ACTUAL JUDICIAL ESTABLISHMENTS AND

PROCEDURE.

Before I submit any recommendation to your Lordship, it will be proper to describe the judicial establishments and the forms of procedure now existing in Ceylon, so far at least as to enable you to judge of their defects with reference to what I have stated as the principal objects to be attained, and the means of attaining them.

For a more complete and detailed accounts, I take the liberty of referring your Lordship to the replies of the different judges of the questions which for the most part, were addressed to them by my colleague, and to the printed laws of the island.

JUDGES OF ORIGINAL JURISDICTION, NUMBER AND

diction

DESCRIPTION OF

does not sum up the evidence, nor give in general the reasons for his decision, all that the parties or the public, or even the judge himself, can know is, that he has given a decision in favour of A. and against B. But upon what state of facts the judgment has proceed. ed, or what points of law have been determined by it, can only be matter of vague conjecture.

This evil pervades all classes of suits; but suits arising in the maritime provinces, for it is aggravated to the highest pitch in those the correct decision of which the Legislature appears to have been most anxious to provide; viz. suits in which the value in dispute being above 157., an appeal lies to the minor, or to the high court of appeal. In such suits, the provincial judge is bound by law, provided a witness be competent, to receive and take

The judges having original and local juris-down whatever he states, however irrelevant are sufficiently numerous, or more to the matter in dispute. than sufficiently numerous for all the purposes of justice.

EDUCATION OF JUDGES OF ORIGINAL JURISDICTION.

All the above-mentioned functionaries are at present gentlemen not only unconnected with the profession of the law, but whose education has been in no degree adapted to the special purpose of qualifying them for the administration of justice, and who, by the usual course of promotion in the civil service, are practically acknowledged to be equally fit for the discharge of any other functions.

PLEADING AND EVIDENCE.

The causes tried before the local judicatures all over the island are not reduced, by any rational and methodical system of pleading, to one or more disputed points of fact or law.

This was no doubt an expedient, but it is surely a very clumsy one, for insuring to an appellant party the benefit of any evidence which, in the opinion of the court of appeal, might be relevant to the issue. It does indeed enables a party to waste the time of the court attain this object, but at the same time it below, and to embarrass the points for its

decision to any extent.

The proper course is, undoubtedly, to leave the question of admission or rejection in the first instance to the court of original jurisdiction, and to let its decision, upon that question itself, be brought before the appellate court. This is what takes place in Engtrial and bills of exceptions. lish procedure, by means of motions for a new

sors.

MARITIME PROVINCES.

The provincial judges and sitting magistrates are not assisted by any jury or assesThe audience who frequent their courts consists of natives, with whom the judge does not associate, and whose good opinion is of little or no importance to him. There is no Bar in his court, there is no person present to whom, either officially or from motives of respect, he is called upon to sum up the evidence, and to state his view of the The court is generally obliged to give judg-law applicable to the state of facts which the ment without any previous separation of the matters really at issue, and the proofs appli- Setting aside, therefore, the apprehension cable to them, from the confused mass of of an appeal, of which I shall presently show statement and evidence with which the pas- the inefficacy, I may safely assert that every sions and ignorance of the parties, induce provincial judge or sitting magistrate who them to encumber the case; and as the judge goes through the process necessary for arriving at a just conclusion upon the matters submitted to him, or indeed who bestows any painful attention upon them, does so from the sole motive of satisfying his own conscientious love of justice.

(a) Whoever is called upon to investigate the legislation of courts were formed by changes (very extensive changes certainly)

Ceylon will escape some perplexity, by knowing that the provincial wrought in the Dutch landraads, or country courts.

The provincial courts and the landraads are indeed treated as distinct institutions in the Charter of 1810, the 14th section of which abolishes the former and re-establishes the latter; and also in the Charter of 1811, which repeals that section of the Charter of 1810. But in the 31st section of the Charter of 1810, the landraad of Colombo is designated as the "provincial court commonly called

evidence establishes.

.

