HC Deb 16 March 1857 vol 144 cc2375-81

SIR ERSKINE PERRY rose to move for a copy of Correspondence between Mir Jafer Ali and the Court of Directors, and between the same and the President of the Board of Control, respecting the property of the late Nawab of Surat; and to ask Mr. Vernon Smith what are the intentions of Government relating thereto. The House had exhibited a great interest in this question, and he was desirous of bringing to its attention the present state of the affair. As the House was aware, the matter turned on a treaty which had been entered into between the late Nawab of Surat and the East India Company, by which the Nawab agreed to surrender his principality, and the East India Company agreed to pay him and his family a pension of £15,000 a year in perpetuity. Subsequently, however, upon the death of the Nawab, the East India Company interpreted the treaty in a manner peculiarly favourable to themselves, and refused to pay the sum of £15,000 a year to the heirs of the Nawab. A Committee of that House had inquired into the matter, and had unanimously decided that the East India Company was wrong; but, in consequence of some technicality, a Bill, founded upon the Report of the Committee, had been thrown out in the other House of Parliament without any investigation into the case. In the discussion which took place last Session, the right hon. Gentleman the President of the Board of Control had held out the suggestion that if the Indian gentleman whose case he was now laying before the House applied to the India House, liberal terms would be offered to him; that suggestion had been acted upon, and the East India Company had agreed to pay to this gentleman a pension of £10,000 a year for life, and afterwards to his two daughters; and that offer, although he did not consider it a liberal one, inasmuch as the annuity had been stipulated for ever, he had advised this Indian gentleman to accept in order to put an end to a ruinous litigation. There was, however, another question connected with the private property of the late Nawab. When that Sovereign died the Government seized by force the whole private property belonging to his family, in order, as they asserted, to hold it in charge until certain claims should be awarded, and the property had remained undistributed to that day; and what the Indian gentleman whom he represented prayed for was a judicial decision respecting it. The Bombay Government, having made themselves masters of the property, advertised for claims, and about 150 claimants sprung up. The Bombay Legislature then passed an Act giving the Executive Government full power to dispose of the property, so as to exclude all intervention of the courts of justice. This most extraordinary proceeding terminated in referring the matter to one of the law officers of the Government, a man not bred to the law, who came to a deliberate decision by which the property was given to other claimants. All parties were dissatisfied, and all wished to appeal, but all judicial action was excluded by the law. The Nawab appealed to the Bombay Government against the award; but the Government confirmed the decision of their officer. The individual in question appealed to the Privy Council; but the extraordinary Act which he had mentioned left them no jurisdiction. They had the power of hearing appeals from courts of justice, but not from an act of the Executive. This was a question not only of property, but of family honour. The gentleman had for years attempted to persuade Government to allow the case to be heard. He begged them to enable the Board of Control to act properly in the matter, and to do an act of justice in accordance with the highest tribunal in the kingdom. His right hon. Friend the President of the Board of Control had felt the difficulty; he had behaved liberally, and acted with kindness and consideration; but he was staggered with the difficulties of the case. Yet he was placed in his high office for the purpose of grappling with difficulties. It was for the purpose of dealing with such difficulties that the office of the President of the Board of Control had reached its present high position. This gentleman demanded that a stigma which was attached to his birth should be removed. The only possible ground for refusing the request was this—that an Act had been passed by the East India Company in favour of another party, and that it would be unjust to the person in possession to allow appeal. But there was an easy answer to this, that the persons now in possession themselves desired an appeal. Again, a despotic Government like that of India was placed in few hands. The Governor was often absent, acts of maladministration often took place, and these acts of injustice ought to be subject to control. He trusted that his right hon. Friend would allow the appeal to the Privy Council, and for that purpose would either obtain an Act of Council in India repealing the Act of the Bombay Government, or, what would be better, that he would bring into that House a measure which by a few clauses would grant what they were so anxious to have—an appeal to the Privy Council.


said, that this Act of the Indian Legislature was invalid because it was in contravention of the Act of the Imperial Legislature, which provided that no law should be made by that Legislature which interfered with any of Her Majesty's prerogatives; and since, by this mode of dealing with the property of Her Majesty's subjects in India, without even an appeal to the Privy Council, the prerogative of the Crown was entirely set aside, he confidently predicted that if ever this Act should be brought under the cognizance of a court of justice in England, it would be set aside on that ground. It would, however, be impossible to bring the validity of that Act under the consideration of such a court without a course of litigation which it was alarming and painful to contemplate; and he therefore thought it was highly desirable that the Board of Control should recommend the Indian Legislature either to repeal this Act, or so to amend it as to allow an appeal to the Privy Council. The course was not only just but highly expedient; for even the persons in whose favour the award had been made were dissatisfied. Nothing was wanting but a little firmness and vigour on the part of the President of the Board of Control. Instead of this subject having been referred to the law officers of the Crown, the Lord Chancellor had been consulted upon it. No one could respect the opinion and decision of the Lord Chancellor more than he did; but nothing could be more inconsistent with the first principles of justice than to submit such a question to any one without giving to those who were interested in the decision an opportunity of being heard. Had the Lord Chancellor heard counsel for a quarter of an hour, he must have pronounced that this Act was invalid, and must be repealed or amended. He therefore hoped that the right hon. Gentleman the President of the Board of Control would either on his own responsibility recommend the Legislature of India to amend this Act so as to give an appeal directly to the Privy Council, or would give this aggrieved gentleman the opportunity of being heard, if it were but for half an hour, by some counsel at the bar, who, he was sure, would not fail to satisfy either the right hon. Gentleman himself, the law officers of the Crown, or the Lord Chancellor, that this claim was founded on law and equity, and that justice never would be done unless some appeal were allowed.


