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

Your Committee, in a former Report, have stated the consequences which they apprehended from the dependency of the judges on the Governor-General and Council of Bengal; and the House has entered into their ideas upon this subject. Since that time it appears that Sir Elijah Impey has accepted of the guardianship of Mr. Barwell's children, and was the trustee for his affairs. There is no law to prevent this sort of connection, and it is possible that it might not at all affect the mind of that judge, or (upon his account) indirectly influence the conduct of his brethren; but it must forcibly affect the minds of those who have matter of complaint against government, and whose cause the Court of Directors appear to espouse, in a country where the authority of the Court of Directors has seldom been exerted but to be despised, where the operation of laws is but very imperfectly understood, but where men are acute, sagacious, and even suspicious of the effect of all personal connections. Their suspicions, though perhaps not rightly applied to every individual, will induce them to take indications from the situations and connections of the prosecuting parties, as well as of the judges. It cannot fail to be observed, that Mr. Naylor, the Company's attorney, lived in Mr. Barwell's house; the late Mr. Bogle, the Company's commissioner of lawsuits, owed his place to the patronage of Mr. Hastings and Mr. Barwell, by whom the office was created for him; and Sir John Day, the Company's advocate, who arrived in Bengal in February, 1779, had not been four months in Calcutta, when Mr. Hastings, Mr. Barwell, and Sir Eyre Coote doubled his salary, contrary to the opinion of Mr. Francis and Mr. Wheler.

If the Directors are known to devolve the whole cognizance of the offences charged on their servants so highly situated upon the Supreme Court, an excuse will be furnished, if already it has not been furnished, to the Directors for declining the use of their own proper political power and authority in examining into and animadverting on the conduct of their servants. Their true character, as strict masters and vigilant governors, will merge in that of prosecutors. Their force and energy will evaporate in tedious and intricate processes,—in lawsuits which can never end, and which are to be carried on by the very dependants of those who are under prosecution. On their part, these servants will decline giving satisfaction to their masters, because they are already before another tribunal; and thus, by shifting responsibility from hand to hand, a confederacy to defeat the whole spirit of the law, and to remove all real restraints on their actions, may be in time formed between the servants, Directors, prosecutors, and court. Of this great danger your Committee will take farther notice in another place.

No notice whatever appears to have been taken of the Company's orders in Bengal till the 11th of January, 1779, when Mr. Barwell moved, that the claim made upon him by the Court of Directors should be submitted to the Company's lawyers, and that they should be perfectly instructed to prosecute upon it. In his minute of that date he says, "that the state of his health had long since rendered it necessary for him to return to Europe."

Your Committee observe that he continued in Bengal another year. He says, "that he had hitherto waited for the arrival of Sir John Day, the Company's advocate; but as the season was now far advanced, he wished to bring the trial speedily to issue."

In this minute he retracts his original engagement to submit himself to the judgment of the Court of Directors, "and to account to them for the last shilling he had received": he says, "that no merit had been given him for the offer; that a most unjustifiable advantage had been attempted to be made of it, by first declining it and descending to abuse, and then giving orders upon it as if it had been rejected, when called upon by him in the person of his agent to bring home the charge of delinquency."

Mr. Barwell's reflections on the proceedings of the Court of Directors are not altogether clearly expressed; nor does it appear distinctly to what facts he alludes. He asserts that a most unjustifiable advantage had been attempted to be made of his offer. The fact is, the Court of Directors have nowhere declined accepting it; on the contrary, they caution the Governor-General and Council about the manner of receiving the tender of the money which they expect him to make. They say nothing of any call made on them by Mr. Barwell's agent in England; nor does it appear to your Committee that they "have descended to abuse." They have a right, and it is their duty, to express, in distinct and appropriated terms, their sense of all blamable conduct in their servants.

So far as may be collected from the evidence of the Company's records, Mr. Barwell's assertions do not appear well supported; but even if they were more plausible, your Committee apprehend that he could not be discharged from his solemn recorded promise to abide by the judgment of the Court of Directors. Their judgment was declared by their resolution to prosecute, which it depended upon himself to satisfy by making good his engagement. To excuse his not complying with the Company's claims, he says, "that his compliance would be urged as a confession of delinquency, and to proceed from conviction of his having usurped on the rights of the Company." Considerations of this nature might properly have induced Mr. Barwell to stand upon his right in the first instance, "and to appeal" (to use his own words) "to the laws of his country, in order to vindicate his fame." But his performance could not have more weight to infer delinquency than his promise. Your Committee think his observation comes too late.

If he had stood a trial, when he first acknowledged the facts, and submitted himself to the judgment of the Court of Directors, the suit would have been carried on under the direction of General Clavering, Colonel Monson, and Mr. Francis; whereas in the year 1779 his influence at the board gave him the conduct of it himself. In an interval of four years it may be presumed that great alterations might have happened in the state of the evidence against him.

