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English and Oriental ideas being so great. The opinions recorded hardly suggest corruption on the part of the juries, and they are not accused by any of the writers of wilfully convicting innocent men, or of shutting their eyes to the evidence, or convicting under the influence of such feelings as actuated juries against Papists in the reign of Charles II. It is interesting to find that many of our Indian subjects admire the jury because of a supposed likeness to the indigenous Punchayet or Arbitration of five. This reminds one of the argument of English patriots based on Magna Carta, implying that the trial by one's peers, the famous judicium parium suorum, meant trial by jury. It may be that some juries are liable to be bamboozled by Counsel in India, or to take a stupid view of the case like the Coroner's jury on the body of Miss Kilmansegg with the golden leg :
“The foreman was a carver and gilder,
They brought in a verdict of felo-de-se,
For it was her own leg that killed her.” But the responsible Governments in India do not appear to lay any stress on the argument from stupidity.
The whole compilation of Indian opinion is worthy of careful study, not only for the variety of views expressed, but because of the lights it throws on Indian life, and because the writers are experts on the subject. It must not be forgotten that the High Courts can change the venue of a trial, that the Advocate-General can file criminal informations in the High Court, and that the Governors can pardon a man wrongly convicted. There is also some advantage in the finality of a jury's verdict. The Crown and the prisoner both have the right of challenge : and arrangements are being made to improve the whole panel. Lastly, we may draw attention to the conclusion of Sir James Stephen about trial by jury in this country, that whatever defects there may be in it may be effectually removed by having more highly qualified juries, men of some position and intelligence and above the danger of intimidation.
TRIAL BY JURY IN BENGAL.
By C. D. FIELD, M.A., LL.D., Of the Inner Temple, Barrister-at-law ; (late Judge of the High Court,
Calcutta). When the Supreme Courts were established in the Presidency Towns of India, a hundred and twenty years ago, most of the principles and forms of English procedure were introduced ; and amongst them trial by jury, which has since that time formed part of the system of administering criminal justice in the cities of Calcutta, Madras, and Bombay. Nuncoomar was tried by a Calcutta jury more than a century ago, Sir Elijah Impey, the Chief Justice, presiding at the trial. The Jury panel has included Natives as well as Europeans, and in every jury there have usually been found representatives of both races. There had therefore been some eighty-eight years' experience of the jury system in India, when the Penal Code became law in 1860, and it was thought desirable at the same time to reform and improve the procedure in the trial of Criminal Cases in the Mofussil (as the provinces outside the limits of the Presidency Towns were termed). For this purpose the Code of Criminal Procedure was passed in 1861, and by this Code jury trial was first introduced into the Bengal Mofussil. We had long pursued a system of education under which the natives of the country were taught everything English ; and the educated youth in the districts about Calcutta were as well acquainted as most of their rulers with the theoretical ideas of English institutions. It seemed therefore that the rising generation might well be invited to practise what they had been taught, and that the administration of justice might be served by this forward step, which would also afford a useful lesson in self-government. At the same time it was not overlooked that all parts of the country were not equally advanced, and therefore not equally fitted for the experiment. It was reasonably supposed that the local Lieutenant-Governor would
be the best judge of the districts best fitted : and it was accordingly provided that he might by order in the Official Gazette direct that the trial of all offences or of any particular class of offences before any Court of Session should be by jury in any district ; and might revoke or alter such order.
