Chapter XXIV: Appendix: To the (5)

If ever this nation stood in a situation of glory throughout Asia, it was in that moment. But, as I have said, some material errors and mistakes were committed. After the formation of this plan, Lord Clive unfortunately did not stay long enough in the country to give consistency to the measures of reformation he had undertaken, but rapidly returned to England; and after his departure, the government that continued had not vigor or authority to support the settlement then made, and considerable abuses began to prevail in every quarter. Another capital period in our history here commences. Those who succeeded (though I believe one of them was one of the honestest men that ever served the Company, I mean Governor Verelst) had not weight enough to poise the system of the service, and consequently many abuses and grievances again prevailed. Supervisors were appointed to every district, as a check on the native collectors, and to report every abuse as it should arise. But they who were appointed to redress grievances were themselves accused of being guilty of them. However, the disorders were not of that violent kind which preceded Mr. Hastings's departure, nor such as followed his return: no mercenary wars, no mercenary revolutions, no extirpation of nations, no violent convulsions in the revenue, no subversion of ancient houses, no general sales of any descriptions of men,--none of these, but certainly such grievances as made it necessary for the Company to send out another commission in 1769, with instructions pointing out the chief abuses. It was composed of Mr. Vansittart, Mr. Ford, and Mr. Scrafton. The unfortunate end of that commission is known to all the world; but I mention it in order to state that the receipt of presents was considered as one of the grievances which then prevailed in India, and that the supervisors under that commission were ordered upon no account whatever to take presents. Upon the unfortunate catastrophe which happened, the Company was preparing to send out another for the rectification of these grievances, when Parliament thought it necessary to supersede that commission, to take the matter into their own hands, and to appoint another commission in a Parliamentary way (of which Mr. Hastings was one) for the better government of that country. Mr. Hastings, as I must mention to your Lordships, soon after the deposition and restoration of Jaffier Ali Khan, and before Lord Clive arrived, quitted for a while the scene in which he had been so mischievously employed, and returned to England to strengthen himself by those cabals which again sent him out with new authority to pursue the courses which were the natural sequel to his former proceedings. He returned to India with great power, indeed,--first to a seat in Council at Fort St. George, and from thence to succeed to the Presidency of Fort William. On him the Company placed their chief reliance. Happy had it been for them, happy for India and for England, if his conduct had been such as to spare your Lordships and the Commons the exhibition of this day!

When this government, with Mr. Hastings at the head of it, was settled, Moorshedabad did still continue the seat of the native government, and of all the collections. Here the Company was not satisfied with placing a Resident at the durbar, which was the first step to our assuming the government in that country. These steps must be traced by your Lordships; for I should never have given you this trouble, if it was not necessary to possess you clearly of the several progressive steps by which the Company's government came to be established and to supersede the native. The next step was the appointment of supervisors in every province, to oversee the native collector. The third was to establish a general Council of Revenue at Moorshedabad, to superintend the great steward, Mahomed Reza Khan. In 1772 that Council by Mr. Hastings was overturned, and the whole management of the revenue brought to Calcutta. Mahomed Reza Khan, by orders of the Company, was turned out of all his offices, and turned out for reasons and principles which your Lordships will hereafter see; and at last the dewanny was entirely taken out of the native hands, and settled in the Supreme Council and Presidency itself in Calcutta; and so it remained until the year 1781, when Mr. Hastings made another revolution, took it out of the hands of the Supreme Council, in which the orders of the Company, an act of Parliament, and their own act had vested it, and put it into a subordinate council: that is, it was entirely vested in himself.

* * * * *

Now your Lordships see the whole of the revolutions. I have stated them, I trust, with perspicuity,--stated the grounds and principles upon which they were made,--stated the abuses that grew upon them,--and that every revolution produced its abuse. You saw the native government vanish by degrees, until it was reduced to a situation fit for nothing but to become a private perquisite, as it has been, to Mr. Hastings, and to be granted to whom he pleased. The English government succeeded, at the head of which Mr. Hastings was placed by an act of Parliament, having before held the office of President of the Council,--the express object of both these appointments being to redress grievances; and within these two periods of his power, as President and Governor-General, were those crimes committed of which he now stands accused. All this history is merely by way of illustration: his crimination begins from his nomination to the Presidency; and we are to consider how he comported himself in that station, and in his office of Governor-General.

The first thing, in considering the merits or demerits of any governor, is to have some test by which they are to be tried. And here, my Lords, we conceive, that, when a British governor is sent abroad, he is sent to pursue the good of the people as much as possible in the spirit of the laws of this country, which in all respects intend their conservation, their happiness, and their prosperity. This is the principle upon which Mr. Hastings was bound to govern, and upon which he is to account for his conduct here. His rule was, what a British governor, intrusted with the power of this country, was bound to do or to forbear. If he has performed and if he has abstained as he ought, dismiss him honorably acquitted from your bar; otherwise condemn him. He may resort to other principles and to other maxims; but this country will force him to be tried by its laws. The law of this country recognizes that well-known crime called misconduct in office; it is a head of the law of England, and, so far as inferior courts are competent to try it, may be tried in them. Here your Lordships' competence is plenary: you are fully competent both to inquire into and to punish the offence.

