Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
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Appendix 2 to the evidence of Sir Edward Hyde East Bart M.P.
A Sketch of the State and Condition of the Native Population within the Jurisdiction of the Supreme Court in Calcutta, in respect to Laws and Usages; with Hints for ameliorating them.
Situation under the Charter of 1774 and Acts of Parliament.
By the Constitution of the Supreme Court, under the King's Charter and various Acts of Parliament, all the Native Inhabitants of Calcutta, Hindoos and Mussulmans, as well as British, are placed under the Protection of the King's Laws; saving to the Two former those Parts of their respective Native Codes which are essentially local in their Nature; and since that Period, the rapid Rise of Calcutta, and the Growth of its Population from all Parts of India, are, I believe, without Example in the World, and are still proceeding with increased Activity. This is some Earnest of the real Estimation by the Native Inhabitants of all the Provinces, for the System and Administration of the British Laws.
See the antecedent Paper.
Reserving the State of the British Inhabitants for a separate Consideration, the present Notice is confined to the original Native Inhabitants, and to such Foreign Settlers as have colonized amongst them.
Distinction between British and Native Subjects.
On a close Observation and Comparison of the several Legislative Provisions made for the Government of India, it will be found that the Statutes, speaking in particular of British Subjects, or of the Subjects of His Majesty, use those Terms in contradistinction to Native Inhabitants; although in Strictness of Law all the Native Inhabitants within the Company's Territories are Subjects of His Majesty, and therefore in an enlarged Sense might be considered to be British Subjects, in like Manner as a Native of Ireland, even before the Parliamentary Union, was as much a British Subject as a Native of Great Britain; that is, they are Native Subjects of the British King and Crown, though under different Administrations of Government, holding Authority under the same Prince. And this, which could never have been seriously questioned after the Supremacy of The King of Delhi became purely nominal, is now put beyond all Doubt by the formal Declaration of the Legislature in the Act of the 53 Geo. 3. C. 155, which asserts the undoubted Sovereignty of the Crown over the Indian Territories. And it may be relied on, that the Native Inhabitants in general, but more particularly the Hindoos of all Ranks, are proud of this Distinction, and zealous for its full Extension to them.
Inhabitants of Calcutta subject to British Laws; saving local Laws of Gentoos and Mussulmans.
The Distinction, however, which is adverted to, has been made for Judicial Purposes throughout this Class of Statutes by which the Administration of the Supreme Court is governed. When therefore the Statute 21 Geo. 3. C. 70, defining anew the Jurisdiction of this Court, establishes it generally over all the Inhabitants of Calcutta, (including of course every Description of Persons inhabiting it,) the 17th Section provides that the Inheritance and Succession to Lands, Rents and Goods, and all Matters of Contract and Dealing, between Mahometans, shall be determined by their own Laws and Usages, and the like between Gentoos, and when only One of the Parties shall be a Mahometan or Gentoo, by the Laws and Usages of the Defendant. (fn. 1) In all other respects these, and in every respect the other Inhabitants of Calcutta, are placed under the same Laws of England which govern British Subjects in the same Place, with certain Exceptions hereafter noticed.
Different Descriptions of Inhabitants.
The Inhabitants of Calcutta may, for Judicial Purposes, be classed into—
1. British European Subjects and their legitimate Descendants.
2. Hindoos or Gentoos.
4. Other proper Natives of Asia, neither Hindoos, Mussulmans or Christians.
5. Portuguese, Armenian and other Christians of Native or Foreign Extraction, together with Half-caste or illegitimate Christian Children of British Subjects by Native Mothers.
Hindoos and Mussulmans.
1. The Situation of the first Class is separately treated of in another Paper.
2. & 3. The Gentoos (more commonly called Hindoos) and the Mussulmans of the British Dominion in India may for this Purpose be classed together. They are each to be governed, as the Statute 21 Geo. 3. C. 70. enjoins, by their own Laws of Inheritance, Succession and Contract, respectively, as between themselves. But many of these Laws, formed in rude Times, are imperfectly adapted to the modern Growth of Arts, Knowledge and Civilization around them. The Men and their Manners have undergone more Alteration than is generally suspected; but the Laws, though construed as favourably as possible to meet this Change, still remain in substance the same. Both Codes, particularly the Hindao, have multifarious Rules enough; but almost every One has its contrariant Constructions and its convenient Loopholes for the strong and crafty to escape through, with as many avowed Diversities as there are Provinces. This leads to endless Uncertainty and Litigation.
A small Portion of this Evil in Civil and a much greater in Criminal Matters has been mitigated in the Provinces, where the Government has continued to exercise a Legislative Power, though cautiously exerted, to correct Abuses, and to supply Defects, when flagrant, especially in Matters connected with Revenue or Police. But ever since the Appointment of the Supreme Court, and indeed I believe I might say ever since the Institution of its Predecessor, the Mayor's Court, in Calcutta, the Hindoo and Mussulman Civil Codes have been stationary, and submitted to no Improvement within the local Limits, except such as was capable of being introduced by Construction, under conflicting or silent Authorities. Their Criminal Codes were entirely laid aside in the first Instance.
