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13 Geo. 3.
mitted as a member of the governour-general and That the said Warren Hastings could not plead council."
ignorance of the law in excuse for the said illegal And the said Warren Hastings and Richard acts, as it appears from the proceedings of the four Barwell, Esq. did again sit in council on the next preceding days, that he was well acquainted with day, being the 23d of June, without summoning the tenure, by which the members of the council either General Clavering, or Philip Francis, Esq. held their offices under the act of the 13th of His and did come to several other resolutions, and present Majesty, and has stated the same as a make several orders, contrary to law or justice, ground for retaining his own office, contrary to an and inconsistent with the tranquillity and the express declaration of the court of directors, and rity of the settlement ; that is to say, they ordered an instrument under the sign-manual of His Matheir secretary “ to notify to General Clavering, jesty; and the judges of the supreme court, in " that the board had declared his offices of senior their reasons for their decision in his favour, had "counsellor and commander-in-chief to be vacant; stated the provisions in the said act, and to furnish him with a copy of these proceed so far as they related to the matter in
c. 63. $ 10. "ings, containing the grounds of the board for dispute; from which it appeared, that there were " the aforesaid declaration."
but four grounds, on which the office of any And they ordered extracts of the said proceed member of the council could be vacated; namely, ings " to be issued in general orders, with letters death, removal, resignation, or promotion. And " to all the provincial councils and military sta as the act confined the power of removal to “ His " tions, directing them to publish the same in Majesty, his heirs and successours, upon repre“ general orders:” and they resolved, “ that all “sentation made by the court of directors of the “ military returns be made to the governour-ge “ said united company for the time being ;” and “neral and council in their military department, conferred no such power on the governour-general, “ until a commander-in-chief shall be appointed or a majority of the council, to remove on any “ by the company."
ground, or for any cause whatever, one of their That on the day following, that is to say, on colleagues ; so, granting the claim of General the 24th of June, the said Warren Hastings did Clavering to the chair, and his acts done in furagain omit to summon General Clavering to coun therance thereof, to have been illegal, and criminal cil
, and did again, together with Richard Barwell, in whatever degree, yet it did not furnish to the Esquire, who concurred therein, adhere to and rest of the council any ground to remove him from confirm the said illegal resolutions come to on the his office of counsellor under the provisions of the two former days, declaring, “ that they could not said act; and there could therefore remain only “ be retracted but by the present authority of the his resignation or promotion, as a possible means “ law, or by future orders from home;" and aggra- of vacating his said office. But with regard to vating the guilt of the said unjustifiable acts by the promotion of General Clavering to the office declaring, as the said Warren Hastings did, “ that of governour-general, although he claimed it him
they were not the precipitate effects of an in- self, yet, as Mr. Hastings did not admit it, and as
stant and passionate impulse, but the fruits of in fact it was even receded from by General Cla" long and most temperate deliberations, of in-vering, it could not be considered, at least by "evitable necessity, of the strictest sense of pub- Mr. Hastings, as a valid ground for vacating his " lick duty, and of a conviction equal in its im- office of senior counsellor, since the act requires “ pression on his mind to absolute certainty.” for that purpose not a rejected claim, but an actual
That the said Warren Hastings was the less ex- and effectual promotion; and General Clavering's cusable in this obstinate adherence to his former office of counsellor could no more be vacated by unjust proceedings, as the said declarations were such a naked claim, unsupported and disallowed, made in answer to a motion made by Philip Fran- than the seat of a member of the house of commons cis, Esquire, for the reversal of the said proceed could be vacated, and a new writ issued to supply ings, and to a minute introducing the said motion; the vacancy, by his claim to the office of steward in which Mr. Francis set forth in a clear and forci- of the Chiltern Hundreds, when His Majesty has ble manner, and in terms with which the court of refused to appoint him to the said office. And directors have since declared their entire concur with regard to resignation, although the said Warrence, both the extreme danger, and the illegality ren Hastings, as a colour to his illegal resolutions, and invalidity, of the said proceedings of Warren had affectedly introduced the word “resigned” Hastings and Richard Barwell, Esq. concluding amongst those of “ relinquished, surrendered, and the said minute by the following conciliatory de vacated,” yet
he well knew, that General Claverclaration : “ and, that this salutary motion may ing had made vo offer, nor declaration, of his re“ not be impeded by any idea or suspicion, that signation of his offices of senior counsellor and “ General Clavering may do any act inconsistent commander-in-chief; and that he did not claim the “ with the acquiescence, which both he and I office of governour-general on the ground of any " have ayowed in the decision of the judges, I such resignation made by himself, but on the ground “ will undertake to answer for him in this respect; of a resignation made by the said Warren Hast" or that, if he should depart from the true spiritings, which resignation the said Warren Hasting's "and meaning of that acquiescence, I will not did not admit ; and the use of the term resigned, “ be a party with him in such proceedings." on that occasion, was therefore a manifest and
