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CHAP VI. - James Mill, The History of British India, vol. 5 
The History of British India in 6 vols. (3rd edition) (London: Baldwin, Cradock, and Joy, 1826). Vol. 5.
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Result of Lord Cornwallis’s Financial and Judicial Reforms.
BOOK VI. Chap. 6. 1793.Of the regulations, constituting this great revolution in the government of the Indian people, the natural consequences were, within a few years, pretty fully developed in practice; and the present is perhaps the occasion on which the instructive picture of them can with most advantage be presented to view. The trespass upon chronological order, in the case of events which scarcely fall into the ordinary channel of narration, will be amply compensated by the advantage of surveying, in immediate sequence, institutions and their results.
According to the order in which the institutions were considered, the consequences of the new system of finance come first to be described. Its more immediate object was, to establish a landed aristocracy in the persons of the Zemindars. That project, whatever character may be thought to belong to it, has completely failed.
In default of payment of their taxes on the part of the Zemindars, the security reserved for government was, to put up to sale as much of the land as would suffice to discharge the arrears. The important question, of judicature with a multitude of technical forms, or judicature without a multitude of technical forms, was curiously illustrated on this occasion. The government had established courts ofBOOK VI. Chap. 6. 1793. law, and appointed for them a numerous list of forms, through which it required much time to pass. In their own case, however, it would, they perceived, be highly desirable to obtain speedy justice. To obtain speedy justice, they saw, it would be absolutely necessary to be exempted from technical forms. To what expedient then had they recourse? To the abolition of technical forms? No, indeed! They made a particular exception of their own case. They enacted that, in all suits for rent or revenue, the courts should proceed by summary process; nay, further, that in such suits the proceedings should be exempted from those fees and expenses to which other candidates for justice were appointed to submit. By a high and conspicuous act, more expressive than words, they declared that one thing was conducive, or rather essential, to justice. They established, by their legislative authority, the very reverse. On what conceivable principle, was speedy and unexpensive justice good for the government, and not good for the people? From which of its imaginary evils was it exempt in the case of the government, and not equally so in the case of the people.
With how much inaccuracy and ignorance the measure had been taken of the moral, intellectual, and political state of the Zemindars, when it was supposed that, by rendering them proprietors of the land, under a fixed but heavy land tax, provision was made for their prosperity, for the improvement of the country, and the happiness of the great body of the people, experience early evinced.
The selling of the lands immediately began; and proceeded with a rapid pace. In the year 1796, the land advertised for sale comprehended a rentroll BOOK VI. Chap. 6. 1793.of 28,70,061 sicca rupees;1 which, according to the total assessment, was nearly one tenth of the whole of Bengal, Bahar, and Orissa, in a single year.2 By the progress of this operation, the whole class of the ancient Zemindars, instead of being erected into an aristocracy, was speedily destroyed. In 1802, Sir Henry Strachey, in his answer to a list of interrogatories which had been circulated to the judges, asserted that “an almost universal destruction” had overtaken the Zemindars; and that if any survived, they were, “according to the notions of the Company’s servants, reduced to the same condition, and placed at an equal distance from their masters, as their lowest ryots.”3.
A cause which accelerated, but by no means produced, the ruin of the Zemindars, (for the incompatibility of their characters, with the situation in which they were placed, led infallibly to the same result) was the delay which they experienced in obtaining payment from the ryots. The government had given to themselves the benefit of summary process with regard to the Zemindars. But they left the Zemindars to the tedious progress through all the technical forms of the courts in extracting payment from the ryots. Under the observance of many tedious forms the decisions of the courts were so slow, that in the space of two years the accumulation of undecided causes threatened to arrest the course of justice. In one district alone, that of Burdwan, the suits pending before the judge exceeded thirty thousand; and it appeared by computation upon the established pace of the court, that no candidate for justice could expect to obtain a decision during the ordinary periodBOOK VI. Chap. 6. 1793. of his life.
The collector of Burdwan stated the matter correctly, in reporting to government the following complaint of the Rajah; who “submits it,” he says, “to your consideration, whether or no it can be possible for him to discharge his engagements to government, with that punctuality which the regulations require, unless he be armed with powers, as prompt to enforce payment from his renters, as government had been pleased to authorize the use of, in regard to its claims on him: and he seems to think it must have proceeded from an oversight, rather than from any just and avowed principle, that there should have been established two modes of judicial process, under the same government; the one, summary, and efficient, for the satisfaction of its own claims; the other, tardy, and uncertain, in regard to the satisfaction of the claims due to its subjects; more especially in a case like the present, where ability to discharge the one demand necessarily depends on the other demand being previously realized.”1
The effects of this system upon the minds, as well as upon the condition of the Zemindars cannot be doubtful. In answer to an inquiry of government in 1802, the collector of Midnapore said; “All the Zemindars with whom I have ever had any communication in this, and in other districts, have but one sentiment, respecting the rules at present in force for the collection of the public revenue. They all say, that such a harsh and oppressive system was never before resorted to in this country; that the custom of imprisoning landholders for arrears of revenue, was, in comparison, BOOK VI. Chap. 6. 1793.mild and indulgent to them: that, though it was no doubt the intention of government to confer an important benefit on them by abolishing this custom, it has been found, by melancholy experience, that the system of sales and attachments, which has been substituted for it, has, in the course of a very few years, reduced most of the great Zemindars in Bengal to distress and beggary; and produced a greater change in the landed property of Bengal, than has, perhaps, ever happened, in the same space of time, in any age, or country, by the mere effect of internal regulations.”1
“The great men formerly,” says Sir Henry Strachey, “were the Mussulman rulers, whose places we have taken, and the Hindu Zemindars. These two classes are now ruined and destroyed.”2
We have thus seen the effects of the new system upon the Zemindars. Let us next endeavour to trace its effects upon a much more important class of men, the ryots. Unfortunately, for this more interesting part of the inquiry, we have much more scanty materials. In the documents which have been exhibited, the situation of the ryots is in a great measure overlooked. And it is from incidental circumstances, and collateral confessions, that we are enabled to form a judgment of their condition. This result itself is, perhaps, a ground for a pretty decisive inference; for if the situation of the ryots had been prosperous, we should have had it celebrated, in the loftiest terms, as a decisive proof, which surely it would have been, of the wisdom and virtues of our Indian government.
When it was urged upon Lord Cornwallis, by Mr. Shore, and others, that the ryots were left in a greatBOOK VI. Chap. 6. 1793. measure at the mercy of the Zemindars, who had always been oppressors, he replied, that the permanency of the landed property would cure all those defects; because, “where the landlord has a permanent property in the soil, it will be worth his while to encourage his tenants, who hold his farm in lease, to improve that property.” It has already been shown how inapplicable this reasoning was to the case which it regarded. It now appears that the permanency, from which Lord Cornwallis so fondly expected beneficial results, had no existence; that the plan which he had established for giving permanency to the property of the Zemindars, had rendered it less permanent, than under any former system; had in fact destroyed it. The ryots, left without any efficient legal protection, were entrusted to the operation of certain motives, which were expected to arise out of the idea of permanent property; and, practically, that permanence had no existence. The ryots were, by consequence, left altogether without protection.
“Fifty means,” says a very intelligent and experienced servant of the Company, “might be mentioned, in which the ryots are liable to oppression by the Zemindars, even when pottahs have been given. The Zemindars will make collusive engagements, and get ryots to do so. Bajeh Kherck, and village expenditure, will go on, at a terrible rate, as it does in the Circars; and where I have no doubt but there are farmers, and under farmers, and securities, and all the confusion that arises from them; that pottahs are not given, and that village charges are assessed on the ryot as formerly.”1
It is wonderful that neither Lord Cornwallis, nor BOOK VI. Chap. 6. 1793.his advisers, nor his masters, either in the East India House or the Treasury, saw, that between one part of his regulations, and the effects which he expected from another, there was an irreconcileable contraction. He required, that fixed, unalterable pottahs should be given to the ryots; that is, that they should pay a rent which could never be increased, and occupy a possession from which, paying that rent, they could never be displaced. Is it not evident, that in these circumstances, the Zemindars had no interest whatsoever in the improvement of the soil? It is evident, as Mr. Thackeray has well remarked, that in a situation of this description, it may be “the Zemindar’s interest not to assist, but ruin the ryot; that he may eject him from his right of occupancy, and put in some one else, on a raised rent; which will often be his interest, as the country thrives, and labour gets cheap.”1
It is by the judges remarked, that numerous suits are instituted by the ryots for alledged extortions. The Zemindar lets his district in farm to one great middleman, and he to under farmers, to whose exactions upon the ryots it appears that there is really no restriction. In one of the reports, in answer to the queries of 1802, we are informed, that “the interchange of engagements between the parties, with few exceptions, extends no further than the Zemindar’s farmer, who is here called the sudder (or head) farmer, and to those among whom he subdivides his farm in portions. An engagement between the latter and the cultivator, or heads of a village, is scarcely known except the general one, to receive and pay, agreeable to past, and preceding years; and for ascertaining this, the accounts of the farm are no guide. The Zemindar himself, seeing that no confidence is to beBOOK VI. Chap. 6. 1793. placed in the accounts rendered him of the rent-roll of the farm, from the practice which has so long prevailed of fabrications and false accounts, never attempts to call for them at the end of the lease; and, instead of applying a corrective to the evil, increases it, by farming out the lands literally by auction; and the same mode is adopted in almost every subdivision of the farm.”1 This is the security which is afforded to the cultivators, by the boasted permanency of the property of the Zemindars. That any prosperity can accrue to this class of the people, or encouragement to agriculture, from such an order of things, is not likely to be alledged.
The relation established by Cornwallis between the ryot and the Zemindar, was remarkable. The Zemindar had it in his power to pillage the ryot; but the ryot had it in his power to distress the Zemindar. He might force him to have recourse to law for procuring payment of his rent; and the delay and expense of the courts were sufficient to accomplish his ruin. It is the habit of the people of India to pay nothing until they are compelled. A knowledge that they might always ward off the day of payment to a considerable distance, by waiting for prosecution, was sufficient motive to a great proportion of the ryots to pursue that unhappy course, which, in the long run, was not less ruinous to themselves than to the Zemindars.
The following picture of these two great classes of the population, is presented by a high authority. “By us all is silently changed. The ryot and the Zemindar, and the gomastah, are by the levelling power of the Regulations, very much reduced to an BOOK VI. Chap. 6. 1793.equality. The protecting, but often oppressive and tyrannical power of the Zemindar, and the servitude of the ryot, are at an end. All the lower classes,—the poorest, I fear, often in vain—now look to the Regulations only, for preserving them against extortion and rapacity. The operation of our system has gradually loosened that intimate connexion between the ryots and the Zemindars, which subsisted heretofore. The ryots were once the vassals of their Zemindar. Their dependance on the Zemindar, and their attachment to him, have ceased. They are now often at open variance with him; and, though they cannot contend with him on equal terms, they not unfrequently engage in law-suits with him, and set him at defiance. The Zemindar, formerly, like his ancestors, resided on his estate. He was regarded as the chief and the father of his tenants, from whom all expected protection, but against whose oppressions there was no redress. At present the estates are often possessed by Calcutta purchasers, who never see them; and whose agents have little intercourse with the tenants, except to collect the rents.”1
“The ryots,” says the same excellent magistrate, “are not, in my opinion, well protected by the revenue laws; nor can they often obtain effectual redress by prosecuting, particularly for exaction and dispossession.” And these are the very injuries to which they are most exposed. The reason Sir Henry immediately subjoins. “The delay and expense attending a law-suit are intolerable, in cases where the suitor complains, which almost invariably happens, that he has been deprived of all his property. The cancelling of leases, after the sale of an estate for arrears, must frequently operate with extreme harshnessBOOK VI. Chap. 6. 1793. and cruelty to the under tenants.”1
The Indian Government, in their observations addressed to the Court of Directors, “appeared,” say the Select Committee of the House of Commons, “unwilling to admit that the evils and grievances complained of, arose from any defects in the public regulations. The very grounds of the complaints, the government observed, namely, those whereby the tenantry were enabled to withhold payment of their rents, evinced that the great body of the people, employed in the cultivation of the land, experienced ample protection from the laws, and were no longer subject to arbitrary exactions.”2 That the great body of the people enjoyed protection, because they could force the Zemindars to go to law for their rent, is an inference which it would be very unwise to trust; which appears to be, as there is no wonder that it should be found to be, contrary to the fact. But suppose the fact had been otherwise; and that the ryots received protection; was it no evil, upon the principle of the Regulations, that the Zemindars were ruined? Yet so it is, that the organ of government in India found this ruin, when it happened, a good thing; affording, they said, the satisfactory reflection, that the great estates were divided into small ones; and that, by change of proprietors, the land was transferred to better managers.3
Upon the review of the conduct of the government, in thus praising, one after another, the results of the new system, whatever they might be, those originally expected from that system, or the very reverse; the same Committee of the House of Commons, BOOK VI. Chap. 6. 1793.though commonly very reserved in their censorial essays, observe, “It was thus, in explaining to the authorities at home the effects and tendency of the new system, that the government in India generally found something to commend. When the operation of the regulations proved adverse to their expectations, in one respect; in another, something had occurred to console them for the disappointment.”1 In fact, they only pursued the grand highway, the beaten common track, of misrepresentation; a track in which the instruments of government, as far as concerns their own operations, and the apparatus to which they have attached their interests, can seldom be without a motive to tread. The evil effects, which cannot be concealed, are represented as trivial. All those, which are not calculated to force themselves upon the public attention, are carefully covered from view. Every effect, which is either good, or absurdly supposed to be so, is exaggerated and extolled. And many good effects, which it is in reality of a nature to obstruct rather than produce, are ascribed, by some through ignorance, by others from fraud, to the object, whatever it is, which it is the wish to applaud.
The unhappy reluctance of the Indian rulers, to see any imperfection in the scheme of government which they had devised, was, however, at last, overcome. A Regulation, or law, was promulgated in 1799, the preamble of which acknowledged, “that the powers allowed the landholders for enforcing payment of their rents, had, in some cases, been found insufficient; that the frequent and excessive sales of land, within the current year, had been productive of ill consequences, as well towards the land proprietors, and under tenants, as in their effects on the public interest, in the fixed assessment of the land revenue;BOOK VI. Chap. 6. 1793. that the Zemindars were understood to have made purchases of their own lands in fictitious names, or in the names of their dependants, the object of which was to procure, by fraudulent means, a reduction of the rate of assessment.”1 For remedy of the evils, now at last acknowledged, it was enacted, that the Zemindars should have the use of summary process, with the power of attachment and sale, in realizing their rents. The reflections of Sir Henry Strachey, upon this reform of the new law, eminently merit the attention of both the philan thropist, and the statesman. “In passing,” says this highly respectable witness, “the seventh regulation, 1799, it was, I believe, the design of government (a very reasonable and liberal design in my opinion) to enable the Zemindars to collect their just demands of rent, with punctuality, and without expense. And I think it would have been just and considerate, at the same time, to have facilitated to the ryots the means of obtaining redress against extortioners. But the fact is—the ruin of one Zemindar being more conspicuous at the Sudder than that of 10,000 ryots, his interests naturally attract the attention of the legislature first; and as, in the proposal of any plan connected with finance, it is required to set out with the maxim, that the sudder jumma can on no pretence be lowered, there remains no other resource for helping the Zemindars, than the restoration of part of the power they possessed of old to plunder their tenants. Exaction of revenue is now, I presume, and, perhaps, always was, the most prevailing crime throughout the country. It is probably an evil necessarily attending the civil state of the ryots. I think it rather unfortunate than otherwise, that it BOOK VI. Chap. 6. 1793.should be less shocking to humanity than some foujdarry crimes. I know not how it is that extortioners appear to us in any other light than that of the worst and most pernicious species of robbers. It will be found, I believe, that the condition of husbandmen, in eastern countries, is incompatible with security, and that sort of independence which enables men to maintain themselves against oppression and violence. The public revenues, which are in reality the rent of land, are, throughout the East, collected by a system of extortion, violence, and barbarity of every kind.” After alluding to the attempts, not without a partial success which had been made by the Company’s government, for the redress of that great class of evils, Sir Henry goes on to say, “The frequency, however, of the attachments and sales, under the Regulation of 1799, would alone serve to prove, that the revenues are not collected without extreme misery to the ryot.” Two circumstances will be sufficient to show the unlimited oppression to which the ryots stand exposed. The first is, that the Zemindars are empowered to distrain, previous to a legal judgment, “without adducing,” to use the language of Sir Henry, “any evidence of their claim before they proceed to enforce it, and acting as judges in their own cause.” The second circumstance is, that “the ryots are almost totally deprived of the power of seeking redress, by the expense of the courts of law.”1 Knowing this, can any one be surprised, when Sir Henry Strachey declares, “The laws regarding attachments are greatly abused, and are productive of extreme oppression.”
Some diminution in the outstanding balances, and some improvement in the sales of the estates of Zemindars, having become a subject of boast; it is to the regulation, which authorized the above-statedBOOK VI. Chap. 6. 1793. oppressions, that “this effect,” says Sir Henry Strachey, “is chiefly to be ascribed. Yet,” he adds, “as if the mode in which the rents are levied, and the condition of the ryots, were matters not necessary to be noticed, it is frequently pronounced at once, as a position admitting of no doubt, that these favourable sales afford a substantial proof of the lightness of the assessment, and of the flourishing state of the country.”1
The Committee of the House of Commons remark, that so inadequate was the provision for judicature to a population of 27,000,000,1 when the collectors alone were the judges, that the people, among themselves, must have settled the greater number of their disputes, “by modes peculiar to their tribes or castes, or by reference to their gooroos, or spiritual guides;” That it was the object, on the other hand, of Lord Cornwallis, to afford the means of a regular judicial decision, in every case, to every inhabitant of the country, “without any impediment from the distance the complainant would have to travel for redress;” an object so essential undoubtedly to goodness of government, that it is the principal end of its institution.
