The Works of the Right Honourable Edmund Burke, Vol. 08 (of 12)

Your Committee find that in March, 1775, a petition was presented to the Governor-General and Council by a person called Coja Kaworke, an Armenian merchant, resident at Dacca, (of which division Mr. Richard Barwell had lately been Chief,) setting forth in substance, that in November, 1772, the petitioner had farmed a certain salt district, called Savagepoor, and had entered into a contract with the Committee of Circuit for providing and delivering to the India Company the salt produced in that district; that in 1773 he farmed another, called Selimabad, on similar conditions. He alleges, that in February, 1774, when Mr. Barwell arrived at Dacca, he charged the petitioner with 1,25,500 rupees, (equal to 13,000l.,) as a contribution, and, in order to levy it, did the same year deduct 20,799 rupees from the amount of the advance money which was ordered to be paid to the petitioner, on account of the India Company, for the provision of salt in the two farms, and, after doing so, compelled the petitioner to execute and give him four different bonds for 77,627 rupees, in the name of one Porran Paul, for the remainder of such contribution, or unjust profit.

Such were the allegations of the petition relative to the unjust exaction. The harsh means of compelling the payment make another and very material part; for the petitioner asserts, that, in order to recover the amount of these bonds, guards were placed over him, and that Mr. Barwell by ill usage and oppressions recovered from him at different times 48,656 Arcot rupees, besides 283 rupees extorted by the guard,—that, after this payment, two of the bonds, containing 36,313 rupees, were restored to him, and he was again committed to the charge of four peons, or guards, to pay the amount of the remaining two bonds. The petition further charges, that the said gentleman and his people had also extorted from the petitioner other sums of money, which, taken together, amounted to 25,000 rupees.

But the heaviest grievance alleged by him is, that, after the sums of money had been extorted on account of the farms, the faith usual in such transactions is allowed not to have been kept; but, after the petitioner had been obliged to buy or compound for the farms, that they were taken from him,—"that the said Richard Barwell, Esquire, about his departure from Dacca, in October, 1774, for self-interest wrested from the petitioner the aforesaid two mahls, (or districts,) and farmed them to another person, notwithstanding he had extorted from the petitioner a considerable sum of money on account of those purgunnahs."

To this petition your Committee find two accounts annexed, in which the sums said to be paid to or taken by Mr. Barwell, and the respective dates of the several payments, are specified; and they find that the account of particulars agrees with and makes up the gross sum charged in the petition.

Mr. Barwell's immediate answer to the preceding charge is contained in two letters to the board, dated 23rd and 24th of March, 1775. The answer is remarkable. He asserts, that "the whole of Kaworke's relation is a gross misrepresentation of facts;—that the simple fact was, that in January, 1774, the salt mahls of Savagepoor and Selimabad became his, and were re-let by him to this man, in the names of Bussunt Roy and Kissen Deb, on condition that he should account with him [Mr. Barwell] for profits to a certain sum, and that he [Mr. Barwell] engaged for Savagepoor in the persuasion of its being a very profitable farm"; and he concludes with saying, "If I am mistaken in my reasoning, and the wish to add to my fortune has warped my judgment, in a transaction that may appear to the board in a light different to what I view it in, it is past,—I cannot recall it,—and I rather choose to admit an error than deny a fact." In his second letter he says, "To the Honorable Court of Directors I will submit all my rights in the salt contracts I engaged in; and if in their opinion those rights vest in the Company, I will account to them for the last shilling I have received from such contracts, my intentions being upright; and as I never did wish to profit myself to the prejudice of my employers, by their judgment I will be implicitly directed."

The majority of the board desired that Kaworke's petition should be transmitted to England by the ship then under dispatch; and it was accordingly sent with Mr. Barwell's replies. Mr. Barwell moved that a committee should be appointed to take into consideration what he had to offer on the subject of Kaworke's petition; and a committee was accordingly appointed, consisting of all the members of the Council except the Governor-General.

The committee opened their proceedings with reading a second petition from Kaworke, containing corrected accounts of cash said to be forcibly taken, and of the extraordinary and unwarrantable profits taken or received from him by Richard Barwell, Esquire; all which are inserted at large in the Appendix. By these accounts Mr. Barwell is charged with a balance or debt of 22,421 rupees to Kaworke. The principal difference between him and Mr. Barwell arises from a different mode of stating the accounts acknowledged to exist between them. In the account current signed by Mr. Barwell, he gives Kaworke credit for the receipt of 98,426 rupees, and charges him with a balance of 27,073 rupees.

The facts stated or admitted by Mr. Barwell are as follow: that the salt farms of Selimabad and Savagepoor were his, and re-let by him to the two Armenian merchants, Michael and Kaworke, on condition of their paying him 1,25,000 rupees, exclusive of their engagements to the Company; that the engagement was written in the name of Bussunt Roy and Kissen Deb Sing; and Mr. Barwell says, that the reason of its being "in these people's names was because it was not thought consistent with the public regulations that the names of any Europeans should appear."

