The Works of the Right Honourable Edmund Burke, Vol. 09 (of 12)

That, although the judges did decide that the office of Governor-General, held by the said Warren Hastings, was not ipso facto and instanter vacated by the arrival of the said dispatches and documents transmitted by the Court of Directors, and did consider the said consequences of the resignation as awaiting some future act or event for its complete and effectual operation, yet the said judges did not declare any opinion on the ultimate invalidity of the said acts of Lauchlan Macleane, Esquire, as not being binding on his principal, Warren Hastings, Esquire; nor did they declare any opinion that the obligation of the said resignation was not from the beginning conclusive and effectual, although its operation was, from the necessity of the case, on account of the distance between England and India, to take place only in future,—or that the said resignation made by Lauchlan Macleane, Esquire, was only an offer or proposal of a resignation to be made at some future and indefinite period, or a mere intimation of the desire of Warren Hastings, Esquire, to resign at some future and indefinite period, and that the said resignation, notwithstanding the acceptance thereof by the Court of Directors, and the regular appointment and confirmation of a successor, was still to remain optional in the said Warren Hastings, to be ratified or departed from at his future choice or pleasure; nor did the said judges pronounce, nor do any of their reasonings which accompanied their decision tend to establish it as their opinion, that even the time for ratifying and completing the said transaction was to be at the sole discretion of the said Warren Hastings; but they only delivered their opinion as aforesaid, that his said office "has not yet been vacated, and [therefore] that the actual assumption of the government by the member of the Council next in succession was [in the actual circumstances, and rebus sic stantibus] illegal."

That the said Warren Hastings does nowhere himself contend that the said resignation was not absolute, but optional, according to the true meaning and understanding of the parties in England, and so far as the acts of Lauchlan Macleane, Esquire, and the Court of Directors, were binding on him; but, on the contrary, he grounds his refusal to complete the same, not on any interpretation of the words in which the said resignation, and the other instruments aforesaid, were conceived, but rather on a disavowal (not direct, indeed, but implied) of his said agent, and of the powers under which the said agent had claimed to act in his behalf. Neither did the said Warren Hastings ground his said refusal on any objection to the particular day or period or circumstances in which the requisition of General Clavering was made, nor accompany the said refusal with any qualification in that respect, or with any intimation that he would at any future or more convenient season comply with the same,—although such an intimation might probably have induced General Clavering to waive an instant and immediate claim to the chair, and might therefore have prevented the distractions which happened, and the greater evils which impended, in consequence of the said claim of General Clavering, and the said refusal of Warren Hastings, Esquire; but the said Warren Hastings did, on the contrary, express his said refusal in such general and unqualified terms as intimated an intention to resist absolutely and altogether, both then and at any future time, the said requisition of General Clavering. And the subsequent proceedings of the said Warren Hastings do all concur in proving that such was his intention; for he did afterwards, in conformity to the advice of the judges, move a resolution in Council, "that all parties be placed in the same situation in which they stood before the receipt of the last advices from England, reserving and submitting to a decision in England the respective claims that each party may conceive they have a right to make, but not acting upon those claims till such decision shall arrive in Bengal": thereby clearly and explicitly declaring that it was not his intention to surrender the government until such decision should arrive in Bengal, which could not be expected in less time than a year and a half after the date of the said resolution; and thereby clearly and explicitly declaring that he did not consider his resignation as binding for the present. And the said intention was manifested, if possible, still more directly and expressly in a letter written by the said Warren Hastings to the Court of Directors, dated the 15th of August, 1777, being almost two months after the receipt of the said dispatches, in which the said Warren Hastings declares that "he did not hold himself bound by the notification made by Mr. Macleane, nor by any of the acts consequent of it."

That, such appearing to have been the intention of the said Warren Hastings, General Clavering was justified in immediately assuming the government, without waiting for any future act of the said Warren Hastings for the actual surrender of the said government, none such being likely to happen; and Philip Francis, Esquire, was justified in supporting General Clavering in the same on the soundest principles of justice, and on a maxim received in courts of equity, namely, that no one shall avail himself of his own wrong,—and that, if any one refuse or neglect to perform that which he is bound to do, the rights of others shall not be prejudiced thereby, but such acts shall be deemed and reputed to have been actually performed, and all the consequences shall be enforced which would have followed from such actual performance. And therefore the resolutions moved and voted in Council by the said Warren Hastings, declaring the offices of General Clavering to be vacant, were not only illegal, inasmuch as the said Warren Hastings had no authority to warrant such a declaration, even on the supposition of the acts of General Clavering being contrary to law, but the said resolutions were further highly culpable and criminal, inasmuch as the said acts done by General Clavering, which were made the pretence of that proceeding, were strictly regular and legal.

