Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
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Die Martis, 16 Martii 1830.
I have prepared, agreeably to the desire of the Committee, a Statement of the Revenues and Charges of India, from 1823-24 to 1827-28, and an Estimate for 1828-29. This Statement shews, at One View, the Gross Produce of the Revenues, the Proportions of that Produce which have been expended in Charges of Collection, and in the Stipendiary Allowances, and the Mode in which the Remainder has been applied.
I have also prepared, agreeably to the Command of the Committee, an Estimate of the Amount in which the Charges of India, supposing Peace to continue, are expected to be diminished in future, as compared with 1828-29, by the various Reductions of Establishments, Military and Civil, which have been ordered to be effected. Referring to my former Statement, that if the Charges in future Years remained at the Amount specified in the Estimate for 1828-29, and if the Territorial Branch were to continue to derive the same Advantage in its Remittances as at present, the probable Excess of Charge over Territorial Revenue would be £1,478,285. It may be proper now to apprise the Committee, that since I made that Statement Intelligence has been received from Bombay of a Falling-off in the Land Revenue there in 1828-29; and which, it is apprehended, may to some Extent affect the Receipts of future Years. I would also mention, that my former Statement was made without reference to any Diminution of Revenue that may arise from the Measures in progress for discontinuing the Malwa Opium Monopoly.
The Diminution in 1828-29 was Thirty-two Lacs of Rupees; or, at 2s. 3d. the Rupee, £360,000. No Estimate has been received from the Government of Bombay of the probable Effect of the Defalcation in future Years.
I was employed in the Province of Malabar for a Period of about Twenty-eight Years: Six or Eight Years in a subordinate Situation, Judicial and Magisterial; Thirteen Years as Principal Collector; and Nine Years as a Judge of the Provincial Court of Circuit and Appeal. The Province of Malabar was, on the Cession of the Province, under Bombay; but annexed to Madras in 1800.
Not in the first Instance. After the Introduction of the Bengal Judicial Regulations they were separated; and on the Introduction of Colonel Munro's Regulations of 1816, the Police Duties entirely, and the Magisterial partially, were annexed to the Revenue.
According to the System that prevails under the Madras Presidency, no Civil Servant is allowed to be employed in the Provinces that has not undergone an Examination as to his Knowledge of the Laws and Regulations of the Government in every Department, particularly the Revenue and Judicial; and it is supposed that before they quit the Presidency they have a generally competent Knowledge of the Laws which come into Practice in actual Employment.
By reference to the principal Inhabitants of the Country of the different Castes whom the Subject under Discussion may affect. With respect to Brahmins, the principal Brahmins are called; with respect to Nairs, the Nairs are called; and with respect to Mopillas, who are Mohamedans and the Descendants of Arabs, the principal Men in their Community are called.
We do; but in the Province of Malabar there are certain Families amongst the Mopillas who follow the Rule of Inheritance prevailing amongst the Nairs, (Hindoos,) which is through the Female Line; and therefore the Courts are obliged to have recourse to the Natives of the Country to expound the Law of Custom.
In the Province of Malabar they generally come before the Judge; but Disputes which arise with respect to the Cultivation of Land, or the Collection of Rents by the Proprietor from his Tenant, are in the first Instance inquired into and determined by the Collector; and if the Collector's Decision is unsatisfactory to either Party, he may bring the Case in a regular Suit before the Courts of Justice.
Yes. The Salt Warehouses are open to all Purchasers at a fixed Price. They are established in different Parts of the Country, so so as to give a Facility to the Inhabitants to purchase Salt at the Government Price. Stipendiary Servants are attached to them, who retail the Salt.
Just so; but a great Proportion of the Salt consumed in Malabar is Foreign Salt, which on Importation is purchased by the Government. It comes from Bombay and the Red Sea, and is preferable to that manufactured in the Country.
Yes. But there is no Monopoly of the Betel Leaf in Malabar, which is an Article of Luxury in very general Consumption throughout India. The Trade in Betel is free, and the Cultivation of it is free, which I think is a great Advantage to the Inhabitants, and takes away much from the Severity of this Monopoly, as Tobacco is generally eaten with Betel.
Yes; and leased out, exactly in the same way as Lands: the Tenures are nearly the same. There is a Description or Caste of People in Malabar in a more degraded State than the Slaves, and yet they are free, and acknowledge no Master whatever. They are almost in a State of Nature. They will submit to no Manual Labour. They will guard the Fields at Night against the Depredations of Hogs and Elephants and Deer. But the Race is nearly extinct. They are in a perfect State of Freedom, but in a most wretched State of Degradation. They are called Nâayady. Their Degradation is so low that they cannot even approach the common Slaves of the Soil, of whom there are various and distinct Tribes, called Chermar, Puller, Paniar, Koormar, and many others.
Yes. The Murder of a Slave by a free-born Subject has been met with Capital Punishment. There is no Exclusion of any of the Inhabitants of the Country from the Protection and Benefit of the Laws. The Malabar Slaves were not under such Protection anterior to the British Government; under the former Government of the Rajahs the Lord had the Power over his Slave of Life and Death.
It depends very much on the Matters on which they are called; if they are called on Matters in which the Interest of their Masters is concerned, their Evidence is received with a good deal of Caution; but, generally speaking, their Evidence is as much, if not more, to be relied on, than that of the common Inhabitants of the Country.
Does the Caution with which their Evidence is received in the Case of their Masters being interested arise from their being supposed to be under the Influence of their Masters, or from their Partiality for them?
From both. I should think a Slave would be deterred sometimes from giving Evidence against his Master through Fear of the Consequences; and he would also be influenced at Times to give undue Evidence in favour of his Master where his Master's Interests were concerned; but in Cases where the disputed Property is situate in the Hills and Forests, the Evidence of the local Slaves is very material, because it is entirely on their Evidence that Boundaries in such remote Situations, of which the Proprietor can have no Personal Knowledge, are ascertained and adjusted. The Forests and Hills yield a Variety of valuable Productions, such as Timber, Bees Wax, Honey, Stick Lac, Gums, &c.
Undoubtedly. The daily Allowance to the Slave, that is, his Subsistence, is established by the Custom of the Country; and if that is not given to him regularly, and he run away, the Master would find great Difficulty in recovering him. It is the Duty as well as the Interest of the Master to see that the Subsistence (called "Wally") is regularly served out to his Slave.
