried Westminster-hall to that country. But this was the first time that an Englishman was supposed to carry with him certain armour for his protection, and to be placed in a different position from the Englishman in the Mauritius, in Trinidad, or Berbice. The hon. Member for Leeds told the House, that the Mofussil courts were ignorant and corrupt, and that they were, in fact, such tribunals as no Englishman could consent to be tried by. Was that true? If so, shame on England which had so misgoverned this vast Peninsula, which had been a source of opulence and fame to this country, as to institute an unsound and iniquitous system of jurisdiction! But he begged to deny the fact. If time served, he could show that, although these courts were not such as they ought to be—although justice was not as well administered by them as it ought to be, still he could prove, that we had no right, if the law was considered good enough for our Indian subjects, to exempt a privileged class belonging to our own country from its operation, and enjoying already so many advantages, which belonged exclusively to those who possessed that distinction. His hon. Friend and the petitioners were likewise misinformed when they supposed, that the present Act was the first to deprive British subjects of the privileges which it was stated they were so desirous to obtain. Why, by the Act passed in 1813, the right of appeal was allowed only to British defendants and not to British plaintiffs; and if the deprivation of this right worked such monstrous injustice at present, how did it happen that, for twenty-three years, no plaintiff ever complained of the loss which he was compelled to undergo? That fact was alone sufficient to upset the whole case of his hon. Friend, namely, that this power of appeal was given only to the defendants in cases wherein a similar power of appeal would lie for the natives to the Company's Supreme Court, and yet not a singe complaint was urged by plaintiffs against the hardship of withholding from then this precious right. He was surprised to hear his hon. Friend, who had evidently: bestowed much attention on this subject, state, that British residents stood in need of a safeguard in India. Did he know how India was governed, or how our government of that peninsula was maintained? Had he ever heard or read of a difference between the races of India? Did he know that we were there in the place of conquerors, with a Government maintained by a vast army, which, he was sorry to say, ex necessitate rei, was described and confessed to be despotic? Tell him that an Englishman, one of the conquerors and of those who still maintained their conquest, wanted a safeguard in India Why, in such a province, the great difficulty must be to get a native who dared almost to look an Englishman in the face The Commons ought to be glad, that their Indian Government, in a moment of sympathy for their subjects, stood forward to vindicate the principle of an equality of rights; and if, on this occasion, instead of encouraging its inclinations, they endeavoured to repress its efforts, they would not only fail in their duty to it, but to the natives of India and to the country which had sent them to legislate not only for England but for all her possessions The hon. Gentleman had laid great stress on the advantage of the protection of forded by the King's Courts. He was not going to say anything disrespectful of, the King's Courts, but he was obliged to speak the truth. He spoke in the presence of those who knew much more about the subject than he did, and he put it to them whether, if the protection of the King's Courts meant the right of taking the natives from Sohagur to Calcutta, it was any more than a confiscation of their property? He found the following account of the manner in which justice was distributed by the King's Courts in Madras and Bengal:—"The expenses of litigation in England are so heavy, that people daily sit down under wrongs and submit to losses rather than go to law; and yet the English are the richest people in the world. The people of India are poor, and the expense of litigation in the Supreme Court is five times as great as the expense of litigation in Westminster-hall. An undefended cause, which might be prosecuted successfully in the Court of King's Bench, for about 8l. sterling, cannot be prosecuted in the Supreme Court under 40l. sterling. Where our English barrister receives a guinea, a barrister here receives two gold mohurs, more than three guineas. For making a motion of course, an English barrister receives half a guinea, a barrister here receives a gold mohur. Officers of the courts are enabled to accumulate in a few years out of the substance of ruined suitors fortunes larger than the oldest and most distinguished servant can expect to carry home after thirty or forty years of eminent services. I speak of Bengal, where the system is in full operation. At Madras, the Supreme Court has, I believe, fulfilled its mission. It has done its work; it has beggared every rich suitor within its jurisdiction, and is inactive for want of somebody to ruin. This is not all. Great as the evils of the Supreme Court really are, they are exaggerated by the apprehensions of the natives to a still more frightful magnitude. The terror with which it is regarded by them is notorious. Within the last few months, in consequence of an attempt made by some persons connected with that court to extend its jurisdiction over the suburbs of Calcutta, hundreds of respectable