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of business is thrown exclusively on him, and have wondered, that he has not discovered, or been honestly told, the very obvious reason. If Sir J. Copley desires to exonerate the Lord Chancellor from the burthen of this branch of business, he should enable the judge to proceed thereon in the same manner as the Chancellor would have done, that is to say, to look into the whole of the proceedings, and not to confine his judgement to the form of the warrant.
We cannot omit taking an early opportunity of vindicating the 14th List (from which the greater number of commitments come) from the undeserved obloquy which it is the fashion of the day to heap upon them. It is true that they have committed more prisoners than all the other lists put together: this should only give rise to the question, Whether the thirteen lists have neglected their duties, or the 14th exceeded theirs? We incline We incline very much to the former supposition; for we feel it much more difficult to believe, that in fourteen years the 5th, 10th, 12th, and 13th, have never had a bankrupt or witness before them who has deserved commitment; or that the 1st and 11th have had only one each, than that forty-one legitimate cases (less than three a year) should have occurred to the 14th. There may be, and probably is, something of harshness in the manner in which this power is exercised; but seeing the frauds daily committed in bankruptcy, (y) examining the cases in which the warrants of this list have been discharged, for form rather than substance, we cannot but avow our opinion, that these Commissioners have suffered much unmerited reprehension for the fearless discharge of their duties.
(y) The last Middlesex Sessions afforded an example of the benefit resulting to the public from the strict examinations of this list. Arund Eden was convicted of perjury, in swearing to a debt or payment of 2501. upon a bill of the bankrupt's, given in 1821.
Several gentlemen from the Stamp Office swore, that the stamp on
which the bill was drawn was not in existence before 1826 !
John Reis, the bankrupt, was also convicted of similar perjury.
A few more of these detections would be highly beneficial. It might be well to have a return of convictions for offences under the Bankrupt Laws, that the 14th List might have an opportunity of justifying their practice.
ART. V.-LEGISLATIVE MEASURES IN INDIA FOR RESTRAINING THE FREEDOM OF THE PRESS.
It was not until many years after the establishment of the East India Company in Hindostan, that British courts of justice were created at the several presidencies or seats of government-Calcutta, Madras, and Bombay. The avowed object of erecting such courts was to secure to all British subjects over whom their jurisdiction extended that protection of person and property which the British law affords to the inhabitants of the mother country and by the administration of justice, according to the forms of the English courts, to keep a check upon the local governments.
One of the most important clauses of the charter by which these supreme courts of judicature were created, provided, that no regulation of the local government should be valid in law, unless it received the sanction of the court at the presidency at which it might be made; and this sanction could not be granted by the bench, unless the regulation should be, in the opinion of the judges, "just, reasonable, and not repugnant to the laws of the realm." (a) Other provisions were made, to give full publicity to such regulations, by suspending them for a certain period in the court before their registry could take place: and it was left open to
(a) The power, thus conferred upon the supreme courts, of controlling the authority of the local governments, will probably remind our readers of the similar powers possessed by the parliaments, or supreme provincial tribunals of France with respect to the "Ordonnances of the king. The origin of this check upon the royal authority in France is involved in some obscurity. But whether it was the result of grant or usurpation, this much is certain, that from the 14th century no edict or ordinance could obtain the force of law until it had been verified and registered in the parliament of the province in which it was promulgated. "Les parlemens," says Meyer (Institutions Judiciaires, 3, 171,)" avoient même étendu le droit d'enregistrement à celui de verifier, non la forme et l'authenticité des édits et des ordonnances, mais leur contenu; ils présentaient aux
rois des remonstrances sur ce qu'ils croyaient ne pas convenir à la situation des provinces ; ils mettaient des restrictions et des modifications à l'enregistrement; ils exerçaient de fait une espèce de censure sur le pouvoir legislatif." The parliament of each province had the power of acting independently of the rest; and of determining whether the ordinance presented for registration was in accordance with the interests of the particular district over which it had jurisdiction; nor was it restricted to the alternative of simply registering or simply rejecting ;-it might also modify the ordinance, so as to accommodate its provisions to the wants and peculiar circumstances of the province. "Il se pouvoit," observes Meyer, " que l'ordonnance fût enregistrée dans un parlement, modifiée dans un second, et rejetée par un troisième."
persons so disposed to oppose by counsel the registration of any regulation which they could show to be either unjust, inexpedient, or clearly repugnant to the laws of the realm.
Notwithstanding the power granted by statute to the governors of the several presidencies in India, to make any regulation they deemed advisable within the limits prescribed, it is remarkable, that no governor-general, from the earliest records of the India Company's history, up to the period of its last governorgeneral Lord Hastings' resignation in 1823, ever attempted to procure the registration of any regulation for infringing or abridging, in the slightest degree, the liberty of the press. It was enjoyed in every part of India in as full perfection as in England itself: and in every case of alleged libel, whether on the government or on individuals, no other mode of procedure for remedy was either suggested or pursued, but that which is followed in England. Nor does the slightest evil appear to have arisen from this course; and, although it endured through the most stormy and critical periods of our struggles for dominion in the East, yet no steps were taken, either by the legislature of this country, or the local courts, to deprive India of a single particle of this acknowledged benefit.