It is remarkable that this policy was carried to still greater length. Means were used to remove such an obnoxious proceeding, as far as possible, from the public eye; and they were such as will strongly impress the House with the facility of abuse and the extreme difficulty of detection in everything which relates to the Indian administration. For these substituted persons were again represented by the further substitution of another name, viz., Rada Churn Dey, whom Mr. Barwell asserts to be a real person living at Dacca, and who stood for the factory of Dacca; whereas the Armenian affirms that there was no such person as Rada Churn, and that it was a fictitious name.

Mr. Barwell, in his justification, proceeds to affirm, that Coja Kaworke never had the management of the salt mahls, "but on condition of accounting to the former Chief, and to Mr. Barwell, for a specified advantage arising from them,—that Mr. Barwell determined, without he could reconcile the interests of the public with his own private emoluments, that he would not engage in this concern,—and that, when he took an interest in it, it was for specified benefit in money, and every condition in the public engagement to be answered."

Your Committee have stated the preceding facts in the same terms in which they are stated by Mr. Barwell. The House is to judge how far they amount to a defence against the charges contained in Kaworke's petition, or to an admission of the truth of the principal part of it. Mr. Barwell does not allow that compulsion was used to extort the money which he received from the petitioner, or that the latter was dispossessed of the farms in consequence of an offer made to Mr. Barwell by another person (Ramsunder Paulet) to pay him a lac of rupees more for them. The truth of these charges has not been ascertained. They were declared by Mr. Barwell to be false, but no attempt was made by him to invalidate or confute them, though it concerned his reputation, and it was his duty, in the station wherein he was placed, that charges of such a nature should have been disproved,—at least, the accuser should have been pushed to the proof of them. Nothing of this kind appears to have been done, or even attempted.

The transaction itself, as it stands, is clearly collusive; the form in which it is conducted is clandestine and mysterious in an extraordinary degree; and the acknowledged object of it a great illicit profit, to be gained by an agent and trustee of the Company at the expense of his employers, and of which he confesses he has received a considerable part.

The committee of the Governor-General and Council appear to have closed their proceedings with several resolutions, which, with the answers given by Mr. Barwell as a defence, are inserted in the Appendix. The whole are referred thither together, on account of the ample extent of the answer. These papers will be found to throw considerable light not only on the points in question, but on the general administration of the Company's revenues in Bengal. On some passages in Mr. Barwell's defence, or account of his conduct, your Committee offer the following remarks to the judgment of the House.

In his letter of the 23rd March, 1775, he says, that he engaged for Savagepoor in the persuasion of its being a very profitable farm. In this place your Committee think it proper to state the 17th article of the regulations of the Committee of Circuit, formed in May, 1772, by the President and Council, of which Mr. Barwell was a member, together with their own observations thereupon.

17th. "That no peshcar, banian, or other servant, of whatever denomination, of the collector, or relation or dependant of any such servant, be allowed to farm lands, nor directly or indirectly to hold a concern in any farm, nor to be security for any farmer; that the collector be strictly enjoined to prevent such practices; and that, if it shall be discovered that any one, under a false name, or any kind of collusion, hath found means to evade this order, he shall be subject to an heavy fine, proportionate to the amount of the farm, and the farm shall be re-let, or made khas: and if it shall appear that the collector shall have countenanced, approved, or connived at a breach of this regulation, he shall stand ipso facto dismissed from his collectorship. Neither shall any European, directly or indirectly, be permitted to rent lands in any part of the country."

Remark by the Board

17th. "If the collector, or any persons who partake of his authority, are permitted to be the farmers of the country, no other persons will dare to be their competitors: of course they will obtain the farms on their own terms. It is not fit that the servants of the Company should be dealers with their masters. The collectors are checks on the farmers. If they themselves turn farmers, what checks can be found for them? What security will the Company have for their property, or where are the ryots to look for relief against oppressions?"

The reasons assigned for the preceding regulation seem to your Committee to be perfectly just; but they can by no means be reconciled to those which induced Mr. Barwell to engage in the salt farms of Selimabad and Savagepoor. In the first place, his doing so is at length a direct and avowed, though at first a covert, violation of the public regulation, to which he was himself a party as a member of the government, as well as an act of disobedience to the Company's positive orders on this subject. In their General Letter of the 17th May, 1766, the Court of Directors say, "We positively order, that no covenanted servant, or Englishman residing under our protection, shall be suffered to hold any land for his own account, directly or indirectly, in his own name or that of others, or to be concerned in any farms or revenues whatsoever."

