The Sun.
London, England, 1827-02-02 00:00:00

130318 AY.

(From the Oriental Herald, for February 1827.)
SUPREME COURT, JULY 10, 1826.
The following proposed Regulation was read by the Clerk of the
Crown :

RULE, ORDINANCE, AND REGULATION I. of 1826.
A Rule, Ordinance, and Regulation, for the good order and
civil government of the Presidency of Bombay, passed by
the Honourable the Governer in Council of Bombay, the
14th day of June, in the year of our Lord 1826, and re-
gistered in the Supreme Court of Judicature at Bombay,
under date the day of 1826.
Preanibte.--.Wsizazas a rule, ordinance, and regulation, was
passed in the year 1823, by the Honourable the Governer-General
in Council, of and for the presidency of Fort William, in Bengal,
with the consent and approbation of his Majesty's Supreme Court
of Judicature at the aforesaid presidency, for the prevention of the
printing and circulating in newspapers, and other papers pub-
lished at the aforesaid presidency, matters tending to bring the
Government of this country, as by law established, into hatred
and contempt, and to disturb the peace, harmony, and goud order
of society; which said rule, ordinance and regulation, after an ap-
peal against the same having been on solemn deliberation disal-
lowed by the King's most excellent Majesty in Council, still re-
mains in full force. And whereas, with a view to prevent the
printing and circulation of such matters, as aforesaid, within the
presidency of Bombay, it is deemed expedient to regulate by
law the printing and publication within such presidency of news-
papers, and of all magazines, registers, pamphlets, and ether
printed books and papers, in any language or character, pub-
lished periodically, containing or purporting to contain, public
news and intelligence, or strictures on the acts, measures, and
proceedings of Government, or any political events or transac-
tions whatsoever.
" I. Be it, therefore, ordained by the authority of the Hon.
the Governor in Council of and for the presidency in Bombay,
by, and in virtue of, and under the authority of a certain Act of
Parliament, made and passed in the forty-seventh year of the reign
of his late Majesty King George the Third, entitled, " An Act
for the better settlement of the Forts of St. George and Bombay,"
that fourteen days after the registry and publication of this rule,
ordinance, and regulation, in the Supreme Court of Judicature at
Bombay, with the consent and approbation of the said Supreme
Court, if the said Supreme Court shall, in its discretion, approve
of, and consent to, the registry and publication of the same, no
person or, persons shall, within the said presidency of Bombay,
print or publish, or cause to be printed or published, any news-
paper or magazine, register, pamphlet, or other printed book or
paper whatsoever, in any language or character whatsoever, pub-
lished, periodically, containing, or purporting to contain, public
news or intelligence, or strictures on the acts, measures, and pro-
ceedings of Government, or any particular events or transactions
whatsoever, without having obtained a licence for that purpose,
from the Governor in Council, signed by the Chief Secretary of
Government for the time being, or other person acting and offi-
ciating as such Chief Secretary.
" 11. And be it further ordained, by the authority aforesaid,
that every person applying to the Governor in Council for such
licence, shall in all particulars conform, or have conformed, to
the provisions ordained by the rule, ordinance, and regulation I.
of 1825, in regard to the making, signing, and delivering of
affidavits as therein prescribed, under the penalties therein ordained
in default thereof.
" 111. And be it further ordained, by the authority aforesaid,
that every licence which shall and may be granted in manner and
form aforesaid, shall and may be resumed, and recalled by the Go-
vernor in Council; and from and immediately after notice in
writing of such recall, signed by the said Chief Secretary, or other
person acting and officiating as such, shall have been given to
the person or persons to whom the said licence or licences shall
have been granted, such notice to be left at ancluslam tskia.tsgus,..
tioned in the affidavit last delivered, according to rule, ordinance,
and regulation I. of 1825, as the place at which the nertspaper,
magazine, register, pamphlet, or other printed book or paper, to
which such notice shall relate, is printed, the said licence or
licences shall be considered null and void, and the newspapers,
magazines, registers, pamphlets, printed books or papers to which
such licence or licences relate, shall be taken and considered as
printed and published without licence; and whenever any such
licence, as aforesaid, shall be revoked and recalled, notice of such
revocation and recall shall be forthwith given in some one of the
newspapers, for the time being published in Bombay.
" IV. And be it further ordained, by the authority aforesaid,
that if any person within the said presidency of Bombay, shall
knowingly and wilfully print or publish, or cause to be printed or
published, or shall knowingly and wilfully, either as a proprietor
thereof, or as agent or servant of such proprietor, or otherwise,
sell, vend, or deliver out, distribute or dispose of, or if any book-
seller or proprietor, or keeper of any reading room, library, shop,
or place of public resort, shall knowingly and wilfully receive,
lend, give, or supply, for the purpose of perusal or otherwise, to
any person whatsoever, any such newspaper, magazine, register,
or pamphlet, or other printed book or paper as aforesaid, such
licence as is required by this rule, ordinance, and regulation, not
having been first obtained, or after such licence, if previously ob-
tained, shall have been recalled as aforesaid, such persons shall
forfeit for every offence a sum not exceeding four hundred rupees.
" V. And be it further ordained, by the authority aforesaid,
that all offences committed, and all pecuniary forfeitures and penal-
ties had or incurred tinder or against this rule, ordinance, and regu-
lation, shall and may be heard, and adjudged and determined by
two or more justices of the peace, acting in and for the presidency
of Bombay, who are hereby empowered and authorized to hear
and determine the same, and to issue their summons or warrant
for bringing the party or parties complained of before them, and
upon his or their appearance, or contempt and default, to hear
the parties, examine witnesses, and to give judgment or sentence
according as in and by this rule, ordinance, and regulation; is
ordained and .directed, and to award and issue out warrants, under
their hands and seals, for the paying of such forfeitures and penal-
ties as may be imposed upon the goods and chattels of the
offender, and cause sale to be made of the goods and chattels if
they shall not be redeemed within six days, rendering to the party
the overplus, if any be, after deducting the amount of such for-
feiture or penalty, and costs and charges attending the levying
thereof ; and in case sufficient distress shall not be found, and
such forfeitures and penalties shall be forthwith paid, it shall and
may he lawful for such justices of the peace, and they are hereby
authorized and required, by warrant or warrants, under their
hands and seals, to cause such offender or offenders to be com-
tnitted to the common jail of Bombay, there to remain for any
time not exceeding four months, unless such forfeitures and penal-
ties and all reasonable charges, shall be sooner paid and satisfied;
and that all the said forfeitures, when paid or levied, shall be from
time to time paid to the treasury of the United Company of Mer-
chants of England trading to the East Indies, and be employed
and disposed of according to the order and directions of his Ma-
jesty's said justices of the peace, at their general quarter or other
sessions.

