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Cap. 28, for the further improving the administration of justice in criminal cases in England.
Cap. 29, for consolidating and amending the laws relative to larceny, and other offences connected therewith.
Cap. 30, for consolidating and amending the laws relative to malicious injuries to property, including machinery, manufactories, and mines; and
Cap. 31, for consolidating the laws relative to remedies against the hundred.
When Mr. Peel introduced those bills, it was found that, however useful and important many or most of their provisions would be if extended to the East-Indies, still there was so much which was inapplicable to Asiatic habits, and the inconvenience of declaring what part should, and what part should not extend to those countries, would have been so great, that it was deemed expedient not to notice the East-Indies at all
upon that occasion. With the caution and foresight which has so eminently marked that distinguished statesman, he accordingly, protected India from any of the doubts or difficulties which might have resulted from an unqualified repeal of all those old laws which, so far as England was concerned, he swept at once from the statute book, by expressly confining their repeal to England and the high seas, leaving India therefore subject the same code of criminal law by which it was then governed, in order that, upon mature consideration, a separate and distinct code for the administration of criminal justice there might be introduced in the following session.
Nor was such a measure expedient solely with reference to the consolidation and amendment of the criminal law as applied to the British territories in India. It appears that his Majesty's courts of justice there have been in the habit of deciding (as of necessity they must have done) what British statutes did and what did not extend to the persons and places within their respective jurisdictions; to remove all doubt and difference of opinion upon such a subject was a matter of no small moment, and while the act in question accomplishes all those objects, it provides for or corrects such oversights and inaccuracies in former statutes as experience has shewn to be so.
To prevent all doubt and misapprehension as to the places
or the persons falling within its provisions, its first section precisely defines both, by enacting that it “ shall extend to all
persons and all places, as well on land as on the high seas, “ over whom or which the jurisdiction of any of his Majesty's “ courts of justice, erected or to be erected within the British “ territories, under the government of the United Company 6 of Merchants of England trading to the East-Indies, does
or shall hereafter extend." His Majesty's colonies, therefore, such as Ceylon and the Mauritius, are not included in its operation.
In addition to the introduction of all such of the provisions of Mr. Peel's acts of last session as were deemed fit to be applied to India, and of those also of the act introduced during the present session by that right hon. gentleman respecting offences against the person, the act in question includes likewise the provisions of that which was introduced during the present session by the Right Honourable Lord Tenterden, Lord Chief Justice of his Majesty's Court of King's Bench, for amending the law of evidence in certain cases, permitting Quakers and Moravians to give evidence on affirmation, instead of oath, in all cases, criminal as well as civil. Following his Lordship's principle, and wisely extending it to meet the scruples of the natives of Asia, some of whose castes are extremely reluctant to take an oath, this act declares, that every native of any country within the limits of the Company's charter, who may be required to give evidence in any case whatsoever, criminal or civil, may, instead of taking an oath in the usual form, be permitted to make a solemn affirmation or declaration, in such manner and form as the court shall deem sufficiently binding on the conscience. Under this head, too, it may be noticed that the act corrects an oversight which had crept into the East-India Mutiny Act, requiring that the oaths to be taken by members of general or other courts-martial, or courts of request composed of military officers, should be taken upon the Holy Evangelists, and enacts that such persons may, instead thereof, be sworn according to the forms of their respective religions. With a view to make the act as nearly as possible a complete code in itself, for the administration of criminal justice within the East-India Company's territories, it repeals the provisions in the act of 39th and 40th Geo. III. cap. 79, relative to transportation; and those of the act of 53d Geo. III. cap. 155, relative to the stealing securities for money, to forgery, and to counterfeiting coin; and incorporates them with the provisions of this act.
