My Lords, we shall now proceed to another circumstance, not less culpable in itself, though less shocking to your feelings, than those to which I have already called your attention:  a circumstance which throws a strong presumption of guilt upon every part of the prisoner’s conduct.  Having formed all these infernal plots in his mind, but uncertain which of them he should execute, uncertain what sums of money he should extort, whether he should deliver up the Rajah to his enemy or pillage his forts, he goes up to Benares; but he first delegates to himself all the powers of government, both civil and military, in the countries which he was going to visit.

My Lords, we have asserted in our charge that this delegation and division of power was illegal.  He invested himself with this authority; for he was the majority in the Council:  Mr. Wheler’s consent or dissent signifying nothing.  He gave himself powers which the act of Parliament did not give him.  He went up to Benares with an illegal commission, civil and military; and to prove this I shall beg leave to read the provisions of the act of Parliament.  I shall show what the creature ought to be, by showing the law of the creator:  what the legislature of Great Britain meant that Governor Hastings should be, not what he made himself.

     [Mr. Burke then read the seventh section of the act.]

Now we do deny that there is by this act given, or that under this act there can be given, to the government of India, a power of dividing its unity into two parts, each of which shall separately be a unity and possess the power given to the whole.  Yet, my Lords, an agreement was made between him and Mr. Wheler, that he (Mr. Hastings) should have every power, civil and military, in the upper provinces, and that Mr. Wheler should enjoy equal authority in the lower ones.

Now, to show you that it is impossible for such an agreement to be legal, we must refer you to the constitution of the Company’s government.  The whole power is vested in the Council, where all questions are to be decided by a majority of voices, and the members are directed to record in the minutes of their proceedings not only the questions decided, but the grounds upon which each individual member founds his vote.  Now, although the Council is competent to delegate its authority for any specific purpose to any servant of the Company, yet to admit that it can delegate its authority generally, without reserving the means of deliberation and control, would be to change the whole constitution.  By such a proceeding the government may be divided into a number of independent governments, without a common deliberative Council and control.  This deliberative capacity, which is so strictly guarded by the obligation of recording its consultations, would be totally annihilated, if the Council divided itself into independent parts, each acting according to its own discretion.  There is no similar instance in law, there is no similar instance in policy.  The conduct of these men implies a direct contradiction; and you will see, by the agreement they made to support each other, that they were themselves conscious of the illegality of this proceeding.