Under these powers the then Lieutenant-Governor of Bengal in 1862 directed that certain offences should be tried by jury in the following seven districts, viz., Twentyfour Pergunnahs, Hughli, Burdwan, Nuddea, Murshidabad, Dacca and Patna. The language of the first six districts is Bengali. That of Patna is Oordoo. For those who are not intimate with the geography of Bengal, it may be added that the Twenty-four Pergunnahs is the district just outside and round about Calcutta, the old boundaries of which (like the old boundaries of London) have become practically obsolete, a very large portion of modern Calcutta being outside these boundaries and in the district of the Twenty-four Pergunnahs. The Sessions Court of this district is in the suburbs of Calcutta at Alipore, about a mile or less from the city boundary on the south side which is formed by the site of the old Mahratta ditch. The District of Hughli is separated from Calcutta and the Twenty-four Pergunnahs by the river Hughli. It consists of two parts, Hughli proper and Howrah. The Sessions Court-house of Howrah is on the river bank opposite to, and in sight of, the Calcutta High Court. The town of Howrah is joined to Calcutta by a bridge, and is really a large suburb of the city. Burdwan is on the East India Railway beyond and adjoining the Hughli district. Murshidabad adjoins Burdwan to the east. Nuddea lies east of Burdwan, Hughli and the Twentyfour Pergunnahs. There is easy access by rail, road, and water from all these districts to Calcutta, and they have fully enjoyed the benefits of the education which has long been afforded at very little cost to those educated. Dacca is the capital of the district of the same name and indeed of Eastern Bengal, and is the seat of a college. Patna, also the seat of a college, is the most important place in
Behar. It will thus appear that whatever opinion be formed as to the wisdom of making this experiment in the administration of justice, sufficient caution was shown in selecting the localities most advanced, and therefore best suited for success.
The offences made triable by jury in these districts were :
(1) Offences against the Public Tranquility (Chapter VIII. of the Penal Code)—including rioting in all its branches;
(2) False Evidence and Offences against Public Justice (Chapter XI. of the Penal Code);
(3) Offences affecting the Human Body (Chapter XVI. of the Penal Code)—including murder, culpable homicide, suicide, hurt, kidnapping, wrongful confinement, causing miscarriage, and rape;
(4) Offences against Property (Chapter XVII. of the Penal Code)—including theft, robbery, dacoity, criminal breach of trust, receiving stolen property, cheating, burglary and arson ;
(5) Offences relating to Documents and to Trade and Property Marks (Chapter XVIII. of the Penal Code) — including forgery in all its branches ;
(6) Abetment of, and attempts to commit, any of the above Offences (Chapters V. and XXIII. of the Penal Code)
When the experiment of trial by jury in the Bengal Mofussil was thus inaugurated in 1862, danger was apprehended from several sources, namely-corruption ; caste prejudices; and want of ability in the jurors to understand the evidence and proceedings. It was hoped, however, that, as the Judges became accustomed to the work of putting the case before the jury; that, as education spread, and public morality and public opinion improved, these dangers would be lessened. As regards corruption, this hope may be said to have been fairly realized. The Writer of this article went to Bengal just before the Code of Criminal Procedure came into force and for twenty-six
years had an opportunity of watching its operation. For the greater portion of this period he had actual experience of the working of the jury system as a Sessions Judge in four out of the seven districts in which it has been tried ; and afterwards as a Judge of the High Court, in which latter capacity he dealt on the appellate side with cases from all seven districts; and on the original side, holding the Sessions for the city of Calcutta, had some experience of juries in the Presidency Town. He has pleasure in being able to say that he has not met with any case in which it was shown that a wrong verdict was due to corruption. He has read of an alleged instance since his retirement; but those who are conversant with the history of the institution in England know that corrupt verdicts there once constituted an evil of such magnitude, that special legislation was more than once used to suppress it.
As to caste prejudices the apprehension of danger was well founded : and it cannot be gainsaid that some failures of justice at first occurred from this cause. So long as the influence of the old religion is not overcome by the enlightening effects of education in the broad sense of the term, this danger will not wholly disappear. There is however reason to believe that it has diminished and will further diminish under the influence of progress. At the meeting in Calcutta several cases were referred to, in which juries had convicted Brahmins of murder. In the early days of the experiment such instances were wanting, and juries unwilling to give a verdict that might bring capital punishment, in more than one case, convicted of a minor offence, for which, however, a substantial punishment could be inflicted. Have not English Juries notoriously done the same, when death was the punishment for sheepstealing and other offences under a Draconian code, which has happily been mitigated ? Do they not to this hour usurp the prerogative of mercy, when they acquit on the capital charge and convict of mere concealment of birth a hapless girl, who has been betrayed, while Justice