Where the Two Systems Collided

The complaint of the people who used the courts

The contemporary papers Cowell prints put the objection better than any summary can, and two passages are worth knowing.

A summary of the Court's proceedings records that arrests were made repeatedly for the same cause and used to terrify; that a purchaser of a zamindari near Dacca was ruined by suits brought by paupers on claims prior to his purchase and was finally condemned in considerable damages for an ordinary act of authority in his station; that renters and hereditary zamindars were driven away or arrested at the time of the collections and their crops embezzled; that a talukdar was ruined by the expense of pleading to the jurisdiction though he prevailed; and that in an action in which Rs 400 was recovered, the costs exceeded Rs 1,600.

And a representation to the khalsa, the native exchequer, by the diwan for the zamindari of Burdwan, states the other half of it: "The inhabitants of the interior country of Bengal are totally unacquainted with the forms and customs of the English law, with the language and phrases of the English lawyers, and with the offices of sheriff and other officers who are all English. When compulsion is offered to any person in the Mofussil, they threaten with habeas corpus and damages, but what an habeas corpus is, what are damages, what warrants, what summonses, no one of them can tell."

A system in which a successful defendant is ruined by his own costs, and in which the parties cannot name the process being used against them, is not delivering justice however correct its individual decisions are. That objection survived every reform of the period and was still being made in 1861.

The other half of the complaint

To be fair to the Court, the same papers show what it was interfering with.

The Diwani Adalats enforced claims for rent and revenue by summary process. It was a custom in Bengal, said the Burdwan diwan in the same representation, that whenever farmers and holders of trusts failed to discharge their revenue, "severities" were exercised upon them to enforce payment. The Supreme Court's interference was, in Cowell's phrase, the interference of ill-instructed English philanthropy; but what it was interfering with was the power of local authorities to use severities for the extortion of revenue.

That is the fairest statement of the collision available, and a student who gives both halves is giving the answer the topic deserves. The Court did not understand the country. What it did not understand included practices that would not be defended by anybody today.

The remark that sums up the legal difficulty

Asked what the Provincial Chief and Council of Dacca were, the Supreme Court answered: "They are no corporation in the eye of the law. The Chief and Provincial Council of Dacca is an ideal body. A man might as well say he was commanded by the King of the Fairies as by the Provincial Council of Dacca, because the law knows no such body."

Strip the flippancy and the proposition is exact, and it is the legal heart of the whole conflict. The Company's administrative bodies had no legal personality, no charter, and no statute defining their powers. A court asked whether they might imprison, distrain or decide had nothing to look at. The Settlement Act of 1781 answered it for the future by recognising the provincial courts and protecting their officers; before 1781 there was nothing to answer it with.

The consequence: government by paralysis

The Governor-General in Council's own description of the state of things is the strongest evidence of how bad it became: "All criminal justice is at a stand and seems not likely to be resumed. How can a Judge perform any function of his office? How presume to execute a criminal convicted and sentenced to death by the established laws of the country?"

Whatever one thinks of the Council's conduct at Cossijurah, that sentence describes a real breakdown. Judges of the Company's courts stopped performing their functions because they could not tell which of their acts would be treated as lawful, and Shore's minute of the same period, quoted in an earlier chapter, gives the reason from inside: the more effectually a judge performed his duty, the more liable to prosecution he became.

A worked example

A Diwani Adalat in 1778 decrees possession of a village to Gopal against Hari. Follow what could then happen.

1. Hari brings an ejectment in the Supreme Court, alleging that the true owner is an English creditor to whom he had mortgaged the village, and so bringing the case within the Court's jurisdiction over British subjects.
2. The Supreme Court gives judgment for the English mortgagee, and the sheriff of Calcutta puts him in possession.
3. The Provincial Council appoints a sezawul, a revenue officer, to collect the produce of the village and account to it, on the footing that the Adalat's decree stands.
4. Gopal applies to the Adalat, which holds its decree good; the mortgagee applies to the Supreme Court, which treats the Council's action as interference with its process.
5. Nobody in India can decide which decree prevails.

