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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.

[Mr. Burke then read the seventh section of the act.]

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 of 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 entrusted 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 councillor, 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 Cheit Sing 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.

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