He concluded with seconding the motion, which was carried unanimously. Debate on Mr. Dempster's Motion for a Bill to explain and amend the East India Judicature Act.] March 19. Mr. Dempster begged leave to fix, for some moments, the attention of the House to what he considered as most important defects in the East India Acts of 1786. He contended, that as trials by jury were the birth-right of every British subject, no man, no assembly had any right to take away such a privilege, unless by the consent, and on the application of the parties themselves; and he declared it to be no justification whatever for that House to assert, that it gave the parties so disfranchised a better thing in lieu of that which they took away. He reprobated the ground of necessity as a plea for the abolition of trial by jury in the case in question, and asserted, that no such necessity could be proved to have existed; the only two East India causes, of late years tried, having been decided by a jury, and these were the case of the Armenians against governor Verelst, and the case of lord Pigot; in the former, large damages had been obtained; and in the latter, damages had also been given. Of the competency of Juries to try these causes, no doubt had been suggested, and the issue proved that they were perfectly competent for the purpose. So far from experience authorizing the assertion that it was on the ground of absolute necessity that the British subjects in India were deprived of their right to trial by jury, experience had established the very reverse of the assertion. Having argued the point, he proceeded to mention the other particulars in which it would, in his opinion, be proper to alter the last act; and first, he stated the extension of the judicature instituted in Bengal to Madras. The institution of the Supreme Court of Judicature, by separating the executive from the judicial departments, had been attended with the happiest consequences to the whole province of Bengal, and to the town of Calcutta more especially; and therefore he saw no reason why the same essential benefits might not be extended to Madras, where, he had no manner of doubt, the institution of a Supreme Court would prove eminently useful. A third regulation necessary, was one respecting the judges of that Supreme Court, whose vacancy ought to be supplied, whenever a vacancy happened, whether temporary or permanent, without delay. The reason for this was, that ever since the recall of sir Elijah Impey, the whole weight of the business of the Supreme Court had fallen on the shoulders of a single judge. A fourth alteration would be the total repeal of a clause, authorizing the governorgeneral to seize any person merely suspected of holding any correspondence with any princes, rajahs, zemindars, or governors of factories, or any correspondence detrimental to the general interest of the Company. Mr. Dempster read this clause to the House, to show the extensive wording of it, and the mischiefs it might lead to, and said it was wholly subversive of the Habeas Corpus Act, and that he would no more give his consent to such a law, than to a law legalizing impressing; on the contrary, he saw not why a Habeas Corpus Act might not be passed to have operation in India. After stating these and other particulars concerning the judicial parts of the acts, he came to the political part, and declared, he thought some alteration might there be made much to the security of the liberties of the British subjects in India, and equally to the advantage of the Company. It was a maxim, not to be controverted, that it was impossible for that govern ment to be a good one, in which the people were not allowed to have any share. The government of India, while the affairs managed there were merely the affairs of a trading company, might be sufficiently well conducted by a governor and council; but the case was widely different in the government of an empire. He was of opinion, that the change of circumstances in India pointed out the necessity for a change of government, and that a much better government than the present might be successfully adopted. Suppose, for instance, a government in the nature of a vice-royalty were instituted, and a viceroy was to be appointed, with a privy council to advise with in matters of government; he might also have a legislative council, and something like representation be given to India, as the capital towns and districts might be empowered to elect and send deputies. Such a house of representation might be empowered to receive petitions from the natives, and to grant redress. That would give the natives a degree of confidence in the British Government, hitherto unknown in India. He complained of the clause of the existing | first put this question, he had grounded Act taking away from the Company the it on the reason of the case: but he came right of compounding with their servants, there armed with another sort of authowhen in arrear, or under censure. He also rity, the authority of the Act of 1786, the proposed to abolish all monopolies, particu- present existing law, which admitted the larly that of opium, declaring that he had fundamental capacity of juries, which left ample proof of the injurious tendency of the opinion, and gave it to the prosecutor, that monopoly. In conclusion Mr. Demp- viz. to the Attorney-general, who was exster moved, "That an Act, made in the pressly enabled by the Act to try any of 24th of his present Majesty, intituled, An the causes as he thought proper, either in Act for the better regulation and manage- the Court of King's-bench, or before the ment of the affairs of the East India Com- new tribunal. The supposed incompepany, and of the British possessions in tence of juries was therefore given up. It India, and for establishing a Court of Ju- was, however, a dangerous power to be dicature for the more speedy and effectual left with the prosecutor, as it was neither trial of persons accused of offences com- more nor less than a power to allow or mitted in the East Indies,' might be read;" take away his fellow-subject's right to be and the same was read accordingly.