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COURT'S DRAFT,

No. 128.

OBSERVATIONS ON THE COURT'S DRAFT,

No. 128.

the Mahratta state; and he was, at the same time, required to refer to the governor-general in council, all cases in which such a previous reference might not appear to hazard the public interests.

Under the same reservation, major-general Wellesley was authorized and empowered to commence and conclude negotiations with any of the Mahratta chiefs, and Jagheerdars, for the purpose of promoting the general objects of the alliance, then lately concluded with his highness the Peishwah, or of that subsisting with his highness the Nizam.

"Major-general Wellesley was further empowered to negotiate, and to conclude any engagements with Dowlah Rao cindia, with the Rajah of Berar, or with Jesswunt Rao Holkar, which might induce those chieftains to retire with their forces within the limits of their respective dominions, or to afford any other satisfactory pledge of their respective pacific intentions, towards the British government and its allies; and he was authorized to arbitrate, on the part of the British government, the terms of any convention between his highness the Peishwah, and those chieftains respectively, for the settlement of mutual differences or demands, or for the adjustment of relative preten

sions.

"Lastly, major-general Wellesley was empowered to contract such engagements with any subordinate chieftain, of the Mahratta states, as might appear to him to be expedient for the purpose of securing their co-operation in the event of hostilities, between the British government and Scindiah, the Rajah of Berar Jesswunt Rao Holkar, or any other power; and to adopt the necessary measures for conciliating the obedience of the subordinate chiefs to the Peishwah's authority; and he was informed, that all such engagements as he might conclude would be confirmed, under the limitations prescribed in his instructions.

"The authority delegated to the commander in chief, by the letter of the governor-general, dated the 27th of July, 1803, vested the commander in chief with the same powers in Hindostan, as those possessed by major general Wellesley, and eventually by lieutenant-general Stuart, in the Deccan.

"On the commencement of the late war, in Mysore, lieutenant-general Harris was authorized (with the assistance of a commission, placed under his immediate orders, and appointed for the express purpose of relieving him from the details which might be incom. patible with his other important avocations) to negotiate and conclude a definitive treaty of peace, with Tippoo Sultaun, on the conditions prescribed in the orders of the governor-general, dated the 22d of February, 1799 With the assistance, and through the medium of the same commission, lieutenant-general Harris was authorized to receive and consider all overtures from any of the tributaries, principal officers, and other subjects of Tippoo Sultaun, who might be inclined to throw off the authority of that prince, and to place themselves under the protection of the

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OBSERVATIONS ON THE COURT'S DRAFT,

No. 128.

company and of her alles; and in all cases, which might not admit of reference to the governor-general, the commission was empowered to decide, under the authority of lieutenant-general Harris, the degree and nature of the encouragement proper to be given to such persons, on the principles stated in the general instructions issued for their guidance.

"The commission was directed to be careful not to guarantee any engagements, which the allies might be inclined to form with persons renouncing their allegiance to Tippoo Sultaun, except in certain cases of peculiar exigency, which might arise, without the possibility of a previous reference to the governorgeneral; in such cases they were required to regulate their conduct, as nearly as possible, on the principles prescribed by the governor-general's instructions.

"It was further directed, by a proclamation issued by the governor-general in council, at Fort St. George, on the 2d of February, 1799, that all civil servants, subject to the authority of the presidencies of Fort St. George, and of Bombay, and all military officers serving under the authority of either presidency respectively, should pay immediate and prompt obedience to all such requisitions and orders, as they might receive from the commander in chief, lieutenantgeneral Harris.

"It will be manifest to your honourable court, that the authority delegated to lieutenant-general Harris, in the year 1799, corresponded in principle with the powers entrusted to lieutenant-general Stuart, major-general Wellesley, and to the commander in chief, in the year 1803, and that the only distinction which can be perceived between them, arose from the peculiar circumstances of each particular case, and from the distance from the controlling authority at which those powers were to be exercised. On the occasion of the war in Mysore, as well as in that of the late Mahratta war, the commander in chief was vested with powers to negotiate, and to conclude, engagements with certain descriptions of persons, whose co-operation was expected to prove advantageous to the British cause, on the principles prescribed by their general instructions; and in both instances they were required to refer alt questions to the authority of the governor-general, where the public interests were not likely to be exposed to injury from delay. Nearly similar observations would be applicable to the commision issued by the governor-general at Fort St. George, for the settlement of Mysore, after the fall of Seringapatam.

