PART V.
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_.