has actually been received. Such a proceed-jam naturally anxious to avail myself of such ing seems in reason to be only applicable to high authority as that of the authors of the the case in which material evidence can be Report above quoted. That high authority produced after the trial which, without any is with me when I denounce the evil; it is default of the parties, was not produced at not against me when I suggest the remedy; the trial, and even in that case there is no ex- for it is obvious that there may be abunpediency in re-commencing the examination dant reasons why those incidents of the of the whole case de novo, and thus putting trial by jury which I have proposed to althe parties to risk, by the death of witnesses ter or omit, could not be removed in this or the destruction of documents, of losing all the benefit of the evidence which has already been adduced.

country without producing greater inconvenience, and consequently it cannot be inferred from the reverential moderation with which

I observe that in the Third Report of the the Commissioners have touched the instituCommissioners appointed to inquire in to the tions of their native country, that they would practice and Proceedings of the Superior have stopped at the same point, if they had Courts of Common Law, those very learned been recommending measures for a people who persons have proposed to obviate this last in-have no attachment for the forms of judicial convenience, by providing that the rule nisi procedure existing among them. for a new trial shall express on what particu- 4. I recommend that the pleadings shall lar ground the new trial is applied for, and consist of an oral altercation between the parthat the party in whose favour the new trial ties in open court, and that a minute thereof is granted shall always be precluded upon shall be made by the officer of the court under such trial from entering into any other part the direction of the judge. of the case but that upon which the rule nisi was obtained, unless he should be authorized to do so by the special permission of the Court, to be expressed in the rule absolute.

"This last regulation," the Commissioners observe," would tend materially, in many cases, to diminish the expense of a second trial, and to make its operation more just and equal between the parties. It would also," they further observe, " materially diminish the number of motions for new trials, it being well known that such motions are often made upon grounds little connected with the real justice of the case, but which serve as pretexts for obtaining a second trial upon the general merits of the action." Third Rep.

p. 40.

5. I recommend that at the time of pleading each party shall state the names of the witnesses whom he intends to produce at the trial, and the matters which he expects them respectively to prove, and shall describe the documents which he intends to produce at the trial, and that a minute thereof shall be made by the officer of the court, under the direction of the judge.

6. I recommend that each party shall be subject to cross-examination by his adversary as to the statements made by him in pleading, each party, if he desires it, shall be assisted and as to those relating to evidence, and that by an advocate or proctor, who may examine him in chief, and cross examine his adversary as to their respective statements.

But this improvement will leave untouched the other objections the practice of correcting 7. I recommend that no common subpoena erroneous verdicts by granting new trials, all or subpœnâ duces tecum shall issue to any witwhich will be obviated by placing the power shall be satisfied by the viva voce examination ness at the suit of any party, unless the judge of deciding in the judge, and leaving his de-of the party, that the person against whom the cision to be corrected, as justice may require, subpoena is moved for is a material witness in by the appellate court.

I do not deny that in criminal cases, where the verdict of a jury, according to English law, is binding in substance as well as in name, much benefit has resulted to the ad

the cause, and that the documents to be mentioned in the subpoena duces tecum are material evidence in the cause.

8. I recommend that no motion which, according to the present practice, is grantable unless the court be satisfied by the viva voce by the court upon affidavit, shall be granted,

motion are true.

ministration of justice; but I am of opinion, that verdicts against the direction of the judge have, in general, been verdicts against law, and however desirable it may be that a bad examination of the person upon whose affidalaw should not be executed, it is still more vit the motion would according to the present desirable that a bad law should not exist. practice, be made, that the grounds of the The amendment therefore of the law is the true remedy in such cases, not the organiza9. I recommend, that when any person, not tion of a tribunal to obstruct its execution. a party to the suit, shall be examined vivâ voce I trust your Lordship will not for a moment under the 8th recommendation, he shall be exsuppose that I am obtruding my opinion amined upon oath, and that when any party to upon the reforms which may be expedient in the suit shall be examined viva voce under the English procedure; my only object is to give 6th, 7th or 8th recommendation, he shall not satisfactory reasons why, in recommending be examined upon oath, but shall be liable to for Ceylon an institution in the nature of a punishment under the 11th recommendation. jury for the trial of civil causes, I do not pro- 10. I recommend, that all vivâ voce examipose to imi tate indiscriminately the English nations shall take place in open court, except form of that institution, and, in doing so, I that if the judge shall be satisfied by the vivâ

