HC Deb 30 June 1865 vol 180 cc1016-22

said, he wished to call attention to conduct on the part of the Secretary of State for India (Sir Charles Wood) which amounted, in his opinion, to a denial of justice, and an attempt to overrule the prerogative of the Crown as exercised by the Queen in Council. The right hon. Gentleman was unable to be present to-night from illness, but he understood that the Attorney General would represent him. The subject to which he wished to call the attention of the House involved a great delay of justice, and it concerned the property of the Begum Somroo. She had always been a faithful friend of the British Government, but on her death, in 1836, her estates were seized, and up to this time the Government of India had prevented the dispute which arose in consequence of that seizure being brought to a termination in the courts of law. To show the character of that lady, he need only refer to a letter from Lord William Bentinck, written to her the day before he left India, in which he spoke in the warmest terms of her charitable and benevolent disposition, and expressed a wish that she might long be spared to be a solace to the unfortunate. At her death, a large portion of her estates was seized by the British Government. They seized her papers also, and to this day had refused to give them up or allow copies to be taken of them. Mr. Dyce Sombre, her adopted son and her heir, who had received this property partly by deed of gift and partly by will, protested against this seizure, and furnished the Government with copies of the engagement between the Begum in 1805 and Lord Wellesley, and of other documents which showed that the property was his. Some delay occurred at the time. The matter was brought before the Home Government and the Court of Directors, and at length the Court of Directors decided that they were the owners of this property and refused to give it up. Mr. Dyce Sombre left untried no means of obtaining restitution, and when he became insane, the Lord Chancellor, acting on his behalf, instructed his solicitors in Calcutta to take the necessary proceedings against the British Government. This was in the autumn of 1847. When he died, the Government denied the rights of those who succeeded him, but that was got over, and the heirs-at-law of Mr. Dyce Sombre went on with the proceedings against the Government. But, though twenty-nine years had elapsed since the seizure was made, the case was still even unheard. This long delay was explained by the fact that the Government in India was accustomed to interfere with and control the highest Judges in India, in a manner which would not be tolerated here in the case of the meanest magistrate. They even selected Judges to try the cases in which they themselves were interested. The proceedings in this case furnished ample illustration of this kind of misconduct. When, after many difficulties interposed by the Government, it appeared that the case was at length about to be brought to trial, they adopted, in the first instauce, the manœuvre of selecting the Judge who was to try it, and selected not the Judge who in ordinary course ought to have tried it. On the 13th of October, 1863, a telegram was sent by the Secretary at Bengal to the Commissioner at Delhi to this effect— The Supreme Government have deputed Mr. Moorfield to conduct the Dyce Sombre case. You are to instruct Mr. Thornton to try it. Mr. Thornton was at that time the Judge of the Small Causes Court at Delhi. And he was not the regular Judge who ought to have tried it. The person who ought to have tried it was Mr. Cooper, C.B., the Deputy Commissioner at Delhi, an eminent man among the Judges, and an officer of nearly seventeen years' standing; but the Government had ascertained that Mr. Cooper had already expressed an opinion on the merits of their case, to the effect that they had no case at all, and that restitution of the property ought to be made. The 3rd of November was fixed by Mr. Thornton for the trial of the case, but subsequently, being importuned by the Government, he postponed the hearing until the 2nd of January, 1864. He also called on the plaintiffs to produce the documentary evidence which they wished to supply, and ordered them to file fresh plaints in the case. Their plaints, in fact, had been filed seventeen years before, and the extraordinary ground assigned for the order was that the former plaints had been lost while in the custody of the Court. The plaintiff lost no time in filing fresh plaints. The pleas put in by the Government filed on the 4th of September, 1848, were partly objections to the jurisdiction of the Court, and also that the Statute of Limitations ran against the heirs of Dyce Sombre, and that the Court on that account could not try the case. They also pleaded that as the case had occurred in a certain district it ought to be tried there. The Government also pleaded that, twelve years having elapsed since the seizure, the question could not be tried at all. The courts in India decided against the Government on the question of jurisdiction, but on the plea of time gave a decision in favour of the Government. Upon appeal, the Judicial Committee of the Privy Council decided against the Government on the question of time, and the whole matter was remitted back to the courts in India, to proceed in the suit. He had mentioned the fact that delays were opposed to the progress of the suit by the conduct of the Judge selected in India; but he did not blame the Judge in any degree so much as Her Majesty's Government, because he found the Government over and over again asking for time, first for one period of six months, and then for another period of six months. In 1859 a memorial was presented to the Secretary of State praying him to cause the case to be decided under a certain clause in the India Act in this country; but that request was denied. Arbitration was proposed by the plaintiff, but refused by the Secretary of State because the papers were not in this country, but in India. But what took place in India? When the suit went on there, the Government made an application to the Court for six months' delay, on the ground that the papers were in England. He was sorry to. say that the Judge of their own selection decided in their favour, and when Mr. Thornton, who had decided three or four times in favour of the Government on questions of delay, was promoted, nobody was surprised. On the 8th of October the case came before a new Judge—Captain M'Mahon—and the counsel acting for the Government was the Judge who had replaced Mr. Thornton in the Small Cause Court, and he applied for a further adjournment of six months, because the documents wanted from England had not yet arrived. However, the Judge would only grant a postponement from October to December. The Government then appealed against that decision to a Court which, he was informed, had no proper jurisdiction in the matter, and, up to the present moment, no decision had been given, so that, by lapse of time, the Government had obtained a greater delay than they at first applied for. The case was subsequently brought before another Judge—Mr. Nisbett—selected by the Government, instead of before Colonel Hamilton, the Commissioner at Delhi, a gentleman of great experience, because that gallant gentleman had been consulted by the Government, and had frankly given an opinion against them. Therefore, for the second time, the Government adopted a course disgraceful to themselves and destructive of the fair course of justice, and placed the case before an inferior Judge of their own selection. He had carefully abstained from going into the merits of the case, but he called on the Government, if they had any regard for their own character and the due course of justice, to give up their technicalities and to insist on this case being tried on its merits. It might be urged that the Queen in Council had already ordered the matter to be proceeded with, but the last plea put in by the Secretary of State for India, and filed on the 27th of April, 1865, set forth that the matters mentioned in the plaint were things done by the Government of India in their political capacity and as matters of State policy, and therefore the Court had no jurisdiction with regard to them. No doubt the Secretary of State had great power and influence, but he very much questioned whether the suit could be stopped in that way, seeing that the Queen in Council had ordered it to be proceeded with. He thought that a matter like this might fairly be brought before the House, and he asked the Secretary of State to re-consider his policy, and to direct the suit to be carried on with all possible dispatch.


