Chapter II: Appendix: To the Eighth and Sixteenth Charges 319 (2)

That in a letter from the said Warren Hastings to the said Court of Directors, dated the 22d of May, 1782, but not dispatched, as it might and ought to have been, at that time, but detained and kept back by the said Warren Hastings till the 16th of December following, he has confessed the receipt of various other sums, amounting (with that which he accepted from the Nabob of Oude) to nearly two hundred thousand pounds, which sums he affirmed had been converted to the Company's property through his means, but without discovering from whom or on what account he received the same. That, instead of converting this money to the Company's property, as he affirmed he had done, it appears that he had lent the greater part of it to the Company upon bonds bearing interest, which bonds were demanded and received by him, and, for aught that yet appears, have never been given up or cancelled. That for another considerable part of the above-mentioned sum he has taken credit to himself, as for a deposit of his own property, and therefore demandable by him out of the Company's treasury at his discretion. That all sums so lent or deposited are not alienated from the person who lends or deposits the same; consequently, that the declaration made by the said Warren Hastings, that he had converted the whole of these sums to the Company's property, was not true. Nor would such a transfer, if it had really been made, have justified the said Warren Hastings in originally receiving the money, which, being in the first instance contrary to law, could not be rendered legal by any subsequent disposition or application thereof; much less would it have justified the said Warren Hastings in delaying to make a discovery of these transactions to the Court of Directors until he had heard of the inquiries then begun and proceeding in Parliament, in finally making a discovery, such as it is, in terms the most intricate, obscure, and contradictory. That, instead of that full and clear explanation of his conduct which the Court of Directors demanded, and which the said Warren Hastings was bound to give them, he has contented himself with telling the said Directors, that, "if this matter was to be exposed to the view of the public, his reasons for acting as he had done might furnish a variety of conjectures to which it would be of little use to reply; that he either chose to conceal the first receipts from public curiosity by receiving bonds for the amount, or possibly acted without any studied design which his memory could at that distance of time verify; and that he _could_ have concealed them from their eye and that of the public forever." That the discovery, as far as it goes, establishes the guilt of the said Warren Hastings in taking money against law, but does not warrant a conclusion that he has discovered _all_ that he may have taken; that, on the contrary, such discovery, not being made in proper time, and when made being imperfect, perplexed, and wholly unsatisfactory, leads to a just and reasonable presumption that other facts of the same nature have been concealed, since those which he has confessed might have been forever, and that this partial confession was either extorted from the said Warren Hastings by the dread of detection, or made with a view of removing suspicion, and preventing any further inquiry into his conduct.

