III. THE BRITISH INDIAN PRESS UNDER THE GOVERNMENT OF LORD AMHERST.
The Right Hon. William Pitt, Lord Amherst (since created Earl of Arracan, as a reward for his having acquired and encumbered the revenues of Bengal with that useless and pestilential province at the cost of the flower of the Indian army, and a perpetual debt, it is calculated, of about £500,000 per annum,) arrived in Bengal as Governor General, about the 1st of August 1823. Very soon afterwards, viz. on the 30th of that month, there was published in the Calcutta Journal a long defence of his Majesty's Supreme Court of Justice at Calcutta, against an attack of a cotemporary publication upon a decision of one of its judges -- Sir Anthony Buller. As the judges were, by the new law, protected from animadversion equally with the Government itself, it was reasonably believed that the same power which permitted them to be attacked, would permit them to be defended. To the astonishment of every one, however, the following passage in the defence was fixed upon as sufficiently culpable to justify the suppression of the paper, or the transportation of its conductors.
"Our readers cannot but recollect the subject of the paper for which Mr. Buckingham was removed from India. The mention of this event is essential to our present argument, and we hope we may speak of it as a matter of history without offence, as we shall express no opinion on it either one way or another. If it were not absolutely necessary, we should not even allude to it; but in doing so, we shall not, for a moment, forget the respect due to the established laws and government of the country. The article in question, related to the appointment of Dr. Bryce, as clerk to the Stationery Committee, and the part of it which is understood to have been so offensive to the Government as to determine Mr. Buckingham's transmission, was an allusion to the report of Dr. Bryce being the author of those letters, placed in connection with his appointment to his secular office. Thus, it appears, Dr. Bryce's reputed authorship and pluralities, were the cause of Mr. Buckingham's removal; and of the new laws which are in consequence established for the press. But for him, this society might have continued in the enjoyment of all its former privileges, nor have been deprived of one of its members. When those who watch with anxious expectation the progress of improvement in this country, and the spread of that Gospel which Dr. Bryce is commissioned to preach, consider the effects of these measures, it will be for them to award him the praise or censure which they think he has deserved."
The above paragraph was called a gross violation of the laws for the press, though they contained the following apparently very liberal qualifying clause: viz.
"The foregoing rules impose no irksome restraints on the publication and discussion of any matters of general interest relating to European or Indian affairs, provided they are conducted with the temper and decorum which the Government has a right to expect from those living under its protection; neither do they preclude individuals from offering, in a temperate and decorous manner, through the channel of the public newspapers, or other periodical works, their own views and sentiments relative to matters affecting the interests of the community."
Notwithstanding the kind assurance and encouragement, I may almost say temptation, here held out to every one to discuss, and offer his own views and sentiments on any matters of public interest, &c., an individual was now sentenced to suffer banishment from the country for being merely connected with a paper, which contained the foregoing highly decorous, temperate, and respectful paragraph. I was not even charged with having written it; but the Government declared "Mr. Sandys and Mr. Arnot" to be "the avowed conductors of the paper," and therefore "clearly and personally responsible;" and that, as they were unwilling to suppress the journal, and as Mr. Sandys, being a native of India, could not be arbitrarily banished, Mr. Arnot should be so, as being an unlicensed British subject, for a warning and example to others.
My answer to this has been, that the mere want of' a license or passport to reside in Bengal had not, from time immemorial, been considered a sufficient ground for removing anyone from that country; far less, especially, after be had resided for several years with the tacit consent of the Government as I had done; and far less since the opening of the trade to India, at the last renewal of the East-India Company's Charter. 2dy. That I could not consider it a political offence to support with my pen a journal which was published by the express license of the Government, so long as that license was unrecalled. 3dly. That the paragraph objected to was not, in fact, a violation of the rules for the press, by any fair or just interpretation of them. 4thly. If it had been so, I was not by any means personally responsible for it as conductor of the paper; this responsibility having been openly and avowedly undertaken by Mr. Sandys. It is unnecessary to multiply reasons against the measure, as it was so utterly indefensible that no person, either in Asia or Europe, in so far as I know, ever stood up publicly to defend it. And as Lord Amherst's administration never were able to justify it, either to the public in India, or to the satisfaction of their official friends and supporters in England, its true causes must perhaps be sought for in other than public or political grounds.
