The Works of the Right Honourable Edmund Burke Volume VIII Part 1

The Works of the Right Honourable Edmund Burke.

Vol. VIII.

by Edmund Burke.

NINTH REPORT

From the SELECT COMMITTEE [of the House of Commons] appointed to take into consideration the state of the administration of justice in the provinces of Bengal, Bahar, and Orissa, and to report the same, as it shall appear to them, to the House, with their observations thereupon; and who were instructed to consider how the British possessions in the East Indies may be held and governed with the greatest security and advantage to this country, and by what means the happiness of the native inhabitants may be best promoted.

I.--OBSERVATIONS ON THE STATE OF THE COMPANY'S AFFAIRS IN INDIA.

In order to enable the House to adopt the most proper means for regulating the British government in India, and for promoting the happiness of the natives who live under its authority or influence, your Committee hold it expedient to collect into distinct points of view the circ.u.mstances by which that government appears to them to be most essentially disordered, and to explain fully the principles of policy and the course of conduct by which the natives of all ranks and orders have been reduced to their present state of depression and misery.

Your Committee have endeavored to perform this task in plain and popular language, knowing that nothing has alienated the House from inquiries absolutely necessary for the performance of one of the most essential of all its duties so much as the technical language of the Company's records, as the Indian names of persons, of offices, of the tenure and qualities of estates, and of all the varied branches of their intricate revenue. This language is, indeed, of necessary use in the executive departments of the Company's affairs; but it is not necessary to Parliament. A language so foreign from all the ideas and habits of the far greater part of the members of this House has a tendency to disgust them with all sorts of inquiry concerning this subject. They are fatigued into such a despair of ever obtaining a competent knowledge of the transactions in India, that they are easily persuaded to remand them back to that obscurity, mystery, and intrigue out of which they have been forced upon public notice by the calamities arising from their extreme mismanagement. This mismanagement has itself, as your Committee conceive, in a great measure arisen from dark cabals, and secret suggestions to persons in power, without a regular public inquiry into the good or evil tendency of any measure, or into the merit or demerit of any person intrusted with the Company's concerns.

[Sidenote: Present laws relating to the East India Company, and internal and external policy.]

The plan adopted by your Committee is, first, to consider the law regulating the East India Company, as it now stands,--and, secondly, to inquire into the circ.u.mstances of the two great links of connection by which the territorial possessions in India are united to this kingdom, namely, the Company's commerce, and the government exercised under the charter and under acts of Parliament. The last [first] of these objects, the commerce, is taken in two points of view: the _external_, or the direct trade between India and Europe, and the _internal_, that is to say, the trade of Bengal, in all the articles of produce and manufacture which furnish the Company's investment.

The government is considered by your Committee under the like descriptions of internal and external. The internal regards the communication between the Court of Directors and their servants in India, the management of the revenue, the expenditure of public money, the civil administration, the administration of justice, and the state of the army. The external regards, first, the conduct and maxims of the Company's government with respect to the native princes and people dependent on the British authority,--and, next, the proceedings with regard to those native powers which are wholly independent of the Company. But your Committee's observations on the last division extend to those matters only which are not comprehended in the Report of the Committee of Secrecy. Under these heads, your Committee refer to the most leading particulars of abuse which prevail in the administration of India,--deviating only from this order where the abuses are of a complicated nature, and where one cannot be well considered independently of several others.

[Sidenote: Second attempt made by Parliament for a reformation.]

Your Committee observe, that this is the second attempt made by Parliament for the reformation of abuses in the Company's government. It appears, therefore, to them a necessary preliminary to this second undertaking, _to consider the causes which, in their opinion_, have produced the failure of the first,--that the defects of the original plan may be supplied, its errors corrected, and such useful regulations as were then adopted may be further explained, enlarged, and enforced.

[Sidenote: Proceedings of session 1773.]

The first design of this kind was formed in the session of the year 1773. In that year, Parliament, taking up the consideration of the affairs of India, through two of its committees collected a very great body of details concerning the interior economy of the Company's possessions, and concerning many particulars of abuse which prevailed at the time when those committees made their ample and instructive reports.

But it does not appear that the body of regulations enacted in that year, that is, in the East India Act of the thirteenth of his Majesty's reign, were altogether grounded on that information, but were adopted rather on probable speculations and general ideas of good policy and good government. New establishments, civil and judicial, were therefore formed at a very great expense, and with much complexity of const.i.tution. Checks and counter-checks of all kinds were contrived in the execution, as well as in the formation of this system, in which all the existing authorities of this kingdom had a share: for Parliament appointed the members of the presiding part of the new establishment, the Crown appointed the judicial, and the Company preserved the nomination of the other officers. So that, if the act has not fully answered its purposes, the failure cannot be attributed to any want of officers of every description, or to the deficiency of any mode of patronage in their appointment. The cause must be sought elsewhere.