Proposal as to internal Power of Legislation.
I should propose that the Local Government, with the Sanction of the Supreme Court, should at least have the Power to extend any new Laws into Calcutta, with or without Modifications, as Parts of the Hindoo or Mussulman Codes, which the Government may have found it expedient to adopt, in the Mofussil. What would be thought of governing the People of Great Britain at this Day by the Laws of the Heptarchy?
Suggestions of particular Laws, Wills.
Added to this, the Hindoos have insensibly adopted some of our Laws, without any Authority except the Sanction of the Supreme Court, giving Effect to their Acts. For instance, they now very generally dispose of their Property by Will; but the Supreme Court being restrained to give Probate of Wills and grant Administration of the Effects of British Subjects only, (in the confined Sense before noticed*,) and the Hindoos having no Place of Deposit, like our Ecclesiastical Court, for the safe Custody of their Wills, there are numberless Temptations to Forgery, and ample Time for the Fabrication, according to Circumstances. The Executors are under no Obligation to deliver Schedules of the Personal Property upon Oath, or Accounts of their Receipts, by which their Fidelity may at any Time be brought to the Test, if necessary, except by the burthensome Process of a Suit in Equity, which can seldom occur in Time to have the desired full Effect, nor without a previous Dispute among the Spoliators for a Division of the Spoil, and the Expence of which can only be borne by an Estate of a certain Magnitude; consequently Women, Infants and Absentees have no adequate Check upon such Administrators of their Properties, whom it is now extremely difficult to fix with the Possession of Personal and sometimes even of Landed Property at any Distance of Time, so many ingenious Devices have they for covering such Possession in other Men's Names. And in all Instances the Parties injured run great Hazard in substantiating their Claims, when all the Documentary Proofs are in the Hands of their Spoliators.
Many of the most sensible Hindoos with whom I have conversed on the Subject deplore this Deficiency; and in a late Instance, where the Government had reasonably refused to pay Money to one who claimed to be the Representative of a deceased Hindoo entitled to it, without Assurance of his representative Character, I could devise no better Method, in Justice to both Parties, than to admit him, at his own Request, to deposit the Will, as in Registry, with the Registrar of the Supreme Court on the Ecclesiastical Side, and to administer a voluntary Oath, at the Hindoo Executor's Request, verifying the Will, and his own representative Character. (fn. 4) But by way of Precaution, and that no Person might be misled by it to attribute a greater Authority than belonged to such an Act, I directed the Registrar to draw up the Verification in Writing, which was to be given to the Party by way of Memorial of his Claim, as having been made voluntarily, and noting that the Will was not registered, but voluntarily deposited as in Registry. Regular Authority however is clearly wanting to authenticate and still more to establish the Duty of registering Hindoo and Mussulman Wills, for Purposes of Property. Something of this kind already exists in the Mofussil.
Marriages, Divorces and Separation. [Thir must be understood in regard to the inferior Classes.]
The Mussulmans feel the Want at Times of a Jurisdiction for the direct Cognizance of their Marriages, Divorces and Separation, which have been heretofore dealt with, for want of a better Authority, in a very arbitrary Manner, by some of the Police Magistrates. The Hindoo Customs seldom or ever give rise to such Questions; or if these do arise, they are for the most part settled in foro domestico; though I have known Attempts to enforce Separation on the Part of Hindoo Women by their Parents and Friends. The Judges are often solicited at Chambers, particularly by Mussulmans, to exercise this kind of Jurisdiction, but know not by what Authority it can be assumed, and I have therefore only interfered, and that but rarely, either as a Mediator, or by referring such Questions to the Cazies, who repudiate any express Authority in themselves, except as Referees by Consent of Parties, having no Means of enforcing Obedience to their Judgments. The Head Cazi in particular saying, upon my Application to him for Information, that the Power of Divorce and Separation properly belongs only to the Chief Magistrate of the State, and is not exercisable by inferior Magistrates. A Mussulman of high Rank informed me that he considered the Authority of enforcing those Judgments as necessarily forming Part of the Supreme Power of the State. But in truth it would be dangerous and impolitic to give any of the Mussulmans Judicial Power, without British Controul: it would soon be made an Engine of Barter. The Hindoo, I fear, is remediless, on account of the Rules of Caste.
Interest of Money.
