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to new and foreign circumstances. For want of such experience England was destined to lose her colonies in the Western hemisphere. For want of it mistakes were committed which imperilled the empire she was building up in the East. The Regulating Act provided insufficient guidance as to points on which both the Company and the supreme court were likely to go astray ; and the charter by which it was supplemented did not go far to supply its deficiencies. The language of both instruments was vague and inaccurate. They left unsettled questions of the gravest importance. The Company was vested with supreme administrative and military authority. The Court was vested with supreme judicial authority. Which of the two authorities was to be paramount ? The court was avowedly established for the purpose of controlling the actions of the Company's servants, and preventing the exercise of oppression against the natives of the country. How far could it extend its controlling power without sapping the foundations of civil authority ? The members of the supreme council were personally exempt from the coercive jurisdiction of the court. But how far could the court question and determine the legality of their orders ?
Both the omissions from the Act and its express provisions were such as to afford room for unfortunate arguments and differences of opinion.
What law was the supreme court to administer? The Act was silent. Apparently it was the unregenerate English law, insular, technical, formless, tempered in its application to English circumstances by the quibbles of judges and the obstinacy of juries, capable of being an instrument of the most monstrous injustice when administered in an atmosphere different from that in which it had grown up.
To whom was this law to be administered ? To British subjects and to persons in the employment of the Company. But whom did the first class include ? Probably only the class now known as European British subjects, and probably not the native “inhabitants of India’ residing in the three
provinces, except such of them as were resident in the town of Calcutta. But the point was by no means clear 1.
What constituted employment by the Company ? Was a native landowner farming revenues so employed ? And in doubtful cases on whom lay the burden of proving exemption from or subjection to the jurisdiction ?
These were a few of the questions raised by the Act and charter, and they inevitably led to serious conflicts between the council and the court.
In the controversies which followed there were, as Sir James Stephen observes, three main heads of difference between the supreme council and the supreme court.
These were, first, the claims of the court to exercise jurisdiction over the whole native population, to the extent of making them plead to the jurisdiction if a writ was served on them. The quarrel on this point culminated in what was known as the Cossijurah case, in which the sheriff and his officers, when attempting to execute a writ against a zemindar, were driven off by a company of sepoys acting under the orders of the council. The action of the council was not disapproved by the authorities in England, and thus this contest ended practically in the victory of the council and the defeat of the court.
The second question was as to the jurisdiction of the court over the English and native officers of the Company employed in the collection of revenues for corrupt or oppressive acts done by them in their official capacity. This jurisdiction the Company were compelled by the express provisions of the Regulating Act to admit, though its exercise caused them much dissatisfaction.
The third question was as to the right of the supreme court to try actions against the judicial officers of the Company for acts done in the execution of what they believed, or said they believed, to be their legal duty. This question arose in the famous Patna case, in which the supreme court gave judgement with heavy damages to a native plaintiff in an action against officers of the Patna provincial council, acting in its judicial capacity. Impey's judgement in this case was made one of the grounds of impeachment against him, but is forcibly defended by Sir James Stephen against the criticisms of Mill and others, as being not only technically sound, but substantially just. Hastings endeavoured to remove the friction between the supreme court and the country courts by appointing Impey judge of the court of Sadr Diwani Adalat, and thus vesting in him the appellate and revisional control over the country courts which had been nominally vested in, but never exercised by, the supreme court. Had he succeeded, he would have anticipated the arrangements under which, some eighty years later, the court of Sadr Diwani Adalat and the supreme court were fused into the high court. But Impey compromised himself by drawing a large salary from his new office in addition to that which he drew as chief justice, and his acceptance of a post tenable at the pleasure of the Company was held to be incompatible with the independent position which he was intended to occupy as chief justice of the supreme court. In the year 1781 a Parliamentary inquiry was held into Amending
1 See In the matter of Ameer Khan, 6 Bengal Law Reports, 392, 443. · Nuncomar and Impey, ii. 237.
Act of the administration of justice in Bengal, and an amending 1781. Act of that year 1 settled some of the questions arising out of the Act of 1773.