voce examination in open court of the proctor or in the speeches of counsel, stripped of of a party with or without the vivâ voce exami- irrelevant matter, and reduced to one or more nation of other witnesses in open court, that distinct questions of law or fact, to which such party is unable to attend the court, and question only arguments and evidence are to that irreparable consequences are likely to re- be applied. sult from delay, he may permit such party to Whatever may be thought of the merits of be examined by commission, and that if the this system in England, where there is a large judge shall be satisfied by the vivâ voce exami-body of professional men whose skill and nation of a party with or without the vivâ voce knowledge is scarcely inferior to that of the examination of other witnesses in open court, judges themselves, and where the evils arising that a witness is unable to attend the court, he from secrecy are much diminished by moral may permit such witnesses to be examined by restraints, it is totally inapplicable to that commission. state of society in which the Europeans in Ceylon are called upon to exercise the judicial function.

11. I recommend, that at the termination of the suit, the judge, taking and recording the opinion of the assessors, shall punish by fine or imprisonment, or both, any party to the suit who in his, the judge's opinion, whatever may be the opinion of the assessors, shall have been guilty of an attempt to pervert or obstruct the course of justice.

12. I recommeud the total abolition of all stamps upon legal proceedings, and of all fees of Court.

13. I recommend, that the expenses of the witnesses on both sides in all cases shall be paid by the public.

The connection between these eight recommendations may not at first sight appear quite obvious; but I have found it convenient, in order to avoid repetitions, to state together the reasons which appear to me to justify

them.

Such is the total disregard of veracity among the natives, that not only are the true statements of the opposite party denied in pleading, in the hope that his proofs may fail; not only are false statements made for the purpose of delay, without the intention of supporting them by evidence, but, according to the universal opinion of Europeans and the admission of many natives, such statements are habitually made with the deliberate purpose of imposing them upon the court for truth, by means of forged documents and perjured testimony.

A consultation, then, between a native suitor and his native legal adviser has not in such as it really is, in the most favourable general for its object the presenting his case, point of view which the rules of law permit. It is too often a conspiracy to commit every I shall begin by remarking, that the general species of crime which may conduce to the ignorance and mendacity of the natives, and objects the party has in view; and, this, too, the want of any competent legal practitioners, whether that object itself be just or iniquitous. except in the capital, render it necessary for the ends of justice, that in Ceylon a great deal It may not be possible to prevent such conof legal business which in more highly civil-spiracies from taking place; but it is certainly ized countries is usually transacted by the parties, their counsel and attornies in private, should be transacted in open Court, with the assistance and under the superintendence of the European Judge.

possible to prevent in a great degree the evil from beginning to end, before the European effects of them, by bringing the whole suit, judge and the public, by never suffering the authority of the Court to be used for any purpose whatever until the party who invokes it has been personally examined in open Court, and has thus satisfied the judge that the grounds of his application are true and sufficient.

No parties and their respective advisers. measures are taken to ascertain whether the

The moral and intellectual condition of the natives is such, that the European Magistrates who is to distribute justice among them, can only do so effectually by the exercise of something like a paternal authority; he must allow the parties themselves to come and re-in writing, and are prepared in secret by the Under the present system, the pleadings are late their own story to him; he must be council for both parties, that is, he must be council for each so far as each appears to have truth and justice on his side; he must parties believe themselves the allegations they make. No punishment is inflicted upon a assist them in putting their statements into that form which will show whether there is party who makes an allegation knowing it to really any question between them requiring in precisions and regularity as they are in vebe false. The pleadings are as deficient, too, for its decision the examination of witnesses or documents, or a more deliberate considera-racity. It even appears that the system which tion of the law applicable to their case, and sometimes been already adopted in practice I am recommending to your Lordship has which will also show at any future time pre- from absolute necessity. Mr. Drieberg, a proccisely what it was which, upon that occasion, tor of the provincial court of Colombo, states, transivit in rem judicatam. that "the proceedings in this court are so simple and void of formalities, that the poor natives get the pleadings drawn by private persons, sometimes by the clerks and volunteers in the office of the court, or by whomsoever they can get it done cheaper or gratis,

In England no judicial operation is performed upon the raw material of a suit until it has undergone a very elaborate process of dressing, after which it is presented to the consideration of the judge in the pleadings

which sometimes are so unintelligible, that will be in a great degree, if not entirely, prethe judge on the day of hearings, not being vented. As regards the interest of the witable to comprehend them, taken down the nesses, too, the abusive exercise of that power verbal statement of both parties, and then which must be granted to every man of cominters into evidence, to do which, he adds, | pelling other men to leave their own business, requires much time and patience, as it is and repair with any documents in their posdifficult to get from a native a direct answer session to a court of justice, must, if this reto any question." gulation be adopted, be of very rare occurrence.

