66 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 there"fore 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 governour-general, was in effect the supreme council. 66 66 66 66 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 possible, 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 publick proceedings ought to be made for general situations, and not for personal dispositions, and not inclined to have any confidence in the effect of criminal proceedings, where no means are provided for preventing a mutual connexion 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 governourgeneral 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 connexion; 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 connexions. Their suspicions, though perhaps not rightly applied to every individual, will induce them to take indications from the situations and connexions 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 law suits, 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 governours, will merge in that of prosecutors. Their force and energy will evaporate in tedious and intricate processes; in law suits, 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 further 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 ren"dered 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." 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. Mr. Barwell's reflections on the proceedings of the court of directors are not altogether clearly expressed; nor does it appear distinctly to what THE next article of direct monopoly, subserfacts he alludes. He asserts that a most unjustifi- vient to the company's export, is saltpetre. This, able advantage had been attempted to be made of as well as opium, is far the greater part the prohis offer. The fact is, the court of directors have duce of the province of Bahar. The difference no where declined accepting it; on the contrary, between the management and destination of the they caution the governour-general and council two articles has been this: until the year 1782, about the manner of receiving the tender of the the opium has been sold in the country, and the money, which they expect him to make. They say produce of the sale laid out in country merchannothing of any call made on them by Mr. Bar-dise for the company's export. A great part of well'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 appropriate terms, their sense of all blamable conduct in their servants. 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 answers no useful purpose. Such persons are so many hands detached from the improvement, and added to the burthen, of the country. They are persons of skill drawn from the future supply of that monopoly, in favour of which they are prose 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 in-cuted. duced 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 governour 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 exacters. 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 vigour in any business under a monopoly so constituted; nor | the acts of 1773 and 1780. This system of gocan the true productive resources of the country, vernment appears to your committee to be at least in so large an article of its commerce, ever come as much disordered, and as much perverted from to be fully known. every good purpose, for which lawful rule is estabThe supply for the company's demand in Eng-lished, as the trading system has been from every land has rarely fallen short of two thousand tons, just principle of commerce. Your committee, in nor much exceeded two thousand five hundred. A tracing the causes of this disorder through its discretionary allowance of this commodity has effects, have first considered the government as it been made to the French, Dutch, and Danes, who is constituted and managed within itself, beginning purchase their allotted shares at some small ad- with its most essential and fundamental part, the vance on the company's price. The supply des-order and discipline, by which the supreme autined for the London market is proportioned to thority of this kingdom is maintained. 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. Mr. Law, chief of Patna, being examined on the effect of that monopoly, delivered his opinion, that with regard to the company's trade the monopoly was advantageous; but as sovereigns of the country they must be losers by it. These two capacities in the company are found in perpetual contradiction. But much doubt may arise, whether this monopoly will be found advantageous to the company, either in the one capacity or the other. The gross commodity, monopolized for sale in London, is procured from the revenues in Bengal; the certain is given for the hazardous. The loss of interest on the advances, sometimes the loss of the principal; the expence of carriage from Patna to Calcutta; the various loadings and unloadings, and insurance (which, though born by the company, is still insurance); the engagement for the ordnance, limited in price, and irregular in payment; the charge of agency, and management through all its gradations and successions; when all these are taken into consideration, it may be found, that the gain of the company as traders will be far from compensating their loss as sovereigns. A body like the East India company can scarcely, in any circumstance, hope to carry on the details of such a business, from its commencement to its conclusion, with any degree of success. In the subjoined estimate of profit and loss, the value of the commodity is stated at its invoice price at Calcutta. But this affords no just estimate of the whole effect of a dealing, where the company's charge commences in the first rudiments of the manufacture, and not at the purchase at the place of sale and valuation; for they may be heavy losses on the value, at which the saltpetre is estimated, when shipped off on their account, without any appearance in the account; and the enquiries of your committee to find the charges on the saltpetre previous to the shipping have been fruitless. The British government in India being a subordinate and delegated power, it ought to be considered as a fundamental principle in such a system, that it is to be preserved in the strictest obedience to the government at home. Administration in India, at an immense distance from the seat of the supreme authority; intrusted with the most extensive powers; liable to the greatest temptations; possessing the amplest means of abuse; ruling over a people guarded by no distinct or well-ascertained privileges, whose language, manners, and radical prejudices render not only redress, but all complaint on their part, a matter of extreme difficulty; such an administration, it is evident, never can be made subservient to the interests of Great Britain, or even tolerable to the natives, but