That the said Warren Hastings, in a letter to the Court of Directors dated 21st of February, 1784, has confessed his having _privately received_ another sum of money, the amount of which he has not declared, but which, from the application he says he has made of it, could not be less than thirty-four thousand pounds sterling. That he has not informed the Directors from whom he received this money, at what time, nor on what account; but, on the contrary, has attempted to justify the receipt of it, which was illegal, by the application of it, which was unauthorized and unwarrantable, and which, if admitted as a reason for receiving money _privately_, would constitute a precedent of the most dangerous nature to the Company's service. That, in attempting to justify the receipt and application of the said money, he has endeavored to establish principles of conduct in a Governor which tend to subvert all order and regularity in the conduct of public business, to encourage and facilitate fraud and corruption in all offices of pecuniary trust, and to defeat all inquiry into the misconduct of any person in whom pecuniary trust is reposed.--That the said Warren Hastings, in his letter above mentioned, has made a declaration to the Court of Directors in the following terms: "Having had occasion to disburse from my own cash many sums, which, though required to enable me to execute the duties of my station, I have hitherto omitted to enter in my public accounts, and my own fortune being unequal to so heavy a charge, I have resolved to reimburse myself in a mode the most suitable to the situation of your affairs, by charging the same in my Durbar accounts of the present year, and crediting them by a sum _privately received_, and appropriated to your service in the same manner with other sums received on account of the Honorable Company, and already carried to their account." That at the time of writing this letter the said Warren Hastings had been in possession of the government of Fort William about twelve years, with a clear salary, or avowed emoluments, at no time less than twenty-five thousand pounds sterling a year, exclusive of which all the principal expenses of his residence were paid for by the Company. That, if the services mentioned by him were required to enable him to execute the duties of his station, he ought not to have omitted to enter them in his public accounts at the times when the expenses were incurred. That, if it was true, as he affirms, that, when he first engaged in these expenses, he had no intention to carry them to the account of the Company, there was no subsequent change in his situation which could justify his departing from that intention. That, if his own fortune in the year 1784 was unequal to so heavy a charge, the state of his fortune at any earlier period must have been still more unequal to so heavy a charge. That the fact so asserted by the said Warren Hastings leads directly to an inference palpably false and absurd, viz., that, the longer a Governor-General holds that lucrative office, the poorer he must become. That neither would the assertion, if it were true, nor the inference, if it were admitted, justify the conduct avowed by the said Warren Hastings in resolving to reimburse himself out of the Company's property without their consent or knowledge.--That the account transmitted in this letter is styled by himself _an aggregate of a contingent account of twelve years_; that all contingent accounts should be submitted to those who ought to have an official control over them, at annual or other shorter periods, in order that the expense already incurred may be checked and examined, and similar expenses, if disapproved of, may be prohibited in time; that, after a very long period is elapsed, all check and control over such expenses is impracticable, and, if it were practicable in the present instance, would be completely useless, since the said Warren Hastings, without waiting for the consent of the Directors, did _resolve to reimburse himself_. That the conduct of the said Warren Hastings, in withholding these accounts for twelve years together, and then resolving to reimburse himself without the consent of his employers, has been fraudulent in the first instance, and in the second amounts to a denial and mockery of the authority placed over him by law; and that he has thereby set a dangerous example to his successors, and to every man in trust or office under him.--That the mode in which he has reimbursed himself is a crime of a much higher order, and greatly aggravates whatever was already criminal in the other parts of this transaction. That the said Warren Hastings, in declaring that he should reimburse himself by crediting the Company by _a sum privately received_, has acknowledged himself guilty of an illegal act in receiving money _privately_. That he has suppressed or withheld every particular which could throw any light on a conduct so suspicious in a Governor as the _private_ receipt of money. That the general confession of the private receipt of a large sum in gross, in which no circumstance of time, place, occasion, or person, nor even the amount, is specified, tends to cover or protect any act of the same nature (as far as a general confession can protect such acts) which may be detected hereafter, and which in fact may not make part of the gross sum so confessed, and that it tends to perplex and defeat all inquiry into such practices.--That the said Warren Hastings, in stating to the Directors that he has resolved to reimburse himself in _a mode the most suitable to the situation of their affairs_, viz., by receiving money privately against law, has stated a presumption highly injurious to the integrity of the said Directors, viz., that they will not object to, or even inquire into, any extraordinary expenses incurred and charged by their Governors in India, provided such expenses are reimbursed by money privately and illegally received. That he has not explained what that situation of their affairs was or could be to which so dangerous and corrupt a principle was or might be applied.--That no evidence has been produced to prove that it was true, nor any ground of argument stated to show that it might be credible, that any native of India had voluntarily and gratuitously given money privately to the said Warren Hastings, that is, without some prospect of a benefit in return, or some dread of his resentment, if he refused. That it is not a thing to be believed, that any native would give large sums privately to a Governor, which he refused to give or lend publicly to government, unless it were to derive some adequate secret advantage from the favor, or to avoid some mischief from the enmity of such Governor.--That the late confessions made by the said Warren Hastings of money received against law are no proof that he did not originally intend to appropriate the same to his own use, such confessions having been made at a suspicious moment, when, and not before, he was apprised of the inquiries commenced in the House of Commons, and when a dread of the consequence of those inquiries might act upon his mind. That such confessions, from the obscure, intricate, and contradictory manner in which they are made, imply guilt in the said Warren Hastings, as far as they go; that they do not furnish any color of reason to conclude that he has confessed all the money which he may have corruptly received; but that, on the contrary, they warrant a just and reasonable presumption, that, in discovering some part of the bribes he had received, he hoped to lull suspicion, and thereby conceal and secure the rest.