-He tried by his country. He asked by what then moved, "That an Act, made in the principle was the Attorney-general to be last session, intituled, An Act for the guided in preferring one tribunal to anofarther regulation of the trial of persons ther? How was he to distinguish the accused of certain offences committed in cases that were fit for the King's-bench the East Indies, for repealing so much of from those that were fit for the new trian Act, made in the 24th of his present bunal? Was the new judicature only to Majesty, intituled, An Act for the better be resorted to in cases of special difficulty regulation and management of the affairs of or importance? If so, the consequence the East India Company, and of the British was absurd. In cases of inferior difficulty possessions in India, and for establishing a or magnitude, they tried in the Court of Court of Judicature for the more speedy King's-bench; and then the party, if he and effectual trial of persons accused of thought himself injured, might have varioffences committed in the East Indies,' as ous remedies against error in the proceedrequires the servants of the East India ings, or in the judgment, or even against Company to deliver inventories of their the verdict, by applying for a new trial: estates and effects; for rendering the laws whereas if the case were specially difficult more effectual against persons unlawfully or important, they carried it to a tribunal resorting to the East Indies; and for the whose judgment would be final and conmore easy proof in certain cases of deeds clusive; since, though there was a right of and writings executed in Great Britain moving the cause by appeal, or by writ of or India,' might be read;" and the same error from the Court of King's-bench, being read accordingly, he next moved, there was no right of appeal whatever "That leave be given to bring in a Bill from the new tribunal. Another fault he to explain and amend the said Acts." had to find with the new judicature was, that it was at once original and final, which was of itself contrary to the principles of English law; and they made it so in cases, the difficulty and importance of which were most likely to perplex the judgment of the Court, and which particularly required that the judgment should be open to re-consideration in some higher tribunal. Mr. Francis declared, that he wished to know whether the institution of a court, with original and final jurisdiction, was conformable to the principles of English jurisprudence; and he called upon the gentlemen of the law to declare themselves explicitly. The authors of the measure, he said, had seen the absurdity and danger of leaving the judgment to be determined by four persons out of seven, Mr. Francis begged leave to state to the House certain objections and difficulties arising out of the Bills themselves, and which he had on a former occasion mentioned to the learned gentleman over against him, but had received no answer to them. He had before asked, whether a jury was not capable, or could not be made capable of trying acts of extortion, or other misdemeanors, committed in India? but no learned gentleman had ventured to affirm, that a jury neither was capable, nor by any means could be made capable. The question was important, since nothing short of that affirmation could support the institution of the new tribunal, which was said to be founded on absolute necessity, and to admit of no alternative. When he had and had therefore increased the number | mitted in India was absolutely necessary, to ten; but with that increase, in order and that some years since all sides of the to obtain a judgment, they had introduced House seemed to be of that opinion. The a new and dangerous principle of decision, case of the Armenians was certainly a unknown in the administration of justice very hard one on Mr. Verelst; and he, in England, viz. by a casting voice; that though counsel against him, thought his was, they had borrowed the principle of own case weak, for those persons had decision which belonged to a deliberative, traded under English influence and conor popular assembly, and carried it into a nexion, in arms, ammunition, &c. to the court of justice. If judgment was to be prejudice of the Company, and perhaps given by a majority, he contended that of the state; no circumstances of any it ought to be a real, and not a fictitious considerable ill usage appeared in bringing majority, because nothing could be more them from Oude, and a verdict of 9000l. evident than that no judgment should be damages was given against Mr. Verelst, given but by a real preponderance of opi- which the Court considered very large, nions; whereas a casting voice was mere but thought it a delicate matter to set it power, and power had nothing to do with aside, except in a very outrageous case. judgment: power belonged only to exe- People's minds were inflamed against percution; it was executive, and not judicial. sons in power in India, and he doubted This was, he said, so true and acknow- whether the new jurisdiction would have ledged a principle, that if in any of the so very severely punished an offence courts in Westminster-hall the judges against the law committed by Mr. Verelst, were equally divided, there could be no probably, as he thought, in the execution judgment; in that case the laws supposed of his duty. With respect to lord Pigot's a person in possession of an equality of case, he observed, that all that part of it opinions on each side, and could have no which respected previous conspiracy and motive for saying that either of those equal corrupt design, in apprehending his perweights should prevail against the other. son, which the House believed when they Mr. Francis declared, he wished to see ordered the prosecution, neither was nor