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
<c of all fees of office, perquifites, emolu-
<c ments and advantages, whatfoever: and
<* that no fees of office, perquifites, emo-
" luments, or advantages whatfoever {hall
" be accepted, received, or taken, by fuch
<e governor general and council, or by fuch
" chief juftice and judges, as aforefaid,
or any of them in any manner, or
<c on any account or pretence whatfoever,
other than fuch falaries and allowances,
as are in and by this aft, directed to be
* c paid to them refpeclively.
Extraft
tf from the Charter of Juflice, grant-
ed by His Majejly, the 26*6, Day of
1774.
" TT^HE court of directors of the faid
JL united company (hall, and they are
*' hereby required to direct, and caufe to be
11 paid, certain and eftablifhed falaries, to
<c the faid chief juftice, and each of the
" judges of fuch fupreme court of judicature,
" at Fort William in Bengal, as mall be by
Cc the faid new charter eftablifhed, that is to
<c fay, to the chief juftice, eight thoufand
" pounds by the year, and to each of the
"judges of the faid fupreme court of judica-
" ture, at Fort William in Bengal, fix thou-
<c fand pounds by the year, and that fuch
" falaries fhall be paid, and payable to each
" and every of them refpedively, for the
" time being, out of the faid territorial acqui-
* c fitions, in the kingdoms of Bengal, Bahar,
<f and
" and Oriffa ; fuch falaries to take place and
<c commence, in refpect of all fuch perfons,
" who mall be refident in Great Britain at the
" time of their appointment, from the day
" on which fuch perfons (hall embark from
" Great Britain ; and fuch falaries to be in lieu
" of all fees of office, perquifites, emoluments y
' and advantages ivhatfoever, as by the laid
** act may more plainly and largely appear.
AUTHENTIC
AUTHENTIC COPY
O F T H E
P R O C E E D I N G S, &c.
Revenue Department. 2gth Sept. 1780.
GOVERNOR GENERAL,
THE inftitution of the new courts of
Dewannee Adawlut has already given
occafion to very troublefome and alarming
competitions between them and the provincial
councils, and to much wafte of time at this
board. 1 hefe, however, manifeft the neceffity
of giving a more than ordinary attention to
thefe courts in the infancy of their eftablifh*
mem, that they may neither prevent the pur-
pofes nor exceed the limits of their jurifdidlion,
nor fuffer encroachments upon it.
To effect thefe points would require fuch a
laborious and alrnoft unremitted application,
that, however urgent or important they may
appear, I ihould dread to bring them before
the confutation of the board, unlefs I could
propofe fome expedient for that end, that
fliould not add to the weight of bufmefs with
which it is already overcharged.
B That
/
That which I have to offer, will I hope prove
rather a dimunition of it.
By the conftitution of the Dewannee courts,
they are all made amenable to a fuperior court
called the Sudder Dewannee Adawlut, which
has been commonly but erroneoufly underftood
to be (imply a court of appeals it's province
is and neceffarily mud be much more extenfive.
. It is not only to receive appeals from the decrees
of the inferior courts in all caufes exceeding a
certain amount, but to receive and revife all the
proceedings of the inferior courts ; to attend to
their conduct j to remedy their defecls, and
generally to form fuch new regulations and
checks as experience {hall prove to be neceflary
to the purpofes of their inftitution.
Hitherto the board has referved this office to
itfelf, but hath not yet entered in the execution
of it, nor, I will venture to pronounce, willi$
ever with effect, though half of it's time were de-
yoted to this imgle depart orient.
Yet without both the fupport and controul
of fume powerful authority held over them, it
is impoflible for the courts to fubfift, but they
muft either fink into contempt, or be perverted
into the inftruments of opprefiion.
This
t 3 )
This authority I repeat the board is incapable
of exercifing, and if delegated to any body of
men, or to any individual agent* not pofleffing
in themfelves feme weight independent of mere
official power, it will prove little more effectual;
The only mode which I can clevife to fubftirute
for it, is included in the following morions,
which I now fubrnit, on the reafons premifedj
to the confideration of the board.
That the chief juftice be requefted to accept
of the charge and fuperintendency of the office
of Sudder Dewannee Adawlut under it's prefent
regulations, and fuch other as the board fhall
think proper to add to them, or to fubftitute
in their ftead, and that on his acceptance of it,
he be appointed to it, and ftiled the judge of
the Sudder Dewannee Adawlut;
I fhall beg leave to add a few words in fup-*
port of this propofnion on different grounds.
