Lords Sitting of 18 July 1861

MINUTES.
PUBLIC BILLS.—1a Offences against the Person; Municipal Corporations Act Amendment; Salmon Fisheries; Parochial and Burgh Schools (Scotland); Irremovable Poor; Turnpike Acts Continuance; Public Works and Harbours.
2a East India (High Courts of Judicature); East India (Civil Service); County Voters (Scotland); Turnpike Trusts Arrangements; White Herring Fishery (Scotland); Vaccination.
3a Chatham Dockyard Enlargement; London Coal and Wine Dues Continuance.

VOTE OF THANKS (CHINA.)
THE LORD CHANCELLORacquainted the House, That he had received Letters from Vice-Admiral Sir James Hope, K.C.B., and Major General Sir John Michael, K.C.B., in return to the Thanks of this House and to the Resolutions of the 14th of February last, communicated them in obedience to the Order of this to House of the said 14th of February: The said Letters being read, were Ordered to lie on the Table, and to be entered on the Journals.
ASSIMILATION OF CRIMINAL AND CIVIL PROCEDURE.

  PETITION.
  LORD BROUGHAM presented a Petition from Bezer Blundell, praying that a measure may be passed to enable defendants in prosecution for Libel to be examined on Oath. The noble and learned Lord said, that in 1851 he had the great satisfaction of effecting, with their Lordships' concurrence, the most important change and improvement which had for many years been introduced into the procedure, indeed, he might say, into the jurisprudence, of this country—the allowing parties in all civil suits whatever to be examined as witnesses, and compelling them to be examined at the instance of their adversaries. The effects of the change had proved most beneficial in all civil suits, and he had decided to extend it partially to criminal cases, by giving the option to the defendants to be examined if they chose, submitting themselves, of course, to the sifting of cross examination, which any innocent person must rather desire than wish to avoid. The objection taken to this proposal, when he had introduced a Bill on the subject, was that any person who declined the leave to be examined would be supposed to do so from consciousness of guilt. He (Lord Brougham) owned that this did not much change his opinion, because it would only serve to convict the guilty. The petition which he now had to present afforded a strong illustration of the bad state of the law in this respect. It was from Mr. Blundell, and the facts stated in it strongly supported his (Lord Brougham's) view of the subject, and showed the necessity of a change in the law. Mr. Blundell, in his endeavours to improve the administration of the County Court, became involved
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  in a correspondence which, it was alleged, partook of a libellous tendency. Proceedings were taken against him, and Mr. Blundell offered to deposit £100, to cover the costs of his adversary, if he would allow the action to be brought in a shape which would admit of his being examined. That proposition, however, was declined, and an indictment was brought against him not only for libel, but for an attempt to extort money. The latter part of the case broke down, and an acquittal was directed; but the charge of libel was persevered in, and, as Mr. Blundell was unable to be heard in his own defence as a witness while his adversary was allowed to be favoured, he was convicted though he could have proved the truth of the statement. His only remedy, as he was advised, was to prosecute his opponent for perjury, who would, in turn, be debarred from giving evidence in his own behalf. Mr. Blundell complained of this state of the law of libel, and asked that defendants might be heard in their own behalf. For his own part, he would be prepared to go further, and to extend the principle to all criminal cases.

EAST INDIA (HIGH COURTS OF JUDICATURE) BILL.

  SECOND READING.
  Order of the Day for the Second Reading read.
  EARL DE GREY AND RIPON, in moving the second reading of this Bill, said, that when the present Secretary of State for India introduced in "another place" his measure of 1853, he stated that, in consequence of evidence which had been given before Committees of both Houses, and in consequence of the opinion of Members of the India Council, the Government had come to the conclusion that it would be desirable to make an effort for the amalgamation of the chief Courts of Judicature which now existed at each of the Presidency towns. But it was thought desirable that, before taking any steps to carry out the alteration suggested, measures should be adopted for the improvement of the civil and criminal procedure, and a Commission was appointed to report upon the subject. That Commissions had drawn up a plan which had been sent out to India. The code of civil procedure had been passed by the Legislative Council, and the reports of its working were most satisfactory. The code of criminal procedure was now passing the Legislature,

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  and would, no doubt, become law in the course of the present year. A penal code for the whole of India had been passed, to come into operation on the 1st of January next. The Government, therefore, were now in a position to redeem the pledge given in 1853. That was the object of the present Bill. At the present moment there existed for Calcutta, Madras, and Bombay two principal courts of judicature, one called the Sudder Court and the other the Supreme Court. In the one the Judges were selected from the Indian civil servants, and in the other they were English barristers. Both Courts exercised a similar jurisdiction, although within different limits. The Supreme Court of Calcutta exercised a jurisdiction of a personal description in regard to Europeans all over India, except in the Presidencles of Madras and Bombay, so that every European, whether in the service of the Government or not, charged with a criminal act, must be taken to Calcutta to be tried. The Sudder Courts exercised a certain amount of superintendence over the proceedings of the Courts in the Mofussil. Now, while it was most desirable that in a Court of last resort there should be combined the advantages and powers possessed by both these Courts, and that it should unite to the legal knowledge and judicial training of English barristers the knowledge of the language, habits, and feelings of the Natives which was possessed by the Civil Service Judges of the Court of Sudder Adawlut, it was equally desirable that the Courts which exercised a superintendence over the inferior Courts should in part consist of persons who had received the training and possessed the knowledge of an English barrister. It appeared to the Government that if the two Courts were amalgamated their supervision might be extended, and the exercise of justice by person well trained in the law would be secured in different parts of the country, thus remedying a great evil of the present system, and providing better security for the due administration of justice. Opinions had been given in favour of the amalgamation of the Supreme and Sudder Courts by many whose judgment in the must have the greatest weight, and amongst them Sir Edward Ryan, who at the time he expressed his opinion was Chief Justice of Bombay, and Sir Frederick Halliday, the Lieutenant Governor of Bengal. The noble Earl having read extracts from the evidence of these gentleman, proceeded to say that
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  by this Bill they proposed to abolish the existing Supreme Court and the existing Sudder Court, and to form in lien of them a High Court of Judicature, to be established as the Supreme Court originally was by letters patent. With respect to the qualification of the Judges, it was proposed to take for the legal class the same standard as existed for appointments to the Supreme Court—namely, they must be barristers of five years standing; as to the Civil Service Judges nearly the same standard as existed for the Sudder Courts—namely, they must be of ten years standing in the service, three of which must have been passed as Zillah Judges; or they must have been Judges of an inferior Court for five years, or pleaders in the Supreme or Sudder Courts for ten years. One third of the Judges (including the Chief Justice) were required to be of the legal class, and one third of the Civil servant class. Her Majesty's Government had been anxious to take power for the Governor General, if he should think fit, to appoint certain Natives who had served in the lower Courts of India, Judges of this Court. Lord Canning and other authorities were of opinion that Natives who had acquired experience in the present Courts should be eligible for the highest judicial appointments, and that some of them would be found capable of sitting side by side with British Judges. A very necessary and salutary provision was made for sending Commissioners to try cases in parts of the country distant from the ordinary Courts; and also for the exercise by the High Court of a general supervision over the other Courts in the country, which would places the Chief Justice somewhat in the position of a Minister of Justice. He believed that this measure would improve the administration of justice in India, strengthen the highest Court of judicature in that country, and elevate the character of the other Courts by placing them under its Supervision.
  Moved, That the Bill be now read 2a.
  LORD BROUGHAMleft it to those who were experienced in Indian affairs to deal with the Bill at large. There was, however, one provision upon which it required no local knowledge of India to express a decided opinion, and which he trusted would be erased from the Bill. He alluded to the provision that the Indian Council should have power not only to appoint the salaries of Judges upon their entrance into office, but from time to time

