Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
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Die Jovis, 11 Martii 1830.
The Lord President in the Chair.
Sir Ralph Rice is called in, and examined as follows:
What Situation have you filled in India?
I was Seven Years Recorder of the Prince of Wales Island, in the Straits of Malacca, which is a King's Court; and I was Three Years a Puisne Judge of the King's Supreme Court at Bombay.
Which in the first Instance?
I was Seven Years Recorder of Prince of Wales Island in the first Instance.
Have the goodness to describe the Nature of the Jurisdiction of the Court over which you presided as Recorder of Prince of Wales Island?
I believe it is similar to the Jurisdiction of the Court of King's Bench, Court of Chancery, the Court of Exchequer, and the Ecclesiastical Courts, in this Country.
It comprises all the Jurisdiction of all those Courts?
Yes, it does; the same as those at Calcutta, at Madras, and Bombay; I believe with very slight Variation, if any.
What was the Extent of the Jurisdiction exercised by that Court?
It was over the Island and the opposite Shore, which was then annexed to the Island; and I should remark, there has been an Alteration in the Court of Prince of Wales Island; and in consequence of Malacca and Sincapore being joined to Prince of Wales Island, the Jurisdiction of the Court has been co-extensive with that of the Government.
Can you state at all, generally, what the Amount of the Population was, or is now, which fall under the Jurisdiction of the Court?
The Population of the Island, while I was Recorder, was considered to be from Fifty to Sixty thousand; it continued to increase rather while I was there.
What Proportion of that was European?
The Europeans residing there were very few; I think very seldom, independent of the Military, above One hundred; I mean with regard to the Europeans residing. One of the Difficulties arising out of that Jurisdiction was, not from the resident Europeans, but in consequence of numerous Ships which came there; so that the number of Europeans resident would be no Criterion of the Duty attached to the Jurisdiction.
What Description of Natives generally, as to Religion and Country, lived under the Jurisdiction of the Court?
I do not believe there is in any Part of India or the World so mixed a Population.
Of what Religions, generally?
Of all Religions, I think, which there are in India.
Did no one prevail in proportion to the rest?
I think that the most valuable Part of our Population were the Chinese-both as Merchants, Artisans, and Labourers.
Of the Remainder, can you state in what degree the Mohamedan or the Hindoo Religion prevailed?
The Mohamedan were a numerous Class of the Malays, which were rather a distinct Population; they were generally Labourers in the smaller Departments of the Country, such as Fishermen and Fruit Gatherers, and Fruit Planters; and in the other smaller Departments there were a Number of Arab Merchants, who were also settled there, and carried on a considerable Trade to different Parts, both to the Persian Gulf, and also on the Coast of Sumatra, and also in the Eastern Seas. There were also a Race, generally known by the Name of Chulieis, who were a fluctuating Body, who came generally at one Period of the Year, some remaining, and some going back at the End of the Year to the Coast of Malabar, and also to the Coast of Coromandel; they were known in the Island of Penang as what are called the Chuliah People. The Hindoos, who were not numerous, principally, I think, consisted of those who had established themselves after the Expiration of the Period of Transportation, or their Descendants; for Penang was the Place to which the Courts of India transported their Felons, and Persons whom they had the Power to transport, in the same Way, or nearly so, as in this Country they are transported to New Holland. The Number of Convicts was generally from 1,500 to 2,000 in the Island. There was also a Regiment of Sepoys there, many of whom were Hindoos.
Did the Court administer the Law in every respect to the whole of this Population; or was any Part of the Law, with respect to Succession and Contract, excluded?
The Jurisdiction of the Court there was co-extensive with that of the Government; differing in that respect from the other Presidencies of India.
And comprising every Species of Interest?
Every Species of Interest that is almost possible to be conceived.
As it respected the Officers, what was the Constitution of the Court?
The Governor and the Two Members in Council were united with the Recorder.
What was the Nature and Character of the Practitioners before the Court?
There were no Barristers at all; and only some Persons who were not regular Attornies who were admitted to practise there.
Were those Persons Europeans or Natives, or both?
In one Instance a Person was an European, and another, called in that Country Half Caste, or Half Blood-an European Father and a Native Woman. The Property in litigation was in general very small, though very often the Question was of a complicated Nature.
Did you find that the different Classes of Native Population acquiesced, without Complaint, in the Principle and Decision of the Court, founded, as this has been, upon those of the English Law?
They were not founded upon the Principles of English Law, because by the Clause in the Charter we were bound to administer the Law to every Part of that mixed Population according to their respective Laws and Customs.
You conceived yourself then under the Necessity of making yourselves acquainted with any Branch of the Eastern Law as it applied to the particular Persons whose Causes were under Consideration?
We were bound to do it in what I call the Civil Law, that is, the Dispute between Man and Man. With regard to the Criminal Law, there is something a little more extensive than in our Charter. We were to respect the Customs of the Natives in the Criminal Law, but not to be altogether governed by that Law.
What Means had the Court recourse to for the Purpose of making itself acquainted with the Principles of the various Systems of Law which it was called upon to administer?
With regard to the Chinese Law, we looked to those Books we had Access to, and we called in the principal, the head Men, among the Chinese, to assist us; with regard to the Mohamedans, we always had the Advantage of the Koran, and different Interpretations upon it, and had there many Persons conversant with the Law, Cazies, among their sacred Priests, to assist us.
Do you conceive that upon the whole the Judgments so given were thought satisfactory by the Parties whose Interests they affected?
Having been in that Situation where I was left by the Practice of the Court to administer the Law conclusively, perhaps it would be very difficult for me to say whether they produced Satisfaction; but if I might judge from the Mode in which I was treated when I left, after I had been there some Years, I am bound to say so.
No Complaints then were made on the Part of the Natives with respect to any supposed Mistakes in Decisions?
No; it appeared to me quite the reverse; but, as I said before, it is very difficult for me to say, and I might very likely be deceived.
Were considerable Questions of Property decided by the Court under these Circumstances?
No, I think not. There were some Questions of considerable Property; but generally speaking, they were for very small Sums. The important Part of the Business, and which I considered the most heavy upon the Judge, was the Criminal Part, where the Executions of Criminals were exceedingly numerous, arising out of the very singular Nature of the Population.
State what those particular Circumstances of the Population were that gave rise to that necessary Frequency of Capital Punishments?
