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

SIXTH DAY, WEDNESDAY, JUNE 11, 1794

My Lords,—Your Lordships will recollect that we closed the last day of your proceeding in this trial at a most interesting part of our charge, or rather of our observations upon that charge. We closed at that awful moment when we found the first women of Oude pillaged of all their landed and of all their moneyed property, in short, of all they possessed. We closed by reciting to you the false pretence on which this pillage was defended, namely, that it was the work of the Nabob. Now we had before proved to you, from evidence adduced by the prisoner himself, that this Nabob was a mere tool in his hands; and therefore, if this pretence be true, it aggravates his guilt: for surely the forcing a son to violate the property of his mother must everywhere be considered a crime most portentous and enormous. At this point we closed; and after the detail which has been given you already of these horrible and iniquitous proceedings, some apology may perhaps be necessary for entering again into the refutation of this iniquitous pretence.

My honorable fellow Manager who preceded me in this business did, in his remarks upon the inference drawn by the prisoner's counsel from the seizure of the Begums' treasures by the Nabob, as evidence of their guilt, as he ought to do,—he treated it with proper contempt. I consider it, indeed, to be as little an evidence of their guilt as he does, and as little a defence of that seizure as he does. But I consider it in another and in a new light, namely, as a heavy aggravation of the prisoner's crimes, and as a matter that will let you into the whole spirit of his government; and I warn your Lordships against being imposed on by evasions, of which if it were possible for you to be the dupes, you would be unfit to be judges of the smallest matters in the world, civil or criminal.

The first observation which I shall beg leave to make to your Lordships is this, that the whole of the proceedings, from beginning to end, has been a mystery of iniquity, and that in no part of them have the orders of the Company been regarded, but, on the contrary, the whole has been carried on in a secret and clandestine manner.

It is necessary that your Lordships should be acquainted with the manner in which the correspondence of the Company's servants ought to be carried on and their proceedings regulated; your Lordships, therefore, will please to hear read the orders given concerning correspondence of every kind with the country powers. You will remember the period when these orders were issued, namely, the period at which the act passed for the better direction of the servants of the Company. By this act Mr. Hastings was appointed to be Governor-General, and the Court of Directors was required by that act to prepare orders and instructions, which Mr. Hastings was required by the same act to comply with. You will see what these instructions and orders were, and in what manner he has complied with them.

Extract of General Instructions to the Governor-General and Council, 29th of March, 1774.

"We direct that you assemble in Council twice every week, and that all the members be duly summoned; that the correspondence with the princes or country powers in India be carried on by the Governor-General only, but that all letters sent by him be first approved in Council, and that he lay before the Council, at their next meeting, all letters received by him in the course of such correspondence, for their information. We likewise direct that a copy of such parts of the country correspondence be communicated to our Board of Trade: (to be constituted as hereinafter mentioned) as may any ways relate to the business of their department."

You will observe, my Lords, two important circumstances in these instructions: first, that, after the board had regularly met, the Persian correspondence, kept by the Governor only, was to be communicated to the Council; and, secondly, that he should write no answer to any part of the business until he had previously consulted the Council upon it. Here is the law of the land,—an order given in pursuance of an act of Parliament. Your Lordships will consider how Mr. Hastings comported himself with regard to those orders: for we charge it as a substantive crime, independent of the criminal presumptions arising from it, that he violated an act of Parliament which imposed direct instructions upon him as to the manner in which he was to conduct all matters of business with the native powers.

