The petition presented to Colonel Colebrooke | conveys to the minds of those bred in a counand myself, stated facts which seemed to us to try like England, where a very large portion call for some inquiry on our part, as being of rights is removed from the cognizance of illustrative, if true, of the mode of proceed-courts of law. to be the facts of the case. legally competent to perform, has been induced to perform through fear, fraud, error, &c., nor can they relax the general rules laid down for regulating their own proceedings, upon the ground that such rules are productive of injustice in the particular case. ing in the provincial courts. We did ac- All that the expression means, when applied cordingly inquire, and the following appeared to the provincial courts in Ceylon, is, I believe, that they cannot grant the two sorts of Hettige Isabella Perera, a minor, who pre-relief known to the Dutch Roman law," Resented the petition, was the daughter of Het-stitutio in integrum,” and “Judicial Relief;" tige Justina Perera. Upon the death of the that is to say, that they cannot relieve a party latter, administration was granted by the pro-against such of his own acts as he, being vincial court of Colombo, and on the 22d June 1819, the sum of 759 r.ds. 7 f. was paid into that court by the administrator, as the share of the minor. This sum was deposited in the cutcherry of Colombo, and out of it a sum of 750 r.ds. was lent, on interest, to one A. P. Dirksz, on the 28th July, 1819. In May, 1820, a sum of 50 r-ds. 7f. 2p., arising from interest on the sum so lent out, was paid to one Garetooregy Gabriel Perera, for the maintenance of the minor. On the 22d November, 1820, A. P. Dirksz paid into court the sum borrowed, 750 r-ds., and 38 r-ds. 3f. for further interest, both which sums were deposited in the cutcherry of Colombo, and which making together, with the balance of 9 r-ds. 7f. then in deposit, a total of 797 r.ds. 10f., remained unproductive in the cutcherry until the 24th September, 1830, and where it might have remained unproductive until the minor attained her full age, as it seems to be no part of the duty of the judge, or of any officer of his court, to look after the interests of minors. Some time previous to the 6th April, 1830, the minor presented a petition to the Governor, stating that she was in a destitute condition, and praying that the money to which she was entitled might be made available for her These are powers both incident to courts of law in England, though the latter is called their equitable jurisdiction, and which every court is fit to be entrusted with which is fit for the administration of justice at all. The proceedings of the local judges are very insufficiently controlled by appellate judicatures. There are four minor courts of appeal, one at Colombo, one at Jaffna, one at Trincomale, and one at Galle. The constitution is still more defective than that of the courts of original jurisdiction. The judges who preside in them, like those whose decisions they are appointed to correct, have no education adapted to their functions; they sit without jury or assessors, and their proceedings attract less attention than those of the courts of original jurisdiction. The minor court of appeal at Colombo may be taken as an example. The judges who sit in it are four in number, so that their responsibility would be quartered, were it not so small as to The petition was referred by the Governor be practically indivisible. They are, the proto the provincial judge of Colombo, who re-vincial judge, the sitting magistrate (two of ported that the court had offered the sum in the functionaries from whom the appeal lies), question" to the petitioner, or any other per- the commissioner of revenue, and the collecson on her behalf, to take, on giving sufficient tor of customs, all persons whose time ought security, for the benefit of the minor." support. On the 24th September, 1830, the money was paid to Henry Augustus Marshall, Esq., who, at the request of the minor, had been appointed her guardian, on his giving the requisite security. At the rate of interest which may be obtained in Ceylon, the fortune of this girl (for such a sum is really a considerable fortune to a native girl) would have been more than doubled, had it been the duty of any responsible person to see that it was properly employed. to be fully occupied with their duties. The Regulation of government, No. 5, of 1809, by which the minor courts of appeal were established, provides that they shall be competent to receive appeals from the decisions of all the provincial and other inferior courts within their respective jurisdiction in all civil cases whatever, under the amount appealable to the high court of appeal, that is to say, under 301. If the constitution of the minor courts of appeal had been such as to insure in any degree correctness of decision, the absence of The courts of the sitting magistrates have all limitation downwards of the right of aponly criminal jurisdiction, and that sort of pealing to them would have been highly comcivil jurisdiction which is usually called or- mendable; for it is unquestionably in those dinary civil jurisdiction; but the provincial causes which are usually called trifling, in courts have, I believe, every species of juris- those causes the correct decision of which is diction; it is said, indeed, that they have no of most importance to the happiness of the equitable jurisdiction, but such an expression, people, that every motive ab extra which can when used in referenee to a country in which stimulate the attention of the judge, and imthe Dutch Roman law prevails, has a meaning press him with a sense of responsibility, should every different from that which it commonly be brought to bear upon him. Those who have legislated for Ceylon, how-| cial establishment so contrived as that the ever, have been of a different opinion. By very same attention and discrimination should Regulation No. 9, of 1814, the appeal from be employed upon their causes as upon those the provincial courts is taken away, when the of their affluent neighbours. value in dispute does not exceed 15l., and the Your Lordship will find accordingly that appeal from any other courts of inferior the sort of appeal which I shall recommend jurisdiction is taken away, when the value in will be extended to all cases, without referdispute does not exceed 17. 