Sitting of 21 June 1827

REAL PROPERTY IN INDIA.
Mr. Fergussonrose pursuant to notice, to call the attention of the House to a matter which he deemed of great importance as connected with the administration of the law in his majesty's courts in the East-Indies. His object was, to obtain a select committee, to whose consideration three points would be submitted. The first related to the law affecting landed property belonging to British subjects residing within the jurisdiction of those courts; he used the term "landed" in preference to "real" property, because it had been made a question, and it was one to which he meant to draw the attention of the House, whether a British subject could hold real property in India. For himself, he had no doubt upon the subject; for, to go no further back than the charter of the late king, granted to the supreme court of Bengal, it appeared that that charter gave power to the court to try all actions, real, personal, and mixed, against British subjects, and enabled the sheriff to seize and sell, for the satisfaction of the judgments of the court, the lands, houses, and effects, real and personal, of a defendant being a British subject. But doubts had certainly obtained on this subject, and the supreme court of Calcutta had been divided upon it, in a case which happened whilst he (Mr. Fergusson) practised at the bar; then one of the learned judges holding that such property was a chattel and not real estate in the hands of British subjects. The judgments of the court of Bengal had been, however, uniform in establishing the point, that such property was real estate, modified by the charter, which made it saleable under writs of execution, and so far in the nature of a chattel; it had also been at all times held in the supreme court of Bengal, that lands and houses were assets in the hands of executors and administrators of British subjects deceased, for the payment of their debts generally. On this point no doubt had ever existed till lately, nor was there any difference of opinion upon it amongst those who considered property in lands and houses to be real estate, and those who deemed them to be a chattel interest only. In a late case, however,
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which came before the Supreme Court of Calcutta, the chief justice, of whose high character and talents he (Mr. Fergusson) wished to speak with every respect, had held (as reported) that lands and houses were not assets in the hands of executors and administrators—a doctrine which, if established, would shake the title to every house and foot of land, almost without exception, within Calcutta; for there was scarcely a single title which in one or more of its links, was not composed of a conveyance or conveyances from an executor or administrator. This opinion of the chief justice, although the majority of the court decided against it, had spread, as his (Mr. Fergusson's) letters expressed it, consternation throughout the presidency; and the rather, in that the chief justice had declared (as it was stated) from the bench, that he would not consider himself as bound by the precedent. The importance of this matter would appear, when it was considered that within the last twenty years, from the decaying state of the export trade of India, remittances could not be had but at the most ruinous rates, and that a large portion of the capital and wealth of British subjects and others, amounting to several millions sterling, had been invested in the purchase of lands and houses, or had been lent to persons speculating in such purchases, whereby there had been created, at a vast expense, one of the most magnificent cities in the world. But the interests of every landholder in Calcutta, and every creditor of a landholder, would be in jeopardy, should the doctrine of the chief justice (at variance with that of every other judge for more than fifty years, and with the invariable practice of the court and the profession during the same period,) be acted upon as law. The fear entertained on this subject might be considered to be the less groundless, as during a vacancy in the court, such as that which happened almost immediately after the judgment of the court in the case referred to, there being only two judges, the decision rested wholly with the chief justice. Mr. Fergusson said, he had expected to receive before this time a copy of the opinion given by the chief justice, and also petitions which were in preparation on this important subject, in which case it was his intention to have moved at once for leave to bring in a bill to declare the law in this matter. He

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had not yet received those documents, but he trusted, that the House would be of opinion that it was matter fit to be referred to a committee, who might report, upon the examination of witnesses, what the law and the usage were, and also take into consideration the law and the usage at the other presidencies in India, where no difference of opinion, he believed, had existed on these points, on which, however, it was obviously important to establish uniformity of decision. He would now proceed to the consideration of another point, not of less importance, as connected with the administration of the law in criminal cases in the king's court in India. Those courts were four in number; he meant the courts of Oyer and Terminer and gaol delivery, established at Calcutta, Madras, Bombay, and Prince of Wales's Island, having the same extensive jurisdiction in respect of crimes committed by British subjects, not merely within the local jurisdiction of those courts, but within a circle embracing almost one half of the habitable globe. Now as the charter of the different courts of Oyer and Terminer had been granted at different periods, and as these charters brought with them the common law of England, and the statute law, as it stood at the respective periods of granting the charters, it followed, that the administration of the criminal law must be different in the different courts. With respect to the three supreme courts of India, established at Calcutta, Madras, and Bombay, it was now generally understood, that the English law was introduced into those settlements by the charter of George 1st granted in the year 1726, and that no statute, passed since that period, extended to the British settlements in India, unless named expressly in such statute, or by direct and necessary implication. The charter of George 1st created the mayors courts for the determining of civil suits, and also constituted the governor and council of each settlement a court of Oyer and Terminer, but with much less extensive jurisdiction than the courts of that description now had. But the charter of George 1st had been surrendered in the reign of George 2nd, in the year 1753, and a new charter was granted; and in the year 1774 this latter charter, as to Bengal, was replaced by the charter granted to the present court, which was created a supreme court of judicature.
