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executive, or combined with the legislative; and Parliament having legislated so much for British India, it is a pity, I think, that a question of such vital importance, with analogy to England, should not have emanated in, and had the sanction of, Parliament.
"I feel further justified in acquiescing in the registry (now that I have stated publicly my opinion), because the decision of the council must be known to Parliament, and, if Parliament should object, it was easy to propose a bill to limit, and more accurately define, the local authority; and when one considers of whom the Privy Council consists, and who were the advocates for Mr. Buckingham,-men all eminent in Parliament as well as the profession,-one cannot avoid feeling, that ulterior measures would have been adopted in England, if the opinion which I unhappily entertain, as to the repugnancy and the necessity of this rule, had been current and general."
Mr. Justice Chambers agreed in opinion with the Chief Justice in disallowing the regulation. His judgment was as follows:
"In order to explain clearly the grounds of my opinion on the present occasion, I think it necessary to advert in a cursory way to the circumstances
under which this regulation is presented to us. In consequence of the recent decision of the Privy Council against Mr. Buckingham's appeal, it has, I believe, been recommended by the Court of Directors to the local governments of Bombay and Madras to propose that the Bengal regulation regarding the press should, totidem verbis, be registered, and become a part of the local law of each of these presidencies; and the government of Bombay so far acquiesce in the views of the Court of Directors, as to propose it for our registration, according to their recommendation. It appears to have been thought, that the decision in that particular case is tantamount to a legislative declaration, that the same, or similar regulations, are so consonant with the general policy of the Indian government, that they need but to be proposed in order to be adopted. If, indeed, that decision bore in any way directly upon the general question of the expediency of such regulations, there is no man in the situation of a judge who would not feel great deference for such authority. But, unless it could be shown, that such a decision bound us with the force of an act of parliament, even then, I conceive, a judge, would, on the present occasion, feel it to be his duty to consider de novo the general principles, and exercise most conscientiously the discretion the legislature had vested in him. But when grounds may readily be suggested for that decision, wide of the principle upon which we are called upon, prospectively, to consider the expediency of the present regulation, I am at a loss to imagine what necessary and immediate connection there is between the decision of the Privy Council and the proposal of it for our adoption. The decision of the Privy Council, stripped as it is of all the grounds upon which it was formed, presents to my mind merely a confirmation, retrospectively, of a solemn act of the Supreme Government in Bengal, in conjunction with the Supreme Court, upon a subject-matter expressly within their authority, under circumstances which, if true, might justify that act, and of the truth of which circumstances they alone were the competent judges. What bearing or what material influence can such a decision have on our minds, who are called upon at another place, under totally different circumstances, to consider, prospec tively, the expediency of introducing the same regulation, not as a remedy for any existing or imminent evil, but as a general and permanent act of legislation? The preamble, it may be said, was not proved, nor required to be proved, to be true before the council; but that, I conceive, could no more be done, than the Court of King's Bench could require the proof of
any special finding of a jury on a special case brought before them; and it does not therefore follow, that the preamble is mere waste paper, and unnecessary to form a ground-work for such restrictive regulations.
"All such regulations being confessedly restrictive of natural liberty, to a much greater extent than it has ever been thought necessary to carry matters in our own country, (I mean in the best time, or in the way of permanent enactment,) whatever distinctions may be made by the terms contra legem and preter legem, to common understandings they are as much opposed to the ordinary notions of English law, as light is to darkness; and necessity alone, and that of a very obvious and permanent kind, can justify, in my judgment, their registration. In all such cases of imperfect definition of legal rights, it is impossible not to see that the situation of the different places may require different legislative enactments, and what may be necessary at one place, may be perfectly superfluous at another. In the same way, even in the same place, it may be premature to introduce strong measures at one time, which, at a riper period of society, may be deemed highly beneficial. There is no subject, indeed, the consideration of which is acknowledged to require a sounder discretion with reference to local circumstances, or in which local circumstances have so direct an operation, in determing the legality or illegality of particular measures. In every separate jurisdiction, therefore, it must be matter purely of discretion, how far and when it is expedient to introduce restrictive regulations of this nature.