said, he should be unable to give more than a general reply to the question of the hon. Gentleman, as there were many things which no one but the Secretary for India could deal with. He could only deal with general principles and the facts with which he was acquainted. He must, however, in the first instance, protest against any attempt to induce that House to pronounce an opinion upon matters still in progress of litigation, especially when the statements upon which it was asked to decide were ex parte, and made only in the interest of one party. Nothing could be more inconvenient than for the House to enter into such discussions of pending suits upon the invitation of any one party to the suit who could find an hon. Member to introduce the subject. It was totally impossible that under such circumstances the real facts could be known, and therefore it was simply an attempt to prepossess the minds of the House with ideas that might turn out to be utterly fallacious. He was not altogether unacquainted with the facts of this case, because he had been counsel for the plaintiff in the successful appeal before the Privy Council in] 858. The facts were briefly these. The Begum had been a feudatory of a Native Prince, and was allowed to retain her territory when the East India Company obtained possession of the country. Upon her death the Company took possession of that particular district of land, and of certain arms which they alleged to be public property, vested in her only as an incident of her feudal government, but the title to which on her death became extinct. A length of time elapsed before the question of right was raised, and for that delay the Indian Government were not responsible. At last two suits were instituted, one for the land and another for the arms, which were met, in the first instance, by the objection that they were barred by the lapse of time—twelve years having passed over. The decision of the Court in India upon that point was against the plaintiff, who then appealed to the Privy Council; but, instead of prosecuting the appeal with diligence, it was not until 1858 that it was heard, twenty years after the death of the Begum. The Privy Council, under the peculiar circumstances of the insanity of Mr. Dyce Sombre during a portion of the time, threw a certain part of the time out of consideration, and reversed the judgment of the Court in India upon the point of the Law of Limitations, leaving the other questions of jurisdiction and whether this was an Act of State, untouched. The case then went back to India, and the defence taken was that the property sued for was public property, and that consequently the Court had no jurisdiction. The instructions authorizing that defence to be taken went out from this country in November, 1859, shortly after the change of Government, and they were the result of a consideration of the case during the tenure of office of the noble Lord the Member for King's Lynn (Lord Stanley), than whom all would admit no one would be more candid, dispassionate, and just. It was the opinion of that noble Lord, or of those whom he consulted, that primâ facie the property in dispute was public property, and that the suits should be defended on that ground. Since then there might have been delays, no doubt caused in part by the necessity of making use of papers, some of which were in India, and some in England; for the papers were of course distributed over both countries. Moreover, in the meantime the Government of India had been changed, the mutiny had broken out and been suppressed, and the judicial system of the country had been altered, and possibly delays might have arisen from those causes. A pamphlet had been published upon this subject, which had been sent to Sir John Lawrence, who, in a letter to the Indian Government, stated that he was satisfied the Government could have no object in delay; but he believed there had been greater delays than ought to have occurred, which, however, he thought were attributable to the plaintiff as well as to the defendant, It really was most unreasonable to ask the House to form an opinion of the merits of a case like this, arising in a far distant country, after the lapse of many years from the occurrence of the events, and when the litigation was still proceeding. There could be no doubt that for the first twenty years the delay was attributable to the plaintiff. Litigation, whether with a Government or between individuals, generally occupied more time than was desirable, because its prolongation necessarily led to expense, and therefore it was for the advantage of all parties concerned that it should terminate as soon as possible. He thought the House would agree with Sir John Lawrence, who said it was absurd to suppose that the Government had endeavoured to cause delay for the sake of delay, and not to search for materials which it was very difficult to get together. He hoped there would be more dispatch in the future.


