The Works of the Right Honourable Edmund Burke, Vol. 09 (of 12)

That, after the said judges had delivered their opinion, "that the place and office of Governor-General of this Presidency had not yet been vacated by Warren Hastings, and that the actual assumption of the government by the member of the Council next in succession to Mr. Hastings, in consequence of any deduction which could be made from the papers communicated to them, would be absolutely illegal," and after the said General Clavering and Philip Francis, Esquire, had signified to the said Warren Hastings, by a letter dated the 21st of June, "their intention to acquiesce in the said opinion of the judges," and when the differences in the Supreme Council were by these means composed, and the calamities consequent thereon were avoided, the said Warren Hastings and Richard Barwell, Esquires, did once more endanger the public peace and security by other illegal, unwarrantable, and unprovoked acts of violence: having omitted to summon either the said General Clavering or the said Philip Francis, Esquire, to Council; and having, in a Council held thus privately and clandestinely and contrary to law, on the 22d day of June, come to the following resolutions, viz.

"Resolved, That, by the said acts, orders, and declarations of Lieutenant-General John Clavering, recited in the foregoing papers," (meaning the proceedings of General Clavering in his separate Council on the 20th of June,) "he has actually usurped and assumed and taken possession of the place and office of Governor-General of the Presidency of Fort William in Bengal, granted by the act of the 13th of his present Majesty to Warren Hastings, Esquire.

"Resolved, That Lieutenant-General John Clavering has thereby relinquished, resigned, surrendered, and vacated the office of Senior Counsellor of Fort William in Bengal.

"Resolved, That Lieutenant-General John Clavering has thereby relinquished, resigned, surrendered, and vacated his place of Commander-in-Chief of the Company's forces in India.

"Resolved, That Richard Barwell, Esquire, by virtue of the said act of Parliament, and by the death of the Honorable George Monson, Esquire, is promoted to the office of Senior Counsellor of the Presidency of Fort William in Bengal, in consequence of the said relinquishment, resignation, surrender, and vacation of General Clavering.

"Resolved, That the office of Commander-in-Chief of the Company's forces in India, by the relinquishment, resignation, surrender, and vacation of General Clavering, and by the death of the Honorable George Monson, Esquire, does no longer exist.

"Resolved, That, for the preservation of the legality of our proceedings, Lieutenant-General John Clavering be not in future summoned or admitted as a member of the Governor-General and Council."

And the said Warren Hastings and Richard Barwell, Esquire, did again sit in Council on the next day, being the 23d of June, without summoning either General Clavering or Philip Francis, Esquire, and did come to several other resolutions, and make several orders, contrary to law or justice, and inconsistent with the tranquillity and the security of the settlement: that is to say, they ordered their secretary "to notify to General Clavering that the board had declared his offices of Senior Counsellor and Commander-in-Chief to be vacant, and to furnish him with a copy of these proceedings, containing the grounds of the board for the aforesaid declaration."

And they ordered extracts of the said proceedings "to be issued in general orders, with letters to all the provincial councils and military stations, directing them to publish the same in general orders"; and they resolved, "that all military returns be made to the Governor-General and Council in their military department, until a commander-in-chief shall be appointed by the Company."

That on the day following, that is to say, on the 24th of June, the said Warren Hastings did again omit to summon General Clavering to Council, and did again, together with Richard Barwell, Esquire, who concurred therein, adhere to and confirm the said illegal resolutions come to on the two former days, declaring "that they could not be retracted but by the present authority of the law or by future orders from home," and aggravating the guilt of the said unjustifiable acts by declaring, as the said Warren Hastings did, "that they were not the precipitate effects of an instant and passionate impulse, but the fruits of long and most temperate deliberations, of inevitable necessity, of the strictest sense of public duty, and of a conviction equal in its impression on his mind to absolute certainty."

