Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London, [n.d.].
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Die Veneris, 14 Maii 1830.
The Lord President in the Chair.
The following Papers are delivered in by Sir Thomas Strange, and are read:
Extract of a Letter from The Right Honourable Lord Wynford to Sir Thomas Strange, dated January 1830.
Do tell me what sort of Persons the Judges of the Native Courts are; and whether it would not be well to provide a Supply of Men regularly educated in Hindoo Law, and in the Principles of Jurisprudence, to be appointed by The King, to preside in those Courts; as the ultimate Appeal must be to The King in Council, the Members of which cannot be expected to be Sanscrit Scholars.
Extract of a Letter from Sir Thomas Strange to The Right Honourable Lord Wynford, dated 19th January 1830.
At the Place from whence I write, I shall be able to give your Lordship the Heads only of what I think on the Inquiries you are pleased to make.
1. On the first Point; viz. "What sort of Persons are the Judges of the Native Courts?" I have little Difficulty.
The Company's Servants throughout the whole of our Indian Possessions are at the present Day, generally speaking, well educated, well bred, and well principled. Your Lordship will understand me to be alluding to the Civil Servants, about whom your Inquiry is. They are a most respectable Body, from among whom I believe the ablest are selected for the Judicial Duty. Still these young Men are not Juris-periti. Jurisprudence has but slightly entered into their Education before they go out, and they have no Means of attaining Proficiency in it, or much Inducement to attempt it, after they have reached their Destination. The Languages are the principal Objects of their Study. By Attainments in these it is that they are chiefly distinguished. Possessing these, more or less, they consider themselves as having got the Key of all they want; prepared to solve every Difficulty, and to discharge any Duty. With regard to that of a Judge, I do not say that it is a Maxim with them, that ex quovis ligno fit Mercurius. On the contrary, I do the Indian Governments the Justice to believe that they are, according to their Means, careful whom they make Judges. What I mean is, that the State of the Service does not exact in the Candidates any appropriate Knowledge or Experience. The Native Courts have no learned Bar, which helps to make a learned Bench. They have nothing of the kind; and, in some respects, so much the better perhaps for the poor Natives. Even the Native Law which they have to administer is I apprehend but scantily known among them, depending for the most part, as they do, upon their Moolvies for the Mohamedan, and upon their Pundits for the Hindoo Law; of which latter Persons your Lordship seems to have formed no very flattering Opinion. In all my Time I resisted the Appointment of Pundits to our Court, thinking we should do better without them.
2. Your Lordship proceeds at once to ask, "Whether it would not be wise to provide a Supply of Men regularly educated in Native Law, and in the Principles of Jurisprudence, to be appointed by The King?"
This is a Question of some Delicacy, but with me not of more Difficulty than the former one.
I have long thought it a Desideratum in our Indian Policy, that The King should have something to do with the Administration of Justice in the Provinces as well as at the Presidencies. It would appear to me to be for the Efficiency as well as the Dignity of Judicature that it should be so. I have already touched upon Efficiency. His Majesty has not, with reference to the Interior, so much as divisum imperium with the Company. He is, with His Parliament, the controuling Power in the Government of India; strange that he should have nothing to do in providing for the due Administration of Justice among the Millions in the Interior! I am far, very far, from wishing to see the Charter of the Company discontinued, and all Power and Patronage transferred to The King; but I ardently wish to see him in His Judicial Capacity, more or less, among the great Mass of those His excellent Subjects; by whom, in the Exercise of this His paternal Function, I know He would be received with Reverence and Affection, as well as with implicit Obedience. He sends His Soldiers among them; what good Reason can be given why these should not be accompanied with His Judges?
What of Delicacy there is in this Question regards the Patronage of the Company, and the Jealousy of their Servants; Considerations fit to be attended to, but not in their Nature decisive. The Difficulty of it concerns the Extent to which the Royal Intromission in the Judicial Establishment of the Interior might with Propriety be recommended.
I do not think that the Case requires an entire Supercession of the Company's Judicial Function in the Provinces, such as has at successive Periods obtained at the Presidencies; at least I would not propose so great a Change in the first instance. Your Lordship may know, that for the Purpose of Judicature British India is divided into Provinces and Districts called Zillahs. Without Book or Papers here, I cannot say off hand how many there are of each belonging to the respective Presidencies, or the Proportion they respectively bear the one to the other. This Information will be easily obtained from any Indian Register. In the Zillah Courts is vested the original Jurisdiction of Causes; the Zillah Judges and their Registrars sharing it in specified Proportions; the Registrars acting as a sort of Assistants to the Judges in Matters of comparatively small Moment, with an Appeal from these Courts to the Provincial, and from the latter to the Sudder Adawluts at the Presidencies. The Provincial Judges (of which there are Three to each Court) exercise Criminal Jurisdiction, going Circuits. I should be for leaving the Zillah Courts as they are, for the present at least; and the Provincial ones too, with the Exception of the Chief of each, who I think should be appointed from Home by The King. He, with his Two Company's Assessors, would do much to keep all in order, to correct Practice, and diffuse right Principles. The Delay and Expence of Justice in the Interior are I fear crying Evils; the Accumulation of Causes in many Places, immense; and the Difficulty of getting at the Courts at all, from the Distance, often, of the Suitors and Witnesses, great; amounting almost to a Denial of Justice. Able and upright Men, invested with the Royal Character, at the Head of the Provincial Courts, might operate sensibly upon these Evils; and the Innovation would not need to be felt as excessive, either by the Company or their Servants. On the contrary, I should hope that they would feel gratified by the Association. It would have the Effect of removing in some degree from the Company a great Responsibility; and this Advantage would attend the leaving untouched the Appointment by the Governments of the Two Provincial Assessors, and the Zillah Judges, &c. &c. that the Study of the Native Laws and Customs would continue to form the Duty of a Portion of the Civil Servants, stimulated the rather to it by the Arrangement in contemplation. To give due Effect to such an Arrangement, the Provincial Chiefs should be such in Knowledge of the Laws and Languages, as well as in Name and Authority. In what Way this might be provided for I am not quite prepared to say. Something might no doubt be done by the Means we possess through Study at Home; and some Test might be devised to satisfy the Chancellor as to the Pretensions of a Candidate. What occurs to me is, that a Judge appointed by The King for India might be required to remain upon his Arrival at his Presidency, his Commission and a Part of his Salary suspended 'till he should have accomplished himself in a competent Knowledge of the Two Native Codes, particularly the Hindoo, as well as in the Dialect spoken in the Part of the Country in which he would have to officiate. This is what a competent Person from Home would always be able to do in less than a Year, in the Course of which he would be deriving many collateral Advantages from his Intercourse with the Presidency. It would be fit, I think, that whenever he might feel prepared to tender himself for the Purpose, he should be liable to an Examination in the particular Language or Languages, by Persons to be selected for that Duty; but not in the Laws, his Attainments in which I would always leave to the Honour of an English Barrister.
I come now to the Sudder Adawlut, the Court of Appeal from the whole, and the dernier one in India; a most important Tribunal, the President of which should also, I think, be a Person to be appointed by The King. His Salary and Advantages could not be less than those of the Puisne Judges of the Supreme Court; to rank with them according to the relative Dates of their respective Appointments.
Something of the sort of all this seems to me so obvious, that I forbear expatiating upon it; but One or Two Things I must not omit. The Company's Sudder is not attended by Counsel: The King's should be open to them. By this Means, the Judge would be always well informed, and the Appeal would stand a Chance of being better determined. In the event of an ulterior Appeal, the Judge of the Sudder should be instructed to transmit with it, in detail, the Reasons of his Judgment, for the Information of The King in Council. It is so I believe in all our Western Colonies, where an Appeal is made from the Supreme Court to The Governor and Council of the Colony; it was so at least I know at Halifax in Nova Scotia, where I twice attended upon Writs of Error, and delivered in person to The Governor in Council the Reasons of the Judgment alleged to be erroneous.
Should the Suggestion offered in the above Letter of the 19th of January be thought fit to be adopted, the Sudder Adawlut, attended by Counsel, might be made a useful School of Law, and preparative for the Company's Judges; the young Servants of the Company destined for the Judicial Department being required to add to their Proficiency in the Languages a regular and constant Attendance in that Court, to qualify them for Judicial Office. It would be well also if they were required to attend the Criminal Sessions in the Supreme Court during the Year in which they might be attending the Sudder.
