Lords Sitting of 14 May 1857

MINUTES,
Took the Oaths (singly).—His Royal Highness the Duke of Cambridge; several Lords.
PUBLIC BILLS.—la Young Persons in Employment Instruction.

OPIUM TRADE WITH CHINA—OPINION OF THE LAW OFFICERS—QUESTION.
THE EARL OF SHAFTESBURYrecalled to the recollection of their Lordships that at the close of the last Parliament he brought under their notice a series of questions relating to the opium trade, and
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the mode in which it was carried on by the East India Company. The result of the discussion upon that occasion was that the question of the legality of the traffic was referred to the law officers of the Crown; and he now wished to ask the noble and learned Lord on the woolsack what progress had been made in the inquiry by those functionaries?
THE LORD CHANCELLORsaid, that, in consequence of what passed when this subject was last before their Lordships, he immediately communicated to his colleagues, and particularly to the President of the Board of Control, the questions submitted by the noble Earl. As soon as the elections were over the President of the Board of Control lost no time in directing the proper officer connected with his department to draw up a case, stating the facts, that it might be submitted to the law officers of the Crown. That was done—but there was some difficulty arising from the circumstance that it was all important that the facts should be stated accurately—a task by no means so easy as might at first sight appear. The case, however, was drawn up, and it had now been transmitted by the President of the Board of Control to the Court of Directors, in order that they might see whether, in their view, the facts were correctly given. It was at present in their hands; but he believed that in the course of a few days it would be laid before the law officers of the Crown; for there was no reason to apprehend that the facts were inaccurately stated.

INDIAN ADMINISTRATION—CASE OF MR. THOMAS.
THE MARQUESS OF CLANRICARDE
moved—
"That there be laid before this House:
"Return of the Appointments held by Mr. Thomas in the Civil Service of the East India Company in the month of September 1854, and of the Appointments he may have since held up to the Date of the latest Accounts, distinguishing Judicial from other Appointments: Also,
"Copies of any Correspondence that may have taken place between the Governor or other Superior Authorities at Madras and Mr. Thomas relative to the Case of Bhawanny Lallah v. Thomas, and to the Judgment delivered thereupon in the Supreme Court of Madras by Chief Justice Sir Christopher Rawlinson: And also,
"Copies of any Correspondence that may have taken place between the Home Government and the Government of Madras upon that case."

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The noble Marquess said that he had to bring before their Lordships a case of injustice, which if passed over without notice would be a disgrace to the British Crown, the British Parliament, and the British nation. He knew nothing of the gentleman against whom he had such grave cause of complaint, but he knew that this was not an isolated instance, and that the magisterial system of India, by placing despotic power in the hands of non- professional and unlearned men, subjected the Natives of that country to tyranny and oppression unknown under any other Government in the world; and, therefore, although he knew that discussions on Indian affairs were not very acceptable to their Lordships, he had thought it his duty to bring this case before them. The facts were briefly these:—Mr.Thomas, in September, 1854, was a collector and magistrate in one of the districts in our Indian Empire, and Bhawanny Lallah was a wealthy Native merchant resident in the same district. On the 26th of September, Mr. Thomas, who was not then at his post, but at a distance of sixty miles, sent to Bhawanny Lallah a note desiring him to wait upon him. He (the Marquess of Clanricarde) need scarcely remind their Lordships that travelling in India was not an undertaking of so easy a character as in a country where railways existed; and Bhawanny Lallah, thinking that he might dispense with attending on such a summons, did not go. For three months after sending the note to which he had just referred, Mr. Thomas remained away from his district, his duties being administered by two other magistrates, to whom no complaint was made of this noncompliance with Mr. Thomas's request. Mr. Thomas returned, however, on the 14th of December, and upon the 22nd of the same month he sent a notice to Bhawanny Lallah that he must attend at the court on the following day. On the morning of the 23rd, Bhawanny Lallah was taken by Peons to the court, and was there detained until six o'clock on the same evening, when he was told that he must come again on the following day. On the next morning he was again taken through the streets under the care of these constables, and the same scene was enacted for fourteen successive days, without any charge whatever having been brought against him. On the 6th of January, however, a confused sort of examination was ultimately held, and certain witnesses were examined upon a charge which, for
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the first time, was made against this Native merchant, to the effect that he, Bhawanny Lallah, had been instrumental in getting up a mob on the 3rd of September, on the occasion of some Mahomedan ceremony. Bhawanny Lallah denied that he was present in the town on the day on which the mob was said to have collected. Certain questions were then addressed to him, but he was not permitted to examine the witnesses produced. On the 7th of January, a paper was presented to him stated to contain a digest of the facts elicited at that examination, and to which he was desired to affix his signature. This Bhawanny Lallah declined to do on the ground, amongst other reasons, that the witnesses had not been examined, or his own statements correctly taken down. Upon that refusal he was removed to the common gaol, and there confined during the night without food, and with the prohibition to communicate with any person whatever. On the following day, at two o'clock, he was again brought up, and once more desired to sign the aforesaid document, and he was distinctly given to understand that if he declined he would be reincarcerated without food; and in terror of the execution of that threat he unwillingly signed the document. Now, he (the Marquess of Clanricarde) had simply stated the facts as they had been given by Sir Christopher Rawlinson when the case subsequently came before him, and he appealed to their Lordships whether the influence under which that signature had been wrung from Bhawanny Lallah was not one of torture by starvation. After the signature, however, had been obtained, he was told he was convicted upon it, and must find bail of 200 rupees—£20. Some friends in court offered to give security. The magistrate refused it, and for seventeen days and eighteen nights this merchant was kept in gaol, at the end of which time he was admitted to bail, the bail being only for £20. Bhawanny Lallah brought the matter before the Supreme Court. He was awarded 1,000 rupees, but a point—namely, the competency of the court to question the acts of any magistrate, which had been reserved on the trial, was subsequently heard in the full court, and the result was that this man was left without any redress whatsoever; and every petty magistrate in the Mofussil territory—that is to say, throughout the length and breadth of India—might with impunity torture and oppress him. Was that a state of things becoming the British Crown or the British