"Without, therefore, considering very minutely the particular tendency of the regulation proposed, although I have no hesitation in saying, that if registered, its general tendency would, in my opinion, be most prejudicial to the independence and good spirit of the community; with respect to the necessity of introducing any such regulation at all at the present moment, I conceive there cannot be two opinions. In a time of perfect tranquillity-with a small community of Europeans, and a native population submissive even to servility-the only effect would be imposing new shackles to restrain no evil, and, by leading to by-paths of favour and influence, to create perhaps a greater practical evil then any it can ever obviate. Indeed, nothing can exhibit in a stronger light the difference of circumstances in which this presidency is placed, than the total omission of the preamble of the Bengal regulation in that now presented to the Court for registration: a preamble, the conviction of the truth of which would alone induce me to countenance any such measure. Nothing more is necessary to show how perfectly inapplicable the state of things here is to such restrictive measures than the perusal of that preamble; not one word of which has, or is likely to have, I trust, for a long period of time, any force as applied to this presidency. The disposition and character of the people is not the greatest difference of circumstances to be attended to; the weighty and important difference between the situation of the two places consists in the enactment at this presidency of an intermediate set of regulations, in conformity with the well-known Act of the 37th Geo. III., which were registered in the course of the last year, by which, in my humble judgment, every rational object of government is attained, consistently with perfect liberty, both social and particular. When it shall be shown by experience, that this Court, administering a law which has been found completely effectual in England to restrain licentiousness, and, during a period of thirty years, has operated on society with the most beneficial effect, and has found no revilers even amongst those whom it has brought to justice, shall be found not sufficient to ensure peace and order in society, and stability to the government, it will be then time enough to listen to suggestions which I consider so objectionable in principle as this regulation.
"It seems to have been argued that the only question for the judges to consider is, whether the regulations proposed are, or are not, repugnant to the existing mode of governing British India? It is true, that in this mode of arguing, scarcely any regulations would be inconsistent with law, which fell short of unlimited and arbitrary power. But upon the principle which I have before stated, namely, that legality or illegality, as applied to such a subject, depends entirely upon the apparent necessity of the case, I conceive that the full legislative discretion which the Parliament of Great Britain exercises in all cases affecting the liberty of the subject, is intended to be delegated to judges of this Court, in conjunction with the government, in registering and making local regulations, restrictive of the usual and ordinary rights of individuals. In the exercise of such a discretion, I am of opinion, that ten thousand deviations from the law of England, in particular cases, would form no argument for adding one more to the catalogue, nor would the circumstance of so many previous anomalies make one fresh one consistent with it.
"Another argument which has been used had some influence with me. The effect of the actual state of things has been forcibly represented with regard to British subjects residing in India with or without licence; the principles of government of the British and native population without the limits of the seat of government are also stated; and then it is asked, whether the small portion of the native population residing in Calcutta, or the other presidencies, were intended to be governed in a different manner? To which I answer, that by the establishment of the supreme courts at the presidencies, I conceive that it was the intention of the legislature that both British and native inhabitants, within the ordinary limits of the presidencies and the jurisdiction of these courts, should enjoy the full benefit of English law, and consequently should be governed in a different manner from those in the provinces. It may be said, that the power of sending British subjects home extends to those residing in the presidencies as well as to others; but it must be remarked, that this power, as it has been exercised over the press, has probably never been in the contemplation of the legislature at all. It is a consequence of the discretionary power vested in the government for general purposes, and the particular acts of the government regarding the press have been confirmed by the courts of law; because it would be difficult for any mind to form a distinction between this and other cases in which individuals became obnoxious to the government. But whether this, or any other government, under existing circumstances, would deem it expedient to frame any regulation relating to British subjects, restrictive of the press, (nakedly considered,) is another question, and which is deserving very serious consideration. Both in Bengal and elsewhere, it has been thrown out, that nothing short of the present proposed regulation would be effectual to restain even British subjects from writing inflammatory publications. Because, if the editor and proprietors were all Asiatics, and could be indemnified from the consequences of prosecution, British subjects might, under their names, write and publish things offensive to the ruling power. Whenever the period shall come when such a state of things is possible, and when all legal modes of repressing the evil shall have been tried, and tried in vain, it will be time enough to attach some weight to any argument which may be derived from such a source. Till that time arrives, I am of opinion that the proposed regulation is not expedient, and I decline giving my voice in favour of its being registered."
Two judges out of the three being against the registry, the judgment of the Court was, That the Regulation should be disallowed.
ART. VI.-LAW OF EVIDENCE.
Tractatus et Regulæ de Testibus, Clarissimi Jurisconsulti Johannis Campegii, Bononensis. Coloniæ Agrippinæ, 1575.
