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1772.

them inadmissible; and came speedily to the resolution of putting up the lands CHAP. I. to public auction. It was necessary to ascertain with as much exactness as possible the nature and amount of the different taxes which were to be offered to sale. For this purpose a new hustabood or schedule of the taxes was formed. The exactions consisted of two great parts; of which the first and principal was called assall, or the ground rents; the second aboabs, which consisted of a variety of additional, often arbitrary, and uncertain imposts, established at different times, by the government, the Zemindars, the farmers, and even the inferior collectors. Some of the most oppressive of these were abolished, and excluded from the present schedule. And new leases or titles were granted to the ryots; which enumerated all the claims to which they were to be subject; and forbid, under penalties, every additional exaction. When the Zemindars, and other middlemen of ancient standing, offered for the lands which they had been accustomed to govern, terms which were deemed to be reasonable, they were preferred; when their offers were considered as inadequate, they were allowed a pension for their subsistence, and the lands were put up to sale.

While the settlement, in other words the taxation of the country was carrying into execution upon this plan, the principal office of revenue, or Khalsa, underwent a total revolution. So long as the veil of the native government had been held up, this office had been stationed at Moorshedabad, and was ostensibly under the direction of the sort of minister of revenue, whom, under the title of Naib Duan, the President and Council had set up. It was now resolved to transfer this great office from Moorshedabad to Calcutta; and to place it under the immediate superintendance of the government. The whole Council were constituted a Board of Revenue, to sit two days in the week, or, if necessary, more. The Members of the Council were appointed to act as auditors of accounts, each for a week in rotation. The office of Naib Duan, which had been held by Mahomed Reza Khan at Moorshedabad, and by Shitabroy at Patna, was abolished; but a native functionary, or assistant duan, under the title of roy royan, was appointed to act in the Khalsa as superintendant of the district duans, to receive the accounts in the Bengal language, to answer interrogatories, and to make reports.

The fundamental change produced in that great and leading branch of Indian 2. Administra tion of justice.

* Extract of Proceedings, Sixth Report, ut supra. See also Sixth Report of the Select Committee of 1782, Appendix, No. i.; Colebrooke's Supplement to Digest of Bengal Regulations, p. 174-190; and the Fifth Report from the Select Committee of the House of Commons, in 1810, p. 4, 5.

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1772.

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BOOK V. administration which concerned the revenue, rendered indispensable a new provision for the administration of justice. The Zemindar, who was formerly the great fiscal officer of the district, commonly exercised both civil and criminal jurisdiction within the territory over which he was appointed to preside. In his Phousdary, or criminal court, he inflicted all sorts of penalties; chiefly fines for his own benefit; even capital punishments, under no further restraint, than that of reporting the case at Moorshedabad before execution. In his Adaulut, or civil court, he decided all questions relating to property; being entitled to a chout, or twenty-five per cent., upon the subject of litigation. His discretion was guided or restrained by no law, except the Koran, its commentaries, and the customs of the country, all in the highest degree loose and indeterminate. Though there was no formed and regular course of appeal from the Zemindary decisions, the government interfered in an arbitrary manner, as often as complaints were preferred, to which, from their own importance, or from the import ance of those who advanced them, it conceived it proper to attend. To the mass of the people these courts afforded but little protection: The expense created by distance, excluded the greater number from so much as application for justice: And every powerful oppressor treated a feeble tribunal with contempt. The judges were finally swayed by their hopes and their fears; by the inclinations of the men who could hurt or reward them. Their proceedings were not controuled by any written memorial or record. In cases relating to religion, the Cauzee and Brahmen were called to expound, the one the Moslem, the other the Brahmenical law; and their opinion was the standard of decision. Originally questions of revenue as well as others belonged to the courts of the Zemindars; but a few years previous to the transfer of the revenues to the English, the decision of fiscal questions had been taken from the Zemindar, and given to an officer styled the Naib Duan, or fiscal deputy, in each province.

Beside the tribunals of the districts; the capital was provided with two criminal courts; in one of which, called roy adaulut, the Nazim, as supreme magistrate, tried capital offences; in another, a magistrate called the Phousdar tried offences of a less penal description, and reported his proceedings to the Nazim. At the capital was also found the principal duanee or fiscal court; in which the Duan tried causes relating to the revenue, including all questions of title to land. All other civil causes were tried at the capital in the court of the Darogo adaulut al alea; except those of inheritance and succession, which were decided by the Cauzee and Muftee. An officer, with the title of Mohtesib, superintended the weights and measures, and other matters of police.

Generally speaking, the courts of justice in India were instruments by which CHAP. I. the powerful performed oppression, at their pleasure, on the weak.

Under the ancient government, the English, as well as other European settlers, instead of demanding payment from a reluctant debtor through the courts of law, seized his person and confined it, till satisfaction was obtained. Nor was this so inconsistent with the spirit of the government, as often to excite its displeasure. It was indeed a remedy to which they were not often obliged to recur; because the profit of dealing with them generally constituted a sufficient motive to punctuality. After the power of the English became predominant, the native courts ceased to exert any authority over Englishmen and their agents.*

The first attempt which had been made by the English to remedy in their new dominions any of the defects in the administration of justice, was the appointment in 1769 of superintending commissioners to the several districts with directions to inquire into the proceedings of the courts of justice, to restrain iniquitous proceedings, to abolish the chout, and, where a total change should appear desirable, to apply to government for the requisite powers. In 1770, the Naib Duan, and such of the servants of the Company as had their station of service at Moorshedabad, were formed into a Council of Control over the administration of justice. It was to be administered still, on the ancient and established plan; but the Council of Control should interpose as they perceived occasion; every judicial proceeding which concerned the government should come under their review; the trials should be transmitted to them in all criminal cases, and execution suspended, till their opinion was known; all causes relative to the revenue and to property in land should in the first instance be tried in the native courts, but the Council should revise the proceedings of these courts, and have the power of final determination.

