Lords Sitting of 11 July 1878

MINUTES.
PUBLIC BILLS—First Reading—County of Hertford* (154); Freshwater Fish Protection* (155); Tenant Right (Ireland)* (156); Roads and Bridges (Scotland)* (157).
Second Reading—Foreign Jurisdiction* (147); Epping Forest (144).
Report—Public Health (Ireland)* (133).
Third Reading—Statute Law Revision* (114); Supreme Court of Judicature Act (Ireland), 1877, Amendment* (139), and passed.

THE EASTERN QUESTION—THE CON GRESS AT BERLIN.—QUESTION.
EARL GRANVILLE: I wish to ask the noble Duke the Lord President of the Council, a Question, of which I have given him private Notice. It is, Whether he can give the House any information when the Plenipotentiaries will arrive in London? With regard to the Papers in Congress, I presume they will be laid on the Table as soon as possible.
THE DUKE of RICHMOND AND GORDON: We have had no information as to the time when the British Plenipotentiaries will arrive in London; nor, indeed, when they will leave Berlin. With regard to the Papers, there is every reason to believe that the Congress will terminate; its labours in the course of a few days; but, until the close of the sitting, it will be impossible to lay the Papers before the House. Certainly, no time will be lost in presenting the Papers, when it can be done so conveniently.

EPPING FOREST BILL—(No. 144.)
(The Lord President.)

SECOND READING.
Order of the Day for the Second Reading, read.
THE DUKE OF RICHMOND AND GORDON,in moving that the Bill be now read the second time, said, it proposed the disafforestation, the preservation, and the management of certain parts of the Forest, as a place for the recreation and enjoyment of the public, and for other purposes. This question of the inclosure of Epping Forest had
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been before the public now for many years. It had formed the topic of debate in the other House of Parliament, and it had also been discussed—at least, some portions of it—in the Law Courts. In former days, it was considered that the inclosing of commons and open spaces was an advantage to the community at large. It was thought that it gave an increased area for labour—it was thought that by increasing those spaces it would enlarge the acreage on which food was produced for the people; but, generally speaking, it was advocated upon the ground that the more the land was inclosed the better it would be for the public in general. In 1853, the Law Officers of the Crown advised the sale of the Forest, and that the Crown should give up the rights which it possessed over something like half the forest land, amounting to about 4,000 acres. It was thought right, by these proposals, that the lords of the manor should be able to in close the land which they purchased; and having purchased the land, they considered they had bought all the rights, the common law rights, which belonged to that part of the Forest they had bought—and, that, therefore, they could not be disturbed in the possession of that which they had thus acquired. A considerable number of inclosures, therefore, were made. He found that some time after this occurred, public attention was called to the inclosures in various parts of the country, amongst others in Epping Forest, and in the year 1865, public attention having been so called to it, a Society, was formed of Members of Parliament and others, who were interested in the matter. They formed themselves into a Society, and they called themselves the "Commons' Preservation Society." The proceedings under the inclosure of Epping Forest were brought forward at a later period by Mr. Fawcett; and in February, 1870, he carried an Address to the Crown, praying—
"That Her Majesty will take such measures as in Her judgment she may deem most expedient, in order that Epping Forest may be preserved as an open space for the recreation and enjoyment of the public."
The matter, however, was not taken up at the moment. The Government of that day took some steps, it was true, towards carrying out the views which had been expressed in that Address, passed at the

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instance of Mr. Fawcett; but they were taken in a manner which was not considered satisfactory by those who were interested in the question; and, accordingly, he found that in the following year, Mr. Cowper-Temple moved the House of Commons, to the effect that—
"It is expedient that measures be adopted, in accordance with the humble Address presented to Her Majesty in February 1870, for preserving as an open space accessible to Her Majesty's subjects, for purposes of health and recreation, those parts of Epping Forest which have not been in closed with the assent of the Crown or by legal authority."
Mr. Cowper-Temple, not being satisfied with the steps taken by Mr. Ayrton, when First Commissioner of Works, carried his Motion in the House of Commons, contrary to the opinion and the wish of the Government, by a considerable majority. The Corporation of the City of London, which had been traditionally associated with the Forest, then took action in the interests of the City of London, inasmuch as the Metropolitan Board of Works declined to take any action in the matter, considering that they had no funds available for such a purpose. The Corporation came forward, and the proceedings which were taken by them under the In closure Acts were recommended by the Law Officers of the Crown. A bill was filed in Chancery by them in 1871, raising the whole question. The right which was asserted in that suit was that the Commissioners of Sewers in the City of London, suing for the Corporation, were owners and occupiers of 200 acres of land in the Forest, and were entitled, in respect of that, to the right of common pasture over all the waste lands of the Forest, and that any inclosures made within 20 years of the filing of the suit were not lawful as against the plaintiffs and other owners and occupiers of land within the Forest. The case was argued at some length, and finally the judgment of the Master of the Rolls was given, after a hearing which extended over 22 or 23 days. The judgment was in favour of the plaintiffs, his Lordship declaring that they had the rights which they claimed; and, practically, he ordered that all the illegal inclosures which had been made within the past 20 years should be laid open. The effect of the decision was that the inclosures of the lords of the manor and
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the two owners who were proceeded against in the suit were thrown open. There were certain portions of the Forest which had been bought and inclosed under an arrangement with persons who were assumed to have a right to confer a title to them. Upon those portions houses had been built, and pleasure-grounds laid out and inclosed. There were other portions of the ground upon which there were no buildings. Now a proposal was made that those persons who had built houses should be allowed to remain in their possession, the houses being suffered to remain, where they were, upon a certain payment being made. It was felt that those who had thus purchased and inclosed portions of the Forest, not knowing that in inclosing they were acting improperly, should be dealt with in a manner different from that in which those who had made inclosures under other circumstances should be treated. The Master of the Rolls declared—and those who took the proceedings in his Court admitted the point—that a grievance would naturally be felt by those persons who had bought land in the Forest under the belief that they were buying all the common rights in the land, and not knowing at all that the rights of the common extended over the whole of the Forest, whether the part the Crown was possessed of or any other part. The Master of the Rolls recommended that the Commissioners, who had previously been appointed by Her Majesty in answer to an Address, should form a scheme dealing with the question regarding persons who had acquired land in the Forest, as they thought equitable. The matter had been under consideration in various ways for some time; but nothing had been done up till this year—at least, no real progress had been made—and it had not been possible to bring the matter to a conclusion till the present Session. It had been decided that the Corporation of the City of London should be the Conservators of the Forest, and that some quit rents should be paid by the grantees of the lands to which he had alluded. That was the case the Government had to consider at the commencement of the Session. What should they advise in the matter, and was it one they should at once take up? It appeared that if nothing were done, the old state of