Undoubtedly, according to the Custom of the Country. I may here add, that Marriage prevails among one Sect of Slaves, in which Case the Male is of more Value to the Master than the Female of that Sect. In another Sect, where Marriage does not exist, the Mother is of more Value to the Owner, because the Children are all hers. And there is a Sect in Canara where I have understood the Males belong to the Owner of the Father, and the Females to the Owner of the Mother. The Marriage Contract is made entirely between the Parents of the respective Parties, without any Interference on the Part of the Masters.
I cannot call to Recollection any Case of the kind; but where a Master has applied to the Collector for the Recovery of his Slave, the Question arises, what has been the Cause of Desertion, before Redress is given.
The only Remedy that I am aware of is a Court of Justice, which would certainly require him to support his Slave according to the Custom of the Country. The Court would immediately ascertain what the Law of the Country was, and enforce the Execution of it.
Within my Knowledge there are Families of Slaves in one Part of Malabar belonging to The Zamorine, the principal Rajah of Malabar, who possess Property in Land on Caânom, (a Mortgage Tenure peculiar to Malabar,) and who cultivate on their own Account, pay the Revenues of Government themselves, and they pay also the Dues of the Proprietors of the Land.
I should think that The Zamorine Rajah could exercise no Power over the Property of the Slaves I have alluded to; that if he attempted to dispossess them, a Suit at Law would prevent the Execution of his Intentions.
Can you state at all nearly the Proportion, in point of Numbers, that the Persons in a State of Servitude, as well as the other Class you have described to be in a very degraded State, bear to the Population generally?
The Population of Malabar, by a Census made while it was under my Administration in 1806 or 1807, amounted to 700,000 Souls. By a late Census, made about Two or Three Years ago, I understand the Returns make it out to be about 940,000 Souls. I have not exact Recollection as to the Proportion which the Slaves may bear to the general Population, but I should think that they do not exceed Five or Six thousand Families. But your Lordships Committee may have accurate Information on this Point by Reference to the Census of the Population, in which every Caste is distinctly stated.
I should wish those Observations to be applied exclusively to Malabar, as my Knowledge of Canara does not extend to more than what may have been derived from the going there on Circuit, and from the Investigation of Causes that have come before the Court of Appeal.
By the free Population. The Coffee will not grow in the Rice Fields on wet Lands. It is grown for Domestic Use exclusively by the Syeds, or Arab Priests, in their private Gardens. The Natives of Malabar don't use Coffee.
I have no immediate Recollection of it; it is paid in the Paddy in Grain. With regard to Slaves, I have further to add, there is a Caste of them that are supposed to be versed in Sorcery, and the Inhabitants have a very great Dread of them; they could levy a Contribution from whole Villages under this Dread of their Sorcery; indeed the Superstition of the Country is so great that Neighbours very often resort to those Slaves for the Purpose of letting loose Destruction amongst the Cattle and Families of those whom they have any Hatred against.
There are very few in Malabar, but there are great Numbers of them in Mangalore in Canara; they are under the Jurisdiction of the Archbishop of Goa. There is a College near Cochin, where the Priests are educated in the Syriac.
No; it is brought to Malabar for the Consumption, not only of Malabar but of the Interior of the Country above the Ghauts. The Bringaries, with their Bullocks, come from the Mysore and the Mahratta Country, and take away an immense Quantity.
The principal Condiment they use is Curry. Curry is a kind of Sauce made of Chillies and Turmeric and Pepper, with a little Salt and Garlick. Salted Fish is much in use in the Interior of the Country; and in Malabar the Fishermen were allowed, for the Purpose of salting their Fish, to take away every Evening what was called the Sweepings of the Salt Pans, after the Salt in the course of the Day had been scraped off; and they had the Liberty of doing that without paying any Tax at all.
Regarding, however, the Consumption of Salt rather with reference to the Advantage of the People than as a Source of Revenue, have you any Doubt that it would be expedient to put an End to the Monopoly of it?
The Price of Salt in some Years, particularly when much Rain had fallen during the Season of Manufacture, and when the Produce was entirely destroyed, had been known to reach beyond the Retail Monopoly Price.
The Salt is generally imported as Ballast to the Craft, and not as an Article of Commerce. The Returns from the Malabar Coast consisted of Pepper, Cocoa Nuts, the Betel Nut, and Piece Goods manufactured in the Interior of the Country, which are brought to the Malabar Coast for Exportation; Sandal Wood, also the Produce of the Interior Provinces, viz. Coimbatore and Mysore; various kinds of Dry Grains, the Cardamum Spice, and Bees Wax, and Sapan Wood, which is a Red Dye; the Wood itself yields the Dye.
Have you Reason to think that in those Parts of India which have fallen within your Observation, and where either the English System of Law has been introduced, or the English Regulations influence the Administration of Native Laws, the Value of Property has risen?
Certainly, in the Province of Malabar, where the Land is private Property. I think also that the Security of the Laws has had the Effect of improving and increasing the Mercantile Class; they are under greater Protection. Under the Native Government they were very liable, if they were known to possess Property, to Extortion and oppressive Exactions.
The original Settlement, made by Mr. Duncan, who came from Bengal, was with the Rajahs and Chieftains of the Country. He made a Settlement for Five Years. It was founded on Antud Beg Khan's Jamma, an Officer under Tippoo's Government. The Arrangement with the Rajahs failed; and the Revenues of the Country were afterwards administered by the Company's own Servants. The Settlements were made with the Proprietors of the Land, or the Kâanomkars, (Mortgagees,) or, in fact, those who had the greatest Interest in the Soil.
The general Settlement had been made previously to my Time. The only subsequent Duty to perform was to ascertain annually in whose Names the Revenue was registered in the Village Accounts, and to cause its Collection by stipendiary Servants.
Ever since the Company's Government. The Revenue has never been materially altered, excepting the Remission of the Land Tax on the Pepper Cultivation, the Consequence of which has been, that the Value of Landed Property on the Coast of Malabar is greater than I suppose in any other Part of India, excepting, perhaps, the Presidencies.
Not from the Hereditary Proprietors: their Attachment to their Hereditary Property is almost vital; and although many receive only a nominal Rent, there are very few Instances of any Proprietor selling his Hereditary Estates. A Proportion of the Property is in the Hands of Kaânomkars, who are Mortgagees, who have lent Money to supply the Necessities of the Proprietors, and have taken Mortgages upon their Lands. These Lands are for the most part in the Hands of the Mortgagees, but the Mortgage is always redeemable; it is never foreclosed; which is a very peculiar Feature in the Mortgage Tenure called "Kaânom" of Malabar.
