HC Deb 06 June 1861 vol 163 cc647-52

The next Bill which I propose to ask leave to introduce is a Bill for the purpose of forming one instead of two Superior Courts in India. There is the Supreme Court, consisting of lawyers and Queen's Judges sent out from this country, which has complete jurisdiction over the three Presidency towns of Bengal, Bombay, and Madras, and exclusive criminal jurisdiction in important matters over Europeans, in whatever part of India they may be. There is also the Sadder Court, That is a Court of Appeal for all the Courts in the country, whether they are presided over by Natives or by Europeans; and it also exercises over those Courts a sort of superintendence, or what may be called the functions of a Minister of Justice. In the evidence which was given before the Committee that sat on East India affairs in 1852–53, a strong opinion was expressed by those most competent to give an opinion, that it was desirable, with a view to the better administration of justice in India, that those two Courts should be consolidated into one, which would unite the legal knowledge of the English lawyers with the intimate knowledge of the customs, habits, and laws of the Natives possessed by the Judges in the country. I was very anxious in introducing the Bill of 1853 to include a provision for effecting the object I now propose, and to empower Her Majesty to issue Her charter for the establishment of a united Court, and to lay down regulations for its guidance. But I found that the Members of the Indian Law Commission, though they were most anxious that this measure should pass, thought it would be useless to attempt to unite the Courts till certain forms of procedure were established, which would enable the amalgamated Court to do what the two Courts had been accustomed to do. I was, therefore, compelled to postpone legislation on the subject. In order to obtain the basis on which the form of procedure could be framed, a Royal Commission was issued in this country to a number of gentlemen of the highest attainments to report generally on the subject. I certainly considered myself remarkably fortunate in obtaining the assistance of the gentlemen who formed that Commission. They were Sir John Romilly, Master of the Rolls; Sir John Jervis, Chief Justice of the Common Pleas; Sir Edward Ryan, late Chief Justice at Calcutta; Mr. Cameron, late President of the Law Commission and Member of Council at Calcutta; Mr. M'Leod, of the Civil Service, Madras, also a Member of the Law Commission; Mr. Ellis, the accomplished reporter of the decisions of the Court of Queen's Bench; Mr. Lowe, M.P., intimately acquainted with colonial courts of justice as well as English law; Mr. Hawkins, late Judge of the Sudder Court, Calcutta, and afterwards Secretary to the Law Commission; Mr. Baillie, whose practical professional knowledge of Indian law and Courts in the country districts there was of the utmost importance in such an inquiry. The Commission devised forms of both civil and criminal procedure, which I believe—if I may say so in the presence of gentlemen of the long robe—are superior to any that exist in this country. The House knows that more than a quarter of a century ago Lord Macaulay, assisted by many able gentlemen in Calcutta, framed a criminal code. That code was tossed backwards and forwards between this country and India; and I recollect that when I was President of the Board of Control it appeared to be no more likely to be acted upon than it had been twenty years ago. No doubt there was a necessity for some form of procedure for that criminal code, and the Commission to which I have referred drew up a form of procedure which has been under the consideration of a Committee of the Council in India. That Committee has reported in favour of the form of procedure recommended by the Commissioners, and I have no doubt that in the course of a few weeks it will have passed into a law. Lord Macaulay's criminal code has already passed into law, and I believe that at last, after so long an interval, the people of India will, from the 1st of January next, have a form of procedure and a criminal code which will bear comparison with those of the most enlightened people in any country in Europe. The Commission also recommended a form of procedure in civil cases, which is now in full force, and the result of its working shows that it has been most successful. The reports from the various districts prove that it has done much to diminish the expense, time, and amount of litigation. The Lieutenant Governor of Bengal says— The result of all the inquiries I have made from the Native Judges, by whom nearly all original suits are tried, and of whom I have now seen many in different parts of the Lower Provinces, is, that the new procedure, in working, has been successful, even above all hope. The Lieutenant Governor of the North-West Provinces Concurs with the Sudder Court of the North-West Provinces that Act VIII. of 1859 (the code of civil procedure) is one of the best Acts ever passed by the Legislature. A private letter from the Judge of Benares (Mr. W. Edwards) states that in his district, and he believes in all the districts of (he North-West Provinces, the code of civil procedure has had a remarkable effect in expediting and improving the administration of justice. The number of cases pending at the close of certain periodical eras is given in the margin. These show that in 1835 the number was 1,475; in 1840, 1,640; in 1850, 1,699; in 1855, 955; in 1860, the first year of the new code, 175. The average duration of a case in each class of Courts in the district has been reduced to less than one-third since the code came into