REVIEW 
 
 OF T HE 
 
 PRINCIPLES AND CONDUCT 
 
 OF THE 
 
 JUDGES of his Majefty's Supreme Court 
 of Judicature in Bengal, 
 
 t7*5 ti
 
 A 
 
 REVIEW 
 
 OF THE 
 
 PRINCIPLES AND CONDUCT 
 
 O F T H E 
 
 ^JUDGES ofHisMajeftys Supreme Court; 
 of Judicature in Bengal : 
 
 o R, 
 
 AN ENQ^UIRY 
 
 INTO THE 
 
 Causes that have ob{lru<3:ed or defeated the falutary 
 
 Ends propofed by the Legiflature in eftablifhing 
 
 this Court. 
 
 The beft of human Inflitutions anfwer their end in part only, an^ 
 from the firft, and whilft the imprefllon of the force that fet them a 
 going, lafts; snd never fail to flacken afterwards, or to take new im- 
 prefTions from contingent events, by which they degenerate, and infenfi. 
 bly become New Institutions under old Names. Bolingbk. 
 
 Printed in the year MDCCLXXXII.
 
 o 
 
 T3a 
 
 PREFACE. 
 
 AN Y attempt ,to throw new light upon a 
 Subje6l that has been fo much canvafTed, 
 as the Adminiftration of Judice in Bengal, 
 will probably be ridiculed as the effort of va- 
 co nity and prefumption. That the Natives of 
 ^ India fhould be upheld and proteded " in the 
 ^ " enjoyment of their antient laws, ufages, 
 g *' rights, and privileges*," is a pofition fo con- 
 ■^ fonant to humanity and found policy, that, late 
 as it has been received into our Statute-book, 
 it ought always to have regulated our counfels. 
 I have not indulged a gaudy difplay of argu- 
 §^ ment, in order to eftablifh this pofition, which, 
 _, in my opinion, the Ihorteft Chapter in Montef- 
 '" quieu would be long enough to prove. It is 
 o the application of a Principle clear in itfelf, but 
 difficult to be accommodated to our fituation 
 in Bengal, where the mixt body of Briiifh Sub- 
 je6ts and Natives form the joint objed: of Le-» 
 giQation, that is alone to be confidered. 
 
 The generous hope of proteding the Na- 
 tives, by fending them our laws, and of tranf- 
 
 * Vide Preamble to the temporary h^ paffed laft year, 
 21 Geo. Ill, c. 70. 
 
 a fufing 
 
 cBQ5
 
 VI 
 
 PREFACE. 
 
 fjfing into their breafts a manly confidence in 
 an equal difpenfation of Juftice, has certainly 
 not anfwered in the event ; and while we fondly 
 imagined we had given them to drink " of 
 " the pure fountain of Britifh Liberty," the 
 draught has been poifoned by the hands that 
 adminiftered it. 
 
 Seven years have elapfed fince our Lawyers 
 and our Laws were tranfported to Bengal. At 
 the expiration of this term, the bufinefs of Le- 
 giflation is now to be begun afrelh. We have 
 heard from the Throne at folemn recommenda- 
 tion 'to Parliament*, to confider the Jiate and 
 condition of the Britifio pojfejjions in the Eaji Indies^ 
 'and hy what means the happinefs of the native In- 
 habitants may be beft promoted. 
 
 In fo important a fubje^l, the lowed i^nder- 
 ilandihg may furniQi valuable hints. In fo ex- 
 tenfive a work, the meaneft labourer may be of 
 ufe. To confider by what means the happi- 
 nefs of the Natives may be beft promoted, it 
 is firft neceffary to point out by what means it 
 has been chiefly obftrucled. This, as far as re- 
 fpefls the Adminiftration of Juftice in Bengal, 
 is the objeft of the prefent Inquiry, which is 
 
 * His Majeily's Speech at the commencement of the 
 prefent Seffion. 
 
 5 humbly
 
 PREFACE. vii 
 
 humbly offered to the attention of thofe who 
 are able, by their flation and talents, to apply 
 a remedy to the mifchiefs that have been ex- 
 perienced. ' 
 
 The Fafts that are here brought forward, are 
 neither fufceptibleof ornament nor exaggeration. 
 In ftating them I have paid no attention to the 
 profound conje(5tures of thofe candid perfons, 
 who fuppofe the Complaints that have been fent 
 from India are only the offspring of Clamour, 
 or the machinations of Britifh Subjefls abroad, 
 defirous of (baking off the reftraints of law. 
 This compendious Anfwer, to fa6ls that cannot 
 be denied, and to inferences from fads that 
 cannot be refifted, may be flattering to the pre- 
 judices of fome, and afford a ready and prompt 
 cxcufe for the lazinefs of others, in declining 
 the examination of an intricate fubjefl, where 
 there is nothing to gratify vanity, intereft, or 
 ambition. — As I would not, however, un- 
 ^dvifedly offend againft any man's prejudices*, 
 
 which 
 
 - * I am not fond of accullng the />reJu,-/Jces of others, as 
 I queftion whether a prejudiced perfon was ever cured by 
 being told that he was fo; and at beft it is an ob- 
 lique mode of begging the queftion. According to all 
 parties. Prejudice has had fo much to do, and Reafon fo 
 
 a 2 little.
 
 Vlll 
 
 PREFACE. 
 
 •which it might be in my power to remove, 
 I have generally taken the authority of 
 the Judges for the fads themfelves, where- 
 ever they ate not contradifted by flronger 
 proofs. The Declarations and Letters of the 
 Chief Juftice, and the other Judges, that appear 
 printed in the Report of the Scle6t Commit- 
 tee of laft year, have not been hitherto fuffi- 
 ciently noticed. I cpnfider the comparifon of 
 thofe Letters, at different periods, as affording 
 the mofl decifive interpretation of their Con- 
 duct. If the refult is not favourable to their 
 Caufe, they mull abide by the maxim of law — ■ 
 Verba accipiuntur fortius contra -prcferentes. 
 
 little, in this whole fubjeft, that I am heartily tired of the 
 word. The Britifh Subjefts fay, it \vs.% prejudice againll them 
 that firft fent cut a Court of Judicature, with inquifitorial 
 Powers, to Bengal. The Judges fay, that /r^/W/c^ againrt 
 the Lawyers has given birth to the complaints of their 
 having extended the Jurifdidlion of the Court oyer the Na- 
 tives, and has made them fo unpopular both in India and 
 Europe :— and the Britiih Subjefts reply, that nothing but 
 prejudice can make this defence of the violent and inju- 
 dicious conduft of the Judges be received in England. It 
 is well known, the /ri?/«<^/f^j of the natives have prevented 
 our laws from being favourably received among them ; and 
 i t is probable that the prejudices of our Lawyers, to the 
 forms of their profeffion, have in their turn increafed the 
 Prejudices of the Natives. Thus we fee Prejudices 
 dancino- in a circle, and reciprocally difplayed as caufe and 
 effeaof each other, to the end of the Chapter. 
 
 The
 
 PREFACE. ix 
 
 The reprelentations of the Governor and 
 Council of Bengal (to which I have often occa- 
 fion to refer) are not, I confefs, the moft unex- 
 ceptionable Evidence to affedV the Judges. At 
 one time they were Parties againft the Supreme 
 Court in the ftrongeft fenfe ; infomuch that the 
 Chief Juftice charges them with uling every 
 effort, and employing the mofl: difingenuous 
 arts to undermine the Court by fecret influ- 
 ence, and oppofe it by open hoftility*. But 
 as the Chief Juftice himfelf foon afterwards 
 accepted a Poft under the Governor and Coun- 
 cil, revocable at their pleafure, and immedi- 
 ately under their controul, this objedlion ap- 
 pears to me to be done away. They are no 
 longer to be confidered as oppofing parties ; 
 they are reftored to their* competency as wit- 
 neffes ; and the Chief Juftice cannot except to 
 the Evidence of thofe in whofe hands (notwith- 
 llanding his former infinuations) he has chofen 
 to confide his fortune and honour. 
 
 If this be a hard rule of evidence, its effedl 
 can only be taken off by a fuppofttion, not very 
 honourable to the contending parties, viz. that 
 their reciprocal accufations were only fitted to 
 anfwer temporary purpofesi that they have writ- 
 ten to England, not what they knew to be true, 
 
 * Sir Elijah Impey's Letters to his Majefty's Principal 
 Secretary of State, Dated March 2, 1780. 
 
 but
 
 3C PREFACE. 
 
 but what they wifhed to be believed j and have 
 confidered words " as the counters of wife 
 " men, and the money of fools^" which if the 
 good people of England were willing to take 
 without weighing, they anfwered juft as well. 
 But as this fufpicion would introduce a general 
 fcepticifm upon a fubjeft that requires the 
 fpeedy decifion of the LegiHature, and would 
 equally fufpend our afifent to the reprefentations 
 of both parties, I had rather impute any exag- 
 gerations that may occur to the natural warmth' 
 of argument. This is an indulgence which, 
 while I allow it to others, I ought to claim for 
 myfelf, if I (hall appear to have been betrayed 
 into any improper afperity of language on the 
 conduct of the Profeflbrs of our law at Calcut- 
 ta. — Laudable as it is, in general (fays a po- 
 pular Writer), to keep- one's temper, there are 
 certain occafions when it is even laudable to 
 lofe iti — and I own I cannot contemplate, with 
 calmnefs, the confufion and mifery that has arifen 
 from the introdudlion of our laws into Bengal; 
 and the pervcrfion of a noble Syilem of Jurif- 
 prudence, which in this country is our Security 
 and our Glory 1 ! 
 
 March i8, 1782.
 
 CONTENTS. 
 
 Y^CCASION of ejlabli/hing a Supreme Court 
 of Jui^icititre in Bengal^ page 1—9. Reafon 
 for inciting natives of a certain defcription with' 
 in it) jkrtjdiofion^ p. 10. 'Want of precifton ifi 
 defcrihilrg the ohje^s of this jurifdi^ion, p. 11, 12. 
 ObfervaticiJis on the conftitution cf the Courts and 
 the powers with which it was invejledy p. 12 — 25. 
 Importanet and delicacy 'of the truji repofed in the 
 -JvDGZSi" and difficulty of applying the laws of 
 England -to d Difiant People^ p. 29 — jr. Ap- 
 pointtnent of ii Governor-General and Council, P'32» 
 •Powers (ff the. Court and Council co-ordinate, and 
 no third paw er to mediate in cafe of Collifiony 
 p. ^Ti—^^' Dijfenjrons between the Members ef 
 the Council, p. 37.- The Judges take a part in theft 
 diffenfwns, and confidered very early ^yj poHtical 
 Judges, p. 39. Extenficit of theif power and thl 
 Jfuence pn the fettlement, along with the e'Htenfion 
 of their jurifdi^i ion, p. 43 — 60. Collijion ■with 
 the Provincial Court of Judicature, and Imprifon- 
 ment of the Mahomedan Lawyers^ the Cauzee, and 
 Muftees of the Patna Court, p. 65 — 73. Attempt 
 made to extend the JurifdiSiion over the Zemin- 
 dars of Bengal, in the cafe of the Rajah of Cof- 
 fijurah, p. 75. I^he Governor and Council in terpofe 
 to proteU the Zemindar by a military force, p. 77. 
 
 Violent
 
 CONTENTS. 
 
 Violent proceedings of the Judges in vindication of 
 their authority ; feveral perfons imprifoned for 
 Contempt of the Court -, and denunciations of the 
 like punifmnent held out in terrorem to all Bri- 
 tifh Subje^Sy who fhould be aiding and ajfifling the 
 Governor and Council^ p. 78 — 82. "The Governor 
 and Council tranfmit a petition to Parliament for 
 an A^ of Indemnity for having reftjled the Courts 
 p. 84 — 85. Sudden Compromise between the 
 Governor and the Chief Jufiice ; the latter appoint- 
 ed Judge of the Sudder Adaulut with a falary of 
 8000 1. per AnnuMy p, 86 — 93. Nature of this 
 appointment y and obfervations, p. 93 — ioi,et feq. 
 Jffent or diffent of the other Judges^ p. 118 
 (Notes). Summary obfervations on the Conduct 
 of the Judges^ and of the Chief Jufiice in par- 
 ticular •, and on the tendency and effe5ls of this 
 appointment^ 119. et feq. Conclufion^ recommend^ 
 ing either a new modification of the Supreme Courts 
 or its ahfolute removal. 141, et feq. Doubts as 
 to the operation of the temporary A£t that pcffed 
 lafi year. Happinefs of the natives how befi con- 
 Julted.
 
 REVIEW 
 
 O F T H E 
 
 Principles and Conduct of the 
 Judges of his Majesty's Supreme 
 Court of Judicature in Bengal, 
 &c. 
 
 INTRODUCTION. 
 
 IT fliall be my endeavour, in the following 
 pages, to explain,' in as clear and as intel- 
 ligible a nnanner as I am able, the rfature and 
 foundation of thofe complaints, concerning 
 the extenfion of the laws of England to the na- 
 tives of Bengal, which have for fo long a time 
 refoundcd in the public ear; while it is to be 
 apprehended that few, if any, diftin6b images 
 have been conveyed to the iinderftanding. 
 The indignation of every liberal mind, at the 
 idea of impofing a complicated fyftem of laws 
 upon a people, no lefs ^verfe to our inftitutions, 
 than invincibly attached to their own j con- 
 B curring
 
 ( * ) 
 
 curring with a general difguft at the condud; 
 of a rapacious herd of lawyers, who fought 
 their own aggrandifement in pulling down the 
 ancient ufages of the country, carried the op- 
 ponents of the Court of Judicature to a degree 
 of warnnth on this fubjed, that could hardly 
 be blamed even in its excefs. 
 
 It has been often obferved, that in fonne 
 queftions men's feelings run before their un- 
 derftandings, even where they both terminate 
 in the fame point. The warmth and zeal that 
 prevailed lad year on this fubjedl, may be fup- 
 pofed to be now confiderably abated, either by 
 the natural efFe6t of fatiated curiofity, or by 
 the acceflion of new fubjefts of more prefling 
 importance. I think it may therefore be of 
 fervice to the Public, to give an account of 
 the rife and progrefs of this novel Judicature 
 in Bengal, that the true flate of the difpute 
 may not Aide from memory, and that men, who 
 have been conduded right by their feelings, 
 may not be led wrong in their reafonings. 
 
 It may hereafter be the obje6b of much cuy 
 rious inveftigation j and, in a century or two, 
 when the name of the Supreme Court will be 
 forgotten, when our laws and our lawyers arc 
 extirpated from Bengal, and when the Britifh 
 Power itfelf is fwept away from the face of that 
 
 country.
 
 ( 3 ) 
 
 country, it will probably, I fay, become aa 
 objeft of much curious fpeculation to fome en- 
 quiring philofopher (fome future writer de 
 VEfprit des Loix), toobferve in what manner, 
 and with what fuccefs, a free and enlightened 
 people attempted to communicate their laws 
 to the conquered provinces of the Eaft, and 
 with what feleftion of its general principles, 
 and with what dereliction of its technical rules 
 and municipal conftitution, this attempt was 
 made. The enquiry will be inftruflive. — 
 I wifh it were likely to end in a high admira- 
 tion either of our laws or its profeflbrs — but I 
 believe future times will hardly clafs Sir Elijah 
 Jmpey * with either Solon or Juftinian. 
 
 In the prefent difcufiion, I (hall proceed with 
 an Englifhman's, veneration for the laws of his 
 country, and at the fame time fhall endeavour 
 to preferve a philofophic regard for the rights 
 of mankind, however diftant in place, or dif- 
 fering in colour. 
 
 It is not neceffary, at this time, to recur to 
 thofe periods in which the United Eaft-India 
 Company (a body of Merchants bearing a very 
 trifling proportion, either in number or in 
 wealth, to the Merchants of Great Britain at 
 large) acquired the territorial poflefljons of 
 
 * Chief Juflice of the Supreme Court. 
 
 B 2 three
 
 { 4 ) 
 
 tl^ree of the richeft provinces in the Mogul's 
 Empire, and inftead of mixing in the intrigues, 
 and depending on the precarious friendiliip of 
 the Viceroys (or Nabobs) of the Empire, 
 thought it neceflary to take the cards into their 
 own hands, and to play the game themfelves. 
 Thefe are matters I leave to more voluminous 
 writers. It is fufEcient to fay, that the Com- 
 pany became, in virtue of the treaty of 1705, 
 pofTefled of the territorial revenues and pofTef- 
 fions of Bengal, Bahar, and Oriffa, fubjed 
 however to its antient laws, and fubjeel to thofe 
 common implied compafls by which mankind 
 were firft cemented m fociety j namely, that 
 they fhould purfue the happinefs of their fub- 
 je6ls : — a compad by the way too likely to 
 efcape the memory and attention of Merchants, 
 whofe general obje6b is commerce and not glory, 
 and to whom profit and lofs is the polar ftar by 
 which they are direfled in their courfe. . 
 
 The important truft of governing thefe great 
 and newly-acquired dominions were, ex neceffi- 
 tate, committed to the' Company's Servants 
 who were upon the fpot -, many of whom were 
 rafh and inconfiderate, and fome of them were 
 pi-ofligate and mercenary. In the confufion 
 always attendant upon great changes and re- 
 volutions, no doubt fome enormities were com- 
 mitted i at the fame time it ought to. be al- 
 lowed.
 
 ( s ) 
 
 lowed, that great abilities, and great virtues 
 too, were difplayed by others of the Company's 
 Servants*, who maintained their integrity; abi- 
 lities and virtues which their fituation alone, 
 and the great fcenes in which they afted, feem 
 to have formed or called forth. — Without an 
 education in the fchool of politics, they difco- 
 vered, on many occafions, the greatcft political 
 knowledge. — With few literary advantages, 
 their writings are often highly eloquent 3 and 
 when the torrent of abufe that has been poured 
 upon our countrymen in India has fubfided, the 
 public will remember with gratitude the names 
 of Vanfittart and of many others, who will have 
 thatjuftice done to their memory which was 
 refufed them when living. 
 
 To return to the period I have been fpeak- 
 ing of. — Had an Englifh Court of Judicature 
 (with fuch immenfe powers as the Supreme 
 Court at prefent polTefles) then exifted in India, 
 it might have been of real utility in checking 
 the fpirit of rapacity and intrigue at that unfct- 
 
 • ** Let the Servants of the Company have the merit 
 *' they are entitled to. The Court of Direftors furely 
 ** will not claim to themfelves the merit of thofe advan- 
 " tages, which the Nation and the Company are at pre- 
 *' fent in pofiefuon of. The officers of the Navy and 
 " Army have had great fhare in the execution ; but the 
 ** Company's Servants were the Cabinet Council who 
 " planned every thing; and to them alfo may be afcribed 
 " feme part of the merit of our great acquifiiions." Par- 
 liamentary Debates, A. D. 1772. 
 
 * B 7 tied
 
 ( 6 ) 
 
 tied period between the diflblution of the Na- 
 bob's power and the eftablifhment of the Eng- 
 lifh government; that fort of iwiligbi (as Mr. 
 Burke exprelTively called it), under the fhelter 
 of which bad men were guilty of great abufes : 
 but, like almoft all the legiflative acls of Britain 
 (never ready with its well-planned projedts till 
 the time of employing them is paft), a Court 
 of Judicature was not fent out for this falutary 
 purpofe till feveral years afterwards j when our 
 Government there had affumed a fettled form j 
 when regulations had been framed to prevent 
 a return of the fame abufes, and when the 
 face of the country (like the face of nature 
 after a ftorm is over-blown) became once 
 more quiet, tranquil, and comparatively 
 happy. Long before the Judges arrived, new 
 and important reformations had actually taken 
 efFedti Councils of Revenue were eftabltfhed 
 iii the different provinces j the ableft of the 
 Company's Servants, and men of the faireft 
 charaders in the Settlement, were feledled to 
 prefide jointly in matters of revenue j and each 
 in rotation, affifted by the Cauzees and Muftees 
 (the antient eilablifhed Magiftrates of the 
 country), appointed to difpenfe jufticc to the 
 natives. Mr. Haftings, who was at that time 
 Prefident, and whofe abilities are generally 
 admitted, dr^w up a fet of Regulations for 
 thefe two important departments. The Regu- 
 lations for the Adminiftration of Juftice were 
 3 very
 
 ( 7 ) 
 
 very juftly applauded by Sir E. Impey on his 
 arrival in that countr}^ He has fince changed 
 his opinion : he now only calls them fpedous; 
 and fays, that however excellent they may ap- 
 pear in theory, they have never been ftri6tly 
 adhered to in pradice. 
 
 While thefe Regulations were framing in 
 Bengal, the fubjedt was taken up with great 
 warmth and vigour in Parliament. The men 
 who had been aiflive in the firft fcenes of plun- 
 der and peculation, were returned from India. 
 The fplendor of their equipages, and the pro- 
 fufion of their expences, dazzled and difgufted 
 the old eftablilhed gentry of this country, who 
 had much better blood flowing in their veins 
 than rhefc npjlart Nabcbsy as they were con- 
 temptuoufly ftiled. Nothing was talked of for 
 a whole SefTion of Parliament but (lories of In- 
 dian rapacity. Imaginary Nabobs who never 
 cxifted, and real Nabobs who were ftill living, 
 were faid to have been cruelly murdered for the 
 fake of their wealth ; and Credulity, with open 
 mouth, fwallowed all that exaggeration could 
 amplify, or artifice invent. An immenfe ma- 
 jority of that Houfe of Commons, who after- 
 wards voted, without a blufli, for the raifing 
 a revenue in America, for the fole purpofe of 
 Ihifting their own expences on the Americans, 
 and (on finding themfelves refifted in their ob- 
 jed) proceeded to enforce the demand by lay- 
 a ing
 
 ( 8 ) 
 
 ing wafte the Colonics with fire and fword, and 
 plunging them into all the aggravated horrors 
 of war J that very Houfe of Commons afFed:ed 
 to contemplate, with pious deteflation, the large 
 fortunes obtained in India by their countrymen j 
 by many of them after long and meritorious fer- 
 vices to the Coinpany, and by moft of them 
 after a long refidence in an unwholefome cli- 
 mate, from which one in twenty never returns. 
 
 In faying this, I would not be thought to 
 extenuate the abufes committed in India, and 
 much lefs to excufe one charge of rapacity by 
 another. Thofe abufes certainly did exift in a 
 great degree j and the meafure of fending out 
 a Court of Judicature, to punifli or prevent 
 them in future, was highly proper, if it had 
 been done in a proper temper. 
 
 "To proceed. — A Court of Judicature was 
 to be ere<5led with all poflible fpeed j and four 
 Barrifters of fmall pra6lice (but of great fpirit 
 • and undoubted integrity) were forthwith ex- 
 alted into Judges. Having equipped them- 
 leives with large wigs and venerable robes, 
 and being furnirtied with Viner's Abridgment of 
 the Laws of England, in 11 vols, folio, The 
 Attorney's Pra£fice in the King's Bench and Com- 
 mon Pleas, in 4 vols, oftavo, and John Doe 
 and Richard Roe as fupporters, they fet fail, in 
 the memorable year of our Lord 1774* to 
 
 preach
 
 ( 9 ) 
 
 |3reach the good tidings of Redrefs to the Gen- 
 toos and Mahometans, and to denounce pu- 
 nifhnnent and caftigation on their European op- 
 preflbrs. Such was the objedl of this new mif- 
 /ton, as Sir E. Impey gravely calls it. 
 
 Every power that could be conceived necef- 
 fary to this end, was lavilhed upon the Court 
 and its Judges. — They were armed with the 
 founding title of his Majeiiy's Supreme Court of 
 Judicature* \ they were invefted with Civil Law, 
 Comnnon Law, Ecclefiaftical^ Admiralty, and 
 Criminal Jurifdidlion j they were to try Euro- 
 peans on perfonal aflions, and to affefs damages 
 without a Jury f j they were to punifh them 
 with whipping % and the pillory, if they fhewed 
 a contempt of the Court by difobeying its fub- 
 
 posnas; 
 
 * This was pro niajori dignitate. The Reader is not 
 to infer from the name (as feme have done) that they were 
 a Court of Appeal from the native Courts of Juftice ; they 
 had no legal interference with them. 
 
 f To compafs the laudable objefts of this Inftitution, 
 here was a violent breach made in the Law of England, 
 which declares that no Englilhman fhall fufler in his pro- 
 perty or his perfon without the verdift of twelve men, 
 who are his equals. Is iji per judicium parium, aut per 
 legem terra. 
 
 X In the late heats and diflentions at Calcutta, the 
 
 Chief Juftice fo far forgot himfelf, and that propriety we 
 
 are accuftomed to fee and admire in our Englifh Judges, as 
 
 .to declare from the Bench, " that the claufe in the King's 
 
 C " Letters-
 
 ( 10 ) 
 
 poenasj and laftly, to prevent them from 
 eluding juftice, under colour of employing the 
 natives in the commifllon of their crimes, 
 " EVERY native, directly or indireflly in their 
 " Service, or in that of the Company," was 
 to be made fubje6b to the jurifdidlion of this 
 Court likewife. 
 
 Hinc illse lacrymas- 
 
 'Haec prima mali labes *. 
 
 This 
 
 ** Letters-patent was Inferted at his o'von exprefs defire."— 
 Mr. Mickey's Evidence. — Report of the Seleft Committee 
 of the Houfeof CommonSj page 71. 
 
 Such a declaration from a Judge on the Bench, that he 
 fuggefted a claufe impowering him to ^hip or pillory the 
 inhabitants of a Britifli Settlement, gave the perfons who 
 heard it no very favourable impreflion of that fame Judge's 
 moderation and impartiality, who was appointed to try 
 caufes, and aflefs damages againft them, without the inter- 
 vention of a Jury ! 
 
 " Miferable indeed" (they obferved in ftrong and pointed 
 terms of indignation) " muft be the fituation of Britons, 
 ** to be under the weight of fuch Powers, with fuch an 
 ** interpreter !" — Vide printed Remarks on their Petition 
 lo Parliament. 
 
 ♦ By an unfortunate want of precifion in the Statut«, 
 and in the King's Letters-patent appointing the Supreme 
 Court, the Judges were empowered to hear, not only com- 
 plaints of opprefTion againft natives within the above de- 
 fcription, but ^//fuits whatever ; in confequence of which 
 the Englifh laws, in their full extent, were let in at once 
 upon thefe ignorant natives, and " from this one fource" (as 
 an ingenious Writer has exprefled it) ** have diifufed thera- 
 
 " felves
 
 ( >« ) 
 
 This anxiety to comprehend all natives, who 
 might be made the inflruments of opprefTion by 
 the Englifh Gentlemen, introduced thofe vague 
 and undefined words, — all perfons, dire£lly or 
 indiredly, in thefervice of the faid United Eaji' 
 India Company^ or any of his Majeflfs fubje5is f. 
 Here was the door left open for that latitude 
 of interpretation, which, to the infinite emolu- 
 ment of the attornies, has extended this jurif- 
 diclion over every native whom it has been 
 thought worth while to bring within it. Here 
 was the feminal principle, the " grain of 
 muftard-feed ;):," which, by means of the fof- 
 tering care of the Judges of the Court, and 
 the unceafing dexterity of its Praftifers, has 
 been expanded to its prefent fize ; and by 
 drawing along with it the immenfe body of our 
 
 ** fclves by innumerable channels over the whole country, 
 ** and pervaded every connexion of life, public and prir 
 " vate, domeftic and fecial." Obfervations on the Admi- 
 niftration of Juftice in Bengal, 410. — The confufion that 
 this muft occafion in any country, and much more in Ben- 
 gal, may be eafily conceived ! 
 
 f 13 Geo. III. cap. 6^. § 14. 
 
 X St. Matth. chap. xiii. ver. 30, 31, ** Like unto a 
 ** grain of muftard-feed, which a man took and fowed in 
 ** his field, v/\iichin^ttA is the leafi of all feeds t butwhea 
 *' it is grown it is the greateft among herbs, and becometh 
 *' a tree, fo that the birds of the air come and lodge in the 
 '* branches thereof."-- The Attornies of the Supreme 
 Court are •* the birds of the air" who have Iod|ed in the 
 branches of this new Jurifdiftion. 
 
 C % laws,
 
 ( Jl ) 
 
 lavjs, with all its rules, fiftions, and inappli- 
 cable fornns, has, in efreft, converted the edge 
 of this aew Court of Judicature againji the na^ 
 tives, for whofe benefit and fecurity it was in- 
 tended. — " To work effefts contrary to their 
 " intention (fays an eloquent Writer), is a 
 " fate that too often attends the bed of human: 
 «^ expedients j and the refleclion does no ho- 
 «* nour to our wifdom or our forefight." 
 
 Before I venture further into the detail, the 
 Reader mufl indulge me with a few obferva- 
 tions on the Structure and Conftitution of this 
 Court of Judicature. Out of the many that 
 crowd upon my mind, the following feem to me 
 of importance, 
 
 I. I Ihall obferve that the Supreme Court 
 was. invelted with a /w<?/<?/i jurifdi6tion j one 
 local, that is, confined within the limits of the 
 Britiih faftory j the other perfonal, or extend- 
 ing to perfons falling under a certain character 
 or defcription. This idea of giving the fame 
 Court, and the fame Judges, a double jurif- 
 diftion, was declared by a great and truly re- 
 fpeftable man *, at the head of the Houfe of 
 Peers, to be a novel experiment ; and I hope 
 to God we ihall fee no more fuch experiments 1 
 
 • Lord Thwlow. 
 
 The
 
 ( 13 > 
 
 : The Reader will eafily perceive the differ- 
 ence between the two forts of jurifdidion *, 
 
 ■ * The city of London, the Counties Palatine of Lan- 
 cafter, Sec. Sec are inftances of a /cr^/ jurifdidlion. The 
 t^ourt of Exchequer, on the other hand, exerciresa/f/yoM^/ju, 
 rifdiflion, that is, over the King's debtors and accountants n 
 and its jurifdidlion accordingly foon became univerfal : for 
 the Court allows a fuitor to bring an action againft any 
 perfon whatever, and on fuggelling that he (the plain tiiF) 
 is a debtor of the King's, and that unlefs the party com-* 
 plained of be inade to pay hjs demand, he ihall- be lefs 
 able to fatisfy the King's debt, the Procefs of the Court 
 iffues, which is called a Quo minus (from thefe luords^, ^a 
 minus /ujjiciens exijilt, to pay the King's debt). Now all 
 this is mere fiSiion of law ; and fuch fiftions are, among 
 Lawyers, held highly meritorious. Mr. Juftice Le Maillre, 
 foon after the Supreme Court arrived in India, was im- 
 prudent enough to declare, that he would engage to bring 
 every native of Bengal within its jurifdi£tion, by a flight 
 variation in the form of a common writ of Capias, 
 
 The King's Bench has obtained a fimilar jurifdidion in 
 civil aftions, on fuggefiing that the defendant had been 
 guilty of a breach of the peace (which is never allowed to 
 be controverted), and then the defendant is chargeable in 
 finy other aftion. 
 
