I

English custom, ideology, and identity enshrined the trial by jury as one of the fundamental liberties of freeborn Englishmen. As Douglas Hay has noted, during the eighteenth and early nineteenth centuries, the jury was a ubiquitous feature of the English juridical landscape, appearing not only in civil and criminal trials but also in thousands of manor courts, coroner's inquests, and hundred courts.Footnote ¹ Nevertheless, the role, function, purview, and composition of the jury increasingly became a subject of debate in England, especially as a result of Pitt's suppression of dissent and political organization during the Napoleonic Wars as well as the later acts of political repression that culminated in the Peterloo Massacre and the passage of the infamous Six Acts in 1819. In the mid-1820s, the home secretary, Robert Peel, brought the issue of jury reform before parliament and Peel's Jury Act of 1825 consolidated and reformed the selection and qualifications of jurors in England.Footnote ²

It is perhaps not surprising, therefore, that, given the growing prominence of the debate over juries in England, British governors, judicial officials, and military officers in the colonies also began to recognize and investigate their existence elsewhere. In India, these investigations focused upon the survival of the customary village council, or panchayat. Several prominent officials of the East India Company working, living, and fighting in India believed that Britain's ‘tutelary mission’ necessitated the revival of this ancient tribunal that distributed justice according to the laws and customs of the people. At various times, these officials attempted to adopt panchayats in areas as diverse as civil, criminal, and even military justice. Nevertheless, there was no clear consensus among Company officials as to the panchayat's customary form, function, or composition. Most, if not all, accepted the notion that it was a tribunal organized to resolve disputes. However, some British officer-officials, most notably Mountstuart Elphinstone, the governor of the Bombay presidency between 1819 and 1827, believed it functioned fundamentally as a board of arbitration and thus provided an inexpensive and speedy forum for alternative dispute resolution. Others, such as Elphinstone's mentor and fellow officer Sir Thomas Munro, governor of the Madras presidency between 1814 and 1826, believed that the panchayat's function was more akin to that of the English jury.

When the panchayat was understood as a form of the common law jury, it undoubtedly took on a meaning and consequence of immense political and ideological weight. The analogy made between the panchayat and the English jury became an especially salient issue during the 1820s and 1830s when both radicals and legal reformers in England debated the jury's role in the metropole. However, that debate could not be constrained within these geographic limits and the reform of the jury system simultaneously became an imperial as well as an English issue. In India, the question took on a variety of meanings because the role of the panchayat as jury involved not only issues of citizenship, but also issues of race, nationality, and religion. In one sense, therefore, the ‘jury debate’ in England also became a debate about the form and practice of colonial governance; in India, moreover, it became part of a more general debate about the construction and definition of identities in law and civil society.

II

The recognition of the panchayat either as a jury or a board of arbitration appears to have been a new phenomenon. In the quarter century before 1800, Company officials in India already had a variety of experiences with panchayats, but they rarely equated them to an English jury. In nearly every case, panchayats were recognized either as religious or caste institutions that regulated discipline or as collective organizations representing specific groups of artisans. In Bombay, for example, the governor and the mayor's court had several issues presented to them regarding the customs and discipline administered by the Parsi panchayat. In 1778, for example, the governor of Bombay, William Hornby, was petitioned requesting the authority to shame transgressors before the panchayat by hitting them with shoes. Hornby granted the panchayat's request, but he prohibited them from employing any other form of corporal punishment.Footnote ³ In 1786, the British government in Bombay again intervened in a dispute involving the Parsi panchayat, this time not only revoking the panchayat's authority to punish ‘by the slipper’, but, more importantly, reconstituting the panchayat by way of the government appointment of its members.Footnote ⁴

In western India, the Company's recognition of panchayats was not limited to the judicial oversight of religious discipline. Artisanal or jati panchayats were also well known, especially since they often served as units of revenue assessment and collection. The Company's accounts of the Mughal revenues in Gujarat, for example, list dozens of licence fees collected from the jati panchayats of opium sellers, tinsmiths, plantain sellers, goldsmiths, well-diggers, turmeric sellers, milk sellers, handkerchief makers, and coral brokers, to name but a few.Footnote ⁵ Not surprisingly, perhaps, some British officials expressed the fear that these artisanal panchayats were analogous to British trade unions and thus, after 1799, constituted unlawful combinations.Footnote ⁶ John Melville, the magistrate at Dacca, however, warned against confusing the purpose and function of these two types of organization. ‘I have heard some persons object to punchauts’, he wrote, ‘because they have known of unlawful combinations under that name, but this, I should observe to them, is speaking of a different matter, and a magistrate would surely not do his duty, who did not prevent such combinations.’Footnote ⁷

Melville, in fact, was among the first Company officials to envision the panchayat as a specifically juridical institution, an idea that would later come to dominate British judicial policy in India during the first third of the nineteenth century. Indeed, the remarks made in his 1801 letter to the government of Bengal were often repeated in later communications from London concerning the role of panchayats in the administration of justice.Footnote ⁸ In those remarks, he imagined the panchayat as an alternative to litigation, functioning as an arbitration tribunal and thus serving to mitigate ‘a source of great unhappiness, the parent of multiplied [sic] crimes’.Footnote ⁹

The analogy made between the customary functions of the panchayat and those of English tribunals of arbitration was one of the principal ways in which British administrators attempted to understand and adapt the panchayat to colonial governance. But this was only one of several competing perceptions of the panchayat among British officers, administrators, and observers during the early nineteenth century. Equally important was the notion that the panchayat was more closely akin to a British summary court, especially although not exclusively with jurisdiction over petty civil disputes. Finally, there were those who imagined the panchayat as a jury. This construction of the panchayat possessed a special resonance for its adherents for it complemented a particular imagining not only of India's pre-Mughal past, but also England's common law history and the connections between the two.

