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.
government of India, a government established by
conquest, and therefore not likely to be distinguished
by any marks of extraordinary mildness towards the
conquered.
Edmund Burke
All Asia is by him disfranchised at a
stroke. Its inhabitants have no rights, no laws, no
? ? ? ? 200 IMPEACHMENT OF WARREN HASTINGS.
liberties; their state is mean and depraved; they may
be fined for any purpose of court extravagance or prodigality, - or as Cheyt Sing was fined by him, not only
upon every war, but upon every pretence of war.
This is the account he gives of his power, and of
the people subject to the British government in India.
We deny that the act of Parliament gave him any
such power; we deny that the India Company gave
him any such power, or that they had ever any such
power to give; we even deny that there exists in all
the human race a power to make the government of
any state dependent upon individual will. We disclaim, we reject all such doctrines with disdain and
indignation; and we have brought them up to your
Lordships to be tried at your bar.
What must be the condition of the people of India,
governed, as they have been, by persons who maintain
these principles as maxims of government, and not as
occasional deviations caused by the irregular will of
man,. - principles by which the whole system of society is to be controlled, not by law, reason, or justice, but by the will of one man? Your Lordships will remark, that not only the
whole of the laws, rights, and usages, but the very
being of the people, are exposed to ruin: for Mr.
Hastings says, that the people may be fined, that
they may be exiled, that they may be imprisoned,
and that even their lives are dependent upon the
mere will of their foreign master; and that he, the
Company's Governor, exercised that will under the
authority of this country. Remark, my Lords, his
application of this doctrine. "I would," he says,
" have:kept Cheyt Sing from the consequences of this
dependence, by making him independent, and not in
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 201
any manner subjecting him to our government. The
moment he came into a state of dependence upon the
British government, all these evils attached upon him.
-It is," he adds, " disagreeable to me to exert such
powers; but I know they must be exerted; and I
declare there is no security from this arbitrary power,
but by having nothing to do with the British government. "
My Lords, the House of Commons has already well
considered what may be our future moral and political condition, when the persons who come from that
school of pride, insolence,- corruption, and tyranny are
more intimately mixed up with us of purer morals.
Nothing but contamination can be the result, nothing
but corruption can exist in this country, unless we
expunge this doctrine out of the very hearts and
souls of the people. It is not to the gang of plunderers and robbers of which I say this man is at the head,
that we are only, or indeed principally, to look. Every man in Great Britain will be contaminated and
must be corrupted, if you let loose among us whole
legions of men. , generation after generation, tainted
with these abominable vices, and avowing these detestable principles. It is, therefore, to preserve the
integrity and honor of the Commons of Great Britain that we have brought this man to your Lordships' bar.
When these matters were first explained to your
Lordships, and strongly enforced by abilities greater
than I can exert, there was something like compunction shown by the prisoner: but lie took the most
strange mode to cover his guilt. Upon the crossexamination of Major Scott, lie discovered all the engines of this Indian corruption. Mr. Hastings got
? ? ? ? 202 IMPEACHMENT OF WARREN HASTINGS.
that witness to swear that this defence of his, fiom
which the passages I have read to your Lordships are
extracted, was not his, but that it was the work of
his whole Council, composed of Mr. Middleton, Mr.
Shore, Mr. Halhed, Mr. Baber,- the whole body of
his Indian Cabinet Council; that this was their work,
and. not his; and that he disclaimed it, and therefore that it would be wrong to press it upon him.
Good God'! my Lords, what shall we say in this stage
of the business? The prisoner put in an elaborate
defence: he now disclaims that defence. He told us
that it was of his own writing, that he had been able
to compose it in five days; and he now gets five persons to contradict his own assertions, and to disprove on oath his most solemn declarations.
