India Under British Rule. Wheeler James Talboys
act as magistrates or judges. The British collector became magistrate and civil judge.11 As magistrate he made over all prisoners for trial to a Mohammedan court, which was created in each district, but over which he maintained some degree of control. A cazi sat as judge and tried the prisoners, whilst muftis and mulvis expounded or interpreted Mohammedan law; but the British collector was present to see that trials were properly conducted, and perhaps to intercede when the punishment awarded was barbarous or cruel. This was little more than a reform of the existing system—such a reform as might have been carried out by an Akbar or Aurangzeb. For centuries Mohammedan law had been the common law of Northern India, and Hindu criminal law, with its hideous severities as regards caste, had been ignored by Mogul rulers, although, no doubt, caste laws were often enforced by the Hindus themselves.
Mixed civil courts: collectors, cazis, pundits.
Civil justice was administered more directly by the British collectors. In civil disputes, especially as regards inheritance and marriage, the parties concerned were necessarily guided by their own laws. Accordingly the collector sat as judge, but was assisted by Mohammedan lawyers in deciding cases between Mohammedans, and by learned Brahmans, or pundits, in deciding cases between Hindus. Under most circumstances the cazi or pundit must often have been the real judge, whilst the British collector was only the representative of the supreme authority.
Courts of circuit and appeal.
Courts of circuit and appeal were also appointed to travel through different areas, and sit as British judges of assize in both criminal and civil courts. Here was that same mixture of British and Asiatic judges as in the collectors' courts. But many changes were made from time to time in the judicial system, and the whole question will be better considered hereafter when dealing with the reforms of Lord Cornwallis, who eventually succeeded Warren Hastings as Governor-General.
Chief court or Sudder.
Meanwhile the Governor and Council still formed the chief court at Calcutta, and confirmed all capital sentences, or heard appeals in important civil cases, as in the old times when British authority was bounded by the Mahratta ditch. From time to time they passed regulations for the guidance of collectors, and eventually Warren Hastings drew up a clear and concise criminal code with his own hands. This chief court was known as the Sudder. It had a civil and a criminal side, and lasted as an institution down to the latest days of the East India Company.12
Patriarchal justice.
Under such circumstances British ideas of justice gradually superseded Mohammedan usages. Indeed it was impossible to maintain the criminal law of the Mohammedans in courts controlled more or less by British judges. Under Mohammedan law theft was punished by mutilation, adultery was punished by death, or not punished at all unless four eye-witnesses could be produced; whilst the most atrocious murderer might escape from justice by the payment of a blood fine to the kinsmen of his victim. Cazis and muftis might be nominally independent, but practically they yielded to British influences; and British judges administered justice in a patriarchal fashion, which might be condemned by trained lawyers, but was far better suited to the condition of the masses than British courts of law in the last century.
New members of Council and barrister judges.
§8. Whilst carrying out these reforms Warren Hastings was taken somewhat aback by the appointment of three English gentlemen, not in the service of the Company, to seats in the Calcutta Council. At the same time four barrister judges, equally independent of the Company, were sent out from England to form a Supreme Court of Judicature at Calcutta for the administration of English law, civil and criminal. The jurisdiction of the Supreme Court was to extend to all British subjects, and to all Asiatics who were servants of the Company or had dealings with British subjects. The Chief Justice was Sir Elijah Impey, who was known to Hastings, as the two had been schoolfellows together at Westminster. The three other barristers were puisne judges.
Regulating Act of 1773.
The three new members of Council and the four new Supreme Court judges had been appointed, not by the East India Company, but by Parliament and the Crown. The public mind in England had been greatly stirred by reports of maladministration, and in 1773 a "Regulating Act" had been passed to bring the administration of merchant rulers under some control independent of that of the East India Company. No offence was intended to Warren Hastings; on the contrary, he was raised by the same "Regulating Act" to the post of Governor-General, with a controlling power over Madras and Bombay on all questions of war and peace. He filled the chair as President of the Council, but besides him there was only Mr. Barwell, who belonged to the Company's service. The three remaining members were the three strangers and outsiders—General Clavering, Colonel Monson, and Mr. Philip Francis, the reputed author of the Letters of Junius.
