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

The fourth object of the act of 1773 was the Council-General. This institution was intended to produce uniformity, consistency, and the effective coöperation of all the settlements in their common defence. By the ancient constitution of the Company's foreign settlements, they were each of them under the orders of a President or Chief, and a Council, more or fewer, according to the discretion of the Company. Among those, Parliament (probably on account of the largeness of the territorial acquisitions, rather than the conveniency of the situation) chose Bengal for the residence of the controlling power, and, dissolving the Presidency, appointed a new establishment, upon a plan somewhat similar to that which had prevailed before; but the number was smaller. This establishment was composed of a Governor-General and four Counsellors, all named in the act of Parliament. They were to hold their offices for five years, after which term the patronage was to revert to the Court of Directors. In the mean time such vacancies as should happen were to be filled by that court, with the concurrence of the crown. The first Governor-General and one of the Counsellors had been old servants of the Company; the others were new men.

On this new arrangement the Courts of Proprietors and Directors considered the details of commerce as not perfectly consistent with the enlarged sphere of duty and the reduced number of the Council. Therefore, to relieve them from this burden, they instituted a new office, called the Board of Trade, for the subordinate management of their commercial concerns, and appointed eleven of the senior servants to fill the commission.

Object of powers to Governor-General and Council. The powers given by the act to the new Governor-General and Council had for their direct object the kingdom of Bengal and its dependencies. Within that sphere (and it is not a small one) their authority extended over all the Company's concerns of whatever description. In matters of peace and war it seems to have been meant that the other Presidencies should be subordinate to their board. But the law is loose and defective, where it professes to restrain the subordinate Presidencies from making war without the consent and approbation of the Supreme Council. They are left free to act without it in cases of imminent necessity, or where they shall have received special orders from the Company. The first exception leaves it open to the subordinate to judge of the necessity of measures which, when taken, bind or involve the superior: the second refers a question of peace or war to two jurisdictions, which may give different judgments. In both instances cases in point have occurred.1 With regard to their local administration, their powers were exceedingly and dangerously loose and undetermined. Their powers were not given directly, but in words of reference, in which neither the objects related to nor the mode of the relation were sufficiently expressed. Their legislative and executive capacities were not so accurately drawn, and marked by such strong and penal lines of distinction, as to keep these capacities separate. Where legislative and merely executive powers were lodged in the same hands, the legislative, which is the larger and the more ready for all occasions, was constantly resorted to. The Governor-General and Council, therefore, immediately gave constructions to their ill-defined authority which rendered it perfectly despotic,—constructions which if they were allowed, no action of theirs ought to be regarded as criminal.

Armed as they were with an authority in itself so ample, and by abuse so capable of an unlimited extent, very few, and these very insufficient correctives, were administered. Ample salaries were provided for them, which indeed removed the necessity, but by no means the inducements to corruption and oppression. Nor was any barrier whatsoever opposed on the part of the natives against their injustice, except the Supreme Court of Judicature, which never could be capable of controlling a government with such powers, without becoming such a government itself.

There was, indeed, a prohibition against all concerns in trade to the whole Council, and against all taking of presents by any in authority. A right of prosecution in the King's Bench was also established; but it was a right the exercise of which is difficult, and in many, and those the most weighty cases, impracticable. No considerable facilities were given to prosecution in Parliament; nothing was done to prevent complaint from being far more dangerous to the sufferer than injustice to the oppressor. No overt acts were fixed, upon which corruption should be presumed in transactions of which secrecy and collusion formed the very basis; no rules of evidence nor authentic mode of transmission were settled in conformity to the unalterable circumstances of the country and the people.

Removal of servants. One provision, indeed, was made for restraining the servants, in itself very wise and substantial: a delinquent once dismissed, could not be restored, but by the votes of three fourths of the Directors and three fourths of the proprietors: this was well aimed. But no method was settled for bringing delinquents to the question of removal: and if they should be brought to it, a door lay wide open for evasion of the law, and for a return into the service, in defiance of its plain intention,—that is, by resigning to avoid removal; by which measure this provision of the act has proved as unoperative as all the rest. By this management a mere majority may bring in the greater delinquent, whilst the person removed for offences comparatively trivial may remain excluded forever.

Council-General The new Council nominated in the act was composed of two totally discordant elements, which soon distinguished themselves into permanent parties. One of the principal instructions which the three members of the Council sent immediately from England, namely, General Clavering, Colonel Monson, and Mr. Francis, carried out with them was, to "cause the strictest inquiry to be made into all oppressions and abuses," among which the practice of receiving presents from the natives, at that time generally charged upon men in power, was principally aimed at.

