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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 of 1774 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 1861! 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
alising out until 1785, when he was succeeded temporarily by Sir John
of Regu.. Macpherson, and, eventually, by Lord Cornwallis. His appoint-
lating Act.

ment, which was originally for a term of five years, was
continued by successive Acts of Parliament. His adminis- .
tration 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. Diffi.

Of Hastings four colleagues, one, Barwell, was an ex. culties

perienced servant of the Company, and was in India at the
in 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.

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(November. 1770) 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? The provisions of the Act of 1773 are obscure and defec- Difti

culties tive as to the nature and extent of the authority exerciseable

between by the governor-general and his council, as to the jurisdie 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 difticult questions on constitutional law. The situation created in Bengal by the grant of the Diwani in 1705, and recognized by the legis. lation 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

See 3 & 4 Will. IV, c. 85, s. 79. Digest, s. 82. * 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 ure is illegal. But the nature and extent of the sovereignty exercised by the Company was for a long time doubtful. See Mayor of Lyems v. Last Indiu Company, 3 State Trials, new series, 647,707 : 1 Moore P. C. 176.

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ut Parliament, End prefer to Lai their

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to new and foreign circumstances. For want of such ex. perience 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 thə 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

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segona part 24

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