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he could not press this assertion in the direct letter of the law. But he had his reasons for his attitude. He ended by stating his inflexible determination not to suffer the indignity of allowing Nuncoomer to appear as his accuser before the Council. « The Chief of this Administration, your superior gentleman, appointed by the Legislature itself, shall I sit at this Board to be arraigned in the presence of a wretch whom you all know to be one of the basest of mankind? Shall I sit to hear men collected from the dregs of the people give evidence at his dictation against my character and conduct? I will not. You may, if you please, form yourselves into a committee for the investigation of these matters in any manner which you may think proper, but I repeat that I will not meet Nuncoomar at this Board, nor suffer Nuncoomar to be examined at the Board, nor have you a right to it, nor can it serve any other
purpose than that of vilifying and insulting me.” A dramatic moment. It would have been interesting to have observed it. In spite of Hastings' protest, the majority carried the resolution that Nuncoomar be called before the Board. Hastings declared the Council dissolved, and protested that anything done in his absence would be unwarranted and illegal. Barwell accompanied him as he left the room. The partisans now had what they desired. Clavering was sent to the Chair by his colleagues, and Nuncoomar was called to state his grievances.
But one must hark back a few years. In 1972 a suit had been instituted against Nuncoomar for more than a lac of rupees, said to have been due to the estate of a banker. Brought before the court, it was recommended that the case be arbitrated. Nuncoomar at first refused to accede to this proposition. However, he finally consented; but a dispute arose as to the arbitration. The case hung fire for some six years, when the whole legal and judicial state of affairs was changed by the arrival at Calcutta of the Supreme Court of Judicature created by statute. Owing to some technical difficulties it was found impossible to get the original papers, without which the forgery could not be established. But finally a Mr. Farrar, who had been admitted as an advocate of the Supreme Court, moved the Court for the papers in the forgery case. This motion was made six weeks before Suncoomar's accusation of Hastings, produced before the Council by Francis. The main allegation of the accusers of Hastings was to the effect that Hastings having now been accused by Nuncoomar before the Council of taking bribes and other peculation, suborned the prosecution of his accuser on a charge of forgery, the transaction out of which the charge arose having taken place six
years before; that Nuncoomar was under this accusation brought to trial before Sir Elijah Impey, the Chief Justice, who was described as in collusion with the Governor General, arraigned before an English jury, found guilty, sentenced to death and hanged — all this being brought about by Warren Hastings to silence a dangerous enemy. Sir James Stephen, a Judge of the English High Court of Justice, looked into the history of this case many years ago, and he has proved conclusively in his Story of Nuncoomar that Hastings was innocent of the conduct attributed to him. It was proved beyond a doubt that the proceedings which led to the arrest and trial of Nuncoomar were, as stated above, commenced six weeks before he had made any charge against Hastings, who could have had, therefore, no interest in the matter. There can be no doubt that Hastings' solemn declaration on oath before the Supreme Court that he had neither advised nor encouraged the prosecution of Nuncoomar, and that it would have been unbecoming the First Magistrate in the Settlement to have employed his influence either to promote or dissuade it, is the simple truth. Macaulay has said that none but “idiots and biographers” could accept his view of the affair. But it looks now as though the “idiots and biographers” were right, and that the brilliant essayist who would not stoop to verify, was wrong. Macaulay overlooked another important fact. He declares that the trial of Nun. coomar was before Impey and a jury composed of Englishmen. This statement is in itself sufficient proof that he had never read the report of the trial. As a matter of fact Nuncoomar was tried before a Bench of four judges, and the jury was composed of European inhabitants of Calcutta — not all English, some of whom had been resident therein, and some born there. A verdict of guilty was finally returned against Nuncoomar, and he was sentenced to death. The author of the vindication frankly recognizes that the sentence of death was too severe. The assertion is that when Nuncoomar mounted the scaffold he well deserved his fate, considering the meanness and criminality of the last forty years of his life. But English justice does not recognize the idea that a man should be hanged because his character and history may show that he deserves it. He can be hanged for nothing but for the crime for which he has been convicted. Though Nuncoomar's trial was fair, the verdict just upon the facts proved, and the sentence legal under the statute, it cannot be denied that the enforcement of a capital sentence under a statute passed to apply to England in accordance with English views, on a native of Bengal, was excessive. After sentence there should have
been a respite to ascertain the pleasure of the Crown. But Sir Elijah Impey, an ordinary English lawyer with no wide views, insisted on the strict letter of the law.
