No; I remember in some parts of Behar the evidence was most extraordinary; there were men living in a state of freedom, and nobody exercising any rights over them; but they were people who belonged to a slave tribe, and upon whom the taint of slavery had descended from their ancestors; and there were cases in which those men were sold; they were sold at a very cheap rate, because it was a great chance whether the purchaser would ever get hold of the man he had bought. 2116. If the person of the slave was once secured, the right was enforced? Then the right enforced at that time would have been recognized by our Courts. 2117. But it is so no longer? It is so no longer. 2118. Therefore, as far as regards the British territory, the right of slavery is extinct? The legal right of slavery is entirely extinct; but, de facto, slavery is in existence. 2119. Would the master have no power of compelling any service on the part of his slave? He would have no power; because, if he were to attempt to compel the slave by imprisonment or punishment, the slave would have a right to go into Court, and bring an action of assault, and the master would not be able to answer that the plaintiff was his slave. 2120. Would any British subject in any part of British India, if he became the purchaser of a slave, fall under the law which makes it felony to purchase a slave? I think not there was a British subject, a Mr. Brown, who was a large proprietor of slaves in Malabar; and that was after the English Abolition Act; the English Abolition Act does not apply to British India. 2121. You have said that the slaves were only sold with the land; are they ever bought in one district and transported to another? Yes, sometimes that was done; but the state of slavery was different in different parts of India. In Malabar, I believe, they were all adscripti glebæ, and bought and sold with the land; and Mr. Brown, whom I mentioned, possessed slaves of that kind, exercising the rights of a master over them. He had a pepper plantation in which he employed them. 2122. Are the Committee to understand, from what you stated before respecting the opposition that was made to any inquiry being instituted into the state of slavery in the districts where it prevailed, that in consequence of that, no inquiry did take place by the authority of the Government of India? No; when we found that the Council of India was not disposed to permit us to go into the districts in which slavery prevailed, Assam and Malabar for example, we then took the evidence of such persons as we could find in the neighbourhood of Calcutta. We took evidence from the owners of slaves themselves and others who had resided in the districts in which slavery was most common. We also had Hindoo lawyers upon the law, and the practice of the law, as between master and slave; we took a great deal of evidence. I believe it is the only specimen of evidence of that kind which has been taken in India, which forms the Appendix to our Report. 2123. You have stated that the British Abolition Act does not apply to India; but would not the Act against slave-trading effectually provide against the introduction of African slaves into India? No doubt; the voyage would be piracy. 2124. Have there not been some proceedings taken at Bombay against British subjects who have been directly or indirectly concerned in bringing in slaves from the Imaum of Muscat's territory? Yes; there is no doubt that for British subjects to bring slaves from any part of the Imaum of Muscat's territory into India is penal. 2125. By "British subjects" do you mean Europeans? I should say that if an East Indian, who is a subject of the Queen, were to engage in such a transaction, he would be punished. C. H. Cameron, 7th June 1852. C. H. Cameron, 7th June 1852. 2126. When you say that British subjects have engaged in the slave trade at Bombay, do you mean natives? I cannot undertake to say. 2127. Do you recollect that, by a regulation of the Governor-general in Council, the English law was made applicable to slavery in Scinde? Yes, I recollect that. 2128. Were those regulations as to slavery extended also over Scinde ? Lord Ellenborough extended the English law over Scinde by a special Act of his own, he being the Governor-general, with the full power of the Governorgeneral in Council. 2129. And over the Punjaub in the same way ? The Act of the Council of India does not extend over the Punjaub. 