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

That the said conduct of the Nabob Fyzoola Khân was communicated by the Company's servants both to each other and to their employers, with expressions of "pleasure" and "particular satisfaction," as an event "even surpassing their expectations"; that the Governor-General, Warren Hastings, was officially requested to convoy "the thanks of the board"; and that, not satisfied with the bare discharge of his duty under the said request, he, the said Hastings, did, on the 8th of January, 1779, write to Fyzoola, "that, in his own name," as well as "that of the board, he [the said Hastings] returned him the warmest thanks for this instance of his faithful attachment to the Company and the English nation."

IV.[24 - Sic orig.] That by the strong expressions above recited the said Warren Hastings did deliberately and emphatically add his own particular confirmation to the general testimony of the Nabob Fyzoola Khân's meritorious fidelity, and of his consequent claim on the generosity, no less than the justice, of the British government.

PART V.

DEMAND OF FIVE THOUSAND HORSE

I. That, notwithstanding his own private honor thus deeply engaged, notwithstanding the public justice and generosity of the Company and the nation thus solemnly committed, disregarding the plain import and positive terms of the guarantied treaty, the Governor-General, Warren Hastings aforesaid, in November, 1780, while a body of Fyzoola Khân's cavalry, voluntarily granted, were still serving under a British officer, did recommend to the Vizier "to require from Fyzoola Khân the quota of troops stipulated by treaty to be furnished by the latter for his [the Vizier's] service, being FIVE THOUSAND HORSE," though, as the Vizier did not march in person, he was not, under any construction of the treaty, entitled by stipulation to more than "two or three thousand troops," horse and foot, "according to the ability of Fyzoola Khân"; and that, whereas the said Warren Hastings would have been guilty of very criminal perfidy, if he had simply neglected to interfere as a guaranty against a demand thus plainly contrary to the faith of treaty, so he aggravated the guilt of his perfidy in the most atrocious degree by being himself the first mover and instigator of that injustice, which he was bound by so many ties on himself, the Company, and the nation, not only not to promote, but, by every exertion of authority, influence, and power, to control, to divert, or to resist.

II. That the answer of Fyzoola Khân to the Vizier did represent, with many expressions of deference, duty, and allegiance, that the whole force allowed him was but "five thousand men," and that "these consisted of two thousand horse and three thousand foot; which," he adds, "in consequence of our intimate connection, are equally yours and the Company's": though he does subsequently intimate, that "the three thousand foot are for the management of the concerns of his jaghire, and without them the collections can never be made in time."

That, on the communication of the said answer to the Governor-General, Warren Hastings, he, the said Hastings, (who, as the Council now consisted only of himself and Edward Wheler, Esquire, "united in his own person all the powers of government,") was not induced to relax from his unjust purpose, but did proceed with new violence to record, that "the Nabob Fyzoola Khân had evaded the performance of his part of the treaty between the late Nabob Sujah ul Dowlah and him, to which the Honorable Company were guaranties, and upon which he was lately summoned to furnish the stipulated number of troops, which he is obliged to furnish on the condition by which he holds the jaghire granted to him."

That, by the vague and indefinite term of evasion, the said Warren Hastings did introduce a loose and arbitrary principle of interpreting formal engagements, which ought to be regarded, more especially by guaranties, ill a sense the most literally scrupulous and precise.

That he charged with such evasion a moderate, humble, and submissive representation on a point which would have warranted a peremptory refusal and a positive remonstrance; and that in consequence of the said imputed evasion he indicated a disposition to attach such a forfeiture as in justice could only have followed from a gross breach of treaty,—though the said Hastings did not then pretend any actual infringement even of the least among the conditions to which, in the name of the Company, he, the said Hastings, was the executive guaranty.

