4. And the Lord said Unto

AND THE LORD SAID UNTO—

Reports of Cases Argued and Determined Before The Lords Of the Privy Council, 1829-31 By Jerome Wm. Knapp, Barrister-At-Law, Vol. I. [A note Contributed by Dr. B. R. Ambedkar ] The case In re justices of the Supreme Court of Judicature, which is reprinted below was decided on the 14th of May 1829. It would, however, be a mistake to suppose that the case is of antiquarian interest merely because it is 107 years old. The case is not only of interest to students of History but it is also of interest to students of Law and to the general public as well. Students of History know the jealousy and the hatred that subsisted between the Officers of the East India Company and the Officers of the crown during the period of Double Government that preceded the Mutiny. The reader of the Memoirs of Sir Edward West will recall how a Governor appointed by the East India Company contrived to have a duel with a Judge of the Supreme Court appointed by the King. To the student of History the case is of interest because it illustrates the length to which this jealousy and hatred between the officers of the Company and the officers of the King had gone in those old days. To the student of Law the case though old is of great and present-day importance. The issue raised in the case was whether the Supreme Court established in Bombay had a right to issue a Writ of Habeas Corpus against a person not residing within its original local Jurisdiction. That the decision had relation to the powers of the Supreme Court which has ceased to exist does not lessen the importance of the case to the student of present day Law because although the Supreme Court has ceased to exist the power of the present High Court to issue the writ of Habeas Corpus, outside its original local Jurisdiction is a question which can be answered only by reference to the powers which once belonged to the Supreme Court. This is so because according to the Letters Patent the High

Court has only such powers as once belonged to the Supreme Court. To know the powers of High Court one must know the powers of the Supreme Court. Sir John Grant, the Chief Justice of the Supreme Court was driven to make the application to the Privy Council which became the subject matter of the decision because the Government of Bombay refused to execute his writs. Although the general question– whether the law should provide that the Executive shall be bound to carry out the orders of the Judiciary was not a question directly in issue yet there could hardly be a question of greater importance from the standpoint of the general public. In any Political Constitution the Judiciary is the weakest organ as compared to the Legislature and the Executive. It depends upon the Legislature for the powers it possesses and upon the Executive for the carrying out of its orders. The Executive generally respects the orders of the Judiciary and carries them out. It is true that in the case reported, the Judiciary had no authority to issue a Writ and, therefore, the Executive was justified in refusing to carry it out. But an occasion may arise where an Executive out of spite or out of contumacy refuses to execute the Writ of the Judiciary. Should that happen Justice will remain hung up in the air and a grave public question might arise involving menace to the life, liberty and property of the citizen. These observations are suggested by reason of the contrast which one finds between the provisions in the New Government of India Act, of 1935 relating to the obligation of the Executive to carry out the Writs of the Federal Court or the High Court and analogous provisions in the Constitution of the United States and the erstwhile German Republic which served as an interlude between the fall of the Kaiser and the rise of Hitler. It would certainly be a profitable study to pursue this matter and the curious will naturally do so. (See overleaf the Judgment referred above)

By Petition from Bombay IN RE THE JUSTICES OF THE SUPREME COURT OF JUDICATURE (14TH MAY, 1829)

The Supreme Court of Bombay has no power to issue a writ of habeas corpus except when directed to a person resident within those local limits wherein it has a general jurisdiction, or to a person out of those limits who is personally subject to its jurisdiction [1 Knapp, 58].

The Supreme Court has no power to issue a writ of habeas corpus to the gaoler or officer of the native court such officer having no power to discharge persons imprisoned under the authority of a native court [1 Knapp, 58]. The Supreme Court is bound to notice the jurisdiction of a native court without having it set forth specially in the return to a writ of habeas corpus [1 Knapp, 59]. This case arose on the petition of Sir John Peter Grant, Knight, only surviving justice of the Supreme Court of Judicature at Bombay. It stated that by letters patent of the 8th of December*, in the fourth year of the present reign, his Majesty was pleased to grant, direct, ordain and appoint, that there should be within the settlement of Bombay a Court of Record, which should be called the Supreme Court of Judicature at Bombay; and did thereby create, direct and constitute the said Supreme Court of Judicature at Bombay to be a Court of Record, and that the same should consist of, and be holden by and before, one principal Judge, who should be and be called the Chief Justice of the Supreme Court of Judicature at Bombay, and two other judges, who should be and be called the puisne Justices of the Supreme Court of Judicature at Bombay. And that the said Chief Justice and the said puisne Justices should severally and respectively be, and they were all and every of them thereby appointed to be, Justices, and conservators of the peace, and coroners, within and throughout the settlement of Bombay, and the town and island of Bombay, and the limits thereof, and the factories subordinate thereto, and all the territories [* 1823. The text of the charter is given in Morley’s Dig. Vol. II., P. 638. The constitution and powers of the High Court of Bombay are now defined by letters patent of Dec. 28, 1865 (State. R. and O. Rev. Vol. IV., P, 108), issued in pursuance of the Indian High Courts Act, 1861 (21 and 25 Viet. 104)]

which then where, or thereafter might be, subject to or dependent upon the Government of Bombay aforesaid, and to have such jurisdiction and authority as his Majesty’s justices of his Majesty’s Court of King’s Bench had and might lawfully exercise within that part of Great Britain called England, as far as circumstances would admit.

