1781.

Book V. the army, to make that very night an attack upon the camp of Scindia. After some debate and hesitation, the resolution was adopted. At sun-set 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.

A peace is concluded

with Scindia.

· Colonel Muir was so retarded, by want of cattle for the conveyance of provisions, and by other difficulties,* that he arrived not at Antry till the 4th of April; and, as senior officer, upon joining Carnac, he assumed the command. In order to overcome the backwardness of the Rana of Gohud, whom the apparent feebleness of the English led to temporise, 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.† 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 Jumma 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,

"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.

that Scindia should use his endeavours to effect a peace between the English and Chap. VI. their enemies, Hyder Ali, and the Peshwa.*

1781.

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 Supreme Court of JuIndia, and by its grand legislative effort, in 1773, undertook to provide, as far as dicature, and its powers. 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 or indirectly in the service of the Company, or of any British subject, at the time of the offence.

misconduct

fees taken

In the establishment of this tribunal, the British legislature performed one Temptation to important act of legislative wisdom. They recognized, and by adopting they from pocketing sanctioned, the principle, that to leave any part of the emoluments of judges, as away from the so great a portion of them in England is left, to be made out of fees extracted judges. 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,

* 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.

1781.

The Legislature saw not the consequences of creating two

BOOK V. 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.* 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 independent 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 extinction. †

powers.

Operations of the Supreme

Court, cruel

to the inhabitants.

The judges had not been long in the exercise of 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; they 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. 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

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 p. 100 supra.

1781.

consternation and alarm. They saw themselves surrounded with dangers of a CHAP. VI. 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 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, 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 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 determined 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

BOOK V. 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.*

1781.

Interfere with,

and threaten

collection of

the revenue.

Suspend the

administration of justice among the natives;

Not only the alarm which these proceedings diffused throughout the country, to suspend the 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; his forcible removal; or the ignominious seizure of his person, went far to suspend the collections within his district, and 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 that 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 pay

1. In civil

cases.

* See the evidence of Mr. Ewan Law, Report of the Committee on Touchet's Petition, &c.