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  to alter those salaries; the effect of which would be that the emoluments of the Judges would depend upon the pleasure of the Council. It was obvious for what purposes that power might be used, and the proposal was as novel as it was objectionable. He hoped it would be struck out of the Bill.
  EARL DE GREY AND RIPONsaid, that the construction put upon the clause by his noble and learned Friend was certainly not that contemplated by the Government. What was intended was that the power to alter the salaries should not apply to Judges who had been appointed, and whose salaries had been fixed, but only to those who might be "thereafter appointed." That was certainly the intention of the clause, and he would be glad to consider any words which the noble and learned Lord might propose to make it clearer.
  THE EARL OF ELLENBOROUGH:I so far concur with the noble Earl (Earl de Grey) that I think it would certainly be a considerable improvement if the Supreme Courts of Calcutta, Madras, and Bombay had given to them the power of despatching one of their members into the Mofussil, for the purpose of trying charges against Europeans. That object might be accomplished without any difficulty by having a single Judge for the purpose at each of those Courts. But it would be advisable, also, to give that Judge the assistance of some person, such as one of the Judges of the Sudder Courts, conversant with the laws, customs, and language of the Natives. Otherwise, the Judge of the Supreme Court despatched to the Mofussil would be completely in the hands of the interpreter and lower officers of the Court, who would probably be bribed by one, and possibly by both of the parties in any case he had to try. This Bill goes very far—indeed, like the other Bills—it goes far beyond the necessities of the case. The noble Earl told us that on the Report of the Law Commission which sat some twenty years ago, and on the evidence which was taken in 1853, Sir Charles Wood in the latter year announced his intention at some time or other of introducing a Bill of the same tendency as the present. Your Lordships, however, knew perfectly well that to give evidence on the general subject and to give evidence as to a Bill actually before Parliament are two very different things. If this Bill had come up early in the Session, I think your Lordships could not have refused—what I would even now propose
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  were it possible—that it should be referred to a Select Committee for the purpose of hearing the opinions and statements, not only of Judges who have exercised authority in the Supreme Court, but of the many learned persons, for learned they are, who have officiated as Judges in the Sudder Courts, and in different parts of the country. We should then have been prepared to decide on this measure with a knowledge of the subject which we have not at present. The state of the Session, however, renders it impossible for us to avail ourselves of that assistance. The idea of this measure is by no means a new one. The Government, indeed, seem to be in possession of a great many exploded ideas which are quite of old date. I can recollect this notion twenty or thirty years ago; and it was weighed and considered and rejected during that period, till it was at length taken up by Sir Charles Wood. I well recollect the very long speech which the right hon. Gentleman made when he first brought the proposal forward, for I calculated that its length was about equal to one of my wars. The Gwalior war consisted of two battles, fought in one day, and the length of the fighting part of that war fell considerably short of the length of Sir Charles Wood's speech. In 1830 Mr. Mountstuart Elphinstone was examined on this subject, as well as on the constitution of the Council, and he gave a decided against the union of the Supreme Courts and the Sudder Courts. Even on the subject of the Council I consider Mr. Mountstuart Elphinstone's opinion as valuable as any we possess; but with respect to any matter connected with the jurisdiction of the Courts and the administration of justice, there has been no man at any time whose opinion deserves so much respect as that of Mr. Mountstuart Elphinstone. He was himself a lawgiver—a great lawgiver—not merely a very able man, but one to whom the people of India were extremely attached, and he was not likely to be opposed to any alteration which would be of advantage to them. Yet, with all his knowledge and with his philosophical mind, he decided that it was not expedient to unite these Courts, and the reason which he gave was that it would introduce into the Mofussil all the technicalities of the English law. I wish those of your Lordships who are connected with Scotland to consider what would be your feelings now if any Government were to introduce into Parliament a Bill for uniting

