Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London, [n.d.].
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EVIDENCE of Sir EDWARD HYDE EAST Bart. M.P.
A Sketch of the State and Condition of the British Population within the Jurisdiction of the Supreme Court in Calcutta, in respect to Laws and Usages; with Hints for ameliorating them.
13 Geo. 3, C. 63, Charter of 1774.
General Statute Law of England stopsat 13 Geo.1.
It is proper to remind Government, that notwithstanding the Act of the 13 Geo. 3, C. 63, and the King's Charter of 1774 granted under it, communicating all Civil, Criminal, Admiralty and Ecclesiastical Jurisdiction to the Supreme Court thereby constituted, and virtually and essentially extending the Common and Statute Law of England to the Inhabitants of Calcutta and to the British Inhabitants of the whole Presidency, yet that these Inhabitants have not the full Benefit of the Statute Law of England to a later Period than the 13th Year of George 1st, unless expressly named. This has been the uniform Construction of the Judges of the Supreme Court since its Institution; and whether right or wrong originally, the Judges of the present Day cannot depart from it, without Authority of Parliament.
7 Rep. 17. 2 P. Wms. 75.
The Period at which the general Statute Law stops, in regard to this Presidency, is that of the Constitution of the Mayor's Court in Calcutta; when those who established that Construction said, upon the Doctrine of Calvin's Case, that the British Law was then first given to this, as to a British Colony, and that, as such, it could not be included in any subsequent Statute, unless specially named.
Thus, by a mere technical Rule of doubtful Application and Extent, with respect at least to the fluctuating Body of British Residents in this Presidency, not only they, but the whole Native Population of Calcutta, have been cut off from the common Benefit of the British Legislature, unless specially named (which has not always been remembered), without having any other effective local Legislature substituted in the Place of it. It is difficult to imagine that this could have been foreseen and intended.
Internal Legislation. 13 Geo.3, C. 63, S. 36.
Stat. 39 & 40 G.3. C. 79, S.18, Stat. 53 Geo. 3, C. 155, S. 66.
The only Power of internal Legislation given at that Period, as a Corrective of local Evils, was by the 36th Clause of the Statute 13 Geo. 3, C. 63, which provides that it shall be lawful for The Governor General and Council at Fort William, from Time to Time, to make such Rules, Ordinances and Regulations, for the good Order and Civil Government of the Settlement, and other Places, &c. subordinate thereto, as shall be deemed just and reasonable; (such Rules, &c. not being repugnant to the Laws of the Realm;) and to set, impose, inflict and levy reasonable Fines and Forfeitures for the Breach or Non-observance of such Rules, &c.; but that the same or any of them shall not be valid unless duly registered and published in the Supreme Court, with the Consent and Approbation of the said Court; and then it specifies the Mode and Time of Registry, and gives an Appeal to The King in Council; making, however, the Law valid in the meantime after its Registry. By the Statute 39 and 40 Geo. 3, a further Power was given to enforce such Rules, &c. by Corporal Punishment, that is, by public or private whipping, or otherwise; and the Statute 53 Geo. 3, C. 155, S. 66, requires Copies of these Rules, &c. to be annually laid before Parliament.
But looking first to the Terms, "Rules, Ordinances and Regulations" used in the granting Part, which rather convey the Notion of a Power to carry into Effect by local and subordinate Means and Measures the Substance or Spirit of Laws already given, than to originate new Laws, shackled also as the Power is by the express Proviso, that those local Rules, &c. shall not be contrary to the Laws of the Realm, a Restriction very difficult to adapt to local Circumstances, and almost irreconcileable with any plain Departure from the general Spirit of those Laws, however proper in different Circumstances, and most of all looking at the Power given to sanction the Observance of such local Rules, &c. by Fines, Forfeitures and Corporal Punishment, the only Construction which could safely be put upon this local Legislating Power was, that it was to be confined to mere Police Regulations, for preserving the Peace, preventing or punishing Nuisances, and the like (fn. 1), and was not to be extended to a general Power of making original Laws affecting the Liberty or Title to Property of the Inhabitants of Calcutta, including all Descriptions, or even the Laws, Usages and Customs of the Native Inhabitants, though a new Law should be given by the local Government to affect the Native Inhabitants of the Provinces in the same respects.