In point of fact, the same System existed in the Time of the Rajahs; they had to collect the Revenue from those Tenants; but finding the Tenants not very obedient,-finding they were turbulent and obstreperous, they were obliged to give up their Charge. They could not fulfil their Engagements.
There is much Wealth among Mopilla Merchants. The Industry of the Mopilla Character may be judged from the Fact, that the most wealthy Person on the Coast of Malabar had arisen from a common Pedlar or itinerant Trader. He was a Native of Tellicherry, which was ceded with Bombay to Great Britain.
To Bengal, Bombay, and the Red Sea, and to Europe. Independently of the Mopilla Merchants, there are Hindoo Merchants called "Delalls," or Brokers, on the Coast, who act as intermediate Agents between the Merchants in Bombay, the Arabs, and the Mopillas. The Mopillas are the People who have immediate Communication with the Cultivators,-with the Growers; and they sell to the Exporters.
The Proprietors are the Descendants of the ancient Jelmkars, whose Rights are considered allodial. They either cultivate the Lands at their own Expence, or they lease them out to Tenants, and mortgage them. There are Tenants in Mortgage, Simple Tenants, that is, Tenants at Will, and Tenants on periodical Leases; and in fact it depends entirely on the Deed by which he holds the Farm, under which he makes his Agreement for the Cultivation of the Land with the Proprietor.
Certainly, if they have purchased the Proprietary Right. There are, I suppose, in Malabar, altogether, between Thirty and Forty thousand Proprietors. The ancient Families having divided their Estates amongst different Branches, the Property of each has diminished of course into very small Estates. The Property is entailed; and, as the Families increase, Feuds arise, which occasion a Division or Separation of Interests altogether; but no Division of the Family Property can take place without the unanimous Consent of Heirs, Male and Female.
Part of the existing Proprietors are Descendants of the ancient Proprietors; others again are Mopillas, and different Classes of the Inhabitants of the Country, who have acquired a Proprietary Right by Purchase.
The Existence of the Proprietary Right was disputed at one Time only by those who had never been in either Malabar or Canara; but I believe it is admitted now by every Authority, with respect to Malabar and Canara; and indeed all along the Western Coast of the Peninsula, from Cape Comorin to Goa, there is no Question about it.
On the Island of Ceylon, from 1801 to 1805, I was His Majesty's Advocate Fiscal, a Situation very similar to that of The Lord Advocate of Scotland. From 1805 to 1819 I filled the Office of a Member of His Majesty's Council, a Judge of the Supreme Court, and a Judge of the High Court of Appeal; for the last Ten Years of that Period I filled the Office of President of His Majesty's Council, Chief Justice of the Supreme Court, First Judge of the High Court of Appeal, and Judge of the Admiralty Court.
The principal Part of the Duty of the Advocate Fiscal, independent of that of his being the Public Prosecutor, is to advise His Majesty's Government on all Legislative Measures, and on every Legal Point relative to the Revenues of the Crown. In one or the other of the last Four Offices I have named every Case of any Importance, either relative to Natives or Europeans, or Descendants of Europeans, or to Suits connected with Revenue or Land, or with any Part of the Maritime Jurisdiction of Ceylon, came before me, either in the first Instance or in Appeal.
There was a Supreme Court, composed of a Chief and Puisne Justice, holding their Situations under the Great Seal of Great Britain; a certain Number of Provincial Courts, each composed of One or Two of His Majesty's Civil Servants, holding their Situations under an Appointment from the Local Governor; a High Court of Appeal, composed of the Chief and Puisne Justice, of the Governor, and of the Chief Secretary of Government. The Jurisdiction of the Supreme Court was as follows: - Its Civil Jurisdiction was Local and Personal: its Local Jurisdiction extended to a certain Limit; every Person within that Limit, whether Native or European, was subject to its Local Jurisdiction: its Personal Jurisdiction applied to Europeans, or Descendants of Europeans, in whatever Part of the then British Possessions they might be: its Criminal Jurisdiction extended over every Person within the then British Territories, Native and European, and over every Part of the then British Territories. This Jurisdiction (the Criminal) was exercised by the Court partly at Sessions held at the principal Place on the Island called Columbo, and partly on Circuit made throughout, every Part of the then British Territories, before the Year 1811 without a Jury, since the Year 1811 with a Jury. The Jurisdiction of the Provincial Courts was partly Criminal and partly Civil: the Criminal to a small Extent; the Civil over every Person within their respective Limits to whom the Jurisdiction of the Supreme Court did not extend. The Jurisdiction of the High Court of Appeal was entirely an Appellate Jurisdiction from the Provincial Courts; it heard every Case of Appeal from every Provincial Court in the Island, provided the Subject of Appeal amounted to a certain Sum. The Jurisdiction of the Admiralty Court in Ceylon was nearly the same as the Instance Jurisdiction of the Admiralty Court in England, and extended all along the Coasts of the Island, a Distance of about 930 Miles. The Population of Ceylon (my Reason for explaining the Nature of the Population is, that the Nature of the Law which is administered in Ceylon depends upon the Population amongst whom it is administered, and that the Court is bound to apply to each Portion of the Population the Law which prevails amongst that Population,) consists of about 500,000 Persons, professing the Hindoo Religion, and resembling, in almost every respect, the Hindoos upon the opposite Peninsula of India; about 500,000 Persons more, the Cingalese, professing the Budha Religion, and having many Customs and Laws of their own; there is a Population also of about Seventy or Eighty thousand Mohamedans, having Laws of their own. The remaining Part of the Population are either English, Dutch or Portuguese, or Descendants from each of that Class of Europeans. The Hindoo Law, which applies to the first, (the Hindoos,) is very nearly the same as the Hindoo Law that applies to the whole of the Hindoos who inhabit from Cape Comorin up to Madras. The Mohamedan Law, which applies to the Mohamedans, is also very nearly the same as the Mohamedan Law which applies to the whole of the Mohamedans descended from Arabs who inhabit between Cape Comorin and Bombay on the Malabar Coast, and between Cape Comorin and Calcutta along the Coromandel Coast. The Law which applies to the English, Dutch and Portuguese, and to their Descendants, is so much of the Dutch Roman Law as has been adopted by His Majesty's Instructions to the Governor, and by His Majesty's Charters of Justice. The Dutch Roman Law is the Roman Law in use in Holland, subject to the different Modifications it has undergone by Proclamations in Holland, and by Proclamations in the different Dutch Colonies.
