HL Deb 26 June 1857 vol 146 cc423-33

THE EARL OF ALBEMARLE rose to present three petitions from the inhabitants of Calcutta; of British residents in Calcutta and the Mofussil districts of the Presidency of Fort William in Bengal, and not in the service of the East India Company; and landed proprietors, Indigo plan- ters and merchants and traders in Calcutta, and the lower provinces of Bengal; against the abolition of Her Majesty's Supreme Court of Calcutta. The prayers of those petitions were in some degree different, but they all concurred in condemning those changes in the criminal law of India which were understood to be in contemplation, and which were recommended by the Indian Law Commissioners. Those changes would affect nearly every principle to which the people of this country attached importance. They would affect the implied conditions upon which British subjects had been induced to invest their capital in India, and would, if carried out, have the effect of driving most of the wealthy capitalists from the country. The petitioners were active, intelligent men, by whose exertions the resources and wealth of India had been developed, who sent annually £13,000,000 worth of produce to this country, besides £7,000,000 in one article—opium—to China. Upon that article they paid taxes which realized £3,500,000 a year, and without which the Indian Government would be reduced to a state of complete bankruptcy, its normal condition being a deficit of £2,000,000 annually. The petitioners complained of two sets of measures; one was actually under the consideration of the Legislative Council of India—the creation of a new procedure. To that the petitioners offered no objection, believing that any procedure must be an improvement upon the discreditable state of anarchy in which the courts of that country had been for nearly a century. They did, however, object that a new class of magistrates was to be created, and that British residents would be deprived of the protection of the laws of their country, if the functions of the Supreme Court were to be handed over to the magistrates and police of the Mofussil or Provincial Courts. The petitioners objected to the amalgamation of the Supreme Court and the Sudder Courts—that was of the Queen's and the Company's Courts—believing that the effect of that amalgamation would be not to raise the Sudder Courts to the estimation of the Supreme Court, but to lower the condition of the British residents in India to the miserable condition in which the Natives were now placed. The petitioners further objected to being deprived of the writ of Habeas Corpus and of trial by jury, as recommended by the Commissioners. The petitioners claimed, as heretofore, an exemption from the criminal jurisdiction of the country courts, until those courts should he presided over by competent and professionally qualified judges. After the comments which had already been made upon the report of the Lieutenant Governor of Bengal, it was unnecessary to quote much evidence; but, in order to show the unanimity which prevailed upon this subject, he (the Earl of Albemarle) would just read an extract from one of the petitions:— The criminal courts of the East India Company have been the dread and terror of the people. They are used as instruments of outrage and persecution. Convictions in them are regarded as evidence as much of misfortune as of guilt.

