Графични страници
PDF файл
ePub

ground on this principle, which though falfely applied to Mr. Fox's bill, deftroyed it. The fact was, a word was caught at, and by mifapplication, that fingle word proved fatal. It was the word charter, which had been fo egregiously perverted at the time, that a charter of monopoly had been confounded with Magna Charta.But what would be faid of the prefent law, with reference to the extract from his Majefty's fpeech, but that it was directly in the teeth of that principle? He next proceeded to ftate what the law did: aft, It enforced a difcovery of property on oath, and held out an option to perfons already fufpected of crimes, whether they would take that oath or not. 2d, It contained a compulfion to answer interrogatories on oath, that was to prove by new oaths the truth or falfehood of the firft. 3dly, It gave encouragement to informers, which was deftru&ive of the morals of the people. Having ftated thefe particulars he then reafoned upon the wickedness of their tendency.

He appealed particularly to thofe Gentlemen who had ferved in India, and put the cafe of his Hon. Colleague in Bengal, and asked, would that Gentleman, whofe labour and fervices would have been great indeed, if they had equalled his rewards; would that Gentleman have chofen to have taken the oath, or to have been tried by fuch a judicature? He believe he might anfwer for him, he would not. Let him therefore afk all the Gentlemen who had been in India would they make laws for others which they would not confent to for themselves? Would they fay, occupet extremum fcabies ?--The new judicature abandoned the ancient trial by jury, to which every individual is entitled. If the new judicature was really chofen with indifference, it followed, that nothing was gained in point of knowledge and capacity, at leaft with refpect to ten of them, over a fpecial jury; lords and judges, not the peers of the criminal; law, verdict, and fentence united in the fame perfons, whofe votes were equal, fo that the commoners might over-rule the judges in points of law, and the lords and judges might find the facts against the commoners. Although the form was changed, the fundamental principles on which juf tice had been heretofore adminiftered in England, ought not, he faid, to be abandoned; that the general principles on which juries were formed might be adhered to, and that the challenge was imperfe&t. He asked did not that reach the judges ?

And then observed, that all the chal lenges were peremptory, and that no fa ther challenge was allowed for cause al figned; that confequently the party ac cused muft confine the latter within the limit of the former. That fuppofing the cafe his own, one of the judges might be his enemy, and though he might not be allowed to object to him in his place on the Bench, yet if he became his jury man, he ought to be allowed to challenge him for cause.

He would fay but one word on chufing the panel. In the very inftance it had been chofen by Treafury lifts; the tribunal at laft obtained, profeffedly confifted of thirteen perfons; yet, in fact, the power of the thirteen was finally committed to feven. In this fmall number unanimity might be demanded, at least with refpect to the verdict; inftead of that, a new and most dangerous principle was affumed; that the facts might be found, the law de- ' termined, and the punishments awarded by four perfons out of feven. That is, that poffibly one lord and three judges! might find all the facts against the finding of the three commoners; or, vice versa, that four commoners might determine the law against the three judges. What they would do, Mr. Francis faid, he knew not, but that they might do, under the prefent inftitution. He next treated of the con duct of the trial. There were two things, he said, which had hitherto been deemed effential to the due administration of juftice in England:

1. It was peculiar to England, that the jury fhould not feparate before they had found their verdict.

He ftated the uses and the reasons of this practice, viz. to guard againft improper influence, and to fecure the fpeedy determination of caufes; the prefent tribunal, on the other hand, had a power to adjourn, and who knew who they might confult; might they not even compound with the party?

2. It was not only a principle of this country, but of every other where juftice is really adminiftered, that the trial shall be in open court.