17s. 6d., except-ence to the value of the object in dispute. ing in cases "wherein the title to or possession of landed property shall directly or indirectly be in question." The preamble of this latter Regulation is remarkable; and as my opinions are altogether wrong, if the doctrine assumed by it be right, I shall offer a few remarks upon it. stituted than the minor courts of appeal, so The high court of appeal is better confar as regards competency for the decision of legal questions, inasmuch as the two judges of the supreme court are members of it. The other members are the Governor, the chief secretary, and the commissioner of revenue, The preamble recites, that "it is found by who, as far as regards any legitimate purposes experience that the right of appealing to the of judicature, are superfluous, and whose minor courts of appeal in cases of trifling time ought to be occupied with other duties. value, serves only to encourage petty litiga- This court is furnished by the 92d section tion." of the Charter of 1801, with very ample powThat experience should show this, cannot ers for correcting the mistakes and abuses of indeed be a matter of surprise to any one; but the subordinate jurisdictions; but as it sits experience has never shown that all petty always at Colombo, its judgments must in litigation is an evil, or that petty injustice, general be founded upon such matter only which is a most grievous evil, can be pre-as appear on the records transmitted from the vented or remedied by any other means. A courts in which the suits have been originally suit for a sum under 17. 17s. 6d. may indeed decided, as the instance of most of these seem an object of contempt to an European judge. Considering any individual case by itself, he would probably rather pay the amount claimed than be at the trouble of examining and deciding the question between the parties: but in the eyes of a native of Ceylon of the lower class, such a sum appears, and with great reason, an object of very high importance, an object, the unjust detention of which is calculated to excite in his mind the most violent animosity against the person who commits the wrong, and the government which fails to redress it. courts from Colombo must make the bringing of witnesses thither an operation so difficult and expensive as to be beyond the means of ordinary suitors. When, therefore, I consider the general ignorance and poverty of the native suitors, and the general ignorance and dishonesty of their native legal advisers, together with the servility of both towards the Europeans in authority over them, it seems to me that the only mode of combining that unity which is every where essential to an appellate jurisdiction, considered as the ultimate expounder of Among all the duties incumbent on the the law, with that ubiquity which in Ceylon it British rulers in the East, it is impossible to must possess in order to be effectually accesname one more imperative than that of pro-sible to the native suitors, and effectually to viding for the effectual decision by public control the local judicatures, is to send one authority of the disputes arising among the appeal court on circuit through the whole poorer classes, in other words, of providing island to hear and determine appeals in causes for those classes the means of carrying on of all kinds; and this is accordingly the meathat petty litigation which this preamble so sure which your Lordship will will find recomcontemptuously stigmatizes. There is no be-mended in its proper place. nefit which a European government can confer By the 88th section of the Charter of 1801, upon its Asiatic subjects of the poorer class the high court of appeal is declared to be "a so valuable, and no means by which it can court of civil jurisdiction for the hearing and secure the permanence of its own dominion determining appeals from all or any of the so honourably and effectually as this, and it courts of justice established or which may be is a benefit which none but an European go- established within the said settlements and vernment can confer. There is no way in territories in the island of Ceylon, with their which such part of the public property as the dependencies," except the supreme court. government might think fit to devote to elee- These words seem to hold out a promise of mosynary purposes, can be so beneficially something like an uniform system of appelemployed as in paying judicial establish-late jurisdiction. But, as by the 90th section ments, by which the poor may obtain really gratuitous justice. of the same Charter, the sum or value appealed for must exceed 301.; and as the sitting magistrates, who try the far greater number of civil causes, are not competent to try causes of that description, the benefit of this appeal is in fact confined to a small portion of the suitors in the provincial courts. The misery and resentment of a poor man suffering under an act of injustice are most cruelly aggravated by the contempt with which the legislative and the judicial powers thus openly treat his misfortunes, and I can conceive no tie which will bind the lower peo- The returns which we possess do not enable dle so strongly to their government, as a judi- 'me to ascertain accurately what the propor tion is between the causes which may be carried up to the high court of appeal and those which cannot, that is to say, between the causes in which the value in dispute exceeds 301., and the causes in which it does not exceed that sum. But these returns exhibit for the years 1826, 1827, 1828, and half of 1829, the proportion between the causes in which the value in dispute exceeds 221. 