Part 21

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 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 be done. We have not accused him of the vices of conquerors: when we see him signalized by any conquests, we may then make such an accusation; at present we say that he has been trusted with power much beyond his deserts, and that trust he has grossly abused.--But to proceed.

His counsel, according to their usual audacious manner, (I suppose they imagine that they are counsel for Tamerlane, or for Genghis 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 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 wish you to respect a people as respectable as yourselves,--a people who know as well as you what is rank, what is law, what is property,--a people who know how to feel disgrace, who know what equity, what reason, what proportion in punishments, what security of property is, just as well as any of your Lordships; for these are things which are secured to them by laws, by religion, by declarations of all their sovereigns. And what, my Lords, is opposed to all this? The practice of tyrants and usurpers, which Mr. Hastings takes for his rule and guidance. He endeavors to find deviations from legal government, and then instructs his counsel to say that I have asserted there is no such thing as arbitrary power in the East. Good God! if there was no such thing in any other part of the world, Mr. Hastings's conduct might have convinced me of the existence of arbitrary power, and have taught me much of its mischief.

But, my Lords, we all know that there has been arbitrary power in India,--that tyrants have usurped it,--and that, in some instances, princes otherwise meritorious have violated the liberties of the people, and have been lawfully deposed for such violation. I do not deny that there are robberies on Hounslow Heath,--that there are such things as forgeries, burglaries, and murders; but I say that these acts are against law, and that whoever commit them commit illegal acts. When a man is to defend himself against a charge of crime, it is not instances of similar violation of law that is to be the standard of his defence. A man may as well say, "I robbed upon Hounslow Heath, but hundreds robbed there before me": to which I answer, "The law has forbidden you to rob there; and I will hang you for having violated the law, notwithstanding the long list of similar violations which you have produced as precedents." No doubt princes have violated the law of this country: they have suffered for it. Nobles have violated the law: their privileges have not protected them from punishment. Common people have violated the law: they have been hanged for it. I know no human being exempt from the law. The law is the security of the people of England; it is the security of the people of India; it is the security of every person that is governed, and of every person that governs. There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity,--the Law of Nature and of Nations. So far as any laws fortify this primeval law, and give it more precision, more energy, more effect by their declarations, such laws enter into the sanctuary, and participate in the sacredness of its character. But the man who quotes as precedents the abuses of tyrants and robbers pollutes the very fountain of justice, destroys the foundations of all law, and thereby removes the only safeguard against evil men, whether governors or governed,--the guard which prevents governors from becoming tyrants, and the governed from becoming rebels.

* * * * *

I hope your Lordships will not think that I have unnecessarily occupied your time in disproving the plea of arbitrary power, which has been brought forward at our bar, has been repeated at your Lordships' bar, and has been put upon the records of both Houses. I hope your Lordships will not think that such monstrous doctrine should be passed over, without all possible pains being taken to demonstrate its falsehood and to reprobate its tendency. I have not spared myself in exposing the principles avowed by the prisoner. At another time I will endeavor to show you the manner in which he acted upon these principles. I cannot command strength to proceed further at present; and you, my Lords, cannot give me greater bodily strength than I have.

FOOTNOTES:

Institutes of Timour, p. 165.

Hedaya, Vol. II. p. 34.

Hedaya, Vol. II. pp. 247, 248.

SPEECH

GENERAL REPLY.

SECOND DAY: FRIDAY, MAY 30, 1794.

My lords,--On the last day of the sitting of this court, when I had the honor of appearing before you by the order of my fellow Managers, I stated to you their observations and my own upon two great points: one the demeanor of the prisoner at the bar during his trial, and the other the principles of his defence. I compared that demeanor with the behavior of some of the greatest men in this kingdom, who have, on account of their offences, been brought to your bar, and who have seldom escaped your Lordships' justice. I put the decency, humility, and propriety of the most distinguished men's behavior in contrast with the shameless effrontery of this prisoner, who has presumptuously made a recriminatory charge against the House of Commons, and answered their impeachment by a counter impeachment, explicitly accusing them of malice, oppression, and the blackest ingratitude.

My Lords, I next stated that this recriminatory charge consisted of two distinct parts,--injustice and delay. To the injustice we are to answer by the nature and proof of the charges which we have brought before you; and to the delay, my Lords, we have answered in another place. Into one of the consequences of the delay, the ruinous expense which the prisoner complains of, we have desired your Lordships to make an inquiry, and have referred you to facts and witnesses which will remove this part of the charge.