Secondly, if, instead of letting the Company's lands or farms to indifferent persons, their agent or trustee be at liberty to hold them himself, he will always (on principles stated and adhered to in the defence) have a sufficient reason for farming them on his own account, since he can at all times make them as profitable as he pleases; or if he leases them to a third person, yet reserves an intermediate profit for himself, that profit may be as great as he thinks fit, and must be necessarily made at the Company's expense. If at the same time he be collector of the revenues, it will be his interest to recommend remissions in favor of the nominal farmer, and he will have it in his power to sink the amount of his collections.

These principles, and the correspondent practices, leave the India Company without any security that all the leases of the lands of Bengal may not have been disposed of, under that administration which made the five years' settlement in 1772, in the same manner and for the same purpose.

To enable the House to judge how far this apprehension may be founded, it will be proper to state, that Mr. Nicholas Grueber, who preceded Mr. Barwell in the Chiefship of Dacca, in a letter dated 29th of April, 1775, declares that he paid to the Committee of Circuit twelve thousand rupees as their profit on a single salt farm,—which sum, he says, "I paid the Committee at their request, before their departure from Dacca, and reimbursed myself out of the advances directed to be issued for the provision of the salt." Thus one illicit and mischievous transaction always leads to another; and the irregular farming of revenue brings on the misapplication of the commercial advances.

Mr. Barwell professes himself to be sensible "that a wish to add to his fortune may possibly have warped his judgment, and that he rather chooses to admit an error than deny a fact." But your Committee are of opinion that the extraordinary caution and the intricate contrivances with which his share in this transaction is wrapped up form a sufficient proof that he was not altogether misled in his judgment; and though there might be some merit in acknowledging an error before it was discovered, there could be very little in a confession produced by previous detection.

The reasons assigned by Mr. Barwell, in defence of the clandestine part of this transaction, seem to your Committee to be insufficient in themselves, and not very fit to be urged by a man in his station. In one place he says, that "it was not thought consistent with the public regulations that the names of any Europeans should appear." In another he says, "I am aware of the objection that has been made to the English taking farms under the names of natives, as prohibited by the Company's orders; and I must deviate a little upon this. It has been generally understood that the scope and tendency of the Honorable Company's prohibition of farms to Europeans was meant only to exclude such as could not possibly, in their own persons, come under the jurisdiction of the Duanné courts of Adawlet, because, upon any failure of engagements, upon any complaint of unjust oppression, or other cause of discontent whatever, it was supposed an European might screen himself from the process of the country judicature. But it was never supposed that an European of credit and responsibility was absolutely incapable from holding certain tenures under the sanction and authority of the country laws, or from becoming security for such native farmers, contractors, &c., &c., as he might protect and employ."

Your Committee have opposed this construction of Mr. Barwell's to the positive order which the conduct it is meant to color has violated. "Europeans of credit and responsibility," that is, Europeans armed with wealth and power, and exercising offices of authority and trust, instead of being excepted from the spirit of the restriction, must be supposed the persons who are chiefly meant to be comprehended in it; for abstract the idea of an European from the ideas of power and influence, and the restriction is no longer rational.

Your Committee are therefore of opinion that the nature of the evil which was meant to be prevented by the above orders and regulations was not altered, or the evil itself diminished, by the collusive methods made use of to evade them,—and that, if the regulations were proper, (as they unquestionably were,) they ought to have been punctually complied with, particularly by the members of the government, who formed the plan, and who, as trustees of the Company, were especially answerable for their being duly carried into execution. Your Committee have no reason to believe that it could ever have been generally understood "that the Company's prohibition of farms to Europeans was meant only to exclude such as could not possibly, in their own persons, come under the jurisdiction of the Duanné courts": no such restriction is so much as hinted at. And if it had been so understood, Mr. Barwell was one of the persons who, from their rank, station, and influence, must have been the principal objects of the prohibition. Since the establishment of the Company's influence in Bengal, no Europeans, of any rank whatever, have been subject to the process of the country judicature; and whether they act avowedly for themselves, and take farms in their own name, or substitute native Indians to act for them, the difference is not material. The same influence that screened an European from the jurisdiction of the country courts would have equally protected his native agent and representative. For many years past the Company's servants have presided in those courts, and in comparison with their authority the native authority is nothing.

The earliest instructions that appear to have been given by the Court of Directors in consequence of these transactions in Bengal are dated the 5th of February, 1777. In their letter of that date they applaud the proceedings of the board, meaning the majority, (then consisting of General Clavering, Colonel Monson, and Mr. Francis,) as highly meritorious, and promise them their firmest support. "Some of the cases" they say, "are so flagrantly corrupt, and others attended with circumstances so oppressive to the inhabitants, that it would be unjust to suffer the delinquents to go unpunished." With this observation their proceedings appear to have ended, and paused for more than a year.

