The Cossijurah Case, 1779 to 1780

The proclamation. An order was issued to all landholders informing them that they were subject to the Court's jurisdiction only if they were servants of the Company or had subjected themselves by consent, and that if they did not fall within either class they were to pay no attention to the process of the Court. Impey complained that its terms were intentionally disrespectful to the Court and to the King, who was called "the English King" without any title, the object being to avoid conveying the notion that the King of England had any authority as King in Bengal.

Force, first round. The Zamindar, having a special direction to the same effect, ignored the Court's further process. His people beat off the sheriff and his officers when they tried to take him under a capias, a writ commanding the sheriff to take the defendant's body.

Force, second round. A writ of sequestration issued, to seize his property and so compel an appearance. The sheriff collected a force of fifty or sixty sailors and others who marched armed from Calcutta to Cossijurah, and, it was alleged by the Zamindar, executed it with great violence and with acts of disrespect towards his idol and his zenana.

Force, third round. The Governor-General and Council ordered Colonel Ahmuty, commanding troops at Midnapore, to march a force of sepoys against the sheriff's party and arrest them. He did so. Process against the officer commanding the troops, as for a contempt, was also prevented by military force.

The suit against the Government. The plaintiff then brought actions against Hastings and the other members of Council individually. They first entered appearances, but on seeing the terms of the plaint, which showed that they were sued for acts done in their public capacity, all except Barwell caused their counsel to declare in court that they withdrew their appearances and would not submit to any process the Court might issue against them.

The only casualty. The one person who actually suffered was Naylor, the Zamindar's attorney, required to answer interrogatories about his part in the matter and committed for contempt for refusing.

The correction: what the case was NOT about

Most textbooks say that the Council resisted because the Supreme Court had claimed jurisdiction over zamindars as such, as revenue collectors. Stephen, who read the record, says in terms that this is entirely incorrect.

The Court never held that zamindars as such were in the Company's employment and so subject to its jurisdiction. It uniformly held the reverse.

The evidence he gives is the Company's own. Bogle, reporting to the Council on 13 November 1778, a year before the Cossijurah suit, wrote that since the establishment of the Supreme Court no question had been agitated before it that could bring the rights of the zamindars into discussion; that many suits had indeed been commenced against them, but that they had always pleaded to the jurisdiction, and except where the cause happened to be managed by an unskilful attorney, their plea had always been sustained. They had been considered as landholders possessed of extensive territories paying a land tax to government, and this exception of the zamindars from the jurisdiction had done more than anything else to limit the embarrassment caused by the introduction of so new an institution.

A plea to the jurisdiction is a defence that the court has no authority to try the case at all, taken before any defence on the merits. Bogle's point is that zamindars had been making that plea for five years and winning.

So the dispute at Cossijurah was not about a rule of law the Court had laid down. It was about a single affidavit in a single case, asserting that this particular zamindar was employed in the collection of the revenues. The proper answer to a false affidavit is to appear and plead to the jurisdiction, exactly as other zamindars had been doing successfully. What the Advocate-General advised, and what the Council ordered, was that he should not appear at all.

Why the Council really acted

Stephen sets out the reasons, and they are more honest than the legal argument.

The Council hated the Court, and had reasons that were natural and intelligible. It represented an authority the Company's servants practically repudiated. It represented English law, which they disliked both for its defects, then great, and for its merits. They thought it a grievance, and it was one, that Bahadur Beg should be brought from Patna to Calcutta to plead in a purely English court. They probably felt it a much greater grievance that the ijaradars and zamindars should be interfered with when, in order to pay their revenue punctually, they squeezed their ryots in ways an English lawyer would call oppressive.

And they were not sure they were right. Stephen's judgment on this is the sentence to quote. If they had been sure, they would have taken the straightforward legal course of getting a direct decision from the Court on the questions that concerned them, and testing it by appeal to the King in Council. They could easily have done so and had five years, from 1775 to 1780, in which to do it. Impey suggested it repeatedly. From that test they invariably shrank. Having the military force in their hands, and public feeling with them, they preferred to use that force rather than to appeal to the common superior of both Court and Council.

A worked example

Suppose you act for the Zamindar of Cossijurah in September 1779. What should you have advised?

1. Appear, and take a plea to the jurisdiction. The affidavit says your client is employed in the collection of the revenues; he says he is a landholder paying a land tax. That is a question of fact and it is the very question on which zamindars had been succeeding since 1775.
2. If the plea fails, defend on the merits, and if you lose, appeal to the King in Council, which lies from the Supreme Court.
3. Do not stay away. A defendant who ignores process invites a capias and then a sequestration, which is exactly what happened, and loses the only forum in which the jurisdictional point can be decided in his favour.

