by the _pottah_ of the Governor-General and Council, which contains an
enumeration of the names of all the places which were given up to him,
and consequently of this among the rest,--did he, either before he put
the question in Council upon that pottah, or afterwards, tell the
Council they were going to put forts into the man's hands to which he
had no right, and which could be held only for rebellious and suspected
purposes? We refer your Lordships to the places in which all these
transactions are mentioned, and you will there find Mr. Hastings took no
one exception whatever against them; nor, till he was resolved upon the
destruction of this unhappy man, did he ever so much as mention them. It
was not till then that he discovers the possession of these forts by the
Rajah to be _a solecism in government_.
After quoting the noble examples of Sujah Dowlah, and the other persons
whom I have mentioned to you, he proceeds to say, that some of his
predecessors, without any pretensions to sovereign authority, endeavored
to get these forts into their possession; and "I was justified," says
he, "by the intention of my predecessors." Merciful God! if anything can
surpass what he has said before, it is this: "My predecessors, without
any title of sovereignty, without any right whatever, wished to get
these forts into their power; I therefore have a right to do what they
wished to do; and I am justified, not by the acts, but by the
_intentions_ of my predecessors." At the same time he knows that these
predecessors had been reprobated by the Company for this part of their
proceedings; he knew that he was sent there to introduce a better
system, and to put an end to this state of rapacity. Still, whatever his
predecessors _wished_, however unjust and violent it might be, when the
sovereignty came into his hands, he maintains that he had a right to do
all which they were desirous of accomplishing. Thus the enormities
formerly practised, which the Company sent him to correct, became a
sacred standard for his imitation.
Your Lordships will observe that he slips in the word _sovereignty_ and
forgets compact; because it is plain, and your Lordships must perceive
it, that, wherever he uses the word sovereignty, he uses it to destroy
the authority of all compacts; and accordingly in the passage now before
us he declares that there is an invalidity in all compacts entered into
in India, from the nature, state, and constitution of that empire. "From
the disorderly form of its government," says he, "there is an invalidity
in all compacts and treaties whatever." "Persons who had no treaty with
the Rajah wished," says he, "to rob him: therefore I, who have a treaty
with him, and call myself his sovereign, have a right to realize all
their wishes."
But the fact is, my Lords, that his predecessors never did propose to
deprive Bulwant Sing, the father of Cheyt Sing, of his zemindary. They,
indeed, wished to have had the dewanny transferred to them, in the
manner it has since been transferred to the Company. They wished to
receive his rents, and to be made an intermediate party between him and
the Mogul emperor, his sovereign. These predecessors had entered into
no compact with the man: they were negotiating with his sovereign for
the transfer of the dewanny or stewardship of the country, which
transfer was afterwards actually executed; but they were obliged to give
the country itself back again to Bulwant Sing, with a guaranty against
all the pretensions of Sujah Dowlah, who had tyrannically assumed an
arbitrary power over it. This power the predecessors of Mr. Hastings
might also have wished to assume; and he may therefore say, according to
the mode of reasoning which he has adopted,--"Whatever they wished to
do, but never succeeded in doing, I may and ought to do of my own will.
Whatever fine Sujah Dowlah would have exacted I will exact. I will
penetrate into that tiger's bosom, and discover the latent seeds of
rapacity and injustice which lurk there, and I will make him the subject
of my imitation."
These are the principles upon which, without accuser, without judge,
without inquiry, he resolved to lay a fine of 500,000_l._ on Cheyt Sing!
In order to bind himself to a strict fulfilment of this resolution, he
has laid down another very extraordinary doctrine. He has laid it down
as a sort of canon, (in injustice and corruption,) that, whatever
demand, whether just or unjust, a man declares his intention of making
upon another, he should exact the precise sum which he has determined
upon, and that, if he takes anything less, it is a proof of corruption.
