The Works of the Right Honourable Edmund Burke, Vol. 09 (of 12)

So far as to the process; which, though I mentioned last in the line and order in which I stated the objects of our selection, I thought it best to dispatch first.

As to the crime which we chose, we first considered well what it was in its nature, under all the circumstances which attended it. We weighed it with all its extenuations and with all its aggravations. On that review, we are warranted to assert that the crimes with which we charge the prisoner at the bar are substantial crimes,—that they are no errors or mistakes, such as wise and good men might possibly fall into, which may even produce very pernicious effects without being in fact great offences. The Commons are too liberal not to allow for the difficulties of a great and arduous public situation. They know too well the domineering necessities which frequently occur in all great affairs. They know the exigency of a pressing occasion, which, in its precipitate career, bears everything down before it,—which does not give time to the mind to recollect its faculties, to reinforce its reason, and to have recourse to fixed principles, but, by compelling an instant and tumultuous decision, too often obliges men to decide in a manner that calm judgment would certainly have rejected. We know, as we are to be served by men, that the persons who serve us must be tried as men, and with a very large allowance indeed to human infirmity and human error. This, my Lords, we knew and we weighed before we came before you. But the crimes which we charge in these articles are not lapses, defects, errors of common human frailty, which, as we know and feel, we can allow for. We charge this offender with no crimes that have not arisen from passions which it is criminal to harbor,—with no offences that have not their root in avarice, rapacity, pride, insolence, ferocity, treachery, cruelty, malignity of temper,—in short, in [with?] nothing that does not argue a total extinction of all moral principle, that does not manifest an inveterate blackness of heart, dyed in grain with malice, vitiated, corrupted, gangrened to the very core. If we do not plant his crimes in those vices which the breast of man is made to abhor, and the spirit of all laws, human and divine, to interdict, we desire no longer to be heard upon this occasion. Let everything that can be pleaded on the ground of surprise or error, upon those grounds be pleaded with success: we give up the whole of those predicaments. We urge no crimes that were not crimes of forethought. We charge him with nothing that he did not commit upon deliberation,—that he did not commit against advice, supplication, and remonstrance,—that he did not commit against the direct command of lawful authority,—that he did not commit after reproof and reprimand, the reproof and reprimand of those who were authorized by the laws to reprove and reprimand him. The crimes of Mr. Hastings are crimes not only in themselves, but aggravated by being crimes of contumacy. They were crimes, not against forms, but against those eternal laws of justice which are our rule and our birthright. His offences are, not in formal, technical language, but in reality, in substance and effect, high crimes and high misdemeanors.

So far as to the crimes. As to the criminal, we have chosen him on the same principle on which we selected the crimes. We have not chosen to bring before you a poor, puny, trembling delinquent, misled, perhaps, by those who ought to have taught him better, but who have afterwards oppressed him by their power, as they had first corrupted him by their example. Instances there have been many, wherein the punishment of minor offences, in inferior persons, has been made the means of screening crimes of an high order, and in men of high description. Our course is different. We have not brought before you an obscure offender, who, when his insignificance and weakness are weighed against the power of the prosecution, gives even to public justice something of the appearance of oppression: no, my Lords, we have brought before you the first man of India, in rank, authority, and station. We have brought before you the chief of the tribe, the head of the whole body of Eastern offenders, a captain-general of iniquity, under whom all the fraud, all the peculation, all the tyranny in India are embodied, disciplined, arrayed, and paid. This is the person, my Lords, that we bring before you. We have brought before you such a person, that, if you strike at him with the firm and decided arm of justice, you will not have need of a great many more examples. You strike at the whole corps, if you strike at the head.

So far as to the crime: so far as to the criminal. Now, my Lords, I shall say a few words relative to the evidence which we have brought to support such a charge, and which ought to be equal in weight to the charge itself. It is chiefly evidence of record, officially signed by the criminal himself in many instances. We have brought before you his own letters, authenticated by his own hand. On these we chiefly rely. But we shall likewise bring before you living witnesses, competent to speak to the points to which they are brought.