I do not at all doubt the correctness of the latter part of this statement; but I think that the end to be attained by oral pleading is well worth the time and patience required, provided the parties are made aware that any attempt to embarrass or mislead the court will meet with certain punishment.

The parties endeavour to deceive the Court now without scruple, because whether they are successful or not in the attempt, they are sure of impunity.

It is to be observed that Mr. Drieberg is here speaking of the provincial Court of Colombo, where such suitors as can afford it, may obtain the assistance of European proctors, an advantage from which the suitors in the other provincial Courts are debarred.

The advantage of vivâ voce examination and cross-examination, as a mode of ascertaining facts over the mode by affidavit is, I believe, universally admitted; and I shall only remark, that in the East the difference between the two, in respect of their probative force and their tendency to prevent perjury, is far greater than in Europe; because, from the defect of moral principle among the Indian races, the frequency of perjury depends aldetection. most entirely upon the chance of escaping

ties would suffer if they were obliged to come to Westminster every time that it may be necessary in the course of a suit to make an application to the court. But whenever the whole suit is conducted at the same place where the trial is had, this argument in favour of affidavit evidence has no application.

in all parts of the country are brought in the In England, however, where actions arising courts at Westminster, all the facts of which the proofs is necessary to justify the court in lending its authority to a suitor, except only Since integrity and knowledge then are those which are proved at the trial, are proved to be found only in the judge, the pleading, by affidavit, because the advantage of having if it is to be of any use at all, must take place them proved by viva voce evidence would be in his presence. The parties must be ex-overbalanced by the inconvenience the paramined by him, and cross-examined by each other. The judge must assist the parties with his advice in putting their statements into regular form. It appears by the year-books, that when the pleadings in England were oral, the English judges used to do so; and on such applications as are made by motion, the granting or refusing which is in the discretion of the Court, they are still in the habit of sug-sulting from the system of local judicatures It is indeed one of the great advantages regesting to the parties that course by, which that, except in the rare cases of sickness or his object may be best attained consistently unavoidable absence, every person on whose with the interests of justice. testimony the court is obliged to rely from the The advantages of precision, and of adher-beginning to the end of the suit, may without ence to forms in pleading, are very great; and overbalancing inconvenience, be made to unthe neglect of them has brought cheap and dergo personal examination by the judge and summary modes of proceeding into disrepute. the opposing party. But those modes of proceeding are by no means incompatible with adherence to forms, and every sort of attempt to pervert the course To guard against falsehood, prevarication, provided only the judge be learned and prac-of justice, I have proposed to invest the judge tised, and the forms palpably and directly with the power of imposing fines at the ter

pointed towards the real end in view.

By means of oral pleading, all that time and money will be saved to the suitors which they now waste in preparing to prove or disprove matters which there is no real ground for contesting, and which an examination of each party by an impartial judge, and by his adversary, would show that there is no real ground for contesting.

mination of the cause; and, at the same time, I have recommended the abolition of all fees of court and stamps upon legal proceedings.

criminately (always in the first instance, and These are in reality fines which fall indissometimes ultimately) upon the honest and victim. Even under the present system, dishonest suitor, upon the oppressor and his where it works as one must suppose its invenBy means of the seventh recommendation, tors intended it to do, such fines are really subornation of perjury and forgery of docu-paid, although not eo nomine, by the party who mentary evidence, crimes of which the fre- is found to be in the wrong. They consist of quency strikes every European with horror, the fees and stamps upon his own proceedwill be rendered comparatively difficult. By that part of it which regards subpoenas, that monstrously abusive practice, now so common, of summoning a multitude of immaterial witnesses for the purposes of afterwards moving for delay on the ground of their absence,

ings and those upon the proceedings of his adversary, which he is made to reimburse under the name of costs. The question, therefore, which the judge will have to decide, viz., who is to be fined? will be no other in substance than the question which he now

