Front Page Titles (by Subject) CHAP. VI. - The History of British India, vol. 4
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CHAP. VI. - James Mill, The History of British India, vol. 4 
The History of British India in 6 vols. (3rd edition) (London: Baldwin, Cradock, and Joy, 1826). Vol. 4.
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Financial Difficulties—Campaign of General Goddard on the Bombay side of the Mahratta Country—Attack on the Bengal side—Peace with Scindia—Supreme Court of Judicature—Efforts of the Supreme Court to extend its Jurisdiction — Their Effects upon Individuals — Upon the Collection of the Revenue—Upon the Administration of Justice — Interference of Parliament claimed—Granted—The Chief Justice placed at the Head of the Sudder Duannee Adaulut — Chief Justice recalled — Judicial and Police Regulations — Provincial Councils abolished, and a new Board of Revenue set up.
BOOK V. Chap. 6. 1780.We return to the events which, during these great transactions in the south, had taken place in Bengal, and other parts of the British dominions in India.
Before the commencement of the war with Hyder, the finances of the Company in every part of India had become a source of distress. The scanty resources of Bombay, which seldom equalled the expenditure of a peace establishment, had not, even with the supplies which had been sent from Bengal, sufficed to save that Presidency from the necessity of draining the channels of loan, and from sinking in arrear so deeply, even with the pay of the army, that the General, in the month of August, 1780, declared it was no longer fit to be depended upon.1 Even Bengal itself, though it had enjoyed entire tranquillity, andBOOK V. Chap. 6. 1780. had only contributed to the maintenance of Goddard’s army, and to other feeble operations against the Mahrattas, was so completely exhausted, that, in August, 1780, the Supreme Council were again reduced to the expedient of contracting debt; and before the end of the year, when exertions in favour of Carnatic were required, they were obliged to announce to the Directors the probability of a total suspension of the investment.1
In the important consultations of the 25th of September, 1780, upon the intelligence of the fatal irruption of Hyder, it was resolved, that terms of peace should be offered to the Mahrattas, through the mediation of the Rajah of Berar; and on the 2d of October a draught of a treaty was prepared, according to which all conquests made by the English were to be surrendered, with the exception of the fort of Gualior, destined for the Rana of Gohud, and of that part of Guzerat which had been ceded to Futty Sing Guicowar: Should the fort of Bassein, however, be taken by the English forces, before the final agreement, it was proposed to cede, in its stead, all the BOOK V. Chap. 6. 1780.territory and revenue which they had acquired by the treaty of Poorunder. Of this draught, a copy, with power of mediation, was sent to the Rajah of Berar; and at the same time letters were written to Nizam Ali, to the Peshwa, to Scindia, and to the Poonah ministers, apprising them of the terms on which the English government was ready and desirous to conclude a treaty of peace.
On the 16th of October General Goddard, reinforced by a body of Europeans from Madras, and relieved from apprehension of Holkar and Scindia by intelligence that an attack would be made upon their dominions from the upper provinces of Bengal, put the army in motion from Surat. The roads were still so deep, and the rivers so full, that they were unable to reach their ground before Bassein till the 13th of November. From the strength of the place, and the number of the garrison, the General deemed it necessary to carry on his operations with regularity and caution. A battery of six guns and six mortars, within nine hundred yards of the fort, was completed on the morning of the 28th. Under cover of its fire, approaches were carried on to a spot within 500 yards of the wall, where a battery of nine heavy guns was opened on the morning of the 9th of December, while a battery of twenty mortars began to play upon one of the parapets. On the morning of the 10th, when a practicable breach was nearly effected, the fort made an offer of surrender, but in consequence of some demur the fire was renewed, and next morning the enemy yielded at discretion.
After the reduction of Bassein, the General repaired to Bombay for the purpose of settling with the Committee the further operations of the army, and there received intelligence of the irruption of Hyder into Carnatic, and the destruction of Colonel Baillie’s detachment. An attack, which might operateBOOK V. Chap. 6. 1781. as a diversion, on the western side of Hyder’s dominions, was pressed upon the Presidency of Bombay by that of Madras; and at the same time arrived from the Supreme Council intelligence of their designs respecting peace with the Mahrattas, and a copy of the treaty which it was intended to offer. Though directed immediately to obey a requisition in writing from the Peshwa to suspend hostilities, General Goddard and the Committee of Bombay were exhorted to prosecute the war with vigour, till such time as that application should arrive. After several fluctuations of opinion, it was determined not to evacuate Tellicherry; as a place which, though burthensome to defend, might ultimately be of importance for commencing an attack upon the dominions of Hyder: And, notwithstanding the desire of the Committee to secure Concan, or the country below the Ghauts, it was resolved, upon the recommendation of the General, to occupy the passes of the mountains, and to threaten the enemy’s capital, advancing into the country as far as might appear consistent with the safe return of the army. The terror which might thus be inspired was expected to operate as the most effectual inducement to peace; and that terror would be the more powerful, as the two leading chiefs, Scindia and Holkar, were understood to be occupied in the defence of their own dominions against the attack carried on from Bengal.
The army marched from Bassein about the middle of January. The Mahratta force in Concan was computed at 20,000 horse and foot, with about fifteen guns. It was commanded by Hurry Punt Furkea, and posted on the road to B’hore Ghaut, by which, as the easiest of the passes, and that leading most directly to the Mahratta capital, it was expected that BOOK V. Chap. 6. 1781.the English would endeavour to ascend. Notwithstanding the numerical superiority of the enemy, they offered little resistance in the level country, and with only a few slight skirmishes, the English reached the foot of the pass on the 8th of February. The enemy had ascended; and from intelligence it appeared that they had assembled in great force to dispute the passage. Holkar, whom the attack from Bengal had been too feeble to retain on the opposite side of the Mahratta country, and who had left Scindia as sufficient to cope with the force by which he was assailed, had lately joined the Poonah army, of which the whole was encamped near the top of the Ghaut. The General, who saw the advantage of audacity and dispatch, resolved to storm the pass the very night of his arrival. The storming party, which consisted of the grenadiers, headed by Captain Parker, entered about midnight, and with consummate gallantry, forcing the enemy from every battery and post which they occupied, reached the summit at five o’clock in the morning.
At the top of the Ghaut, the English army were not distant more than forty-five miles from the Mahratta capital. On the 12th, a person arrived, commissioned, as he said, by Nana Furnavese, the Poonah minister. His object was, to declare the earnest desire of the Minister to obtain the friendship of the English; but he brought with him no credentials to authenticate his mission. For this, he apologized, by the doubts which Nana felt of the disposition towards him entertained by the English. Goddard was not willing that a mere adherence to forms should obstruct the acquisition of peace. He instructed him to assure the minister of the readiness with which the English would second his views for a termination of the existing contests and the formation of an alliance against their respective enemies. Among otherBOOK V. Chap. 6. 1781. circumstances, the Mahratta agent affirmed, that the copy of the treaty which had been sent for transmission to the Regent of Berar, the Regent, who had not approved of it, had declined to forward. The General, therefore, transmitted to the minister a copy, together with information of his being vested with full powers to treat; and agreed to wait eight days for an answer. The answer arrived within the time prescribed, containing a simple and explicit rejection of the terms. Fully acquainted with the progress of Hyder in Carnatic, and regarding the eagerness of the English for peace, as a declaration of inability for war, the Mahrattas, at this juncture, expected greater advantages from continuing, than terminating hostilities. To the application of the Supreme Council to Moodajee, that he would employ his mediation between them and the Poonah government, an answer was not received till the 9th of January, 1781; and when it did arrive, it contained so many objections to the treaty, and even advanced so many pretensions, on the part of Moodajee himself, that it not only convinced them of the little prospect of peace, but brought in doubt the sincerity of the former professions of that person himself.
Notwithstanding this disappointment in the hopes of peace, and the approach of the English army to the capital of the enemy, Goddard, convinced that possession of the capital, which the enemy had determined to burn, would by no means ensure the attainment of his object, declined any further progress into the interior of the country; and recommended a system of defensive warfare, permitting the return of the Madras troops to the coast of Coromandel, both for assistance against Hyder, and to lessen the pressure upon the Bombay finances.
BOOK V. Chap. 6. 1781.After maintaining their post with little disturbance at the head of the Ghauts till the 17th of April, the English descended secretly during the night. The difficulty of supplying the troops with provisions, while the enemy, it was found, could descend by other passes, and intercept their convoys; together with the expense of fortifying the post at the top of the Ghauts, appeared to surpass the advantage of maintaining it. The enemy descended in pursuit the following day. The route from the bottom of the hills to the coast was about twenty-four miles, through a country full of bushes, thickets, and narrow defiles. This was highly favourable to the irregular and unexpected assaults of the Mahrattas, who greatly harassed the English during the three days of the march; but though several lives were lost, and among the rest that of Colonel Parker, the second in command, no material impression was made, nor any loss sustained of the baggage and stores. The Mahratta army re-ascended the Ghauts; and the English, left in possession of Concan, prepared, with the Madras detachment, which the reduced state of the battalions now rendered it desirable to retain, to remain at Callian through the approaching monsoon.1
On the Bengal side of the Mahratta country, it was determined, notwithstanding the eminent services of Major Popham, to supersede that officer in the command, and relieve his corps by that of Colonel Carnac, who, having already advanced into the territory of the Rana of Gohud, was, about the beginning of the year 1781, commanded to penetrate, at the head of five battalions of sepoys, towards Oogein, the capital of Scindia. The force employed in this service, as it was too small to prevent Holkar from returning to assist in turning the balance againstBOOK V. Chap. 6. 1781. Goddard, so it was too feeble to intimidate even Scindia alone, and seems to have been saved from destruction, or at any rate from flight, by nothing but a fortunate exploit. Having reached Seronge, in the month of February, it was surrounded by a powerful enemy; its supplies were cut off; it was harassed on all sides; the princes, expected to join it, stood aloof; it was reduced to distress for want of provisions: and the commanding officer was obliged to apply by letter for the troops stationed at Futtyghur, under Colonel Muir, to enable him to retreat into the country of the Rana. Colonel Muir arrived at Gohud on the 29th of March. But before this time Colonel Carnac was reduced to such extremity, that on the 23d of the same month he had summoned a council of war, in which Captain Bruce, the officer who commanded the storming party at the taking of Gualior, recommended, as the only possible means of preserving the army, to make that very night an attack upon the camp of Scindia. After some debate and hesitation, the resolution was adopted. At sunset on the 24th, the army moved from their ground, and after a march of thirteen hours arrived at the camp. The surprise was, happily, complete; and all the terror and confusion ensued which usually result from a nocturnal assault unexpectedly falling upon a barbarian army. The enemy dispersed, and fled in disorder, leaving several guns and elephants, with a quantity of ammunition, in prize to the victor.
