nant to the laws and customs by which they have formerly been governed.

Under each of these heads, the Directors of the East India Company stated a variety of facts, and added arguments on the consequences likely to result from the jurisdiction assumed and exercised by the Supreme Court of Judicature. Of these, the committee of 1781 select, for detailed observation, the Patna cause, the Deccan cause, the Cossijurah cause, and the proceedings against Rajah Nundcomar for forgery; conceiving them to be best calculated to elucidate the principles by which the proceedings of Sir Elijah Impey and his colleagues had been governed.

It is not necessary for us to follow them through the voluminous narrative of the above-mentioned events, which, though they may be usefully consulted to illustrate that part of the history of the Supreme Courts, which is comprised between the years 1773 and 1781, were, most of them, cases in which writs of mesne process, issued by the Court, had been obstructed at the instigation, or with the connivance, of the Governor and Council. The cases which more immediately bear on the present inquiry, are those of Sudder al huc Cawn and Scroop Chund, respecting which the Committee report as follows:

'Your Committee find that the Supreme Court of Judicature have exercised jurisdiction over the Naib Subah, or Nabob's Deputy, in the three provinces. The Naib Subah is an officer who holds his appointment from the Nabob of Bengal; he presides in a court composed of various persons skilled in the Mohammedan laws, which court superintends the whole criminal jurisdiction of the three provinces; the provincial officers of criminal jurisdiction receive their appointments from him, and make a monthly report of the proceedings of their respective courts to him; and no capital sentence can be carried into execution, until such sentence is confirmed by the Naib Subah, or the Nabob himself, Your Committee observe, that, in a minute made by the Governor-General on the 9th of March, 1780, he states, that Sudder al huc Cawn, the late Naib Subah of these provinces, had a writ of Habeas Corpus served upon him, in his durbar or court, by a sheriff's officer, in the month of January, 1779. That Sudder al huc Cawn, being apprehensive of doing any act which might be construed an acknowledgment of his subjection to the jurisdiction of the Court, and at the same time cautious to avoid offence, desired the officer to leave the writ on a chair in his presence. The officer, on his return, made affidavit of the fact, with such a colouring of it as induced the Judges to regard it as an insult offered to their authority, and immediately to order an attachment to issue against him. The Governor-General further states that, fortunately, the execution of the writ was stayed, by an affidavit of the commissioner of law-suits, which afforded him time to use his influence for preventing it ultimately from taking effect;

and that he was alarmed for the consequences which would follow from such an outrage, so publicly offered to the person of the man in whose hands was placed the whole criminal jurisdiction of the provinces, if permitted, and which could only be prevented by means which he dreaded as much. The Governor-General adds, that he prevailed upon Sudder al huc Cawn to write a letter of concession to the Chief Justice. The Supreme Court ordered that the writ of attachment should not issue out of the office of the Clerk of the Crown, until the first day of the next term, or until further orders. The Governor-General concludes with remarking, that the writ was never afterwards enforced or noticed, but remained impending as a terror over the head of the Naib Nizam until the day of his death; and he believes that it exists even to the day he wrote that minute. Your Committee find some strong observations on the proceedings of the Supreme Court against Sudder al huc Cawn, in the letter of the Governor-General and Council to the Court of Directors, of the 25th of January, 1780.

Scroop Chund was committed into custody by the Provincial Chief and Council of Dacca, for an arrear of revenue alleged to have been due from him to the Company, as Malzamim or surety for the rents of a district, called Deccan Savagepore; and also for a considerable balance of cash alleged to be paid into his hands, as cazanchy or treasurer of the revenues of that provincial division. The former claim he disputed; the latter he acknowledged to be just, but refused to discharge. The reasons for this refusal not appearing satisfactory to the provincial council, they continued their restraint upon Scroop Chund, declaring, in their letter to the Governor-General and Council, dated August 26, 1777, that as that was the first instance they had experienced of resistance to the orders of Government, and had been made by a person holding one of the principal offices under that council, the release of Scroop Chund, after his public defiance of their authority, would render nugatory any future exertions of the powers vested in them for obtaining payment of the Company's revenues; and Scroop Chund, after a personal examination before the provincial council, on the subject of both claims, was declared by them to be dismissed from his post of treasurer, as unworthy the trust he held.

