Imatges de pÓgina
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1856.

the race of Parsees inhabiting Goozerat in India, and ARDASEER were not respectively descended from Parsees born or CURSETJEE residing within any of Her Majesty's dominions other PEROZEBOTE than the territories under the government of the East

India Company in India, and were not respectively persons who, prior to the date of the Letters Patent establishing the Court, had been described or distinguished in the Royal Charters of Justice for Bombay by the appellation of “British subjects,” and that the Court was incompetent to take cognizance of or proceed in the suit, or to administer towards and upon the Promovent or Impugnant the Ecclesiastical Law as the same, at the date of the Letters Patent establishing the Court, was used and exercised in the Diocese of London in Great Britain.

The protest was argued on the 9th of January, 1854, and on the 5th of July following, the Chief Justice, Sir William Yardley and Sir Charles Jackson, the Puisue Judge, disagreeing in opinion, delivered their judgments, seriatim.

The judgment of Sir William Yardley, the Chief Justice, certified and returned by him to the Privy Council, as containing the reasons for his judgment, after setting forth the pleadings, proceeded thus : “ The question which is raised by this protest is, whether the Court has Ecclesiastical jurisdiction in matters relating to the marriage state over persons of the Parsee religion, who are natives and inhabitants of the town and island of Bombay. If the Court has such jurisdiction, this protest must be overruled ; if not, it must be allowed.

" At the time this case came on for argument I entertained, and I confess I still entertain, great doubt whether the Impugnant ought to be allowed again to

1856.

ARDASEER

raise this question by protest, inasmuch as in the year 1843, when a suit precisely similar to the present was instituted against him by the same Promovent, he CURSETJEE then put in the same protest, which, after solemn PEROZEBOYE argument, was overruled in an elaborate and careful judgment by Sir Erskine Perry, then Puisne Judge of the Court; the Chief Justice, who had been prevented by illness from hearing the argument, fully concurring in the conclusion that the Ecclesiastical jurisdiction did extend to Parsees, as appears by a full report recently published by Sir Erskine Perry in his collection of Oriental Cases, and that decision has been followed in at least one other case, which is also reported in the same volume. Buchaboye v. Merwanjee Nasserwanjee. (Oriental Cases, 73.) However, as this is an important question of jurisdiction, and the former decision does not seem to have been acted on by the Promovent in this case, and as my learned brother dissents from that judgment, I have thought it better not to content myself by merely referring to the former judgment, but to examine afresh the arguments which have been adduced on both sides of the question ; but in so doing it is not my intention to travel over the same ground traversed by Sir Erskine Perry in his judgment, but to consider a few points in the argument which have been adverted to either not at all, or not so fully as their bearing on the question seems to demand. The Act, 4 Geo. IV., c. 71, under the immediate authority of which the Charter establishing this Court was granted, after reciting that it might be expedient for the better administration of justice in Bombay, that a Supreme Court of Judicature should be established at Bombay, in the same form and with the same powers and authorities as

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VOL. VI.

1856.

ARDASEER CURSETJEE

1.

that now subsisting, by virtue of the several Acts before mentioned, at Fort William in Bengal, enacts,

by section 7, ' that it shall and may be lawful for His PEROZEBOYS Majesty, his Heirs and Successors, by Charter or

Letters Patent under the Great Seal, to erect and establish a Supreme Court of Judicature at Bombay aforesaid, to consist of such and the like number of persons to be named from time to time by His Majesty, his Heirs and Successors, with full power to exercise such Civil, Criminal, Admiralty, and Ecclestastical jurisdiction, both as to natives and British subjects, and to be invested with such powers and authorities, privileges and immunities, for the better administration of the same, and subject to the same limitations, restrictions and control within the said town and island of Bombay, and the limits thereof, and the territories subordinate thereto, and within the territories which now are or hereafter may be subject to or dependent upon the said Government of Bombay, as the said Supreme Court of Judicature at Fort William in Bengal, by virtue of any law now in force and unrepealed doth consist of, is invested with, or subject to, within the said Fort William, or the places subject to or dependent on the Government thereof ;' and by section 17 of the same Act, it is declared and enacted (amongst other things), that it shall be lawful for

" the said Supreme Court of Judicature at Bombay to be created by virtue of this Act, within the said town and island of Bombay and the limits thereof, and the factories subordinate thereto, and within the territories which now are or hereafter may be subject to or dependent upon the said Government of Bombay, and the said Supreme Courts are thereby required, within the same respectively, to do, exécute, perform, and

1836.

CURSETJEE

v.

fulfil all such acts, authorities, duties, matters and things whatsoever as the said Supreme Court of Fort ARDASEER William is or may be lawfully authorised, empowered, or directed to do, execute, perform, and fulfil within PerczEBOYS Fort William in Bengal aforesaid, or the places subject to or dependent upon the Government thereof.'

“ I have been the more particular in setting out these two sections, because upon the language of the 7th section, as distinguished from that of the 13th Geo. III., c. 63, s. 13, under which the Supreme Court at Calcutta was erected, is founded an argument, that if the Court at Calcutta has Ecclesiastical jurisdiction over the natives of India residing within its jurisdiction, it does not thence follow that this Court has such jurisdiction, because the 7th section of the 4th Geo. IV., c. 71, only empowers the Crown to erect a Court, with the powers and authorities therein described, and that, therefore, we must look to the Charter itself to ascertain the extent of the jurisdiction conferred; whereas by the 13th Gco. III., c. 63, sec. 13, it is declared that the Court to be erected 'shall have, and the said Court is thereby declared to have, full power and authority to exercise and perform all civil, criminal, admiralty and ecclesiastical jurisdiction,' &c. Now, I feel compelled altogether to dissent from this argument, for I think it impossible that the Legislature could more clearly have expressed its intention that the Court to be erected at Bombay should be a Court with jurisdiction co-extensive with that of the Supreme Court of Calcutta than it has done in the 17th section of the Act, which I have cited, and which seems to me to give, by relation, to the Court here, any authority and power which the Court at Calcutta may have derived from the language of the

1856.

13th Geo. III., c. 63, sec. 13; and if that be so, the ARDASEER argument which goes to show that the decision of the CURSETJEE

Supreme Court at Calcutta in the Beebee Muttra's PEROZEBOYE case (Clarke's Rules, p. 119) is no authority in this

case, entirely falls to the ground, and we must take it, that if by virtue of the language of the Act, 13 Geo. III., c. 63, the Supreme Court at Calcutta has the jurisdiction, this Court also, by virtue of the language of the 4th Geo. IV., c. 71, equally possesses it. But without for the present either adopting or rejecting the view of Chief Justice Russell, as to the force and power of the words cited, let us proceed to examine those clauses of our own Charter in which the jurisdiction of the Court is defined.

“ The language of the clause of the Charter granting Ecclesiastical jurisdiction is as follows :“And it is our further will and pleasure, and we do hereby, for us, our heirs and successors, grant, establish, and appoint that the Supreme Court of Judicature at Bombay shall be a Court of Ecclesiastical jurisdiction, and shall have full power and authority to administer and execute within and throughout the town and island of Bombay, and the factories subordinate thereto, and all the territories which now are or hereafter may be subject to or dependant upon the said Government, and towards and upon all persons so described and distinguished by the appellation of British subjects as aforesaid there residing, the Ecclesiastical law, as the same is now used and exercised in the Diocese of London in Great Britain, so far as the circumstances and occasion of the said town, island, territories and people shall admit or require, and to that purpose we give and grant to the said Supreme ('ourt at Bombuy full power and authority to take

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