10s., and the causes in which it does not exceed that sum In consequence of that Report, Sir George Murray was pleased to recommend to His Majesty to pass an Order in Council, which has established the power of the court to issue the mandate. In the proper place, I shall recommend the union in one court of all those functions by which the proceedings of original judicatures of all sorts are superintended and controlled. must be reckoned the supreme court, though Among the courts having local jurisdiction diction over all the dominions which His Majesty had in Ceylon at the time of its establishment, that is to say, over all the maritine provinces, and its criminal jurisdiction and fiscal jurisdiction extend to all persons in those provinces. In respect of its dignity, of the qualifications of its judges and the expense of its establishment, the supreme court ought to hold the first place among courts of local and original jurisdiction; but in respect that it transacts only a very trifling portion of the business, even in that narrow district to which its local jurisdiction is confined, and in respect that it is rather an excrescence upon the general system of judicature than a regular part of it, I have chosen to describe it last. Its local jurisdiction extends no farther than the town, fort and district of Colombo*, and consists of a civil, equitable and testamentary jurisdiction, and a jurisdiction over infants and lunatics. from which an approximative judgment may be formed of the proportion between the causes which are appealable to the high court, and it has also, in respect of certain classes, juristhe causes which are not. Taking the average of the three years and a half above mentioned, I find that the number of civil causes tried annually in the maritime provinces (I omit the few causes tried by the supreme court, which belong to an entirely different system of judicature), in which the value in dispute exceeds 227. 10s., is 683; while the number in which the value in dispute falls short of that sum, is, 14,107, giving a proportion of not quite une to twenty. So that, even if the amount which renders a cause appealable were reduced to three-fourths of what it actually is, more than 19 out of 20 suitors would be excluded from the benefit of access to this, the only appellate jurisdiction deserving of the name. The supervision of a competent public, and that of a competent appellate jurisdiction, are, I believe, the only means by which courts of original jurisdiction are rendered in any country fitting instruments of judicature. Your Lordship will not therefore suppose that I mean to cast any reflection upon the gentlemen who preside in the local courts of Ceylon, when I say, that it is contrary to all our experience of human nature that they should be able to find in the recesses of their own minds a sufficient motive for the exertion of that unremitThere are words also in the charter which ting attention which is necessary for the in- provide for their eventual extension, together vestigation and decision of the matters which with that of its criminal and matrimonial come before them, and of that imperturbable jurisdiction, still further; but those words patience which can alone control the move-have been held by the law officers of the ments of indignation which the importunity, Crown in England not to apply to the Kanfolly, impertinence and knavery of Indian dyan provinces until they shall be annexed witnesses are calculated to excite. as dependencies to the maritime provinces. In criminal cases there is no appeal from The extension of the jurisdiction of the suthe courts of original jurisdiction; but the Preme court to Europeans, and the denial of supreme court (which is itself a court of origi-fort and district of Colombo, is an unfair and it to natives beyond the limits of the town, nal jurisdiction, and, as such, will be presently invidious advantage given to the former over described,) exercise over these courts in criminal matters as much of superintendence as the latter; for the judges of this court, two can be exercised by virtue of mandates in the in number, are gentlemen regularly educated nature of writs of mandamus, certiorari, pro-it, and there is not in Ceylon the same ground to their profession and devoting their lives to natives as in Continental India. for this distinction between Europeans and cedendo and error. Europeans and persons registered in the seBut all these jurisdictions extend as regards cretary's office as licensed to reside over the whole of the maritime provinces. Very soon after my arrival in Ceylon, I had the honour to make a report to your Lordship's predecessor in conjunction with Colonel Colebrooke, on the dangerous uncertainty in which the right of the supreme court to issue writs of habeas corpus was involved, and in the encroachment which had been made on that right, supposing it legally vested in the court, by a Regulaion of goverament, passed This provision was intended no doubt to ex post facto by a former Lieutenant-overnor, confer an advantage upon Europeans in which Regulation, notwithstanding the express orders of