Lords Sitting of 28 May 1866

MINUTES.
Sat First in Parliament—The Lord Ormonde, after the Death of his Father. Took the Oath—The Lord Farnham,
PUBLIC BILLS—First Reading— Companies' Act (1862) Amendment * (124); Solicitor to the Treasury * [125].
Second Reading—Ecclesiastical Leases (Isle of Man) * (68); Hop Trade * (123).
Third Reading—Land Drainage Supplemental * (106); Cattle Assurance * (83), and passed.

COURT OF SMALL CAUSES (BOMBAY)—REMOVAL OF MR. MANOCKJEE CURSETJEE.

  MOTION FOR PAPERS.
  LORD CHELMSFORD, in rising to move—
  "That there be laid before this House the Copy of a Letter from Mr. Manockjee Cursetjee, One of the Judges of the Court of Small Causes at Bombay, to the Secretary of State for India, dated the 7th February 1866; together with all Enclosures and Papers accompanying the same:
  And Copies of all Correspondence with and Minutes of the Bombay Government relating to a Report in the Newspapers of a Discussion which occurred in the Court of Small Causes between Mr. Crawford, a Solicitor of Her Majesty's High Court, and the said Mr. Manockjee Cursetjee,"
  said: The case to which I have to direct jour Lordships' attention is one that deserves your most serious consideration. The papers which I propose to road relate to the conduct of the Bombay Government towards one of its Judges—conduct which I think was calculated to deprive him of all weight and character in his position as Judge, and which must have had the effect of preventing him from independently discharging his judicial functions, besides having a prejudicial effect on the administration of justice throughout the whole of the Presidency. That conduct has, I am sorry to say, received the countenance of the late and also the present Secretary of State for India. The Judge to whom I have referred is Mr. Manockjee Cursetjee, a Parsee gentleman, who has for more than fifteen years held judicial office in Bombay, during eleven of which he has been one of the Judges of the Court of Small Causes in that place. He is a gentleman who is very highly esteemed for his judicial qualifications and for the independence and integrity of his character, as will appear to your Lordships in the course of the statement I have to make. I will proceed to state the circumstances to your Lordships as plainly and as briefly as I can. In the month of August, 1864, an action was brought in the Court of Small Causes against a railway company for the non-delivery of one bale of goods out of ten, which had been given to the company to carry and deliver. Mr. Manockjee Cursetjee was the Judge who presided at the trial, and Mr. Crawford, a solicitor, appeared on behalf of the railway company. He admitted the non-delivery, and consequently the only question to be determined was the value of the bale. In

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  the course of the evidence given by the plaintiff, in describing the contents of the bale, he made use of the term "hurdas." Mr. Crawford professed not to understand the meaning of the term. A discussion took place, and in the course of it an observation was made by the Judge which was regarded by Mr. Crawford as an affront; who, after using some strong language, left the court. In the following issue of the Bombay Gazette there appeared what purported to be a report of the proceedings at the trial, but which was very inaccurate and highly exaggerated; and as I understand there was no reporter of any of the newspapers in the court, nor any one capable of taking notes, and as Mr. Crawford threatened as he left the court that he would publish the proceedings, I do not think it will be considered unfair if I attribute that report in the Bombay Gazette to him. However this may be, the report to which I have referred was the ground upon which the Government of Bombay thought proper to proceed in the matter, and therefore it will be right that I should draw the attention of your Lordships to a portion of it. In the course of the trial the plaintiff, being cross-examined, said, speaking of the contents of the bale, that they were "hurdas," and cost 209 rupees—
  "Mr. CRAWFORD: But I want to know what 'hurdas' are. The plaintiff sues for a bale of piece-goods, and to test the value of his statement as to the value, I must be informed what kind of piece-goods they were—grey shirtings, madapollams, T cloths, jaoconets, or what.
  "The JUDGE: The man tells you they were 'hurdas.'
  "Mr. CRAWFORD: But what is a 'hurda?'
  "The JUDGE: Never mind about that; he bought' hurdas,' and sues for 'hurdas.' If you were a native you would know what 'hurdas' are.
  "Mr. CRAWFORD: But I am not a native, and I don't know.
  "The JUDGE; Oh, then I'll postpone the case that you may go into the Marwarree Bazaar and find out, you know; and the plaintiff by that time will get his evidence from Sholapore, you know.
  "Mr. CRAWFORD: I presume this is an English court of justice, and that the proceedings must be conducted in English, not in Marwarree.
  "The JUDGE; It is not an English nor a native court; it's the Small Cause Court. You can go into the bazaar and find out what a 'hurda' is.
  "Mr. CRAWFORD: I shall do nothing of the kind, and I consider your conduct impertinent and highly improper. I will not permit myself to be so addressed if I can help it. I shall report the matter to the full court.
  "After a considerable amount of shrill vociferation from the Judge, and no very mild retorts from the advocate, Mr. Manockjee proceeded—
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  "Now, Mr. Crawford, do you intend to call evidence?
  "Mr. CRAWFORD: I decline to proceed any further before your honour; if I knew what a 'hurda' was I should call witnesses to value; as it is I decline to do anything. I did not expect much law here, but I am at least entitled to civility.
  "The JUDGE: Verdict for plaintiff for 209 rupees and costs, certified.
