« PreviousContinue »
1,191 of Hindoos, and 191 of Mahomedans, none of Europeans or East Indians, and only one Portuguese and one of the Jewish community
“ 19. After making every allowance for the absence of the names of officers of government, of barristers, and others who from special circumstances may have been prevented from expressing their opinion, surely the memorialists themselves can hardly expect us to regard a petition so signed as adequately representing the general sense of the community.
“ 20. But what do they ask us to do? They pray us to remove from the Bench, an able, laborious, learned, and incorruptible judge, on account of alleged want of temper, courtesy, and discretion : they ask us to do this the very day his tenure of office naturally terminated. I feel assured that, had time been allowed them for reflection, the memorialists themselves would have seen the false position in which they placed themselves, by preferring to government a request compliance with which was simply impossible, even had the charges they brought forward been such as if proved would have jus. tified any English government in directing the removal of a judge from the Bench.
“ 21. Moreover, the memorialists would surely have seen on reflection that if a community is justified in preferring such a request or a government in complying with it on such grounds, a case at least as strong would exist, where undue clemency had been shown, and that if such a demand could properly be made by a community publicly assembled for the removal of a judge, who administered justice with too little mercy, a similar demand might be made with much greater force and propriety in the case of a judge who showed mercy with what the public might think too little regard for strict justice.
“ 22. Again, if they who object to a judge's manner, temper, or prejudices, are justified in meeting together to make a public demand for his disgrace and removal, it is at least equally justifiable for those who do not object to him for such reasons to meet also to support him. I feel assured that there are few of the memorialists, who signed this petition with a full sense of its import, who could contemplate without dismay the possibility of the judicial office being thus held subject to what the public opinion of the day might think suitable, apart from the intrinsic considerations of the honesty, independence, and legality of a judge's proceedings.
“ 23. It is indeed so obviously dangerous to the interests of justice to comply with any demand for the removal of a judge, for any cause save for incompetency, corruption, or wilful denial, or delay of justice according to law, that it would be far more probable that any government would continue in office a judge whom they might otherwise desire to remove, rather than that it should be supposed that they had removed the judge in accordance with the popular feeling of the moment.
“ 24. For all these reasons, I should have felt inclined simply to acknowledge the receipt of this petition, trusting that time and reflection would show the memorialists that they had asked what was in itself unreasonable, in a manner and at a time which made compliance with their request impossible; and that the manner, the time, and the substance of their request alike prevented government from giving to their memorial the weight we should otherwise wish to attach to any representation which came before us with so many respectable signatures. But it is, I think, due to the memorialists, no less than to Mr. Anstey, that we should leave no room for possible doubt as to the view we take of their request, and, if my colleagues concur with me in this opinion, I would propose that a reply should be sent briefly embodying the views I have above stated.
“ 25. These papers will, of course, be transmitted to Her Majesty's Secretary of State. In doing so, it is only just to Mr. Anstey that I should record my conviction that he has done important service to the cause of justice during his tenure of office. It is not necessary to undertake Mr. Anstey's vindication from the imputations of undue warmth of temper or unreasonable force of expression which form so much of the substance of this petition. Had Mr. Anstey's command of temper and his discreet care of what was most for his own advantage been as conspicuous as his ability, it would probably never have fallen to the lot of any government or community out of England thus to criticise the proceedings of one whose talents, learning, and fearless determination to do his duty, ould have adorned even the English Bench in its best days.
“ 26. But I would not be understood as implying that any of these alleged defects have neutralised the good Mr. Anstey, I am sure, desired, and I believe to a great extent succeeded in effecting. He fell on times quite unparalelled in the history of this, or, I believe, of most other courts and communities ; when the course of justice was impeded by the mere mass of the work thrown upon the court, and when the vastness of the calamity which had fallen upon the whole mercantile community tended to obliterate the usual landmarks of right and wrong, and to produce a general disinclination to judge or act strictly, which greatly aggravated the difficulty of enforcing rights by course of law.