When you consider the late enormous power of the prisoner,—when you consider his criminal, indefatigable assiduity in the destruction of all recorded evidence,—when you consider the influence he has over almost all living testimony,—when you consider the distance of the scene of action,—I believe your Lordships, and I believe the world, will be astonished that so much, so clear, so solid, and so conclusive evidence of all kinds has been obtained against him. I have no doubt that in nine instances in ten the evidence is such as would satisfy the narrow precision supposed to prevail, and to a degree rightly to prevail, in all subordinate power and delegated jurisdiction. But your Lordships will maintain, what we assert and claim as the right of the subjects of Great Britain, that you are not bound by any rules of evidence, or any other rules whatever, except those of natural, immutable, and substantial justice.

God forbid the Commons should desire that anything should be received as proof from them which is not by nature adapted to prove the thing in question! If they should make such a request, they would aim at overturning the very principles of that justice to which they resort; they would give the nation an evil example that would rebound back on themselves, and bring destruction upon their own heads, and on those of all their posterity.

On the other hand, I have too much confidence in the learning with which you will be advised, and the liberality and nobleness of the sentiments with which you are born, to suspect that you would, by any abuse of the forms, and a technical course of proceeding, deny justice to so great a part of the world that claims it at your hands. Your Lordships always had an ample power, and almost unlimited jurisdiction; you have now a boundless object. It is not from this district or from that parish, not from this city or the other province, that relief is now applied for: exiled and undone princes, extensive tribes, suffering nations, infinite descriptions of men, different in language, in manners, and in rites, men separated by every barrier of Nature from you, by the Providence of God are blended in one common cause, and are now become suppliants at your bar. For the honor of this nation, in vindication of this mysterious Providence, let it be known that no rule formed upon municipal maxims (if any such rule exists) will prevent the course of that imperial justice which you owe to the people that call to you from all parts of a great disjointed world. For, situated as this kingdom is, an object, thank God, of envy to the rest of the nations, its conduct in that high and elevated situation will undoubtedly be scrutinized with a severity as great as its power is invidious.

It is well known that enormous wealth has poured into this country from India through a thousand channels, public and concealed; and it is no particular derogation from our honor to suppose a possibility of being corrupted by that by which other empires have been corrupted, and assemblies almost as respectable and venerable as your Lordships' have been directly or indirectly vitiated. Forty millions of money, at least, have within our memory been brought from India into England. In this case the most sacred judicature ought to look to its reputation. Without offence we may venture to suggest that the best way to secure reputation is, not by a proud defiance of public opinion, but by guiding our actions in such a manner as that public opinion may in the end be securely defied, by having been previously respected and dreaded. No direct false judgment is apprehended from the tribunals of this country; but it is feared that partiality may lurk and nestle in the abuse of our forms of proceeding. It is necessary, therefore, that nothing in that proceeding should appear to mark the slightest trace, should betray the faintest odor of chicane. God forbid, that, when you try the most serious of all causes, that, when you try the cause of Asia in the presence of Europe, there should be the least suspicion that a narrow partiality, utterly destructive of justice, should so guide us that a British subject in power should appear in substance to possess rights which are denied to the humble allies, to the attached dependants of this kingdom, who by their distance have a double demand upon your protection, and who, by an implicit (I hope not a weak and useless) trust in you, have stripped themselves of every other resource under heaven!

