Chapter 9

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 Khan's cavalry, voluntarily granted, were still serving under a British officer, did recommend to the Vizier "to require from Fyzoola Khan 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 Khan"; 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 Khan 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 Khan _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 Khan'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 Khan," 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 Khan 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 Khan" (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 Khan, so by annulling the whole treaty to reduce the question to a mere question of force, and thus "oblige Fyzoola Khan to send the five thousand horse": "for," (continues the Vizier,) "if, when the Company's affairs, on which my honor depends, require it, Fyzoola Khan 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 Khan 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 Khan 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 Khan 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 Khan, 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 Khan, was utterly impossible: for he, the said Hastings, had at the very moment before him a letter of Fyzoola Khan, stating, that he, Fyzoola Khan, 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 Khan] 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 Khan; but that he did early give the most indecent proofs of glaring partiality, to the prejudice of the said Fyzoola Khan: 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 Khan," 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 Khan'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 Khan, 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 Khan, 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 Khan were for the purposes of his internal government, for which the whole three thousand must have been demonstrably necessary; and that the Nabob Fyzoola Khan, 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 Khan 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 Khan; 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 Khan 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 Khan, 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 Khan having the uncontrolled dominion of that district."