That the said Warren Hastings was the less excusable in this obstinate adherence to his former unjust proceedings, as the said declarations were made in answer to a motion made by Philip Francis, Esquire, for the reversal of the said proceedings, and to a minute introducing the said motion, in which Mr. Francis set forth in a clear and forcible manner, and in terms with which the Court of Directors have since declared their entire concurrence, both the extreme danger and the illegality and invalidity of the said proceedings of Warren Hastings and Richard Barwell, Esquire, concluding the said minute by the following conciliatory declaration: "And that this salutary motion may not be impeded by any idea or suspicion that General Clavering may do any act inconsistent with the acquiescence which both he and I have avowed in the decision of the judges, I will undertake to answer for him in this respect, or that, if he should depart from the true spirit and meaning of that acquiescence, I will not be a party with him in such proceedings."

That the said Warren Hastings could not plead ignorance of the law in excuse for the said illegal acts, as it appears from the proceedings of the four preceding days that he was well acquainted with the tenure by which the members of the Council held their offices under the act of the 13th of his present Majesty, and had stated the same as a ground for retaining his own office, contrary to an express declaration of the Court of Directors and an instrument under the sign-manual of his Majesty; and the judges of the Supreme Court, in their reasons for their decision in his favor, had stated the provisions in the said act,3 so far as they related to the matter in dispute, from which it appeared that there were but four grounds on which the office of any member of the Council could be vacated,—namely, death, removal, resignation, or promotion. And as the act confined the power of removal to "his Majesty, his heirs and successors, upon representation made by the Court of Directors of the said United Company for the time being," and conferred no such power on the Governor-General, or a majority of the Council, to remove, on any ground or for any cause whatever, one of their colleagues,—so, granting the claim of General Clavering to the chair, and his acts done in furtherance thereof, to have been illegal, and criminal in whatever degree, yet it did not furnish to the rest of the Council any ground to remove him from his office of Counsellor under the provisions of the said act; and there could therefore remain only his resignation or promotion, as a possible means of vacating his said office. But with regard to the promotion of General Clavering to the office of Governor-General, although he claimed it himself, yet, as Mr. Hastings did not admit it, and as in fact it was even receded from by General Clavering, it could not be considered, at least by Mr. Hastings, as a valid ground for vacating his office of Senior Counsellor, since the act requires for that purpose, not a rejected claim, but an actual and effectual promotion; and General Clavering's office of Counsellor could no more be vacated by such a naked claim, unsupported and disallowed, than the seat of a member of the House of Commons could be vacated, and a new writ issued to supply the vacancy, by his claim to the office of Steward of the Chiltern Hundreds, when his Majesty has refused to appoint him to the said office. And with regard to resignation, although the said Warren Hastings, as a color to his illegal resolutions, had affectedly introduced the word "resigned" amongst those of "relinquished, surrendered, and vacated," yet he well knew that General Clavering had made no offer nor declaration of his resignation of his offices of Senior Counsellor and Commander-in-Chief, and that he did not claim the office of Governor-General on the ground of any such resignation made by himself, but on the ground of a resignation made by the said Warren Hastings, which resignation the said Warren Hastings did not admit; and the use of the term resigned on that occasion was therefore a manifest and wilful misconstruction and misapplication of the words of the act of his present Majesty. And such misinterpretation and false extension of the term of resignation was the more indecent in the said Warren Hastings, as he was at the same moment disavowing and refusing to give effect to his own clear and express resignation, according to the true intent and meaning of the word as used in the said act, made by his agent, duly authorized and instructed by himself so to do, to an authority competent to receive and accept the same.

That, although the said Warren Hastings did afterwards recede from the said illegal measures, in compliance with the opinion and advice of the judges again interposed, and did thereby avoid the guilt of such further acts and the blame of such further evils as must have been consequent on a persistence therein, yet he was nevertheless still guilty of the illegal acts above described; and the same are great crimes and misdemeanors.