said, he agreed that it was inexpedient to call upon the House to consider questions which were being litigated before judicial tribunals, but would have been glad to have heard from the Attorney General a statement that the rights of the parties in the case would not be withdrawn from judicial investigation, but would be left to the decision of a judicial tribunal without further delay.


said, that the Government did not seek to withdraw the case from the judicial tribunal. The merits of the case depended upon the fact whether it was an act of the State. If so, of course the judicial tribunals had no jurisdiction.


said, if it were an act of the State the Government might say there was no remedy by the ordinary tribunals, but in some recent cases it had been shown that where, by an act of the State, injustice or wrong was done there was a tribunal to which appeal could be made—the House of Commons. In the case of the Nawab of Surat such an appeal was made, and the result was the passing of an Act of Parliament. He admitted that the time had not come to consider the merits of this case, but he hoped one result of the discussion would be to prevent further delays, and to lead to some speedy and satisfactory termination of the suit.


said, that he had been counsel for the plaintiff in the appeal. He would not enter into the merits of the case, as they would probably have to be considered at a future time, when the House would be surprised to learn the remarkable conduct of the Indian Government in connection with a suit in which they were the defendants. He would only venture to hope that the suit might be allowed to proceed without further delays, and that if justice were not done in India the parties would be enabled to obtain it at the hands of that House.