" Provided always, and be it further ordained by the authority
aforesaid, that nothing in this rule, ordinance, and regulation con-
tained, shall be deemed or taken to extend or apply to any printed
book or paper containing only shipping intelligence, advertiaements
of sales, current prices of commodities, rates of exchange, or
other intelligence solely of a commercial nature.
(A true copy)
" C. GRANT, (Signed) "D. GRIPNHILL,
Clerk of the Crown." Acting Secretary to Government."
Judgment of the Chief Justice Sir EDWARD WEST.
Before I consider the proposed regulation, I shall state what I
conceive to he the duty of the Court on these occasions where re-
gulations are passed by the local Government, and by them trans-
mitted to the Court for registration under the statue.
By the 13th Geo. 111. c. 63, see. 36, it is enacted,
" That it shall and may be lawful for the Governor-General
and Council of the said United Company's settlement at Fort-Wil-
liam, at Bengal, from time to time, to make and issue such rules,
ordinances and regulations, for the good order and ciril govern-
ment of the said United Company's settlement at Fort-William
aforesaid, and other factories and places subordinate, or to be sub-
ordinate thereto, as shall be deemed just and reasonable, (such
rules, ordinances, and regulations, not being repugnant to the
limes of the realm,) and to set, impose, inflict, and levy reasonable
flues and forfeitures for the breach or non-observance of such rules,
ordinances, and regulations ; but, nevertheless, the same, or any
of them, shall not be valid, or of any force or effect, until the

same stall
le said. Suprerol
Court of Jt ew charter esta
hlished, wi . the said Com-t,
which registry shall not be made until the expiration of 20 days
after the same shall be openly published, and a copy thereof affix&
in some conspicuous pact of the Court-house, or place where the
said Supreme Court shall beleld ; and from and immediate!)
after such registry as aforesaid, the same shall be good and valid
in law."