The governor-general and council of Bengal were not to be subject, jointly or severally, to the jurisdiction of the supreme court for anything counselled, ordered, or done by them in their public capacity. But this exemption did not apply to orders affecting British subjects 2.
The supreme court was not to have or exercise any jurisdiction in matters concerning the revenue, or concerning any act done in the collection thereof, according to the usage
and practice of the country, or the regulations of the governorgeneral and council 3 21 Geo. III, c. 70. 2 See Digest, s. 106.
3 Ibid. s. 101.
No person was to be subject to the jurisdiction of the supreme court by reason only of his being a landowner, landholder, or farmer of land or of land rent, or for receiving a payment or pension in lieu of any title to, or ancient possession of, land or land rent, or for receiving any compensation or share of profits for collecting of rents payable to the public out of such lands or districts as are actually farmed by himself, or those who are his under-tenants in virtue of his farm, or for exercising within the said lands and farms any ordinary or local authority commonly annexed to the possession or farm thereof or by reason of his becoming security for the payment of rent.'
No person was, by reason of his being employed by the Company, or by the governor-general and council, or by a native or descendant of a native of Great Britain, to become subject to the jurisdiction of the supreme court, in any matter of inheritance or succession to lands or goods, or in any matter of dealing or contract between parties, except in actions for wrongsor trespasses, or in civil suits by agreement of the parties.
Registers were to be kept showing the names, &c., of natives employed by the Company.
The supreme court was, however, to have jurisdiction in all manner of actions and suits against all and singular the inhabitants of Calcutta 'provided that their inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans, by the laws and usages of Mahomédans, and in the case of Gentus by the laws and usages of Gentus ; and where only one of the parties shall be a Mahomedan or Gentu by the laws and usages of the defendant 1.
* This proviso was taken from Warren Hastings' plan for the administration of justice prepared and adopted in 1772, when the Company first 'stood forth as diwan.' It is interesting as a recognition of the personal law which played so important a part during the break-up of the Roman empire, but has, in the West, been gradually superseded by territorial law. As to the effect of this and similar enactments, see Digest, s. 108 and note thereon.
In order that regard should be had to the civil and religious usages of the said natives, the rights and authorities of fathers of families, and masters of families, according as the same might have been exercised by the Gentu or Mahomedan law, were to be preserved to them within their families, nor was any act done in consequence of the rule and law of caste, respecting the members of the said families only, to be held and adjudged a crime, although it might not be held justifiable by the laws of England.
Rules and forms for the execution of process in the supreme court were to be accommodated to the religion and manners of the natives, and sent to the Secretary of State, for approval by the king.
The appellate jurisdiction of the governor-general and council in country cases was recognized and confirmed in cautiously general terms. Whereas the governor-general and council, or some committee thereof or appointed thereby, do determine on appeals and references from the country or provincial courts in civil cases,' 'the said court shall and lawfully may hold all such pleas and appeals, in the manner and with such powers as it hitherto hath held the same, and shall be deemed in law a court of record ; and the judgements therein given shall be final and conclusive, except upon appeal to His Majesty, in civil suits only, the value of which shall be five thousand pounds and upwards.' The same court was further declared to be a court to hear and determine on all offences, abuses, and extortions committed in the collection of revenue, and on severities used beyond what shall appear to the said court customary or necessary to the case, and to punish the same according to sound discretion, provided the said punishment does not extend to death, or maiming, or perpetual imprisonment 1.
No action for wrong or injury was to lie in the supreme
See Harington's Analysis, i. 22. But it seems very doubtful whether the council or any of the council had in fact ever exercised jurisdiction as a court of Sadr Diwani Adalat. See Nuncomar and Impey, ii. 189.