Part 24

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.

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 500,000l. 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.

Cheyt Sing had given him to understand through Mr. Markham, that he was aware of the design of suspending him, and of placing his government in the hands of a Naib whom he greatly dreaded. This person was called Ussaun Sing; he was a remote relation of the family, and an object of their peculiar suspicion and terror. The moment Cheyt Sing was arrested, he found that his prophetic soul spoke truly; for Mr. Hastings actually appointed this very man to be his master. And who was this man? We are told by Mr. Markham, in his evidence here, that he was a man who had dishonored his family,--he was the disgrace of his house,--that he was a person who could not be trusted; and Mr. Hastings, in giving Mr. Markham full power afterwards to appoint Naibs, expressly excepted this Ussaun Sing from all trust whatever, as a person totally unworthy of it. Yet this Ussaun Sing, the disgrace and calamity of his family, an incestuous adulterer, and a supposed issue of a guilty connection, was declared Naib. Yes, my Lords, this degraded, this wicked and flagitious character, the Rajah's avowed enemy, was, in order to heighten the Rajah's disgrace, to embitter his ruin, to make destruction itself dishonorable as well as destructive, appointed this [his?] Naib. Thus, when Mr. Hastings had imprisoned the Rajah, in the face of his subjects, and in the face of all India, without fixing any term for the duration of his imprisonment, he delivered up the country to a man whom he knew to be utterly undeserving, a man whom he kept in view for the purpose of frightening the Rajah, and whom he was obliged to depose on account of his misconduct almost as soon as he had named him, and to exclude specially from all kind of trust. We have heard of much tyranny, avarice, and insult in the world; but such an instance of tyranny, avarice, and insult combined has never before been exhibited.

We are now come to the last scene of this flagitious transaction. When Mr. Hastings imprisoned the Rajah, he did not renew his demand for the 500,000l., but he exhibited a regular charge of various pretended delinquencies against him, digested into heads, and he called on him, in a dilatory, irregular way of proceeding, for an answer. The man, under every difficulty and every distress, gave an answer to every particular of the charge, as exact and punctilious as could have been made to articles of impeachment in this House.

I must here request your Lordships to consider the order of these proceedings. Mr. Hastings, having determined upon the utter ruin and destruction of this unfortunate prince, endeavored, by the arrest of his person, by a contemptuous disregard to his submissive applications, by the appointment of a deputy who was personally odious to him, and by the terror of still greater insults, he endeavored, I say, to goad him on to the commission of some acts of resistance sufficient to give a color of justice to that last dreadful extremity to which he had resolved to carry his malignant rapacity. Failing in this wicked project, and studiously avoiding the declaration of any terms upon which the Rajah might redeem himself from these violent proceedings, he next declared his intention of seizing his forts, the depository of his victim's honor, and of the means of his subsistence. He required him to deliver up his accounts and accountants, together with all persons who were acquainted with the particulars of his effects and treasures, for the purpose of transferring those effects to such persons as he (Mr. Hastings) chose to nominate.

It was at this crisis of aggravated insult and brutality that the indignation which these proceedings had occasioned in the breasts of the Rajah's subjects burst out into an open flame. The Rajah had retired to the last refuge of the afflicted, to offer up prayers to his God and our God, when a vile chubdar, or tipstaff, came to interrupt and insult him. His alarmed and loyal subjects felt for a beloved sovereign that deep interest which we should all feel, if our sovereign were so treated. What man with a spark of loyalty in his breast, what man regardful of the honor of his country, when he saw his sovereign imprisoned, and so notorious a wretch appointed his deputy, could be a patient witness of such wrongs? The subjects of this unfortunate prince did what we should have done,--what all who love their country, who love their liberty, who love their laws, who love their property, who love their sovereign, would have done on such an occasion. They looked upon him as their sovereign, although degraded. They were unacquainted with any authority superior to his, and the phantom of tyranny which performed these oppressive acts was unaccompanied by that force which justifies submission by affording the plea of necessity. An unseen tyrant and four miserable companies of sepoys executed all the horrible things that we have mentioned. The spirit of the Rajah's subjects was roused by their wrongs, and encouraged by the contemptible weakness of their oppressors. The whole country rose up in rebellion, and surely in justifiable rebellion. Every writer on the Law of Nations, every man that has written, thought, or felt upon the affairs of government, must write, know, think, and feel, that a people so cruelly scourged and oppressed, both in the person of their chief and in their own persons, were justified in their resistance. They were roused to vengeance, and a short, but most bloody war followed.