This provision is extended to the settlement of Bombay by the
47 Geo. 111. Bess. 2, C. 68, sec. 1.
It is to be observed, that this provision requires, in the first
place, that such regulations are not to be repugnant to the laws of
the realm ; and
2d, That they shall not be valid, or of any force or effect, un-
til the same shall be duly registered and published in the &Trains
Court, with the consent and approbation of the said Court.
Upon this provision, various constructions hare been put.
First, it has been stated, on the authority of a late learned
Judge of the Supreme Court of Madras, who presided in. thi Re-
corder's Court here for a short period, Sir George Cooper, .9‘ that
the Court, except in cases where some gross and glaring: nfringe-
!pent of the liberty of the subject is apparent on the face °fahe rule,
have nothing to do with the legality of it, but that the Government
is to decide on the fitness, justice, and reasonahlenessof it, and that
it is for them to see and take care that it is not repugnant to the
laws of the realm."
This supposed judgment of the Learned Judge was publish-
ed in the Government papers of the 12th April, 11323,. and is
as follows:
" The power of framing rules, ordinances, and regulations, is
placed in the Governor-General, and Goverriors in Council re-
spectively, at each Presidency. They, the Governors eforesaid,
are to decide on the fitness, justice, and reasonableness of the same,
and it is for them to see and take care that such rules, ordinances,
and regulations, are not repugnant to the laws of the realm. That
the terms, consent and approbation, referred to publication and
registry only, and were used because it would be too 'ranch to
suppose that any thing could be hung up and .registered in that
Court without its permission. That such publiratiow and regis-
try did not give them any additional weight in p'-iat of law, ko
if the Government made regulations which were repugnant to the
laws of the realm, it was perfectly competent to that Court to de-
cide against their legality in any issue there depending; in feet,
that the publication and registry in the Court of Recorder was
nothing more than a declaration of the Court's knowledge of their
existence, but did not prevent its affording relief when called upon
to do so afterwards, should the circumstances of the case seem to
warrant an interference. That the Court had, no doubt, the power
of refusing to publish and register, but that it would only do so
when some gross and glaring infringement of the liberty of the sub-
ject, arbitrary imprisonment, for instance, or something immoral,
was apparent on the face of the rule sent for registry."
In the first place, were such the true construction of theelause,
what is the meaning ef the term approbation ? In the next place,
the learned Judge. is made to say, " that such publication and re-
gistry did not give the regulations any additional weight in
point of law ; for if the Government made regulations which
were repugnant to the laws of the realm, it was perfectly
competent to the Court to deeide against their legality in any
issue there depending." But what says the statttitt itself ?
" that the same shall not be valid, or of any force or effects
until they shall be registered ; and that from and imritediately
after such registry as aforesaid, the came shall be good and
valid in law." Besides, could any thing be more mischievosv
than that regulations should be passed and registered whirls
the °facets of the Government and others are to enforce, and
which, were an action to be brought against them for such en •
forcement, might be declared to be illegal, and, consequently, no
justification to them ? It is clear that the proper constriction of
the act is, that the Court is to take care, in the first instance,
before the mks are registered, that they art not repugnant to
the laws of the realm, end that, as soon as registered,' they
shall be good and valid in law, unless disallowed by his
as provided by the act.
2d. It may be, and indeed has been said, that under thief
provision of the Legislature, the Court has only a judicial,
but not a legislative power,—that it is to consider the legality,
but not the expediency, of regulations proposed by the Government.
In the first place, however, such conetrnction is opposed to the
words of the statute, " that the regulations, shall not be valid till
they shall be duly registered with the consent and approbation of
the Court;" the word " approbation " is unrestricted and unqua-
lified, and I do not understand how we can restrict and qualify the
term by construing it to mean approbation merely in point of law.
Had the legislature intended this, how easy would it have been to
have said such regulations not to be registered by the Court in cast:
they shall consider them to be repugnant to the laws of the realm.
In the next place, in all the proceedings upon the appeal of Mr,
'Boclyingharn, to the King in Council, against the regulation passed
at Calcutta, it is taken for granted that the Court arc bound to
consider, and did actually consider, ito expediency. Thus, a part
of the second reason advanced by the Court of Directors of the
East India Company in support of the regulation is as follows :
" That the restrictions imposed by the rule, ordinance, and regu-
lation, which is the subject of appeal, were called for by the state
of affairs in the settlements of Bengal, and were adapted to the
exigency of the case; and that they were not injurious to his Ma-
jesty's subjects in the said settlement, is to he inferred from the
concurrent judgment of the Supreme Government of the East
India Company, and of the Supreme Court of his Majesty."
The Court of Directors therefore assume, that the Supreme Comt
did exercise their judgment upon the expediency and necessity of
the regulation, and did consider that it was called for by the state
of affairs and the exigency of the cage. Mr. Serjeant Bosanquet
also, in his argument as Counsel for the Court of Directors, takes
it tbr granted that the Court did exercise such judgment. "It
is," says he,* "for your Lordships' wisdom to determine whether
in this case your Lordships do or do not agree in thinking that
necessary and expedient which the local Government has found to
be necessary, which the Court established by his Majesty for
protecting the rights of his sect jests, and which is not the Court
of the East India Company, has thought expedient, and has
adopted and registered in these regulations r'
Nor did the Counsel on the opposite side, who impugned the
regulation, ever contend that the Court had no right to exercise a
judgment as to its expediency; to them, insisting, as they did, that
the preamble to the regulation which recited the existing evils bad
not been proved, it would have been a strong argument, that the
Supreme Court had exercised no judgment upon that point. They,
however, did not touch upon such argument, and evidently be-
cause it was untenable.