The British Statute Law of Queen Ann, limiting the Rate of Interest to £5 per Cent., and inflicting Penalties on Usury, does not apply to this Place, being founded on local Considerations at Home; and the Statute 13 Geo. 3, C. 63, S. 30, only restrains British Subjects from taking more than £12 per Cent. But this does not extend to Hindoos; and as these latter were not originally restrained in their Contracts to any certain Rate of Interest, and their Contracts are saved as between themselves by the 17th Clause of the Statute 21 G. 3, C. 70, before mentioned, the Door was consequently left open to excessive Usury on their Part. Nothing however can be more absurd and unjust than to enable Natives to take a higher Rate of Interest from British Subjects than the latter may take from them.
This Evil, with respect to the Provinces at large, has been provided against by a modern Regulation of the Government, restricting Interest on Loans to be taken by Natives to 12 per Cent.; but as that Regulation does not extend into Calcutta, (as being within the exclusive Pale of the British Jurisdiction, and under a distinct Legislating Power,) the usurious Native of the Capital is left without any other Restraint than one, which perhaps in strictness cannot be justified, that where resort is had to the Process of the Supreme Court to enforce Money Contracts, it has not allowed more than £12 per Cent. in any Case to be recovered, as being against Conscience, and oppressive. And I found that in very flagrant Cases of oppressive Interest beyond £12 per Cent. the Court had disallowed Interest altogether, though expressly reserved; which seems to be going far. (fn. 2)
The Interest which the Court allows, (thence called Court Interest,) where no express Rate is stipulated for, was £10 per Cent. We reduced it to £6 per Cent. in 1821.
The Remedy however afforded by the Court can only be given to the oppressed, if he be rich enough to contest the Payment of more than £12 per Cent., and drive the Usurer to his Action; and unless the Amount is considerable, he must probably be a Loser upon the Balance against the Costs of the Action, or at least his own Costs. It is notorious that the common People of Calcutta universally pay more than £12 per Cent. for their Loans; in general nearly double, and frequently still more, under various Pretences. The Rate of Interest in the Native Capitals of India is ordinarily above £12 per Cent., and often from £20 to £25, on account of the Insecurity of the Principal.
It is no doubt politic to permit a higher Rate of Interest at Calcutta than is allowed in England, in order to draw the monied Natives of India (who live for the most part on the Interest of their Capitals) into Calcutta, where it is employed in aid of British Trade and Enterprize, and of the Government itself, on pressing Occasions; and also for the sake of those British Subjects holding Office here, who look to a Return Home, after a moderate Number of Years, on the Savings of their Salaries, placed out at Interest in the mean time. But I can see no manner of Objection to the same Rule of Interest, not exceeding £12 per Cent., being established in the Metropolis, which the Government has thought proper to affix as the Limit to the Natives in the Provinces, and to which the British Subject is confined; and Justice requires that it should be done.
With respect to Caste; although many Wrongs are committed on this Account, or under this Pretext, principally with a view to decoy young Women from their Husbands, or to extort Money; and although the Judges are frequently applied to at Chambers for Redress by the inferior Classes, and have sometimes interfered in flagrant Cases by way of Advice and Recommendation to the Parties themselves, or by Reference to the Police, where the Attempts have been mingled with Breaches of the Peace; yet, after the fullest Consideration I can give to this difficult Subject in its Political and Moral Bearings, the best Mode of treating it appears to be in foro domestico, to which it should be left, though the Judges and Magistrates will still hear of it extra-judicially in Cases of gross Abuse. Rules have been promulgated, giving direct Cognizance of Matters of Caste to the Mofussil Courts, but, as I am informed, with little Judicial Result, and that little not of an encouraging Nature. Connected indeed with Conspiracy, Assault or the like, Caste is properly cognizable, even in the Supreme Court; but there the Abuse of it is connected with Crime. (fn. 6)
It is become quite a Matter of Course amongst the inferior Classes, and is gradually spreading upwards, where a Native has lost Caste, to repurchase his Admission for a moderate Sum. This is one of the Seeds of the Destruction of Caste. The Purchase is made amongst the lowest Classes for Eight or Ten Rupees; for a Man of some Substance, about 100 Rupees; for a Brahmin of good Rank, in fair Circumstances, about 1.000 Rupees; under particular Circumstances, and by very wealthy Men, 20.000 Rupees, or more, have been formerly paid; but the Price is more likely to be lowered from Time to Time as the Institution becomes more lax. There is however a current Notion that nothing can recover the original pure Brahmin Caste of a Peer-Ally-Brahmin, now a numerous and Money-getting Body, who formerly lost Caste by some Contamination under the Mussulman Government, which to this Hour the Hindoos most cordially detest. The Hindoos have a common Tradition among them, that all Men will ultimately be of one Caste.
A Hindoo Minor attains his full Age, and the entire Possession of his Property, at Sixteen. It is easy to believe, and the Fact is notorious, that at this early Age the Possession of Wealth within his immediate Power of Disposal attracts about him a Swarm of necessitous and greedy Dependants and profligate Associates, bent upon the Spoliation and Waste of his Substance. The Government long ago became conscious of this Evil, and have, I believe, in part rectified it, by a Regulation extending the Period of Minority to Eighteen in the Mofussil; but in Calcutta the old Rule remains in force. This always appeared to me a grievous Defect.
