HC Deb 28 June 1877 vol 235 cc416-52

who had a Notice on the Paper to call attention to a Despatch from the Secretary of State for India to the Governor General of March 22nd, 1877; and to move— That in the opinion of this House, the power of the Crown to remove Judges of the High Courts of India who hold their office during Her Majesty's pleasure, ought to be exercised on the same principles as if they held their office during good behaviour and not otherwise, said, the question he had undertaken to bring before the House was of such transcendant importance that he should make no apology to the House for bringing it in at once, omitting the circumstances out of which it arose. The subject itself was quite sufficiently large, and he should not go into the details of the occurrences which gave rise to it. Suffice it then, to say that owing to differences of opinion which had arisen between the Governor General of India and the Supreme Court of the North West Provinces, a reference had been made to the Secretary of State for India, proposing to him certain questions of very momentous importance in regard to the status and position of the Judges in India. On the despatch upon which he founded his observations—which was the last in the Papers, bearing date March 22 of this year, which raised these questions—the Secretary of State for India made what seemed to him a very sensible remark. It was to the effect that the questions submitted to him were merely speculative. They did not arise out of circumstances which had occurred in India, and which he had made the subject of another despatch, and were speculative questions. He thought the Secretary of State for India was right in saying so, and for this reason—the Judges complained of being censured by the Government for certain opinions they had expressed, but these were not judicial opinions. They were not given under the requisite protection for judicial opinion, and were not given after the hearing of both sides. If Judges chose to give opinions without hearing both sides, although their opinions might be very valuable, they were not entitled to that protection which was, and ought to be, thrown over judicial proceedings. But then what surprised one was, that as the matter was, in his opinion, merely speculative, the Secretary of State did not go on to say that as it was only a speculative question he declined to give any opinion upon it. He thought the Secretary of State for India would have taken a wise course if he had said—"The case has not yet arisen; when it does, I shall be prepared to give my opinion, but meantime I decline." How- ever, he took a different course. He se out distinctly what the questions proposed to him were, and he gave an answer to them; and it was those questions and that answer to which he (Mr. Lowe) wished to call the attention of the House. A point more important had seldom arisen before the House than that which arose upon this Correspondence. It was infinitely larger than the Secretary of State or those who advised him seemed to have had any idea of when they entered into the question. The Secretary of State said the questions submitted to him were—(1) Whether the Judges of the High Courts were subject to the authority of the Governor General in Council; (2) whether it was within the province of His Excellency in Council to publicly approve or condemn the action of the Courts in matters which fell clearly within their functions; and (3) whether in India the Courts enjoyed the independent authority and prestige of the English Courts. He could not tell what advice the Secretary of State took in the matter; but he might not unreasonably have said they were questions to be decided not by the Secretary of State, but by high legal and judicial authorities. However, the Secretary of State appeared to have had no misgivings; he launched into the whole subject, and treated it in the most summary and decisive manner. He did not, indeed, answer them categorically; but he went into an argument in which he clearly implied that, in his opinion, the Judges of the High Courts were subject to the Executive authority of the Governor General; that it was right for the Governor General to condemn or approve the action of the Courts in a public manner; and that the Indian High Courts did not enjoy the independent authority and prestige of the English Courts. In short, all three questions were answered in the negative. It might also be here mentioned that the Governor General had also referred certain questions to the Secretary of State; whether he, the Governor General, was not, as the head of the Executive Government in India, responsible for the administration of justice; whether he had not a right to punish the Judges—the Imperial Judges as well as inferior Judges—for any miscarriage of justice, and whether he had not a right to pass public censure on them in regard to the administration of justice if he thought proper. Neither of the despatches noticed the questions of the Governor General at all; and as the Governor General said he would go on doing as before until he was told it was wrong, it might be taken that the questions were answered in the affirmative, just as the other three questions had been answered in the negative. Such was the present state of things. Everything claimed by the Governor General was conceded; everything claimed by the High Courts was repudiated; and all that remained to be seen was the principles and reasons upon which the Secretary of State's decisions was based. The Secretary of State contended that there was a vital difference between the position of Indian and English Judges. The Secretary of State said— Until the Act of Settlement all English Judges held their office, as Indian Judges do now, during Her Majesty's pleasure. When Parliament desired to assure their independence and to withdraw them from the authority of the Executive, it enacted that their commissions should he made 'during good behaviour.' But when Parliament set up the existing High Courts of India in the year 1861, it did not think fit to adopt towards them the same policy which had been adopted and maintained towards the Courts in England. On the contrary, it was specially enacted that the Judges in all the Courts established under the Act of 1861 should 'hold their offices during Her Majesty's pleasure.' It appears to Her Majesty's Government impossible to treat this difference, deliberately established between the Indian and the English Courts, as accidental and inoperative. In withholding from the Indian Judges the independence of the Executive, which had been on a solemn occasion formally conferred upon the English Judges, Parliament must be taken to have fully intended the consequences of the important distinction which it was sanctioning. The right to dismiss any person holding an office carries necessarily with it a right to indicate the conduct which may, if persisted in, incur dismissal. In other words, it involves the right to approve or condemn the action of the officer who is so liable to be dismissed…This appears to me to be in strict right the relation subsisting between your Government and the Judges in India. But it is not necessary for me to state to you that, as a matter of policy, any Executive action trenching on the independence of Judges in the exercise of their purely judicial functions, could only be justified by reasons of extreme necessity."—[East India (Mr. Fuller and Mr. Leeds) Parl. p. 173. 1877.] In other words, the Secretary of State for India was distinctly of opinion that Judges in India were dependent on the Executive, and did not enjoy independence; that it was lawful for the Go- vernor General to threaten those Judges, to point out things for which he might be induced to discharge them; and that, as a matter of right, he might interfere with them in the exercise of their purely judicial functions, though, as a matter of policy, it might not be advisable to do so, except in extreme cases. Anything more important or momentous could hardly be imagined. He would endeavour to combat as well as he could those statements, and show that they were utterly groundless and fallacious. In the first place, the conclusion was not established by the premisses. The conclusion was, that the Governor General had a right to interfere in the administration of justice—that it was dependent on him, and that he had the power of lecturing the Judges publicly or privately. That, he apprehended, must from the nature of the case be a mistake, and for this reason. The Prerogative of dismissing Judges rested with the Queen, during whose pleasure they held office. But, as the House knew, Her Majesty did not exercise this or any other power, except on the advice of a responsible Minister. Now, who was the responsible Minister in the present case? Not the Governor General of India, who was a mere deputy holding delegated powers, but the Secretary of State for India. So that Lord Salisbury's argument amounted to this—that because the Queen, by the advice of the Secretary of State for India, could remove an Indian Judge, therefore the Governor General, who had no power to advise Her Majesty on the subject, should have all the power implied by the words that the Courts of India were dependent upon the Executive. It was manifest that the difference between a Minister who was responsible for the act of the Crown, and a person who acted as a deputy of the Crown with delegated powers had been overlooked, and that the authority claimed for the Governor General ought only to be exercised by the Secretary of State in Council. Therefore, accepting all Lord Salisbury's premisses, the conclusion to be drawn from them