and wealthy natives petitioned the Government, in language indicating the greatest dismay, 'to give to every English defendant in every civil suit a right to bring the native plaintiff before the Supreme Court is to give to every dishonest English man an immunity against almost all civil prosecution.'" This character was given of the jurisdiction of those courts by Mr. Macaulay, and was confirmed in much stronger language by Mr. Ross, Colonel Morrison, and Mr. Shakespeare. His hon. Friend had said, that Mr. Macaulay would have done well not to have legislated so quickly in adopting the suggestion of the law commission with respect to the act under consideration. The law commission had nothing to do with the matter. Mr. Macaulay only assisted the Governor-General in council when this Act was passed, which was confirmed by the governors of Madras and Bombay in council, and which was now objected to by Mr. Turton. The great merits and high genius of Mr. Macaulay, all parties acknowledged in and out of that House; and even if he should have that act fixed on him, he did not think it would be detrimental to his fame. He was convinced that the government of India, in taking this step, did so for the purpose of carrying into effect the charter of 1833. There were in India a number of British who were holders of land, and if to suit their wishes the English common law of landlord and tenant were introduced, the inevitable result would be great disorganization and confusion. The only remedies on this head properly applicable to India were those now in force, namely, the laws of replevin and distress. His hon. Friend had concluded his speech with what he had not expected to hear from him, namely, a doubt as to whether or not the Indian government, in respect to this Act, had not exceeded its powers. His hon. Friend admitted he was not lawyer enough to decide the point, but would throw it out whether or not the act of the Legislative Council did not interfere with the prerogatives of the Crown. That objection he could, in a very short time, dispose of. In the first place he had to observe, then, when the debates took place in Parliament on the India Act, the British Legislature decidedly contemplated giving to the Indian government jurisdiction over the Supreme as well as over the other Indian courts. The India Act was express upon the point, and in the list of exceptions to the clause describing the jurisdiction given by it, there was nothing which could possibly be construed into an exemption of the Supreme Courts. The Act forbade the abolition of any court established by royal charter, but, short of abolition, the Indian government was empowered to do with them as they might deem proper. His hon. Friend had devoted a great deal of attention to asking what, under the Act of which he complained, was the law. But the fact was, no alteration was made in the law: it was exactly the same as it was before 1836; and if the hon. Member sought further assurance on this head, he had but to refer him to the answer of Mr. Macnaghten to the complaint of the petitioners. "But," said the hon. Member, "what a shame to have these provincial courts in India deciding on questions of English inheritance, marriage, or divorce." But here was an error. The provincial courts would not have to decide on any such question. If both the parties were British, they need not go at all to the provincial courts; they might, in the first instance, address themselves to the King's courts, and there ruin themselves to their hearts' content. His task in defending the government of India—a task he entered upon as much from duty as inclination—now drew to a close. He fully granted that Parliament might and ought in cases of injustice or tyranny be appealed to by British subjects, but submitted that it would establish a most pernicious precedent if, where no case was or could be made out against the Indian government, they were to interfere with its acts, or control the powers which it exerted, so long as it did so in strict conformity with the provisions of the statute of the British Legislature. It was to the great credit of the Indian government that for many years past the British public heard little or nothing about it; and that, without exciting any great resistance, or getting up what was called a grievance, it had so long successfully controlled and maintained the sway of a vast empire. Such being the case, he hoped the House would see the propriety of rejecting the motion of the hon. Member for Sheffield. But supposing a Committee were granted, and called together to-morrow, what, he begged to ask, could it do?—what evidence could it collect?—what documents refer to which were not, at that moment, before them? There was, to be sure, Mr. Turton; but all the evidence he could give was detailed in his pamphlet. There was Sir Charles Grey, but he was a Member of the House, as were also his right hon. Friend, Mr. Cutlar Fergusson, Mr. Hogg, Lord William Bentinck; and these four Gentlemen could, in their places in the House, state their opinions on the subject quite as well as if examined by a Select Committee. Mr. Macaulay had not yet returned home, so that his evidence, which, after all, was the only one much to be desired, could not be heard. Under these circumstances, he hoped his hon. Friend would let his motion drop, and allow him to substitute for it one to the following effect:—"That the minutes of council on which was founded the Legislative Act (No. 11) of 1836 be printed."