Sale of Infants Property for necessary Subsistence, &c.
By the Hindoo Law, in Cases of Necessity, for Subsistence of the Family, for Marriage Portions for Daughters, and also for Srâd Ceremonies on the Death of Parents, &c. and for other Religious Purposes, the Ancestorial Property of Infants may be disposed of, either by the eldest Brother of an undivided Hindoo Family, when of Age, or, in the Infancy of all the Brothers, by their Mother, or others of the Family in loco parentis, and, as some of the Authorities say, even by a Servant or friendly Stranger to their Blood.
There is no more frequent Source of Litigation amongst the inferior and poorer Classes than this. In a Country where there is no public Provision for the Maintenance of the Poor, (one of the noblest Attributes of England (fn. 3),) this Power seems to be founded in Necessity. But the due Exercise of it, resting as it must do upon local and cotemporaneous Facts dehors the Title itself, is very difficult, either to be proved on the one hand, or controverted on the other, at the Distance of a few Years, when only it is ever likely to be questioned; and whenever there is a Suspicion that the Power has been unduly exercised, the Contest generally involves in Ruin either an innocent Purchaser or the helpless Infant.
For the sake of both of these, it would be desirable that the Existence of the Necessity, especially in Cases of small Property, should be established in the first Instance before some proper Officer, (perhaps one of the Police Magistrates in Calcutta, or a Provincial Magistrate in the Mofussil, would be the best (fn. 8),) who should be authorized to inquire of it, and without whose Fiat no Title should be conveyed to a Purchaser so as to bind the Infant, and with whose Fiat the Purchaser's Title should be secure, unless upon Proof of his fraudulent Connivance with the real Vendor; for the Signature of the Infant is always obtained without fail.
The Judges of the Supreme Court have always been accustomed to receive and hear Pauper Petitions at Chambers; a Practice irregular indeed, (there being no Cause in Court,) but highly beneficial to the inferior Classes, to preserve them from the Plunder and Oppression of their greater Neighbours, both Native and British, but particularly the former; and Instances are said to have occurred heretofore of Summonses and summary Decrees of the Judges having been enforced by Imprisonment and other irregular Methods, no longer, if ever, practised. These Complaints, though preferred as Pauper Petitions, are very frequently preferred by Persons far removed from real Pauperism, to avoid the Expence of Litigation.
The Course which I have pursued is this. Having received a Petition in Writing from the Complainant, I shortly examine him, ore tenus, as to the Grounds of it, in order to ascertain the Probability of them, and to supply any Defects or correct any Errors or Inconsistencies apparent upon the Face of the Petition, which is often drawn up by inexperienced Persons; and I take a Note of his Answers on the Petition. This serves as a future Check. If no probable Ground be laid, or if the Complaint be stale, and its Staleness not satisfactorily accounted for according to the Subject Matter; or if it turn out that the Complaint has been before heard and determined upon a former Petition to a Judge in this or in any subsequent Stage of the Inquiry, the Petition of course is dismissed.
If the Petition be entertained, a Summons issues to the Defendant to appear on a given Day; (and this is perhaps the most objectionable Part of the Proceeding, that a Judge should issue a Summons without Authority, and without legal Means to enforce the Attendance required; there being no Cause in Court.) (fn. 5) If the Defendant do not attend on the Summons, I proceed no further, but refer the Petition to the Consideration of the Paupers Attorney, (an Officer appointed by the Court,) whose Duty it is to examine the Cause of Complaint, to hear the Party's Witnesses, (and, as it may be, to consult the Paupers Counsel on Matters of Law,) and thereupon to report shortly to the Judge, that the Party has or has not a good probable Ground of Action, and also whether he is a Pauper, the Criterion of which is, that he is not worth above 100 Rupees, besides his Bed and Wearing Apparel. If the Report be in the negative on either Ground, the Petition is dismissed; if affirmatively, the Judge admits the Petitioner to sue in formâ pauperis; and then, if the Defendant do not agree to refer the Cause to some proper Person, when required by the Paupers Attorney, (for which the Defendant himself may also petition the Judge,) or if it be of a Nature unfit for Reference, the Suit proceeds in regular Course.