  I think your Lordships may gather from this report that Mr. Crawford was insulting and irritating, and the Judge provoked and angry; but even with all the addition which may be imagined of tone and manner, it hardly appears to have been a sufficiently serious matter to justify the interference of the Government. Your Lordships will observe that there is no charge against the character of the Judge, no allegation of anything discreditable in his conduct; but at the worst, nothing more appears than a mere want of temper. The Bombay Government, however, thought proper to take the matter up, and a letter was addressed to the first Judge of the court in these terms—
  "Sir,—The attention of the Government has been attracted to a report in the newspapers of a discussion which occurred in the Court of Small Causes between Mr. Crawford, a solicitor of Her Majesty's High Court, and Mr. Manockjee Cursetjee. I am directed to request that you will ascertain and report whether Mr. Manockjee Cursetjee admits the substantial accuracy of the report and Mr. Crawford's remarks, and whether he wishes to submit any observations to Government regarding them.—I have the honour to be, sir, your most obedient servant,
  "H. L. ANDERSON,"
  Chief Secretary to Government."
  In answer to that letter Mr. Manockjee Cursetjee sent to the Government a copy of the reports that had appeared in the Bombay Gazette, accompanied with his observations upon them, showing that in various parts they contained very grave inaccuracies. He also sent a report of an application made to the full court against him by Mr. Crawford, which he must have known had no jurisdiction in the matter, and therefore he could only have used the motion as an opportunity of additional insult to the Judge. It exhibits, however, the tone and temper ordinarily displayed by Mr. Crawford, and might have made the Government a little cautious as to interfering in a dispute in which he was concerned. If nothing more had occurred than the mere notice of a newspaper report by the Government of Bombay and an application to the Judge to answer it, although I should have thought their inter-

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  ference under the circumstances injudicious, I should not have thought it necessary to have brought the matter before your Lordships. But the next step taken by the Bombay Government was one of so extraordinary and unaccountable a character, that when it was first brought to my attention I could hardly believe but that there must have been some mistake. My Lords, it is a fact that without any further communication with the Judge, without stating whether his explanation was satisfactory or not, or requiring anything be yond it, without any intimation of their intention, they published, or at least they sent to the editor of the Bombay Gazette a copy of a letter which was addressed to the first Judge, with permission, and almost, indeed, with a direction to publish it. Now, my Lords, that letter conveyed a very severe censure upon the Judge for his want of courtesy towards Mr. Crawford—a condemnation based on a general impression that Mr. Manockjee Cursetjee did not sufficiently consider the feelings of the gentlemen who practised in his court; the strange enunciation of a maxim that where a dispute arises between an advocate or solicitor and a Judge it must be assumed that the Judge was in the wrong; and it conveyed a very severe rebuke for the past, and a solemn warning for the future. Your Lord ships may think I am guilty of some exaggeration in thus stating the contents of the letter, but in order to dissipate such an impression I will at once proceed to read to your Lordships a portion of it. It is headed "Judge Manockjee and Mr. Craw ford," and says—
  "The following communication has been placed at the disposal of the press by Government:—
  "On a consideration of the statements of Mr. Manockjee Cursetjee and of Mr. Crawford, after discarding all discrepancies as to minor facts, the honourable the Governor in Council is of opinion that there can be no doubt as to the principal point in dispute—namely, that the Third Judge of the Court of Small Causes did tell a solicitor pleading before him, as representative of the G. I. P. Railway Company, that if he did not know what a certain technical native expression implied he should go to the Marwarree Bazaar and find out. The honourable the Governor in Council is compelled to express his opinion that this language under any circumstances was most unbecoming. It might be palliated in some measure by extreme provocation on the part of the advocate, but the honourable the Governor in Council is bound to say that he cannot discover that Mr. Crawford in any way provoked the remarks which he justly deemed offensive, or that he said or did anything which was not suggested by a just regard for the interests of his clients. It is painful to the honourable the Governor in
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  Council to record an opinion which may give distress to a zealous and high-minded servant of the public. His Excellency in Council recognizes in Mr. Manockjee Cursetjee many valuable qualifications for the judicial office, incorruptible integrity, fearless independence, energetic zeal to ascertain the truth, an honest scorn of all chicanery, and very considerable acumen in estimating the value of evidence. On the other hand, the Governor in Council cannot resist the general impression that Mr. Manockjee Cursetjee is not always sufficiently regardful of the feelings of the gentlemen who S practise before him. Advocates and solicitors are, as educated gentlemen, so habitually conscious of the respect due to the judicial office, that it may, as a rule, be concluded that when any altercation arises it will be the Judge who is in the wrong. The fact that Mr. Manockjee Cursetjee is not of English birth is one which would only induce a gentleman of Mr. Crawford's character and professional position to he more cautious that there should be no diminution of the respectful consideration to which a Judge is entitled. The honourable the Governor in Council would, therefore, earnestly impress upon Mr. Manockjee Cursetjee the duty of not obscuring his many high qualities, and of not detracting from his usefulness as a public servant, by an indulgence in petulant and irritating remarks. He should consider that he will be regarded by the general public as a representative man, and that he may possibly in some degree injure the best interests of the inhabitants of India if he give occasion for an opinion that a Parsee gentleman cannot preside over a court of justice without entering into unbecoming conflicts with the counsel before him."
