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against natives, arrests we apprehend may become general. - Several clauses are transposed from Lord Brougham's Law Amendment Act, with some improvements: and then follow, a collection of clauses which eminently deserve our praise as to their object and intention, but we may not add as to their reduction: they place under the common law jurisdiction various equitable rights or rights of exclusively equitable cognizance at present, and thus substitute a less expensive, a less complicated and a less dilatory remedy than the present. This is effected in two ways: in some of the cases, the equitable right is declared a legal one : in other the equitable right, is simply placed under the common law jurisdiction. To the right of discovery as exercised by Bill of discovery at present, it is proposed to superadd the alternative of giving the discovery by a viva voce examination : but the right to examination viva voce is clogged with a preliminary proceeding ;-a rule to shew cause : we should think that upon a mere prima facie or ex parte statement, a plaintiff should be ordered to attend to be examined, without prejudice of course to any objections he might legally take to any questions proposed, or to the propriety of his being at all examined. Ten years hence the legal mind will be sufficiently advanced to give us this reform, and in ten years more to give us the examination of plaintiff and defendant without previous conditions. Still another collection of clauses follows, which are entitled to our unqualified praise as to their object and intention : it is to take off the heavy drag of an equity suit in certain cases and to substitute the more summary mode of notice petition and motion: a very high estimate must be made of the value of this reform, if the apprehension and alarm which it has raised in the profession are to be taken as the criterion : but we regard this effect, simply as that of common daylight on persons who have long been confined to a dark room : and happy on the public account are we to believe that Her Majesty has not a more strong sighted class of subjects, nor a class to whom good laws will eventually be more welcome, if the legislature will do its duty and assign to their great administrative talents a good in the place of a bad system. One clause gives a court of equity the novel power of assessing damages on Bills for the specific performance of an agreement. This we regard as a wise and salutary provision: but it is also this—an authority to the Court to award one thing when the plaintiff has instituted his suit for a different thing the possibility of which was urged by our learned Chief Justice Sir Lawrence Peel as a strong objection to some of Sir Erskine Perry's proposed law reforms : in this instance therefore we have another striking illustration, of the unsound, visionary, evanescent nature of some of the most strongly urged objections to law reform ; and of the value of free discussion, which, if it does not instantly disperse the phantoms, makes their champions first ashamed of, and then desert them. The crowning measure of this miscellaneous act still remains to be mentioned : at one sweep, the taking of evidence by written deposition before the examiner of the Court is abolished, and the viva voce examination of witnesses in open Court substituted for it, in all suits and on all sides of the Court. There is a provision also making all the assets of deceased persons equitable assets, and directing the administration of estates accordingly.
The third Act mentioned at the head of this article, and described as, for facilitating the execution of the process of the Supreme Court without the local limits of its jurisdiction at once removes a defect which ought not to have been suffered to remain so long, and confirms and gives vitality to a branch of jurisdiction which ought never to have existed, and to which that defect has happily opposed a check: we, therefore, regard the act with only partial satisfaction. The defect alluded to is, the absolute impotency-(for such in many cases it is) of the Supreme Court to get its process executed, in consequence of its having only its own local officers and being isolated from all other public funtionaries of all kinds in all departments throughout India : and yet its judicial authority extends to the extremity of the Bengal and Agra Presidencies. If the Sheriff of Middlesex, as the officer of the Queen's Courts at Westminster, had to send a special bailiff to the Lands' end, every time he has a writ, the case would only be like, but not parallel : for, tens of miles in England are hundreds in India, and distance is aggravated by inconveniences and difficulties, of which only those who have encountered them have any idea. Now, so far as the Court has a just and legitimate jurisdiction, it ought not to be in such a predicament: and not the Court, but rather the public suffer, e. g. a creditor resolved to recover a debt, has gone to the expense of filing a plaint, which has cost him probably upwards of rupees 100 (£10) and a writ is issued ; but he is then told that the defendant being at Benares, (or as the case may be) Cawnpore, Agra, Delhi, Meerut, Ferozepore, &c. it can not be exccuted, unless he will make an advance to the Sheriff of expences: the tradesman therefore finds his suit abortive except of costs : and the Court's juris
diction is regarded as nugatory ; the case supposed is one in which the jurisdiction is legitimate ; as it is, over all “ British subjects,” throughout the length and breadth of the two Presidencies. This jurisdiction it has by gift of the Legislature ; but it also exercises a jurisdiction which it has acquired only by the contrivances of professional cupidity, and by fictions resting on violent constructions of the Charter: we allude to the jurisdiction which the Supreme Court exercises over the natives of India out of Calcutta : and on behalf of them, from the banks of the Sutlej to the Mahratta ditch, we protest against it, not only as usurpative, but as pregnant with abuses, and inevitably oppressive wherever it is exercised. Moreover it is unnecessary; for, in every province in every Presidency, there is a Court in which justice may be obtained ; and though it is said, and truly we fear, of the Mofussil Courts, that bribery, perjury, subornation of perjury, false personations and fraud of every kind are rampant there ; yet, all these and more are the mere incidents of the barbarism and consequent corruptness of the suitors, and the natives of India generally. But nothing, we believe, is gained for truth or justice, by transferring these villanies of the race, to the scene of the Master's or the Prothonotory's office, or to the witness box, even in the presence of the Judges : but rather the contrary; for in all these places, the sagacious native cannot fail to feel, and the more vividly the greater the rogue he is, a degree of security, independence and superiority, seeing, that necessarily he is permitted to use his own language, and that the judges and its officers (which is not the case in the Mofussil) except the one interpreter, are utter strangers to it. The pestilence which springs from the Terai does not lose its poison by coming into the city : the marble conduit does not purify muddy waters; but it may take a stain, and become itself muddy : and so, neither the Court nor the natives can be improved by removing their quarrels from Benares to Calcutta. În conclusion, therefore, we would entirely except from the act under consideration, all process of the Supreme Court against the natives of India not being actual inhabitants of Calcutta. What the act proposes is, to make the Judges, Magistrates, and Justices of the peace in the East India Company's Service, agents for executing Supreme Court Process : this it does, but in a very awkward manner.
