Die Martis, 9 Martii 1830.
The Lord President in the Chair.
Sir Edward Hyde East Baronet, a Member of the House of
Commons, attending, is called in, and examined as follows:
What Judicial Situation did you fill in India?
I was Chief Justice of the Supreme Court in Calcutta. I went
out in the Year 1813; I arrived there some Time in November, I
think the 8th.
How many Years did you remain Chief Justice?
I left India of course, having resigned my Situation, in the
Beginning of the Year 1822; I think in January 1822.
Have the goodness to describe the Constitution of the Court
over which you presided?
It consists of Three Judges. Originally it consisted of Four,
but the Office of One of the Judges was suppressed, to form a
Fund for the Payment of the Pensions of the Judges who
About what Time did that Alteration take place?
Before my Time. There are various subordinate Officers
belonging to the Court; there is a Registrar, a Master in Equity,
and several other subordinate Officers; those are the Two principal
Is the Number of Advocates who are admitted to plead before
the Court limited or unlimited?
The Number of Advocates depends entirely upon the Number
the Court think proper to call. The Power of calling to the Bar
rests with the Court at Calcutta. When I arrived there, I found
but Three Advocates, the Advocate General of the Company, and
another Gentleman who was the Second Counsel of the Company,
and there was a Third Barrister there, Mr. Stewart, who was
in an ill State of Health; and very shortly after I arrived he
was obliged to go to Sea for some Time, in order to restore his
At the Time he went to Sea, there was no Advocate before the
Court but the Two Advocates of the Company?
Who then conducted the Causes in which the Company was a
For a Time, of course, there was nobody. If there had been
any Cause, which I am not aware that there was at that Time, in
which the Company were concerned, there would have been no
Advocate at all during Mr. Stewart's Absence; and in consequence
of that I wrote a Letter to Lord Buckinghamshire, who was at the
Head of the Board of Controul, informing him of that State of
Things. My Son had been called to the Bar before I went, and
was permitted to go out with me; but as I understood that, although
it was not mentioned officially to me, indeed there was no such
Understanding on the Part of the Chairman or Deputy Chairman
of The East India Company with whom I had personal Communication, but as I understood there were some of the Directors
that thought it was not proper that the Son of the Chief Justice
should practise at the Bar, I had some Communication with Lord
Buckinghamshire upon the Subject; and I told him that, under
those Circumstances, (not knowing at that Time, before I went
out, what the State of the Bar was,) I should certainly not call my
Son to the Bar without further Communication from his Lordship.
But, in looking out the Papers I have in my Hand upon the Judicial
State of India, after receiving the Notice on Saturday Morning
last that your Lordships desired to examine me, I happened to lay
my Hands upon the Letters which I had written to Lord Buckinghamshire upon that Occasion, and the Answers ( (fn. a) ) which I received
from him; and perhaps a Reference to these will be a more satisfactory and certain Method of communicating what passed than
mere general Recollection. I wrote to the Board of Controul,
under Date of December 9, 1813, stating, that I thought it proper
to mention to his Lordship, as Minister of the Crown for his Department, the State of the Bar upon my Arrival at Calcutta; that
there were then only Three Advocates, Two of whom, the Advocate
General and another Gentleman, were the Standing Counsel for
the Company, and a third was in a precarious State of Health,
which obliged him to retire for the then Session to get Change of
Air at Sea; that in this State of Things I received the most urgent
Solicitations, both from the Bar and from the Bench, to permit my
Son to practise as a Barrister, and I could only prevent the other
Judges from calling him, even against my Concurrence, by assuring
them that I should consider my own Honour wounded by it, until
I understood from the Chairman of the Company that the Objection started by some of the Directors to that Measure was withdrawn, or until the President of the Board of Controul gave his
Fiat for my Assent; that I should have stated more upon the
Subject if I had not felt myself individually implicated in the Discussion; but that I should not on that Account shrink from the
Duty which I owed to His Majesty, and to the whole Profession of
which I had the Honour to be a Member.
Will you now state what was done in consequence of that Representation?
I received from Lord Buckinghamshire a Letter, dated India
Board, June 7, 1814, stating, that he had received my Letter of
the 9th of December 1813, and had immediately sent an Extract
from that Part of it which immediately related to my Son to the
Chairman of the Court of Directors; but as he was not informed
whether he had written to me or not on the Subject, he, Lord
Buckinghamshire, could have no hesitation in stating to me his
Opinion, that under the Circumstances I have mentioned, and
which indeed had been confirmed to him by Sir Henry Russell, I
ought not any longer to resist the Solicitation of the Bar and the
Bench, with respect to my Son's practising as a Lawyer in the
Supreme Court. I stated, in answer to that dated the 20th of
December 1814, that in consequence of his Lordship's Letter, the
other Judges to whom I had communicated it had entirely concurred in it, and signifying their Intention of calling him at the
Meeting of the Court in the next Term; and that the same
Necessity indeed still existed for a further Addition to the Bar;
for although we had permitted Mr. Lewin, who had before held
the Office of Master of the Court, to resume his Practice, after he
had resigned his Office and Mr. Stewart had been appointed to it,
and although we had also called another Gentlemen who had
practised at the Bar at Madras, and had left it for the Purpose,
yet, as Mr. Lewin was about to depart for Europe, the Number
would be again reduced to Three, under the Circumstances I have
In consequence of that subsequent Representation, was any
further Addition made to the Bar?
