LECTURE I.

EARLY HISTORY: THE GRANT OF THE DEWANNY.

Introduction-Commencement of established institutions-Character of antecedent history-First introduction of Europeans into India-Early history of the East India Company-Territorial acquisitions-Fall of the Mogul EmpireAggressive policy of the Company-Settlement in Bengal-Position of the English before their Conquest-Legislative Authority of the Company during that period-Charter of Elizabeth—Of James I–Of Charles II-Of William III-Charters of 1726 and 1753-Judicial Authority of the Company during that period-Necessity for obtaining it-Early Charters-Mayor's CourtsJurisdiction of the Governor and Council-Mayor's Courts and Courts of Requests-Subjugation of Bengal-Civil Disorders and Anarchy-Elements of Civil Order-Relations of the Mogul, the Nabob, the Crown and the Company-First Attempt to re-organize Society-Absence of Legitimate Authority-No Judicial Coercion over Europeans-Reforms of Lord CliveNecessity for Grant of Definite Authority.

tion.

I SHALL endeavour to present in this course of Introduclectures a general view of the legislative power and judicial authority now and heretofore exercised in British India. And in doing so it is unnecessary to refer with the accustomed detail to the various enactments passed during the rule of the Company in reference to this subject. The earlier legislation is treated at length in Harington's Analysis which was published in 1805; and a long string of Acts and Regulations is to be found in Auber's Analysis,

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LECTURE Morley's Digest, and other works. But my object in this volume is to separate the existing legislative and judicial institutions from the previous history of those institutions; reducing the latter as much as possible to a continuous narrative. The subject is preliminary to the study of the laws in force in British India, and deals with the character and powers of the councils and tribunals which respectively make and administer those laws. In any question of difficulty as to the source and early boundaries of power in reference to any institution, the particular enactments relating to it must always be consulted. far as regards the legislation of the past, its general character and historical bearing will here alone be explained, that which regulates existing institutions will be treated in greater detail.

So

The suppression of the Indian Mutinies and the assumption of the government in name as well as in reality by the English Crown led to a consolidation and re-establishment of the Indian empire ; and the year 1861, in which the Indian Councils' Act and the Indian High Courts' Act were passed, marks the close of a tedious and intricate period of Indian constitutional history. Those enactments and the subsequent legislation which has been effected here, especially in the last two years under the government of Lord Mayo, are the foundation of nearly the whole judicial and legislative authorities now existing in India. I may

I.

therefore say at the outset that at that date I shall LECTURE divide the historical sketch of the earlier institutions from the account of the existing constitution of the Courts and Legislative authorities here established. The time has come when most of the legislation on these subjects even down to the very recent period which I have mentioned, is no longer of detailed interest requiring constant reference. It has passed into the region of history as completely as the victories of Clive and the policy of Hastings, and in order to be of the slightest interest, must be studied in reference to the political circumstances which influenced it and the conflicting interests and passions which lay behind it.

Constitutional history in this country has nothing to do with the steady spontaneous growth of national institutions. It is a record of experiments made by foreign rulers to govern alien races in a strange land, to adapt European institutions to Oriental habits of life, and to make definite laws supreme amongst peoples who had always associated government with arbitrary and uncontrolled authority. There is considerable vacillation of purpose exhibited in those experiments, influenced as they were by conflicts of opinion and the rivalry of interests, but on the whole there was a steady advance towards securing impartial justice and legislation.

ment of

The year 1781 marks the most important era in Commencethe history now under consideration. It terminated established

institutions.

LECTURE

I.

a period of fierce animosity and struggle between
those who wished to see English law and Courts
of Justice introduced at once into the country
and rendered supreme over the executive; and those
who considered that such a policy was wholly im-
practicable, and that, circumstanced as the English
then were, government must for a long time to come
control the authority of the Courts. It commenced
the era of independent Indian legislation; of the
authority of the Supreme Court, as it continued more
or less to be exercised for eighty years; of the estab-
lishment of a Board of Revenue "entrusted with the
charge and administration of all the public revenues
of the provinces; and invested in the fullest manner,
with all powers and authority, under the control
of the Governor General and Council;"* of the recog-
nition by Act of Parliament of the established Sudder
and provincial Courts; and of the recognition by Act
of Parliament and in the Revised Code of Bengal of
the right of Hindus and Mahomedans to be governed
by their own laws and usages. The plan of govern-
ment, both as regards legislation and the Courts of
Justice, in that year assumed a definite shape, and
although many changes of course ensued in the long
period (1781-1861), which separated the administra-
tion of Warren Hastings, the first Governor-General
of India, from the close of that of Lord Canning, its
first Viceroy, still they were changes of detail, often
* 2 Harington's Analysis, p. 35.

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of great importance, but leaving unaltered the LECTURE general character of the system then introduced.

Confining ourselves therefore in the first place to the exclusively historical portion of the subject, I shall take the year 1781 as the dividing point of time at which the character of that history essentially changes, at which the boundaries of authority have at last become strongly defined.

of antece

history.

Previous to that date the general character of In- Character dian history, or of the history of the government by dent the English of their Indian possessions, is one of military struggle and civil tumult interspersed with occasional efforts to organize society. A vivid description of it is given by Lord Macaulay in his celebrated Essays on Lord Clive and Warren Hastings. The chief centres of interest are the individual efforts and achievements of the two powerful chiefs who laid the foundation of the British empire in India, and to whom the natives of India owe a juster government, greater security, greater wealth, and means of social happiness and order, than they ever experienced before or would ever have been likely to obtain had Clive and Hastings never lived.

Previous to that date, moreover, as it seems to me, the history of Courts and legislatures is mingled with the history of the executive, and they must be pursued together. For notwithstanding the desperate attempt in 1773, by means of the Supreme Court then established, to introduce law