Page images

ture are prevented springing up in the breasts of our Indian fellow subjects.

I trust I shall be pardoned for making in this place a remark which has often pressed itself upon me. That the peculiar circumstances of Ceylon, both physical and moral, seem to point it out to the British Government as the fittest spot in our Eastern dominions in which to plant the germ of European civilization, whence we may not unreasonably hope that it will hereafter spread over the whole of those vast territories.

14. I recommend that an appellate jurisdiction of the most comprehensive kind over all the courts of original jurisdiction in all parts of the island shall be vested in a circuit court of appeal, which shall consist of one judge of the supreme court and three assessors, which assessors shall be chosen in the same way and shall perform the same functions as the assessors in the courts of original jurisdiction.

15. I recommend that the supreme court shall consist of three judges, a chief justice and two puisne judges, who shall however never sit together, except for the decision of such points of law as any of them may have thought it necessary to reserve in deciding the cases submitted to them on their circuits, under the 18th and 19th recommendations.

[blocks in formation]

this can be done, his court is an open court only in name, and all the evils of secret judicature may be expected.

Secondly, that there be some means of preserving the unity of the law, which cannot fail to be impaired by the decisions of a number of independent judges. even though they should be animated solely by that public spirit which is kept alive by the substantial publicity of the tribunals.

The latter purpose might perhaps be attained at the cheapest rate by means of an appellate tribunal resident at Columbo to which the records of cases tried by the court of original jurisdiction might be transmitted by the post, but such a tribunal could not be effectual, even for this purpose, unless a much greater degree of method regulated the proceedings of the local courts than is now the case ; and it would be almost powerless for the still inore important purpose of impressing upon the local judge the consciousness of unremitting supervision, and upon the suitors in this court the assurance that their just complaints will be attended to and redressed.

This will, I hope, be accomplished as completely as the state of society in Ceylon will permit, by the recommendations respecting assessors, and by sending the appellate judge periodically to the places where the causes were originally tried, and thus giving the parties and their witnesses the same cheap and easy access to him as they had to the judge of original jurisdiction.

19. I recommend that the judges of the supreme court on their circuits shall continue to try in the Maritime provinces such crimes as they now try, and with a jury constituted as the juries now are, and shall try the same crimes in the Kandyan provinces with a jury constituted in the same manner.

I shall not trouble your Lordship with any other reasons for this recommendation than the good effects already produced in the Maritime province by the institution of juries, the attachment of the natives to it, and the propriety of distinguishing the trial of the graver crimes by some more solemn and impressive proceeding than is used in other cases.

20. I recommend that the powers and duties of the advocates-fiscal and deputy advocate-fiscal shall be exercised in the Kandyan provinces, so far as regards procedure, as they now are in the Maritime proW. 1 in CeS.

21. I recommend that the judges of the supreme court shall have no original jurisdiction, except that specified in the 19th recommendation.

When an itinerant court exercises an origi

nal jurisdiction, all the proceedings preliminary to the trial must either be carried on, as in England, at the capital where such court has its permanent station, or there must be resident in each district an officer exercising many most important functions, both material and judicial.

[blocks in formation]

* My objection to this argument is, that the common division of causes into those of large and those of small amount, on which it is founded, is both unreasonable and invidious. A Magistrate who is competent to try the one sort is competent to try the other, the division is therefore unreasonable; and as causes of large amount are generally the causes of the rich, and causes of small amount are generally the causes of the poor, it is invidious to refer the latter to a tribunal which is stigmatized as unfit to try the former.

The chief justice's plan might indeed be extended to all cases without reference to the value in dispute; but if there are to be local functionaries of talents and respectability, which render them competent to adjudicate all the questions which arise in the process of preparing a cause for trial or hearing, I think it is clearly expedient that they should also have the power of deciding the cause in the first instance, and that the functions of the metropolitan judge should be confined to those of an appellate judicature, it being always understood that I speak of an appellate judicature, from appealing to which there is nothing to defer the suitor but the fear of being fined if his appeal turns out to be vexatious.