 Both thefe jurifdlftions are in faft ufurpations upon the 
 Court of Common Pleas ; but as the law of the land is the 
 rule of all the three Courts, no inconvenience is felt by 
 the fubjeft ; and, on the contrary, a beneficial emulation 
 is excited between the different Judges, who fhall moft fa- 
 cilitate juftice. 
 
 But is it fo in Bengal ? Can it be Indifferent to the na- 
 tive whether he is tried by the laws of his own country, or 
 the laws of England ? 3y his native Magiftrates, or by fo- 
 reign
 
 ( >4 ) 
 
 The limits of place are tolerably fixed j and 
 nothing fhort of an earthquake or an inunda- 
 tion can fhift thenn. But where the queftion 
 turns upon the conftruftion, of what perfons 
 fall within fuch and fuch a verbal definition, 
 the diftinftions are infinite ; and are in fa£t as 
 endlefs as nnetaphyfical fophiftry, combined 
 with legal quibbles, can make them, A Chief 
 Juftice, in his definition of the one, is confined 
 by metes and land-marks ; in the other, he is 
 the arbiter of his own jurifdidion, and may 
 comprefs or relax it at pleafure. 
 
 II. If it was the fole intention of the legifla- 
 ture (as I folemnly believe it was) to fence the 
 feeble Indian againft the oppre0ion and rapa- 
 city of Europeans, and likewife of his own 
 countrymen, when ading under the immediate 
 influence of Europeans, the powers of the 
 Court fhould have been confined (as has been 
 already hinted) to the fingle point of rapine 
 and oppreflion. The means ihould have been 
 commenfurate to the end, and no more than 
 commenfurate. The Reader will hear with 
 furprife, and perhaps with indignation, that 
 for one a6lion brought by native againft na-? 
 
 reign Judges ? By a iimple form of Judicature, or by a 
 complicated fyftem of pofitive laws, of which he has not 
 the fmalieft acc[uaintance till he finds this knowledge in his 
 fufferings ,? 
 
 tivc.
 
 ( IJ ) 
 
 tive, for oflfences of the fort the Legiflature 
 had in view, fifty are tried in queftions of 
 Meum and Tuum, and other private rights, 
 where the laws of England ought never to have 
 been interpofed. 
 
 III. This objedion applies, in a flill 
 ftronger manner, to the criminal laws of Eng- 
 land. The Company fucceeding to the power 
 and place of the ancient Sovereigns of the 
 country, it was natural for the natives of high 
 rank and dignity to wifh to retain the appear- 
 ance of their ancient confequence, by con- 
 necfling themfelves with the Company in the 
 executive departments of their new Govern- 
 ment. It was equally politic and necelTary for 
 the Company to encourage this difpofition, and 
 to leave certain high offices in the hands of 
 the natives, as well as the poiTefTions of their 
 ancient diftrids, referving the accuftomed re- 
 venues. But little did the natives imagine they 
 thereby* became fubjeft to all the voluminous 
 laws of England ; or that, in adling under the 
 cftablifhed laws and ufages of their native 
 country, they were to have their adions tried 
 by a different ftandard, againft which they 
 could not polTibly fufped they had offended ; 
 
 • As coming under the defcription of the Statute, of 
 ** INDIRECTLY in the Servicc of the Company." — What» 
 by paying a quit-rent or a revenue for large territorial ju- 
 rifdi^Uons ! Evea fo. 
 
 and
 
 ( j6 ) 
 
 jJTTt! even their lives brought in jeopardy on -any 
 one of our numerous Statutes, the long cata* 
 logiie of whofe capital felonies (amounting 1 
 think to upv/ards of one hundred and sixty- 
 four) has long been a difgrace to our national 
 humanity, if the extreme mildnefs of the Pre- 
 rogative did not fo frequently flep in between 
 the criminal and the laws. 
 
 I fhall not here revive the queftion of Nun- 
 decomar, a Gentoo of great rank and opu* 
 lence, who was executed, in 1775, ori the 
 Statute of Geo. II. for a forgery committed 
 nihe years before the Court was eftablifhed. 
 Peace be to his alhes ! The dangerous in- 
 triguing fpirit of that great and daring man 
 might make it allowable to hunt him out of 
 fociety, per fas at que nef as y but as I take it to 
 be an old and a juft rule, that ' the State ought 
 
 * never to countenance fuch proceedings againft 
 
 * the worit and moft guilty of men, as may be 
 
 * applied to deftroy the bed and moft innocentj' 
 fo I cannot help confidering this whole tranfac- 
 tion is a, ftain upon our Englifli jurifprudence. 
 Any obnoxious native, poffefTing high powers 
 may, according to that precedent, be taken off, 
 if an obfolete Englifh Statute can be difco- 
 vered, to which he has made himfelf unwit- 
 tingly liable-, and an arrow drawn from the 
 fame quiver of our Statute-felonies, might 
 flay the Suhahdar of Bengal, or the Grand 
 
 5 Mogul
 
 ( «7 ) 
 
 Mogul * himfelf, if he fhould ever venture 
 within the limits of this new-fangled conftruc- 
 tive jurifdi(flion. 
 
 • The Grand Mogul receives a penfion from the Com- 
 pany. I confefs the reafoning of the Court of Direftors* 
 on the cafe of Nundecomar, appears to my mind irrefiil-* 
 ibly ftrong. In a Memorial they prefented to his Majefty's 
 Secretary of State in 1777, is the following paflage ; 
 •* We beg your Lordfhip to confider what will be the con- 
 ** fequences, if the Judges proceed upon the principle of 
 ** declaring all the other parts of the criminal law of Eng- 
 ** land to be in force in Bengal ; and they mull fo pro- 
 ** ceed, if they mean to be confiilent with themfelves. 
 ** Can it be juft or prudent to introduce all the different 
 ** fpecies of felony created by that which is called the 
 " Black Ad P Or to involve, as what is called the Co- 
 ** nientry Act involves, offences of different degrees in one 
 •* common punifliment? Cr to introduce the endlefs, and 
 ** almoft inexplicable diftinftions, by which certain adls 
 ** are or are not burglary ? Can certain offenders be tran- 
 ** fported to his Majefty's Colonies in America, or fent to 
 ** work upon the river Thames ? Shall every man, con- 
 *' vifted for the firft time of bigamy, which is allowed, 
 *' protefted, nay almofl commanded by their law, be 
 ** burnt in the hand if he can read, and hanged if he 
 *' cannot read ? — Thefe, my Lord, are fome only of the 
 ** confequences which we conceive muft follow, if the cri- 
 ** minal law of England be fuffered to remain in force, 
 *• and binding upon the natives of Bengal. If it were 
 *' legal to try, to convid, and txtcntc Nundecomar forfor- 
 " gery, on the Statute of George II. it mull, as we con-^ 
 " ceive, be equally legal to try, convid, and to punifh the 
 " Subahdaroi Bengal, and all his Court, for bigamy, upon 
 " the Statute of James I." — Vide Report of the Com- 
 mittee of the Houfe of Commons, Appendix, No. 2. 
 
 D . IV. A
 
 ( i3 ) 
 
 IV. A limited power, over natives of a cer- 
 tain defcription, was given the Supreme Court 
 on the following principle j the equity and le- 
 gality of which (however plaufible) I never 
 could thoroughly underitand. It was fuppofed, 
 that if Europeans only were fubjedl, they would 
 exert their influence over the natives in their 
 fervice, to exercife oppreflions which they 
 themfelves would fear to commit, and by this 
 ftratagem efcape with impunity. Now I 
 confefs that the idea of the European eluding 
 punifhment, and letting the vengeance of the 
 Court fall only upon the ignorant fervile native, 
 who probably durft not difobey the commands of 
 his fuperior, feems to me a ftrange inftance of 
 legiflative wifdom. If confidered with a re- 
 ference to fad, it is cruel and unjuft; if as a 
 declaration of law, it was illegal j for no Bri- 
 tifh fubjedt could fcreen himfelf by employing 
 a native : the well-known maxim ^ui facit per 
 alium facit -per fe, would be an infuperable bar 
 to the excufe. 
 
 V. A folemn judgment of the Court of 
 Common Pleas, pronounced only three years 
 after this new Court was creeled *, is a decided 
 confirmation that the whole fyftem proceeded 
 
 * Blackftone's Reports, lately publiihed, zd Vol. Cafe 
 of Rafael againft Verelft. 
 
 upon 
 .1 -^
 
 ( '9 ) 
 
 upon an erroneous opinion of the law of the 
 land ; for there Sir William De Grey, Sir 
 William Blackftone, and the other venerable 
 Judges of that Court, exprefsly declared, in the 
 cafe of an aflion againft Mr. Verelft, late Go- 
 vernor of Bengal, that the Governor was liable 
 to an adlion of trefpafs, for having by letter 
 commanded, or at leail influenced, Sujah 
 DowLAH, the l<!abob of Oude^ to imprifon the 
 plaintiff, who was an Armenian merchant. 
 Lord Chief Juftice De Grey exprefsly fays, 
 " I confider the Nabob as not being aflor in 
 this cafe, but the a6l to be done in point of 
 law, by thofe who procured or commanded it ; 
 and in them it may doubtlefs be a trefpafs, 
 $ujah Dowlah was a mere inftrument. He 
 acted not from any motives of his own, but 
 gave way through awe or fear." — It happened, 
 indeed, that Sujah Dowlah was not amenable 
 to the Englifh laws j but in the cafe of a com- 
 mon native of Bengal, if he fhould " give way 
 through awe and fear," is the whole weight of 
 the Englifh laws to fall upon the ignorant na- 
 tive, while the Britifti fubjedl efcapes ? Yet 
 fuch is the humane, liberal, and fagacious 
 plan, on which the Supreme Court of Judica- 
 ture exercifes jurifdidlion over the miferable 
 natives within its circle, 
 
 D 2 VI. There
 
 C 20 ■) 
 
 VI. There was indeed another reafon that 
 influenced the Legiflature to include certain 
 natives within the jurifdidtion, which was, that 
 before the Company took the Government of 
 Bengal into their own hands, before they be^- 
 came Sovereigns, and while they were con-^ 
 tented to be merchants (though even then they 
 poflfefled immenfe power and influence in the 
 country), they enjoyed, among other advan- 
 tages, a right of trading Duty fbee in the 
 Nabob's dominions ; and this right their Ser- 
 vants under them likcwife claimed and exer- 
 cifed. It is well known, that certain native 
 merchants, under the name of Banyans or Go- 
 majlahs*, were accufl:omed to furnifh the 
 younger Servants of the Company, who were 
 , commonly extravagant and needy, with large 
 fums of money, in order to infinuate them- 
 felves into their confidence j and under cover 
 of their proteflion, and in their names, to ex- 
 ercife this lucrative privilege of trading Duty^ 
 free. Thefe Banyans committed great abufes, 
 and were faid to have been guilty of great ex-, 
 tortion under this cover : and it was for the 
 purpofe of meeting and overthrowing thefe 
 pradices, that natives, " directly or indi- 
 ** reftly, in the Service of Britifh Subjeds, or 
 ff the Company, were included within the jurif- 
 
 • Stewards or Agents. 
 
 " ■ " diaion.'*
 
 ( " ) 
 
 ^'« diflion."— But it feems to have been for- 
 gotten, at the time the Ad pafled, that the 
 Company's fituation was almoft wholly altered 
 within a few years 5 that, inftead of claiming an 
 exemption from the Nabob's Duties and Cuf- 
 toms, they themfelves became the Sovereigns 
 of the country 5 that this claim of privilege 
 was abforbed in their new relation, and was of 
 courfe abolifhed : and further, that the very- 
 Statute itfelf, empowering his Majefty to eredt 
 the Supreme Court of Judicature, forbids, on 
 the fevereft penalties, the Servants of the Com- 
 pany from carrying on any inland trade. 
 Having no privilege, therefore, to confer on 
 thofe natives, who before were felicitous to 
 become their Banyans *, the reafon ceafes 
 for including them within the jurifdidlion 
 of the Supreme Court. Cejffante caufd cejfat 
 effe5luSj is the inference we Ihould naturally 
 make, — did not the whole hiftory of this Infti-- 
 tution, in every point I have been able to con- 
 fider it, manifeftly prove that it was framed for 
 a different ftate of affairs in Bengal, than what 
 exifted at the time of its adual eftablifhment j 
 ■ — that it was created feveral years after the 
 real neceflity for it ceafed to operate i and in 
 
 * This looks as if the judicial and political parts of that 
 Statute of the 13th George III. commonly called the 
 Regulating ji a, were drawn by different hands ;- which 
 vva* probably the cafe. 
 
 this
 
 ( 22 ) 
 
 this light may be called, not improperly, a 
 pojihumous offspring : — That inflead of rooting 
 out the remaining abnfes, the aftivne principles 
 with which it was endued, took a different 
 turn, — and fo far from fecuring the peace and 
 happinefs of the natives, it has introduced 
 univerfal confufion ; — has loofened every band 
 of public and private life * ; — has embroiled 
 the Company's affairs, and impaired, and al- 
 
 mofl 
 
 * The effefts of this Inftitution in private life, appear 
 very fully in the Report of the Selef^ Committee of the 
 Houfe of Commons. We are there informed, by the tefti- 
 mony of feveral refpeftable Gentlemen who have refided in 
 India, that " the natives would nine times in ten rather give 
 •* np their property, than difpute it in the Supreme Court ; 
 «' — that nothing but perfonal and private pique againil 
 ** one another carries them there ; — that they arc in gene- 
 ** ral averfe to the Supreme Court, which proceeds upon 
 *' the ftrift formalities of law, with a feverity perfedly 
 ** incomprehenfible to the natives," pag. 6i. 77. Captain 
 Jofeph Price obferves, in his evidence, '* that the molt 
 " intelligent natives he ever convcrfed with, had not an 
 " idea of making a diftindlion between law and equity." 
 Poor Jiupiii people ! a lawyer would fay. 
 
 I (hall not add the many impediments to the reception 
 cf our laws, too rooted to be eradicated by force or per- 
 fuafion (which Sir Elijah Impey himfelf has Hated ia an 
 early letter to Lord Rochford) ; impediments which, in 
 my mind, preclude the poffthility of this Court's being of 
 any utility to the natives ; while all its power of doing mif- 
 chief is left to operate in full force in thofe very refpcas. 
 He obferves, " that men among the Hindoos of a high 
 'f caft, and Muffelmen of high rank, think it fo great a 
 
 '» difgracc
 
 ( 23 ) 
 
 moft ruined, its revenues, — and that, at length, 
 the unwearied efforts of the Judges, to enlarge 
 their powers, and extend their jurifdidion, have 
 compelled the Governor and Council to reftrain 
 thefe progreffive mii'chiefs by a ftrong hand, 
 and with an armed force (top the execution of 
 the laws, and the procefs of the Court ; — a 
 nieafure for which they were reduced, in the 
 laft SeiTion of Parliament, to throw themfelves 
 upon their King and Country for an Adt of In- 
 demnity, and which they could only defend on 
 the ftrong ground of a necelTity, that was either 
 fuperior to law, or was ultimately refolvablc 
 
 " difgracc to take an oath, that the utmoft rigour of the 
 *' laws is frequently infufficient to compel them to it as 
 " witneffes ; and that they would pay any demand rather 
 *♦ than anfwer an oath to a bill in equity. A woman 
 *' Hindoo, or Moor, if not the outcaft of the people, can 
 " by no treatment be provoked to apply to a Court of 
 *' Juftice — If (he muft make her perfonal appearance, 
 '♦ there is no procefs Ihc would not ftand out, rather than 
 *• appear as a witnefs — An accufation againft her, if flie iS 
 ** brought forth to make anfwer, is equal to a capital fen- 
 *' tence. The indignity in either cafe is fo great, and her 
 *' feelings of it fo ftrong, that fhe would not, after what 
 *• fhe would confider fuch a difgrace, fubmit to live." 
 Repoftof the Seleft Committee, General Appendix, No. 
 32. After this, the extending our laws to this people, ap- 
 pears not only abfurd in theory, but in praflice t.he moft 
 cruel and inhuman of all experiments that a wife Legifla- 
 ture cvsr made { 
 
 into
 
 ( 24 ) 
 
 into the higheft of all laws, " the fafety of the 
 '-^ State*:' 
 
 Whoever is at leifure to trace the effects of 
 this Jurifdiction, in the large and valuable Re- 
 port delivered to the Hoiife of Commons by 
 the Select Committee laft year, and compares 
 the benevolent intention of Parliament on 
 one hand, in erefting the Supreme Court, 
 with the bitter confequences that have attended 
 
 * The Governor and Council do ncrt hefitate to aflert^ 
 
 m their Petition to Parliament, that " the attempt to ex* 
 
 *' tend to the inhabitants of thefe provinces the Jurifdic- 
 
 *' tion of the Supreme Court of Judicature, and the au- 
 
 *• thority of the Englilhlaw, and of the forms and fiftions 
 
 ** of that law, which are yet more intolerable, becaufe 
 
 *' lefs capable of being underftood, would be fuch a con- 
 
 *' ftraint on the minds of the people of thefe provinces, by 
 
 ** the difference of fuch laws and forms from their laws, 
 
 *' habits, manners, and religious principles, which under 
 
 *' every fucceffive conftitution of the former Governments 
 
 *• have been refpefted and fupported, as might inflame 
 
 •* them, notwithftanding the known mildnefs and pa* 
 
 •• tience which conftitate their general charadler, to an 
 
 " open rebellion ; lefs indeed to be apprehended in a time 
 
 ** of peace, but certain in the event of an invafion; and 
 
 ** that fuch an evil occurring in addition to the others 
 
 ** already defcribed, would add to the national calamity 
 
 •* the national reproach of having defexvedly incurred 
 
 •( it I 1" 
 
 it.
 
 ( 2J ) 
 
 it, on the other, will, if I am not miftaken, 
 find himfelf perfeflly cured of the modern 
 Univerfal Paflion for tampering with A6ls 
 of Parliament, — and will fee one melan- 
 choly PROOF MORE, of the inability and inca- 
 pacity of one country to make laws for the in- 
 habitants of another ! 
 
 A RE-
 
 REVIEW 
 
 O F T H E 
 
 Principles and Conduct of the 
 Judges of his Majesty's Supreme 
 Court of Judicature in Bengal, 
 &c. 
 
 IN the Introduflory Pages that precede, I 
 have been led farther than I originally in- 
 tended, by an anxiety to have the true nature 
 and conftitution of the Jurifdidtion, whofe 
 cfFefts are now under difcufllon, clearly and 
 accurately underftood, — which, I am forry to 
 fay, notwithftanding all that was written, and 
 all that was faid laft year upon the fubjeft, re- 
 mains, in the minds of moft, flill clouded in a 
 great deal of obfcurity. 
 
 I imagine any very fanguine hopes the 
 
 Reader might have entertained, of great and 
 
 important benefits to be derived from this In- 
 
 E 2 ftitutionj
 
 ( 28 > 
 
 ftitution, are by this time confiderably abated. 
 Let us now proceed to examine the condu6l of 
 our new Judges, in the management of the 
 large difcretionary powers with which they were 
 intruded. Let us freely commend their con- 
 du6t, if it has been wife and temperate i and 
 remark their errors with candour, if their ad- 
 miniftration fhall appear to have been as inju- 
 dicious as the original plan was hazardous and 
 doubtful. 
 
 Many obfervations might be made on the 
 temper, charadler, and abilities of thefe Gen- 
 tlemen * i but this part of the fubjed is invi- 
 
 * They were men of fair charaflers in private life ; and 
 the world knew little concerning them till the late com- 
 plaints from India. If their manners have changed with' 
 their fortunes, or their fentiments with their fituation,. 
 the fa£t is not new in the hiftory of human nature. The 
 fame man, who would make an exceeding good Recorder 
 of a borough, may turn out a very indifferent Chief 
 Juftice ; and, by an inconfiftency of charadler not un- 
 frequent, he who was moderate, mild, and temperate 
 in England, may be violent, overbearing, and tyrannical 
 in Bengal. 
 
 If great power and high office alter the charaders of 
 men, on the other hand they influence our judgment 
 concerning them . And Pope fatirically obferves, 
 
 ** 'Tis from high life high charaAers are drawn ; 
 " A faint in crape, is twice a faint in lawn : 
 
 *' A Judge is jull, a Chancellor jufter flill. 
 
 3 dious.
 
 ( 29 ) 
 
 dious, and therefore, on all accounts, better 
 omitted. I fhall not intimate that fuch men 
 were unfit to be trufted with any power -, i 
 had rather fay, with the Britifh inhabitants *, 
 that fuch powers were unfit to be trufted with 
 any men. 
 
 It is generally reported in Weftminfter-hall, 
 that, on the firft eftablifhment of the Supreme 
 Court, only five candidates prefented them- 
 felves to fill the four feats, notwithftanding the 
 novelty of the Inftitution, and the comparative 
 magnitude of the Salaries f. When there was 
 fo little room for fele<51:ion, it would be too cap- 
 tious to blame the choice j but we may furely 
 lament, that fo delicate a truft, and fo nice 
 and difficult a tafk as the application of our 
 laws to the occafions of a diftant country j a 
 tafk which, requiring a mafterly acquaintance 
 with the general rules of jurifprudence (or, in 
 other words, with thofe principles which run 
 through, and are the bafis of all laws), would 
 have given fit exercife to all the abilities of a 
 Thurlow, a Mansfield, or a Loughbo- 
 rough, was confided to four Gentlemen, 
 whofe only qualification (as required by the 
 
 * Vide Petition of the Britifh inhabitants of Bengal, to 
 the Commons of Great Britain in Parliament aflembled. 
 
 t The Chief Juftice 8000 I. per ann. and each of the 
 Puifne Judges 6000 1. Stat. 13 Geo. Ill, c. 63,
 
 ( 3° ) 
 
 Aft of Parliament) was confined to the fingle 
 point of being " Barriflers at Law of five years 
 « Handing ! *'* 
 
 That fuch a trull required great liberality of 
 mind, and very enlarged views (qualities for 
 which our praftical Lawyers are not in general 
 celebrated), will, I think, be admitted by 
 every man who is at all acquainted with hif- 
 tory, and who refledts, that one of the ftrongeil 
 features in the manners, charafler, and go- 
 vernment of Eaftern nations, is the prompt 
 and fimple mode of judicature that has ever 
 prevailed amongft them. I fhall not pretend 
 to refolve this into its caufes j the fa^ is cer- 
 tainly fo. In all the European nations, on the 
 other hand, that pofi!cfs a free Government, 
 the adminiftration of juftice is cumberfome, 
 tedious, and perplexed ; with more of the fub- 
 llance of juftice, and certainly with more of its 
 forms. — Thofe forms are faid to be the price a 
 nation pays for its freedom; and have been 
 confidered as fo many checks, provided by the 
 jealoufy of the people, to limit the arbitrary 
 difcretion of their Judges. In England parti- 
 cularly, the multiplicity of our forms, and 
 " the law's delay," has been complained of 
 ever fince the invention of printing. It has 
 been the favourite theme of ridicule, declama- 
 
 • 13 George III. c. 6^. § 13. 
 
 tion.
 
 ( 31 ) 
 
 tion, or of fatire, as the writer has been dif^ 
 pofed to be witty, moral, or fevere. — : — Yet 
 our lawyers and our laws have gone on in 
 their old courfe i — the lawyers have generally 
 Iwallowed the cyfterj and left their clients only 
 
 With thefe oppofire principles in the two 
 Syftems of Judicature, in India and in Eng- 
 land, the former fummary, fimple, and unex- 
 penfive, yet with the rifque of injuftice ; the 
 latter more perfect in itfelf, yet attended with 
 the certainty of delayj the experiment was now 
 to be made, of tranfmuting thefe oppofite de- 
 fers, and of ingrafting our Engiifh forms f 
 on the G^ntoo flock. — Whatever was the real 
 
 ♦ Vide Boileau, ** Un jour, dit un Autcur," &c. 
 
 f The Judges have adhered to the forms of our laws, 
 jn trials between native and native, with aftridnefs almoft 
 ridiculous. The forms of ejectment, forinftance, oneof 
 our moft technical and fiftitious aftions, are tranfplanted 
 to India, with all the terms of ca/ual rjeHcr, Icfcr of the 
 flaintiff, douhh demife, lea/e, entryy and oufter, &c. Even 
 John Doe has found himfelf upon the banksof the Gan*- 
 ges;— and I have read the proceedings of the Supreme 
 Court in an aftion, with the following title : Doe, on the 
 demife of Narain Tagcor, againll Berjomohon Sircar. — 
 What real tranfport would it have given an old Engiifh 
 lawyer, of the i6th century, could he have forefeen the 
 illuftrious rank to which his old acquaintance John Dot 
 has arifen, in thof? diftant Empires beyond the Cape of 
 Gopd Hope I 
 
 intention
 
 ( 3i ) 
 
 intention of the Legiflature, fuch has been the 
 efFed. 
 
 I ihall beg leave to recur for a moment to 
 the AS: of 1773, commonly called the Regu- 
 lating Aft, by which the Judges were ap- 
 pointed. — There were two parts of that AS:, 
 each having the fame general objeft ; the Re- 
 formation and Prevention of Abufes in the 
 Affairs of India. By one, a Governor and 
 Council were appointed, in whom was vefted 
 " the whole civil and military Government 
 " of Bengal, Bahar, and OrifTaj" by the 
 other, a Court of Juftice was eftablifhed, with 
 the powers, and for the purpofes already de- 
 fcribed. 
 
 Thefe two great branches of the Govern- 
 ment, the executive and the judicial, the two 
 mailer wheels in this mighty machine, were 
 made perfectly independent of each other : 
 they were co-ordinate in point of authority; each 
 was fupreme in its own department j and from 
 their union refulted a third Power, fuperior to 
 both ; namely, a kgijlatrce power ; for we 
 find that all new regulations of the Governor 
 and Council, regiftered in the Supreme Court, 
 were to become binding in thofe provinces *, 
 
 • Vide Seftion 36. 
 
 and
 
 ( 33 ) 
 
 and clothed with all the attributes and qualities 
 that diftinguifh law as a rule of condudl from 
 the caprice of defpotifm. 
 
 As provifion was made for the co-operation 
 of thefe powers, fo the pofiible cafe of their 
 difunion was not unforefeen or unprovided for. 
 If Sir Elijah Impey was confult^d in framing 
 the Letters-patent (as by his own confdrion * 
 it appears he was), it is eafy to forcfec which 
 way fuch provifions were likely to operate. The 
 Mayor's Coiirt at Calcutta, which the Supreme 
 Court fupplanted, was a Court of Equity, It 
 confifted of a Mayor and ten Aldermen, fe- 
 Iccted from the Britifh inhabitants, who, not 
 being lawyers by profeffion, governed them- 
 felves by an attention to the merits of the cafe 
 only ; on which account it was a favourite 
 Court with the Britilh inhabitants j and as they 
 have had a great deal more law, and (as they 
 think) a great deal lefs equity f, fince it was 
 
 • Vide Introduftion. The Reader will obferve, that 
 the Ad of Parliament gives the King power to ereft a 
 Court of Juftice by his Royal Letters-patent, and only 
 draws a general outline for the Crown Lawyers to fill up. 
 
 f One of the Gentlemen lately returned from India, 
 who was examined before the Seleft Committee laft year, 
 faid drily enough, •' That before the inllitution of the 
 *• Supreme Court, they had very little laiu, but a great deal 
 *' oi juj}i(e." — Report of the Seled Committee, p. 73. 
 F abolilhed.
 
 ( 34 ) 
 
 abolifhed, it has been a ftill greater favourite 
 with them: — but it was alleged to be infufficienc 
 for its purpofes, from the narrownefs of its 
 powers, and from the probable partiality of 
 Britifli fubjefts in decifions between their coun- 
 trymen and the natives, and principally on 
 account of its members being removeable at 
 pleafure ^y . the Governor, and t;herefore ex- 
 pofed to his influence. — In- the conftitution-of 
 the Supreme Court, care was taken to avoid 
 this error. The Gentlemen of the founcil were 
 made amenable ,to its procefsj though, thpr 
 perfons were, not^ liable , to arrefl, unlefs for 
 treafon and /felony.— No exemption was eyen 
 allowed for a6ls done in their public capacity.»-- 
 And further, a claufe was tacked t,o the King's 
 Letters-patent, enjoining all perfons, both civil 
 and military^ to aid the procefs of the Court ; 
 fo that in cafe of a variance with the Judges re- 
 fpeding the extent of theirpowers, the Governor 
 ai^d Council, who, were the governing Power of 
 the country ; who held the fword of ftate, and 
 commanded the Company's armies ; who were 
 placed at the head of all the other Britifh fub- 
 je£ts in thofe provinces, were fuddenly to find 
 themfelves naked, and deferted of all afliftance: 
 while the Judges were to be protefted in their 
 perfons, their judgments to be unqueftioned in 
 that country, and let them tranfgrefs their 
 powers ever fo widely, or abufe them ever fo 
 
 flagrantly.
 
 ( 35 ) 
 
 fiagra^ntly, were to be fubjeft to no controulV 
 but by a long, expenfive, and hopelefs refe- 
 rence to Great Britain, from whence redrefs 
 might come too late, if it ever came at all. 
 
 On the other hand, the Governor and Coun- 
 cil poffeffed no fmali fhare of effedive power to 
 counterpoife thefe legal powers in the Court. 
 They derived a living, active energy from their 
 ftation, far fuperior to what flows from Re- 
 cords or Letters-patent. — The troops were more 
 likely to obey the mandate of the Governor and 
 Council, than a writ from the Judges, though 
 the choice, which of the two they fliould obey, 
 feems entirely left with the troops themfelves : 
 A dreadful option, when confidered in theory, 
 and fuch as I believe no wife nation fet an ex- 
 ample of before ! 
 
