Lords Sitting of 9 July 1897

PRIVATE BUSINESS.

  LOCHEARNHEAD, ST. FILLANS, AND COMRIE RAILWAY BILL.
  THE EARL OF MORLEY (CHAIRMAN of COMMITTEES)THE EARL OF MORLEY (CHAIRMAN of COMMITTEES) moved:—
  "That the order made on the 23rd day of March last, 'That no Private Bill brought from the House of Commons shall he read a second time later than the third day on which the House shall sit after the recess at Whitsuntide as extended by the order of the 18th day of June last,' be dispensed with, and that the Bill be read 2a."
  Motion agreed to. Read accordingly a Second time.

INDIAN JUDICATURE.
*LORD STANLEY OF ALDERLEYasked Her Majesty's Government if they would appoint a Mussulman and a Hindu lawyer to act as assessors in Indian cases before the Judicial Committee of the Privy Council, and if they would confer knighthood on the High Court Judges on their appointment, as was the practice with Judges of the Supreme Court of Calcutta? He said that when he brought before the House last year the complaints of both Hindus and Mussulmans with respect to decisions of the Judicial Committee of the Privy Council, the Under Secretary for India had taken no notice of his statements, but had confined himself to a flat contradiction. The noble and learned Lord on the Woolsack had also blamed him for impugning a decision of the Privy Council, and said that his course ought to have been to ask Her Majesty's Government to alter the law as laid down by the Privy Council. But how was the alteration to be asked for unless a case were made out, and that could hardly be done without implying that the Privy Council decision was unsatisfactory.
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Under these circumstances he had written an article in The Asiatic Quarterly Review of January last, advocating the appointment of a Hindu and a Mussulman lawyer to act as assessors in Indian cases; a course for which there were precedents in the Privy Council in ecclesiastical cases, and in the House of Lords in Admiralty cases. He had learned since this article was published that the India Office would reply that there were no persons in India fit to be assessors. Now Mr. Justice Amir Aly was perfectly fit to be an assessor for Mussulman cases, and whenever he has finished his time for being entitled to half his pension as a High Court Judge, he would be ready to come to this country. If he is fit to be a High Court Judge, it cannot be said that he is not fit to be an assessor to the Judicial Committee. With regard to a Hindu assessor, Mr. Bhattacharya, the author of a commentary on Hindu law, is stated to be in other ways, such as knowledge of Sanskrit, perfectly fit to be a Hindu assessor. Other Hindu names had been given him, but as they do not equal Mr. Bhattacharya in merit, it is unnecessary to refer to them. My Hindu correspondent very properly observes that:—
"The difficulty of finding assessors for the Privy Council is, no doubt, great. But if the appointments were to be made, the difficulty will no longer be felt, for persons will qualify themselves. At the present time the number is extremely few. Another difficulty is the unknown conditions of the appointment. Persons may be fit but not willing to cross the seas, or reside in England. The question of remuneration and the position to be assigned to assessors is another great factor. I take it that the assessor must be familiar with the English language, and must have mastery over the Hindu and Mussulman law in the original, not the English Acts, but Arabic and Sanskrit treatises on the subject."
This opinion seems very reasonable, and what the writer says would dispose of the objection, even if well founded, of there being no person fit. I would suggest that, if Her Majesty's Government were willing to entertain the proposal favourably, both the position and remuneration required would be provided for without any trouble by appointing two such assessors to be members of the Council of the Secretary of State for India. As the noble Earl the Under Secretary of State for India

