ridiculous relations of travellers, or to the wild systems which
ingenious men have thought proper to build on their authority. We will
take another mode. We will undertake to prove the direct contrary of his
assertions in every point and particular. We undertake to do this,
because your Lordships know, and because the world knows, that, if you
go into a country where you suppose man to be in a servile
state,--where, the despot excepted, there is no one person who can lift
up his head above another,--where all are a set of vile, miserable
slaves, prostrate and confounded in a common servitude, having no
descendible lands, no inheritance, nothing that makes man feel proud of
himself, or that gives him honor and distinction with others,--this
abject degradation will take from you that kind of sympathy which
naturally attaches you to men feeling like yourselves, to men who have
hereditary dignities to support, and lands of inheritance to maintain,
as you peers have; you will, I say, no longer have that feeling which
you ought to have for the sufferings of a people whom you suppose to be
habituated to their sufferings and familiar with degradation. This makes
it absolutely necessary for me to refute every one of these
misrepresentations; and whilst I am endeavoring to establish the rights
of these people, in order to show in what manner and degree they have
been violated, I trust that your Lordships will not think that the time
is lost: certainly I do not think that my labor will be misspent in
endeavoring to bring these matters fully before you.
In determining to treat this subject at length, I am also influenced by
a strong sense of the evils that have attended the propagation of these
wild, groundless, and pernicious opinions. A young man goes to India
before he knows much of his own country; but he cherishes in his breast,
as I hope every man will, a just and laudable partiality for the laws,
liberties, rights, and institutions of his own nation. We all do this;
and God forbid we should not prefer our own to every other country in
the world! but if we go to India with an idea of the mean, degraded
state of the people that we are to govern, and especially if we go with
these impressions at an immature age, we know, that, according to the
ordinary course of human nature, we shall not treat persons well whom we
have learnt to despise. We know that people whom we suppose to have
neither laws or rights will not be treated by us as a people who have
laws and rights. This error, therefore, for our sake, for your sake, for
the sake of the Indian public, and for the sake of all those who shall
hereafter go in any station to India, I think it necessary to disprove
in every point.
I mean to prove the direct contrary of everything that has been said on
this subject by the prisoner's counsel, or by himself. I mean to prove
that the people of India have laws, rights, and immunities; that they
have property, movable and immovable, descendible as well as occasional;
that they have property held for life, and that they have it as well
secured to them by the laws of their country as any property is secured
in this country; that they feel for honor, not only as much as your
Lordships can feel, but with a _more_ exquisite and poignant sense than
any people upon earth; and that, when punishments are inflicted, it is
not the lash they feel, but the disgrace: in short, I mean to prove that
every word which Montesquieu has taken from idle and inconsiderate
travellers is absolutely false.
The people of India are divided into three kinds: the original natives
of the country, commonly called Gentoos; the descendants of the Persians
and Arabians, who are Mahometans; and the descendants of the Moguls, who
originally had a religion of their own, but are now blended with the
other inhabitants.
The primeval law of that country is the Gentoo law; and I refer your
Lordships to Mr. Halhed's translation of that singular code,--a work
which I have read with all the care that such an extraordinary view of
human affairs and human constitutions deserves. I do not know whether
Mr. Halhed's compilation is in evidence before your Lordships, but I do
know that it is good authority on the Gentoo law. Mr. Hastings, who
instructed his counsel to assert that the people have "no rights, no
law," ought to be well acquainted with this work, because he claimed
for a while the glory of the compilation, although Nobkissin, as your
Lordships remember, was obliged to pay the expense. This book, a
compilation of probably the most ancient laws in the world, if we except
the Mosaic, has in it the duty of the magistrate and the duty of all
ranks of subjects most clearly and distinctly ascertained; and I will
give up the whole cause, if there is, from one end to the other of this
code, any sort of arbitrary power claimed or asserted on the part of the
magistrate, or any declaration that the people have no rights of
property. No: it asserts the direct contrary.
