Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
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Appendix 3 to the evidence of Sir Edward Hyde East Bart M.P.
Defects of Justice.
Origin and Progress of Mofussil.
When the Mussulmans conquered Hindustan, in order to secure and strengthen their Conquest, they wisely established, having Power to do it, their own Courts of Justice, with Laws, whether of Mussulman or Hindoo Origin, to be administered in their own Language, which was the Persian. As they acquired Proselytes amongst the Hindoos, the Hindoo Code, still preserved by the conquered, naturally crept into their Courts again, or was partially retained at first from Policy.
The East India Company, having afterwards acquired the Dominion of the Provinces from small Beginnings, was too weak for some Time to attempt the same Innovation; and when it grew stronger, it was still embarrassed by holding its Dominion under the Sovereignty, more or less nominal, of a Mussulman Prince; and before it was effectually emancipated, adverse Interests and Opinions had grown up in its own Body, and amongst many of its Servants, entitled to Weight from their Stations and Characters, who long cherished the Hope, as long disappointed by Experience, of ameliorating the Mussulman Establishments by the Help of Mussulman Instrumentality. From these and other Considerations of a cautious Policy, the Company has preserved, as nearly as the British Character could be brought to bear it, the same System of Judicial Administration which it found conveniently established to its Hands by the Mussulmans, its Predecessors in the Government, only new-modelling some of the Forms, and modifying or repealing a few of the most obnoxious Rules and Practices. The Criminal Code indeed appears to have already undergone a substantial Reform and Amendment, though still defective in Parts, particularly in the too great Generality of Criminal Charges.
At this Day, in addition to the Two distinct and original Codes of Law which have prevailed in India, the Mofussil Courts administer a Third, now growing up, compounded of new Regulations promulgated from Time to Time by the British Government, and also of partial Grafts, by Construction of their own, from the English, upon the Hindoo and Mussulman Laws, which the extreme Uncertainty and Contradictions of both the Native Codes render easy enough in very many Instances, if it were done upon a judicious and consistent Plan, by those who have a general Knowledge of Judicial Principles, and of the Peculiarities of the Three different Codes.
Embarrassment of the whole to the inexperienced.
This State of Things must of Necessity engender much Embarrassment and Confusion, particularly to young Beginners; for in addition to the loose Dogmas of the Mussulman, and the over-refined Niceties and conflicting Expositions of the Hindoo Code, a young Judge, untrained in any systematic Judicial Education, has also to learn upon what Points and to what Extent the Principles of the English Law have modified, or the modern local Regulations have wholly abrogated, the original Texts. This is a Knowledge that must require deep Application and practical Experience; and where are the Fountains of Knowledge to be found, or the living Teachers to whom the Scholars can have Access?
The best Method I believe of escaping out of this Labyrinth, in which the Body of the People, the Native Pleaders, and Junior Administrators of the Law, are lost, though a few of the best informed Judges may discover their Way, would be to give them the general Body of the English Common and Statute Law of Evidence (fn. 1), of Contracts (fn. 2), of Trespasses, Costs and Damages, together with the Substance or real Sense of all Manner of Pleadings, stripped of their Technicality, according to every Subject Matter of Complaint; so that distinct Issues only may be presented for Judgment, and thereby much Time and valuable Labour of the Judges be saved; and also of all Criminal Matters, together with the Substance of Pleadings therein, with such necessary Exceptions of a local Character, in respect to the English Criminal Code, as the Judges of the Mofussil Court of highest Criminal Jurisdiction should deem inapplicable to this People and to the Institutions of the Country.
It would be better to leave the Power of rejecting prior statutable general Enactments, not specially extending to India within the Limit of obvious Necessity, in their Hands; and by Degrees, as the Occasions happened, and Experience grew, it would be well understood what Laws and Statutes did or did not apply to the local Condition, Safety and Benefit of the People, consistently with their reserved Institutions. From all the Information I can procure, I believe that the Change would be highly acceptable to the Natives.
Retaining Native Laws of Title to Land, Inheritance, Succession, Marriage, Adoption.
I would retain the Hindoo and Mussulman Text Laws of Title to Land, of Inheritance and Succession, to which the respective People are accustomed; and also their Rules of Marriage and Adoption. (This is in effect to retain every Law which is in its Nature essentially local, engrafting only on it the well-tried and sound Principles of Evidence and Rules of Construction derived from a more perfect and highly cultivated System.) The Modes of administering these, which are at present very loose, would be gradually defined and regulated by the Construction of the Courts, as Cases of Doubt and Difficulty arose; and above all, by applying the Rules of Construction of the English Law to the whole Body of administrative Justice, including even the Hindoo and Mussulman Text Laws of Title, Inheritance, Succession, Marriage and Adoption, the whole would soon be amalgamated into one consistent and intelligible System (fn. 3) while in every Case of Doubt there would be some common regulating Principle, either direct or cy pres, to resort to, derived from the English Law, which would be the leavening Principle of the whole Mass.
As Matters now stand, no Man can previously tell, in a Case of Doubt, whether the Judge will look for a Solution of it to any Principle derived from either of the common Codes, or from a Modification of his own, derived from all or any of them.
Native Laws of Title, Inheritance and Succession.