And that the said Supreme Court of Judicature at Bombay should have and use, as occasion might require, a seal bearing a device or impression of his Majesty’s royal arms; and that all writes, summonses, precepts, rules, orders, and other mandatory process to be used, issued or awarded by the said Supreme Court of Judicature at Bombay, should run and be in the name and style of his Majesty, and be sealed with the seal of the said Supreme Court.

And that the King by the said letters patent constituted and appointed Sir Edward West, Knight, then recorder of Bombay, to be the first Chief Justice, and Sir Ralph Rice, Knight, then recorder of Prince of Wales’s Island, and Sir Charles Harcourt Chambers, Knight, to be the first puisne Justices of the said Supreme Court of Judicature at Bombay. And the King did further direct, ordain and appoint a certain jurisdiction to apperatin to the said Supreme Court of Judicature, for the hearing and determining of suits and actions arising in the territories subject to or depending upon the said Government, subject to certain provisos, exemptions, and declarations in the said letters patent mentioned, and did appoint a certain form of proceeding for the commencing, prosecuting, hearing and determining such civil suits and actions, and for the awarding and issuing of execution on the judgements pronounced therein.

And that the King was also pleased to grant, ordain and appoint, that the said Supreme Court should be a court of equity, and have equitable jurisdiction over the persons in the said letters patent described, and should be a court of oyer and terminer, and gaol delivery in and for the town and island of Bombay, and the limits thereof, and the factories subordinate thereto, and also a court of ecclesiastical jurisdiction within and throughout the town and island of Bombay and the limits thereof; and further, that the said Supreme Court should be a Court of Admiralty in and for the said

town and island of Bombay and the limits thereof, and the factories subordinate thereto, and all the territories which then were or thereafter might be, subject to or dependent upon the said Government.

And that the said Sir R. Rice, Knight, resigned the off ice of senior puisne Justice of the said Supreme Court of Judicature at Bombay, in November 1827, when the said Sir C. H. Chambers became senior puisne Justice thereof; and the said Sir R. Rice having resigned his office, the petitioner was by letters patent of the 30th of August 1827, appointed one of the puisne Justices of the said Supreme Court in his room; and that he took his seat as such at Bombay, on the 9th day of February 1828.

And that the said Chief Justice Sir Edward West departed his life on the 18th of August 1828; and that on the 3rd day of October in that year a letter was addressed : “ To Sir C. H. Chambers, and the petitioner, as puisne Justices of the Supreme Court of Judicature, dated Bombay Castle, 3rd October 1828, and signed, by John Malcolm, the Governor; T. Bradford, LieutenantGeneral, Commander of the Forces; J. J. Sparrow, and John Romer, the Second and Third Members of the Council.”

Which letter was of the following tenor :

Honourable Sirs :

“We are quite aware that we transgress upon ordinary forms in addressing this letter to you; but the circumstances under which we are placed will, we trust, justify this departure from usage, and our knowledge of your private and public characters leads us to hope, that what we state will be received in that spirit, in which it is written; and that, notwithstanding your strict obligations to fulfil every part of your high and sacred duty as British Judges, you will, on this extraordinary occasion, deem yourselves at liberty to consider as much the objects, as the rules of the Court over which you preside; and viewing the intention of the Legislature in its institution, as directed to the aid and support of the Government instructed with the administration of this Presidency, you will, for a short period, be induced by our representations to abstain from

any acts (however legal you may deem them) which, under the measures, we have felt ourselves compelled to take and which we deem essential to the interests committed to our charge, must have the effect of producing open collision between our authority and yours, and by doing so, not only diminish that respect in the native population of this country which it is so essential to both to maintain, but seriously to weaken, by a supposed division in our internal rule, those impressions on the minds of our native subjects, the existence of which is indispensable to the peace, prosperity and permanence of the Indian empire. This conclusion refers to a variety of circumstances which we are equally forbid from explaining as you are from attending to such explanation; but we deem it necessary to state our conviction of the truth of what we have asserted, expecting that it may have some weight with you as connected with the preservation of that strength in the Government, which in all our territories, and particularly those we have so recently acquired, is the chief, if not the only power we posses for maintaining that general peace, on the continuance of which the means of good rule, and of administering law under any form must always depend. “2. In consequence of recent proceedings in the Supreme Court, in the cases of Moro Ragonath [1 Knapp, 8] and Bappoo Gunness [1 Knapp, 11], we have felt compelled, for reasons which we have fully stated to our superiors, to direct that no further legal proceedings be admitted in the case of Moro Ragonath; and that no returns be made to any writs of habeas corpus of a similar nature to those recently issued and directed to any officers of the provincial courts, or to any of our native subjects not residing in the island of Bombay. “3. We are quite sensible of the deep responsibility we incur by these measures, but must look for our justification in the necessity of our situation. The grounds upon which we act have exclusive reference to considerations of civil Government and of State policy; but as our resolution cannot be altered until we receive the commands of those high authorities to which we are subject, we inform you of them; and we do most anxiously hope, that the considerations we have before stated may lend you to limit

yourselves to those protests and appeals against our conduct in the cases specified, that you may deem it your duty to make, as any other conduct must, for reasons already stated, prove deeply injurious to the public interests, and can, under the resolution taken and avowed by Government, produce no result favourable either to the immediate or future establishment of the extended jurisdiction you have claimed. A very short period will elapse before an answer is received to the full and urgent reference we have made upon this subject; and we must again express our hope, that even the obligations under which we are sensible to act, are not so imperative as to impel you to proceedings which the Government has thus explicitly stated its resolution to oppose. “We have the honour to be, etc. etc.”