Lord Bathurst for its repeal, was still in force when I arrived in the island. There the English law is administered to Europeans, and the native laws to natives; but in the maritime provinces of Ceylon the Dutch Roman law is administered, with certain exceptions, to Europeans and natives indifferently. * The expression "district of Colombo" has a much more limited signification when used with relation to the supreme court than it has when used with relation to the provincial court of Colombo. respect to equitable jurisdiction, as well as in appreciate the consciousness of rectitude. respect to the other jurisdictions enumerated; The importance which he justly attaches to but in reality it imposes a disadvantage upon the office renders it agreeable to him; and he them as opposed to natives in that respect, for not only pays great attention to the proceedas no other court in the island has any equi-ings, but for the most part takes an active part table jurisdiction, a European has no remedy in them. in equity against a native not residing at Colombo, but all natives have a remedy in equity against all Europeans. Those prisoners who are tried before the supreme court are entitled to the assistance of a proctor, paid by the government; a provision deserving of the highest commendation and well calculated to make the government beloved and respected by its subjects. No prisoner can be tried before the supreme court, but upon the prosecution of the advocate fiscal, who therefore resembles rather the Now, though in a very large sense it may Lord Advocate of Scotland than the attorneybe said that it is an advantage to a man that general of England, his place is supplied in he should be compellable in all cases to act case of necessity by the deputy advocate-fisjustly, it is certainly not that sort of advan-cal, who is also master in equity. Both these tage which Europeans have generally reserved officers are English barristers. as their own peculiar privilege in their eastern dominions; and, in every point of view, the want of a reciprocal power to sue a native in equity is a disadvantage to the European. What I have just said may seem inconsistent with the remarks I made upon the meaning of the expression, "Equitable Jurisdiction," in speaking of the provincial courts; but as the supreme court is empowered by the charter to exercise an equitable jurisdiction in point of form as nearly as may be according to the rules and proceedings of the High Court of Chancery in Great Britain, it has thus been enabled to escape from that absurd rule of evidence by which, according to the Dutch Roman law, the oath of the party is held de cisive of the matter sworn to. The witnesses on both sides, in criminal cases before the supreme court, are also paid by government* "by a circular letter (says Mr. Justice Marshall) from the Chief Secretary of government dated 20th November 1833, all magistrates are moreover to ask every prisoner at the time of committing him, if he has any witnesses; to indorse their names, if any, on the commitment; and to intimate to such prisoners that government will only allow batta (money for their subsistence during their attendance) to those witnesses whose names as to batta, which the great number of useless witnesses, almost always summoned by native prisoners, rendered very necessary†, by no means precludes their rights to summon as many as on a subsequent consideration, they may think advisable: accordingly at a convenient time before the session, all the witnesses on both sides are subpoenaed by the fiscal, and if any of them fail to attend without sufficient excuse, a warrant of attachment This is certainly a considerable advantage, but though, as far as I have been able to dis-shall be given at that time. This limitation cover, it is the only one which results from the equitable jurisdiction conferred on the Supreme Court by the Charter, it does not seem from the word of that instrument that it was contemplated by the framers of it. This is conferred by the 52d section of the Charter, together with the testamentary juris-issues against them. All witnesses, on the one diction, and with the same limitations; but the 54th section provides, that it shall not extend to natives, and as it is only as regards natives that it had any local limits by the 2d section, it is not, or at least was not at the time the court was established, in any respect a local jurisdiction. side as well as on the other, except such as live within the four gravets of the prisoner as above mentioned, whose names are not given at the time of his commitment, are allowed batta by Government from the day on which they leave their houses till the day of their discharge, and a reasonable time afterwards to allow of their return. The criminal jurisdiction of the supreme court is exercised on circuit, and at Colombo; "This is paid by the fiscals of the several and the trial by jury, as your Lordship is districts, abstracts being made of the witnesaware, was introduced at the suggestion of ses and the sums paid to them respectively, Sir Alexander Johnston by the Charter of 1810. which abstracts are signed by the witnesses, I attended nearly all the trials by jury which and serve as vouchers for the fiscals, for their took place while I was in the island, and the repayment by government. The amount vaimpression on my mind is, that an institution ries according to the rank of the witness, the in the nature of a jury is the best school in lowest sum being six pice (or 2 and pence), which the minds of the natives can be disci-the highest, one rix-dollar (or 1s. 6d) per plined for the discharge of public duties. diem. Witnesses of the rank of mohandiram, The juror performs his functions under the eye of an European judge, and of the European and Indian public, and in circumstance which almost exclude the possibility of bribery or intimidation. The Chief Justice in his evidence speaks of this payment as being made in the southern districts only. I have conversed with that gentleman on the subject since my return to England, and he states, that in practice the withesses of prisoners in the northern district do not receive "batta," though he is not aware that this distinction has any foundation in law: + Note by Mr. Justic Marshall.