HC Deb 25 June 1913 vol 54 cc1168-90
Mr. RUNCIMAN

I beg to move, "That this House do now adjourn."

Mr. SWIFT MacNEILL

I may be excused for speaking on the Adjournment at a time which is generally inconvenient to the House and myself. I may say that since the 1900 Parliament, I have never spoken or intervened in regard to a Motion for the Adjournment, and I would not do so now except that, in common with everyone here, I have feelings of humanity and desire to do to others as they should do unto us. I shall put before the House two or three salient points. I think hon. Gentlemen who have been bred to the law must have been startled on finding that under any Government under the British Crown—and especially in India with respect to which Edmund Burke said that he would be desirous that the British flag should have as much power for the protection of every subject there as it has in this land—such a thing is possible that two men should be arrested, tried for murder, and acquitted, that they should be left at large at home in their own houses for five long months, and that then at the instance of the local Governor they should be rearrested, tried by another tribunal, convicted, and. sentenced to be hanged, and that their memorial for reprieve and for mercy was refused to be sent to the great State Governor of India by the Lieutenant-Governor of the province—the very man who instituted the retrial. I asked the Under-Secretary whether he would take some steps to secure that there should be such a change or modification in the penal code as to ensure that under the Indian code the plea, which is an absolute plea in bar of trial in our Courts, should also be accepted in India, so that such an outrage as that with which I am now dealing—I am not discussing the question whether the men were guilty or not—should not take place, the men having been once tried and acquitted. The second thing I asked the Under-Secretary was that there should be, especially in capital cases, the same rules of procedure, the same form of trial, and the same facilities for having an appeal given to the natives of India as are at present given to every European subject.

I will state exactly what has occurred. My authority for the facts I am about to state is a gentleman whom we all knew as one of a kindly disposition, and who cared little for the trammels of officialism. I refer to Sir Henry Cotton. The particulars were placed in the possession of Sir Henry Cotton by a gentleman of great eminence in the United Provinces. Sir Henry thought the matter so serious that he at once sent all the papers he had received to Lord Crewe, and asked him to inquire into the matter, with the view that there should be an amelioration of the procedure, especially as to appeals and retrials, and that possibly Lord Crewe would give some assurance on the matter, as he (Sir Henry) did not wish to publish the facts—they were so terrible. He received from the India Office the official letter in January of this year. He waited until early this month, and asked what reply he was to have, and the reply he got was to this effect, that every statement which he had made was practically correct, and that the Indian Government saw no reason for interfering. Then Sir Henry Cotton said, "If you do not choose immediately to interfere through the ordinary sources, I will publish what has taken place." What went on was this: The province of Oudh is what is called a non-regulation province—that is, a province in which they have not the usual order of higher judges. Instead of judges, they have Commissioners; instead of magistrates, they have Sub-Commissioners and Petty Sessions judges; and instead of a Lieutenant-Governor, although he has all the powers of one, they have a Chief Commissioner. It has been a non-regulation province owing to the great resistance made by the people in the Indian Mutiny. In that province there were three men who were arrested for some murder arising out of an agrarian dispute. They were natives, and were brought before the Petty Sessions judge for trial.

If they had been Europeans they could not have been brought before this judge for trial in a case of murder. The Petty Sessions judge cannot try a European for any offence for which there is a greater punishment than twelve months' imprisonment. The Petty Sessions judge in this case, who sat with two assessors, was a gentleman named Benn, who is a high official in the Indian Civil Service, a man of high character, and, they say, of great judicial qualities. The assessors agreed, having heard the evidence, with Mr. Benn, who takes their advice, though he need not act on it, but must decide on his own responsibility, and what he said was this: "I am constrained to acquit. I cannot and do not believe the evidence produced before me." That occurred on the 22nd February, 1912. The men, of course, went back to their homes, and heard nothing whatever of the case from the 22nd February until the 10th July. Then the Chief Commissioner himself directed the Crown Prosecutor in this district to appeal not to the High Court at Allahabad, but to the Chief Commissioners of the United Provinces to retry the case. They admitted the appeal. They retried the case. I believe there were three of them. The way they retried the case was the most astonishing thing in the world. The accused were not present. No fresh witness was produced. They never saw the witnesses. They never were able to examine them, and look at the demeanour of the people giving evidence. What they did was to read the record. In India a record is a strict account of the evidence in the Court below, of every word that is said, of all the evidence of the witnesses, and even of the judgment of the judge and the reasons for giving his judgment, and, on what we call the depositions, they came to the conclusion—against the judge, who saw the prisoners and was able to judge of the character of the witnesses—that the men were guilty. Two of them were sentenced to death, and the third was sentenced to penal servitude for life.