I think this is clearly expedient, because it saves time whenever the parties are satisfied that the cause has been fairly tried by the local Judge, and because in all cases it obviates the irreparable evil which may be occasioned by the death of witnesses, or the loss or destruction of written proofs between the period at which the cause is ripe for trial, and the arrival of the metropolitan Judge in the district where it arose.

My reason for recommending that the original civil jurisdiction now exercised by the Supreme Court in the district of Colombo shall be abolished, is that I apprehend that the appellate jurisdiction of the whole island, and the general superintendence which, by recommendations 22 and 23, I propose that this court should exercise in addition to that exercised by way of appeal upon the motion of a

* This objection does not apply to the decision of criminals' causes according to the gravity or levity of the accusation; the correct decision of the former of really more important to the Publi', welfare than that of the latter. On this account and in sonsideration of the predilection which I believe to be entertained by the natives for the criminal jurisdiction of the Supreme Court ** it now exists, I have preserved it by Recommendation is,

party, will be amply sufficient to occupy the time of all its Judges. 22. I recommend that the Judges of the Supreme Court, whether at Colombo or on circuit, shall receive applications in writing from the Judges of original jurisdiction for advice upon all matters of law and practice, and shall return answers in writing thereto. 23. I recommend that each Judge of the Supreme Court, whether at Colombo or on circuit, shall hear motions for mandates in the nature of writs of habeas corpus, mandamus and prohibition, and shall do tiereupon what justice may require. 24. I recommend that no Judge or court shall hear motions for injunctions to prevent a party from seeking or pursuing his remedy in other court. The reason of this negative recommendation is, that according to my plan, every matter which would be suslicient to authorize the Judge to grant an injunction to prevent a party from suing, for example, in a court of original jurisdiction, will be sufficient, when brought before such court of original jurisdiction, to authorize the court to give a judgment having the same effect as an injunction not to sue. The principle on which the recommendation rests is, that every court of original jurisdiction should have, by law, the power of doing justice in every case, and consequently that, so long as the proceedings of such a court are free from error or malversation, there should be no power in any other court to thwart or control them either directly by interference with the court, or indirectly by interference with the suitor. 25. I recommend that the Judges of the Supreme Court shall look over the records of the courts of original jurisdiction, and in case they shall observe that the law has been laid down differently, or that the practice has varied in the different courts of original jurisdiction, shall take a note thereof, and shall consult together thereupon, and shall draw up a draft of such a declaratory law as the case may seem to them to require, and submit the same to the Governor, who shall thereupon pass, with the usual legislative forms, such law as the case may seem to him and to those who may partake with him in the legislative function, to require, without prejudice however to the right of the Governor, and such persons so partaking with him in the legislative function, to legislate upon these, as upon all other subjects, without such recommendation. The expense of the actual judicial establishments, described in the first part of this Report, is 36,245l.” ; and I cannot under

c' Annual expense of the present Judicial Establishment of eylon. to. Supreme Court, Provincial Courts, Magistrates' Cour

Judicial Commissioner, Kan ***. Magistrate, Kandy,.......... 315 Judicial Agent, Knrunegalle, . . . . 272 14 Half of the fixed Establishment of agents of govern "o", . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - - - - - 2010 10 – Contingencies fixed, . - 53- 7 2 Qontingencies unfixed, ... . . . . -- so 6 6 Circuit of the Supreme Court,.... . . . . . . . . . . . . . . - 872 4 3

Total per Annun, ... . . - - - - - - - - - - - - - - - - - - e 3021, - il

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors]