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had not accepted his statements with regard to a Privy Council decision, last year, perhaps he would be pleased to hear a Resolution which had been passed in Bengal:—
That the heartfelt thanks of this association be conveyed to Lord Stanley of Alderley for having, in the House of Lords, given expression to the views and feelings of the Mussulman community in India with regard to the recent decision of the Privy Council on the question of Vakf, which the Mussulmans consider as inconsistent with the provisions of their law and religion, and as tending to disturb many of their long-cherished social, charitable, and religious institutions, and to render insecure the existing titles to large properties throughout India."
He would add that he had asked a legal gentleman to revise an article in The Asiatic Quarterly, so as to avoid, if possible, all expressions displeasing to the noble and learned Lord on the Woolsack. Besides those points in Privy Council decisions, which he mentioned as being unsatisfactory, a competent person in the India Office had told him that the Privy Council Judges could not understand what an impartible estate was. Perhaps there was more. unwillingness than inability. To understand this, it was not necessary to read Mr. Bhattachariya's book; a much more readable description and explanation of its origin is to be found in the "Cité Antique" of M. Fustel de Coutanges, who describes the primitive institutions of the Greeks and the Romans, and shows how they were identical with those of the Hindus, all these laws and institutions having been derived from principles common to those three nations. The Judicial Committee as regards Indian cases requires strengthening by means of the English Judges it receives from India, and the Indian Administration has for many years been endeavouring to diminish the dignity of the Judicature. Dr. Field, an ex-Judge of the High Court of Calcutta, in an article named "Government and the Calcutta. High Court," in the April number of The Asiatic Quarterly Review, dates this policy from 35 years ago. He complains of the withholding the dignity of knighthood from the Judges of the High Court presiding over the administration of justice to a population of seventy millions; whilst the Judges of the old Supreme Court
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were knighted, though the limits of its ordinary jurisdiction extended no further than the town of Calcutta. He points out that a knighthood conferred after some years of service, or upon retirement, suggests considerations inconsistent with a proper conception of judicial independence. Then the precedence of the Calcutta Judges was taken away; Dr. Field asks,—
"on what grounds that did not exist when the High Courts were first established, at which time such a change as part of the general scheme would have been wholly invidious."
The next step in the Policy of lowering the status of the High Court Judges was to reduce their salaries. The position of a Calcutta Judge once worth more than £5,000 a year, is now worth little more than half that sum. The last step recently taken to diminish the worth of these appointments, and further lower the status of the Court, is to extend the period of actual service qualifying for full pension from 11½ to 13½ years. Dr. Field then quotes from an address presented last September to the retiring Chief Justice by representatives of the European and Indian communities:—
"It is with regret that we have noticed that in India, where a proportion of the Judges of the highest courts in the land are drawn from the Bar of England, the emoluments and conditions of service have been so altered as to make it increasingly difficult to obtain for the High Courts the services of men who it is most desirable on all grounds should be attracted to them, while at the same time the inducements to Indian civilians and others, who have sought a career in this country, to aspire to the honour and dignity of a seat on the Bench of the High Courts, have suffered in a manner which we cannot believe to be for the benefit of the country; and while we are fully alive to economy in all Departments of the State, we yet hold that it is a mistaken policy to apply economy to the High Courts, whim it is exercised at the risk of sacrificing their efficiency."
The retiring Chief Justice, whilst agreeing with the views of the address, stated that a very large number of the more experienced of the District Judges retired upon the promulgation of the new rules. The conditions of life in India are improved for the Civil Service by the Hill Stations; but the Judges of the Calcutta Court do not share in these advantages, as they remain in the plains throughout the hot weather. Besides the complaints made by Dr. Field, it may be observed

