Sitting of 26 July 1853

GOVERNMENT OF INDIA BILL.
Order for Committee read; House in Committee.
MR. J. G. PHILLIMOREmoved the insertion of the following Clause:—
"And whereas it is expedient that a tribunal should be constituted to decide upon and take cognizance of any disputes that may arise between the Government of British India and any Native Prince not a British subject; and to interpret ally treaty of which the meaning may be disputed between any Native Prince and the British Government, be it enacted, that the Queen's Judges at each Presidency shall henceforth be respectively a competent court to decide any question in dispute between the Government of British India and any Native Prince not a subject of the British Crown, who shall appeal to such tribunal, and that an appeal from the decision of such tribunal shall lie to the Court of Privy Council in this country, and that such decision of the Court of Privy Council shall be final."
The hon. Member said, that all statesmen who had directed their attention to the subject were agreed upon the advisability of having such a tribunal established in

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India. Mr. Pitt had suggested one as nearly as possible identical with his proposition. There was a still more recent authority—Sir Robert Peel. In June, 1832, Sir John Malcolm brought under the notice of the House of Commons a claim against the East India Company; and Sir Robert Peel expressed a hope that the Charter would not be renewed without the appointment of some body, whether members of the Privy Council or a Special Committee, to consider these claims, because he strongly objected to their being discussed in Parliament, as tending to shake the authority of the East India Company. The answer of Lord Althorp to a question on this subject, was the usual official answer, which he supposed always had been, and always would, be given—that the question was under the consideration of the Government. He was quite ready to listen to any suggestion which the right hon. President of the Board of Control might make with regard to the constitution of the Court. The Court which this clause would create was something like the Supreme Court in America, which possessed two jurisdictions—an appellate and an original jurisdiction; the original jurisdiction taking cognisance of matters in dispute between the different States, and being the Supreme Court of the American Union in its federative capacity. The functions of that Court were found to be efficient; and he believed it would be the same with the Court he proposed to establish, composed of the English Judges in India, to hear and decide disputes between independent States and the Company. At present there was no redress—no remedy. The Company did that which was contrary to every principle of jurisprudence—pronounced the law in its own cause. The interests concerned in this matter were neither light nor inconsiderable. The subsidiary and protected States in India were 400 in number, with a population of 50,000,000. Their annual revenue was 10,000,000 l., and they paid about 1,000,000 l. as tribute to the Company. They kept on foot an army of 435,000 men, the army of the Company being about 290,000. These States were expressly forbidden from making war or peace, or entering into any diplomatic relations, without the consent of the Company. He ventured to assert that they might ransack history, and not find instances of more cold-blooded cruelty, or events which had more excited the scorn and indignation of civilised nations, than
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had characterised the conduct of the Company towards most of these dependent States. In the cases of the Rajah of Sattara and the Rajah of Coorg, they had interfered with the rights of private life, violated the most sacred ties possible to exist, and been guilty of conduct which, in a private individual, would have led to his expulsion, as a scandal and a disgrace, from all civilised society. The cases of the Nizam and the King of Oude were little inferior in atrocity. It was a system of grinding down these unhappy States, by levying on them enormous contingencies, which it was impossible for them to pay, whilst there was no tribunal to which they could appeal for redress. The maxims laid down by Lord Dalhousie, which had never been reprobated by the Government at home, were not only contrary to justice, but calculated to expose our interests in the East to the most severe danger. They were maxims of the most unlimited ambition, and contrary to the advice of the best and wisest counsellors. Lord Dalhousie said, "We are lords paramount, and our policy is to acquire as direct a dominion over the 717,000 square miles still possessed by Native Princes as we already have over the other half of India." The same doctrine was propounded by Mr. Campbell; but nothing, he conceived, could lead to more gross or more flagrant injustice. It was supposed that the revenues of the Company would be increased by incorporating these subsidiary States; but instead of that, the annexation of Sattara was a drain on their resources. If they were totally inaccessible to any higher motives or more conscientious feelings, he considered it to be the interest of this country to guard as carefully as possible against the annexation of any fresh dominions in the East; its only effect being to increase the patronage of the Company. Cases might be instanced far more glaring and scandalous than anything which had occurred in the worst days of Napoleon, and compared with which the proceedings of the Chamber of Commerce in the days of Louis XIV. sank into utter insignificance. The Dey of Algiers was reported to have said to a person who went to him for redress for a robbery of which he had been the subject, "My friend, don't you know that my people are a band of robbers, and that I am their captain? It's of no use coming to me for justice." Better that the Company should at once say that, than that they should persist in the

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miserable, equivocal, and ill-contrived system, which added every day fresh grounds to the complaints of our subjects, and showed the utter inutility of expostulation. He agreed with Grotius, that crimes of this nature ultimately drew down their own punishment; so, the East India Company might depend on one day meeting their desert; but with the view, in the meantime, of redressing the wrongs to which he had alluded, he moved the clause which he had read.
MR. LOWEsaid, that the speech of the hon. and learned Gentleman had been principally directed to the injuries which in times gone by the population of India had suffered at our hands. It was not worth while, however, to follow the hon. and learned Gentleman into that discussion, because we had now to deal with questions of the present day. The proposition of the hon. and learned Gentleman was this—that the Judges of the Supreme Court in India should be established as a sort of Amphyctionic Council to decide disputes between ourselves and the Native States; but that proposition involved the question of the propriety or necessity of such a Council existing at all—a matter upon which the hon. and learned Gentleman had not touched—whether it would be advantageous to set up such a power superior to the Administration, not supported by physical force. How far such a power was calculated to work out its ends, when reason was often silent, and force was only listened to, he must leave the Committee to decide. But, more than this, the experience of history taught us that, if arbitration between States were to prevail, it must be between independent States of something like equal power. There was nothing in history to show, when one State was immeasurably more powerful than the other—when one was entirely dependent for its existence upon the other—when one was in the position of protector, and the other of protected, that the interposition of a judicial tribunal, such as that proposed by the hon. and learned Gentleman, would have any other effect than to introduce the arts of chicane and deceit, leading to embroilment and dissatisfaction. Such being the position of affairs, he saw nothing that could be gained by the establishment of the institution now recommended. What was the nature of the Court proposed? He should have thought, at all events, that such an institution should be one which stood at least impartially between
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the parties. But the hon. and learned Gentleman proposed that the Court should consist of Judges appointed by the Crown of England, coming from a foreign nation ignorant of the international law, and whose time had been fully occupied in deciding the private disputes of citizens among each other. If, however, he (Mr. Lowe) conceded the general principle of the hon. and learned Gentleman's proposition, as he was by no means prepared to do, be could not imagine a tribunal more unfitted to carry it out than that now proposed—a tribunal possessing neither knowledge, leisure, nor responsibility. What was it that was to preserve the authority of such a Court in India? Certainly, public opinion in India could not do it, because public opinion could not be brought to bear upon Judges holding office under the Crown. The clause was also objectionable upon this ground:—Great complaints had been made against the very anomalous system of the Indian Government, which introduced into it such a multitude of people checking and counterchecking each other, which occasioned great delay. That was the great complaint at present, and it was one in which he thought there was some justice; but the remedy now proposed was to introduce the new and irresponsible power of these Judges. They were asked again to set up that imperium in imperio, after having already learnt the extreme insufficiency of the Supreme Court for the purpose in view. The principle of the form of the Indian Government had been clearly laid down in the evidence of Lord Hardinge. His Lordship said that it should appear to the people of India as nearly as possible to be a despotic Government—the check should come from behind, but not from before—it should not be presented to the eyes of the people of India, but should come from this country. Looking at the thing, then, either as men of the world, or with the experience of history, it would be seen that it was clearly impossible to make an Oriental people understand the nature of a power limited by checks. What we did for the sake of moderation would be attributed by them to weakness and discord; and, while endeavouring to secure the rights of the Natives, we should only be weakening the strength of the British Government in India. For these reasons he trusted that the Committee would negative the clause of the hon. and learned Gentleman.
MR. BRIGHTsaid, he had presented a petition from a gentleman who had been em-