In many cases, too, it is impossible to separate the question of
legality from that of expediency. In many eases, expedienc' may
make that not repugnant to the laws of the realm, which, without
such expediency, would clearly be so repugnant ; I would instance
the suspension of the Habeas Corpus Act. Would any one con-
tend that such suspension would not be most unconstitutional,
and in that sense of the term, most repugnant to the laws of the
realm, if passed under circumstances which
did not-render it ex-
pedient, or rather necessary? Would, on the other band, any
one contend that it were repugnant to law, in ease of such expe-
diency or necessity? The same observations may be made with
respect to the many Acts of. Parliament which the Legislature has
Ire-
land. Al! of them would be unconstitutional, and, iii that sense,
a the realm, unless rendered necessary by
repugnant to the laws
said that
pronounced to be rendered necessary by the disturbed state of Ire-
the state of the country. Indeed, it may be , every law ,
every
liberty,i t
b e called
l loe rd thefor
by
yilnl
emu'. aspityinodriteixdpedualleoisoy
but there re-
pugnant
is this distinction, that many laws are evidently expe-
dient upon the face of them, and from the known principles and
propensities of human nature, and require no specific proof that
they arc so; others may not appear to- be expedient upon the face
of them, and from the known principles and propensities of lm-
m res
ttoriclati:C.uonfltelsies
facts and circumstances.
an nature, but may be shown to be so by evidence of particular

It is clear, therefore, that the Court have a right, or rather, are
bound, to consider the expediency of proposed regulations ;
that
tile Court has, by the statute, legislative, and not simply judicial
functions to perform, and that even if it were not so, if the
Court were bound to exercise a power simply ju ;:cial, in many
cases the legality depends so entirely upon the expediency, that
the Court could not direst itself of the duty of considering it.
I shall now proceed to consider the regulation is question.
It must be premised, however, that the Preen at this presidency
is at present placed on precisely the same footing as in England.
In March, 1825, a regulation was passed by the Governor and
Council (upon a suggestion &Ail the
Court, made the preceding September, of its necessity,
on account of the continued rnisrepre
sentations of the Court's proceedings by one of the newspapers),
which was merely a copy
oft( afford i thenit to c ta 307,e' aii)-I,cilb
13i Ganeod. ant i
those
the object of which Wa3
who
might be aggrieved by anonymous libellers, the means of disco-
venlig the proprietors, editors, and printers of newspapers, and
other publications.
The purport of the present regulation, which is
of any
salnetya:
that passed at Calcutta, is to prohibit the publication o..acningnee.
paper, or other periodical work, by any person t
revocable
I►y
the Governor and Council, and to make such license at
the pleasure of the Governor and Council.
imposes a restriction upon the liberty _ .
thing but circumstances and the state of society can justify. Tire
"' Page 91 of Proceedings on Buckingham', Appeal.
It is quite clear, on the mere enunciation, that
subject,tlia tthis‘rveigiinehlatnioan.

