Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London, [n.d.].
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Die Martis, 9 Martii 1830.
The Lord President in the Chair.
Sir Edward Hyde East Baronet, a Member of the House of Commons, attending, is called in, and examined as follows:
What Judicial Situation did you fill in India?
I was Chief Justice of the Supreme Court in Calcutta. I went out in the Year 1813; I arrived there some Time in November, I think the 8th.
How many Years did you remain Chief Justice?
I left India of course, having resigned my Situation, in the Beginning of the Year 1822; I think in January 1822.
Have the goodness to describe the Constitution of the Court over which you presided?
It consists of Three Judges. Originally it consisted of Four, but the Office of One of the Judges was suppressed, to form a Fund for the Payment of the Pensions of the Judges who retired.
About what Time did that Alteration take place?
Before my Time. There are various subordinate Officers belonging to the Court; there is a Registrar, a Master in Equity, and several other subordinate Officers; those are the Two principal Officers.
Is the Number of Advocates who are admitted to plead before the Court limited or unlimited?
The Number of Advocates depends entirely upon the Number the Court think proper to call. The Power of calling to the Bar rests with the Court at Calcutta. When I arrived there, I found but Three Advocates, the Advocate General of the Company, and another Gentleman who was the Second Counsel of the Company, and there was a Third Barrister there, Mr. Stewart, who was in an ill State of Health; and very shortly after I arrived he was obliged to go to Sea for some Time, in order to restore his Health.
At the Time he went to Sea, there was no Advocate before the Court but the Two Advocates of the Company?
Who then conducted the Causes in which the Company was a Party?
For a Time, of course, there was nobody. If there had been any Cause, which I am not aware that there was at that Time, in which the Company were concerned, there would have been no Advocate at all during Mr. Stewart's Absence; and in consequence of that I wrote a Letter to Lord Buckinghamshire, who was at the Head of the Board of Controul, informing him of that State of Things. My Son had been called to the Bar before I went, and was permitted to go out with me; but as I understood that, although it was not mentioned officially to me, indeed there was no such Understanding on the Part of the Chairman or Deputy Chairman of The East India Company with whom I had personal Communication, but as I understood there were some of the Directors that thought it was not proper that the Son of the Chief Justice should practise at the Bar, I had some Communication with Lord Buckinghamshire upon the Subject; and I told him that, under those Circumstances, (not knowing at that Time, before I went out, what the State of the Bar was,) I should certainly not call my Son to the Bar without further Communication from his Lordship. But, in looking out the Papers I have in my Hand upon the Judicial State of India, after receiving the Notice on Saturday Morning last that your Lordships desired to examine me, I happened to lay my Hands upon the Letters which I had written to Lord Buckinghamshire upon that Occasion, and the Answers ( (fn. 1) ) which I received from him; and perhaps a Reference to these will be a more satisfactory and certain Method of communicating what passed than mere general Recollection. I wrote to the Board of Controul, under Date of December 9, 1813, stating, that I thought it proper to mention to his Lordship, as Minister of the Crown for his Department, the State of the Bar upon my Arrival at Calcutta; that there were then only Three Advocates, Two of whom, the Advocate General and another Gentleman, were the Standing Counsel for the Company, and a third was in a precarious State of Health, which obliged him to retire for the then Session to get Change of Air at Sea; that in this State of Things I received the most urgent Solicitations, both from the Bar and from the Bench, to permit my Son to practise as a Barrister, and I could only prevent the other Judges from calling him, even against my Concurrence, by assuring them that I should consider my own Honour wounded by it, until I understood from the Chairman of the Company that the Objection started by some of the Directors to that Measure was withdrawn, or until the President of the Board of Controul gave his Fiat for my Assent; that I should have stated more upon the Subject if I had not felt myself individually implicated in the Discussion; but that I should not on that Account shrink from the Duty which I owed to His Majesty, and to the whole Profession of which I had the Honour to be a Member.
Will you now state what was done in consequence of that Representation?
I received from Lord Buckinghamshire a Letter, dated India Board, June 7, 1814, stating, that he had received my Letter of the 9th of December 1813, and had immediately sent an Extract from that Part of it which immediately related to my Son to the Chairman of the Court of Directors; but as he was not informed whether he had written to me or not on the Subject, he, Lord Buckinghamshire, could have no hesitation in stating to me his Opinion, that under the Circumstances I have mentioned, and which indeed had been confirmed to him by Sir Henry Russell, I ought not any longer to resist the Solicitation of the Bar and the Bench, with respect to my Son's practising as a Lawyer in the Supreme Court. I stated, in answer to that dated the 20th of December 1814, that in consequence of his Lordship's Letter, the other Judges to whom I had communicated it had entirely concurred in it, and signifying their Intention of calling him at the Meeting of the Court in the next Term; and that the same Necessity indeed still existed for a further Addition to the Bar; for although we had permitted Mr. Lewin, who had before held the Office of Master of the Court, to resume his Practice, after he had resigned his Office and Mr. Stewart had been appointed to it, and although we had also called another Gentlemen who had practised at the Bar at Madras, and had left it for the Purpose, yet, as Mr. Lewin was about to depart for Europe, the Number would be again reduced to Three, under the Circumstances I have before mentioned.