The infpection of the publick eye, was, Mr. Francis obferved, a great tie on the integrity of judges, and to which the beft judges had been always ready to fubmit, and therefore it was no impeachment of the prefent tribunal. An open trial obliged the judge to chose in every instance between his reputation and his duty; whereas this new tribunal tried

Mr. Francis concluded his very long and able fpeech with declaring, that his prefent idea was to extirpate evil, and to revert to what was good, or to what had not been improyed by innovations; to ftrengthen that good, if it was weak, and not to enact much by new and pofitive inftitution. That undoubtedly he would doa great deal more, if the government was in perfons who would co operate, or whose fentiments were not adverfe to his. His project in general, was to correct evil by retrenchment, rather than by instication, and, at all events, to do no mifchief; that what he did fhould execute itfelf, and not depend on the indifpofition or neglect of adminiftration. He fhould therefore leave the government at home as it flood; reveit to the bill of 1774 for the government abroal, that is, reitore a government by five perfons; cut out every thing that related to the new inquifition and tribunal, and replace the law in ftatu quo. Before he fat down, he declared himself ready to arm the King's Bench with new powers, ready to improve the forms of proceeding, and ready to facilitate the means of getting at evidence; but that a claufe refpecting all writings in the courfe of official correfpondence must be qualified. He then moved,

Januis claufis; one great guard over the virtue of judges was therefore removed. He added various ftrong and pointed ob fervations on the facts he had stated, and conclufively faid, that whether any thing he might be able to bring forward might be good, or not, all that he had touched upon as forming a part of the exifting law, was completely bad. He exprefed an anxious wifh, that the Houfe would revert to the ancient mode of trial by jury, and after urging it ftrenuously, lamented the absence of Mr. Lee, who was kept away by illness; had not that been the cafe, he fhould have had the advantage of his powerful aliance, as to the law part of the till. As the cafe food, the onus, he conceived, would be on thofe who affirmed that a jury was not competent to try the caufes in queftion, and that juftice could not be done by any other means than by the tribunal that had been inftituted.For his part, he was of opinion that the Court of King's Bench might be armed with new powers, and all difficulties in refpect to evidence and pleading removed, and yet the jury might find the facts.The crimes in queftion, he obferved, were not political or tate crimes, but extortion and mifdemeanors. He asked, why every offence called a mifdemeanor, fhould not be tried by a jury? He defired thofe who innovated, to thew him the affirmative reafon. He took notice of the triumph manifefted at the fuppofed difference between Mr. Burke and himfelf, and diftinguished between the forts of cafes in which trial by impeachment, and those in which trial by jury might be moft proper. He paid Mr. Burke a feries of high compliments for his genius, his talents, and his integrity; he commended him for having chofen the mode of proceeding against Mr. Haftings that was then in progrefs; he faid, his Right Hon. Friend had acted wifely in boldly ftanding forth.pofed to amend and modify, viz. That part in the ancient, ufeful, and truly noble character of an accufer; he added, that if the prefent age were fo ungrateful as to withhold the praife due to his merit, pofterity would revere his memory, and he would not fail of meeting a due reward hereafter. It was true, he faid, they had chofen different modes of prolecution; and the reafon was, becaufe the cafes were effentially diftinct, and requi red feparate procelles. They were not, however, far diftant; they were near each other, purfuing parallel lines; not clafhing, but going on pari paffu to the fame goal.

POL. MAG. VOL, X. JUNE, 1796.

"That leave be given to bring in a bill "to explain and amiead an act made in "the 24th year of the reign of his pre"fent Majefty, entitled "An Act for "the better Regulation and Management "of the Affairs of the Eaft India Com

[ocr errors]

pany, and of the British Poffeffions in "India, and for eftablishing a Court of "Judicature for the more fpeedy and ef"fectual Trial of Perfons accufed of "Offences committed in the East Indies."

Mr. Dundas recapitulated the heads into which the Hon. Gentleman (Mr. Francis) had divided his ftrictures on the bill he pro

which affected the government of the Company's affairs at home, that which regu Jated their adminiftration abroad, and that which conftituted a new judicature for the trial of perfons accufed of extortion and mifdemeanor in thofe fett'tments, in which laft divifion he had included what certainly did not immediately belong to it, the obligation impofed on the fervants of the Company, on their return to Europe, to account, on oath, for the property they might have acquired during their roh dence in India. He fhould not, he faid, for the prefent, enter into the full extent of the question, but thould fay fomethi.