That the Court of Directors, when the former accounts of these transactions came before them, did show an evident disposition not to censure the said Warren Hastings, but to give the most favorable construction to his conduct; that, nevertheless, they found themselves obliged "to confess that the statement of those transactions appeared to them in many parts so _unintelligible_, that they felt themselves under the necessity of calling on the Governor-General for an explanation, agreeably to his promise voluntarily made to them." That their letter, containing this requisition, was received in Bengal in the month of August, 1784, and that the said Warren Hastings did not embark for England until the 2d of February, 1785, but made no reply to that letter before his departure, owing, as he has since said, _to a variety of other more important occupations_. That, under pretence of such occupations, he neglected to transmit to the Court of Directors a copy of a paper which, he says, contained the _only_ account he ever kept of the transaction. That such a paper, or a copy of it, might have been transmitted without interrupting other important occupations, if any could be more important than that of giving a clear and satisfactory answer to the requisition of the Directors. That since his arrival in England he has written a letter to the chairman of that court, professedly in answer to their letter above mentioned, but in fact giving no explanation or satisfaction whatsoever on the points which they had declared to be unintelligible. That the terms of his letter are ambiguous and obscure, such as a guilty man might have recourse to in order to cover his guilt, but such as no innocent man, from whom nothing was required but to clear his innocence by giving plain answers to plain questions, could possibly have made use of. That in his letter of the 11th of July, 1785, he says, "that he has been kindly apprised that the information required as above _was yet expected from him_: that the submission which his respect would have enjoined him to pay to the command imposed on him _was lost to his recollection_, perhaps from the stronger impression which the first and distant perusal of it had left on his mind that it was rather intended as a reprehension for something which had given offence in his report of the original transaction than as expressive of any want of a further elucidation of it."[2]

That the said Warren Hastings, in affecting to doubt whether the information expressly required of him by his employers was expected or not, has endeavored to justify a criminal delay and evasion in giving it. That, considering the importance of the subject, and the recent date of the command, it is not possible _that it could be lost to his recollection_; much less is it possible that he could have understood the specific demand of an answer to specific questions to be intended only as a reprehension for a former offence, viz., the offence of withholding from the Directors that very explanation which he ought to have given in the first instance. That the said Warren Hastings, in his answer to the said questions, cautiously avoids affirming or denying anything in clear, positive terms, and professes to recollect nothing with absolute certainty. That he has not, even now, informed the Directors of the name of any one person from whom any part of the money in question was received, nor what was the motive of any one person for giving the same. That he has, indeed, declared, that his motive for lending to the Company, or depositing in their treasury in his own name, money which he has in other places declared to be their property, was to avoid ostentation, and that _lending_ the money was _the least liable to reflection_; yet, when he has stated these and other conjectural motives for his own conduct, he declares _he will not affirm, though he is firmly persuaded, that those were his sentiments on the occasion_. That of one thing only the said Warren Hastings declares he is _certain_, viz., "that it was his design originally to have _concealed_ the receipt of all the sums, except the second, even from the knowledge of the Court of Directors, but that, when fortune threw a sum in his way of a magnitude _which could not be concealed_, and the peculiar delicacy of his situation at the time in which he received it made him more circumspect of appearances, he _chose_ to apprise his employers of it." That the said Warren Hastings informs the Directors, that he had indorsed the bonds taken by him for money belonging to the Company, and lent by him to the Company, _in order to guard against their becoming a claim on the Company, as part of his estate, in the event of his death_; but he has not affirmed, nor does it anywhere appear, that he has surrendered the said bonds, as he ought to have done. That the said Warren Hastings, in affirming that he had not time to answer the questions put to him by the Directors, while he was in Bengal,--in not bringing with him to England the documents necessary to enable him to answer those questions, or in pretending that he has not brought them,--in referring the Directors back again to Bengal for those documents, and for any further information on a subject on which he has given them no information,--and particularly in referring them back to a person in Bengal for a paper which he says contained the _only_ account he ever kept of the transaction, while he himself professes to doubt whether that paper _be still in being_, whether _it be in the hands_ of that person, or whether that person _can recollect anything distinctly concerning it_,--has been guilty of gross evasions, and of palpable prevarication and deceit, as well as of contumacy and disobedience to the lawful orders of the Court of Directors, and thereby confirmed all the former evidence of his having constantly used the influence of his station for the most scandalous, illegal, and corrupt purposes.

IX.--RESIGNATION OF THE OFFICE OF GOVERNOR-GENERAL.

