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CUSTOM, IDENTITY, AND THE JURY IN INDIA, 1800–1832*

Published online by Cambridge University Press:  29 January 2014

JAMES A. JAFFE
JAMES A. JAFFE*
Affiliation:
University of Wisconsin–Whitewater
*
Department of History, University of Wisconsin–Whitewater, Whitewater, Wisconsin 53190USA[email protected]
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Abstract

This article analyses the reception and understanding of the Indian village council (panchayat) among East India Company officials, British politicians, and Indian intellectuals during the first third of the nineteenth century. One of the several ways in which the panchayat was imagined was as an institution analogous to the English jury. As such, the panchayat took on significant meaning, especially for those influenced by the Scottish Orientalist tradition and who were serving in India. The issue became especially salient during the 1820s and 1830s as the jury system was debated and reformed in England. In this context, there was a transnational interplay of both ideas and policies that shaped both Company rule in India as well as the first generation of Indian nationalists.

Type
Articles
Information
The Historical Journal , Volume 57 , Issue 1 , March 2014 , pp. 131 - 155
Copyright
Copyright © Cambridge University Press 2014 

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Footnotes

*

Funding for the research and writing of this article was provided by the National Science Foundation Grant SES-0849571 and the US Fulbright Commission. Many thanks to Mitra Sharafi, Marc Galanter, Peter Robb, and Mitch Fraas for their help. Any errors or omissions remain the responsibility of the author.

References

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5 Parliamentary Papers (PP), Papers presented to the House of Commons, relating to East India affairs. Surat. 1795–1800 (1806), pp. 338–9. On jati panchayats in eighteenth-century Jodhpur, see Sahai, Nandita Prasad, ‘Collaboration and conflict: artisanal jati panchayats and the eighteenth-century Jodhpur state’, Medieval History Journal, 5 (2002), pp. 77–101CrossRefGoogle Scholar.

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8 See, for example, IOR/E/4/912, Madras dispatches, 29 Apr. 1814, fos. 589–93, and PP, East India affairs: papers relating to the police, and civil and criminal justice under the respective governments of Bengal, Fort St. George, and Bombay; from 1810 to the present time, judicial letter to Fort St George, 29 Apr. 1814 (London, 1819), p. 299.

9 PP, East India affairs. No. 3. Copy of the 15th and 35th interrogatories, p. 20.

10 E. I. Carlyle, ‘Wilks, Mark (c. 1760–1831)’, rev. Roger T. Stearn, Oxford dictionary of national biography (ODNB).

11 Wilks, Mark, Report on the interior administration, resources, and expenditure of the government of Mysoor, under the system prescribed by the orders of the governor general in council, dated 4th September 1799 (Fort William, 1805), pp. 22–3Google Scholar.

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14 Ibid., p. 5. Emphasis in original.

15 Wilks, Report, pp. 22–7.

16 Ibid., pp. 23, 25.

17 Ibid., p. 25.

18 Ibid., p. 23.

19 Ibid., p. 26.

20 Ibid., p. 27.

21 Ibid., p. 27.

22 Ibid., p. 28.

23 Oldham, James, ‘Truth-telling in the eighteenth-century English courtroom’, Law and History Review, 12 (1994), pp. 102–7Google Scholar.

24 Wilks, Report, p. 28; de Montesquieu, Baron, The spirit of the laws, ii (1st American edn, Worcester, MA, 1802)Google Scholar, ch. xiv, p. 134: ‘As both religion and the civil laws ought to have a peculiar tendency to render men good citizens, it is evident that when one of these deviate from this end, the tendency of the other ought to be strengthened.’

25 Wilks obviously was well read in Enlightenment philosophy. He also suggested that the moral failure resulting from these errors might also be corrected by the hand of a ‘benevolent legislator’, a theme taken up by many in the Scottish Enlightenment tradition. See Wilks, Report, pp. 27–8.

26 Wilks, Mark, Historical sketches of the south of India, in an attempt to trace the history of Mysoor; from the origin of the Hindoo government of that state, to the extinction of the Mohammedan dynasty in 1799, i (London, 1810), p. 501Google Scholar.

27 Ibid., p. 501. Emphasis in original.

28 Ibid., p. 501.

29 Ibid., p. 501. This perception of the commonality of human nature was typical of the Scottish school of thought, as noted by McLaren, Martha, British India and British Scotland, 1780–1830: career building, empire building, and a Scottish school of thought on Indian governance (Akron, OH, 2001), pp. 131–3Google Scholar.