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things would re-commence, the restraining Act passed in 1873 being about to expire, and everyone who took an interest in the matter would have deeply deplored the recurrence of the disputes and litigation which had previously gone on to such a considerable extent. Looking at the case with all its surroundings, the Government determined to go into the matter. They had accordingly introduced a Bill to which he should ask their Lordships to give a second reading; and they had, they hoped, brought about a satisfactory compromise between the different parties affected. An Arbitrator was appointed under the Bill—a gentleman of very considerable eminence; and who would, no doubt, have great weight with those upon whose claims he would be called upon to adjudicate—Sir Arthur Hobhouse. The object of the Bill, then, "was two-fold. The Corporation of the City of London, which had come forward so magnificently to take charge of the Forest on behalf of the public, feeling that they were intimately connected with that part of the outskirts of London which included it, and that they ought to look after the amusements of the people, especially of those who lived in the East End of London, would have the control of the Forest. He was glad the requirements of so large a body of the people were thus to be considered, and that they would have much-needed facilities for obtaining recreation and fresh air, and the other advantages to be derived from open spaces in a great Metropolis like this. The second portion of the Bill was to quiet the titles of those innocent purchasers who had acquired land under professional advice, believing that they were acquiring land with a good title, and by no means imagining that the rights of commoners in distant parts of the Forest would affect their property. Such was the character of the Bill, and it would be seen from the remarks he had addressed to them that it was one of compromise. It had been very carefully considered. In the other House it had been discussed and considered at length. Great pains had been taken in order to prevent anything like injustice being done to any of the persons affected by the measure. He hoped their Lordships would give the Bill a second reading, and that by means of it they would be able to put an end to a condition of
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things of which he might say that it was not creditable to our Legislature, and enable persons living in the East End of London to benefit by having within, their reach a spacious and beautiful open space.
Moved, "That the Bill be now read 2a."—(The Lord President.)
Motion agreed to; Bill read 2a accordingly.

INDIA—THE JAGHIRE OF BUNGANA PALLY.

  MOTION FOR AN ADDRESS.
  LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY rose, pursuant to Notice, to call the attention of the House to the case of the succession to the Jaghire of Bungana Pally, and to move for Papers. He said: My Lords, the case which I propose to submit to your Lordships is one which seems to me to have strong claims on your attention, for it is the history, as I venture to think, of an act of great injustice committed by our Government on a Prince or Chief in India; and I must add that it involves an infraction of a solemn engagement entered into by our Government towards all those Princes and Chiefs. Your Lordships are aware that in India the Mussulman law regulates for the Mussulmans the succession to property; and that it has been always regarded as regulating the succession to Principalities seems to be beyond all doubt. In practice, this has been so usually, if not invariably; but if any doubt could exist that it is the rule which our Government has adopted, it would be set aside by Lord Canning's celebrated Charter, or Sunnud, as it is called, of March 11, 1862, which states—
  "Her Majesty being desirous that the Government of the several Princes and Chiefs who now govern their own territories should be perpetuated, and the representation and dignity of their Houses should be continued, in fulfilment of this desire the Sunnud is given to you, to convey to you the assurance that on failure of natural heirs, the British Government will permit and confirm any succession to your State that may be legitimate according to Mohammedan law. Be assured that nothing shall disturb the engagements thus made to you so long as your House is loyal to the Crown and faithful to the conditions of the Treaties, grants, and engagements which record its obligations to the British Government.
  (Signed) "CANNING."