That Warren Hastings having by his agent, Lauchlan Macleane, Esquire, on the 10th day of October, in the year 1776, "signified to the Court of Directors his desire to resign his office of Governor-General of Bengal, and requested their nomination of a successor to the vacancy which would be thereby occasioned in the Supreme Council," the Court of Directors did thereupon desire the said Lauchlan Macleane "to inform them of the authority under which he acted in a point of such very great importance"; and the said Lauchlan Macleane "signifying thereupon his readiness to give the court every possible satisfaction on that subject, but the powers with which he was intrusted by the papers in his custody being mixed with other matters of a nature extremely confidential, he would submit the same to the inspection of any three of the members of the court," the said Court of Directors empowered the Chairman, Deputy Chairman, and Richard Becher, Esquire, to inspect the authorities, powers, and directions with which Mr. Macleane was furnished by Mr. Hastings to make the propositions contained in his letter of the 10th October, 1776, and to report their opinion thereon. And the said committee did accordingly, on the 23d of the said month, report, "that, having conferred with Mr. Macleane on the subject of his letter presented to the court the 11th instant, they found, that, from the purport of Mr. Hastings's instructions, contained in a paper in his own handwriting given to Mr. Macleane, and produced by him to them, Mr. Hastings declared he would not continue in the government of Bengal, unless certain conditions therein specified could be obtained, of which they saw no probability; and Mr. George Vansittart had declared to them, that he was present when these instructions were given to Mr. Macleane, and when Mr. Hastings empowered Mr. Macleane to declare his resignation to the said court; that Mr. Stewart had likewise confirmed to them, that Mr. Hastings declared to him, that he had given directions to the above purpose by Mr. Macleane."

And the Court of Directors, having received from the said report due satisfaction respecting the authority vested in the said Lauchlan Macleane to propose the said resignation of the office of Governor-General of Bengal, did unanimously resolve to accept the same, and did also, under powers vested in the said court by the act of the 13th year of his present Majesty, "nominate and appoint Edward Wheler, Esquire, to succeed to the office in the Council of Fort William in Bengal which will become vacant by the said resignation, if such nomination shall be approved by his Majesty": which nomination and appointment was afterwards in due form approved and confirmed by his Majesty.

That the Court of Directors did, by a postscript to their general letter, dated 25th October, 1776, acquaint the Governor-General and Council at Calcutta of their acceptance of the said resignation, of their appointment of Edward Wheler, Esquire, to fill the said vacancy, and of his Majesty's approbation of the said appointment, together with the grounds of their said proceedings; and did transmit to the said Governor-General and Council copies of the said instruments of appointment and confirmation.

That the said dispatches from the Court of Directors were received at Calcutta, and were read in Council on the 19th day of June, in the year 1777; and that Warren Hastings, Esquire, having taken no steps to yield the government to his successor, General Clavering, and having observed a profound silence on the subject of the said dispatches, he, the said General Clavering, did, on the next day, being the 20th of June, by a letter addressed to the said Warren Hastings, require him to surrender the keys of Fort William, and of the Company's treasuries; but the said Warren Hastings did positively refuse to comply with the said requisition, "denying that his office was vacated, and declaring his resolution to assert and maintain his authority by every legal means."

That the said General Clavering, conceiving that the office of Governor-General was vacated by the arrival of the said dispatches, which acquainted the Council-General of the resignation of the said Warren Hastings and the appointment of the said Edward Wheler, Esquire, and that he, the said General Clavering, had in consequence thereof legally succeeded, under the provisions of the act of the 13th year of his present Majesty's reign, to the said office of Governor-General, become vacant in the manner aforesaid, did, in virtue thereof, issue in his own name summonses to Richard Barwell, Esquire, and Philip Francis, Esquire, members of the Council, to attend the same, and in the presence of the said Philip Francis, Esquire, who obeyed the said summons, did take the oaths as Governor-General, and did sit and preside in Council as Governor-General, and prepared several acts and resolutions in the said capacity of Governor-General, and did, amongst other things, prepare a proclamation to be made of his said succession to the government, and of its commencing from the date of the said proclamation, but did not carry any of the acts or resolutions so prepared into execution.