I am well aware that the choice which I have
made for fo important an office, and one which
will minutely and narrowly over'ook every rank
of the civil fervice, will fubject me to much,
popular prejudice, as it's real tendency will be
mifunderftood by many, mifreprefented by more,
and perhaps dreaded by a few. I ihall patiently
B 2 fubmic
( 4 )
fubmit to this confequence, becaufe I am eon-
fcious of the rectitude of my intentions, and cer-
tain that the event will juftify me, and prove
in that whatever light it may be fuperficially
received, 1 (hall be found to have ftudied the true
intereft of the fervice, and contributed the moft
effectually to its credit.
The want of legal powers except fuch as are
implied in very doubtful conftructions of the
act of parliament; and the hazards to which the
fuperiors of the Dewanny courts are expofed in
their own p'erfons, from the exercife of their
functions, has been the principal caufe of
their remifsnefs, and equally of the difregard
which has been in many inftances (hewn to
their authority. They will be enabled to act
with confidence, nor will any man dare to conteft
their right of a&ing when their proceedings are
held under the fanction and immediate patronage
of the firft member of the lupreme court, and
with his participation in the inftances of fuch as
are brought in appeal before him, and regulated
by his inductions. They very much require
an intlructor, and no one will doubt the fuperior
qualifications of the chief juftice for fuch a
duty.
It will be a means of leflening the diftance
between the board and the fupreme court, which
has
( $ )
has perhaps been, more than the undefined
powers afTumed ro each, the caufe of the want of
that accommodating temper, which ought to
have influenced their intercourfe with each other.
The contefts in which we have been unfortuna-
tily engaged with the court bore at one time fo
alarming a tendency, that I believe every mem-
ber of the board foreboded the mod dangerous
confcquences to the peace and reiburces of
this government from them. They are at prefent
Compofed, but we cannot be certain that the
calm will lad beyond the actual vacation, fmce
the fame grounds and materials of difunion
fubfift 5 and the revival of it at a time like this
added to our other troubles might, if carried to
extremities, prove fatal.
The propofition which I have fubmitted to
the board, may, nor have I a doubt that it will,
prove an inftrument of conciliation with the
court, and it will preclude the necefllty of its
afiuming a jurifdiction over perfons exempted
by our construction of the act of parliament from
it. It will facilitate and give vigour to the
courfe of jullice j it will leffen the cares of the
board and add to their leifure for occupations
more urgent and better fuited to the genius antf
principles of government : nor will it be any
scceffion
( 6 )
acceffion of power to the court, where that
portion of authority which is pr pofed to be
given, is given only to a fingle man of the court,
and may be revoked whenever the board (hall
think it proper to refume it.
Revenue Department, Oftober, 1780.
NO one can be more fincerely defirous
than I am of the due adminiftration of
juftice in this country. By the late act of
parliament, this branch is divided between the
fupreme court and the government : what the
aft hath not committed to the former, it confirms
to the latter ; and wherever the extent of the
refpective jurifdictions is not clearly defined, or
is oppofitely viewed, there mutual Candour and
regard to the publick good fhould influence;
Through thefe channels only can juftice flaw
here.
This board, in the late inftitution of Dewan-
nee courts of Adawlut, hath thought itfelf acting
within the province left to it by the legifiature ;
and making an effective regulation for the
benefit
( 7 )
benefit of the country. I am forry to find
the govenor general's minute, that he now fees
the inftitution in a different light in both thefe
refpedls. He conceives that '* the fuperiors of
* c the Adawiets have no legal powers, txccpj
*' fuch as are implied in very doubtful conftruc,
" tions of the act of parliament " and that the
court of appeals eftablimed to controiil their
proceedings, and fupport their authority, can
never prove effectual for thefe purpofes. If the ^
inftitution has really thefe evils in it, I am will-
ing to deliberate upon proper remedies for them ;
to reduce it if it has exceeded the due limit, or
if it is found to be eflentially defective, to agr\.e
to an eflf. ntial change in it. But at prefent I *.
onuft confefs thefe pofrtions are not evident to
me, and fuppofmg them to be cftablifhed, in /\
the application of remedies, we can have no
ftandard but the lines marked out by the aA of
parliament, which affigns a feparate juriidiction
to each of the two departments, or implies the
duty of a co-operation of both.
Altho* I entertain all due deference for the
chief juftice, and feel myfelf embarrafled by the
perfonality which mixes in the qutftion before
us, yet I muft beg leave to fay, that the expedient
propofed by the governor general feems not to
fall in with any of the intentions of the act,
but
C 8 ) ,
but to be oppofed by difficulties, as well as to
threaten confequences, which unlefs obv.Jted
muft determine me to withhold my afltrnr to if.
Some of the prefent difficulties are thefe.