That the refusal of the said Warren Hastings to ratify the said resignation, and his disavowal of the said Lauchlan Macleane, his agent, is not justified by anything contained in his said letter to the Court of Directors, dated on the 15th of August, 1777,—the said Warren Hastings nowhere directly and positively asserting that the said Lauchlan Macleane was not his agent, and had not both full and general powers, and even particular instructions for this very act, although the said Warren Hastings uses many indirect and circuitous, but insufficient and inapplicable, insinuations to that effect. And the said letter does, on the contrary, contain a clear and express avowal that the said Lauchlan Macleane was his confidential agent, and that in that capacity he acted throughout, and particularly in this special matter, with zeal and fidelity. And the said letter does further admit in effect the instructions produced by the said Lauchlan Macleane, Esquire, confirmed by Mr. Vansittart and Mr. Stewart, and relied on and confided in by the Court of Directors, by which the said Lauchlan Macleane appeared to be specially empowered to declare the said resignation, the words of the said instruction being as follows: "That he [Mr. Hastings] will not continue in the government of Bengal, unless certain conditions therein specified can be obtained"; and the words of the said letter being as follows: "What I myself know with certainty, or can recollect at this distance of time, concerning the powers and instructions which were given to Messieurs Macleane and Graham, when they undertook to be my agents in England, I will circumstantially relate. I am in possession of two papers which were presented to those gentlemen at the time of their departure from Bengal, one of which comprises four short propositions which I required as the conditions of my being confirmed in this government." And although the said Warren Hastings does here artfully somewhat change the words of his written instructions (and which having in his possession he might as easily have given verbatim) to other words which may appear less explicit, yet they are in fact capable of only the same meaning: for, as, at the time of giving the said instructions to his agents, he was in full possession of his office, he could want no confirmation therein except his own; and, in such circumstances, "to require certain things, as the conditions of his being confirmed in his government," is tantamount to a declaration "that he will not continue in his government, unless those conditions can be obtained." And the said attempt at prevarication can serve, its author the less, as either both sentences have one and the same meaning, or, if their meaning be different, the original instructions in his own handwriting, or, in other words, the thing itself, must be preferred as evidence of its contents to a loose statement of its purport, founded, perhaps, on a loose recollection of it at a great distance of time.

That the said refusal of Warren Hastings, Esquire, was a breach of faith with the Court of Directors and his Majesty's ministers in England; as the said resignation was not merely a voluntary offer without any consideration, and therefore subject to be recalled or retracted at the pleasure of the said Warren Hastings, but ought rather to be considered as having been the result of a negotiation carried on between Mr. Macleane for the benefit of Warren Hastings, Esquire, on the one hand, and by the Court of Directors for the interests of the Company on the other: which view of the transaction will appear the more probable, when it is considered that at the time of the said resignation a strict inquiry had been carrying on by the Court of Directors into the conduct of the said Warren Hastings, and the solicitor and counsel to the Company, and other eminent counsel, had given it as their opinions, on cases stated to them, that there were grounds for suing the said Warren Hastings in the courts of law and equity, and that the Company would be entitled to recover in the said suits against Warren Hastings, Esquire, several very large sums of money taken by him in his office of Governor-General, contrary to law, and in breach of his covenants, and of his duty to the Company and the public; and the Court of Directors had also come to various severe resolutions of censure against the said Warren Hastings, and amongst others to a resolution to recall the said Warren Hastings, and remove him from his office of Governor-General, to answer for sundry great crimes and delinquencies by him committed in his said office. And on these accounts it appears probable that the said resignation was tendered and accepted as a consideration for some beneficial concessions made in consequence thereof to the said Warren Hastings in his said dangerous and desperate condition.

And the said refusal was also an act of great disrespect to the Court of Directors and to his Majesty, and, by rendering abortive their said measures, solemnly and deliberately taken, and ratified and confirmed by his Majesty, tended to bring the authority of the Court of Directors and of his Majesty into contempt.

And the said refusal was an injury to General Clavering.

