Mountstuart Elphinstone.

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

. (page 26 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 26 of 41)
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bread during the discussion, there is not likely to be
much needless complaint or affected delay.

This branch of the native system, therefore, is excel-
lent for the settlement of the disputes of the Eayats
among themselves ; but it is of no use in protecting
them from the oppression of their superiors, and it is
evident that the plan of leaving the people to them-
selves could never have been sufficient for that purpose.
But here another principle comes into operation. The"
whole of the Government revenue being derived from
the Piayat, it was the obvious interest of Government
and its agents to protect him, and prevent his being
exposed to any exactions but their own. The exactions
of Government were limited in good times by the con-
viction that the best way to enrich itself was to spare
the Kayats ; and those of its agents, by the common
interest of Government, and the Puiyats in restraining
their depredations. By these principles, while the
native Government was good, its Eayats were tolerably



352 REPORT ON THE TERRITORIES

protected both from the mjustice of their neighbours
and tyranny of their superiors, and that class is the
most numerous, most important, and most deserving
portion of the community.

It was in the class above this that the defects of the
judicial system were most felt, and even there they had
some advantages. As the great fault of Government
was its inertness, people were at least secure from its
over-activity. A Government officer might be induced
by a bribe to harass an individual, under colour of
justice ; but he could not be compelled, by the mere
filing a petition, to involve those under his jurisdiction
in all the vexations of a lawsuit. Even when bribed,
he could not do much more than harass the individual ;
for the right to demand a Panchayat was a bar to
arbitrary decrees, and although he might reject or
evade the demand, yet the frequent occurrence of a
course so contrary to public opinion could not escape
his superiors, if at all inclined to do justice.

The inertness of Government was counteracted by
various expedients which, though objectionable in them-
selves, supplied the place of better principles. These
were private redress, patronage, and presents. The
first occupies the same place in civil justice that private
revenge does in criminal among still ruder nations. It
is this which is called Tukkaza by the Mahrattas, and
which has already been mentioned as so important in
l)ringing on a trial. If a man have a demand from his
inferior, or his equal, he places him under restraint,
prevents his leaving his house, or eating, and even
compels him to sit in the sun until he comes to some
accommodation. If the debtor were a superior, the
creditors had first recourse to supplications and appeals
to the honour and sense of shame of the otlier party :
he laid himself on his threshold, threw himself on his



CONQUERED FROM THE PESHWA. 353

road, clamoured before his door, or lie employed others
to do all this for him : he would even sit down and
fast before the debtor's door, during which time the
other was compelled to fast also, or he would appeal to
the gods and invoke their curses upon the person l)y
whom he was injured. It was a point of honour with
the natives not to disturb the authors of these impor-
tunities, so long as they were just, and some satisfac-
tion was generally procured by means of them. If
they were unjust, the party thus harassed naturally
concurred with the plaintiff in the wish for a Pan-
chayat, and thus an object vv^as obtained which might
not have been gained from the indolence of the magis-
trate. Similar means were employed to extort justice
from the ruling power. Standing before the residence
of the great man, assailing him with clamour, holding
up a torch before him by daylight, pouring water,
without ceasing, on the statues of the gods. These
extreme measures, when resorted to, seldom failed to
obtain a hearing, even under Baji Eav, and there was
the still more powerful expedient, both for recovering a
debt or for obtaining justice, to get the whole caste,
village, or trade, to join in performing the above cere-
monies until the demand of one of its members were
satisfied.

The next means of obtaining justice was by
patronage. If a poor man had a master, a landlord,
a great neighbour, or any great connection, or if he
had a relation who had a similar claim on a groat man,
he could interest him in his favour and procure his
friendly intercession with the debtor ; his application
to the friends of the latter, or finally his interest with
the public authority, to obtain justice for his client.
This principle was not so oppressive as it seems at
first sight, or as it must have been if it had been



354 REPORT ON THE TERRITORIES

partial, for it was so extended that scarcely any man
•was without some guardian of his interests. Both
sides in a cause were thus brought nearly equal, and
the effect of the interference of their patrons was to
stimulate the system, which might otherwise have
stood still.

