Lord Cornwallis: the Judicial Plan of 1790

In 1781 the faujdars and thanadars were abolished, and the judges of the civil courts were made magistrates, with power to apprehend offenders and bring them to trial, forwarding them to the daroga of the nearest criminal court, the power of punishment still resting with the Nawab's courts. Later the civil judges were given power to decide slight offences and, under restrictions, to inflict corporal punishment and impose fines.

So by 1790 criminal justice had an English magistracy at the bottom, Muslim courts in the middle, and a Nawab's officer at the top, and nobody thought it worked.

What Cornwallis decided, and the sentence he decided it in

Cornwallis's reason is recorded in a single sentence and it is the one to quote: the future control of so important a branch of government "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."

Read both halves. The first half is a judgment about Indians holding high office, and a student should describe it as what it is rather than soften it. The second half is a general proposition about power that no lawyer would quarrel with: the control of criminal justice should not rest with any single person at all.

What the regulations of 3 December 1790 did

They created Courts of Circuit. Courts of Circuit were established under the superintendence of English judges, assisted by Indians versed in Muslim law, to try in the first instance persons charged with crimes or misdemeanours. A circuit court is one whose judges travel from station to station to try the cases that have accumulated there, and its business includes gaol delivery, the clearing of the gaol by trying everybody held in it.

They brought the Nizamat Adalat back to Calcutta, and enabled the Governor-General and the members of the Supreme Council to sit in it and superintend the administration of criminal justice throughout the provinces.

They transferred the Nazim's powers. The powers of the Nawab Nazim passed to the Governor-General in Council. That is the constitutional heart of the plan: the last substantial function that the dual government of 1765 had left with the Nawab was taken away, and the fiction that the Company governed only the Diwani ended.

The regulations of 1790 were, with amendments and alterations, re-enacted in 1793, and it is in that form that they became part of the Cornwallis Code. That is why some books date the criminal reforms to 1790 and others to 1793: both are right, and an answer that says the 1790 regulations were re-enacted in 1793 is right in a way that satisfies either question.

What the Courts of Circuit looked like in practice

There were four to begin with, increased as provinces were added. Each was composed of the same judges who sat in the provincial Civil Court of Appeal, together with the kazi and mufti attached to that court.

The circuit duties, including gaol deliveries at the principal stations, were ordinarily performed by the second, third and fourth judges in regular succession, the first judge remaining at the principal station unless otherwise directed.

They lasted until 1829, when Regulation I of that year abolished them because they had failed to give prompt justice, and Bengal was divided into twenty divisions under Commissioners of Revenue and Circuit who took over their powers along with those of the Board of Revenue.

A worked example

A dacoity is committed in a Bengal district in 1792.

1. The magistrate, who is the judge of the civil court of the district under the arrangement of 1781, apprehends the accused and commits him.
2. The case is tried in the first instance by the Court of Circuit, presided over by English judges of the provincial Court of Appeal, assisted by the kazi and mufti, applying Muslim criminal law.
3. A capital sentence goes for confirmation to the Sadar Nizamat Adalat at Calcutta, now composed of the Governor-General and the members of the Supreme Council.
4. Before 1790, step two would have been a Faujdari Adalat under Muslim officers and step three would have been at Murshidabad under the Nawab's superintendence.

Two changes, and both are about who controls, not about what law is applied. The law tried remained Muslim criminal law, with reforms, until the Indian Penal Code was brought into force in 1862.

Distinctions worth having straight

What beginners get wrong

"Cornwallis abolished Muslim criminal law in 1790." He did not. He took the control of criminal justice from the Nawab and gave the trials to English judges; the substantive law tried remained Muslim criminal law, reformed in stages over the following decades and replaced only by the Indian Penal Code.

"The Courts of Circuit were appellate courts." They tried cases in the first instance, on circuit, including gaol delivery. The appellate and confirming body was the Sadar Nizamat Adalat.

"The Sadar Nizamat Adalat was always at Calcutta." It was at Murshidabad from 1772, came to Calcutta on the abolition of the Committee of Revenue, went back to Murshidabad in 1775, and returned to Calcutta in 1790. Three moves, and the last one is Cornwallis's.

"1790 was about the police." The police was the background, and the plan is about courts. The police reform of this era is the network of thanadars and darogas that came with the Regulations of 1793.

Limits and criticism

The plan of 1790 is the most defensible of Cornwallis's three, and the criticism of it is a criticism of its premise rather than of its machinery.

Its machinery worked well enough to last thirty-nine years, and when the Courts of Circuit were abolished in 1829 the reason given was delay, not injustice.

Its premise was that criminal justice could not safely be left to an Indian officer. That premise is stated in the regulation itself, in the words quoted above, and it had a consequence that shaped the whole later system: from 1790 the trial of serious crime in the mofussil was in English hands, and the Indian law officers were reduced to expounding the law to a judge who decided. The office of kazi was itself abolished in 1809.

An answer that quotes the sentence and then notes both halves of its effect, the removal of a single person's discretion and the exclusion of Indians from the criminal bench, is doing exactly what a history paper asks.

Quick revision

• Cornwallis, 1790: the control of criminal justice "ought not to be left to the sole discretion of any native, or indeed of any single person whomsoever."
• Regulations of 3 December 1790: Courts of Circuit under English judges with Indians versed in Muslim law, trying in the first instance; the Governor-General and members of the Supreme Council to sit in the Nizamat Adalat, removed again to Calcutta.
• The powers of the Nawab Nazim passed to the Governor-General in Council.
• Four Courts of Circuit at first, made up of the judges of the provincial Civil Court of Appeal with the kazi and mufti; abolished in 1829 and replaced by twenty Commissioners of Revenue and Circuit.
• The regulations of 1790 were re-enacted with amendments in 1793.
• Background: Faujdari Adalats from 1772; the Nizamat Adalat moved to Murshidabad in 1775 under Muhammad Reza Khan; civil judges made magistrates in 1781.

Test yourself

1. What did the regulations of 3 December 1790 establish? Courts of Circuit under the superintendence of English judges, assisted by Indians versed in Muslim law, to try persons charged with crimes and misdemeanours in the first instance; and they enabled the Governor-General and the members of the Supreme Council to sit in the Nizamat Adalat, again removed to Calcutta, and to superintend criminal justice throughout the provinces.

2. What constitutional change did the plan of 1790 make? The powers of the Nawab Nazim passed to the Governor-General in Council, ending the last substantial function left with the Nawab by the dual government of 1765.

3. Who sat in a Court of Circuit? The same judges who sat in the provincial Civil Court of Appeal, with the kazi and the mufti attached to it. The circuit duties, including gaol delivery, were ordinarily done by the second, third and fourth judges in succession.

4. Did Cornwallis change the criminal law itself in 1790? No. He changed who controlled and who tried. The substantive law remained Muslim criminal law, reformed in stages, and it was replaced only by the Indian Penal Code.

5. Why do some books date the criminal reforms to 1793 rather than 1790? Because the regulations of 1790 were re-enacted, with amendments and alterations, in 1793 as part of the Cornwallis Code. Both dates are correct and an answer should say so.