whether it is likely, or morally possible, that I should have tied down my own future conduct to so decided a process and series of acts, if I had secretly intended to threaten, or to use a degree of violence, for no other purpose than to draw from the object of it a mercenary atonement for my own private emolument, and suffer all this tumult to terminate in an ostensible and unsubstantial submission to the authority which I represented."

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He had just before said, "If 1 ever talked of selling the Company's sovereignty to the Nabob of Oude, it was only in terrorem." In the face of this assertion, he here gives you to understand he never held out anything in terrorem, but what he intended to execute. But we will show you that in fact he had reserved to himself a power of acting pro re nata: and that he intended to compound or not, just as answered his purposes upon this occasion. "I admit," he says, "that I did not enter it" (the intention of fining Cheit Sing) on the consultations, because it was not necessary; even this plan itself of the fine was not a fixed plan, but to be regulated by circumstances, both as to the substantial execution of it and the mode." Now here is a man who has given it in a sworn narrative that he did not intend to have a farthing less. Why? "Because I should have menaced and done as in former times has been done; made great and violent demands which I reduced afterwards for my own corrupt purposes." Yet he tells you in the course of the same defence, but in another paper, that he had no fixed plan, that he did not know whether he should exact a fine at all, or what should be his mode of executing it.

My lords, what shall we say to this man, who declares that it would be a proof of corruption not to exact the full sum which he had threatened to exact, but who finding that this doctrine would press hard upon him, and be considered as a proof of cruelty and injustice, turns round and declares he had no intention of exacting anything? What shall we say to a man who thus reserves his determination, who threatens to sell a tributary prince to a tyrant, and cannot decide whether he should take from him his forts, and pillage him of all he had; whether he should raise £500,000 upon him, whether he should accept the £220,000 offered (which by the way we never knew of till long after the whole trans

action), whether he should do any or all of those things, and then by his own account going up to Benares, without having resolved anything upon this important subject?

My lords, I will now assume the hypothesis that he at last discovered sufficient proof of rebellious practices; still even this gave him no right to adduce such rebellion in justification of resolutions which he had taken, of acts which he had done, before he knew anything of its existence. To such a plea we answer, and your lordships will every one of you answer, you shall not by a subsequent discovery of rebellious practices, which you did not know at the time, and which you did not even believe, as you have expressly told us here, justify your conduct prior to that discovery.

If the conspiracy which he falsely imputes to Cheit Sing, if that wild scheme of driving the English out of India had existed, think in what miserable circumstances we stand as prosecutors and your lordships as judges, if we admit a discovery to be pleaded in justification of antecedent acts, founded upon the assumed existence of that which he had no sort of proof, knowledge, or belief of!

My lords, we shall now proceed to another circumstance, not less culpable in itself, though less shocking to your feelings, than those to which I have already called your attention; a circumstance which throws a strong presumption of guilt upon every part of the prisoner's conduct. Having formed all these infernal plots in his mind, but uncertain which of them he should execute, uncertain what sums of money he should extort, whether he should deliver up the Rajah to his enemy, or pillage his forts; he goes up to Benares; but he first delegates to himself all the powers of government, both civil and military, in the countries which he was going to visit.

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

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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 GovernorGeneral 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.

ers.

Lord Cornwallis was going to conduct a war of great magnitude, and was consequently trusted with extraordinary powHe 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