It is well known that the East-India Company have ever regarded with a peculiar degree of jealousy the growth of a British community in India, independent of their government. To guard against this, persons were to be forbidden to proceed to reside in India without the license of the Court of Directors; and military officers or others resigning the service, were to be required to proceed to Europe without delay. The former restriction was intended to prevent a sudden influx of British settlers; the latter, to guard against the influence of men who, after having risen, during a series of years, to a high rank in the public service, and having thereby formed extensive connexions in every branch of it, as well as acquired a thorough knowledge of the resources of the country and policy of the state, with its points of strength or weakness, might, it was supposed, by connecting themselves with great mercantile houses, and thereby obtaining the command of large funds, and becoming the bankers or agents of the numerous military and other officers who were indebted to such houses, wield an influence formidable to such a Government as that of India, which is itself composed of the agents of a commercial body. Most of the great houses of Calcutta were fortified by the influence of such civil and military servants of the Company who had retired from its service, to connect their interests with those of the body of free-traders and private merchants; and the jealousy of the Directors at home must have been still more roused, by the marked support which some of these houses had given to the efforts of the press to inculcate and extend the principles of free trade and colonization.
There is little doubt, therefore, that this subject must have been frequently pressed on the attention of the Bengal Government in the despatches from home. But it would have been an ungracious thing for the Company's officers to put such laws in force against their old friends and fellow-servants, nearly of the same rank and standing with themselves, who had now also the means of being eminently useful to them, and might probably have conferred great obligations on the very persons who were expected to assist in effecting the ruin of their prospects. For example, Dr. Ballard, of the house of Messrs. Alexander and Co. the agent of Mr. Buckingham, and managing proprietor of the Calcutta Journal, had been a surgeon in the Company's service; had established a bank in the interior; and had at last become a member of that respectable firm. He exercised a controlling power over the Calcutta Journal by means of a legal instrument -- could sanction the removal of its conductors -- occasionally contributed editorial articles, and wrote the paragraph for which it was finally suppressed; as was elicited in evidence before the Committee of the House of Commons (not the paragraph above quoted). But then he was the intimate friend of Mr. Butterworth Bayley (since member of the Supreme Council, and for some time Governor General), then chief secretary and supervisor of the press. They were, besides, of the same religious party it is said, and attended prayer-meetings, and sung psalms together. To this pious party Mr. Sandys, the East-Indian editor, I believe also belonged. How it happened I know not; but certain it is, that Dr. Ballard was allowed to remain in the country for years after, accumulating a fortune to return at his leisure, and enjoy it in England. It was natural, perhaps, that the Government should endeavour to take credit to itself, with the authorities in England, by selecting an isolated individual, as a substitute for more powerful men!
By our private agreement, then known only to those immediately concerned, it was stipulated that I should have the power of objecting to the insertion of any thing which I conceived hurtful to the feelings, or inconsistent with the duty, of a British subject. To avoid offence, perhaps, this power was expressed in the most general terms. Unless this private agreement had been made known to the Government some way or other, it could have had no grounds for assuming as it did, that "Mr. Arnot" was, jointly with "Mr. Sandys," "the avowed conductor "of the paper," and "clearly and personally responsible" for any article "professedly editorial;" No such thing had ever been asserted; but quite the reverse. Mr. Sandys had always been distinctly avowed as the sole responsible editor; and to undertake that responsibility he had contracted for a high reward.
Let me here make one reflection. Were a native of these islands to engage to conduct a public political journal, in conjunction with an American, or a Frenchman, or a person of any other nation, known, or supposed, to regard British subjects with jealousy, and were he to stipulate in consequence that nothing should be inserted without his previous approval; I should conceive such a reservation to be praiseworthy, and only a proof of strictly conscientious and patriotic feelings. What should be thought, then, of a British Government, which would make such a clause, when surreptitiously discovered, a ground for visiting a British subject with banishment and ruin? Such was the first public act of Lord Amherst's government.