In consequence of that subsequent Representation, was any further Addition made to the Bar?
In consequence of that, and of the Feeling which the Judges entertained, that the Bar ought to be more numerous, we did from Time to Time, as Opportunity occurred of acquiring Barristers, call various Gentlemen; and before I left the Court, I think there were either Eight or Nine Barristers practising in it.
Is the Committee to understand that Eight or Nine was the largest Number of Advocates at any Time permitted to practise during the Time you presided over the Court?
It was I believe the largest Number; but the Number was continually increasing during my Time. As we were able to get Accessions, no Barrister with a proper Certificate was rejected; but there was one Gentleman who was admitted in the course of that Time, who was not admitted so soon as he applied, because he had come out from England without the Certificate which the Court before my Time required before they admitted any Gentleman to the Bar; that is, a Certificate from Two of the Judges in England, testifying their Knowledge or Belief of his Integrity and Ability, without which we could not admit him. This Gentleman coming out at first without that Certificate, we declined calling him then; but he obtained his Certificate afterwards, and then we called him.
Do you conceive, from your Experience of the Business of the Court, that the Number you have now mentioned is fully adequate to meet the Business and the Demands of individual Suitors?
The Business of the Court was increasing from Time to Time, during all the Time that I remained. I do not know whether the present Amount of Business requires more or not; but I see no Reason why any Gentleman at the Bar, obtaining the Certificate I have mentioned, of his Integrity and Ability, from Two of the Judges of England, should not be permitted to go out and practise at the Bar. If the Bar gets overstocked by those Means, it will of course stop the going out of more, when any Gentlemen who are desirous of going out find that it is not likely to answer for them, at least for some Period of Time.
The Committee is to understand, that during the Time you presided over the Court the Business of the Court was constantly progressive?
That is more than I can charge my Memory with directly stating; but it had very much increased during the Time I was there. I think I have seen lately some Returns of that kind, and though I did not pay very minute Attention to them, not then having my Attention called to the Subject, I think it appeared, that though it did not regularly from Year to Year progress, it was generally progressive, upon the whole.
The Idea upon your Mind was, it was likely to increase still further?
Is the Number of Attornies of the Court limited, and what are the Circumstances of that Limitation?
There was formerly, and in my Time, a Limitation of the Number of Attornies, and the Number was, I think, extended more than once while I remained at Calcutta; but whether there is now any precise Limit to it or not, is more than I can say; but the Number of Attornies was much increased while I remained there, and I believe it has been still more increased since I came away.
Do you remember the Number to which it was formerly limited?
I think the first Limitation I heard of was of the Number of Twelve, and then it got to Four or Five or Six more, and then to Twenty. It went on as the Business of the Court was increasing; but there were certainly several of the Attornies who were not in good Business; they had all of them a little Business, but the principal Part of the Business lay with some Four or Five or Six.
Did the Increase in each Instance take place under the Authority of the Court?
Yes, certainly; it was the only Authority.
Are those Attornies exclusively Europeans?
Originally they were exclusively Europeans, but while I was there there were One or Two or Three Half-caste Persons let in, who had served their regular Apprenticeship to Attornies under Articles in a regular Manner, and were Persons who conducted themselves very well; and we thought that under those Circumstances they had fair Claims to be let in to fill those Situations.
There were no Native Attornies who were not Half-castes?
No, certainly no Hindoo or Mussulman; nor do I recollect any Natives, except Half-caste, who had served their Time under regular Articles.
The Court did not consider the Circumstance of being a Native of any Description as a Bar to a Person being admitted to practise as an Attorney, provided he was in other respects duly qualified?
Certainly not, while I was there; that is, after we had come to the Resolution I have mentioned.
Did that Portion of the Attornies who were of the Half-caste Description generally conduct themselves, while they fell under your Observation, with Propriety and Integrity?
With entire Propriety and Integrity, so far as I saw.
Have the goodness to state what is the Jurisdiction of the Court over which you presided?