In consequence of that, and of the Feeling which the Judges
entertained, that the Bar ought to be more numerous, we did from
Time to Time, as Opportunity occurred of acquiring Barristers,
call various Gentlemen; and before I left the Court, I think there
were either Eight or Nine Barristers practising in it.
Is the Committee to understand that Eight or Nine was the
largest Number of Advocates at any Time permitted to practise
during the Time you presided over the Court?
It was I believe the largest Number; but the Number was
continually increasing during my Time. As we were able to get
Accessions, no Barrister with a proper Certificate was rejected;
but there was one Gentleman who was admitted in the course of
that Time, who was not admitted so soon as he applied, because he
had come out from England without the Certificate which the
Court before my Time required before they admitted any Gentleman to the Bar; that is, a Certificate from Two of the Judges in
England, testifying their Knowledge or Belief of his Integrity and
Ability, without which we could not admit him. This Gentleman
coming out at first without that Certificate, we declined calling him
then; but he obtained his Certificate afterwards, and then we called
Do you conceive, from your Experience of the Business of the
Court, that the Number you have now mentioned is fully adequate
to meet the Business and the Demands of individual Suitors?
The Business of the Court was increasing from Time to Time,
during all the Time that I remained. I do not know whether the
present Amount of Business requires more or not; but I see no
Reason why any Gentleman at the Bar, obtaining the Certificate I
have mentioned, of his Integrity and Ability, from Two of the Judges
of England, should not be permitted to go out and practise at the
Bar. If the Bar gets overstocked by those Means, it will of
course stop the going out of more, when any Gentlemen who are
desirous of going out find that it is not likely to answer for them,
at least for some Period of Time.
The Committee is to understand, that during the Time you
presided over the Court the Business of the Court was constantly
That is more than I can charge my Memory with directly
stating; but it had very much increased during the Time I was
there. I think I have seen lately some Returns of that kind, and
though I did not pay very minute Attention to them, not then
having my Attention called to the Subject, I think it appeared,
that though it did not regularly from Year to Year progress, it was
generally progressive, upon the whole.
The Idea upon your Mind was, it was likely to increase still
Is the Number of Attornies of the Court limited, and what are
the Circumstances of that Limitation?
There was formerly, and in my Time, a Limitation of the Number of Attornies, and the Number was, I think, extended more than
once while I remained at Calcutta; but whether there is now any
precise Limit to it or not, is more than I can say; but the Number
of Attornies was much increased while I remained there, and I
believe it has been still more increased since I came away.
Do you remember the Number to which it was formerly limited?
I think the first Limitation I heard of was of the Number of
Twelve, and then it got to Four or Five or Six more, and then to
Twenty. It went on as the Business of the Court was increasing;
but there were certainly several of the Attornies who were not in
good Business; they had all of them a little Business, but the principal Part of the Business lay with some Four or Five or Six.
Did the Increase in each Instance take place under the Authority of the Court?
Yes, certainly; it was the only Authority.
Are those Attornies exclusively Europeans?
Originally they were exclusively Europeans, but while I was
there there were One or Two or Three Half-caste Persons let in,
who had served their regular Apprenticeship to Attornies under
Articles in a regular Manner, and were Persons who conducted
themselves very well; and we thought that under those Circumstances they had fair Claims to be let in to fill those Situations.
There were no Native Attornies who were not Half-castes?
No, certainly no Hindoo or Mussulman; nor do I recollect any
Natives, except Half-caste, who had served their Time under
The Court did not consider the Circumstance of being a Native
of any Description as a Bar to a Person being admitted to practise
as an Attorney, provided he was in other respects duly qualified?
Certainly not, while I was there; that is, after we had come to
the Resolution I have mentioned.
Did that Portion of the Attornies who were of the Half-caste
Description generally conduct themselves, while they fell under
your Observation, with Propriety and Integrity?
With entire Propriety and Integrity, so far as I saw.
Have the goodness to state what is the Jurisdiction of the Court
over which you presided?
