place, and very little as to their intent, if you believe that they had rubbed their faces and bodies with white powder to look like Europeans; but, as to the breaking and entry, there are some doubts, which nothing but full evidence can remove. They were caught, it has been fworn, on the terrace of a detached house inhabited by a Hindu, and built in the fashion of Bengal; and it is now believed, that they began with climbing into a small room, or recefs, communicating with a private apartment, and used for the purposes of a water-clofet in a Londonhouse, but enclosed by a breastwork of bricks, and open at the top, the nature of the place in this climate not admitting, without extreme inconvenience and even danger to the family, of such a covering as would exclude fresh air: the cornice over the door of the apartment was broken, together with part of the wall, either by accident in laying hold of it, or by defign to facilitate the afcent on the terrace, which was itself enclosed by a baluftrade. Although a terrace on a housetop, in the warm regions of Afia, has been immemorially confidered as an apartment of the house both for converfation in the evening and for flumber at night; although, like a varanda furrounded by rails or parapets, it is as much enclosed as the nature and design of it will allow; and although a nocturnal invasion either of a terrace or a varanda, in a country where doors and windows must be left open night and day, would occafion terror and generally be punished with instant death, if the affailed were better armed than the afsailant; yet, in favour of life, it may forcibly be urged, that the penal law of England ought not to be extended, by mere argument and analogy, to varandas and terraces; but whether the place, which has been defcribed, was actually a room in the house, and whether the prifoners broke and entered it with a felonious intent, will beft be determined by the petit jury; while the court will confider, whether an entry by night into fuch a place and with such a design be not as burglarious in the eye of our law as a mere descent by a chimney in England. As to the defence of the two watchmen, that they they were only discharging their duty, instead of violating it, the law will never fuffer itself to be infulted by fuch pretences; and, if it be proved, that VISHNURAM, (who attempted by the authority of the Company's badge to procure the release of his fon-in-law and the associate, and even gave reafon by his menaces to believe, that he meant to rescue them), knew of the felonious defign, you will confider him as an acceffory after the fact; or, as a principal in it, if he was constructively present by keeping guard near the house, while they broke and entered it. On this occafion I impute no blame to the two gentlemen, who act as high constables in Calcutta, except that they do not feem to have taken, as they certainly should have done, from the low natives, whom they employ, fufficient fecurity for their good behaviour and for the faithful discharge of their duty. 66 The Armenian, whom I mentioned under the head of perjury, being also charged with having forged the bond, to the due execution of which he pofitively swore after strong and repeated warnings by an interpreter of his own nation, the great question again rises, “ Whether "the modern statute, which makes forgery capital, extend, or not, to "these Indian territories." On the fulleft confideration, I think the negative fupported by stronger reasons than the affirmative: the statute in question feems to have been made on the spur of the time; its principal object was to support the paper-credit of England, which had just before been affected by forgeries of bank-notes; and it contains expreffions, which seem to indicate a local operation; the punishment, which it inflicts, goes beyond the law of nature, and the British laws appear to have been introduced into India by a charter preceding the statute, so far at least as to bring this country within the general rule. Nevertheless, I still think the question debatable: I fee it, as I lately told the fenior judge, who agrees with me, rather with the light of the rifing, than with that of the meridian, fun; and the learned argument of the judge, 气 judge, who differs from us, has rendered the point fufficiently doubtful, to make me wish for a decifion of it by the highest authority at the fountain-head of justice: yet the reafons urged on the oppofite fide fo far turn the scale, as to justify me in recommending an indictment on the statute of ELIZABETH, especially as a conviction on the modern statute would not at present be followed by execution; and if the person convicted should submit to a long imprisonment rather than exercife the power, which would be given him, of appealing to the king in council, it might end in his escaping any punishment, or in his being punished capitally at fo diftant a time, that the offence might be forgotten by the publick, and the great object of all penal statutes wholly fruftrated. Whenever it shall be my turn to addrefs you, gentlemen, I will never defift from recommending to your ferious attention the ftate of the gaol, the condition of the prisoners; the conduct of the gaoler and his fervants. The facility of efcaping from it has, I prefume, fince your memorial to the government on that subject, been wholly or nearly removed; but, even if the construction of the prison should render escapes easy, that would be a reason for the sheriff and his officers to increase their vigilance in proportion to its neceffity, instead of abating their diligence by violating positive, law: now I hold it violation of pofitive law to hamper any prifoners with irons before conviction, unless they hehave in an unruly manner, or by fome attempt or overt act induce a just suspicion of their intention to escape; nor ought any discretionary power to be left to such persons, as must have the care of gaols, who are always men without education, and might easily be tempted to fet a price on light fetters, or on a total exemption from them. VOL. III. I conclude I conclude with obferving, that, as three or four magiftrates cannot poffibly fecure the peace of this important capital, so it is morally impoffible, that all the petty offences committed in it from day to day can be legally and speedily punished, with due terror to other offenders, while two feffions only are holden in each year; and with expreffing my firm perfuafion, that, if any legislative provision should increase your trouble as grand jury-men, and that of the gentlemen, who serve on petit juries, you will all remember, that a degree of trouble is the price, which we pay for our common liberty; and that our common liberty, for which no price would be dear, will then only fall, when our conftitutional mode of trial fhall be fuperfeded by fummary jurifdictions, but will totter, when Englishmen of education and property shall cease, through their love of eafe, to show by their perfonal exertions a warm alacrity for the fupport of it. . CHARGE CHARGE TO THE GRAND JURY, AT CALCUTTA, JUNE 10, 1790. GENTLEMEN, I CAN CANNOT have the pleasure, which I expected, of informing you, that few prisoners are named in the calendar: fewer, indeed, appear in it, than we have lately feen at our feffions; and among the offences, with which they are charged, I perceive none, that seem to call for particular notice; none, that can here prove capital, except a cafe or two of felonious homicide and three or four of burglarious entries, on which I shall incidentally touch; and there certainly are none, on the nature and degrees of which you have not, on former occafions, received ample inftruction from charges delivered by my brethren or by myself. It might therefore feem, that no materials occur for a charge at the opening of the present feffion, and that it might be fufficient to difmifs you, with declaring my perfect confidence in your vigilant attention to the whole extent of your duty; but, since it has been usual to detain you a fhort time with the formal discourse, I take this opportunity of doing that, which has not, I believe, |