duals, to find their titles to property, theit, transactions and engagements with natives previous to the establishment of the court of judicature, tried by the standard of English law, and by men educated under its forms, and unavoidably imbibing its prejudices, when no such laws could be known to or practised by natives or Europeans then residing in the country, and at a time too when few or no persons of legal knowledge were in the country to assist or advise them. "Your petitioners humbly conceive, that no tyranny can be more dreadful in its operations, or more fatal in its consequences, than that a court, established by law, with all the authority of one of the first courts in England, should also possess undefined powers and jurisdiction, of which the judges of it are the sole interpreters, and under no controul but at the immense distance of the mother country; yet such is the situation of your petitioners, they are placed within the reach of this two-edged weapon, surrounded with the toils and pitfalls of the law in a country where perjury is almost a profession, unknowing where they may rest in safety: for the judges of this court can at pleasure determine on the denomination of a civil injury, the degree of its criminality, by what statutes it shall be tried, what penalties shall be inflicted, and who are, and who are not, amenable to the jurisdiction of the court. The judges have declared, that they are, by the charter of justice, empowered to moderate the laws of England by the customs of this country; but their information respecting these customs can only be obtained from such witnesses as appear before them, and it is in the breasts of the judges to admit or reject what evidence they please. This power had filled your petitioners with the utmost terror and dismay; if it had remained with a body of jurors, acquainted with the language of the natives, informed as to their customs, and bound by oath to decide with truth and justice, there would have existed no foundation for either. "Your petitioners perceived, with heartfelt satisfaction, that the said Act had provided some barrier against oppression, by authorizing an appeal from the decrees of the supreme court to his Majesty in council, which his Majesty has also been most graciously pleased to recognize in his charter of justice; but the hopes of relief, raised upon this foundation, vanished from before us, when your petitioners found that the judges of the court had not only taken upon themselves to make and alter the rules of it, but that they could receive or refuse what evidence they thought proper, and that the appeal could only be heard under these rules, and upon the evidence recorded during the trial, removed at such a vast distance from the tribunal of justice, before an unjust or illegal sentence could be reversed, the sufferer might fall a victim to penury, or perish by imprisonment: but, from an appeal under such circumstances, what redress can your petitioners obtain ? "Your petitioners entertain all becoming respect for the authority of the charter of justice, and the utmost reverence for their sovereign, whose sanction it has received: yet they cannot but observe, that, by the powers delegated in this charter, men are constituted the judges of their own acts, which appears to your petitioners highly improper and inconsistent: for the judges of the supreme court in Calcutta are impowered to sit also as a court of chancery, and in this capacity to revise, correct, rescind, or confirm, decisions passed by themselves whilst acting as judges in a court of law; and by another part of their institution, they possess the power, and they alone, of staying execution in criminal cases, till his Majesty's pleasure be known. There is a principle in human nature which inevitably impresses a bias upon the mind in favour of its own decisions, and experience has decided that reason and philosophy are too weak to restrain it; but in all well-regulated communities, when the consequences of any principle are foreseen, or found to be fatal, the wisdom of the legislature interposes, to check its operation. Your petitioners have the most perfect conviction, that the possible evils of this power did not occur to their most merciful sovereign when his approbation was conferred to the charter of justice, and that they require only to be pointed out to ensure redress. "Your petitioners with all deference, conceive that there must be some fundamental error in that institution, which requires a more than ordinary degree of temper, ability, and integrity, to carry its purposes into execution; and they do not hesitate to declare, that to administer the power appertaining to the institution of the supreme court without extensive public detriment, and partial acts of private severity and injustice (if it be possible at all), requires more equity and moderation, discernment and enlightened abili Debate on General Smith's Motion for a Committee on the Petitions against the Supreme Judicature of Bengal.] Feb. 12. The preceding petitions being read, es, than they can hope to find in any en. To what extent the judges of his ajesty's court may possess those qualies, your petitioners do not pretend to ecide, and still less to assert that they do ot possess them at all; but they comain of the jurisdiction, of the unconouled unlimited powers, with which the ourt is vested, and with the execution of bich no men are to be trusted. "Your petitioners can bear distress ke men, but they must also feel like men, and speak these feelings like Englismen. the language of complaint is warm, let be attributed to the dread of future inries, from a keen sensibility of what is ast. Your petitioners claim a trial by ry as their birth-right; and they solicit o be relieved from the other great grievnces they labour under. To a British House of Commons they appeal, with the irmest reliance on its wisdom, justice, and umanity; and in appealing to