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1769.

Book V. affirmed; That this atrocious condemnation and execution were upon an ex past 'facto law, as the statute which created the Supreme Court and its powers was not published till 1774, and the date of the supposed forgery was in 1770: That the law which rendered forgery capital did not extend to India, as no English statute included the colonies, unless where it was expressly stated in the law: That Nuncomar, as a native Indian, for a crime committed against another Indian, not an Englishman, or even a European, was amenable to the native, not the English tribunals: That the evidence adduced was not sufficient to warrant condemnation: And whereas the state in which the prisoner was placed, with regard to a man of so much power as the Governor-General, should have suggested to the Judge peculiar circumspection and tenderness, that there was every appearance of precipitation; and of a predetermination to find him guilty, and to cut him off. In the defence which was set up by Sir Elijah Impey, the Chief Judge, in his answer at the bar of the House of Commons on the 12th of December, 1787, he admitted that a native inhabitant of the provinces at large was not amenable to the English laws, or to the English tribunals: and it was not as such, he affirmed, that Nuncomar was tried. But he maintained that a native inhabitant of the English town of Calcutta, which was English property, which had long been governed by Englishmen, and English laws, was amenable to the English tribunals, and justly, because he made it his voluntary choice to live under their protection; and that it was in this capacity, namely, that of an inhabitant of Calcutta, that Nuncomar suffered the penalties of the English laws. If the competency of the jurisdiction was admitted, the question of evidence, where evidence was complicated and contradictory, could not admit of any very clear and certain decision; and the Judge opposed the affirmation of its insufficiency by that of the contrary. He denied the doctrine that an English penal statute extended to the colonies, only when it was expressly stated. The allegation of precipitation and unfairness, still further of corruption, in the treatment of the accused, he not only denied with strong expressions of abhorrence, but by a specification of circumstances endeavoured to disprove. It was, however, affirmed that Nuncomar was not an inhabitant of Calcutta at the time when the offence was said to have been committed; but a prisoner brought and detained there by constraint. The Chief Justice, on the other hand, maintained that not only was no evidence to this fact exhibited on the trial, but evidence to the contrary, and that not opposed. It does indeed appear that an omission, contrary to the intent of the framers, in the Charter of Justice granted the Company in 1753, had afforded a pretext for that exten sion of jurisdiction over the inhabitants of Calcutta, under which Impey shel- Chap. tered himself. In establishing the civil court for the administration of the English laws, this charter expressly excepted "such suits as shall be between Indian natives, which shall be determined among themselves, unless both parties consent." In establishing the penal court, the reservation of the natives, having once been expressed, was not repeated; and of this opening the servants of the Company had availed themselves, whenever they chose, to extend over the natives the penalties of English law. That the intention of the charter was contrary appeared by its sanctioning a separate court, called the Phousdary, for the trial of all offences of the native inhabitants; a court which, under the intention of rendering natives as well as English amenable to the English criminal laws, would have been totally without a purpose.* Of the evidence it may fairly be observed, that though the forgery was completely proved by the oaths of the witnesses to the prosecution, it was as completely disproved by the oaths of the witnesses to the defence ; that there was no such difference in the character of the parties or their witnesses as to throw the balance greatly to either of the sides; and that the preponderance, if any, was too weak, to support an act of so much importance and delicacy, as the condemnation of Nuncomar. Even after the judgment, the case was not without a remedy; the execution might have been staid till the pleasure of the King was known, and a pardon might have been obtained. This too the Court absolutely refused; and proceeded with unrelenting determination to the execution of Nuncomar; who, on the 5th of August, with a tranquillity and firmness that never were surpassed, submitted to his fate, not only amid the tears and lamentations, but the cries and shrieks of an innumerable assemblage of his countrymen.

There was, perhaps, enough to save the authors of this transaction, on the rigid interpretation of naked law. But that all regard to decorum, to the character of the English government, to substantial justice, to the prevention of misrule, and the detection of ministerial crimes, was sacrificed to personal interests and personal passions, the impartial inquirer cannot hesitate to pronounce.! • •

* Accordingly this jurisdiction had hitherto been exercised with great timidity; and the consent of the government was always asked before the sentence was executed. In one case, and but one, there had been a conviction for forgery, but the prisoner was not executed—he received a pardon. See the Seventh Report of the Committee of Secrecy, in 1773, p. 17.

f For the preceding charges against Mr. Hastings, and the proceedings of the Council, see the Eleventh Report of the Select Committee, in 1781, with its Appendix; Burke's Charges Book V. Among the regulations of the financial system, formed and adopted in 1776 '^772, under the authority of Mr. Hastings, the seventeenth article was exThe law gross-pressed in the following words; "That no Peshcar, Banyan, or other servant ^vou^oni". of whatever denomination, of the collector, or relation or dependant of any such BanyanSS servant, be allowed to farm lands, nor directly or indirectly to hold a concern in any farm, nor to be security for any farmer; and if it shall appear, that the collector shall have countenanced, approved, or connived at a breach of this regulation, he shall stand ipso facto dismissed from his collectorship." These regulations had the advantage of being accompanied with a running commentary, in a corresponding column of the very page which contained the text of the law; the commentary proceeding from the same authority as the law, and exhibiting the reasons on which it was founded. The commentary on the article in question, stated, that, "If the collector or any persons who partake of his authority, are permitted to be farmers of the country, no other persons will dare to be their competitors. Of course they will obtain the farms on their own terms. It is not fit that the servants of the Company should be dealers with their masters. The collectors are checks on the farmers. If they themselves turn farmers, what checks can be found for them? What security will the Company have for their property? Or where are the ryots to look for protection?"* Notwithstanding this law, it appeared that Mr. Hastings's own Banyan had, in the year 1773, possessed, or was concerned in the farm of no less than nineteen pergunnahs, or districts, in different parts of Bengal, the united rent-roll of which was 13,33,664 rupees; that in 1774, the rent-roll of the territory so farmed was 13,46,152 rupees; in 1775, 13,67,796 rupees; that for 1776, it was fixed at 13,88,346 rupees; and for 1777, the last year of the existing or quinquennial settlement, it was fixed it 14,11,885. It also appeared that, at the end of the second year, he was allowed to relinquish three of the farms, on which there was an increasing rent. This proceeding was severely condemned by the Directors; and Mr. Hastings himself, beyond affirming that