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  the Courts of Scotland to the to the Courts of England, and making those Courts consist of three times the number of persons of which they consist at present. What would be your feelings if not only barristers of five year's standing, and gentlemen of the Faculty of Advocates, were supposed to be capable of all possible functions, but persons in a similar position to the Judges of the Zillah and Small Cause Courts were declared eligible to be appointed to the highest Court of judicature—such as Chairman of Quarter Sessions, County Court Judges, and persons of an inferior description who by rural courtesy are called lawyers? But all those persons may be introduced into this Court in India, which you will observe is the Court to which all the Courts throughout India, European and Native, are to appeal. I can imagine great objections to such a fusion of Scotch and English law, and no doubt great inconvenience would result from it. But how infinitely small would be the inconvenience of that amalgamation compared to the inconvenience of the amalgamation which is now proposed. The Judges to proceed to the Mofussil are to form a Court capable of infinite subdivision by their own authority. There is to be one Judge, or two Judges, or three Judges, as they please; and all these different Courts are to exercise the whole appellate and original jurisdiction now possessed by the Sudder Court and by the Supreme Court. English lawyers know nothing of the language of the people. They know nothing of the law by which cases are to be decided. They know nothing of Hindoo or Mahommedan law. They know nothing of the various regulations which, during one hundred years, successive Governors General have, with great zeal, introduced. They know nothing of the customs of the country or the habits of the people. They know nothing of the laws of caste; and these gentlemen are to be sent into the Mofussil to give satisfaction to the Natives in the administration of the law. I think that if it were desired to devise a system which would produce discontent from one end of India to the other, and degrade the administration of justice, it is that system which is provided by this Bill. But if that is not a sufficient objection, as I think it is, give me leave to draw your Lordships' attention to the financial working of this Bill. With the exception of the noble Lord who has introduced the Bill, I doubt whether any of your Lordships have looked into it
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  to see what will be the cost, and what will be its particular effect upon the expenditure. Three Courts are to be established, and a fourth may be established, and, probably, will be established for the North-Western Provinces. To show the animus with which the Bill was introduced, when it was presented to the House of Commons there was no limit as to the number of Judges. The House of Commons, with rare economy, limited the number to fifteen for each of the four Presidencies. The number of Judges by whom appellate jurisdiction is to be exercised is by this Bill sixty. How many Judges are there now? At Calcutta there are three, at Madras two, and at Bombay two, making seven in all. Of the sixty Judges twenty must be barristers. Thirteen barristers of five years' standing are to go out to India as Judges. Every one of those gentlemen, of necessity, in order to induce them to go and to place them on a level with those who are there, must have £5,000 a year. There are eighteen Judges in the Company's courts; therefore, only two have to be added to complete the twenty who must be covenanted servants. How is the intermediate body of twenty to be made up? No power is given to the Governor General to make an original appointment. It is a greater violation of the principle of Government and the proceedings of Parliament than has ever occurred since the rejection of Mr. Fox's India Bill. It places India patronage of great value in the hands of the Crown. It takes from the Governor General the power of rewarding good judicial servants, and it transfers all the appointments to England. You may depend upon it that it is impossible great mischief under such circumstances should not follow. The result will be, and I believe the result intended is, that the third body of twenty Judges shall also be barristers of five years' standing, and that, in the first instance, thirty-three barristers will have to be sent to India with £5,000 a year each. Observe what is the present charge of judicial administration in India. In the accounts lately presented it is £4,230,000; but from that charge we may fairly deduct the charge for police, and a small charge of about £90,000 incurred in the year under review—1859–60—on account of the mutiny, making together £1,837,000. So that there remains as now expended on account of the administration of justice £2,393,000. Let us see what is the expense of the Supreme Courts already. The salaries of the seven

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  Judges amount to £44,000. I have no objection whatever to that; but there are other very large charges for contingent expenses. The contingent charges of the three Courts are £83,500 a year, in addition to £44,000 paid in salaries. And the result of the operation of this measure will be this—there will be added to the present expenditure, great as I have shown it to be, the salaries of thirty-five Judges. Their salaries will amount to £175,000, and of that sum £165,000 will go to barristers of five years' standing. But there will be a charge for contingencies connected with these different Courts, and I venture to say it is a very low calculation to put it at £2,500 for each of the thirty-five Judges. If I were to take the average of the same charge for the present Judges, it would be £12,000 a year each; but taking it at £2,500 a year the total sum which this Bill will cost when carried out is £262,000. I do entreat your Lordships not to proceed further without considering what you are about, and hearing the evidence of competent persons as to the expediency of adopting this particular mode of carrying into effect the amalgamation of the Courts, even if it is right there should be an amalgamation at all. As the Bill stands, it appears nothing more than an enormous job for barristers. What effect it will have in India I know not; but this I know—that, if Mr. Mountstuart Elphinstone's opinion be correct, it will produce the greatest discontent and dissatisfaction, and will not further the ends of justice. Recollect that for the first time there is introduced into this measure a provision giving to the Crown, and taking from the Government of India, a very large and most important patronage, the appointment of all the higher officers in the judicial establishment. I cannot consent to that innovation, nor can I consent, without much further information from the most competent authorities, to adopt the principle of the noble Lord's Bill.
  THE MARQUESS OF CLANRICARDEbelieved that it was the opinion of those who had most experience in hearing Indian appeals in the Privy Council that the Supreme Court at Calcutta had worked in an admirable manner. It was a matter, therefore, of very serious moment to attempt to alter a Court of such a character. Nevertheless, he hoped that the Bill would pass without any great alteration. In one or two points it certainly did require alteration. He objected strongly to the provision at the end of the second
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  clause, that one-third of the judges should of necessity be members of the Civil Service. Such a provision was entirely at variance with common sense, and seemed to him equally extraordinary and unconstitutional. He should have thought that the provision should have been just the other way—namely, that not more than one-third should belong to the Civil Service. The whole civil Service did not number more than 470 members, for notwithstanding the great increase of our Indian territories very immaterial additions had been made to the service. The proviso really enacted that one-third of the Judges should not be trained lawyers, for three years' service in a Zillah Court could not qualify a man to be Judge in a Supreme Court. It was quite right that the courts should be open to the Civil Service, and that members of that service when they showed themselves qualified for high judicial office should be raised to the bench; but he objected to making it imperative that one-third of the Judges should be taken from that service, whether or not it could afford men properly qualified. All the ablest men of the judicial department were taken from it to be placed in political and fiscal posts. He objected also to the clause which provided that the Chief Justice as well as the other Judges should be removable at the pleasure of the Crown. That was a most unconstitutional proposal. It was said that this had always been the case; but India was then governed by the Company, and the Queen's Judges were, therefore, independent of the Indian Government, and stood between the Company and the people. He submitted that it was desirable to perpetuate as far as possible that independence, for there was direct evidence on record that the Indian Government had not unfrequently attempted to influence their judicial officers in the discharge of their duty. The Enam Commission Commissioners had been exchanged two or three times because their decisions were not in accordance with the designs of the Government. He hoped that their Lordships would consider the two points he had mentioned when the Bill was in Committee. In opposition to the opinion of the noble Earl (the Earl of Ellenborough), he believed that sending the Judges on circuit would be of great use, and he repeated that, as far as he could judge, the present Supreme Court was held in high estimation.
  EARL DE GREY AND RIPONsaid, the