such a triunal, they perceive their apprehensions ield to the most flattering hopes of a peedy redress. "Your petitioners therefore humbly pray, that you will be pleased to take into Consideration the following requests:"To grant a trial by jury in all cases where it is by law established in England. "To limit the retrospective powers of the court to the time of its establishment in Bengal. "To define, beyond the power of discretional distinction, the persons who are and who are not amenable to the jurisdiction of the court. To declare what statutes shall, and what statutes shall not be in force in Bengal. "To direct and circumscribe the power of the court in the admission and rejection of evidence, so as that all rejected evidence may accompany the appeal by way of affidavit or otherwise. "To appoint distinct and separate judges for the law and equity sides of the court. "To restore the ancient and constitutional power of hearing appeals in the first instance, to the supreme authority in this government formerly vested in the president and council, and now vested in the governor-general and council. "To lodge a power of staying executions in criminal cases, till his Majesty's pleasure be known, in the governor-general and council. And your petitioners shall ever pray." Ordered to lie on the table. General Smith spoke as follows: Mr. Speaker, it is not my intention to make any apology to the House for calling its attention to the petitions now read. The subject is too important to require it, but I am very free to declare, that on this oc casion, no personal motives whatever influence my mind; I disclaim every idea of personality; I am impelled by motives of justice and humanity, to give such a representation of facts, as I trust will make their impression upon the members of this House, and from thence will appear the absolute necessity of coming to some speedy determination relative to the very distracted state of our government in Bengal and its subordinate provinces. Before, Sir, I enter into the present state of the jurisdiction of the supreme court of judicature, it may be necessary to describe what was the state of jurisdiction in Bengal, before the supreme court was established. The mayor's court of Calcutta decided all causes of meum and tuum; it consisted of a mayor and nine aldermen, appointed by the governor and council, from the inhabitants of Calcutta ; they were appointed for life, unless for misbehaviour, &c. and then they might be removed, but any alderman so removed had his appeal to the King in council. I believe the decisions of that court were in general very upright. The very few appeals from it serve to confirm me in my opinion. The chief justice, on the opening of the supreme court of judicature, paid many high compliments to the decisions of the mayor's court, then to be abolished. The sessions of oyer and terminer were held by the governor and council as the King's justices; I believe I may safely say, that their conduct as judges was without reproach; they decided upon all occasions to the best of their judgment, and justice was ever tempered with mercy. In the internal provinces, courts of Adawlet and Phousderry were established, when the civil and criminal jurisdiction was exercised betwixt native and native, subject to the controul of the provincial councils, and from whose decisions, if any person thought himself injured, he might appeal to the governor and council of Fort William, who by the charter were invested with the supreme authority. + able sentence since the establishment of the supreme court of judicature; I do conceive it would have been highly just, as well as politic, to have given his Ma jesty an occasion of exercising his judg. This was the state of the respective ju- | membrance, that it was the first remarkrisdictions in Bengal, when the supreme court of judicature, instituted by virtue of an act of parliament of the 13th year of his present Majesty, was opened in Calcutta. It is impossible, Sir, to speak of the establishment of that court, and passment, and in that case I have not a doubt, over in silence the first remarkable judgment; I mean the case of the Rajah Nundocomar. I do not mean to enter fully into the merits of this extraordinary case, I have my own decided opinion upon it; but Rajah Nundocomar was indicted for forgery, a forgery committed many years before the establishment of the supreme court of judicature; he was found guilty, condemned, and executed.* Let us compare the conduct of the judges of the supreme court with that of the governor and council sitting as justices, in 1762. but the Rajah Nundocomar would have experienced the same royal clemency as was extended to Radachum Metre. The execution of Nundocomar will, I hope, point out the absolute necessity of granting an authority to the council of state, to respite any sentence of death passed by the supreme court, until his Majesty's pleasure shall be known. Sir, the petitions on the table complain of an extension of the jurisdiction of the supreme court of judicature, beyond what they are empowered to exercise by the act or by the charter. I have read the charter with attention, and I have diligently perused the records of the Company. I am convinced, that it never was the intention of parliament, when the Act was passed, to subject the native inhabiPeruse the Act, and see how very cautioustants of Bengal, &c. to the British laws. Radachum Metre, a Gentoo inhabitant of Calcutta, was tried for a forgery, found guilty and condemned; the Hindoo inhabitants of Calcutta presented a strong petition to the governor and council, stating, that by their laws, forgery was not a crime to be punished with death; the terrors which every inhabitant of that coun-ly it is worded. try would be under, if the laws of England, which were contrary to their laws, customs, and religion, should operate so as to affect their lives, and therefore most earnestly requesting the