It soon appeared, however, that the provision made for this important business was ill adapted to its end. The tedious forms through which the judges had to travel, permitted them to decide so small a number of causes in a given portion of time; and the delay and uncertainty which attended a technical and intricate mode of procedure, afforded so much encouragementBOOK VI. Chap. 6. 1793. to dishonest litigation, that the pace of decision fell prodigiously behind that of the multiplication of suits; and the path of justice might in some places, be regarded as completely blocked up.
A more melancholy exhibition of the weakness of the human mind, arising from the wretched nurture which it still receives, cannot easily be discovered or conceived, than that which appears in the proceeding we are next to relate.
To obviate the disproportion which was found to exist between the number of judicial decisions and the occasions for them, two rational expedients presented themselves. One was to disencumber the Courts of every operation not essential to the ends of justice; by which means they might have been enabled to get through with a much greater number of causes. If, even by the most expeditious mode of procedure, the Courts were unable to decide as many causes as were brought to them, the case was plain; the number of courts was too small for the business of the country, and, wheresoever necessary, ought to have been increased.
This was not the course pursued by the Anglo-Indian government. No. To ease the pressure upon the Courts, they enacted, that every man who applied for justice should be punished; literally punished; as if the application for justice were a crime; in hopes that many persons, if they were punished on account of their applying for justice, would cease to apply. Government enacted, that every applicant for justice should be fined; that is, should be compelled to pay a sum of money upon the institution of a suit; and various other sums during the progress of it, by the imposition of taxes upon the proceedings: All for the declared purpose, the sole purpose of driving people BOOK VI. Chap. 6. 1793.away from the Courts. Such was the scheme for the better administration of justice which was devised by British legislators in the year 1795; such the scheme, the existence of which they still approve; and finally such is the scheme which obtained the applause of a Select Committee of the British House of Commons in the year 1810.1
Nothing is more easy than to lessen the business of the Courts of law: to diminish it to any proposed extent; to produce its annihilation. What are the means? The most obvious in the world; denial of justice. Decree that no person whatsoever who is less than six feet high, shall be admitted to sue in a court of justice; and you will reduce the business to a very manageable quantity: Decree that no man who is less than eight; and you reduce it to nothing. A man’s stature is surely as good a test to judge by, whether he has received an injury, as his purse.
The delusion is so gross, which in this case produces its effects upon the minds of the deluded, that the contemplator is astonished at finding men who are subject to its influence still occupying, and that almost exclusively, the seats of power.
Of the two parties to a suit it is not of absolute necessity that either should be dishonest: because the case may have in it such obscurity as to require the decision of a judge. But these cases are, or at any rate, if there was a good code of laws, would be, very rare. In by far the greater proportion of cases, when law-suits are numerous, one of the parties is intentionally dishonest, and wishes to keep or to gain some unjust advantage.
When legislators, therefore, propose to drive people from the Courts of Justice by expense, they must of necessity imagine that it is the dishonest parties onlyBOOK VI. Chap. 6. 1793. whom the expense will deter; for it would be dreadful to make laws to prevent the honest from receiving a legal protection. But is it easy for the wit of man to frame a proposition stamped with stronger characters of ignorance or corruption than this? That to render access to justice difficult is the way to lessen the number of crimes. What is the greatest encouragement to injustice? Is it not every thing which tends to prevent immediate redress. What is the greatest discouragement to injustice? Every thing which tends to ensure immediate redress. But tedious and expensive forms of law, of which uncertainty is a consequence, have the greatest tendency to prevent immediate redress. They are, therefore, a great encouragement, not a hindrance to injustice.
Let us contemplate the motives which actuate the two parties to a civil suit, the just, and the unjust. The unjust man is actuated by the desire, wrongfully to retain, or wrongfully to obtain, possession of an article of property. The just party is actuated by the desire, rightfully to obtain, or rightfully to retain, the same possession. What is the evil, the hazard of which the unjust man incurs? The costs of suit. What is the good the chance of which he obtains? The whole of the property forming the subject of dispute. It is evident, that a very slender chance in the latter case may outvalue all that is risked in the former. It is evident, that, considering the great propensity of mankind, particularly of the dishonest part, to over-value their own chances of good fortune, the risk of the costs will in many instances be run, where the chance of success is exceedingly small. In the case of sums of any considerable amount, the advantage of retaining the property, even during the long period which under an intricate form of procedure is required to arrive at the BOOK VI. Chap. 6. 1793.execution of a decree, may be more than a compensation for all the expense which it is necessary to incur.
Even in those cases in which the expense bears a great proportion to the value of the matter in dispute; those cases in which the value of the property is moderate; what are the motives by which the honest and dishonest litigant are liable to be impelled? On the side of injustice there is, first, the certain advantage of delay, and there is, secondly, the chance of success. On the side of justice there is only the chance of success.
Suppose then chances of success to be equal; the motives to incur the expense of a law-suit would in that case be always greatest on the side of the dishonest litigant; none therefore but the injured is in that case liable to be deterred from law-suits by fines upon the application for justice.
As it is evident that, in proportion to the chance which injustice has for success in the Courts of Justice, the greater is the motive which the unjust man has not to be deterred, and the just man has to be deterred by the expense; so it is also evident that this is not all: it is evident, that the motive of the unjust litigant is not proportioned to the real chance which he has for a decision favourable to his injustice; but that it rises to the pitch of his own exaggerated estimate of his chance of success. Now, in all systems of procedure, which by technical forms render the judicial business complex, intricate, full of subtleties and snares, the chance of success to injustice, in a vast proportion of cases, is very great. This chance, most assuredly, is the producing cause of a great proportion of lawsuits. This, together with the advantages of delay, derived from the same system of forms, is, where the corruption of the judge is not contemplated, accountable for all suits at law, except that comparativelyBOOK VI. Chap. 6. 1793. small number, in which the right of the honest man is really a matter of obscurity and doubt. In all cases, therefore, in which the unjust man estimates this chance at more than the expense of a suit, it is not the man who injures, but the man who is injured, whom the fine upon justice operates to deter. In all such cases the fine upon the application for justice has no other effect than to compel the honest man to submit to iniquity; no other effect than that of affording a province to injustice, in which it may range at will.1
In all cases then, in which this expedient does not deter the unjust litigant, it is mischievous beyond expression. The cases in which it can deter the unjust litigant must always be few; because it is evident, that the motive, under the present state of the law, is very great to unjust litigation, and that the counter motive, arising from a certain addition to the expenses of suit is in comparison small. If it be considered, that all litigation is caused by the motive to injustice, unless in the comparatively small number of cases in which the point of right is really doubtful, it must be regarded as a motive very powerful, since it governs the conduct of so great a number of men. If it be considered that the only force employed, by the new expedient of the Indian government, to counter BOOK VI. Chap. 6. 1793.act this motive, is a certain difference of expense, it will not be regarded as possessing much efficacy to deter from litigation the man who expects from it an unjust advantage.
Thus stands the case with regard to the class of suitors who can endure the oppression of a law-suit, rendered expensive by legislative design. There is, however, a different class of persons; a class of persons including the whole population, with the deduction of a small proportion; and how stands the case with regard to them? They are utterly unable to defray the expense of a law-suit, rendered costly and oppressive by legislative design. They are, by consequence, excluded from the Courts of Justice. A barrier, altogether insurmountable, is set up between them and the services of the judge. Except in the cases affecting the public peace, and calling for public prosecution, justice is denied them: They are placed out of the protection of law. In this, the most large, and, by its largeness, the most interesting and important of all the portions of the demand for justice, the man who intends injustice clearly sees, that he may perpetrate his purpose in absolute safety. The poor man is debarred from even the application for redress. It must be confessed, then, that in this large department of the field of justice, law-suits are prevented by expense; effectually prevented, by rendering plunder and oppression, without remedy, the lot of the innocent, and holding out the premium of perfect impunity to injustice.
A provision, indeed, was made for persons suing, in the character of poor. But to how little effect that provision exists any where, no words are necessary to make known.
A mode of procedure, inartificial, expeditious, and cheap, before native commissioners, provided for suits on account of small sums, though much more useful,BOOK VI. Chap. 6. 1793. was extremely inadequate to the extent of the demand.1
The Court of Directors appear, in that dispatch of theirs which has been recently quoted, to imagine, that the choice lies exclusively between the present institution, of which the evils are so enormous, and the arbitrary and precipitate system of the natives. A slight degree of reflection, exempt from the shackles tied upon their minds by custom and authority, would point out to them another course, infinitely preferable to both. Let them give to the people distinct definitions of their rights in an accurate code, and give them courts of justice, which will decide, not precipitately, but carefully; free, however, from technical impediments, and therefore quickly: and they will both enable their courts to investigate a greater number of causes; and will exceedingly reduce the number of suits.
It is the admirable effect of an excellent administration of justice, that it prevents the very intention to commit injury, by making it certain to everyBOOK VI. Chap. 6. 1793. one that injustice will be disappointed of its aim. Who would go into court for a decision, aware that his cause was bad, if he knew that its merits would be accurately explored, and justice immediately awarded? In this case the minutest portion of benefit could not be expected from iniquitous litigation. Iniquitous litigation, therefore, would cease. And after the deduction of suits instituted or provoked for purposes of injustice, very few in comparison would remain. But the case is altogether different, when a man knows that it will be months, or perhaps years, before his injustice will come in turn for investigation; that even then, it is only ceremonies that are to be performed, for a considerable space of time, while the merits of the question remain unexplored; that the law is unwritten, arbitrary and obscure; that the procedure is exceedingly difficult to follow without mistakes; and that on these mistakes, totally regardless of the merits of the question, the decision may finally depend. The advantages of injustice, in a state of things like this, are so very numerous, and the encouragement to unjust litigation so very great, that the multiplication of suits may be regarded as a natural and unavoidable result.
No proposition, derived from political experience, may be relied on more confidently than this. That the multiplication of law-suits is a proof of the bad administration of justice: that a perfect administration of justice would almost annihilate litigation: and that the attempt to reduce it by any other means, such as that of expense, is to hold out encouragement to plunderers, and to deny protection of law to the honest and just.
When any great public duty is to be performed, and the number of performers is found to be too small BOOK VI. Chap. 6. 1793.for the demand, the most obvious of all expedients is to increase the number. With regard to this expedient for enabling the government in India to do justice between its subjects, the Committee of the House of Commons made an extraordinary declaration in the year 1812. “An augmentation of the number of European Judges, adequate to the purpose required, would be attended with an augmentation of charge, which the state of the finances is not calculated to bear; and the same objection occurs to the appointment of assistant Judges.”1 Never, since man had the use of language, was a more terrible condemnation of any government pronounced. Of all the duties of government, that of maintaining justice among the people is the foremost. This, in fact, is the end for which it exists. Here is said to be a government, which raises upon the people a revenue so vast, that, by avowed intention, it is literally all that they can bear; that is, oppressive to the highest pitch which oppression can reach without desolating the country: And all this revenue is squandered away, till not a sufficiency remains to hire Judges for the distribution of justice!
What is made of all this money? To what preferable purpose is it applied? High matter, in large quantity, would be contained in a proper answer to these questions.
Having surveyed the effects, which practice and experience have made visible, to those who least enjoy the powers of reflection, of the Regulations made for decision upon the civil rights of the people of India; we come, in order, to the effects which have been produced by the Regulations made for the suppression of crimes, including both penal judicature and police.
In two ways, a system of legislative provisions forBOOK VI. Chap. 6. 1793. the suppression of delinquency may be defective. The burthens which it imposes, in the way of expense and in the way of infliction, may be too heavy. It may not answer its end; instead of completely repressing offences, allowing them continually to increase.
In regard to burthens, under the reforms which we are now contemplating expense was increased. The inflictions according to the ideas of Englishmen, were mitigated; but the banishments, substituted to the mutilations, seem to be regarded with still greater horror by the natives than the mutilations themselves. It is unnecessary to dwell upon this topic. The most important point for contemplation is, the diminution or increase of the security of the people by the increase or diminution of crimes. In this respect, too, the effects of the English Regulations have been deplorable.
Of all the crimes by which the private members of the same community infest one another, robbery, in the idea of which are included plunder and murder, is the most deeply fraught with mischief, both by the evil brought upon the immediate victims; and by the alarming sense of insecurity which the prevalence of that crime strikes into the mind of almost every individual in the community. This, the highest of all crimes, assumes an aspect peculiarly terrible in India; where the robbers (in the language of the country decoits) form themselves into confederacies, and perform their crimes with a combination of forces which it is not easy to resist. This class of offences did not diminish under the English government, and its legislative provisions. It increased; to a degree, highly disgraceful to the legislation of a civilized people. It increased under the English BOOK VI. Chap. 6. 1793.government, not only to a degree, of which there seems to have been no example under the native governments of India, but to a degree surpassing what was ever witnessed in any country in which law and government could with any degree of propriety be said to exist.
The testimony of the judges, and other officers of the Company’s government, shall be adduced, as much as possible, in their own words. “The crime of decoity” (that is robbery by gangs), says Sir Henry Strachey, in his report as judge of circuit in the district of Calcutta in the year 1802, “has, I believe, increased greatly, since the British administration of justice. The number of convicts confined at the six stations of this division (independent of Zillah twenty-four pergunnahs) is about 4,000. Of them probably nine-tenths are decoits. Besides these, some hundreds have of late years been transported. The number of persons convicted of decoity, however great it may appear, is certainly small, in proportion to those who are guilty of the crime. At Midnapore, I find, by the reports of the police darogas, that, in the year 1802, a period of peace and tranquillity, they sent intelligence of no less than ninety-three robberies, most of them, as usual, committed by large gangs. With respect to fifty-one of these robberies, not a man was taken; and for the remaining forty-two very few, frequently only one or two in each gang. It must not be supposed that decoity prevails in the district of Midnapore to a greater extent than in other districts of this division; on the contrary, I think there is less, except perhaps in Beerbhoom. In Burdwan there is certainly three or four times as much.”1
The Judge of circuit in the Rajeshahye division in 1808, in a letter to the Register to the NizamutBOOK VI. Chap. 6. 1793. Adaulut, says, “It is with much diffidence I address the Nizamut Adaulut on the present occasion; for I have to propose measures, the nature of which they are, I know, generally averse to. I do not wait till the end of the circuit, when, in the course of official routine, I should have to make a report to the court; because the evil which I complain of is great, and increasing; and every instant of delay serves only to furnish new victims to the atrocities which are daily committed.—That decoity is very prevalent in Rajeshahye has been often stated. But if its vast extent were known: if the scenes of horror, the murders, the burnings, the excessive cruelties, which are continually perpetrated here, were properly represented to government, I am confident that some measures would be adopted, to remedy the evil. Certainly there is not an individual, belonging to the government, who does not anxiously wish to save the people from robbery and massacre. Yet the situation of the people is not sufficiently attended to. It cannot be denied, that, in point of fact, there is no protection, for persons or property. Such is the state of things which prevails in most of the Zillahs in Bengal. But in this it is much worse, than in any other I have seen. I am fully persuaded, that no civilized country ever had so bad a police, as that which Rajeshahye has at present.”1
Mr. Dowdeswell, the secretary to government, in a report which he drew up, in 1809, “On the general state of the police of Bengal,” says; “Were I to enumerate only a thousandth part of the atrocities of the decoits, and of the consequent sufferings of the people; and were I to soften that recital in every BOOK VI. Chap. 6. 1793.mode which language would permit, I should still despair of obtaining credit, solely on my own authority, for the accuracy of the narrative.” He goes on to state, that, “Robbery, rape, and even murder itself, are not the worst figures, in this horrid and disgusting picture. An expedient of common occurrence with the decoits, merely to induce a confession of property, supposed to be concealed, is, to burn the proprietor with straw or torches, until he discloses the property, or perishes in the flames. And when they are actuated by a spirit of revenge against individuals, worse cruelties, if worse can be, are perpetrated by those remorseless criminals. If the information obtained is not extremely erroneous, the offender, hereafter noticed, himself committed fifteen murders in nineteen days: And volumes might be filled with the atrocities of the decoits, every line of which would make the blood run cold with horror.”1
Mr. Dowdeswell inserts an abstract of three trials which had been recently adjudged in the court of Nizamut Adaulut. It is highly proper that one should appear as a specimen. The prisoners, nine in number, were charged, with being the principal actors in a gang of robbers, who on the night of the 27th August, 1808, perpetrated the enormities which the prosecutor related, as follows: “That about twelve o’clock on the night on which the robbery and murders took place, he was sleeping in a house at a short distance from that of his father, and being awoke by the noise of robbers, went out, and saw that a party of about fifty decoits had attacked his father’s house; that, from fear, he concealed himself in a plantain garden, within fifty yards of the spot, from whence he saw the robbers drag out from the house his father and mother; and, after binding their hands and feet,BOOK VI. Chap. 6. 1793. apply lighted straw and torches to their bodies, demanding of them, at the same time, to point out where their money was concealed; that the unfortunate people assured them, they had none; but that the robbers, proving inexorable, went into the house and brought from it a quantity of hemp, which they twisted round the body of Loharam, and, after pouring on it ghee, or clarified butter, to render it more inflammable, set fire to it:—That they then procured a quilt from the house, which they also moistened with ghee and rolled round the body of Loharam:—That the prisoners Balka Sirdar, Nubboo Sirdar, and Kunkye Cupally, at the direction of the prisoner Bulram Sirdar, threw the prosecutor’s father on the ground, and keeping him down, with a bamboo which they held over his breast, set fire to the quilt:—That at this time the cries of the unfortunate man were most shocking, the robbers continually calling on him to tell where his money was, and he assuring them that he had none, and imploring them to take his cows, or anything they might find in his house:—That the robbers, however, still proceeded to further cruelty, having procured some mustard-seed, and torn up the flesh of Loharam’s breast, by drawing a large bamboo several times across it, pounded the mustard-seed on the sores, with a view to make the torment more excruciating :—That, at the same time the mother of the prosecutor was tortured nearly in the same manner, by the robbers tying hemp round her body, and setting fire to it, and dragging her about from place to place, by the hair of her head, calling on her, all the while, to tell them where her husband’s money was concealed; and also calling out on the prosecutor by name, to come and witness the state of his father and mother:—That these cruelties, together BOOK VI. Chap. 6. 1793.with the plunder of the house of Loharam and other ones adjacent, continued until between three and four o’clock in the morning, at which time the robbers departed; and that the prosecutor, on going up to his father and mother, found them most dreadfully mangled, but still alive; that his father expired about noon, and his mother, not till the following morning. The prisoners whom the prosecutor swore to have recognized, at the murder of his parents, in addition to Bulram Sirdar, Balka Sirdar, Nubboo Sirdar, and Kunkye Cupally, before mentioned, were;—Dacooa Sirdar, Shookoor Peada, Mudary Peada, Gallichurn Ghose, and Nubboo Sirdar; and he also specified Casinauth Bagdy, and Gudda Barooge.”