As to extending the Jurisdiction of the Supreme Court to the Interior, or introducing its Machinery, with the necessary Appendage of Barristers and Attornies, into the Courts there, there is nothing that I should more deprecate. I speak with reference to Madras alone.
Robert Richards Esquire is called in, and examined as follows:
In what Situation were you in India?
I was appointed a Writer on the Bombay Establishment in the Year 1789, and after that filled several subordinate Situations in the Revenue Line. I was afterwards Private Secretary to Mr. Duncan, when he was Governor of Bombay. After that I filled the Appointments successively of Commissioner in Malabar; Chief Secretary to the Government of Bombay; Principal Collector of Malabar, for, I think, about Two Years; and, finally, a Member of the Government of Bombay, which I left in 1811; and since that I have not been in India.
The official Situations you have filled have afforded you an Opportunity of being well acquainted with the Nature of the Revenue Systems of India?
I had Occasion to inquire a good deal into the Revenue Systems of India when I resided in the Country, and I have since perused a great Number of Reports and official Documents on the same Subject; I have consequently drawn my Opinions, as well from my own Experience as from the Result of these official Papers.
Do you know whether Attempts have been frequently made to ascertain the Produce of the Country by the Means of Surveys; and whether those Surveys have been made with great Accuracy, or not?
Surveys have been frequently attempted, for the Purpose of equalizing the Land Tax of India, and reducing it to just and moderate Principles; but I believe that all those Surveys, as far at least as I am acquainted with them, may be considered to be complete Failures. Perhaps it will be as well to explain to the Committee what the Nature of the Land Tax is. When we succeeded to the Mussulman Administration of India, we found Principles adopted by the Mussulmans which of course it was natural for the British Government at first to continue. These Principles were founded upon the Mussulman Doctrine, of the Rulers of the Country being also the sole Proprietors of the Soil, and, as such, entitled to One Half of the Gross Produce of that Soil, as a Revenue or Land Tax. We adopted this Principle from the Mussulmans, upon succeeding to the Administration of the Dewanny in Bengal; and this Principle has been not only avowed by the Company's Government, but continued for a great Number of Years to be acted upon by their Servants. It is obvious that under the Operation of such a System there can be no such thing as Net Rent, consequently no such Person as a Landlord, properly so called. The Gross Produce of the Land would necessarily come to be divided between the Government and the Ryots employed in cultivating it. The whole Class of Landed Proprietors came thus to be abolished, or reduced to Beggary, throughout the whole of India where the Mussulmans had established complete Sway; but in order to the Realization of this Right, and to ascertain what might be the Gross Produce of the Land, Surveys have been attempted in different Parts of the Territory subject to the British Government. Those Surveys have been effected by Native Officers, followed by another Class of Officers commonly called Assessors, to fix the Rate and Amount of Taxation on the Land so surveyed. From the Result of some Attempts made by myself, and from all the Attempts of which I have seen Reports from other official Servants in India, I consider these Surveys to have been complete Failures. The Consequence is, that all the Revenue Accounts of Land and its Produce which have been of late Years examined by the European Collectors of India have been for the most part, indeed I may say generally, if not universally, found to be mere Fabrications. When I was Principal Collector of Malabar, a very remarkable Proof occurred to myself. I succeeded to a Gentleman who had lately effected what was called a Ryotwar Survey of the Province, founded upon the Principles which had been adopted by the late Sir Thomas Munro in the Ceded Districts. This Survey was found to be extremely incorrect. I reported its Inaccuracies to the Revenue Board at Madras. The Revenue Board were rather displeased at the Discovery, and required Proof of the Assertion, because this Survey had been effected by One of their own favourite Collectors. At this Time I had a Number of European Assistants whom I had stationed in different Parts of the Province of Malabar, giving them certain Circles to superintend. I accordingly instructed these several Assistants to compare the Ryotwar Survey with particular Spots of their respective Divisions; which they accordingly did, and reported the Result to me, as Principal Collector. These Reports contained the clearest Proof, upon personal Inspection by the Assistants themselves, of the grossest Errors in regard to the Assessment. Many of the Lands were found to be over-assessed by more than the whole Amount of the Gross Produce; other Lands were greatly under assessed; and others, that were properly subject to the Assessment, were not assessed at all. But the most remarkable Discovery made upon this Occasion was, that there were several Spots of Land inserted in the Survey Accounts which upon Examination by the Assistants in their several Divisions were found to be actual Jungle, and never to have been cultivated within the Memory of Man, although in the Survey Accounts they were most minutely described as containing so much Rice Land, so many Gardens, so many Plantations of taxable Trees, &c. All this I reported to the Revenue Board at Madras. It may however be added, since the Surveys that take place in India are even in the present Day sometimes dwelt upon as being capable of producing the beneficial Results which were anticipated from them by Sir Thomas Munro, the great Patron and Advocate of the Ryotwar System, that having had Occasion to express myself elsewhere upon the Subject of those Surveys, after a critical Examination of their Merits, the Opinion which I gave on summing up that Examination will, I think, if I have the Committee's Permission to read it, give a better Idea of the Nature of those Surveys, as well as the utter Impracticability of their being carried into Effect with the least Accuracy, than any thing I could here verbally adduce. In reference to the main Object of these Surveys, which is to ascertain the Gross Produce of a large Extent of Country, I expressed myself as follows: "A Proprietor or Farmer of Land, or both together, residing on the Spot, and knowing from Year to Year the exact Produce of every Field occupied, may fix the Value thereof with Accuracy between each other, in reference to Rent, which the Officers of Government might find no great Difficulty in afterwards ascertaining, and taking therefrom a fair Proportion as Revenue or Tax. But for public Assessors to ascertain the real Gross Produce of every Field of an extensive Empire, not only without the Aid but in opposition to the Will, because opposed to the Interest, of the Occupants of the Soil, is a Task of which some Conception may be formed by those who will take the Trouble to reflect on the following Circumstances:
"Let us suppose England to be divided into small Tenures not much bigger than Irish Potato Gardens (fn. 1) -the Produce of the Soil a great Variety of Articles, of which some one or more come to Maturity in almost every Month in the Year - the present Landlords forced to emigrate, or reduced to cultivate their own Lands, or perhaps converted into Zemindars, with Power to exact, fine, flog, and imprison, ad libitum-the Land Tax fixed at One Half the Gross Produce, to be ascertained by Admeasurement of every Acre, and by Valuation, or by weighing the Produce, or, in the event of Difference of Opinion with the Cultivators of any Village or District, by calling in the Farmers of a neighbouring District to settle the Dispute-from the oppressive as well as vexatious Nature of this Tax, let us also suppose that the Fears and Jealousies of Government occasion the Appointment of Hosts of Revenue Servants, armed and unarmed, some to make, others to check the Collections-that Accounts and Check Accounts be also multiplied to guard against Imposition-and that Servants required for these various Purposes be authorized to collect additional Imposts from the Cultivators, or to have Lands assigned to them as a Remuneration for their own Services-and that, under colour of these Privileges and Grants, excessive Exactions are enforced, leaving but a bare Subsistence to the Farmers-that this System of Taxation should be liable to Increase with every Increase of Cultivation-that the Defalcations of One Farmer or of One Village should be made good from the surplus Produce of others-that the Spirit of the People should be so broken by the Rigours of despotic Power as to suffer the Government with Impunity to step forward and declare itself sole Proprietor of all the Lands in the Country-and that its Avarice and Cravings had so multiplied Imposts as to inspire Cultivators with the utmost Alarm and Dread whenever Changes or Reforms were projected in the Revenue Administration, lest (as was generally the Case in India) further Additions should be made to their almost intolerable Burthens- let the Reader, I say, consider these Things, and then ask himself whether a Government Assessor, with every Soul in the Country thus opposed to his Research, is likely to attain the requisite Information for justly valuing every Acre of cultivated Land, including every Variety of Soil and of Product; or, if it could be justly valued, whether the Collectors of such a Government were likely to be guided by any better Rule than to extract from the Contributors all that could with Safety be drawn into their own and the public Purse."