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ployed by the Indian Government—Colonel Frith—praying for inquiry into a claim for certain sums of money owing to him by the Company. The same appeal was made twenty years ago; and it was upon a discussion arising out of that case that Sir Robert Peel expressed the opinion quoted by his hon. and learned Friend (Mr. J. Phillimore), that a clause should be introduced into the Charter Act establishing some other tribunal to which such cases might be referred. The tribunal now proposed was somewhat different, because it excluded the claims of British subjects, and confined its operations to disputes with Native Princes. Sir John Malcolm, who, in 1852, brought forward the case of Colonel Frith, withdrew his Motion upon the declaration of Lord Althorp that the subject of having some tribunal of the kind was under consideration. Nothing, however, had been done from that time to the present. He had examined all the documents relating to Colonel Frith's claim, and he believed it was perfectly just against the Company. Colonel Frith had advanced money for the purpose of India government to the King of Oude, and part of the territory of Oude was given to him as security. The Company took possession of the land, and liberated the King of Oude from all liabilities to Europeans. They took the security, but refused to take the responsibility; and there was no tribunal before which to bring the case, that justice might be clone. Sir Robert Peel suggested that the Privy Council should form a sort of equity tribunal for the purpose. If, then, the President of the Board of Control could not agree to this clause, he might insert a clause empowering the Committee of Privy Council to act as an equity tribunal for hearing and adjudicating on cases of this nature. He thought that proposal, if adopted, would relieve the right hon. Gentleman from many applications to which it was very difficult for him to give proper attention.
SIR CHARLES WOODsaid, that the suggestion of the hon. Gentleman who had just sat down materially differed from the proposal of the hon. and learned Member for Leominster (Mr. J. Phillimore). That proposal had been so completely met by his hon. Friend the Secretary for the Board of Control (Mr. Lowe), that it was not necessary for him to say one word about it. With regard to Colonel Frith's claim, it was not upon the East India Company, but against the King of Oude. Had it been against the East India Company, the Company might have been sued like any other body.
SIR JAMES W. HOGGcompared the speech of the hon. and learned Member for Leominster to the empty declamations of a schoolboy; but, while it was characterised by all the empty vapourings of youth, he regretted to say that it contained also the rancour of manhood. He did not know whether the expressions used by the hon. Gentleman escaped him in the heat of the argument or not; but when he mentioned one or two instances and spoke of the East India Company as a body, he said that if individuals in private life had acted in such a manner they would have been excluded from society—they would have been expelled and turned out of the community as a disgrace to society. Now, if from interested motives, he had wished the hon. Gentleman to have adopted any particular course, he should have asked him to indulge in violent declamation and abuse, for he should have felt that such a course would have no weight with the House or with the country. He would not follow the hon. and learned Gentleman into the course of proceedings alleged by him to have been pursued towards the Rajah of Sattara, because every invective he had heaped upon the East India Company, fell upon that House and upon the Government, who in every one of those proceedings had confirmed and sanctioned the decisions of the East India Company. With regard to the Rajah of Coorg, however he must state that that Rajah had been dethroned by Lord W. Bentinck, than whom a more humane Governor General had never existed. He was the last man who would have been guilty of oppression towards any individual, or towards any Native Prince, to whose rights he was always the most considerate. He challenged the hon. and learned Member to move for the papers connected with that dethronement, and upon those papers to bring the facts before Parliament. The Rajah of Coorg had been a kind of state prisoner for sixteen or seventeen years. He applied for leave to come to this country for one year. His application was granted for the purpose of bringing his daughter to this country. While in this country, Her Majesty had been pleased to stand as god-mother to the Rajah's daughter. He confessed that he could see no interference with the rights of private life, in this or in anything that had been done with regard to the Rajah of Coorg. He had come here specially and specifically on leave for one year: that leave expired, and he supposed that the act of hardship alluded to by the

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hon. and learned Gentleman was, that the Court of Directors refused to extend the period of leave, and, at the expiration of the year, desired the Ex-Rajah to return to that residence in India where he was bound to reside. The hon. Gentleman also spoke of other gentlemen in a disparaging way. He had alluded to a member of the civil service, who while in this country had been employing his time profitably, and was the author of two very able books upon India. But because the views of Mr. Campbell did not always accord with those of the hon. Gentleman, he seldom introduced his name without mentioning it disparagingly, and on the present occasion had spoken of the "coarse manner" in which Mr. Campbell writes upon a particular subject. Now he thought it astonishing that of all men the hon. and learned Gentleman should have ventured on that expression. Then, while commenting upon Lord Dalhousie's character and conduct, he talked of India being under the dominion of such a person—[Mr. PHILLIMORE: No!] If the words had escaped him incautiously, be (Sir J. W. Hogg) would abandon all observation upon them. The hon. Gentleman then stated that the Court of Directors were interested in the annexation of Sattara and other territories, because their patronage and influence were increased thereby. He begged to tell the hon. Member that he would find from the proceedings before the Committee, that the conquest of Scinde and the conquest of the Punjab, which were of far more importance than the conquest of Sattara, had caused no addition whatever to the civil service. Not one of these annexations had added one single individual to the civil service. With regard to the Motion for the appointment of a tribunal to discuss matters in dispute between the Government of India and Native Princes, he did not believe it possible to appoint such a court. That House was the only place of appeal on political matters between Government, either here or in India, and any State, either European or Native. It was open any person, whether Native or British subject, to sue the East India Company either in this country or in India. He was aware there were some cases in which he Government could not be sued in a court of justice, and that Colonel Frith's case was one of these; but that case was not a case of demand against the East India Company—it was the case of an individual requiring from the Government of India
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the exercise of their power and influence with a Native State to compel that Native State to pay a claim to a British subject, which the State itself denied the validity of. He should therefore oppose the proposition, for he thought it quite inconsistent with every principle of government.
MR. BRIGHTsaid, the claim of Colonel Frith was not as stated by the hon. Baronet, namely, that the Company should interfere to enforce payment of a sum of money from the King of Oude. The case was this—Colonel Frith being in command of a force at Oude, advanced his salary and other funds to defray the expenses of moving the troops about from one place to another, to serve the purposes of the East India Company. The King of Oude did not deny the debt in the first instance, but paid interest upon it. Subsequently the East India Company appropriated a part of the King of Oude's territory, and upon doing so they absolved him from all claims on the part of their servants, and took those claims upon themselves. Thus Colonel Frith was shut out from making his claims against the King of Oude; and though he might have no legal claim, he had certainly a strong moral claim against the Company. Colonel Frith had been for forty-five years a servant of the Company, and his father had been their servant before him; he believed that several thousands of pounds were fairly due to him, and all he asked was, that some tribunal should be appointed before whom he might bring his case. What was asked was, not that that House should decide, but that the House should appoint a tribunal for that purpose.
MR. J. G. PHILLIMOREsaid, the hon. Baronet (Sir J. W. Hogg) had unfairly attacked him in attributing rancour and want of generosity on the part of those who did not approve of the government and conduct of the East India Company. He must contend with respect to the tribunal he wished to see established, that analogous tribunals were to be found, not only in this country, but in foreign countries, and he was justified, therefore, in seeking to get them introduced into India. He did not concur in the opposition to the tribunals, because English Judges would be appointed by the Crown. He was satisfied sufficient time would be given to the Judges to acquire local information and experience, and that tribunals presided over by Crown Judges would be more efficacious and advantageous to India. He would admit that there were difficulties