9.0 P.M.

In these countries, in any case in which there is a technical verdict of murder, the judge must pass sentence of death. In India, on the contrary, a judge has the option of sentencing to death or to penal servitude for life. One was sentenced to penal servitude for life, and two were sentenced to death, though one would imagine that where discretion existed a judge would be very slow to pronounce the death penalty on men who, however guilty, had been out for five months, and who had gone through all the mortal agony, such as is even endured by persons defending them, of men who are tried for their life. To these poor men the same idea of mercy was not extended as was extended in the case of the Europeans, Lieutenant Clark and some woman, who were convicted in a horrible case of poisoning. Because they were Europeans they were tried before a jury, and the judge, an old friend of mine, Chief Justice Richards, did not pass sentence of death at once, but considered whether he could by any means respite one of them. But these Commissioners did no such thing, although the men had been acquitted. They were sentenced to death when there was the option of imposing a sentence of penal servitude for life. Now comes the strange thing. This occurred on the 17th August. On the 27th August these men sent in their appeal to the Chief Commissioner, the very man who had instituted the prosecution against them. He kept it for four days and refused it. It reached the prisoners' counsel on the 2nd September. The execution meantime had been fixed for the 9th September. They wished to appeal, as they were entitled to do under the rule, to the Governor-General of India in Council, that is the Government of India, for a remission, revision or commutation of their sentence. That appeal had to be forwarded to the Lieutenant-Governor, who kept it back. He did not forward it on the ground that it would be too late to reach the Indian Government in Simla before the 8th September, whereas the execution had been fixed for the 9th, and it is the rule that in these appeal cases the Government of India should have forty-eight hours to consider whether they would grant the respite of sentence or not. It was his absolute duty under the circumstances to arrest the execution pending the decision. That he did not do. Unfortunately the official who instituted the prosecution of these men took on him-self the horrible and grave responsibility of shedding their blood. This is by no means the first case in which this has occurred. Of course these men were hanged on 9th September, and one of the most pathetic incidents in the case was that the father of one of them hurried to the Governor-General on the 8th, and the Governor-General sent him back to the Lieutenant-Governor, who had no difficulty in the matter. As I said, this is not the only case of the kind which has occurred. In 1906, in the eastern province of Bengal, a man was found guilty of murder, in precisely the same circumstances as these, before a Petty Sessions Court. He appealed, and the Court of Appeal confirmed the sentence. This man, therefore, was sentenced, and the sentence was confirmed. He then wished to appeal to the local Government, and having the opposition of the local Government, he desired to appeal to the Governor-General in Council, and that appeal was not forwarded by the local Government. This is what Lord Morley, the Secretary of State for India, said in reference to that transaction, a much less horrible transaction than that which I am bringing before you:— Let me say that if a prisoner petitions the local Government and further petitions the Government of India, and if such petition in the opinion of the local Government contains anything which would be likely to influence the Government of India in the prisoner's favour, the local Government is bound under Regulation 85 to forward it to the Government of India, but he is not bound to postpone the execution beyond the date already fixed. We are told that a petition could be sent to the Government of India, but the execution was to go on. In this case they did not forward it, and the execution went on upon the Lieutenant-Governor's own responsibility. I thank the House for the great attention they have paid to me in taking this opportunity to bring forward this case on grounds of humanity.

Mr. MORRELL

I will not detain the House by repeating what my hon Friend has already put so well. The facts of this case are not in dispute; indeed, the main facts have been admitted in the House. They fall, as the House will see, into two main issues. First, the question arises as to the policy of putting these men again on trial for their lives, after they had been tried and acquitted by the judge and the assessors. The second point is as to the circumstances under which these men appealed for mercy, and their appeal was not forwarded to the Governor-General of India. As regards the first point, I would only say if any new facts, any new evidence had come up in the five months after the men had been acquitted, then, although I believe myself that it would have been a barbarous thing to put the men on trial again, yet, at least, there would have been some defence for doing it. But in this case there were no new facts, no fresh evidence, no other witnesses; indeed, there were no new witnesses at all called, and to put them on trial again for their lives, after they had been duly tried and acquitted, is nothing short of a judicial scandal. As regards the other point, surely if ever there was a case in which an appeal for mercy should have been properly considered by the Governor-General of India, this was the case to which full consideration should have been given. What happened? I see from the reply of the hon. Gentleman the Under-Secretary that these men appealed to the Lieutenant-Governor, and the Lieutenant-Governor on being memorialised by the accused, refused to interfere. What did they do then? They sought to appeal to the Government of India, but that request was again refused. In spite of that, they prepared their appeal, and they handed it to the Lieutenant-Governor, asking that it might be forwarded to the Government of India. The Lieutenant-Governor said, "I cannot do so; I withhold your appeal for mercy, because it has been forwarded too late, and because there would not be time for it to be considered before the date of the execution." This was after he himself had refused—I believe I am stating the facts rightly—to postpone the date of the execution.