III. That, however "the number of troops stipulated by treaty may have been understood," at the period of the original demand, "to be five thousand horse," yet the said Warren Hastings, at the time when he recorded the supposed evasion of Fyzoola Khân's answer to the said demand, could not be unacquainted with the express words of the stipulation, as a letter of the Vizier, inserted in the same Consultation, refers the Governor-General to inclosed copies "of all engagements entered into by the late Vizier and by himself [the reigning Vizier] with Fyzoola Khân," and that the treaty itself, therefore, was at the very moment before the said Warren Hastings: which treaty (as the said Hastings observed with respect to another treaty, in the case of another person) "most assuredly does not contain a syllable to justify his conduct; but, by the unexampled latitude which he assumes in his constructions, he may, if he pleases, extort this or any other meaning from any part of it."[25 - Observations on Mr. Bristow's Defence.]

IV. That the Vizier himself appears by no means to have been persuaded of his own right to five thousand horse under the treaty,—since, in his correspondence on the subject, he, the Vizier, nowhere mentions the treaty as the ground of his demand, except where he is recapitulating to the Governor-General, Warren Hastings, the substance of his, the said Hastings's, own letters; on the contrary, the Vizier hints his apprehensions lest Fyzoola Khân should appeal to the treaty against the demand, as a breach thereof,—in which case, he, the Vizier, informs the said Hastings of the projected reply. "Should Fyzoola Khân" (says the Vizier) "mention anything of the tenor of the treaty, the first breach of it has been committed by him, in keeping up more men than allowed of by the treaty: I have accordingly sent a person to settle that point also. In case he should mention to me anything respecting the treaty, I will then reproach him with having kept up too many troops, and will oblige him to send the five thousand horse": thereby clearly intimating, that, as a remonstrance against the demand as a breach of treaty could only be answered by charging a prior breach of treaty on Fyzoola Khân, so by annulling the whole treaty to reduce the question to a mere question of force, and thus "oblige Fyzoola Khân to send the five thousand horse": "for," (continues the Vizier,) "if, when the Company's affairs, on which my honor depends, require it, Fyzoola Khân will not lend his assistance, what USE is there to continue the country to him?"

That the Vizier actually did make his application to Fyzoola Khân for the five thousand horse, not as for an aid to which he had a just claim, but as for something over and above the obligations of the treaty, something "that would give increase to their friendship and satisfaction to the Nabob Governor," (meaning the said Hastings,) whose directions he represents as the motive "of his call for the five thousand horse to be employed," not in his, the Vizier's, "but in the Company's service."

And that the aforesaid Warren Hastings did, therefore, in recording the answer of Fyzoola Khân as an evasion of treaty, act in notorious contradiction not only to that which ought to have been the fair construction of the said treaty, but to that which he, the said Hastings, must have known to be the Vizier's own interpretation of the same, disposed as the Vizier was "to reproach Fyzoola Khân with breach of treaty," and to "send up persons who should settle points with him."

V. That the said Warren Hastings, not thinking himself justified, on the mere plea of an evasion, to push forward his proceedings to that extremity which he seems already to have made his scope and object, and seeking some better color for his unjust and violent purposes, did further move, that commissioners should be sent from the Vizier and the Company to Fyzoola Khân, to insist on a clause of a treaty which nowhere appears, being essentially different from the treaty of Lall-Dang, though not in the part on which the requisition is founded; and the said Hastings did then, in a style unusually imperative, proceed as follows.

"Demand immediate delivery of three thousand cavalry; and if he should evade or refuse compliance, that the deputies shall deliver him a formal protest against him for breach of treaty, and return, making this report to the Vizier, which Mr. Middleton is to transmit to the board."

VI. That the said motion of the Governor-General, Hastings, was ordered accordingly,—the Council, as already has been herein related, consisting but of two members, and the said Hastings consequently "uniting in his own person all the powers of government."

VII. That, when the said Hastings ordered the said demand for three thousand cavalry, he, the said Hastings, well knew that a compliance therewith, on the part of the Nabob Fyzoola Khân, was utterly impossible: for he, the said Hastings, had at the very moment before him a letter of Fyzoola Khân, stating, that he, Fyzoola Khân, had "but two thousand cavalry" altogether; which letter is entered on the records of the Company, in the same Consultation, immediately preceding the Governor-General's minute. That the said Hastings, therefore, knew that the only possible consequence of the aforesaid demand necessarily and inevitably must be a protest for a breach of treaty; and the Court of Directors did not hesitate to declare that the said demand "carried the appearance of a determination to create a pretext for depriving him [Fyzoola Khân] of his jaghire entirely, or to leave him at the mercy of the Vizier."