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surrounding the establishment of such a tribunal as he had asked; but he denounced the fallacy of arguing its expediency from its difficulties, without taking into consideration that they were not insuperable, and that the benefit was very great. The thing was not impossible, and it was most desirable. He had carefully avoided saying anything that could have a personal application; he had confined himself to public acts and to public delinquencies; and his language had been throughout conformable to that view of the subject.
MR. J. A. SMITHsaid, he thought it desirable that some Court should be established for trying appeals in those numerous cases of hardship and grievance which were repeatedly occurring between the Government of India and the Natives. He saw no difficulty in this, and the principle had already been acted upon. In the case of the French claims, and many other disputed points, they had been reserved for the decision of the Judicial Committee of the Privy Council. The want of some such provision in the present Bill he regarded as a grave omission, inasmuch as it deprived a portion of Her Majesty's subjects of the possibility of obtaining the redress of grievances under which they believed they suffered. If the hon. and learned Member divided upon his Amendment, he should feel bound to vote with him.
SIR HERBERT MADDOCKsaid, he agreed in part with the proposition of the hon. and learned Mover of this Amendment, for he thought some appeal should be provided against the acts of the Government of India, and that some independent tribunal should be established for determining differences as between that Government and the Natives. He had been intimately acquainted with many of the Native Princes, and he was bound to say that generally he knew of no just ground that they had of complaint against the Indian Government; and he believed that they were for the most part impressed with a sense of gratitude for the protection they received from that Government The case of complaint alluded to by the hon. Member for Manchester (Mr. Bright) might bear inquiry, as questions upon which diversity of opinion existed; but the best mode of arranging all such differences was by means of such a tribunal as had beer suggested. There was, however, one case of gross political injustice that had not
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been alluded to, namely, the dethronement of the Ameers of Scinde, and the spoliation of their territory; and where so grievous a wrong had been committed, it was the duty of that House to provide a tribunal through which the aggrieved parties might obtain justice. As to the proposition of the hon. and learned Member, that the Judges of the Supreme Court should be an appellate authority to decide between the Governor General in Council, and the Native Princes, quasi independent princes, but virtually British subjects, it would be monstrous. It was essential to maintain the absolute power and unbounded authority of the Governor General in Council. There could not be, therefore, such an appellate Court in India as was proposed; but in this country he believed a court of appeal would be found to be most beneficial and advantageous to the people of India.
Clause negatived.
MR. BRIGHTsaid, in moving the clause of which he had given notice, his object was to establish a more speedy, effective, and less expensive administration of Indian affairs in England. It would be difficult to show why there should be two departments, destined to act together for the carrying on of the government of a great country, sitting at a distance from each other of two miles and 1,200 yards, which the new distance table, he believed, showed the India House was from the Board of Control—and which separation occasioned much useless labour, considerable delay, and great expense. He was of opinion that this would really be a practical Amendment, and as such he submitted it to the Committee. If acceded to, it would materially reduce the expenditure of the Home Government of India. The present annual expenditure of the Home Government of India actually amounted to 183,370 l., thus made up:—Salaries of the Court of Directors, 7,600 l.; contingent expenses, India House, 30,573 l.; salaries and allowances, India House, 94,930 l.; additional fee fund, 8,413 l.; pensions, India House and home establishment, 23,978 l.; new pensions, India House, 2,176 l.; miscellaneous—donation to Widows' Fund, home service, 1,738 l.; and to make up deficiencies to ditto, 9,850 l.; law charges, 4,110 l.; total per annum, 183,370 l. In addition to this, the expenses of the Board of Control amounted to 29,140 l., making a total annual expenditure for the Home Government of India of upwards of 210,000 l. Let the Committee compare this with other

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Government offices, and see what a difference there was. The annual expenditure of the Home Office, was 27,100 l.; of the Colonial Office, 39,175 l.; and of the Foreign Office, including printing presses and other matters, 69,400 l.—altogether, 135,675 l.; which was several thousands a year less than the charge for the establishment in Leadenhall-street alone. He could not understand why this charge of upwards of 180,000 l., including pensions, should be continued for carrying on the home government of India, when they had it upon the authority of the right hon. Member for Edinburgh (Mr. Macaulay), the right hon. Baronet the Member for Carlisle (Sir James Graham), Sir Charles Trevelyan, and others, that the principal Government of India should be in India, and that the Government of India here should be merely a Government of revision and control on great questions of policy, and that the system of constant intermeddling in minute matters cramped and fettered the Government in India, and occasioned a delay which was fatal to all improvement in Indian administration. What he proposed was, that there should be a building provided in the immediate neighbourhood of Downing-street, sufficiently capacious to receive both establishments—the India House and the Board of Control. He should suggest the transferring of the museum and library at the India House to some public purpose, and that the building itself be sold, the proceeds to be applied to the expense of a new building, and any surplus there might be could be devoted to beneficent objects in India. If these two departments were in one building together, there would be an end of a great deal of stupid and tedious correspondence between them, and a great deal of the delay, expense, and want of efficiency, which was the result of the present arrangement, would be got rid of. There was no reason why the Directors should not be brought nearer to Downing-street, where there was an excellent plot of vacant land, on which a building might be immediately erected. If this plan was adopted, the President of the Board of Control would be brought more closely into co-operation with the Directors, and many matter's being discussed by word of mouth instead of by letter, would take a tenth part of the time in being settled; while it would also be possible to reduce the staff of the Indian establishment both in this country and in India. In proof of
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his views, he would quote the opinions of Mr. Courtenay, who had been Secretary of the Board of Control from 1812 to 1830, and of Mr. Sullivan, and the following extract of a minute in Council by Lord Dalhousie, dated the 14th of April, 1852:—
"Everything, all the world over, moves faster now-a-days than it used to do, except the transaction of Indian business. What with the number of functionaries, boards, references, correspondences, and several governments in India—what with the distance, the reference for further information made from England, the fresh correspondences arising from that reference, and the consultation of the several authorities in England—the progress of any great public measure, even when all are equally disposed to promote it, is often discouragingly slow."
He believed there had not been a more useful or practical suggestion offered to the House during the discussion of this Bill than this, and if hereafter some change was made in the present mode of governing India, this arrangement would be a step in that direction.
Clause—
"Whereas it would tend to a more speedy and effective administration of Indian Affairs in England, and would materially diminish the expenditure of such administration, if the business of the two departments of the Board of Commissioners for the Affairs of India, and the Court of Directors of the East India Company, were transacted in one and the same building, it shall be lawful for the said Board of Commissioners to provide, and the said Board shall, within two years from the 30th day of April, 1854, provide, in some suitable situation, sufficient offices for the transaction of the business of the two Departments as aforesaid; and the said Board is hereby empowered to sell the buildings and premises now occupied by the Court of Directors in Leadenhall Street, in the City of London, and to apply the proceeds thereof to defray any expenses which may be incurred in providing convenient offices, in one building, for the use of the said Board of Commissioners, and the said Court of Directors."
Brought up, and read the First Time.
SIR CHARLES WOODsaid, he believed it might be possible, to some extent, to curtail the correspondence connected with Indian matter's; but to what extent that curtailment might be carried he was unable to say, and should not like to give an opinion without more experience. Whatever this might be, however, he would not delude the Committee with the idea that there would be any great saving in that respect. The principle of the double government had been now recognised, and if the Court of Directors were to continue to have their staff of officers, and the Board of Control theirs, he did not see how any