The petition then stated, that on Monday the 6th October instant, the Supreme Court being assembled for the despatch of its judicial business, Sir C. H. Chambers caused this letter to be read to the court by the clerk of the Crown; after which the petitioner concurring with Sir C. H. Chambers in opinion regarding both the form and the substance of the communication, the court directed that the clerk of the Crown should inform the Chief Secretary to the Government of the Presidency, by letter, that the said letter had been received, and that the Judges could take no notice thereof.

That it was the intention of the said Sir C. H. Chambers and the petitioner to have laid before his Majesty, in an humble petition, the circumstances which were therein above set forth, and most dutifully and submissively have to be sought his Majesty’s royal protection against what they agreed in considering a most unconstitutional and criminal attempt, on the part of those armed with the whole power, civil and military, of the Presidency, to approach the Supreme Court of Judicature within the same, not by their humble petition, or by motion, by themselves or their counsel, in open court, the only way in which the law, for the wisest purposes, permitted his Majesty’s Judges to be addressed, but by means of such covert and private communication, as was strictly forbiden by the forms reared by the wisdom of ages, for the intrenching their persons against the danger and even the pollution of undue solicitation or menace, and this for the declared purpose of inducing the Judges, notwithstanding their most sacred

obligations to God, to the King, and to themselves, to refuse to administer justice according to what they should deem to be law, in compliance with such notions as those who had thus approached them might from time to time entertain of what they should call State policy.

That, while a petition to the above effect was preparing to be transmitted to England, Sir Charles Harcourt Chambers, then acting as Chief Justice of the said Supreme Court, suddenly died on the 13th of October 1828.

The petition then proceeded at considerable length to explain the motives that influenced the petitioner and his colleague during these proceedings to impugn the conduct of the Governor and Council, and to show the benefit of the Supreme Court having the power to issue the writ of habeas corpus in the manner they claimed. It ultimately prayed, that it might therefore please His Majesty to take the premises into his Royal and most gracious consideration, and to give such commands concerning the same as to His Majesty’s Royal wisdom should seem meet, for the due vindication and protection of the dignity and lawful authority of His Majesty’s Supreme Court of Judicature at Bombay.

The case of Moro Ragonath [1 Knapp, 5] which is allued to in the petition may be thus briefly stated; on the 25th of August 1828, writ of habeas corpus ad subjiciendum, directed to Pandoorung Ramchander for the production of the body of Moro Ragonath, his ward, was moved for before Mr. Justice Grant, the petitioner, at his chambers, on the affidavit of Dinkar Gopal Dew, which stated that Moro Ragonath had been confined for nearly a year, and was still kept in confinement by Pandoorung Ramchander against his will, and under circumstances attended with great hardship and cruelty. This motion was opposed by the Advocate General, on the ground that Pandoorung Ramchander and Moro Ragonath were natives, residing at Poona, and not amenable to the jurisdiction of the Supreme Court. The granting of the writ was postponed for various reasons until the 30th of August, during which time additional affidavits were put in, and in these it was stated that Moro Ragonath having made his escape from Pandoorung Ramchander on the 12th of July, was retaken and sent back again to his custody by persons acting under the order and by the directions of John

Andrew Dunlop, esq.,a British-born subject, and a Provincial Magistrate at Poona. After considerable discussion, the writ was ordered to issue, and was made returnable to the Court on the 15th of September then next, it was translated by order of the Court into the Mahratta language, and duly served on Pandoorung Ramchander. A return was made and filed to this writ in these terms :– “I, Pandoorung Ramchander Dumdurre, am the relation and friend of the Peishwah. I never in my life have been the servant of the English Government, or of the English. At the time the Company’s Government took this country, they gave me word I should live without fear or molestation. Depending upon that, I remained in Poona; and as for my grandson, Moro Ragonath, I am his grandfather; he was placed under my care, that I might take care of him according to the usual custom. He, the said boy, is fourteen years old; for that reason, according to the Shaster of the Hindoos, he is without knowledge; he is bound to behave agreeably to the orders of the person under whose charge he lives; and further, it is necessary to take care of the property and wealth of the boy; more than this, there is nothing, and there is nothing more done (by me to him,) than by those to whose care a boy is delivered, or the usual orders of seniority in a Hindu’s family. Should I by any chance do more or less, the same being made known to the Adawlut at Poona, it would be immediately stopped. After Moro Ragonath’s grandmother died, he was delivered into my charge, according to the rule, and I agreed to undertake that charge, in order that my grandson’s wealth might not be ruined. Without the leave of those by whose authority I took the charge upon my head, I cannot relinquish it. Dated 10th of September 1828, 1st of Bhadrapad Sood Shalabar 1750, the name of the year being Surodharee.”