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that for some time some Lieutenant Governors of Bengal and other Civil servants under them have treated the high Courts and the magistracy with less than fitting respect. Much satisfaction was therefore caused by a report that the late Government thought of sending their Lord Chancellor as Viceroy to India, and it was hoped that this would secure respect for the dignity of the judicial body. With regard to Indians having seats on the Council of the Secretary of State, besides other advantages, it would be useful to the Secretary of State and to others to have responsible councillors to consult. I may give as an instance, more than 20 years ago a C. D. Blue-book was issued, and I was in doubt how to vote should it have come to a vote; and I consulted the late Cardinal Manning. He asked me for the Blue-book, which I gave him, but I failed to obtain an opinion from him. I then consulted the agent of one of the dispossessed Princes of India, and after reflection he said, that as these women were doing wrong, they had no right; and others had no right to complain on their behalf of the regulations the Government might, make with respect to them.
THE LORD CHANCELLOR (Lord HALSBURY)said that although the noble Lord's Motion was in the form of one question it comprehended two different subjects. He only proposed to say something in respect of the first part of the question. The noble Lord expressed a hope that he should have forgotten what he said last year. He was very glad to find that the noble Lord had forgotten what he said—[laughter]—because his objection to the noble Lord then was that he proceeded to discuss at considerable length, and with very scant courtesy towards the learned Judges who had decided it, the question that had been decided by the Judicial Committee of the Privy Council. That night he was bound to admit the noble Lord had entirely avoided any objection of that sort, and, but for his preamble, he should simply have said in reply to him that he was not able to advise Her Majesty's Government to appoint the assessors whom he suggested, even if it were not a sufficient answer to say that they had no power to do it. He did not agree that there had been any real dissatisfaction with the decision to which
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the noble Lord referred. Where there were two sides to a question he presumed the side against whom the decision had been recorded would be dissatisfied with it, and if they were to proceed to alter the law in every case where there would be any dissatisfaction at the decision arrived at there would be a constant oscillation between one law and another. Although there was a. little technicality in it, perhaps their Lordships would allow him to explain what the decision was. The case come before the Judicial Committee of the Privy Council in which the validity of a certain settlement was in question. There was in the Mahommedan law, as there was in the English law, an objection against perpetuity—that was to say, the right of one person to stretch his arm at great length beyond the grave and determine what should be the destination of property for a. very long period. The particular settlement in question was one in which it was sought to get out of the provision against perpetuity in the Mahommedan law by having, at the end of it, a bequest in favour of the poor, because, again, the Mahommedan law, as the English law, recognised the existence of a charitable trust. The only question of Debate was the validity of this particular instrument. The people who had devised this ingenious contrivance had made a settlement which was practically in perpetuity. It was for the family or friends—anybody who might, claim relationship by affinity or consanguinity with the settlor, and in the event of these all being exhausted, then, "for the benefit of the poor." The Judicial Committee of the Privy Council decided that that was a mere colourable addition, that the true character of the instrument was to establish a perpetuity and that the addition that in the event of a failure of all these persons it should then be a charitable trust, was only a colourable evading of the effect of the law. The noble Lord would observe, therefore, that the effect of the decision was simply that that particular instrument, that that particular contrivance, was invalid. That was a decision affirming the decision of the High Court of Calcutta, and that decision was based on the previous decision of the native courts in which the same conclusion had been arrived at. He need not point out that that was not a decision which affected to

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alter, or did alter, the Mahommedan law. He did not know whether the noble Lord suggested that, because there was dissatisfaction with the decision, there should be persons appointed who should instruct the Judicial Committee of the Privy Council in Indian law. It appeared to him that that certainty assumed that they were unable to do what they had been doing now for many years to, he submitted, the great satisfaction of Her Majesty's Indian subjects, and he had never heard, until the noble Lord himself suggested it, that their decisions had been questioned upon any ground of their ignorance of the matter with which they were dealing. They were competent, he presumed, to construe the English language; and the documents from which its decisions were obtained, and upon the authority of which they rested, were English translations, and he need not say that it was the duty of the Judicial Committee of the Privy Council, a duty which he was quite certain they discharged, to acquaint themselves with what was the Mahommedan law, just as they acquainted themselves with decisions of other systems of law which it was their duty to administer. He thought it right to make this explanation, lest it should be supposed that the Judicial Committee had, in this particular case, gone out of their ordinary course. His general answer to the noble Lord must be that he did not think the Government were at all prepared to adopt a new system of administering justice in the Judicial Committee, there being, as he thought, no failure of justice in particular cases. The answer to the first part of the noble Lord's question was simply in the negative.
THE PRIME MINISTER (The Marquess of SALISBURY: As my noble and learned Friend has divided the question into two, perhaps I had better reply to the end of it. But I shall not deal with it in any more satisfactory way, because the only thing I can say is that it is not according to precedent to draw into discussion the use which Her Majesty may make of her prerogative of conferring
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honour, and I should be sorry to set a bad example in that respect.
*LORD STANLEY OF ALDERLEYasked the noble and learned Lord on the Woolsack what further proof of the dissatisfaction in India could be given besides those already given. As to a colour of establishing a perpetuity; perpetuity is of the essense of a Vakf, and Sir Barnes Peacock had laid down with regard to Hindu perpetuities:—
"There is no rule in Hindu law which invalidates a conveyance or a gift inter vivos upon the ground of its creating a perpetuity. If it is contrary to policy to allow the Hindu law to prevail to its full extent, let that be modified by the Legislature, and not by the Judges."

