by Edmund Burke
If the ill effects of every misdemeanor in the Company’s servants were to be immediate, and had a tendency to lower the value of the stock, something might justly be expected from the pecuniary security taken by the act. But from the then state of things, it was more than probable that proceedings ruinous to the permanent interest of the Company might commence in great lucrative advantages. Against this evil large pecuniary interests were rather the reverse of a remedy. Accordingly, the Company’s servants have ever since covered over the worst oppressions of the people under their government, and the most cruel and wanton ravages of all the neighboring countries, by holding out, and for a time actually realizing, additions of revenue to the territorial funds of the Company, and great quantities of valuable goods to their investment.
Proprietors.But this consideration of mere income, whatever weight it might have, could not be the first object of a proprietor, in a body so circumstanced. The East India Company is not, like the Bank of England, a mere moneyed society for the sole purpose of the preservation or improvement of their capital; and therefore every attempt to regulate it upon the same principles must inevitably fail. When it is considered that a certain share in the stock gives a share in the government of so vast an empire, with such a boundless patronage, civil, military, marine, commercial, and financial, in every department of which such fortunes have been made as could be made nowhere else, it is impossible not to perceive that capitals far superior to any qualifications appointed to proprietors, or even to Directors, would readily be laid out for a participation in that power. The India proprietor, therefore, will always be, in the first instance, a politician; and the bolder his enterprise, and the more corrupt his views, the less will be his consideration of the price to be paid for compassing them. The new regulations did not reduce the number so low as not to leave the assembly still liable to all the disorder which might be supposed to arise from multitude. But if the principle had been well established and well executed, a much greater inconveniency grew out of the reform than that which had attended the old abuse: for if tumult and disorder be lessened by reducing the number of proprietors, private cabal and intrigue are facilitated at least in an equal degree; and it is cabal and corruption, rather than disorder and confusion, that was most to be dreaded in transacting the affairs of India. Whilst the votes of the smaller proprietors continued, a door was left open for the public sense to enter into that society: since that door has been closed, the proprietary has become, even more than formerly, an aggregate of private interests, which subsist at the expense of the collective body. At the moment of this revolution in the proprietary, as it might naturally be expected, those who had either no very particular interest in their vote or but a petty object to pursue immediately disqualified; but those who were deeply interested in the Company’s patronage, those who were concerned in the supply of ships and of the other innumerable objects required for their immense establishments, those who were engaged in contracts with the Treasury, Admiralty, and Ordnance, together with the clerks in public offices, found means of securing qualifications at the enlarged standard. All these composed a much greater proportion than formerly they had done of the proprietary body.
Against the great, predominant, radical corruption of the Court of Proprietors the raising the qualification proved no sort of remedy. The return of the Company’s servants into Europe poured in a constant supply of proprietors, whose ability to purchase the highest qualifications for themselves, their agents, and dependants could not be dubious. And this latter description form a very considerable, and by far the most active and efficient part of that body. To add to the votes, which is adding to the power in proportion to the wealth, of men whose very offences were supposed to consist in acts which lead to the acquisition of enormous riches, appears by no means a well-considered method of checking rapacity and oppression. In proportion as these interests prevailed, the means of cabal, of concealment, and of corrupt confederacy became far more easy than before. Accordingly, there was no fault with respect to the Company’s government over its servants, charged or chargeable on the General Court as it originally stood, of which since the reform it has not been notoriously guilty. It was not, therefore, a matter of surprise to your Committee, that the General Court, so composed, has at length grown to such a degree of contempt both of its duty and of the permanent interest of the whole corporation as to put itself into open defiance of the salutary admonitions of this House, given for the purpose of asserting and enforcing the legal authority of their own body over their own servants.
The failure in this part of the reform of 1773 is not stated by your Committee as recommending a return to the ancient constitution of the Company, which was nearly as far as the new from containing any principle tending to the prevention or remedy of abuses, — but to point out the probable failure of any future regulations which do not apply directly to the grievance, but which may be taken up as experiments to ascertain theories of the operation of councils formed of greater or lesser numbers, or such as shall be composed of men of more or less opulence, or of interests of newer or longer standing, or concerning the distribution of power to various descriptions or professions of men, or of the election to office by one authority rather than another.
Court of Directors.The second object of the act was the Court of Directors. Under the arrangement of the year 1773 that court appeared to have its authority much strengthened. It was made less dependent than formerly upon its constituents, the proprietary. The duration of the Directors in office was rendered more permanent, and the tenure itself diversified by a varied and intricate rotation. At the same time their authority was held high over their servants of all descriptions; and the only rule prescribed to the Council-General of Bengal, in the exercise of the large and ill-defined powers given to them, was that they were to yield obedience to the orders of the Court of Directors. As to the Court of Directors itself, it was left with very little regulation. The custom of ballot, infinitely the most mischievous in a body possessed of all the ordinary executive powers, was still left; and your Committee have found the ill effects of this practice in the course of their inquiries. Nothing was done to oblige the Directors to attend to the promotion of their servants according to their rank and merits. In judging of those merits nothing was done to bind them to any observation of what appeared on their records. Nothing was done to compel them to prosecution or complaint where delinquency became visible. The act, indeed, prescribed that no servant of the Company abroad should be eligible into the direction until two years after his return to England. But as this regulation rather presumes than provides for an inquiry into their conduct, a very ordinary neglect in the Court of Directors might easily defeat it, and a short remission might in this particular operate as a total indemnity. In fact, however, the servants have of late seldom attempted a seat in the direction, — an attempt which might possibly rouse a dormant spirit of inquiry; but, satisfied with an interest in the proprietary, they have, through that name, brought the direction very much under their own control.
