§ LORD G. BENTINCK
said, that in rising on Friday last to address the House, it was his duty to make some observations on the practical legislation of hon. Gentlemen opposite; yesterday it was his duty to bring before the House the case of a laches with respect to the appointment of a magistrate in Lancashire, which he thought must have struck the House very deeply with the manner in which their duties were performed by Her Majesty's late Ministers; and to-day it was his duty to bring before the attention of the House and the country a job which had been committed with respect to the appointment of the Chief Justice of Bombay. At this moment there were two Chief Justices in Bombay. It would be in the recollection of the House that the division on the Coercion Bill which put her Majesty's late Ministers in a minority occurred on the 26th of June. On the 29th of June, the announcement was made to the House and the country, that Her Majesty's Ministers had resigned. On the 30th of June Mr. David Pollock, a Commissioner for the Relief of Insolvent Debtors in London, was appointed Chief Justice of Bombay. At that time Sir Henry Roper, the Chief Justice of Bombay, had not tendered his resignation to the Government. He was well aware that it was within the absolute power of the Government to supersede a Chief Justice of the Colonies; but he submitted that if it was within the power of the Government, it was contrary to the spirit of the Constitution that the Government should, for the mere sake of patronage, have superseded any one who held the office of Judge in any part of the Queen's dominions. He believed that Sir Henry Roper was in the 850 seventh year of the performance of his duties as Chief Justice of Bombay. Five years' service would give to him a retiring pension of 700l. a year; seven years' service would entitle him to a retiring pension of 1,000l. a year; and the period of service which would have entitled him to the full retiring pension of 1,000l. per year would expire on the 2nd of November next; yet her Majesty's late President of the Board of Control, with the view, as he would show to the House, of perpetrating a job, had thought proper to supersede Sir H. Roper by appointing Mr. David Pollock, when there were yet four months before Sir Henry Roper would be entitled to his full retiring pension. But this was not all. There was another and more serious view of the case; and it was this—that by the law of the land, as soon as Mr. David Pollock was appointed Chief Justice, he became legally Chief Justice of Bombay; and the power and authority of Sir Henry Roper to try causes immediately ceased. The result of this was, that every trial which should be held by Sir Henry Roper, between the time of the appointment of Mr. David Pollock, and the arrival of the news of his appointment at the East Indies, would be an illegal trial, and every criminal who should be convicted—that was, capitally convicted and hanged—would stand before the laws of the country as a murdered man. And that was one of the ways in which Her Majesty's late Ministers performed the duties of their office. At that very moment (he did not know whether the Bill was actually in the House, but if it were not, he believed that it would be laid on the Table that night) it had been necessary to introduce into the other House of Parliament a Bill, which, under the title of the "Patent Commissions" Bill, was, in point of fact, a Bill for concealing this nefarious job, and at the same time for granting an indemnity to the perpetrators of it. The object of the appointment of Mr. David Pollock, was to create a vacancy in the commissionership of bankruptcy, wherewith to reward the private secretary of my Lord Lyndhurst; and the mode of proceeding was this: Sir Henry Roper was to be superseded by the appointment of Mr. D. Pollock, who held the office of Chief Commissioner in London for the Relief of Insolvent Debtors. Mr. David Pollock was again in his turn to be succeeded in his office by Mr. Phillips, the Commissioner of the Court of Bankruptcy at Liverpool; thus to make a vacancy 851 there, to which Mr. Perry, the private secretary of the late Lord Chancellor, had been since appointed. He had nothing to say against the character of Mr. David Pollock. He did not wish to say or to insinuate that he was unfit for the discharge of the high duties to which he had been appointed. He believed that his legal attainments were great; and though he might be something out of practice as regarded that portion of the law which he would have to administer, from having been occupied for some time as an insolvent debtor commissioner, he did not mean to say that he was not fit to hold the office of Chief Justice of Bombay—though his age, being sixty-five, was rather greater than those who were sent out to the East Indies to fill the situation of Chief Justice had generally attained. Then, with respect to Mr. Phillips, he had nothing to say against his character, or against his legal attainments. He believed, that a more capable man for executing the duties of Chief Commissioner for the relief of insolvent debtors did not exist; and so far as he was concerned, it could not be imputed to him that he had taken any part in this job. The office which he had vacated entitled him to a salary of 1,800l. a year, and the office to which he had succeeded, entitled him only to a salary of 1,500l. a year. Private reasons, and feelings to which he would not advert, founded upon a domestic calamity which he had met with, had made it desirable to him personally to leave Liverpool, the place where he had met with that affliction. If it should be, that Mr. Phillips was indebted for his promotion to that office, and for the fulfilment of his wishes, by one ex-Chancellor, to the patronage and friendship of another ex-Chancellor, who, he (Lord G. Bentinck) might say, was as it were a second honorary Chancellor during the existence of the late Government—performing the legislative duties in the other House of Parliament which were abandoned by Lord Lyndhurst—taking the part, the difficult part, of defending Her Majesty's late Ministers against those attacks which were constantly made on them in that House, though not in this House—upon their honour and consistency in their late proceedings—if that was the fact, it was no disparagement to Mr. Phillips; and he (Lord George Bentinck) rejoiced that Mr. Phillips, through the interference of Lord Brougham, had obtained the appointment, if it were through his interference 852 that he had obtained the object of his wishes. He had no charge to make against Lord Brougham, if, as the reward of his fidelity and zeal in the defence of Her Majesty's late Prime Minister, this sop was given to