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in cases of intestacy; and the government courts were further constituted courts of Oyer and Terminer, and required to hold quarter sessions, for the trial of all offences except high-treason.
On the restoration of Madras, which had been captured in 1746 by the French, the charter granted to the Company was (1753) surrendered, and a new one granted to them by letters patent, which empowered them to establish a Court of Requests for the determination of causes of action, not exceeding five pagodas, and invested the Court of Directors with the power of making byelaws, rules and ordinances, for the good government and regulation of the several Courts of Judicature established in India.
In this state, things remained until the year 1772, when during the administration of Lord North, the affairs of the East India Company came under the consideration of parliament. A knowledge of the events of this period appears to us particularly useful elucidating the points recently discussed in the Privy Council, because in the succeeding year, 1773, the Supreme Court of Bengal, on which the other two are modelled, was first established. It is admitted, that if the charter by which the court at Calcutta was established, did not authorise its judges to issue writs of Habeas Corpus, under the circumstances in which the court of Bombay has asserted that power, that the construction put upon the charter by the Governor and Council was right, and that the Court has exceeded its jurisdiction. Among the measures devised at that period for correcting the abuses, and giving vigour to the conduct of the Company's affairs, was the introduction of a new system of jurisprudence, by which their Native subjects might be protected from the excesses of their servants, the security of liberty and property established, and the misconduct of their agents too far removed from the seat of supreme power, to be awed by its supervision, corrected and restrained. For this purpose, a Bill was brought into the House of Commons by Mr. Sullivan, a Director of the Company, the object of which was to engraft on the Regulating Act, then under consideration, a scheme for the administration of justice in India, the principal feature of which was the establishment of a Supreme Court of Judicature, with civil, criminal, and ecclesiastical jurisdiction at Calcutta, with an appeal in the first instance to the Bengal government, and thence to the King in Council. This bill having been lost on a division, and a committee appointed to inquire into the nature and state of the East India Company, and of their affairs in the East Indies, nothing further was done in the matter, until, in 1773, the Company being compelled to apply to parliament for pecuniary assistance, added to their petition an assurance that they would forth with consider, and propose such regulations as might appear proper and essential for the due administration of justice in India. In conformity with this intention, the Court of Proprietors came to various resolutions, on which a petition to parliament was afterwards founded, and leave
solicited to bring in a bill to carry its suggestions into effect. As this motion was made on the very day when leave was given to Lord North to introduce a bill for establishing certain regulations for the better management of the affairs of the East India Company in India and in Europe, which afterwards passed into a law, it would be unnecessary to refer to any part of the Company's petition, were it not that it was expressly proposed by it to introduce the protection of Habeas Corpus into India.
As far as can be collected from the debates on the Bengal Judicature Bills in 1773 and 1781, the chief objection on the part of ministers to the arrangements proposed by Mr. Sullivan, was the power vested by his bill in the Company, of nominating the Judges of the Court. This right was indeed controlled by a provision that their appointment should be subject to the approval of the Lord Chancellor and the three Chief Justices for the time being; but this limitation by no means satisfied the opponents of the bill, who insisted that the privilege of appointing Judges was the unalienable prerogative of the Crown,-a position which they maintained rather on the ground of abstract principle, than by considerations of political expediency. ‘Lord North's bill passed the House of Commons by an immense majority, and the petition against it, preferred by the Company to the Lords, represented, among other allegations, that “the material effects of preventing oppressions in India, by establishing a respectable court of justice on the spot, must be defeated by the bill, since the persons who might be supposed to commit such oppressions were exempted from the jurisdiction of the Court, and consequently left without restraint; and further, that the most effectual provision, of all others, to prevent oppressions, which was recommended by the Company, viz. that of the Habeas Corpus, whereby men might know of what crime they were accused, and by whom imprisoned, was omitted, by which means all the tyranny of a double government, without responsibility any where, would be entailed on the inhabitants.” No trace of any intention to defer to their wishes in this respect can be discovered in the Act of Parliament or the Charter ; and surely the history of the bill precludes alike the supposition of implied enactment or unintentional omission. It can never be contended, after a bill to introduce the Habeas Corpus into India, was rejected on that account by Parliament, and another on the same day introduced, against which the Company, on the ground of its omission, protested, that it was the intention of the Legislature, in 1773, to confer on the Supreme Court at Fort William the jurisdiction now claimed by the Judges of Bombay. If the Bengal Charter will not bear this construction, neither does that of Bombay; for in the 7th section of the Act (4 Geo. IV. c. 71) on which it is founded, it is expressly enacted, that the Supreme Court of Judicature thereby established, shall consist of the like ' number of persons, with full power to exercise such civil, criminal,
admiralty, and ecclesiastical jurisdiction, both as to Natives and British subjects, and to be invested with such powers and authorities, privileges and immunities, for the better administration of the same, and subject to the same limitations, restrictions, and control, within the said town and island of Bombay and the limits thereof, and the territories subordinate thereto, and within the territories which now are or hereafter may be subject to or dependent on the said government of Bombay,
the said supreme Court of Judicature at Fort William, in Bengal, by virtue of any law now in force, and unrepealed, doth consist of, is invested with, or subject to, within the said Fort William, or the places subject to, or dependent on, the government thereof.'