30 Wilks, Historical sketches, p. 502.

31 Carlyle, ‘Wilks, Mark’, ODNB; see also Diocesan Registry, 1776: the admission of Mark Wilks as an academic scholar at Castletown; originally published in Journal of Manx Museum, 3 (1935–7), document no. 146, p. 78, available online at www.isle-of-man.com/manxnotebook/jmmuseum/d146.htm.

32 Rendall, Jane, ‘Scottish Orientalism: from Robertson to James Mill’, Historical Journal, 25 (1982), p. 49CrossRefGoogle Scholar, notes in passing that Sir James Mackintosh, a prominent Scottish Orientalist, advised Wilks in the writing of his Historical sketches. However, Mackintosh had not read it before publication. According to his Memoirs, Mackintosh first read the initial volume in Dec. 1810 and had a very mixed reaction. He praised it highly for opening a new ‘era in this branch of literature’, but was especially critical of Wilks's view of law and the Indian character. While Mackintosh agreed that there was much to be learned from traditional Indian society and that it was inappropriate to apply the ‘narrow pedantry’ of English law to India, he also noted that ‘I completely differ from him in that more favorable opinion of the Indian character, to which he now inclines; and I never can disapprove any system of laws for having a tendency, slowly and indirectly, to abolish so detestable a system as that of castes … Colonel Wilks, pleased with the manners and understanding of a few Mahometans and Bramins, has borne far too favorable a testimony to the state of society, which elevates these robbers and impostors.’ Sir Mackintosh, James, Memoirs of the life of the Right Honourable Sir James Mackintosh, ed. Mackintosh, R. J., ii (2nd edn, London, 1836), pp. 68, 70–1Google Scholar.

33 Kaye, John William, The life and correspondence of Major-General Sir John Malcolm, G. C. B., late envoy to Persia, and governor of Bombay, from unpublished letters and journals, i (London, 1856), p. 296Google Scholar. The friendship is suggested in a letter to Malcolm from Arthur Wellesley reprinted in Kaye's Life, p. 376, and their close working relationship noted in McLaren, British India and British Scotland, pp. 19, 49.

34 On Malcolm's thought and career, see the close analysis in Harrington, Jack, Sir John Malcolm and the creation of British India (New York, NY, 2010)CrossRefGoogle Scholar, and for a triple biography of Malcolm, Munro and Elphinstone, see McLaren, British India and British Scotland, passim.

35 See Kaye's Life and, for a more sober discussion, Robert Eric Frykenberg, ‘Malcolm, Sir John (1769–1833)’, ODNB, and Bennell, A. S., ‘Arthur Wellesley as political agent: 1803’, Journal of the Royal Asiatic Society of Great Britain and Ireland, 2 (1987), pp. 273–88CrossRefGoogle Scholar.

36 Malcolm, John, Sketch of the Sikhs: a singular nation, who inhabit the provinces of the Penjab (London, 1812)Google Scholar. Malcolm's first published work, Sketch of the political history of India (London, 1811), does not mention panchayats nor does he discuss the administration of justice more generally at any great length or depth.

37 Malcolm, Sketch of the Sikhs, pp. 127–8.

38 Malcolm, John, A memoir of central India, including Malwa, and the adjoining provinces (2 vols., London, 1823)Google Scholar.

39 Malcolm, John, Report on the province of Malwa, and adjoining districts (Calcutta, 1822)Google Scholar; on the significance of the panchayat in the context of Malcolm's general argument concerning the British administration of India, see Harrington, Sir John Malcolm, pp. 124–5.

40 Malcolm, Report on the province of Malwa, pp. 391–2.

41 Munro's thought on panchayats is briefly surveyed in McLaren, British India and British Scotland, pp. 213–19.

42 IOR/H/686, Thomas Munro, ‘Report of the collector of the ceded districts of 15th Aug. 1807, on the advantages and disadvantages of the zemindary permanent settlements and of the ryotwar settlements’, pp. 292–7.

43 Ibid., pp. 292–7. Relevant passages from this report were later extracted and published as ‘Trial by panchayat’, in Munro, Thomas, Major-General Thomas Munro, Bart., K. C. B., governor of Madras: selections from his minutes and other official writings, ed. Arbuthnot, Alexander J., ii (London, 1881), pp. 3–6Google Scholar.

