CONDUCT OF THE ADVOCATE-GENERAL AND THE BOMBAY JUDGES, IN THE CASE OF MR. FAIR.

To the Editor of the Oriental Herald.

SIR, IN the article on 'The Bench, the Bar, and the Press, at Bombay,' contained in your publication for February, it is stated, that Mr. Norton, the Advocate-General, when directed by the Judges of the Supreme Court, to conduct the prosecution ordered by the Court against Mr. Shaw, for a contempt, not only refused to do so, but had accepted a retainer for Mr. Shaw, to conduct his defence, and had farther stated, in reply to a question from the Chief Justice, that he did not "consider. himself, by any means, bound to proceed against those who might offend against the Court, unless specially directed by the Government to do so." If your information on this part of the subject be correct, it affords a more convincing proof, than any thing we have yet seen, of the hostility of the Bombay Government to the Supreme Court, and that, to gratify their hostile feelings, they do not hesitate to sacrifice the pecuniary interests of their employers, which it is their bounden duty to protect.— You are, no doubt, aware, that the Advocate-General, at Bombay, is the retained Counsel of the East India Company at that Presidency, and that a large monthly salary, as fixed by the Court of Directors, is regularly paid to him from the Bombay treasury. It is also well known that the East India Company defray all Crown and Court prosecutions in the King's Courts in India; there being no fund upon which the Court could make an order for the payment of such expenses, as all fines imposed by the Courts, in course of their judicial proceedings, are by law, the property of the Company. Now, as Mr. Irwin (another Barrister) is employed to conduct the prosecution instituted against Mr. Shaw, by order of the Court, his fees in the cause must be paid by the East India Company, whilst their own retained advocate, Mr. Norton, (who would have conducted the cause without any fees, beyond the monthly salary of, I think, 2000 rupees, which he receives from Government), is employed by Mr. Shaw, to conduct his defence; and this has taken place under the eye of the local Government, and we must naturally presume with its sanction and concurrence.

How far it is competent for any Barrister to refuse compliance with an order of the Judges, to conduct a prosecution in support of the dignity of the Court in which he practises, let the "learned in the law" determine; but it is obviously improper, if not altogether illegal, for any Barrister to undertake the defence of a party, when he knows, that a client from whom he receives a monthly salary or general retainer, must bear all the expenses of the prosecution. I think, therefore, that Mr. Norton's conduct on the occasion, has been at least unprofessional, if not something worse; but the conduct of the Bombay Government, in permitting such a dereliction of duty, when it rested with them to prevent it, is, if possible, still more reprehensible. They well knew, that the expense of prosecuting Mr. Shaw, must be paid from the Bombay treasury, if any other than the Advocate-General was employed in doing so; besides,

Conduct of the Bombay Judges in the Case of Mr. Fair. 83. what can possibly tend more to shake the confidence of the natives of India, in the power of the King's Courts to protect them against oppression, and afford them redress against the Company and their servants, than the proceeding in question? A civil servant of the Company, committing a violent assault on an officer of the Court, within its own walls, and when the Court was sitting; and the Advocate-General, the retained Counsel of the Company, and whose professional services are known to be at the disposal of the local Government, not only refuses to prosecute in support of the dignity of the Court, but undertakes the defence of the offending party.

The line of conduct adopted by the Judge, in consequence of the misrepresentations contained in the Bombay Gazette, is not, I think, on a review of all the circumstances of the case, liable to the objections you have stated.

There is nothing in the correspondence, quoted in the Oriental Herald, to show, that Sir Charles Chambers ever called on the Editor of the Gazette for an apology; on the contrary, it appears by the correspondence published in the Morning Chronicle, of the 27th of January, that the call was made by Government; and it is of some importance to notice this circumstance, because such a proceeding on the part of Sir Charles Chambers, had it taken place, would have been inconsistent with the dignity of his situation, but there appears to have been no communication whatever on the subject between the Judge and Mr. Fair,

