Mountstuart Elphinstone.

Selections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir online

. (page 25 of 41)
Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 25 of 41)
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discussion ; as bankers in a matter of account : Desh-
mukhs and Deshpandes when the suit was about land.
Their number was never less than five, but it has been
known to be as great as fifty. The number was re-
quired to be odd. It generally met at the house of the
officer who summoned it.

In villages the Patil got some of the most intelligent
and impartial Kayats to sit under a tree, or in the
Temple, or Choultri. Nobody attended on the part of
the Government ; and as the submission of the parties
was voluntary, their wishes were of course more
attended to than elsewhere. The consent of the mem-
bers, however, was everywhere reckoned essential to a
Panchayat ; and the first act of the meeting was to take
a Eajinama, or acknowledgment, of such a consent.
Securit}^ was also not unfrequeutly taken for the parties
complying with the award of the Panchaj^at. In petty
disputes in villages, the parties gave two straws in token
of submission, instead of a written Eajinama.

It might be expected that so burdensome a duty
would not be willingly undertaken, especially as there
was no authorized fee to be gained by it ; but besides
the compliment of being selected by the parties, there
was the hope of presents from one or both, which it
w^as not disgraceful to take, unless to promote injustice.
The parties likewise entreated the persons they wished
to accept the office, and the officer to Government



CONQUERED FROM THE PES II W A. 339

added liis authority. It was, moreover, reckoned dis-
gracefully selfish to refuse to serve on a Panchayat ;
and as the man who was asked to be a member to-day
might be a suitor to-morrow, he was obliged to afford
the assistance which he was likely to require. It was
rare, therefore, for people to refuse to serve, unless they
had a good excuse.

It was more difficult to procure their regular attend-
ance when appointed, and this was generally effected
by the entreaties of the party interested. The magis-
trate also sent peons and injunctions to compel the
presence of a person who had once agreed to become a
member; and although he would receive a reasonable
excuse, yet if he were really anxious for the speedy
decision of the cause, he seldom failed in procuring
attendance. Besides, there was no precision about the
number of members required to attend ; so long as the
parties were satisfied, all was thought to be regular
enough. When an absent member returned, the past
proceedings could be explained to him, and any further
inquiry he desired carried on.

When the Panchayat was assembled, if the defendant
failed to attend, the Panchayat applied to the officer
under whose authority it sat to summon him, unless a
Karkun or a Peon had already been attached to it, to
perform such duties on the part of the Government ; or
the plaintiff, by constant demands and other modes of
importunity, wearied him into submission. When the
officer of Government had to compel his attendance, he
sent a summons ; or, if that failed, placed a Peon over
him, whom he was obliged to maintain, and imposed a
fine of a certain sum a day till he appeared. The
plaintiff's complaint was then read, and the defendant's
answer received ; a replication and a rejoinder were
sometimes added, and the parties were cross-questioned

22 2



340 REPORT ON THE TERRITORIES

by the Panchayat as long as they thought it necessary.
At that time the parties were kept at a distance from
their friends, but afterwards they might assist them as
much as they chose. A man might, if it were incon-
venient for him to attend, send Karkun in his service,
or a rehition ; but the trade of a Vakil is not known :
accounts and other written evidence were called for
after the examination of the parties, and likewise oral
evidence when written failed ; but a great preference
was given to the evidence of written documents. The
witnesses seemed to have been examined and cross-
examined with great care, but the substance only of
their evidence w\as taken down briefly without the
questions, and generally in their own hand if they could
write. The natives have not the same deference for
testimony that we have ; they allow a witness no more
credit than his situation and character and connection
with the case entitle him to ; they also lay great stress
on his manner and appearance while giving his testi-
mony. Oaths were seldom imposed, unless there were
reason to suspect the veracity of the witness, and then
great pains were taken to make them solemn.

When this examination was concluded, the Pan-
chayat, after debating on the case, drew up an award
(which was termed Saraunsh or summary) in wdiich
they gave the substance of the complaint, and answer ;
an abstract of each of the documents presented on
either side ; a summary of the oral evidence on either
side, with their own decision on the whole. A copy of
the award was given to the successful party ; and to the
loser, if he required it ; another copy was deposited with
the officer of Government. In villages where was much
less form, the Panchayat was often conducted in the
way of conversation, and nothing was written but the
decision, and sometimes not even that. In important



CONQUERED FROM THE PESIIWA. 341

cases, however, all the usual writing was performed by
the Kulkarni.

