On the other hand, it is equally certain, that this controuling deputation cannot execute in person, or assume any personal share in the execution of measures, in any one of those governments where it doth not actually reside; it being impossible that it can act personally where it is not personally present. It therefore follows that, by situating or placing this controuling deputation at a sufficiently proper distance from all these several territorial governments, it may be prevented from assuming a personal share in the immediate execution of measures in any one of them. And being thus, by the situation of its residence, cut off from all opportunity of acting personally, it may likewise be precluded from acting secondarily, or usurping by proxy any influence, in the immediate execution of these governments, if it shall, after the manner of the Dutch government at Batavia, be strictly prohibited from exercising its supervising authority any where without the limits of its own fixed residence; and from delegating or deputing its powers to any person or persons, its own members or others, who shall reside, or may be beyond these prescribed bounds. For though the system of the Dutch government at Batavia is, in many respects, far too rude and unpolished; yet is it, in this particular, most nicely circumscribed: that government being restrained, in the most precise manner, from delegating and transferring its authority; or from deputing any power to examine into cases, of even the most dubious nature, within the subordinates: but to obviate any inconvenience, that might otherwise arise from such restraint, it hath a power to call before it, from the subordinates, all persons or records necessary to information. For the Dutch were well aware, that the supreme government, if it should be permitted to carry its supervising authority on any pretext into the subordinates, would gain an occasion of interfering in the execution of those measures which it was intended to controul.
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.