'And your Committee find that an order had been given at this time by Mr. Justice Hyde, with a rule to show cause why a writ of Habeas Corpus should not issue to the provincial council to produce the body of Scroop Chund; and the justice, not being satisfied with the reasons exhibited to him by the Company's attorney, who applied to him for that purpose, ordered a writ of Habeas Corpus; in consequence of which Scroop Chund was delivered up by the Provincial Council. When the return to the writ of Habeas Corpus came to be argued before the Court, on the 19th of September, 1777, the counsel for Scroop Chund moved to quash his own writ for informality,

which was granted, and an amended writ was served in court upon the Nazir, or officer of the provincial court, in whose custody he had been; and the counsel for the Company asked for a longer term to make a return thereto : "Because the Governor-General and Council considered this business in so very serious a light, and a thing of such consequence to the Company's revenues and collections in the country at large, and in the district of Dacca in particular, that they wished to have the highest authority possible, either to confirm them in the exercise of their jurisdiction, or to abolish that jurisdiction entirely, and by that means effectually put a stop to the collections." But no longer time was granted than the following day; and it was declared by Mr. Justice Le Maistre, senior judge then on the bench, that Scroop Chund appeared to have been confined with a severity not usually practised upon prisoners for debt, so that he could not eat, or perform the ceremonies of his religion; and the Court could not, without injustice, refuse an immediate return to the writ. However, it appears that the allegation of unusual severity, in the confinement of the prisoner, was denied by the other party, and their exculpation from this charge was supported by affidavits of the officers of the Khalsa (or exchequer), supposed to be particularly conversant in the ancient usages and customs of the country government.

'And it appears, by a letter from the Company's attorney, that the return was argued in court the ensuing day, being the 20th of September, 1777; that the Company's counsel moved for a longer term, complaining of the shortness of the time allowed, being only twenty-four hours from the serving of the writ, that inquiries might be made into circumstances which were judged dubious, and answers might be received from Dacca, to points it was absolutely necessary to ascertain, which, from the distance of that place, your Committee understood would require at least six days; and offered that Scroop Chund should, in the mean time, be permitted to go out on bail twice in the day to eat; and that the said motion was not granted by the Court; that then the Company's counsel proposed to give the prisoner enlargement upon bail, so that he should not leave the settlement, but that "the two judges present would not accede to any terms, unless a total release was given to the prisoner, without restraint or confinement to any place; and the security to be given was, that he should appear and pay any sum of money which any competent court of judicature should adjudge to be due to the United Company of Merchants of England trading to the East Indies." The attorney would not acquiesce in this kind of release, nor to a bail-piece so worded, as thinking it "either entirely nugatory, or liable to many litigations, with regard to the opinion of the judges present as to the competency of the Court which might decide hereafter on this matter;" and thereupon Scroop Chund was discharged.'

We have been thus particular in the statement of these two cases,

in which the authority of the Supreme Court of Bengal to issue writs of Habeas Corpus was asserted and opposed, because we find in the argument of Messrs. Denman and Alderson, an attempt to infer from the silence of the 21st of Geo. III. on the subject, a parliamentary recognition of that right. These writs of Habeas Corpus,' says the latter learned gentleman,' were all moved for between the 13th and 21st of Geo. III. Your Lordships would therefore have expected to find in the 21st Geo. III. some limitatation of the power which had been exercised, if it was not intended to continue it; but there is no such limitation, and the power remained precisely the same in those respects. The Legislature limited it, in some respects, but not in this; which is a strong parliamentary recognition of the power in the Supreme Court of Calcutta to issue those writs. In the Court of Madras the same has existed; his Majesty therefore was advised to give his royal assent to the act constituting the Supreme Court of Bombay, after the other two Courts had exercised this jurisdiction from the year 1775 up to the 4th of Geo. IV., and then a similar power is to be given to the new Court constituted, and it is to have all the powers of the Court of Calcutta and Madras. It is a strong confirmation of our view, therefore, when I shew that from the origin of this jurisdiction the government of India, with Mr. Warren Hastings at its head, seems to have taken the same view of the question.'

