Ava and Munipore, and that the eastern foot of what the Muniporeans call Muring Hills and the Burmese the Youma Toung Range, would be a good boundary. Agreeably to this letter, which was brought by the Resident, Major Burney, the Woondouk Maha Mengyee Yaza and other officers, with the English officer Macleod, were appointed and deputed from the golden feet, in order to receive charge of the towns of Khambat, Tamoo and Thoungthwot and their dependencies. On meeting at Migyoung with the English officers, Major Grant and Captain Pemberton, and conversing together, they said, that in the letter delivered to Captain Pemberton by the English Chief Yoma Toung was not mentioned, but only that the eastern foot of the Muring Hills was to be made the boundary, and all to the eastward of the foot of those Hills the towns of Khambat, Tamoo, Thoungthwot, &c. and their dependencies, to be delivered. The Burmese officers said that in the letter sent by the English Secretary (to Ava) it was mentioned that the eastern foot of what the Burmese call the Yoma Toung, and the Muniporeans the Muring Hills, was to be made the boundary. The two parties differed; but agreeably to the friendship subsisting between the two countries, having reflected, that each confides in the other, and that the two are united, notwithstanding some little portion of forest and hill is remaining, still in order that no quarrel may arise, we have fully discussed the point and agreed with Major Burney; of which matter we inform you." In July, 1834, the principal Envoy was promoted to the rank and office of a Woondouk or assistant Minister at Ava; but both he and the Junior Envoy are very desirous of being employed on another Mission to Bengal. APPEAL AGAINST THE REPEAL LIII. GEO. III. CAP. 155. SEC. 107. subjects, were it not for the act about to be WHAT IS THE SUBSTANTIVE LAW WHICH REMAINS OF WHAT NATURE SOEVER, TO THE JURISDICTION MAY IT PLEASE YOUR LORDSHIP,--Although I REMAIN AMENABLE? I can anticipate your humbly agnize your Lordship's great provi- Lordship's answer. Of course I cannot supdence and wisdom, as manifested in a law pose any thing so derogatory to the dignity about to be passed on the 8th day of May of your Lordship and your Councillors, as to next, for the subjecting of all persons whatso- suppose that you will vouchsafe any public ever in this country, in all civil suits whatso- answer to a newspaper writer, but your Lordever, to the courts of first instance in each ship and your Lordship's Councillors, and zillah and city of India, I do something doubt your Lordship's Law Commissioners and whether your Lordship has quite a perfect your Lordship's Secretaries, will all of you foreknowledge of what your Lordship in ask of your own minds what law? and you Council is about to do, or of what your fore- will make answer unto yourselves thus:-THE runners, equal in power and wisdom, who SAME LAW THAT WAS BEFORE: THE LAW OF THE have been law-givers to us in India aforetime, MOFUSSIL. If this answer could reach my have done. And although it may seem not a ears, I should agnize a fresh proof of the little to savour of presumption in me, who am great wisdom with which this portion of our but one who minister to the laws when made, world is governed. When your Lordship is to lesson those who have the higher task of pleased to recollect that Englishmen ARE SUBmaking them, I must adventure, seeking par-JECT AND ARE TO BE SUBJECT IN ALL C.VIL SUITS don withal, if in aught I should offend, to point out to you what I conceive the old law to have been, and what may be the conse- NATIVES OF INDIA, and when your Lordship is quences of the new law that is to be. By the pleased to refer to the 8th Section of Regula107th section of the 53d Geo. 3d. Cap. 155 it | tion III. of 1793, to see in what manner and to was enacted, that all British subjects of his what suits natives of India are subject, your Majesty should be subject to the jurisdiction of all Lordship will scarcely fail to see that the law courts of the Mofussil having cognizance of civil of the Mofussil in many, nay most of such suits, in all actions and proceedings of a civil cases, must needs be the law of England, for nature in the like manner as natives of India and this plain and cogent reason, that there is no other persons not British subjects were then liable other applicable to their condition. Your to the jurisdiction of such Courts by and under Lordship will observe that I revere the forethe regulations of the Government of Fort Willi- cast and wisdom of your Lordship in Council am, &c." This was an example of the omni- and of your assistants the Law Commissioners, potent wisdom of Parliament; an appeal was too much to suppose that the LAW OF THE MOhowever given to such persons to the Su- FUSSIL in questions relating to the MARRIAGES, preme Court, instead of an appeal to the Sud- DIVORCES, INHERITANCES TO REAL, OR SUCCESder Dewanny Adawlut, at their option: this SION TO PERSONAL PROPERTY, OF BRITISH SUBoption your Lordship in Council is about to take JECTS, is deemed by any of you to mean either away, while you re-enact that they shall be sub- the HINDOO OR MAHOMMEDAN CIVIL LAW, or ject to all the