Book V. 1781. Petitions against these proceedings presented to the British General and A rule was granted by the Supreme Court to show cause why an attachment should not issue against the Company's attorney and the officers who were immediately instrumental in seizing the Sheriff's officers and their attendants at Cossijurah. The officers were instructed, by the Governor-General and Council, to resist the execution of any writ, which had a reference to acts done in obedience to their orders in seizing the persons in question. But the attorney was committed to the common gaol of Calcutta for contempt, and a criminal prosecution carried on against him. Upon this, even Mr. Rous remarks,* " I am sorry to observe, that the judges, at this period, seemed to have lost all temper, particularly in the severe and unexampled manner of confining Mr. Nayler, attorney to the Company, who merely procured information from the office of the number of men employed by the Sheriff, and once gave directions to the vakeel of the Zemindar to withhold his warrant of attorney;—both, acts done in obedience to the Governor-General and Council." The Governor-General and Council themselves were at last individually served with a summons from the Supreme Court of Judicature, to answer to Cossinaut Baboo, in a plea of trespass; but finding that the suit was brought against them for acts done in their collective capacity, as the governing organ of the country, they delivered, by the Company's counsel, a declaration, that they would submit to no proceeding of the Court, in any prosecution against them as individuals, for acts done by them as Governor-General and Council; acts to which the jurisdiction of the Court did not extend. These proceedings were not brought to this stage, before the middle of March, 1780; and in the mean time a petition to parliament had been prepared and The House of signed, by the principal British inhabitants in Bengal, against the exercise which Commons by the Supreme Court of Judicature made of their power; and this, together with a peinhabitants in tition from the Governor-General, and members of the Supreme Council, and also a Bengal, by the Governor- petition from the Company itself, was presented in 1780, and referred to the Select Committee, which afterwards reported at such length on Indian affairs. In by the Com- defence of the Supreme Court, the only matter which appears, with the exception of the speeches of the Judges in Court, which refer only to the grounds of their proceedings in special cases, is contained in three letters of the Chief Justice, addressed to Lord Viscount Weymouth, Secretary of State; one dated the 26th of March, 1779, and the other two dated the 2d and 12th of March, Unsoundness 1780. In vindication of the attempt to force the jurisdiction of the Court upon pany. Referred to the Select Committee. of the defence held up for the Judges. * Report of Mr. Rous, ut supra. 1781. the Zemindars, it is affirmed that although, as Zemindars, they are not subject CHAP. VI. to that jurisdiction, yet, as renters and collectors of the revenue, they are included in the description of servants of the Company. And it cannot be denied that the vague and inaccurate phraseology of the act, a species of phraseology which forms so remarkable a characteristic of the language of English law and is the source of so many evils, did leave open a door to the dispute, and to all the mischief which it produced, and which it threatened to produce; though it is clear as day, from the general import of the act, that no such jurisdiction was intended to be given. To the allegation of the mischievous consequences which would ensue, and which were proved to be so extensive and alarming, the Chief Justice offers no reply. If there is a verbal, or technical reason, to justify the exercise of his power, the consequences, in regard to the happiness or misery of others, are what, from his habits, must to an English Judge appear, in general, as in the present case, very much a matter of indifference. To the accusation of interfering with the administration of criminal justice in the native courts, over which the Supreme Court had undeniably no control, the only defence which is offered by the Chief Justice is, that in those tribunals justice was administered very ill. It is, however, abundantly certain, that totally to destroy those tribunals, by prosecuting the Judges in the Supreme Court, when, having destroyed them, it was impossible for that Court to substitute any thing in their room, was not the way to improve the administration of justice. If those native Courts were susceptible of reform, as most assuredly they were, though, considering the state of society and the former experience of the people, there was at this particular period some ground for praise as well as for blame, it would have been a fit and noble exercise for the mind of the Chief Justice and his brethren, to have formed an excellent plan for the administration of justice among the natives, and to have recommended it with all the weight of their authority to parliament and the Company. to this des perate seizure cannot be The motive, in this case, which guided to so desperate a line of conduct, The motives cannot be mistaken, and ought not with hypocrisy to be disguised. It was not any conception of good; it was not ignorance of the evil; for it was too obvious of jurisdiction to be misunderstood. It was the demand of power, and the demand mistaken. of profit: The power sufficiently visible and extraordinary; the profit more concealed: Nor can the pleasure of exercising unbounded sway, through the forms of administering law, be justly regarded as a feeble inducement. We see what, in this instance, it was capable of producing: And a faithful history of the law of England would exhibit no less wonderful proofs, in the 1781. BOOK V. misery which it has brought, and still obstinately binds, upon the people of England. 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. 1781. 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.* of the Duannee Adau from that of Councils. 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 of the native law, was brought forward by the Governor-General, and adopted by lut separated 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. which is suc 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 the cessful for exGovernor-General, for neutralizing the animosities which prevailed between the tinguishing Sovereign Council and the Supreme Court; and thereby for terminating their tween the * 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 be government and the Chief Justice. 1781. BOOK V. 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. An office of and emolu given to the Chief Justice. In consultation on the 22d of September, 1780, the Governor-General introduced great power a minute, in which he stated that the arrangement established a few months before, ment, depen- respecting the Courts of civil law, had produced not the most desirable effects dant upon the pleasure of the but a great deal of inconvenience. "The institution," he said, "of the new Council, is Courts of Duannee Adaulut, has already given occasion to very troublesome and alarming 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 * Governor-General's Minute in consultation, 29th September, 1780; See First Report of the Select Committee, 1782, Appendix, No. 3. |