was that the Governor General had none of the powers attributed to him. But that was a very small part of the case. This matter was argued by the Secretary of State entirely on the ground of the tenure of office—solely as a question of tenure. It was said that "until the Act of Settlement, all English Judges held their office as the Judges in India do now, during Her Majesty's pleasure." That statement was entirely inaccurate. It was a matter of dispute amongst antiquaries, whether from the earliest times our Judges did not hold their office during good behaviour. Hallam, Coke, and others might be cited as authorities on this point. The Act which gave the Judges their present status was the Act 12 & 13 Will. III. During the whole reign of William the Judges held during good behaviour. In such an important document, it was extraordinary that trouble had not been taken to ascertain the ordinary details relating to the question. Assuming that the Judges held office during the pleasure of the Crown, and not—as those in England virtually did—during the pleasure of Parliament, did that fact really entail all the consequences which it seemed to be supposed resulted from it? If not, there was nothing to be said. It was a purely metaphysical statement, drawn from some abstract opinion, and might have been written of some country which had no history at all. This was not a metaphysical question, to be dealt with by clever dialecticians. It was not a question merely as to the meaning of a form of words. The answer to it must be gathered from the course of English history. The notion that Judges who hold office during the pleasure of the Crown, and were by virtue of that tenure placed at the disposal of the Executive, and exercised as such no freedom in administering justice, was an absolute figment, and had no foundation in history. If the House looked carefully into the matter, they would find that it did not turn at all on the question of tenure. In fact, the question of tenure had been so little regarded, that we did not know what had been the tenure in the case of our early Judges; and it mattered not really what it was, because whether they held from the Crown or during good behaviour, the Crown being the Judges as to good behaviour, it came very nearly to the same thing. The important point was—who had the power to turn out the Judge; and the real security which our Judges enjoyed was not to be found in the words "during good behaviour," but in the fact that they could only be turned out with the consent of the two Houses of Parliament. In the olden times—which it might seem pedantic to refer to, but the due consideration of the question made it necessary—the thing which was looked to as the security of the integrity of the Judges was not at all the tenure, of which, as he had said, there was no trace whatever, but was the Judge's oath. The oath was this— That he will serve the King and indifferently administer justice to all men, without respect of persons; take no bribe, give no counsel where he is a party; nor deny right to any, though the King, by his letter or by express words, command the contrary; and he is answerable in body, lands, and goods. Again and again, in arbitrary times, when the Judges resisted the importunities of the Executive, their answer was, not that their tenure was so and so, but that their oath bound them. The first case he would allude to was that of Chief Justice Hussey, in the reign of Henry VII.—one of the most arbitrary Princes who ever sat on the Throne of England. Chief Justice Hussey besought Henry VII.— That he would not desire to know their opinions beforehand for Humfrey Stafford, for they thought it should come before them in the King's Bench judicially, and then they would do that which of right they ought; and the King accepted of it. The next case he would cite was still more remarkable, for there they found the Judges discharging the duties of the House of Commons, rather than acting as the passive slaves of the Crown. In the reign of Queen Elizabeth the Judges prayed for an audience of the Queen, and having obtained it, took the liberty of admonishing her with reference to the committal or detention of persons, by the command of Nobles or Counsellors, against the law of the Realm. It did not appear that the Queen was at all displeased with their conduct. Then, in the Case of Commendams, it appeared that the King—one of the Stuarts—signified to Chief Justice Coke, through the Attorney General, that he would not have the Court proceed to judgment till he had spoken with them. The Judges certified to His Majesty that they were bound by their oaths not to regard any letters that might come to them contrary to law, but to do the law notwithstanding; that they held with one consent the Attorney's letter to be contrary to law, and such as they could not yield to, and that they had proceeded according to their oaths to argue the cause. Those were Judges who probably held during the pleasure of the Grown. By the arbitrary Act of James I. Coke was dismissed for his resistance. No doubt terror was practised by the Stuarts, more or less, upon the Judges, and they were made to do things which were quite contrary to their oaths and to their sense of duty; but though these things were done, they were never done as a right, and were never justified. No one was ever bold enough to say that the tenure by which the Judges held office gave the King the right to direct them in their duty. Falkland—who shed his blood in the cause of the Stuarts—said in the course of a speech in the House of Commons, at the time of the Long Parliament, referring to Queen Elizabeth— The Queen, in the 29th year of her reign, erects a new office in the Common Pleas, and grants it to her servant Richard Cavendish. She sends to have him admitted. Four preremptory letters the Judges refuse, on the ground that the place belongs to others. At last they write that the Queen had taken her oath for the execution of justice according to law, that they did not doubt that when Her Majesty was informed that it was against law she would do what befitted her. For their parts, they had taken an oath to God, to her, and to the commonwealth, and if they should do it without process of law before them, and only upon her command put the other out of possession, though the right remained, it were a breach of their oaths; and, therefore, if the fear of God were not sufficient, they told her the punishment that was inflicted on their predecessors for the breach of their oaths in the time of Richard II. might be sufficient warning to them. The Queen, hearing these reasons, was satisfied, and the Judges heard no more of the business. Looking at these cases, and taking into account not the tenure merely, but all the concomitant history, it would be seen how little foundation there was for the arguments which had been used for the purpose of establishing in India a dangerous doctrine which would place the judicial administration under the heel of the Government. There was a passage which he would read from Lord Clarendon, which showed what was expected of the Judges at the time when the question of Ship Money was brought before them, and it was all the more remarkable, because it was written by one who was inclined to make as little as possible of such a matter. He said that the people did not so much care what was done as to benevolences and Ship Money or anything else, for that it pleased them to give their money to the King; but that they drew a great distinction between the King and the Judges, and that they did not consider the Judges were covered by the authority of the King. Lord Clarendon added— The danger and mischief cannot be expressed that the Crown and State sustained by the deserved reproach and infamy that attended the Judges being made use of in this and the like arts of power, there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves but by the integrity and innocency of the Judges."—[Bk. I. p. 70.] They at that time felt that the Judges were bound, just as much as we considered our Judges to be in more favourable circumstances now, to administer justice with impartiality, and the passages which he had quoted fairly showed, he thought, that the tenure on which the whole of the argument of those who took the opposite view of the question was based had nothing to do with it; and that, in accordance with the Constitution of England, it had always been held that whether a Judge held during pleasure or not, he was bound by the oath which he had taken, and liable to the most severe punishment for its infringement. In the reign of Richard II. Chief Justice Tresillian had been hanged because he had given an extra-judicial opinion at Nottingham to the King. No doubt that was an act of revolutionary violence, but what was remarkable was the ground they chose to justify their deed. There had always been respect in this country for the judicial office, and it was held that it should be independent and free, until this ground had been taken up at the present advanced period of the world. Before he closed that part of his argument he might observe that Lord Clarendon, in one of his speeches said, that the Twelve Judges were "like the support of the throne of Solomon—under the throne in obedience, but yet lions." There were many hon. Gentlemen now in the House when the present Act for creating judges in India was passed, and he felt quite sure that if the point now at issue had at the time been raised in any way, the doctrine which was set up would have met with a most indignant negative. But it was said that Parliament meant to make the Indian Courts dependent on, and subject to, the authority