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

PART III.
GUARANTY OF THE TREATY OF LALL-DANG

I. That during the life of the Vizier Sujah ul Dowlah, and for some time after his death, under his son and successor, Asoph ul Dowlah, the Nabob Fyzoola Khân did remain without disturbance or molestation; that he did all the while imagine his treaty to be under the sanction of the Company, from Colonel Champion's affixing his signature thereto as a witness, "which signature, as he [Fyzoola Khân] supposed," (rendered the Company the arbitrators) between the Vizier and himself, in case of disputes; and that, being "a man of sense, but extreme pusillanimity, a good farmer, fond of wealth, not possessed of the passion of ambition," he did peaceably apply himself to "improve the state of his country, and did, by his own prudence and attention, increase the revenues thereof beyond the amount specified in Sujah ul Dowlah's grant."

II. That in the year 1777, and in the beginning of the year 1778, being "alarmed at the young Vizier's resumption of a number of jaghires granted by his father to different persons, and the injustice and oppression of his conduct in general," and having now learned (from whom does not appear, but probably from some person supposed of competent authority) that Colonel Champion formerly witnessed the treaty as a private person, the Nabob Fyzoola Khân did make frequent and urgent solicitations to Nathaniel Middleton, Esquire, then Resident at Oude, and to Warren Hastings aforesaid, then Governor-General of Bengal, "for a renovation of his [the Nabob Fyzoola Khân's] treaty with the late Vizier, and the guaranty of the Company," or for a "separate agreement with the Company for his defence": considering them, the Company, as "the only power in which he had confidence, and to which he could look up for protection."

III. That the said Resident Middleton, and the said Governor-General Hastings, did not, as they were in duty bound to do, endeavor to allay the apprehensions of the Nabob Fyzoola Khân by assuring him of his safety under the sanction of Colonel Champion's attestation aforesaid, but by their criminal neglect, if not by positive expressions, (as there is just ground from their subsequent language and conduct to believe,) they, the said Middleton and the said Hastings, did at least keep alive and confirm (whoever may have originally suggested) the said apprehension; and that such neglect alone was the more highly culpable in the said Hastings, inasmuch as he, the said Hastings, in conjunction with other members of the Select Committee of the then Presidency of Bengal, did, on the 17th of September, 1774, write to Colonel Champion aforesaid, publicly authorizing him, the said Colonel Champion, to join his sanction to the accommodations agreed on between the Vizier Sujah ul Dowlah and the Nabob Fyzoola Khân, to add to their validity,—and on the 6th of October following did again write to the said Colonel Champion, more explicitly, to join his sanction, "either by attesting the treaty, or acting as guaranty on the part of the Company for the performance of it": both which letters, though they did not arrive until after the actual signature of the said Colonel Champion, do yet incontrovertibly mark the solemn intention of the said Committee (of which the said Hastings was President) that the sanction of Colonel Champion's attestation should be regarded as a public, not a private, sanction; and it was more peculiarly incumbent on such persons, who had been members of the said Committee, so to regard the same.

IV. That the said Warren Hastings was further guilty of much criminal concealment for the space of "twelve months," inasmuch as he did not lay before the board the frequent and urgent solicitations which he, the said Hastings, was continually receiving from the Nabob Fyzoola Khân, until the 9th of March, 1778; on which day the said Hastings did communicate to the Council a public letter of the aforesaid Middleton, Resident at Oude, acquainting the board that he, the said Middleton, taking occasion from a late application of Fyzoola Khân for the Company's guaranty, had deputed Mr. Daniel Octavus Barwell (Assistant Resident at Benares, but then on a visit to the Resident Middleton at Lucknow) to proceed with a special commission to Rampoor, there to inquire on the spot into the truth of certain reports circulated to the prejudice of Fyzoola Khân, which reports, however, the said Middleton did afterwards confess himself to have "always" thought "in the highest degree improbable."