Perhaps the earliest expression of this analogy was presented in Mark Wilks's Report on the interior administration, resources, and expenditure of the government of Mysoor, submitted in 1799 and published in 1805. Wilks had been commissioned into the Company's military service in 1782, served in Cornwallis's army during the third Anglo-Mysore War, and was later the Resident at the court of Mysore between 1803 and 1808.Footnote ¹⁰ His description of the Mysore panchayats avoids using the term ‘jury’ specifically. However, Wilks does describe the process as a ‘public trial’ before ‘a Panchaet or Commission of Five, to be assembled in open Cutcherrie; to which all inhabitants of respectability and unconnected with the party, have the right of becoming assessors’.Footnote ¹¹ The term ‘assessor’ is especially significant here. In England, assessors had long been used as expert jurors in admiralty cases, for example, but by the end of the eighteenth century the term had largely become associated with those who were specially chosen and paid to serve on special, or expert, juries.Footnote ¹² Bentham's attack upon the special jury system, The elements of the art of packing, as applied to special juries, written in 1808, often refers to these select jurors as assessors.Footnote ¹³ For him, special jurors were nothing less than ‘a standing body of assessors, instruments tenanted in common by the leading members of administration, by the Judges, and by the other crown-lawyers – troops enlisted, trained, and paid by the crown-lawyers, liable to be cashiered, each of them, at any time, without a word of explanation’.Footnote ¹⁴

Regardless of Bentham's obvious antipathy to the system of special juries, Wilks's own description of the panchayat, perhaps necessarily, drew upon the language of trial by jury in order to comprehend what was, to him, an alien system of justice. Obviously, we will never know what nuances, distinctions, or processes that he either missed or misunderstood because his understanding of the late eighteenth-century panchayat was framed in this manner. However, he clearly was favourably impressed, if only by way of analogy, by the judicial functioning of the panchayat system. Criminal trials in Mysore, he reported, were convened by regional administrators, the subadars, and conducted before a panchayat whose decision was then sent for review and sentencing to the diwan, Mysore's chief minister. In civil trials, local administrative officials, the amins, exercised summary jurisdiction over petty cases, but cases involving more significant sums were heard by a panchayat. Depending on the complexity of the matter, the results of the panchayat's deliberations were then forwarded to the amin, subadar, or diwan, for final judgement.Footnote ¹⁵

Wilks's Report explicitly praised many aspects of the system of trial by panchayat, but only in so far as they reflected English jurisprudence, English trial procedures, and, of equal importance, Enlightenment sympathies. Thus, Wilks praised the fact that the members of panchayats were drawn only from ‘inhabitants of respectability’, that the trials were public and not private, and that this ‘publicity is considered to afford an important security against irregular or partial proceedings’.Footnote ¹⁶ Procedures, he noted, differed significantly from English practices, but he seems to have been impressed by, or at least given tacit approval of, the process whereby both defendants and plaintiffs gave their ‘narratives’ of the affair viva voce after which ‘this narrative is carefully committed to writing, and twice read over to the party who corrects what has not been properly stated; the document is then authenticated by the signature of the party, of two witnesses, and of a public Officer’.Footnote ¹⁷ Furthermore, he approved of the fact that decisions of the panchayat were subject to appeal and that the penal system was, in his view, proportionate. He appears to have admired the fact that corporal punishment was prohibited, that the death penalty was imposed only upon conviction of charges of murder or ‘plunder on the frontier’, and that ‘fines are discouraged, as a dangerous instrument in the hands of subordinate authority’.Footnote ¹⁸

However, where panchayat procedures differed from English jurisprudence, Wilks was much less sympathetic. His most critical comments were reserved for the practice of giving testimony before the panchayat. Unlike in the West, there was neither a presumption of innocence nor a presumption that witnesses were telling the truth. All evidence presented before the panchayat was presumed to be false until or unless it was corroborated by other witnesses. ‘It is a fixed rule of evidence in Mysoor’, Wilks wrote, ‘to suspect as false the testimony of every Witness, until its truth is otherwise supported.’Footnote ¹⁹ Wilks's further investigations into the matter, including frequent conversations with the diwan and ‘the most intelligent members of these Panchaets’, only resulted in the reluctant recognition that these leading members of society did not hesitate ‘to defend the rule, and to avow, as an abstract proposition founded on experience, that the presumption is infinitely stronger against the veracity, than in favor of the truth, of a witness’.Footnote ²⁰ Wilks found great difficulty in ‘reconciling this rule of evidence to any fixed principles of jurisprudence’.Footnote ²¹

Its significance, to him, was viewed not only in terms of civil and criminal procedure, but, more importantly, in terms of ‘the defective morals of the people’.Footnote ²² Wilks reasoned that the presumption of false testimony was rooted in the fact that there was no Western equivalent to testimony upon oath, an act of faith that helped to secure truthful testimony. To him, this was the most essential difference between English and Indian jurisprudence. There were many ramifications to this alleged deficiency. Wilks suggested that it might have been the source of Indians' ‘lamentably deficient’ regard for ‘that ordinary degree of veracity’, which so obsessed the colonial imagination. More importantly, however, he drew upon an eclectic combination of common-law tradition and Enlightenment philosophy to condemn Hinduism generally in this regard.

