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ment is universal and unremitting in India, and never fails to lay hold of every CHAP. VI. occasion which affords any chance either of 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.

cases.

While the Company exercised the office of Duan, in other words, that depart- 2. In penal ment 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 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 Annihilate all the powers of which were exercised in the name of the Nabob, were taken away and abolished. government. By another set of pretensions, the same destruction was performed upon 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

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BOOK V. 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 Dewan 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."

Effects por

tended by the conduct of

these judges in grasping at jurisdiction.

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,* 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 mischief may be small, or the

* The following is a beautiful 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.

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advantage great. But when the wheels of government were threatened to be CHAP. VI. 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 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 stopped 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 possible of the business of the country exempt from the exercise of their power.

themselves in

To palliate the invasions which they made upon the field of government, they Apologies for made use of this as an argument; that the great end of their institution was to valid. 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 The Directors Council transmitted to England, induced the Court of Directors, in the month of the case belay a statement

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BOOK V. 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 irresolu tion 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.

upon

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 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 gaol 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 was 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 process of the ordinary Revenue Courts was opposed; persons whom they had confined being

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released by the Supreme Court; suits which were cognizable in none but the CHAP. VI. 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, the operation of the Dewanee Courts was, in some instances, 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 Adaullut, were discouraged from the exercise of this important jurisdiction, under the apprehension that their powers might be disputed, and their decrees annulled.*

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 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

* See p. 316, 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 Council 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.