And, first, I am to state to your Lordships, by the direction of those whom I am bound to obey, the principles on which Mr. Hastings declares he has conducted his government,--principles which he has avowed, first in several letters written to the East India Company, next in a paper of defence delivered to the House of Commons explicitly, and more explicitly in his defence before your Lordships. Nothing in Mr. Hastings's proceedings is so curious as his several defences; and nothing in the defences is so singular as the principles upon which he proceeds. Your Lordships will have to decide not only upon a large, connected, systematic train of misdemeanors, but an equally connected system of principles and maxims of government, invented to justify those misdemeanors. He has brought them forward and avowed them in the face of day. He has boldly and insultingly thrown them in the face of the representatives of a free people, and we cannot pass them by without adopting them. I am directed to protest against those grounds and principles upon which he frames his defence; for, if those grounds are good and valid, they carry off a great deal at least, if not entirely, the foundation of our charge.

My Lords, we contend that Mr. Hastings, as a British governor, ought to govern on British principles, not by British forms,--God forbid!--for if ever there was a case in which the letter kills and the spirit gives life, it would be an attempt to introduce British forms and the substance of despotic principles together into any country. No! We call for that spirit of equity, that spirit of justice, that spirit of protection, that spirit of lenity, which ought to characterize every British subject in power; and on these, and these principles only, he will be tried.

But he has told your Lordships, in his defence, that actions in Asia do not bear the same moral qualities which the same actions would bear in Europe.

My Lords, we positively deny that principle. I am authorized and called upon to deny it. And having stated at large what he means by saying that the same actions have not the same qualities in Asia and in Europe, we are to let your Lordships know that these gentlemen have formed a plan of _geographical morality_, by which the duties of men, in public and in private situations, are not to be governed by their relation to the great Governor of the Universe, or by their relation to mankind, but by climates, degrees of longitude, parallels, not of life, but of latitudes: as if, when you have crossed the equinoctial, all the virtues die, as they say some insects die when they cross the line; as if there were a kind of baptism, like that practised by seamen, by which they unbaptize themselves of all that they learned in Europe, and after which a new order and system of things commenced.

This geographical morality we do protest against; Mr. Hastings shall not screen himself under it; and on this point I hope and trust many words will not be necessary to satisfy your Lordships. But we think it necessary, in justification of ourselves, to declare that the laws of morality are the same everywhere, and that there is no action which would pass for an act of extortion, of peculation, of bribery, and of oppression in England, that is not an act of extortion, of peculation, of bribery, and oppression in Europe, Asia, Africa, and all the world over. This I contend for not in the technical forms of it, but I contend for it in the substance.

Mr. Hastings comes before your Lordships not as a British governor answering to a British tribunal, but as a subahdar, as a bashaw of three tails. He says, "I had an arbitrary power to exercise: I exercised it. Slaves I found the people: slaves they are,--they are so by their constitution; and if they are, I did not make it for them. I was unfortunately bound to exercise this arbitrary power, and accordingly I did exercise it. It was disagreeable to me, but I did exercise it; and no other power can be exercised in that country." This, if it be true, is a plea in bar. But I trust and hope your Lordships will not judge by laws and institutions which you do not know, against those laws and institutions which you do know, and under whose power and authority Mr. Hastings went out to India. Can your Lordships patiently hear what _we_ have heard with indignation enough, and what, if there were nothing else, would call these principles, as well as the actions which are justified on such principles, to your Lordships' bar, that it may be known whether the peers of England do not sympathize with the Commons in their detestation of such doctrine? Think of an English governor tried before you as a British subject, and yet declaring that he governed on the principles of arbitrary power! His plea is, that he did govern there on arbitrary and despotic, and, as he supposes, Oriental principles. And as this plea is boldly avowed and maintained, and as, no doubt, all his conduct was perfectly correspondent to these principles, the principles and the conduct must be tried together.

