§ On the Order of the Day for the Further Proceeding on Consideration of this Bill,
§ SIR WILLIAM SOMERVILLE moved that the Order of the Day be postponed.
§ SIR FITZROY KELLY
said, as he had not received the slightest intimation from the right hon. Baronet as to his intention of moving the postponement of the Order, and as he had not condescended to give any reasons for his Motion, he (Sir F. Kelly) would take leave to proceed at once with the arguments in this case, with the conduct of which he was charged. [The hon. and learned Gentleman then entered at considerable length into a history of the matter, and reiterated many of the arguments which he had used on last Wednesday when the Bill was under discussion.] 1650 The object of the measure was simply to compel the East India Company to pay to the Nawab of Surat or his heirs an annuity of £15,000, which he contended they had solemnly contracted to do by a treaty which they entered into with the Nawab when taking possession of the Prince's territories and revenues. He trusted that upon a calm consideration of the case, during the week's interval that had taken place since the question was before the House, the right hon. Gentleman the President of the Board of Control was now prepared to come forward and admit that the honour of the country was concerned in this matter, and that the Government felt that justice demanded that this engagement entered into by the East India Company should be faithfully kept. He should, therefore, move that the Bill be read a third time.
§ SIR HENRY WILLOUGHBY
said, that a great portion of the evidence had not yet been printed, and, therefore, the whole case was not before the House. It was most absurd to attempt to discuss the question when the evidence only on one side was before them. He trusted that the debate would be adjourned for a week.
MR. VERNON SMITH
said, he had on Wednesday last asked the House to adjourn the consideration of the Bill for a week to allow of the Minutes of Evidence taken before the Select Committee being laid upon the table. By some mistake, to his astonishment, the case for the promoters was fully given, while that of the Directors was only specified in an index. The Chairman of the Committee, the right hon. Member for Oxford (Mr. Cardwell), who was not responsible for the defect, undertook to get it remedied, but the last paper was only placed in his hands when on his way to the House. Having, however, pledged himself to state his opinion, he should do so and leave it to the House to determine whether they would proceed further with their deliberation on the question to-day or not. He was bound to state, on behalf of the Court of Directors, that they had displayed the utmost anxiety to do what was right among these parties, and had not the least intention to inflict injustice from motives of self-interest. The position of the Bill was singular. By the authority of Mr. Speaker, it was decided to be in the nature of a Private Bill. He did not therefore oppose the second reading. It was referred to a Private Bill Committee, 1651 and the only doubt he had was whether it would not have been more advisable to refer it to what was called a Mixed Committee. The Committee to which it was referred was composed of five Gentlemen of high standing and great legal ability, and consequently the Bill received, in his view, too much of the construction of a legal document. He thought the Committee had limited their functions more than was intended. Having stated their decision upon the question of the private estate and passed the Bill as it stood, the Committee remitted to the House the consideration of the public question without giving any clue by which it should be guided. A Private Bill Committee was of all tribunals the most objectionable, for, although in theory such a Committee might discuss questions with deliberation and judgment, in practice it was found that the more common course was to make private business a matter of canvass. Under the sanction of the office which he had the honour to hold, the Court of Directors were entrusted with the government of India, and if persons, offended by any treaty or act of the Indian Government, were to come over to this country, and prosecute their claims by canvass and introducing Private Bills into Parliament, it would be one of the most objectionable systems they could by any possibility countenance. Speaking generally, it was perfectly notorious that the princes of India entertained very strong notions that everything was to be done by "kutput," and the House of Commons ought, by every means in their power, to discourage the practice of private solicitation in such matters. The question had been stated to be a merely legal question, but upon that depended the whole issue. Now, he decidedly held a contrary opinion. The public question resolved itself into two points—the title to the Nawabship and the annual stipend. The right to the Nawabship was, as he understood, completely given up by the present claimant, but there was an incidental question of inheritance. There could be no doubt that the Nawabship of Surat was in the hands of the East India Company to bestow upon whom they pleased. That certainly was the opinion of Lord Wellesley, of Governor Sir George Arthur, and of Lord Ellenborough. The argument that settled that question was, that the East India Company might have appointed the Bukshee as Nawab, and, if they had appointed him and given him the 1652 stipend of £15,000 per annum, could it have been said that the daughter or granddaughter of the Nawab was also entitled to that stipend? The question was, whether the stipend was to be given to the heirs of the body or to successors? The hon. and learned Gentleman (Sir F. Kelly) had omitted the word "successors" in the treaty, and yet that word governed the whole. The treaty was one between the Nawab of Surat, his heirs and successors, and the heirs must be successors as well as heirs. It was fair to say, therefore, that the heirs succeeding to the stipend should be successors to the Nawabship. Now, he must warn the House that there were other parties in the shade