The famous case of Nuncomar or Nandakumar took place in 1775 and is not covered here. The notebooks about it have been lost or destroyed – see the explanation by Thomas Curley. Overall, the first ten years of the Supreme Court in Bengal were tumultuous, marked by disagreement, corruption and the politicization of cases. The major issue of jurisdiction had been left vague in the Regulating Act of 1773 and those issues had to be fought out. The conflict culminated in the Kashijora case where Hastings sent the Army to stop Hyde’s sheriff from serving a writ (after this case there is no writing in the notebooks for six months).
The Court’s official written jurisdiction in the Regulating Act was “all British subjects” in Bengal and anyone employed “directly or indirectly, in the Service of the said United Company.” Since the words “directly or indirectly” could be applied to nearly anyone who worked with the Company, it was inevitable the Court would clash with the Council. And because the majority of consequential disputes were between the Company and from whom it collected taxes, the conflict was written into the Regulating Act itself. If the Supreme Court attempted to fulfill its Charter, it would interfere with the Supreme Council and its mandate to maximize the revenue stream.
Hyde’s own view of jurisdiction was expansive. He believed that the Supreme Court’s jurisdiction covered all inhabitants – Indians and British alike – and that the Supreme Court had the right to summon and issue warrants and habeas corpus for everyone in Bengal. In one notebook, he wrote that all Indians were his Majesty’s subjects and therefore entitled to the same rights. Hyde based his belief on the Supreme Court’s Charter. He copied a passage from the Charter which read that the Supreme Court’s purpose was to administer “justice in the most beneficial manner, to all our loving subjects, in the said provinces, districts, or countries of Bengal, Bahar, and Orissa.” Hyde underlined the words “all our loving subjects.” Hyde believed these words gave the Court the right to protect everyone in Bengal. He acted on this belief and this set the stage for conflict. The Supreme Court, led by Hyde, tried to enact equal and blind justice, using their powers to release imprisoned debtors, reverse decisions of the corrupt provincial company courts, and protect the powerless. It was Hyde’s assertion of a wide jurisdiction that led to the climactic conflict between the Supreme Council and the Supreme Court.
In the provinces away from the seat of power in Calcutta, the provincial councils resented any interference in their affairs. Hyde, supported by Lemaistre (who died in 1777) used habeas corpus as a tool to counter the provincial councils’ oppressive practices. One of the most problematic councils was in Dacca. Two concurrent cases illustrate how Hyde and Lemaistre fought to establish the Supreme Court as the final court of appeal over the Company’s Adalats. The first Dacca case, Rex v. Mahmud Noor-al-din in the Matter of the Habeas Corpus to produce the Body of Seroop Chand (1777), began when the Dacca Council jailed Seroop Chand, a banker who acted as surety for the zamindar of Deccan Savagepore, for falling in arears. On August 20, Hyde filed a writ for the Dacca Council to explain why they had imprisoned Chand. When the Dacca Council replied that they had the right to detain people involved in tax collection until payment was received – just like the Calcutta Committee of Revenue – Hyde did not accept this as valid justification and filed habeas corpus on to let Chand post bail. Lemaistre agreed, writing that the Dacca Council had no more right to imprison Chand than if they were the “King of the Fairies,” noting also that they had also violated Chand’s rights by starving him and preventing him from practicing his religion.
As Hyde’s habeas corpus for Chand was on its way to Dacca, the second Dacca Case, Khyru Pyke v. Jagannath (1777) was proceeding. Pyke, a hircarrah (letter carrier), had filed a suit in the Dacca Faujdari Adalat that his wife had been raped. Rather than hearing the suit, the Dacca Faujdari Adalat’s Diwan, Jagannath, arrested Pyke on misdemeanor charges and imprisoned him in his own house. Pyke escaped and sued Jagannath at the Supreme Court for false imprisonment. In September, Hyde issued a warrant to arrest Jagannath for falsely imprisoning Pyke. The sheriff found Jagannath hiding at the faujdar’s house. Jagannath resisted arrest and in the ensuing fight, the sheriff’s men broke down the faujdar’s gate, nearly killed the faujdar’s father and shot his brother-in-law. Hearing of the commotion, the Dacca Council sent the militia to intervene and arrest the sheriff.
