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Book V. misery which it has brought, and still obstinately binds, upon the people of En'gland. 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 of 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 these 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 number 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." * That there might be great abundance 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
* Report, ut supra, Letter from Sir Elijah Impey, to Lord Weymouth, 2d March, 1780.
power. And it may with assurance be expected, that judges, who enjoy the Chap. VI. profits of a defective and vitious system of law, will regard as an evil whatever ~£' has any tendency to lessen those profits; that is, any tendency to purify the law of its profitable defects.*
At this stage of the discussions, respecting the administration of justice, a COn- The business siderable alteration in the constitution of the tribunals, in the civil department rfJJnaeoAd««the native law, was brought forward by the Governor-General, and adopted by J?" "S"?^ the Council. According to the regulations of 1773, this department was the Provincial
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 afford them more time for attending to the important business of the revenue.
About the same time, an expedient, of which the foregoing alteration was pro- An expedient, bably contrived as a subsidiary portion, suggested itself to the mind of theret^for^Governor-General, for neutralizing the animosities which prevailed between the Sovereign Council and the Supreme Court; and thereby for terminating theirtweenthe
and the Chief Jus tl CO
• 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 hear 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.
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 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.* 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, mem, depen- respecting the Courts of civil law, had produced not the most desirable effects
dnnt upon the 1"
pjeasureof the but a great deal of inconvenience. "The institution," he said, "of the new given to'the Courts of Duannee Adaulut, has already given occasion to very troublesome Chief Justice. and aiming 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 their 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
An office of great power and emolu-* Governor-General's Minute in consultation, 29th September, 1780; See First Report of the Select Committee, 1782, Appendix, No. 3.
attempts at legislation. He therefore proposed, That the constitution of the Chap. VI. 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 GovernorGeneral 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 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
Book V. 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; that, if the authority of the GovernorGeneral 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 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 judged 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.