Mofussil Courts in all civil ac- even that sort of law which a Zillah Judge, tions whatsoever in like manner as the natives however profoundly versed in the writings of India; this will be a sample of the omnipotent of Bentham and the new philosophy of juriswisdom of your Lordship in Council. I have prudence, might apprehend to be a much seen your Lordship's answer to the British-born wiser rule in each case than the law of Enginhabitants of Calcutta, who petitioned your land. If your Lordship in Council, or the Lordship in Council, and therein I perceive Law Commission, know of any other systems that your Lordship in Council is made to say of Civil Law which prevail in the Mofussil that," the rescinding of the 107th clause of the than the Hindoo and Mahommedan systems, charter act of 1813, will make no change in the (except the law of England,) then I most rights of British subjects. Its effect will be freely admit that your knowledge is greater merely this, that what has hitherto been done by than my knowledge, and I might say, than the Supreme Court, will be done by the Court of any man's knowledge. I rather apprehend Sudder Dewanny Adawlut. THE SUBSTANTIVE LAW that some of the powerful, sagacious, and REMAINS THE SAME." Your Lordship is not quite straight-forward understandings of which accurate; the rescinding of the 107th clause your Lordship must needs have taken counwould make a change in the rights of British sel, must have intended to evince to the ве world in a striking manner the universality within the limits of the said Company's Charter"-shall of the Civil Service, and with how little of cease to have effect within the Territories of the East the preparatory training usually deemed India Company. needful, they could administer in all its simplicity and integrity the law of England; that law which they and the Government they serve, have ever looked down upon as beneath them. Your Lordship will permit me to observe that I cannot gather clearly from the letter, which your Lordship in Council has vouch 11. And it is hereby enacted, that from the said day, shall, by reason of place of birth, or by reason of descent, and within the said Territories, no person whatever be IN ANY CIVIL PROCEEDING WHATEVER, excepted from the jurisdiction of any of the Courts hereinafter mentioned-that is to say The Courts of Sudder Dewanny Adawlut-of the Zillah of the Sudder Ameens in the Territories, subject to the and City Judges-of the Principal Sudder Ameens-and Presidency of Fort William in Bengal. the Courts of the Zillah Judges-and of the Native The Court of Sudder Adawlut-the provincial Court Judges, in the Territories, subject to the Presidency of Fort St. George. The Courts of Sudder Adawlut-of the Zillah Judges and of the Principal and Junior Native Commissioners, in the Territories, subject to the Presidency of Bombay. Your Lordship will note again, what it is plain your Lordship must already have so well considered, that no person is exempted, and no civil proceeding is exempted, from those after mentioned Courts. Here, I next place the 8th Section of Regulation III. of 1793 VIII. The illah and city courts respectively, are empowered to take cognizance of all suits and complaints respecting the succession or tight to real or personal property, land-rents, revenues, rents, accounts, ages for injuries, and generally of all suits and comcontracts, partnerships, marriage, caste, claims to damplaints of a civil nature in which the defendant may come within any of the descriptions of persons mentioned in Section 7, provided the landed or other real property to which the suit or complaint may relate, shall be situarisen, or the defendant at the time when the suit may ated, or, in all other cases, the cause of action shall have be commenced shall reside as a fixed inhabitant, within the limits of the zillah or city over which their jurisdiction may extend. safed to write in answer to the Memorial of the British-born Inhabitants of Calcutta, any answer to the question I have ventured to ask, nor am I able to say whether your Lordship really does or does not suppose that there is A SUBSTANTIVE LAW IN THE MOFUSSIL other than the law of England, applicable to all cases in which British subjects may be suitors. Perhaps your Lordship's advisers will tell you that there is such a law; I must with great submission tell your Lordship that there is not, and I beseech your Lordship before you decide the matter from what you may hear from the Secretaries or the Law Commission, or at the Council Chamber, to read the Acts of Parliament and the Regulations for yourself. An awful veil of secresy is drawn over the deliberations of Indian legislative wisdom, and we cannot know by any public means, what are the reasons which lead to the making of laws. Some little time is given to us, inhabitants of Calcutta, to scan and consider the laws proposed, after the Government stands committed by an approval in the first instance, and to the other Presidencies I perceive that your Lordship in Council grants sufficient time to petition or remonstrate by return of post; but we learn nothing, at least most of us, of these things beforehand. Some Thus will stand