Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
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Die Veneris, 19 Martii 1830.
I was asked, on the former Day, whether I originated the Measure of the Emancipation of the Slaves. Certainly I was strongly in favour of it, but I cannot presume to say that it originated with me; it originated with the People themselves; that is to say, with the Jurymen who were Proprietors of Slaves. The only Influence I had was from their knowing that they would stand higher in my Opinion if they did it, and that I thought it would be a popular Measure.
The Tenures of Land in the Island of Ceylon are variously modified; but I should think that one may distinctly classify them under Three general Heads, without using any technical Names. I will describe the Nature of them. The first are Lands that belong completely to the Sovereign of the Country, and remain under the Management of the Sovereign. The Second are Lands which were originally granted by the Sovereign of the Country to Individuals, upon the Condition that they were permanently to pay a certain Portion of the Produce to whoever might be Sovereign. As long as the Proprietors pay that Portion of the Produce they may alienate those Lands in any way they please, either by Sale during Life, or by Will after Death; or if no Will is made, the Lands descend by Inheritance, whoever the Proprietor may be, always paying that Proportion of the Produce which was the original Condition on which the Lands were granted. The Third are Lands which are granted by the Sovereign for the Time being, for the Performance of specific Services, to Headmen of different Districts, Chiefs of Districts, and others, for Services to be performed for the Sovereign of the Country. When the Person holding Lands under such a Tenure dies, they immediately revert to the Sovereign of the Country. They are attached to the Office; they can neither be mortgaged nor alienated. Besides what have been mentioned, the Government of Ceylon have large Tracts of Country that are wholly uncultivated. They must have been originally highly cultivated, but, in consequence of Change of Circumstances, have been left desert and uncultivated.
The Sovereign has them cultivated upon the most advantageous Terms that he can procure; sometimes receiving an Half or a Third, or less, of the Produce, according to the Condition he may make; but that is quite uncertain, and depends on the Circumstances of the Country.
They generally collect it through Renters. The Right of collecting the Government Share is sold to the highest Bidder. The Government Share of a whole District is put up for Sale to any Man who will purchase it, for One Year or Two Years, or whatever the Term may be.
As long as a Man holds the Office, so long he is entitled to the Lands which are a Remuneration for the Duties of his Office; if a Man misconducts himself, and is turned out of the Office, he loses his Right to the Lands.
That is difficult to say, for in some Places the Proprietors commute with Government for a Money Payment; Government receives its Share in Money. An Agreement may be made by Government with the Proprietors, for a Year, that they will pay, instead of a Tenth of the Produce, so much Money; that is sometimes done.
In one Part of the Island it descends in equal Shares to Male and Female, according to the Dutch Roman Law; in another Part of the Island according to the Hindoo Law. In the Northern Portion of the Island, containing Four or Five hundred thousand Inhabitants, and in the Eastern Portion of the Island, near Trincomalee, the Hindoo Law prevails. Among the Cingalese of the British Possessions, their Law has been so completely modified by the Portuguese and Dutch Conquests, that it is the Dutch Roman Law which prevails.
I think not; quite the contrary; because I think they have, from their Habits, much more Feeling in favour of the European Government than they have in favour of the Natives of the Country, and that they therefore are in that respect a Security to the European Government.
The Measure the Government would pursue is that which I took the Liberty of recommending to the Government in 1809, and which was carried into Effect by Lord Londonderry when I came to England in that Year; it is that of granting Lands in Perpetuity to any Persons who would take and cultivate them.
Yes, to both. The Government could have granted Lands in Perpetuity to Natives, but not to Europeans, before the Year 1809; for before that Period the very same Restriction that applied to Europeans holding Lands in Perpetuity in the Company's Possessions in India applied to them in those which had originally been the Company's Possession, but which had afterwards become the King's Possession, in Ceylon. That Restriction was taken off in 1809.
Not, according to my original Plan. Whether it has since been carried into Effect or not I cannot tell; but the Object which I had in view was to induce Europeans by every possible Encouragement to introduce their Capital and Skill into the Country, which I knew to be absolutely necessary for the Improvement of the Country and the People.
It will appear by the printed Proclamation, that that depended on the Agreement between Government and the Parties to the Grant; they were to be exempted from Taxes for a certain Period, and then to pay, I think, the Tenth of the Produce.
The Land is very fertile; but in consequence of its having been allowed to lie desert for a considerable Time, and in consequence of what is called Jungle or Bush Wood having grown upon it, and a Quantity of Water having settled in particular Parts of the Land, it is at present unhealthy.
