Lords Sitting of 18 March 1850

MINUTES.
CERTIFICATE OF THE CLERK OF THE CROWN—That the Earl of Airlie and the Lord Blantyre had been elected Representative Peers for Scotland in the room of David, Earl of Airlie, and John, Lord Colville, of Culross, deceased.
PUBLIC BILLS,—1a Consolidated Fund, 3a Commons Inclosure.

WATERFORD, WEXFORD, WICKLOW, AND DUBLIN RAILWAY.
The Order of the Day being read for the attendance at the bar of the House of Mr. Charles de Lacy Nash, secretary to the committee of the company, the Yeoman Usher informed the House that Mr. Nash was in attendance; whereupon, on the Motion of Earl GRANVILLE, he was called in and examined. He stated that he was not the secretary of the Waterford, Wexford, Wicklow, and Dublin Railway Company, but that he was the secretary of an association of shareholders in that company, and that he had sent in to the Railway Commissioners, of his own accord, a copy of a return from the chairman and secretary of that company, because an order had been made by their Lordships in last March for the production of that return, and great delay had occurred in obtaining it from the company. The original return was made under an order of their Lordships issued in March, 1846, and his copy of it—which was a literal and exact copy, without any addition on his part—was made by himself from the original in the Private Bill Office. He had written on his copy "Courtown, chairman," in his ordinary handwriting, and not with any intention of having it supposed that it was the genuine autograph of that nobleman. He had no power to put in the original return, nor could anybody put in that return without the authority of Parliament. If the original had been missing ever since he made his copy, he knew nothing about it, and certainly had not abstracted it himself. His object in sending in his copy to the Railway Commissioners was to make the case of the shareholders of that company known to that body. A similar copy had been exhibited to the solicitors of Lord Courtown, and they had admitted it to be correct. He had never heard till that moment that the original return was now lost.
The witness was then ordered to withdraw.
LORD BROUGHAMmoved that the evidence be printed, and that the witness be
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ordered to attend at the bar again on Friday next.
Ordered accordingly.

APPELLATE JURISDICTION OF THE HOUSE OF LORDS AND OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
LORD BROUGHAMthen rose, in pursuance of his notice, to call the attention of their Lordships to this subject, which was one of vast importance to the administration of justice, not only in these kingdoms, but also in our vast colonial empire. If we chose for the purposes of our ambition to possess a boundless empire, on which the sun never sets—if we chose to "govern the nations of the earth," it was our duty—still using the language of the Psalms—" to judge the folk righteously;" and, without so judging them, and without securing for them a due administration of justice, never could we expect that they should be "joyous and glad" in our dominion. That we did upon the whole administer justice in a satisfactory manner—that our rule over the nations had been attended with infinite advantage to them, when compared with the detriment inflicted by other nations by their rule over their foreign dependencies—was a proposition so self-evident—was a proposition to which all history bore testimony, and which even our rivals did not attempt to deny—that he would not stop to waste a word in an attempt to prove it. Nevertheless, it was not to be denied that our judicial system was yet very imperfect and never ought we to stop in our reflections upon the advantages which we had gained by it so long as we left any flaw or defect unamended in it, or any improvement unmade which it was within our power to make in it. He begged their Lordships to keep this remark of his constantly in their mind, in case hereafter his statement should appear to be inconsistent with itself, and should appear to be of a complaining aspect, or should look as if it were casting discredit on our judicial system. It would be most unjust to do so. He admitted that our system contained in itself many advantages; he believed that, in some respects, it came near to perfection; but he could not refrain from admitting that in others it wandered wide from the mark. Still, in comparison with the colonial system of other countries, it did almost deserve the title of perfection. He had compared it often, as his duty prompted,