That, although the judges did decide that the office of Governor-General, held by the said Warren Hastings, was not ipso facto and instanter vacated by the arrival of the said dispatches and documents transmitted by the Court of Directors, and did consider the said consequences of the resignation as awaiting some future act or event for its complete and effectual operation, yet the said judges did not declare any opinion on the ultimate invalidity of the said acts of Lauchlan Macleane, Esquire, as not being binding on his principal, Warren Hastings, Esquire; nor did they declare any opinion that the obligation of the said resignation was not from the beginning conclusive and effectual, although its operation was, from the necessity of the case, on account of the distance between England and India, to take place only in future,—or that the said resignation made by Lauchlan Macleane, Esquire, was only an offer or proposal of a resignation to be made at some future and indefinite period, or a mere intimation of the desire of Warren Hastings, Esquire, to resign at some future and indefinite period, and that the said resignation, notwithstanding the acceptance thereof by the Court of Directors, and the regular appointment and confirmation of a successor, was still to remain optional in the said Warren Hastings, to be ratified or departed from at his future choice or pleasure; nor did the said judges pronounce, nor do any of their reasonings which accompanied their decision tend to establish it as their opinion, that even the time for ratifying and completing the said transaction was to be at the sole discretion of the said Warren Hastings; but they only delivered their opinion as aforesaid, that his said office "has not yet been vacated, and [therefore] that the actual assumption of the government by the member of the Council next in succession was [in the actual circumstances, and rebus sic stantibus] illegal."

That the said Warren Hastings does nowhere himself contend that the said resignation was not absolute, but optional, according to the true meaning and understanding of the parties in England, and so far as the acts of Lauchlan Macleane, Esquire, and the Court of Directors, were binding on him; but, on the contrary, he grounds his refusal to complete the same, not on any interpretation of the words in which the said resignation, and the other instruments aforesaid, were conceived, but rather on a disavowal (not direct, indeed, but implied) of his said agent, and of the powers under which the said agent had claimed to act in his behalf. Neither did the said Warren Hastings ground his said refusal on any objection to the particular day or period or circumstances in which the requisition of General Clavering was made, nor accompany the said refusal with any qualification in that respect, or with any intimation that he would at any future or more convenient season comply with the same,—although such an intimation might probably have induced General Clavering to waive an instant and immediate claim to the chair, and might therefore have prevented the distractions which happened, and the greater evils which impended, in consequence of the said claim of General Clavering, and the said refusal of Warren Hastings, Esquire; but the said Warren Hastings did, on the contrary, express his said refusal in such general and unqualified terms as intimated an intention to resist absolutely and altogether, both then and at any future time, the said requisition of General Clavering. And the subsequent proceedings of the said Warren Hastings do all concur in proving that such was his intention; for he did afterwards, in conformity to the advice of the judges, move a resolution in Council, "that all parties be placed in the same situation in which they stood before the receipt of the last advices from England, reserving and submitting to a decision in England the respective claims that each party may conceive they have a right to make, but not acting upon those claims till such decision shall arrive in Bengal": thereby clearly and explicitly declaring that it was not his intention to surrender the government until such decision should arrive in Bengal, which could not be expected in less time than a year and a half after the date of the said resolution; and thereby clearly and explicitly declaring that he did not consider his resignation as binding for the present. And the said intention was manifested, if possible, still more directly and expressly in a letter written by the said Warren Hastings to the Court of Directors, dated the 15th of August, 1777, being almost two months after the receipt of the said dispatches, in which the said Warren Hastings declares that "he did not hold himself bound by the notification made by Mr. Macleane, nor by any of the acts consequent of it."

