Front Page Titles (by Subject) A CHARGE, DELIVERED TO THE GRAND JURY OF THE ISLAND OF BOMBAY, ON THE 20 th OF JULY, 1811. - The Miscellaneous Works
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
A CHARGE, DELIVERED TO THE GRAND JURY OF THE ISLAND OF BOMBAY, ON THE 20 th OF JULY, 1811. - Sir James Mackintosh, The Miscellaneous Works 
The Miscellaneous Works. Three Volumes, complete in One. (New York: D. Appleton & Co., 1871).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
A CHARGE, DELIVERED TO THE GRAND JURY OF THE ISLAND OF BOMBAY, ON THE 20th OF JULY, 1811.
Gentlemen of the Grand Jury,
The present calendar is unfortunately remarkable for the number and enormity of crimes. To what cause we are to impute the very uncommon depravity which has, in various forms, during the last twelve months, appeared before this Court, it is difficult, and perhaps impossible, to determine. But the length of this calendar may probaby be, in a great measure, ascribed to the late commendable disuse of irregular punishment at the Office of Police: so that there may be not so much an increase of crimes as of regular trials.
To frame and maintain a system of police, warranted by law, vigorous enough for protection, and with sufficient legal restraints to afford a security against oppression, must be owned to be a matter of considerable difficulty in the crowded, mixed, and shifting population of a great Indian sea-port. It is no wonder, then, that there should be defects in our system, both in the efficacy of its regulations and in the legality of its principles. And this may be mentioned with more liberty, because these defects have originated long before the time of any one now in authority; and have rather, indeed, arisen from the operation of time and chance on human institutions, than from the fault of any individual. The subject has of late occupied much of my attention. Government have been pleased to permit me to lay my thoughts before them,—a permission of which I shall in a few days avail myself; and I hope that my diligent inquiry and long reflection may contribute somewhat to aid their judgment in the establishment of a police which may be legal, vigorous, and unoppressive.
In reviewing the administration of law in this place since I have presided here, two circumstances present themselves, which appear to deserve a public explanation.
The first relates to the principles adopted by the Court in cases of commercial insolvency.
In India, no law compels the equal distribution of the goods of an insolvent merchant: we have no system of bankrupt laws. The consequence is too well known. Every mercantile failure has produced a disreputable scramble, in which no individual could be blamed; because, if he were to forego his rights, they would not be sacrificed to equitable division, but to the claims of a competitor no better entitled than himself. A few have recovered all, and the rest have lost all. Nor was this the worst. Opulent commercial houses, either present, or well served by vigilant agents, almost always foresaw insolvency in such time as to secure themselves. But old officers, widows, and orphans in Europe, could know nothing of the decaying credit of their Indian bankers, and they had no agents but those bankers themselves: they, therefore, were the victims of every failure. The rich generally saved what was of little consequence to them, and the poor almost constantly lost their all. These scenes have frequently been witnessed in various parts of India: they have formerly occurred here. On the death of one unfortunate gentleman, since I have been here, the evil was rather dreaded than felt.
Soon after my arrival, I laid before the British merchants of this island a plan for the equal distribution of insolvent estates, of which accident then prevented the adoption. Since that time, the principle of the plan has been adopted in several cases of actual or of apprehended insolvency, by a conveyance of the whole estate to trustees, for the equal benefit of all the creditors. Some disposition to adopt similar arrangements appears of late to manifest itself in Europe. And certainly nothing can be better adapted to the present dark and unquiet condition of the commercial world. Wherever they are adopted early, they are likely to prevent bankruptcy. A very intelligent merchant justly observed to me, that, under such a system, the early disclosure of embarrassment would not be attended with that shame and danger which usually produce concealment and final ruin. In all cases, and at every period, such arrangements would limit the evils of bankruptcy to the least possible amount. It cannot, therefore, be matter of wonder that a court of justice should protect such a system with all the weight of their opinion, and to the utmost extent of their legal power.