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with other systems, and his conviction was strong and unhesitating, and he should be very wrong in endeavouring unnecessarily to find fault with it. It, however, would be no defence for us, if we did not make our system as good as could be, that the system of others was quite as had as could be. He would now proceed to call the attention of their Lordships to the result of certain papers for which he had moved, and which were now on their table, and which threw some light on our judicial system at home, in the Channel Islands, and in our Colonies abroad not forming part of our possessions in the East Indies, and also those in the possessions of the East India Company. He had asked for those returns because he thought that they would throw light on our appellate jurisdiction, for that was a test by which to try our administration of justice in those Colonies from which the appeals proceeded. He had moved for accounts, for the last twenty years, of the number of appeals in the three great branches of our judicial system in Europe—he meant in England, Scotland, and Ireland—and also for accounts, for the last ten years, in two other great branches of our system—in the Colonies of the Crown, and in the possessions of the East India Company. At first sight it appeared extraordinary that there should be such a great disproportion between the number of appeals brought before the House of Lords, and the number brought before the Judicial Committee of the Privy Council, and that the jurisdiction, which distributes justice among 100,000,000 of inhabitants both in the native courts and the Supreme Court of Sudder Adawlut, should afford a number of appeals so inferior to that accruing from those courts which he might designate, if not as English, certainly as British courts. Now, the number of appeals heard, decided, and determined he-fore their Lordships in the last twenty years ending in February, 1850, were, "from England, 140; from Scotland, 534; and from Ireland, 75; but from all India, with that immense body of feudatories, and with that immense number of local courts, and with the supreme courts of Sudder Adawlut, there had only been 66 appeals in the last ten years. He confessed that he had been somewhat surprised at this discrepancy until he came to consider its origin. The cause was, not that there was more contentment with the decisions in India than with those in the mother country; no such thing; but that the expense
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of carrying on an appeal to the other side of the globe was much more than that of bringing it from any part of Great Britain and Ireland to a body sitting in this metropolis. There was also another reason, and that was this—their Lordships did not allow appeals to be made in causes where the matter in dispute was below a certain value. Now as to the result of these appeals. Of the 140 appeals which had been heard from the various courts in England, 140 in number, there were only 38 in which the decree or order had been reversed or varied, being about 273/4 per cent on the whole. Of the 534 appeals which came from Scotland, there were only 153 cases in which the decree or interlocution had been reversed or varied, being about 28J per cent on the whole; and, of the 75 appeals from Ireland, only 34 in which the decree or order had been reversed, being 44 per cent on the whole. In the same time, in writs of error confined to equity proceedings, we had heard and determined from England and Ireland 62 cases. Of these 41 came from England, and seven ended in reversals; and 21 came from Ireland, and ended in six reversals. But this was nothing when compared with the reversals upon appeals coming from the Consistorial and Admiralty Courts of this country. First, he would state the appeals coming from the Consistorial and Admiralty courts of London. The appeals were 66; the reversals were 17. Then, from the Consistory and Chancery of York, the number of reversals was in much larger proportion. The noble Earl opposite, formerly his Colleague for the county of York (the Earl of Carlisle), shook his head incredulously at that statement; but it was nevertheless correct. There were but five appeals, but in four of them the sentence or order had been reversed or varied. From the Commissioners of Slavery Compensation there had been three appeals, in all of which the award had been varied; from the Commissioners on French Claims, one, in which the award was affirmed. In 16 appeals from the Channel Islands and Isle of Man, there were 5 reversals. From the Colonies other than the East India Company's possessions there had been 83 appeals, in 32 of which the judgments had been reversed. From the East India Company's possessions in India, there were, from the native and supreme courts, 66 appeals, in 43 of which the judgment had been reversed or varied, being about two-thirds.