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  It is plain that when this promise was made, it was already well understood that as long as there were natural heirs, the same law should apply equally to the rule of succession. To suppose the contrary would be to suppose that the Governor General of India was promising to be bound by their law in the rare cases where they had no family to be concerned in his decision, and yet reserved to himself the right to disregard it and to set it aside, to the prejudice of their children, and to dispose of their inheritance to a stranger. Such a supposition is so preposterous that it is plain that Lord Canning, in his Sunnud, recognized the binding effect of Mussulman law in all cases of succession to Principalities, as well where there were, as where there were not, natural heirs. I now proceed to call your Lordships' attention to the manner in which a case which fell under that law was dealt with by our authorities. The Jaghire of Bungana Pally, according to a Madras Government document, has an area of 500 square miles, a population of 35,200, and a revenue of 166,175 rupees. The Jaghirdar cannot sentence capitally and execute persons capitally convicted without reference to Government. The Predecessors of the Jaghirdars of Bungana Pally held it under the Nizam "from generation to generation." In 1800, in a cession of territory by the Nizam to the British Government, Bungana Pally was specially excepted. In 1825, Hussein Aly Khan placed himself and his State under British protection in consequence of difficulties with his creditors. In 1848, order having been restored under British administration, Hussein Aly was re-instated in the government of Bungana Pally by Sir Henry Pottinger, Governor of Madras. A draft of a Sunnud or deed of investiture was communicated to Hussein Aly Khan, conferring the Jaghire on him and his heirs. As the Madras Government had to repeal certain Acts concerning the administration of Bungana Pally, the Sunnud of investiture could not be completed that year—1848—and an order of Government was issued for reinstating Hussein Aly Khan, and the Governor General directed that the Madras Government should make the necessary arrangements for the restoration of the Jaghire, "so that no interests suffer thereby." Hussein Aly Khan died in
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  December, 1848, before his Sunnud was completed, and it was not completed subsequently and antedated, as it ought to have been, to carry out the Governor General's direction that no interests should suffer; and this was the cause subsequently of injury to the interests of Husseiny Begum. In 1848, Gholam Aly Khan succeeded to Hussein Aly Khan as Ruler of Bungana Pally, in right of his wife, Husseiny Begum, the only child of Hussein Aly Khan, and a fresh Charter of investiture was given to Gholam Aly by the British Government. Husseiny Begum's children having died in infancy, Gholam Aly married other wives, and had three daughters. In 1862, Gholam Aly Khan received Lord Canning's Sunnud, or Charter, of March 11. This is of importance, as it shows that Lord Canning's Government considered that his Charter applied to the Ruler of Bungana Pally. In 1863, Gholam Aly Khan made the acquaintance of Nazim ud Dowleh, Nawab of Masulipatam, and gave him his eldest daughter, Shahar Banou Begum, in marriage, and made a settlement on him with the concurrence of his wife, Husseiny Begum, to the effect that if he, Gholam Aly, had no son, his son-in-law, Nazim ud Dowleh, should be to him as a son and his heir, and should succeed him in his State, and in this deed he precluded himself solemnly from any other arrangement. Gholam Aly Khan communicated the marriage of his eldest daughter and its attendant arrangements to Mr. Minchin, Collector of Kurnool, which were approved by him. Some years later, Assad Aly Khan introduced to the notice of Gholam Aly Khan a dancing woman of bad character, and through her influence Gholam Aly Khan was induced to give a second daughter of his in marriage to Futteh Aly, the son of Assad Aly Khan, and also to execute a deed of settlement naming Futteh Aly as his successor to the State, in contravention of the deed already executed by him. This last deed was kept a profound secret from Husseiny Begum and the rest of the family till after his death on October 7, 1868. Immediately after that, Assad Aly Khan and his son, Futteh Aly Khan, went to the Collector of Kurnool, Mr. Chase, and induced him to recommend Futteh Aly Khan to the Madras Government as successor. Finding that

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  the Collector of Kurnool was recommending Futteh Aly for the succession, Husseiny Begum, with the consent of the Nawab of Masulipatam, the eldest son-in-law of her husband, put in her own claim to the succession on the 26th October, 1868, on the ground of being the only child of Hussein Aly Khan, predecessor of Gholam Aly Khan. On the 14th November, 1868, the Nawab of Masulipatam addressed the Governor of Madras as to his claim, subordinating it to that of Husseiny Begum. On the 4th December, 1868, Shahar Banou Begum, wife of the Nawab of Masulipatam, again addressed the Governor of Madras in the same sense as her husband's Memorial, and strengthening her claim by reference to her infant son, born March 22, 1868. On the 6th February, 1869, the Madras Government decided to give the succession to Futteh Aly Khan, the nephew, who was not an heir, to the exclusion of Shahar Banou Begum and her husband, the daughter and son-in-law of the deceased Ruler, and of his grandson, and to the exclusion of Husseiny Begum, the heir of Hussein Aly, the predecessor of Gholam Aly. In fact, the Madras Government Order is written as though in ignorance of the existence of the grandson of Gholam Aly Khan, and Sir John Karslake, in his opinion, expressed his surprise at this omission. This decision of the Madras Government was, virtually, that of the Governor, Lord Napier; for one of the two other Members of the Council voted againt him in favour of Husseiny Begum, and the other, though voting with the Governor, delivered an opinion in favour of Husseiny Begum. The Governor of Madras did a wrong, because, disregarding Lord Canning's Charter, and forgetful of the custom and traditions of the Indian Government, according to both of which he should have been guided by Mussulman law, he chose to be guided not by English law even, but by Scotch law, and Scotch preference for male collaterals to direct females. That this was the opinion of the Governor of Madras is plain from the words of his Minute dated November 25, 1868—
  "It may be doubted whether Imdad Husseiny Begum ever could have been regarded under the order of Government or under the intended Sunnud as the heir of her father for succession to a Jaghire as long as male collaterals, in a
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  reasonable degree of consanguinity, were available."
  It may be asked, how the Governor of Madras became entitled to set aside rights of Indian Princes for the transmission of their States, and the engagement of the British Government issued by Lord Canning? The Minute of the Governor of Madras contains other most extraordinary statements. Referring to the claim of Nazim ud Dowleh, it says—
  "His only connection with the family of Jaghirdar is by marriage with a daughter of the then existing Jaghirdar of inferior birth, to the exclusion of the brother of the Jaghirdar, his nephew, and other male heirs. I doubt whether a Nikah daughter could ever be an heir in the sense of the Sunnud."
  Now, where did the Governor of Madras find any warrant for speaking of the inferior birth of the offspring of a Nikah marriage, or marriage by contract before the Kady and the witnesses. To use such language is as reasonable, or as unreasonable, as to speak of the inferior birth of the children of a marriage by banns in a parish church. The Governor of Madras introduced into his Minute the term shaadi wife, a term confined to India, of Hindoo origin, designating the first wife, on account of the rejoicings and feasting at the first marriage which cause so much extravagance and indebtedness to Hindoos and Mussulmans. My noble Friend the late Governor of Madras was in the British Embassy at Constantinople both before and after my time; it was part of his official duty there to acquaint himself with the laws of the country, and he ought to have known that such a term, and any precedence or superiority that may be supposed to be derived from it, is utterly repugnant to Mussulman law, which enjoins absolute equality amongst wives. To show this equality, Turkish lawyers say that if a man should lose two wives in the same day, he must remove one of the door-posts of his house, and knock down part of the wall to allow of the two coffins coming out abreast, and without any precedence. The Turkish legists usually take an extreme case; but there is another precedent, which must be more familiar to my noble Friend, and it is that of the twelve sons of Jacob—six were the sons of his first wife, two of his second wife, and four of his handmaids, or as the