If the Defendant obey the Summons and appear, I question him upon the several Grounds of the Plaintiff's Petition, in order to ascertain what are the real Points of Difference between them; noting down the Substance at least of his Answers. This is a sort of Pleading ore tenus, 'till from the several Answers of both Parties in Presence of each other they are brought to One or more distinct Issues, which I write down, and communicate to them; and if they agree upon the Facts, and the Difference is on Matter only of Law, the Assistance of the Pundit or the Moulvie, as it affects Hindoos or Mussulmans, is called in, and their Answer sometimes decides the Case. If the Difference be, as it more frequently is, on Matters of Fact, it is inquired of them, whether they agree to refer the Decision to any Arbitrator of their own choosing. If the Defendant acquiesce, then, unless it is a very difficult or complicated Question, I should not assist the Plaintiff with the Aid of Paupers Establishment, in preference to Arbitration. If the Matter be referred, it is settled in that Way. If the Defendant decline a Reference, the Petition is then referred to the Paupers Attorney, to inquire more regularly of the Facts, and report as before; or it may be first submitted on the Matter of Law to the Paupers Counsel.
But it not unfrequently happens, that on the Discussion before the Judge himself the Parties come to an Agreement to do such and such Things; and the Defect of this Mode of Adjudication is, that there is no Method of compelling the Observance, if either should afterwards swerve from his Agreement. I think therefore that it would be useful to enable the Judge, in such a Case, to direct a Note to be taken of any Agreement of the Parties before him, and to make it a Rule of Court, to be enforced by Attachment.
I should see no Objection to giving the Judge a Power to administer, if he thought fit, an Oath to such Parties as voluntarily offered themselves to be examined upon a Summons. The Statute 41 Geo. 3. C. 105. goes further, and authorizes Judges, to whom certain Petitions are referred in order to ground Proceedings in Parliament, to examine Witnesses on Oath.
Vide No. I.
These are some of the principal Emendations most generally called for, as far as my own Experience in such Matters has gone; but other Inconveniences occur from Time to Time which require to be remedied. As to the best Mode of applying the Remedy, I refer to the general Observations before submitted in another Paper, relative to the State of the British Population, so far as they are applicable.
Natives of India other than Hindoos, Mussulmans, and Christians.
4. There are Natives of India in Calcutta, neither Gentoos, so called in the Charter, (if by that Term be meant Native Hindoos of the Gentoo Religion, who alone, in common Acceptation, are here called Hindoos, in contradistinction to Mahometans,) nor Mussulmans, nor Christians, whose legal Condition is next to be considered. The Supreme Court, in addition to the British, which is their general Text Law, is directed to take cognizance only of the Gentoo and Mussulman Codes, as established among the Native Subjects. Hence, when Questions have arisen concerning the Laws of Marriage, Adoption, Title, Inheritance and Succession, as practised by others than Hindoos or Mussulmans within the British Territories, there has been great Difficulty and Uncertainty in dealing with them.
Since I have been here, Questions have arisen concerning the Inheritance and Succession of Sikhs in Calcutta, depending on the Questions of Marriage and Adoption, the Forms of which are different from those of the Hindoos in general; yet in that Instance the Difficulty was gotten over, by considering the Sikhs as a Sect of Gentoos or Hindoos, of whom they were a dissenting Branch.
The Case of Birmans and Avanese, who are Bhuddists, and Foreigners to Hindoostan, though approximating to the Gentoo Faith, would be more difficult.
But what shall be said to the Parsees and Chinese, the former of whom are beginning to spread to Calcutta from Bombay, and the latter are already become very numerous here, and are yearly increasing? What to the Javanese and others, all of whom are Aliens to the Hindoo Code, established in British India?
Inheritance and Succession of Foreigners settled governed by local Laws.
With respect to the Title of Land, it must follow the local Law of the Country, in whosoever Hands it is. If the Person last seised of Real Property within the local Jurisdiction of the Supreme Court be not a Gentoo, by which is understood here a Hindoo of the common Superstition, or a Mussulman, we can only recognize and apply to him the British Rules of Inheritance and Succession; and in this there seems to be no Inconvenience, for the Owner may always vary the Distribution by his Will. But what is to be done with the Adoption and Marriage and Divorce of Foreigners? The Law of Adoption has ever been local and special since Nations have ceased to be migratory. The Ceremony of Marriage, also, is a local Law throughout the World. If a Marriage be contracted within the Pale of the British Laws, by a Form not recognized either by the British, Hindoo or Mussulman Code, how is it to be recognized as conveying Claims to Property, for we have no Authority to go by any other Codes? The Hindoo Code, indeed, allows of all Marriages and Adoptions of Strangers domiciled amongst them, according to their own several National Forms; but the Supreme Court has only Authority to administer Hindoo Law as between Hindoos, not as between Strangers.
Q. Adoption, &c.
The Fashions of the several Races of Strangers domiciled here are too fixed to bend readily to local Customs; and the main Question will be, whether the British Government is desirous, by a public Recognition of their several domestic Customs of Marriage, Divorce and Adoption, amongst themselves, to encourage these Foreign Settlers in Calcutta, as the great Mart of Asia, and thereby forming a Link of Commercial Connection with their respective Countries. Each of these Knots of Settlers herd together, and are continually increasing, particularly the Chinese, most of whom are now stationary.