the law, as it will be written, indeed who are honored with the acquaintance and until I discover the third code for which of the great men who recommend, promulgate, I have yet to seek, permit me with great respass and execute the laws, may form some pect to submit the following questions: Do conception of the first causes which lead to zillah or city Courts or Courts of Sudder Ausuch effects, but we who have to obey, must all meens understand the common law? Do they be forgiven if we should misapprehend what understand the Statute law? Do they underpasses in the minds of those so superior to us, stand the Canon law? Do they know the and who I understand are greatly above com- difference between a use and a trust, an estate municating with, or seeking for information in fee and an estate-tail, a contingent refrom others on such subjects. I have sup-mainder and an executory devise; when a posed that your Lordship in Council appre- will is properly executed according to the hends that there is some third code of civil Statute of Frauds to pass land to a devisee law in the Mofussil of which I never had the and when it is not? Do they know the law fortune to hear, if in this I have misappre- merchant, the bankrupt law? Do they know hended, I pray that I may be forgiven; and I the Statute of distributions and who ought to shall proceed to prove that there cannot be well any other law than that of England in the case of which I treat. The Act which is to be law on the 8th May, I put here Acr No.- OF 1836. It is hereby enacted, that from the- -day of of be preferred among the next of kin in granting administrations? Do they know the law relating to wills, what papers should be admitted to probate and what should not; the rights and duties of executors? Do they know when an English woman is lawfully married and when she is not,-what causes are sufficient to divorce a mensâ et thoro, what a vin the 107th Clause of an Act of Parliament passed in the culo matrimonii? I could prolong this list, as 53d year of King George 3d, and entitled "an Act for your Lordship who has studied the laws of continuing in the East India Company for a further term England I believe, well knows, but it would be the possession of the British Territories in India, together idle to do so. I must beg leave to ask but two with certain exclusive privileges-for establishing further ARE THE SUBJECT MATTERS OF and the better administration of justice within the same, THESE QUESTIONS SUBJECT MATTERS OF CIVIL and for regulating the Trade to and from the places PROCEEDINGS, OR ARE THEY NOT? and if the Regulations for the Government of the said Territories, questions more. propos Zillah Courts, &c. after the 8th of May next, this not be a little piece of professional vanity are asked to decide all or any of them, MUST and self-love, still it only places the supeTHEY NOT DECIDE THEM, AND BY THE LAW OF riority of Mofussil Judges in a more striking ENGLAND TOO? Possibly your Lordship's ad-light; and when, indeed, I ponder on the fact, visers may inform you that these Courts must that these learned vakeels in addition to adneeds understand such matters, because Par-dressing these learned Judges (as is the daily liament and your Lordship in Council have custom in these excellent Courts) in a lanmade them competent to decide them: it is a guage which neither Judge nor pleader understringent argument and to a lawyer shuts out stand, will have to argue points of a law that all doubt. That some such conclusion has al-neither Judge nor pleader understood before, ready and thus early been attained by your I forget the precept of Horace, to which, acLordship seems apparent, from the passage in customed as I am to Indian legislation, I had your Lordship's answer in which you are pleased hitherto held fast, and am fairly overcome to say "Points may doubtless arise which cannot with admiration! I was prepared to expect be properly decided without a knowledge of the great things from the LAW COMMISSION, but English law: but it does not appear to his Lordship this imperishable monument of their deep in Council that it will be more difficult for a judge knowledge and forecast, high capacity and of the Sudder Dewanny Adawlut on such an occa- hardy genius, surpasses the utmost expectasion to learn what the English Law is, than it is tions of one who yet hoped for much. for a Judge of the Supreme Court to obtain inforI had intended to add the feeble tribute of mation touching the Hindoo or Mahommedan Law." The Courts of "first instance," such as those of my praise to the law and Judges of the MofusSudder Aumeens, &c., mentioned in the sil, but as these gentlemen have through your ed act, seem to have been left out by some inad-Lordship been pleased to say of themselves, vertence; doubtless they too are as compethat, "theirs is a body which abounds in men as tent to settle points of the law of England as the honorable and as intelligent as ever were employed Supreme Court, and your Lordship, who must in the service of any state," what can I add know them so well, has given them high more? and how ungraceful it would be for an praise indeed, praise which fills me, whose anonymous writer