If this resource failed, a present or the promise of a
present to the public authority or those who had
weight with him would be efficacious. The fee of one-
fourth of all property gained in lawsuits was, in fact,
a standing bribe to invite the assistance of the magis-
trate.

The number of persons who could grant Panchayats
also expedited business. Besides the Nytiyadhish and
the numerous Mamlatdars and Jahagirdars, many people
of consequence could hold Panchayats under the express
or implied authority of the Peshwa, and every chief
settled the disputes of his own retainers, whether
among themselves or with others of the lower and
middle classes. A great number of disputes w^ere
also settled by private arbitration, and their proceed-
ings, in the event of an appeal, were treated by the
Government with the same considerations as those of
Panchayat held under its own authority.

Thus some sort of justice was obtained, and it was
less impure than might be expected, from the sources
by which it was supplied, because public opinion and
the authority of the magistrate set bounds to Tukkaza,
and the institution of Panchayats was a restraint on
patronage and bribery.

The Panchayat itself, although in all but village
causes it had the defects before ascribed to it, possessed
many advantages. Though each might be slow, the
number tliat could sit at a time, even under the superin-
te2idcnce of one person, nmst liave enabled them to



CONQUERED FROM THE RESIIWA. 355

decide many causes. The intimate acquaintance of
the members with the subject in dispute, and in many
cases with the characters of the parties, must have
made their decisions frequently correct ; and it was an
advantage of incalcuhible vahie in that mode of trial
that the judges, being drawn from the body of the
people, could act on no principles that were not
generally understood, a circumstance which, by prevent-
ing uncertainty and obscurity in the law, struck at the
very root of litigation. The liabilitj^ of Panchayats to
corruption was checked by the circumstance that it did
not so frequently happen to one man to be a member
as to make venality very profitable, while the parties
and the members being of his own class he was much
exposed to detection and loss of character. Accord-
ingly, the Panchayat appear, even after the corrupt
reign of Baji Rav, to have retained in a great degree
the confidence of the people, and they do not appear to
have been unworthy of their good opinion. All the
answers to my queries (except those of the collector of
Ahmednagar) give them a very fovourable character ;
and Mr. Chaplin, in particular, is of opinion that in
most instances their statement of the evidence is suc-
cinct and clear, their reasoning on it solid and perspi-
cuous, and their decision, in a plurality of cases, just
and impartial.

Their grand defect was procrastination, and to
counteract it the suitors had recourse to the same
remedies as with people in power — importunity, inter-
cession of patrons, and sometimes, no doubt, to pro-
mises, fees, and bribes.

It is impossible to form very clear notions on the
general result of this administration, cither as

. . General result.

to its despatch of causes, the degree of justice
actualty administered by it, or its efifect on the cha-






356 REPORT ON THE TERRITORIES

racter of the people ; but I should conjecture that simple
causes were speedily decided, and complicated ones
very slowly. The Nyayadhish principally tried the latter
description, and in twenty years it filed less than 1,400
causes, of which it is believed that one-half were never
decided. Panchayats appear generally to have given
just decisions, but men in power could obstruct a refer-
ence to those assemblies, and could prevent the execu-
tion of their decrees. That justice w^as often denied,
or injustice committed, appears from the frequency of
Thullee, which is a term for robbery, arson, and even
murder, committed to oblige a village or Government
officer to satisf}^ the claims of the perpetrator. This
crime is commonest to the southward of the Krishna, but
murders on account of disputes about landed property
are everywhere frequent. With regard to its effect on
the character of the people, the Eayats seem in most
respects simple and honest, but there is no regard for
truth or respect for an oath throughout the whole com-
munity ; and forgery, intrigue, and deceit are carried
to the highest pitch among the Patils, Kulkarnis,
and all who have much opportunity of practising those
iniquities. There is no punishment for perjury or
forger}^ In the annexed award of a Panchayat (No. 2),
it appears that thirty-three persons entered into an
engagement to swear to anything that one of the parties
might dictate, and for this complicated offence they
were mildly reprimanded by the Nyayadhish. Litigious-
ness does not seem to have been at all prevalent, unless
the obstinacy with which people adhered to any claims
to landed property can be brought under that head.
Comparison of Sucli arc thc advautagos and disadvantages
of'' the ''"S of the native administration of justice which
of'ti.rA.iai-.T are to be weighed against those of the plan
adopted in our provinces. If we were obliged to take