That is a very wide Question, and therefore I must give a very general Answer to it. After I had been there about Two Years, I prepared a Set of Papers representing the General Judicial State of the Supreme Court, and, as far as I had obtained Information, of the Provincial Courts of the Country, which I sent Home, intended for Lord Buckinghamshire, who was President of the Board of Controul. Unfortunately, he died before the Papers reached Home, but the Papers got to the Board of Controul, and have remained there. Those Papers enter very fully into the Statement which comprises much of the Question now put to me; but I can give a general Answer to the Question. The Criminal Jurisdiction of the Court, within the Limits of Calcutta, described by the Mahratta Ditch, is general over all the Persons living within that local Ambit. The Civil Jurisdiction is also co-extensive over all Persons within the local Ambit; but with this Reservation in respect of the Native Population, that the Laws of Inheritance, Succession, and Contract are reserved to the Mussulmans and to the Gentoos, which is the Expression made use of, by which was understood generally the Hindoos, and therefore the general Law of England, in respect to those particular Subjects, did not attach upon them; but all the rest of the Civil Laws of England, with the Distinction to which I shall presently advert, attached upon them that did not touch their Inheritance, Succession, or Contracts, even within the local Ambit of Calcutta. The entire Common Law of England, so far as it was applicable to them, was transferred with the first Charter that was granted, in the 13th of George the First; but the Statute Law of England was only supposed to be transferred by the Charter up to that Period, but not subsequently, unless by special Acts of Parliament affecting India.
You mean that the Laws of Inheritance, Succession, and Contract were administered to the Natives, within the Limits of Calcutta, by the Supreme Court, according to the best Knowledge you could obtain of their Laws?
Yes; of course, to obtain this Knowledge, we consulted the Pundits with respect to the Hindoo Law, and the Moolvies with respect to the Mussulman Law, whenever any Points of Controversy arose upon those respective Laws; and we had also the Assistance of many learned Works written upon the Hindoo Law.
What was the Jurisdiction of the Court beyond the Limits of Calcutta?
The Jurisdiction of the Supreme Court within the Presidency of Bengal, and other Provinces annexed, extended over all Britishborn Subjects, and the lawful Descendants of British-born Subjects. By British-born Subjects I must be understood to mean, that which I understand the Acts of Parliament to mean, British European Subjects, as contradistinguished from Native Subjects; British European Subjects and their lawful Descendants. And further, our Jurisdiction extended to all Natives that were in the Service of the Company, and in Civil Cases to Natives contracting with British Subjects.
Is the Supreme Court also a Court of Appeal from any inferior Courts?
The Supreme Court was not, in its original Constitution, and for a long Period, an Appellate Court at all from the Provincial Courts of the Company; but there was an Act passed, I think, a very little while before I left India, giving Jurisdiction over British Subjects to the Provincial Magistrates and Courts, over Petty Trespasses, and small Matters of that kind, which it was thought burdensome to send to a vast Distance to be tried by the Supreme Court, which might probably put it out of the Power of Natives in an inferior Situation to sue those British Subjects at all; and in those Instances, or some of them, there was an Appeal given, on account of the Parties being British Subjects, to the Supreme Court; and we were required to make Regulations for the conducting of those Appeals, which were either actually drawn out or in progress about the Time of my Departure; but those were in small Matters, on account of the heavy Expence to be incurred in going Hundreds of Miles for Redress in case of petty Offences.
No considerable Portion of the Time of the Supreme Court is occupied in trying Cases of Appeal?
While I was there, there was no Portion at all. Whether that new Power of Appeal has produced the Effect of bringing Appeals to the Court, I am not informed.
Have you Reason to think that that Portion of the Natives whose Interests were brought under the legal Administration of the Supreme Court were satisfied with the Law so administered?
I have every Reason to believe that they were perfectly satisfied when I was coming away; indeed they told me so, both Mussulmans and Hindoos. The Jurisdiction of the Court was exercised, especially on the Equity Side, very frequently over considerable Property belonging to the Natives that was locally situated out of the Limit of Calcutta, on account of the Residence in Calcutta of the Native Defendants who were sued; so that when a Hindoo of large landed Property had a Residence in Calcutta, which gave us a Jurisdiction over his Person, although his Property was out of the Limits, yet Bills in Equity were on that Account filed against him in the Supreme Court, which did in fact bring under the Judgment of the Court a very considerable Mass of Property belonging to Persons of that Description living in Calcutta, though the Property itself was beyond the Limits; and I have every Reason to believe that the Natives were perfectly satisfied with the Judgment of the Supreme Court upon all Matters of that Description that were brought before the Court, and as most, or nearly all, indeed, of the Natives who had Property within the Neighbourhood of Calcutta had Houses in Calcutta, Property so situate bore an advanced Price beyond the Market Price of Landed Property in general in the Provinces, but might have been in part owing to the nearer Neighbourhood of the Capital, still that increased Value extended a long Way beyond the mere Range and Capability of raising Buildings and other Improvements in the Vicinity of the Capital.
You have no Reason to think that the Natives have any Aversion or Disgust with the English Law, as being English?
I have every Reason to believe, from personal Communications made to myself from many of the principal Hindoos in Calcutta, that they considered it a very great Advantage to them to have both their Persons and Property under the Judgment of the Supreme Court, reserving their own Laws to be administered in the Instances before mentioned.
