Appendix 4 to the evidence of Sir Edward Hyde East Bart M.P.
[129]
No. 4.
Second Part of the Reform of the Mofussil Courts, &c.
THE present Mode of administering Justice in the Mofussil
Courts seems objectionable on Two Accounts.
Language.
First, the Language of the Court is Persian, which is Foreign at
this Day to every Description of Subjects in the Empire, and is
both impolitic in regard to the State, and inconvenient to the
People. It was natural for the first Mussulman Conquerors, whose
Language was Persian, to administer the Laws in their own
Tongue to the conquered People; but by the same Policy, if their
Conqueror and Successor, the British Government, do not adopt
the Native Tongue, it should give the Law in English. The
Koran having been written in Arabic, the Mussulman Expositors
of the Law would necessarily have preferred giving their Opinions
in that Language, but they were constrained by our Government
to give them in Persian, so that the Persian was not agreeable to
any Party. Upon the whole, the Adoption of the English Language
appears to be most expedient and politic; for the Language of its
Native Subjects is various in different Parts of India, and the
Limit of each is not very strictly defined. All would as easily, or
nearly so, addict themselves to learn English, and have stronger
Motives to do so, than each others Dialects and Languages. The
Revenue Accounts, formerly kept in Persian, have I understand
been directed to be kept, and are now kept, in English, for the sake
of Perspicuity.
The Hindee, (or, as it is more commonly called, the Hindustannee,) of which however there are, as I am informed, very
varying Dialects, is in more general Use than any other in the
Upper Provinces, and amongst the Mussulman Population of
Bengal; but the Hindoos of Bengal, as well as the great Population of Southern Hindustan, know little or nothing of it. The
common Language of the former is Bengallee. Besides, the more
it is desirable to impress the Stamp of the British Character and
Empire upon the People, the more ought the Study of the English
Language to be promoted: it will be the speediest and most
effectual Channel of conveying internal Improvements. By making
it the Language in which the Law speaks every Day to the People,
in all Parts of the Empire, Numbers of the most active and intelligent of them must become familiar with it, as they are now compelled to be with Persian. It is more likely to promote Justice
than the Use of the Persian; for the Judges at least will have a
sure Knowledge of their own Proceedings. The Facts will come
to them directly from the Suitors, through only One Translation,
for which Numbers are already very sufficiently prepared; whereas,
by the present Mode, the Suitor must first convey his Claim or
Defence through the Medium of a Persian Translation, and then
must take the Risk of his Judges having so intimate a Knowledge
of that Tongue as not to be likely to mistake either the Documents or the oral Pleadings. The Use of Two Tongues only, the
one of the Suitors and Witnesses, the other of the Judges and
Officers of the Court, must, in the Administration of Justice, be
safer, if not more expeditious, than each communicating with the
other through the Medium of a Third Langauge, foreign to both,
but most of all to the unlearned Suitors.
It will operate as a salutary Check upon the Judge himself, to
deliver his Judgment, and assign his Reasons, as every Judge
should be bound to do in open Court, in his own Tongue, without
any Cover. This Alteration will of itself be a great Acquisition;
but its Benefit will be inestimably enhanced by its Connection with
another Reform: that is —
English Pleaders.
The Introduction of English Pleaders into the Mofussil Courts,
I will not say in the Place of, (the Country may be safely left to
judge between them,) but in addition to the Native Pleaders.
That the Native Pleaders, with perhaps some rare Exceptions (fn. *) , do
not afford any effectual Assistance to the Courts, Experience has
too plainly shewn; that they frequently embarrass their Proceedings, I have been informed from the best Authority. How
can it be otherwise, when it is considered how deficiently they are
educated in all the Principles of real Knowledge and Judicial
Learning? The very Regulations (fn. †) , which the Government, at
the Suggestion of the Courts, has been obliged to make, to guard
against their Ignorance and Corruption, sufficiently declare their
general Incapacity, Proneness to Extortion, and degraded Condition. Contrast this with the enlightened Education, the profound
and various Learning, both professional and general, the elevated
Talents and free Services of the British Bars. Consider the Influence which a Set of Gentlemen, so educated, and disciplined to
Honour and Justice, must have, when dispersed throughout the
Country, engaging the Confidence of the wealthy, vindicating the
injured, and sharing the Feelings, and aiding by their Counsel and
Eloquence in the lawful Protection of all. Appreciate the Accession of Moral Strength to the Government from such an Acquisition of British Character, Talents and Influence; and all this
attainable with little, if any, additional Expence to it.
[130]
Modes of introducing English Pleaders.
