a keen sense and feeling of disgrace and dishonor. In proof of this I
appeal to well-known facts. There have been women tried in India for
offences, and acquitted, who would not survive the disgrace even of
acquittal. There have been Hindoo soldiers, condemned at a
court-martial, who have desired to be blown from the mouth of a cannon,
and have claimed rank and precedence at the last moment of their
existence. And yet these people are said to have no sense of dishonor!
Good God! that we should be under the necessity of proving, in this
place, all these things, and of disproving that all India was given in
slavery to this man!
But, my Lords, they will show you, they say, that Genghis Khân, Kouli
Khân, and Tamerlane destroyed ten thousand times more people in battle
than this man did. Good God! have they run mad? Have they lost their
senses in their guilt? Did they ever expect that we meant to compare
this man to Tamerlane, Genghis Khân, or Kouli Khân?--to compare a clerk
at a bureau, to compare a fraudulent bullock-contractor, (for we could
show that his first elementary malversations were in carrying on
fraudulent bullock-contracts; which contracts were taken from him with
shame and disgrace, and restored with greater shame and disgrace,) to
compare him with the conquerors of the world? We never said he was a
tiger and a lion: no, we have said he was a weasel and a rat. We have
said that he has desolated countries by the same means that plagues of
his description have produced similar desolations. We have said that he,
a fraudulent bullock-contractor, exalted to great and unmerited powers,
can do more mischief than even all the tigers and lions in the world. We
know that a swarm of locusts, although individually despicable, can
render a country more desolate than Genghis Khân or Tamerlane. When God
Almighty chose to humble the pride and presumption of Pharaoh, and to
bring him to shame, He did not effect His purpose with tigers and lions;
but He sent lice, mice, frogs, and everything loathsome and
contemptible, to pollute and destroy the country. Think of this, my
Lords, and of your listening here to these people's long account of
Tamerlane's camp of two hundred thousand persons, and of his building a
pyramid at Bagdad with the heads of ninety thousand of his prisoners!
We have not accused Mr. Hastings of being a great general, and abusing
his military powers: we know that he was nothing, at the best, but a
creature of the bureau, raised by peculiar circumstances to the
possession of a power by which incredible mischief might be done. We
have not accused him of the vices of conquerors: when we see him
signalized by any conquests, we may then make such an accusation; at
present we say that he has been trusted with power much beyond his
deserts, and that trust he has grossly abused.--But to proceed.
His counsel, according to their usual audacious manner, (I suppose they
imagine that they are counsel for Tamerlane, or for Genghis Khân,) have
thought proper to accuse the Managers for the Commons of wandering
[wantoning?] in all the fabulous regions of Indian mythology. My Lords,
the Managers are sensible of the dignity of their place; they have never
offered anything to you without reason. We are not persons of an age, of
a disposition, of a character, representative or natural, to _wanton_,
as these counsel call it,--that is, to invent fables concerning Indian
antiquity. That they are not ashamed of making this charge I do not
wonder. But we are not to be thus diverted from our course.
I have already stated to your Lordships a material circumstance of this
case, which I hope will never be lost sight of,--namely, the different
situation in which India stood under the government of its native
princes and its own original laws, and even under the _dominion_ of
Mahometan conquerors, from that in which it has stood under the
government of a series of tyrants, foreign and domestic, particularly of
Mr. Hastings, by whom it has latterly been oppressed and desolated. One
of the books which I have quoted was written by Mr. Halhed; and I shall
not be accused of wantoning in fabulous antiquity, when I refer to
another living author, who wrote from what he saw and what he well knew.
This author says,--"In truth, it would be almost cruelty to molest these
happy people" (speaking of the inhabitants of one of the provinces near
Calcutta); "for in this district are the only vestiges of the beauty,
purity, piety, regularity, equity, and strictness of the ancient
Hindostan government: here the property as well as the liberty of the
people is inviolate." My Lords, I do not refer you to this writer
because I think it necessary to our justification, nor from any fear
that your Lordships will not do us the justice to believe that we have
good authority for the facts which we state, and do not (as persons with
their licentious tongues dare to say) wanton in fabulous antiquity. I
quote the works of this author, because his observations and opinions
could not be unknown to Mr. Hastings, whose associate he was in some
acts, and whose adviser he appears to have been in that dreadful
transaction, the deposition of Cossim Ali Khân. This writer was
connected with the prisoner at your bar in bribery, and has charged him
with detaining his bribe. To this Mr. Hastings has answered, that he had
paid him long ago. How they have settled that corrupt transaction I know
not. I merely state all this to prove that we have not dealt in fabulous
history, and that, if anybody has dealt in falsehood, it is Mr.