I think principally arising from the mixedNature of the Population, and the very uncivilized State in which the opposite Coast was.
What Description of the Natives, subject to the Jurisdiction of the Court, most frequently rendered themselves subject to these Punishments?
I think Malays. During the Seven Years I was there, in that Population there were Six Executions. During the Time I was in Bombay, where the Population was 150,000 at least, there was only One Execution during Three Years, and that was of an English Serjeant. It is for that Reason I mention that I consider the Number of Executions large.
Were the Chinese, as compared with other Descriptions of Inhabitants, more or less criminal Offenders?
I think in Thefts they were quite as numerous as other Classes, but not, I think, in Offences arising out of Acts of Violence.
Can you state the Average Duration, or nearly the Average Duration, of Suits in the Court during the Time you resided in it?
I think it would be almost impossible to draw any Average of the Duration of Suits; they were generally, and almost always, settled almost every Term, which is Four Times a Year.
So that no great Arrear existed?
There was never any Arrear, unless it arose from the Parties not being prepared to go on; never from Want of Time.
Can you state the sort of Expence attending Suits in the Court?
The Fees of the Court are established; they are now in Print, and were, I believe, reckoned generally small, but I think quite equal to the Nature of the Suits out of which they originated.
Does it occur to you that any Amelioration could be effected, either in the Constitution of the Court, or the System of Law which the Court is directed to administer?
I think it would be very difficult; there must necessarily be in that Jurisdiction a considerable Degree left to the Discretion of the Person who is to administer the Laws.
Have you any personal Knowledge of Sincapore?
I was there at its original Establishment, and very shortly before I left for England; but probably, not being there officially, I am not able to speak upon it.
At what Period were you Recorder of Prince of Wales Island?
I went in 1817, and left it in 1824.
What is the Date of the Charter?
I think it was in 1807. Sir Edmund Stanley was the first Recorder. My immediate Predecessor was Sir George Cooper. The Government was established in 1805 as a Presidency. They found they had no Jurisdiction; they were inundated with Felons; and they were obliged to get a Court established, after very great Difficulties attending the previous State.
What was the Amount of the Native Population of the Island previously?
Very small. I understood there were not more than Three or Four hundred. Persons on the Island in 1780. When Mr. Light first established it there were very few; I have always understood that there was a very small Population at that Period. It was attached to the Quedah Territory.
Is the Chinese a resident or a fluctuating Population?
They reside in general for a great many Years, but some of them come and return; they go backwards and forwards. Their Inclination is always to return to their own Country. They generally send their Children, when they can afford it, to be educated there.
Is Prince of Wales Island now considered as a Place of Transportation?
It is, for the Felons from Bengal, Madras and Bombay; both from the King's Courts and Circuit Courts.
What is the Number of Transports generally?
I think their Numbers were generally from 1,500 to 2,000.
What Proportion did they bear to the rest of the Population?
The Population fluctuated from Fifty to Sixty thousand during the Time I was there.
Do you conceive the Use of that Settlement as a Place of Transportation is an Impediment to its Improvement in other respects as a Place of Commerce?
No, I do not indeed; I think when they are under good Management, as they generally are, they were beneficial to the Island.
In what were they employed?
In the making of Roads; in the assisting making Public Buildings; and those of the best Character were allotted out as the Under Servants of different Establishments, for which certain Sums of Money were paid to the Company.
Has the Number of them increased?
I think while I was there, from the Returns made to me, it was generally kept about the same-from 1,500 to 2,000. Application was made to the Government in my Time, to allow a certain Number of Convicts to be attached to the Establishments. They used to be in the first Instance without Payment, but latterly there was a Payment made to the Government. I had Ten. There were some which were paid for, and some which were not, latterly.
Has the Governor there any Power of permitting them to return on good Behaviour. They of course might and did return when the Period of their Transportation expired?
No, I believe none; and I am not aware that there was any Communication ever took place between the Government of Penang and the other Governments with regard to any Returns.
Do you think it desirable there should exist such a Power on the Part of the Supreme Authority of the Island?
I cannot anticipate any Objection to it; but it would require a Knowledge from whence they came, and how they were connected with the Decoits, and what sort of Persons they were; for though they might behave very well at Penang, they might be Decoits, or might have been connected with the Polygars, and might return to their old Habits if they returned to their own Country. The Polygars were sent back while I was there, having been there a considerable Number of Years. They were Political Offenders.
You stated that you were bound to administer the Law to the different Classes of the Population according to the Principles of their own Laws; did that apply to all the fluctuating Part of the Population-the Chinese and others living there?
Yes, it did. Whenever I found Two Chinese differed, and wished to have any thing decided according to their own Law, and I could not learn it from my previous Practice, I called in the Heads of their own Tribes to assist me in endeavouring to get at it; -with regard to their Burials, their Marriages, the Education of their Children when they were Orphans of the Court, and a great Variety of Things.
What is the prevailing Religion among the Malays in Prince of Wales Island?
The Malays are all Mohamedans, as far as we know their Religion. It is difficult in some of the Eastern Islands to say what their Religion is; what the Batta People are, for instance, in Sumatra; but we have Reason to believe that all the Malays are Mohamedans.
Do the Governor and Members of Council take their Seats in the Recorder's Court on ordinary Occasions?
They do not; they come in very little, except on the first Day of the Sessions. Sometimes one of them would attend during the Sessions, and was of great Assistance to the Recorder, particularly in regard to some of the Customs which had prevailed before.
The Members of Council preside in different Parts of the Settlement?
They do now; but during the Time I was there Malacca and Sincapore were not attached to Prince of Wales Island. Since that there has been an Alteration made; Malacca and Sincapore have been annexed to the Government, and the Jurisdiction of the Court, I believe, made by a new Patent co-extensive.
Does the Recorder now go at stated Periods to Sincapore to administer Justice?
I believe he does; but at present they have not got into full Practice upon the Subject, and there has been some Alteration made.
Had you the Jurisdiction of the Admiralty Court?
No. An Application had been made for the Admiralty Jurisdiction, and was about to be granted, and I believe it is in the present Patent; but during my Time we had no Admiralty Jurisdiction.
Were there no Cases of Piracy?
Yes, a great many; and it was very much wanted there.
How were those Cases disposed of?