Particular Statutes for India.
Another Mode has been taken to supply this Defect in the State and Condition of the Inhabitants of Calcutta, namely, for Parliament to pass particular Laws, from Time to Time, remedying specific Defects and Grievances which could not any longer be delayed or palliated. These are to be found in the subsequent Statutes: 21 Geo. 3, C. 70, 26 Geo. 3, C. 57, 33 Geo.3, C. 52, 37 Geo. 3, C. 142, 39 & 40 Geo.3, C. 79, 47 Geo.3, Sess. 2, C. 68, and 53 Geo.3, C. 155. Other Statutes have been made since these Observations were written, particularly the Statute 9 Geo. 4, C. 74, for improving the Administration of Criminal Justice in India, by which many of the Omissions herein stated have been supplied, and other beneficial Enactments made. See also the Statute 7 Geo. 4, C. 37, regulating the Appointment of Native Juries in India; Statute 9 Geo. 4, C. 33, as to the Liability of Real Estates in India for Debt; and C. 73, relating to Insolvent Debtors and Bankrupts there.
General Laws passed since 13 Geo. 1 not extending to India.
But since the 13 Geo. 1 a Variety of Laws of general Application, and some of great Utility, have passed, not only for improving and preserving the Moral and Legal State and Condition of the People at Home, and for the better Protection of Persons and Property, but also for repealing obsolete, inconvenient and oppressive Laws, and substituting new Laws, better adapted to the Growth of Experience and Intelligence. The Mass of these, however necessary, have never reached India; and the British Subjects in India, as well as the Native Inhabitants of Calcutta, remain under the Statute Laws of England (so far as they have been construed to apply to them) such as they were in the 13th Year of George 1st, with the Addition of the few I have mentioned, though some of the Provisions still in force here have been modified or repealed as to England, and many new Laws of beneficial Import have passed which have not been extended to India.
Particular Examples casually selected:
In order to show the actual Inconvenience of this State of Things, it is sufficient, without the Parade and Tedium of turning over the prolific Indexes of the Statute Books, to mention several Instances which have in fact occurred during the Two Years I have sat on this Bench, wherein the Deficiency was felt, to the Disparagement of Justice.
Cheats by false Pretences.
Cases within the 30 Geo. 2, C.24, against obtaining Money, &c. by false Pretences. The Cheats escaped unpunished. This is of constant Occurrence.
Felon standing mute, 12 Geo.3, C.20, and 9 Geo. 4, C. 74, S. 18.
A Felon stood mute; and it was very doubtful whether it was not obstinately. If so found, he must have been put to the barbarous Torture of Pain forte et dure, instead of having Judgment against him by the Statute 12 Geo.3, C. 20. But this is now better provided for, by the Court ordering a Plea of Not guilty to be entered for him.
Justices of Peace.
Various necessary and convenient Powers are given to Justices of the Peace by modern Statutes, none of which extend to us, though as far as it was competent some of the Powers have been supplied by local Bye-Laws.
Marriage of Minors.
Vide Canon 62.
The Marriage Act does not extend hither. The Act in toto would not entirely have suited our Condition and Circumstances; but thus much we want, that no Marriage of a Minor in the Cornpany's Service should be valid, in the Absence from the Presidency under which he serves of both his Parents or legal Guardians, without the Consent in Writing of The Governor General, or other Head of the Government, who may properly be considered in loco parentis. The Supreme Court performs this Parental Duty as well as it can at present, by acting upon the Canons which prohibit the Clergy from marrying Minors without the Consent of their Parents or Guardians; and we have therefore lately resolved not to grant any Marriage Licence unless upon Oath that the Parties are of Age, or, if Minors, that they have the Consent of their Parents, or of those to the Care of whom their Parents have confided them; and that they are not married to any other, nor know of any lawful Impediment by Consanguinity or otherwise. In the Case of the Company's minor Servants, we refuse our Licence, unless they have the Consent of The Governor General, or other temporary Head of the Government, whom we consider, in the Absence of their proper Parents or Guardians, to be in loco parentum.