For every step which a suitor is permitted

the landraad of Colombo:" and I can find no legislative act of any to take in these courts, and the same is true

kind professing to create the provincial courts de plano.

of all the courts in the island, whether exer- plications for delay. The ground of these cising original or appellate jurisdiction, ex-applications is generally the alleged absence cept the supreme court (a), he is obliged to of witnesses; and to what an extent the pracpay, under the name of a stamp duty, a sum tical evil resulting from this cause has been which, though it may be small and ineffec- carried, will appear from the following extual for the beneficial purpose of raising a re-tracts taken from the evidence of those who venue, is large and powerful for the flagitious are most competent to speak upon the subject, purpose of indiscriminately repressing liti- viz. the proctors who practise at Colombo. gation. The experience of these gentlemen is in

An exemption, however, from the payment general confined to the provincial court of of these duties may be obtained upon peti- observation of Mr. Henry Staples should be Colombo; but on this point the preliminary tion to the Governor to use in formâ pauperis. Such "petitions shall be presented to the kept in view. court in which the suit is pending or to be "I will now proceed to point out more fully instituted, or from which the appeal is made the causes of this delay and the other defects or to be made; and the poverty of the appli- that occur in its proceedings. I speak, howcant must be proved to the court by his own ever, only of the provincial court of Colombo, affidavit and the affidavit of two other per- which, with all its defects, is by far superior sons;" and the court is to make inquiry to those of the other provinces, its officers and certify its opinion whether the applicant and practitioners having more opportunities has apparently a good cause of action or de- to observe and compare their proceedings with those of the supreme court and correct what is imperfect, while the latter have especially the benefit of practising before the high court of appeal, and a greater field open to them for improvement in their profession. Having been in different parts of the island, and having also had many opportunities of observing the proceedings of the other provincial courts in appealable cases, I have no doubt that considerably more reform is needed in those courts than in that of Colombo." Mr. Henry Staples thus expresses himself: Upon the subject of which I am treating,

fence.'

On this subject a Minute of Government, dated 15th October, 1816, is a very instructive document, because it shows how large a class of persons in Ceylon is in a condition to avail itself of this charitable privilege, and at the same time how insignificant an object this large class and its interests have appeared in the eyes of the colonial government.

"The number of suits (says this Minute) admitted to be carried on in formâ pauperis having become very great, and new applications being daily made, it has been deemed necessary that all depending petitions be transmitted to the courts to which they relate, and that such others as may hereafter be presented will be referred in like manner, to remain in deposit till further orders.

"Provincial judges and magistrates are requested to establish amongst these claims such order of priority and succession as may appear just, reporting the same for his Excellency's information, and also stating when, and in what proportion, the general business of the court will admit, without public inconvenience, of entertaining more pauper suits."

The community being thus divided into those who can afford to pay for justice and those who cannot, the inconvenience of the former class, as distingushed from that of the latter, is openly designated as the public inconvenience; and the poor are plainly told that the government will only distribute justice gratuitously at those seasons when the sale of it is slack. Those who cannot pay are plainly told that they have no right by law to the services of a court of justice, but that, by sufferance, they may glean as much of them as is left after the true owners have taken all they have occasion for.

The effectual means are adopted under the present system for ascertaining the truth of the grounds on which the parties make ap

Court, which in general amount in the course of a suit to more (a) There are fees of court payable by the suitors in the Supreme than the stamps in the other courts.

"The next step is, by filing lists of the parties' witnesses, to which no other names can be added, as in respect of written evidence, the case being fixed for hearing is postponed successively from time to time for the attendance of absent witnesses, the parties never being called upon or obliged of themselves to produce them. I have known cases postponed in this manner from one to berty to annoy a defendant for years together nearly three years. A plaintiff is thus at liby keeping a suit pending over him, and a defendant can on the other hand prevent the plaintiff from recovering a just demand while squandering away his substance before his creditors' eyes; and this delay the defendant too often effects by giving in a long list of witnesses (most of whom are either fictitious, or the persons whose names appear, know nothing of the matter); and here let it be observed, that the provincial judge consider themselves obliged, by the 25th clause of the proclamation, examine every witness, if the parties insist upon it. This obligation on the part of the provincial judges, doubtless arose from a conviction by the framers of the proclamation, that the ignorance of the judges would probably make them reject evidence which ought to have been received, though the clause does not seem to imply it.