him to soothe and gratify his feelings. But when he came to another part of the case, and looked at the appointment of Mr. Perry, he was bound to say that this was a very great job. Mr. Perry, as he believed, had had no practice for many years in the courts of law; and, as he was informed, he was accompanied to Liverpool by Mr. Commissioner Holroyd, as it were, to dry-nurse him in the new duties he had to perform. He had treated of this matter, as though it was an appointment made by the Lord Chancellor Lyndhurst. He was well aware that the appointment of Mr. D. Pollock did not rest in the gift of the Lord Chancellor, but that it rested in the gift of the President of the Board of Control. He believed that the appointment was actually notified to Mr. Pollock unsought and unasked for by him; that, in fact, it was notified to him by the late Lord Chancellor, and pressed upon him. There was a rumour out of doors, that there had been a barter of patronage in this instance, and that in exchange for the patronage of the Chief Justiceship of Bombay the patronage of the living of Nocton, which became vacant on the death of the Dean of Windsor, four months ago, was given to my Lord Ripon. And he had yet to learn whether the living of Nocton had not been disposed of in exchange for the patronage of the Chief Justiceship of Bombay. He cared not whether the patronage was in the Lord Chancellor Lyndhurst, or in the late President of the Board of Control, Lord Ripon. It was a matter altogether pertaining to the late Government, and in which the late Government only were concerned. But to whomsoever the job belonged, it was a job, and one of the most nefarious jobs that he recollected during the eighteen years that he had had a seat in Parliament. It would be for hon. Gentlemen opposite to show him the precedent of any similar job of the kind. He must say that it was one which came with peculiar ill grace from Lord Lyndhurst, who, if he recollected rightly, in the year 1841, threw out the Charitable Trusts Bill, on the ground mainly that it was not fitting that a Government which was on the eve of a dissolution should have the distribution of so much patronage. Now, as the Government 853 in the present instance was not on the eve of dissolution, but was actually defunct, when it made this appointment, he thought he was justified in saying that a more profligate avidity for patronage never was displayed by any Government. And he begged leave to say, also, that it contasted very strongly with the conduct of the same Ministry in respect to patronage of a different description. It contrasted strongly, and not very favourably, with the conduct of that Government as regarded the appointment to the Lord Lieutenancy of Norfolk. In that case there was a man who, if fidelity to his engagements and his party, if honour and consistency in politics, could have entitled him in the eyes of the late Ministry to a reward, was the person who more than any other was entitled to be appointed to the Lord Lieutenancy of Norfolk. But he had been guilty of a crime which the late Prime Minister of the Crown could never forgive. He had been guilty of the crime of consistency in politics, and fidelity to the principles and opinions which he had ever advocated. The appointment of Lord Lieutenant for Norfolk was, therefore, left open for thirty days, until the present Government came into power, that a person of politics and principles of action different from those which the right hon. Gentleman the Member for Tamworth had during the whole of his former life advocated, might have the chance of being appointed to the office. After what he had stated, he thought he was entitled to call for an investigation into the manner in which this patronage had been disposed of by the late Government. He thought he had a right to ask if the highest offices on the judicial bench were to be thus prostituted? He had a right to ask if so great an infraction was to be permitted, not of the law, but of the spirit of the Constitution, which made Judges irremovable? And he begged to ask his right hon. Friend the President of the Board of Control, if he were willing to lay on the Table all the correspondence which had taken place with respect to the appointment of Mr. David Pollock to the office of Chief Justice of Bombay? When this fresh instance was exposed of the administrative talents of the late Government, he felt confident that the country would be disposed to agree with him in saying that Her Majesty's late Ministers were not the only men in the country who were capable of managing its affairs. They would have the public believe that this were so, and that if they 854 had been faithless to their political principles, and if they had betrayed the constituencies of the Empire, at any rate no other Government could be found so practically capable of administering the affairs of the country. He recollected on the night of the division which proved fatal to the existence of the late Ministry, that he heard it said by Gentlemen connected with the agriculturist interest, that he (Lord G. Bentinck) had sounded the knell of England's existence when he turned out the late Government; for that there were no other men than the Gentlemen opposite capable of governing the country; that the right hon. Baronet the Member for Tamworth (Sir R. Peel) was the only man fit to be Prime Minister; that the late Government alone were capable of practical legislation (of their skill in which we had had so striking an example in that Corn Law which was no less than five months under consideration); and that they were the only men who could be intrusted with the appointment of magistrates in the commission of the peace. Of the care which had been bestowed by them upon these appointments the House had had a pretty lesson in the confession made last night by the noble Lord the late Chancellor of the Duchy of Lancaster, that he had had two months' notice from the Chairman of the Commissioners of Excise, that a person, whom he afterwards appointed as a magistrate, was unfit to administer justice, especially in that part of the country where he had been guilty of the enormity of defrauding the Excise, and of which crime he had been convicted. To-day he (Lord G. Bentinck) had shown that these men, who appeared to be infallible neither in their legislative or their magisterial appointments, were no more immaculate in their distribution of patronage connected with the judicial bench in India. He therefore called upon his right hon. Friend (Sir J. C. Hobhouse) to lay before the House and the country all the information that it was in his power to produce with respect to the late appointment of Mr. David Pollock to the Chief Justiceship of Bombay.