The Cases subject to the Admiralty Jurisdiction were sent up to Calcutta, the Court not having the Power to interfere in any way.
Did you observe, among the various Classes of Persons who made up the Population of Prince of Wales Island, a peculiar degree of Partiality for their own Laws and Usages?
When it suited the Interests of the Party, always; but when they had no Interest I think they were very easily managed according to our Views of right and wrong.
Did you observe, on the Part of any of those Classes of Persons, a more remarkable Adherence to their own particular Laws and Usages than any other?
No, I cannot say that I did.
You do not consider, in that respect, the Hindoos as distinguished from the other Inhabitants?
They were so few Hindoos, except the Military, of any Rank or Consequence, that probably this Case would not have arisen. They were principally Convicts or Seapoys, or Persons who had originated from those Persons, where their Prejudices were not equal to those supposed to exist to a certain Extent on the Continent of India.
Have you Reason to think that the Chinese accommodate themselves easily to a Change of Circumstances?
I think upon all Mercantile Questions particularly so; indeed I do not know that their Mercantile Views are very different from ours; they are admirable Merchants, most excellent in every respect, so far as I was enabled to judge of Merchandize, both as to Accuracy of Account and Minuteness in their Speculations.
Had you any inferior Jurisdictions at Penang?
We had what in this Country would be called a Court of Requests, where a Person appointed by the Government tried Causes under a certain Number of Dollars, from which there was an Appeal to what was commonly called the Recorder's Court - the Court of Judicature.
With that Exception, the Recorder's Court was the only Judicature in the Settlement?
Were there many of those Courts of Request?
No; only One. I believe there has been One established since I left, on the opposite Coast. It was wanted, but it was not enforced before I went; it was agitated about that Time; whether it was commenced just before or just after I left I cannot say.
In Cases of Suits between Persons following different Laws, was there any Rule according to which Law it should be decided?
I never was driven to that during the whole Time I was there; but I should have adopted, unless I was otherwise bound by the Charter, the Rule which prevailed in India, to let the Law of the Defendant prevail. Where there were Questions or Squabbles among the Parties, it was generally among Parties of the same Caste. It was on their own Customs, as far as we could obtain a Knowledge of them, that the Cases must be decided.
Did you remove immediately from the Recordership of Prince of Wales Island to the Supreme Court of Bombay?
I did, in 1824.
Will you state what was the Constitution of the Court of Bombay while you were a Member?
Sir Edward West was Chief Justice. I was the Senior Puisne Judge, and Sir Charles Chambers was the Second, by the Charter which then formed the new Court.
Of what other Officers was the Court composed?
There were no Officers of the Court, except the Registrar and Persons of that Description.
What were the Practitioners?
The Advocate General and Eight Barristers, and I think Eight or Ten Attornies.
The Barristers of course were European?
What were the Attornies?
The Attornies were also Europeans, I believe, without Exception; indeed I am sure there were no others when I was there.
Were there not Native Agents employed by the Attornies in carrying on the Suits?
There were, as Interpreters, and assisting them in the Office; but I am not aware that there was any which the Court recognized.
Was it to the same Extent, that you may have understood, that the Custom of employing Native Assistants to Attornies existed at Bombay as at Calcutta?
I never knew that there were any recognized by the Court. That there are Natives who are attached to the Office, who mix more with the Natives, and bring Clients to the Attorney's Office, I believe to be the Case, perhaps in Madras as well as Calcutta; but there are no Persons recognized by the Court at all, and therefore it is a Matter more of Report than of Knowledge. Many Gentlemen who come out as Attornies to Bombay or Calcutta are totally unacquainted with the Language; they have Native Assistants in their Offices, and they, in proportion to their Means of mixing among the Natives, bring Clients to the Offices. I speak as to this more from Report than from actual Knowledge.
What was the Jurisdiction of the Court at Bombay?
It was confined generally to the Presidency itself- to the Island of Bombay; it extended also to all the Europeans in the other Parts of the Presidency or the Government.
Did you administer both the Criminal and the Civil Law?
Yes; and there was also an Admiralty Jurisdiction; but the Admiralty Jurisdiction was exercised by the Chief Justice.
Was the Criminal Law administered as the Criminal Law of England?
Exactly, according to Form and Substance. I should say according to the Law of England when the first Charter was originally granted to Calcutta, and not the Law of England as it has been since varied and modified by subsequent Acts of Parliament. Such Acts do not extend to India, unless India be specifically mentioned.
You do not consider then that any Alteration whatever in the Law of England at Home can affect the Administration of the Law in India, unless specially provided?
No; that has been so considered.
With respect to the Civil Law, on what Principle was that administered?
The same as the English Law; but no Alterations have taken place which have taken place in the Civil Law in this Country, unless as altered by Act of Parliament, or by Rules and Regulations which they have the Power of making in that Country, subject to their Approval in this.
Is the Civil Law applied to the Interests of the Natives, without any Exception as to the Law of Succession and Contract?
By the Charter, the Natives of Bombay, the Mohamedans and Hindoos, are entitled to have all their Questions of Civil Right tried by their respective Law. With regard to the Portuguese who are there, they have the Law administered, where it differs, according to Civil Law, which is commonly called the Civil Law which existed under the Portuguese Government; but I never knew a Case to occur in my Time as to the Portuguese.
When you state that the Court administer the Civil Law of England, you mean in the Cases of English European Subjects only?
Quite so in that respect according to the Words of the Charter. There has been a great Difficulty with regard to the Parsees, who are a very opulent Body of Men there; but they having adopted, generally speaking, the Laws of the Hindoos, they have been regulated, where there has been no Custom to the contrary, by the Laws of the Hindoos, and not by those of the Mohamedans.
Next to the English Law, the Hindoo Law is the one you were most frequently called upon to administer at Bombay?
I think it has been by Custom more than by the strict Hindoo Law.
Has the Court at Bombay regular Officers for the Purpose of making itself acquainted with the Principles of the Native Law it is called upon to administer, or does the Court use its own Discretion in collecting it?
They use their own Discretion in collecting it. When they think they have not a sufficient Knowledge of it of themselves, they call in the Assistance of Persons whom they think competent to give them Opinions upon it - Moolvies and other People.
In what Language are the Proceedings of the Court carried on?
In English, with the Assistance of Interpreters with regard to Evidence.
