Warren Hastings to Lord Mansfield, reflecting on the legal system in Bengal, 21 March 1774

My Lord,

        I feel a very sensible regret that I have not endeavoured to improve the opportunities which I possessed by an early introduction to your lordship's acquaintance of acquiring a better right to the freedom which I now assume in this address. The great veneration which I have ever entertained for your lordship's character, and the unimportant sphere in which, till lately, it has been my lot to act, were sufficient checks to restrain me from such an attempt, however my wishes might have impelled me to it.

        I know not whether you will admit the subject of this letter to merit your attention by its importance. My only motive for introducing it to your lordship is, that I believe it to be of that importance, as it regards the rights of a great nation in the most essential point of civil liberty, the preservation of its own laws, a subject, of which I know no person equally able to judge, or from whom I could hope for a more ready or effectual support of any proposition concerning it.

        Among the various plans which have been lately formed for the improvement of the British interests in the provinces of Bengal, the necessity of establishing a new form of judicature, and giving laws to a people who were supposed to be governed by no other principle of justice than the arbitrary wills, or uninstructed judgements, of their temporary rulers, has been frequently, suggested; and this opinion I fear has obtained the greater strength from some publications of considerable merit in which it is too positively asserted that written laws are totally unknown to the Hindoos, or original inhabitants of Hindostan. From whatever cause this notion has proceeded, nothing can be more foreign from truth. They have been in possession of laws, which have continued unchanged, from the remotest antiquity. The professors of these laws, who are spread over the whole empire of Hindostan, speak the same language, which is unknown to the rest of the people, and receive public endowments and benefactions from every state and people, besides a degree of personal respect amounting almost to idolatry, in return for the benefits which are supposed to be derived from their studies. The consequence of these professors has suffered little diminution from the introduction of the Mahomedan government, which has generally left their privileges untouched, and suffered the people to remain in quiet possession of the institutes which time and religion had rendered familiar to their understandings and sacred to their affections. I presume, my lord, if this assertion can be proved, you will not deem it necessary that I should urge any argument in defence of their right to possess those benefits under a British and Christian administration which the bigotry of the Mahomedan government has never denied them. It would be a grievance to deprive the people of the protection of their own laws, but it would be a wanton tyranny to require their obedience to others of which they are wholly ignorant, and of which they have no possible means of acquiring a knowledge.

        I cannot offer a better proof of what I have before affirmed, than by presenting you with a specimen of the laws themselves, which it will be necessary to preface with the following brief history of the manner in which it came into my hands.

        A short time after my appointment to the government of this Presidency, the Company were pleased to direct the administration here to take possession of the Dewanny, or territorial government of these provinces, in their name, without using any longer the intervention of an officer of the ancient Mogul government under the title of their Naib, or deputy, and gave them full powers to constitute such regulations for the collection and management of the revenue as they should judge most beneficial to the Company and the inhabitants.

        In the execution of this commission, it was discovered that the due administration of justice had so intimate a connexion with the revenue, that in the system which was adopted, this formed a very considerable part. Two courts were appointed for every district, one for the trial of crimes and offences, and the other to decide causes of property. The first consisted entirely of Mahomedans, and the latter of the principal officers of the revenue, assisted by the judges of the criminal courts, and by the most learned pundits (or professors of the Hindoo law), in cases which depended on the peculiar usages or institutions of either faith. These courts were made dependent on two supreme courts which were established in the city of Calcutta, one for ultimate reference in capital cases, the other for appeals.

        In this establishment no essential change was made in the ancient constitution of the province. It was only brought back to its original principles, and the line prescribed for the jurisdiction of each court, which the looseness of the Mogul government for some years past had suffered to encroach upon each other.

        It would swell this letter to too great a bulk were I to enter into a more minute description, although I feel the necessity of making it more comprehensive to convey an adequate idea of the subject.