But,' says Mr. Denman,' the writ of Habeas Corpus is expressly given to the Supreme Court of Calcutta, by the letters patent of the 13th Geo. III ; they conferred upon that Court “such jurisdiction and authority as our Justices of the Court of King's Bench have and may lawfully exercise, within that part of Great Britain called England, as far as circumstances will admit.' The writs of Habeas Corpus issued under that power do not appear to have been questioned in any manner which could raise a doubt as to their authority.
Let us see how far this statement of Mr. Denman is supported by the facts. In pursuance of the authority vested in him by Lord North’s Act (13 Geo. III.), his Majesty, on the 26th of March 1774, granted a Charter, by which a Supreme Court was erected, to consist of a Chief Justice and three Puisne Judges. This Court was declared to be a Court of Law, a Court of Equity, of Oyer and Terminer and Gaol Delivery, an Ecclesiastical Court, and a Court of Admiralty, but there was no clause from which an intention could be inferred to invest it with that portion of the authority of the Court of King's Bench, which is exercised by issuing inandatory writs, to prevent defects of justice, to control inferior Courts, or protect the liberty of the subject, unless such power was given by a provision which has been copied in the Bombay Charter, viz., that the said Chief Justice and the Puisne Judges shall, severally and respectively, be, and they are and every of them, hereby appointed to be Justices and Conservators of the Peace, and Coroners within and throughout the said province, district, and countries of Bengal, Bahar, and Orissa, and every part thereof, and to have such jurisdiction and authority as our Justices of our Court of King's Bench have and may lawfully exercise within that part of Great Britain called England, by the common law thereof.' On this section Sir John Peter Grant and his counsel contend, that the power of issuing the prerogative writs of the Crown was conferred upon the Supreme Court of Fort William. The Company, on the other hand, assert that the words on which that construction is sought to be raised, must be read 'secundum subjectam materiam,' in a much more limited acceptation ; and that as the Judges of the Court of King's Bench are virtute officii, severally and respectively, Justices and Conservators of the Peace, and Coroners, throughout the realm of England, it was meant only to confer on the Judges of the Supreme Court of Fort William, the same ample commission in the provinces, subject to the Presidency of Bengal. Of this latter opinion we confess ourselves to be ; that the Charter was so understood by the East India Company, is clear from their petition to the House of Lords; and we think Mr. Denman mistaken in supposing that the occurrences in Bengal, between 1773 and 1781, and the proceedings arising out of them, were of a nature to rebut the strong presumption thence raised, that it was not the intention of the Legislature to introduce the protection of Habeas Corpus into India.
To us, indeed, the history of the contest between Warren Hastings and Sir Elijah Impey, seems strongly corroborative of the recent decision of the Privy Council; and as less allusion was made to it in the arguments of Serjeant Bosanquet and Serjeant Spankie, than might be expected from its obvious bearing on the question, and the strong reliance placed upon it on the other side, we may be excused for referring to it somewhat at length.
