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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

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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.

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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.

nions upon

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 this case. 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. III, or incompatible with his duty as Chief Justice; nor do we see any thing in the late act, 21 Geo. III, 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."

Select Com

House of

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 upon it of the other ideas. In their report, the power conferred upon Sir Elijah Impey in his mittee of the 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."

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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 1781. is an instrument of power, of portentous magnitude.

Court of Judicature.

recalled.

The consequence of the discussion which these transactions underwent, and of An act to regulate anew the sensations which they produced in the nation, was an act of parliament to the Supreme regulate anew the Supreme Court of Judicature, and deprive it of the powers 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." * Soon after his appointment to the office of Judge of Sudder Duannee Adaulut, Judicatorial regulations. thirteen articles of regulations for the practice of that Court and of the subordinate 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.