by the strictest rigour in exacting obedience to the commands of the authority lawfully set over it. Vide commit No. 12. But your committee find, that this principle has been for some years very little attended to. Before the passing the act of 1773, the professed purpose of which was to secure a better subordination in the company's servants, such was the firmness with which the court of directors maintained their authority, that they dis- tee's 5th Replaced Governour Cartier, confessedly port, page 21, and Appendix a meritorious servant, for disobedience to that Report, of orders; although his case was not a great deal more than a question, by whom the orders were to be obeyed. Yet the directors were so sensible of the necessity of a punctual and literal obedience, that conceiving their orders went to the parties who were to obey, as well as to the act to be done, they proceeded with a strictness, that, in all cases, except that of their peculiar government, might well be considered as rigorous. But in proportion as the necessity of enforcing obedience grew stronger and more urgent, and in proportion to the magnitude and importance of the objects affected by disobedience, this rigour has been relaxed. Acts of disobedience have not only grown frequent, but systematick; and they have appeared in such instances, and are manifested in such a manner, as to amount, in the company's servants, to little less than absolute independence; against which, on the part of the directors, there is no struggle, and hardly so much as a protest to preserve a claim. Before your committee proceed to offer to the house their remarks on the most distinguished of these instances, the particulars of which they have already reported, they deem it necessary to enter into some detail of a transaction equally extraordinary and important, though not yet brought into the view of parliament, which appears to have laid the foundation of the principal abuses that ensued, as well as to have given strength and encouragement to those that existed. To this transaction, and to the conclusions naturally deducible from it, your committee attribute that general spirit of disobedience and independence, which has since prevailed in the government of Bengal. Your committee find, that in the year 1775 Mr. Lauchlan Macleane was sent into England as agent to the nabob of Arcot and to Mr. Hastings.-The conduct of Mr. Hastings, in assisting to extirpate, for a sum of money to be paid to the company, the innocent nation of the Rohillas, had drawn upon him the censure of the court of directors, and the unanimous censure of the court of proprietors. The former had even resolved to prepare an application to His Majesty for Mr. Hastings's dismission. Another general court was called on this proceeding. Mr. Hastings was then openly supported by a majority of the court of proprietors, who professed to entertain a good opinion of his general ability and rectitude of intention, notwithstanding the unanimous censure passed upon him. In that censure they therefore seemed disposed to acquiesce, without pushing the matter further. But, as the offence was far from trifling, and the condemnation of the measure recent, they did not directly attack the resolution of the directors to apply to His Majesty, but voted in the ballot, that it should be re-considered. The business therefore remained in suspense, or it rather seemed to be dropped, for some months, when Mr. Macleane took a step, of a nature not in the least to be expected from the condition in which the cause of his principal stood, which was apparently as favourable as the circumstances could bear. Hitherto the support of Mr. Hastings in the general court was only by a majority; but, if on application from the directors he should be removed, a mere majority would not have been sufficient for his restoration. The door would have been barred against his return to the company's service by one of the strongest and most substantial clauses in the regulating act of 1773. Mr. Macleane, probably to prevent the manifest ill consequences of such a step, came forward with a letter to the court of directors, declaring his provisional powers, and offering on the part of Mr. Hastings an immediate resignation of his office. On this occasion the directors shewed themselves extremely punctilious with regard to Mr. Macleane's powers. They probably dreaded the charge of becoming accomplices to an evasion of the act, by which Mr. Hastings, resigning the service, would escape the consequences attached by law to a dismission; they therefore demanded Mr. Macleane's written authority. This he declared he could not give into their hands, as the letter con | tained other matters of a nature extremely confidential; but that, if they would appoint a committee of the directors, he would readily communicate to them the necessary parts of the letter, and give them perfect satisfaction with regard to his authority. A deputation was accordingly named; who reported, that they had seen Mr. Hastings's instructions, contained in a paper in his own hand-writing, and that the authority for the act now done by Mr. Macleane was clear and sufficient. Mr. Vansittart, a very particular friend of Mr. Hastings, and Mr. John Stewart, his most attached and confidential dependant, attended on this occasion, and proved, that directions, perfectly correspondent to this written authority, had been given by Mr. Hastings in their presence. By this means the powers were fully authenticated; but the letter remained safe in Mr. Macleane's hands. Nothing being now wanting to the satisfaction of the directors, the resignation was formally accepted. Mr. Wheler was named to fill the vacancy, and presented for His Majesty's approbation, which was received. The act was complete, and the office, that Mr. Hastings had resigned, was legally filled. This proceeding was officially notified in Bengal, and General Clavering, as senior in council, was in course to succeed to the office of governour-general. Mr. Hastings, to extricate himself from the difficulties into which this resignation had brought him, had recourse to one of those unlooked-for and hardy measures, which characterize the whole of his administration. He came to a resolution of disowning his agent, denying his letter, and disavowing his friends. He insisted on continuing in the execution of his office, and supported himself by such reasons as could be furnished in such a cause. An open schism instantly divided the council. General Clavering claimed the office, to which he ought to succeed: and Mr. Francis adhered to him; Mr. Barwell stuck to Mr. Hastings. The two parties assembled separately, and every thing was running fast into a confusion; which suspended government, and might very probably have ended in a civil war, had not the judges of the supreme court, on