Does the same Observation extend to Mohamedans as well as Hindoos?
I believe that it does; but the Mohamedans, except some few Persons of very high Rank, are not generally in possession of much Wealth, like the Hindoos, and have comparatively but small Landed Possessions compared with the Hindoos, and therefore we had much fewer Causes respecting that Class of the Population than we had as to the other.
Do you suppose the same favourable Feeling towards the English Law would prevail among the Natives, supposing its Authority to be extended in the Country beyond the Limits you have described?
I am perfectly persuaded that the Native Population do entertain the Opinion, that being placed under the Jurisdiction of the Supreme Court would be advantageous to them.
Do you state that from Opinion merely, or from actual Communication with any Natives not now under the Authority of the British Law?
I state that from personal Communication with many Natives, but of course they were Natives that I was in the habit of seeing in Calcutta from Time to Time. I have only occasionally seen Natives from the Upper Provinces, and have had very little of this sort of Communication with them; but the generality of Persons with whom I have had much Communication of that kind were of necessity Persons either living within Calcutta or within the near Neighbourhood of it.
Have you in any Instance found that the possible Extension of the English Law among the Natives was a Subject of Apprehension with them?
Certainly not, provided their own particular Laws of Inheritance and Succession and Contract were preserved to them; I do not mean to say that they preferred our Laws of that Description to their own Laws, but the Administration of their Laws by a Court constituted as the Supreme Court was.
Reserved for them in the same Manner as they are within the Limits of the Calcutta Jurisdiction?
Were the Native Authorities, Pundits and others, to whom you had recourse for the Administration of Hindoo and Mohamedan Law, Persons regularly designated for that Purpose, or called upon occasionally as the Court might think fit?
There were certain official Pundits and Moolvies appointed expressly for the Court. In that Appointment the Court always consulted the general Opinions of the respective Portions of the Native Population, as to those who were best calculated in the Repute of their Class to give the best Advice to the Court on Questions of their Law; but it sometimes happened that, upon Questions of disputed Law, the Court was not entirely satisfied with the Opinions of those particular Pundits or Moolvies, and upon all Occasions of that kind we took the Opinions of others, the most celebrated Pundits and Moolvies we were able to resort to, in order to guide our Judgment upon the Matters in dispute. Persons of that Description, who were in Attendance in the Court of Sudder Dewanny Adawlut, which was likewise sitting in Calcutta for the Purposes of the Provincial Judicature, were always at hand, and we were always able to apply to them; if they all agreed upon the same Doctrine, we of course adopted it; if they differed, we then gave our Judgment upon what we thought was the best course to pursue in reference to the general Spirit of the respective Codes, and for the furtherance of Justice.
Can you state generally the average Duration of Suits before the Court?
When I arrived in Calcutta, I found no Arrear of Suits. There was nothing that was standing for Judgment, and every Cause, up to the Extent that the Parties themselves thought proper to bring it, was forwarded; and when I left it, I left it in the same Situation; every Cause, as far as the Court was concerned, was carried to the Extent the Parties thought proper to carry it, and there was no Cause standing for Judgment.
Are the Fees and other Expences of Proceedings regulated by the Court?
No; that is left to the same Feelings that prevail here. The Fees were considered as the quicquid honorarium, in the same Manner as at the English Bar.
Are the Expences, in point of fact, very considerable?
In point of fact, in Causes of any Weight, the Expences are exceedingly great.
Does any Mode occur to you in which they could be diminished?
There is no other Mode of doing it, except by exercising a very strict Discipline over the Taxation of Costs, which was exercised in many Instances when the Attention of the Court was called to it. Every Bill was taxed in the ordinary Course of Proceeding by the Master or other Officer of the Court, but still the Expences were undoubtedly very heavy, and we endeavoured on various Occasions to contract them as much as we could, but still we found them heavy; undoubtedly more so than was desirable.
Do you suppose that an extended Application of the Authority of English Law, supposing it was desirable, could be effected in the Country without an Increase of Expence attending the Rules under it?
That would depend upon the Extent to which the Reform of the present Judicial System was carried. If English Courts, similar to the Supreme Courts now existing, were to be established throughout India, I have no doubt it would tend to a very great Increase of Expence unavoidably. I think that would be most desirable, except on the Question of Expence; but I believe that a great deal may be done, without going to that Extent, at a very moderate, if any, Increase of Expence, but not so perfectly. Our legal Machinery is exceedingly excellent in its Kind, but is too dear. I have formerly written some Observations upon this and other Subjects connected with the Administration of Laws in India, which, if it is desired by the Committee, I will deliver in. The greater Part of those Observations were written after I had been upon the Bench about Two Years, during which Time I endeavoured, in every Way that was within my Reach, to obtain Information upon the Subject at large; they were then dispatched Home, but subsequently to that Time, and from Time to Time, as either I saw Reason to correct any Opinion I had before advanced, or obtained any fresh Information, I made Notes and Memoranda upon the original Papers which I had with me.