Colonel Muir was so retarded, by want of cattle for the conveyance of provisions, and by other difficulties,1 that he arrived not at Antry till the 4th of April; and, as senior officer, upon joining Carnac, he BOOK V. Chap. 6. 1781.assumed the command. In order to overcome the backwardness of the Rana of Gohud, whom the apparent feebleness of the English led to temporize, and even to intrigue with Scindia, directions were given to place him in possession of the fort of Gualior, which had been professedly taken only for him. Though the English were now enabled to remain within the territory of Scindia, they were too feeble to undertake any active operations; and spent several months in vain endeavours to induce the Rana of Gohud, and the neighbouring chieftains, to yield them any efficient support. In the mean time the army of Scindia lay close to that of the English, which remained at Sissai, a place within the Mahratta dominions, several days’ march beyond the frontiers of Gohud. The Mahratta horse daily harassed the camp, and cut off the supplies. And the troops were reduced to great distress, both by sickness and want of provisions.1 Happily the resources of Scindia, too, were not difficult to exhaust; and he began seriously to desire an end of the contest. About the beginning of August, an overture was made, through the Rana of Gohud, which the English commander encouraged; and on the 16th of that month, an envoy from Scindia, with powers to treat, arrived in the English camp. Similar powers were transmitted to Colonel Muir. Negotiation commenced; and on the 13th of October a treaty was concluded. All the territory which the English had conquered on the further side of the Jumna was to be restored to Scindia: On the other part, Scindia was not to molest the chiefs who had assisted the English, or to claim any portion of the territory which the English had annexed to the dominions of the Rana of Gohud: It was also agreed, that Scindia should use his endeavoursBOOK V. Chap. 6. 1781. to effect a peace between the English and their enemies, Hyder Ali, and the Peshwa.1
During these proceedings the Governor-General and Council were involved in other affairs of no ordinary importance.
When the wisdom of parliament embraced the subject of the government of India, and by its grand legislative effort, in 1773, undertook to provide, as far as it was competent to provide, a remedy both for the evils which existed, and for those which might be foreseen, a Court of Judicature was created, to which the title of Supreme was annexed, and of which the powers, as well as the nomination of the judges, did not emanate from the Company, but immediately from the King. It was framed of a Chief Justice and three puisné Judges; and was empowered to administer in India all the departments of English law. It was a court of common law, and a court of equity; a court of oyer and terminer, and gaol delivery; an ecclesiastical court, and a court of admiralty. In civil cases, its jurisdiction extended to all claims against the Company, and against British subjects, and to all such claims of British subjects against the natives, as the party in the contract under dispute had agreed, in case of dispute, to submit to its decision. In affairs of penal law, its powers extended to British subjects, and to another class of persons, who were described, as all persons directly BOOK V. Chap. 6. 1781.or indirectly in the service of the Company, or of any British subject, at the time of the offence.
In the establishment of this tribunal, the British legislature performed one important act of legislative wisdom. They recognized, and by adopting they sanctioned, the principle, that to leave any part of the emoluments of judges, as so great a portion of them in England is left, to be made out of fees extracted from the suitors in their own courts, is an abuse; an infallible cause of the perversion of judicature. They enacted that a sufficient salary should be fixed for the judges; that no additional emolument, in the shape of fees, or in any other, should accrue from their judicial functions. A sure temptation to exert, for the multiplication of suits and of their expenses, the great powers of judges, was so far, accordingly, taken away; and that oppression which is inflicted upon the public by the unnecessary delay, vexation and expense of judicial proceedings, was in part deprived of its fundamental and most operative cause.1
On the principal ground, however, the parliament, as usual, trode nearly blindfold. They saw not, that they were establishing two independent and rival powers in India, that of the Supreme Council, and that of the Supreme Court; they drew no line to mark the boundary between them; and they foresaw not the consequences which followed, a series of encroachments and disputes, which unnerved the powers of government and threatened their destruction.2
The judges had not been long in the exercise ofBOOK V. Chap. 6. 1781. their functions, when the effects of their pretensions began to appear. The writs of the Supreme Court were issued at the suit of individuals against the Zemindars of the country, in ordinary actions of debt; the Zemindars were ordered to Calcutta to make appearance, taken into custody for contempt if they neglected the writ, or hurried from any distance to Calcutta, and, if unable to find bail, were buried in a loathsome dungeon.1 In a minute of General Clavering, Colonel Monson, and Mr. Francis, dated the 11th of April, 1775, they declare that process of this description had been issued into every part of the provinces. “Zemindars,” they add, “farmers, and other proprietors of the lands, have been seized upon their estates, and forcibly brought up to the Presidency, at the suit or complaint of other natives, and detained there, or obliged to give bail, according to the nature of the case.” By these proceedings, the minds of the natives were thrown into the utmost consternation and alarm. They saw themselves surrounded with dangers of a terrible nature, from a new and mysterious source, the operations of which they were altogether unable to comprehend. The principles of English law were not only different, in many important respects, from those to which they had hitherto been indebted for the protection of every thing which BOOK V. Chap. 6. 1781.they held dear; but opposite and shocking to some of their strongest opinions and feelings. The language of that law; its studied intricacies and obscurities, which render it unintelligible to all Englishmen, who have not devoted a great part of their lives to the study of it; rendered it to the eye of the affrighted Indian, a black and portentous cloud, from which every terrific and destructive form might at each moment be expected to descend upon him. Whoever is qualified to estimate the facility and violence with which alarms are excited among a simple and ignorant people, and the utter confusion with which life to them appears to be overspread, when the series of customs and rules by which it was governed is threatened with subversion, may form an estimate of the terrors which agitated the natives of India, when the process of the Supreme Court began to operate extensively among them.
The evils, not of apprehension merely, but of actual suffering to which it exposed them, were deplorable. They were dragged from their families and affairs, with the frequent certainty of leaving them to disorder and ruin, any distance, even as great as 500 miles, either to give bail at Calcutta, a thing, which, if they were strangers, and the sum more than trifling, it was next to impossible they should have in their power; or to be consigned to prison for all the many months which the delays of English judicature might interpose, between this calamitous stage, and the final termination of the suit. Upon the affidavit, into the truth of which no inquiry whatsoever was made; upon the unquestioned affidavit of any person whatsoever; a person of credibility, or directly the reverse, no difference; that the individual prosecuted was within the jurisdiction of the court, the natives were seized, carried to Calcutta, and consigned to prison, where, even if it was afterwards determinedBOOK V. Chap. 6. 1781. that they were not within the jurisdiction of the court, and of course that they had been unjustly prosecuted, they were liable to lie for several months, and whence they were dismissed totally without compensation. Instances occurred, in which defendants were brought from a distance to the Presidency, and when they declared their intention of pleading, that is, objecting, to the jurisdiction of the court, the prosecution was dropped; in which the prosecution was again renewed, the defendant again brought down to Calcutta, and again, upon his offering to plead, the prosecution was dropped. The very act of being seized was, in India, a circumstance of the deepest disgrace, and so degraded a man of any rank, that, under the Mahomedan government, it was never attempted, except in cases of the greatest delinquency.1
Not only the alarm which these proceedings diffused throughout the country, but the effects with which they threatened to strike the collection of the revenue, strongly excited the attention of the Company’s servants and the members of their government. To draw from the ryots the duties or contributions which they owe, is well known to be a business of great detail and difficulty, requiring the strictest vigilance, and most minute and persevering applications. Any thing which strikes at the credit of the Zemindar, farmer, or other functionary, by whom this duty is performed, immediately increases the difficulty, by encouraging the ryot in the hope of defeating the demand by evasion, cunning, obstinacy or delay. The total absence of the functionary, called away to attend the proceedings of the Supreme Court, BOOK V. Chap. 6. 1781.his forcible removal; or the ignominious seizure of his person, went far to suspend the collections within his district, and to cut off the source of those payments for which he was engaged to the Company.
It had been the immemorial practice in India, for that great branch of the government entrusted with the collection of the revenue, to exercise the department of jurisdiction which regarded the revenue, to decide in that field all matters of dispute, and to apply the coercive process which was usual for enforcing demands. These powers were now exercised by the Provincial Councils, and the courts established, by the name of Duannee Adaulut, under their authority. The mode of decision was summary, that is, expeditious, and unexpensive; and the mode of coercion was simple, and adapted to the habits and feelings of the people. One or more peons, a species of undisciplined soldiery, employed in the collections, was set over the defaulter, that is, repaired to his house, and there watched and restrained him, till the sum in demand was discharged. In a short time the Supreme Court began to interfere with these proceedings. The defaulters were made to understand by the attorneys, who had spread themselves pretty generally through the country, that if they would throw themselves upon the Supreme Court, they would obtain redress and protection. They were taught, as often as any coercive process was employed by the judges of revenue, to sue out a writ of Habeas Corpus in the Supreme Court; where it was held competent, and was in practice customary, for the judges to set them at liberty upon bail. This excited still more violently the apprehensions of the members of government, in regard to the collection of the revenue. As the disposition to withhold the payment is universal and unremitting in India, and never fails to lay hold of every occasion which affords any chance either ofBOOK V. Chap. 6. 1781. delay, or evasion; they apprehended that such a resource, held up to the people, would breed a general tendency; and they concluded, with justice, that if, in the innumerable cases in which compulsion was necessary, it could only be exercised through the tedious, laborious, and expensive forms of English law, the realizing of a revenue in India was a thing altogether impossible.
