Complete Works of Edmund Burke

by Edmund Burke

  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 possi
ble 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.

  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 an
swers 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.