§ SIR J. C. HOBHOUSE
In answer to the appeal of my noble Friend, I think the best thing I can do is to state to him and to the House exactly the facts of the case, leaving it to the House to make its own decision on that statement. Very shortly after I came to the Board of Control, my attention was directed to the circumstances of the appointment of Mr. D. Pollock to the Chief Justiceship of Bombay, 855 in the room of Sir H. Roper; and when I looked through the correspondence connected with that appointment, I found that certain irregularities had taken place, which made it desirable, in my opinion, to call in the assistance of the law officers of the Crown. I had now better state exactly what was the correspondence which took place between Sir H. Roper and the Earl of Ripon on this subject. Sir H. Roper, on the 14th of February, 1846, wrote a letter in which he stated it was his wish to retire from the Chief Justiceship of Bombay, but that he did not wish to do so till the 2nd of November next, by which time he would be entitled to his seven years' pension, amounting to 1,000l a year, as has been correctly stated by the noble Lord. If he retired after five years' service only, as the noble Lord also correctly stated, he would be entitled only to 700l. a year. This letter arrived in England and was received by the Earl of Ripon on the 27th of March following; and on the 4th of May the Earl of Ripon took Her Majesty's pleasure on the subject, and returned an answer to Sir H. Roper, that his resignation had been accepted from the 2nd of November, and that he would thus, have his retiring pension of 1,000l. for seven years. On the 14th of June, the Earl of Ripon accordingly wrote to the Secretary of State for the Colonies, Mr. Secretary Gladstone, requesting that a patent might be made out in the usual form, granting to Mr. D. Pollock the appointment of Chief Justice of Bombay from the 2nd of November, 1846, and at the same time he communicated with the Chairman and Deputy-chairman of the East India Company, notifying that fact to them. It appears that on receiving this communication, the Secretary of State for the Colonies, consulting the proper officers on the subject, found it necessary to return an answer to the Earl of Ripon, that the appointment could not be made in that form, for it was illegal to appoint a judge in prospect; and the letter being so returned to the Board of Control, the Earl of Ripon wrote another letter to Mr. Secretary Gladstone, desiring him to have letters patent made out, appointing Mr. Pollock Chief Justice of Bombay. On the 1st of July letters patent, which I hold in my hand, were made out for Mr. Pollock, appointing him to that office, and containing a clause annulling the appointment of Sir H. Roper. The moment I saw this I thought it necessary to consult my hon. Friend near me (the Attorney General), it 856 appearing to me, though unlearned in the law, that from the moment of Mr. Pollock's appointment in July, Sir H. Roper was no more Chief Justice of Bombay than I was, and that, in fact, all the trials which might take place from that time before him were coram non judice. In this emergency I thought it necessary to lay the case before Her Majesty's Attorney General, and take his advice as to what was best to be done; for it was quite clear, as the noble Lord fairly stated, that very unpleasant consequences might arise from this state of things; and that if any trials of a civil or criminal character were to take place in Bombay, serious consequences might be the result, unless something were done to remedy the irregularity. The consequence of this application was, that my hon. and learned Friend, after a good deal of consultation and time spent in examining the case, conveyed to me a written opinion, in which he stated it as his decided conviction that there was no remedy except by Act of Parliament; and that this Act should legalize whatever might be done in the interval between the appointment of Mr. Pollock and his arrival and taking his seat on the bench at Bombay. It was quite clear that this was the only course that could be pursued; and accordingly an Act was drawn up and was introduced by the present Lord Chancellor in the other House of Parliament, having the effect alluded to. I should state at the same time that there is already another Act in force, not referring to the judicial appointments, but to the colonial Governments, which had very much the same effect as the present measure, on the principle, and in some cases in the very words, of which it had been framed. I should also state that if this be an irregularity—as no doubt it is—that it is one which has not now occurred for the first time. The same accident, if accident it may be called, occurred in several instances, as I find, on looking over the records of my office, that Sir F. W. Macnaghten did not retire till the 8th of March, 1825, but that the patent of his successor, Sir C. Grey, was dated the 29th of November, 1824; Sir C. E. Grey did not retire till the 3rd of July, 1832, but the patent of his successor, Sir W. Russell, was dated the 28th of January, 1832; Sir J. Frank did not retire till the 15th of March, 1834, but the patent of his successor, Sir J. P. Grant, was dated the 24th of June, 1833; Sir Ralph Palmer did not retire till the 857 1st of January, 1836, but the patent of his successor, Sir R. Comyn, was dated the 11th of July, 1835. I state those cases to show that this irregularity had occurred before; and I certainly do not understand how they could have happened so often under the eye of the law officers of the Crown. Having stated so much, I do not know if it is necessary for me to say anything more on this subject. The Earl of Ripon took Sir H. Roper's letter as a positive resignation; though I should, perhaps, have called it a conditional one. He granted him what he required, and secured to him his main object—the retiring pension for seven years. It is not for me to make any comments on those facts. I should be most happy to give any further explanation if I had any more to give; and when the subject comes before us in another form, we shall be able to discuss it at large; but at present I cannot give my noble Friend any more information than I have given.