In England, religion and oath taking were inextricably linked together. Indeed the latter was dependent upon the former.Footnote ²³ In this regard, oath taking was as much a religious issue as it was a legal one. The law in Mysore was not based either upon the presumption of innocence or the importance of oath taking because Hinduism failed to bind together ‘the consciences of men’. Drawing upon a relatively brief discussion in Montesquieu's The spirit of laws, Wilks suggested that the truth or falsity of the theology of Hinduism was not significant here, but its civil function was. Like Montesquieu, he noted ‘that religion, however erroneous, is the best security we can have for the probity of men; and that its errors may be corrected by civil laws, extending their influence over the morals of the people’.Footnote ²⁴ Therefore, in the case of rendering testimony and providing for oath taking, considering all of their moral and social implications, Wilks concluded that Hinduism had failed in this essential civic task.Footnote ²⁵

Nevertheless, despite his reservations concerning oath taking and despite avoiding the term ‘jury’ to describe the function of the panchayat, Wilks's Report is the first major analysis that at the very least suggests an identity or analogy between the panchayat and the jury. The circulation of the Report was certainly not a wide one nor was it specifically addressed to the public. However, in 1810, Wilks went on to publish the first of a multi-volume Historical sketches of the south of India, a work that was of much greater importance for the British reception and understanding of the panchayat in several regards. First, the Historical sketches appears to contain the first account in Britain of the panchayat intended for a public audience. Wilks himself noted in a footnote to the first edition that the panchayat was ‘an institution so entirely neglected or misunderstood, that I believe its existence is now, for the first time, presented to the notice of the English public’.Footnote ²⁶ Second, the Historical sketches now specifically invoked an analogy between the panchayat and the English jury, the analogy that had been carefully avoided in Wilks's earlier Report. Third, Wilks posited the logical corollary that if India possessed its own form of the jury, then by extension it must also possess its own form of the common law. Therefore, Wilks contended that if ‘Anglo-Indian legislators would throw off’ their prejudices,

Interestingly, Wilks himself realized that his earlier Report had contributed to the entrenched British prejudice against Indians and their participation in the legal system. He took the opportunity of the publication of the Historical sketches to accept the fact ‘that the reproach of English prejudice applies in a certain degree to some of my observations on this subject in 1804: and I regret having made them at all, because they have been misapprehended’.Footnote ²⁸ In its place, he took up a theme that later would be taken up by many British Orientalists; that is, to really ‘know’ Indians, it ‘requires to have lived and been educated among them, as one of themselves’. In this regard, he implicitly admits that his previous remarks had been the result of not really ‘knowing’ the Indian. However, after serving as Resident at Mysore for several years, he felt sure enough to declare that ‘the Hindoo character, like all others, is of a mixed nature’.Footnote ²⁹

And yet despite the admissions that Hindus were ‘like all others’, that India possessed a common law, and that the panchayat was a trial by jury, Wilks could not concede that Britain's colonial control of India was unwarranted, mistaken, or unethical. He willingly admitted that few if any Europeans could acquire the knowledge or experience to ‘place him on a level with an intelligent Hindoo Panchayet’. However, this only meant to him that India could be controlled with a smaller British judicial establishment. ‘To govern the Hindoos in reality, and not in pretence’, he wrote, ‘by their own laws and customs, civil and criminal, would admit of extensive aid in judges and juries (panchaiets) from among the natives themselves, checked without material danger of corruption by a reduced scale of European controul’.Footnote ³⁰ In sum, Wilks had reached the limit or barrier of the imperial mentality.

III

Unfortunately, little is known of Wilks's early personal history save for the fact that he was born on the Isle of Man and educated there for the clergy.Footnote ³¹ There are no clear indications or suggestions as to how or when he became educated in the works of the Enlightenment.Footnote ³² However, his publications place him squarely in the Scottish Orientalist tradition, a tradition that placed great value upon India's historical traditions and sought to revive India's ancient institutions. Perhaps it was his association with Sir John Malcolm, one of the most prominent Company officer-officials of the early nineteenth century, which directed him along this course. Malcolm had been appointed the political Resident at the court of Mysore in 1803. However, illness and service in the Second Anglo-Maratha War had prevented his taking up the position until November 1804. During the interval, Wilks had been appointed as acting Resident there and appears to have been among Malcolm's circle of friends in Mysore, or at the very least one of those who were among his closest associates.Footnote ³³

Malcolm had been born in Scotland in 1769 and studied briefly at the University of Edinburgh, but from a very young age he had made his career in the service of the army of the East India Company.Footnote ³⁴ His rather startling military and diplomatic career in India, including a close friendship with Arthur Wellesley, later the duke of Wellington, was the stuff of which schoolboy stories of the later Victorian era were made.Footnote ³⁵ He was also a keen observer and advocate of the panchayat system. However, unlike Wilks, he was less sure that the panchayat was a form of the trial by jury and, in fact, never appears to have used the term ‘jury’ to describe the panchayat's form or function.

In his published works, Malcolm first mentioned the panchayat in the Sketch of the Sikhs, which appeared in 1812.Footnote ³⁶ Here, he described the panchayat only as ‘a court of arbitration’ and the members of panchayats as ‘arbitrators’.Footnote ³⁷ As noted above, this analysis of the function of the panchayat as a tribunal of arbitration would be taken up and implemented in the judicial administration of the Bombay presidency by Mounstuart Elphinstone. Nevertheless, Malcolm's later work, A memoir of central India, published in London in 1823, offered a much more nuanced view of the panchayat than that which had appeared in the Sketch of the Sikhs.Footnote ³⁸ The material in the Memoir was drawn almost entirely from Malcolm's earlier report on the governing of Malwa that had been submitted to the marquess of Hastings, the governor-general, in 1821. Published in Calcutta the following year as the Report on the province of Malwa, and adjoining districts, Malcolm not only described the importance of the panchayat in central Indian society, but also delineated the variety of its forms and functions.Footnote ³⁹ However, in neither the Report nor the Memoir, did he ever draw upon the common law jury analogy.