The result of this measure I shall narrate as concisely as possible. On the 12th of September 1828 I was taken into custody on a warrant of the Governor-General, and lodged in the strong room (as it is called) of the Royal Barracks, Fort William, to be detained there until a Company's ship should be ready to convey me to England; which might probably involve a preliminary confinement of several months, there being no such vessel likely to sail for that period. Having ascertained that this was illegal, I authorized Mr. Hogg, attorney-at-law, to make application on my behalf to the Supreme Court for my release by habeas corpus. A writ having been issued accordingly, and a return made by the Fort-major, Col. Vaughan, the case was discussed on the 19th before the Hon. Sir Francis Macnaghten and Sir Anthony Buller. Mr. Turton (son of Sir Thomas Turton). before-mentioned, as advocating the cause of the press, took up the case for "the prisoner" in the most disinterested manner. The gentlemen of the law vied with each other in offers of gratuitous assistance; and the result was expected with deep interest; for had the legality of the arrest been affirmed by the court, almost every jail in India might have been filled, next day, with unlicensed British subjects.
After a full discussion of the question by Mr. Turton and Mr. Fergusson, who appeared as advocate-general on behalf of the Government, it was decided by Sir Francis Macnaghten, the senior judge (his junior dissenting), that the act empowering the Government to arrest, and embark on board a ship bound for England, did not authorize any person's confinement. The following memorable sentiments uttered by the learned Judge on this occasion, shew how much the state of feeling on the subject of the press had been improved since the removal of Mr. Buckingham. Then it was regarded as a public enemy, and the court of law emulated the council of state in establishing laws to put it down. Now, however, by moderate conduct a revulsion of feeling had been produced in its favour; and the same judge who formerly denounced its errors, had now become the firm and patriotic defender of its conductors.
Sir Francis Macnaghten began by:
"regretting that there was little hope of a concurrence of opinion between him and his colleague in office on the subject before them. But (said his Lordship) I think there must be something plain and distinct -- something clear and express in the Act of Parliament -- something which admits of no other construction, before the subject can be deprived of his liberty. If this principle be not adhered to, and preserved without any reservation, then I know of no security from the laws on which the subject can place reliance. I am well aware that, if the Governor-General, acting under 33d Geo. III., or the 53d, send to England British subjects found here without a license, we have no right to interfere -- he is authorized to do so by Act of Parliament; and whether that be a constitutional or unconstitutional act, with that, sitting here as judges, we have no concern. Nor have we any thing to do with the discretion, or indiscretion, with which he may exercise that authority; nor with his regard to liberty or his regard to tyranny. Therefore I put this entirely out of the question. But the Act of Parliament conferring such authority, gives no power of imprisonment. The word is not found, nor the idea conveyed in it at all. If the word "detain" even had been used, it might have afforded some shadow of an argument for this imprisonment; but we do not find even such a word in the act. Therefore the obvious and necessary conclusion is, that the act has only one object; it gives the power to seize and remit to England persons found here without a license; but confers no power whatever of imprisoning them. Many things have been introduced which were not necessary for the argument; as the 104th section of the 53d of Geo. III. (on which the warrant of commitment is founded) is alone necessary, and must by itself decide the question. I do not deny that other acts may be referred to for illustration or analogy, but on this the question depends.
"Although, sitting here as judges, we have no right to inquire whether an act be constitutional or unconstitutional, yet we are bound, as British Judges, to put upon it a constitutional rather than an unconstitutional interpretation; and were it liable to two constructions, where the right of the subject is concerned, we are bound to give it an interpretation in favour of liberty.
"On this point I wish to be clearly understood. To say that we enjoy here the full privileges of the British constitution, is absurd. But the fewer the privileges we do enjoy -- the more numerous and heavy the restraints imposed upon us -- the more our liberty is narrowed; the more, I say, does it become incumbent on the Judges to guard with greater strictness that portion of liberty which remains to us; for we have the less to spare.