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But it was singular enough that a much greater proportion of reversals had taken place in the appeals from the high and supreme courts than from the Sudder or native courts. Thus, of 41 appeals from the Sudder courts, there had been 21 reversals, or about one-half; while, of 25 cases of appeal from the supreme courts, there were no less than 22 reversals; making a proportion of 7 reversals to one affirmance—a very large proportion. When the Judicial Committee were administering justice in these cases in the last resort, they were administering the law with which they were often necessarily most imperfectly acquainted. When they had to deal with cases from the supreme courts of India where the law was like our own, they were bound to know it, and to be competent to decide; but the law in the Sudder courts of India—that was to say, in the Zillah courts, in the Provincial courts, and the Sudder Adawlut courts, with their appeal to the Judicial Committee of the Privy Council—in the class of cases from these native courts a knowledge of the Hindoo law in all its niceties was required, and the want of acquaintance with Hindoo manners and customs occurred to puzzle and hamper them. The character of the natives, so necessary to the due administration of the law, was unknown to them except by report, and yet it was highly essential that the judges of a final court of appeal should know their peculiar habits of mind with regard to the giving of evidence, in order that they might be enabled to examine and weigh their testimony, and the documents in support of that testimony, on both sides. It was a truly painful thing to observe what a vast mass of perjury in this class of cases came before them in the testimony which the Judicial Committee had to weigh, and what a mass of forgery there was to support the perjuries, so that it was hardly possible for those who were accustomed to examine cases from the English and Scottish courts to imagine how so much perjury and forgery could be imported into the administration of justice. What was the result? That the judicial Committee was left to trust very much to the judgment of the Sudder courts, who must be supposed to see and know more of the natives, and to be better acquainted with their habits and customs. They were led to suppose that what they—the Judicial Committee—did not know to be perjury, the judges of the native courts saw
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to be such; and, seeing that the law, as well as the habits and character, of the natives was likely to be so much better known by the judges of the native courts, a judge of appeals at home found himself almost inevitably compelled to give more than the cast of the balance in favour of the native court. Was it not clear that the judges at home must naturally lean to the affirming of decisions where questions had arisen in the native courts, more than in cases from the supreme courts, where the law was like our own? That was one reason why the decisions were more likely to be unfavourable in a greater number of cases to the supreme courts than to the Sudder courts. Then, owing to the high authority of the supreme court, and the great expense of prosecuting appeals from its decisions, parties would not appeal unless in cases where there was a great probability, if not an absolute certainty, of succeeding, and this might explain the great proportion of reversals in those appeals. It appeared that there were from the Sudder Court of Madras 8 appeals and 6 reversals; from the Sudder Court of Bombay, 8 appeals and 4 reversals. Prom the Supreme Court of Madras there had been 5 appeals, in all of which the judgment had been reversed; and from the Supreme Court of Bombay 8 appeals, in all of which the judgment likewise had been reversed. Thus, from the two Supreme Courts of Madras and Bombay there had been 13 appeals during the last ten years, in not one of which judgment had been affirmed, but the whole 13 had been reversed. Thus, in English appeals there had been between two and three affirmances for one alteration; in English writs of error, five affirmances to one reversal; in Scotch appeals, two and three affirmances for one alteration; in Irish appeals, between two and three affirmances for one alteration. In appeals from the London Consistory Court, three affirmances to one reversal; from the York Consistory Court, four affirmances to one reversal; from the Channel Islands, four affirmances to one reversal. In appeals from the Colonies and Plantations, less than two affirmances for one reversal, but that was in the last two years; in the whole sixteen there had been an equal number of affirmances and reversals. Then, in the appeals from the native courts of India, there had been nearly as many affirmances as reversals, and in the supreme court there had been seven reversals for