CONQUERED EROM THE PESIIWA. 357

them as they stood under the Native Government, the
scale would probably soon be turned ; but as it is pos-
sible to invigorate the system and to remove its worst
abuses, the question is not so easily decided. The most
striking advantages in our plan appear to be — that the
laws are fixed, and that as means are taken to promul-
gate them they may be known to everyone ; that the
decisions of the Adalat, being always on fixed prin-
ciples, may always be foreseen ; that there is a regular
and certain mode of obtaining redress ; that the decision
on each separate case is more speedy than in any native
court, and that it is more certain of being enforced ;
that justice may be obtained by means of the Adalat,
even from officers of Government, or from Government
itself; that the judges are pure, and their purity and
correctness are guarded by appeals ; and that the
whole system is steady and uniform, and is not liable
to be biassed in its notions by fear or affection, policy
or respect.

On the other hand, it appears that although the regu-
lations are promulgated, yet, as they are entirely new to
the people of India, a long time must pass before they
can be generally known, and as both they and the de-
cisions of the Court are founded on European notions,
a still longer period must elapse before their principles
can be at all understood ; that this obscurity of itself
throws all questions relating to property into doubt, and
produces litigation, which is further promoted by the
existence of a class of men rendered necessary by the
numerous technical difficulties of our law, whose sub-
sistence depends on the abundance of lawsuits ; that by
these means an accumulation of suits takes place, which
renders the speedy decision of the x\dalat of no avail ;
that the facility given to appeals takes away from the
advantage of its vigour in enforcing decrees, and renders



358 REPORT ON THE TERRITORIES

it on the whole, in many cases, more feeble and dilatory
than even the Panchayat, while in others it acts with a
sternness and indifference to rank and circumstances
very grating to the feelings of the natives ; that its
control over the public officers lessens their power
without removing the principle of despotism in the
Government, or the habits engendered by that principle
in the people, and that by weakening one part of the
machine without altering the rest, it produced derange-
ment and confusion throughout the whole ; that the
remoteness of the Adalat prevents the access of the
common people, and that if Munsiffs with fees. Vakils,
etc., be adopted to remedy this evil, they are not exempt
from the corruption of the native system, while they
occasion in a remarkable degree the litigious spirit
peculiar to ours.

This view of the Adalat is taken from the reports
drawn up in Bengal, and it is possible that many of the
defects described may originate in the revenue system,
in the voluminousness of the regulations, or in other
extrinsic circumstances ; a supposition which appears to
be supported by the state of the Courts under Bombay,
where most of the evils alluded to are said to be still
unfelt. But enough will remain to satisfy us that the
chance of attaining cr approaching to perfection is as
small under our own plan as under that of the natives ;
that on cither plan we must submit to many incon-
veniences and many abuses ; and that no very sudden
improvement is to be looked for in the actual state of
things. If this be the case, it becomes of the first con-
sequence to cherish whatever there is good in the exist-
ing system, and to attempt no innovation that can injure
the principles now in force, since it is so uncertain
whether we can introduce better in their room.

I i)ro2^ose, therefore, that the native system should



CONQUERED FROM THE PESIIWA. 359

still be preserved, and means taken to remove its
abuses and revive its energy. Such a course will be
more welcome to the natives than any entire change,
and, if it should fail entirely, it is never too late to
introduce the Adalat.