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  noble Earl sitting above the Gangway (the Earl of Shaftesbury) would prefer to call them, of his slaves. Yet they were all equal. If my noble Friend says that was under the Old Dispensation, I say no; that it was confirmed by the New Testament, for we are there told that the Apostles were equal, and also that they are to sit on twelve thrones judging the twelve tribes of Israel; and if the late Governor of Madras should adhere to his opinion as to the inferior birth of some of the sons of Jacob, he would have to decide which of the Apostles he would relegate to the thrones of these inferior tribes. This equality of wives is as much the rule in Persia among the Imamy Mussulmans as amongst the Sunny Mussulmans. When the Governor of Madras says that a daughter could not be an heir, he disregards the fact that this State of Bungana Pally had twice before passed through females, and he disregards the precedents of the Begums of Bhopal, and of many other female Sovereigns in India; and your Lordships will remember that the Begum of Bhopal is said to have been the first of the Indian Princes to offer her troops at the present time to the Queen. The Minute of Mr. Phillips, November 21, 1868, is in favour of Husseiny Begum, the widow of the deceased Jaghirdar, and states her to be a person of much energy of character, and all along connected with her husband in conducting the affairs of the Jaghire. Mr. Arbuthnot's Minute, dated December 7, 1868, states that he has felt considerable difficulty in forming an opinion. He agrees with the Governor in favour of the nephew, though he states the precedent of the Begum of Bhopal in favour of Husseiny Begum, whom he would have been disposed to recommend, the succession at her death to be determined hereafter. There is no trace whatever in the proceedings of the Madras Government, or in the other Papers that I have seen, of anything that could be called a political motive for the preference of Futteh Aly Khan to the rightful heirs. There is not the slightest ground for accusing the rightful heirs of want of loyalty to the Crown, the reserve contained in Lord Canning's Charter. Futteh Aly Khan was, on the contrary, the least qualified, being barely 20 years of age when vested with
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  the Jaghire by the Madras Government; and he was under the influence of his father, whose not very reputable conduct had brought disunion into the family. There is no trace, either, in the Papers, of the Governor of Madras having taken any legal opinion before coming to his decision. The case then came before the Secretary of State for India, and the Duke of Argyll was petitioned either to reverse the decision of the Governor of Madras or to allow the case to go before the Privy Council. The Duke of Argyll took no notice of the prayer of the Petition that referred to the Privy Council, but disposed of the other prayer shortly by replying that he concurred with the Governor of Madras that arguments from Mohammedan law did not apply, when, as in this case, there was a regality. Now, where did the Duke of Argyll discover that doctrine? Certainly, not in the practice and traditions of the Company's government of India; still less under the rule established by the Queen's Proclamation of 1858, and Lord Canning's Charter sanctioned by himself as Secretary of State at the time it was issued. Could he have forgotten that Charter? I will ask leave to read to your Lordships the commentary of the noble Duke on Lord Canning's Sunnud, or Charter, which I have taken from a printed letter to the noble Duke from Mr. Emerson Dawson, dated June, 1871. He writes—
  "Your Grace wrote some few years ago 'no general principle had ever been laid down defining the circumstances' under which a doubt as to the right of succession of a Native Chief would be admitted to exist. 'Each case as it arose had been dealt with on its separate merits, and the highest authorities were constantly divided as to the abstract principle of Hindoo law and of paramount rights which should be brought to bear upon each decision.'…… 'Lord Canning accordingly suggested that the time had come when we might adopt and announce a rule in regard to succession to Native States more distinct than could be found either in our own previous practice or in that of former paramount Powers of India.' The above quoted observations, it must be admitted, express with perfect accuracy the views of Lord Canning, and describe with clearness the motives which led him to embody in two formal Sunnuds—one for the Hindoo and one for the Mohammedan Chiefs—that 'general principle,' that 'more distinct' rule in regard to the succession to Native States, which would serve to set at rest the divided opinions of the highest authorities."
  I entirely concur with the writer I have just quoted, and think it would be difficult