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Parliament to permit? If this had been an isolated case, it would not perhaps have been worth while to notice the aberrations of one man; but he had good reason to believe that it was only one out of a large number of such cases. He (the Marquess of Clanricarde) would probably be told that a Commission had been sitting, and that the result would lead to some great improvement in the administration of justice in India. With regard to the proposed changes, he trusted in some points they would prove to be beneficial; but he feared that in others they would not be so. He believed that magistrates appointed in the same way, and under no control or supervision, were to be continued throughout the country. The consequence was, that the European residents with one accord had refused to be subjected to the jurisdiction of tribunals so constituted. It was far otherwise with the Supreme Court. There the law was administered by lawyers trained in this country, and the tribunal enjoyed the full confidence as well of the Natives as of all the Europeons in the country. But it was said that that Supreme Court, notwithstanding its high character, was to be abolished, and a mixed court substituted for it. The result of such an arrangement would be that the new tribunal would be presided over by men dependent upon the East India Company, and without the independence which the Judges of the Supreme Court now happily enjoyed. Such result would be far from good. In one respect there would be a blessed change, for it was proposed that all persons in India should be subjected to the jurisdiction of the same tribunals. What state must that country be in where there was one kind of justice for the Natives and another for Europeans, and where Englishmen claimed to have a separate jurisdiction for themselves? It was in evidence that no honest man in India would have recourse to the Company's Courts. He held in his hand published statements of Europeans resident in India, who complained with the deepest indignation of the notion of being subjected to the whims, the prejudices, and the blunders of the officials in the subordinate courts. He believed that, if that scheme were carried into effect, before long no European would remain in the country, or invest capital in it if he was to be made amenable to the jurisdiction of those Company's Courts. They would only remain if they were under the jurisdiction of the Queen's Courts and
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the Supreme Court as at present established. Would their Lordships believe it possible that at this time of day there was one portion of the servants of the British Crown who claimed exemption from the jurisdiction of courts to which they were ready to subject every other class of their fellow-subjects? The civil servants of the East India Company actually claimed to be exempted from a jurisdiction to which all other subjects of the English Crown in India were to be amenable. Was that the even-handed justice of England? Surely, as was said in the pamphlet to which he had just referred, the proverb applied to this case, "That which was sauce for the goose was sauce for the gander." He submitted that this was part of a system which required complete revision, and that it was impossible that those subordinate courts could be continued in their present state. If they were to be allowed to exist, their operations must be superintended by Englishmen who had received a legal education. They had a Judicial Committee of Directors sitting in Leadenhall Street. He should be glad to know what this Committee did; and on that point he should shortly submit a Motion to their Lordships, which he hoped would have the effect of eliciting some information which it was desirable the public should possess. He would only further say that he trusted if any papers were in the hands of the Government relating to the subject which he had brought under the consideration of the House they would be forthwith laid upon the table.
EARL GRANVILLEsaid he could not quite agree with the noble Marquess in the assumption that discussions upon Indian subjects were always unpalatable to the House. From time time, on the contrary, very interesting and important debates on such subjects took place before their Lordships; and certainly the clear and able manner in which the noble Marquess addressed himself to those questions was not likely to make their Lordships less attentive to them. The noble Marquess had received later information on the matter he had just brought under the notice of the House than he (Earl Granville) had been able to obtain. The case, as stated by the noble Marquess, appeared to be one of incompetence, if not something worse, in the proceedings of Mr. Thomas on the occasion in question; but when, upon that case alone, an extensive charge was brought against the administration of justice in

