Vol. 17, Part II · pages 76–80

53AND THE LORD SAID UNTO— it was exercised when Calais was in the possession of this country. Of that there is no doubt. Calais sent members to Parliament, and at one period the law of England prevailed there. It is not necessary, however, to enter into this question. We understand that a learned dissertation was made in the court below, founded on the doctrines of Lord Hale, in which a distinction is made betwen the jura summi imperii and the jura mixti imperii or potestas jurisdictionis (Hale’s Analysis of the Civil Part of the Law of England, section 6th); and it was contended that though the Supreme Court has no jurisdiction in the ordinary sense of that word, that is no civil jurisdiction over natives; that is it has not criminal jurisdiction; that it has not equitable jurisdiction, that it has not that ecclesiastical jurisdiction; that it has not Admiralty jurisdiction, yet that it has a potestas to be exercised over all the subjects of the King.* Now it is remarkable, that in almost every part of this charter but that now under consideration, the words “power, jurisdiction, and authority” are to be found; but in this particular clause the word “power” is not found. It is very singular, that where so much is built upon the term power, as distinct from jurisdiction, the word expressing power should not be found. But what is jurisdiction as distinguished from power ? and what jurisdiction is this which is meant to be exercised ? In the Pandects, lib, ii, tit, 1, the nature of jurisdiction is fully discussed, and one of the commentators gives a definition of it in a single line, “jurisdictionest notio quae jure magistratus competit. ”** *Sir Peter Grant, in his judgement in the court below, after mentioning the distinction drawn by Lord Hale between the jura summi imperii and mixti imperii, proceeded to state Lord Coke’s description of the Court of King’s Bench, 4th Instit. cap. 7; and observed. “The third description of power possessed by this court has reference to the supreme ministerial authority which is lodged in it, altogether separate and distinct from its judicial jurisdiction or the power it exercises in the trying of cases, whether in the first instance or by way of appeal: being a sovereign potestas imperii, expressly described by Lord Coke as a power to correct errors and misdemeanors judicial; not by the way of trying, hearing, and determining, as in pleas of the Crown, but by issuing the prerogative and mandatory writs of the Crown; as of habeas corpus, prohibition, mandamus, and by bailing any person for any offence whatsoever.” **Cujacil paratitla in Pandecta, lib, ii, tit. 1: jurisdiction’s proprie notio est quae jure magistratus competit, quae enim maridata a magistrateu, aut a lege specialiter magistratui delegata est, non jure suo competit; officio quidem magistratrus continetur sed jurisdictione non continetur.

54 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES It is said that the Supreme Courts are Courts of King’s Bench, with all the authority of the King’s Bench. In Wales the jurisdiction to the Court of Great Sessions is given by the 34th and 35th of Henry VIII, c. 28, nearly in the same words. They have been introduced too into the charters of the Courts of almost all his Majesty’s colonies, and are, indeed, a general formula, of which the most extensive import must be qualified by the specific provision by which it is accompanied. It is worth while to observe also, that a clause (sec. 4) of a similar description is to be found in the charter given to the Supreme Court at Fort William (Morley’s Dig. ii., P. 551); and that clause is taken from a clause in the charter of the 26th Geo. II. page 446, of the charters of the Company, and which ordains directs, establishes and appoints, that “the Governor or President and Council of Fort William in Bengal for the time being, shall be Justices of Peace, and have power to act as Justices of Peace, and as Commissioners of Oyer and Terminer and general Gaol Delivery; and that they, or any three or more of them (whereof the Governor or President, or in his absence the senior of the Council then residing at Fort William aforesaid, to be one) shall and may hold sessions of the peace, and of Oyer and Terminer and Gaol Delivery respectively, in and for the said town or factory of Calcutta, at Fort William in Bengal, and other the factories subordinate thereto, and do all such other acts as Justices of Peace and Commissioners of Oyer and Terminer and Gaol Delivery, with such powers, jurisdictions, and authorities, and under such regulations and restrictions, as are herein before given, granted, limited, and appointed, concerning Justices of Peace and Commissioners of Oyer and Terminer and Gaol Delivery for the said town of Madraspatnam.” The clause respecting Madras is found at page 430, and is in these words: “ We do give and grant unto the said Company and their successors and do by these presents will, ordain, establish, and appoint, that the Governor or President and Council of Fort Saint George aforesaid for the time being, shall be Justices of Peace and have power to act as Justices of Peace in and for the said town of Madraspatnam, and in and for Fort Saint George, Fort Saint David, Vizapatam, the factories on the coast of Sumatra, and all other the factories

