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.
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.
These juries would prove the Magna Charta, the palladium, and true
security of Indian liberty and property, against the despotism and
extortion of their foreign government. And it evidently appears that the
virtue of these juries, (as being, at one and the same time, truly
effectual to the subject, and perfectly safe to the sovereign,) entirely
depends upon the circumstance, of completely excluding the Company and
her servants, from the smallest participation in the executive powers of
government. But the efficacy of these juries, and of other inferior
institutions made through the supreme controuling power, being once felt
and known, would speedily induce the natives to purchase perpetual
property in lands: seeing they would perceive themselves thoroughly
secured in the produce of those lands. And this, being divulged abroad,
would draw the inhabitants of the neighbouring countries to the standard
of Britain; together with their wealth, and industry. By which means the
British dominion in India, which, at present is, through oppression and
consequent famine, in a great measure deserted and depopulated, would
again be completely peopled and cultivated: arts, manufactures, and
commerce would soon be restored to their former state; nay, they would
be extended to a degree far superior: and these countries would, of
course, be enabled to richly repay Britain for the blessings conferred
by her, of perfect security in liberty and property; blessings, never
before known in India.
And all this may be effected by means of that intermediate supreme
controuling power: which would, not only create, but preserve, the full
and vigorous efficacy of all these institutions, in the subordinate
dominions. Whereas, if it was even possible, (though indeed it is
morally impossible,) to institute, by any temporary means, all these
powers, forms, rules, and regulations in those dominions, yet is it
evidently certain that, so soon as these temporary means were withdrawn,
the virtue and efficacy of all these institutions would immediately
vanish, and be suppressed by the power of the executive government;
which, from the nature of things, must unavoidably be, either despotic
over the native subjects, or cannot exist at all.
But this same controuling power, as it would, on the one hand, by its
fixed residence in the immediate neighbourhood, perpetually preserve the
action and motion of all these institutions, like to a power ever
present to wind up the springs of the machine; and, so, would check all
the bad effects of that naturally necessary despotism in executive
government: so would it, on the other hand, effectually support the
power and authority of that executive government; and prevent its being
encroached on, by an over exertion of the privileges conferred on the
subject. For, on this side too, there is a danger; which will be readily
comprehended, by those who consider the nature of government; and, at
same time, the disposition of human nature. But all danger, of
preponderating either scale, would be prevented, by the vicinity of the
controuling power: which, holding the balance in its hands, and nicely
diminishing from one, or adding to the other scale, would ever preserve
a just equilibrium, betwixt the liberty of the subject, and the power of
government.
Nor would the institution of new regulations be the only means, in the
hands of the controuling power, of preventing the dangerous over
exertion of privilege: it would likewise possess the instantaneous power
of seizing, or otherwise of ordering to its own residence, all such
persons as should prove over troublesome, or dangerous to the due
authority of executive government. For, though it would be extremely
absurd to trust a power of this nature, immediately in the hands of
executive government; which would, infallibly, employ it to its own
worst purposes: yet might such power be safely trusted to this
controuling government; which could not have the same motives to abuse
it.
Nevertheless, we do not mean that this, and all these other powers,
should be unlimitedly confided to this controuling deputation: we still
preserve a check over it, in the national government. And a most
effectual check too; by means of the beforementioned copies of
registers, immediately transmitted to Britain, from the subordinates; as
likewise by its own minutes, accounts, and registers.
So that here would be a regular gradation of effectual political checks.
The privilege of juries, and other institutions in the subordinate
dominions, being preserved in vigorous action, by the influence of the
intermediate controuling power, would prove an effectual check on the
despotism or extortion of executive government; and would thus
completely secure the liberty and property of the subject. And the same
influence of the controuling power would sufficiently check the
luxuriancy of privilege; and support the power of government; thus
preserving an exact poise betwixt both. Whilst the sovereign, at a
distance, could deliberately and effectually watch the hand that trimmed
the scales.