The Manners, Habits, Religion and Customs of the Hindoo Inhabitants of the Northern Parts of the Island are very similar to the Habits, Manners, Customs and Religion of the Inhabitants of the Southern Peninsula of India.
Yes, they have certainly a Taste for them. There is a Remark which I must make, which is, that the Dutch and Portuguese took much more Pains to spread their Tastes among many of the People of Ceylon than the English have thought it necessary to take to spread theirs amongst the People in the rest of India.
Yes. The Chief and Puisne Judges of the Supreme Court are Judges of the High Court of Appeal in Ceylon. This answers to the Sudder Adawluts in Calcutta, Madras and Bombay, and is a Court of Appeal from all the Provincial Courts in Ceylon. The same System is administered in this Appellate Jurisdiction, called the High Court of Appeal, to Natives, it being administered by the same Men, as is administered in the Supreme Court to Europeans. The Judges are bound to administer the same System in both Courts.
I do not know. I met Sir Thomas Munro in 1817. He seemed to approve of the Jury System in Ceylon. On referring to a Letter (which is now published in his Life) from him, dated at Madras, to Lord Hastings, he distinctly states that he thinks the Natives are the fittest Persons to be Jurors in Criminal Cases, and that they ought to be so.
No Appeal lay in Criminal Cases. If the Jury found a Prisoner guilty, the Judge passed Sentence; but if it was a Case of Death, there was a Reference to the Governor before the Sentence was carried into Effect; and in a Case of Recommendation for Pardon, it was sent Home to the Secretary of State for the Colonies, to be laid before His Majesty.
The Way in which I first became acquainted locally with the Character of the Population of the Southern Peninsula of India, was, that in the Year 1808 I proceeded by Land from Cape Comorin, through the Provinces of Tinnivelly, Ramnad, Madura, Trichinopoly, Tanjore and Arcot, to Madras, and back again, for the express Purpose of having an Opportunity of observing the Character of the People, and the Nature of the Judicial Establishments instituted by The East India Company in those Provinces; and in order that I might, when I came to England, under a Commission from The Governor of Ceylon, in 1809, be able to state to the late Lord Londonderry what Conclusions I drew from the Comparison of the Two Establishments, that of the Madras and that of the Ceylon Government.
As I came Home myself, I presented no formal Report. I forget whether I wrote any private Letter to the Office. I had constant personal Communication with it, and it was in consequence of that Communication that the new Charter was made out. There were many Points upon which Lord Londonderry wished me to consult the present Lord President of Scotland, particularly on the Subject of the Majority and Number of the Jury, which is different in Ceylon from this Country. What passed was mostly in verbal Communication.
Much the same, I think; I am not aware of any particular Distinction. There is one thing I can say with reference both to the Mohamedan and Hindoo Population, that I have invariably found amongst the higher Classes of the Military Portion of the Mohamedan Population a higher Sense of Honour than I have found among the lower Classes of the Population of the Hindoos; but I have also found precisely the same Thing among the higher Classes of the Military Population of the Hindoos, such as the Rajepoots; I have found amongst them Men that I would have trusted with any thing. So I have among the higher Classes of the Mohamedans.
No, they were not, in Ceylon. My Reason for not applying them to Civil Cases at first was, because before I did so I wanted to see how the System worked in Criminal Cases; and because also, I wanted, in the first Instance, to avoid making the Duties of Jurymen burthensome on the People of the Country, 'till I had made them feel that it was an Honour to belong to the Class of Jurors; but, on coming Home in 1818, it was my Intention to recommend the Institution of Civil Juries and Grand Juries in Ceylon.
It was. I am quite sure that if I had required Unanimity, and had shut the Jurors up 'till they had come to an unanimous Determination, they would have had a perfect Dislike to the Institution; they would have supposed that the Court had some View, and wished to make them give an Opinion contrary to their own Opinion.
It is. I went down to Scotland, and communicated with the present Lord President, then Lord Justice Clerk, for Three Weeks or a Month, on this Point. My Opinion upon the Subject was confirmed by that Communication. When I came back to England, it was recommended that the Ceylon Jury should decide by a Majority, and that the Number of the Jury should depend upon local Circnmstances; that it should be either Five or Seven or Nine, or whatever Number might be thought advisable by the Judges of the Court. Upon this the then Attorney or Solicitor General, I am not sure which, objected to the Introduction of any Modification of our Form of Jury, thinking that as our Jury was a System that had been found to be the very best for Ages, it ought to be introduced as it was. I thought that it would have put an End to the Popularity of the whole Thing, if I introduced the System as it was in England. Lord Londonderry, therefore, in a Conversation with me as to what was to be done upon the Subject, said, that as in Scotland it was by Majority the Jury decide, that would be a very good Authority to make it the same in Ceylon; and Lord Londonderry accordingly agreed to that and to the Number of Thirteen, although not in accordance with the Opinion of The Attorney General.