My Lords, we contend strongly that all the positive rules and injunctions of the law, though they are merely positive, and do not contain anything but mere matters of regulation, shall be strictly observed. The reason is this, and a serious reason it is: official tyranny and oppression, corruption, peculation, and bribery are crimes so secret in their nature that we can hardly ever get to the proof of them without the assistance of rules, orders, and regulations of a positive nature, intended to prevent the perpetration of these crimes, and to detect the offender in case the crimes should be actually perpetrated. You ought, therefore, to presume, that, whenever such rules or laws are broken, these crimes are intended to be committed; for you have no means of security against the commission of secret crimes but by enforcing positive laws, the breach of which must be always plain, open, and direct. Such, for instance, is the spirit of the laws, that, although you cannot directly prove bribery or smuggling in a hundred cases where they have been committed, you can prove whether the proper documents, proper cockets, proper entries in regular offices have been observed and performed, or not. By these means you lock the door against bribery, you lock the door against corruption, against smuggling and contraband trade. But how? By falling upon and attacking the offence? No, by falling upon and attacking the breach of the regulation. You prove that the man broke the regulation, and, as he could have no other motive or interest in breaking it, you presume that he broke it fraudulently, and you punish the man not for the crime the regulation was meant to prevent, but you punish him for the breach of the regulation itself.

Next to the breach of these positive instructions, your Lordships will attend to the consequent concealment and mystery by which it was accompanied. All government must, to preserve its authority, be sincere in its declarations and authentic in its acts. Whenever in any matter of policy there is a mystery, you must presume a fraud; whenever in any matter of money there is concealment, you must presume misconduct: you must therefore affix your punishment to the breach of the rule; otherwise the conviction of public delinquents would be unattainable.

I have therefore put before you that rule which he has violated; and we, the Commons, call upon your Lordships to enforce that rule, and to avenge the breach of it. You have seen the consequences of breaking the rule; and we have charged and do charge it as a heavy aggravation of those consequences, that, instead of consulting the Council, instead of laying the whole correspondence before them, instead of consulting them upon his answers, he went himself up into the country, took his Majesty's chief-justice along with him, and made that person the instrument of those wrongs, violences, robberies, and concealments which we call upon your Lordships to punish.

My Lords, an extraordinary circumstance occurred in the course of our proceedings in another place, which I must state, to show you in what a horrible manner your laws have been trampled upon and despised. None of the proceedings which have been last stated to your Lordships respecting the seizure of the treasures of the Begums appear upon any public record whatever. From the manner in which they came to our knowledge, your Lordships will perceive what must have been the prisoner's own opinion of the horrible nature of proceedings which he thought so necessary to be concealed.

Whilst we were inquiring into the violences committed against the Begums, in breach of the treaty entered into with them, there came into my hands an anonymous letter containing a full account of all the matter which has lately been stated to you. It came anonymously; and I did not know from what quarter it came. I do not even know with certainty at this hour: I say, not with certainty, for I can only form a conjecture. This anonymous communication enabled us to produce all the correspondence with Mr. Middleton respecting the cruelties exercised towards the Begums and their eunuchs in order to extort money. We found the names of Major Gilpin and several other persons in these letters. We also found in them a strong fox smell of a Sir Elijah Impey, that his brush and crime had left behind him; we traced him by that scent; and as we proceeded, we discovered the footsteps of as many of the wolves as Mr. Hastings thought proper to leave there. We sent for and examined Mr. Middleton, and Major Gilpin produced his correspondence. When we applied to Mr. Middleton, we found that all this part of his correspondence had been torn out of his book; but having come at it by means of our anonymous communication, we subsequently proved and established it, in the manner we have done before your Lordships. Here, then, you have important matter which this anonymous letter has brought to light; and otherwise the whole of this correspondence, so essential to the interests and justice of Great Britain, would have been concealed by this wicked man. Thus, I say, his violation of a positive law would have remained undiscovered, if mere accident had not enabled us to trace this iniquity to its source. Therefore I begin our proceedings this day by stating to your Lordships this fact, and by calling upon your justice to punish him for this violation of the laws of his country.