Pe
-r Cent.
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- i ;- - --ri.
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-
vrtlitiii:lau:hlier4"99slCi consent R laClnci. ._"ai: " Ai)l"'ppr-Oi I:teik.Oaanilotfil:'ll

IgritisliLegislatnre has gone to a great extent at different times,
both in England and Ireland, in prohibiting what is lawful in
itself, lest it should be used for unlawful purposes, but nev
withoutits appearing to the satisfaction of the Legislature that
was rendered necessary by the state of the country.
It is on this ground of expediency and necessity, on account •
the abuses (as stated) of the Press at Calcutta, from the state ;
affairs there, and from the exigency of the case, that the Calmat
regulation is maintained by its very preamble; by three of ti
four reasons of the Court of Directors, upon the appeal ; and h.
the whole of the argument of counsel upon the hearing of it.
Thusr, the' Sreamble to the Calcutta regulation is--
Whereas matters tending to bring the Government of tl
country, as .by law established, into hatred and contempt, and t,
distimb the peace, harmony, and good order of society, have ; ;
late been frequently printed and circulated in newspapers, an,i
other papers published in Calcutta; for the prevention whereof,
it is deemed expedient to regulate by law, the printing and pub-
lication within the settlement of Fort William, in Bengal, of
newspapers and of all magazines, registers, pamphlets, and other
printed books and papers, in any language or character, pub-
lished periodically, containing or purporting to contain public
news, and intelligence or strictures on the acts, measures, and
proceedings of Government, or any political events or transac-
tions whatsoever."

The reasons of the last India Company embrace the same facts
-and the consequent expediency and necessity of the regulation. ,
The- Aril reason commences--
" Because the said rule, ordinanet, and regulation, was made
by eotnpetent autbotity, and tr'.s rendered necessary by the abuses
lo which the unrestrain.-,a
Calcutta. Thr liberty of printing had given rise in
lll'::atnble of the said rule, ordinance, and regula-
tion, statt'st t'..tat matters tending to bring the Government of
Bloica4 as b • 7-1 w established, into hatred and contempt, and to
tikti`
peace, harmony, and good order of society, had re-
before the making thereof, been printed and circulated in
newspapers and other papers published in Calcutta.
Again, in the second reason—
." That the restrictions imposed by the rule, ordinance, and re-
iulation, which is the subject of appeal, were called for by the
state of affairs in the settlement of Bengal, and were adapted to
he exigency of the case."
Again, in the fourth reason—

" The reasonableness of ordinances must depend upon the cir-
cumstances and situation of the country to which they are ap-
plied."

I need not go through the addresses of counsel to show that
the whole of their arguments in favour of this regulation are
founded upon the fact, as stated in the preamble, of their expe-
diency and ,necessity from the local circumstances and the exi-
gency of the state of affairs at Calcutta; and I respectfully pre-
sume that his Majesty in Council approved of the regulation for
the same reasons, no others having been urged, and, in particu-
lar, upon the ground that the preamble of the regulation reciting
such exigency was not traversable or questionable.

. But what is the preamble to the regulation which is now pro-
posed to be registered in the Supreme Court at Bombay ? Is
there any recital of matters " tending to bring the Government of
this country, at by law established, into hatred and contempt,
batting heed printed and circulated in newspapers and other papers
putlishett. in Bombay ?" Nothing of the kind; the preamble
ineieltrecites, that a certain regulation had been passed in Cal-
'mkt for the prevention of the publication of such matters. Is
St the fact that such matters have been published in the Bombay
papers ?' Can a single passage, or a single word, tending to
bring the Government of Bombay into hatred and contempt;'—
can a single stricture, or comment, or word, respecting any of
the 'measures of Government, be pointed out in any Bombay
paper .?

How, then, without such necessity as is stated in the preamble
to Calcutta regulation, can it be expected that, even were the
Supreme Court to consent to register it, and an appeal were pre-
ferred,- it would be confirmed by his Majesty in Council
where would be the reasons of the Court of Directors in favour of
it?—where would be the arguments of counsel in support of it ?
Suppose an Act of Parliament passed to suspend the Habeas
Corpus Act in Ireland, on account of treasonable practices in that
Coutitty ;" in such case, evidence of such practices would he laid
Wore. Committees of the two Houses of Parliament before the Act
was passed; and the Act would also recite them, as the Calcutta
regulation recites the evils which it was intended to remedy. But
would the fact of such Act having been passed for Ireland justify
a motion to extend it also to England, without any evidence of any
such treasonable practices, nay, when it was well known that
there were-no such, or any circumstances to call for it, and with a
mere recital of the Habeas Corpus Act having been suspended in
frelto; as the present proposed regulation merely recites, that the
eat;ne refutation had been passed at Calcutta?
J--46-1 of opinion that this proposed regulation should not be re-
gistered.

