go to all statutes made before the establishing the English laws in Calcutta, and to the King's undoubted prerogative of introducing the English laws in any of his foreign dominions. would, on the face of it, have been palpably false. It is true that forgery was not capital by the laws of the country of which Nundcomar was a native and inhabitant; if by that it is meant he was a native and inhabitant of any part of the provinces at large, without the town of Calcutta; but it is not true that forgery was not capital by the laws of Calcutta, to which place alone the word 'country,' to be applicable to the matter in charge, can be justly referred, he being really an inhabitant of that place. It is true that there is a clause in the Act, that it shall not be construed to extend to Scotland; for which many reasons deducible from the Union, from the state of the commerce, and the difference of the criminal municipal laws, of that part of the kingdom, may be assigned, none of which have a tendency to prove that it ought not to have been introduced in Calcutta. It was the law of England, not Granting it to be true, that "it is rethe law of Scotland, which had been ad- pugnant to the principles of justice, huministered by the former court in Cal- manity, and reason, to subject a whole cutta, and which it was become the duty nation to the penalties of a foreign law," of the Supreme Court to administer. under all the circumstances stated in the Used as I have been to professional rea- fourth objection, still that is nothing to soning, it is to my great surprise that I this point; for it does not from thence folfind this objection has appeared so specious low, that it is contrary to justice, humanity, as to captivate those who have not been and reason, to subject the inhabitants of used to law inferences, and have not duly the town of Calcutta, who are not a whole examined the grounds of it: to a lawyer, nation, and the town which is an English I think, I may venture to say it can have town and factory, to English, not to no weight, for the exception would rather foreign laws, when to those very laws such be a proof of the generality of the course of the inhabitants as are not British subof the law in places not excepted: Ex-jects have voluntarily resorted for protecceptio probat regulam. The comparison of the distance of Scotland and Calcutta can make no difference. Had there been an exception to a particular town in the centre of England, and the law had been general over the rest of the kingdom; on the promulgation of the King's laws in a new foreign dominion, that law would, as a general law of England, have been introduced with the other general laws. Had the exception in 2 Geo. 2, been to York or Birmingham instead of Scotland, it would not have operated as a reason for not establishing it in Calcutta. Here again it is said, that 2 Geo. 2, did not extend to India, and that no indictment thereon against any person whatever, whether English or native, resident in the said provinces, could be legal;" the whole of which is immaterial to the charge. It does not state that which alone would have been material, that 2 Geo. 2 did not extend to Calcutta, nor that an indictment thereon against an Englishman, or native of the provinces, or of any other country on the globe, being a resident inhabitant of Calcutta, was not legal. These are the true facts; but the truth could not be stated: had it been stated, the charge that the indictment was illegal tion. This objection being stated so as to make it conformable to the case before the House, by leaving out the word native' as totally immaterial, and by substituting the word Calcutta,' as it ought to be, for the words country,' and inhabitants of Calcutta' for the word nation,' it will stand thus: that the trial, sentence, and execution was contrary to natural justice, because forgery was not capital by the laws of Calcutta, of which the Mahah Rajah was an inhabitant; that it is contrary to the principles of justice, &c. to subject Calcutta (an English town) to the penalties of a foreign law (meaning English law); the premises are apparently false, and not one of the consequences stated in the objections are deducible from it. Nundcomar, who was tried, as is charged, as an inhabitant of Calcutta, can with no justice or propriety be considered as an inhabitant of the provinces at large; for an inhabitant of Calcutta stands characteristically distinguished from an inhabitant of the provinces, both by the 13 Geo. 3, and the charter. That the gentleman who drew this article has critically examined both, appears by the acute objections taken to the charter from that Act; I am therefore rather surprised so obvious a distinction could have escaped him. A citizen of London is subject to certain penalties for certain offences cognizable only by the bye-laws of the city-shall he, when sued as a citizen of London, claim an exemption as a native of the kingdom at large, as being subject only to the general laws of England? As a citizen of London, in that case, he is contra-distinguished from a native of England. It is not true, as is surmised in the sixth objection, that the proceedings in this cause have introduced the said statute of 2 Geo. 2, "as binding in India" at large; nor does a conviction of an inhabitant of Calcutta on that statute authorize any conclusion that the judgment of the court went on any general ground; "that the whole body of the English penal laws was transplanted without distinction, selection, or modification, into the said provinces, and became binding on the said inhabitants." How that may be on the true construction of the statute and act of parliament, is not necessary to the present discussion. I do again most solemnly declare no such determination had been made by the court whilst I presided in it. and under the new jurisdiction, but was in truth tried as an inhabitant