Throughout the whole proceedings, the Panchayats
appear to have been guided by their own notions of
justice, founded no doubt on the Hindu law, and modi-
fied by the custom of the country. They consulted no
books, and it was only on particular points immediately
connected with the Hindu law, such as marriage, or
succession, that they referred to a Shastri for his
opinion.

On the report of the Panchayat, the officer of
Government proceeded to confirm and enforce its
decree : the Panchayat having no executive powers of
its own. From this cause frequent references to the
magistrate were required, and he was given a consider-
able influence on the progress of the trial.

If either party objected at this stage, and showed
good reasons why the award should be set aside, the
officer under whose authority it sat might require it to
revise its sentence, or even grant a new Panchayat ;
but this was not reckoned proper, unless corruption
were strongly suspected.

No other notice was taken of corruption, unless in
such cases the decision of a Panchayat was always
respected, as the proverbial expression of Pancli Par-
meshwar ('A Panchayat is God Almighty') fully testifies.

Even after an award was confirmed, an appeal lay to
a higher authority, and a new Panchayat might be
granted ; even a new Mamlatdiu' might revise the pro-
ceedings under his predecessor. This was probably a
stretch of power ; but everything under the Mahrattas
was so irregular and arbitrary, that the limits of just
authority can with difficulty be traced.

In enforcing the decision, much of course depended
on the power of the magistrate. If a Patil found the



342 REPORT ON THE TERRITORIES

party who gained the cause could not recover his due
by the modes of private compulsion, hereafter described,
he applied to the Mamlatdar to interpose his authority,
and in cases where that was insufficient the Mamlatdar
applied to the Government.

It was in this manner that ordinary disputes were
settled. Those about boundaries, which are extremely
frequent (except in Khandesh), were settled by a Pan-
chayat, composed of Deshmukhs, Deshpandes, Patils,
and Kulkarnis, assisted by the Mahars of the disputing
villages, who are the established guardians of land-
marks and boundaries. They are also very frequently
adjusted by ordeal, one mode of which is for the Patil
to walk along the disputed boundary, bearing on his
head a clod composed of the soil of both villages,
kneaded up with various strange ingredients, and conse-
crated by many superstitious ceremonies : if it hold
together, the justice of his claims is established ; and if
it break, he loses his cause. Many other sorts of
ordeal are also performed with boiling oil, or by taking
an oath and imprecating certain curses if it should be
false. If no evil occur within a fixed time, the gods
are conceived to have decided in the swearer's favour.

These ordeals were not uncommon in all cases, as
well as in boundary disputes, but chieflj^ when other
means of ascertaining the truth had failed.

Disputes about caste were settled by the caste, unless
when a complaint of unjust expulsion took place, when
the Government ordered a Panchayat of respectable
persons of the caste from an unprejudiced part of the
country.

As it has been shown that Panchayats had no powers
panc)iayatH, of tliclr owu, aud wcrc moreover somewhat

how iUiHCtllblcd ; • L • L • 1 •!! !•

and their mcrt, it IS ucccssary to examme the machmory
enforced, by wliicli tlicy were kept in motion, and their



CONQUERED FROM THE PESHWA. 343

resolutions carried into effect. It lias been observed,
that in the country the Mamlatdurs, and the Patils
under their authority, performed that duty. In some
few towns there also were officers of Justice, called
Nyayadhish. The proceedings of all these officers were
of course very irregular, but the model may be learned
by observing the proceedings of the Nyaj^adhish at
Puna, during the long period when Ram Shas-
tri was at the head of that Court, and when th^eTyVvudwsii
Nana Fadnavis was Minister and Eegent.
This was confessedly the period when the Mahratta
Government was in the highest perfection, and Ram
Shastri is to this day celebrated for his talents and
integrity. A full account of that Court is given by
Mr. Lumsden in his report of January 24th, from
which much of what follows is extracted. Ram Shas-
tri had several deputies, two of whom were almost as
famous as himself, and it was by their assistance chiefly
that his business was conducted.