For supplying the place of the native courts, in a great measure superseded by the new system of revenue; and providing a more perfect judicial establishment; the following scheme was invented and pursued. Two courts, a civil and a penal, were appointed for each district. The criminal court, styled Phousdary Adaulut, consisted of the collector, as superintendant, with the cauzee and muftee of the district, and two Mohlavies, as interpreters of the law. The civil court, stiled Mofussul Duanee Adaulut, consisted of the collector, as President, assisted by the provincial duan and the other officers of the native court. From

For this sketch of the state of the administration of justice în Bengal, see the Seventh Report of the Committee of Secrecy in 1773.

1772.

BOOK V. the jurisdiction of this tribunal no cases were excepted, beside those of succession to Zemindaries and Talookdaries, reserved to the President and Council.

1772.

At the seat of government were also established two supreme courts of appeal. That to which the civil branch of this appellate jurisdiction was consigned received the name of Suddur Duanee Adaulut; and was composed of the President with two Members of the Council, attended by the duan of the Khalsa, and certain officers of the Cutchery, or native court of the city. That on which the penal branch was conferred, obtained the title of Nizamut Suddur Adaulut. It consisted of a chief judge, entitled Darogo Adaulut, assisted by the chief Cauzee, the chief Muftee, and three Mohlavies. This Judge was nominated by the President and Council, who in this case acted in the capacity of Nazim. All capital cases were reported to his tribunal; and, after review, were ultimately referred to the Governor General and Council. After a short experience, however, the superintendance of this court appeared to impose a labour, and to involve a responsibility, which the Governor and Council found it inconvenient to sustain; it was one of the first transactions therefore of the new government which succeeded in 1774 to restore this part of the nizamut to the nominal Nabob, and to carry back the tribunal to Moorshedabad.*

For the district of Calcutta, two courts were established, on the plan of the other district courts; in each of which a Member of Council presided in rotation. In all these courts, it was ordained that records of proceedings should be made and preserved. The chout, or exaction, of a fourth part of all litigated property, for the benefit of the Judge, was abolished. A prohibition was issued against exorbitant fines. The discretionary power, exercised by a creditor over the person of his debtor, was no longer tolerated. And all disputes of property not exceeding ten rupees, were referred to the head farmer of the pergunna or village precinct, to which the parties belonged.†

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*Fifth Report, Committee 1810, p. 6. It would appear however, from Hastings' Minute, 21st November, 1775 (Fifth Report of Committee of Secrecy in 1782, Appendix, No. clvii) that Hastings was averse to the entrusting of a native with the uncontrouled administration of criminal justice, and that it was the act of that hostile majority of the Council, by whom Mahomed Reza Khan was in 1775 raised to the office of Naib Nazim. It is necessary at the same time to state, that the gentlemen of the majority (see their letter of the same date, Ibid.) declare that previous to this measure of theirs, "the administration of criminal justice throughout the country was at a stand."—It was at a stand, while under the superintendance of the English rulers: What was it likely to be, under a creature, without one atom of power, having the name of a Nabob?

+ Seventh Report, ut supra; General Regulations, dated 15th August, 1772; Colebrooke's Supplement, p. 1.; Fifth Report from the Select Committee on India Affairs, 1810, p. 6.

tions.

1772.

In the introduction of these measures a specimen is exhibited of the regard CHAP. I. which was paid to the feelings or honour of the natives, how great soever their rank or deservings. Under the anxious search of the Directors for the cause Conduct disof their intense disappointment in the receipt of treasure from the revenues of played toward the natives of Bengal, after venting the first portion of their chagrin upon their European, they highest rank, in effecting seem to have turned it, with still greater want of consideration, upon their these innovanative agents. In a letter from the Secret Committee, to Mr. Hastings, their President, dated 28th of August, 1771, they say, "By our general address you will be informed of the reasons we have to be dissatisfied with the administration of Mahomet Reza Cawn, and will perceive the expediency of our divesting him of the rank and influence he holds as Naib Duan of the kingdom of Bengal.” Mr. Hastings is then directed," to issue his private orders for the securing the person of Mahomet Reza Cawn, together with his whole family, and his known Mahomed partizans and adherents," and for bringing them prisoners to Calcutta. For the secrecy, the precipitation, and the severity (arrest and imprisonment to a man of that rank in India is one of the most cruel of all punishments) the reason assigned was, that otherwise he might "render all inquiry into his conduct ineffectual, and ill-consequences might result from his resentment and revenge." In the endeavour to discover delinquency, they say, "Your own judgment will direct you to all such means of information as may be likely to bring to light the most secret of his transactions. We cannot, however, forbear recommending to you, to avail yourself of the intelligence which Nundcomar may be able to give respecting the Naib's administration: and while the envy which Nundcomar is supposed to bear this minister may prompt him to a ready communication of all proceedings which have come to his knowledge, we are persuaded that no scrutable part of the Naib's conduct can have escaped the watchful eye of his jealous and penetrating rival.” *

The opinion which the Directors entertained of the man of whom they desired to make such an instrument, had, on a former occasion, been thus expressed: "From the whole of your proceedings with respect to Nundcomar, there seems to be no doubt of his endeavouring by forgery and false accusations to ruin Ram Churn; that he has been guilty of carrying on correspondence with the country powers, hurtful to the Company's interests; and instrumental in conveying letters between the Shazada and the French Governor-General of Pondicherry: In short, it appears, he is of that wicked and turbulent disposition, that no

* See the Letter, Minutes of Evidence on the Trial of Warren Hastings, Esq., p. 993.

Reza Khan.

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