55AND THE LORD SAID UNTO— subordinate to Fort Saint George aforesaid, in the same or the like manner, and with the same or the like power as Justices of Peace constituted by any Commission or letter patent under our great seal of Great Britain, for any county, city, or town corporate in that part of our said kingdom called England, do or may exercise such office.” It was right, when a Supreme Court was constituted, that the Judges of that court should also be declared to be justices and Conservators of Peace throughout the whole extent in which they had occasion to act at all, either in their ordinary jurisdiction, or their more extended jurisdiction; and it was then natural, that instead of giving to the Judges a jurisdiction assimilated to that of Justices of Peace by their commission, they should have a power as Conservators and Justices of Peace, of the nature possessed by the Judges of the Court of King’s Bench, and such appears to be the manifest intention of this section. It has been, too, contended on the other side, that the Supreme Court has the power of issuing all the mandatory writs of the Crown to all the courts, of whatever description, within the territories subject to the Presidency of Bombay. If that power existed under the former general clause, why does the charter proceed, after establishing Courts of Request and Quarter Sessions, “to grant and ordain that all the said Courts, and Justices and other Magistrates appointed for the town and island of Bombay, and the factories subordinate thereto, shall be subject to the order and control of the Supreme Court of Judicature, in such sort, manner and form, as the inferior courts and Magistrates of England are by law subject to the order and control of our Court of King’s Bench; to which end the said Supreme Court is empowered and authorized to award and issue a writ or writs of mandamus, certiorari, procedendo, or error” (clause 59; Morley’s Dig. ii., P. 677). Where was the use of this clause, giving the court this jurisdiction with respect to certain courts to be erected within the local limits of Bombay, if it had a general jurisdiction over every court established within the limits of the territories subject to the Presidency. The Court indeed had a further jurisdiction in its character of a Court of Oyer and Terminer. In the statute of 34 Geo. III., chap. 52, which was the Charter Act preceding the last, a power is given to the Governor General of

56 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Bengal to issue commissions of the peace in His Majesty’s name, and to appoint Justices of Peace for the Province and Presidency, island, town and factory of Bombay, and the places belonging or subordinate thereto : and a clause is added, (sec. 153) declaring “that all convictions, judgements, orders, and other proceedings, which shall be had, made or pronounced by or before any Justice or Justices of Peace within any of the British settlements or territories in India, out of the court of Oyer and Terminer within and for the same, shall and may be removed by writ of certiorari into the court of Oyer and Terminer and Gaol Delivery, of and from the same Presidency, al the instance of any of the parties thereby affected or aggrieved.” A similar provision is also made with respect to convictions before the Zillah Magistrates, by the 53rd of the late King, in cap. 155, Sec. 105 by which a power of removing them by certiorari is given in the court of Oyer and Terminer of the Presidency. Now it is a maxim, that where the power of issuing the writ of certiorari is not expressly taken away, it exists by common law in the Court of King’s Bench; and to oust their jurisdiction it must be taken away expressly. But here it is not the question of taking it away; but the question is of giving it expressly, and whether it would have existed at all unless so given. The Judges of the Court of Oyer and Terminer at Bombay are the Judges of the Supreme Court: but they do not take this superintending authority over the Zilla Courts qua Supreme Court; but a special authority is given to them for that purpose to issue a certiorari out of the Court of Oyer and Terminer. This tends strongly to show that the Supreme Court, as such, does not possess the power which is contended for. Lord Tenterden.– “The conviction of the Justices of Peace may be removed by certiorari into the Supreme Court of the Presidency.” Into the Court of Oyer and Terminer, that court being constituted of the same persons. But the authority is not given to them as Judge of the Supreme Court, but as Justices of Oyer and Terminer. The charter of Bombay does not suppose it confers an universal criminal jurisdiction, for it constitutes a court of Oyer and

57AND THE LORD SAID UNTO— Terminer and Gaol Delivery, to enable the court to exercise criminal jurisdiction. The power of civil jurisdiction is given specifically :– The persons to be subject to the jurisdiction are specifically pointed out. A general jurisdiction over the Provinces can never be supposed to be given unqualified, and with all the privileges and prerogatives of the Court of King’s Bench. The Supreme Court is a civil court and a court of equity; and according to the rules of construction applied on the other side you give all, and then you give a portion; you give all the jurisdiction; you give as it were the whole estate, and then you dole out in detail these little beneficial legacies. Those who have already obtained the whole, are to have, under this rule of construction, something less than the whole. With respect to Moro Ragonath (1 Knapp, 8), however, it is impossible to contend that such a power could have been given to the Supreme Court of Bombay as was attempted to be exercised in his case. He was residing at Poonah. It was wanted to remove a cause into the court of Bombay. A habeas corpus was granted on an affidavit, and a person of high rank, nearly related to the deposed family, was called upon to bring up the body of a boy of whom he was the natural guardian, but who it was stated was then unduly detained in his custody. The question arises immediatley, how was he subject to this jurisdiction? If he had resisted, and a scuffle ensued, how could an attachment have been issued against those who disobeyed the writ? By this power of issuing an attachment you give a local jurisdiction, which by the regular prescribed terms of the charter does not exist. If the party disobeying is of the designated class subject to the jurisdiction of the Supreme Court, he ought to be registered : this man was not registered, and therefore there seems to have been no jurisdiction at all in the Court to have issued the writ : and he never could have been guilty of contempt in disobeying it. Even the Roman Emperor tells his subjects they are not bound to obey where the Judge exceeds the limits of his territorial jurisdiction: Pand, lib. 2. tit. 1. sec. 20. “extra territorium judicenti impune non paretur.” With respect to the case of Bappoo Gunness (1 Knapp, 11), a writ of habeas corpus was directed to the gaoler of the Provincial