The Arabs, who are also numerous as Mussulmans, though Foreigners, are within the Letter at least of our legal Provisions. Of these, the Wahabees would seem to be only a Sect.
We have also a few Jews, who have probably, like their Brethren in England, some private Bond of Conscience, by which all Questions concerning their domestic Relations are settled in foro domestico; for we never hear of them in Court, except sometimes as hired Bail, so true are they to this Calling in different Parts of the World.
Portuguese and other Christians of Native or Foreign Extraction and Half-castes.
5. The Portuguese, Armenian and other Christians of Native or Foreign Extraction, together with the Half-caste or illegitimate Christian Children of British Fathers by Native Women, form a very considerable and important Class, which for several Purposes is out of the Pale of the British Laws, though not within the Hindoo or Mussulman Rule.
 How distinguished from European British Subjects.
In framing Statutes for British India, the Legislature seems only to have had in view Three Descriptions of Persons; British European Subjects, with their legitimate Descendants, and the Hindoo (or Gentoo) and Mahometan Natives of India. Throughout these Laws British Subjects and Subjects of His Majesty are Terms used in contradistinction to Native Inhabitants; and it is only under the Description of Inhabitants of Calcutta that the Supreme Court now exercises any direct Jurisdiction over the Persons of whom I am immediately treating. (fn. 7)
If a Native Portuguese or Armenian Christian have his Dwelling beyond the Mahratta Ditch, and commit a Felony, he must be tried by the Mofussil Judge, but by what Code of Law I am unadvised. Such Persons have not for many Years served upon a Jury in Calcutta; but previous to the Year 1780, Portuguese Catholics, as I am informed, did serve upon Juries, and a Gentleman of that Description now living tells me that he has done so. When sued in the Mofussil Courts, none of these Persons can appeal under the late Act 53 George 3. C. 155, the Right of Appeal being confined to British Subjects in the Sense I have stated.
This is not so much felt by the Armenians in general, who being in part an Eastern People in their Habits and Manners, (with the Exception of a few principal Persons here who have altogether adopted the European Costume and Manner of Life,) are little troubled about their Comparison with the British, though far from indifferent to it, and all of whom are respectable for their Integrity. But with respect to Settlers of Portuguese Extraction, several Generations of whom have been born and bred under the British Government, and some of whom have latterly been educated in England, many of them Men of Wealth and liberal Education, they necessarily feel their Want of Political Consideration in these Matters. A few of the Portuguese are Protestants. For the rest, if their Roman Catholicism were not thought to be an Obstacle to their sitting upon Juries before 1780, it is not obvious why it should be so now. But I rather attribute the Disuse of summoning them from that Time, to the Construction which was put on the Term British Subjects in the Charter of 1774. The present depressed Condition, however, of the Mass of the Native Christians of Portuguese Extraction or those who pass for such, would practically operate to exclude most of them from the Panel. Many used formerly to be employed as Clerks in the Offices of Government, and of the principal Merchants and Agents; but of late Years they have been superseded for the most part by the more ductile Hindoo Sircars or Writers, whose Labours are cheaper, and they have consequently fallen into great Depression and Poverty. They are still however a numerous Body, partially mixed in Blood with the Hindoos, and though ill-educated in general, many meritorious Individuals are to be met with amongst them.
[Sed quære, whether the Sheriff would not as well attend to a proper Selection, without an invidious Interference of Government?]
The illegitimate Offspring of British Fathers by Native Women, usually denominated Half-castes, are not the least numerous Class here, and are daily increasing and thriving. Some of these having been educated at Home as Gentlemen, and others having received the best Education this Country affords, can but ill brook their Exclusion from British Privileges, and in particular from the Jury Box. Many Persons I know, with whose Judgment my own accords, think that the true Policy of Government lies in making these, and all the other Persons of whom I am now treating, essentially British; and it is in deference only to other Feelings, still prevalent, but giving way, that I refrain from recommending the entire and immediate Measure. But in order not to nourish and increase a Spirit of Inveteracy, by shutting the Door to individual Merit, and for the Purpose of letting in and making your own the most deserving at least of this numerous Class, to share the Privilege and the Burthen of the Jury Service without creating any public Sensation, and while our own Juries are complaining much of the increased Burthen thrown upon them in consequence of the Sessions being holden Four Times in the Year, their Numbers being comparatively few, it might be an Experiment worth trying, to empower the local Government to admit so many Individuals, or such Classes, of this Description, as it should deem most fit and worthy, into the Roll of British Subjects liable to serve on Juries, out of whom the Sheriff should be enabled to return the Panels as usual.
I throw out this Hint for Consideration, even upon a more extended Scale at a future Time, as Circumstances shall point out.
Condition of Native Christians.
[That Measure, sound in Principle, seems to have been too hastily executed; but it demands more extended Consideration than can be given to it here.]