Have you been much in the Interior of India?
I have visited several of the Districts of India under the Madras Government. I have been through Parts of the Concan and the Deccan, and have also visited, I may say repeatedly, every Part of the Province of Malabar.
Will you state the Effects which, according to your Observations, seem to be produced upon the People by the Operation of the Revenue System?
The Effect of the System I have thus alluded to is, in every Part of India, universal Poverty and Ignorance, as regards the great Mass of the People. It has been observed by all of our ablest public Servants: it is a manifest Consequence of our Revenue Systems, and most observable where those Systems prevail. The Case is different in some of the great Commercial Towns or Capitals, such as Calcutta, Madras and Bombay, where Commercial Enterprise is, generally speaking, much more lightly taxed. In those Places we observe the Accumulation of Wealth, accompanied by a considerable Progress in Civilization and in Knowledge.
Can you state to the Committee any Mode by which you conceive the State of Society in that Part of India subject to the British Government could be improved?
I think it might be greatly improved by employing the Natives more generally than we do in the Administration of the Country. I take one great Cause of our Failure to be the little Regard that has been paid to the Natives; the Distance at which we keep them. We estimate their Experience and their Talents too lightly; the whole of our Administration in India is consequently too much founded upon European Notions and Doctrines; and if the Natives were more generally employed in the Administration of the Country, I think that we should succeed better in adapting our Measures to their Rights, Usages and Comfort, which it is obviously the Wish of the British Government to do; but as long as we keep the Natives at such a Distance, and think so meanly of their Capabilities, I fear that our Administration in that Country will neither be profitable to us, nor ultimately secure.
Do you conceive that the Ryots have any Opportunity now of accumulating Capital?
Under the System which I have described it is obviously impossible. They are kept in a State which gives them little more than a bare Sufficiency to keep Body and Soul together. The Poverty of the Ryots is extreme; the Cultivation of the Country is consequently in a low State, and far less productive than it would be if greater Capital could be employed to improve it; but in the present State of the Ryots it appears to me quite impossible. The System in India is in fact very like what has been described in Europe under the Denomination of the Metayer System. It is a Division of Produce between Cultivators and Proprietors; the only Difference being, that in India the Proprietors are the Government or ruling Power, whilst in Europe there are individual Proprietors deriving a net Rent; but the Cultivators under the Metayer System being, like the Ryots of India, in a State of the most destitute and wretched Poverty, the Condition of the latter may be judged of by comparing it with that of the former; as long as the System continues it is therefore quite impossible that any Capital can be accumulated to promote internal Improvement.
Has not The East India Company made repeated and anxious Exertions to improve the State of the Ryots?
The Governments of India have been most anxious upon that Subject, as well as the Court of Directors in this Country. The Orders of the Court of Directors abound with able and humane Instructions to their Governments Abroad, for a just Administration of their Territories committed to their Charge. Many of these very able Letters are now in Print, and do great Credit to the Directors of The East India Company. I particularly refer in this Place to those which treat of "Protection to the Ryots." But the Circumstances which I have mentioned -the oppressive Nature of the Land Tax - the numerous Host of subordinate public Servants necessarily employed to realize and collect it - the total Impossibility of controuling those Servants by the Authority of the European Collector, and the Exactions and fraudulent Impositions and Oppressions committed by those Persons on the Ryots, have hitherto presented an insuperable Bar to the benevolent Wishes of the Court of Directors and the local Authorities in this Country being carried into Effect.
Do you conceive that the Judicial System that is now pursued in India is susceptible of Improvement?
I think it is susceptible of very considerable Improvement; and in any Attempt at Reform or Improvement in India I should certainly recommend that we were to commence with the Judicial Department. Our Judicial System in India was first introduced by Lord Cornwallis, in the Year 1793. There were then Courts established for the Administration of Justice, and altogether separated from the Revenue Servants, in whose Hands the Administration of Justice had been before. The Principle upon which Lord Cornwallis acted on that Occasion was perfectly unobjectionable; but the Courts which were established under the System his Lordship then adopted were entirely founded upon European Notions of Justice and European Forms of Practice. The Consequence has been, that the Courts were soon overloaded with Business, without effecting the Object the Government had in view, of affording complete Protection to the Ryots. It appears indeed, by several official Reports now in Print, upon the Subject of the Judicial Proceedings in India, that the Ryots are to this Hour, I believe, as little protected against the Artifices of designing Men, and more especially of the Natives filling official Situations, as they ever were. It may indeed be apprehended, that no System will be efficient for affording complete Protection to the Native Inhabitants until some important Changes take place, as well in the Judicial as in the Revenue Department. In speaking of the Revenue Department, I here allude to a gradual Reform in the System of Taxation; because, as that Taxation employs such a Host of Persons to collect it, whose Acts it is impossible to controul, Oppressions and Enormities are constantly committed, which our Courts of Justice, as now constituted, are very unequal to repress. There is a very able Minute upon this Subject, by Lord Hastings, then Lord Moira, dated the 21st of September 1815; and there is also a Regulation, passed in 1821, the Preamble of which contains a long and minute Detail of the Enormities that have been committed by our Native Servants, both in the Revenue and Judicial Lines of the Service. These Documents I would particularly recommend to the Attention of the Committee, as tending to shew what little Effect our Laws have had in protecting the Ryots against acts of Fraud and Violence; in which it is lamentable to observe, that Persons in official Employment are stated to be the principal Aggressors. The Regulation is numbered One, of 1821.
Do you think that Advantage would arise from the increased Employment of the Natives in the Administration of Justice in India?
It appears to me that what has been always wanting, and is still wanting, in India, is a Code of Laws suited to the Habits and Usages of the People, and to existing Institutions and Associations among themselves, particularly such as have been long established, and are well understood by the Community at large; and what I would beg leave to recommend for this Purpose is-
First, The collecting into a written Code, or distinct Codes, all that is useful from the Law Authorities of the several Castes in India, adding thereto all such Native Usages and Customs as would be classed in this Country under the Denomination of Common Law, and reducing the whole into regular and appropriate Enactments applicable to the different Castes or Races of the Population:
Secondly, Provision for giving due Efficacy and Effect to the Laws when enacted, by the Establishment of such Courts under European or Native Judges, as the Case may be, so that Justice may be given to Applicants at a cheap Rate, and at, or as near as possible to, their own Homes:
Thirdly, The Establishment of such a Course of Practice in the several Courts as shall effectually prevent needless Delay, Expence and Vexation; and,
Fourthly, What I consider of paramount Importance, the Appointment of a permanent Native Committee or Council, either with or without an European President, to revise and amend, alter or repeal, existing Laws, and to assist in the Formation of new ones, and to watch with unceasing Vigilance such as may be consequently confirmed, so as to be enabled to report to Government, as the superior Legislative Authority, such Amendments, Modifications or Repeals as Circumstances shall appear to render expedient or necessary. The Power of originating Laws should also be extended to this Committee or Council, who would submit the same to Government for Confirmation; and no new Law should be put in force that had not received the Approbation of the said Committee.