"The practice of preventing the witnesses from attending, or subpoenas from being served upon them, is often resorted to for the purbe laid down to prevent these abuses; and pose of delaying the case. Some rules might

the best that occur to me are, that a party should be obliged to produce his witnesses or show good grounds, on affidavit, why they are not forthcoming, and that they are so material to his case that he cannot safely proceed to trial without them."

witnesses are not forthcoming, and that he cannot safely proceed to trial without them; but such affidavits, as Mr. Justice Marshall remarks, would never be wanting; and the only effectual remedy for this great abuse is, to apply to the assertions of the party respecting the absence and the materiality of his witnesses, that test which is found to be the most powerful detector of falsehood in other cases, viz. vivâ voce examination and crossexamination; and this is accordingly what I shall recommend in its proper place.

Mr. Drieberg says, "I may say, that it is partly owing to this want of power in the provincial judge, that suits in the court here are delayed. He is bound to hear all the witnesses that a party calls, particularly when it is appealable, unless waived, although in his mind a point has been sufficiently proved Great difficulties appear to be thrown in the by the witnesses already examined. If one way of plaintiffs, even after the question witness is absent in a case, and the party at between them and their adversaries has been whose instance he was subpoenaed alleges determined, in consequence of fraudulent that it is a material witness, the court post-claims being set up to property taken in exepones the decision of the suit until he is ex-cution. amined, without making any inquiry as to what facts are to be proved by him."

The provincial judge of Jaffna remarks on the same subject: The proceedings certainly allow of being protracted by parties interested in such delay. The great cause of delay is, the non-attendance of witnesses on the day fixed for trial, and persons wishing to protract the proceedings will often purposely insert in the lists of their witnesses names of persons whom they know to be absent from the place, or induce the witnesses on their own or the opposite side to absent themselves. It is difficult, or indeed almost impossible, to discover and check this system of tricking, and cases are therefore often unnecessarily delayed by it."

On this subject, Mr. H. Staples observes, "In no one instance is there so much delay experienced as in cases of execution, when a party, who, after a long lapse and considerable trouble has obtained a judgment, is unable to reap the fruits of it, by the opportunites which the practice of the court, the fiscal's regulation, and the defects of his department afforded to a debtor, and to those who, from the nature of their office, are able to assist him in delaying to enforce the payment of his debt.

executing any writ against any property "The regulation obliges the fiscal to delay claimed by a third person, but he is to report every such claim to the court from whence

the writ issues. It does not authorize him to inquire whether the claim be well or illfounded, the nature of it, or to require the production of any deeds or other evidence for the information of the court.

Mr. Justice Marshall, in examining the plan of a circuit court for the trial of civil suits, says "One rarely takes up the proceedings of any case from a provincial court, in which one postponement at least has not taken place "This part of the proceedings of the pro(more commonly several) by desire of one vincial court is attended with more mischief or the other of the parties, on account of the and abuse than any other. How often does it absence of material witnesses. This is a happen that a debtor causes some creature of ground on which it is scarcely possible to his to enter a claim to property seized, without resist the postponement of a trial, if it be the latter having a shadow of title to it. The true, and the truth of which it is not easy tiscal must of necessity report such claim, to ascertain. Let affidavits be required of and the debtor thus gains his object of delaythe absence and even of the facts which ing the execution of the writ, on the return would be proved by the absent witnesses, of which the claimant is cited to appear and and this is going further than English practice establish his title to the property. Perhaps would warrant; the necessary affidavits to he does not attend to this notice; if this be any number and in any from which might be the case, the writ re-issues with instructions proscribed would never be wanting." to carry it into effect without attending to It is clear that a judge may cause as much such claim; but another claimant appears, and mischief by granting delay upon the allega- the same course is pursued till the plaintiff is tion of grounds which have no existence in often tired out, and forced into any arrangefact, as by misdecision on matters of law, yet ment that his debtor, the defendant, may in the one case he does not feel himself under have proposed. But claims in execution, anything like the same degree of responsibi- whether well or ill founded, if proceeded in, lity as in the other. As the appellate juris- seldom take less than a year for their decidictions are now constituted, the granting or sion, for though the regulation enjoins that refusing of applications for delay never comes they be heard summarily, yet by the practice under their cognizance. But even if the of the provincial court, the whole proceedjudge had the strongest motive for doing ings are conducted in the same manner, and upon such applications what justice requires, through all the stages as in an ordinary suit, the existing practice does not afford him the and the same postponements take place for means. Mr. Staples, in the above extract the same causes as in other cases, without from his evidence, recommends that the party' any difference or exception whatever, and the applying should show by affidavit why his same expenses are incurred. I have known

such claims to have taken upwards of two years before they were decided, in short, the same length of time as in any other case."

whether the fiscal is liable to punishment by attachment or otherwise by the provincial court, for remissness in the execution of its process; and I should think that if this power were to be expressly given to that court, it will have another beneficial effect in the enforcement of its process, as the fiscal will then know that punctuality is the only means of eluding the punishment which will otherwise fall upon him."