  Now, consider the effect of such a document proceeding from a Government in condemnation of a Judge, for at least a trivial offence, and proclaimed to the world in the columns of a newspaper? We generally consider that we ought to look with great forbearance on greater faults than these on the part of a Judge—that he is not to he condemned unless on very sufficient evidence, and that it is destructive of the interests of justice if any unnecessary exposure of his conduct is made. But here a Judge is condemned for a slight offence, at the utmost upon a general impression. And although it may be literally true, as I admit it to be to some extent, that when an altercation takes place in court between an advocate and a Judge, the Judge is usually the first to blame, because he may by always showing due respect to those who practise before him, secure proper respect being paid to himself, yet this ought by no means to be taken as a general rule, and nothing can, at all events, be more imprudent and injudicious than for a Government to proclaim this as a maxim on which their judgment is founded, or will be founded in any future case that may be brought before them.

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  What other effect can such a mode of procedure have than to encourage rough-mannered practitioners who are desirous of carrying a particular point by storm, or who wish to wreak their vexation for their want of success upon the Judge, to insult and browbeat him, secure in their possession of this vantage ground, that if he rebuke them as he ought to do, and any altercation takes place, it will be assumed by the Government that the Judge was in the wrong. This letter was published in the newspaper the day before Mr. Manockjee Cursetjee left Bombay, but in due time he sent a Minute in answer to the letter to the Governor and President in Council, and I think your Lordships will say, if your Lordships will give attention to the correspondence, that the conduct of Mr. Manockjee Cursetjee was throughout the whole of this affair most forbearing and judicious. He says in the Minute—
  "The day before I left Bombay for this, I found published in the columns of a newspaper of the 12th a letter from Mr. Chief Secretary Anderson, dated the 11 the instant, addressed to my learned Colleague the acting First Judge, conveying the opinion of the Honourable the Governor in Council on the subject of my last Minute answering the Government reference, and showing what actually did occur, and how absolutely were the real facts and circumstances perverted, and the words passed between me and Mr. Crawford in the course of the discussion misrepresented in the columns of the Bombay Gazette. I have read this letter with surprise and sorrow. Surprise because I read it only in the columns of the newspapers, and have as yet been favoured with no official intimation thereof; and sorrow because I find myself constrained to prolong a discussion which, on several considerations, I wished had died its natural death."
  He then goes on to speak of the relations between advocates and solicitors who appear in the court, and the Judge, and gives some instances of the conduct of certain solicitors—among others Mr. Crawford himself—to show how ready they are to take advantage of a Native Judge, and he concludes in these words—
  "I have addressed this Minute for the consideration of the Honourable the Governor in Council, and with a request that as the Government letter under review has been caused to be published in the columns of the newspapers, my last Minute, as well as this, with Government resolution thereon, may also be given to the public through the same channel."
  I put it to your Lordships, could he have asked anything less, and was it not essential that he should have had at least this redress in order to place him in a proper
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  position before the public? But what was the answer?
  "I am desired to explain, with reference to your complaint, that this letter found its way into the columns of the newspapers before you had been allowed the opportunity of seeing it; that a copy of it was placed in the editors' room at the time the original was despatched to the First Judge of the Small Cause Court."
  My Lords, I am perfectly astonished at this. There does not appear to have been any feeling of the impropriety of the publication of the letter in the papers at all, and all the Government endeavoured to explain was that the copy of the letter was sent to the editor at the same time that the letter was sent to the First Judge, and might have reached the hands of Mr. Manockjee Cursetjee. The Government letter goes on to say—
  "I am now directed by the Honourable the Governor in Council to inform you that an attentive perusal of your letter has not convinced Government that the view taken of your proceedings was wrong, and that Government does not think that any good result will be obtained by continuing the discussion."
  In other words the Government said to Mr. Manockjee Cursetjee, "you have been disparaged and degraded; but never mind, submit patiently and proceed with your duties." But Mr. Manockjee Cursetjee entertained a very different impression, and acted upon it with great spirit and propriety. He seems to have been on very intimate terms with the distinguished Governor of Bombay, and he wrote to Sir Bartle Frere as follows:—
  "Villa Byculla, 30th December, 1864.
  "My dear Sir Bartle,—I received this morning a Government letter on the subject of the late correspondence. I have just returned from Mr. Inverarity and your brother, telling them that I sit with a broken heart and reluctant hand to announce to your Excellency my intention of resigning into your hands from the 1st February my office on the Bench of the Bombay Court of Small Causes. Under the circumstances mentioned in my Minute, and consistently with the sincerity of my feelings conveyed in its paragraphs 43 and 46, I feel I could not with any degree of self-respect and independence maintain my position on the bench of that tribunal, which I held for more than eleven years without a moral stain, without being rebuked by Government, except in the instance in question—grounding the rebuke on no other foundation than 'general impressions,' which I felt mortified at. Pardon, I beseech you, Sir Bartle, my want of ceremony in giving vent to the outpourings of my burning heart. But you know I do not, and will not, dissimulate my sentiments, and be assured that whatever I have to think of Government measure—whatever may be my feelings thereon—whatever the extent of my misfortune thereby—and be what my future lot of life—I will not

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  suffer (and hope you also will not) any link in the chain of our long existing acquaintance—I may, with pride, add friendship—be broken."
  To show the estimation in which this gentleman was held by the Governor, I may refer to a letter received by him immediately afterwards, in which he was requested by the Governor not to press his resignation—
  "My dear Manockjee,—Your letter of the 30th, which reached me on my way from Nassick, has caused me extreme regret. I think you are quite wrong to tender your resignation, and I am sure I Should be wrong to accept it, at least until we have had an opportunity of further discussing the position in which your correspondence with Government has placed you, which you seem to me to have greatly misunderstood. I cannot go into the question satisfactorily in a hurried note, but I hope to be back in Bombay next week, and shall be glad to see you as soon as I return, and discuss the matter more fully; when, unless you are much less reasonable than of old, I feel sure I shall convince you you are wrong."
