Edmund Burke - 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.