“Several witnesses on the part of the prosecution (inhabitants of the village) confirmed the circumstances related by the prosecutor.
“The court in consequence, sentenced the prisoners convicted, nine in number, to suffer death.”1
The other two cases are of a similar character. One of then relates to the robbery of an English gentleman whose house was plundered, who was himself loaded with indignity, and some of his servants murdered. “An accurate judgment,” says the secretary of the Indian government, “of the nature of the evils in question, may be formed from the foregoing documents.”
Of the extent of the mischief, this gentleman, however, informs us, that the government had no very accurate knowledge. We are left to judge of it, by the general declarations we receive respecting its prevalency, and respecting the state of alarm in which the people are universally held. From one declaration, to which there is no dissent, we may draw an estimate, beyond which no imaginable evil can easilyBOOK VI. Chap. 6. 1793. be found. “To the people of India there is no protection, either of persons or of property.”
It is impossible to suppose that the worst of all crimes should grow up to a height of unexampled atrocity, singly, and by itself. That state of things which affords encouragement to one species of delinquency is pretty sure to afford encouragement to other species of delinquency. The case of India confirms the general experience. Beside decoity, which involves a combination of the most dreadful crimes, “burglaries, effected by breaking through the walls of houses; murder from various motives; robberies attended with murder and manslaughter; perjury, and subornation of perjury, practised for the most atrocious purposes; are,” say the Select Committee, “not unfrequent in many parts of the country; but the Bengal provinces appear to be, more than any other, characterized by them.”1
Sir Henry Strachey says, “Since the year 1793, crimes of all kinds are increased; and I think most crimes are still increasing. The present increase of crimes may, perhaps, be doubtful; but no one, I think, can deny, that immediately after 1793, during five or six years, it was most manifest and rapid; and that no considerable diminution has taken place.”2
The Judge of circuit in the Bareilly division, in 1805, warns the government against supposing that the lists transmitted from the courts exhibit an accurate view of the state of delinquency; because the cases are extremely numerous which are never brought before the magistrates, from the negligence or connivance of the police officers, and the aversion of the BOOK VI. Chap. 6. 1793.people to draw upon themselves the burthen of a prosecution. Hence it happens that the less aggravated cases of robbery, with those of theft and fraud, “ are frequently perpetrated, and no records of them remain.” Hence the cases of homicide, which least admit of concealment, occupy the largest space in the criminal calendar. “The number of persons,” continues the Judge, “convicted of wilful murder is certainly great.—The murder of children, for the sake of their ornaments, is, I am sorry to say, common. So much so, that I submit whether it might not be adviseable to strike at the root of the evil, by taking away, if possible, the temptation to commit the act: I mean, adopting measures to prevent children from wearing gold and silver ornaments. For my own part, being convinced that, under the existing laws, we have no other means of putting an end to the frequent perpetration of this crime, I could wish to see the practice of adorning children with valuable trinkets, altogether prohibited.” He adds, “A want of tenderness and regard for life, is very general, I think, throughout the country.”1
In Sir Henry Strachey’s paper of answers to interrogatories, from which we have derived so much important information, he says, “Perjury has increased greatly; and is increasing.”2 In the report of the circuit Judge of the Patna division in 1802, it is stated, that “of the murders charged (at his late jail delivery) only a few, and of the robberies no more than one, really happened. The rest are merely fictitious crimes, brought forward to harass an opposing litigant, or revenge a quarrel. The criminal court is the weapon of revenge, to which the natives of this province resort, on all occasions. Men of the first rank in society feel no compunction at mutually accusingBOOK VI. Chap. 6. 1793. each other of the most heinous offences, and supporting the prosecution with the most barefaced perjuries. Nor does the detection of their falsehood create a blush.”1
Such a prevalence of the higher crimes implies a complete dissolution of morals. To this also, if it could remain doubtful, the same weight of testimonial evidence is applied. Sir Henry Strachey says, “The people are probably somewhat more licentious than formerly. Chicanery, subornation, fraud, and perjury, are certainly more common. Drunkenness, prostitution, indecorum, profligacy of manners, must increase, under a system, which, although it professes to administer the Mahomedan law, does not punish those immoralities.”
In having lessened the quantity of direct oppression which superiors exercised, as a sort of right, over inferiors, consisted, in the opinion of this judge, the whole of the benefit introduced by the English laws. And this, again, he thought, was counterbalanced by the loss of that protection which the superior was accustomed to yield to his dependants; and by exposure to the still more dreadful scourge of decoits, and other depredators and destroyers.2
The Judge and magistrate of Burdwan, in his answer to interrogatories in 1802, says, I am sorry that of the moral character of the inhabitants, I cannot report favourably; or give it, as my opinion, that the British system has tended to improve either the Mahomedan or Hindu moral character. Certain it is, that much profligacy, vice, and depravity, are to be found amongst the higher class: and the crimes, committed by the lower, will, I think, be found more prevailing, BOOK VI. Chap. 6. 1793.and in greater number, than under the Mahomedan jurisprudence.”1
The magistrates of the twenty-four pergunnahs, on the same occasion, say, “We are sorry that we cannot make any favourable report respecting the moral character of the inhabitants of the districts subject to our jurisdiction. The lower classes are in general profligate, and depraved. The moral duties are little attended to by the higher ones. The system, introduced by the British government, for the administration of the law, and for the conduct of the internal administration of the country, does not, therefore, appear to have improved the moral character of its inhabitants. The use of spirituous liquors, debauchery, and numberless other vices, which formerly met with the severest checks and punishments, are now practised, with impunity, amongst all classes.”2
Of this hideous state of society, the causes are now to be explored. That the root was laid in the corruptive operation of the despotism to which in all ages the people had been subject, admits of no dispute, and stands in need of no explanation. The important inquiry to which we are summoned is; why the British regulations, intended for the abatement of delinquency, had been so unfortunate as to increase rather than diminish it.
That penal law in the hands of the English has failed so completely of answering its end, is to be ascribed in a great degree to the infirmities and vices of the law itself. The qualities wherein consist the virtues of a system of law appear to have been little understood in time past by British legislators. Clearness, certainty, promptitude, cheapness, with penalties nicely adapted to the circumstances of each species of delinquency; these are the qualities onBOOK VI. Chap. 6. 1793. which the efficacy of a system of penal law depends; and in all these, without one exception, the penal law set up by the English in India is defective to a degree that never was surpassed, and very rarely has been equalled. Its failure, therefore, and the misery of the people who must depend upon it for protection, are not a subject for surprise.
It is a sort of a mixture of the Mahomedan and English systems, and so contrived as to combine the principal vices of both. With the exception of a change in certain modes of punishment, revolting to English minds, the Mahomedan code, which in penal matters had been exclusively followed by the Mogul government, was still retained. It was the characteristic of the Mahomedan law, as it is of the law of all rude nations, to be unwritten. The standard was the Koran, in which nothing beyond a few vague precepts could be found. To this were added the commentaries of the doctors, of which some had attained the rank of authorities. The vagueness of the commentaries corresponded with the vagueness of the original; and no distinct legislative definition existed. On every occasion, therefore, requiring a decision, the expounder of the law was called upon, for what? Not to point out a passage of the code exclusively containing the appropriate point of law. No such passage existed. What he did, or pretended to do, was, from a general view of what had been taught or decided by preceding doctors, to frame an inference for the particular case of the moment. His business was, not simply to declare, but to make the law, to make a separate law for an individual case, every time that a decision was required; to make it, and under no other restriction than that of some obligation to make the result bear some resemblance to former practice. BOOK VI. Chap. 6. 1793.In a law existing in this barbarous state, in which there was so little of any thing fixed or certain, a wide field was commonly assigned to the arbitrary will of the judge. All uncertainties in the law operate to the encouragement of crime; because the criminal interprets them, and with an estimate far beyond their value, in his own favour.
With a law of this description to administer, a procedure resembling that of the regular halls or rather closets of judicature in England was adopted for its administration. The English form of practice, or course of procedure, consists of so many operations and ceremonies, to which, however frivolous, or obstructive to the course of justice, the most minute obedience is rigidly exacted, that the administration of English law abounds with delay, is loaded with expense, and paralysed by uncertainty. From only one of the vices of the Mahomedan system, the corruption of the judges, were the people of India now delivered; but they were visited with another, which appears to be to them a much more dreadful calamity, a complicated, tedious, expensive course of procedure, which to a great degree annihilates all the advantages of law.
The evidence we have on this important subject, is the testimony of those of the Company’s servants on whom the business of judicature devolves: some of whom, if we may judge by those of their reports which the public have been permitted to peruse, are to a singular degree qualified for that important trust.
In answer to the following interrogatory; “Are you of opinion that the Mahomedan criminal law, with the alterations of that law made by the British government, is administered with two much lenity, or too much severity; and what do you suppose to be the consequences produced by the operation of theBOOK VI. Chap. 6. 1793. spirit, in which the criminal law is in your opinion administered;” “We are of opinion,” said the judges of circuit of the Moorshedabad division in 1802, “that, from the discretionary mode in which the Mahomedan criminal law, with the alterations of that law made by the British government, is administered, the administration of it admits both of too much lenity, and too much severity; at any rate of too much uncertainty. An offence, which to one law officer may appear sufficiently punished by a month’s imprisonment, shall from another law officer incur a sentence of three or more years. Even in the heinous crime of gang robbery, our records will show sometimes a sentence of fourteen years transportation, and sometimes a sentence of two years confinement. The consequences which we suppose to be produced by the operation of this spirit in which the criminal law is in our opinion administered, are contempt of the law itself, and encouragement to offenders.”1
By Sir Henry Strachey, in his report in the same year as judge and magistrate of Midnapore, it is said, “I may here take the liberty to mention a few circumstances which have fallen under my observation, as operating to obstruct the conviction of delinquents under the present system. I think the delay which occurs between the apprehension and the trial is too great. The accused have time and opportunity to fabricate a defence; and very little money will procure false witnesses to suppert it. The extreme length and intricacy of trials render the full and complete investigation of every case impossible.”2
The magistrates of the twenty-four pergunnahs in BOOK VI. Chap. 6. 1793.1802 reported; “The delay attending the administration of criminal justice, and the length of time that elapses before criminal prosecutions are brought to a conclusion, is one of the causes to which the frequent commission of crimes in general, and that of decoity in particular, may, we think, be in a great measure attributed. The trouble, loss of time, and expense, that attends a criminal prosecution on the present system, is in our opinion a serious evil, and not only induces many who have been robbed to put up with the loss they sustain, rather than apply to the police officers for redress, but prevents numbers from coming forward with informations that would be highly beneficial to the community, and would, we have no doubt, in numberless instances be preferred, were the administration of justice more prompt and speedy that at present. The consequence of delay is, that numbers of criminals of the most daring description, against whom, when committed for trial, there is the most full and complete evidence, escape, and are again let loose on society;” owing to the death, removal, loss of memory, or mendacity of the witnesses; a mendacity often purchased, often the fruit of intimidation.1
“I am by no means sure,” says the Judge of the Calcutta Court of Circuit, the enlightened Sir Henry Strachey in 1803, “of the necessity or propriety of increasing the severity of punishment. Before I can form a judgment of the efficacy of such remedies, I must be certain that the punishment reaches the offenders; at present the punishment does not reach them; they elude conviction; they elude apprehension. We cannot say that men become decoits, because the punishments are too lenient; they becomeBOOK VI. Chap. 6. 1793. so, because their chance of escaping altogether is so good.”1
The report in 1805 of the Judge of circuit in the Bareilly division says, “Attendance on the court, whether as a prosecutor, or witness, is generally regarded as a heavy misfortune; to avoid which, many leave their homes, and submit to infinite inconvenience and vexation; and many more, I presume, pay handsomely to the Nazir or his people, for permission to keep out of the way. Hence crimes are perpetrated, and no records remain of them.—The delay, and expense, of prosecuting, are intolerable to the lower orders.”2
A system of law, marked by so many infirmities, may, in a country like England, where crimes are easily suppressed, and where the sentiments and manners of the people accomplish more than the law, afford an appearance of efficacy, and get the credit of much of that order which it does not produce; but in a country like India, where crimes are difficult to repress, and where the law receives little aid from the sentiments and manners of the people, a far more perfect system is required.
A system of law, which would really afford the benefits of law to the Indian people, would confer upon them unspeakable benefits. It is perhaps the only great political blessing which they are as yet capable of receiving. But the arbitrary will of a BOOK VI. Chap. 6. 1793.master, which though it often cuts down the innocent with the guilty, yet prohibits all crimes but his own, is preferable to a mere mockery of law, which lays the innocent man at the mercy of every depredator.
Of the prevalence of crime in India, the first of the causes, therefore, is found, in the vices and defects of the law. The second may be traced to those of the police; by the imperfections of which, because more superficial, and obvious to ordinary eyes, the attention of the Company’s servants, and of the Committee of the House of Commons, appears to have been more peculiarly engaged. The main purpose of a system of police, is to serve as an instrument to the courts of justice; providing that no offence shall be committed without the prompt subjection of the offender to the course of law. The English system appears to fail in accomplishing this important end, by two defects. In the first place, the instruments are too feeble. In the next place, they are ill adapted to the end.
“The establishment of an efficient police,” say the Select Committee of the House of Commons, “though an object of the first importance, appears to be a part of the new internal arrangements, in which the endeavours of the supreme government have been the least successful. With respect to the darogahs, or head police officers, who under the new system have taken place of the Tannahdars, it is observed of them, that they are not less corrupt than the Tannahdars, their predecessors; and that themselves, and the inferior officers acting under them, with as much inclination to do evil, have less ability to do good, than the Zemindary servants, employed before them. The darogah, placed in a division of the country, comprehending four hundred square miles, is, with fifteen, or twenty armed men, found to be incompetentBOOK VI. Chap. 6. 1793. to the protection of the inhabitants.”1
If the agents of police are greatly too few, the obvious remedy is to add to their number. The answer to that exhortation, however, is unhappily the same as that for the multiplication of the courts of justice. The finances of the Company will not endure the expense. In other words, the revenue of the country, instead of being applied to its only legitimate end, the protection of the people, is disposed of in a different way.
Not only are the agents of police defective in point of number, but adequate means are not employed to make them discharge the duties of their office. So far is this from being done, that the darogahs, and their people, add to the very evils which they are intented to suppress. By the Judge of Midnapore, in 1802, we are told, “The darogahs, I believe it is generally confessed, do not perform the duty that was expected. They are clearly either unable, or unwilling. Their insufficiency consists, I think, in a general neglect of duty, in petty rogueries, in a want of respectability, in being destitute of that energy and activity, and that delicate sensibility to character, which ought to characterize a police officer. In the duties of his office, a darogah is hardly occupied half an hour a day: and he often becomes negligent, indolent, and, in the end, corrupt. His dishonesty consists in taking bribes from poor people who have petty foujdarry suits, in conniving at the absconding of persons summoned through him, in harassing ryots with threats, or pretended complaints, creating vexatious delays in settling disputes, or preventing their being settled, and chiefly in deceiving the poor BOOK VI. Chap. 6. 1793.and ignorant, with whom he has to deal. The avowed allowances of a police darogah are not sufficiently liberal to render the office worthy the acceptance of men who are fit to perform the duty.”1
The secretary of government says; “The darogahs of police seldom, if ever, possess any previous instruction as to the nature and extent of their duties, nor any habits of life calculated to enable them to perform those duties with effect. A brahmin, a sirdar, a moonshy, or even a menial servant, is, each in his turn, a candidate for this situation, of their fitness for which it is easy to judge. Their agency, even in furnishing information, a duty which requires no particular exertions or capacity is totally ineffectual. Happy, however, would it be if the defects already noticed were the greatest to be found in the character of the police darogahs. The vices, which render them a pest to the country, are, their avarice, and addiction to every species of extortion.”2
The description of the following scene of iniquity, in which the police agents are the principal actors, is necessary to convey a just idea of the state of this branch of the government. The Judge of circuit, in the Calcutta division, in 1810, in a paper addressed to the Judge and magistrate of the Zillah, says “The practice, so nefarious and so prevalent, of extorting and fabricating confessions, requires your most serious attention. I remarked, with much concern, that, in every case of decoity brought before me, the proof rested on a written confession, given in evidence at the trial; and regret to add, that all those confessions bear the marks of fabrication. In one of these cases (No. 7 of your calendar), a prisoner, who was perfectly innocent, confirmed, before the magistrate, underBOOK VI. Chap. 6. 1793. the influence of improper means previously made use of towards him, a confession before a police darogah, which was proved on the trial to be false; and which had, in fact, been extorted by intimidation and violence. An erroneous idea prevails, that a confession is the strongest proof of guilt. This false notion, perhaps, first gave rise to the custom of fabricating them; and the practice appears to have increased, till it has become general and systematic. It would be endless entering into a detail of the different modes in which confessions are fabricated and proved. The usual course appears to be first, to apprehend as many people as caprice may dictate, and then to select from the number those individuals who are to confess, and determine on the purport of their confessions. The preliminaries being thus arranged, the victims are made over to the subordinate agents or instruments of police, to be dealt with according to circumstances; and the rest are discharged. It sometimes happens that they meet with a man whom they are able to deceive, by assurances of immediate pardon, and false promises of future favour and indulgence. In such case, he is usually told, that by signing a paper, prepared by the buckshee for that purpose, or repeating before witnesses what he is instructed to say, he will not only escape hanging, or, at least, perpetual imprisonment, but become one of the chosen of the police, and make his fortune as a goyendah; that all he has to do, is to pretend that he was concerned in the decoity, and say, that the gang was composed of particular individuals who are named to him, and leave the rest to the darogah. In short, the alternative is offered him, either of making a friend, or an enemy of the police; either of suffering ignominous death through their power, or of raising BOOK VI. Chap. 6. 1793.himself to a post of honorable ambition and profit by their favour. When these means fail, they have recourse to compulsion. In this event the prisoners are taken out singly, at night; and subjected to every species of maltreatment, till they consent to subscribe before witnesses, to the contents of a confession, drawn up for their signature by the buckshee; or to learn it by heart, and repeat it in their presense. When the prisoner is thus prepared, if there appears no danger of his retracting before morning, he is left at peace for a few hours; but if any apprehension of that sort is entertained, a burkundaaz is sent for three or four people of the village, to witness the confession instantly, and they are roused from their sleep, at all hours of the night for that purpose. It is to be observed, however, that the sending for impartial witnesses does not often occur, except when the darogah has not sufficient weight or talent to keep his place, and at the same time set appearances at defence. A darogah who is sure of his post, will, with the utmost impudence, send in a confession witnessed only by a few pykes, or other police dependants, who, were, perhaps, the very instruments by whose means it was extorted.” The fabrication of evidence in general, and the subornation of perjury for that purpose, is declared by the same indubitable authority to have become “a prevailing practice with the agents of police.”1
When such are the deeds of the very men by whom the crimes of others are to be suppressed, it is easy to judge of the sort of protection which the British government has succeeded in providing for the people of India.