We shall be told again by my hon. Friend that all this is quite true, but that the Lieutenant-Governor acted legally, and that all the officials acted within the strict letter of the law. Does anyone who has read history, and who knows what may happen in countries under such a Government, doubt that within the strict letter of the law you may act with an injustice, an inhumanity and an unfairness that may be as great an outrage as if the Governor-General himself had broken the law. I submit that in this case, although they took care to keep within the law, the way in which they behaved was nothing less than a gross straining of the machinery of the law. I have one more point. Even if the Government of India can do very little, at least we can take some steps to see that a case of this sort does not occur again under the British flag. I want to know to-night what steps Lord Crewe proposes to take to prevent this sort of case occurring again. I must say, and I speak with all due respect, that the attitude of the Government does not strike me as satisfactory. Lord Crewe had all the facts before him, and the whole of the correspondence, and for six months he did not reply except through a secretary. Is it the case, I ask my hon. Friend the Under-Secretary, that while those facts were perfectly well known to the Government, Sir John Hewett was recommended for promotion and received promotion in the Order of the Star of India? If I am wrong in that I hope my hon. Friend will correct me, but I am informed that he was promoted from Knight Commander of the Star of India to Grand Cross of the Star of India. It may be that there is a complete defence for his conduct in this matter, but if there is no better defence than we have yet heard, I think it is nothing short of a scandal that au officer of that kind should have been guilty of this conduct. I do hope that we may have something more satisfactory than we have yet had. The hon. Gentleman tells us that the Secretary for India doubts whether under the circumstances this discretion was wisely exercised. I think we are entitled, after six months' consideration of the case, to have a more satisfactory assurance than that.

The UNDER-SECRETARY of STATE for INDIA (Mr. Montagu)

I have already stated, in answer to a question in this House, that the facts of this case, so far as we have yet been able to ascertain them, are substantially as they were set forth in the question which my hon. and learned Friend (Mr. Swift MacNeill) and other hon. Members asked me yesterday. That is exactly how the matter stands today. On receipt of an unofficial communication from Sir Henry Cotton, the Secretary of State forwarded that statement of the facts to India, and has received the confirmation of the facts which I have described. I can only say now that the case presents features so unsatisfactory on the report which has at present reached us that they cannot be allowed to go unchallenged. I do not want to risk wearying the House with the matter, but it is one of such importance that I want to state one or two of the salient features once again in order that the House may have an unprejudiced view, and I am making no accusation, as to the correct details of what occurred. The prisoners concerned were tried by the Sessions judge, sitting with three assessors, strictly in accordance with the provisions of the Criminal Procedure Code. I do not think the hon. and learned Member ought, if he will forgive me for saying so, to have used the word "Petty" in front of the title of the Sessions judge, because it may cause Members to think that it is analogous to the Court in this country, and give a mistaken view of the very responsible position of a Sessions judge. It is an inferior Court. but a competent Court. The Sessions judge, and the three assessors who sit with him in such a case is, I assure the House, the best substitute which we can find at present for the jury system in many parts of India where it is difficult enough to find assessors, and where it would be impossible to find juries competent to deal with cases. Of those three assessors, two agreed with the Sessions judge, and one differed from the Sessions judge in acquitting the prisoners. Five months afterwards when the——

Mr. KELLAWAY

Are the assessors natives?

Mr. MONTAGU

The assessors are Indians.

Mr. SWIFT MacNEILL

Is it the fact that the assessors are simply entitled to express an opinion, and that it is the judge who gives the verdict?

Mr. MONTAGU

The assessors are there to assist the judge. Two of them agreed with the judge in acquitting the prisoners, and one differed. Five months afterwards the two Judicial Commissioners for Oudh convicted the prisoners on appeal. The Judicial Commissioners of Oudh are exactly the same in status as the High Court judges in the other Provinces. I can assure the House it is simply a question of title, and not a question of status, and that happens to be the name given to the judges exercising the functions of a High Court in that Province. In this particular case you have two judges, whom I venture to describe as as competent as you could find anywhere in India, one an Englishman and one an Indian. They convicted the prisoners. The reason why an appeal was ever made was that the district magistrate, convinced that there had been a miscarriage of justice, asked the Lieutenant-Governor through the ordinary channels to direct an appeal. Sir John Hewett, giving the case his most careful consideration, and having consulted and taken legal advice, did not come to the conclusion these men were guilty and ought to be punished, and did not form any conclusion, but thought it ought to go in the normal way under the Criminal Procedure Code to appeal.

Mr. MORRELL

Is it not the fact that there were no new witnesses or no new facts?

Mr. MONTAGU

Under the Criminal Procedure Code they cannot call new witnesses, but they can hear the accused. I do not know yet whether they did.

Mr. SWIFT MacNEILL

They were not present.