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very great saving could result from the proposition of the hon. Member. The actual expense of the Board of Control was only 23,000 l., and if the whole of that establishment were put down, there could not possibly be any very material diminution of expense; because, if that Board were abolished, some addition must necessarily be made to the staff of the Company. There existed a very general notion, and people had, he believed, talked themselves into the belief of it, that the circumstance of the two establishments occasioned very great delay in the transaction of business. From personal experience, he could assure the Committee that that was not the case, and that in no matter in which delay was of the slightest consequence did any occur. He had had some experience in various departments of Government., and there were few persons, probably, who had, therefore, better opportunities of forming an opinion of the facility with which business might be transacted than himself; and he had no hesitation in saving, having now been six months at the Board of Control, that his experience told him that in no matter of the slightest importance had a single day—and, he believed, he might say a single hour—been lost. He saw no advantage to be gained by selling the house in Leadenhall-street, and purchasing ground for the erection of new offices. The spot of ground which the hon. Member had indicated in Downing-street was required for other purposes; and, while the system of the double government was continued, he repeated that no inconvenience, no delay, and no injury to the public service could result from the mode in which the business was at present transacted in two different buildings.
MR. VERNON SMITHsaid, he was glad this question had been embodied in a clause. He was surprised that his right hon. Friend the President of the Board of Control, with his experience, should say that the vicinity of public offices did not promote the easy transaction of business. Take the case of the War Office and the Horse Guards; these being close together a great deal of preliminary business was settled orally and without correspondence; while, on the other hand, the office of the Duchy of Lancaster being at a distance from the Treasury, the only business transacted between them being questions of the rights of the Crown, all their communications were carried on by correspondence. He (Mr. V. Smith) had had some ex-
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perience of the Board of Control, and he was convinced that the distance between that office in Cannon Row, Westminster, and the India House, tended very much to lengthen the transaction of business. It was futile to argue on the point, as it was so obvious to common sense that the alteration would tend to promote expedition; and it must also tend to the diminution of the number of clerks. There was, besides, a moral consideration involved. They wanted a President of the Board of Control who should be thoroughly imbued with Indian affairs; and that would be more likely to be attained by his being in the same building with the governing body of India, and where he would, as it were, breathe an atmosphere of Indian affairs. He was convinced that such a knowledge of Indian affairs would be gained in half the time that it otherwise would be if the President lived under the same roof as the Court of Directors. Without meaning any imputation on the President of the Board of Control and the Court of Directors, he must say that they did not do their business so fast as it might be done, and he wished to enable them to do it faster.
SIR HERBERT MADDOCKsaid, he would support the clause, as there was so much practical good sense in it. When he held office in Bengal, he could say that not one-thousandth part of what he sent home for revision and advice was ever looked at. An immense mass of unreadable matter was sent home from India. He should therefore support the Amendment.
Motion made, and Question put, "That the said Clause be now read a Second Time."
The Committee divided:—Ayes 61; Noes 74: Majority 13.
MR. VERNON SMITHthen rose to bring forward the clause of which he had given notice. He said that at any rate it could not be thought that he was casting any imputation on his right hon. Friend the President of the Board of Control by this clause, for he proposed to increase his salary. He did not, however, mean the increase of his salary merely, but his object was to elevate his position to that of Secretary of State for India, and to raise him from an inferior position as a Member of the Cabinet. When this office was first created, the President of the Board of Control had a salary of 2,000 l. a year; but he held other offices of dignity and

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emolument at the same time. In 1810 the duties of the President of the Board of Control were confined to his own office, and the salary was raised to 5,000 l. a year. In 1831, when retrenchment was the order of the day, and a Committee on public expenditure was appointed, that Committee reported, without giving any reasons, that 3,500 l. a year was enough for this office. It could not be denied that to a certain extent the salary and dignity of an office were identified. The constitution of the Board of Control was as important as that of the Court of Directors, about which they had been so much engaged. The President should hold a high position in the Cabinet, should be taken from the best men, and be chosen not merely from political considerations, but with regard to his fitness for his office. Then he thought that a permanent Secretary was better than two political Secretaries; for it was highly necessary that there should be, as in other offices, a permanent Secretary, who would be always perfectly acquainted with the state of business in the office. As to information on Indian subjects in that House, that would now be afforded by the six nominated Directors, who might, and possibly would be, all Members of the House. If he succeeded in having it enacted that there should be only one political Secretary in the House, the result would be the appointment of a permanent Secretary. Every other measure having been carried by the Government against the private Members, he sincerely hoped that this probably the last Amendment which would be proposed, would be acceded to by the Government.
Clause—
"And whereas, by an Act passed in the third and fourth year of His Majesty King William the Fourth, entituled, 'An Act for effecting an arrangement with the East India Company, and for the better Government of His Majesty's Indian Territories till the thirtieth day of April, one thousand eight hundred and fifty-four,' it is enacted, that the President of the Board of Commissioners for the Affairs of India, but no other Commissioner, as such, and the Secretaries and other officers, shall be paid by the said Company such fixed salaries as His Majesty shall, by any warrant or warrants under his sign manual, countersigned by the Chancellor of the Exchequer for the time being, direct. Be it Enacted, That such fixed salary shall in no case be less than the salary which shall be paid to one of Her Majesty's Principal Secretaries of State; and that only one of the said Secretaries to the said Board shall be capable of being elected or sitting and voting in Parliament."
Brought up, and read the First Time.
VISCOUNT PALMERSTONsaid, there were very good reasons why it was impossible that the President of the Board of Control should, in the existing state of things, assume the title of a Secretary of State. The province of a Secretary of State was to convey and to signify the direct commands of the Crown, and so long, therefore, as the Government of India was conducted on the principle of a double government, it was impossible that those direct commands could be conveyed by the President of the Board of Control. The Minister, therefore, who directed that department of the public service could not assume the functions of a Secretary of State. He entirely agreed, however, with his right hon. Friend (Mr. V. Smith), that, for the reasons which he had stated, it was desirable that the President of the Board of Control should be placed, in regard to dignity, position, and salary, upon the footing of a Secretary of State. It was impossible to deny that the functions which he had to perform were equally important with those of a Secretary of State. It was impossible to deny that the consideration which he ought to enjoy, so far as that consideration depended upon the means which the salary afforded, ought to be equal to that enjoyed by a Secretary of State, and that there ought, in fact, to be no distinction between the position of the Minister of the Crown who performed the onerous and important duties of President of the Board of Control, and that occupied by any one of Her Majesty's Secretaries of State. Persons were very apt either to say that salary was wholly unimportant, or else that it was merely the object of selfish, grasping views. He looked upon this matter not as a person in the position of an officer of the Crown; but he trusted that he and his Colleagues might be allowed to claim for themselves the right of looking on it in the quality of independent Members of Parliament, and of persons attaching value and importance to considerations connected with the public service. Certainly, whether in office or out of office, he was prepared to say that it was for the advantage of the public service that persons holding high and responsible office under the Government should receive salaries commensurate with the position which they occupied, the functions which they performed, and the expenses to which in the performance of those duties they were necessarily exposed. It must also be borne in mind that persons whose whole time and

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thoughts were engaged in the performance of public duties could not give that attention to their private affairs which persons not so employed were able to devote. He thought that whatever might be the salary which Parliament might think right to attach to the offices of Secretaries of State, that salary ought, in his opinion, to be attached also to the office of the President of the Board of Control. He had taken upon himself the duty of stating this opinion to the Committee, because it was one which his right hon. Friend who held that office, perhaps, might feel more delicacy than he (Lord Palmerston) should feel in boldly and explicitly expressing it. On that point, therefore, he was quite prepared to agree to the proposition of his right. hon. Friend the Member for Northampton. The other proposition which he had made was, that by having only one political Secretary to the Board of Control, there should be attached to the Board, in lieu of a second political Secretary, a permanent Secretary. Now, he thought that that was a proposition of the utmost importance. He had had some experience in these matters, and he ventured to say that it was impossible to overrate the advantage to the public service of having in each department of the Government a permanent Secretary, not belonging to any political party, not swayed by passion and feeling, or by the political contests which were from time to time carried on: but a man who, being the depository of the lore and the knowledge belonging to that particular department, was able, being a person also of judgment and discretion, to give to the new comer into office that information as to the past events, as to the principles regulating the department, as to the knowledge of individuals, and as to the details of transactions, without which it was impossible, he ventured to say, for any man, let him be never so able and never so expert, when he first entered office, to perform his duties with that satisfaction to himself or advantage to the public which he would naturally desire. He should therefore most cordially assent to the proposition of his right hon. Friend; "and he was persuaded that no Government would grudge the small advantage which they might derive from the presence in Parliament of a second Secretary of the Board of Control, when considered in comparison with the great advantage to the public service which would be derived from having a permanent Under Secretary to that most important Board.
826
Having stated the readiness with which he concurred with that part of the proposal of his right hon. Friend, he should say no more.
SIR JAMES W. HOGGsaid, he must express himself as being exceedingly well pleased at his right hon. Friend's having made, and at the noble Lord's having acceded to this proposition. He was sure that all his colleagues in the Direction, and that everybody connected with the Government of India, would rejoice that the House of Commons should place the President of the Board of Control in the position which the magnitude and importance of his position not only warranted but required. As regarded the desirability of having a permanent Secretary at the Board, he entirely agreed with the noble Lord, and thought with him, that it was of the greatest importance to have in every department of the State some officer of the kind who did not change with the Ministry of the day, and who, long practised in his office and unbiassed by political feelings or by motives of interest, might be the depository of that information which was so useful in every case, and in the case of India so essential to the incoming Minister of the department.
MR. W. WILLIAMSsaid, that it would no doubt be thought a concession in some quarters that the Government, which had steadily rejected every Amendment to their Bill, had so promptly and generously repented in time to give this one their support. He, however, who ventured to think that the President of the Board of Control had hitherto been paid quite enough, could not see in this Bill merits so extraordinary as to warrant his voting for an accession of salary to its author. He could not, therefore, give his vote in favour of the proposition.
SIR HENRY WILLOUGHBYsaid, he had no objection to support the proposition that, whatever was the salary of Secretaries of State, the President of the Board of Control should have the same. He objected, however, to the style and title of the President of the Board of Control, who had no Board over which to preside.
MR. J. G. PHILLIMOREsaid, he also was extremely glad that the Government had given way to this proposal. It was extremely undesirable that the Gentlemen entrusted with great public duties should be underpaid.
SIR CHARLES BURRELLagreed that it was extremely undesirable that

