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the sagacity of those ministers, they are seldom, if ever, exposed to the danger of prosecution by the individuals whose liberty they invade. In criticising, therefore, a system of police, as well as a system of summary jurisdiction, which partakes of the same arbitrary complexion, we must, especially in countries like India, rather look to the practical operation of the system than consider it as a regular theory of government, to be judged according to the principles which constitute the basis of what is popularly understood by the term law. The case is, indeed, different when express legislative provisions regulate any part of this otherwise irregular system.
With these few prefatory remarks, 'let us proceed to examine the observations of the learned Chief Justice of Bombay on the proceedings of the magistracy of that island, which he distributes under four heads; namely, such as relate, first, to the origin, constitution and powers of the Court of Petty Sessions; secondly, to the actual proceedings of that court; thirdly, to the powers of the police magistrates sitting singly or jointly; and lastly, to the actual proceedings of those magistrates.
Under the first head: after premising that the police system of the island has been a course of illegality for nearly fifty years, in spite of the occasional interference of judges and grand juries; and after exonerating the present police magistrates from the blame of originating them, the learned judge states, on the authority of an official document framed by Sir James Mackintosh, shortly before he quitted Bombay, that until the year 1812 the police in that island was under no legal regulations: the office of lieutenant of police was without legal warrant, and was abolished in 1790. In 1794, a superintendent of police was appointed with similar powers; but upon the ‘representation of Sir James Mackintosh, the recorder, it was abolished; not, however, till the holder. of the office, a Mr. Briscoe, had been convicted of corruption in the Recorder's Court. Upon that trial, and upon the inquiries which ensued, it is stated by the learned judge, there appeared a scene of fraud, cruelty, oppression, and iniquity, such as has seldom, if ever, been witnessed in a civilized country. The following are the remarks of Sir James Mackintosh, in his representation :
It is too evident to require proof, that the whole of what is called police has been a course of illegality. Nothing has been legal but the apprehension, examination, and commitment of accused persons for trial, and such summary convictions as are authorized by special statute; and, in the last case, only where the due forms of law have been observed, which it will probably be found has not even once been done.
The summary convictions and punishments at the police are illegal on every ground.
1st. They are illegal because they were inflicted under rules which, from 1753 to 1807, were not confirmed by the Court of Directors, and since 1807 have not been registered in his Majesty's Court,
2dly. They are illegal because they were not convictions before two magistrates, as required by the 39th and 40th Geo. III, introduced into this island by the 47th Geo. III.
3dly. They are illegal because many of them are cases of felonies, respecting which no power of summary conviction is vested in justices of the peace, in England or India,
4thly. They are illegal because the punishments of banishment and condemnation to hard labour in chains on the public works are not such as can by law be inflicted, either in England or India, upon summary conviction. Every rupee of every fine imposed since 1753 by the police, may therefore, in strictness of law, be recovered by the party fined ; every stripe inflicted upon them has been an assault and battery, for which they are entitled to compensation in damages; and every detention makes its authors liable to an action for false imprisonment. If, indeed, there had been only an
occasional and cautionary exercise of an illegal power, the case might have been more favourably considered ; but it is a system of illegality exercised with the utmost violence,
Soon after this representation, the present regulations were passed by the Government, and registered in the Recorder's Court. These regulations are described by Sir Edward West as very imperfect and scanty, and in some instances most unskilfully drawn :" a censure which must fall, we apprehend, upon the Recorder, who, if he did not draw up the regulations, adopted their technical errors by the act of registration.
By those regulations a court of petty sessions (to consist of two police or stipendiary magistrates and a justice of peace) is appointed to meet every Monday morning, and authorized to “exercise the power of summary conviction granted by certain statutes to two justices of the peace, particularly in all common assaults, and in all defamatory and slanderous words;" and to have a like jurisdiction over all acts done in violation of the regulations. The court is also empowered to inflict upon persons convicted of the offences above described “such fines and forfeitures, or reasonable corporal punishments, as the offences shall seem to them to deserve, and as by the above recited acts of Parliament they are legally authorized to inflict.”