Sir Charles Grey

hoped, that the circumstance of his having presided for several years over a Supreme Court, as well as of his having been appealed to by the right hon. Baronet who had just sat down, would obtain for him the indulgence of the House while he offered a very few observations on the motion under consideration. In the first place, he had to observe that he was a little at a loss to understand the tone and manner of the right hon. Baronet in referring to him and his opinions upon the subject; and he begged to add, that if he rightly understood that tone and manner, the right hon. Baronet laboured under a misapprehension as to the part which he was prepared to take on this occasion. He had come down to the House with the intention of voting against the motion of the hon. Member for Sheffield, not from thinking that there was no ground for inquiry or consideration, but, because, he felt it was not likely that the appointment of a Committee would lead to a full and satisfactory investigation, or any report on which the evils complained of, if they existed, could be removed. This belief, he was bound to add, was much strengthened by the empty appearance the House presented. The right hon. Baronet had, however, gone far in making him a convert, not to, but from, his opinions; for having heard him bring forward the charges he had, and speaking of those charges as a Queen's Minister, who, of course, was to be supposed to know the subject of which he spoke, he had certainly some doubts as to the course it would be most honourable in him to adopt. As, however, he hoped to have some more effectual means of vindicating his character, and that of his brother judges, from the imputations which both directly and indirectly had been levelled at them, than was presented by the offer of a Select Committee, he had determined to keep to his original resolution, and to vote against the motion of the hon. Member for Sheffield. This was not, indeed, the first time the conduct of those courts had been called in question, not openly but secretly, and the present proceeding brought to his mind the recollection that he had been afforded an opportunity by the late Governor-General (Lord W. Bentinck) of vindicating himself and his brother judges against every charge which had been brought against them. That defence was in print; and if the right hon. Gentleman would consent that the document, with the other papers he had moved for, be laid before the House—if he were enabled to appeal to that document, he should then feel it incumbent on him to vote against the appointment of a Committee. Before proceeding to state his opinions upon the question, there were two or three points on which he wished to make a few remarks, with the view of clearing the way to a right understanding between himself and the right hon. Baronet. In the first place, the right hon. Baronet must allow him to say, that with respect to India he had yet much to learn, and much to learn too which nothing but a residence in India could impart. The want of this knowledge had caused the right hon. Baronet to fall into several misapprehensions. He had said, for instance, that the British residents in India had no interest in the present motion, inasmuch as it had reference solely to the country courts. Did the right hon. Baronet suppose that the British bankers or merchants resident in India might not occasionally have transactions which would oblige them to have recourse to the country courts, or that persons usually resident at Madras, Calcutta, or Bombay, never took journeys into the interior? There was no individual who was not obliged, in the course of his transactions, to go into the interior, and, consequently, he was likely to be engaged in cases in country courts. The right hon. Baronet appeared to him also to make some little mistake with respect to the equality sought to be established between the British and native Indians, and against which he supposed the petitioners before the House to protest. It was a popular topic everywhere to exclaim against the exclusive classes, but in the case of the British in India the exclamation was out of place. The petitioners in the present instance, and indeed he might say the same for all the British residents throughout India, had no desire to perpetuate their privileges as Englishmen one moment beyond the period that the Government of India raised the natives to a level with them, but they did dislike, and justly, to be degraded to the level of a people whom their own governors declared to be unfit for a free Government, and on whom free institutions could not safely be conferred. When the right hon. Baronet talked of equality, was he aware that the Hindoos did not enjoy the privileges of trial by jury? Was the right hon. Baronet prepared to say, because the natives had not the benefit of trial by jury, and because it was desirous to place them on an equality with the British resi- dents, that, therefore, the British should lose that privilege? Slavery still existed among the Hindoos. Were the British, to preserve equality, to be made slaves of too? Nay, to show the topic in its most ridiculous light, why should not the native absurd and inconvenient laws of inheritance and joint tenancy be extended to the British? and why should not the English residents be permitted, like the Hindoos, to have nine or ten wives? The right hon. Baronet had maintained, with much appearance of triumph, that there had been only two appeals to the Supreme Court during a period of twenty-three years, and thereupon argued that there could be little injury done by the Act of 1836; but it was to be recollected, that the privilege of appeal was only allowed to defendants—a circumstance which, in a great measure, accounted for the fact; and then it was to be borne in mind that the Government of India, from a disinclination to have the somewhat lax system of laws with which it managed to carry on its affairs scrutinised by the members of the Supreme Court, were