Sir Edward Hyde East is requested to deliver in these Papers.
You mentioned that the Supreme Court exercised Jurisdiction over Real Property beyond the Limits of Calcutta, through the Medium of Persons resident within Calcutta; was that in consequence of a Fiction of the Law or a positive Enactment?
It was in Equity Cases where the Person resided within our Jurisdiction, and therefore those Complainants who wished to sue him preferred suing him where he lived, because it brought their Cause for Judgment before the Supreme Court, instead of suing him where his Estate lay, within the Jurisdiction of the Mofussil Courts.
You were understood to say, that you imagined the Natives generally would be desirous of having the British Judicature extended over the rest of India?
That is my Belief.
Does that proceed from your Opinion that their Laws would be administered more consistently and strictly by the Integrity of British Judges, or from any Desire that there should be any Assimilation between their Laws and ours?
My Belief is, that they did not wish to have their Laws of Inheritance and Succession and Contract changed, but that they thought that the Courts which had been instituted by The King there; and filled with His Judges, would better administer Justice to them. I do not speak of the Judges personally; there were some most eminent Men in the Mofussil Courts; but I consider that the Natives preferred as Judges Persons whom they supposed to have been properly educated for the Purpose, and having the Assistance also which they themselves derived in their Causes from the British Bar. Those were the Inducements which made them prefer coming under that Judicature.
In the Case adverted to just now, you reached the Jurisdiction over the Property in consequence of the Jurisdiction over the Persons?
Yes; those Persons residing within the local Limits of the Jurisdiction of the Court. I ought to explain, that in all Cases in Equity the Jurisdiction is entirely over the Person, to compel him to do certain Acts which the Court of Equity thinks conscientiously he ought to do. The only Jurisdiction which does in effect reach the Property is through the Medium of the Person being subject to its Controul, as being resident within the Limits.
Do the Moolvies and Pundits, who attend the Supreme Court, receive any fixed Salary?
Yes; an annual fixed Salary.
Are those Salaries adequate to the Duties they perform?
They are adequate to their Condition in Society, I think. They were so, at least, when those Salaries were established.
By what Law are the Civil Rights of Half-caste Persons, residing without the Jurisdiction of Calcutta, defined in the Instances of Marriages or Successions?
Their Situation is in many respects very perilous. Some of them I know personally, Gentlemen educated in this Country; and yet if they reside out of the Jurisdiction of the Court, being many of them illegitimate, and who therefore could not be deemed to be British Subjects within the general Meaning of the Laws passed for India; the Difficulty was to know how to deal with them, for the Mofussil Courts only administered the Hindoo Law to Hindoos, and the Mussulman Law to Mussulmans. The Condition, therefore, of these Persons, who were Christians, and living and associating with British Subjects, and considering themselves as such, when living out of the Limits of the Supreme Court, was so extraordinary and so anomalous, that it was a Subject of very great Difficulty, and one of the Subjects which I have represented for serious Consideration in the first Instance, in the Papers before me.
Were not they considered in the Eye of the Law as Natives generally, and subject to the Native Jurisdiction?
Subject as Natives, no doubt, to the Jurisdiction within which they lived; they were Persons capable of holding Lands in India, which British Subjects were not. That was an Advantage to them; and when they have spoken of the peculiar Hardships of their Situation, I have advised them to wait with Patience 'till the whole Matter could be brought under the Consideration of the British Government, so that Care might be taken that if they were admitted at any Time to the full Privileges of British Subjects, they should still retain their Power of holding Lands in their own Country.
Were they defined to be Native Subjects by the positive Regulation of the Court of Directors?
No, not that I am aware of; but all through the Acts of Parliament for the Government and Regulation of Affairs in India. This Distinction is taken throughout between British Subjects and those whom we also consider Subjects of the Crown, but Native Subjects. It very frequently happens that even in the same Clause they are spoken of as Two different Classes of People. Contracts may be made between British Subjects and the Natives, taking the same Distinction throughout the Statutes, so that we were unable to put any other Construction upon the Term British Subjects than British-born Subjects with their lawful Descendants.
Were the People described as Natives, as contradistinguished from British Subjects, in the Regulations published by the Governor-General in Council?
