Die Martis, 16 Martii 1830.
The Lord President in the Chair.
James Cosmo Melvill Esquire is called in, and further examined
What have you to lay before the Committee?
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.
The same is delivered in, and read.
(Vide Appendix to this Day's Evidence, No. 1.)
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 same are delivered in, and read.
(Vide Appendix to this Day's Evidence, No. 2.)
Can you state the Amount of the expected Diminution of
Revenue in Bombay?
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.
What is the probable Falling-off from the breaking up of the
Opium Monopoly in Malwa?
No Estimate has yet been received of the Financial Effects
expected from that Measure.
Can you state what is the Cause of the Falling-off of the Revenue
The Government of Bombay ascribe it mainly to the Poverty of
the Country in the Deccan.
Was that owing to any Accident of Seasons?
That is not stated as a Cause, except in the District of Broach,
and there to a small Extent only.
It is stated that Apprehensions are entertained that Defalcation
to a certain Extent will continue?
The Governor of Bombay, in his Minute, has expressed an
Apprehension of that sort.
What do you suppose the Cause of that Apprehension?
The View which the Governor takes of the State of the Country,
as indicating the probable Continuance of the Causes which have
produced a Deficiency in the current Year.
And conceiving that the Deficiency will continue for several
Seasons to come?
Is there any other Source of Revenue from Bombay that is at all
considerable besides that which arises from Land?
Has there been a Falling-off in them?
No; the Falling-off in the Land Revenue does not appear to
have extended to the Customs.
The Witness is directed to withdraw.
Thomas Warden Esquire is called in, and examined as
What Situation have you filled?
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
Were the Revenue and Judicial Lines kept distinct?
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
Was that last Arrangement found to be beneficial?
I think it was.
Has it often happened that Men have been placed in high Judicial
Situations, who had no previous Knowledge of the Laws they were
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
Do not a very great Variety of Usages prevail in the different
A very great many. There are hardly Two Provinces alike
with respect to their local Usages: even in Districts, or Counties,
if I may so say, in the same Province, there are various
The Effect of that, then, is to make it next to impossible to form
any general Compilation of Law?
I should think so. A Law providing for local Usages and
Circumstances, I should suppose, would be preferable to a general
Law to be enforced, and to subvert the Usages of the People.
In what Manner does the Judge ascertain the peculiar Customs
of the particular Provinces?
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.
In short, the principal Persons of each Tribe or Sect are called
to assist the Judge with their Information and Advice?
Does the Judge generally think himself bound by the Opinion
He is certainly required to do so by the Regulations.
There is an Appeal from the Judge to the Sudder Adawlut?
The Appeal lies from the Zillah Judge to the Provincial Court,
and from the Provincial Court to the Sudder Adawlut, or to the
King's Supreme Court, at the respective Presidencies.
In administering the Mohamedan Law, you consult the Mohamedan Judge?
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
Have not the Changes which the Regulations have introduced very much affected the Mohamedan Law; altered it a good
When the Customs of the Country are contrary to the Mohamedan Law, the Mohamedan Law is set aside altogether.
Have those Regulations introduced much of the Spirit of the
English Law into the Administration of Justice?
I think they have, with reference to the Law of Evidence, which,
under the Mohamedan Law, is in many Instances contrary to
Are all Questions of Tenure and Rights of Land tried before the
Collector, or many of them?
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
Do you know whether the Salt Tax was introduced for any
It was introduced, as far as I can understand, to cover the
Expences incident upon the Judicial Establishments. The Salt
Monopoly of Malabar was introduced under my Administration.
The Government have a Monopoly there; no Salt can be sold
but by the Government?
And that at a fixed Price?
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.
No Salt can be sold by the Manufacturer but to the Government?
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.
The Government equally derive a Profit from it?
And those Profits are appropriated to the Support of the Judicial
That Object originated the Salt Monopoly under the Madras
There exists a Tobacco Revenue in Malabar, does there
Is that conducted in nearly the same Manner?
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.
Does not there exist a Species of Slavery in the Province of
There does, and also in the adjoining Province of Canara.
Are they Domestic Slaves?
No; they are Slaves of the Soil; they are in fact a distinct
Caste of Hindoos; they are born Slaves.
Are they transferred with the Soil?
They are transferred with the Soil; and if the Soil be overstocked,
the surplus Slaves are sold, or mortgaged, or let out on Rent to
They are sold?
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
Are the Lives of the Slaves protected?
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
Is the Evidence of Slaves received in Courts of Justice?