 We fee, therefore, the cafe of a rupture be- 
 tween thefe two powers of State was not 
 unforefeen ; though I hardly know how to 
 fay it was provided againft. — Natural hiftory 
 teaches us, that animals of prey fhew in their 
 ftrudure the purpofes of their deftination : 
 from the fangs of fome, and the talons of 
 others, we know that they are made for con- 
 teft and for bloodfhed. — We may transfer this 
 obfervation to the conftitution of thefe two 
 Great Powers in the government of India. 
 F 2 They
 
 (36 ) 
 
 They were much better provided for conten- 
 tion than for union. We fee the dragon* s teeth 
 were fown in their very ftruflure. — Nor was it 
 long before they ihot up into a crop of armed 
 men; — for within lefs than five years we find 
 the Governor and Council aftually employing 
 9 body of troops to reftrain the violent pro- 
 ceedings of the Court in the extenfion of its 
 jurifdiftion. 
 
 The Members of theNew Council, appointed 
 by the Aft of 1773, in order to give greater 
 folemnity and weight to their Commiflion, than 
 a mere appointment of the Court of Direflors 
 might be fuppofed to confer, were exprefsly 
 named by Parliament in the body of the Aft. 
 Mr. Hastings, the former Governor, was 
 continued in his high office, with additional 
 powers ; and Mr. Barwell, likewife an old 
 Servant of the Company, together with Sir 
 John Clavering, Mr. Francis, and Colonel 
 MoNSON, were appointed Coiinfellors. — In all 
 their public, deliberative afts, they were to be 
 bound by the majority j — and in cafe of an 
 equality of numbers, the Governor had the 
 calling voice. 
 
 Unfortunately for the Company and for the 
 Country, diffenlions broke out very early in 
 |he Council, The three laft mentioned Gen- 
 tlemen,
 
 ( 37 ) 
 
 tlemen, who went from England at the fandc 
 time with the new Judges (and who may 
 be fuppofed to have had the print and im- 
 prefiion of the fentiments of the Legiflatur? 
 and the nation, on India affairs, ftill freflj 
 upon their minds), adted together in a majo- 
 rity. Mr. Hastings and Mr. Harwell, the 
 old Servants of the Company, formed the mi- 
 nority. 
 
 Into the nature and caufes of thefe diflenfions, 
 I have neither leifure nor ability to examine. It 
 has been faid, that the majority were over- 
 zealous in the work of reformation, and by 
 their violence and precipitation tended to un- 
 fettle the fabric of government, and throw 
 every thing into confufion j and that on this 
 ground they were refilled by the minority, 
 whofe longer experience gave them great ad- 
 vantages. In thefe unhappy divifions, the 
 Judges (to the furprize of many, who reflefled 
 on the ends of their milTion) fupported the 
 latter, and fell into their fcale as a fort of coun- 
 terpoife to the power of the majority. They 
 were accordingly confidered very early as po- 
 litical Judges i a characfter which the confli- 
 tution of this country difapproves, though the 
 lituation of India at that time might invite them 
 to afTume. A great proportion of the Company's 
 Servants fided with the Court of Juftic^ ; and 
 
 the
 
 ( 38 .) 
 
 the popularity of the Judges was fo great, that 
 we find Addreffes * were prefented them from 
 the Britifh inhabitants, in expreffion of the 
 bleffings of this new inftitution. Thefe Ad- 
 dreffes the CTiief Juftice took care to tranfmit 
 to his Majefty's Secretary of State and to the 
 
 * This was in the year 1775. '^^^ Britifh inhabitants 
 were then in high favour with the Chief Juftice ; though 
 afterwards, when (difTatisfied with the arbitrary conduft 
 of the Judges) they claimed a right of trial by jury, he 
 held a different language ; it then fuits his purpofe to 
 load them with every foul imputation that calumny can 
 fuggeft. — Vide his Letter to the Secretary of State in 
 1779. — Seiedl Comm. Rep. Gen. App. 
 
 It is certainly true, that a bad man has the beft and 
 cleareft right to abufe thofe who have formerly fupported 
 him. If he admits their fupport was ill-grounded, and 
 that their motives were wrong in one inftance, he may 
 with fome colour impute it in another.— The Public will 
 fay they were juftly ferved. 
 
 It ought to be mentioned, that there were Addreffes to 
 the Judges likewife from the natives refident at Cal- 
 cutta. Of the real value of thefe, we may form fome 
 judgment from the evidence that has appeared before the 
 Houfe of Commons. One of the witnefTes being alked, 
 ** whether he believed thefe Addrefi'es were the fpon- 
 ** taneous effefts of their own ideas, or the effeds of in- 
 " fluence or fear ? Said, he believed they were principally 
 ** the efFefts of influence and fear, if not altogether fo; 
 " inafmuch as he has been given to underfland, from va- 
 •' rious defcriptions of natives, that thofe who did not 
 " fign fuch Addreffes would not be confidered as the 
 *' friends of the Supreme Court or the Government." 
 Report of the Seleft Committee, p. 60. 
 
 Court
 
 ( 39 ) 
 
 Court of Directory, as a clear ^nd decided 
 pro,of of the lenfe the Public entertained of the 
 beneficial effects of the Court's institution j— 
 though many confidered them at Calcutta as 
 nothing more than a political manoeuvre, fct 
 on foot by the minority to gratify the Chief 
 Juftice and his brethren on the Bench. 
 
 From the moment the Judges appeared in 
 *thc<Ii^t" of 'POLITICAL characters, moderate 
 
 men, both in India and in Europe, fcrupled 
 
 not, lo pronounce, that, the principal ends, of 
 • their appointment were defeated. ^ From the 
 '^faifrte moment," the^ little hope of this ihftitd- 
 
 tion's proving of any utility to the natives, was 
 
 entirely done. away.. ..,.A ; \\ia\^<:. » 
 
 . . ..jI.'.i. ill ; vv.l) -ngi^inuij 
 ** Ex illo flaere aq retro. Tublapfa referri 
 
 " Spes Danaum." 
 
 The trial, i^'Gonvidl'ionV;: and execution of 
 NuNDEcoMAB:,"'for an.' offence not capital by 
 the laws of his own country, ; though made 
 capital by an f Englilli. Statute ; and the cir- 
 curhftance of -its being- -enfoiced at the cri- 
 tical period "when he was i^x a public 
 charge againft Mr. Hast-ings, contributed to 
 ftrengthen this impreflion. The natural mif- 
 apprehenfion.of the hatiyes,- that he was hano-ed, 
 
 ^ hot for the . forgery ,jbilt/^r*'daring to prefer a 
 complaint againit lanEnglifli Governor, is 
 
 /aid 
 
 7
 
 < 40 ) 
 
 'faid* to have intimidated the natives from 
 making any more complaints ag^ihft Europe- 
 ans 
 
 * I have been cautious in exprefling myfelf; i<ir xiii* 
 doubtedly a good deal of party-ipirit ^ais mingled in t)»e 
 opinions of men on this fubjedl. With a very large de- 
 fcription of perfons in India, the execution of Nunde- 
 comar was highly grateful. There was no doubt of his 
 having committed the fo'rgery j— and the t)dru,m qf his 
 charafter, his great power to do mifchief, his dntriguiijg, 
 flagitious difpofition, made him a dangerous member of 
 ' fbciety. But, in general, thefe political reafons have not 
 'Jbeen thought fufficient in England to warrant the Judges 
 in proceeding to enforce a fentence of death upon :hini } 
 and they have accordingly been blamed, lil. For trying 
 him for an offence, not capital by the laws of his own 
 country^ upon the Statute of George II. which makes it 
 capital, when they might have tried him for the offence-as 
 it ftood at common-law ; in which cafe the puniihment is 
 not capital, zdly. For not refpiting him (as they are ex- 
 prefsly empowered to do) till his Majefty's pleafure fhould 
 -have been known. 3dly, For conftruing the Aft itfelf 
 (2 George II.) to extend to Bengal, when it is demonftrable 
 that it related to the ftate of credit in England only ; by 
 its mention of Exchequer tallies, and other particulars, 
 and by there being an exprefs claufe in it, that it ihall not 
 extend to Scotland — a fortiori, it ought not to have been 
 extended to Bengal, a country which was not in the pof- 
 fefllon of the Englifti till near 40 years after the Aft 
 pafled. — On thefe accounts the Judges have been cenfured 
 for this tranfaftion feverely, and I think jnftly ; though I 
 cannot go fo far as fome have done, in infmuating that 
 they proftituted their judicial powers in favour of Mr. 
 Haftings, in order to commit a legal murder, and 
 ftained their ermine in the blood of his opponent and ac- 
 
 cufer
 
 { 41 ) 
 
 ans high in office; and the fame efFeft was 
 nearly produced at that time which Sir Elijah 
 Impey malignantly imputes to the influence 
 and intrigues of Mr. Haftings in 1780*, when 
 thefe two Chiefs of the Court and Council were 
 as ftrongly oppofed to each other, as they were 
 firmly united in 1775. 
 
 I have been credibly informed, that the late 
 Lord Clive confidered the inftitution of this 
 Court as a wild projedl, and foretold that the 
 Judges would find, foon after their arrival, that 
 they were fent on an idle errand ; and would 
 pocket their falaries very contentedly, and do 
 mthing. 
 
 Another Gentleman, likewife a Governor of 
 Bengal, being fhewn the Letters-patent f 
 (which were the inftrudions of the Judges), 
 pointed out very ftrongly in what refpedl the 
 powers conferred upon them would not only 
 
 cufer Nundecomar. Vide Letter of the Majority of 
 Council to the Court of Diredors in 1775. Vide alfo 
 Letter of Sir Elijah Impey to Lord Rochford. — General 
 Appendix to the Seled Committee's Report. 
 
 * ** It is not probable you will hear of any further ex- 
 "' ertion of the natives in fupport of their rights againft 
 ** the power either of Government or individuals." Let- 
 ter to Lord Weymouth. Seleft Committee's Report, 
 CofTijurah Appendix, No. 25. 
 
 f Commonly called the Charter of Juftice. 
 
 G be
 
 f 42 J 
 
 be of* no \^(e, but be produflive of much mif- 
 chief. — His obfervations appeared fo forcible 
 to the framers of thofe Letters-patent, that 
 a promifc was made to curtail the powers fo 
 o^iven, before the^ Judges left England j but 
 this promife was never performed } and the 
 Judges faid, they would fend oyer their earlicft 
 obfervations on the fubjeft, and then the Let- 
 ters-patent might be afterwards altered.—- — 
 The Governor of Bengal, to whom I allude, 
 knew too much of mankind, to fuppofe the 
 Judges would ever be acceflbry to any diminu- 
 tion of their own authority : no inftructions of 
 that fort were accordingly ever fent back from 
 India. Vejiigia nulla retrorfum. 
 
 That the Court has produced much mifchief, 
 as this Gentleman forefaw, is, I believe, a to- 
 lerably clear propofition. That it has been of 
 no ufe, as Lord Clive foretold, or at leaft of no 
 xift that can be faid in any degree to counter- 
 balance its mifchiefs, is at leaft as evident. 
 But it certainly has not been unaftive in the 
 fcnfe the noble Lord ventured to prophecy; 
 on the contrary, from the very firft arrival of 
 the Judges, we find them engaged in perpetual 
 contefts with the majority of the Council, arid 
 in conftant ftruggles for the extenfion of their 
 jurifdidlion j one fide as vehemently ailerting, 
 and the other as refolutcly refifting, the claims 
 
 of
 
 C 43 ) 
 
 of the other. Mutual altercations fucceeded 
 to mutual claims j till at length, inftead of 
 Reverend Judges exercifing in peace the digni- 
 fied functions of their offices, we are fliocked 
 with all the violence of partifans, heated with 
 oppofition. 
 
 In fact, a coincidence of events, which was 
 wholly unforefeen in England, invited, and 
 almoft impelled the Judges to affume a political 
 importance, which nothing but the divifions 
 of the Council could have nurfed to the fize it 
 afterwards attained. We muft therefore place 
 it to the account of human infirmity, if the 
 Judges, having once tailed of power, grew 
 intoxicated with the draught ; and if, after 
 finding themfelves nearly in the fituation of 
 umpires, and holding the balance of power 
 between the two parties, they Ihould be will- 
 ing, when this coincidence of events had 
 pafled away, to maintain, by all ways and 
 means, their power and confequence in the 
 Settlement. 
 
 This power, and this authority, which they 
 gained by accident, they have kept by con- 
 ftruftion ; and it has been a conftant fource of 
 complaint — ifl. That inftead of confining 
 .their jurifdidion over the natives, within the 
 meaning of the Ad of Parliament, they have 
 G 2 allowed
 
 ( 44 ) 
 
 allowed it an operation that Included every na- 
 tive within the provinces of Bengal, Bahar, and 
 Orifla ; and idly. That under pretence of con- 
 fining the Governor and Council within the 
 line of their duty, they have alTerted a right of 
 infpedling and controuling their proceedings, 
 and have defignedly degraded the authority of 
 the Governor and Council in the eyes of the 
 natives, well knowing that every diminution 
 of their authority is an accefTion to themfelves 
 of power and influence in the Settlement, 
 
 I allude here not fo much to the declarations 
 of the majority of the Council, which the 
 Chief Juftice afcribes to minds dijlempered 
 with faction (though the refpe(fl:able names of 
 Sir John Clavering, Mr. Francis, and Colonel 
 Monfon, might well have exempted them from 
 fo harlh an imputation), as to the very folemn 
 Memorial of the 19th of November 1777, ad* 
 dreffed to his Majefty's Secretary of State by 
 the Court of Directors *, who may be con- 
 fidered as a middle body between the two con- 
 tending powers, and who, as the Truftees of the 
 Public for the fafety of thofe countries, had an 
 undoubted right to call upon the Minifters of 
 the Crown to apply a remedy to the grievances 
 they ftated. 
 
 • This Addrefs was figned by twenty-three Direr- 
 tors out of the twenty- four. 
 
 If
 
 ( 45 ) 
 
 If I rightly underftood the Lord Chancellor, 
 in the debates of Parliament upon this fubjedt 
 lad year, the Judges did receive fome admoni- 
 tion refpecling their condu(5l ; but he faid, 
 *' that they were tenacious of their powers." 
 In regard to the Memorial I have jull men- 
 tioned, his Lordfhip rem.irked, " that in his 
 *^ opinion a Secretary of State, or an Officer of 
 *< the Crown, had no authority whatever to iffuc 
 *' a mandate to controul a Court of Juitice efta- 
 *' blifhed by an Aft of Parliament j" and fur- 
 ther, that " it would be even criminal fo to do ;** 
 a dodtrine in which every conftitutional lawyer 
 will, I am fure, concur with his Lordlhip. 
 
 Yet perhaps this is rather a dextrous de- 
 fence, than a fatisfadlory reafon, for lettrng 
 thefe diforders run their length j till the Gover- 
 nor and Council were at laft compelled to em- 
 ploy a military force to corredl the mifchief. If 
 the mandates of a Secretary of State were not 
 to be rifqued, was it not in the power of the 
 Miniftry, was it not their duty to have brought 
 a Bill into Parliament for this purpofe ? inftead 
 of fitting with folded arms * to wait the event of 
 thefe dangerous collifions between the powers 
 of our Government in India j and, inftead of 
 
 ♦ Scilicet is fupcris labof eft ! ca cura quietoi 
 
 SollicitatI ViRG. 
 
 leaving
 
 ( 46 ) 
 
 leaving them to themfelves, to work order out 
 of confufion, and a new fabric from the diflb- 
 lution of the old. 
 
 It is hardly neceflary to go over the ground 
 I have trod before, to give the Reader an idea 
 of the extent of jurifdiftion afliimed and exer- 
 eifed over the natives by the Supreme Court. 
 Having ftated in the Introdu<Elion what I con- 
 ceived to be the intention of Parliament in 
 making a?iy of the natives amenable to the 
 Bnglifh laws, and likcwife the want of pre- 
 Cifion in defcribing this intention *, I fhall now 
 content myfelf with exhibiting a fummary 
 Iketch ov fynopfis of the real and acquired jurif- 
 diftion of the Supreme Court within the fpace 
 of five years. — This I fhall do in the form of a 
 •I'able, for the better bringing the fubjed 
 within one view. The Reader will pofTibly be 
 aYniifed to fee by what ingenious contrivances 
 (particularly by the aid of a certain ufeful en- 
 gine the Lawyers call construction) this jui- 
 ;rifdi6tion has enlarged itfelf, and will admire 
 the yielding texture of ail words, that pretend 
 
 * When men are fatisfied that the end is good, they are 
 not' very exa£l in defcribing the means ; — hence the latitude 
 leh by the Statute ; and hence the mifchiefs complaint 
 of. The event has fhewn the extreme danger of truftir^ 
 a difcretionary power to any jwdgc or Judges, on the pre- 
 fuinption that they will not abufe it. 
 
 to
 
 ( 47 ) 
 
 to fet limits to a legal jurifdidion. It requires 
 little fagacity to foretel, that; Where a Court 
 of Juftice is Supreme in point of authority ; 
 where it has the conftruflion-of its own powers 
 lodged in the bread of its own Judges, the 
 fmallefl: opening to any latitude of interpreta^i 
 tion, will ferve to extend its jurifdiflion a^ in- 
 finiium. Every decifion becomes a precedent 
 for thofe which are to follow 3 till, like vthe 
 circles made by a pebble " ftirring the peaceful 
 *' lake," they groW wider and wider, and.ii 
 length take in every obje<3: tihat ambiiiojj can 
 defire. - ;.--', ' • ,■ •■ y/^ ^i.^ 
 
 ** The centre Ihook : a circle ftraight fucceeds, 
 " Another ftill, and (till another fpreads, &:c.'* 
 
 : .1 
 
 TABLE 
 
 f
 
 ( 48 ) 
 
 ABLE 
 
 O F T H E 
 
 Real Objects of this Court's Ju- 
 risdiction, as marked out by the 
 Statute of 13 George III. 
 
 I. British Subjects. 
 
 II. Natives dire5lly or indire^ily in the Service 
 of^ or employed by^ British Subjects, or 
 THE India Company. 
 
 Acquired or conJlruElive Objects of 
 its Jurisdiction. 
 
 I. Under the Words \ LL Europeans, as 
 British Subjects. jlV ^^^^ foreigners* as 
 BritiQi-born Subjefts, re- 
 fiding within the limits of 
 the Factory at Calcutta, 
 and its environs. 
 
 All Natives refident 
 within the local limits 
 juft mentioned, upon the 
 
 • By living under the proteftion of Britifli arms. Fo- 
 reigners are certainly amenable to Britifli laws. 
 
 fame 
 4
 
 ( 49 ) 
 
 fame principle of its 
 beinor a British Fac- 
 TORY. Thus, by one dafh 
 of the pen, four or five 
 
 HUNDRED THOUSAND * 
 
 natives, ignorant of our 
 laws, cuftoms, and lan- 
 guage, are made amen- 
 able to our civil and cri- 
 minal code, to our fta- 
 tutable felonies, and to 
 the rules of our common 
 law, in all their tranfat- 
 tions with one another. 
 
 All Natives, not 
 only f during their refi- 
 dence, but having once 
 RESIDED, at Calcutta, are 
 liable for every thing 
 done, or contradt made, 
 during fuch former re- 
 
 • Mr. Verelft ftates them at fix or feven hundred thou- 
 fand ; but I take the above ftatement to be nearer the 
 mark. Vide Report of Seleft Committee. 
 
 -f- Though this fort of jurifdiftion may, and I believe 
 is flriftly conformable to law, its coniequences have been 
 found highly oppreffive. A native of rank (the Rajah of 
 Biffenpore) was feizedat the diltance of eighty miles from 
 Calcutta, upon pretence that he was fubjed to the jurif- 
 diftion of the Court. Being dragged down to Calcutta, 
 he was then (legally) arretted as a refident of the place, 
 aed caft into the common gaol. 
 
 H fidence.
 
 ( 5° ) 
 
 fidence, though they may 
 afterwards dwell in parts 
 of the provinces not 
 within thefe limits. This 
 city being the feat of 
 Government, becomes 
 occafionally the refort of 
 every man of rank and 
 fubftance in the country. 
 
 II. Under the terms, ALL Natives farm- 
 jNDiRECTLY IN THE ing the Company's re- 
 Employment of venues*, in the dif- 
 THE Company. ferent provinces and 
 
 fubordinate diftrifts. 
 
 All Natives, being 
 the Sureties of fuch per- 
 fons ; who may be con- 
 fidered as the monied men 
 of the provinces. This 
 conftruflion f arofe from 
 the power the Surety 
 
 * This adjudication happened in 1778. — It excited an 
 univerfal alarm among the renters, or farmers of the re- 
 venues in the province of Bahar, who thereupon prefented 
 a Memorial, defiring to be releafed from their engage- 
 ments with the Company, if this circumftance made them 
 liable to the jurifdidion of the Supreme Court. 
 
 f The native who was declared amenable, was Behader 
 Beg, who appears to have been concerned as furety for the 
 le/enue of twenty-five villages in the Bahar province. 
 
 6 poffefTed
 
 ( JI ) 
 
 poflefled of colle6ling 
 the revenues, in default 
 of the principal. 
 
 All Zemindars con- 
 neded with the Com- 
 pany's revenues. The 
 authority and fituation 
 of Zemindars are fully ex- 
 plained in the Report of 
 the Sele<5t Committee, 
 They are a fort of here- 
 ditary Proprietors of dif- 
 trifts, and pofiefs a de- 
 gree of power and influ- 
 ence, that the fame rank 
 or property can never 
 confer in England. They 
 ' pay a fixed rent, or rather 
 a ftated tribute, to the 
 Company, for the reve- 
 nues of their diftridsj 
 and this concern with 
 the revenues conftitutes 
 the doubtful circum- 
 fiance of their being in- 
 direftly employed by the 
 Company, which has oc- 
 cafioned many difputes. 
 The Chief Juftice has 
 conceded the point (q 
 far, as to admit that a Ze- 
 mindar ^ quoad Zemindar, 
 is not fubjeft to the ju- 
 rifdidion j that is, if he 
 collets the revenues of 
 H 2 his
 
 ( 52 ) 
 
 his diftrid to his own 
 ufe. But it is well known 
 that they are almoft all 
 tributary to the Com- 
 pany, which depends on 
 them for its refources; 
 and we find that one 
 great Zemindary pays 
 alone to the Company 
 upwards of 220,000/. 
 fterling per ann. Vide 
 Select Commitee's Re- 
 port, p. 45. 
 
 The direft queftion 
 has never come before 
 the Court j but many 
 Zemindars have been 
 haraffed with writs ; 
 fome of them have been 
 rekafed on paying down 
 a large fum for accom- 
 modation-money to the 
 attornies, and others have 
 refifted, by a military 
 force, all attempts to 
 arreft them j fo that a 
 regular and formal adju- 
 dication has always been 
 prevented *. 
 
 III. Vnder 
 
 * There is no doubt which way this queftion would be 
 determined. Vide Sir Elijah Impey's laft letter to Lord 
 Weymouth, where he contends for the propriety of fub- 
 jugatlng the Zemindars- ta the jurifdidUon of the Supremo 
 
 Court,
 
 ( 53 ) 
 
 III. Under tbeTerms J THE Cauzees and 
 Natives in the Muftees, the Mahome- 
 Service of the dan Judges who aflift: in 
 Company. the Provincial Courts of 
 
 Judicature, in difpenfing 
 juftice to fuch of the na- 
 tives as are clearly not 
 within the jurifdiftion of 
 the Supreme Court *. 
 Being ultimately paid 
 their falaries by the Com- 
 pany, thefe perfons may 
 be confidered as literally 
 
 Court, and of making them pay their debts, as well as 
 oth^r great men. 
 
 The Governor and Council, on the other hand, con- 
 tend, that, befidcs the difgrace of fubjefting the Zemin- 
 dars to arrcfts, &c. ** feme of whom are the defcendants of 
 " men who commanded armies, and pofTciTed the rights 
 " of Sovereign dominion over theRyats or vaffals of their 
 " refpeftive Zemindaries ; almoft all of them are indebted 
 *' in enormous fums, for old debts moftly accruing from 
 *' extorted donations, and from the ufurious and accurau- 
 *' lated intereft of many years, but which are capable of 
 " being eftablifhed in an Englifh Court of Law ;" and that 
 one of the leaft confequences of fuch a jurifdiftion over 
 them, would be a complete transfer of the whole property 
 of thofe provinces (a concuffion too violent for an unfettlgd 
 Government to bear), as well as a total emancipation of 
 thofe Zemindars fxom.ibe cou-ttonl of thr Goveroor and 
 Council. 
 
 * See Fatna Cause. Report of the Sclefl Coifimitree. 
 
 in
 
 ( 54 ) 
 
 in the employment of the 
 Company -, though it is 
 difficult to conceive that 
 a Mahomedan or Hindoo 
 Magiftrate was within 
 the contemplation of 
 Parliament as an Agent 
 of Europeans. Vide In- 
 trodudion. 
 
 By authorifing writs to 
 go againft thefe native 
 Magiftratesjthe Supreme 
 Court, in effecft, annuls 
 their decrees. " No ! 
 " fays the Chief J uftice, 
 *' we claim no authority 
 *' over their decifions j 
 '* we only proceed jn 
 " ferfonam-, that is, to 
 " fine them in damages 
 *' where we think they 
 *' have proceeded irre- 
 ** gularly j their decrees 
 " are liill in force." 
 Happy, ingenious, fa- 
 tisfaclory diftinftion * ! 
 
 Such has been the rapid growth of this con- 
 Jlru^ive ]uvi^6\di\on of the Supreme Court, as 
 diftinguilhed from what I call-the real jurifdic- 
 
 • Vide Sir Elijali Impey's Speech. Patna Appendix. 
 Seleft Committee's Report. 
 
 tion.
 
 ( ss ) 
 
 tion, which Parliament originally intended. I 
 am far from faying that the Judges have always 
 decided wrong in queftions of jurifdidtion ; 
 though the natural jealoufy of power may in- 
 cline us to fufpedt it. — Their decifions may have 
 been in feme cafes the unavoidable efFefts of 
 that latitude of interpretation left in the A6b. 
 But I think the Reader will fee there was fomc 
 foundation for the conftant complaints of the 
 majority of Council ; and that thofe complaints 
 are neither violent nor factious (as the Chief 
 Juftice infmuates), nor too ftrong for the oc- 
 cafion. " We will not (fay the Gentlemen of 
 " the Council) take upon us to decide, whether 
 ** the condudt of the Judges is fupported or 
 «* condemned by the ftrid: letter of the A<5t of 
 " Parliament and his Majefl-y's Charter; but 
 " we are ready to declare our clear and delibc- 
 ** rate opinion, that it is not conformable to 
 " the true fpirit of the Lav/ and Charter, or to 
 ** the views and principles on which the Su- 
 " preme Court of Judicature was inftitutedby 
 " the Legiflature : much lefs ca« we difcover, 
 " in the proceedings of the Judges, any traces 
 <* of that moderation and difcretion which 
 ** might have been expe6led from their wif- 
 ** dom, and which ought to have been ob- 
 *' ferved, particularly at the outfet of a new 
 " Inftitution, and in the cxercife and applica- 
 
 " tion
 
 < JS ) 
 
 " tion of Judicial Powers, not only new in 
 *' themfelves, but derived from a Sovereignty 
 " unknown to the people over whom thofe 
 *' powers were to be exerted. In a fituation 
 ** i'o full of difficulty and hazard, and in which 
 ** an unguarded or precipitate affertion, even 
 " of the powers legally veiled in the Supreme 
 *f Court, might be attended with the moll 
 " dangerous confequences to the State, we 
 " rather hoped for afllftance from the Judges 
 <^ in the fettlement of this Government, than 
 .'.'had any apprehenfion that they would- carry 
 •** their jurifdidlion to an extent .which, as we 
 ,",,;froTn thq firll apprehended, and as we are 
 .** now convinced, mull throw the whole coun- 
 •" try into confufion." Gen. App, No. 3. 
 Sele6l Committee's Report. 
 
 When the Bill that pafled laft year, for ex- 
 plaining and limiting the jurifdiftion of the 
 Supreme Court, was agitated in the Houfe of 
 .Commons j few, and very few of the Judges 
 friends ventured to fay that their conduft had 
 been difcreet, temperate, or wife. One Gen- 
 tleman, who headed a very refpedable majo- 
 . ritty of that Houfe in the laft Parliament, in 
 declaring that " the influence .of the Crown had 
 " increafedy was increafing^ and ought to be di- 
 " minijhcd,'* was unwilling to admit, and yet 
 
 unable
 
 ( 57 ) 
 
 unable to deny, that the Jurifdiflion of the 
 Supreme Court had increafed, was in- 
 creafing, and ought to be diminifhed *. It 
 will poflibly be faid, in vindication of the 
 Judges, that unlefs they extended their jurif- 
 diflions over the natives, the Court and its 
 pfadlifcrs would have little or no bufinefs, 
 
 * It was the opinion of many perfons, who are the ad- 
 mirers and friends of the Gentleman above alluded to, 
 that, in the debates concerning the Supreme Court, he 
 fell below the line of his own great talents, and difco- 
 vered too little of that love for the general rights of man- 
 kind, for which he is fo confpicuous on other occalions ; and 
 too much of the ipirit of a praftifing lawyer. Almoll all f 
 the Gentlemen who vindicated the Judges, were, or had 
 been lawyers by profeffion ; and, what was remarkable, they 
 all fet out in this bufinefs with avowing to the Houfe, that 
 their only motive for taking a part in the debate, was their 
 private friendfhip for the Judges ; a confeffion which at once 
 deltroyed the v/hole ftrength of their argument. This con- 
 firms a common-place opinion, that a lawyer being by 
 long habit accuftomed to fpeak for his fee, cannot fpeak 
 well without a fee. — ** 'The breath of an unfeed laixiyer" 
 was proverbial in Shakefpeare's time; — and it likewife gives 
 fome countenance to Mr. Horace Walpole's feyere farcafm 
 upon the great lawyers and Chancellors of former days: 
 Speaking of the refpeftive hiflorical writings of Sir Tho- 
 mas Moore, Lord Bacon, arid Lord Clarendon, " I hope,'* 
 fays Mr. Walpole, " no more Chancellors will write 
 ** our ftory, till they can divert thcmfelves of that habit of 
 *' their TprcfeiCion — apologizing /or a i>ad cau/e ." 
 
 t Sir Fl-r N-rt-n, Mr. D-nn-g, Sir R— d S-tt-n, &c.— Sir Fl— r 
 only fpoke a few words wherv the bufinefs firft: came on in the Houfe, 
 but dues not appear to have taken an adtive part. 
 
