but he did dread his venomous praise. Į justice. The usage of any court consti Being told that he was in the gallery, he said, I am glad that he hears me, I will raise my voice, that he may hear me distinctly; I am glad that he knows my opinion of him. tuted the law of that court; and the usage of courts martial constituted the law of courts martial. Indeed, this usage necessarily arose out of the circumstances of sea-officers, who had no other way of trying and stigmatizing malicious accusers. Mr. Solicitor General Mansfield said, that however the forms of justice might vary, justice itself was invariable: and it was an essential part of justice, that every man should have an opportunity of answering to any charge that might be brought against him. The motives of accusers might be various; they might be misinformed; they might misconceive things; they might be credulous; though a charge might not be supported, it did not follow that it originated in malice; the person who brought such a charge might shew that malice could not be his motive, by shewing what his real views and motives were. Mr. Attorney General Wallace said, that condemning sir Hugh Palliser of malice, was subversive of all honour and justice. He acknowledged that he had said, at a time when he did not know all the truth, and when there was a popular rage against sir Hugh, that if any minister were so imprudent as to employ him at that moment, he deserved to be accused; and, said he, I do not say that the times are changed, or that popular fury is abated; I do not say, that I know they are changed. If they were, to be sure that would make a material difference. In the mean time 1 maintain my consistency of conduct, by observing that the governorship of Greenwich-hospital is not a very efficient office. It is not a military office. I ask what Mr. Dunning said, that sir Hugh and naval skill or courage are requisite for the his friends were obliged to Mr. Fox for government of Greenwich-hospital? his motion; for after that should be neSir Fletcher Norton knew that the man-gatived, as he presumed it would be, miner in which he had conveyed the thanks nisters would dare to do what they would of the House would be a subject of obser- not dare to do otherwise. It had been asvation, and perhaps of censure. But he serted, that it was allowed on all hands, would always prefer his duty to every con- that sir Hugh had been condemned of sideration whatever. He acknowledged a malice without being heard. That was not former connection with sir Hugh, never- the case. That position had been denied theless he thought it his duty, when he in as strong terms as the decorum due thanked admiral Keppel, to use the strong from one gentleman to another would language of the court-martial, however permit. He was heard on the charge of displeasing it might be to sir Hugh or malice, when he was increasing his malice others. As to sir Hugh's not been tried by every new effort to bring admiral Kepfor malice, or heard upon that subject, was pel to condemnation and death. The of he not heard on it when he laid before ficers that tried admiral Keppel were comthe House, and pressed home by every petent to judge of sir Hugh's motives, argument, all the evidence by which he therefore their opinion was of equal weight supported his charge? For if his evidence whether judicial or extrajudicial. That it was lame, and even trifling, what other was extrajudicial he did not think; for the motive could be assigned for his conduct form of different courts were different; besides malice? For malice was an act or and though it had been argued, that it was disposition of the mind, which could not essential to all justice that no man should be proved by direct evidence, and could be condemned without being arraigned, a only be inferred from acts or expressions. formal accusation was not necessary; and, These were before the court-martial; and with regard to sir Hugh's case, he had in from these they inferred malicious inten-fact been his own accuser; for if he could tion. What, though their sentence might be called extrajudicial? It was not properly any sentence at all. It was an opinion; but an opinion formed in such circumstances as to be equivalent to a sentence, and as operative on the minds of men. But why should this sentence be termed extrajudicial? The forms of Westminsterhall were not necessary to the decisions of not prove a charge, nor make good what he undertook, which he must have known whether he would be able to do or not, he could be actuated only by malignant passions. He took notice of the very honourable acquittal of admiral Keppel. Men, in opposition, perhaps, to the views of policy and self-interest, under the lively impressions of truth and justice, had made the Governor General and Council at Calcutta ; and from the British Subjects residing in Bengal, Bahar, and Orissa, against the Supreme Judicature of Bengal.*] A Petition of Warren Hastings, esq., governor general, and of Philip a very noble sacrifice to the cause of justice. Mr. Dunning was very pleasant upon the Attorney-General. He knew, he said, and had foretold that the ingenuity of the learned gentleman had provided some hole for escape, when he had talked of impeaching the minister who should dare to employ sir Hugh; and now it appeared that he had a very wide gate for getting out of the scrape. For unless ministry had employed sir Hugh at the very moment he made that decla. ration, he could plead that times and circumstances had altered: "Tempora mutantur, et nos mutamur in illis." "The affairs of India now began to require and to attract the most serious attention of the House of Commons. It was strongly insisted upon by many persons of weight, that the interference of the crown under the sanction of parliament, in 1773, in regulating possessions in Asia, and in the management the government of the East India Company's of its affairs at home and abroad, instead of the benefits which were held out at that time, had produced such scenes of disorder, and such a state of confusion in India, as has not often been the result of civil, or even of any regulated military establishments. Lord Frederick Campbell said he should be on the side of justice, and should vote for the amendment, because he never would accede