In the subsequent proceedings of the Governor-General and Council the House will find that Mr. Barwell complained that his instances for carrying on the prosecution were ineffectual, owing to the legal difficulties and delays urged by the Company's law officers, which your Committee do not find have yet been removed. As far as the latest advices reach, no progress appears to have been made in the business. In July, 1782, the Court of Directors found it necessary to order an account of all suits against Europeans depending in the Supreme Court of Judicature to be transmitted to them, and that no time should be lost in bringing them to a determination.

SALTPETRE

The next article of direct monopoly subservient to the Company's export is saltpetre. This, as well as opium, is far the greater part the produce of the province of Bahar. The difference between the management and destination of the two articles has been this. Until the year 1782, the opium has been sold in the country, and the produce of the sale laid out in country merchandise for the Company's export. A great part of the saltpetre is sent out in kind, and never has contributed to the interior circulation and commerce of Bengal. It is managed by agency on the Company's account. The price paid to the manufacturer is invariable. Some of the larger undertakers receive advances to enable them to prosecute their work; but as they are not always equally careful or fortunate, it happens that large balances accumulate against them. Orders have been sent from Calcutta from time to time to recover their balances, with little or no success, but with great vexation to all concerned in the manufacture. Sometimes they have imprisoned the failing contractors in their own houses,—a severity which answers no useful purpose. Such persons are so many hands detached from the improvement and added to the burden of the country. They are persons of skill drawn from the future supply of that monopoly in favor of which they are prosecuted. In case of the death of the debtor, this rigorous demand falls upon the ruined houses of widows and orphans, and may be easily converted into a means either of cruel oppression or a mercenary indulgence, according to the temper of the exactors. Instead of thus having recourse to imprisonment, the old balance is sometimes deducted from the current produce. This, in these circumstances, is a grievous discouragement. People must be discouraged from entering into a business, when, the commodity being fixed to one invariable standard and confined to one market, the best success can be attended only with a limited advantage, whilst a defective produce can never be compensated by an augmented price. Accordingly, very little of these advances has been recovered, and after much vexation the pursuit has generally been abandoned. It is plain that there can be no life and vigor in any business under a monopoly so constituted; nor can the true productive resources of the country, in so large an article of its commerce, ever come to be fully known.

The supply for the Company's demand in England has rarely fallen short of two thousand tons, nor much exceeded two thousand five hundred. A discretionary allowance of this commodity has been made to the French, Dutch, and Danes, who purchase their allotted shares at some small advance on the Company's price. The supply destined for the London market is proportioned to the spare tonnage; and to accommodate that tonnage, the saltpetre is sometimes sent to Madras and sometimes even to Bombay, and that not unfrequently in vessels expressly employed for the purpose.

Mr. Law, Chief of Patna, being examined on the effect of that monopoly, delivered his opinion, that with regard to the Company's trade the monopoly was advantageous, but as sovereigns of the country they must be losers by it. These two capacities in the Company are found in perpetual contradiction. But much doubt may arise whether this monopoly will be found advantageous to the Company either in the one capacity or the other. The gross commodity monopolized for sale in London is procured from the revenues in Bengal; the certain is given for the hazardous. The loss of interest on the advances, sometimes the loss of the principal,—the expense of carriage from Patna to Calcutta,—the various loadings and unloadings, and insurance (which, though borne by the Company, is still insurance),—the engagement for the Ordnance, limited in price, and irregular in payment,—the charge of agency and management, through all its gradations and successions,—when all these are taken into consideration, it may be found that the gain of the Company as traders will be far from compensating their loss as sovereigns. A body like the East India Company can scarcely, in any circumstance, hope to carry on the details of such a business, from its commencement to its conclusion, with any degree of success. In the subjoined estimate of profit and loss, the value of the commodity is stated at its invoice price at Calcutta. But this affords no just estimate of the whole effect of a dealing, where the Company's charge commences in the first rudiments of the manufacture, and not at the purchase at the place of sale and valuation: for they [there?] may be heavy losses on the value at which the saltpetre is estimated, when, shipped off on their account, without any appearance in the account; and the inquiries of your Committee to find the charges on the saltpetre previous to the shipping have been fruitless.

BRITISH GOVERNMENT IN INDIA

The other link by which India is bound to Great Britain is the government established there originally by the authority of the East India Company, and afterwards modified by Parliament by the acts of 1773 and 1780. This system of government appears to your Committee to be at least as much disordered, and as much perverted from every good purpose for which lawful rule is established, as the trading system has been from every just principle of commerce. Your Committee, in tracing the causes of this disorder through its effects, have first considered the government as it is constituted and managed within itself, beginning with its most essential and fundamental part, the order and discipline by which the supreme authority of this kingdom is maintained.