  After this the Governor and Mr. Manockjee Cursetjee had an interview, and on that occasion the Governor still pressed him not to tender his resignation, but Mr. Manockjee Cursetjee felt that in the position in which he was placed it was impossible for him to continue on the bench with any regard to his own character, or to the efficient administration of justice in his court, and he therefore wrote his final determination to the Governor in the following terms:—
  "As far as your Excellency is concerned I feel satisfied that personally you cannot do more than telling me that you were sorry that that unfortunate resolution which I felt hurt at had been at all published, and in the way it was worded: that it was not intended for publication, and should have been differently worded."
  I must pause here for a moment to say that I strongly suspect the Governor was not at all aware of the publication of the letter. Mr. Manockjee Cursetjee goes on to say—
  "But as it has been given out to the world by the Government Secretary in the words in which it was constructed, and after I have shown in my Minute from Matheran that the severity of the rebuke administered to me was neither called for by the facts of the case, nor deserved on my part, and after having expressed my feelings and assurance that 'if I wholly deserved that rebuke; if there had been no extenuating circumstances to soften its severity, my conscience tells me I am no longer worthy of holding my position on the Bench,' &c, I cannot and will not place myself in a false position by acting differently to what I have professed. I have deeply pondered over and weighed what your Excellency so kindly and feelingly expressed on the subject of my position and the position of Government, and I ardently wish
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  I can form any other resolve than what I contemplate acting on—namely, unless my Minutes with their respective appendixes placed in the editors' room, with such resolution thereon as will take away the effect of the sting under what I lay suffering by the Government measure, I cannot without forfeiting self-respect and independence, nay, with any peace of mind, continue to hold and maintain my position on the Bench of the Small Cause Court. If Government will do this as a matter of insâf (favour it will be wrong in me to ask, and I will not ask it I then my next course will be to withhold sending in my resignation till the result of an appeal to the Secretary of State, and pending which to absent myself from the Court by applying for a furlough or leave on urgent private affairs. Your Excellency at our last meeting said that you would call for the papers and look into them once more, and let me know the result. I entreat you to expedite it. I earnestly entreat your forgiveness for this intrusion, and if I seem presumptuous on what I have aforesaid in my wonted fervid style, I beg you will divest your mind of any idea that I thereby wish or desire that your Excellency as a Governor, in finally disposing of this (my unfortunate) case, should act on any other than public consideration. It will, indeed, mortify me to have it supposed or insinuated that I, who ever stood foremost in reprobating Khutputism, should have sought or ventured to seek its despicable agency in my own case."
  My Lords, Mr. Manockjee Cursetjee then wrote a letter to the Secretary of State for India, which states the whole case so clearly, distinctly, and forcibly, that although it is long, I am afraid I must trespass on your Lordships' patience by reading it in order that your Lordships may understand the knowledge of the circumstances of the case possessed by the Secretary of State for India when he refused to interfere with the course adopted by the Bombay Government. The letter is as follows:—
  "The Right Honourable Sir Charles Wood, Bart., Secretary of State for India.
  "Right Honourable Sir,
  "Your Excellency's despatch on the correspondence between the Government of Bombay and myself I hear has reached Bombay. That despatch was a laconic one, comprised in one brief sentence, that you saw no cause to interfere in the matter. You neither touched upon the merit of the case nor expressed any opinion whatever on the grave question raised by the said correspondence, and particularly my Minute of the 27th of October, 1864—namely, violation on the part of the local government of the first principle of administering justice—judicial independence.
  "As the publication of your opinion on the said question is of essential importance, not to me only, but to every judicial officer in India, I trust you will not consider me either presumptuous or importunate in venturing respectfully to request you will be pleased to make that opinion public. The following brief recital of facts on record will ren-

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  der clear the magnitude and importance of this representation to you:—
  "As a Judge of the Bombay Court of Small Causes, I was called upon by the Government of Bombay, by a letter dated 19th August, 1864, to offer observations on a newspaper report by which their attention was attracted—a report not alleging any malversation of office, but stating at most an alleged want of courtesy in one particular instance, to (I may add, as the very report proves him to be) an insolent solicitor!
  "Although no judicial officer is legally or constitutionally bound, as I have been advised, to respond to such an invitation, I did so out of respect to the Government and considered the matter at an end. But the next thing I heard to my amazement and sorrow was that without any further communication with me Government had published in the Gazette a letter, to the address of the Acting First Judge, dated 11th October, 1864, giving not only an opinion on the case reported in the newspaper, but adding that the Governor in Council cannot resist the 'general impression' that I am not always sufficiently regardful of the feelings of the gentlemen who practised before me. And this is superadded by a declaration that 'advocates and solicitors are, as educated gentlemen, so habitually conscious of the respect due to the judicial office, that it may, as a rule, be concluded that when any altercation arises it will be the Judge who is in the wrong.'