My Lords, this business appears still more alarming, when we find not only Mr. Hastings, but his
whole Council, engaged in it. I pray your Lordships
to observe, that Mr. Halhed, a person concerned with
Mr. Hastings in compiling a code of Gentoo laws, is
now found to be one of the persons to whom this
very defence is attributed which contains such detestable and abominable doctrines. But are we to consider the contents of this paper as the defence of
the prisoner or not? Will any one say, that, when
an answer is sworn to in Chancery, when an answer
is given here to an impeachment of the Commons,
or when a plea is made to an indictment, that it
is drawn by the defendant's counsel, and therefore is
not his? Did we not all hear him read this defence
in part at our bar? -- did we not see him hand it
to his secretary to have it read by his son? - did he
not then hear it read from end to end? -did not
he himself desire it to be printed, (for it was no
? ? ? ? SPEECH IN REPLY. -F1RST DAY. 203
act of ours,) and did he not superintend and revise
the press? - and has any breath but his own breathed
upon it? No, my Lords, the whole composition is
his, by writing or adoption; and never, till he found
it pressed him in this House, never, till your Lordships began to entertain the same abhorrence of it
that we did, did he disclaim it.
But mark another stage of the propagation of these
horrible principles. After having grounded upon
them the defence of his conduct against our charge,
and after he had got a person to forswear them for
him, and to prove him to have told falsehoods of the
grossest kind to the House of Commons, he again
adheres to this defence. The dog returned to his
vomit. After having vomited out his vile, bilious
stuff of arbitrary power, and afterwards denied it
to be his, he gets his counsel in this place to resort
to the loathsome mess again. They have thought
proper, my Lords, to enter into an extended series
of quotations from books of travellers, for the purpose of showing that despotism was the only principle
of government acknowledged in India, - that the people have no laws, no rights, no property movable or
immovable, no distinction of ranks, nor any sense of
disgrace. After citing a long line of travellers to
this effect, they quote Montesquieu as asserting the
same facts, declaring that the people of India had no
sense of honor, and were only sensible of the whip
as far as it produced corporal pain. They then proceed to state that it was a government of misrule, productive of no happiness to the people, and that it so continued until subverted by the free government of
Britain, - namely, the government that Mr. Hastings
describes as having himself exercised there.
? ? ? ? 204 IMPEACHMENT OF WARREN HASTINGS.
My Lords, if the prisoner can succeed in persuading us that these people have no laws, no rights, not
even the common sentiments and feeling of men, he
hopes your interest in them will be considerably lessened. He would persuade you that their sufferings
are much assuaged by their being nothing new, --
and that, having no right to property, to liberty, to
honor, or to life, they must be more pleased with the
little that is left to them than grieved for the much
that has been ravished from them by his cruelty and
his avarice. This inference makes it very necessary for me, before I proceed further, to make a few
remarks upon this part of the prisoner's conduct,
which your Lordships must. have already felt with
astonishment, perhaps with indignation. This man,
who passed twenty-five years in -India, who was fourteen years at the head of his government, master of
all the offices, master of all the registers and records,
master of all the lawyers and priests of all this
empire, from the highest to the lowest, instead of
producing to you the fruits of so many years' local
and official knowledge upon that subject, has called
out a long line of the rabble of travellers to inform
you concerning the objects of his own government.
That his learned counsel should be ignorant of those
things is a matter of course. That, if left to himself,
the person who has produced all this stuff should,
in pursuit of his darling arbitrary power, wander
without a guide, or with false guides, is quite natural. But your Lordships must have heard with astonishment, that, upon points of law relative to the tenure of lands, instead of producing any law document or authority on the usages and local customs
of the country, he has referred to officers in the
? ? ? ? SPEECH IN REPLY. . FIRST DAY. 205
army, colonels of artillery and engineers, to young
gentlemen just come from:school, not above three
or four years in the country. Good God! would not
one rather ha'e expected to hear him put all these
travellers to shame by the authority of a man who
had resided so long in the supreme situation of government, -to set aside all these wild, loose, casual, and silly observations' of travellers and theorists?