But if the Clergyman choose to act without our Licence, and, in the Case of the Company's minor Servants, without the Approbation of the Head of the Government, though he may subject himself to Ecclesiastical Censures in the one Case, or to the just Displeasure of Government in the other, yet the Marriage is good, and the individual Evil is remediless. Within a Month after our new Regulation, the Affidavit required proved the Means of preventing Two incestuous Marriages; and in another Instance within the same Period, where the Marriage Ceremony had been incautiously celebrated without a Licence, it was afterwards discovered that one of the Parties was already married at the Time.
The Clergy here ought therefore to be prohibited from marrying without the Licence of the Supreme Court in its Ecclesiastical Capacity, which we only grant upon the proper Affidavit; and for which a very moderate Fee is taken by our Registrar, which Parliament may, if they please, regulate; and the Court itself should be prohibited from granting a Marriage Licence to any Minor in the Company's Service, whose proper Parents or legal Guardians are not present and consenting, without the Consent in Writing of The Governor General or other Head of the Government.
Ld. Ellenborough's Act, malicious stabbing, &c.
The Black Act, 9 Geo. 1, C. 22, making it a Capital Felony maliciously to shoot at another, extends hither; but Lord Ellenborough's Act. 43 Geo. 3, C. 58, putting a malicious stabbing or cutting of another with Intent to Murder, &c., upon the same Footing, does not extend hither, and is only a Misdemeanor. I was under the Necessity, in the same Sessions, of passing Two incongruous Sentences on different Prisoners for these several Offences; and though the stabbing Case was by far the most atrocious in Moral Guilt, the Judgment was necessarily the most lenient. This was incomprehensible to the Native Audience around. The Capital Punishment was indeed afterwards commuted for Transportation; but the worst Offender could only be imprisoned here in the Common Gaol.
There are other wholesome Provisions in Lord Ellenborough's Act which do not reach us.
Burning in Hand Felons.
We are still obliged to give Sentence of burning in the Hand, where we do not transport, for Grand Larceny; because the Statute 19 Geo. 3, C. 74, S. 3, is of no Avail to us, which enables other more appropriate Punishments to be inflicted instead of it.
Embezzlements by Servants, &c.
The Statute 39 Geo. 3, C. 85, against Embezzlement by Servants and Clerks, (and see the corresponding Statute of the 51 Geo.3, C. 38, passed for Ireland, which is more correctly worded in the Description of the Offence,) does not extend to us, though no where are there more frequent Offences of this Description.
Privily stealing from the Person.
With us, the privily stealing from the Person is still a Capital Offence under the Statute 8 Elizabeth, C. 4, though the Statute 48 Geo. 3, C. 129, substitutes Imprisonment and hard Labour, not exceeding Three Years.
Wilful Destruction of Ships.
The Statute 43 Geo. 3, C. 113, makes new Provisions against the wilful destroying of Ships, &c., an Offence which there is Reason to fear is not of unfrequent Occurrence in these Rivers and Seas. (fn. 2)
Witnesses not answering.
The Statute 46 Geo. 3, C. 37, declaring the Law with respect to Witnesses refusing to answer, may be supposed sufficient.
There are no Laws for protecting our Post Office within Calcutta, which should seem expedient; though no Case of that Sort has yet actually been brought before us.
Growing Crops. [The Gardens are now continually plundered, &c.]
Should the Jurisdiction of Calcutta be extended into the Country, (and we are informed that such a Measure was lately in contemplation,) the Ryots would soon want the Protection of the Statute 42 Geo. 3, C. 67, against the stealing of growing Crops; which should be confided to the Justices of Peace. The Robbery of Gardens is frequent.
I could extend this List much further.
Remedies suggested. 1. To give us the Stat. Law from 13 Geo. 1. in addition, except, &c.
