SIR EDWARD EAST'S SUGGESTED REFORMS IN INDIA.*

No. II.

Different Inhabitants of Calcutta.

THE inhabitants of Calcutta may, for judicial purposes, be classed into-1. British European subjects, and their legitimate descendants; 2. Hindoos, or Gentoos; 3. Mohammedans; 4. Other proper Natives of Asia, neither Hindoos, Mohammedans, nor Christians; 5. Portuguese, Armenian, and other Christians of native or foreign extraction, together with half-caste, or illegitimate Christian children of British subjects.

The situation of the first class is separately treated of in another paper. The Gentoos, (more commonly called Hindoos,) and Mohammedans, of the British dominion in India, may, for this purpose, be classed together; they are each to be governed as the statute 21 Geo. III. c. 70. enjoins, by their own laws of inheritance, succession, and contract, respectively, as between themselves. But many of these laws, formed in rude times, are imperfectly adapted to the modern growth of arts, knowledge, and civilization around them. The men and their manners have undergone more alteration than is generally suspected; but the laws, though construed as favourably as possible to meet this change, still remain in substance the same. Both codes, particularly the Hindoo, have multifarious rules enough; but almost every one has its contrarient construction, and its convenient loop-holes, for the strong and crafty to escape through, with as many avowed diversities as there are provinces: this leads to endless uncertainty and litigation.

A small portion of this evil in civil, and a much greater in criminal matters, has been mitigated in the provinces, where the Government has continued to exercise a legislative power, though cautiously exerted, to correct abuses, and to supply defects, when flagrant, especially in matters connected with revenue police. But ever since the appointment of the Supreme Court, and indeed, I believe I might say, ever since the institution of its predecessor, the Mayor's Court, in Calcutta, the Hindoo and Mohammedan civil codes have been stationary, and submitted to no' improvement, except such as was capable of being introduced by construction, under conflicting or silent authorities. Their criminal codes were entirely laid aside in the first instance. I should propose, that the local Government, with the sanction of the Supreme Court, should at least have the power to extend any original laws into Calcutta, or without modification, as parts of the Hindoo or Mohammedan

with

Continued from page 444 of the last Number.

Orier,al Herald, Vol. 16.

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codes, which the Government may have found it expedient to adopt in the Mofussil. What would be thought of governing the people of Great Britain, at this day, by the laws of the Heptarchy ?

Wills.

Added to this, the Hindoos have insensibly adopted some of our laws, without any authority, except the sanction of the Supreme Court giving effect to their acts. For instance, they now very generally dispose of their property by will; but the Supreme Court being restrained to give probate of wills, or grant administration of the effects, of British subjects only, (in the confined sense before noticed,) and the Hindoos having no place of deposit, like our Ecclesiastical Court, for the safe custody of their wills, there are numberless temptations to forgery, and ample time for the fabrication, according to circumstances. The executors are under no obligation to deliver schedules of the personal property upon oath, or accounts of their receipts, by which their fidelity may at any time be brought to the test, if necessary, except by the burthensome process of a suit in equity, which can seldom occur in time to have the desired full effect, nor without a previous dispute among the spoliators for a division of the spoil, (and the expense of which can only be borne by an estate of a certain magnitude,) consequently, women, infants, and absentees, have no adequate check upon such administrators of their properties, whom it is now extremely difficult to fix with the possession of personal, and sometimes even of landed property, at any distance of time, so many ingenious devices have they for covering such possession in other men's names. In all instances, the parties injured run great hazard in substantiating their claims, when all the documentary proofs are in the hands of their spoliators.

Many of the most respectable Hindoos with whom I have conversed on the subject, deplore this deficiency; and in a late instance, where the Government had reasonably refused to pay money to one who claimed to be the representative of a deceased Hindoo entitled to it, without assurance of his representative character, I could devise no better method, in justice to both parties, than to admit him, at his own request, to deposit the will, as in registry, with the registrar of the Supreme Court on the ecclesiastical side, and to administer a voluntary oath, at the Hindoo executor's request, verifying the will and his own representative character. But by way of precaution, and that no person might be induced by it to attribute a greater authority than belonged to such an act, I directed the registrar to draw up the verification in writing, which was to be given to the party by way of memorial of his claim as having been made voluntarily, and noting that the will was not registered, but voluntarily deposited as a registry. Regular authority, however, is clearly wanting to authenticate, and still more to establish, the duty of

registering Hindoo and Musulman wills; for purposes of property, something of this kind already exists in the Mofussil.

Marriage, Divorce, and Separation.

The Musulmans feel the want, at times, of a jurisdiction for the direct cognizance of their marriages, divorces, and separation, which have been heretofore dealt with in a very arbitrary manner by some of the Police Magistrates, for want of a better authority. The Hindoo customs seldom or ever give rise to such questions; or if these do arise, they are for the most part settled in foro domestico, though I have known attempts to enforce separation on the part of Hindoo women, by their parents and friends. The Judges are often solicited at chambers, particularly by Musulmans, to exercise this kind of jurisdiction, but know not by what authority it can be assumed; and I have therefore only interfered, and that but rarely, either as a mediator, or by referring such questions to the Cazis, who repudiate any express authority in themselves, except as referees by consent of parties, having no means of enforcing obedience to their judgments: the head Cazi, in particular, saying, upon my application to him for information, that the power of divorce and separation properly belongs only to the chief magistrate of the state, and is not exerciseable by inferior magistrates. A Musulman of high rank informed me, that he considered the authority of enforcing the Cazis' judgments as necessarily forming part of the supreme power of the state. But, in truth, it would be dangerous and unpolitic to give any of the Musulmans judicial authority without British control: it would soon be made an engine of barter. Hindoo, I fear, is remediless, on account of the rules of caste,

Interest of Money.

