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Generally speaking, the courts of justice in India were instruments by which Chap. I. the powerful performed oppression, at their pleasure, on the weak. v—v—
Under the ancient government, the English, as well as other European settlers, instead of demanding payment from a reluctant debtor through the courts of law, seized his person and confined it, till satisfaction was obtained. Nor was this so inconsistent with the spirit of the government, as often to excite its displeasure. It was indeed a remedy to which they were not often obliged to recur; because the profit of dealing with them generally constituteda sufficient motive to punctuality. After the power of the English became predominant, the native courts ceased to exert any authority over Englishmen and their agents.* The first attempt which had been made by the English to remedy in their new dominions any of the defects in the administration of justice, was the appointment in 1769 of superintending commissioners to the several districts with directions to inquire into the proceedings of the courts of justice, to restrain iniquitous proceedings, to abolish the chout, and, where a total change should appear desirable, to apply to government for the requisite powers. In 1770, the Naib Duan, and such of the servants of the Company as had their station of service at Moorshedabad, were formed into a Council of Control over the administration of justice. It was to be administered still, on the ancient and established plan; but the Council of Control should interpose as they perceived occasion; every judicial proceeding which concerned the government should come under their review; the trials should be transmitted to them in all criminal cases, and execution suspended, till their opinion was known; all causes relative to the revenue and to property in land should in the first instance be tried in the native courts, but the Council should revise the proceedings of these courts, and have the power of final determination. For supplying the place of the native courts, in a great measure superseded by the new system of revenue; and providing amore perfect judicial establishment; the following scheme was invented and pursued. Two courts, a civil and a penal, were appointed for each district. The criminal court, styled Phousdary Adaulut, consisted of the collector, as superintendent, with the cauzee and muftee of the district, and two Mohlavies, as interpreters of the few. The civil court, stiled Mofussul Duanee Adaulut, consisted of the collector, as President, assisted by the provincial duan and the other officers of the native court. From * For this sketch of the state of the administration of justice in Bengal, see the Seventh Report ofthe Committee of Secrecy in 1773.
Book V. the jurisdiction of this tribunal no cases were excepted, beside those of succession to Zemindaries and Talookdaries, reserved to the President and Council. 1772. .
At the seat of government were also established two supreme courts of appeal. That to which the civil branch of this appellate jurisdiction was consigned received the name of Suddur Duanee Adaulut; and was composed of the President with two Members of the Council, attended by the duan of the Khalsa, and certain officers of the Cutchery, or native court of the city. That on which the penal branch was conferred, obtained the title of Nizamut Suddur Adaulut. It consisted of a chief judge, entitled Darogo Adaulut, assisted by the chief Cauzee, the chief Muftee, and three Mohlavies. This Judge was nominated by the President and Council, who in this case acted in the capacity of Nazim. All capital cases were reported to his tribunal; and, after review, were ultimately referred to the Governor General and Council. After a short experience, however, the superintendance of this court appeared to impose a labour, and to involve a responsibility, which the Governor and Council found it inconvenient to sustain; it was one of the first transactions therefore of the new government which succeeded in 1774 to restore this part of the nizamut to the nominal Nabob, and to carry back the tribunal to Moorshedabad.*
For the district of Calcutta, two courts were established, on the plan of the other district courts; in each of which a Member of Council presided in rotation. In all these courts, it was ordained that records of proceedings should be made and preserved. The chout, or exaction, of a fourth part of all litigated property, for the benefit of the Judge, was abolished. A prohibition was issued against exorbitant fines. The discretionary power, exercised by a creditor over the person of his debtor, was no longer tolerated. And all disputes of property not exceeding ten rupees, were referred to the head farmer of the pergunna or village precinct, to which the parties belonged.f
* Fifth Report, Committee 1810, p. 6. It would appear however, from Hastings' Minute, 21st November, 1775 (Fifth Report of Committee of Secrecy in 1782, Appendix, No. clvii) that Hastings was averse to the entrusting of a native with the uncontrouled administration of criminal justice, and that it was the act of that hostile majority of the Council, by whom Mahomed Reza Khan was in 1775 raised to the office of Naib Nazim. It is necessary at the same time to state, that the gentlemen of the majority (see their letter of the same date, Ibid.) declare that previous to this measure of theirs, "the administration of criminal justice throughout the country was at a stand."—It was at a stand, while under the superintendance of the English rulers: What was it likely to be, under a creature, without one atom of power, having the name of a Nabob?
f Seventh Report, ut supra; General Regulations, dated 15th August, 1772; Colebrooke's Supplement, p. 1.; Fifth Report from the Select Committee on India Affairs, 1810, p. 6.