very likely, as far as possible, to discountenance appeals from the country courts. He begged to apologise to the House for having so long detained them with introductory matter, and would proceed shortly to state his view of the motion which had been made by the, hon. Gentleman behind him. In his opinion the adoption of that motion would place the House in a state of great difficulty. It was well known to all who heard him him that in 1833 Parliament took from the East-India Company their trading capacity, and transferred the whole of it into the hands of private merchants. At the same time, Parliament gave a power to British subjects to purchase land in India, and to hold it for any term—for nine hundred and ninety-nine years, if they so pleased. Now, it was very obvious, that when British subjects were thus admitted—nay, were thus invited to purchase land, and reside in a country with which so many ideas of prosperity and grandeur were associated, a more perfect system of laws must be established than that under which the Hindoos and Mahomedans were living. Accordingly, Parliament did give the Government of India additional powers by the establishment of a Legislative Council, the members of which were nominally appointed by the East-India Company, but were actually appointed by the Crown. The authority of that Legislative Council extended over the whole of India, and over the courts established by the Crown. At the same time, Parliament so far restricted the authority of this Legislative Council, as to reserve to itself the power of altering, amending, or revoking any act of the council with which it might think proper so to deal. He appealed to the words of the act of Parliament to show, not only that Parliament reserved to itself this right, but that it promised to exercise the right on any proper occasion. He now came to the question of to-night. In the first place, had any occasion for interference been represented to the House? In the second place, would it be expedient in the House to interfere? With respect to the legality of the act of the Legislative Council, he was unable to dispose of that question so summarily as the right hon. the President of the Board of Control had done. He did not believe, as that right hon. Gentleman appeared to believe, that Parliament intended to give to the Government of India, through the Legislative Council, the power of absolute abolition. His view of the matter was, that nothing was to be done even approaching to abolition. Review, but not destruction, was the object of Parliament. But he did not rest on this. Neither with nor without the sanction of the directors was the Legislative Council empowered to pass any resolution affecting the royal prerogative. An appeal to the supreme court in all cases, in which the sum at issue was above 400l. was reserved, not by statute, for then the right would have been a legal one, but by the royal charter erecting the Supreme Courts in India. Was it not, therefore, a part of the royal prerogative? But this power of appeal was taken away by the resolution of the Legislative Council. With respect to the expediency of this resolution, he would simply say, that it appeared to him be inexpedient. It certainly was not an unreasonable proposition on the part of the petitioners, that British subjects, residing in all corners of India, being the purchasers of land, and, as purchasers of land, coming constantly in contact with the revenue officers, ought to retain the privilege of bringing their appeals before the Supreme Court. Surely this was a circumstance which deserved consideration. If they could have a tribunal within those walls before which cases might be brought, it would be another thing. But, without meaning to say anything in the slightest degree disrespectful of Parliament, the greatest body in the kingdom, the most awful body on the face of the earth, he must be allowed to say, that Parliament was not the tribunal best calculated for such investigation. A Committee of that House on the subject would be led into so wide an inquiry, that he put it to the hon. Gentleman who had moved for one, whether he thought he could, in the present Session, bring together a Committee, the proceedings of which could be conducted to a satisfactory conclusion and report? There was great risk, that as much harm as good would be done by the report of such a Committe. As he had already said in that case, when speaking of the affairs of Canada, he did not think that the report of the Committee of 1828, had been of any service with reference to those affairs. On the contrary, it appeared to him that that report had acted as a fetter on the Colonial-office. All the Ministers for the colonial department, since the year 1828, however varying in their own opinions, seemed to think it a mark of respect to the Committee of that year to endeavour to work out the suggestions of their report. He was apprehensive that a similar result would follow the appointment of the Committee now proposed, if they were to report prematurely. The evils in India would be much greater than in any of our other colonial possessions. If a Committee of that House were to take a view of the wide and difficult subject submitted to them not sufficiently comprehensive, and if Government were to act on their report, it was difficult to say, what evils might not flow from such a proceeding. For these reasons, he adhered to his original determination of opposing the appointment of a Committee, only hoping that the right hon. Gentleman would add to the papers the opinion which he (Sir Charles Grey) had put upon record on the subject, and the opinion, if any such existed, of the Law Commissioners. Sooner, or later, however, Parliament must take the matter up. They could not evade the task, and it was his most fervid wish, that a better tribunal than now existed, might be established for the control of the subordinate courts in the East-Indies, in the West-Indies, and in our North American colonies.