First, the people are divided into classes and ranks, with more accuracy
of distinction than is used in this country, or in any other country
under heaven. Every class is divided into families, some of whom are
more distinguished and more honorable than others; and they all have
rights, privileges, and immunities belonging to them. Even in cases of
conquest, no confiscation is to take place. A Brahmin's estate comes by
descent to him; it is forever descendible to his heirs, if he has heirs;
and if he has none, it belongs to his disciples, and those connected
with him in the Brahminical caste. There are other immunities declared
to belong to this caste, in direct contradiction to what has been
asserted by the prisoner. In no case shall a Brahmin suffer death; in no
case shall the property of a Brahmin, male or female, be confiscated for
crime, or escheat for want of heirs. The law then goes on to other
castes, and gives to each its property, and distinguishes them with
great accuracy of discrimination.
Mr. Hastings says that there is no inheritable property among them. Now
you have only to look at page 27, chapter the second, the title of
which, is, _Of the Division of Inheritable Property_. There, after going
through all the nicety of pedigree, it is declared, that, "when a
father, or grandfather, a great-grandfather, or any relations of that
nature, decease, or lose their caste, or renounce the world, or are
desirous to give up their property, their sons, grandsons,
great-grandsons, and other natural heirs, may divide and assume their
glebe-lands, orchards, jewels, corals, clothes, furniture, cattle, and
birds, and all the estate, real and personal." My Lords, this law
recognizes this kind of property; it regulates it with the nicest
accuracy of distinction; it settles the descent of it in every part and
circumstance. It nowhere asserts (but the direct contrary is positively
asserted) that the magistrate has any power whatever over property. It
states that it is the magistrate's duty to protect it; that he is bound
to govern by law; that he must have a council of Brahmins to assist him
in every material act that he does: in short, my Lords, there is not
even a trace of arbitrary power in the whole system.
My Lords, I will mention one article, to let you see, in a very few
words, that these Gentoos not only have an inheritance, but that the law
has established a right of _acquiring_ possession in the property of
another by prescription. The passage stands thus:--"If there be a person
who is not a minor," (a man ceases to be a minor at fifteen years of
age,) "nor impotent, nor diseased, nor an idiot, nor so lame as not to
have power to walk, nor blind, nor one who, on going before a
magistrate, is found incapable of distinguishing and attending to his
own concerns, and who has not given to another person power to employ
and to use his property,--if, in the face of any such person, another
man has applied to his own use, during the space of twenty years, the
glebe-land or houses or orchards of that person, without let or
molestation from him, from the twenty-first year the property becomes
invested in the person so applying such things to his own use; and any
claim of the first person above mentioned upon such glebe-[land or?]
houses or orchards shall by no means stand good: but if the person
before mentioned comes under any of the circumstances herein before
described, his claim in that case shall stand good." Here you see, my
Lords, that possession shall by prescription stand good against the
claims of all persons who are not disqualified from making their claims.
I might, if necessary, show your Lordships that the highest magistrate
is subject to the law; that there is a case in which he is finable; that
they have established rules of evidence and of pleading, and, in short,
all the rules which have been formed in other countries to prevent this
very arbitrary power. Notwithstanding all this, the prisoner at the bar,
and his counsel, have dared to assert, in this sacred temple of justice,
in the presence of this great assembly, of all the bishops, of all the
peers, and of all the judges of this land, that the people of India have
no laws whatever.
I do not mean to trouble your Lordships with more extracts from this
book. I recommend it to your Lordships' reading,--when you will find,
that, so far from the magistrate having any power either to imprison
arbitrarily or to fine arbitrarily, the rules of fines are laid down
with ten thousand times more exactness than with us. If you here find
that the magistrate has any power to punish the people with arbitrary
punishment, to seize their property, or to disfranchise them of any
rights or privileges, I will readily admit that Mr. Hastings has laid
down good, sound doctrine upon this subject. There is his own book, a
compilation of their laws, which has in it not only good and excellent
positive rules, but a system of as enlightened jurisprudence, with
regard to the body and substance of it, as perhaps any nation ever
possessed,--a system which must have been composed by men of highly
cultivated understandings.
As to the travellers that have been quoted, absurd as they are in the
ground of their argument, they are not less absurd in their reasonings.