This return was objected to on two grounds; firstly, that there was no return, “paratum habeo corpus ;” secondly, that no reason was stated to excuse the disobedience, but that the writ ought not to have issued, which was a reason the Court ought not to receive; and an attachment against Pandoorung Ramchander was moved for. The Judges took time to deliberate on the question, and on the 29th of September they delivered their judgement, that a writ of alias habeas corpus should issue, returnable on the 10th of October then next.

The case of Bappoo Gunness [1 Knapp 6] came before the Supreme Court on an application for a writ of habeas corpus ad subjiciendum, to the head gaoler of the gaol at Tannah, directing him to produce the body of Bappoo Gunness, then a prisoner in his custody. The writ was granted on the affidavit of one Babool Ranjee, stating that he had applied to the gaoler for a copy of the warrant under which Bappoo Gunness was confined, and that it had been refused to him. The writ issued on the 10th, and was made returnable on the 19th of September 1828. A return to it was made by the nazir of the court of Adawlut of the northern Konkan, and the gaoler to whom the writ was directed in these terms:– “That before the coming in of the writ, Bappoo Gunness was taken and detained in our custody by virtue of a certain order in writing of the Adawlut Court of the zillah of the northern Konkan, in the Mahratta language, and in the following form:” which was set out, and stated in effect that Bappoo Gunness having been found guilty of embezzlement, was sentenced to two years imprisonment, and a fine of 350 rupees, or in default of payment of that sum to a year’s additional imprisonment. The body of the prisoner not having been produced on the 19th, the Judges would not suffer the return to be read, and directed an attachment to issue against the gaoler. On the 26th the attachment was set aside on payment of the costs, at the instance of the Advocate-General, and Bappoo Gunness having been brought into Court, the return was read, and held insufficient, because the authority of the Adawlut Court was not stated in it; four days time was allowed to amend it, the prisoner being in the mean while committed to the gaol at Bombay. The return was not amended within that time, the Advocate-General stating to the Court that the reason why it had not been amended, was because Government would not suffer the authority of the Provincial Courts to be questioned; and Bappoo Gunness was discharged from custody. Denman, (Common Serjeant,) and Alderson, for the Petitioner,–It is perfectly clear that the Supreme Court of Judicature possesses the power of issuing a writ of habeas corpus directed to all the King’s subjects, of whatever description, resident within the territories of Bombay, in order to set free the body of any of the King’s subjects detained by them.

The Supreme Court of Bombay derives its several powers from the charter by which it was constituted, in pursuance of the Act of the fourth of the present King [Dec. 8, 1823. See Morley’s Dig. Vol. II. p. 638]. The original necessity of granting those powers to the Courts of Law in our East Indian possessions arose out of the complaints of oppression, and the disputes of persons in authority there, which at different times during the last reign were brought before the Company and Parliament in this country.

One of the resolutions adopted on this important subject at a meeting of the Court of Proprietors, on the 10th of May 1773, was, “that an application should be made for a new charter of justice, to enable the Company to add to each of the Mayors Courts at the three Presidencies, and to the Courts of the Governors and Councils as Courts of Oyer and Terminer, a barrister to act as recorder, to extend the powers of the Mayors Courts.” The additional words of the resolutions are most remarkable on the present occasion : “and particularly to introduce the privilege of the habeas corpus into India.” It is remarkable, too, that in a petition presented to the House of Lords in the same year, the East India Company stated, “that the most effectual provision of all others to prevent oppression which was recommended by the Company viz. that of the habeas corpus, whereby men might know of what crime they were accused, and by whom imprisoned, was omitted.” The Supreme Court of Judicature at Calcutta was opened on the 22nd of October 1774, from which period, for a long course of years, writs of habeas corpus were regularly issued; most of them apparently to native subjects, and not to those who by way of distinction are called British subjects residing in those territories. On the 16th of January in the year following a motion was made for a habeas corpus to the keeper of a place called the prison of the Dewanee Cutcherree, to bring up a person confined there, and the writ was ordered to issue. It should be observed, that by the 13th Geo. III. c. 63 [The Regulating Act, 1773], the King’s Court had no more jurisdiction in Calcutta over natives or others, except as a Court of Oyer and Terminer and Gaol Delivery, than in any other part of the dominions of the Crown of England within the Presidency, and that the Zemindary Courts of the Company continued to exercise a jurisdiction over natives in Calcutta, just as the