These courts gave immunity to the gang robber, and were terrible only to the innocent. The gang robber knew, to borrow the words of the Lieutenant Governor, that "the administration of criminal justice in India is considered a mere lottery, in which the prizes are in favour of the guilty." That fact was also known to his unhappy victim. Although proverbially disposed to litigation and little inclined to show mercy to those who had injured them, the Bengalese could hardly ever be persuaded to prosecute for robbery, "from the full conviction," to borrow again the words of the Lieutenant Governor, "that the guilty men will be acquitted in the teeth of the clearest evidence." Mr. Halliday stated that very few of the heinous offenders were brought to justice at all. Of every 4,000 persons charged with heavy crimes one-half eventually escaped. That was not owing to the want of evidence, for evidence was too easily procurable; but because the magistrates and judges were perfectly conversant with the manner in which the evidence was obtained, knowing the torture that was inflicted upon the prisoner and the witness. He would give one example of the mode in which evidence was got up as stated by Mr. Kenny, an indigo planter, at a great public meeting held to petition against the "Black Act," as the measure with which the British subjects were threatened was universally called in India. Mr. Kenny related that in the village in which he resided, the body of a boy was found hanging to a tree. The circumstance was reported to the superintendent of police, and by him was brought under the notice of the magistrate. The latter took it into his head that the boy had been murdered, and told the superintendent that he was to bring the murderer before him within seven or eight days or to resign his office. The superintendent re- turned to the village and selected the master of the boy as the murderer. The man denied it. He was put to the torture, but persisted in declaring his innocence. The superintendent then seized upon an old woman in the neighbourhood. She was tied down; fire was applied to her nostrils and other tortures were resorted to which he could not describe to their Lordships unless they ordered the reporters to withdraw. The superintendent gained his object; the woman criminated the man, and both were brought before the magistrate. The woman then stated, that all she had said was under the influence of torture, and the magistrate dismissed the case, with a slight reprimand to the superintendent, telling him to be more cautious for the future. Plenty of similar cases might be brought before their Lordships; and it was with such administrators of the law that the British inhabitants of India were now threatened. Having now described the evil, he would proceed respectfully to suggest the remedy. He would suggest that the law should be administered by professional lawyers, and that there should be courts in proportion to the population and the area, including Benares, Patna, and other great commercial towns. He should also like to see unpaid magistrates, Native and European, wherever procurable; and he believed that if the courts were presided over by professional Judges, there would be no difficulty in finding an unpaid magistracy. He wished it to be distinctly understood that these courts should be open, entirely independent, and placed on the same footing as the Supreme Courts of our own country. He had high authority for stating that the lex loci should be the law of England. This was no new experiment. The law of England had been tried in four different countries. Persons of every religion, and of almost every nationality, had come under its influence, and it had given universal satisfaction from the security it offered to liberty and property, and the readiness with which it might be adapted to native laws and customs. But, it might be asked, how did he propose to pay the expenses of these works? The answer was a simple and obvious one—namely, that the same remuneration which was given to the incapable and incompetent boy-judges who now administered injustice should be continued to the professional lawyers. We now sent a young man of twenty out to India—a paid covenanted servant—for judicial employment. Till he reached the age of thirty, he could not properly be placed upon the bench. After twelve years more he was entitled to a retiring pension, so that while we paid him for twenty-two years' service he did only twelve years' work. The professional lawyer, on the other hand, educated himself; and he had reason to believe, from inquiries which he had made, that there were many gentlemen belonging to the English, Scotch, and Irish bars who would be perfectly ready to go out, provided they received the same salaries and retiring pensions that were now enjoyed by the servants of the East India Company. With these remarks, in the full conviction that the importance of the subject was recognised by Her Majesty's Ministers, he would lay the petitions on the table, unaccompanied by any Motion, hoping that the hands of the Legislative Council would be stayed until the question had been brought before their Lordships by one more competent to deal with it than himself.


regretted to be obliged to infer from the silence of the Government that no progress was really being made in the decision of what he would venture to call the most important branch of the great Indian question. The state of India now was such that British capital, enterprise, and skill could alone be expected to develope its resources, restore its finance, and make it a valuable possession, instead of a burden upon this country. The advice given the other day by the Chairman of the Court of Directors to the merchants and manufacturers of Manchester—that they ought themselves to extract a supply of cotton from the soil of India—was very sound and judicious; but the great impediment to the establishment in India of indigo planters and cotton speculators was the maladministration of justice. British people would not venture their persons or embark their property where they had not the protection of good laws. He differed from the petitioners upon one important point. They prayed that no alteration should be made in the Supreme Court. He thought the Supreme Court ought to be amalgamated with the Sudder Courts. The Supreme Court gave universal satisfaction to Europeans and Natives, and it was as good as the Company's Courts were bad. He wanted to know why, after the amalgamation had been announced by Sir Charles Wood, years ago, it had not taken place? It was said that it was necessary to refer the matter to the Legislative Council in India. From that opinion he dissented, and he reminded the noble Earl (the Earl of Ellenborough) who on a former occasion had expressed his concurrence in it, that in 1833 he entertained a different view. Upon the ground of retaining the independent character of the Supreme Court, which had greatly contributed to raise it in public estimation, he thought that Parliament was the place where such legislative acts ought to be done. He doubted, indeed, whether, legally, the Governor General and Legislative Council had power to touch the Supreme Court. A clause in the Act of 1833 provided that the Governor General should not have the power of making any laws or regulations which should in any degree affect any prerogative of the Crown or the authority of Parliament, and another clause provided that the Governor General should not abolish any of the courts of justice established by Royal charter. The Supreme Court was established by charter, and, therefore, the Governor General and Legislative Council had no power to abolish it. But if it were contrary to Statute Law to refer the power of amalgamation to the Governor. General and Legislative Council in India he submitted that the only proper course was to legislate here. The Judges of the Company's Courts, it should be remembered, were civil servants, who had received no previous legal training. The present system was one, therefore, which, in his opinion, required alteration. He saw no reason why a man should be sent out to discharge the duties of a magistrate in India simply because he had been called to the bar in this country; and there were, he thought, various modes by which a person's practical knowledge of the administration of the law might be tested before he received any such appointment. The noble Duke the Postmaster General had, upon a former occasion, stated that lawyers in this country got no regular professional education. That might be the case; but such men were never made Judges; and he might add that the magistrates in India disposed of cases of life and death without possessing the same competence to the discharge of their important functions which existed in the case of those who performed similar duties in this country, and without being exposed to the exercise of the same degree of watchfulness upon the part of the public. We sent out our civil servants to be collectors of revenue, and if it was found that they were not sharp enough for that position they were made magistrates, and even Judges after the lapse of a certain time. The system was, in fact, one of the most objectionable character, and he was only surprised that it could have lasted for so long a period. There were in our Revenue and Customs Departments in England men who discharged their duties in a manner the most admirable, but who, he should like to know, had ever thought for a moment of allowing them to preside at the Old Bailey or in the Court of Common Pleas? It was no wonder that petitions were submitted to their Lordships praying for some modification of a state of things which operated as a great grievance in India, and he trusted the petitioners would receive at their hands that redress to which they were entitled. He would conclude by asking whether it was within the competency of the Legislative Council at Calcutta to repeal, alter, or nullify an Act of the Imperial Parliament, and to assume the powers of a perfectly independent Legislature, by rejecting Bills laid before them in pursuance of announcements made to Parliament by the Ministers of the Crown.