"I have," says he, "shown by this testimony that I never intended to
make any communication to Cheyt Sing of taking less than the fifty lacs
which in my own mind I had resolved to exact." And he adds,--"I shall
make my last and solemn appeal to the breast of every man who shall read
this, whether it is likely, or morally possible, that I should have tied
down my own future conduct to so decided a process and series of acts,
if I had secretly intended to threaten, or to use a degree of violence,
for no other purpose than to draw from the object of it a mercenary
atonement for my own private emolument, and suffer all this tumult to
terminate in an ostensible and unsubstantial submission to the authority
which I represented."
He had just before said, "If I ever talked of selling the Company's
sovereignty to the Nabob of Oude, it was only _in terrorem_." In the
face of this assertion, he here gives you to understand he never held
out anything _in terrorem_, but what he intended to execute. But we will
show you that in fact he had reserved to himself a power of acting _pro
re nata_, and that he intended to compound or not, just as answered his
purposes upon this occasion. "I admit," he says, "that I did not enter
it [the intention of fining Cheyt Sing] on the Consultations, because it
was not necessary; even this plan itself of the fine was not a fixed
plan, but to be regulated by circumstances, both as to the substantial
execution of it and the mode." Now here is a man who has given it in a
sworn narrative, that he did not intend to have a farthing less. Why?
"Because I should have menaced and done as in former times has been
done,--made great and violent demands which I reduce afterwards for my
own corrupt purposes." Yet he tells you in the course of the same
defence, but in another paper, that he had no fixed plan, that he did
not know whether he should exact a fine at all, or what should be his
mode of executing it.
My Lords, what shall we say to this man, who declares that it would be a
proof of corruption not to exact the full sum which he had threatened to
exact, but who, finding that this doctrine would press hard upon him,
and be considered as a proof of cruelty and injustice, turns round and
declares he had no intention of exacting anything? What shall we say to
a man who thus reserves his determination, who threatens to sell a
tributary prince to a tyrant, and cannot decide whether he should take
from him his forts and pillage him of all he had, whether he should
raise 500,000_l._ upon him, whether he should accept the 220,000_l._
offered, (which, by the way, we never knew of till long after the whole
transaction,) whether he should do any or all of those things, and then,
by his own account, going up to Benares without having resolved anything
upon this important subject?
My Lords, I will now assume the hypothesis that he at last discovered
sufficient proof of rebellious practices; still even this gave him no
right to adduce such rebellion in justification of resolutions which he
had taken, of acts which he had done, before he knew anything of its
existence. To such a plea we answer, and your Lordships will every one
of you answer,--"You shall not by a subsequent discovery of rebellious
practices, which you did not know at the time, and which you did not
even believe, as you have expressly told us here, justify your conduct
prior to that discovery." If the conspiracy which he falsely imputes to
Cheyt Sing, if that wild scheme of driving the English out of India, had
existed, think in what miserable circumstances we stand as prosecutors,
and your Lordships as judges, if we admit a discovery to be pleaded in
justification of antecedent acts founded upon the assumed existence of
that which he had no sort of proof, knowledge, or belief of!
My Lords, we shall now proceed to another circumstance, not less
culpable in itself, though less shocking to your feelings, than those to
which I have already called your attention: a circumstance which throws
a strong presumption of guilt upon every part of the prisoner's conduct.
Having formed all these infernal plots in his mind, but uncertain which
of them he should execute, uncertain what sums of money he should
extort, whether he should deliver up the Rajah to his enemy or pillage
his forts, he goes up to Benares; but he first delegates to himself all
the powers of government, both civil and military, in the countries
which he was going to visit.
My Lords, we have asserted in our charge that this delegation and
division of power was illegal. He invested _himself_ with this
authority; for _he_ was the majority in the Council: Mr. Wheler's
consent or dissent signifying nothing. He gave himself powers which the
act of Parliament did not give him. He went up to Benares with an
illegal commission, civil and military; and to prove this I shall beg
leave to read the provisions of the act of Parliament. I shall show what
the creature ought to be, by showing the law of the creator: what the
legislature of Great Britain meant that Governor Hastings should be, not
what he made himself.
