Lord Cornwallis: the Judicial Plan of 1787

It resumed the criminal side. Cornwallis resolved in Council to resume the superintendence of the administration of criminal justice throughout the provinces, and after a few years removed the Sadar Nizamat Adalat to Calcutta, from Murshidabad where Warren Hastings had transferred it.

And a revised code was published in the same year, adapted to the change of system.

Why he did it

The reason given at the time is the one to state, because it is an argument about the people rather than about administrative tidiness: the object of reverting to the system that had been discontinued in 1780 was to accustom the people to look to one master.

Behind that is a practical judgment. After seven years' experience it was considered impossible to draw a line between the revenue and the judicial departments in such a way as to prevent their clashing. The regulations of 1780 had tried, and constant confusion had been the result. Every case that touched land touched revenue, and a rule that sent revenue one way and property the other produced two courts fighting over the same dispute.

Notice also what Cornwallis was doing in terms of this book's story: he was reviving the institutions of Warren Hastings's plan of 1772, before the changes made by the Council of 1775 and the separation of 1780. Cowell says so in terms. Cornwallis's policy in 1787 was to carry out Hastings's original intentions.

The one safeguard he kept

Although the functions of civil justice and of revenue collection were re-united in the person of the Collector, the courts over which he presided were kept distinct.

That is a real distinction and a student should notice it. The same man sat as judge of the Diwani Adalat and as judge of the Mal Adalat, but they were two courts with two jurisdictions, two records and two appellate routes: the Diwani Adalat to the Sadar Diwani Adalat, the Mal Adalat to the Board of Revenue. It is the difference between fusing two offices and fusing two courts, and Cornwallis fused only the first.

Whether that safeguard was worth anything is exactly what he decided six years later that it was not.

A worked example

Ramnath, a zamindar of a Bengal district, has three grievances in 1789. Follow each.

One. The Collector has assessed his revenue too high. That is a revenue case: Mal Adalat, before the Collector. Appeal to the Board of Revenue, then to the Governor-General in Council in the revenue department. Notice that the officer who made the assessment is the judge of the complaint about it.

Two. His brother claims a share of the zamindari by inheritance. That is a civil case: Diwani Adalat, before the same man in his other capacity, applying Hindu law. Appeal to the Sadar Diwani Adalat.

Three. His tenant has been beaten by the Collector's peons. Criminal: the Faujdari Adalat, under the criminal system Cornwallis had just resumed supervising, with the Sadar Nizamat Adalat above it.

Ramnath's first grievance is decided by the person he is complaining about. That is the objection Cornwallis himself would state, in his own words, in 1793.

Distinctions worth having straight

What beginners get wrong

"Cornwallis separated the judiciary from the executive." He did, in 1793. In 1787 he did the exact opposite, and a student who gives the 1793 answer to a question about 1787 has the sequence backwards. The right sentence is: Cornwallis united the two functions in 1787 and separated them in 1793, having found by experience that union did not work.

"The 1787 plan was Cornwallis's own idea." It was resolved in obedience to the Court of Directors, and its policy was to revive Warren Hastings's scheme of 1772.

"All the district courts were given to the Collectors." All except those in the cities of Patna, Murshidabad and Dacca.

"The Mal Adalat was part of the Diwani Adalat." Two distinct courts, with distinct jurisdictions and distinct appeals, presided over by the same officer.

Limits and criticism

The plan is defensible on its own premises and it failed for the reason its critics predicted.

It is defensible because the alternative had produced "very troublesome and alarming competition" between the civil courts and the Provincial Councils within months of 1780, and because the Directors' instruction to make the people look to one master answered a genuine complaint: a cultivator who had to know which of two English courts to approach, on a distinction between rent and property that he had never heard of, was worse off than one who went to the Collector.

It failed because the Collector's two roles were not merely different but opposed. The revenue officer's duty is to collect the maximum lawfully due; the judge's duty in a suit about that collection is to decide impartially between the government and the subject. One man cannot discharge both, and Cornwallis said so himself in 1793 in the words the next chapters quote: it is necessary to arm revenue officers with power to enforce their demands, but to prevent the abuse of that power there should be courts of justice ready to punish oppression and exaction.

Six years was how long it took to find that out, and the finding is the whole significance of the plan of 1787.

Quick revision

• Cornwallis arrived as Governor-General in 1786.
• Pitt's India Act 1784 (24 Geo. III c. 25) had directed inquiry into grievances; the Directors' instruction was to establish permanent rules for revenue and for "the administration of justice founded on the ancient laws and local usages of the country".
• 1787: the office of judge of the mofussil courts to be held by the officer in charge of the revenue, except at Patna, Murshidabad and Dacca. The Diwani Adalats put under the Collectors.
• Revenue cases to the Collector as a Mal Adalat; appeal to the Board of Revenue, then the Governor-General in Council.
• Criminal justice: superintendence resumed, and the Sadar Nizamat Adalat afterwards moved to Calcutta.
• Object: that the people should look to one master. Policy: to revive Hastings's plan of 1772.
• The one safeguard: the two courts were kept distinct, though the judge was the same man.

Test yourself

1. What did the plan of 1787 do, in one sentence? It re-united civil justice with revenue collection by making the Collector the judge of the district civil court as well as of a new revenue court, the Mal Adalat, in every district except Patna, Murshidabad and Dacca.

2. What was the stated object, and what was the practical reason? The stated object was that the people should look to one master. The practical reason was that after seven years' experience it was thought impossible to draw a line between revenue and judicial business without constant clashing, and the separation of 1780 had produced exactly that.

3. What was Cornwallis instructed by Parliament and the Directors to achieve? Permanent rules for the settlement and collection of the revenue, and for the administration of justice founded on the ancient laws and local usages of the country.

4. Name the safeguard Cornwallis retained in 1787 and say why it was not enough. He kept the Diwani Adalat and the Mal Adalat distinct as courts, with separate jurisdictions and appeals, though the same officer presided over both. It was not enough because the two roles are opposed: the officer who must enforce a revenue demand cannot impartially decide a complaint about that demand.

5. Why is it a serious mistake to say Cornwallis separated the executive from the judiciary in 1787? Because he united them in 1787 and separated them in 1793. Getting the order wrong turns the entire point of topic 1.4, which is that Cornwallis tried both arrangements and rejected the first on experience, into its opposite.