Part 7

We must then perceive, that this controuling deputation being seated at a properly sufficient distance from all these territorial governments, and the exercise of its powers being expressly confined to that particular seat of residence, it will, by such means, be effectually restrained from interfering, in any shape, either directly or indirectly, in the execution of any one of those governments which it is intended to controul. And we must farther perceive that, by virtue of such effectual restraint, that clear separation of office, which alone can prevent the junction or union of the powers, interests, and views of this controuling deputation with those of the executive, will be completely accomplished. Seeing that, the action of the controuling power being strictly confined within the limits of its own proper sphere, the executive power must remain at full liberty to act distinctly and freely in the office assigned to it by the sovereign.

The principal source of corruption, and grand stumbling block of virtue, being thus removed, the integrity of this controuling deputation may be established on a firm and solid basis, by skilfully dividing the parts which go to compose it: and, in particular, by clearly separating the political and judicial powers: which, if they shall be judiciously divided into two distinct departments, mutually independent and uninfluenced, will, each of them, act as an effectual check, and powerful impulse, on the other: so as to prevent either from abusing its authority, or neglecting its duty. Whereas, if the political power should, at same time, possess the power of judging, trying and determining, or should even possess any influence over the judicature, there is danger that it might, on some occasions, sacrifice its duty to its interest. And this is the very capital error of the Dutch system at Batavia, inasmuch as that government, possessing the judicial power, hath thereby the opportunity of perverting justice, sometimes to the prejudice of its constituent, and often to the detriment of its subordinates.

Nor would we be here understood to signify, by judicial power, a simple court of judicature, established for the purpose of deciding litigated cases of property; the judicial power here meant, must extend to every thing that respects a due execution of the jurisdiction and police, in the subordinate governments. Therefore its authority must not be passive, and confined to such matter as shall come before it by complaint; but it must be active, assuming cognizance of all public nuisance, trespass, or delinquency, that may be brought before it by information. For, here, juries may exist with great propriety and efficacy, seeing that the Company will, on account of her commerce, keep a number of servants at this supreme settlement; there will likewise be, no doubt, many free merchants (as they are termed): and, consequently, there will never be wanting a choice of persons unconnected with, and uninfluenced by the political government; and therefore fit to form a grand inquest; as well as petit or special juries, to decide in either criminal cases, or disputes of property. And this judicial power must farther be endued with all proper and necessary officers; particularly an attorney general: it must likewise be divided into distinct courts; resembling, as nearly as circumstances will admit, or occasion requires, the courts of justice in the sovereign country.

Nevertheless, we do not presume to dictate or prescribe the exact or complete form of this judicial power: we would only hint at the main purposes of its institution; a due consideration of which will readily suggest the particular form, to those whose province it may be to construct it. We shall only observe that, in order to confer a due weight on the judicial power, it is not sufficient that it should be independent, in its corporate capacity; the judges and officers composing it must, in their personal capacity, be placed as far as possible beyond the influence of the political power. The salaries annexed to their offices must be such as will afford dignity, as well as independance: whilst, on the other hand, they shall be debarred, under the severest penalties, from holding, either directly or indirectly, any place, post, emolument, or employment, of any nature, distinct from that of its own proper department. Moreover, the political power should hold no voice in conferring the degrees of this department: that should be vested in the judicial power itself, with reference to the confirmation of the sovereign.

This judicial power may be termed the supreme Court of Judicature, for the whole British dominion in India: to which all the subjects, under the several governments, whether natives or Europeans, may readily appeal, against the oppression of their governors, or the perversion of justice: and, on which they may securely depend for redress; provided it shall be placed above the influence of the political power. This supreme court of judicature would likewise be of inexpressible utility, as a check on the power, and an impulse on the will, of the political branch.

We may add, that a judicious subdivision of the political power, into different departments, might contribute considerably to its virtue.

These are the outlines of that measure, by which we propose to preserve this controuling deputation free from corruption: and we doubt not but, upon this plan, when meliorated and improved by the superior understanding of others, a controuling power may be constructed, which shall be completely qualified, in point of virtue and integrity, to faithfully and honourably superintend, enforce, and controul the execution of political government in those Indian dominions. And this is, by far, the most difficult, delicate, and important part of the undertaking.