§ SIR J. W. HOGG
said, with the matters to which the noble Lord had directed their attention, the East India Company had nothing whatever to do directly or indirectly. With the recall or the appointment of a Judge, they had no more to do than the noble Lord himself. But he thought it right to say that having occasion to communicate with Lord Ripon, as Chairman of the Board of Directors, on some matters of business, Lord Ripon, so far as his memory served him, told him in the month of May that he had received the resignation of the Chief Justice of Bombay, who wished not to resign immediately, but from November, when he would be entitled to a pension. Now, that was not unusual; but, on the contrary, the constant and universal practice. Before the introduction of steam, it was the invariable rule that all Judges, puisne and chief, gave a year's notice of their intention to resign, in order that another new Judge might arrive before the departure of the one retiring: this was a universal occurrence, and not merely accidental. [Sir J. HOBHOUSE: That is a mistake.] So far as his experience went, he never knew a case otherwise. He never knew the case of a single Judge who did not send notice to the Government of his intention to resign. But he begged to call the attention of the President of the Board of Control to the course adopted on the present occasion. He knew nothing of the matter personally, and was not aware of the exact particulars till they were stated 858 to the House, It appeared, however, that Lord Ripon wrote to the Secretary of the Colonies, desiring that a patent should be made out, constituting Mr. Pollock Chief Justice from the 2nd of November. Now, he wanted to know from the President of the Board of Control why that was not done? [Sir J. HOBHOUSE: I stated why.] He understood his right hon. Friend perfectly to say that Lord Ripon was informed the thing could not be done; but still the question came to be, why could it not be done? Now, he begged to say he had in his possession a legal opinion signed by very competent legal men, that it could be done, so that this was a subject on which doctors did not agree. The late Sir W. Follett, and the law advisers of the East India Company, said that this could be done. He did not say that they were right, nor would he say that the present law officers of the Crown were wrong; but if the late Sir W. Follett and the other law advisers of the East India Company were wrong, the error had existed for at least a century. The point had been specially brought under the attention of Sir W. Follett and Sir F. Pollock; and when their attention was called to it, those learned gentlemen stated that it was competent to Her Majesty to appoint judicial officers in this manner; and that the persons so appointed should enter on the execution of their office on a day certain. He had a great respect for the learned Attorney General, and he thought it very likely that his law might be right; all he wished to point out was that the contrary practice had existed. The opinion to which he had adverted was given on the retirement of Sir E. Ryan. That Judge had written home to state his intention to retire; some doubt arose at that time; that led to the opinion of the learned gentlemen whose names he had mentioned being asked for. It was asked for in these terms:—Whether it is lawful for Her Majesty now to appoint a person, duly qualified according to the Charter, to be Chief Justice of the Supreme Court of Judicature of Fort William in Bengal?The answer was—
§ "We are of opinion that it is lawful for Her Majesty now to appoint a person duly qualified according to the Charter to be Chief Justice of the Supreme Court of Judicature of Fort William in Bengal; but as the effect of such appointment would be to supersede the present Chief Justice, we think it desirable that the appointment should be made to take effect at some distant day, so as coincide with the period of his intended departure. (Signed) "FREDERICK POLLOCK.
§ "W. W. FOLLETT.
§ "W. R. SPANKIE."859
§ In this case the moment these letters patent were signed, Sir H. Roper ceased to be Chief Justice of Bombay; but in the case to which he had referred, the legal opinion stated that it was competent to Her Majesty to appoint a person duly qualified to be Chief Justice, to enter upon his office at a distant day, and that day should correspond with the day of his departure. The course there recommended, therefore, was the identical course that the Earl of Ripon took in the letter which he wrote on the first occasion to the Secretary for the Colonics, and that was the usual course, and the one generally taken. It was the course taken in the cases of Sir F. Palmer and Sir E. Ryan; and if the right hon. Gentleman looked to the letters patent he would find that they did not recall the appointment of the Judge in office when they were made out, but that they had a clause stating that the letters patent should take effect from the time when they were presented in India. This had been the practice for a century with regard to all appointments to offices in that country. Even in the appointments of the Governors General there was the same error, if this was an error; for if Her Majesty could not appoint a Chief Justice of India in this form, it could not be competent to the Imperial authority, the East India Company, to appoint the Governor General according to the same method. But the fact was, that ever since a Governor General had first been appointed, the appointment ran in the same form, and stated that it was to take effect when the new Governor General produced it in India. In the appointment of Lord Ellenborough, the commission ran, he believed, not that the appointment should take effect when he arrived, but when he joined the majority of his Council; so that the practice had been with respect to all officers sent front this country to India, that the retiring officer should remain in office until the new officer should produce his letters patent. The whole question arose from the form of the letters patent. If the letter which the Earl of Ripon wrote to the Colonial Office in May had been complied with, there would have been no difficulty at all in the matter. He must declare his ignorance of the parties; he hardly knew the names of the persons appointed till he had heard them from the noble Lord; and he had only risen because he thought the House ought to see what was the course which had always been pursued, and which the public convenience required 860 should be pursued if it was legal; and if it was illegal they ought to have an Act of Parliament to amend it.
The ATTORNEY GENERAL
must be allowed to correct the hon. Baronet as to what he said was the practice that had existed in former times. As the hon. Baronet had referred to the opinion of the former Attorney General, perhaps he might be allowed to say that, after mature consideration, and after communication with several legal friends in whom he had great confidence, he had come to the opinion, for which he was responsible, and which the right hon. Baronet (Sir J. C. Hobhouse) had referred to. But he had not given that opinion to the right hon. Baronet (Sir J. C. Hobhouse) until he had been fortified in his own opinion by the opinion of the present Lord Chief Baron; and that opinion had met with the entire concurrence of the present Lord Chancellor, with the entire concurrence of the late Lord Chancellor, and, he believed, with the entire concurrence of the late Attorney General. Sir W. Follett and Sir Frederick Pollock were undoubtedly quite right in saying that the Queen might now appoint, because the mere exercise of the pleasure of the Crown on making the new appointment vacated the former one; by that very act, and at that instant, was revoked the authority of the letters patent by which Sir E. Ryan was appointed. With respect to the practice the hon. Baronet (Sir J. W. Hogg) asked, why the Colonial Office did not draw up the patent according to the old practice? He (the Attorney General) had no right to know what was the reason; but he thought the Colonial Office was justified in point of law. From the earliest times it had been held—and if the hon. Baronet would look into Comyn's Digest, art. "Justices," he would find there in the very first head the law laid down—that a judicial office could not be granted in reversion. [Sir J. W. HOGG: There is no reversion here.] None of the letters patent, according to the old form, granted the office in reversion; all had a clause revoking the previous appointment; therefore this clause was not introduced into these letters patent for the first time. This patent followed former patents in that respect. It would indeed be a grave charge if any one said that Lord Ripon, or any one else, out of the ordinary course, had revoked the letters patent; but that was not the case; he had appointed Mr. D. Pollock in place of Sir H. Roper; and 861 the letters patent contained a clause revoking Sir H. Roper's appointment. That was the unform practice of all the patents. The object of the Bill which had been introduced into the other House was to cure altogether the inconvenience which had been felt, and making in future all letters patent to take effect when the arrival of the new Judge took place, so as to prevent the seat being vacant.