2130. Does it require a specific Act to extend it over each successive acquisition of territory? Yes; but that subject opens a large question with regard to all other laws as well as that respecting slavery. The law is in a very anomalous condition indeed. The question arose in a late case with regard to Serampore. Serampore was a Danish settlement on the Hooghly, and was lately ceded to the Company by the Crown of Denmark. It so happened that at the time that this cession took place, there was no legislative quorum of the Council of India, and consequently a difficulty arose. There were apparently no means of making the law of Serampore what it ought to be, so as to be administered by the Company's judges, and also what it ought to be according to the treaty; for the treaty specified certain things that should be done with regard to the law of Serampore. We had to consider how it was possible to get over this difficulty; I thought, but with great diffidence (for it is an extremely difficult point of constitutional jurisprudence), that the power which exists in the Queen, independent of Parliament, of legislating for newly-acquired territories, must be considered as delegated to the existing Executive Government in India, together with the general delegation of the Sovereignty of India, and upon that we proceeded; and there was a proclamation of the Executive Government issued, stating what was to be the law of Serampore. The Company's judges had very great doubts about whether it was right to obey this proclamation, the proclamation not being a law, but so the matter was settled; at least, that was the last I heard of it. 2131. They acquiesced? I believe they ultimately acquiesced it was of no very great importance as regarded Serampore, because it is a very small place, inhabited either by Europeans or by Bengalese, who are very submissive; but the same is the condition, I apprehend, of the Punjaub. Unless that doctrine of mine is good law (which Sir Lawrence Peel, who is a very high authority, said, when I consulted him as a private friend, that it was not), I do not see on what ground any legislation by the Executive Government can go on constitutionally, either in Scinde or in the Punjaub. 2132. Would not that apply to the largest portion of India? It would only apply to such parts as have not been brought under the legislation of the Council of India. 2133. Is there any definition of the geographical boundaries over which the legislative power of the Government of India extends? No, there is not. That is one great difficulty that is constantly arising from the condition of the native Princes; it is always very doubtful whether we can legislate for their territories, or whether we cannot. The last Charter Act, by giving a definition of the legislative power, has in that respect narrowed it. When we passed the Thuggee Acts, there is no doubt that what we did was ultra vires. For the sake of convenience, we overstepped the power. 2134. In what respect was it ultra vires? It was necessary to provide for the offences of Thuggee in other territories, such as Oude, and in the Nizam's territories; they were very glad that Thuggee committed there should be punished; but the words used for that purpose were so large, that if any crime of Thuggee was committed in France by a French subject, it would be punished by the Indian Courts, which would be contrary to the law of nations. 2135. Was 2135. Was not that Act passed while Lord Ellenborough was the Governorgeneral? I do not remember; there have been several Acts relating to Thuggee. Some of the Acts were passed while I was fourth member of Council, and I always felt the great difficulty that we were under. 2136. Practically there would be this limitation, that the law would only apply to those districts in India where we had administrative Courts established? But supposing that Thuggee were carried on upon the frontier of Oude, and that part of the persons engaged in it were inhabitants of Oude, and the crime. was committed beyond the boundary, those persons would be triable in our Courts, and, I believe, would be executed. 2137. If they could get hold of them? Yes; but it might be said that the Indian Legislature had overstepped its authority, and that the men must be acquitted; and it would be very inconvenient if, in the eyes of the natives, there appeared to be any conflict between the Government of India and the judicial authority. 2138. Have there not been in most cases diplomatic transactions between the Government of India and the Sovereigns of the native States, by which the Government of India were authorized to exercise those powers in the native States ? I believe there have; but even supposing they had got the permission of the Sovereign, and supposing him to be an independent Sovereign, I do not apprehend that any Sovereign can grant to another a power to legislate in his territories; if he wishes another Sovereign to exercise that power, he must cede the territory. 2139. Is it not the case in Oude and in China also? The distinction I take is this: there is no doubt the Emperor of China may grant to the Queen the right to legislate for and to punish in China the Queen's own subjects for offences committed in China; but I apprehend the Emperor of China cannot grant that power to the Queen over the subjects of France, or Austria, or Prussia; that would be a cause of war if the Queen were to legislate for and to punish a Frenchman in China. 