Zemindary Courts do at the present time. Those Courts are exclusive, as to the complaints, suits and actions against natives not in the employment or service of the Company, or of a British subject, and not brought before the Court of Oyer and Terminer and Gaol Delivery. On the 17th of January a return was made to a habeas corpus which had been granted to a person of the name of Golum Hider, to produce Sum ju, a female infant of eleven years of age, stating that the child was voluntarily under his care, and not underrestraint. On the 19th of January of the same year a writ was issued to Jona Mullick, keeper of the prison of the Dewanee Adawlut in Calcutta, to bring up the body of Banchuram Roy. That writ was objected to by counsel on Saturday the 21st of January, inasmuch as it issued on the statute of Cha. II., and was not marked per statum. It was answered by the Chief Justice that the writ might be considered as at common law. A motion then was made for quashing the writ, because the common law of England did not extend to India, or at least to no other than British subject: but this motion was rejected by the court; for on January the 31st a return was made to the writ, and the doctrine was by consequence denied. But when, on the 2nd of March in the same year, the return was read again, stating the imprisonment to be in a civil suit for debt, by order of the Court of Dewanee Adawlut, the Supreme Court at Calcutta proceeded to inquire whether that court, which undoubtedly possessed a competent jurisdiction in many cases, possessed in it that which was then under discusson. The plaintiff was a British subject, and the defendant his gomastah or steward, and therefore in the employment of a British subject; both parties were amenable to the jurisdiction of the Supreme Court, and neither of them within that of the Dewanee Adawlut. The keeper of the prison being in court to make his return, the prisoner was discharged. The Supreme Court thus exercised its authority in determining that the return did not bring the prisoner within the jurisdiction of the inferior court. Again, on the 28th of March 1775, a return was made by Jona Mullick, keeper of the gaol of Fousdary Adawlut, to habeas corpus, to bring up the body of one Seremani there confined. On the 23rd of December in the same year a writ of habeas corpus, directed to Warren Hastings, esquire, the Governor-General, to bring up the body of Joseph Pavessi, was returned in court, the return being

made by the Governor-General himself, without the slightest intimation of objection, and the said Pavessi was discharged, the Governor-General having declined to state as true, in an amended return, a necessary fact which he had only on report. Pavessi had been taken up in order to be sent out of India contrary to law, he being not a British subject.* It appears, therefore, that at that early period the reform of the Indian Governments, and the superintendence of the English law over the settlement, were considered synonymous; and one great object contemplated by the Company itself, was the introduction of the writ of habeas corpus, authorizing any man deprived of his personal freedom to compel the party who imprisoned him to show that he did so by authority of law.

At Calcutta, various instances of the same kind might be cited, and others have occured at Madras. The importance of the writ of habeas corpus has been strongly and justly felt. Whatever Act was passed, and whatever charter was granted, subject to whatever limitation of powers, there was no exception to that writ, and no limitation of its sphere in any of those statutes or charters.

But the writ of habeas corpus was expressly given to the Supreme Court of Calcutta by the letters-patent of the 13th Geo. III. **,they conferred upon that court “such jurisdiction and authority as our Justices of the Court of King’s Bench have and may lawfully exercise within that part of Great Britain called England, as far as circumstances will admit.” The writs of habeas corpus issued under that power do not appear to have been questioned in any manner which could raise a doubt as to their authority. The erection of the Supreme Court of Bombay has reference to the powers given to the Supreme Court of Calcutta. The 4th Geo. IV.(c. 71), indeed gives His Majesty the power by

*This and the preceding cases appear to have been quoted from a pamphlet published in October 1828, at Bombay, and entitled “Proceedings of the Governor and Council at Bombay towards His Majesty’s Supreme Court of Judicature.” They are there stated to have been extracted from MS., notes made by one of the Judges appointed at the first establishment of the Supreme Court at Calcutta.

**[ The text of the charter is given in Morley’s Dig. Vol. II., p. 549. The constitution and powers of the High Court of Calcutta are now defined by letters patent of Dec. 28,1865 (Stat. R. and O. Rev. Vol. (iv,) p. 82), issued in pursuance of the Indian High Courts Act, 1861 (24 and 25 Viet. C. 104) ]

charter or letters patent, “to erect and establish a Supreme Court of Judicature at Bombay, with full power to exercise such civil, criminal, admiralty, and ecclesiastical jurisdiction, both as to natives and British subjects, and to be invested with such powers and authorities, privileges and immunities, for the better administration of the same, and subject to the same limitations, restrictions, and control, in the said town and island of Bombay and the limits thereof, and the territories subordinate thereto, and within the territories which then were or thereafter might be subject to or dependent upon the Government of Bombay, as the Supreme Court of Judicature at Fort Williams in Bengal, by virtue of any law then in force and unrepealed, did consist of, was invested with, or subject to, within the said Fort Williams, or the places subject to or dependent upon the Government thereof; provided always, that the Governor and Council at Bombay, and the Governor-General at Fort Williams aforesaid, should enjoy the same exemption, and no other, from the authority of the Supreme Court of Judicature to be there erected, as were enjoyed by the said Governor-General and Council at Fort Williams aforesaid for the time being, from the jurisdiction of the Supreme Court of Judicature there.” That is the only proviso for the exemption of the Governor and Council of Bombay; but the Governor-General and Council of Fort Williams are not only exempted from the jurisdiction of the Court, *but have by the 21st Geo. III, the power of exempting others also from its jurisdiction by their order in writing; which approaches very nearly to the latter in question. In pursuance of this Act of 4th Geo. IV. [c. 71] His Majesty erected the Supreme Court of Judicature at Bombay, by his Letters Patent [Morley’s Dig. Vol. II. p. 638]. By these letters he gave to it various powers and authorities which are exercised by his ordinary

*21st Geo. 3, c. 70,s 2. “If any person or persons be impleaded in any action or process, civil or criminal, in the said Supreme Court, for any act or acts done by order of the said Governor-General and Council, in writing, he or they may plead the general issue, and give such order in evidence; which said order, with proof that the act or acts done have or has been done according to the purport of the same, shall amount to a sufficient justification of the said acts, and the defendant shall be fully justified, acquitted and discharged from all and every suit, action and process whatsoever, civil or criminal in the said Court”.

