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the cause of action exceeded 500 rupees, and where the said inhabitant had agreed in the contract that, in case of dispute, the matter should be heard and determined in the supreme court. Such suits or actions might be brought in the first instance before the supreme court, or by appeal from any of the courts established in the provinces.
This authority, though conferred in positive, not negative, terms, appears to exclude by implication civil jurisdiction in suits by British subjects against 'inhabitants of the country, except by consent of the defendant, and is silent as to jurisdiction in civil suits by 'inhabitants' against British subjects, or against other inhabitants.'
An appeal against the supreme court was to lie to the king in council, subject to conditions to be fixed by the charter.
All offences of which the supreme court had cognizance were to be tried by a jury of British subjects resident in Calcutta.
The governor-general and council and the chief justice and other judges of the supreme court were to act as justices of the peace, and for that purpose to hold quarter sessions.
Liberal salaries were provided out of the Company's revenues for the governor-general and his council and the judges of the supreme court. The governor-general was to have annually £25,000, each member of his council £10,000, the chief justice £8,000, and each puisne judge £6,000.
The governor-general and council were to have powers 'to make and issue such rules, ordinances, and regulations for the good order and civil government' of the Company's settlement at Fort William, and the subordinate factories and places, as should be deemed just and reasonable, and should not be repugnant to the laws of the realm, and to set, impose, inflict, and levy reasonable fines and forfeitures for their breach.
But these rules and regulations were not to be valid until duly registered and published in the supreme court, with the assent and approbation of the court, and they might, in effect, be set aside by the king in council. A copy of them was to be kept affixed conspicuously in the India House, and copies were also to be sent to a secretary of state.
The remaining provisions of the Act were aimed at the most flagrant of the abuses to which public attention had been recently directed. The governor-general and members of his council, and the chief justice and judges of the supreme court, were prohibited from receiving presents or being concerned in any transactions by way of traffic, except the trade and commerce of the Company.
No person holding or exercising any civil or military office under the Crown or the Company in the East Indies was to receive directly or indirectly any present or reward from any of the Indian princes or powers, or their ministers or agents, or any of the nations of Asia. Any offender against this provision was to forfeit double the amount received, and might be removed to England. There was an exception for the professional remuneration of counsellors at law, physicians, surgeons, and chaplains.
No collector, supervisor, or any other of His Majesty's subjects employed or concerned in the collection of revenues or administration of justice in the provinces of Bengal, Behar, and Orissa was, directly or indirectly, to be concerned in the buying or selling of goods by way of trade, or to intermeddle with or be concerned in the inland trade in salt, betelnut, tobacco or rice, except on the Company's account. No subject of His Majesty in the East Indies was to lend money at a higher rate of interest than 12 per cent, per annum. Servants of the Company prosecuted for breach of public trust, or for embezzlement of public money or stores, or for defrauding the Company, might, on conviction before the supreme court at Calcutta or any other court of judicature in India, be fined and imprisoned, and sent to England. If a servant of the Company was dismissed for misbehaviour, he was not to be restored without the assent of three-fourths both of the directors and of the proprietors.
If any governor-general, governor, member of council, judge of the supreme court, or any other person for the time being employed in the service of the Company, committed any offence against the Act, or was guilty of any crime, misdemeanour, or offence against any of His Majesty's subjects, or any of the inhabitants of India, he might be tried and
punished by the Court of King's Bench in England. Charter The charter of justice authorized by the Regulating Act constitut
was dated March 26, 1774, and remained the foundation of ing
the jurisdiction exercised by the supreme court at Calcutta supreme
until the establishment of the present high court under the Calcutta.
Act of 18611. The first chief justice was Sir Elijah Impey.
His three colleagues were Chambers, Lemaistre, and Hyde. Diffi- Warren Hastings retained the office of governor-general culties arising out until 1785, when he was succeeded temporarily by Sir John of Regu.. Macpherson, and, eventually, by Lord Cornwallis. His appointlating Act.
ment, which was originally for a term of five years, was continued by successive Acts of Parliament. His administration was distracted by conflicts between himself and his colleagues on the supreme council, and between the supreme council and the supreme court, conflicts traceable to the
defective provisions of the Regulating Act. Ditti- Of Hastings' four colleagues, one, Barwell, was an exculties
perienced servant of the Company, and was in India at the council.
time of his appointment. The other three, Clavering, Monson, and Francis, were sent out from England, and arrived in Calcutta with the judges of the new supreme court.
