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discussing. In Sir John Strachey's vivid memoir of Lord Mayo occurs the following passage :—
"In administering the Acts providing the means for the execution of local works of utility, Lord Mayo was most anxious that the natives of the country should be associated to the greatest possible extent with the officers of the Government, and he lost no opportunity of urging that they should be encouraged to take an active part in the management of their own local affairs. He always said that he was convinced that from one end of India to the other there was no lack of men of ability and intelligence who could afford most useful help to the Government in this manner. The personal patronage of the Viceroy in regard to the great mass of appointments in India is so limited that it was not easy for Lord Mayo to do much towards promoting such objects by appointing Natives of the country to posts for which they are fitted. But he lost no opportunity of urging their claims, and of declaring the duty of the Government to open to them a wider field of honourable employment."
Now from the time of Munro, whose work hegan a century ago under Warren Hastings, down to the present time, I have given a chain of evidence to show that English Ministries and Parliaments, and statesmen of weighty character and well versed in Indian affairs, have borne testimony that we should rule India, not for our own benefit or in the spirit of conquerors, or with an eye mainly to the perpetuation of our own dominions, but for the benefit of the Indians, and as far as possible through their agency. If Lord Ripon's pending measure is condemned, either this principle must be denied, or it must be shown that the measure is faulty by being illadapted to the purpose of enlisting Natives in our service, or by being abrupt, or violent, or ill-timed. I will address myself to the latter of these alternatives.
Since the great reform of 1833, what has been done to raise the level of mental and political power among the Natives in the three great kindred departments of action that I have mentioned? For their general education much has been done. As to free speech, there have been oscillations of policy, but at present the Indian press is free enough. But in the matter of employment, change, though constantly contemplated, and from time to time attempted by Indian statesmen, has been very slow in coming.
It is true that Natives are employed throughout the lower judicial service, which has almost entirely passed into their hands, as I have before stated.
As regards criminal jurisdiction, it has for fifty years been an object with Indian statesmen to bring Europeans under the courts established for the country at large. This object was, until the year 1872, one of very great importance, because the English community were, except for some petty offences, triable only by the Supreme Courts which became merged into the High Courts, and by the Chief Court of the Punjab. These Courts sat only in Madras, Calcutta, Bombay, Allahabad, and Lahore; aDd the country is so vast, and its communications were so backward, that the suitor might be many days' or even weeks' journey from his tribunal. Practically speaking, there was absolute impunity for most crimes committed by Englishmen, except in the five towns or their immediate neighbourhood.
This impunity was pleasant to the privileged class, and they long resisted the attempts of the Government to deprive them of it. In 1837, when the Penal Code was first drawn, and again in 1843, the Indian Law Commission advised that jurisdiction over Europeans should be conferred on a class of provincial magistrates, which was then entirely manned by Englishmen; and in 1849 the Government of India brought into Council a Bill for that purpose. The English community objected quite as violently to being tried by an English provincial magistrate as they now object to a Native provincial magistrate, and they seem not to have been ashamed of their violence against the Black Act, or deterred by their defeat and the falsification of every one of their prophecies on that occasion, from exhibiting equal violence and uttering equally foolish prophecies on this. The upshot was that the Court of Directors ordered the Government of India to postpone the question until the Penal Code, which was still under discussion, had been settled. It was evidently thought, even by those who hesitated at that moment to support the action of the Government of India, that when a uniform criminal law was established throughout India the case would be much altered. In 1855 the second Indian Law Commission returned to the charge, and shortly afterwards the Government of India introduced a fresh Bill for the same purpose. This was met by a fresh agitation like the former one. How it would otherwise have ended cannot now be known, for the mutiny broke out, and this, along with much other business, was stopped.
In 1870 the Indian Law Commission emphatically called attention to the omission to remedy so glaring a defect in the law. Indeed, by this time, with the increase of Europeans in the country, the abuse had become intolerable; and, what is perhaps of more importance when there is a question of taking away some badge of privilege, easy communication and increased knowledge of Indian affairs had informed people in England sufficiently to create some body of opinion, and to support the Government against the privileged class. Moreover the Penal Code had been at work for some years, and was found to be an excellent piece of legislation.
