INDIAN JUDGES AND BRITISH CRIMINALS.
THE opponents of the Ilbert Bill are very bad tacticians. Their wild exaggeration and violence have caused a reaction in favour of the Bill, which is pretty certain to en- sure its safety. Had they conducted their opposition temperately, and limited their objections to the question of opportuneness, after the example which we set them when the bare outline of the Bill first reached this country, it is not unlikely that they might have carried public opinion with them. But there is nothing which the public resent more than an attempt to impose on their ignorance. The mass of people in this country know themselves to be very ill-informed on Indian questions, and their natural impulse is to give credit to the first man of character who volunteers to
instruct them. If, however, they find that they have been deceived, they are apt to go to the opposite extreme, and believe all they hear on the opposite side. This is just what is now happening in the case of Mr. Ilbert's Bill. When the question began to be first agi- tated, the British public were profoundly ignorant of the whole subject, and were inclined to believe that Lord Ripon had, with the best intentions, made a serious mistake. But the indiscriminate fury of the opponents of the Bill has provoked a host of champions into the arena, and these have had no difficulty in refuting the heterogeneous objections urged against it, and even in carrying the war into the enemy's camp. Lord Ripon's assailants have had the imprudence to attack the Bill on its merits, and not merely on the ground that it is a premature step in the right direc- tion. Their arguments go the length of denying that any step at all is needed in that direction. They appear to regard the existing state of things as ideally the beat, and thus plainly tell the teeming millions of our Indian fellow-subjeets that they never can expect equality of rights with Europeans in the Civil any more than in the Military service of the Crown. The perilous folly of such a policy is so self-evident as to require no demonstration; but we may relate a vivid illustration, which lately came to our knowledge, of the mischief which it is silently producing in the Native mind. Two years ago, an English traveller visited an interesting old temple in the interior of India. He was shown over the building by one of the priests of the temple, who wore no other garment than a loin-cloth. This man not only displayed an erudite familiarity with the antiquities of the temple and of the surrounding district; he was also an accomplished Latin and Greek scholar, and thoroughly well versed in English literature. The English visitor ventured to ask for an explanation of the striking contrast between the priest's outward mien and mental accomplishments, and expressed his wonder that one so cultivated could not do something better for himself than earn a scanty livelihood by acting as guide to chance visitors to the temple. The priest's answer was to the following effect :—"I am a high-caste Brahmin, tracing my lineage back to a line of ancestry more ancient and not less noble than that of the proudest of your English Peers. I studied and graduated at the University of Calcutta; and on taking my degree, I had to choose my career. On looking about me, I found that I could aspire to be a guard on one of your railways, or a clerk in one of your mercantile esta- blishments, but that scarcely any career was open to me to which an English gentleman would think of aspiring. S.) I thought, on reflection, that I should be consulting my dignity and self-respect better by retiring to this temple, and living the kind of life which has ex- cited your wonder. Do you, English, imagine that your rule is popular in India? Believe me, it is not. And how can it be ? We give your Government all the credit that it deserves. In the ordinary affairs of life it is a just Government ; and it has given this country peace. But it is a foreign Government. Your English officials fill all the posts worth having, and the native gentry have no career. Put yourselves in our position. If, in an evil day, France were to conquer you, and turn your country into a French dependency, would you be content., pro- vided your foreign masters gave you peace and did justice between man and man, while Frenchmen officered your Army and Navy, and filled nearly all the posts worth having in your Civil Service ? You know you would not ; and how can you expect us to be satisfied with your rule over us ?"