For, as to the power and ability, requisite to qualify this deputation for effectually fulfilling the purpose of its institution, that is readily bestowed. The degree of power is altogether in the disposal of the sovereign. And, its efficacy or ability depends, principally, upon the choice of such a situation for the seat of its residence, as shall enable it to keep up, at all seasons, a ready and speedy correspondence with the several subordinate governments,

With regard to the choice of situation proper for the residence of this controuling power; (which is indeed a point of high importance,) we shall readily conceive, from adverting to its nature and the purposes of its institution, that this residence ought to be some convenient sea port; situated at a considerable distance from the limits of all these territorial governments; but, at same time, so centrically near to each, that the communication, to and from it, shall, in either monsoon, be not only practicable, but certain and speedy. I shall reserve the farther explanation of this intended seat of residence, till I come to treat of the military system; because there are some properties, particularly requisite to a proper centre of military defence: and it is proposed that the same power, and consequently the same residence, that superintends the political government, should likewise direct the military government and defence, of this dominion.

But this supreme controuling power being thus centrically situated, with respect to the several subordinates, as that it shall at all times hold a ready and speedy correspondence with each, will be thereby enabled to effectually superintend, enforce, and controul the execution of political government in that whole dominion. For, in the first place, the ready and speedy communication with all the subordinates, affording to the supreme power an opportunity of obtaining, from each, the most early intelligence of every transaction, incident, or occurrence; as likewise of immediately transmitting the orders and instructions, that may be suitable to the occasion; will cut off from the several governors of the territorial dominions all pretext for acting discretionally. And, in consequence, that despotic and arbitrary power, which hath subsisted under the Company’s system, will be completely suppressed. And, from adverting to this circumstance, we shall perceive the importance of a proper choice of situation, for this supreme center of government.

In the second place, this ready correspondence with all the subordinate governments, enabling the supreme power to acquire a minute and complete knowledge of every circumstance, respecting the state and nature of the general police, in this whole dominion, will qualify it for originally planning, and for afterwards improving, all such designs and measures as can contribute to the institution of regularity and good order. It will likewise attain an intimate knowledge of the whole manoeuvre of finance, respecting the mode of collecting as well as appropriating the revenue and taxes: and it will be thereby enabled to project judicious forms, with different offices, as mutual checks upon each other, in that branch: which will serve to remedy that incredible extortion, rapine, and peculation: which, by ruining the farmer of the lands, hath almost totally suppressed agriculture, and greatly depopulated those miserable countries; whilst it hath grievously defrauded the sovereign of his right. And all these planned modes, being approved and confirmed by the sovereign, would be continued in vigorous and perpetual action, by the vicinity of the supreme political power: and all these several measures, being enacted into laws, the strict observance of them would be effectually enforced by the same vicinity. And thus, that supreme power will, not only establish, but perpetually conserve a just regularity in police, and an exact oeconomy in finance.

In the third place, the supreme judicial power will, by its neighbourhood to these dependent dominions, acquire a just knowledge of the modes, customs, and dispositions of the inhabitants; and, by that, it will be enabled to devise the best forms or offices, together with skilful rules for administring the jurisdiction, in a manner truly effectual, and at same time consonant and agreeable to the humour of the subject. It will likewise be capable of afterwards improving and adding to these forms and rules, as future occasion may require, or better information may suggest. All which forms or offices may, by the approbation of the sovereign, be established into standing courts; and the rules enacted into laws. And a punctual observance of all these laws enacted, either for the regular administration of justice, or conservance of the police, will be completely enforced, by the awe of this supreme tribunal: the communication with which, from all parts of that dependent dominion, being easy and speedy, will afford a ready access and opportunity to all the subjects, of presenting their complaints, against any oppression of their government, or denial, or perversion of justice: whilst the same ready communication will render the trial of all litigated cases, speedy and easy. A mighty innovation this, from the former mode of justice in those dominions; when it was impossible for even Europeans to obtain redress, in our distant precise European courts, against the most glaring oppression of government: and the natives were excluded from even that distant and deceitful prospect of remedy.

And in order that the course of justice may be rendered thoroughly complete, it may be enacted, after the manner of the Dutch, that no person, who hath held any office of power or trust within the subordinates, shall depart immediately from thence for Europe; but shall be obliged to repair to the supreme residence; there to remain for three months; to the end that any person or persons who may, by any means, have been restrained, during the existence of his office, from preferring their complaint against him, on the score of either public or private trespass, may there have the free opportunity of prosecuting him.

