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!
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!
Edmund Burke
?
?
?
208 IMPEACHMENT OF WARREN HASTINGS.
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 tiup
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 prop
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 209
erty 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 ally 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 t6
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,
VOL. XI. 14
? ? ? ? 210 IMPEACHMENT OF WARREN HASTINGS.
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 tell thousand times more
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 211
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 6f 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
? ? ? ? 212 IMPEACHMENT OF WARREN HASTINGS.
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. Halled 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 Khan particularly valued himself on irnproving 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 Khan or Emperor, without being first
duly elected by the princes lawfiully 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
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 213
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 Khan 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 Khan,
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 Khan, 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
? ? ? ? 214 IMPEACHMENT OF WARREN HASTINGS.
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 ullnjust 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 hlave
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. HIe 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 de
? ? ? ? . : SPEECH IN REPLY. - FIRST DAY. 215
cision 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. "
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 iritten 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 * Institutes of Timour, p. 165.
? ? ? ? 216 IMPEACHMENT OF WARREN HASTINGS.
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 HIedaya": 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 b6ok 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 jurispru
dence 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 Rawajul-Mulk, or custom and usage, the common law of
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 217
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. " *
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
* Hedaya, Vol. II. p. 34.
? ? ? ? 218 IMPEACHMENT OF WARREN HASTINGS.
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 au-. thor then proceeds to say, --" The word bdghee (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 Pattahal-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 m hoin 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, khzees, muftis, philosophers, public teachers, and
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 219
so forth; and who is just in all his dealings with
Mussulmalns: for whoever does not answer this description is not the right Imaurn; 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. " *
Aly 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 Mahornetan 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
* Hedaya, Vol. II. pp. 247, 248.
? ? ? ? 220' IMPEACHMENT OF WARREN HASTINGS.
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.
I shall now proceed to show your Lordships that
the people of India have 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 Khan, Kouli Khan, 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 Khan, or Kouli Khan? - to compare a clerk at a bureau, to compare a fraudulent
? ? ? ? SPEECH IN REPLY. FIRST DAY. 221
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 Khan 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 ble 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 accusa
? ? ? ? 222 IMPEACHMENT OF WARREN HASTINGS.
tion; 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 Khan,) 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
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 223
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 Khan. 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
? ? ? ? 224 IMPEACHMENT OF WARREN HASTINGS.
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,. jLst 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 vio
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 225
lated 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
VOL. XI. 15
? ? ? ? 226 IMPEACHMENT OF WARREN HASTINGS.
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.
? ? ? ? SP E C H
IN
GENERAL REPLY.
SECOND DAY: FRIDAY, MAY 30, 1794.
M Y 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 Lordsl-lips' 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 Commions, 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 conse
? ? ? ? 228 IMPEACHMENT OF WARREN HASTINGS
quences 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
? ? ? ? SPEECH IN REPLY. -- SECOND DAY. 229
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 prisoneL 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;o 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
? ? ? ? 230'IMPEACHMENT OF WARREN HASTINGS.
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 Khan and
? ? ? ? SPEECH IN REPLY. - SECOND DAY. 231
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 Khan, Cossim Ali Khan,
Sujah Dowlah. Khan, and all those Khans 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
? ? ? ? 232 IMPEACHMENT OF WARREN HASTINGS.
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
Khan and of Tamerlane; we have referred you to the
Mahometan law, which is binding upon all, from the
crowned head to th6 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
? ? ? ? SPEEISCH IN REPLY. -SECOND DAY. ,. 233
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 poweir 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 ill that capacity, and afterwards.
giving fraudulent contracts to others. ; and. yet I will
?
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 tiup
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 prop
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 209
erty 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 ally 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 t6
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,
VOL. XI. 14
? ? ? ? 210 IMPEACHMENT OF WARREN HASTINGS.
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 tell thousand times more
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 211
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 6f 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
? ? ? ? 212 IMPEACHMENT OF WARREN HASTINGS.
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. Halled 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 Khan particularly valued himself on irnproving 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 Khan or Emperor, without being first
duly elected by the princes lawfiully 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
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 213
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 Khan 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 Khan,
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 Khan, 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
? ? ? ? 214 IMPEACHMENT OF WARREN HASTINGS.
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 ullnjust 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 hlave
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. HIe 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 de
? ? ? ? . : SPEECH IN REPLY. - FIRST DAY. 215
cision 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. "
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 iritten 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 * Institutes of Timour, p. 165.
? ? ? ? 216 IMPEACHMENT OF WARREN HASTINGS.
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 HIedaya": 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 b6ok 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 jurispru
dence 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 Rawajul-Mulk, or custom and usage, the common law of
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 217
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. " *
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
* Hedaya, Vol. II. p. 34.
? ? ? ? 218 IMPEACHMENT OF WARREN HASTINGS.
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 au-. thor then proceeds to say, --" The word bdghee (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 Pattahal-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 m hoin 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, khzees, muftis, philosophers, public teachers, and
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 219
so forth; and who is just in all his dealings with
Mussulmalns: for whoever does not answer this description is not the right Imaurn; 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. " *
Aly 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 Mahornetan 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
* Hedaya, Vol. II. pp. 247, 248.
? ? ? ? 220' IMPEACHMENT OF WARREN HASTINGS.
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.
I shall now proceed to show your Lordships that
the people of India have 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 Khan, Kouli Khan, 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 Khan, or Kouli Khan? - to compare a clerk at a bureau, to compare a fraudulent
? ? ? ? SPEECH IN REPLY. FIRST DAY. 221
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 Khan 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 ble 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 accusa
? ? ? ? 222 IMPEACHMENT OF WARREN HASTINGS.
tion; 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 Khan,) 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
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 223
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 Khan. 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
? ? ? ? 224 IMPEACHMENT OF WARREN HASTINGS.
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,. jLst 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 vio
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 225
lated 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
VOL. XI. 15
? ? ? ? 226 IMPEACHMENT OF WARREN HASTINGS.
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.
? ? ? ? SP E C H
IN
GENERAL REPLY.
SECOND DAY: FRIDAY, MAY 30, 1794.
M Y 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 Lordsl-lips' 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 Commions, 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 conse
? ? ? ? 228 IMPEACHMENT OF WARREN HASTINGS
quences 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
? ? ? ? SPEECH IN REPLY. -- SECOND DAY. 229
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 prisoneL 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;o 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
? ? ? ? 230'IMPEACHMENT OF WARREN HASTINGS.
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 Khan and
? ? ? ? SPEECH IN REPLY. - SECOND DAY. 231
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 Khan, Cossim Ali Khan,
Sujah Dowlah. Khan, and all those Khans 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
? ? ? ? 232 IMPEACHMENT OF WARREN HASTINGS.
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
Khan and of Tamerlane; we have referred you to the
Mahometan law, which is binding upon all, from the
crowned head to th6 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
? ? ? ? SPEEISCH IN REPLY. -SECOND DAY. ,. 233
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 poweir 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 ill that capacity, and afterwards.
giving fraudulent contracts to others. ; and. yet I will
?
