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Reflections: The Newsletter of the Edmund Burke Society

Uncommon Law

By Frederick G. Whelan

The Writings and Speeches of Edmund Burke, Volume VII: India. The Hastings Trial 1789-1794, Edited by P. J. Marshall, Clarendon Press (Oxford), 2000

This volume is the seventh to appear in the new Oxford edition of Burke’s works under the general editorship of Paul Langford. A few of Burke’s very early statements on India appeared in Volume II; the volume under review is the third and final volume devoted entirely to Burke’s involvement with Indian affairs, all of them edited by P. J. Marshall. Volume V covered Burke’s efforts from 1777 to 1785, including such major speeches as those on Fox’s India Bill and the Nabob of Arcot’s Debts. Volume VI followed the prosecution of Warren Hastings from the earliest preliminaries, through the impeachment in the House of Commons, to Burke’s spectacular four-day speech opening the trial in the House of Lords in 1788. Volume VII carries this episode to its conclusion with Burke’s even more massive, seven-day speech summing up the case in May and June of 1794, a performance that occupies about two thirds of this volume.

Much of what counts (indispensably) as Burke’s “works” takes the form of speeches, primarily those made in parliament. This is especially true of what he had to say on Indian matters. Two consequences follow. First, it is not feasible to think of publishing his “complete” works: an editor must distinguish the more substantial speeches from partial manuscript notes and shorthand reports of brief statements or exchanges made on the floor of the House. Marshall therefore provides a ten-page appendix listing all of Burke’s known public statements on India, however ephemeral, during the period covered by this volume, in addition to the more solid texts that he prints. Second, there are often two versions of the speeches (and sometimes a third, when Burke himself prepared a published version): a manuscript or notes of what Burke intended to say, and a shorthand report, presumably of what he actually said. An editor must choose which of these is to be preferred—a question on which, from the point of view of the student of Burke’s ideas, there is no obviously correct answer. Burke’s first editors, in the 1810s, combined the available sources to produce polished texts of the speeches, which have usually been followed in subsequent editions. Marshall, in contrast, most notably in the lengthy “Speech in Reply,” has chosen to print the bare shorthand report, adding only punctuation. This means that the previously available versions have not been entirely superseded: diligent students of Burke will in the future want to compare Marshall’s and the older versions and take note of small but sometimes interesting differences.

In the impeachment trial (which took place sporadically over seven years) Burke, as mentioned, delivered the momentous opening and closing speeches on behalf of his fellow Managers appointed by the Commons. During the course of the trial it was decided to reduce the numerous original charges against Hastings to four. Of these, Burke handled one, the so-called “Sixth Article,” which concerned “presents” received by Hastings—in other words, bribery or pecuniary corruption. In April and May, 1789, Burke delivered a four-day speech on this article, one of his major efforts during this period. In this instance, however, Marshall has chosen the opposite method from the one he uses for the “Reply,” printing what exists of Burke’s manuscript rather than the complete shorthand text. The result is that we get parts of what Burke said on only two of the four days, and the speech is reduced from 200-300 pages in older editions to thirty pages in this. Marshall does not adequately explain this editorial decision, referring only (unaccountably) to “constraints of space.” The “Speech on the Sixth Article” is no doubt not as important as some others, but it is nonetheless one of Burke’s major speeches. Furthermore, although bribery is a relatively mundane matter, the whole theme of corruption in India and the danger that it would infect the British political system were quite important to Burke. The short shrift given to this speech is thus the most glaring deficiency of this volume and the main reason why students of Burke will have to continue to consult older editions.

