PATENT COMMISSION BILL—THE CHIEF JUSTICESHIP OF BOMBAY. (Hansard, 21 August 1846)

§ LORD G. BENTINCK
said: Mr. Speaker, I do not rise to cast any impediment in the way of carrying this Bill, for the purpose of covering the transactions which have of late taken place with respect to the appointment of the Chief Justice of Bombay; but after the observations that have been made upon my conduct, with reference to this transaction, elsewhere, I am sure the House will grant me this indulgence—I am sure the House will expect me to endeavour to justify my own course and conduct. I will not stop to excuse myself for having hastily, on Wednesday last, under an erroneous impression, expressed my apology to this House and two noble Lords for the charge which I made against them. Sir, I am told that by that retractation I have shown that I am a man of that levity that I can retract without investigation, as easily as I can make a charge without investigation. Now, Sir, if it were true that I had made little or no investigation before I made the qualified retractation I did the other morning, I should take little discredit to myself that upon the slightest suspicion that I had made an unjust and unfounded charge I had hastened to this House to retract it. But it will be in the recollection of the House that the retractation which I made rested upon the authority of the Clergy List. Now, Sir, if I am to be told that I displayed a want of investigation and great levity by making that retractation on the authority of the Clergy List, I take leave to say that the nobleman who has made this charge of levity against me is the last who ought to have made it. The Clergy List is, as we all know, nothing 937 more than a collation from and a copy of the Ecclesiastical Report laid before Parliament. That Ecclesiastical Report was made by a Royal Commission issued in the year 1835 by the Government of which Sir R. Peel was the head in this House, and Lord Lyndhurst, the Lord Chancellor, in the other. That Report, which stated that this living of Nocton was not in the gift of the Lord Chancellor of England, but in the gift of the Hon. George Hobart, was signed, among other great names, by the Archbishop of Canterbury, the Archbishop of York, the Bishop of London, and the Bishop of Lincoln, in whose diocese this place happens to be, by the Marquess of Lansdowne, Mr. Goulburn, and many others. I think, therefore, Sir, that it cannot fairly be said that it was not on light grounds that I became alarmed on this point, and the conviction seizing me that I might be in error, I hastened to this House to withdraw the charge; but for the substance of the charge, I say now again, when it turns out that my correspondent was correct in his information, and the Report of the Ecclesiastical Commission wrong, as I said before, that it is a subject of great suspicion. Sir, I do not pretend to say that, in a matter of this kind, which takes place between two Cabinet Ministers, Colleagues in office, it is likely that I should be able to produce letters, or documentary evidence, absolutely to prove my case; but when I remind the House of the circumstances which took place on these occasions, I think, Sir, that the House and the country will consider that, notwithstanding the explanation which has been offered elsewhere, the matter is still one of grave suspicion, and that there has been, to say no more, at least a friendly exchange of patronage between the two Cabinet Ministers. Sir, it will be in the recollection of the House that the President of the Board of Control received a letter from Sir H. Roper, not a letter of resignation, but a conditional offer to resign on, but not before, the 2nd of November next. Sir, that letter was written on the 14th of February last, and arrived in England at the Board of Control on the 27th of March. By the admissions made elsewhere, we learn that the appointment was offered, in the first instance, to a gentleman of eminence at the bar, and that this offer was made by Lord Ripon without any previous communication with Lord Chancellor Lyndhurst. The offer, however, was declined by the gentleman 938 to whom it was made. This must have occurred between the 27th of March and the month of May. Dean Hobart died suddenly on the 8th of May; and I could, if I had a Committee of Inquiry, show that up to this time the answer to all applications made to the Lord Chancellor, or at least to many of them, was, that the office of the Chief Justice of Bombay was not in his gift, but in the gift of the President of the Board of Control. Well, Sir, as I said, on the 8th of May the Dean of Windsor, the incumbent of Nocton, died suddenly. My Lord Brownlow, as is proved by the correspondence, and in the account of this matter given elsewhere, which has since been published in the newspapers, applied for the presentation to that living. The living of Nocton is worth 800l. a year, though its cure of souls amounts but to 553. My Lord Brownlow's candidate, Mr. Bagley, was the favourite; but my Lord Ripon and Lady Ripon alike expressed the most intense desire to have this patronage disposed of in the way they pointed out to the Lord Chancellor in favour of a friend of theirs. My Lord Brownlow was disappointed. Lord Ripon's candidate was presented to the living. What happens afterwards? Why then, we are told, Lord Chancellor Lyndhurst sent down the names of some six or seven gentlemen, for his approbation, to the President of the Board of Control, as being persons suited for this high judicial office at Bombay. Well, we do not hear who these other gentlemen, besides Mr. D. Pollock, were, nor do we hear what degree of recommendation was given by Lord Chancellor Lyndhurst to each of them; but if I had a Committee of Inquiry, I think