to the doctrine, that any man in this country in any court, either a court-martial or a court of law, could be double interests, mutually counteracting each "It was pretty generally allowed, that the deemed guilty of any specific crime with- other, which were then formed, and the opout a trial, or being heard in his own deposite powers which the Company's servants fence; he therefore should vote for the amendment. At two in the morning the question on the motion as amended by lord North was put, and the House divided: YEAS { NOES Tellers. Mr. De Grey Mr. Ord SMr. Thomas Townshend Mr. Byng :} 214 149 looked up to, necessarily slackened all the bands of obedience, and by degrees destroyed all authority. The revolution at Madras, the fate of lord Pigot, the triumph, rather than escape, of the authors of that catastrophe, with the extraordinary phenomenon of Indian princes, at the distance of half the globe, becoming the authors of cabals, and the leaders of parties, in the capital of Great Britain, formed all together such a combination of circumstances, as pointed out the necessity of a review of our policy itself, in the governSo it was resolved in the affirmative.ment of India, as well as of the striking ef Mr. Fox then moved to insert the follow-fects which it had produced. ing after the words "heard in his defence:""the judge advocate having, by the direction of the said court, declared, that it did not occur to the recollection of any of the members, that it had ever been the usage at courts martial to admit any thing on the part of the accuser, after declaring he had gone through all the witnesses he should produce in support of the charge, and that they had agreed that the paper then offered by the accuser could not be admitted; and the said court having, in another part of the said trial, declared that they continued of the same opinion, and had agreed that the whole evidence, not only on the part of the charge, but of the defence, having been closed, nothing further, by way of address from either party, could be received." This Amendment was over-ruled by the motion for the order of the day, to which the House agreed. "Bengal, by the new regulations, had been dominions in the east. Two supreme jurismade the seat of government of the British dictions were there established. The one, possessing all the political and executive powers of government, under the name of governor general and council, extended its superintendance and controul over the other presidencies of Madras and Bombay. The second, composed of judges sent from England, was called the supreme court of judicature, and was entirely independent of the goceeded, with great additional powers, to the vernor general and council. As the one sucancient presidency, so the latter did to the mayor's court of Calcutta: a court, which though composed of magistrates not bred to the knowledge of the law, yet by acting upon the general principles of rectitude, and with the assistance of juries, was highly distinguished, as well for the moderate expence of ed, as for the fairness of its proceedings, and time and money at which justice was obtainthe equity of its decisions. "It was scarcely, perhaps, in the nature of things, that these separate independent EAST INDIA AFFAIRS-Petitions from powers, especially at such a distance from Francis and Edward Wheeler, esquires, counsellors for the government of the presidency of Fort William in Bengal, was presented to the House, and read; setting forth, "That, by an Act of the 13th of his home, as to be in a great measure beyond the reach of controul, should subsist long together without clashing. The public had hitherto received only the charges against the supreme judicature of Calcutta. Their friends could therefore only request, that no hasty opinion should be formed, nor censure past upon their conduct, until they were heard. "In this state of things, it is not easy to settle in what proportions the blame is to be laid, upon the constitution itself, or upon those who acted under it. It seems, however, to have been generally acknowledged, that the measure of attempting to establish the English laws, courts, and forms of justice, amongst the various nations, religions, languages, and races of men, subsisting in India, and where scarcely any length of time could even render them intelligible, will probably ever be considered as a fundamental political error. The antiquity of the Gentoo civilization, laws, religion, and customs, fortified by the invincible attachment which it produced in the people, had, in all ages, procured the political attention, if not the respect, of the most ferocious and barbarous of their various conquerors. However the people were oppressed or pillaged, their prejudices in those respects were sacred and inviolate. "The Zemindars, who are the present great landholders of India, are likewise a sort of hereditary princes of the country. They generally rent, from their subsisting masters, those lands which their ancestors possessed in sovereignty. Some of these hold lands to the extent of ten or twelve thousand square miles, and as the rents were generally easy, and the people still regard them with the highest degree of attachment and reverence, they are enabled to retain some appearance of former royalty in their palaces, and still more in their authority. The English government in this country, is in a great measure maintained through this attachment of the people to their princes; and the desire of enabling the Zemindar to discharge his rent, is a principal spur to their industry. All the judicial business of the country had hitherto been transacted in their provincial courts, and matters of litigation decided according to the known laws and customs. "The authority of the native courts was not only denied by the new judicature, but their members were punished even to ruin, as well as personal infliction, for the discharge of their functions, according to the established laws and constitution of their country, which had till now been acknowledged by all conquerors. We are at all times to recollect, present Majesty, intituled, An Act for 'establishing certain regulations for the 'better management of the affairs of the ' united East India Company, as well in 'India as in Europe,' the