Under this explanation, it is manifest that the general authority vested in the commander in chief, and in major-general Wellesley, in the year 1803, was not more extensive than the public interests absolutely required; and the governor-general in council trusts, that your honourable court will perceive, that the administration of the affairs of this extensive empire could not be conducted with advantage, unless, in cases of public emergency, this government possessed

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OBSERVATIONS ON THE COURT'S DRAFT.

No. 128.

possessed the right to commit to officers of distinguished character and talents, serving at a distance from the seat of government, such discretionary powers as may be required in circumstances of exigency, to be exercised on their responsibility, and subject to the ultimate confirmation of the supreme authority in India. The right to delegate such discretionary powers, appears to the governor-general in council to be necessarily inherent in every well-regulated government; and it does not appear to his excellency in council to be probable that, it could have been in the contemplation of the legislature to impose any other check on its exercise (within proper limits,) than the check which arises from the general responsibility of the government for the propriety of all its

measures..

"The powers of the governor general, whether exercised in his own presidency, or at the presidencies of Fort St. George, or Bombay, with the councils of either presidency, are, in the judgment of the governor-general in council, the same, this cas appearing to be expressly provided for by section 32d of the .statute of 1793, chapter 52d.

"At the period of time, when it was determined by this government to commence hostilities against Jesswunt Rao Holkar, major-general Wellesley had proceeded to Bombay, on the invitation of the honourable the governor of that presidency, for the express purpose of conferring with Mr. Duncan, and the government of Bombay, on the subject of the necessary arrangements at that presidency, in consequence of the conclusion of peace with Dowlut Rao Scindiah, and the Rajah of Berar. Major-general Wellesley was in the habit of daily confidential communication with Mr. Duncan, and it was at that period of time intended that the war in the Deccan, against Jesswunt Rao Helkar, should have been conducted by generat Wellesley, on the same grounds on which the conduct of the war against the confederates had been entrusted to that distinguished officer.

"The channel of communication, on this occasion, was, therefore, considered to be the most proper which could have been adopted. No extensive preparations for the prosecution of the war were required at Bombay; and the governor-general considered himself to be at liberty to exercise his discretion, with respect to the mode of communication with the government on the subject.

"This mode of communication appeared to the governor-general to be peculiarly proper, because the operations of the war on the west of India were to be conducted by an officer acting under the immediate, authority of the supreme government, and those operations were not, in any degree, subject to the regulation and control of the government of Bombay. The governor general in councit certainly entertained no intention of violating any established usage, or any provision of the law, but adve.ted merely to the dis

patsh

COURT'S DRAFT,
No. 128.

The appointment of Mr. H. Wellesley to conduct a negotiation at Lucknow; and his appointment to be lieutenant-governor of Oude. Paragraph 4 and 5.

OBSERVATIONS ON THE COURT'S DRAFT,
No 128.

patch of the public business, and to the advantage of
the service, in a crisis of war."

7. The preceding extracts, from the letter of the governor-general in council, 20th May, 1805, embraces every point contained in the first division of the paper No. 128, under the head" infraction of the law," &c. with the exception,

8. 1st. Of the appointment of Mr. Wellesley, 2d. The mode of recording minutes; 3d. The appointment of colonel Murray; and 4thly, the discussion respecting the person and number of the verb used in the letters from Bengal, addressed to the court of directors.