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  to commentate Lord Canning's Sunnuds in a manner more satisfactory to the Chiefs of India than the language of the noble Duke. But this language, together with the words of Lord Canning's Sunnud, makes it inexplicable that the noble Duke should have replied to the petitioner's Memorial on the 11th September, 1869, that—
  "The arguments derived from Mohammedan law are inapplicable when, as in the case before me, the Jaghire goes together with a regality."
  Now, the noble Duke (the Duke of Argyll) not only had before him the plain words of Lord Canning's Sunnud to guide him to an opinion contrary to the one he laid down to the petitioners; but he was also cognizant of a despatch of Lord Canning's, which shows that Lord Canning intended his Sunnud and its guarantees of adherence to Mussulman law to apply to cases where a Jaghire goes with a regality. For, in the noble Duke's article in The Edinburgh Review, p. 481, he gives the following extract from a despatch of Lord Canning:—
  "Such an act of grace—and, in my humble opinion, of sound policy—would be an assurance to every Chief above the rank of Jaghirdar, who now governs his own territory, no matter how small it may be, or where it may be situated, or whence his authority over it may in the first instance have been derived, that the paramount Power desires to see his government perpetuated."
  The mention in this despatch of Chiefs above the rank of Jaghirdar—words not contained in the Sunnud—shows that it was intended to apply to Chiefs possessing a "regality," and not to inferior Jaghires possessing no regality or jurisdiction, and which would only be of the nature of property or of a rent charge. As Lord Canning's Charter applies to the extreme case of failure of natural heirs, which in Lord Dalhousie's time was thought to justify the resumption of a State by the British Government, and as the greater contains the less, so it clearly covers those cases where there are natural heirs. I will now read to your Lordships the opinions on this case of Sir John Karslake and Mr. Benjamin, and of the Hon. J. Bruce Norton and the Hon. J. D. Mayne, both of whom have filled the post of Advocate General of the Madras Government. Sir John Karslake and Mr. Benjamin state that they are of opinion—
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  "1. That the Sunnud of Lord Canning of the 11th March, 1862, is applicable to a case where the Jaghire goes together with a regality. It appears to us that the language of the Sunnud was carefully selected for the very purpose of excluding a doubt on this point. It does not profess to deal with the succession to a Jaghire as a question of property, but as one of government. It points altogether to political considerations. It announces Her Majesty's desire that the 'governments' of the several persons who now govern their own territories should be perpetuated, and the representation and dignity of the 'houses' continued, and it contains a solemn engagement of the Crown perpetual 'as long as your House is loyal to the Crown,' &c. We find not a word in the Sunnud to limit its operation and effect to the estate and property of the dependent Prince, nor even to show that it applies to estate and property. It is on its face in express words a provision for the succession to 'your State,' and we, therefore, answer to the first question, that in our opinion it was not correctly held by the Secretary of State for India that arguments derived from Mohammedan law are inapplicable when the Jaghire goes together with a regality. 2. We, therefore, answer to the second question that the succession of Fathay Aly Khan, the nephew of the deceased Gholam Aly Khan, is not a succession legitimate according to Mohammedan law, and is in contravention of Lord Canning's Sunnud, inasmuch as there was no failure of direct lineal descendants, who, both by the terms of the Suunud, and according to Mohammedan law, have a prior right to the succession. The questions involved in the case are so much matters of law, that we quite concur in the suggestion that the claimants should endeavour, if possible, to have it referred for decision to the Judicial Committee of the Privy Council, under the 4th section of the 3rd & 4th Will. IV., cap. 41. As this is said to be the first case which has arisen under the Sunnud of Lord Canning, and will form an authoritative precept for future cases, it seems very desirable that the decision should be entrusted to the highest Court of Appeal for the Dependencies of the Crown.—Temple, January 24, 1871."
  Mr. Norton's opinion, dated March 28, 1872, states—
  "I hold, then, that under the Sunnud, the Government cannot interfere; it has no locus standi for its action. The case seems to me peculiarly fitted for reference to the Privy Council. It is a pure question of law, and no State policy is involved in its decision. It stands free from the blot in the Tonk case, that it was a criminal matter; and the importance of determining whether the Sunnud of Lord Canning is to be mere waste paper or not, certainly renders the judgment of the Judicial Committee of the Privy Council most desirable."
  The opinion of Mr. Mayne, then late acting Advocate General, and subsequently Advocate General of the Madras Government, dated Madras, February 23, 1869, which accompanied the Petition of Husseiny Begum to the noble Duke the Secretary of State, showed

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  that the nephew, being neither a "natural heir" nor a successor "legitimate according to Mohammedan law," suffered under a double exclusion from the inheritance—
  "In favour of the grandson, who enjoyed both these qualifications, and that the nephew was clearly excluded from the succession by the existence of children and their descendants."
  Besides these opinions of English lawyers, the claimants have to support them the opinions of several of the most distinguished legists of India, of the Imamy or Shiah rite residing at Kerbela, in Turkish Arabia, to the effect that the daughter and grandchild of the deceased must succeed him to his whole estate, to the exclusion of his nephew, a distant collateral. These opinions were registered in the British Consulate at Bagdad. The question arises, after hearing these legal opinions, why the noble Duke decided to uphold the decision of the Madras Government, which was not unanimous, in preference to carrying out the intentions of the Queen's Proclamation, and the engagements of Lord Canning's Sunnud, and why he made the Act of William IV. a dead letter, and closed the Judicial Committee of the Privy Council to a question of law? If it be said that the question is not one of private right but of State, and, therefore, that the Executive cannot consent to refer such a question to a Court of Law, it should suffice to answer that the Privy Council is not a mere Court of Law; the Judicial Committee of it may be; but the Privy Council advises the Queen on all questions, and it might find it convenient to refer such a question as this to its Judicial Committee. But it is begging the question to say that the matter is political. It resembles exactly the question of title to a manor where, besides property, the lord had in old times jurisdiction of a judicial kind, both civil and criminal. It is also said that Lord Canning's Sunnud was merely a revulsion of feeling and a retractation of policy, after the experience of the bad effects of the policy of annexation of Lord Dalhousie; and that it merely meant that the British Government would not annex or resume any States, or become itself a gainer by the death of a Ruler or Chief. The commentary of the noble Duke (the Duke of Argyll) shows that in his mind it meant more
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  than that, and that it was intended to give security to the Rulers and Chiefs of India that their succession would not be interfered with. But Lord Canning's Sunnud was much more than that—it is the Charter of the Princes of India and the basis and foundation of the Empire of India. Without it, and without the observance of it, the word paramount Power is a word devoid of sense, and England could only be the strongest or supreme Power in India. No Government likes to repose on force only. After the Norman Conquest of England, William did not rely upon his conquest by force of arms alone, but claimed to hold England by his rights derived from Edward the Confessor and the broken oath of Harold. Up to the time of the Mutiny and the abolition of the East Indian Company, British rule in India was based upon its being the vakil or deputy of the Great Mogul, through which it could claim to be the paramount Power. After the dynasty of the Great Mogul had been swept away, and the last of the dynasty had died in captivity, that legal basis of the British rule was swept away at the same time, and it became necessary to find another; and such a basis for a paramount Power and for an Empire of India was supplied by Lord Canning's Sunnud supplementing the Queen's Proclamation, which, being accepted by the Princes and Chiefs of India, became a contract between them and the Sovereign of England, establishing Her Majesty as the paramount Power in India. It follows, therefore, that any attempt to make Lord Canning's Sunnud of no effect, or to detract from it, would be to undermine the basis of the Empire of India. So that the more faithfully the Government observes and respects Lord Canning's Sunnud, the more will it strengthen itself in the minds and affections of the Rulers and Chiefs of India; and it is impossible to fail to observe it in the case of a small State, such as the one in question, without causing a feeling of insecurity and distress in the minds of all the other Rulers. In July of last year, when I intended to have brought this case before the House, The Contemporary Review of that month contained the following passage:—
  ''There is at least one doctrine of International morality which really is accepted and universally acknowledged to be binding—and

