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recognised his claims to a judicial appointment at the earliest available opportunity. We can hardly credit the rumour which has now reached our ears, that Sir Stafford Northcote, the present Secretary for India, repudiates this obvious obligation. Surely, if it be desirable to encourage a high tone in the Bar of India, no occasion should be lost of recognising that kind of merit, not very common in the East, which holds public duty superior to pecuniary considerations. Surely, if the Bench of India is to be truly independent, free from the imputation of subserviency of any sort, it can hardly be wise to officially ostracise a man who has shown himself proof against a flood of social corruption.
We must venture to express our hope that if the India Office does not see fit to appoint Mr. Anstey to a High Court Judgeship in one of the Presidencies, the Lord Chancellor will take care that that gentleman does not suffer permanently for his good conduct. We are convinced that Lord Chelmsford must, of all men, be capable of appreciating the integrity and independence which Mr. Anstey has so signally exhibited ; and some practical confirmation of Sir Bartle Frere's eulogy would come from his lordship’s hands with equal authority and fitness.
MINUTE by His Excellency the Governor (in Council) of Bombay,
dated 22nd January, 1866, on the Petition from Sir Jamsetjee Jeejeebhoy, Baronet, and others, praying for the removal of Mr. Justice Anstey from the Bench of the High Court.
“ 1. I have received this Petition with very great regret, a regret which has increased the more I consider all the circumstances connected with it.
“2. That any large number of the inhabitants of Bombay should consider it necessary to meet together to protest against the continuance in office of a judge whom this government had selected to sit on the Bench would, of itself, be to me a source of sincere regret, and this feeling would be increased by finding, as in the present case, attached to the protest the names of several gentlemen for whom I
entertain a most sincere regard and respect, and who, I feel assured, would not have taken part in any such measure but from what they considered an imperative sense of public duty.
“ 3. Nor would my sorrow be lessened by finding that in the manner, no less than in the substance, of their address they had departed widely from those rules which have for ages guided our own countrymen, when appealing against the decisions or challenging the conduct of judicial officers.
“4. It appears from the published accounts of the meeting at which this address was adopted, that the meeting was convened at a private house, without any public notice of the precise object of the meeting, and that the petition was produced ready drawn up, adopted, and signed, without preliminary discussion, and without even the form of framing it, so as to accord with any views expressed at the meeting
“ 5. It is not thus that Englishmen are wont to proceed in so momentous a step as that of publicly impugning the character of a judge; and I on this account especially regret that the memorialists were so ill advised as to separate themselves on this occasion from their European fellow citizens; for I am confident that any Englishman, however little experienced in the usages of public meetings and movements like the present one, would have pointed out to the memorialists that if they wished due attention to be paid to their appeal as a public expression of the general sense of the community, the meeting should have been convened with clear public intimation of its object, full discussion should have been permitted of the steps proposed, and the address should have been framed so as to bear at least the appearance of being the result of the meeting rather than the cause of its being convened.
“6. Had this course been adopted, it could hardly have failed but that some one would have pointed out to the meeting that to condemn a judge for any cause save for some form of incompetence, for wilful violation of the law or for corruption, was a course unheard of and practically impossible in England; and that to pray for the removal of a judge, whose tenure of office was expected under ordinary. circumstances to expire in a few days, must give to the request the appearance either of unreasoning panic or of vindictive feeling rather than of a public and deliberate verdict of a large section of the community
“ 7. These circumstances would of themselves have prevented my regarding this petition with the deferential consideration I should wish to pay to any genuine spontaneous deliberate expression of opinion from gentlemen so highly and justly respected as many of the subscribers ; but it is not the less incumbent on us to consider the gravamen of this impeachment.
68. It is alleged that the judge is guilty of extremely harsh and insolent treatment of suitors and witnesses, and punishing by fines and imprisonment for trifling causes, of violence of temper and eccentricity tending to produce and actually producing a failure of justice— by deterring suitors from pressing their claims in court-by terrifying, especially solicitor's clerks, and by rendering, even European gentlemen who practise before him, reluctant to appear in court.
“9. That he is not the person to be entrusted with the administration of the new Civil Procedure Code, owing to his unreasonable rigour in applying its provisions with the avowed determination of forcing on the reorganization if not the total repeal of the Code.
“ 10. That he has contracted a prejudice against the native community as a body, and against educated natives in particular; that he is swayed by personal prejudices; that in criminal cases he exhibits an unseemly desire to secure a conviction, and that his punishments are often unusually and indiscriminately severe, and sometimes accompanied by unseemly and unnecessary remarks on parties not before him.