The British government in India being a subordinate and delegated power, it ought to be considered as a fundamental principle in such a system, that it is to be preserved in the strictest obedience to the government at home. Administration in India, at an immense distance from the seat of the supreme authority,—intrusted with the most extensive powers,—liable to the greatest temptations,—possessing the amplest means of abuse,—ruling over a people guarded by no distinct or well-ascertained privileges, whose language, manners, and radical prejudices render not only redress, but all complaint on their part, a matter of extreme difficulty,—such an administration, it is evident, never can be made subservient to the interests of Great Britain, or even tolerable to the natives, but by the strictest rigor in exacting obedience to the commands of the authority lawfully set over it.

But your Committee find that this principle has been for some years very little attended to. Before the passing the act of 1773, the professed purpose of which was to secure a better subordination in the Company's servants, such was the firmness with which the Court of Directors maintained their authority, that they displaced Governor Cartier, confessedly a meritorious servant, for disobedience of orders, although his case was not a great deal more than a question by whom the orders were to be obeyed.12 Yet the Directors were so sensible of the necessity of a punctual and literal obedience, that, conceiving their orders went to the parties who were to obey, as well as to the act to be done, they proceeded with a strictness that, in all cases except that of their peculiar government, might well be considered as rigorous. But in proportion as the necessity of enforcing obedience grew stronger and more urgent, and in proportion to the magnitude and importance of the objects affected by disobedience, this rigor has been relaxed. Acts of disobedience have not only grown frequent, but systematic; and they have appeared in such instances, and are manifested in such a manner, as to amount, in the Company's servants, to little less than absolute independence, against which, on the part of the Directors, there is no struggle, and hardly so much as a protest to preserve a claim.

Before your Committee proceed to offer to the House their remarks on the most distinguished of these instances, the particulars of which they have already reported, they deem it necessary to enter into some detail of a transaction equally extraordinary and important, though not yet brought into the view of Parliament, which appears to have laid the foundation of the principal abuses that ensued, as well as to have given strength and encouragement to those that existed. To this transaction, and to the conclusions naturally deducible from it, your Committee attribute that general spirit of disobedience and independence which has since prevailed in the government of Bengal.

Your Committee find that in the year 1775 Mr. Lauchlan Macleane was sent into England as agent to the Nabob of Arcot and to Mr. Hastings. The conduct of Mr. Hastings, in assisting to extirpate, for a sum of money to be paid to the Company, the innocent nation of the Rohillas, had drawn upon him the censure of the Court of Directors, and the unanimous censure of the Court of Proprietors. The former had even resolved to prepare an application to his Majesty for Mr. Hastings's dismission.

Another General Court was called on this proceeding. Mr. Hastings was then openly supported by a majority of the Court of Proprietors, who professed to entertain a good opinion of his general ability and rectitude of intention, notwithstanding the unanimous censure passed upon him. In that censure they therefore seemed disposed to acquiesce, without pushing the matter farther. But, as the offence was far from trifling, and the condemnation of the measure recent, they did not directly attack the resolution of the Directors to apply to his Majesty, but voted in the ballot that it should be reconsidered. The business therefore remained in suspense, or it rather seemed to be dropped, for some months, when Mr. Macleane took a step of a nature not in the least to be expected from the condition in which the cause of his principal stood, which was apparently as favorable as the circumstances could bear. Hitherto the support of Mr. Hastings in the General Court was only by a majority; but if on application from the Directors he should be removed, a mere majority would not have been sufficient for his restoration. The door would have been barred against his return to the Company's service by one of the strongest and most substantial clauses in the Regulating Act of 1778. Mr. Macleane, probably to prevent the manifest ill consequences of such a step, came forward with a letter to the Court of Directors, declaring his provisional powers, and offering on the part of Mr. Hastings an immediate resignation of his office.

On this occasion the Directors showed themselves extremely punctilious with regard to Mr. Macleane's powers. They probably dreaded the charge of becoming accomplices to an evasion of the act by which Mr. Hastings, resigning the service, would escape the consequences attached by law to a dismission; they therefore demanded Mr. Macleane's written authority. This he declared he could not give into their hands, as the letter contained other matters, of a nature extremely confidential, but that, if they would appoint a committee of the Directors, he would readily communicate to them the necessary parts of the letter, and give them perfect satisfaction with regard to his authority. A deputation was accordingly named, who reported that they had seen Mr. Hastings's instructions, contained in a paper in his own handwriting, and that the authority for the act now done by Mr. Macleane was clear and sufficient. Mr. Vansittart, a very particular friend of Mr. Hastings, and Mr. John Stewart, his most attached and confidential dependant, attended on this occasion, and proved that directions perfectly correspondent to this written authority had been given by Mr. Hastings in their presence. By this means the powers were fully authenticated; but the letter remained safe in Mr. Macleane's hands.