The Remedy for these and similar Defects seems of Two Sorts:
1st. To pass a General Law extending all past Statutes, from the 13 Geo. 1, inclusive, (in Continuation of former Provisions,) and all future Statutes of England, to this Country; leaving to the Supreme Court to exclude, by Construction, such Statutes or Parts of Statutes as may in their Judgment appear to be of a Character merely local for England, &c., and not applicable to the Condition of India. (fn. 3)
Though this would seem to be giving a great Latitude of Discretion to the Court, yet it is rather in Sound than in Sense, and is no more than was originally confided to it in respect of the Statute Law of England down to the 13th George 1, concerning which I have never heard any Suggestion that the Power had been abused, except in the Application made of the Capital Offence of Forgery, in a single Instance, to the Case of Nuncodomar; and there the principal Stress was laid on its Application ex post facto. But it can rarely happen that any serious Difficulty should occur in the Exercise of such a Discretion, confined to the negative Power of Rejection, which in Common Sense would be exercised whenever there was a serious Doubt; and sure I am, that with the ordinary Habits of Caution belonging to every British Judge, more particularly in Criminal Matters, no serious Mischief is to be apprehended, but rather a judicious Selection is to be expected. At all events the Power would be guarded by saving and excepting its Application in every Case against a positive Statute made for the express Purpose of binding India; which will secure all the particular Provisions already given for our Government, and provide for every future Enactment for our separate Use.
2. To give a local general Legislative Power on the existing Basis, subject to Confirmation.
2. The other Remedy which I would propose is rather for the Benefit of the Native Inhabitants of Calcutta; which is, to extend the Power of Legislation at present conferred upon The Governor General in Council with the Consent of the Supreme Court, by enabling them to make general local Laws, (such as in fact The Governor General and Council alone have been accustomed to make for the Mofussil,) not merely confined to Purposes of Police, but extending to general Objects, which would include Laws affecting the Native Inhabitants in the Points which in another Paper I have suggested that they stand in need of, as well as in others which may occur.
The necessary Exceptions to such an enlarged Power would be, that no Laws should be made contrary to the Duty of Allegiance, nor contrary to any express Law made or to be made by Parliament for the Government of British India; and that the Laws should be equal in all Matters of common Concern between British and Native Subjects, for the common Good, without Favor or Disparagement to either.
Confirmation. [This for the Purpose of enabling any of the Inhabitants to appeal, according to the Proision of former Laws.]
There may be this further Check, that before any local Law thus made should be put in force it should be published in the Government Gazette, once in the English and once in the Bengalle Language, and should then be transmitted Home (together with any Appeal therefrom), to be approved by The King in Council, and, if approved, remitted to this Government, for the Purpose of being put in force, after another similar Publication made.
New Legislative Provisions for the Punishment of Criminals.
So much as to general Legislation; but in addition to the particular Statutes incidentally mentioned in illustration of the general Deficiency, there are certain other particular Provisions very expedient to be adopted by a new Law.
1. To enable the Court, in all Cases of Felony where by Law they may now send the Convicts to the Common Gaol, to send them to the House of Correction as well as to the Common Gaol, for any Time not exceeding Two Years (fn. 4), and to adjudge them to hard Labour and Whipping, or to either of those, in the House of Correction, or to hard Labour alone in the Common Gaol; as also to empower the Government to employ those who have been adjudged to hard Labour in labouring upon any Public Works, in or out of Doors, during the Period for which they shall have been adjudged to be confined in either Place.
2. To enable the Court to send Persons convicted of Perjury, Forgery, Conspiracy or Cheats, or of Assaults committed with Infamy, or with Atrocity and Cruelty, either to the House of Correction or to the Common Gaol, to be there punished in the Manner above mentioned, for any Period for which they may be now imprisoned in the Common Gaol, and subject to the like Disposition of Government as to Labour, in or out of Doors; providing that such Offenders may be otherwise punished as before the passing of this Law.
3. To give an Option to the Court in all Cases of transportable Offences, whether by original Sentence or Commutation for Capital Punishment, to send the Offender for the same or any less Period to the Common Gaol or House of Correction, there to be dealt with as above mentioned.
A Provision somewhat analogous to this, in the Case of transportable Felonies and clergyable Larcenies, is to be found in the Statute 51 Geo. 3. C. 63. as to Ireland, and in the Statute 53 Geo. 3. C. 162. as to England, but the Provision thereby made is not sufficient for us.
Grounds of Recommendation.