Instead, he elaborated what he believed to be two fundamental forms of the panchayat system of justice serving either as investigatory tribunals whose results were transmitted to the ruler for dispensation or as tribunals of independent arbitration and mediation. Writing of the variety of panchayats in the territories ruled by the Maratha peshwas and the Rajput princes of Malwa, Malcolm concluded that

The inability to classify precisely the functions of the panchayat within the context of contemporary British legal categories was a recurring theme among officials and it was perhaps no more apparent than in the career of Sir Thomas Munro. Without doubt, Munro was the foremost advocate of the restoration of panchayats during the first quarter of the nineteenth century.Footnote ⁴¹ His early advocacy of the panchayat was based on the perception, as we already have seen in the case of Wilks, that India possessed a common law and that the jury as panchayat was one of the Indian common law's fundamental elements. Although Wilks may very well have been the first to bring this perspective before the British public, Munro's private advocacy of this position predated the publication of Wilks's Historical sketches by three years. First elaborated in a Company report dated 15 August 1807, Munro made the dogmatic and oft-repeated claim that ‘there can be no doubt that the trial by Punchayet is as much the common law of India in civil matters, as that by Jury is of England’.Footnote ⁴²

Munro's 1807 ‘Report of the collector of the ceded districts’ laid less emphasis upon the specific forms and practices of actually functioning panchayats than upon the failures and inadequacies of the operation of the Company's judicial code in the Madras presidency. As such, the report reveals much more about the Orientalist desire to revive the ancient institutions of India than about the quotidian realities of implementing a system of judicature based upon panchayats. Decisions in the Company courts, Munro argued, were slow, costly, liable to corruption, and, most importantly, frequently made by judges ill-informed of the customs, practices, and language of the litigants. ‘The Native who has a good cause’, he wrote, ‘always applies for a Punchayet while he who has a bad one, seeks the decision of a Collector or a Judge because he knows that it is easier to deceive them.’ The resurrection of the panchayat would mitigate these problems by encouraging the publicity of judicial decision-making and by providing for judgements to be made by those most familiar with the language, culture, and customs of the litigants. ‘The natives’, Munro concluded, ‘surely cannot with any foundation be said to be judged by their own laws while the trial by Punchayet to which they have always been accustomed is done away.’Footnote ⁴³

Later in 1807, Munro returned to London and for the next several years worked closely with both officials of the East India Company and members of parliament promoting reform of the Cornwallis system and the restoration of panchayats in the Company's Indian territories.Footnote ⁴⁴ His influence was especially felt among the members of the parliamentary select committee on the affairs of the East India Company, which produced the multi-volume Fifth report in 1812–13.Footnote ⁴⁵ Although Munro's testimony before the committee was specifically on matters of trade and settlement, his work with the Company soon bore fruit.Footnote ⁴⁶ After the renewal of its charter in 1813, the Company launched an inquiry into the administration of justice and the system of police in India. Munro appears to have taken a leading role in this investigation. Sometime in 1813, he wrote a memo to the Company on the reorganization of the judicial system in India and, in November of that year, he submitted a further letter on the topic. In both, he argued that the imposition of a British system of justice had created ‘the most expensive judicial system in the world’, which was ‘attended with vexatious delays, forms, and expense’. Moreover, by superseding the traditional village headmen (patel) and clerks (curnam), the Company had undermined their ‘ancient authority’ and thereby weakened their support of the government.Footnote ⁴⁷ To solve these problems, Munro recommended the restoration of the ancient constitution of ‘the municipal institution of the village corporations, or little republics, of which India is composed’.Footnote ⁴⁸ That entailed the restoration of the traditional authority of local officials and the resuscitation of the panchayat to settle civil disputes. ‘If we seek to ameliorate the character of the people of India’, Munro concluded, ‘we must maintain their ancient institutions so long as they are respected by themselves: we must support the authority of the Potails, as the instruments by which subordination is preserved in the villages, and the trial by punchayet, as that by which litigations are adjusted.’Footnote ⁴⁹

By April 1814, concerned about the enormous backlog of cases that had been accumulating in the Company courts, the Board of Directors in London had ordered the Madras presidency to reform its judicial system and to incorporate Munro's recommendations.Footnote ⁵⁰ Similar orders were later dispatched to both Bombay and Bengal.Footnote ⁵¹ In the Bombay presidency, the panchayat system was eventually implemented in the Deccan territories conquered by Elphinstone at the end of the Third Anglo-Maratha War.Footnote ⁵² However, in Bengal, the orders evoked significant resistance both among the British administrators there as well as the judicial establishment. Opposition to the implementation of the new judicial arrangements in Bengal carried on well into the 1820s and, in fact, was never adopted there.Footnote ⁵³

At the same time, in 1814, Munro was dispatched back to Madras with a special appointment to head a commission to investigate the administration of justice there.Footnote ⁵⁴ The commission circulated a draft of the new government regulations in July of 1815, which were then adopted in a series of steps between May and September 1816.Footnote ⁵⁵ Together, Regulations iv through vii remodelled the Madras judicial system along the lines envisioned by Munro.Footnote ⁵⁶ Judicial and revenue authority was transferred to village headmen, now styled the village munsif, and village panchayats were authorized to try and determine cases involving money and personal property. The procedures established by Regulations V and VII for trial by panchayat were an odd mixture of English legal practice and Munro's imaginative recreation of the panchayat's customary rules. In particular, this meant combining the voluntary practices of Munro's imagined ancient panchayat with those elements of compulsion established in English law. Thus, Indian litigants were allowed the option of either submitting their claim to the munsif for summary justice or choosing to have their case heard by a panchayat. In all suits, the voluntary approval of both the defendant and the plaintiff, as seems to have been customary, were required before proceeding to trial by panchayat.Footnote ⁵⁷ Although ‘the most intelligent and respectable inhabitants of the village’ were bound to serve as jurors only ‘if he be willing to undertake the duty’, fines were nonetheless to be assessed upon those who did not attend and, as in English procedures, a rotation system, or jury list, established. Indeed, the compulsion provided by the implementation of fines occurs repeatedly in the Regulations. Thus, fines could be imposed upon witnesses who refused to attend a panchayat, parties or their representatives found guilty of contempt, and panchayat members found guilty of corruption,