I do not say this from any fear, doubt, or hesitation concerning what your Lordships will finally do,—none in the world; but I cannot shut my ears to the rumors which you all know to be disseminated abroad. The abusers of power may have a chance to cover themselves by those fences and intrenchments which were made to secure the liberties of the people against men of that very description. But God forbid it should be bruited from Pekin to Paris, that the laws of England are for the rich and the powerful, but to the poor, the miserable, and defenceless they afford no resource at all! God forbid it should be said, no nation is equal to the English in substantial violence and in formal justice,—that in this kingdom we feel ourselves competent to confer the most extravagant and inordinate powers upon public ministers, but that we are deficient, poor, helpless, lame, and impotent in the means of calling them to account for their use of them! An opinion has been insidiously circulated through this kingdom, and through foreign nations too, that, in order to cover our participation in guilt, and our common interest in the plunder of the East, we have invented a set of scholastic distinctions, abhorrent to the common sense and unpropitious to the common necessities of mankind, by which we are to deny ourselves the knowledge of what the rest of the world knows, and what so great a part of the world both knows and feels. I do not deprecate any appearance which may give countenance to this aspersion from suspicion that any corrupt motive can influence this court; I deprecate it from knowing that hitherto we have moved within the narrow circle of municipal justice. I am afraid, that, from the habits acquired by moving within a circumscribed sphere, we may be induced rather to endeavor at forcing Nature into that municipal circle than to enlarge the circle of national justice to the necessities of the empire we have obtained.

This is the only thing which does create any doubt or difficulty in the minds of sober people. But there are those who will not judge so equitably. Where two motives, neither of them perfectly justifiable, may be assigned, the worst has the chance of being preferred. If, from any appearance of chicane in the court, justice should fail, all men will say, better there were no tribunals at all. In my humble opinion, it would be better a thousand times to give all complainants the short answer the Dey of Algiers gave a British ambassador, representing certain grievances suffered by the British merchants,—"My friend," (as the story is related by Dr. Shaw,) "do not you know that my subjects are a band of robbers, and that I am their captain?"—better it would be a thousand times, and a thousand thousand times more manly, than an hypocritical process, which, under a pretended reverence to punctilious ceremonies and observances of law, abandons mankind without help and resource to all the desolating consequences of arbitrary power. The conduct and event of this cause will put an end to such doubts, wherever they may be entertained. Your Lordships will exercise the great plenary powers with which you are invested in a manner that will do honor to the protecting justice of this kingdom, that will completely avenge the great people who are subjected to it. You will not suffer your proceedings to be squared by any rules but by their necessities, and by that law of a common nature which cements them to us and us to them. The reports to the contrary have been spread abroad with uncommon industry; but they will be speedily refuted by the humanity, simplicity, dignity, and nobleness of your Lordships' justice.

Having said all that I am instructed to say concerning the process which the House of Commons has used, concerning the crimes which they have chosen, concerning the criminal upon whom they attach the crimes, and concerning the evidence which they mean to produce, I am now to proceed to open that part of the business which falls to my share. It is rather an explanation of the circumstances than an enforcement of the crimes.

Your Lordships of course will be apprised that this cause is not what occurs every day, in the ordinary round of municipal affairs,—that it has a relation to many things, that it touches many points in many places, which are wholly removed from the ordinary beaten orbit of our English affairs. In other affairs, every allusion immediately meets its point of reference; nothing can be started that does not immediately awaken your attention to something in your own laws and usages which you meet with every day in the ordinary transactions of life. But here you are caught, as it were, into another world; you are to have the way pioneered before you. As the subject is new, it must be explained; as it is intricate as well as new, that explanation can be only comparatively short: and therefore, knowing your Lordships to be possessed, along with all other judicial virtues, of the first and foundation of them all, judicial patience, I hope that you will not grudge a few hours to the explanation of that which has cost the Commons fourteen years' assiduous application to acquire,—that your Lordships will not disdain to grant a few hours to what has cost the people of India upwards of thirty years of their innate, inveterate, hereditary patience to endure.