It is worth while to consider in what Condition these Persons are, if they be not British Subjects. They are Native-born, and cannot upon any common Principle of Justice be debarred from colonizing in their native and only Country. What is their Law of Inheritance, or Succession, or Marriage, out of the Precincts of Calcutta? Can the Hindoo or Mussulman Law be administered to them as Christians? The Attention of Government is seriously called to this Subject, which every Day may bring into open legal Discussion. Though the general Question of Colonization of British Subjects in India should be regarded in the same Light of National Policy now as it was before the East India Trade was thrown open, to the Monopoly of which it seemed to bear closest Affinity; and though Measures were now in train for assimilating to the British Government, or satisfying, the nascent Influence and Ambition of the great Landed Proprietors who are growing up, under the permanent Settlement, without any Counterpoise of British Territorial Power or of British Influence, except that of Office, every Day sinking in relative Wealth; still the Condition of these Persons, as the only Links in the Chain of popular Connection, will deserve more Consideration. Nor does the Difficulty rest here.
While pursuing my Inquiries with a view to this Subject, I received Information of a Fact curious in itself, and leading to important Reflections. A Gentleman of large Property and great personal Respectability, always considered here as of Portuguese Extraction, gave me this Account of his Family; that they came originally from Bacien, lying to the Northward of Bombay, and were Hindoos of the Brahmin Caste. How converted, whether by the Sword of the Portuguese, or otherwise, he could not say. One of his Ancestors took the Portuguese Name which he now bears, in consequence of the Portuguese General of that Name standing Godfather to that Ancestor at his Christening. When the Portuguese lost Possession of the Island of Bacien, the Family, then bearing their Portuguese Name, retired to Bombay, at which Place the present Gentleman was born. His Family is and always has been essentially Hindoo, and Natives of this Country, though long since become Christian. He himself was born within the Allegiance of The King, and knows no other Sovereign. He is an entire Stranger to Portugal, though bearing a Portuguese Name, which commenced in the Manner described, and has been conveniently continued for Purposes of Trade. The Family Connections however, with Hindoos, have been all along continued, and are still preserved, as far as the Difference of Faith has permitted.
Look at the Condition of this Gentleman, (which may be the secret Condition of many others,) and compare it with the British Laws in general, and with the Construction of them which has hitherto held at Home, and then say why he should not be deemed to be a British Subject, as he claims to be; and whether, as the British Laws framed for India are now and always have been understood, there is not great Difficulty in treating him either as a Hindoo or as a British Subject in regard to his Legal Relations here, or indeed in saying under what Legal Relation he stands here. He cannot be an Alien in his own Native Country and in that of his Ancestors.
Take another Instance. Suppose a Brahmin to reject Idolatry, and declare himself a Unitarian; and such an Instance has occurred; but still he says that he will not do any thing willingly to forfeit his Caste, considering it probably as the Nobility of his Country, which he is desirous to preserve; and therefore declines eating, &c., with us, though he invites Company to his House and sits at the Table with them. (fn. 9) Before he made public Declaration of his Faith, he consulted, as it is said, upon this Point of Caste with his Family, and with Forty others of the principal and most respectable of his Neighbours and Friends, who promised to uphold and continue their Association with him; and he added, that if the other Brahmins were satisfied with this, he should take no further Steps to sever himself from them, or to influence others, who, in case of Extremity, would, he thinks, follow him in his entire Separation, to a considerable Number. (fn. 10)
This is a novel Attempt, and if successful, which remains yet to be proved, may be followed by important Consequences. A Brahmin certainly regards his String, independently of Religious Motives, as conferring Worldly Distinction upon him: it is a Mark of high Descent, to which he naturally clings. In proportion as this Feeling gains Strength and Encouragement, the other Feeling will abate, and be melted down.
What is the legal Condition of this last-mentioned Personage? The Distinction he is attempting to establish seems, if he succeed, to leave him essentially Hindoo as to Customs and Laws, respecting himself and his own Rights, and so far it differs from the antecedent Case. But it is certain that great Difficulties must hereafter arise in the Civil Relations of a professed Convert to Christianity. Could such a Person maintain a lawful Plurality of Wives, on which the Legality of his Issue, on a Question of Inheritance, must depend, particularly in case of a subsequent Marriage, depending as it does on the Legality of the Marriage Rite, which the Hindoo Law (though it recognizes the Marriage of a Stranger according to his own National Form) has not yet recognized as between Hindoos, if not performed according to its own Rite?† Is such a Person to be deemed a Hindoo in Point, of Law for one Purpose and not for another? His Will could not be proved in the Supreme Court, which can only grant Probate of the Will of a British Subject, as elsewhere explained. Would the Pundits consider a professed Christian Convert from their Faith as a Gentoo for any Purpose? Or is he to lose the Benefit of the one Code without acquiring that of the other?
[Perhaps this had better be left to the gradual Construction of the Courts.]