Mr. Hogg

said, that the right hon. Baronet, at the commencement of his speech, had adverted in strong terms to the course which had been pursued by the hon. Member who had introduced this motion, in some slight attacks in which he had indulged upon the character of the civil service in India. In that attack, such as it was, he entirely concurred. The right hon. Baronet had said, that he thought the debate might have led to a much more satisfactory conclusion, had it been confined to the subject matter before the House. Now, he was astonished, after that observation, at the course which the right hon. Gentleman had himself pursued. The right hon. Baronet, throughout the whole of his excursive discourse, had scarcely at all addressed himself to the matter before the House. He had occupied himself with reading statements to the House, in the truth of which, if he seriously believed, he would have been bound that night to give notice of a Bill for the abolition of the supreme courts in India. If, on the contrary, the right hon. Baronet did not believe those statements to be true—if he did not know them to be true—then it would have been more becoming in a Minister of the Crown to stand up in his place and support the Queen's judges. This, he repeated, would have been more becoming than to read to the House a statement to the effect, that the courts at Calcutta, Bombay, and Madras, were almost what might literally be styled "public nuisances." The right hon. Gentleman had next dilated on the charms of uniformity—a matter upon which they were all agreed; and, difficult as the task might be to attain to uniformity of legislation in India, he hoped that it might yet be accomplished. What said the petitioners? They said, that the Hindoos had their Hindoo law administered by competent judges; that the Mahometans had their Mahometan law adminstered by competent judges. "We (said the petitioners) have our English law also, and, for God's sake, leave us so." At all events, it was surely proper that the existing law should be allowed to remain undisturbed until the new code was framed and perfected. He had spent some time in India, and this was his excuse for occupying the attention of the House upon this subject. He was desirous to point out, not what were the abstract rights of British subjects, but what rights they had positively enjoyed, and how it was pro- posed to alter their condition. The right hon. Baronet had fallen into numerous errors in treating of this subject. Amongst others, was that of asserting, that British subjects could not transmit landed property to their heirs in India. He happened, however, to have the Act of Parliament beside him which gave them this right in perpetuity. The Supreme Court of Calcutta, succeeded, in 1773, to the Mayor's Court, which had existed since 1723, and succeeded to the exclusive jurisdiction with which the latter had been invested over British subjects, in civil as well as criminal matters. This exclusive jurisdiction continued until 1813, when the limitation of the power of British subjects to resort to the interior having been to a great degree removed, British subjects were for the first time rendered amenable before courts of native jurisdiction by the 105th and 106th sections of the 53rd George 3rd. By this state of the law, all parties were contented. The native had his remedy on the spot against the British subject, who had also his remedy by appeal to the Supreme Court at Calcutta, and he too was satisfied. The matter had remained so, within his (Mr. Hogg's) experience, for seventeen years, without a single murmur of complaint. The system he believed to have worked well; and, at all events, why alter it before they had completed the arrangement of the new system which was to succeed it? Throughout those seventeen years he admitted, that there had been only one appeal; but this was only a proof that this right of appeal had acted with a powerful and beneficial effect upon the inferior courts. Practical inconvenience there was none to demand this change. It had been stated, that at the period of the last renewal of the charter, matters had been altogether changed in this respect; but he (Mr. Hogg) could not perceive the force of this argument. The great grievance and source of oppression in the administration of justice in India was the change of appellate court. A great degree of evil had also arisen from the employment of natives, since the year 1813, as judges in suits between British subjects and natives—judges who, being Mahometans or Hindoos, were for the most part ignorant of a word of English, and whose decisions, therefore, although: they might be just, must necessarily be unsatisfactory. This outrage to British feeling is India was particularly remarkable in such cases as those involving the validity of marriages amongst British subjects, or the legitimacy of their offspring, which were also tried before Mahometan or Hindoo judges, although necessarily incompetent to decide a complicated question of English law. Why the decision of such questions should be taken from the Supreme Court, and given to inferior courts, he was at a loss to know. He wished not to cast the slightest reflection on the Company's civil servants; on the contrary, he freely bore testimony to their efficiency; but they passed their time in studying the Mahometan law; they were therefore competent to administer it, and that he readily admitted. In its administration, moreover, they had the aid of Mahometan and Hindoo law officers, but when called upon to administer the English law, they received no assistance whatever. Thus, then, were they called upon to administer a law of which they were ignorant, without legal assistance, while they received it in the administration of the law which they had studied, and perfectly well understood.