It was not until all political danger was at an end, and Lord Wellesley, then Governor-General of India, was in the plenitude of power, that he thought of placing restraints on the freedom of publication. He did not however attempt to obtain for his restraining regulation the sanction of the Supreme Court. He merely issued a circular through the office of the Chief Secretary to Government, commanding the editors of all newspapers, or other journals, published in Bengal, to send the proof sheets of their several works to the Censor appointed by himself, who would strike out whatever appeared objectionable to him, and the parts so struck out were not to be published, but at the editor's peril. The penalty of an act of disobedience on the part of the editor in declining to submit to the censorship thus arbitrarily established was immediate banishment from the country, with all its ruinous consequences; and this, without any form of trial or other means of defence on the part of the individual to be thus suddenly and ignominiously transported.
Unfortunately for the interests of justice, this severe punishment could be inflicted on any individual whom the Government might select, without the sanction of the judges, or even without their being able to interfere, by writ of habeas corpus, or any other mode, to save the victim of such a dreadful power. And although the avowed object of sending out British judges to preside over the courts in India was to make the law of England operate as a check on the arbitrary proceedings of its local go
vernments; yet in this most arbitrary and most dreadful exercise of power, their control was perfectly inoperative. This arose from the circumstance that there existed in all we successive charters of the East India Company a clause which rendered it necessary for every British-born individual who wished to visit India, to obtain from the Court of Directors a license for that purpose: which license was made revocable at the pleasure of any of the local governors, without cause assigned; and, when revoked, left the individual liable to banishment from the country, as being no longer possessed of lawful power to remain there. To this the courts of justice could oppose no obstacle whatever: so that, in point of fact, the fortunes of every British-born individual in the country being entirely in the hands of the governor appointed by the India Company, he needed not the sanction of the Supreme Court for any regulation whatever: he could issue any orders or decrees he pleased-no matter how unjust, inexpedient, or repugnant o the laws of the realm, and make the penalty of noncompliance the forfeiture of the offending individual's license, and consequent banishment.
This decree or order of Lord Wellesley, enforcing the Censor ship of the press in India, under the severe penalties described, remained in full force up to the year 1818, no English editor having been found, during this long period, willing to incur the ruinous consequences of disobedience, especially as a distinguished individual had been banished from India under circumstances of extreme severity, just previous to the establishment of this censorship, and the sufferings to which he had been consequently exposed were too deeply imprinted in the recollection of his countrymen to be speedily forgotten.
In the mean time the number of newspapers had greatly multiplied in Calcutta; so that the Censor (who was always the Chief Secretary to Government) found that the duty of reading the proof-sheets, sent for his inspection and revisal, was extremely troublesome, and interfered considerably with his other official duties. This circumstance contributed, with other causes, to the abolition of the censorship in 1818, and the promulgation of a new code for the regulation of the press.
That abolition was the act of Lord Hastings, and great was the applause which he thereby gained in all quarters. The liberality of the measure, however, was only in appearance: the odium of the name of censorship was indeed removed, but the shackles of the press remained equally galling and oppressive. The prohibitory regulations substituted were quite as objectionable in principle as the censorship itself, and quite as illegal. They narrowed the limits of discussion within the smallest imaginable space, and left nothing open to the editors of the public papers
but matters as uninteresting as they were harmless. This code, however, like Lord Wellesley's decree for establishing the censorship, was most carefully kept from any contact with the Supreme Court of Justice. It was presented there neither for discussion nor approbation; it consequently never obtained the sanction of the judges, or the registration of the court, without which, by the statute, no regulations could be valid. It never, therefore, obtained the force of law, and no legal proceedings. ever were, or could be, had for any infringement of its rules and directions. Why then, it may be asked, was it ever conformed to? The answer is plain-for the same reason exactly as that which made every one pay implicit obedience to the censorship of Lord Wellesley; namely, that, although the publication of any matters prohibited by these rules was not an offence known to the law, and could not therefore be punished by any process of court; yet, the power of revoking the license of any British-born individual for any, or for no offence, still existing in full force, the government always had this remedy in its hands; and if any editor dared to discuss any topic in a manner not agreeable to the government, whether the topic itself were prohibited or not, it could revoke the license of the offending editor without even assigning a reason for so doing, and the moment after such revocation, seize his person, imprison him for safe custody, and transport him as a felon by the first ship sailing for England, merely for being in India without a license.
It is worthy of observation, that neither the censorship established by Lord Wellesley, nor the new regulations framed by Lord Hastings, could operate except upon British-born subjects. With regard to that part of the community, which was the most likely to use the press for purposes offensive to the government, these arbitrary acts were, from their illegality, wholly inefficient. This was exemplified during the censorship. A periodical work appeared under the editorship of an Indo-Briton, one of the mixed race descended from British and Indian parents. He, being a native of India, needed no license to give him right of legal residence there; and to him, therefore, the power of summary banishment from the country, on the plea of being an "unlicensed resident," could not apply; so that he might, and in point of fact did, decline to submit his proof-sheets to the inspection of the Censor. He defied the Government on its own ground, knowing that it had no power to act against him, but by process of law through the Supreme Court; by which, of course, a refusal to submit to a censorship of the press could not be recognised as a crime, since no censorship had been lawfully established. The same resistance could obviously be made for the same reason, by a native, to the unregistered regulations which succeeded the censorship.