who did not appear before that House, but whose interests Parliament was bound to protect as well as the interests of those who came to this country and made themselves popular among Members of Parliament. [Sir F. KELLY: They may appear before the Privy Council.] He was aware of that, but their appearance in this country and before such a tribunal was much less easy than that of the wealthier heirs. With regard to the stipend, although the East India Government had a right to dispose of it as they thought fit, he would admit that it had never been the custom of the East India Company to deal otherwise than most liberally with the families of the native princes. The Bombay Government proposed to make these parties an allowance of 12,000 rupees a year at first. He thought this had been since increased and a case had been made out for dealing with them even more liberally, but the proposal he had to make was to be understood as consequent upon the withdrawal of the Bill. He considered a Private Bill the worst mode of dealing with the question, and the House would be doing the greatest possible mischief to the public service, if such claims upon the public revenues of India were to be made in Private Bills. It should be recollected that such claims really concerned the revenues of the Crown, of which the Directors of the East India Company were trustees for the benefit of the people of India, and he might have to discuss hereafter whether the Standing Orders ought not to be altered, so as to give the Indian revenues the same protection which the revenues of the Crown enjoyed in similar cases. As a Private Bill he should oppose the present measure; but if the Bill were withdrawn, he would undertake that the whole of the 1653 pension should be given to the descendants of the Nawab for the lives of the persons interested, to be distributed in the manner settled by the Government of Bombay. He did not propose that this allowance should be made perpetual to the families of the parties, because no benefit could possibly arise from maintaining a set of gentlemen for ever in pomp and luxury. Instead of becoming good citizens, they would probably become bad mock kings, the focuses of internal agitation, dissolute and unhappy in themselves, and cherishing hopes which could never be realised. He saw no reason, therefore, why those allowances should be granted in perpetuity. The offer of an allowance for the lives of the parties was, he thought, one of great liberality on the part of the East India Government, and perhaps the wisest course would be to adjourn the consideration of the question, so that the individual concerned might have an opportunity of reflecting whether he would accept the offer now made to him. If he should determine to persevere with this Private Bill, then, considering it to be unconstitutional, unwise, and improper, he (Mr. V. Smith) would take a division against it. The House must, however, remember that this was not a payment from a private fund, but from the revenues derived from the ryots of India. When the House was told, therefore, to compassionate the distress of this gentleman, he might appeal, if he chose, to the condition of those who would have to pay a person infinitely wealthier than themselves. He would now leave the question in the hands of the House, but he hoped the hon. and learned Gentleman (Sir F. Kelly) would fix such a day for the further consideration of this question, as would enable his clients to consider this proposal, which he hoped, as well upon their own account as for the constitutional question involved, they would be prepared to accept.
§ SIR FITZROY KELLY
said, he must beg to correct an error into which the right hon. Gentleman had fallen in calling the applicant his (Sir F. Kelly's) "client." He begged to inform the right hon. Gentleman that he had undertaken to forward this claim as an independent Member of Parliament, from a conviction that it was a just and well-founded one. He and the applicant could not stand in the relation of counsel and client. He could not accede to the proposal made by the right hon. Gentleman on behalf of the Indian Government.
§ MR. CARDWELL
said, the right hon. Gentleman the President of the Board of Control had objected to the form and constitution of the Committee, of which he, Mr. Cardwell, was chairman, and also to the limited functions which they had prescribed for themselves. He quite agreed with the right hon. Gentleman that the treaty part of this question ought not to have been left to the Committee on a Private Bill chosen by the Committee of Selection. That certainly was not the proper tribunal before which the matter should have gone. However, the officers of the House had no choice, and could do no otherwise than they had done, but there was an individual who had the power of remitting the question to another tribunal, and that was the President of the Board of Control. He might have taken the opinion of the Law Officers of the Crown, and he might then have stated his impressions to the House, or he might have availed himself of a clause in the Privy Council Act, and referred the matter to the consideration of a Committee of the Privy Council. The public part of the question ought to have been referred to an ordinary Select Committee, and the private question of property might have been referred to a Private Bill Committee. But when the subject was referred to the Private Bill Committee, after the Bill had been read a second time, their course was to deal with it as they thought best, and they did so by dealing in the usual way with the private question, and they reported specially on the public part of the question; and he would appeal to the House whether that, the unanimous decision of the Committee, was not the best course they could have taken? It was argued on the one side that the Nawabship of Surat became hereditary in 1800, by an agreement then made for the first time; and on the other side it was stated that the Nawabship was hereditary up to 1800, and that by the deed of alienation, called the treaty of 1800, it ceased to be hereditary, and had, in fact, never been