 I Except
 
 ( 58 ) 
 
 Except in the cafe of Nundecomar, few na- 
 tives exhibited complaints in the Supreme 
 Court againfl: Britilh fubje6ts * in power -, and 
 Sir Elijah Impey, foon ^fter his arrival, took 
 an opportunity of declaring, in a manner very- 
 honourable to himfelf, that the general reflec- 
 tions caft upon the Mayor's Court in England, 
 were totally ill-founded j and, inflead of find- 
 ing all his time taken up, on his firft arrival, 
 in fetting afide its decrees, that in all the caufes 
 he had any occafion to examine, the Mayor's 
 Court had determined according to equity and 
 fubftantial juftice. — Such was the language of 
 moderation ; before he was irritated withoppo- 
 fition, or inflamed with the profpefl of obtain- 
 ing political confequence in the Settlement. 
 
 What then was to become of the lawyers of 
 the Supreme Court, if thefe fources of liti- 
 gation were {topped up ? Or whence was fub- 
 fiftence and fupport to be derived to the 
 glorious phalanx of advocates, attornies, and 
 attornies' clerks, &c. who now began to refort 
 in great numbers to the llandard of the Chief 
 Juftice ? Befides the many adventurers who 
 
 • It is faid only two aftions have ever come before the 
 Court, for peculation and abufe of office ; offences which, 
 next to reftraining the outrages of open violence, the Le- 
 giflature had principally in view in erefting the Supreme 
 
 Court. 
 
 were
 
 ( 59 ) 
 
 were allured from England, in hopes o^ mak- 
 ing large fortunes in this line, many perfons 
 took up the profefTion there, who had been 
 unfuccefsful in other purfuits. In Ihort, they 
 formed a very numerous corps, and it was na- 
 tural for Sir Elijah Impey to confider himfelf 
 as their patron and guardian. We find from 
 his letters, when the bufinefs of the Court 
 fell off in confequence of the difputes between 
 the Governor and Council and the Judges, 
 that the attornies of the Court prefented an 
 Addrefs to the Judges, in which, after 
 making very honourable mention " of the 
 ** attention they had been pleafcd to fhew 
 <' to the promotion of their intereft *,'* they 
 humbly petition them not to admit any more 
 attornies to pradtife in the Court, as bufinefs 
 began to decline fo rapidly. This Addrefs Sir 
 Elijah inclofes, with a very pathetic rcprefen- 
 tation, to the Secretary of State, to convince 
 his Lordfhip of the fatal confequences that 
 would follow, fhould the jurifdidion of the 
 Court be reftrained f . One would fuppofe, 
 thofe Gentlemen had really a Freehold In- 
 
 • Vide Seleft Committee's R«port. Coflijurah App. 
 No. 27. 
 
 f Ibid. Coflijurah App. No. 26. " The advocates, 
 ** attornies, and officers of the Court, luho hwve not al- 
 " ready fucceeded, will be reduced to a moll deplorable 
 *' fituation."— Letter to Lord Weymouth. 
 
 I 2 TEREST
 
 ( 6o ) 
 
 TEREST in the qaaiTek g,nd difputes of man- 
 kiod, or that they had a Patent Right to diftrefs 
 and harrafs the natives ! Indeed it has been 
 gravely contended, that, as almoft all deicrip- 
 tioHs of men, " both with and witliout capaci- 
 " ties"' (as Lordi Ciive expreifcd it), had ac- 
 quired great riches in India, it was hard that the 
 lawyers Ihould be the only clafs who were de- 
 barred this ber^efit. — The harveft was over ! it 
 was cruel to envy them thefcanty ^i gleanings of 
 the ^elJ. 
 
 . I believe it will be thought, the con- 
 ftruifbions pot upon their jurifdid:ion, by the 
 Judges, were tolerably comprehenfive. Under 
 fome interpretation or other, hardly a native of 
 opulence and rank was exempt from it. As 
 almoft all power in that country may be faid to 
 be an emanation from the Company, who repre- 
 fent the antient Sovereignty, it was eafy to con- 
 ftrue every native, polTefied of any power, to 
 be " indirectly employed by the Company." 
 
 ' However, the great body of the natives in 
 the refpedive provinces *, whom their extreme 
 
 poverty, 
 
 ■\ " Where Statutes glean the refufe of the fword.'* 
 
 Johnson. 
 
 * ** The major part of the inhabitants of Bengal fup- 
 ** port themfelves and families on fo fijiall an income as 
 
 " 3 1-
 
 ( 6i )■ 
 
 Doverty, more than the exprefs intention of 
 Parliament, exe<mptecl from the jurifdittion of 
 the Supreme Court, were ftill left to their own 
 laws, in the Country Courts of Juftice. Under 
 the antient Mahomedan Government, juftice 
 was adminiftercd by the f Cawzees and Muf- 
 TEES, men learned in the laws of the Koran ; 
 and when our Englifh eftablifhment fuperfeded 
 the old Government, and Councils of Revenue 
 were appointed in every large province (con- 
 fiding, as 1 have faid before, of the Company's 
 moft experienced Servants), fome little altera- 
 tion was made in the Courts of Judicature. 
 The prefence of one J. of the Members of 
 Council, attended by the Cawzee and Muftees^ 
 was required. The Member who prefided^ 
 was called the Superintendant of the Adaulut §, 
 
 ** 3I. 10 s. a year."— Evidence of Richard Banvell, 
 Efq. — Seleft Committee's Report. 
 
 f The name cf Cawzee, or Cadi, mull be familiar to ' 
 every perfon at all read in Eaftern Hillory. 
 
 X The Regulations for thefe Courts were framed by 
 Mr. Haftings, as was menticmed before. They appeal* 
 printed in the Proceedings of the Houfe of Commons ia 
 1772 ; and, not being annulled or altered when the Su- 
 preme Court was eftabli/hed, were fuppofed to have re» 
 ceived the tacit aiTent of the Legiflature. 
 
 § Or Court of Juftice. — Courts of Adaulut, Pro'vincial 
 Courts of Juliice, and Country Courts, are different names 
 for the fame Courts, and are ufed promifcuoufly in moH 
 of the Eaft India publications. 
 
 In
 
 ( 61 ) 
 
 In matters of Mahomedan law, the report of 
 the Mahomedan lawyers was to dire^b him : in 
 queftions of Hindoo law, the Pundits* were 
 confultcd. If no objedlion was made to the 
 report of thefe native men of the law, the pre- 
 fiding Member of the Provincial Council or- 
 dered it to be carried into execution j and an 
 appeal lay from him to the Provincial Council 
 at large, and from thence to the Governor Ge- 
 neral and Council at Calcutta. 
 
 It was obvious that thefe Judicatures muft 
 be more congenial to the natives, than the Su- 
 preme Court itfelf. The points of comparifon 
 between the two Syflems are brought together 
 in a fmall compafs, by a Gentleman long refi- 
 dent in the provinces, who declared, that, " in 
 «' his opinion, the natives were much better 
 «' pleafed to plead their own caufes" (which is 
 the cuftom of that country) " in their own 
 *' Courts, near their own homes, at no expence, 
 «< by themfelves or their agents, in a manner 
 <« they comprehended J than to truft their 
 
 * *• The Hindoo Law Expounders, or Pundits, are a 
 ** very extraordinary fet of men. They profefs to hold 
 ** little or no property, and depend upon the community 
 •• they live in. Thefe people are beyond the reach of 
 ** bribery, and are reforted to on all occafions v/here 
 •' queftions of property are complicated."— Evidence of 
 "Richard Barwell, Efq.— Seledl Committee's Report, p. 20. 
 6 " Caufes
 
 ( 63 ) 
 
 <f Caufes to perfons they did not know j to be 
 " carried through a Court, the rules of 
 *' which they were totally ignorant of i in a 
 *' foreign language 3 at a vaft diftancej and 
 *f where, whether they gained or loft the fuit, 
 *' they were fure of an heavy expence — He" 
 (the witnefs) " did not mean to infer that they 
 " thought lightly of the Englifh law or its pro- 
 " feffors j but the whole was not adapted to their 
 *' fociety, and was beyond their comprehenfion.'* 
 Examination of Ewan Law, Efqi — Select Com- 
 mittee's Report, p. 17. 
 
 We find, very early in the Hiftory of the 
 Supreme Court, traces of a jealous difpofition 
 towards the Members of thefe Provincial 
 Councils, both as Boards of Revenue, and as 
 Courts of Juftice. The Judges, who derived 
 their authority from the * King of Great Bri- 
 tain, could but ill brook the rank and confe- 
 quence annexed to the ftations of young men, 
 whom they confidered as little better than the 
 clerks of a trading company f , As this jealoufy 
 afterwards ended in a complete demolition of 
 
 * The operation of the King's Letters-patent ; the found- 
 ing phrafes of the King's La'ws ; his Majejiyi's Authority^ 
 &c. occur every where in their Proceedings. 
 
 f One of the Judges openly denied, that " the Com- 
 *' pany's fituation, as Dewan of Bengal, Bahar, and 
 *' Orifla, diiFered in any refpeft from the fituation of a 
 "common trading company." — Vide Memorial of the 
 Court of Direftors to the Secretary of State, 
 
 thefc
 
 ( 64 ) 
 
 thefe Provincial Courts, and the eredion of tlie 
 Chief Juftice's power on their ruins, I muft 
 bfg the attention of the Reader to this part of 
 the Subjed. 
 
 Though the " governing, ordering, and 
 <« management of all the territorial acquifitions 
 *< and revenues" is vefted by the A<^ of Parlia- 
 ment in the Governor and Council, one of the 
 Judges declared, that " this was not exdufivcy 
 <' but fubjecl to the jurifdidion of the King's 
 <« Court, and that it would be equally penal 
 « in the Company, or in thofe adling under 
 " them, to difobey the orders, and mandatory 
 " procefs of the Court, in matters which 
 " merely concern the Revenues, as in any 
 " other matter or thing whatfoever *." 
 
 Accordingly numberlefs writs of Habeas Cor- 
 fusj and other mandatory proceft, were iffued, 
 at different times, to the Councils of Revenue ; 
 and many debtors of the Company, in cuftody 
 for krge fums, difcharged by the Supreme Court. 
 In one of the returns from the Provincial Chief 
 and Council of Dacca to a Habeas Corpus j dating, 
 that the per/on was detained tinder the order of the 
 Provincial Chief and Council of Revenue at 
 Dacca, Mr. Juftice Le Maiftre exclaimed, 
 " Who are the Provincial Chief and Council 
 
 * Memorial of the Court of I)ire<n:ors, No. 3. Appen- 
 dix to the Seleft Committee's Report. 
 
 « of
 
 ( 65 ) 
 
 " of Dacca ? They are no Corporation in the 
 '* eye of the law. — The Chief and Provincial 
 " Council of Dacca is an ideal body. The 
 " return might as well talk of the King of the 
 '* FairieSy becaufe the law knows no fuch 
 *' body *." This is one inftance, among 
 many, of the enlarged minds and liberal views 
 of our Englilh Judges, in the application of 
 Englifli laws to the neceflities and fituation of a 
 new country. — The Chief and Council of Dacca 
 are intruded with the civil adminiftration of a 
 rich, extenfive, and populous province, — yet 
 becaufe they are technically " no Corporation 
 *' in the eye of the law," their ads are to be 
 held out as nugatory, and their perfons ridi- 
 culed in the face of the natives ! 
 
 I Ihall leave the Reader to afcribe this fort of 
 conduffc in the Judges, either to deplorable 
 narrownefs and extreme profefiional bigotry, or 
 to a fettled uniform fyftem to degrade the 
 Company's Servants, and to obtain to them- 
 felves an authority and influence, co-extenfivc 
 with the whole Government of the country. 
 
 After this fmall fample of the conduit 
 of the Judges, in regard to the Provin- 
 cial Councils of Revenue, the Reader will 
 
 • Seleft Committee's Report.--Gcneral Append. No. 9. 
 K hardly
 
 ( 66 ) 
 
 hardly expe6l more moderation when the Pro- 
 vincial Courts of Juftice came into collifion 
 with the Supreme Court. One of thefe Courts 
 was eftablifhed in Calcutta, before the arrival 
 of the Judges. This, however, was foon fuf- 
 pended : Like the Pagan Oracles, on the pro- 
 mulgation of Chriftianity, it was immediately 
 filenced by the Supreme Court } which de- 
 clared, that " no native Court whatever had a 
 " concurrent j'urifdidion within the limits of 
 " Calcutta, and its environs *." — Yet, within 
 a fhort time afterwards, we find the Chief 
 Juftice himfelf flating the ill confequcnces of 
 this very abolition^ produced by his own de- 
 claration. In his letter to the Earl of Roch- 
 ford (then Secretary of State), we have the fol- 
 lowing paflage : " From our want of knowledge 
 " of the language of the country, and from 
 " the mode f prefcribed to us by our Charter, 
 . *' for the proceeding in caufes, they mud take 
 . " up much more time than if they were deter- 
 " mined by thofe who underftand the lan- 
 
 * Sele£l Committee's Report, pag. 7i> 72. 
 
 •j- i. e. Taking written depofitions in every petty 
 caufe. This was the happy Aibltitute for trial by jury. — 
 ' As Englifh Counfel alone plead in the Supreme Court, 
 queftions are put in Englifh, and tranflated into Perfian 
 or Moors ; the anfvyer is then tranflated into Englifh, and 
 the native required to fubfcribe, in his own hand-writing, 
 this Englifh depofition. 
 
 " guage.
 
 ( 6? ) 
 
 *' guage, and might proceed;, as the Country 
 " Courts always have done, fummarily. Were 
 ** the Judges to fit only on caufes between the 
 " Black Inhabitants of Calcutta, they could 
 " not go through with one half of them. It 
 " would be of great eafe to us, and of infinite 
 ** advantage to the inhabitants, if a Provincial 
 ** Vewamtee Adaulut v/as eredted, by his Ma- 
 " jefty's authority, for this town, for the de- 
 *' termination of fuits between the native in- 
 *' habitants of it, where the caufes of adlion 
 *^ fhall not exceed 500 rupees j — if eftablifhed 
 " by his Majefty's authority, they might be 
 
 'f CONTROULED BY THE SuPREME CoURT. I 
 
 ** hardly dare to propofe the fame for the 
 '* chief towns in the provinces at large, 
 " as the J^egiflature did not think fit, in the 
 " laft A,6t of Parliament, to interfere with 
 *' them." Gen. Append. No. 32. 
 
 Here, then, fo early as 1775, we have a 
 plain deliberate confefTion of the real motives 
 which have a6luated the Judges. They had 
 no objeftion it feems to the Provincial Courts, 
 provided they had the controul ; and it was 
 the ftrugglc to obtain this controul indire£lly, 
 which neither Parliament nor the King had 
 given them diredly, that occafioned all thefe 
 violent proceedings in the Patna Cause, 
 againft the Mahomedan Lawyers of the Patna 
 K 2 Court,
 
 ( 68 r 
 
 Court, which ended in the death of the Cau-' 
 zee, and the imprifonnncnt of the Muftees. 
 
 A memorable faying of Mr. Juflice Le 
 Maiftre from the Bench, will throw further 
 light here, who, we are told, could not for- 
 bear exprefling his furprize, " that fo many 
 **'perfons fhould apply for redrefs to the 
 " Country Courts, when they might depend 
 *' ' upon having as good jujiicej or better , in 
 *' the Supreme Court *."-— This was fpoken 
 with the true fpirit of a retailer of Englifh law, 
 who wonders any other Ihop fhould have better 
 cuflom than his own.— But, unfortunately, it 
 Was not till after the death of this zealous Gen- 
 tleman, that the triumph of the Supreme 
 Court, over thefe Country Courts, was com- 
 plete } when unfuccefsful litigants in the latter 
 were inlligated to bring adions in the Supreme 
 Court, againft the Englifh Members of the 
 Council, and the Cawzee and Muftees, the na- 
 tive expounders of the law, who were afTefTors in 
 thofe Courts. This was the fubftance of the 
 celebrated Patna Cause j the decifion of 
 which, by the Supreme Court, I never heard 
 
 • Thefe were his very words. — Evidence of Captain 
 Cowe. — Seleft Committee's Report, p. 6i. — Mr. Le 
 Maiilre appears to have had all the paflion for extending 
 the jurifdiftion of the Court, and all the violence of the 
 Chief Jullice, without his eloquence or abilities. 
 
 any
 
 { 69 ) 
 
 any lawyer in this country mention with ap- 
 probation, nor any man who was not alawyer^ 
 without indignation and difguft I 
 
 The common fenfe of mankind revolts at 
 the abfurdity and injuftice of an Englifh Court» 
 which had by law no appellate jurifdiclion ov^r 
 thofe native Courts, alTuming an indired: ap- 
 peal, by admitting perfonal adions againft the 
 Magiftrates that prefided there j and firft dif- 
 gracefully arrefting the native Judges -, then 
 exacting their proceedings under the Maho- 
 medan law, to the ftrid ftandard of the law of 
 England; and if they did not exadly fit this 
 iron bed of Procrujies (as the Supreme Court 
 wasjuftly called), punifhing them in damages 
 to the amount of the property they decide upon. 
 As fimilar aftions were brought againft the 
 Englifli Members of the Council, the whole 
 Settlement took the alarm : they forefaw that; 
 no integrity, no uprightnefs of decifion could 
 form a proted:ion, where any part of their pro- 
 ceedings, which an Englifh attorney could call 
 irregular, was to make them refponfible in 
 their private fortunes for their public ads. 
 
 Yet it mufl: be owned, the reafonings of the 
 Judges are ingenious and plaufible. " All 
 " a6ls of authority, not warranted by law, arc 
 " illegal. — Satisfy us (fays the Chief Juftice) 
 
 «' that
 
 ( 7° ) 
 
 " that you proceed legally, and we fhall ad- 
 " mit your defence.'* Under this colourable 
 argument, the Supreme Court proceeds in this 
 indire<51: mode of appeal. The fallacy lies in 
 the word legal. The Supreme Court calls the 
 proceedings of a Mahomedan Court legal, if 
 they fquare with the maxims of Englifli law ; 
 if not, they are illegal, and punifhable in large 
 damages. In the a6lion againft the Cauzes and 
 MufteeSy we find Mr. Juftice Chambers gravely 
 fuggefting to the Chief Juftice a cafe from 
 Brooke's Abridgment*, to fhew that the 
 Mahomedan lawyers had afted againft a tech- 
 nical rule of Englifh law, in pronouncing upon 
 the merits of a caufe which the Gentlemen of 
 the Council had delegated to them. The 
 Council at Patna, it was faid, ought to have 
 tried the caufe themfelves, and only have con- 
 fulted the Cauzee and Mufcees on points of 
 law. Here they delegated both the law and 
 facls (that is, the whole caufe f), which they 
 themfelves were delegated by the Governor 
 
 * ]Brooke's Abridgment, publifhcd about the time of 
 queen Elizabeth. 
 
 f It turned upon the forgery of a Perfian deed. This, 
 though a queftion of faft, turns fo much upon a know- 
 ledge of the language, and the internal marks of authen» 
 ticity or forgery, that the Council may be eafily defended 
 for referring it to the Mahomedan lawyers. 
 
 and
 
 ( 7' ) 
 
 and Council to try. Delegatus nonpvtejl delegare 
 poteftatem *. 
 
 Suppofing, however, that the Council pro- 
 ceeded irregularly, yet why punilh the Cauzec 
 and Muftces for afting under an order of re- 
 ference which had been criminal in them to 
 have declined ! What a precious dilemma 
 were thefe Mahomedans reduced to ! Had they 
 rcfufed to try the caufe, they would have been 
 fined by the Council at Patna. Do they ac- 
 cept the reference ? They are punifhed by the 
 Supreme Court at Calcutta ! 
 
 Jncidit in Scyllam qui vuU vitare Cbaryhdin. 
 
 By one or two of thefe decifions, the Supreme 
 Court had well-nigh filenced all the rival Judi- 
 catures in the interior parts of the provinces. 
 I confider its jurifdi<5lion, therefore, as in its 
 zenith at this period, which was about the be- 
 
 • The Chief J-uftice cited Rolle's Abridgment.—" Juf- 
 " tices in Eyre could not make a Deputy by common 
 *' Law, but now they may by Statute — So may fome 
 •* Stewards of Manors ; but then, fays the Chief Juftice, 
 *' that is by prefcriptlon."— Did he expeft the Caiuzee 
 and Mu/ieet to fhew a prefcriptive right, or an Englifti 
 Adl of Parliament, to warrant their proceedings ! In faft, 
 the maxim, that ** a judicial power cannot be delegated," 
 and the technical jargon of delegatus non poteji delegare, is 
 not univerfal even in the law of England, as we fee from 
 the Chief Juftice's own quotations. 
 
 4 ginning
 
 (. 7^ ) 
 
 ginning of the year 1779. The natives, who 
 were before amenable to the Country Courts, 
 might now be expedled to refort to the Su- 
 preme Court in great numbers ; but the 
 diftance from Calcutta, the immenfe expence, 
 their ignorance of Englifh laws, its repugnance 
 to their own ufages, and, above all, their ter- 
 ror at the power of a Court which imprifoned 
 their native Judges, contributed to prevent 
 the natural Confequences of the Patna decifion 
 from operating. — To dam up the ftream of, 
 juftice in one channel, is the likelieft way to 
 make it flow more rapidly in another; but as 
 " the reverfe of wrong" is not always " right," 
 fo the deflrudtion of the Country Courts does 
 not appear to have increafed the bufinefs of the 
 Supreme Court, in that degree that might have 
 been expected. — The natives remained for 
 fome time in a ftate of -anarchy and confufion -, 
 without law *, and without redrefs ! 
 
 The Chief Juftice perceived he had gone 
 too far. The odium and unpopularity of the 
 judgment in the Patna caufe was too great; 
 and accordingly we find, that, at the latter 
 end of the fame year, when an a6lion was 
 brought in the Supreme Court, by a native 
 
 * Vide Minute of the Governor General, 9th March 
 
 1780. 
 
 againft
 
 ( 73 ) 
 
 againft the Provincial Council of Moorfhedebad, 
 who conceived himfelf injured by fome of their 
 public ad:s, he refufed to inquire into the re- 
 gularity or irregularity of their proceedings, 
 and difnaifTed the native with cofls *. This in 
 fonfie mealure reftored the legal competency of 
 the Councils, but it did not reftore the confi- 
 dence of the people. — As the Gentlemen of the 
 Patna Council had avowed their determination 
 to appeal from the former decifion to the King 
 in Council, the Chief Juftice began to be a 
 little more cautious and temperate. 
 
 It will not be fuppofed, that the proceed- 
 ings of the Court, in the Patna Caufe, pafled 
 with the perfedl acquiefcence of the Governor 
 and Council : on the contrary, they extended 
 their protection to the Cauzee and Muftees in 
 every poITible way that the law allowed. They 
 bailed them pending the fuit j they were at the 
 whole cxpence of defending the afbion j and 
 though they did not think themfeives authorifed 
 
 * This cafe was fo replete with Irregularity, on the 
 part of the Provincial Council, that the Law-officers of 
 the Company were unwilling to defend it. — Vide Cafe of 
 Gora Chund Dutt V. Ho/ea and others. Opinion of the 
 Advocate- General. Selecl Committee's Report, No. 4. 
 General Appendix. 
 
 L to
 
 ( 74 ) 
 
 to pay the heavy* damages afTefled by the Court, 
 they granted a liberal allowance to the furviv- 
 ing fufferers in priibn, and fettled a penfion on 
 the widow of the Cauzee f who died in his way 
 to the Calcutta gaol. 
 
 From this time, we find nothing very inter- 
 efting in the hiftory of the Supreme Court till 
 06lober 1779, when the attempt to execute 
 the procefs of the Court on one of the heredi- 
 tary Zemindars of Bengal excited a new com- 
 motion, and kindled a frelli flame, in which 
 all the lefTer fires were extinguiflied or loll. 
 
 I have before mentioned that the Zemin- 
 dars were a fpecies of tributary Lords, ox 
 great landholders, who were anfvverable to the 
 
 * The property which they decided cpon, as Judges of 
 the Patna Court, was made the meafure of damages afl'efled 
 againft them, as individuals, amounting to the fum of 
 30,000!. flerling, no part of which property ever came to 
 their hands. As thefe unfortunate men had no other in- 
 come but their offices, the fentence was equivalent to per- 
 petual imprifonment.— Such are the benefits the natives 
 reap from trials without a jury ! 
 
 f This man was much refpefted and beloved at Patna. 
 He was appointed to the office of Cauzee in 1 767 ; a time 
 when Sir Elijah Impey as little expefted to be Chief Jullice 
 of Bengal, as the Cauzee did to be Chief Jullice of Eng- 
 land. 
 
 Company
 
 { 75 ) 
 
 Company for the revenues or rents of their 
 diftridls j and that, except the fingle circum- 
 ftance of remitting their revenues * to the 
 Company, they had no fort of conneflion with 
 the Englifli government, language, or laws. 
 
 No decifion had yetpofitively declared them 
 amenable to the Supreme Court -, but I believe 
 a common Ejedment had once been brought, 
 to obtain pofleflion of an antient Zemindary, 
 which was wifely compromifed by the Gover- 
 nor before any great alarm was excited. Ac- 
 tions of other kinds had likewife been brought ; 
 but it was generally for the purpofe of fqueez- 
 ing a little money from the Zemindars, and 
 then they were releafed before the queftion was 
 tried. 
 
 This queftion, however, was ferioufly in- 
 tended to be litigated, in the cafe of the Rajah 
 of Cq^jurah-f. A writ, for the large fum of 
 
 * I obferved before, that one of thefe great Zemin- 
 daries pays to the Company upwards of 220,000 1. a year 
 (that is nearly five times as much as the whole kingdom 
 of Scotland pays towards the land-tax of Great Britain). 
 It is 13,000 fquare miles in extent, and is held by a 
 Prlncefs, in her own right, called the Ranny of Raja- 
 fhahi. 
 
 f Vide a minute detail of this difpute in the Seleft 
 Committee's Report, and Coflijurah Appendix. 
 
 L 2 3,000,000
 
 ( 76 ) 
 
 3,000,000 of rupees *, was actually ifliied out 
 to arreft him at his palace, timely notice of 
 which was given f to the Governor and Coun- 
 cil, and application made to proteft the Ze- 
 mindar, who had abfconded to avoid the dif- 
 grace of an arreft. Being clearly of opinion 
 that the Zemindar was not within the jurifdic- 
 tion, the Governor and Council gave him no- 
 tice to pay no regard to the writ. — The Court 
 proceeded to enforce their procefs, by a writ of 
 fequeftration J upon which the natives, who 
 are devotedly attached to their Zemindars, 
 rofe in his defence, and infuUed the Sheriff's 
 Officers. — A re-inforcement was held necef- 
 fary by the Sheriff j and 86 men, armed 
 with bludgeons, cutlafTes, muflcets, &c. re- 
 paired by his order to Coflijurah, entered the 
 Rajah's houfe or palace, broke open the wo- 
 men's apartments, which are ever held facred 
 in that country, profaned his temple, and 
 thruft the image of his worfhip into a bafker, 
 and depofited it, with mixed lumber, under 
 the feal of the Court J. 
 
 JjFhe 
 
 • 330,000!. fterling. 
 
 f By the Company's ColIei!lor at Midnapore. 
 
 X " Such 3.&S are accounted inllance? of the grofTefl: vi- 
 '* olaticn and facrilege, according to the principles and 
 *' perfuafions of the inhabitants of thofe province?, and 
 " have been never known to have been authorifed, with 
 
 " impunity,
 
 ( 77 ) 
 
 The Governor and Council now thought it 
 incumbent upon them to interfere, and put. a 
 Hop to thofe violences, by fending a military 
 force to apprehend the Sheriff's people -, and 
 the whole 86 men were accordingly obliged to 
 capitulate, and were conduced by the vidori- 
 ous troops to Calcutta, as prifoners of war. 
 
 What was the conduft of Sir Elijah 
 Impey and his aflbciates on this occafion ? — 
 Enraged at the refiftance fhewn to their writ, 
 and the authority of the Court, we are told 
 they immediately declared their refolution of 
 inflifling exemplary punifliment on all who 
 were fufpected of being concerned in it. ** With 
 " an undiftinguifhing vengeance *" (fay the 
 Governor and Council) " they ordered attach- 
 " ments to iffue againft the military Officer, 
 *' whofe duty it was to execute the orders of 
 " his fuperiors -, on Mr. Naylor, the Com- 
 
 ** impunity, by the moft defpotic of their Mahomedan 
 " Rulers.' — Petition of the Governor and Council to 
 
 Parliament. 
 
 * Thefe are ftrong expreffions.— A refpeclable Senator 
 (a Lawyer) obferved, that it was indecent language; a 
 Court of Juftice, he faid, was incapable of being aftu- 
 ated with fentiments of vengeance. This is true as a 
 d'Ulum of law, but it is not true as a matter of faft. A 
 Court of Juftice cannot feel perfonal refentment ; but I 
 believe the Reader will be of opinion that its Judges can. 
 
 " pany's
 
 ( 78 ) 
 
 " pany's Attorney ; and on Mr. Svvainfton, a 
 '« Servant of the Company, whofe only offence 
 «« feenris to have been an unfortunate curiofity, 
 " which led him to be a fpeclator of what the 
 ** Court termed a refcue *." It appears to 
 have been thought too bold an efiort to attack 
 the Governor and Council at once -, the Judges 
 were therefore content, for the prefenr, to hurl 
 the thunders of the law upon the Inftruments 
 or Agents they had employed. This was an- 
 fwering the fame end j and knowing that the 
 Council could no more aft without agents, 
 than a man can run without his feet, or fight 
 without hands, they were refolved to deter 
 others, by the feverity of their proceedings, 
 from aflifting upon the like occaficns. 
 
 As Mr. Naylcr was an attorney of the Court, 
 he feems naturally to have fallen within the fcope 
 of their vengeance i but the attempt to punifli 
 an Officer of the army, for obeying a military- 
 command, was indeed a wild and frantic at- 
 tempt, efpecially confidering the reprefenta- 
 tions the Chief Juftice himfelf makes of the 
 contumacious fpirit of the Company's army in 
 Bengal, in that mod malignant letter of his to 
 the Secretary of State, in March 1779, on the 
 
 * Petition to Parliament. 
 
 conduft
 
 ( 79 ) 
 
 condu6l and difpofition of the Britifh Sub- 
 jecls. Sele6l Comm. Rep. 
 
 Mr. Naylor was thrown into prifon, and 
 ordered to anfwer to Interrogatories for a 
 contempt of the Court. This unfortunate 
 man was at that time in an infirm (late of 
 health j and the agitation of his mind, the un- 
 healthy fituation of the gaol, and the terrors 
 of the Court concurring, proved fatal to his 
 conftitution * ; he died foon after his releafe. 
 