By section the third of the same Act it is provided, that with respect to such order of the Governor-General and Council as shall extend to any British subject or subjects, the court shall have and retain as full and competent jurisdiction as if the Act had never been made.

writs in the Kingdom of England; and he thought proper to limit the extent of its civil jurisdiction, of its ecclesiastical jurisdiction, and of its jurisdiction as a Court of Oyer and Terminer; but these are the only respects in which he limited, as to the extent of territory, those powers which the court was to possess. The clause limiting the civil jurisdiction is in these words [clause 28]: “And we do further direct, ordain and appoint, that the jurisdiction, powers, and authorities of the said Supreme Court of Judicature at Bombay shall extend to all such persons as have been heretofore described and distinguished in our charters of justice for Bombay by the appellation of British subjects, who shall reside within any of the factories subject to or dependant upon the Government of Bombay.” It thus states, that all the jurisdiction, powers, and authorities of the Supreme Court of Bombay are to extend to those persons; but it cannot mean that the general jurisdiction of the court extends to no others. But if the whole of the article be read thus, “That the jurisdiction, power, and authority of the Supreme Court of Bombay shall extend to (and that the said court shall be competent and effectual, and shall have full power and authority to hear and determine all suits and actions whatsoever against) any of our said subjects distinguished,” etc.; it would then apply only to the civil jurisdiction alone, as to suits and controversies, and have no reference to any limitation on the other jurisdiction of the court. In like manner the Court of Equity is to extend over all the same persons as those who have civil suits. So again, in speaking of the criminal jurisdiction, the charter [clause 44] authorizes and empowers the said Supreme Court to “inquire, hear, and determine of all treasons, murders, felonies, misdemeanors, etc. committed by any of the King’s subjects in any of the territories subject to or dependent upon the Government of Bombay.” Now, if all the powers of the court had been previously limited by the clause of the charter granting the civil jurisdiction to subjects residing within the factories, this clause would be inconsistent with it. It, therefore, shows that limitation not to extend to all its powers and authorities, but to its civil jurisdiction alone. The result is then, that first, all the general powers of the Court of King’s Bench throughout a district including Poona and Tannah, the places in question, are given to the Supreme Court; then a civil authority is given, limited to a smaller district; and then other jurisdiction are given it, limited in the same manner.

The language of this charter thus becomes as intelligible as the principle on which it rests. The native subject shall not have his contract interpreted by a foreign law; but it equally imports him, whether contending with another native, or with a British-born subject, to be secured from that invasion of individual liberty, without which no justice of any kind can be obtained. The distinction is manifest between the ordinary objects of civil and criminal justice, and the high prerogatives vested in the Crown for the immediate protection of all its subjects. The powers which belong to His Majesty by virtue of his royal station, to be exercised by him through his Judges in the Court of King’s Bench, exist in conquered countries as well as those to which he succeeded when he came to the Crown. They cannot be taken from him, but by his own concurrence with the two other branches of the Legislature, in words which can leave no doubt of the intention to make so great a sacrifies. In these letters patent there is also this proviso [clause 45]: “That the Supreme Court shall not be competent to try any indictment or information against the Governor-General and others who are specified, except in particular cases.” Now the power of granting a criminal information is not involved in that of trying actions and indictments; yet the proviso clearly implies, that in all cases excluded from it under the circumstances there directed, the Supreme Court might hear a motion for a criminal information.

It was only in the year 1827 (R. V. Wright, 1827, Morley’s Dig. Vol. I. p. 120) that Sir Charles Grey had occasion to give a judgement, which proves the opinion of that learned Chief Justice on the subject. A motion was made for a criminal information against a variety of persons who had obstructed a Sheriff ’s officer in executing the process of the court. Some of the parties complained of were native subjects not open to the ordinary jurisdiction; no indictment could have been preferred against them. But the others were British subjects, or those employed by British subjects, who clearly would not fall within the exception. Sir Charles Grey expressly recognizes the distinction which we have drawn. “A question had been made, whether the Court possessed authority to grant a criminal information against Mendy Ally Khan, as it had been said that he was not subject to this jurisdiction, as he was not an inhabitant. In his own opinion, however (the opinion of the Chief Justice of Bengal), the question