wilful misconstruction and misapplication of the and so far as the acts of Lauchlin Macleane, Esq. words of the act of His present Majesty. And and the court of directors, were binding on him ; such misinterpretation and false extension of the but, on the contrary, he grounds his refusal to comterm of resignation was the more indecent in the plete the same, not on any interpretation of the said Warren Hastings, as he was at the same mo- words, in which the said resignation, and the other ment disavowing and refusing to ve effect to instruments aforesaid, were conceived, but rather his own clear and express resignation, according on a disavowal (not direct indeed, but implied) to the true intent and meaning of the word as used of his said agent, and of the powers, under which in the said act, made by his agent, duly authorized the said agent had claimed to act in his behalf. and instructed by himself so to do, to an authority Neither did the said Warren Hastings ground his competent to receive and accept the same. said refusal on any objection to the particular day,
That although the said Warren Hastings did or period, or circumstances, in which the requisiafterwards recede from the said illegal measures tion of General Clavering was made; nor accomin compliance with the opinion and advice of the pany the said refusal with any qualification in that judges again interposed, and did thereby avoid respect, or with any intimation, that he would, at the guilt of such further acts, and the blame of any future or more convenient season, comply with such further evils, as must have been consequent the same ; although such an intimation might proon a persistance therein, yet he was, nevertheless, bably have induced General Clavering to wave an still guilty of the illegal acts above described ; and instant and immediate claim to the chair, and the same are great crimes and misdemeanours. might therefore have prevented the distractions,
That, although the judges did decide, that the which happened, and the greater evils, which office of governour-general, held by the said impended, in consequence of the said claim of Warren Hastings, was not ipso facto and instanter General Clavering, and the said refusal of Warren vacated by the arrival of the said dispatches and Hastings, Esq. But the said Warren Hastings documents, transmitted by the court of directors ; did, on the contrary, express his said refusal in such and did consider the said consequences of the general and unqualified terms, as intimated an inresignation as awaiting some future act or event tention to resist absolutely and altogether, both for its complete and effectual operation; yet the then and at any future time, the said requisition of said judges did not declare any opinion on the general Clavering. And the subsequent proceedultimate invalidity of the said acts of Lauchlinings of the said Warren Hastings do all concur in Macleane, Esq. as not being binding on his prin-proving, that such was his intention ; for he did cipal, Warren Hastings, Esq. nor did they declare afterwards, in conformity to the advice of the any opinion, that the obligation of the said resig- judges, move a resolution in council, “ that all nation was not from the beginning conclusive and parties be placed in the same situation, in which effectual, although its operation was, from the they stood before the receipt of the last advices necessity of the case, on account of the distance “ from England; reserving and submitting to a between England and India, to take place only in “ decision in England the respective claims, that future; or that the said resignation made by Lauch- “ each party may conceive they have a right to lin Macleane, Esq. was only an offer or proposal “ make, but not acting upon those claims till such of a resignation to be made at some future and in- “ decision shall arrive in Bengal;" thereby clearly definite period, or a mere intimation of the desire and explicitly declaring, that it was not his intenof Warren Hastings, Esq. to resign at some future tion to surrender the government until such deand indefinite period, and that the said resignation, cision should arrive in Bengal, which could not notwithstanding the acceptance thereof by the be expected in less time than a year and a half court of directors, and the regular appointment after the date of the said resolution ; and thereby and confirmation of a successour, was still to re- clearly and explicitly declaring, that he did not main optional in the said Warren Hastings, to be consider his resignation as binding for the present. ratified or departed from at his future choice or And the said intention was manifested, if possible, pleasure ; nor did the said judges pronounce, nor still more directly and expressly in a letter written do any of their reasonings, which accompanied their by the said Warren Hastings to the court of didecision, tend to establish it as their opinion, that rectors, dated the 15th of August 1777, being even the time for ratifying and completing the said almost two months after the receipt of the said transaction was to be at the sole discretion of the dispatches; in which the said Warren Hastings said Warren Hastings; but they only delivered declares, that “ he did not hold himself bound by their opinion, as aforesaid, that his said office “ the notification made by Mr. Macleane, nor by “ has not yet been vacated, and therefore that the of the acts consequent of it.” “ actual assumption of the government by the That, such appearing to have been the intention “ member of the council next in succession was, of the said Warren Hastings, General Clavering “ in the actual circumstances, and rebus sic stan- was justified in immediately assuming the “ tibus, illegal."
