HC Deb 28 February 1867 vol 185 cc1203-10

Order for Second Reading read.


in moving the second reading of this Bill, said, that as there was no notice of opposition from any quarter, he need not make any lengthened state- ment in introducing it. The Bill was rendered necessary by a recent decision of an Election Committee of that House, which had held that by the combined operation of the statute of Queen Anne, and that of 1858, transferring the dominion of India to the Crown, the person holding the office of Standing Counsel to the Secretary of State for India was precluded from sitting in that House. That exclusion did not apply to the Standing Counsel of the Admiralty, inasmuch as the late Mr. Phinn and the late Solicitor General both sat in the House while holding the office; and the present Counsel to the Admiralty (Mr. Huddleston) was then sitting in the House as Member for Canterbury; nor was it understood when the Act of 1858 passed, to apply to the holder of this very office, for its then holder, Mr. Wigram, sat at the time of its passing, and for some time afterwards, as Member for the University of Cambridge; and no one questioned his right to do so, while those who were intended to be excluded—that is, the Members of the Council, were expressly excluded by the Act. This exclusion was therefore at once an accident, and an anachronism. He would not dwell on the legal attainments or literary eminence of the learned Gentleman (Mr. Forsyth) who now held the office, lest he should be suspected of excessive partiality—he would rather rest his advocacy of this measure on the convenience of the House. On Friday last they had a long and interesting discussion on the construction of Indian treaties, and a question was soon to be brought forward respecting the tenure of land in India. These discussions, he believed, would become more frequent as our connection and commercial and social intercourse with India grew, and as the Native Princes came over, as he hoped they would, to this country, for education; and it was extremely desirable that a gentleman who, from his professional practice, must be familiar with the questions that would thus from time to time arise, should be a Member of that House, to supply the special information the House might desire. But he would put it on the still higher ground—advantage to the public service. It was an office the emoluments of which were not large, but which it was very desirable should be filled by a man of ability; and if in addition to the smallness of the salary, they were to say that its holder should be disqualified from that object of honourable ambition, a seat in that House, he was afraid the choice of the Secretary of State for India would be limited to a very narrow range. For these reasons he hoped the House would assent to the second reading of the Bill. The only objection he had ever heard to the measure was that it did not go far enough, and that there were a great many other cases of exclusion which might be properly dealt with. He would admit the force of that argument if the Bill were proposed by the Government, but he had confined himself to such a measure as he thought a private Member could carry; while he admitted there were other disqualifications that ought to be removed, and he would be ready to assist others in removing them.

Motion made, and Question proposed, "That the Bill be now read a second time."—[Mr. Selwyn.)


said, the learned Gentleman who at present filled that office would be an ornament to the House as a lawyer, a scholar, and a gentleman; but he objected to the Bill on principle. The learned Gentleman (Mr. Forsyth) had been returned for the borough of Cambridge; the question arose whether he could sit, and a Committee decided that he was excluded by the statute of Anne (the 6th Anne, c. 7, s. 55) The object of that Act was expressly to exclude persons holding places under the Crown—"placemen"—from the House of Commons. If that statute was not a wise one, repeal it altogether; but he did object to repealing it by piecemeal and in favour of an individual. If the learned Gentleman had a seat in that House, he doubted whether the noble Lord the Secretary of State for India would permit him to open his mouth. The case of the Solicitor to the Admiralty had been referred to; but that gentleman was appointed by the First Lord of the Admiralty, and not directly by the Crown, and when Mr. Wigram, the counsel for the East India Company, sat in the House, that company was distinct from the Crown. He thought it was not desirable to increase the number of placemen in that House, and he therefore moved that the Bill be read a second time this day six months.


seconded the Amendment.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six mouths."—(Mr. Serjeant Gaselee.)

Question proposed, "That the word 'now' stand part of the Question."


said, it seemed that the main objection of the hon. and learned Gentleman who moved the Amendment was not an objection to allowing the Counsel of the Secretary for India to be a Member of that House, but that this measure should be adopted in place of re-considering the statute of Anne, with a view to determining bow many other offices should be relieved from the existing disqualification; and no doubt it might be desirable to consider whether that Act might not be altered so as to enable persons, not under the direct influence of the Crown, to obtain seats in that House. There were two clauses in the statute of Anne of very different and distinct operation, the one requiring persons who took office under the Crown to go back to their constituents, and therefore effect a permanent exclusion from the House of Commons; and the other prescribing that certain offices should be disqualifications altogether from sitting in Parliament. The object of this distinction was to exclude those who were under the direct influence of the Crown; but the office now in question was not one of that description which could be said to place the holder under the direct influence of the Crown. The office of Counsel for the Secretary of State for India was held independently of the Secretary of State for the time being; and therefore not being under the direct influence of the Minister, or of those who exercised the patronage of the Crown, it was not one of those offices to which the argument founded upon the statute of Anne would apply. That being the case, it did not appear to be desirable that they should continue to exclude from a seat in the House a person who might be of great use in its deliberations. The holder of this particular office would have been enabled to sit in the House had not the Government of India been transferred from the Board of Control to the Crown; and yet the Board of Control was as much appointed under the influence of the Crown as the Secretary of State for India. It therefore seemed to him that this particular office was one from which the disqualification might well be removed. The Bill of the hon. and learned Member appeared to be a reasonable measure, and one that would add to the character and influence of the House.