 The 
 
 • Mr. Naylor appears to have been a young man of 
 abilities. He juHly obfcrves, upon this mode of proceed- 
 ing upon interrogatories, that " if there exifts a cafe, in 
 •' which the proceedings of a Court of Juftice (hould be 
 *' peculiarly temperate and forbearing, it is in that of an 
 *' Attachment for a fuppofed contempt of its authority ; as 
 ** by one of thofe dcfefts, which are common to all infti- 
 *' tutions, in that procefs the meafure of punifhment re- 
 '* mains in thofe hands, from which a difpenfation of it, 
 •* wholly difpaffionate, can hardly be expedled : it par- 
 " takes, befides, too ftrongly of that exercife of inqui- 
 *' fitional powers, which has been long baniftied from our 
 *' Courts ; and though the dread of innovation has ftill left 
 *' this mark of delpotifm upon our law, the Judges of later 
 ** times liave exercifed it with lenity and caution." Se- 
 left Committee's Report, Coflijurah Appendix, No. 21. 
 
 After thefe juft and fpirited fentiments, it is hardly ne- 
 cefTary to fubjoin the authority of Lord Coke, in his ce- 
 lebrated comment upon the following lines of Virgil : 
 
 *' Gnoflius haec Rhadamanthus habet duriflima rcgna 
 ** Caitigatque, auditque dolos, fubigitquc, fatcri." 
 
 " Firft
 
 ( 8o ) 
 
 —The Chief Juftice intimated, that, in a re- 
 cent cafe * of contempt in England, a man 
 had been confined two years, for refufing to 
 anfwer to interrogatories. — Such a length of 
 confinement, the Governor and Council ob- 
 ferve, or even a durance of two months in that 
 unwholefome climate, and in the foul air of a 
 Calcutta gaol, would be equal to a direct fen- 
 tence of death f . 
 
 The Chief Juftice, indeed, " appears to 
 " have loji all temper % on this occafion.'^ In 
 excufe for him, it may be faid, that this was 
 the only way in which he could vindicate the 
 authority of the Court and the laws. If this 
 were the only way, he certainly wanted not fpi- 
 
 *' Firft, fayshe,hepuniriieth,and thenheheareth, andlaflly 
 *' compelleth to confefs ; and makes and marrs laws at his 
 " pleafiire." Thefe, he obferves in the quaint language 
 of his time, are " the damnable and damned proceedings 
 *' of hell." — Lord Coke was a better Lawyer than a Cri- 
 tic. Vide thfe Commentators on this paflage of Virgil. 
 
 * Alluding, it is fuppofed, to the cafe of Mr. Bingley, 
 who faid he ^fjould never anfvoer ttnie/s he ivas put to the tor^ 
 tare. The Court of King's Bench at lafl: let him go with- 
 out anfwering. 
 
 f Selefl Committee's Report, Coffijurah Appendix, 
 No. 23. 
 
 \ The expreffion of Mr. Rous ({landing Council to the 
 Company), in his Report to the Court of Dircdors. Se- 
 left Committee's Report, General Appendix. 
 
 fit
 
 ( 8r ) 
 
 rit to tread in it ; for we find him, in the fol- 
 lowing declaration, throwing defiance at the 
 Governor and Council, " Whatever may be 
 " their reafons" (fays he), " and however ad- 
 ** vifed to carry them into execution, I take 
 ** this firft opportunity to declare, that no ter- 
 ** ror of power fhall in the leafl intimidate me, 
 " from granting attachments againft any perfons 
 " who fhall difobey the procefs of the Court. It 
 " is in the power of the Governor General 
 ** and Council to prevent their execution i 
 ** but I mean to fling the utmoft refponfibility 
 ** upon thofe who fupport thefe ideas. I will 
 ** not fhrink from my purpofe. 1 have no au- 
 ** thority to command troops j but I can put 
 ** thofe who do command them into a fitua- 
 " tion to anfwer to his Majefty for the con- 
 " tempt of his Authority *.*' And in another 
 ftage of the fame proceeding, he declares, he 
 never will fubmit to have his power controuled 
 by any authority in that country, and much 
 lefs by the Governor and Council. *' We are 
 ** no politicians" (fays he) ; " I have feldom 
 *' known lawyers good ones,'* [Some of his 
 friends, high in the law, in England, will no 
 doubt thank him for this intimation]. " We 
 " have but one line to direft our conduct by ; 
 " and that is the Charter." And he then 
 
 • Seled Committee's Report, 
 
 M briefly
 
 ( 82 ) 
 
 briefly infifts on the qualities of an upright 
 and independent Judge, and concludes with 
 'the following fpirited (though rather hacknied) 
 quotation from Horace. 
 
 " Jufl:um et tenacem propofiti virum, 
 " Non civium ardor prava jubentium, 
 .^ " Non vultus inftantis tyranni * 
 " Mente quatit folida. 
 
 As it does not appear that the Chief Juftice 
 favoured his hearers, whether Englilh, Maho- 
 medan, or Gehtoo, with a tranflation of thefe 
 well quoted lines from Horace, I fhall fupply 
 this defed, in part, by prefenting the Englijb 
 Reader with Mr. Addifon's fpirited verfion. 
 
 The man refolv'd, and fleady to his truft. 
 Inflexible to ill, and obftinately jull. 
 May the rude rabble's infblence defpife. 
 Their fenfelefs clamours and tumultuous cries ! 
 The tyrant's fiercenefs he beguiles. 
 And the fl:ern brow and the harfh voice defies 
 And with fuperior greatnefs fmiles f. 
 
 It 
 
 ■1 
 
 , * Meaning the Governor General. Qu. ? 
 
 - f Comparing the paflage, in which the Chief Juftice 
 feys, " I will not fhrink from my purpofe ; I have no au- 
 ** thority to command troops ; but I can put thofe who 
 *' do command them into a fituation, &c." with the pre- 
 ceding
 
 ( 83 ) 
 
 It is impoffible not to admire the fpirit and 
 magnanimity of this great Chief Juftice, or to 
 refrain from expreffing one's regret that he did 
 not live in thofe early times, when the queftion 
 of Ship-money, and other great political 
 queftions were agitated in this country, and in 
 which a portion of his independent fpirit, upon 
 the Englifli Bench, would have been more 
 ufeful (and more applauded too !) than it has 
 probably been at Calcutta. 
 
 In this ftate of collifion remained the two 
 great co-ordinate powers of our Government 
 in the Eaft. Mr. Haftings at the head of 
 the Council, and Sir Elijah Impey at the 
 head of the Court, like the two Roman 
 Chiefs, one difdaining any equal, and the 
 other any fuperior. — Nor were the inhabit- 
 ants, native and Britifh, uninterefted * fpec- 
 
 ceding lines of Horace, perhaps the following may be 
 thought a clofer tranflation than even Mr. Addifon's. 
 
 The J-DGE refolv'd, and fteady to his caufe. 
 
 Who wields the thunder of the Britifh laws ; 
 
 Unlhaken hears the fufFering Indian's cries. 
 
 Mocks th* embattled troops, and H-st — gs' threats defies. 
 
 * See a lively account of the general difguft, excited by 
 the condud of the Judges, in a late pamphlet, intitled, 
 ** An Extract of an Original Letter from Calcutta." 
 
 M 2 tators
 
 ( 84 ) 
 
 tators of the conteft : — Their pafTions were 
 warmly engaged ; while the Chief Juftice, on 
 the one hand, with his Latin and his law, his 
 attachments and his fequeftrations ; and the 
 Governor and Council, on the other, with the 
 fword half unfheathed, were marflialled in 
 hollile array. 
 
 In March 1780, each fide tranfmitted 
 ftrong reprefentations to England, of the 
 rife and progrefs of thefe difputes : the Chief 
 Juftice to the Secretary of State j the Go- 
 vernor and Council to the Court of Direc- 
 tors* . The Governor and Council inclofed a 
 petition to Parliament, praying a Bill of In- 
 demnity, for refilling, by open force, the or- 
 dinary courfe of juftice (no light offence in the 
 eye of the law, and perhaps amounting in 
 llriclnefs to high treafon) i and Sir Elijah 
 Impey, on the other hand, calling for repara- 
 tion at the hands of his Majefty's Minifters, 
 for the violence offered to the King's Laws, 
 Authority, and Government ; and at the fame 
 time tranfmitting the Memorial (already al- 
 luded to) from the attornies of the Supreme 
 Court, reprefenting the alarming decline of 
 
 * Like feparate ftreams, each recurring to ihe fountain 
 of its authority. 
 
 bufinefs
 
 ( 85 ) 
 
 biifinefs in confequence of the proceedings of 
 the Council. 
 
 It does not appear that either party had can- 
 dour enough to communicate their charges to 
 each other, previous to tranfmitting them to 
 England. The difpatches of both, however, 
 appear printed in the Select Committee's Re- 
 port ; and the Reader, if he chufes to compare 
 them, will find himfelf not a little daggered 
 by the boldnefs of affertion, and the impofing 
 ftrength of argument on each fide. I do not 
 fay he will be " at a lofs" (as Hobbes fiid of 
 the controverfy between Salmalius and Milton) 
 f* to decide whole language * is befl:, and 
 
 " whole 
 
 • I believe, in point of elegance of language, if this 
 were a jnatter of any importance, the fcale turns in favour 
 of the Governor and Council ; though the latter (remem- 
 bering whom they write to) do not deal quite fo much in 
 Latin as the Chief Juftice. — The following paiTage, among 
 many, in the Letters of the Governor and Council on this 
 affair, appears to me to be written in a manly and vigorous 
 ftylc : — '• We have to lament, that in few, if any inftances, 
 the Judges have appeared folicitous to adapt the pradlice 
 to the place ; or feem aware of the confideration, that, 
 though under an ancient, well-eftablifhed conftitution, 
 which has advanced to perfedion through the wifdom and 
 experience of ages, the laws will execute themfelves, and 
 the ftream of public jullice iind its channel, yet in a fitu- 
 ation fuch as they aft in, cafes muft often pccur, to which, 
 
 if
 
 ( 86 ) 
 
 " whofe arguments are worfl j": — nor perhaps 
 will it be quite fair to believe all the ill they 
 fay of each other, or to reject all the handfome 
 things they fay of theaifelves. 
 
 By what ftrange revolution it happened, that 
 all thefe ftrifes and animofities were fuddenly 
 compofed at Calcutta, and, whilft the fubjeft 
 was under the anxious deliberation of Par- 
 liament, an union was in the mean time 
 effeded, more extraordinary than the former 
 rupture, now remains to be explained. 
 
 We have already feen the Country Courts of 
 Judicature proflrate at the feet of the Supreme 
 Court i we have feen the Officers of Govern- 
 ment embarralTed in the colledions of the Re- 
 venue j the Zemindars attempted to be drawn 
 
 if they attempt to apply the ftrift provifions of a foreign 
 law, no force or management can regulate its courfe. 
 
 *' We are not ignorant upon what unequal terms we en- 
 counter, in this matter, the fuperior learning of the 
 Judges. Guided, however, in common with them, by 
 the light of reafon, — and inilruiSted, in fome degree, by 
 the very contefts in which we have been occafionally en- 
 gaged with the Court ; with all humility," &c. &c. Seleil 
 Committee's Report, General Appendix. 
 
 within
 
 ( 87 ) 
 
 within the pale of the Britifli laws ; the Attorr 
 ney to the Company imprifoned for refifting 
 this attempt; and threats of fimilar treatment 
 denounced againft all perfons who might obey 
 the orders of the Governor and Council in the 
 like predicament. 
 
 Befides the proceedings againft Mr. Naylor, 
 we are informed, by the Governor and Coun- 
 cil, that the perfon who fued out the original; 
 procefs againft the Rajah of Coflijurah, was 
 inftigated (as they firmly believe by the Court 
 itfelf ) to bring an acflion againft the Governor 
 and Council, whofe refiftance had prevented 
 his proceeding in a due courfe of law. 
 
 The Governor and Council, on being ferved 
 with the fummons by the names of Warren 
 Haftings, Edward Wheler, &c. (that is to 
 fay, as individuals), and conceiving it to 
 be for a£ls done in their public capacity, 
 which, under the Aft of Parliament, they ap- 
 prehended were not cognizable by the Su- 
 preme Court, refufed to appear thereto, or to 
 defend the fuiti and further declared, by a 
 folemn Memorial, which they ordered to be 
 delivered in full Court, that they would not 
 be acceflbry, by any act or admiflion of their 
 own, to that ftate of degradation to which the 
 
 Supreme 
 7
 
 ( 88 ) 
 
 Supreme Court of Judicature endeavoured to 
 reduce the Government *. 
 
 On 
 
 • This Memorial contains the following paragraph : 
 ** Suppofing" (fay the Governor and Council) " their 
 '* prefent claim to the exemption they contend for, fliould 
 *' appear to the Court not to be founded in ftrift legal 
 *' right, ftill the Governor General and Council think 
 ** themfelves entitled to expeft, from the prudence and 
 ** moderation of the Judges, and from the Intereft they 
 *' hold in the general welfare and fecurity of the Britifh 
 ** Empire in India, that they will not permit fuch a quef ■ 
 *' tion to be agitated here, but that they will agree to 
 " fufpend all proceedings whatfoever that may have rela- 
 " tion to It, and fuifer the general quellion to be referred 
 ** home, as the Governor General and Council are de- 
 «« firous it fhould be, to the determination of a higher Ju- 
 ** rifdiftion, or until the fenfe of the Legiflature can be 
 *< taken upon it ; and the Governor General and Council 
 ** declare themfelves ready to accede to any mode which 
 *' the Judges may think fit to propofe, whether for the 
 " immediate accommodation of the prefent unfortunate 
 •♦ difference, or for a reference of it to Parliament, pro- 
 «' vided that, in the mean time, all proceedings in this 
 " matter be fufpended In the Supreme Court." Sele(5l 
 Committee's Report, Coffijurah Appendix, No. 24. 
 
 One would naturally think. In this cold climate (where 
 our animal fpirits are not fubllmated by fo near an ap^ 
 proach to the fun), that this compromife might have been 
 accepted by the Supreme Court, without any lofs of Its 
 dignity. — No fuch thing ! for we find the Chief Juftice, 
 in his letter to Lord Weymouth, takes notice of this Me- 
 morial In the following fingular terms : — " Yefterday the 
 «' junior Council for the Company (for Mr. Newman, the 
 
 *• fenior.
 
 ( 89 ) 
 
 On this unexampled footing refted the inter- 
 nal_ affairs of Bengal, in the Spring of the 
 
 year 
 
 " fenior, having difapproved of the proceeding of the 
 
 ** Governor General and Council at Coffijurah, had 
 
 *• refufed to aft as their Advocate in any part of the 
 
 *' bufinefs), offered to the Court a paper, containing cer- 
 
 *' tain Refolutions of the Governor General and Council. 
 
 *' and moved that it fhould be read." 
 
 ** On its being read, the Court, confidering it to be a 
 ** clear contempt of his Majefty's Law and of his Court, or- 
 ** dered it to be recorded ; but, as it was in the cafe of 
 *' the Governor General and Council, did no other a£l in 
 *' confequence ofit !" Seleft Committee's Report, Cof- 
 fijurah Appendix, No. 5. 
 
 What raifes our furprize here, is, that this very fame 
 Chief Juflice, in a variance of infinitely lefs confequence, 
 that happened in the year 1775, ufes the moll moderate 
 and healing expreflions. Addreffing himfelf by letter to 
 the Court of Diredtors, he fays, " I fear greater alarm 
 ** may be taken in England, from theapprehenftonof the 
 " confequences of a variance between the Governor Ge- 
 *' neral and Council and the Court of Jullice, than from 
 *' the original matter of complaint, which in faft hath 
 *' nothing of importance in it. I am fo well convinced of 
 *' the detriment which a variance would be of to the in- 
 ** tereftofthe nation and the Company, that I will un- 
 *' deruke that the Judges fhall now, and will upon all 
 ** occafions, aft with the greateft moderation, and make 
 *' fuch irecefTary and reafonable concefEons, at the fame 
 " time enforcing the authority of the Court, to the Go- 
 '• vernor General and Council, that the State fhall nei- 
 "- ther incur fcandal nor prejudice." Geaeral Appendix, 
 No. 5. 
 
 N Such
 
 ( 9° ) 
 
 year 17S0. The fafety of the country ftood 
 " trembling on the edge of law," while the 
 fword of State and the Iword of Juftice were 
 every moment ready to clafh. — In the mean 
 time it was uncertain whether any, and what 
 attention, would be paid to the fubjed in Eng- 
 land. — Three long years of diflenfion and re- 
 ciprocal accufation had paiTed, fince the Court 
 of Diredors folicited the interference of Go- 
 vernment to fettle thefe difputes. No Bill had 
 been brought in, no conciliatory meafures pro- 
 pofed. 
 
 It appears that the Chief JuHice, front the 
 ^hole tenor of his conduct on the Bench, as 
 well as of his letters to Europe, thought him- 
 felf very fecure of fupport at home ; and, in- 
 deed, as the Court of Judicature had been fent 
 Out with the aflent of a great majority of both 
 Houfcs of Parliament, there feems to have 
 been fome grounds for his confidence. In his 
 difputes with the Britifh fubje6ls, he fufFered 
 this confidence (to give it the bed name) fo far 
 
 Such is the language of Sir Elijah Impey in the year 
 '775' when he was yet young in office, and new to the 
 Settlement. The variance of 1775 was between the Court 
 and the majority of the CQuncilonly. In 1780, when the 
 diffenfion is between the Court and an unanimous Council, 
 we find the preceding overture of the Governor and Coun- 
 cil treated as a clear contempt of the Court ! 
 
 to
 
 ( 9« ) 
 
 to rife above all decency and propriety, as to 
 tell them publicly that " he Ihould take care 
 ** to tranlmit his own accounts of the Court's 
 " proceedings to England, and fhould make 
 " applications where they would be attended 
 " to j" and in a private letter he addrelfed 
 to Mr. Haflings (for whom he always had 
 a real friendfhip), foon after the affair at Cofli- 
 jurah, we have the following expreffions : 
 " When I fat down to write my letters for 
 *^ Europe, I found myfelf fo embarrafTed that 
 " I refolved not to proceed till I had another 
 " opportunity of converfing with you on the 
 " fubjed of CofTiJurah." — And in another 
 part he fays, " Indeed, my friend, the em- 
 *' barrafTment you have laid me under is the 
 *^ greateft I have ever felt, and believe me I 
 " fliould feel none were you not my friend *." 
 — The import is certain ; he imagined the 
 Miniftry would infallibly fupport him, and he 
 was only afraid of implicating Mr. Haftings in 
 the veno;eance he was callino- down on the reft 
 of his opponents. This is the moft favourable 
 point of view in which I have been able to 
 fee Sir Elijah Impey's charafterj and as pri- 
 vate friendfliip is in every ftate of life a vir- 
 tue we ought to rcfped, I Ihall not detrad 
 from its merit. 
 
 * General Appendix, No. 33. 
 
 N 2 Ic
 
 ( 9^ ) 
 
 It is a matter of doubt (not Indeed of any 
 great importance), whether the intercourfe of 
 private life was ever fufpended between thefe 
 two Gentlemen during the height of their pub- 
 lic diflenfions ; though it is certain the whole 
 proceedings in the Coflijurah difpute were con- 
 duced with a perfect unanimity at the Coun- 
 cil-board i " an unanimity'''' (they obferve) 
 *^ not very ufual with them j" and Mr. Francis 
 aflerts, that the Governor often exprefled the 
 higheft difgufl: and diffatisfadlion at the violent 
 proceedings of the Supreme Court. 
 
 However, the perfonal friendfliip between 
 the Chief Juftice and the Governor was always 
 known j for amidft the fulminations of Sir Eli- 
 jah Impey*s eloquence in Mr. Naylor's affair, 
 the Chief Juftice, fpeaking in open Court of 
 fome converfations he had with the Governor, 
 fays, " I told him, the extremities I fliould be 
 " driven to, if it became neceffary, would be 
 *' moft painful to me. — Gentlemen may fmile, 
 " — and think 1 was not in earneft : — but I told 
 " him true j and no one has undergone more 
 " pain than I have, now matters have been 
 *' driven to extremity." 
 
 I confefsl fhould have been one of the Gen- 
 tlemen who were " guilty of fmiling," had I 
 been prefent in Court •, little fufpecting, how- 
 ever, that a compromife was fo near at hand 
 between thefe contending Chiefs as it really 
 
 was :
 
 ( 93 ) 
 
 was : — but it fcems the old adage is ftill true, 
 Afnantium ira, amoris redintegratio. The Chief 
 Juftice might, for aught 1 know, have had it 
 in contemplation, at that very moment, to 
 accept the office of Judge of the Sudder 
 Adaulut, which was foon afterwards conferred 
 upon him, by the Governor and Council, with 
 a falary of 8000 1. a year. 
 
 I Ihall endeavour to explain the nature of 
 this extraordinary appointment as concifely as 
 poflible, together with the real and ollenfible 
 caufes of beftowing it upon the Chief Juftice, 
 
 For this purpofe it will be necefTary to, refer 
 to, what has been already ftated, of the Con- 
 ftitution of the Provincial Courts of Judica- 
 ture. I took notice that an appeal lay from 
 their decifions to the Governor and Council at 
 Calcutta * J who, fitting in the exercife of this 
 appellate Jurifdiftion, were called the Court of 
 Sudder Adaulut (or fuperior Court of Juftice), 
 and had a fuperintending Power to make rules 
 and orders for the good government of all the 
 inferior Courts. After the decifion of the Patna 
 Cause, the Governor and Council, either 
 ftruck with the loud cenfures the Chief Juftice 
 fo liberally beftowed on the informality, and 
 
 * In the fame manner as an appeal to the King in 
 Council is referved in the different Conftitutions of our 
 Plantation Governments. 
 
 want
 
 ( 94 ) ' 
 
 want of regularity in the proceedings of thefe 
 Provincial Courts, as well as with his ftrong in- 
 finuations of their corruption and abufe *, or, 
 more probably, defirous to reftore confidence 
 to thofc who prefided, and to the fuitors vv^ho 
 reforted thither for redrefs f, framed a new 
 fet of Regulations ; in which the line be- 
 tween the Member of the Council who pre- 
 Uded in the adminiftration of juftice, and the 
 reft of the Council who formed the Board of 
 Revenue, was endeavoured to be more clearly 
 drawn than had before been done. This, like 
 all other innovations, was attended with fome 
 difficulties. The different parts of the new 
 fyftem did not perfectly harmonize; and nearly 
 the fame difputes, on a fmaller fcale, broke 
 out between them, as exifted in the larger fyf- 
 
 * In the adion againft the unfortunate Cauzee and 
 Muftees, the Seleft Committee take notice, that " there 
 *' was no proof whatever of peculation or corruption ;" 
 tot the charges were confined " to their having aded 
 ** without a fufficient legal authority ; to irregularity in 
 *' their proceedings, to their having pronounced an erro- 
 " neous judgment, &c." Seleft Committte's Report, 
 pao-e 8. If the Cauzee had fat in judgment upon the 
 Chief Jujiice (inflead of the latter fitting in judgment on 
 the Cauzee), we may fuppofe it would not have been dif- 
 ficult to have found flaws in lis proceedings. — Who drew 
 tie Lion njanquipnd ? 
 
 + The native fuing for his rights, and taking poffenion 
 of his property, under a decree of thofe Courts, is after- 
 wards fued in the Supreme Court, and deemed an accef- 
 fary to the trefpafs, if he is unable to defend the regularity 
 of the Court's proceedings. 
 
 tern
 
 ( 95 ) 
 
 tern at Calcutta, between the Supreme Court 
 and the Governor and Council. If thefe dif- 
 putes had come to any head, there was every 
 reafon to exped: the Judges of the Supreme 
 Court would have ftepped in, to increafe, ra- 
 ther than to prevent, the confufion. 
 
 The Court of Sudder Adaulut, or Court 
 of Appeal, however juft and necelTary it 
 might appear in theory, was jn fad never 
 called into life and energy fince the arrival of 
 the new Judges at Calcutta. The fear of a 
 Collifion between the two Jurifdidlions had hi- 
 therto occafioned its fufpenfion or inaftion. 
 In 1775, a correfpondence refpeding this very 
 Court pafTed between the Council and the 
 Judges, in which the latter admit the right of 
 the .Governor and Council to receive appeals; 
 and that their decrees were not liable to be ex- 
 amined in any cafe wherein the Provincial 
 Courts had a legal jurifdiclion. — The Council 
 thinking this an equivocal anfwer (as the Su- 
 preme Court referved to itfelf the right of de- 
 claring where it was legal and where it was il- 
 legal), never exercifed the funflions of this 
 Court. 
 
 After having lain in a quiefcent (late for fo 
 long a time, it was now likely to be awakened 
 into exertion, in confequcnce of the difputes 
 occafioned by thole fubfidiary regulations, juft 
 mentioned, for afcertaining the limits between 
 7 the
 
 ( 96 ) 
 
 the Provincial Courts of Juftice and Boards of 
 Revenue. Thefe difputes took their rife in 
 one of the largeft provinces (that of Patna, 
 the old fource and fcene of contention) ; and 
 all the parties were aftually fummoned to Cal- 
 cutta, to await the final fettlement of the Go' 
 vernor and Council. 
 
 The fubjeft was, no doubt, attended with 
 difficulties. The fame jealous rival, the Su- 
 prenae Court, was at hand, and ready to receive, 
 with open arms, the unfuccefsful complainant, 
 which ever fide fliould prevail. Such preg- 
 nant germs of difcord could not fail of gather- 
 ing flrength to blow, in an atmofphere heated 
 by the breath of fo many lawyers. 
 
 The Governor appears to have Ihrunk from 
 the impending tafk, which, to ufe his own words, 
 
 * required fo much attention to thefe Courts in 
 
 < the infancy of their eftablilhment, that they 
 ' might neither prevent the purpofes, nor ex- 
 
 < ceed the limits, of their jurifdiction, norfuffer 
 ' incroachments upon it. 
 
 < To effect thefe points' (fays he) ' would re- 
 
 < quire fuch a laborious, and almofl unremitted 
 
 < application, that, however urgent or im- 
 
 < portant they may appear, I fhould dread to 
 « bring them before the confultation of the 
 
 * Board, unlefs I could propofe fome expedient 
 
 i ' for
 
 ( 91 ) 
 
 * for that end, that fhould not add to the 
 ' weight of bufinefs with which it is already 
 ' overcharged,* 
 
 I believe the public will be of opinion, that 
 the meafure the Governor propofed was a very 
 extraordinary Expedient, and, like one of thofe 
 dangerous remedies which a Phyfician offers to 
 his almoft exhaufted patient, under a tremen- 
 dous alternative, *' either to kill or cure V* — ^ 
 It was no lefs than for the Governor and Coun- 
 cil to diveft themfelves of their old conftitu- 
 tional authority, as a Court of Appeal, and in 
 their ftead to place the Chief Juftice himfelf, 
 the great original and caufe of all the mifchiefs 
 they complained ofj the chief aftor in the for- 
 mer contentions -, and art and part in all thofe 
 violent proceedings againft the Provincial 
 Courts of Judicature *. 
 
 * It feems to be a favourite political maxim of the pre- 
 fent day, and has even found its way into a certain great 
 Houfe, '• that the fame perfons who have brought % 
 *' country into diiEculties and embarrafTments, are tb* 
 •* fitteft to extricate them again." On this maxim, the 
 Chief Juftice appears to have been the fittell: perfon to fe- 
 left for this high office ; as beft able, in the charafter of 
 Judge of the Sudder Adaulut, to retrieve the mif- 
 chiefs produced by his conduft in the Supreme Court i 
 to adminifler at once the poifon and the antidote ; and, 
 like the fabulous fpear of Achilles^ to heal the woands he 
 himfelf had made. 
 
 O In
 
 ( 92 ) 
 
 i In the ftate of things at Calcutta, already; 
 defcribed : — A vail majority of the Britifh in- 
 habitants in thofe provinces, havir^g aftually 
 made theoifelves parties againft the Chief Juf- 
 ticc and the other Judges, in a petition then 
 pending before Parliament; the Governor and 
 Council Handing in a fimilar, or indeed in a 
 muchworfe predicament, inconfequence of their 
 open refiftance to the procefs of the Court j the 
 Judgescontinuing firm to their formerprinciples 
 of action, and the Chief Juftice, in particular, 
 like another Jupiter Tonans, hurling his thunder- 
 bolts at the devoted heads of his opponents ; — 
 HI this ftate of things it will require very few 
 words to prov€, that fuch an appointment was 
 not likely to be very popular at Calcutta. 
 Mr. Haftings honedly confefTes, " he was 
 " aware, the choice he had made for fo im- 
 *' portant an ofRce, and one which muft mi- 
 " nutely and narrowly overlook every rank of 
 " the Civil Service, would fubje6l him to 
 " much popular prejudice j as its real ten- 
 <* dency would be mifunderftood by many, 
 ** mifreprefented by more, and perhaps 
 *' dreaded by a few.'* 1 fliall be glad to know 
 by whom fuch powers, in fuch hands, would 
 not be dreaded! — Almofl: alUhe Civil Servants, 
 who prefided in thole Provincial Councils, 
 were (as has been juft ftated) at that moment 
 parties againft the Chief Juftice, in a Petition 
 
 to
 
 ( 99 > 
 
 to' Parliament, and on that account, as well as 
 for the part ihey had taken in other tranfac* 
 lions, were obnoxious to his refentment. I 
 "believe it will be hardly laid, that the miferabie 
 Cauzees and Muftees were likely to rejoice at 
 this appointir.ent and controul over them. It 
 requires indeed all Mr. Haftings's abilities to 
 reconcile us to this meafure. Let us hear his 
 reafons for the appointment, and (as he ap- 
 peals to the reditude of his own intentions) 
 they have a right to the moft favourable con- 
 ftru6i:ion. — * The want of legal powers, except 
 
 * fuch as are implied in very doubtful con- 
 
 * flructions of the A6t of Parliament, and the 
 « hazards to which the Superiors of the De- 
 
 * wanny Courts are expofed, in their own per- 
 
 * fons, from the exercife of their funcflions, 
 ' has been the principal caufe of this remiflhefs, 
 
 * and equally of the difregard which has been 
 
 * in many inftances fhewn to their authority. 
 