  "I feel persuaded you, Right Honourable Sir, cannot and will not uphold the proceedings of the Bombay Government in the above respect. To do so would be to strike a sad blow to judicial independence and destroy the usefulness of a Judge, and particularly a Native Judge of fifteen years on the bench—one who has hitherto stood so high in the estimation of the Government as to have been frequently complimented, and even in the letter of the 11th October, 1864, in the highest terms, by regarding me,' a zealous and high-minded servant of the public,' and recognizing in me 'many valuable qualifications for judicial office, incorruptible integrity, fearless independence, energetic zeal to ascertain the truth, an honest scorn of all chicanery, and a very considerable acumen in the estimation of the value of evidence.'
  "These are terms of commendation of which a Judge on the bench of any tribunal in any country cannot but feel proud.
  "It is, Right Honourable Sir, both on personal and public considerations that I am constrained to persist in continuing the discussion. I consider it a duty which I owe to the Government, the governed, and myself to defend the honour, integrity, and independence of my position as a Judge.
  "The strong view I have taken of the Government measure from the outset has been endorsed by the late Advocate General, the Honourable Mr. Lewis, and other barristers and practitioners at Bombay, whose opinion I appended to my letter to the Bombay Government of the 12th April, 1865, for the purpose of being transmitted to you, and I now do myself the honour of inclosing a letter from the Vice Chancellor, Sir Page Wood, to show the view this eminent law authority in England has taken of my case.
  "I respectfully but earnestly request you, Right Honourable Sir, to take a fresh and enlarged
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  view of this reference to you on the facts recorded as aforesaid, and publish your opinion—
  "First,—Whether you will uphold the act of the Bombay Government, in voluntarily taking notice of a newspaper report of a discussion between the Bench and the Bar, as in the instance in question?
  "Secondly,—Whether you will endorse the opinion proclaimed by the Bombay Government that 'advocates and solicitors are, as educated gentlemen, so habitually conscious of the respect duo to the judicial office, that it may, as a rule, be concluded that when any altercation arises it will be the Judge who is in the wrong?'
  "Thirdly,—Whether the local government is warranted in publicly censuring a Judge, as in my case, on a resolution founded upon a 'general impression?'"
  Your Lordships will observe that in this letter was enclosed the letter of that eminent and learned Judge, Vice Chancellor Sir Page Wood, and I should have thought that the opinion of so high minded, dispassionate and judicious an authority would have had some weight with the Secretary of State for India. It does not appear, however, to have produced the slightest effect upon his mind, for this short answer was returned to the letter I have read—
  "India Office, S.W., 8th March, 1866.
  "Sir, I am directed by the Secretary of State to acknowledge the receipt of your letter of the 7th ultimo, and to state that the proceedings in your case were transmitted by the Bombay Government to him at your request, and that his reply was addressed to that Government on the 9th August last. As you seem to have left Bombay before this despatch reached the Government, I am directed to apprise you that the Secretary of State therein stated that he saw no reason to interfere with the course adopted by the Government, and to add that Lord de Grey concurs in that decision. I am, Sir, your obedient servant,
  "HERMAN MERIVALE.
  "Manockjee Cursetjee,
  "Hill House, Southampton."
  The Government of Bombay had done nothing to repair the mistake (to call it by no stronger name) which it had made, and although the subordinate Government was responsible in the first instance for the course taken in the matter, as the Secretary of State when appealed to refused to interfere, he must be assumed to have sanctioned what had taken place. It may be extremely disagreeable to censure, even in the slightest degree, so eminent a public servant as Sir Bartle Frere, but all private feelings should be merged in the performance of public duty.
  EARL RUSSELL: Not private feelings, but public feelings.
  LORD CHELMSFORD: I do not care whether they are public feelings or private feelings; what I mean to say is, that by refusing to interfere, the Secretary of

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  State for India virtually sanctioned tins proceeding of the Bombay Government. Now, my Lords, let us see what was the conduct with which the Secretary of State thought it was not his duty to interfere. It was this. The Government of Bombay, upon a newspaper report of what at the most was a mere want of temper on the part of a Judge, had called upon him to answer a charge thus irregularly brought to their notice, and had condemned him in strong terms, proclaiming their condemnation and censure through the columns of a newspaper far and wide throughout the whole country. What, my Lords, must have been the effect of this? In the first place, almost necessarily, to deprive the public of the services of a Judge, who is admitted to possess the highest qualifications for the judgment seat, for Mr. Manockjee Cursetjee cannot possibly consent to remain upon the bench, until his character has been set right with the public; nor can he, until the stigma under which he now labours is removed, continue to exercise his office of Judge to the public advantage. And with regard to all the Judges throughout the Presidency it has been proclaimed that they must be careful how they endeavour to repress the over forwardness or petulance of advocates, for if they should do their duty by repressing any manifestations of over eagerness and zeal, and a collision should take place, it will be assumed by the Government that they were in the wrong, and thereby the independent and proper exercise of their functions will be entirely prevented. These considerations appear to me to be so serious and so important that as one who still takes a part in the administration of justice, and who has a strong feeling for the dignity and independence of the judicial office, I have thought it my duty to bring the matter forward, and to move for the production of the papers, which will give the House all the information that is required in reference to this case.
  Moved, That an humble Address be presented to Her Majesty for,
  Copy of a Letter from Mr. Manockjee Cursetjee, One of the Judges of the Court of Small Causes at Bombay, to the Secretary of State for India, dated the 7th of February 1866; together with all Enclosures and Papers accompanying the same:
  And Copies of all Correspondence with and Minutes of the Bombay Government relating to a Report in the Newspapers of a Discussion which occurred in the Court of Small Causes between Mr. Crawford, a Solicitor of Her Ma-
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  jesty's High Court, and the said Mr. Manockjee Cursetjee.—(The Lord Chelmsford.)