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  noble Earl (the Earl of Ellenborough) had objected to this Bill, that it would amalgamate two Courts which at the present moment had different modes of procedure. The fact was, however, that at the present moment there was one civil procedure in India applicable to all Courts; there was about to be one single criminal procedure, and after the 1st of January next there would be one penal code applicable to all classes in that country. The noble Earl's analogy, therefore, drawn between the proposal made in this Bill and a proposal to amalgamate the Scotch and English Courts entirely failed. The practice of the two Courts would, in point of fact, be the same even if they were kept separate. Then the noble Earl seemed to suppose that the Government were going to appoint sixty Judges under this Bill. This estimate proceeded upon the supposition, which was really quite preposterous, that it was proposed to appoint at once the whole of the fifteen Judges in these Courts. The words of the clause, however, were "not exceeding fifteen." The noble Earl said that forty out of the sixty might be barristers. Now, he did not think he need seriously answer an insinuation that the Bill was introduced to enable the Government to send out forty barristers from England to be Judges in these Courts. It was not the intention of the Bill that two-thirds of the Judges should be English barristers. One-third of the members of the Court were to be Civil Servants, and for the remaining appointments, besides the English barristers who would be eligible, two other qualifications were specified; so that the noble Earl's charge manifestly had no foundation. At present there was no limit by law to the number of Judges in the Sudder Courts. At Calcutta there were five, and within a recent period there had been ten; but those Judges had been appointed under peculiar circumstances, the amount of business being such as to render their appointment necessary. At that time there were thirteen Judges, ten in the Sudder and three in the Supreme Court. It might thus seriously interfere to impose a limit; but there was not the least intention to appoint sixty Judges, and incur the enormous expense which the noble Earl seemed to fear. Their number would be fixed as at present, according to the requirements of the service, with this difference—that, whereas the number of the Judges in the Sudder Courts might now be increased to any ex-
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  tent by the addition of temporary Judges, a limit would be imposed under this Bill. It should be remembered that these Courts were to exercise jurisdiction throughout the whole of India. The duties of the Judges would be most important and various, and, that being so, it would not be right to impose a narrow limit on the discretion of the Indian Government in this particular.
  THE EARL OF ELLENBOROUGHwould offer a few words in explanation. This Bill amalgamated the Sudder and Supreme Courts, the result of which would be that each would bring all its Judges and all its jurisdiction into partnership. The Sudder Court decided causes which came before it on appeal according to the law which prevailed where those causes were originally heard, which was the Company's law. The Supreme Court decided the causes which came before it according to the Queen's law, which differed materially from that of the Company. Now, when the two Courts were amalgamated they must adjudge the case according to the law of the Court from which the appeal proceeded; and how would the Bill operate in this respect? First of all, the present Chief Justice of the Supreme Court in Calcutta, of whom it was said that a Bill had been introduced specially to put him down, was at his discretion to direct in what manner the Court should be division surely meant that there should be a Queen's Judge and a Company's Committees, or else there would be no amalgamation; and f they had an English barrister sitting along with one of the Company's servants, this would practically be analogous to the amalgamation of the English and Scotch Courts, because here would be two Judges, neither of whom was acquainted with the law known to the other, and who would have to decide a case which might involve either kind of law. Another point was the number of barristers who might be appointed Judges under this Bill. When the measure was introduced into the House of Commons there was no limit, no check, to the expenditure that might be made under it on lawyers. But the House of Commons limited the number of Judges to fifteen. There were certain small Courts in India; and there were, besides, persons who acted as pleaders before the Sudder Courts; but he did not these intermadiate bodies.