hereditary since that time. It was, he thought, clear that before the year 1800 the East India Company did consider that they had vested in them the rights of the Court of Delhi, and that they had the power of disposing of the Nawabship as they pleased. But it was also clear that from the year 1759 down to 1800 there had never been an instance in which the line of hereditary succession had not been scrupulously observed; and 1655 it was also proved that when the Bombay Government proposed in the year 1792 to dispose of the succession as they pleased, and the question was referred to Lord cornwallis, he said that the eldest son of the deceased Nawab had a claim by hereditary title, and he consequently acknowledged that claim. On the next vacancy in the Nawabship, the hereditary heir attempted to ascend the throne, but Lord Wellesley determined to take the Government of Surat into his own hands, and he sent Governor Duncan to Surat with an armed force, and with instructions that if Nasr-ud-Deen would not ratify the articles of agreement sent with Governor Duncan, the Nawabship was to be given to some one else. The real meaning of those instructions was—"Take possession of the power of Surat by treaty if you can; by force, if by treaty you cannot." The Nawab executed the articles of agreement submitted to him by Governor Duncan, on representations which the Governor had prudently left upon record, and which had on a previous occasion been detailed to the House. The Governor pointed out to the Nawab's agent the expediency of the Nawab's cheerful acquiescence in the treaty, as it would give him and his family from generation to generation a greater security than they had yet had of an honourable provision. He added that the Company, which had never failed in a strict adherence to its engagements, would now become bound in perpetuity to support the Nawab and his family. On another occasion, when the Nawab's chief objection to the treaty seemed to be the omission of the words "for ever" after "heirs" in the 4th Article, the Governor assured the agent that a stipulation for a stipend for a man and his heirs meant that it was to continue for ever, or until the heirs became extinct. It was under those circumstances that the treaty was signed. With regard to the interpretation of the treaty, there could be no doubt that, if it were regarded as an agreement between private parties, there being no words of limitation to control the word "heirs," that word must be construed generally, and the agreement must not be regarded as limited to a particular class of heirs. He would next show in what manner the agreement had been acted upon. Nasr-ud-Deen died in the year 1821, and was succeeded by his son, who clearly could not have inherited the Nawabship without the concurrence of the Company. The 1656 widow of Nasr-ud-Deen then applied for a portion of the annuity on the ground that it was separate from the Nawabship, but the Bombay Government declined to put that construction upon the treaty, and the matter ended by the son giving the mother an allowance equivalent to the portion she had claimed. The son of Nasr-ud-Deen dying in 1842, the male heirs became extinct, and the promoter of the present Bill, who had married a daughter, claimed by right of inheritance the dignity of Nawab, together with the annuity. Now, what view did the officers of the Indian Government take with regard to that claim? Mr. Elliot, the resident at Surat, dealt with the annuity as a continuing annuity, and apportioned it among the persons who, he thought, were entitled to it. The opinions both of Mr. Elliot and of Mr. Blane were laid before Sir George Arthur, who, after a full review of the case, came to the conclusion that "the Government was bound in honour, equity, and good faith to continue the stipend." Sir George Anderson, also, who had formerly held the situation of Judge at Surat, although he doubted whether at the time the treaty was signed the contingency of the lapse of the Nawabship was contemplated, thought that, according to the words of the treaty, the heirs, while any remained, were entitled to receive the annual stipend. The Government of India, however, took a different view of the case, but he cast no imputation either on the Government or on the East India Company for the conclusion at which they had arrived; they were supported by strong authority, and they had no interest on either side. The power of the Company to determine the Nawabship, on the death of Nasr-ud-deen, had been used as an argument in favour of their construction, but it appeared to him to bear the other way, because it could not have been intended to make a grant in perpetuity contingent upon an office about which there was no element of perpetuity. He had now stated the grounds upon which the Committee had decided, regarding the treaty as an agreement between private parties; but he doubted whether he could have consented to treat this as a Private Bill if there had been no opportunity of obtaining the decision of the House upon the great constitutional questions which it involved. He would now state in what manner he thought the matter ought to be settled. Agreeing with Sir George Anderson that the failure of male heirs was not 1657 contemplated at the time of the agreement, he thought the agreement ought to be interpreted by the words which had been used, and the stipend dealt with as an hereditary pension. It was, however, a question whether that part of it which was evidently intended to meet an expenditure which now no longer existed—the office of Nawab having been abolished—ought not to be retrenched. But, as it was by no means clear who were the heirs of the Nawab—as it was uncertain whether the promoter of this Bill would have any interest in the pension, supposing it to be hereditary, the money ought to be placed in the hands of trustees, there to remain until that question had been decided. He would now leave the House to deal with the matter in the manner they thought most consistent with the justice of the case, the rights of individuals, the dignity of the British Crown, and the honour of the British name.
