« PreviousContinue »
I shall ever be for furnishing the East India | sel for the Company to have laid it before the Company with every right and every assistance, Court. judicially or extra.jndicially, which I think i But the close of the letter is really alarming ; legally may, be íbe application ever so im- it is addressed to the governor general and proper, or the conduct of their servants 60 ex. council: speaking of complaints being received ceptiovable.
in the court; he says, “ You, gentlemen, I We have asserted the impropriety of this hope, will not approve of such a proceeding, mode of application ; they give po attention to but speak in such terms to the gentlemen of our representations, and pay no respect to our the Court, as will prevent my affairs from unanimous opinions. There is no power bere being impeded or disgraced.” Did the Nabob to decide between us; they still persist : no- ever write in this style to the governor and thing but absolute outrage will provoke us to council before? The letter is transmitted to us appeal to his majesty, or their honourable em- after our opinions have been given. Jf it is the ployers : we will not increase the embarrass- real opinion of the Nabob, that we can be spoke ment bis majesty's ministers must labour to in such terms as to influence our judgments, under on account of ludia affairs, nor add to from whence did he learo it? We bave a right the distress of the East India Company: the to demand of the council, that, in answer to proceedings will be sent to both : our conduct that letter, they do acquaint him, it is bighly shall speak for itself, without a comment : in derogatory both to the honour of the council the mean time, we must steer between creating and the Court, to entertain any idea that the confusion and losing our dignity.
council would speak in the terms he desires ; The letter from the council encloses one of a and if they did, that the opinion of this court most extraordinary nature from the Nabob Mu. could be in the least influenced by thein. We barick: bis situation is such, that there is no man, think it necessary, on this occasion to assert, if either in England or in India, will believe he a contrary idea should any wbere prevail, that would be induced to write such a letter, was it there doth not reside in ihe governor general not either dictated to him by the agents of those and council any authority whatsoever, to corwho rule this settlement, or unless he was per- rect or control any acts of the judges, either in fectly convinced it would be agreeable to, apd or out of the court, be those acts ever so errocoincide with, their sentiments. We always neous: and that no supposed necessity whatsohave and always shall consider a letter of bu- ever can authorize any check or control over „siness from tbat Nabob, the same as a letter those acts. The law of necessity is the law of from the governor general and council. tyrants: if the governor general and council
He says in that letter, that, if complaints should assert such a right, as they make themagainst bis Vakeel are to be admitted in the selves judges of the vecessity, they, and not Court, it will reflect the greatest disgrace and the king's justices, would administer the law indignity on him.
in this country: There never was such an idea entered into We could have hoped that the governor the head of an Indian Nabob with respect to his general and council, instead of transmitting Vakeel. The Vakeel, ip bis memorial, has no this insulting letter to the Court, desiring such such idea; he claims only as a new right given illegal interposition, would have acquainted the to him by the laws of England, of which right Nabob bow highly criminal it would be in them he was wholly ignorant.
to comply with his solicitations. That is not all: I have an affidavit in my I cannot belp observing a small circumhand, made by Roy Rada Cburn for a different stance. I bave, sioce the claim made by the purpose. He says, “I never beard of the word council for Roy Rada Churn, received two let• public minister:' I understand vakeel; but ters from the Nabob directed myself, and what is the meaning of public minister I know one original letter from him, directed to the gopot; vakeel is one thing, elchee is another. veroor general and council, inclosed in a letter never before imagined I sbould have been ex. from them to the court. Though improper, empted froro punishment because I was a va- we took no notice of that letter. I had before keel. People every where respect the vakeel received letters from him; they had the usual of the Nabob. I never before heard, that if alcob, the same that is given to the first in the vakeel of the Nabob, or even of the King council
. The letters to me since the dispute, to himself, should commit a crime, he would be give him a higher air of consequence, make exempted from the punishment established for the alcob mnch inferior. The same artifice is such a crime. Perhaps, if the Nabob or King made use of in that sent to the governor gewas to write a letter, ihe vakeel might be for- neral and council. The alcob sent to the go. given.”
vernor general and council is infinitely inferior I will order a copy of this affidavit to be de. to that formerly sent to the first in couucil and livered, with the minutes of the Court, as it will myself. They best know whether at any give great light into this matter.