44 Beaglehole, T. H., Thomas Munro and the development of administrative policy in Madras, 1792–1818 (Cambridge, 1966)Google Scholar, ch. 4; Stein, Burton, Thomas Munro: the origins of the colonial state and his vision of empire (Delhi, 1989), pp. 149–67Google Scholar.

45 PP, Fifth report from the select committee of the House of Commons on the affairs of the East India Company (3 vols., 1812–13).

46 PP, Minutes of evidence taken before the committee of the whole House, and the select committee on the affairs of the East India Company (1813), pp. 121–57, 167–75.

47 Munro, Thomas, ‘Memorandum on the revision of the judicial system’, reprinted in Selection of papers from the records at the East-India House relating to the revenue, police, and civil and criminal justice, under the Company's governments in India, ii (London, 1820), pp. 105–6Google Scholar.

48 Thomas Munro, ‘Answers to court queries’, 22 Nov. 1813, reprinted in ibid., p. 114. This appears to be the first time that the description of the Indian village as an autonomous republic was used. The analogy would later become closely identified with Gandhi and the independence movement.

49 Ibid., p. 120.

50 IOR/E/4/912, Madras dispatches, 29 Apr. 1814.

51 For the Bengal dispatch of 9 Nov. 1814, see PP, East India affairs: papers relating to the police, and civil and criminal justice, pp. 33–65; see also IOR/E/4/682, ‘Draft of a dispatch proposed to be sent to Bengal, on judicature and police’, 20 Sept. 1814, fos. 395–7.

52 Ballhatchet, Kenneth, Social policy and social change in western India, 1817–1830 (London, 1957), pp. 106–15Google Scholar.

53 See, generally, IOR/V/27/140/12, Papers regarding judicial system, Bengal presidency, 1814–1818, and, for the final statement of Bengal's opposition to the plan, see IOR/L/PJ/3/252, letter to the Honourable Court of Directors from Judicial Department (Lower and Western Provinces), 22 Feb. 1827, fos. 454–77.

54 Selection of papers from the records at the East-India House, ii, p. 257.

55 The draft regulation and accompanying letter are reproduced in Selections from the records of Fort St. George: papers regarding the Village punchayet and other judicial systems of administration, 1812–1816 (Madras, 1916), pp. 43–65.

56 Catherine Sandin Meschievitz, ‘Civil litigation and judicial policy in the Madras presidency, 1800–1843’ (Ph.D. thesis, Wisconsin–Madison, 1986), pp. 155–67.

57 In the draft regulations, trial by panchayat could be ordered upon the request of only one of the parties, if the suit was valued at fewer than Rs. 100; see Selections from the records of Fort St. George, p. 61.

58 Selection of papers from the records at the East-India House, ii, ‘Report of Mr. George Stratton’, 13 Apr. 1818, pp. 540–51.

59 Data cited by Stephen Lushington, governor of Madras, in PP, Return to an order of the Honourable House of Commons, dated 1 August 1833; – for, copies of the several minutes of council at the presidency of Madras, by Sir Thomas Munro, Mr. Graeme, and Mr. Lushington and others, on the subject of extending trial by jury to the natives in criminal cases (1833), p. 35.

60 For a survey of legal and historical theories that attempt to account for the pronounced preference of Indian litigants for British courts, see Price, Pamela G., ‘The “popularity” of the imperial courts of law: three views of the Anglo-Indian encounter’, in Mommsen, W. J. and De Moor, J. A., eds., European expansion and law: the encounter of European and indigenous law in nineteenth- and twentieth-century Africa and Asia (Oxford, 1992), pp. 179–200Google Scholar.

61 PP, Copy of a minute by the late Sir Thomas Munro, on the state of the country, and condition of the people under the presidency of Fort St. George, dated 31st December 1824 (1830), p. 21.

62 Ibid., p. 21.

63 Hansard, Commons Debates, vol. 10, cc. 247–52, 19 Feb. 1824.

64 Peel pointed out that these last two provisions were among the most important changes provided by the bill. See Hansard, Commons Debates, vol. 13, cc. 799–80, 20 May 1825.

65 Hansard, Commons Debates, vol. 12, cc. 966–72, 9 Mar. 1825; 6 Geo. IV, c. 50, ‘An act for consolidating and amending the laws relative to jurors and juries’.