of Calcutta, which he really was, the proceedings are no farther justified under the charter than as it gave the same jurisdiction to the judges in the town of Calcutta, which was exercised by the President and Council under the charter of 26 Geo. 2, and as the | law had been introduced by the charter of 26 Geo. 2 not by that of the 13 Geo. 3, which only continued it, the charter of 2 Geo. 2, being granted in 1753, and therefore long prior to the commission of the crime, which is alleged to be in 1770, though in the supposed case it was an er post facto law, yet in the actual case it can with no colour be called an ex post facto law, but was a law not only established by royal charter in Calcutta, long before the erection of the Supreme Court, but had actually been put in execution, and was well known to all Hindoos there, long before the commission of the crime for which Nundcomar suffered, though he is stated to have been executed on an e post facto law. This is not new to the House; for though it is thus charged, the whole I have now laid before the House to prove it not an ex post facto law, appears in the report of the committee to To make this also conformable to the which Touchett's petition was referred by real case, if the same alterations are made the letter of the Court of Directors to as in the last objection, it will stand thus: lord Weymouth, which forms No. 3, in that the statute of Geo. 2, could be bind- the appendix to that report: to refute this ing in Calcutta only, on the general ground very serious objection, nothing is necesthat the whole body of the English penal sary but the very report of that committee, laws was transplanted into Calcutta, and which is held out to be one principal became binding on its inhabitants, which ground to support the charges against me. is admitted; and whatever the case might I esteem that part of the charge which have been with regard to the supposition alleges the causing Nundcomar to be as relating to India and the provinces at convicted on false and insufficient evilarge, which is the ground of the objec-dence, as introduced more for the purpose tion; this will be found, with regard to the fact and as relating to Calcutta, to be expressly supported by the statute and charter, and to be repugnant neither to reason nor justice. As to the seventh objection, had it been true that Nundcomar had been tried as an inhabitant of the provinces at large, under that part of the charter which gave a new personal jurisdiction, and was in truth introductory of new law, as in that case, that new law would not have been introduced till after the commission of the crime; it would have been in that case an ex post facto law, and liable to every imputation flung on ex post facto laws, but as it is not true that Nundcomar was tried as an inhabitant of the provinces at large, of impeaching my conduct than the vali dity of the verdict; and as it will be ne cessary for me to appeal to the evidence, when that accusation is directed to particular facts, charged as aggravations on this head, I should trespass on the time of the House too long, if, on this general charge, I were to observe on all the evidence given on that long trial; I must therefore rest on the candour of the House, that before they assent to the truth of this proposition, they will peruse the whole trial, and judge whether the objection be really founded on fact. "As to having been executed in a manner shocking to the religious opinions of all the Gentoo inhabitants within the said provinces," the effect of it in Cal cultta, not beyond it, is solely material. If the laws of England were, as I have shown them to be, in full force in the town of Calcutta, they could only be executed in the manner directed by those laws. The sentence for felony is, that the convict be hung by the neck until he his dead. No discretion is left in the judge to vary the mode; and to do it, is by our law books, treated as criminal in the highest degree. Some go so far (though certainly too far) as to say that it is not in the power of the King himself; that he may indeed pardon part of the sentence (as in high treason all but beheading), but that he cannot order execution to be done in a manner variant from the sentence. That Hindoos of all casts, Brahmins included, had been thus executed, I had the most authentic information before this convict suffered; for though the cast of the Brahmins is high, the individuals are frequently of the meanest of the people. I was particularly informed by a gentleman formerly a member of the council in Bengal, and now of this House, who has this day repeated to me the same information, that he had himself carried such sentence into execution against two Brahmins, without any disturbance, and even with the consent of the Hindoos themselves. The prosecutor who sued for the execution in this case was an Hindoo; many of the witnesses were Hindoos; what the sentence must be was well known to the prisoner, the prosecutor, and all the Hindoos in the settlement; yet no objection was made by the prisoner or his counsel before or after the sentence was pronounced, to the mode by which he was to suffer death; no evidence was given of its "being shocking to the religious opinions of the Hindoos;" no mention of it is made in the address of the Hindoos. No petition for mercy, though it might object to the punishing a Brahmin by death, is asserted to have made any distinction between the modes of suffering death, or that the hanging by the neck was more shocking to their religious principles than if the execution had been by the sword. It was from the report of the committee to whom Touchett's petition was referred that I was first informed of such distinction. It is urged against me as a criminal inconsistence of conduct," that I had on other occasions expressed my opinion on the inconvenience and mischief of inflict ing the same