Firft. If rhe governor general and council have
no other legal power to appoint fuperimendams
of the Adawlet than what is implied from a
doubtful coxftruffion of the act of parliament,
then they fhouid not have proceeded to an
eftrfblifh.oent of fuch importance, nor fhould
they now per lift in it, -their bufinffs in fuch
cafe is to act in concert with the court,
2'dly. If they have not in themfelves com-
petent power for this eft a bli foment, then in like
manner they are not competent to confer upon
any individual that authority, with which it is
now propofcd to inveft the perfon of the chief
juftice,
jdly. Unlefs the chief juftice acknowledges
the validity of the board's inftitution (which
will be a great authority againft the governor
general's argument) he cannot confidently
accept of the office propofed for him. And the
fame remark may be extended to the opinions
of the other judges. His acceptance of an
office cannot eftablifh the legality of the power
that confers it.
( 9 )
4thly, The union of different powers in the
perfbn of the chief juftice can be no reguhr
conciliation of the two departments. The in-
terpofition of his perfori may indeed prevent
their clafhing for a time, but this effects no real
adjuftment of principles between them. And
it does not feem allowable for us to conclude
that a particular diftinction (hewn to the chief
juftice will fupprefs all oppofition of fentiment
from the other judges, nor does this mode of
procuring peace, if it fhould fucceed, appear
the rnoft honourable or fafe for ourfelves -, for,
after delegating fo much power, both depart-
ments are ft ill left expofed, at the pleafure of the
chief juftice, to the future eruption of their un-
extinguiflbed differences.
5thly, If for the purpofes of conciliating the
court, and giving efficacy to the Adawluts,
fuch an authority is to be beftowecl, it would
feem that thefe purpofes would be better an-
fwered, and all danger of infringing the act of
parliament avoided, by delegating the power of
hearing appeals to all the judges of the fupreme
court, or aflbciating them with ourfelves, and
holding fuch power in conjunction with them,
which falls in with one part of the bill tranfmic- ^
ted to the court of directors in the year 1776. *
C 6:hly,
(10 )
6thly, By an appointment of this nature,
the indrpcnJcncy of both departments may b?
endangered. By leparating the members from
their departments, a fyftem of mutual influence,
which may occafionaily operate too powerfully
upon each, is at once founded.
7thly, Such an union of different powers is
Beyond the icope of the act of parliament; and
foreign to the conttitution of the company's
government. A great falary, high rank, and
confideration are annexed to the office of chief
jjuitice, moft probably upon the fuppofition that
th^ perfon advanced to it, could here receive no
augmentation in any of thefe things; and it
feems inconfiftent with his appointment from
the king, which makes him independant, to
accept of another appointment during the
pleafureof this board.
Sthly, In the office propofed to be given to
the chief juftice, it doth not appear how he can
be held under either controul or refponfibility.
He cannot be feparated from the privileges of his
original office ; yet the exercife of them in all
that relates to the new appointment muft be
quite dilcretionary with him.-r-The apprehen-
fions, which I entertain and have alluded to in,
tr^e former part of the minute^ are thefe.
Firft,
( it )
Firft, That it will be thought requifite, if
this appointment takes place, to annex a large
falary to it, and an ample eilablifhment. In
our prefent ftate, when we can hardly raife
money for our neceffary occafions, I fhould
think fuch an expence utterly inadmifiible.
adly, Decifions might probably go upofi
the principles of Englilh law. The introduction
of this practice mould, in my humble opinion,
be previoufly and maturely confidered*
3dly, If attorneys and folicitors ftiould be
admitted to practice in the court of appeals, a v /
new and wide door of litigation would be open-
ed. The company have no controul over
attornies and folicitors.
4thly, The bufinefs of the court of appeals
muft give opportunity fora thorough infpectiori y
of all the affairs of the revenue proceedings of
the provincial councils : of courfe a very power-
ful influence over both Europeans and natives*
5thly, Such an influence poflefled by the
chief juftice of the fupreme court might too y
much hide the government from the eyes of the
natives*
Waving
-;
( 12 )
Waving further objections, I now repeat my
\vifh to fee thefe obviated j and whatever may
be wanting for an effectual controul over the
country courts fupplied. If the fervice, indeed,
Ihould require an extraneous check, delicate
and importent as this point is, I would by no
means have it underftood that I would oppofe it ;
but before this is applied, I think feveral other
expedients might be tried* ift, The company's
chief Jaw officer here feerns to be the perfon to
whom recourfe Ihould firft be had, his ftation
being fimilar to that of the company's in
England, who attends on all queftions of law,
and gives his opinion and advice. I think that
by introducing in the fame manner the advocate
general into the court of appeals, the bufmefs
of that court might be made eafy to the mem-
bers of the board : and I mnft think alfo that
if fuch an officer, as judge of the court of ap-
peals, mould be created, be has the moft natural
right to it,
adly, The fuprente court and the governor
general and council might fit together as a
court of appeals according to the principles of
the bill already mentioned.