That there are many wrongs for which it is difficult to find a legal remedy, is no doubt true, and the wrong committed by the Bombay Gazette against the Supreme Court, in misrepresenting its proceedings, is assuredly of that description; for if the Court had adopted the course which you think they ought to have done, the evil would in all probability have been thereby rather increased than diminished. Supposing the statements that appeared in the Gazette to have been libellous, treating the matter as a contempt would have been an arbitrary mode of proceeding, as it makes the Court prosecutors, jury, and judges, in their own cause; and although they would have been legally right in doing so, yet the exercise of such a power is so much at variance with the spirit of a free constitution, that I believe there will scarcely be found an instance of any British Court of Justice having adopted it in modern times, and it would now-a-days be quite impossible to reconcile the feelings of Englishmen to the justice of such a proceeding. The Court might, no doubt, have proceeded against the Editor or proprietors of the Gazette, by information or indictment, but the expediency of that mode, I think very questionable, as the present state of the Bar at Bombay, where, as you observe, "party spirit pervades every class of society," would have given the accused (in a case where the dignity of the Court, and character of the Judges were concerned) advantages utterly inconsistent with strict justice, and would most likely have led to an acquittal, under the influence of those highly excited feelings which naturally bias the judgment. I appeal to your own knowledge and experience, whether such a result might not have been expected, and what would then have been the consequence? The Bombay Gazette, supported and influenced as it is by a member of Government, avowedly hostile to the Court, would have gone on publishing libel after libel with impunity, and there would have been no means of counteracting the effect of its misrepre

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Conduct of the Bombay Judges in the Case of Mr. Fair.

sentations; for the Bombay Courier, being precisely under the same influence and control, would have either joined the Gazette in giving publicity to the most gross and unfounded calumnies, or it would have been silent on the subject, which would have had the same effect; the Barristers would have also joined in arraigning the legality and justice of the Court's proceedings (as they had done on former occasions), and thus the dignity of the Court would have been compromised, the character of its judges vilified, and the administration of justice impeded; for what Native or European in India could have felt confidence in its decisions, under such circumstances. The situation in which Sir Charles Chambers was placed, by the misrepresentations published in the Bombay Gazette, left him only a choice of difficulties; and I think that he exercised a sound discretion in claiming the interference of Government, in whose hands alone the press remained. How far Government may be right in the line of conduct they adopted towards Mr. Fair, in consequence, is yet to be determined. The responsibility of that measure, however, seems to rest with the Governor alone; for had he supported the authority of his Majesty's Court at Bombay, as it was his duty, and ought to have been his pride to do, the disgraceful scenes which have recently taken place at that Presidency, never would have occurred.

"That there were," as you very justly remark, "omissions and colourings in the reported proceedings of the Supreme Court, in the Paper edited by Mr. Fair, calculated to affect the reputation of the Judges," I think, with you, there is no room to doubt. Mr. Fair was called upon by Government for a public acknowledgment of these "omissions and colourings," with an apology, for having given publicity to an incorrect report of the Court's proceedings; his correspondence with the Bombay Government, shows that he refused to do either, and we are consequently left to infer, that he must have relied on the secret influence of some of those in power, being exerted in his behalf, or cared not for the con-sequences, whatever they might be.-What other conclusion is it possible to come to, from a review of the correspondence in question?

The determination promulgated by the present Chief Justice of Bombay, so soon after his arrival there, to afford the protection of the Court, to all who chose, and had a right to appeal to it against oppression and wrong, and more particularly the helpless natives of the country, naturally aroused the jealousy of those who had been long accustomed to respect no law but their own will, and to commit acts of oppression and wrong with impunity, whilst the measures he adopted to check the rapacity of the practitioners of the Court, and to administer speedy and cheap justice to the suitors, were strenuously opposed by the Barristers, whose pecuniary interests were likely to suffer by the salutary regulations he introduced. The opposition of such a Bar, however, would of itself have been feeble and ineffectual; but supported and encouraged as it was by Government, or at least by some of the most influential members of Government, it is not to be wondered at, that a party spirit against the Court was generated in the settlement, soon producing that open opposition and interference with its proceedings, which it could not permit consistently with a due regard to its own dignity, and the impartial administration of justice. Is it not repulsive to the idea of independence in his Majesty's Courts to suppose that any man, or set of men, within their jurisdiction, however powerful, should be able to control or

Inaccuracy of Mr. Astell's Assertion respecting Mr. Arnot. 85 influence them? would not a Court, so influenced, soon become an instrument of the most dreadful tyranny? In India the only palladium for the injured and oppressed, is a British Court of Justice, and the Judges cannot be too cautious how they suffer any part of its independence, dignity, and legitimate power, to be encroached upon.1 Had Sir Edward West permitted fraud and extortion to pass unnoticed, had he, in short, neglected his duty as a Judge, and been indifferent to the state of confusion and disorder in which he found the Court on his arrival at Bombay, or had he never made public his determination to protect the natives against oppression from any quarter, he would have continued popular with the ruling authorities there, and we should have heard nothing of the dissensions or party spirit, which has of late prevailed to such a disgraceful extent in that settlement.

A. B.

INACCURACY OF MR. ASTELL'S ASSERTION RESPECTING

MR. ARNOT.