If your Lordships will now permit me, I will state one of the many places in which he has avowed these principles as the basis and foundation of all his conduct. "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. I only know that the acceptance of the sovereignty of Benares, &c., is not acknowledged or admitted by any act of Parliament; and yet, by the particular interference of the majority of the Council, the Company is clearly and indisputably seized of that sovereignty." So that this gentleman, because he is not a lawyer, nor clothed with those robes which distinguish, and well distinguish, the learning of this country, is not to know anything of his duty; and whether he was bound by any, or what act of Parliament, is a thing he is not lawyer enough to know! Now, if your Lordships will suffer the laws to be broken by those who are not of the long robe, I am afraid those of the long robe will have none to punish but those of their own profession. He therefore goes to a law he is better acquainted with,--that is, the law of arbitrary power and force, if it deserves to be called by the name of law. "If, therefore," says he, "the _sovereignty_ of Benares, as ceded to us by the Vizier, have _any rights whatever_ annexed to it, and be not a mere empty word without meaning, those rights must be such as are held, countenanced, and established by the law, custom, and usage of the Mogul empire, and not by the provisions of any British act of Parliament hitherto enacted. _Those rights_, and none other, I have been the involuntary instrument of enforcing. And if any future act of Parliament shall positively or by implication tend to annihilate those very rights, or their exertion as I have exerted them, I much fear that the boasted sovereignty of Benares, which was held up as an acquisition, almost obtruded on the Company against my consent and opinion, (for I acknowledge that even then I foresaw many difficulties and inconveniences in its future exercise,)--I fear, I say, that this sovereignty will be found a burden instead of a benefit, a heavy clog rather than a precious gem to its present possessors: I mean, unless the whole of our territory in that quarter shall be rounded and made an uniform compact body by one grand and systematic arrangement.--such an arrangement as shall do away all the mischiefs, doubts, and inconveniences (both to the governors and the governed) arising from the variety of tenures, rights, and claims in all cases of landed property and feudal jurisdiction in India, from the informality, invalidity, and instability of all engagements in so divided and unsettled a state of society, and from the unavoidable anarchy and confusion of different laws, religions, and prejudices, moral, civil, and political, all jumbled together in one unnatural and discordant mass.

"Every part of Hindostan has been constantly exposed to these and similar disadvantages ever since the Mahomedan conquests. The Hindoos, who never incorporated with their conquerors, were kept in order only by the strong hand of power. The constant necessity of similar exertions would increase at once their energy and extent; so that rebellion itself is the parent and promoter of despotism. Sovereignty in India implies nothing else. For I know not how we can form an estimate of its powers, but from its visible effects; and those are everywhere the same, from Cabool to Assam. The whole history of Asia is nothing more than precedents to prove the invariable exercise of arbitrary power. To all this I strongly alluded in the minutes I delivered in Council, when the treaty with the new Vizier was on foot in 1775; and I wished to make Cheyt Sing independent, because in India dependence included a thousand evils, many of which I enumerated at that time, and they are entered in the ninth clause of the first section of this charge. I knew the powers with which an Indian sovereignty is armed, and the dangers to which tributaries are exposed. I knew, that, from the history of Asia, and from the very nature of mankind, the subjects of a despotic empire are always vigilant for the moment to rebel, and the sovereign is ever jealous of rebellious intentions. A zemindar is an Indian subject, and as such exposed to the common lot of his fellows. _The mean and depraved state of a mere zemindar_ is therefore this very dependence above mentioned on a despotic government, this very proneness to shake off his allegiance, and this very exposure to continual danger from his sovereign's jealousy, which are consequent on the political state of Hindostanic governments. Bulwant Sing, if he had been, and Cheyt Sing, as long as he was a zemindar, stood exactly in this _mean and depraved state_ by the constitution of his country. I did not make it for him, but would have secured him from it. Those who made him a zemindar entailed upon him the consequences of so mean and depraved a tenure. Aliverdy Khan and Cossim Ali fined all their zemindars on the necessities of war, and on every pretence either of court necessity or court extravagance."

My Lords, you have now heard the principles on which Mr. Hastings governs the part of Asia subjected to the British empire. You have heard his opinion of the mean and depraved state of those who are subject to it. You have heard his lecture upon arbitrary power, which he states to be the constitution of Asia. You hear the application he makes of it; and you hear the practices which he employs to justify it, and who the persons were on whose authority he relies, and whose example he professes to follow. In the first place, your Lordships will be astonished at the audacity with which he speaks of his own administration, as if he was reading a speculative lecture on the evils attendant upon some vicious system of foreign government in which he had no sort of concern whatsoever. And then, when in this speculative way he has established, or thinks he has, the vices of the government, he conceives he has found a sufficient apology for his own crimes. And if he violates the most solemn engagements, if he oppresses, extorts, and robs, if he imprisons, confiscates, banishes at his sole will and pleasure, when we accuse him for his ill-treatment of the people committed to him as a sacred trust, his defence is,--"To be robbed, violated, oppressed, is their privilege. Let the constitution of their country answer for it. I did not make it for them. Slaves I found them, and as slaves I have treated them. I was a despotic prince. Despotic governments are jealous, and the subjects prone to rebellion. This very proneness of the subject to shake off his allegiance exposes him to continual danger from his sovereign's jealousy, and this is consequent on the political state of Hindostanic governments." He lays it down as a rule, that despotism is the genuine constitution of India, that a disposition to rebellion in the subject or dependent prince is the necessary effect of this despotism, and that jealousy and its consequences naturally arise on the part of the sovereign,--that the government is everything, and the subject nothing,--that the great landed men are in a mean and depraved state, and subject to many evils.