It is now, however, practicable for us to keep up the
native plan entirely unchanged. In removing abuses
we destroy the moving powers of Takkaza, j^ rovement
patronage and presents, and we must look thlffi^tratta
out for others to supply their place. For this ^^^^'''^■
purpose we may hope to have more purity, more
steadiness, and more energy, than the Native Govern-
ment; and I think we can scarcely fail to place the
people in a better situation, with respect to justice, than
that in which we found them. Such a change in the
mere administration of the law will probably in time
improve the character of our subjects, and admit of a
gradual improvement in their radical principles ; but it
seems desirable that such improvement should be so
slow as to allow the amelioration of the society to keep
pace with that of the laws, and thus escape the evil of
having a code unsuitable to the circumstances of the
people, and beyond the reach of their understanding.

Our principal instrument must continue to be the
Panchaj^at, and that must continue to be exempt from
all new forms, interference, and regulation, on our part.
Such forms would throw over this wxll-kuown institu-
tion, that mystery which enables litigious people to
employ courts of justice as engines of intimidation
against their neighbours, and which renders necessar}-
a class of lawyers who among the natives are the great
fomenters of disputes.

Another objection to forms is, that they would deter
the most respectable people from serving on Panehayats.
The indolence of the natives, the aversion to form and



36o REPORT ON THE TERRITORIES

restraint, their hatred of novelties, and their dread of
getting into difficulties in an unknown course of pro-
ceeding, and thus exposing themselves to our supposed
strictness, would be sufficient to prevent any honest
Patil from calling a Pancha^'at, or any disinterested
inhabitant from serving as a member ; but it is only
the honest who would be thus deterred : those who
looked to profit through fraud would run a little risk in
pursuit of their selfish designs, and would study our
new laws so as to qualify themselves to evade them.

The Patil should be encouraged, as at present, to
settle disputes amicably, if he can, and otherwise to
refer them to Panchayats, on the old model.

No papers should be required from those bodies but
a Eajianamci (or consent) by the parties to the arbi-
tration of the members, and a Saraunsh (or decision)
as concise as they choose to make it. When these two
papers can be produced, the decision should be final,
unless in case of corruption or gross injustice. When
those papers are wanting, the cause must be considered
as still liable to investigation, but no censure is to be
passed on the Panchayat for failing to produce them.
When a Patil refuses to grant a Panchayat, the Mam-
latdar may, on complaint, direct him to afford one ;
and if either party object to a Panchaj^at in his own
village, the Mamlatd;ir shall be at liberty to order one
at his own residence, or at any other village, as I
believe was practised by the Mahratta Government.
But unless both parties give their free consent to the
arrangement proposed by the Mamlatdiir, that officer
must report the case to the collector, and await his
orders.

Ai)peals from village Panchayats should be made to
the collector, who, if he thinks the Panchayat has not
been freely chosen, or that it has not fully decided ; or



CONQUERED EROM THE PES II W A. 361

if on a summary inquiry he discovers any gross error
or injustice, or sees p,'ood ground to suspect corruption,
may order a new Pancluiyat, either at the original
village, or elsewhere. In this inquiry the collector
can of course direct the Mamlatdur to make any local
investigation that may he necessary, and he can employ
his assistant, or an Amin, either in conducting the
summary inquiry, or in superintending the second Pan-
cliayat : hut he ought on no account to go into an
inquiry in any ordinary case merely because the
Panchayat appear to him to have decided erroueousty ;
the object of this appeal being rather to watch over the
purity of the courts, than to amend their decisions.
The appeal ought to be to the collector, rather than to
the MamlatdAr, to prevent that officer either quashing
complaints, or needlessly drawing up causes from the
village tribunals to his own.

These rules wdll provide for the adjustment of dis-
putes among villagers, but there are many mercantile
and other persons vvho reside in towns, and are not
subject to the authority of any Patil, For these
persons another plan must be adopted. AVheu they
belong to trades, the Slieti, or head of the trade, may
perform the functions performed by the Patel, in
summoning a Panchayat, with the consent of the
parties, and when these means are insufficient a com-
plaint may be made to the Mamlatdar, who, if he
cannot accommodate the matter, cither by his own
interposition or a Panchayat agreed to by both parties,
must report it to the controller, who will authorize a
Panchayat of persons of the same order. When the
parties leave the nomination of these Panchayats to
the Mamlatdar, or other officer of Government, he
cannot be too careful to select the members, so as to
make attendance as little onerous as possible. Persons



362 REPORT ON THE TERRITORIES

unemployecl ought to be preferred to men in business,
and the whole to be managed as much on the principle
of rotation as the disposition of the parties may admit.
The objection of the parties to any member ought, how-
ever, to be alwaj^s attended to, and if they show a
disinclination to the persons proposed by the Govern-
ment agent, they ought to be allowed to name four
respectable people themselves, who ought to chose a
fifth as an umpire. If the members cannot agree, the
umpire must be named by the Government officer.