While the Company exercised the office of Duan, in other words, that department of government which regarded the collection of the revenue, and in civil cases the administration of justice, they had been careful to keep up the appearance of the Nizamut, or remaining branch of the ancient government, in the person of the Nabob; and to him, the penal department of judicature, under the superintendance of the Naib Duan, or deputy Nabob, appointed by the Company, had in particular been entrusted. To this government of the Nabob; which, though totally dependent upon the servants of the Company, and subservient to their will, was yet the instrument of a great portion of all that security for order and protection which existed in the country; the Supreme Court declared, that they would pay no regard. In their representation, under date of the 15th of January, 1776, the Governor and Council complain to the Court of Directors, that Mr. Justice Hyde had declared publicly on the bench, “The act of parliament does not consider Mubaruck al Dowla as a sovereign prince: The jurisdiction of this court extends over all his dominions:” That Mr. Justice Le Maistre had said, “With regard to this phantom, this man of straw, Mubaruck al Dowla, it is an insult on the understanding of the Court, to have made the question of his sovereignty: But it comes from BOOK V. Chap. 6. 1781.the Governor-General and Council: I have too much respect for that body to treat it ludicrously, and I confess I cannot consider it seriously:” And that the Chief Justice had treated the Nabob, “as a mere empty name, without any real right, or the exercise of any power whatsoever.”
By these pretensions, the whole of that half of the powers of government which were exercised in the name of the Nabob, was taken away and abolished. By another set of pretensions, the same abolished. By another set of pretensions, the same abolition was effected of the other half, which, in the character of Duan, were exercised in the name of the Company.
In the same address, the Governor-General and Council add the following statement: “Mr. Le Maistre, in his late charge to the grand jury, declares that a very erroneous opinion has been formed by the Governor-General and Council, distinguishing the situation of the East India Company, as Dewan, from the common condition of a trading company; he makes no scruple of avowing a decided opinion, that no true distinction, in reason, in law, or justice, can or ought to be made, between the East India Company as a trading company, and the East India Company as Dewan of these provinces. With respect to the management of the territorial revenue, he is pleased to declare, that the only true interpretation of the act of parliament is, that our management and government is not exclusive, but subject to the jurisdiction of the King’s Court; and that it will be equally penal for the Company, or for those acting under them, to disobey the orders and mandatory process of the King’s Court, in matters which merely concern the revenues, as in any other matter or thing whatsoever.” The Governor and Council then declare; “By the several acts and declarations of the judges, it is plain, that the Company’s office of DewanBOOK V. Chap. 6. 1781. is annihilated; that the country government is subverted; and that any attempt on our part to exercise or support the powers of either, may involve us and our officers in the guilt and penalty of high treason; which Mr. Justice Le Maistre, in his charge, expressly holds out, in terrorem, to all the Company’s servants and others, acting under our authority.”
It would be difficult, in any age or country, to discover a parallel to the conduct, which this set of judges exhibited, on the present occasion. Their own powers, as it was impossible for them not distinctly to see, were totally inadequate to the government of the country; yet they proceeded, contrary to the declared, though badly expressed, intention of the legislature, to avail themselves of the hooks and handles,1 which the ensnaring system of law, administered by them, afforded in such abundance, to draw within their pale the whole transactions of the country; not those of individuals only, but those also of the government. That this was to transfer the government into their hands is too obvious to require illustration. When a government is transferred from one to another set of hands, by a simple act of despotism, every branch of authority is directly supplied; the machine of government remains entire; and the BOOK V. Chap. 6. 1781.mischief may be small, or the advantage great. But when the wheels of government were threatened to be stopped by the technical forms of a court of English law; and when nothing but those forms and a set of men who could ostensibly perform nothing but through the medium of those forms and the pretence of administering justice, was provided to supply the place of the government which was destroyed, a total dissolution of the social order was the impending consequence. The system of English law was so incompatible with the habits, sentiments, and circumstances, of the people, that, if attempted to be forced even upon that part of the field of government which belonged to the administration of law, it would have sufficed to throw the country into the utmost disorder, would have subverted almost every existing right, would have filled the nation with terror and misery, and being, in such a situation, incapable of answering the purposes of law, would have left the country in a state hardly different from that, in which it would have been, under a total absence of law: But when the judges proceeded to apply these forms to the acts of government, the powers of administration were suspended; and nothing was provided to supply their place. Either with a blind ignorance of these consequences, which is almost incredible, unless from our experience of the narrowness which the mind contracts by habitual application to the practice of English law, and by habitual indulgence of the fancy that it is the perfection of reason; or, with a disregard of these consequences, for which nothing but a love of power too profligate to be stayed by any considerations of human happiness or misery is sufficient to account, the judges proceeded, with the apparent resolution of extending the jurisdiction of their court, and leaving as little as possibleBOOK V. Chap. 6. 1781. of the business of the country exempt from the exercise of their power.
To palliate the invasions which they made upon the field of government, they made use of this as an argument; that the great end of their institution was to protect the natives against the injustice and oppression of the Company’s servants, and that without the powers which they assumed, it was impossible for them to render to humanity this eminent service. But to force upon the natives the miseries of English law, and to dissolve the bands of government, was to inflict upon the people far greater evils, than those from which they pretended to relieve them. If the end proposed by the legislature was really to protect the natives from the injustice of Englishmen, they made a very unskilful choice of the means.
The representations, upon this subject, which the Governor-General and Council transmitted to England, induced the Court of Directors, in the month of November, 1777, to lay a statement of the case before the Ministers of the Crown. The supposed dignity of a King’s Court, as it inflated the pretensions of the Judges, who delighted in styling themselves King’s Judges; contrasting the source of their own power with the inferior source from which the power of the Governor-General and Council was derived; so it imposed awe and irresolution upon the Court of Directors. They ventured not to originate any measure, for staying the unwarranted proceedings of the Supreme Court; and could think of no better expedient, than that of praying the ministry to perform this important service, in their behalf.
The Directors represented to the ministry, that the Zemindars, farmers, and other occupiers of land, against whom writs, at the suit of natives, had been BOOK V. Chap. 6. 1781.issued into all parts of the provinces, it was not the intention of the legislature to submit to the jurisdiction of the Supreme Court; that the proceedings, by which they were hurried to a great distance from their homes, their persons arrested, and a long confinement in the common goal inflicted upon them, appeared to be replete with irregularity and injustice; that the parties are “sure to suffer every distress and oppression with which the attorneys of the court can easily contrive to harass and intimidate them,” before the question whether they are subject or not to the jurisdiction of the court can be so much as broached; that, after pleading to the jurisdiction, they are sure of an adverse decision, “unless they are able to prove a negative; that is, unless a native of Bengal is able, from an act of parliament which the Governor-General and Council have declared liable to different constructions, to prove himself not subject to the jurisdiction of the Supreme Court;” that the consequences were in the highest degree alarming, as almost all the Zemindars in the country, standing in the same predicament, felt themselves exposed to the same dangers; as the disgust and hatred of the natives were excited by the violation of their customs and laws; and the collection of the revenue was impeded, and even threatened with suspension.
They represented also, That the Supreme Court, beside extending its jurisdiction to such persons, had extended it also to such things, as it was clearly the intention of the legislature to exempt from it: That these were “the ordering, management, and government of the territorial revenues,” including the powers which that ordering and government required: That over this department, the whole Bench of Judges had declared their resolution to exercise a power, superior to that of the Company: That, accordingly, the processBOOK V. Chap. 6. 1781. of the ordinary Revenue Courts was opposed; persons whom they had confined being released by the Supreme Court; suits which were cognizable in none but the Revenue Courts being instituted and entertained in the Supreme Court; prosecutions being carried on by the Supreme Court against the Judges of the Revenue Courts, for acts done in the regular performance of the business of the Court; farmers of the revenue, who had fallen into arrear, refusing to obey the process of the Revenue Courts, and threatening the Judges with prosecution in the Supreme Court, if any coercive proceedings were employed: That in consequence of these acts, in some instances, the operation of the Dewanee Courts was suspended; in others, the very existence of them destroyed: And that the Governor-General and Council, in their capacity of a Court of Appeal or Sudder Dewanee Adaulut, were discouraged from the exercise of this important jurisdiction, under the apprehension that their powers might be disputed, and their decrees annulled.1
Under the third head of complaint, the Directors represented, That the Supreme Court had, on the pretext of requiring evidence, demanded the production in Court of papers liable to contain the most BOOK V. Chap. 6. 1781.secret transactions of the government; that the Secretary of the Council was served with the writ called a sub pœna duces tecum, and attending the Court without the papers was informed that he had brought upon himself all the damages of the suit; that upon his representing the impossibility of his producing in Court the records of the Council which the Council had forbidden to be so produced, he was ordered to declare which of the Members of the Council voted for the refusal of the papers, and which (if any) for the production; that upon his demurring to such a question a positive answer was demanded, and every Member of the Council who had concurred in the refusal was declared to be liable to an action; that the Council agreed to send such extracts as had a reference to the matter in dispute, but persisted in the refusal to exhibit their records; that of this species of demand various instances occurred; and that it was manifestly impossible for the Board to deliberate and act as a Council of State, and as the administrative organ of government, if publication of their minutes might at any time be called for, and if every Member was answerable, in an action of damages, for any measure in which he concurred, to as many persons as might think themselves aggrieved by it.
In the fourth place, the Directors represented, That the penal law of England was utterly repugnant to those laws and customs by which the people of India had been hitherto governed; that, nevertheless, Maha Rajah Nuncomar, a native of high rank in Bengal, was indicted, tried, convicted, and executed, for an offence, which was not capital by the laws of the country where the offence was committed; that if the Court was unable to mitigate the punishment, it might have deemed it prudent to use its power of respiting the prisoner until the pleasure ofBOOK V. Chap. 6. 1781. the King was known; that this the Directors “conceived to be a matter of the most serious importance, and big with consequences the most alarming to the natives of India; that the Judges seemed to have laid it down as a general principle, in their proceedings against Nuncomar, that all the criminal law of England is in force, and binding, upon all the inhabitants within the circle of their jurisdiction in Bengal.” The Directors, therefore, adjure the Minister to consider what will be the consequences, if this principle, and the example grounded upon it, were followed up with consistency. “Can it be just,” they say, “or prudent, to introduce all the different species of felony created by what is called the Black Act?—or to involve, as what is called the Coventry Act involves, offences of different degrees in one common punishment?—or to introduce the endless and almost inexplicable distinctions by which certain acts are or are not burglary.” They ask whether Indian offenders, of a certain description, were to be transported to his Majesty’s colonies in America, or sent to work upon the river Thames? And whether every man convicted for the first time of bigamy, “which is allowed, protected, nay almost commanded by their law, should be burnt in the hand if he can read, and hanged if he cannot read?” “These,” they add, “are only some of the consequences which we conceive must follow, if the criminal law of England be suffered to remain in force upon the natives of Bengal. If it were legal to try, to convict, and execute Nuncomar for forgery, on the Statute of George II., it must, as we conceive, be equally legal, to try, convict, and to punish the Subahdar of Bengal, and all his court, for bigamy, upon the statute of James I.”
