Front Page Titles (by Subject) APPENDIX C.: BRITISH INDIA—JURY SYSTEM. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
APPENDIX C.: BRITISH INDIA—JURY SYSTEM. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
BRITISH INDIA—JURY SYSTEM.
In consequence of the good countenance shown last session in both Houses, when the subject of juries was incidentally brought forward, Mr. Wynn appears to have set himself to work at something—I could not exactly discover what. But there is much virtue in a beginning, and as I know Mr. Wynn to have been seeking information on the subject from the very best authority he could resort to—Sir A. Johnstone—I am full of hopes, trusting as I do, that you will keep your eye on the thing in the House, so that the Indian minister may be encouraged as well as watched.
I would indeed it were possible to send out Sir A. Johnstone to India, to introduce native juries there, as he so well effected it in Ceylon—for I confess I have many fears for the result of the experiment on account of the unfriendly hands to which it must necessarily be entrusted. What judge from Scotland to Bengal, “Usque Auroram ad Gangem,” ever cordially loved to divide his power with a jury? But in this case, we have not to contend with that proclivity alone, or in its simplest form. The king’s judges in the royal courts at the three great cities (Calcutta, Madras, and Bombay), will probably not much like having to consult with juries henceforth in civil (quasi-criminal) cases, in making assessment of damages—or where the parties desire a jury-verdict in praference to a bench-verdict. But the king’s judges have never been accustomed to act in criminal matters without juries, and they will rather feel favourable than otherwise to the admission of natives and half-castes.
The danger I fear is from the Company’s servants, who will have the sole conduct of the experiment in the provincial courts, by far the most important part of it, inasmuch as there it is wholly new to the people as to the judges; and is in fact a politic and scarcely perceptible beginning—of teaching our subjects to take a share in self-government, and of giving them an interest in the support of our foreign regime. To this I have no sort of doubt the Company and their servants will bear no good-will: it is not in the nature of things they should, if we consider who they are, and how chosen, that represent the Company in England—and who they are, and how brought up, as a separate caste from early youth, that compose the servants abroad, and are the monopolisers of all office and power there:—rising from the bottom to the top of a list of placemen, all aspiring to hoard and bring away all they can; bound to India by no sympathies—no permanency—no root in the land.
In the infancy of the meditated native juries, everything will depend upon the provincial judges. But where shall we look for a liberal philanthropic mind like Sir A. Johnstone, auxious that the thing should work well; careful in selecting—in instructing—in discreetly leading the inexperienced and ill-qualified jurors in the early stages of the institution? The native officers of our Sepoys have all risen from the ranks—are all taken from the humble elasses of society—métayers, dairyness, and soldiers’ children; but they have a plain and simple code of laws to deal with (not simpler than might easily be compiled for all ordinary issues, civil or criminal, fit for our proposed juries;) and they are instructed discreetly in the law, and have the evidence expounded by a European judge-advocate in general courts-martial—and by a European officer of their regiment completely skilled in minor courts. In consequence, though the entire administration of military law has been left in the hands of these native juries, as they may be called, even in the most ticklish times, they are scarcely ever known to do wrong. This has prevailed for sixty or seventy years! From the same classes, or better classes of society, the civil jurors may be taken; and the thing, if not loaded with absurd and revolting oaths too much, may be converted into a mark of distinction. But all this depends on the Company’s servants! The European officers of the Sepoys are also Company’s servants: but mark the difference of position as to checks. The European judge-advocate is selected for his talents out of a mass of candidates, all quick to discern his faults, and aspire to his shoes, if he neglect his duty. The court in which he and his native jurors sit is an open tribunal—white and black auditors frequent it. The native officers are commissioned—they must be treated as gentlemen; not bullied or put down with contempt. The proceedings are all recorded (saving the opinions of individuals, which are strictly secrets) they must go up to a division commanding officer, who may be of the king’s service,—to the judge-advocate to report on—to the commander-in-chief (who is always a king’s officer,) and therefore of a different corps from the original European judge. Finally, they may be handed up to government, and are published invariably in general orders, with the comments of the commander on them, to every regiment. But what checks are provided for the conduct of a Company’s civil servant? What shall efficiently controul exaction and tyranny, if he be capable of such? What shall keep down his ill-will to the jury system? his jealousy of the partial eclipse which his autocracy in the province must suffer? his habitual insolence of office? the white man’s—the rich man’s—the civil servant’s feelings, towards the black—the poor—the “low” man? Nothing but the feeble, formal, “regular channel” controul of official superiors, distant many degrees of latitude, or longitude perhaps—and all belonging to the same corps with the supposed offender. There is no vicinage of his equals—no community to stand in awe of, no one independent of his direct authority or indirect influence! Yes: the tribunals are open—open to the poverty-blasted, ignorant, timid black man, who ventures to wage such a war with the great man of his district:—“open”—but with every stage loaded with costs, stamps, and law-taxation, greater in proportion to the extreme indigence of our well-ground eastern subjects, than those of England,—and more remote, more inaccessible, than even our courts.