Are there any other Courts in Bombay besides the Supreme Court?
Not in the Presidency of Bombay; in the Government, of course, there were a great many.
Is the Supreme Court a Court of Appeal from any other Court?
No. There is a similar Court of Requests at Bombay to that I mentioned at Penang, established by The Governor, and the Rules and Regulations by the Acquiescence and Approbation of the Supreme Court, passed by the Government in Council, and from which there is no Appeal to the Supreme Court that I am aware of; I think I must have known of it if there had been.
Is the Trial by Jury had recourse to at Bombay?
Yes, in Criminal Cases, but not in Civil Cases.
In Criminal Cases, where Natives are concerned as much as Europeans?
Yes. Perhaps I should say that there has been lately a Rule and Regulation, (I do not know whether it has been approved by His Majesty in Council yet,) to allow the Magistrate to punish Natives for small Offences, without the Intervention of a Jury. That was passed by The Governor, with the Approbation of the Majority of the Court.
Are Natives admitted to serve on Juries in such Cases?
When I left Bombay the Act of this Country had arrived, but not been put into Execution, except with reference to a Portuguese Gentleman, Sir Roger de Farian, who was a Christian, who had sat once on the Grand Jury.
From your Observation of the Natives generally, are you of Opinion they would be usefully employed in serving on Juries?
I think that the Answer to that is a Subject of very considerable Difficulty, and one of very great Doubt.
You have formed no decided Opinion of your own upon the Subject?
I think it is attended with great Difficulty. Where there is no Heat, and no Interference with their peculiar Habits, I think they would assist the Judge in the Administration of Justice, in collecting the Evidence.
Is there any particular Description of Natives whom you think more qualified for the Exercise of those Civil Offices than others?
I think the Parsees would be more fit than any other. I think they are more free from what would be commonly called, perhaps, Prejudices.
Do you attribute that to the particular Circumstances of their Religious Faith, or to that of their being the most opulent of the Inhabitants?
Principally, I think, from their being the most opulent, the most enterprizing, and the most intelligent. With respect to the Faith of the Parsees, it is very difficult for any one to know really what their Faith is; and I have taken considerable Pains on the Subject.
Have you observed the Parsees to be superior in general Morality to the rest of the Native Population?
With regard to the Morality of the Natives, Europeans mix so little with them, it is a very difficult thing to say.
As far as fell under your Observation in the Administration of Criminal Offences?
I really cannot say; but I have every Reason to think, when I was at Bombay, there were as many Perjuries committed by them, and as many Pretences that other Persons were committing Perjuries against them, as by any other Class.
Were you ever at Ceylon?
Yes, I have been.
Had the Trial by Jury been introduced at the Time you were there?
Yes. I was there only on a Visit; not officially; but I have had great Communication with the Judges there.
Had you an Opportunity while at Ceylon of observing or hearing the Effect of the Introduction of the Trial by Jury now?
I know that Sir Richard Ottley, who was one of the Judges while I was there, had a very high Opinion of the Juries at that Time, which was in 1822, I think.
How long had they been at that Time introduced?
I think not a very long Time. Sir Alexander Johnson had introduced them, and he had gone Home. But I was there only a Week, so that any Information I can give must be very loose.
Are you aware of any Circumstances in the Population of Ceylon more favourable to the Practice of the Trial by Jury there than at Bombay, or in other Parts of India?
No; I am not at all sufficiently acquainted with the Population at Ceylon; I am not aware of any.
Have you visited other Parts of India?
Yes; I have been in almost every Part of India. I have been up to Delhi, to Hydrabad, Seringapatam, and Trichinopoly, and at Canton, but only as a Traveller, as a Visitor.
Have you had any Occasion to observe the Degree of Confidence which the Natives in those Parts of India you have visited place in the Administration of the Law?
I do not feel competent to answer that Question; I have not sufficient Knowledge of the Language; and even if I had, in travelling through a Country it was almost impossible to gain sufficient Information to enable me to answer the Question.
Do you conceive that upon the whole the Administration of the Law in the English Form is more conducive to the Interests of the Country than it would be if the Proceedings were attempted to be carried on in any other Language?
I think in Bombay, Madras and Calcutta, where English is so much spoken, it would be a great Pity to alter it, to introduce the Persian into either of the Presidencies, and attended with no Use at all, because by the Interpretation we have the Evidence from the Natives in their own Language, with the Interpretation in English. Whether the Persian might be got rid of in the Mofussil Courts, still retaining the Evidence in the Native Languages of that mixed and extraordinary Population, would be a Question, perhaps, beyond my Information.
Are you acquainted with the Persian yourself?
No, I am not.
Can you state the average Duration of Suits in the Court at Bombay?
They were cleared off every Term; we never had any Arrear; we hardly could have, unless they were Arrears arising from the Absence of Witnesses, or the Absence of Parties, or Circumstances which occur in this Country.
Can you state the Expence attending Suits in Bombay?
It would be very difficult; it depended entirely on the Nature of the Suit.
Does any material Improvement occur to you as practicable in the Constitution of the Court at Bombay as it now stands?
I think there are many Things to be looked forward to that might be beneficial.
Will you describe generally what in your Opinion they are?
I think every thing should be done to prevent any Collision between the Courts within the Presidency and the Company's Courts without the Presidency and within the Government, where it is possible to be anticipated. The Consequences of Collisions I consider as exceedingly injurious to the Population, both European and Native.
What is the Nature of the Court by which the Law is administered within the Government, but without the Limits of the Presidency?
I believe they are the same with regard to personal Questions. Without the Presidency, the Mohamedan Law prevails almost all over India as to Criminal Cases; but I have understood that in the Mahratta Countries the Mohamedan Criminal Law does not prevail, but, as far as they can ascertain it, the Hindoo Criminal Law. The Government make Rules and Regulations altering the Hindoo and Mohamedan Law without the Presidency.
Those Courts are appointed by the Company in the same Way with the Courts in the other Settlements?
Is the Persian Language in general understood by the Hindoos?
I believe very few, except the higher ones, understand it; and I am not sure very often that they do.
Has the Persian Language then, do you think, any Advantage over the English Language, as used in Criminal Courts, in which the Hindoos are chiefly interested?
I have understood it is only that the Records are kept in the Persian Language, and therefore it can have no Advantage, it being to them a dead Language.