827
Gentlemen holding office should be underpaid for the performance of their duties; but, at the same time, he would suggest that, in this case, an increase of the salary of the President of the Board of Control should be accompanied by a diminution of his patronage.
Motion made, and Question put, "That the said Clause be now read a Second Time."
The Committee divided:—Ayes 116; Noes 29: Majority 87.
MR. MONCKTON MILNESsaid, as a person deeply interested in this measure, he begged to tender his thanks to the Government for having allowed this "one" Amendment to pass.
MR. AYSHFORD WISEmoved a clause, that one-third of the pupils admitted to Addiscombe College should be selected from the sons of officers who were or who had been in the civil or military service of the East India Company, and that the selection of such persons should be made by the Governor General of India for the time being. This clause was to have been submitted to the consideration of the Committee by his hon. Colleague, who, he regretted to say, was obliged to remove from London on account of ill-health, and he must ask for the indulgence of the Committee whilst he endeavoured to prove the propriety of the proposal. No such proposition would have been thought of if the right hon. the President of the Board of Control had adhered to the statement he originally made. He stated, and indeed, the 32nd clause of the Act was so submitted to the House, that the nomination to Addiscombe and Haileybury should be withdrawn from the Directors. This clause was one of the few that he and his friends around him approved of. They had supported the Minister in all his endeavours to reform abuses and open the patronage; but all of a sudden this clause was withdrawn, and, as he thought, most unjustifiably withdrawn, proving, to say the least, on the part of the Minister, great indecision, or, what was worse, great insincerity. What had the right hon. Gentleman said on the 3rd of June? "Merit, and merit alone, is to be the test of introduction to the civil service and to the scientific branches of the Indian Army, and he proposed to throw open the nomination to Addiscombe." But what had the right hon. Gentleman said three days ago? "He had received such strong representations from Members of the Indian Committee, that he resolved to abstain from interfering in any way
828
with the present mode of admission to Addiscombe." Now, such a such system appeared to him a monstrous innovation on Parliamentary practice. If a Minister stated that a great principle, such as that of competition, was to be adopted in June, and a few weeks after came down to the House and gave that great principle up, having previously secured the other clauses of the Bill, and the support of himself and others to many of the clauses under false pretences, then he must say that such statements on introducing measures were nothing less than delusions, mockeries, and snares. He would not hesitate to call such an uncalled-for change political prostitution. The right hon. Gentleman, after professing most virtuous intentions, had yielded to the winning ways and affectionate overtures of the hon. Member for Honiton. What would the country think of an arrangement which restored to the Directors a patronage worth 288,000 l. a year, when it was immediately followed by a vote of that House, supported by the Directors of the East India Company, giving the right hon. the President of the Board of Control an increase of salary from 3,500 l. to 5,000 l. a year? The same inconsistency and contradiction were to be noticed in the statements made by the President of the Board of Control, with regard to the salary and patronage of the Directors. A few nights ago the right hon. Gentleman denied that he had ever connected the question of patronage with that of salary, and he had all along, he said, considered that an unfair way of viewing the question. Now, on June the 3rd, the right hon. Gentleman used these words:—
"The House is aware that at present every Director receives 300 l., and that the Chairman and Deputy Chairman have each 500 l. a year. Limiting their patronage in the manner I am about to state, we think there ought to be an increase in the amount of salary. He therefore proposed to give 500 l. to each Director, and 1,000 l. to the Chairman and Deputy Chairman."
It was trifling with public opinion to tell the House that the patronage was not substantially salary. Lord William Bentinck in 1837 told the House that "the Court of Directors sought their office for the sake of the patronage only." And what did Mr. Sullivan, who had a fifty years' experience of Indian affairs, say?—
"Their salaries are a trifle—300 l. a year; their patronage immense. Not only is patronage the object of those who are obliged to look for it as a provision for their children and relations, but of those who have no such need—the men of tens and hundreds of thousands—who find the judi-

829
cious distribution of their Indian patronage a sure means of drawing constituents to their banks and companies."
Notwithstanding their present patronage, what did the present Bill propose to do? The number of Directors was to be reduced to eighteen, six of whom were to be nominated by the Government. The patronage would be in reality greatly increased, and the very material change proposed in Clause 29 would add this year no less than 384 cadetships. This 29th clause permitted the Company to raise 20,000 European troops, instead of 12,200. It appeared to him bad policy to increase the provincial instead of the imperial army. India was now the chief school for our troops and officers, and he thought that a large English army in India, owing no allegiance to the Crown, and not under the control of Parliament, was most impolitic and undesirable. It weakened the link between the Crown and India, and necessarily would cause a reduction of Her Majesty's troops in India who were now paid for by the Company. He advocated a reform of the military system in India, and thought the double system indefensible and injurious to our imperial interests. He must say that this and many other clauses betokened hasty and ill-considered legislation, and demonstrated the gross injustice and danger of making new laws for India without full and fair inquiry. The Committee appointed by both Houses to consider the question had not reported, and it was certainly a singular way of recognising the use and value of Parliamentary Committees, to legislate before the inquiry was concluded, or the evidence in the hands of Members. He would not occupy the time of the Committee any longer, but proceed to the Amendment he had to propose. They were aware that there were at Addiscombe 150 gentlemen cadets. They each paid 100 l. a year. For six months they were probationary pupils, and if in six months there appeared no probability of their success, in two years they were returned to their friends as ineligible. The most distinguished of the cadets were appointed engineers, the second class to the horse and foot artillery, and the third class to the infantry. The annual appointments were about forty-five, and he proposed, as competition was given up, which he regretted, that fifteen of these should be nominated by the Governor General of India; the parties being the sons of old Indian officers who had done the State some service.
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There would be no political tendency in such appointments. If the right hon. Gentleman was earnestly bent on efficient reform, and anxious to do away with irresponsible family patronage, he ought to support this proposal; and he hoped the Committee would take it into its favourable consideration and support it in the division which it was his intention to take.
Clause—
"And be it Enacted, with regard to the admission of persons to the Military College at Addis-combo, that at least one-third of such persons shall be selected from the sons of officers who are, or who have been, in the civil or military service of the East India Company, and the selection of such persons shall be made by the Governor General of India for the time being."
Brought up, and read the First Time.
SIR CHARLES WOODsaid, he could not admit that he was blameable for making a change from the Bill as it had been originally introduced. He had already made another alteration in deference to the opinion of the hon. Member for Manchester (Mr. Bright), and if that were to be characterised as unfair or insincere, they might as well give up the idea of ever going into a Committee with the view of improving the details of any Bill. It had clearly appeared from the evidence that the claims of the Indian army were fully met, and that no son of an Indian officer who was otherwise competent would fail in obtaining his commission. The principle was not followed out in the British army, and he saw no reason why it should be adopted in the Indian army. The tendency of the evidence went to show that the sons of officers would rather suffer than benefit by the change proposed.
SIR DE LACY EVANSsaid, he conceived the proposition for augmenting the Directors' salaries perfectly well founded, as at present, unless they were paid by their patronage—an idea which they scouted—they were not sufficiently paid. With regard to giving one-third of the appointments to Addiscombe to the Governor General of India rather than to the Directors, he entirely approved of it. It was one of the highest distinctions of the Horse Guards that there this consideration was attended to, and meritorious officers found a recognition of their merits evinced towards their sons. Perfect purity was not to be expected where responsibility was distributed among a body of men. The Governor General was, in his opinion, the most proper to hold this patronage, and

831
the most likely to distribute it with advantage to the service. He hoped, therefore, that notwithstanding the Government's triumphant-opposition to many of what he considered improvements to the Bill, they would yield on this point, as they could so well afforded to do.
Motion made, and Question put, "That the said Clause be now read a Second Time."
The Committee divided:—Ayes 29; Noes 101: Majority 72.
House resumed.
Committee report progress.

