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