Such a state of things, if true, would warrant conclusions directly opposite to those which Mr. Hastings means to draw from them, both argumentatively and practically, first to influence his conduct, and then to bottom his defence of it.

Perhaps you will imagine that the man who avows these principles of arbitrary government, and pleads them as the justification of acts which nothing else can justify, is of opinion that they are on the whole good for the people over whom they are exercised. The very reverse. He mentions them as horrible things, tending to inflict on the people a thousand evils, and to bring on the ruler a continual train of dangers. Yet he states, that your acquisitions in India will be a detriment instead of an advantage, if you destroy arbitrary power, unless you can reduce all the religious establishments, all the civil institutions, and tenures of land, into one uniform mass,--that is, unless by acts of arbitrary power you extinguish all the laws, rights, and religious principles of the people, and force them to an uniformity, and on that uniformity build a system of arbitrary power.

But nothing is more false than that despotism is the constitution of any country in Asia that we are acquainted with. It is certainly not true of any Mahomedan constitution. But if it were, do your Lordships really think that the nation would bear, that any human creature would bear, to hear an English governor defend himself on such principles? or, if he can defend himself on such principles, is it possible to deny the conclusion, that no man in India has a security for anything, but by being totally independent of the British government? Here he has declared his opinion, that he is a despotic prince, that he is to use arbitrary power; and of course all his acts are covered with that shield. "_I know_," says he, "_the constitution of Asia only from its practice_." Will your Lordships submit to hear the corrupt practices of mankind made the principles of government? No! it will be your pride and glory to teach men intrusted with power, that, in their use of it, they are to conform to principles, and not to draw their principles from the corrupt practice of any man whatever. Was there ever heard, or could it be conceived, that a governor would dare to heap up all the evil practices, all the cruelties, oppressions, extortions, corruptions, briberies, of all the ferocious usurpers, desperate robbers, thieves, cheats, and jugglers, that ever had office, from one end of Asia to another, and, consolidating all this mass of the crimes and absurdities of barbarous domination into one code, establish it as the whole duty of an English governor? I believe that till this time so audacious a thing was never attempted by man.

_He_ have arbitrary power! My Lords, the East India Company have not arbitrary power to give him; the king has no arbitrary power to give him; your Lordships have not; nor the Commons, nor the whole legislature. We have no arbitrary power to give, because arbitrary power is a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will; much less can one person be governed by the will of another. We are all born in subjection,--all born equally, high and low, governors and governed, in subjection to one great, immutable, preexistent law, prior to all our devices and prior to all our contrivances, paramount to all our ideas and all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir.

This great law does not arise from our conventions or compacts; on the contrary, it gives to our conventions and compacts all the force and sanction they can have. It does not arise from our vain institutions. Every good gift is of God; all power is of God; and He who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practised upon any less solid foundation than the power itself. If, then, all dominion of man over man is the effect of the Divine disposition, it is bound by the eternal laws of Him that gave it, with which no human authority can dispense,--neither he that exercises it, nor even those who are subject to it; and if they were mad enough to make an express compact that should release their magistrate from his duty, and should declare their lives, liberties, and properties dependent upon, not rules and laws, but his mere capricious will, that covenant would be void. The acceptor of it has not his authority increased, but he has his crime doubled. Therefore can it be imagined, if this be true, that He will suffer this great gift of government, the greatest, the best, that was ever given by God to mankind, to be the plaything and the sport of the feeble will of a man, who, by a blasphemous, absurd, and petulant usurpation, would place his own feeble, contemptible, ridiculous will in the place of the Divine wisdom and justice?

The title of conquest makes no difference at all. No conquest can give such a right; for conquest, that is, force, cannot convert its own injustice into a just title, by which it may rule others at its pleasure. By conquest, which is a more immediate designation of the hand of God, the conqueror succeeds to all the painful duties and subordination to the power of God which belonged to the sovereign whom he has displaced, just as if he had come in by the positive law of some descent or some election. To this at least he is strictly bound: he ought to govern them as he governs his own subjects. But every wise conqueror has gone much further than he was bound to go. It has been his ambition and his policy to reconcile the vanquished to his fortune, to show that they had gained by the change, to convert their momentary suffering into a long benefit, and to draw from the humiliation of his enemies an accession to his own glory. This has been so constant a practice, that it is to repeat the histories of all politic conquerors in all nations and in all times; and I will not so much distrust your Lordships' enlightened and discriminating studies and correct memories as to allude to one of them. I will only show you that the Court of Directors, under whom he served, has adopted that idea,--that they constantly inculcated it to him, and to all the servants,--that they run a parallel between their own and the native government, and, supposing it to be very evil, did not hold it up as an example to be followed, but as an abuse to be corrected,--that they never made it a question, whether India is to be improved by English law and liberty, or English law and liberty vitiated by Indian corruption.