Now, we are assured by Sir Edward West, that there are no acts which grant the power of summary conviction to two justices in cases of common assaults or affrays, or of defamatory or slanderous words. But we must here express our humble opinion that it was clearly the intention of the legislatiye power (namely, the local government which issued the regulations, the court of law which registered them, and the privy-council which sanctioned them) that such power of summary conviction for the before-named offences should be given to the magistrates; and therefore the violation of the law, upon which so much stress is laid, does seem to be a violation of its letter, not of its spirit and meaning.
In respect to the second head, the actual proceedings of the Court of Petty Session, the learned judge founds his observations upon the summaries of the quarterly convictions and punishments officially laid before the Supreme Court.
The first species of punishment to which he refers is that of banishment. In the summary of convictions between January 6 and March 31, 1823, there are thirty-five instances of such punishment; in the next, extending from April 7 to June 30, in the same year, there are thirty. The judge remarks :
You will observe also the proportion which these punishments bear to all the offences tried by the petty sessions. The whole number of cases during the first period is sixtyone, including many offences of a trivial nature, such as “ driving without badges upon hackeries,” using abusive language,”—and "selling liquor without a license." Out of these sixty-one cases there are thirty-five sentences of banishment. A frequent mode of expressing this sentence of banishment is, “that the prisoner do receive a pass
Thus, the first instance in the first summary is, “ that the prisoner do receive one dozen lashes and a pass-note.” In a few cases the sentence is, “ that the prisoner do receive a pass-note to his own country ;" but of these latter the proportion is but very small; there being in the first summary but eight of this description, out of the thirty-five, In very many of the cases in the different summaries, the sentence is, " that the prisoner be sent off the island ;” in some, “that he be banished,” Nine of the offences out of the thirty-five, for which this sentence is passed, are “ for returning from banishment." In very many cases, the following sentence is passed : “ for returning from banishment, to receive three dozen lashes and a pass-note.” In some cases, for the same offence, “to receive three dozen lashes, to be sent to gaol to 'hard 4 X 2
labour for two months, and to receive a pass-note off the island;"_"solitary confine ment in gaol for one month, then to receive three dozen lashes, and to be sent off the islaud;" and, again, “solitary confinement for three months, and to receive a pass note.”—In some cases are the following offences, for which this punishment of banishment is inflicted : “being very suspicious men and of very bad characters ;"_“brought up as bad characters and having been found in a suspicious situation ;" and in one case, there is the following offence and sentence: “for harbouring in his house a man who had returned from banishment_two months' imprisonment to hard labour."
Sir Edward West observes, that for this punishment, which is sanctioned by the regulations only in certain peculiar cases, “there is not a shadow of authority even for the most heinous offence.” The mode in wbich the sentence of banishment is carried into effect is thus described by him :
Upon the sentence being passed, a note is sent by the police to the custom-house; that note is signed by the officer at the custom-house ; and a police sepoy takes the note and the prisoner to the passage-boat, which passes over to the main land. The prisoner is placed in charge of the tindal, who has directions to land the prisoner at Panwell, or the nearest main land; and the prisoner is accordingly there landed and turned loose. The prisoner is also threatened, in order to prevent his returning, with severe punishment in case he should be found again on the island : nor is this a mere idle or vain threat, as you have seen; “three months' solitary confinement," and “three dozen lashes,” are the penalties for returning from banishment.