[_Mr. Burke then read the seventh section of the act._]
Now we do deny that there is by this act given, or that under this act
there can be given, to the government of India, a power of dividing its
unity into two parts, each of which shall separately be a unity and
possess the power given to the whole. Yet, my Lords, an agreement was
made between him and Mr. Wheler, that he (Mr. Hastings) should have
every power, civil and military, in the upper provinces, and that Mr.
Wheler should enjoy equal authority in the lower ones.
Now, to show you that it is impossible for such an agreement to be
legal, we must refer you to the constitution of the Company's
government. The whole power is vested in the Council, where all
questions are to be decided by a majority of voices, and the members are
directed to record in the minutes of their proceedings not only the
questions decided, but the grounds upon which each individual member
founds his vote. Now, although the Council is competent to delegate its
authority for any _specific_ purpose to any servant of the Company, yet
to admit that it can delegate its authority _generally_, without
reserving the means of deliberation and control, would be to change the
whole constitution. By such a proceeding the government may be divided
into a number of independent governments, without a common deliberative
Council and control. This deliberative capacity, which is so strictly
guarded by the obligation of recording its consultations, would be
totally annihilated, if the Council divided itself into independent
parts, each acting according to its own discretion. There is no similar
instance in law, there is no similar instance in policy. The conduct of
these men implies a direct contradiction; and you will see, by the
agreement they made to support each other, that they were themselves
conscious of the illegality of this proceeding.
After Mr. Hastings had conferred absolute power upon himself during his
stay in the upper provinces by an order of Council, (of which Council he
was himself a majority,) he entered the following minute in the
Consultations. "The Governor-General delivers in the following minute.
In my minute which I laid before the court on the 21st May, I expressed
the satisfaction with which I could at this juncture leave the
Presidency, from the mutual confidence which was happily established
between Mr. Wheler and me. I now readily repeat that sentiment, and
observe with pleasure that Mr. Wheler confirms it. Before my departure,
it is probable that we shall in concert have provided at the board for
almost every important circumstance that can eventually happen during my
absence; but if any should occur for which no previous provision shall
have been made in the resolutions of the board, Mr. Wheler may act with
immediate decision, and with the fullest confidence of my support, in
all such emergencies, as well as in conducting the ordinary business of
the Presidency, and in general in all matters of this government,
excepting those which may specially or generally be intrusted to me. Mr.
Wheler during my absence may consider himself as possessed of the full
powers of the Governor-General and Council of this government, as in
effect he is by the constitution; and he may be assured, that, so far as
my sanction and concurrence shall be, or be deemed, necessary to the
confirmation of his measures, he shall receive them."
Now here is a compact of iniquity between these two duumvirs. They each
give to the other the full, complete, and perfect powers of the
government; and in order to secure themselves against any obstacles that
might arise, they mutually engage to ratify each other's acts: and they
say this is not illegal, because Lord Cornwallis has had such a
deputation. I must first beg leave to observe that no man can justify
himself in doing any illegal act by its having been done by another;
much less can he justify his own illegal act by pleading an act of the
same kind done subsequently to his act, because the latter may have been
done in consequence of his bad example. Men justify their acts in two
ways,--by law and by precedent; the former asserts the right, the latter
presumes it from the example of others. But can any man justify an act,
because ten or a dozen years after another man has done the same thing?
Good heavens! was there ever such a doctrine before heard? Suppose Lord
Cornwallis to have done wrong; suppose him to have acted illegally; does
that clear the prisoner at your bar? No: on the contrary, it aggravates
his offence; because he has afforded others an example of corrupt and
illegal conduct. But if even Lord Cornwallis had preceded, instead of
following him, the example would not have furnished a justification.
There is no resemblance in the cases. Lord Cornwallis does not hold his
government by the act of 1773, but by a special act made afterwards; and
therefore to attempt to justify acts done under one form of appointment
by acts done under another form is to the last degree wild and absurd.