To what Means have the Courts recourse for the Purpose of acquainting themselves with the Principles of the different Discriptions of Law to be administered to the different Classes of Natives you have described?
In consequence of Ceylon, when first conquered by the British Arms, having been placed under The East India Company, and in consequence of the Similarity between a considerable Part of the Population of that Island and the Population of the Southern Peninsula of India, the Courts in Ceylon were frequently obliged to refer to the Nature of the different Institutions and of the different Laws and Manners of the different People who inhabit the Southern Peninsula of India; and it was more peculiarly my Duty, from the Nature of the different Situations which I held, to obtain the most accurate Information relative to them. It was for this Reason that I, while on my Way out from England to Ceylon in 1802, stopped for some Time at Madras, in order that I might become acquainted with all the Laws and Institutions of the different People living under that Presidency. It was for the same Reason that, in 1806, The Governor of Ceylon, wishing to revise the whole of the Departments in that Island, vested me with a Commission to go round the British Territories in Ceylon, and to obtain the most accurate Information upon the Subject; and that I, in 1808, proceeded from Cape Comorin to Madras and back again to Ceylon, for the Purpose of examining the Institutions in the Peninsula of India; and after having made a Comparison between the Institutions in the Peninsula of India and the Institutions under His Majesty's Government in Ceylon, came to England in 1809, and conferred upon the Subject of the necessary Alteration with the late Lord Londonderry, who was at that Time Secretary of State for the Colonies, and proposed to him, under the Sanction of The Governor and Council of Ceylon, of which I was a Member at the Time, such Alterations as had been deemed advisable. It was for the same Reason that I, in 1816 and 1817, after having come back from England to Ceylon, with the different Alterations in the Ceylon Administration of Justice that had been made in England during my Mission to that Country, and after having remained Six Years on the Island, thought it my Duty, intending to return to England in 1818, in consequence of Leave obtained from His Majesty's Ministers to do so, to make a Second Journey to the Peninsula of India, for the Purpose of again investigating the Nature of the Institutions, Laws, Customs and Manners of the People in that Peninsula, in order that I might, when in England, be enabled, if it were thought necessary, to complete, from the Collections which I had made of Hindoo, Mohamedan and Bhuddist Laws, such a Code as might be deemed applicable to the different Classes of People under the Government of Ceylon. It was for the same Reason that I, in consequence of Inquiries made from me by Mr. Wynn, when President of the Board of Controul, as to the Applicability of the Ceylon System of Jury Trial to the Natives of India, considered fully the Nature of their Institutions, and wrote a Letter in 1825 to Mr. Wynn, upon which he told me he had determined to bring in the Act of Parliament, in the Year 1826, extending the Right of sitting on Juries to Natives under the Jurisdiction of the Supreme Courts in India. It was for the same Reason that, in 1827, my Attention was again called to the Subject of the Administration of Justice among the Natives of India, by one of my Friends asking me to propose some Plan by which the Indian Appeals that had come Home and were in Arrear might be brought before the Court of Appeal and decided, and all Arrear in such Cases of Appeal prevented for the future;- that I, as this Arrear principally arose from the Ignorance of the People of India of the Mode in which they ought to employ Persons in this Country to bring their Cases before The King in Council, gave in the Plan to His Majesty's Ministers and to the Board of Controul which is in some measure the Cause of the Arrangement that is now making for the Purpose of bringing forward those different Cases before the Privy Council; - and that I, with a Reference to the same Subject, in consequence of a Conversation between the Master of the Rolls and myself, as to the Policy of uniting the Judges of the Supreme Courts in India with the Judges of the Sudder Adawluts, gave him a Statement of my Reasons for thinking that it ought to be done, and that it would prevent many of the Difficulties that had occurred in the Arrangement about the Cases that came from the Sudder Adawluts before The King in Council. It was for the same Reason that my Attention was again called to the Subject of Indian Judicature, in consequence of my hearing some Time ago, from Persons who had been engaged in Trade to India, what I knew to be the Case, that it would be a great Convenience to Traders in India to have an efficient Maritime Jurisdiction at Central Ports, between Cape Comorin along the Coast of Malabar to Bombay, and between Cape Comorin along the Coast of Coromandel to Calcutta; and that I sent in a Paper upon the Subject to the First Lord of the Admiralty; and, finally, it was for the same Reason that my Attention was again called to the Subject of the Natives of India by the Circumstance that Lord William Bentinck, from his understanding that a Plan had been adopted by me on Ceylon for making Collections of Hindoo and Mohamedan Law, and that it had been useful, requested me to give him a Memorandum, that he might carry the same Plan, if applicable, into Effect, when he went over as Governor General of Bengal; and that I sent such a Memorandum to Lord William Bentinck, and I gave a Copy of it to the present Chairman of the Directors. I have stated all these Circumstances to shew the Sources from which, and the Occasions on which, in consequence of the Offices I have held in Ceylon, I have derived any Information I may possess upon the Subject of Indian Judicature, to which the Questions of the Committee may refer; conceiving that it would be Presumption in me to give any Opinion as to the Applicability of any Institution in Ceylon to the Company's Establishments, unless my Attention had been called to the Subject of India by the different Circumstances to which I have alluded.
Independently of the Information thus acquired on the Continent of India, were there to be found in Ceylon itself competent Authorities for assisting the Courts in the Administration of the different Branches of Native Law?
I should say there were certainly some competent Authorities amongst the Natives; competent as to the Knowledge they possessed, but perfectly incompetent as to Character, provided their Opinion was to be taken in Cases of great Amount or great Importance at the Time those Cases were before the Court.
You have stated that the Result of your Inquiries as to the State of the Native Law in India was the Introduction of the Trial by Jury in the Island of Ceylon; did you find any Traces of that System of Trial in any System of Law formerly acknowledged by the Natives themselves?
I certainly did find in Ceylon Traces, not of a Jury System, but Traces of the People of the Country having been called upon by the Representative of the Sovereign of the Country to give their Opinion upon Questions of Fact, and upon the Weight due to Evidence, under the Name of Punchayets.