I by no means presume to blame those creditors who, on the first proposal of this experiment, withheld their consent, and preferred the assertion of their legal rights. They had, I dare say, been ill used by their debtors, who might personally be entitled to no indulgence from them. It is too much to require of men, that, under the influence of cruel disappointment and very just resentment, they should estimate a plan of public utility in the same manner with a dispassionate and disinterested spectator. But experience and reflection will in time teach them, that, in seeking to gratify a just resentment against a culpable insolvent, they, in fact, direct their hostility against the unoffending and helpless part of their fellow-creditors.
One defect in this voluntary system of bankrupt laws must be owned to be considerable: it is protected by no penalties against the fraudulent concealment of property.—There is no substitute for such penalties, but the determined and vigilant integrity of trustees. I have, therefore, with pleasure, seen that duty undertaken by European gentlemen of character and station. Besides the great considerations of justice and humanity to the creditors, I will confess that I am gratified by the interference of English gentlemen to prevent the fall of eminent or ancient commercial families among the natives of India.*
The second circumstance which I think myself now bound to explain, relates to the dispensation of penal law.
Since my arrival here, in May, 1804, the punishment of death has not been inflicted by this Court. Now, the population subject to our jurisdiction, either locally or personally, cannot be estimated at less than two hundred thousand persons. Whether any evil consequence has yet arisen from so unusual,—and in the British dominions unexampled,—a circumstance as the disuse of capital punishment, for so long a period as seven years, among a population so considerable, is a question which you are entitled to ask, and to which I have the means of affording you a satisfactory answer.
The criminal records go back to the year 1756. From May, 1756, to May, 1763, the capital convictions amounted to one hundred and forty-one: and the executions were forty-seven. The annual average of persons who suffered death was almost seven; and the annual average of capital crimes ascertained to have been perpetrated was nearly twenty. From May, 1804, to May, 1811, there have been one hundred and nine capital convictions. The annual average, therefore, of capital crimes, legally proved to have been perpetrated during that period, is between fifteen and sixteen. During this period there has been no capital execution. But as the population of this island has much more than doubled during the last fifty years, the annual average of capital convictions during the last seven years ought to have been forty, in order to show the same proportion of criminality with that of the first seven years. Between 1756 and 1763, the military force was comparatively small: a few factories or small ports only depended on this government. Between 1804 and 1811, five hundred European officers, and probably four thousand European soldiers, were scattered over extensive territories. Though honour and morality be powerful aids of law with respect to the first class, and military discipline with respect to the second, yet it might have been expected, as experience has proved, that the more violent enormities would be perpetrated by the European soldiery—uneducated and sometimes depraved as many of them must originally be,—often in a state of mischievous idleness,—commanding, in spite of all care, the means of intoxication, and corrupted by contempt for the feelings and rights of the natives of this country. If these circumstances be considered, it will appear that the capital crimes committed during the last seven years, with no capital execution, have, in proportion to the population, not been much more than a third of those committed in the first seven years, notwithstanding the infliction of death on forty-seven persons. The intermediate periods lead to the same results. The number of capital crimes in any one of these periods does not appear to be diminished either by the capital executions of the same period, or of that immediately preceding: they bear no assignable proportion to each other.
In the seven years immediately preceding the last, which were chiefly in the presidency of my learned predecessor, Sir William Syer, there was a remarkable diminution of capital punishments. The average fell from about four in each year, which was that of the seven years before Sir William Syer, to somewhat less than two in each year. Yet the capital convictions were diminished about one-third.
“The punishment of death is principally intended to prevent the more violent and atrocious crimes. From May, 1797, there were eighteen convictions for murder, of which I omit two, as of a very particular kind. In that period there were twelve capital executions. From May, 1804, to May, 1811, there were six convictions for murder,* omitting one which was considered by the jury as in substance a case of manslaughter with some aggravation. The murders in the former period were, therefore, very nearly as three to one to those in the latter, in which no capital punishment was inflicted. From the number of convictions, I of course exclude those cases where the prisoner escaped; whether he owed his safety to defective proof of his guilt, or to a legal objection. This cannot affect the justness of a comparative estimate, because the proportion of criminals who escape on legal objections before courts of the same law, must, in any long period, be nearly the same. But if the two cases,—one where a formal verdict of murder, with a recommendation to mercy, was intended to represent an aggravated manslaughter; and the other of a man who escaped by a repugnancy in the indictment, where, however, the facts were more near manslaughter than murder,—be added, then the murders of the last seven years will be eight, while those of the former seven years will be sixteen.