Presents to any considerable value were justly reputed by the legislature, not as marks of attention and respect, but as bribes or extortions, for which either the beneficial and gratuitous duties of government were sold, or they were the price paid for acts of partiality, or, finally, they were sums of money extorted from the givers by the terrors of power. Against the system of presents, therefore, the new commission was in general opinion particularly pointed. In the commencement of reformation, at a period when a rapacious conquest had overpowered and succeeded to a corrupt government, an act of indemnity might have been thought advisable; perhaps a new account ought to have been opened; all retrospect ought to have been forbidden, at least to certain periods. If this had not been thought advisable, none in the higher departments of a suspected and decried government ought to have been kept in their posts, until an examination had rendered their proceedings clear, or until length of time had obliterated, by an even course of irreproachable conduct, the errors which so naturally grow out of a new power. But the policy adopted was different: it was to begin with examples. The cry against the abuses was strong and vehement throughout the whole nation, and the practice of presents was represented to be as general as it was mischievous. In such a case, indeed in any case, it seemed not to be a measure the most provident, without a great deal of previous inquiry, to place two persons, who from their situation must be the most exposed to such imputations, in the commission which was to inquire into their own conduct,—much less to place one of them at the head of that commission, and with a casting vote in case of an equality. The persons who could not be liable to that charge were, indeed, three to two; but any accidental difference of opinion, the death of any one of them or his occasional absence or sickness, threw the whole power into the hands of the other two, who were Mr. Hastings and Mr. Barwell, one the President, and the other high in the Council of that establishment on which the reform was to operate. Thus those who were liable to process as delinquents were in effect set over the reformers; and that did actually happen which might be expected to happen from so preposterous an arrangement: a stop was soon put to all inquiries into the capital abuses.

Nor was the great political end proposed in the formation of a superintending Council over all the Presidencies better answered than that of an inquiry into corruptions and abuses. The several Presidencies have acted in a great degree upon their own separate authority; and as little of unity, concert, or regular system has appeared in their conduct as was ever known before this institution. India is, indeed, so vast a country, and the settlements are so divided, that their intercourse with each other is liable to as many delays and difficulties as the intercourse between distant and separate states. But one evil may possibly have arisen from an attempt to produce an union, which, though undoubtedly to be aimed at, is opposed in some degree by the unalterable nature of their situation,—that it has taught the servants rather to look to a superior among themselves than to their common superiors. This evil, growing out of the abuse of the principle of subordination, can only be corrected by a very strict enforcement of authority over that part of the chain of dependence which is next to the original power.

Powers given to the ministers of the crown. That which your Committee considers as the fifth and last of the capital objects of the act, and as the binding regulation of the whole, is the introduction (then for the first time) of the ministers of the crown into the affairs of the Company. The state claiming a concern and share of property in the Company's profits, the servants of the crown were presumed the more likely to preserve with a scrupulous attention the sources of the great revenues which they were to administer, and for the rise and fall of which they were to render an account.

The interference of government was introduced by this act in two ways: one by a control, in effect by a share, in the appointment to vacancies in the Supreme Council. The act provided that his Majesty's approbation should be had to the persons named to that duty. Partaking thus in the patronage of the Company, administration was bound to an attention to the characters and capacities of the persons employed in that high trust. The other part of their interference was by way of inspection. By this right of inspection, everything in the Company's correspondence from India, which related to the civil or military affairs and government of the Company, was directed by the act to be within fourteen days after the receipt laid before the Secretary of State, and everything that related to the management of the revenues was to be laid before the Commissioners of the Treasury. In fact, both description of these papers have been generally communicated to that board.

Defects in the plan. It appears to your Committee that there were great and material defects in both parts of the plan. With regard to the approbation of persons nominated to the Supreme Council by the Court of Directors, no sufficient means were provided for carrying to his Majesty, along with the nomination, the particulars in the conduct of those who had been in the service before, which might render them proper objects of approbation or rejection. The India House possesses an office of record capable of furnishing, in almost all cases, materials for judging on the behavior of the servants in their progress from the lowest to the highest stations; and the whole discipline of the service, civil and military, must depend upon an examination of these records inseparably attending every application for an appointment to the highest stations. But in the present state of the nomination the ministers of the crown are not furnished with the proper means of exercising the power of control intended by the law, even if they were scrupulously attentive to the use of it. There are modes of proceeding favorable to neglect. Others excite inquiry and stimulate to vigilance.