CHURCH PATRONAGE TRANSFERS BILL.
On the Order for the Third Reading of this Bill,
THE EARL or KIMBERLEYsaid that before the most rev. Prelate, the Archbishop of York, moved the Amendments of which he had given notice, he should like to say a word as to the Bill. It seemed to him not to be very intelligible, and it was worded in a very curious manner. The effect of the operative clause, as he read it, was that a transfer was to be void unless notice—
"shall have been given to the diocesan registrar for four weeks before the completion of the said transfer."
"Four weeks before" was a very extraordinary expression, and he should have thought that the proper expression would have been "not less than four weeks before." Then came a still more singular thing. It was to be four weeks before the completion of the transfer, and, therefore, of course, at that time the transfer was not completed. The clause then went on to say that the transfer—
"shall take effect for all purposes as from the date when a copy of the instrument of transfer be deposited in the Diocesan Registry."

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Therefore, it seemed to him that the transfer was to take place before it was completed. That was only a drafting objection, but, at the same time, it seemed to him very desirable that the wording of the Bill, which, he conceived, was not likely to pass into law during the present Session, should be revised. Perhaps it was rather late to say so, but he must say that, for his part, he did not understand in the least what the object of the Bill was. A transfer, as the Bill was drafted, was to take effect at the date of the depositing of the notice, but there was no provision for anything to be done so far as he could see. If it were merely wished to have notice of a transfer having taken place it would have been enough, he should have thought, to have simply provided that when any transfer was made it should be immediately registered before the proper authority; but he supposed it was intended that there should be some mode or other of interfering or dealing with a transfer if there were any objection to it. Perhaps the most rev. Prelate could give the House some explanation of the object of the Bill.
THE ARCHBISHOP OF YORKsaid he did not quite apprehend the force of the noble Earl's objection to the Bill. It seemed to him quite sufficient to effect the purpose for which it was intended. There were constantly cases which he thought were very undesirable, that when a living became vacant the Bishop had not the least idea who was the patron of the living, because no man was bound to register the transfer of patronage from one to another. Both by the Select Committee of 1874 and the Royal Commission of 1878 a recommendation was made to the effect that a Bill of this kind should be passed. The Select Committee recommended—
"that all sales of advowsons or next presentations be duly registered within a limited time in the Diocesan Registry of the diocese in which the living is situated, with the names of vendor and purchaser, and that no sale not so registered be valid in law."
This Bill was an attempt to carry into effect the recommendation. The Royal Commission also recommended that no sale or patronage should be voted unless effected by an instrument registered in
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the Diocesan Registry. This recommendation was met by the Bill. Speaking from nearly twenty years' experience of the Episcopate, he felt confident that the Bill, short as it was, would effect a very great improvement in the matter of the jobbery which took place with regard to advowsons. There was no intention to interfere with bonâ fide transfers of advowsons, but merely to hinder those corrupt proceedings which at present were beyond the possibility of detection, and which left matters on the vacancy of any living in great confusion. He did not mean to say the Bill would do all their Lordships would wish to see done in the matter of patronage. It did not do all he wished to see done, but the hopelessness of passing a more comprehensive Measure on the subject induced him to bring forward this very brief Measure to remedy a very urgent and frequent evil.
THE EARL OF KIMBERLEYsaid he had no objection whatever to the registration, it might be very useful in some way, though he did not exactly see how. All he wished to say was that if it were desired that the transfer should be registered the simplest mode would be to provide that the transfer when completed and made should be registered. It might also be provided that no presentation should take place until some days after the registration, so as to give ample time for any inquiries to be made. As it stood he must repeat that this was the most unintelligible and ill-worded Bill he ever remembered being brought into the House.
Bill read a Third time.
Clause 1,—