VIII. That Richard Johnson, Esquire, Assistant Resident at Oude, was, agreeably to the afore-mentioned order of Council, deputed commissioner from Mr. Middleton and the Vizier to Fyzoola Khân; but that he did early give the most indecent proofs of glaring partiality, to the prejudice of the said Fyzoola Khân: for that the very next day (as it seems) after his arrival, he, the said Johnson, from opinions imbibed in his journey, did state himself to be "unwilling to draw any favorable or flattering inferences relatively to the object of his mission," and did studiously seek to find new breaches of treaty, and, without any form of regular inquiry whatever, from a single glance of his eye in passing, did take upon himself to pronounce "the Rohilla soldiers, in the district of Rampoor alone, to be not less than twenty thousand," and the grant of course to be forfeited. And that such a gross and palpable display of a predetermination to discover guilt did argue in the said Johnson a knowledge, a strong presumption, or a belief, that such representations would be agreeable to the secret wishes and views of the said Hastings, under whose orders he, the said Johnson, acted, and to whom all his reports were to be referred.

IX. That the said Richard Johnson, did soon after proceed to the immediate object of his mission, "which" (the said Johnson relates) "was short to a degree." The demand was made, and "a flat refusal" given. The question was repeated, with like effect. The said Johnson, in presence of proper witnesses, then drew up his protest, "together with a memorandum of a palliative offer made by the Nabob Fyzoola Khân," and inserted in the protest:—"That he would, in compliance with the demand, and in conformity to the treaty, which specified no definite number of cavalry or infantry, only expressing troops, furnish three thousand men: viz., he would, in addition to the one thousand cavalry already granted, give one thousand more, when and wheresoever required, and one thousand foot,"—together with one year's pay in advance, and funds for the regular payment of them in future.

And this, the said Richard Johnson observes, "I put down at his [the Nabob Fyzoola Khân's] particular desire, but otherwise useless; as my orders" (which orders do not appear) "were, not to receive any palliation, but a negative or affirmative": though such palliation, as it is called by the said Johnson, might be, as it was, in the strictest conformity to the treaty.

X. That in the said offer the Nabob Fyzoola Khân, instead of palliating, did at once admit the extreme right of the Vizier under the treaty, by agreeing to furnish three thousand men, when he, Fyzoola Khân, would have been justified in pleading his inability to send more than two thousand; that such inability would not (as appears) have been a false and evasive plea, but perfectly true and valid,—as the three thousand foot maintained by Fyzoola Khân were for the purposes of his internal government, for which the whole three thousand must have been demonstrably necessary; and that the Nabob Fyzoola Khân, by declining to avail himself of a plea so fair, so well founded, and so consonant to the indulgence expressly acknowledged in the treaty, and by thus meeting the specific demand of the Vizier as fully as, according to his own military establishment, he could, did for the said offer deserve rather the thanks of the said Vizier and the Company than the protest which the aforesaid Johnson, under the orders of Warren Hastings, did deliver.

XI. That the report of the said protest, as well as the former letter of the said Johnson, were by the Resident, Middleton, transmitted to the board, together with a letter from the Vizier, founded on the said report and letter of the said Johnson, and proposing in consequence "to resume the grant, and to leave Fyzoola Khân to join his other faithless brethren who were sent across the Ganges."