 * They will be now enabled to a61: with confi- 
 
 * dence ; nor will any man dare to conteft 
 
 * their right of afling, when their proceedings 
 
 * are held under the fanclion and immediate 
 
 * patronage of the firft Member of the Supreme 
 ' Court, and with his participation in the in- 
 ' ftances of fuch as are brought in appeal bc- 
 ' fore him, and regulated by his inflruclions. 
 
 * They very much require an inftruclor j and 
 ' no one will doubt the fuperior qualifications 
 ■ of the Chief Juftice for fuch a duty. 
 
 O 2 * I:
 
 ( lOO ) 
 
 * It will be a means of lejfening the difianc( 
 « between the Board and the Supreme Court, 
 
 * which has perhaps been more than the unde- 
 
 * fined powers afTumed to each, the caufe of the 
 
 * want of that accommodating temper, which 
 
 * ought to have influenced their intercourfe 
 
 * with each other. The contefts in whych wc 
 ^ have been unfortunately engaged with the 
 
 * Court, bore at one time fo alarmirig a ten- 
 ' dency, that 1 believe every Member of the 
 
 * Board foreboded the mofl: dangerous confe- 
 ' quences to the peace and refources of this 
 
 * Government from them. They are at pre- 
 
 * fent compofedi but we cannot be certain 
 'that the calm will laft beyond the actual va- 
 ' cation, fince the fame grounds and materials 
 ' of difunion fubfifl:, and the revival of it at 
 
 * a time like this, added to our other troubles, 
 ' might, if carried to extremities, prove fatal. 
 
 < The propofirion which I have fubmitted to 
 ' the Board may, nor have I doubt that it will, 
 ^ prove an infirument of conciliation with the 
 ' Court ; and it will preclude the neceflity of 
 f its auuming a jurifdi(flion over perfons, ex- 
 
 * empted by our conftruflion of the Aft of 
 
 * Parliament from it. It will facilitate and 
 Vgive vigour to the courfe ofjuftice; it will 
 f leffen the cares of the Board, and added to 
 \ their leifure for occupations more urgent, 
 
 * and better fuited to the genius and principles 
 ' of Government. Nor wilj it be any accefllon 
 
 ' to
 
 i. loi ) 
 
 * to the power of the Court, where that portion 
 « of authority, which is propofed to be given, 
 ' is given only to a fingle nnan of the Court, 
 ' and may be revoked whenever the Board ihall 
 
 * think proper to refume it.* 
 
 After readinsr thefe Minutes of the Governor 
 General, with all the attention I am mafter of, 
 they feem to me to refolve themfelves into a 
 plain and direft confeflion, that he was already 
 too much embarrafled, by the proceedings of 
 the Supreme Court, to rifque any further con- 
 tentions j that he was fairly obliged to yield 
 the vidlory, and to own to the Chief Juflice in 
 fhe face of natives and Europeans, 
 
 " Vicifti, et vi£tum tendere palmas 
 
 ** Videre Aufonii : 
 
 ** Ulterius ne tende odiis *.'* 
 
 In what other light can we polTibly regard 
 his obfervation, that no man ** will dare to 
 " attack the proceedings of the Provincial 
 " Courts, when held under the fandion and 
 " patronage of the Chief Juftice j" — that this 
 
 * When a Chief Juilice, to approve his independent 
 fpjritto the natives of India, cites an Ode of Horace, I 
 hope it will not be thought below the ambition of a Pam- 
 phleteer to convince his Readers i^M^theal/o can quoteLatin. 
 
 If the Writer fhould hence incur the charge of pedantry 
 (a charge he would willingly efcape), he commits himfelF 
 to the Public with the foregoing apology. 
 
 6 appointment
 
 ( I02 ) 
 
 / appointment will lejfen the dijiance between the 
 .Board and the Supreme Court j — and that it 
 .will preclude the necejfity of its assuming a ju- 
 rifdiftion over perfons exempted from it by 
 Parliament. This lait argument is indeed one 
 of thofe felf-evident propofitions, which our 
 newfpaper critics have lately fliled 'Truijms. 
 ** It will preclude the neceffity of the Court's 
 *' ajjuming a jurifdiction -," How ? By giv- 
 ing in exprefs words that jurifdiflion over the 
 Provincial Councils, which for the iail fix years 
 the Court had been uniformly ftruggling to 
 ufurp, and the Council as uniformly ftruggling 
 to with-hold from them. 
 
 Profeffing to confine myfelf to the condud 
 of his Majefty's Judges, I fhall not con- 
 cern myfelf with enquiring into the motives 
 of the Governor and Council, any farther 
 than as they appear on the face of their pub- 
 lic proceedings. If there are thofe who think 
 that, in the whole of this tranfadlion, they 
 difcern the traces of a Job^b, manifeftly 
 founded on mutual convenience and per- 
 ibnal accommodation, I apprehend this will 
 hardly be urged as a vindication of the Chief 
 Juftice : If, on the other hand, the advocates 
 loroMr. Haflings fucceed in convincing the 
 world, that it was a wife and falutary meafure to 
 conciliate the Chief Juftice to the Service of 
 the State by a lucrative poft, rather than pro- 
 voke him to its ruin by maintaining the con-r 
 lention ; I think this will prove as indifferent a 
 
 ground
 
 ( 103 ) 
 
 ground of defence for the latter, whofe violent 
 and precipitate condu6b had noade fo humiliat- 
 ing an expedient on the part of the Governor, 
 an act of political neceffity. No law or precept 
 enjoins a Governor to continue in a ftate of re- 
 fiilajice to the authority of the laws, becaufe he 
 has once refilled, or to expofe * his fortune and 
 his peace of mind to the incurfions of an hoftile 
 court of judicature, and his friends to imprifon- 
 ment, and poffibly to death (as in the cafe of 
 Mr. Naylor), on the precarious chance of re- 
 ceiving an annual bill of indemnity from the 
 Parliament of Great Britain j when he had it in 
 his own power to gain the Chief Juftice to his 
 fide, or (taking it in the moil odious fenfe) to 
 make him an acccnipUce in the tranfaftion. 
 
 If we may believe the fuggeflions of a late 
 writer, the only weapons that arc ever likely 
 to prove fuccefsful with the Judges, arc 
 thofe which the Governor afitually employed, 
 namely, " lucrative contrafts to do nothing, 
 ** or finecure offices with large falaries, revoc- 
 
 ♦ There is a claufe in the Regulating Aft which ex- 
 empts the perfons of the Governor and Council in all 
 cafes except Treafoa and felony. But though their perfon* 
 are prote£led in civil cafes, their /ro/fr/y is liable : and, if 
 refilling the procefs of a Court of Law by an armed force, 
 be (as it may be prefumed to be) conftruftive treafon with- 
 in the claufe of " levying war againft ihe King," (Stat. 
 Edw. III.), the iituation of the Governor and Council wa& 
 alarming indeed ! 
 
 " able
 
 ( 1^4 ) 
 
 " able at the pleafure of the Governor and 
 " Councilf j" ' on this footing it may be 
 
 * prefumed (fays he) the Council would have 
 
 * no reafon to complain of any want of pli- 
 ' ancy and complaifance in the Judges. Here 
 
 * the matter will probably end, if the Court 
 
 * be continued on the prefent plan : and it is 
 
 * better it fhould end fo, than that the King's 
 ' Court of Juftice fhould be avowedly rcfiftcd, 
 
 * or the conteft between the Court and the 
 
 * Council continued. If the Judges are per- 
 
 * mitted to difturb and diftrefs the Govern- 
 
 * ment at their pleafure, there is no other re- 
 
 * medy. The company muft pay them in one 
 f fhape or other, firft, a great falary for doing 
 
 * mifchief; fecondly, as much for not doing 
 
 * it J and then the queftion will be, for what 
 
 * purpofe fhould fo many lawyers be quartered 
 
 * on the Company ?' He afterwards gives a 
 ihort account of the appointment of Elijah 
 Impey to his new office with a falary of Soool, 
 a year, and adds, * The perfonal policy of the 
 
 * meafure is not to be difputed. If tliere be 
 
 * other objedlions to it, Mr. Haftings may 
 « plead necelTity, to which they who continue 
 
 * him in the government, fliould not reduce 
 
 * him.' 
 
 As the common motives of Policy are not al- 
 ways to be exacted to the ftrictftandard of Mora- 
 
 f Extrafl of an original Letter from Calcatta. . Printed 
 forDebrett, in Piccadilly, 1782. 
 
 lity.
 
 ( «0J ) 
 
 lity, and as the fame application of the public mo- 
 ney, which a ftern Patriot would be apt to brand 
 with the name of Corruptiofty may be foftened 
 into the gentle name of Management y I know 
 not how far this defence will be deemed valid.— 
 It ought to be mentioned that Mr. Haftings 
 did not employ the laft " prevailing argu- 
 " ment*" till he found the argumentum hacu* 
 linumy or open refiftance, ineffcdlual. Having 
 in vain attempted what could be done by flrong 
 meafures, which like the North-wind in the 
 fable, only made the traveller clafp his Cloak 
 die clofer, he then tries the gentler methods 
 that were ftill in his power. The event is an- 
 fwerable. The Chief Juftice at laft relents. 
 He is no longer impafiive to the charms of 
 intereft and ambition f. 
 
 I cannot help remarking, with what indecent 
 precipitation the Chief Juftice accepts this 
 place. It does not appear that he had ever 
 enquired the conditions on which it was to be 
 held : and it is certain, he ftipulated no re- 
 ftridlions whatever refpe6ling the controul, and 
 PQ fence ag^inft any defpotic orders" of the 
 Governor and Council. On the contrary, 
 by his letter of the 24th of06tober, he under- 
 takes the office, Juhje^ to its prefent regulations j 
 
 * Antient fcandal infitruatB$, that there were certain ar-? 
 euments which made even Demoftlienes Phiiippize. 
 
 - t .". ^M when thg vvarm^T beams of influence play, 
 ^* He inehs, and throws his cmribfOUJi cloak. a\v»y." 
 ' P ani
 
 ( 1.06 ) 
 
 and fitch other^s the board Jhall think proper to 
 add to them* : We fee he accepts it, non ohfiante 
 the Law of England i non objtante the Charter 
 of the Crown, and the Acl of Parliament; 
 wJiich were fo loudly echoed before in his op- 
 ppfifion to the Council. He forgets his own 
 repeated proceftations j his own boafted quota- 
 tion from -\ Horace; he forgets even the peti- 
 tion 
 
 * A dreadful definition of the duty of an Englifli 
 Jud^e! and when we confider his own conflant remon- 
 ftrances againft the Governor and Council, and his re- 
 peated infinuations of their bafe attempts, fecretly to un- 
 dermine and openly to overturn the King's Court, what are 
 we to thinlc of Sir Elijah Impey's accepting a Judicial 
 Office, in which the meafure of his obedience was not 
 only unknown, but unlimited? What 7«^^^« irradiation 
 had difpelled his gloomy apprehenfxons of the conduft of 
 tJie^G^vernor and Council, that he fhould thus implicitly 
 fubmit himfelf to their orders ? Was it not a little extra- 
 ordinary, that his converfion fhould happen at that lucky 
 moment when a lucrative poft was offered him ? — In vain 
 will ho urge, that jt was a 'voluntary offer on the part of 
 the, Governor and Council : that he accepted it with a 
 view to forward the Public Goodj and defend himfelf in 
 the words of King William, by faying, Non rapui,fedre- 
 ttj^is. The world will judge of his motives by his conduft ; 
 tkic foregoipg fa£ls will be combined, and the obvious in- 
 ference drawn in this country, where the theory and prac- 
 tice pf politural arrangements are tolerably well underflood. 
 
 f Connedling nis conduft from the deflrudlion of the 
 old fyflem of Judicature in the Country Courts, to his ac- 
 ceptance of this office and falary, perhaps it were eafy to 
 find a mere fuitable quotation than his " Juftum et tena- 
 »• ceni propofiti virum," 
 
 in
 
 ( >07 ) 
 
 tion of his Attorneys ; for whom he ftipulates 
 neither provifion nor compenfation for their 
 lofs of bufinefs, at the time he accepts an office 
 which the Governor recommends on the fole 
 ground of its putting a flop to all claims of 
 difputed jurifdiftion, the great fource of pro- 
 fit to the pradifers of the Court. Indeed, the 
 Chief Juftice ufes thefe gentlemen in a very 
 fhabby manner ; when it is to ferve his own 
 purpofe, they are reprefented as Jlarving for 
 want of praflice, and he draws a lamentable 
 pifture of their diftrefles, and attends to their 
 wants with fo fatherly an anxiety, that inftead 
 of the Scripture Hiftory of the " Ravens feed- 
 ** ing Elijah," we almoft fancy we fee "Elijali 
 *f feeding the Ravens ;" and thus acquitting 
 the ancient obligation *. 
 
 Many 
 
 'D' 
 
 In the very fame ode of Horace : vid. Juno's Speech, begin- 
 ning with 
 
 ' Ilion Ilion 
 
 * FATALis inceftufque Judex 
 
 * Vertit in pulverem.' 
 down to 
 
 * Auram irrepertumj^^ra^rf for titer 
 
 * ^am cogere humanos in ufus, &c. 
 
 * It is rather fingular, that Sir Elijah Impey fhould ex- 
 pert to excite the feelings of this country, by apathetic re- 
 prefentation of the probable diflreffes of the Attornies, 
 if the Court's Jurifdiflion fhould be coerced. People are 
 in general too much difpofed. to take part againjl the Law- 
 yers, and to regard their complaint of want of bufinefs as 
 
 P 2 a happy
 
 ( loS > 
 
 Many Attornies, it feems, in confequence of 
 thefe proceedings, have entered into the 
 
 army. When the Supreme Court was efta- 
 
 blifhed, fomc of them left the army to take up 
 the more lucrative profefiion of the law. 
 " Cedant arma togas" was then the motto. 
 This learned corps are once more returned to 
 the former profefiion of arms. 
 
 Rurfus et in veterem fato revoluta jiguram ejl *. 
 
 To return to the ferious queflion, the 
 
 Chief Juftice probably did not expeft the mat- 
 ter would ever come to an iflue in the Houl'e 
 of Commons. He trufted confidently, that 
 
 a happy omen of general good : juft as they would the' 
 like reprefentation of the College of Phyficians, and the 
 worfhipful Company of Apothecaries, as a ftrong fymptom 
 of general health. 
 
 • Vid. Major Scott's Evidence in the late report of the 
 Seledl Committee this Seffion. ** The appointment of Sir 
 *' Elijah Impey, he conceived, would effedually prevent the 
 *' interference of the Supreme Court in matters of revenue, 
 " which was the grand article of advantage to the Law- 
 •' yers, and that they mull either get into the army, or 
 ♦' return to England; and fome of them had aflually got 
 
 «' into the army before he left the country. Some 
 
 " of the Attornies came out originally Cadets, and quit- 
 " ted the army for the praflice of the Court, and in the 
 •' late want of officers had been received again into the 
 
 " army." —Query? Which is the greateft objeft of 
 
 ambition, the poll of Advocate General, or of Lieutenant- 
 General? The honours of the Gown, or the Sword ? 
 
 his
 
 ( lo^ ) 
 
 his friends in power would ftifle all the 
 complaints againft him, before they got the 
 length of a parliamentary inveftigation ; and 
 that the fame authority which fent the Judges 
 to India, would fupport them there in all their 
 Afts*. 
 
 I aflTert this from a very attentive perufal 
 of all his letters to the Secretary of State, 
 which, if confidered as hints or inftruftions 
 for the private ear of his Majefly's Miniflers, 
 are eafily accounted for. They are full of art- 
 ful mifreprefentations calculated to inflame the 
 preiudices of thofe to whom they are addrefTed ; 
 and of ftrong infinuations againft the Governor 
 and Council., and againft all the opponents of 
 the Judges. I do not fay that thefe mifreprefen- 
 tations are wilful on the part of the Chief Juf- 
 tice. Living in a confined Society at Calcutta; 
 little acquainted with the manners and inftitu- 
 tions of the country s and furrounded by 
 lawyers, who had a common caufe in inflaming 
 his refentments, he might receive his informa- 
 tion through a falfe medium, as well as feel a 
 natural propenfity to believe every alTertion that 
 
 • It was made a loud fubjeft of reproach by one of the 
 warmeft advocates for the Judges, that the Miniftry had 
 bafely facrificed the reputation and fortune of thofe een- 
 tlemen, by not fupporting them in the iait feffion of Par- 
 Uament ! 
 
 favoured
 
 ( "0 ) 
 
 favoured his own wiflies. It happened for- 
 tunately for the perfons who were the obje6ls 
 of his mifreprefentations, that thofe letters in- 
 ftead o( lying in the Secretary of State's office, 
 or at the table of the Privy-Council, and dif- 
 tilling their poifon in a quarter where the means 
 of counteracting them did not extend, have 
 been brought into open day-light, and have 
 received, on the face of the Select Committee's 
 Report, as public a refutation, as the afperfions 
 were cruel and malignant. As to the contradic- 
 tions that abound in thofe letters, I have re- 
 marked fome of them as I proceeded. By com- 
 paring different parts, inler fe^ many of the 
 charges are deftroyed : by comparing them, 
 with the Chief Juftice's own condud:, they are 
 all greatly invalidated. 
 
 One of the heavieft Accufations brought 
 by the Chief Juftice, is the malverfation of 
 the members of the Provincial Councils and 
 Courts of Judicature. Although I confider 
 the Chief Juftice as an interefted witnefs in 
 attacking thofe Courts, and as having made 
 himfelf at once Witnefs, Party, and Judge, I 
 fhall not objed to his teftimony. He fays, 
 <« In fome of thefe Courts, as we (the Judges) 
 *« are credibly informed, and of which we' en- 
 *« tertain no doubt -^ the adminiftration of Juftice 
 «« has been let to hire to Dewans and Banyans 
 
 " of
 
 ( «" ) 
 
 " of thofc gentlemen whofe duty it was to pre- 
 ** fide in thofe Courts j and thofe to whom it 
 *^ was let out, were left to indemnify themfelves 
 " by what they could extrafl: from the Suitors." 
 Such is the charge, containing imputations 
 of the blackeft dye j, and unfupported by a tit- 
 tle of evidence, unlefs the Chief Juftice's belief 
 is to be accepted for proof. The Committee 
 that fat laft year, ju(Hy conceiving it to be mat- 
 ter of the moft ferious importance, made a 
 flridtfcrutiny into this point. Many Gentlemen 
 of charader and fortune were examined, who, 
 having no intentions of returning into India, 
 were certainly as unprejudiced as the Chief 
 Juftice in the inflamed ftate of affairs in Ben- 
 gal could be, and certainly better informed ot 
 the inftitutions and cuftoms of that country. 
 And the refult appears to have been a clear 
 decifive confutation of this dark attack of the 
 Chief Juftice, and the rcverfe to have been as 
 completely demonftrated as a negative can be 
 proved*! 
 
 To 
 
 * Vide the evidence of C. W, Bouchton RouSjEfq. 
 « member of the Houfe of Commons; Ewan Law, Efq. 
 Son of the Bifhop of Carlifle ; Major Rennel; Ri- 
 chard Bar WELL, Efq. likcwife a member of the Houfe. 
 
 As the laft mentioned gentleman was known to have 
 
 been the friend and partizan of the Chief Juftice, and 
 
 5S the Chief Juftice intimated in his letters, a wifta that 
 
 Mr. Baiwcll might be examined on his behalf, his 
 
 6 evidence
 
 ( I" ) 
 
 "To confirm the preceding opinion of the 
 defign with which thefe letters were evidently 
 
 framed, 
 
 evidence will receive additional weight from this cir- 
 cumftance. 
 
 Evidence of Richard Barweli,, Efq. — Being afked 
 whether the Members of the Provincial Councils, prefiding 
 in the Courts of Adaulut, were fufpedled of venality, or 
 any other corruption in their judgments ? Said, That the 
 inftitution of the Court of Adaulut was calculated to pre- 
 clude any improper influence in the European Judges : the 
 Hate of fociety in England, and the principles that direft 
 mankind, he believes, have the fame weight over the minds 
 of men abroad ; but he does not rccolleft any inftances of 
 corruption in the Judges of the Court of Adaulut. ~ Being 
 afked, if he had ever heard any inftance of a Member of 
 a Provincial Council felling the emoluments arifing from 
 the Adaulut over which he prefides in rotation r Said, 
 That he did not know of any ; nor does he know of any 
 advantages of office to be difpofed of.— Being aflccd, If, 
 from his knowledge of the country, he could fay, whether 
 the natives have confidcr.ce in the Provincial Adauluts ? 
 Said, He was of opinion they had : he did not believe they 
 wiflied to fublHtute the Supreme Court in the place of the 
 Provincial Adaulut. — Being aflced. Whether he thought 
 they would wilh that their appeals fhould lie from the Pro- 
 vincial Adaulut to the Governor General and Council, or 
 to the Supreme Court ? Said, He believed they would pre- 
 fer it to be to the Governor General and Council. A 
 fimple inftitution, and a diredl and inftantaneous admini- 
 llration of juftice, determines this preference ; for it muft 
 be indifferent to the natives, what fet of men adminiller 
 Juftice. Seleft Committee's Report, page 20. 
 
 Evidence of EwAN Law, Efq. Being aflced. Whe- 
 ther he had ever heard of any perfon, prefiding in a De- 
 
 Wannee
 
 ( U3 ) 
 
 framed, I fliall content myfelf with another 
 Ihort extrafl from one of them, wherein i»e 
 
 infinuates, 
 
 wannee Adaulut, having farmed out the profits of his fta- 
 tion for a certain fum ? He faid, He never had, nor did 
 he think fuch a thing poffible ; for where there is an im-« 
 mediate appeal to the Council, it would anfwer no end : 
 That if fuch a proceeding were to be made the fubjeft of a 
 complaint to the Governor General and Council, a fevere 
 fcrutiny would be made into it, and the offender, if found 
 guilty, would be difmifled the Service with difgrace. Sc- 
 ledl Committee's Report, page ig. 
 
 Evidence of Charles William Boughton Rous, 
 Efq. Who being examined to the fame point, in the ad- 
 miniftration of juftice at Dacca, of which province he 
 was Chief, faid. That he not only does not know of any 
 fuch pradice having exifted, during the whole time he 
 held the Chieffhip of Dacca, but on his conference be- 
 lieves, that fuch a fuppofition is totally falfe. Had there 
 exitted fuch a praftice, he thinks it muft neceffarily have 
 come to his knowledge, and moft probably would have 
 been ftated in the petitions of appeal ; of which many are 
 recorded in-the Dacca Confultations, without the fuppref- 
 fion of any circumftance contained in them. Seleft Com- 
 mittee's Report, page 29. 
 
 Major Rennel being examined as to the genera} efti- 
 mation in which the adminiilration of juftice in the Coun- 
 try Courts was held by the natives ; and being aflced, whe- 
 ther the Cauzee and Muftces, and Indian Profeflbrs of 
 Law, are in evil repute in that country? He faid. He 
 does not recolleft hearing any thing for or againft their 
 charafters ; that he has often been in their company, was 
 told the nature of their office, and has feen them treated 
 with refpeft.— Being afked. Whether that refpeft appeared 
 to him to be the eii'cd of fear or of opinion ? He faid, Of 
 
 Q^ opinion.
 
 ( "4 ) 
 
 infinuates, that the Petitions which the natives 
 had figned againft the jurifdidlion of the Court 
 were diftated by Engliflimen j and afTerts 
 them to have been openly procured by the 
 Agents of Government*. " The only manner, 
 " he adds,in which the obtaining Petitions here 
 '' differs from the mode pradtifed by fadions 
 " in England, is, there tliey are folicited and 
 *' got by influence, here they are commanded." 
 I mention this rather as an inftance of what I 
 have aflerted before (that thefe letters were not 
 meant to encounter a parliam.entary inquiry, 
 but are only fitted for the meridian of St. 
 James's, and meanly calculated to flatter the 
 prejudices of certain Great Perfons there), than 
 with any intention of controverting it as a mat- 
 opinion. — That the people of Bengal treat all the learned 
 and religious with veneration ; a veneration not eafily con- 
 ceived by thofe who have not been in that country, which 
 would hardly be paid to them if they were confidered as 
 generally corrupt. — Being afked, If the natives were di/Ta- 
 ti'sfied with the courfe of juftice, as adminillered according 
 to their own laws and ufages ? He faid, By no means ; 
 and by what he has learnt from them, the adminiftration 
 of juftice, in their Country Courts, is juft the, fame now 
 as it was under the Mahomedan Government : That ha 
 believes they do not defire a better, nor does he fuppofe 
 they ever did, becaufe they are fo exceedingly attached to 
 their own manners and cuftoms, that they have fcarce an 
 idea of a better mode. Seledl Committee's Report, p. 2c. 
 
 * Seleft Committee's Report, Coihjurah Appendix, 
 
 No. 26. 
 
 ter
 
 ( IIJ ) 
 
 teroffaft, which, if it were true, would only 
 furnifii another proof of the total inutility of 
 the Supreme Court, by (hewing how unequal 
 it mull be to x.\\q proteBion of the natives, when 
 it cannot prevent the operation of that power, 
 which openly compels the natives to complain 
 of a Court, which the Chief Juftice aflerts is 
 their only barrier againft opprelTion. — But can it 
 be conceived, that fo artful a writer as Sir 
 Elijah, would have gone out of his way to call 
 fuch a wanton afperfion upon the leaders of 
 Oppofition in this country, if he imagined his 
 letters would have been brought before the 
 Public ? " The only manner in which the 
 " obtaining Petitions here, differs from the 
 ** mode pradtifed by factions in England, 
 " is, there they are folicited, and got by in- 
 '* fluence ; here, they are commanded." — Is 
 this the afiertion of a man who expefted his 
 condu<5t would be defended by Mr. Dunning, 
 Sir Fletcher Norton, &:c. &c. ? 
 
 As to the matter of fadl, however, let us fee 
 how it holds. On this point, Ilhall refer to Mr. 
 BarweU*s teftimony alone, for a reaibn already 
 intimated. This Gentleman being afked, * If, 
 
 * before he left Bengal, there were not Peti- 
 
 * tions from Zemindars, and others, to the 
 
 * Governor General and Council, againft the 
 
 0^2 * jurifdidion
 
 ( >■« ) 
 
 * jurirdi<5lion of the Supreme Court ? faid, Yes. 
 ' And being alked, whether he thought thefe 
 
 * Petitions were the natural effefts of their 
 < own opinions and fears, or obtained from 
 
 * them by the dread of the authority and power 
 
 * of the Governor and Council, or any other 
 
 * Europeans or their Agents ? faid, He be- 
 
 * lieved them to have proceeded from the 
 
 * people themfelves, without any European 
 
 * influence or interference whatfoever j and 
 
 * this farther reafon operated upon his mind, 
 
 * that no European influence had been ufed, 
 
 * as the Petitions are calculated to exempt the 
 « natives from profecutions in our Courts, 
 
 * while Engliflimen, of all denominations, are 
 
 * open to the attacks of the natives.' — Seleft 
 Committee's Report, page 58. 
 
 But leaving the Chief Juftice to flruggle in ' 
 his own toils, and attributing his infinuations 
 to the natural workings of a mind eager to 
 vindicate itfelf, and hence betrayed into afl^er- 
 tions which he himfelf will be the firfl: to re- 
 trad, when the heat and refentment that dic- 
 tated thofe angry letters fubfides ; let us 
 
 return to his appointment of Superintendant 
 in the lafl; refort of all thofe Courts, which* 
 publicly on the Bench, and privately in his 
 European letters, he had laboured to under- 
 mine and defl:roy. 
 
 If
 
 ( "7 ) 
 
 If this compromife were dill fuh fikntiOi I 
 am apt to believe the Miniflry would be as 
 little difpofed to difturb its repofe, as I am 
 convinced they were lad year to have applied 
 a remedy to the diforders that prevailed before : 
 had it not been for the vigour and adivity of a 
 few diftinguilhed characters in the Houle of 
 Commons. They might naturally entertain 
 an opinion (which a certain indolence that 
 hangs above them would be too apt to cherilli), 
 that the Governor had made a gcod bargain 
 with the Chief Juftice, by which, in effefl, io 
 much contention is fupprefled, and fo much 
 money faved to the Eaft India Company** 
 But the fubjed, with all its attendant circum- 
 llances, is now before Parliament. A decifion 
 one way or another mud be given : And an ap- 
 pointment which the Governor propofed, and 
 
 • Evidence of Major Scott, he faid, ** He conceived 
 '* this appointment would produce a confiderable faving 
 ** to the Eaft India Company, by a very confiderable di- 
 " minution of their law charges, and by preventing (in- 
 *' diredl) appeals to the Supreme Court in matters of Re- 
 *' venue, which he underflood were attended with a con- 
 *' fiderable deduftlon of the revenues. He had heard it 
 ** aflerted, that the expences of this Court, and the 
 *' lofs of revenues, had amounted to about a million 
 «' fterling." 
 
 Sir
 
 ( Ii8 ) 
 
 SirEyre Coote confirmed, as merely temporary, 
 mil ft now be made perpetual, or elfe wholly 
 refcinded *. 
 
 As I think it high time to put a period to 
 this Review of the Principles and Condudl of 
 the Judges, I Ihall wind up my obfervations 
 here ; prefuming that Tome, or all of the fol- 
 lowing conclufions, will inevitably force them- 
 felves upon the convidlion of the reader. 
 
 * It does not appear that the other two Judges, by any 
 public aft, declared either their diflent or afTent to this 
 appointment. It is imagined they arc to fucceed to the 
 office when Sir Elijah drops from the tree like ripe fruit ; 
 or when, like Elijah of old, he Jeaves his mantle behind 
 him, and retires to Europe full of riches and honours. 
 The laft Report of the Seleft Committee concludes with 
 faying, that *' as far as appears to them," thefe two Judges 
 had no ftiare in the tranfadion. But undoubtedly, the 
 profpe£t of fucceeding to a lucrative office is an intereft in 
 reverfion ; and, like other reverfionary interefts, fufceptible 
 of a valuation : otherwife it is wholly unaccountable, that 
 they (hould not have protefted againfl this appointment of 
 their Chief; and equally unaccountable, that the reciprocal 
 charges of the Court and Council (each accufing the other 
 of fubverting its legal authority), fhould from this time be 
 fuddenly buried in a profound (ilence, and be remember- 
 ed no more ! Befides, the Governor and Council have not 
 gained a fingle ftep, if thefe two gentlemen chufe to hold 
 oat : They form a majority in the Supreme Court ; and 
 then, how can the appointment of Sir Elijah Impey ope- 
 rate as a Conciliation between the two departments ? 
 