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three affirmances. He did not think these returns ought to discourage them, but, on the contrary, ought to induce them to labour hard, and to endeavour, by increased diligence, to improve the administration of the law. He had heard, with much pleasure, of valuable suggestions from India with respect to improvements in the system of pleading, both in the supreme and native courts, and which, if they were framed upon sound principles, would be of inestimable benefit, not only to the suitors but to the judges in Indian courts, and to none more than the Judges upon the Judicial Committee, who would not only have a great diminution of the cases that came before them, but, still more, a diminution of that responsibility which now pressed upon them, whose errors were fatal, and who had to judge upon matters regarding native manners, customs, and laws, which were now veiled in obscurity from them. He trusted that the Government would proceed in exercising the most careful selection of persons to fill the high offices of judges in our colonial courts; and it gave him very great satisfaction to know that the East India Company were sparing no pains and expense in improving the education of those officers to whom would be entrusted the duty of presiding in the native courts. This work of education, begun in the splendid reign of the Marquess Wellesley—the greatest benefactor India ever had, and who prided himself upon no one success and no one effort more than that he had made in India to improve civil education, was now being followed up by the East India Company, in that admirable establishment for the education of young men at Haileybury, which he had been so much gratified, within the last forty-eight hours, to know was in successful operation. They had another college at Addiscombe, but that was a military establishment, and he knew nothing about that. But the judges in the native courts were obtained from the civil service of the company; and the young men at Haileybury, who went out as writers, were qualified to exercise these responsible functions by being carefully educated at Haileybury by the most learned professors, among whom he might mention Dr. Empson, the Professor of Law, and his excellent friend Mr. Jones, the Professor of History and Political Economy. Here these young gentlemen, to the number of eighty or ninety, were being instructed in Law, in History, in the Oriental languages.
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and every thing that could fit them for the discharge of their future duties, and were living in a state of perfect harmony with their professors and each other. And this institution was a gratifying proof of the very great improvement effected during the last twenty-five years in the education of the judges of the East India Company's possessions. Great had been the benefit to India. But there was still much room for improvement, and the Government would, he trusted, take the utmost care in sending out good judges, not only to India, but to our other colonial possessions in the east and west—in Ceylon as well as in Jamaica and Barbadoes. He did not think that in any office it was more important that care and discretion should be exercised by the Colonial Minister than in selecting judges for the colonies. When he (Lord Brougham) held the Seals, he was asked to recommend the most suitable persons for these offices, but his answer was—Far be it from me to recommend fit and proper persons for such responsible offices, when you do not give me the means of going into Westminster Hall with such a salary and such a retiring pension as would enable me to obtain qualified men for these situations. Give him the means, and he would not fail to find such persons; but if the Government, from a miserable regard to the paltry and wretched saving of a few hundreds of pounds—if by that worst cruelty to the colonists they refused their judges such salaries and retiring pensions as would enable them to obtain the services of competent men—then he (Lord Brougham would not recommend from Westminster Hall judges for the West Indies, for Canada, or for any other colony. The history of nearly all colonial squabbles almost entirely depended upon this wretched parsimony. The Government were obliged to take for colonial judges, not the best men, but the best men they could get—either young men without experience, who had never held a brief, or men who had tried the profession and who had failed in it. Well, the young man who had never held a brief, finding himself the second man in the colony, sought to become the first, and a squabble thereupon took place between him and the Governor. It was the most despicable want of wisdom and true and rational economy that would starve the administration of justice in order to save a paltry sum which would have been much better saved in any other department. He thought the greatest pains