The Grounds on which I have been led to form such Recommendations are these. By the Act of the 53 Geo. 3. C. 155. the Court is restrained to transport Native Convicts within Lat. 30 Degrees N. and 25 Degrees S. of the Line; as indeed by the Statute 39 and 40 Geo. 3. C. 79. they could not have been transported to New South Wales. The usual Places to which they have been sent have been the Island of Penang and Bencoolen, on the Coast of Sumatra. For some Time we have been obliged to refrain from sending them to the former Place; for so many of them had made Money there by the high Rate of Labour, and bettered their Condition, that after their Term was expired they only came back for the Purpose of carrying their Families away to settle at Penang; and made such Reports and Display of the Benefits of their Transportation, and of their newly-acquired Wealth, that some were induced, as it appeared at the Police, to commit Offences for the Purpose of being transported to Penang. We have not yet found the same Disposition for Bencoolen. But besides the Expence of Transportation, which is never for less Time than Seven Years, it has appeared to the Court that the sentencing of an Offender to hard Labour or other Corporal Punishment at Home, for the same or a less Period, would in many Instances answer better, as well for Correction of the Offender as for Example' sake, than the transporting him, and particularly if the Labour might be performed out of Doors (as it frequently is in the Case of Mofussil Convicts) as well as within, under the Direction of Government, which would not only be turning their Labour to good Public Account, in the forwarding of Public Works, thereby enabling the Convict to make some Atonement to the State for his Misconduct, but also in respect of the Convict's own Health, in regard to which this Climate makes long-continued hard Labour within Doors very inconvenient, and sometimes oppressive.
But mere Imprisonment without any Labour at all is of very dubious Effect, by way of Correction or Example, when applied to the lower Orders here, who have commonly much Apathy, and little Inclination to any Exertion which Want or Force does not compel. Most of these are better lodged and fed in some of our Gaols than they would be at their own Homes; and some have been known to petition to remain there after the Term of their Imprisonment was expired. They acquire in Gaol a habit of Idleness which is difficult afterwards to be relinquished, and leads to new Offences. The Objection which might be felt in England, from Political Considerations, to the View of Convicts working openly in their Shackles, does not apply to this Country, particularly where the Permission to work out of Doors is in many Parts the Reward of good Conduct in the Gaol.
With respect to fraudulent Misdemeanors, by which great Gains are sometimes acquired, mere Imprisonment in the Common Gaol does not weigh a Feather in the Balance against the Success of the Enterprize; and Misdemeanors, committed with Circumstances of Infamy, or of Atrocity and Cruelty, are often more deserving of Corporal Punishments than mere Simple Larcenies, though our technical Distinctions class the latter in the higher Denomination of Felony. Hard Labour would in most of these Cases be beneficially added to Imprisonment.
Police Regulations, and Extension of Powers.
Another Subject which calls for the immediate Attention of Government at Home arises as well from the recent Reformation of the Police (a Subject upon which I felt it my Duty to address this Government soon after my Arrival here, in consequence of numerous Complaints laid before the other Judges and myself respecting the arbitrary Mode of administering the Police Functions) as from the late Act of the 53d of The King, appointing Four Sessions to be holden by the Supreme Court in the Year instead of Two.
The Police Magistrates had fallen into the habit (inter alia) of punishing Petty Thefts, and the like, by a summary Process of their own; the Illegality of which Mode of Trial was the least objectionable Part of the Proceeding, the Trial itself having been frequently conducted in a very hasty and imperfect Manner. This arose principally from the want of a sufficient Number of Magistrates to perform the laborious but necessary Duty of Inquiry, amongst an immense Population, addicted to Theft, and full of Deceit. The Evil was in part corrected, though not, I think, to the proper Extent, for Fear of trenching too much on Public Economy. The Paper I gave in on that Occasion is in the Hands of this Government, and may be referred to if necessary. A Bye Law was passed to correct as far as possible the Evils complained of; but there was no Power in the constituted Authorities on the Spot to make Bye Laws contrary to the Laws of the Realm, and consequently there was no Power to transfer the Trial of Felonies from a Jury in the Supreme Court to the Police Magistrates. Two Magistrates, however, were authorized to inquire of and punish, in the Mode prescribed by some of the Police Acts in London, all Offences of this Tendency short of a plain Felony. The Magistrates under the new Commission have acted ably and efficiently up to the Extent of their Authority; but stopping short with that, they have referred all Cases of Felony to the Trial by Jury before the Supreme Court; and this has necessarily swollen our Calendars to a much greater degree in each of the Four Sessions (which came opportunely enough to meet the Exigency) than had before occurred in the Two Annual Sessions.