Judgment of Mr. Justice RICE.
t have read the case of the press of India before the King in
Council - but still I think the clause as to the change in the pro-
posed rale, is repugnant to the law of England,—and that policy
did not, and does not require it. It is argued, I think, too
much as if the Natives had been at all affected by the licentious.
hest of the press ; the mischief in Calcutta was wholly, I think,
confined to the English, and would, I am persuaded, have re-
medied itself.

Considering, as I do, that the liberties of England are part of the
law of the land, and that they depend on the freedom of the Press,
Lcannot conceive how a license, which is to stop its mouth and
stifle its voice, can be consistent with, and not repugnant to, the
laW of England.

`though I entertain this opinion, I shall not object to the re-
gistry, because, as regards the repugnancy, I defer to the apellate
authority, as I should on any point of law which they had decided
contrary to my judgment ; and with regard to the policy and the
expediency, I do not think the Legislature intended to leave them
so much to the consideration of the Court as to the Government ;
which ought to be the better judge of such subjects, and which
must now be presumed to have formed a proper judgment. It
is not desirable that the judicial should ever be mixed with the
executive, or combined with the legislative ; and Parliament
having legislated so much for British India, it is a pity, I think,
that a question of such vital importance, with analogy to Eng-
land, should not have emanated in, and had the sanction of, Par-
liament.

I feel further justified in acquiescing in the registry, (now that
t have stated publicly my opinion,) because the decision of the
Council must be known to Parliament, and if Parliament should
object, it was easy to propose a bill to limit and more accurately
desae the local authority ; and when one considers of whom the
AVy'Council consists, and who were the advocates of Mr. Buck-
ingliam,—men all eminent in Parliament as well as the profession
—one cannot avoid feeling, that ulterior measures would have been
adopted in England, if the opinion which I unhappily entertain,
as to the repugnancy and the necessity of this rule, had been cur-
rent and general._

Judgment of Mr. Justice CHA MBERS
In order to explain clearly the grounds of my • opinionron the
present occasion, I think it necessary to advert in a cu
to the circumstances under which this regulation is presented atyc,
us. In consequence of the recent decision of the Privy Council
against Mr. Buckingham's appeal, it has, I believe, been recom-
mended by the Court of Directors to the local Governments of
Bombay and Madras, to propose that the Bengal regulation re-
garding the Press, should, totidem verbis, be registered, and be-
come a part of the local law of each of these presidencies; and
the Government of Bombay so far acquiesce in the views of the
Court of Directors, as to propose it for our registration, according
to their recommendation. It appears to have been thought, that
the decision in that particular case is tantamount to a legislative
declaration, that the same, or similar regulations, are so consonant
with the general policy of the Indian Government, that they need
but to be proposed in order to be adopted. If, indeed, that de-
cision bore in any way directly upon the general question of the
expediency of such regulations, there is no man in the situation of
a.•Tildife; who would not feel great deference for such authority.
Bat, artless it could be shown, that such a decision bound us•
with the, foreforeof an Act of Parliament, even then, I conceive, a
Judge wow: on the present occasion, feel it to be his duty
to consider
€l4l novo the general principles, and exercise most con-
scientioaily the discret'
ion the Legislature had vested in him. But
When groan& may =may be that decision,
the rind*
npntrwhichy suggested for
are called upon, prospectively, to
e mauler theexpectncyorwt
1713411 e what
ne
siv
and
.e present regulation, I am at a loss to
Council,
connection there is between
the decision of the Privy
of the r and the proposal of it for our
adoptidn. The decision
all the grounds upon Which it wa:7 Council, stripped as it is of
presents to my mind
merely a confirmation, retrospectiveluynned'
presne Government in Bengal, in 'of
a solemn act of the Sc...
conjunction •
with the Supreme
COurt, upon a subject-matter exprss! •
yvvi3in their authority,
under circumstances which, if. true, might justify that Act,
and of the truth of which circumstances,
the competent judges. What bearing :sar what
alone were
material in-
fluence can such a decision have on our minds, who are are
called upon
at another place, under totally different circumstances,
prospectively,
the expediency of introducing the same to consider,
regulation,
sot as a remedy for any existing or imminent evil, but as a general
and permanent act of legislation? The preamble, it may be said,
•eras not prayed, nor required to be proved, to be true before the
• Council; but that I conceive could no more be done, than the
Court of Kinei Bench could require the proof of any fipecial find-

-

ing of a Jury on a special case brought before them ; and it does
not, therefore, follow, that the preamble is mere waste paper, and
unnecessary to form a ground-work for such a restrictive regu-
lations.