to commend men who can "Indian experience has been confined to Calcutta," speak with such propriety so much of themwith an extreme admiration for the intui-selves. Of the Law Commission, however, I tive knowledge which must be possessed by a may speak; their business seems to be to Judge of the Courts of the East India Com. smooth the difliculties that roughen the tortupany. Your Lordship having made this comous path of Anglo-Indian Legislation, and the parison, will be pleased to learn what enmost prominent member seems to possess in an bances the value of the praise you have so unusual degree that quality common to all wisely and warily bestowed; you will be great men, the quality of decision; and to pleased to hear what the modesty doubtless doubt of nothing but the capacity of others. The duties of the Law Commission are set of the gentlemen of the service around you concealed, namely, that the Supreme Court forth in the 53d section of the last Charter, has for 62 years administered both the Hindoo (that Charter of freedom for India, as I reand Mahomedan Law; that these systems of member me it was hailed here and in England law were studied, understood, and adminis-by the very-liberal) in these wordstered by that Court nearly a quarter of a cen- LIII. "And whereas it is expe lient that, subject to tury before the Sudder Dewanny Adawlut such special Arrangements as local Circumstances may existed; that the Supreme Court was provided require, a general System of Judicial Establishments and at its institution with Hindoo and Maho. Police, to which all Persons whatsoever, as well Euromedan lawyers as assessors to assist the judges in the said Territories at an early Period, and that such peans as Natives, may be subject, should be established to administer those systems when less known, Laws as may be applicable in common to all Classes of that in addition to these sources of knowledge the Inhabitants of the said Territories, due regard being it is provided with a body of advocates and had to the Rights, Feelings, and peculiar Usages of the attornies who make those systems their es- People, should be enacted, and that all Laws and Cuspecial and diligent study, for more, much toms having the Force of Law within the same Territories should be ascertained and consolidated, and as Ocmore than nine-tenths of the cases decided in casion may require amended;" be it therefore enacted, this Court, are decided by one or other those that the said Governor-General of India in Council systems of law. Possibly your Lordship will shall, as soon as conveniently may be after the passing admit these are advantages which the Su-of this Act, issue a Commission, and from Time to Time preme Court possesses; it will only make Commissions, to such Persons as the said Court of Directors, with the Approbation of the said Board of Comthe praise of the Motussil Courts, implied missioners shall recommend for that Purpose, and to in your comparison, the more valuable. such other Persons, if necessary, as the said GovernorMy professional pride compels me, however, General in Council shall think fit all such Persons, to dissent from any implied equality between not exceeding in the whole at any one Time Five "The Indian Law an English Barrister and a licensed vakeel of in Number, and to be styled, Commissioners," with all such Powers as shall be a Mofussil Court; and I cannot think that the necessary for the Purposes hearin-after mentioned; learned gentlemen last named will find it quite and the said Commissioners shall fully inquire into the so easy to learn what is the law of England Jurisdiction, Powers, and Rules of the existing Courts of pro re nata, as for a Barrister to find out on Justice and Police Establishments in the said Territories, the very rare occasions when he may happen and all existing Forms of Judicial Procedure, and into to want it, what is the law of Hindoos or Ma- the Nature and Operation of all Laws, whether Civil or Criminal, written or customary, prevailing and in homedans. Should I be right, and should force in any Part of the said Territories and whereto "TO any Inhabitants of the said Territories, whether, Euro | authority of that 23d Section of the 21 Geo. 3d peans or others, are now subject; and the said Commis c. 71 which gave the Government power sioners shall from Time to Time make Reports in which FRAME REGULATIONS FOR THE PROVINCIAL COURTS they shall fully set forth the Result of their said Inqui ries, and shall from Time to Time suggest such Altera- AND THE KING POWER TO ALTER AND AMEND THEM, tions as may in their Opinion be beneficially made in PROVIDED SUCH AMEND MENT DO NOT OCCASION the said Courts of Justice and Police Establishments. ANY NEW EXPENSE TO THE SUITORS OF THE SAID Forms of Judicial Procedure and Laws, due regard being COURTS. had to the Distinction of Castes, Difference of Religion this cannot be so, I beseech you to ask of If your Lordship should suppose and the Manners and Opinions prevailing among different Races and in different Parts of the said Territories. your advisers, experienced in such matters, What reports must they not have made, the acts relating to India to frame laws or where they