For, having first laid it down that there is no property, and that the
government is the proprietor of everything, they argue, inferentially,
that they have no laws. But if ever there were a people that seem to be
protected with care and circumspection from all arbitrary power, both in
the executive and judicial department, these are the people that seem to
be so protected.
I could show your Lordships that they are so sensible of honor, that
fines are levied and punishment inflicted according to the rank of the
culprit, and that the very authority of the magistrate is dependent on
their rank. That the learned counsel should be ignorant of these things
is natural enough. They are concerned in the gainful part of their
profession. If they know the laws of their own country, which I dare say
they do, it is not to be expected that they should know the laws of any
other. But, my Lords, it is to be expected that the prisoner should know
the Gentoo laws: for he not only cheated Nobkissin of his money to get
these laws translated, but he took credit for the publication of the
work as an act of public spirit, after shifting the payment from himself
by fraud and peculation. All this has been proved by the testimonies of
Mr. Auriol and Mr. Halhed before your Lordships.
We do not bring forward this book as evidence of guilt or innocence, but
to show the laws and usages of the country, and to prove the prisoner's
knowledge of them.
From the Gentoo we will proceed to the Tartarian government of India, a
government established by conquest, and therefore not likely to be
distinguished by any marks of extraordinary mildness towards the
conquered. The book before me will prove to your Lordships that the head
of this government (who is falsely supposed to have a despotic
authority) is absolutely elected to his office. Tamerlane was elected;
and Genghis Khân particularly valued himself on improving the laws and
institutions of his own country. These laws we only have imperfectly in
this book; but we are told in it, and I believe the fact, that he
forbade, under pain of death, any prince or other person to presume to
cause himself to be proclaimed Great Khân or Emperor, without being
first duly elected by the princes lawfully assembled in general diet. He
then established the privileges and immunities granted to the
Tunkawns,--that is, to the nobility and gentry of the country,--and
afterwards published most severe ordinances against governors who failed
in doing their duty, but principally against those who commanded in far
distant provinces. This prince was in this case, what I hope your
Lordships will be, a very severe judge of the governors of countries
remote from the seat of the government.
My Lords, we have in this book sufficient proof that a Tartarian
sovereign could not obtain the recognition of ancient laws, or establish
new ones, without the consent of his parliament; that he could not
ascend the throne without being duly elected; and that, when so elected,
he was bound to preserve the great in all their immunities, and the
people in all their rights, liberties, privileges, and properties. We
find these great princes restrained by laws, and even making wise and
salutary regulations for the countries which they conquered. We find
Genghis Khân establishing one of his sons in a particular
office,--namely, conservator of those laws; and he has ordered that they
should not only be observed in his time, but by all posterity; and
accordingly they are venerated at this time in Asia. If, then, this very
Genghis Khân, if Tamerlane, did not assume arbitrary power, what are you
to think of this man, so bloated with corruption, so bloated with the
insolence of unmerited power, declaring that the people of India have no
rights, no property, no laws,--that he could not be bound even by an
English act of Parliament,--that he was an arbitrary sovereign in India,
and could exact what penalties he pleased from the people, at the
expense of liberty, property, and even life itself? Compare this man,
this compound of pride and presumption, with Genghis Khân, whose
conquests were more considerable than Alexander's, and yet who made the
laws the rule of his conduct; compare him with Tamerlane, whose
Institutes I have before me. I wish to save your Lordships' time, or I
could show you in the life of this prince, that he, violent as his
conquests were, bloody as all conquests are, ferocious as a Mahometan
making his crusades for the propagation of his religion, he yet knew how
to govern his unjust acquisitions with equity and moderation. If any man
could be entitled to claim arbitrary power, if such a claim could be
justified by extent of conquest, by splendid personal qualities, by
great learning and eloquence, Tamerlane was the man who could have made