"With regard to guarding against the mischief a party may do before a vessel is ready for his conveyance to England, let us see what the Legislature has done in another case very nearly related to this. When a person is residing in the country with a license, it can, of course, only be recalled on account of his own misconduct. Therefore in such case, it is to be presumed, that there must be some cause which renders his removal a matter of public expedience. But even then, did the Legislature empower the Governor-General to seize and immediately imprison this public enemy, to keep him from doing more extensive mischief until he could be conveyed out of the country? No such thing; he is allowed to roam at large for two months! Then in the other case, if any idle person happen to have come here from England, not knowing perhaps that a license was necessary, or without thinking about the matter, and thus be caught in the trap, and ordered out of the country without perhaps having committed any offence, or what is a mere parliamentary offence, can it be contended with any shadow of reason, that he is to be imprisoned without any express authority.* [With reference to the supposed danger of persons ordered to quit India being allowed to go at large in the intermediate time before their embarkation, Mr. Turton observed, in one part of his address to the Judge, that he was well aware the Government did not apprehend any danger at all in the present case. Indeed, his client was punished for the fault of another person. -- Cal. Journal.] I say, without having committed any offence, not with reference to the particular circumstances of this case, which have induced the Government to order Mr. Arnot's removal from the country; for I declare I know nothing about them, and have nothing to do with them. But the Government, by this mode of proceeding, have declined prosecuting him for a misdemeanor, and rested satisfied with his being removed. It is to be presumed, therefore, that he has committed no offence which call for prosecution, and is removed merely for not having a license. In such a case, are we justified in considering him a dangerous man, who must be secured, right or wrong, legally or illegally? Am I sitting here as a British judge, to put words in an Act of Parliament and supply its supposed deficiencies? And for what? why, to invade the liberties of the subject. Am I to say that such an expression was inadvertently omitted, or such a power was meant to be given; and, on such ground, agree to this person's being imprisoned, without any express authority from the statute? Sitting here as a British judge (and I hope I am not obliged to lay aside my feelings as a man), and viewing the case, as I hope I do, both as an English lawyer and as a gentleman, I declare that my understanding and my conscience will not suffer me to send back this person to the cell, or prison, or whatever it may be, in the fort, where they have confined him. I hope judges of this court will never be swayed in their decisions by any respect of persons; nor, if in construing the laws they find two roads, pursue that most agreeable or convenient to men in power, merely because they know it to be so. I trust they will never, in any case, truckle to the Government, as I fear those judges have done. [As his Lordship pronounced these words in a very emphatic manner, he laid his hand upon the MS. book of cases from which the Advocate-General had quoted that of Mr. Duhan.] If such ever were the case, it would afford a cloak for every species of oppression. I would infinitely rather see the court abolished, for it would then be a nuisance rather than a protection to the subject. I declare I should hope, in such a case, to see a public meeting of the inhabitants of Calcutta to join in a petition to Parliament to recall its charter and put an end to it at once. This court is supreme, and the moment one particle of this supremacy is forfeited, I trust the Court will be annihilated.
"Suppose we were to remand this gentleman again to the fort, I should like to know how long he is to be kept in custody. By this return, on the extraordinary nature of which I must now remark, the Government assumes a power to act as it pleases -- to imprison him with anyone it likes: and by what authority? I know of none. The words "to detain or imprison" are not once used in the act; and am I to put a word into the act to construe it by implication? I confess it would be some comfort, some sort of satisfaction to me to find it stated in this return how long he is to be kept in durance, and whether for weeks or months? But the return does not favour us with any information on this subject; it does not say when he is to be put on board a ship, or how long he is to remain confined in the fort. Lord Holt refused to know that the city of London returned members to Parliament; and on the same grounds, the judges of this court have no right to know that a ship will ever sail to England, and thus, he may be confined for any indefinite length of time. Good God! is it to be tolerated that a British subject, after being shut up in this manner without any authority, is to be kept all this time, and as long as the Government may think proper to keep him in prison, without bail or mainprize? Can this be done under English laws, for any thing but felony or treason? But the act which is assumed as the warrant for this, applies equally to Bombay, whence the Company never have a ship bound directly to England. Then are we to put a forced and unwarranted construction upon the act, by which a British subject, for merely being in India without a license, is to be condemned to perpetual imprisonment? The idea is monstrous. But if the Governor-General ever had the power to imprison him, I should say that he might be bailed; because of they prosecuted him, even at home, then he is to be committed, only if not bailed.
"I do not know what feeling this person's release may excite, but if a general feeling of satisfaction or congratulation should prevail at his release, I see no reason why the Government should not participate in it. The Governor-General himself, in my opinion, will not be offended at not meeting with unlimited submission to his will, knowing that such blind compliance must necessarily impart weakness and instability to his own power. Convinced, by the experience of living under a constitutional government, of the eminent advantage of every one being secured in tile full enjoyment of his rights, he must rather be pleased at seeing the liberty of the subject protected. I am not intimately acquainted with his Lordship who has lately arrived amongst us; but I naturally ascribe these sentiments to him as a British nobleman.