On the 28th March, 1774, the newly-appointed Judges of the Supreme Court, Sir Elijah Impey, Chief Justice, Mr. Justice Chambers, Mr. Justice Le Maistre, and Mr. Justice Hyde, took leave of the Conrt of Directors, and availed themselves of that opportunity to assure the Court, that they would use their utmost endeavours to render their appointment serviceable to the Company. To what extent they respected this engagement, or found themselves able to redeem it, may be judged from the early rupture which occurred between them and the authorities in India. Scarcely were they seated at Calcutta, when they claimed a right to inquire into the proceedings of the Courts of Dewannee Adawlut, to which, in conformity with the usage of their Mohammedan predecessors, the management of their revenue, and the administration of civil justice, were entrusted by the Company. It is not necessary for us to detail the cruelties perpetrated at this time against defaulting Zemindars and other debtors to the Company and by them on their subordinates, or the excesses of the provincial courts. Suffice it to say, that they were of a nature to justify, in numerous instances, the interference of the Supreme Court, had its jurisdiction not been limited by the Charter; and perhaps, upon the whole, it may be doubted whether the evils arising from too rigid an adherence to the principles of English law, in contempt of the feelings, customs, and prejudices of the Natives, were not fully counterbalanced by the protection occasionally afforded to the victims of fiscal rapacity. However that may have been, the powers claimed by the Court were at length denied by the Government; and after various amicable attempts to arrange the matters in dispute, the Governor-General and his Council determined not to execute the process of the Court, and encouraged resistance to it by a public notice which they gave, that it had exceeded its jurisdiction.*
It appears, from the report of the Committee appointed by the House of Commons to inquire into the circumstances of this dispute, that the Directors of the East India Company, on the 19th of November, 1777, sent a letter to Lord Viscount Weymouth, then secretary of state, in which they complain,
1. That the Court had extended its jurisdiction to persons to whom it does not appear to have been the intention of the King or Parliament to submit to its jurisdiction.
2. That it has taken cognizance of matters, both originally and pending the suit, the exclusive cognizance of which they conceive it to have been the intention of the King and Parliament to leave to other Courts.
3. That it has claimed a right of demanding evidence, and of inspecting records, which they conceive it had no right to demand or inspect.
4. That the Judges consider the Criminal Law of England as in force and binding upon the Natives of Bengal, though utterly repug
* The notice issued by the Governor-General was as follows:
Be it known to all Zemindars, Chowdrees, and Talookdars, in the provinces or suburbs of Bengal, Bahar, and Orissa.
· Whereas representations have been received from many of the Zemindars, Chowdries, and Talookdars of these provinces, by the Governor-General and Supreme Council at Fort William, that summonses, warrants, and other process of the Supreme Court of Judicature at Calcutta, have been served upon them by the sheriff's officers, requiring or compelling them to appear before the Judges of the said Supreme Court, and give in answers to complaints or suits instituted against them, Notice is hereby given to the Zemindars, Chowdries, and Talookdars, of the province aforesaid, “ That not being subject to the jurisdiction of the Supreme Court, (except in cases hereafter specified), they shall not in case of any summons, warrant, or other process of the said Supreme Court, being served upon them by the sheriff or his officers), appear nor plead, nor do nor suffer any act which may amount on their part to a recognition of the authority of the judicature extending to themselves.” ?
“The cases where the Zemindars, Chowdries, and Talookdars are, in common with all the inhabitants of these provinces, subject to the jurisdiction of the Supreme Court, and must pay obedience to its process, are as follows:
*1. Where the parties sued shall, at the time when the debt or cause of action shall have arisen, have been employed by, or shall have been directly or indirectly in the service of the Company, or of any of his Majesty's subjects.
2. Where the party sued shall have entered into any contract or agreement in writing with any his Majesty's subjects, and the cause of action shall exceed the sum of five hundred current rupees; and where the party shall have agreed in the same contract, that, in case of dispute, the matter should be heard and determined in the Supreme Court.'