And was also, or might have been, a great injury to Edward Wheler, Esquire.

And was an act of signal treachery to Lauchlan Macleane, Esquire, as also to Mr. Vansittart and Mr. Stewart, whose honors and veracity were thereby brought into question, doubt, and suspicion.

And the said refusal was prejudicial to the affairs of the servants of the Company in India, by shaking the confidence to be placed in their agents by those persons with whom it might be for their interests to negotiate on any matter of importance, and by thus subjecting the communication of persons abroad with those at home to difficulties not known before.

X.—SURGEON-GENERAL'S CONTRACT

That the said Warren Hastings, in the year 1777, did grant to the Surgeon-General a contract for three years, for defraying every kind of hospital and medicinal expense,—not only in breach of the general orders of the Court of Directors with respect to the duration of contracts, but in direct opposition to a particular order of the Court of Directors, of the 30th of March, 1774, when they directed "that the Surgeon should not be permitted to enjoy any emolument arising from his being concerned in dieting the patients, and that the occupations of surgeon and contractor should be forthwith separated." That the said contract was in itself highly improper, and inconsistent with the good of the service; as it afforded the greatest temptation to abuse, and established a pecuniary interest in the Surgeon-General, contrary to the duties of his station and profession.

XI.—CONTRACTS FOR POOLBUNDY REPAIRS

That the Governor-General and Council at Fort William did, on the motion and recommendation of Warren Hastings, Esquire, enter into a contract with Archibald Frazer, Esquire, on the 16th of April, 1778, for the repairs of the pools and banks in the province of Burdwan, for two years, at the rate of 120,000 sicca rupees for the first year, and 80,000 rupees for the second year.

That on the 19th of December, 1778, the said Warren Hastings did further persuade the Supreme Council to prolong the term of the above contract with Archibald Frazer for the space of three years more on the same conditions, namely, the payment of 80,000 sicca rupees for each year: to which was added a permission to Mr. Frazer to make dobunds, or special repairs, whenever he should judge them necessary, at the charge of government.

That the said contracts, both in the manner of their acceptance by the Supreme Council, without having previously advertised for proposals, and in the extent of their duration, were made in direct violation of the special orders of the Court of Directors.

That, so far from any advantage having been obtained for the Company in the terms of these contracts, in consideration of the length of time for which they were to continue, the expense of government upon this article was increased by these engagements to a very great amount.

That it appears that this contract had been held for some years before by the Rajah of Burdwan at the rate of 25,000 rupees per annum.

That the superintendent of poolbundy repairs, after an accurate and diligent survey of the bunds and pools, and the Provincial Council of Burdwan, upon the best information they could procure, had delivered it as their opinion to the Governor-General and Council, before the said agreement was entered into, that, after the heavy expense stated in Mr. Kinlock's estimate, viz., 119,405 sicca rupees, if disbursed as they recommended, the charge in future seasons would be greatly reduced, and, after one thorough and effectual repair, they conceived a small annual expense would be sufficient to keep the bunds up and prevent their going to decay.

That, whatever extraordinary and unusual damages the pools and bunds might have sustained, either from the neglect of the Rajah's officers, or from the violence of the then late rains, and the torrents thereby occasioned, to justify the expense of the first year, yet, as they were all considered and included in the estimate for that year, there could be no pretence for allowing and continuing so large and burdensome a payment as 80,000 rupees per annum for the four succeeding years.

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

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

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

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

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

XII.—CONTRACTS FOR OPIUM

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

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 public auction.

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 transaction was condemned by the Court of Directors, 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 Stephen Sulivan, son of Lawrence Sulivan, 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 Sulivan; that he granted this contract for four years, and at the request of the said Sulivan 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 the said Sulivan had been but a few months in Bengal when the above contract was given to him; that he was a stranger to the country, and to all the local commerce thereof, and therefore unqualified for the management of such a concern; and that the said Sulivan, instead of executing the contract himself, did, shortly after obtaining the same, assign it over to John Benn and others, and in consideration of such assignment did receive from the said Benn a great sum of money.

That from the preceding facts, as well as from sundry other circumstances of restrictions taken off (particularly by abolishing the office of inspector into the quality of the opium) and of beneficial clauses introduced, it appears that the said Warren Hastings gave this contract to the said Stephen Sulivan in contradiction to the orders of the Court of Directors, and without any regard to the interests of the India Company, for the sole purpose of creating an instant fortune for the said Sulivan at the expense of the India Company, without any claim of service or pretence of merit on his part, and without any apparent motive whatever, except that of securing or rewarding the attachment and support of his father, Lawrence Sulivan, a person of great authority and influence in the direction of the Company's affairs, and notoriously attached to and connected with the said Warren Hastings.