Mr. MONTAGU

I have no information on the point. They hear the Public Prosecutor and read and consider the evidence. They can order a retrial in the court below, put they cannot hear fresh evidence or re-try the case themselves. They came to the conclusion, those two judges, sitting together, that the learned judge below and two of his assessors had been wrong in not giving credence to the evidence they had read, and that there ought to be a conviction. They then sentenced two of the men to death, as my hon. and learned Friend has said, and one of them to transportation for life. The first point which I will submit to the House demands inquiry, is to get au explanation of the very long delay which occurred between the one verdict and the other, a long delay which is the first, and on the face of it, most questionable fact we have to deal with. The Lieutenant-Governor makes a practice that as soon as a capital sentence has been passed by the High Court within his province, or by the Judicial Commissioners, to have a record of the cases sent to him for his inspection, so that he always, as a matter of routine, possesses himself of the facts of the case before an appeal is made for the exercise of the prerogative, in case an appeal should be made. I happen to know on inquiry this was done in this case, and when the appeal came forward, again acting on legal advice and after carefully considering the case in all its aspects, he came to the conclusion that he must reject the appeal for mercy.

I would not pay this tribute to him if it were not provoked by certain words which fell from the hon. Member who addressed the House last, but there can be no two opinions, that no administrator in India has shown greater ability and greater industry, and has been a greater success in the administration of his province than Sir John Hewett, and in this particular case I refuse to believe that he did not, as was his characteristic in all his dealings, show the very greatest possible care in considering the high and responsible duty he had to perform. Nobody wants the horrible task of confirming or reviewing a sentence which is going to send a fellow human being to his grave. It is a responsibility which any one of us would be glad to shirk if we could. It is a responsibility which calls for the most careful exercise and, even if Sir John Hewett acted in a way which might, when we knew all the details demand criticism or censure, I am quite certain he acted with great responsibility, justice, and caution. In this particular case let us consider the situation. There is first of all the appeal to the Lieutenant-Governor.

Mr. SWIFT MacNEILL

the hon. Gentleman forgets that Sir John Hewett himself was the person who stimulated the retrial and set the Court in motion. The hon. Gentleman has spoken of the district magistrate. He must know that the district magistrate in India is the same as the Crown Prosecutor in Ireland.

Mr. MONTAGU

The district magistrate is a high official, responsible for law and order and good government in his district. The Sir John Hewett who directed the appeal against the acquittal was of course the same person who had to deal with the appeal for mercy, but he was as Lieutenant-Governor exercising two different functions. You may say that the accused knowing him for the same person could not be expected to think he would take a fair view of their appeal for mercy. But they appealed to him. You may say that they were wrong, but they appealed to him, and the first thing he was bound to do was to consider that appeal. That he did, and he rejected it. Then comes the second appeal—the appeal through him to the Government of India. He had to say whether it should be sent on or not. Let me remind the House that in dealing with questions of capital punishment every Government in the world, I think, makes it a practice to avoid, if possible, the postponement of an execution. It is not always a merciful thing to postpone an execution. It is always better, unless circumstances demand it, not to keep a condemned man—[Several HON. MEMBERS: "Oh!"] I say as a general rule, if consistent with the interests of justice, the first thing you should try to do is not unnecessarily to postpone an execution. It may not be a merciful thing to do for the prisoner. I will read to the House the rules under which Sir John Hewett acted. These are rules issued on 11th February, 1911:— Local Governments and Administrations should withhold petitions of mercy addressed to the Government of India only when all the following three conditions are fulfilled, namely: (1) That the petition cannot reach the Government of India in time to allow forty-eight hours for the consideration of the case before the date fixed for the execution"—— [Several HON. MEMBERS: "Oh!"] Hon. Members must remember that if you did not have a provision of that kind as one of the provisions—there are three of them—it would only be necessary in order to get a postponement that a petition of mercy should be lodged just within the two days. The rule proceeds— (2) that it does not set forth any consideration or that there are no circumstances in the case which in the opinion of the local Government would be likely to cause the Governor-General in Council to take a different view of the case from that taken by the Local Government; and (3) that the case is not one in which for some special reason considerable public interest has been aroused.

Mr. SWIFT MacNEILL

The hon. Gentleman says that these are regulations of 1911. Is he aware that they repealed the regulations of 1885, ordering petitions in all circumstances to be sent on?

Mr. MONTAGU

These only amplify the regulations in force before. The rule goes on that an execution will be stayed by the local Government only when in its opinion there are considerations or circumstances which might cause the Governor-General in Council to take a different view of the case from that taken by the local Government. There are two different questions before the House: First, are the rules bad; and, secondly, did Sir John Hewett act in accordance with the rules? If he did, he must not be blamed for the fact that the rules are bad.

Mr. MORRELL

He may have acted harshly.