The procedures of a trial by panchayat themselves exemplified Munro's complicated or, some might say, confused attempt to merge what he believed to be the practices of the customary panchayat with those of English civil procedure. Parties to the suit could be represented by vakils, or legal pleaders, but only if the vakils were their relatives, servants, or dependants and possessed a vakalatnamah, or pleader's licence. Plaintiffs were required to submit a written complaint, but defendants only a verbal answer. Both plaintiffs and defendants were required to submit to the panchayat a list of their witnesses and exhibits. Witnesses in cases valued at over Rs. 20 were to be deposed by the panchayat and their testimony written down and signed or marked. In suits valued at fewer than Rs. 20, however, oral depositions were permitted. Appeals from the decisions of village panchayats were prohibited, except on the grounds of alleged corruption or gross partiality. Finally, the decisions of panchayats were not bound by law or legal precedence. In a sense, therefore, Munro imagined the panchayat as a court of equity whose decisions were to be reached only ‘according to justice and right’.

The failure of Munro's attempt to institute his vision of trial by panchayat was apparent almost immediately. On the one hand, the initial report on the effects of the changes submitted by George Stratton, one of the members of Munro's judicial commission, in April 1818, revealed that the total number of suits filed in all of the Company's courts annually had risen by almost 40 per cent under the new system. On the other hand, the number of suits decided by village panchayats was infinitesimal. Of the 65,483 cases heard before all of the courts in the presidency during the year 1817, only 250, or 0·38 per cent, had been heard by village panchayats.Footnote ⁵⁸ Moreover, throughout the next several years, the record of the panchayats showed no improvement and their relevance became even more marginal. Indeed, between 1823 and 1827, panchayats heard only 237 of 263,990 civil cases, a mere 0·09 per cent.Footnote ⁵⁹

The fact that Indian litigants had so decisively rejected the British incarnation of trial by panchayat in favour of the summary justice meted out by village munsifs and the winner-take-all decisions of the British courts must have been a bitter blow to Munro.Footnote ⁶⁰ Until his death in 1827, he continued to defend the trial by panchayat, but his increasingly strident defence came to rely upon the notions that the failure of the system had been due to the fact that its detractors had forced the introduction of too many rules governing panchayat procedures and that a greater degree of compulsion was necessary to make the system work properly. In his Minute on the state of India, submitted in December 1824, Munro complained that in order to mollify the opponents of trial by panchayat, the system ‘was placed under so many restrictions as to deprive it of much of its utility’.Footnote ⁶¹ The revival of the panchayat, he wrote, ‘was opposed by some very intelligent men, on the ground of its form and proceedings being altogether so irregular as to be quite incompatible with the system of our courts’. He insisted that all the evidence collected by Company officials had proven that panchayats had been used extensively in India and that they remained popular ‘among the natives’. Given their popularity and their customary standing, Munro advocated extending the jurisdiction of panchayats to cover criminal cases and making trial by panchayat compulsory. He recommended that both the Zillah and district munsif's courts be abolished in favour of a more extensive employment of trial by panchayat and that ‘neither party should have the option of declining its jurisdiction’.Footnote ⁶²

IV

By the time of Munro's Minute, however, the discussion of the trial by jury in India had shifted considerably. The changing terms of the debate were influenced by several factors, including the growing recognition that the English-style trial by jury had been successfully introduced in Ceylon and elsewhere in the empire, the introduction of a bill in parliament on judges in India, and, most directly perhaps, by the debate surrounding the introduction of reforms to the jury trial in England. Home Secretary Robert Peel had first introduced the subject of jury reform in England before the House of Commons in February 1824.Footnote ⁶³ He stated then that the purpose of the bill was to consolidate the statutes relating to the empanelling and composition of juries as well as to introduce new measures designed to compel the attendance of jurors and to transfer the supervision of jury lists to local magistrates, the last of which was later amended to be delegated to churchwardens and overseers. The bill's final version also included important provisions for the significant liberalization of jurors' qualifications and revised rules for the selection of special juries in criminal cases.Footnote ⁶⁴ With the support of radicals such as Joseph Hume and John Cam Hobhouse, leave was given to bring in the bill in March 1825 and it quickly became law in June of that year.Footnote ⁶⁵

At nearly the same time, a now rather obscure member of parliament, Charles Watkin Williams Wynn brought in a bill to regulate the salaries of judges in India.Footnote ⁶⁶ Williams Wynn had been appointed president of the Board of Control of the East India Company in 1822 and the bill, though relatively mundane in this regard, nevertheless drew the attention of the radical MP Joseph Hume. When the bill was brought up for discussion in June 1825, Hume proposed to insert a clause giving Indians the right to serve on juries. He noted that

Like many of his contemporaries, Hume's speech illustrated the ambiguity that surrounded the British understanding of the relationship between the Indian panchayat and the English jury. He first noted that the panchayat was an arbitration tribunal but then immediately proceeded to redefine it as a jury. ‘Of all the countries in the world’, Hume announced,

Williams Wynn's response was sympathetic although he ultimately opposed adding the clauses to the bill. He noted that he supported Hume's proposal and indicated that he planned to introduce such a bill the following session. In fact, he said, ‘I am desirous, whenever a fair opportunity occurs, to secure the jurisdiction of the panchayet to the whole of our Indian empire.’Footnote ⁶⁹ However, Williams Wynn could not support Hume's proposal at this time because he believed that such a significant matter required a separate bill. The bill, therefore, limited only to judges' salaries and pensions, became law in July 1825.Footnote ⁷⁰