On the contrary, as if he was ignorant *of everything, as if he knew nothing of India, as if he had
dropped from the clouds, he cites the observations of
every: stranger who had been hurried in a palanquin
through the country, capable or incapable of observation, to prove to you the nature of the government, and of the power he had to exercise.
My Lords, the Commons of Great Britain are not
disposed to resort -to the ridiculous relations of travellers, or to the wild systems which ingenious men have thought proper to build on their authority. We
will take another mode. We will undertake to prove
the direct contrary of his assertions in every point
and particular. We undertake to do this, because
your Lordships know, and because the world knows,
that, if you go into a country where you suppose man
to be in a servile state,- Where, the despot excepted,
there is no one person who can lift up his head above
another, - where all are a set of vile, miserable
slaves, prostrate and confounded in a common servitude, having no descendible lands, no inheritance, nothing that makes man feel proud of himself, or
that gives him honor and distinction with others, -
this abject degradation will take from you that kind
of sympathy which naturally attaches you to men feeling like yourselves, to men who have hereditary dig
? ? ? ? 206 IMPEACHMENT OF WARREN HASTINGS.
nities to support, and lands of inheritance to maintain, as you peers have; you will, I say, no longer
have that feeling which you ought to have for the
sufferings of a people whom you suppose to be habituated to their sufferings and familiar with degradation. This makes it absolutely necessary for me to refute every one of these misrepresentations; and
whilst I am endeavoring to establish the rights of
these people, in order to show in what manner and
degree they have been violated, I trust that your Lordships will not think that the time is lost: certainly
I do not think that my labor will be misspent in endeavoring to bring these matters fully before you.
In determining to treat this subject at length, I
am also influenced by a strong sense of the evils
that have attended the propagation of these wild,
groundless, and pernicious opinions. A young man
goes to India before he knows much of his own country; but he cherishes in his breast, as I hope every
man will, a just and laudable partiality for the laws,
liberties, rights, and institutions of his own nation.
We all do this; and God forbid we should not prefer
our own to every other country in the world! but if
we go to India with an idea of the mean, degraded
state of the people that we are to govern, and especially if we go with these. impressions at an immature age, we know, that, according to the ordinary course of human nature, we shall not treat persons
well whom we have learnt to despise. We know
that people whom we suppose to have neither laws or
rights will not be treated by us as a people who have
laws and rights. This error, therefore, for our sake,
for your sake, for the sake of the Indian public, and
for the sake of all those who shall hereafter go in
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 207
any station to India, I think it necessary to disprove
in every point.
I mean to prove the direct contrary of everything
that has been said on- this subject by the prisoner's
counsel, or by himself. I mean to prove that the
people of India have laws, rights, and immunities;
that they have property, movable and immovable,
descendible as well as occasional; that they have
property held for life, and that they have it as well
secured to them by the laws of their country as any
property is secured in this country-; that they feel
for honor, not only as much as your Lordships can
feel, but with a more exquisite and poignant sense
than any people upon earth; and. that, when punishments are inflicted, it is not the lash they feel, but the disgrace: in short, I mean to prove that every
word which Montesquieu has taken from idle and itnconsiderate travellers is absolutely false.
The people of India are divided into three kinds:
the original natives of the country, commonly called
Gentoos; the descendants of the Persians and Arabians, who are Mahometans; and the descendants of the Moguls, who originally had a religion of their
own, but are now blended with the other inhabitants.
The primeval law of that country is the Gentoo
law; and I refer your Lordships to Mr. Halhed's
translation of that singular code, -a work which I
have read with all the care that such an extraordinary view of human affairs and human constitutions deserves. I do not know whether Mr. Hlalhed's compilation is in evidence before your Lordships, but
I do know that it is good authority on the Gentoo
law. Mr. Hastings, who instructed his counsel to
assert that the people have "no rights, no law,"
? ? ? ? 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.
stroke. Its inhabitants have no rights, no laws, no
? ? ? ? 200 IMPEACHMENT OF WARREN HASTINGS.
liberties; their state is mean and depraved; they may
be fined for any purpose of court extravagance or prodigality, - or as Cheyt Sing was fined by him, not only
upon every war, but upon every pretence of war.