Do you conceive that Custom to have been sufficiently in force to prepare the Minds of the Natives in a greater degree than they otherwise would have been for the Reception of our System of Trial by Jury?
I have the Pleasure, at your Request, to give you an Account of the Plan I adopted, while Chief Justice and First Member of His Majesty's Council in Ceylon, for introducing Trial by Jury into that Island, and for extending the Right of sitting upon Juries to every Half-caste Native, as well as to every other Native of the Country, to whatever Caste or Religious Persuasion he might belong. I shall explain to you the Reasons which induced me to propose this Plan, the Mode in which it was carried into Effect, and the Consequences with which its Adoption has been attended. The Complaints against the former System for administering Justice in Ceylon were, that it was dilatory, expensive and unpopular. The Defects of that System arose from the little Value which the Natives of the Country attached to a Character for Veracity; from the total Want of Interest which they manifested for a System in the Administration of which they themselves had no Share; from the Difficulty which European Judges, who were not only Judges of Law but also Judges of Fact, experienced in ascertaining the Degree of Credit which they ought to give to Native Testimony; and, finally, from the Delay in the Proceedings of the Court, which were productive of great Inconvenience to the Witnesses who attended the Sessions, and great Expence to the Government, which defrayed their Costs. The obvious Way of remedying these Evils in the System of administering Justice was, first, to give the Natives a direct Interest in that System, by imparting to them a considerable Share in its Administration; secondly, to give them a proper Value for a Character for Veracity, by making such a Character the Condition upon which they were to look for Respect from their Countrymen, and that from which they were to hope for Promotion in the Service of their Government; thirdly, to make the Natives themselves, who, from their Knowledge of their Countrymen, can decide at once upon the Degree of Credit which ought to be given to Native Testimony, Judges of Fact, and thereby shorten the Duration of Trials, relieve Witnesses from a protracted Attendance on the Courts, and materially diminish the Expence of the Government. The Introduction of Trial by Jury into Ceylon, and the Extension of the Right of sitting upon Juries to every Native of the Island, under certain Modifications, seemed to me the most advisable Method of attaining these Objects. Having consulted the Chief Priests of the Budhoo Religion in as far as the Cingalese in the Southern Part of the Island, and the Brahmins of Remissuram, Madura and Infua, in as far as the Hindoos of the Northern Part of the Island, were concerned, I submitted my Plan for the Introduction of Trial by Jury into Ceylon to The Governor and Council of that Island. Sir T. Maitland, the then Governor of the Island, and the other Members of the Council, thinking the Adoption of my Plan an Object of great Importance to the Prosperity of the Island, and fearing lest Objections might be urged against it in England from the Novelty of the Measure, no such Rights as those which I proposed to grant to the Natives of Ceylon ever having been granted to any Native of India, sent me, officially, as First Member of the Council, to England, with full Authority to urge in the strongest Manner the Adoption of the Measure, under such Modifications as His Majesty's Ministers might, on my Representations, deem expedient. After the Question had been maturely considered in England, a Charter passed the Great Seal extending the Right of sitting upon Juries in Criminal Cases to every Native of Ceylon, in the Manner in which I had proposed; and on my Return to Ceylon with this Charter in November 1811, its Provisions were immediately carried into Effect by me. In order to enable you to form some Idea of the Manner in which the Jury Trial is introduced amongst the Natives and Half-castes of Ceylon, I shall explain to you, first, what qualifies a Native of Ceylon to be a Juryman; secondly, how the Jurymen are summoned at each Session; thirdly, how they are chosen at each Trial; and, fourthly, how they receive the Evidence and deliver their Verdict. Every Native of Ceylon, provided he be a Freeman, has attained the Age of Twenty-one, and is a permanent Resident in the Island, is qualified to sit on Juries. The Fiscal or Sheriff of the Province, as soon as a Criminal Session is fixed for his Province, summonses a considerable Number of Jurymen of each Caste, taking particular Care that no Juryman is summoned out of his Turn, or so as to interfere with any Agricultural or Manufacturing Pursuits in which he may be occupied, or with any Religious Ceremony at which his Caste may require his Attendance. On the first Day of the Session the Names of all the Jurymen who are summoned are called over; and the Jurymen, as well as all the Magistrates and Police Officers, attend in Court, and hear the Charge delivered by the Judge. The Prisoners are then arraigned. Every Prisoner has a Right to be tried by Thirteen Jurymen of his own Caste, unless some Reason why the Prisoner should not be tried by Jurymen of his own Caste can be urged to the Satisfaction of the Court by the Advocate Fiscal, who in Ceylon holds an Office very nearly similar to that held in Scotland by The Lord Advocate; or unless the Prisoner himself, from believing People of his own Caste to be prejudiced against him, should apply to be tried, either by Thirteen Jurymen of another Caste, or by a Jury composed of Half-castes or Europeans. As soon as it is decided of what Caste the Jury is to be composed, the Register of the Court puts into an Urn, which stands in a conspicuous Part of the Court, a very considerable Number of the Names of Jurymen of that Caste out of which the Jury is to be formed. He continues to draw the Names out of the Urn, the Prisoner having a Right to object to Five peremptorily, and to any Number for Cause, until he has drawn the Names of Thirteen Jurymen who have not been objected to. These Thirteen Jurymen are then sworn, according to the Form of their respective Religions, to decide upon the Case according to the Evidence and without Partiality. The Advocate Fiscal then opens the Case for the Prosecution (through an Interpreter, if necessary,) to the Jury, and proceeds to call all the Witnesses for the Prosecution, whose Evidence is taken down (through an Interpreter, if necessary,) in the Hearing of the Jury by the Judge; the Jury having a Right to examine and the Prisoner to cross-examine any of the above Witnesses. When the Case for the Prosecution is closed, the Prisoner states what he has to urge in his Defence, and calls his Witnesses; the Jury having a Right to examine and the Prosecutor to cross-examine them. Their Evidence being taken down by the Judge, the Prosecutor is seldom or never, except in very particular Cases, allowed to reply, or call any Witnesses in reply. The Case for the Prosecution and for the Prisoner being closed, the Judge (through an Interpreter, when necessary,) recapitulates the Evidence to the Jury from his Notes, adding such Observations from himself as may occur to him on the Occasion. The Jury, after deliberating upon the Case, either in the Jury Box, or, if they wish to retire, in a Room close to the Court, deliver their Verdict through their Foreman in open Court, that Verdict being the Opinion of the Majority of them; the most scrupulous Care being taken that the Jury never separate, nor communicate with any Person whatever, from the Moment they are sworn 'till their Verdict, having been delivered as aforesaid, has been publicly recorded by the Register. The Number of Native Jurymen of every Caste in Ceylon is so great, that a Knowledge before hand what Persons are to compose a Jury in any particular Case is so uncertain that it