The Secretary, Mr. Dowdeswell, complains, that powers, far too great, are entrusted in the hands ofBOOK VI. Chap. 6. 1793. those men. They have not only the executive powers of a constable and sheriff’s officer, but those united to them of a justice of the peace: they have the power of receiving charges and information without limit; the power of receiving them on oath, or dispensing with the oath, a power of great moment, considering the prejudices of the natives with regard to an oath; the power of proceeding by summons or arrest, at discretion; the power of referring or not referring the determination to the magistrate; of fixing the amount of bail; of making, or, if they please, causing to be made, a local inquiry upon the recent commission of any robbery or violent offence; and, finally, of apprehending and sending to the magistrates all persons under the vague denomination of “vagrants and suspected persons:” “powers,” adds Mr. Dowdeswell, “which never have been confided to any subordinate peace officers in England; and which, indeed, would not be tolerated for a moment in that country: powers, the interposition of which, by the hands of the Indian darogahs, are attended with intolerable vexations.”1
The means, employed for accomplishing the ends of a police, have, therefore, been ignorantly devised. “It is now,” say the Committee of the House of Commons, “unequivocally acknowledged on the proceedings of government, that the existing system of police has entirely failed in its object.“2 The Judge BOOK VI. Chap. 6. 1793.of Circuit, in the Rajeshahy division, in 1808, with indignation says: “The present wretched, mechanical, inefficient system of police, is a mere mockery.”1
The extraordinary imperfection of the system of police, I rank as the second of the causes of the great prevalence of crime, and the insecurity of persons and property in Bengal.
The next of these causes is an infirmity which adheres to governments in general, to many of them in a greater degree than the Anglo-Indian government; the obstinate determination to believe that every thing which they do is excellent; and, of course, that every institution which they set up must of necessity accomplish its end. This most pernicious propensity appears to have long completely blinded the Indian government to the deplorable imperfections attaching upon, and characterizing, every department of that institution of government which was set up by the regulations of 1793. The imperfections of even the system of police, those which were the most obvious to ordinary eyes, they not only continued determined not to see; but, such was the pernicious influence of their authority, that individuals were deterred either from allowing themselves to believe, or, at any rate, from the important duty of making known, the vices of the system. “What,” says the Judge of Circuit, in the Benares division, in 1808, after a long display of the evils to which those horrid vices were giving birth, “may be thought of the weight of the preceding reasoning, I know not. A very few years back, I should have been afraid, in advancing the arguments which I have offered, of exposing myself to the imputation of singularity. I have now the satisfaction to find that some of my conclusions, at least, are sanctioned by the highest authority. TheBOOK VI. Chap. 6. 1793. preamble to Regulation Twelfth, of 1807, declares, that the police establishments in the provinces, those establishments on which we have relied for sixteen years, are inefficient.”1 The Committee of the House of Commons, with some indignation, remark, that, “though the letters from the Bengal government, down to April, 1806, represent the commission of crimes, particularly perjury, to be increasing rather than the contrary; there is nothing said to excite any particular apprehension for the security of person and property enjoyed by the natives under the British government, or to create any doubt in regard to the new system of police having secured to the natives the benefits which were intended for them by its introduction.”2
Another cause, a natural consequence of the former, is, the temptation under which the servants of the state are placed, to represent in a flattering light the proceedings of government; to keep back, or explain away, the disagreeable consequences; to exaggerate those that are pleasant; and, very often, to suppose and describe such as never exist. Governments are thus deceived, and remain in ignorance of what above all things it imports them to know; the extent to which the institutions of government fall short of accomplishing the ends for the sake of which they exist. What is stated by Mr. Dowdeswell is worthy of particular attention, and indelible remembrance; That this unhappy propensity, which is a power of such extensive and such pernicious operation in all governments, is the foremost among the causes of the disgraceful state of Anglo-India. “The principalBOOK VI. Chap. 6. 1793.cause,” says the Secretary, in his instructive report on the police of Bengal, “why the measures, hitherto adopted for the protection of the people against robbery by open violence, have been ineffectual, is, the very imperfect information which government, and the principal authorities under government, possessed, respecting the actual state of the police.—The defect here noticed,” he continues, “may arise, either from the very imperfect information which the local magistrates themselves possess respecting the state of the police, or from an ill-judged, but not an unnatural, solicitude, to represent the districts in the most favourable state possible.”1 It is also in the highest degree worthy of being pointed out to general attention, that the Select Committee of the House of Commons, appointed in 1810 to inquire into the affairs of India, have selected this prevailing vice in almost all governments, as the object of their particular reprobation. “Your Committee,” they tell the House, “must here express their opinion of the dangerous tendency of indulgence in the disposition alluded to; of representing districts, or things, to be in a more favorable state than they really are: As this may lead; First, to a postponement of the communication of unpleasant circumstances; Next, to the suppression of information; And finally, to the misrepresentation of facts.”2 Of one thing, however, we may remain assured, as of a law of nature, that so long as the wisdom and virtue of governments are in too low a state to recognize the indication of defects as the most useful information which it is possible for them to receive; the dependants of government, who hence find it their interest to report what is agreeable, will be sure to mislead.BOOK VI. Chap. 6. 1793. A sufficient antidote would exist, in a free press, under the unsparing operation of which governments would remain ignorant of none of their defects. Solid objections may indeed be started to the institution as yet of a free press in India, though objections of much less weight than is generally imagined. But the existence of a free press, in any state of society, or under any circumstances, it is the constant, strenuous, and wicked endeavor of almost all governments, utterly to prevent.
The parliamentary committee carry their investigation to the highest source; they accuse the Indian government, itself, of acting under the influence of this destructive vice; and, in its representations to the authorities at home, of describing things in India as in a far better situation than they really are. From general knowledge, the experienced mind would easily infer the existence of this deceptive propensity, and its operation, to a great extent. It is necessary to have studied particularly the documents of our Indian history, to know with what unusual strength it operates in the breast of almost every man who has been connected with the government of India; in a word, to have any conception to what an extent the British people have been deluded, and continue to be deluded, with flattering accounts of what is described as “their empire in India.” In the whole correspondence of the Bengal government with the Court of Directors, down to April, 1806, the Committee remark, that not a syllable is found expressive of any failure in the system of police, though from the year 1801, “the reports of the circuit judges, at the conclusion of each session, evinced the prevalence of gang robbery, not only in a degree sufficient BOOK VI. Chap. 6. 1793.to attract the notice of the government, but to call forth its endeavors to suppress it.”1
Another cause of the disorders of India, a cause too of which it is highly important to convey a just idea, is the overweening estimate, which our countrymen are prone to make, not only of their own political contrivances in India, but of the institutions of their own country in the mass. Under the influence of a vulgar infirmity, That Self must be excellent, and every thing which affects the pride of Self must have surpassing excellence, English institutions, and English practices, have been generally set up as a standard, by conformity or disconformities with which, the excellence or defect of every thing in the world was to be determined. With moderate taxes, under a government which protects from foreign violence, the only thing necessary for the happiness and the rapid improvement of the people of India, is a good administration of justice. But to this great object the circumstances of the people, and the moral habits left in their minds by superstition and despotism, oppose a formidable resistance. To afford in any tolerable degree the protection of law to the people of India is a far more difficult process than it is in England; and for its accomplishment, a far more perfect system of legal and judicial provisions, than what is witnessed in England, is indispensably required. Of this the rulers in India have not attained the slightest conception; and hence the many-ill contrived measures to which they have had recourse.
Of part of the difficulties under which the administration of justice labours in India, some conception may be formed, from the description which has already been given of the agents of police. The state of theBOOK VI. Chap. 6. 1793. people is such, that trustworthy instruments cannot be found. In a more favorable state of the human mind, that large portion of the field of action which it is impossible to reach with the terrors of law, is protected by the sentiments of the people themselves: they distribute towards individuals their favour and abhorrence, in proportion as those individuals observe or violate the general rules on the observance of which the happiness of society depends; and of so much importance to every man are the sentiments with which he is regarded by those among whom he lives, that without some share of their good opinion, life itself becomes a burthen. In India there is no moral character. Sympathy and antipathy are distributed by religious, not by moral judgment. If a man is of a certain caste, and has committed no transgression of those ceremonies by which religious defilement or degradation is incurred, he experiences little change in the sentiments of his countrymen, on account of moral purity, or pollution. In employing the natives of India, the government can, therefore, never reckon upon good conduct, except when it has made provision for the immediate detection and punishment of the offender.
The proneness of the natives to mendacity and perjury, renders the evidence of judicial facts in India so weak and doubtful, as extremely to increase the difficulties of judication. The intelligent Judge of Circuit, in the Rajeshahy division, in 1808, thus describes the state of evidence in the Indian courts. “Every day’s experience, and reflection on the nature of our courts, and the minds and manners of the natives, serve to increase my doubts, about our capacity to discover truth among them. It appears to me, that there is a very great deal of perjury, of many different BOOK VI. Chap. 6. 1793.shades, in our judicial proceedings; and that many common rules of evidence would here be in applicable and absurd. Even the honest men, as well as the rogues are perjured. The most simple, and the most cunning, alike, make assertions that are incredible, or that are certainly false. If the prosecutor, in cases of decoity, was always to be disbelieved because there was perjury, scarce a decoity would be convicted. By cross-examination, you may draw an honest witness into as many absurdities and contradictions as you please. It is not easy to detect the persons who come forward as eye-witnesses, in cases of decoity. Their story is all true—but one point; the identity of the persons whom they accuse: and how can you discover whether this is true or false? Some witnesses are loquacious, some taciturn; some frigid, some over zealous; some willing, some unwilling; some bold, some timid, some scrupulous: some come to give false evidence, in favour of a friend, or master; some to ruin an enemy; and the signs of the different modes that disguise truth are so very equivocal, and often so unintelligible, that nothing can be depended on. There is not one witness in a dozen on whom you can rely for a purely true story. It has very often happened, that a story, which, by attending only to the plain direct course of things, I believed to be true, has, by examining into matters apparently connected in a very distant degree with the case, turned out to be entirely false. I am afraid that the evidence of witnesses in our courts is, for the most part an instrument in the hands of men: and not an independent, untouched source of truth.”1
“In the course of trials,” says Sir Henry Strachey, “the guilty very often, according to the best of my observation, escape conviction. Sometimes, an atrociousBOOK VI. Chap. 6. 1793. robbery or murder is sworn to, and in all appearance clearly established by the evidence on the part of the prosecutors; but when we come to the defence, an alibi is set up; and though we are inclined to disbelieve it, if two or three witnesses swear consistently to such alibi, and elude every attempt to catch them in prevarication or contradiction, we are thrown into doubt, and the prisoners escape. Very frequently the witnesses on the part of the prosecution swear to facts in themselves utterly incredible, for the purpose of fully convicting the accused; when, if they had simply stated what they saw and knew, their testimony would have been sufficient.”1
In another place he declares; “A rich man can seldom be convicted of a crime at a goal-delivery. If committed on the strongest positive testimony before the magistrate, he without difficulty brings twenty witnesses on his trial to swear an alibi, or any thing else, that may suit his case; or he can bribe the prosecutor, or his material witnesses. He has besides a very good chance of escaping by the mere contradictions of the witnesses against him; particularly if what they have to depose to is long or intricate, or happened at a distant period; or was seen and heard by many witnesses of different descriptions and characters; or if many facts, names, and dates, are to be recollected. No falsehood is too extravagant or audacious to be advanced before the Court of Circuit. No case, at least no rich man’s case, is too desperate for a defence, supported by counter-evidence; and if once doubts are raised, no matter of what kind, the object of the accused is gained, and he is secure. Perjury is BOOK VI. Chap. 6. 1793.extremely common, and though it occurs much more frequently on the part of the accused than of the prosecutor, yet I have known several instances of conspiracies and false complaints supported by perjury. The judge who has once had experience of a case of this kind is soon plunged into doubt and perplexity, continually awake to the possibility of the witnesses against the accused being forsworn: and as he of course leans to the favourable side, the consequence must be, that the guilty frequently escape.”1
When ever you fail to a certain extent in assuring protection to the innocent, and punishment to the guilty, the criminal is enabled to employ the great instruments of government, punishment, and reward, in his own defence. Such is the military strength of the British government in Bengal, that it could exterminate all the inhabitants with the utmost ease; such at the same time is its civil weakness, that it is unable to save the community from running into that extreme disorder, where the villain is more powerful to intimidate than the government to protect. The judge of circuit of the Rajeshahy division in 1808, says: “The decoits know much better than we how to preserve their power. They have with great success established a respect for their order, by speedy, certain, and severe punishments, and by judicious arrangements for removing obstacles, and for facilitating the executions of their plans. There are two grand points for the dacoits to effect; first, to prevent apprehension; second, to prevent conviction. For the first, they bribe the Zemindary and police officers. For the second, they torture and murder the informers, prosecutors, and witnesses, who appear against them. The progress of this system is dreadful: TheBOOK VI. Chap. 6. 1793. decoits become every thing; and the police, and the criminal judicature, nothing.”1
“This we know,” says the same enligtened Judge in another passage, “that a sirdar decoit has generally the means of saving himself from conviction: and that, although all the world say that he is a notorious robber and murderer, not an individual can be found who will give evidence against him. This is a dreadful state of things: and so it must remain, till confidence is restored to the people by removing their well grounded fears, by extirpating the sirdars, and giving a real efficiency and vigour to the police.”2
“The terror of decoits among the ryots,” says Sir Henry Strachey, “is excessive. Persons who have families and property deem it extremely rash and dangerous to prosecute, or to appear as witnesses against men of such desperate character as the decoits of this country. Indeed it is with the utmost difficulty they can be prevailed upon to come forward, even in cases where they have received personal injury, and where they have not to speak to the persons of the prisoners, but merely to identify the property found in their possession.”3
Such is the nature, such the extent, and such the causes of the evil. The remedies surely constitute an important object of inquiry. The government attempted to oppose the torrent by changes in the rules of police, and by adding to the severity of punishment. BOOK VI. Chap. 6. 1793.Under these expedients, enormities continued to increase till 1807, when a more efficacious remedy was thought to be required. The Zemindars, who formerly exercised a power almost despotic over the districts consigned to their care, and who maintained a large establishment of armed men, with a commission for the suppression of crimes, were enabled, as often as they had activity and good will, to suppress by arbitrary execution all violent offences but their own. One robber in a district was better than a multitude. But Lord Cornwallis, impressed with the evidence of the abominable use made of this power by the Zemindars, in exercising oppression on the people submitted to their jurisdiction, resolved to deprive them of all exercise of any of the powers of government; and laid it down as a rule, that the union of the functions of revenue with those of police or judicature, was a fundamental error, from which nothing but misgovernment could ensue. Notwithstanding this, the rulers of 1807, with that sort of empirical impulse, by which the vulgar tribe of rulers are usually conducted, took up the notion, that if the Zemindars had once preserved the country from decoits, the Zemindars truly might do so again. In spite of the grand rule of Lord Cornwallis, the Zemindars, farmers of land, and others of the principal inhabitants, received the title of aumeens of police, and were vested with the same authority as the darogahs for the apprehension of offenders, but without the judicial powers entrusted to the darogah in the case of petty offences and disputes.
Not only was this expedient for the suppression of crimes attended with no good effects; it was attended with so many of a contrary description, that in 1810 it was abolished. Other expedients in the mean time had been invented and tried. In 1808, a superintendent of police was appointed; whose labours wereBOOK VI. Chap. 6. 1793. expected to have the effect of concentrating information, and giving unity and combination to the efforts of the magistrates in the separate districts. A regular establishment was also organized of police spies called goyendas, with a species of superintendents called girdawars who had in some degree been employed from 1792. The office of the goyendas was to point out the robbers: that of the girdawars to apprehend them.1
So imperfectly were those means adapted to the end in view, that in a dispatch of the Governor-General, under date the 29th of May, 1810, the extent of the mischief is thus described: “The evidence lately adduced, exclusive of a multiplicity of other proofs, establishes beyond a question, the commission of robberies, murder, and the most atrocious deliberate cruelties: in a word an aggregate of the most atrocious crimes. Nor let it be supposed, that these offences were of rare occurrence; or confined to particular districts. They were committed, with few exceptions, and with slight modifications of atrocity, in every part of Bengal.”2
The inconvenience which attended the employment of goyendas was of the same nature with that which attended the employment of darogahs: instead of protectors, they themselves became the plunderers and murderers of the people. Sir Henry Strachey informs us, that “the people are harassed by the vexatious visits and outrage, and the plunder of goyendas and girdawars; who, constantly, when supported by the least colour of authority from the magistrate, intimidate, extort, suborn, and rob, under pretence of bringing offenders to justice.”3
To the villainy of the police agents is attached a considerable danger, lest, being employed by the magistrates, and necessary to their functions, the magistrates should contract a reluctance to believe in their guilt. It is in evidence, that the reality of this evil is but too frequently experienced. The Judge of circuit, reporting on the state of the twenty-four pergunnahs in 1810, says: “Several petitions were presented to me in the course of the session. Those of the greatest public importance complain of the rapacity, oppression, and gross and daring acts of illegal violence and rapine committed by goyendas; and strong disinclination evinced on the part of the magistrate to redress grievances of that description.”2
To remedy the defects of the provision made by Lord Cornwallis, for the administration of penal justice, such were the supplemental measures employed till 1810, and such their effects. It is proper also to consider what proposals were made of other means for the attainment of the same end.