§ MR. S. WORTLEY
said, the noble Lord's inquiry had given rise to a very important matter. It amounted to this, that no appointment of a judicial officer in India had taken place without there being a long interval in which the predecessor acted without any authority; and in Bombay, where there were but two Judges of the Supreme Court, there must be the greatest inconvenience in consequence. He was glad, therefore, that the error was about to be remedied. He perfectly agreed with the learned Attorney General; indeed, no lawyer could doubt it, that a judicial office could not be granted in reversion; but he was not so sure that a judicial office might not be appointed too, the appointment being made to take effect at a future day; and he was not clear that such an appointment, to take effect at a future day, might not be made at a time when the office was full. That, he thought, would not be an appointment in reversion, because a reversion was dependent on the tenure or seizing of an occupant; and it would not be a grant in reversion, because it would take effect at a specific certain day when the office would be vacant. It was but justice to Mr. D. Pollock and Mr. Phillips to say, that better appointments for the benefit of the public could not have been made. He must also add, that he knew that for some time previous to his appointment Mr. D. Pollock had been a candidate for judicial office in India; and, therefore, it was not correct to say, as the noble Lord had done, that he was appointed without solicitation on his part. Then, again, the statement that there was a pre-arrangement that Mr. Phillips should leave Liverpool in order to make a vacancy for Mr. Perry, was not correct; and he was sorry to see that in this, as in so many other cases, the noble Lord seemed to think that public officers must always act from base and unworthy motives. The noble Lord seemed to think that those who had been brought up in admiration of the principles of Mr. Canning—not having, with the noble Lord, taken the earliest opportunity of joining themselves 862 with radical reformers; not having, like the noble Lord, abandoned the liberal commercial policy of Mr. Canning—must have this object before them. The noble Lord could not conceive that they adopted those measures which had lately been adopted with any other object than that of patronage, and, as the noble Lord called it, payment. The House had not forgotten how the noble Lord had charged the late Government with making false returns, the error merely being the mistake of a clerk. The House had not forgotten how the noble Lord had incautiously charged a noble Earl in another place—a man of the highest integrity and honour—with making a statement—for it amounted to that—while he had a document in his pocket at the time that proved the contrary. He was exceedingly sorry that the noble Lord again should have made one of these attacks; for it showed that it was impossible for the noble Lord to bring a statement of this sort before the House without imputing at the same time improper motives for it.
§ MR. HUME
did not think that the crimination which the hon. and learned Gentleman had just made against the noble Lord had anything to do with the statement before the House. If this was not a job, it was very like one. It seemed to him a very singular proceeding, and, in his opinion, a very important matter for Sir H. Roper. But there was another point. He held in his hand a document which contained a downright lie. Yes, in this document William Ewart Gladstone certifies to a downright lie. ["Hear!"] Well, an error, a mistake, if you like; but it is here certified, that Sir H. Roper having resigned his situation, and so on. Now, that is a lie; or, if not a downright lie, it is a mistake, I suppose; for Sir H. Roper had not resigned when this document was written. [The Earl of LINCOLN: It is the ordinary official form.] Why should official forms lie in this manner? If a public document to be laid before Her Majesty might contain statements that were not true respecting individuals, who in this country could be safe? Sir H. Roper, whom he had not the pleasure of being acquainted with, gave timely notice to the Government, that he wished to resign his seat. Last February, he said, he proposed to resign from the 2nd of November following; therefore the statement in this document, which was dated in July, was not correct, because it represented 863 him as having then resigned. It must be remembered, that if Sir H. Roper's resignation were to be made to take effect before the 2nd of November, he would only be entitled to the retiring pension of 700l. a year; whereas if he were to resign on the 2nd of November he would be entitled to 1000l. a year: so that the Bill, as he understood it, would deprive Sir H. Roper of 300l. a year. After a Government which had resigned had acted in the way the noble Lord had stated—and he knew nothing of the facts beyond what the noble Lord had stated—he thought that the case called for particular animadversion. But, what he wished particularly to remark upon was, the gross injustice on the part of public men. Here was the late President of the Board of Control—a very good man, he admitted—and yet he, in his official capacity, had superseded a Judge who had been six and a half years on the bench in India, and who had, consequently, some experience of the practice of the law there, and sent out an individual who had no knowledge of the practice of the law in that country. This certainly afforded little encouragement to men in India to do their duty. Sir Erskine Perry, who was the junior Judge, had done his duty to the satisfaction of all parties, and yet he had been passed over in this appointment. Sir Erskine Perry had therefore been ill used; and he protested, on the part of that gentleman, against the gross act of injustice which had been committed towards him; for he no doubt looked forward—and ought to have looked forward—to succeed Sir Henry Roper; and he thought the House was obliged then to the noble Lord for bringing the matter under the notice of the House. He differed as much from the noble Lord in general as the hon. Gentleman who had spoken on the other side (Mr. S. Wortley); but that did not warrant him in blaming the noble Lord for bringing forward facts which were important with respect to the administration of justice. He thought that the House was much obliged to the noble Lord; and he considered the recriminations on the part of the hon. Gentleman neither well-timed nor just.
defended the appointment of Mr. Pollock, and remarked that no particular blame was, in his opinion, attachable to the Government for passing over Sir E. Perry; for if the hon. Member for Montrose would look to Westminster Hall, he would see that no puisne Judge 864 was ever elevated to superior authority in that court.