Mr. MONTAGU

I would suggest that the two main points which require investigation and inquiry are, first, the great delay between the acquittal and the sentence, and, secondly, whether, having regard to the facts that in this case there had been an acquittal in one Court and a conviction in the other, and that he himself was as head of the Government responsible for permitting the appeal to take place, the Lieutenant-Governor did not think it wiser, if I may use that word, to forward the appeal to the Government of India rather than take upon himself the responsibility of deciding that the case did not call for intervention. I have to say on behalf of the Secretary of State that this particular exercise of the discretion is one of the circumstances which does demand careful investigation, and this investigation is to be undertaken at once. Naturally, any features of this case which seem to us incompatible with British ideas of humanity cause the Secretary of State as much anxiety as they cause hon. Members here. If I may state my own opinion, the slightest investigation of the rules, which I have promised to lay upon the Table of the House, will show that they require emendation. One of the rules which the Secretary of State will submit to the Government of India as the outcome of this case is to the effect that in a case where an acquittal in one Court has been followed by a conviction in a Higher Court an appeal for mercy transmitted through the local Government to the Government of India should always be forwarded. I know the delay, and I know the extreme difficulty in exercising patience in a case which stirs feelings as this case does, but I would suggest that some of the criticisms passed in this Debate are premature. We have at the moment only the statement of the facts. We have not had an opportunity of getting an explanation in an official form from the Lieutenant-Governor as to the way in which he exercised his duty.

Mr. SWIFT MacNEILL

He is in this country.

Mr. MONTAGU

I know; I have seen him this afternoon. But he has not the Papers before him, and I am quite convinced that the right way to treat a man who has had to exercise this responsibility is to give him every opportunity of making his own explanations.

Mr. MORRELL

Meanwhile, does the Government think it right that he should have been promoted?

Mr. MONTAGU

I may express the opinion that such decorations as have been awarded to Sir John Hewett for his services in India have been in every way merited.

Mr. SWIFT MacNEILL

Tell that to India.

Mr. MONTAGU

Only on this question, which the India Office desire as thoroughly as anybody in this House to inquire into and to make certain that any objectionable features in it may never recur, I ask for a suspension of the judgment of the House until Members are in possession of all the explanation and information that we can get. I can assure the House that we do intend to pursue our investigations as expeditiously as possible.

Mr. W. REDMOND

Is the third of the prisoners to be kept in prison until the investigation is complete?

Mr. MONTAGU

I am glad the hon. Member has mentioned that. His appeal for mercy was forwarded to the Government of India.

Mr. SWIFT MacNEILL

Why?

Mr. MONTAGU

That is exactly the sort of thing the House of Commons has no right to decide, until we know why. That is precisely one of the things upon which we desire to inform ourselves; to inquire about. So far as I can see by reading the documents the Government of India has rejected the man's appeal for an alteration of his sentence.

Mr. LYNCH

I would like to put one question. The hon. Gentleman said that all objectionable features in this case will be inquired into. May I ask if he considers it an objectionable feature to try men again who have already been declared innocent?

Mr. MONTAGU

That is a feature of the Indian Criminal Procedure Code which it shares, I am informed, with other countries, and which has been in existence since 1872. [An HON. MEMBER: "Do you approve of it?"] Speaking on behalf of the India Office, I cannot on a case half investigated pronounce on a practice that has existed for forty years. If he suggests that a right of appeal from an acquittal is one of those things which ought to be considered in a revision of the Criminal Procedure Code, I will certainly convey that expression of opinion to the Secretary of State. But I would point out that he is making very large conclusions from one case.

Mr. LYNCH

I think the House will agree.

Mr. MONTAGU

The situation has arisen—must have arisen—several times before, and so far as I am aware, with the possible exception of a case in Eastern Bengal, which I am not investigating, there have been no cases in which any objection to this form of procedure has taken place, nor am I acquainted with the reasons for adopting it in 1872. There are quite serious and grave enough question. There is the Amendment of the There is the great and perplexing delay of five months. There is the way in which the Lieutenant-Governor used his discretion. There is the Amendment of the rules which dictate what appeal the Lieutenant-Governor shall and shall not withhold. All these three questions require close and studious investigation. I should have thought the House would have gathered that from the answers I have given to questions. I may here say to-night that this investigation will be pursued vigorously. The Secretary of State will not shirk any measures, however drastic, which the honour and reputation of our code of justice demands. The case cannot be allowed to rest where it is. I am as determined as any Member of the House to get a thorough explanation, and I can assure the House——

Mr. KELLAWAY

When will the investigation begin?

Mr. MONTAGU

A despatch will be drafted, and probably sent by mail after the next meeting of the Secretary of State in Council.

Mr. SWIFT MacNEILL

Sir John Hewett is here while you are sending despatches. What nonsense it is!

Mr. MONTAGU

The hon. Member is naturally very much harrowed in his feelings, and he has come down here, so far as I can see, to make no allowance for anybody, and before we have done it he casts doubts upon the efficacy of our inquiry. I cannot undertake to move or to act before we have completed our investigations. I can assure the House that we shall move and act when the investigation has been completed.

Mr. MORRELL

Is it not a fact that these papers have already been before Lord Crewe six months?

An HON. MEMBER

He wants another six months?