other period they would bave admitted a letier Can any one after this believe, that the Na- from him with that alcob. They best know bob himself really entertained the sentiments whether the Company in future is to be treated which he adopts in the letter ?
with the same inferiority. Jf this was the opinion of Roy Rada This observation will not be so striking to Churn, it would have been candid in the coun- those who are not conversant with the customs VOL, XX.
and ideas of the natives, and do not koow how | sired, to present partial and malicious repretenacious they are of that address.
sentations, that the Company would employ a If our opinions are carefully examined, we person able to take down the opinions of the think no doubt can arise as to the question of Court correctly. signing warrants for the execution of criminals. I can foresee no political consequences from But, lest they may have taken their idea of our decision : but be it remembered with what our judgment from loose notes and partial re reluctance we entered into the question. We presentations, the Judges have written their fung out what it was necessary for the council opinions, which were delivered on the late to maintain, and told them the consequences of question, and will transmit them to the gover. not maintaining it. We did it to save the hobor general and council, with the present opi- nour of government. We did it that they nion of the Court. Mr. Justice Chambers, lav- might not persist in a claim which we feared it ing taken no potes of what he said, bas deli- wopld be impossible for them to support. Tbey vered - bis opinion from his recollection and were judges of their owp politics. They urged such notes 'as the Chief Justice was able to us to a decision we wisbed to avoid. We were furnish him with. The opinion of the rest of obliged to judge, from the evidence before us, the Court is, as near as may, in the very words of the legality of the claim, not of the political they were delivered. But, lest any doubt after consequences. If, wbich we do not believe, that should remain, and to prevent any possi- any ill consequences follow to the state, they ble occasion of impeding or obstructing the jus- who unnecessarily' urged us to a decision, not tice of the country, we explicitly declare, that we who are bound to decide accordiog to law, there is nothing, in the opinion of the Judges, are answerable for them. Did tbey expect which ought to prevent the warrants being that we, who must administer justice accordsigned as usual by Naib Nazem, who is paid ing to our oaths, should, contrary to evidence, out of the Khalsa treasury. Nothing is decid- determine that, which, tbough withip their owu ed by that judgment, but that neither the East knowledge, they would not take upon themIndia Company nor their servants, both being selves to swear to? We do not know a worse subject to the laws of Great Britain, can, by character than a political judge ; we do not interposing the name of the Nabob, screen any know a more dangerous one. Can any one criminal from the justice of this court. believe this strong struggle with the Court is
We have expressly said, that our opinions simply to protect Roy Rada Chura ? Is iue did not affect the country courts established in dignus vindice? It is clearly to serve other this province.
purposes, which for fear of prejudiciog tbe enHow far Mubarick is a sovereign, with re. suing trial, I will not mention. But the afspect to the Company, in the opinion of these tempt is on mistaken principles. The rulers gentlemen, is apparent, by putting the ques- of a state sbould be very reserved in bringing tion, how they are to act with respect to the on political questions of real importance, er signing of warrants for the execution of criini- cept they are sure the law on the subject is pals. It is plain, we do not differ in opinion with them. Tbey must not expect complaiupon that question. Nobody, either in Eng- sance from judges. We must execute stern land or in India, will dispute to the chief jus- justice. Were judges to look to political cootice the making use of arguments because they sequences, they must ever be dictated to by have been used by the French ; nor can it be those that bold the powers of the state. It was thought that arguments are weaker because necessary to determine that question in this they have occurred to others. What the chief case. Mr. Justice Chambers avoided it, and justice said, was not simply his opinion ; if it binted something like what is advanced pow by was not in every circumstance the opinion of the council; but the other judges could not the whole Court, it was that of the majority of rest their opinion simply on the dates of the the bench had not he been there. But, in fact, credentials." As Mr. Justice Chambers was of neither the chief justice nor any of the jus opinion that an ambassador, a subject of the