The supreme political power shall immediately appoint to all offices, as well political as military, within the subordinate governments; with reference held to the future approbation, and confirmation, of the sovereign: and it shall preserve regular minutes of all such appointments, orders, and other transactions made in its supreme capacity; which minutes, together with regular and properly vouched accounts of the collection, as well as the appropriation of the revenue, shall be punctually transmitted, by every occasion, to the sovereign. The judicial power shall likewise keep an exact register of all trials, causes, and proceedings; more particularly those of the grand inquest and assizes: this latter to be signed by all the judges and officers of the court, and attested by the foremen, with a majority of the juries: two copies of which shall be regularly transmitted to Britain; one to the sovereign; and the other to the Company; which, as holding a material interest and share in these law proceedings, hath a claim to such participation of knowledge. All which minutes, accounts, and proceedings, being communicated to the sovereign, will enable him to act as an ultimate check on the political government, the finance, and the jurisdiction of that Indian dominion.

Such is the form of this intermediate power, through which I propose to convey, into the execution of government in those distant Indian dominions, that plenary exertion of the sovereign’s restraining and compelling power, which, alone, can suffice to prevent tyranny and anarchy. And notwithstanding the materials are, through hurry and want of time, rude, unpolished and coarsely arranged, yet do I flatter myself, that candour will allow them to be solidly good, proper, and fully sufficing to construct, at least, the groundplot, or basis, of a regular political system. Sure I am, the high propriety, nay the indispensable necessity of such a measure, must immediately strike every person who employs his own judgment, however slightly, to consider, first, the nature, interests, and views of the executive government in those Indian dominions; as being foreign, deputed, mutable, and temporary. Second the timid, passive, and slavishly submissive disposition of the native subjects. And third, the distance of situation, betwixt the sovereign residence, and the scene of government; which, rendering the immediate restraint and constraint of the sovereign perfectly impotent, confers on this foreign executive deputation an unlimited and arbitrary power, of promoting its own personal views and interest, by measures, which tend to the intolerable oppression of the wretched inhabitants, and the utter ruin of those subjected countries; as well as to the mighty detriment of Britain’s dearest interest, and the blackest reproach to her reputation. Nor can all this be remedied or prevented, but by such a measure as is here proposed.

And now we shall take a slight glance at the operation of this measure, on the jurisdiction, and police, of the subordinate dominions. And though, for the sake of perspicuity, we confine the view to Bengal alone, as being the most eminent part, yet will the effects be equally felt through the whole.

As to the fundamental establishments of Governors, Councils, &c. these are sufficiently obvious; as likewise are the proper chambers of revenue: and these, with the minutiæ appointments of inferior offices, will be more properly provided and improved, by the better judgment, true information, and future experience of the supreme controuling power. Here we mean to offer only one or two hints on the mode of jurisdiction and police.

And first, with regard to the courts of justice, I should propose that the mayor’s court at Culcutta should still subsist, as a court of equity for the whole country: and a most equitable court it is, if properly regulated: for the truth of which assertion, I appeal to all those who knew it previous to that alteration of the Company’s charter of justice, which rendered it dependent on, and subservient to, the Governor and Council: never was justice more exactly or more expeditiously administered, than it was by this court, previous to that alteration. In order therefore to restore it to its primitive utility, it ought to be restored to its original state. Let the judges or aldermen, who at present compose it, continue such: being servants to the Company, or free merchants, they must be unconnected with, and uninfluenced by the national government. And, in the case of death, or removal, the vacuum to be supplied by the court itself, from amongst the Company’s servants, or free merchants only: and if any alderman shall, subsequent to entering on his office, accept of any post or place under government, let that be an express disqualification and vacation of his office; which is to be immediately made good, by the choice of another person, properly qualified. The newly elected aldermen to be presented, for acceptance, to the supreme court of judicature only. And the officers of this court to be chosen by itself.

But as it would be impossible for the mayor’s court to dispatch all the business that might be brought before it, there ought likewise to be a court of law; consisting of a chief justice, with three judges; to be appointed by the sovereign. And this court should guide itself, by such laws as may be enacted for the jurisdiction of those countries; otherwise by equity.

Appeals from this court of law, as well as that of equity, to be made immediately to the supreme court of judicature; and from thence to his Majesty in council.

If it is thought proper, there might be another mayor’s court, of the same nature, established at Cossimbuzar, in the neighbourhood of the old capital, Maxadavad.