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ought to be taken to amend the law with regard to our judicial system. He wanted to show that the amount of reversals was no test, and he had brought no complaint against any one. The resolutions were merely resolutions of fact, and all that he would do at present would be to lay them upon the table and move that they be printed. The noble and learned Lord then presented the following results of the Returns which had been delivered to the House:—
"1. That it appears from Returns before this House, that the number of appeals from England, Scotland, and Ireland to this House, beard and determined during the 20 years ending February, 1860, has been—from England 140, in 38 of which the decision or order has been reversed or varied; from Scotland 534, in 153 of which this decree or interlocution has been reversed or varied; from Ireland 75, in 34 of which the decree or order has been reversed or varied.
"2. That there have been in the same time beard and determined 62 writs of error from England and Ireland, in which 13 reversals have been had, there having been 41 such writs from England, and 7 reversals—31 from Ireland, and 6 reversals.
"3. That there have been in the 10 years ending February, 18S0, 66 appeals to the King in Council from the Consistorial and Admiralty Courts of London, in 17 of which appeals the sentence or order has been reversed or varied; from the Consistory and Chancery of York 5, in 4 of which the sentence or order has been reversed or varied; from the Commissioners of Slavery Compensation 3, in all of which the award has been varied; from the Commissioners on French Claims 1, in which the award was affirmed.
"4. That there have been in the said 10 years 16 appeals from the Channel Islands and Isle of Man, in 5 of which the judgment has been reversed or varied.
"5. That there have been in the said 10 years from the colonies and plantations, other than the East India Company's possessions, 83 appeals, in 32 of which the judgment or decree has been reversed or varied.
"6. That there have been in the said 10 years 66 appeals from the Company's possessions in the East Indies, in 48 of which the judgment, decree, or order, has been reversed or varied; 25 from the Supreme Courts, in 22 of which the judgment has been reversed or varied. That there have been from the Sudder Court of Madras eight appeals, in six of which the judgment has been reversed or varied; from the Sudder Court of Bombay eight, in four of which judgment has been reversed or varied; from the Supreme Court of Madras five, in all of which the judgment, or decree, or order, has been reversed or varied; and from the Supreme Court of Bombay eight, in all of which the judgment, decree, or order has been reversed or varied.
"7. That the average proportion of alterations of decrees or orders appealed from in England to the whole appeals has been 27 1–7th per cent; in Scotland, 28 3–5ths per cent; in Ireland, 45½ per cent; in the Channel Islands, 31¼ per cent; in English writs of error, 17 per cent; in Irish writs of error, 28½ per cent; in Consistorial and Admiralty appeals, 36 per cent; in York Consistorial
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appeals, 80 per cent; in appeals from Bengal native courts, 44 per cent; in those from Madras native courts, 75 per cent; in those from Bombay native courts, 50 per cent; from Bengal Supreme Court, 75 per cent; from Madras Supreme Court, 100 per cent, from Bombay Supreme Court, 100 per cent; Slave Compensation Commissioners, 100 per cent—there being in these cases no affirmance.
"8. That in English appeals there have been between two and three affirmances for one alteration; in English writs of error, about five affirmances for one reversal; in Scotland, between two and three affirmances for one alteration; in appeals from Ireland, somewhat more than one affirmance for one alteration; and in Irish writs of error, between two and three affirmances for one reversal.
"9. That, in appeals from the London Consistorial and Admiralty Courts, there have been nearly three affirmances for one reversal; in those from the York Consistorial Court, four reversals for one affirmance; in those from the Channel Islands, above three affirmances for one reversal.
"10. That, in appeals from the colonies and plantations other than the East India Company's possessions, there have been less than two affirmances for one alteration.
"11. That, in appeals from the Indian native courts there have been nearly as many reversals ad affirmances; and, in appeals from the Supreme East Indian Courts, seven reversals for one affirmance."
After a few words from the Marquess of LANSDOWNE,
Returns ordered to be printed.

SUNDAY LABOUR IN THE POST OFFICE.
The EARL of MALMESBIURYalluding to the petitions which were presented to their Lordships a few days back, praying that all labour should cease on Sunday in the Post Office throughout the kingdom generally, said that he did not concur in the prayer of these petitions, and he believed that the parties who signed them did not properly understand the object of the petition. This was the way in which they were got up—a man was asked whether he was not desirous of keeping the Sabbath holy, and of course he answered in the affirmative. He was then asked whether he did not think it a hardship that the men engaged in the Post Offices in the country should not be treated on the same terms, with regard to working on that day, as those engaged in the Post Office in London, and to that question he also very naturally replied in the affirmative; and thus a large number of signatures was obtained throughout the country in favour of the abolition of work altogether in Post Offices on Sunday. He should like to know from the noble Marquess (the Marquess of Clanricarde) whether, as far as