these various difficulties cleared up, and could be gone into, nor could any human that a Bill of such importance should not powers of mind and body have enabled be confirmed without explanation or de- the jury, without sleep or refreshment, to fence. The very great alterations they have gone through it. The evidence had made in the first Bill showed that the filled two quarto volumes, which it would authors of it were far from infallible: they take a week to read and digest; and had, when the Bill of 1784 was first in- therefore the imprisonment of his person, troduced, declared it to be a perfect meawithout lawful cause, was the only quessure they had nevertheless altered it ma- tion; and the defendants were punished terially in 1786; perhaps, therefore, it in proportion to that, and that trial lasted might appear that the second Bill was as very many hours. In such cases defenimperfect as the first had been confessed dants laboured under great disadvantage, to be. In their mind it was more imper- a court and jury were quite exhausted when fect, and instead of removing former diffi- their case came to be stated and proved, culties, it had produced a multitude of and half the jury, perhaps, asleep. Gennew ones. It persisted in the conclusion tlemen had now sufficiently experienced after the premises were abandoned. At the great intricacy and length of such first it introduced a new and dangerous cases; and could it be supposed that such innovation upon the ground of pretended cases were ever meant to be judged of by necessity, and it now adhered to the in- a jury, whose time of sitting in judgment novation, when the whole ground of ne- was only so long as a man could fast and cessity was renounced and given up; for keep up his attention? That tribunal, the these reasons, he seconded the motion for best ever devised for cases arising in a a new Bill, in the terms in which it was country which they themselves inhabit, drawn; though he meant not to pledge and are acquainted with the motives which himself to support, to their full extent, usually induce to act, or not act in partiall the arguments of the hon. mover. cular ways-where they understand the cases which come before them from their own habits and experience was but ill fitted for cases arising in a distant province, very particularly circumstanced, The Solicitor General remarked, that the two cases alluded to, had long ago satisfied his mind, that a peculiar jurisdiction for the trial of misdemeanors com and involving considerations, of which the general run of jurymen must be ignorant. One gentleman had asked, by what rule was it possible for the prosecutor to settle whether he would go on in the King'sbench, or before the new tribunal? The answer was, that he would be guided by the magnitude, intricacy, and length of the case-if it was apparently such as required many days investigation, it would go to the special tribunal; if it was within the compass of the time allotted to a jury, prosecutors would let it be speedily concluded. A jury, instead of that which it was, would be a very bad institution, had it not been provided that they should not separate, but deliver, in their verdict, the genuine impression which the evidence alone made upon their minds. He had put it to gentlemen from India, whether they would choose a power of dispersing to be given to juries, and put it in their power to read pamphlets and newspapers, and converse in taverns or ale-houses, while their honour and property were at stake, and they had disapproved of that liberty. Nothing, then, was left but to draft that jury, which must in some cases have the power of separating, from among those who must be presumed more fit to be trusted with it than the common run of mankind. With regard to the assertion that all subjects are tried for misdemeanors strictly by their peers, it certainly was not true; for the lords are tried for misdemeanors by common juries, as commoners are. It had been asked, was there such a thing as a criminal tribunal original and final? The gentleman who asked it could very easily answer, for he was going up to the House of Lords, whose tribunal was of this nature. Mr. Burke declared, that he entertained a profound respect for the information which the hon. and learned gentleman had it in his power to give, and he felt that great weight was due to his opinion. He could not, however, but observe, that poor, ignorant, unlettered laymen, like himself, had not, lately at least, derived any assistance from the hon. and learned gentleman in conducting the important prosecution in which they had been for some time engaged, and that the House had not paid any very great deference to the advice and judgment of the hon. and learned gentleman, when he had declared himself adverse to their proceedings against Mr. Hastings. Mr. Burke animadverted on the Solicitor-general's de claration, that a common jury, composed of common individuals, were not competent to decide upon cases of delinquency in India, likely to arise in future. He said, that much as he respected that House, he could not conceive, that the instant any man entered the doors of it, he became, as it were, gifted with a degree of knowledge and a fund of liberality superior to that possessed by people without doors. He hoped that, generally speaking, that House represented the understandings, as well as the individuals of the mass of people, and that there was nothing so distinguished in the intellects of members of Parliament, as to mark them out from their constituents, as the only proper persons to be trusted with the reputation and property of those who might hereafter be brought to trial for any part of their conduct in India. The hon. and learned gentleman, whom, from what he had said, he should hold himself entitled to consider as the author of the Act of 1786, had rested the justification of the Bill on experience, and not on the loose grounds of speculation and experiment. That was