66 Journals of the House of Commons, 15 Mar. 1825, p. 207. On Williams Wynn, see Margaret Escott, ‘Charles Watkin Williams Wynn (1775–1850), of Llangedwyn, Denb.’, in D. R. Fisher, ed., The history of parliament: the House of Commons, 1820–1832, online at www.historyofparliamentonline.org/volume/1820–1832/member/williams-wynn-charles-1775–1850.

67 The proceedings are reprinted in Oriental Herald, and Journal of General Literature, 6 (July–Sept. 1825), pp. 172–80.

68 Ibid., p. 174.

69 Ibid., p. 176.

70 6 Geo. IV, c. 85. It actually was a hybrid act, as the title indicates: ‘An act for further regulating the payment of the salaries and pensions to his majesty's courts in India, and the bishop of Calcutta; for authorizing the transportation of offenders from the island of Saint Helena; and for more effectually providing for the administration of justice in Singapore and Malacca, and certain colonies on the coast of Coromandel’.

71 PP, Report from the select committee of the House of Lords appointed to inquire into the present state of the affairs of the East India Company, and into the trade between Great Britain, the East Indies and China; with the minutes of evidence taken before the committee (1830), p. 122.

72 H. G. Keene, ‘Johnston, Sir Alexander (1775–1849)’, rev. Roger T. Stearn, ODNB.

73 PP, Report from the Select Committee of the House of Lords, pp. 123–4; ‘Administration of justice in India: Sir Alexander Johnston's plan of reform’, Law Magazine and Review: A Quarterly Journal of Jurisprudence, 3 (1830), p. 582. Just months before Castlereagh's suicide in 1822, Johnston had also been in contact with him concerning the expansion of trial by jury to India. Johnston's memo on the subject is reprinted in PP, Report from the Select Committee of the House of Lords, pp. 136–7.

74 PP, Report from the Select Committee of the House of Lords, pp. 123–5. Interestingly, in Johnston's testimony before the House of Lords, he distinguished between the trial by jury and the indigenous panchayat that, he believed, was an arbitration tribunal. In Ceylon, he testified, ‘they had a system of arbitrations, they did not use the word Punchayet; they called it arbitration, and made use of that word for it in Tamul, which, if translated into English, means arbitration’. See ibid., p. 133.

75 7 Geo. IV, c. 37, ‘An act to regulate the appointment of juries in the East-Indies’. Only two very brief discussions are recorded in Hansard; see Commons Debates, vol. 15, cc. 1–2, 20 Mar. 1826, and vol. 15, cc. 107–8, 7 Apr. 1826. In both instances, only Joseph Hume spoke on the matter.

76 Anon., ‘System of punchayet, or Indian trial by jury’, Oriental Herald, 8 (Mar. 1826), pp. 457–70Google Scholar.

77 Anon., ‘The punchayet, or Hindu form of arbitration’, Asiatic Journal and Monthly Register, 21 (Apr. 1826), pp. 475–81Google Scholar.

78 Ibid., pp. 477, 479. Emphasis in original.

79 Ibid., p. 480. It very well may have been the same anonymous author who submitted a further letter to the Oriental Herald entitled ‘Counter-evidence respecting the punchayet, or Indian trial by jury’. That short letter repeated several of the same assertions presented in the letter previously published in the Asiatic Journal. See , A. Y., ‘Counter-evidence respecting the punchayet, or Indian trial by jury’, Oriental Herald, 9 (Apr. 1826), pp. 129–31Google Scholar. In an appended response, the editor, James Silk Buckingham, catalogued the ways in which the British government had altered the panchayat system, concluding that it is ‘no wonder [the] punchayet is unpopular’.

80 PP, Rules relating to juries in the Supreme Court of Judicature at Fort William in Bengal (1828); PP, Return to an order of the Honourable House of Commons, dated 22 May 1828, and 6 May 1829; – for a copy of the regulations that have been adopted by the Supreme Courts at the several presidencies in India, as to natives sitting on juries, under 7 Geo. IV c. 37; – so far as relates to the Supreme Court of Judicature at Bombay (1829); PP, Further return to an order of the House of Commons, dated 22 May 1828, and 6 May 1829; – for copy of the regulations that have been adopted by the Supreme Courts at the several presidencies in India, as to natives sitting on juries, under 7 Geo. IV c. 37; – so far as relates to Madras (1829).