We charge the prisoner at your bar with all the consequences of this war. We charge him with the murder of our sepoys, whom he sent unarmed to such a dangerous enterprise. We charge him with the blood of every man that was shed in that place; and we call him, as we have called him, a tyrant, an oppressor, and a murderer. We call him murderer in the largest and fullest sense of the word; because he was the cause of the murder of our English officers and sepoys, whom he kept unarmed, and unacquainted with the danger to which they would be exposed by the violence of his transactions. He sacrificed to his own nefarious views every one of those lives, as well as the lives of the innocent natives of Benares, whom he designedly drove to resistance by the weakness of the force opposed to them, after inciting them by tyranny and insult to that display of affection towards their sovereign which is the duty of all good subjects.

My Lords, these are the iniquities which we have charged upon the prisoner at your bar; and I will next call your Lordships' attention to the manner in which these iniquities have been pretended to be justified. You will perceive a great difference in the manner in which this prisoner is tried, and of which he so much complains, and the manner in which he dealt with the unfortunate object of his oppression. The latter thus openly appeals to his accuser. "You are," says he, "upon the spot. It is happy for me that you are so. You can now inquire into my conduct." Did Mr. Hastings so inquire? No, my Lords, we have not a word of any inquiry; he even found fresh matter of charge in the answer of the Rajah, although, if there is any fault in this answer, it is its extremely humble and submissive tone. If there was anything faulty in his manner, it was his extreme humility and submission. It is plain he would have almost submitted to anything. He offered, in fact, 220,000l. to redeem himself from greater suffering. Surely no man going into rebellion would offer 220,000l. of the treasure which would be so essential to his success; nor would any government that was really apprehensive of rebellion call upon the suspected person to arm and discipline two thousand horse. My Lords, it is evident no such apprehensions were entertained; nor was any such charge made until punishment had commenced. A vague accusation was then brought forward, which was answered by a clear and a natural defence, denying some parts of the charge, evading and apologizing for others, and desiring the whole to be inquired into. To this request the answer of the Governor-General was, "That won't do; you shall have no inquiries." And why? "Because I have arbitrary power, you have no rights, and I can and will punish you without inquiry." I admit, that, if his will is the law, he may take [make?] the charge before punishment or the punishment before the charge, or he may punish without making any charge. If his will is the law, all I have been saying amounts to nothing. But I have endeavored to let your Lordships see that in no country upon the earth is the will of a despot law. It may produce wicked, flagitious, tyrannical acts; but in no country is it law.

The duty of a sovereign in cases of rebellion, as laid down in the Hedaya, agrees with the general practice in India. It was usual, except in cases of notorious injustice and oppression, whenever a rebellion or a suspicion of a rebellion existed, to admonish the rebellious party and persuade him to return to his duty. Causes of complaint were removed and misunderstandings explained, and, to save the effusion of blood, severe measures were not adopted until they were rendered indispensable. This wise and provident law is or ought to be the law in all countries: it was in fact the law in that country, but Mr. Hastings did not attend to it. His unfortunate victim was goaded to revolt and driven from his subjects, although he endeavored by message after message to reconcile this cruel tyrant to him. He is told in reply, "You have shed the blood of Englishmen, and I will never be reconciled to you." Your Lordships will observe that the reason he gives for such an infernal determination (for it cannot be justly qualified by any other word) is of a nature to make tyranny the very foundation of our government. I do not say here upon what occasion people may or may not resist; but surely, if ever there was an occasion on which people, from love to their sovereign and regard to their country, might take up arms, it was this. They saw a tyrant violent in his demands and weak in his power. They saw their prince imprisoned and insulted, after he had made every offer of submission, and had laid his turban three times in the lap of his oppressor. They saw him, instead of availing himself of the means he possessed of cutting off his adversary, (for the life of Mr. Hastings was entirely in his power,) betaking himself to flight. They then thronged round him, took up arms in his defence, and shed the blood of some of his insulters. Is this resistance, so excited, so provoked, a plea for irreconcilable vengeance?