That is a very wide Question, and therefore I must give a very
general Answer to it. After I had been there about Two Years, I
prepared a Set of Papers representing the General Judicial State of
the Supreme Court, and, as far as I had obtained Information, of
the Provincial Courts of the Country, which I sent Home, intended
for Lord Buckinghamshire, who was President of the Board of
Controul. Unfortunately, he died before the Papers reached
Home, but the Papers got to the Board of Controul, and have
remained there. Those Papers enter very fully into the Statement
which comprises much of the Question now put to me; but I can
give a general Answer to the Question. The Criminal Jurisdiction
of the Court, within the Limits of Calcutta, described by the
Mahratta Ditch, is general over all the Persons living within that
local Ambit. The Civil Jurisdiction is also co-extensive over all
Persons within the local Ambit; but with this Reservation in
respect of the Native Population, that the Laws of Inheritance,
Succession, and Contract are reserved to the Mussulmans and to
the Gentoos, which is the Expression made use of, by which was
understood generally the Hindoos, and therefore the general Law
of England, in respect to those particular Subjects, did not attach
upon them; but all the rest of the Civil Laws of England, with the
Distinction to which I shall presently advert, attached upon them
that did not touch their Inheritance, Succession, or Contracts, even
within the local Ambit of Calcutta. The entire Common Law of
England, so far as it was applicable to them, was transferred with
the first Charter that was granted, in the 13th of George the First;
but the Statute Law of England was only supposed to be transferred
by the Charter up to that Period, but not subsequently, unless by
special Acts of Parliament affecting India.
You mean that the Laws of Inheritance, Succession, and Contract were administered to the Natives, within the Limits of Calcutta, by the Supreme Court, according to the best Knowledge you
could obtain of their Laws?
Yes; of course, to obtain this Knowledge, we consulted the
Pundits with respect to the Hindoo Law, and the Moolvies with
respect to the Mussulman Law, whenever any Points of Controversy
arose upon those respective Laws; and we had also the Assistance
of many learned Works written upon the Hindoo Law.
What was the Jurisdiction of the Court beyond the Limits of
The Jurisdiction of the Supreme Court within the Presidency of
Bengal, and other Provinces annexed, extended over all Britishborn Subjects, and the lawful Descendants of British-born Subjects.
By British-born Subjects I must be understood to mean, that which
I understand the Acts of Parliament to mean, British European
Subjects, as contradistinguished from Native Subjects; British
European Subjects and their lawful Descendants. And further,
our Jurisdiction extended to all Natives that were in the Service
of the Company, and in Civil Cases to Natives contracting with
Is the Supreme Court also a Court of Appeal from any inferior
The Supreme Court was not, in its original Constitution, and
for a long Period, an Appellate Court at all from the Provincial
Courts of the Company; but there was an Act passed, I think, a
very little while before I left India, giving Jurisdiction over British
Subjects to the Provincial Magistrates and Courts, over Petty
Trespasses, and small Matters of that kind, which it was thought
burdensome to send to a vast Distance to be tried by the Supreme
Court, which might probably put it out of the Power of Natives in
an inferior Situation to sue those British Subjects at all; and in
those Instances, or some of them, there was an Appeal given, on
account of the Parties being British Subjects, to the Supreme
Court; and we were required to make Regulations for the conducting of those Appeals, which were either actually drawn out or in
progress about the Time of my Departure; but those were in
small Matters, on account of the heavy Expence to be incurred
in going Hundreds of Miles for Redress in case of petty Offences.
No considerable Portion of the Time of the Supreme Court is
occupied in trying Cases of Appeal?
While I was there, there was no Portion at all. Whether that
new Power of Appeal has produced the Effect of bringing Appeals
to the Court, I am not informed.
Have you Reason to think that that Portion of the Natives
whose Interests were brought under the legal Administration of
the Supreme Court were satisfied with the Law so administered?
I have every Reason to believe that they were perfectly satisfied
when I was coming away; indeed they told me so, both Mussulmans
and Hindoos. The Jurisdiction of the Court was exercised, especially on the Equity Side, very frequently over considerable Property belonging to the Natives that was locally situated out of the
Limit of Calcutta, on account of the Residence in Calcutta of the
Native Defendants who were sued; so that when a Hindoo of large
landed Property had a Residence in Calcutta, which gave us a
Jurisdiction over his Person, although his Property was out of the
Limits, yet Bills in Equity were on that Account filed against him
in the Supreme Court, which did in fact bring under the Judgment of the Court a very considerable Mass of Property belonging
to Persons of that Description living in Calcutta, though the Property itself was beyond the Limits; and I have every Reason to
believe that the Natives were perfectly satisfied with the Judgment
of the Supreme Court upon all Matters of that Description that
were brought before the Court, and as most, or nearly all, indeed,
of the Natives who had Property within the Neighbourhood of
Calcutta had Houses in Calcutta, Property so situate bore an
advanced Price beyond the Market Price of Landed Property in
general in the Provinces, but might have been in part owing to
the nearer Neighbourhood of the Capital, still that increased Value
extended a long Way beyond the mere Range and Capability
of raising Buildings and other Improvements in the Vicinity of the
You have no Reason to think that the Natives have any Aversion
or Disgust with the English Law, as being English?
I have every Reason to believe, from personal Communications
made to myself from many of the principal Hindoos in Calcutta, that
they considered it a very great Advantage to them to have both
their Persons and Property under the Judgment of the Supreme
Court, reserving their own Laws to be administered in the
Instances before mentioned.