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  The Bill reminded him of the section of Westminster Hall which he had once seen; the two outside facings of the hall were of find stone, but the middle was filled up with bad rubble. He thought it quite impossible to come to any conclusion but that the Crown was to appoint the whole sixty judges, for the Government General could only nominate when there was a vacancy. He had told their Lordships what might be done under this Bill, and that was a Parliamentary view to take; it was their duty to be suspicious; confidence was not their duty; and he saw nothing in the way in which the Bill was framed to inspire confidence in those who framed it.
  THE BISHOP OF LONDONsaid, there was one point to which he wished to call attention. The Judges of these Courts were to consist partly of Natives, who might be Hindoos or Mahommedans, and they might, from the way in which this Bill was framed, have to exercise their office of Judges in matters ecclesiastical. The Bill abolished the present Court of Appeal in matters ecclesiastical, which was a Court of delegates consisting of three members of the Civil Service in each of the Presidencies. He thought it was desirable that some change should be made in the Bill before it was passed, in order to prevent Native Judges having to exercise jurisdiction in ecclesiastical mattes.
  THE LORD CHANCELLOR:My Lords, I think it would be a matter of deep regret if anything that has occurred should prove an impediment to the progress of this Bill, which, I think, will distinguish the present Session, by discharging one of the greatest obligations you owe to the people of India. Since I have had the honour of holding a seat in this House, I have listened on several occasions with the pleasure and admiration which all must feel to the speeches of the noble Lord on my left 9the Earl of Ellenborough). But i must confess I do not think the speech he has made this evening is distinguished by so much candour or, I will even say, with much respect, by so much knowledge of the subject as generally mark the speeches of the noble Earl. The noble Earl spoke of the Supreme Court in the several Presidencies as if it had not now to administer Native law; but the Supreme Court has an area of jurisdiction within which come the great cities of Calcutta, Madras, and Bombay. Within that area the judges of the Supreme Court administer not only
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  English but Native law. One principal topic of the noble Earl's speech has been the ignorance of the English barristers, and their unfitness to administer Native law satisfactorily. Yet the present state of the administration of justice in India is this—there is a Supreme Court within whose jurisdiction come the chief towns of the Presidencies; beyond them there is a local jurisdiction that I may describe as divided into districts, each having a Zillah Judge, who decides both in civil and criminal cases. From these judge there is an appeal to the Sudder Adawlut, and, with great deference to the noble earl, I must say that, thought in theory this Court may have some original jurisdiction, it is practically confined to matters of appeal. What is the result? That, with regard to the Natives beyond the limits of the towns, there is one Supreme Court to administer the law, and with regard to the Natives within the limits there is another. And with regard to British subjects, if they are within the limits of the Presidency towns they are amenable to the jurisdiction of the Supreme Court; but if they are beyond those limits they are subject to no jurisdiction except the limited powers the 53rd of George III. gives to local magistrates of the Mofussil. The result is there is a most unjust and unreasonable distinction between the Natives on one side and the Europeans on the other; one is placed on a different footing from the other. Can this be satisfactory to the Natives of the country? Have you any greater hold, or ought you to seek to have any greater hold, over the Natives of the country than by an elevated, impartial, and pure administration of justice? Can that be attained while you have one law and one administration for the Native, and another for the European? That defect the Bill is proposed to remedy. The noble Earl says, how can we send out English barristers, of five year's standing, to administer Native law? But the Judges in India—I may appeal to the example of Sir William Jones—have been distinguished by the assiduity with which they have cultivated a knowledge of Native law, as much as by the impartiality and skill with which they have administered it. It is true that the Bill merely provides that the barristers who may be selected for these appointments must be of five year's standing; but the noble Earl will permit me to remind him that this is the minimum qualification. It does not mean that young

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  men are always to be selected, though a barrister of five years' standing may frequently have a great amount of practical experience in his profession. The late Mr. Justice Patterson had practised below the bar, and laid the foundation of his great reputation by attaining great knowledge of the law, so that when he was elevated to the Bench he was only a barrister of a few years' standing. It would be an unwise thing to require such a number of years' standing for an English barrister as would preclude the possibility of selecting a young and talented man. Now, the manner in which these Judges are to administer the law is this:—A certain number of covenanted servants, and a certain number of Natives, are to be nominated as judges; circuits will be established, and commissions, sometimes of European, sometimes of Native judges, according to the exigency of circumstances, will be sent into the Mofussil districts to regulate, control, and set right what may be required in the administration of justice. The noble Earl has drawn a striking picture of the good things which this measure will provide Earl, however, has much exaggerated the generosity of the Government to English barristers, and I am quite sure when his speech is read it will make many months water in Westminster Hall, the Sessions House, and the Four Courts, in expectation of such good things as fifteen judgeships, each with £5,000 a year. Then—which is an extravagance that, with my little knowledge of India, I hardly anticipated7mdash;the noble earl says each of these Judges will have £2,500 whenever they go a circuit, or make a journey into the Mofussil. If this is the anticipation of the noble Earl, it is by no means the anticipation of the Government. There are at present eight Judges in each of the Presidencies, five in the Sudder Court, and three in the Supreme Court; and I have yet to learn that the judges of the Sudder Court each receive £5,000 a year; and I do not find that this Bill will make any alteration in that respect. On the contrary, its language has been studiously selected to avoid any such obligation. But I do not think that is the mode in which a great question of this kind should be considered. We are providing for the administration of justice among many millions of people. Undoubtedly we should not approach that subject by first making an estimate of what it will cost,
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  but we should approach it in order to establish such a staff of Judges as may be required by the exigencies of the case; not, I admit, beyond the exigencies of the case, but such as is absolutely required for the performance of the duties. Such, undoubtedly, we are under obligations to consider, and that obligations, I submit, no consideration of money should induce us to forbear from acting upon. It was said by the noble Earl that a gentleman of great ability and deserved reputation (Mr. Mountstuart Elphinstone) gave an opinion some years ago to the effect that it would not be desirable to attempt to amalgamate the modes of administering the English and Native law. Now, let us consider what was the ground for that opinion. The noble Earl gave us a reason for that opinion, but that reason, I am happy to say, no longer exists. Mr. Elphinstone, who is frequently cited upon this subject, said he should be sorry to carry the English mode of administering justice into the Mofussil, because it would take with it all the technicalities of English procedure. I agree with him that, if the technicalities of English special pleading existed now as they did at that time the opinion was given, administering justice in the English form would inflict those technicalities upon the Natives of India. But the noble Earl forgets that the Government have delayed the propositions contained in this Bill until they had previously prepared the way by the formation of a simple code both of civil and criminal procedure7mdash;a code which we have already tried and found to give satisfaction—a code which combines the merits of cheapness and expedition, as well as the means of simplifying the administration of justice. I think, therefore, the mode of dealing with this subject which the Government have adopted is one consistent with their duty and the proper administration of justice in India. I am particularly desirous that this should be done, because I think the Native laws will, under this form of administration, be fully developed, and in a manner consistent with the results of experience and the improved state of the English jurisdiction. There are a variety of cases in which, without altering the Native law, but adhering to it in all respects in regard to possession and the rights of property, yet as to contracts and mercantile usages there are an infinite number of cases in which the Native law would be improved by being administered under an improved system. Of the various

