us. which We are humbly of Opinion is due to a Work of this kind, undertaken on the plain Principles of Experience and Common Observation, without the advantages which an intimate Knowledge of the Theory of Law might have afforded We have endeavoured to adapt our Regulations to the Manners and Understanding of the People, and Exigencies of the Country, adhering, as closely as We were able, to their Antient Usages and Institutions. It will be still a Work of some Months, We fear, before they can be thoroughly established throughout the Provinces; but We shall think our Labors amply recompensed if they meet with your Approbation, and are productive of the good Effects we had in view. (Forrest, Selections from the State Papers of . . . Hastings, ii. Appendix A.) 42. THE NEW SYSTEM OF JURISDICTION AND ITS Letter from the Committee of Circuit to the Council at Fort William, dated Kasimbazar, August 15, 1772. ... upon the Subject In the Copy of our Proceedings, which accompanied our Letter of the 28 ultimo, we intimated our Intention of communicating to you our Sentiments of the Magistracy of this Province. For the Information of our honourable Employers, it may be necessary to premise . . . that in forming the enclosed Plan, we have confined ourselves with a scrupulous Exactness to the constitutional Terms of Judicature already established in this Province; which are not only such as we think in themselves best calculated for expediting the Course of Justice, but such as are best adapted to the Understandings of the People. ... The general Principles of all despotic Governments, that every Degree of Power shall be simple and undivided, seems necessarily to have introduced itself into the Courts of Justice; this will appear from a Review of the different Officers of Justice instituted in these Provinces, which, however unwilling we are to engross your Time with such Details, we deem necessary on this Occasion, in Proof of the above Assertions, and in Justification of the Regulations which we have recommended. First. The Nazim,1 as supreme Magistrate, presides personally in the Trials of capital Offenders, and holds a Court every Sunday, called the Roz Adalat. Second. The Diwan is the supposed Magistrate for the Decision of such Causes as relate to real Estates, or Property in Land, but seldom exercises this Authority in Person. Third. The Darogo Adalat ul Alea is properly the Deputy of the Nazim; he is the Judge of all Matters of Property, excepting Claims of Land and Inheritance; he also takes Cognizance of Quarrels, Frays, and Abusive Names. Fourth.-The Darogo Adalat Diwani, or Deputy of the Diwan, is the Judge of Property in Land. Fifth. The Faujdar is the Officer of the Police, the Judge of all Crimes not Capital; the Proofs of these last are taken before him, and reported to the Nazim for his Judgment, and Sentence upon them. Sixth.-The Kazi is the Judge of all Claims of Inheritance or Succession; he also performs the Ceremonies of Weddings, Circumcision, and Funerals. Seventh. The Motesib has Cognizance of Drunkenness, and of the Vending of Spirituous Liquors and intoxicating Drugs, and the Examination of False Weights and Measures. Eighth. The Mufti is the Expounder of the Law. Memorandum.-The Kazi is assisted by the Mufti and Motesib in his Court: After hearing the Parties and Evidences, the Mufti writes the Fetwa, or the Law applicable to the Case in Question, and the Kazi pronounces Judgment accordingly. If either the Kazi or Motesib disapprove of the Fetwa, the Cause is referred to the Nazim, who summons the . General Assembly, consisting of the Kazi, Mufti, Motesib, the Darogos of the Adalat, the Maulvis, and all the learned in the Law, to meet and decide upon it. Their Decision is final. . . From this List it will appear that there are properly Three Courts for the Decision of Civil Causes and One for the Police and Criminal Matters, the authority of the Motesib in the latter being too confined to be considered as an Exception : Yet, as all defective Institutions soon degenerate, by Use, into that Form to which they are inclined, by the unequal Prevalence of their component Parts; so these Courts are never known to adhere to their prescribed Rounds, but when restrained by the Vigilance of a wiser Ruler than commonly falls to the Lot of despotic States; at all other Times, not 1 I.e. the Nawab. only the Civil Courts encroach on each other's Authority, but both Civil and Criminal often take Cognizance of the same Subjects; or their Power gradually becomes weak and obsolete, through their own Abuses, and the Usurpations of Influence. At present, from obvious Causes, the Diwani Adalat is in Effect the only Tribunal: The Adalat ul Alea, or the Court of the Nazim, existing only in Name. Another great and capital Defect in these Courts is, the Want of a Substitute or subordinate Jurisdiction, for the Distribution of Justice in such Parts of the Province as lie out of their Reach, which in Effect confines their Operations to a Circle, extending but a very small Distance beyond the Bounds of the City of Murshidabad. . . . It is true that the Courts of Adalat are open to the Complaints of all Men; yet, it is only the rich, or the vagabond part of the People, who can afford to travel so far for Justice; and if the industrious Labourer is called from the farthest Part of the Province to answer their Complaints, and wait the tedious Process of the Courts... the Consequences in many Cases will be more ruinous and oppressive than an arbitrary Decision could be, if passed against them, without any Law or Process whatever. The Defect is not however left absolutely without a Remedy; the Zemindars, Farmers . . . and other Officers of the Revenue, assuming that Power for which no Provision is made by the Laws of the Land, but which, in