On the 4th of March, 1778, the Directors appear to have resumed the subject. In their letter of that date they instructed the Governor and Council forthwith to commence a prosecution in the Supreme Court of Judicature against the persons who composed the Committee of Circuit, or their representatives, and also against Mr. Barwell, in order to recover, for the use of the Company, the amount of all advantages acquired by them from their several engagements in salt contracts and farms. Adverting, however, to the declaration made by Mr. Barwell, that he would account to the Court of Directors for the last shilling he had received and abide implicity by their judgment, they thought it probable, that, on being acquainted with their peremptory orders for commencing a prosecution, he might be desirous of paying his share of profits into the Company's treasury; and they pointed out a precaution to be used in accepting such a tender on his part.

On this part of the transaction your Committee observe, that the Court of Directors appear blamable in having delayed till February, 1777, to take any measure in consequence of advices so interesting and important, and on a matter concerning which they had made so strong a declaration,—considering that early in April, 1776, they say "they had investigated the charges, and had then come to certain resolutions concerning them." But their delaying to send out positive orders for commencing a prosecution against the parties concerned till March, 1778, cannot be accounted for. In the former letter they promise, if they should find it necessary, to return the original covenants of such of their servants as had been any ways concerned in the undue receipt of money, in order to enable the Governor-General and Council to recover the same by suits in the Supreme Court. But your Committee do not find that the covenants were ever transmitted to Bengal. To whatever cause these instances of neglect and delay may be attributed, they could not fail to create an opinion in Bengal that the Court of Directors were not heartily intent upon the execution of their own orders, and to discourage those members of government who were disposed to undertake so invidious a duty.

In consequence of these delays, even their first orders did not arrive in Bengal until some time after the death of Colonel Monson, when the whole power of the board had devolved to Mr. Hastings and Mr. Barwell. When they sent what they call their positive orders, in March, 1778, they had long been apprised of the death of Colonel Monson, and must have been perfectly certain of the effect which that event would have on the subsequent measures and proceedings of the Governor-General and Council. Their opinion of the principles of those gentlemen appears in their letter of the 28th of November, 1777, wherein they say "they cannot but express their concern that the power of granting away their property in perpetuity should have devolved upon such persons."

But the conduct of the Court of Directors appears to be open to objections of a nature still more serious and important. A recovery of the amount of Mr. Barwell's profits seems to be the only purpose which they even professed to have in view. But your Committee are of opinion that to preserve the reputation and dignity of the government of Bengal was a much more important object, and ought to have been their first consideration. The prosecution was not the pursuit of mean and subordinate persons, who might with safety to the public interest remain in their seats during such an inquiry into their conduct. It appears very doubtful, whether, if there were grounds for such a prosecution, a proceeding in Great Britain were not more politic than one in Bengal. Such a prosecution ought not to have been ordered by the Directors, but upon grounds that would have fully authorized the recall of the gentleman in question. This prosecution, supposing it to have been seriously undertaken, and to have succeeded, must have tended to weaken the government, and to degrade it in the eyes of all India. On the other hand, to intrust a man, armed as he was with all the powers of his station, and indeed of the government, with the conduct of a prosecution against himself, was altogether inconsistent and absurd. The same letter in which they give these orders exhibits an example which sets the inconsistency of their conduct in a stronger light, because the case is somewhat of a similar nature, but infinitely less pressing in its circumstances. Observing that the Board of Trade had commenced a prosecution against Mr. William Barton, a member of that board, for various acts of peculation committed by him, they say, "We must be of opinion, that, as prosecutions are actually carrying on against him by our Board of Trade, he is, during such prosecution at least, an improper person to hold a seat at that board; and therefore we direct that he be suspended from the Company's service until our further pleasure concerning him be known." The principle laid down in this instruction, even before their own opinion concerning Mr. Barton's case was declared, and merely on the prosecution of others, serves to render their conduct not very accountable in the case of Mr. Barwell. Mr. Barton was in a subordinate situation, and his remaining or not remaining in it was of little or no moment to the prosecution. Mr. Barton was but one of seven; whereas Mr. Barwell was one of four, and, with the Governor-General, was in effect the Supreme Council.

In the present state of power and patronage in India, and during the relations which are permitted to subsist between the judges, the prosecuting officers, and the Council-General, your Committee is very doubtful whether the mode of prosecuting the highest members in the Bengal government, before a court at Calcutta, could have been almost in any case advisable.

It is possible that particular persons, in high judicial and political situations, may, by force of an unusual strain of virtue, be placed far above the influence of those circumstances which in ordinary cases are known to make an impression on the human mind. But your Committee, sensible that laws and public proceedings ought to be made for general situations, and not for personal dispositions, are not inclined to have any confidence in the effect of criminal proceedings, where no means are provided for preventing a mutual connection, by dependencies, agencies, and employments, between the parties who are to prosecute and to judge and those who are to be prosecuted and to be tried.