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The Works Of The Right Honourable Edmund Burke, Vol. IX. (of 12) written by Edmund Burke

E >> Edmund Burke >> The Works Of The Right Honourable Edmund Burke, Vol. IX. (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_.

That, whatever extraordinary and unusual damages the pools and bunds
might have sustained, either from the neglect of the Rajah's officers,
or from the violence of the then late rains, and the torrents thereby
occasioned, to justify the expense of the first year, yet, as they were
all considered and included in the estimate for that year, there could
be no pretence for allowing and continuing so large and burdensome a
payment as 80,000 rupees per annum for the four succeeding years.