[Sidenote: Powers and objects of act of 1773, and the effects thereof.]

The act had in its view (independently of several detached regulations) five fundamental objects.

1st. The reformation of the Court of Proprietors of the East India Company.

2ndly. A new model of the Court of Directors, and an enforcement of their authority over the servants abroad.

3rdly. The establishment of a court of justice capable of protecting the natives from the oppressions of British subjects.

4thly. The establishment of a general council, to be seated in Bengal, whose authority should, in many particulars, extend over all the British settlements in India.

5thly. To furnish the ministers of the crown with constant information concerning the whole of the Company's correspondence with India, in order that they might be enabled to inspect the conduct of the Directors and servants, and to watch over the execution of all parts of the act; that they might be furnished with matter to lay before Parliament from time to time, according as the state of things should render regulation or animadversion necessary.

[Sidenote: Court of Proprietors.]

[Sidenote: New qualification.]

The first object of the policy of this act was to improve the const.i.tution of the Court of Proprietors. In this case, as in almost all the rest, the remedy was not applied directly to the disease. The complaint was, that factions in the Court of Proprietors had shown, in several instances, a disposition to support the servants of the Company against the just coercion and legal prosecution of the Directors.

Instead of applying a corrective to the distemper, a change was proposed in the const.i.tution. By this reform, it was presumed that an interest would arise in the General Court more independent in itself, and more connected with the commercial prosperity of the Company. Under the new const.i.tution, no proprietor, not possessed of a thousand pounds capital stock, was permitted to vote in the General Court: before the act, five hundred pounds was a sufficient qualification for one vote; and no value gave more. But as the lower cla.s.ses were disabled, the power was increased in the higher: proprietors of three thousand pounds were allowed two votes; those of six thousand were ent.i.tled to three; ten thousand pounds was made the qualification for four. The votes were thus regulated in the scale and gradation of property. On this scale, and on some provisions to prevent occasional qualifications and splitting of votes, the whole reformation rested.

[Sidenote: The ballot.]

[Sidenote: Indian interest.]

Several essential points, however, seem to have been omitted or misunderstood. No regulation was made to abolish the pernicious custom of voting by _ballot_, by means of which acts of the highest concern to the Company and to the state might be done by individuals with perfect impunity; and even the body itself might be subjected to a forfeiture of all its privileges for defaults of persons who, so far from being under control, could not be so much as known in any mode of legal cognizance.

Nothing was done or attempted to prevent the operation of the interest of delinquent servants of the Company in the General Court, by which they might even come to be their own judges, and, in effect, under another description, to become the masters in that body which ought to govern them. Nor was anything provided to secure the independency of the proprietary body from the various exterior interests by which it might be disturbed, and diverted from the conservation of that pecuniary concern which the act laid down as the sole security for preventing a collusion between the General Court and the powerful delinquent servants in India. The whole of the regulations concerning the Court of Proprietors relied upon two principles, which have often proved fallacious: namely, that small numbers were a security against faction and disorder; and that integrity of conduct would follow the greater property. In no case could these principles be less depended upon than in the affairs of the East India Company. However, by wholly cutting off the lower, and adding to the power of the higher cla.s.ses, it was supposed that the higher would keep their money in that fund to make profit,--that the vote would be a secondary consideration, and no more than a guard to the property,--and that therefore any abuse which tended to depreciate the value of their stock would be warmly resented by such proprietors.

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 quant.i.ties of valuable goods to their investment.

[Sidenote: 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 circ.u.mstanced. 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 partic.i.p.ation 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 compa.s.sing them. The new regulations did not reduce the number so low as not to leave the a.s.sembly still liable to all the disorder which might be supposed to arise from mult.i.tude. 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 a.s.serting 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 const.i.tution 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.

[Sidenote: 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 const.i.tuents, 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 princ.i.p.al 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 despised 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.

[Sidenote: 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 inst.i.tution 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 const.i.tution 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 munic.i.p.al law of England, to destroy a person of the highest rank among those natives whom they were sent to protect. One circ.u.mstance 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 const.i.tution 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 const.i.tution 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 a.s.sessment 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 inst.i.tution.

The fourth object of the act of 1773 was the Council-General. This inst.i.tution was intended to produce uniformity, consistency, and the effective cooperation of all the settlements in their common defence. By the ancient const.i.tution 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 inst.i.tuted 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.

[Sidenote: 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.