 I. That
 
 ( "9 ) 
 
 I. That admitting the Judges to have a6led 
 with the moft upright views, and with the bed 
 abilities, it does not appear, after fix years fatal 
 experience, probable, or even poflible, that an 
 Englifh Court of Law, proceeding upon the 
 rules and maxims upon which they have pro- 
 ceeded, can be produ6live of any beneficial 
 effefls in the provinces of Bengal, Bahar, and 
 Oriffa : — That our lav/s, though felefled with 
 the greateft liberality, will never coalefce with 
 the manners and cuftoms of India ; nor can we 
 entertain a reafonable hope that they will, in 
 any procefs of time, melt down into one con- 
 fiftent uniform fyftem; they are compofed 
 of hoftile and difcordant parts, which will al- 
 ways fly back " with jarring recoil," as often 
 ^s they are attempted to be brought into con- 
 tad with each other. 
 
 II. That fetting afide any views of private 
 ambition, that may be fuppofed to have actu- 
 ated the Judges, ftill they have Ihewn a nar- 
 rownefs of mind, and a fervile attachment to 
 the technical rules of Englifh Law, which has 
 proved them totally unequal to this difficult 
 taflc of aflimilating the two fyftems, fuppofing 
 it were pratfticable. — To cenfure thofe gentle- 
 men for a want of liberality of fentiment, and to 
 convert " what is their misfortune into a fault," 
 (as the common cant runs) may c.f"rhaps argue 
 
 a want
 
 ( I20 ) 
 
 a want of liberality in return ; but in a public 
 queftion it is neither unufual nor unfair; and 
 when the happinefs of ten millions of inhabit- 
 ants is put in the balance with the eafe and fa- 
 tisfaftion of three Englilh gentlemen (however 
 refpeftable in their private charaflers), it is no 
 mark of illiberality to contend, that if they 
 have ihewn themfelves unequal to the taflc they 
 undertook, they ought to be recalled. We 
 may at leaft be allowed to apply the gentle 
 cenfure, with which a celebrated hiftorian dif- 
 miffes a certain Exiled Family from the throne 
 of their anceftors * : " That their fl<:ill in go- 
 *' vernment was not equal to the delicacy of 
 ^' their fituation." 
 
 III. If, on the other hand, they have afled on 
 a fyftematic connefted fcheme, to acquire ari 
 authority and influence in that country, and for 
 this purpofe have uniformly embarraffed the 
 Company's leading fervants, enfeebled the ope- 
 rations of government, and at length driven 
 them to a complete furrcnder of all the power 
 and influence of the fettlement, at the feet of 
 the Supreme Court f j if fuch Ihall appear to 
 
 have 
 
 * Hume's Ilift. of England. 
 
 jf See ObfervatioDS qq the Admialftration of Jufticc in 
 
 Bengal, publifhed about a year and a half ago. " We 
 
 " oiuft not wonder," fiiys the writer, " that they" (the 
 
 7 Judges)
 
 ( >2' ) 
 
 have been their motives, and fuch their con- 
 du6t J I truft that whatever may be their own 
 narrow ideas of diPtributive jufiiicc, they will 
 be taught to recollecfl a favourite pofition of 
 the great and venerable Judge, who prefides in . 
 the Court of King's Bench, " that it is and 
 *' mufl be true from the fixed and immutable 
 " rules of eternal juftice, that a condu6t found- 
 ** ed in wrong, never can become le^^ly for the 
 " benefit of the wrong doer." 
 
 IV. With refpedl to this late appointment of 
 Sir Elijah Impey, with a large falary, revocable 
 at the pleafure of the Governor and Council, 
 it is fo repugnant to every principle on which 
 the Court and the Council have hitherto a6led, 
 that this alone is a ftrong objcclion to it. I can- 
 not comprize what occurs to me on this head 
 fo well, as by borrowing the words of one of 
 the learned counfel whom the Court of Direc- 
 
 Judges) ** have been corrupted by power, fince the beft 
 *' of men have been (o; we ought rather to cenfure the 
 *' inftitution by which they were expofed to fo great 
 " temptation." And with a prophetic fpirit he adds, 
 ** I will be bold to fay, if their power (hould increafe in 
 ** the progrefTion in which it has advanced to its prefent 
 ** bulk, that in the courfe of five years more, they will 
 " form a Triumvirate, which no force in India will 
 " be ableto withflan'd." Pages 34, 35. 
 
 R Xjrs 
 
 A
 
 ( 122 ) 
 
 tors confulted on the legality of this appoint- 
 ment. * I am of opinion, fays one of thefe 
 ' gentlemen*, that the appointment is ille- 
 ' gal, as contrary to the intention of the a£l of 
 
 * 13 Geo. III. and fubverfive of the objeft of 
 
 * the legiflature, in the inflitution of a Su- 
 
 * preme Court : I cannot forbear to add, that 
 
 * the example of a Chief Juftice, one day, fum- 
 
 * moning the Governor General and Council 
 
 * before his tribunal for acts done as Council, 
 ' and the next accepting of emoluments 
 
 * equal to his original appointment, to be held 
 < during the pleafure of the fame Council, is 
 ' in itfelf pernicious i and lliould this appoint- 
 ' ment be confirmed, oppofition, right or wrong, 
 ' to Government on the Seat of Juftice will 
 
 * become a fure road to preferment j and we 
 
 * may fee future judges leading examples of 
 
 * that corruption, which they were intended to 
 
 * punifh and prevent.' Vid. Append, to the 
 Seledl Committee's Report this Seffion. 
 
 V. It is a jealous principle of the 
 Englifh Government, and founded in the 
 foundefl maxims of liberty, that its Judges 
 ought to be independent of the Executive 
 power. It is the fureft bond the people have 
 
 • Mr. George Rous, Handing Counfel to the India 
 
 Company.
 
 ( 123 ) 
 
 for the upright adminlftration ofjuftice, and 
 is one of thofe rules that will hold with equal 
 force in India and in England. For this the 
 Mayor's Court was abolilhed, becaufe its 
 judges were removable at the pleafure of the 
 Governor : for this was the Supreme Court 
 creded, and large falaries annexed by Parlia- 
 ment, and its judges nominated by a diftindt 
 power from the Court of Direftors, who have 
 the controul over the Governor and Council. 
 The Chief Juftice himfelf appears to have in- 
 fifted on this circumftance with fufRcient force 
 in his recent difputes with the Governor. " Have 
 " the Governor and Council forgot, that one 
 " efpecial reafon for inftituting this Court, was 
 *' toprotedlthe natives againft the opprelTions of 
 " Britifli fubjeds invefled with, and exercifing, 
 " power in this country ?" And very early in 
 a correfpondence with the Governor, he lays 
 it down as a principle, that the condu6l of a 
 Chief Juftice, like C^efar's wife, ought not 
 only to be chafte, but fhould not even be fuf- 
 pedled. " It is not fufficient (fays he), that 
 " courts ofjuftice adl independently j it is ne- 
 " ceflary for the good government of a coun- 
 " try, that they ftiould be believed and known 
 " to be above all influence. A maxim in 
 " which I am fure to have the concurrence of 
 
 Jl 2 « the
 
 ( «H ) 
 
 ** the board *.'* If it be pofTible to conceive 
 more forcible exprelfions in fo plain a point, 
 we have them in his letter to Lord Rochford 
 in 1775. " We will afTiLl government in all 
 " fair and lawful adsi but we hold it to be 
 " our duty to maintain our independence; 
 *^ and I know it to be inconfiftent with the 
 " wifdom and juftice of my Sovereign and his 
 " Minifters, by any cenfure on our condu(5l, 
 ** for maintaining it with decency and firm- 
 ** nefs, to teach future judges to be obedient 
 " to the dictates of the Governor General and 
 '^ Council." Will this high-fpirited Chief 
 Juftice defcend to tell us (upon his own prin-. 
 ciple, that a Court of. Juftice fhould not only 
 be independent, but be believed and known 
 to be above all influence) how he could 
 reconcile it to his mind to accept the higheft 
 poft in the Company's fervice, revocable at the 
 pkafure of that very Governor and Council, a 
 poft in which, while he holds it, he muft be 
 confideredf as fubfervient to their didates ;, 
 and as certain of lofing it whenever he afts 
 againft the will of the majority ? Will the na- 
 tives repair with confidence to the Supreme 
 Court, whofe firft magiftrate is under the ap- 
 parent contrQul of the Governor and Council ? 
 
 * Seleft Com- Rep. Gen. Appendix. 
 ■j- I mean in every public point of view. 
 
 Or,
 
 ( 125 ) 
 
 "Or, in what light will the inflitution of this 
 Court appear to them after this compromifc ? 
 
 VI. In whatever point of view the natives 
 confider the tranfadion (whether they imagine 
 the Court is brought over to the Council, or 
 the Council is gone over to the Court), it muft 
 be a problem which their underftandings can 
 never folve. The whole is a myftery, and one 
 inextricable maze, without any clue to difco- 
 yer " where all the regular confuRon ends." 
 We have given them in the whole Hiftory 
 of the Council and the Court, their quarrels> 
 9,nd their reconcilements, a lively fpecimen of 
 0ur Englifh Drama, from which they will be 
 enabled to form no inadequate idea of the in- 
 . trigues of a modern comedy*. After four long 
 A6ls of dilTenfion and refinance, of unnatural 
 diflrelTes, and wonderful deliveries j they 
 now fee the tv/o principal Performers come 
 together in a mafque; the curtain drops, and 
 jthe drama ends. 
 
 * It will be difficult to fay, whether It would furnifti 
 pioft materials for the comic or the tragic mufe. The Execu - 
 tion of Nundecomar ; the Imprifonment of the Mufcees ; 
 the Death of the Cawzee ; the accelerated lllnefs of Mr. 
 Naylor, are ingredients rather of a/omireait. 
 
 VII. As
 
 ( 1*6 ) 
 
 VII. As to the Direftors of the Eaft: India 
 Company, the Hiftory of this Court muft to 
 them be an entertainment equally pleafant. 
 At their requeft, the whole complicated ma- 
 chine was fet in motion : And, after all its 
 movements are difplayed, it returns to the 
 point from which it at firft fet out. They 
 complained that they had loft all controul over 
 their fervants*. They fought and obtained 
 an independent Court of Juftice j and now, in- 
 ftead of a Mayor's Court, at little or no 
 cxpence, they have a Supreme Court at an 
 jmmenfe expence j and after fix years experi- 
 ment, in which period they have feen fufficient 
 proof of the futility of all their former hopes, 
 they now behold its chief Magiftrate accept a 
 lucrative poft under the Governor and Council, 
 to be held durante bene placito j and all oftenfi- 
 ble grounds of this inftitution at once done 
 away j while the court and its charges hang a 
 dead weight upon their finances, like fome 
 cumberfome machine, admirable indeed for 
 the multiplicity of its fprings, and the curious 
 conftrudlion of its checks and balances, but 
 
 • Vide Debates in Parliament, before the inftitution of 
 the Supreme Court. 
 
 totally
 
 ( 127 ) 
 
 totally ufelefs in itfelf, and repaired and up- 
 held at an enormous cod to die Company. 
 
 VIII. If the King or <:h'; Parliament had 
 chofen to appoint Sir Elijah Impey Chie^ Judge 
 over all the Country Courts, it had been a dif- 
 ferent queflion ; but, from their not having 
 done fo, I conclude it was not their intention. 
 And it will hardly be contended that he had a 
 right to vex and harafs the Council into the 
 grant of an office, which the Legiflature never 
 intended him to fill j — or if the Governor and 
 Council had given him the appointment, on 
 his firll arrival in India, before the minds of 
 men (and his own more than any) were in- 
 flamed with animofity and refentment, it had 
 been a lefs obnoxious ftep. But can it be 
 thought that he is a proper perfon for that 
 office, after all that has pafied in the Settle- 
 ment, and all that has pafled in Parliament ? 
 
 What complicated powers does this Gentle- 
 man at prefent exercifc ! If he was Ubiq^uity it- 
 felf, he cannot perform all his fundions. Not 
 to fpeak of his Criminal, Ecclefiaftical, Ad- 
 miralty Jurifdiflions, confirmed by the Let- 
 ters-patent, I fhall confine myfelf to his triple 
 capacity of Chief Judge of an Englifh Court of 
 Law J an Englilh Court of Equity ^ and a Malio- 
 medan Court of Appeals. — It fometimes hap- 
 4 pens.
 
 ( 123 ) 
 
 pens, in a Company of Strollers (to refume 4 
 former allufion), where the mufter-roll is fcanty, 
 that the fame Performer is obliged to play three 
 or four different Charadbers. On the Calcutta 
 ilage, the fame neceffity has enforced the fame 
 expedient. Sir Elijah Impey is the great A6tor 
 there : — Let us follow him through his different 
 parts. — At one time we fee him in the habit 
 and robes of a ChiefJustice, dealing out Law 
 by the ftrid fcales of Littleton and Coke. Lo ! 
 the fcene changes on a fudden. He has thrown 
 afide his robes of ermine j and we behold him 
 in a plain filk gown, difpenfing Equity * to 
 
 the 
 
 * The abfurdity of thefe fame Judges* prefidingin dif- 
 tinft Courts of equity and law, is fulEciently evident. 
 Let us fuppofe a judgment is pronounced in the Court of 
 law in favour of the plaintiff— the defendant files his bill 
 inequity — he obtains an injunftion, and the plaintifflofes 
 his verdid. This indireft mode of appeal;, from the fame 
 men in red robes to the fame men in black, is a precious 
 abfurdity. The old woman of Macedon's appeal, from 
 ** King Philip drunk, to King Philip fober," was really 
 founded ip good fenfe j though even that was but a preca- 
 rious remedy. 
 
 I apprehend the Leglflature (Stat. 13 Geo. III.), by con- 
 ftituting the Supreme Court both a Court of law and equity, 
 only meant that there fhould be no defefl of juftice from 
 the narrowuefs of its powers, and that, in their judg- 
 nvents, equity ihould temper the ftriftnefs of law : but the 
 Letters-patent expiefslyeftablifh, ** that the faid Supreme 
 *' Court fhall alfo be a Court of Equity, in the fame man, 
 
 *' ner
 
 the wondering native. Again the fcenc is 
 fhifted; and we are prefcnted with the Su- 
 perintendant of the Sudder Adaulut, re- 
 verfing, confirming, or altering the decrees of 
 the Provincial Courts in queflions of Hindoo 
 or of Mahomedan Jurifprudence. In vain the 
 fiiitor flies from Court to Court} the fame 
 Judge appears in all j crolTes him like his Evil 
 Genius, meets him in every avenue, and haunts 
 him at every turn. 
 
 IX. But it may be contended, that Sir Eli- 
 jah Impey's judicial habits, and knowledge of 
 law, qualify him, in a peculiar manner, for 
 exerciling an appellate jurifdidion over all the 
 Provincial Courts. — Without willingly de- 
 tracting from the merits of a profefTion, which, 
 when purfued on liberal principles, is the firft 
 and moft honourable profefTion in this country, 
 I think we may reafonably doubt, whether the 
 habits of an Englijh lawyer would qualify him 
 for a Judge of a Mahomedan Court of. Appeal. 
 
 *' ner as the High Court of Chancery in Great Britain." 
 By thus dividing the Courts, without feparating thejudges, 
 a new and enormous train of expence was incurred to the 
 fuitor, without any poffible benefit. 
 
 If any thing can add to the perverfenefs of this Inftitu- 
 tion, it was the predileftion of the Judges in favour of the 
 Common Law ; for they foon relinquifted their Equity 
 Jurifdiftion : one reafon for which is probably mentioned 
 . by Sir E,lijah Impey himfclf, in the Letter quoted in the 
 Introdudion, Vide Ante. 
 
 S The
 
 ( 130 ) 
 
 The general principles of equity and natural 
 juftice are the fame in all countries; but when 
 they come to be modified by local circum- 
 ftahces, arid a thoufand other accidental dif- 
 ferences i and when the knowledge of thefe 
 differences is made a fltidy and a profeffion *, 
 1 really queftion whether a profeflional man be 
 not the moft unfit of all perfons to be tranf- 
 planted to another country, to adminifter juftice 
 there. Lawyers have been metaphorically 
 ftiled " High Priefts of the Temple of Juf- 
 " tice j" but I believe nobody would ever 
 think of recommending a perfon who profeflcd 
 one mode of faith, to be the high prieft of a 
 diftant nation who profeflcd a different mode, 
 
 • A celebrated Author obferves, " that parts of the 
 ** judicial procedure which were at firft only accidental, 
 *' come in time to be confidcred as efTential ; and fcrnia- 
 *' lities are accumulated upon each other, till the art of 
 *• litigation requires more lludy than the difcovery of 
 *' right." The concluding words probably refer to the 
 following pafTage of Cicero : " Non tarn JKjlitiis quam 
 litigandi 'vias tradunt." 
 
 Mr. Juftice Blackfione, in his juftly admired eulogium' 
 on the ftudy of the Law, calls it *' a fcience which em- 
 *' ploys, in its theory, the nobleft faculties of the foul, 
 " and exerts, in its pradlice, the cardinal virtues of the 
 *' heart." I am afraid the natives of Bengal have not yet 
 difcovered the cardinal virtues of the heart, which the 
 pradlice of the law is faid to call forth, unlefs it be the 
 cardinal virtue of Patience in thofe who have fufiered 
 by it. 
 
 though
 
 ( '31 ) 
 
 though both might derive their .tenets 
 
 from t 
 
 trines. 
 
 from the fame general code of religious doc- 
 
 We fee even Sir Elijah Impey is obliged, on 
 his firft admifiion to his.new office, to renounce 
 one of his mofl: popular, and juftly favourite 
 opinions. Some time after his arrival at Cal- 
 cutta, he eftabliihed offices for the fuits of 
 jpaupers J and in 1779, we have his own loud 
 applaufes of this meafure. ^ ** Nioft of the cafes 
 " which we have fent to fehgland," ((ays he) 
 " have been brought to light by means of 
 '' thefe offices for the benefit of paupers; for 
 ** the oppreflions of this country have been in 
 *' general fo complete, that they have feldom 
 ** left means to the opprefied (if they have not 
 ^' met with encouragement or affiftance) to 
 <* obtain juftice."— Letter to Lord Wey- 
 mouth, Select Committee's Report, General 
 Appendix, No. 31. 
 
 Now let us compare this humane, and bene- 
 volent Inftitution, of offices for the fuits of 
 paupers, with the following recent regulations 
 of the Provincial Courts of Adaulut *, fubjeft 
 
 * Thefe Regulations are printed in the Appendix to 
 the Selc(ft Committee's laft Report. 
 
 S 2 to
 
 ( 132 ) 
 
 to which he. has exprefsly .undertaken the office 
 of Judge of the Sudder Adaulut. 
 
 20* '' That if the parties fhould be found 
 
 " gyilty, as is often the cafe, fronn litigiouf- 
 
 " nefs and perverfenefs of flying from one 
 
 " Court to another, in order to prevent and 
 
 " protradt the courfe of juftice, the party fo 
 
 .*' tranfgrefling fliall be confidered as non- 
 
 " fuited, and according to his degree in life, 
 
 ^' and the notoriety of the offence, be liable to 
 
 y fINE, IMPRISONMENT, Of C9RrOPvAI, PU- 
 
 .^"nishMent.** 
 
 t( 
 
 21. '^ That as cafes may occur, in which it 
 will be highly necelTary, for the welfare of 
 ** the Crufh, to ^eftrain trivial and groundlefs 
 ^*\ complaints, and to deter chicane and in- 
 ** triguej wpicb paJftQns among the peop^le often 
 <'"work to iBe undoing of their neighbours y a dif- 
 f cretion fhall, in fuch cafes, be left to the 
 ** Superintendant, either to impofe a fine, not 
 ** exceeding Five Rupees, or inflift a corpo- 
 
 " RAL PUNISHMENT, nOt EXCEEDING TWENTY 
 
 ** LASHES WITH A RATTAN, according to the 
 " degree of the offence, and the perfon's fitu- 
 " ation in life." After this, I truft we fhall 
 hear no more of the peculiar qualifications of 
 an Englifh Judge for the ofBce of Superintend- 
 ant of the Sudder Adaulut. 
 
 X. I
 
 ( »33 ) 
 
 X. I fhall prefume to offer one obfervation 
 more, and it is particularly addreffed to the at- 
 tention of the Legillature. In the years 1772 
 and 1773, it is well known the;iffairs of India 
 engaged, and almoft engroifed, the whole at- 
 tention of Parliament. With infinite pains 
 they raifed a fuperftruflure, which was to con- 
 vince the Eaftern world of our talents for the 
 office of Legiflation, and to remain a lafting 
 monument of our ability, not only to conqucr> 
 but to govern the world. — H^e tibi erant artes. 
 — A feries of deplorable events has read us a 
 very humiliating lefTon on this fubjecl, in the 
 Weftern world. I am afraid we can take but 
 little occafion to flatter ourfelves on the fcore 
 of political wifdom, from the late tranfadtions 
 of the Eafl. 
 
 The refult of a two years patient invefbiga- 
 tion, was the celebrated Eaft India Regulat- 
 ing-act *. The Legillature conceived^ and 
 brought forth Twins j and the political and ju- 
 dicial parts of that Act were the double off- 
 fpring of thofe long and painful throes. The 
 features of both infants were fevere, rather 
 than amiable ; nor have they, as they ad- 
 vanced in years, much increafcd in favour 
 with mankind : 
 
 " Qui Bavium non odit; amct tua Carmina Moevi." — 
 • 13 Geo. III. cap. 63. 
 
 It
 
 ( 'J+ ) 
 
 It is difficult to fay, whether "the judicial or 
 the political parts of that fyflem, whether the 
 Court or the Council have moft difturbed the 
 peace of India, by their internal divifions, or 
 external oppofition. 
 
 If there was one point more anxioufly pro- 
 vided for in the balance of thefe two powers 
 than the reft, it was the independence of the 
 Judges, that they might be rendered equal to 
 the great objefl of their truft, viz. the correc- 
 tion of abufes committed by Britifh fubjefls. 
 They had large falaries voted them by Parlia- 
 ment i and a prohibitory Claufe annexed, for- 
 bidding them to accept any other emolument 
 on any account or any pretence whatfoever ; — 
 fo that we fee the Parliament, confcious of the 
 weaknefs of human nature, and, as if taught 
 by the frailty of its own Members (which now 
 "and the7t will appear in the moft uncorrupt Af- 
 fembly), feems to have induftrioufly pi'ecluded 
 the influence of Hope in the brcafts of the 
 Judges, even if they were difpofed to become 
 fubfervlent to the will ofthcQovernor and Coun- 
 cil i as well as the operation of Fear, by vefting 
 in the Crown, and not in the Governor and 
 Cbirncil, the power of removing them, 
 
 That this was the intention of Parliament, I 
 
 cannot have a doubt; but that this intention 
 
 8 was
 
 ( 135 ) 
 
 was not expreflcd in fufficient words, I can as. 
 little doubt i fince two of the greatell lawyers 
 in the kingdom * have declared the appoint- 
 ment 
 
 • The following is a pleafant in.ftancc of what fome 
 vrtcked wits have called the glorious uncertainty of the laiv. 
 The Court of Direftors, wi(hing to be informed of the le- 
 gality of this appointment, confulted four of the moft emi- 
 nent Counfel, learned in the laws of England, on the con- 
 flruflion of a great legiflative Regulation for the govern- 
 ment of their pofleflions in India. The queftion is no lefs 
 than, whether the Judges of a Court of Jultice, appointed 
 to controul the Governor and Council, and other Britifh 
 fabjefls in power, may or may not accept great con- 
 fidential Pofts, with large Salaries (that are more likely 
 to increafe t, than be diminifiied), to be held during the 
 pleafure of that very Governor and Council? Twolearned 
 Gentlemen (his Majefty's Attornry General, and MrT 
 Dunning) anfwcr in the affirmative ; two other learned 
 Gentlemen (his Majefliy's Solicitor-General, and Mr. 
 Kous) anfwer in the negative. The former, I prcfume, 
 admitted that Sir Elijah Impey could not receive any other 
 emolument than his 8coo 1. a year, as Chief Juftice ; 
 but they thought the very fame Sir Elijah Impey might le- 
 gally receive 8000 I. a year more, as Judge of the Sud- 
 der Adaulut. The latter contended, that the acceprance 
 of the additional 8000 1. was contrary both to the fpirit 
 and intention of the Legidature ; and one of them doubts 
 whether it be not contrary to the words ; r4nd the other 
 exprefsly confiders it as a contemptible evafion of the in- 
 tention of the Legislature. What are the Direiftors to 
 think, fay, or do, on this occaHon ? Are they to remain 
 
 •f Information has been received, that sn additional (iozo\. a ypa?") 
 and upwards, has been lately yoteJ for coDtingent charges. Seledl 
 Committee'ilaftReport, p. 25.
 
 ( 'J6 ) 
 
 meiit of Sir Elijah Impey to his new office, 
 with a large falary, neither contrary to that 
 ftarute, nor incompatible with his duty as 
 Chief Juftice, 
 
 It appears that the legiflature, on a fuppofi- 
 tion that the independence of the Judges was 
 fufficiently fecured, intruded them v/ith very 
 high powers, that can be juftified on no other 
 principle. For all future regulations made by the 
 Governor and Council, are to be firfl regiftered 
 by the Supreme Court of Judicature, before 
 they become binding. The legiflature con- 
 ceived, that any regulation which thefe two 
 hpdies (appointed diverfo intuitu, and eftablifh- 
 ed as mutual checks) fhould concur in, would 
 probably be wife in its principle, and mature 
 in its form. 
 
 What is now become of this jealous pre- 
 caution of the legiflature ? What is become 
 of this balance adjufted with fo much 
 nicety, or of what poflible benefit can it 
 
 as fufpcnded between thefc two opinions, thus drawing with 
 equal force, like Mahomet's CoJ^n, between Earth and 
 Heaven ? Have they any balance to afcertain their com- 
 parative weight? Or Ihall we advife them to confult four 
 learned Counfellors more ; though four more learned Coun- 
 fefllors they will not eafily find ? — — . 
 
 be
 
 ( »37 ) 
 
 be to uphold this Court, now the public 
 grounds of inflituting it have ceafed *. 
 "When the Houfe of Commons in the laft 
 century (to compare fmall things with great) 
 voted the Houfe of Lords " ufelefs/* it was 
 bccaufe they . feared its oppofition. If they 
 could have won over that Houfe to an impli- 
 cit obedience to their meafures, all mankind 
 would have concurrei^ in declaring it to bq 
 « ufclefs." 
 
 I will not diflionour the Chief Juftice or the 
 Governor, by fuppofing that the one would 
 impofe, or the other execute, any arbitrary nian- 
 date, that might require fuch fort of facrifices 
 of reputation and confcience on the part of the 
 Chief jufiice, as the writer of a pamphlet, 1 
 iiave already quoted, too plainly infinuates f'. 
 But it has been often obferved, that laws 
 are made to guard againft what men may do ; 
 not to truil to what they will do. As a public 
 meafure, therefore, to be vindicated on public 
 
 • We may aflc with Dr. Tucker, Cai bono ? 
 
 f •* 6y a little management, all the Judges, — fome of 
 ** them certainly, may be gained, and influenced to be 
 *' paffive at leaft, if not to do whatever they are bid, in 
 *' any queftion that touches the intereft or authority of 
 *' the government; or where it may be the objeB of a 
 *' frcuailing party in the Council to run doiun and ruin an 
 •• obnoxious individual.^' Extract from an Original Letter 
 from Calcutta. 
 
 T grounds.
 
 ( 138 ) 
 
 grounds, we have a right to prefume, that 
 power ill obtained will be ill applied; and it is 
 then natufal to inquire, where is there any 
 eheck or controul at hand * ? 
 
 it ought to be mentioned, that fomc little 
 trial of the principles of this compromife, bc- 
 <:ween the Council and the Court, has been 
 alteady made. A tax was lately impofed by 
 an ordinance of the Governor and Council on 
 the inhabitants of Calcutta (both Britilh and 
 jiatives), for the ufeful purpofe of improving 
 that city, and regulating the police. As the 
 tax, though laudable in its objefl, was fome- 
 what fevere in its quantum, it excited confider- 
 able oppofition j 1 have been informed, that 
 petitions were prefented to the Supreme Court, 
 to prevent this ordinance from being regiflered. 
 Had the Judges refufed their alTent, it might 
 have given them a moment's popularity in 
 India: And (fuch is the fiuduation of public 
 
 * The objeflions to the appointment in this light, are 
 fummed up with irreiiftible weight by the higheft Au- 
 thority, next to a politive declaration of tlie Houfe of 
 Commons ; I meao by the Sekdl Committee in their late 
 Report. I know not how far it may be regular, to refer 
 ito their obfcrvations ; but ftrong reafoning, expreffed ia 
 the moft forcible language, are or ought to be materials 
 fuhlici Juris, wherever they occur, either in or out of 
 Parliament. 
 
 4 Opinion)
 
 ( 139 ) 
 
 opinion) might, for ought I know, hav6 en- 
 tirely done away all thofe fentiments of difguft 
 and deteftation, which their former condu*5t 
 excited. — The tax however pafTed, and one o^ 
 the Judges (Sir Robert Chambers) is placed 
 at the head of a new commilTion of police j 
 but I believe without any falary. 
 
 It is the nature and policy of all power, while 
 it is yet unfledged, to make fhort excurfions, 
 and to approach by gentle gradations. Let uS 
 fuppofe, in the cafe of fome future Governor, 
 and fome future Chief Juftice, an obnoxious 
 and profligate meafure fhould be brought for- 
 ward ! wh.0 arc to oppofe it ? not the natives ; 
 " it is their peculiar temper (fays Sir Elijah) 
 " to expert every thing from power, and little 
 
 *' from jufl-ice *.'* Not the Britifli fubjedls, 
 
 for 
 
 • This is a part of a letter to the Governor and Coun- 
 cil, refpefting fome applications that Nundecomar had 
 made, pending his imprifonment and trial. The whole 
 paffage is worth notice, as it will fhew Sir Elijah Impey^s 
 opinions at that time, which was five years before he accept- 
 ed the office of fuperintendent of the S udder Adaulut, 
 revocable at the pleafure of the Governor and Council. 
 *' Should he (Nundecomar) continue to addrefs himfelfto 
 ** the board ; that which will, and can only, be obtained 
 *' from principles of juftice, may have the appearance of 
 *' being obtained by the means of influence and antho- 
 .♦' rity. The peculiar turn of mind of the natives being 
 
 T z •' /«
 
 ( 140 ) 
 
 for they are jointly under the controul of the 
 Governor and Chief Juftice, without a jury in 
 civil fuits, and without any check in political 
 emergencies. 
 