  EARL DE GREY AND RIPON: The noble Lord who has just sat down has expressed his opinion in very strong terms on the course that has been taken in this case by Sir Battle Frere, the Governor of Bombay, and by the Government of that Presidency. I must, in the outset of my reply, request your Lordships, in looking at the question which has been brought forward by the noble and learned Lord, to remember that in all matters connected with India we should look rather to what is the Indian practice than to what may be the practice in similar cases in this country. One of the principal points to which the noble and learned Lord has adverted, as brought forward by Mr. Manockjee Cursetjee, in the letter which he has read, rests upon the idea that the course which the Government of Bombay took in the first instance by addressing an inquiry to Mr. Manockjee Cursetjee, in regard to the report of a trial which appeared in the newspapers, in obtaining his explanation, and in not only expressing their opinion on his conduct in the form of a censure, but also publishing it in the newspapers, the proceedings of the Government were very objectionable, and calculated to interfere improperly with the independence of the judicial office. Now, I understand that in taking notice of a matter of this sort the Bombay Government were only taking a course for which they had numerous precedents, and that even in the case of the Zillah Judges, who occupy a much higher position than that of the Judges of the Court of Small Causes, having both original and appellate jurisdiction, it has always been the practice arising out of the peculiar circumstances of India that the Government should, when they thought necessary, make communications of this nature to judicial officers of that rank, and consequently they could not, as a matter of course, neglect to communicate to judicial officers of a lower rank their views with regard to the way in which those officers conduct their business. Your Lordships will understand that I do not refer to any interference with the Judges in respect to their decisions in particular cases, which would, of course, be very improper; but to such notice as was taken by the Government of Bombay of what they believed to be a defect of temper and of manner on the part of Mr. Manockjee Cursetjee. No doubt, such criticisms on the conduct

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  of any judicial functionary would not be desirable in England; but I am informed that it has always been the practice in India, where it has been necessitated by the circumstances of the country; therefore, your Lordships will see that in addressing a letter of this description, that is to say, in criticizing the conduct of Mr. Manockjee Cursetjee, the Government of Bombay were simply doing that which had been done in many cases before, and which had been done some years before—I shall not, of course, name the gentleman to whom I refer—in reference to an officer of the very same court as that to which Mr. Manockjee Cursetjee belongs. So far, then, as relates to the question of whether in addressing to a judicial functionary of this rank criticisms of this description, the Government of Bombay acted contrary to the practice, it is clear that they did not do so, and consequently my noble Friend (Viscount Halifax), who is not now in the House, was right in not interfering with the line of conduct which the Government of Bombay felt themselves called upon to pursue in this respect. The noble and learned Lord has read a letter which was addressed by the Government of Bombay to Mr. Manockjee Cursetjee. I do not say that I think that letter was in all respects judicious. I think that some portions of that letter lay down a principle or leading idea with regard to disputes between practitioners and Judges which is no doubt open to dispute; and so far I concur with the noble and learned Lord in his objection to the expression used by the Government in that letter, that where an altercation occurs between a Judge and an advocate, the Judge is probably to blame. I should not myself lay down such a doctrine; but there is no doubt that the cases must be very rare in which any Judge ought to allow himself to get into an altercation with any person practising before him. But in their letter the Government of Bombay convey to Mr. Manockjee Cursetjee that his manner towards those who practised before him had on certain occasions been intemperate. [Lord CHELMSFORD: That is stated as a"general impression."] The noble and learned Lord has, on this occasion, one advantage over me—he has in his possession the letter of the Government of Bombay, and he has quoted that letter to your Lordships; but as I do not intend to lay it on the table, I cannot refer to it. I have carefully examined the matter, so far as regards the question of precedent,
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  and if the Government of Bombay, in stating to Mr. Manockjee Cursetjee that they considered his conduct in regard to the practitioners in his court was not calculated to uphold the dignity of his office, were justified in that impression, I do not think it inconsistent with the practice of the Indian Government to bring the matter to the notice of the Judge. The letter is one which, as the noble and learned Lord has said, is very complimentary to Mr. Manockjee Cursetjee; but it also conveys the opinion of the Government that he had exceeded his strict line of duty, and had created a feeling in the minds of those who attended his court that he was not sufficiently regardful of their feelings. But then we come to another point, which is started by the noble and learned Lord—namely, that the letter was published; and in regard to this point, I have to explain to your Lordships the manner in which that letter came to be published. I was not aware until it was brought under my notice on this occasion that there has been in practice for several years a system by which there is in connection with the Government offices of each of the three Presidencies what is called an editor's room, in which the Government with the view of giving accurate information on matters on which they desired the public to be accurately informed lay papers, and permit the editors of newspapers, or other persons in their behalf, to go there and peruse them. It appears that the letter in question was placed in the editor's room in Bombay, and I entirely agree with the noble and learned Lord, that the publication of the letter was an aggravation of the censure which it conveyed; but I have the authority of Sir Bartle Frere for stating that the publication of the letter took place through some inadvertence.
  LORD CHELMSFORD: I had omitted to state that there is a letter of Mr. Manockjee Cursetjee, in which he states that himself.