There may have been some such Description in the Regulations, which I am not acquainted with; but in the Charter constituting and regulating the Jurisdiction of the Supreme Court in Calcutta, and the Statute leading the Charter, the general Terms are Mussulmans and Gentoos. The Term "Gentoos" was generally understood to mean the Hindoos, but the Term originally used was Gentoos. Whether that was intended to comprehend all other Descriptions of Asiatics who happened to be located within the British Bounds in India, is, perhaps, very difficult to be told at this Time of Day; and there is this Singularity in the Hindoo Law, that when any Asiatics, such as Sikhs, Parsees, Chinese, and so on, come and settle in India, they bring with them, as it is understood, their own Civil Laws, in many respects, such as of Marriage, Succession, &c. That is the general Spirit and Understanding of the Hindoo Law, so that all Questions of Marriage, which in most other Countries in the World is a Question of local Ceremony, and to be governed by the Law of the Country and Modes of Adoption, and various other Matters, are regulated by their own particular Customs, which they bring with them. It is a singular State of Things, arising, probably, from the Circumstance that India has been so frequently overrun by different Classes of Conquerors and Settlers. I suppose it was found to be a convenient Arrangement which the Hindoo Law adopted; but we were restrained from administering the Hindoo Law, except between Hindoo and Hindoo, which increased our Difficulty in these Questions. But there is another Circumstance that, perhaps, in mentioning the Jurisdiction, I should have added, that the Charter and its leading Statute provided that where there are Two Parties before the Court, under contrarient Laws, as in a Suit between a Mussulman and Hindoo, the Law of the Defendant shall prevail between them; therefore, that Difficulty was provided for partially in the first Instance.
Do the Half-castes follow the Religion of their Mothers?
Some of them no doubt have done so, from having been deserted by their Fathers in their Infancy; but the greater Part of them are certainly brought up as Christians. Those that we call Portuguese in India are often the Descendants of Persons of that Description; the greater Part of them are Roman Catholics; there are some Protestants among them, and I believe that Number is increasing latterly.
By what Law are they regulated?
Those that inhabit within the local Ambit of the Jurisdiction of the Supreme Court are governed entirely by the British Law, for we have only Power to administer either the British Law to British Subjects, or the Hindoo Law to Hindoos, or the Mussulman Law to Mussulmans; and that is one of the Difficulties we had to manage, that when there was any other Description of Persons before us (and there are many Chinese, as well as other Foreigners, settling in Calcutta), we could only administer the British Law to them; we could not administer Hindoo or Mussulman Law to them. Our Power of administering either of those Laws is according to the Class to which it is to be applied; the Hindoo to Hindoos, and so on.
Beyond the Jurisdiction of the Supreme Court, when you found a Man who was neither a Mussulman or Hindoo, what Law did you apply to him?
If he was beyond the Limit, we could apply no Law to him unless he was a British Subject, or in the Service of the Company.
What do the Provincial Courts apply to him?
They administer the Hindoo Code and the Mussulman Code; I am not aware that they can administer any other, though these have, I believe, been varied and explained from Time to Time by Government Regulations, which are forming a Kind of new Code in the Mofussil.
If he was a Chinese, what Law would they administer to him?
I do not know what they could do in that Case; he would be obliged to submit to the only Law that the respective Courts had Authority to administer to him. In Criminal Cases there was never any Difficulty about it, because the Criminal Code that was exercised by the Supreme Court and the Mofussil Courts, within their respective Limits, comprehended every Person living within them.
The Question respects the Provincial Courts?
Of course. If a Half-caste, who was illegitimate and not a British Subject, was living under the Mofussil Court, and he committed any Offence, he could only be tried by that which was originally the Mussulman Law; but it ought to be well understood, that the Company's Government have from Time to Time made a Variety of Regulations, and have adopted a very considerable Portion of the English Criminal Law by their particular Regulations, and therefore there is no doubt that he would have been tried in some Degree in the Spirit of the British Law; but he would not have been entitled to have had a Jury. He would have been liable to have been tried even in Capital Cases by the Judges of the Mofussil Court, without the Intervention of a Jury.
In one of the Answers you gave, it appears that you thought the Natives of Calcutta preferred very much the Jurisdiction of the Supreme Court; is that in Contradistinction to the Provincial Courts?
Yes, I must say that, and I have assigned the Reasons, not from any personal Preference to the Individual, but to the System as exercised by the Supreme Court.
The general Satisfaction they expressed with respect to British Subjects did not apply to the Provincial Courts?
No; I always understood it to apply to the Supreme Court.
The Laws in those Provincial Courts, however, were administered by British Judges?
The Laws in the Provincial Courts were administered by British Judges; and it happened to me while I was there to know many of them, and very eminent excellent Men they were; and I should say, that the principal Difficulty that they had to encounter, and to which a Remedy, I think, ought to be applied, is, that when a Man started in his early Days, he had all his Experience and his legal Principles to acquire, and after having presided in the different Courts of the Company for several Years, many a Gentleman of great Ability and Integrity has made himself a very excellent Judge; but when he departed, which was at a Time when his Judgment and Experience were ripened, he left no Successor to his Knowledge behind him; and the next Person that was to go through those Gradations, and to come into his Place, had got to acquire all the Experience again, which I look upon to be the principal Defect in that Constitution; thereby Men are not educated for the great and responsible Situations they are afterwards to fill; they have no means of attending to hear the Judgments and to observe the Course pursued by those Persons who had already acquired Experience, but that Experience dies or departs with the best Judges, and their Successors have got to begin ab ovo, with acquiring the like.