On the 2d of January, 1777, a suit was instituted BOOK V. Chap. 6. 1781.before the Provincial Council at Patna, which afforded occasion to the Supreme Court of carrying the exertion of their powers to a height more extraordinary than they had before attempted. A person of some distinction and property, a native Mahomedan, died, leaving a widow, and a nephew, who for some time had lived with him, in the apparent capacity of his heir, and adopted son. The widow claimed the whole of the property, on the strength of a will, which she affirmed the husband had made in her favour. The nephew who disputed the will, both on the suspicion of forgery, and on the fact of the mental imbecility of his uncle for some time previous to his death, claimed in like manner the whole of the estate as adopted son and heir of the deceased.
For investigation of the causes the decision of which depended upon the principles of the Mussulman law, the Provincial Councils were assisted by native lawyers, by whose opinion in matters of law it was their duty to be guided. In the present instance, the Council of Patna deputed a Cauzee and two Muftees, by a precept, or perwannah, in the Persian language, directing them to take an account of the estate and effects of the deceased, and secure them against embezzlement; to inquire into the claims of the parties; to follow strictly the rules of Mahomedan law; and report to the Council their proceedings. In all this, nothing appeared which was not reasonable; and which was not according to the approved and established mode of procedure.
On the 20th of January, the Cauzee and Muftees, having finished the inquiry, delivered their report; in which, after a statement of the evidence adduced, they declare their opinion, that neither the widow, nor the nephew, had established their claims, and that the inheritance should be divided according to the principles provided by the Mahomedan law for those casesBOOK V. Chap. 6. 1781. in which a man dies without children and without a will; in other words, that it should be divided into four shares; of which one should be given to the widow; and three to the brother of the deceased, who was next of kin, and father of the nephew who claimed as adopted son. Upon a review of the proceedings of the native Judges, and a hearing of the parties, the Provincial Council confirmed the decree, and ordered the division of the inheritance to be carried into effect. They did more: As it appeared from the evidence that part of the effects of the deceased had been secreted by the widow before they could be secured by the Judges, and that both the will and another deed which she produced, were forged, they put her five principal agents under confinement, till they should account for the goods; and directed that they should be afterwards delivered to the Phousdary, to take their trial for forgery.
It is to be observed, that the widow had opposed all these proceedings from the beginning, not by course of law, but such irregular and violent acts, as suggested themselves to an angry and ignorant mind. When called upon by the Cauzee to appoint, in the usual manner, a vakeel, or representative, to act in her behalf, she positively refused; and when the Cauzee recommended to her a relative, who had lived in the house, was much in her confidence, and acted as her principal agent, she persisted in her refusal, but sent her seal, with a message that the Judges might appoint him if they pleased. Upon the arrival of the Cauzee and Muftees to carry the decree of the Council into execution, the widow resisted. The Cauzee and Muftees proceeded to enforce the orders under which they acted. The BOOK V. Chap. 6. 1781.widow, contrary to their request and remonstrances, left the house, and betook herself to an asylum of Fakeers, which was in the neighbourhood, carrying alone with her certain title deeds, and the female slaves. The Cauzee and Muftees divided the remaining effects, upon the valuation of appraisers mutually chosen by the parties, into four shares, of which the vakeel of the widow chose one for her, and the rest were set apart for the brother of the deceased. The widow refused to submit to the decision, or to accept of her share. She also refused to give up the title deeds, which he had carried away, or the female slaves. In consequence of this proceeding, a petition was presented to the Council, by the nephew, representing that she had not complied with the decree, but by absconding reflected, according to the Mahomedan ideas, disgrace upon the family, and praying that she might be compelled to deliver up the papers and slaves, and to return to the house, under his protection as representative of the heir. An order was directed by the Council to comply with this request. After some time another petition was presented by the nephew, complaining that the Cauzee and Muftees had not yet complied with the injunctions of the Board. Upon this the Council agreed, that the Cauzee should be reprimanded for his delay, and directed to proceed immediately in the execution of his orders. The Cauzee represented by memorial, that he had not only made frequent demands upon the widow, but had placed hircarrahs to watch her, and that in his opinion, that species of constraint, which was authorised by the Mussulman law, and customary in the country, namely restriction from all intercourse by a guard of soldiers, was necessary to be applied. The guard was ordered, and continued for a space of six weeks. The widowBOOK V. Chap. 6. 1781. still refused compliance; and at that time the guard was withdrawn.
The widow was advised to bring an action in the Supreme Court, against the nephew, the Cauzee, and Muftees, on the ground of their proceedings in the cause; and laid her damages at 600,000 sicca rupees, about 66,000l. The objection taken, on the part of the nephew, to the jurisdiction of the Court, the Judges overruled, on the pretence that every renter was a servant of the Company.1 The justification set up for the Cauzee and Muftees was, that they had acted regularly, in their judicial capacity, in obedience to the lawful orders of their legal superiors; that the Provincial Councils were vested with a power of determining suits between the natives, with the advice and assistance of the native lawyers; that the established mode in which the Provincial Councils availed themselves of that advice and assistance was, by directing them to hear the parties, to collect the evidence, and to deliver in a report of the whole, comprehending their opinion of the decision which ought to be pronounced; which decision the Council, upon a review of the whole, or with the addition of such other inquiries as they might think the case required, affirmed, or altered, subject only to an appeal to the Governor and Council; and that a Judge acting in his judicial capacity could not be responsible in damages to those who might suffer by the execution of his decrees.
This defence, which to the eye of reason appears BOOK V. Chap. 6. 1781.appropriate and irrefragable, the Court treated with the utmost contempt; and upon a ground which rouses surprise and indignation. A form of words, among the numerous loose expressions, which fall from the lips and pens of English lawyers, without any binding authority, or any defined and consistent application, occurred to the judges. This was the phrase, Delegatus non potest delegare, “he who is delegated cannot delegate.” And upon this, and no other reason, so much as alleged, they decreed, that the Cauzee and Muftees, for acting regularly, acting as they were obliged to act, and had in fact been accustomed to act ever since the jurisdiction of the country had passed under English control, were liable to actions of damages at the suit of every person whom their proceedings displeased, that is, one at least of the parties in almost every cause. It would be absurd, to attempt, by illustration, to render more apparent the deformities of this proceeding. To quote a maxim of English law, though ever so high in authority, and invariable in its force, as a ground for committing in India a flagrant violation of natural equity, against persons who knew not the English law, nor owned its authority, was an act of chicane, which the history of judicial encroachments, rich as it is in examples of injustice, cannot frequently surpass. It is, however, a maxim, of which, even where admissible, the authority is so little determined, that, like many more, with which the appetite of judges for power is in England so quietly gratified, it has just as little weight or as much, as, in each particular instance, the judge may happen to please. And in a variety of remarkable cases, the established course of English law goes directly against it.1
Deciding, upon the strength of this assemblage ofBOOK V. Chap. 6. 1781. words, that the provincial council could not delegate any authority to the native magistrates, even as their agents; and hence that every thing which these assistant magistrates had performed was without authority, the Supreme Court thought proper to enter minutely and laboriously into the whole of the case, and, after voluminous proceedings, gave judgment against the defendants, damages 300,000 rupees, and costs 9208, amounting to the sum of about 35,000l.1
At the commencement of the suit a capias was granted with a bailable clause. A bailiff proceeded from Calcutta, and arrested at Patna the nephew, and also the Cauzee, as he was returning from his duty in one of the courts of justice. The bail demanded was 400,000 rupees, or about 44,000l. The Council of Patna, struck with consternation, at the probable effects of so extraordinary a procedure, upon the minds of the people, upon the authority of government, upon the collection of the revenue, and upon the administration of justice, which it threatened to stop, by deterring the native lawyers and judges from yielding their services, resolved, as the best expedient BOOK V. Chap. 6. 1781.which the nature of the case afforded, to offer bail for the prisoners, who, after a confinement of some time in boats upon the river were enlarged. The Governor-General and Council, as soon as they were informed of these proceedings, resolved, “That as the defendants are prosecuted for a regular and legal act of government in the execution of a judicial decree (except one of them,1 the plaintiff in the suit before the Dewanee Adaulut at Patna, whose arrest is not for any apparent cause) they be supported and indemnified by government from all consequences from which they can be legally indemnified.”2 Judgment being given, the defendants were put under a guard of Sepoys, that they might be conveyed to Calcutta to be surrendered. The Cauzee, an old man, who had been chief Cauzee of the province for many years, was unable to endure the vexation and fatigue; and he expired by the way. The rest were carried to Calcutta, and lodged in the common gaol, where they remained till relieved by the interference of the British parliament in 1781. By that authority a pecuniary compensation was awarded to them for their losses and hardships, and the Muftees were ordered to be not only reinstated in their former situation and condition, but to be elevated to the office of Mahomedan counsellors to the court and council of Patna.
The Supreme Court and the widow were not satisfied with these proceedings against the native magistrates: An action was also brought against Mr. Law, and two other members of the provincial council at Patna. As this prosecution was instituted for officialBOOK V. Chap. 6. 1781. acts performed in the Company’s service, the Governor-General and Council thought it fit that the Company should bear the burden of their defence. Here too the court decided in favour of the party who brought it jurisdiction; and awarded damages to the amount of 15,000 rupees; which money was paid from the Company’s treasury.