That the said Stephen Sulivan neither possessed nor pretended to possess any skill in the business of his contract; that he exerted no industry, nor showed or could show any exactness, in the performance of it, since he immediately sold the contract for a sum of money to another person, (for the sole purpose of which sale it must be presumed the same was given,) by which person another profit was to be made; and by that person the same was again sold to a third, by whom a third profit was to be made.

That the said Warren Hastings, at the very time when he engaged the Company in a contract for engrossing the whole of the opium produced in Bengal and Bahar in the ensuing four years on terms of such exorbitant profit to the contractor, affirmed, that "there was little prospect of selling the opium in Bengal at a reasonable price, and that it was but natural to suppose that the price of opium would fall, from the demand being lessened"; that in a letter dated the 5th of May, 1781, he informed the Directors, "that, owing to the indifferent state of the markets last season to the Eastward, and the very enhanced rates of insurance which the war had occasioned, they had not been able to dispose of the opium of the present year to so great an advantage as they expected, and that more than one half of it remained still in their warehouses." That the said Warren Hastings was guilty of a manifest breach of trust to his constituents and his employers in monopolizing, for their pretended use, an article of commerce for which he declared no purchasers had offered, and that there was little prospect of any offering, and the price of which, he said, it was but natural to suppose would fall.

That the said Warren Hastings, having, by his own act, loaded the Company with a commodity for which, either in the ordinary and regular course of public auction, or even by private contract, there was, as he affirmed, no sale, did, under pretence of finding a market for the same, engage the Company in an enterprise of great and certain expense, subject to a manifest risk, and full of disgrace to the East India Company, not only in their political character, as a great sovereign power in India, but in their commercial character, as an eminent and respectable body of merchants; and that the execution of this enterprise was accompanied with sundry other engagements with other persons, in all of which the Company's interest was constantly sacrificed to that of individuals favored by the said Warren Hastings.

That the said Warren Hastings first engaged in a scheme to export one thousand four hundred and sixty chests of opium, on the Company's account, on board a ship belonging to Cudbert Thornhill, half of which was to be disposed of in a coasting voyage, and the remainder in Canton. That, besides the freight and commission payable to the said Thornhill on this adventure, twelve pieces of cannon belonging to the Company were lent for arming the ship; though his original proposal was, that the ship should be armed at his expense. That this part of the adventure, depending for its success on a prudent and fortunate management of various sales and resales in the course of a circuitous voyage, and being exposed to such risk both of sea and enemy that all private traders had declined to be concerned in it, was particularly unfit for a great trading company, and could not be undertaken on their account with any rational prospect of advantage.

That the said Warren Hastings soon after engaged in another scheme for exporting two thousand chests of opium directly to China on the Company's account, and for that purpose accepted of an offer made by Henry Watson, the Company's chief engineer, to convey the same in a vessel of his own, and to deliver it to the Company's supra-cargoes. That, after the offer of the said Henry Watson had been accepted, a letter from him was produced at the board, in which he declared that he was unable to equip the ship with a proper number of cannon, and requested that he might be furnished with thirty-six guns from the Company's stores at Madras; with which request the board complied.

That it appears that George Williamson, the Company's auctioneer at Calcutta, having complained that by this mode of exporting the opium, which used to be sold by public auction, he lost his commission as auctioneer, the board allowed him to draw a commission of one per cent on all the opium which had been or was to be exported. That it appears that the contractor for opium (whose proper duties and emoluments as contractor ended with the delivery of the opium) was also allowed to draw a commission on the opium then shipping on the Company's account; but for what reason, or on what pretence, does not appear.

That the said Warren Hastings, in order to pay the said Stephen Sulivan in advance for the opium furnished or to be furnished by him in the first year of his contract, did borrow the sum of twenty lacs of rupees at eight per cent, or two hundred thousand pounds sterling, to be repaid by drafts to be drawn on the Company by their supra-cargoes in China, provided the opium consigned to them should arrive safe; but that, if the adventure failed, whether by the loss of the ships or otherwise, the subscribers to the above loan were to be repaid their capital and interest out of the Company's treasury in Bengal.