is almost impossible for any Person, whatever may be his Influence in the Country, either to bias or to corrupt a Jury. The Number of Jurymen that are returned by the Fiscal or Sheriff to serve at each Session, the impartial Manner in which the Names of the Jurymen are drawn, the Right which the Prisoner and Prosecutor may exercise, of objecting to each Juryman as his Name is drawn, the Strictness which is observed by the Court in preventing all Communication between the Jurymen, when they are once sworn, and every other Person, 'till they have delivered their Verdict, give great Weight to their Decision. The Native Jurymen being now Judges of Fact, and the European Judges only Judges of Law, one European Judge only is now necessary, were formerly, when they were Judges both of Law and Fact, Two, or sometimes Three, were necessary. The Native Jurymen, from knowing the different Degrees of Weight which may safely be given to the Testimony of their Countrymen, decide upon Questions of Fact with so much more Promptitude than Europeans could do, that since the Introduction of Trial by Jury no Trial lasts above a Day, and no Session above a Week or Ten Days at the furthest; whereas, before the Introduction of Trial by Jury, a single Trial used sometimes to last Six Weeks or Two Months, and a single Session not unfrequently for Three Months. All the Natives who attend the Courts as Jurymen obtain so much Information during their Attendance, relative to the Modes of proceeding and the Rules of Evidence, that, since the Establishment of Jury Trial, Government have been enabled to find amongst the Half-castes and Native Jurymen some of the most efficient and respectable Native Magistrates in the Country, who, under the Controul of the Supreme Court, at little or no Expence to Government, administer Justice in inferior Offences to the Native Inhabitants. The Introduction of the Trial by Native Juries, at the same Time that it has increased the Efficiency and Dispatch of the Courts, and has relieved both Prisoners and Witnesses from the Hardships which they incurred from the protracted Delay of the Criminal Sessions, has, independent of the Savings it enabled the Ceylon Government an Opportunity of carrying into Effect in the Judicial Department of the Island, a Plan for a permanent Saving of £10,000 a Year, as appeared by my Report quoted in Page 8 of the printed Collection of Papers herewith sent. No Man whose Character for Honesty or Veracity is impeached can be enrolled on the List of Jurymen. The Circumstance of a Man's Name being upon the Jury Roll is a Proof of his being a Man of unexceptionable Character, and is that to which he appeals in case his Character be attacked in a Court of Justice, or in case he solicits his Government for Promotion in their Service. As the Rolls of Jurymen are revised by the Supreme Court at every Session, they operate as a most powerful Engine in making the People of the Country more attentive than they used to be in their Adherence to Truth. The Right of sitting upon Juries has given the Natives of Ceylon a Value for Character which they never felt before, and has raised in a very remarkable Manner the Standard of their Moral Feeling All the Natives of Ceylon who are enrolled as Jurymen conceive themselves to be as much a Part as the European Judges themselves are of the Government of their Country, and therefore feel, since they have possessed the Right of sitting upon Juries, an Interest which they never felt before in upholding the British Government of Ceylon. The beneficial Consequence of this Feeling is strongly exemplified in the Difference between the Conduct which the Native Inhabitants of the British Settlements in Ceylon observed in the Kandian War of 1803, and that which they observed in the Kandian War of 1816. In the War between the British and Kandian Government of 1803, which was before the Introduction of Trial by Jury, the Native Inhabitants of the British Settlements were for the most part in a State of Rebellion; in the War between the same Governments in 1816, which was Five Years after the Introduction of Trial by Jury, the Inhabitants of the British Settlements, so far from shewing the smallest Symptom of Dissatisfaction took, during the very Heat of the War, the Opportunity of my Return to England to express their Gratitude, through me, to the British Government, for the valuable Rights of sitting upon Juries which had been conferred upon them by His present Majesty, as appears by the Addresses contained from Page 16 to Page 50 in the printed Papers herewith sent. The Charge delivered by my Successor, the present Chief Justice of the Island, in 1820, contains the strongest additional Testimony which could be afforded of the beneficial Effects which were experienced by the British Government from the Introduction of Trial by Jury amongst the Natives of the Island. See that Charge in Pages 289 and 290 of Vol. 10 of The Asiatic Journal. As every Native Juryman, whatever his Caste or Religion may be, or in whatever Part of the Country he may reside, appears before the Supreme Court Once at least every Two Years, and as the Judge who presides delivers a Charge at the Opening of each Session, to all the Jurymen who are in attendance on the Court, a useful Opportunity is afforded to the Natives of the Country, by the Introduction of Trial by Jury, not only of participating themselves in the Administration of Justice, but also of hearing any Observations which the Judges in delivering their Charge may think proper to make to them, with respect to any Subject which is connected either with the Administration of Justice or with the State of Society or Morals in any Part of the Country. The Difference between the Conduct which was observed by all the Proprietors of Slaves on Ceylon in 1806, which was before the Introduction of Trial by Jury, and that which was observed by them in 1816, which was Five Years after the Introduction of Trial by Jury, is a strong Proof of the Change which may be brought about in public Opinion, by the Judges availing themselves of the Opportunity which their charging the Jury on the first Day of Session affords them of circulating amongst the Natives of the Country such Opinions as may promote the Welfare of any particular Class of Society. As the Right of every Proprietor of Slaves to continue to hold Slaves in Ceylon was guaranteed to him by the Capitulation under which the Dutch Possessions had been surrendered to the British Arms in 1795, the British Government of Ceylon conceived, that, however desirable the Measure might be, they had not a Right to abolish Slavery in Ceylon by any Legislative Act. A Proposition was however made on the Part of Government by me to the Proprietors of Slaves in 1806, before Trial by Jury was introduced, urging them to adopt some Plan of their own Accord for the gradual Abolition of Slavery. This Proposition they at that Time unanimously rejected. The Right of sitting upon Juries was granted to the Inhabitants of Ceylon in 1811. From that Period I availed myself of the Opportunities which were afforded to me, when I delivered my Charge at the Commencement of each Session to the Jurymen, most of whom were considerable Proprietors of Slaves, of informing them what was doing in England upon the Subject of the Abolition of Slavery, and of pointing out to them the Difficulties which they themselves must frequently experience, in executing with Impartiality their Duties as Jurymen, in all Cases in which Slaves were concerned. A Change of Opinion upon the Subject of Slavery was gradually perceptible amongst them; and in the Year 1816 the Proprietors of Slaves, of all Castes and Religious Persuasions, in Ceylon, sent me their unanimous Resolutions, to be publicly recorded in Court, declaring free all Children born of their Slaves after the 12th of August 1816, which in the course of a very few Years must put an End to the State of Slavery which had subsisted in Ceylon for more than Three Centuries.