3dly, The objections againft the chief juftice
lie with lefs force, againft either of the inferior
judges :
( .3 )
judges : and 4thly, leaft of all againft the pre*
fidence of all the judges in rotation.
Revenue Department, 3d, O&ober, 17869
Mr. FR4NCIS,
I HAVE not had time to give to this impor-
tant propofition all the confideration it de-
ferves. The reflections, which it fuggefls,
mull be ftated hallily as they occur.
That it is a frefh innovation, fucceeding.
many others, in the adminiftration of juftice to
the natives of this country, is of itfelf a weighty
objection. All innovations of this nature arc
dangerous, efpecially in a country, whole
government cannot divide, or furrender any of
its powers, without lefTening the refpect, and
hazarding the obedience of its fubjedts. On this
principle, we contended for the exclufive jurif-
diclion of the governor general and council, as
Dewan, over the Zemindars, landholders, and
landed property of this country. In my judg-
ment, the propofition amounts to a direct con-
tradiclion, or defertion of every thing we faid,
or did, in the cafe of the Rajah of Coffeejurah :
as
( U )
as fuch it will be naturally received and undef-
ftood by the natives. They cannot diftinguifh
between the chief juftice and the fupreme
courts ; or if the distinction could pofiibly be
explained to them, and if they could be fatisfied
that in fad it was not intended to reinftate the
court in the exercife of the jurifdiclion which it
had claimed, and which we had refilled, it is
probable they would think that fomc greater
evil was to befall them.
I hope it is unnecefiary for me to fay, that
no idea of perfonal difrefpec~l to the chief juftice
can be intended in any thing I (hall offer on the
public queftion before me. If any expreflion,
that may appear to have fuch a tendency Ihould
efcape me, I difclaim it. I mean to examine
the propofed inftitution on its own merits, and
the difficulties it may be fubject to, as a public
meafure, without reference to the perfonal
character, or qualifications of any individual.
I mail follow the reafoning of the governor
general's minute in the order in which he has
placed it.
i ft. If the inftitution of the new courts has
already given occafion to competitions between
the provincial councils and the Duanny Adaw-
luts, it is our bufmefs and duty to put an end
to
( '5 )
to them by our authority, which is direct and
fufficiently coercive over both parties. We
ought to draw the line between them, and infift
on their refpe&ive fubmifllon to the limitation
defcribed by it. I do not think that, to effect
this point, would require any very laborious
application on our part. Our adminiftration
wants vigour, not time, to execute all its duties, / j
One punifhment would have more effect than a
thoufand regulations. But, if the argument
were well founded, how is the difficulty re^
moved by transferring this laborious fervice to
the chief juftice, who is already fo overloaded
with the bufinefs of the fupreme court, that he
finds it impoflible to affift his brethren, as
acting juftices of Calcutta, and therefore is
very juftly excufed from (baring with them in
the toij of that troublefome office.
adly, The Sudder Dewannee Adawlut I know
has been commonly, but I do not think it is
erroneously, underftood to be fimply a court of v
appeals. The 6th article of the plan for the
adminiftration of juftice provides, that the De-
wanny Sudder Adawlut Jhall receive and determine
appeals from the provincial Dewanny Adawluts ;
and it fays no more. If its province be and
neceffarily muft be tpuch more extenfive, the ex-
tent of it (hould be accurately defcribed and
defined.
C 16 )
defined. For my own part, I know not where
to look for this necefiary definition ; but I know-
that a jurifdiction, not fo defined, either has no
power at all, or it is defpotic. A court of ap-
peal, as fuch, can do nothing but receive ap-
peals from the decrees of inferior courts : if it
^ is to receive and revife all the proceedings of
fuch courts, it muft itfelf ceafe to be a court of
.appeal; for what fuitor will appeal to a fupe-
rior court, which has already revifed, approved,
and confirmed the very proceedings by which
he thinks himfelf injured. If a court of appeal
adheres to the true principle of its inftitution,
it fhould know nothing of the proceedings of
the inferior court, until an appeal from the de-
cree of that court comes regularly before it. If
k has already approved of the proceedings be-
low, it is inftanter a party, and cannot be judge.
As to the other duties propofed <c of attending
* to their conduct, of remedying their defects,
< and forming new regulations, &c. " thefe are
objects for the legiflative power of the country,
which I underftand, qu&. ad hoc at lead, is ex-
clufively and unalienably veiled in the governor
general and council.
gdly, I am of opinion that the office might
be exercifed by the board, or by any two mem-
bers of it, and that two or three fpecific days,
allowed
c 17 )
allotted in a month to this duty, would be fuf*
ficient to perform it*
4thly, I muft object to the requeft pfopofed
to be made to the chief juftice, for the follow-
ing reafons : The governor general and coun- >/
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.
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