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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, whọ 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,
Of this great
and to remove all real restraints on their actionis, may be in time formed between the Servants, Directors, Prosecutors, and Court. 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 mnade upon him by the Court of Directors should be submitted to the Company's lawyers, and that they should be perfectly instructed to prosecute
In his Minute of that date, he says, " that the state of his health had long since rendered * 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, as that no merit had been given him for the offer; " that a most unjustifiable advantage had been at
tempted 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.” p. Mr. Barwell's reflections on the proceedings of the Court of Directors are not altogether clearly expressed; nor does it appear distinctly to what facts he alludes. He asserts, that a most unjustifiable advantage had been attempted to be made of his offer. The fact is, the Court of Directors have no where declined accepting it; on the contrary, they caution the Governour-General and Council about the manner of receiving the tender of the money, which they expect him to make. They say nothing of
any call made on them by Mr. Barwell'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.
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 bis 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 induced 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
may be presumed that great alterations might have happened in the state of the evi-, dence against him.
In the subsequent proceedings of the Governour-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 lazo 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