A great Proportion of the Causes which are decided, some Criminal and many Civil, are decided by the Registrar, that is the first Step a Man takes in the Judicial Line?
So I understand; but many Years having passed since I collected any Information of these Matters in the Mofussil Courts, I do not feel myself competent to give proper Information of the Course of their Proceedings.
Those Persons who decide those Cases are Men of Two and twenty, are they not?
They are very young, from the Necessity of the Thing.
At about what Period do they arrive at the Situation of Assistant?
I am not sufficiently informed to give an Answer to that Question.
What was the Amount of Business in the Supreme Court; how many Causes were decided in the Course of the Year?
I have not taken an Account of that; but in one of the Returns to the House of Commons, very lately delivered to the Members, I think that is stated.
Were you sitting occasionally, or had you Terms?
We had regular Terms Four Times a Year; Criminal Sessions Four Times a Year; and regular Sittings after each Term, both at Law and in Equity. One was taken after the other.
What was the principal Cause of the great Expence of conducting a Cause?
It arose, I think, from large Fees to Counsel, and high Charges of Solicitors and Attorneys in great Causes. I am not aware that Fees and Charges, or the mere Fees of the Court, were in common Cases any thing extraordinary; but in great Causes, involving large Property, the Attorneys and Solicitors certainly made very high Charges, by Consent, I dare say, of their Clients; and then the Fees were also very high: I am speaking of those in proportion to what we know of here; on particular Occasions at Home, very high Fees and Charges occur. I think a high Ratio was more general there than here; otherwise a common Cause for Goods sold and delivered, or any common Cause of that Kind, I believe was tried comparatively as reasonably as it is here, or something higher, as may naturally be expected, but nothing extravagant; but in great Equity Suits, where very large Masses of Property were involved, and where the People were often very litigious, and were sometimes fighting for Victory almost as much as for Property, they themselves encouraged a great Latitude of Expence. I may add, that when long Examinations were taken in Equity Causes, or long Accounts, or large Sums of Money brought into Court, the Fees of the several Officers of the Courts were very high.
Do you know at all the State of Litigation as between the Lower Provinces and the Upper, the Quantity of Suits depending at any given Time?
No, I am not able to state that; but I believe that the Information may be obtained from Parliamentary Papers. The Arrears at Times have been very great; but it is to be borne in mind that Native Persons of large Property being debarred by the existing State of Things from the common and ordinary Excitements of Life, they certainly do indulge to a very considerable Degree in the Love of Litigation; it may be said to be one of their principal Excitements.
A great Number of Causes up to a certain Extent are decided by Native Officers?
Those are to a small Amount in Value.
Had you much Opportunity of being acquainted with the Character of those Officers, and the Degree of Confidence to be placed in them?
I had no personal Knowledge of those Officers; but I must confess that the Characters I have heard of the Generality, both from Europeans and Natives who had such Knowledge, were very far from being of a Nature to encourage one to put a great deal of Judicial Power in their Hands.
That you apply as much to the Judges as to those Persons called Vackeels or Agents?
Whenever any Men of that Description, I should speak rather of a great Number of them, are placed in any Situation of Authority, it has been, I fear, too much the Custom with them to avail themselves of it for their own pecuniary Advantage; but I am not so able to speak to that as Gentlemen who have presided or officiated in the Mofussil Courts. I am quite sure of this, that the Government had but a bad Opinion of them there, because there have been many Regulations made by the local Government from Time to Time, of the most degrading Character to Individuals of that Sort, in order to guard against their Corruption.
May Prejudice have had any Influence in that?
It may have had to some Extent; but general Experience, I believe, called for it.
Do you think that the Opinion you have expressed as to Native Judges applies to the Native Officers attached to the Court, where Justice is conscientiously administered by an European?
Yes, that was a common Opinion; but we had no such Officers attached to the Supreme Court, except the Pundits and Moolvies, whom we consulted on their respective Codes.
There is a Sort of Officer belonging to the Zillah Courts; what do you believe to be the Character of those Persons, whether they were subject to Corruption?
Those I believe are the Suddar Aumeens; they are some of those to whom I allude; but that is merely from what I have commonly and generally heard, for I had no personal Knowledge upon the Subject.
Had you seen enough, while in India, of the Conduct of the Natives to give an Opinion as to any Improvement which might be made in the Administration of Justice in India, by introducing a greater Number of Native Officers?
In the Papers I have drawn up, and which I sent Home some Years ago while I was in India, I have pointed out a Mode.
