Original inutea of the Gov- ernor 'Generql *nd Council of Port in Bengal UNIVERSITY OF CALIFORNIA AT LOS ANGELES ORIGINAL MINUTES OF THE ^GOVERNOR GENERAL AND COUNCIL O F FORT WILLIAM 1 K [BENGAL, ON THE APPOINTMENT, RECOMMENDED AND CARRIED BY. MR. HASTINGS, IN OCTOBER, 1780, OF SIR ELIJAH I M P E Y; to BE JUDGE OF THE SUDDER DUAUNY ADAWLET, With a Salary of Five Thoufand Six Hundred Sicca Rupees a Month, or, Seven Thoufand Seven Hundied and Ninety-five Pounds Four Shillings per Annum. LONDON: Printed for J. DI BRETT (Succeflbr to Mr. Altnon) oppofite Burlington Houfe, Pkcadilly. 1781. \ v I MEMORANDUM. AS it does not appear, that the com- mittee of the honourable houfe of commons, when they clofed their laft re- port on the adminiftration of juftice in Bengal, had feen the lateft and moft mate- - rial part of the proceedings of the governor c - general and council on that fubject, their report of courfe is fo far defective. To fup- ply that defect, and to compleat the infor- mation already given to the public, the fol- t lowing minutes are now publimed, and for no other purpofe. The Eaft India com- pany and the nation mould alfo be ap- prized of the following facts. i ft. 354735 ift. Tbit Sir Eyre Coote did not deliver his opinion jirft on Mr. Haftings's propofition, as is uiual with the youngeft member of the council, but after he had careful >y perilled and confidered the minutes of the other gentlemen. That on the 24th, of October, 1780, Sir Elijah Impey, tormally accepted of the office ot judge of the Sudder Duauny Adavvlet, by a letter addreffed to the board. 3dly. That, on the fame day, Mr. Haft- ings recommended an allowance of five thoufand fix hundred Sicca rupees a month, for Sir Elijah Impey, which, reckoning the current rupee at two millings, as it is ufually rated in Bengal, is equal to leven thoufand, feven hundred, ninety five pounds, four {hillings a year. But, as that queftion could not be carried againft Mr. Wheler, and Mr. Francis, without the affiftance of Sir Eyre Coote, who had left Calcutta,' the decifion of it, at the governor general's defire, was poftponed, The The following extracts from the ad of parliament, and his majefty's charter of juftice, are inferted in this place, as a proper and neceflary introduction of the fubject. Claufe in the regulation bill of the 13th, of his prefent majefty's reign. " And that all fuch Claries to fuch go- " vernor general and council, and of fuch " chief juftice and judges (hall be in lieu / cil cannot, without departing from the princU pies on which they have unanimoufly acted, ef- tablifh the Sudder Adawleton any plan^ which commits the company's rights, or ours, in qua- lity of Duan of the provinces, to the cuftody of all, or any of the judges. The fupreme j\ court and council differ widely in their ideas of the jurifdiction of the court* The chief juftice cannot be fuppofed to have changed the opini- ons which he has at all times fo fteadily main- tained ; and thofe opinions would lead him to fubmit to the jurifdiction of the court in many inftances, in which the council, upon tbeir principles, would refill them. Thus the coun- cil, by making the chief juftice judge of the Sudder Dewannee Adawlut, would put it into the power of the very man, with whom they have been contending, to give up what they have hitherto infifted on as their eficntial rights. The great object of this plan is to give au- thority to the Dewannee Adawluts ; but I can- not admit that the means are likely to anfwer D the ( i8 ) the end. The arguments drawn from the ele- vated ftation of the chief juftice have no weight. He can carry none of the powers of the fupreme court into the Sudder Adawlut. When he ads under the appointment of the council as fuper- intendant, he will poflefs no part of the autho- rity which he derives from the king*s appoint- ment of chief juftice. It will not prove an in- ftrument of conciliation, nor prevent the revi- val of difputes, which it is faid might prove, fatal. It is admitted by the governor that the grounds of difunion ftill fubfift ; and it is cer- tain that the appointment of the chief juftice to the Sudder Adawlut will make no alteration in the authority and powers of the fupreme court. The remaining judges^ will have the fame powers that they all now poflefs, becaufe the council cannot, by new modelling the Adawlut?, abridge, or in any way affect the powers of the court. If the chief juftice car- ries his late opinions into the Sudder Adawlut, V the fupreme court will obtain ftrength from this appointment : if he acts on new principles more conformable to thofe of the council, that will rtife freih difficulties, It will tend to make a breach between him and the other judges, but can never repair the breach already fubfifting A between the' court and council. 1 uie the lan- guage which has already been applied by us to the ( 19 ) the judges, when I fay that there is a je which all men feel far their own power and con- fequence. T-he two pui (he judges cannot but fed themfelves wounded by this partial fclection. of the chief juftice, and the preference given to his fuperior qualifications. We ought not to offer them fuch caufe of offence, nor ought we to be carelefs of the effects it may pro- duce. -r-I conceive that the appointment of the chief juftice to this office would clam arid be inconfiitent with the duties of his preient fla- tion. It would be an iniuperable bar to his acting in many cafes, in whicn his duty, as chief juflice, would call on him to act. Sup- pofe a fuitor in the Adawlut fliould think the judge had acted illegally : he might bring his action againft him in the fupreme court ; and then, upon the principles on which the court and the chief juftice have particularly infifted and acted, he would be obliged to come as a party into the court, in which he ought to pre- fide as chief juftice, to plead in the ufual form, and to defend himfelf in the ufual way j and he might be compelled to pay damages for what he had done as fuperintendant, in the fame manner that the council of Patna were for their proceedings againft Nauderah Begum : Thus his proceedings in the Adawlut would D 2 bnng ( 20 ) bring him a party into his own court, and pre- clude him from acting in his capacity of chief jullice. Again, fuppofe a perfon, committed by any of the inferior Adawluts, or by the chief juftice himfelf as judge of the Sudder Ada-vlut, mould apply to him for a writ of Habeas Corpus :> Shall he refufe the writ, becaufe the grounds of the commitment are already known to him ? Or foall he grant it, tho* pofiefled of fuch knowledge, and where he himfelf has prejudged the queftion, by order- ing or approving the commitment ? I can- not prefume to fay how far it would be his duty to grant the writ at all events ; but it is evident that the prifoner would gain nothing by obtain- ing it.