whole civil and military government of the presidency of that it had been the constant policy of the East India Company in the government of those countries, to act under the apparent authority, and as the nominal servants and officers, of that shadow of the ancient supreme sovereignty, the representative of the Grand Mogul, who still resided at Delly. So that the new system of judicature operated not simply as a violent and unprepared innovation, but as a total revolution in the mode of government established by ourselves. The astonished and terrified natives of Bengal and the adjoining countries, now beheld the extraordinary spectacle of English bailiffs, accompanied by considerable bodies of armed Europeans, traversing the country, at the distance of some hundreds of miles from Calcutta, to execute by force the decrees of the new judicature, founded upon laws and distinctions which they were utterly incapable of comprehending, in the palaces, and on the persons, of the Zemindars; whom they view. ed at once with the respect due to their natural princes, and to the medium of European authority. Force, in the defence of all that was held sacred, was opposed to force. A kind of sieges were formed; reinforcements were sent to support the assailants; the timidity, not the inclination of the people, prevented their being cut to pieces; places were carried by storm; the brother of one of the rajahs, with others of his friends or family, were killed in the defence of his palace. "The apartments of the women, which are held sacred throughout all the East, and still more so among the Gentoos of rank, were violently broken into, and their persons, which are supposed to receive some defilement even from the casual view of a stranger, were subjected to the rude handling and rough treatment of those sort of ruffians who are generally employed upon such occasions. But this was not the worst. Their places of private and domestic worship were violated in the same manner; and those symbols, or external objects of their adoration, which had been sanctified by the reverence of ages, were dragged from their places by profane hands, and thrown amongst the heap of houshold furniture and lumber, which were collected to answer the ends of the execution. "The governor general and council, who considered all matters of finance, and consequently all transactions with the Zemindars, as cognizable only by themselves, and still regulated in that resort by the known laws and customary course of justice in the country, could not but resent this invasion of their authority. They had indeed much serious Fort William in Bengal, and the ordering, management, and government of all the territorial acquisitions and revenues in the kingdoms of Bengal, Bahar, and Orissa, are vested in the governor-general and council of the said presidency, in like manner, to all intents and purposes whatsoever, as the same were at the time of passing the Act, or at any time before might have been ex-rectly or indirectly in the service of, the ercised by the president and council, or select committee, in the said kingdoms; and that by the said Act, his Majesty was empowered to erect and constitute a supreme court of judicature at Fort William aforesaid, with full powers and authority to exercise and perform all civil, criminal, admiralty, and ecclesiastical jurisdiction over all British subjects resident in the said kingdoms or provinces, under the protection of the said united East India Company, and to hear and determine all com plaints against any of his Majesty's sub-r jects, for any crimes, misdemeanors, one oppressions, committed, or to be com-imitted, and also to entertain, hear, and it determine any suit, action, or complaint, against any person who shall at the time when such debt, or cause of action or complaint, shall have arisen, have been employed by, or shall then have been di cause of apprehension, from the effects which this violence on the rights, passions, and prejudices of the people might produce, in a country where so many millions of natives were governed by a handful of strangers. "They accordingly employed the military force of the Company to restrain the violence of the civil power; and a gang, consisting of about fourscore bailiffs and their associates, were in one instance disarmed, and sent up prisoners to Calcutta. Two petitions were now presented to parliament. The one from the governor general and council, giving a long statement of the transactions, and requesting an indemnification from those legal penalties, which, for the preservation of government and of the country, they had been under a necessity of incurring, in resisting the decrees of the supreme court, and the operation of an act of parliament. said united East India Company, or of any of his Majesty's subjects, and against any inhabitant of the said kingdoms, for a debt arising on any contract, or agreement, in writing, with any of his Majesty's subjects, where the cause of action shall exceed the sum of five hundred current rupees, and where the said inhabitant shall have agreed in the said contract, that, in case of dispute, the matter shall be heard and determined in the supreme court of judicature: that it appears to your petitioners, that the above recitals do clearly explain and define the powers and jurisdiction severally appertaining to the said governor general and council, and to the supreme court of judicature aforesaid : that is to say, that the supreme court of judicature is competent to exercise every kind of jurisdiction over all British and also over all persons, whether natives subjects resident in the said provinces, of these provinces, or others resident in the same, who shall, at the time when the cause of action instituted, or complaint made against them, shall have arisen, have been employed by, or shall then have been directly or indirectly in the service of, the said united East India Company, or of any of his Majesty's subjects, or who shall have voluntarily made themselves "The second petition was subscribed by subject to the authority of the said supreme 648 of the British subjects residing in the court of judicature, in the case of conprovinces of Bengal, Bahar, and Orissa, con- tracts expressing such a subjection; and taining a long detail of