WHETHER the author of this treatise was allied by blood to the illustrious Cardinal Campegio, who, in the case of Queen Catherine's divorce, gave such convincing proof of his proficiency in all the mysteries of judicial procrastination, we are not prepared to say. But even with so strong an additional claim to our respect, he could scarcely complain of being placed by us in juxtaposition with two learned magistrates of the ancient and loyal city of London. In order to do so, we shall extract, from his treatise, a very simple and short rule couched in most intelligible language: "Infidelis repellitur a testificando; fallit tamen hoc, ubi alia probatio deficit, quia tunc admittitur ad testificandum." Regula 44. Here there are two things observable. The first is, that infidelity is stated generally to be a disqualification in a witness; which, considering that the treatise was published in the sixteenth century, would not much surprise us, even if the doctrine were altogether strange to our ears. The second is, chat this disqualification is made to yield to the paramount considerations of public justice; which must, of necessity, surprise us, knowing that, according to the law of England in the nineteenth century, the interests of public justice are made to yield to the doctrine of private disqualification.
Let us now hear the English Law of Evidence as propounded and applied by the Recorder of London at the last sessions. The following report is taken from one of the daily papers, and we have no reason to doubt its accuracy:
"John Harwood stood indicted for stealing the ornamental brass fronting of the shop of Richard Carlile, bookseller, of Fleet-street. Carlile was the first witness; he was sworn on the New Testament, and the following colloquy took place:
"Recorder. What is your name?-Carlile. Richard Carlile.
"Recorder. Have you been sworn?-Carlile. I have.
"Recorder. How have you been sworn?-Carlile. In the usual form. "Recorder. On the Gospels?-Carlile. I understand it to be the Gospels.
"Recorder. Is that oath binding on you?—Carlile. I hold the form of swearing to be a solemn promise to speak the truth, and
"Recorder. Sir, do you believe in the Gospels?-Carlile. To so general a question I cannot answer.
"Recorder. Do you believe the Gospels, yes or no?-Carlile. I have fairly examined the Gospels, and, as matters of history, I do not believe them to be accurate.
"Recorder. You do not believe the Gospels to be the word of God?— Carlile. No; but I believe in them, I think, as much as any body does.
"Recorder. Then how are we to bind you?-Carlile. I feel that I am bound to speak the truth; I respect the truth as much as any man.
"Recorder. Do you believe in a God?-Carlile. I do not understand the term.
"Recorder. Question repeated.-Carlile. You will please to explain your meaning; I do not understand your question.
"Recorder. Then you are the only person in Court who does not.Carlile. It is not a fair question.
"Recorder. It is a simple question.-Carlile. I do not think so; it is, in my opinion, a most complex and difficult one.
"Recorder. I again ask, do you believe in a God?-Carlile. I do not understand, and cannot reply to a question so undefined.
"Recorder. I shall not enter into a definition of the meaning of the word God. Do you believe in a God, yes or no?-Carlile. I have already given an answer.
"Recorder. Then, I will not suffer a person to be convicted upon the accusation of a man who dares to publicly avow his disbelief of the Scriptures, and of God.-Carlile. I make no accusation.
"Recorder. Go down, sir."
The law of evidence has too many deformities to admit of exaggeration. We must in this case, therefore, separate that which is law from that which is not law. The learned Recorder
states it as one of the reasons for rejecting Carlile's testimony, that he dared publicly to avow his disbelief of the Scriptures. But every one who is conversant with the practice of the courts knows, that a disbelief of the Scriptures has long ceased to be a disqualification;-that the evidence of Jews, Mahometans, Hindoos, &c. is admissible, and constantly admitted;—and that it has now become an established maxim of the law, that where a person believes in a God, the obligation of an oath, and a future state of rewards and punishments, he cannot be objected to as a witness, on the score of religion. This portion consequently of the Recorder's sentence must be placed to the account of his orthodoxy, and not of his law.
The other reason assigned for rejecting Carlile is, that he "avowed his disbelief of God;"—and this would be beyond doubt a valid legal objection. But in the above report no such avowal When asked whether he believed in a God, he objected to the question as an unfair question, as complex and difficult, as too undefined for him to understand or reply to;' and he requested the Recorder to explain his meaning. There was nothing in his answers from which we are entitled to infer that he did not believe in a Supreme Being. On the contrary, the natural inference is, that he did believe, although his belief probably was not in strict accordance with the Articles of the Church. Thousands of persons, it is most true, believe or profess to believe in a God, without ever having inquired into the grounds of their belief, or into the meaning which they affix to the term. Some indeed have regarded their creed upon the subject, not as a matter of religion,