That the said papers were read in Council on the 4th of June, 1781, when the Governor-General, Warren Hastings, did move and carry a vote to suspend a final resolution on the same: and the said Hastings did not express any disapprobation of the proceedings of the said Johnson; neither did the said Hastings assign any reasons for his motion of suspension, which passed without debate. That in truth the said Hastings had then projected a journey up the country to meet the Vizier for the settlement of articles relative to the regulation of Oude and its dependencies, among which was included the jaghire of Fyzoola Khân; and the said Hastings, for the aforesaid purposes, did, on the 3d of July, by his own casting vote, grant to himself, and did prevail on his colleague, Edward Wheler, Esquire, to grant, a certain illegal delegation of the whole powers of the Governor-General and Council, and on the seventh of the same month did proceed on his way to join the Vizier at a place called Chunar, on the borders of Benares; and that the aforesaid vote of suspending a final resolution on the transactions with Fyzoola Khân was therefore in substance and effect a reference thereof by the said Hastings from himself in council with his colleague, Wheler, to himself in conference and negotiation with the Vizier, who, from the first demand of the five thousand horse, had taken every occasion of showing his inclination to dispossess Fyzoola Khân, and who before the said demand (in a letter which does not appear, but which the Vizier himself quotes as antecedent to the said demand) had complained to the said Hastings of the "injury and irregularity in the management of the provinces bordering on Rampoor, arising from Fyzoola Khân having the uncontrolled dominion of that district."

PART VI.

TREATY OF CHUNAR

I. That the Governor-General, Warren Hastings, being vested with the illegal powers before recited, did, on the 19th of September, 1781, enter into a treaty with the Vizier at Chunar,—which treaty (as the said Hastings relates) was drawn up "from a series of requisitions presented to him [the said Hastings] by the Vizier," and by him received "with an instant and unqualified assent to each article"; and that the said Hastings assigns his reasons for such ready assent in the following words: "I considered the subjects of his [the Vizier's] requests as essential to the reputation of our government, and no less to our interest than his."

II. That in the said treaty of Chunar the third article is as follows.

"That, as Fyzoola Khân has by his breach of treaty forfeited the protection of the English government, and causes by his continuance in his present independent state great alarm and detriment to the Nabob Vizier, he be permitted, when time shall suit, to resume his lands, and pay him in money, through the Resident, the amount stipulated by treaty, after deducting the amount and charges of the troops he stands engaged to furnish by treaty; which amount shall be passed to the account of the Company during the continuance of the present war."

III. That, for the better elucidation of his policy in the several articles of the treaty above mentioned, the said Hastings did send to the Council of Calcutta (now consisting of Edward Wheler and John Macpherson, Esquires) two different copies of the said treaty, with explanatory minutes opposed to each article; and that the minute opposed to the third article is thus expressed.

"The conduct of Fyzoola Khân, in refusing the aid demanded, though (1.) not an absolute breach of treaty, was evasive and uncandid. (2.) The demand was made for five thousand cavalry. (3.) The engagement, in the treaty is literally for five thousand horse and foot. Fyzoola Khân could not be ignorant that we had no occasion for any succors of infantry from him, and that cavalry would be of the most essential service. (4.) So scrupulous an attention to literal expression, when a more liberal interpretation would have been highly useful and acceptable to us, strongly marks his unfriendly disposition, though it may not impeach his fidelity, and leaves him little claim to any exertions from us for the continuance of his jaghires. But (5.) I am of opinion that neither the Vizier's nor the Company's interests would be promoted by depriving Fyzoola Khân of his independency, and I have (6.) therefore reserved the execution of this agreement to an indefinite term; and our government may always interpose to prevent any ill effects from it."

IV. That, in his aforesaid authentic evidence of his own purposes, motives, and principles, in the third article of the treaty of Chunar, the said Hastings hath established divers matters of weighty and serious crimination against himself.

1st. That the said Hastings doth acknowledge therein, that he did, in a public instrument, solemnly recognize, "as a breach of treaty," and as such did subject to the consequent penalties, an act which he, the said Hastings, did at the same time think, and did immediately declare, to be "no breach of treaty"; and by so falsely and unjustly proceeding against a person under the Company's guaranty, the said Hastings, on his own confession, did himself break the faith of the said guaranty.

2d. That, in justifying this breach of the Company's faith, the said Hastings doth wholly abandon his second peremptory demand for the three thousand horse, and the protest consequent thereon; and the said Hastings doth thereby himself condemn the violence and injustice of the same.