One thing recommended was, to re-invest the Zemindars with powers of police; and among the interrogatories circulated by government in 1801, the opinion of the judges was asked, on “the expediency BOOK VI. Chap. 6. 1793.of granting to Zemindars, farmers, and other persons of character, commissions empowering them to act as justices of the peace.” Among the most intelligent of the Company’s servants, one opinion, on this subject, seems alone to exist. “I am persuaded,” says the magistrate of Burdwan, “that to vest the Zemindars and farmers of this district with the powers proposed, would not only prove nugatory for the objects intended, but be highly detrimental to the country, and destructive of the peace of the inhabitants. Few of the Zemindars and farmers, of any respectability, reside on their estates and farms. Allow them to exercise a power equal to the purposes, and to vest with it, by delegation, their agents or under farmers, the worst and most mischievous consequences are to be apprehended from their abuse of it.”1 On the same occasion, the magistrates of the twenty-four pergunnahs say, “From the general character of the Zemindars, farmers, and other inhabitants of these districts, we do not think that it would be adviseable to vest any of them with the powers of justices of the peace. On the contrary, we are of opinion, that such a measure, so far from being in any way beneficial to the police of the district, would be a source of great oppression to the lower class of the inhabitants, and of innumerable complaints to the magistrate.”2
They add, “We have reason to believe, though it is difficult to establish proof against them, that the Zemindars, not only, in many instances, encourage and harbour decoits, but frequently partake of the property plundered by them. The chokedars and pykes employed by them are concerned in almost every decoity committed in the districts subject to our jurisdiction.”3
To the same purport, the Judge of circuit in theBOOK VI. Chap. 6. 1793. Rajeshahy division says, in 1808: “My informants attributed the success of the decoits to the same cause that every body else does; namely, the protection given them by the Zemindars and police officers, and other people of power and influence in the country. Every thing I see, and hear, and read on this subject, serves to convince me of the truth of this statement.”1
Sir Henry Strachey, as usual, reasons with much intelligence upon this subject. “It is extremely difficult,” he says, in his reply to the same interrogatory, “I may, I believe, say it is not possible to arrange an effectual plan of association and co-operation, among the higher orders, for purposes of police, or for any other purpose. We have few large towns; no societies exercising or capable of exercising municipal authority.—There are no gentlemen, in whose honour and probity, in whose spirit and activity, government can repose confidence—There exists not, between the common people and the rulers, a middle order, who feel a common interest in the prosperity of the state; who love their countrymen, who respect their rulers, or are by them respected; who either could, or, if they could, would, even in a case of the greatest exigency, exert themselves heartily and effectually, each in his own sphere, for the public good. Such a set of men in the society is here unknown. Government is unable to direct, or in any way to make use of, the power of the individuals composing the community. Hence our extreme ignorance of all that passess; our complete inability to detect and apprehend offenders; to explain to the public what we wish should be known; and persuade them what should be done. Hence the long continuance of enormous BOOK VI. Chap. 6. 1793.abuses, without its being possible for government, or for the magistrate, to prevent or to discover them.”1
“It should,” he says in another place, “be the study of government, in my opinion, to form, if possible, a body of gentry, such as exists in other countries; an intermediate order, between the governors and the governed, to whom the one might look down, and the other might look up. At present, no such order exists. Most of the men who once possessed rank and wealth, are gone to ruin. The men of property who do exist are, for the most part, such as have lately risen. That the magistrate can maintain the peace over a million or more of persons, without the help of a considerable number whose interest or sense of duty should induce them to assist him, is plainly impossible.”2
The Judge of circuit in the Benares division, in 1808, descants with great warmth upon the same topic; the extreme difficulty of maintaining order in any country, without the assistance of a superior class of inhabitants incorporated with the people, and possessing that influence, which superior property, and education, confer, over others deprived of those advantages. “In maintaining this opinion I may,” says he, “unless I greatly deceive myself, appeal to the general practice of almost all nations, originating, doubtless, in circumstances and feelings common to all mankind. The natural mode of managing men is to employ the agency of those, whom, from the relation in which they stand to them, they regard with respect and confidence. Accordingly all governments seem to have made the authority of these native leaders the basis of their police: and any hired police establishment which they maintain are not intendedBOOK VI. Chap. 6. 1793. to supersede the native police, but to superintend, watch, and aid its efforts. To take an example with which we are all familiar. In our own country we all know what services the society contributes to its own protection. We know how much vigour is conferred on its police, by the support which it receives from native gentry, from respectable landholders, from the corporations in towns, and from substantial persons of the middle class in the villages. We can form some conception of the mischief which would ensue, if that support should be withdrawn, and an attempt made to compensate it by positive laws and artificial institutions.”
Such is the extreme difficulty of distributing justice to a people without the aid of the people themselves! Such, at the same time, is the utter impractibility, under the present education, circumstances, and character, of the people of India, of deriving from them the aid which is required! Without a tolerable administration of justice, however, which the people of India are so far from enjoying, every man will acknowledge, that all attempts to improve either their circumstances or their character, must be attended with disappointment. What then is the inference? Are the government and the people, to go on, for ever, in their present deplorable situation; the people suffering all the evils of a state of anarchy; the government struggling, with eagerness to help them, but in vain?
If it were possible for the English government to learn wisdom by experience; which governments rarely do; it might here, at last, see, with regret, some of the effects of that illiberal, cowardly, and short-sighted policy, under which it has taken the most solicitous precautions to prevent the settlement BOOK VI. Chap. 6. 1793.of Englishmen in India; trembling, forsooth, lest Englishmen, if allowed to settle in India, should detest and cast off its yoke!1 The most experienced persons in the government of India describe, what to them appears the difficulty, almost or altogether insuperable, of affording protection either to person or property in that country, without the assistance of persons of the requisite moral and intellectual qualifications, rooted in the country, and distributed over it in every part. They unite in declaring that there is no class in India who possess these qualifications; that the powers necessary for an efficient police cannot be entrusted to the Zemindars, without ensuring all the evils of a gross and barbarous despotism. And they speak with admiration of the assistance rendered to government by the gentlemen distributed in every part of England. Is it possible to avoid seeing; and seeing not to acknowledge, the inestimable service which might have been derived, in this great exigency, from a body of English gentlemen, who, if they had been encouraged to settle, as owners of land, and as manufacturers and merchants, would at this time have been distributed in great numbers in India? Not only would they have possessed the requisite moral and intellectual qualifications, a thing of inestimable value; but they would have possessed other advantages of the highest importance.
The representation of Lord Teignmouth is lamentably true, That the civil servants of the Company, enclosed in government offices, from the time of their arrival in India, have neither leisure nor opportunity to become acquainted with the people;BOOK VI. Chap. 6. 1793. and that the periods of their residence, from their being in a state of perpetual change, come to an end, before they are able to acquire either local knowledge or experience.1 Among the circumstances to which the best of the Company’s servants ascribe their deplorable inability to afford protection to the people, their own ignorance of the local manners, character, and circumstances, occupy a conspicuous rank. In an enumeration of the causes which concur to prevent the due administration of justice, Sir Henry Strachey says; “Another impediment, though of a very different nature from those I have mentioned, and much more difficult to remove, is to me too palpable to be over-looked: I mean, that arising from Europeans, in our situation, being necessarily ill qualified in many points, to perform the duties required of us, as judges and magistrates. Nothing is more common even after a minute and laborious examination of evidence on both sides, than for the judge to be left in utter doubt respecting the points at issue. This proceeds chiefly from our very imperfect connexion with the natives, and our scanty knowledge, after all our study, of their manners, customs, and languages. The judge of circuit, and his assistant, are strangers, and quite unacquainted with the character of the persons examined, and the credit due to them; and always on that account less competent to discover truth among volumes of contradictary evidence.”2 On another occasion, he asks, “What judge can distinguish the exact truth, among the numerous inconsistencies of the natives he examines? How often do those inconsistencies proceed from causes, very different from those suspected by BOOK VI. Chap. 6. 1793.us? How often from simplicity, fear, embarassment in the witness? How often from our own ignorance and impatience? We cannot study the genius of the people, in its own sphere of action. We know little of their domestic life; their knowledge, conversation, amusements, their trades and casts, or any of those national and individual characteristics, which are essential to a complete knowledge of them. Every day affords us examples of something new and surprising: and we have no principle to guide us in the investigation of facts, except an extreme diffidence of our opinion; a consciousness of inability to judge of what is probable or improbable.” He adds, “The evil I complain of is extensive, and, I fear, irreparable. The difficulty we experience in discerning truth and falsehood among the natives may be ascribed, I think, chiefly to our want of connexion and intercourse with them; to the peculiarity of their manners and habits;—their excessive ignorance of our characters—and our almost equal ignorance of theirs.”1
It is impossible to reflect upon the situation of English gentlemen, settled in the country, as proprietors of land, and as manufacturers, without perceiving how advantageously they would be situated for acquiring that knowledge of the natives, in which the Company’s servants are proved to be so defective; and for giving that aid in the administration of justice, without which a good administration is not to be attained. Such men would be forced into an intimate intercourse with the natives, whence, under the necessity of employing them, and of transacting and conversing with them in almost all the relations of life, an intimate knowledge would arise. They would have a local influence of great efficacy. They would be useful, beyond all calculation, in maintaining order in a wide circle around them, among aBOOK VI. Chap. 6. 1793. people in such a state of society as that at present found in Bengal.1
Though in most of their reports, the Judges regard a remedy as hopeless; yet there is one recommendation in which a considerable number of them concur. As trials are delayed, and crimes escape punishment, by a deficiency in the number of tribunals, the periodical visits of the judges of circuit being inadequate to the demand for justice, it is proposed, that the magistrates in the Zillahs should be vested with the powers of penal judication. To this recommendation, however, several weighty objections apply. In the first place, the civil judicature in the Zillahs is already a duty far too heavy for the judges to discharge; and the arrear of causes produces a delay, which approaches to a denial, of justice. If in the hands of BOOK VI. Chap. 6. 1793.those judges the business of penal judicature were to be added to that of civil judicature, the number of them ought to be doubled; and that, we are told, the finances of the Company will not allow. Besides; according to the routine of the Company’s service, the judges in the Zillahs are generally too little advanced in years and experience, to be entrusted with the powers of life and death, or any powers approaching to that importance, under so many chances of error as accompany judicature in India.
As the number of darogahs and their establishments would be far too small to prevent the disorders of the country, even if they were faithful to their trust, some of the judges propose, that their numbers should be increased, and their salaries augmented. To this too, the objection of the government would be, that the finances cannot admit the expense. A more legitimate objection is, that by increasing the number of darogahs they would only increase the number of privileged plunderers: and that it is one of the most imbecile of vulgar prejudices to suppose, that large salaries make honest men. So long as things were so miserably organized, that gain, unbalanced by danger, would accrue to the darogahs, by violating their duties, they might be expected to violate them, if their salaries were as large as those of the Governor-General.
Some of the Company’s servants, among other Mr. Dowdeswell, argue strongly for the employment of spies and informers. Their abstract, general arguments, to show that informers are useful auxiliaries to justice, are good and conclusive. Make justice certain, immediate, unexpensive, at the tribunals, and every act which spies and informers can perform, will be an act of utility. But if, in India, your securities for justice are so wretched, that, by employing spies, you only create a new class of robbers, and let loose uponBOOK VI. Chap. 6. 1793. the people an order of men who carry on their depredations with the arms of government, you increase instead of diminishing the disorders of the country.
Contemplating this accumulation of difficulties, the Company’s servants in general appear to regard the case with a kind of despair; or at least to contemplate the evil as rooted so deeply in the moral character of the people, that it cannot be removed, unless by the slow improvements which it may be possible for education to effect.
After the recommendation of some of the above expedients, of the efficacy of which his hopes were but too sanguine, Mr. Dowdeswell said; “I am at the same time sensible that a great deal more must be done in order to eradicate the seeds of the crimes most injurious to the peace and happiness of society. The real source of evil lies in the corrupt morals of the people. Under these circumstances, the best laws can only have a partial operation. If we would apply a lasting remedy to the evil, we must adopt means of instruction for the different classes of the community.”1
In answer to the interrogatory, “Do any measures occur to you, the adoption of which would, in your opinion, contribute progressively to the improvement of the moral character of the inhabitants of the division;” the judges of Moorshedabad replied; “The moral character of a nation can be improved by education only. All instruction is unattainable to the labouring poor: whose own necessities require the assistance of the children, as soon as their tender limbs are capable of the smallest labour. With the middle class of tradesmen, artificers and shopkeepers, BOOK VI. Chap. 6. 1793.education ends at ten years of age, and never reaches further than reading, writing (a scarcely legible hand) on a plantain leaf, and the simplest rules of arithmetic. We are not prepared to suggest any measures, the adoption of which would, in our opinion, contribute progressively to the improvement of a people thus circumstanced.”1 In reply to the interrogatory which respected the effect produced by the operation of the English government on the moral character of the natives, the same judges observe; “The general moral character of the inhabitants of our division seems, in our opinion, much the same, as we have always known the moral character of the natives in general. Ignorance; and its concomitant, gross superstition; an implicit faith in the efficacy of prayers, charms, and magic; selfishness, low cunning, litigiousness, avarice, revenge, disregard to truth, and indolence, are the principal features to be traced. It does not strike us, that the system established by the British government, for the administration of the laws, and the conduct of the internal administration of the country, can have any influence on the moral character of the inhabitants, in general, either by way of improvement, or otherwise.”2
On this, as on other occasions, Sir Henry Strachey evinces superior powers of reflection, and penetrates farthest below the surface. “To attempt,” says he, “any material improvement or alteration in the moral character of the natives, by the intervention of legislative measures, I look upon as vain. They no longer consider the laws as a part of their religion. I do not even see that, with us, law and morality have much connexion. It is the province of the magistrate to quell disorders and preserve peace; but, as to goodBOOK VI. Chap. 6. 1793. morals, I am not aware, that, either by precept or example, we are capable of producing any effect whatever. The vices and the crimes of the people proceed from their poverty and ignorance. And I do not conceive they are likely to grow much richer or wiser, while the present state of things exists.—This assertion, however, that the vices and crimes of the people proceed from their poverty and ignorance, I would wish to be understood with limitations. Where considerable numbers are collected and associate together,—especially if there happens to be much inequality of rank and fortune,—the morals of the people are worst: The same may be observed respecting such persons as have occasion to attend our cutcherries; they get into bad habits. It is not always, therefore, that the people are the worst where they are the poorest and most ignorant; nevertheless, the assertion is, in my opinion, generally speaking, true. It is certain that where labour is amply rewarded, where all can easily get employment, and where the poor are provided for, the people lead industrious and virtuous lives; and it will be observed that in remote parts, where debauchery and dissipation are little known, very few, except from necessity, resort to depredation on the public. Most, but not all, decoits begin their evil practices from necessity. A ryot, finding some difficulty to subsist, either from his imprudence or ill fortune; a peon, or other servant, losing his place, and unable to procure another; a cooly finding no employment: Such persons, of whom in this populous country there are always many thousands, often take to stealing; are corrupted by vicious companions; drink spirits; and are gradually led on, from impunity and habits of idleness, to become decoits, BOOK VI. Chap. 6. 1793.and depend on robbery alone for subsistence.”1 This is an important passage, which will afford evidence for some interesting conclusions in a subsequent page.
We have now seen the extent and dreadful nature of the evil; the inefficacy of the remedies which have been applied; and the sort of despair entertained by the functionaries of government that better can be found. That there is no impossibility, however, in establishing a good administration of justice, even in such a state of things as exists in India, we may infer without much danger of mistake, or even of contradiction. If much of the difficulty has arisen from the dominion of English prejudices, and especially that deep-rooted prejudice, that English law is the standard of perfection to which every thing should be fitted, considerable progress towards improvement will be made, as soon as we have emancipated ourselves from those prejudices.