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his experience enabled him to speak, if the mails were to stop running on Sunday, any system could be contrived by which the letters could be delivered as often and as steadily as at present. It appeared to him (the Earl of Malmesbury) that, if the prayer of the petitioners were granted, the effect would be that people living about 100 miles from London would have two days in the week in which their news would be forty-eight hours old, instead of one day as at present; that in many cases, he believed, would be a most cruel inconvenience, and occasion a great deal of anxiety.
The MARQUESS of CLANRICARDEcould have wished that a question of this sort had been put to him much earlier in the Session, as he had been subjected to very gross misrepresentations upon the question of Sunday labour. Even noble Lords, Members of that House, had gone so far as to publish letters in newspapers commenting in very harsh terms on his conduct on this subject. If the question had been brought at an earlier date before the House, an opportunity would have been afforded to him of meeting his accusers. As the noble Earl had not given him any notice of his intention to put this question, the best answer which he could give to him at present was, that he could assure him that he (the Marquess of Clanricarde) would lay on the table of the House reports which would clearly set forth what had been done with respect to Sunday labour in the Post Office within the last two years, and what was the view entertained on the question by the Post Office authorities. His own opinion was that it would be impossible, having due regard to the convenience and requirements, and indeed he might call them the absolute necessities of the community, to stop the transmission of the mails during the whole of Sunday. There was no duty, religious or otherwise, which imposed that necessity upon us. But he was the more prepared to lay the papers to which he had alluded on the table of the House, since notice had been given in the other House of the intention of an hon. Member to ask the Government for information upon the subject, and these returns, he thought, would give the noble Earl all the information he desired.
The BISHOP of OXFORD, after the promise made by the noble Marquess, would not then enter into the general question of stopping the mails on Sunday, though he confessed he did entertain a strong opinion on the subject.
LORD BROUGHAM: Do you mean to stop them altogether on Sunday?
The BISHOP of OXFORD: Yes; but his purpose in rising was to refer to what fell from the noble Earl opposite (the Earl of Malmesbury). He stated that the petitions presented on this subject were petitions signed by a very large number of people who knew very little what they were signing about, and that they were induced to sign by being told that it would be a good thing for them if they signed the petitions. He (the Bishop of Oxford) had a large number of these petitions to present to their Lordships, and he felt bound to say that the observations of the noble Earl could by no means apply to them. They knew perfectly well what they had asked for, and they believed that if it were granted it would be beneficial to all interests in this country that the business of the Post Office generally should be stopped throughout the country on Sunday.
The MARQUESS of CLANRICARDE: Nobody could feel more deep respect for the motives of the parties who had signed the memorials on this subject than he did, and, in proof of that feeling, he might point to the diminution of Sunday labour in the Post Office which he had endeavoured, as far as his duty would permit him, to effect. The report which he would lay before their Lordships would disabuse the public mind. LORD BROUGHAM wished to know whether the parties who would stop the transmission of the mails all over the country, would stop also the mail-packet service; because he was puzzled to know how that was to be done?
The EARL of HARROWBYsaid, that having sat in a Select Committee on this subject, he could state that the merchants and men of business in Liverpool and other large towns would not object to be placed upon the same footing as the mercantile men of London with regard to Sunday deliveries of letters. These were not persons to be led away by fanatical feelings.
LORD BROUGHAM: The persons who advocated these extreme views inflicted the greatest mischiefs upon the observance of the Sabbath. He regarded the observance of the Sabbath, not only as one of the most important religious duties, but as most important in a political sense. But these extravagances tended to make that unpopular which would otherwise be a most popular institution. Did the persons who cried out against the transmission of mails on Sundays wish to stop the mail packets as

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well? Would they have the steam-engine stopped, the steam blown off, and the vessel "brought to" from Saturday night until early on Monday morning—blow fair or blow foul? Let it be remembered that, although the sea was the "highway of nations," there were no inns on that road.

THE CASE OF MR. RYLAND.
The DUKE of ARGYLLsaid, last Session he had occasion to call the attention of the House to the injustice committed on Mr. Ryland respecting an office which he held in Canada. He was in great hopes that that statement of his case, even in such hands as his, might have led to a reconsideration of the case, either on the part of the Government at home or at the Colony. But he regretted to find that nothing had been done. He did not think it his duty to let it rest where it was. After a full and careful investigation of the case, he retained the opinion that he had already strongly expressed in the House. Understanding that the papers on this subject were about to be laid on the table of the House of Commons, he rose now simply to move that they be produced in their Lordships' House as soon as possible. He probably would found a Motion upon them after the Easter recess. He earnestly hoped that when they were produced their Lordships would pay some consideration to the case; and at a time like the present, when figures and facts were important, and when most righteous measures were being taken to secure compensation to British subjects for injuries received at the hands of foreign Governments—injuries sustained not only by subjects but servants of the Crown—he hoped that the debts in this instance would not be neglected. His Grace then moved an Address for copies or extracts of the correspondence and memorials or representations relative to the claims of Mr. Ryland, formerly Secretary to the Executive Council of Canada.
EARL GREYsaid, there was no objection on the part of the Government to produce without delay in that House the papers which had been moved for in the House of Commons. He believed that the case of Mr. Ryland had been treated throughout with very great consideration and liberality, and a perusal of the papers justified him in stating that no charge could be made out either against the Imperial Treasury or the Colonial Office on that subject.
Motion agreed to.
House adjourned till To-morrow.