punishments which are inflicted in England for the like offences:" and it is added, "that my practice, and that of the Supreme Court, has accordingly been to depart, in various instances, from the letter of English law, and to modify it according to their discretion, in such manner as appeared in these instances to render it more applicable to the circumstances of the said provinces, and of the inhabitants thereof; and I did therefore deem it competent for me to depart from the rigour of penal statutes, and was not bound, according to my own principles and practice, to adhere to it more in this than in other cases." On one occasion, From the manner in which this is stated, the House might be led to believe, that I had expressed my opinion with re gard to punishments under penal statutes in some judicial proceedings; and that the court had adopted that opinion, and had inflicted punishments, different from those ordained by the English laws; than which nothing can be farther from the truth. The other occasions will be found to be resolved into one. and one only, I did express myself in the very words of the article; but that was in no matter which was in judgment, nor in court; it was in letter to lord Weymouth of 25th March 1775, written in consequence of directions which I had received before I left England, to correspond with the Secretary of State, and to point out such matters as might be useful in the administration of justice; the letter is before the House: this is the paragraph from which the words set out, are extracted; when the contents are shown, it will appear with what candour, and with what application to the execution in the present instance. These are the words:" The court has already found great inconvenience in being obliged to inflict upon offenders the same punishments which are inflicted in England for the same offences. I hope I shall not incur your lordships censure (though I know it would be a very unpopular proposition in England), the subjects here on which the law is to operate being so different from what they are in England, if I submit to your lordship's consideration, the propriety of allowing the Supreme Court a discretionary power of condemning an offender convicted of a crime not capital, to such punishment as he shall think his crime shall deserve. Transportation, from the nature of it, is a sentence which in this § country cannot be put in execution. Imprisonment to the inferior indolent.Indian is no punishment; give him a space to lay upon, rice and water, it is a reward. Fines are very unequal punishments: the poor cannot pay them; and if the person condemned is not of a cast or rank to which imprisonment would bring disgrace, the richest here would not pay the smallest fine to avoid it. Condemnation to the public roads and works is a punishment commonly inflicted by the ancient and modern laws of this country, which would take off the objection which is made to inflicting the same punishment in England." This will be found expressly to except capital punishments; it specifies the punishments which have been found difficult and inconvenient to be put in execution, and assigns the reasons. No such difficulty had arisen with regard to capital punishments. It was not known to the court that the English mode of execution in capital cases was objectionable; nor have I any reason now to believe, however it may be in other parts of India, that suffering death by hanging is in Bengal more shocking to the religion of the Hindoos than the suffering of death by the sword. Though this representation was made under an idea that the alterations proposed might be conducive to justice, neither I, nor any of the judges, would have thought ourselves justified in assuming any discretionary powers of varying the sentence and execution under any criminal law, much less in capital cases. Notwithstanding the positive assertion in the article, I defy the production of any proof whatever that it has been, in respect to any criminal sentence (to which this observation only can apply), my practice, or that of the Supreme Court, to depart in any instance whatever from the letter of English law, and to modify it according to our discretion" for any purpose whatever, or that I ever "did deem it competent for me to depart from the rigour of such penal statutes" as have been the ground of any judgment of the court. Those were not my principles and practice; I adhered to the law. I should have held myself criminal if Nundcomar had been executed by the sword; nor could I have answered in this place, or elsewhere, for having inflicted any other punishment on him than by hanging. Having proved that 2 Geo. 2, could be legally carried into execution, I come next to consider the particular circumstances which ought to have exempted this case from it, and which are urged as aggravations of the offence of enforcing it. To prove that the prosecution was not carried on for the purpose of justice, but to protect Mr. Hastings from the consequence of charges against him, it is alleged that a prosecution for "a conspiracy was commenced against Nundcomar to defeat his accusation," and that " before any indictment found for the conspiracy, he was indicted for the forgery.' No proof whatever was attempted to be given, nor was it ever surmised at the trial, that the prosecution for the conspiracy was commenced for that purpose. Two indictments for conspiracies were found against him and others at the same sessions in which the indictment for forgery was preferred. Whether those for the conspiracies or that for the forgery had the precedence, I never knew, nor can I con-ceive it to be material. No order was made as to the priority of the trials; the indictments came on for trial in the usual order. Felonies are in general tried before misdemeanors: but it is the universal practice at every sessions which I have attended, either in England