Affairs of the East India Company: Appendix 4 to the evidence of Sir Edward Hyde East Bart M.P.

Appendix 4 to the evidence of Sir Edward Hyde East Bart M.P.

[129]

No. 4.

Second Part of the Reform of the Mofussil Courts, &c.

THE present Mode of administering Justice in the Mofussil Courts seems objectionable on Two Accounts.

Language.

First, the Language of the Court is Persian, which is Foreign at this Day to every Description of Subjects in the Empire, and is both impolitic in regard to the State, and inconvenient to the People. It was natural for the first Mussulman Conquerors, whose Language was Persian, to administer the Laws in their own Tongue to the conquered People; but by the same Policy, if their Conqueror and Successor, the British Government, do not adopt the Native Tongue, it should give the Law in English. The Koran having been written in Arabic, the Mussulman Expositors of the Law would necessarily have preferred giving their Opinions in that Language, but they were constrained by our Government to give them in Persian, so that the Persian was not agreeable to any Party. Upon the whole, the Adoption of the English Language appears to be most expedient and politic; for the Language of its Native Subjects is various in different Parts of India, and the Limit of each is not very strictly defined. All would as easily, or nearly so, addict themselves to learn English, and have stronger Motives to do so, than each others Dialects and Languages. The Revenue Accounts, formerly kept in Persian, have I understand been directed to be kept, and are now kept, in English, for the sake of Perspicuity.

The Hindee, (or, as it is more commonly called, the Hindustannee,) of which however there are, as I am informed, very varying Dialects, is in more general Use than any other in the Upper Provinces, and amongst the Mussulman Population of Bengal; but the Hindoos of Bengal, as well as the great Population of Southern Hindustan, know little or nothing of it. The common Language of the former is Bengallee. Besides, the more it is desirable to impress the Stamp of the British Character and Empire upon the People, the more ought the Study of the English Language to be promoted: it will be the speediest and most effectual Channel of conveying internal Improvements. By making it the Language in which the Law speaks every Day to the People, in all Parts of the Empire, Numbers of the most active and intelligent of them must become familiar with it, as they are now compelled to be with Persian. It is more likely to promote Justice than the Use of the Persian; for the Judges at least will have a sure Knowledge of their own Proceedings. The Facts will come to them directly from the Suitors, through only One Translation, for which Numbers are already very sufficiently prepared; whereas, by the present Mode, the Suitor must first convey his Claim or Defence through the Medium of a Persian Translation, and then must take the Risk of his Judges having so intimate a Knowledge of that Tongue as not to be likely to mistake either the Documents or the oral Pleadings. The Use of Two Tongues only, the one of the Suitors and Witnesses, the other of the Judges and Officers of the Court, must, in the Administration of Justice, be safer, if not more expeditious, than each communicating with the other through the Medium of a Third Langauge, foreign to both, but most of all to the unlearned Suitors.

It will operate as a salutary Check upon the Judge himself, to deliver his Judgment, and assign his Reasons, as every Judge should be bound to do in open Court, in his own Tongue, without any Cover. This Alteration will of itself be a great Acquisition; but its Benefit will be inestimably enhanced by its Connection with another Reform: that is —

English Pleaders.

The Introduction of English Pleaders into the Mofussil Courts, I will not say in the Place of, (the Country may be safely left to judge between them,) but in addition to the Native Pleaders. That the Native Pleaders, with perhaps some rare Exceptions (fn. 1), do not afford any effectual Assistance to the Courts, Experience has too plainly shewn; that they frequently embarrass their Proceedings, I have been informed from the best Authority. How can it be otherwise, when it is considered how deficiently they are educated in all the Principles of real Knowledge and Judicial Learning? The very Regulations (fn. 2), which the Government, at the Suggestion of the Courts, has been obliged to make, to guard against their Ignorance and Corruption, sufficiently declare their general Incapacity, Proneness to Extortion, and degraded Condition. Contrast this with the enlightened Education, the profound and various Learning, both professional and general, the elevated Talents and free Services of the British Bars. Consider the Influence which a Set of Gentlemen, so educated, and disciplined to Honour and Justice, must have, when dispersed throughout the Country, engaging the Confidence of the wealthy, vindicating the injured, and sharing the Feelings, and aiding by their Counsel and Eloquence in the lawful Protection of all. Appreciate the Accession of Moral Strength to the Government from such an Acquisition of British Character, Talents and Influence; and all this attainable with little, if any, additional Expence to it.

[130] Modes of introducing English Pleaders.