My Lords, the powers which Mr. Hastings is charged with having abused are the powers delegated to him by the East India Company. The East India Company itself acts under two very dissimilar sorts of powers, derived from two sources very remote from each other. The first source of its power is under charters which the crown of Great Britain was authorized by act of Parliament to grant; the other is from several charters derived from the Emperor of the Moguls, the person in whose dominions they were chiefly conversant,—particularly that great charter by which, in the year 1765, they acquired the high-stewardship of the kingdoms of Bengal, Bahar, and Orissa. Under those two bodies of charters, the East India Company, and all their servants, are authorized to act.

As to those of the first description, it is from the British charters that they derive the capacity by which they are considered as a public body, or at all capable of any public function. It is from thence they acquire the capacity to take from any power whatsoever any other charter, to acquire any other offices, or to hold any other possessions. This, being the root and origin of their power, renders them responsible to the party from whom all their immediate and consequential powers are derived. As they have emanated from the supreme power of this kingdom, the whole body and the whole train of their servants, the corporate body as a corporate body, individuals as individuals, are responsible to the high justice of this kingdom. In delegating great power to the East India Company, this kingdom has not released its sovereignty; on the contrary, the responsibility of the Company is increased by the greatness and sacredness of the powers that have been intrusted to it. Attempts have been made abroad to circulate a notion that the acts of the East India Company and their servants are not cognizable here. I hope on this occasion your Lordships will show that this nation never did give a power without annexing to it a proportionable degree of responsibility.

As to their other powers, the Company derives them from the Mogul empire by various charters from that crown, and from the great magistrates of that crown, and particularly by the Mogul charter of 1765, by which they obtained the dewanny, that is, the office of lord high-steward, of the kingdoms of Bengal, Bahar, and Orissa. By that charter they bound themselves (and bound inclusively all their servants) to perform all the duties belonging to that new office, and to be held by all the ties belonging to that new relation. If the Mogul empire had existed in its vigor, they would have been bound, under that responsibility, to observe the laws, rights, usages, and customs of the natives, and to pursue their benefit in all things: for this duty was inherent in the nature, institution, and purpose of the office which they received. If the power of the sovereign from whom they derived these powers should by any revolution in human affairs be annihilated or suspended, their duty to the people below them, which was created under the Mogul charter, is not annihilated, is not even suspended; and for their responsibility in the performance of that duty, they are thrown back upon that country (thank God, not annihilated) from whence their original power, and all subsequent derivative powers, have flowed. When the Company acquired that high office in India, an English corporation became an integral part of the Mogul empire. When Great Britain virtually assented to that grant of office, and afterwards took advantage of it, Great Britain guarantied the performance of all its duties. Great Britain entered into a virtual act of union with that country, by which we bound ourselves as securities to preserve the people in all the rights, laws, and liberties which their natural, original sovereign was bound to support, if he had been in condition to support them. By the disposition of events, the two duties, flowing from two different sources, are now united in one. The people of India, therefore, come in the name of the Commons of Great Britain, but in their own right, to the bar of this House, before the supreme royal justice of this kingdom, from whence originally all the powers under which they have suffered were derived.

It may be a little necessary, when we are stating the powers the Company have derived from their charter, and which we state Mr. Hastings to have abused, to state in as short and as comprehensive words as I can (for the matter is large indeed) what the constitution of that Company is,—I mean chiefly, what it is in reference to its Indian service, the great theatre of the abuse. Your Lordships will naturally conceive that it is not to inform you, but to revive circumstances in your memory, that I enter into this detail.