The Dacca Council summoned both sides to present their case. Jagannath denied ever seeing Hyde’s warrant, while the sheriff swore Jagannath had torn it to pieces in front of his men. The faujdar said that he did not have to obey the Supreme Court’s warrants since the Supreme Court had never told him that his Faujdari Adalat was under their supervision. In the end, the Supreme Council intervened to settle the case. Although the Supreme Council’s members privately seethed at Hyde’s interference, they decided not to escalate matters. The Supreme Council settled both Chand’s and Pyke’s cases by paying the faujdar and Jagannath restitution money and by instructing the Dacca Council and Faujdari Adalat to comply with the Supreme Court’s warrants in the future.
The Dacca cases thus established the Supreme Court’s right to issue habeas corpus over the provinces and hold the Company’s courts accountable. However, Lemaistre died shortly after the Dacca trials, leaving Hyde alone upholding his broader view of jurisdiction. He held this position against the interests of the Supreme Council and against the interests of the Company’s judicial system in the provinces. Moreover, the Court refused to recognize any distinction between the servants of the Company and those of the Nawab, the titular ruler, under whom the Company ostensibly ruled. Hyde’s arguments for a broad jurisdiction pleased no one.
In the Patna case, the Supreme Court supported a woman against the interests of her deceased husband’s nephew. In Nauderah Begum v. Bahadur Beg, Qazi Saudi, Mufti Barracktoola, and Mufti Ghulam Mackdown (1777-1779) Nauderah Begum was attempting to recover her inheritance. Her husband’s nephew, Bahadur Beg, had accused her of illegally keeping her husband’s possessions with a forged will. The Patna Council supported Beg. Their Diwani Adalat ruled on his case without any due process and ordered the Adalat’s officers – the qazi and the muftis – to seize Naderah’s property. Forced off her land, Naderah fled to a dargah (Islamic shrine) for sanctuary with the deeds that supported her position. Beg then entered a new charge in the provincial court against Naderah, for having disgraced his family by fleeing. The Patna Council sent sepoys to the dargah to compel her return.
Like Chand and others, Naderah could have appealed her case to the Supreme Council’s Sadr Diwani Adalat if it had existed anywhere other than on paper. Instead, she petitioned Hastings for help directly. After receiving no reply, she turned to the Supreme Court and filed a suit claiming Rs. 600,000 in damages. Beg’s attorney argued that he was not under the Supreme Court’s jurisdiction because he was a revenue “farmer” (contractor), not a revenue “collector” (salaried) and thus not “directly or indirectly” in the Company’s service. The Court unanimously disagreed. Impey stated the Court’s opinion that simply changing the name of the officer from a “collector” to a “farmer” still meant Beg was involved in tax collection and was “directly or indirectly” in the Company’s service and under the Court’s jurisdiction. The Court also agreed the qazi and muftis were subject to their jurisdiction since they were the Patna Council’s employees.
The Supreme Court found that the Patna Diwani Adalat had decided the case and seized the property on no evidence other than Beg’s testimony. They suspected Beg had bribed the Council, the qazi and the muftis. Impey further suspected the Patna Council had fabricated their entire proceedings, recording the events only after the Supreme Court took up Naderah’s case. The Court ruled that the Patna Diwani Adalat had violated its duties by improperly deciding the case without due process and awarded Naderah Rs. 300,000 in damages and Rs. 9,208 in costs in February 1779. This outcome was not acceptable to many Company servants nor to the Supreme Council who viewed the Court as an unwelcome intruder on their tax collection system and their provincial councils.
The Supreme Council moved to protect its provincial council and Beg. They attempted to sue Naderah for forging her husband’s will, a charge that carried the death penalty. Hyde refused to issue the necessary warrants and Impey, still in alignment with Hyde, spoke the Court’s judgment that Naderah’s will was genuine, squashing the Supreme Council’s suit. The Court had won a major victory, confronting both the Patna and Supreme Councils, thus proving that tax collectors were under their jurisdiction. They had also fulfilled their mission to protect the most marginalized in society against the Company’s predations. They had given power to a woman against a man, however, and that was unacceptable. Against his legal counsel’s objections, Hastings sent the trial to London for appeal. The appeal, along with supporting facsimile documents, was immediately printed in London as were the Dacca, Patna and later Kashijora cases, ensuring that the Supreme Council’s side of the story would be heard before any other. The appeal would be added to a growing body of print published against the Court that would later have significant effects on the Court’s authority.