It is now fast approaching a period of twelve years since the signature of this important Treaty between their Britanic and Netherlands Majesties—a Treaty which has to compose the differences, lull the jealousies and suspicions, and allay the irritation which ages of rivalry in the Eastern seas had produced between the two nations—and this desirable consummation was to be effected no less by the exchange of territory agreed to in the Treaty, than by the provisions it was intended and supposed to contain for placing the commerce of both in the East upon a footing mutually beneficial, by establishing a principle of reciprocity in their commercial relations. In the arrangements about territory, comprised in the Treaty, we see nothing to remark or deprecate—but, with respect to those stipulations which refer to commerce, whether from superior diplomatic tact on the part of the Dutch plenipotentiaries—whether from the use of vague and comprehensive terms, which allows the means of nullifying or evading their true sense, or whether from apathy on the part of our own government in subsequently enforcing their due observance by the Dutch,

we have no reason to congratulate ourselves on that portion of the Treaty. As regards our commerce with the Dutch possessions in the East, the Treaty has in fact accomplished nothing, or something worse; and, with all the disposition, the Dutch seem to have been, or to have considered themselves, left by it, with all the power they formerly possessed, to impose duties at discretion upon British trade, without the slightest regard to those terms upon which they have been allowed, according to the Treaty, to conduct their trading operations in the ports of British India. . That such a state of things, the very opposite of that reciprocity it proclaims, should have been intended by the Treaty, would we think be absurd to suppose; are we then to conclude that such a position of affairs involving a de

parture from the terms, or a violation of the spirit and principle of the Treaty, has continued up to the present time without attracting the interference of our legislature, or inducing a single effective representation on the subjects!

Before, however, proceeding further in our remarks, we think it right to lay before our readers those articles of the Treaty to which we have been referring :

Article 1st. “The high contracting parties engage to admit the subjects of each other, to trade with their respective possessions in the Eastern Archipelago, and on the continent of India, and in Ceylon, upon the footing of the most favored nations; their respective subjects conforming themselves to the local regulations of each settlement.

Article 2d. “The subjects and vessels of one nation shall not pay upon importation or exportation, at the ports of the other in the eastern seas, any duty, at a rate beyond the double of that at which the subjects and vessels of that nation to which the port belongs are charged.

“The duties paid on exports and imports at a British port, on the Continent of India, or in Ceylon, on Dutch bottoms, shall be arranged so as in no case to be charged at more than double the amount of the duties paid by British subjects, and on British bottoms.

“ In regard to any article upon which no duty is imposed, when imported or exported by the subjects, or on the vessels, of the nation to which the port belong, the duty charged upon the subjects or vessels of the other, shall in no case exceed six per cent.”

If it is not easy to perceive how these articles, taken together, could without the assistance of a quibble or an evation, receive any interpretation or construction which did not plainly infer a principle of commercial reciprocity, it becomes still more difficult to allow any thing else, when the preamble of the Treaty is considered in conjunction with the notes addressed to each other by the plenipotentiaries of the respective powers before its signature. The preamble is as follows:–

“ His Majesty the King of the United Kingdom of Great Britain and Ireland, and his Majesty the King of the Netherlands, desiring to place upon a footing mutually beneficial, their respective possessions, and the commerce of their subjects in the East Indies, so that the welfare and prosperity of both nations may be promoted, in all time to come, without those differences and jealousies which have in former times interrupted the harmony which ought always to subsist between them &c. &c."

The note of the British negociators is conceived in such spirit as the following, viz:

“ In proceeding to the signature of the

Treaty which has been agreed upon, the plenipotentiaries of His Britannic Majesty

have great satisfaction in recording their sense of the friendly and liberal spirit which

has been evinced by their Excellencies the plenipotentiaries of His Netherlands Majesty;

and their conviction that there is on both

sides an equal disposition to carry into effect, with sincerity and good faith, the stipulations of the Treaty, in the sense in which they have been negotiated.”

“They willingly acknowledge the readiness with which the Netherland's plenipotentiaries have entered into stipulations, calculated to promote the most perfect freedom of trade between the subjects of the two crowns, and their respective dependencies in the Eastern Archipelago.”