find any legislative authority in what enquiries must they not have entered Regulations. They will probably tell your into, to come to the conclusion that "due regard being had to the difference of religion, and sessed a power to make law, by being made ordship that the East India Company posthe manners and opinions prevailing among the DEWAN of the GREAT MOGUL. This reply will European race", a suit concerning, (for example) the marriage of an English lady and constitutional lawyer and a judge in the highdoubtless satisfy your Lordship as an English gentleman, could be committed to the decision of a Judge who might by that Charter best resort-but whether it does or not, your Lordship can next ask how this power by a Mahommedan or Hindoo? Can I say more right of Dewanship gave the Government here in their praise or give a more cogent example a power to do such things for example, as to of their very peculiar merits? prohibit British subjects from holding land, Permit me to congratulate your Lordship on as they did by Regulation 38 of 1793, or to this popular and fortunate commencement of repeal an Act of Parliament as they did by your legislative career; your predecessor's regulation 4 of 1828? These doings gave the talents for this kind of legislation, his freedom benefit of a precedent, which the great genius from all bias and prejudice on such subjects, who began to make law on the Neilgherry was well known, you no doubt found all pre- Hills was not slow to follow; and accordingly pared for you reception, and it was impossible the first commencement of the new era of for him to divest himself with a more wise dex- legislation under the new charter of freedom, terity, for you to assume his mantle with was a thing called a law, which coolly disan easier grace. If there should be any dis- pensed with the Act of Parliament by which content created by this first essay, your Lord- the legislators sat, and had authority. Did ship will readily believe the assurances of your Lordship ever hear of this before? those around you that all that any English Lawyer can have in view is to extend the juris- Your Lordship in your letter is made to hint diction of the Supreme Court; that the Civil very significantly that an Act of Parliament Service of the East India Company is giving an appeal could easily enough be got quite free from any bias of that kind or from rid of, indirectly, by the Government of the any disposition to extend their own powers; Company. And so it signified very little to and that all that gentlemen so able and honor- British subjects that they had got an appeal able can have in view is, to increase the hap- to the Supreme Court where others had it to the piness of those they are so happy as to govern Sudder Dewanny Adawlut, because the Comwithout control; and that they only wish to pany's Government if so minded could easily administer English Law to Englishmen, in or- abolish the appeals to the latter. To be sure, der to refresh their recollections of a free sys- there was nothing in their way but an Act of tem, which their situation here, possessed as Parliament. Your Lordship in Council is they are of irresponsible power, and armed made to continue thus, "nor was this power with legislative impunity, might otherwise ffered to be dormant." I humbly thank your lead them now and then a little to forget. Lordship's Secretary for this plain exposition The Government of the East India Company of the principles which guided formerly, which is quite superior to the imputation of having will guide for ever, the legislation of the serusurped power by constructive subtleties. It vants of this corporation called the East India has always been too frank and bold for that Company. It is seldom that a state paper has course. The most pregnant proof I can afford so much of the instructive quality of candour. your Lordship is to request you will deign to To the example cited by your Lordship in read the 36th section of the 13th Geo. 3d Cap. Council from the Regulation 4 of 1827, I will 63, which until this last charter of freedom, add one from Regulation 4 ofl 828; in that case constituted the only sanction which Parlia- Government, under the guidance of that emiment ever gave to the assumption of legislative nent and successful statesman Mr. Holt Macpower by the corporation called the East India kenzie (the author, be it remembered, of this Company. I next request your Lordship to new charter of freedom in conjunction with refer to the 23d Section of the 21 Geo. 3d. c. one equally eminent, but who, as he is now 471, and beg to inform your Lordship that with amongst us, and might take my mention the prohibition to make laws repugnant to the amiss as savouring of flattery shall be namelaws of England and the command to have all less) was pleased to pass a general Quo warranto Jaws registered in the Supreme Court remaining act, concerning all rent free lands; and in unrepealed, this Government chose to found order to settle the questions between it and its whole body of legislation, to make laws its subjects with more facility and satisfacaffecting, life, liberty, and estate, on the tion to itself, was also pleased to abolish an |