said, it was not the President of the Board of Control who made the appointment to this office before the transfer of India to the Crown, but the Chairman of the East Indian Company, and he apprehended that the Secretary of State for India on entering office might appoint a new Standing Counsel. It was no doubt important to have the best information when they were discussing questions of Indian law or land tenure; but, at the same time, it would be very inconvenient to have the Standing Counsel getting up in the House to answer the Secretary of State, as might very well happen if this measure passed. If Mr. Forsyth were admitted to a seat, although counsel to the Secretary for India, what was to exclude Mr. Greenwood, of the Treasury? The Bill would altogether upset the principle of the statute of Anne; and if that was to be done they had better at once take the whole subject into consideration, and determine what placemen should be permitted to hold seats in the House.


submitted that the argument founded on the statute of Anne did not apply to the case. The real point seemed to him to be this—that it was of the utmost consequence that the India Office, which had to decide upon questions of the most enormous importance, should be able to secure the assistance of the very highest talent in the legal profession. Happily, in the present instance, they had a gentleman of great eminence; but if they laid or continued a penalty on the office, if they shut the door to a distinction which was not only the highest to which an Englishman could aspire, but in the particular instance of the legal profession led to all the highest awards of that profession, he apprehended that men of first-class talent would no longer be willing to accept the office. It seemed to him, therefore, that the balance of advantage lay in the removal of this disqualification, they argument for which rested rather upon old prejudices than on sound reason. He should therefore support the Bill.


objected to the Bill, on the ground that Parliament had formerly found it necessary to limit very narrowly the number of placemen who were allowed to hold seats in the House, and the present Bill was calculated to evade this wise precaution. The question had been deliberately decided when the Government of India was transferred from the Board of Control to a Secretary of State. The measure would, moreover, be attended with practical inconveniense. The Standing Counsel to the India Office was the confidential adviser to the Secretary of State for India; and it would be extremely inconvenient that a Member of the Opposition should hold that office and he in the secrets of the Government for India. Yet this was likely enough to happen if the gentleman who filled that position was suffered to sit in Parliament. The question was one of considerable importance; and, as it had been brought on unexpectedly, he trusted that his hon. Friend would not press it to a division in so thin a House.


in opposition to the hon. and learned Member for the Tower Hamlets (Mr. Ayrton), maintained that there was never any intention to deprive the Standing Counsel to the India Office of the power of a seat in Parliament; that the exclusion had resulted accidentally from the Act of 1859. By that Act it was necessary that, within a few days after its enactment, a list of the establishment should be submitted to Her Majesty, and in that list appeared the officer in question. He (Sir James Fergusson) was a member of the Committee which had had to perform the painful duty of unseating Mr. Forsyth; but they had done so not because the patronage of the office had been transferred to the Crown, which would not have rendered it a new office under the Act of Anne, but because the sanction of the appointment by the Queen in Council, as one of the Establishment of the Secretary of State, had that effect. But there was no ground, in reason or precedent, why the holder of the office should not have a seat; and, indeed, after the transfer of the Government of India to the Crown, the Standing Counsel to the Court of Directors—who was continued in office—was allowed to sit without objection. Mr. Forsyth had been unseated under very peculiar circumstances; for until the petition was presented no person was aware that the learned Counsel was disqualified from sitting in that House by reason of the office he held. ["No, no!"] At all events, his predecessor had sat without objection for the University of Cambridge.


said, that of the five Secretaries of State three were assisted by Standing Counsel. The Standing Counsel to the Secretary of State for the Home Department was not able to sit in that House, and he did not see how the Standing Counsel to the Colonial and Indian Secretaries could have any better claim to sit there. As the course taken by the House on the present occasion would probably form a precedent, he thought it would be better to read the Bill a second time, and then refer the question to a Select Committee for careful consideration.


said, the real question before the House was, whether the Bill before them should be read a second time. His own belief was that had the attention of the House been drawn to the matter at the time the Act creating the office was passed, the Standing Counsel to the Secretary of State for India would have been permitted to sit in Parliament. What was the state of things? For many years before the passing of the Act there had been an office of Counsel to the India Board, and it had never been suggested that the person holding it was incapable of sitting in Parliament. Under the Act the office was retained, and it was now held that persons holding it could not sit. The office was the same, and the functions were the same; and therefore it could not have been the real intention of the Legislature that the holder of the office should be incapacitated from having a seat in that House. Parliament had frequently authorized persons holding office under the Crown to sit in the House of Commons. It must be recollected that the holder of the office in question only advised upon legal and not upon political questions. He hoped that the House would read the Bill a second time.


thought the question of so much importance that the House should not decide hastily upon the matter. In his opinion there were already too many placemen in the House. He moved the adjournment of the debate.


supported the second reading of the Bill, contending that there was no tangible objection to such an officer of the Crown sitting in the House, and that had it had his assistance at the time of the India Bill, he would have been able to have given it much information on the question then before it.

Motion made, and Question put, "That the Debate be now adjourned."—([Mr. White.)

The House divided:—Ayes 34; Noes 58: Majority 24.


said, that he had voted for the adjournment because he thought the question was one of considerable importance and delicacy, and because he thought it would have been better to have the further discussion on the Bill before, instead of after, the second reading. The House, however, having decided otherwise, he would counsel his hon. and learned Friend (Mr. Serjeant Gaselee) not to oppose the second reading any further, but to debate the matter as a constitutional question on the Motion for the Speaker's leaving the Chair.

Question, "That the word 'now' stand part of the Question," put, and agreed to.

Main Question put, and agreed to.

Bill read a second time, and committed for Monday next.