3 L

on each part of it, referving the remain. der for a future occafion, not far diftant, when the fubje&t would again be brought by him before the Houfe. The Hon. Gentleman had complained, that in the alteration which had been made in the government of the Company's affairs at home, the refponfibility was fo divided between the Board of Controul and the Court of Directors, that it was impoffible to afcertain, in cafe of mifcarriage, where the fault lay. To this he would anfwer, that at prefent the refponsibility was infinitely more direct and complete than it had been before; for whenever the Board of Controul and the Court of Directors coincided in their orders, then each body was anfwerable; but when they differed, then the Board of Controul was liable to account; by which means the refponfibility was rendered more tangible, as it was, in fome inftances, transferred from a fluctuating and uncertain body, as the Court of Directors was, to one of a permanent con ftitution, the Board of Controul, and, in other infances, extended to them both. It might happen in the former fyftem, that the whole body of Directors might be changed between the time of adopting a particular measure, and the difcovery of the bad confequence refulting from itwho then was to be called to account?The criminality would appear; the authors of it could not be found: As to the Hon. Gentleman's complaint, that the executive authority of the Company had been feparated from the patronage, that, he contended, was the most valuable and beneficial part of the whole fyftem; be caufe when the exccutive power was in the Directors, the patronage they enjoyed, tended very much to fetter and embarrass the exercife of that power; for every order of theirs being calculated to affect their fervants in India, and thofe fervants having been appointed by themfelves, and, of courfe, out of their own families and connections, it followed that they had private feelings with regard to them; which private feelings and affeetions, from the natural prejudices and weakness of humanity, materially interfered with their conduct with regard to the publick. Now the feparation of thofe two powers of executive government and patronage, would effectually remedy that inconvenience, and the Board of Controul having no fuch ties of friendship and affection to the fervants of the Company, would have no other object in the execu tion of their office, but the benefit of the

[ocr errors]

publick. As to the alteration in the go vernment in India, he was decidedly of an opinion contrary to that given by the Hon. Gentleman, and though he should feel great uneafinefs in being obliged to enforce his own theory in oppofit on to the experience of the Hon. Gentleman, yer that une finefs was much diminished by the authorities with which he could meet the Hon. Gentleman's perfonal knowledge of the fubje&-for there was not a person whom he had conversed with, that did not pofitively condemn the former ftate of government of that country; and, among the reft, he would infarce one great example in the perfon of Lond Macartney, who had declared, that none but a madman would cenfent to accept the government, while it remained on its former footing. He muft alfo, he faid, contend, that the Hon. Gentleman's propefal for remedying the difeafe of a cafting voice [at this word a laugh, in which the Speaker feemed heartily to join] was by no means adequate to the object; for the appointing five perfons to the Council would not be fufficient, unless it fhould be contrived that these five perfons should all live; for otherwife, the determination of many queftions must depend on the cafting voice, and it was extremely probable that for a long feries of years, no question would be decided except by a cafting voice. He then proceeded to that part of the fubject, on which, as he faid, the Hon. Gentleman had feemed to ground his principal objection to the prefent fyftem-that which efablished a new judicature for the trial of delinquents returned from India. On this head, he could not but differ moft widely from the Hon. Gentleman. This judicature, he admitted, was reprefented by fome perfons at home, and he believed was looked upon by many others in India, as a moft dangerous and exceptionable meafure; but he had reafon to think, that in general, it was confidered in a very different point of view. He contended, that the prefent mode of trial had all the advantages attending the trial by fpecial jury, and none of its difadvantages-that although the defendant had no right of challenge, yet there could be no objection to that defect, because the Court was appointed in fuch a manner, as to leave no room for that neceffity of admitting challenges that exifted in trials by jury; all perfons who might be fuppofed to have any bias or prejudice, either from their having been too intimately acquainted with the circumftances, and therefore

