The Online Library of Liberty

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• Introduction
• Textual Introduction
• Acknowledgments
• Writings On India
• Trade With India 1828
• Minute On the Black Act 1836
• Penal Code For India 1838
• The East India Company’s Charter 1852
• The Petition of the East-india Company 1858
• Memorandum of the Improvements In the Administration of India During the Last Thirty Years 1858
• Report to the General Court of Proprietors, Drawing Attention to the Two Bills Now Before Parliament Relating to the Government of India 1858
• A Constitutional View of the India Question 1858
• Observations On the Proposed Council of India 1858
• Practical Observations On the First Two of the Proposed Resolutions On the Government of India 1858
• The Moral of the India Debate 1858
• A President In Council the Best Government For India 1858
• Letter From the East India Company to the President of the Board of Control 1858
• Maine On Village Communities 1871
• Appendices
• Appendix A: Check List of Mill’s Indian Despatches (1823%u201358)
• Appendix B: List of Published Extracts From Mill’s Indian Despatches
• Appendix C: Editorial Emendations
• Appendix D: Index of Persons, and Works Cited, With Variants and Notes

MINUTE ON THE BLACK ACT

1836

EDITORS’ NOTE

British Library, Add. MSS 36,468 (Broughton Papers), ff. 401-7. As unpublished, not listed in Mill’s bibliography.

This paper is one of the briefs assembled by John Cam Hobhouse, Baron Broughton, President of the Board of Control 1835-41 and 1846-52, as guides in preparing his response (which was negative) to the petition from inhabitants of Calcutta against India Act XI (1836), the so-called Black Act. For the petition, see “Memorial of the Inhabitants of Calcutta and Others, of All Classes of His Majesty’s Indian Subjects, to the President and Board of Commissioners for the Affairs of India, and the Court of Directors of the East India Company,” PP, 1837-38, XLI, 264-6.

Minute on the Black Act

the petitioners pray that cases of marriage, divorce, and inheritance or succession, respecting Englishmen, should be removed altogether from the Company’s Courts, and that in all other civil cases (viz. debt, contract or trespass) wherein Englishmen are affected either as plaintiffs or defendants, an appeal should lie to the Sudder Adawlut or to the Supreme Court, at the option of the appellant.

The first of these prayers might without impropriety be complied with if the English inhabitants really wish it; because the marriages and divorces of the English, and the succession to their property, cannot in any way affect the interests or rights of the natives. On these matters therefore I, at least, see no reason why the appeal should not lie to the Supreme Court, or even, if the English wish it, why the Supreme Court should not have sole cognizance, until the Indian Code is completed,¹ which is all that the petitioners require.

But on the other question the interests and rights of the natives are most seriously at stake. When an Englishman in India, beyond the bounds of the Presidency, borrows or lends, or enters into contracts of any other kind with natives, he must be understood to do so according to the native laws, the only ones which are known to the parties he contracts with. The same reasoning applies to those cases of civil injury known by the name of trespass. An Englishman has no right to go up the country and say to the natives, I will regulate my transactions with you by the laws of my own country, and if you think I have injured you, you shall not have the redress your own laws would give you, but shall be satisfied with that given by laws you know nothing about. If an Englishman goes there for his own purposes, it is to be expected from him that he will make himself acquainted with the institutions and customs of the country: but it is not to be expected of the natives that they should, previous to dealing with him, make themselves acquainted with his laws and institutions: and their passive character and dread of the name of an Englishman make it necessary to give facilities instead of interposing difficulties to their resisting fraud or oppression when attempted to be practised on them by the more powerful race.

But if it be admitted that the English must be governed by the same laws as the natives, it is absurd to say that the Court which adjudicates their causes in the last resort, shall be the Supreme Court, which administers a totally different system of law, and from which an Englishman might again drag the native he had injured before the Privy Council.

The principal things to be done in meeting these petitioners are, certain misrepresentations to be set right and certain principles to be proclaimed.

First, as to the misrepresentations—

1st. The petition is so framed as to keep out of view the fact that the Act does not affect Calcutta. It is only when the Calcutta people settle and acquire property in the Mofussil, that they are placed under the Company’s Courts and the laws which govern the natives.

2dly. The petition talks invidiously of placing Europeans under native judges, sinking the fact that native judges have jurisdiction only in small sums, in which the expense of an appeal to the Supreme Court would be so out of proportion that it would never be incurred unless to harass an adversary.

3dly. The petition imputes all sorts of incapacities to the Company’s judges, in the teeth of facts, and in a manner grossly libellous to the service, but especially talks of judicial functions confided to inexperienced young men; forgetting that even if their prayer was granted, the same young men would continue to judge in the first instance, and that the question merely is whether the appeal from those young men shall lie to the Supreme Court or to the Sudder Adawlut: now the Sudder Adawlut does not consist of inexperienced young men but of the most able and experienced men who have passed all their lives in the execution of judicial functions, and are far superior on the average in judgment and experience to the young or second rate barristers who go out to be judges of the Supreme Court with all the self conceit and professional prejudice of men who know their own technicalities and little else—though there are some honorable exceptions, as Sir Edw. Ryan.²

Secondly: The principles to be proclaimed—

The first and greatest of these is, that the Natives of India need protection against the English, and that to afford them that protection is one of the first duties of the British government in India. To shew the necessity of this, reference may be had to the many parliamentary papers which shew the oppression and injustice the natives are subject to from the indigo planters, and the extreme difficulty of protecting them from it. The natives may as well have no justice at all, as be told to look for it to the Supreme Court, probably the most expensive tribunal in the world, and placed often a thousand miles from them. Accordingly all parties, the Judges of the Supreme Court included, joined in recommending that the Court should be divested of its jurisdiction over the Mofussil, or that that jurisdiction should be very much curtailed.

Secondly; it should be proclaimed that the English who resort to India or any other foreign possession, to make their fortunes, are naturally inclined to despise the natives and to seek to make themselves a privileged caste. That this is a pretension which ought to be resisted; and it is because the Company has always resisted it, that the English public of Calcutta are as a body, always hostile to the Company’s government.

Lastly; our empire in India, consisting of a few Europeans holding 100 millions of natives in obedience by an army composed of those very natives, will not exist for a day after we shall lose the character of being more just and disinterested than the native rulers and of being united among ourselves. It is difficult enough for the Govt to watch sufficiently over the acts of its own servants: but when to these come to be added a far greater number of Europeans spread over the whole country, coming into competition and collision with the natives in all walks of life, and over whom the government has no control but through the courts of justice; most of them men contemplating only a temporary residence; many of them needy, and not a few of them profligate; then unless the control of the courts of justice over these men be strict and even rigid, the conduct of a large proportion of them is sure to be such as to destroy the prestige of superior moral worth and justice in dealings which now attaches to the British name in India: and unless the government can coerce them with a strong arm, they will form in the eyes of the natives an English public foreign and often hostile to the government, and the overawing influence of our power and capacity which has been derived from our union, will be weakened; and thus our government in India will gradually lose both its moral supports—and physical support, independent of those, it has none.

[1 ]See “Penal Code for India” below.

[2 ]Edward Ryan (1793-1875), chief justice of Bengal since 1833.