We have told you who the instruments were by which all this wickedness was committed, Mr. Middleton and Mr. Johnson, persons who were sent as ambassadors to represent the interests of the Company at the court of an independent prince. Over this prince they usurped an absolute power; they even made use of British officers in his own service and receiving his pay, to enslave his person, and to force him to rob his kindred. These agents were aided by an English chief-justice, sent under the authority of an act of Parliament to represent the sovereign majesty of English justice, and to be a restraint upon the misconduct of the Company's servants. These are the instruments with which this man works. We have shown you his system; we have shown you his instruments: we will now proceed with the examination of the pretences upon which this horrid and nefarious act is attempted to be justified. We have not entered into this examination for the sake of refuting things that want no refutation, but for the purpose of showing you the spirit of the whole proceeding, and making it appear to your Lordships, as I trust it will appear, that the wicked act done there is not half so bad as the wicked defence made here.

The first part of Sir Elijah Impey's commission, as your Lordships will remember, was to seize upon the Begums' treasures. He had likewise another budget of instructions, which has been discovered in the trunks of which your Lordships have heard,—secret instructions to be given by him to Mr. Middleton for the furtherance of this business. And that his office of Chief-Justice should not lie dormant, he was commissioned to seek for affidavits or written testimony from any persons, for the purpose of convicting these women of a design of atrociously revolting against their son, and deposing him from the government, with a view of getting rid of the English inhabitants. This was the accusation; and the evidence to support it Sir Elijah Impey was sent to collect.

My Lords, I must here observe to your Lordships that there is no act of violence which, merely as an act of violence, may not in some sort be borne: because an act of violence infers no principle; it infers nothing but a momentary impulse of a bad mind, proceeding, without law or justice, to the execution of its object. For at the same time that it pays no regard to law, it does not debauch it, it does not wrest it to its purposes: the law disregarded still exists; and hope still exists in the sufferer, that, when law shall be resorted to, violence will cease, and wrongs will be redressed. But whenever the law itself is debauched, and enters into a corrupt coalition with violence, robbery, and wrong, then all hope is gone; and then it is not only private persons that suffer, but the law itself, when so corrupted, is often perverted into the worst instrument of fraud and violence; it then becomes most odious to mankind, and an infinite aggravation of every injury they suffer.

We have therefore in our charge strongly reprobated Sir Elijah Impey's going to take such affidavits. "Oh! but," they say, "a judge may take an affidavit in his chamber privately; and he may take an affidavit, though not exactly in the place of his jurisdiction, to authenticate a bond, or the like."—We are not to be cheated by words. It is not dirty shreds of worn-out parchments, the sweepings of Westminster Hall, that shall serve us in place of that justice upon, which the world stands. Affidavits! We know that in the language of our courts affidavits do not signify a body of evidence to sustain a criminal charge, but are generally relative to matter [matters?] in process collateral to the charge, which, not coming before the jury, are made known to the judge by way of affidavit.

But was it ever heard, or will it be borne, that a person exercising a judicial office under his Majesty should walk beyond the sphere of his jurisdiction,—that he should desert the station in which he was placed for the protection of the natives, and should march to such a place as Lucknow in order to take depositions for criminating persons in that country, without so much as letting these poor victims know one article in the depositions so taken? These depositions, my Lords, were made to criminate, they were meant to justify a forfeiture, and are not in the nature of those voluntary affidavits which, whether made within jurisdiction or without, whether made publicly or privately, signify comparatively nothing to the cause. I do not mean, to say that any process of any court has not its weight, when the matter is within it in the ordinary course of proceedings: it is the extraordinary course, the extrajudicial conduct, which divests it of that just weight it otherwise would have.

This chief-justice goes to Lucknow, where he holds his court, such as it was. He is ready to authenticate any process by the signature of the English chief-justice, in a court which he holds by night, in a court which he holds in darkness and secrecy. He holds his court in Fyzabad; he holds it, unknown to the Nabob of Oude, in his own capital, and without giving him the least knowledge of or any notice of what he was proceeding to do. He holds it at the lodgings of Colonel Morgan, a pensioner of the Nabob; and the person assisting him is Mr. Middleton, who is likewise, as we have proved to you, one of the Nabob's pensioners, a monopolizer of trade in the country, and a person who received much the major part of his emoluments from the Nabob's hands.