The

The British statute law of Queen Anne, limiting the rate of interest, and inflicting penalties on usury, does not apply to this place, being founded on local considerations at home; and the statute 13 Geo. III. c. 1. only restrains British subjects from taking more than twelve per cent. in India, which does not extend to Native inhabitants; and as these latter were not originally restrained in their contracts to any certain rate of interest, and these contracts are saved, as between themselves, by the 17th clause of the statute 21 Geo. III. c. 70. before mentioned, the door was consequently open to excessive usury on their part. Nothing, however, can be more absurd and unjust than to enable Natives to take a higher rate of interest from British subjects than the latter may take from them. This evil, with respect to the provinces at large, has been

left

provided against by a modern regulation of the Government restricting interest on loans taken by Natives to twelve per cent.; but as the regulation does not extend into Calcutta, (as being within the exclusive pale of the British jurisdiction, and under a distinct legislative power,) the usurious Native of the capital is left without

any other restraint than one, which perhaps in strictness cannot be justified, that where resort is had to the process of the Supreme Court to enforce money contracts, it has not allowed more than twelve per cent. in any case to be recovered, as being against conscience, and oppressive. And I find that in very flagrant cases of oppressive interest beyond twelve per cent., the Court has disallowed interest altogether, though expressly reserved, which seems to be going far: but in a very late case, occurring since the original of these observations was forwarded, the Court thought they were bound to give twelve per cent. on the sum actually received by the borrower, as the rate of interest was expressly reserved by the contract; though the principal, which had been enhanced on the face of the securities by usurious practices, was cut down to the just amount of the advance actually received.

The interest which the Court allows, (thence called Court interest,) where no express rate is stipulated for, is ten per cent.

The remedy, however, afforded by the Court can only be given to the oppressed, if he be rich enough to contest the payment of more than twelve per cent. and drive the usurer to his action: and unless the amount is considerable, he must probably be a loser upon the balance against the costs of the action, or at least against his own costs. It is notorious that the common people of Calcutta universally pay more than twelve per cent. for their loans; in general, nearly double, and frequently still more, under various pretences. The rate of interest in the Native capitals of India is ordinarily above twelve per cent., and often from twenty to twenty-five, on account of the insecurity of the principal. It is no doubt politic to permit a higher rate of interest at Calcutta than is allowed in England, in order to draw the money Natives of India, who live for the most part on the interest of their capitals, into Calcutta, where it is employed in aid of British trade and enterprize, and of the Government itself on pressing occassions; and also for the sake of those British subjects holding office here, who look to a return home, after a moderate number of years, on the savings of their salaries placed out at interest in the mean time. But I can see no manner of objection to the same rate of interest, not exceeding twelve per cent., being established in the metropolis, which the Government has affixed as the limit to the Natives in the provinces, to which the British subject is also confined by the statute; and justice requires that it should be done.

Caste.

With respect to caste, although many wrongs are committed on this account, or under this pretext, principally with a view to decoy young women from their husbands, or to extort money; and although the Judges are frequently applied to at chambers for redress by the inferior classes, and have sometimes interfered in flagrant cases by way of advice and recommendation to the parties them

selves, or by reference to the Police where the attempt has been mingled with breaches of the peace; yet, after the fullest consideration I can give to this difficult subject in its political and moral bearings, the best mode of treating it appears to be in foro domestico, to which it should be left; though the Judges and Magistrates will still hear of it extrajudicially in cases of gross abuse. Rules have been promulgated giving direct cognizance of matters of aste to the Mofussil Courts, but, as I am informed, with little judicial result, and that little not of an encouraging nature, connected indeed with conspiracy, assault, or the like. Caste is properly cognizable even in the Supreme Court, but there the abuse of it is connected with crime.

It has become quite a matter of course among the inferior classes, and is gradually spreading upwards, where a Native has lost caste, to repurchase his admission for a moderate sum. This is one of the seeds of the destruction of caste. The purchase is made among the lowest classes for eight or ten rupees; for a man of some distinction about 100 rupees; for a Brahmin of good rank in fair circumstances, about 1000 rupees; under particular circumstances, and by very wealthy men, 20,000 rupees, or more, have been formerly paid; but the price is more likely to be lowered from time to time as the institution becomes more lax. There is, however, a current notion that nothing can recover the original pure Brahmin caste of a Peerily Brahmin, now a numerous and money-getting body, which formerly lost caste by some contamination under the Musulman Government, which to this hour the Hindoos most cordially detest. The Hindoos have a common tradition amongst them, that all men will ultimately be of one caste.

Sale of Infants' Property for necessary Subsistence, &c.

By the Hindoo law, in cases of necessity of subsistence of the family, for marriage-portions for daughters, and also for Sråd ceremonies on the death of parents, &c., and for other religious purposes, the ancestorial property of infants may be disposed of either by the eldest brother of an undivided Hindoo family, when of age, or, in the infancy of all the brothers, by their mother or other of the family in loco parentio, and, as some of the authorities say, even by a friendly stranger to their blood.

servant or

There is no more frequent source of litigation among the inferior and poorer classes than this. In a country where there is no public provision for the maintenance of the poor, (the existence of which is one of the noblest attributes of England,) this power seems to be founded in necessity; but the due exercise of it resting, as it must do, upon local and cotemporaneous facts, the title itself is very difficult either to be proved on the one hand, or controverted on the other, at the distance of a few years, when only it is ever likely to be questioned; and whenever there is a suspicion that the