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THE

ASIATIC JOURNAL.

JANUARY-APRIL,
1837.

RESCISSION OF APPEALS FROM THE MOFUSSIL COURTS TO THE SUPREME COURTS OF INDIA.

THE clamour which has been raised at Calcutta against the Act of the Legislative Council of India, passed on the 9th May last,* whereby the 107th clause of the Act of Parliament, 53 Geo. III. c. 155, is repealed in the Company's territories, and all persons in those territories are made amenable, in civil proceedings, to the jurisdiction of the Company's Courts, renders it a subject not unworthy of consideration, with a view of placing the question in a clear light, and of examining the grounds and motives of the clamour.

By the section of the Charter Act of 1813 referred to, British subjects of his Majesty in India, residing, or carrying on trade, or occupying immovable property, beyond ten miles from a presidency, were made subject to the local courts, in civil proceedings, equally with natives and others; but it was provided that, where it would be competent to a party to appeal to the Sudder Dewanny Adawlut, or other highest provincial court of appeal, British subjects of his Majesty might, in suits commenced against them, appeal to the Supreme Court at the presidency, which court was invested with the same powers as the Provincial Court of Appeal, conforming, as near as possible, to the course of procedure in the latter.

So long as the interior of India was not open to the general resort of Europeans, this distinction in their favour was a sacrifice to their prejudices which produced but few inconveniences, because it but rarely happened that Europeans and natives impleaded one another. Since, however, the admission of European settlers, and the extension of indigo and other cultivation in the interior, the qualified right to hold lands by Europeans, the consequent increase of subjects of litigation between them and natives, and especially since the introduction of cheap forums for the protection of the natives, this right, on the part of an European, when impleaded by a native, to appeal from a Mofussil Court to the Supreme Court at the presidency, must produce serious and obvious evils, which cannot fail to counteract the ends of justice.

It is well known to those who paid any attention to the inquiries which preceded the last Charter Act of 1833, that those which related to the

*See last vol. Asiat. Intell. p. 144.

Asiat.Jour. N.S.VOL.22. No.85.

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judicial branch of that great question were, perhaps, the most anxious. It was admitted by all whose opinions were sought, the judges of the Supreme Court of Calcutta inclusive, that a very material modification of the existing system was indispensable, under the new order of things consequent upon the changes meditated in our Indian policy. It may be worth while to exhibit, as bearing upon the subject, the views taken by those learned personages, the King's judges, in this matter.

Sir Charles Grey, the chief justice, in his Minute of 2d October 1829,* states that he saw no objection, if the Company ceased to be a commercial body (till which, King's Courts could not be dispensed with, inasmuch as the Company, as traders, were liable to be sued, and ought not to be sued in their own courts), against leaving to it all the ordinary administration of justice, and could approve of every court in India, of primary and original jurisdiction, being a Company's court; but he was of opinion that, to secure the right of making laws from being defeated by the mode of putting them in action, there should be a general court of appeal in India, of which all the judges should be appointed by the Crown, but the majority selected from the Company's servants; that its jurisdiction should be chiefly upon appeal from the superior Provincial Courts, and that all the Provincial Courts and Courts of Circuit should have the power of administering law to British as well as to Indian persons.

Sir Edward Ryan,† the present chief justice, in his Minute of the same date, concurred with the government (Lord William Bentinck and his council), that "serious inconveniences must be experienced unless the persons allowed to settle in the interior are made subject, with the rest of the inhabitants, to the authority of the local courts." He observes: "to leave the European owner or occupier of lands, or the manufacturer, at great distances from Calcutta, amenable only to the jurisdiction of the Supreme Court, or subject only to the Mofussil Courts, with the limited powers which they at present possess, would tend to such a system of fraud and injustice, and leave the natives so entirely at the mercy of the settlers, that I think it would be an insuperable obstacle to the allowing of Europeans to settle in the interior." On the question respecting a court of supreme jurisdiction,-whether the Supreme Court should be rendered a component part of the judicial establishment, the whole being remodelled into one uniform whole, as suggested by Lord Wm. Bentinck; or the Sudder Dewanny and Nizamut Adawlut be abolished, and the Supreme Court at each presidency be the highest civil and criminal tribunal, as recommended by Sir Charles Metcalfe,-Sir Edward refrains from offering any suggestion, though he expresses his general assent to the views of Sir C. Metcalfe. But he reiterates his opinion, that, "on every consideration, it would seem desirable to place all classes of his Majesty's subjects in his Indian territories, as far as possible, under the same laws, amenable to the same tribunals, and to the same forms of trial."

In an outline of a system of courts for India, drawn up by both these

* Appendix V. to Rep. on Affairs of E.I.Co., p. 76, et seq.