And as to the forms, for the more universal distribution of justice to the natives, these will be adjusted by the supreme supervising power; as before mentioned. We shall only observe, that their courts of Zemindary and Cutchery are, as they stand at present, a grievous nuisance.

But the noblest institution for protecting the liberty and property of the subject, from the extortion and oppression of their foreign government, and of its inferior train of native harpies, who are infinitely more rapacious than the Europeans, would be that of juries, properly constructed. Let the grand inquest of the country be held at Culcutta, four times in the year: and let the juries, both grand and petit, be expresly composed of Company’s servants, or free merchants, Europeans, and none others: the judges of law, or at least two of them, to sit on the assizes: the sheriff to be chosen annually, from amongst the Company’s servants.

The powers of this grand inquest, if adapted to the situation of things, must be enlarged beyond these of our juries in Britain; where there are judicial and political aids, that must be wanting in those countries: for instance, the enquiry must not be confined to place, but must extend every where through the country: it must likewise have authority to bring before it all manner of nuisance or trespass committed against the liberty or property of the subject, natives as well as Europeans. And the judges should have no power to reject or postpone the bills, found by the grand jury: but should bring them on to decision, in turn, as presented. Moreover, as the extent of enquiry may render it impossible for the more distant defendant to appear with his evidences, during the sitting of that assize to which the bill hath been presented against him; let summons be issued, upon the bill’s being presented, for such distant defendant to appear at next assizes; or let some other method be found, either by means of the grand jury’s meeting a sufficient time before the commencement of trials, or by some extraordinary power vested in the judges or sheriff to produce such distant defendant with his evidences in due time. And as this same extent of enquiry may, on the other hand, produce inconvenience to the subject, by affording occasion to litigious persons of distressing others, by bringing them from a great distance to these assizes, on frivolous or ill grounded complaints, it may be ordered that, where the cause shall appear to the court truly litigious, the plaintiff shall be bound over to stand suit at law, for damages to the defendant: and, one or two examples, of this nature, will prove a barr to frivolous litigation.

And least the judges should, by any means, be influenced to act that part which the Company’s governor and council commonly act, when they absurdly preside at these assizes, as his Majesty’s judges in their own cause; namely, to dismiss the Court, so soon as the grand jury shall find a bill that may be disagreeable to them; it may be ordered that neither the judges, nor any officer of the Court, shall have power to adjourn the assizes, until all the trials shall be decided; or, otherwise, by the consent of a majority in both juries.

The principal check however upon the conduct of these assizes, would be that of obliging the Court to keep exact registers, of all trials, and proceedings; signed and attested, as before mentioned. And if any part of either jury shall except to the authenticity of such register, which shall be publickly exposed in the Court, then, such dissenting part shall have a right to protest, and assign its reasons. Three copies of which register, with protest, (if any,) shall be dispatched, by the earliest occasion, after each assize. One copy to the supreme Court of Judicature, which will, thereby, have the earliest notice of any abuse; and, with the concurrence of the supreme political power, shall have the opportunity of immediately correcting it. A second copy shall be transmitted to the sovereign; who will act as an ulterior check on the supreme controuling power. And a third copy to the Company for the reasons before specified.

But, as this single inquest at Calcutta cannot possibly carry justice to the extremes of that extensive country, circulating assizes may be held, at least once, or if possible twice a year, at Muxadavad as the center, and at Patnah as the northern extreme; two judges to go this northern circuit: and the other two judges to go on an eastern circuit, at Dacca. And, as there may not be a sufficient number of Company’s servants, properly qualified, to form complete juries at these northern and eastern assizes: I would propose that, to make up any such deficiency, natives should be mixed with the Europeans. Which mixture, if it shall be artfully tempered, in the following manner, would produce all the efficacy of entirely European juries; and, at same time, none of the bad effects, that might be apprehended, from an attempt to confer freedom and impartiality on juries entirely native.

Let, at least, one half of both the grand and petit juries be Europeans; and the remaining part natives: and if it should happen, that there cannot be collected, at the assize factory, and from the neighbouring inferior factories, so many Company’s servants as shall make up half the usual number of jurymen; then, let the whole number be diminished, to the sufficing half of Europeans. Let the unanimity of verdict, in such mixt juries, be dispensed with; and let the majority of voices, in either jury, find the bill or verdict; as is the custom in Scotland. And let an additional provision be made to the oath of the juryman, purporting that he shall not, on any account, disclose the opinion given by any individual, in the jury room.