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Published online by Cambridge University Press: 02 June 2020
Edmund Burke's impeachment of Warren Hastings for his conduct as governor-general in India represented the era's most serious internal challenge to British imperialism. But the impeachment's legal and institutional implications have been neglected. The central points of contention were the nature of impeachment in Britain and the nature of law in India. Burke insisted that impeachment must override the “low” and “mean” standards of the common law, yet he celebrated India for its dense judicial institutions. Hastings took the opposite position, demanding that the impeachment adhere strictly to the common law, yet defending his conduct in India by appeal to its political expediency, rather than its lawfulness. Each found himself in a “rhetorical contradiction,” alternately arguing in praise of, and in critique of, legal reasoning and procedures. While Hastings attempted to surmount the contradiction through the discourse of realism, Burke turned to the discourse of natural law—a language of lawfulness without legalism.
I would like to thank Arash Abizadeh, Samuel Bagg, Michael Da Silva, Jacob T. Levy, Catherine Lu, Victor Muñiz-Fraticelli, Will Roberts, Alexandre Gajevic Sayegh, Christa Scholtz, Yves Winter, and the Research Group on Constitutional Studies at McGill University; participants in the 2019 Midwest Political Science Association and Western Political Science Association conferences; three anonymous reviewers; and the Review of Politics editorial staff.
1 Burke, Edmund, “Speech on Opening of Impeachment, 16 February 1788,” in The Writings and Speeches of Edmund Burke, ed. Langford, Paul, vol. 6, ed. Marshall, P. J. (Oxford: Clarendon, 1991), 365Google Scholar.
2 For disagreement with this claim, see Dirks, Nicholas B., The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge, MA: Harvard University Press, 2006), 132CrossRefGoogle Scholar. Nevertheless, Jennifer Pitts has argued convincingly that Burke “was arguably the first political thinker to undertake a comprehensive critique of British imperial practice in the name of justice for those who suffered from its moral and political exclusions” (Pitts, , A Turn to Empire: The Rise of Imperial Liberalism in Britain and France [Princeton, NJ: Princeton University Press, 2005], 60, 70CrossRefGoogle Scholar).
3 Whelan, Frederick G., Edmund Burke and India (Pittsburgh: University of Pittsburgh Press, 1996), 205Google Scholar.
4 Bromwich, David, The Intellectual Life of Edmund Burke (Cambridge, MA: Harvard University Press, 2014), 10CrossRefGoogle Scholar; Mehta, Uday Singh, Liberalism and Empire (Chicago: University of Chicago Press, 1999), 170CrossRefGoogle Scholar.
5 This distinction is informed by Aristotle's Rhetoric (1.3), with which Burke was familiar. Deliberative reasoning is oriented toward future events that directly concern the deliberators, and so deals with probable outcomes of decisions. Judicial reasoning is oriented toward the past actions of the accused; while it also involves probabilistic arguments (e.g., when facts are disputed), it deals with actions that are in principle knowable. On the deliberative conception, an impeachment would largely ask, “What would be the likely consequences of convicting Hastings for the empire and its subjects?” On the judicial conception, an impeachment would largely ask, “Did Hastings commit high crimes and misdemeanors?”
6 Burke, “Speech on Opening of Impeachment, 15 February 1788,” in Writings and Speeches, 6:272.
7 An important exception is Maxwell, Lida, Public Trials (Oxford: Oxford University Press, 2014), 37–79CrossRefGoogle Scholar; see sec. 4 below.
8 Whelan, Burke and India, 188.
9 O'Gorman, Frank, Edmund Burke (London: Routledge, 1973), 121Google Scholar. See also Ahmed, Siraj, “The Theater of the Civilized Self: Edmund Burke and the East India Trials,” Representations 78 (2002): 41CrossRefGoogle Scholar; Herzog, Don, “Puzzling through Burke,” Political Theory 19, no. 3 (1991): 339–40CrossRefGoogle Scholar.
10 To be sure, Burke's insistence that impeachment ought to be both deliberative and targeted at injustice may appear to be in tension with one aspect of the classical judicial-deliberative distinction: that the criterion of judicial rhetoric is justice, while the criterion of deliberative rhetoric is expedience or utility. But the strand of “modern” or neo-Stoic natural law that most influenced Burke had taken on board Cicero's equation of the honestum and the utile. These concepts are similarly elided in Burke's case against Hastings, which treats his actions as both unjust and dangerous to British liberty. See Armitage, David, “Edmund Burke and Reason of State,” Journal of the History of Ideas 61, no. 4 (2000): 620CrossRefGoogle Scholar; Insole, Christopher J., “Burke and the Natural Law,” in The Cambridge Companion to Edmund Burke, ed. Dwan, David and Insole, Christopher (Cambridge: Cambridge University Press, 2012), 121Google Scholar; Tuck, Richard, “The ‘Modern’ Theory of Natural Law,” in The Languages of Political Theory in Early-Modern Europe, ed. Pagden, Anthony (Cambridge: Cambridge University Press, 1987), 105Google Scholar.