Does the same Observation extend to Mohamedans as well as
I believe that it does; but the Mohamedans, except some few
Persons of very high Rank, are not generally in possession of much
Wealth, like the Hindoos, and have comparatively but small
Landed Possessions compared with the Hindoos, and therefore we
had much fewer Causes respecting that Class of the Population
than we had as to the other.
Do you suppose the same favourable Feeling towards the English
Law would prevail among the Natives, supposing its Authority to
be extended in the Country beyond the Limits you have described?
I am perfectly persuaded that the Native Population do entertain
the Opinion, that being placed under the Jurisdiction of the
Supreme Court would be advantageous to them.
Do you state that from Opinion merely, or from actual Communication with any Natives not now under the Authority of the
I state that from personal Communication with many Natives,
but of course they were Natives that I was in the habit of seeing
in Calcutta from Time to Time. I have only occasionally seen
Natives from the Upper Provinces, and have had very little of this
sort of Communication with them; but the generality of Persons
with whom I have had much Communication of that kind were of
necessity Persons either living within Calcutta or within the near
Neighbourhood of it.
Have you in any Instance found that the possible Extension of
the English Law among the Natives was a Subject of Apprehension
Certainly not, provided their own particular Laws of Inheritance
and Succession and Contract were preserved to them; I do not
mean to say that they preferred our Laws of that Description to
their own Laws, but the Administration of their Laws by a Court
constituted as the Supreme Court was.
Reserved for them in the same Manner as they are within the
Limits of the Calcutta Jurisdiction?
Were the Native Authorities, Pundits and others, to whom you
had recourse for the Administration of Hindoo and Mohamedan
Law, Persons regularly designated for that Purpose, or called upon
occasionally as the Court might think fit?
There were certain official Pundits and Moolvies appointed expressly for the Court. In that Appointment the Court always
consulted the general Opinions of the respective Portions of the
Native Population, as to those who were best calculated in the
Repute of their Class to give the best Advice to the Court on
Questions of their Law; but it sometimes happened that, upon
Questions of disputed Law, the Court was not entirely satisfied
with the Opinions of those particular Pundits or Moolvies, and
upon all Occasions of that kind we took the Opinions of others,
the most celebrated Pundits and Moolvies we were able to resort
to, in order to guide our Judgment upon the Matters in dispute.
Persons of that Description, who were in Attendance in the Court
of Sudder Dewanny Adawlut, which was likewise sitting in Calcutta
for the Purposes of the Provincial Judicature, were always at hand,
and we were always able to apply to them; if they all agreed upon
the same Doctrine, we of course adopted it; if they differed, we
then gave our Judgment upon what we thought was the best
course to pursue in reference to the general Spirit of the respective
Codes, and for the furtherance of Justice.
Can you state generally the average Duration of Suits before the
When I arrived in Calcutta, I found no Arrear of Suits. There
was nothing that was standing for Judgment, and every Cause, up
to the Extent that the Parties themselves thought proper to bring
it, was forwarded; and when I left it, I left it in the same Situation;
every Cause, as far as the Court was concerned, was carried to the
Extent the Parties thought proper to carry it, and there was no
Cause standing for Judgment.
Are the Fees and other Expences of Proceedings regulated by
No; that is left to the same Feelings that prevail here. The
Fees were considered as the quicquid honorarium, in the same
Manner as at the English Bar.
Are the Expences, in point of fact, very considerable?
In point of fact, in Causes of any Weight, the Expences are
Does any Mode occur to you in which they could be
There is no other Mode of doing it, except by exercising a very
strict Discipline over the Taxation of Costs, which was exercised
in many Instances when the Attention of the Court was called to
it. Every Bill was taxed in the ordinary Course of Proceeding
by the Master or other Officer of the Court, but still the Expences
were undoubtedly very heavy, and we endeavoured on various
Occasions to contract them as much as we could, but still we found
them heavy; undoubtedly more so than was desirable.
Do you suppose that an extended Application of the Authority
of English Law, supposing it was desirable, could be effected in
the Country without an Increase of Expence attending the Rules
That would depend upon the Extent to which the Reform of the
present Judicial System was carried. If English Courts, similar to
the Supreme Courts now existing, were to be established throughout
India, I have no doubt it would tend to a very great Increase of
Expence unavoidably. I think that would be most desirable,
except on the Question of Expence; but I believe that a great
deal may be done, without going to that Extent, at a very moderate,
if any, Increase of Expence, but not so perfectly. Our legal
Machinery is exceedingly excellent in its Kind, but is too dear.
I have formerly written some Observations upon this and other
Subjects connected with the Administration of Laws in India,
which, if it is desired by the Committee, I will deliver in. The
greater Part of those Observations were written after I had been upon
the Bench about Two Years, during which Time I endeavoured, in
every Way that was within my Reach, to obtain Information upon
the Subject at large; they were then dispatched Home, but subsequently to that Time, and from Time to Time, as either I saw
Reason to correct any Opinion I had before advanced, or obtained
any fresh Information, I made Notes and Memoranda upon the
original Papers which I had with me.