No, my Lords, this arbitrary power is not to be had by conquest. Nor can any sovereign have it by succession; for no man can succeed to fraud, rapine, and violence. Neither by compact, covenant, or submission,--for men cannot covenant themselves out of their rights and their duties,--nor by any other means, can arbitrary power be conveyed to any man. Those who give to others such rights perform acts that are void as they are given,--good indeed and valid only as tending to subject themselves, and those who act with them, to the Divine displeasure; because morally there can be no such power. Those who give and those who receive arbitrary power are alike criminal; and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world. It is a crime to bear it, when it can be rationally shaken off. Nothing but absolute impotence can justify men in not resisting it to the utmost of their ability.

Law and arbitrary power are in eternal enmity. Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. In every patent of office the duty is included. For what else does a magistrate exist? To suppose for power is an absurdity in idea. Judges are guided and governed by the eternal laws of justice, to which we are all subject. We may bite our chains, if we will, but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute _will_ in the place of it is an enemy to GOD.

Despotism does not in the smallest degree abrogate, alter, or lessen any one duty of any one relation of life, or weaken the force or obligation of any one engagement or contract whatsoever. Despotism, if it means anything that is at all defensible, means a mode of government bound by no written rules, and coerced by no controlling magistracies or well-settled orders in the state. But if it has no written law, it neither does nor can cancel the primeval, indefeasible, unalterable law of Nature and of nations; and if no magistracies control its exertions, those exertions must derive their limitation and direction either from the equity and moderation of the ruler, or from downright revolt on the part of the subject by rebellion, divested of all its criminal qualities. The moment a sovereign removes the idea of security and protection from his subjects, and declares that he is everything and they nothing, when he declares that no contract he makes with them can or ought to bind him, he then declares war upon them: he is no longer sovereign; they are no longer subjects.

No man, therefore, has a right to arbitrary power. But the thought which is suggested by the depravity of him who brings it forward is supported by a gross confusion of ideas and principles, which your Lordships well know how to discern and separate. It is manifest, that, in the Eastern governments, and the Western, and in all governments, the supreme power in the state cannot, whilst that state subsists, be rendered criminally responsible for its actions: otherwise it would not be the supreme power. It is certainly true: but the actions do not change their nature by losing their responsibility. The arbitrary acts which are unpunished are not the less vicious, though none but God, the conscience, and the opinions of mankind take cognizance of them.

It is not merely so in this or that government, but in all countries. The king in this country is undoubtedly unaccountable for his actions. The House of Lords, if it should ever exercise, (God forbid I should suspect it would ever do what it has never done!)--but if it should ever abuse its judicial power, and give such a judgment as it ought not to give, whether from fear of popular clamor on the one hand, or predilection to the prisoner on the other,--if they abuse their judgments, there is no calling them to an account for it. And so, if the Commons should abuse their power, nay, if they should have been so greatly delinquent as not to have prosecuted this offender, they could not be accountable for it; there is no punishing them for their acts, because we exercise a part of the supreme power. But are they less criminal, less rebellious against the Divine Majesty? are they less hateful to man, whose opinions they ought to cultivate as far as they are just? No: till society fall into a state of dissolution, they cannot be accountable for their acts. But it is from confounding the unaccountable character inherent in the supreme power with arbitrary power, that all this confusion of ideas has arisen.

Even upon a supposition that arbitrary power can exist anywhere, which we deny totally, and which your Lordships will be the first and proudest to deny, still, absolute supreme dominion was never conferred or delegated by you,--much less, arbitrary power, which never did in any case, nor ever will in any case, time, or country, produce any one of the ends of just government.

It is true that the supreme power in every constitution of government must be absolute, and this may be corrupted into the arbitrary. But all good constitutions have established certain fixed rules for the exercise of their functions, which they rarely or ever depart from, and which rules form the security against that worst of evils, the government of will and force instead of wisdom and justice.

But though the supreme power is in a situation resembling arbitrary, yet never was there heard of in the history of the world, that is, in that mixed chaos of human wisdom and folly, such a thing as an _intermediate_ arbitrary power,--that is, of an officer of government who is to exert authority over the people without any law at all, and who is to have the benefit of all laws, and all forms of law, when he is called to an account. For that is to let a wild beast (for such is a man without law) loose upon the people to prey on them at his pleasure, whilst all the laws which ought to secure the people against the abuse of power are employed to screen that abuse against the cries of the people.