It may perhaps be thought that this latter Suggestion is a bold Measure. When I first suggested in 1813 a more extended Employment of the Natives of India, the Proposition was then thought visionary. Since that Period some of the ablest Servants in India have been convinced of the indispensable Necessity of employing the Natives in official Situations, more generally than was formerly the Case; and I do feel convinced, that if such a Committee or Council as I have now suggested were assembled at the different Presidencies of India, and Men of known Ability and Experience selected for the Purpose of composing it, the greatest Good might be expected to result from it, as well in revising existing Laws as in passing other Regulations both for the Judicial and the Revenue Departments, such as would enable us to carry on the general Administration of the Country much more successfully than it has ever been done hitherto. When I left India, I knew several Natives who were well calculated to execute a Duty of this kind. Since I left India, the Progress of Knowledge, and the Acquirement of the English Language and Literature, has been so great, that I feel no Difficulty in now saying there must be numerous Natives in India still better qualified for so important a Trust, and who would be highly gratified in being selected for such distinguished Employment. I have been the more particular in recommending this Native Council or Assembly to the Consideration of the Committee, from the Conviction of my own Mind, that without it we shall still be wandering in the Dark in India. But I would also employ the Natives in other important Situations. I think many of them well qualified to be Judges in the different Courts. Of late Years, they have been more extensively employed than formerly, in inferior Situations, such as District Munsiffs- Village Munsiffs; that is, local Judges or Justices, with limited Authority, in small Divisions of a Collectorship or Zillah. Latterly, their Powers have been somewhat enlarged, in consequence of its being experienced that they executed their Duties in many Instances with great Ability and Integrity. There are, no doubt, on the other Hand, Instances of corrupt and vicious Conduct among the Natives so employed; but Lapses of this Nature are, in many Instances at least, fairly to be accounted for from the present State of Indian Society. When Moral Improvement is more generally introduced among them, their Manners as well as their Principles will assume a higher Scale. Such indeed is my Opinion of Native Indians, that I think they might be trusted with greater Judicial Authority, and employed in higher Offices, than are now conferred on them. I think, for example, that it would be found of great Use, in every Court in which an European Judge presides, to have One or Two Native Judges, as the Case may be, sitting on the same Bench, with adequate Salaries, suited to the Dignity and Respectability of the Situation. Those Judges would be of infinite Use in the Examination of Witnesses, in facilitating Decisions in all Cases, more especially of Caste, and Disputes regarding Property, Inheritance, Adoption and other local Usages peculiar to the Natives of the Country. In respect to Criminal Trials, their Experience and Co-operation would also be of essential Service. They might likewise relieve the European Judges and Registers from much of the present official Details of their respective Courts, which are in many Instances quite overwhelming. In these various Ways therefore I think that the Aid of Native Judges, both in the Civil and Criminal Courts, would be attended with the greatest Advantage. I could mention an Instance in this respect that might perhaps be considered in point. I once presided myself in a Criminal Court in India where Numbers of Prisoners were brought before me for Trial, and some for Capital Offences; the Witnesses upon these Trials were necessarily examined through the Medium of Interpreters; and so difficult did I find it to ascertain the real Merits of the Case, in several of those Trials, that I could not in my Conscience venture to recommend a Sentence of Death, even where Prisoners acknowledged, as they often would do, the Commission of the imputed Crime. The Sentence of Death in those Cases happily did not rest with me, neither would I singly have undertaken the Responsibility of its Execution.
Are you of Opinion that the Natives might be employed as Jurors with great Advantage?
I have no doubt that the Natives would be highly gratified with being employed as Jurymen generally. I have seen many Letters and Representations from Natives upon the Subject of the Introduction of Jury Trial in India, in which their Objections, even where they did object, have mostly rested upon the Circumstance of their being only allowed to serve as Petit Jurymen; but if the Privilege was extended to them of sitting on Grand Juries and Special Juries, I am confident it would be very generally adopted by the Natives, in as far as it would tend to raise them in the Estimation of the Society in which they dwelt. I am also of Opinion it would be of great Use in the Administration both of Civil and Criminal Justice in India; for I am sure that Natives are far more competent to examine Witnesses of their own Caste, or the Inhabitants of their own Country, than Europeans are; they would thus be of the greatest Use in eliciting Truth in all Cases of Importance. But it is a curious Coincidence, that on this Subject I received, only a few Days ago, a Letter from a Native of great Respectability and Rank in Bombay, touching particularly upon the Subject of Jury Trial. The Writer of the Letter, as is generally the Case in Countries where the Inhabitants live under an arbitrary Government, is exceedingly desirous that his Name should not be known, and he has begged of me to suppress it; but knowing the Individual personally, I can vouch, not only for his high Respectability, but for his Rank and Consequence in Native Society. The Letter, of which this is an Extract, touches, not only upon the Subject alluded to, but upon some others which have been discussed in the Course of this Examination; and if it be acceptable to the Committee that I should read it, I shall do so with Pleasure. The Language, being English, is not quite so grammatical as some other Letters I have seen from Natives of India; but I give it precisely in the Terms in which I received it. It is dated the 12th of December 1829, and addressed to myself. "Perceiving," he says, "that you are anxious to be acquainted with Occurrences from this Part of the Globe, relative to the Natives under British Government, I, though inadequate to the Task, yet undertake to give you some Accounts, and I trust when this meets your Eyes it may be useful.
"Athough there are Accounts all over India, pretending to shew that the Natives living under British Government are quietly and peaceably enjoying themselves happily, I have no Hesitation in asserting, when their concealed Sufferings from the several present Systems of Government are unfolded," (I beg to say, that when he speaks of the present System of Government, he alludes to the System of Revenue which I have mentioned,) "that there cannot be any impartial and reflecting Mind to fail to be convinced of the Hardships on the Part of Government which the Natives are unfortunately subjected to, which in Justice require the Attention of the British Parliament for Reform or Modification. The Impositions are numerous; and if I were to detail all of them singly it would fill up a Volume. I shall therefore give you a few, which plunge the Natives (especially poor Class of People) more immediately into extreme Poverty and Wretchedness. Cultivators tilling the Lands for Subsistence, to whom all other Means of Employment being wanting, from the Rigour of the English Revenue Institutions, and the exorbitant Rate of Land Tax still existing, derive from Cultivation of their Lands a scanty Maintenance for themselves and their Families, after a hard Labour of Twelve Months, leaving little, or some of them rather no, surplus Produce to answer the Demands of Government for Revenue, and to supply all Expences of Cultivation and Implements of Culture, and to save Seed for the ensuing Year; consequently are compelled to borrow Money at heavy Interest upon Mortgage of their coming Crop; and are, from these Circumstances, doomed not only to a miserable but a confirmed State of Poverty. These Revenue Institutions and high Taxation, therefore, if not removed, ought to be modified, to relieve the great Number of Ryots of India, and the Landed Proprietors in general, from the present Distress.
"The Government here are well aware that the Hackery and Cart Drivers live solely upon the Hire they daily get. The former may, with whole Day's Labour, bring scarcely One Rupee, and the other Half or Three Quarters of a Rupee; notwithstanding, the Wheel Tax is raised to such an Extent, as Thirty to Forty per Cent. on Average upon the first established Tax, that these poor People can scarcely reserve a Trifle to maintain themselves and Family, the most Part of their Earning washing away by paying the Company's Tax and feeding the Cattle; and when they become in Arrears of Payment to Government, the Hackery and Cattle are liable to Seizure, and Sale by public Auction, for its Payment; by which they not only lose their Property, but also the Means of acquiring the Necessaries of Life. It is not only ruinous to the poor Class of People, but to the Community in general, as the Wheel Tax of Chariots, Buggy and Coaches are also increased to the above Extent. The Wheel Tax is moreover leased, since last Year, to the highest Bidder, which is no less detrimental to poor People. Unless a Change of these Oppressions and Hardships is adopted, the Population must lead a deplorable and miserable Life.
"The Tax exacted from the poor Bhaudary, or Toddy Drawers, upon each Cocoa Nut, Brab and Date Tree, is too heavy, in proportion to its Produce, and the monthly Rent paid to its Proprietors. There leaves a Trifle to the Bhaudary, after paying the Owner of the Tree and Government, which can scarcely suffice to maintain himself and Family; consequently the Proprietors Payment is always left in arrear for Five or Six Months, owing to their being forced to pay first the Government's unproportionate Demand, which is claimed as its own Share, besides the Imposts when Toddy is distilled in Spirits. From so many Payments upon each Tree, you will no doubt be able to judge what remains to afford Subsistence to these poor People; or whether they are reduced to extreme Poverty or Advancement; and if it is called Justice to the poor Inhabitants, by Government taking a large Proportion of Produce, and thereby leave the unfortunate People entirely destitute of the Articles of Life. The System of Taxations, in general so highrated, as collected here, is too obviously inconsistent with all sound Principle. If the British Government wish the Prosperity of India, how should they think it possible for any to prosper under the Pressure of so heavy an Imposition. Unless they remedy the Evils resulting therefrom, the Natives, it appears, will be rather deprived of their Lands and hereditary Possessions in a very short Time, and its Families reduced, from a State of Influence and Respectability, to heavy Distress and Ruin; and it is hoped that you may be able to put this to the Feelings of those Gentlemen of the highest Authority who may hear you, on the Expiration of the Charter.