Mr. MONTAGU

The papers never came before Lord Crewe officially, but in the private letter—I do not mean that the letter was marked "Private." There is all the difference in the world, as the hon. Member knows, between an appeal to the Secretary of State in Council, which can be dealt with in Council, and a letter to Lord Crewe. When that letter arrived in January, Lord Crewe immediately sent out the allegations of fact to India, and he has now received the reply. The reply applies only to the facts. Now Lord Crewe is in a position to deal with the matter officially in Council. He is also in a position to ask that these facts shall be supplemented, and to express the opinion which he must have formed upon the facts submitted to him. The speech which I have made on his behalf to-night and the answers that he has given to questions, shows that he shares with the House the anxiety which they feel upon this question.

Mr. W. REDMOND

May I put one question, as to whether the hon. Gentleman can give any explanation as to why a letter of representation from Sir Henry Cotton, a gentleman who was long years in this House and highly respected, received no consideration for six months? Whether it was official or otherwise, surely representations of that kind should within six months at least have received due consideration?

Mr. MONTAGU

I am afraid I cannot give any explanation of that. It was a letter which I, personally, never saw. The letter was dealt with by Lord Crewe, with the assistance of his secretary, and was sent out at once to India, and the investigations in India and the receipt of the reply accounts, I imagine, for some considerable portion of the time. I will certainly make the hon. Gentleman's comments known to the Secretary of State.

Mr. ARNOLD WARD

There is only one point that I wish to have cleared up in the statement of facts as presented to the House this evening. The hon. and learned Gentleman represented Sir John Hewett as having stimulated—that was his word I think—the appeal against the acquittal by the Sessions judge. I want to ask the Under-Secretary as to whether I do not understand his version of the facts to be that the initiative in the matter of the appeal against the acquittal was taken by the district magistrate, and not by Sir John Hewett, and that all that Sir John Hewett had to do was to decide upon the request put forward by the district magistrate? Secondly, I ask the House to suspend anything in the nature of a hostile judgment on the wholly inadequate version of the facts which we have before us against Sir John Hewett without hearing anything in the nature of his explanation. Speaking from personal knowledge of Sir John Hewett's administration in India, there is no more capable or no more conscientious servant of the Crown in the Indian Empire.

Sir JOHN JARDINE

It has been asked why there was six months' delay before this appeal was heard. The Government of India may appeal against an acquittal within six months' time. People used to Indian affairs know that High Courts and local Governors require all the records before they make up their minds and before they refer them to the Law Officers, gentlemen who do work like that done here by the Attorney-General and a long time is occupied in copying out the whole of the records. That will account for a good deal of the delay. Before urging an appeal in a capital case after acquittal, the responsible authorities require some time to make up their minds. I agree very much with what was said as to the Sessions Courts presided over by a judge with very large penal powers. Except as regards appeals he is assisted in some cases by assessors and in others by juries. He may try all cases and pass capital sentences, and there are a great many of those judges throughout India who have this power. Whether, as in this case the judge uses assessors, where the system of trial by jury is not brought in, he is bound to ascertain and record the views of the assessors, and he may put questions to them as to whether they believe a particular witness, or whether a particular story is probable or not. The most competent judges do that in order to get the advantage of these substitutes for juries; they are men who are natives of the district having a very considerable standing and having that intimate knowledge of customs and of language which most of us European officers do not possess. I do not know that the judge entrusted with such great powers, and especially having assessors conferring with him in the acquittal, did not properly exercise his high functions. But when we have a question of appeal against acquittal, it would be wrong to infer in any way anything against Sir John Hewett because he directed the appeal.

According to the statement, he was asked to prefer this appeal to another competent Court by the district magistrate. In every district there is a high officer, often the head of the ordinary magistrates, but in judicial matters subordinate to the judge of Quarter Sessions, and that district magistrate, usually known by another title as collector, is responsible for maintaining order in his district and seeing that the laws are properly put in force. For years and years it has been found that the ordinary criminal procedure in allowing appeals in cases of acquittal must be given to the High Court in a particular province, like our appeals to the High Court. There are several restrictions surrounding this right of appeal. First, it can only be brought by the direction of the Governor of the province. When I was in India the law stood in these terms, and I believe it is much the same, though I could not find the Statute at present in force. It runs thus thus:— The local Governor may direct the Public Prosecutor to present an appeal to the High Court from the original or appellate order of acquittal passed by any Court other than the High Court. When the law says that the Lieutenant-Governor may do such a thing within certain reasonable circumstances, and where the circumstances do require that there should be an appeal against an acquittal, he is bound to use his judgment and direct the Public Prosecutor to make the appeal. And, so far as I know the ways of Indian Government—and I have sat as a Sessions judge and a High Court judge, and have been an adviser to Governors in all those matters—we must not impute to the Lieutenant-Governor any personal or pecuniary interest. He is simply doing his official duty when he determines upon the most competent and responsible advice to lay this appeal against acquittal. They are not in the habit of making such appeals very often. It is impossible for us in the House of Commons to sit as a legislature of revision upon the Legislature presided over by the Viceroy and Governor-General of India. That is a highly competent Legislature, and when they make these Criminal Procedure Codes they have with them the representatives of all the provinces and their Law Officers up to the highest. They have an immense lot of information and years and years of experience to bring to bear upon the questions they are considering.