§ MR. GOULBURN
did not rise to complain of the noble Lord for bringing forward this subject. So far as any error might have taken place respecting the appointment of Judges, the House must be very much obliged to any hon. Member for pointing out defects of so serious a nature in the practice which had uniformly prevailed, and for affording the opportunity of correcting them. He did not pretend to any legal knowledge on the subject; but instead of attributing the fault of this appointment—made previous to the resignation of the present Judge, and thereby vacating the existing appointment, and perhaps rendering invalid judicial acts—to the Government of the day, he (Mr. Goulburn) would lay it rather at the door of Parliament, which gave to the Crown the power of superseding by warrant in this country a Chief Justice administering the law in India. For it must be obvious that if the law as now laid down was correct, and the Crown exercised the power of supersession, it did incur the enormous difficulty of vitiating all the acts of the person exercising judicial authority in India. That Government had taken the right course in this matter, no man could doubt; if an error existed, it was incumbent on them to correct it; and even if a doubt existed, to refer to the highest legal authorities, in order that it might be removed. What he complained of in the noble Lord was, that without a notice—for the intimation given by the noble Lord, from which no man could presume that a discussion would arise, was equivalent to no notice at all—the noble Lord should take upon himself to apply to a man as honourable as himself such phrases as "nefarious corruption" and "flagitious profligacy." The noble Lord had never been in office, and therefore could not jndge of the motives which influenced official men; but if he were to judge of the noble Lord's feelings from the terms he applied to those on whom such responsibilities devolved, he for one did not envy feelings which led the noble Lord, without adequate information as to facts, or any knowledge but common rumour, to excite unjust suspicions against a man as upright and honourable as any who lived. That the noble Lord should suppose his noble Friend the late President of the Board of Control (the Earl of Ripon), to be so corrupt that for an antecedent period he should have been negotiating 865 with the Lord Chancellor respecting an appointment to the living of Nocton, and should have made a corrupt arrangement regarding it, was little to the noble Lord's credit. His noble Friend had, by the letter which he wrote, called attention to a legal error which had long prevailed, not alone in this case, but in all others. It appeared most extraordinary that in the long course of years during which this practice had prevailed, no case had occurred in which an arrest of judgment was moved in India, and no attempt had been made to vitiate the proceedings of a Judge sitting without authority. However the law might stand, if any doubt existed, it was most important that an Act of Parliament should be passed to remove it. With respect to the present case, he had no opportunity of making any inquiries, or of consulting those who might have been able to afford information, his noble Friend the late President of the Board of Control, as well as the late Secretary to that Board, being out of town. He regretted that the hon. Member for Montrose should have employed such expressions in reference to the official document to which Mr. Gladstone had been a party, for though that Gentleman himself would probably not regard them, pain would be caused to those of his friends who might learn what the hon. Member had said.
§ MR. HUME
wished to explain, by saying that in designating the error an official lie, perhaps it was a wrong word—he did not attribute anything to Mr. Gladstone. But had the department set forth the facts truly, they would not have effected their object, and therefore they set forth the facts untruly.
§ MR. HENLEY
was of opinion, that the present time was a most opportune period to enter generally on the subject of patronage, and particularly as regarded judicial appointments, there being a Bill before the House which, if it became law, would confer great patronage in certain quarters. In reference to what had been observed respecting Mr. D. Pollock, he (Mr. Henley) could not gather from anything advanced by the noble Lord the Member for Lynn, that he said anything about the fitness or the unfitness for office of that gentleman; all he said upon the subject was, that Mr. David Pollock was about sixty-five years of age. The noble Lord did not say one word in disparagement of him, so that all that had been advanced about the fitness or the unfitness of Mr. David Pollock had 866 nothing to say to the question before the House. The noble Lord the Member for Lynn was equally silent on the subject of "reversion;" but that was just introduced into the debate as a sort of set-off against more important matters: it was merely intended as a sort of diversion from the main question. Those matters had no more to do with the question propounded by the noble Lord, than they had to do with the north pole. It was a remarkable circumstance that the President of the Board of Control fully agreed in his statement with all the noble Lord advanced—on every point there was a complete accordance. As to the facts there could be no doubt: they stood completely undisputed. And what were those facts? A letter was received by the late President of the Board of Control, from Sir H. Roper, stating that he wished to resign his office on the 2nd of next November, which date would complete his seven years, and which would entitle him to a large pension. The noble Lord the Member for Lynn made no complaint whatever about Sir H. Roper being allowed prospectively to resign. In the ordinary course of business, a patent to the judgeship was to be made out; but on that point the noble Lord made no complaint at all, although when the authorities in the Colonial Office were called on to do so, the President of the Board of Control stated that he could not do what was required, and which it was distinctly unlawful to do. What it was intended by an Act of Parliament to remedy now, should have been done then, and it should have been done at once. But after the 1st of July, when the late Government was really put out of office by a vote of that House, they came down in breathless haste to get the matter settled, to fix Mr. D. Pollock in office, but without adopting one single step to cure existing illegalities. In all the preceding transactions of that kind, it was supposed that every transaction was legally conducted; but it now appeared that such was not the case. The House was told, but rather oddly, that Mr. D. Pollock made application for the appointment in India when he was not younger. How could that be done formerly by Mr. D. Pollock? How could he do a thing at a former period, and still not be older? He (Mr. Henley) could not comprehend such language, as the smallest portion of time must assuredly make a difference in a man's age. But, perhaps, that was merely an official mode of speaking—the official mode was 867 one thing, the matter of fact mode was quite a different affair—for when it was stated that an official gentleman had resigned his office, yet the answer on the other side was, that he did not resign, that being merely an official way of doing business. The hon. Member for Bute said, he was taken by surprise. He (Mr. Henley) could not conceive how any hon. Gentleman could say he was taken by surprise, after the notice that had been given by the noble Lord. What was that notice? Lord G. Bentinck moved—To ask the President of the Board of Control for an explanation of the circumstances under which the late appointment of Mr. David Pollock to the office of Chief Justice of Bombay was made, and for the correspondence relating there to"—Which appeared in all the public papers. Did any one think that, when an hon. Member gave notice of his intention to ask the Government for certain Papers, but that such hon. Member would introduce in a speech the reasons which influenced him to ask for what was the object of his Motion? It was the usual practice. He hoped that the House would not be led away from their decision by the legal hare which had been started by the hon. Member the Chairman of the Board of Directors, or the personal matter introduced by the hon. Member for Bute.