governor and council to suspend the execution of the sentence, and to recommend Radachum Metre to his Majesty's royal clemency. The governor and council wisely complied with the prayer of the petition, and thereby gave his Majesty an opportunity of exercising the brightest attribute of his crown, by extending his royal mercy; and a pardon was granted. Now, if there ever was any one case more peculiarly fitting to be submitted to his Majesty's decision than another, I do conceive it to be the case of the Rajah Nundocomar; a man who had been the prime minister of that country, a man of very high rank, with respect to his particular cast; condemned for a crime committed so many years before the establishment of the supreme court, and upon an act, that it has been said, does not extend to the East Indies; add to this, that the principal evidence against him was a man of notoriously bad character. these circumstances, we keep in our reIf to all See Howell's State Trials, Vol. 20, p. 923. absolutely restrained from exercising jurisThe supreme court are diction over the natives, unless they each shall sign an agreement to submit to the jurisdiction of the court. British subjects and others, directly or indirectly, employed in the service of the Company, or of any of our subjects, are the only objects of the jurisdiction of the supreme court. employed, directly or indirectly, has From the judges construction of who are arisen all these disputes which have been carried to such a length, that the governor general and council have thought it necessary to interfere, and place a limit to appeal to parliament by petition for an the jurisdiction of the court, and then to act of indemnity. To convince this House of the intolerable hardships which the inhabitants of Bengal now labour under, from the assumed jurisdiction of the court, I shall beg leave to state some very striking instances. The first happened in the province of Dacca. Dacca is a province remarkable for the flatness of its surface, and when the periodical rains set in, it was not uncommon for the torrents which poured down the eastward to overflow the banks, and with great rapidity from the mountains to sometimes to force a new channel for the river. It so happened, that this circum stance occurred not long since. As soon as the rainy season subsided, the Rajah through whose possessions the river had formerly flowed, cultivated the old bed, and by proper means prepared it for agriculture. At the same time, another Rajah sent his men to plough and sow part of the same spot. When the time of harvest came, they both assembled an armed force to collect the crop; some people were killed on both sides, and the harvest was reaped by him who first began to cultivate. A complaint was made to the provincial council of Dacca. The cause was in hearing. The Rajah who had been the aggressor, finding that he could not support his pretensions in the country court, applied to the supreme court at Calcutta: and upon a simple affidavit, warrants were granted against two of the principal officers of the Rajah who reaped the crop, to apprehend them as murderers. They were apprehended and brought to Calcutta very soon after the assizes; the counsel for these prisoners offered bail; no bail was accepted; they were loaded with such heavy irons, that the counsel represented there were apprehensions of a mortification. After five months confinement, the assizes were held. The prosecutors were not prepared for trial. dies at Patna; he leaves a considerable property; his widow and his nephew claim the inheritance; suits are preferred to the provincial council of Patna, who issue an order to the cazies and mufties (who are the expounders of the Mahomedan law, and receive a monthly stipend as a salary of office) to examine into the allegations, and to report according to their laws and usages. The cazies and mufties make their report, that by their law, the nephew as heir, is entitled to three fourths, and the widow to one fourth of the effects of the deceased. The provincial council make a decree in consequence, and order it to be carried into execution. The widow was not satisfied with the decision. The mufties report to the council, that she throws impediments to the execution of the decree; the provincial council enforce their order, and after some few days the widow appoints a vaqueel or agent to act for her, and the decree is executed. The widow, not pleased with the decision of the provincial council, applied to the supreme court at Calcutta, not by way of appeal, for appeals could only be brought before the governor general and council, but I believe, obtained writs of trespass against the Mahomedan doctors of the law, and the nephew. It being a bailable Bail was again offered, but not ad- offence, the governor general and council, mitted. After twelve months imprison- thinking their authority invaded, ordered ment, they were brought to trial; the the provincial council of Patna to give counsel for the prisoners, upon the cross bail for the appearance of the cazies and examination of the very first evidence mufties, being the Mahomedan law ofcalled on the part of the prosecution, ficers of government, and the provincial clearly proved, that these two unhappy council entered into recognizances for men were not within the jurisdiction of 36,000l. At length the cause was tried the court; no other evidence was exa- by the supreme court of judicature. Bemined and they were of course discharged. hadar Beg, the nephew, pleaded not subI mention these circumstances with more ject to the jurisdiction; his plea was overconfidence, because that very evidence, ruled, because he was, or had been a farand the learned counsel who defended the mer of land under the Company, or secuprisoners, are at this time members of rity to a farmer. The Mahomedan docthis House. I shall only add on this sub- tors of law stated, that they acted under ject, that on application