Is that considered of equal Weight with that of Freemen?
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
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.
Is there Reason to think that in general they do feel much
Attachment to their Masters?
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.
Is the Master bound to keep him in his old Age?
Has the Slave any Resource if the Master should neglect that
The Slave could apply to the Courts of Justice.
They may be transferred from one Soil to another?
Yes; but still their Labour is entirely confined to the Soil.
There is a Power in the Courts to enforce a Support by the
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.
You state that by Custom the Master is obliged to support his
Slave; is there any Law that commands him to do that?
I am not certain whether the Hindoo Law does not provide
The Court receives Complaints if they are not provided for?
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.
In Cases of Impotency on the Part of the Slave, the Master
would not be likely to complain of Desertion; what then would be
the Resource of the Slave?
In Cases of Impotency Slaves are supported by their Children.
The Attachment between the Father and Mother and the Offspring
is very strong.
Then they are dependent upon the Affection of their Family?
Certainly; but still the Owner is obliged to maintain every one
of his Slaves, whether old or young.
In case the Master is unwilling to support his Slave, what
Remedy has the Slave to insure his Support?
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.
By Custom, you understand Law?
Exactly; that is, Common Law.
Has a Master any Power to separate the Families of Slaves?
In the Instance I have already stated, where the Stock is more
than his own Estate can employ, he has the Power of disposing of
the Surplus to his Neighbours.
Is there any Permission of the Magistrate required to effect that?
Is the Owner then the Judge of the Number of Slaves he shall
Is there any Restriction as to the Age at which the Children may
be separated from their Mother?
There is. I think the Restriction is from Eight to Ten Years,
but I am not certain as to the Age.
Is a Slave capable of being possessed of any Property?
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.
Is that a general Case?
That is the only Instance which occurs immediately to my
By the Custom or Law of the Country, should you suppose a
Master to have Power over any Property a Slave might possess?
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.
In the Instance you have mentioned, to whom would the Property
descend upon the Death of the Slaves?
To their Families. It is a single Instance I am speaking of; it
is the only one within my Knowledge.
There is no Legal Obstacle to its being the Case in other Parts?
I should imagine not.
Has the Master any Power of Punishment of his Slave?
There is no Punishment precisely provided for by the Regulations; but a simple Chastisement would be overlooked by the
Collector and by the Court. Cruel Treatment is punishable by the
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
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
Does that include the Province of Canara?
No. The very degraded Class to which I have referred, under
the Title of Nâayadies, as being nearly extinct, I compute may
amount to less than Fifty Families.
Can you state what Circumstances led to their Extinction?
No. The Tradition of the Country makes them out to be the
Aborigines of the Country.
The System of Castes is more rigidly observed in Malabar than
in other Parts of India, is it not?
I imagine it may be.
During your Observation of the Country, did the Slave Population, relatively to the rest, increase or diminish, or remain
They have, in my Opinion, diminished. The Nâayadies, who
are not Slaves, have diminished in a greater Proportion.
Did any Part of that Diminution of Slaves arise from voluntary
Manumission on the Part of the Masters?
Are the Observations you have made on the Subject of Slavery
confined to Malabar and Canara?
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
Those Slaves are exclusively employed in Agriculture?
What is the principal Produce of the Province of Malabar?
The Slaves are principally employed on Rice Lands.
Is that grown for the Subsistence of the Province itself, or is there
a surplus Produce for Exportation?
For the Province itself. The Produce of the Country, when the
Company acquired Malabar, was not equal to its Consumption;
but when I left it the Produce was equal to the internal Demand.
What are the other principal Articles of Produce in the Province
Cocoa Nut, Black Pepper, Areca or Betel Nut, Ginger,
Turmerick, Arrow Root, Wild Cassia, the Teak and various kinds
of Woods, Cardamums, and various Fruit Trees.
Is much Sugar or Coffee cultivated in Malabar?
Coffee is produced there, very partially; but I should think that
it is capable of being produced abundantly.
Do you conceive the Coffee is cultivated by Slaves, or by the free
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.
Are you acquainted with the Allowance or with the Pay which is
made to the Slaves?
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.
Is there a certain Proportion of Produce allotted to them for
There is not, that I am aware of.
Are there any Native Christians in the Province of Malabar?
Under what Laws do they live?
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.
Are they Catholics?
There is a Sect of them who are under the Syriac Church. Dr.
Buchanan has written a full Account of them.
Are they in considerable Numbers?
Yes, in Travancore.
What Description of Salt is manufactured at Malabar?