Are you of Opinion that it would be an Advantage to substitute the English for the Persian Language in such Cases?
No; I do not think it would be either an Advantage or a Disadvantage. It would make very little Difference if our Indictments in this Country were now in Latin. I believe it is the better Opinion that it would make little or no Difference; they would be interpreted.
Would it not have a Tendency to familiarize the Hindoos with the English Language?
That depends on such a very extensive View of India. There are many Persons who contemplate making it the vernacular Language; but it is such an extensive Subject, I am afraid it would be difficult for any Person to form a sound Judgment upon it: it is all conjectural. It would be an Advantage, with our Views of the World, that the English should be the vernacular Language of the whole of Hindoostan.
Would not such a Change have a Tendency to produce that Effect without any injurious Violence to the Habits of the Natives?
It might be one small Step towards that, perhaps.
What has occasioned the Increase of Expence in the Judicial Charges at Bombay since the Year 1824?
I imagine the Establishment of the Supreme Court in lieu of the Recorder's Court. In 1824 the Supreme Court was established, and previous to that only One Judge instead of Three. In 1824 and 1825 the Supreme Court was established; previous to that there was only the Recorder.
What is the Population of the Guicowar Territory?
That is a separate Native Government, and is all under the Influence of the Bombay Government; they are principally Hindoos; there are, I believe, a great many Parsees in Parts of it; but I have never been in the Guicowar Dominion.
Is there any Appeal from the Supreme Court in Bombay to The King in Council?
Yes; which it appears to me should be very much facilitated by any Regulations which can be made, if they can be made.
How long has that existed?
Ever since the Establishment of the Recorder's Court; and from all the Courts in India there has been an Appeal to The King in Council.
Do you think great Value is set upon that Right by the Parties who litigate?
I think if they had not the Right they would perhaps find Fault; but, having the Right, it is not so often exercised as perhaps it would be if there were Facilities granted.
That Right exists only in Cases in which there is a certain Amount of Property in Question?
Yes; I think 2.000 Rupees; but I am not certain of the Amount; I forget.
You mentioned that in the Supreme Court of Bombay there are about Eight Barristers and Eight or Ten Attornies?
Have you found that about the fair Proportion to the Transaction of Business?
Yes; I think fully adequate to it. They would have been fully adequate if they had been all residing.
Did the Attornies bear a fair Proportion to the Barristers?
Yes. I think if there had been more there would not have been sufficient to support them.
In the Island of Ceylon, are the Natives summoned on Grand Juries as well as on Petit Juries?
I do not know; but I believe not. I believe there is something in the Nature of a public Prosecutor under the Name of Procurator Fiscal, who acts in the same Manner as I believe the Office of Lord Advocate is administered in Scotland; but I cannot speak to that Point.
Are there no Hindoo or Mohamedan Officers regularly attached to the Court of Bombay?
No; except the Interpreters.
The Witness is directed to withdraw.
Richard Clark Esquire is called in, and examined as follows:
What Situation do you hold?
I was in the Civil Service on the Madras Establishment. I have resigned the Service.
What Offices did you fill there?
In the latter Part of my Service I was a Member of the Board of Revenue, (I was Secretary before that,) and Temul Translator to the Government, and, ex-officio, a Member of the Board of Superintendence of the College; before that I was in the Sudder Adawlut. I never had any Service in the Interior of the Country; I was entirely at Madras.
In the Provinces under the Presidency of Madras at present, are the Collection of the Revenue and the Administration of Justice under the Direction of the same Person?
No; the Departments are separate.
The Civil Judge in the Province and the Collector are separate?
Have they been always so?
They have been so since 1802.
What Advantages do you conceive arise from their Separation?
The first great Advantage is to render practicable the Duties, which would be infinitely too laborious for any One Man; another Advantage must be, the more impartial Administration of Civil Justice, because the Collection of the Revenue has a Tendency to lead Men to Acts of Controul over the Property and Rights of the People, which it is the Business of the Judge independently to protect; and I may say, generally the Separation is productive of those Benefits which must always result from an independent Judicature.
Are any and what Judicial Powers intrusted to the Collectors?
No Judicial Powers are intrusted to the Collectors, excepting that of deciding, in the first Instance, certain Cases regarding immediate Occupancy of Land, or Claims to the Right of Irrigation. The Produce of large Tracts of Land depending upon Irrigation, and the Right to receive Water from the great Reservoirs being a Subject of frequent Discussion and Dispute among the Inhabitants, by a late Regulation the Collector has been empowered to settle, in the first Instance, summarily, Questions arising upon those Points.
Are there any Appeals from his Judgment in those Cases to the Judge?
Yes; and from the Judge to the Provincial Court, and eventually to the Sudder Adawlut. The Zillah Courts are more numerous and have a more limited Jurisdiction than the Provincial Courts. Over several Zillah Courts One Provincial Court exercises Jurisdiction. There are Four Provincial Courts under the Presidency of Madras.
In what Manner do the District Munsiffs discharge their Duties, principally?
I believe upon the whole very satisfactorily. There are Village Munsiffs and District Munsiffs.
Do they all discharge their Duty satisfactorily?
The Village Munsiff Jurisdiction is to a small Amount. Very little is known of what they do; for though they are required by the Regulations to make regular Reports, there is no Means of insuring their doing so. The great Object of giving them Power was to enable them to decide small Disputes upon the Spot; and the Provisions requiring them to send in regular Statements of the Business they perform have not been very punctually carried into Effect, consequently little is known of what Quantity of Work they do. But the District Munsiffs, who have a more extended Jurisdiction, are known to get through a great deal of Business. From their Decisions an Appeal lies to the Zillah Courts; and the District Munsiffs being a superior Order of Men, many of whom are regularly trained to Judicial Inquiries, their Reports are more faithful, and the Business they transact is more regular. The Proceedings in their Court have been generally considered satisfactory.
You believe that to be a very efficient Institution?
I have no doubt of it. It is the Extension of a System which has existed ever since the Year 1802; there were Native Commissioners appointed, though with a less extensive Jurisdiction, and not so defined in Number.
What are the Salaries of the District Munsiffs?
I do not exactly recollect; but as far as I recollect, about £8 a Month; about Twenty Pagodas. They have also Fees upon all Cases which they decide upon the Merits.