One great Object which I had in view in proposing the Introduction of Trial by Jury into Ceylon was to increase the Value for Character amongst the Natives of the Country, and to increase their Attachment to the British Government, by making them feel that they had a Share in the Administration of Justice. If your Lordships consider the Mode in which the Lists of Persons qualified to act as Jurymen were made up in each Province, you will perceive the Effect that such Lists must have amongst the Natives in attaining both those Objects. The Mode is this: I directed the Head of every Province to make out a correct List of every Man in the Province who had attained the Age of Twentyone, who was a Freeman, who was permanently resident on the Island, and a Man of respectable Character. When this List was returned to me, for fear of any Partiality in the making out of it, I sent it back for the public Inspection of the People of the District, for a certain Time, in every Subdivision of the District; informing every Man in the District that it was his Duty to correct any Mistake that had been made in that List. When the List came back to me, after having undergone this public Examination, and not before, I ordered it to be fixed up in the Public Court House in each Province, and considered as the only List from which, in future, Jurors should be called by Rotation to serve at each Session. A certain Number of Days before the Court held a Session, public Notice was issued, that if since the making out of the List any one of the Persons whose Name appeared upon the List had committed any Act by which he had forfeited his good Character, or had disqualified himself from having his Name continued on the List, it was the Duty of his Countrymen to come forward and state the Fact to the Court before the Session was opened. If any such Fact was stated, the Man against whom it was stated had a Right to demand an immediate Trial by Jury as to whether the Fact alleged against him was true or not. If it were proved to be true, his Name was immediately struck off the Public List in Public Court; if it was not proved, and the Charge appeared to have been malicious, he had a Right immediately to prosecute the Man who had made the Accusation against him, and to have him tried before a Jury, and if found guilty punished. The Effect of this sort of Proceeding was, that no Man but such a one as was reckoned by the Persons of his District a Man of high Character ever had his Name retained upon that List. The People of the Country therefore attached great Value to their Names being upon these Lists, for many Reasons; first, from this Circumstance itself, of their Names being upon the List, publicly announcing to the whole of the District that they were conceived in the District to be Persons of high Character and Respectability; secondly, because it gave them an Opportunity of shewing their Talents in public as Jurymen, in the Defence of the Lives, the Liberties and the Property of their Countrymen, and was thereby the Means of rendering them an Object, not only of Popularity but of Admiration amongst their Countrymen. They also attached Value to it because it gave them an Opportunity of displaying in public their Knowledge of the Laws, the Customs and the Manners of their Fellow Countrymen, and by thus calling the Attention of Government to their Talents, was a certain Mode, if they were distinguished, of inducing the Government to give them an Appointment. They also attached Value to it because it increased the Value of a good Education. In consequence of the Superiority which a good Education gave them as Jurymen, they not only educated themselves, if their Education had been deficient, but they took particular Care to have their Children and Friends well educated. Upon these Grounds I conceive that the Admission of the Natives of Ceylon to act as Jurymen is a most powerful Engine for raising the Value of Character amongst them, and that it applies to every Part of India just as well as it does to Ceylon.
You conceive, then, that there can be no Deficiency, either in Character or Information, attaching to the Natives of any Parts of the Peninsula, which does not equally attach to the Natives of Ceylon, disqualifying them from exercising those Functions?
I certainly think not; and I take the Liberty to refer your Lordships to an Opinion of Importance in confirmation of what I say, which is the Opinion of the late Sir Thomas Munro upon the Subject. In consequence of the Introduction of Trial by Jury amongst the Natives of Ceylon, Sir Thomas Munro expressed a Wish to see me upon the Subject; and I met him in the Beginning of the Year 1817, and explained to him every thing that had passed upon the Subject in Ceylon. He told me that he had long been convinced of the Aptitude of the Natives for such an Institution; that he was delighted to find that it had succeeded in Ceylon, because he thought it would have a good Effect in making People see that the Natives were capable of executing such an Institution; that he should, when he had the Power of doing it, endeavour to carry the same Measure into Effect throughout India; and he advised me, if I could, while I was in England, to prepare the Minds of Persons connected with India for that Event. It was principally in consequence of this Opinion, in addition to my own Observation, that I felt perfectly confident, at the Time I wrote the Letter of 1825 to Mr. Wynn, that he might safely apply the Principle of the Ceylon Jury Trial to India. In confirmation of this Opinion I have found, in the Life of Sir Thomas Munro, which is lately published, a Letter from him to the late Marquis of Hastings, in which he distinctly mentions his Conviction that Native Juries should try Facts in Criminal Cases. I have also heard that Sir Thomas Munro, having determined, shortly before his Death, to try the Experiment, even upon a much more extensive Scale than had been done by Mr. Wynn in the Act of 1826, had actually determined to extend the System of Trial by Jury to a considerable Portion of the Madras Territories; and that his Successor in the Government of Madras, knowing his Determination upon the Subject, and conceiving it of Importance to the Country that that Determination should be carried into Effect, did carry it into Effect very soon after his Death, by a Regulation which I have in my Hand, and to which I beg leave to refer. I believe the Regulation has since been altered. It appears to me that upon a Point of this sort Sir Thomas Munro's Opinion is of great Value, from the perfect Knowledge which he possessed of the Native Character; and that the strongest Proof one can have of his Conviction upon the Subject, and that of his Successor, is to be found in the Regulation to which I have alluded, and which is, I perceive, among the printed Papers now before your Lordships Committee.
Will you state whether the favourable Feeling of the Natives towards the Introduction of that System existed from its Commencement in Ceylon, or whether they have only become favourable from experiencing its Benefits practically?