Devoting three volumes in this edition entirely to Burke’s Indian texts is a reasonable procedure that facilitates the study of the Indian dimension of Burke’s career. It could be objected, however, that it obscures the fact that Burke was often concerned, intellectually and politically, with various matters simultaneously. Most importantly, the period covered by this volume (1789-94) coincides exactly with the French Revolution, a fact that Marshall scarcely mentions in his Introduction. India and France surely came to be joined in Burke’s outlook, and some have argued that his thinking on each was shaped, to some degree, by the other. Both involved self-serving and ambitious cliques of revolutionaries who (Burke thought) were wantonly destroying traditional orders, and both operations were massively corrupt, being financed by large-scale confiscations of property. Burke’s association of these Indian themes and Jacobinism is mentioned in his “Speech in Reply” as well as in his correspondence of this period. Since Burke’s “Reply” came toward the end of the year of Terror in France (Thermidor was to come a month later), it is suggestive that Burke dwelt at length in that speech (to an audience of Lords) on the violence done to the old aristocracies of lndia.

Another similarity that Burke saw between Hastings’s regime and the French revolutionaries was their use of lawless power. This theme may be related to the second longest text in this volume, Burke’s relatively obscure Report on the Lords Journals, in which the Managers’ case for greater latitude in procedures and rules of evidence at the trial is made. This document pertains to an issue on which Marshall provides useful information in his Introduction—the (successful) effort by pro-Hastings judges in the House of Lords to obstruct and delay the proceedings (as Burke saw it) by insisting on strict procedures conforming to those used in regular courts. In opposition to this, Burke cited precedents extending back over 400 years to argue that impeachments were governed by the looser standards of what he termed the “law of Parliament.” The problem here is that Hastings’s trial—like many impeachments (a procedure that Burke upheld)—could be construed as a political trial, a mere act of power directed against a political opponent masquerading as a legal trial, and the more so insofar as it departed from strict legal standards of due process. We then have the possibly worrisome spectacle of Burke, who elsewhere strongly defended the rule of law, deploying a quasi-legal argument, with detailed references to precedents and authorities, to support his call for a relaxation of evidentiary standards in his determination to convict Hastings. Of course, Burke was convinced that Hastings was guilty of “oppression” and other great offenses against “immutable justice.” Impeachments, he apparently believed, were suitable vehicles for prosecuting such vaguely defined (though very real) offenses, and for this purpose he appealed to the “legal” principle that the best evidence that the nature of the case will admit should be allowed. Burke’s struggle to see justice prevail in the face of skepticism, not only from imperial realists but from procedure-minded judges, is surely of interest today, as we witness similar attempts to bring political criminals to the bar of legal tribunals.

We may conclude by reviewing some of the principal substantive themes in Burke’s thought that occur in his “Speech in Reply.” Burke accused Hastings of despotic rule in India, and, to make this case, he rejected Hastings’s claim that Asia was inveterately despotic and had to be governed in this fashion, a claim in which Hastings followed the common opinion associated with Montesquieu. Despite his admiration of Montesquieu in other respects, Burke rejects his theory of oriental despotism in strong terms, offering instead a sympathetic survey of Indian society as governed according to its own largely beneficial customs and laws.

Burke condemned Hastings not only in the name of Indian tradition but, most notably and forcefully, by reference to “that Law which governs all Law: the Law of our Creator, the law of humanity, Justice, Equity; the Law of Nature and of Nations.” Burke’s references here to this higher law, indeed, are among the best evidence—second only in importance to his rejection of “geographical morality” on the first day of his speech in opening the trial—for the interpretation of Burke as a natural law thinker.

Finally, if Burke ended his first day’s oration with an invocation of natural justice, he earlier (and frequently) appealed to the natural sentiments that supported the quest for justice. For example, denying accusations that he was motivated by political revenge, he defended the idea of justice as involving a kind of public revenge against wrongdoers, driven in this case by the perfectly natural feeling of resentment arising from sympathy with Indians. Attempts to arouse the sympathy of his audiences for the fate of Britain’s distant and exotic Indian subjects run through all of Burke’s major Indian speeches, along with his efforts to demonstrate the common humanity that would make such sympathy possible. In making available the texts that show Burke’s sustained campaign in this cause, this volume, along with its predecessors, performs a valuable service.

This review is from Reflections, Vol. 2, Nos. 3 & 4 (2001), and was first published accompanying Vol. 41, Nos. 3 & 4 of The University Bookman.

Posted: March 30, 2014

 
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