Hastings's companion and associate in guilt, who must have known the
country, and who, however faulty he was in other respects, had in this
case no interest whatever in misrepresentation.
I might refer your Lordships, if it were necessary, to Scrafton's
account of that ancient government, in order to prove to you the happy
comparative state of that country, even under its former usurpers. Our
design, my Lords, in making such references, is not merely to disprove
the prisoner's defence, but to vindicate the rights and privileges of
the people of India. We wish to reinstate them in your sympathy. We
wish you to respect a people as respectable as yourselves,--a people who
know as well as you what is rank, what is law, what is property,--a
people who know how to feel disgrace, who know what equity, what reason,
what proportion in punishments, what security of property is, just as
well as any of your Lordships; for these are things which are secured to
them by laws, by religion, by declarations of all their sovereigns. And
what, my Lords, is opposed to all this? The practice of tyrants and
usurpers, which Mr. Hastings takes for his rule and guidance. He
endeavors to find deviations from legal government, and then instructs
his counsel to say that I have asserted there is no such thing as
arbitrary power in the East. Good God! if there was no such thing in any
other part of the world, Mr. Hastings's conduct might have convinced me
of the existence of arbitrary power, and have taught me much of its
mischief.
But, my Lords, we all know that there has been arbitrary power in
India,--that tyrants have usurped it,--and that, in some instances,
princes otherwise meritorious have violated the liberties of the people,
and have been lawfully deposed for such violation. I do not deny that
there are robberies on Hounslow Heath,--that there are such things as
forgeries, burglaries, and murders; but I say that these acts are
against law, and that whoever commit them commit illegal acts. When a
man is to defend himself against a charge of crime, it is not instances
of similar violation of law that is to be the standard of his defence. A
man may as well say, "I robbed upon Hounslow Heath, but hundreds robbed
there before me": to which I answer, "The law has forbidden you to rob
there; and I will hang you for having violated the law, notwithstanding
the long list of similar violations which you have produced as
precedents." No doubt princes have violated the law of this country:
they have suffered for it. Nobles have violated the law: their
privileges have not protected them from punishment. Common people have
violated the law: they have been hanged for it. I know no human being
exempt from the law. The law is the security of the people of England;
it is the security of the people of India; it is the security of every
person that is governed, and of every person that governs. There is but
one law for all, namely, that law which governs all law, the law of our
Creator, the law of humanity, justice, equity,--the Law of Nature and of
Nations. So far as any laws fortify this primeval law, and give it more
precision, more energy, more effect by their declarations, such laws
enter into the sanctuary, and participate in the sacredness of its
character. But the man who quotes as precedents the abuses of tyrants
and robbers pollutes the very fountain of justice, destroys the
foundations of all law, and thereby removes the only safeguard against
evil men, whether governors or governed,--the guard which prevents
governors from becoming tyrants, and the governed from becoming rebels.
* * * * *
I hope your Lordships will not think that I have unnecessarily occupied
your time in disproving the plea of arbitrary power, which has been
brought forward at our bar, has been repeated at your Lordships' bar,
and has been put upon the records of both Houses. I hope your Lordships
will not think that such monstrous doctrine should be passed over,
without all possible pains being taken to demonstrate its falsehood and
to reprobate its tendency. I have not spared myself in exposing the
principles avowed by the prisoner. At another time I will endeavor to
show you the manner in which he acted upon these principles. I cannot
command strength to proceed further at present; and you, my Lords,
cannot give me greater bodily strength than I have.
FOOTNOTES:
[95] Institutes of Timour, p. 165.
[96] Hedaya, Vol. II. p. 34.
[97] Hedaya, Vol. II. pp. 247, 248.
SPEECH
IN
GENERAL REPLY.
SECOND DAY: FRIDAY, MAY 30, 1794.
My lords,--On the last day of the sitting of this court, when I had the
honor of appearing before you by the order of my fellow Managers, I
stated to you their observations and my own upon two great points: one
the demeanor of the prisoner at the bar during his trial, and the other
the principles of his defence. I compared that demeanor with the
behavior of some of the greatest men in this kingdom, who have, on
account of their offences, been brought to your bar, and who have seldom
escaped your Lordships' justice. I put the decency, humility, and
propriety of the most distinguished men's behavior in contrast with the
shameless effrontery of this prisoner, who has presumptuously made a
recriminatory charge against the House of Commons, and answered their
impeachment by a counter impeachment, explicitly accusing them of
malice, oppression, and the blackest ingratitude.