As to the general authority of the Court of Directors, there is reason to apprehend that on the whole it was somewhat degraded by the act whose professed purpose was to exalt it, and that the only effect of the Parliamentary sanction to their orders has been, that along with those orders the law of the land has been despised and trampled under foot. The Directors were not suffered either to nominate or to remove those whom they were empowered to instruct; from masters they were reduced to the situation of complainants, — a situation the imbecility of which no laws or regulations could wholly alter; and when the Directors were afterwards restored in some degree to their ancient power, on the expiration of the lease given to their principal servants, it became impossible for them to recover any degree of their ancient respect, even if they had not in the mean time been so modelled as to be entirely free from all ambition of that sort.
From that period the orders of the Court of Directors became to be so habitually d
espised by their servants abroad, and at length to be so little regarded even by themselves, that this contempt of orders forms almost the whole subject-matter of the voluminous reports of two of your committees. If any doubt, however, remains concerning the cause of this fatal decline of the authority of the Court of Directors, no doubt whatsoever can remain of the fact itself, nor of the total failure of one of the great leading regulations of the act of 1773.
Supreme Court of Judicature.The third object was a new judicial arrangement, the chief purpose of which was to form a strong and solid security for the natives against the wrongs and oppressions of British subjects resident in Bengal. An operose and expensive establishment of a Supreme Court was made, and charged upon the revenues of the country. The charter of justice was by the act left to the crown, as well as the appointment of the magistrates. The defect in the institution seemed to be this, — that no rule was laid down, either in the act or the charter, by which the court was to judge. No descriptions of offenders or species of delinquency were properly ascertained, according to the nature of the place, or to the prevalent mode of abuse. Provision was made for the administration of justice in the remotest part of Hindostan as if it were a province in Great Britain. Your Committee have long had the constitution and conduct of this court before them, and they have not yet been able to discover very few instances (not one that appears to them of leading importance) of relief given to the natives against the corruptions or oppressions of British subjects in power, — though they do find one very strong and marked instance of the judges having employed an unwarrantable extension or application of the municipal law of England, to destroy a person of the highest rank among those natives whom they were sent to protect. One circumstance rendered the proceeding in this case fatal to all the good purposes for which the court had been established. The sufferer (the Rajah Nundcomar) appears, at the very time of this extraordinary prosecution, a discoverer of some particulars of illicit gain then charged upon Mr. Hastings, the Governor-General. Although in ordinary cases, and in some lesser instances of grievance, it is very probable that this court has done its duty, and has been, as every court must be, of some service, yet one example of this kind must do more towards deterring the natives from complaint, and consequently from the means of redress, than many decisions favorable to them, in the ordinary course of proceeding, can do for their encouragement and relief. So far as your Committee has been able to discover, the court has been generally terrible to the natives, and has distracted the government of the Company without substantially reforming any one of its abuses.
This court, which in its constitution seems not to have had sufficiently in view the necessities of the people for whose relief it was intended, and was, or thought itself, bound in some instances to too strict an adherence to the forms and rules of English practice, in others was framed upon principles perhaps too remote from the constitution of English tribunals. By the usual course of English practice, the far greater part of the redress to be obtained against oppressions of power is by process in the nature of civil actions. In these a trial by jury is a necessary part, with regard to the finding the offence and to the assessment of the damages. Both these were in the charter of justice left entirely to the judges. It was presumed, and not wholly without reason, that the British subjects were liable to fall into factions and combinations, in order to support themselves in the abuses of an authority of which every man might in his turn become a sharer. And with regard to the natives, it was presumed (perhaps a little too hastily) that they were not capable of sharing in the functions of jurors. But it was not foreseen that the judges were also liable to be engaged in the factions of the settlement, — and if they should ever happen to be so engaged, that the native people were then without that remedy which obviously lay in the chance that the court and jury, though both liable to bias, might not easily unite in the same identical act of injustice. Your Committee, on full inquiry, are of opinion that the use of juries is neither impracticable nor dangerous in Bengal.
Your Committee refer to their report made in the year 1781, for the manner in which this court, attempting to extend its jurisdiction, and falling with extreme severity on the native magistrates, a violent contest arose between the English judges and the English civil authority. This authority, calling in the military arm, (by a most dangerous example,) overpowered, and for a while suspended, the functions of the court; but at length those functions, which were suspended by the quarrel of the parties, were destroyed by their reconciliation, and by the arrangements made in consequence of it. By these the court was virtually annihilated; or if substantially it exists, it is to be apprehended it exists only for purposes very different from those of its institution.
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. 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.