That the said Warren Hastings could not plead ignorance of the law in excuse for the said illegal acts, as it appears from the proceedings of the four preceding days that he was well acquainted with the tenure by which the members of the Council held their offices under the act of the 13th of his present Majesty, and had stated the same as a ground for retaining his own office, contrary to an express declaration of the Court of Directors and an instrument under the sign-manual of his Majesty; and the judges of the Supreme Court, in their reasons for their decision in his favor,
had stated the provisions in the said act,[3] so far as they related to the matter in dispute, from which it appeared that there were but four grounds on which the office of any member of the Council could be vacated,—namely, death, removal, resignation, or promotion. And as the act confined the power of removal to "his Majesty, his heirs and successors, upon representation made by the Court of Directors of the said United Company for the time being," and conferred no such power on the Governor-General, or a majority of the Council, to remove, on any ground or for any cause whatever, one of their colleagues,—so, granting the claim of General Clavering to the chair, and his acts done in furtherance thereof, to have been illegal, and criminal in whatever degree, yet it did not furnish to the rest of the Council any ground to remove him from his office of Counsellor under the provisions of the said act; and there could therefore remain only his resignation or promotion, as a possible means of vacating his said office. But with regard to the promotion of General Clavering to the office of Governor-General, although he claimed it himself, yet, as Mr. Hastings did not admit it, and as in fact it was even receded from by General Clavering, it could not be considered, at least by Mr. Hastings, as a valid ground for vacating his office of Senior Counsellor, since the act requires for that purpose, not a rejected claim, but an actual and effectual promotion; and General Clavering's office of Counsellor could no more be vacated by such a naked claim, unsupported and disallowed, than the seat of a member of the House of Commons could be vacated, and a new writ issued to supply the vacancy, by his claim
to the office of Steward of the Chiltern Hundreds, when his Majesty has refused to appoint him to the said office. And with regard to resignation, although the said Warren Hastings, as a color to his illegal resolutions, had affectedly introduced the word "resigned" amongst those of "relinquished, surrendered, and vacated," yet he well knew that General Clavering had made no offer nor declaration of his resignation of his offices of Senior Counsellor and Commander-in-Chief, and that he did not claim the office of Governor-General on the ground of any such resignation made by himself, but on the ground of a resignation made by the said Warren Hastings, which resignation the said Warren Hastings did not admit; and the use of the term resigned on that occasion was therefore a manifest and wilful misconstruction and misapplication of the words of the act of his present Majesty. And such misinterpretation and false extension of the term of resignation was the more indecent in the said Warren Hastings, as he was at the same moment disavowing and refusing to give effect to his own clear and express resignation, according to the true intent and meaning of the word as used in the said act, made by his agent, duly authorized and instructed by himself so to do, to an authority competent to receive and accept the same.
That, although the said Warren Hastings did afterwards recede from the said illegal measures, in compliance with the opinion and advice of the judges again interposed, and did thereby avoid the guilt of such further acts and the blame of such further evils as must have been consequent on a persistence therein, yet he was nevertheless still guilty of the illegal acts above described; and the same are great crimes and misdemeanors.
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 sub
sequent 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,