3dly. That, in recurring to the original demand of five thousand horse as the ground of his justification, the said Hastings doth falsely assert "the engagement in the treaty to be literally FIVE thousand horse and foot," whereas it is in fact for TWO or THREE thousand men; and the said Hastings doth thereby wilfully attempt to deceive and mislead his employers, which is an high crime and misdemeanor in a servant of so great trust.

4thly. That, with a view to his further justification, the said Hastings doth advance a principle that "a scrupulous attention to the literal expression" of a guarantied treaty "leaves" to the person so observing the same "but little claim to the exertions" of a guaranty on his behalf; that such a principle is utterly subversive of all faith of guaranties, and is therefore highly criminal in the first executive member of a government that must necessarily stand in that mutual relation to many.

5thly. That the said Hastings doth profess his opinion of an article to which he gave an "instant and unqualified assent," that it was a measure "by which neither the Vizier's nor the Company's interests would be promoted," but from which, without some interposition, "ill effects" must be expected; and that the said Hastings doth thereby charge himself with a high breach of trust towards his employers.

6thly. That the said Hastings having thus confessed that consciously and wilfully (from what motives he hath not chosen to confess) he did give his formal sanction to a measure both of injustice and impolicy, he, the said Hastings, doth urge in his defence, that he did at the same time insert words "reserving the execution of the said agreement to an indefinite term," with an intent that it might in truth be never executed at all,—but that "our government might always interpose," without right, by means of an indirect and undue influence, to prevent the ill effects following from a collusive surrender of a clear and authorized right to interpose; and the said Hastings doth thereby declare himself to have introduced a principle of duplicity, deceit, and double-dealing into a public engagement, which ought in its essence to be clear, open, and explicit; that such a declaration tends to shake and overthrow the confidence of all in the most solemn instruments of any person so declaring, and is therefore an high crime and misdemeanor in the first executive member of government, by whom all treaties and other engagements of the state are principally to be conducted.

V. That, by the explanatory minute aforesaid, the said Warren Hastings doth further, in the most direct manner, contradict his own assertions in the very letter which inclosed the said minute to his colleagues; for that one of the articles to which he there gave "an instant and unqualified assent, as no less to our interest than to the Vizier's" he doth here declare unequivocally to be neither to our interests nor the Vizier's; and the "unqualified assent" given to the said article is now so qualified as wholly to defeat itself. That by such irreconcilable contradictions the said Hastings doth incur the suspicion of much criminal misrepresentation in other like cases of unwitnessed conferences; and in the present instance (as far as it extends) the said Hastings doth prove himself to have given an account both of his actions and motives by his own confession untrue, for the purpose of deceiving his employers, which is an high crime and misdemeanor in a servant of so great trust.

VI. That the said third article of the treaty of Chunar, as it thus stands explained by the said Hastings himself, doth on the whole appear designed to hold the protection of the Company in suspense; that it acknowledges all right of interference to cease, but leaves it to our discretion to determine when it will suit our conveniency to give the Vizier the liberty of acting on the principles by us already admitted; that it is dexterously constructed to balance the desires of one man, rapacious and profuse, against the fears of another, described as "of extreme pusillanimity and wealthy," but that, whatever may have been the secret objects of the artifice and intrigue confessed to form its very essence, it must on the very face of it necessarily implicate the Company in a breach of faith, whichever might be the event, as they must equally break their faith either by withdrawing their guaranty unjustly or by continuing that guaranty in contradiction to this treaty of Chunar; that it thus tends to hold out to India, and to the whole world, that the public principle of the English government is a deliberate system of injustice joined with falsehood, of impolicy, of bad faith, and treachery; and that the said article is therefore in the highest degree derogatory to the honor, and injurious to the interests of this nation.

PART VII.