“ 11. Had the subject of the petition been publicly discussed in a manner befitting its momentous object, such discussion could hardly have failed to recal to the minds of English lawyers, Bartraditions of some of our greatest judicial authorities, the lustre of whose fame has been dimmed by defects of temper, by an almost vindictive application of harsh laws, and by habitual imperiousness towards the Bar, at least equal to anything alleged in this petition. But no external advice would, I think, have been needed to convince the subscribers, that harshness and violence of temper and expression, and a habit of punishing with the utmost rigour of the law, but always within the law's limits, are scarcely grounds on which to pray for the removal of a judge, whom his greatest enemies must admit to
be learned, able, independent, and of unimpeachable integrity.
“ 12. It is impossible to test the degree of weight to be attached to many of the statements in the petition, nor could any inquiry we can make test the exact effect of manner or temper, apart from more cogent considerations connected with the nature of cases, or with the character and circumstances of parties. It is quite possible that some of the statements as to parties being deterred from appearing before so severe a judge, may be true, without supposing that the terror so inspired was altogether unfavourable to the ends of justice.
“ 13. Others of the statements are so absolutely incredible, that I cannot but think the memorialists have been misinformed. I have too great confidence in the courage and independence of the Bar to believe that any barrister would be deterred from appearing in what he believed to be a just and righteous cause, merely from fear of being browbeaten, and no such avowal of any intention to procure the repeal of the Civil Procedure Code, as is alleged in the petition, could possibly, I think, have been declared in the manner, or with the intent alleged. The great body of the memorialists must necessarily have taken these and other statements on trust, and it is far more likely that they should have been misinformed, than that the English Bar should forget its duty, or that an English judge, so mindful as Mr. Anstey has always shown himself of the traditions of Westminster Hall, should forget the very first and most universal principle which separates the judicial from the legislative function, and which is ever on the lips of an English judge, when, as must so often happen, he is bound to administer a law which he would, if a legislator, desire to modify.
“ 14. There is one important charge, regarding which I am convinced that the memorialists do Mr. Anstey grievous injustice, and that is, where they assert that he has contracted a prejudice against the native community as a body, which operates to their disadvantage when appearing before him in court.
“ 15. Whatever else may be said or thought of Mr. Anstey, there can be no doubt that an irrepressible and inextinguishable hostility to every form of apparent oppression or injustice, a determination, no matter what the personal sacrifice, to protect the weak against the strong, is one of the most marked and invariable characteristics of his long public career, and I feel assured that, as far as any prejudice may
exist in his mind, it is certainly not against the native community as a body, so as to act to the disadvantage of members of it, when seeking to get justice before him for themselves or others.
“ 16. It may be an accidental irrelevance which adduces as an illustration of his bias against natives, a case in which he is apparently charged with allowing his feeling against an European solicitor to influence his judicial conduct. But even if the case applied, or were capable of test, no single case, however strong, could prove a charge of habitual prejudice against natives of India, when opposed to the evidence of a long lifetime, during the whole of which he has been more before the world, and more exposed to the most searching public and unsparing criticism than any man in India : and I could, if it were necessary, refer to cases which occurred very lately, before he took his seat on the Bench, in which Mr. Anstey allowed no personal considerations of pecuniary or professional loss to himseif to prevent his taking up the case of a native previously quite unknown to him, but who he believed had been wronged by Europeans in authority. The confidence which the natives felt in him as a fearless and unfailing advocate of their rights was shown by his enjoying the best practice at this bar up to the day he took his seat on the Bench ; and I feel quite certain that, if the memorialists individually, or in a body, were to be threatened to-morrow with any measure of highhanded tyranny, they could not in the whole Indian Empire, find a more certain, ready, or energetic advocate of their rights, than the man who they have been told entertains a general and indiscriminate prejudice against their whole community.
« 17. After the most careful consideration of this petition, I confess I am at a loss to know what possible action the memorialists expected the government to take upon it. T
The meeting was held on 16th December, and the petition ready drawn up, was on that day numerously signed. It was not however sent in to government till the 30th December, and, partly owing to my unavoidable absence from Bombay, did not actually reach my hands till Mr. Anstey had ceased to sit on the Bench, in consequence of Sir Joseph Arnould's return.
“ 18. Between the 16th and 30th there was ample time for every one, who desired to do so, to sign the petition. I find that of the 2,662 names appended to it, 1,278 appear to be those of Parsees,