Warren Hastings and Philip Francis.
§9. From the very first there were jealous suspicions in the Council between the two gentlemen in the service of the Company and the three gentlemen appointed by the Crown. In one direction Warren Hastings had laid himself open to an attack. In an evil hour he had lent the services of a British brigade to the Nawab Vizier of Oudh, and the Nawab Vizier had employed the brigade against the Rohilla Afghans on the north-west in a quarrel with which the British had no concern. The Rohilla Afghans were defeated by the British brigade, and then plundered and brutally ill-treated by the cowardly troops of the Nawab Vizier. Warren Hastings could only defend himself by saying that money was urgently required by the East India Company, and that the Nawab Vizier had paid heavily for the brigade.
Charges against Hastings.
Whilst Philip Francis and his two independent colleagues were denouncing this transaction, the idea spread amongst the Bengalis that the three new members of Council had been sent by the King of Great Britain to redress the wrongs of natives. Petitions against Warren Hastings were poured into the Calcutta Council, and seriously investigated by Philip Francis and his two colleagues, whilst Hastings and Barwell formed a minority and could not override their proceedings. Hastings was charged with having taken a bribe of 100,000l. from the Nawab Vizier of Oudh. Then it was said that the public auctions of zemindaries were shams; that the native servants of Hastings and others had succeeded in getting large estates at low leases, and that Hastings had shared in the gains. Finally, a Brahman, named Nundcomar, a man of notoriously bad character, charged Hastings with having taken bribes for certain lucrative appointments in the household of the Nawab at Murshedabad.
Nundcomar executed.
Warren Hastings might have rebutted the charges by producing his accounts, and allowing his steward and other servants to be examined before the Council. But he preferred standing on his dignity and refusing to answer the charges brought forward by Nundcomar, who was notorious for perjury, for forging other people's seals, and for carrying on secret correspondence with the enemies of the British. Suddenly Nundcomar was arrested on a charge of forgery, and tried in the Supreme Court by a full bench, comprising Chief Justice Impey and the three puisne judges, and, after a fair summing up, was found guilty by a British jury, and hanged accordingly.
Inaction of Hastings: extenuating circumstances.
Nundcomar was a Brahman, and in those early days no Brahman, under Hindu law, could be put to death; whilst killing a Brahman, even by accident or unavoidable circumstances, was regarded by Hindus as the most horrible crime that could be committed by man. Forgery was a capital offence under English law, but not under Hindu or Mohammedan law. Hastings might have reprieved Nundcomar, but would not interfere. Philip Francis and his two allies, Clavering and Monson, were insolent and aggressive in the extreme. They had pushed Hastings into a corner from which he could not escape without damaging his position as Governor in the eyes of the Bengali population. They were equally insolent towards Sir Elijah Impey and the Supreme Court. They demanded, in arrogant language, that every respect should be paid to the caste feelings of Nundcomar during his imprisonment; and whilst the trial was proceeding they addressed the Chief Justice in the language of reprimand, as though they had been his superiors. Sir Elijah Impey went so far as to consult Hindu pundits on the proper treatment of a Brahman under confinement,
The control over the country police was also transferred from the zemindars to the new magistrates and collectors. This measure was good in itself, but attended with disadvantages, which will be brought under review hereafter.
The old Sudder Courts at Calcutta, Madras, and Bombay finally disappeared in 1862, when they were amalgamated with the Supreme Courts, which will be described hereafter, and which, up to that date, were exclusively composed of barrister judges. In the present day they are forgotten by all but lawyers familiar with a past generation, yet the Sudder Courts played their part in the history of the past. In the beginning of the nineteenth century, when the Marquis of Wellesley was Governor-General, three civilians were appointed judges in the Sudder, one being a member of Council and the Chief Judge in the room of the Governor-General.