In Ceylon the Public Prosecutor stands in the same Situation in which the Public Prosecutor, The Lord Advocate, stands in Scotland. The Prosecution is carried on on behalf of the Public. There is no Grand Jury. The Prosecutor, who is The Advocate Fiscal, states to the Court and the Jury the Circumstances of the Charge; he states it in English, it being translated into the Language of the Jury and the Prisoner. Of course he is bound to speak deliberately, and to state the Fact clearly. Having stated his Case, he calls his Witnesses to prove that Case; he examines those Witnesses in the first Instance, or what is called in Chief, by an Interpreter; the Interpretation being such, if the Jury does not understand the Language of the Witness, as to convey what he says to the Jury.
Constantly: they asked Questions and made Notes, and were very particular. When the Prosecutor had closed his Case, the Prisoner stated his Defence. It was translated to the Judge into English; and of course, if it was not delivered in the Language which the Jury understood, it was translated to the Jury. When the Prisoner had made his Defence, he called his Witnesses, who were examined by him, if he pleased; or, if he preferred it, by a Person, who, on my Recommendation, was appointed by Government to act as the Advocate for all Prisoners and Paupers. If the Prisoner thought his Case was safer in the Hands of this Public Officer, he made him examine his Witnesses. This Officer was intended more for a Protection for Prisoners than for any thing else.
Yes; and cross-examined by the Prosecutor. The whole Trial was carried on in such Languages as were understood by the Jury, by the Prisoner and by the Judge; the Judge taking Notes of the Case, and the Jury also taking short Notes. When the Prosecutor had finished examining his Witnesses, and the Prisoner had finished examining his, then the Judge read over his Notes to the Jury, the Jury correcting those Notes, if they thought the Judge had put down any thing that had been misinterpreted to him. By correcting, I of course do not mean to say that they had any Right actually to correct the Judge's Notes, but merely that if the Jury thought there had been any Misinterpretation to the Judge, they had a Right to tell the Judge so; and it was the Judge's Duty to ascertain whether his Notes were or were not correct. It was a great and salutary Check upon the Interpreters. I always wished the Jury particularly to see that the whole Interpretation was correct. When this was done, the Jury, if they had no Doubt upon the Subject, at once delivered their Verdict, by saying, that the Majority of them were of Opinion that the Prisoner was either guilty or not guilty. If they had any Doubt, they retired to an adjoining Room, and came back and gave their Opinion in Court.
Yes. All that he did was merely to read over his Notes, and remark upon the Evidence, but not endeavour to enforce any Opinion of his own upon their Minds. If there was any Question of Law he wished to point out, he did so.
I thought that the Danger of a false or mistaken Interpretation was of course removed by Thirteen Natives sitting with me in Court, who were most likely to be able to tell me if the Notes of Evidence I read over to them were correct as to the Evidence given by the Native Witnesses.
As you have had a good deal of Practice in the Native Courts, how far do you concur in the Opinion distinctly given to Lord Hastings by Sir Thomas Munro, in the last Letter he wrote to him, that no European was competent to examine the Native Evidence?
That is expressing a more general Opinion upon this Subject than I should venture to do. I should certainly say, that, generally speaking, a Native was more competent than an European (if you can get the fair unbiassed Opinion of the Native) to give his Opinion upon a Point of Native Evidence. The great Difficulty is to get at the unbiassed Opinion of a Native. Of course an European who has been living with Natives many Years, generally speaking, must be competent to examine them and weigh their Evidence.
It is composed of The Governor, the Chief and Puisne Justice, who are the Two Judges of the Supreme Court, the Chief Secretary of Government, and the Head of the Revenue Department. The Chief Secretary of Government and the Head of the Revenue Department are Two of the Civil Servants of His Majesty in Ceylon.
I do not know. At this Moment I believe it is under Discussion. That has nothing to do with the Supreme Court. The Part of the Interior called Kandy is kept entirely distinct. What the System there at present is I am not aware.