There are two Modes by which this Measure may be executed;
one which I should prefer, because it would tend more speedily to
correct the excessive Evil of the present System, is immediately to
open the Bar of the Mofussil Courts to such English Barristers as
the Company might think proper to appoint. The Company's
Government might, if it were thought advisable, allot a certain
Number of Barristers to their several Courts throughout the
Country, according to the Exigency of the Case; and in favour of
their present Servants in the Judicial Line, the local Government
might be restrained from the Appointment of any of those Barristers to Judicial Situations in the principal Courts for a certain
Number of Years, after which they should be eligible; yet I think
that the immediate Introduction of a few experienced and approved
Barristers into the Judicial Seats of the Zillah Courts, where there
is the greatest Press of Business, would be of Public Advantage. (fn. *)
Appointment of Mofussil Barristers, Solicitors and Attornies.
The other Mode is slower, but will come to the same Result: it
is to make a Selection, on their Arrival in India, of those young
Gentlemen sent out as Writers, who are intended to enter into the
Legal Department; and to require them for a certain Period (say
Three Years) to attend as Students the Sittings of the Sudder
Dewanny and Nizamat Adawlat at Calcutta, Madras, or Bombay,
or other of the Mofussil Courts in the Neighbourhood, as well as
of the respective Supreme Courts (fn. †) , while they are also acquiring
the Native Languages in College; and at the End of that Period
to call some of them to the Bar, and admit others as Solicitors and
Attornies of the Mofussil Courts; from the former of whom all
Vacancies in Judicial Seats throughout the Provinces should in due
Time be filled, as Opportunity offered, and according to the
Judgment of the Government, as it is now exercised, with the
additional Information afforded by this kind of Public Probation.
The most distinguished Barristers and Solicitors would, in the
natural Course of Things, acquire the Confidence of the Natives
throughout the Company's Dominions; and thus, in no long Time,
bring a powerful Acquisition of Strength from Public Opinion to
the Government.
This Change of System would require an additional Number of
Writers, and perhaps of Persons advanced to the Years of Manhood, and in part qualified for their Destination; but the great
Proportion of them would soon maintain themselves, and improve
their Fortunes, by their own Talents and Character; and a Regulation might be made accordingly, upon a graduated Scale of Salary,
to be reduced from Year to Year. Its Operation, to postpone
their Advancement to Judicial Seats for Three or Five Years
longer than now takes place, will greatly benefit both themselves
and the Public.
Native Practisers.
The only remaining Difficulty would be in respect of the present
Native Practisers: these might still be retained 'till they dropped
off. For some short Time their Utility in Causes would be obvious,
in the best of them, on account of their intimate Knowledge of the
Language and Habits of the Suitors, and of the peculiar Customs
and Laws of the Provinces; others of them might be appointed to
inferior Situations about the Courts; and moderate Pensions, under
special Circumstances, would compensate all other reasonable
Claims, if any, upon the Government. Occasion of Jealousy in
future, if such should be found to arise, would be done away by
admitting Native Candidates also to the Bar, and to act as
Solicitors, who chose to educate themselves for such Functions, as
before, with the Acquirement of English, in addition to or in
place of Persian.
No Salaries to Barristers and Solicitors, as such.
The Company would not of course allow any Salaries to their
Writers who became practising Barristers or Solicitors, as such, at
least not after the first or second Year of their Practice, which
would have a good Effect in Two Ways; the one, in relieving the
Company from the Salaries of those Writers who entered the
Judicial Line; the other, in emulating the Candidates for present
Emolument and future Preferment, to honourable and useful
Exertions for acquiring the proper Knowledge and displaying the
Talents of their Vocation. And thus the Government itself will
obtain unbought Experience of those who are fit for the several
Judicial Employments when they become vacant; for the Choice
of whom at present it is obliged to grope in the Dark, or is fettered
by some blind Rule of Rotation or Seniority, quite inapplicable,
and dreadfully hazardous to the Exercise of Judicial Functions.
Future Benefits from Change of System.
[131]
I look to a future and more extended Benefit to arise in both
these respects from the Change of System. One principal Cause
of the Expence, Uncertainty and Delay of the present Course
arises from the too early Employment in Judicial Offices of very
young and inexperienced Men, who, having never studied Law
upon any System, must necessarily be unacquainted for the most
part with its Principles and Practice, and, as Matters are now contrived, have very little Opportunity of profiting by the Example of
others, who have not long preceded them in the same helpless
Condition. There is little or no Continuity of Knowledge and
Experience in the present System. The young Judge must set
off with a small Stock in Hand; and he leaves no Ear-witnessing
Successor to the hard-earned Experience which he afterwards
acquires. This begets the Necessity, and has enforced the
providing, of Checks upon Checks, not only to correct the
final Errors, but even to guide the interlocutory Proceedings, of
such Magistrates. Hence the cumbrous Machinery, Box within
Box, Appeal upon Appeal, which overloads the Judicial Proceedings of the Mofussil Courts, and leads to insufferable Vexation
and Delay, with proportionable Expence. There is seldom any
tolerable Certainty even when a Cause is to be heard; and the
Parties are accustomed to retain Agents at Monthly Salaries to
give Information of it. 0,00,03,04 5620 5618 7 11
Barrister-Judges and Magistrates; and Attornies.