ment, without waiting for any future act of the That the said Warren Hastings does no where said Warren Hastings for the actual surrender of himself contend, that the said resignation was not the said government, none such being likely to absolute, but optional, according to the true mean- happen; and Philip Francis, Esquire, was justiing and understanding of the parties in England, fied in supporting General Clavering in the same
on the soundest principles of justice, and on a written instructions (and which having in his posmàxim received in courts of equity, namely, that session he might as easily have given verbatim) to no one shall avail himself of his own wrong; and other words, which may appear less explicit, yet that, if any one refuse or neglect to perform that, they are in fact capable of only the same meaning; which he is bound to do, the rights of others shall for as at the time of giving the said instructions not be prejudiced thereby, but such acts shall be to his agents he was in full possession of his ofdeemed and reputed to have been actually per- fice, he could want no confirmation therein, except formed, and all the consequences shall be enforced, his own; and, in such circumstances, “ to require which would have followed from such actual per- “ certain things, as the conditions of his being conformance. And therefore the resolutions moved “firmed in his government,” is tantamount to a and voted in council by the said Warren Hastings, declaration, “ that he will not continue in his godeclaring the offices of General Clavering to be “vernment, unless those conditions can be obvacant, were not only illegal, inasmuch as the said
" tained.” And the said attempt at prevarication Warren Hastings had no authority to warrant such can serve its author the less, as either both sena declaration, even on the supposition of the acts tences have one and the same meaning, or if their of General Clavering being contrary to law; but meaning be different, the original instructions in the said resolutions were further highly culpable his own hand-writing, or, in other words, the thing and criminal, inasmuch as the said acts done by itself, must be preferred as evidence of its contents General Clavering, which were made the pre- to a loose statement of its purport, founded, pertence of that proceeding, were strictly regular and haps, on a loose recollection of it at a great dislegal.
tance of time. That the refusal of the said Warren Hastings That the said refusal of Warren Hastings, Esq. to ratify the resignation, and his disavowal of the was a breach of faith with the court of directors, said Lauchlin Macleane, his agent, is not justified and His Majesty's ministers in England; as the by any thing contained in his said letter to the said resignation was not merely a voluntary offer court of directors, dated on the 15th of August without any consideration, and therefore subject 1777, the said Warren Hastings no where directly to be recalled or retracted at the pleasure of the and positively asserting, that the said Lauchlin said Warren Hastings, but ought rather to be conMacleane was not his agent, and had not both full sidered as having been the result of a negociation and general powers, and even particular instruc-carried on between Mr. Macleane for the benefit tions for this very act; although the said Warren of Warren Hastings, Esq. on the one hand, and Hastings uses many indirect and circuitous, but by the court of directors for the interests of the insufficient and inapplicable, insinuations to that company on the other : which view of the transeffect. And the said letter does on the contrary action will appear the more probable, when it is contain a clear and express avowal, that the said considered, that at the time of the said resignation Lauchlin Macleane was his confidential agent, a strict enquiry had been carrying on by the court and that in that capacity he acted throughout, of directors into the conduct of the said Warren and particularly in this special matter, with zeal Hastings ; and the solicitor and counsel to the and fidelity. And the said letter does further company, and other eminent counsel, had given admit in effect the instructions produced by the it as their opinions, on cases stated to them, that said Lauchlin Macleane, Esquire, confirmed by there were grounds for suing the said Warren Mr. Vansittart and Mr. Stewart, and relied on Hastings in the courts of law and equity; and and confided in by the court of directors, by which that the company would be entitled to recover in the said Lauchlin Macleane appeared to be spe- the said suits against Warren Hastings, Esq. cially empowered to declare the said resignation ; several very large sums of money taken by him in the words of the said instruction being as follow: his office of governour-general, contrary to law, “ that he (Mr. Hastings) will not continue in the and in breach of his covenants, and of his duty to
government of Bengal,” “ unless certain condi- | the company and the publick; and the court of tions therein specified can be obtained :” and directors had also come to various severe resoluthe words of the said letter being as follow : tions of censure against the said Warren Hastings, " What I myself know with certainty, or can re- and amongst others to a resolution to recall the "collect at this distance of time, concerning the said Warren Hastings, and remove him from his
powers and instructions, which were given to office of governour-general, to answer for sundry “Messieurs Macleane and Graham, when they great crimes and delinquencies by him committed "undertook to be my agents in England, I will in his said office. “circumstantially relate.