That is not an exaggerated hypothetical: Cowell records precisely this pattern, and observes that lands of which the sheriff had given possession were put by the Provincial Council under a receiver, which was not only a denial of the Court's jurisdiction but an actual interference with its process.

What beginners get wrong

"The conflict was between Englishmen and Indians." It was between two English-created systems. Indians appear on both sides of it, as plaintiffs in the Supreme Court and as officers of the Company's courts.

"The conflict ended in 1781." The constitutional crisis ended in 1781. The rivalry of jurisdictions continued in a lower key until 1861, and it is because it continued that the amalgamation was eventually carried out.

"The Supreme Court was simply oppressive." Its interventions stopped real abuses, and Module I's chapters give the evidence from the Company's own papers. Its process was also ruinously expensive and unintelligible to the litigants. Both are true.

"The Company's courts were cheap and quick." Cheaper and simpler than the Supreme Court, yes. In the same period the zillah courts were accumulating arrears that would take years to clear, and their summary process in revenue matters was the very thing the Supreme Court was interfering with.

Limits and criticism

The deepest point about the conflict is that it was not soluble by litigation, and that is why a student should resist the temptation to decide who was right.

Every dispute described in this chapter is at bottom a dispute about which of two courts has authority. A court cannot decide that question about itself and expect the other to accept it. Neither could appeal to the other. The two appeals from India, from the Supreme Court to the King in Council and from the Sadar Diwani Adalat to His Majesty in Council, ran to the same place in London but by different routes and on different terms, and it was nobody's business there to reconcile the two systems.

So the conflict continued until Parliament abolished its cause. The Indian High Courts Act 1861 did not decide which system was right; it made one court that inherited both, and the question stopped mattering. That is the subject of the next two chapters.

Quick revision

• Four forms of collision: rival jurisdiction over the same property; the Court's process running into the mofussil; actions against the Company's judicial officers; and the cost and incomprehensibility of English process.
• The figures: a talukdar ruined by the expense of pleading to the jurisdiction though he prevailed; costs over Rs 1,600 to recover Rs 400.
• The Burdwan diwan's representation: the inhabitants "threaten with habeas corpus and damages, but what an habeas corpus is, what are damages, what warrants, what summonses, no one of them can tell."
• The Dacca dewan's case, 1777: an action for trespass and false imprisonment against the dewan of the criminal court, an ordered arrest, a broken gate, and the judge dangerously wounded.
• The legal heart: the Company's bodies were no corporation known to the law, so a court asked about their powers had nothing to look at.
• The Council's own admission: "All criminal justice is at a stand."
• The conflict was not soluble by litigation, because neither court could decide the question about itself, and 1861 abolished the cause instead.

Test yourself

1. Name the four forms the conflict took. Rival jurisdiction over the same persons and property; the Supreme Court's process, including habeas corpus and arrest, running into the mofussil; actions in the Supreme Court against the officers of the Company's courts for acts done in their judicial capacity; and the ruinous cost and unintelligibility of English process to Indian litigants.

2. Give two figures that show the cost objection. A talukdar was ruined by the expense of pleading to the jurisdiction although his plea succeeded; and in one action in which Rs 400 was recovered the costs exceeded Rs 1,600.

3. What did the Supreme Court mean by saying the Provincial Council of Dacca was "no corporation in the eye of the law"? That the Company's administrative bodies had no legal personality, no charter and no statute defining their powers, so a court asked whether they might imprison or distrain had nothing to look at. The Settlement Act of 1781 answered the point for the future by recognising the provincial courts and protecting their officers.

4. Why could the conflict not be settled by a decision of either court? Because the question was which of the two had authority, and a court cannot decide that question about itself in a way the other must accept. Neither could appeal to the other, and the two appeals to England ran by different routes on different terms.

5. State the fairest summary of the collision. That the Supreme Court did not understand the country and imposed a process that ruined even successful litigants, and that what it was interfering with included the use of severities to extort revenue. Both halves are supported by the contemporary papers.