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never be entered by a neighbour, save with his consent. Time out of mind, the village and its common interests and affairs have been ruled over by a council of elders, anciently five in number, now frequently more numerous, but always representative in character, who, when any dispute arises, declare what is the customary law, and who, when any new or unprecedented case occurs, occasionally legislate. If strict language be employed, legislation is the only term properly expressing the invention of customary rules to meet cases which are really new."1 For the best Indian authorities concur in saying, that, when not actually the fact, the reverent fiction is resorted to that the village council is but declaring what is the customary law. "The municipal and village institutions of India," says Sir John Malcolm, "were competent, from the power given them by the common assent of all ranks, to maintain order and peace within their respective circles. In Central India, their rights and privileges never were contested even by tyrants, while all just princes founded their chief reputation and claim to popularity on attention to them." 2 Sir Thomas Munro, who was intimately acquainted with other districts, says "In all Indian villages there was a regularly constituted municipality, by which its affairs, both of revenue and police, were administered, and which exercised, to a very great extent, magisterial and judicial authority." He describes minutely the division of duties and gradations of office in these corporate systems; how the public treasurer was a distinct functionary from the magistrate, and how they had at their command a body of tahars or constables to guard the security of individuals.

The most remarkable of all the native institutions was the universally acknowledged jury system. The manner 1 Professor Maine, p. 116.

Malcolm, vol. i. chap. xii.

in which the members of the punchayet were chosen depended upon the nature of the cause at issue. But in every case they were named by popular suffrage. The presidents of these traditional courts "were always men whom the voice of the people had raised into consequence as their defenders against misrule; and who looked to a reward in an augumentation of personal influence and reputation. This they frequently gained, and the applause and attach-. ment of their fellow-citizens was always greatest when they were successful aids to good rule, or courageous opponents of bad." The panel out of which the members of this tribunal were selected was unlimited as to rank and creed. Either party might challenge such persons as he deemed unfavourably disposed to him, and this right extended under certain restrictions even to the mookh or president. To be frequently chosen president of the local court was considered the highest compliment which any one could be paid, and to be selected a member was held to be a distinction among both rich and poor.

1

2

This was equally true regarding civil and criminal issues, and its essentiality in the moral and social life of the people is plain. Subordination to authority, the security of property, the maintenance of local order, the vindication of character, and safety of life, all primarily depended upon the action of these nerves and sinews of the judiciary system. To maim or paralyse such a system, reticulated minutely throughout the whole frame of society, and acting silently and habitually, without question or friction, to the remotest extremities, may well be deemed a policy which nothing but the arrogance of conquest could have dictated, and the blindness of irresponsible domination could have persisted in. Yet these municipal institutions, which con2 Malcolm, vol. i. chap. xii.

1 Malcolm, vol. ii. chap. xvi.

fessedly had been scrupulously respected in all former changes of dynasty, whether Mohammedan or Mahratta, were henceforth to be disregarded, and many of them to be rudely uprooted by the new system of a foreign administration. Instead of the native punchayet, there was established an arbitrary judge; instead of men being tried when accused, or appealing when wronged, to an elective jury of their fellow-citizens, they must go before a stranger, who could not, if he would, know half what every judge should know of the men and things to be dealt with. Instead of confidence, there was organised distrust; instead of calm, popular, unquestioned justice, there was substituted necessarily imperfect inquiry, hopelessly puzzled intelligence, all the temptations to indolent inattention, and all the liabilities to unconscious mistake; the mute despair of injustice suffered, or the gnashing of teeth at irreparable wrong,not the less wrong when inadvertently and unintentionally done. A settled purpose was disclosed of substituting rudely the arbitrament of foreign officials, guessing at the facts through interpreters, and stumbling over habits and usages it must take a lifetime to learn, but which every native juryman or elder could recall without effort, and apply to the facts before him without hesitation. No wise just historian will note these things without expressions of wonder and condemnation.

Hastings himself was fully conscious of the lawlessness of the newly-imposed laws. He admitted that the taking of the whole criminal jurisdiction of the country into their own hands "was a usurpation, but they could not avoid it," he said; "they would have had clashing powers," and

"that justice might have a footing, by hook or by crook, in Bengal, we took it under our own protection."1

'Letter to Mr Dupre, January 1773.

The substitution of an exotic system of jurisprudence for that which was indigenous, and had its roots in the ideas, traditions, and manners of the people, had ever since the transfer of the Dewanny been steadily going on. Under the advice of Hastings it was completed by the Regulation Act in 1773, the third clause of which constituted the High Court of judicature at Calcutta, with a Chief-Justice and three puisne Judges, clothed with plenary powers, both of first instance and of appeal in all cases, whether civil or criminal. Four English lawyers took their places the following year on the new judgment-seat, their chief being the early friend of Hastings, Sir Elijah Impey.

CHAPTER IX.

THE ROHILLAS.

1773-1776.

"The object of Hastings' diplomacy was at this time simply to get money. His finances were in an embarrassed state, and this he was determined to relieve by some means, fair or foul. He laid it down as a maxim that when he had not as many lacs of rupees as the public service required, he was to take them from anybody who hal. The Directors never enjoined or applauded any crime. Whoever examines their letters will find an admirable code of political ethics. But every exhortation is nullified by a demand for money. 'Govern leniently, and send more money;' 'Practise strict justice and moderation towards neighbouring powers, and send more money.' Being interpreted, these instructions simply mean, 'Be the father and the oppressor of the people; be just and unjust, moderate and rapacious.' He correctly judged that the safest course would be to neglect the sermons and to find the rupees."

-LORD MACAULAY. 1

WHEN Lord North and his colleagues determined to

confer the chief place in the remodelled system on Mr Hastings, they secured, as they believed, the services of the ablest man on the spot, and the benefits of the greatest administrative experience; but they chose along with him three men of a wholly different stamp, who might, it was hoped, curb his ambition, and temper his exercise of power. General Clavering, Colonel Monson, and Mr Philip Francis were named in the Act as members of Council. They were all persons of high political character, and Francis, though still unrecognised as the author of the work which has become identified with his name, was confessedly

1 Critical and Historical Essays, vol. iii. p. 244.