“They feel assured that under the arrangement which is now concluded, the commerce of both nations will flourish, and that the two allies will preserve inviolate in Asia, no less than in Europe, the friendship which has from old times subsisted between them. The disputes being now ended, which, during two centuries, have occasionally produced irritation, there will henceforward be no rivalry between the English and Dutch nations in the East, ercept for the more effectual establishment of those principles of liberal policy which both have this day asserted in the face of the world.”

The Dutch plenipotentiaries are less eloquent and much more reserved, in their reply, upon the freedom of commerce which the British so readily proclaim, but their acknowledgment of its principle is sufficiently obvious in what follows:—

The essential aim and principal tendency of the treaty is evident to all who read its different articles with attention. What is therein expressly stipulated ought to suffice for the removal by common consent, of all uncertainty which might present itself in the sequel.”

“The seventh article" contains an exception to the general principle of liberty of commerce.”

“It only remains for the undersigned to unite their wishes with those of their excellencies that their respective agents in their Asiatic possessions, may ever shew themselves sensible of the duties, which two friendly nations animated with truly liberal views, have to fulfil, both with reference to each other, and also towards the natives whom the course of events or treaties have placed under their influence.” | What could be added to all this in order to give better assurances for the future than it holds out ! A British public were surely entitled to expect, from such liberal professions and lofty announcements, that some beneficial change in our commercial relations with the Dutch Eastern possessions had been carefully provided for, and would accordingly take place. But what after all ensued At the very time the negotiations were pending which ended in the Treaty, a proclamation + was issued in Batavia by Baron Vander Capellan, the then Governor-General of Netherlands India, imposing an ad valorem duty of 25 per cent. upon all foreign cotton and woollen manufactures imported from the westward of the Cape, whether on Dutch or foreign bottoms, and of 35 per cent. if imported from any foreign settlements eastward of the Cape, while their own manufactures of the same description were imported free, and have continued upon the same footing up to the present time. And not only have these duties never since been reduced, but, on the contrary every succeeding measure of the Dutch Government, relating to duties, has had it in view to augment the burden. Take for example the indirect and unfair means they took of accomplishing that object, and at the same time of gratifying their “Trading Conpany,” by causing in 1828 the taxation of the value of our cotton and woollen importations, to be made at the Custom House at Batavia, instead of as formerly by a merchant of each nation, and where a purposed augmentation of the invoice cost was made of full 30 per cent. before any duty was levied ; which. by this unworthy and underhand course, was increased to 35 and 40 per cent. '

Such are some of the fruits of the Treaty which appears intended to fix and limit the extent of duties chargeable by each nation upon the goods of the other and which instead of effecting any thing of the kind with regard to the British, has left us open to a system of restriction and prohibition which may be carried to any extent—sor, if there be nothing contained in the terms or spirit of the Treaty which limits the [Yutch to a specific rate of duty, there can be nothing to prevent their quadrupling the duties as they now stand whenever they may conceive such a measure conducive to their own interest. We are then, it seems, inevitably led to the conclusion either that there is nothing in the Treaty securing, or intending to secure for us, the reciprocity talked of—that all the eloquence on the part of the British negociators about the “most perfect freedom of commerce” and so forth, is no more than so much mere holyday talk— and that, in short, the Treaty itself, in respect of its commercial stipulations as affecting the British, is only so much waste paper :—or, we must be compelled to assume that the Government of Netherlands India has persevered, and been allowed to persevere, in a system which involves the most gross and open violation of nearly all the stipulations relating to commerce which the Treaty contains. The question indeed seems to offer itself in no other point of view ; and if the spirit in which the negotiation was conducted, and the principles recognised by both parties, are all on our side, as assuredly they are, what is there in the mere wording of the articles of the Treaty which can guard the Dutch against the imputation of unauthorised aggression upon our commerce in their Eastern ports 2 The arguments which we heard advanced by or for the Dutch in favour of their right under the Treaty to impose the duties complained of, appear of the most vain and trisling nature;

* The article in question refers to the Spice Islands of the Moluccas.