or Bengal, when an indictment for felony, and another for a misdemeanor, is found against the same person, to try him for felony first, because, if found guilty of that, it would be unnecessary to put him to answer for the lesser offence. The court would not have tried the indictments for the conspiracies, except for the purpose of convicting the other defendants who were joined in the same indictments. There was nothing on the face of the proceedings to connect the conspiracy at the prosecution of Mr. Hastings and others, with the prosecution for forgery at the suit of Mohunpersaud; nor was it even suggested by the counsel or the prisoner, that there was any connexion between them. The court had not then, nor have I now, any grounds for a suspicion of the kind; no connexion being shown, or even hinted at, in the trial. What new ground is there for the positive assertion made in the charge, that the prosecutions for the conspiracy were instituted to defeat the accusation brought by the prisoner? Inferences to support the same assertion are drawn from these circumstances: "That the forgery had been committed five years before," that it had been, and was at the time of the commence- | ment of the prosecution, the subject of a civil suit in the Dewanny Adaulut, a country court of justice, and that no steps had ever been taken to make the same a matter of criminal prosecution, much less of a capital indictment, until he (Nundcomar) had become the accuser of the Governor-general." That the prisoner had been under the especial protection of Mr. Hastings, from the time of the commission of the crime to the establishment of the Supreme Court, is in evidence before the House, from the minutes of general Clavering and colonel Monson; and Mr. Francis, of the 15th of September, 1775, which are in the appendix to the report of the committee, to which the petition of Touchett and others was referred, in these words: "It ought to be made known to the English nation (this is said in a secret minute), that the forgery of which the Rajah was accused must · have been committed several years; that in the interim he had been protected and employed by Mr. Hastings," that he was under his protection, and that, by order of the East India Company, is farther proved, by the positive oath of Mr. Hastings himself in his evidence given on the trial of an indictment against Joseph Fowke and others. It was in evidence at the trial, that Mr. Palk, judge of the Adaulut, had confined him. It was notorious that Mr. Hastings had ordered him to be released: this of itself was sufficient to prevent any native inhabitant of Calcutta from commencing a prosecution against him, for there was then no other criminal court to resort to but that in which Mr. Hastings presided. It was in evidence also, that the prosecutor had it not in his power to commence a criminal suit, even in the court in which Mr. Hastings presided, or in any other court, before the time at which the indictment was actually preferred; for the forged instrument was deposited in the mayor's court, and could not be procured from thence: It was not restored to the party entitled to it till after the records and papers of the mayor's court had been delivered over to the Supreme Court. One main cause assigned for erecting the Supreme Court, was, that the Company's servants either presided in, or could influence, the other courts. The Supreme Court, the only court where Mr. Hastings's influence could not extend, sat for the first time towards the end of October, [VOL. XXVI. ] 1774. In June, 1775, at the first effective court of oyer and terminer and gaol delivery held by that Court, the indictment was preferred and tried. That the endeavouring to procure the papers from the mayor's court was intended as " a step taken" towards a criminal prosecution, before Nundcomar became the accuser of Mr. Hastings, I have no evidence to prove; but that no effectual steps could have been taken I have given, satisfactory proof. As there had been no delay in the prosecution, as the point of time when the prosecution was brought, was the first possible point of time when it could be brought, no presumption whatsoever could arise from lapse of time, or the coincidence of the prosecution of Mohunpersaud, with the accusation before the council, or from the unavoidable accident of the prosecution not having been com menced until he had become the accuser of Mr. Hastings. That the accusation was the cause of the prosecution of Nundcomar by another person; that it had been the subject of a civil suit in the Dewanny court, there was no legal evidence; the proceedings themselves, or authenticated copies, ought to have been shown; parole testimony was not admissible. It did not lay on the prosecutor to produce them. Had they tended to the defence of the prisoner, he should have produced them: his not doing it, at least induced a strong suspicion that they would not have made for him: that suspicion was strengthened by the evidence given that he had been imprisoned by Mr. Palk, the judge of the court in which the proceedings were supposed to have been had. The matter therefore having been in a civil court, as he made it no part of his defence, but chose to keep back the evidence, furnishing a fair presumption against him, it could not with justice have been applied by the court to fling an imputation on the prosecution, nor did it give any appearance that the prosecution bore any relation to the accusation against Mr. Hastings. From premises thus laid down, it is affirmed that Nundcomar "was an object of especial protection from the circumstances in which he stood :" "That it was my bounden and sacred duty, as chief justice, to afford protection, so far as it might come within the limits of my function and office so to do." What is meant by the nature of the protection to be afforded, and what is asserted to be within [4 T] |