It was in this manner that a thirst for jurisdiction incited the English judges to interfere with the administration of justice in the native civil courts. The following is the manner in which it induced them to interfere with the jurisdiction of the native criminal courts. From a former statement it will be recollected, that the system of criminal judicature among the natives had been left by the Company nearly upon the footing, on which they found it, and on which it had long been established in the country. It was a branch of authority which was reserved to the Nabob in his character of Nazim. The judges of the courts (they were known by the name of Phousdary Courts) were appointed by the Naib Subah, or Nabob’s deputy, by whom their proceedings were reviewed and controled. They were entirely independent of all other authority; and it does appear that, considered as Indian, justice was administered in them without any peculiar strain of abuse. About the middle of the year 1777, an attorney of the Supreme Court, took up his residence at Dacca. In the month of September of that year this attorney proceeded to execute a process of arrest, issued by one of the judges of the Supreme Court, against the Duan, or principal public officer of the Phousdary Court at Dacca. The process was issued at the suit of a man of the low rank of a pyke, or messenger, who had been prosecuted in the Phousdary Court for BOOK V. Chap. 6. 1781.a misdemeanour, convicted, and confined till he made restitution. The action was brought against the principal officer of the court, for trespass and false imprisonment, in the execution of this decree. A native, employed by the attorney as a bailiff, who proceeded to the house of the Phousdar, or chief criminal judge, entered the hall of audience, in which the Phousdar was sitting with several of his friends and the principal officers of his court; and attempted, in a violent and disrespectful manner, to seize the person of his Duan, or principal agent. It is to be observed, that, in India, a man considers an indignity offered to his servants, as in reality offered to himself. No writ or warrant, it was affirmed, was produced by the bailiff; and he was not allowed to perform the arrest. Upon this the attorney proceeded to the house of the Phousdar in person, accompanied by a crowd of attendants; and entered it in a forcible manner, by breaking down the gate. To see violated the sanctuary of his house, the mysterious repository of his wives, is a disgrace to a Mussulman more dreadful than death. The reserve of Eastern manners, and the respect bestowed upon the very walls which contain the sacred deposit of the master, render the forcible entrance of a house an event which occurs only in the exercise of the most violent hostility. It is one of the last outrages which may be expected at the hands of an implacable foe. When the Phousdar of Dacca, therefore, beheld his gate broken down, and an irregular crowd of men bursting into his house, the greatest calamity which could befall him rushed naturally upon his apprehension; and he proceeded to repel a danger, which every honourable Mussulman would resist at the expense of his life. An affray arose in the court of the house. The father of the Phousdar received a wound in the head, from a sword, by an attendant of the attorney; andBOOK V. Chap. 6. 1781. the brother-in-law of the Phousdar was dangerously wounded in the body, with a pistol-shot by the attorney himself.
Mr. Justice Hyde, one of the judges of the Supreme Court, wrote, after hearing of these facts, to the military officer upon the spot, instructing him to afford assistance to the attorney; and adds, “I beg the favour of you, for fear my letters to him should not be suffered to come safe, to tell him, that I highly approve his conduct, and doubt not that he will receive proper support from the court whose officer he is.”1
It is unnecessary in this case any further to pursue the proceedings of the attorney or his court. The Provincial Council gave bail for the Duan; transmitted to the Governor-General and Council an account of the facts; and they concluded their letter in the following words: “It is fitting we should point out to your notice, that all criminal justice is at a stand, and seems not likely to be resumed, until the decisive consequences of the present disputes shall be publicly declared and known. It touches to the very existence of government throughout the province, that the jurisdiction of the Phousdar, and his superior, the Naib Subah, be admitted; free from all doubt or ambiguity. How, otherwise, can it be supposed, a Phousdar will perform any function of his office? How presume to execute a criminal convicted, and sentenced to death by the established laws of the government and his religion, if he is liable himself to stand to actions of damages, or to answer to a criminal accusation, according to the laws of England, for any punishment he may inflict? Paint to yourselves, BOOK V. Chap. 6. 1781.gentlemen, the anarchy and distraction which may arise, if the present uncertainties are not effectually removed?”
In England, one of the notions which judges, and other lawyers, are in a most particular manner eager to stamp upon the public mind is, That the administration of justice is to a most astonishing degree sensitive and delicate: That the acts and character of judges should be treated with exquisite, indeed a religious, respect: That they can hardly bear to be exposed to criticism, or blame, in the slightest degree: And that, if the criticism is to any considerable degree searching and severe, it ought to be repressed and punished, however just, with terrifying penalties. This doctrine, which is so very palatable to the judges in England, and so very favourable to all the abuses of their power, we see in what respect they themselves retain, when their power may be enlarged, by trampling upon it in the dust, by annihilating the power and the dignity of the whole order of judges by whom law was administered to a great people.
These are specimens of the manner in which the Supreme Court in India attempted to carry their pretensions into effect. And specimens are all which here it is possible to adduce. A summary of the principal instances in one department, I am happy to be able to present in the words of Mr. Rous, the great law officer of the Company themselves. “Persons confined by the courts of Dewanee Adaulut are collusively arrested by process from Calcutta, or removed by Habeas Corpus, where the language is as unknown as the power of the court. The process is abused to terrify the people; frequent arrests made for the same cause; and there is an instance of the purchaser of a Zemindary near Dacca, who was ruined by suits commenced by paupers, suits derivedBOOK V. Chap. 6. 1781. from claims prior to his purchase, and who was at last condemned in considerable damages for an ordinary act of authority in his station. Hence the natives of all ranks become fearful to act in the collection of the revenues. The renters, and even hereditary Zemindars, are drawn away, or arrested at the time of the collections, and the crops embezzled. If a farm is sold, on default of payment, the new farmer is sued, ruined, and disgraced. Ejectments are brought, for land decreed in the Dewanee Adaulut. A Talookdar is ruined by the expense of pleading to the jurisdiction, though he prevails. And, in an action, where 400 rupees were recovered, the costs exceeded 1600 rupees. When to these abuses, incident to the institution of the court itself, and derived from distance, and the invincible ignorance of the natives respecting the laws and practice of the court, we add the disgrace brought on the higher orders, it will not, perhaps, be rash to affirm, that confusion in the provinces, and a prodigious loss of revenue, must be the inevitable consequences of upholding this jurisdiction. The Zemindar of Duckensavagepore, upon pretence that he had been arrested, and afterwards rescued, has his house broke open, and even the apartments of his women rudely violated. Another Zemindar surrenders himself to prison, to avoid the like disgrace to his family.”
“We have seen with astonishment,” say the Governor-General and Council, “process of contempt ordered in one instance, and civil process issue in another, against the Naib Nazim of these provinces residing at Moorshedabad, a party not owing allegiance to the King, nor obedience to his laws; deriving no benefit or security whatever, in life or member, in fame, liberty, or fortune, from the administration BOOK V. Chap. 6. 1781.of justice under the authority of these laws; a party, it is worth attention, who is the chief magistrate of criminal jurisdiction throughout the provinces, and in whose jurisdiction in matters of criminal cognizance the judges have not only at all times acquiesced, but in a particular instance have actually resorted to it, in aid and exoneration of themselves.”1
At length a case arose, in which the disputes between the executive and judicial powers reached a crisis. Upon the 13th of August, 1779, a suit was commenced in the Supreme Court, against the Rajah of Cossijurah, by Cossinaut Baboo, his agent at Calcutta. Upon the affidavit of Cossinaut, a capias was ordered to issue, in which bail to the amount of 35,000l. was allowed to be taken. The Rajah absconded, to avoid the execution of the writ, and was unable to fulfil his duty, as Zemindar, in the government of the country, and the collection of its revenues. The writ of capias having been returned as unexecuted, on account of the concealment of the Zemindar, another writ was issued to sequester his land and effects. For the execution of this writ, the Sheriff dispatched to Cossijurah an armed force, consisting of sixty men, headed by a serjeant of the court. It was represented by the Rajah, that they entered the house, and endeavoured to pass into the Zenana, or women’s apartment; that of the servants of the Rajah, who attempted to prevent the dishonour of their master, several were beaten and wounded; that the party then broke open and forcibly entered his Zenana, and plundered his effects; that they committed outrages upon his place of religious worship, and stript it of its ornaments; andBOOK V. Chap. 6. 1781. that a stop was put to the collections, and the farmers prohibited from paying him their rents.
Upon the first intimation of this procedure, the Governor-General and Council, by the advice of the Advocate-General, had come to the resolution of instructing the Rajah not to recognise the authority of the court, or to pay obedience to its process; and orders were sent to the officer commanding the troops at Midnapore, to intercept the party of the Sheriff, and detain them in his custody till further orders. The orders arrived too late to prevent the outrage committed upon the house of the Rajah; but afterwards the whole of the party were seized.1
Affairs having come to this extremity, the Governor-General and Council issued a notification, to all Zemindars, Choudries, and Talookdars, in the three provinces, that, except in the two cases of being British servants, or bound by their own agreement, they were not to consider themselves as subject to the jurisdiction of the Supreme Court, or to obey its process; and the provincial chiefs were forbidden to lend a military force to aid the Court in carrying its mandates into effect.
A rule was granted by the Supreme Court to show cause why an attachment should not issue against the Company’s attorney and the officers who were immediately instrumental in seizing the Sheriff’s officers and their attendants at Cossijurah. The officers were instructed, by the Governor-General and Council to resist the execution of any writ, which had a reference to acts done in obedience to their orders in seizing the persons in question. But the BOOK V. Chap. 6. 1781.attorney was committed to the common gaol of Calcutta for contempt, and a criminal prosecution carried on against him. Upon this, even Mr. Rous remarks,1 “I am sorry to observe, that the judges, at this period, seemed to have lost all temper, particularly in the severe and unexampled manner of confining Mr. Nayler, attorney to the Company, who merely procured information from the office of the number of men employed by the Sheriff, and once gave directions to the vakeel of the Zemindar to withhold his warrant of attorney;—both, acts done in obedience to the Governor-General and Council.”
The Governor-General and Council themselves were at last individually served with a summons from the Supreme Court of Judicature, to answer to Cossinaut Baboo, in a plea of trespass; but finding that the suit was brought against them for acts done in their collective capacity, as the governing organ of the country, they delivered, by the Company’s counsel, a declaration, that they would submit to no proceeding of the Court, in any prosecution against them as individuals, for acts done by them as Governor-General and Council; acts to which the jurisdiction of the Court did not extend.