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  that is the obligation of abiding by the faith of Treaties."
  These words were signed by the Duke of Argyll, and he will not maintain that an engagement spontaneously offered by the British Government is not as binding as a bilateral Treaty. In all that I have now put forward, I am only asking the noble Duke (the Duke of Argyll) to act in consistency with his published commentary on Lord Canning's Sunnud, and to follow the precedent which he himself set in a case which is similar to this of Bungana Pally, only that it concerned a Hindoo Chief. What the noble Duke did in that case is well described by the author of Blue Pamphlet—
  "The re-opening of the case of the Rajah of Kapurtala's father's will, after a lapse of 13 years, and the setting aside of a decision of Lord Canning, given in open durbar without the orders of the Home Government, raised a feeling of such extreme consternation in the minds of all the Chiefs of the Punjaub and Oude that it would be impossible to magnify it. It would almost seem as if Sir John Lawrence conceived that he had a special mission from the Crown to uproot the very foundations of the new Empire laid by the great and good Lord Canning, with such determination did his Government try to run counter to this policy. But, in this instance, Great Britain was fortunate in having a statesman at the head of the India Office who could sacrifice his personal views to the interests of the State, and who preferred to uphold the honour of his Queen and the integrity of her Viceroy's solemn engagements with a distinguished and faithful vassal of the Crown, to obstinately adhering to a policy which Her Majesty's Government had 10 years previously abandoned as unwise and untenable. The Duke of Argyll decided that the orders of Lord Canning were inviolable and must stand; and this decision was most honourable to the Duke of Argyll. His Grace stands in the peculiar position of being the sole English statesman who had publicly expressed his views on the Indian administration of Lords Dalhousie and Canning. These were as strongly in favour of Lord Dalhousie's policy as opposed to that of Lord Canning; and a weaker man and a statesman of less high-principled integrity and honesty, having the whole weight of the Government of India in Council on his side, might have hesitated before he consented to interpose his authority to stop the dismemberment of an ancient Principality and the weakening of that one Native Chief who took the field in person and fought at the head of his troops in our defence in 1857. Not so the Duke of Argyll; he at once made up his mind to sacrifice his own opinions rather than break the pledged faith of the British Government, and he has his reward."
  If the length of time that has elapsed since this claim arose be alleged as a

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  reason for not considering it, I would ask the House to remember that this is not the fault of the Petitioners. A Petition to the other House of Parliament was prepared by the claimant; but it was not presented, owing to the difficulty of getting a hearing and a Member of the other House to present the Petition. These difficulties, and the unfitness of either House for such discussions, are additional proofs in favour of referring such claims to the Privy Council. I will ask leave to read a letter of Mr. Fawcett explaining his reasons for refusing to present the Petition. It does him great honour, and shows setter than any words of my own the difficulties and objections to Indian claimants being driven to seek redress from Parliament.
  "The Lawn, South Lambeth Road,
  "June 11, 1876.
  "I am sorry to say that my husband (Mr. Fawcett, M.P.) feels unable to do anything in the case of the Jaghire of Bungana Pally. He has always been particularly careful not to identify himself with any of the disputed rights or claims by Native Princes of India. They are generally persons of great wealth, and it is almost impossible for a poor man like my husband to take up their case in Parliament without incurring the suspicion of being a paid agent. This is the real reason which makes him avoid all these cases. He wishes to keep himself free to speak in what ho believes to be the interests of the poor or friendless populations of India.
  (Signed) "M. G. FAWCETT."
  Mr. Fawcett need not have felt such a fear in this case, for it appears that the claimant is in a state of poverty. The Duke of Argyll had directed that a suitable provision should be made for the claimants, but it does not appear that this has been done. I am, aware, however, of the greater difficulty caused by time in settling a case of this nature; not that anything like a Statute of Limitation applies, but because when many years have passed after a wrong decision has been taken, it is as difficult for a Government to reverse it as to reverse a confiscation without a fresh injury to third parties. But this year I am in a better position than when I gave Notice last year to bring this matter before the House to ask the Secretary of State for India for redress; for since that time the Nawab of Masulipatam has proposed on behalf of his son, the grandson of Gholam Aly, the late Jag-