deprecated these repeatedly recurring discussions on the subject of India. The question raised by these petitions was whether Parliament should act upon the recommendation of the Indian Law Commissioners as to the amalgamating of these courts; but, surely, Her Majesty's Government were not open to censure for not acting on that recommendation without due consideration. There was not that concurrence of opinion on the subject that the noble Marquess seemed to suppose. He had had sent to him a pamphlet which emanated from a gentleman who represented the interests of the Europeans residing in Bengal. It was stated that the Queen's Judges, the Company's Judges, as well as the Members of the Council, together with the writer himself, who represented himself as a lawyer and a law reformer, regarded the plan recommended by the Commissioners, as a whole, as crude and impracticable. If the Government in India were not competent to hit upon a plan for the formation of a new court, then it would be for the Imperial Legislature to take proceedings in the matter; but there was, he thought, good reason why Her Majesty's Ministers should suspend their judgment until they had received the Report of the Indian Government, His noble Friend asked whether it was within the competency of the Legislative Council at Calcutta to alter or nullify any Act of the Imperial Parliament. Of course it was not; but he (the Duke of Argyll) apprehended that there was nothing in any Imperial statute to prevent the Indian Government from making such changes in the Supreme Court as might seem to them to be expedient. They could not, indeed, abolish that court; but they might modify its constitution, or alter its jurisdiction. It had been enacted that it should not be lawful for the Governor General in Council, without the previous sanction of the Court of Directors, to create any new court with power of life or death over the subjects of Her Majesty. It was clear, therefore, that the Legislature had contemplated conferring upon the Indian Legislature, when acting with the consent of the Court of Directors, power to establish a new court which might deal with questions of life and death, and since the period to which he had referred a new Act had been passed greatly improving the constitution and character of the Indian Legislative Council; and, as no power granted by the former Act was repealed, it was plain that the intention of the Legislature had been that the Indian Legislature should have ample power of dealing with the subject. He would not enter into the difficult question as to how far it might be prudent to bring the European subjects of the Queen with in the jurisdiction of the Native Courts. He believed that it was most expedient that in those courts great reforms should take place, and it might be doubted whether bringing the European subjects of the Queen within their jurisdiction might not tend, from the additional publicity which would be given to their proceedings, to improve the administration of justice in them. The great difficulty in the administration of justice in those courts arose not so much from the character of the Judges as from the character of the suitors with whom they had to deal. It was admitted in all the petitions which had been presented against these courts that the great evil which existed arose from the facility with which false evidence might be adduced in them, and it did not appear by any means certain that that facility might not be removed by the introduction of English subjects of the Queen as suitors. The question, however, was one of considerable difficulty, and one with regard to which a great difference of opinion prevailed among persons best informed upon the subject. He would not express on the present occasion any opinion upon the sub- ject; but he must say that he thought that it would have been very imprudent for the Home Government to have legislated without referring the subject to the consideration of the Indian Legislature, and he had seen letters from Lord Canning, in which that nobleman expressed a distinct opinion that it would have been disrespectful to the new Legislature of India if the Home Government had proceeded to legislate without consulting them.