and justified the claim. This prince gave up all his time not employed
in conquests to the conversation of learned men. He gave himself to all
studies that might accomplish a great man. Such a man, I say, might, if
any may, claim arbitrary power. But the very things that made him great
made him sensible that he was but a man. Even in the midst of all his
conquests, his tone was a tone of humility; he spoke of laws as every
man must who knows what laws are; and though he was proud, ferocious,
and violent in the achievement of his conquests, I will venture to say
no prince ever established institutes of civil government more honorable
to himself than the Institutes of Timour. I shall be content to be
brought to shame before your Lordships, if the prisoner at your bar can
show me one passage where the assumption of arbitrary power is even
hinted at by this great conqueror. He declares that the nobility of
every country shall be considered as his brethren, that the people shall
be acknowledged as his children, and that the learned and the dervishes
shall be particularly protected. But, my Lords, what he particularly
valued himself upon I shall give your Lordships in his own words:--"I
delivered the oppressed from the hand of the oppressor; and after proof
of the oppression, whether on the property or the person, the decision
which I passed between them was agreeable to the sacred law; and I did
not cause any one person to suffer for the guilt of another."[95]
My Lords, I have only further to inform your Lordships that these
Institutes of Timour ought to be very well known to Mr. Hastings. He
ought to have known that this prince never claimed arbitrary power; that
the principles he adopted were to govern by law, to repress the
oppressions of his inferior governors, to recognize in the nobility the
respect due to their rank, and in the people the protection to which
they were by law entitled. This book was published by Major Davy, and
revised by Mr. White. The Major was an excellent Orientalist; he was
secretary to Mr. Hastings, to whom, I believe, he dedicated this book. I
have inquired of persons the most conversant with the Arabic and
Oriental languages, and they are clearly of opinion that there is
internal evidence to prove it of the age of Tamerlane; and he must be
the most miserable of critics, who, reading this work with attention,
does not see, that, if it was not written by this very great monarch
himself, it was at least written by some person in his court and under
his immediate inspection. Whether, therefore, this work be the
composition of Tamerlane, or whether it was written by some persons of
learning near him, through whom he meant to give the world a just idea
of his manners, maxims, and government, it is certainly as good
authority as Mr. Hastings's _Defence_, which he has acknowledged to have
been written by other people.
From the Tartarian I shall now proceed to the later Mahometan conquerors
of Hindostan: for it is fit that I should show your Lordships the
wickedness of pretending that the people of India have no laws or
rights. A great proportion of the people are Mahometans; and Mahometans
are so far from having no laws or rights, that, when you name a
Mahometan, you name a man governed by law and entitled to protection.
Mr. Hastings caused to be published, and I am obliged to him for it, a
book called "The Hedaya": it is true that he has himself taken credit
for the work, and robbed Nobkissin of the money to pay for it; but the
value of a book is not lessened because a man stole it. Will you
believe, my Lords, that a people having no laws, no rights, no property,
no honor, would be at the trouble of having so many writers on
jurisprudence? And yet there are, I am sure, at least a thousand eminent
Mahometan writers upon law, who have written far more voluminous works
than are known in the Common Law of England, and I verily believe more
voluminous than the writings of the Civilians themselves. That this
should be done by a people who have no property is so perfectly
ridiculous as scarcely to require refutation; but I shall endeavor to
refute it, and without troubling you a great deal.
First, then, I am to tell you that the Mahometans are a people amongst
whom the science of jurisprudence is much studied and cultivated; that
they distinguish it into the law of the _Koran_ and its authorized
commentaries,--into the _Fetwah_, which is the judicial judgments and
reports of adjudged cases,--into the _Canon_, which is the regulations
made by the emperor for the sovereign authority in the government of
their dominions,--and, lastly, into the _Rawaj-ul-Mulk_, or custom and
usage, the common law of the country, which prevails independent of any
of the former.
