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 "Governour General delivers in the following

Minute. In my Minute which I laid before "the Court on the 21st May, I expressed the "satisfaction with which I could at this junc"ture leave the Presidency, from the mutual "confidence which was happily established be"tween 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 con"cert have provided at the Board for almost

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every important circumstance that can even

tually 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

L 3

specially or generally be entrusted to me. "Mr. Wheler during my absence may consider "himself as possessed of the full powers of the "Governour General and Council of this Go"vernment, as in effect he is by the constitu"tion; 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.

Lord Cornwallis was going to conduct a war of great magnitude, and was consequently trusted with extraordinary powers. He went in the two characters of governour and commander in chief, and yet the legislature was sensible of the doubtful validity of a governour 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 counsellor, is a monster that cannot exist. This the parties themselves felt so strongly, that they were obliged to have recourse to a stratagem

scarcely

scarcely less absurd than their divided assumption of power. They entered into a compact to confirm each other's acts, and to support each other in whatever they did; thus attempting to give their separate acts a legal form.

I have further to remark to your Lordships, what has just been suggested to me, that it was for the express purpose of legalizing Lord Cornwallis's delegation, that he was made commander in chief as well as governour general by the Act.

The next plea urged by Mr. Hastings, is conveniency. "It was convenient," he says, “for me to do this." I answer, no person acting with delegated power can delegate that power to another. Delegatus not potest delegare is a maxim of law; much less has he a right to supersede the law and the principle of his own delegation and appointment, upon any idea of convenience. But what was the conveniency? There was no one professed object connected with Mr. Hastings's going up to Benares, which might not as well have been attained in Calcutta. The only difference would have been, that in the latter case, he must have entered some part of his proceedings upon the consultations, whether he wished it or not. If he had a mind to negotiate with the Vizier, he had a resident at his court and the Vizier had a resident in Calcutta. The most solemn treaties had often

been