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At the settlements of Madras and Bombay new charters were successively, and at different periods, granted first to the recorder's courts, and afterwards to the supreme courts of judicature, as in Bengal. In the year 1807, the recorder's court was established at Prince of Wales's Island, having the same extensive criminal jurisdiction as the other courts. It was clear that the statute law of England was introduced for the first time at Prince of Wales's Island by the charter last mentioned, and so it was declared, at the opening of the court, by the very learned judge, who afterwards presided at the court of Madras. A most important point arose in respect to the administration of criminal justice under these different charters, namely, whether, upon the surrender of the former charters of Calcutta, Madras, and Bombay, the law continued to stand as it did at the time of the first charter in 1726, or whether each renewal of charter introduced the enactments which had in the interval been made. The judges who tried Nundcomar must have been of the latter opinion, for Nundcomar was tried, convicted, and executed, for forgery, made capital by statute long subsequent to the granting of the first charter. That precedent had not, however, been followed; and as forgery of the same nature as that for which Nundcomar was tried had since been made, by statute 53 George 3rd, a transportable misdemeanour, this last enactment might be considered as a legislative exposition of the law in that particular matter. But he (Mr. Fergusson) had still heard doubts entertained by very learned persons as to the operation of the renewal of the different charters in the above respect; and, at all events, it was clear that a British subject, if tried at Prince of Wales's Island for the same offence committed within the same jurisdiction, would be tried by a different law from that by which a British subject would be tried at Calcutta, Madras, and Bombay. An offence under lord Ellen-borough's act, for instance, was capital if tried at Prince of Wales's Island, but was a misdemeanour only if tried at Calcutta, Madras, and Bombay. The acts respecting the embezzlements of clerks and servants were in force at the former place, and the offence was there a transportable felony; at the other settlements it was a mere breach of trust. The same

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with respect to the statute of false pretences, which had no operation at Calcutta, Madras, or Bombay, but was a transportable misdemeanour at Prince of Wales's island. Surely it was time to put an end to this monstrous anomaly. There was another point connected with this subject also of great importance. The general doctrine was, that even as to such parts of the statute law of England as extended to India, as far as respected the time of their enactment, the court must still determine as to their applicability. The Black Act, for instance, passed in the 9th of George 1st, extended to India; but all its provisions were as clearly not applicable to the state and circumstances of that country. This might give rise to a difference of construction in the different courts, and the judges ought, as far as practicable, to be relieved from so painful a duty as that which might be imposed upon them in this respect. These points would be well deserving of the best attention which the committee could bestow upon them. There was only one point more upon which he would trouble the House. The labours of the committee would necessarily be imperfect, if they were not to remove the uncertainty which appeared to exist as to the persons who were subject to the jurisdiction of the courts in question. In the acts of parliament, the terms employed were sometimes "British subjects," at others, "subjects of his Majesty," and at others, "subjects of his Majesty of Great Britain," or "his Majesty's European British subjects." The clause in the charter respecting juries, provided that persons serving on juries shall be subjects of his majesty of Great Britain; but the term "subjects of his majesty," generally, is used to denote the persons who are to be tried. He (Mr. Fergusson) had known the case of an Armenian, born in Calcutta, who, as a king's subject, was held liable to the penalties of the law respecting usury; although beyond the boundaries of Calcutta he would, probably, not have been treated or considered as a British subject. What, then, were all the inhabitants of Calcutta, born in that settlement, and not Mahomedans or Hindoos? Were they British subjects, or not? or was there a distinction between those born in wedlock and those not so born? Every inhabitant of Bombay was, by the royal grant of -Charles 2nd to the