But when Barristers of a certain Standing and Experience shall
be appointed in the first Instance to act as Judges and Magistrates
of Zillah Courts, or within certain Districts, having the Cognizance
of all but Capital and State Offences, (which should be reserved for
the Judges of the Superior Courts sitting in Bank or on Circuit,)
and also of Civil Causes to a moderate Amount, without Appeal,
(except as after mentioned,) more especially when Two, Four or
more Attornies (according to the Magnitude and Population of the
principal Towns and neighbouring Districts) shall be appointed to
act before those Barrister-Judges and Magistrates, to whom the
Clients may have recourse, if they please, for Advice and Assistance, there will be no Necessity for the perpetual Checks and
Superintendence which are now exercised; the superior Courts
and Judges will be relieved from much of the Burthen which at
present overwhelms them, and the Expence of the whole Establishment will probably be reduced.
Barrister-Judges and Magistrates.
It should be made a Condition of being called to the Bar of the
superior Mofussil Courts, that the Barrister should be liable to be
appointed to act as a Judge and Magistrate for a certain Period of
each Year in a Zillah Court or District within the Range of his
Attendance on the particular Court or Courts where he is permitted
to practise; and as there would be no Civil Appeal from his
Judgments in Matters of Fact, there would be no clashing of
Interests. If it should be found necessary that the superior Courts
should continue sitting as they now do, with very short Vacations,
this Duty must be borne in rotation. Reasonable Vacations tend
rather to promote than to impede the just Dispatch of Business, by
giving fresh Zest to those employed, and due Time for Preparation.
Consulting the Genius of this People, raising a due Respect and
Feeling for the Occasion in all present, I should recommend that
every Barrister-Judge and Magistrate, when acting in his own
Court, as well as in the superior Court, should wear a plain Black
Robe, and that the superior Judges should have their proper Robes
of Office. That each of these, on his Entrance into Office, should
be sworn to his Allegiance and Duty in open Court.
The Barrister-Judge and Magistrate should be permitted to
receive certain reasonable Fees of Court (of which public Notice
should be hung up in a conspicuous Place in his Court) for all
Business done by him as a Judge and Magistrate, leaving his Bar
Fees as Counsel in the superior Court to be purely honorary.
This, with his Practice as a Barrister in the superior Court or
Courts of his District, would probably compensate his Services as
Judge and Magistrate; or if that were doubtful at first, a moderate
additional and temporary Salary from the Public during his
Magisterial Sessions, to make up the Deficiency, if any, according
to the present Establishment, would suffice, with the Expectation of
future Preferment.
Attornies.
The Attornies permitted to practise in the same District Court
would naturally obtain and would principally look for their
Emolument to the Legal Business of the District, in proportion to
their Character and Talents. They would always remain responsible for their good Conduct, under the Superintendence and
Controul of the superior Court. In addition, they would attend
on the Barrister's Court, and might each in his Turn, Month by
Month, register and attest its Proceedings; and each should be
entitled to moderate Fees for his Trouble, besides a small Salary
from the Public Purse during such registering, by way of Retainer.
Each of these Officers would be a Check upon the Conduct of the
other, to prevent Abuse. They may be eligible to the higher
Judicial Situations, as a Reward of superior Talent and Merit.
The Assistance of these Attornies in preparing the Cases which
come for Trial before the Circuit Courts or superior Tribunals
would be invaluable to those Courts, by methodizing and expediting
the Pleadings and Evidence, and bringing them to so many distinct
Issues, elucidated as they would be by the final Assistance of the
attendant Barristers, which would save an Infinity of Time and
Labour, now lost to the superior Judges, in developing undigested
Masses of Paper with which they are now overwhelmed, or in the
mere Drudgery of inferior Clerks. This would prevent that
Accumulation of Arrears which no Human Exertions of Industry
and Talent can now keep down.
Pundit, Moolvy, Interpreter, Peons, &c. [132]
Besides an Interpreter, Pundit, Moolvy and an Establishment of
Peons to attend and execute the Orders of the Barrister-Judge and
Magistrate in Court, the Headman of every Village in the District
(and more in the greater Villages and Towns) should be sworn in
as Officers to assist Process and preserve the Peace, with a certain
Badge of Office, conferring Honor in the Eyes of the People. If
it be thought necessary or expedient that the Barrister-Judge and
Magistrate should be duly qualified in the Languages of the Country
to act without an Interpreter, the latter would be saved; but this
Saving will delay the Period of Relief in this Mode, and may even
prevent, at Times, the Acquisition of Barristers of a higher degree
of Talent and Experience, a few of whom would be invaluable, as
Models for the rest. At least the Office might be temporary.