I thought that their Feelings were highly flattered from the very first, when they heard that they were to be vested with the Right of sitting upon Juries. I remained upon the Island Seven Years after the Introduction of Jury Trial, and I was perfectly convinced of its great Popularity, and the beneficial Effects it had produced in every Instance, both upon their Understandings and upon their Moral and Political Feelings; and I beg to refer to an Opinion that may be considered as less prejudiced in its Favour than my own, for the Corroboration of my Opinion upon the Subject; it is the Opinion of my Successor, the late Sir Harding Gifford, which I beg leave to put in. It is contained in a Charge delivered by him on taking Possession of his Office of Chief Justice, of the Authenticity of which I have no doubt.
Extract from the Charge delivered by Sir Harding Gifford, the Chief Justice and First Member of H.M. Council at Ceylon in 1820, on his taking Possession of his Office, after the Resignation of Sir Alexander Johnston.
It has been my Duty to examine the Criminal Calendars of that Period, with a view to inform myself of the State of Offences generally; and I have been both surprised and gratified to observe, that during this Interval, an Interval marked by Violence and Convulsion in the Interior, that there does not appear to have occurred in our Maritime Provinces a single Instance of even a Charge of Turbulence, Sedition or Treason, or of any Offence bearing the slightest Tinge of a Political Character. It is too well recorded, and is within the personal Knowledge of some of yourselves, that during the Kandian War of 1803 the Revolt of some of our Maritime Districts added in no slight degree to the Difficulties of that melancholy Period. To what are we to attribute so remarkable a Change? Certainly not to the superior Character of the Government. In Mildness and Benevolence, Mr. North's Administration was assuredly not exceeded by that of any of his Successors. But, Gentlemen, let us ascribe it to the true Causes; to the long and steady Experience of the Blessings of a Government administered on British Principles, and, above all, to the Introduction of Trial by Jury.
To this happy System, now (I may venture to say) deeply cherished in the Affections of the People, and revered as much as any of their own oldest and dearest Institutions, I do confidently ascribe this pleasing Alteration; and it may be boldly asserted, that while it continues to be administered with Firmness and Integrity, the British Government will hold an Interest in the Hearts of its Cingalese Subjects which the Portuguese and Dutch Possessors of this Island were never able to establish.
It may appear, and with Justice, that I indulge some degree of personal Gratification in referring to this Subject, when I tell you, that in a Report made to the Government of Ceylon in June 1817, by the Advocate Fiscal of that Period, there is contained an Observation which shews that this Feeling is not new, and we know how fully it has been justified by subsequent Events. In that Document it is said, that, "amongst the Inhabitants of the Maritime Provinces, I know the Jury System to be already" (this was in the Seventh Year of its Operation) "a Favorite. The Wisdom of the Supreme Court has most happily adapted it even to their Prejudices, so that they had actually began to feel Attachment to it on that Account, even before they were aware of all its Advantages."
And the Report adds, "Armies may waste away from Climate or Disease, and Seasons and Circumstances may baffle the utmost Exercise of Human Foresight; but, fixed on the Attachment of the People to our Jurisprudence, I look upon the Security of the British Interests in" (the Maritime Provinces of) "Ceylon to be impregnable."
And can we, Gentlemen, with these pleasing Results before us, omit to render our Tribute of Recollection to the Learned Judges by whose Zeal and Ability this System has been put so happily into Operation.
Of one of them, holding, as he still does, that Station in Society so well merited by his Talents and Services, it would be difficult in me, without Indelicacy, to offer more than that Tribute which it would be Injustice to withhold. To his perfect Knowledge of the Native Habits and Character, and his extensive Acquaintance with their Institutes, it was owing that the Jury System was thus so skilfully adapted even to their Prejudices, and so deeply rooted in their Affections as to have had the Consequence in which we now rejoice. (fn. 1)
Perfectly; there appeared to be no Difficulty at all. I had previously called Meetings of them in different Parts of the Island, and explained to them the Nature of the Institution, and caused to be translated for their Use a Portion of an old Work current in this Country about a Hundred Years ago, and which, from being written in Question and Answer, I thought applicable to their Mode of considering Subjects of this sort. It is called, I think, "The Sheriff and Juryman," but I am not quite certain as to its Title. It was circulated, and I believe tended to make the Measure popular in the first Instance.
I believe that there ought to be a Regulation containing what, after Consultation with the Hindoos themselves, may be deemed the present Hindoo Law; and that the same ought to be done for the Mohamedans. I beg leave to add, that this ought to be done in consultation with the Hindoos and the Mohamedans themselves; because that is the Means of making the Measure popular amongst them, and really applicable to the present Times.
The Proportion of Domestic Slaves was never, I believe, very accurately ascertained. The Necessity to ascertain it was latterly not great, in consequence of the Resolution passed by the Slave Proprietors, that all Children born of their Slaves after the 12th of August 1816 should be considered as born free; but I should think it might be ascertained without Difficulty.
Those to whom the Resolution I have just mentioned applied were Domestic Slaves principally. There are also in Ceylon what are called Slave Castes, very similar to the Slaves of the Glebe in Russia and in other Parts of the North of Europe.
It applied not to the Slave Castes, but to the Slaves who did not belong to those Castes. A considerable Portion of those Slaves, though called Domestic Slaves, may have been worked in Gardens, and may also have been worked in Fields.
If alluding to the Subject from the Bench at the Commencement of different Sessions can be said to have given rise to it, it originated with me; but I do not mean to say that my suggesting to them what I often did had any more Influence upon them than to confirm them in the Opinion that it would be a proper Act, and that it would render them, in the Eyes of the Court and in those of their Countrymen, more impartial Jurymen.
Supposing a Regulation to be attempted, consolidating the different Cases of Native Law, would it not be necessary to authenticate it in all the Languages in which Native Law is now administered in India?
Certainly; it ought to be translated into every one of the Languages in use amongst the Natives for whom it is intended. The Hindoos in the Peninsula of India either speak Tamul or Telogoo, or Mayalim, or Canarese, according to the particular Districts in which they live. The Hindoos in Bengal also, I believe, speak a Variety of different Languages.
In the Peninsula of India the Persian is by no means, I believe, generally understood amongst the common Hindoos of the Country. The common Languages of the Hindoos of the Peninsula of India are the Tamul, the Telogoo, the Mayalim and the Canarese.