Sir Edward Hyde East is requested to deliver in these Papers.
You mentioned that the Supreme Court exercised Jurisdiction
over Real Property beyond the Limits of Calcutta, through the
Medium of Persons resident within Calcutta; was that in consequence of a Fiction of the Law or a positive Enactment?
It was in Equity Cases where the Person resided within our
Jurisdiction, and therefore those Complainants who wished to sue
him preferred suing him where he lived, because it brought their
Cause for Judgment before the Supreme Court, instead of suing
him where his Estate lay, within the Jurisdiction of the Mofussil
You were understood to say, that you imagined the Natives
generally would be desirous of having the British Judicature
extended over the rest of India?
That is my Belief.
Does that proceed from your Opinion that their Laws would be
administered more consistently and strictly by the Integrity of
British Judges, or from any Desire that there should be any Assimilation between their Laws and ours?
My Belief is, that they did not wish to have their Laws of
Inheritance and Succession and Contract changed, but that they
thought that the Courts which had been instituted by The King
there; and filled with His Judges, would better administer Justice to
them. I do not speak of the Judges personally; there were some
most eminent Men in the Mofussil Courts; but I consider that the
Natives preferred as Judges Persons whom they supposed to have
been properly educated for the Purpose, and having the Assistance
also which they themselves derived in their Causes from the British
Bar. Those were the Inducements which made them prefer coming
under that Judicature.
In the Case adverted to just now, you reached the Jurisdiction over the Property in consequence of the Jurisdiction over
Yes; those Persons residing within the local Limits of the
Jurisdiction of the Court. I ought to explain, that in all Cases
in Equity the Jurisdiction is entirely over the Person, to compel
him to do certain Acts which the Court of Equity thinks conscientiously he ought to do. The only Jurisdiction which does in
effect reach the Property is through the Medium of the Person
being subject to its Controul, as being resident within the Limits.
Do the Moolvies and Pundits, who attend the Supreme Court,
receive any fixed Salary?
Yes; an annual fixed Salary.
Are those Salaries adequate to the Duties they perform?
They are adequate to their Condition in Society, I think. They
were so, at least, when those Salaries were established.
By what Law are the Civil Rights of Half-caste Persons, residing
without the Jurisdiction of Calcutta, defined in the Instances of
Marriages or Successions?
Their Situation is in many respects very perilous. Some of
them I know personally, Gentlemen educated in this Country; and
yet if they reside out of the Jurisdiction of the Court, being many
of them illegitimate, and who therefore could not be deemed to be
British Subjects within the general Meaning of the Laws passed
for India; the Difficulty was to know how to deal with them, for the
Mofussil Courts only administered the Hindoo Law to Hindoos, and
the Mussulman Law to Mussulmans. The Condition, therefore,
of these Persons, who were Christians, and living and associating
with British Subjects, and considering themselves as such, when
living out of the Limits of the Supreme Court, was so extraordinary and so anomalous, that it was a Subject of very great
Difficulty, and one of the Subjects which I have represented
for serious Consideration in the first Instance, in the Papers
Were not they considered in the Eye of the Law as Natives
generally, and subject to the Native Jurisdiction?
Subject as Natives, no doubt, to the Jurisdiction within which
they lived; they were Persons capable of holding Lands in India,
which British Subjects were not. That was an Advantage to
them; and when they have spoken of the peculiar Hardships of
their Situation, I have advised them to wait with Patience 'till
the whole Matter could be brought under the Consideration of
the British Government, so that Care might be taken that if they
were admitted at any Time to the full Privileges of British
Subjects, they should still retain their Power of holding Lands in
their own Country.
Were they defined to be Native Subjects by the positive
Regulation of the Court of Directors?
No, not that I am aware of; but all through the Acts of Parliament for the Government and Regulation of Affairs in India.
This Distinction is taken throughout between British Subjects and
those whom we also consider Subjects of the Crown, but Native
Subjects. It very frequently happens that even in the same Clause
they are spoken of as Two different Classes of People. Contracts
may be made between British Subjects and the Natives, taking the
same Distinction throughout the Statutes, so that we were unable
to put any other Construction upon the Term British Subjects
than British-born Subjects with their lawful Descendants.
Were the People described as Natives, as contradistinguished
from British Subjects, in the Regulations published by the
Governor-General in Council?