It is very important to remark, too, that when fines upon the misuse of legal proceedings are disguised under the name of costs, they no longer bear the appearance of a punishment; they are not apportioned, as they ought to be, to the wealth and the delinquency of the party fined, and they do not bring upon him any of that obloquy which ought to be attached to his conduct.

has to decide, viz., who is to pay costs? but not follow that the indiscriminate infliction the fines, instead of operating, as they now of fees and stamps is defensible, but in reality do, to deter those who are seeking to protect there is no impossibility in deciding when the their rights by legal proceedings, will operate proceedings are terminated, whether any only to defer those who use such means for party has availed himself of the services of purposes of fraud and oppression. the court honestly or fraudulently, provided at every step those means be adopted which are admitted in other cases to furnish an effective criterion; consequently there is no for suing or defending himself honestly, or good reason why any man should be punished why any man who sues or defends himself dishonestly, should escape with impunity. As vexatious law proceedings are one of the most common modes by which the native of Ceylon seek to gratify their malignant pasWith regard to any portion of revenue sions, the practical application of the prinwhich may be lost by the alteration I suggest, ciples in that country is of the utmost imit can be that portion only which constitutes portance, and this must be my apology to a tax upon oppressed innocence, and I appre- your Lordship for the length of the present hend that no legislator would ever have discussion. thought of proposing such a tax, if its iniquity had not been concealed from his view by being mixed up with the general mass of tax upon law proceedings from which it is, by the proposed plan, distinctly separable.

The reasons why I have preferred the imposition of fines at the termination of the cause to the administration of an oath, and the consequent penalties of perjury, in the suit, are as follows. case of the examination of a party to the

Moreover, inasmuch as the fines to be imposed by the Court will be regulated in amount by the delinquency of the party on whom they The parties to the suit being before the fall, and his pecuniary ability, the revenue court from the beginning to the end of the derived from this source may very possibly proceedings, and having the opportunity of not be diminished at all. Any future reduc- offering all the evidence and arguments which tion of it can only take place by the diminu- can throw light upon their own statements, tion of that species of crime which consists in the abuse of legal proceedings, an effect which would amply compensate the government and the community for the pecuniary loss.

the matter of defence for a party to the suit suspected of endeavouring to mislead the court is not, as the matter of defence for a witness accused of perjury often is, extra. To call the abuse of legal proceedings a neous to the suit; the judge, therefore, at crime, seems almost like an innovation in lan- the termination of the proceedings, is in a guage, yet in the primitive days of jurispru- condition safely to exercise his discretion in dence there are traces of punishment de-fining the party, as he in fact now exercises nounced against such conduct. Such was it in deciding the matter of costs, without the the fine pro falso clamore in our own ancient delay and inconvenience of a separate trial But even if system. But in latter times it seems to have upon the incidental question. been thought impossible to separate the abuse this were not so, I should be very unwilling to recommend the administration of an oath in of legal proceedings from the legitimate use of them, and the fine has been imposed not Ceylon in any new case. The oaths adminispro falso clamore, but simply pro clamore. The tered to the votaries of the various religions suitor has been visited with a pecuniary mulet prevailing in that island, are for the most part for telling his story to the tribunal appointed accompanied by minute and superstitious to redress his grievances, and at the same time ceremonies, the effect of which is to keep out stamps and fees of Court have been defended of view the great moral duty of veracity. upon the alleged ground that they discourage not upon the man who falsely swears away The anger of the gods is supposed to light, vexatious litigation, whereas in truth they the life or property or reputation of his neighdiscourage litigation in general, when the party desirous to litigate is poor, and where bour, but upon the man who swears falsely the party is rich, they encourage vexation by dress, or tasted the water of the sacred river. after he has stepped over part of his own

rendering a law-suit a more efficient instrument of oppression.

The object to be aimed at is, that the services of the tribunals should be afforded gratuitously to those who ask them bonâ fide, but that those who ask such services mala fide should not only not receive them gratuitously, but should be made to pay a heavy penalty for the abusive exercise of an essential privilege.

In most cases, too, the oath is administered not by an officer of the court put by a priest. When the witness is a Bhoodhist, it is administered in the temple after the evidence has been given in court, and it is not to be doubted that by a little management in the ceremony, false testimony may be procured without loading the conscience of the witness with the guilt of perjury.