There are two Modes by which this Measure may be executed; one which I should prefer, because it would tend more speedily to correct the excessive Evil of the present System, is immediately to open the Bar of the Mofussil Courts to such English Barristers as the Company might think proper to appoint. The Company's Government might, if it were thought advisable, allot a certain Number of Barristers to their several Courts throughout the Country, according to the Exigency of the Case; and in favour of their present Servants in the Judicial Line, the local Government might be restrained from the Appointment of any of those Barristers to Judicial Situations in the principal Courts for a certain Number of Years, after which they should be eligible; yet I think that the immediate Introduction of a few experienced and approved Barristers into the Judicial Seats of the Zillah Courts, where there is the greatest Press of Business, would be of Public Advantage. (fn. 3)

Appointment of Mofussil Barristers, Solicitors and Attornies.

The other Mode is slower, but will come to the same Result: it is to make a Selection, on their Arrival in India, of those young Gentlemen sent out as Writers, who are intended to enter into the Legal Department; and to require them for a certain Period (say Three Years) to attend as Students the Sittings of the Sudder Dewanny and Nizamat Adawlat at Calcutta, Madras, or Bombay, or other of the Mofussil Courts in the Neighbourhood, as well as of the respective Supreme Courts (fn. 4), while they are also acquiring the Native Languages in College; and at the End of that Period to call some of them to the Bar, and admit others as Solicitors and Attornies of the Mofussil Courts; from the former of whom all Vacancies in Judicial Seats throughout the Provinces should in due Time be filled, as Opportunity offered, and according to the Judgment of the Government, as it is now exercised, with the additional Information afforded by this kind of Public Probation.

The most distinguished Barristers and Solicitors would, in the natural Course of Things, acquire the Confidence of the Natives throughout the Company's Dominions; and thus, in no long Time, bring a powerful Acquisition of Strength from Public Opinion to the Government.

This Change of System would require an additional Number of Writers, and perhaps of Persons advanced to the Years of Manhood, and in part qualified for their Destination; but the great Proportion of them would soon maintain themselves, and improve their Fortunes, by their own Talents and Character; and a Regulation might be made accordingly, upon a graduated Scale of Salary, to be reduced from Year to Year. Its Operation, to postpone their Advancement to Judicial Seats for Three or Five Years longer than now takes place, will greatly benefit both themselves and the Public.

Native Practisers.

The only remaining Difficulty would be in respect of the present Native Practisers: these might still be retained 'till they dropped off. For some short Time their Utility in Causes would be obvious, in the best of them, on account of their intimate Knowledge of the Language and Habits of the Suitors, and of the peculiar Customs and Laws of the Provinces; others of them might be appointed to inferior Situations about the Courts; and moderate Pensions, under special Circumstances, would compensate all other reasonable Claims, if any, upon the Government. Occasion of Jealousy in future, if such should be found to arise, would be done away by admitting Native Candidates also to the Bar, and to act as Solicitors, who chose to educate themselves for such Functions, as before, with the Acquirement of English, in addition to or in place of Persian.

No Salaries to Barristers and Solicitors, as such.

The Company would not of course allow any Salaries to their Writers who became practising Barristers or Solicitors, as such, at least not after the first or second Year of their Practice, which would have a good Effect in Two Ways; the one, in relieving the Company from the Salaries of those Writers who entered the Judicial Line; the other, in emulating the Candidates for present Emolument and future Preferment, to honourable and useful Exertions for acquiring the proper Knowledge and displaying the Talents of their Vocation. And thus the Government itself will obtain unbought Experience of those who are fit for the several Judicial Employments when they become vacant; for the Choice of whom at present it is obliged to grope in the Dark, or is fettered by some blind Rule of Rotation or Seniority, quite inapplicable, and dreadfully hazardous to the Exercise of Judicial Functions.

Future Benefits from Change of System.

[131]

I look to a future and more extended Benefit to arise in both these respects from the Change of System. One principal Cause of the Expence, Uncertainty and Delay of the present Course arises from the too early Employment in Judicial Offices of very young and inexperienced Men, who, having never studied Law upon any System, must necessarily be unacquainted for the most part with its Principles and Practice, and, as Matters are now contrived, have very little Opportunity of profiting by the Example of others, who have not long preceded them in the same helpless Condition. There is little or no Continuity of Knowledge and Experience in the present System. The young Judge must set off with a small Stock in Hand; and he leaves no Ear-witnessing Successor to the hard-earned Experience which he afterwards acquires. This begets the Necessity, and has enforced the providing, of Checks upon Checks, not only to correct the final Errors, but even to guide the interlocutory Proceedings, of such Magistrates. Hence the cumbrous Machinery, Box within Box, Appeal upon Appeal, which overloads the Judicial Proceedings of the Mofussil Courts, and leads to insufferable Vexation and Delay, with proportionable Expence. There is seldom any tolerable Certainty even when a Cause is to be heard; and the Parties are accustomed to retain Agents at Monthly Salaries to give Information of it. 0,00,03,04 5620 5618 7 11

Barrister-Judges and Magistrates; and Attornies.