The evil here described is certainly a very grievous one, I do not, however, perceive that there is any thing in the nature of a claim made by a third person to property taken in execution, which renders it proper to be decided in a more summary manner than a claim to property under any other cricumstances. But the process of bringing the claimant be- Mr. Hillebrand says, "But the reverse is fore the court by a citation is unnecessarily the case with the process issued from the procircuitous. The claimant, giving notice to the vincial court of Colombo, which is an addifiscal to hold his hand, should come at once tional cause of the delay of cases in that before the court like any other plaintiff, and court, which very often waits in vain for the then, like him, he will undergo, if my views attendance of the several defendants and should meet your Lordship's approbation, such an examination as is best calculated to bring to light the real nature of his claim, and such punishment, should its falsehood be established, as is best calculated to prevent a repetition of such attempts.

witnesses on the day and at the hour appointed for their appearance, owing to the nonservice of the process on them in due time, if at all. This delay and irregularity is of more frequency, and very glaring, in respect to the process of execution, which is very The process of the local courts appears to seldom or never returned to court on the day be executed in a very negligent manner. The it is returnable, much less is the money, which evidence we possess on this subject also is de- is commanded to be levied by this process, rived from the proctors resident at Colombo, regularly and punctually recovered and reand it shows that there are two causes of neg- turned to the court, but on the contrary, it is ligence in executing the process of the local delayed for many months, nay, nor even for courts. First, that the fiscal, who is the execu- years together, without carrying it into full tive officer of all courts in the maritime execution. provinces, receives no remuneration for execu"The reason of this striking difference, I ting the process of the local courts; and se-think to be first, because the fiscal receives condly, that he is not practically liable to be certain fees to execute the process of the punished by them for neglect of duty; I say supreme court, and none for that of the propractically, for though the law on the subject vincial court, and therefore in one case he is seems to be generally considered doubtful, I active and diligent, and in the other remiss entirely agree with the opinion expressed in the evidence of Mr. Hillebrand, that every person is subject to the court of which he is an officer, in respect to his office.

Mr. Drieberg says," The court has likewise no power to punish the fiscal, or the headmen acting under him, for their negligence in executing process, which is the main cause in consequence whereof witnesses cannot be easily brought before the court, and again the difficulty to bring before the court the server of the subpoena upon an absent witness who is to verify the service on oath before an attachment can be issued.

Mr. Martensz says, "The fiscal, though personally responsible for the acts of his deputies, takes no part in the execution of the process of the provincial court, and indeed interferes very little with the execution of the process of that court, because he derives no sort of fee or emolument, while upon the writs of the supreme court he receives a fee of 5 per cent. up to 500 rix-dollars, and above that sum, 3 per cent. on the amount of the writs, besides other fees for serving every citation and order of that court; and I should therefore think that if some remuneration were allowed to him, or rather to the person who carries the writ into execution, as also for serving every other process of the provincial court, he might be stimulated to more activity in the execution of the process of that court likewise. It is a doubtful question

and indolent; and secondly, because he is aware that the supreme court is vested with the power of visiting him with fine and imprisonment for any neglect of his duty: and on the contrary, it is opposed by him, and by many others, that the provincial court has no such power vested in it, contrary, as I humbly believe, to all principle of law, at least contrary to the civil or Roman Dutch laws, according to which every person is subject to the court of which he is an officer, in respect to his office, although he be not subject to the jurisdiction of such court by virtue of any right or privilege he may be entitled to; but when he is called upon to answer for the the reason generally assigned by the fiscal neglect of his duty is, that he has no control over the headmen, and therefore unable to force them to execute his orders; and although this plausible excuse may, in some degree, hold good with respect to the process that is to be executed by headmen in the corles, still it is no answer or justification with regard to process, that is to be executed within the gravets, and respecting which he has very seldom, if ever, given a satisfactory answer, whenever he has been called upon to visited by the court by any sort of duresse or account its delay; and yet he has never been amercement for reasons above stated."