I must beg pardon for having omitted to lay before your Lordships in its proper place a most extraordinary paper, which will show you in what manner judicial inquiries are conducted, upon what grounds charges are made, by what sort of evidence they are supported, and, in short, to what perils the lives and fortunes of men are subjected in that country. This paper is in the printed Minutes, page 1608. It was given in agreeably to the retrograde order which they have established in their judicial proceedings. It was produced to prove the truth of a charge of rebellion which was made some months before the paper in evidence was known to the accuser.

"To the Honorable Warren Hastings.

"Sir,--About the month of November last, I communicated to Mr. Markham the substance of a conversation said to have passed between Rajah Cheyt Sing and Saadut Ali, and which was reported to me by a person in whom I had some confidence. The mode of communicating this intelligence to you I left entirely to Mr. Markham. In this conversation, which was private, the Rajah and Saadut Ali were said to have talked of Hyder Ali's victory over Colonel Baillie's detachment, to have agreed that they ought to seize this opportunity of consulting their own interest, and to have determined to watch the success of Hyder's arms. Some days after this conversation was said to have happened, I was informed by the same person that the Rajah had received a message from one of the Begums at Fyzabad, (I think it was from Sujah ul Dowlah's widow,) advising him not to comply with the demands of government, and encouraging him to expect support in case of his resisting. This also, I believe, I communicated to Mr. Markham; but not being perfectly certain, I now think it my duty to remove the possibility of your remaining unacquainted with a circumstance which may not be unconnected with the present conduct of the Rajah."

Here, then, is evidence of evidence given to Mr. Markham by Mr. Balfour, from Lucknow, in the month of November, 1781, long after the transaction at Benares. But what was this evidence? "I communicated," he says, "the substance of a conversation said to have passed." Observe, said: not a conversation that had passed to his knowledge or recollection, but what his informant said had passed. He adds, this conversation was reported to him by a person whom he won't name, but in whom, he says, he had some confidence. This anonymous person, in whom he had put some confidence, was not himself present at the conversation; he only reports to him that it was said by somebody else that such a conversation had taken place. This conversation, which somebody told Colonel Balfour he had heard was said by somebody to have taken place, if true, related to matters of great importance; still the mode of its communication was left to Mr. Markham, and that gentleman did not bring it forward till some months after. Colonel Balfour proceeds to say,--"Some days after this conversation was said to have happened," (your Lordships will observe it is always, "was said to have happened,") "I was informed by the same person that the Rajah had received a message from one of the Begums at Fyzabad, (I think it was from Sujah ul Dowlah's widow,) advising him not to comply with the demands of government, and encouraging him to expect support in case of his resisting." He next adds,--"This also, I believe," (observe, he says he is not quite sure of it,) "I communicated to Mr. Markham; but not being perfectly certain," (of a matter the immediate knowledge of which, if true, was of the highest importance to his country,) "I now think it my duty to remove the possibility of your remaining unacquainted with, a circumstance which may not be unconnected with the present conduct of the Rajah."

Here is a man that comes with information long after the fact deposed to, and, after having left to another the communication of his intelligence to the proper authority, that other neglects the matter. No letter of Mr. Markham's appears, communicating any such conversation to Mr. Hastings: and, indeed, why he did not do so must appear very obvious to your Lordships; for a more contemptible, ridiculous, and absurd story never was invented. Does Mr. Balfour come forward and tell him who his informant was? No. Does he say, "He was an informant whom I dare not name, upon account of his great consequence, and the great confidence I had in him"? No. He only says slightly, "I have some confidence in him." It is upon this evidence of a reporter of what another is said to have said, that Mr. Hastings and his Council rely for proof, and have thought proper to charge the Rajah, with having conceived rebellious designs soon after the time when Mr. Hastings had declared his belief that no such designs had been formed.

Mr. Hastings has done with his charge of rebellion what he did with his declaration of arbitrary power: after he had vomited it up in one place, he returns to it in another. He here declares (after he had recorded his belief that no rebellion was ever intended) that Mr. Markham was in possession of information which he might have believed, if it had been communicated to him. Good heavens! when you review all these circumstances, and consider the principles upon which this man was tried and punished, what must you think of the miserable situation of persons of the highest rank in that country, under the government of men who are disposed to disgrace and ruin them in this iniquitous manner!