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East-India Company, declared to have all the privileges and immunities of a natural subject and free denizen, as if he had been born in the kingdom of England. There was a large and growing population in India, consisting of persons of mixed blood, who were Christians, and whose state and condition could not but excite great interest. These persons, although Christians, were liable beyond the local jurisdiction of the king's courts, to be tried by the Mahomedan law, where the Moulavee, or Mahomedan law officer, was to expound the law, and to decide by his futwa on the life or death of a Christian. It was, happily, true, that capital punishment could not be inflicted, unless the decision were confirmed by the highest criminal court, the Nizamut Adawlut; but the system itself was well worthy of consideration, although he (Mr. Ferguson) admitted that it was a question which ought to be approached with great caution. The Christians of mixed blood, many of them persons of considerable property, had no law but the Mahomedan law to decide upon their civil rights, beyond the local jurisdiction of the king's courts. The succession to their estates was governed by the Mahomedan law. He saw no reason why the illegitimate children of such Christians might not succeed to their estates equally with the legitimate, or why such Christians might not indulge in plurality of wives, if the Mahomedan law was to be the rule by which their civil rights were to be governed. If they were not British subjects, the ecclesiastical courts established in India had no power or authority over them, for their jurisdiction was expressly confined to British subjects. The hon. member said, that he had only further to observe, that he had no wish that the committee which he was about to propose should interfere in any manner with the authority of the British government in India, which he believed and knew to be a wise and beneficent government over the natives of India.—Mr. Fergusson concluded by moving, "that a select committee be appointed, to inquire and report on the law respecting landed property belonging to British subjects, in the territories subject to the government of the East-India Company, and whether the same be liable, in the hands of their executors and administrators, to the payment of their simple contract debts; and also, what persons, as British subjects,

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are amenable to the jurisdiction of his majesty's courts in the East Indies, in respect of their persons and property, and what parts of the statute law of England extend, or ought to be extended, to the said territories, with a view to ensure uniformity of decision in the said courts."
Mr. Wynnexpressed himself hostile to a motion which embraced such an extent and variety of objects. It was introduced at the very close of the session, when it was obviously impossible, if the committee were appointed, that it would be enabled to report on any one of the subjects which were comprised in the motion. But if it had been brought forward at the commencement, instead of the close of the session, still he could not have agreed to it. Amongst other things, the committee was to declare its opinion "whether landed property belonging to British subjects in the territories subject to the East-India Company, was liable, in the hands of administrators or executors, for the payment of simple contract debts." This was a question of law—a question for the decision of the law authorities; and the learned gentleman himself had stated that a difference of opinion existed amongst the judges in India on that point. The chief justice, it appeared, was of one opinion, and the two puisne judges held the same opinion as the learned gentleman. But if the party against whom the decision was given felt himself aggrieved, an appeal to the privy council was still open to him. When a question of this kind was actually pending, was it regular to come before parliament, and to call for the judgment of a committee on the law? There were some points connected with the law which a committee might ascertain, and on which they might decide; but it was not their province to state what the law was. To declare what the law ought to be—to point out how it might be reformed—was a very different thing. With respect to the meaning of the law, as to its operation on landed property, that was a fit subject for the consideration of the courts. As to the criminal law, it was a question of great importance, and it was highly desirable that a greater degree of uniformity should be introduced into it; but he did not think it by any means desirable that a committee of the House of Commons should be called on to effect that object. He should like to see the law altered and simplified, but that, perhaps,
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would be better effected by individual exertion, than by the labours of a committee.