tices made use of the arguments attributed to state in which he is employed, is not amenable them. They never asserted there was any to the courts of justice where he resides ; Rada double government in this country. All that Churn, being a vakeel, and so accepted by the a negative is put upon is, the illegal exertion East India Company (if that should give him of the powers of a double goverument to defeat the right of an ambassador), on those principles the king's laws. They were very far from ought not be amenable to this court, though drawing the consequence imputed to them, the offence was committed when be was pot aa namely, that the proceedings of the courts of ambassador. The chief justice, though of s Dewanny, against the French who reside with different opinion, advanced what be said ea out those places that are assigned to tbem by that bead with a degree of diffidence; and only the Treaty of Paris, are direct attacks of the gave his opinion on which side the weight of English nation against that of France. We authorities lay. The other justices likewise never thought of the Treaty of Paris. We thougbt the same. think the position itself, as stated by the As to the question put concerning the right French, not true; and are astonished to see it of the sovereignty of this country; it seems to asserted as our opinion. We bave affirmed us as if it was meant to draw us into a dilemthe very contrary. We have frequently de- ma; but we were never less embarrassed as to
the state of Mubarick ul Dowlah; we have befure declared, it is not altered by this decision. Translation of the Affidavit made by Ror
RADA CHURN, before Sir Elijab Impey, As to the question between the Crown and the Company, it is of a very delicate nature : both
knigbt, the 4th day of July 1775. the Crown and the Company have been anxious “I
knew nothing with respect to the rights to avoid bringing it to a decision : we therefore of a Vakeel, or Elchee, till Mr. Farrer asked are much surprized that the servants' of the me what was my employment; to which I Company should press an extrajudicial opinion answered, that I was a Vakeel of the Nabob. upon it; nor, if given, do we conceive it would When Mr. Farrer and Mr. Jarret were together, operate upon their conduct. We should be I mentioned to them that I had been the Nabob's much concerned if they brought a case before Vakeel for near three years; and they caused us which would pake it necessary for us to an arzee to be written, which I signed. I determine it. We would aroid it it we could. imagine that it was necessary for me to obey If it became absolutely necessary, we would any order issued to me by the council, and that not retract from giving our opinion; but we I must attend upon them in conformity to any would not give it until we had heard every summons they may send to me.
I was one thing that could be said on either side, nor day called to appear before the council; or. until we had obtained all the liglits and infor- committee; and attended accordingly. The mation that could be obtained on the snbject. governor, the general, colonel Monson, and But we must decline precipitately and wan- Mr. Francis, were present; Comaul o Deen tonly giving an extra-jadicial opinion of so had before that presented some papers to Mr. much consequence, especially as such bigh of- Fowke: the gentlemen of the council asked fence was taken, that the Court bad tried an ine, if he had given the papers 10 Mr. Fowke indictment, in which a robbery, which was to keep, or with the intention that they might committed bere was charged to be committed be presented 10 the council. on the king's highway; it being erroneously · Mr. Farrer and Mr. Jarret caused a paper understood that the Court ibereby bad taken to be written out jo the English language, to upon itself to determine the very question now the truth of the contents of which I swore beproposed to the Court, though it had been, and fore Mr. Hyde; but they never explained the must have been, the form of the indictment words public minister to me, they only menwhen the president and council were justices tioned the word · Vakeel. Í koow pothing of Oyer and Terminer and Gaol Delivery. with respect to my having been dismissed from We will not enter into an argument on a mat- the service of the Nabob for ten days. The ter of law with the gentlemen ; enuch less Nabob never wrote any thing of it to me: break into their province, to decide upoo mat- perhaps Mr. Farrer and Mr. Jarret may have ters of politics. We should have declined heard it from report. Mr. Farrer said to me, taking any notice of this letter, had we not • You was not in the Nabob's service for ten days;' feared that occasion might have been taken and said nothing more. He probably beard ibis from our silence to put a stop to the criminal from others. I never beard any thing of it justice in the provinces.
from any one.
