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mitted as a member of the governour-general and council."

And the said Warren Hastings and Richard Barwell, Esq. did again sit in council on the next day, being the 23d of June, without summoning either General Clavering, or Philip Francis, Esq. 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 proceed"ings, 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 sta"tions, directing them to publish the same in general orders" and they resolved, “that all military returns be made to the governour-ge"neral and council in their military department, "until a commander-in-chief shall be appointed "by the company."

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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 has 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 favour, had stated the provisions in the said act, so far as they related to the matter in c. 63. § 10. 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

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13 Geo. 3.

"His

Majesty, his heirs and successours, upon repre"sentation made by the court of directors of the "said united company for the time being;" and conferred no such power on the governour-general, or a majority of the council, to remove on any 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"lick 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, Esq. 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."

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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.
with regard to resignation, although the said War-
ren Hastings, as a colour to his illegal resolutions,
had affectedly introduced the word "resigned"
amongst those of " relinquished, surrendered, and

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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 governour-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 persistance therein, yet he was, nevertheless, still guilty of the illegal acts above described; and the same are great crimes and misdemeanours.

and so far as the acts of Lauchlin Macleane, Esq. 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 wave an instant and immediate claim to the chair, and 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 Lauchlin ings 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 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 Lauchlin Macleane, Esq. 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, Esq. 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 successour, 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 stan"tibus, illegal."

That the said Warren Hastings does no where himself contend, that the said resignation was not absolute, but optional, according to the true meaning and understanding of the parties in England,

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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 resignation, and his disavowal of the said Lauchlin Macleane, his agent, is not justified by any thing contained in his said letter to the court of directors, dated on the 15th of August 1777, the said Warren Hastings no where directly and positively asserting, that the said Lauchlin 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 Lauchlin 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 Lauchlin Macleane, Esquire, confirmed by Mr. Vansittart and Mr. Stewart, and relied on and confided in by the court of directors, by which the said Lauchlin Macleane appeared to be specially empowered to declare the said resignation; the words of the said instruction being as follow: "that he (Mr. Hastings) will not continue in the government of Bengal," "unless certain condi"tions therein specified can be obtained:" and the words of the said letter being as follow: "What I myself know with certainty, or can re"collect 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.

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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 con"firmed in his government," is tantamount to a declaration," that he will not continue in his go"vernment, unless those conditions can be ob"tained." 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 hand-writing, 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, Esq. 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 negociation carried on between Mr. Macleane for the benefit of Warren Hastings, Esq. 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 enquiry 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, Esq. several very large sums of money taken by him in his office of governour-general, contrary to law, and in breach of his covenants, and of his duty to the company and the publick; 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 governour-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 Lauchlin Macleane, Esq. as also to Mr. Vansittart and Mr.

Stewart, whose honours 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 interest to negociate 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.

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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 forthwith 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 Fort William did, on the motion and recommendation of Warren Hastings, Esquire, enter into a contract with Archibald Frazer, Esquire, on the 17th 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 govern

ment.

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 expence of government upon this article was encreased by these engagements to a very great amount.

That it appears, that this contract had been heid 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 governourgeneral and council, before the said agreement was entered into, that after the heavy expence, (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 "expence would be sufficient to keep the bunds up and vent their going to decay.

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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 expence 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 burthensone 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 contract; preferring the latter, because these were "to effect "a complete repair, which could hardly be con"cluded in one season, and the subsequent expence 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 burthen the company with what he must have deemed to be, for the greater part, an unnecessary expence 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 govern

ment.

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 labour to a single monopolist, did authorize the governour-general and council to give up that commodity as an article of commerce. That while the said commodity continued to be a monopoly for the benefit of government, and managed by a contractor, the contracts for providing it were subject to the company's fundamental regulation, namely, to be put up to auction, and disposed of to the best bidder; and that the company particularly ordered, that the commodity when provided should be consigned to the board of trade, who were directed to dispose thereof by publick auction.

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notwithstanding a clause had been inserted in that contract, by which it was left open to the court of directors to annul the same at the expiration of the first or second year.

That about the end of the year 1780 the said Warren Hastings, in contradiction to the order above mentioned, did take away the sale of the opium from the board of trade, though he disclaimed, at the same time, any intention of implying a censure on their management.

That in March 1781 the said Warren Hastings did grant to Steven Sullivan, son of Lawrence Sullivan, chairman of the court of directors of the East India company, a contract for the provision of opium, without advertising for proposals, and without even receiving any written proposals from him the said Sullivan; that he granted this contract for four years, and at the request of the said Sullivan did omit that clause, which was inserted in the preceding contract, and by which it was rendered liable to be determined by orders from the company; the said Warren Hastings declaring, contrary to truth, that such clause was now unnecessary, as the directors had approved the contract.

That in May 1777 the said Warren Hastings granted to John Mackenzie a contract for the provision of opium, to continue three years, and without advertising for proposals: that this transac-in tion was condemned by the court of directors,

That the said Sullivan had been but a few months Bengal when the above contract was given to him; that he was a stranger to the country, and

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