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India, he (Earl Granville) must say such a charge was not borne out by the facts stated by the noble Marquess. He (Earl Granville) was not aware until that evening of the second charge which the noble Marquess had brought against Mr. Thomas. It was not mentioned in the official papers as yet received by the Government on the subject. He had only to say that an application had been made to the Government to proceed against the magistrates in this matter, but they declined to do that, and left the aggrieved party to seek his remedy in his own way. The Government, at the same time, declined to shield Mr. Thomas in any manner; and as respected the aggrieved party, they contented themselves with doing what was usual in such cases—namely, advancing money to enable him to proceed with his own defence, reserving to themselves full discretion as to the course they should take after the proceedings were closed. Beyond this he was not aware of what had taken place, or that any subsequent decision on that point had been given. The correspondence to which the noble Marquess had alluded had not yet been received in this country, but it would probably arrive in a very short time. There was no reason to doubt that, as soon as the correspondence was concluded, Lord Harris would forward it to the Home Government, and the question was one with regard to which they would require a full explanation of all the circumstances. The noble Marquess had referred to certain changes which had already been effected, and had expressed his disapproval of one alteration which had been made in the constitution of the Supreme Court, that alteration having, as he (Earl Granville) believed, been recommended in the strongest manner before the Committee by most competent witnesses. He must remind their Lordships that it would be almost, if not utterly, impossible to carry on the Government of India satisfactorily without entrusting to some individuals more arbitrary powers—not using that phrase in its strongest sense—than were necessary for the government of Her Majesty's subjects at home. At the same time it was, undoubtedly, of the utmost importance that the exercise of such authority should sometimes be checked, and that any abuse of it should be punished. Indeed, great care should be taken not to confide such serious powers to the hands of persons who were not likely to exercise them with proper discretion; and he thought the noble Marquess
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had not been sufficiently mindful of the changes which had recently taken place, and of the arrangements which had been made to insure the appointment of duly qualified persons to the important office of Judges. He could assure their Lordships that, after receiving the correspondence, the Government would require information and explanations as to the whole proceedings connected with this subject. Under the circumstances it would be premature to agree to the Resolution of the noble Marquess, who, no doubt, would consent to postpone it to a future period.
LORD CAMPBELLsaid, he was unacquainted with the circumstances of this case, and was therefore unprepared to pronounce an opinion upon it, but he felt it his duty to express his deep regret that no effective measures had been taken for improving the administration of justice in our Indian possessions. As the noble Marquess had stated, justice was most satisfactorily administered in what were termed the Queen's Courts—the Supreme Courts at Calcutta, Madras, and Bombay. The law had been administered in these courts by an able succession of Judges, and he doubted whether it was better administered in the Courts of Westminster Hall. But in what were called the Mofussil Courts, existing throughout the extensive area of our Indian possessions, the administration of justice was most defective, for the simple reason that the Judges had received no proper legal training. Indeed, many of the Judges were young men who were first appointed police-magistrates, then collectors, and who were afterwards placed as Judges upon the bench. The consequence was that serious complaints were made of the manner in which justice was administered. With regard to criminal law, all Europeans were under the exclusive jurisdiction of the Supreme Courts, and when they entered into civil contracts they generally made it a condition that the Supreme Courts alone should determine any disputes which might arise under such contracts. The great mass of the population, however, comprising many millions of people, were subjected to the jurisdiction of such magistrates and Judges as he had described. The pressure of the evil had been so great that a Commission had been appointed to consider the best means of improving the administration of justice in India, and that Commission included some of the most eminent jurists of whom this country could boast, either among the

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Judges in Westminster Hall or among those who had occupied seats on the judicial benches of the Supreme Courts in India. His learned Friend the late Chief Justice Sir John Jervis had devoted the utmost attention to the subject, and Sir Edward Ryan had been indefatigable in his labours. The Commission framed a code which it was believed would greatly improve the administration of the laws in India, but up to the present moment that code was a dead letter. It seemed as if no reformation could be effected either in India or in England, for there was simply an oscillation of schemes between England and India, and meanwhile the Native population remained in the most unfortunate position, exposed to a most oppressive and obnoxious system of justice. The Native population were most anxious to be placed under the jurisdiction of the English courts, and he thought that prompt and efficient measures should be taken to ameliorate in this respect the condition of our fellow-subjects in India.
THE MARQUESS OF CLANRICARDEsaid, that, after the statement of the noble Earl (Earl Granville), he would withdraw his Motion.
Motion (by leave of the House) withdrawn.
House adjourned at Six o'clock, till Tomorrow, half-past Ten o'clock.