The said Warren Hastings did, notwithstanding thereof, and in pursuance of his resolution to assert and maintain his authority, illegally and unjustifiably summon the Council to meet in another department, and did sit and preside therein, apart from the said General Clavering and his Council, and, in conjunction with Richard Barwell, Esquire, who concurred therein, issued sundry orders and did sundry acts of government belonging to the office of Governor-General, and, amongst others, did order several letters to be written in the name of the Governor-General and Council, and did subscribe the same, to the commandant of the garrison of Fort William, and to the commanding officer at Barrackpore, and to the commanding officers at the other stations, and also to the provincial councils and collectors in the provinces, enjoining them severally "to obey no orders excepting such as should be signed by the said Warren Hastings, or a majority of his Council."

That the said Warren Hastings did, by the said proceedings, which were contrary both to law and to good faith, constitute a double government, thereby destroying and annihilating all government whatever; and, by his said orders to the military officers, did prepare for open resistance by arms, exposing thereby the settlement, and all the inhabitants, subjects of or dependent on the British government, whether native or European, not only to political distractions, but to the horrors of civil war; and did, by exposing the divisions and weakness of the supreme government, and thereby loosening the obedience of the provinces, shake the whole foundation of British authority, and imminently endanger the existence of the British nation in India.

That the said evils were averted only by the moderation of the said General Clavering and Philip Francis, Esquire, in consenting to a reference, and submitting to the decision of the judges of the Supreme Court of Judicature, although they entertained no doubts themselves on the legality of their proceedings and the validity of General Clavering's instant right to the chair, and although they were not in any way bound by law to consult the said judges, who had no legal or judicial authority therein in virtue of their offices or as a court of justice, but were consulted, and interposed their advice, only as individuals, by the voluntary reference of the parties in the said dispute. And the said Warren Hastings, by his declaration, entered in Minutes of Council, "that it was his determination to abide by the opinion of the judges," and by the measures he had previously taken as aforesaid to enforce the same by arms, did risk all the dangerous consequences above mentioned: which must have taken place, if the said General Clavering and Philip Francis, Esquire, had not been more tender of the public interests, and less tenacious of their own rights, and had persisted in their claim, as they were by law entitled to do, the extra-judicial interposition of the judges notwithstanding; and from which claim they receded only from their desire to preserve the peace of the settlement, and to prevent the mischiefs which the illegal resistance of the said Warren Hastings would otherwise infallibly have occasioned.

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.

That the said Warren Hastings did, in his minutes of the 13th of February, 1778, himself support that opinion, in the comparison to be made between Mr. Thomson's proposals, of undertaking the same service for 60,000 rupees a year for nine years, and the terms of Mr. Frazer's contracts: preferring the latter, because these were "to effect a complete repair, which could hardly be concluded in one season, and the subsequent expense would be but trifling."

Notwithstanding which, the said Warren Hastings urged and prevailed upon the Council to allow in the first year the full amount proposed by Mr. Kinlock in his estimate of the necessary repairs, and did burden the Company with what he must have deemed to be, for the greater part, an unnecessary expense of 80,000 rupees per annum for four years.

That the permission granted to Mr. Frazer to make dobunds, or new and additional embankments in aid of the old ones, whenever he should judge them necessary, at the charge of government, (the said charge to be verified by the oath of the said Frazer, without any voucher,) was a power very much to be suspected, and very improper to be intrusted to a contractor who had already covenanted to keep the old pools in perfect repair, and to construct new ones wherever the old pools had been broken down and washed away, or where the course of the rivers might have rendered new ones necessary, in consideration of the great sums stipulated to be paid to him by the government.

That the grant of the foregoing contracts, and the permission afterwards annexed to the second of the said grants, become much more reprehensible from a consideration of the circumstances of the person to whom such a grant was made.

That the due performance of the service required local knowledge and experience, which the said Archibald Frazer, being an officer in the Supreme Court of Justice, could not have possessed.

XII.--CONTRACTS FOR OPIUM.

That it appears that the opium produced in Bengal and Bahar is a considerable and lucrative article in the export trade of those provinces; that the whole produce has been for many years monopolized either by individuals or by the government; that the Court of Directors of the East India Company, in consideration of the hardship imposed on the native owners and cultivators of the lands, who were deprived of their natural right of dealing with many competitors, and compelled to sell the produce of their labor to a single monopolist, did authorize the Governor-General and Council to give up that commodity as an article of commerce.