Such punishments as banishment and hard labour in chains on public works are not, Sir James Mackintosh justly remarks, such as the law calls inoderate and reasonable corporal punishment; and he adds, “if the officer of police had been resisted and killed in the execution of these illegal orders, the case might have given rise to many questions.” Sir Edward West subjoins the following remarks :
But permit me for a moment to again call your attention to punishments inflicted for returning from banishment. If the sentence of banishment be illegal, as it indisputably is, it is no crime to return from banishment. Had the persons so sentenced petitioned the King's Court to be brought up by Habeas Corpus, we must have discharged them. But in most of the cases the prisoners so sentenced had no opportunity of so petitioning, being confined in the police guard-room till they were sent away ; nor could the natives, who were sentenced, know that such punishment was illegal. The sentences for returning from banishment, for doing that which the persons sentenced had a right to do, are three months' solitary confinement a sentence of such severity as is seldom passed in England for the most serious offences and three dozen lashes, a punishment, to the severity of which I shall call your attention immediately. A person, too, whose only offence was harbouring in his house one who had returned from banishment, which is no offence at all, is sentenced to two months' imprisonment and hard labour.
The punishment of flogging is inflicted, according to the Chief Justice, by the magistracy of Bombay, under regulations which must be derived from the acts before quoted, namely, 39 and 40 Geo. III, c. 79, and 47 Geo. III, sess. 2, c. 68, which authorize such moderate and reasonable corporal punishment, by public or private whipping, or otherwise, as shall be ordered and appointed by the local government; and the only regulation registered in the King's Court at Bombay, ordering and appointing such a punishment, is that already referred to, which sanctions the infliction of reasonable corporal punishment upon persons convicted of “the offences above-described,” i.e. those offences in which the power of summary conviction is granted by certain statutes (not in existence) to two justices of the peace, and all acts done in violation of the regulations. The punishment, he states, is inflicted by a rattan upon the
naked back of the sufferer, who is usually tied to a tree. Of its severity, he adduces the following evidence in two letters; one from Capt. Hughes, the late high sheriff, is as follows :
My Lord: The infliction of punishment by rattans, as now practised in gaol, being attended with extraordinary severity, drawing blood at every stripe, and sometimes taking off with it small pieces of flesh; and in full assurance that a measure so extreme will not, when known, be sanctioned by your Lordship, I beg leave in consequence respectfully to propose, that a drummer's cat may be made use of in the gaol in lieu of the rattan ; which, however formidable it may be in appearance, is far less severe and injurious in its effects. In support of this opinion, I may be permitted to state, that there is now in my custody a battalion sepoy, who, on the 3d instant, received 300 lashes on his left shoulder by the drummers of his corps; and on the 13th of the same month (being committed to gaol) eighteen lashes with a rattan were inAicted on the other shoulder. The wounds on both are still unhealed.
On being questioned as to the difference in point of severity of the two punishments, he declared with confidence, that they did not bear comparison, and was one or the other to be repeated, and a choice given, that he would gladly take the former.”
The other, from the Reverend Mr. Jackson, describes an instance of this punishment in which six blows only were inflicted :
“ I happened some weeks since to call on one of the magistrates, whom I found engaged in his office; a Hindoo was before him charged with stealing some turban cloth. The theft was clearly proved, and the prisoner sentenced to be publicly fogged, and to receive six lashes, or, as I afterwards found to be the case, strokes to be inflicted by a
The man was immediately tied up to a tree in a yard adjoining the house; and one of the police-men proceeded to inflict the strokes. The prisoner was thin and his bones projected considerably, consequently the effect of the stroke was most severe, and the sufferings of the poor' wretch appeared great beyond description. The two first strokes distinctly left on the back the marks of the cane. The magistrate, on seeing the dreadful effect produced, humanely ordered the police-man to strike with less violence; but notwithstanding this, the prisoner, on being released, was unable to stand: he was supported to an adjoining shed, and some water was brought to restore him. The punishment was most severe, and to me most disgusting; and I confess I was much surprised to find that the spirit of prison discipline, as it is termed, and which is now a subject which engages considerable attention in England, had not found its way to her eastern colonies. I will again repeat, that I considered the punishment alluded to most severe, and to the spectator most disgusting.”