CONDITION OF TRANSFER OF CHURCH PATRONAGE.
1. After the passing of this Act an assignment or transfer of the right of patronage or presentation to any benefice or cure of souls shall be void, unless notice of the intended assignment or transfer, and of the name of the transferee, shall have been given to the diocesan registrar for four weeks before the completion of the said assignment or transfer, and until a copy of the deed of assignment or transfer shall Lace been deposited in the Diocesan Registry.
THE ARCHBISHOP OF YORK THE ARCHBISHOP OF YORK moved to insert after the word "souls," the words—
"not being a transmission by death or by operation of law, or consequent upon a change of trustee."
He explained that the Amendment was intended to exempt from the operation of the Bill three cases in which its operation might be vexatious or injurious—namely, transmission by death, operation by law, or change of trustee. The exemptions were reasonable, and he was indebted to those noble and learned Lords who had suggested them to him.
Amendment agreed to.
THE ARCHBISHOP OF YORK THE ARCHBISHOP OF YORK moved to insert after the word "transfer," the words "so far as it relates to the said right of nomination or presentation." In pursuance of this Amendment it would not be necessary that the whole instrument should be registered, but only that portion of it which referred to the transfer of the patronage.
Amendment agreed to. Bill passed, and sent to the Commons.

METROPOLITAN AND OTHER POLICE COURTS BILL.
*LORD BELPER, in moving the Second Reading of this Bill, said that the Measure was intended to carry out an arrangement which was made by the late Government in the year 1895, and by which there would be a transfer of the expenses of the police courts, other than the salaries and superannuation allowances of the police magistrates, to the police fund. Hitherto, while the police stations had been supported by the police fund the police courts had been supported by Votes of Parliament. In many cases the buildings were under the same roof, and it had been found very inconvenient and confusing that there should be two controlling bodies. The property was to be transferred to the receiver of Metropolitan Police. It had been calculated that there would be an additional cost to the police fund by the transfer of about £6,600 a year, but some
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means had been sought by which the loss could be made up by the Treasury. For some years a demand had been made by the Receiver General for the expenses of the police employed at the Houses of Parliament to be paid by the Government. It had never been admitted by the Treasury that it was their duty to defray these expenses, which amounted to about £7,000, but it was now thought that their payment would be a. fair quid pro quo for the throwing of the expenses of the police courts upon the police fund. There was no reference to that circumstance in the Bill, but the arrangement would be secured by a letter from the Treasury. There were some negotiations and discussion with regard to the financial aspect of the Bill in the other House of Parliament, but eventually the Measure passed without Amendment, so that it might be assumed that it was practically assented to by the local authorities.
Read 2a (according to Order), and committed to a Committee of the Whole House on Monday next.

POLICE PROPERTY BILL.
*LORD BELPER, in moving the Second Reading of this Bill, said that a short time ago the Controller and Auditor General called attention to the fact that there appeared on the account of the Receiver a certain fund which had been known as the Prisoners' Unclaimed Property Fund, and which was not subject to audit. Subsequently it was found that the Acts of Parliament which gave powers with regard to the property which was found on prisoners were not adequate for the purpose; that although they gave tolerably adequate powers with respect to sums under £15, and property in connection with which an actual charge was made·, they gave no power under which the police could deal with larger sums or with property found on prisoners as to which no charge was made. Last year a Departmental Committee found that there were many cases not only in London but in the provinces, where property was found on prisoners which could not be dealt with under the existing, law. He might mention a few of those cases.