The Laws of Title, Inheritance and Succession being in their Nature purely arbitrary, it is as easy and better to adopt those which are already familiar to the People than any other; and there would be no manner of Difficulty in engrafting the Hindoo Rules of Title and Inheritance, for all the Sons to take equally, in the Place of the eldest Son, as by the English Common Law; or for the Widow or Widows, in lieu of Dower of One Third, to be maintained, as by the Hindoo Law, by all the Sons while living together as one undivided Family, or, in case of Severance of the Sons, to have an equal Share with them partitioned to such Widow or Widows, in like manner as an English Widow would have Partition in the first Instance of her Third, or her Share of the Personal Property of her Husband dying intestate.
The Successors to Personalty are as well known in the one Law as in the other; and the same Remedies are now administered by the Supreme Court to Natives in all Cases as at Home to British Subjects, for securing to them their Rights and vindicating their Wrongs.
The Law of Adoption may be readily engrafted, upon Proof of certain Ceremonies performed; and when adopted, the Son inherits in like manner as if he were born in Wedlock at that Time in his adopting Family, with all incidental Consequences, amongst others, losing his Heritable Blood in his natural Family.
The Rules of Caste should be left to be decided as they now are at Calcutta in foro domestico, and would only be collaterally recognized; as where an Assault was aggravated by an Act offensive to Caste, when it enhances the Damages or Punishment.
There exists already under this Government a peculiar Code of Revenue Laws, which, having been found effectual and beneficial in general Practice, would of course be in the first Instance preserved, improving with Experience and Political Wisdom and Justice.
Advantage of the well-tried and well-practised general Principles of the English Law over other imperfect Systems.
The Benefits to be derived from this Course would be immediate and extensive, in proportion to the Knowledge of the English Law professed or to be acquired by the Administrators; for the artificial and local Parts to be retained from the Native Codes are few and simple, and of easy Attainment to Men accustomed to such Pursuits; while the uninformed would at least know the Quarter to look to for Principles to guide their Judgment in doubtful Matters, where now they have no known general Guide or Compass of any kind to steer by.
In truth, this is no new Experiment, but one which has been tried for now above Fifty Years, and has succeeded. Upon the Establishment of the Supreme Court at Calcutta under the Charter of 1774, the Laws of England were in general transferred hither; but the Statute 21 Geo.3. C. 70. S. 17. 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 Laws and Usages, and the like between Gentoos; and when only one of the Parties shall be a Mahometan or a Gentoo, by the Laws and Usages of the Defendant. No Difficulties have been felt in adjusting the Native Laws of Title, Inheritance, Succession, Marriage and Adoption to their corresponding Places in the English Code; (and none other Native Laws have ever come in conflict with the English (fn. 4), though the Forms of the latter have bent in certain Cases (fn. 6) to the Prejudices of Caste;) while the superior Value of Native Property submitted to the Cognizance of the English Code so modified, compared with the like Property under a different System, speaks more than Volumes can do on the Subject. I have been informed by Persons of Intelligence that the Hindoos of the Upper Provinces had lately expected the Extension of the English Mode of administering their Law, as it has prevailed in Calcutta, to all Parts of Hindustan, and were much disappointed that it did not take place.
Mode of administering the Criminal Code.
The only Difficulty I am aware of would arise from the British Mode of administering the Criminal Law, rather than from the Law itself, a Difficulty however which already exists in full force. (fn. 7) British Juries could not be found out of the different Capitals of the Indian Governments; and a Jury of Natives in the Country would not, in their present Condition, be practically wise. (fn. 11)
But do not reject a partial Good because the Entirety cannot be obtained, or cannot be obtained at once. Let the Mofussil Magistrates in the Provinces continue as before to administer the Laws, Criminal as well as Civil, (subject, however, still to the Revision of the superior Tribunals in Cases of Weight, which the Measure of Punishment would sufficiently define for all practical Purposes,) until present Conviction or growing Experience shall point out the Necessity of an improved System and Administration; for let the System be what it may, any substantial Benefit to the Subject can only be looked to from the Employment of Persons well trained and instructed in Judicial Knowledge and Experience.
[And also subject to any local Ordinances of this Government made or to be made.]
The general Measures of Punishment of the English Criminal Code would of course be adopted, if not already in use, unless in Cases where a special Provision has been made for India; and in lieu of Transportation, which is hardly applicable to many Parts of the Country without great Inconvenience and Expence, and which is often found either disproportionably heavy or nearly inoperative to its Purpose, Sentence of Imprisonment might be passed for any Time not exceeding the Periods fixed for Transportation, and with or without hard Labour, in or out of Doors, and personal Chastisement, as might be deemed expedient.
Every Criminal Charge to be in Writing and precise.
But a precise Charge in Writing to be preferred by the Accuser is never to be omitted; and the substantial Form of the English Indictment (freed from its local Peculiarities and Technicality) has the pre-eminent Merit of simplifying every Charge, and rendering it single and distinct. As the Law has been, and it may be still is, administered in the Mofussil Courts, the Charge is most general and multifarious, so that the accused cannot certainly know from thence what he is called upon to answer, and a Man may be convicted of an Offence quite different from what he supposed. This leads to excessive Perjury and Injustice.
Political Judicial Policy.
The Policy appears obvious, of weaving the British into the Native Laws in all general Points not purely local, and of retaining the Direction of the Judicial Administration in British Hands, as much as is consistent with an economical, and, what is no less essential, with an expeditious Decision of every Matter, according to its Frequency and its Importance.
If further Experience be wanted, and more Caution necessary, let the Experiment be gradually tried in small Districts adjoining to Calcutta and the other Capitals, where Supreme Courts are or may be thought proper to be established, extending or contracting the System as it shall be found to answer beneficially in Practice.