All such regulations being confessedly restrictive of natural
liberty, to a much greater extent than it has ever been thought
necessary to carry matters in our own country, (I mean in the
best time, or in the way of permanent enactment,) whatever dis-
tinctions may be made by the terms contra legem and preter legem,
to common understandings they are as much opposed to the ordi-
nary notions of English law, as light is to darkness; and neces-
sity alone, and that of a very obvious and permanent kind, can
justify, in my judgment, their registration. In all such cases
of imperfect definition of legal rights, it is impossible not to see
that the situation of the different places may require different
legislative enactments, and what may be necessary at one place,
may be perfectly superfluous at another. In the same way, even
in the same place, it may he premature to introduce strong mea-
sures at one time, which, at a riper period of society, may he
deemed highly beneficial. There is no subject, indeed, the con-
shleration,of which is acknowledged to require a sounder discretion
with reference to local circumstances, or in which local circum-
stances have so direct an operation, in determining the legality or
illegality of particular measures. In every separate jurisdiction,
therefore, it must be purely of discretion, how far and when it is
expedient to introduce restrictive regulations of this nature.

Without, therefore, considering very minutely the particular
tendency of the regulation proposed, although I have no hesitation
iu saying, that if registered, its general tendency would, in my opi-
nion, be most prejudicial to the independence and good spirit of
the community ; with respect to the necessity of introducing any
such regulation at all at the present moment, I conceive there can-
not. be two opinions. In a time of perfect tranquillity—with a
small community of Europeans, and a Native population submis-
sive even to servility—the only effect would be imposing new
shackles to restrain no evil, and, by leading to by-paths of favour
and influence, to create perhaps a greater practical evil than any
it can ever obviate. Indeed, nothing can exhibit in a stronger
light the difference of circumstances in which this presidency is
placed, than the total omission of the preamble of the Bengal re-
gulation in that now presented to the Court for registration : a
preamble, the conviction of the truth of which would alone induce
me to countenance any suds measure. Nothing more is neces-
sary to show how perfectly inapplicable the state of things here
is to such restrictive measures than the perusal of that preamble;
not one word of which has, or is likely to have, I trust, for a
long period of time, any force as applied to this presidency. The
• disposition and character of the people is not the greatest differ-
ence of circumstances to be attended to ; the weighty and import-
ant difference between the situation of the two places consists in
the enactment at this presidency of an intermediate set of regu-
lations, in conformity with the well-known Act of the 37th
Geo. 111., which were registered in the course of the last year,
by which, in my humble judgment, every rational object of Go-
vernment is attained, consistently with perfect liberty, both
social and particular. When it shall he shown by experience,
that this Court, administering a law which has been found com-
pletely effectual in England to restrain licentiousness, and during
a period of thirty years, has operated on society with the most
beneficial effect, and has found no revilers even amongst those
whom it has brought to justice, shall he found not sufficient to
ensure peace and order in society, and stability to the Govern-
ment, it will be then time enough to listen to the suggestions which
I consider so objectionable in principle as this regulation.
It seems to have been argued that the only question for the
Judges to consider is, whether the regulations proposed are, or are
not, repugnant to the existing mode of governing British India?
It is true, that in this mode of arguing, scarcely any regulations
would be inconsistent with law, which fell short of unlimited and
arbitrary power. But upon the principle which I have before
stated, nomely, that legality or illegality, as applied to such a sub-
ject, depends entirely upon the apparent necessity of the case, I
conceive that the full legislative discretion which the Parliament
of Great Britain exercise in all cases affecting the liberty of the
subject, is intended to be delegated to the Judges of this Court, in
conjunction with the Government, in registering and making local
regulations, restrictive of the usual and ordinary rights of indivi-
duals. In the exercise of such a discretion, lam of opinion, that
ten thousand deviations from the law of England, in particular
cases, would form no argument for adding one snore to the cata-
logue, nor would the circumstance of so many previous anomalies
snake one fresh one consistent with it.

