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 distinct 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 inftitution of this court, and the principles of criminal juftice. 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 obfervation 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, that you, Gentlemen, have little need of inftru&ion 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 mafter 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 master be guilty of any crime; but if the cor→ rection be immoderate, exceffive, unreafonable, cruel, the party may have, if he live, a reparation in damages; or, if he die, the mafter will be guilty of manslaughter or of murder, according to the circumstances; of manslaughter, if he gave the

fatal blow in a fudden burft of paffion, 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 chaftise immoderately; for the true fense of malice, to constitute 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 perfon ftricken, with the force of the ftriker, and the danger of the inftrument used by him. It is hardly needful to remark, that, in fuch cafes, a fervant and a flave, if fuch a relation be known to our modern law, ftand precisely on the fame ground; as a lord, in feudal times, might indifputably have been convicted of murder for killing his villain or his neife.

In the present cafe, you will hear the witneffes on one fide only; and it is recommended by great lawyers, left enormous crimes should 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 queftions of law, either to hold the prisoner guiltlefs, or to ascertain the precife 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 obferve, 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 alfo, who may be great fufferers, if crimes actually committed escape unpunifhed.

fe

Another cafe, Gentlemen, calls for your rious attention: a forgery has been committed, either by the perfon accufed before me, or by his accufer; which involves, not only the common guilt of that crime, an intent to defraud another, but alio a defign to affect his perfonal 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 subornation of perjury it is a contest between two brothers for a large eftate; both the accufed and his accufer

are Brábmans of fome rank, and have been active in oppofite interefts; the low wretches, who forged the bond, have confeffed their act, which was done, they say, at the inftigation of the accufed Brákman; who denies any knowledge of their perfons, and infifts that his enemy muft have engaged them to ruin him. Your fagacity may enable you to discover the truth; but even in this cafe, 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 misdemefnor 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. I 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 also lie as at common law, fince it has been held that a felony merges or abforbs a mifdemefnor; but I am prepared to deliver my fentiments, and will deliver them fully, at a proper time.

I turn from thefe cafes, with full confidence both in your juftice and your benevolence, to a fubject which has greatly moved me, and on. which the Grand Jury last fummer presented a ftrong addrefs to the Court: I mean the condi