In the introduction of these measures a specimen is exhibited of the regard Chap. I. which was paid to the feelings or honour of the natives, how great soever their ^ "yfjq"^ rank or deservings. Under the anxious search of the Directors for the cause Conduct disof their intense disappointment in the receipt of treasure from the revenues of the'nativw'o? Bengal, after venting the first portion of their chagrin upon their European, they highest rank, seem to have turned it, with still greater want of consideration, upon their these innovanative agents. In a letter from the Secret Committee, to Mr. Hastings, theirUons' President, dated 28th of August, 1771, they say, "By our general address you will be informed of the reasons we have to be dissatisfied with the administration of Mahomet Reza Cawn, and will perceive the expediency of our divesting him of the rank and influence he holds as Naib Duan of the kingdom of Bengal." Mr. Hastings is then directed, "to issue his private orders for the securing the person of Mahomet Reza Cawn, together with his whole family, and his known Mahomed partizans and adherents," and for bringing them prisoners to Calcutta. For Reza Khan* the secrecy, the precipitation, and the severity (arrest and imprisonment to a man of that rank in India is one of the most cruel of all punishments) the reason assigned was, that otherwise he might "render all inquiry into his conduct ineffectual, and ill-consequences might result from his resentment and revenge." In the endeavour to discover delinquency, they say, "Your own judgment will direct you to all such means of information as may be likely to bring to light the most secret of his transactions. We cannot, however, forbear recommending to you, to avail yourself of the intelligence which Nundcomar may be able to give respecting the Naib's administration: and while the envy which Nundcomar is supposed to bear this minister may prompt him to a ready communication of all proceedings which have come to his knowledge, we are persuaded that no scrutable part of the Naib's conduct can have escaped the watchful eye of his jealous and penetrating rival." *
The opinion which the Directors entertained of the man of whom they desired to make such an instrument, had, on a former occasion, been thus expressed: "From the whole of your proceedings with respect to Nundcomar, there seems to be no doubt of his endeavouring by forgery and false accusations to ruin Ram Churn; that he has been guilty of carrying on correspondence with the country powers, hurtful to the Company's interests; and instrumental in conveying letters between the Shazada and the French Governor-General of Pondicherry: In short, it appears, he is of that wicked and turbulent disposition, that no
* See the Letter, Minutes of Evidence on the Trial of Warren Hastings, Esq., p. 993. 1
Book V. harmony can subsist in society where he has the opportunity of interfering. We v—v~—' therefore most readily concur with you, that Nundcomar is a person improper to be trusted with his liberty in our settlements; and capable of doing mischief, if he is permitted to go out of the province, either to the northward, or to the Deccan. We shall therefore depend upon your keeping such a watch over all his actions, as may be means of preventing his disturbing the quiet of the public, or injuring individuals for the future." *
In a letter of Mr. Hastings, dated 1st September, 1772, he gave the Directors a history of the operations already performed, and of the views from which they had sprung. "As your commands were peremptory, and addressed to myself alone. I carefully concealed them from every person, except Mr. Middleton, whose assistance was necessary for their execution, until I was informed by him that Mahmud Rizza Cawn was actually in arrest, and on his way to Calcutta." Beside these alleged commands of the Directors, " I will confess," he says, "that there were other cogent reasons for this reserve;" and giving these reasons, he describes the importance of the office which was filled by Mahomed Reza Khan, and the susceptibility of corruption which marked the situation of his fellowservants in India. "I was yet but a stranger to the character and disposition of the Members of your administration. I knew that Mahmud Rizza Cawn had enjoyed the sovereignty of this province for seven years past, had possessed an annual stipend of nine lacs of rupees, the uncontrouled disposal of thirty-two lacs entrusted to him for the use of the Nabob, the absolute command of every branch of the Nizamut, and the chief authority in the Dewannee. To speak more plainly; he was, in every thing but the name, the Nazim of the province, and in real authority more than the Nazim.—I could not suppose him so inattentive to his own security; nor so ill-versed in the maxims of Eastern policy, as to have neglected the due means of establishing an interest with such of the Company's agents as, by actual authority, or by representation to the Honourable Company, might be able to promote or obstruct his views." f Office of Ma- The office of Mahomed Reza Khan consisted of two parts; the one was the Khan consist- office of Naib Duan, in which he represented the Company, as Duan or Master ed of two pans. ofthe Revenues. the other was the of Naib Subah, as it was called by the President and Council, more properly the Naib Nazim, in which he represented the Nabob in his office of Nazim, that department of the Subahdaree,
* Company's Letter to their President and Council, dated 22d February, 1764; Minutes, ut supra, p. 996.
f Committee of Secrecy, 1781, Fifth Report, Appendix, No.hr.
the name and ministerial functions of which were still reserved to the native Chap. I. Prince. The functions of the Naib Duan were indeed supplied by the new scheme for levying the revenue. But for those of the Naib Subah, as they called him, no provision as yet was made. The duties and importance of that office, are thus described by Mr. Hastings and Committee; "The office of Naib Subah, according to its original constitution, comprehends the superintendance of the Nabob's education, the management of his household, the regulation of his expenses, the representation of his person, the chief administration of justice; the issuing of all orders, and direction of all measures which respect the government and police of the provinces; the conduct of all public negotiations, and execution of treaties; in a word, every branch of executive government" *
Nothing can afford a more vivid conception of what I may perhaps be allowed Style, or
temper of tli^
to call the style of government which then existed in Bengal, the temper with government in which the difference between some performance and no performance of the Ben6al* duties of government was regarded, than this; that the officer on whom " every branch of the executive government" depended, was arrested some days before the 28th of April; and that it was not till the 11th of July, that a proposition was brought forward to determine what should be done with the office he had filled, f A letter signed by the Company's principal servants at Moorshedabad, and received at Fort William on the 21st of May, declared; "W&must also observe to you the necessity there is for speedily appointing a Naib to the Nizamut, as the business of that department, particularly the courts of justice, is suspended for want of a person properly authorized to confirm the decrees of the several courts of justice, and to pass sentence on criminals, besides various other matters of business, wherein the interposition of the Subah [Subahdar] is immediately necessary."\ Why was not some arrangement taken; or rather, is it necessary to ask, why some arrangement was not taken, to prevent the suspension of the judicial and every branch of the executive government, before the officer was arrested on whom all these great operations depended!
The Rajah Shitabroy held the same office at Patna, for the province of Rajah ShitaBahar, as was held by Mahomed Reza Khan at Moorshedabad, for that ofbroy* Bengal. Because Mahomed Reza Khan was arrested, and sent to Calcutta for
* Consultation 11th July, 1772; Minutes of Evidence, ut supra, p. 972. ■f Comp. Consultation, 28th April, 1772, Minutes, ut supra, p. 972; and Consultation, 11th July, 1772, Ibid. p. 978, 994.
■£ See the Letter, Minutes, ut supra, p. 974.