In the first place, as the law, according to what we have already seen, is in a state in which it is to a great degree incapable of performing the offices of law, and must remain almost wholly impotent, in a situation in which the deficiencies of law are not supplied by manners, let the law be reformed, and put into that state in which alone it is adapted to answer the ends for which it is intended. Let the laws, whatever they may, for the security of existing rights, or the attainment of future advantages, be determined to be, receive what alone can bestow upon them a fixed, or real existence; let them all be expressed in a written form of words; words, as precise and accurate as it is possible to make them, and let them be published in a book. This is what isBOOK VI. Chap. 6. 1793. understood by a code; without such a code there can be no good administration of justice: in such a state of things as that in India, there can, without it, be no such administration of justice as consists with any tolerable degree of human happiness or national prosperity. In providing this most important instrument of justice, no further difficulty will be found, than the application of the due measure of virtue and intelligence; not to be looked for in the classes, whose interests the vices of the law promote. Sir William Jones, and others, recognized the demand for a code of Indian law; but unhappily thought of no better expedient than that of employing some of the natives themselves; as if one of the most difficult tasks to which the human mind can be applied, a work to which the highest measure of European intelligence is not more than equal, could be expected to be tolerably performed by the unenlightened and perverted intellects of a few Indian pundits. With no sanction of reason could any thing better be expected than that which was in reality produced; a disorderly compilation of loose, vague, stupid, or unintelligible quotations and maxims, selected arbitrarily from books of law, books of devotion, and books of poetry; attended with a commentary, which only adds to the mass of absurdity and darkness: a farrago, by which nothing is defined, nothing established; and from which, in the distribution of justice, no assistance beyond the materials of a gross inference, can for any purpose be derived. To apply the authority of religion, or any other authority than that of the government, to the establishment of law, is now unnecessary; because the great and multiplied changes which the English have made in all the interior regulations of society, BOOK VI. Chap. 6. 1793.have already destroyed in the minds of the natives the association between the ideas of religion and the ideas of law. But, at any time, for combining the authority of religion with that of law, nothing more was required, than what might still be advisable; namely, to associate the most celebrated of the pundits. For digesting the law into an accurate code, such men would be altogether unqualified; but they might lend their peculiar and local knowledge to him to whom the task is assigned; and they might easily and effectually annex the authority of religion to his definitions, by subjoining quotations from their sacred books, and declaring the words of the code to be the true interpretation of them. The law of the natives, and the minds of its interpreters, are equally plaint. The words, to which any appeal can be made as the words of the law, are so vague, and so variable, that they can be accommodated to any meaning. And such is the eagerness of the pundits to raise themselves in the esteem of their masters, that they show the greatest desire to extract from the loose language of their sacred books, whatever opinions they conceive to bear the greatest resemblance to theirs. It would require but little management to obtain the cordial co-operation of the doctors, both Moslem and Hindu, in covering the whole field of law with accurate definitions and provisions; giving security to all existing rights, and the most beneficial order to those which were yet to accrue.
For the distribution of justice, there is required not only an accurate expression of what is to be observed and obeyed as law; but an adequate judicial establishment; or, an appointment of judges, and other ministers of justice, sufficient, on every occasion, which calls for a decision, to declare what the law is, and to carry it into effect, with the smallest possible burthen,BOOK VI. Chap. 6. 1793. in the way either of delay, vexation, or expense.
For this important purpose, it is evidently necessary, that the number of tribunals should bear a due proportion to the business which they are called upon to perform; and that, whenever the causes which offer themselves for decision exceed the number of those which it is possible for the existing tribunals to decide, addition should be made to the number of them, till they are sufficient for the prompt investigation of every case on which the judicial decision is required. From no government, surely, ought this language to be heard; that it does indeed see the necessity of a greater number of tribunals, in the inability of the existing number to investigate the suits of the people; but that it has something else to do with the money which it takes from the people, than to expend it in perfecting the administration of justice.
Nor is it enough, that the tribunals be sufficient in number to perform without delay the judicial business of the country; they ought to be sufficiently near each other, to enable every suitor to have recourse to them without that obstruction to justice which arises from the necessity of any considerable journey to perform. Of the value of this attribute of a judicial establishment no illustration is required.1
Another important condition to the excellence of a judicial establishment is, that in its mode of conducting BOOK VI. Chap. 6. 1793.the judicial business, all forms, all ceremonies, which create delay, trouble, and expense, or any one of them, without any corresponding advantage, should be carefully and completely retrenched; and nothing whatsoever left, but those plain and rational operations, which are recognized by all the world as useful, and alone useful, in the investigation of a matter of fact. It will remove the necessity of a longer explanation to observe, That the mode of procedure, which is called summary, and followed in the small debt courts in England, is an example of the mode of procedure which is divested of ceremonies, and retains only such plain and simple operations as form the ordinary steps of a rational inquiry: That the mode of procedure, on the other hand, which is called regular, and followed in the superior courts, is an example of the mode of procedure which is loaded with superstitious ceremonies and observances; and complicated by a multitude of operations, altogether different from the recognized steps of a rational inquiry. The consequence of this load of superstitious observances, and this multiplicity of operations, is, not to lead with more certainty to the discovery of truth, but with less certainty: while the people are driven from the courts of justice by the terror of delay, trouble, and expense; and every species of injustice flourishes under the prospect of impunity and success. In the summary mode of procedure, in its perfect shape, is included every operation conducive to the elucidation of truth; every thing which is necessary for securing and bringing forward the evidence, and for presenting it to the mind of the judge, in its greatest possible plenitude, and most perfect possible shape. To add to these operations a multitude of others, which have no tendency whatsoever to improve the state in which the evidence is presented to the mind of the judge, can have no tendency toBOOK VI. Chap. 6. 1793. aid the discovery of truth. It must have a sure tendency to give it obstruction, in ways too numerous here to recount. Among the bitter fruits of a complicated mode of procedure; the loss of evidence, by the death, removal, and feeble memories of witnesses; and the successful efforts made by the guilty to intimidate or corrupt them; are enumerated, by the Indian judges, as evils, with which their experience had made them minutely acquainted. Were there nothing more than the complexity, which a multitude of nice and puzzling operations produces, it would be hurtful to the discovery of truth, by diverting and confusing the mind of the judge. But when those multiplied niceties and observances are superstitiously elevated, as they uniformly are, into matters of chief and primary importance; when the mind of the judge is more vigilant to observe whether every one of the words and actions which enter into a multitude of frivolous ceremonies has been exactly observed, than to elicit every particle of evidence, and assign to it the proper station in his mind, it is impossible to estimate the injury which is done to the discovery of truth, and thence to the interests of justice, by a technical mode of procedure. Even by the servants of the Company, who have remarked with so much intelligence the shocking state of justice in India, I observe that “precipitate” is the epithet applied to the summary, or rational mode of procedure; “deliberate,” that applied to the regular or ceremonious. It is a proof of the defects of their education, when such an illusion could pass upon minds of so much strength. That which is done with thought, is that which is done deliberately. That which is done without thought, is that which is done precipitately. It is of no consequence how long a thing remains undone, BOOK VI. Chap. 6. 1793.provided thought all the while is never applied to it. During the delay which takes place by the performance of the superstitious ceremonies of regular procedure, is it supposed by any body that the judge turns a thought to the merits of the cause? Deliberation is performed by the non-existence of thought, according to the theory of those who account delay and deliberation the same thing. The judge deliberates upon the question, at least to any valuable purpose, only during the time when he is receiving and digesting the evidence; for, as to the law, if it were all clearly expressed and written in a book, there never could be any considerable doubt. If any point was found to be really doubtful, the case should either be suspended, or decided provisionally, till the determination of the legislature, removing the doubtfulness, should be applied for, and received. But with regard to evidence, and the light which it yields, the only article of real importance in the pursuit of truth, the judge is far more favourably situated, in the summary mode of procedure, than in the regular; because, in the summary mode, it is the light of evidence to the collecting and presenting of which, in its most complete and trust-worthy state, the force of every operation is directed. In the regular mode, so far is this from being the primary object, that a great proportion of the ceremonies have the unavoidable effect of compelling the evidence to be presented, in not the best possible, but a very inferior, state. With regard even to time for deliberation, the situation of the judge, under tardy, is worse than that of the judge under expeditious procedure. Of the greater proportion of causes the evidence may all be received and thoroughly understood in a very limited space of time. But causes do every now and then occur, in the case of which time is required, not only to receive, but complete the evidence; asBOOK VI. Chap. 6. 1793. when, by the hearing of one article of the evidence, other articles are indicated which time is required to produce. As often as occasions of this description occur, the rational mode of inquiry directs, that the judge should allow himself that portion of time, whatever it is, which is suited to the exigence of the case. Under the regular mode of procedure, the judge is tied down to fixed times and seasons; and must decide upon the evidence which he has been able to hear, whether it is complete and well digested, or the contrary. The nature of regular or superstitious procedure, therefore, is to produce the opposite evils of delay and precipitation. The nature of rational procedure is to shun both evils; to retrench every moment of the time and labour expended in the performance of useless ceremonies; to ensure in the fullest measure all the time which is necessary for the most perfect reception and understanding of the evidence.
It is probable that the words “summary,” and “regular,” impose upon persons who give to the subject only a precipitate glance. They are very ill chosen; that is to say, they very inaccurately describe the objects which they are employed to denote. Summary has very frequently the same import, as the term abridged. Now an abridged mode of procedure naturally means a mode of procedure in which some of the steps are left out; and if all the steps were useful, such a mode of procedure would be undoubtedly precipitate. But if no steps are left out, except those which are useless and pernicious; and all those which are of any use are much more carefully and much more perfectly performed, the summary mode of procedure is in reality the least precipitate; and also the most regular, if the exact adjustment of means to their ends, be the standard of regularity. Better names would be; the BOOK VI. Chap. 6. 1793.superstitious, instead of the regular, mode of procedure; and the rational, instead of the summary.
Thus far the way for the government of India is clear. For the performance of what is thus shown to be necessary, all that is wanting is the will. If this were done, let us then consider how much would be gained. The mass of causes, that mass which, in India, smites, by its magnitude, the administration of justice with impotence, divides itself into two classes: First, that of the causes which derives themselves from the vices of the law: Secondly, that of those which derive themselves from the vices of the people. There are few other; there can be but few other. How great the proportion of those which are derived from the vices of the law; the complaints of the judges and other functionaries in India abundantly disclose. We learn that the great body of the people are excluded from the courts of law by means of the expense; that oppression reigns because the people are unable to sue for redress; that universal encouragement is given to one man to withhold from another what is his due, by the certainty of delay, and the two chances, first of not being prosecuted, and secondly of baffling the plaintiff by the uncertainties of the law. We also learn that a wide field of impunity is ensured to every species of crime, the most atrocious not excepted: first, because the people, upon whom the expense and trouble, arising out of the dilatory and costly proceedings of the courts, impose a burthen greater than they are able to bear, fly from the duty of appearing as witnesses or prosecutors against delinquents; secondly, because delay produces the frequent destruction of evidence; and, together with the uncertainties of an unwritten law, and the complicated ceremonies of a superstitious mode of procedure, affords the greatest chance of escape. From the whole then of these evils; to which is in aBOOK VI. Chap. 6. 1793. great measure to be ascribed the destructive anarchy which exists under the government of India; from the whole, I say, of that part of the mass of litigation which grows out of the vices of the law, and all the evils with which both are attended, the reform of the law, that is, an accurate code, an adequate judicial establishment, and a rational mode of procedure, would effect a complete deliverance.
No litigation would then remain, to prevent the effectual administration of justice, but that which would arise from the vices, intellectual or moral, of the people. The number of difficulties being greatly diminished, the power of coping with them would be greatly increased. It is also an important consideration, how much the vices of the people depend upon the vices of the laws, and how necessarily the vices of the people diminish, as the virtues of the laws are increased. Of this no man will doubt; that the most effectual step which can be taken by any government to diminish the vices of the people is, to take away from the laws every imperfection by which the vices, to impart to them every perfection by which the virtues, of the people may receive encouragement. On a former occasion we have heard Lord Cornwallis declare, that the prosperity or decline of any people may always be referred to the laws, as their source.1 To the same copious fountain of all that is good, or all that is evil, with still greater certainty may their vices and virtues be traced.
The vices among the people of India which tend most to enfeeble the arm of justice, are two; their proneness to perjury; and their perfidy as agents of police: the one rendering it extremely difficult to BOOK VI. Chap. 6. 1793.convict offenders upon satisfactory evidence; the other, shielding them from detection and apprehension. One would think it was not an effort beyond the reach of the human mind to find remedies of considerable efficacy for those diseases.
First in regard to perjury; the powers with which government, in this, as in other cases, is capable of acting upon the human mind, are three; the power of instruction; the power of reward; and the power of punishment.
On the subject of perjury it appears, that the people stand peculiarly in need of instruction. Under the native systems, legal or religious, particularly the Hindu, perjury was treated as a very trifling and venial offence. The most effectual measures should be adopted to make them clearly comprehend, that there is no crime, upon which the present government looks with more abhorrence; and that there is no quality which will be employed as a more certain mark to distinguish the objects of its favour and disfavour. Effectual modes of communicating this knowledge would not be difficult to find. It is observable, that wherever governments are in earnest about the communication of any article of knowledge to the people, they seldom remain destitute of means. They are seldom baffled, we see, in communicating a complete knowledge of what they wish to be done by the people, how complicated soever it may be, in making payment of taxes. It would be easy in India, for example, to print upon the receipt of taxes, or any other paper of general distribution, a short and clear description of the crime of perjury; with a notification, in the most impressive terms possible, of the deep abhorrence in which it is held by the government, and the severe punishment, both direct and indirect, to which it is exposed. To secure attention to this or any other article of information, many expedientsBOOK VI. Chap. 6. 1793. might be found; rendering it, for example, necessary to answer certain questions, before any one could be admitted to perform certain acts. Where the manners of the people suffer any important condition to be placed before the permission to contract a marriage, it might be rendered conductive to many good effects.
In regard to the application of rewards and punishments, the channel in which the conceptions of the Reformer should run, is all that can here be easily shown. In the first place it is obvious, that every man, whose veracity in a court of justice appears without suspicion, should be treated by the court with peculiar respect, and pointed out as an object of honour and esteem. He might be asked, if he had any favour to request, or any service to point out, which the court could render him, to testify its opinion of his virtue: he might be furnished with some honorary badge of distinction; and might even receive a ticket which should point him out as an object of favour to all the instruments of government, and to all those who wished to make the government their friend.
The punishments which have been applied to this offence appear, by the complaints of the Indian judges, not to have been skillfully chosen, and to have been attended with little advantage. To prevent a crime of which the mischievous effects are so great, one would be willing to go to the expense of considerable severity, provided it were well adapted to the end. We are informed that severity of punishment has greatly diminished the prevalence of perjury before the Supreme Court; but the information is too general to enable us to ascertain the value of the fact. One circumstance there is which renders severity of punishment peculiarly inapplicable to this crime; and that BOOK VI. Chap. 6. 1793.is, the uncertainty of proof. In the greater number of cases, perjury is rather strongly suspected than clearly proved; and a judge, whose humanity is considerable, will not execute a terrible punishment, where he is not perfectly assured of guilt. The conconsequence is, that in the great majority of cases, the perjurer, for want of certain evidence, escapes and the crime receives encouragement. On the other hand, if the punishment were mild, and the evil not incapable of reparation in case of mistake, a strong suspicion would suffice for the inference of guilt, and few delinquents would be suffered to escape. There is another consideration, of the highest possible importance; That perjury is not an offence which in every instance implies the same degree of guilt. In different instances, it implies all possible varieties of guilt, and very often, among the people of India, no guilt at all. Such, in many of them, is their imbecility of mind; so faint are the traces of their memory; so vivid the creations of their imaginations; so little are they accustomed to regard truth in their daily practice; so much are they accustomed to mingle fiction with reality in all they think, and all they say; and so inaccurate is their language, that they cannot tell a true story, even when they are without any inducement to deceive.1 Again, perjury is always committed as an instrument in the service of some otherBOOK VI. Chap. 6. 1793. crime; and bears the character of guilt, in a low or a high degree, according to the nature of the crime for the sake of which it is perpetrated. It may be committed in exculpation of one’s self, or of a near relation or friend; and for a slight or an atrocious offence; it may be committed for the accomplishment of a petty fraud; or it may be committed for the deliberate purpose of taking away the life of an innocent person. It is evident, that in these cases, there is the greatest possible difference in point of guilt; and the feelings of our nature revolt at the thought of inflicting the same punishment upon all. In the case of this, as of other accessary crimes, common good sense, not to speak of legislative wisdom, directs that it should be punished in some proportion to the principal crime;—the crime the benefit of which was the motive to the transgression.
In tracing the truth, through the mazes of Indian evidence, there is required in the judge, not only much acuteness and sagacity, but great acquaintance with the habits and manners of the people; that he may be able to interpret the innumerable indications, which are given by peculiar modes of expression and deportment. The grammatical construction of the sounds which pass through the lips of a witness, is often the least part of the instruction which a penetrating judge derives from him. Even in the native country of the Judge, experience gained from long practice in the modes of thinking, acting, and speaking, of the principal class of depredators. is found to give him important advantages in extracting the evidence of guilt. The extraordinary disadvantages, under BOOK VI. Chap. 6. 1793.which Englishmen, totally unacquainted with the manners of the Indians, lie, when they begin to seek their way through the labyrinth of Indian testimony, can be easily conceived. This ignorance is, accordingly, singled out, by some of the most intelligent of the Company’s servants, as a source, and one of the principal sources, of the wretched administration of justice. The civil servants of the Company, who ascend to the office of Judge in the routine of service, have, in general, no opportunity of obtaining any considerable acquaintance, with the modes of thinking of the natives, and the evidence which their peculiarities import.
Another consideration, which ought to be impressed upon the minds of those who have it in their power to amend the legislation of India, is; That well to perform the service of a judge, skilfully to extract, and wisely to estimate every article of a complicated mass of evidence, not only peculiar experience, and that acuteness and dexterity, which are acquired by habitual practice are of the greatest importance, but also an enlightened acquaintance with those general principles regarding law and the administration of justice, which have their foundation in the general laws of human society, and which ought to run through and form the ground-work of the laws of all nations. In a situation where the body of law is complete, and well adapted to its ends, the absolute necessity is not so great for this species of knowledge in the judge, because he has rules for his guidance in every thing. He has few rules for his guidance in India, where every judge must in a great measure, be the rule to himself. Here, it is evident, he has the greatest possible occasion for the guidance of those general principles, which an enlightened education alone can give. The youth who is destined to the great and delicate duties of a judge, in India, cannot be tooBOOK VI. Chap. 6. 1793. carefully disciplined in that philosophy which gives the best insight into the principles of human nature; which most completely teaches the ends which the administration of justice has it in view to accomplish, and the means which are best adapted to the ends. This sort of education is of importance not only for imparting a knowledge, to the youths who become judges, of what ought to be done; but for imparting to them a love for the ends of justice; and thus creating a grand set of motives for ensuring the performance of what ought to be done. If those on whom the legislation for India depends are in earnest for the establishment of a good administration of justice, a good education for judges is one of the first reforms they will undertake. This reform, too, will be without difficulty; because all that is wanting is a good choice of means. The cost would not be exorbitant. Here also is another of the occasions which so frequently occur, of remarking the bitter effects of that wretched policy, by which the settlement of Englishmen in our Indian dominions has been opposed. Had all parts of India been stocked, as under a system of freedom would have been the case, with Englishmen, settled, in the various occupations of agriculture, manufactures, and trade, there would have been in the country a sufficient number of English gentlemen, thoroughly conversant with the manners and character of the natives; many of them born and bred among them; gentlemen, to whom it would have added dignity, to be vested with the powers of judicature; and who would have been well pleased to discharge its duties for a moderate reward.
