Volume XI Part 12 (1/2)

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 Lords.h.i.+ps 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 inconsiderate 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 Lords.h.i.+ps 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 const.i.tutions deserves. I do not know whether Mr. Halhed's compilation is in evidence before your Lords.h.i.+ps, but I do know that it is good authority on the Gentoo law. Mr. Hastings, who instructed his counsel to a.s.sert that the people have ”no rights, no law,” ought to be well acquainted with this work, because he claimed for a while the glory of the compilation, although n.o.bkissin, as your Lords.h.i.+ps 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 up the whole cause, if there is, from one end to the other of this code, any sort of arbitrary power claimed or a.s.serted on the part of the magistrate, or any declaration that the people have no rights of property. No: it a.s.serts the direct contrary.

First, the people are divided into cla.s.ses and ranks, with more accuracy of distinction than is used in this country, or in any other country under heaven. Every cla.s.s 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 a.s.serted 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 property among them. Now you have only to look at page 27, chapter the second, the t.i.tle 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 any 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 a.s.sume 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 circ.u.mstance. It nowhere a.s.serts (but the direct contrary is positively a.s.serted) that the magistrate has any power whatever over property. It states that it is the magistrate's duty to protect it; that he is bound to govern by law; that he must have a council of Brahmins to a.s.sist 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 pa.s.sage 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 distinguis.h.i.+ng and attending to his own concerns, 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 s.p.a.ce 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 circ.u.mstances 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 Lords.h.i.+ps 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 a.s.sert, in this sacred temple of justice, in the presence of this great a.s.sembly, 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 Lords.h.i.+ps with more extracts from this book. I recommend it to your Lords.h.i.+ps' 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 ten thousand times more 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 circ.u.mspection 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 Lords.h.i.+ps 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 of 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 n.o.bkissin of his money to get these laws translated, but he took credit for the publication of the work as an act of public spirit, after s.h.i.+fting the payment from himself by fraud and peculation. All this has been proved by the testimonies of Mr. Auriol and Mr. Halhed before your Lords.h.i.+ps.

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 Lords.h.i.+ps 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 improving the laws and inst.i.tutions 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 lawfully a.s.sembled in general diet. He then established the privileges and immunities granted to the Tunkawns,--that is, to the n.o.bility and gentry of the country,--and afterwards published most severe ordinances against governors who failed in doing their duty, but princ.i.p.ally against those who commanded in far distant provinces. This prince was in this case, what I hope your Lords.h.i.+ps will be, a very severe judge of the governors 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 establis.h.i.+ng 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 a.s.sume 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 Inst.i.tutes I have before me. I wish to save your Lords.h.i.+ps' time, or I could show you in the life of this prince, that he, violent as his conquests were, b.l.o.o.d.y as all conquests are, ferocious as a Mahometan making his crusades for the propagation of his religion, he yet knew how to govern his unjust acquisitions with equity and moderation. If any man could be ent.i.tled 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 have 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 inst.i.tutes of civil government more honorable to himself than the Inst.i.tutes of Timour. I shall be content to be brought to shame before your Lords.h.i.+ps, if the prisoner at your bar can show me one pa.s.sage where the a.s.sumption of arbitrary power is even hinted at by this great conqueror. He declares that the n.o.bility 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 Lords.h.i.+ps 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 decision which I pa.s.sed between them was agreeable to the sacred law; and I did not cause any one person to suffer for the guilt of another.”[95]

My Lords, I have only further to inform your Lords.h.i.+ps that these Inst.i.tutes 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 n.o.bility the respect due to their rank, and in the people the protection to which they were by law ent.i.tled. 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 written 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 that I should show your Lords.h.i.+ps 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 ent.i.tled to protection.

Mr. Hastings caused to be published, and I am obliged to him for it, a book called ”The Hedaya”: it is true that he has himself taken credit for the work, and robbed n.o.bkissin of the money to pay for it; but the value of a book 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 jurisprudence 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 _Rawaj-ul-Mulk_, or custom and usage, the common law of the country, which prevails independent of any of the former.

In regard to punishments being arbitrary, I will, with your Lords.h.i.+ps'

permission, read a pa.s.sage 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 wh.o.r.edom, 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 G.o.d, 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 a.s.sistance to the collective body of Mussulmans.”[96]

Here your Lords.h.i.+ps 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 Lords.h.i.+ps that the sovereign can raise no taxes.

The imposing of a tribute 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 Lords.h.i.+ps 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 author then proceeds to say,--”The word _baghee_ (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 _Fattahal-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 whom the Mussulmans enjoy security in person and property; one who levies t.i.the and tribute according to law; who out of the public treasury pays what is due to learned men, preachers, kazees, muftis, philosophers, public teachers, and so forth; and who is just in all his dealings with Mussulmans: for whoever does not answer this description is not the right Imaum; whence it is not inc.u.mbent to support such a one; but rather it is inc.u.mbent to oppose him and make war upon him, until such time as he either adopt a proper mode of conduct or be slain.”[97]

My 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 Mahometan 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.