There may have been some such Description in the Regulations,
which I am not acquainted with; but in the Charter constituting
and regulating the Jurisdiction of the Supreme Court in Calcutta,
and the Statute leading the Charter, the general Terms are
Mussulmans and Gentoos. The Term "Gentoos" was generally
understood to mean the Hindoos, but the Term originally used
was Gentoos. Whether that was intended to comprehend all
other Descriptions of Asiatics who happened to be located within
the British Bounds in India, is, perhaps, very difficult to be told
at this Time of Day; and there is this Singularity in the Hindoo
Law, that when any Asiatics, such as Sikhs, Parsees, Chinese, and
so on, come and settle in India, they bring with them, as it is
understood, their own Civil Laws, in many respects, such as of
Marriage, Succession, &c. That is the general Spirit and Understanding of the Hindoo Law, so that all Questions of Marriage,
which in most other Countries in the World is a Question of local
Ceremony, and to be governed by the Law of the Country and
Modes of Adoption, and various other Matters, are regulated by
their own particular Customs, which they bring with them. It is
a singular State of Things, arising, probably, from the Circumstance
that India has been so frequently overrun by different Classes of
Conquerors and Settlers. I suppose it was found to be a convenient Arrangement which the Hindoo Law adopted; but we were
restrained from administering the Hindoo Law, except between
Hindoo and Hindoo, which increased our Difficulty in these
Questions. But there is another Circumstance that, perhaps, in
mentioning the Jurisdiction, I should have added, that the Charter
and its leading Statute provided that where there are Two Parties
before the Court, under contrarient Laws, as in a Suit between a
Mussulman and Hindoo, the Law of the Defendant shall prevail
between them; therefore, that Difficulty was provided for partially
in the first Instance.
Do the Half-castes follow the Religion of their Mothers?
Some of them no doubt have done so, from having been deserted
by their Fathers in their Infancy; but the greater Part of them are
certainly brought up as Christians. Those that we call Portuguese
in India are often the Descendants of Persons of that Description;
the greater Part of them are Roman Catholics; there are some
Protestants among them, and I believe that Number is increasing
By what Law are they regulated?
Those that inhabit within the local Ambit of the Jurisdiction of
the Supreme Court are governed entirely by the British Law, for
we have only Power to administer either the British Law to
British Subjects, or the Hindoo Law to Hindoos, or the Mussulman
Law to Mussulmans; and that is one of the Difficulties we had to
manage, that when there was any other Description of Persons
before us (and there are many Chinese, as well as other Foreigners,
settling in Calcutta), we could only administer the British Law to
them; we could not administer Hindoo or Mussulman Law to
them. Our Power of administering either of those Laws is
according to the Class to which it is to be applied; the Hindoo to
Hindoos, and so on.
Beyond the Jurisdiction of the Supreme Court, when you found
a Man who was neither a Mussulman or Hindoo, what Law did
you apply to him?
If he was beyond the Limit, we could apply no Law to him
unless he was a British Subject, or in the Service of the Company.
What do the Provincial Courts apply to him?
They administer the Hindoo Code and the Mussulman Code; I
am not aware that they can administer any other, though these
have, I believe, been varied and explained from Time to Time by
Government Regulations, which are forming a Kind of new Code
in the Mofussil.
If he was a Chinese, what Law would they administer to him?
I do not know what they could do in that Case; he would be
obliged to submit to the only Law that the respective Courts had
Authority to administer to him. In Criminal Cases there was
never any Difficulty about it, because the Criminal Code that was
exercised by the Supreme Court and the Mofussil Courts, within
their respective Limits, comprehended every Person living within
The Question respects the Provincial Courts?
Of course. If a Half-caste, who was illegitimate and not a
British Subject, was living under the Mofussil Court, and he committed any Offence, he could only be tried by that which was
originally the Mussulman Law; but it ought to be well understood,
that the Company's Government have from Time to Time made a
Variety of Regulations, and have adopted a very considerable
Portion of the English Criminal Law by their particular Regulations, and therefore there is no doubt that he would have been
tried in some Degree in the Spirit of the British Law; but he
would not have been entitled to have had a Jury. He would have
been liable to have been tried even in Capital Cases by the Judges
of the Mofussil Court, without the Intervention of a Jury.
In one of the Answers you gave, it appears that you thought the
Natives of Calcutta preferred very much the Jurisdiction of the
Supreme Court; is that in Contradistinction to the Provincial
Yes, I must say that, and I have assigned the Reasons, not from
any personal Preference to the Individual, but to the System as
exercised by the Supreme Court.
The general Satisfaction they expressed with respect to British
Subjects did not apply to the Provincial Courts?
No; I always understood it to apply to the Supreme Court.
The Laws in those Provincial Courts, however, were administered
by British Judges?
The Laws in the Provincial Courts were administered by British
Judges; and it happened to me while I was there to know many of
them, and very eminent excellent Men they were; and I should
say, that the principal Difficulty that they had to encounter, and to
which a Remedy, I think, ought to be applied, is, that when a
Man started in his early Days, he had all his Experience and
his legal Principles to acquire, and after having presided in
the different Courts of the Company for several Years, many a
Gentleman of great Ability and Integrity has made himself a very
excellent Judge; but when he departed, which was at a Time
when his Judgment and Experience were ripened, he left no Successor to his Knowledge behind him; and the next Person that was
to go through those Gradations, and to come into his Place, had
got to acquire all the Experience again, which I look upon to be
the principal Defect in that Constitution; thereby Men are not
educated for the great and responsible Situations they are afterwards to fill; they have no means of attending to hear the Judgments and to observe the Course pursued by those Persons who
had already acquired Experience, but that Experience dies or
departs with the best Judges, and their Successors have got to
begin ab ovo, with acquiring the like.