That, such appearing to have been the intention of the said Warren Hastings, General Clavering was justified in immediately assuming the government, without waiting for any future act of the said Warren Hastings for the actual surrender of the said government, none such being likely to happen; and Philip Francis, Esquire, was justified in supporting General Clavering in the same on the soundest principles of justice, and on a maxim received in courts of equity, namely, that no one shall avail himself of his own wrong,—and that, if any one refuse or neglect to perform that which he is bound to do, the rights of others shall not be prejudiced thereby, but such acts shall be deemed and reputed to have been actually performed, and all the consequences shall be enforced which would have followed from such actual performance. And therefore the resolutions moved and voted in Council by the said Warren Hastings, declaring the offices of General Clavering to be vacant, were not only illegal, inasmuch as the said Warren Hastings had no authority to warrant such a declaration, even on the supposition of the acts of General Clavering being contrary to law, but the said resolutions were further highly culpable and criminal, inasmuch as the said acts done by General Clavering, which were made the pretence of that proceeding, were strictly regular and legal.

That the refusal of the said Warren Hastings to ratify the said resignation, and his disavowal of the said Lauchlan Macleane, his agent, is not justified by anything contained in his said letter to the Court of Directors, dated on the 15th of August, 1777,—the said Warren Hastings nowhere directly and positively asserting that the said Lauchlan Macleane was not his agent, and had not both full and general powers, and even particular instructions for this very act, although the said Warren Hastings uses many indirect and circuitous, but insufficient and inapplicable, insinuations to that effect. And the said letter does, on the contrary, contain a clear and express avowal that the said Lauchlan Macleane was his confidential agent, and that in that capacity he acted throughout, and particularly in this special matter, with zeal and fidelity. And the said letter does further admit in effect the instructions produced by the said Lauchlan Macleane, Esquire, confirmed by Mr. Vansittart and Mr. Stewart, and relied on and confided in by the Court of Directors, by which the said Lauchlan Macleane appeared to be specially empowered to declare the said resignation, the words of the said instruction being as follows: "That he [Mr. Hastings] will not continue in the government of Bengal, unless certain conditions therein specified can be obtained"; and the words of the said letter being as follows: "What I myself know with certainty, or can recollect at this distance of time, concerning the powers and instructions which were given to Messieurs Macleane and Graham, when they undertook to be my agents in England, I will circumstantially relate. I am in possession of two papers which were presented to those gentlemen at the time of their departure from Bengal, one of which comprises four short propositions which I required as the conditions of my being confirmed in this government." And although the said Warren Hastings does here artfully somewhat change the words of his written instructions (and which having in his possession he might as easily have given verbatim) to other words which may appear less explicit, yet they are in fact capable of only the same meaning: for, as, at the time of giving the said instructions to his agents, he was in full possession of his office, he could want no confirmation therein except his own; and, in such circumstances, "to require certain things, as the conditions of his being confirmed in his government," is tantamount to a declaration "that he will not continue in his government, unless those conditions can be obtained." And the said attempt at prevarication can serve, its author the less, as either both sentences have one and the same meaning, or, if their meaning be different, the original instructions in his own handwriting, or, in other words, the thing itself, must be preferred as evidence of its contents to a loose statement of its purport, founded, perhaps, on a loose recollection of it at a great distance of time.

That the said refusal of Warren Hastings, Esquire, was a breach of faith with the Court of Directors and his Majesty's ministers in England; as the said resignation was not merely a voluntary offer without any consideration, and therefore subject to be recalled or retracted at the pleasure of the said Warren Hastings, but ought rather to be considered as having been the result of a negotiation carried on between Mr. Macleane for the benefit of Warren Hastings, Esquire, on the one hand, and by the Court of Directors for the interests of the Company on the other: which view of the transaction will appear the more probable, when it is considered that at the time of the said resignation a strict inquiry had been carrying on by the Court of Directors into the conduct of the said Warren Hastings, and the solicitor and counsel to the Company, and other eminent counsel, had given it as their opinions, on cases stated to them, that there were grounds for suing the said Warren Hastings in the courts of law and equity, and that the Company would be entitled to recover in the said suits against Warren Hastings, Esquire, several very large sums of money taken by him in his office of Governor-General, contrary to law, and in breach of his covenants, and of his duty to the Company and the public; and the Court of Directors had also come to various severe resolutions of censure against the said Warren Hastings, and amongst others to a resolution to recall the said Warren Hastings, and remove him from his office of Governor-General, to answer for sundry great crimes and delinquencies by him committed in his said office. And on these accounts it appears probable that the said resignation was tendered and accepted as a consideration for some beneficial concessions made in consequence thereof to the said Warren Hastings in his said dangerous and desperate condition.