"Sir Edward West, our late Learned Judge, did the Honour of permitting the Natives into the Petit Jury; on which Occasions the Europeans evinced their utmost Displeasure of setting with them; but the Learned Judge supported the Natives, and on several Occasions expressed in a very handsome Manner a Satisfaction from the Verdict they had returned upon Cases tried before them, as will be found on Reference to the Bombay Papers. Notwithstanding, it is grievous to observe the Opposition for admitting Natives to the Functions of Grand Juries, upon a Pretence that they are not eligible to act as such. There is no doubt that in former Times they were not sufficiently acquainted with the English Language; but at present there has been a great Improvement acquired, and still further Improvement in young ones is expected, from the Institution of Schools; and if a proper Selection is made, there will be found, it is presumed, a sufficient Number of worthy Natives, - Portuguese, Parsees, Hindoos and Mohamedans, at present, of very ancient respectable Family, intelligent, and worthy to discharge the Functions of Grand Jurors equally as the Europeans, more especially as they are acquainted with the Languages of the Country, and Customs. To this Effect the Natives of this Place have made a Petition; and it is hoped it will obtain the desired Object if the Parliament will take this important Point into Consideration; and it is also in Contemplation of petitioning as to their being admitted in Special Juries; and further it is deplored that Distinction exists between Europeans and Natives on all Occasions, being at the same Time as much entitled to Consideration and Respect as the Englishmen are. Besides, the Natives have a just Claim to participate at least in some Share of Civil Offices, as well as in the Magistracy and in the Justice of the Peace; and regret their being excluded entirely therefrom. In the Second Office, they will be better Judge than Europeans, being well acquainted with the Race of Natives, their different Languages, Habits, Conduct, Means of their Living, and Customs of the Country; and it is not to be doubted that they want (fn. 2) for a good Administration of Justice, and that there is no Honesty of Dealings in them. The Natives who are the principal Inhabitants of this Place are descended from Families of Respectability and good Blood, but in the Sight of Europeans are absurdly considered as lowest of the Nations, for which they are generally downhearted and vexed. Both in the Police Line and in the Justice of the Peace, here, Europeans are only admitted. Some of them are so young, inexperienced and unacquainted with the Manners and Customs of the People of the Country, that they decide Causes as they like, founding only upon the Regulation, without making any particular Inquiry into the Spirit of the Transaction before them, and as to the Condition of the People brought before them for Trial. It is because they cannot have proper Knowledge of the Country. But if the Natives should be admitted, and if any thing should appear striking their Minds for Alteration of the Regulations, and from the better Notice they possess of their own Country than Europeans, they would of course appeal to the highest Authority for Amendment of Facts and Regulations, thereby rendering a better Administration of Justice in their own Country, and at same Time satisfactory to the Population. About this important Point the Europeans never think of, but they go upon the Laws and Regulations of England; be it right or wrong, or inconsistent with the Custom of the Country, Decisions are passed. Unless the Natives be admitted as Magistrates, Justices of the Peace, Grand Jurors and Special Jurors, the Measures to be adopted for the future good Government of their own Country cannot take effect. Further, it is a Matter not to be disputed, the Natives being born under the British Colours, and thus continued for nearly Three or Four Generations, why should they not be entitled to the same Liberty and Privilege in their own Country as the Europeans. Thieves are introduced into the Country in numerous and unresistable Gangs, incorporated with Sepoys of the Battalions, and others, committing Murders and Depredations even in Daytime, by which Inhabitants are from Time to Time robbed of all their Property; but we do not see any Arrangement on the Part of Police so as to lead to the Detection of these Freebooters, or to afford any Assistance to the People when they are attacked by Thieves; but every one are obliged to get their Property and their Lives secured to themselves at their own Expence, by keeping Guard to watch during the Night, notwithstanding Government collect Assessments and several high Rates of Taxes from them for defraying the Charges of Police Establishment. The Natives dare not to come forward to make Representation to the highest Authority in England against the Government, being afraid that such Attempt might produce against them serious Effects, the Government having Power to do all they wish; wherefore these Inconveniences and Prejudices are suffered. In this deplorable Condition are the Inhabitants placed under the British Government, without having any body to take their Part; on which Subject you will have heard several Publications."
What special Juries have they now in the Courts?
Only in the King's Courts in India established at the several Presidencies.
Would you recommend the Extension of the Trial by Native Juries to Civil as well as to Criminal Cases?
In the Provincial Courts I would, certainly; for there several Cases occur, (adverted to in a former Answer,) of Caste, Inheritance and Adoption, on which the Natives are much better calculated to pronounce than Europeans.
In what Relation in point of Authority to the European Judge would you propose to place the Native Judge who you think should be nominated as Assessor to him in the Supreme Courts?
I would place him upon the Bench of the Adawlut Courts, to which my Proposition refers, in the same Way that Puisne Judges are placed on the Benches of the King's Courts. The European Judge of course should be the Chief Judge of the Court; but I would give the Native the Authority as well as the Distinction and Title of a Judge, when he sits in either of the Courts which I have recommended.
Would you propose then that the Decision should be by a Majority of the Judges?
Have you Reason to think that the Natives would be as well satisfied with the Decisions of such Judges as they are now with the Decisions of European Judges?
I should think that on the whole they would be better satisfied; and for this Reason, that Decisions might be much more expeditiously passed, and in many Cases more conformable with the Usages and the Comprehension of the Natives themselves; one of the great Inconveniences now complained of in the Administration of Justice in the Zillah Courts being the great Delay which necessarily takes place there in the Investigation of Causes.
Do you think that an equal degree of Confidence would be placed by the Natives in the Integrity of Native Judges as of European?
I think there would; for where an European Judge presided it would have the same Effect as at present, of obviating all Doubt on the Score of Integrity.
Are there any other Modes besides those you have stated, in which you think the Natives might be employed with Advantage in the general Administration of India?
They might be employed with equal Advantage both in the Revenue and in the Police Departments. At present, I would say that our Systems of Police exhibit perhaps the strongest Proofs of Failure as regards our Indian Administration; and this I think arises in a great Measure from Two Causes. The Police of India was formerly entrusted to the Collectors of Districts. Upon Lord Cornwallis's new Regulations being introduced, in 1793, the Police was transferred to the Magistrates of the different Zillahs; but after a long Course of Experience, being found to be inefficient in their Hands, the Superintendence of the Police has been again transferred to the Revenue Department, giving at the same Time to the Collectors Authority as Judges in Revenue Cases, and as Magistrates in their respective Divisions. But in all these Changes the Parties to whom the Duties of Police have been entrusted have been so overloaded with other Business, that their Police Avocations have only been with them a secondary Object. I think that both the Collectors and the Zillah Judges, as Matters now stand, have a great deal too much to do in their respective Departments ever to be able to give that Attention with is indispensably necessary to the Duties of Police, to render that Establishment effective for the Protection of the Persons and Property of the People. This I think is one Cause of Failure. Another arises in a great measure out of our Revenue Systems, which are universally so oppressive to the Natives as to occasion, on the Part of all those who are in local Authority or who have local Influence in the Country, either an Indifference to the Success of our Measures, or else a Spirit of direct Hostility. As long as this State of Things exists -as long as there is no Congeniality of Feeling on the Part of the Natives of India with the ruling Authority - it will be impossible, in my Opinion, for an efficient Police ever to be established in India. This therefore I take to be another Cause of our Failure. But if the Native Committee or Council which I have recommended in a former Answer was established in India, and if Natives were raised to the other high Situations, both in the Judicial and Revenue Departments, which I have also suggested, it would be a Means of attaching the Native Population so very much to the British Government, that then the local Influence of the Natives themselves, so indispensably necessary to the general Success of our Measures, might confidently be expected to be exerted in our Favour; and when that was the Case we should feel the Advantages of it, not only in the Police Department, but in all the other Branches of the Administration of our Government.
Do you think the Natives are now sufficiently educated to enable them to fill with Safety and Advantage the Situations which you have mentioned as being such as might be hereafter filled with Benefit by them?