Mr. Fergusson,in reply, said, that the case decided in Calcutta, which had been referred to, might never come under appeal, and if it did, would not decide many other questions of great importance, and of some doubt, respecting the law of landed property in India; for instance, whether the widow was entitled to dower, and whether such dower was to have the preference or not over debts. Besides, this case, if decided upon appeal, would be a decision for the presidency of Bengal only, whereas, it was his (Mr. Fergusson's) wish that the same law should be declared for all the territories subject to the different presidencies, and that a uniformity of decision should be ensured in all the courts, on this and on every other point connected with the administration of the law in India. He (Mr. Fergusson) was not satisfied that any great change in the system of administering the law could be best effected by the exertion of individuals; he thought it could be better done by a committee or commission, with power to examine witnesses, than by private and personal intercourse only, although the latter would no doubt also be very valuable. At the late period of the session, however, as little progress could be made if a committee were to be appointed, he would, for that reason, and for that only, abstain from pressing his motion, with a full determination, however, to bring the matter forward early in the next session, should it not be taken up by some person more competent to do it justice. As far as depended on him (Mr. Fergusson) he should not cease his endeavours for that end, until he saw the administration of justice in India made as perfect—he trusted it was as pure—as at home.

NAVAL PROMOTIONS.
Mr. Hume,in rising, pursuant to notice, to move an address to his majesty, on the subject of Naval Promotions, adverted to the great importance of the subject. He had, on two occasions, called the attention of the House to it; and he had proved by facts, that the government bestowed this patronage through motives of personal favour, or with reference to parliamentary influence. The service of the country did not warrant in any degree the extent of those promotions. Some ex-

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cuses had been made for them, but nothing that appeared to him to justify the expense incurred. On the 9th of June, 1823, he had moved for the then last list of promotions. Since that time, he was bound to state, that a larger number of old officers had been promoted, than had been known for a considerable time. He would not say that the alteration had grown out of his motion; but he was happy to say, that the evil which had previously existed was much mitigated since that time. He never wished to lower the glory or strength of the navy, by withholding from it any necessary supplies; but he was of opinion, that promotions should only take place with reference to the real wants of the navy, and the ability of the country to bear the expense. In 1822, that House had addressed the Throne, praying his majesty to direct his ministers to approximate the expenditure of the country as nearly as possible to the expenditure of 1792; and to reduce, as far as was practicable, the navy, army, ordnance, and other establishments. His majesty's answer was, that such directions should be given. Now, considering the scale of expense that was still kept up, he must say, that that House had not done its duty, in not insisting on much larger retrenchments. He should at present confine himself to the navy. The hon. gentleman then entered into a detail of the increase of naval officers from 1792 to the present time, which he censured as extravagant and uncalled-for. The half-pay had increased in a proportionate degree. In 1792, it amounted to 170,000 l.; in 1816 it had reached nearly 800,000 l., and it still continued, with very little difference, at the same amount. Of five thousand five hundred and fifty-eight naval officers, only eight hundred and forty-two were employed. Indeed, they had three or four times the number of officers they could employ, if all the ships in the British navy were employed to-morrow. Besides all this expense, there was a million and a half dead-weight. When they viewed all these burthens, and saw the revenue decreasing, ought not that House to call loudly for retrenchment? He had before stated, that many of these promotions must have arisen from personal favour or parliamentary influence, and the papers on the table fully bore out the fact. He there saw the names of individuals who were raised, last year, to the rank of post
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captains, some of whom were not born in 1802. They were put over the heads of old and deserving officers, while the half-pay of the latter added to the dead-weight. The hon. member concluded with moving,
1. "That, according to returns made to this House, it appears that on the 1st of January, 1827, there were five thousand five hundred and fifty-eight commissioned officers in the royal navy, from the rank of admiral to that of lieutenant inclusive, of whom only eight hundred and forty-two were employed afloat.
2. "That this House has voted in this session the sum of 718,000 l. for half-pay flag-officers, captains, commanders, lieutenants, chaplains, and pursers, of his majesty's fleet, who may be unemployed during the present year, which large amount is exclusive of 579,359 l. voted for half-pay, superannuations, and allowances to officers of the royal marines, to masters and other naval and civil officers, widows and orphans; and exclusive of 250,000 l. voted for Greenwich hospital, making an aggregate of 1,547,359 l. for the ineffective portion of the naval and marine departments of the public service.