Sir J. R. Carnac

, was opposed to the motion on many grounds, amongst which was this—that, as a general rule, every British colony enjoyed its own laws; that the French law prevailed in Lower Canada; that the French and Spanish laws were in full force in all colonies which had ever been governed by French or Spanish authorities; and why, he would ask, should that administrative system be unfit for strangers who came of their own accord to live in those colonies which was not unfit for the natives, and under which they had lived for so many years—nay, for so many centuries? He would ask, also, why should India suffer penalties or inconveniences to which no other British possession was exposed? Why should there be one rule for all our other colonies, and a different rule for India? It had been said, that the education received by the civil servants of the East India Company did not qualify them for the discharge of administrative functions. He would contend, that it was not so. They might not, it was true, be so thoroughly disciplined in habits of legal subtelty as to qualify them for the judicial office in such a country as England; but the question was, did they or did they not possess sufficient knowledge to discharge in this country the duties of a police magistrate, or a justice of the peace; for if they did, and he believed the contrary would not be asserted, they were fully equal to any offices which they might be called on to fill in India. The questions which they had then to decide arose out of social relations so very simple, and so little varied, that they were as competent to the task of determining those cases as men of the best legal education. The complications and refinements of law arising out of a more advanced stage of society no doubt demanded increased legal skill and knowledge; but such was not the condition of India, and it was therefore perfectly unwarrantable to argue against the regulations framed under the Act of 1833 upon grounds so destitute of foundation as those which hon. Members took up in the course of the present discussion.

Mr. Williams Wynn

said, he could have wished this matter to have been previously brought before the Privy Council. He quite agreed with the last hon. speaker that the interests of the natives were of primary importance. When an Englishman went out, he did so, subjecting himself to the local courts, and to the general rules which were established. With regard to the motion before the House, looking at the small number of Members present, he should advise the hon. Gentleman who had brought it forward not to press it, but to accede to the amendment, for it was highly important that the fullest investigation should take place. He trusted that all the papers which had been moved for would be granted, and that the late chief justice of Calcutta would re-produce the minutes on the subject. He must express the deepest regret at the course which had been taken by the right hon. Gentleman opposite, but, at the same time, he was quite sure that he would not oppose the motion captiously. He was ready to admit, however, that the minutes ought not to be produced unless the right hon. Gentleman was prepared to introduce a bill immediately to improve the state of the Supreme Court. With respect to the minutes themselves, he must express his surprise that any man employed as an officer of the Government should use language of a nature so rhetorical as that contained in them, without having first considered the effect which might be produced by it; and he must say that it was really of a description such as he did not expect to see introduced into a public document without some cases being quoted in corroboration of the statements which were put forth.