In regard to punishments being arbitrary, I will, with your Lordships'
permission, read a passage which will show you that the magistrate is a
responsible person. "If a supreme ruler, such as the Caliph for the time
being, commit any offence punishable by law, such as whoredom, theft, or
drunkenness, he is not subject to any punishment; but yet if he commit
murder, he is subject to the law of retaliation, and he is also
accountable in matters of property: because _punishment_ is a right of
God, the infliction of which is committed to the Caliph, or other
supreme magistrate, and to none else; and he cannot inflict punishment
upon himself, as in this there is no advantage, because the good
proposed in punishment is that it may operate as a warning to deter
mankind from sin, and this is not obtained by a person's inflicting
punishment upon himself, contrary to the rights of the _individual_,
such as the laws of _retaliation_ and of _property_, the penalties of
which may be exacted of the Caliph, as the claimant of right may obtain
satisfaction, either by the Caliph impowering him to exact his right
from himself, or by the claimant appealing for assistance to the
collective body of Mussulmans."[96]
Here your Lordships see that the Caliph, who is a magistrate of the
highest authority which can exist among the Mahometans, where property
or life is concerned has no arbitrary power, but is responsible just as
much as any other man.
I am now to inform your Lordships that the sovereign can raise no taxes.
The imposing of a tribute upon a Mussulman, without his previous
consent, is impracticable. And so far from all property belonging to the
sovereign, the public treasure does not belong to him. It is declared to
be the common property of all Mahometans. This doctrine is laid down in
many places, but particularly in the 95th page of the second volume of
Hamilton's Hedaya.
Mr. Hastings has told you what a sovereign is, and what sovereignty is,
all over India; and I wish your Lordships to pay particular attention to
this part of his defence, and to compare Mr. Hastings's idea of
sovereignty with the declaration of the Mahometan law. The tenth chapter
of these laws treats of rebellion, which is defined an act of warfare
against the sovereign. You are there told who the sovereign is, and how
many kinds of rebels there are. The author then proceeds to say,--"The
word _bâghee_ (rebellion), in its literal sense, means prevarication,
also, injustice and tyranny; in the language of the law it is
particularly applied to injustice, namely, withdrawing from obedience to
the rightful Imaum (as appears in the _Fattahal-Kadeen_). By the
rightful Imaum is understood a person in whom all the qualities
essential to magistracy are united, such as Islamism, freedom, sanity of
intellect, and maturity of age,--and who has been elected into his
office by any tribe of Mussulmans, with their general consent; whose
view and intention is the advancement of the true religion and the
strengthening of the Mussulmans, and under whom the Mussulmans enjoy
security in person and property; one who levies tithe and tribute
according to law; who out of the public treasury pays what is due to
learned men, preachers, kâzees, muftis, philosophers, public teachers,
and so forth; and who is just in all his dealings with Mussulmans: for
whoever does not answer this description is not the right Imaum; whence
it is not incumbent to support such a one; but rather it is incumbent to
oppose him and make war upon him, until such time as he either adopt a
proper mode of conduct or be slain."[97]
My Lords, is this a magistrate of the same description as the sovereign
delineated by Mr. Hastings? This man must be elected by the general
consent of Mussulmans; he must be a protector of the person and property
of his subjects; a right of resistance is directly established by law
against him, and even the duty of resistance is insisted upon. Am I, in
praising this Mahometan law, applauding the principle of elective
sovereignty? No, my Lords, I know the mischiefs which have attended it;
I know that it has shaken the thrones of most of the sovereigns of the
Mussulman religion; but I produce the law as the clearest proof that
such a sovereign cannot be supposed to have an arbitrary power over the
property and persons of those who elect him, and who have an
acknowledged right to resist and dethrone him, if he does not afford
them protection.
I have now gone through what I undertook to prove,--that Mr. Hastings,
with all his Indian Council, who have made up this volume of arbitrary
power, are not supported by the laws of the Moguls, by the laws of the
Gentoos, by the Mahometan laws, or by any law, custom, or usage which
has ever been recognized as legal and valid.
But, my Lords, the prisoner defends himself by example; and, good God!
what are the examples which he has chosen? Not the local usages and
constitutions of Oude or of any other province; not the general practice
of a respectable emperor, like Akbar, which, if it would not fatigue
your Lordships, I could show to be the very reverse of this man's. No,
my Lords, the prisoner, his learned counsel here, and his unlearned
Cabinet Council, who wrote this defence, have ransacked the tales of
travellers for examples, and have selected materials from that mass of
loose remarks and crude conceptions, to prove that the natives of India
have neither rights, laws, orders, or distinction.