I have pointed out that on previous occasions the class of piovincial magistrates whom it was proposed to invest with jurisdiction was exclusively English, but in 1870 it was well known that some Natives might be introduced into that class—indeed, that an Act of Parliament had been passed for that very purpose. Nevertheless the Commissioners proposed uniformity of jurisdiction.
I should observe that in the meantime Native Police Magistrates, "with jurisdiction over Englishmen, had been appointed in the Presidency towns, where they have acted, and are still acting, in a satisfactory way. "We have not heard there of any bloodshed by infuriated Europeans, or of any trumped-up charges more than are heard of before other tribunals.
It is also the case that Natives have been appointed judges of the High. Courts which superseded the Supreme and Sudder Courts, and have even acted as Chiefs of those courts. These Native judges have complete criminal jurisdiction, even to the extent of capital punishment, though they very seldom, if ever, sit as criminal judges.
In 1872 a change came at last, and the great scandal of impunity for English offences when committed in the Mofussil, or provinces, was removed. An Act was passed which has given to certain classes of magistrates power to try the privileged class called European British Subjects, and to inflict on them fines, and imprisonment never exceeding one year in a place appointed for that purpose. For offences justifying a heavier punishment, the offender must still be committed to the High Court. And in every case he has an appeal to the High Court. The new jurisdiction is given only to magistrates who are themselves European British Subjects.
This enactment was passed with very little remark by the privileged class. I was not then in India, and hardly know the cause of their unwonted quiescence; for shortly afterwards, when I was in India, and when the Act began to work, there was a great outburst of fury. A District Magistrate sent an Englishman to prison for brutally beating a Native. The English of Calcutta talked as if the foundations of the world were broken up. They would have it that the charge must be a fictitious one. All the evils prophesied of the Black Act were prophesied over again now. No Englishman was safe; capital would leave the country, which would be ruined, and English trade with it. The sentence must be reversed, and the magistrate disgraced. The sentence however was upheld. None of the prophecies took effect, and everybody is the better for its being known that there is now a real restraint upon Englishmen whose tempers incline them to violence.
The same feeling showed itself in a more subdued way on two other occasions while I remained in India. Once when a provincial magistrate committed for trial a man accused of murder, and the case for the prosecution broke down; and once when the Government reproved a magistrate for giving a mere nominal punishment to a "European British Subject," whom he had found guilty of striking his servant so as to kill him.
The precise position of affairs cannot yet be understood until it is explained who these "European British Subjects" are. They are a class artificially created by the Act of 1872. They arc all the Queen's subjects, born, naturalized, or domesticated in the United Kingdom, or in the Colonies of Europe, America, Australia, New Zealand, or South Africa, and their legitimate children or grandchildren. I do not wish to put absurd hypotheses, such as that a Kaffir or a Maori would fall within this class, for the purpose of exercising jurisdiction or claiming exemption. But it is worth observing that not Englishmen only, but their half-caste sons, and their more Asiatic grandsons, may now sit in judgment upon English prisoners, and are exempt from the jurisdiction of a judge of pure Indian blood.
To show both the administrative inconvenience and the personal indignity resulting from the present law, I will quote a passage from a very able and instructive speech delivered by Mr. W. W. Hunter, in the Legislative Council at Calcutta on the 9th of March last.