This is _de facto_ the state of our Indian government. But to establish it so in right as well as in fact is a thing left for us to begin with, the first of mankind. For a subordinate arbitrary or even despotic power never was heard of in right, claim, or authorized practice; least of all has it been heard of in the Eastern governments, where all the instances of severity and cruelty fall upon governors and persons intrusted with power. This would be a gross contradiction. Before Mr. Hastings, none ever came before his superiors to claim it; because, if any such thing could exist, he claims the very power of that sovereign who calls him to account.

But suppose a man to come before us, denying all the benefits of law to the people under him,--and yet, when he is called to account, to claim all the benefits of that law which was made to screen mankind from the excesses of power: such a claim, I will venture to say, is a monster that never existed, except in the wild imagination of some theorist. It cannot be admitted, because it is a perversion of the fundamental principle, that every power given for the protection of the people below should be responsible to the power above. It is to suppose that the people shall have no laws with regard to _him_, yet, when _he_ comes to be tried, he shall claim the protection of those laws which were made to secure the people from his violence,--that he shall claim a fair trial, an equitable hearing, every advantage of counsel, (God forbid he should not have them!) yet that the people under him shall have none of those advantages. The reverse is the principle of every just and rational procedure. For the people, who have nothing to use but their natural faculties, ought to be gently dealt with; but those who are intrusted with an artificial and instituted authority have in their hands a great deal of the force of other people; and as their temptations to injustice are greater, so their moans are infinitely more effectual for mischief by turning the powers given for the preservation of society to its destruction: so that, if an arbitrary procedure be justifiable, (a strong one I am sure is,) it is when used against those who pretend to use it against others.

My Lords, I will venture to say of the governments of Asia, that none of them ever had an arbitrary power; and if any governments had an arbitrary power, they cannot delegate it to any persons under them: that is, they cannot so delegate it to others as not to leave them accountable on the principles upon which it was given. As this is a contradiction in terms, a gross absurdity, as well as a monstrous wickedness, let me say, for the honor of human nature, that, although undoubtedly we may speak it with the pride of England that we have better institutions for the preservation of the rights of men than any other country in the world, yet I will venture to say that no country has wholly meant, or ever meant, to give this power.

As it cannot exist in right on any rational and solid principles of government, so neither does it exist in the constitution of Oriental governments,--and I do insist upon it, that Oriental governments know nothing of arbitrary power. I have taken as much pains as I could to examine into the constitutions of them. I have been endeavoring to inform myself at all times on this subject; of late my duty has led me to a more minute inspection of them; and I do challenge the whole race of man to show me any of the Oriental governors claiming to themselves a right to act by arbitrary will.

The greatest part of Asia is under Mahomedan governments. To name a Mahomedan government is to name a government by law. It is a law enforced by stronger sanctions than any law that can bind a Christian sovereign. Their law is believed to be given by God; and it has the double sanction of law and of religion, with which the prince is no more authorized to dispense than any one else. And if any man will produce the Koran to me, and will but show me one text in it that authorizes in any degree an arbitrary power in the government, I will confess that I have read that book, and been conversant in the affairs of Asia, in vain. There is not such a syllable in it; but, on the contrary, against oppressors by name every letter of that law is fulminated. There are interpreters established throughout all Asia to explain that law, an order of priesthood, whom they call _men of the law_. These men are conservators of the law; and to enable them to preserve it in its perfection, they are secured from the resentment of the sovereign: for he cannot touch them. Even their kings are not always vested with a real supreme power, but the government is in some degree republican.

To bring this point a little nearer home,--since we are challenged thus, since we are led into Asia, since we are called upon to make good our charge on the principles of the governments there, rather than on those of our own country, (which I trust your Lordships will oblige him finally to be governed by, puffed up as he is with the insolence of Asia,)--the nearest to us of the governments he appeals to is that of the Grand Seignior, the Emperor of the Turks.--_He_ an arbitrary power! Why, he has not the supreme power of his own country. Every one knows that the Grand Seignior is exalted high in _titles_, as our prerogative lawyers exalt an abstract sovereign,--and he cannot be exalted higher in our books. I say he is destitute of the first character of sovereign power: he cannot lay a tax upon his people. The next part in which he misses of a sovereign power is, that he cannot dispose of the life, of the property, or of the liberty of any of his subjects, but by what is called the _fetwah_, or sentence of the law. He cannot declare peace or war without the same sentence of the law: so much is _he_, more than European sovereigns, a subject of strict law, that he cannot declare war or peace without it. Then, if he can neither touch life nor property, if he cannot lay a tax on his subjects, or declare peace or war, I leave it to your Lordships' judgment, whether he can be called, according to the principles of that constitution, an arbitrary power. A Turkish sovereign, if he should be judged by the body of that law to have acted against its principles, (unless he happens to be secured by a faction of the soldiery,) is liable to be deposed on the sentence of that law, and his successor comes in under the strict limitations of the ancient law of that country: neither can he hold his place, dispose of his succession, or take any one step whatever, without being bound by law. Thus much may be said, when gentlemen talk of the affairs of Asia, as to the nearest of Asiatic sovereigns: and he is more Asiatic than European, he is a Mahomedan sovereign; and no Mahomedan is born who can exercise any arbitrary power at all, consistently with their constitution; insomuch that this chief magistrate, who is the highest executive power among them, is the very person who, by the constitution of the country, is the most fettered by law.

