The reasons assigned by Mr. Barwell, in defence of the clandestine part of this transaction, seem to your Committee to be insufficient in themselves, and not very fit to be urged by a man in his station. In one place he says, that "it was not thought consistent with the public regulations that the names of any Europeans should appear." In another he says, "I am aware of the objection that has been made to the English taking farms under the names of natives, as prohibited by the Company's orders; and I must deviate a little upon this. It has been generally understood that the scope and tendency of the Honorable Company's prohibition of farms to Europeans was meant only to exclude such as could not possibly, in their own persons, come under the jurisdiction of the Duanné courts of Adawlet, because, upon any failure of engagements, upon any complaint of unjust oppression, or other cause of discontent whatever, it was supposed an European might screen himself from the process of the country judicature. But it was never supposed that an European of credit and responsibility was absolutely incapable from holding certain tenures under the sanction and authority of the country laws, or from becoming security for such native farmers, contractors, &c., &c., as he might protect and employ."
Your Committee have opposed this construction of Mr. Barwell's to the positive order which the conduct it is meant to color has violated. "Europeans of credit and responsibility," that is, Europeans armed with wealth and power, and exercising offices of authority and trust, instead of being excepted from the spirit of the restriction, must be supposed the persons who are chiefly meant to be comprehended in it; for abstract the idea of an European from the ideas of power and influence, and the restriction is no longer rational.
Your Committee are therefore of opinion that the nature of the evil which was meant to be prevented by the above orders and regulations was not altered, or the evil itself diminished, by the collusive methods made use of to evade them,—and that, if the regulations were proper, (as they unquestionably were,) they ought to have been punctually complied with, particularly by the members of the government, who formed the plan, and who, as trustees of the Company, were especially answerable for their being duly carried into execution. Your Committee have no reason to believe that it could ever have been generally understood "that the Company's prohibition of farms to Europeans was meant only to exclude such as could not possibly, in their own persons, come under the jurisdiction of the Duanné courts": no such restriction is so much as hinted at. And if it had been so understood, Mr. Barwell was one of the persons who, from their rank, station, and influence, must have been the principal objects of the prohibition. Since the establishment of the Company's influence in Bengal, no Europeans, of any rank whatever, have been subject to the process of the country judicature; and whether they act avowedly for themselves, and take farms in their own name, or substitute native Indians to act for them, the difference is not material. The same influence that screened an European from the jurisdiction of the country courts would have equally protected his native agent and representative. For many years past the Company's servants have presided in those courts, and in comparison with their authority the native authority is nothing.
The earliest instructions that appear to have been given by the Court of Directors in consequence of these transactions in Bengal are dated the 5th of February, 1777. In their letter of that date they applaud the proceedings of the board, meaning the majority, (then consisting of General Clavering, Colonel Monson, and Mr. Francis,) as highly meritorious, and promise them their firmest support. "Some of the cases" they say, "are so flagrantly corrupt, and others attended with circumstances so oppressive to the inhabitants, that it would be unjust to suffer the delinquents to go unpunished." With this observation their proceedings appear to have ended, and paused for more than a year.
On the 4th of March, 1778, the Directors appear to have resumed the subject. In their letter of that date they instructed the Governor and Council forthwith to commence a prosecution in the Supreme Court of Judicature against the persons who composed the Committee of Circuit, or their representatives, and also against Mr. Barwell, in order to recover, for the use of the Company, the amount of all advantages acquired by them from their several engagements in salt contracts and farms. Adverting, however, to the declaration made by Mr. Barwell, that he would account to the Court of Directors for the last shilling he had received and abide implicity by their judgment, they thought it probable, that, on being acquainted with their peremptory orders for commencing a prosecution, he might be desirous of paying his share of profits into the Company's treasury; and they pointed out a precaution to be used in accepting such a tender on his part.
On this part of the transaction your Committee observe, that the Court of Directors appear blamable in having delayed till February, 1777, to take any measure in consequence of advices so interesting and important, and on a matter concerning which they had made so strong a declaration,—considering that early in April, 1776, they say "they had investigated the charges, and had then come to certain resolutions concerning them." But their delaying to send out positive orders for commencing a prosecution against the parties concerned till March, 1778, cannot be accounted for. In the former letter they promise, if they should find it necessary, to return the original covenants of such of their servants as had been any ways concerned in the undue receipt of money, in order to enable the Governor-General and Council to recover the same by suits in the Supreme Court. But your Committee do not find that the covenants were ever transmitted to Bengal. To whatever cause these instances of neglect and delay may be attributed, they could not fail to create an opinion in Bengal that the Court of Directors were not heartily intent upon the execution of their own orders, and to discourage those members of government who were disposed to undertake so invidious a duty.
In consequence of these delays, even their first orders did not arrive in Bengal until some time after the death of Colonel Monson, when the whole power of the board had devolved to Mr. Hastings and Mr. Barwell. When they sent what they call their positive orders, in March, 1778, they had long been apprised of the death of Colonel Monson, and must have been perfectly certain of the effect which that event would have on the subsequent measures and proceedings of the Governor-General and Council. Their opinion of the principles of those gentlemen appears in their letter of the 28th of November, 1777, wherein they say "they cannot but express their concern that the power of granting away their property in perpetuity should have devolved upon such persons."
But the conduct of the Court of Directors appears to be open to objections of a nature still more serious and important. A recovery of the amount of Mr. Barwell's profits seems to be the only purpose which they even professed to have in view. But your Committee are of opinion that to preserve the reputation and dignity of the government of Bengal was a much more important object, and ought to have been their first consideration. The prosecution was not the pursuit of mean and subordinate persons, who might with safety to the public interest remain in their seats during such an inquiry into their conduct. It appears very doubtful, whether, if there were grounds for such a prosecution, a proceeding in Great Britain were not more politic than one in Bengal. Such a prosecution ought not to have been ordered by the Directors, but upon grounds that would have fully authorized the recall of the gentleman 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 therefore 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 Governor-General, was in effect the Supreme Council.
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.