Another argument which has been used had some influence with
me. The effect of the actual state of things has been forcibly re-
presented with regard to British subjects residing in India with or
without license; the principles of Government of the British and
Native population without the limits of the seat of Government
are also stated ; and then it is asked, whether the small portion of
the Native population residing in Calcutta, or the other Presiden-
cies, were intended to be governed in a different manner? To which
I answer, that by the establishment of the Supreme Courts at the
Presidencies, I conceive that it was the intention of the Legislature
that both British and Native inhabitants, within the ordinary
limits of the Presidencies of the jurisdiction of these Courts,
should enjoy the full benefit of English law, and consequently
should he governed in a different manner from those in the pro-
vinces. It may he said, that the power of sending British sub-
jects home extends to those residing in the presidencies as well as
to others ; hut it must be remarked, that this power, as it has
been exercised over the press, has probably never been in the con-
templation of the Legislature at all. It is a consequence of the
discretionary power vested in the Government for general pur-
poses, and the particular acts of the Government regarding the
press have been confirmed by the courts of law; because it would
he difficult for any mind to form a distinction between this and
other cases in which individuals became obnoxious to the Go-
vernment. But whether this or any other Government, under
existing circumstances, would deem it expedient to frame any re-
gulation relating to British subjects, restrictive of the press,
(nakedly considered,) is another question, and which is deserving
very serious comideration. Both in Bengal and elsewhere, it has
been thrown out, that nothing short of the present proposed rept
lation would he effectual to restrain even British subjects from
writing inflammatory publications. Because, if the editor and
the proprietors were all Asiatics, and could be indemnified from
the consequences of prosecution, British subjects might, under
their names, write and publish things offensive to the ruling powe!..
Whenever the period shall come when such a state of things is
possible, and when all legal modes of repressing the evil shall have
been tried, and tried in vain, it will be time enough to attach some
weight to any argument which may be derived from such a source.
Till that time arrives, I am of opinion that the proposed regula-
tion is not expedient, and I decline giving my voice in favour of
its being registered.
Judgment of the Court—Regulation disallowed.

SPORTING INTELLIGENCE.

TATTERSALL'S.-JAN. 29

The betting yesterday placed Olivera as decided first favourite,
6to 5 being laid, in hundreds, several times over. We do not
think, however, that the list will continue long in its present
state. The Derby betting was not very brisk ; but we should
notice, that Defence promises to rise in the odds. Nothing of
any consequence was done on the Oaks, but Maria got up half a
point. The late Duke of York's racers will be sold here on
Monday next, in 33 lots.

DERBY.

8 to 1 apt Glenartney.
Si to 1 agst Tatler*
14 to 1 agst Espagnolle
18 to 1 agst Defence

23 to 1 agst Mameluke
24 to 1 apt Catherine
30 to 1 art Augusta
33 to 1 agst Turcoman*
33 to 1 agst Dahlia*
30 to 1 agst Cressida*
40 to 1 agst Gamelius

20 to 1 nist Spondee
. .

20 to 1 agst Gaberlunzie
22 to 1 agst Trumpeter
23 to 1 agst Gustavus°

5 to I agst Maria
11 to 1 agst Totteridge
13 to 1 apt Brown Duchess
15 to 1 apt Translation
15 to 1 agst Souvenir

20 to I agst Calypso
20 to I agst Lunacy
33 to I agst Scornful*
50 to 1 agst Seamew

ST.

14 to 1 agst Olivera
15 to 1 agst Reviewer
18 to 1 agst Sancho
18 to 1 agst Popsy
22 to 1 agst Matilda
6 to 5 on Oliver;
Those marked tin

.EGER.
23 to 1 agst Moonshine
25 to 1 agst Niralis
30 to 1 agst Jupiter
40 to 1 agst Beggar Boy.

L agBt Reviewer*.
is (.) were taken.

A PAINTED SUPPER.-The author of 44 High
Life below Stairs" was Mr. James Townley, a clergyman. I
knew his son, a celebrated miniature painter, and an acquaintance
of my brother's. When this piece was played in Dublin, Knipe,
remarkable for saying smart things, and who also liked " the joys
of the table," feasted by anticipation on the good roast fowl, and
bottle of wine, at the supper in the last scene; but the property-
man who provided it was of the saving cast ; Knipe stuck his
fink into the fowl to dissect it with carving skill—it was a piece
of painted timber ? He filled his glass, as he thought, with wine,
it was mere coloured element ! " Hah !" said he, " instead of our
bottle and our bird, here is a fine subject for a landscape painter,
wood end water."... 0' Keeffi:s Life.