This is the account he gives of his power, and of
the people subject to the British government in India.
We deny that the act of Parliament gave him any
such power; we deny that the India Company gave
him any such power, or that they had ever any such
power to give; we even deny that there exists in all
the human race a power to make the government of
any state dependent upon individual will. We disclaim, we reject all such doctrines with disdain and
indignation; and we have brought them up to your
Lordships to be tried at your bar.
What must be the condition of the people of India,
governed, as they have been, by persons who maintain
these principles as maxims of government, and not as
occasional deviations caused by the irregular will of
man,. - principles by which the whole system of society is to be controlled, not by law, reason, or justice, but by the will of one man? Your Lordships will remark, that not only the
whole of the laws, rights, and usages, but the very
being of the people, are exposed to ruin: for Mr.
Hastings says, that the people may be fined, that
they may be exiled, that they may be imprisoned,
and that even their lives are dependent upon the
mere will of their foreign master; and that he, the
Company's Governor, exercised that will under the
authority of this country. Remark, my Lords, his
application of this doctrine. "I would," he says,
" have:kept Cheyt Sing from the consequences of this
dependence, by making him independent, and not in
? ? ? ? SPEECH IN REPLY. -FIRST DAY. 201
any manner subjecting him to our government. The
moment he came into a state of dependence upon the
British government, all these evils attached upon him.
-It is," he adds, " disagreeable to me to exert such
powers; but I know they must be exerted; and I
declare there is no security from this arbitrary power,
but by having nothing to do with the British government. "
My Lords, the House of Commons has already well
considered what may be our future moral and political condition, when the persons who come from that
school of pride, insolence,- corruption, and tyranny are
more intimately mixed up with us of purer morals.
Nothing but contamination can be the result, nothing
but corruption can exist in this country, unless we
expunge this doctrine out of the very hearts and
souls of the people. It is not to the gang of plunderers and robbers of which I say this man is at the head,
that we are only, or indeed principally, to look. Every man in Great Britain will be contaminated and
must be corrupted, if you let loose among us whole
legions of men. , generation after generation, tainted
with these abominable vices, and avowing these detestable principles. It is, therefore, to preserve the
integrity and honor of the Commons of Great Britain that we have brought this man to your Lordships' bar.
When these matters were first explained to your
Lordships, and strongly enforced by abilities greater
than I can exert, there was something like compunction shown by the prisoner: but lie took the most
strange mode to cover his guilt. Upon the crossexamination of Major Scott, lie discovered all the engines of this Indian corruption. Mr. Hastings got
? ? ? ? 202 IMPEACHMENT OF WARREN HASTINGS.
that witness to swear that this defence of his, fiom
which the passages I have read to your Lordships are
extracted, was not his, but that it was the work of
his whole Council, composed of Mr. Middleton, Mr.
Shore, Mr. Halhed, Mr. Baber,- the whole body of
his Indian Cabinet Council; that this was their work,
and. not his; and that he disclaimed it, and therefore that it would be wrong to press it upon him.
Good God'! my Lords, what shall we say in this stage
of the business? The prisoner put in an elaborate
defence: he now disclaims that defence. He told us
that it was of his own writing, that he had been able
to compose it in five days; and he now gets five persons to contradict his own assertions, and to disprove on oath his most solemn declarations.