to the supreme the appointment of the president and court for redress and reparation, the judge council; that it was usual and customary declared he could give no redress nor re- to decide causes betwixt Mahomedans by paration, because the prosecutor was not the Mussulman law; that they thought within the jurisdiction of the court. The themselves legally authorised to give opiRajah, who defended the cause of his ser-nions, and to obey the perwannah or orvants, declared that the defence cost him near 3,000l. The next instance which I shall state, is what relates to the Patna cause, but as the publication of all those proceedings is intended, I shall state it briefly. Shah Abas Beg, a Persian, who had formerly served in our armies with some reputation, [VOL. XXI.] ders of the provincial council of Patna. They also stated the powers of the present governor-general and council, given by act of parliament, and that the governorgeneral and council, continued to intrust the administration of justice in the Bahar province to the provincial council, and to suffer the Mahomedan doctors to exercise [4 G] the powers before described. The judges of the supreme court decide, that the proceedings of the cazies and mufties were illegal, because they acted by the authority of a council, which council possessed only a delegated authority, and which they could not possibly delegate to others, quoting it as an established maxim in the law, that " delegatus non potest delegare:" upon this principle, judgment was pronounced in favour of the widow against Behadar Beg, the mufties, and cazies, and damages decreed to the amount of 30,000l. In consequence of this judgment, the provincial council of Patna gave up the parties. They were sent down prisoners to Calcutta, a distance of 400 miles. The cawzie sunk under the weight of his misfortune, and died on the road. The others were not so happy. They survived their journey, only to be sent to the common gaol, sentenced to perpetual imprisonment, for in such light I must regard it, since from the excessive damages decreed, it is impossible they should be ever liberated, unless by the interposition of the British legislature. This, Sir, is another of the blessed effects of the transported laws of freedom. | assigned in their petition, determined to interpose that authority with which they were invested by parliament. The Rajah of Cossijurah, terrified at the idea of being subjected to the jurisdiction of a court, whose laws and language were to him totally unknown, orders his vaqueel or agent to adopt the necessary measures. He, the vaqueel, applied to an attorney, with an intention to plead, that the Rajah was not subject to the jurisdiction of the court. The vaqueel was also ordered to learn from the governor-general and council, in what manner the Rajah was to conduct himself in this extraordinary dilemma. The governor-general and council positively direct him not to admit of any writ being served on him, and to declare that he was not amenable to the jurisdiction of the court. A sheriff's officer with some armed men are sent to the Rajah's fortress to execute the writ. The Rajah summonses his dependants, and the sheriff's officer is informed, that no writ from the supreme court can be executed there, the Rajah not being subject to the jurisdiction of the court. The bailiff takes post in a gateway, and sends intelligence to the sheriff of Calcutta, of his inability to execute the writ. A reinforcement of 16 European seamen, and 60 natives, all arm I come now, Sir, to the third instance, and which has been the immediate cause of the petition to this House, from the go-ed with muskets, pistols, swords, &c. is vernor-general and council of Bengal. The Rajah of Cossijurah is the most considerable and most ancient zemindar of the district of Midenpoor. Cossinaut Baboo, his relation, and a considerable merchant of Calcutta, had been for many years the Rajah's security for the payment of his revenues. Some disputes arise between the Rajah and his security, on the adjust ment of their accounts. Cossinaut makes a balance due to him of 15,000l. and applies to the governor-general and council for their assistance to recover his debt. They send this account to the Rajah and desire an explanation, who produces an account on his part, which makes Cossinaut his debtor. Cossinaut, not satisfied with the proceedings of the governor-general and council, and deeming the process of the supreme court of judicature a more efficacious mode of obtaining his balance, obtains a writ against the Rajah. The governor and council-general were alarmed at this proceeding of the supreme court, because they conceived it to be an extension of jurisdiction not granted by the charter. They took the advice of their advocate-general, and for the reasons sent to the assistance of the bailiff. As soon as the governor-general and council were informed of such a force being sent to execute the writ of the supreme court on the Rajah of Cossijurah, they sent their orders to lieut. col. Auchmuty, who commanded a military station in that neighbourhood, to detach two companies of seapoys to the assistance of the Rajah, and to take prisoners all persons who were employed with or under the orders of the sheriff's officer. But the reinforcement to the sheriff's officer had enabled him to execute his writ of sequestration on the lands and property of the Rajah, to the amount of 30,000l. I shall not at present enlarge upon the mode and manner in which this writ was executed; I shall only observe, in the very words of the petition, "That in the execution of the writ, the apartments allotted to the female part of the Rajah's family, which are ever held sacred in this country, were forcibly entered, his temple broke open and polluted, and the image of his worship thrust into a basket, and deposited with mixed lumber, under the seal of the court. Such acts are accounted instances of the grossest |