The EARL OF LINCOLN
agreed that it was most desirable the attention of the House should not be diverted from the subject before them. As regarded the allegation of the House not having been taken by surprise, he could answer for himself and many hon. Friends near him, that they had most certainly been taken by surprise. He contended that the matter had been brought before the House in a most unfair manner, when there was not a single Member of the late Government in town who was cognizant of the facts, and when there had not even been the opportunity for those who were acquainted with the circumstances to instruct their friends in town. They had no right whatever to expect that the matter would have been brought forward. It was certainly the practice when Papers were moved for, that a speech should be made; but the noble Lord had not given notice of his intention to move for Papers, and had put his notice in a form which could not possibly lead any one to suppose that he intended to bring forward the gravest charges against individuals. The noble Lord's notice was, 868 that he woould mve for Papers, but that he would "ask the President of the Board of Control for an explanation of the circumstances under which the appointment of Mr. David Pollock to the office of Chief Justice of Bombay was made, and for the correspondence relating thereto." All he (the Earl of Lincoln) could say was this—and he pledged his honour as a Gentleman to the fact—that he expected the noble Lord the Member for Lynn would have done simply that which he (the Earl of Lincoln) thought ought to have been done under the circumstances, which was, to ask the President of the Board of Control to make that plain statement which he had just made; and then the noble Lord, having possessed himself of the facts and documents, would have afterwards made up his mind as to the form in which he would bring the case before the House. Due notice, at least, should have been given, when the late Lord Chancellor and the President of the Board of Control were to be attacked. But what were the facts? On the 4th of May, his noble Friend, then President of the Board of Control, wrote to Mr. Gladstone. [Sir J. C. HOBHOUSF: On the 4th of May the Queen's pleasure was taken as to the appointment. It was not until the 14th of June that the letter was written.] The dates were not very material to the facts to be established. The point he wished to impress upon the House was, that so far from the Earl of Ripon having applied to Mr. Gladstone to have the letters patent made out in the usual way, his application was that they should be made out, granting the reversion of this legal appointment to Mr. Pollock. Mr. Gladstone, acting no doubt under the advice of the legal authority of that department, wrote to Lord Ripon that that could not be done; but he did not call the attention of Lord Ripon to the fact, that what had generally been done was irregular. The impression therefore on Lord Ripon's mind, the course desired to be adopted being pronounced irregular, was, that the old course was the proper one, and that had no doubt been the course taken by every antecedent Government. He (the Earl of Lincoln) distinctly denied, so far as there was any information before him, that it was brought before the notice of the Earl of Ripon, that there had been an irregularity and illegality, and that that noble Lord had persisted in his course after having been informed of the error. What Lord Ripon had been informed was, that the patent could not be 869 made out granting the reversion to Mr. Pollock.
§ MR. DISRAELI
said, that Gentlemen on the other side had not been taken more by surprise in this matter than many others. It was only by an accident that he had been present on the occasion. He was at a loss to understand, from the statement of the noble Lord, what were the grounds on which the late Ministers complained of being taken by surprise on this occasion, as they always did when any act of their Administration was challenged. He understood that it was the form of the notice given by the noble Lord the Member for Lynn, as it appeared on the Paper, that was the foundation for their allegation of being taken by surprise. His noble Friend the Member for Lynn had given notice that he was going, not to make a Motion, but to ask a question. Now, it was the ordinary practice in that House, when a Member was in opposition to Government, that he should, without intending to divide the House, give notice of a Motion for Papers, in order to raise a discussion, and give the opportunity for the expression of opinions impugning the policy of the Government. That was not the feeling of his noble Friend the Member for Lynn. Whatever other feelings might influence him, no one could suppose him animated by hostility to the existing Government. Therefore, he had not given his notice in the form which was usual when a Member was in hostility to the Ministry. His noble Friend had given notice of his intention to ask a question, and he was to ask for the production of correspondence; but under what circumstances? It was to be moved upon the Order of the Day, so as to give every hon. Member an opportunity of expressing his opinions. [The Earl of LINCOLN: It was not upon the Order of the Day.] He begged the noble Lord's pardon. On the Order of the Day there was a series of notices, and one of them was by Lord G. Bentinck, in these terms. The hon. Member here read the notice. It was upon the Order of the Day that they were now speaking; and he asked any hon. Member, to whatever party he might belong, whether this could be supposed to be an ordinary question, to receive a mere official answer, and one upon which every body was to be stopped from expressing his sentiments? It would have been in every sense most unfair to have asked a question of this kind, and not have given the opportunity for 870 discussion. What were the facts? Here was an appointment made by a Government in extremis. It had been said that similar appointments had been made; but had they been made under similar circumstances? He saw in the statement of the case an apparently very improper distribution of a bit of patronage, made, as he believed, by the noble Lord presiding over the patronage of India. But the name of a noble and learned Lord had been mentioned. No one intimately acquainted with that noble and learned Lord could suppose him influenced by selfish purposes. On the contrary, he (Mr. Disraeli) believed there never had been a public man animated by more generous impulses. He remembered that on one occasion the noble and learned Lord, expressing his opinions on the subject of patronage, said, that during a long, and it might be added an illustrious career, he had been influenced by three considerations—the first his duty to the public, the second his duty to his party, and the third his duty