I should be in a condition to show that though Mr. D. Pollock had applied for the office of Chief Justice, not of Bombay but of Madras, some two or three years ago, yet that at his great age, two or three years making a considerable difference, he had not made any application on this occasion to be appointed Chief Justice of Bombay. More than this, Sir, I believe that this office was not only unsolicited by Mr. D. Pollock, but that Lord Chancellor Lyndhurst himself, through the interference of the Lord Chief Baron, was the person who almost forced the acceptance of this office on Mr. D. Pollock. Well, then, if I show you that Lord Chancellor Lyndhurst neither volunteered his advice, nor was asked for it, previously to the living of Nocton becoming 939 vacant, but that after the 8th of May, when the Dean of Windsor had died, that his advice was sought, and that, then, after Lord Ripon's candidate had been preferred to the living of Nocton, Mr. David Pollock, by whose appointment a place could alone be made for the private secretary of Lord Chancellor Lynd-hurst, was appointed Chief Justice of Bombay—shall I not have stated matters that make it as clear as it can be, that this was a friendly exchange of patronage between two Cabinet Ministers—one piece of patronage being in the Church, the other piece of patronage being in the law? But now Sir, for the statement which has been made. We are told by Lord Chancellor Lyndhurst that he had nothing to do with these appointments. I think, however, if the matter were inquired into, it would be clearly shown that he had a great deal to do with them, through the intervention of the Lord Chief Baron. We are told moreover, that these appointments occurred in regular course; that Mr. Phillips vacated his appointment as Chief Commissioner of Bankruptcy at Liverpool, in consequence of the vacancy made by the appointment of Mr. D. Pollock to be Chief Justice of Bombay. Now, Sir, we are sure that the appointment of Mr. Phillips took place on the 29th of June; and that the appointment of Mr. Pollock to be Chief Justice of Bombay did not take place till the 1st of July. So here is the appointment of the one preceding by two days the resignation of the other; and this is the second article of indictment I have to bring forward against these two Cabinet Ministers. The office of Commissioner for the Relief of Insolvent Debtors is an office created by an Act of Parliament passed in the year 1838, under which the appointments were vested in the Crown. The appointment of Chief Commissioner, as of every other Commissioner, is an appointment to be held, not during pleasure, but during good behaviour; these Commissioners are irremovable by the Crown, except on the joint address of both Houses of Parliament. At any rate, you have in this case of a high legal appointment a second instance where the resignation of the holder of the office is anticipated by the appointment of a successor, namely, of the Chief Commissioner of Bankruptcy from Liverpool. This, I say, is an infringement, not only of the common law and of the Constitution, but it is a direct infringement of an Act of Parliament. Again I am told that 940 when I impugned the qualifications of Mr. Perry to hold the office of Chief Commissioner of Bankruptcy at Liverpool, in doing so I displayed such ignorance of these matters as renders me "wholly unworthy the attention of any reasonable assembly." Now, Sir, I for one do not wish to disparage the talents of Mr. Perry; I am willing to take Lord Lyndhurst's word for the great ability of Mr. Perry—for his untiring industry, for his great zeal, and his great integrity, and for his fidelity to his Patron—a virtue which I for one do not underrate—but, Sir, I say that Mr. Perry may possess all the talents and good qualities that Lord Lyndhurst may be willing to attribute to him; yet, nevertheless, I have a right to charge Lord Lyndhurst, in the name of the public, with impropriety in the appointment of this gentleman for an office of this highly responsible character, where he must have the adjudication of causes involving, in one of the greatest commercial towns in the Empire, property to the annual amount of between 200,000l. and 300,000l.; I have, I say, in the name of the public, a right to impugn the appointment to such a situation of any one who has not the public confidence as well as the confidence of the Lord Chancellor himself. The public have a right to expect that, for an office of that importance, a barrister of high distinction—of talents not only known to his private friends, but to the public also—ought to be appointed; and I dare appeal to the bar, and ask the bar whether they were satisfied when Mr. Perry was appointed to that office? Yes, Sir, I dare ask whether the bar was satisfied when a gentleman was appointed to that office, who, I stated the other evening, had been ten years out of practice, but, as I am informed to-night, has been nineteen years out of practice? Is it possible that in such circumstances that gentleman is so well qualified by his public acts, and so well known to the public, as to entitle him to the confidence of that great community, a large portion of whose affairs he is appointed to adjudicate? I think, therefore, that whilst I am perfectly willing to admit that Mr. Perry may have all the good qualities that Lord Lyndhurst has ascribed to him, yet since he has not had the luck to rise in his profession to public eminence, he is not a fit person for the appointment of Chief Commissioner of Bankruptcy at Liverpool. Sir, I now come to the original charge, which is the appointment of Mr. D. Pollock to be 941 Chief Justice of Bombay. It has been endeavoured by the defenders of these transactions to be set forth, that it is only a