« PreviousContinue »
THE ORIENTAL HERALD.
EAST INDIA COMPANY'S CHARTER.As this is likely to become the subject of investigation during the approaching Session of Parliament, we have thought it desirable to issue a Supplement with The ORIENTAL HERALD for December, .containing an entire copy of the Charter of the East India Company, as it now stands. The New QUARTERLY Review-devoted principally to the examination of Works connected with the Eastern World, the First Number of which is to appear with the New Year will be a valuable acquisition to the general reader, as well as to the political and commercial enquirer; and will, no. doubt, be very extensively read - Dow that the India- Question has become one of universal interest. - .
THE ORIENTAL HERALD.
No. 70.-OCTOBER, 1829.-Vol. 23.
“PROCEEDINGS BEFORE His Majesty's Privy COUNCIL, IN RE
LATION TO THE PETITION OF SIR John PETER GRANT."*
From the time when we first announced the misunderstanding between the Governor and Council of Bombay and the Judges of the King's Court, until the termination of the late proceedings before his Majesty's Privy Council, we have deemed it more becoming to observe a respectful silence, than to hazard any judgment on a question, involving considerations of so much difficulty and importance.
That we were at first shocked and alarmed at the intelligence, of what seemed to bear the character of an attempt, by the threat of armed resistance, to intimidate and overawe the Bench, we freely acknowledge. We do not affect to disguise a feeling of partiality to that second priesthood, whose duty it is to minister in the temple of Justice,' who seldom miss the right road by mistake, and have no temptation to depart from it by design, when the conscientious exercise of their exalted functions has been impeded by an arbitrary exertion of military power, but we owe it to the Government of Bombay to avow our more mature conviction, that however exceptionable may have been the mode by which they judged proper to effect their purpose—and most exceptionable we believe it to have been—however doubtful the policy of limiting a jurisdiction, the undue extension of which was the subject of their protest, they have not, in fact, misconstrued the charter by which the Supreme Court was constituted, and that in the matters of Moro Ragonath and Bappoo Gunness, their case, as u point of law, is completely established. Much as we regret this unfortunate collision between authorities, emanating from the same source, and bound in their several departments to have the same object of order, and good government in view—willingly as we assent to the opinion of the Chief Justice of Calcutta, that so long as the sovereign power of India is in the hands of the Company, it is in the worst taste to
* Printed for private circulation by the Hon. East India Company. Oriental Herald, Vol. 23,
consider its servants and the King's, as conflicting authorities; yet as this misfortune has already occurred, and the disputes arising from it have been judicially considered and decided, bound to acknowledge that the decree of the Privy Council appears to us to be fully borne out by the arguments of the Company's counsel, and that without the influence of considerations of political expediency, the points at issue have been decided according to the true intent and meaning of the charter by which the Bombay Judicature was established, and the Acts of Parliament on which it depends. The question, be it observed, as discussed before the Privy Council, was one of mere law, from which all views of public policy or personal conduct were carefully excluded. Of these, the latter were reserved, and justly, as we think, for the cognizance of the existing authorities; the former, for the consideration and judgment of Parliament; and the Privy Council, as the Lord Chancellor observed, had no object in assembling, but to ascertain the jurisdiction of the Court of Bombay.
The respective litigants being confined to this comparatively narrow range, we too might stand excused, if we sought for an apology to avoid the much larger problem of Indian policy, which the solution of the legal doubt can only for a short time defer ; but we cannot refrain from expressing our astonishment and regret, that Sir John Malcolm and his council should have so far forgotten the respect and reverence due to the Judicial character, as to pen the haughty mandate wbich they transmitted to the Supreme Court -a message, we confidently assert, which in the cool, deliberate intimation of determined resistance, is not surpassed by any specimen of insolent dictation, which the history of outraged law and justice has yet had occasion to attest. They had no right to beard the King's Judges by the capricious assumption of a power, to them, at least, not committed, of interpreting the Charter and the Act of Parliament; as well might they have marched a file of soldiers into the Court, as plot its discredit and degradation by the violent interruption of process issued after solemn argument at the bar : if remonstrance and expostulation were vain, it was their duty to have been aiding and assisting to the judges in the particular instance, reserving to themselves, when the argument of the advocate-general was overruled, their appeal to the authorities at home. Nothing surely could be more ill-judged than to court the scandal and disgrace of a contest at Bombay, when the matter might have been calmly and dispassionately settled at Whitehall. The inconvenience to Moro Ragonath or Pandurang Ramchunder of a journey from Poonah to the Presidency, sinks into insignificance when compared with the confusion which the affront to the King's Majesty in the person of his Judge, the unexplained decision of the Privy Council, and the recent indiscretion of Sir John Grant in closing the Court, must inevitably produce. The Governor should have known that the usefulness of legal, and indeed of all other authority, is gone, when it ceases to be maintained in credit and in honour. And of the Judge it is but justice to say, that with the exception of some peevish asperity of remark which might have been as well avoided, nothing was presented to their lordships which did not indicate a firmness and constancy of character, which a wise government would prize and honour, and a familiarity with the law and history of our constitution, from which an erroneous construction of an ambiguous statute no more detracts, than occasional mis-directions at Nisi Prius can disparage the learning and integrity of the English Bench. Sir John Grant was placed, by the death of his senior colleagues, in a situation of great embarrassment and responsibility. It was safer to adhere strictly to the path suggested, by a strong conviction of propriety, than to expose himself to censure by discretionary deviation from it. So long as he pursued that course, he remained in a position the respectability of which no disapproval of the government at home could possibly impair. We sincerely regret that he should have furnished an excuse, by bis subsequent proceedings, for the unseemly slight which would appear to have been intended, by the promotion of Mr. Dewar to the Chief Justiceship of Bombay.
In order to the correct apprehension of the precise points of difference between the Governor and Judges of Bombay, it will be useful to give a short sketch of the history of the king's courts in India, and of the charters by which their authority is ascertained. The first of these, granted to the East India Company by Charles II., in 1661, gave to the Governor and Council of all the Company's establishments, an absolute jurisdiction, civil and criminal, over all its servants, to be exercised according to the laws of England. This provision, with some trifling modifications, continued in force until the reign of George IV., when A. D., 1826, the Directors represented to the King, that there was great want at MadrasPatnam, Fort William, and Bombay, of a proper and competent authority for the more speedy and effectual administration of justice in civil causes, and for the trying and punishing of capital and other criminal offences and misdemeanours.
The object of this representation was to obtain permission to establish Mayor's Courts at the three Presidencies ; and in compliance with its prayer, his Majesty granted letters patent to the Mayor and Aldermen of the several factories, constituting them a court of Record, to determine all civil suits and actions between party and party, with an appeal to the local governments, which were by the same letters patent likewise constituted Courts of Record, and in all cases involving sums less than one thousand pagodas, of final adjudication. In cases of which the matters in dispute exceeded that amount, further appeals were authorised to the King in council. The Mayor's courts were at the same time empowered to grant probates of wills and letters of administration