Similar testimony was borne by the surgeon of the gaol; and the Chief Justice was, in fact, led to remonstrate on this subject with the magistracy, which remonstrance appears to have lessened the frequency as well as the severity of these floggings; though, in the last summary, he states, there were instances of prisoners being sentenced to two inflictions of three dozen each. The Chief Justice adds: “according to information which I have received, and upon which I can rely, the wounds of the first infliction are frequently scarcely healed before the second is suffered. Gentlemen : the scars of these wounds are never obliterated but by death, and consequent dissolution of the body ; and you may observe the scars on many a native, as he toils along the streets of the town under the burthen of a palanquin.”
With respect to the offences for which flogging is inflicted, it appears to have been awarded, not only in cases of common assault, but in the following, for which there was no authority either by statute or regulation, viz. mutinous conduct on board ship (inflicted on Europeans); refusing to work on board ship; desertion from a merchantman; also, “being found in suspicious situations.” The learned judge remarks that the punishment is mostly inflictedy
not in gaol, but by the police immediately after conviction; thereby depriving the prisoner of an opportunity, should he desire it, of applying to the Supreme Court for a writ of Habeas Corpus.
The next species of punishment to which Sir Edward West adverts is, finding security for good behaviour. This sentence is passed by the Petty Sessions in the following manner: “that the prisoner do give security;" without
“ specifying the period, the sum, or whether sureties are required or not. The evils to which this practice leads are thus pointed out by the judge:
Gentlemen, upon these sentences to find security, prisoners have been frequently confined for very long periods of time. Thus on the 6th of Oct. 1817 a man of the name of Abdul Rahim Seedy was sentenced to hard labour till he should find securities. Under this sentence he remained in gaol till July 1823, a period of six years, when he died in gaol! There are almost innumerable other instances of prisoners being confined for very long periods under like sentences. I hold in my hand a list of a few of them, which I directed the marshal to make out: I will trouble you with only one of them. On the 23d February 1824, one George Bartley was convicted by the Petty Sessions of an 'assault, and he was sentenced to three months' imprisonment in the county gaol, and the last month to solitary confinement, and at the expiration of those three months to enter into a recognizance to kee the peace towards Louisa Bartley his wife. After the expiration of three months he applied again and again to the senior magistrate of police for his discharge, who refused it upon the ground that he had not found sureties. He proposed sureties more than once, but they were rejected. He petitioned me several times for his discharge, but as he never sent me a copy of the warrant, I presumed that he was legally imprisoned, and of course did not interfere. At last, however, I directed him, in answer to his last petition, to send a copy of the warrant, which he did, and it appeared by the warrant and sentence that no sureties were necessary. I accordingly intimated to the senior magistrate of police, that he was entitled to be discharged upon his own recognizance; and that unless he was so discharged, I should order him to be brought up before me by Habeas Corpus; upon which he was discharged, but not till after he had been imprisoned eight months, during five of which he was illegally confined.
Another abuse to which the judge directs attention, is the imprisonment of persons in the police guard-room, or chokeys, as well after as before conviction, instead of their being committed to gaol. The objections attending this practice are obvious: “The prisoners have no means of sending petitions for Habeas Corpus to the judges; the other magistrates have no means of visiting the gaol; the grand juries never think of visiting or inspecting them; and the prisoners are entirely under the control of native clerks and constables, who are to be trusted very cautiously with power.”
Under the third head Sir Edward West merely observes, that the powers of the police magistrates (except in regard to servants and hamauls, referred to hereafter) are defined in Regulation I. of 1812, namely, they are invested with the same authority as justices of the peace in England; they may apprehend, examine, and commit for trial, all persons charged before them with any breach of law,
Under the last head, relating to the actual proceedings before the magistrates, the learned judge's remarks are more copious. He commences as follows:
I was not a little surprised, after Sir James Mackintosh's protest against the proceed. ings of the superintendent of police, to hear some time since that the police magistrates, sitting singly, were in the habit of trying and punishing felonies, of flogging, and banishing. As soon as I was made aware of these proceedings, I directed the clerk of the crown to order the magistrates, in pursuance of the regulation before