POOR REMOVAL.
MR. APSLEY PELLATTrose to move for leave to bring in a Bill to abolish the removal of the poor, and to equalise the rates for their maintenance, and to make other amendments in the laws relating to the relief of the poor.
Notice taken that forty Members were not present; House counted; and forty Members not being present, the House was adjourned at a quarter after Six o'clock.

MINUTES.
PUBLIC BILLS.—1a Turnpike Acts Continuance, &c.; Sheep, &c. Contagious Diseases Prevention; Land Tax Redemption; Highway Rates: Newspaper Stamp Duties; Consolidated Annuities (Ireland).
2a Parish Vestries (No. 2); Courts of Common Law (Ireland); Municipal Corporations Act Amendment; Customs Duties; Dublin Parliamentary Registration.
Reported.—Missionary Bishops.
3a Bankruptcy (Scotland); Public Houses (Scotland).

COURTS OF COMMON LAW (IRELAND) BILL.
Order of the Day for the Second Reading read.
LORD BROUGHAM:* My Lords, in moving the second reading of this Bill, I have the satisfaction of finding, that it has been prepared with great care, by men of ample learning; intimately acquainted with the practice of the law, especially in Ireland to which it relates; and of competent skill in the framing of statutory provisions.
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It was introduced into the other House by my learned Friend, Mr. Whiteside, late Solicitor General of the sister kingdom, who explained and supported it in a statement eminently powerful, as it was perfectly luminous—a statement received with universal applause, and worthy in every respect of his high reputation. Introduced at the beginning of the Session, it has undergone repeated discussion in the course of the intervening period, and although only passed within the last ten days, it has gone through all its stages with an almost general assent.
It has been submitted to the heads of the law in Ireland, and been approved by the most distinguished members of the profession there, both on the bench and at the bar. I will not affirm that all the details have received this approval; but its general scope, and its main provisions, I feel justified in repeating, are sanctioned by the high authority I have referred to.
Unconnected with the sister kingdom, I have been asked to take charge of this Bill, from the circumstance being well known, that my opinions go entirely along with its provisions. It is now a quarter of century since I brought before the other House of Parliament a statement of the various anomalies, defects, and abuses in our law, but more especially in our judicial system; and I had occasion, therefore, in trying that system by the test of its agreement with principle, to examine the rules which ought to preside over its structure, and to govern its procedure. A very large proportion of the defects then denounced, have since been removed in this country, while some of the most glaring continue still the opprobrium of our jurisprudence. But it gives me unalloyed gratification to find, from the Bill to which I now solicit your attention, that all the principles laid down on that occasion, have been fully considered by its learned authors; that hardly one has been overlooked by them in framing the measure; and that by far the greater number of the proposals made, have been embodied in its provisions. But I will go further and express my admiration of the Judicial reforms actually effected in Ireland of late years. We may well envy as well as applaud the sister kingdom, when we look to the vast progress which she has made in the constitution of her Courts; in some improvements going before us by half a century; adopting others, which we ourselves have not yet made, to the incalculable benefit of

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our fellow subjects there. Thus the Civil Bill process has given them the great advantage of local courts for upwards of half a century. The Quarter-Session jurisdiction has had, during that period, the valuable aid of the Assistant Barrister, always chosen as Chairman, while in no instance have our justices availed themselves of the County Court Judge in this manner. For the last three years, a rational and effectual course has been taken for equalising the business in the superior courts, and there is no longer in Dublin the complaint so often and so justly made here—that one Court in Westminster Hall may have little to do, while another is overloaded. The suits are sent to all the three Irish Courts by rotation, in five and twenties, since the 13th and 14th of the Queen. But there is a natural anxiety further to amend the procedure, to adopt the improvements introduced here by the Act of the last Session, and to add others which are of greater value than those.
The Bill, then, which I am now to move, consists of two branches. It applies to Ireland the provisions of that Act, a hundred and forty odd clauses, having this object; its remaining clauses carry those provisions a great deal further, adopting some of the most important of the changes recommended by the second report of the Commissioners—a document which it is impossible to praise too highly for its enlightened, and at the same time judicious, views. But this Bill, in some material particulars, is in advance of the report; and I must at once distinctly affirm, that the steps which it proposes to take are both perfectly safe, and most important amendments of the law. As must ever happen in this course of legislation, we shall meet with resistance from two opposite classes of objectors, one dissatisfied with us for not going far enough, the other alarmed, lest, going so far, we should here after he obliged to go farther than is safe. But I well remember the answer made to this last and very prevalent objection, by one who was no friend of innovation—no rash reformer—no speculative dealer in changes, my lamented friend Sir W. Follett—one among the rare instances of Parliamentary all but equalling professional success. A measure which he supported was assailed with the cry, "You will not be allowed to stop here." "Wait," he replied, "till they attempt to push us on. Is the thing right to be done? That is the question now. If right, do it; and
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resist when they would have you do what is wrong!" This was, I believe, among the last occasions on which his persuasive voice was heard. Soon after, with his sorrowing friends of the Senate and of the Bar, I followed his remains to a premature grave:—Cujus corpus a me crematum est, quod contra decuit ab illo meum.
In all that regards Procedure, the objects to be ever kept in view, are, aiding well-grounded claims, discouraging unjust ones, and expediting all litigation:—in short, throwing open the Courts to suits which ought to be brought thither; closing the door to such as ought not; and quickening the decision of all. The provisions of the Bill are framed with a due regard to these incontrovertible maxims, although I am far from asserting that there may not remain further improvements to make procedure in all respects accord with them. In order to sift the cases, as it were, and apply these principles, there is nothing more important than encouraging compromise, or speedy termination of all controversy, by the permission to pay money into Court, or tender amends. This, which ought to be favoured by all means, is, on the contrary, by no means a favourite of the law. Nothing can well be conceived more absurd than the old rules which governed this matter, capricious in some respects, self-repugnant in others. The professed principle was, that any liquidated sum could be paid into Court, and yet payment was not allowed on a contract to deliver goods at a fixed price, nor in an action of debt for a fine in a Manor Court, nor in trover for goods certain; nay, in trover, even producing the goods in Court was not permitted, although the action nominally for their value, or rather for the tort of converting, the value being the rule for estimating the damages, was in reality brought to obtain the goods themselves. These absurdities and gross inconsistencies, under the disguise of excessive refinements upon a principle, are now done away, but still there is no power to pay in cases of tort, which, however, are exactly those where payment should most be favoured, as they are those where feelings are most excited. Here I have the misfortune of differing with the learned Commissioners. In the cases to which they refer, as giving more satisfaction by trial in Court, that trial may still be had though the money be tendered, because the plaintiff may refuse; and as for the chance of a wealthy defendant paying to