Speaking generally of Warren Hastings career in India, the author of the vindication claims to have written with careful candor, and with no other object than that of stating the real facts. He believes that all the real facts will stand the test of impartial inquiry. He submits that in no case can any proof of any crime be established against his client, but he recognizes that human nature is not absent from the history of Warren Hastings, that he is the last to suppose that in all of Hastings' transactions there was no error, no fault in design, no imperfection as to detail. Shortcomings there were, frailty perhaps, but these do not suggest crime unless one is to expel moral justice from a consideration of public acts. It is this want of moral justice which condemns Macaulay for the repeated assumptions of guilt in his estimate of Warren Hastings' character and services. The vindication deserves a popular audience, for it gathers into readable compass the three folio volumes of G. W. Forrest, in which are contained the daily minutes of the Council during Hastings' administration, and on which our new knowledge of Warren Hastings is largely based.
Principi di Diritto Internazionale: Parte Prima - Diritto internazionale
Pubblico. Giulio Diena. Naples: Luigi Pierro, Publisher. 1908. Price L. 6.
This very admirable hand-book of the Principles of Public International Law is one of a series of Manuals on legal and sociological subjects issued by the same publisher. Professor Diena proposes in a later volume to cover the field of Private International Law, emphatically asserting, however, that this course, adopted from motives of convenience, in no way signifies acquiescence in the theory that denies the intimate relationship of the two branches of the subject.
The present volume after dealing with the conception and the fundamental notions of the science, and briefly sketching its historical development, takes up in order its subjects, viz: the states and their rights; its objects — territory, sea and rivers, as well as individuals in their relations to penal and administrative international law; its instruments, including the executive authority of the state, diplomatic and consular officers; the acts of the state, out of which diplomatic obligations and
responsibilities arise; and finally, procedure and methods in peace and war.
The arrangement of the matter is logical, the treatment of the topics is, as a rule, clarity itself. The work is specifically designed as a handbook, and the citation of cases and of historical precedents is properly confined within narrow limits, and employed rather as a means of making clear and impressing the meaning of the principles stated than for the purpose of furnishing exhaustive references and authorities. Professor Diena does not fail to indicate the existence of differing opinions in cases where the rules to be deduced from the facts are still in dispute, but from the necessity of the case controverted matters are argued and disposed of in a somewhat summary way.
The author openly declares himself at the outset an eclectic, unwilling either to base his science exclusively on purely philosophical and theoretical principles, or to accept the limitations of the positive method which claims to confine itself to the verification of existing facts and established rules. The rules that can be deduced from actual practice are to be checked by scientific principle, completed where insufficient, corrected where imperfect or antiquated, always preserving the distinction between positive and established law and principles founded on a rational or scientific basis. It may fairly be said that he preserves the balance, and errs neither in the direction of a loose idealism nor of mere adherence to precedent.
His view of the basis of International Law is fundamentally that of a community of nations possessed of common customs and ideals. It is the joint and reciprocal will of the several states that raises principles of natural right or of legal science to the status of rules of international law. It is in fact, though not in the crude sense, a theory of social compact.
In this view of it International Law is above all a progressive science, and an index of the advance of civilization. There are many instances where it becomes a duty to criticise the practice hitherto adopted but which is at variance with the great principles openly professed or tacitly admitted by all. There are other cases where practice differs, where special interests have led one nation or another into questionable positions, and there is room to condemn or to approve. In all such cases we may trust to find Professor Diena moderate in his statements, but progressive and sane in his views.
There are questions raised and discussed which hardly lend themselves to the summary treatment possible, such for example, as the right of forcible annexation, or the right to a plebiscite on the part of the population of a territory about to be transferred. On the latter head particularly, the very forcible practical objections alleged do not satisfy the mind on the subject, because the moral argument (valid or not) against transferring men as if they were chattels from one allegiance to another, has not been radically discussed. And thus the whole outcome of these matters is left in something of a haze.
It is quite otherwise when the author comes to treat of more specific questions, as for example, the treatment of the inhabitants of a regiou occupied by the enemy's troops, or the Monroe Doctrine. On this last subject we are not surprised to find him taking a rather unsympathetic attitude. Originally, as a particular application of the doctrine of nonintervention, the rule laid down was fairly well justified; in its developments and extensions of recent years, it is, we are told, to be regarded as a mere rule of political conduct adopted by the United States, in no sense a rule of international law, and in some cases leading to action contrary to its best established principles.
In regard to political crimes for which extradition is usually refused, the author pronounces decidedly in favor of the elimination of anarchical crimes from the privileged class, and also of a rule by which the assassination of the head of a foreign state, or a member of his family, should not be regarded as political. It need not be said that there is much to be alleged in favor of both these suggestions and some practical difficulties to be met.
Perhaps one of the most suggestive chapters of the work is that on Administrative International Law, in which are detailed the manifold interests that have in one form or another come under the joint care of the civilized states. In this direction lies the hope of the future. Already in a treatise on International Law, the section devoted to the laws of war begins to shrink notably, and doubtless Professor Diena would join cordially in the wish that the place to which the subject is entitled may still grow less.
There is one serious criticism to make on the absence of a full index — which may possibly, however, be intended to appear in the succeeding volume.