Corruption is the true cause of the loss of all the benefits of the constitution of that country. The _practice of Asia_, as the gentleman at your bar has thought fit to say, is what he holds to; the constitution he flies away from. The question is, whether you will take the constitution of the country as your rule, or the base practices of those usurpers, robbers, and tyrants who have subverted it. Undoubtedly, much blood, murder, false imprisonment, much peculation, cruelty, and robbery are to be found in Asia; and if, instead of going to the sacred laws of the country, he chooses to resort to the iniquitous practices of it, and practices authorized only by public tumult, contention, war, and riot, he may indeed find as clear an acquittal in the practices as he would find condemnation in the institutions of it. He has rejected the law of England. Your Lordships will not suffer it. God forbid! For my part, I should have no sort of objection to let him choose his law,--Mahomedan, Tartarian, Gentoo. But if he disputes, as he does, the authority of an act of Parliament, let him state to me that law to which he means to be subject, or any law which he knows that will justify his actions. I am not authorized to say that I shall, even in that case, give up what is not in me to give up, because I represent an authority of which I must stand in awe; but, for myself, I shall confess that I am brought to public shame, and am not fit to manage the great interests committed to my charge. I therefore again repeat of that Asiatic government with which we are best acquainted, which has been constituted more in obedience to the laws of Mahomet than any other, that the sovereign cannot, agreeably to that constitution, exercise any arbitrary power whatever.

The next point for us to consider is, whether or no the Mahomedan constitution of India authorizes that power. The gentleman at your Lordships' bar has thought proper to say, that it will be happy for India, (though soon after he tells you it is an happiness they can never enjoy,) "when the despotic institutes of Genghiz Khan or Tamerlane shall give place to the liberal spirit of a British legislature; and," says he, "I shall be amply satisfied in my present prosecution, if it shall tend to hasten the approach of an event so beneficial to the great interests of mankind."

My Lords, you have seen what he says about an act of Parliament. Do you not now think it rather an extraordinary thing, that any British subject should, in vindication of the authority which he has exercised, here quote the names and institutes, as he calls them, of fierce conquerors, of men who were the scourges of mankind, whose power was a power which they held by force only?

As to the institutes of Genghiz Khan, which he calls arbitrary institutes, I never saw them. If he has that book, he will oblige the public by producing it. I have seen a book existing, called Yassa of Genghiz Khan; the other I never saw. If there be any part of it to justify arbitrary power, he will produce it. But if we may judge by those ten precepts of Genghiz Khan which we have, there is not a shadow of arbitrary power to be found in any one of them. Institutes of arbitrary power! Why, if there is arbitrary power, there can be no institutes.

As to the institutes of Tamerlane, here they are in their original, and here is a translation. I have carefully read every part of these institutes; and if any one shows me one word in them in which the prince claims in himself arbitrary power, I again repeat, that I shall for my own part confess that I have brought myself to great shame. There is no book in the world, I believe, which contains nobler, more just, more manly, more pious principles of government than this book, called the Institutions of Tamerlane. Nor is there one word of arbitrary power in it, much less of that arbitrary power which Mr. Hastings supposes himself justified by,--namely, a delegated, subordinate, arbitrary power. So far was that great prince from permitting this gross, violent, intermediate arbitrary power, that I will venture to say the chief thing by which he has recommended himself to posterity was a most direct declaration of all the wrath and indignation of the supreme government against it. But here is the book. It contains the institutes of the founder of the Mogul empire, left as a sacred legacy to his posterity, as a rule for their conduct, and as a means of preserving their power.

* * * * *

"Be it known to my fortunate sons, the conquerors of kingdoms, to my mighty descendants, the lords of the earth, that, since I have hope in Almighty God that many of my children, descendants, and posterity shall sit upon the throne of power and regal authority, upon this account, having established laws and regulations for the well governing of my dominions, I have collected together those regulations and laws as a model for others, to the end that, every one of my children, descendants, and posterity acting agreeably thereto, my power and empire, which I acquired through hardships and difficulties and perils and bloodshed, by the Divine favor, and by the influence of the holy religion of Mahomet, (God's peace be up on him!) and with the assistance of the powerful descendants and illustrious followers of that prophet, may be by them preserved. And let them make these regulations the rule of their conduct in the affairs of their empire, that the fortune and the power which shall descend from me to them may be safe from discord and dissolution.