Ir will perhaps be in the recollection of our readers, that, when the case of Mr. Arnot was last brought before the Court of Proprietors, the Chairman, Mr. Astell, who, on all occasions, pretends to more accurate information than those he addresses, said that the Directors had no official information before them on the subject; but added, that he had learnt, unofficially, that, on Mr. Arnot's return to Bengal, after being burnt out of the Fame, and thrown back naked and destitute upon the unhealthy shores of Bencoolen, the Governor of that Presidency had permitted him to remain in India; and that he believed he spoke the sentiments of the Directors generally, when he said, that if this were the case, they would have no disposition to disturb such an arrangement! The hollowness of this affected benevolence is not more apparent than the total ignorance of facts under which Mr. Astell, with all his pretended accuracy of information, laboured. The case was, indeed, the very reverse of that which he endeavoured to represent it. Mr. Arnot had returned to Bengal from Bencoolen, with the consent of Sir Stamford Raffles, the chief local authority there; and to prevent the possibility of this being called a clandestine return, he sent up, from the entrance of the river, and before the ship arrived off Calcutta, or before he left the vessel, the following humble representation:

TO W. B. BAYLEY, ESQ. CHIEF SECRETARY TO GOVERNMENT.

SIR, Ship Wellington, Saugor Roads, May 29, 1824. I beg leave to request, that you will have the goodness to bring to the notice of the Right Hon. the Governor-General in Council, that in consequence of the destruction of the Hon. Company's ship "Fame" off the coast of Sumatra on the night of the 2d of February last (the captain thereupon instantly abandoning me to my fate), I reported the situation in which this event placed me to the Hon. Sir T. Stamford Raffles, then Lieut.-Governor,

1 There is yet another security required to keep the Court itself in order: and that is, a Free Press. This would be as certainly the open protector of honest and independent Judges, as a fettered press has been their secret enemy,

and the highest local authority in that part of the Hon. Company's territories, submitting myself at the same time to his disposal. In conformity with his suggestion in reply, (by a public letter, dated the 6th of Feb ) I transmitted, through his Excellency, a representation of my case to the Supreme Government; and after a detention of three months in that precarious climate, considering the very great uncertainty when my Memorial might reach Bengal, and having no longer the means of supporting myself in Bencoolen, however desirous of doing so, until a reply could be received, I found it to be a duty incumbent on me to avail myself of the ship "Wellington" proceeding to Calcutta ; there being then no other vessel expected in Bencoolen for a long period, and consequently no prospect of any other opportunity of leaving the settlement for a very considerable time.

In following the course pointed out by the Hon. the Lieut.-Governor of Bencoolen, my only object was to submit myself to the decision of his Lordship the Right Hon. the Governor-General in Council; and as, under the above circumstances, no other mode presented itself to extricate me from the difficulties of my situation, but that of proceeding to place myself within the immediate reach of the Supreme Government, I hope that the abovementioned Memorial (of date the 14th of Feb.) transmitted by the local authorities of Bencoolen, detailing the hardships attending my voyage in the late ship "Fame," has been submitted to the consideration of his Lordship in Council. I now await the decision thereon, cherishing the hope, that in pronouncing sentence on my future destinies, his Lordship in Council will be graciously pleased to bestow whatever regard may be considered due to the sufferings I have already undergone.

I have the honour to be, Sir,.

Your most obedient and humble servant,
SANDFORD ARNOT.

After a delay of ten days, the following reply, dated June 3d, was returned from the Chief Secretary:

SIR,

TO MR. SANDFORD ARNOT.

In reply to your letter of the 29th ult. I am directed to inform you, that Government does not see fit to permit you to remain in India. I am farther directed to apprise you, that if you are found within the limits of this Presidency after the 1st of September next, legal measures will be adopted to enforce your return to England.

I am, &c. &c. (Signed,)

W. B. BAYLEY, Chief Sec. to Govt.

The individual who transmitted to us this closing correspondence, offers some remarks on the disappointment of the British Indian public as to the result, in terms that deserve to be repeated. He says:

So poorly have they answered to the expectations formed, and the reliance placed on their magnanimity to overlook offences. Yet Mr. Arnot, no doubt, did right to make the trial, otherwise he could not have excused himself, and others would not have believed that Sir Stamford Raffles so much mistook the spirit of the Government as to rate it so much more favourably than it deserved. But will it even now be credited, that on the mere suspicion (not proof) of such a trivial offence as mentioning your transmission from India, your assistant and successor has been illegally imprisoned,-illegally transported to Bencoolen, like a convicted felon, and all the property he possessed destroyed in consequence of the same illegal procedure; that he has, in a word, been subjected to every thing short of capital punishment, and by the same lawless measures within a hair's breadth of losing his life also;