My Lords, I do not pretend to say that I have made myself master of the contents of the 500 pages of printed foolscap which contain the new code prepared by English lawyers for adoption by the Government of India, and I must confess that I have not the smallest intention of undertaking that labour; but I cannot imagine that any gentleman who prepared that code could ever have suggested the abolition of the Supreme Court in India. I cannot imagine that he can have done so, because the Legislative Council has not the slightest power of doing so. It has the power of altering the forms of proceeding in the Supreme Courts and their jurisdiction—a power conferred upon it by special provisions, but it has not the slightest power of abolishing them, and I cannot believe that the legal gentleman who prepared this new code can have thought that it was not intended by the Acts which have been passed upon the subject, to maintain, as courts of original jurisdiction in the capitals of the different Presidencies, the Supreme Courts. The most important questions which come before those courts are questions affecting the interests of the East India Company, and of gentlemen in their service; and, strange to say, whether it be from the badness of the advocates they employ, or from some other cause, the Government are almost invariably beaten. What the result might be if four or five gentlemen in the service of the East India Company were associated with the Judges of these courts, I cannot pretend to say. With regard to the general question, I believe the case to be, that there is no power of compelling the Legislative Council of India to pass any law whatever. Parliament has reserved to itself the right of directing the officers of the East India Company, under penalty of being guilty of a misdemeanour, to do what they are ordered to do; yet I do not think, looking to the whole of the Acts of Parliament, that there is any power of compelling the servants of the Company to do anything in a legislative capacity. By the new constitution of the Legislative Assembly, it contains members who are not servants of the Company. There are two Judges, and there is the legal Member, who is appointed by the Crown, and it is especially enacted that no measure shall be passed in the absence of those gentlemen, so that a mere abstinence from attendance upon the part of those gentlemen would be sufficient to impede legislation. As regards the question of the noble Marquess (the Marquess of Clanricarde) I can only say, what does the Government of India know of any Minister of the Crown? It knows nothing of the President of the Board of Control; it knows nothing of Queen, Lords, or Commons, unless they speak through an Act of Parliament. In fact, it knows nothing but the orders of the Court of Directors. No doubt, the Court of Directors act under a Minister of the Crown; but no one knows what he puts into their letters, or what he strikes out. Many things, no doubt, which have been viewed with considerable favour have emanated from him; but, on the other hand, with him may also have originated many things which have brought great unpopularity upon the Court of Directors, and which have arisen from the economical views of the Queen's Government; and we may, therefore, fairly lay down the rule that the Minister of the Crown is entirely unknown in India. I will not say anything more, except a few words, with regard to one topic which has been adverted to by the noble Duke. I fancied that the closing observations of the noble Duke indicated a disposition to concur with the proposal for placing Her Majesty's English subjects under the jurisdiction of the Native Courts, and I earnestly recommend him, and I recommend the Government, and I recommend Parliament, to use the most extreme caution before adopting any measure with a view to that object. We are a small number of persons in the midst of an immense population, and we cannot submit to any change which may, in the slightest degree, impair the ascendancy and supremacy of England. I do not give utterance to my own views alone, for I have heard similar views expressed in stronger language by the late Duke of Wellington, and I would farther press upon the consideration of the noble Duke the question, whether he believes that justice would be obtained in those courts. I do not. I incline to think no Native Judge, who had probably risen from nothing, and might return to nothing, would dare to decide against an Englishman going to his court with all the authority of his nation and of his energy of character; but, be that as it may, I trust that no step will be taken without the most careful consideration.


said, that the present state of the administration of justice in India, both as regarded Europeans and Natives, was most unsatisfactory. Europeans in the most remote provinces were amenable to no courts but those at the chief towns of the Presidencies, and while this was a great hardship to any of them who were prosecuted, it was a still greater hardship to those who had to prosecute them. In point of fact, if an European committed an offence at a distance from the seat of Government, there was no practical remedy whatsoever. It was now proposed that they should be subjected to the local courts. That was a most desirable measure if the local courts could be made competent to administer justice. The problem which had to be solved was the reformation of the local courts. Years, however, had passed away, and nothing had been done; and he was afraid that if this delay continued, the safety of our Indian empire might be compromised. Therefore, supporting the prayer of petitions which he had himself presented, he most earnestly implored Her Majesty's Government to take effectual measures for removing the grounds of these complaints.


said, that he saw no objection to the establishment of circuits of European Judges. On the contrary, he thought that much good would result from the adoption of such a measure; but he thought that practically there would be much difficulty in obtaining substantial justice if resident planters had to go before their neighbours.

Petitions read, and ordered to lie on the table.