A great Proportion of the Causes which are decided, some
Criminal and many Civil, are decided by the Registrar, that is the
first Step a Man takes in the Judicial Line?
So I understand; but many Years having passed since I collected any Information of these Matters in the Mofussil Courts, I
do not feel myself competent to give proper Information of the
Course of their Proceedings.
Those Persons who decide those Cases are Men of Two and
twenty, are they not?
They are very young, from the Necessity of the Thing.
At about what Period do they arrive at the Situation of
I am not sufficiently informed to give an Answer to that
What was the Amount of Business in the Supreme Court; how
many Causes were decided in the Course of the Year?
I have not taken an Account of that; but in one of the Returns
to the House of Commons, very lately delivered to the Members, I
think that is stated.
Were you sitting occasionally, or had you Terms?
We had regular Terms Four Times a Year; Criminal Sessions
Four Times a Year; and regular Sittings after each Term, both at
Law and in Equity. One was taken after the other.
What was the principal Cause of the great Expence of conducting
It arose, I think, from large Fees to Counsel, and high Charges
of Solicitors and Attorneys in great Causes. I am not aware that
Fees and Charges, or the mere Fees of the Court, were in common
Cases any thing extraordinary; but in great Causes, involving large
Property, the Attorneys and Solicitors certainly made very high
Charges, by Consent, I dare say, of their Clients; and then the
Fees were also very high: I am speaking of those in proportion to
what we know of here; on particular Occasions at Home, very high
Fees and Charges occur. I think a high Ratio was more general
there than here; otherwise a common Cause for Goods sold and
delivered, or any common Cause of that Kind, I believe was tried
comparatively as reasonably as it is here, or something higher, as
may naturally be expected, but nothing extravagant; but in great
Equity Suits, where very large Masses of Property were involved,
and where the People were often very litigious, and were sometimes
fighting for Victory almost as much as for Property, they themselves encouraged a great Latitude of Expence. I may add, that
when long Examinations were taken in Equity Causes, or long
Accounts, or large Sums of Money brought into Court, the Fees
of the several Officers of the Courts were very high.
Do you know at all the State of Litigation as between the Lower
Provinces and the Upper, the Quantity of Suits depending at any
No, I am not able to state that; but I believe that the Information
may be obtained from Parliamentary Papers. The Arrears at
Times have been very great; but it is to be borne in mind that
Native Persons of large Property being debarred by the existing
State of Things from the common and ordinary Excitements of
Life, they certainly do indulge to a very considerable Degree in
the Love of Litigation; it may be said to be one of their principal
A great Number of Causes up to a certain Extent are decided
by Native Officers?
Those are to a small Amount in Value.
Had you much Opportunity of being acquainted with the
Character of those Officers, and the Degree of Confidence to be
placed in them?
I had no personal Knowledge of those Officers; but I must
confess that the Characters I have heard of the Generality, both
from Europeans and Natives who had such Knowledge, were very
far from being of a Nature to encourage one to put a great deal of
Judicial Power in their Hands.
That you apply as much to the Judges as to those Persons called
Vackeels or Agents?
Whenever any Men of that Description, I should speak rather
of a great Number of them, are placed in any Situation of Authority, it has been, I fear, too much the Custom with them to avail
themselves of it for their own pecuniary Advantage; but I am not
so able to speak to that as Gentlemen who have presided or
officiated in the Mofussil Courts. I am quite sure of this, that the
Government had but a bad Opinion of them there, because there
have been many Regulations made by the local Government from
Time to Time, of the most degrading Character to Individuals of
that Sort, in order to guard against their Corruption.
May Prejudice have had any Influence in that?
It may have had to some Extent; but general Experience, I
believe, called for it.
Do you think that the Opinion you have expressed as to Native
Judges applies to the Native Officers attached to the Court, where
Justice is conscientiously administered by an European?
Yes, that was a common Opinion; but we had no such Officers
attached to the Supreme Court, except the Pundits and Moolvies,
whom we consulted on their respective Codes.
There is a Sort of Officer belonging to the Zillah Courts; what
do you believe to be the Character of those Persons, whether they
were subject to Corruption?
Those I believe are the Suddar Aumeens; they are some of those
to whom I allude; but that is merely from what I have commonly
and generally heard, for I had no personal Knowledge upon the
Had you seen enough, while in India, of the Conduct of the
Natives to give an Opinion as to any Improvement which might be
made in the Administration of Justice in India, by introducing a
greater Number of Native Officers?
In the Papers I have drawn up, and which I sent Home some
Years ago while I was in India, I have pointed out a Mode.
