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?11611, in which the supreme court gave judgement ins :to a native plaintiff in an action against ostin t'i the provincial council, acting in its judicial

I'm indument in this case was made one of the iride of is 13***1' 110111 ag inst him, but is forcibly defended Ens J.??"p3 Strophen against the criticisms of Mill and

19bring not only technically sound, but substantially jent. I tiny endeavoured to remove the friction between hiperte pole-me court and the country courts by appointing Impey ud of the court of Sadr Diwani Adalat, and thus vesting inling 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

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.

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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 ?

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.

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court against any person whatsoever exercising any judicial office in the country courts for any judgement, decree, or order of the court, nor against any person for any act done by or in virtue of the order of the court.

The defendants in the Patna case were to be released from prison on the governor-general and council giving security (which they were required to do) for the damages recovered in the action against them; and were to be at liberty to appeal to the king in council against the judgement, although the time for appealing under the charter had expired.

The decision of Parliament, as expressed in the Act of 1781, was substantially in favour of the council and against the court on all points. Sir James Stephen argues that the enactment of this Act 'shows clearly that the supreme court correctly interpreted the law as it stood 1.' But this contention seems to go too far. A legislative reversal of a judicial decision shows that, in the opinion of the legislature, the decision is not substantially just, but must not necessarily be construed as an admission that the decision is technically correct. It is often more convenient to cut a knot by legislation than to attempt its solution by the dilatory and expensive way of appeal.

The Act of 1781 contained a further provision which was of great importance in the history of Indian legislation. It empowered the governor-general and council ‘from time to time to frame regulations for the provincial courts and councils.' Copies of these regulations were to be sent to the

. Court of Directors and to the Secretary of State. They might be disallowed or amended by the king in council, but were to remain in force unless disallowed within two years.

On assuming the active duties of revenue authority in Bengal in 1772, the president and council had made general regulations for the administration of justice in the country by the establishment of civil and criminal courts. And by the Regulating Act of 1773 the governor-general and council

1 Nuncomar and Impey, ii. 192.


were expressly empowered to make rules, ordinances, and regulations. But regulations made under this power had to be registered in the supreme court 1, with the consent and approbation of that court. In 1780 the governor-general and council made regulations, in addition to those of 1772, for the more effectual and regular administration of justice in the provincial civil courts, and in 1781 they issued a revised code superseding all former regulations. If these regulations were made under the power given by the Act of 1773 they ought to have been registered. But it does not appear that they were so registered, and after the passing of the Act of 1781 the governor-general and council preferred to act under the powers which enabled them to legislate without any reference to the supreme court. However, notwithstanding the limited purpose for which the powers of 1781 were given, it was under those powers that most of the regulation laws for Bengal purported to be framed. Regulations so made did not require registration or approval by the supreme court. But it was for some time doubtful whether they were binding on that court 2. The Act of 1781 for defining the powers of the supreme Further

legislation court was not the only legislation of that year affecting the of 1781. East India Company. The Company had by 1778 duly repaid their loan of £1,400,000 from the Exchequer, and they subsequently reduced the bond debt to the limits prescribed by an Act of that year. By an Act passed in 1781 4, the Company were required to pay a single sum of £400,000 to the public in discharge of all claims to a share in their

As French laws had to be registered by the Parlement, and as Acts of Parliament affecting the Channel Islands still have to be registered by the Royal Courts.

? See Cowell's Tagore Law Lectures, 1872, and In the matter of Ameer Khan, 6 Bengal Law Reports, 392, 408. The power of legislation was recognized and extended in 1797 by 37 Geo. III, c. 142, s. 8. See below, p. 71.

3 19 Geo. III, c. 61.

+ 21 Geo. III, c. 65. The Company were unable to meet the payments required by this Act, and successive Acts had to be passed for extending the terms fixed for payment (22 Geo. III, C. 51; 23 Geo. III, cc. 36, 83 ; 24 Geo. III, sess. 1, c. 3).


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