        As it has never been the practice of this country for the pundits or expounders of the Hindoo law, to sit as judges of it, but only to give their opinions in such cases as might be proposed to them, and as these perpetually occurring occasioned very great delays in our proceedings, or were decided at once by the officers of the courts, without any reference, it was judged advisable, for the sake of giving confidence to the people and of enabling the courts to decide with certainty and dispatch, to form a compilation of the Hindoo laws with the best authority which could be obtained; and for that purpose ten of the most learned pundits were invited to Calcutta from different parts of the province, who cheerfully undertook this work have incessantly laboured in the prosecution of it, and have already, as they assure me, completed it, all but the revisal and correction of it.

        This code they have written in their own language, the Shanscrit [sic]. A translation of it is begun under the inspection of one of their body into the Persian language, and from that into English. The two first chapters I have now the honour to present to your lordship with this, as a proof that the inhabitants of this land are not in the savage state in which they have been unfairly represented, and as a specimen of the principles which constitute the rights of property among them.

        Although the second chapter has been translated with a dispatch that has not. Allowed. time for rendering it quite so correct as I could wish to offer it to your lordship's view, yet I can venture to vouch for the fidelity with which it is generally. executed, such parts of it as I have compared with the Persian copy having been found literally exact.

        Your lordship will find a great mixture of the superstitions of their religion, in this composition. Many passages in the first chapter are not to be reconciled to any rule known. to us, but may be supposed to be perfectly consonant to their own maxims, as your lordship will perceive that they have been scrupulously exact in marking such cases as have received a different decision in the different originals from which this abstract is selected.

        Upon the merit of the work itself I will not presume to offer an opinion. I think it necessary to obviate any misconception which you may entertain from the similitude in the arrangement and style to our own productions, by saying that I am assured they are close and genuine transcripts from the original.

        With respect to the Mahometan law, which is the guide at least of one fourth of the natives of this province, your lordship need not be told that this is as comprehensive, and as well defined, as that of most states in Europe, having been formed at a time in which the Arabians were in possession of all the real learning which existed in the western parts of this continent. The book which bears the greatest authority among them in India is a digest formed by the command of the Emperor Aurungzebe, and consists of four large folio volumes which are equal to near twelve of ours.

        I have only to add that the design of this letter is to give your lordship a fair representation of a fact of which the world has been misinformed, to the great injury of this country, and to prevent the ill effects which such an error may produce in a public attempt to deprive it of the most sacred and valuable of its rights. Even the most injudicious or most fanciful customs which ignorance or superstition may, have introduced among them, are perhaps preferable to any which could be substituted in their room. They are interwoven with, their religion, and are therefore revered as of the highest authority. They are the conditions on which they hold their place in society, they think them equitable, and therefore it is no hardship to exact their obedience to them. I am persuaded they would consider the attempt to free them from the effects of such a power as a severe hardship. But I find myself exceeding the bounds which my deference for your lordship's great wisdom had prescribed, and therefore quit the subject.

        I know the value of your lordship's time, and reluctantly lay claim to so great a share of it as may be required for the perusal of this letter. I assure myself that you will approve my intention. My only apprehension is, that it may arrive too late to produce the effect which I hope to obtain from it. I would flatter myself that the work which it introduces may be of use in Your lordship's hands towards the legal accomplishment of a new system which shall found the authority of the British Government in Bengal on its ancient laws, and serve to point out the way to rule this people with ease and moderation according to their own ideas, manners, and prejudices. But although I should be disappointed in this expectation, I still please myself with the persuasion that your lordship will receive it with satisfaction as an object of literary curiosity, whatever claim it may have to your attention from its intrinsic merit; as it contains the genuine sentiments of a remote and ancient people at a period of time in which it was impossible for them to have had the smallest connexion or communication with the inhabitants of Europe, on a subject in which all mankind have a common interest, and is, I believe, the first production of the kind hitherto made known amongst us. I have the honour to be, my lord, your lordship's most obedient and most humble servant.

From: A. Berriedale Keith, ed. Speeches and Documents on Indian Policy, 1750-1921. Vol. I. London: Humphrey Milford, Oxford University Press, 1922, 60-66.