common error that has been made in this case, and that it is a mistake which has been committed by all previous Governments of this country; and many instances were quoted to prove that assertion. But I want to know if there is any single instance in which a Chief Justice has been instanter superseded on his announcement of his readiness to make a prospective resignation? I should like to see all the letters of resignation that have been written by the different Chief Justices in the Colonies; and I venture to say, that there will be found none which will run on all fours with this case. Let it be remembered that Sir H. Roper did not offer to resign absolutely; he distinctly and plainly stated that he would resign on the 2nd of November following, when he should have completed the period of service which entitled him to a retiring pension, but not before. Nevertheless on this communication being made to the Board of Control, Her Majesty's Ministers—for there are four of them concerned—take on themselves immediately to appoint Sir H. Roper's successor, contrary to law, and sacrificing Sir H. Roper's right and title to the increase of pension, to the extent of 300l., to which he would have been entitled by holding on his office till the 2nd of November next. I say this is intolerable; for, though the Crown has the absolute right to remove at pleasure in those cases, yet as such proceedings would be contrary to justice and to the spirit of the Constitution, if the affair had stopped here it would not have had the sanction of Parliament. But, Sir, it does not stop here. We are told that this is only a blot, which now, for the first time, has been hit; but I must remind Lord Lyndhurst and the House that I am not the first who has hit this blot. This blot was first hit by Mr. Stephen, the Under Secretary of the Colonial Office. The President of the Board of Control was warned by a letter from the Colonial Office, that what he was doing was contrary to law. The first demand for letters patent to be made out, appointing a new Chief Justice for Bombay, was forwarded by the President of the Board of Control to the Colonial Office on the 16th of June. It was returned dishonoured by the Colonial Office. The President of the Board of Control, though we hear from Lord Lyndhurst that he is no lawyer, was pro 942 hac vice made a lawyer, for he was informed by Mr. Secretary Gladstone that this which he desired to do was contrary to law, and that it was not legally possible to confer in reversion the Chief Justiceship of Bombay on Mr. D. Pollock. On this the letter to the Colonial Office was withdrawn. Whether the letter to a similar effect that was sent to the East Indian Direction was withdrawn too, I cannot pretend to say. I believe in their haste that was forgotten to be done. But, Sir, then came the question with Lord Ripon, "How are we to escape from the law?" The fact was, no appointment could be properly made, and he knew it. Yes, Sir, no appointment could with propriety be made, and Lord Ripon knew it. Unless an absolute resignation by the Chief Justice of Bombay had taken place, it was impossible, except by a violent removal of Sir Henry Roper; and therefore it became necessary that a resignation by him should be recited in the patent, revoking his appointment, and conferring it on Mr. D. Pollock, that Sir Henry Roper had resigned. They consulted for that purpose. They adopted—I will use no hard language—they adopted a legal fiction; the language of these "Letters Patent" was no cold and idle phraseology, it was no mere profitless form of words—they were words which put at the disposal of Lord Chancellor Lyndhurst the Chief Commissionership of Bankruptcy at Liverpool, worth 1,800l. a year. Lord Ripon wrote a new letter to the Colonial Office, in which he stated that the Chief Justice of Bombay had actually resigned. A patent was accordingly drawn out, and signed by Mr. Secretary Gladstone, affirming—deliberately affirming — not through any oversight, but of "malice prepense" affirming—that which he knew not to be true, that Sir Henry Roper had resigned. Now, of this complicated transaction—I must not call it, as I did once before, "a nefarious job"—but of this complicated transaction, the result is, that Lord Lyndhurst appoints a friend of Lord Ripon to this much-desired living of Nocton; Lord Ripon appoints, through the means of this legal fiction—not Lord Lyndhurst's friend, but—a gentleman whose promotion will make a vacancy for Lord Lyndhurst's friend, to the Chief Justiceship of Bombay. In the same way Sir J. Graham appoints to the office which is still held by Mr. D. Pollock, and then Lord Lyndhurst obtains the object of his own ambition, and of his own 943 wishes—he has the Chief Commissionership of Bankruptcy at Liverpool worth 1,800l. a year to give away to his private secretary Mr. Perry. Now, recollecting all this, and recollecting that Sir J. Graham, as Secretary of State for the Home Department, appoints Mr. Phillips to the office of Commissioner for the Relief of Insolvent Debtors two days before any vacancy had been made in it; I trust, Sir, that I have, in the opinion of the House, made out a clear case in all the points that I originally took up; and having done that I hope I may be permitted to say a word respecting myself. Sir, I have been compared to Napoleon, of whom it is said, "that nothing was too great for his malignity, or too small for the grasp of his rapacity;" reference is made to "my early associations and early habits, which are assumed to have imbued me with "base, selfish, and sordid motives of action;" and the world is told that a charge coming from such a one as me finds its best antidote in the character of the calumniator. Now, Sir, I have no reason to feel ashamed