  1063
  points which have been urged in debate there only remains, I think, that mentioned by the noble Marquess (the Marquess of Clanricarde)—the removability of the Judges at the pleasure of the Crown. The noble Marquess will be relieved of a great part of his apprehensions when he is reminded that, although it has been customary to make the offices of colonial Judges dependent upon the pleasure of the Crown, yet, in reality, there is a rule which has been laid down, which practically gives those Judges the same security as the English Judges; and I remember a case in which the removal of a Judge was reversed, because that rule had not been adhered to—which is, that whenever a cause of complaint is raised against a Judge, that cause of complaint should be brought under his notice, in order that he might have an opportunity of being heard in his defence antecedently to any steps being taken to remove him from his office. The position of a colonial Judge is, therefore, nearly correspondent with that of English Judges, who are removable only upon an Address to the Crown by both Houses of Parliament, and I think the rule I have mentioned is quite sufficient to ensure security in the case of Indian Judges. In conclusion, I may advert to the point raised by the right rev. Prelate (the Bishop of London), and I would remark that there is no more common mistaken than to suppose that the word "ecclesiastical" now involves anything that is spiritual. There is no ecclesiastical jurisdiction existing now in England beyond what is exercised by civil courts. The last blow was struck when I had the honour of carrying through Parliament the Testamentary jurisdiction Bill and the Matrimonial Causes Bill. The ecclesiastical jurisdiction here referred to is a testamentary jurisdiction and a matrimonial jurisdiction. A spiritual jurisdiction relates to question between a Bishop and his clergy, or between the clergy themselves. However, in order to prevent the possibility of alarm upon the subject, I can assure the right rev. Prelate that it is the intention of the Government to strike out the word "ecclesiatical" and substitute the word Having now referred to the various points that have been mooted I have only further to apologize to your Lordships for trespassing to apologize to your Lordships for trespassing at some length upon your patience.
  Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the Whole House on Thursday next.

EAST INDIA (CIVIL SERVICE) BILL.

  SECOND READING
  Order of the Day for the Second Reading read.
  EARL DE GREY AND RIPONrose to move the second reading of this Bill, which, he said, was the last of the series of Bills relating to India which the Government had submitted to Parliament this Session. The first object of the Bill was to confirm a number of appointments which had during a long space of time been made by the Government of India, but upon the legality of which great doubts had been cast. By an Act passed in 1783 covenanted Civil Servants alone were to be appointed to posts in India; but, as the limits of our Indian Empire were extended, and the demand upon the covenanted service increased, the number of Civil Servants was found inadequate, and other persons were appointed. Various attempts were made to justify the proceeding. It was held that in non-regulation provinces, which had been added since 1793, the provisions of the Act of that year did not apply. It was also held that, provided an appointment was not eo nomine in existence in 1793, the restrictions of the Act did not apply. To meet the case, it happened frequently that offices were abolished and re-created under a different name, in order to enable uncovenanted servants to be appointed. Thus, an assistant-collector was changed into a deputy-collector. Under the Act of 1793 the postmaster and other officers should be members of the guaranteed service, and even the Military Secretary ought to be not a military man but a covenanted Civil Servant. In consequence of some doubt which arose with regard to an appointment in Bengal, Lord Stanley, who was then at the head of the Indian Administration in this country, caused the opinion of the law officers of the Crown to be taken, and their decision rendered it perfectly clear that under the Act of 1793 not merely the appointment of military men to civil offices, but, likewise, the appointment of Natives to such offices as that of Principal Sudder Ameen was altogether illegal. It was consequently manifest not only that steps ought to be taken to legalize the appointments already made, but that the powers of the Governor General for the future ought to be clearly defined. No one could desire that military men should be excluded from civil and political appointments, which they

  1065
  had filled in various parts of India with the greatest advantage to the public service; or, on the other hand, that certain appointments should be closed against the Natives of India. The object of the Bill, was, consequently, to legalize appointments which had already been made, and to provide that, in future, particular duties might be performed by members either of the covenanted or uncovenanted service. But when such a serious alteration was made in the law of 1793 a question naturally arose as to the position of the Civil Servants. He need not detain their Lordships by dilating on the claims of these public officers, nor by expressing his admiration of the great services which they had rendered since India was first brought under the rule of this country. The Indian Civil Service had produced men of the highest eminence in all the branches of statesmanship, who had done honour not only to India but to England also. It was, consequently, the absolute duty of the Government, when interfering with the law of 1793, to determine the position in which Civil Servants would in future be placed. In deference to representations made by the Civil Servants, the Secretary of State for India had introduced into the Bill a schedule of offices which to be reserved exclusively for Civil Servants, except in cases where the Governor General, for special reasons, felt it advisable to appoint some person outside their number, and in those instances the appointments were to be only temporary till they obtained the approval of the Secretary of State at a meeting called to consider the appointment. That such an exceptional power ought to exist was shown by the case of Colonel Durand, of whose political experience, and great knowledge of the Natives Lord Canning would have been unable to avail himself under a strict interpretation of the Act of 1793. Sufficient cheeks were imposed upon those appointments by the fact that a residence of seven years in India was necessary as a qualification, and that the persons selected would be required to possess an acquaintance with the Native languages. The Bill in its present shape had obtained the approval of the representatives of the Civil Service, having been altered in accordance with their suggestions, and received the unanimous support in "another place" of Members of both political parties. He,
  1066
  therefore, trusted their Lordships would not object to its being read a second time.
  Moved, That the Bill be now read 2a.
  THE EARL OF ELLENBOROUGHsaid, every Governor General desired to have the most absolute freedom of selection in filling up the offices at his disposal, and would, no doubt, rather exercise the powers given by the Bill than content himself with those which he possessed under the existing law. But, whatever political advantages might be derived from the measure, he did not think it was just. It was directly in contravention of Parliamentary pledges; it interfered with Parliamentary right, and, unless the Members of the Civil Service were content to waive their privileges, Parliament should continue to extend to them all the advantages they at present possessed. No acts of illegality committed by successive Governors General could in any manner detract from offices. He doubted whether the supposed benefits would result from this Bill, and whether the moment Civil Servants ceased to enjoy the exclusive possession of office in India the same disposition would continue on the part of the people of this country to offer themselves as candidates for that service. If the effect of this new law were materially to diminish the number and to lower the qualifications of persons desirous to fill situations in India, very great mischief would be done. Gentlemen who came off second best at the very strict examinations in this country would set off to India and endeavour to get in at the back door, having failed to get in at the front. Having lived through the prescribed term of years—and with their qualifications they would have no difficulty in obtaining employment in the interval—there was nothing to prevent them from obtaining office, and, perhaps, from distancing in the public service those gentlemen who at the competitive examinations had obtained a greater number of marks. The noble Earl had spoken of the securities provided under the Bill against any impropriety of conduct on the part of the Governor General in appointing persons on special grounds; but he should wish to be informed what security existed against improper appointments in the non-regulation provinces. He looked with extreme regret on what he regarded as steps towards the lowering, if not the extinction and supersession of the Civil Service, in which he