You have stated in one of your Answers, that in Equity Cases, where the Person resided in Calcutta, and his Property was out of the Jurisdiction of your Court, you came at the Property by means of the Person who was within the Jurisdiction; how did that apply in Cases where you were obliged to appoint Receivers to Property of large Amount, applied to a Property out of the Jurisdiction, and not to the Person?
Where the Parties were brought before the Court in the regular Course of its Jurisdiction, then the Property which was in Dispute between them was incidentally brought also under the Jurisdiction of the Court, so as to be dealt with by their Decree; but when we came to execute a Decree against a Defendant, all we could do was to lay hold of his Person 'till he did such and such Acts ordered by the Court. It would be well to look further into this Subject, and clear any Doubt, if such there be, by a Legislative Provision, calling in the Assistance of the Provincial Officers of the Company.
Could your Receivers, appointed out of your Jurisdiction, enforce the Receipt of Rent, or execute the Duty which they performed, only under your Jurisdiction?
Yes; they could and did.
During your Stay in India, had you any Opportunity of forming any Judgment upon the Question of Suttees; did any fall within your immediate Notice?
I was never present upon such an Occasion as that; I always avoided it. I have heard of them; they were considerably more frequent in the Neighbourhood of the Presidencies than they were, I believe, in the Interior of the Country.
What Reason do you assign for their being more frequent in the Neighbourhood of the Presidencies, and consequently in the Neighbourhood of increased Civilization, than in the Provinces?
I think it arose, in a considerable Degree, from the Excitement that was caused by Missionaries and others, in attempting to argue down the Natives, and to get rid of them; that created a Spirit of Opposition on the Part of those who were interested in preserving that horrible Institution, and made them more active in endeavouring to accomplish the Purpose whenever they could.
Was there any Regulation by which Notice was obliged to be given to any Officers of Government, of an Intention on the Part of the Natives to have a Suttee?
There was a Regulation of the Government which required that no Suttees should take place without Notice to the Magistrate of the District, so as to enable that Magistrate to assure himself that the Sacrifice was voluntarily performed by the Victim, and that there was no Fraud or Force used in order to accomplish the Purpose. But I have heard the Propriety of that Regulation questioned, and I am not quite sure whether there was not, in some Degree, a bad Effect produced by it, because it had something of an Appearance, when the Thing did take place, as if it took place with the Consent of the British Government; but the Regulation was certainly exceedingly well intended, and calculated to prevent any actual Force or Fraud, by Intoxication or otherwise, being made Use of for the Purpose of inducing a Victim, not otherwise willing and desirous of sacrificing herself, to be sacrificed.
Practically, do you believe Suttees were held without such Communication with the Magistrate of the District?
No; I have no Reason to believe that in any Case, after the Promulgation of that Regulation of the Government, any Suttees took place (at least I have no Knowledge of such a Fact) without that previous Communication having been made to the Magistrate; but there might have been, without my knowing or hearing of it.
Do you believe that Suttees became more or less frequent after that Regulation was made?
That I have no Means of judging of; I merely know, from the Representations of various Persons, that Suttees were more frequent within a certain Reach of the Presidency than they were in the Interior of the Country.
That you attribute to the well-intentioned Zeal of certain Persons who had interested themselves in endeavouring to put down that Practice?
Yes; that was the most common Opinion which I heard expressed, which induced me to think so; but I verily believe that, by prudent Conduct and Interference of the Government, the Practice is capable of being (though not perhaps in a Moment) altogether gotten rid of; that is my Belief.
Do you believe that may be more easily done by Influence exerted by the Government, or by Legislative Provision?
I think much better done by Influence exerted by the Government; more simply done, without the Risk of a Convulsion, which I could not be sure might not be created, if it was attempted to be carried into Effect by Force, which a Legislative Provision would call for.
You think the Practice may be got rid of by a prudent Interference on the Part of Government?
I am of that Opinion, and I do not think the Time required for that would be very long. Since I was examined, I have been informed by a Gentleman who had more personal Observation of this Matter than I had, and of the Sentiments of many of the Natives upon it, that in his Opinion they would gladly be relieved from this horrid Practice by a direct Prohibition from the Government. I have no doubt that this was the Opinion of the more enlightened Native Gentlemen, who did not like talking upon this Subject, though ready enough to converse upon religious Topics in general.
You were understood to state your Belief that the Natives would rather wish the System of Law, as administered in the Supreme Court, to be extended; did you mean to confine that Observation to Civil Causes, or to extend it to Criminal also?
I meant both; but I should say that the Criminal Law, as administered by the Mofussil Judges, approaches much more to our Mode of Administration, except in the Event of a Jury, than the Civil Code.
Sir Edward Hyde East delivers in the Statements referred to by him, which are read.
Vide Appendix on this Day's Evidence, Nos. 1, 2, 3, 4, and 5.
The Witness is directed to withdraw.
Ordered, That this Committee be adjourned to Thursday next, One o'Clock.