“This small experiment has, therefore, been made without any diminution of the security of the lives and properties of men. Two hundred thousand men have been governed for seven years without a capital punishment, and without any increase of crimes. If any experience has been acquired, it has been safely and innocently gained. It was, indeed, impossible that the trial could ever have done harm. It was made on no avowed principle of impunity or even lenity. It was in its nature gradual, subject to cautious reconsideration in every new instance, and easily capable of being altogether changed on the least appearance of danger. Though the general result be rather remarkable, yet the usual maxims which regulate judicial discretion have in a very great majority of cases been pursued. The instances of deviation from those maxims scarcely amount to a twentieth of the whole convictions.
I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as a mere modification of the right of self-defence, which may as justly be exercised in deterring from attack, as in repelling it. I abstain from the discussions in which benevolent and enlightened men have, on more sober principles, endeavoured to show the wisdom of, at least, confining the punishment of death to the highest class of crimes. I do not even presume in this place to give an opinion regarding the attempt which has been made by one* whom I consider as among the wisest and most virtuous men of the present age, to render the letter of our penal law more conformable to its practice. My only object is to show that no evil has hitherto resulted from the exercise of judicial discretion in this Court. I speak with the less reserve, because the present sessions are likely to afford a test which will determine whether I have been actuated by weakness or by firmness,—by fantastic scruples and irrational feelings, or by a calm and steady view to what appeared to me the highest interests of society.†
I have been induced to make these explanations by the probability of this being the last time of my addressing a grand jury from this place. His Majesty has been graciously pleased to approve of my return to Great Britain, which the state of my health has for some time rendered very desirable. It is therefore probable, though not certain, that I may begin my voyage before the next sessions.
In that case, Gentlemen, I now have the honour to take my leave of you, with those serious thoughts that naturally arise at the close of every great division of human life,—with the most ardent and unmixed wishes for the welfare of the community with which I have been for so many years connected by an honourable tie,—and with thanks to you, Gentlemen, for the assistance which many of you have often afforded me in the discharge of duties, which are necessary, indeed, and sacred, but which, to a single judge, in a recent court, and small society, are peculiarly arduous, invidious, and painful.
[* ] . . . “I am persuaded that your feelings would have entirely accorded with mine; convinced that, both as jurors and as private gentlemen, you will always consider yourselves as intrusted, in this remote region of the earth, with the honour of that beloved country, which, I trust, becomes more dear to you, as I am sure it does to me, during every now moment of absence; that, in your intercourse with each other as well as with the natives of India, you will keep unspotted the ancient character of the British nation,—renowned in every age, and in no age more than the present, for valour, for justice, for humanity, and generosity,—for every virtue which supports, as well as for every talent and accomplishment which adorns human society.”—Charge, 21st July, 1805.—Ed.
[* ] . . . “The truth seems to be, as I observed to you on a former occasion, that the natives of India, though incapable of the crimes which arise from violent passions, are, beyond every other people of the earth, addicted to those vices which proceed from the weakness of natural feeling, and the almost total absence of moral restraint. This observation may, in a great measure, account for that most aggravated species of child-murder which prevails among them. They are not actively cruel; but they are utterly insensible. They have less ferocity, perhaps, than most other nations; but they have still less compassion. Among them, therefore, infancy has lost its natural shield. The paltry temptation of getting possession of the few gold and silver ornaments, with which parents in this country load their infants, seems sufficient to lead these timid and mild beings to destroy a child without pity, without anger, without fear, without remorse, with little apprehension of punishment, and with no apparent shame on detection.”—Charge, 19th April, 1806.—Ed.
[* ] Sir Samuel Romilly.—Ed.
[† ] Alluding to the impending trial of a native artillery-man for murder, who was eventually executed.—Ed.