a reference to them, settled the controversy by deciding, that the resignation was an invalid act, and that Mr. Hastings was still in the legal possession of his place, which had been actually filled up in England. It was extraordinary, that the nullity of this resignation should not have been discovered in England; where the act authorizing the resignation then was; where the agent was personally present; where the witnesses were examined; and where there was and could be no want of legal advice, either on the part of the company or of the Crown. The judges took no light matter upon them in superseding, and thereby condemning, the legality of His Majesty's appointment; for such it became by the royal approbation. On this determination, such as it was, the division in the meeting, but not in the minds of the | duct of the company's servants may be collected from the facts that followed it. The disobedience of Mr. Hastings has of late not only become uniform and systematical in practice, but has been in principle also supported by him and by Mr. Barwell, late a member of the supreme council in Bengal, and now a member of this house. In the consultation of the 20th of July 1778, Mr. Barwell gives it as his solemn and deliberate opinion, that "while Mr. Hastings is in the go"vernment, the respect and dignity of his station "should be supported. In these sentiments I "must decline an acquiescence in any order, "which has a tendency to bring the government "into disrepute. As the company have the means "and power of forming their own administration "in India, they may at pleasure place whom they "please at the head; but in my opinion they are "not authorized to treat a person in that post with "indignity.” council, ceased. General Clavering uniformly opposed the conduct of Mr. Hastings to the end of his life. But Mr. Hastings shewed more temper under much greater provocations. In disclaiming his agent, and in effect accusing him of an imposture the most deeply injurious to his character and fortune, and of the grossest forgery to support it, he was so very mild and indulgent as not to shew any active resentment against his unfaithful agent, nor to complain to the court of directors. It was expected in Bengal, that some strong measures would have immediately been taken to preserve the just rights of the king and of the court of directors; as this proceeding, unaccompanied with the severest animadversion, manifestly struck a decisive blow at the existence of the most essential powers of both. But your committee do not find, that any measures whatever, such as the case seemed to demand, were taken. The observations made by the court of directors on what they call "these extraordinary transactions" are just and well applied. They conclude with a declaration, By treating them with indignity (in the particu“that the measures, which it might be necessary lar cases wherein they have declined obedience to "for them to take, in order to retrieve the ho- orders) they must mean those orders, which imply nour of the company, and to prevent the like a censure on any part of their conduct, a reversal "abuse from being practised in future, should of any of their proceedings, or, as Mr. Barwell "have their most serious and earliest consider- expresses himself in words very significant, in any "ation;" and with this declaration they ap-orders that have a tendency to bring their governpear to have closed the account, and to have dismissed the subject for ever. 46 A sanction was hereby given to all future defiance of every authority in this kingdom. Several other matters of complaint against Mr. Hastings, particularly the charge of peculation, fell to the ground at the same time. Opinions of counsel had been taken, relative to a prosecution at law upon this charge, from the then attorney and the then solicitor general, and Mr. Dunning, [now the Lords Thurlow, Loughborough, and Ashburton,] together with Mr. Adair [now recorder of London]. None of them gave a positive opinion against the grounds of the prosecution. The attorney-general doubted on the prudence of the proceedings, and censured (as it well deserved) the ill statement of the case. Three of them, Mr. Wedderburn, Mr. Dunning, and Mr. Adair, were clear in favour of the prosecution. No prosecution however was had, and the directors contented themselves with censuring and admonishing Mr. Hastings. With regard to the supreme council, the members, who chose (for it was choice only) to attend to the orders, which were issued from the languishing authority of the directors, continued to receive unprofitable applauses and no support. Their correspondence was always filled with complaints, the justice of which was always admitted by the court of directors; but this admission of the existence of the evil shewed only the impotence of those, who were to administer the remedy. The authority of the court of directors, resisted with success in so capital an instance as that of the resignation, was not likely to be respected in any other. What influence it really had on the con ment into disrepute. The amplitude of this latter description reserving to them the judgment of any orders, which have so much as that tendency, puts them in possession of a complete independence; an independence, including a despotick authority over the subordinates and the country. The very means taken by the directors for enforcing their authority becomes, on this principle, a cause of further disobedience. It is observable, that their principles of disobedience do not refer to any local consideration overlooked by the directors, which might supersede their orders, or to any change of circumstances, which might render another course. advisable, or even perhaps necessary; but it relates solely to their own interiour feelings in matters relative to themselves, and their opinion of their own dignity and reputation. It is plain, that they have wholly forgotten who they are, and what the nature of their office is. Mr. Hastings and Mr. Barwell are servants of the company; and as such by the duty inherent in that relation, as well as by their special covenants, were obliged to yield obedience to the orders of their masters. They have, as far as they were able, cancelled all the bonds of this relation, and all the sanctions of these covenants. But in thus throwing off the authority of the court of directors, Mr. Hastings and Mr. Barwell have thrown off the authority of the whole legislative power of Great Britain; for, by the Regulating Act of the Thirteenth of His Majesty, they are expressly "directed and required to pay due obe"dience to all such orders as they shall receive "from the court of directors of the said united company.' Such is the declaration of the law. But Mr. Barwell declares, that he declines obedience to any orders, which he shall interpret to be |