-It is no uncommon thing for a prisoner to summon upwards of 100 witnesses, all perhaps In such a situation he has very little motive to do wrong, and he yet feels and learns to ignorant of the matter. or above it, are allowed travelling expenses the world. Here are two judges sent from for palanquin-bearers, boat-hire or bullock- the English or Irish bar, invested with high carts, according to their degree or the mode rank, and remunerated by ample salaries, of travelling which may be necessary.” for the purpose of trying* 176 causes, civil This right of the prisoner to have the ex- and criminal, in the course of a year, as penses of his witnesses paid appears to me to judges of the supreme court, and 38 appeals be, in some respects, too much restricted, and in the same period, as judges of the high court of appeal. in other respects too little restricted. Considering the interests of the witness, it seems to me that his claim to compensation has nothing to do with propriety or impropriety of summoning him, and consequently, that the expenses of every witness who is summoned, and who attends bona fide, should be paid. It follows that the restriction on the prisoner's right should not be in respect of the payment, but in respect of the summoning of his witnesses. An extension of the jurisdiction of the mended by every judge that has ever sat in supreme court has, I believe, been recomit; and if there were really any valid objection to such a measure, it would follow that the court ought to be abolished, or very greatly reduced. In the plan which I shall have the honour to recommend to your Lordship, I believe that ample occupation is provided for it. KANDYAN PROVINCES. The prisoner should be compelled to lay vinces do not differ in many essential particuThe local judicatures in the Kandyan Probefore the magistrate reasonable grounds for lars from those of the maritine Provinces; summoning the witnesses he names. It surely they differ however in some, and they contain does not follow, because a man has been ac- the rudiments of one institution, which, if cused of a crime, that he should be permitted improved and extended over the whole island, to call away from their homes and their oc- will, I think, produce the happiest effects. cupations a crowd of persons who know nothing about the matter in question, either at The local judicatures consist of the judicial their own expense, or at that of the public. commissioner's court at Kandy, which is also But on the other hand, a prisoner ought not a court of appeal; the sitting magistrate's to be deprived of the full benefit of witness's court at Kandy; and the courts of the supetestimony (and the full benefit of testimony rior and inferior “ agents of government" in cannot, in general, be had from a witness the provinces. who knows that his expenses are not to be The judicial commissioners and the agents paid), because in the agitation which may of government must be assisted by at least come upon any man when he is taken before two Kandyan assessors in all civil cases wherea magistrate on a criminal accusation, he in land is the object in dispute, or wherein omits to specify that witness. the value of the object in dispute exceeds I shall have to consider the question, as 100 rix-dollars; and in all criminal cases, to the payment of the expenses of witnesses except those of "inferior description, such by the public, more fully and more generally as common assaults, petty thefts, and breaches than is necessary in this place, when I come of the peace." to lay my recommendations before your Lordship. No appeal lies from the supreme court to the high court of appeal; but the judges of the supreme court are, virtute officii, judges of the high court of appeal. The only appeal from the supreme court is to the King in Council; and it is confined to cases in which the value of the matter in dispate exceeds 5001. The presence of native assessors, who take an authoritative part in the proceedings, and thus constitute a legitimate organ for the tranquil and effectual expression of public opinion upon judicial matters, is the institution from the extention and improvement of which venture to anticipate so much advantage. I The present assessors are selected from too small a class, and not from that class which is best adapted to the purpose. The following statement will enable your In Kandy they are, by the 37th section of the Lordship to compare the quantity of business Proclamation of 21st November, 1818, "two done by the two judges of the supreme court or more chiefs, and in the provinces one or (which is all that the existing regulations more dessaves of the province, and one or permit it to transact), with the quantity done more mohottales or principal korals, so as by the two other judges resident at Colombo; there shall be at least two Kandyan assessors, namely, the provincial judge and the sitting or of two mohottales or korals where no dismagistrte. save can attend." Total number of Civil and Criminal cases ... 18,145 ......... Supreme Court at Colombo and on the circuits....... ... ........ 529 I doubt whether such a waste of judicial power is exhibited in any other country in |