of my early associations or habits. I have not yet abandoned, nor will I abandon, those associations. It is among the objects of my pride that I am still a steward of the Jockey Club. I say, Sir, that among the gentlemen of the turf there are men of as distinguished honour and character, and there ever have been men of as distinguished honour and character, as any to be found in political life. I am not about to retaliate, or to attack the life or character of the noble and learned Lord. Respect for his great age; respect for his high station; respect for his great abilities; respect, above all, for that position which denies to him the right of calling me to account elsewhere were I to address to him the language he has used to me, shall prevent me from retaliating, or from saying a word in disparagement of the private character of my Lord Lyndhurst. But when it is imputed to me "that there is nothing too great for my malignity, or too small for the grasp of my rapacity," and that I am governed by selfish, sordid, and base motives, I did hope that the whole course of my political life, in which it has been my good fortune to have such powerful friends as Mr. Canning and Lord Stanley, would have been a protection against a charge of being impelled by motives that are in any way either selfish, sordid, interested, or base. I have sat for eighteen years in Parliament, and eight years before that I had been engaged in public life under Mr. Canning; 944 but from that time to this I have never received one shilling of the public money, except as an officer of the army in the service of the Crown; and I defy any Member of any Government to say, however faithfully I may have supported them, that I ever asked them for employment or patronage of any kind whatever for myself. Sir, I should not have been so much surprised if these charges had come from any other person than Lord Lyndhurst; I should not have been so much surprised if any one else had alleged against me charges of the description he has preferred. The noble and learned Lord has compared me to the most despicable insects, and has accused me of using coarse and venomous invective. Sir, I will not say of Lord Lyndhurst, as he has said of me, that his calumnies are coarse, or that his weapons are of the same description. I will not deny that his sarcasms are addressed in more classical language; I admit the sharp edge and polish of his weapon; I admit that while I wield the broad sword and the bayonet, he has skill to use the rapier, and uses it with the power of a giant. But when the noble and learned Lord accuses me of selfishness, of base motives, of sordid idea, and of rapacity, I think if he were to carry his memory back to Friday, the 10th of July last, it might occur to him that he ought to have been the very last man to charge one with whom he was willing and anxious so lately to associate himself of such vile attributes as these. If I have declaimed against the want of principle of the late Government—if I have vehemently attacked it in this House, those attacks were made previous to the 10th of July; and yet Lord Lyndhurst condescended on that day to send me a messenger, accompanied by his own secretary, whom I did not see—but the messenger was one whose truth I could rely upon, for he is a merchant in the city of London, respected not only in the city of London, but in each of the four quarters of the globe, where he has extensive transactions—Lord Lyndhurst condescended to send me a messenger, who waited upon me, not quite before I was out of bed in the morning, but who called upon me on this special and important business, such was his haste, before nine o'clock in the morning of that day. An exposition was given of what had passed in the Cabinet of the Queen, and a proposition was made to me — perhaps with no more truth than the charges which have been alleged against me by the noble Lord—but the proposi- 945 tion was made to me, in anticipation of the debate on the Sugar Duties, that the minority which was represented by him to exist in the late Cabinet upon it should join in supporting me upon that question I do not know whether Lord Lyndhurst and the three Colleagues who he intimated agreed with him were to serve with me or under me; but this I know, that had I been ambitious, had it been my object only to obtain power, the opportunity was offered me; whilst the breath which had announced the Royal Assent to the passing of the Corn Bill was scarcely cold, the proposition was made to me that I should join with those of the late Government, who, while they had supported, had condemned the measures of that Government. And it was proposed by Lord Lyndhurst that he should personally wait upon that selfish, sordid, base, and rapacious individual who is now addressing you. Sir, it was not necessary for me to do more than to decline the honour of the visit, and to refer Lord Lyndhurst to Lord Stanley. I know not whether it is the frankness of my language to his messenger, which may have been, unintended by me, repeated to him, which has not been forgiven; for certainly I intimated to that gentleman, perhaps in too strong language, the manner in which my feelings revolted against any such association; and while I said I would not interfere with others, if any there were, who might be willing to join in such a coalition, I stated, for myself, that I could be no party to it. And now, Sir, I trust I have justified myself in the eyes of the House and the country, and satisfied all that, at least up to the 10th of July last, and before I turned public attention to the personal conduct of the late Chancellor, I could not have been, in the estimation of Lord Lyndhurst, that base, sordid, selfish, and rapacious man he seeks now to represent me.