11 Burke, “Opening of Impeachment, 16 February 1788,” 364.
12 Stern, Philip J., The Company-State (New York: Oxford University Press, 2011)CrossRefGoogle Scholar.
13 Marshall, P. J., The Impeachment of Warren Hastings (Oxford: Oxford University Press, 1965), 17Google Scholar.
14 Burke, “Opening of Impeachment, 15 February 1788,” 275.
15 Impeachment was not synonymous with removal from office; if convicted, Hastings would have been subject to sentencing by the Lords.
16 Bourke, Richard, Empire and Revolution: The Political Life of Edmund Burke (Princeton, NJ: Princeton University Press, 2015), 635Google Scholar.
17 Edmund Burke, “Articles of Impeachment: Article Fourth,” in Writings and Speeches, 6:164.
18 Burke, “Article Eighth,” 203.
19 Marshall concludes that Hastings was likely guilty of the oppression and contracts charges, and possibly of the presents charge, but was unfairly singled out for practices that were widespread in British India (Marshall, Impeachment, 189–90).
20 Burke to Philip Francis, December 23, 1785, in The Correspondence of Edmund Burke, vol. 5, ed. Furber, H. (Cambridge: Cambridge University Press, 1965), 243Google Scholar.
21 Mill, James, The History of British India (New York: Chelsea House, 1968), 5:202Google Scholar.
22 Burke to Henry Dundas, March 6, 1796, in The Correspondence of Edmund Burke, vol. 8, ed. McDowell, R. B. (Chicago: University of Chicago Press, 1969), 401Google Scholar.
23 Burke, “Opening of Impeachment, 16 February 1788,” 345.
24 Burke, “Opening of Impeachment, 15 February 1788,” 276.
25 Burke, “Minutes of Proceedings on the Trial of Warren Hastings,” May 27, 1789, additional manuscripts, British Museum, 24230, f. 235, cited in Marshall, Impeachment, 65.
26 Hastings, Warren, The Minutes of What Was Offered by Warren Hastings, Esq., at the Bar of the House of Commons (London: J. Debrett, 1786), 5Google Scholar.
27 The Parliamentary History of England, ed. Cobbett, W. (London, 1806–20), 27:62Google Scholar.
28 Erskine to W. D. Shipley, n.d., additional manuscripts, British Museum, 29196, ff. 6–7, cited in Marshall, Impeachment, 66.
29 James Sayers, “For the Trial of Warren Ha[stings],” March 5, 1788, British Museum Satires 7276.
30 Burges, James Bland, Letters and Correspondence, ed. Hutton, James (London: John Murray, 1885), 107Google Scholar.
31 Marshall, Impeachment, 70.
32 Burke, , Reflections on the Revolution in France, in The Works of the Right Honourable Edmund Burke (London: John C. Nimmo, 1887), 3:338Google Scholar.
33 Mill, British India, 80.
34 Cited in Mill, British India, 85.
35 Paraphrased in Mill, British India, 131.
36 Ibid., 135.
37 Ibid., 136.
38 History of the Trial of Warren Hastings, Esq., part 3 (London: J. Debrett, 1796), 54–56Google Scholar.
39 Paraphrased in Mill, British India, 109.
40 Ibid., 87, 91.
41 Ibid., 103.
42 Ibid., 104, 109, 112.
43 Ibid., 113–14.
44 Burke, , “Report on the Lords Journals, 30 April 1794,” in Writings and Speeches, ed. Langford, Paul, vol. 7, ed. Marshall, P. J. (Oxford: Clarendon, 1991), 118Google Scholar.
45 Aristotle, , Rhetoric, in Aristotle, vol. 22, trans. Freese, J. H. (Cambridge, MA: Harvard University Press, 1926), 1.1.10Google Scholar.
46 Goodman, Rob, “The Deliberative Sublime: Edmund Burke on Disruptive Speech and Imaginative Judgment,” American Political Science Review 112, no. 2 (2018): 268CrossRefGoogle Scholar.
47 Lock, F. P., Edmund Burke, vol. 2, 1784–1797 (Oxford: Oxford University Press, 2006), 234Google Scholar.
48 Burke, “Speech on American Taxation,” in Works, 2:73.
49 Burke, “Speech on Mr. Fox's East India Bill,” in Works, 2:434.
50 Burke, “Speech on the Nabob of Arcot's Debts,” in Works, 3:16.
51 Burke, “Speech in Reply, 28 May 1794,” in Writings and Speeches, 7:245.
52 Ibid., 244.
53 Lock, Edmund Burke, 2:230.
54 Burke, “Report on the Lords Journals,” 121; Burke, “Speech in Reply, 28 May 1794,” 245. See Bullard, Paddy, Edmund Burke and the Art of Rhetoric (Cambridge: Cambridge University Press, 2011), 133CrossRefGoogle Scholar.