of the Executive. Now, the only reason in favour of that view was the preservation of a tenure which he had shown to be consistent with the noblest ideas of judicial independence. But here he touched on firmer ground and escaped from metaphysics. The Commission which framed the present law never meant anything such as that for which the Government now contended. Their object was to get rid of the Sudder Court, which was an Oriental Court, and to establish a High Court much after the model of our English Courts. Under the direction of the late Master of the Rolls (Lord Romilly), Chief Justice Jervis, and many other eminent men, it was intended that the Judges should be treated all alike; and he, as a witness, could state with the greatest confidence that it never entered the minds of the Commission to found a Court which could in any way be placed under the authority of the Executive or subjected to the indignity contemplated by the despatches before the House. But it was contended that the Judges, because removable at the will of the Crown, were under the control of the Crown. But if that were so, what was to become of the Lord Chancellor? We were in the habit of looking at the Lord Chancellor as the highest of our Judges, yet he had always held office at the pleasure of the Crown. Was it, therefore, to be supposed that he was less independent than any of the other Judges, or that Her Majesty had any right to interfere with him in the administration of justice? But let him go a little further: The case of the Colonial Judges under Burke's Act was in point. Almost all the Colonial Judges at the time when he himself was in Australia held their offices during the pleasure of the Crown. Yet he ventured to say that in no respect were they regarded as being less independent than the Judges in Westminster Hall. Now, if the tenure of the Colonial Judges did not deprive them of independence, why should it be held to deprive the Judges in India? If the doctrines which he had laid down were challenged, then, the same thing must be upheld in the Colonies as in that country. Were the Government prepared for that? Was there, he would ask, anything ever done so rash and inconsiderate as to raise a question of enormous magnitude on account of a trifling squabble in a police-office court, and to take a step which ought not to be taken except on the fullest information and after the most mature consideration? No such right as that which was now contended for on the part of the Government had, he maintained, ever before been claimed by an English Executive. There was, in reality, no right to dismiss. There was a power to dismiss which, like all powers conferred by the law, must be exercised within the duty of the person exercising it and with reference to the purposes for which the power was given. Such a power would confer no right to interfere with the administration of justice. The Queen could do nothing wrong; but did that imply that a wrong would not be done if a murder were committed by the Sovereign? It implied, he contended, an absolute insult to Royalty when it was maintained that such was the absolute power of Her Majesty over the Judges that she might exercise any influence she pleased in the administration of justice. The right course for persons clothed with the power of dismissal to pursue was to guide themselves in all respects by the practice of Parliament; and if the independence of the Judges was good for England and the Colonies, why should it be an evil to India? One of the very first principles of good government was the separation of the judicial and the Executive power, and any attempt to confuse the two together was an attempt to go back to the worst and lowest periods of our history. It was said, however, that the Executive had the right to interfere. In the beginning of the last century, Holt, then Lord Chief Justice, gave a decision adverse to the decision of the House of Lords in the case of "Ashley and White." But when the House of Lords called him before it for having delivered a judgment by which he set aside the jurisdiction of the House, Lord Chief Justice Holt said— I hold an authority independent of yours. I gave my reasons for the judgment in that place in which I had sworn to administer justice. By the House of Lords I look to be protected and not to be arraigned, and I will not assign the reasons on which I founded my judgment. He did not think that the power to dis- miss a Judge gave any right to approve or condemn his conduct. In 1834 Mr. O'Connell moved for a Committee to inquire into the conduct of Baron Smith, for the purpose of his removal from the Bench, and the Government of the day agreed to support the proposal on the condition that that part of the Motion which related to the dismissal of the Baron should be dropped. In the debate which took place on the subject, the late Sir Robert Peel said, that— If—on light and frivolous complaints, nay, on plausible allegations of inadvertency or error—Select Committees of the House of Commons are to be appointed for the purpose of examining into the conduct of the Judges, or if those Judges may be dragged before such tribunals, you may fill your Statute Book with laws professing to secure their, independence, but their independence is a hollow and a miserable phantom…You must feel and know that the authority of the Judge is extinguished the moment that he is summoned before you as a suspected and accused Minister of Justice; not only is his individual character gone, but the blow you aim at him strikes at the independence and authority of the judicial station."—[3 Hansard, xxi. 304–6.] But, notwithstanding that eloquent appeal, the Motion was agreed to. Only a week intervened, however, before the feeling became so strong that the Opposition moved to rescind the vote. Sir James Scarlett, a leading authority, said— If the Motion were carried, all the Judges in Ireland must lose their confidence; and if they had any independence, they would all resign."—[Ibid. 318.] Mr. Shaw also expressed the matter extremely well on the 21st of February when he said— If the conduct of a Judge could be inquired into with any other view than to address the Crown for his removal, then he would say that the independence of the Judicial Bench was a mockery; and the statute of George III. was no better than waste paper.…A primü facie case sufficient to justify the removal of Baron Smith from the Bench ought to be made out before the House could proceed with the inquiry."—[Ibid. 713.] Sir Robert Peel spoke again, being even more eloquent than he was on a former occasion— He denied the wisdom—the prudence—the justice—of arraigning a Judge, unless upon some charge of personal corruption—of gross and grievous neglect of duty, warranting his removal from the Bench.…They had not grounds to address the Crown for his removal. Was it fitting that they should attach a label of partial infamy round the neck of this high officer of justice, and then send him to administer the law to others?…If they felt in their heart and conscience that he must still continue in the administration of the trust—was it not for the public interest that he should stand erect, not only in the consciousness of innocence, but in the possession of the public esteem and respect? To appoint a Committee was evading the law …because if the Judge was a man of honour, and if the House implied the slightest censure against him, his own sense of propriety would tell him that he could no longer remain effective as a Judge."—[Ibid. 744.] These were the feelings of English statesmen 40 years ago; but we had fallen very far from that language when a Secretary of State could screw himself up to say that he had a perfect right to interfere with the administration of justice, and to indicate the grounds on which he would dismiss a Judge, although he confessed that as a matter of policy he had better not trench on the administration of justice except in very extreme cases. There was a statute called Burke's Act, passed in 1782, by which Colonial Governors were empowered to remove Judges, the latter being allowed an appeal to the Queen in Council. India was not included in that statute, solely because it was not one of the plantations or settlements of the Crown at the time. Could it be argued that, because merely by that accident India was not included, her Judges were to be placed in the position of being liable to removal at the arbitrary will of the Governor General? We had chosen to assume the enormous trust of the government of India. We could not give the Natives self-government; but though we were compelled to govern them by arbitrary power, we might give them what was the greatest check against arbitrary power—namely, a pure and independent administration of justice. It was impossible to maintain the position which had been taken up in regard to this matter. There was only one mode of getting free of the question—namely, by placing the Indian Judges in some way or another at least upon a level with the Judges in our Colonies, so that they could not be moved without having the power of appealing to Her Majesty in Council, and to retract the argument that because these Judges held their positions during the pleasure of the Crown, therefore the Governor General, who was the deputy of the Crown, should have the power of controlling and removing them. He had brought this subject forward, not in the least with a view of making an attack on the Government or on his noble Friend the Secretary of State, but because he was overwhelmed and crushed by the magnitude of the question, which had been so lightly and inconsiderately raised, and, in his opinion, so improperly decided.