Mr. Vernon Smith

rose to offer some observations in reply to the right hon. Gentleman opposite, and declared that there was nothing in the minutes which threw any imputation on the courts of judicature, except on the score of the enormous expense incurred in supporting them. If it depended on the Government to reduce that expense, no doubt effectual measures would long since have been taken to secure the desired object; but it arose in a great measure from the extent of the fees given to council, which were much heavier than those given any where else. No such thing as public opinion had been expressed against the law. There was, it was true, the public opinion of the residents of Calcutta, but that was not a criterion on which any reliance could be placed, and there was no indication whatever that the natives of the country entertained opinions opposed to the law. All the blame or praise which was to be derived from the introduction of the measure had been thrown upon Mr. Macaulay, and he was confident that that gentleman would not shrink from bearing the effect of any dissatisfaction which might be exhibited. He, however, thought that great praise was due to him, for his was the first attempt which had been made to put the settlers on the same footing with the natives of the country. It had been suggested that such an arrangement was a species of degradation to the English, but he did not see the force of that observation, and he would beg to inquire whether English settlers should be introduced into the country without their being compelled to submit to its laws as already established? Hon. Gentlemen need have no fear that the Europeans would not receive due protection in India; the greater fear was that the natives would receive too little. He was of opinion that what was commonly called the Black Act was of considerable benefit; and with respect to the expression of public opinion, he agreed with Mr. Macaulay that one of the most difficult tasks of a statesman was to withstand the clamours of those immediately around him, and to look to the interests of the millions whose voices he might never hear, and whose faces he, might never know, and it was with this difficulty that Mr. Macaulay grappled, For the first few years there were no petitions upon this subject, but they increased as greater pains were taken by parties to get them up; and a very active gentleman, Mr. Dickens, the secretary, had much promoted their number by widely circulating letters requesting not only signatures to petitions, but also subscriptions in aid of his endeavours. After all, however, which had been adduced, he saw no sufficient reasons for a Committee. Many papers had been produced—others would be laid on the table, and if they were not sufficient, the hon. Gentleman, the Member for Sheffield, could at any time see more at the office of the Board of Control; but, on behalf of the Government, he thanked the hon. Gentleman for bringing forward his motion and creating a discussion on the affairs of India, which had been heretofore too little noticed in Parliament.

Mr. Elliot

said, that Mr. Macaulay had been blamed for the expressions which he had used respecting the Supreme Court, but he (Mr. Elliot) recollected that the same expressions were used many years since by his lamented friend Sir Ralph Palmer, the chief justice of Madras, who had told him that "the natives had been ruined by the Supreme Court, and that the reason why there was no more business in the courts was, that there were no more rich people to be ruined;" and he did not think that Mr. Macaulay could be blamed for now using similar language. With respect also to the judges of the Zillah Court, they were not chosen from young men; they were taken from persons who had been some years in India; neither did he think that their removal from one court to another was any evil, because the knowledge which they acquired in one place would be of advantage in another; nor was it, in his opinion, improper that Europeans should be subject to these courts, when it was known that the East India Company was very frequently sued in the Zillah Courts.

Mr. Ward

, in reply, said, that the right hon. Gentleman, the President of the Board of Control, had spoken rather contemptuously of the complaints which had been urged upon him, and had said that Mr. Turton had come over laden with grievances. Now, he thought that there was a time when the right hon. Gentleman considered these matters in a different point of view, and that at the early part of his political career a grievance in West- minster was not so unacceptable to the right hon. Gentleman. He still retained the opinions which he had expressed with reference to the Appeal Court; but after the disinclination which had been shown to support a committee of inquiry, and after the promise made by his right hon. Friend to lay on the table other and more valuable information with regard to this Act, he would not divide the House; but, reserving to himself the right to take any further steps which the circumstances of the case might seem to require, he would withdraw the motion which he had brought forward.

Viscount Sandon

remarked, this debate had elicited one important fact, and that was, the great uncertainty of the state of the law in India. He hoped that the points which were in dispute would be ascertained and settled with as much expedition as possible.

Sir J. Hobhouse

entirely agreed with the noble Lord in what he had said with respect to the present state of the law in India. He could only say that this subject had for a long time occupied the attention of Government, and he was happy to state that the criminal code was now finished, and that the Commissioners were now actively employed in preparing the civil code.

Motion withdrawn.