2140. In the case of the Thuggee Act, you say that the native Princes were anxious that the law should be applied within their territories; but in the case of this law, which has been recently passed, with respect to the conversion of persons from one religion to another, is that Act applicable in all the native States of India? I should think not; and nothing analogous to Lord Ellenborough's law has, I believe, taken place in the Punjaub. 2145. You stated that the inconvenience from the want of a ler loci would be more strongly felt in proportion as the number of Europeans in India increased? Yes, certainly I did; a great number of persons have gone into the interior of India as indigo planters, and in connexion with steam navigation companies, and a great variety of commercial enterprises of that kind. 2146. Not being European-born subjects of the Queen? Most of them are. C. H. Cameron, 7th June 1852. C. H. Cameron, 7th June 1852. 2147. That inconvenience would not apply to them? No, the inconvenience of having no law would not apply to them; the Court would administer the English law to them. This inconvenience would apply to them, that the English law is very little known by the Mofussil Courts. That would be remedied by this Act, because they would then have before them a complete code of the law which they are to administer. 2148. Would you propose that this code should be at once proclaimed over the whole of the Indian dominions, or that it should be proclaimed over different places successively, after due inquiry as to its fitness for each part of the country? I would recommend that it should be proclaimed at once as to the whole, because all the necessary distinctions are contained in the Act itself. 2149. Would not it in many cases require some time to enable the gentleman who is to administer the law to make himself master of it? They do administer the law now, but they administer French law to the Frenchiman, and Spanish law to the Spaniards. Instead of that, they would have nothing to do but administer this code. No doubt they must learn it. I will beg leave to read an extract from a minute of mine, which was in answer to Sir Herbert Maddock's minute in opposition to the lex loci. Sir Herbert Maddock says, "As to the necessity, in the first place, of declaring the substantive law of the place in these territories, which the Law Commissioners say is doubtful, but which I should rather say is no matter of doubt, as it is never referred to or inquired after in the Company's Courts, the arguments adduced by the Commissioners have failed to convince me that such a measure is necessary. Those arguments might be strengthened if the basis on which they rest was more clear and better defined. We want a precise definition of what is meant by the negative term every person not being a Hindoo or Mahomedan;' without this it must be all vague conjecture who are the people, and what are their numbers, that we are making the subjects of our legislation." That is Sir Herbert Maddock. My answer is, "Now it is of the very essence of a lex loci that the definition of the persons subject to it (except in the rare case where it includes every person in the country) should be negative, and to say that you will not have a negative definition is simply to say you will not have a lex loci. In all countries and in all ages the persons subject to the ler loci, when there is one, are all persons in the country who do not fall within any of the positive descriptions of classes for whom special provision has been made. Who are the persons subject to the lex loci in England? All persons in England who do not fall within the excepted classes of foreign ambasadors, Jews, &c. It is always the excepted classes that are defined, or described in positive terms. It is no doubt important in all countries that great care should be taken to make the proper exceptions. In this country, it is pre-eminently important, because the classes to be excepted are so numerous, and so deserving the benevolent attention of the foreign Government which has undertaken to rule and protect them. The exceptions made by the Draft Act are, first, Hindoos and Mahomedans: this exception is perhaps too unqualified; perhaps the Hindoos and Mahomedans ought only to be excepted in respect of so much of their law as is now administered to them under the statutes and the regulations, and brought under the lex loci for the rest; secondly, all persons professing any other than the Christian religion in respect of marriage, divorce and adoption; thirdly, all races and people not known to have been ever seated in any other country than British India in respect of any law or usage immemorially observed by them, and now enforced by the Courts. This last qualification, which perhaps ought to be more distinctly expressed in the Act, is necessary, lest we should unawares be giving a sanction to laws and customs which the Courts do not now enforce on account of their immorality, or for other reasons. The third exception