That the said Resident Middleton did "request to know whether, on proof of Fyzoola Khân's innocence, the honorable board would be pleased to grant him [the Resident] permission to comply with his [Fyzoola Khân's] request of the Company's guarantying his treaty with the Vizier." And the said Middleton, in excuse for having irregularly "availed himself of the abilities of Mr. Daniel Barwell," who belonged to another station, and for deputing him with the aforesaid commission to Rampoor without the previous knowledge of the board, did urge the plea "of immediate necessity"; and that such plea, if the necessity really existed, was a strong charge and accusation against the said Warren Hastings, from whose criminal neglect and concealment the urgency of such necessity did arise.

V. That the Governor-General, Warren Hastings aforesaid, did immediately move, "that the board approve the deputation of Mr. Daniel Barwell, and that the Resident [Middleton] be authorized to offer the Company's guaranty for the observance of the treaty subsisting between the Vizier and Fyzoola Khân, provided it meets with the Vizier's concurrence"; and that the Governor-General's proposition was resolved in the affirmative: the usual majority of Council then consisting of Richard Barwell, Esquire, a near relation of Daniel Octavus Barwell aforesaid, and the Governor-General, Warren Hastings, who, in case of an equality, had the casting voice.

VI. That, on receiving from Mr. Daniel Barwell full and early assurance of Fyzoola Khân's "having preserved every article of his treaty inviolate," the Resident, Middleton, applied for the Vizier's concurrence, which was readily obtained,—the Vizier, however, "premising, that he gave his consent, taking it for granted, that, on Fyzoola Khân's receiving the treaty and khelaut [or robe of honor], he was to make him a return of the complimentary presents usually offered on such occasions, and of such an amount as should be a manifestation of Fyzoola Khân's due sense of his friendship, and suitable to his Excellency's rank to receive"; and that the Resident, Middleton, "did make himself in some measure responsible for the said presents being obtained," and did write to Mr. Daniel Barwell accordingly.

VII. That, agreeably to the resolution of Council hereinbefore recited, the solicited guaranty, under the seal of the Resident, Middleton, thus duly authorized on behalf of the Company, was transmitted, together with the renewed treaty, to Mr. Daniel Barwell aforesaid at Rampoor, and that they were both by him, the said Barwell, presented to the Nabob Fyzoola Khân, with a solemnity not often paralleled, "in the presence of the greatest part of the Nabob's subjects, who were assembled, that the ceremony might create a full belief in the breasts of all his people that the Company would protect him as long as he strictly adhered to the letter of his treaty."

VIII. That, in the conclusion of the said ceremony, the Nabob Fyzoola Khân did deliver to the said Barwell, for the use of the Vizier, a nuzzer (or present) of elephants, horses, &c., and did add thereto a lac of rupees, or 10,000l. and upwards: which sum the said Barwell, "not being authorized to accept any pecuniary consideration, did at first refuse; but upon Fyzoola Khân's urging, that on such occasions it was the invariable custom of Hindostan, and that it must on the present be expected, as it had been formerly the case," (but when does not appear,) he, the said Barwell, did accept the said lac in the name of the Vizier, our ally, "in whose wealth" (as Warren Hastings on another occasion observed) "we should participate," and on whom we at that time had an accumulating demand.

IX. That, over and above the lac of rupees thus presented to the Vizier, the Nabob Fyzoola Khân did likewise offer one other lac of rupees, or upwards of 10,000l. more, for the Company, "as some acknowledgment of the obligation he received; that, although such acknowledgment was not pretended to be the invariable custom of Hindostan on such occasions, however it might on the present be expected," Mr. Daniel Barwell aforesaid (knowing, probably, the disposition and views of the then actual government at Calcutta) did not, even at first, decline the said offer, but, as he was not empowered to accept it, did immediately propose taking a bond for the amount, until the pleasure of the board should be known.