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prevent expense, he has the very same opportunity at present of buying off the plaintiff; he may agree to a verdict. The Bill now before us most justly provides, that in all cases whatever, there shall be the power of paying into Court. It goes as far as I had gone in the evidence and procedure Bill; only requiring the leave of the Court in cases of slander and seduction. The tendency of the power thus extended to discourage needless actions, and also to discourage vexatious defences, is manifest. I could have wished that a further step had been taken in the same direction, by improving the law of Arbitration. The provision in the English Act of 1833, making submissions irrevocable, was adopted in Ireland some years ago. But I wish they had been in advance of us in further preventing litigation by reference. I hope, in the course of a few days, to lay a Bill before your Lordships, having this important object in view; and that its provisions, if adopted in England, will be added to the Irish Bill, I can have no manner of doubt.
Suppose now that no compromise between the parties has taken place, and the suit must proceed, the first matter dealt with in this Bill is the compelling an appearance by providing a substitute where personal service cannot be had. Strictly speaking, this should have preceded our consideration of paying into Court, as that assumes an appearance; but substantially we have been treating of discouraging vexatious proceedings generally. Now, nothing can be more clumsy than the process of outlawry to compel an appearance. If the party has no tangible property, nothing whatever is effected: if he has, his adversary must resort to the Exchequer for his satisfaction; and then it may well be that the defendant is despoiled of his property in his absence on the other side of the globe, and without any intimation of the proceeding, either to himself or his connexions. Of late years a material improvement has been made in this process; the Common Law Courts adopting the Chancery procedure; but there is still a great imperfection. Application to the Court, or to a Judge at Chambers, must be made, for leave to substitute the constructive to the actual service; and nothing can be more prejudicial to the interest of parties than these numberless applications. Indeed, by the late Act, nine or ten attendances at Chambers are sometimes required, where one or two should suffice.
800
It is one of the greatest defects of that Act. The Bill which I am now moving, steers clear of this fault, and in respect of appearance, wisely proceeds upon the plan which has been found to answer in the Civil Bill Court, and which does not require application for leave.
The defendant having now appeared, we are to consider the statements of the parties for bringing before the Court their respective cases: in other words, the pleadings. And, first, it is proposed that all these statements should be verified by the oath or affirmation of the party making them. I am aware that this has not the sanction of the learned Commissioners; a thing more to be regretted than to be easily comprehended. The tendency of the verification will be most salutary, both in preventing unfounded claims, and in checking groundless defences. The objection that sometimes law and fact are so much blended as to deter scrupulous persons from verifying, is really of no avail in the argument, since the matter of fact alone would be sworn to. Then observe how the law now stands. All pleas in abatement must be upon oath, and every one is aware how the requiring this at once stopt a vast proportion of the vexatious pleadings formerly used for the sake of mere delay and of increasing expense. Again, in all Chancery suits, the defendant's statement is on oath, but, most absurdly, not the plaintiff's—so that a Cross Bill is required to make him verify. But in the County Courts at all times, and since 1851 in all Courts, it may be said that parties plead upon oath, because in the great majority of cases both are examined. Incalculable has indeed been the advantage of this change in the law; but I am clearly of opinion that it requires an addition—the Court should in every case have the discretionary authority to call for the parties; else, they in some cases may, the one from unwillingness to undergo cross-examination, the other from dread of putting his adversary in the witness-box, be kept back; whereas the Judge, only desirous to get at the truth, regardless of who may be injured by it, would examine both parties where the purposes of the inquiry appeared to demand it, Nor is it any answer to this proposition, that the party whom the Court wished to examine might keep out of the way. In the law which I am contemplating, provision should be made for preventing the absence of a party without reasonable cause; and who-

801
ever was not forthcoming, would always, without any such provision, expose himself to the observation that he kept away when called upon. I am now, however, upon the question of verification, and for the reasons which I have assigned, I entirely approve of this enactment in the Bill, conceiving that it rests upon the same principle with the other cases in which the party's oath is required.
The pleadings then thus verified, in what shall they consist? Here I must avow my entire approval of the Bill. It proceeds upon the broad principle, always the guide of those who would amend procedure, nay, who would amend the law generally, the principle exemplified in almost all the measures propounded by me, from the Libel Bill of 1816 down to the present day, and the greater part of which have been made law—the substitution of natural for technical procedure. This involves at once the abolition of forms of action; and surely nothing can be more glaringly absurd than the retaining of these, and of the pleadings consequent upon them. The object of all pleading is to let the parties know distinctly what they come to meet, and to let the Court know what their contention is—what they come prepared to maintain or to prove. Then see how little the forms of action tend to give this distinct information. Why, I will remind those who are lawyers among your Lordships, and inform such as are not, of what in 1828 I showed in the Commons, that the self-same form of action and the self-same words in the declaration, the plaintiff's statement of his case, may apply to at the least seven entirely different things—money paid to one person for another's use—money received on a consideration that fails, and the failure may be in a variety of ways, but the form of action and the description in the statement are the very same in all—money paid under mistake in point of fact—money paid to a stakeholder in consideration of an illegal contract with another person—money paid to a revenue officer for releasing goods illegally detained—to try the right in an office, instead of trying by an assize—to try the liability of the landlord for rates levied on his tenant—and in other forms of action, as trover, it is even worse; a chattel being in the possession of another than the rightful owner, may be so simply by his finding it—or he may pretend title to it—or it may have been deposited with him—or he may stop it because the price was not paid—or it may have been sold after the original
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owner's bankruptcy, and the assignees seek to recover it—or it may be held by the assignees, and the bankrupt disputes his bankruptcy—or it may have been unlawfully taken in execution, and that process is impeached on one of many different grounds of fraud; or it may have been misdelivered by a warehouseman or carrier. So the same words in a plea may cover as many different defences as the words in a declaration cover causes of action. The Bill now before us sweeps away all this useless and worse than useless lumber which keeps the desired information from both parties and the Court; it requires the very claim with its grounds to be plainly stated; the very answer with its grounds to be plainly given. It likewise abrogates that rule which at law, though not in equity, prevails, contrary to all natural reason, that no one shall deny the relevancy of his adversary's statement without admitting its truth; giving power both to traverse and demur. It further abrogates the generally unreasonable rule against replying, or rejoining several matters, giving power to plead as many pleas in each stage as the parties can verify. The great benefit of this change I need hardly dwell upon, in the death blow which is thus given to so much confusion, uncertainty, useless subtilty, worse than useless chicanery, all at the expense of time and labour to the Court, delay, vexation, and expense to the suitor; but it gives me no little satisfaction to think that here the provisions of the Bill have the sanction of the learned Commissioners. For although the English Act of last year did not abolish the forms of action, it left them little more than a nominal existence, when the 41st section distinctly allowed different causes of action, however various, except only replevin and ejectment, to be included in one. Indeed the Commissioners had reported in favour of an entire abolition, and had originally so framed the Bill, which your Lordships altered, conceiving that as drawn it would not work.
Respecting one provision of the present Bill under the head of pleading, I have considerable doubts. The summons or writ, and plaint or declaration, are proposed to be one, and so the appearance and defence or plea, are to-be one—that is, there must only be one proceeding both by the plaintiff and defendant. I rather agree with the Commissioners, who considered that this junction would have the effect of making a plaint, or plea necessary in cases where the writ or summons, and the appearance might