said, although he was not able to follow the constitutional arguments of the right hon. Gentleman (Mr. Lowe), yet, as he had been a Judge of the High Court for some years, and had also governed a province in India, he might be permitted to state his experience with regard to the question before the House. The real point involved was that, not of turning out Judges, but of criticising their conduct. In India we had adopted a despotic government, but we might check the exercise of despotic power by setting up a tribunal which should be above the Government, and which should do justice to the people of India. Such a tribunal was set up in the last century, and was called the Supreme Court. It soon became apparent that a very high view of its judicial functions could not be maintained. A scandal arose, and it was found necessary to clip its wings, and, as a matter of fact, its power was reduced to very narrow limits. Its jurisdiction was made a personal jurisdiction of a very limited character, and it was expressly precluded by Parliament from interfering in any manner concerning the revenue of India. That, then, was a Court confined within very strict limits in its jurisdiction. But side by side with it there existed a much greater Court, with wider functions, the jurisdiction of which extended over all India—a Court which was independent of the Government, according to the system established by Warren Hastings and Lord Cornwallis, while the Sudder Courts were appointed by the Government, and exercised their functions under its control. He might compare its position to that of the English Lord Chancellor, who did not hold office by a tenour independent of the Government, but who at the same time exercised his judicial functions without any reference to the Ministry. A few years ago it was thought proper to combine the two Courts, and to form a single Court which should unite the functions of both. The Legislature considered that it would be quite impossible to give it a position so entirely independent as that of the Supreme Court; and, when that Court was constituted, claimed for itself several very large powers of control which it had not before possessed. There was, for instance, a complete power of legislating for the High Court, the Judges of which, unlike those of the Supreme Court, were in many ways under the control of the Government, though they enjoyed much judicial independence. The result of his experience, after seeing both sides of the shield, was that their position was well understood, and that there was no imputation on their independence as Judges, though they might be liable to removal as officials. They were in no respects open to suspicion, and if they ever displayed any bias in a case in which the Crown was involved, it was almost invariably against the Government. That being their position, it was only natural that from their very independence errors would sometimes occur, or even scandals. But their jurisdiction was limited and checked in various ways. There was an almost unbounded power of appeal, and facilities not only for reviewing judgments, but even for new legislation to an extent unknown in this country. Under their peculiar circumstances, if once it were known that there was a power wholly independent of the Government, it would be necessary to double the Army. A great part of our dominion in India depended on what was called our prestige—that was, a belief in the irresistible power of the Government. It was necessary, if India was to be well administered, that the Natives should be impressed by contact with a solid and uncontrollable power, and therefore no Courts of Law could be wholly independent of the Government. No doubt, it was not likely that Judges would ever have to be actually removed for misbehaviour, but the Government could not do without the power of doing so if necessary. That was a matter of theory, but in that case the Secretary of State was justified in saying that a Judge's conduct might be criticized as though he were an English Judge. But the real question was whether criticizm, was to be confined to extra-judicial acts or not. He was very ready to accept the view that the judicial acts of the Judges ought to be independent of the Government; but he was inclined to believe it desirable that a distinction should be drawn between judicial and extrajudicial acts. His own opinion agreed very much with the view expressed by Sir Erskine Perry in Council when he said that the real question was not whether the Government had a right to censure the decision of the Supreme Court of Justice or to punish inferior Judges for judicial indiscretions, but whether the Government had displayed a wise discretion, and whether they had treated Mr. Leeds, the magistrate, with justice. That view appeared to him not inconsistent with the principle laid down by the Secretary of State, that the Executive, in trenching on the domain of the Judges in the exercise of their judicial functions, could only be justified by extreme necessity. Although the right hon. Gentleman who had brought this subject before the House had not gone into the details of the Fuller case, yet, as that case had given rise to this discussion, it was right to touch upon it. He wished to apply to the Fuller case the principle he had laid down—that, though the ultimate power must lie with the Executive, that power should not be exercised except in cases of extreme necessity. In his opinion the Fuller case was not such a case. The action of the Government had been to force the magistrates to deal with a certain class of cases in a particular way, in some respect contrary to the opinion of the High Court, and he thought they had improperly censured the High Court. The ground on which the Government founded the necessity for interference was that this was not an isolated case, but one of several in which very insufficient sentences had been passed. He believed that was so, and that there was occasion for a remedy. But the proper remedy was not to censure the Judges, but to amend the law. According to the penal code of India at present, if one man struck another with the intention of killing him it was homicide, but if he had no such intention, even if death should result it was not homicide. This was a case in which it was perfectly certain there was no intention of killing, and therefore, according to the law, the offence was not homicide. He believed the law was bad, because the fear that a blow might lead to homicide prevented many homicides. It was not the fault of the magistrates that they were obliged to follow it. But there was a great difficulty when we came to deal with European British subjects, who up to 1872, when an Act was passed in which he had a considerable share, were a privileged class above the law. Having had until lately the privileges of a superior conquering race, now that they were subjected to the law we must be very careful that the law was not strained to punish them; for, after all, there was a very strong public opinion in India brought to bear upon magistrates, who must not be forced to strain the law. It was said by the Government that if there was any doubt about the Fuller case the magistrate ought to have sent it to a higher Court. But, having great experience in such matters, he must say that was not the practice in India. The practice was that a man was not to be committed to a higher Court for trial unless the magistrate was satisfied there was evidence to convict him. In this case there was no such evidence, and therefore he thought the magistrate was right in the conclusion he had come to. There was a strong feeling in India that it was necessary to restrain Europeans from violence against the Natives, and therefore it should be made clear that no such violence would be permitted. At the same time, he would say that it was a great injustice to the administrators of the law, to the Government, and to the Civil Service of India, high and low, to suppose that there was any disposition on their part to ill-use the Natives. They had, on the other hand, a most earnest desire to protect the Natives, and any allegation to the contrary was a most unfair accusation, not justified by the facts. In this case, however, the magistrate might have failed to award adequate punishment to the offender; it certainly could not be said that he had been actuated by any unfair prejudice in favour of a European British subject. In fact, Mr. Fuller was not a European; he was what was generally called an East Indian. He was glad to observe that since the visit of the Prince of Wales to India there was an increased disposition to treat the Natives kindly, and he hoped that would continue to be the case; but in doing justice to the Natives they must be careful to do justice to their own servants, who were administering the government of a great Dependency far away and under great difficulties. They ought to be treated fairly and considerately in a case like this; where the law was doubtful it should be made clear, and any failure in administration ought not to be attributed to any real misconduct on the part of the magistrate.


strongly sympathized with the Secretary of State for India, and if this Motion were pressed to a division he should support his policy; but, as the right hon. Gentleman (Mr. Lowe) had distinctly impugned the conduct of the Secretary of State, it seemed without precedent that no reply should be given to the two important speeches which had just been delivered. He could not take on himself the responsibility of defending the Government; but he appealed to the Treasury Bench, in justice to the House and to India, to say what they had to allege by way of defending the policy of the Secretary of State. If that were not done, the impression that would be produced in India would be that the Government had absolutely nothing to say in defence of his policy. A more clear, distinct, concise, and emphatic declaration of policy than that contained in the despatch alluded to had never been published in a Parliamentary Blue Book; and it was due to the importance of the subject that some defence should be made from the Treasury Bench of the policy which had been impugned.


