AND THE LORD SAID UNTO— 35
The language of this charter thus becomes as intelligible as the principle on which it rests. The native subject shall not have his contract interpreted by a foreign law; but it equally imports him, whether contending with another native, or with a British-born subject, to be secured from that invasion of individual liberty, without which no justice of any kind can be obtained. The distinction is manifest between the ordinary objects of civil and criminal justice, and the high prerogatives vested in the Crown for the immediate protection of all its subjects. The powers which belong to His Majesty by virtue of his royal station, to be exercised by him through his Judges in the Court of King’s Bench, exist in conquered countries as well as those to which he succeeded when he came to the Crown. They cannot be taken from him, but by his own concurrence with the two other branches of the Legislature, in words which can leave no doubt of the intention to make so great a sacrifies.
In these letters patent there is also this proviso [clause 45]: “That the Supreme Court shall not be competent to try any indictment or information against the Governor-General and others who are specified, except in particular cases.” Now the power of granting a criminal information is not involved in that of trying actions and indictments; yet the proviso clearly implies, that in all cases excluded from it under the circumstances there directed, the Supreme Court might hear a motion for a criminal information.
It was only in the year 1827 (R. V. Wright, 1827, Morley’s Dig. Vol. I. p. 120) that Sir Charles Grey had occasion to give a judgement, which proves the opinion of that learned Chief Justice on the subject. A motion was made for a criminal information against a variety of persons who had obstructed a Sheriff ’s officer in executing the process of the court. Some of the parties complained of were native subjects not open to the ordinary jurisdiction; no indictment could have been preferred against them. But the others were British subjects, or those employed by British subjects, who clearly would not fall within the exception. Sir Charles Grey expressly recognizes the distinction which we have drawn. “A question had been made, whether the Court possessed authority to grant a criminal information against Mendy Ally Khan, as it had been said that he was not subject to this jurisdiction, as he was not an inhabitant. In his own opinion, however (the opinion of the Chief Justice of Bengal), the question