The Natives of India have of late Years made such Progress in Education, particularly in the Acquirement of the English Language, as well as the Knowledge and Literature of this Country, that I think there can be no doubt of a sufficient Number of them being found, even now, to fill all the Situations which I have recommended; but if those Situations were open to the legitimate Ambition and Hopes of the Natives, it would afford them an additional Stimulus to qualify themselves for such Situations. There are now ample Means for doing it in India, in the numerous Schools and literary Institutions which have been established in various Parts of the Country, and to which I understand the Natives flock with great Avidity, for the Purpose of learning all that is therein taught; but if those public Offices before mentioned were also open to them, it would induce a far greater Number to take Advantage of those Seminaries, to qualify themselves for Employment in Situations so well calculated to raise them to high Respectability and Distinction amongst their own Associates. It is also in the Power of the Government very materially to advance this Object, by encouraging the Establishment of Seminaries for Education more generally, and by granting Prizes or honorary Distinctions in them upon public Examinations, or establishing something similar to Professorships and honorary Degrees, such as exist in the Colleges of this Country; and it may be for Government to consider whether, with such Means of securing the Attachment and Allegiance of their Native Subjects, it would not be its wisest Policy to grant this Encouragement to Native Expectations and Hopes; since, from what we have seen of late Years of India, such a Degree of literary Improvement has taken place there that it will be impossible to check its further Progress. With due Encouragement, therefore, and Reward, on the Part of the British Government, it will assuredly prove its greatest Security; but if thwarted or disappointed may be fatal to its Existence.
Do you conceive that Benefits in the Way of Moral Improvement would result to the Natives from a free Settlement of Europeans in India?
There has been a great deal said upon the Subject of free Settlement, or Colonization, as it is generally called in India. My Opinion upon that Subject is, that if the Natives of India were adequately protected in their Persons and Property, very considerable Advantage would result from the Admixture amongst them of Europeans of Respectability. I do not conceive that any Europeans, except Persons of Capital or of good Education, would ever resort to the Interior of India; for the lower Classes of People could hardly find Employment in that Climate; they could not labour in the open Fields, neither do I think they could labour with Advantage even under Cover, owing to the great Heat of the Climate, and its usual Effects on European Constitutions. There appears to me therefore very little probability that the lower Classes of Europeans would ever have sufficient Inducement to settle in the Interior. It has been thought necessary hitherto to guard the Natives of India against Violence and Oppression on the Part of Europeans, by prohibiting their going into the Interior; and perhaps, as Matters now stand, that Prohibition is necessary. This in fact is one of the Reasons which induced me to suggest in a former Answer, that the Business of Reform or Improvement in India should begin with the Judicial Department; for if efficient Laws were once put in force for the Protection of the Inhabitants, I then conceive there could be no Danger or Difficulty in allowing Europeans of Capital to settle in the Interior of the Country; and I think that by the Admixture of Persons of that Description with the Natives great Advantages would result to the latter, not only from the Expenditure of Capital among them in the Support of Industry, but also from the Example of the greater Skill of Europeans in various Arts and Branches of Manufacture. It would likewise have a Tendency to diffuse European Literature and Knowledge among the Natives of India, which would unquestionably very much conduce, in my Opinion, both to their Moral and probably to their Religious Improvement.
Were you acquainted with any Englishmen resident in the Interior?
I was; I knew several; Three or Four who resided at different Times in the Province of Malabar, and in Travancore; but One in particular, Mr. -, who resided in the Interior of Malabar for a great many Years; I believe Forty Years altogether. He latterly possessed a Landed Estate in the District of Randaterra, and resided on that Estate until the Period of his Death, about Two Years ago.
Did you observe that the Residence of that Gentleman in Malabar tended to the Moral and Religious Improvement of the People in his Vicinity?
He was but a single Individual; and much of the Effect which I should anticipate from the general Introduction of European Residents could not be expected from a single Person. This Gentleman, I know, communicated freely with the Natives; and being a very able Person himself, and talking the Language fluently, I have no doubt he communicated much of his own Knowledge to several of those who resided in his Neighbourhood, and held Intercourse with him.
Are you aware that it is on Oath before the Committee, that that very Person was accused of stealing Women and Children from Travancore, and making Slaves of them?
I never heard of it while I was in India; and from my Knowledge of that Gentleman during the Time I resided in Malabar I cannot conceive him capable of such a Transaction, or of having been in any degree accessary to it.
Were you acquainted with his History before he went to India?
Not particularly. I knew him for many Years in India, and had frequent Intercourse with him there. I had never Reason to suppose him other than a perfectly honourable, well-disposed and highly-talented Man, and always partial to the Natives of India. I would beg leave to add, in Justice to the Gentleman in Question, that if the Accusation against him on the Record of this Committee has merely reference to Agents whom he had occasionally employed in Travancore, for other, probably, Commercial Purposes, such Acts on the Part of the Agents might have occurred, and be easily accounted for, altogether independent of any Sanction, Controul or even Connivance on the Part of their Principal, since the most Criminal Acts are frequently committed by Native Agents acting in subordinate Capacities, under both Zillah Judges and Collectors, in almost every Part of India, of which such Judges and Collectors being altogether ignorant as well as innocent, it would be hard on them to be accused of Participation in the Crime. This Gentleman, during the Time I knew him, was so much respected by the Bengal Commissioners, when they were sent round to Malabar for the Settlement of the Country, as to be employed in confidential Situations by them. He was afterwards appointed to a Situation by the Government of Madras; and I believe obtained from that Government a Grant of the Estate which he held in Malabar, partly at least in consideration of the Sense which they entertained of the Services he had rendered.
Do you apprehend that any improved System of Controul on the Part of Collectors and Magistrates would have the Effect of preventing those improper and tyrannical Acts on the Part of the Agents acting under them?
I very much fear it will be impossible, without some important Change or Reform of our present Systems. The Result of our Experience, ever since we have been in possession of the Dewanny in Bengal, and in every District we have subsequently acquired, confirms me in that Opinion.
Do you not apprehend that the Agents of Europeans might, under the Idea of obtaining their Protection, be more disposed to commit tyrannical Acts than the Agents of Natives in similar Situations?
I believe that the Agents of Europeans in Authority never commit any Acts of Oppression towards the Natives in the Hope of gaining the Favour or Protection of their Superiors; on the contrary, those Acts are almost always committed unknown to the European Authorities, or to the European Persons by whom such Agents are employed. There is always, from the little Intercourse that subsists between us and the Natives of India, the greatest Difficulty in detecting such Acts of Oppression, and bringing the Perpetrators to Justice; and this is the Cause why they are so often committed with Impunity.
Do you think it would be expedient to promote a more general Residence of Europeans in the Interior of India, without making them amenable to the same Courts before which the Natives must prosecute their Civil Suits, and appear in the event of their being accused of Criminal Acts?
That is exactly what I should propose. It is with that view that I recommended Improvement in the first instance in the Judicial Department; for if the Natives could be adequately protected, I think every Difficulty would be removed in the Way of admitting respectable Europeans into the Interior of India; but those Europeans I would unquestionably subject to the same Laws and to the same Courts of Justice as the Natives themselves; and upon that Condition alone do I think they ought to be suffered to reside in the Interior. Perhaps it may be right to make some Exception as to Capital Offences.
In what Manner would you so alter the Law as to make it equally consistent with the Prejudices of the Natives, and with that of the European Resident?
I have already stated that I think it would be impossible, or almost impossible, for any European to suggest the Laws that ought to be enacted for this Purpose; we have hitherto tried it for upwards of Half a Century, and tried it in vain; and it is upon these Grounds that I have taken the Liberty of so strongly recommending to the Consideration of the Committee the Appointment of a Native Council at each of the Presidencies, for the Purpose of assisting in revising the Laws now in force, and enacting fresh ones, such as may be more consonant with Native Usages and Habits, and more efficient to guard the Rights and the Interests of the Native Community.
Would you subject the Rights and Interests of European Residents to a System of Law formed by a Native Council?
Certainly I would, if they chose to go and reside amongst the Natives. Every one who resides in a Foreign Country necessarily subjects himself to the Laws of that Country; and I see no Reason why Europeans in India should not be subject to the Laws of India, if those Laws were passed with due Consideration to the Rights and Interests of those intended to be governed by them, and finally scrutinized and confirmed by the Legislature of this Country.