On receiving a complaint, a Peon or a Karkun, from
Ram Shastri or from Nana Fadnavis, according to
the consequence of the person, was sent to summon or
to invite him to attend at Ram Shastri's. If this were
refused, positive orders were repeated by Nana Fadna-
vis ; and in the event of obstinate non-attendance, the
house or lands of the defendant would be sequestrated
till he appeared.

In case of non-appearance from absence, trial, after
many indulgent delays, went on, and the absence
of the party was recorded, that he might have a new-
trial on his return if he accounted for his absence ; in
cases of land, no decision was final in a man's absence.
Evidence was summoned in the same form as the de-
fendant ; and if the witness were poor, the person who
summoned him paid his expenses. If the witness lived



344 REPORT ON THE TERRITORIES

at a distance, or if attendance were inconvenient, a
deputation from the Court, with some person from the
parties, was sent to take his evidence, and the Mam-
latdar gave his aid to the process ; or if the witness
Hved very far off, a letter was written, requesting him
to state the facts required. When the witness was a
man of rank, a deputation would be sent to him from
the Government, accompanied by parties who went as
supplicants for his aid rather than as checks on his
mis-statement, and he was solicited to relate what he
knew, which was repeated in the Court. Even if the
witness were not of such rank as to prevent his coming
to the Court, still if he were a man of any consequence,
he was received as a visitor, and the questions were put
to him in the way of conversation, and with all the
usual forms of civility.

When persons of this character were the defendants,
instead of summoning them to the Nyay.'idhish, a letter
was written by Nana Fadnavis, desiring them to settle
the complaint. If this did not succeed, the Vakil was
spoken to ; and ultimately they experienced the dis-
pleasure of Government, or part of their land was made
over to the creditor. Generally, however, great favour
was shown to men of rank. If the plaintiff was also
a man of rank, a Panchayat of men of the same con-
dition would be appointed if all other means failed.
One of the enclosed translations (No. 19) is an award
in a case where the ancestors of Juan Rav Nimbalkar,
a Jahagirdar of the highest rank, were the parties.

The proceedings were much the same as those I have
already mentioned to have been practised in the dis-
tricts, but more was done in writing than elsewhere.
To give a clear idea of the manner in which Panchayats
proceeded, I have the honour to enclose the award of
one conducted under the superintendence of Earn Shastri



CONQUERED FROM THE PESIIWA. 345

(No. 20) ; and decision in a simple case of the i)resent
da.y (No. 21).

The Pancliayats were more frequently named by the
parties than the judge ; but Ram Shnstri and liis
deputies seem frequently to have presided at the trial,
the Panchayat performing nearly the same functions as
a jury in England. A good deal of the investigation
seems to have been entrusted to Ram Shastri's Kar-
kuns, who reported to him and the Panchayat ; and in
the decree the names of the members of the Panchayat
are not mentioned, even when it is merely a repetition
of their award. The decision was always in the
Peshwa's name, and in all cases of magnitude required
his signature ; all cases relating to land were of this
description, and the same holds all over the country,
where claims to land are considered more immediately
under the superintendence of Government. It was not
unusual, in the country as well as in Puna, for a
Government officer to receive the complaint and answer
with the documents, and the written evidence of wit-
nesses, and lay the whole in this shape before the
Panchayat, who could call for more evidence if they
required it. Much time must have been saved by this
arrangement, but it gave the officer of Government
considerable opportunities of imposing on the Pan-
chayat. The members of the Panchayat received no
fee, but when they had much trouble the winner of the
suit made them openty a present for their pains.

A sum of money was likowiso levied for the Govern-
ment from the winner, under the name of Harki, which
I believe means congratulatory offering ; and from the
loser, under the name of Gunhegari, or fine. These
Gunhegaries varied with the means of litigants, but
in revenue accounts I observe that one-fourth of the
property is always put down as the price paid for
justice by the plaintiff when he wins his cause.



346 REPORT ON THE TERRITORIES

The plaintiff losing his cause was obliged to pay the
expenses of the defendant, if the latter were poor.