of the jurisdiction of the court should not be entertained. There were two distinct powers of jurisdiction vested in the court, that of Oyer and Terminer and of the Court of King’s Bench. The former was limited; but the latter was not, but extended throughout all the Provinces under this Government. It was his opinion, that the Supreme Court possessed authority to grant information anywhere in the Company’s territories, for any act for which the Court of King’s Bench could issue one in England. The Court had a complete power of punishing any native, foreigner, or other person whosoever, contempt or violent obstruction of the process of the court, in the same way as the Court of King’s Bench. It would be perfectly anomalous to say that it did not possess the power of punishing that by the more deliberate mode of information, which could be effected by the mere summary process of attachment. He could not confine it to that question, seeing that they possessed the jurisdiction of the Court of King’s Bench. He did not know that the Court might enter into a criminal information against any person whatever. He should state, however, that such an authority should be executed sparingly, and with caution. This would set the question of the grounds of the criminal information at rest, as their jurisdiction over Mendy Ally Khan did not depend on his being an inhabitant of Calcutta.” He then proceeds to say, “that as some of those persons were not subject to indictment, and those subject to it were the least guilty parties, he would not grant a criminal information, but thought it better to leave it altogether to an indictment.” In this passage the power to try indictments is clearly separated, both from the right to issue attachment for contempt, and from that of granting criminal informations. Indictment can be tried by the Supreme Court only in its character of a Court of Oyer and Terminer, and its power to try them is bounded by the terms of the exception; but the power of punishing contempt is inherent in all courts. The power of proceeding by criminal information is inherent in the Court of King’s Bench and is transferred, without limitation as to persons, by the terms of the charter to the Supreme Court. Numerous cases might be drawn from the books, if authority were wanted, to inform your Lordships that, that power does exist

in the manner described. In Bourn’s case, Cro. James, p. 543, “Montague, Chief Justice, said that the privilege of the Cinque Ports, that the King’s writ runs not there, is to be intended between party and party, but no such privilege can be against the King : and this writ (a writ of habeas corpus) is a prerogative writ which concerns the King’s justice to be administered to his subject; for the King ought to have an account why any of his subjects are imprisoned; and it is agreeable to all persons and places, and no answer can satisfy it but to return the clause with paratum habeo corpus, etc.; and this writ hath been awarded out of this court to Calais, and all other places within the Kingdom, and to dispute it is not to dispute the jurisdiction, but the power of the King and His Court, which is not to be disputed; and of this opinion were all the other justices;” This doctrine of Lord Chief Justice Montague is fortified by precedents of the King’s writ having been awarded to Calais and other places within the dominion of the Crown of England, and has been fully recognized by the Courts in a variety of cases between that time and this. Lord Mansfield, in the case of Cowle, 2 Burrow’s Reports, p. 834, laid it down that the King’s writ must be said to run in all places throughout his dominions, but that this was not the case with all writs; and therefore, when he came to lay down the rule in that case, his Lordship directed it to be entered that writs of venire facias do not run in the town of Berwick; but he decided also, that the high prerogative writs arising out of a different source have a much more extensive operation. Now these high prerogative arise out of the natural allegiance the subject owes to the King, and the protection which that allegiance requires of the King for the subject? This is the principle which is stated in Calvin’s case in 7th Report (1), viz., that allegiance is the duty of the subject, and that protection is the duty of the King. Whenever therefore the subject owes allegiance, the King owes protection. Now can it be contended that in the case of any conquered country annexed to his Majesty’s dominions the inhabitants of that country do not owe him allegiance? If they do, it must follow that the King must owe them protection, and that protection is to be, as in the present instance, given, by his issuing by virtue of his prerogative his writ of habeas corpus, that he may know whether they are lawfully imprisoned or not; or his writ of certiorari, that he may know whether any

proceedings which have been commenced against them are conformable to the law; or his writ of prohibition, that he may keep the respective courts throughout his dominions in the due exercise of their duties; or his writs of mandamus, that he may oblige persons to do such acts as they are bound to perform. Therefore, when the King grants to a particular court, by virtue of the authority of an Act of Parliament, these powers arising out of his prerogative, the court has them in their full extent, unless he limits them, either as to extent of territory, or in some other way. Here the King has granted the same powers as the King’s Bench exercises in England, to be exercised by the Supreme Court of Bombay throughout a territory including the places to which these writs have been sent. It may be true, that the natives of India are not within the jurisdiction of the Supreme Court for the purpose of suing one another for private matters of dispute; that certain writs known to our law would not run as between party and party, and yet that the prerogative writs of the Crown being restrained by no clause in the charter, nor taken away by the direct words of an Act of Parliament, the sole power sufficient for that purpose must remain in the Crown, and exercised by that court to which the constitution has assigned so high and inestimable an authority.

In the early part of his able argument in the Court of Bombay, the Advocate-General of Bombay referred to the celebrated Patna case, in the year 1777, before Sir Elijah Impey, and from his expressions, endeavoured to infer that the Court had no jurisdiction over the natives in a case like the present (Patna, Appendix, No. 17, Judgement of Sir, E. Impey, in the case of Nadarah Begum v. Behader Beg). “In this country, the gross body of the people are not, and only certain persons answering particular descriptions are, objects of the King’s laws or of the jurisdiction of this court. As therefore there are other laws and other courts, such as they are, to whom the bulk of the natives are amenable, and we were not anxious to extend our jurisdiction, we have suffered these pleas to the jurisdiction to be pleaded as freely as any other plea,” etc. On this doctrine great stress was laid by Mr. Dewar: but Sir Elijah Impey’s authority was not wanted in support of the fact, that natives

are exempt from the jurisdiction of the Supreme Court. The question still comes round. What jurisdiction is here contemplated? Is it that jurisdiction to issue high prerogative writs, which cannot be abolished without positive enactment; or is it that jurisdiction to decide those controversies between party and party, which the law designates by the name of suits and actions ? Sir Elijah must have referred to the latter in the case where he permitted please to the jurisdiction to be freely pleaded.

