The Sun.
London, England, 1861-07-19 00:00:00

BILL.

Earl DE GREY and RIPON moved the second reading
of this bill, the object of which was to unite the chief
courts of judicature in Calcutta, Madras, and Bom-
bay into one court, with power to deal with all
the subjects coming under the consideration of the
old tribunals. The effect of amalgamation would
be to improve the administration of justice in
India, and the scheme had received the approbation of
the most eminent men in India, and amongst them Sir
Edward Ryan and Sir T. Halliday. By the bill then under
consideration the Supreme Court and the Suddar Court
would be abolished, and instead thereof a new court to be
called the nigh Court of Judicature would be established
as the old Supreme Court had been, namely, by Royal
Charter, and the qualification of the judges would remain
the same as at present, namely, that they should have been
barristers of five years' standing.
Lord BROUGHAM said the bill was a most impor-
tant one, and therefore claimed their most serious consi-
deration. The sixth clause gave the power to the Indian
Government to interfere with the salaries of
the judges, and he thought such a proposition
was most objectionable. It was an entirely novel propo-
sition, and one which he most strongly objected to.
_ _ _

Earl DE GREY said the clause did not affect the exist-
ing judges; it only applied to those who might here-
after be appointed. He would however take care
that the objections of the noble and learned lord were well
considered.
The Earl of ELLENBOROUGH thought the bill had
better be referred to a select committee, as at present it
was a most objectionable one. It would be absurd to send
the judges of the proposed high court into the Mofussel, as
they would most likely be ignorant of the language of the
natives. They had the authority of Mountstewart Elphin-
stone against the amalgamation of the two courts. He asked
what would be thought if it were proposed to amalgamate
the courts of England and Scotland ? The object of the bill
he considered to be to give patronage to the Government
by the appointment of a large number of barristers to office,
every one of whom would have £5,000 a year. There was
a principle introduced into this bill which had not been at-
tempted since Fox's bill, of throwing all the patronage in
India into the hands of the Home Government. He found
by a calculation that this bill would cost the country
£262,000 per annum.
The Marquis of CLANRICARDE was very thankful to
the right hon. gentleman the Secretary of State for India
for bringing forward this bill, and he hoped that it would
pass with some slight modifications. He objected to the
clause which enacted that at least one-third of the judges of
the courts of justice of India must be members of the civil
service. He contended that such a proceeding was most
unconstitutional, because, no matter what the qualities of
persons at the disposal of the Governor-General for these
situations, he could not appoint any one unless he belonged
to that service. The bill therefore debarred in the first in-
stance all the natives of India, and in the next a largo num-
ber of the bar of England, to the great detriment of the pub-
lic service. If they left the clause as it stood, there was no
doubt whatever that men of the least judicial ability would
be appointed as judges. Ho also complained of the clause
which provided for the removal of the chief justice at the
pleasure of the Crown, which he contended destroyed the
independence and impartiality of the occupant of that high
office. The great complaint in India heretofore was, that
judges were so dependent on the Government that all their
decisions were in conformity with their views, and instances
occurred where, on appeal to the Privy Council in Eng-
land, the judgments of many of them were set aside, as
not only illegal, but unjust. He quoted several instances
where the opinions of these functionaries were founded
upon the known views of the Government, and he therefore
deeply regretted that so high a functionary as the Chief
Judge should not be made independent of the Crown and of
the Government of India.
Earl DE RIPON and RIPON denied the assertion made
by the noble earl (Earl of Ellenborough) that the diffeyent
courts in India were to be concentrated into one court. It
would be done only in cases where it was not only practic-
able, but absolutely necessary. As to the number of judges,
he denied that it was done for the purpose of enabling Go-
vernment to send out 40 barristers to India, for the clause
merely said that two-thirds of the judges should be barris-
ters, and one-third connected with the civil service. There
was not the slightest intention on the part of her Majesty's
Government to provide any patronage whatever ; the num-
ber to be appointed was absolutely necessary to administer,
be it recollected, justice throughout the whole of their vast
Indian empire.
The Earl of ELLENBOROUGH said a few words in
explanation. He complained that the present Chief Justice
was the person to whom was given the power of distributing
all these offices, and contended that it would be found ut-
terly impracticable to unite the Sudder and Supreme Courts
in India.