said, he had certainly intended, with the permission of the House, to offer some remarks on this subject; but he thought it would have been better if some of the other Gentlemen who were going to speak had preceded him. The right hon. Gentleman (Mr. Lowe) had drawn the attention of the House to much antiquarian and interesting matter; but he would have been wiser to have applied himself to the question before the House, which related to an actual case of recent date, to which attention was first drawn by the Indian Press. He (the Solicitor General) understood that one reason for Mr. Leeds's judgment was, among other things, that Fuller was not a European, and that it was very improbable that a European would so behave. [Sir GEORGE CAMPBELL said, he was an East Indian of European extraction.] The case was brought before the magistrate on the allegation that Puller had caused the death of his servant by an act of unlawful violence. Fuller was waiting for his carriage, being about to go to church on Sunday, and on his servant for whom he was waiting coming up he inflicted the violence. The servant almost immediately afterwards fell to the ground and died. That was the state of the facts when the case came before Mr. Leeds. On the inquiry four witnesses were examined. Three of them stated that they saw Mr. Fuller kick the deceased in the stomach, and it was proved that death resulted from rupture of the spleen. One witness—the coachman—did not contradict the evidence of the other three, but stated that he had not seen Mr. Fuller kick the deceased. It was true, as the hon. Member (Sir George Campbell) had said, the Indian penal code did not determine the degree of criminality to be greater in the case of the death of an assaulted person than a mere assault, if there was no intention to kill, and Mr. Leeds treated this as a common assault. And now what was the error of Mr. Leeds? He took on himself to decide that the true character of the offence was simply a pulling of the hair and the striking a slight blow, and that therefore he was entitled, according to the Indian penal code, to disregard the fact of death. He made two mistakes. In the first place, he seemed to have assumed, what was contrary to all rules of evidence, that the fact that one witness out of four did not see what the other three independent witnesses had deposed to necessarily derogated from their evidence; and, in the second place, whether this was a serious case of manslaughter, or only an ordinary common assault, ought not to have been decided by himself. Mr. Leeds should have remitted the case to a superior tribunal, where it would have been decided by a Judge and jury. A similar question might arise before any stipendiary magistrate in London in the event of a charge of wounding being brought before him. Suppose in such a case, where four witnesses had sworn that they had seen a knife in the hands of the accused and had heard him use threats towards the injured party, the magistrate took upon himself to decide the question and to treat it as a common assault, punishable with a small fine. If the magistrate took such a course he would very properly receive a rebuke from the Secretary of State; and yet it was said that by administering a similar rebuke in India there had been an invasion of the jurisdiction and of the independence of the Indian Courts of Justice. If the view which some persons had taken of this matter were correct, every magistrate would be placed upon exactly the same footing as the Lord Chief Justice of England. No such position of independence occupied by a magistrate was recognized by either the law or the practice of this country. The independence referred to by the right hon. Member for the University of London was confined to certain great officers who were entrusted with the performance of particular functions. Turning to what had subsequently happened in this matter, it was clear that Mr. Leeds had made a great mistake. That gentleman had made the excuse that he believed it to be primâ facie improbable that a European would kick his servant in the way described. If they were dealing with probabilities, for his own part he should have thought it highly improbable that a European gentleman would pull his servant's hair or strike him on the head, and therefore he was unable to appreciate the subtle distinction which had been drawn between probabilities in the case of Mr. Leeds. Then, again, Mr. Leeds said that there were no external marks of violence on the deceased. It was, however, alleged that the cause of death was a kick on the stomach, causing rupture of the spleen. Now, a kick on the soft part of the stomach would most likely leave no marks of external violence, and therefore the reasoning of Mr. Leeds was open to considerable objection. He did not desire to be too hard on that gentleman's reasons for the decision at which he had arrived; but it appeared to him that in a case of alleged violence to a Native by a European, it became of the utmost importance that the Government of a country like India should teach the subject-races that those who occupied the superior position and possessed the education of Europeans were not allowed to abuse those advantages by behaving tyrannically to the Natives, and they would have been neglecting their duty if they had not by every means in their power sought to enforce that principle. What did the Government of India do? They called the attention of the High Court to the circumstances of the case. And here he wished to point out that the strangest misapprehension as to what they had done had arisen. The High Court, besides its judicial functions, exercised functions of superintendence over inferior tribunals of an Executive character, and the appeal made by the Government to the High Court involved the exercise of the latter to the entire exclusion of the former. Much misapprehension had arisen in consequence of these two distinct functions of the High Court being confused together. It seemed to be thought that all that the High Court had power to do was to have brought up the case to their own Court, and there to have increased the sentence, which they could only have done upon the hypothesis that the offence charged was of a graver character than that of an assault. The complaint made was not that the sentence passed was too light, but that Mr. Leeds, instead of doing what he ought to have done and remitting the case to a higher tribunal, had improperly taken upon himself to adjudicate upon it. It was this conduct on the part of Mr. Leeds that had led the Government to appeal to the Executive functions of the High Court. Those functions, which they had derived from the old Sudder Court, had cast upon them the duty of rebuking and of calling in question the conduct of the magistrates and of the other judicial functionaries throughout India; and, therefore, it was their duty in the case now under the notice of the House to have rebuked Mr. Leeds for his conduct in taking upon himself to determine a matter which he should have remitted to a higher tribunal for decision. It was the failure of the High Court to take that step and to exercise its Executive functions in this respect that had led to the Governor General of India calling their attention to the matter. To this communication from the Governor General, the High Court returned the somewhat curt answer, that in their view there was nothing in the sentence that had been passed to call for particular observation. But that was not the question which was raised by the Governor General. The High Court appeared throughout this discussion to have assumed that there was only one course open to them in the matter, and that was to treat the case as if it had been brought before them on appeal. It was a mistake to assume that that position had ever been taken by the Governor General. The point raised by the Governor General throughout had been, that the conduct of Mr. Leeds had been such as to warrant the Natives in thinking that, as the accused was a European, Mr. Leeds had chosen to treat it as a trumpery assault, when, if the case made out by the evidence of four witnesses was to be accepted as accurate, it was one of a somewhat bad manslaughter; the only ground for disbelieving their evidence being—first, that one witness did not see what they stated occurred; and, secondly, the probabilities of the case. It was a great pity that this controversy had ever arisen. But it was a controversy which had been rashly invoked by the High Court themselves, in consequence of their declining to exercise their functions of superintendence over an inferior tribunal, and of claiming for themselves absolute independence, not as regarded the exercise of their judicial functions, but of that of their Executive functions; and their doing so had given rise to this dispute, which both he and the Secretary of State for India deeply lamented should have arisen. It was necessary for the Secretary of State for India either to admit, or deny this claim, and he was quite justified in assuming the right to criticize, and even, if necessary, to censure the conduct of these judicial authorities. Without undervaluing the authority of the right hon. Gentleman, he must frankly say that he could not concur in the opinion he had expressed. What was really the matter to be discussed was the Act of 1861, which made the tenure of the Judges of India "during the pleasure of the Crown." Those words were not used unadvisedly. Now, if any question arose as to any judicial or other office, the first question put by a lawyer was whether it was held during pleasure, or during good behaviour. It was enough to say that it was the deliberate view and intention of Parliament that the Judges in India should hold their offices during pleasure. But so far from accepting this position, the Judges of the High Court claimed to be in exactly the same position as the Judges in England. That being so, what was the principle on which the policy or impolicy of such a system ought to be decided? It would be admitted that it might be unadvisable to make the Judges of some of our Colonial dependencies perfectly independent. Even at home some checks had been found necessary; and in 1861, an Act had been passed to take away the independence of coroners, and to make them responsible to the Lord Chancellor for the time being. Who were the Judges of the High Court? What functions did they exercise? And how were they to be made responsible? He submitted that, as a matter of fact, they were under the jurisdiction of the Executive Government, and that, as a matter of policy, they ought so to be. Was it without meaning that they held office during pleasure, according to the recommendation of the Commission, and that the Governor General was entitled to remove them, subject to the pleasure of the Crown? The right hon. Gentleman would not contest that they were liable to be removed. They presided over Courts under circumstances where they were liable to no other check than that of the Executive Government. Every act done by that Government and by the Secretary of State for India was subject to the review of Parliament, and to the action of public opinion at home. The High Court had jurisdiction over 30,000,000 of people. It was composed of five members, only two of whom had received a legal education. It had a Bar of 10 persons practising before it. There was only one newspaper published there, and no considerable European population existed. For such a body to claim to be absolutely independent of all check and control was claiming more than the Judges at home, because in this country, where all manner of checks existed, the Judges were responsible to Parliament, and might be removed on the Address of both Houses. In India the Legislative Council was prohibited from discussing anything but a Bill that was before it; and the only way in which this question could have been raised in the Council would have been by a Bill for the removal of the Judge. The Council was not like the House of Commons, which could discuss all topics of interest to the public, and there was no other institution to act as a check upon the most absolute tyranny practised by persons in the position of Judges. When the question was put and the Government was invited to express its opinion whether these Judges were as independent as the Judges in this country, or rather more so, it became necessary, as a matter of policy, to consider what position they held. Here we had the Press and the Bar; no one could over-value the benefit which accrued to the State from the active and vigilant observance of the conduct of the Judges by a Bar able and willing to make any complaint against misconduct or oppression; and the Press gave publicity to all judicial proceedings in every kind of Court. What a contrast between India and this country! And yet it was proposed to give the High Court of India an independence which was not enjoyed by any Judge in this country. The Privy Council took no cognizance of Indian criminal cases, and with no Bar, no Press, and no European public opinion within hundreds of miles, these Indian Judges, freed from responsibility, owing no obedience, and resenting anything like criticism on their conduct, would enjoy an absolute independence which would not be conducive to the interests of India, and would encourage the Natives to believe that our one object in being there was simply to get all we could. He was not suggesting that any one of these Judges had been guilty of misconduct; but it was known as a fact that in the administration of justice Judges had been known to say that they would not believe the oath of a Native, and one Judge had been heard to use words which, if not at once checked by the Executive, would have thrown India into a blaze of revolution; and was it to be allowed that, in such a condition of things the Judges were to be allowed to exercise a jurisdiction subject to no check whatever? He regretted that the question should have been challenged at all; but when the question was raised and the Governor General and the Secretary of State were asked—"Do you concede to us that we are absolutely independent and are entitled not to be criticized by the proper Executive authorities?" only one answer could have been returned—namely, that they must be subject to the criticism of the Executive, for there was no other; but that they might rely upon its not being exercised rashly, or inconsiderately, espe- cially as it would itself be exercised under the supervision of the British Parliament, and if anything improper or oppressive was done a remedy could easily be found in the censure of the Minister.