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Firstly, there was the case where a prisoner was, acquitted; secondly, the case where a prisoner might have absconded after being bailed; and, thirdly, the case where the prosecution did not appear. There was also the not uncommon case where a prisoner was charged on a number of different indictments, but where he was only convicted on one or two. There was no legal process by which the property which had not been made the subject of charge could be disposed of. The Bill, therefore, proposed that in any cases where property had come into the possession of the police in connection with any criminal charge or under certain sections of certain Acts of Parliament, a metropolitan police magistrate within the metropolitan police district and a court of summary jurisdiction elsewhere might make an order for the delivery of the property to the person who appeared to the magistrate to be the owner. It was also provided that the Secretary of State should make rules for the disposal of the property that came into the possession of the police. The Bill dealt with other details, such as the disposal of perishable goods and the money so received would be devoted in certain ways laid down in the Bill, and, finally, for the benefit of discharged prisoners. The Bill also provided for the audit of accounts, and, considering all the circumstances, he thought their Lordships would agree that the Bill should become law without further delay. He begged to move.
Bill read a Second time, and committed to a Committee of the Whole House on Monday next.

FINANCE BILL
Read 2a (according to Order); Committee negatived; and Bill to be Read 3a on Monday next.

LUNACY BILL [H.L.]
THE LORD CHANCELLOR THE LORD CHANCELLOR moved the Second Reading of this Bill, which, he said, dealt with matters which had been the subject of considerable discussion. He particularly referred to the question
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of pensions and allowances to officers in various asylums; and, so far as their Lordships were concerned, it might be necessary to introduce some Amendments.
THE EARL OF KIMBERLEYsaid he had no intention of saying anything as to the various provisions of the Bill, but representations had been made to him from the authorities in the lunatic asylum of Norfolk, in which county he resided, and also from other counties, to, the effect that the pensions proposed were not nearly sufficient. The proposal was to make the pensions the same as to Poor Law officers, but it was pointed out that the duties of those who had to do with patients were far more onerous than the duties discharged by Poor Law officers. ["Hear, hear!"] It not unfrequently happened that, from constant attendance on the patients, there was a tendency in the direction of the minds of the attendants to become affected, so that they had to retire at a comparatively early period. What was said was that the period of 60 years, as in the case of the Poor Law officials, was too high, and that the pensions were not sufficiently high. As regarded storekeepers, clerks, artisans, and workmen generally, this would not apply. It was suggested that the officials brought into immediate contact with the patients should be allowed to retire after 25 years, and at an age not less than 50 years, and that the scale of pensions should be higher. That view had been recognised in his county, and he believed some other counties had also adopted it, giving pensions considerably higher than proposed in the Bill. He thought the arguments in the direction he suggested were extremely strong, but at the same time he was aware that in parts of the country there was a feeling that the pensions should not be higher than in the Bill. Still, there was a feeling that the pensions should be commensurate with the service, and therefore he hoped it would be possible to amend the Bill.
THE LORD CHANCELLORsaid he entirely concurred in the remarks of the noble Earl.
Read 2a (according to Order); and committed to a Committee of the Whole House on Monday next.

BERRIEW SCHOOL BILL.
Read 2a (according to Order); and committed to a Committee of the Whole House on Monday next.
MUNICIPAL ELECTIONS (SCOTLAND) BILL [H.L.]
Considered in Committee (according to Order); Bill reported without Amendment; and re-committed to the Standing Committee.
VOLUNTEERS BILL.
Amendment reported (according to Order), and Bill to be Read 3a on Monday next.

WEIGHTS AND MEASURES (METRIC SYSTEM) BILL.
Brought from the Commons; Read 1a, and to be printed.—[No. 153.]
House Adjourned at Half-past Five o'Clock, to Monday next, a Quarter past Four o'Clock.