The illegality of Empire: moral evasion and confusion of historians and literary critics in their refl ections on the impeachment trial of Warren Hastings

The illegality of Empire

Moral evasion and confusion of historians and literary critics in their reflections on the impeachment trial of Warren Hastings

Anthony Carty


In the late 18th century an Impeachment Trial of a former governor of the East India Company took place before the House of Lords in London. Warren Hastings was accused of embezzlement, extortion, and of forcing an Indian ruler, Chait Singh, out of his possessions. The case has aroused a considerable measure of interest from literary critics and historians. However, the purely legal aspect of the Impeachment has aroused less interest. The belief of non-lawyers that the legal complexities of the issues are inaccessible, or the view that there were in fact no legal rules at the time suitable to resolve the issues, are two possible explanations. However, another explanation may be that the implications of legal analysis are usually the attribution of individual and also collective guilt. If legal analysis of the Impeachment Trial points in this direction it can open a “pandora’s box” not only in India but in other parts of the former British Empire. A distinctive feature of the British conquest of India is that it began with a trial – the Impeachment of Warren Hastings. Law is about precise allocation of responsibility. It is not easily an accompaniment to the literary and historical nostalgias of Empire.

In any case it may be said, firstly the Trial appears to have attracted primarily the attention of literary critics and historians who consider it to be perhaps the spectacle of late 18th century England, not just Nicholas Dirks (Dirks 2006) himself, but also David Musselwhite in his online article The Trial of Warren Hastings (Musselwhite 1982) and Sara Suleri, with her book The Rhetoric of English India (Suleri, 1992). Secondly, a trawl of Google alerted me to the really fierce critical reviews of Dirks’ The Scandal of Empire (2006) and of Dirks himself. For instance, there is William Dalrymple’s review article in the New York Review of Books, 26 April 2007, called Plain Tales from British India (see further below), and, to take just one further example, from the Oxford History of the British Empire (volume V, Historiography, 1999), Robert Frykenberg’s comments, in the chapter on “India to 1858” on Dirks’ earlier work, The Hollow Crown: Ethnohistory of an Indian Kingdom published with Cambridge University Press in 1987 (Frykenberg, 1999). The treatment of India and this Trial in particular arouses as many passions now in Anglo-centric circles as it did two centuries ago. However, it is probably the case that Frykenberg’s concerns about the possible weaknesses of Dirks’ scholarship are similar to my own, but applied to historical method generally rather than to missed opportunities of legal history. He criticizes historians listening “to the siren song of antihistorical literary criticism” (Frykenberg, 1999: 211). Fashions such as colonial discourse, deconstruction or whatever avoid engaging with empirical evidence. However, it is likely that Frykenberg is in the same defensive camp as Dalrymple when he goes on to group these categories and methods along with “whatever else such nihilist impulses might be called”, intemperately concluding that “fulminations of this sort cannot be accepted as genuine historical understanding, certainly not by historians as such” (ibid).

I think it is necessary to engage with both the literary treatment of the Trial and with the heat of the criticism which Dirks provokes before approaching the Trial itself. The Trial was ostensibly about whether the head of the East India Company had behaved illegally, and also whether the expansion of Britain in India was illegal. Perhaps the treatment of the Trial as theatre, as a literary event, could serve as an evasion of a close examination of legal issues. Secondly, the storms raging in scholarly circles, around Dirks and others appear to me not unrelated to the possibility of evasion of the legal issues.

However, it could simply be that historians and literary critics simply do not care about law. The one extensive legal examination of the case has been by the now deceased Pakistani international lawyer, formerly at Edinburgh University, Kabir-Ur-Rahman Khan (Khan, 1988). This is a very competent and complete analysis of the legal issues from the wider context of international law as it affected European Asian relations from the 17th to the 19th century, besides also going into the full detail of the Trial itself. I hope to come in the subsequent stages of this chapter, to concluding aspects of the Trial itself and ask whether there is any insuperable difficulty – the records themselves of the Trial are very substantial – in treating the Impeachment as a legal case about which one can form a legal view – once one has chased the literati off the stage of the Trial. This did not seem difficult for Kabir Khan.

Literary critics and the Trial

Musselwhite’s article is well known, openly accessible online. He begins by saying he refuses to be drawn into debate on the correctness of the verdict or the validity of the evidence, or even, in any general way, on the merits of the protagonists. However, he does claim that the rules of evidence in the Trial were strict, while much of the case against Hastings was circumstantial and characterological. Technically outflanked, the Prosecution:

threw legal and logical decorum to the winds and argument turned to rhetoric and rhetoric seemed more like bluster. Burke, goaded to frenzy by the massive propaganda campaign of Hastings’ supporters, his language lost all constraint and seemed at times to have come direct from Bedlam.