I submit to the Consideration of Government, that their protecting Hand should be so far extended to Persons of this and the like Description, as to make Provision that no Native of India shall forfeit any Rights of Property or personal Benefit, on account of his Profession of any particular Faith or Doctrine, which he would be entitled to and claimed by any Law of Title, Grant, Inheritance or Succession established in India, which was binding on the Person or Persons last seised or possessed, or on those from or through whom they claimed; and recognizing the Marriages of all Descriptions of Persons in the several Forms acknowledged and practised according to each Faith, and giving Probate of the Wills and Administration of the Effects of all Christians within the Jurisdiction of the Supreme Court.†
This, with the general or with the special Power before proposed respecting the Admissibility of Christians in general to serve on Juries, would smooth most of the Difficulties that are prominent in the Moral and Judicial Native Horizon.
But it must be observed, that so long as a British Subject, in the Sense before mentioned, is prohibited from acquiring Land in this Country, it must be injurious to any Person of Native Extraction to be declared generally a British Subject, unless an Exception be made in this respect in favour of Native-born Subjects in their own proper Country.
Points of immediate Necessity.
At all events there are Two Points to which the immediate Attention of Government is called, for the whole of this Fifth Class of Persons, if it should not be thought more politic and advisable at once to declare them British Subjects, saving to them the Right of holding Land, as Native-born, and of not being sent to England for Trial, &c.
Probate of Wills and Administration.
The one is to enable the Supreme Court to grant Probate of their Wills and Letters of Administration of their Intestates Effects. By the 22d Clause of The King's Charter of 1774, the Power of granting Probate and Administration is expressly confined to British Subjects only, and extends not even to Inhabitants of Calcutta; and these Christian Natives (other than such as are born of British Parents in lawful Wedlock) are not deemed to be British Subjects, as I have had Occasion to remark, within the special National Sense of the Charter and of the several Acts of Parliament. However, many of them may have been in the habit of applying, for this Purpose, to the Ecclesiastical Side of the Court, which has passed sub silentio. It must at least be admitted that there is great Doubt upon the Subject. The Inconvenience of this is too obvious to be insisted upon, in case any Dispute should arise upon the Grant of Administration to such a Person, particularly if the Question arose in any Foreign Court. This Power ought therefore to be supplied without Delay, with a retrospective Clause confirmatory of passed Acts, even if it might not be done by a declaratory Law; for certainly their Exclusion could never have been contemplated. And if it were thought proper to put all this Class of Persons at once upon the Footing of British Subjects in all respects, if born within the British Dominions in India, it might be done by a general declaratory Law, that all Persons born within the British Dominions in India, and domiciled in Calcutta, being Christians, have been and shall, so long as they are thus domiciled, be deemed to all Intents and Purposes to be British Subjects within the Meaning of the Charter of 1774, and of the several Acts of Parliament passed for the Regulation and Government of the British Dominions in India; saving to them all Rights of holding Land as Native-born Subjects, and exempting them from being sent to Great Britain as unlicensed Persons, &c. or by way of Trial and Punishment.
This Provision is exclusive of the Observations elsewhere submitted as to Native Hindoos, Mahometans and others, within the local Jurisdiction of the Supreme Court.
Contracts for Trial by the Supreme Court.
[No Person by his private Contract can give Jurisdiction to a Court which has it not by Law.]
The other Point for present Consideration is, that these Christians of Native or Foreign Families settled here, and Half-castes, cannot for the same Reason avail themselves of one of the most beneficial Clauses in the Charter of the Supreme Court, without which few can dare to enter into Contract with any Native or Foreigner living beyond the Jurisdiction of the Supreme Court. The 13th Clause states that the Court shall have Power and Jurisdiction to determine all such Causes, &c. against every other Person or Persons whatsoever, Inhabitants of India, residing in the said Provinces, &c. of Bengal, &c., upon any Contract or Agreement in Writing entered into by any of the said Inhabitants with any of His Majesty's Subjects (fn. 11), exceeding 500 Rupees, when such Inhabitants shall have agreed in the said Contract, that in case of Dispute the Matter shall be determined in the said Supreme Court. Instances have occurred where, for want of an Extension of the Privilege, Portuguese and other permanent Christian Settlers of great Respectability, having had Dealings with Natives or Foreigners upon the Strength of their entering into written Contracts to answer for any Breaches of their Engagements in the Supreme Court, have been ousted of their Remedy by the Swindlers withdrawing themselves out of the local Jurisdiction of the Court as soon as they had obtained their Money or Goods, and setting them at Defiance. It may be said that the Creditors have a Remedy in the Provincial Courts; but such is the State of Business in those Courts, the uncertainty of the System of Law, and the Delay and Vexation of a protracted Attendance, that many Persons prefer to abandon their just Demands rather than pursue them there; an Evil which must naturally increase with the increasing Population of the Indo-British Dominions, and is much aggravated by the accumulated Arrear of Causes in most of those Courts.