That advice was available, obvious, and not taken, because the Government preferred a confrontation to a decision. The result was armed men from Calcutta meeting sepoys from Midnapore in a district of Bengal, and a Governor-General declaring through counsel that he would not obey the King's court.

What beginners get wrong

"The Supreme Court claimed jurisdiction over all zamindars." It did not, and it consistently sustained their pleas to the jurisdiction. This is the error that the record contradicts most directly.

"The Court decided the Cossijurah case." There was no decision on the merits. The case is famous for what happened outside the courtroom.

"The Government had no legal remedy." It had one and refused to use it for five years: a decision on the jurisdictional question and an appeal to the King in Council.

"Hastings was arrested." Nobody in the Government was arrested. Section 17 forbade the arrest of their persons, and in any case they withdrew their appearances. The only person committed was Naylor, the Zamindar's attorney, for contempt in refusing to answer interrogatories.

Limits and criticism

The case is the crisis of Module I, and the right way to describe it is as a breakdown of the constitution rather than a dispute about the law.

Two authorities existed in Bengal, both deriving from the Crown, one a court and one a government, and there was no institution in India competent to decide between them. The Act had created that situation and had provided no machinery for resolving it. When the disagreement became sharp enough, the body with the soldiers won, and told the whole of Bengal outside Calcutta that the King's court could be ignored.

That is intolerable in any system, whichever side was right about section 14, and it is why Parliament had to intervene. The Settlement Act of 1781 did three things directly traceable to this case: it took the Governor-General and Council out of the Court's jurisdiction for acts done in their public capacity, it took revenue matters out of the Court altogether, and it indemnified the Governor-General, the Council, the Advocate-General and everybody acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that in the hostilities between Court and Council "many things have been done not justifiable by the strict rule of the law".

An Act of Parliament which has to indemnify a government for disobeying a court is the clearest possible admission that the system had failed.

Quick revision

• 13 August 1779: Kashinath Babu sues the Zamindar of Cossijurah in the Supreme Court on an affidavit that he was employed in the collection of the revenues (s.14).
• Advocate-General Sir John Day advises that the Zamindar should not appear or plead; a general proclamation tells landholders to ignore the Court's process unless they are the Company's servants or have consented.
• The Zamindar's people beat off the sheriff under a capias; a writ of sequestration issues; the sheriff marches with fifty or sixty armed men.
• The Council sends Colonel Ahmuty with sepoys, who arrest the sheriff's party.
• The plaintiff sues Hastings and the Council personally; all but Barwell withdraw their appearances and refuse to submit to process.
• Only Naylor, the Zamindar's attorney, suffers: committed for contempt.
• The Court never held that zamindars as such were subject to it: Bogle's report of 13 November 1778 records that their pleas to the jurisdiction had always been sustained.
• The Council never appealed to the King in Council, though five years and repeated suggestions were available.

Test yourself

1. What was the jurisdictional foundation of the suit, and why was it contestable? The affidavit filed on 13 August 1779 stating that the Zamindar was employed in the collection of the revenues, which brought him within section 14's class of persons employed by or in the service of the Company. It was contestable because a zamindar was ordinarily treated as a landholder paying a land tax, not as a servant, and pleas to the jurisdiction on that footing had regularly succeeded.

2. State the correction this case requires to the usual textbook account. That the Supreme Court had claimed jurisdiction over zamindars as such. It had not; it uniformly held the reverse, and Bogle's report to the Council of 13 November 1778 records that zamindars' pleas to the jurisdiction had always been sustained except where the cause was managed by an unskilful attorney.

3. What was the Council's real objection, on Stephen's account? Not a settled view that the Court was wrong in law, but dislike of a court representing an authority they repudiated and English law they distrusted, and unwillingness to have their revenue administration interfered with. Stephen's proof is that they never took the available legal course of obtaining a decision and appealing to the King in Council, though Impey repeatedly suggested it.

4. What happened when the plaintiff sued the members of Council personally? They entered appearances, and on seeing that they were sued for acts done in their public capacity all except Barwell had their counsel declare that they withdrew their appearances and would not submit to any process of the Court.

5. How did Parliament respond to what happened here? By the Settlement Act of 1781, which took the Governor-General and Council out of the Court's jurisdiction for public acts, excluded revenue matters, and indemnified the Governor-General, the Council, the Advocate-General and all acting under their orders for their resistance to the Court's process between 1 January 1779 and 1 January 1780, reciting that many things had been done not justifiable by the strict rule of the law.