You think it just that an European who has elected to live in India rather than under the Law of England should be subject to the Law which was most consistent with the Habits and Prejudices of the great Body of the People among whom he lived?
It will be optional with the European to reside in that Country, and carry his Capital there, or not. If he chooses to reside there, I think he should be subject to the Laws enacted for the Benefit of the People at large.
You conceive then that every adequate Security which a Native of England would require would be insured to him by such Laws being sanctioned by the British Legislature?
By the Governments of India in the first instance, and by the British Legislature ultimately.
Were the other Europeans whom you knew resident in the Interior Persons who carried Capital to India?
Two of them that I recollect were Persons living in the Kingdom of Travancore. One of them was a very industrious Man, who gained his Livelihood by building Ships and Boats; the other was a Person of no Capital, for he had failed in Business at Bombay, and retired into Travancore, where he passed, I believe, the Remainder of his Days, carrying on the Business of a Merchant in a small Way.
As he had no Capital, in what Way was he enabled to carry on Business in Travancore?
Merely his own Industry, and probably by means of small Advances acquired from his Friends in Bombay. He was respectably connected in Bombay, and in all probability supported in Business by them.
You have spoken of the Difficulties you found in administering Justice, in consequence of the Questions being put to the Witnesses through the Medium of an Interpreter; were you acquainted with the Language of those Witnesses yourself?
I was not; and thence arose a great Part of the Difficulty. I could not in Conscience pass Sentence upon Prisoners where I felt Uncertainty as to the Nature and the Accuracy of the Evidence which had been adduced on the Trial.
Would that Difficulty in which you stood have been in any Degree diminished if you had been sitting between Two Native Judges?
It would be very much diminished; more especially if those Natives were acquainted with the English Language as well as with the Language and Habits of the Parties under Examination and Trial.
Would it not be easier to find one Englishman acquainted with the Language of the Country, than Two Native Judges acquainted with the English Language?
The English Language is becoming so general among the Natives of India, that I conceive there would be no Difficulty in finding Individuals perfectly well qualified from their Knowledge of the Language to sit as Judges. The Languages of India are on the other Hand so numerous, that though a European may be well acquainted with One or Two of them, yet in a great Extent of Country over which his Jurisdiction extends it will often happen that other Languages or other Dialects exist in which he is not conversant.
Have you ever considered in what Manner the Judicial Establishments of the British Government in India might be improved, with relation to the Qualifications of European Judges themselves, in the Acquisition of Languages, and in the Knowledge of the Law?
The European Judges in India are for the most part selected from amongst the ablest and most distinguished of the Company's Servants. Their Education is not that of an English Lawyer in this Country, but I believe they are for the most part well acquainted with the common Principles of Law, and with the most common Language of India, videlicet, Hindostanee, and sometimes with the Persian; but the Persian Language is of little Use in the Administration of Justice in our Courts. If a Code of Laws such as I have recommended were compiled in India, the Gentlemen who were appointed to the Situation of Judges in the Provincial Courts could have no Difficulty in making themselves Masters of that Code; and it might be made a sine qua non of their Appointment to Office, to prove upon public Examination that they were qualified to fill the Situation.
Have they at present any Means of acquiring that Knowledge of the Law, or any Time to devote themselves to the Acquisition of it, before they are placed in Judicial Situations?
In the Way in which the Courts are now constituted in India, and Proceedings conducted, Judges, whether before or after their Appointment to the higher Situations, have generally no Time upon their Hands for Study, and therefore cannot be expected to be possessed of any Legal Knowledge which had not been previously acquired. This I take to be one also of the great Defects of our present System. I think it would be very desirable, and is one Reason why I recommended the Appointment of Native Judges to our Provincial Courts, that it would shortly, if not immediately, prove the Means of relieving European Judges and Registers from a great deal of the detail Business with which they are now overloaded. It might materially conduce to a faithful Execution of official Duty by the Natives employed in their respective Districts, if the Judges and Registers alternately had sufficient Time or Leisure upon their Hands to make constant Circuits through their respective Districts, for the Purpose of superintending and controuling the Acts of the Native Officers in Authority. If a Judge, for example, was relieved of the Duties of Detail in which he is now engaged, he might either himself, or by deputing the Register of his Court, make frequent Excursions to the Districts or Subdivisions in which Native Judges preside; and by keeping a constant Watch and Vigilance over the Conduct of those Native Judges, as well as of the Persons employed in the Revenue Department, it is more than probable that it would operate as a very effectual Check upon their Conduct, by restraining the evil Propensities of the bad, and encouraging the well-disposed to a faithful Execution of their public Duties.
If the European Judge has no Time to acquire a Knowledge of Law after his Appointment into a Judicial Situation, is he not equally without Time to acquire a Knowledge of the Law, and likewise without any Inducement to acquire it, before his Appointment to those Situations, being fully occupied in whatever Situation he has been originally placed in, and not knowing he ever shall be a Judge?
If it were made the Condition of his Appointment to a higher Situation, he would of course devote himself to the Acquirement of that necessary Knowledge.
Do you think it advisable that the Two Lines, the Revenue and Judicial Lines of Service, should be kept distinct throughout?
I think decidedly so, on Principle.
Would you keep them distinct from the first, so that an Individual who entered into one Line should not afterwards pass into the other?
It has been the Custom to promote Gentlemen from the Revenue to the Judicial Line, and I think some Advantage results from follwing up that System, for it gives a Gentleman who has been in the Revenue Line an Opportunity of acquiring a great deal of Knowledge with regard to Cases which will certainly come before him in his Judicial Capacity. If thoroughly qualified on Examination to fill a Judicial Office, I should think it of little Consequence in which Line he had previously served.
Do you think it would be advisable, when a Gentleman has once entered the Judicial Line of the Service, that he should remain there?
I do not think it at all necessary for a young Man appointed Assistant to a Judge in one of the Zillah Courts to be exclusively confined to that Line in all Time to come, nor do I see any Reason why he should not be transferred to the Revenue Line, and so changed from one to the other; provided always he shall prove himself to be qualified for the Offices he may be appointed to fill.
Would not that Interruption of his Judicial Practice and Studies make him less fit to exercise the higher Functions than he would if he devoted himself entirely to one Line?
I doubt very much whether it would; much however in this respect would depend on the Disposition and Attainments of the Party. If he knew that the higher Judicial Offices were open to him, he might, if relieved from the numerous Details to which he is now exposed, equally qualify himself to fill them as if he had remained in the Judicial Line altogether.
You have represented the Mischief which had arisen out of the present System of Land Revenue in India; can you suggest to the Committee any Improvement in that System?
There is One Question, as regards the Revenue System of India, which is certainly of paramount Consideration, and that is the indispensable Necessity of a certain Quantum of Revenue to pay the present heavy Expences of the Company's Government. It would therefore be quite impossible to reduce the aggregate Amount of Land Taxation in India abruptly. It must be done gradually, as other Sources of Supply present themselves; and I know no Means by which that Object is so likely to be accomplished as through the Medium of the Native Committee which I have recommended to be established at the different Presidencies. Such a Native Council or Committee, with efficient Officers, European and Native, in the Provinces, might I think materially aid us in doing that which we have hitherto always failed to accomplish, and that is, equalizing the present Revenue Assessment of the Country, thereby rendering it more tolerable to the Inhabitants. With the Aid of such a Committee, and the Employment of Natives in the other Ways and under the Checks which I have recommended, we might be enabled to convince the Inhabitants of what I am sure they cannot be convinced now, that the Assessment thus settled would never be increased, but on the contrary gradually diminished. Under the Influence of such Arrangements, and the Confidence of the Inhabitants well secured, it may not be too much to expect, as a natural Consequence, that Accumulations of Capital and Property will take place in various Parts of the Country; and in such Case there can be no doubt that other Sources of Taxation would present themselves, so as to enable Government gradually to reduce the Rate and Amount of the present Land Tax, than which nothing, as it now stands, can more effectually bar the Progress of Improvement. In these respects, a Native Committee may be of essential Service; whilst the Reform of the Revenue Systems of India is, as I think, a Point of the greatest Importance to be taken into immediate Consideration.
Does not this Expectation of yours proceed on the Supposition, that, in the first instance, by assessing with greater Equality the Land 'Revenue, the same Amount of Revenue might still be received?