Complaints of Grand and Petty Juries.
This has thrown a great additional Burthen upon the Grand and Petty Juries, whose longer and more frequent Absence from their private Concerns is felt very inconveniently by most of them, particularly of the latter Description, who can but ill dispense with a continued Watchfulness over their Native Servants.
Much Discussion took place in the June Sessions of 1815, amongst the Grand Jury, upon this Subject; and they had drawn up some Representations to Government, which were seen, though no regular Address was ever presented, upon an Intimation that the Subject was then under Consideration, and would be brought forward. Having to charge the Grand Jury in the October Sessions following, I touched upon the Subject to them, and they then represented to me their Wishes that some Mode of Relief could be adopted, which I promised should be made known to Government at Home, which was best able to judge of the Propriety and Extent of any Alteration in the established Course of Law better accommodated to our local Convenience.
It is not easy to draw a precise Line which will sustain a great National Principle, and yet bend to local Convenience. Those who are fit to serve on Petty Juries are not very numerous in this Place, and the Turn comes round very frequently to the same Person. This, with the Climate and National Habits, renders the Duty more oppressive than it can be felt at Home.
Suggestion of Remedy.
If any Relaxation can be admitted, consistently with the higher Interest of the State, I know not where the Line can be better drawn than this (fn. 5); (for it must in Fairness and in Policy be the same for the Native as for the European British Subject;) to give to Two Magistrates the Power of trying all Simple Larcenies under Capital Felonies, and not attended with any Circumstance of Aggravation, directing them, in Cases of capital or aggravated Larcenies, to commit to the Sessions for Trial, and limiting their Power of Punishment to Six Months Imprisonment in the Gaol or House of Correction, to be punished and employed there, in or out of Doors, in the Manner I have before suggested, under the Controul of the Government.
The like Powers might be given to the Police Magistrates with respect to Simple Assaults.
In both Cases an Option might be given; to the Prosecutor, to proceed by Indictment before the Supreme Court, and to the Prisoner or Defendant, before Trial, to remove the Complaint by Certiorari from the Jurisdiction of the Magistrates to the same Court, upon depositing 30 Sicca Rupees, (which is the lowest Expence of preferring a Common Indictment for Larceny before the Grand Jury, not including Expences of Witnesses,) to be paid over to the Prosecutor, or to the Clerk of the Crown, when the Bill is preferred. And if it were thought necessary, (of which I am not aware,) a Liberty of Appeal might be given, even after Trial before the Magistrates, to a Judge in Chambers, within Three Days, on Payment of the Expence of copying the Charge, Evidence and Judgment, from the Notes of the Magistrates returned by them; excluding all Objections in point of Form, and confining the Objections to the intrinsic Merits of the Case, as it appeared on the Evidence taken below; giving to the Judge Power to examine the Proceedings so returned in a summary Manner, and to approve, mitigate or abrogate the Sentence, as to him shall appear to be just.
In the greater Number of Cases, this Course of Proceeding before the Magistrates would perhaps be better for the accused themselves, as it would save them much of the intermediate Imprisonment in the Intervals between Session and Session.
Extending Limits of Calcutta.
I had prepared some Grounds to lay before your Lordship for extending the Limits of Jurisdiction given to the Supreme Court and Magistracy of Calcutta in certain Cases, but it is now become unnecessary to detail them, as the Company's Government has, I find, anticipated the Necessity of the Measure, and has procured an Act for that Purpose. (fn. 5)
[See the Papers respecting the Mofussil Jurisdiction.]
