General Clavering was of a different opinion. He thought "he should be wanting to the legislature, and to the Court of Directors, if he was not to receive the complaints of the inhabitants, when properly authenticated, and to prefer them to the board for investigation, as the only means by which these grievances can be redressed, and the Company informed of the conduct of their servants."
To these sentiments Colonel Monson and Mr. Francis adhered. Mr. Hastings thought it more safe, on principles similar to those assumed by Mr. Barwell, to refuse to hear the charge; but he reserved his remarks on this transaction, because they will be equally applicable to many others which in the course of this business are likely to be brought before the board. There appeared, therefore, to him a probability that the charge about the corrupt bargain was no more than the commencement of a whole class of such accusations; since he was of opinion (and what is very extraordinary, previous to any examination) that the same remarks would be applicable to several of those which were to follow. He must suppose this class of charges very uniform, as well as very extensive.
The majority, however, pressed their point; and notwithstanding his opposition to all inquiry, as he was supported only by Mr. Barwell, the question for it was carried. He was then desired to name a day for the appearance of the accuser, and the institution of the inquiry. Though baffled in his attempt to stop the inquiry in the first stage, Mr. Hastings made a second stand. He seems here to have recollected something inherent in his own office, that put the matter more in his power than at first he had imagined; for he speaks in a positive and commanding tone: "I will not," says his minute, "name a day for Mir Zin ul ab Dien to appear before the board; nor will I suffer him to appear before the board."
The question for the inquiry had been carried; it was declared fit to inquire; but there was, according to him, a power which might prevent the appearance of witnesses. On the general policy of obstructing such inquiries, Mr. Francis, on a motion to that effect, made a sound remark, which cannot fail of giving rise to very serious thoughts: "That, supposing it agreed among ourselves that the board shall not hear any charges or complaints against a member of it, a case or cases may hereafter happen, in which, by a reciprocal complaisance to each other, our respective misconduct may be effectually screened from inquiry; and the Company, whose interest is concerned, or the parties who may have reason to complain of any one member individually, may be left without remedy."
Mr. Barwell was not of the opinion of that gentleman, nor of the maker of the motion, General Clavering, nor of Mr. Monson, who supported it. He entertains sentiments with regard to the orders of the Directors in this particular perfectly correspondent with those which he had given against the original inquiry. He says, "Though it may in some little degree save the Governor-General from personal insult, where there is no judicial power lodged, that of inquisition can never answer any good purpose." This is doctrine of a most extraordinary nature and tendency, and, as your Committee conceive, contrary to every sound principle to be observed in the constitution of judicatures and inquisitions. The power of inquisition ought rather to be wholly separated from the judicial, the former being a previous step to the latter, which requires other rules and methods, and ought not, if possible, to be lodged in the same hands. The rest of his minute (contained in the Appendix) is filled with a censure on the native inhabitants, with reflections on the ill consequences which would arise from an attention to their complaints, and with an assertion of the authority of the Supreme Court, as superseding the necessity and propriety of such inquiries in Council. With regard to his principles relative to the natives and their complaints, if they are admitted, they are of a tendency to cut off the very principle of redress. The existence of the Supreme Court, as a means of relief to the natives under all oppressions, is held out to qualify a refusal to hear in the Council. On the same pretence, Mr. Hastings holds up the authority of the same tribunal. But this and other proceedings show abundantly of what efficacy that court has been for the relief of the unhappy people of Bengal. A person in delegated authority refuses a satisfaction to his superiors, throwing himself on a court of justice, and supposes that nothing but what judicially appears against him is a fit subject of inquiry. But even in this Mr. Hastings fails in his application of his principle; for the majority of the Council were undoubtedly competent to order a prosecution against him in the Supreme Court, which they had no ground for without a previous inquiry. But their inquiry had other objects. No private accuser might choose to appear. The party who was the subject of the peculation might be (as here is stated) the accomplice in it. No popular action or popular suit was provided by the charter under whose authority the court was instituted. In any event, a suit might fail in the court for the punishment of an actor in an abuse for want of the strictest legal proof, which might yet furnish matter for the correction of the abuse, and even reasons strong enough not only to justify, but to require, the Directors instantly to address for the removal of a Governor-General.—The opposition of Mr. Hastings and Mr. Barwell proved as ineffectual in this stage as the former; and a day was named by the majority for the attendance of the party.
The day following this deliberation, on the assembling of the Council, the Governor-General, Mr. Hastings, said, "he would not sit to be confronted by such accusers, nor to suffer a judicial inquiry into his conduct at the board of which he is the president." As on the former occasions, he declares the board dissolved. As on the former occasions, the majority did not admit his claim to this power; they proceeded in his absence to examine the accuser and witnesses. Their proceedings are in Appendix K.
It is remarkable, that, during this transaction, Khân Jehan Khân, the party with whom the corrupt agreement was made, declined an attendance under excuses which the majority thought pretences for delay, though they used no compulsory methods towards his appearance. At length, however, he did appear, and then a step was taken by Mr. Hastings of a very extraordinary nature, after the steps which he had taken before, and the declarations with which those steps had been accompanied. Mr. Hastings, who had absolutely refused to be present in the foregoing part of the proceeding, appeared with Khân Jehan Khân. And now the affair took another turn; other obstructions were raised. General Clavering said that the informations hitherto taken had proceeded upon oath. Khân Jehan Khân had previously declared to General Clavering his readiness to be so examined; but when called upon by the board, he changed his mind, and alleged a delicacy, relative to his rank, with regard to the oath. In this scruple he was strongly supported by Mr. Hastings. He and Mr. Barwell went further: they contended that the Council had no right to administer an oath. They must have been very clear in that opinion, when they resisted the examination on oath of the very person who, if he could safely swear to Mr. Hastings's innocence, owed it as a debt to his patron not to refuse it; and of the payment of this debt it was extraordinary in the patron not only to enforce, but to support, the absolute refusal.
Although the majority did not acquiesce in this doctrine, they appeared to have doubts of the prudence of enforcing it by violent means; but, construing his refusal into a disposition to screen the peculations of the Governor-General, they treated him as guilty of a contempt of their board, dismissed him from the service, and recommended another (not the accuser) to his office.