With regard to ingratitude, there will be a proper time for animadversion on this charge. For in considering the merits that are intended to be set off against his crimes, we shall have to examine into the nature of those merits, and to ascertain how far they are to operate, either as the prisoner designs they shall operate in his favor, as presumptive proofs that a man of such merits could not be guilty of such crimes, or as a sort of set-off to be pleaded in mitigation of his offences. In both of these lights we shall consider his services, and in this consideration we shall determine the justice of his charge of ingratitude.

My Lords, we have brought the demeanor of the prisoner before you for another reason. We are desirous that your Lordships may be enabled to estimate, from the proud presumption and audacity of the criminal at your bar, when he stands before the most awful tribunal in the world, accused by a body representing no less than the sacred voice of his country, what he must have been when placed in the seat of pride and power. What must have been the insolence of that man towards the natives of India, who, when called here to answer for enormous crimes, presumes to behave, not with the firmness of innocence, but with the audacity and hardness of guilt!

It may be necessary that I should recall to your Lordships' recollection the principles of the accusation and of the defence. Your Lordships will bear in mind that the matters of fact are all either settled by confession or conviction, and that the question now before you is no longer an issue of fact, but an issue of law. The question is, what degree of merit or demerit you are to assign by law to actions which have been laid before you, and their truth acknowledged.

The principle being established that you are to decide upon an issue at law, we examined by what law the prisoner ought to be tried; and we preferred a claim which we do now solemnly prefer, and which we trust your Lordships will concur with us in a laudable emulation to establish,--a claim founded upon the great truths, that all power is limited by law, and ought to be guided by discretion, and not by arbitrary will,--that all discretion must be referred to the conservation and benefit of those over whom power is exercised, and therefore must be guided by rules of sound political morality.

We next contended, that, wherever existing laws were applicable, the prisoner at your bar was bound by the laws and statutes of this kingdom, as a British subject; and that, whenever he exercised authority in the name of the Company, or in the name of his Majesty, or under any other name, he was bound by the laws and statutes of this kingdom, both in letter and spirit, so far as they were applicable to him and to his case; and above all, that he was bound by the act to which he owed his appointment, in all transactions with foreign powers, to act according to the known recognized rules of the Law of Nations, whether these powers were really or nominally sovereign, whether they were dependent or independent.

The next point which we established, and which we now call to your Lordships' recollection, is, that he was bound to proceed according to the laws, rights, laudable customs, privileges, and franchises of the country that he governed; and we contended that to such laws, rights, privileges, and franchises the people of the country had a clear and just claim.

Having established these points as the basis of Mr. Hastings's general power, we contended that he was obliged by the nature of his relation, as a servant to the Company, to be obedient to their orders at all times, and particularly where he had entered into special covenants regarding special articles of obedience.

These are the principles by which we have examined the conduct of this man, and upon which we have brought him to your Lordships' bar for judgment. This is our table of the law. Your Lordships shall now be shown the table by which he claims to be judged. But I will first beg your Lordships to take notice of the utter contempt with which he treats all our acts of Parliament.

Speaking of the absolute sovereignty which he would have you believe is exercised by the princes of India, he says, "The sovereignty which they assumed it fell to my lot, very unexpectedly, to exert; and whether or not such power, or powers of that nature, were delegated to me by any provisions of any act of Parliament I confess myself too little of a lawyer to pronounce," and so on. This is the manner in which he treats an act of Parliament! In the place of acts of Parliament he substitutes his own arbitrary will. This he contends is the sole law of the country he governed, as laid down in what he calls the arbitrary Institutes of Genghis Khan and Tamerlane. This arbitrary will he claims, to the exclusion of the Gentoo law, the Mahometan law, and the law of his own country. He claims the right of making his own will the sole rule of his government, and justifies the exercise of this power by the examples of Aliverdy Khan, Cossim Ali Khan, Sujah Dowlah Khan, and all those Khans who have rebelled against their masters, and desolated the countries subjected to their rule. This, my Lords, is the law which he has laid down for himself, and these are the examples which he has expressly told the House of Commons he is resolved to follow. These examples, my Lords, and the principles with which they are connected, without any softening or mitigation, he has prescribed to you as the rule by which his conduct is to be judged.

Another principle of the prisoner is, that, whenever the Company's affairs are in distress, even when that distress proceeds from his own prodigality, mismanagement, or corruption, he has a right to take for the Company's benefit privately in his own name, with the future application of it to their use reserved in his own breast, every kind of bribe or corrupt present whatever.

I have now restated to your Lordships the maxims by which the prisoner persists in defending himself, and the principles upon which we claim to have him judged. The issue before your Lordships is a hundred times more important than the cause itself, for it is to determine by what law or maxims of law the conduct of governors is to be judged.