Proposition to remedy them. Your Committee, therefore, are of opinion, that for the future prevention of cabal, and of private and partial representation, whether above or below, that, whenever any person who has been in the service shall be recommended to the King's ministers to fill a vacancy in the Council-General, the Secretary of the Court of Directors shall be ordered to make a strict search into the records of the Company, and shall annex to the recommendation the reasons of the Court of Directors for their choice, together with a faithful copy of whatever shall be found (if anything can be found) relative to his character and conduct,—as also an account of his standing in the Company's service, the time of his abode in India, the reasons for his return, and the stations, whether civil or military, in which he has been successively placed.

With this account ought to be transmitted the names of those who were proposed as candidates for the same office, with the correspondent particulars relative to their conduct and situation: for not only the separate, but the comparative merit, probably would, and certainly ought, to have great influence in the approbation or rejection of the party presented to the ministers of the crown. These papers should be laid before the Commissioners of the Treasury and one of the Secretaries of State, and entered in books to be kept in the Treasury and the Secretary's office.

Appointment of Counsellors, &c. These precautions, in case of the nomination of any who have served the Company, appear to be necessary from the improper nomination and approbation of Mr. John Macpherson's appointment. Macpherson, notwithstanding the objections which stood against him on the Company's records. The choice of Mr. John Stables's. Stables, from an inferior military to the highest civil capacity, was by no means proper, nor an encouraging example to either service. His conduct, indeed, in the subaltern military situation, had received, and seems to have deserved, commendation; but no sufficient ground was furnished for confounding the lines and gradations of service. This measure was, however, far less exceptionable than the former; because an irregular choice of a less competent person, and the preference given to proved delinquency in prejudice to uncensured service, are very different things. But even this latter appointment would in all likelihood have been avoided, if rules of promotion had been established. If such rules were settled, candidates qualified from ability, knowledge, and service would not be discouraged by finding that everything was open to every man, and that favor alone stood in the place of civil or military experience. The elevation from the lowest stations unfaithfully and negligently filled to the highest trusts, the total inattention to rank and seniority, and, much more, the combination of this neglect of rank with a confusion (unaccompanied with strong and evident reasons) of the lines of service, cannot operate as useful examples on those who serve the public in India. These servants, beholding men who have been condemned for improper behavior to the Company in inferior civil stations elevated above them, or (what is less blamable, but still mischievous) persons without any distinguished civil talents taken from the subordinate situations of another line to their prejudice, will despair by any good behavior of ascending to the dignities of their own: they will be led to improve, to the utmost advantage of their fortune, the lower stages of power, and will endeavor to make up in lucre what they can never hope to acquire in station.

The temporary appointment by Parliament of the Supreme Council of India arose from an opinion that the Company, at that time at least, was not in a condition or not disposed to a proper exercise of the privileges which they held under their charter. It therefore behoved the Directors to be particularly attentive to their choice of Counsellors, on the expiration of the period during which their patronage had been suspended. The duties of the Supreme Council had been reputed of so arduous a nature as to require even a legislative interposition. They were called upon, by all possible care and impartiality, to justify Parliament at least as fully in the restoration of their privileges as the circumstances of the time had done in their suspension.

But interests have lately prevailed in the Court of Directors, which, by the violation of every rule, seemed to be resolved on the destruction of those privileges of which they were the natural guardians. Every new power given has been made the source of a new abuse; and the acts of Parliament themselves, which provide but imperfectly for the prevention of the mischief, have, it is to be feared, made provisions (contrary, without doubt, to the intention of the legislature) which operate against the possibility of any cure in the ordinary course.

In the original institution of the Supreme Council, reasons may have existed against rendering the tenure of the Counsellors in their office precarious. A plan of reform might have required the permanence of the persons who were just appointed by Parliament to execute it. But the act of 1780 gave a duration coexistent with the statute itself to a Council not appointed by act of Parliament, nor chosen for any temporary or special purpose; by which means the servants in the highest situation, let their conduct be never so grossly criminal, cannot be removed, unless the Court of Directors and ministers of the crown can be found to concur in the same opinion of it. The prevalence of the Indian factions in the Court of Directors and Court of Proprietors, and sometimes in the state itself, renders this agreement extremely difficult: if the principal members of the Direction should be in a conspiracy with any principal servant under censure, it will be impracticable; because the first act must originate there. The reduced state of the authority of this kingdom in Bengal may be traced in a great measure to that very natural source of independence. In many cases the instant removal of an offender from his power of doing mischief is the only mode of preventing the utter and perhaps irretrievable ruin of public affairs. In such a case the process ought to be simple, and the power absolute in one or in either hand separately. By contriving the balance of interests formed in the act, notorious offence, gross error, or palpable insufficiency have many chances of retaining and abusing authority, whilst the variety of representations, hearings, and conferences, and possibly the mere jealousy and competition between rival powers, may prevent any decision, and at length give time and means for settlements and compromises among parties, made at the expense of justice and true policy. But this act of 1780, not properly distinguishing judicial process from executive arrangements, requires in effect nearly the same degree of solemnity, delay, and detail for removing a political inconvenience which attends a criminal proceeding for the punishment of offences. It goes further, and gives the same tenure to all who shall succeed to vacancies which was given to those whom the act found in office.