That is a dangerous feeling, which it is surely desirable to conciliate, if possible. But how can it be conciliated, if it is proclaimed to the educated natives of India that they have no prospect of an improving future ; that no degree of qualification, no merit, however conspicuous, will ever entitle any of them, out of the three Presidency towns, to sit in judgment on the lowest ruffian who claims the privilege of being a European ? That is the ground which the adversaries of Lord Ripon have taken up, and their cause was lost from the moment they committed themselves to so preposterous a policy. The other side had only to put forth a plain statement of facts, and the opposing arguments stood openly refuted. Perhaps the most effective defence of the Ilbert Bill that has appeared in England is Mr. Macrae's article in the current Fortnightly Review, on " Criminal Jurisdiction over Englishmen in India." Its argumentative effectiveness is largely due to its clear and compact statement of facts. A summary of the facts will show our readers that if Mr. Ebert's Bill should pass into law, there is nothing in it, on its merits, which need cause any alarm. Ever since 1836, the administration of justice in civil cases has been ex- ercised by Native judges and magistrates over Europeans as well as natives throughout India. At this moment the Judges in the Courts of First Instance are nearly all natives, "and so well have they discharged," says Mr. Macrae, himself a practising barrister in India, "the responsibility put upon them, that it is a notorious fact that in the great majority of cases where appeals have been preferred from their decisions, and the immediate Court above under an English Civilian has differed from them, their decisions have been re- affirmed by the highest Courts of Appeal, whether the High Court or the Privy Council." This certainly is a remarkable tribute to the professional competency as well as to the in- tegrity of the Native Judges. Primi facie, then, it seems a flagrant anomaly that Judges who have established so high a reputation as administrators of the law in civil cases, should
be deemed incompetent to adjudicate on the most trivial criminal charge brought against a European in the interior of the country, or, to be strictly accurate, anywhere outside the three Presidency towns. So indefensible did Lord Dalhousie consider the anomaly, that his Government introduced, in 1849—as we stated on a former occasion—a Bill for extending the criminal jurisdiction of Magistrates, whether Native or English, over all British subjects in India, without distinction of race. But before the scheme was completed the Mutiny broke out, and made it impossible for a time to carry out Lord Dal- housie's policy. In 1877, however, an Act was passed "empower- ing Presidency Magistrates, whether natives or not, to exercise the same criminal jurisdiction over European British subjects as over natives within the limits of the Presidency towns." Several Native magistrates have exercised the full jurisdiction, thus conferred, to the entire satisfaction of the European com- munity ; and, as a matter of fact, the number of Europeans over which Native Judges now exercise jurisdiction in criminal cases embraces three-fourths of the whole European popula- tion of India. But although Native Judges are allowed to sit in judgment on Europeans in criminal cases within the limits of the Presidency towns, and in civil cases without any limits at all, although also they have given universal satis- faction where they have been tested, yet they are still debarred from trying any criminal case when a European is concerned outside the limits of the Presidency towns. Mr. Macrae gives some striking illustrations of the way in which this system works. Last year, Mr. Gupta, a native gentleman, after officiating for some time as Presidency magistrate in Cal- cutta, to the entire satisfaction of the British community, was transferred to a more responsiole appointment in the interior, where, by reason of the provisions of the existing law, he was incapacitated from trying even the most petty charge against a European British subject. Another native civilian and English barrister, Mr. Dutt, "who had gained the second place from amongst several candidates in the examination in this country for admission into the Indian Civil Service, and who had come to be appointed Joint Magistrate of the import- ant district of Dacca, was suddenly deprived of that appoint- ment, and removed to a less eligible district, on the ground that the opening of a new railway was bringing a number of Europeans into the Dacca District." Is it surprising that disabilities ennliling grievances like this should be felt as galling and degrading by educated natives ? It was with a view to remedy these grievances that Lord Ripon determined on the policy which is formulated in Mr. Ebert's Bill,—of the opportuneness of which we have expressed our own grave doubts, but the abstract merits of which are quite distinct from the opportuneness. Now it is the Bill on its merits that has been so violently assailed. And even those who have, like ourselves, questioned its opportuneness, must do Lord Ripon the justice of admitting that he took the best advice available before taking action. In a confidential circular he solicited the opinions of all the Local Governments of India on the Bill, and they all reported in its favour, with the single exception of Coorg, " the smallest of them all." One of these reports, curiously enough, confirms a suggestion which we made on this subject six months ago, namely, that Native Judges in the interior would be likely to deal more leniently with Europeans than with natives. " I think," says the Officiating Judicial Commissioner of Oudh, "they would, as a rule, unduly favour the Europeans." But., after all, what does Mr. Ilbert's Bill propose? It is extremely limited in its character. It removes a disability, by making qualified natives eligible to offices in- volving jurisdiction over Europeans in criminal cases. The exercise of this potential right, however, is so circumscribed and guarded, that for some years to come not more than three or four Native Magistrates all over India are likely to enjoy it. The Bill confers the power to try criminal charges against European British subjects upon such persons only as may be nominated and elected for their proved fitness for the position. " The single alteration which we propose to make," said Mr. Ebert himself, in explanation of his Bill, " is this. We pro- pose to substitute for the disqualification arising from race a qualification depending on tried fitness." In fact, the Judges of the High Court of Calcutta, in the joint letter which they have published against Mr. Ilbert's Bill, dwell on its extreme moderation as an argument against it. "There are only four officers," they say, " who could at present "and " for some time to come," benefit by the provisions of the Bill. " As regards the rest, no question is likely to arise for several years." But if for several years to come only a mere handful of Natives can be appointed Judges under Mr. Ilbert's Bill, that is surely a reason why no great harm is likely to come of it. The extravagant agitation raised against it will, by force of the recoil, help it to pass into law ; and although we should ourselves have much preferred to wait awhile, we have too much confidence in the good-sense of our countrymen in India to doubt that they will soon reconcile themselves to a change which will affect but few of them for a long time to come, and which will not affect those few so prejudicially as some of them now fear. The provisions of Mr. Ilbert's Bill have always been the law and practice of Ceylon under British rule, and have been found to give complete satisfaction to British residents there.
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