whatever Manner it is exercised, is preferable to a total Anarchy: It will however be obvious, that the judicial Authority, lodged in the Hands of Men who gain their Livelihood by the Profits on the Collection of the Revenue, must unavoidably be converted to Sources of private Emolument; and, in Effect, the greatest Oppressions of the Inhabitants owe their origin to this necessary Evil. . . . From this Variety of materials we have endeavoured to form the Plan of a more complete, but more extensive, System of Judicature, by constituting Two Superior Courts at the Capital; the one composed of the United Magistracy of the Adalat ul Alea, the Adalat Diwani, and the Kazi (or Kazi's Office) for the Decision of Civil Causes; the other corresponding to the Faujdari, for the Trial of Criminal Cases. To prevent the Abuse of the Power vested in these Courts, and to give Authority to their Decrees, each, instead of a single Judge, is made to consist of several Members; and their Enquiries are to be conducted under the Inspection and Sanction of the Supreme Administration. To render the Distribution of Justice equal in every Part of the Province, similar, but inferior, Courts are also proposed for each separate District, and accountable to the superior. The usurped Power of the Officers of the Collections, and of the Creditor over the Persons of their Debtors, is abolished. It has also been our Aim to render the Access to Justice as easy as possible. By keeping exact Records of all judicial Proceedings, it is hoped that these Institutions, if they receive the Sanction of your Approbation, will remain free from the Neglects and Charges to which they would be liable from a less frequent inspection.. The same Reasons which have induced us to abolish the Haldari,1 operate with equal Force against the Fees of the Kazis and Muftis, which have always proved a heavy Grievance to the Poor, and an Impediment to Marriage: We have therefore determined on a total Abolition of these, and of the other less Dues hitherto allowed to these Officers, and to put them on the Footing of Monthly Servants with fixed Salaries. (Forrest, Selections from the State Papers of . . . Hastings, ii. Appendix B.) 43. A SUMMARY OF THE WORK OF TWO YEARS To Mr. Sykes, March 2, 1773. Justify me, my friend, if you hear me blamed for not doing more than I can do. Let them look at our proceedings, and see what has been done. We have fixed councils for four days in the week, and we have often had six. I have not missed three since I have been in the country, and every moment of my time besides is devoted to the more immediate duties of my station, Sundays excepted, and sometimes Saturdays, which I pass in the country, and generally as much involved in papers there as in town. Let me recapitulate the principal points which have taken place: (1) The reduction of the Nawab's stipend from thirtytwo lacs to sixteen, ordered in December 1771, two months before I arrived in the country, and executed in July 1772, 1 Haldari, a fee on marriages; the total dues on which amounted to about 6 rupees. The Committee of Circuit had recommended its abolition, as an unfair burden on the people; the Indian officers who drew these fees were to be compensated by fixed salaries paid by Government. without any loss from so long a suspension. (2) The reduction of the expenses from about 29 lacs to 13.2 yearly, and fixed at that sum. (3) The removal of Mahomed Reza Khan from the Naibat1 and Diwani. (4) The establishment of the Nawab's household, the appointment of the Mani Begum 2 to the management, and Gurdas to the Diwani of the Nizamat.3 (5) The plan and execution of a new settlement of the lands on leases of five years. (6) The plan and establishment of the new courts of justice, consisting of two superior courts at Calcutta; the one for the causes of property appealed, the other for criminal cases: and similar dependent courts in every district. (7) The removal of the Khalsa 4 from Murshidabad to Calcutta, the institution of a new council of revenue, and many other dependent arrangements. (8) A reformation of expenses, and an inspection into all the offices of Government, begun, but not completed for want of time. (9) Improvements in the police of Calcutta. (10) Changes in the military establishment, and regulations for the internal defence of the country. These are all I now recollect of the general regulations. Others of inferior concern, and the multitude of auxiliary institutions required to give effect to the great ones, I cannot enumerate. I will only add that by the translation of the Khalsa to Calcutta, by the exercise of the Diwani without an intermediate agent, by the present establishment and superintendency of the Nawab's household, and by the establishment of the new courts of justice, under the control of our own government, the authority of the Company is fixed in this country without any possibility of a competition, and beyond the power of any but themselves to shake it. The Nawab is a mere name, and the seat of government most effectually and visibly transferred from Murshidabad to Calcutta, which I do not despair of seeing the first city in Asia, if I live and am supported but a few years longer. At the same time, the suspension of the King's 5 tribute (which was a fatal drain to the currency of this country), the stoppage of Mahomed Reza Khan's and Shitab Rai's allowances, and the reduction of the Nawab's stipend, amount alone to an annual saving of fifty-seven lacs of rupees; and whenever we shall have our official reforms, now under charge 1 I.e. Deputyship to the Nawab. 2 Grandmother of the Nawab, who was a minor. 3 Financial management of the judicial system. of Nuncomar, the rival of Mahomed Reza Khan. 4 Treasury. 5 I.e. the Mogul's. 6 Gurdas was the son 6 £570,000. |