  EARL DE GREY AND RIPON: Sir Bartle Frere says he regrets that the publication of that letter took place. There is one other point which I think it is necessary should be cleared up in reference to this subject, and that is in reference to Mr. Manockjee Cursetjee having first seen the letter in the newspapers. It has been explained to Mr. Manockjee Cursetjee that this arose from the fact that the letter was sent in the usual course to the First Judge of the Small Causes Court; but as

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  Mr. Manockjee Cursetjee left Bombay on the same day, he did not receive it until some considerable time had elapsed. This is all I have to say with regard to the course taken by the Government at Bombay. It appears to me that in drawing attention to the manner in which Mr. Manockjee Cursetjee conducted the business of his court, the Government of Bombay were not exceeding what according to precedent was right. In regard to the publication of the letter, I concur in the view expressed by the noble and learned Lord; but I thought it due to so high an officer as Sir Bartle Frere, with whose eminent talents and services your Lordships are acquainted, not to pass a censure upon him until I had ascertained what his view of the matter was, and I have recently received a letter from him, the contents of which I have already stated. I now come to the question, what was the course taken by the Secretary of State for India in reference to this matter? In the first place, the correspondence was sent home by the Government of Bombay, at the special request of Mr. Manockjee Cursetjee; it came home some time last year, and an answer was sent to India. Viscount Halifax, who was then Secretary for India, looking at the question with which he had to deal—namely, the course taken by the Bombay Government, and finding that it was in accordance with the usual practice, declined to interfere with the discretion exercised by the Government. When I entered upon the office which I have the honour to hold, I found the letter which the noble and learned Lord has read from Mr. Manockjee Cursetjee. Your Lordships will have observed that in that letter Mr. Manockjee Cursetjee asks for answers to three questions—
  "First,—Whether you will uphold the act of the Bombay Government, in voluntarily taking notice of a newspaper report of a discussion between the Bench and the Bar, as in the instance in question?
  "Secondly,—Whether you will endorse the opinion proclaimed by the Bombay Government that, 'advocates and solicitors are, as educated gentlemen, so habitually conscious of the respect due to the judicial office, that it may, as a rule, be concluded that when any altercation arises it will be the Judge who is in the wrong? '
  "Thirdly,—Whether the local Government is warranted in publicly censuring a Judge, as in my case, on a resolution founded upon a 'general impression?'"
  Now, I do not think it would be desirable for the Secretary of State to get into the habit of answering general questions of
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  this kind put to him by officers of the Government, and I certainly did not think it right to answer these; but I have to state to your Lordships in regard to the first question, that I think, under the circumstances, the Government were justified in calling on Mr. Manockjee Cursetjee for an explanation of conduct which seemed to them to render it doubtful whether he had been acting in a judicious manner. In regard to the second question, I may say that perhaps the Bombay Government used rather a strong phrase with reference to disputes between Judges and advocates; and, with regard to the third point, I think that the Government of Bombay were not, under the circumstances, precluded from calling attention to the matter. Sir Bartle Frere wrote, "I regret the publication of the letter myself," and I do not think that your Lordships would have wished me to pass a public censure upon him for his conduct in that matter. I have expressed my own opinion, and I have been authorized to express his. With respect to the production of these papers, I trust that the noble and learned Lord will not persist in calling for them, inasmuch as there is at all times great inconvenience in producing papers and minutes that have passed between the Government and its own officials. I think that the doing so on this occasion might set an inconvenient precedent. The whole case is now practically before your Lordships, and I think it would not be to the advantage of the public service for me to produce the papers asked for.
  THE EARL OF ELLENBOROUGH: I have the highest possible respect for Sir Bartle Frere, as one of the best Governors of a Presidency which the records of Anglo-Indian history can produce. He is a worthy successor of Sir John Malcolm. He does everything he can to promote the welfare of the natives, and by his popularity among them, he strengthens the British Government in India, It is a matter of great satisfaction to me that Sir Bartle Frere is to a very small extent mixed up in this matter. It appears to me that he did not intend, in the first instance, that the letter should be given to the world, and he has since disapproved of that publication. I feel convinced that he never saw the letter. The instruction was no doubt given probably to the Secretary to write a letter in a certain sense, and probably no one thought it worth while to read the Secretary's letter, and the Secre-

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  tary sent the letter to the editor's room, and so it got published in that roundabout way before the person who was most interested in it knew anything at all about it. This, however, is a matter of very serious moment. In the first place, it affects the position of a gentleman who has been fifteen years in the judicial service, and eleven years in the office of Judge of the Court of Small Causes. He has, in that character, received, in the letter which has been read, the highest praise for his qualifications, possessing qualities of a most remarkable character, and it appears that for what was a very doubtful offence, he was censured in terms which made his resignation of his office absolutely necessary, not merely as a matter of etiquette, but as a matter of duty, for it is impossible that he could have continued to have performed his duties as a Judge after that censure was passed upon him to the benefit of the public service; consequently, the letter forced upon him his resignation, which, at his time of life, must very materially affect his prospects and those of his family. The matter is much worse than that. It has been a subject of doubt with many who have considered the question, whether it would be possible to employ Native Judges where European interests were concerned, because the Europeans do not treat the Native Judges as they would treat an English Judge in this country. Every European believes himself to be as one of the conquerors of the country in every respect superior to the Judge before whom he is placed. There is also a difficulty in finding the natives to fulfil these offices. If the Government throw its whole weight in favour of an English attorney appearing before a Native Judge in Bombay and forcing him to his resignation, your Lordships may be sure that the Government will have rendered it perfectly impossible for a Native Judge in Bombay, or in any part of India where Europeans may come before him, to continue to hold his position, however great his qualifications may be. I think that this is a very serious matter. It is, I believe, the desire of the Government, and certainly the desire of the great majority of the people of this country, that the natives of India should be promoted to higher situations than they have hitherto filled in the public administration under European superintendence and with due regard to the future security of our Empire. But there is a party in India, and a very strong party
