HC Deb 11 July 1856 vol 143 cc674-8
SIR FITZROY KELLY

said, he wished to ask the First Lord of the Treasury, whether it was the intention of Her Majesty's Government to take the opinion of the law officers of the Crown (including the Queen's Advocate, whose especial duty it was, when called upon to advise the Crown upon the construction of treaties), as to the true meaning and effect of the treaty of 1800 between the hon. East India Company and the then Nawab of Surat; and, in the event of such law officers advising that, under the said treaty the East India Company were bound to pay to the heirs of the said Nawab the annuity therein mentioned, whether it was the intention of Her Majesty's Government or the Board of Control, to order or direct such payment to be made by the said hon. East India Company accordingly? It was well known that, when the territory of Surat was annexed, the East India Company agreed to pay the Nawab an annuity of £15,000. The son of the Nawab died in 1840; and his son-in-law, the husband of the late Nawab's only daughter, and the father of two infant children, his only surviving descendants, demanded the annuity; but the East India Company had refused to recognise his claim. Now, he contended that the decisions hitherto given by the Indian Board on this claim had been entirely ex parte, the representatives of the deceased Nawab never having been heard at all. The annuity was charged by the treaty, not upon the general revenues of India, but upon those of the state of Surat itself, of which the East India Company had possessed themselves; and so long as those revenues were able to bear the burden, so long he maintained was the Company bound to pay it. The treaty bound the East India Company to pay this annuity to the Nawab and his heirs; and the simple question was, as to the meaning of the term "heirs." Meer Jaffier Ali, who now claimed to be the heir, had come to this country, and, being a British subject, had petitioned the House of Commons in favour of his claim; and a Bill founded upon that petition had been brought in, but had been rejected by the other House. The East India Company, wielding all the powers of the British Government, had solemnly entered into this treaty, by which a native prince was degraded to the rank of a subject; an annuity was secured to himself and his family; the payment was now disputed; and the British Government denied to those aggrieved parties the right of appealing to a Court of Law. They had been advised by the most eminent lawyers in this country that they were entitled to the annuity; but owing to the mode in which the treaty was framed, under the authority of the Crown, the claimants had no power to enforce their right in a Court of Law. It was said that Meer Jaffier Ali had done wrong in canvassing Members. Now, he would ask hon. Members what other course was open to him? He admitted that he had canvassed him (Sir F. Kelly), and no doubt many other Members. Being advised that he had a well-grounded claim, and finding that the door of every Court in the kingdom was closed against him, what could he do unless he appealed to that House? The Bill had been introduced in that House as a Private Bill, tinder the authority of Mr. Speaker, and had passed by an immense majority; in the other House it had been rejected because it was a Private Bill. The treaty had been submitted to a Select Committee of five learned Gentlemen who had unanimously determined that, according to its true effect and meaning, the present claimant was entitled to the annuity. It appeared that, while the treaty was in negotiation, discussion arose as to the meaning of the terms "and his heirs;" and the prince was assured by the Government of Bombay, that he might rely on the honour and good faith of the East India Company, and that those terms in the treaty would secure the annuity to his representatives and descendants for ever. It was only upon that representation that he had signed the treaty and given up possession of his dominion. The Company paid him the annuity as long as he lived, and continued it to his son after him; but when there ceased to be a direct successor to the Nawab, the East India Company refused payment to his heirs and representatives, alleging that the annuity was only payable to the Nawab for the time being, and that the Company had the power of determining that office whenever they pleased: thus constituting themselves the judges of their own case, and the interpreters of their own treaty. When the case came before the House, the hon. Member for Honiton (Sir J. Hogg) had strenuously defended the East India Company; but the Bill was, as he had previously mentioned, carried by a large majority, thus affirming the decision of the Committee. Upon that taking place, overtures were made to the East India Company, and the Vice President of the Board agreed to them; but they were rejected by a majority of the Directors, and the claimant was obliged to proceed with his Bill in the other House, and the result was what he had stated. Either the money was due or not; if it was, could any Minister of the Crown refuse to take further steps? There was but one course open to them, and that was to take the opinion of the law officers of the Crown, and to act in accordance with it. By the Statute of 3 & 4 Will. IV., cap. 85, the Government had power to order the annuity to be paid by the East India Company, if they were of opinion that it was due. If they thought otherwise, at least let them take the opinion of the law officers of the Crown, or refer the matter to the Judicial Committee of the Privy Council. He appealed most earnestly to the Government to do this. In the course of a long experience he had never felt more strongly than on this case. It was incompatible with honour, justice, or any motive that ought to regulate men's actions, that the matter should be allowed to rest where it was.

MR. VERNON SMITH

said, he must complain of the hon. and learned Gentleman bringing forward this case on the Motion for the adjournment of the House. He had heard a great many desultory debates on the question of adjournment; but he had never heard so enormous an abuse of the privilege of debate as that of the hon. and learned Gentleman on the present occasion. He had gone over the whole of a case that had been three times debated, submitted to the Legislature as a Bill, sanctioned by that House, and rejected by the other. He must protest against such a proceeding. It was likewise extremely unfair to those who were not prepared to enter into such a discussion. The question was a very simple one, namely, whether the Government would follow the course which the hon. and learned Gentleman suggested. As to the claim of the Nawab, the hon. and learned Gentleman had made many erroneous statements and many dogmatic assertions. He had evidently given considerable study to the question, and there was no necessity for him to ask the opinion of any legal adviser. He had also referred to Members being canvassed in support of the Bill. He (Mr. Smith) was not aware that he ever made that charge; if he did, he certainly never alluded to the hon. and learned Gentleman. If he had been canvassed, nobody could object to that, on account of the interest which he took in the question. Canvassing, in reference to a Private Bill, meant the solicitation of Gentlemen who knew nothing about the question. The hon. and learned Gentleman had stated his own decided view on this matter; but it was clear, from his own showing, that there were doubts on the construction of the treaty. The hon. and learned Gentleman said that the authorities were all on one side on this question. Did he mean to say that Lord Ellenborough and the other Governors General of India, who had decided the question over and over again, were no authorities? With regard to the question of the hon. and learned Gentleman, his hearty hope was that the advisers of Meer Jaffier Ali would recommend him to go again to the Court of Directors and lay before them the whole of his case as he thought it should be stated. If he took that course he trusted the Executive Government of India would be prepared, setting aside all the irritation which might have arisen from the contest in that House, to come to such an agreement as would be satisfactory to all parties. If they could not come to a settlement, it would then be the duty of the Government to see that the question did not remain where it was. The hon. and learned Gentleman proposed to lay the case before the law officers of the Crown. But with all due respect to the law officers of the Crown, he did not think they were the best persons to consult on questions of Mahomedan law and the modes of descent in India. The other alternative was to refer the question to the Privy Council. He was of opinion that it would be useful to adopt that course, because the Judges of that tribunal were conversant with subjects of this kind. But the law officers of the Crown were not in favour of a reference to the Privy Council, as they doubted whether it could be done under the 4th section of the Privy Council Act. There certainly was a want of some tribunal to decide questions of this kind. The present was a question of the interpretation of a treaty made by the Executive Government of India and a Foreign State, and the question was to what tribunal that interpretation was to be referred. With regard to the power of the Board of Control to order the Court of Directors to make payment from the revenues of India in cases of this kind, he was by no means clear. There was a just jealousy on the part of the Indian Government of any interference by the Board of Control with the revenues of India. The power of checking expense was absolute and clear, but not the power of expenditure. However, if he found any injustice done, he should not confine himself to the issuing of a doubtful order, but should call on Parliament for a special Act to give him the power of performing justice.

Subject dropped.