I ask the House to pause before they think of suggesting to the Government of India that they should alter particular things in their Procedure Courts. After all there are many things in the Indian procedure which are different to ours. I think it is a good procedure. Judges dealing with cases of murder have often to pass more lenient sentences than may be allowed here, and you must take the procedure as a whole and as hanging together. Many people here would fear to enact a code of law which allowed a judge, when he thinks the verdict of a jury to be wrong and justice requires him to say so, to say "I will not accept that verdict: I believe the man is guilty or innocent, as the case may be," and then to submit the case to the High Court, where two or three judges sit together as judge and jury, and have power to pass conviction upon a man acquitted or acquittal upon a man convicted. You cannot begin to interfere with procedure in one part without equally disturbing other parts, and I think no case has been made out for saying that the procedure is wrong. The High Courts are rather chary before they will upset a verdict of acquittal. They will not do so unless the whole case is roost thoroughly established; in fact, the subject is considerably protected in all these matters. My hon. Friend the Under-Secretary for India has spoken of the Judicial Commissioners as having the same status as the High Courts; that is not the way I would put it. I have been a Judicial Commissioner myself for seven years, wielding the whole power of the High Court in my sole person. The Judicial Commissioner is a substitute in the backward provinces and has got a less rate of salary than the judges of the High Court. It is often said that the Judicial Commissioner should be abolished and the High Court substituted, and that was done in Burma, where I was Judicial Commissioner, and in the Punjab, another great province that used to be under a Judicial Commissioner. They have the same power as the High Court, and they use their powers with ordinary judicial discretion, fairly and conscientiously. I think we can safely leave ever the question of amending those laws to the Legislature in India, which is well accustomed to legislating on these subjects and easily accessible and have particular advantages.

10.0 P.M.

With regard to this particular case, I would not be inclined to arrive at a conclusion before I get all the facts, and until I have seen the judgment and know something more about the case. We have not had copies of the judgment to show whether it is a clear ease or whether the decision was against the weight of evidence or not. I think many Governors in such a position would have respited the sentence. It is the policy of the law that criminal sentences should within reasonable time, without much delay, be carried into execution. On that ground alone the Judicial Committee of the Privy Council have power to hear appeals from India and the Colonies, but they refuse to do so because it might paralyse the law, and in that way the order of the State might be disturbed. It is one thing not to use the discretion rightly, but it is another thing to have erred against the free rules which have been laid down by the Government of India. It is well to withhold our judgment and wait until we have full information on the subject. Sir John Hewett has risen to a great and high place, and he has an excellent record behind him, and it would be altogether against my sense of fairness to say anything against him now or to imply that he has not deserved all the honours and decorations he has received from the Sovereign. Far be it from me to pass any such criticism, which would be quite against his career and the inference we ought to draw from it. Nay I add that, after considerable experience in all these Courts, I may say that I have no reason to suppose that the Government of India are not careful and scrupulous as regards carrying out the fearful sentence of the judge that a man shall hang by the neck until he is dead. It is a dreadful thing to have to sign a death warrant of that sort. I have joined at times when sitting in the highest Court of Appeal in saying that we accept the evidence on which a man has been convicted, and we see no judicial reason for modifying the sentence of death. In some cases the Members of the Government wanted to consult with me, some of them giving reasons why mercy should be exercised. It is an accepted maxim in all these cases that mercy should be mingled with justice, and I have always done everything I could in that directioon. Certainly it is a serious thing that two men should have been executed in this way. I think this discussion and the proposed alteration in the rules may deal with that question, but I would ask hon. Members to suspend their judgment until we have had a clearer statement of the fact, so that we may judge whether an appeal would have made any difference in the case of these men or not.