It does; but the Revenue as now collected is I believe very unequally assessed. I am confident that in many Districts of India there are Lands now altogether exempted from Revenue, which would under a better System be liable to a regular Assessment; on the other Hand, there are many Lands over-taxed, from which the Revenue is oppressively levied, and some not taxed at all. If even a tolerable Equalization of this Land Tax could be effected with the Aid of Native Co-operation, it would be a Blessing to the Inhabitants, and relieve them from a Load of Oppression to which they are now subject.
In what Way would you proceed to make that equal Assessment of Revenue?
I think the Means of proceeding should be left entirely to the Native Committee and the Local Authorities. Unless they can suggest Means by which this Object can be accomplished, I should despair of Success. I doubt whether it can ever be accomplished through European Agency alone.
Would you found this new Assessment upon a Survey?
I have before explained, that I have not the smallest Confidence in Surveys.
You have expressed an Opinion that the Surveys which have been hitherto made have failed, but you give your Opinion of their Failure on a Comparison between the Result of those Surveys and the Result of a Survey made by your own Agents; in what Manner did they proceed to take your Survey on which you did rely?
My Assistants proceeded merely to inspect certain Spots of a District pointed out to them; and they found, upon personal Inspection of those Spots, the Inconsistencies which I have detailed in a former Answer; but I believe it to be quite impossible for Government Surveyors to assess a large Extent of Country equably; and if the almost infinite Varieties which arise from Difference of Seasons and of Soil, as well from Locality as Fertility, together with the greater or lesser Skill, Industry or Capital employed in its Cultivation, Change of Products from Year to Year, Proximity or Distance of Markets, and other Causes, are considered, the Impossibility of attaining the desired Object by means of Government Surveyors and Assessors - that is, of ascertaining the Gross Produce of any Country, with a view to equal Taxation - must, I think, be obvious. It is on these Grounds, therefore, that I am of Opinion that Surveys will never be of Use to us.
In what Manner would you assess the Revenue without the Assistance of a Survey?
We must necessarily proceed, for the present, on the Systems which are in force in the different Districts of India, subject to such Modifications and Amendments as may be afforded through the Means I have before recommended.
Are you aware that in many Cases that which was called a Survey proceeded upon Principles different from those that would have regulated what is called a Survey in this Country; and that the Survey was made on a Comparison of the Amount of Tax actually paid by the Country surveyed in the Course of the last Ten or Twelve Years?
The most laborious, and perhaps the most accurate Survey, that has been accomplished in India, was effected under the Superintendence and Direction of the late Sir Thomas Munro, in the Ceded Districts, who was certainly one of the ablest and the most zealous of the Company's Servants in India; but from his own Reports it is manifest that the Result of that Survey was a complete Failure. The Assessment laid upon the Lands in pursuance of that Survey has, as far as the public Records go, never been realized. It has been found, on the contrary, necessary in each succeeding Year, or at certain Periods, to reduce the Amount of Sir Thomas Munro's Assessment; so that the Revenue realized from those Districts is, I believe, considerably less than that which he reported to be the Capability of the Country, and that would in fact be realized from it in all Times to come.
You are aware that the Assessment of Sir Thomas Munro fixed the largest Amount of Revenue which in his Opinion it would, under any Circumstances, be just to draw from the Country; but that he himself recommended, in the first instance, a very large Reduction, to the Amount of Twenty-five to Thirty-three per Cent, and that his Suggestion to that Effect was not adopted?
Sir Thomas Munro's Proposition for a Reduction of the Assessment had reference only to the Experiment of a permanent Ryotwarry System. It was this permanent Ryotwarry Settlement which the Revenue Board rejected; consequently the former Assessment, or that of the Ryotwarry Survey, was continued. On his quitting the Ceded Districts, he reported to Government, that Eighteen Lacs of Pagodas might be collected from that District in all Time to come, without the Aid of a single Sepoy to enforce the Collections. I believe however that Eighteen Lacs of Pagodas never have been realized; and that the Revenue now derivable from that District is very considerably below the Estimate given in by Sir Thomas Munro.
You are aware however that the Assessment fixed in the first instance on the District surveyed by Sir Thomas Munro was much higher than he thought the Government could in Prudence or in Justice exact?
After a laborious Investigation for Three or Four Years of the Resources of the District, Sir Thomas Munro fixed the Assessment, not on the Grounds of the Survey, but on an Estimate of the Resources of the Country, after consulting with the principal Native Inhabitants, compared with the Realizations of Revenue from the District for a certain Number of Years previously. I should conclude, from the repeated Perusal of Sir Thomas Munro's Reports, that he must himself have placed but little Reliance on the Result of his own Survey, since both he and his Successors would seem to have proceeded on other Grounds, as well in regard to the Assessment of the Country as to the Collection of the Amount.
Supposing it were determined immediately to make a large Reduction of the Land Revenue, can you suggest any Mode of supplying the Deficiency in the Receipts which would be so created by the Imposition of any other Taxes?
Certainly not immediately; and therefore it is I say that it should be done with great Caution, and gradually; neither would I think it safe or wise to attempt further Modifications or Ameliorations of the System, where so many able Heads have already decidedly failed, until the best informed and most experienced of the Natives of the Country shall have been consulted upon the Subject.
You do not therefore suggest yourself any Improvement of the present System, but you think that such Suggestions might be obtained from a Native Council?
I really feel too diffident to offer any other Suggestions as to Improvement of the System than those which I have taken the Liberty of submitting in the Course of this Examination. I think it is out of the Power of Europeans to do it as it ought to be done; they have decidedly failed. The Schemes and Attempts of the ablest and most zealous of the Public Servants in India have been tried in vain; and it is upon this Account that I so earnestly recommend the next Attempt being made with the Aid of Native Co-operation and Experience.
Had you any Opportunity of observing the State of Property in India under the Controul of the Proprietary Zemindars, and comparing it with those under the Management of the Company?
In the Province of Malabar we found a Class of Hindoo Landed Proprietors that had been established in the Country from Time immemorial, the Country never having been overrun by the Mussulman Power until the Invasion of Hyder Ally in 1763. We had here therefore a regular and even titled Aristocracy of ancient Descent; and though these Proprietors had materially suffered, and were almost entirely driven out of the Country, by the forcible Introduction of the Mussulman System of Finance, yet upon our acquiring the Province great Numbers of them returned to resume Possession of their Landed Estates. These Estates were generally let to Farmers, and for the most part mortgaged to them. The latter having thus an Interest in the Lands, they were accordingly cultivated with great Care, and the Produce thereof proportionally abundant; but the Proprietors themselves were generally poor, from having mortgaged their Estates, in almost all Instances to a considerable Amount, and in many to nearly the full Extent of the Net Rent. It often happened indeed, that the Farmers, being also Mortgagees in Possession, were better off than the actual Proprietors; their Condition therefore was greatly superior to that of the Ryots or Farmers of Lands immediately under the Management of the Company and their Officers, who invariably exact from Lands so circumstanced One Half of the Gross Produce of the Soil, or endeavour to exact it, and the Consequence to the Inhabitant Cultivators is, as before explained, universal and wretched Poverty. The Cultivators of Estates in Malabar, being thus more comfortably off, were also much attached to their superior Lord, who exercised great Influence over them. It must however be remarked, that these Proprietors were a different Class of Persons to the Zemindars in Bengal, who had been placed in Possession of Estates, with Proprietary Rights, under the System adopted by Lord Cornwallis. The Connection between the Zemindar and Ryot of Bengal was widely different from that of the Proprietor and Farmer of Malabar. The excessive Amount of the Public Revenue only leaving to the Bengal Zemindar One Eleventh of the Net Rent of his Estate, his Necessities obliged him to trench on the equally insufficient Portion of the Ryots, and both were accordingly reduced to great Misery.
Upon the whole, you consider the Farmers and Cultivators of the independent Estates to which you have alluded as liable to less Oppression than those under the Ryotwar and other Settlements?
Far less; and this I think would be universally the Case, if the Land Revenue would admit of adequate Reduction.
The Witness is directed to withdraw.
Ordered, That this Committee be adjourned to Tuesday next, One o'Clock.