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.
By this artful mixture, and these precautions, the native jurymen would be liberated from that slavish dread, of future revenge from their own countrymen employed under government; seeing it would be impossible, for these native officers of government, to discover the particular opinion of each individual; which, if the juries were entirely native, they would infallibly do, to the utter ruin of the poor native jurymen. So that the native Jurymen, acting thus with freedom, under the cloke and protection of the Europeans, would answer all the effectual purposes of Europeans. Whilst, being sensible that they owed their freedom and impartiality, together with all the other benefits arising from juries, to their connection with the Europeans; this freedom conferred on them in the jury room, would not in the least diminish their awe and deference to government. The proceedings at these circuit assizes to be registered and transmitted in like manner as at Calcutta.