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

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. 1 1 See the Secret Committee's Reports on the Mahratta War. 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.