By these, or expedients such as these, it will probably be allowed, that the difficulties, arising from BOOK VI. Chap. 6. 1793.the prevalence of perjury in India, might, to a great degree, be overcome. It is next to be inquired, what is capable of being done for the improvement of the police; that is, for the best organization of the powers necessary to detect and apprehend offenders, and to guard the people against the mischief they pursue.
Although, in a situation where the moral sanction operates with so little effect as in India, where the intellects of the people are too weak to distribute their love and esteem, their hatred and contempt, with operative energy, upon the acts, respectively, by which society is benefitted, or injured, the difficulty of ensuring a tolerable discharge of the duties of the men employed as agents of police is greatly enhanced; yet, in every situation, agents will violate their duties, if it is their interest to do so; and if in India it is made their interest not to violate them, we may count, with tolerable certainty, upon their being performed. We see the end, then, for which the means remain to be provided. On the subject of those means, a few general suggestions are all that can here find an appropriate place. Much both of local and of appropriate knowledge is required for details.
One observation there is, of which it is of importance that the weight should be felt. Were the business before the tribunals well performed, by removing the imperfections of law and judicature, the difficulties of police would be greatly reduced. As every offender will be pretty sure to suffer, who was actually detected and apprehended, the number of crimes would be so far diminished, and the agents of police more afraid to transgress. If the people were not punished for giving information, by a load of expense and trouble, they would afford means of greatBOOK VI. Chap. 6. 1793. value for detecting and apprehending the authors of crime. Their apathy might be overcome by appropriate instruction, and by gentle applications of both punishment and reward. Protection indeed would he required against the vengeance of the decoits; and this should be one of the first objects of government. No exertion of its powers can be too great, to pursue immediately, and incessantly, the gang by which any enormity has been committed in revenge for information. It should be seen and felt, by the whole community, that government will never rest, till it has seized the men by whom a crime, in so high a degree injurious to society, has been perpetrated, and till it has inflicted upon them the punishment which the repression of so dreadful an enormity requires. As one great end would be, to interest and rouse the people, might they not be called forth, in such a pursuit, in the mode of a posse comitatus? One expedient will naturally suggest itself to every body. The army could not be more usefully, nor more honourably employed, than in protecting the people who maintain them, from internal, as well as external, foes. All that would be necessary would be to distribute the men with their officers according to a skilful organization, combining their operations, in the smallest parties, with their operations in a body. The organization of people called gens-d’armes in France, would afford the instruction of an example. The concurrence of their will might be ensured by reward, as well in other shapes, as in that of honour, which would be so justly their due. Against the abuse of their powers, a well-ordered plan, and certainty of punishment, might afford a pretty effectual security. Objections will be drawn from the danger to the morals and discipline of the soldiers; but the BOOK VI. Chap. 6. 1793.same securities which preserved them from the abuse of their powers, would also preserve them from the loss of their virtue. A more serious difficulty would be, to supply their place when called away by the demands of war.
The best remedy to this, as to many other difficulties which baffle, and, without it, will long continue to baffle, the powers of the Indian government, would be found among the admirable effects of colonization. If Englishmen were mixed in considerable numbers among the natives, it would be easy to find a sufficient number of men, whose intellectual and moral qualities would fit them for guiding the native agents in the functions of police; and through whom it would be possible to prevent the abuse of the powers of those agents by insuring its detection and punishment. The parent which begets the crimes of the darogahs, as of the decoits, is their knowledge of the inability of government to punish them.
When the business of detection and conviction is accomplished, punishment remains. On this subject a few observations are still to be made. As crimes have multiplied, increasing severity of punishment has been tried, and the multiplication of crimes has not been diminished. Beside the general experience and arguments which prove the inefficacy of severe punishments for the repression of crime, peculiar reasons apply to the case of India. Under the infirmities which diminish the evidentiary force of almost all Indian testimony, the cases are comparatively few in which the guilty can receive conviction on very satisfactory evidence. The feelings of no humane judge will permit him to inflict a cruel punishment, such as death, or any thing approaching to death, when the evidence is not complete. His only alternative is, to acquit; the consequence is, that in a great proportion of cases, the guilty escape; andBOOK VI. Chap. 6. 1793. crime receives that effectual encouragement, which uncertainty of punishment always affords.1 For such BOOK VI. Chap. 6. 1793.a combination of circumstances as that which India presents to the hand of the legislator, the rational course of expedients would undoubtedly be, to apply that lenity of punishment with which alone it is found that certainty can be combined; to prescribe no punishment which, upon strong presumption of guilt, the mind of a good man would revolt provisionally to apply; to make use of no punishment the evil of which cannot be repaired, if the innocence of the prisoner should afterwards appear; and then to prescribe unsparing conviction as often as the balance of probability inclines to the side of guilt.
That admirable instrument for the application of all sorts of reparable punishments, and not only of reparable punishments, but what is infinitely better, of reformative punishments, punishments under the operation of which the restoration to society of hardly any offender would be an object of despair; the Panopticon penitentiary house, invented and described by Mr. Bentham, an organ of justice so well adapted to the exigencies of every community, would, with extraordinary advantage, apply itself to the extraordinary circumstances of Bengal. For individuals, under every species of guilt, and every legal degree of suspicion, an appropriate place would be found in one of these important hospitals for the mind; and society would no longer be exposed to danger from any individual to whom probable evidence of a mischievousBOOK VI. Chap. 6. 1793. character attached.1
Under the existing system the penal contrivances appear to be no better adapted, to their end than those which we have already contemplated. In the report from Moorshedabad, in 1803, “The number of crimes,” say the judges, “committed annually in the division under our jurisdiction, appears to have increased since the year 1793. The causes to which we ascribe the increase, are; the want of a preventive police; and the inefficacy of imprisonment, as a punishment, for either reformation, or example. We do not perceive any effects from the regulation which declares persons, convicted of the crime of perjury, liable to be marked on the forehead. In the course of our judicial duties, we still meet with the same barefaced disregard of truth, which always characterized the natives of India. The punishment of transportation, introduced by the British government, falls chiefly on decoits. And yet the crime of decoity has not decreased, in the division under our authority. To judge, therefore, of its operation by this result, it would follow,—that the punishment is of no effect; and the terror of it must daily diminish.”2
A government which would render honesty and BOOK VI. Chap. 6. 1793.justice prevalent among its subjects must itself be honest and just. Sir Henry Strachey, who looked upon the evils of India with eyes more enlightened than ordinary, complains, that “no provision is made for the return of those convicts to their country, who are transported beyond seas for a limited time, although it is well known, that hardly any native possesses the means of procuring a passage for himself.”1 What is this, but, under the false pretence of a sentence of a limited number of years, to pronounce, in all cases of transportation, a sentence for life? Is it possible that a class of delinquents who know themselves exposed to become the victims of this injustice should not be hardened to greater ferocity, and, on account of the wrongs which they are liable to receive, regard with less remorse the wrongs which they commit? Is it possible, that the most impressive of all examples, the example of the government, should fail of its effect, in imbuing the minds of the people with a reverence or contempt of justice?
There is another remedy for the evils of that delinquency which, to so dreadful a degree, prevails in India; a remedy which some of the agents of the Company’s government have wisely and virtuously brought to view, and which from every consideration both of humanity and policy deserves the most profound regard. We have already learned from Sir Henry Strachey, that the vices of the people arise from their poverty and ignorance; and especially their poverty; because he expressly affirms, that “where labour is amply rewarded, where all can easily get employment, and where the poor are provided for, the people lead industrious and virtuous lives.”2 He frequently recurs to this important topic. On another occasion he says, “In a year of plenty,BOOK VI. Chap. 6. 1793. like the present, when few are in want of food or employment, decoity will certainly less prevail, than in a year of scarcity.”1 The connexion between poverty and crime is one of the laws of society on which, to a peculiar degree, the attention of the legislator ought to be fixed. None of the links in the moral constitution of our nature is more indissoluble; on none do a greater number of important consequences depend. That a perpetual struggle with the miseries of poverty and want operates with baneful effect upon the moral character, no man who has observed the laws of human nature will dispute. When a man has nothing to lose and every thing to gain by disregarding the laws of society, by what power is he to be restrained? As soon as death by hunger stares him in the face; with regard to him, the law is deprived of its power; for what is the evil with which it meets him, to the evil from which he runs? Another thing ought to be well remembered, That extreme misery, and above all things the miseries of poverty, diminish the value of life; and that the man to whom life is a burthen is but little affected with the prospect of losing it. Whoever has had an opportunity of witnessing, with any habits and powers of observation, the deaths of the poor and the rich, must have been struck with one extraordinary distinction: In most cases the rich part from life with great reluctance; the poor, except just in the morning of hope, with a kind of satifaction, a sort of pleasurable anticipation of BOOK VI. Chap. 6. 1793.the rest of the grave; an expression among those of them at least who have entered the vale of years, than which there is none more common, none to which the feelings are more truly attuned. It it also a matter of general experience, that the man whose thoughts are perpetually harassed with the torment of immediate, or the dread of future want, loses the powers of benevolent sympathy with his fellow-creatures; loses the virtuous feelings of a desire for their pleasures and an aversion to their pains; rather hates their pleasures, as rendering the sense of his own misery the more pungent; desires their pains, as rendering the sense of that misery the less. This is the account which all the wisest interpreters of nature have rendered of that cruel and ferocious character, which uniformly accompanies the hardships of the savage life. The man who sets little value on his own life is not likely to be much affected at the thought of taking away the life of another. The man who rather desires the pains than the pleasures of others, is not likely to deny himself any gratification, on account of the sufferings to others of which his pleasure may be the cause. Another result of immediate suffering is, that it produces an extraordinary greedidess of immediate gratification; a violent propensity to any sensual indulgence which is within the reach. This is a result, which deserves the greatest attention; and which is a recognized, experienced principle of human nature. The animal nature of man, when it is under suffering, impels him, with a force which is almost irresistible, to afford himself some compensation, in the way of animal pleasure; any pleasure whatsoever, rather than none; that which he can most easily command; that which most completely takes from him a while the grating recollection of his own wretchedness. It is a rule, accordingly, that the poorest people are the most intemperate; the least capable ofBOOK VI. Chap. 6. 1793. denying themselves any pleasure, however hurtful, which they are able to command; hence their passion for intoxicating liquors; and hence, because still more wretched, the still more furious passion of the savage for those pernicious drugs. Nor is this all. The great restraining power, the happy influence which keeps the greatest part of mankind within the bounds of virtue, is the love of esteem, and the dread of contempt; the passionate desire, which is natural to man, for the favourable regards, the dread and horror with which he contemplates the unfavourable regards, of his fellow-creatures. The favourable regards, however, of mankind can only be obtained, by pursuing a line of conduct which is useful to mankind; their unfavourable regards can be avoided, only by abstaining from every line of conduct which is hurtful to them. But it deserves to be regarded with very great attention, that it is only in a state of some ease and comfort, that this salutary feeling exists in any considerable strength. And the wretchedness of poverty is attended with this evil consequence, that it excludes those favourable regards of mankind, the desire of which constitutes the strongest motive to virtue. It plunges a man into that state of contempt into which misconduct would have placed him; and out of which no virtues which he can practise are sufficient to raise him. The favourable or unfavourable regards of mankind, therefore, operate with little effect to restrain him from any course of action to which he is impelled. What, then, upon the whole of this induction, is the general result? That, in a state of extreme poverty, the motives which usually restrain from transgression; respect for the laws, dread of the laws, desire of the esteem and affection, dread of the contempt and abhorrence of mankind, sympathy with BOOK VI. Chap. 6. 1793.the pains and pleasures of our fellow-creatures, lose their influence upon the human mind, while many of the appetites which prompt to wickedness acquire additional strength.
If, therefore, the government of India would lessen the tendency to crime, which is manifested among its subjects to so extraordinary a degree, it must lessen the poverty which prevails among them to so extraordinary a degree.
If the state of crime be, as it undoubtedly is, a sort of criterion of the state of property, the people of India have been falling, since the year 1793, into deeper poverty and wretchedness. Knowing, then, what we thus know, of the progress of delinquency in India, what are we led to think of the unintermitting concert of praises, sung from year to year, upon the Indian government, and upon the increasing happiness of the Indian people, of which that government is the cause?
The mode of increasing the riches of the body of the people is a discovery no less easy than sure. Take little from them in the way of taxes; prevent them from injuring one another; and make no absurd laws, to restrain them in the harmless disposal of their property and labour. Light taxes and good laws; nothing more is wanting for national and individual prosperity all over the globe. In India, where there is yet uncultivated a prodigious quantity of good land, the inference will suggest a doubt to no instructed mind. In more fully peopled countries, the effect has never yet been seen of good laws in keeping the pace of population back to the pace of food. The laws of human nature, clearly read, no less ensure the one result than they do the other.
The government of Bengal lost an opportunity, than which a finer was never enjoyed, of accelerating the acquisition of riches, and hence the growth of virtue,BOOK VI. Chap. 6. 1793. and decline of vice, in the great body of the people; when it declared the Zemindars, and not the ryots, the proprietors of the soil; when it sought by coercive and artificial means to create that vast inequality of fortunes, of which the corruption of the great body of the people is the never-failing result.
It is actually singled out, by the most intelligent of the Company’s servants, among the causes of the prevalence of crime in India, as one, the operation of which is very particularly and distinctly felt. “Where considerable numbers,” says Sir Henry Strachey, “are collected and associate together, especially if there happens to be much inequality of rank and fortune, the morals of the people are worst, though, compared to the inhabitants of other parts of the same country, they may be said to be neither indigent nor uninformed.”1 That nothing should be done to prevent inequality of fortune, the good of society, because the encouragement of production, requires. Laws for the purpose of creating and preserving a forced, unnatural inequality, are the result of a desire of making slaves of the many to make lords of the few. The original laws of India follow in this important respect the dictates of nature. By permitting a man to dispose of his property as he pleases during his life, and leave it to any person, or any number of persons, after his death; and by dividing it equally among his children, or his relatives of equal proximity, if no disposition of it is made by himself, they favour that freedom of disposal, that perfection of ownership, that circulation and distribution of property, by which the benefits derived from property are in greatest perfection attained.
It has been alledged above, that most of the Indian judges point to education, as the only power from the operation of which a favourable change can be expected in the moral character of the people; on this subject, however, if Sir Henry Strachey is excepted, their views are superficial. The most efficient part of education is that which is derived from the tone and temper of the society: and the tone and temper of the society depend altogether upon the laws, and the government. Again; ignorance is the natural concomitant of poverty; a people wretchedly poor, are always wretchedly ignorant. But poverty is the effect of bad laws, and bad government; and is never a characteristic of any people who are governed well. It is necessary, therefore, before education can operate to any great result, that the poverty of the people should be redressed; that their laws and government should operate beneficently. The education of the poor is not extended beyond the use of written, in addition to that of spoken language. BOOK VI. Chap. 6. 1793.Now this, considered nakedly by itself, and without regard to the exercise made of it, cannot be regarded as of any great value. In Europe, where books are so happily diffused, the faculty of written language, imparted to any people, must of necessity prove to them a source of new and useful ideas. But in India, of what sort are the books to which alone it can introduce them? The tales about their gods, from which they can derive nothing but corruption. In fact, the natives of India, and other parts of Asia, are very generally taught the use of written language;1 and have been so from time immemorial; yet continue the ignorant and vicious people, of whose depravity we have so many proofs. No; if the government would make the faculty of reading useful to the people of India, it must take measures for giving them useful books. There is one effectual measure for this purpose; and there never was, and never will be another; and that is the freedom of the press. Among the other admirable effects of a free press, one is, that it makes it the interest of government that the people should received the highest possible instruction; compels the government to exert itself to the utmost in giving them instruction; to the end, that the people may not be in danger of being misled by misrepresentation; and that the government may be assured of their attachment, whenever it deserves it. The Indian government, however, if a conclusion from its past may be drawn to its future conduct, will not choose a free press for the first of its ameliorating agents. Considering the mental state of the people of India, it is possible that among them, at the present moment, the unrestrained use of the press might be attended with inconveniences of a serious nature,BOOK VI. Chap. 6. 1793. and such as would surpass the evils it would remove. There is no people, however, among whom it may not be introduced by degrees. The people of India, it is certain, ought to receive, as one of the indispensable instruments of improvement, as much of it as they can bear; and this would soon prepare them, if properly encouraged, for the receipt of more, and hence, by rapid steps, for the enjoyment of it, in all its fulness, and all its efficiency. The government of India is told, indeed, by one of its own servants, from whose recorded instructions it might learn much, that something far beyond the power of mere schooling, a power which in India cannot be strong, is required to work any beneficial change in the character of the people committed to its charge. “The vices and the crimes of the people,” says Sir Henry Strachey, “proceed from their poverty and ignorance; and I do not conceive they are likely to grow much richer or wiser, while the present state of things exists.“1 By the present state of things he undoubtedly means, the present state of the laws, and the government; on which every thing else depends. What he declares, therefore, is, that under the present state of the laws and government, the improvement, either of the circumstances, or of the morals of the people, is utterly hopeless; and that a fundamental change must take place in these, the primary sources of good and evil, before any change can take place in the streams they send forth. Next to the direct operation of ameliorated laws upon the intellectual and moral character of the natives, would be that diffusion of Englishmen in the society, by BOOK VI. Chap. 6. 1793.means of colonization, from which we have already seen that so many important consequences would flow.1
After the voyage of Lord Cornwallis to Madras, in 1793, he did not return to Bengal; but sailed for England in the month of August. To complete the view of his administration, the financial situation in which he left the Company, is all that remains to be described.