Are you acquainted with the Constitution of the Police Establishment?
In what Manner are they appointed, and removed, and remunerated?
The lowest Police Officer is the Village Watcher. There are several in a Village, who perform the lower Offices. They are under the Control of the Head of the Village; the Head of the Village is under the Controul of the Tehsildar, who is a local Native Collector of Revenue; the Tehsildar is under the Magistrate, who is the Collector. The Village Watchers are remunerated by a small Quantity of Grain from the Produce of the Village, and from certain Fees from the Inhabitants; and the Head of the Village has also similar Allowances, to a greater Extent. The Tehsildar is a Stipendiary Officer of the Government, employed in the Collection of the Revenue. There are Police Officers appointed to Towns, called Aumeens of Police, who have a Jurisdiction also beyond those Towns; and there are Officers called Cutwals, a kind of High Constables, resident chiefly in Market Towns. There are, in some Districts, paid Police; and there were formerly various Classes of Native Peons, under different Denominations, many of whom have of late Years been dismissed as unnecessary.
Are those Persons adequately remunerated in general?
They are remunerated, not expressly for Police Duties, but jointly for their Duties in the Revenue and the Police Department. Every Police Officer is a Revenue Officer.
Is there no Inconvenience found from uniting the Two Characters?
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There is Reason to apprehend that a great deal of Inconvenience arises from it, especially as the Magistrate, who is the Collector, and has the entire Superintendence of the Police, and a certain Extent of Criminal Jurisdiction, has the sole Controul over the Police; while the Zillah Judge, who exercises the Office, as it is termed, of Criminal Judge, and who has a superior Power of punishing, and that of committing to Trial before the Circuit Court, is not permitted to exercise any Controul over the Police; the Police are not responsible to him; nor do the Acts of the Police regularly or uniformly come under the Revision of the Criminal Courts, as they did before the Separation of the Offices of Judge and Magistrate. There is a general Propensity in the Natives to exercise Severity towards each other; and there is Reason to believe that those Rules that have been made for the Guidance of the lower Police Officers, especially those limiting the Time that they are permitted to keep the Prisoners before they are sent up to a Court of Criminal Jurisdiction, are overlooked and neglected; and that Prisoners are detained very much, according to the Pleasure or Convenience of the Police Officers. These are the chief Inconveniencies I have been aware of. As far as I recollect, during the Time I was in the Sudder Adawlut, there were many Cases in which the Court found incidentally that such Abuses of Authority did take place.
Abuses from the Union of those Two Characters have been frequently found to exist?
Of course it is very desirable to remedy them?
Do you apprehend there would be any great Advantage obtained by an Alteration in the Nature of the Police?
Not in the Nature of it so much as in the Controul of it; if it were made more responsible to the Judicial Department.
Are you not of Opinion that a smaller Police, better paid, and not locally connected with the Villages, would be advantageous?
That would be very doubtful; because all Knowledge and Discovery of Offence must be made through the Village Officers, so that an independent Police must resort for its Information to the Village Officers.
In your Experience of the Sudder Adawlut, did you find the Gentlemen appointed to those Courts sufficiently qualified in Law and Judicial Practice for the Situations?
In many Instances certainly not, referring to the Courts generally.
Are the Judges of the Zillah and Provincial Courts qualified, by a proper Study of the Mohamedan and Hindoo Law, for the Performance of their Duties?
There are very few Judges, either of the Provincial or of the Zillah Court, who have been enabled to qualify themselves well in the Knowledge of either of the Laws of the Country, because the Study of those Laws requires the Knowledge of Languages very difficult of Acquisition, and not in use except for the Objects of Study: not in use colloquially. When a Gentleman first enters the Civil Service, he studies in the College those Languages which are now colloquial, and which will enable him to communicate immediately with the Natives; but those are not the Languages in which he would be enabled to study the Laws of the Country; and the Time of those Gentlemen is generally so fully occupied in the Discharge of the Duties of their Situations, which are ordinarily very onerous, that they have very little Time to give to abstract Study. In Cases turning on Points of Mohamedan and Hindoo Law, the Judges avail themselves of the Assistance of Native Lawyers of each Class, who are appointed both to the Zillah and Provincial Courts and to the Sudder Adawlut; and, as directed by the Regulations, the Judges refer to those Officers for their Opinions on the Points submitted to them for that Purpose. The Judges also take such Means as are in their Power to verify those Opinions; and much Assistance has been afforded in this respect, of late, by the Publication, in English, of Translations of some of the Works on the Hindoo Law of the greatest Authority, to which Reference can be safely had.
Are you of Opinion that a more decided Separation of the Judicial from the other Branch of the Service would tend to the Advancement of better Men to high Judicial Situations?
I think it would.
Are you of Opinion that any Advantage would be obtained by any Institution of Native Juries in Criminal Cases, empowered to declare their Opinion as to Matters of Fact?
I think the Employment of Natives to be present during the Investigation of a Criminal Case, and to give their Opinion upon the Evidence, would be advantageous; but I do not think that their Decision could be received and implicitly followed as the Verdict of a Jury in Great Britain is.
In what Cases does the Supreme Court administer Justice according to the Mohamedan and Hindoo Law?
In all Cases of Inheritance, Adoption, and Contract, I believe. In all Cases in which the Rights of the Parties require that the Decision should be governed by a special Law, obligatory upon those Parties.
In what Position are the Half-castes considered to stand in the Eye of the Law?
All Persons living within the local Jurisdiction of the Supreme Court are amenable to that Court; beyond the local Limit of the Supreme Court, the Half-castes, in common with all other Natives of India, and also with European Foreigners, not British Subjects, are amenable to the local Courts.
You were in the Revenue Board for some Time?
For a short Time.
Can you inform the Committee of the Manner in which the Settlements of Land are made?
An Alteration had taken place in the Settlements, beginning about the Year 1814; a gradual Introduction of a different System had taken place, which was still in progress when I quitted India. Some of the Districts have been permanently settled, those especially to the Northward of Madras, called the Northern Circars; others had been experimentally leased out for Ten Years, and on the Expiration of those Leases a different System, namely, that of settling with each Individual for his own Land, was introduced; it is called the Ryotwar System.
Did that Experiment succeed, as far as you understood?
I had hardly an Opportunity, from my short Experience in the Revenue Department, of forming an Opinion that would be of any Value to the Committee.