+ Dated the 11th February, 1824.

able portion of these articles, have this year necessarily confined themselves to the purchase of Indian cotton goods to which the prohibition does not extend, they continuing at a duty of 35 per cent. That this oppressive measure is mainly directed against the trade of this settlement no one can for a moment doubt—as little is it to be questioned that it is not likely to be attended with all the success desired, for restrictions of that nature are the best of all calculated to promote successful smuggling.

That such attempts on the part of the Dutch to depress our commerce in the Eastern seas, wherever they possess adequate means or influence, are not only in direct violation of that understanding which the treaty was intended to create, but at the same time, constitute acts of the most flagrant impolicy, is, we conceive, undeniable. That policy which labours to raise up obstacles to commerce, to fetter its tendency, and contract its limits, in the vain hope of establishing a system approaching to monopoly, will, in the end, assuredly prove most injurious to those who indulge in its exercise. The Dutch could not pursue a more hurtful and iniquitous course towards their colonies in the Eastern seas than they are now

and, if we were to listen to and adopt their in- doing, by endeavouring to shut out our manu

terpretations of its commercial stipulations, factures from their ports.

It could easily be

England would be represented as having ne- shewn, what experience has already proved,

gotiated for the sole and important privilege

of importing and exporting on her own ships, their colonial revenues.

at specified terms, Dutch goods at one of their ports in the East—a boon well worthy the consideration of the largest manufacturing nation of the globe. But, thanks to the ambiguity of words, the bad faith and insincerity of the Dutch goverment, or the apathy or pliancy of our own, that paltry and insignificant privilege is all we have yet obtained by a Treaty respecting which there was such an abun. dance of favourable augury. All then that this boasted “freedom of commerce” amounts to would appear to be, that vessels were free to carry our goods and manufactures to one Dutch Eastern port, and the Dutch were free to impose upon them whatever duties they thought fit !

It is true the state of affairs here commented on, affords no new cause or source of complaint—and that the grievance is now of about a dozen years standing. But, besides that it does not appear altogether too late to inquire whether the evil is irremediable, our attention has been recently drawn to the subject by renewed attempts on the part of the Dutch to impose further and still more oppressive restraints upon our trade at their out-ports in the Archipalago. . At Macassar the duty upon our cottons and woollens, imported from this place, was, last year, raised from 35 to 70 per cent; and this year their direct importation from this port at that settlement is altogether prohibited, unless cleared out from Batavia, or the minor ports of Sourabaya and Samarang, where they still continue subject to a duty of 70, per cent. The consequence has been that the Bugis traders from that port, who used annually to export from this a valu.

that an opposite course would greatly add to Is it then expected, by imposing such burdensome restrictions upon the importation of British cottons and woollens into Java, to secure a consumption among its six millions of population of Dutch articles of the same kind, and convert Holland into a great manufacturing nation 2 No policy could be more short-sighted. Holland possesses no facilities for the operations of manufacture, and her home consumption of such articles amount to next to nothing. In the course of events she may lose Java as she lost Belgium,_and what then would be the situa

tion of her capitalists and manufacturing po

pulation who had been engaged and trained up in a branch of industry, foreign to the natural means and wants of forcing and blostering, for the produce of which she had lost her best and only market?

It is probable that some representation, upon the subject of these observations from the merchants of this place, aided by their friends at home, would not be considered unworthy of attention by government, and would eventually lead to the fair opening of so desirable a field for our capital and enterprise. “British capital and enterprise raised Calcutta in the short space of half a century to be the wealthiest and finest city the East ever saw. They raised Madras midst the sands of the Carnatic in the same period to the second rank. They converted the barren island of Bombay into the second commercial city in Asia. They have rendered Canton superior in wealth and population to the Imperial city. In six years they collected 12,000 industrious inhabitants in the hitherto desert and barren island of Singapore, who instead of commit

« PreviousContinue »