 To apply the former inflance, the power of 
 Taxation is one of the higheft powers that a 
 government can exercife. I know not why 
 the fame authority, which might tax Britifh 
 Subjei5ts at Calcutta, for any purpofe how- 
 ever falutary, might not extend through the 
 whole provinces of Bengal, Bahar, and OrifTa, 
 for all purpofes. Without the aflent of the 
 Supreme Court, I believe no perfon will con- 
 tend, that the Governor and Council of Ben- 
 gal can impofe a tax on Britifh Subje(5ls. Does 
 the aflent of a Court of Juftice appointed by 
 the King, legalize Cuch an exertion of power? 
 J leave the argument to the confidcration of 
 thofe who claim to be the fole difpofers of the 
 Purse of the Subject. I only mention it as 
 a further reafon, for preferving the Judges of 
 the Supreme Court, free from every the remoteft 
 influence of the Governor and Coupcij. 
 
 ** to expeS every thing from pOHJuer, and little from juftice » 
 *' I know I fhall be pardoned the obfervation, being 
 *' clearly convinced, that the Board would be as cautious 
 ** In furnilhing ground for, as the 'Judges can be jealous of 
 *' incurring, the imputation," Seled Comm. Rep. No. 3. 
 References. 
 
 I have
 
 ( HI ) 
 
 I have now brought the Hiftory of the Su- 
 preme Court down to the period of the latcft 
 difpatches from Bengal, and have ftated what, 
 I believe (without being accufed of begging 
 the queftion), I may call fome of the grievances 
 that have been felt from the inftitution of this 
 Court. What remedy thefe various inconve- 
 niences may admit, is a fubjedl of great nicety 
 and difficulty. I have found it a much eafier 
 taflc to defcribe the fymptoms of diforder, than 
 I fhould to prefcribe the cure. — If one of the firfl: 
 Political Characters of this country, in treating 
 of a fubjed upon which the whole range of 
 his great mind had long been exercifed (the 
 reformation of the Civil Government) : If 
 even he, was obliged to confefs, that " he ap- 
 " proached it with that awe and reverence 
 <' with which a young phyfician approaches to 
 f* the cure of the diforders of his parent * ;" — 
 I may furely make an honourable retreat, with- 
 out attempting to offer a remedy to the difor- 
 ders I have already defcribed. 
 
 * Speech of Edmund Burke, Efq. on prerenting to the 
 Houfe of Commons a plan for the better fecurity of the 
 independence of Parliament, and the oeconomical reform- 
 ation of the Civil and other Eltablilhments. Printed 
 for Dodfjey, 1780. 
 
 Ir
 
 ( H» ) 
 
 It may argue the unflcilfulnefs of a young 
 Prafbitioner j but I confcfs, that like Doctor 
 Last, I fee no rennedy fhort of a radical cure. 
 It will coft nnore Lacks of Rupees to the Eaft 
 India Company to patch up the old fyftem, 
 than to fend out a new* Court of Juftice on a 
 
 fimpler 
 
 • It has been propofed to appoint a fingle Judge, with 
 a deputy to affift him, fimilar to the Chancellor and the 
 Mafter of the Rolls in England. The Superior jodge to 
 be confined to caufes exceeding 200I. in value, except they 
 stc tried by confent before the inferior, from whom an 
 appeal might lie to the Superior Judge in all cafes exceed- 
 ing one hundred pounds. 
 
 The revival of the Mayor's Court with fome alterations 
 aad cxtenfion of its powers, the Mayor and Aldermen to 
 be chofen by the principal houfeholders (natives and Bri- 
 tifh) tn Calcutta, and not to be removeable by the Gover-; 
 Eor and Council, has likewife been recommended, and I 
 believe would be a very popular inftitution. An able 
 Recorder acquainted with the laws of England, would in 
 fuch cafe be neceffary to affift their judgment in points of 
 dii&culty. 
 
 The probable difference of expence between either of 
 thefe Courts, properly conftituted, and the prefent Court, 
 would be an immenfe faving to the Company. The Old 
 Mayor's Court, for the five years preceding its abolition, coft 
 ty e Company only about 9000 1. The Supreme Court, in 
 about the fame fpace of time, has ftood the Company in, 
 as appears from the charges aftually upon their books, 
 upwards of 360,0001. fterling. And thefe charges Mr. 
 Hastings obferves, in one of his jninutes, dated March 9, 
 1780, *' Though they may be a fair and accurate ftate 
 *» of all the expence and lofles which ftand on the books 
 
 !• of
 
 ( I« ) 
 
 plan. As long as the prcfcnt Judges continur, 
 every new regulation will be ** the fruitful 
 *' mother" of new offices and new appoint- 
 pointments, and all this, I am afraid, muft be 
 quietly fubmitted to, if the Governor and 
 Council are cxpcded to fulfil their other nu»« 
 merous and complicated duties*. 
 
 There 
 
 ••'"of the Company^ will convey but a very Inadequate id«a 
 •• of the lofs which thefe Provinces have fuftained by the 
 •* inftitution of this Court; a lofs which muft ultimately 
 •* fall upon the Company; nor of that which the Company 
 ••hath fuffered in the firft inftance by impediments and 
 •* difcouragements, thrown in the way of the Colleftors 
 •* of the Revenues, of which the reprefentations on our 
 "Records from the Provincial Councils and Colleftors 
 '* afford nomberlefs inftances ; or by the fpirit of contu- 
 *' macy and refiftance excited in the Zemindars and Farm- 
 •* crs of the Revenue ; or by a total flop being put to the 
 ** adminiftration of juftice in the Country Courts, which 
 ** compels the natives of all orders, who are pofiefleci of 
 ** fufficient means to refort to Calcutta from the moft dif- 
 " tant parts of the country, where, from their ignorance 
 •* of our laws and cuftoms, they are left wholly to the 
 ** mercyof Attornies and praftitioners of the Court : while 
 *• the body of the people, who have not property to carry 
 *' on a law-fuit, remain in a ftate of anarchy, without pro- 
 ** t«6iion, or the means of obtaining redrefs." 
 
 • Mr. Haftings has given a lively and animated de- 
 fcription of the duties and occupations of a Governor of 
 bengal, in a letter addrcflcd to the Court of Diredors in 
 1773, (long before the difputes with the Supreme Court 
 were added to the other embarraflments of the State). 
 • I dare appeal' (fays he) • to the public Records, to 
 
 * the
 
 ( H4 ) 
 
 There is one point, however, which I cannot 
 help ferioufly recommending to thofe, to whofc 
 Province it will fall to corred the prefent fyf- 
 tenrr of judicature J and that is, whether they^ 
 will, in any cafe whatever, fufFer a native to be 
 SUED in the Englifli Court ? Let the Supreme 
 Court (if it muji fubfift) be open to natives of 
 every- defcription, to prefer their complaints 
 againft the opprelTion of Europeans; — let the 
 
 * the teftimony of thofe who have an opportunity of 
 
 * knowing me, and even to the detail which the public. 
 
 * voice can repeat of the paft afts of this government^ 
 
 * that my time has been neither idly nor ufelefsly em- 
 
 * ployed. Yet fuch are the cares and embarraffments of 
 
 * this various State, that although much be done, much 
 
 * more even in the matters of moment muft remain ne- 
 
 * glcfted. To feled from the mifcelianeous heap which 
 
 * each day's exigencies prefent to our choice, thofe points 
 
 * on which the general welfare of your affairs moft eflen- 
 
 * tially depends, to provide expedients for future advan- 
 
 * tages, and guard againft probable evils, are all that 
 
 * your adminiftration can faithfully promife to perform 
 
 * for your fervice, with their united labours moil diligently 
 
 * exerted. 
 
 * The extent of Bengal, and its poffible refources, art 
 
 * equal to thofe of mod States In Europe. Its difficulties are 
 
 * greater than thofe of any, becaufe it wants both an efta- 
 
 * blifhed form and powers of government ; deriving its 
 
 * aflual fupport from the unremitted labours and perfonal 
 
 * exertions of individuals in power, inftead of the vital in- 
 
 * fluence which flows though the channels of a regular 
 
 * conftitution, and imperceptibly animates every part of 
 
 . it.»— - 
 
 'v- . . . 
 
 prefent
 
 ( H5 ) 
 
 preient Judges of this Court (if they have 
 jftiewn themfelves worthy of fo great a truft) 
 Continue to decide thefe fuits without a jury; 
 kt the Britifh fubjedt (if it be thought ne- 
 ccffary to fix fo fevere a ftigma on our coun- 
 trynrien in India) find himfelf ftript of his na- 
 tive right to a trial by his Peers *, the moment 
 kt fets foot in that country j let him be pu-" 
 
 * I believe fo harih and unconftitutlonal a meafure as 
 disfranchifing a large body of Britifh fubjedls (for fuch the 
 depriving them of a trial by jury is in effeft), for the pur- 
 pofe of beftowing an ideal or fpeculative good upon an- 
 other body of men (the native-fuitors in the Supreme 
 Court), cannot be vindicated on any principles of our go- 
 vernment or laws. 
 
 Upon a prefumption of general delinquency, and upon 
 prejudices unfuftained by any legal proof, many hundred 
 Britiih fubjefts are pronounced incapable of exercifing im- 
 partially the funftions of jurymen. Is this Law, or is it 
 Juftice ? Or was it done to gratify a certain fondnefs for 
 what Mr. Juftice Blackftone calls •* New and arbitrary 
 *• methods of trial, which, under a variety of plaufible pre- 
 ** tences, may in time imperceptibly undermine this belt 
 *' prefervative of Englifh Liberty."— —And is this uncon- 
 ftitutional innovation to be kept on foot, for fear of morti- 
 fying the private feelings of the prefent Judges in Bengal ! 
 It does not appear that the mode of trial which is fubftituted 
 in the room of trial by Jury, is any benefit to the natives, 
 but is only ten times more tedious and expenfive j and z 
 petty caufe, which would be decided by a fen Able jury in aa 
 hour or two, is by the abfurdities of taking written depo- 
 fitions, and of tranflatingand retranflating them, and the 
 blunders of the Clerks in Court, two or three days in 
 determining ! 
 
 U niihable
 
 ( 146 ) 
 
 fii (liable in his perfon and fortune (as by law 
 he is) for the a£bs of fuch natives as he em- 
 ploys, and as bond fide his agents : but do 
 
 not, under colour of protefling the native from 
 the oppreiTions of other natives, introduce un- 
 certain ftandards, and vague ftatute definitions, 
 which in their legal confequences may extend 
 to make every native of rank, character, and 
 opulence in the Provinces, liable to be fued in 
 that Court ; and to be fuddenly dragged away 
 , to a diflant Judicature, at the inftigation 
 of private malice j to be thrown into the 
 Calcutta prifon for want of bail* j to be com- 
 pelled to prove, that he is not within the con- 
 ftru6lion of an Englifh Statute j and if he fuc- 
 ceeds in edabl idling, to the fatisfaftion of the 
 Judges (zealous like all other Judges to en- 
 large the circle of their authority), that he is 
 not within the jurifdi6tion, that is, to prove a ne- 
 gative, — to be at laft turned adrift at Calcutta, 
 far from his native home, without money, and 
 without friends, his reputation fullied, his cre- 
 dit ruined, and the only fatisfaflion left him is 
 to bring an aclion in the fame Supreme Court 
 
 ^ • There is but one Sheriff for the immenfely populous, 
 apd extenfive Provinces of Bengal, Bahar, and Oriffa ; 
 Whereas in England and Wales, with not half the number 
 of inhabitants, Ave have at lezQ.ffty-t'wo Sheriffs autho- 
 riied to take bail, belides a number of fubordinate judica- 
 tures throughout the country. 
 
 ' 4 againll
 
 ( '47 ) 
 
 againfl: his opponent, for malicioufly caufing 
 
 him to be arrefted. Is this redrefs? or is it 
 
 not a mockery to his feelings * ? 
 
 If the remarks I have prefumed to ofFer in 
 the introdudion be founded either on law or 
 common fenfe, or (what is above both) on 
 experience j no pofTible form of words can be 
 framed to include native agents within the 
 jurifdidlion which will not become the bafis of 
 fucceflive interpretations, and, like a Speaking 
 Trumpet, be made to convey any fenfe the 
 Judges pleafe. No words appear at firft fight 
 a lefs exceptionable defcription of fuch natives 
 as might be fuppofed to be agents of Britifli 
 Subje6ts, than " perfons diretftly or indirectly 
 *' in their fervice or employment, or in the 
 " fervice and employment of the Company :" 
 And yet we fee that thefe words, in their ne- 
 cefTary operation and conftru6live extenfion, 
 have been fucceflively enlarged till this new 
 jurifdicftion became as unbounded in fadl, as 
 the mod comprehenfive words could have made 
 i't. And in the Bill that was brought into 
 
 f That this account is not exaggerated, vid. innumCf- 
 rable inftances in the reprefentations of the Governor and 
 
 Council. Thefe evils are in truth inherent in the 
 
 conftitution of a Court, which, though limited as to the 
 objefts of its jurifdiftion, is Supreme in its authority, and 
 claims a right of fummoning every native, and making 
 him prove his exemption, before he can be difcharged. 
 
 U 2 Parlia-
 
 < 148 ) 
 
 Parliament the laft feflion, it required up? 
 wards of fixty feftions or feparate claufes tQ 
 correft the mifchief that had been produced 
 
 by thefe few vague words, " dire<5tly or 
 
 " indireaiy, &c.'* 
 
 It has been ingenioufly argued, that the cx^ 
 tenfion of this judicature never can happen 
 without the co-operation of the natives; and 
 f:hat if they are the objefts, they are likewife 
 the Injiruments of this extenfion. There can be 
 no fuit without fuitors ; and the plaintiff at 
 lead approves the jurifdidion, when he re- 
 pairs to it for juftice. So far indeed it is true, 
 as Mr. Barwell flates, that ' many Zemindars 
 
 * and others, who complained of the opera- 
 
 * tion of the jurifdiftion upon them, and were 
 
 * anxious to be exempted, yet applied to the 
 
 * Court in purfuit of redrefs, or to fcreen 
 ' themfelves under fomc procefs of law, 
 
 * againft either the ads of government in 
 
 * inforcing payment of its rents, or of in- 
 
 * dividuals profecuting in the Country 
 5 Courts of Juftice.' Select Com. Rep. p. 58, 
 But I do not believe it will furnifh any very 
 powerful argument for the extenfion of this 
 judicature, by fhewing, that it produces a de- 
 falcation of the Company's revenues, or that it 
 gratifies litigious paflions. From the bell 
 
 informs-
 
 ( U9 ) 
 
 information that can be collefted, it appears^ 
 |he natives in Calcutta would never refort to 
 the Supreme Court but for the purpofe of pri- 
 vate revenge. The diftinftion of Casts 
 throughout Hindoft^n is well-known to create 
 a difference of rank, which, more than opu- 
 Jence or power, raifes one native above an- 
 other. It is a high gratification to a worthlefs 
 man of a vindidlive difpofition, to be able to 
 punifh a man of a fuperior Cast *, This he 
 effefts by threatening him with an action ia 
 the Supreme Court, whether he has grounds 
 or not ; for he knows he difgraces his adver- 
 fary, by making him appear in an Englifh 
 Court i and many inflances might be cited 
 of family being fet in array againfl family, 
 and the peace and quiet of domeflic life 
 being cruelly invaded, by the eafy means of 
 gratifying a momentary refentment, which the 
 Supreme Court affords. 
 
 ♦ Yid. Sir Elijah Impey's Letters before quoted, vide 
 p. 23. Tntrod. Notes. Hindoos of a high Caft, he fays, 
 and MufTuImen of high rank, think it fo great a difgrace 
 to take an oath, that they will rather ftand out the utmoft 
 rigour of the laws: and " they would pay any demand 
 ** fooner than anfwcr an oath to a bill of equity." A 
 woman Hindoo, or Moor, if not the outcafl: of the people, 
 can by no procefs be compelled to make her perfonal ap- 
 pearance in a Court of Juftice. An accufation againft her, 
 if Ihe muft be brought forth to make anfwer, is equal to a 
 fentence of capital punifhment. Vid. Rep. Sel. Com. 
 fajjtm. 
 
 But
 
 ( «50 ) 
 
 But it is not for the vindiflive, or even dif- 
 contented and querulous fuitor, that we ouo-ht 
 to feel on fuch occafions, it is for the quiet, 
 mild, and gentle Indian, who wifhes to con- 
 fornn to the inftitutions of his fathers, and has 
 no idea, that by living according to the inftitu- 
 tions of his country, he offends againft a foreign 
 law, or that he is every hour expofed to have 
 his condu6t tried by an unknown rule of acflion, 
 which may affix ideas of crinninality and guilt 
 to a6ls that are perfectly innocent, or indiffe- 
 rent, by the laws of his native country. I mufl: 
 infift upon this more fully, becaufe the jurif- 
 diclion of the Supreme Court is countenanced 
 (nay exprefsly confirmed) by the Ad: of laft 
 Seffion in and throughout the populous 
 city of Calcutta j that is, over a body of na- 
 tives amounting to between four or five 
 HUNDRED THOUSAND *, not abovc One thour 
 
 fand 
 
 * The Ad of laft Seffion leaves the criminal law of 
 England as it found it, to operate in full force upon thefe 
 natives : So that, according to the objedlion of the Court 
 of Directors, in their Memorial before cited, any native 
 may ftill be profecuted, like Nundecomar, for capital 
 offences againft our laws, when the like oftences may be 
 penal in a much inferior degree by his own. And ** every 
 *' man" (to adopt one of their inftances) " cpnvidled for 
 "the firft time of bigamy, which is allowed, protedled, 
 " and almoft commanded by their law, be burnt in the 
 " hand if he can read, and hanged if he cannot read." — 
 Here, however, the Court of Direftors have made a fmall 
 
 miftake
 
 ( 151 ) 
 
 fail d of whom (upon the moft enlarged com- 
 putation) underftand our language, and (till 
 lefs our laws. I much doubt, whether this 
 affirmance, of what was before a doubtful ju- 
 rifdidion, be fufficiently guarded, by enadl- 
 ing, that fuch fuits ihall be determined by the 
 laws of the Mahomedans or Gentoos refpedt- 
 ively (as the parties fliall be), becaufe it is 
 really impofllble for Englifh Judges not to have 
 a ftrong bias in favour of their own laws 
 which they know, and in which they are bred, 
 and a natural prejudice againft Mahomedan 
 and Gentoo laws, with which they are unac- 
 quainted. Befides, it is furely repofing too 
 much confidence in theprefent Judges; and is 
 exafling from minds, that are known to be 
 Itrongly prejudiced, a degree of liberality that 
 can hardly be expected from the moft enlarged 
 underitandings and unbiaflfed integrity. 
 
 miftake in point of law. The criterion o{ reading, in cfr- 
 der to entitle a conviftto the benefit of Clergy, isabolilhed 
 by a Statute of Queen Ann. It was doubted, before that 
 Statute, whether Jews, Infidels, or other Heretics, could be 
 entitled to their benefit of Clergy, as they could never have 
 taken Orders in Holy Church. According to this dillinc- 
 tion (which however is certainly not law), a Mahomedan 
 or a Gentoo muft lofe the benefit of Clergy, becaufe in- 
 capable of entering into Holy Orders. This is another 
 precious abfurdity, of attempting to apply our laws to the 
 natives of India ! were not the ridicule loft in the na- 
 tional difgrace and folly of the attempt ! 
 
 The
 
 The temporary Aft, that was palfed k(t 
 Seflion (after enumerating various claffes of 
 natives who fhall not be within the jurifdidion 
 of the Court), endeavours to bring back the 
 Supreme Court to the real principles on which 
 it was inftitutedj by declaring, that fuch na- 
 tives as are within the jurifdiftion^ fliall not be 
 anfwerable there ** for matters of inheritance 
 " or fuceeflionj or matters of dealing or con- 
 " trad, except for aflions of wrongs or tref- 
 " pafles *." But though that Ad has pared 
 away a confiderable portion of the Court*s ac- 
 qviired jurifdidion, it has given it a jurifdic-* 
 tion, in other refpeds, which is not only fuffi- 
 ciently ample, but which, it is to be appre- 
 hended, will revive new conftrudions, not lela 
 pernipipus than the former j and the natural 
 queftion then is, 
 
 «< What boots it at one gate to make defence, 
 " And at another to let in the foe ?'* 
 
 * What" the Supreme Court will choofe to call wrongs ot 
 ire/pajfes, I believe no lawyer in this country can predidl. 
 Any Aft of authority, attended with coercion, is a 
 trefpafs, unlefs it be flriftly jullified by the technical 
 rules of law ; and the native will be hampered in all the 
 nets of fpecial-pleading, before he can come to the merits 
 of the cafe. As to the legal definition of wrongs, it is a 
 word of Hill greater latitude. 
 
 I will
 
 ( IJ3 ) 
 
 I will vienture to prophefy, thatj with a 
 twentieth part of the ingenuity the prefenc 
 Judges have fhewn, the late Acb of the Britifli 
 Parliament will prove as feeble a barrier againft 
 the extenfion of their jurifdidtion, as an ordi- 
 nance of the Great Mogul, or his " man of 
 ** ftraw *,** the prefent Nabob of Bengal. 
 
 As the jurifdi(5lion is limited by the A6t of 
 laft year, natives of the following defcription 
 are ftill amenable to the Supreme Court : 
 
 All Natives, «' employed by the Company, or 
 •* the Governor General and Council, or by any per- 
 •* fon deriving authority under them, or by any na- 
 ** tive, or defcendant of a native of Great Britain f,'* 
 in anions for wrongs or trefpafles. 
 
 All native Magistrates, for any corrupt a£l 
 or a<Sls. 
 
 All Natives refidcnt at Calcutta, as has been 
 juft mentioned J. 
 
 Confident 
 
 • So called by one of the Judges on the Bench. 
 
 f Thefe general expreffions were introduced to correB 
 the latitude of the former Statute, viz. direQly or indireSily 
 in the/ewice of Britijh Subje£ls or the Company. Qu. As to 
 their probable operation in the Supreme Court ? 
 
 X There are feveral claufes in this A6t (which were left 
 
 ftanding in the Houfe of Lords, v^hen To many valuable 
 
 parts of the elaborate and extcnfive Bill that was originally 
 
 framed, were cut away) that appear to me to contain new 
 
 X materials
 
 ( 'S4 ) 
 
 Confident as 1 am that the benefit of allow- 
 ing any natives, of what dcfcription foever, to 
 
 be 
 
 materials of uncertainty and difpute ; I mean thofe claufes, 
 which, for. the more p erf eEily afcertaining fuch nativet as are 
 amenable to the Supreme Court, order all natives, employed 
 by Britifh SubjeAs, as Ilewards, agents, or partners iii 
 matters of revenue or merchandize, to be regiftered ; and 
 inflift divers penalties and forfeitures for neglefting fb to 
 do. — On thefe claufes, the following obfervations occur : 
 
 1 . It is itiade highly penal in a Britifh Subjeft to neglefl: 
 rcgiflering his native agent; at the fame time the Aft 
 affords no clue to interpret what conflitutes an agent in a 
 matter of revenue or merchandize. Does it mean every 
 perfon employed in the loweft offices of a warehoufe, cia- 
 nufaftory, &c. or only Gomaflahs and Banyans ? Are the 
 fervants of a Colleftor of Revenue, and to what extent, 
 and in what degree, within thefe words ? 
 
 2. They are faid to be, for more clearly afcertaining 
 what nati'ves are fubjeft, &c. ; yet it does not appear 
 that fuch regifter is made conclufive evidence, or any evi- 
 dence at all, fo as to affeft the native in a plea to the ju- 
 lifdidion of the Supreme Court. 
 
 3. The Brltifl-i Subjedl is left in the dark to pronounce 
 what an &gent means ; and the penalty of 500 1. on tvtry 
 ■cafe of omiflion, attaches upon the Supreme Court's con- 
 ftruftion of a doubtful term. In the 13th Geo. Ill, we 
 have the defcriptionoi an agent ; in the 21ft Geo. III. we 
 have the term itfelf. The defcription coft upwards of fixty 
 claufes to explain it. Wiil the difficulty be cured by fub- 
 ftituting the term for the definition f Will not this be 
 fatting the two A«5ls of Parliament to run in a cirde \ ttjt 
 
 fequiturq^ue fugitque. 
 
 4. If
 
 ( '55 ) 
 
 be fned in the Supreme Court, will be infi- 
 nitely outweighed by the hardfliips and incon- 
 veniences of fubjedting them to our laws, which 
 in their principles are fo repugnant to their 
 own, and in their forms of procefs are fo tedi- 
 ous, expenfive, and complicated, I cannot help 
 recominending, that this Court be inhibited from 
 holding.any plea whatever, between native and 
 NATIVE. The Chief Juftice himfelf afferts, that if 
 the Court were to fit only on caufes between the 
 
 4. If a Britifh Subjeft omits to regifter his native in any 
 concern of revenue or merchandize, he forfeits 500 1. and 
 all the profits. Now, for certain Britifli Subjefls, in the 
 Company's Service, to engage in trade at all, is feverely 
 reprehended and forbidden by 13 Geo. III. which conti- 
 nues unrepealed ; fo that omitting to regifter an agent in 
 an illegal tranfaftion, is declared doubly illegal. This is 
 what may be called a cumulati've law, in a new fenfe ! If 
 you engage in trade it is penal j if you do not proclaim ijt 
 to the world, it is penal in a ftill higher degree. 
 
 . 5. But the unfortunate native is reduced to a worfe di- 
 lemma. If his mafter, or partner, or employer, omits to 
 regifter his name, he lofes not only his falary, but all his 
 profits ; and whoever fues for the fame fhall be entitled 
 to recover. Thus, for the omiflion of a formality, of which 
 the native is ignorant, he forfeits his falary and profits 
 (the labour of years perhaps), and is obliged to refund all 
 that he has aftually received for ever fo long a time ! 
 
 Thefe appear to me ftrong objeflions againft thofe 
 ■claufes. I ofi^er them with the greateft deference and re- 
 ipeft to the confideration of thofe who are much better 
 judges than myfelf, how far they defervc a revifion, or a 
 total expulfion from the Aft. 
 
 X 2 Black
 
 ( 156 ) 
 
 Black Inhabitants of Calcutta, they could not 
 go through with one half of them j and I refer 
 to his own forcible reprefentations, in the year 
 1775, of the manifold impediments to the or- 
 dinary adminiftration of juftice in the Supreme 
 Court, from circumftances that ** have their 
 " fource (as he dates it) in the religion, man- 
 " ners, and prejudices of the natives *.** 
 
 If the hazardous idea of eftablifhing an Eng- 
 Jifh Judicature, to which natives are to be 
 fued, ftill predominates, I only wifh the word? 
 of Mr. Barwell f may have their due weight. 
 They are full of intrinfic good fenfe ; and he 
 can be fufpedted of no bias again ft the Supreme 
 Court, f his Gentlenfian being afked his opi- 
 nion, refpefling the probable benefit the na- 
 tives would derive from the inftitution of Cir- 
 cuits, and the eftablilhment of more Courts of 
 Judicature, fimilar to, and fubordinate to, the. 
 Supreme Court i anfweredj 'Xh^t * any In- 
 f ftitution, which may be formed upon the 
 
 * General Appendix, Seleft Committee's Report, 
 No. 31. — A better refutation cannot be conceived of the 
 Chief Juftice's claims and aflertions in the year 1780, thaa 
 his own Letters in 1775. 
 
 f I quote Mr. Bar well's evidence in preference, be- 
 caufe he is known to be politically and perfonally a friend 
 to the Chief Juftice; and if he is not a friend to the Su- 
 preme Court, it can only flow from conviftion. 
 
 * practice
 
 ( «J7 ) 
 
 f pr^lcp of our Courts, will make the whole 
 < fyftem fo exceedingly complicated, fo novel, 
 
 * and fo little fuited to the genius of the 
 
 * people, that he believes it would multiply 
 ' the evils that are already experienced. A 
 « fummary and more fimple mode of admini- 
 
 * firing juflice, is the only Inftitution which 
 
 * can be beneficial to a country, the majority 
 
 * of the inhabitants of which fupport them- 
 
 * felves and families upon fo trifling an income 
 
 * as 3 /. lo J. per annum.** — Seleft Comq^iittee's 
 Report, page 57. 
 
 I repeat it again : Let Eurppeans of every 
 defcription be amenable to the Supreme Court ; 
 Jet them be anfwerable for their own atfls, and 
 for thofe of their agents ; but do not, for the 
 fake of including their native-agents within 
 the jurifdidipn, and indulging an illufory hppc 
 of benefits, that never will be realized, fet up 
 an indeterminate rule, which muft revive the 
 former mifchiefs, and lead through the fame 
 mazes to the fame termination j or perhaps, by 
 opening a new door to queftions of a difputed 
 jurifdiclion, let in a multitude of frefli evils, 
 Jieavier than the former. If it be faid the 
 Court will be of no ufe, unlefs natives of a 
 certain defcription are made amenable; I an- 
 fwer, that the obje6l which the Legiflature 
 ought to have in view, on this and every oc- 
 
 cafion, 
 4
 
 ( ij8 ) 
 
 cafion, is to produce the greatcft poflible good, 
 4t the rifque of the leaft poflible mifchief j but 
 if the benefit to be expected is more than over- 
 balanced by the probable evil to be dreaded, the 
 whole fyftenm is radically defecflive. Of this 
 kind, I contend, is the jurifdidion of the Su- 
 preme Court over the natives of India. — Either 
 exclude it from this jurifdidlion by a found ge- 
 neral law i or, if the expence of the Court be 
 too grievous to be borne on the fingle condition 
 of its " doing no mifchief," the other branch 
 of the alternative is obvious, — abolifh it. — It is 
 a part of political wifdom to anticipate Necef-^ 
 fity, and 
 
 " To do that early, we muft do at laft." 
 
 FINIS. 
 
 f?4S 14
 
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 r^^mfm^^^^m^mms^smmsm^^mmm^mmimmm^^f. 
 
 UMTKRyrr^ 
 
 JMnamk
 
 375 Review of the 
 
 H5P> principlfl3 
 
 and conduct 
 
 of the judges of 
 
 His Majesty's 
 _gupremfi court of _ 
 judicatu]t'e in 
 Bengal . 
 
 UC SOUTHERN REGIONAL LIBRARY FACIL 
 
 A A 000133 862 3 
 
 375 
 
 R32