↑ Ibid., p. 94, et seq.

learned personages, they suggest the following system of appeals: there should be only one appeal for an error in fact, namely, in a suit originally in a Pergunnah Court, to the Zillah, whose decree should be final; in a suit originally in the Zillah Court, to the Provincial, whose decree should be final; in a suit originally in the Provincial Court, to a Presidency Court of Appeal (to be a court specially constructed for the purpose); and in the few original suits in the Presidency Court, to the King in Council; for error in law, or imputed corruption, the appeal to be carried up as far as the Provincial Court.*

From this abstract of the opinions and suggestions of the judges of the Supreme Court themselves, it will be seen that they recognize the expediency, nay, necessity, of subjecting Europeans, as well as natives, in the interior, to the local courts of the Company; that they do not propose to make the Supreme Court a court of appeal from the Mofussil Courts, and that (doubtless from a sense of the evils we have adverted to, as inevitably springing from a right of appeal, especially by Europeans alone, from the subordinate local to the Supreme King's Courts) they give no right of appeal from the Pergunnah and Zillah Courts to the Presidency Court of Appeal (which is but one degree short of the Act complained of), the majority of which Court, moreover, Sir Charles Grey thinks, should consist of Company's servants.

But these eminent individuals have not only tacitly excluded the Supreme Court, but have magnanimously pointed out its defects. They show† the unfitness, both of its constitution and of the law it administers, for the competent exercise of a jurisdiction beyond the seat of the presidency. Besides the imperfections and inconveniences of the Supreme Court, inherent in its original constitution, the application of the forms of British law to matters connected with Hindu laws and customs is, they observe, full of difficulty. Though they confine this observation to disputes between natives, and to the inability of a King's court to administer Hindu law, it is obvious that disputes must arise between Europeans and natives, which would fall within the same considerations.

It may be necessary here to remark, first, that if the law administered in the Mofussil Courts be not what is understood by the term "English law," it is not Mohammedan or Hindu law; it is of a mixed nature, adapted to the exigencies of the parties subject to it. The code, the rules of evidence, and the punishments, in criminal cases, retain but little of the native complexion. Secondly, if the Company's judges are deficient in the knowledge of English law, which they do not want, English lawyers would be ignorant of Mofussil law, which is a positive disqualification in a Mofussil judge. Sir C. Metcalfe observes: "It is surprising that a knowledge of any language spoken by the natives has never been considered a necessary qualification for a judge on the bench of a King's Court in India; there bas, consequently, scarcely ever been an instance of its being in the power of a judge to understand what is said by the native witnesses and prisoners:

* Appendix V. to Report on Affairs of E. I. Co., p. 116.

+ Letter to the Board of Control, September 1830. Ibid., p. 132.

and this defect generally extends to the barristers and officers of the court, as well as to the judges." Thirdly, it has happened, that opposite decisions have been passed by the Supreme Court and by the Sudder Dewanny Adawlut, regarding different portions of the same estate, on grounds equally applicable to all;* and it is very rare that the Privy Council has set aside a decree of the Sudder Court.

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We farther observe that Mr. Mill, in his evidence before the Judicial Committee,† recommends, upon very plausible grounds, the entire abolition of the King's Courts in India. He attributes the confidence which the natives at the presidencies are said to feel in the King's Courts, to an idea that they rest upon an authority superior to that of the government (which is, for obvious reasons, encouraged in certain quarters),—a ground of confidence which, so far from being an advantage, he rightly considers an evil of great magnitude.

It mus be assumed that, when the provisions of the last Charter Act were under consideration, this important subject met with a proper degree of attention. The result was, a resolution to give to the Governor-general in Council the power of making laws relating to all persons, British or native, foreigners or others, and all courts of justice; whereby he would be empowered to issue laws binding, to a certain extent, on the Supreme Court, especially as to jurisdiction. These are the very terms used by Mr. Grant in the summary of the main provisions of the proposed bill, transImitted to the Court of Directors on the 24th June 1833. By clauses 43, 44, and 45, of the Act 3 and 4 Will. IV. c. 85, which stand precisely as first introduced, power is given to the Governor-general in Council to make laws and regulations for repealing, amending, or altering any laws or regulations in India, and to make laws and regulations for all persons, British or native, foreigners or others, and for all courts of justice, whether established by his Majesty's charters or otherwise, and the jurisdictions thereof, and for all places and things, with certain exceptions; which laws and regulations, until they be disallowed by the Court of Directors, and repealed, are to have the force and effect in India of an Act of Parliament.

The intention of the Government, as well as of Parliament, in these enactments, may be ascertained from what passed in the debate on this part of the bill, in the House of Commons, on the 14th August 1833; whence appears that all parties distinctly understood that the object in view was to place Europeans and natives on a footing of perfect equality in respect to judicial proceedings.

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Mr. Wynn strongly objected to the power given by the Bill to the Governorgeneral in Council, of altering the laws in force, without any efficient check, as being a vast, monstrous, and absolute power; and urged that it would be better to give the Supreme Court the power of interfering in occasional cases. "It may be alleged," he observed, "that it is necessary to confer this power upon the Governor-general in Council, in order to assimilate, as far as possible, the laws which apply to natives and Europeans; but it is vain to expect to Note by Mr. Holt Mackenzie, in Appendix V. to Report on Affairs of E. I. Co., p. 29. † 29th June 1832. From the Mirror of Parliament.

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