Mr. Farrer never told me that We take this opportunity to declare, that the i bad been dismissed from the beginning of the establishment of this Court hath made no alte month of Suffer. One day I went to the house ration in respect to the administration of crio of colonel Monson, who said, Perhaps you was minal justice, except only in this town and dismissed for some days from the service of the the factories subordinate to this settlement. Nabob: do you know any thing of it? I anWe declare it, that, if there is a stoppage of swered, I know nothing of it. This couverjustice, it may be clear that it is not occasioned sation passed after I had made the affidavit be. by this Cours.
fore Mr. Hyde. I never heard the words My brother Chambers bas pointed out to me public unioister,' I understand vakeel; but a passage in Roy Rada Churn's affidavit, wirich what is the meaning of public minister, I do I had neglected to make any observation upon. not know. Vakeel is one thing, and Elchee is
He says, . He thinks he is obliged to obey another. I never before imagined I should the orders of the council, and that they may have been exempted from panishment because • summon him. That, in fact, he was calleil I was a vakeel. People every where respect . to appear before the council wben those gen- the Vakeel of the Nabob. I never before beard 6tlemen, who make tbe claim for bim, were that if the Vakeel of the Nabeb, or even of • present. He said, in his instructions for the the King himself, should commit a crime, he affidavit, • It was not lett to my pleasure whe. I would be exempted from the punishment estather I would come or not; it was said, Conie.' bished for such crime. Perhaps, if the Nabob
What then was the sense of these gentle or King was to write a letter, the rakeel might men, as to his having the rights of an ambas- be forgiven. sador ? Is he not to be considered merely to * Mr. Farrer said to me, I heard that you elgde the justice of the Court?
were dismissed from the Nabob's service for The above, having been signed by all the ten days: this was after I had made the affiJudges, was sent, together with their former davit: I never before had beard a word of it, Opinions and the following Affidavit, to the
(Signed) “ Rada Churn." Council.
racy, combination, and agreement among them
selves as aforesaid, did, falsely and wickedly, Indictment.
for the evil purposes aforesaid, frame and make, “ Town of Cal- To wit. The Jarors for and caused to be framed and made, a certain cutta and Factory our lord the king, upon paper writing in the Persian language ; por. of Fort Willian Joseph Fowke of Calcutta, iben lately, hy divers sinister and unlawful
their oath, present, that porting, that be the said Warren Hastings bad
gentleman, Francis Fowke means, procured such false accusation as aforeof the same place, gentleman, son of the said said, in the name of the said Commaul ul Dees Joseph Fowke, Maha Rajah Noodocomar, Allee Cawn, to be made and wrote against the Banader, late of the same place inhabitant, and said Joseph Fowke, and bad presented the same Roy Rada Churn also of the same place inla- | to the said governor general and coopeil at Fort bitant, all of whom are subject to the jurisdic- William aforesaid, knowing it to be false ; tion of the Supreme Court of Judicature at thereby falsely and scandalously representing Fort William in Bengal, being persons of evil the said Warreu Blastings as guilty of the said name and fame, and dishonest reputation, and offence of procuring the said Joseph Fowke to wickedly devising and intending Warren Hast- be falsely accused. And ibe jurors aforesaid, ings, esquire, governor general of the presi- on their oath aforesaid, do further present, tbat dency of Fort William, in Bengal aforesaid, the said Joseph Fowke, Francis Fowke, Jaba not only of bis good name, credit, and reputa- Rajah Nundocomar, and Roy Raila Cbara, tion to deprive, and to bring bim into the ill. afterwards, to wit, on tbe said 19th day of opinion, hatred, and contempt, of all his ma- April, in the year aforesaid, ai Caleutta atorejesty's subjects in the said province of Bengal, į said, in Bengal aforesaid, accorving to the conand of the native inhabitants thereof; and by spiracy, combination, and agreement aforesaid, that means, as much as in them lay, to disturb between them had as aforesaid, dul, for the the good government of the said country, and purposes aforesaid, by certain siister and uethe management of the commercial concerns of lawful means, to wii, by intreates, promises, the honourable East lodia Company thereio, aud threats, procure the said Cum conspiracy, and wbich are so eminently intrusted to the said maul ul Deen Ally Cawn to affix on the Ar