And on these accounts it appears probable, that “I am in possession of two papers, which were the said resignation was tendered and accepted as " presented to those gentlemen at the time of their a consideration for some beneficial concessions
departure from Bengal; one of which comprises made in consequence thereof to the said Warren "four short propositions, which I required as Hastings in his said dangerous and desperate con
the conditions of my being confirmed in this dition. government."
And the said refusal was also an act of great And although the said Warren Hastings does disrespect to the court of directors, and to His here artfully somewhat change the words of his Majesty; and by rendering abortive their said
measures, solemnly and deliberately taken, and Stewart, whose honours and veracity were thereby ratified and confirmed by His Majesty, tended to brought into question, doubt, and suspicion. bring the authority of the court of directors, and And the said refusal was prejudicial to the afof His Majesty, into contempt.
fairs of the servants of the company in India, by And the said refusal was an injury to General shaking the confidence to be placed in their agents Clavering.
by those persons, with whom it might be for their And was also, or might have been, a great in interest to negociate on any matter of importance, jury to Edward Wheler, Esquire.
and by thus subjecting the communication of perAnd was an act of signal treachery to Lauchlin sons abroad with those at home to difficulties not Macleane, Esq. as also to Mr. Vansittart and Mr. known before.
X. SURGEON-GENERAL'S CONTRACT.
That the said Warren Hastings, in the year “ to enjoy any emolument arising from his being 1777, did grant to the surgeon-general a contract “ concerned in dieting the patients ; and that the for three years, for defraying every kind of hospital | “ occupations of surgeon and contractor should and medicine expence—not only in breach of the “ be forth with separated.”—That the said contract general orders of the court of directors with respect was in itself highly improper, and inconsistent to the duration of contracts, but in direct oppo- with the good of the service; as it afforded the sition to a particular order of the court of direct- greatest temptation to abuse, and established a ors, of the 30th of March 1774, when they di- pecuniary interest in the surgeon-general, contrary rected, “ that the surgeon should not be permitted to the duties of his station and profession.
XI. CONTRACTS FOR POOLBUNDY REPAIRS.
That the governour-general and council at | obtained for the company in the terms of these Fort William did, on the motion and recommenda- contracts, in consideration of the length of time tion of Warren Hastings, Esquire, enter into a for which they were to continue, the expence of contract with Archibald Frazer, Esquire, on the government upon this article was encreased by 17th of April 1778, for the repairs of the pools these engagements to a very great amount. and banks in the province of Burdwan, for two That it appears, that this contract had been heid years, at the rate of 120,000 sicca rupees for the for some years before by the rajah of Burdwan, at first year, and 80,000 rupees for the second year. the rate of 25,000 rupees per annum.
That on the 19th of December 1778 the said That the superintendent of Poolbundy repairs, Warren Hastings did further persuade the supreme after an accurate and diligent survey of the bunds council, to prolong the term of the above contract and pools, and the provincial council of Burdwan, with Archibald Frazer for the space of three years upon the best information they could procure, had more on the same conditions ; namely, the payment delivered it as their opinion to the governourof 80,000 sicca rupees for each year. To which general and council, before the said agreement was added a permission to Mr. Frazer to make was entered into, that after the heavy expence, dobunds, or special repairs, whenever he should (stated in Mr. Kinlock's estimate, viz. 119,405 judge them necessary, at the charge of govern- sicca rupees,) if disbursed as they recommended, ment.