The Bishop of LONDON said the bill would abolish the
Ecclesiastical Court of Appeal, and he thought that por-
tion of the bill ought to be remedied. (Hear.)
The LORD CHANCELLOR said it would to a matter
of deep regret if anything were to occur in the course of the
debate which would be an impediment in the progress of a
bill, the passing of which he thought would distinguish
this session, as discharging one of the greatest obligations
they owed to the people of India. He had since he had
had the honour of a seat in that house listened on several
occasions with the pleasure and the admiration that all
must feel to the speeches of the noble earl on his left (Earl
of Ellenborough) ; but he must confess that the speech
they had just heard from the noble earl was not charac-
terised by so much candour, and he would even, with great
respect, add with so much knowledge as he had generally
found during his short experience in the speeches of the
noble earl. The noble earl spoke of the Supreme Court of
these presidencies as if it had not now to administer native
law• Why, the Supreme Court had an area of jurisdiction,
within which area came the great towns Of Calcutta, Madras,
and Bombay ; and within that area the judges of the Su-
preme Court administered, not merely the English, but
native law, when native law came into question. And yet
one of the Principal topics of the noble earl's speech had been
theignorance of the English barristers, and their unfitness to
administer native law with satisfaction. Well, at present they
had for the administration otustice in India' the Supreme
Court within each presidency, Beyond that there was a local
jurisdiction, which he might generally
into districts with each of them a judge describe as divided
; and
from
was at once a
judge in civil and criminal matters,
with
haveith
these judges
andat
there was an appeal to the Sadder Adawlut,m
de-
ference to the noble earl, although that court
theory some original jurisdiction, in practice it was confined
entirely to the appellate. The result was that with reward
to the natives beyond the limits of the towns, there was no
Supreme Court; and with regard to the natives within the
limits of the towns, there was fraother Supreme Court to
administer the law. With regard to British subjects, if
they were within the presidency towns they were amenable
to the jurisdiction, but if they were in the Mofussil they
were subject to no jurisdiction beyond that which was
created by the 53d George 111. The result was that there
was an unjust and unseemly division between the natives
on one side and the Europeans on another. Was there any
better hold they could have on the natives of India than
by an elevated impartiality and pure administration of
justice ? And how could they, where there was one law
and one mode of administration for Europeans, and ano-
ther law and another administration for natives, prevent a
feeling of injustice and inequality ? " But, then," said
the noble earl, " how comes it that you are going to send
barristers of five years' standing, with all the depth of their
Ignorance, into the Mofussil to administer the law ?" Why,
the noble earl knew as well as he did that judges in India,
and ho might cite the celebrated example of Sir W. Jones,
had been distinguished for the assiduity with which they
had cultivated the knowledge of the native law, and the im-
partiality and skill with which they had administered it. In
speaking of barristers of five years' standing, the noble earl
would permit him to remind him that that was put as a mi •
nitilutn qualification, and not the maximum ; and he would
observe that an English barrister of five years' standing
might have had a great amount of practical experience in
his profession. He might point, for instance, to the late Mr.
Justice Patteson, who practised below the bar and laid the
foundation of his reputation and acquired a great amount
of knowledge in that capacity, so that when he was elevated
to the English bench, he was barrister but of very few years'
standing, It would be an unwise thing, therefore, to re-
quire such a number of years that a banister must be called
to the bar as might preclude their being able to select the
fittest men for the office. But then it was said, how were
they to administer the taw ? Ho ti 1 t d that there were
a certain number of covenantedsernri-anertss°and a cot Min num-
ber of natives who could be made judges, and the mode in
which it was provided that they
should administer the law
was this. There would be a commission issued, and judges
would be sent to different parts of the Mofussil, some-
times, perhaps, an European juk..o,
sometimes a na-
and sometimes a civil servant, according
6
tive judge,
to the exigencies of the case. The noble earl drew an ex-
aggerated picture of the good things intended for the bar,
quite sure atement would
the noble earl's t
but he was
make the mouth of many a barrister in the Four Courts,
in
the cettzt of seiaiwei sad in Westminster-11411 PAW, whim

they read of the good things in store for them. The noble
earl spoke of these judges having £5,000 a year, and of hav-
ing £2,500 when they went on circuit. Now at present there
were five judges in each Sadder Adawlut, and there were
three judges in each supreme court. That would make eight
in each presidency, but he had yet to learn that each judge in
the Sudder Adawlut received £5,000 a year, and he did not
find anything in this bill imposing any obligation to aug-
ment the salaries. On the contrary, the Government had
studiously avoided entering into any such obligation. But
he did net think that that was the mode in which a great
question of this kind ought to be considered. They were pro-
viding for the administration of justice among many mil-
lions of the people, and they should be prepared to create the
number of judges which would be required by the exigen-
cies of the case, but, he admitted, not beyond the exigen-
cies of the case. It was said by the noble earl that a gen-
tleman of great ability and deserved reputation gave an
opinion some years ago that it would not be desirable to at-
tempt to amalgamate the mode of administration of Eng-
lish and native law. But there was a cessor of the reason,
and therefore there ought to be a cessor of the opinion. Mr.
Elphinstone was represented to have said—" I should be
sorry to carry the administration of justice in English hands
into the Mofussil, because they would take with them the
technicality of the English system." He entirely agreed
with Mr. Elphinstone, and especially if English special
pleading as it existed was to follow the administration of
English justice ; but the noble earl forgot that the Go-
vernment did not bring forward this bill until they had
previously prepared the way by the preparation of a simple
code both for civil and criminal cases—a code which they
had already tried and found to be satisfactory—a code
which combined, ho was happy to say, cheapness and ex-
pedition as well as the means of simplifying the adminis-
tration of justice. He thought, therefore, that to send
judges with such a code to the Mofussil, was a proce-
dure at once consistent with their duty, and with every-
thing that ought to be observed in directing the mode
of the administration of justice. He was particularly de-
sirous that this should be done, because he thought that
the native law under this administration would be deve-
loped in a manner consistent with the more enlarged expe-
rience and advanced state of English jurisprudence. There
were a great variety of occasions in which, without altering
the native law with regard to rights of property, yet with
respect to contracts and mercantile cases, that law had yet
to be settled. The noble marquis asked why should judges
be removed at the pleasure of the Crown. It was the law,
and he thought it was a wise law with respect to colonial
judges, that when a complaint was made against a judge
the matter was brought before the Privy Council, and the
opportunity was afforded him of being heard in his de-
fence. The procedure corresponded as near as possible
to that which related to English judges, who could not be
removed without an address from both houses of Parlia-