-! It may be faid the perfon, fo com- mitted, may apply for a writ of habeas corpus to one of the puifne judges. If he fucceeds (as v he certainly would, if in the opinion of the judge there mould be reafon to fuppofe the commitment might be illegal) it would follow, that the act of the fuperintendant would be can- vafled, and perhaps fet afide by an inferior judge of another court, in which the fuper- intendant himfelf prefides. This cafe might frequently occur; and if it fhould ever occur, it would tend to create new differences between the fupreme court on the one fide, and the Sud- der der Dewannee Adawlut, fupported by the chief juftice of the fupreme court, on the other. On the whole, I think it would be improper in the council to requeft the chief juftice to take upon himfelf, and perhaps illegal in him to accept an office, which is fo inconfiftent with the duties of his prefent ftation, and which would preclude him from exercifing the truft repofed in him by the King in many cafes of the greateft importance , particularly thofe, in which the limits of the jurifdiction of the, court, and the extent of the powers vetted in the council, might come in queftion. One of the obfervations with which the go- vernor general concludes his argument in favor of his plan, viz. " That the portion of au- ** thority, which is propofed to be given, is * given only to a lingle man of the court," appears to me a ftrong objection againft it. The Englifh government has very fparingly delegated judicial authority to fingle perfons ; final appeals in particular are never permitted to be tried by a fingle judge, either in England, or any of its provinces, or dependencies. The King is, I believe, the only fingle perfon 'to whom fuch an appellate jurifdiction is even nominally given j and he cannot try an appeal without v < 22 without the afliftance of his privy council. Ap- peals to him therefore are called appeals to the King in council^ This policy has nothing to do with trials by jury, or principles of Englilh liberty, which may be thought in-applicable to Bengal , but is founded on that juftice to which the natives of Bengal are entitled, as well as other men. But juftice requires that, in the conftitution of a court, corruption be above all things guarded againft ; and no magistrate is more liable to corruption, than a judge in whom is verted a power of determining appeals, without being either checked by aflbciates, or controlled by any further appeal to fuperior judges. The IcgiQature, in eftabhftiing the fupreme court of judicature here, though it be not a court of appeal, and though an appeal may be made from its decifions to the King in council, thought a plurality of judges necefiary ; and therefore created fo many, that it is not likely they mould be reduced by chance to one. Mr. Haftings and his council, when they erected the court of Sudder Dewannee Adawlut, would not leave fuch reduction in the power of chance , but made the prefence of three mem- bers eflcntially nrce0ary to a decifion. If I could believe it lawful and proper for us to delegate ( 23 ) delegate our judicial authority to judges of the fuprerne court, I mould think it ought ra- ther to be given to all than to one. If all the powers of the Sud^er Dewannee Adavvlut be vefted in one man, yet fo vetted " that they may be revoked whenever this board " mall think it proper to refume them," fuch a judge may become in the hands of corrupt council an inftrument of oppreflion. The council will not be anfwerable for his decrees , and he will be in a great meafure protected by his judicial capacity. The authority given may undoubtedly be re- voked, whenever the board mall think proper to refume it. The prefent board cannot bind their fucceflbrs, nor even themfelves, againit a change of opinion. But will the chief jufticc ' accept of fuch an office on fo precarious a foot- N ing ? or would it be refpectful in us to offer it to him, with the information, which ought to accompany it, viz* That he is removable at J any time by areiolution of the board. Revenue Revenue Department, Oftober 8th, 1780. t Sir EYRE COOTE, AS the determining upon points relative to law proceedings has fallen fo little within the limits of my profeflion, I acknowledge my- felf inadequate to the forming a thorough judgment concerning the plan propofed by the governor general : but trufling to his full knowledge of that branch of government, which he now means to bring under the con- troul of infpection, and from a real fenfe of the abilities of the chief juftice, to render any depart- ment of fuperintendance, which fhould be en- trufted to his charge, no lefs ufeful and beneficial in effect, than in idea, I give my aflent to the meafure, obferving at the fame time, however, that this aflent is for the trial of an expedient which may be attended with favorable confequences, and not for its abfolute eftablilh- ment, and I therefore referve to myfelf full liberty to vote for the repeal of the p relent re- folution, mould I find it prove hereafter in any refpect detrimental either to the great lines of government, or to the community. . C. THE END. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. Form L9-32m-8,'58(5876s4)444 UNIVERSITY OF CALIFORNIA AT 1158010453073 UC SOUTHERN REGIONAL A 000017699 o