§ MR. S. WORTLEY
would not follow the noble Lord through the statement he had made, nor advert to more than one portion of it. It would be extremely painful to him to put himself in collision with the noble Lord; and he would not presume to undertake the defence of those hon. and noble persons to whom the noble Lord had referred. But there was one individual whose name was not so distinguished as theirs, and to whom justice was equally due; an allusion had been made to that individual, and to that alone should he refer. On a former occasion the noble Lord had alluded to Mr. Perry, and his 946 appointment to the Court of Bankruptcy at Liverpool, in terms of condemnation; he had pronounced him as utterly unfit for that appointment, and he had that evening reiterated the assertion. He (Mr. Wortley) was not going to give any opinion of the qualifications of Mr. Perry, or of his fitness for the office; he had no personal acquaintance with Mr. Perry; he only knew that he had been a member of the bar for twenty-one years, and though he had not practised during a great part of that time, yet, as Secondary to the Lord Chancellor, he could not be otherwise than cognizant of the law of bankruptcy he was called on to administer. But he knew from Mr. Perry himself, that the noble Lord had been put in possession of facts for which he had listened in vain to the noble Lord's statement that evening, and which the noble Lord, in common candour, ought to have made known. [Lord G. BENTINCK: I forgot it.] He would sit down immediately if the noble Lord wished to make that addition to his statement.

§ LORD G. BENTINCK
I am very glad the hon. Gentleman has mentioned the circumstance. I did not think it was of so much importance. I believe I stated on the last occasion, that Mr. Commissioner Holroyd went down to Liverpool as the "dry-nurse of Mr. Perry." It has been already stated in the other House, by Lord Lyndhurst, and so circumstantially that I thought there was no occasion to reiterate the statement here, that Mr. Holroyd went down to Liverpool on the 23rd of June, while the appointment of Mr. Perry was in agitation, no doubt to clear off the arrears. He left immediately Mr. Perry arrived, and the latter proceeded with his duties without any assistance.

§ MR. S. WORTLEY
rejoiced that the omission of the statement had been unintentional on the part of the noble Lord, and that he had given him the opportunity of supplying it. The matter was not of so little importance as the noble Lord considered; he did not intend to injure the reputation of Mr. Perry, but he could be hardly aware of the effect his imputation was calculated to produce on a Gentleman in Mr. Perry's position. The noble Lord had appealed to the bar to say whether the appointment was approved of by that body; but he apprehended the bar was a bad tribunal to refer such a question to; in the first place interest might sometimes warp its judgment; and he would remind the noble Lord that some of the most 947 eminent Judges on the Bench, and the ablest functionaries of the legal profession, had been taken from comparative obscurity as regarded practice in the courts. The noble Lord could hardly have selected any terms more injurious to Mr. Perry. The fact was this:—Mr. Holroyd was sent down to help Mr. Ludlow, in the absence of Mr. Phillips; Mr. Perry arrived on Saturday night, and Mr. Holroyd returned to London on the Sunday, so that there was not the slightest reason for saying he had given any assistance to Mr. Perry. As to the rest of the noble Lord's statement, he should not touch it; those whom it concerned were well able to defend themselves.

COLONEL WOOD
asked the noble Lord, if the individual who waited on him from Lord Lyndhurst stated that had he any authority from other Members of the late Cabinet, or solely the authority of Lord Lyndhurst himself?

§ LORD G. BENTINCK
I stated distinctly that the messenger who came to me came authorized by Lord Lyndhurst alone. I distinctly stated that the allegation was made to me that other Members of the Cabinet were ready to join with him, but that very likely the representation had no more truth in it than the charges made against me.