In the year ending April 1793, the whole of the receipts of the Company in India amounted to 8,225,628l.; the difference is 1,218,578l.; the profit, or gain, which accrued to the Company upon the transactions of that year. In the receipts were included the subsidies from Indian Princes, and collections from the ceded and conquered countries, to the amount of 1,911,492l.; and in the expenses were included the interest of debts in India, and the money supplied to Bencoolen and the other distant settlements, amounting to 702,443l. The debts in India were 7,971,665l. The debts in England, exclusive of the capital stock, were 10,983,518l. To the capital stock, another million had been added in 1789, which subscribed at 174 per cent., yielded, 1,740,000l. The capital stock, on which was now paid a dividend of ten and a half per cent., amounted to 5,000,000.2 The financial results of this administration, when compared with the financial results of that of Mr.BOOK VI. Chap. 6. 1793. Hastings,1 exhibit a decrease of the net surplus, but to compensate for this, the extinction of a small portion of debt. The financial state of the Company, as it appeared on the face of the accounts, is thus a little better in one respect, but worse in another; and the point of deterioration more material, doubtless, than that of improvement. As the government of India was, however, now the government of the ministry, it was the interest of the ministry to praise it. In this particular, they were accordingly, by no means wanting to themselves. The influence of the ministry in parliament has been almost always sufficient to make the praises bestowed by the ministry be accepted in parliament as principles of belief; and the influence of ministry and parliament was combined, to give them an ascendancy over the belief of the nation at large. Mr. Dundas, no ordinary master in the oblique arts of ruling the minds of men, represented these financial results, as an object not only of rejoicing and triumph, but even of astonishment. He endeavoured to persuade, and succeeded in persuading, the parliament and the nation, that India had fairly begun to be, what India would continue to be, a vast source of wealth to the nation, affording a surplus revenue, sufficient to enrich the East India Company, and contribute largely toward the maintenance of the British government itself. Such were the strains which year after year were sung in the ears of the nation; and dictated the legislative proceedings. In fact, however, the favourable symptoms, inferior as they were to those exhibited in 1786, lasted for only a year or two. In 1797, a permanent BOOK VI. Chap. 6. 1793.deficit began, and the rapid accumulation of debt exceeded all former example. The joy, indeed, which was expressed upon the financial prospects of India, wherever it was real and not pretended, was founded from the beginning upon ignorance. Large sums had been obtained from new-made conquests, and the charge to be incurred for their government was not yet ascertained. As soon as that charge had time to swell to its natural, that is, its utmost limits, the disbursements of the Indian government outran its receipts.
end of vol. v.
Short-hand writer’s report, MS in the, writer’s hands.
The words of Mr. Burke, as reported by the historian of the trial, are as follow: “At the revolution, the people had taken no other security for that preservation, and for the pure and impartial administration of justice, than the responsibility of ministers and judges to the High Court of Parliament. An impeachment by the Commons was the mode of bringing them to justice, if the former should attempt any thing against the constitution, or the latter should corruptly lend themselves to measures calculated to set aside the government by law, or should attempt to pollute the source of public justice.
For the history of this war, the principal materials, as yet accessible, are the papers lard before parliament; the official statements in the Gazette; Dirom’s Narrative, which, beside a very minute account of the last campaign, contains a retrospect of the previous operations of the war; Mackenzie’s Sketch of the War with Tippoo Sultan; the instructive volumes of Wilks; Moore’s Narrative of the Operations of Captain Little’s Detachment; and the contemporary historians. Particular references for notorious facts were deemed unnecessary, and would have been troublesome by their number. Of the view of Indian politics which was taken in England at the time of the conclusion of the treaty of Cornwallis, an instructive judgment may be drawn from the following passage in the Annual Register (1792, chap. x. last paragraph). “The advantages which have accrued to the Company from this treaty, amply appear to counterbalance the enormous expense of the war. By the acquisitions in the neighbourhood of the Carnatic, and the consequent possession of the several passes from Mysore, a considerable augmentation of revenue, and a greater protection from hostile incursions, have been obtained in a very important quarter; whilst on the Malabar coast, where we owned but little before, a portion of rich territory has been allotted to us, which, exclusive of its own commercial consequence, by being attached to the Presidency of Bombay, will at once tend to increase the security of that Presidency, and enhance its value. The wise moderation of these counsels, which directed only a partial division of the conquered countries, cannot be too much praised. For had not a sufficient extent of territory been left to Tippoo Sultan, to make him respectable, and still in some degree formidable to his neighbours, the balance of power in India might have been again materially affected, the future adjustment of which would have led to new wars. The treaty was a return as far as circumstances would admit, to our old and true policy.”
See The Parliamentary History, for the speeches on Indian affairs of the ministers in general, more especially those of Mr. Henry Dundas, the President of the Board of Controul.
Fifth Report, ut supra, p. 56.
Vide sum total, supra, p. 417.
[3.]Answer to Interrogatories, parag. 7, in the Fifth Report, ut supra, p. 537.
Letter from the Collector of Burdwan to the Board of Revenue, dated 9th January, 1794; Fifth Report, ut supra, p. 59, and App. No. 8.
Fifth Report, p. 60.
Answer to Interrogatories, 30th Jan. 1802, Ibid. p. 536.
Mr. Thackeray’s Memoir, April, 1806, Fifth Report, p. 914.
Mr. Thackeray’s Memoir, Apil, 1806, Fifth Report, p. 917
Answer of Mr. Thompson, Judge and Magistrate of Burdwan, Fifth Report, p. 544.
Report by Sir. H. Strachey, in 1802; Fifth Report, p. 564.
Sir H. Strachey’s Answer to Interrogatories, Fifth Report, ut supra, p. 528.
Fifth Report, ut supra, p. 55.
Ibid p. 37.
Fifth Report, ut supra, p. 57.
Fifth Report, ut supra, p. 61.
See, below, under the head of justice, p. 458, 459.
Nothing is more remarkable than the propensity of all sorts of persons connected with the Indian government, to infer from any thing, or every thing, “the flourishing state of the country.” Here is one instance of the curious premises from which the inference is apt to be drawn. The man who explores, with any degree of attention, the documents of Indian history, will be at no loss for others. Another is adduced by Sir Henry Strachey, on the same occasion, and its insufficiency pointed out. “To those who are tolerably well acquainted with the internal state of the country, it is known,” says he, “that the population, unless checked by some great calamity, constantly increases very fast. Increasing cultivation necessarily follows population. The want of courts of justice, of a regular system of police, prevents not the prosperity of the provinces subject to the Mahrattas. Where no battles are fought, where the ryots remain unmolested by military exactions, where the Zemindar or his agent are seldom changed, the lands of the Mahrattas, in the neighbourhood of this district (Midnapore,) are in a high state of cultivation, and the population is equal, frequently superior to ours. From the circumstance of increasing population alone, we cannot, as many pretend, draw an inference of very high prosperity and good government.” In fact, where marriage at the earliest marriageable age is a religious duty of the strongest obligation, and to die without having a son, the greatest of misfortunes, nothing but extreme misery can prevent the rapid increase of population; and when a vast quantity of good land still remains to be cultivated, nothing can be the cause of such misery but bad government. “To imagine,” continues the same enlightened observer, “that the population has increased, solely in consequence of our system of internal administration, appears to me most erroneous. Under the native government, the population had reached its utmost height, or very near it. Thirty years ago, nearly half the people were swept away, by the greatest famine recorded in history. Ever since that period, except in 1790, when a partial famine happened, the numbers have been gradually increasing. I do not know that the increase has been more rapid, during the last ten years than during the twenty preceding; although most of the abuses of the native governments, and many new abuses of our government, prevailed throughout the greater part of the last-mentioned period. Supposing the country to enjoy peace, I cannot easily conceive internal mismanagement so excessive, as to stop the increase of population.” See for these, and the quotations in the text, Answer to Interrogatories in 1802, Fifth Report, ut supra, p. 530—532.
The Committee complain that they still remain in the dark respecting this important article of knowledge; and that the estimates formed by the best informed of the Company’s servants, betrayed by their discrepancy ignorance so profound of the field of inquiry. The first estimate, upon the acquisition of the Duannee, made the population of the three provinces, Bengal, Bahar, and Orissa, 10,000,000. By Sir William Jones it was computed to be 24,000,000. Mr. Colebrooke made it 30,000,000. The Committee take the medium between the conjectures of Jones and Colebrooke, and call it 27,000,000. Report, ut supra, p. 62.
Fifth Report, p. 63.
In India the actual state of the facts is asserted, upon the experience of Sir Henry Strachey, one of the most respectable of the Indian judges, and an honour to the judicial character, to be this; That “out of 100 suits, perhaps in five at the utmost,” the plaint of the prosecutor is unfounded. In ninety-five then, out of every 100 cases, the plaintiff has a right to a decision. In all that vast proportion of cases, with the small exception of those in which the point of justice may be doubtful, the defendant is an injurer; and every thing which has a tendency to prevent the law-suit, has a tendency to defraud the innocent, reward the guilty. Answer to Interrogatories, Fifth Report, ut supra, p. 526.
“The expense and delay,” says Sir Henry Strachey, “to which ryots are subject in prosecuting their suits are, to my knowledge, excessive. For the truth of this, I would refer to the records of any Register in Bengal. The duty of deciding revenue causes, for a small amount, under the operation of the present regulations, has fallen chiefly on the Registers. The rights of the inferior ryots are seldom discussed in the superior courts. The welfare of those from whom all revenue, and even subsistence, must be derived—who are the poorest, the weakest, and most numerous—is a matter of importance; and not unworthy of the notice of government. I have therefore thought it my duty to dwell on this subject with some minuteness.—It must, I am sure, constantly happen, that a ryot gives up his prosecution in despair, on finding his power of continuing it beyond his power to sustain!—Exaction of revenue is peculiarly difficult of proof. Either no engagements exist, and no accounts can be found; or they are extremely defective and perplexing. It is not the original fee, on the institution of the suit; but the subsequent charges, on exhibits, and on witnesses, that appear to me intolerable. I have often seen a suitor, when stripped of his last rupee, and called upon for the fee on a document, produce in court a silver ring or other trinket, and beg that it might be received as a pledge; and after all, perhaps, he was cast for want of money to bring proof.” On the subject of delay, this Judge observes; “The cultivators are unable to support themselves at the Sudder, during a procedure of two or three months. They cannot return to their houses without submitting to their oppressor. They must have speedy justice, or none.”
See for the above quotations, the Fifth Report, ut supra, p. 63, 64.
See for the above quotations, the Fifth Report, ut supra, p. 65.
Fifth Report, p. 65.
Fifth Report, p. 559
Fifth Report, p. 586.
Fifth Report, p. 603.
Fifth Report, p. 606.
Fifth Report, p. 66.
Answer to Interrogatories, Fifth Report, p. 533.
Fifth Report, p. 565, 566.
Ib. p. 540.
Fifth Report, p. 68.
Ib. p. 527.
Fifth Report, p. 546.
Ib. p. 551.
Fifth Report, ut supra, p. 524.
Ibid p. 534.
Fifth Report, ut supra, p 552, 554.
Fifth Report, p. 561. Sir Henry continues, “A robber even in Bengal is, I presume, a man of courage and enterprise; who, though he roughly estimates the risk he is to run by continuing his depredations on the public, is rather apt to under-rate that risk—small as in reality it is.”
Ibid. p. 565, 567.
Fifth Report, p. 71.
Fifth Report, p. 538.
Mr. Dowdeswell’s Report on the Police of Bengal, in 1819, ibid. p. 611, 612.
Fifth Report, p. 595, 596.
Report on the Police of Bengal, Fifth Report, p. 611, 612.
Fifth Report, p. 73. This expression, if authority can give it force, deserves peculiar attention. It was first employed by Mr. Lumsden, a member of the Supreme Government, recorded on the 13th of June, 1808; it was quoted, as authority, confirming the declaration of his own opinion, by Mr. Secretary Dowdeswell, in his Report in 1809, on the Police of Bengal; and lastly it is quoted, as expressing the result of their own inquiries, by the Committee of the House of Commons.
Fifth Report, p. 586.
Fifth Report, p. 577, 578.
Ibid. p. 73.
Fifth Report, p. 607.
Ibid. p. 73.
Fifth Report, p. 73, 74.
Fifth Report, p. 589.
Fifth Report, p. 561.
Fifth Report, p. 534.
Fifth Report, p. 587. “On my way through the northern parts of this Zillah,” he continues,” I had some conversation with a Zemindar, and a police darogah, who have distinguished themselves by their exertions to apprehend decoits; they told me that it was impossible to get any information about the great decoits; that the houses of all the principal inhabitants were open to them: yet that nobody dared mention their names for fear of being murdered.” Ibid.
Ibid. p. 591.
Ibid. p. 661, 554, 534.
Fifth Report, p. 74.
Ibid. p. 72.
Ibid. p. 361.
Fifth Report, ut supra, p. 75.
Ibid. p. 597.
Fifth Report, ut supra, p. 549.
Ibid. p. 555.
Ibid. p. 554.
Fifth Report, ut supra, p. 587.
Fifth Report, ut supra, p. 537.
Ibid. p. 561.
It is wonderful to see how the English government, every now and then voluntarily places itself in the station of a government existing in opposition to the people; a government which hates, because it dreads the people, and is hated by them in its turn. Its deportment with regard to the residence of Englishmen in India speaks these unfavourable sentiments with a force which language could not easily possess.
Mr. Shore’s Minute, Fifth Report, p. 169.
Answer to Interrogateries, Fifth Report, p. 534.
Answers to Interrogatories, Fifth Report, p. 562.
As an additional proof, if any additional proof were wanting, of the benefit which might be derived from the multiplication of English settlers; it may be mentioned, as a matter of present experience, that the Englishmen, the most thoroughly conversant with the language and manners of the people, are generally those who have been tolerated, as private adventurers, in some line of industry in the country. A conspicuous example lately appeared. A gentleman, of the name of Blacquiere, not in the service of the Company, but who had lived in India in the pursuit of private objects, was found so much better qualified than any of the servants of the Company, by his knowledge of the language and manners of the country, and had actually rendered so much service as a magistrate of Calcutta, that he was vested with extensive powers over several districts. After the private traders in India, the officers of the sepoys, from their intercourse with their men, are the best acquainted with the natives; and would very often form the best judges and magistrates. Lord Cornwallis, not finding a man among the civil servants of the Company at Madras, tolerably acquainted with the language and manners of the country, appointed sepoy officers to be collectors and managers in the newly acquired districts; and the great success of the experiment proved the wisdom of the choice. The services which were rendered by such officers as Read and Munro, in establishing order in extensive countries, show to what practical excellence the government of India might be carried, if Englishmen, incorporated with the natives as landlords and manufacturers, were entrusted with the powers of police.
Fifth Report, p. 617.
Fifth Report, p. 524.
Ibid. p. 520. See to the same purpose the answer of the Judge and Magistrates of Burdwan, p. 550.
Fifth Report, p. 539.
What is here observed on the properties desirable in a judicial establishment, are only such general deductions from the science of legislation, as can find a proper place in a critical history. The analysis of the whole subject is seen in great perfection, in a work entitled, “Draught of a new Plan for the Organization of the judicial Establishment in France,” by Jeremy Bentham, Esq.
Vide a, p. 345.
The following is a case so analogous as to afford some instruction. “He that goes into the Highlands with a mind naturally acquiescent, and a credulity eager for wonders, may come back with an opinion very different from mine; for the inhabitants, knowing the ignorance of all strangers in their language and antiquities, perhaps are not very scrupulous adherents to truth; yet, I do not say that they deliberately speak studied falsehood, or have a settled purpose to deceive. They have inquired and considered little, and do not always feel their own ignorance. They are not much accustomed to be interrogated by others; and seem never to have thought upon interrogating themselves; so that if they do not know what they tell to be true, they likewise do not distinctly perceive it to be false.—Mr. Boswell was very diligent in his inquiries; and the result of his investigations was, that the answer to the second question was commonly such as nullified the answer to the first.” Johnson’s Journey to the Hebrides.
Fifth Report, p. 588, 589, where we find the following excellent remarks, addressed, by E. Strachey, Esq. one of the Moorshedabad Judges, to the Court of Nizamut Adaulut, under date 19th Aug. 1808.
The want of this important instrument of judicature is felt, though not distinctly understood, by some of the Company’s judges. The answer to the interrogatories, in 1802, from the magistrates of the twenty-four pergunnahs, says; “A number of the convicts at this station are employed in repairing some of the public roads in the vicinity of Calcutta, &c. The number of guards requisite to superintend and watch the convicts, thus employed, prevents our keeping so many of them to work, as we could wish, and as the preservation of their health seems to require. The construction of a house of correction, in the vicinity of the jail, where all the convicts who are capable of work might be kept to constant labour, would remedy the evil, and appears to us to be a preferable mode.” Fifth Report, ut supra, p. 553.
Ibid. p. 521, 524.
Fifth Report, ut supra, p. 558.
Vide supra, p. 339, 340.
Fifth Report, p. 559. In another place he says, “Great population, and poverty, produce misery and crimes; particularly in a country where there is no public; and consequently, no certain and regular provision for the poor: Where there are, I may almost say, more poor than in any country: And where the ability, and disposition, of private individuals to support them, are continually diminishing.” Ibid p. 533.
Fifth Report, p. 539.
Fifth Report, p. 539.
Fifth Report, p. 539.
Ibid. p. 527.
See Malcolm’s History of Persia, and Elphinstone’s Caubul.
Fifth Report, p. 71.
Beside the official documents, which I have quoted as I went on, there is information of infinite importance, on the state of delinquency in India, on its causes, and on its remedies, in the work of a young Indian judge, lost to the world too soon, the work formerly quoted, on the “Political State of India,” by Alexander F. Tytler, Esq.
See the accounts of the E. I. C. for 1793, presented to parliament in 1794. See also the Third and Fourth Reports of the Select Committee on India affairs, in 1810, with the accounts in the Appendixes.
Vide supra, ii. 675.