{

being liable to a fufpicion of having been pre-determined, all who had ever been in India, all who were connected with the India Company, or all who could be fuppofed under the influence of Government by means of employments, were excluded. The Court confifted of perfons of high rank and caracter, and fuch as could not afford the finalleft reafon to apprehend any injuftice or partiality from them, unless it was contended that juft ce and impartiality were things not to be found amongst mankind in any clafs; and, if fo, then no judicature could be thought pure and upright. With this fpecies of argument he alfo anfwered the doubts the Hon. Gentleman had expreffed arifing from the danger of the judges being corrupted, and pointed out, that if there were any founcation for fuch an apprehenfion, there was also as much danger in every other trial; for even before a jury the judge had great weight and authority-he could pofively determine on the competence and admiffibility of evidence; he had great influence in establishing its credibility, and befides it was part of his duty to fum up the whole, and put upon it that conftruction which feemed to him moft proper; he had, in fhort, in many inftances great power, and in others great influence, until that ftage of the trial in which the jury were cloicted for their final determination, And as the three judges were to be appointed one by each court, there was no doubt but fuch of them would be appointed by their brethren on the bench, as ap peared to them moft proper, from being leaft liable to any unfair impreffion or prejudice. He took a view of the arguments ufed by Mr. Burke, when he opened the proceedings against Mr. Haftings, concerning the different modes of bringing a delinquent from India to justice. That Right Hon. Gentleman, he faid, had difclaimed trial by jury, as not calculated for the cognizance of fuch accufations, and in fo doing he was certainly extremely prudent; he himself knew too well how difficult it was to proceed by a bill of pains and penalties; becaufe when on a former occafion he had adopted that method, he found numbers of gentlemen, who, though extremely willing to profecute the accufed, and to inflict an adequate punishment if the guilt thould be proved, ye: declared that they would then, and on all occafions, fet their faces against a bill of pains and penalties. The only remaining method then of proceeding was by impeachment, which the Right Hon.

Gentleman he had last alluded to, had adopted in the profecution at that moment depending, as the only way by which juftice could be expected. He took a comparative view of the two modes of trial, that by the prefent judicature, and that by impeachment, and pointed our that the former was as unexceptionable as the latter, as well from the purity of its appointment, as from the numbers of which it confifted; for the Court of the Lord High Steward might confift of as few members as the Eaft India Judica-. ture. And the Houfe of Lords, when they fat in the High Court of Parliament, were not fubject to any challenges, which this Court, though not actually, yet from the mode of its conftitution might be faid virtually to be. The Hon. Gentleman had exprefled his une finefs that no pro vifion had been made to prevent the Court from proceeding to trial with fhut doors; but he apprehended the omitting to mention any fuch matter in the bill, was by no means a fanction for adopting a custom fo diametrically oppofite to the common law, which directs, that all courts of ju dicature fhall be open, and which, of course the prefent must be neceffarily in compliance with the rules of the common law, that are always to continue in force, unlefs particularly avoided by the exprefs words of a statute, which not being done in this act, there could be no pretence r the doors of this Court being fhut. He inftanced Mr. Grenville's Election Bill, in which there was no particular injunction to preferve fecrecy in the proceedings of the Committee to be appointed under it; and yet, in purfuance of the principles of thecommon law, their doors were always kept open. The complaint made of the power the Court had to adjourn from time to time, was one, which like fome of the others, proceeded from the principle that human nature was fo depraved, that no fecurity was to be expected against wickednefs and temptation; he fhould there fore attempt to give no answer to it upon that principle: he would only inftance the laft mentioned judicature under Mr. Grenville's bill, and alfo in the cafe of trials before the Houfe of Peers, where it was the constant practice to adjourn de die in diem; and yet in neither cafe was it ever pretended that there was any danger of undue influence being used by his Majefty's minitters, as was now attempted to be fuggefted. Another confideration that tended to prove the abfolute impracticabjlity of reforting to trial by jury, was the 3 L 2