If no better checks than all this be provided, the attempt to put natives on juries will utterly fail. I know of but one Company’s judge in India to whom I would commit such a charge with full confidence, * * * * *. But he is of the “liberal faction,” and not in favour with his brethren. What, then, is to be done to prevent this excellently meant measure from miscarrying? There is but one efficacious remedy, and to that must we come at last in India as at home—publicity! Shame and intimidation are its offspring, and bodies or classes of men, I fear, in all countries, must be governed by these, and by nothing else so effectually. None are so powerfully and beneficially acted on by “publicity” and its consequences, as judges—to none is it more happily applicable. It is not the mere opening the doors of a court, at which few attend, and fewer still can interpose on the spot to resist abuse: it is the reporting of those present, to those absent—by those who have quick ears and ready memories or glib pens—to those at a distance, who are capable of appreciating and judging, and acting, if need be. The press—the free and anonymous comments of the press, can alone do this, and terrify evildoers. Let its abuse be subject to all the severity of your libel laws; superadd thereon, the six-act penalty of deportation, if you will: but let the penalties be inflicted after trial, with or even without a jury, so it be done judicially—done after hearing and determining in public; and not vindictively, privately, summarily, and by the executive power—by the fellow-servants of the offended functionary.
The press, to do any good in a country like India, must be anonymous—1st, Because who will dare openly to “bell the cat,” in a country where the fortunes of every man depend on the nostril breath of the despots and their servants, to whom England has delivered over India, lease-bound hand and foot. Secondly, Because there would be a violation of decorum in a servant criticising his master, an inferior his superior’s misdeeds, which is entirely saved by the anonymousness of the criticism: separating effectually the question of “who writes,” from that of “what is written?” Now at this unhappy moment in India, a man may not report in the newspapers the verbatim completed proceedings of a court of justice: still less make any comments on what passes. Very recently, Mr. * * * *, the editor of a Bombay newspaper, has been transported at a few days notice to England (via China)—ruined, in short, for reporting what he offered to prove, by multitudes of witnesses on oath, to be a literal and true report of what passed in court. He was not allowed to do this, but was required by Governor * * * * and his council, at the instigation of the King’s judges—* * * * and * * * *,—to admit that what he had published was false, or to be ruined. He was accordingly transported, the judges not choosing to exert their power, in their own court, of raising the question of contempt. Such are the facts: they speak for themselves.
If such be the system approved of at home and to be acted on abroad, of what avail can it be to make judicial reforms of any sort? but, in particular, what rational hope can there be of effecting so great a change as that of admitting the natives of India to take any real share in the administration of justice among themselves? But we shall be told, if the press be set free to touch on judicial matters, who shall restrain it in politics, or hinder it from becoming the vehicle of safe complaint against oppression? As to the latter, what honest man or honest government, considering itself the equal protector of all its subjects, would wish to shut up any avenue by which the complaints of the weak and the wronged may possibly reach its ear, or at least intimidate the wrongdoer? But in respect to political discussion through the press, this very Governor himself has admitted, as you may see in the Oriental Herald, that there is not a shadow of danger in respect to the natives. And most true it is, that not one in a million is capable of comprehending the most common discussions on politics, though able enough to understand the use of publishing their complaints aloud. It is for the sake of keeping down the Europeans and half-castes, and of keeping up the arbitrary system of the Company, and gratifying the haughtiness and official insolence of the privileged caste, that the authorities in Leadenhall-street and in India, to a man, oppose anything like freedom of opinion. They feel, perhaps, that the Company could not long stand against the force of public opinion, and are acting in natural self-defence.
Are you aware, that in India there are no institutions, no bodies, no corporations,—no two men, in short, who have a right to lay their heads together, and petition the government, using the plural we? A single individual may no doubt “bell the cat,” if he please, but all meetings are as strictly forbidden, as the use of types or expurgated books is prohibited even to Europeans! In the old slave colonies of England, or the United States, where the state of society is so fearfully delicate, there are no laws against the press generally: but woe to the printer or editor who should use his, to excite the slaves to revolt, or even run hard against the vitiated feelings of the slave-owning majority! If he did not starve for want of congenial readers, woe to him if he should come before an infuriated jury of overseers and slaveattorneys, on an easily trumped-up indictment for seditious libel! Can we not, then, in India, a handful as we are of whites, trust sufficiently to the “esprit de corps,” and the sense of common safety, to deter an Editor (if want of subscribers could not cool the Quixote) from exciting revolt, and persuading the native to cut his own and his fellow Europeans’ throats?
But I shall not further pursue this branch of the argument: my object is mainly to show, that without a press, without institutions, without rights of person or property, without the privilege of using freely their skill, industry, and capital, without safe and organized means of complaint or petition,—Europeans, who in India are as yet the only considerable class capable of estimating and influencing the conduct of public men, are powerless and helpless; and that the introduction of jury-trial, or any other improvement that depends materially on the conduct of those who are to set the machine in motion, to be other than a mockery and waste of time, must be accompanied by some safe and easy means of embodying public opinion on the spot, where alone it can have that force in reacting on the judges, of which delay and distance so effectually deprive the injured when it has to travel hither.
* * * * *
To Jeremy Bentham, Esq.