At a quarter after two o'clock in the morning, the queftion on the amendment was put, and the Houfe divided; for the amendment 214, against it 149. The main queftion was agreed to. Mr. Fox moved to infert the following after the words heard in his defence: "That the Judge Advocate having by the direction of the faid court, declared that it did not occur to the recollection of any of the members, that it had been the ufage of courts martial to admit any thing on the part of the accuser, after declaring that he had gone through all the witneffes he fhould produce in fupport of the charge, and that he had agreed that the papers offered by the accufer, could not be admitted; and the faid court having, in another part of the faid trial, declared, that they had continued of the fame opinion, and had agreed that the whole evidence, not only on the part of the charge, but of the defence, had been clofed, nothing farther by way of addrefs from either, could be read." This amendment was over-ruled, by the motion for the order of the day, to which the Houfe agreed, February 2. February 8. Mr. Jenkinson, Secretary at War, informed the House that there were fomne alterations made in the mutiny act, two of which being material, he thought it right to ftate what they were, as no alterations ought to be made in an act of fo much importance, without the concurrence of the Houfe. The firft alteration was the total omiffion of the word "Ireland" in the act, an omiffion, which the learned gentleman appointed to draw up and prepare the bill had judged proper, because that the Irifh legiflature had laft year introduced clauses in their mutiny act, tending to govern and regulate the management of the quartering foldiers, and other matters relative to military difcipline, when at a distance from the capital; the continuing to extend the British mutiny act to Ireland was therefore no longer neceffary. The other material alteration was, the introduction of a claufe delegating an authority to hold a general court-martial to the firft in command at any place at a diftance from the commander in chief VOL. XVIII. Kkk in Sir Philip Sir George in India. Heretofore the Secretary faid, if a court-martial was neceffary at Bombay, or at any of the company's fettlements on the coaft of Coromandel, it could not be held there, but the parties must be fent to Bengal, where the commander in chief of his Majefty's forces in India was ftationed. Gen. Smith. Sir Philip Jennings Clerke faid, he hoped, that in delegating the power talked of by the honourable gentleman, care had been taken that officers were to be tried by courts martial, compofed of officers of higher, and not of inferior rank to themfelves. Sir George Yonge faid, that what the Secretary at War had dropped concerning the omiffion of the word "Ireland," in the bill, appeared to him to be of very serious importance, and required very mature confideration before it was agreed to. If it was intended that this country fhould give up all claim to legiflation over Ireland, he thought it would be better to declare fuch an intention, and do it at once. He could never approve of the idea of giving it up, bit by bit, by incidental acts of Parliament. He therefore wifhed the Houfe would not haftily fettle the queftion, but go into it, examine it with the attention due to its importance, and make a folemn decifion upon the fubject. General Smith agreed with the Secretary at War in the propriety of delegating the power of holding courts martial in India, in the manner that he had stated, and said fuch a regulation had been long and greatly wanted in that country. The bill was read a firft time. The House next heard evidence refpecting the Coventry election. February 9. No debate. Adjourned to the 12th. February 12. Gen. Smith. General Smith. Mr. Speaker, it is not my intention to make any apology to this Houfe for calling the attention of it to the petitions now on your table. The fubject is too important to require it, but I am very free to declare, that on this occafion, no perfonal motives whatfoever influence my mind; I difclaim every idea of perfonality; I-am impelled by motives of juftice and humanity, to give fuch a reprefentation of facts, as I truft will make their impreffion upon the members of this Houfe, and from thence will appear the abfolute neceffity of coming to fome fpeedy determination relative to the very diftracted ftate of our government in Bengal and its fubordinate provinces. * See the petitions at the end of the debate. Before Before, Sir, I enter into the present state of the jurifdiction of the fupreme court of legislature, it may be neceffary to defcribe what was the ftate of jurifdiction in Bengal, before the fupreme court was established. The mayor's court of Calcutta decided all caufes of meum and tuum; it confifted of a mayor and nine aldermen, appointed by the governor and council, from the inhabitants of Calcutta; they were appointed for life, unless for mifbehaviour, &c. and then they might be removed, but any alderman fo removed had his appeal to the king in council. I believe the decifions of that court, were in general very upright. The very few appeals from it ferve to confirm me in my opinion. The chief juftice, on the opening of the fupreme court of judicature, paid many high compliments to the decifions of the mayor's court, then to be abolished. The feffions of Oyer and Terminer were held by the governor and council as the king's juftices; I be Hieve I may fafely fay, that their conduct as judges was without reproach; they decided upon all occafions to the best of their judgment, and juftice was ever tempered with mercy. In the internal provinces, courts of Adawlet and Phonfderry were established when the civil and criminal jurifdiction was exercised betwixt native and native, fubject to the controul of the provincial councils, and from whofe decifions, if any perfon thought himself injured, he might appeal to the governor and council of Fort William, who by the charter were invefted with the fupreme authority. This was the state of the refpective jurifdictions in Bengal, when the fupreme court