Of a very bad kind indeed. Latterly there was no Manufacture
at all; it came entirely from Bombay.
Is there any Export of it to Bengal?
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.
Is any imported from Persia?
No; only from Mocha, in the Red Sea.
Can you state the Amount of Duty?
There is no Duty at all; it is purchased by the Government.
Can you state at what Price it is manufactured at Malabar?
It is manufactured, probably, at Ten Rupees a Garse, which is a
Madras Measure of 4,800 Seirs; that is, 24s. for 4,800 lbs.
Can you state the Price of the Salt to the Consumer?
The Retail is about 140s.
About Six hundred per Cent.?
Yes, about that. In Bengal the Retail Price is Four hundred
per Cent. higher than in Malabar.
It is not refined in any way?
No. The Salt that comes from Bombay is purer than that made
in Malabar. The best Salt is made on the Coromandel Coast,
which supplies Bengal.
Do you know whether free Export is allowed to Bengal?
Yes; but only on account of the Government.
Do not you consider Salt peculiarly valuable, as an Article of
Food, to Persons living on a Vegetable Diet?
Would it not be a great Advantage to the People of India if
they could be supplied with it on cheaper Terms than they now
It would. At the same Time the Monopoly, as it exists under
Madras, appears to me as good a System of indirect Taxation as
could be laid on the People.
Is not Salt in fact almost the only Sauce or kind of Condiment
that the Natives have to eat with their Rice in many Parts of
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?
I have no Doubt at all as to the Expediency of putting an End
to the Monopoly, if Revenue is excluded from the Question
Were you at Malabar before the Monopoly of Salt was
Can you state the Price of Salt previous to the Monopoly, as
compared to it afterwards?
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
How was it on the Average of Years?
On the Average of Years, I should suppose the Price of Salt may
have been at least Three hundred per Cent. less than the Monopoly
Price, but I speak merely from Conjecture.
Do you know the Price in any of the Native Provinces?
I do not.
Do you know whether regular Vessels were sent off to Bombay
and Mocha for the Salt that was imported from those Places?
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.
Is any Sugar grown on the Malwa Coast?
None, as an Article of Commerce. I have seen it only in private
Gardens for private Use. It is not a Production of the Country.
Were you ever at Pondicherry?
I never was.
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
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.
Under what sort of Settlement was the Province of Malabar?
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.
Is it a Ryotwar Settlement, or a Village Settlement?
It is a Ryotwar Settlement.
Did you make that Settlement in any Instances whilst you were
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.
In any Place in which you have been employed have you had
occasion to make a Ryotwar Settlement?
No, I have not. The Settlement that exists in Malabar I should
call a permanent Ryotwar Settlement.
How long has it existed there?
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.
Has much of the Property changed Hands within a certain
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.
They are, practically speaking, the Possessors of the Country?
They are, of the greater Proportion.
With them the Arrangements were made after they failed with
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.
Are there any Manufactures of any Description in that District?
There are some Weavers, who supply the common coarse
Clothing worn by the Natives of the Country.
Has that Business been at all affected by the Importations of
Cottons from England?
Not the Manufacture of Cloths worn by the lower Classes of
the People; their Clothing is very scanty; even the Women
(Native Hindoos) have no Clothing above the Waist.
Are there any Number of wealthy Persons in that Country
among the Population you describe?
The Zamorine Rajah is a wealthy Prince; he is the Descendant
of the Zamorine Stock that was found there on the Arrival of the
Are there any wealthy Subjects?
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.
In what Branch of Commerce are those Persons engaged?
All the Productions of the Province, particularly Pepper. Pepper was the Staple Article of Trade.
To what Place do they export it?
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.
It is through them that the Produce of the Province is chiefly
collected and exported?
Have they any Monopoly of Commerce?
None whatever; the Trade is open; but from their exclusive
Intercourse with the Interior of the Country they have practically
established a Monopoly among themselves.
Are there any Agents on the Part of the Company who collect
the Produce of the internal Country?
None. The Company had a Commercial Agent in Tellicherry,
for the Purpose of supplying their Investments of Pepper, but that
has ceased many Years.
Do they grow Cotton in the Province of Malabar?
Hill-Cotton, to a very limited Extent; indeed there is no Cotton
You stated that those who had Property are principally Mohamedan Merchants?
Are there no Native Christians who have any Wealth?
In Canara, there are.
What is the Proportion of Rent reserved to Government in the
It is very variable, as it exists in Malabar. I should suppose it
varies from Five Tenths to Eight Tenths of the Proprietor's Rent;
not of the Produce.