No regular monthly or other returns of causes de-
cided were made out.

When a cause was decided against the defendant, the
Court settled the mode of payment with reference to
his circumstances, either ordering immediate payment,
or directing payment by instalments, or granting the
debtor, if entirely destitute of the means of payment, an
exemption from the demands of his creditor for a certain
number of years.

When a matter had once come to a trial, it was
always expected that Government should enforce the
decision ; but with the irregularity so characteristic of
the Mahrattas, the plaintiff was often permitted to enforce
them himself; and this was effected by means of the
system called Takkaza, which, though it strictly means
only dunning, is here employed for everything, from
simple importunity up to placing a guard over a man,
preventing his eating, tying him neck and heels, or
making him stand on one leg, with a heavy stone on
his head, under a vertical sun.

It is remarkable that in all claims (except for land)
when the plaintiff has the power, this Tukkaza is the
first step in the suit ; and it is not until the person who
suffers by it complains of excessive or unjust Tukkaza,
that the Government takes any concern in the cause.
Tliis in some measure accounts for the ready acquies-
cence to defendants in the nomination of Panchayats,
etc., and it is indeed employed intentionally as a means
of accomplishing that end. When Government enforced
the debt, it used nearly the same severities as indivi-
duals ; it also seized and sold the property of the
debtor, luit generally spared his house, and took care
not to reduce liini entirely to ruin. It likewise often



CONQUERED FROM THE PESIIWA. 347

fixed instalments, by which his debt was gradiiallj^ to
be liquidated.

Peoj)le were never put in any public prison for private
debt, though sometimes confined or tormented by the
creditor at his house or in that of his patron, and in
rare cases when agreed on in the bond made to serve
him till the amount of their nominal wages equalled
that of the debt.

Fair bankrupts seem to have been let off pretty nearly
as with us. Fraudulent ones were made to pay when
discovered, notwithstanding previous release.

The great objects of litigation are stated in the replies
of the local officers to my queries to be : Boundary
disputes ; division of property on the separation of
fixmilies ; inheritance to land, which is perhaps the
greatest source of litigation throughout the whole
country, even in Khandesh, where waste land is so
abundant. Debts to bankers are also frequently subjects
for suits.

The judicial system, which has just been described, is
evidentl}' liable to great objections, and accordingly in the
best of times its success seems to have been

/. , rm IT Defects and

very imperfect. Ihere was no regular ad- abuses of

..... n • .- I • r. the system.

mmistration 01 justice : no certain means 01
filing a suit, and no fixed rules of proceeding after it
had been filed. It rested with the officer of Govern-
ment applied to, to receive a complaint or to neglect it
altogether. The reception of an appeal from his in-
justice equally depended on the arbitrary will of his
superior. The other occupations of these officers ren-
dered it difficult for them to attend to judicial affairs
even if well disposed, and these occupations increasing
with the rank of the officer, the Peshwa (or the IMinister)
who was the mainspring of the whole machine, must
have been nearly inaccessible to all men, and entirely



348 REPORT ON THE TERRITORIES

SO to the poor. The power of the local officer must
also have had a tendency to check appeals, and even
to restrain the demand for Panchayats in cases where
he was desirous of deciding in person ; and this desire
^vould chiefly be felt in cases where he had an inclina-
tion to be the friend of one party, or where he hoped to
make something by selling his favour to both. In
short, there can be little doubt of the difficulty of get-
ting justice, unless by means of bribery or of powerful
friends.

The Panchayats themselves were open to corruption
and to partiality, and when free from those stains they
w^ere still slow and feeble in their motions and uncer-
tain in their resolutions. When the Panchayat was
assembled, which from its interference with the pursuits
and interests of the members must have been a matter
of difficult and rare occurrence, it had not sufficient
powers to seize the defendant, to summon the witnesses,
or to compel the production of documents ; in the event
of any opposition it must apply to the officer of Govern-
ment, and thus, besides unavoidable delay, it was
exposed to constant obstruction from his indolence and
want of leisure, and even from his corruption. If a
deputy of the Government officer sat with it to execute
those duties, it was still liable to be obstructed from
corruption, and was besides exposed to the influence of
the Kiirkun, who presided. When it had got possession
of the evidence, the members were not calculated to
decide on nice or intricate causes ; and if they were
perplexed they met without coming to a decision, or
allowed the matter to lie over until some circumstance
prevented the necessity of meeting any more. Very
great delay took place from these causes, and trials
were often left entirely unlinished. When members
were chosen by the parties and interested in their cause,