said, he agreed with the hon. and learned Gentleman in feeling deep sympathy with the Governor General of India and the Secretary of State in their endeavours to secure full justice to the Natives. There were portions of the Minute of the Governor General claiming full justice for the Natives of India, in which every Englishman would fully and entirely concur. So far as the policy pursued with regard to the magistrate who had tried this particular case was concerned, he (Sir Henry James) took no exception to what had fallen from the Solicitor General. He admitted that the Governor General was entitled to criticize the conduct of Members of the Supreme Court, though whether that would be an Executive or a judicial function might be open to doubt. Lords Salisbury and Lytton regarded it as Executive; but, supposing it to be judicial, the most that could be said would be that the two had been confounded, and the matter would not call for discussion, because no one would censure a Minister for such a mistake. Having, in his first despatch, approved the policy of Lord Lytton in the Fuller and Leeds cases, in the second, Lord Salisbury proceeded to answer the demand made upon him to define the position of the members of the Supreme Court. In this purely speculative despatch he laid down what was the position of the Judges in relation, not only to this case, but also to all others; and it was to the principle embodied in the despatch that he took exception. The hon. and learned Gentleman had not dealt with this despatch, to which the terms of the Motion were directed. The definition that was given affected not only Judges in India, but every Judge that held office at the will of the Crown, for the same words in an Act of Parliament could not have a different meaning in different Colonies; and, if the definition given were correct, it would be binding upon every Governor in every Colony and dependency where there were Judges holding office at the will of the Crown, and would justify each Governor in acting according to his own discretion. It was this that made the question so serious. If the House of Commons thought it right to say, that which his hon. and learned Friend had not ventured to say—namely, that they agreed with Lord Salisbury—of course the responsibility would rest with them; but he trusted that either from the Secretary of State himself, or some other Member of the Government, there would come an acknowledgment that the terms of that despatch could not be supported. Of course, if a Judge flagrantly misconducted himself, or was manifestly unfit for office, he ought to be removed; but the position taken up by Lord Salisbury appeared to him to be unconstitutional, in as much as he claimed the right for the Executive Government to interfere with the Judges in the exercise of their purely judicial functions, though he limited that interference to extreme cases. In so speaking of Lord Salisbury's despatch, he (Sir Henry James) was not carping at words, but merely reproducing the sense of a passage which could not be explained away. In the same despatch Lord Salisbury declared that the right to dismiss any person holding office carried with it the right to indicate conduct which might, if persisted in, incur dismissal, or, in other words, the right to approve or condemn the action of the officer who was liable to be dismissed. Now, he (Sir Henry James), whilst admitting the full right of the Executive to dismiss a Judge for misconduct or unfitness, protested against the proposition that the power to dismiss gave also the power to approve, sanction, or condemn. Some hon. Members who considered the question in a perfunctory way, might feel disposed to support Lord Salisbury on the ground that the Home Secretary interfered with magistrates. But, in the present instance, the House had to deal with Judges appointed under the Patent of the Crown, which entirely altered the case. Besides, he very much doubted whether the power exercised by the Home Secretary was at all of the same nature as that which the Indian Government claimed. If it was necessary, as a matter of policy, that there should be a power of interference given to the Executive, it ought to be done by legislation. But at present this was a question of a constitutional right. These Indian Judges were appointed by the Crown under the Act of 1861, and were to hold office at the will of the Crown; and the meaning of the words "at the will of the Crown" was well defined by the Constitution. It was necessary to consider the history of the position of the Judges prior to the usurpations of the Stuarts. That history, he thought, was not very clearly to be found anywhere. Hallam said that before the time of James I. the office was held "during good behaviour;" but he failed to find the authority on which that statement was made, and he was inclined to think it ought to have been "at the will of the Crown." After Magna Charta there was always the greatest jealousy shown that the Judges should be able to fulfil the promise given in it, that justice should not be sold or denied. As early as the reign of Edward III. the oath administered to a Judge was that he— shall indifferently administer justice to all men, as well foes as friends, that shall have any suit or plea "before him, and this he shall not forbear to do though the King by his letters or by express word of mouth shall command the contrary. In the same reign, the principle that the Crown should not interfere with the Judges in their judicial functions was laid down in a statute, and there were many other statutes to the same effect. In one case it was enacted that penalties should be inflicted on the Judges if they listened to the commands of the Crown. It was not till the time of the Stuarts that the Sovereign claimed a right of interference. The hon. and learned Gentleman (the Solicitor General), who was as well versed in Constitutional history as any Member of the House, must feel a pride not only as a lawyer, but as an Englishman, when he thought of the protests that were made against the usurpations that were attempted in those times. When James I. asked merely that the delivery of a judgment might be postponed, Chief Justice Coke refused to give him a promise that he would delay, even for a day, the exercise of his judicial functions. In supporting the claim of the King, Bacon admitted that, as between subject and subject, there was no right of interference, and maintained merely that the right existed in matters in which the prerogatives of the Crown was attacked. In the case of the Indian Judges there was a general right of interference claimed, and that went far beyond the worst claims of the Stuarts. There might be a feeling of sympathy with Lord Salisbury and Lord Lytton in their endeavours to see full justice accorded to the Natives of India; but was a consideration of that description sufficient to warrant interference with the Judges by any Governor General or any Executive in the exercise of their purely judicial functions? Policy had been spoken of; but in relation to the aspect of the question, was it not fatal to say that the Natives were not to have anyone standing between them and an arbitrary Government? It might be necessary that the Executive Government of India should be carried on with some degree of arbitrariness; there had been Governors General in India who had exercised arbitrary powers towards the Natives, and there might be such Governor Generals in the future. Well, were they to be allowed to send directions to the Judges as to how they were to administer the law? He knew that it was not only the European community in India who were shocked at the despatch of Lord Salisbury, but also the intelligent Natives, who never knew in what position they would be placed if the independence of the Judges were assailed, and who were as anxious as the Europeans for that independence. They had protested against the despatch, and were most anxious that the independence of the Judges from the Executive should be secured. They knew that those Judges were, for the most part, men of superior acquirements; that they were men who went out from England to India without prejudice; and that they were men of independent character. When Natives were made Judges it was a proof to them that we gave Natives some part in the administration of justice, and placed them, to some extent, upon an equality with ourselves. The Native Judges had many great attributes. They -were quick to learn, intelligent, retentive in memory, and capable of making nice distinctions in legal matters. But there was one defect in them which anybody must recognize—there was a want of independence in them. It might spring from the nature of their Asiatic race, or from the fact that they were a governed, instead of being a governing race. He would ask the Friends of India who talked so much of their desire to assist the Natives of India, what would be the result, if they told a Native Judge that he was to depend on the interference of the Executive Government; that they could censure him, could degrade him, could suspend his pay one day, and could restore it the next. He would be as obedient as possible to the Executive. He would watch the tendency of the Governor General, and act accordingly. This was an important feature of the question, and should not be lost sight of by those who defended interference with the Judicial Bench. In this despatch Lord Salisbury assumed that, wherever there was a power to remove a Judge, there was necessarily a power to approve or condemn his conduct. That, he (Sir Henry James) thought, was a most serious proposition. He took the position of the Executive Government to be, in relation to the Indian Judges, exactly the same as the power of Parliament was in relation to the English Judges. That which Parliament could do the Executive could do, and that which Parliament could not do, the Executive could not do. The position of Judges in India was in all respects as independent as that of Judges in England. So anxious was Parliament at the time to avoid the errors of the Stuarts, that it took from the Crown the power of removing Judges. If good behaviour was dependent on the judgment of the Crown, it was exactly the same thing as being at the will of the Crown. There was an authority which would commend itself to the House generally, and to hon. Members opposite, which