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It was on the 24th of October resolved, by a majority of the Council, that the Chap. VI. Chief Justice should be requested to accept of the office of judge of the Sudder Duannee Adaulut; and at the same time proposed, that 60,000 sicca rupees per annum, nearly seven thousand pounds, should be annexed to the office, under the title of salary, and 7,200 sicca rupees, upwards of eight hundred pounds, under the denomination of rent for an office. The assent of the Chief Justice, and his appointment to the office, immediately ensued.
When intelligence of the reconciliation between the governing Council and the Lawyers' opiSupreme Court, effected by the appointment of Sir Elijah Impey, with a large "hiscase?" salary, to the station of Judge of Appeal from the Duannee Adauluts, was brought to the Court of Directors, the case appeared to them of so much importance, as to require the highest legal advice; and it was laid before the Attorney and Solicitor-General, before Mr. Dunning, and their own counsel, Mr. Rous. It is a fact, more full of meaning, perhaps, when applied to the character of the profession, than of the individuals, that an opinion, in the following words—" The appointment of the Chief Justice to the office of Judge of the Sudder Dewannee Adaulut, and giving him a salary for the latter office, besides what he is entitled to as Chief Justice, does not appear to us to be illegal, either as being contrary to the 13 Geo. Ill, or incompatible with his duty as Chief Justice; nor do we see any thing in the late act, 21 Geo. Ill, which affects the question "—was signed by the names, J. Dunning, Jas. Wallace, J. Mansfield. The opinion of Mr. Rous, the counsel of the Company, was different, as had been that of their AdvocateGeneral in India; and Mansfield, a few days afterwards, stated, in a short note to the Directors, that doubts had arisen in his mind, whether the acceptance of a salary, to be held at the pleasure of the Company or their servants, was not forbidden by the spirit of the act, or at any rate the reason of the case. He concluded in these words, " I have not been able to get the better of these doubts, although I have been very desirous of doing it, from the great respect I have for the opinions of those gentlemen with whom I lately concurred, and whose judgment ought to have much more weight and authority than mine."
The question was taken under consideration of the Select Committee of the Reflections House of Commons; who treated it, under the guidance of other feelings and SeiMtCom-" other ideas. In their report, the power conferred upon Sir Elijah Impey in his jjj»"eeofthc new capacity was represented as exorbitant and dangerous; and so much the Commons. more so, that no regular definition of it was any where to be found; no distinct rule of law was any where pointed out; but he was to be guided by his own will; he was to be moderated by no check; he was to be restrained by no appeal;
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Book V. and he was to decide upon the fortunes of all the natives of Bengal. He was provided not only with judicative but legislative powers, being authorized to make rules and regulations, that is, to lay down laws, for governing the civil jurisdiction of the country. And all this power was conferred upon a man, who, in the opinion of Mr. Hastings at least, had been distinguished by no disposition to make a moderate use of his power. The grounds of expediency and policy, on which, ostensibly, the measure was put, were treated as having been already proved to be frivolous and weak, by the arguments of Mr. Francis and Mr. Wheler, to which no answer had ever been made. "The idea," it was affirmed, "of establishing peace upon the ground of adverse claims still unrelaxed, and which nothing even appears to reconcile but the lucrative office given to the Chief Justice, can be maintained but upon suppositions highly dishonourable to the public justice, and to the executive administration of Bengal." One of the most important features of the case was then held up to view: Mr. Hastings, it was remarked, assumed, and he was well acquainted with the circumstances of the case, in the whole course of his reasoning, that in substance and effect the Chief Justice was the whole of the Supreme Court: By selling his independence to the Governor-General and Council, the Chief Justice, therefore, sold the administration of justice, over every class of the inhabitants of Bengal. "By the dependance of one tribunal," says the report, " both are rendered dependant; both are vitiated, so far as a place of great power, influence, and patronage, with near eight thousand pounds a year of emoluments, held at the pleasure of the giver, can be supposed to operate on gratitude, interest, and fear. The power of the Governor-General over the whole royal and municipal justice in Bengal, Bahar, and Orissa, is as absolute and uncontrollable, as both those branches of justice are over the whole kingdom of Bengal."