CONQUERED FROM THE PES 1 1 IV A. 349

they were rather advocates than jiulf^es, and their dis-
putes produced as much delay as the neglect of the
others. When they were impartial they were in-
different and irresolute, unless some member, and very
likely one who was stimulated into activity by a bribe,
took the trouble of deciding off the hands of his col-
leagues, and procured their consent to a decision of his
own. When their award was signed the Panchayat
dissolved, and their decree remained with the local
officer to enforce or neglect, as he chose. Where so
much was left arbitrar}^ there was of course much
corruption ; and it is very frequent now to have a
complaint from a man who has a decision of old
standing (even from the Nyayudhish at Puna) which
he has not been able to get enforced. Even when the
decree of a Panchayat was passed and executed, one
would think it must, from the way in which the
assembly was constituted, have had little good effect
beyond the case it had tried ; for as there was no
written law, and as Panchayats were composed of men
of different habits and conditions, their awards must
be supposed to have varied, so as to afford no great
certainty beforehand as to the decision to which any
Panchayat would come, and this uncertainty must have
led unceasingly to new litigation. All accounts, it
must be owned, agree in representing the knowledge of
the common people in the customary law of their
country, and consequently the uniformitj^ of their
decisions when formed into Panchayats, is far beyond
what could be expected ; but the inconvenience alluded
to must still, to a certain extent, have existed. The
want of principle in the rulers was another cause of
uncertainty and litigation. No decision was final; a
new Mamlatdar or a new Minister might take up a
cause his predecessor had decided ; the same man



350 REPORT ON THE TERRITORIES

might revise his o\w\ decisions from corrupt motives ;
and there was as much difficulty in being exempt from
an unjust revision, as it has ah'eady been shown there
was in obtaining a just one.

If this were the state of things under Nana Fadna-
vis, it was doubtless worse under Baji Eav. The
farming system made over each district to the highest
bidder, who was generally the most unprincipled man
about the Court ; and as full support was requisite to
enable him to pay his revenue, it consigned the people
to his oppression without a remedy. The farmer's
whole time and thoughts were occupied in realizing his
revenue. Justice was openly sold, and except as a
marketable commodity, it was never thought of. The
party in the wrong could always, by a bribe, prevent
his cause going to a Panchayat, or overturn the decision
of one. An appeal lay from the under-farmer to the
upper, whose income depended on the exactions of the
authorities below him ; and from him to the Minister,
who never received a complaint without a present ; or
to the Peshwa, who never received one at all. In
consequence the Government afforded little justice to
the rich, and none to the poor.

But with all these defects, the Mahratta country

flourished, and the people seem to have been exempt

from some of the evils which exist under our

thelfcMects more perfect Government. There must, there-

uiid abuses. /. i i -, . ■,

lore, have been some advantages m the system
to counterbalance its obvious defects, and most of them
appear to me to have originated in one fact, that the
Government, although it did little to obtain justice for
the people, left them the means of procuring it for
themselves. The advantage of this was particularly
felt among the lower orders, who are most out of reach
of their rulers, and most apt to be neglected under all



CONQUERED FROM THE PES II IV A. 351

Governments. By means of the Pancliayat, they were
enabled to effect a tolerable dispensation of justice
among themselves ; and it happens, that most of the
objections above stated to that institution do not apply
in their case.

A Patil was restrained from exercising oppression
both by the fear of the Mamlatddr and by the incon-
venience of offending the society in which he lived ; and
wdien both parties were disposed to a Pancliayat, he
had no interest in refusing his assistance to assemble
one. A Pancliayat can scarcely be perplexed in the
simple causes that arise under its own eyes, nor can it
easily give a corrupt decision when all the neighbours
know the merits of the case. Defendants, witnesses,
and members are all within the narrow compass of a
village ; and where all are kept from earning their daily



Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 25 of 41)