CONSEQUENCES OF THE TREATY OF CHUNAR

I. That, in consequence of the treaty of Chunar, the Governor-General, Warren Hastings, did send official instructions respecting the various articles of the said treaty to the said Resident, Middleton; and that, in a postscript, the said Hastings did forbid the resumption of the Nabob Fyzoola Khân's jaghire, "until circumstances may render it more expedient and easy to be attempted than the present more material pursuits of government make it appear": thereby intimating a positive limitation of the indefinite term in the explanatory minute above recited, and confining the suspension of the article to the pressure of the war.

II. That, soon after the date of the said instructions, and within two months of the signature of the treaty of Chunar, the said Hastings did cause Sir Elijah Impey, Knight, his Majesty's chief-justice at Fort William, to discredit the justice of the crown of Great Britain by making him the channel of unwarrantable communication, and did, through the said Sir Elijah, signify to the Resident, Middleton, his, the said Hastings's, "approbation of a subsidy from Fyzoola Khân."

III. That the Resident, in answer, represents the proper equivalent for two thousand horse and one thousand foot (the forces offered to Mr. Johnson by Fyzoola Khân) to be twelve lacs, or 120,000l. sterling and upwards, each year; which the said Resident supposes is considerably beyond what he, Fyzoola Khân, will voluntarily pay: "however, if it is your wish that the claim should be made, I am ready to take it up, and you may he assured nothing in my power shall be left undone to carry it through."

IV. That the reply of the said Hastings doth not appear; but that it does appear on record that "a negotiation" (Mr. Johnson's) "was begun for Fyzoola Khân's cavalry to act with General Goddard, and, on his [Fyzoola Khân's] evading it, that a sum of money was demanded."

V. That, in the months of February, March, and April, the Resident, Middleton, did repeatedly propose the resumption of Fyzoola Khân's jaghire, agreeably to the treaty of Chunar; and that, driven to extremity (as the said Hastings supposes) "by the public menaces and denunciations of the Resident and minister," Hyder Beg Khân, a creature of the said Hastings, and both the minister and Resident acting professedly on and under the treaty of Chunar, "the Nabob Fyzoola Khân made such preparations, and such a disposition of his family and wealth, as evidently manifested either an intended or an expected rupture."

VI. That on the 6th of May the said Hastings did send his confidential agent and friend, Major Palmer, on a private commission to Lucknow; and that the said Palmer was charged with secret instructions relative to Fyzoola Khân, but of what import cannot be ascertained, the said Hastings in his public instructions having inserted only the name of Fyzoola Khân, as a mere reference (according to the explanation of the said Hastings) to what he had verbally communicated to the said Palmer; and that the said Hastings was thereby guilty of a criminal concealment.

VII. That some time about the month of August an engagement happened between a body of Fyzoola Khân's cavalry and a part of the Vizier's army, in which the latter were beaten, and their guns taken; that the Resident, Middleton, did represent the same but as a slight and accidental affray; that it was acknowledged the troops of the Vizier were the aggressors; that it did appear to the board, and to the said Hastings himself, an affair of more considerable magnitude; and that they did make the concealment thereof an article of charge against the Resident, Middleton, though the said Resident did in truth acquaint them with the same, but in a cursory manner.

VIII. That, immediately after the said "fray" at Daranagur, the Vizier (who was "but a cipher in the hands" of the minister and the Resident, both of them directly appointed and supported by the said Hastings) did make of Fyzoola Khân a new demand, equally contrary to the true intent and meaning of the treaty as his former requisitions: which new demand was for the detachment in garrison at Daranagur to be cantoned as a stationary force at Lucknow, the capital of the Vizier; whereas he, the Vizier, had only a right to demand an occasional aid to join his army in the field or in garrison during a war. But the said new demand being evaded, or rather refused, agreeably to the fair construction of the treaty, by the Nabob Fyzoola Khân, the matter was for the present dropped.

IX. That in the letter in which the Resident, Middleton, did mention "what he calls the fray" aforesaid, the said Middleton did again apply for the resumption of the jaghire of Rampoor; and that, the objections against the measure being now removed, (by the separate peace with Sindia,) he desired to know if the board "would give assurances of their support to the Vizier, in case, which" (says the Resident) "I think very probable, his [the Vizier's] own strength should be found unequal to the undertaking."