Nothing being now wanting to the satisfaction of the Directors, the resignation was formally accepted. Mr. Wheler was named to fill the vacancy, and presented for his Majesty's approbation, which was received. The act was complete, and the office that Mr. Hastings had resigned was legally filled. This proceeding was officially notified in Bengal, and General Clavering, as senior in Council, was in course to succeed to the office of Governor-General.

Mr. Hastings, to extricate himself from the difficulties into which this resignation had brought him, had recourse to one of those unlooked-for and hardy measures which characterize the whole of his administration. He came to a resolution of disowning his agent, denying his letter, and disavowing his friends. He insisted on continuing in the execution of his office, and supported himself by such reasons as could be furnished in such a cause. An open schism instantly divided the Council. General Clavering claimed the office to which he ought to succeed, and Mr. Francis adhered to him: Mr. Barwell stuck to Mr. Hastings. The two parties assembled separately, and everything was running fast into a confusion which suspended government, and might very probably have ended in a civil war, had not the judges of the Supreme Court, on a reference to them, settled the controversy by deciding that the resignation was an invalid act, and that Mr. Hastings was still in the legal possession of his place, which had been actually filled up in England. It was extraordinary that the nullity of this resignation should not have been discovered in England, where the act authorizing the resignation then was, where the agent was personally present, where the witnesses were examined, and where there was and could be no want of legal advice, either on the part of the Company or of the crown. The judges took no light matter upon them in superseding, and thereby condemning the legality of his Majesty's appointment: for such it became by the royal approbation.

On this determination, such as it was, the division in the meeting, but not in the minds of the Council, ceased. General Clavering uniformly opposed the conduct of Mr. Hastings to the end of his life. But Mr. Hastings showed more temper under much greater provocations. In disclaiming his agent, and in effect accusing him of an imposture the most deeply injurious to his character and fortune, and of the grossest forgery to support it, he was so very mild and indulgent as not to show any active resentment against his unfaithful agent, nor to complain to the Court of Directors. It was expected in Bengal that some strong measures would have immediately been taken to preserve the just rights of the king and of the Court of Directors; as this proceeding, unaccompanied with the severest animadversion, manifestly struck a decisive blow at the existence of the most essential powers of both. But your Committee do not find that any measures whatever, such as the case seemed to demand, were taken. The observations made by the Court of Directors on what they call "these extraordinary transactions" are just and well applied. They conclude with a declaration, "that the measures which it might be necessary for them to take, in order to retrieve the honor of the Company, and to prevent the like abuse from being practised in future, should have their most serious and earliest consideration"; and with this declaration they appear to have closed the account, and to have dismissed the subject forever.

A sanction was hereby given to all future defiance of every authority in this kingdom. Several other matters of complaint against Mr. Hastings, particularly the charge of peculation, fell to the ground at the same time. Opinions of counsel had been taken relative to a prosecution at law upon this charge, from the then Attorney and the then Solicitor-General and Mr. Dunning, (now the Lords Thurlow, Loughborough, and Ashburton,) together with Mr. Adair (now Recorder of London). None of them gave a positive opinion against the grounds of the prosecution. The Attorney-General doubted on the prudence of the proceedings, and censured (as it well deserved) the ill statement of the case. Three of them, Mr. Wedderburn, Mr. Dunning, and Mr. Adair, were clear in favor of the prosecution. No prosecution, however, was had, and the Directors contented themselves with censuring and admonishing Mr. Hastings.

With regard to the Supreme Council, the members who chose (for it was choice only) to attend to the orders which were issued from the languishing authority of the Directors continued to receive unprofitable applauses and no support. Their correspondence was always filled with complaints, the justice of which was always admitted by the Court of Directors; but this admission of the existence of the evil showed only the impotence of those who were to administer the remedy. The authority of the Court of Directors, resisted with success in so capital an instance as that of the resignation, was not likely to be respected in any other. What influence it really had on the conduct of the Company's servants may be collected from the facts that followed it.

The disobedience of Mr. Hastings has of late not only become uniform and systematical in practice, but has been in principle, also, supported by him, and by Mr. Barwell, late a member of the Supreme Council in Bengal, and now a member of this House.

In the Consultation of the 20th of July, 1778, Mr. Barwell gives it as his solemn and deliberate opinion, that, "while Mr. Hastings is in the government, the respect and dignity of his station should be supported. In these sentiments, I must decline an acquiescence in any order which has a tendency to bring the government into disrepute. As the Company have the means and power of forming their own administration in India, they may at pleasure place whom they please at the head; but in my opinion they are not authorized to treat a person in that post with indignity."