Mr. JOHN DILLON

Knowing absolutely nothing of the circumstances of this particular case, I approach this question with an absolutely open mind. I agree with what the hon. Member for Roxburghshire (Sir J. Jardine) has said that we are incompetent to adjudicate upon or suggest alterations in the criminal law of India. To most of us India is a very strange country, but, at any rate, there are certain elementary principles which do concern us, and in regard to them a great responsibility rests upon this House towards the people of India, because we prescribe the Government of India, and the people of India have no control over their own Government. When appeals of this kind come before the House of Commons that is the only real chance we get of considering them, and there is a deep responsibility cast upon this House to give them full and fair consideration. The Under-Secretary for India read out the rules, and I have no hesitation in saying that they are unjust and almost inhuman. I think they ought to be altered, and this House is perfectly competent to adjudicate upon them, because the justice or injustice of those rules can be judged by any ordinary man. The hon. Member opposite asks us to suspend our judgment until the case is investigated. I have sat here for thirty years, and I do not think I have heard three effective debates upon Indian questions during the whole of that time. The opportunity of discussing the affairs of India are very rare. The Budget of India, of course, comes round once a year. I may be permitted to say here that over and over again I and many Members of the Radical party have appealed to the Government to place the salary of the Secretary of State for India on the Estimates, so that we could properly discuss the administration of India, but it has always been refused. Supposing this case is postponed—in must be postponed in due course—when will we have another opportunity of discussing it? I doubt whether we shall hear of it again. First of all, I say that the rules are bad, and ought to be altered. I think the Under-Secretary himself indicated that he agreed with that view. I do not think Sir John Hewett did violate the rules, as well as I could understand them, but, without professing to have any expert knowledge of Indian affairs at all, as a man, it appears to me inhuman and outrageous that a man in the position of Sir John Hewett, who must have made up his mind on the facts—first he directed the retrial, which he would not have directed if he had thought the judge in the first instance had given a proper verdict, and, secondly, after the conviction in the Higher Court he reviewed the evidence—should be able to refuse a petition for mercy. He was in a double sense a party to the prosecution, and he must have made up his mind as to the guilt of the prisoners. He refused these unhappy men who were sentenced to death the opportunity of petitioning to the highest Court of mercy in the land, which they had a right to do, and refused it on the plea that because the execution was fixed for a certain date the Supreme Government of India would not have the forty-eight hours required to consider the petition.

I say, no matter what the record of Sir John Hewett, that was an inhuman thing to do. I say that human life ought to be treated as sacred in any country, and, no matter what the colour of the unhappy person may be who is the victim of a sentence of this kind, he ought, at all events under the British flag, not to be treated in that way. The law might say his appeal could go no further than the Governor of his province, and we might think that was just or unjust; but that is not the law. According to the present criminal code of India, the unhappy criminal who lies under sentence of death has a right to appeal to the Supreme Government of India, and I say that the man who stands between him and the highest tribunal of mercy is offending against the highest dictates of justice; and to say in excuse of conduct of that character, that there is not time because the execution is fixed in such a way that forty-eight hours could not be given to the Government of India to give these unhappy men their last chance of life, is a plea which cannot for a single moment stand or hold water in this House. What are we told when this argument is put forward? We are told that it is a settled principle of civilised Governments, and especially in India, to expedite execution.

Mr. MONTAGU

If I said that, I said something I did not mean to say. I meant to say that it was accepted in all countries that it is not a merciful thing to postpone an execution if, in the opinion of the responsible person who is called upon to exercise the unpleasant and responsible task there is not any likelihood of the man escaping from his sentence. That is what I meant to say.

Mr. DILLON

Observe how that statement fits in with what I am saying. It is not a merciful thing to postpone execution if in the opinion of the man who has power to postpone it the circumstances may not lead to the exercise of mercy by the highest tribunal. What an amazing statement! It stands already proved ex hypothesi that in the opinion of Sir John Hewett there were no extenuating circumstances, and that the prerogative of mercy would not probably be exercised by the higher tribunal. But what right had he to judge, and what right had he to deprive these men, for the sake of forty-eight hours, of their last chance of life? Of course, we admit that he did not break the law, but is that the way for a man to judge a case of life and death? I think the rules are unjust; but even under those rules a man who had a humane mind would say: "I have judged this case twice and consider that there are no extenuating circumstances, but the law gives these men another chance, and far be it from me to stand between them and their last chance." That would be the natural view any man would take under the circumstances. Once you concede the right to appeal to the fount of mercy, I say that in the view of any humane man a person lying under sentence of death ought to have that last chance, no matter how strong the conviction may be that his crime is proved and that he deserves his fate. Therefore, it is not a question of surveying the whole policy of the Indian Government and looking into the question of the Indian criminal code. I say that, this is a subject on which, as unfolded by the Under-Secretary himself to-night, any man of ordinary intelligence and humanity can form a judgment without any expert knowledge of Indian affairs at all, and, in spite of the appeal made, I think Sir John Hewett, judging him by the account given by the Under-Secretary, made a very grievous mistake, a mistake which I hope and trust he will regret. These men were treated with a lack of humanity, and were denied a chance which in any civilised country in the world all criminals are entitled to expect, and I venture to say do obtain, the chance of appeal to the highest and last tribunal.

Mr. T. E. HARVEY

There is just one fact on which I hope that the Under-Secretary will give the House a rather fuller assurance. I am sure we all heard with great satisfaction the statement that there is to be a revision of the procedure in these cases. The right hon. Gentleman stated that in cases where there was after acquittal a reversal of a sentence there would be an alteration in the procedure adopted. Will he undertake that in such cases where there is an appeal for mercy, not only shall that appeal always go forward, but in those cases where there has been a reversal of the sentence there shall be a postponement of execution, in order that the appeal for mercy may be effective? That is a point on which, whatever may be said about this particular case, all parties in the House will be agreed.

Mr. MONTAGU

That is the alteration which I suggested. It would be a most horrible form of cruelty to insist that an appeal should be forwarded to the British Government without giving time for consideration.

Adjourned at Seventeen minutes after Ten of the clock