9. On the first point, viz. Mr. Wellesley's appoint. ment, it is sufficient to state, that the governor-general, lord Wellesley, having had reason to apprehend, that the nabob vizier had adopted a systematic course of proceedings, for the purpose of frustrating the issue of the negotiations which were then depending with the court of Oude: and having received intimation, that the nabob might attempt to pass over the season without concluding any final arrangement with the company, under the pretext of awaiting lord Wellesley's expected arrival at Lucknow, determined to dispatch Mr. Wellesley to Lucknow, as the most advantageous measure which could be substituted for the governor-general's presence at that city. It was thought, that a person so nearly allied to the governorgeneral by the ties of blood, as well as of the most intimate confidential connection, would necessarily inspire the nabob with a serious conviction of the importance annexed by lord Wellesley to the success of the depending negotiation, and would remove from the nabob's mind whatever doubts he might have been erroneously induced to entertain of the governorgeneral's adherence to the determination which had so frequently been announced to him by letter, and through lieutenant-colonel Scott, the resident at Lucknow.

10. Mr. Wellesley accordingly proceeded to Lucknow in the month of July, 1801, and, on the 10th of November, 1801, concluded a treaty with the nabob vizier, which was ratified by the governor-general, (who was absent from Calcutta on the public service) on the 14th of the same month, on the river Ganges, near Benares, and transmitted on the same day to the vice-president in council at Calcutta. The treaty was forwarded to England by the Mornington packet, by the vice-president in council, and finally approved by the secret committee on the 19th November, 1803. It is unnecessary, in this place, to state, that the conclusion of that important arrangement is principally to be ascribed to the eminent discretion, firmness, and temper, which Mr. Wellesley conducted himself in every stage of the negotiation; and that to the exertion of the joint talents and perseverance of Mr. Wellesley and colonel Scott, the company and the British nation are indebted for one of the most valuable additions which has been made for many

years

COURT'S DRAFT,

No. 128.

OBSERVATIONS ON THE COURT'S DRAFT,

No. 128.

years past, to the security and honour of the British empire in India.

11. The peculiar character of the people of the districts ceded to the company under the treaty of Lucknow, and the obstacles which the nabob and his dependants might be expected to oppose to the final settlement of the country under the British govern. ment, required the constant presence of an active and vigorous authority, until the foundation of the new arrangement should be firmly established. The ability and firmness which Mr. Wellesley had manifested in the principal conduct of the negotiation with the nabob, had been the most efficient cause of its speedy, prosperous, and tranquil issue. These qualities, combined with the authority which he naturally derived from his near connection with the governor general, induced lord Wellesley to consider Mr. Wellesley to be the most useful instrument which could be employed on the occasion. Lord Wellesley, therefore, appointed Mr. Wellesley, at the head of a commission of civil servants of the company, to preside over the provisional government of the ceded districts at the commencement of the settlement. The duty being merely of a temporary and extraordinary nature, no objection existed to his appointment, on the grounds of the act of Parliament for filling the civil offices under the government of India; and the court of directors having already approved of Mr. Wellesley's appointment to be a commissioner for the settlement of Mysore, in 1799, and actually presented him with a reward for his services on that occasion, there was no reason to suppose, that the employment of Mr. Wellesley, in the settlement of countries, not yet reduced to a state of order, or of regular administration, and in the execution of similar duties to those which had already received the approbation of the court of directors, could be deemed inconsistent either with the rules of the company's service, the practice of the government of India, or the interests of the civil servants of the company.

12. In fixing the amount of Mr. Wellesley's salary, lord Wellesley was guided by the consideration of precluding the possibility of that gentleman's incurring any pecuniary loss by the discharge of his important functions; on the other hand, his lordship determined, in conformity to Mr. Wellesley's express desire, that he should not derive any emolument from the office of lieutenant-governor of the ceded provinces, beyond the amount of that which he actually possessed in the office of private secretary, under the express orders of the court of directors. The governor-general therefore directed Mr. Wellesley (in conformity to the practice which is adopted by all political agents in India) to charge the company with his actual expenses, and continued to him the amount of his salary as private secretary, being 6000/. per

apnum,

Lord Cornwallis employed colonel Read, and three m'itary officers, as collectors, to settle the countries ceded by Tippoo, in 1792.

VOL. 9.

B

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