Barwell usually supported Hastings. Francis, Clavering, and Monson usually opposed him. Whilst they acted together, Hastings was in a minority, and found his policy thwarted and his decisions overruled. In 1776 he was reduced to such depression that he gave his agents ia England a conditional authority to tender his resignation. The Court of Directors accepted his resignation on this authority, and took steps to supply his place. But in the meantime Clavering died
Copy printed in Morley's Digest, ii. 549.
(November, 1776) and Hastings was able, by means of his casting vote, to maintain his supremacy in the council. He withdrew his authority to his English agent, and obtained from the judges of the supreme court an opinion that his resignation was invalid. These proceedings possibly occasioned the provision which was contained in the Charter Act of 1793, was repeated in the Act of 1833, and is still law, that the resignation of a governor-general is not valid unless signified by a formal deed 1. The provisions of the Act of 1773 are obscure and defec- Diffi
culties tive as to the nature and extent of the authority exerciseable
between by the governor-general and his council, as to the jurisdic- supreme
council tion of the supreme court, and as to the relation between and
supreme the Bengal Government and the court. The ambiguities court. of the Act arose partly from the necessities of the case, partly from a deliberate avoidance of new and difficult questions on constitutional law. The situation created in Bengal by the grant of the Diwani in 1765, and recognized by the legislation of 1773, resembled what in the language of modern international law is called a protectorate. The country had not been definitely annexed ?; the authority of the Delhi emperor and of bis native vicegerent was still formally recognized ; and the attributes of sovereignty had been divided between them and the Company in such proportions that whilst the substance had passed to the latter, a shadow only remained with the former. But it was a shadow with which potent conjuring tricks could be performed. Whenever the Company found it convenient, they could play off the authority derived from the Mogul against the authority derived from the British law, and justify under the one proceedings which
1 See 3 & 4 Will. IV, c. 85, 8. 79. Digest, s. 82.
2 On May 10, 1773, the House of Commons, on the motion of General Burgoyne, passed two resolutions, (1) that all acquisitions made by military force or by treaty with foreign powers do of right belong to the State ; (2) that to appropriate such acquisitions to private use is illegal. But the nature and extent of the sovereignty exercised by the Company was for a long time doubtful. See Mayor of Lyons v. East India Company, 3 State Trials, new series, 647, 707 ; 1 Moore P. C. 176.
it would have been difficult to justify under the other. In the one capacity the Company were the all-powerful agents of an irresponsible despot ; in the other they were tied and bound by the provisions of charters and Acts of Parliament. It was natural that the Company's servants should prefer to act in the former capacity. It was also natural that their Oriental principles of government should be regarded with dislike and suspicion by English statesmen, and should be found unintelligible and unworkable by English lawyers steeped in the traditions of Westminster Hall.
In the latter half of the nineteenth century we became familiar with situations of this kind, and we have devised appropriate formulae for dealing with them. The modern practice has been to issue an Order in Council under the Foreign Jurisdiction Act, establishing consular and other courts of civil and criminal jurisdiction, and providing them with codes of procedure and of substantive law, which are sometimes derived from Anglo-Indian sources. The jurisdiction is to be exercised and the law is to be applied in cases affecting British subjects, and, so far as is consistent with international law and comity, in cases affecting European or American foreigners. But the natives of the country are, so far as is compatible with regard to principles of humanity, left in enjoyment of their own laws and customs. If a company has been established for carrying on trade or business, its charter is so framed as to reserve the supremacy and prerogatives of the Crown. In this way a rough-and-ready system of government is provided, which would often fail to stand the application of severe legal tests, but which supplies an effectual mode of maintaining some degree of order in uncivilized or semi-civilized countries ?.
But in 1773 both the theory and the experience were lacking, which are requisite for adapting English institutions
See the Orders in Council under the successive Foreign Jurisdiction Acts, printed in the Statutory Rules and Orders Revised, and the charters granted to the Imperial British East Africa Company (Hertslet, Map of Africa by Treaty, i. 118), to the Royal British South Africa Company (ibid. i. 274), and to the Royal Niger Company (ibid. i. 446).