Thus, the introduction and passage of the East India Judges Act and Peel's Juries Act had encouraged Williams Wynn to inquiry into the role and function of juries in India. Even before the parliamentary exchange with Hume, however, Williams Wynn had already written to Alexander Johnston, former chief judge and president of the council in Ceylon, inquiring about the use of juries in Ceylon.Footnote ⁷¹ As one biographer has written, ‘under Johnston's impulse Ceylon led the vanguard of Indian reform’.Footnote ⁷² Among other things, Johnston introduced universal education, promoted the emancipation of slaves, and opened up offices in the British administration of the island to the employment of non-Europeans. Equally important, however, was the fact that in 1810 he had been able to secure from the British government a special charter for Ceylon permitting ‘natives’ and ‘half-castes’ to sit on juries in criminal trials, a plan that had been implemented in November 1811.Footnote ⁷³

In reply to Williams Wynn's letter of inquiry, Johnston explained in detail how jurors in Ceylon were identified, how juries were empanelled, and the role of the jury in a trial.Footnote ⁷⁴ Subsequently, Williams Wynn duly introduced his Juries in India Bill, which, without any significant debate, received the royal assent in May 1826.Footnote ⁷⁵ The lack of any discussion in either the Lords or the Commons reflected the very weak and anodyne content of the act. Unlike the practices introduced in Ceylon by Johnston, in which all freemen over the age of twenty-one were liable for jury service, jurors were selected by lot, and litigants permitted a limited number of peremptory challenges, Williams Wynn's Act merely provided for the eligibility of residents of Calcutta, Madras, and Bombay ‘to be deemed capable of serving as jurors on grand or petit juries’. The rules and regulations regarding qualifications for jury service, the process of selecting jurors, and the role of the jury in a trial all were left unspecified. These procedural issues were to be left to the courts in the respective presidency towns to decide.

While the Juries in India Act provoked little or no debate in parliament, there was some interest expressed outside of it. In particular, an interesting exchange appeared in the pages of The Oriental Herald and The Asiatic Journal that revolved specifically around the analogy often made between the English trial by jury and the Indian panchayat. The discussion was initiated by the publication of ‘System of punchayet, or Indian trial by jury’ in the March 1826 issue of the Oriental Herald. The anonymous author, most probably James Silk Buckingham, the journal's radical editor, reiterated many of the arguments that had previously been voiced by Munro and others: that the panchayat was the Indian equivalent of the English trial by jury, that it was an institution sanctioned by Indian law and custom, and that its existence bore witness to the fact that India possessed a common law tradition, a tradition that needed to be restored, reinvigorated, and reinforced by the British government rather than replaced by British courts and British law.Footnote ⁷⁶ The next month, however, a response appeared in The Asiatic Journal, the title of which clearly indicates not only the author's perspective, but also the continuing opacity of the panchayat to British observers. The letter to the editor, entitled ‘The punchayet, or Hindu form of arbitration’, denied any British culpability in undermining or superseding the ‘palladium of Indian liberty’, the latter phrase being an adaptation of the common aphorism used to describe the English trial by jury.Footnote ⁷⁷ Claiming that ‘the punchayet has not the least analogy’ to the English jury, the author insisted that ‘by whatever name the punchayet may be now perversely called, it is, in fact, but a species of arbitration’.Footnote ⁷⁸ Moreover, the author continued, under the Madras Code, litigants always had been permitted to submit voluntarily their disputes to the decision of a panchayat, but their manifest failure to do so was clear evidence of the lack of both support and ‘fond affection’ that Indian litigants had for the system.Footnote ⁷⁹

While the 1826 Act may have been anodyne in content, its application in the different presidencies was certainly less so. As was typical of the era, property qualifications for potential jurors were adopted in Madras, Bombay, and Bengal. Less typical, however, was the fact that potential jurors in Bombay and Madras were required to understand the English language; in Bengal, they were required to read, write, and understand English. Even more restrictive was the requirement adopted in all three presidencies that only Christians could serve on grand juries and that only Christians were allowed to sit on petty juries in cases involving Christian defendants. Regardless of these restrictions, in all of the presidencies, there still appeared to be a small opening for Indian participation as petty jurors in civil cases. However, this opportunity quickly closed. The separate Regulations adopted in Bombay, Bengal, and Madras provided that in cases brought before petty juries, at least one half of the jurors had to be legally defined British subjects; that is, they could not be ‘native subjects’. This nevertheless implied that one half of the petty jury could also be comprised of Indian subjects.Footnote ⁸⁰

However, even this situation was contested. Several years earlier, in 1819, the Board of Control had previously decided that Anglo-Indians, or half-castes, in Bengal were not eligible to serve on juries. The jury reforms being discussed in 1825 raised the issue once again and, in that year, the Bengal government asked for legal advice concerning the status of Anglo-Indians on juries under the forthcoming act. The question was therefore referred to J. B. Bosanquet, the Company solicitor, whose opinion was issued in January 1826. In that opinion, Bosanquet narrowly construed the term ‘British subject’ to mean not only that an individual's legal standing was determined solely by the father, but also that the male parent had to be British-born to be a ‘British subject’. Thus, an Anglo-Indian with a British father could sit on a jury, but descendants of a British mother and an Indian father could not. This restrictive definition meant, of course, that ‘no Native of the British Territories in India though a Subject of the King is qualified to serve on Juries’.Footnote ⁸¹ Indians were thus identified as ‘subjects’, but not ‘British subjects’.

Bosanquet's opinion quite clearly illustrates the way in which race and racial identities were being constructed in this period although it is also quite clear that unlike some lay opinion on race, which often sought to restrict or prohibit Indian civil participation based upon abstract ‘scientific’ theories of moral, mental, or physical degeneracy, Bosanquet's legal opinion was espoused in terms of what he called ‘the national character’. Of course, this concept in no way precludes racism, as the twentieth century would more than prove. However, it is equally possible, and perhaps even likely, that Bosanquet was expressing himself in the discourse of what Norbert Peabody has described as ‘Romantic nationalism’ rather than scientific racism.Footnote ⁸² Whichever the case, the intended effect was the same: all Indians and a significant portion of Anglo-Indians in Bengal were to be prohibited from serving on juries.