"Now, therefore, be it known to my sons, the fortunate and the illustrious, to my descendants, the mighty subduers of kingdoms, that, in like manner as I by twelve maxims, which I established as the rule of my conduct, attained to regal dignity, and with the assistance of these maxims conquered and governed kingdoms, and decorated and adorned the throne of my empire, let them also act according to these regulations, and preserve the splendor of mine and their dominions.

"And among the rules which I established for the support of my glory and empire, the _first_ was this,--that I promoted the worship of Almighty God, and propagated the religion of the sacred Mahomet throughout the world, and at all times and in all places supported the true faith.

"_Secondly_. With the people of the twelve classes and tribes I conquered and governed kingdoms, and with them I strengthened the pillars of my fortune, and from them I formed my assembly.

"_Thirdly_. By consultation and deliberation and provident measures, by caution and by vigilance, I vanquished armies, and I reduced kingdoms to my authority. And I carried on the business of my empire by complying with times and occasions, and by generosity, and by patience, and by policy; and I acted with courteousness towards my friends and towards my enemies.

"_Fourthly_. By order and by discipline I regulated the concerns of my government; and by discipline and by order I so firmly established my authority, that the emirs and the viziers and the soldiers and the subjects could not aspire beyond their respective degrees; and every one of them was the keeper of his own station.

"_Fifthly_. I gave encouragement to my emirs and to my soldiers, and with money and with jewels I made them glad of heart; and I permitted them to come into the banquet; and in the field of blood they hazarded their lives. And I withheld not from them my gold nor my silver. And I educated and trained them to arms; and to alleviate their sufferings, I myself shared in their labors and in their hardships, until with the arm of fortitude and resolution, and with the unanimity of my chiefs and my generals and my warriors, by the edge of the sword, I obtained possession of the thrones of seven-and-twenty kings, and became the king and the ruler of the kingdoms of Eraun, and of Tooraun, and of Room, and of Mughrib, and of Shaum, and of Missur, and of Erauk-a-Arrub, and of Ajjum, and of Mauzinduraun, and of Kylaunaut, and of Shurvaunaut, and of Azzurbauejaun, and of Fauris, and of Khorausaun, and of the Dusht of Jitteh, and the Dusht of Kipchauk, and of Khauruzm, and Khuttun, and of Kauboolistaun, and of Hindostaun, and of Bauktur Zemeen.

"And when I clothed myself in the robe of empire, I shut my eyes to safety, and to the repose which is found on the bed of ease. And from the twelfth year of my age I travelled over countries, and combated difficulties, and formed enterprises, and vanquished armies, and experienced mutinies amongst my officers and my soldiers, and was familiarized to the language of disobedience; and I opposed them with policy and with fortitude, and I hazarded my person in the hour of danger; until in the end I vanquished kingdoms and empires, and established the glory of my name.

"_Sixthly_. By justice and equity I gained the affections of the people of God; and I extended my clemency to the guilty as well as to the innocent; and I passed that sentence which truth required; and by benevolence I gained a place in the hearts of men; and by rewards and punishments I kept both my troops and my subjects divided between hope and fear. And I compassionated the lower ranks of my people, and those who were distressed. And I gave gifts to the soldiers.

"And I delivered the oppressed from the hand of the oppressor; and after proof of the oppression, whether on the property or the person, the decision which I passed between them was agreeable to the sacred law. And I did not cause any one person to suffer for the guilt of another.

"Those who had done me injuries, who had attacked my person in battle, and had counteracted my schemes and enterprises, when they threw themselves on my mercy, I received them with kindness, I conferred on them additional honors, and I drew the pen of oblivion over their evil actions; and I treated them in such sort, that, if suspicion remained in their hearts, it was plucked out entirely.

"_Seventhly_, I selected out, and treated with esteem and veneration, the posterity of the Prophet, and the theologians, and the teachers of the true faith, and the philosophers, and the historians. And I loved men of courage and valor; for God Almighty loveth the brave. And I associated with good and learned men; and I gained their affections, and I entreated their support, and I sought success from their holy prayers. And I loved the dervishes and the poor; and I oppressed them not, neither did I exclude them from my favor. And I permitted not the evil and the malevolent to enter into my council; and I acted not by their advice; and I listened not to their insinuations to the prejudice of others.

"_Eighthly_. I acted with resolution; and on whatever undertaking I resolved, I made that undertaking the only object of my attention; and I withdrew not my hand from that enterprise, until I had brought it to a conclusion. And I acted according to that which I said. And I dealt not with severity towards any one, and I was not oppressive in any of my actions; that God Almighty might not deal severely towards me, nor render my own actions oppressive unto me.