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  it is, which entertains a totally different opinion. They appear to think it wrong for Europeans to employ a native in any position which a European could fill. I will not say in the language of one learned authority in this country that that is all a plot, but I have an idea that it is all combinations. It is quite clear from the words used by the Attorney that he had expected to receive support, and that he applied to the full court for the purpose of obtaining that support. It is also evident that that was done by persons in the Government, although not by Sir Bartle Frere, and the fault has arisen from making communication to the Judge officially, instead of privately. Had that native gentleman subjected himself to the remarks contained in the letter to the Government, the course to have been pursued ought to have been for Sir Bartle Frere to have requested him to call upon him, and then in a private interview whatever objection might have been taken to his conduct could have been stated. No doubt if that course had been taken it would have avoided any future public scandal. I feel convinced from what has fallen from the noble Earl the Secretary of State, that both he and his predecessor, although they might, perhaps, have abstained from officially noticing that matter, may, without in the least degree humiliating the Government of Bombay, take occasion to suggest to that Government that on the return of Mr. Manockjee Cursetjee to India their Government shall take an opportunity of placing him in some other position which he will be enabled to fill with equal respect, and equal advantages to this, of which he has now been deprived. That is the course which I think the Government ought to pursue. Certainly, I think it was the duty of those who are responsible at home, while avoiding any public act which would in any way humiliate the Government of India, to endeavour by their parental and confidential advice to prevent that Government on any future occasion from resorting to any similar course, and suggesting to it the propriety of repairing, as far as can be done, the injury which has been inflicted on a respectable gentleman.
  LORD CHELMSFORD: In consequence of what has fallen from the noble Earl opposite I shall withdraw my Motion.
  Motion (by Leave of the House) withdrawn.

HOP TRADE BILL—(No. 123.)
(The Lord Harris.)
HOP TRADE BILL—(No. 123.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD HARRIS, in moving that the Bill be now read a second time, explained that the object of the measure was to check certain frauds which existed to a very considerable extent in the traffic in hops. These frauds consisted in the substitution of hops of inferior quality for hops of a superior quality, whereby the brewer and the purchaser was imposed upon; and this practice was greatly facilitated by the manner in which hops were packed, which rendered it difficult to test the quality of hops in the pocket. The method for checking this fraud proposed in the Bill was not at all novel. The trade in hops had formed the subject of legislation since 1710; but in the last century the legislation was principally directed for the purposes of the Excise. In 1710 the Excise officers were obliged to put the year and the weight of the hops upon each bag or pocket. In 1800 the grower was called upon to place his name outside the bag or pocket, in order that the buyer might know whence the hops came. In 1810 further alterations were made, imposing greater obligations upon the grower; and in 1814 regulations were made fixing the size of the letters of the name and place of abode, but the weight and the year were still directed to be affixed by the Excise. In 1862, when the hop duty was done away with, there was no provision made for the year or weight being marked upon the pocket, although the trade attached great importance to this information, because hops were very much diminished in value after twelve months, and the weight enabled the dealers to detect any tricks that might be attempted with the pocket. Under the Bill, the obligation was thrown upon the owner or grower to affix his name, the parish where the hops were grown, and the county in which the parish was situated; also the number of the pockets he turned out, the weight of each pocket, and the year in which they were grown. A penalty was imposed for false marks, for packing the pockets with different qualities of hops, and for putting foreign hops in British hags. The provisions of the Bill were, in fact, very similar to those of the Merchandise Marks Act. The obligations thus im-
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  posed were to be enforced by penalties. Hops were a delicate production, and could not be exposed like other articles to the outward air, and the only real test was after the hops were in the copper and became beer. Every interest—the grower's, the factor's, and the brewer's—agreed that this was a valuable measure.
  Moved, "That the Bill be now read 2ª,"—(Lord Harris.)
  THE EARL OF ROMNEYwas of opinion that it would have been better if, instead of requiring marks to be put upon the bags, the hop trade had been thrown completely open, and treated in the same way as tea, sugar, corn, or any other article. No real protection was given by requiring the weight to be marked on the pocket within a month, for if carried by water they increased in weight, while if kept in a dry place they became lighter. The mark afforded no real protection as to the quality of the hop, for in one parish of 6,000 acres two qualities might be produced—one very good, and the other very bad; and persons, instead of being secured, might be deceived by the name upon the pocket. So far from admitting that the quality of hops could not be tested by examination, he believed that persons who understood the trade could distinguish, blindfold, between first and second qualities. The Bill would lead the dealers to trust in a system of marks, and it would be wiser to get rid of that system altogether. He hoped that the noble Lord would consider, before they went into Committee, whether he would insist on that provision which required that the weight should be affixed on the bag within a month.
  Motion agreed to; Bill read 2ª accordingly, and committed to a Committee of the Whole House on Thursday next.
  House adjourned at a quarter before Seven o'clock, till To-morrow, half past Ten o'clock.