CHARGE

TO THE

GRAND JURY,

AT CALCUTTA, JUNE 10, 1785.

GENTLEMEN,

WHEN I first addreffed a Grand Jury of Calcutta, too soon after

my

arrival in this country for any diftinct idea to be formed of all its inhabitants, the small number of prisoners, which, to my infinite joy, appeared in the calendar, gave me an opportunity of speaking at large on the institution of this court, and the principles of criminal justice. It is my turn to address you at the opening of the present feffion; but I have not, unfortunately, the fame reason to rejoice, nor the fame excufe for expatiating on general topicks: I may, nevertheless, without the impropriety of detaining you too long, touch on one or two fubjects, which I have much at heart, and on which I cannot but flatter myself with a hope of

your concurrence.

If I may justly, as I do fincerely, conclude from my own observation at former feffions, that the Grand Juries of this capital will deferve the praise of intelligence and moderation, vigilance and humanity, I must be

perfuaded,

perfuaded, that you, Gentlemen, have little need of instruction in the discharge of your important duty, and I confidently leave with you the few perfons, who are, I fee, imprisoned under accufations of petty crimes; nor is it either expedient or becoming to point at particular cafes, of which I have no official knowledge.

One cafe, which has come regularly before me as a justice of the peace, concerning the death of a flave girl, whom her master had beaten, I think it my duty to mention more at large; leaving to you the determination on facts from a view of all the circumftances, and declaring only my opinion of the law. A master may legally correct his fervant with moderation, and with a view to his amendment; nor, if the fervant thus corrected fhould die by fome misfortune unforeseen, and unlikely to happen, would the mafter be guilty of any crime; but if the correction be immoderate, exceffive, unreasonable, cruel, the party may have, if he live, a reparation in damages; or, if he die, the master will be guilty of manslaughter or of murder, according to the circumstances; of manslaughter, if he gave the fatal blow in a sudden burst of passion, after violent provocation, with a weapon not likely to kill; of murder, if he had full time for deliberation and coolness of blood; and that, whether he intended to destroy life, or only to chastise immoderately; for the true fenfe of malice, to conftitute this horrible crime, is MALIGNITY of heart, or a difpofition to do mischief, which may be ascertained by comparing the fault with the correction; and the age and condition of the person stricken, with the force of the striker, and the danger of the inftrument ufed by him. It is hardly needful to remark, that, in such cases, a servant and a slave, if fuch a relation be known to our modern law, ftand precisely on the fame ground; as a lord, in feudal times, might indisputably have been convicted of murder for killing his villain or his neife.

In the present cafe, you will hear the witnesses on one fide only; and it is recommended by great lawyers, left enormous crimes fhould be fmothered without a trial, that Grand Juries find fuch bills, as their confciences oblige them to find at all, for the highest degree in the fcale, that the evidence fairly fupports, leaving it to the Petty Jury, under the direction of the Court, in questions of law, either to hold the prisoner guiltless, or to ascertain the precise measure of his guilt by their verdict; but you are not abfolutely bound to follow this practice: you are bound to find the whole truth, as nearly as you can; and if the evidence amount not, in your confcientious opinion, to murder, you may reject the bill for that crime, and find another for manflaughter; nor ought it ever to be forgotten, that the great rule which all should observe, from the petty juryman to the prince, is, to look on the crime and example with the eye of severity, but on the criminal, as far as poffible, with the eye of compaffion; fince it is the extremity of evil, fays lord Bacon, "When mercy has no commerce with misery:" yet it must be added, that mercy is due to the publick also, who may be great fufferers, if crimes actually committed escape unpunished.

Another cafe, Gentlemen, calls for your serious attention: a forgery has been committed, either by the person accused before me, or by his accufer; which involves, not only the common guilt of that crime, an intent to defraud another, but also a design to affect his personal rights in the highest degree, and to abuse the process of this court by rendering it fubfervient to the purpose of imprisoning a man, who stood in the way of others; and this attempt was to be forwarded by the basest fubornation of perjury: it is a contest between two brothers for a large eftate; both the accused and his accufer are Bráhmans of some rank, and have been active in oppofite interests; the low wretches, who forged the bond, have confeffed their act, which was done, they say, at the instigation of the accused Bráhman; who denies any knowledge

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of

of their perfons, and infists that his enemy must have engaged them to ruin him. Your fagacity may enable you to discover the truth; but even in this case, you must temper justice with lenity, nor suffer yourselves to be influenced by the odiousness of the offence; and in all cafes of forgery, permit me to recommend indictments for the mifdemefnor only; fince very strong arguments have been used, both at home and here, to prove that the rigour of our modern law in punishing that crime with death, cannot be legally extended to these provinces. give no decided opinion yet on that point, nor on another, which may be started, whether, if the crime under confideration be a capital felony in India, an indictment will alfo lie as at common law, fince it has been held that a felony merges or abforbs a misdemefnor; but I am prepared to deliver my fentiments, and will deliver them fully, at a proper time.

I

I turn from thefe cafes, with full confidence both in your justice and your benevolence, to a fubject which has greatly moved me, and on which the Grand Jury last summer prefented a strong address to the Court: I mean the condition of prisoners for debt in the jail of Calcutta. It is much to be lamented that no method has yet been devised by Chriftian nations to keep defendants within the reach of justice, but that of confinement in a common prifon, where bad habits are generally learned, and good ones generally discontinued; where a debtor, perhaps faultlefs, is with-holden from his occupations and from his family, whilft he remains miserable himself, and useless to the publick. I cannot help thinking, that a better mode might be adopted, with no confiderable expense to the state or to individuals, especially if the debtors be workmen or artificers; and imprisonment in this country, at this season, is to all a grievous calamity; to many in every season from religious notions of a defilement, that reaches beyond the funeral pile, worse than inftant death: but, until the wisdom, goodness, and

power