And the said refusal was also an act of great disrespect to the Court of Directors and to his Majesty, and, by rendering abortive their said measures, solemnly and deliberately taken, and ratified and confirmed by his Majesty, tended to bring the authority of the Court of Directors and of his Majesty into contempt.

And the said refusal was an injury to General Clavering.

And was also, or might have been, a great injury to Edward Wheler, Esquire.

And was an act of signal treachery to Lauchlan Macleane, Esquire, as also to Mr. Vansittart and Mr. Stewart, whose honors and veracity were thereby brought into question, doubt, and suspicion.

And the said refusal was prejudicial to the affairs of the servants of the Company in India, by shaking the confidence to be placed in their agents by those persons with whom it might be for their interests to negotiate on any matter of importance, and by thus subjecting the communication of persons abroad with those at home to difficulties not known before.

X.—SURGEON-GENERAL'S CONTRACT

That the said Warren Hastings, in the year 1777, did grant to the Surgeon-General a contract for three years, for defraying every kind of hospital and medicinal expense,—not only in breach of the general orders of the Court of Directors with respect to the duration of contracts, but in direct opposition to a particular order of the Court of Directors, of the 30th of March, 1774, when they directed "that the Surgeon should not be permitted to enjoy any emolument arising from his being concerned in dieting the patients, and that the occupations of surgeon and contractor should be forthwith separated." That the said contract was in itself highly improper, and inconsistent with the good of the service; as it afforded the greatest temptation to abuse, and established a pecuniary interest in the Surgeon-General, contrary to the duties of his station and profession.

XI.—CONTRACTS FOR POOLBUNDY REPAIRS

That the Governor-General and Council at Fort William did, on the motion and recommendation of Warren Hastings, Esquire, enter into a contract with Archibald Frazer, Esquire, on the 16th of April, 1778, for the repairs of the pools and banks in the province of Burdwan, for two years, at the rate of 120,000 sicca rupees for the first year, and 80,000 rupees for the second year.

That on the 19th of December, 1778, the said Warren Hastings did further persuade the Supreme Council to prolong the term of the above contract with Archibald Frazer for the space of three years more on the same conditions, namely, the payment of 80,000 sicca rupees for each year: to which was added a permission to Mr. Frazer to make dobunds, or special repairs, whenever he should judge them necessary, at the charge of government.

That the said contracts, both in the manner of their acceptance by the Supreme Council, without having previously advertised for proposals, and in the extent of their duration, were made in direct violation of the special orders of the Court of Directors.

That, so far from any advantage having been obtained for the Company in the terms of these contracts, in consideration of the length of time for which they were to continue, the expense of government upon this article was increased by these engagements to a very great amount.

That it appears that this contract had been held for some years before by the Rajah of Burdwan at the rate of 25,000 rupees per annum.

That the superintendent of poolbundy repairs, after an accurate and diligent survey of the bunds and pools, and the Provincial Council of Burdwan, upon the best information they could procure, had delivered it as their opinion to the Governor-General and Council, before the said agreement was entered into, that, after the heavy expense stated in Mr. Kinlock's estimate, viz., 119,405 sicca rupees, if disbursed as they recommended, the charge in future seasons would be greatly reduced, and, after one thorough and effectual repair, they conceived a small annual expense would be sufficient to keep the bunds up and prevent their going to decay.