"My principle is, that if the words of the Act of Parliament are not clear beyond a doubt in conveying the power to imprison, then we ought not, by so stretching its meaning, to curtail the liberty of any man. We ought (though I do not speak of this as a constitutional act: I care not whether it is so or no -- but this I do say) we are bound to give it a constitutional, rather than an unconstitutional construction. It does not empower the Government to imprison: and although it may be said that in the fort, in the care of such a gentleman as Col. Vaughan, this individual will experience all the indulgence which that officer can extend to him, and no one who knows him can doubt it; yet, in depriving a man of his liberty, you take away that from him which is necessary for his happiness. It is in vain to talk of the pleasantness of this place, or the other; he is no longer master of himself: and this alone is enough to make him miserable. What more, I ask, can any tyrant do, than make his victims miserable? It is true, you may put him on board ship, and keep him there in charge of the captain: but I should think the wooden walls of the vessel a sufficient prison. They could not confine him to his cabin, or keep him in fetters. Nay, I think him entitled, by the terms of the Act which provides for him a good and sufficient vessel -- one of the Company's ships -- to the best treatment and accommodations. And when the ship reaches England, this gentleman is immediately entitled to his discharge from the vessel at the first place where she is safely moored, and is at liberty to go where he chooses. No conditional term of imprisonment is to be tacked to the end of the voyage. And is imprisonment less a hardship in the East-Indies than in England? Is it of less consequence to a British subject here? Is the society in this country less consoling to his feelings, or less necessary to his happiness, than in Europe, that we should thus trifle with his liberty? On every principle of law -- of reason and of justice, then -- I declare it to be my decided opinion, that Mr. Arnot be discharged."
The opinion of the learned judge on this case was still more decidedly expressed in two letters published soon after, under the signature of Z (in reply to some factious newspaper attacks made on his decision); from which the following is an extract:
"What is this case? A gentleman who had nothing but education for his patrimony, -- nothing but merit for his recommendation, -- nothing but industry for his maintenance: qualified, by having learned the languages of this country, to make his way towards a competency, he inevitably incurred debt; yet, moderate in his desires, he had before him, what he dwelt upon as a cheering prospect. He is suddenly ordered from the scene of his fancied prosperity; and having forsaken his pursuits in Europe, his fond hopes, his national expectations, the fruits of his labours and of his studies, are blasted and destroyed in a moment. The world, so far as it concerns him, is now a desolate wilderness. In the dismal gloom, he cannot discover a single object upon which his talents, or his toils, may be employed. Surely, this might satiate malignity, and bring the iron tears down Pluto's cheeks." That two men so obdurate, so implacable, so regardless of rule, decency, and moral sentiment, should be seen coming forward to calumniate a judge, who, for aught we know, acting with the approbation of government itself, liberated Mr. Arnot from imprisonment, is utterly unaccountable, and can hardly be explained by the worst principles of evil. Can human nature be so insatiable in cruelty, as not to be contented even with the undoing of a fellow creature? Will the exclusion of hope not satisfy them, if it be not shut out by the bars of a prison? What can glut their vengeance, if the resignation of distress is enviable in their eyes? or must distress be aggravated, for their delight, into the torture of despair?"
On being thus released by order of the Supreme Court, I applied to the Government for time to settle my affairs; and received an answer from the Chief Secretary, dated the 2d of October, to the following effect: "I am directed to state, that your letter of the 22d ultimo was duly submitted to the Right Hon. the Governor-General in council, and that his Lordship in council does not think fit to return any reply to it." I then resided quietly in Calcutta during that and the succeeding month. On the 8th of December I proceeded to Chandernagore, a French settlement at some distance up the river Hooghly, and took up my abode under the hospitable roof of a friend and countryman, Capt. Allan Cameron, in the hope that I might remain unmolested till I had completely arranged my affairs in India, and in the meantime a license to reside in Bengal, which had been promised me from England, might arrive, or the violent temper of the local government might subside.