These proceedings were not brought to this stage, before the middle of March, 1780; and in the mean time a petition to parliament had been prepared and signed, by the principal British inhabitants in Bengal, against the exercise which the Supreme Court of Judicature made of their power; and this, together with a petition from the Governor-General, and members of the Supreme Council, and also a petition from the Company itself, was presented in 1780, and referred to the Select Committee, which afterwards reported at such length on Indian affairs. In defenceBOOK V. Chap. 6. 1781. of the Supreme Court, the only matter which appears, with the exception of the speeches of the Judges in Court, which refer only to the grounds of their proceedings in special cases, is contained in three letters of the Chief Justice, addressed to Lord Viscount Weymouth, Secretary of State; one dated the 26th of March, 1779, and the other two dated the 2d and 12th of March, 1780. In vindication of the attempt to force the jurisdiction of the Court upon the Zemindars, it is affirmed that although, as Zemindars, they are not subject to that jurisdiction, yet, as renters and collectors of the revenue, they are included in the description of servants of the Company. And it cannot be denied that the vague and inaccurate phraseology of the act, a species of phraseology which forms so remarkable a characteristic of the language of English law and is the source of so many evils, did leave open a door to the dispute, and to all the mischief which it produced, and which it threatened to produce; though it is clear as day, from the general import of the act, that no such jurisdiction was intended to be given. To the allegation of the mischievous consequences which would ensure, and which were proved to be so extensive and alarming, the Chief Justice offers no reply. If there is a verbal, or technical reason, to justify the exercise of his power, the consequences, in regard to the happiness or misery of others, are what, from his habits, must to an English Judge appear, in general, as in the present case, very much a matter of indifference. To the accusation of interfering with the administration of criminal justice in the native courts, over which the Supreme Court had undeniably no control, the only defence which is offered by the Chief Justice is, that in those tribunals justice was administered very ill. It is, however, BOOK V. Chap. 6. 1781.abundantly certain, that totally to destroy those tribunals by prosecuting the Judges in the Supreme Court, when, having destroyed them, it was impossible for that Court to substitute any thing in their room, was not the way to improve the administration of justice. If those native Courts were susceptible of reform, as most assuredly they were, though, considering the state of society and the former experience of the people, there was at this particular period some ground for praise as well as for blame, it would have been a fit and noble exercise for the mind of the Chief Justice and his brethren, to have formed an excellent plan for the administration of justice among the natives, and to have recommended it with all the weight of their authority to parliament and the Company.
The motive, in this case, which guided to so desperate a line of conduct cannot be mistaken, and ought not with hypocrisy to be disguised. It was not any conception of good; it was not ignorance of the evil; for it was too obvious to be misunderstood. It was the appetite for power, and the appetite for profit: The power sufficiently visible and extraordinary; the profit more concealed: Nor can the pleasure of exercising unbounded sway, through the forms of administering law, be justly regarded as a feeble inducement. We see what, in this instance, it was capable of producing: And a faithful history of the law of England would exhibit no less wonderful proofs, in the misery which it has brought, and still obstinately binds, upon the people of England. Of this important inlet of evil, with which the British legislature ought to have been well acquainted, they appear, in framing the act for the administration of justice in India, to have had no remembrance or regard. And even when they set that important example of cutting off the direct profit of the Judges in the plunder of the suitors, by depriving them ofBOOK V. Chap. 6. 1781. all direct share in the fees; they did not cut off an indirect profit of no trifling importance, by allowing them to create offices, with emoluments derived from fees; offices of which they enjoyed the patronage, itself a valuable power, and of which they could not fail to discover various ways of disposing for their own advantage. They still, therefore, retained an interest, and a very distinct and operative interest, in the amount of the fees which might be gathered in the Court; and the candour is amusing with which the Chief Justice bewails the decline of those profits, as one of the principal evils, if not the only evil, for he scarcely specifies another, which sprang from the measures taken to circumscribe the jurisdiction of the Court. “But one term,” he says, “has intervened, and the business of the Court, as I estimate, has fallen off near one third, and in a term or two, when the causes already commenced are got rid of, I expect it will be reduced to the trial of a few causes arising in Calcutta. The advocates, attorneys, and officers of the Court, who have not already succeeded, will be reduced to a most deplorable situation. The attorneys have petitioned us, that on account of the difficulty of their procuring subsistence in the present state of things, their numbers may not be increased by new admissions: Though persons may come from England so qualified and recommended, that we may not be able to comply with this requisition, yet I really apprehend we shall do them little service by admitting them; for, it seems to me, it will be only to give them the privilege of starving in company with the present attorneys.”1 That there might be great abundance BOOK V. Chap. 6. 1781.of advocates and attorneys, and that they, and the officers, in regard to whom the Court possessed the patronage, might be richly rewarded, appeared to the Chief Justice a sufficient reason why his court should retain a jurisdiction ruinous to the country. One of the surest effects of an excellent administration of justice, the diminution of the number of law-suits, that is, the diminution of the business of the Courts; an effect which, if produced by the proper cause, is so highly to be desired, is here set down by the judge as one of the greatest of evils. It is no wonder. It was an effect, directly contrary to his profit and power. And it may with assurance be expected, that judges, who enjoy the profits of a defective and vitious system of law, will regard as an evil whatever has any tendency to lesson those profits; that is, any tendency to purify the law of its profitable defects.1
At this stage of the discussions, respecting the administration of justice, a considerable alteration in the constitution of the tribunals, in the civil department of the native law, was brought forward by the Governor-General, and adopted by the Council. AccordingBOOK V. Chap. 6. 1781. to the regulations of 1773, this department was wholly administered by the Provincial Councils, sitting as Duannee Adaulut, or Court of Civil Judicature. It was now, on the 11th of April, 1780, arranged, that the business of these Courts should be divided into two parts; that which peculiarly concerned the revenue; and that which peculiarly concerned individuals. A separate court, styled Duannee Adaulut, was established for the cognizance of such disputes as arose between individuals: All such disputes as respected the revenue continued subject exclusively to the jurisdiction of the Provincial Councils. The new tribunals were severally composed of one covenanted servant of the Company, who was not a member of the Provincial Council, nor dependent upon it; and denominated superintendant of the Duannee Adaulut. The reason adduced for this alteration was, to exonerate the Provincial Councils from part of their burthen, and afforded them more time for attending to the important business of the revenue.
About the same time, an expedient, of which the foregoing alteration was probably contrived as a subsidiary portion, suggested itself to the mind of the Governor-General, for neutralizing the animosities which prevailed between the Sovereign Council and the Supreme Court; and thereby for terminating their disputes. He devised the plan of creating a Court for the Chief Justice, with a large allowance both of power and emolument, dependant on the pleasure of the executive power. The scheme was conducted in the following manner. Along with the establishment of the Provincial Duannee Adauluts in 1773, had been appointed a Sudder Duannee Adaulut at the Presidency, the object of which was BOOK V. Chap. 6. 1781.to receive appeals from the Provincial Adauluts. The Sudder Duannee Adaulut was to consist of the Governor-General and Council in person; but up to this time they had not so much as entered upon the discharge of the functions of this Court; although the Governor-General declared, and the declaration ought not to pass without remark, that, if one half of the time of the Council were devoted to this Court, its important duties could not be adequately discharged.1 If a judicial function of the highest importance, for which there was so extensive a demand, was left for seven years totally undischarged, what an opinion is it proper we should form of the situation of justice during all that time? And what opinion are we to form of a Governor-General and Council, who let justice remain in that situation? If they had time for the duties of the office (and few of the duties of government could be more important), they were inexcusable for not applying it; if they had not time, they were inexcusable for not devising and executing another plan.
In consultation on the 22d of September, 1780, the Governor-General introduced a minute, in which he stated, that the arrangement, established a few months before, respecting the Courts of civil law, had produced not the most desirable effects, but a great deal of inconvenience. “The institution,” he said, “of the new Courts of Duannee Adaulut, has already given occasion to very troublesome and alarming competition between them and the Provincial Councils, and too much waste of time at this Board.” He represented it as the business of the Sudder Duannee Adaulut, not only to receive appeals from these Courts, but to superintend their conduct, revise theirBOOK V. Chap. 6. 1781. proceedings, remedy their defects; and, generally, to form such new regulations and checks, as experience shall prove to be necessary to the purpose of their institution.” He affirmed, that it was impossible for the Council of Government to spare time from its other functions for this important duty; and thus made two declarations: one, that respecting the disorders of the new Duannee Adauluts; another, this respecting the Court of Appeal: and both expressive of the miserable foresight, which attended his own attempts at legislation. He therefore proposed, That the constitution of the Sudder Duannee Adaulut should be totally changed: That it should not consist of the Governor-General and Council: But that the Chief Justice of the Supreme Court of Judicature should be vested with all its powers. A large salary was intended to be annexed to the office; but that, for politic reasons, was not as yet proposed. And it was expressly regulated, that the Chief Justice should enjoy the office and the salary, during the pleasure of the Governor-General and Council. The happy effects, which the Governor-General represented as about to flow from this arrangement, were these; That when the Chief Justice possessed the superintendence of the Duannee Adauluts, that is, obtained the choice portion of their power, the Supreme Court would no longer interfere in their jurisdiction; that when the Chief Justice obtained this addition of power, with the large salary which would attend it, and held them both at the pleasure of the Council, it “would prove an instrument of conciliation between the Council and the Court,” and prevent “those dangerous consequences to the peace and resources of the government, which every member of the Board,” he said, “foreboded from the contest in BOOK V. Chap. 6. 1781.which they had been unfortunately engaged with the Court.” The imputation which was essentially involved in this proposition, and which the Governor-General cast upon the Chief Justice, was the most dishonourable, that ever was thrown upon the character of the most infamous of men. The Chief Justice, in extending so vehemently the jurisdiction of the Supreme Court, had affirmed, That it was an imperious sense of duty which thus constrained him to act; That by the King, whose servant he was, and the act of parliament which constituted the Court over which he was placed, the boundaries of his jurisdiction, that is, of his sacred duties, were assigned and marked out; That from these duties it was not optional for him to recede; That the Judges of the Supreme Court of Judicature were strictly bound to occupy every portion of the field allotted to them; And could not abandon any part of it, either from respect for the Governor-General and Council, or on account of any contingent effects which the discharge of their imperative duties might be supposed to produce. Yet, what did the proposition of the Governor-General to the Council infer? That if they gave to the Chief Justice a sufficient quantity of power, and of money, dependent upon their will, the Chief Justice would confine the pretensions of the Supreme Court within any limits which they might wish to impose. It might naturally have been objected; that to such a proposition the Chief Justice would never consent. But Mr. Hastings, it would appear, was better acquainted with the circumstances of the case: For the Chief Justice immediately discovered, that infinite advantages would arise from the plan. The proposition was, indeed, opposed, with strong arguments, by Mr. Francis and Mr. Wheler. They insisted, that if the Duannee Adauluts were defective institutions, this was not the proper course for their amendment;BOOK V. Chap. 6. 1781. that, if the authority of the Governor-General and Council, under which they acted, was doubtful, resting, as Mr. Hastings, to recommend his measure, had asserted, on the disputed construction of an act of parliament, the authority of the Council to make the Chief Justice of the Supreme Court Judge of the Sudder Duannee Adaulut could not be less than equally doubtful, and the Chief Justice, by accepting the office, would acknowledge their authority, and disclaim the construction which hitherto he had put upon the act; that to accept a new office, with new emoluments, and those dependent upon the pleasure of the Company, seemed inconsistent with the act which had expressly assigned him a large salary, in lieu of all other emoluments; that the duties of the one office were inconsistent with those of the other; especially if the doctrine of the Chief Justice himself were sound, that the Judges of the Adauluts might be sued for damages; because he might thus have to answer, in his own Court, for the acts which he had performed as Judge of Sudder Adaulut; that if the jurisdiction of the Sudder Adaulut would occupy one half of the time of the Council, so it would that of the Chief Justice, whose time was already so much engrossed, that he could not join with his colleagues in performing the important office of a Justice of the Peace for the city and district of Calcutta; that the present exhausted state of the Company’s finances did not justify them in creating a new office to which large appointments were annexed; that the power which would thus be wielded by the Chief Justice would “too much hide the government from the eyes of the natives;” and that, if the attorneys and forms of the Supreme Court were in any degree introduced into the business of the Duannee, “a new and a wide BOOK V. Chap. 6. 1781.door of litigation would be opened.” When these two opponents of the measure advanced as objections, that the new powers allotted to the Chief Justice would endanger the rights of the Council or of the Company as duan, and still might not terminate the endeavours of the Chief Justice to encroach on their department, they estimated far less correctly, than Mr. Hastings, the powers of the instrument which he proposed to employ. They did not consider, that, by rendering the Chief Justice dependant upon themselves for a large portion of money and power, they lost no part of that power which they lent to him, but gained the command even of that which he derived from another source.