3. "That therefore an humble Address be presented to his Majesty, to express the earnest wish of this House, that he will be graciously pleased to take into his consideration the present great number of Officers of the Royal Navy, and having regard to the state of the Finances of the Country, its diminished Revenue, and the heavy load of Taxation on the People, that he will be graciously pleased to direct that no further promotions be made in the navy, except on very extraordinary and urgent occasions, where the particular merit or great length of service of individuals authorize such promotion, as essential to maintain the best interests and high character of the Naval Service of the Country."
Sir G. Cockburnsaid, that if the navy was not occasionally supplied with young officers, we should, in the event of a war, be left with a complement of officers, who, from age, would be unable to fight the country's battles. There were two descriptions of promotion; the one was the rewarding existing officers for particular services, and the other the bringing forward of younger men. The objects of the latter promotion were, in great part, the sons of meritorious officers in the army and navy. The desire to obtain promotion was the

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incentive to gallantry and good conduct. Take away the chance of promotion, and much of the zeal which was at present displayed in the service would disappear with it. He considered the continuance of the system of promotion absolutely necessary: and on that ground he would move the previous question, on the two first branches of the hon. mover's proposition. As to the address, he would allow it to go to the vote.
Sir J. Yorkesaid, the question was one which bore materially upon the finances of the country, and he should consider that he was shrinking from the performance of his duty, if he did not state that it was necessary to exercise a considerable degree of caution with respect to promotions. Some check should be put to the immense patronage which was placed at the disposal of the different branches of the public service. If the chancellor of the Exchequer would endeavour to apply some check to that patronage, he would be the strongest minister that had ever conducted the affairs of the nation. If he did not adopt that line of conduct, he would soon sink to the level of the ministers who had preceded him. It might be the means of checking promotion in the navy to have them gazetted. He had proposed that course to the hon. Secretary to the Admiralty (Mr. Croker); but he had objected to it, in that mysterious manner which he sometimes adopted, without, however, giving any reasons for the objection.
After a short conversation, the motion was negatived.

WAREHOUSED CORN BILL.
The House having gone into a committee on this bill,
Sir E. Knatchbullsaid, he doubted very much whether the mere admission of the corn in bond, upon the terms proposed, would not so affect the market, as to prevent the home agriculturist from obtaining a remunerating price. The best point about the measure was, that it would answer as an experiment; and the result might guide the House in their view of what should be the permanent measure next year. He doubted whether the late measure could fairly be called lord Liverpool's. That noble lord might have been favourable to the principle of the bill, but he did not think that he had been the author of all its details.
Mr. Canningsaid, that his first speech
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to the House in bringing forward the late measure had been spoken from the memorandum of lord Liverpool himself, as from a brief. One new clause he certainly had introduced; namely, the clause which empowered his majesty to stop the importation from any particular country, with which the interests of England made it inconvenient that we should deal; but that clause had not been one of the parts objected to. For the question of price, the price of 60s. had not only been fixed by lord Liverpool, but that noble lord had told him in conversation, that he had met the hon. baronet, and that he had mentioned the subject of price to the hon. baronet, who had replied that he was satisfied with a price of 60s., rather upwards than downwards. With reference to the principle of the bill, he agreed that there was difficulty to be met: the possibility of producing suffering to the agricultural classes was not to be overlooked, although he had to remove the actual and existing suffering of the manufacturing interests. This, however, would be agreed upon all hands—that the privations of the manufacturers had been borne with a patience that merited the highest encomium, and that could have but one effect—that of inducing an increased anxiety, on the part of the legislature, to adopt every measure calculated to give them relief. Important as the late bill must necessarily have appeared to them, it was remarkable how little the House had been importuned by them in its progress. He trusted, that the House would come to the discussion of the question next year with minds perfectly unbiassed, and that nothing would occur in the mean time to create, on either side, the slightest feeling of irritation.
Mr. Bankessaid, that 60s. might have been tolerated as a medium price; but, under the provisions of the late bill, it would have been likely to become a maximum. He for himself rejoiced that that bill had been lost.
The bill then went through the committee.