the charge in future seasons would be greatly That the said contracts, both in the manner of reduced, and after one thorough and effectual their acceptance by the supreme council, without repair, they conceived a small annual expence having previously advertised for proposals, and in would be sufficient to keep the bunds up and prethe extent of their duration, were made in direct vent their going to decay. violation of the special orders of the court of That whatever extraordinary and unusual dadirectors.
mages the pools and bunds might have sustained, That so far from any advantage having been either from the neglect of the rajah's officers, or
from the violence of the then late rains, and the That the permission granted to Mr. Frazer to torrents thereby occasioned, to justify the expence make dobunds, or new and additional embankof the first year, yet as they were all considered ments in aid of the old ones, whenever he should and included in the estimate for that year, there judge them necessary, at the charge of government, could be no pretence for allowing and continuing (the said charge to be verified by the oath of the so large and burthensone a payment as 80,000 said Frazer, without any voucher,) was a power very rupees per annum for the four succeeding years. much to be suspected, and very improper to be
That the said Warren Hastings did, in his intrusted to a contractor, who had already coveminutes of the 13th of February 1778, himself nanted to keep the old pools in perfect repair, and support that opinion, in the comparison to be made to construct new ones wherever the old pools had between Mr. Thomson's proposals of undertaking been broken down and washed away, or where the same service for 60,000 rupees a year, for nine the course of the rivers might have rendered new years, and the terms of Mr. Frazer's contract; ones necessary, in consideration of the great sums preferring the latter, because these were “ to effect stipulated to be paid to him by the govern
a complete repair, which could hardly be con- ment. “ cluded in one season, and the subsequent ex- That the grant of the foregoing contracts, and pence would be but trifling."
the permission afterwards annexed to the second Notwithstanding which, the said Warren Hast- of the said grants, become much more reprehenings urged and prevailed upon the council to allow sible from a consideration of the circumstances of in the first year the full amount proposed by Mr. the person to whom such a grant was made. Kinlock in his estimate of the necessary repairs, That the due performance of the service required and did burthen the company with what he must local knowledge and experience, which the said have deemed to be, for the greater part, an un- Archibald Frazer, being an officer in the supreme necessary expence of 80,000 rupees per annum court of justice, could not have possessed.
for four years.
XII. CONTRACTS FOR OPIUM.
That it appears, that the opium produced in notwithstanding a clause had been inserted in that Bengal and Bahar is a considerable and lucrative contract, by which it was left open to the court of article in the export trade of those provinces ; that directors to annul the same at the expiration of the the whole produce has been for many years mono
first or second year. polized either by individuals or by the government; That about the end of the year 1780 the said that the court of directors of the East India com- Warren Hastings, in contradiction to the order pany, in consideration of the hardship imposed on above mentioned, did take away the sale of the the native owners and cultivators of the lands, who opium from the board of trade, though he diswere deprived of their natural right of dealing with claimed, at the same time, any intention of immany competitors, and compelled to sell the pro- plying a censure on their management. duce of their labour to a single monopolist, did That in March 1781 the said Warren Hastings authorize the governour-general and council to did grant to Steven Sullivan, son of Lawrence give up that commodity as an article of commerce. Sullivan, chairman of the court of directors of the
That while the said commodity continued to be East India company, a contract for the provision a monopoly for the benefit of government, and of opium, without advertising for proposals, and managed by a contractor, the contracts for pro- without even receiving any written proposals from viding it were subject to the company's funda- him the said Sullivan ; that he granted this conmental regulation, namely, to be put up to auction, tract for four years, and at the request of the said and disposed of to the best bidder; and that the Sullivan did omit that clause, which was inserted company particularly ordered, that the commodity in the preceding contract, and by which it was when provided should be consigned to the board rendered liable 'to be determined by orders from of trade, who were directed to dispose thereof by the company; the said Warren Hastings depublick auction.
claring, contrary to truth, that such clause was That in May 1777 the said Warren Hastings now unnecessary, as the directors had approved granted to John Mackenzie a contract for the pro- the contract. vision of opium, to continue three years, and with- That the said Sullivan had been but a few months out advertising for proposals : that this transac- in Bengal when the above contract was given to tion was condemned by the court of directors, I him; that he was a stranger to the country, and