You will therefore recollect, that the East India Company had its origin about the latter end of the reign of Elizabeth, a period of projects, when all sorts of commercial adventures, companies, and monopolies were in fashion. At that time the Company was constituted with extensive powers for increasing the commerce and the honor of this country; because increasing its commerce, without increasing its honor and reputation, would have been thought at that time, and will be thought now, a bad bargain for the country. The powers of the Company were, under that charter, merely commercial. By degrees, as the theatre of operation was distant, as its intercourse was with many great, some barbarous, and all of them armed nations, nations in which not only the sovereign, but the subjects, were armed, it was found necessary to enlarge their powers. The first power they obtained was a power of naval discipline in their ships,—a power which has been since dropped; the next was a power of law martial; the next was a power of civil, and, to a degree, of criminal jurisdiction, within their own factories, upon their own people and their own servants; the next was (and here was a stride indeed) the power of peace and war. Those high and almost incommunicable prerogatives of sovereignty, which were hardly ever known before to be parted with to any subjects, and which in several states were not wholly intrusted to the prince or head of the commonwealth himself, were given to the East India Company. That Company acquired these powers about the end of the reign of Charles the Second; and they were afterwards more fully, as well as more legally, given by Parliament after the Revolution. From this time, the East India Company was no longer merely a mercantile company, formed for the extension of the British commerce: it more nearly resembled a delegation of the whole power and sovereignty of this kingdom sent into the East. From that time the Company ought to be considered as a subordinate sovereign power: that is, sovereign with regard to the objects which it touched; subordinate with regard to the power from whence its great trust was derived.

Under these successive arrangements things took a course very different from their usual order. A new disposition took place, not dreamt of in the theories of speculative politicians, and of which few examples in the least resembling it have been seen in the modern world, none at all in the ancient. In other instances, a political body that acts as a commonwealth was first settled, and trade followed as a consequence of the protection obtained by political power; but here the course of affairs was reversed. The constitution of the Company began in commerce and ended in empire. Indeed, wherever the sovereign powers of peace and war are given, there wants but time and circumstance to make these powers supersede every other. The affairs of commerce will fall at last into their proper rank and situation. However primary in their original intention, they will become secondary. The possession, therefore, and the power of assertion of these great authorities coinciding with the improved state of Europe, with the improved state of arts in Europe, with the improved state of laws, and, what is much more material, the improved state of military discipline, more and more perfected every day with us,—universal improvement in Europe coinciding with the general decay of Asia, (for the proud day of Asia is passed,) this improvement coinciding with the relaxation and dissolution of the Mogul government, with the decline of its warlike spirit, with the total disuse of the ancient strictness of the military discipline established by Tamerlane, the India Company came to be what it is, a great empire, carrying on, subordinately, a great commerce; it became that thing which was supposed by the Roman law irreconcilable to reason and propriety,—eundem negotiatorem et dominum: the same power became the general trader, the same power became the supreme lord.

In this exalted situation, the India Company, however, still preserves traces of its original mercantile character. The whole exterior order of its political service is carried on upon a mercantile plan and mercantile principles. In fact, the East India Company in Asia is a state in the disguise of a merchant. Its whole service is a system of public offices in the disguise of a counting-house. Accordingly, the whole external order and series of the service, as I observed, is commercial; the principal, the inward, the real, is almost entirely political.

This system of the Company's service, its order and discipline, is necessary to be explained to your Lordships, that you may see in what manner the abuses have affected it. In the first place, all the persons who go abroad in the Company's civil service enter as clerks in the counting-house, and are called by a name to correspond to it,—writers. In that condition they are obliged to serve five years. The second step is that of a factor, in which they are obliged to serve three years. The third step they take is that of a junior merchant, in which they are obliged to serve three years more. At that period they become senior merchants, which is the highest stage of advance in the Company's service,—a rank by which they had pretensions, before the year 1774, to the Council, to the succession of the Presidency, and to whatever other honors the Company has to bestow.

The Company had, in its early times, established factories in certain places; which factories by degrees grew to the name of Presidencies and Council, in proportion as the power and influence of the Company increased, and as the political began first to struggle with, and at length to predominate over, the mercantile. In this form it continued till the year 1773, when the legislature broke in, for proper reasons urging them to it, upon that order of the service, and appointed to the superior department persons who had no title to that place under the ordinary usage of the service. Mr. Hastings and Mr. Harwell, whatever other titles they might have had, held solely under the act of Parliament nominating them to that authority; but in all other respects, except where the act and other subsequent acts have not broken in upon it, the whole course of the service remains upon the ancient footing, that is, the commercial footing, as to the gradation and order of service.