Keeping constantly in view the principle, If the attainment of this object, or a reason- that just litigation is to be encouraged, and able approach to it, were impossible, it would unjust litigation disencouraged, I have recom

mended that the expenses of witnesses in all cases shall be paid out of the fund created by the fines.

shape as will increase to the greatest possible amount the burthen of proof resting upon the opposite party, and thereby to waste the time of the judge in superfluous investigations. believe, therefore, though upon this point it is impossible to speak with perfect confidence, that the time which the court will upon a suit will, on an average, be less under the proposed plan

have to bestow

than it now is.

It is certainly the duty and the interest of government (in the East, it is most emphatically so) to provide for the complete administration of justice at the public expense; and I know of no reason why an honest suitor should be made to pay the expenses of those witnesses who are to prove his case, any more than to pay the salary of the judge who is to hear it, except it be true that the waste or misuse of the services of a judge by the suitors can be restrained, and that the waste or misuse of the services of witnesses cannot. It is unquestionably true, that under the circumstances of Ceylon, this waste and misuse of the services of witnesses is carried to an enormous extent. Your Lordship has already seen, upon the testimony of Mr. Justice MarEven in this country the evils of which I shall, that in the criminal proceedings before am speaking are not unfelt. The Commissithe supreme court, the prisoners whose wit-oners for inquiry into the Practice and Pronesses are paid by the public, frequently sum-ceedings of the Superior Courts of Common mon upwards of 100, who know nothing what-Law have pointed out their existence, and ever of the matter in question; but this glaring abuse, inasmuch as no attempt is made to check it, furnishes no argument against the provision recommended in the 13th recommendation, when coupled with the securities recommended in the 7th recommendation.

But however that be, the prevention of injustice, and of those crimes by which in Ceylon injustice is perpetrated through the forms of law, is an object of such extreme importance, that I should earnestly recommend the plan under consideration to your Lordship, though some sacrifice of time and of public expense might be necessary for its accomplishment.

constituted, and taking the legal affairs of the people completely under its supervision and protection, would be a more efficient instrument for the eradication of their prevailing vices than any other which a European government can apply to that most essential purpose.

have suggested remedies for them. But in Ceylon, where crimes of so deep a die as perjury and forgery are as common as the more venial arts of chicanery are in European countries, the interests of morality imperiously require the total reform of a system When it is considered that under the pre- which affords scope and temptation to the sent system, the provincial judges are not in-commission of such enormities, and I sintrusted even with the power of rejecting irre-cerely believe that a court of justice well levant evidence in appealable cases, it may be thought that too much power and discretion is given in my plan to the judges of original jurisdiction; but if I have increased the power and discretion of the local judges, I have increased their responsibility in a still greater degree by the regulations regarding assessors, which I have had the It must not be forgotten, too, that a native honour to submit to your Lordship, and by of low caste has no chance of obtaining redress the regulations regarding appellate jurisdic- against his superiors but through the medium tion, which I am about to recommend. I of Europeans. The English judge, under the have substituted the restraint imposed by the present system, may indeed take care that sense of responsibility, which adapts itself to justice is done to him when his case has been the circumstances of each particular case, for proved in court; but who will advise him as the restraint imposed by inflexible rules, by to all the steps he must take before he reaches which the progress of every case towards a that point? Suppose a Rhodiah, a man acjust decision is obstructed, and that of many counted so vile that his countrymen will not cases stopped entirely, in order that the re-endure that he should serve them as a slave; mainder may be protected from judicial malversation.

suppose such a degraded creature to have received something which even his broken spirit can feel as an injury, to say that the courts, as they are now constituted, are open to such a man, is no better than a most cruel mockery.

It may also be supposed that when the whole suit is thus brought in its rude state before the judge, so much time will be consumed in performing those operations in court which are now performed without any judicial superintendence, that a greater number of which human ingenuity can devise will remedy I do not indeed hope that any institution functionaries will become necessary to trans-the inequalities which the pernicious system act the increased business. of caste has added to those existing by nature It must be remembered, however, that when between man and man; but I cannot doubt the legal adviser of the party draws the that the spectacle of a European judge listenpleadings and prepares the evidence to sup-ing in public with attention and kindness to port them in secret consultation with his the complaints of the degraded races, and client, it is by no means his interest to pre-instructing them in their legal rights, and the sent the case to the court in such a form as means of enforcing them, would gradually will facilitate a speedy adjudication upon eradicate the absurd and hateful prejudices the merits, but rather to present it in such a by which the common feelings of human na