These extracts will show your Lordship that, even if the decrees of the local judicatures were the result of the profoundest legal know

ledge and the most diligent investigation, peans, as that of the provincial judges, with and if they could be obtained with the least the exception of the sitting magistrates of possible delay and expense, the suitors would Mulletivoe, Trincomale, and Batticaloa, who be still very far from deriving from them that can try civil causes in which a European is protection which is the greatest blessing of defendant, provided the value in dispute does good government. not exceed 221. 10s.

The principal defect in the civil jurisdic tion alloted to the local courts, cousists in the almost complete exemption of Europeans from it, and in the nature of the exception to the completeness of that exemption.

No provincial judge can try any cause in which a European is defendant, in which the value in dispute exceeds 71. 10s., though he can try causes between natives to any amount. My anxiety for the improvement of the natives of India does not render me blind to the

marked distinctions which exist between them in their present moral condition and their European governors; and I think it highly important that such distinctions should not be neglected in constructing institutions for our Eastern possessions.

The provincial courts have a testamentary jurisdiction, (which is apparently considered to include the power of appointing guardians to minors) which they have exercised de facto since the year 1805.

The Regulation No. 5, of 1826, legalizes the past exercise of this jurisdiction, and provides for the future exercise of it by the provincial courts.

This part of the business of the court appears to be conducted in a peculiarly negli gent and unsatisfactory manner.

On this subject the evidence of Mr. Jumeaux, who practises as a proctor both in the supreme court and in the provincial court of Colombo, is very important.

I would not, for example, trust a native "Should the provincial court of Colombo with power over his countrymen in any case continue, I am of opinion that its testamenin which pecuniary considerations do not pre-tary and matrimonial jurisdiction, and the vent the employment of a European. Their cases in them now pending, should be transgeneral contempt for the rights of inferiors, ferred to the supreme court without delay, for and the abominable spirit of caste, render the evils in this class of cases are incalculathem very unsafe depositaries of such a trust. ble in the provincial court of Colombo; I But all men are equally entitled to protection dare say it is worse in the out-stations, owing from those who undertake to govern them; to the distance they are from the supreme to protection from each other, as well as from court. In this supreme court, one of the external enemies; the lower too the moral condition of the people, the more do they need such protection; the more too is their government concerned, both in interest and duty, to afford it to them.

principal duties of the master in equity is to admit and check the accounts of the adminis trators and executors immediately under its control by which the interests of minors and others are protected, whilst in the provincial court of Colombo, executors and administrators have uncontrolled management of the property of minors and absentees.

"The testamentary business of the court is shamefully conducted for want of a sufficient establishment to attend to it, as well as to the great press of other business that daily engages attention.

It must be remembered, that in Ceylon the provincial courts administer the same laws as the supreme court, so that there is not the same reason for this distinction between Europeans and natives as in Continental India; and the distinction does not here, as there, merely separate the causes of Europeans from those of natives, but it places on one side those causes of Europeans in which "No official administrator has ever been the value in dispute exceeds 71. 10s., and on the other, those causes of Europeans in which appointed to administer to intestate estates, the value in dispute falls short of 77. 10s. togeand the proceedings of the court in its testather with all the causes of natives, and leads mentary jurisdiction are loose and improper. therefore to the inevitable inference, that y conducted, and the provincial judge is these last are of no more account in the eyes exist in these particulars. It is the opinion really incapable of remedying the defects that of the government than those trifling interests of every one that the testamentary business of Europeans (as they are generally though throughout the island ought to be thrown into improperly considered) with which they are the supreme court, where every attention is paid to it, and every remedy known and given to the persons interested."

thus classed.

The truth is, that the administration of justice to natives is of far more importance than A case came to my knowledge in conse its administration to Europeans, because they quence of a petition presented to Colonel are so much less disposed to do justice to each Colebrooke and myself, which confirms the other voluntarily; and I know of no instru- view taken on this subject by Messrs. Jument so powerful for gradually inducing upon meaux and Henry Staples; and it illustrates them habits of honesty and sincerity as a judicial establishment, by which fraud and falsehood may be exposed to the greatest possible risk of detection and punishment.

The civil jurisdiction of the sitting magistrates has the same limits with regard to Euro

in so striking a way how shamefully the interests of minors are neglected under the present system, and how great the necessity is for some reform in that system, that I think it right to bring it very concisely under your Lordship's notice.