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

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 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.

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 .