the grievances, op- that the said supreme court of judicature pressions, and violations of their rights as hath no power or jurisdiction whatever men and as Britons, which they had endured over persons not answering to these desunder the authority of the supreme court of criptions; and that the governor general judicature; particularly of their being deprived of the benefit of trials by juries in all civil and council are competent to exercise cases; of the establishment of ex post facto every function of government, and every and retrospective laws; of some matters re- right of jurisdiction, not vested in the su-, lative to appeals, and the admission of evi- preme court of judicature as aforesaid, dence, which seem to be exceedingly oppres- over all persons, natives or inhabitants of sive and unjust; with a number of other as- these provinces, who are either subject to sumptions of power, which, as stated, appear the civil or military government of this of an extraordinary nature. They likewise presidency, or of the territorial acquisiconfirm the accounts given by the governor tions and revenues of these kingdoms, it general and council, relative to the state of confusion, anarchy, and danger, which being contrary to the nature of things through these means prevailed in the coun- that the governor general and council try." Annual Register, should exercise such authority over the said territory and revenues, and not over the persons immediately possessing such territory and revenues, as well as to the rights derived by the governor general and council, in virtue of the said act, from the president and council and select committee of the said kingdoms, who did exercise such authority; and further to exercise every function of government, and every right of jurisdiction, absolutely and exclusively over all persons, natives or inhabitants of these provinces, who are neither British subjects, nor are, nor ever have been, employed by, or directly or indirectly in the service of, the united East India Company, or any of his Majesty's subjects; and that it is also provided by the said act, that the said supreme court of judicature shall not be competent to hear, try, or determine any indictment or information against the said governor general, or any of the said council, for the time being, for any offence (not being treason or felony) which such governor general, or any of the said council, shall or may be charged with having committed in Bengal, Bahar, and Orissa; and that it is further provided by the said Act, that nothing in the said Act shall extend to subject the person of the governor general, or any of the said council respectively for the time being, to be arrested, or imprisoned, upon any action, suit, or proceeding, in the said supreme court of judicature; and that, in conformity to the two preceding clauses, and evidently to render the same both effectual and consistent with the complete administration of justice, his most gracious Majesty, by his letters patent, establishing a supreme court of judicature at Fort William in Bengal, after reciting that it had been lawful for the mayor's court to issue their summons to the governor or president and council of Fort William in Bengal, to appear for the said united East India Company, and to compel their appearance, hath granted, ordained, and appointed, that the governor general and council shall and may, from time to time, by their sufficient warrant to be filed of record, name and appoint some sufficient person, resident in the town of Calcutta, to be the attorney of the said united East India Company, who shall remain and act as attorney to the said united East India Company so long as he shall reside in Calcutta, or until some other fit person there resident shall be appointed in his place, in manner above mentioned; and if any plaint shall be filed in the said supreme court of judicature at Fort William in Bengal against the united East India Company, the said supreme court of judicature at Fort William in Bengal may, and is hereby empowered to award and issue their precept, directed to the sheriff, commanding him to summon the said united East India Company, by their said attorney, to appear at a time and place therein to be specified, to answer to the said plaint, and the sheriff shall serve the same upon the said attorney, and the said attorney shall thereupon appear for the said united East India Company; and that, after such appearance, the said supreme court of judicature shall and may proceed to hear, examine, try, and determine the said action and suits, in the manner specified in the said letters patent; and that it appears to your petitioners, that the two clauses above recited from the Act aforesaid, and the preceding extract from his Majesty's letters patent, do amount to a virtual, but certain, exemption of the persons of the governor general and council from the jurisdiction of the supreme court of judicature in all causes wherein the said united East India Company are parties; that is to say, in all causes originated from, or appertaining to, the acts of the said governor general and council, done by them in their character of managers, or agents, for the affairs of the said united East India Company, it being certain that the said united East India Company can do no acts in these kingdoms, or provinces, but through the agency of the governor general and council, and that the said united East India Company can therefore only be sued for the acts of the said governor general and council; and that therefore in all suits instituted in the supreme court of judicature, by persons aggrieved, or supposing themselves aggrieved, by such acts, such suits shall lie, and be brought against the said united East India Company only, and not against the governor general and council; and appearance shall be entered, for the said united East India Company, by their attorney, so constituted as aforesaid, he being their only efficient representative under the said letters patent; and that any attempt of the supreme court of judicature, to compel the said governor general and council to appear, and to answer to such suits, is illegal, and contrary to the intent and meaning of the said letters patent, which must be understood to bear the intent and meaning |