You have stated in one of your Answers, that in Equity Cases,
where the Person resided in Calcutta, and his Property was out of
the Jurisdiction of your Court, you came at the Property by means
of the Person who was within the Jurisdiction; how did that apply
in Cases where you were obliged to appoint Receivers to Property
of large Amount, applied to a Property out of the Jurisdiction, and
not to the Person?
Where the Parties were brought before the Court in the regular
Course of its Jurisdiction, then the Property which was in Dispute
between them was incidentally brought also under the Jurisdiction
of the Court, so as to be dealt with by their Decree; but when we
came to execute a Decree against a Defendant, all we could do was
to lay hold of his Person 'till he did such and such Acts ordered by
the Court. It would be well to look further into this Subject, and
clear any Doubt, if such there be, by a Legislative Provision, calling
in the Assistance of the Provincial Officers of the Company.
Could your Receivers, appointed out of your Jurisdiction, enforce
the Receipt of Rent, or execute the Duty which they performed,
only under your Jurisdiction?
Yes; they could and did.
During your Stay in India, had you any Opportunity of forming
any Judgment upon the Question of Suttees; did any fall within
your immediate Notice?
I was never present upon such an Occasion as that; I always
avoided it. I have heard of them; they were considerably more
frequent in the Neighbourhood of the Presidencies than they were,
I believe, in the Interior of the Country.
What Reason do you assign for their being more frequent
in the Neighbourhood of the Presidencies, and consequently
in the Neighbourhood of increased Civilization, than in the
I think it arose, in a considerable Degree, from the Excitement
that was caused by Missionaries and others, in attempting to argue
down the Natives, and to get rid of them; that created a Spirit of
Opposition on the Part of those who were interested in preserving
that horrible Institution, and made them more active in endeavouring to accomplish the Purpose whenever they could.
Was there any Regulation by which Notice was obliged to be
given to any Officers of Government, of an Intention on the Part
of the Natives to have a Suttee?
There was a Regulation of the Government which required that
no Suttees should take place without Notice to the Magistrate of
the District, so as to enable that Magistrate to assure himself that
the Sacrifice was voluntarily performed by the Victim, and that
there was no Fraud or Force used in order to accomplish the
Purpose. But I have heard the Propriety of that Regulation
questioned, and I am not quite sure whether there was not, in
some Degree, a bad Effect produced by it, because it had something
of an Appearance, when the Thing did take place, as if it took
place with the Consent of the British Government; but the Regulation was certainly exceedingly well intended, and calculated to
prevent any actual Force or Fraud, by Intoxication or otherwise,
being made Use of for the Purpose of inducing a Victim, not
otherwise willing and desirous of sacrificing herself, to be sacrificed.
Practically, do you believe Suttees were held without such
Communication with the Magistrate of the District?
No; I have no Reason to believe that in any Case, after the
Promulgation of that Regulation of the Government, any Suttees
took place (at least I have no Knowledge of such a Fact) without
that previous Communication having been made to the Magistrate; but there might have been, without my knowing or hearing
Do you believe that Suttees became more or less frequent after
that Regulation was made?
That I have no Means of judging of; I merely know, from the
Representations of various Persons, that Suttees were more frequent
within a certain Reach of the Presidency than they were in the
Interior of the Country.
That you attribute to the well-intentioned Zeal of certain Persons
who had interested themselves in endeavouring to put down that
Yes; that was the most common Opinion which I heard expressed,
which induced me to think so; but I verily believe that, by prudent
Conduct and Interference of the Government, the Practice is
capable of being (though not perhaps in a Moment) altogether
gotten rid of; that is my Belief.
Do you believe that may be more easily done by Influence
exerted by the Government, or by Legislative Provision?
I think much better done by Influence exerted by the Government; more simply done, without the Risk of a Convulsion, which
I could not be sure might not be created, if it was attempted to be
carried into Effect by Force, which a Legislative Provision would
You think the Practice may be got rid of by a prudent Interference on the Part of Government?
I am of that Opinion, and I do not think the Time required for
that would be very long. Since I was examined, I have been
informed by a Gentleman who had more personal Observation of
this Matter than I had, and of the Sentiments of many of the
Natives upon it, that in his Opinion they would gladly be relieved
from this horrid Practice by a direct Prohibition from the Government. I have no doubt that this was the Opinion of the more
enlightened Native Gentlemen, who did not like talking upon this
Subject, though ready enough to converse upon religious Topics in
You were understood to state your Belief that the Natives would
rather wish the System of Law, as administered in the Supreme
Court, to be extended; did you mean to confine that Observation
to Civil Causes, or to extend it to Criminal also?
I meant both; but I should say that the Criminal Law, as
administered by the Mofussil Judges, approaches much more to our
Mode of Administration, except in the Event of a Jury, than the
Sir Edward Hyde East delivers in the Statements referred to by
him, which are read.
Vide Appendix on this Day's Evidence, Nos. 1, 2, 3, 4, and 5.
The Witness is directed to withdraw.
Ordered, That this Committee be adjourned to Thursday next,