Blackwood's Edinburgh Magazine, Vol. 76, No. 466, August, 1854

by Various

The great reproach attaching to it was the insufficient employment of natives, and the exclusive occupation by the Civil Service of the higher judicial posts. Now, we hope to make it clear, by a brief explanation, that the correction of both of these evils might more easily have been effected under the Cornwallis system, than under that by which it has been superseded. There are, as we have remarked at the outset of this article, questions of difficult solution inseparable from conquest; among which, that of the degree of trust to be reposed in the conquered is perhaps the greatest.

Where attachment can hardly be presumed to exist, some reserve in the allotment of power appears to be dictated by prudence; and to fix the amount of influence annexed to an office to be filled by one of the subjugated, so as to render its importance and respectability compatible with the supremacy of the ruling race, is far from being so easy as those imagine who, in their reliance on certain general principles of supposed universal application, leave national feelings and prejudices out of account in making up their own little nostrums for the improvement of mankind.

Under the Cornwallis system, there was an office which, though then always filled by a member of the Civil Service, seemed, in the limitation as well as the importance of its duties, to be exactly suited for natives to hold. When the civil file of a district became overloaded with arrears, the government used to appoint an officer to be assistant or deputy judge. To him the regular judge of the district was empowered to refer any cases that he thought fit, though there his power ceased, as the appeal lay direct to the provincial court from the award of the deputy.

The deputy being made merely a referee without original jurisdiction, was a wise provision for keeping the primary judicial power in the hands of the officer charged with the preservation of the peace of the district, while importance and weight were given to the office of the deputy, by making the appeals from his decisions lie to the Provincial Court, and not to his local superior. A single little law of three lines, declaring natives of India to be eligible to the office of Deputy Judge, would, by throwing a number of respectable situations open to their aspirations, have provided for their advancement, without any disturbance of institutions to which the people of the country had become accustomed and reconciled. Again, as to the monopoly of higher judicial office by members of the Civil Service, the Cornwallis system, perhaps, provided a readier means of abating even this grievance than will be found in that by which it has been supplanted.

Nothing can be more extravagant than the scheme of sending out barristers from Westminster Hall, to undertake, without any intermediate training, the management of districts in Bengal and Hindostan. Sir William Jones himself, unintelligible as he was, on his first arrival, to the natives of India, would have failed if he had undertaken such a task. This visionary proposal has happily received its coup de grace from Sir Edward Ryan, the late Chief Justice in Bengal, in his evidence before the Commons’ Committee; but it does not, in our opinion, follow that the aid of lawyers trained in England is therefore to be altogether discarded in providing for the administration of justice in India. Although the man fresh from England would be sadly bewildered if left by himself in a separate district, it does not follow that he should not, after some preparatory training, be able to co-operate vigorously with others. The horse will go well in double-harness, or in a team, who would upset a gig, and kick it to pieces.

If barristers chose to repair to Bengal, and, while there practising at the bar of the Supreme Court, would study the native languages, it appears to us that, on their proficiency being proved by an examination, they might have been advantageously admitted, under certain limitations as to number, into the now abolished Provincial Courts.

Had these experimental provisions in favour of natives of India, and barristers from England, been found to succeed, their eligibility to every grade in the judicial branch of the service might have been proclaimed, and the most plausible of all the complaints against our system of Indian government would thus have been removed. But improvement without change was not to the taste of those by whom the last of our three administrative periods was ushered in; and in further confirmation of Mr Marshman’s remark, already cited, on the parallelism of movement in England and in India, it was in the changeful years 1830 and 1831 that a revolution was effected in our system of internal administration, which has since given a colour and a bent to our whole policy in the East. In the course of those two years the magisterial power was detached from the office of the judge, and annexed to that of the collector; the Provincial Courts were abolished, their judicial duties being transferred to the district judges, and their ministerial functions of superintendence and control to commissioners, each with the police and revenue of about half a dozen districts under his charge.

Two Sudder, or courts of ultimate resort, were established, one at Calcutta, the other at Allahabad in upper India; but all real executive power centred in the magisterial revenue department, presided over by two Boards, located, like the Sudder Courts, at Calcutta and Allahabad.

One of the new provisions then introduced abolished the office of Register, or subordinate Judge, held by young civilians conjointly with that of Assistant to the Magistrate. This was a most serious change, for it abolished the very situation in which young civilians received their judicial training, and fitted themselves for the better eventual discharge of the higher duties of the judicature.

The Registers used to have the trial of civil suits for property, if not more than five hundred rupees (£50) in value. The abolitionists urged the injustice of letting raw youths experimentalise upon small suits, to the supposed detriment of poor suitors. There was a show of reason in this mode of arguing; but those who used it did not give due weight to the consideration that these youths were to become the dispensers of justice to all classes, and that it was better for the country to suffer a little from their blunders at the outset, than to have them at last advanced to the highest posts on the judgment-seat without any judicial training whatsoever. But, in fact, the whole argument was based upon a mere assumption. The young Registers certainly committed occasional blunders, as old Justices and Aldermen, if we are to believe the daily papers, constantly commit them in England; but, on the whole, their courts were generally popular and in good repute among the natives. The young civilian had often a pride in his own little court of record, liked to know that it was well thought of, and was sometimes pleased to find parties shaping their plaints so as to bring them within the limits of his cognisance.