In giving this brief outline of the effect of this most important act, its minute and laborious details have not been noticed; but it may be observed, that few acts have probably ever passed which have been subjected to more patient or anxious consideration. When the subject was first brought to the attention of the Court of Directors, the Company's law officers were immediately instructed to afford every assistance that their knowledge or experience could devise, in furtherance of the important object in view : an assistance to which they not only assiduously devoted themselves during every part of the progress of this great measure, but in which they were honoured with the benefit of the practical and high legal knowledge of the Right Hon. Sir James Mackintosh, Sir Edw. Hyde East, Robert Fergusson, Esq., M.P., and Mr. Serjeant Spankie; the two former of whom have held the highest judicial stations, and the two latter the highest official stations in the law in the East-Indies, Mr. Williams Wynn, who had also devoted the utmost care and attention to the subject, obtained leave, on the 4th June, to bring in the bill upon
which the present act is founded; and on that occasion adverted to the aid which he had received from the eminent persons alluded to, and was pleased to express his sense of the obligation which he felt under to the Company's law officers, for the assistance which they had rendered to him.
At the same time, and under the same auspices, was introduced another measure of no less importance than that to which we have just referred.
On the 6th of June Mr. Wynn introduced the bill, which on the 9th of July 1828 received the royal assent, and became an Act for the Relief of Insolvent Debtors.
Act to take effect in the East-Indies on 1st March 1829.
1828. (1) Be it enacted, that this act shall commence and take effect on 9 Geo. 4, and from the first day of March one thousand eight hundred and twenty-nine, and shall extend to all persons and all places, as well on land as on the high seas, over whom or which the criminal jurisdiction of
any of his Majesty's courts of justice erected or to be erected within the British territories under the government of the United Company of Merchants of England trading to the East-Indies does or shall hereafter extend.
Who may be admitted to Bail on a Charge of Felony. (2) And be it enacted, that where any person shall be taken on a charge of felony or suspicion of felony before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as if not explained or contradicted shall in the opinion of the justice or justices raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices in the manner hereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices of the peace, shall be charged with felony or on suspicion of felony, and the evidence given in support of the charge shall in their opinion not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall be admitted to bail by such two justices in the manner hereinafter mentioned: provided always, that nothing herein contained shall be construed to require any such justice or justices to hear evidence on behalf of any person so charged as aforesaid, unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same: provided also, that in all cases where any person or persons charged as aforesaid shall be brought before one justice, at any place beyond the local limits of the jurisdiction of any of his Majesty's courts of justice erected or to be erected within the British territories under the government of the said United Company, it shall be lawful for such justice alone either to commit such person to prison or to admit him to bail as hereinbefore directed.
Justices to take down in Writing the Examination, &c., and bind Wit-.
nesses to appear at the Trial. (3) And be it enacted, that the justice or justices of the peace, before he or they shall admit to bail or commit to prison any person arrested for felony or on suspicion of felony, shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, and the two justices shall certify such bailment in writing; and every such justice shall have authority to bind by recognizance all such persons as know or declare any thing material touching any such felony or suspicion of felony, to appear at the next court of oyer and terminer or gaol delivery, or superior criminal court or sessions of the peace, at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused ; and such justices and justice respectively shall subscribe all such examinations, informations, bailments and recognizances, and deliver or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court.
Duty of Justice. (4) And he it enacted, that every justice of the peace before whom any person shall be taken on a charge of misdemeanor, or suspicion thereof, shall take the examination of the person charged, and the information
oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material, into writing, before he shall commit to prison or require bail from the person so charged ; and in every case of bailment shall certify the bailment in writing, and shall have authority to bind all persons by recognizance to appear to prosecute or give evidence against the party accused, in like manner as in cases of felony; and shall subscribe all examinations, informations, bailments, and recognizances, and deliver or cause the same to be delivered to the
proper officer of the court in which the trial is to be, before or at the opening of the court, in like manner as in cases of felony.
Duty of Coroner. (5) And be it enacted, that every coroner, upon any inquisition before him taken, whereby any person shall be indicted for manslaughter or murder, or as an accessory to murder before the fact, shall put in writing the evidence given to the jury before him, or as much thereof as shall be material, and shall have authority to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being accessory to murder, to appear at the next court of oyer and terminer or gaol delivery, or superior criminal court or sessions, at which the trial is to be, then and there to prosecute or give evidence against the