In that clandestine manner, in the Nabob's own house, in his own capital city, in the lodging of his dependant and pensioner, Colonel Morgan, with no other witness that we know of than Mr. Middleton, was this iniquitous, dark procedure held, to criminate the mother of the Nabob. We here see a scene of dark, mysterious contrivance: let us now see what is brought out in the face of open day. The attestations themselves, which you have seen on the record before you. They were brought out—where? there? No: they were brought out in another place; they were brought out at Calcutta,—but were never communicated to the Nabob. He never knew anything of the matter. Let us now see what those attestations were. Your Lordships will bear in mind that I do not advert to this thing, which they bring as evidence, in the way of imputation of its being weak, improper, and insufficient evidence, but as an incontrovertible proof of crimes, and of a systematic design to ruin the accused party, by force there and by chicane here: these are the principles upon which I am going to talk to you upon this abominable subject,—of which, I am sorry to say, I have no words sufficient to express my horror. No words can express it; nor can anything but the severity of your Lordships' judgments find an adequate expression of it. It is not to be expressed in words, but in punishment.

Having stated before whom the evidence collected in this body of affidavits was taken, I shall now state who the persons were that gave it. They were those very persons who were guilty of robbing and ruining the whole country: yes, my Lords, the very persons who had been accused of this in the mass by Mr. Hastings himself. They were nothing less than the whole body of those English officers who were usurping the office of farmers-general, and other lucrative offices in the Nabob's government, and whose pillage and peculations had raised a revolt of the whole kingdom against themselves. These persons are here brought in a mass to clear themselves of this charge by criminating other persons, and clandestinely imputing to them the effect of their own iniquity.

But supposing these witnesses to be good for anything, supposing it fit that the least attention should be paid them, the matter of their testimony may very possibly be true without criminating the Begum. It criminates Saadut Ali Khân, the brother of the Nabob; the word Begum is never mentioned in the crimination but in conjunction with his; and much the greater part of it criminates the Nabob himself. Now, my Lords, I will say, that the matter of these affidavits, forgetting who the deponents were, may possibly be true, as far as respects Saadut Ali Khân, but that it is utterly as improbable, which is the main point and the stress of the thing, with respect to the Begums, as it is impossible with respect to the Nabob. That Saadut Ali, being a military man, a man ambitious and aspiring to greatness, should take advantage of the abuses of the English government and of the discontent of the country, that he should, I say, raise a revolt against his brother is very possible; but it is scarcely within possibility that the mother of the Nabob should have joined with the illegitimate son against her legitimate son. I can only say that in human affairs there is the possibility of truth in this. It is possible she might wish to depose her legitimate son, her only legitimate son, and to depose him for the sake of a bastard son of her husband's,—to exalt him at the expense of the former, and to exalt, of course, the mother of that bastard at her own expense, and to her own wrong. But I say, that this, though possible, is grossly improbable. The reason why the Begum is implicated in this charge with Saadut Ali by the affidavits cannot escape your notice. Their own acquittal might be the only object of the deponents in their crimination of the latter; but the treasures of the former were the objects of their employers, and these treasures could not be come at but by the destruction of the Begums.

But, my Lords, there are other affidavits, or whatever your Lordships may call them, that go much further. In order to give a color to the accusation, and make it less improbable, they say that the Nabob himself was at the bottom of it, and that he joined with his brother and his mother to extirpate out of his dominions that horrible grievance, the English brigade officers,—those English officers who were the farmers-general, and who, as we have proved by Mr. Hastings's own evidence, had ruined the country. Nothing is more natural than that a man, sensible of his duty to himself and his subjects, should form a scheme to get rid of a band of robbers that were destroying his country and degrading and ruining his family. Thus you see a family compact naturally accounted for: the Nabob at the head of it, his mother joining her own son, and a natural brother joining in the general interests of the family. This is a possible case. But is this the case pressed by them? No: they pass lightly over the legitimate son; they scarcely touch upon Saadut Ali Khân; they sink the only two persons that could give probability or possibility to this business, and endeavor to throw the whole design upon these two unfortunate women.