But when Barristers of a certain Standing and Experience shall be appointed in the first Instance to act as Judges and Magistrates of Zillah Courts, or within certain Districts, having the Cognizance of all but Capital and State Offences, (which should be reserved for the Judges of the Superior Courts sitting in Bank or on Circuit,) and also of Civil Causes to a moderate Amount, without Appeal, (except as after mentioned,) more especially when Two, Four or more Attornies (according to the Magnitude and Population of the principal Towns and neighbouring Districts) shall be appointed to act before those Barrister-Judges and Magistrates, to whom the Clients may have recourse, if they please, for Advice and Assistance, there will be no Necessity for the perpetual Checks and Superintendence which are now exercised; the superior Courts and Judges will be relieved from much of the Burthen which at present overwhelms them, and the Expence of the whole Establishment will probably be reduced.

Barrister-Judges and Magistrates.

It should be made a Condition of being called to the Bar of the superior Mofussil Courts, that the Barrister should be liable to be appointed to act as a Judge and Magistrate for a certain Period of each Year in a Zillah Court or District within the Range of his Attendance on the particular Court or Courts where he is permitted to practise; and as there would be no Civil Appeal from his Judgments in Matters of Fact, there would be no clashing of Interests. If it should be found necessary that the superior Courts should continue sitting as they now do, with very short Vacations, this Duty must be borne in rotation. Reasonable Vacations tend rather to promote than to impede the just Dispatch of Business, by giving fresh Zest to those employed, and due Time for Preparation.

Consulting the Genius of this People, raising a due Respect and Feeling for the Occasion in all present, I should recommend that every Barrister-Judge and Magistrate, when acting in his own Court, as well as in the superior Court, should wear a plain Black Robe, and that the superior Judges should have their proper Robes of Office. That each of these, on his Entrance into Office, should be sworn to his Allegiance and Duty in open Court.

The Barrister-Judge and Magistrate should be permitted to receive certain reasonable Fees of Court (of which public Notice should be hung up in a conspicuous Place in his Court) for all Business done by him as a Judge and Magistrate, leaving his Bar Fees as Counsel in the superior Court to be purely honorary. This, with his Practice as a Barrister in the superior Court or Courts of his District, would probably compensate his Services as Judge and Magistrate; or if that were doubtful at first, a moderate additional and temporary Salary from the Public during his Magisterial Sessions, to make up the Deficiency, if any, according to the present Establishment, would suffice, with the Expectation of future Preferment.

Attornies.

The Attornies permitted to practise in the same District Court would naturally obtain and would principally look for their Emolument to the Legal Business of the District, in proportion to their Character and Talents. They would always remain responsible for their good Conduct, under the Superintendence and Controul of the superior Court. In addition, they would attend on the Barrister's Court, and might each in his Turn, Month by Month, register and attest its Proceedings; and each should be entitled to moderate Fees for his Trouble, besides a small Salary from the Public Purse during such registering, by way of Retainer. Each of these Officers would be a Check upon the Conduct of the other, to prevent Abuse. They may be eligible to the higher Judicial Situations, as a Reward of superior Talent and Merit.

The Assistance of these Attornies in preparing the Cases which come for Trial before the Circuit Courts or superior Tribunals would be invaluable to those Courts, by methodizing and expediting the Pleadings and Evidence, and bringing them to so many distinct Issues, elucidated as they would be by the final Assistance of the attendant Barristers, which would save an Infinity of Time and Labour, now lost to the superior Judges, in developing undigested Masses of Paper with which they are now overwhelmed, or in the mere Drudgery of inferior Clerks. This would prevent that Accumulation of Arrears which no Human Exertions of Industry and Talent can now keep down.

Pundit, Moolvy, Interpreter, Peons, &c. [132]

Besides an Interpreter, Pundit, Moolvy and an Establishment of Peons to attend and execute the Orders of the Barrister-Judge and Magistrate in Court, the Headman of every Village in the District (and more in the greater Villages and Towns) should be sworn in as Officers to assist Process and preserve the Peace, with a certain Badge of Office, conferring Honor in the Eyes of the People. If it be thought necessary or expedient that the Barrister-Judge and Magistrate should be duly qualified in the Languages of the Country to act without an Interpreter, the latter would be saved; but this Saving will delay the Period of Relief in this Mode, and may even prevent, at Times, the Acquisition of Barristers of a higher degree of Talent and Experience, a few of whom would be invaluable, as Models for the rest. At least the Office might be temporary.