against Hastings, No. 8, and Hastings's Answer to the Eighth Charge, with the Minutes of Evidence on the Trial, p. 953—1001; and the Charges against Sir Elijah Impey, exhibited to the House of Commons by Sir Gilbert Elliot, in 1787, with the Speech of Impey, in reply to the first charge, printed, with an Appendix, by Stockdale, in 1788. For the execution and behaviour of Nuncomar, see a very interesting account, written by the sheriff who superintended, and printed in Dodsley's Annual Register for 1788, Historical part, p. 177. . •

• * Sixth Report of the Committee of Secrecy, in 1773; Bengal Consultations, 14th May, 1772, p. 18. . < he had no share in the profits, and that little or none were made, alleged but Chap. II. little in its defence.*

1776.

For the affairs of the Nabob, and the business of government, still transacted Mahomed

R&zfl Khftn in his name, a substitute to Munny Begum, and to the plan superseded by her restored to his removal, was urgently required. In their letter of the 3d of March, 1775, the tf°TM^itu** Directors had declared Mahomed Reza Khan so honourably cleared of the sus- power, picions and charges with which he had been clouded, and Nuncomar so disgraced by his unworthy attempts to destroy him, that they directed his son, who was no more than the tool of the father, to be removed from his office; and Mahomed Reza Khan to be appointed in his stead. It is remarkable, that the Directors were so ignorant of the government of India, which it belonged to them to conduct, that the name of the office of Gourdass, who was the agent for paying the Nabob's servants, and the substitute for Munny Begum, when any of the affairs was to be transacted to which the fiction of the Nabob's authority was still applied, they mistook for that of the officer who was no more than the head of the native clerks in the office of revenue at Calcutta. When they directed Gourdass to be replaced by Mahomed Reza, they distinguished him by the title of Roy Royan; and thence enlarged the ground of cavil and dispute between the contending parties in the Council. Clavering, Francis, and Monson, decided for uniting in the hands of Mahomed Reza Khan the functions which had been divided between Munny Begum and Rajah Gourdass; and as Rajah Gourdass, notwithstanding the prejudices against his father, was recommended by the Directors to some inferior office, the same party proposed to make him Roy Royan, and to remove Rajah Bullub, the son of Dooloob Ram, by whom that office had hitherto been held.

There was another subject of great importance. As the penal department of justice was ill administered in the present Fousdary courts, (that branch of the late arrangements had totally failed); and as the superintendance of criminal justice, entrusted to the Governor-General, as head of the Nizamut Adaulut, or Supreme Penal Court of Calcutta, loaded him with a weight of business, and of responsibility, from which he sought to be relieved, the majority agreed to restore to Mahomed Reza Khan, the superintendence of penal justice, and of the native penal courts throughout the country; and for that purpose to remove the seat of the Nizamut Adaulut from Calcutta back to

* Extract of Bengal Revenue Consultations, 17th March, 1775; Parliamentary Papers, printed in 1787; see also the Fifteenth of the Charges exhibited to Parliament against Warren Hastings, Esq. and his Answer to the same.

Book V. Moorshedabad. The Governor-General agreed that the orders of the Directors required the removal of Gourdass from the office which he held under Munny Begum, and the appointment to that office of Mahomed Reza Khan; but he dissented from all the other parts of the proposed arrangement; and treated the renewal of the title of Naib Subah, and the affectation of still recognizing the Nabob's government, as idle grimace. "All the arts of policy cannot," he said, "conceal the power by which these provinces are ruled, nor can all the arts of sophistry avail to transfer the responsibility to the Nabob; when it is as visible as the light of the sun, that every act originates from our own government, that the Nabob is a mere pageant without the shadow of authority, and even his most consequential agents receive their express nomination from the servants of the Company." * The opposing party, however, thought it would be still political, to uphold the pretext of " a country government," for managing all discussions with foreign factories. And if ultimately it should, they say, "be necessary to maintain the authority of the country government by force, the Nabob will call upon us for that assistance, which we are bound by treaty to afford him, and which may be effectually employed in his name." That party possessed the majority of votes, and their schemes, of course, were carried into execution, f

* How strange a language this from the pen of the man, who, but a few months before, had represented the power of the shadow of this shadow, the Naib Subah, as too great to exist with safety to the Company in the hands of any man.

f Fifth Report of the Select Committee in 1781; and the Bengal Consultations in the Appendix, No. 6.

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