Lord Cornwallis was going to conduct a war of great magnitude, and was
consequently trusted with extraordinary powers. He went in the two
characters of governor and commander-in-chief; and yet the legislature
was sensible of the doubtful validity of a Governor-General's carrying
with him the whole powers of the Council. But Mr. Hastings was not
commander-in-chief, when he assumed the whole military as well as civil
power. Lord Cornwallis, as I have just said, was not only
commander-in-chief, but was going to a great war, where he might have
occasion to treat with the country powers in a civil capacity; and yet
so doubtful was the legislature upon this point, that they passed a
special act to confirm that delegation, and to give him a power of
acting under it.
My Lords, we do further contend that Mr. Hastings had no right to assume
the character of commander-in-chief; for he was no military man, nor was
he appointed by the Company to that trust. His assumption of the
military authority was a gross usurpation. It was an authority to which
he would have had no right, if the whole powers of government were
vested in him, and he had carried his Council with him on his horse. If,
I say, Mr. Hastings had his Council on his crupper, he could neither
have given those powers to himself nor made a partition of them with Mr.
Wheler. Could Lord Cornwallis, for instance, who carried with him the
power of commander-in-chief, and authority to conclude treaties with all
the native powers, could he, I ask, have left a Council behind him in
Calcutta with equal powers, who might have concluded treaties in direct
contradiction to those in which he was engaged? Clearly he could not;
therefore I contend that this partition of power, which supposes an
integral authority in each counsellor, is a monster that cannot exist.
This the parties themselves felt so strongly that they were obliged to
have recourse to a stratagem scarcely less absurd than their divided
assumption of power. They entered into a compact to confirm each other's
acts, and to support each other in whatever they did: thus attempting to
give their separate acts a legal form.
I have further to remark to your Lordships, what has just been suggested
to me, that it was for the express purpose of legalizing Lord
Cornwallis's delegation that he was made commander-in-chief as well as
Governor-General by the act.
The next plea urged by Mr. Hastings is conveniency. "It was
_convenient_," he says, "for me to do this." I answer, No person acting
with delegated power can delegate that power to another. _Delegatus non
potest delegare_ is a maxim of law. Much less has he a right to
supersede the law, and the principle of his own delegation and
appointment, upon any idea of convenience. But what was the conveniency?
There was no one professed object connected with Mr. Hastings's going up
to Benares which might not as well have been attained in Calcutta. The
only difference would have been, that in the latter case he must have
entered some part of his proceedings upon the Consultations, whether he
wished it or not. If he had a mind to negotiate with the Vizier, he had
a resident at his court, and the Vizier had a resident in Calcutta. The
most solemn treaties had often been made without any Governor-General
carrying up a delegation of civil and military power. If it had been
his object to break treaties, he might have broken them at Calcutta, as
he broke the treaty of Chunar. Is there an article in that treaty that
he might not as well have made at Calcutta? Is there an article that he
broke (for he broke them all) that he could not have broken at Calcutta?
So that, whether pledging or breaking the faith of the Company, he might
have done both or either without ever stirring from the Presidency.
I can conceive a necessity so urgent as to supersede all laws; but I
have no conception of a necessity that can require two
governors-general, each forming separately a _supreme_ council. Nay, to
bring the point home to him,--if he had a mind to make Cheyt Sing to pay
a fine, as he called it, he could have made him do that at Calcutta as
well as at Benares. He had before contrived to make him pay all the
extra demands that were imposed upon him; and he well knew that he could
send Colonel Camac, or somebody else, to Benares, with a body of troops
to enforce the payment. Why, then, did he go to try experiments there in
his own person? For this plain reason: that he might be enabled to put
such sums in his own pocket as he thought fit. It was not and could not
be for any other purpose; and I defy the wit of man to find out any
other.