Another regulation was made in the act, which has a tendency to render the control of delinquency or the removal of incapacity in the Council-General extremely difficult, as well as to introduce many other abuses into the original appointment of Counsellors. Provisional appointment for vacancies. The inconveniences of a vacancy in that important office, at a great distance from the authority that is to fill it, were visible; but your Committee have doubts whether they balance the mischief which may arise from the power given in this act, of a provisional appointment to vacancies, not on the event, but on foresight. This mode of providing for the succession has a tendency to promote cabal, and to prevent inquiry into the qualifications of the persons to be appointed. An attempt has been actually made, in consequence of this power, in a very marked manner, to confound the whole order and discipline of the Company's service. Means are furnished thereby for perpetuating the powers of some given Court of Directors. They may forestall the patronage of their successors, on whom they entail a line of Supreme Counsellors and Governors-General. And if the exercise of this power should happen in its outset to fall into bad hands, the ordinary chances for mending an ill choice upon death or resignation are cut off.

In these provisional arrangements it is to be considered that the appointment is not in consequence of any marked event which calls strongly on the attention of the public, but is made at the discretion of those who lead in the Court of Directors, and may therefore be brought forward at times the most favorable to the views of partiality and corruption. Candidates have not, therefore, the notice that may be necessary for their claims; and as the possession of the office to which the survivors are to succeed seems remote, all inquiry into the qualifications and character of those who are to fill it will naturally be dull and languid.

Your Committee are not also without a grounded apprehension of the ill effect on any existing Council-General of all strong marks of influence and favor which appear in the subordinates of Bengal. This previous designation to a great and arduous trust, (the greatest that can be reposed in subjects,) when made out of any regular course of succession, marks that degree of countenance and support at home which may overshadow the existing government. That government may thereby be disturbed by factions, and led to corrupt and dangerous compliances. At best, when these Counsellors elect are engaged in no fixed employment, and have no lawful intermediate emolument, the natural impatience for their situations may bring on a traffic for resignations between them and the persons in possession, very unfavorable to the interests of the public and to the duty of their situations.

Since the act two persons have been nominated to the ministers of the crown by the Court of Directors for this succession. Neither has yet been approved. But by the description of the persons a judgment may be formed of the principles on which this power is likely to be exercised.

Stuart and Sulivan's appointment to succeed to vacancies. Your Committee find, that, in consequence of the above-mentioned act, the Honorable Charles Stuart and Mr. Sulivan were appointed to succeed to the first vacancies in the Supreme Council. Mr. Stuart's first appointment in the Company's service was in the year 1761. He returned to England in 1775, and was permitted to go back to India in 1780. In August, 1781, he was nominated by the Court of Directors (Mr. Sulivan and Sir William James were Chairman and Deputy-Chairman) to succeed to the first vacancy in the Supreme Council, and on the 19th of September following his Majesty's approval of such nomination was requested.

Mr. Stuart's situation at the time of his appointment. In the nomination of Mr. Stuart, the consideration of rank in the service was not neglected; but if the Court of Directors had thought fit to examine their records, they would have found matter at least strongly urging them to a suspension of this appointment, until the charges against Mr. Stuart should be fully cleared up. That matter remained (as it still remains) unexplained from the month of May, 1775, where, on the Bengal Revenue Consultations of the 12th of that month, peculations to a large amount are charged upon oath against Mr. Stuart under the following title: "The Particulars of the Money unjustly taken by Mr. Stuart, during the Time he was at Burdwan." The sum charged against him in this account is 2,17,684 Sicca rupees (that is, 25,253l. sterling); besides which there is another account with the following title: "The Particulars of the Money unjustly taken by Callypersaud Bose, Banian to the Honorable Charles Stuart, Esquire, at Burdwan, and amounting to Sicca Rupees 1,01,675" (that is, 11,785l.),—a large sum to be received by a person in that subordinate situation.