Your Lordships see the wickedness and baseness of the contrivance. They first, in order to keep the whole family in terror, accuse the whole family; then, having possessed themselves of the treasures of the Begums upon another pretence, they endeavor to fix upon them that improbable guilt which they had with some degree of probability charged upon the whole family, as a farther justification of that spoliation. Your Lordships will see what an insult is offered to the Peers of Great Britain, in producing before you, by way of defence, such gross, scandalous, and fraudulent proceedings.

Who the first set of witnesses were which they produced before their knight-errant chief-justice, Sir Elijah Impey, who wandered in search of a law adventure, I have laid open to your Lordships. You have now had an account of the scandalous manufacture of that batch of affidavits which was in the budget of Sir Elijah Impey,—that Pandora's box which I have opened, and out of which has issued every kind of evil. This chief-justice went up there with the death-warrant of the Begums' treasures, and, for aught he knew, the death-warrant of their persons. At the same time that he took these affidavits he became himself a witness in this business; he appears as a witness. How? Did he know any one circumstance of the rebellion? No, he does not even pretend to do so. "But," says he, "in my travels I was obliged to avoid Fyzabad, upon account of the suspected rebellion there." Another chief-justice would have gone fifty miles about to avoid Lucknow, for everybody knows that Lucknow was the focus and centre of extortion, corruption, and peculation, and that a worse air for the lungs of a chief-justice could not be found in the world. If his lungs wanted the benefit of pure air, he would even have put himself in the focus of a rebellion, to have kept at a distance from the smell of carrion and putrid corruption of every kind that was at Lucknow. A chief-justice may go to a place where a rebellion is raging, he may die a martyr to his honor; but a chief-justice who puts himself into the focus of peculation, into the focus of bribery, into the focus of everything that is base and corrupt,—what can we expect from him but that he will be engaged in clandestine jobs there? The former might kill Sir Elijah Impey, the knight-errant, but the chief-justice would remain pure and entire; whereas Sir Elijah Impey has escaped from Lucknow, and the chief-justice is left by Mr. Hastings to shift for himself.

After mentioning this violation of the laws of hospitality by Sir Elijah Impey, I would ask, Was any notice given by him, or by any of Mr. Hastings's agents, to the Nabob, who was so immediately interested in this matter? Was any notice given to the Begums that any such charge was entertained against them? Not a word. Was it notified to the eunuchs? Was it to Saadut Ali Khân? Not a word. They were all within their power. The eunuchs were a year in irons, and they were subjected to the want of food and water for a part of that year. They were dragged from Fyzabad to Lucknow, and from Lucknow to Fyzabad. During all that time was there a word mentioned to them by any one person on the part of Mr. Hastings, that they were accused of this matter? Not a word.

We now submit to your Lordships' vindictive justice and condemnation this recriminatory defence, in which every principle of justice has been violated. And now I will ask your Lordships whether you would have suffered such a procedure in the case of the prisoner at your bar. It was asked by a person of great authority in this House, when we were going to produce certain evidence against Mr. Hastings, (we do not say whether we offered to produce it properly or improperly,—that is another matter,)—we were asked, I say, whether our intentions of producing that evidence had been communicated to Mr. Hastings. Had he had an opportunity of cross-examining the witnesses who had given that evidence? No, he added, that evidence must be rejected. Now I say to your Lordships, upon the same ground, deal with the Begums as you dealt with Mr. Hastings. Do not keep two weights and measures for different persons in the same cause. You would not suffer such evidence to be produced against him; you will not assuredly suffer such evidence to be produced to you in his favor and against them.