The Object in view at present by this Government is properly of a limited kind; but the future Extension into the Provinces of the British System of Law, as it is administered by the Supreme Court, incorporated with the Hindoo and Mahometan Civil Codes in all their local Peculiarities, as they respect themselves, in Matters of Real Title, Inheritance, Succession, Form of Contract, Marriage, Adoption, and incidentally of Caste, will no doubt be the greatest Blessing that the British Government can confer upon India. As to the properest Times and Modes of doing this, the local Government must necessarily have the best Means of informing themselves, and judging. They will no doubt take care, under the new Bill, not to oppress the Supreme Court by overloading it with too much, particularly of Criminal Business, constituted as it is at present; though I will not deny that more Use may be made of it, provided it may be relieved from the Trial of Petty Offences in the Manner before suggested. And if it should be thought expedient hereafter to extend the Experiment of this Jurisdiction to any distant Limit from Calcutta, it may be done gradually, so as to enable the Judges, as we humbly hope, to make such Observations to this Government as their Experience may suggest to them. I have no hesitation in recommending the Experiment, if it be done gradually, and accompanied, beyond a reasonable Extent, with Provisions for a more convenient Division of Labour in the Juridical Field, and for an Addition of Labourers when the Burthen of the Day shall be found too great for those already employed.
There is another Subject, which, though of a Political Nature, is closely connected with the Judicial State of the British Inhabitants of India, and of the general Population of Calcutta. I mean those Foreign Colonies of the Dutch, Danes and French, which are established upon the Hoogly Branch of the Ganges, within short Distances from Calcutta. These are aptly situated to become Receptacles of Felony and Fraud, from the neighbouring Capital and Territories; and in proportion as the British Capital in India has been extending in Population, Commerce and Wealth, and those Foreign Establishments have decreased in Opulence, and in Consequence to the several Parent Countries, the Nuisance has been gradually increasing.
The Parent States do not think it worth their Cost to maintain independent and respectable Judicial Establishments in their deteriorated Settlements, and therefore a principal Source of Emolument looked to by those who bear Rule in them, is rather, it should seem, to connive at the Protection purchased by Persons, who, having committed Offences, or withdrawing from the Reach of their Creditors, in Calcutta, take refuge in these Places, than to afford the Facilities of Justice to those who have been wronged. The Judges have frequent Petitioners before them at Chambers upon this Subject, to whom they can of course give no Redress. I have been even informed lately of Threats held out by a Debtor, that he would take refuge in one of those Settlements if further Advances were not made to him; and this I am told is not unfrequent.
During the late War, and while this Government has had the Military Possession of those Foreign Colonies, the Evil has been lessened in respect to Criminals, by this Government charging itself with the Criminal Administration of Justice within their Limits; but the Civil Courts were and still are left in the independent Operation of their several National Laws, though under the Direction, nearly nominal, of a British Subject; and when the Factories are restored, even this faint Check will be removed. The Cession by the Dutch of Biriagore removes the Evil from that Spot, but leaves it in full Force in the other Places. What would become of Judicial Process in London, if France, Denmark and Holland, held Hounslow, Brentford and Barnet in Sovereignty, though Highgate was given up to the Crown of England?
I know not by what Title the several Parent Countries of these Foreign Factories can affect to hold them in Sovereignty. I should rather apprehend that the Sovereignty was vested in the British Government, which by Conquest and by Treaties has succeeded to the former Mussulman Dominion. But if they still affect an exclusive Possession, which the British Government may not think it worth while to contest, they would probably have no Difficulty in making Arrangements with it for the mutual Surrender of their Criminals. But what Redress can be obtained against fraudulent Debtors escaping from one Jurisdiction into another, unless there are independent Courts in each, well appointed and provided for, and filled by Persons who have no Interest in screening those Defaulters from their injured Creditors. These Factories are in truth no longer of any real Use to France, Denmark or Holland. There is no one Subject of theirs having common Honesty and Discernment who would not prefer carrying on his Trade in Calcutta (as many of them do) under the Protection of the British Government. Nothing political remains of any of these Settlements but the Nuisance of them, if considered as independent Jurisdictions, to the Inhabitants of the British Territories. They arrest the Course of Justice, and afford a Shelter to Knavery.
If the several Foreign Powers do not agree to maintain an efficient and well-appointed Judicial Establishment, each in its own Settlement, it should be proposed to them to withdraw their Judicial Establishments altogether, and recognize the British Courts, stipulating, if they please, that those Courts should, in Matters between their own European Subjects only, judge according to their own Laws, or, unless the contrary should be stipulated for between the Parties in Writing, should judge according to the Law of the Defendant's Country, of which Evidence may be given as in other similar Cases.