The former Mode of Settlement was a Village Settlement?
In some Instances; in other Instances the Districts were divided into Tracts called Mootahs, of which the Revenues were sold to certain Natives, who collected the Revenues from the several Payers, having a Profit themselves upon the Totals so collected.
What Controul had the Board of Revenue over those?
The Controul of the Board extended only to the Realization of the Revenues. The Native Collectors were amenable for their Acts to the Zillah Court, and for any Abuse of Power.
You are aware of a Power of Appeal from the Sudder Adawlut to The King in Council?
What Advantages do you suppose to arise from that, if any?
The Appeals which have come Home for a great many Years past remain undecided, undoubtedly from the Ignorance of the Parties how to proceed, which has prevented their doing more than they have done.
Consequently little or no Benefit has been derived?
No Benefit, but very great Inconvenience: inasmuch as many Parties have made Deposits which they cannot get released, even where they have compromised their Suits.
Do you conceive any Advantage would be derived from the Continuance of that Right of Appeal?
I think many Advantages might be anticipated if the Appeal were rendered efficient.
Can you state any particular Case in which such Inconvenience has arisen?
There are Four Cases in which the Parties have compromised their Suits in India; they have sent Home Notice of their Compromise through the same Channel by which they forwarded their Appeals; in one Case the total Amount litigated is held in Deposit, and in the others the Sum deposited for Fees, which amounts to about a Thousand Pounds, is held in Deposit. The Restoration of the Deposits was refused to the Parties in India, because the Courts there had no Knowledge of what was done by the Court appealed to in England with regard to the Suits.
Have the Agents for those Parties made any Application to the Privy Council on the Subject of those Appeals?
The Parties have not appointed Agents; it is not likely that they should do so.
Are the Parties to whom the Communications have been made, Agents?
No. Under the Regulations established in India, when a Party desires to appeal from the Decree of the Sudder Adawlut, he prefers his Petition of Appeal within Six Months after the Decree has passed; and upon making certain Deposits to answer the eventual Costs of the Appeal, and paying the Expence of Stamp Paper, upon which Two Copies of his Appeal are prepared, the Court of Sudder Adawlut cause Two Copies of all the Papers, including the Evidence of Witnesses and the Proceedings of the Courts, to be prepared on Stamp Paper, and transmit those Two Copies to the Secretary to Government in the Judicial Department, for the Purpose of being transmitted to England, to be laid before His Majesty in Council. The Indian Governments forward the Packets to the Court of Directors, by whom they are sent to the Privy Council Office, or to the Secretary of State. The Parties in India, who are most of them Persons resident in the Interior, unconnected with English Proceedings, and knowing little of England, but always accustomed to abide by the Directions of their local Rulers, conform as far as they are enabled to the Regulation of the Government; and, having done so, they conclude that when the Documents under the Seal of the Court are transmitted through the Indian Government to England, the Court of His Majesty in Council will take the Case into Consideration, and return a Decision thereon. Such Expectation is in conformity with the Practice that obtained, as regards Madras, up to the Year 1818; before which Time an Appeal was admitted from the Decisions of the Madras Sudder Adawlut to The Governor General in Council at Calcutta. When the Documents were so sent to Calcutta, a Decree was returned, confirming or reversing that of the Sudder Adawlut at Madras, without any thing being required to be done by the Party. In like Manner, the Suitors unconnected entirely with England or English Proceedings are fully in Expectation that the Official Transmission of their Papers will lead to the Decision of their Case in England, and in that Expectation they patiently wait.
What is the Date of the Appeals to which you refer?
Upon an Application made by the Court of Directors for Permission to bring forward these Cases on behalf of the Suitors, the whole of the Cases were sent to the India House from the Privy Council Office, for the Purpose of being examined, and a Report drawn up; and I was employed in preparing an Abstract, stating the Cause of Action, the Names of the Parties, the Amount sued for, and so on; and this List was submitted to the Company's Law Officers, and has been forwarded to the Board of Controul, for the Purpose of being laid before the Privy Council. The Papers are now in the Custody of the Company's Law Officers. The earliest Appeal from Bengal was on a Decision that passed in the Year 1799. There are Twenty-one Appeals from Bengal, Ten from Madras, and Seventeen from Bombay. Those from Madras and Bombay cannot be earlier than 1818, because it was in that Year that the Appeal was declared by the Regulations to be open to The King in Council. It was known before to European Officers, that the Appeal to The King was a Matter of Right in the Subject: this was not known by the Natives.
Is there a Decision in any one of those?
There was a Decision Two Years ago on a Case of very considerable Importance, in the Madras Territories; the Succession to the Zemindarry of Ramnad. The Appeal was decided ex-parte; and the Appellant failing to make out his Case, the Decree of the Sudder Adawlut was confirmed.
Was the Appellant a Native?
Who employed Counsel?
An Agent who was connected with a Gentleman at Madras was employed in the Case. It appeared to be by Chance that the Party became aware that he could take Steps to forward the Proceeding.
Do you know what the Expences of an Appeal are, previously to the employing of an Agent; the Expence of the Stamps and Costs of the Copies you referred to?
They vary according to the length of the Appeal, in which there is a very great Variety. I think, in one Case, the Stamps amounted to One thousand Rupees.
What Proportion does that bear to the total Expence of Costs?
That Expence is the same, whatever the Nature or Amount of the Appeal.
Can you state the Expence of getting an Appeal to this Country, previously to its being heard?
There is a Fee called the Institution Fee, which was formerly paid; it has now been commuted for a Stamp Duty. This Fee was charged on filing any Petition of Appeal. The Institution Fee on a Case of Fifty thousand Rupees, which is the smallest Amount appealable from Bengal, would be about Eight hundred Rupees. The Stamp Duty for which that Institution Fee has been commuted, in a Case from Fifty to an Hundred thousand Rupees, would be One thousand Rupees; above an Hundred thousand it would be Two thousand Rupees. This is besides the Stamps on which the Papers are copied.
Can you state the largest Amount of Deposit?
At Madras the Deposit for Fees for eventual Costs in England is Eight thousand seven hundred and fifty Madras Rupees, which is calculated to be equal to One thousand Pounds. In Bengal, I think they take Security for Five thousand Rupees. In Bombay it does not appear clearly what Sum is fixed; general Undertaking is given by Sureties to be answerable for the Costs of the Appeal in England.