laid down that proposition very clearly, and must receive the approbation of everyone. The Duke of Buckingham, who was at the time Colonial Secretary, had to deal in 1868 with the question of the judicial arrangements at Singapore, and he said— Her Majesty's Government are fully alive to the importance, or rather to the paramount necessity, of enabling the Colonial Judges to administer law in all cases which may he brought before them without any prospect or apprehension of direct or indirect interference from the Executive. In the time of Lord Althorp a Motion was brought forward to censure one of the Irish Judges. Sir Robert Peel made a most convincing speech against the claim put forward to censure and degrade the Bench, and that Motion was lost by an overwhelming majority. The House had never deviated from that time from the proposition confirmed by the vote on that Motion. In 1872, when the hon. and learned Member for Limerick (Mr. Butt) brought forward a Motion with respect to the Galway Election Petition and Mr. Justice Keogh, an objection was taken to the form of that Motion, on the ground that it did not speak of the removal of a Judge. The hon. and learned Member at once admitted that he would not take a middle course, because, if Mr. Justice Keogh was fit to be censured, he was not fit to be a Judge. He hoped he had sufficiently guarded himself from being supposed to be making an attack against the intentions of those who had framed this despatch, or even to be criticizing in a hostile spirit the policy which dictated it; but against the wording of that despatch, and the principles contained in it, he felt it his duty to speak as earnestly as he could. The Government need not feel any humiliation in admitting that the terms of that despatch could not be constitutionally justified. Those who had been in office knew how easily mistakes of this kind might be made. Everyone might have to ask forgiveness, and they must give and ask for pardon by turns. This despatch could not be supported, and the Government had not yet been pledged by the Solicitor General to support it. He hoped that the strong hand which tore up the first Fugitive Slave Circular would also tear up this despatch. Even if, for the moment, Lord Salisbury himself would have to say that the despatch could not be supported, he felt sure that the noble Lord would be generous enough, to accept that proposition if he saw that by making the admission he secured the establishment of full constitutional right for the sake of the independence of the Judges of the land.


said, he would not have put himself forward in this debate if it had not been—what rarely happened to him—he was unable entirely to concur with the views of his hon. and learned Friend the Member for Taunton (Sir Henry James). He was entirely of his hon. and learned Friend's opinion, that in the despatch of Lord Salisbury some indiscreet expressions had been used; yet, on the other hand, the absolute affirmation of identity in the position of the Judges in India and the Judges in England was a position which could not be sustained, and any attempt to enforce it would lead to very great difficulty, and, he might say, to very great danger. The contrast of the absolute assertion made on the one side and the other in this matter reminded him of a celebrated constitutional controversy between Pitt and Fox with reference to the Regency Question. Fox maintained the absolute right of the Prince of Wales to the Regency, while Pitt said the Prince of Wales had no more right to be Regent than any other person. Both these assertions were wholly wrong and unsound. He ventured to think that this debate ought not to be confined to mere technical considerations, but that it had a much larger scope, and it was impossible to apply to India their own sage maxims of constitutional law, however much they might respect them. The question was part of a great controversy, and not merely one of judicial functions; it wa8 a claim on the part of the Civil Service of India to exercise a kind of control over the Executive Government, and he could not believe that this would result in any advantage to the Native population. As the House was aware, the question had been made a lever for an attack upon the Executive, upon Lord Lytton and Lord Salisbury, which he (Sir William Harcourt) believed to be profoundly unjust and exceedingly mischievous; and he hoped it would not go forth that the House of Commons had sided with the violent attack which had been directed by the Civil Service of India against the Governor General and the Secretary of State. He was sure that his hon. and learned Friend would disclaim any such intention; but, unless they took pains to express their opinion clearly, great mischief would arise. He did not wish to say anything offensive to the Civil Service, but he could not overlook the fact that in every dominant race a tendency towards oppression would show itself; and whatever question of constitutional law might be involved, the real controversy was, whether the Executive should or should not hold its strong hand over the Civil Service, and prevent its falling into that besetting sin. The discussion, however, could not be narrowed to that one point. He had listened to the conditions men- tioned by his hon. and learned Friend the Member for Taunton, and to his speech about the Stuarts, Lord Coke, and Bacon. He fully concurred with him, but failed to see how those matters applied to the particular question. The great offence of the Stuarts was that they tried to apply despotic principles to a free country; but how could any such consideration affect their judgment on the principles which were to govern India? India was not a constitutional country, and though he did not undervalue constitutional principles, he could not accept the proposition that they ought necessarily to underlie the government of all countries. It had been contended that the Judges of India were absolutely as free from control as they were in England, and that no treatment short of dismissal could influence them. But his hon. and learned Friend argued that the conduct of Mr. Leeds was wrong, and that he ought to have been dismissed; in that he could not agree with him, holding that, though his conduct was wrong, the punishment suggested was wrong also. He only wished to point out that the course pursued was not desirable, and a practice so Draconian in its severity would not be beneficial to India. His hon. and learned Friend had said that they could meddle with Judges in England, but not in India; but what did that mean? If the Government in India were to have no control over them, who was to deal with them? Parliament certainly was not to exercise control. Were they going to erect the Judges in India into a power superior to the Executive, superior to the Governor General, superior to the Secretary of State, and superior even to Parliament itself? He had a very high respect for the Judges who were under the control of the public opinion of a free country; but he was not disposed to repose confidence in Judges who were absolutely uncontrolled in the distant regions of the East. There was a tendency in certain quarters to deify a man the moment he was made a Judge, and they were apt to imagine that, from that moment, he was removed from all the vices and faults that belong to human nature. But the fact was—which his hon. and learned Friend seemed to forget—that a Judge was a man, and might commit errors even when he was called a Judge. Why they should suppose that the moment a man became a Judge he was fit to be entrusted with absolute, uncontrolled power he could not understand. He was an enemy to all forms of despotism, and this would be the most dangerous, oppressive, and mischievous of all. What did they mean by a despotic Government? They meant that the Executive was supreme. What did they mean by constitutional Government? They meant that the government was restrained by Parliament and by public opinion. The question, then, was—Did they, or did they not, admit that India was despotically governed? If they said that India was constitutionally governed, he would admit all that his hon. and learned Friend the Member for Taunton had said; but if they admitted that India was despotically governed, then the analogy which had been drawn between India and a Constitutional Government was altogether inapplicable. They were told they must have the Constitutional Judge to stand between the Executive and the Natives of India; but why were they to assume that the Judges would stand between the Executive and the Natives? The Judges themselves were members of the dominant caste—the most distinctive element of that dominant caste—and what was the power which alone could and would be disposed to stand between the Judiciary and the Natives? It was the Executive Government in India, which had the great advantage of being short-service men—men who had come from England fresh with the instincts of a free country, without the prejudices which belonged to the dominant class; they were the most likely to stand between the Judiciary and the Natives. He attached great importance to the principle of short service and to the fact that the men went out fresh, as it had been said, from a bath of liberty in England. They went to India with the principles that actuated England at home; they had not had time, under the enervating influence of the climate, and the still more enervating influence of a dominant class, to forget the principles on which the government of India was founded. They had to deal, no doubt, with a very difficult problem, but they did the best they could; they must try to balance these enormous powers; but he must object to the erec- tion of a despotism which had never yet been known—the despotism of a Judiciary uncontrolled by a Bar, uncontrolled by public opinion, and uncontrolled by the Press. That a man should say—"I am a Judge, I cover myself by that veil, I do what I like, I am not responsible," that was not a system to establish in India; and, without defending every expression used in the despatch, he must say it seemed to him that substantial justice had been done in a matter of immense importance. Absolute and uncontrolled power on the part of the Judges seemed to him incompatible with their rule in India, and he would therefore be no party to passing a censure on the Government of India.