81 IOR/L/L/6/2, law cases and opinions of council, case no. 695, ‘Eligibility of Anglo-Asiatics to serve on juries in Bengal’, 26 Jan. 1825. Bosanquet's opinion is dated 26 Jan. 1826. He cited to the legal maxim Lex Angliæ nunquam matris sed semper patria conditionem imiatri partum judicat, or, ‘the law of England adjudges that the offspring shall follow the condition of the father, not of the mother’.

82 Peabody, Norbert, ‘Tod's Rajast'han and the boundaries of imperial rule in nineteenth-century India’, Modern Asian Studies, 30 (1996), pp. 185–220CrossRefGoogle Scholar. Many thanks to Peter Robb for directing me to this article.

83 See West's obituaries in Oriental Herald, 20 (Feb. 1829), pp. 372–5; Gentleman's Magazine (May 1829), pp. 565–6; and, on his contribution to political economy, see Maxine L. Berg, ‘West, Sir Edward (bap. 1782, d. 1828)’, ODNB.

84 PP, Report from the select committee of the House of Lords, p. 280.

85 Bombay Regulation iv, ch. vi, § xxiv, 1827, reprinted in PP, Papers relating to East India affairs: viz. regulations passed by the governments of Bengal, Fort St. George, and Bombay, in the year 1827 (1829), p. 89.

86 ‘Three very respectable Hindoos’ first participated as jurors on petty juries at the Oct. 1827 quarter sessions in Madras. The account published in the Madras Courier was reprinted in PP, Return to an order of the Honourable House of Commons, dated 1 August 1833; – for, copies of the several minutes of council at the presidency of Madras, by Sir Thomas Munro, Mr. Graeme, and Mr. Lushington and others, on the subject of extending trial by jury to the natives in criminal cases (1833), p. 51.

87 Madras Regulation x, 1827 reprinted in PP, Papers relating to East India affairs … , in the year 1827, pp. 52–6.

88 PP, Report from the select committee of the House of Lords, p. 202; see also, PP, Return to an Order of the Honourable House of Commons, dated 1 August 1833, pp. 14, 34–6, 52.

89 Bayly, C. A., Recovering liberties: Indian thought in the age of liberalism and empire (Cambridge, 2012), pp. 67–8Google Scholar.

90 Raz's, Ram letter was later reprinted in the Journal of the Royal Asiatic Society, 3 (1836), pp. 244–57Google Scholar.

91 Raz, Ram, ‘On the introduction of trial by jury in the Hon. East India Company's courts of law’, Journal of the Royal Asiatic Society, 3 (1836), pp. 251–2Google Scholar.

92 Ram Raz, ‘Introduction of trial by jury’, p. 252.

93 Ibid., pp. 252–4. The article referred to appeared as ‘Judicial system in the Deccan’, Asiatic Journal, 23 (1827), pp. 329–39.

94 Ram Raz, ‘Introduction of trial by jury’, pp. 252, 253.

95 PP, Return to an order of the Honourable House of Commons, dated 1 August 1833, pp. 36–51. Two of three sudder judges and ten of twelve circuit judges opposed Indian jurors.

96 Ibid., p. 52.

97 On Grant, see Fisher, David R., ‘Grant, Charles (1778–1866), of Waternish, Skye and Glenelg, Inverness’, in Fisher, , ed. History of ParliamentGoogle Scholar. Available online at www.historyofparliamentonline.org/volume/1820–1832/member/grant-charles-1778–1866.

98 Hansard, Commons Debates, 3rd ser., vol. 6, cc. 958–60.

99 Ibid., cc. 961–5.

100 Ibid., c. 956.

101 Ibid., cc. 965–6.

102 Calcutta Magazine, 30 (June 1832), pp. 175–88. The petition is printed in the following issue: Calcutta Magazine, 31 (July 1832), pp. 223–4.

103 Calcutta Magazine, 30 (June 1832), p. 183.

104 Bayly, C. A., ‘Rammohan Roy and the advent of constitutional liberalism in India, 1800–1830’, Modern Intellectual History, 4 (2007), p. 28CrossRefGoogle Scholar.

105 Roy, Rajah Rammohun, Exposition of the practical operation of the judicial and revenue systems of India (London, 1832), pp. 14–16Google Scholar.

106 Ibid., p. 20.

107 Ibid., p. 22.

108 Ibid., p. 24.

109 Bayly, Recovering liberties, p. 69.

110 Bayly, ‘Rammohan Roy’, pp. 30–2.