(Musselwhite, 1982: 4)

In contrast to Burke’s invective the language of “Hastings is restrained, informed, almost disdainful – it was this tone that infuriated Burke”. His careful attention to Islamic systems of land tenure – zeminder, pollah, sunnus and inheritance drains the wind out of Burke and Sheridan.

Musselwhite concludes that Burke’s picture of India was mythical, built with a view to public opinion and contributing to Thomas Macaulay’s more elaborate 19th century construction. The picture of India before the British intrusion is dismissed as the loveliness of myth. Burke is the first Orientalist in the Edward Said sense. So the Manager’s defense of Chait Singh, i.e. Burke’s defense of him (in article One of the Indictment, to which I will return), makes him “the hero of romantic pastorals with gothic overtones”. Hastings, argues Musselwhite, will have nothing to do with such posterings which “are romantic, theatrical and literary”. Hastings is technical, pragmatic, analytical and philological, having the Islamic laws translated so India can speak for itself” (Musselwhite, 1982: 11–12).

But, of course, Musselwhite does not want to argue over the correctness of the verdict or the merits of the protagonists. So let us leave him and move to Sara Suleri. Her book has a chapter “Reading the Trial of Warren Hastings” (Suleri, 1992: 49–74). She claims Burke’s larger goal was to inform England of the representational difficulty of colonial India and England’s response to his rhetoric was a declaration of awareness that morality was moribund where colonialism was concerned. Burke’s narratives of Hastings’ violations, in Suleri’s view, were designed to obliterate a belief in the graspability of India’s narrative. Suleri appears to object to the very idea of a trial. Hastings’ transgressions conform to the extortion of the East India Company. Suleri continues to argue that to read the proceedings of the Trial is thus to

confront less a trial than a documentation of the anxieties of oppression, both where the prisoner and the prosecutors are equally implicated in the inascrib-ability of colonial guilt. For 18th century England, however, the theatricality of the event overshadowed the historical and political questions that it raised, causing the popular imagination to believe that it observed a spectacle with a definite end.

(Suleri, 1992: 53)

Suleri makes the vital point

that the legal failure to impeach Hastings is illustrative of an essential alegality in colonial discourse in that neither the pre-existing law of Britain nor those of the subcontinent could supply a precedence against which to measure the illegality of both Hastings’ and the Company’s actions.

(Suleri, 1992: 55)

She wants to say that colonialism should be judged as a system rather than a set of misdeeds. She challenges Burke’s employment of the metaphor of rape to describe the treatment of India. Instead one should be aware of the rather homoerotic struggle between Burke and Hastings, so that “rape is a deflection from a contemplation of male embattlement” (Suleri, 1992: 61), where the audience knows that as Burke represents India as the hapless virgin, “a more accurate representation of colonialism would examine the shared responsibility that obtains between Hastings and Burke” (Suleri, 1992: 62). Nonetheless, she does insist that Burke was wrongly aestheticized by Macaulay to leave out his more horrific realizations of what the colonization of the subcontinent would entail (Suleri, 1992: 63). Burke was not an orientalist, but someone who insisted on the prior reality of a place that resisted translation into western images. She credits him in the end with articulating a damning catalogue of the consequences of the failure of colonial law.

Yet ultimately Suleri says that a trial cannot deal with a systematic ill in which she equates Burke and Hastings. At no point does she address any of the charges made against Hastings or deal with any concrete incident involving Hastings’ conduct. The trial itself remains unexamined in Suleri’s chapter “Reading the Trial of Warren Hastings”.

So literature, whether Musselwhite or Suleri, seems to tell us we cannot read a case, that a legal issue cannot be defined, that the protagonists are entrapped in other forces, playing to other galleries. Therefore, a close reading of the case is either impossible or unnecessary. The Law as such is disdained. It has no integrity of its own, no authority or compelling power.

Literary criticism, historians and the Impeachment Trial

William Dalrymple may come to Dirks’ book as a historian or as a literary critic given his own record, but here it is as a historian (Dalrymple, 2007). A lengthy review article in the New York Review of Books by a figure of Dalrymple’s stature of a book by a Columbia University historian such as Dirks can reasonably be taken as indicative of how open contemporary Anglo-American intellectual culture is to revisiting the Impeachment Trial of Hastings. His review of Dirks is complex. Dalrymple describes the ruin of India and especially Bengal, through the extortionist policies of the East India Company. But the impeachment of Hastings meant targeting the wrong man. Burke had never visited India, whereas Hastings was fluent in Hindustani, collected Indian religious manuscripts, and according to Dalrymple, patronized a new Asiatic Society of Benghal, founded in 1784 by the Sanskrit scholar, Sir William Jones. This Society was a case of unique cross-cultural appreciation.