Your Lordships see here a regular series of gradation, which requires eleven years before any persons can arrive at the highest trusts and situations. You will therefore be astonished, when so long a probationary service was required, that effects very different from those to be expected from long probation have happened, and that in a much shorter time than those eleven years you have seen persons returning into this kingdom with affluent, with overbearing fortunes. It will be a great part of your inquiry, when we come before your Lordships to substantiate evidence against Mr. Hastings, to discover how that order came to be so completely broken down and erased that scarce a trace of it for any good purpose remains. Though I will not deny that that order, or that any order in a state, may be superseded by the ruling power, when great talents, upon pressing exigencies, are to be called forth, yet I must say the order itself was formed upon wise principles. It furnished the persons who were put in that course of probation with an opportunity (if circumstances enabled them) of acquiring experience in business of revenue, trade, and policy. It gave to those who watched them a constant inspection of their conduct through all their progress. On the expectants of office it imposed the necessity of acquiring a character in proportion to their standing, in order that all which they had gained by the good behavior of years should not be lost by the misconduct of an hour. It was a great substantial regulation. But scarce a trace of the true spirit of it remains to be discovered in Mr. Hastings's government; for Mr. Hastings established offices, nay, whole systems of offices, and especially a system of offices in 1781, which being altogether new, none of the rules of gradation applied to them; and he filled those offices in such a manner as suited best, not the constitution nor the spirit of the service, but his own particular views and purposes. The consequence has been, that persons in the most immature stages of life have been appointed to conduct affairs which required the greatest maturity of judgment, the greatest possible temper and moderation. Effects naturally consequent have followed upon it.—I shall not trouble your Lordships with any further observations on this system of gradation.

I must, however, remark, before I go further, that there is something in the representation of the East India Company in their Oriental territory different from that, perhaps, of any other nation that has ever transported any part of its power from one country to another. The East India Company in India is not properly a branch of the British nation: it is only a deputation of individuals. When the Tartars entered into China, when the Arabs and Tartars successively entered into Hindostan, when the Goths and Vandals penetrated into Europe, when the Normans forced their way into England, indeed, in all conquests, migrations, settlements, and colonizations, the new people came as the offset of a nation. The Company in India does not exist as a national colony. In effect and substance nobody can go thither that does not go in its service. The English in India are nothing but a seminary for the succession of officers. They are a nation of placemen; they are a commonwealth without a people; they are a state made up wholly of magistrates. There is nothing to be in propriety called people, to watch, to inspect, to balance against the power of office. The power of office, so far as the English nation is concerned, is the sole power in the country: the consequence of which is, that, being a kingdom of magistrates, what is commonly called the esprit du corps is strong in it. This spirit of the body predominates equally in all its parts; by which the members must consider themselves as having a common interest, and that common interest separated both from that of the country which sent them out and from that of the country in which they act. No control upon them exists,—none, I mean, in persons who understand their language, who understand their manners, or can apply their conduct to the laws. Therefore, in a body so constituted, confederacy is easy, and has been general. Your Lordships are not to expect that that should happen in such a body which never happened in any body or corporation,—that is, that they should, in any instance, be a proper check and control upon themselves. It is not in the nature of things. The fundamental principle of the whole of the East India Company's system is monopoly, in some sense or other. The same principle predominates in the service abroad and the service at home; and both systems are united into one, animated with the same spirit, that is, with the corporate spirit. The whole, taken together, is such as has not been seen in the examples of the Moors, the Portuguese, the Spaniards, the Romans,—in no old, in no recent examples. The Dutch may resemble it, but they have not an empire properly so denominated. By means of this peculiar circumstance it has not been difficult for Mr. Hastings to embody abuse, and to put himself at the head of a regular system of corruption.