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Redistribution of Seats? I object to arguing the question as though Home Rule were already a chose jugée.
The truth is, a great deal of the Home Rule agitation is very much of a Parliamentary nature, and arises from the fact that a solid Nationalist party has got tied up in a policy which the march of events and the lapse of time would have long ago relegated to its proper Parliamentary perspective, were it not that for these gentlemen to confess that Ireland is prosperous and likely to be far better off under the mild and beneficent sway of Westminster than under the tempestuous scuffle in Dublin, would be the death-knell of the Nationalist party, as it is known to-day. Nobody would or could object to this party continuing to agitate -if they wanted to-for separation, or to their continuing to elevate grievance into 'grievances' (so easy when you can control eighty votes), or even to their generally controlling Parliamentary business, if they were able to do so by the use of their proper share of votes in the Division Lobby; but everybody should object, and go on objecting, to any group, either well or ill disposed towards this country, that are only enabled to do all this owing to the grossly unfair and privileged position that their over-representation gives them. Before an irrevocable step like Home Rule is taken, for which the country has given no mandate, let each portion of the United Kingdom be given its fair share of representation, and if the people, who are the final court of appeal, then decide that they wish this policy translated into law, there cannot be much more to be said. But whether Home Rule is a good policy or a bad one, it is impossible to conceive that it can be worth anything to anybody if it has not behind it the sanction of the community given through the ballot-boxes, but has to be rammed down Ulstermen's throats with bayonets; and, as the time draws nearer the fateful day when the spark of civil war must inevitably be lighted if the course is not changed, I venture to think that an overwhelming majority on all sides. of the House will be prepared to embrace this reasonable, straightforward, and honourable solution of what all true friends of this country can only regard as a very dangerous situation.
THE HIGH COURTS IN INDIA
In the course of this year half a century will have passed since High Courts were established at Calcutta, Madras, and Bombay. The High Court at Allahabad dates from 1866, and it is now under contemplation to establish another High Court at Patna, the headquarters of the new Province of Behar-Orissa, presumably on the model of that at Allahabad. It is therefore a fit occasion to consider how far the existing High Courts have fulfilled the expectations of their founders, and at the same time to review shortly the system of administration of justice. in British India, which has recently attracted unusual attention in England on account of some trials connected with attempts to excite sedition amongst the Indian communities.
The three original High Courts were formed by the amalgamation of the existing Supreme and Sudder Courts, representing respectively the Crown and the Government of the East India Company. The Chief Justice and the Puisne Judges of the Supreme Court were barristers appointed in England by the Crown; the Judges of the Sudder Courts were members of the several Civil Services in India, and were appointed by the local Governments. The High Court at Allahabad merely replaced the existing Sudder Court of the upper provinces of Bengal, with some special jurisdiction added to it which need not be described.
The Courts of Bengal were of the oldest date. The Sudder Court was established by Warren Hastings in 1772, and soon after the Supreme Court was established at Calcutta in 1774 by Royal Charter under the Regulating Act of 1773 (13 Geo. III. c. 63). The Supreme Courts at Madras and Bombay were not established until 1800 (Madras) and 1823 (Bombay), the Sudder Courts being of older date. The Supreme Courts exercised full civil and criminal jurisdiction in the Presidency towns, and also over matters in which European British subjects were con cerned throughout the Presidency, as well as some other jurisdiction which it is unnecessary to specify. In 1834 this special civil jurisdiction in respect of European British subjects was withdrawn. They were consequently Courts of original jurisdiction. The Sudder Courts exercised appellate and revisional
jurisdiction over the proceedings of the local Courts outside the Presidency towns. The existence of a dual system of Courts sitting at the same place could not continue, and its abolition was accelerated by the assumption of the government of India by the Crown in 1858.
The first Judges of the High Courts were necessarily the existing Judges of the Supreme and Sudder Courts, the Chief Justices of the former being translated to the same office in the new Courts, and to them were added others qualified under the Royal Charters in such numbers as the business before the Courts demanded. The Calcutta High Court was the strongest, containing as many Judges as the other two High Courts combined. It was intended to attach to the Calcutta High Court a Pleader (Indian) of the Sudder Court, but the gentleman selected died before his appointment. It was not long, however, before his successor was appointed. In course of time others of the same class have been appointed Judges of the other High Courts, and more than one have simultaneously held office. In thus uniting in the new High Courts barristers, members of the Civil Services in India, and qualified natives of the country, it was sought to improve and strengthen the administration of justice by associating together Judges of classes who would each supply his own experience and special knowledge in which the other was deficient; and so it was authoritatively declared that a Judge of a High Court must be :
(a) A barrister of England or Ireland or a member of the Faculty of Advocates of Scotland, of not less than five. years' standing; or
(b) A member of the Civil Service of India of not less than ten years' standing, and having for at least three years served or exercised the powers of a District Judge; or (c) A person having held judicial office not inferior to that of a subordinate Judge, or a Judge of a small Court, for a period of not less than five years; or
(d) A person having been a pleader of a High Court for a period of not less than ten years.