It was then argued, that because this Act of the 21st Geo. 3, cap. 70, enacted (section 11) that “Governor-General and Council should cause the name, description and place of usual abode and all natives employed in the service of the East India Company, in the offices therein mentioned, to be entered in a book or books to be alphabetically disposed,” that those precautions would hardly have been taken to ascertain what natives should be subject to the jurisdiction, if all natives without exception were. But in a limited sense of the word, we have no objection to admit that certain classes alone are within the jurisdiction. The registry of all the persons described is equally desirable for this purpose, whether our argument in favour of its embracing all in its more liberal sense, be well or ill founded. Having spoken of the high prerogative writs in general, we proceed to speak of the writ of habeas corpus in particular. In the year 1818 the doctrines held concerning that writ were examined by Lord Eldon, in Crowley’s case, 2nd Swanston, p. 1. A person had been committed by commissioners of Bankrupt for not answering satisfactorily, a motion was made for a writ of habeas corpus in vacation, and the question whether he possessed such a power was discussed by him with great care. He found a case in point decided by Lord Chancellor Nottingham (Jenkes’s case, 1676, 6 How St. Tr. 1189); but he resolutely overruled that decision when he found it inconsistent with the principles of the law of England. He treated it there as known law, that no man’s liberty should be invaded without the supreme legal authority having power to pronounce immediately on the reason of that restraint; and that this prerogative of the King might be called into action at any time, and could not be affected by general words in a statute.

The case of Moro Ragonath (1 Knapp, 8) gave rise to the extraordinary interference of the Governor and Council of

Bombay. In that case, although a writ of habeas corpus issued, the body was not brought into court, nor any return made to the writ, though a strange, anomalous, questionable document, came from the person to whom it had been sent. The fact stated in that document, if true, might have been returned to the court, and the cause, if sufficient, would have been admitted by the court. If appeared too on the proceedings that the person to whom the writ was directed had obtained the authority of Mr. Dunlop, a Justice of Peace of that part of the world, to keep Moro Ragonath in custody, and we apprehend may well be considered as an agent employed by Mr. Dunlop, and thus answering the narrowest description of those within the jurisdiction.

It is a much less daring presumption than the fiction in the law, that any person brought before the Court of Common Pleas by habeas corpus is a privileged person; and therefore Lord Eldon and Mr. Justice Blackstone commend the Common Pleas for presuming the party arrested to have their privilege when they knew he had not, because the law cannot endure that a man under unjust imprisonment shall return to it. It can hardly ever indeed happen that a person in the Indian territory should be imprisoned without the intervention of English subjects properly so called.

The gaoler, in almost every case, is a native; all the officers of the native courts are natives; but the authority of the native courts is almost always under the control of English subjects. Servants of the East India Company preside over their jurisdictions. It would require a great deal of ingenuity, and a most remarkable concurrence of circumstances to find any person imprisoning another, and not acting under the employment of British subjects. The letter-missive to the Supreme Court (1 Knapp, 4) assumes to repeal the letters patent granted by the King in respect of all except those residing within the island of Bombay, or such as have been employed by the British authorities; it claims to refuse the execution of writs directed to any officer of the Provincial Courts; and in conformity with this assumption of power by the government were its proceedings in the case of Bappoo Gunness (1 Knapp, 6).

The Counsel then proceeding to comment on the terms of the letter of the Governor and Council to the Judges.

The Lord Chancellor (Lord Lyndhurst) observed, “What we have met here for is to ascertain the jurisdiction of the Supreme Court of Bombay. The object is discussion of what their power is.”

The prerogative of issuing writs of habeas corpus is inherent in the Crown, and can only be abolished by express words and none such are found in the charter. Such writs are issuable by the law of England from the Court of King’s Bench, and they run into any dominions under the sway of the English Crown. Such writs have frequently issued from the English Supreme Courts at the several Indian Presidencies, which have all the powers of the English King’s Bench vested in them by Act of Parliament. Certain restrictions are imposed on the jurisdiction of the Supreme Court with regard to the persons subject to it; but those must be applied, by a reasonable construction, to its ordinary operations as a Court of Oyer and Terminer and of Gaol Delivery, not extended to the power of issuing those high prerogative writs which are indispensable for the safety of all the liege subjects of the Crown when urgent necessity demands immediate and decisive inter-position. But even if the subjects purely native could not be questioned for the imprisonment of a fellow subject, still the agents of those courts which act under British Judges are manifestly excluded from the pretended exemption.

The celebrated statute of habeas corpus (31 Car. II. c.2) is intituled, “An Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas;” and in The King v. Cowle (R. v. Cowle, 1759, 2nd Burr. 835), it is stated, that the power of the King’s Bench in England extends to the granting writs of this description directed to persons in the colonies, though the necessity for issuing them had not then occured. That the court has such a power, appears from the authority of Lord Mansfield [King v. Cowle, 2nd Burrows (835)], and from the fact that writs of this description have issued into all the dominions of the Crown of England. They may, and do, extend, therefore, beyond the limits of the ordinary civil jurisdiction of the court here; and so in India the Supreme Court may have this jurisdiction throughout all the conquered territories, though its civil jurisdiction be limited to Bombay alone. The duty of the Court of King’s Bench in England,