  1067
  recognized a body of independent English gentlemen of honour and integrity; and he doubted extremely whether, under any altered system which might be devised, public officers equally distinguished and equally capable of carrying on the government of India would be obtained.
  LORD LYVEDENobserved that the explanation which the noble Lord gave of the objects of the Bill to legalize appointments hitherto made of doubtful legality, and to a certain extent to open the service to uncovenanted servants, was a correct description of the measure as it was first introduced; but it had been materially altered in the House of Commons. Objections were urged to the Bill in its original from that the uncovenanted servant was not subjected to the same tests upon entering the service as the covenanted servants, and also that they were not prohibited from receiving bribes and taking presents, which for the sake of the purity and morality of the service ought to be the case, especially if these appointments were thrown open to them. The Secretary of State had some private conference with those who advanced these objections, and the result had been a complete alteration of the Bill, making the covenanted service even closer than it was at present. The schedule which had been inserted was proposed so late in the passage of the Bill that it had not received due attention in the other House, and it required a great deal of examination before it should be permitted to become law. When they came into Committee he should propose to strike out the second clause and the schedule, and the thought that there would be ample protection remaining for the covenanted servants. The Civil Service was, as every one knew, a very eminent body, but he did not think that on that account the Governor General should, in all cases, be bound to appoint persons belonging to that body when a person better fitted for the vacant office was to be found elsewhere. In this Bill there was no sort of sanction or authority given for the appointment of Natives; the consequence of this would be to place them further than ever from employment. If it was intended to exclude them it would be fairer and franker to say so at once. If not, why were not offices selected for competition at Calcutta whereby they might be admitted? they were not even named in it. But what he objected to in the Bill was its complete alteration without any reason being assigned, and he
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  hoped that it would yet be restored to its original shape.
  THE DUKE OF ARGYLLsaid, that this Bill was opposed by two noble Lords on opposite and contradictory grounds. The noble Earl opposite (the Earl of Ellenborough) alleging that the Bill was unjust because it opened the Civil Service of India, and his noble Friend behind him (Lord Lyveden) objecting that it rendered that service more close. Neither of these objections, however, was well founded. In the first sentence of his speech the noble Earl said that it would be an advantage to the Governor General to be able to appoint any person he pleased to any office which might be vacant. If that were so, then he could not admit that there was in any body of men a vested right which could preclude Parliament from giving to the Governor General as much of that power as it thought it safe to vest in his hands. The original object of making the Civil Service close was to protect the patronage of the Directors against the interference of the Governor General. Now, however, our object was to secure for the Civil Service in India the greatest number of the best men that could be got. The admission to that service was not obtained by competition, and, although he was not prepared to maintain that that system was a perfect one, yet he had always been of opinion that it was much superior to the old plan of patronage. It was surely important that, if the Governor General found one Civil Servant more competent for an office than another, he should be able to appoint him to it; and if there was a gentleman in India not in the public service who was competent to the conduct of public affairs it was certainly for the advantage of the public that he should be placed in an office where his talents might be employed. This Bill was undoubtedly a compromise between the principles of his two noble Friends, one of whom looked upon the Civil Service as a vested interest, and the other thought that the service, to a great extent, should be open. It left the Governor General as free as he was in practice, and more free than he was by law, to appoint to offices persons not belonging to the Civil Service. At present he was not by law entitled to appoint any person not a member of the Civil Service to many offices, but practically he exercised that power. It was now provided that Civil Servants should have the first claim if fit men were to be found in the service, but

  1069

  in default of finding such persons the Governor General was empowered to appoint the fit persons. As to the history of this Bill, it was true that the schedule referred to had been introduced to meet the objections of the Civil Servants in this country; but all that it provided was that the offices mentioned in it the Civil Servants should have the first claim. The Governor General might, however, appoint even to those offices persons not connected with the covenanted service, provided he could show to the Government at home sufficient reasons for the appointments, and the Government approved of them.
  THE MARQUESS OF CLANRICARDEbelieved that no Governor General could carry on the Government in strict conformity with the Act of 1793, for it was impossible that the members of the covenanted service should fill all the offices under the Government of India. He understood that not only had Lord Dalhousie and Lord Canning applied for military officers to fill what were really civil offices, but the commander of the forces in India had been obliged to refuse the number Lord Canning required. So far, therefore, as the Bill opened up the service he cordially approved of it. He was, however, disposed to move an Amendment in Committee, with the view of restoring the Bill to its original shape, so far as it referred to the duration of residence in India and required to entitle a person to be employed by the Governor General. He would propose that instead of seven years the period of time in India should be five years, which, he thought, would be quite long enough. He had, however, a more serious complaint to make against the insufficiency of the Bill. He thought that they had rather debarred than assisted the Natives entering into the Government service by this measure. There had been Parliamentary as well as Ministerial promises given from time to time to the Natives that they should be advanced to greater employment in the service of the Indian Government. The pledge had never been redeemed. It was mere mockery to tell the Natives that they might come over to this country and undergo an examination for Government offices. He submitted that public examinations should be opened in India for Natives, and that when they had qualified themselves by passing those examinations they should be eligible at once for employment by the Government in almost any office. It was not right, nor safe,
  1070
  nor honourable to palter any further with this question.
  Motion agreed to.
  Bill read 2a accordingly.
  THE EARL OF DERBYasked upon what day it was proposed to go into Committee on the two Bills? There was still a good deal of business before the House. He should certainly think it would be better to refer those Bills to a Select Committee of their Lordships' House; but, at this advanced stage of the Session, there might be some risk of losing the Bills altogether by such a course. At the same time, considering what had passed that night in reference to them, it was obvious that the details required mature consideration. As it was likely that many Amendments would be proposed it was desirable that the Committee should be appointed for such an hour in the evening when the attendance of Members of their Lordships' House would be more numerous than it was at present, rather than to bring on the discussion at such a time when the Ministerial side of the House would be represented by seven or eight Members, and the opposite side by only, perhaps, two or three.
  EARL GRANVILLEproposed to take the Committee on both Bills on Thursday.
  Bill committed to a Committee of the Whole House on Thursday next.