I can speak to the whole of the Jurisdiction in the Maritime Part of the Island, and in the whole of the Territory which the British Government possessed before the Conquest of the Candian Territories. The Jurisdiction of the Supreme Court in Criminal Matters extends over every Part of the British Dominions that were British before the Conquest of the Candian Country. The Supreme Court administers that Jurisdiction partly at Sessions held at Colombo, and partly at Sessions held on Circuits made throughout the ancient British Territories on the Island.
I believe that Caste makes it more difficult to alter them than would otherwise be the Case. The Idea of Caste has been associated, for a long Time, in their Minds, with that of their Religion. I do not think that it was originally so. I believe, from what I have seen in the Books of the Buddists, that Caste in India was, at first, merely a Political Division, much the same as the Political Divisions of Society in Europe were in ancient Times; but that some artful Politician united the Idea of Caste with Religion, to make the Distinctions of Caste more permanent; and that the early Distinctions of Society in India, from being united with Religion, have been longer preserved than they were in Europe.
No, I think not. There is a Work lately published, which decidedly shews that this is not the Case; it is the Work of Mr. Rickards, a Man not speaking from Theory, but speaking from great personal Observation and Experience in India.
Sir Alexander Johnston then delivers in a Copy of a Memorandum, which, at the Request of the late Marquess of Londonderry, he had drawn up for his Lordship a short Time before his Death, in consequence of a Conversation which had passed between his Lordship and Sir Alexander, with respect to the Improvements which might be introduced into the System for administering Justice in India, and in consequence of his having asked Sir Alexander to put down upon Paper for him the Result of the different Observations which he had made upon that Subject during his Residence in Ceylon from 1802 to 1818, and during the Two Journeys which he had taken, the one in 1808, the other in 1816 and 1817, through the Southern Provinces of the Peninsula of India, for the Purpose of becoming locally acquainted with the People and the Country, and comparing the System of administering Justice in those Provinces with that which prevailed throughout the British Possessions on the Island of Ceylon.
The Judges to make frequent Criminal Circuits throughout those Territories, having Native Grand and Petty Juries for the Trial of Native Offenders, at each Place where they hold their Criminal Sessions.
The Sudder Adawlut at Madras to consist of the Judges of the Supreme Court, and a certain Number, as at present, of the Company's senior Civil Servants. (fn. 1)
That a Hindoo Code, for the Use of all the Hindoos under the Madras Government, be forthwith drawn up, in communication with the best informed Hindoos in each of the Provinces under the Madras Government. (fn. 2)
That a Regulation be framed specifying the Nature of the different Acts which are to be deemed Criminal Offences, and the Nature of the Punishment which is to be attached to each of those Acts. (fn. 3)
That the Hindoo and Mohamedan Code, and this last-mentioned Regulation, be translated into all the different Languages which prevail throughout all the British Territories under the Madras Government, and that they be published throughout those Territories.
That all the respectable Natives of the Country be admitted to act as frequently as possible, as Grand and Petty Jurymen, as Judges and as Magistrates, under the Superintendence and Controul of the Supreme and Company's Courts.
That the Proceedings in the Company's Courts be carried on in the most usual Language of the People of the Country in which they are established; that Writing be dispensed with as much as possible in those Proceedings; and that all Suits be decided as near as possible to the Homes of the Parties and Witnesses who are concerned in them.
That a Code be made of all the different Maritime Customs and Laws, of all the different Classes of Natives of India who trade with any Part of the Coasts of the Company's Territories in India, and that it be translated into all the different Languages which are in general Use amongst those People, and that it be made as public as possible amongst them. (fn. 4)
That the Court in England for hearing India Appeals be composed of the Judges who retire upon Pensions from the Supreme Courts in India, Ceylon, the Isle of France and the Cape of Good Hope, and of some of the Company's retired Civil Servants who have been Judges of the Courts of Sudder Adawluts in India; and that it be perfectly understood that the Judges are to receive no other Remuneration but their Pensions for belonging to this Court. (fn. 5)
That they deliver into both Houses of Parliament, at the Commencement of each Session, a Statement of the Number of Cases which have come before them; the Number which they have decided; and the Number, if any, that are in arrear.
That they also deliver into both Houses of Parliament, once every Year, a Report of the State of the System for administering Justice in India; specifying what Defects they have observed in that System, and what Improvements they propose.
That the Judges of all the different Supreme Courts in India be appointed as the Judges in England are appointed, not during Pleasure, but during good Conduct; and that they be removable from their Offices only by Addresses from both Houses of Parliament to The King.