went, With regard to the matter referred to by the right

rev, prelate, it was a mistake to suppose that these courts
had any spiritual jurisdiction. It was testamentary juris-
diction which was referred, and had no reference to bishops
and the clergy ; but in order to prevent any mistake he
should propose to strike out the word " ecclesiastical," and
insert " testamentary." He had to apologise for having
occupied the time of their lordships so long, but he
thought it necessary to make these explanations of the
bill. (The noble and learned lord resumed his seat amid
loud cheers from all parts of the house.)

The bill was then read a second time.
INDIA CIVIL SERVICE BILL.

Earl DE GREY and RIPON, in moving the second
reading of this bill, said its object was to legalise certain
appointments whose legality was hitherto doubtful under
the present state of the law. No one would wish that mili-
tary men should be prevented from holding offices in the
civil service, or to see natives excluded from their fair share
of patronage. He had for his own part to express his high
admiration for the manner in which the civil service of India
had been hitherto performed, because it not only conferred
honour on the parties themselves, but on their country.
In the present bill there was a schedule of offices to which
the Governor-General might make appointments for civil
services, but they would not be confirmed until they re-
ceived the approbation of the Secretary of State for India.
The bill in its present shape had received the approval of not
only the Government, but of the other house of Parliament,
and every one at all acquainted with India.
The Earl of ELLENBOROUGH opposed the bill because
it was contrary to Parliamentary rights, and he had some
doubts whether it could be carried into effect in an efficient
manner. If it had the effect—as he believed it would have
—of lowering the qualifications of candidates for the public
service in India, it would indeed be productive of great mis-
chief. In his opinion there would be no security whatever
for appointments, especially in the North-Western Pro-
vinces, and he feared that those persons who may hereafter
be engaged in the public service would be found much infe-
rior to the men who ruled the destinies of that country with
so much honour to themselves and benefit to India.

Lord LYVEDEN was also opposed to the bill in many
of its details, especially the schedule and the second clause,
because an undue advantage was given to the covenanted
over the uncovenanted service.

The Duke of ARGYLL said the bill was objected to on
two distinct, though opposite grounds. The noble earl op-
posite was opposed to it because he thought it threw the
civil service in India open in a manner which must be most
injurious ; whereas his noble friend behind him held that it
was still too close. In his opinion, the measure was entirely
free from either objection, and only provided the best means
for placing it in the most efficient and advantageous posi-
tion for the wants of the country.
The Marquis of CLANRICARDE thought it would be
absurd to suppose that the covenanted service of India
could be able to fill all the offices in the public service of
that country.
The bill was then read a second time.

The Earl of DERBY said that it would probably be for
the public convenience if the noble earl could state on what
day the committee on these bills would be taken, as there
was a great deal of business before the house. The second
of the two bills he thought would be far more conveniently
dealt with in a select committee of their lordships' house,
but that course would expose it to the risk of being lost al-
together. At the same time there were several details which
required consideration and possible amendment, and he
therefore thought it would be highly desirable if the noble
earl could fix a day when the bill might be discussed at an
hour of the evening when the attendance of their lordships
was not confined, as it was at present, to some seven or
eight noble lords on the Government sido of the house, and
some two or three on the other.

Earl GRANVILLE at first fixed Tuesday for one com-
mittee and Thursday for the other, but ultimately Tuesday
(as we understood) was fixed for both the committees.

The County Voters (Scotland) Bill, the Turnpike Trusts
Arrangement Bill, the White Herring Fishery (Scotland)
Bill, and the Vaccination Bill were read a second time.
The Chatham Dockyard Extension Bill and the London
Coal and Wine Dues Continuance Bill were read a third
time and passed.
The Commons' amendments to the Queensland Govern-
ment Bill were considered and agreed to.