It was on the 24th of October resolved, by a majority of the Council, that the Chief Justice should be requested to accept of the office of judge of the Sudder Duannee Adaulut; and at the same time proposed, that 60,000 sicca rupees per annum, nearly seven thousand pounds, should be annexed to the office, under the title of salary, and 7,200 sicca rupees, upwards of eight hundred pounds, under the denomination of rent for an office. The assent of the Chief Justice, and his appointment to the office, immediately ensued.
When intelligence of the reconciliation between the governing Council and the Supreme Court, effected by the appointment of Sir Elijah Impey, with a large salary, to the station of Judge of Appeal from the Duannee Adauluts, was brought to the Court of Directors, the case appeared to them of so much importance, as to require the highest legal advice; and it was laid before the Attorney and Solicitor General, Mr. Dunning, and their own counsel, Mr. Rous. It is a fact, more full of meaning perhaps, when applied to the character of the profession, than of the individuals, that an opinion, inBOOK V. Chap. 6. 1781. the following words—"The appointment of the Chief Justice to the office of Judge of the Sudder Dewannee Adaulut, and giving him a salary for the latter office, besides what he is entitled to as Chief Justice, does not appear to us to be illegal, either as being contrary to the 13 Geo. III, or incompatible with his duty as Chief Justice; nor do we see any thing in the late act, 21 Geo. III, which affects the question"—was signed by the names, J. Dunning, Jas. Wallace, J. Mansfield. The opinion of Mr. Rous, the counsel of the Company, was different, as had been that of their Advocate-General in India; and Mansfield, a few days afterwards, stated, in a short note to the Directors, that doubts had arisen in his mind, whether the acceptance of a salary, to be held at the pleasure of the Company or their servants, was not forbidden by the spirit of the act, or at any rate the reason of the case. He concluded in these words, “I have not been able to get the better of these doubts, although I have been very desirous of doing it, from the great respect I have for the opinions of those gentlemen with whom I lately concurred, and whose judgment ought to have much more weight and authority than mine.”
The question was taken under consideration of the Select Committee of the House of Commons; who treated it, under the guidance of other feelings and other ideas. In their report, the power conferred upon Sir Elijah Impey in his new capacity was represented as exorbitant and dangerous; and so much the more so, that no regular definition of it was any where to be found; no distinct rule of law was any where pointed out; but he was to be guided by his own will; he was to be moderated by no check; he BOOK V. Chap. 6. 1781.was to be restrained by no appeal; and he was to decide upon the fortunes of all the natives of Bengal. He was provided not only with judicial but legislative powers, being authorised to make rules and regulations, that is, to lay down laws, for governing the civil jurisdiction of the country. And all this power was conferred upon a man, who, in the opinion of Mr. Hastings at least, had been distinguished by no disposition to make a moderate use of his power. The grounds of expediency and policy, on which, ostensibly, the measure was put, were treated as having been already proved to be frivolous and weak, by the arguments of Mr. Francis and Mr. Wheler, to which no answer had ever been made. “The diea,” it was affirmed, “of establishing peace upon the ground of adverse claims still unrelaxed, and which nothing even appears to reconcile but the lucrative office given to the Chief Justice, can be maintained but upon suppositions highly dishonourable to the public justice, and to the executive administration of Bengal.” One of the most important features of the case was then held up to view: Mr. Hastings, it was remarked, assumed, and he was well acquainted with the circumstances of the case, in the whole course of his reasoning, that in substance and effect the Chief Justice was the whole of the Supreme Court: By selling his independence to the Governor-General and Council, the Chief Justice, therefore, sold the administration of justice, over every class of the inhabitants of Bengal. “By the dependance of one tribunal,” says the report, “both are rendered dependant; both are vitiated, so far as a place of great power, influence, and patronage, with near eight thousand pounds a year of emoluments, held at the pleasure of the giver, can be supposed to operate on gratitude, interest, and fear. The power of theBOOK V. Chap. 6. 1781. Governor-General over the whole royal and municipal justice in Bengal, Bahar, and Orissa, is as absolute and uncontrollable, as both those branches of justice are over the whole kingdom of Bengal.”
An observation of the Committee is subjoined, to which the highest degree of importance belongs. It is founded upon the grand fundamental truth, That nothing is more favorable to the augmentation and corruption of the executive power, than the faculty of doing, through the medium of the courts of law, things which would awaken suspicion or hatred, if done by the executive itself.
In the situation in which the dependance of the Chief Justice has placed Mr. “Hastings, he is enabled,” say the Committee, “to do things, under the name and appearance of a legal court, which he would not presume to do in his own person. The refractory to his will may appear as victims to the law; and favoured delinquency may not appear, as protected by the hand of power, but cleared by the decision of a competent judge.” When a nation is habituated, even as much as our own is habituated, to pay a blind and undistinguishing respect to the character and acts of judges; the subservience of the courts of law is an instrument of power, of portentous magnitude.
The consequence of the discussion which these transactions underwent, and of the sensations which they produced in the nation, was an act of parliament to regulate anew the Supreme Court of Judicature, and deprive it of the powers which had been found destructive: And, upon a change of ministry, an address to the King was voted by the House of Commons, on the 3d of May, 1782, for the recall of Sir Elijah Impey, to answer to the charge of having BOOK V. Chap. 6. 1781.“accepted an office not agreeable to the true intent and meaning of the act 13 Geo. III.”1
Soon after his appointment to the office of Judge of Sudder Duannee Adaulut, thirteen articles of regulation for the practice of that Court and of the subordinate tribunals were recommended by the Judge, approved by the government, and adopted. With these were incorporated various additions and amendments, which were afterwards published in a revised code, comprising ninety-five articles. The number of provincial Duannee Adauluts was, in April, 1781, increased from six to eighteen, in consequence of the inconvenience experienced from the extent of their jurisdiction.
As the establishment of the police magistrates, called foundars and tannadars, introduced in 1774, followed the example of so many of the contrivances adopted in the government of India; that is, did not answer the end for which it was designed, the judges of Duannee Adaulut were vested with power of apprehending depredators and delinquents, within the bounds of their jurisdiction, but not of trying or punishing them; a power which was still reserved to the Nizamut Adauluts, acting in the name of the Nabob. The Governor-General and Council also reserved a power of authorizing, in cases in which they might deem it expedient, the Zemindars to exercise such part of the police jurisdiction as they hadBOOK V. Chap. 6. 1781. formerly exercised under the Mogul administration. And in order to afford the government some oversight and control over the penal jurisdiction of the country, a new office was established at the Presidency, under the immediate superintendence of the Governor-General. To this office, reports of proceedings, with lists of commitments and convictions, were to be transmitted every month; and an officer, under the Governor-General, with the title of Remembrancer of the Criminal Courts, was appointed for the transaction of its affairs. In November, 1782, in consequence of commands from the Court of Directors, the jurisdiction of the Sudder Duannee Adaulut was resumed by the Governor-General and Council.1
Upon these changes, in the judicial, followed close another change in the revenue system. In 1773 the plan had been adopted of performing the collection of the revenues by means of provincial Councils; but under the declared intention of its being only temporary, and preparatory to another plan; namely, that of a Board of Revenue at the Presidency, by whom, with local officers, the whole business of realizing the revenue might be performed. Afterwards, when disputes with Mr. Francis, and other opposing members of the Council, arose, Mr. Hastings had maintained, that the expedient of provincial Councils was the most excellent which it was possible for him to devise. On the 20th of February, 1781, however, a very short time after the departure of Mr. Francis, he recurred to the plan which was projected in 1773; and decreed as follows, That a Committee of Revenue should be established at the Presidency, consisting of four covenanted servants of the Company; that the BOOK V. Chap. 6. 1781.provincial Councils should be abolished, and all the powers with which they were vested transferred to the Committee; that the Committee should transact, with full authority, all the current business of revenue, and lay a monthly report of their proceedings before the Council; that the majority of votes, in the Committee, should determine all those points on which there should be a difference of opinion; that the record, however, of each dissentient opinion was not expected; that, even upon a reference to the Council, the execution of what the majority had determined should not be staid, unless to the majority themselves the suspension appeared to be requisite; and that a commission of two per cent. on all sums paid monthly into the treasury at Calcutta, and one per cent. on all sums paid monthly into the treasuries which remained under charge of the collectors, should be granted as the remuneration, according to certain proportions, of the members and their principal assistants. Against this arrangement it was afterwards urged, That it was an addition to those incessant changes, which were attended with great trouble, uncertainty, and vexation to the people: That it was a wanton innovation, if the praises bestowed by Mr. Hastings on the provincial Councils were deserved: That it divested the Supreme Council of that power over the business of revenue, with which they solely were intrusted by the legislature, to lodge it in the hands of Mr. Hastings: as the members of the Committee were under his appointment, and the Council were deprived of the means of forming an accurate judgment on all disputed points; hearing the reasons of the majority alone, while those of the minority were suppressed. To these objections Mr. Hastings replied, that the inconveniences of change were no argument against any measure, provided the advantages of the measure surpassed them; that he was notBOOK V. Chap. 6. 1781. bound by his declarations respecting the fitness of the provincial Councils, when the factious disputes which divided them, and the decline of the revenues, proved that they were ill adapted to their purpose; that the business of the revenue was necessarily transferred from the Supreme Council, because the time of the Council was inadequate to its demands; that the Committee of Revenue were not vested with the powers of the Council, in any other sense than the provincial Councils, or any other delegates; but, on the contrary, acted under its immediate control.