My Lords, I next stated that this recriminatory charge consisted of two
distinct parts,--injustice and delay. To the injustice we are to answer
by the nature and proof of the charges which we have brought before you;
and to the delay, my Lords, we have answered in another place. Into one
of the consequences of the delay, the ruinous expense which the
prisoner complains of, we have desired your Lordships to make an
inquiry, and have referred you to facts and witnesses which will remove
this part of the charge.
With regard to ingratitude, there will be a proper time for
animadversion on this charge. For in considering the merits that are
intended to be set off against his crimes, we shall have to examine into
the nature of those merits, and to ascertain how far they are to
operate, either as the prisoner designs they shall operate in his favor,
as presumptive proofs that a man of such merits could not be guilty of
such crimes, or as a sort of set-off to be pleaded in mitigation of his
offences. In both of these lights we shall consider his services, and in
this consideration we shall determine the justice of his charge of
ingratitude.
My Lords, we have brought the demeanor of the prisoner before you for
another reason. We are desirous that your Lordships may be enabled to
estimate, from the proud presumption and audacity of the criminal at
your bar, when he stands before the most awful tribunal in the world,
accused by a body representing no less than the sacred voice of his
country, what he must have been when placed in the seat of pride and
power. What must have been the insolence of that man towards the natives
of India, who, when called here to answer for enormous crimes, presumes
to behave, not with the firmness of innocence, but with the audacity and
hardness of guilt!
It may be necessary that I should recall to your Lordships' recollection
the principles of the accusation and of the defence. Your Lordships will
bear in mind that the matters of fact are all either settled by
confession or conviction, and that the question now before you is no
longer an issue of fact, but an issue of law. The question is, what
degree of merit or demerit you are to assign by law to actions which
have been laid before you, and their truth acknowledged.
The principle being established that you are to decide upon an issue at
law, we examined by what law the prisoner ought to be tried; and we
preferred a claim which we do now solemnly prefer, and which we trust
your Lordships will concur with us in a laudable emulation to
establish,--a claim founded upon the great truths, that all power is
limited by law, and ought to be guided by discretion, and not by
arbitrary will,--that all discretion must be referred to the
conservation and benefit of those over whom power is exercised, and
therefore must be guided by rules of sound political morality.
We next contended, that, wherever existing laws were applicable, the
prisoner at your bar was bound by the laws and statutes of this kingdom,
as a British subject; and that, whenever he exercised authority in the
name of the Company, or in the name of his Majesty, or under any other
name, he was bound by the laws and statutes of this kingdom, both in
letter and spirit, so far as they were applicable to him and to his
case; and above all, that he was bound by the act to which he owed his
appointment, in all transactions with foreign powers, to act according
to the known recognized rules of the Law of Nations, whether these
powers were really or nominally sovereign, whether they were dependent
or independent.
The next point which we established, and which we now call to your
Lordships' recollection, is, that he was bound to proceed according to
the laws, rights, laudable customs, privileges, and franchises of the
country that he governed; and we contended that to such laws, rights,
privileges, and franchises the people of the country had a clear and
just claim.
Having established these points as the basis of Mr. Hastings's general
power, we contended that he was obliged by the nature of his relation,
as a servant to the Company, to be obedient to their orders at all
times, and particularly where he had entered into special covenants
regarding special articles of obedience.
These are the principles by which we have examined the conduct of this
man, and upon which we have brought him to your Lordships' bar for
judgment. This is our table of the law. Your Lordships shall now be
shown the table by which he claims to be judged. But I will first beg
your Lordships to take notice of the utter contempt with which he treats
all our acts of Parliament.
Speaking of the absolute sovereignty which he would have you believe is
exercised by the princes of India, he says, "The sovereignty which they
assumed it fell to my lot, very unexpectedly, to exert; and whether or
not such power, or powers of that nature, were delegated to me by any
provisions of any act of Parliament I confess myself too little of a
lawyer to pronounce," and so on. This is the manner in which he treats
an act of Parliament! In the place of acts of Parliament he substitutes
his own arbitrary will. This he contends is the sole law of the country
he governed, as laid down in what he calls the arbitrary Institutes of
Genghis Khân and Tamerlane. This arbitrary will he claims, to the
exclusion of the Gentoo law, the Mahometan law, and the law of his own
country. He claims the right of making his own will the sole rule of his
government, and justifies the exercise of this power by the examples of
Aliverdy Khân, Cossim Ali Khân, Sujah Dowlah Khân, and all those Khâns
who have rebelled against their masters, and desolated the countries
subjected to their rule. This, my Lords, is the law which he has laid
down for himself, and these are the examples which he has expressly told
the House of Commons he is resolved to follow. These examples, my Lords,
and the principles with which they are connected, without any softening
or mitigation, he has prescribed to you as the rule by which his conduct
is to be judged.