803
suffice. This, however, is fit to be considered in the Committee, and I do not profess to have formed a very confident opinion upon the subject.
The trial is now to proceed, and here the Bill introduces that most salutary change which I submitted to your Lordships in the Evidence and Procedure Bill, and which afterwards had the entire concurrence of the Commissioners, though my noble and learned Friends in this House opposed it—I mean the enabling parties in all cases to try by the judge without a jury, provided both consent. The only doubt which I have on this important head, is whether, at least in the beginning, we should not confine this option to cases of contract and quasi contract. That ultimately the option should be universal, I do not doubt; but possibly there are reasons why in the first instance cases of tort should be excluded.
Upon that which next comes to be considered, the Evidence, there are several useful improvements in the Bill. One on which I set great value is, the general power given to compel the production of documents, which by an error in our English Act has been found to be cramped by the requiring knowledge of possession to be proved. Here one could have wished that the salutary rule in the Scotch Courts had been adopted, the want of which we so often experience in ours—the requiring previous notice to be given of all documents before they can be used in evidence, unless their recent discovery be shown. No one can have long practised at Nisi Prius without being aware how such a rule would tend to prevent vexatious suits, pertinacious defences, and professional manœuvres. An example may suffice of the latter. The plaintiff had proved his case; the defendant's counsel had not put a single question in cross-examination. Then said the Judge, "Of course you have no case, and the plaintiff must have a verdict." No, said I, it must be the defendant who has the verdict; and I produced the receipt, which his attorney had thought fit to keep back, which must have kept the cause out of court by the Scotch rule, and which would also have prevented the professional gentleman from pocketing his costs. The dishonesty of the plaintiff, if he did not act from entire mistake, certainly deprived him of all right to complain.
Connected with this head I could also have wished that in the most important part of the Bill, the granting equitable procedure to Common Law Courts, a power of dis-
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covery had been more extensively given, in order to preclude the necessity of parties going from one Court to another, or from one action to another for their remedy. But it contains other most salutary provisions which have this object in view. Thus, nothing can be more absurd than only giving the plaintiff in ejectment his full remedy by two actions. He obtains verdict, judgment, writ of possession, in one; he must bring another for the mesne profits, to which his success in the first entitled him. The Bill most properly enables him to recover both the possession and the mesne profits by the same suit. So when a person complains at law of an infringement of his patent, or of any other tort which gives him a right to recover damages, he cannot stop the acts of the wrong doer without going into a Court of Equity. The Bill, in all cases of disputed right, where a Court of Equity would grant an injunction, arms the Courts of Law with the power of staying the exercise of the right of the defendant, pending the proceeding, to ascertain it. But this is not the only instance in which the principle of fusion is adopted by the Bill. It makes choses in action generally assignable, allowing the assignee to sue in his own name without resorting to equity; but it provides of course the necessary guards to this right, and among others establishes a Registry of Assignments. It further abolishes the vexatious rule that an equitable interest, as an agreement for a lease, cannot be used at law in bar of an ejectment; and that other vexatious rule which makes an outstanding legal estate a competent defence in such case. The former of these amendments has, I understand, for many years been introduced into the procedure under the Civil Bill jurisdiction, an equitable lease being there a bar to ejectment.
But now let us return to the action, which we have been following through its successive stages; and we are brought to the result, judgment and execution. This Bill contains several salutary provisions, both on this head and on proceedings in error. But I shall only detain your Lordships by stating the improvement which it propounds upon the process of execution. To be sure, the law a few years ago did exceed itself in absurd distinctions and refinements under this head. At the period to which I have more than once referred, in 1828, when a creditor had obtained judgment, he could only have the fruits of it in case his debtor possessed real property, or personalty im-

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possible to be concealed; and he might openly be possessed of any amount in stock, bonds, bills, bank notes, nay, in moneys numbered, and the execution could not touch a farthing of it. The very cash which he had borrowed, and for which he had been sued and found liable to repay it, might be lying on his table when the sheriff entered, and that officer touched it at his peril. Lord Mansfield inclined to relax this rule, so far as money was concerned, but he could not; one Judge held that it would be removing landmarks; another (Lord Ellen-borough), that it would be unsettling the fundamental principles of our jurisprudence. The greater part of this absurdity has for some years ceased to disfigure that system. Since 1833 in England, since 1840 in Ireland, money and bank notes may be taken in execution; but still the process is most imperfect; as regards bonds, bills, stock, shares, annuities, a suit is required. This Bill provides for the immediate transfer of the property; for the plaintiff's action in the sheriff's name on bonds and bills; for the attachment of stock and shares, so as to be a stop on any transfer by the debtor; and finally for the beneficial possession by the creditor, in case the debt be not paid forthwith.
I am sensible, my Lords, of the imperfect manner in which I have aimed at doing justice to this important measure. I have barely given an outline of those portions which are in advance of our English procedure law; nor have I by any means even recited the whole of these improvements. The Bill was brought up from the Commons a week ago, and I have not had it more than a day or two in my hands. A hundred and forty of its clauses are taken from our Act, but with considerable variations; some of them necessary for adapting them to Ireland, and others improving upon those provisions. A hundred and twenty are almost entirely new; and to these I am more especially anxious that the attention of this country should be directed. But the most important of them are not now propounded for the first time. How long ago do your Lordships think was the greatest of these changes in the law attempted—the making choses in action assignable? Just within one year of two centuries. This rational course was proposed by a Committee of the other House, on which sat men renowned in history; some illustrious for their great deeds alone, others for their virtues also. Among its members we find named the Lord General Cromwell, then representing
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the town of Cambridge, and Sir Matthew Hale, afterwards the great Chief Justice. This proposition was the eleventh of the fourteen for the amendment of the law, which that Committee reported to the House; and most gratifying is it to think that all the others have since become the law of the land; brought forward though they thus had been at no very auspicious season. It bears out that most consolatory remark of Lord Bacon, which has so often cheered one under temporary disappointment, that hardly ever was there a good proposal made for amending the law, which did not sooner or later bear fruit. Earnest as my desire is to carry the whole of these improvements this Session, being quite certain that, if effected for Ireland, they must immediately be adopted here; I yet cannot but admit that the absence of the Judges on circuit, and of the Chief Justice, as well as Lord Truro, and other law Lords from this House, makes it difficult to proceed now with the whole of the Bill. We may, however, at any rate pass all the provisions which have already been enacted for England, with the changes necessary for adapting them to Ireland, and with such of the other improvements upon our procedure as cannot well admit of controversy. All that is necessary now to do, is to give the Bill a second reading, and in the Committee we can settle what portion shall be postponed.
Moved—"That the Bill be now read 2a."
The LORD CHANCELLORwas sure that his noble and learned Friend had bestowed, on this occasion, another obligation in addition to those which their Lordships and the country already owed to him, for his efforts in the cause of legal reform. He concurred with his noble and learned Friend that this Bill was an immense improvement on the judicial system of Ireland, and in many respects, indeed, on the judicial system of both countries. It should be their object, and so long as he had the honour to be connected with the administration of the law it should be his object, to render simple and cheap the administration of justice, and to make it accessible to all; or rather, to adopt an illustration that had been used, to open the door wide to all that ought to be admitted, and to render admissions difficult only to those who ought not to be allowed to enter. The Bill on this subject passed last year in pursuance of the Report of the Commissioners had worked admirably well, and he attributed the satisfactory working of it to the immense labour bestowed upon it by

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the Commissioners and Judges, and afterwards by that House—the consequence being that there was not a clause that had not been well considered, and the result was that although the Act contained 300 clauses, there had not arisen thirty questions concerning them in any of the Courts. He had no hesitation in saying that it was the bounden duty of the House instantly to give to Ireland the benefit of that which had been already matured and well considered and in operation in this country; and so far as that, no exertion of his should be wanting to have it done in the present Session of Parliament, even if they should be obliged to protract the Session for that purpose. He understood, however, from his noble and learned Friend, and also from the Attorney General, that what had been in operation in this country constituted only one half, or rather more than one half, of the present measure; and with regard to the other half of the Bill it was yet to be introduced in reference to this country. The Common Law Commissioners had made a second Report, suggesting most useful improvements to be carried into effect by further legislation. Their Lordships would recollect that he had already stated that on getting that Report he had immediately given directions to embody its provisions in the form of a second Bill for the further improvement of the common law. He had received the draft of the Bill embodying the recommendations of the Commissioners in the form of an Act of Parliament; but on conferring with his noble and learned Friend the Lord Chief Justice, and other noble Lords, they were of opinion that more attention should be given to the measure than could be devoted to it during the short period of the Session that remained; and under the circumstances it was the common feeling of every one he had consulted, that it would be impossible to attempt to embody in a Bill these recommendations, however useful the measure might be, in the present Session of Parliament. In truth, he believed that such a measure could not be brought to the perfection which was desirable unless he and the Judges had the opportunity of considering it in the long vacation. He thought, therefore, that the fair course towards Ireland would be to pass during the present Session so much of this Bill as was substantially the same as that which had been already tried in England; that was, with such alterations and improvements as were of undoubted
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utility. But with respect to further changes, which he believed would be most useful, such as the introduction of equitable defences to actions, a more extensive application of injunctions, an assignment of choses in action, in some cases where the right of action arose on a written instrument, he believed that not only might they be introduced into operation, but that it would be a discredit to us if they were not introduced as quickly as was consistent with sound and safe legislation. With regard to the retention of forms of action, which had been adverted to by his noble and learned Friend, he had to observe that the only reason why so much of them had been retained was, because it was thought that if parties were left to tell their own story in writing in their own way, they would wrap it up in such a mass of words and irrelevant matter, that much greater embarrassment would be caused than by the use of the present simple forms. He thought that the House should, in justice to Ireland, make a point of passing the portions of the Bill to which he had referred, even if they sat till October for the purpose.
On Question, agreed to; Bill read 2a accordingly.
House adjourned to Thursday next.