" 27. Under these circumstances, the accession to the Bench of a judge so laborious, learned, and inflexible, afforded the court that kind of aid, without which it might have struggled long to master the business before it, in any mode which should have made men feel that the High Court was something more than a mere court of arbitration and adjustment, with 'but little practical power to do anything beyond giving legal effect to the voluntary arrangements of parties. I am assured, on evidence which I cannot doubt, that many a just claim which would otherwise have been irrecoverable has been at once satisfied, under the wrong-doers' dread of appearing before a judge so keen and inflexible, and I have no doubt in my own mind that his presence on the Bench, during the past few months, has tended greatly to maintain strict and regular procedure in the Court, and has materially aided the Court in the arduous task which but for his assistance it would have been very difficult to perform. To render this service Mr. Anstey sacrificed, I believe, the largest and most lucrative private practice at the Bar; and this sacrifice and these services constitute, I conceive, a substantial title to the gratitude of the government and community, which it would require something more than infirmity of temper to neutralise.
H. B. E. FRERE.
NOTE.—Since the observations which precede the above minute were written, a letter has bappened to come into our bands which contains a remarkable confirmation of the opinion we have expressed of Mr. Anstey's conduct as a judge. The letter was written by a merchant in Bombay to his London correspondent, and the writer, after alluding to the deplorable mercantile condition of the community, in which "everyone now-a-days seems to be either a swindler or a bankrupt,” and after mentioning Mr. Anstey's departure with regret, says, “We would be delighted to see him return to Bombay." Had he remained here, there would not have b en one-tenth of the bankruptcies recorded which have been since he left; be was a terror to swindlers and rogues of every degree, and greatly they rejoiced when he left Bombay."
ART. IX.-THE LATE MR. JUSTICE THOMSON.
the Law Magazine, No. 44, we acknowledged the receipt
of the early copy of the Institutes of the Laws of Ceylon, by Mr. Justice Thomson, and promised in a future number to notice the work at length. When that paragraph was penned, Mr. Thomson was in England on leave of absence. He returned to Ceylon in November, and died suddenly, shortly after his arrival, on the 4th of January of this year.
Henry Byerley Thomson was a son of the late Dr. Anthony Thomson. He was educated at King's College, London, and Jesus' College, Cambridge. On May 14, 1849, he was called to the Bar by the Honourable Society of the Inner Temple. When Lord Stanley became Secretary of State for the Colonies, Mr. Thomson was appointed Queen's advocate of Ceylon, and, on the first vacancy, he was elevated to the bench. Mr, Thomson was the author of a work on The Choice of a Profession, and of The Laws affecting Shipping and Commerce. But his most important work is that now before us. It is scarcely possible to over-estimate the value of that labour of which three volumes are the result. When it is stated that till their publication the legal profession of Ceylon was in possession of no single text-book of the law as administered in their colony, no one will deny the vast service Mr. Thomson has performed. Compounded as the law is of the RomanDutch law, equity, and portions of English common law, a legal practitioner required, for the successful discharge of his duties, a composite library difficult to obtain, and difficult to master when obtained. The Code Napoléon having been introduced into Holland in 1811, there had been, with the exception of two or three translations, no publications on Roman-Dutch laws since that period ; consequently, books on that subject have gradually become more scarce, and are daily becoming more costly. It is true, that since the charter of justice was granted to Ceylon, the supreme court has, by its decrees, been now for forty-three years declaring the laws of the colony ; but the profession generally were unable to profit by decrees which, with trifling exceptions, have been left unprinted. The state of things that followed may be imagined. The absence of a complete publication has led to error and litigation. The supreme court has had to decide the same points, often elementary points, over and over again, because the district judges, magistrates, advocates, and proctors have had no proper reports to refer to for guidance. Even the supreme court, having no index to its own decisions, have elaborately adjudged many questions of law, ignorant that those very questions had been as elaborately adjudicated upon years before by their predecessors or have unwittingly overruled those predecessors and themselves!
It was with full knowledge of the multiform and inevitable evils thus inflicted upon the colony that Mr. Thomson undertook the compilation of the present work.
seems, in Ceylon no periodical reports similar to those published in England. The law laid down by the supreme court has hitherto been partially made known to the public by limited collections of decrees copied from the records of the court, and unaccompanied (save in one instance) by any report of the arguments of counsel.
The first of these collections is that of Sir Charles Marshall, late Chief Justice of Ceylon, and known as “ Marshall's Judgments.” It includes only decrees pronounced between the 1st of October, 1833, and March, 1836; but it is especially valuable on account of its excellent arrangement, and the learned and lucid comments passed by that able judge upon the decrees contained in it-comments that have always been treated as of high authority by the supreme court.
Another compilation is the “ Digest of the Decisions of the