An observation of the Committee is subjoined, to which the highest degree of importance belongs. It is founded upon the grand, fundamental truth, That nothing is more favourable to the augmentation and corruption of the executive power, than the faculty of doing, through the medium of the courts of law, things which would awaken suspicion or hatred, if done by the executive itself. In the situation in which the dependance of the Chief Justice has placed Mr. Hastings, "he is enabled," say the Committee, "to do things, under the name and appearance of a legal court, which he would not presume to do in his own person. The refractory to his will may appear as victims to the law; and favoured delinquency may not appear, as protected by the hand of power, but cleared by the decision of a competent judge." When a nation is habituated, even as much as our own is habituated, to pay a blind and undistinguishing Chap. VI. respect to the character and acts of judges; the subservience of the courts of law' is an instrument of power, of portentous magnitude. The consequence of the discussion which these transactions underwent, and of An act to rethe sensations which they produced in the nation, was an act of parliament to.fheasuprenTe' regulate anew the Supreme Court of Judicature, and deprive it of the powers ^°tuu^e°fJudl' which had been found destructive: And, upon a change of ministry, an address to the King was voted by the House of Commons, on the 3d of May, 1782, for the recall of Sir Elijah Impey, to answer to the charge of having "accepted an Chief Justice office not agreeable to the true intent and meaning of the act 13 Geo. III." * ru'''
Soon after his appointment to the office of Judge of Sudder Duannee Adaulut, Judicatorial thirteen articles of regulations for the practice of that Court and of the subor- re§ulBtlonS' dinate tribunals were recommended by the Judge, approved by the government, and adopted. With these were incorporated various additions and amendments, which were afterwards published in a revised code, comprising ninety-five articles. The number of provincial Duannee Adauluts was, in April, 1781, increased from six to eighteen, in consequence of the inconvenience experienced from the extent of their jurisdiction. As the establishment of the police magistrates, called foujdars and tannadars, Police ditto. introduced in 1774, followed the example of so many of the contrivances adopted in the government of India; that is, did not answer the end for which it was designed, the judges of Duannee Adaulut were vested with power of apprehending depredators and delinquents, within the bounds of their jurisdiction, but not of trying or punishing them; a power which was still reserved to the Nizamut Adauluts, acting in the name of the Nabob. The Governor-General and Council also reserved a power of authorizing, in cases in which they might deem it expedient, the Zemindars to exercise such part of the police jurisdiction as they had formerly exercised under the Mogul administration. And in order to afford the government some oversight and control over the penal jurisdiction of the * For these important proceedings, the Report of the Committee of the House of Commons, to which the petitions respecting the administration of justice in Bengal were referred; and the First Report of the Select Committee of 1781, with the ample documents contained in their voluminous appendixes, have been laboriously consulted. See also The Speech of Sir Elijah Impey delivered at the bar of the House of Commons on the 4th day of February, 1788, with the documents printed in the Appendix; though this defence refers almost solely to the conduct of the Chief Justice in the trial and execution of Nuncomar. See also Colebrooke's Supplement, p. 14, 23, 128; and the Fifth Report from the Select Committee on India affairs, in 1810, p. 8 and 9.
Hook V. country, a new office was established at the Presidency, under the immediate
'y?7~~' superintendence of the Governor-General. To this office, reports of proceedings, 1781. . • . •
with lists of commitments and convictions, were to be transmitted every month;and an officer, under the Governor-General, with the title of Remembrancer of the Criminal Courts, was appointed for the transaction of its affairs. In November, 1782, in consequence of commands from the Court of Directors, the jurisdiction of the Sudder Duannee Adaulut was resumed by the GovernorGeneral and Council.* A new plan Upon these changes, in the judicial, followed close another change, in the refer collecting . , I he revenue: venue system. In 1773 the plan was adopted of performing the collection of the
CouncUsabo- revenues by means of provincial Councils; but under the declared intention of its ftiardof Rc- ^uig only temporary, and preparatory to another plan; namely, that of a Board venue set up. 0f Revenue at the Presidency, by whom, with local officers, the whole business of realizing the revenue might be performed. Afterwards, when disputes with Mr. Francis, and other opposing members of the Council, arose, Mr. Hastings had maintained, that the expedient of provincial Councils was the most excellent which it was possible for him to devise. On the 20th of February, 1781, however, a very short time after the departure of Mr. Francis, he recurred to the plan which was projected in 1773; and decreed as follows, That a Committee of Revenue should be established at the Presidency, consisting of four covenanted servants of the Company; that the provincial Councils should be abolished, and all the powers with which they were vested transferred to the Committee; that the Committee should transact, with full authority, all the current business of revenue, and lay a monthly report of their proceedings before the Council; that the majority of votes, in the Committee, should determine all those points on which there should be a difference of opinion; that the record, however, of each dissentient opinion was not expected; that, even upon a reference to the Council, the execution of what the majority had determined should not be staid, unless to the majority themselves the suspension appeared to be requisite; and that a commission of two per cent. on all sums paid monthly into the treasury at Calcutta, and one per cent. on all sums paid monthly into the treasuries which remained under charge of the collectors, should be granted as the remuneration, according to certain proportions, of the members and their principal assistants. Against this arrangement it was afterwards urged, That it was an addition to
* Fifth Report of the Select Committee in 1810; Second Report of the Select Committee in those incessant changes, which were attended with great trouble, uncertainty, Chap. VI. and vexation to the people: That it was a wanton innovation, if the praises; ^gj"""^ bestowed by Mr. Hastings on the provincial Councils were deserved: That it divested the Supreme Council of that power over the business of revenue, with which they solely were entrusted by the legislature, to lodge it in the hands of Mr. Hastings; as the members of the Committee were under his appointment, and the Council were deprived of the means of forming an accurate judgement on all disputed points; hearing the reasons of the majority alone, while those of the minority were suppressed. To these objections Mr. Hastings replied, that the inconveniences of change were no argument against any measure, provided the advantages of the measure surpassed them; that he was not bound by his declarations respecting the fitness of the provincial Councils, when the factious disputes which divided them, and the decline of the revenues, proved that they were ill adapted to their purpose; that the business of the revenue was necessarily transferred from the Supreme Council, because the time of the Council was inadequate to its demands; that the Committee of Revenue were not vested with the powers of the Council, in any other sense than the provincial Councils, or any other delegates; but, on the contrary, acted under its immediate control.
It was entrusted to the Committee to form a plan for the future assessment and collection of the revenues. And the following are the expedients of which they made choice: To form an estimate of the abilities of the several districts, from antecedent accounts, without recurring to local inspection and research: To let the revenues, without intermediate agents, to the Zemindars, where the Zemindary was of considerable extent: And, that they might save government the trouble of detail, in those places where the revenues were in the hands of a number of petty renters, to let them all together, upon annual contracts.*
* The official documents are found in the Appendix, Sixth Report of the Select Committee, 1782; and in the papers printed for the House of Commons, on the question of the impeachment. See too the Fifteenth article of Charge against Hastings, and the answer.