undoubtedly the true ground for any great measure to stand upon; but he should examine a little how far the experience referred to would warrant the inferences which the hon. and learned gentleman had drawn from it. With regard, then, to the trials alluded to by the hon. and learned gentleman; that between the Armenians and governor Verelst, and that in the case of the seizure of lord Pigot, they rather, in his mind, proved the competency of juries to try East India causes than any thing else. In the former, large damages (9000/.) had been given but then, perhaps, as the hon. and learned gentleman had found so much fault with the verdict, the jury were incompetent, and had mistaken the merits of the case. The judge also might have been equally mistaken in his declaration to the jury. Supposing that, however, to have been the fact, where would the hon. and learned gentleman look for competency to decide? Under the new Bill, men surely not more competent than a judge sitting in his own court in Westminster-hall, were to form the tribunal. Let the hon. and learned gentleman recollect, however, that if there really was any ground to complain of an improper decision in the cause of the Armenians and governor Verelst, that cause was a civil action for damages, and all civil ac tions for damages were left exactly where they were before, by the existing Act of 1786. The whole of the argument, therefore, which could be drawn out of the cause of governor Verelst, fell to the ground, and was perfectly inapplicable, as a justification of the new judicature. With regard to the other cause mentioned by the hon. and learned gentleman, that in respect to lord Pigot, it was clearly a criminal case, but he had never heard the verdict complained of. The public had, indeed, complained of the judgment, and that on the ground of the inadequate fine levied. As the hon. and learned gentleman had thought proper to infer, that the jury were half asleep before the trial was brought to a conclusion, he (Mr. Burke) trusted that it would not be straining the point too violently to suppose that the Act of 1786 had now a new feature. It was a specific against somnolency. It spoke to that House in clear and audible language. It said, "Sleep no more," in such emphatic terms, that from thenceforward he should imagine that such a phænomenon as a sleeping member of parliament would never be seen. He could scarcely now credit what his eyes had formerly beheld, and doubted whether he had been himself awake, when he had seen one member nodding in one part of the House, a second lolling at his length in sound but not quite silent somnolency in another, and a third, a fourth, a fifth, and so on, fast asleep in others. Whatever had happened, the whole House was hereafter to keep wide awake, let the hour of debate be protracted ever so long. Mr. Burke next resumed his inquiry into the great difference between members of Parliament and peers, and the individuals that usually composed the juries who heard and determined in the courts below. The hon. and learned gentleman, he observed, had said, that men who went to ale-houses and read pamphlets, were not fit to decide on cases of Indian delinquency. To be sure, members of parliament and peers did not usually go much to ale-houses, but then they went to taverns and coffee-houses; they drank wine at clubs of various descriptions: but generous wine, and good coffee, he supposed, were deemed excellent qualifications for the mind of a man likely to become a member of the new tribunal. Wine enlarged the understanding, and unlocked the dormant faculties of the soul. It made men liberal, and it made them eloquent. Coffee, on the other hand, cleared the head and purified the judgment. It must consequently enable men to see with precision and decide with wisdom. There was, therefore, something in the argument, that those who drank wine and coffee were better qualified to judge and determine than those who drank punch and beer, and such like beverage. But then the hon. and learned gentleman had stated another objection, and that was this: men who read pamphlets were not fit to sit as jurymen in causes of Indian delinquency. Pythagoras said to his disciples, abstine à verbis;' but he had never heard of such maxims as abstine à pennis,' or abstine à pamphlatis;' and he was afraid, that, so far from members of parliament being in that respect properly qualified, the only sure way to get a tribunal so as to meet the hon. and learned gentleman's definition, would be to choose no persons members but such as could neither write nor read. Mr. Burke contended, that the new judicature was infinitely the worst sort of jury that could be instituted, because it had one of the greatest objections belonging to it that could belong to any panel. The members of it were nominated by the minister, and it was known, soon after the commencement of every session, who they were. This, as gentlemen would see, must expose them to applications of every sort, and they all knew, as members, what sort of applications were made to them when personal questions were likely to be agitated in that House. A jury in the courts below, on the contrary, were unknown till the time they were sworn, and, for a variety of reasons, were not liable to previous application from the parties in whose cause they were to decide. He pressed this upon the consideration of the House, as a matter by no means immaterial or unimportant. next took notice of the clause in the Act of 1786, taking away from the Company all right to compound causes with their servants, and enlarged upon it as a matter highly prejudicial to the Company's interests, declaring that he looked upon compounding, in many cases that might possibly occur, as nothing more than taking five shillings in the pound, which, where the debt was large, was often a recovery of a considerable sum, and which, by being disallowed in future, could not but prove the cause of great loss to the He |