said, he had been forcibly struck by the argument that the prerogative of the Crown had been set aside by this Act of the Bombay Government. He thought it most desirable that the Attorney General would state his opinion as to the validity or invalidity of that clause in the Act passed by the Indian Legislature which abolished the right of appeal.


said, he should have no objection to the production of the correspondence moved for, inasmuch as it would furnish the House with further information, which was absolutely necessary for the proper discussion of this subject at any future time. The hon. Gentleman the Member for Devonport had not stated this case correctly nor fairly. The whole case had been submitted to Parliament last Session in the shape of a Bill, which passed through the House of Commons, but was rejected by the House of Lords; and he should not therefore enter into details—especially because since that time the East India Company had offered to the gentleman calling himself the Nawab of Surat a sum of money which he believed was perfectly satisfactory to him. and which his friends had advised him to accept. The question was now confined to the right of appeal to the Privy Council in respect to the private property. He believed it had already been decided by the Privy Council that no appeal would lie; but an opinion had been expressed that the Crown might direct a reference. The course which he had pursued in respect to such a reference was the only course open to him. The hon. and learned Member for Suffolk (Sir F. Kelly) had found fault with him for no taking the opinion of the law officers instead of the Lord Chancellor on this point but he did not know that the law officers would have had the power of hearing counsel, nor could he exactly see how the parties could have appeared before the law officers by counsel. His hon. and learned Friend the Attorney General had already given an opinion on the subject, in his private capacity, and it would not have been exactly delicate to refer the question to him again as a law officer. His predecessor, the present First Lord of the Admiralty, had refused to direct this reference and the opinion of four eminent counsel who had been consulted by the East India Company was also against it. The hon. and learned Gentleman opposite maintained that this Act of the Indian Legislature was not valid; but it was the business of Mir Jaffir and not of the Board of Control to bring this point to a decision in a court of justice. As to the want of firmness and vigour on his part which was complained of, he hoped he should always be wanting in that kind of vigour which, by an excessive precipitation to act on ex parte pressure, too frequently committed injustice on absent unrepresented persons. In this case, the property referred to had been already allotted out to the parties interested under the award of Mr. Frere, and if there were now to be an appeal from that award low were they to appear? The hon. and learned Gentleman opposite maintained that these parties had themselves wished or an appeal; but he did not believe that that was the case at the present moment, Mir Jaffir himself had consented to that award; he had been heard before the Commissioners, and now that he was dissatisfied with their decision, he wished to upset the whole thing. But the other parties to the award had quite as much right to be considered as Mir Jaffir. As at present advised, he saw no reason to doubt that that award was perfectly just. As to the Act of Legislature, it was a great mistake to think that it could be superseded merely by sending out orders from the Board of Control. On the whole, looking to the opinion of the highest legal authorities in this country, and to opinions also expressed by the Committee to which the Bill of last Session was referred, he did not think it advisable to take any steps in the matter. If the hon. and learned Gentleman chose in a future Session to take this question up in another shape, he (Mr. V, Smith) believed he would experience the impossibility of dealing with an Act which had been sanctioned by Parliament, under which an award had been given by a competent person, an allotment of the property having been made under such award to certain individuals, who had no opportunity or chance of contesting their rights before the Privy Council except at an expense so enormous as to be utterly ruinous to them.


inquired, whether the question of the validity of the Act of the Indian Legislature had ever been submitted to the Lord Chancellor, the counsel to the East India Company, the law officers of the Crown, or any other legal authorities?


was not aware that it had; but the Act had been in operation for ten years.


said, the hon. and learned Gentleman (Sir F. Kelly) seemed to think the Indian courts had not the same power of declaring this Act illegal or invalid as the courts of England. Upon that point he (Mr. Lowe) differed from the hon. Gentleman. Colonial or Indian courts had exactly the same power of declaring an Act of the Legislature unadvised as the highest courts in this kingdom.


denied that any one of his propositions was incorrect or unfair. He had brought the case forward because the petitioner had been a suitor for justice for fifteen years. He understood the right hon. Gentleman (Mr. V. Smith) now to decide absolutely against the petitioner's case. If that decision had been given months ago the petitioner would have been enabled to take another course. The Attorney General had given an opinion that the Act of the Indian Legislature which took away from the Queen the right of hearing her subjects in the last resort was invalid, and he recommended an appeal to the Privy Council; but their Lordships had decided that the Act was valid. He (Sir E. Perry) believed if a measure on the subject were brought forward next Session he would be able to convince the House that the Act in question was founded upon principles of injustice, and that the House would think it their duty to repeal the Act, and leave all parties to seek a remedy before a judicial tribunal.

Motion agreed to. Copy ordered, "of the Correspondence between Mir Jafer Ali Khan and the Court of Directors, and between the same and the President of the Board of Control, respecting the property of the late Nawab of Surat.

The House adjourned at half-past Six o'clock.