That the offer was accordingly communicated by the said Barwell to the Resident, Middleton, to be by him, the Resident, referred to the board, and that it was so referred; that, in reply to the said reference of the Resident, Middleton, the Governor-General, Warren Hastings, did move and carry a vote of Council, "authorizing Mr. Middleton to accept the offer made by Fyzoola Khân to the Company of one lac of rupees," without assigning any reason whatever in support of the said motion, notwithstanding it was objected by a member of the board, "that, if the measure was right, it became us to adopt it without such a consideration," and that "our accepting of the lac of rupees as a recompense for our interposition is beneath the dignity of this government [of Calcutta], and will discredit us in the eyes of the Indian powers."

That the acceptance of the said sum, in this circumstance, was beneath the dignity of the said government, and did tend so to discredit us; and that the motion of the said Hastings for such acceptance was therefore highly derogatory to the honor of this nation.

X. That the aforesaid member of the Council did further disapprove altogether of the guaranty, "as unnecessary"; and that another member of Council, Richard Barwell, Esquire, the near relation of Daniel Octavus Barwell, hereinbefore named, did declare, (but after the said guaranty had taken place,) that "this government [of Calcutta] was in fact engaged by Colonel Champion's signature being to the treaty with Fyzoola Khân." That the said unnecessary guaranty did not only subject to an heavy expense a prince whom we were bound to protect, but did further produce in his mind the following obvious and natural conclusion, namely, "that the signature of any person, in whatever public capacity he at present appears, will not be valid and of effect, as soon as some other shall fill his station": a conclusion, however, immediately tending to the total discredit of all powers delegated from the board to any individual servant of the Company, and consequently to clog, perplex, and embarrass in future all transactions carried on at a distance from the seat of government, and to disturb the security of all persons possessing instruments already so ratified,—yet the only conclusion left to Fyzoola Khân which did not involve some affront either to the private honor of the Company's servants or to the public honor of the Company itself; and that the suspicions which originated from the said idea in the breast of Fyzoola Khân to the prejudice of the Resident Middleton's authority did compel the Governor-General, Warren Hastings, to obviate the bad effects of his first motion for the guaranty by a second motion, namely, "That a letter be written to Fyzoola Khân from myself, confirming the obligations of the Company as guaranties to the treaty formed between him and the Vizier,—which will be equivalent in its effect, though not in form, to an engagement sent him with the Company's seal affixed to it."

XII.²³ That, whether the guaranty aforesaid was or was not necessary, whether it created a new obligation or but more fully recognized an obligation previously existing, the Governor-General, Warren Hastings, by the said guaranty, did, in the most explicit manner, pledge and commit the public faith of the Company and the nation; and that by the subsequent letter of the said Hastings (which he at his own motion wrote, confirming to Fyzoola Khân the aforesaid guaranty) the said Hastings did again pledge and commit the public faith of the Company and the nation, in a manner (as the said Hastings himself remarked) "equivalent to an engagement with the Company's seal affixed to it," and more particularly binding the said Hastings personally to exact a due observance of the guarantied treaty, especially to protect the Nabob Fyzoola Khân against any arbitrary construction or unwarranted requisition of the Vizier.

PART IV.
THANKS OF THE BOARD TO FYZOOLA KHÂN

I. That, soon after the completion of the guaranty, in the same year, 1778, intelligence was received in India of a war between England and France; that, on the first intimation thereof, the Nabob Fyzoola Khân, "being indirectly sounded," did show much "promptness to render the Company any assistance within the bounds of his finances and ability"; and that by the suggestion of the Resident, Middleton, hereinbefore named, he, the Nabob Fyzoola Khân, in a letter to the Governor-General and Council, did make a voluntary "offer to maintain two thousand cavalry (all he had) for our service," "though he was under no obligation to furnish the Company with a single man."

II. That the Nabob Fyzoola Khân did even "anticipate the wishes of the board"; and that, "on an application made to him by Lieutenant-Colonel Muir," the Nabob Fyzoola Khân did, "without hesitation or delay," furnish him, the said Muir, with five hundred of his best cavalry.

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 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

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."