55 Burke, “Report on the Lords Journals,” 153.
56 Burke, “Opening of Impeachment, 15 February 1788,” 305.
57 See Burke's argument on “the contagion of our passions”: Burke, Philosophical Enquiry, in Works, 1:261.
58 On systemic injustice and disruptive politics, see Hayward, Clarissa Rile, “Responsibility and Ignorance: On Dismantling Structural Injustice,” Journal of Politics 79, no. 2 (2017): 396–408CrossRefGoogle Scholar.
59 Krause, Sharon, “Despotism in the Spirit of the Laws,” in Montesquieu's Science of Politics, ed. Carrithers, D. W. et al. (Oxford: Rowman and Littlefield, 2001)Google Scholar; Sonenscher, Michael, Before the Deluge: Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton, NJ: Princeton University Press, 2009), 121–49CrossRefGoogle Scholar; Haskins, Alex, “Montesquieu's Paradoxical Spirit of Moderation: On the Making of Asian Despotism in De l'esprit des lois,” Political Theory 46, no. 6 (2018): 915–37CrossRefGoogle Scholar.
60 Whelan, Burke and India, 259. See also Pitts, , “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117, no. 1 (2012): 92–121CrossRefGoogle Scholar.
61 Hastings, Minutes, 70, 67.
62 Hastings to William Pitt, cited in Davies, C. C., “Warren Hastings and the Younger Pitt,” English Historical Review 70 (1955): 619Google Scholar.
63 History of the Trial of Warren Hastings, Esq., part 4, 103.
64 Burke, “Opening of Impeachment, 15 February 1788,” 305.
65 “Permanently” should be stressed. Burke acknowledged that appeals to necessity were sometimes legitimate, but he insisted that necessity “could not be raised into a regular principle of government” (Armitage, “Edmund Burke and Reason of State,” 625).
66 Edmund Burke, “Opening of Impeachment, 16 February 1788,” 355.
67 Ibid., 356. The Institutes, translated into English in 1783, were a seventeenth-century Mughal forgery, but neither Burke nor his British contemporaries seem to have been aware of the fact. See Manz, Beatrice Forbes, “Tamerlane's Career and Its Uses,” Journal of World History 13, no. 1 (2002): 13CrossRefGoogle Scholar.
68 Burke, “Opening of Impeachment, 16 February 1788,” 361.
69 Ibid., 354. Marshall notes that Burke's sources for this claim appear to be Cantemir, Demetrius, The History of the Growth and Decay of the Othman Empire (London, 1756)Google Scholar, and the Memoirs of Baron de Tott containing the State of the Turkish Empire (London, 1786)Google Scholar.
70 Burke, “Opening of Impeachment, 16 February 1788,” 363.
71 Ibid., 364.
72 Ibid.
73 Ibid., 365.
74 Mukherjee, Mithi, India in the Shadows of Empire (New Delhi: Oxford University Press, 2010), 20Google Scholar.
75 Whelan, Burke and India, 188–99.
76 Walpole, Horace, Selected Letters of Horace Walpole, ed. Lewis, W. S. (New Haven, CT: Yale University Press, 1973), 270Google Scholar, cited in Whelan, Burke and India, 193.
77 Maxwell, Public Trials, 51.
78 Burke, “Opening of Impeachment, 16 February 1788,” 351–52.
79 Ibid., 350.
80 Burke, “Opening of Impeachment, 15 February 1788,” 277.
81 Burke, “Speech on Conciliation with the Colonies,” in Works, 2:181.
82 Burke, Reflections on the Revolution in France, 312. See Hall, Lauren, “Rights and the Heart: Emotions and Rights Claims in the Political Theory of Edmund Burke,” Review of Politics 73, no. 4 (2011): 625CrossRefGoogle Scholar.
83 Lock, Edmund Burke, 2:155.
84 Burke, “Opening of Impeachment, 15 February 1788,” 275.
85 Burke, “Opening of Impeachment, 16 February 1788,” 346.
86 Burke, “Speech in Reply, 16 June 1794,” in Writings and Speeches, 7:693.
87 Ahmed, “The Theater of the Civilized Self,” 41.
88 Pitts, A Turn to Empire, 82.
89 Goodman, “The Deliberative Sublime,” 272.
90 Hall, “Rights and the Heart,” 624.
91 Bourke, Empire and Revolution, 850. The impeachment's long-term effects on imperial policy are still disputed. For an argument that the Hastings trial “delegitimiz[ed] the colonial state in India” well into the nineteenth century, see Mukherjeee, India in the Shadows of Empire, 43. For the contrary view, see Cone, Carl B., Burke and the Nature of Politics: The Age of the French Revolution (Lexington: University Press of Kentucky, 2014), 256Google Scholar.
92 Cone, Burke and the Nature of Politics, 250.
93 Mukherjeee, India in the Shadows of Empire, 39.
94 Burke, Reflections on the Revolution in France, 344.