In practice, there appears to have been a very significant degree of variation in the extent to which Bosanquet's opinion was adopted outside of Bengal. In Bombay, for example, Sir Edward West, chief justice of the Supreme Court, political economist, and judicial reformer, opened petty juries to Indians shortly before his death in 1828.Footnote ⁸³ Robert Rickards, a former member of council in Bombay and later factory inspector in England, recalled that West ‘did the honour of permitting the natives into the petit jury; on which occasions the Europeans evinced their utmost displeasure of sitting with them; but the learned judge supported the natives’.Footnote ⁸⁴

Yet, even as the Bombay chief judge was acting to open the petty jury to Indian participation, at the same time, the governor of the Bombay presidency was acting to re-shape, and indeed undermine, the role and function of Indians in the civil judicial process. New judicial Regulations eventually passed in 1827 appear to have eliminated the jury's role as a finder of fact and refashioned the jury, panchayats, and special juries into mere judicial advisory boards.Footnote ⁸⁵ According to the new Regulations governing civil judicature, European judges were allowed to ‘derive assistance’ from ‘respectable natives’ in three ways: by convening a panchayat, by appointing assessors, or ‘more nearly as a jury’. The remit of the panchayat was to carry out the investigation of any ‘point or points’ at issue in the suit; the assessors, or special jurors, were to submit their opinions or observations to the court; and, what might be called the ‘near-jury’ to suggest ‘such points of inquiry as occur to them’. No jury comprised of Indians therefore was given the authority to determine the facts of a case and, moreover, ‘it is clearly to be understood’, the Regulation stated, ‘that under all modes of procedure described in the three preceding clauses, the decision is vested exclusively in the [European] authority presiding in the court’.

In the Madras presidency, as we have seen, Munro keenly supported the introduction of Indians on to criminal juries, civil justice having already been transferred to the optional purview of panchayats, but his death from cholera in July 1827 eventually halted its implementation.Footnote ⁸⁶ Munro's plan was adopted shortly after his death as Regulation x of 1827. Entitled ‘For the gradual introduction of Trial by Jury in the Criminal Judicature of the Territories subject to the presidency of Fort St. George’, the Regulation closely followed the procedures implemented by Alexander Johnston in Ceylon, including the selection of jurors by lot, payment of jurors, the permission of peremptory challenges, and, perhaps most notably, the absence of any property qualification.Footnote ⁸⁷ However, according to the later parliamentary testimony of Thomas Baber, a former senior judge of the Provincial Court of Appeals in the presidency, Munro's successors ‘did not think that the natives were morally fit to discharge the duty with integrity and impartiality’. Indeed, Stephen Lushington, Munro's successor as governor of Madras, expressed his dismay at ‘the precipitancy with which this great change in the administration had been introduced’ and immediately suspended the introduction of the Regulation in December 1827.Footnote ⁸⁸

One of the key supporters of Munro's plan, Henry Graeme, who had briefly been acting governor upon Munro's death and had been responsible for the adoption of Regulation x, subsequently asked for the opinion of Ram Raz, a Telugu Brahmin who was master of the College of Fort St George and later judge at Mysore.Footnote ⁸⁹ Ram Raz's letter, dated 10 May 1828, was a carefully worded account of ‘whether the Hindu law contemplates any mode of trial similar to [trial by jury]’.Footnote ⁹⁰ He contended that both sabhas, which he likened to a king's court or assembly, and panchayats, which he described as ‘popular tribunals’, were similar although not identical institutions to the English jury. Interestingly, he refused to define members of sabhas as jurors and instead consistently referred to them as ‘assessors’ thus making the sabha more akin to the English special jury rather than the common jury. Ram Raz appears to have preferred the term assessor to juror because it was commonly accepted that the sabha was composed exclusively of Brahmins, a perception that he sought to dispel in the letter.Footnote ⁹¹

Ram Raz admitted to knowing much less about the panchayat. ‘I have not been able to obtain much detailed information on the subject’, he wrote, ‘but, as far as I could collect, there is every reason to conclude, that popular tribunals once prevailed all over India, and still exist in many parts of the country’.Footnote ⁹² The scant amount of information that he did collect was drawn exclusively from Ram Raz's personal knowledge of the institution in Mysore and, ironically, from an extract of a report on panchayats in the Deccan that had been written by Mounstuart Elphinstone in 1819 and recently republished in the Asiatic Journal of 1827.Footnote ⁹³ Nevertheless, Ram Raz admired the idea of the panchayat because, unlike the sabha, its members were in some cases ‘composed of all classes of people indiscriminately’ and in others ‘of the same class as that to which the offender belongs’.Footnote ⁹⁴

However, Lushington, the governor of Madras, remained a determined opponent of the plan and prevented its implementation. A questionnaire he sent on the subject to fifteen sudder and circuit judges further revealed the almost unanimous opposition to Indian jurors among the British judiciary.Footnote ⁹⁵ In an 1828 minute on juries in India, Lushington approvingly quoted the British judges who resisted the implementation of Munro's Regulation because of the Indians' alleged propensity to religious fanaticism, superstition, caste prejudice, apathy, and corruption, among other things. With the support of his judicial officers, therefore, Lushington haughtily concluded that ‘I am sufficiently gratified in the reflection that I arrived in time to prevent the consummation of this pernicious change.’Footnote ⁹⁶