said, that as a Member of the Committee, he had carefully examined the whole case, and was perfectly satisfied that there had never been a juster claim set up than that of the promoter of this Bill. In his opinion the original treaty was accurately worded, and there could not be the slightest doubt as to its construction, or that it conferred an annuity in fee on the Nawab without any limitation or relation to the continuance of the Nawabship. That was the construction which had been put upon the treaty by Sir George Arthur and Sir George Anderson, and he was quite sure it was the right one. The present claimant had now been fourteen years—half his lifetime—prosecuting his claim, and it was time that the question should be finally settled. The East India Company had been for that period trustees of this pension, and they ought to be compelled to give an account of its appropriation. By the Act of Parliament the right of appeal to the Privy Council in this particular case had been taken away, and one object of the Bill now before the House was to bring the decision of the Government at Bombay with respect to the heirship to the Nawabship before the Judicial Committee, and to have it determined whether that decision; was in conformity with law or not.
said, that, after careful deliberation, he had come to a conclusion on this question totally opposite to that formed by the right hon. and learned Gentleman who had just addressed the House. 1658 The Court of Directors of the East India Company had not the smallest personal interest in this matter, and their opinion on the subject was as honestly and conscientiously entertained, and was entitled to the same degree of respect, as the opinion of those who supported the present Bill. The East India Company were trustees for the public of the revenues of India, and were bound to do everything in their power against attempts to appropriate it. The only question to be determined was, whether the stipend was given to the heirs of Nasr-ud-Deen being Nawabs, or to his heirs generally. The merits of the whole matter were to be found in Lord Wellesley's instructions for the conduct of the treaty, that treaty itself, and Governor Duncan's diary of what took place. If all those papers were read in connection with each other, he believed that they would be found to support the view taken by the East India Company. They must be regarded as State papers, and not as mere negotiations between private individuals, and the fair conclusion to be drawn from them was that which had been adopted by successive Governors General of India, by successive Courts of Directors, and by no less than three successive Presidents of the Board of Control. The right hon. Gentleman the Member for Oxford (Mr. Cardwell) admitted that Lord Wellesley fixed the quantum of the pension in reference to the continuance of the Nawabship, and for his part he believed that the whole thing was fixed in relation to such continuance. It was manifest that when in the course of the negotiation with Nasr-ud-Deen, Governor Duncan spoke of the perpetuity of the pension, he referred to the future perpetuity of the Nawabship (which had not previously been hereditary) in the family of Nasr-ud-Deen. The sole object of the Company was to protect the revenues of India; but they were willing to place a liberal and kindly interpretation upon the treaty, and to assent to the proposition of the Board of Control.
§ MR. WIGRAM
said, he was opposed to the Motion of the hon. and learned Member for East Suffolk (Sir F. Kelly). If the treaty were looked to it was impossible not to see that it was at least doubtful if the East India Company were not right in the course it had taken. He (Mr.Wigram) objected to the Bill, because there being this reasonable doubt, that the case in question was not foreseen, the pension ought to have terminated with the extinction 1659 of the legitimate heirs to the Nawabship. The Bill, moreover, proposed to put an absolute interpretation on the treaty, and to completely shut up the question for ever, by making the pension payable even though the Nawabship was extinguished. He desired to point out that the justice of the case would be met by giving parties claiming a right to a suit in equity on the subject; and he was satisfied a court of justice would put the proper construction on the treaty. If the question was to be treated as a judicial question that was the proper course to take. He was opposed to the Bill on various grounds; amongst others, that it was not a matter to be dealt with by a Bill, but by an Address to the Crown, and he therefore deprecated any Parliamentary enactment on the subject, for the purpose of saddling the revenues of India with an additional burden.
§ MR. G. BUTT
said, he wished to explain that, as a Member of the Committee, the Bill had been framed and settled so as to leave it open to either party to proceed before a judicial tribunal. He would also state that, as the revenues of Surat were now paid to the East India Company, they would pay the amount claimed out of those revenues.
MR. DANBY SEYMOUR
said, that the right hon. Gentleman the President of the Board of Control, not thinking it his duty to divide the Bill into two parts, as the right hon. Gentleman suggested that he ought to have done, had left it for the Committee to do, or, at least, to recommend such a course. The right hon. Gentleman had also stated that the Government ought to have referred the matter to the Judicial Committee of the Privy Council. The President of the Board of Control had been anxious to take that course, but he had been informed by the highest judicial authority in the country that it was inadmissible, as the Privy Council had no power to consider the question. The merits of the case having been so fully gone into, it was unnecessary for him to touch upon them, and he would content himself, therefore, with expressing the highest esteem and respect which he entertained for Meer Jaffier personally. He was of an ancient and respectable family, he had no personal interest in this matter, but was merely seeking to do what he conceived to be his duty to his children.
§ MR. CARDWELL
said, he must state, 1660 in explanation, that it was not competent for the Committee to divide the Bill into two parts, unless the House had specially instructed them so to do.
§ The Bill was then ordered to be read a third time.