Do you happen to know whether all those Packages of Papers containing the Appeals have been forwarded to the Privy Council, or whether they have remained at the India House?
I believe that all of the Appeals received were forwarded; some have arrived since the Transfer to the India House, and they remain in the Care of the Company's Law Officers.
Is there any Notice given to the Parties in such Cases?
No; there is no Communication with the Parties, but through the Sudder Adawlut, and I believe there has not been any Communication with the Sudder Adawlut from England, for the Information of the Parties: none was received while I was in the Sudder Adawlut at Madras.
What becomes of the Money that is deposited in the mean while?
It remains in the Hands of the Registrar of the Sudder Adawlut, who pays the accruing Interest upon it to the Parties making the Deposit.
Does he give any Security for the Sums lodged in his Hands?
No; the Registrar of the Sudder Adawlut gives no Security.
Has he the Use of the Money during the Time the Appeal is pending, only paying Interest for it?
No, he cannot use it; it is in the Custody of the Court.
Is it invested in Company's Paper?
It is only at Madras that the Deposit is usually made in Money or Company's Paper. In Bengal Security Bonds are generally given. In a great Case appealed from Bombay, regarding the Succession to the Estate of the Minister of the late Peishwa, I believe a Deposit of 10.000 Rupees has been made by the Parties. That is the only Instance in which I have known of a Deposit of available Money having been made at Bombay.
Do you know why twice the Security is required at Madras that is at Bengal, and in a more inconvenient Mode?
The fixing the Sum has been entirely in the Discretion of the Court; but the Court have little Means of knowing what would be the Expences attendant on a Suit in England, but they have fixed a Sum which, according to the best Information they were able to obtain, seemed likely to cover any Expence that would be incurred. I have stated that it is 5.000 Sicca Rupees in Bengal, which would be equal to about £600. At Madras it has been taken at £1,000.
Is the Amount of the Sum that entitles the Parties to appeal to The King in Council the same in each Presidency?
An Appeal may be preferred from any final Decision of the Courts at either of the Presidencies of Madras or Bombay for any Amount; but the Appeal from Bengal is limited to £5,000. Of Seventeen Appeals from Bombay, not more than Three or Four are of an Amount that would have authorized an Appeal from Bengal.
Previous to 1818, were Appeals frequent to The Governor in Council in Bengal?
I believe there were not many Appeals, but I do not know the Number. The Sudder Adawlut in Madras was only established in 1802.
Were the People of the Country dissatisfied with that Mode of appealing?
Not at all.
Can you state the Grounds on which the Mode of Appeal was altered from The Governor General in Council to the Privy Council in England?
It was from the Recognition, that The Governor General had no Power to decide Appeals in the last Resort. An Appeal from the Decision of the Sudder Adawlut seemed of Right to lie to The King in Council. A Question on this Subject was referred to the Advocates General of the Three Presidencies, who were of Opinion that the Appeal would lie of Right to The King in Council, from Madras and Bombay, from any final Decision, for any Amount. I believe the Reference arose on a Case of some Magnitude, which had been appealed to The Governor General in Council; and the Result was that his Lordship in Council declared that the Appeal was no longer to be made to him, and directed the Madras Government to publish a Regulation declaratory that Appeals would in future be transmitted to The King in Council.
That was not arising from a Feeling that the Company was frequently a Party to those Cases?
Not in the least.
The Appeal given in 1818 appears to be entirely nugatory?
As well as the Right of Appeal from Bengal, though limited to Cases of a certain Amount.
Have there not been Appeals in which the Company has been a Party?
There is one now depending, in which the Bengal Government are a Party, in conformity with the Provisions of the Judicial Regulations, which require that in certain Cases the Government should themselves be Defendants. There are other Appeals, involving Matters in which the local Government or their Officers have taken a considerable Share; for Example, the Case of the Ramnad Zemindarry, to which I have before referred, came necessarily before the Madras Government for Orders in the first Instance.
Would there be any Mode of apprising the Parties of the Necessity of appointing Agents for the Prosecution of those Appeals?
It might be done through the Court of Sudder Adawlut, who would send the Communication to the Parties; but when the Parties should receive that Communication it would be very difficult for them to conform to it, from their Want of Knowledge of English Proceedings, and of Connection with this Country. It would be necessary for them, probably, to resort for Assistance to the Attornies of the Supreme Courts at the Indian Presidencies, which would be a grievous Evil.
In what Manner do you conceive the Parties can repossess themselves of Money they have deposited?
Only by a Decision or Order of the Privy Council.
In what Manner do you conceive the Natives are less fitted to discharge the full Duties of Jurors than Englishmen?
They are so liable to be biassed both by Hope and Fear; the Obligation of an Oath lies so light upon them; and it would be so difficult to discover the Existence of indirect and improper Influence over them, or to controul it, that little Reliance could be placed on a Decision, if it was given (in the present State of their Morals and Feelings) under an Impression that it would be final and decisive.
Do you know whether they are anxious themselves to possess that Right?
I believe not.
You speak only with reference to Madras?
Only with reference to the Madras Territories.
Did you ever hear a Suggestion of suppressing the Zillah Courts altogether, by extending the Authority of Provincial Courts, and making the Appeal direct from them to the Government in Council?
You were never in any other Part of India but Madras?
No; except on a Journey of Pleasure; never officially.
You have stated in the Course of your Evidence that the Natives were inclined to inflict severe Punishments; do you attribute that to a general Severity in their Disposition, or to the Circumstance of their being connected by Family or Personal Interest with or against the Parties?
To a general Tendency that the Natives, when in Power, have to exercise Oppression over each other.
Possibly also by reference to the barbarous Punishment inflicted by the Mohamedan Law?
Undoubtedly from the Habits acquired, especially by Native Officers, under the Mohamedan Government, and also under the Hindoo Governments, which we have not been able yet fully to suppress. The Natives have every Reason to know that the British Government discountenance, and are anxious to check, every such Abuse; but the Habit has been so inveterate, and our Controul so limited, in reference to the Number of Persons whom we can place in Controul over them, that those Habits have not yet been suppressed.
The Witness is directed to withdraw.
Ordered, That this Committee be adjourned 'till To-morrow, One o'Clock.