of judicature, inftituted by virtue of an act of parliament of the 13th year of his prefent Majefty was opened in Calcutta. It is impoffible, Sir, to speak of the eftablishment of that court, and pafs over in filence the firft remarkable judgment; I mean the cafe of the Rajah Nundcomar. I do not mean to enter fully into the merits of this extraordinary cafe, I have my own decided opinion upon it; but Rajah Nundcomar was indicted for forgery, a forgery committed many years before the establishment of the fupreme court of judicature; he was found guilty, condemned and executed. Let us compare the conduct of the judges of the fupreme court with that of the governor and council fitting as juftices, in the year 1762. Radachum Metre, a Gentoo inhabitant of Calcutta, was tried for a forgery, found guilty and condemned; the Hindoo inhabitants of Calcutta prefented a ftrong petition to the Kkk 2 governor governor and council, ftating, that by their laws, forgery was not a crime to be punished with death; the terrors which every inhabitant of that country would be under, if the laws of England, which were contrary to their laws, cuftoms, and religion, fhould opperate fo as to affect their lives, and therefore most earnestly requested the governor and council to fufpend the execution of the fentence, and to recommend Radachum Metre to his Majesty's royal clemency. The governor and council wifely complied with the prayer of the petition, and thereby gave his Majesty an opportunity of exercifing the brightest attribute of his crown, by extending his royal mercy; and a pardon was granted to Kadachum Metre. Now if there ever was any one cafe more peculiarly fitting to be fubmitted to his Majefty's decifion than another, I do conceive it to be the cafe of the Rajah Nundcomar; a man who had been the prime minister of that country, a man of very high rank, with refpect to his particular caft; condemned for a crime committed fo many years before the eftablishment of the fupreme court, and upon an act, that it has been faid, does not extend to the Eaft Indies; add to this, that the principal evidence against him was a man of notorious bad character. If to all thefe circumftances, we keep in our remembrance, that it was the first remarkable fentence fince the establishment of the fupreme court of judicature; I do conceive it would have been highly juft, as well as politic, to have given his Majefty an occafion of exercifing his judg ment, and in that cafe I have not a doubt, but the Rajah Nundcomar, would have experienced the fame royal clemency as was extended to Radachurn Metre. The execution of Nundcomar will, I hope, point out the abfolute neceffity of granting an authority to the council of ftate, to refpite any fentence of death paffed by the fupreme court, until his Majefty's pleasure shall be known. Sir, the petitions on the table, complain of an extension of the jurifdiction of the fupreme court of legislature, beyond what they are impowered to exercife by the act or by the charter. I have read the charter with attention, and I have diligently perufed the records of the company. I am convinced, that it never was the intention of Parliament, when the act was paffed, to fubject the native inhabitants of Bengal, &c. to the British laws. Perufe the act, and see how very cautioufly it is worded. The fupreme court are abfolutely reftrained from exercifing jurifdiction over the natives, unlets I they they each fhall fign an agreement to submit to the jurifdic tion of the court. British fubjects and others, directly or indirectly, employed in the fervice of the company, or of any of our fubjects, are the only objects of the jurifdiction of the fupreme court. From the judges conftruction of who are employed directly or indirectly, has arifen all thefe difputes which have been carried to fuch a length, that the governor general and council, have thought it neceffary to interfere, and place a limit to the jurifdiction of the court, and then to appeal to parliament by petition for an act of indemnity. To convince this Houfe of the intolerable hardships which the inhabitants of Bengal now labour under, from the affumed jurifdiction of the court, I fhall beg leave to ftate fome very striking inftances. The firft happened in the province of Dacca. Dacca is a province remarkable for the flatness of its furface, and when the periodical rains fet in, it was not uncommon, (for the torrents which poured down with great rapidity from the mountains to the eastward) to overflow the banks, and fometimes to force a new channel for the river. It fo happened, that this circumftance occured not long fince. As foon as the rainy feafon fubfided, the Rajah through whose poffeffions the river had formerly flowed, cultivated the oldbed, and by proper means prepared it for agriculture. At the fame time, another Rajah fent his men to plough and fow part of the fame fpot. When the time of harvest came, they both affembled an armed force to collect the crop; fome people were killed on both fides and the harveft was reaped by him who firft began to cultivate. A complaint was made to the provincial council of Dacca. The caufe was in hearing. That Rajah who had been the aggreffor, finding that he could not fupport his pretenfions in the country court, applied to the fupreme court at Calcutta: and upon a fimple affidavit, warrants were granted against two of the principal officers of that Rajah who reaped the crop, to apprehend them as murderers. They were apprehended and brought to Calcutta very foon after the affizes; the counfel for thefe prifoners offered bail; no bail was accepted; they were loaded with fuch heavy irons, that the counfel reprefented there were apprehenfions of a mortification. After five months confinement, the affizes were held. The profecutors were not prepared for trial. Bail was again offered, but not admitted. After twelve months imprisonment, they were brought to trial; the counfel for the prifoners, upon the crofs examination of the very firft evidence called on the part of the profecution, clearly proved, that thefe two unhappy men were not within the ju rifdiction |