In contrast, in Dalrymple’s view, Dirks ignores the interplay of culture (such as also shown in his own White Mughals) in favour of a reductionist picture of binary oppositions. Dirks’ argument is old fashioned, in the style of Edward Said, i.e. late 1970s etc. and concentrates on the rhetoric and theatre of Hastings’ impeachment, second hand, as discussed by others, most notably by Peter Marshall (Marshall, 1965). Dirks’ passionate Anglophobia and the parallels he makes with the present war in Iraq are all that is new about his book. He makes no use of Persian, Urdu or Bengali sources, but relies on Burke himself, who was notably ill informed about India and who, like Dirks – and unlike Hastings – had none of the relevant North Indian languages.

Furthermore, Dirks does not place the British incursion in the context of previous events such as the Moghul conquests, US expansion westward, and the fact of life of the Chinese Empire in the 18th century. These events are scandalous from a contemporary perspective but it is questionable whether indignation at Empire would have meant anything at the time. Dirks’ writing style is a little preachy and stodgily academic. This language is a vehicle for him to conclude that the British Raj presided over the destruction of Indian political institutions and cultural self-confidence, with economic figures speaking loud for the consequences. In 1600 when the East India Company was founded, Britain generated 1.8% of the world GDP and India 22.5%. By 1870 Britain generated 9.1% and India was a global symbol of famine. Yet now, concludes Dalrymple, the roles are once again being reversed.

Dalrymple continues in a rejoinder to Dirks’ attempt to respond to him, that Dirks was wrong to roundly criticize Peter Marshall’s painstaking work on Hastings. Dirks falls down by concentrating on the theoretical post-colonial studies of his academic friends, failing to appreciate the degree to which Burke’s assault on Warren Hastings was based upon misinformation fed to him by Hastings’ rapacious enemy, Philip Thomas, himself out for personal revenge. After all, Burke had never visited India and like Dirks, relied mostly on secondary sources. Dalrymple concludes that Dirks’ work is Manichaean, simplistic and replete with major factual errors.

Once again, as with Suleri and Musselwhite, Dalrymple seems to avoid the Impeachment Trial itself, ostensibly the main topic of Dirks’ book. Dirks’ book is partially about the Trial, but it is in fact primarily, in turn, a historiography of British treatment of the Trial and what he takes to be the sanitization of 18th century scandal in the course of the 19th century. Dirks does not appear to me to concentrate upon Hastings at all, making his primary targets to be subsequent historians of the British Empire, itself a passageway to understanding contemporary British self-images. From this perspective Dalrymple’s review is, as they say, “very interesting”.

So, the impeachment of Warren Hastings is also very largely absent from Dirks’ work. Nor does he make any judgment about the Empire and the East India Company other than to say that at least the Trial itself and the campaigning of Burke, Charles James Fox, Richard Sheridan and Charles Grey showed there was serious concern in the 18th century at scandalous behaviour. The post-colonial theory in Dirks’ work is that, somewhat like Suleri, he appears to engage in a type of fatalistic cosmic historicism which sees the outrage of Burke and company as part of a grand historical process whereby the British Establishment recognized the need to sanitize the appearance of its operations, which Lord Cornwallis began to do afterwards by hugely raising the salaries of high East Indian Company officials. The sanitizing process meant Burke was instrumental in repressing scandal and even contributed to the ever so clever British tactic – and this is the main point of Dirks’ book – whereby scandal is transferred from the British to the Indians themselves, with the 19th century campaigns against Sati and the thugs. The Civilizing Mission required increasing focus on the scandalous Indians. British historians obliged. That is Dirks’ argument. He says they continue to do so.

He takes the example of Peter Marshall, as Dalrymple has complained. It is what Marshall says of the Trial itself. There is just one forty-four-page chapter in Dirks’ three hundred and eighty nine-page book devoted to the Trial and, needless to say, the chapter is called “Spectacle”. The chapter is about the charges brought against Hastings but it is scarcely based on a reading of the Trial proceedings. Still it does show full awareness of the ambiguity of the Francis–Burke relationship, Dalrymple notwithstanding. Dirks’ chapter favours the view that a major issue such as the first charge on the removal of Chait Singh, the ruler of Benares, was essentially not justiciable because the true nature of the legal relationship between Chait Singh and the East Indian Company – where ultimate sovereignty rested between the Mughal, the company and Chait Singh – was totally undefined (Dirks, 2006: 203).

Zaanunders (maybe landlords for Hastings) were, for Dirks, sometimes revenue officers and sometimes local sovereigns. Burke and the Managers accused Hastings of extortion by demanding revenues well beyond the originally agreed Treaty. Dirks agrees with Hastings that this cannot be proved legally. Hastings’ practice of collecting revenue and expecting financial support from a subordinate was only a matter of doing what the Company had done before. While not excusing Hastings’ excesses, Dirks says