force. The total cost of 25 cases taken at random, under the old system, was 1,711 rupees, under the new, 687 rupees. The number of papers in each case under the old system was 27, under the new 11. The remaining part of the civil code to be dealt with is a work of no mean importance. Looking at the results that have arisen from the appointment of the Commission in 1852, and which ended, its labours two or three years afterwards, I think I cannot take a course more advantageous for the improvement of the jurisprudence of India than to appoint a similar Commission now. I am happy to say that Sir John Romilly and others of the old Commissioners have agreed to act, and I hope they will be able to devise a civil code as good in character as the criminal code. The Commissioners also recommended the formation of district Courts in the country, a recommendation which is under the consideration of the Government of India. All the measures to which I have referred it is competent for the Government of India, there or at home, to carry out. The matter to which I wish to call the attention of the House more particularly is the crowning point of the whole, and the only one for which the sanction of Parliament is necessary. When that is done, so far as legislation goes, the whole of the recommendations of the Commission will have been carried into effect. The last of their recommendations was the formation of a high Court to exercise the functions now performed by the Supreme and Sudder Courts. The Bill I now propose to introduce has been sent to Bengal, where it has been submitted to the observation of the Judges of the Supreme Court, and the amendments suggested by them have been introduced into the Bill. The Judges of the Supreme Court of Madras were also in favour of amalgamating the Courts, and I have likewise received the suggestions of one of the Judges of the Supreme Court of Bombay. The present Supreme Court consists entirely of Queen's Judges sent from this country, while the Sudder Court consists entirely of members of the Civil Service who have risen through the successive stages of the service, but who have not necessarily had the slightest legal training. With their great knowledge of local habits and customs will be united the legal training and knowledge of the English, Scotch, and Irish bars; their knowledge of Native habits and customs will be of the greatest assistance in guiding the opinions of the legal members of the Court; and the union of these two classes of Judges will constitute a far better Court than would be formed by either separately. We propose that in the new Court there shall be a certain proportion of barristers or ad- vocates of the Scotch bar; that there shall be a certain proportion of civil servants, and that the remainder shall consist either of one or other of those classes, or of barristers trained in India, or of Native Judges. An impression has gone abroad in India that the Government are adverse to the appointment of Native Judges. That is not so. Lord Canning has expressed a decided opinion that Native Judges, well trained, are as well qualified as any other persons to take their places by the side of English Judges in the high Court. That is provided for in the Bill, and the Judges will, therefore, be chosen from among those three classes. I do not know that I need go into any further detail respecting the Court. Its advantages are clear. We shall have one Supreme Court, one sole Court of Appeal, instead of two, and, inasmuch as the administration of justice in the minor Courts depends on the mode in which the appeals sent up from them are treated, the superior Court thus constituted will, I hope, improve the administration of justice generally throughout India. It is notorious that the greatest confidence is felt by the Natives in the administration of justice by the Supreme Court even at present. Now, according to the provisions of this Bill, the Judges of the Supreme Court may be sent on circuit throughout the country. The effect of this will be that in important cases occurring in the various districts, justice, as in this country, will be administered on the spot by a trained Judge. At present, if an Englishman commits a crime which may subject him to serious punishment, he and all the witnesses must be brought to Calcutta, and the case must be tried there. In future an English Judge going into the country will be able to try these cases. At present when a crime is committed up country by an European the necessity of bringing him to Calcutta amounts, in many cases, to an absolute denial of justice. It may be impossible in a country like India to bring justice to every man's door, but, at all events, the system now proposed will bring it far nearer than at present; and where criminal offences are committed by a European—happily such instances are rare—the impartial administration of justice on the spot will produce a most desirable influence on the minds of the Natives. I think I need not trouble the House with any further observations upon this Bill. I trust that I shall be allowed to introduce it, and that, having some years ago, when President of the Board of Control, introduced various measures to improve the administration of the law in India, I may now be permitted to give a finishing stroke to that good work by carrying into effect the last recommendations of the eminent Commissioners who inquired into that important subject.

Leave given.

Bill for establishing High Courts of Judicature in India, ordered to be brought in by Sir CHARLES WOOD, Viscount PALMEKSTON, and Lord JOHN RUSSELL.

Bill presented, and read 1°, to be read 2° on Thursday next, and to be printed. [Bill 163.]