My Lords, this business appears still more alarming, when we find not only Mr. Hastings, but his
whole Council, engaged in it. I pray your Lordships
to observe, that Mr. Halhed, a person concerned with
Mr. Hastings in compiling a code of Gentoo laws, is
now found to be one of the persons to whom this
very defence is attributed which contains such detestable and abominable doctrines. But are we to consider the contents of this paper as the defence of
the prisoner or not? Will any one say, that, when
an answer is sworn to in Chancery, when an answer
is given here to an impeachment of the Commons,
or when a plea is made to an indictment, that it
is drawn by the defendant's counsel, and therefore is
not his? Did we not all hear him read this defence
in part at our bar? -- did we not see him hand it
to his secretary to have it read by his son? - did he
not then hear it read from end to end? -did not
he himself desire it to be printed, (for it was no
? ? ? ? SPEECH IN REPLY. -F1RST DAY. 203
act of ours,) and did he not superintend and revise
the press? - and has any breath but his own breathed
upon it? No, my Lords, the whole composition is
his, by writing or adoption; and never, till he found
it pressed him in this House, never, till your Lordships began to entertain the same abhorrence of it
that we did, did he disclaim it.
But mark another stage of the propagation of these
horrible principles. After having grounded upon
them the defence of his conduct against our charge,
and after he had got a person to forswear them for
him, and to prove him to have told falsehoods of the
grossest kind to the House of Commons, he again
adheres to this defence. The dog returned to his
vomit. After having vomited out his vile, bilious
stuff of arbitrary power, and afterwards denied it
to be his, he gets his counsel in this place to resort
to the loathsome mess again. They have thought
proper, my Lords, to enter into an extended series
of quotations from books of travellers, for the purpose of showing that despotism was the only principle
of government acknowledged in India, - that the people have no laws, no rights, no property movable or
immovable, no distinction of ranks, nor any sense of
disgrace. After citing a long line of travellers to
this effect, they quote Montesquieu as asserting the
same facts, declaring that the people of India had no
sense of honor, and were only sensible of the whip
as far as it produced corporal pain. They then proceed to state that it was a government of misrule, productive of no happiness to the people, and that it so continued until subverted by the free government of
Britain, - namely, the government that Mr. Hastings
describes as having himself exercised there.
? ? ? ? 204 IMPEACHMENT OF WARREN HASTINGS.
My Lords, if the prisoner can succeed in persuading us that these people have no laws, no rights, not
even the common sentiments and feeling of men, he
hopes your interest in them will be considerably lessened. He would persuade you that their sufferings
are much assuaged by their being nothing new, --
and that, having no right to property, to liberty, to
honor, or to life, they must be more pleased with the
little that is left to them than grieved for the much
that has been ravished from them by his cruelty and
his avarice. This inference makes it very necessary for me, before I proceed further, to make a few
remarks upon this part of the prisoner's conduct,
which your Lordships must. have already felt with
astonishment, perhaps with indignation. This man,
who passed twenty-five years in -India, who was fourteen years at the head of his government, master of
all the offices, master of all the registers and records,
master of all the lawyers and priests of all this
empire, from the highest to the lowest, instead of
producing to you the fruits of so many years' local
and official knowledge upon that subject, has called
out a long line of the rabble of travellers to inform
you concerning the objects of his own government.
That his learned counsel should be ignorant of those
things is a matter of course. That, if left to himself,
the person who has produced all this stuff should,
in pursuit of his darling arbitrary power, wander
without a guide, or with false guides, is quite natural. But your Lordships must have heard with astonishment, that, upon points of law relative to the tenure of lands, instead of producing any law document or authority on the usages and local customs
of the country, he has referred to officers in the
? ? ? ? SPEECH IN REPLY. . FIRST DAY. 205
army, colonels of artillery and engineers, to young
gentlemen just come from:school, not above three
or four years in the country. Good God! would not
one rather ha'e expected to hear him put all these
travellers to shame by the authority of a man who
had resided so long in the supreme situation of government, -to set aside all these wild, loose, casual, and silly observations' of travellers and theorists?