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  hirdar, a compromise, or terms of compensation. These terms consist of—1, a promise and assurance from the Government to recognize his son as next successor to the Jaghire of Bungana Pally after the death of Futteh Aly Khan, the present holder of the Jaghire; 2, the assignment and making over now the two villages of Chunchalamala and Nundiwar for the maintenance of his son until he succeeds to the Jaghire; 3, a similar and equivalent assignment for the maintenance of the family of Futteh Aly Khan at his death. I hope that I may have succeeded in convincing your Lordships of what I stated at the outset—that a great injustice had been done to the rightful heirs to the State of Bungana Pally, and that this injustice carries with it evil consequences, extending far beyond the circle of those more immediately injured by it, since it is a breach of the promise contained in Lord Canning's Charter, and it must give a feeling of insecurity to the Princes of India, and diminish that confidence which ought to be felt in the solemn engagements of the British Government. It does not often happen that an injustice can be remedied, for official arguments are many and plausible against rescinding an official decision. But, in this case, in consequence of the compromise that has been offered by the aggrieved parties, the difficulties have been greatly removed, and the usual arguments do not apply, since the Government is not asked to upset what has been done, however erroneously, by its Predecessors, but only to take a new departure when, in the course of nature, an occasion for it will present itself; and I sincerely hope that the Secretary of State will see his way to accepting the compromise which I have laid before him.
  Moved, That an humble Address be presented to Her Majesty for Papers relating to the case of the Succession to the Jaghire of Bungana Pally.—(The Lord Stanley of Alderley).
  VISCOUNT CRANBROOKsaid, if he supposed that what had been done by the Government of Madras, and confirmed by the noble Duke (the Duke of Argyll), was what the noble Lord assumed, a great injustice, then he might be prepared to listen to a compromise, though it would be against all rule to refer the matter to the Judicial Committee of the Privy Council. But, on the
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  contrary, he had come to the conclusion that the decision of the Government of Madras, confirmed as it was by the noble Duke (the Duke of Argyll), was one which ought to be maintained on grounds of policy and reason. He could not conceive anything more detrimental to the interests of India than that persons who thought they had claims in regard to these Principalities should be encouraged to hang about the Houses of Parliament for the purpose of upsetting decisions given long ago, and thereby inevitably putting themselves into a position which could only lead to misery and want. This was really a very simple case. Hussein Ali Khan was Jaghirdar of Bungana Pally, who died in 1848, leaving behind him a daughter. On his death, the Madras Government appointed his nephew, Gholam Ali Khan, to succeed him in the Jaghirdar, and he succeeded without any remonstrance, and remained in possession till his death, in 1868. No doubt, Gholam Ali Khan married Hussein Ali's daughter; but there was nothing whatever in the appointment of the Madras Government in 1848, recognizing her rights, nor was there anything in the Mahomedan law of succession which would give her any. He had looked into the question of Mahomedan succession to Regalities, and he found that there was practically no such thing as a settled law on the subject. Different customs prevailed in different parts; but he was unable to find any instance where the female had succeeded by a law, and in this case there was no attempt to obtain the succession for the female. Gholam Ali Khan remained Jaghirdar till 1868. He had made another marriage which was said to be a nickah or left-handed one; but he need not discuss that question, for the circumstances were not altered by the question of whether or not that was a legitimate marriage. Three daughters were left by this marriage, one of whom was married to a stranger, Nazim ud Dowlegh, Nawab of Masulipatam, who, it was said, he engaged to make his successor. But if he did so, he had no authority, and in order to make the succession valid, it would have been necessary to obtain the consent of the British Government, and that was not even asked for. After this, another of the daughters was married to Futteh

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  Ali Khan, his nephew, and with him Gholam made a similar engagement in reference to the succession of the Jaghire, only with this difference—that he called in the Collector of this district, who witnessed the document, and Futteh was afterwards presented to the Governor of Madras and accepted as his heir, although he might have previously named the Nazim ud Dowlegh. Therefore, Futteh stood in precisely the same position as Gholam had stood in 1848, and, as in the case of Gholam, he had the approval of the Government. Their Lordships had, therefore, a different set of circumstances to what his noble Friend (Lord Stanley of Alderley) had led them to suppose. These were matters of policy as well as usage, and the Government, among other things, had a right to consider who was the person best adapted from the various circumstances to carry on the government of the Principality. So far as he was aware, there had been no complaint of the state of the country. The new Ruler had been well received by the Mahomedans, and the country had prospered under his rule. This was now seven years ago. The decision of the Madras Government came home in 1869, when it was confirmed by the noble Duke (the Duke of Argyll). The circumstances quoted by the noble Lord only showed the desire of the noble Duke (the Duke of Argyll) to do justice in all matters; and the greater stress, therefore, was to be laid on his decision. He did not propose to lay any Papers on the Table, inasmuch as he thought it very undesirable to keep alive this sort of controversy. He went into this matter with a thoroughly unprejudiced mind, and yet he had formed a strong opinion that it was most desirable to maintain what the noble Duke (the Duke of Argyll) had done. The succession in this case was in accordance with Mahomedan usage; and, considering that there had been no complaint on the part of the people, he trusted their Lordships would not think it necessary further to interfere in the matter.
  LORD NAPIER AND ETTRICKsaid, as this was a matter which was connected with the Madras Government—a matter which affected one of their decisions when he had the honour to be connected with it—it might be becoming
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  that he should address a few words to their Lordships in confirmation of what had been said by the Secretary of State for India. Bungana Pally was a small Dependency with an independent Government, which, however, was not transferable without the sanction of the permanent Power in that part of India. When he had the honour of undertaking the Government of Madras, a gentleman named Gholam Ali Khan, who had married a daughter of the previous Ruler, was the Jaghire. The motives which seemed to have actuated the Government in giving him the Jaghirdar seemed to be—first, that he was in close relationship with the previous Jaghire; secondly, that he had married his daughter; and, thirdly, that he was a man eminently to be preferred over other claimants for various reasons, but principally for his irreproachable character. During the time that he was at Madras, Gholam Ali Khan died, and the question of succession became imminent. There were before the Government of Madras three persons who might be supposed to raise some species of legitimate claim. In the first place, there was the widow; and, in the next place, there were the daughters, one of whom was married to a gentleman of distinguished lineage, in an adjacent Province; another was married to a nephew of the deceased; and a third was since dead. The Government of Madras being very anxious to enlighten themselves as to the claims, or pretensions, of the rival candidates, consulted a gentleman who was eminently capable of giving them an opinion on the question, and who was learned in the history, the laws, and the usages of the Mussulmans; and that gentleman submitted an interesting memorandum on the subject. If this had been simply a question as to the devolution of ordinary property, he supposed the Government would have consulted their own Law Officers; but it was not such a question. It was a question of succession which, as the noble Viscount the Secretary of State for India had said, was not governed by any consistent or distinct Mahomedan law. In these circumstances, the Government of Madras selected the gentleman to whom he had referred; and his Report and opinion, combined with the former decision, excluded, in the mind