grea

great fcope of the evidence, that in gene-ral it would be neceflary to produce on fuch occafions; and faid, by way of example, that in the cafe of Sir Thomas Rumbold, and alfo in that of Mr. Haftings, the evidence was fo various and voJuminous, that it was phyfically impoffi ble that any jury could have ftrength fufficient to go through it without retiring to reft, and without other refiefhment. As to the objection he had heard made against admitting the writings and correfpondences from the Eaft Indies to be taken as evidence, he apprehended that gentlemen were not fufficiently acquainted with that, part of the subject. They seemed to think that all writings whatfoever, coming from that country were intended by the Act of Parliament to have a full validity given to them as evidence in the newly cftablifhed Court; but this was by no means the cafe, for every paper was liable to be fcrutinized, according to the common rules, as well of admiffibility as of credibility, that were used with refpect to other witneffes; and if any fhould appear to come from a perfon prejudiced or interefted in the event of the trial, it would be Keld as wholly inadmiffible, or if it thould be inconfiftent, contradictory, and improbable, it would then be confidered as incredible. It was no new thing, he faid, to bring the correfpondence of the Company's fuvants as evidence into a court of justice, for the act of 1773 had made a provifion for the purpofe, making fuch papers competent evidence; and indeed, in moft inftances, it would be impoffible to inveftigate a complaint from that country without recurring to fuch fources of information; and befides the other arguments that tended to vindicate the departure from the trial by jury in this inftance, the neceffity of admitting fuch evidence was a very fong one; for however expedient it might be, in fome cafes, to adopt new rules of evidence, it would be extremely dangerous and improper, to habituate the minds of the common juries of the country to fuch a change; becaufe being in certain peculiar cafes, used to look upon that as evidence which the peculiarity of the cafe alone rendered fo, they might in cafes where no fuch peculiarity exifted, be inclined to receive fimilar impreffions from fimilar documents, and by that means the rules of evidence might become fluctuating and iiable to change; athing to the full as dangerous, and as neceffary to guard againft, as any change in the other rms of judicature could poffibly be.

As to the novelty that was imputed to this departure from the eftablished practice of trial by jury, he faid no fuch novelty did exift; for it had long fince been adopted both in the army and navy, and no perfon ever pretended that any precedent was likely to flow from the inftitution of naval and military courts martial, dangerous to the conftitution and laws of the country.

Laft of all, he came to that part of the fubject which related to the oath required from perfons returning from India, to afcertain the amount of their acquisitions 'there. On this head, he frankly own,1, he had not completely made up his mind; but having intended to bring the subject before the Houfe in a fhort time, he had been in the habit of confidering it attentively, and thould, in a few days, come to a fettled opinion concerning it. The reafon of his doubt was the variety of fentiments he had met with in letters from India, fome of which contained an approbation of the refinition, while others feverely condemned it. It would however anfwer part of the objections ftated by the Hon. Gentleman, to fhew that all of them, at least, were not perfectly well-founded, and that the inftitution was not liable to the whole of the obloquy that was thrown upon it. The Hon. Gentleman had cited an example, drawn from the cafe of his own colleague in the administration of Bengal, and had faid, that if the queftion had been put to that gentleman, whether he fhould be fatisfied on his return to England, to be called upon to take an oath of the nature preferibed by the prefent fyftem? he thought it highly probable that he would anfwer in the negative. The Hon. Gentleman had flated, that if the fervices of his faid colleague were equal to his rewards, they must have been great indeed; which words could have no other implication, than that his rewards were greater than his fervices merited. Was not this then, he asked, a strong argument in favour of the oath? For was it not as much as to fay, that if the oath had at that time been necellary, the gentleman alluded to, having it before his eyes, and having alfo objections to taking it as his circumftances then stood, would have act cd in fuch a manner as to have enabled himself to take it with a fafe confcience. By this means the evil would have been prevented, and this prevention was the chief object of inftituting the oath; for many perfons, though they might be inclined to fubmit to thofe temptations

« ПредишнаНапред »