He says, my Lords, that Cheyt Sing might have resisted, and that, if he
had not been there, the Rajah might have fled with his money, or raised
a rebellion for the purpose of avoiding payment. Why, then, we ask, did
he not send an army? We ask, whether Mr. Markham, with an army under the
command of Colonel Popham, or Mr. Fowke, or any other Resident, was not
much more likely to exact a great sum of money than Mr. Hastings
without an army? My Lords, the answer must be in the affirmative; it is
therefore evident that no necessity could exist for his presence, and
that his presence and conduct occasioned his being defeated in this
matter.
We find this man, armed with an illegal commission, undertaking an
enterprise which he has since said was perilous, which proved to be
perilous, and in which, as he has told us himself, the existence of the
British empire in India was involved. The talisman, (your Lordships will
remember his use of the word,) that charm which kept all India in order,
which kept mighty and warlike nations under the government of a few
Englishmen, would, I verily believe, have been broken forever, if he, or
any other Governor-General, good or bad, had been killed. Infinite
mischiefs would have followed such an event. The situation in which he
placed himself, by his own misconduct, was pregnant with danger; and he
put himself in the way of that danger without having any armed force
worth mentioning, although he has acknowledged that Cheyt Sing had then
an immense force. In fact, the demand of two thousand cavalry proves
that he considered the Rajah's army to be formidable; yet,
notwithstanding this, with four companies of sepoys, poorly armed and
ill provisioned, he went to invade that fine country, and to force from
its sovereign a sum of money, the payment of which he had reason to
think would be resisted. He thus rashly hazarded his own being and the
being of all his people.
"But," says he, "I did not imagine the Rajah intended to go into
rebellion, and therefore went unarmed." Why, then, was his presence
necessary? Why did he not send an order from Calcutta for the payment of
the money? But what did he do, when he got there? "I was alarmed," says
he; "for the Rajah surrounded my budgero with two thousand men: that
indicated a hostile disposition." Well, if he did so, what precaution
did Mr. Hastings take for his own safety? Why, none, my Lords, none. He
must therefore have been either a madman, a fool, or a determined
declarer of falsehood. Either he thought there was no danger, and
therefore no occasion for providing against it, or he was the worst of
governors, the most culpably improvident of his personal safety, of the
lives of his officers and men, and of his country's honor.
The demand of 500,000_l._ was a thing likely to irritate the Rajah and
to create resistance. In fact, he confesses this. Mr. Markham and he had
a discourse upon that subject, and agreed to arrest the Rajah, because
they thought the enforcing this demand might drive him to his forts, and
excite a rebellion in the country. He therefore knew there was danger to
be apprehended from this act of violence. And yet, knowing this, he sent
one unarmed Resident to give the orders, and four unarmed companies of
sepoys to support him. He provokes the people, he goads them with every
kind of insult added to every kind of injury, and then rushes into the
very jaws of danger, provoking a formidable foe by the display of a
puny, insignificant force.
In expectation of danger, he seized the person of the Rajah, and he
pretends that the Rajah suffered no disgrace from his arrest. But, my
Lords, we have proved, what was stated by the Rajah, and was well known
to Mr. Hastings, that to imprison a person of elevated station, in that
country, is to subject him to the highest dishonor and disgrace, and
would make the person so imprisoned utterly unfit to execute the
functions of government ever after.
I have now to state to your Lordships a transaction which is worse than
his wantonly playing with the safety of the Company, worse than his
exacting sums of money by fraud and violence. My Lords, the history of
this transaction must be prefaced by describing to your Lordships the
duty and privileges attached to the office of _Naib_. A Naib is an
officer well known in India, as the administrator of the affairs of any
government, whenever the authority of the regular holder is suspended.
But, although the Naib acts only as a deputy, yet, when the power of the
principal is totally superseded, as by imprisonment or otherwise, and
that of the Naib is substituted, he becomes the actual sovereign, and
the principal is reduced to a mere pensioner. I am now to show your
Lordships whom Mr. Hastings appointed as Naib to the government of the
country, after he had imprisoned the Rajah.