Another principle of the prisoner is, that, whenever the Company's
affairs are in distress, even when that distress proceeds from his own
prodigality, mismanagement, or corruption, he has a right to take for
the Company's benefit privately in his own name, with the future
application of it to their use reserved in his own breast, every kind of
bribe or corrupt present whatever.
I have now restated to your Lordships the maxims by which the prisoner
persists in defending himself, and the principles upon which we claim to
have him judged. The issue before your Lordships is a hundred times more
important than the cause itself, for it is to determine by what law or
maxims of law the conduct of governors is to be judged.
On one side, your Lordships have the prisoner declaring that the people
have no laws, no rights, no usages, no distinctions of rank, no sense of
honor, no property,--in short, that they are nothing but a herd of
slaves, to be governed by the arbitrary will of a master. On the other
side, we assert that the direct contrary of this is true. And to prove
our assertion we have referred you to the Institutes of Genghis Khân and
of Tamerlane; we have referred you to the Mahometan law, which is
binding upon all, from the crowned head to the meanest subject,--a law
interwoven with a system of the wisest, the most learned, and most
enlightened jurisprudence that perhaps ever existed in the world. We
have shown you, that, if these parties are to be compared together, it
is not the rights of the people which are nothing, but rather the rights
of the sovereign which are so. The rights of the people are everything,
as they ought to be, in the true and natural order of things. God forbid
that these maxims should trench upon sovereignty, and its true, just,
and lawful prerogative!--on the contrary, they ought to support and
establish them. The sovereign's rights are undoubtedly sacred rights,
and ought to be so held in every country in the world, because exercised
for the benefit of the people, and in subordination to that great end
for which alone God has vested power in any man or any set of men. This
is the law that we insist upon, and these are the principles upon which
your Lordships are to try the prisoner at your bar.
Let me remind your Lordships that these people lived under the laws to
which I have referred you, and that these laws were formed whilst we, I
may say, were in the forest, certainly before we knew what technical
jurisprudence was. These laws are allowed to be the basis and substratum
of the manners, customs, and opinions of the people of India; and we
contend that Mr. Hastings is bound to know them and to act by them; and
I shall prove that the very condition upon which he received power in
India was to protect the people in their laws and known rights. But
whether Mr. Hastings did know these laws, or whether, content with
credit gained by as base a fraud as was ever practised, he did not read
the books which Nobkissin paid for, we take the benefit of them: we know
and speak after knowledge of them. And although I believe his Council
have never read them, I should be sorry to stand in this place, if there
was one word and tittle in these books that I had not read over.
We therefore come here and declare to you that he is not borne out by
these Institutes, either in their general spirit or in any particular
passage to which he has had the impudence to appeal, in the assumption
of the arbitrary power which he has exercised. We claim, that, as our
own government and every person exercising authority in Great Britain is
bound by the laws of Great Britain, so every person exercising authority
in another country shall be subject to the laws of that country; since
otherwise they break the very covenant by which we hold our power there.
Even if these Institutes had been arbitrary, which they are not, they
might have been excused as the acts of conquerors. But, my Lords, he is
no conqueror, nor anything but what you see him,--a bad scribbler of
absurd papers, in which he can put no two sentences together without
contradiction. We know him in no other character than that of having
been a bullock-contractor for some years, of having acted fraudulently
in that capacity, and afterwards giving fraudulent contracts to others;
and yet I will maintain that the first conquerors of the world would
have been base and abandoned, if they had assumed such a right as he
dares to claim. It is the glory of all such great men to have for their
motto, _Parcere subjectis et debellare superbos_. These were men that
said they would recompense the countries which they had obtained through
torrents of blood, through carnage and violence, by the justice of their
institutions, the mildness of their laws, and the equity of their
government. Even if these conquerors had promulgated arbitrary
institutes instead of disclaiming them in every point, you, my Lords,
would never suffer such principles of defence to be urged here; still
less will you suffer the examples of men acting by violence, of men
acting by wrong, the example of a man who has become a rebel to his
sovereign in order that he should become the tyrant of his people, to be
examples for a British governor, or for any governor. We here
confidently protest against this mode of justification, and we maintain
that his pretending to follow these examples is in itself a crime. The
prisoner has ransacked all Asia for principles of despotism; he has
ransacked all the bad and corrupted part of it for tyrannical examples
to justify himself: and certainly in no other way can he be justified.
Having established the falsehood of the first principle of the
prisoner's defence, that sovereignty, wherever it exists in India,
implies in its nature and essence a power of exacting anything from the
subject, and disposing of his person and property, we now come to his
second assertion, that he was the true, full, and perfect representative
of that sovereignty in India.