Provided that not less than one-third of the Judges of a High Court, including the Chief Justice, must be such barristers or advocates, and that not less than one-third must be members of the Civil Service of India.
The composition of the new High Courts was well designed and received unqualified approval, while the mature experience and proved capacity of the new Judges secured the fullest confidence of the public in India. But to provide properly for the future it was necessary that nothing should intervene to make such appointments less attractive, or that if by some unforeseen
ill-fate that should happen it should be met by some counteracting influence, so that candidates for such high and responsible office might not be deficient in the professional knowledge and experience which it was sought to obtain, and which was indispensable for a successful administration of justice in India. It is my object to show that the conditions under which appointments were made from the English Bar in the early days of the High Courts do not exist at the present time, and that these changes have operated injuriously in regard to the maintenance of the same standard of Judges.
When the salaries of the Judges were fixed in 1862 in the silver currency of India-rupees-a rupee never represented less than two shillings-that is, ten rupees represented one pound sterling in the gold currency of England. At the present time the value of the rupee has been fixed by the Government at 1s. 4d., so that fifteen rupees, instead of ten rupees, is the equivalent value of one pound. So far as the spending power of the rupee in India is concerned, this may be of little consequence to the Judge personally while holding office in India, but it seriously affects him in regard to remittances to England for the support of his family, the education of his children, and the means of providing in case his health should fail before he has earned his pension; and also in regard to saving something to supplement his pension in declining years.
It needs little to explain that this has deterred many members of the Bar-in fact, anyone with fair prospects of professional advancement in England-from accepting the highest judicial appointment in India, involving banishment from home for the best years of life and uncertainty whether the change to a tropical climate will suit a constitution inured to different conditions; coupled with small prospect of returning except with a moderate pension terminable at death, and supplemented by little to support a wife and family in the event of accident. Such a man may insure his life, but that again detracts from his power to remit to England or to provide for his own advancing years on retirement. It has always been a matter of some surprise that those responsible for good government in India have not realised the influence which such conditions must have, and have had, on their power to secure men of proper attainments to fill the office of Judge in the High Courts of India, and that they have been. content apathetically to accept candidates of questionable ability and experience. But, strange to say, not only has it been so, but by their short-sighted policy the governing bodies have added another serious impediment to the acceptance of such an office by a barrister in England. They have declared that he shall be superannuated on attaining the age of sixty years, and thus
vacate his appointment. This makes it impossible for anyone to accept a Judgeship in India who may be forty-eight years of age unless he deliberately forgoes all prospect of obtaining a retiring pension, for under the existing rules a full pension can be earned only after twelve years of service, of which six months may be on leave. To produce the present situation in its complete aspect -the Government has allowed the value of a Judge's salary to be diminished by the shrinkage of its silver currency in which that salary is payable, thus making that office less attractive, and at the same time it has diminished the area of selection from the Bar in England by declaring that sixty years of age shall be the limit of retention of office. Neglect to remedy the first condition may be due to apathy; the second is a deliberate act. Can it be doubted that a Judgeship in India is less attractive to a member of the Bar in England than it used to be, and that it fails to obtain candidates of the same attainments as in former days? Surely some remedy should be applied to the existing state of affairs.
Shrinkage in the value of the rupee in England and superannuation need not be taken into account in respect of the position of members of the Indian Civil Services holding the office of Judge of a High Court. For many years past members of the Indian Service have gone to India with these prospects before them. Superannuation in their case means only an almost certain loss to the public service of experience and knowledge matured in earlier years which their younger successors cannot supply. Voluntary retirement of Judges taken from this class on pensions earned in the Civil Service nearly always anticipates superannuation-still, compulsory superannuation may sometimes deprive a Judge of the judicial pension (1200l. instead of 10007.) which he has almost earned, and no Government should desire this. But it is notorious that the judicial branch of the Civil Service, which supplies not less than one-third of the Judges to the High Courts, labours under great disadvantages from deficient legal education and knowledge of the law of the land in its letter and in its interpretation expressed through the Law Reports, and that on his first appointment to a District Judgeship a member of the Civil Service finds himself nowadays in this respect embarrassed in his relations with a local Bar which has had advantages beyond his reach. During his previous service as a magistrate he may have acquired the necessary knowledge and experience of criminal law and practice, and as a subordinate revenue officer he may not be without some experience and knowledge of the complicated revenue system; but in regard to civil law and the practice of his Court he has everything to learn. This has long attracted the attention of the Government of India.