EDUCATION—SCHOOLS IN SOMERSETSHIRE.

  MOTION FOR A RETURN.
  THE BISHOP OF BATH AND WELLSmoved for a Return of the parishes in the county of Somerset, with a population less than 600, which received Government aid for the schools therein. The right rev. Prelate said he was induced to move for this Return in consequence of the statement made the other evening by the noble Duke who presided over the Colonial Department, on the authority of the Report of the Education Commissioners. He did not wish to say anything against that Report. On the contrary, he believed it to be a most able one. That Report, however, referred to certain tables which were drawn up by Mr. Stevenson in 1857, founded upon the authority of the Inspector's Reports in 1856. In that Report he found it stated that there were 71 schools in the county of Somerset under registered or certificated teachers. He had, however, before him a statement fully authenticated, that instead of 71 such

  1071
  schools in that county there were no less than 156. The Report went on to say that there were 282 parishes in the county, with a population of 600 and under, only one of which received Government aid. He had a paper before him, drawn up by Her Majesty's Inspector, which stated that, so far from it being a fact that the number was only 1 in 282 of these small parishes receiving Government aid, the number was really 1 in 9 1/2. He thought that a Report dated so far back as 1856 ought not to have been relied upon. It was also stated that in the county of Dorset the number of schools receiving Government aid was 1 in 17, in Devonshire 1 in 122. Seeing the mistake which had been made in regard to the county of Somerset, he tested the truth as regarded the county of Devon, and he found that the numbers should be 1 in 15. It should, however, be recollected that in many small parishes there were schools established by resident proprietors who neither sought or would receive Government aid. There were also in Somersetshire, a number of very small parishes where the children were educated to a certain point, and were then able to go to neighbouring and larger parishes where there were schools having certificated teachers, and receiving assistance from the Privy Council; and thus these small parishes benefited by Government grants. It was with the view of ascertaining the the real facts of the case he now moved for the Return of which he had given notice.
  Moved,—
  "That there be laid before the House, Return of the Parishes in the County of Somerset, with a Population of less than 600, which receive Government aid for the Schools therein."
  THE DUKE OF NEWCASTLEassured the right rev. Prelate that in the allusion which he had made to Somerset he had not the slightest intention of throwing any aspersions upon that county. His simple object was to explain why the Commissioners thought that the Privy Council system required some further assistance, and was not as complete as it was generally supposed to be. The inquiry of the Commissioners had extended over two years and a half, and the statistics collected at the commencement of their labours could not be perfectly accurate when they presented their Report; but in the Report it was stated that the Returns had been made two years previously. With regard to Somerset, the figures were made up in 1857; but in
  1072
  the case of three counties, which he quoted, at the close of 1858, the right rev. Prelate had transposed the mode of making the calculation. It was not based on a percentage, but on the number of schools receiving aid in a given number of small parishes. He had inquired at the Privy Council Office what alteration had taken place since the Return he quoted had been made, and he found that in 282 parishes in Somerset, with less than 600 inhabitants, 19 schools were receiving Government aid on the 31st December, 1860; so that 18 must have been added to the one which was returned in the table and referred to in the Report. He still maintained that there was an enormous deficiency of education in the smaller country parishes. He was aware that there were schools not included in these Returns. Upon many estates schools were supported by landlords, and he had every reason to believe they were well conducted; but it was worthy of consideration whether it was not better to place them under Government inspection. He hoped his explanation would be satisfactory; but if the right rev. Prelate had any wish to have the names of the nineteen schools there would be no objection to give them.
  LORD PORTMANsaid, that the greatest possible caution should have been exercised by the Privy Council in taking action upon the Report referred to. In Somerset there were a great many small parishes having the farmer and clergyman as the only residents, and no children to go to school; and many parishes where, with excellent schools, no inspector was admitted, because the patrons would not submit to their dictation. The gross number of 282 parishes with less than 600 population was, therefore, capable of a considerable reduction when discussing the general provision made for education in the small parishes of that county. The reason why the landowners in the west of England had been slow to place their schools under Government inspection was that they were very much alarmed at what were called the "management clauses;" but the progress of time has very much lessened their objections, and the regulations have been much mitigated and improved, and he was inclined to think that the time had come when they ought to consider whether Government inspection would not be a very good thing for them. One measure which, no doubt, would very much conduce to more schools being placed under

  1073
  inspection would be for the Government to furnish on a single sheet of paper all the requirements they would exact from those who desired to receive assistance. He must once more protest against the suggestion of the Commissioners to make schools a charge on the county rates nothing could be so injurious to education. He found on inquiry more reasons to doubt the assertions of the Assistant Commissioners who was employed in the western district.
  THE BISHOP OF BATH AND WELLSexpressed himself satisfied with the noble Duke's explanation.
  Motion (by leave of the House) withdrawn.
  House adjourned at a quarter past Eight o'clock, till To-morrow Half-past Ten o'clock.