It was entrusted to the Committee to form a plan for the future assessment and collection of the revenues. And the following are the expedients of which they made choice: To form an estimate of the abilities of the several districts, from antecedent accounts, without recurring to local inspection and research: To lease the revenues, without intermediate agents, to the Zemindars, where the Zemindary was of considerable extent: And, that they might save government the trouble of detail, in those places where the revenues were in the hands of a number of petty renters, to let them altogether, upon annual contracts.1
See Goddard’s Letter to the Select Committee of Bombay, dated 24th August, 1780, Sixth Report of the Committee of Secrecy, ut supra, p. 111 and 112. See also p. 89 and 90, with the Appendix, No. 256, for details of the extreme poverty and necessities of the Presidency, “necessities,” they say, “now pressing to a degree never before experienced.”
Sixth Report, ut supra, p. 101, 102, 103. In a letter to General Goddard, under date 20th April, 1780, the Supreme Council wrote, “Our resources are no longer equal to the payment of your army.” In another, dated 15th May, they warned the Bombay Presidency against any reliance on continued supply from Bengal, “as neither their resources, nor the currency of the provinces, would endure a continuance of the vast drains,” &c. In a minute of the Governor General on the 28th of August, he said, “Our expenses have been increasing; our means declining. And it is now a painful duty imposed upon me, to propose, that we should again have recourse to the means of supplying our growing wants, by taking up money at interest. The sum I do not propose, because I think it should not be limited.”
Sixth Report of the Committee of Secrecy, 1782, p. 100–113, with the official documents, in its voluminous appendix.
“Difficulties beyond conception,” they are called by Mr. Hastings. See his “Answer to the Fourteenth Charge.”
Mr. Hastings’ Answer, before the House of Commons, on the Fourteenth Charge.
Hastings’ Answer, ut supra; A retrospective View, and Consideration of India Affairs; particularly of the Transactions of the Mahratta War, from its commencement to the month of October, 1782, p. 72. The author of this short narrative has evidently enjoyed the advantage of access to the records of the Bombay government. Some particulars have been gleaned in the “Memoirs of the late War in Asia.” See also the copy of the Treaty with Scindia, in the Collection of Treaties, with the Princes of Asia, printed by the E. I. C. in 1812, p. 97.
They created fee-fed offices, and had the patronage of them; this class of impure motives was not therefore destroyed.
Mr. George Rous, Counsel to the East India Company, in the report which he made to the Directors upon the documents relative to this business submitted to him in 1780, says: “It is remarkable, that the judges on the one hand, and the Council on the other, were perfectly unanimous, in every measure taken throughout this unhappy contention. This fact will lead a candid mind to look for the source of this contention, not in the temper of individuals, but in the peculiarity of their situation. In no country of which I have read, did two powers, like these, ever subsist distinct and independent of each other.” See Report of the Committee of the House of Commons in 1781, on the petitions relative to the administration of justice in India, of Touchet and others, of Hastings, and the other members of the Supreme Council, and of the East India Company, General Appendix, No. 39.
See the description of the horrid gaol of Calcutta, in the First Report of the Select Committee in 1782; see also vol. iii. p. 149.
See the evidence of Mr. Ewan Law, Report of the Committee on Touchet’s Petition, &c. p. 19.
The following is an amusing instance. The Provincial Council of Dacca, the grand administrative and judicative organ of government, for a great province, is thus treated: “Who are the Provincial Chief and Council of Dacca?…. They are no Corporation in the eye of the law…. The Chief and Provincial Council of Dacca is an ideal body…. A man might as well say that he was commanded by the King of the Fairies, as by the Provincial Council of Dacca; because the law knows no such body.” Argument and Judgment of Mr. Justice Le Maistre, on the return to Seroopchund’s Habeas Corpus. Report, ut supra, General Appendix, No. 9. See for another specimen, equally beautiful, a few pages onwards, the maxim Delegatus non potest delegare.
See vol. iii. p. 470, for the rank which was assigned to this, in the Catalogue of Provisions for giving to the people of India the benefits of law. From the first arrival of the Judges of the Supreme Court, the Court of Sudder Duannee Adaulut never acted; and for all that number of years, which intervened till a new regulation, nothing was provided to supply its place. A correspondence on the subject between the Council and the Supreme Court took place in the year 1775. The Court said, that the Councils had a right to receive appeals in all cases in which the Provincial Councils had a legal jurisdiction. This the Council treated as a denial of any right at all: as the Court, by not telling what they meant by “legal,” and reserving to themselves a right of deciding, without rule, on each case which occurred, had the power of deciding just as they pleased.
This decision greatly increased the alarm among the farmers and other landholders. In the province of Bahar they joined in a petition to the Governor and Council, praying for protection against the process of the Supreme Court, or if that could not be granted, for leave to relmquish their farms, that they might retire into another country. Report, ut supra, p. 8, Patna Appendix, No. 14.
In Chancery for example; when cases are referred by the Chancellor to the Master; when commissions are issued to examine witnesses, &c. in the common law courts, when cases are sent to arbitration, &c.
In the judicial investigation, all the chicanery which two of its fruitful sources, the formalities about notice, and the rules of evidence, could supply, was played off, with decisive effect, upon the defendants. Mr. Rous, in his Report quoted above, says, “When they attempted to mitigate the damages, by showing the circumstances, they were embarrassed by the defects of their notice; afterwards by the rules of evidence. Particularly, they were not able to prove the personal delegation of an authority to act for her, by a woman of rank, who could not appear without disgrace; the public acts of her nearest relations in the house being rejected as no legal evidence of her consent. With this defect fell the whole of the exculpation. Lesser difficulties arose from some papers not being translated; others being fair copies, when the foul draughts were the originals.” Patna App. No. 39. The Patna Appendix is a rich mine of information respecting the beauties of English law.
i. e. the nephew.
The Governor-General, though, in his opinion, the examination of witnesses was a part of the procedure which the Council should not have delegated, not only affirmed the power of delegation, but his conviction of the justice of the decision to which, in this case, the Council had come. See his letter to Mr. Law, Patna App. No. 7.
Report, ut supra, p. 24.
See a very important Letter from the Governor-General and Council to the Court of Directors, dated Fort William, 25th January, 1780, Report, ut supra, General Appendix, No. 13.
The substance of this is not denied by the Chief Justice. He only dwells upon the resistance which was offered. See his Letter to Lord Weymouth, Cossijurah Appendix, No. 26.
Report of Mr. Rous, ut supra.
Report, ut supra, Letter from Sir Elijah Impey to Lord Weymouth, 2d March, 1780.
Some opinion may be formed of the sort of faith with which the defence of the Judge was drawn up, by the misrepresentation which he made of facts. He thus describes the circumstances of the Patna case. “A widow of an Omrah of the empire, to whom her husband had, by deeds executed in his life time, given personal effects to the value of some lacs of rupees, and a considerable landed property, was, under pretence that the deeds had been forged, though proof was made to the contrary, plundered and stript of the whole estate, turned out without bed or covering into the public streets, compelled to take refuge in a monument inhabited by fakeers, and to depend upon their charity for subsistence, &c…. This action was likewise brought against Black Agents, whom the Council at Patna had, contrary to their original institution, empowered to bear and determine a petition,” &c. Ibid. Letter from Sir E. Impey to Lord Weymouth, 26th March, 1779. “Black Agents”—this is the appropriate name he bestows on the Magistrates and Judges of the highest respectability in the country. “Hear and determine;”—this is what he affirms, though he knew that they only collected evidence and reported.
Governor-General’s Minute in consultation, 29th September, 1780; See First Report of the Select Committee, 1782, Appendix, No. 3.
For these important proceedings, the Report of the Committee of the House of Commons, to which the petitions respecting the administration of justice in Bengal were referred; and the First Report of the Select Committee of 1781, with the ample documents contained in their voluminous appendixes, have been laboriously consulted. See also The Speech of Sir Elijah Impey delivered at the bar of the House of Commons on the 6th day of February, 1788, with the documents printed in the Appendix; though this defence refers almost solely to the conduct of the Chief Justice in the trial and execution of Nuncomar. See also Colebrooke’s Supplement, p. 14, 23, 128; and the Fifth Report from the Select Committee on India affairs, in 1810, p. 8 and 9.
Fifth Report of the Select Committee in 1810; Second Report of the Select Committee in 1781.
The official documents are found in the Appendix, Sixth Report of the Select Committee, 1782: and in the papers printed for the House of Commons, on the question of the impeachment. See too the Fifteenth article of Charge against Hastings, and the answer.