will, I apprehend, give to 'Budhists Jains, the many aboriginal tribes of Gouds and Bheels, &c. which occupy an extensive region in the centre of Hindoostan, the Mugs of Arracan, and the Seiks of the North-West districts,' all the exemption from the lex loci which it is right they should have." 2150. Who were the members of the Law Commission when you were first associated in their labours? I was appointed at home; I was the only person sent out from England; when I got to India, there was no member from Bengal; Sir William Macnaghten naghten was appointed, but declined to act; Mr. Macleod was the member from Madras; Mr. Anderson, who is now Governor of Ceylon, was the member from Bombay; and Mr. Millett, who afterwards became a member of the Commission, was the secretary. 2151. What have been the proceedings taken with respect to any vacancies in the Law Commission? When Mr. Anderson and Mr. Macleod resigned, their places were filled up by Mr. Borradaile for Bombay, and Mr. Daniel Eliott from Madras; Colonel Young was also a member for a short time, appointed in India: when Mr. Millett was made a member of the Law Commission, he having been first secretary, Mr. Sutherland was appointed secretary; after that time several vacancies occurred from time to time, and have never been filled up, which I think is another illegal proceeding. It is true that the statute does not say that the number shall always be kept up to the extreme number of five; but it is clear that the statute did not intend that the Law Commission should be allowed to perish for want of members; and, therefore, I think, though this is not a direct contravention of the letter of the law, it is what jurists call a proceeding in fraudem legis. 2152. What is the present state of the Law Commission? The present state is utter extinction. 2153. Without one member? Without one, as far as I know: when I left India, Mr. Eliott was a member and secretary, and I myself was President; that was the whole of the Law Commission, consisting of a President and secretary, without any member; since that, I believe, it has perished altogether. 2154. It has been stated to the Committee, that the fourth member of the Legislative Council still acts as a Law Commissioner, and that he is joined by another member of the Council? I was not aware of that; I should like upon that subject to read to your Lordships a minute of my own, arising out of a proposition made by Sir Herbert Maddock (I do not know whether under direction from home or not), to remove Mr. Daniel Eliott, who was the only remaining member of the Law Commission, from the Law Commission, and to attach him to the legislative secretariat of the Government of India; upon which I wrote this minute: "The appointment of Mr. Eliott, as officiating secretary to the Government of India, in the legislative department, he still continuing to perform his duties as Law Commissioner, might, I think, be attended with some advantages; but this does not appear to be what the President contemplates;" (Sir Herbert Maddock was then President of the Council of India, Lord Hardinge being then absent); "at any rate I am compelled to differ from him in what he lays down as the basis of his proposition. The President says,So long a time has elapsed since we received any instructions from the home authorities on the subject of the Law Commission, and its continuance or dissolution, that it must be presumed not to be their intention to fill up the vacancies which have taken place in the number of its members;'" so far Sir Herbert Maddock. Then I go on: "Now the length of time here spoken of seems to me to lead to the contrary presumption. The Court of Directors say in their letter of 29th November 1843, It is probable that an application will be made to Parliament at an early period of next Session for authority to put an end to the Commission. In the meantime we desire that you will not fill up any vacancy which may occur amongst its members, and that you will be prepared to give directions for closing the Commission if the wisdom of Parliament should concur in that measure."" That was all perfectly legal and constitutional, I think, but what followed was not: "Not only was no application inade to Parliament at an early period of the Session of 1844, but that Session, and the two following, have been suffered to pass away without any such application. From this it appears to me an irresistible inference that the Court of Directors have either ceased to desire the dissolution of the Law Commission, or are satisfied that the wisdom of Parliament will never concur in that measure. The direction, therefore, to this Government not to fill up any vacancy in the meantime, that is, between the 29th of November 1843, and the early part of the Session of 1844, can, I think, only be considered as remaining in force during that interval, and as much longer as the unexecuted intention of applying to Parliament may C. H. Cameron, 7th June 1852. |