For the next several years, the subject lay dormant among parliamentarians and Company officials in both London and India. In 1831, however, the issue was revived in parliament once again by Charles Grant, later Baron Glenelg, who only recently had been appointed president of the Company's Board of Control.Footnote ⁹⁷ In September 1831, in the midst of the English Reform Bill Crisis, Grant indicated to the House of Commons that he intended to bring forward a bill to extend the right of Indians not only to serve on both grand juries and trials of Christians, but also to serve as justices of the peace.Footnote ⁹⁸ In the same sitting, Sir Charles Forbes and Joseph Hume submitted two petitions from thousands of residents of Bombay. Recognizing the success of Alexander Johnston's reforms in Ceylon as well as the ‘mere nominal benefits’ of the previous acts of parliament, the petitioners complained of the summary justice meted out by British judges, the lack of the protection of habeas corpus, and the ignorance and deficiencies of British judges. Together, these factors had ‘stamped upon the natives of India the character of a conquered, distinct, and degraded people’.Footnote ⁹⁹

The petitions requested the institution of trial by jury in all civil cases, extending the right to serve on grand juries to Hindus, Muslims, Parsis, and Jews, and the opening of the office of justice of the peace to all qualified residents.Footnote ¹⁰⁰ Furthermore, the petitioners expressed the ‘desire to coalesce with the Crown of the United Kingdoms’ and to ‘reward intellectual and moral merit with honourable and profitable offices’. Until this was done, the petitioners argued, ‘upwards of sixty millions of his Majesty's subjects are at this time disjointed, loose, and floating on the surface of India’.Footnote ¹⁰¹

The following year, British and Indian residents of Calcutta rallied to approve their own petition to parliament requesting the implementation of trial by jury.Footnote ¹⁰² The rally was addressed by Dwarkanath Tagore who may very well have been the first prominent Indian intellectual to assert publicly the analogy between the English jury and the Indian panchayat. The reporter, unfortunately, admitted to being ‘unable to collect the purport of his speech’, but surmised that ‘his remarks were in part directed to showing the similarity between the ancient Punchaut and the system of trial by jury’. Tagore's speech was followed by that of Charles Prinsep, a Calcutta barrister, who noted that the residents of Calcutta had previously petitioned for the introduction of trial by jury, but at that time ‘the institution of trial by jury was then considered peculiarly English, and the Natives of India took no interest in its introduction, but now they were found coming forward to demand it; they had discovered it was an improvement on the ancient system of Punchaut’.Footnote ¹⁰³

These petitions perhaps provided the impetus behind the intervention of Rammohan Roy in the debate on trial by jury. Rammohan, often referred to as the ‘the father of modern India’ for his advocacy of social, political, and religious reforms, was a crucial participant in what C. A. Bayly has called this ‘liberal constitutionalist moment’ when political reform movements in Europe and South America merged with those in India during the 1820s and 1830s.Footnote ¹⁰⁴ Rammohan's contribution, published in London in 1832, was perhaps more important for the fact that it was published in the metropole by an internationally respected reformer rather than for the fact that it contained any radically new insights or arguments.

Indeed Rammohan's discussion and prescriptions for the panchayat and trial by jury in India were far less radical than Johnston's policy implemented in Ceylon. His recommendations included the lifetime appointment of ‘native assessors’ to serve on the bench with European judges. As we have seen, however, assessors were expert advisers and thus his plan implied that they would have little or no judicial authority. He imagined instead that such an innovation would lead to a type of cultural exchange in which the assessors would supplement the European judges' lack of knowledge of the language, customs, and habits of the people while the judges would impart ‘the dignity and firmness of the European’ to the assessors.Footnote ¹⁰⁵ However, to avoid the undue influence of an assessor over a judge, the institution of trial by jury was a necessary bulwark against this type of corruption. Rammohan argued that the principle of trial by jury was ‘well understood in this country under the name Punchayet’.Footnote ¹⁰⁶ However, as currently practised, they functioned only as boards of arbitration and were needlessly subject to delay, corruption, and partiality.

In order to revive the panchayat, it had to be reconstructed or reimagined. In particular, the panchayat had to be ‘reduced to a regular system, guarded by proper checks, and dignified by judicial forms’.Footnote ¹⁰⁷ Panchayat juries should be limited to three or five members, trials should be in the vernacular, jury lists should be drawn up, limited peremptory challenges accepted, and the selection of jurors should be drawn by lot. However, unlike in Ceylon, Rammohan argued that in India Europeans should have the responsibility of drawing up the jury lists and that these lists should include only those ‘respectable and intelligent natives known to be versed in judicial subjects’, such as retired vakils or retired judicial officers.Footnote ¹⁰⁸ In effect, the panchayat system imagined by Rammohan was one based on English practices, directed by colonial officials, and staffed only by local elites.

V

Professor Bayly has recently traced the course of the debate on trial by jury in the context of the development of Indian political liberalism. He has noted the critical intervention in these debates of members of the first generation of Indian liberals, especially Rammohan Roy and Ram Raz, who were ‘among the first to elaborate a politicised historicism of the Indian past to argue for Indian rights in the present’.Footnote ¹⁰⁹ As Bayly has suggested, liberal historicism was a discourse that appealed to an imagined past, a past that, in one form or another, was possessed of institutions that were based upon civic freedoms and liberties rather than despotism and arbitrary government.Footnote ¹¹⁰ While the liberal historicism of Rammohan and Ram Raz may have differed only in degree rather than kind from the Enlightenment historicism of Orientalists such as Munro and Elphinstone, what was new was the active participation of Indian liberals in the debate. For both Rammohan and Ram Raz, in many ways like Munro and Elphinstone before them, the resurrection or revivification of the panchayat, imagined as a jury, was a key element in the building of an Indian civil society.

Later generations of Indian nationalists and British Liberals would reimagine the panchayat in different ways with different functions and in different forms. Like the English jury, the panchayat and panchayati raj became a fundamental element of a national ideology and identity. Of course, the panchayat as an iconic symbol did not emerge fully fledged ab ovo. Like other identities, it emerged within a context of struggle, contestation, suppression, and adaptation. In this case, however, the context was both personal and imperial.