zee. Warren Hastings, but also to bring upon the his seal, containing the impression of his natne, said Warren Hastings the ill opinion and batred to the said paper waiting, so frained aud inade of the king himself, and of the two houses of as aforesaid; and that the said Joseph Fowke, the parliament of Great Britain, and of the pro- in pursuance of and according to ine conspiprietors and directors of the said East India racy, cornbination, and agreement, between Company, did, on the 19th day of April, in the hini and the said Francis Fowke, Mana Rajah 15th year of the reign of our sovereign lord Nundocomar, and Roy Radachurn, so as aforeGeorge the 3rd, by the grace of God, of Great said bad, afierwards, to wit, on the said 195 Britain, France, and Ireland, king, defender | day of April, in the year aforesaid, at Calculta of the faith, and so forth, in Calcutta aforesaid, aforesaid, in Bengal aforesaid, did, ayalist the in Bengal aforesaid, conspire, combine, and will and consent of the said Cummaul ni Deea agree among themselves, talsely to charge and Allee Cawn, and notwithstanding the express ,accuse the said Warren Hastings of divers declaratioir of bim the said Cummaul ui Deep enormous and scandalous offences; particu- Allee Cawn, that the said paper writing bad Jarly, that be the said Warren Hastings bad been forcibly and illegally obtained, and that then lately, by divers sinister and unlawful the contents thereof were false, take aod carry means, procured a certain false accusation away the said paper writing, and present the against the said Joseph Fowke, in the name of same to the governor general and council at one Cummaul ul Deen Allee Cawn, to be made Fort William aforesaid, or to some or one of and wrote, which said false accusation be the the members thereof, as an arzee or petiuion of said Warren Hastings had bimself presented to bim the said Cummaul ul Deen Allee Cawo to the governor general and council at Fort Wil the said governor general and council. And Jiam aforesaid, knowing it to be false; and also the jurors aforesaid, upon their oatb aforesaid, that be the said Warren Hastings had hereto- do further present, that the said Joseph Fowke, fore, corruptly and collusively, received several | Francis Fowke, Maha Rajah Nuodocomar, sums of money from the said Cummaul ul and Roy Rada Churn, afterwards, to wil, ca Deen Allee Cawn, in the nature of bribes, for the said 1916 day of April, in the year afore. services rendered or to be rendered to him the said, at Calcutta aforesaid, in Bengal aforesaid Cummaul ul Deen Allee Cawn; by that said, according to the conspiracy, combinameans representing him the said Warren tion, and agreement aforesaid, between thein Hastings as guilty of wilful bribery and cor- as aforesaid had, did, for evil purposes aforeruption in bis office and duty. And the jurors said, unlawfully, wickedly, and unjustly, aforesaid, on their oath aforesaid, do further frame and make, and caused to be framed and present, that the said Joseph Fowke, Francis made, a certaio paper writing in the Persian Fowke, Maba Rajah Nundocomar, and Roy language; purporting, that the said Warren Rada Churn, on the said 19th day of April, in Hastings and others bad, indirectly and collothe year aforesaid, at Calcutta aforesaid, in sively, received from the said Cummaul al Bengal aforesaid, according to the said conspi- Deen Allee Cawo, by way of bribes for services
rendered or to be rendered to bim, sundry sums unlawful means, procured a certain false accu. of money ; to wit, the said Warren Hastings, sation against the said Joseph Fowke, in the esquire, the sum of 15,000 ropees, Richard name of one Cummaul ul Deen Allee Cawn, Barwell, esquire, 45,000 rupees, and to Hoshyar 10 be made and wrote; which said false accus Jung, thereby meaning George Vansittart, sation he the said Warren Hastings had him. esquire, 12,000 rupees; and that the said Jo- self presented to the said governor general and seph Fowke, in pursuaoce of and according to council at Fort William aforesaid, knowing it the conspiracy, combination and agreement, to be false. And the jurors aforesaid, on their between bim and the said Francis Fowke, oath aforesaid, do further present, that the said. Maba Rajah Nundocomar, and Roy Rada J.Fowke, F. Fowke, Maba Rajah Nuodocomar, Churn, so as aforesaid had, afterwards, to wit, and Roy Rada Churn, on the said 191h day of on the said 19th day of April, in the year afore- April, in the year aforesaid, at Calcutta aforesaid, at Calcutta aforesaid, in Bengal aforesaid, said, in Bengal aforesaid, according to the said did, by divers sinister and unlawful means, to conspiracy, combination and agreement among wit, by force, threats and menaces, procure the