The Supreme Court’s procedures were expensive and lengthy, taking at least a year to solve any issue and the Court was accumulating enemies. In January 1779, Indians rioted outside the courthouse, threatening the judges. British subjects were angry as well. Prior to 1774, Calcutta had its own Mayor’s Court, which was popular with Europeans because it was run by Company servants who supported their interests. British subjects and Europeans began to fight back against the power of the Supreme Court. The wrote a petition to Parliament called the Touchet Report. James Creasy, who had defended the judges against the January riot and was the Company’s Superintendent of Works, had been found guilty by the Court of imprisoning and beating two of his workers in 1779. Creasy did not deny his crime –he felt he had acted within his rights – but he petitioned the court for a trial by jury, which the Regulating Act specified had to be filled with “British Subjects,” meaning white men. Impey refused because Creasy’s was a civil case and the Regulating Act reserved trial by jury for criminal cases only. Creasy’s case touched a nerve in British Calcutta. When the Touchet Report was written, it was signed by 640 men who claimed they wished to protect their “birth right privileges” as British subjects. The report was delivered to Parliament who considered it when later curbing the powers of the Supreme Court.
The Regulating Act had put the Supreme Court and Supreme Council on a collision course where there could be only one victor. The Kashijora case was the culmination of the Court and Council’s disagreements. It was the first case where the Supreme Court’s claim of jurisdiction over zamindars was directly tested. Previous cases had dealt with Councils, Adalats, revenue collectors, revenue farmers, and their agents, but never directly with anyone who held the title zamindar.
Kashinath Babu v. Raja Sunder Narayan and the East India Company (1779-1780) began when Narayan, the zamindar of Kashijora in Midnapore district, did not repay his banker, Kashinath, for taxes Kashinath had paid the Company on the zamindar’s behalf. Kashinath sued for redress. Hyde ordered Narayan be brought to trial but the Company’s attorney, North Naylor, warned Narayan and advised him to go into hiding. When the sheriff returned empty handed, Hyde issued a writ to seize Narayan’s property to compel him to come to court. Tipped off again by Naylor, the Supreme Council ordered the Company army to intercept the sheriff’s men. After a brief standoff, the army seized the sheriff and his men. Force, not law, had decided the issue of jurisdiction in Bengal.
Impey joined Hyde (Chambers was absent) in the Court’s next actions. They issued writs requiring the Army commanders and Naylor to defend their actions or be declared in contempt and issued another writ asking the Supreme Council to defend their actions. The army closed its barracks, preventing the sheriff from delivering his writs and the Councilors refused to defend their actions. Only Naylor was accessible so Impey threw him in jail for contempt where he later died. The Court declared the entire Supreme Council in contempt for ignoring their writs. However, they could do nothing more. Force had become law.
After the Kashijora case, Impey abandoned Hyde and his expansive views of jurisdiction. Descriptions of the above cases were on their way to London. Hastings wrote of Hyde at this time, “though not personally indisposed to me, [he is] governed by a harsh and petulant temper, and possessed of the most extravagant opinion of the omnipotency of his office . . . which his colleagues must maintain, or their authority and dignity suffer by a diminution of his.” Hastings and the Council again petitioned Parliament to intervene and moderate the Supreme Court’s actions. They appended minutes, testimonies, excerpts, and appendixes. The Supreme Council’s defense of their actions in the Kashijora case joined the printed Dacca, Patna, and Touchet petitions already in circulation in London. Philip Francis, Hastings' nemesis on the Supreme Council, joined forces with him against the Supreme Court. In December 1779, Francis wrote in his journal:
Again I urge Hastings to push the Court, as common cause, and on grounds, which equally interest us both. I tell him plainly that the only way is to attack, and that we ought in our own defence to solicit the Court of Directors to address the King to remove Hyde . . . I suspect Impey and Chambers are very well disposed to leave Mr. Justice Hyde to his own Reflections.
In February 1780, Francis noted in his journal “Hastings now talks of impeaching the whole Body of the judges.” Hastings, ever practical, lured Impey to his side by appointing him sole judge of the Sadr Diwani Adalat with an additional salary of Rs. 5,000 per month, plus Rs. 600 per month for expenses. For more information, see the section on Hyde’s Shorthand.