said, no one could be more jealous than he was of the interference of the Executive with the Judges; but, after a careful consideration of the circumstances of the case, he had come to the conclusion that the despatch of the Secretary of State for India was entirely right. The Governor of the North West Provinces had, for his own information, applied to the High Court for their own opinion respecting the propriety of the sentence passed. They should have declined to give any opinion: they, however, replied to the effect that the sentence, though, perhaps, lighter than the Court might be disposed to fix, under the circumstances, did not appear to be especially open to objection. The letter, to which that was an answer, was a semi-official letter, and the opinion expressed in the reply to it was simply an unofficial opinion. The point was not one brought before the High Court in its judicial character. When the question came before the Government of India they used these very mild terms— The Governor General in Council cannot but regret that the High Court should have considered that its duties and responsibilities in this matter were adequately fulfilled by the expression of such an opinion. But it should be remembered that this was not a question brought before the High Court in their judicial capacity. If the High Court was asked to express an informal opinion, surely the Governor General, if he thought that opinion wrong, was justified in saying so? With regard to the general question, he could not put the Judges of the High Court in India precisely on the same footing as the Judges in this country. There was, in the first place, this remarkable difference—that the Judges in this country held office quamdiu se bene gesserint, while the Judges in India held office durante bene placito. In this country the Crown could not dismiss a Judge, except upon an Address from both Houses. But in India there was no House of Commons, nor was there any public functionary or organ which could advise or rebuke a Judge, except the Viceroy; and a milder admonition, with regard to the course which he thought ought to have been pursued in the present case, than that given by the Viceroy could not have been expressed in language. Even in this country, the fact that a Judge could only be removed on an Address by both Houses of Parliament did not prevent the House of Commons from calling in question the conduct of a Judge. For instance, in 1770, Serjeant Glyn moved in the House of Commons for a— Committee to inquire into the proceedings of the Judges in Westminster Hall, particularly in cases relating to the liberty of the Press; when, in the course of a long debate, the conduct of Chief Justice Mansfield was severely censured by the Mover, and by Dunning and Burke, "while," as Lord Campbell said, "it was stoutly defended by Gray, Attorney General Thurlow, Solicitor General, and Charles Fox." If they in that House might call in question the conduct of a Judge without intending to move an Address, why might not something similar be done in India? He should certainly oppose the Motion if it could be pressed to a division.


said, they must discuss this question as one wholly independent of the claim set up by the Civil Servants of the Crown, and they must, moreover, consider to what the second despatch of Lord Salisbury would lead if it were carried out to its full extent. His hon. and learned Friend (Sir William Harcourt) had said that the Government of India was a despotic Government, and its treatment must be different from that of a constitutional Government. But surely it was a question, if you were to govern a country despotically, how far you must leave that despotism unchecked, uncontrolled, and unfettered. Was it not desirable to fetter that despotism with some of those checks and safeguards which had been found useful in this country, which was governed constitutionally? Unquestionably, the sentence in this Fuller case was one which came within the judicial discretion of the Judge, if he honestly and fairly exercised that discretion; and however much persons might dispute the expediency of the sentence, there was not anything in it so extravagant as to show that the Judge did not desire to do justice between Natives and men of his own race. Hence the extreme importance of Lord Salisbury's second despatch, which laid down this—that the power of interference and censure on the part of the Executive was a power which ought to be exercised only in cases of extreme necessity. But what did Lord Salisbury mean by "extreme necessity," according to his own interpretation of the words? He meant that in every case in which the Judge exercised discretion it was in the power of the Executive to punish him for the sentence he had pronounced. Admitting that where there was no Parliament the Executive must exercise control, the next point they had to consider was to what extent, and in what direction, was that control to be exercised. When it was urged that Judges in India were free from the popular criticism and control which existed in England, it might be said that the same was true also of the Executive Government in India. The Indian Executive was all powerful, and not under the same criticism as the English Executive; and, therefore, while there might be danger in leaving the Indian Judges too uncontrolled, there might also be a similar danger in the case of the Indian Executive. He hoped that such a public sentiment was making way in India as would render it less likely now than ever that Englishmen, when dealing judicially with a Native, would deal with him differently from what they would do with a European. But Judges in India were not all of the dominant race; some of them belonged to the subject-race, if so it was to be called; and this fact rendered the despatch the more dangerous, and made it important it should be understood that if those powers were to be exercised in India, which were not exercised in England, they would at least be kept under the strictest and most rigorous control and inspection. If the Executive was to be interfering constantly with the Judiciary, perhaps from over sensitiveness in favour of the Native—for such a thing was possible—it should be remembered that they might have a recoil in the opposite direction, when those who might think the Native had got more than his due would seek to get for the Englishman, perhaps, more than his due. The great object should be to hold the scales fairly between the two classes, and deal with them as if they were both of the same race. They should guard not only against favouring the strong against the weak, but also against favouring the weak against the strong; for as much mischief might be done by the latter as by the former; and it was a remarkable fact that among the earliest warnings given in the Books of Moses to a Judge as to the performance of his duty was this—"Thou shalt not respect the person of the poor, nor honour the person of the mighty." Admitting that there must be the right to dismiss a Judge for misconduct, he asked—was there necessarily involved in that the right, not only to censure him, but to prescribe a course of conduct? Because that was what was implied by the despatch. The next time a man exercised his judicial discretion, there was the danger that he might not act impartially, according to the best of his own judgment, but with an eye to please the authorities of Calcutta. If, excepting in the case of absolute misconduct, the Executive were to point out to a Judge that a certain course of judicial conduct might lead to his dismissal, that would tend to sap the independent judgment of the tribunals. Instead of censuring a particular Judge for giving a particular sentence, the Government, if they had deemed it necessary, could have issued a circular on the subject to Indian magistrates generally.