That the said Warren Hastings, having in this manner purchased a commodity for which he said there was no sale, and paid for it with money which he was obliged to borrow at a high interest, was still more criminal in his attempt, or pretended plan, to introduce it clandestinely into China. That the importation of opium into China is forbidden by the Chinese government; that the opium, on seizure, is burnt, the vessel that imports it confiscated, and the Chinese in whose possession it may be found for sale punished with death.

That the Governor-General and Council were well aware of the existence of these prohibitions and penalties, and did therefore inform the supra-cargoes in China, that the ship belonging to the said Henry Watson would enter the river at China as an armed ship, and would not be reported as bearing a cargo of opium, that being a contraband trade.

That, of the above two ships, the first, belonging to Cudbert Thornhill, was taken by the French; and that the second, arriving in China, did occasion much embarrassment and distress to the Company's supra-cargoes there, who had not been previously consulted on the formation of the plan, and were exposed to great difficulty and hazard in the execution of their part of it. That the ship was delayed, at a demurrage of an hundred dollars a day, for upwards of three months, waiting in vain for a better market. The factory estimate the loss to the Company, including port charges, demurrage, and factory charges allowed the captain, at sixty-nine thousand nine hundred and ninety-three dollars, or about twenty thousand pounds sterling.

That the Company's factory at China, after stating the foregoing facts to the Court of Directors, conclude with the following general observation thereon. "On a review of these circumstances, with the extravagant and unusual terms of the freight, demurrage, factory charges, &c., &c., we cannot help being of opinion that private considerations have been suffered to interfere too much for any benefit that may have been intended to the Honorable Company. We hope for the Honorable Court's approbation of our conduct in this affair. The novelty and nature of the consignments have been the source of much trouble and anxiety, and, though we wished to have had it in our power to do more, we may truly say we have exceeded our expectations."

That every part of this transaction, from the monopoly with which it commenced, to the contraband dealing with which it concluded, criminates the said Warren Hastings with wilful disobedience of orders and a continued breach of trust; that every step taken in it was attended with heavy loss to the Company, and with a sacrifice of their interest to that of individuals; and that, if finally a profit had resulted to the Company from such a transaction, no profit attending it could compensate for the probable risk to which their trade in China was thereby exposed, or for the certain dishonor and consequent distrust which the East India Company must incur in the eyes of the Chinese government by being engaged in a low, clandestine traffic, prohibited by the laws of the country.

XIII.—APPOINTMENT OF R.J. SULIVAN

That in the month of February, 1781, Mr. Richard Joseph Sulivan, Secretary to the Select Committee at Fort St. George, applied to them for leave to proceed to Calcutta on his private affairs. That, being the confidential secretary to the Select Committee at Fort St. George, and consequently possessed of all the views and secrets of the Company, as far as they related to that government, he went privately into the service of the Nabob of Arcot, and, under the pretence of proceeding to Calcutta on his private business, undertook a commission from the said Nabob to the Governor-General and Council, to negotiate with them in favor of certain projects of the said Nabob which had been reprobated by the Company.

That the said Sulivan was soon after appointed back again by the said Warren Hastings to the office of Resident at the Durbar of the said Nabob of Arcot. That it was a high crime and misdemeanor in the said Hastings to encourage so dangerous an example in the Company's service, and to interfere unnecessarily with the government of Madras in the discharge of the duties peculiarly ascribed to them by the practice and orders of the Company, for the purpose of appointing to a great and confidential situation a man who had so recently committed a breach of trust to his employers.

That the Court of Directors, in their letter to Bengal, dated the 12th of July, 1782, and received there on the 18th of February, 1783, did condemn and revoke the said appointment. That the said Directors, in theirs to Fort St. George, dated the 28th of August, 1782, and received there the 31st of January, 1783, did highly condemn the conduct of the said Sulivan, and, in order to deter their servants from practices of the same kind, did dismiss him from their service.

That the said Hastings, knowing that the said Sulivan's appointment had been condemned and revoked by the Court of Directors, and pretending that on the 15th of March, 1783, he did not know that the said Sulivan was dismissed from the Company's service, though that fact was known at Madras on the 31st of the preceding January, did recommend the said Sulivan to be ambassador at the court of Nizam Ali Khân, Subahdar of the Deccan, in defiance of the authority and orders of the Court of Directors.