to his friends. He (Mr. Disraeli) believed those were the principles which animated Lord Lyndhurst, and was sure if this question were investigated, the conduct of the noble and learned would come out perfectly immaculate. But whatever might be his private convictions as to the character and conduct of Lord Lyndhurst, he could only see in this case a charge brought against a responsible Minister, holding the high office of President of the Board of Control, and accountable for all that had taken place. It was no explanation to come forward and refer to dates and quarter-days. Mr. Gladstone had made a certain representation. How had the President of the Board of Control acted? With the warning before him, he persisted in the same course; and in order to justify his conduct makes a certain recital in the patent. All the facts showed that he had acted not as other Ministers might have done, erroneously perhaps, but still in ignorance, but with a full knowledge of the circumstances, and completed the transaction at a time when the country had only the phantom of an Administration. The right hon. Member for Bute had chosen to make an attack upon the noble Member for Lynn, which, even if it were just, was wholly irrelevant, and had enlarged upon what he termed the gross attacks of the noble Lord. The extreme sensitiveness of the Members of the late Government had been remarked by many. Whether that sensitiveness arose from their 871 present position or from their previous conduct, he (Mr. Disraeli) could not undertake, nor was it necessary, to decide. It was well known that persons under peculiar circumstances were tremblingly alive to what they supposed might be an imputation on their conduct. It was said that in persons who had lost their characters, especially when of the female sex, there was to be observed a great nervous irritability. He did not say that there was any analogy, or that any inference was to be drawn from this in regard to the late Ministers; but it was certain that when any allusion was made to them, they not only vindicated their own characters, but attacked those of others. The right hon. Member for Bute had, with an indiscretion not to have been expected from one so practised and so skilful a master of his weapons, referred to what all wished to forget and consign to oblivion—to that important Government return which, if it had not been intentionally falsified, was acknowledged on all hands to have been not correct at least; and the right hon. Gentleman referred to the conduct of the noble Member for Lynn on the occasion of what the right hon. Gentleman was pleased to call a clerical error. It was very well for the right hon. Gentleman to talk about clerical errors in Government returns; but he bogged to remind the right hon. Gentleman that that "clerical error" remained undisturbed until his noble Friend had called public attention to it—that there were leading articles in the newspapers upon the subject—that the return in question formed one of the grounds upon which the House was asked to give their adhesion to one of the most important social and commercial revolutions ever attempted; and whether the error was a clerical error or not, the public were much indebted to his noble Friend for having been the means of giving publicity to it. With respect to the other part of the attack made upon his noble Friend by the right hon. Gentleman, in reference to the concealed despatch, his noble Friend had not accused the Government of concealing but of being actually ignorant of information bearing upon a subject they had brought before the House; and his noble Friend justly thought that proof of ignorance was a weighty imputation upon a Government then recommending a particular measure to Parliament grounded on the assumed fact that the sympathies and opinions of a certain population were in favour of it, 872 while information was then in London proving that that population did not so sympathize with it. But the late Government were never easy unless they supposed there was some imputation on their personal honour. Then the right hon. Gentleman, not satisfied with these attacks upon the noble Lord relating to particular occurrences, run a-muck at him and made another onslaught, on the ground of political inconsistency, and, taunting the noble Lord with professing to represent the opinions of Mr. Canning, accused him of being a radical reformer in 1831. He did not know what the right hon. Gentleman meant when he said the noble Lord had been a radical reformer. It might, perhaps, be difficult for any one to define exactly with a radical reformer was. His noble Friend had voted for the Reform Bill. He voted for that scheme of reform which the right hon. Member for Tamworth, of whom the right hon. Gentleman opposite was one of the few supporters, had declared he would stand by. If, then, voting for the Reform Bill was to be a radical reformer, then the right hon. Member for Tamworth and his few followers were radical reformers. He did not know whether the noble Lord the First Minister of the Crown and his friends were willing to accept the title of radical reformers; but they also voted for the same measure of reform as his noble Friend. He was not about to offer any remarks—it would be presumptuous and unnecessary to do so—upon the measure of Parliamentary reform; but this he must say, that the right hon. Gentleman, who was so fierce in his attacks, and so free with his imputations, should remember that the sole and only cause of that celebrated political project becoming the law of the country, was that a nobleman, distinguished for his talents and powerful from his influence, but celebrated for opinions antagonistic to reform, wavered in those opinions, and placed himself at the head of a political party called the waverers, and caused that Bill to become the law of the land. It ill became the right hon. Member for Bute, therefore, on this as on other occasions, to impute radical opinions to any one who supported the Reform Bill, when he recollected by what personal influence and agency that Bill was carried. It seemed to him (Mr. Disraeli) that no answer had been given to his noble Friend the Member for Lynn. He believed that the conduct of the noble and learned Lord to whom he had already 873 alluded would come out pure from the ordeal of any investigation into the matter; but it did not therefore follow that there were not other persons equally noble—he would not say equally learned—enjoying place and power almost as great, who had taken, perhaps in one instance the most obvious, and in others the more secret, part in this transaction, and who had not committed themselves to a course of conduct which required Parliamentary investigation, and which would, as he believed, ultimately receive public reprobation.
§ Order of the Day read, and Bill passed through Committee.