In very large towns the superintendence of these
Panchayats may be too much for the Mamlatdilrs to
undertake, and it will therefore be found necessary to
nominate officers (to be called Amins, or whatever
name has hitherto been in use among the Mahrattas)
expressly for the administration of justice. There
might be one to every Mamlatdar's district, or one to
every two ; but it ought first to be tried whether the
Mamlatdars are sufficient to keep down the business, as
the institution of so many dispensers of justice, besides
the revenue officers, will certainly be new, and its effects
on the Panchayats and on the people cannot be clearly
foreseen ; some means, must, however be found out to
make up, in Puna especially, for the numerous chiefs and
ministers who formerly used to assemble Panchayats.
For this purpose, I think, there ought to be three native
judges at Puna with salaries amounting to 200 rupees
each, and three of inferior rank with inferior salaries,
who should receive complaints referred to them by the
collector, and submit them to Panchayats, or decide
them themselves, when both parties consented to that
mode of adjustment.

In such cases as the collector should expressly pre-
scribe, causes to be tried by Panchayats might be
shaped by the Amin in such a manner that the



CONQUERED FROM THE PES II W A. 363

pleadings, documents, and evidence might all be brought
at once before the Pancliayat, and the cause decided at
one sitting, unless the Panchayat should call for more
.information.

In causes decided by the Amin alone, an appeal
should lie to the collector, who might always, or on all
reasonable grounds, order a Panchayat to try the case
anew.

The higher class of Amins might try causes to
any amount, but the second class should be limited to
200 rupees. The collector might in all cases call up
such causes as he thought of great importance to be
tried before him or his assistants. The Shastri to
each collector might be an Amin, and might receive
an addition to his salary on that account.

In each of the large towns, perhaps two in each
district, besides Puna, there might bo an Amin, with
powers onlj^ to grant Panchayats when agreed to by
both parties, and to settle such causes as the parties
might agree in writing to refer to his decision ; but
wherever there was a dispute about the mode of trial,
he ought to take the orders of the collector.

The Amins in the towns might have 150 rupees a
month, and all the Amins might have a certain
addition to their salary for every twenty causes decided
by them, or by Panchayats under their direction. The
expenses might be defrayed from fines, hereafter to be
mentioned; but the connection between their allowances
and the fund from which they are drawn ought not to
be made apparent to the Amin.

To complete the administration of justice references
might be made on all doubtful questions of Hindu law
to the principal Shastris, who receive pensions, or
Warshashans. The selection in each reference might
be left to the commissioner, as was the practice with



364 REPORT ON THE TERRITORIES

the natives, or a small addition might be made to the
salary of a certain number, who might be constituted
regular authorities, to decide on points of law.

Appeals ought to be received from the Amins on the
principle above mentioned, and in the same manner the
commissioner should receive special appeals from the
collectors, not with a view to revise their decisions on
each case, but to give him an opportunity of ascertain-
ing that his instructions are acted up to, and that the
custom of the country is not departed from.

It is chiefly by this superintendence that we can
hope to purify and invigorate the native system, so as
to convert it from a mere engine of oppression into an
instrument for a more extensive dispensation of justice
than exists even in our own old provinces.

It is indispensable on this principle that the collector
should give audience, for at least two hours every da}',
to all ranks, receive complaints viva voce, and grant
decisions and orders on Mamlatdars, as the cases
require. If he confine himself to receiving petitions in
writing, it is impossible that he should have time to
become acquainted with the state of things in his



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 26 of 41)