"The native civilians have now reached a stage in their service when tbey must become in the natural course District Magistrates and Sessions Judges. We have guaranteed to them equal rights with their English brethren, yet they must be excluded from those offices in the more eligible districts where English private enterprise exists, and they must be turned out of those offices in any district into which English private enterprise comes. Let me illustrate this by two examples; one taken from Bengal, the other from Bombay. On the 17th January last, a Native civilian was, in the ordinary course, appointed Joint Magistrate, with powers of a Magistrate of the first class, at the important station of Dacca. On the 23rd January he received a letter from the Secretary to the Bengal Government, cancelling the appointment, and transferring him to a less eligible district, on the ground that the opening out of the Dacca and Maimansingh Railway was bringing a number of Europeans into Dacca district. The gentleman thus disqualified had won the second place in his year, by open competition in England, from among several hundred candidates; he is an English barrister, and he had proved his fitness for the post from which he was turned out by twelve years of service. In the Bombay Presidency, a Native civilian holds the important office of District and Sessions Judge of Kanara. His head-quarters are at Karwar, the coast terminus of the railway which, some time ago, was proposed to be constructed from the Dharwar cotton country. If this scheme should be revived, and the railway sanctioned, the Sessions Judge of Kanara would, under the exigencies of the existing law, have to be turned out of his district. Let us see what this practically means. The gentleman in question is Mr. Tagore. After a distinguished education, both here and in England, he has given about twenty years of unblemished service to the Government, and has established a high reputation as a Judge. He is a near relative of our late colleague, the Maharaja Sir Jotendro Mohan Tagore, who, during an unusually prolonged period, assisted this Council in making the laws of India. The well-earned encomiums in which your Excellency expressed your sense of the services thus rendered are still fresh in our memories. Yet we are told that we must not entrust to a member of the same noble house, notwithstanding his training in England, and his twenty years of proved integrity as a Judge, the power of sentencing a European British subject to a short term of imprisonment. This too, although the European British criminal has the right of immediate appeal from any sentence of imprisonment, however brief, and from any fine, however small. If it were necessary I could multiply examples. Unfortunately, the time has come when Buch examples will year by year multiply themselves, unless die existing law is changed."
Such being the state of things, all that Lord Ripon proposes by way of change is that when one of the Natives, whom for fifty years we have laboured to get into our service, is of such proved capacity and merit as to obtain an appointment into a high class of magistracy, he shall not, merely on account of his race, be excluded from functions which other magistrates of his class exercise.
I think that every one who has followed what I have written will see the reasons for such a change, and that it is the necessary consequence of the long movement for employment of the Natives. It was proposed in 1872, and was then supported by a majority of the Government of India, and by five of the Legislative Council out of twelve. It has been brought forward now by the Bengal Government. The Government of India consulted all the Local Governments upon it, and with the exception of the very small Province of Coorg, all those Governments, and most of their component members and of the officers consulted by them, were in its favour, though a new Lieutenant-Governor of Bengal has taken an opposite view to his predecessor. All our experience goes to prove that it is a prudent step and a beneficial one. Something may be argued from the success of the Native criminal courts in»the Presidency towns. Much stronger is the argument from the Native civil courts. I have heard a judge's personal status referred to as a reason why bis authority on the particular law he was laying down should be considered greater or less; but I have never heard it suggested that Hindoo or Mohammedan judges favoured their own people, or that either favoured Natives as against Europeans. And yet the vast mass of Indian litigation is decided by Hindoo and Mohammedan judges.
One favourite argument used against the measure seems to me so transparently fallacious that I should not reply to it if I did not find it frequently repeated, and that by able men. It is founded on the existence of other privileges besides that one which the Jurisdiction Bill strikes at. There are, it is said, a great many anomalies in India. Various classes of Natives have privileges and customs, some of them very inconvenient. Europeans have privileges which we are not proposing to take away. What is the use of abolishing one anomaly when we retain a heap of others? We are straining at gnats and swallowing camels. Lord Lytton puts this dilemma. We have two alternatives. We may place Europeans and Natives on an ahsolute equality by abolishing all distinctive laws and privileges. If not prepared to do that, let us take things as they are in good part. Moreover, it is added, the Natives ought not to complain of European privileges when they have so many of their own.
The first answer to this line of argument is, that it supposes that the only, or at least the main, motive for the Jurisdiction Bill is to remove an anomaly. I have written this paper to little purpose unless I have made it clear that what is to be removed is not merely