In the preceding comments we have written freely both of men and measures; determined to use, and set the example of using, this dear bought, blood bought, privilege of Englishmen, equally their privilege, whether living under their own free constitution, or living as we do here, under an experiment, of which it is difficult to say what is the principle: it is British, it was Grecian; and we may well be proud of it, consecrated, as it is, by the verse of Euripides and Milton, and cherished in the affections of all good men :
“ This is true liberty, when free born men,
What can be juster in a state than this.” That we have used this liberty sincerely as it respects the opinions expressed, bear witness our own conscience! for disinterested purposes, gainsay it who can! for the public good, ye citizens of Calcutta, be our witnesses, for you know what is the state of the law, and of the local administration of justice. And, if we owe to general readers some apology for the abstruse nature of our arguments, we trust they will bear in mind that it is difficult to avoid being occasionally obscure, in contending in detail against a system which has degraded what ought to be a science to a craft and mystery. From this condition, it is our aim to raise the law and to place it in the proper rank and in just estimation: the success of our labours will be to mankind the triumph of truth and justice, the dawn of a new and better order of things, like light springing out of darkness. If in the prosecution of this grand design, we be found to write strongly, and strong writing be objected to, we confidently appeal to the candid, the sober and the just, to say, whether the strength does not lie in the undeniable truth of the sentiments rather than in any exaggerative force of mere words, and with this verdict we are satisfied.
Art. 7.-Memoirs of Sir Elijah Impey, Knt. first Chief Jus
tice of the Supreme Court of Judicature at Fort William, Bengal; with anecdotes of Warren Hastings, Sir Philip Francis, Nathaniel Brassey Halhed, Esq., and other cotemporaries ; compiled from authentic documents, in refutation of the calumnies of the Right Hon'ble Thomas Babington Macaulay, by Elijah Barwell Impey. London. Simpkin and Marshall, 1846.
HISTORY has its ogres-its traditional monsters of cruelty and iniquity-no less than fairy-romance. Our chronicles would be dull and lifeless indeed, if there were no diversity of character, as of incident, to give animation to the written page. Strong contrasts, as every artist knows, are necessary to the production of effect. The painter, the dramatist, the novellist are equally dependent upon them. There must be a little exaggeration. The lights must be strengthened; the shadows deepened. The modesty of nature must in some wise suffer. Insensibly a line is rendered harsher; a tint more decided; a shadow broader, a light more brilliant. There may be no intention to exaggerate—but exaggeration progresses apace. It is so pleasant to watch the growing effect.
It is certain that the historian ought to be exempt from this weakness. It is equally certain that he is not. The temptations which beset him are great. Anxious to clothe with living flesh and blood the dry bones of history, he stamps with an individuality, good or evil, the chief actors in the scenes which he is endeavoring to revive. He brings one after another prominently forward, lustrous with many virtues or dark with accumulated crimes. The tapestry of historical narrative must have its contrasts. The figures must stand out distinctly. Each one must have a character of its own. If it were not for such portrait-painting history would be intolerably dull, and mere drudgery the office of the Historian.
We are by no means disposed to assert that an excess of imagination is the besetting fault of our English historians. We are rather inclined to reproach them with a want of imagination. We should entertain no very exalted opinion of the imagination of the painter, who were to individualise the different personages in a crowded piece, by giving to one a humped back, to another a portentous nose, to a third a shaggy head of hair. Such tricks may be the stock in trade of the caricaturist; the real artist has nothing to do with them.