Do you consider Half too great a Proportion to accrue to the
Not of the Proprietor's Rent; Half the Produce I should think
You spoke of Tenants; whom would you distinguish as the
Tenants, and whom as the Proprietors?
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.
Do you consider the Ryots as Proprietors?
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.
So that the existing Proprietors are very different Classes?
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 this Right has formed a Subject of Dispute?
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.
The Witness is directed to withdraw.
Sir Alexander Johnston is called in, and examined as follows:
You have filled various Judicial Situations in India, have you
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.
Will you state the Nature of the Office you first held on going
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.
Will you state generally what you found to be the State of the
Administration of the Law at Ceylon when you first went out as
Advocate Fiscal, and the Nature of the Jurisdiction?
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 should say, yes; that and the System of Arbitrations which
they had had amongst them.
Will you describe the Mode by which the Trial by Jury was
introduced in Ceylon, and the Mode in which it is now administered
I stated all the Circumstances in a Letter I wrote in 1825 to
Mr. Wynn, at his Request, previous to his proposing the Act of
1826, which I beg to give in.
The same is delivered in, and read; and is as follows:
26th May 1825.
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.
See Pages 15 and 16 of the 11th Report of the Directors of
the African Institution, and from Page 93 to Page 100 of
the Appendix to that Report.
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
Did you observe any greater Aptitude in any one Sect than in
another, of those of whom the Cingalese Population is composed,
for serving on Juries or exercising other Civil Functions?
No; the Aptitude was not confined to any particular Sect.
Is the Degree of Knowledge equally diffused among the Mohamedan, Hindoo and Bhuddist Population?
Does it appear to you to be equally diffused in Ceylon, and in
other Parts of India, among the same Description of Persons?
I should say, generally speaking, that Knowledge is more
diffused in the Peninsula of India than it is in the Island of
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.
Are you aware whether any other Steps have been taken of the
same Nature in the other Presidencies?
I hear that Steps for carrying the Trial by Jury gradually into
Effect have been taken at Bombay, but I am not certain of the
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.
The same was delivered in, and read; and is as follows:
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.
But there is one Feature of the History of Offences for the last
Two Years so remarkable that it cannot without Injustice to the
People be overlooked.
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
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
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. *)
How long was it before that System of Trial came to be so well
understood as to work without Difficulty?
I found it work with Ease the Second Session after it was
You consider, then, that the Natives upon the whole shewed
very great Aptitude for the Duties they had to execute?
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.
Are you of Opinion that a Reduction of the Native Laws and
Usages into a more clear and compendious Form is practicable,
without giving any Dissatisfaction to any Part of the Native
I believe it would be extremely popular, and perfectly
Do you mean that it is so, by attempting to consolidate the
whole into one general Code, or by preserving the Features of
each particular System in so many separate though short Codes of
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
Can you state what was the Proportion of the Slave Population
in Ceylon when you went there?
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.
Were those Slaves entirely of a Domestic Description?
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.
The Regulation which conferred this Benefit on the Persons of
the Children born in Slavery after the 12th August 1816 applied
only to those in a Domestic State of Slavery?
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.
Was the Regulation, by which the Children of Slaves born after
the Year 1816 were to be free, adopted by the voluntary Act of the
Persons who would have been entitled to their Servitude?
By the voluntary Act of all those Persons, Christians, Hindoos,
Mohamedans and Cingalese. They at the Time were, every one of
them, upon the List of Jurors.
You connect then the Circumstance of their coming to this
Resolution with the Experience they had acquired in their Character of Jurors.
I firmly believe that it had a very decided Effect upon them.
There was no great Division of Opinion about it at the Time it
was adopted among themselves?
I believe none. They informed me of their Intentions to do so.
Was it in consequence of a Recommendation from Government?
There was no Recommendation from Government on the
With whom did it originate?
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.
In what Language were the Proceedings of the Courts carried on
They were carried on in the Language of the Jury that were
sworn to try the Fact, as detailed in my Letter to Mr. Wynn.
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.
What is the Language of Hindoos in the Island of Ceylon?
Tamul; the same as the Generality of the Hindoos on the Coast
In what Degree is the Persian generally understood, both in
Ceylon and on the Continent of India?
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.
Does the Persian possess any Advantages, as a Language, for the
Administration of the Law?
I am not aware of any.
The Witness is directed to withdraw.
Ordered, That this Committee be adjourned to Friday next,