My Lords, the cause between this man and these unfortunate women is at last come into Westminster Hall; the cause is come to a solemn trial; and we demand other witnesses and other kinds of proof than what these affidavits furnish. My Lords, the persons who have been examined here are almost all of them the same persons who made these affidavits; but there is this material difference in their evidence: at your Lordships' bar they sunk all those parts of their former evidence which criminated the Nabob and Saadut Ali, and confined their testimony wholly to what related to the Begums. We were obliged, by a cross-examination, to squeeze out of them the disavowal of what they had deposed on the former occasion. The whole of their evidence we leave to the judgment of your Lordships, with these summary remarks: first, that they are the persons who were to profit by their own wrong; they are the persons who had seven months' arrears paid to them out of the money of these unfortunate ladies; they are the persons who, to justify the revolt which they had caused in the country by their robbery, charge their own guilt upon others. The credibility of their evidence is therefore gone. But if it were not affected by these circumstances, Mr. Hastings has put an end to it by telling you that there is not one of them who is to be credited upon his oath,—no, not in a court-martial; and can it, therefore, be expected that in a case of peculation they will do otherwise than acquit the party accused? He has himself laid before you the horrible state of the whole service; your Lordships have it fresh in your memories, and ringing in your ears. You have also heard from witnesses brought by Mr. Hastings himself, that these soldiers committed misdemeanors of the very same kind with those which we have stated. They ought not, therefore, to be listened to for a moment; and we aver that it is an aggravation of the prisoner's crimes, that he has brought the instruments of his guilt, the persons of whom he has complained as having ruined and destroyed that country, and whom he had engaged, at the Nabob's desire, in the treaty of Chunar, to send out of the country, as being a nuisance in it,—to bring, I say, these people here, to criminate, at a distance of nine thousand miles, these unfortunate women, where they have neither attorney or agent who can from local knowledge cross-examine them. He has the audacity to bring these people here; and in what manner they comport themselves, when they come here, your Lordships have seen.

There is one of them whom we cannot pass by: that is, Captain Gordon. The other witnesses, who appeared here as evidences to criminate the Begums, did it by rumors and hearsays. They had heard some person say that the Begums had encouraged rebellion, always coupling them with Saadut Ali Khân, and sometimes with the Nabob, because there might have been some probability for their charge in the transactions with Saadut Ali Khân, which, though impossible with regard to the Begums, they thought would implicate him [them?] in his designs. But Captain Gordon is to give a different account of the proceedings.

Captain Gordon was one of Colonel Hannay's under-farmers. He was hunted out of the country and, as one of the Begums says, pursued by a thousand of the zemindars, for robbing the whole country. This woman, through respect to the British name, that name which guarantied her possessions to her, receives this Captain Gordon and Captain Williams with every mark of kindness, hospitality, and protection, that could be given them. She conveys them from the borders to the city of Fyzabad, and from Fyzabad, her capital, supposed to be the nest of her rebellion, on to their place of destination. They both write her letters full of expressions of gratitude and kindness for the services that they had received. They then pass on to Lucknow to Sir Elijah Impey, and there they sink every word of kindness, of any service or protection that they had received, or of any acknowledgment that they had ever made of it. They sink all this: not one word of it appears in their affidavits.

How, then, did we come to the knowledge of it? We got it from Major Gilpin, who was examined in the course of these proceedings; and we used it in our charge, from the papers that we hold in our hands. Mr. Hastings has confessed the fact; and Mr. Middleton has endeavored to slur it over, but could not completely conceal it. We have established the fact, and it is in evidence before your Lordships.

You have now, then, in this manner, got these testimonials given by English officers in favor of these women; and by the same means the letters of the latter accusing the former are come to your hands: and now these same English officers come here with their recriminatory accusation. Now why did they not make it at Lucknow? Why did not Mr. Hastings, when Mr. Middleton had such papers for him in his hands, why, I ask, did not Mr. Hastings procure some explanation of the circumstances whilst he was in India? I will read your Lordships the letter, that you may not only know, but feel, the iniquity of this business.