themselves as aforesaid bad, did falsely and said Cummaul ul Deen Allee Cawn to write on wickedly, for the evil purposes aforesaid, frame the said paper-writing certain words, purport- and make, and caused to be framed and made, ing that he acknowledged such sums to bave a certain paper writing in the Persian lanbeen paid by bim, notwithstanding the express guage; purporting, that he the said Warren declaration at the same time of the said Cum- Hastings bad then lately, by divers sinister and maul ul Deen Allee Cawn, that the facts there- unlawful means, procured such false accusaby pretended to be acknowledged were false ; / tion as aforesaid, in the name of the said Cum. and potwithstanding in truth and in fact the maul ul Deen Allee Cawn, to be made and said Warren Hastings has not received such wrote against the said Joseph Fowke, and had several sums of money, or any part thereof, presented the same to the said governor gene. nor is guilty of all or any of the ebarges or ral aud council at Fort William aforesaid, accusations so made against him as aforesaid, knowing it to be false. And the jurors aforeto the great damage of him the said Warren said, on their oath aforesaid, do further present, Hastings, to the evil example of all others in that the said Joseph Fowke, Francis Fowke, the like case offending, and against the peace Maba Rajah Nandocomar, and Roy Rada of our said lord the king, his crown and dig- Churn, afterwards, to wit, on the said 19th nity. And the jurors of our said lord the king day of April, in the year aforesaid, at Calcutta further, upon their oath, present, that the said aforesaid, in Bengal aforesaid, according to the Joseph Fowke, Francis Fowke, Maha Rajab conspiracy, combination and agreement aforeNuodocomar, Babader, and Roy Rada Churn, said, 'did, for the purposes aforesaid, by certain all of whom are subject to the jurisdiction of the sinister and unlawful means, to wit, by entreasaid Supreme Court of Judicature at Fort Wil- ties, promises and threats, procure the said liam in Bengal aforesaid, being persons of evil Cummaul ul Deen Allee Cawn to affix bis seal, name and fame, and dishonest reputation, and containing the impression of his name, to the wickedly devising and intending Warren Hast- said paper writing, so framed and made as ings, esquire, governor general of the presi- aforesaid ; and the said Josepb Fowke, in purdency of Fort William in Bengal, not only of suance of and according to the conspiracy, his good name, credit, and reputation to de combination and agreement, between him and prive, and to bring him into the ill-opinion, ha- tbe said Francis Fowke, Maha Rajah Nundotred and contempt of all his majesty's subjects comar, Babader, and Roy Rada Churn, so as in the said province of Bengal, and of the inba- aforesaid had, afterwards, to wit, on the said bitants thereof; and by that means, as much 191h day of April, in the year aforesaid, at Calas in them iay, to disturb the good government cotta aforesaid, in Bengal aforesaid, did, against of the said country, and the management of the the will and conseut of the said Cummaul ul affairs of the honourable East India Company | Deen Allee Cawn, and notwithstanding the exthere, which are so eminently entrusted to the press declaration of him the said Cummaul ul said Warren Hastings, but also to bring upon Deen Allee Cawn, that the said paper writing the said Warren Hastings the ill-opinion and had been forcibly and illegally obtained, and hatred of the King himself, and of the two that the contents thereof were false, take and Houses of the Parliament of Great-Britain, carry away the said paper writing, and preand the proprietors and directors of the said seot the same to the said governor general and East India Company, did, on the 19th day of council at Fort William aforesaid, or some or April, in the 15th year of the reign of our sove- one of the members thereof, as an arzee or pereign lord George the third, by the grace of lition of him the said Cummaul ul Deen Allee God, of Great Britain, France, and Ireland, Cawn, to the said governor general and counking, defender of the faith, and so forth, at cil; they the said Joseph Fowke, Francis Calcutta aforesaid, in Bengal aforesaid, con- Fowke, Maha Rajab Nundocomar, and Roy spire, combine, and agree among themselves, Rada Churn, thus endeavouring to represent falsely to charge and accuse the said. Warren the said Warren Hastings as having procured Hastings of divers enormous and scandalous the said Joseph Fowke to be falsely accused ; offences; particularly, that be the said Warren whereas, iu truth and in fact, the said Warren Hastings bad then lately, by divers sinister and Hastings is not guilty of all or any of the