On the contrary, as if he was ignorant *of everything, as if he knew nothing of India, as if he had
dropped from the clouds, he cites the observations of
every: stranger who had been hurried in a palanquin
through the country, capable or incapable of observation, to prove to you the nature of the government, and of the power he had to exercise.
My Lords, the Commons of Great Britain are not
disposed to resort -to the ridiculous relations of travellers, or to the wild systems which ingenious men have thought proper to build on their authority. We
will take another mode. We will undertake to prove
the direct contrary of his assertions in every point
and particular. We undertake to do this, because
your Lordships know, and because the world knows,
that, if you go into a country where you suppose man
to be in a servile state,- Where, the despot excepted,
there is no one person who can lift up his head above
another, - where all are a set of vile, miserable
slaves, prostrate and confounded in a common servitude, having no descendible lands, no inheritance, nothing that makes man feel proud of himself, or
that gives him honor and distinction with others, -
this abject degradation will take from you that kind
of sympathy which naturally attaches you to men feeling like yourselves, to men who have hereditary dig
? ? ? ? 206 IMPEACHMENT OF WARREN HASTINGS.
nities to support, and lands of inheritance to maintain, as you peers have; you will, I say, no longer
have that feeling which you ought to have for the
sufferings of a people whom you suppose to be habituated to their sufferings and familiar with degradation. This makes it absolutely necessary for me to refute every one of these misrepresentations; and
whilst I am endeavoring to establish the rights of
these people, in order to show in what manner and
degree they have been violated, I trust that your Lordships will not think that the time is lost: certainly
I do not think that my labor will be misspent in endeavoring to bring these matters fully before you.
In determining to treat this subject at length, I
am also influenced by a strong sense of the evils
that have attended the propagation of these wild,
groundless, and pernicious opinions. A young man
goes to India before he knows much of his own country; but he cherishes in his breast, as I hope every
man will, a just and laudable partiality for the laws,
liberties, rights, and institutions of his own nation.
We all do this; and God forbid we should not prefer
our own to every other country in the world! but if
we go to India with an idea of the mean, degraded
state of the people that we are to govern, and especially if we go with these. impressions at an immature age, we know, that, according to the ordinary course of human nature, we shall not treat persons
well whom we have learnt to despise. We know
that people whom we suppose to have neither laws or
rights will not be treated by us as a people who have
laws and rights. This error, therefore, for our sake,
for your sake, for the sake of the Indian public, and
for the sake of all those who shall hereafter go in
? ? ? ? SPEECH IN REPLY. - FIRST DAY. 207
any station to India, I think it necessary to disprove
in every point.
I mean to prove the direct contrary of everything
that has been said on- this subject by the prisoner's
counsel, or by himself. I mean to prove that the
people of India have laws, rights, and immunities;
that they have property, movable and immovable,
descendible as well as occasional; that they have
property held for life, and that they have it as well
secured to them by the laws of their country as any
property is secured in this country-; that they feel
for honor, not only as much as your Lordships can
feel, but with a more exquisite and poignant sense
than any people upon earth; and. that, when punishments are inflicted, it is not the lash they feel, but the disgrace: in short, I mean to prove that every
word which Montesquieu has taken from idle and itnconsiderate travellers is absolutely false.
The people of India are divided into three kinds:
the original natives of the country, commonly called
Gentoos; the descendants of the Persians and Arabians, who are Mahometans; and the descendants of the Moguls, who originally had a religion of their
own, but are now blended with the other inhabitants.
The primeval law of that country is the Gentoo
law; and I refer your Lordships to Mr. Halhed's
translation of that singular code, -a work which I
have read with all the care that such an extraordinary view of human affairs and human constitutions deserves. I do not know whether Mr. Hlalhed's compilation is in evidence before your Lordships, but
I do know that it is good authority on the Gentoo
law. Mr. Hastings, who instructed his counsel to
assert that the people have "no rights, no law,"
? ? ? ? 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.