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  and view of that Government, the widow altogether. The question, then, was whether the husband of the elder daughter, or whether the nephew who had married the second daughter, should be selected? And the Report, to which he had alluded, having been discussed in Council in the most full and conscientious manner, the Government decided, by a majority, that it was most consistent with Mussulman law and usage that the Jaghire should devolve upon the nephew of the last possessor. While this decision was arrived at, there could be no doubt that the case of the widow excited a considerable amount of sympathy in the minds of members of the Council. It was always painful to find a widow dispossessed of the home which she had inhabited for a length of time, and to see another—nearly related, certainly, but still occupying only a collateral position—coming into possession. This was one of those misfortunes, however, which was perfectly familiar in our own country, and which must happen in India, as it did here. He knew that it was always the intention of the Government of Madras to make suitable provision for the widow, and he had every reason to believe that that had been done, although he must confess that his noble Friend had cast some doubt upon the point. If no provision had yet been made, he hoped it would be afforded without delay. But he thought he had said enough to satisfy their Lordships that substantial justice had been done in the case which had been brought under their notice.
  LORD STANLEY OF ALDERLEYsaid, in reply, that he regretted that his noble Friend the Secretary of State (Viscount Cranbrook) did not take the view he (Lord Stanley of Alderley) had hoped for of this case. His noble Friend had been entirely misled as to Nikah marriages, which were the highest forms of marriages by contract, and he would ask him to name the authority he had referred to, or if he would not do that, to guard against such an adviser, or else he would lead the India Office to a catastrophe. Next Session, he (Lord Stanley of Alderley) would submit to their Lordships a Resolution to the effect that doubtful cases of succession, involving no preponderating political considerations or criminal
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  elements, ought to be submitted to the Privy Council.
  Motion (by leave of the House) withdrawn.

ISLAND OF CYPRUS—SLAVERY.

  QUESTION. OBSERVATIONS.
  THE EARL OF SHAFTESBURY: My Lords, I rise to ask the noble Duke the Lord President of the Council, Whether it is the intention of Her Majesty's Government, on assuming the occupation and administration of Cyprus, to maintain or suppress, as has been done in Her Majesty's Dominions in India, the system of slavery now existing in the Island? The Question is not, I think, inappropriate, for it refers to the subject of slavery, in which the people of this country have always taken the deepest interest. I may be told, generally, that the Governor of Cyprus has already been appointed, and that at this moment he is, in all probability, receiving instructions from Her Majesty's Ministers; but that would not, I conceive, be a sufficient answer to the Question. Nor do I think I can be asked to receive, and to be content with, a reply to the effect that the occupation and administration of the Island will be only temporary. That issue will depend upon the policy of Russia. I see by reference to Clause 6 in the "Annex" of the Convention between England and Turkey, that unless Kars and other towns be evacuated by Russia, Cyprus will not be restored to the possession of the Ottoman Porte. It is, therefore, clear that if the Russian Government persist in holding Kars and those other towns in perpetuity, England will hold Cyprus in perpetuity. That being the case, I beg to ask my noble Friend the Question which I have indicated.
  LORD STANLEY OF ALDERLEYsaid, he hoped the Lord President would say that the Question was premature, for we had not yet got Cyprus, and it depended on the Russians whether we had it or not. From the noble Earl's Question, it appeared that he thought slaves were employed to till the fields in Cyprus. This was not the case in Cyprus, nor in any part of the Ottoman Empire, and the family arrangements of the inhabitants ought not to be interfered

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  with. He had the highest respect for the noble Earl, and for the services which he had rendered to the country, and he hoped that the noble Earl would not take anything he said as wanting in respect to him; but he thought that, on philanthropic grounds, the noble Earl should have asked the Government, and he would ask—though, as he had given no Notice of his Question, he did not expect an answer—he would ask Her Majesty's Government not to extend to Cyprus the Contagious Diseases (Women's) Act, with its concomitant establishments?
  THE DUKE OF RICHMOND AND GORDON: I can have no possible objection to the course which the noble Earl (the Earl of Shaftesbury) has followed in putting a Question to Her Majesty's Government on this subject, considering the great interest which he has always taken in all matters connected with slavery. In reply to the noble Earl, I have to state that Sir Garnet Wolesley leaves this country tomorrow for Cyprus; and when he arrives there, it will be his duty to make full inquiry and investigation into all the institutions of the Island and everything connected with them. When that is done, he will make a Report to Her Majesty's Government as to the state of things which he has found in Cyprus; and, having received such a Report from him, Her Majesty's Government will then be in a position to state the course which they intend to take.
  EARL GRANVILLE: May I ask my noble Friend a Question on another point, in regard to which there appears to be some doubt in the public mind? The point is one of importance; and I hope it has been carefully considered by Her Majesty's Government. My Question is—Can the noble Duke inform us whether or not there is any harbour at Cyprus?
  THE EARL OF KIMBERLEY: I presume that before the noble Duke answers that Question it will not be out of Order to allude to the reply which he gave to my noble Friend on my right (the Earl of Shaftesbury). I regard that reply as in the last degree unsatisfactory. No doubt, it is perfectly natural and proper that the Government should suspend a determination as to the particular mode of action which they should follow until they are fully acquainted
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  with the condition of Cyprus; but I cannot conceive why any British Government should hesitate for one moment to state generally that they do not intend to follow or to adopt any step in the direction of slavery in any territory which is to be under their administration. I confess that I heard the statement of the noble Duke the Lord President of the Council with regret; but I hope he will give us some re-assurance on the subject.
  THE DUKE OF RICHMOND AND GORDON: The noble Earl opposite (Earl Granville) has asked me whether there is a harbour at Cyprus? I believe there is no harbour in the large or extended sense of the word; but there are excellent roadsteads. With regard to the question of slavery, I should have thought that the conduct of Her Majesty's Government since they have been in Office—looking to the action which they took with the Sultan of Zanzibar, and to the Convention which was signed in Egypt on this subject—has afforded sufficient indication that they are as much opposed to slavery as the noble Earl, or any other Member of your Lordships' House.
  House adjourned at a quarter before Seven o'clock, till To-morrow, half past Ten o'clock.