There is just enough of truth in this ingenious statement of Mr. Alderson, to give colour to the conclusion attempted to be drawn from it. That colour, however, will be found to fade very sensibly on closer inspection, and disappears altogether when the facts are carefully considered. It is true, undoubtedly, that writs of Habeas Corpus were granted by the Supreme Court between 1773 and 1781; it is also true that Warren Hastings made returns to some of them, under an impression that they were legally issued; and Mr. Alderson might have added, that one of the objects of the 21st Geo. III., as appears from the 28th section, was to indemnify the said Warren Hastings and his Council for resistance to writs duly issued by the Supreme Court. It is not, however, true that the power of the Supreme Court to issue these writs has never been questioned, or that it was exercised in Bengal until the date of the Charter for Bombay. That its exercise previous to the 21st Geo. III. was a matter of complaint and remonstrance on the part of the Company, is clear from the cases of Scroop Chund and Sudder al huc Cawn, and satisfactory reasons for the omission of an express provission upon the subject may be found, without being driven to the inference at which Mr. Alderson would wish us to arrive. The Committee on whose report the bill was drawn up, state that they had applied themselves in examining the matter of the petitions referred to them, to the general administration; 1st, of Civil Justice; 2dly, of Criminal Justice; 3dly, of Justice

in Revenue matters, or cases which arose from obligations contracted on account of the revenue. Now, under one of these three heads all the cases of Habeas Corpus very appropriately range, and the enactments of the 21st Geo. III. are sufficiently large to prevent the recurrence of the inconveniences which the issuing of those writs had at that time occasioned. By the 8th section of that Act it was enacted, that the Supreme Court should not have any jurisdiction in matters concerning the revenue; by the 9th, that no person should be subject to the jurisdiction of the Supreme Court on account of his being a landholder, or farmer of land; and by the 10th, persons in the service of the Company, or any British subjects were exempted from its jurisdiction in cases of inheritance or succession to lands and in matters of dealing or contract between parties, except in actions for wrongs or trespasses, and in any civil suit by agreement between the parties in writing, to submit the same to the decision of the Supreme Court.' Now these enactments embraced all cases of the same character as those which had at that time been disputed between the Governor-General and the Supreme Court. Besides, the question came before Parliament on petition from the Directors of the East India Company, and they probably were reluctant to propose, as distinct matter of complaint, the exertion of an authority, which only seven years before had been declared by them essential for the protection of the Natives. That Warren Hastings at first admitted and Sir Elijah Impey always maintained, the power of the Supreme Court, under the 13th Geo. III., to issue writs of Habeas Corpus, is perfectly clear; but it is also indisputable that the East India Company, in 1773, were of opinion that it conferred no such power; and the debates in Parliament, on the Regulating Act of 1781, prove beyond doubt that that act was designed to take it away if it then existed.*

In the Commons, Mr. Dempster, a member of the Committee, strongly protested against the injustice of denying the writ of Habeas Corpus to the Natives of India, and contrasted their comparatively free condition under the 13th of Geo. III., as interpreted by Sir Elijah Impey, with the utter helplessness and subjection to which they were reduced by the Bill before the House. Mr. Burke replied to Mr. Dempster, that however much we might value the privileges secured to us by a free constitution, the Natives were much more attached to their own laws and customs; that it was impolitic to frame regulations for an ignorant and superstitious people on the model of the institutions of a civilized state, and that the inhabitants of India preferred tyranny and insecurity after their own fashion, to any protection which the laws of England could extend. Lord Radnor, in the House of Lords, entered his protest against the Bill, in terms which leave no doubt of the understanding of their Lordships.†

* Parliamentary History of England, vol. xxii. p. 631.

The Bill to explain and amend so much of an Act made in the 13th of