Volume XI Part 13 (1/2)
It may be necessary that I should recall to your Lords.h.i.+ps' recollection the principles of the accusation and of the defence. Your Lords.h.i.+ps 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 a.s.sign 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 Lords.h.i.+ps 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 Lords.h.i.+ps' 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 Lords.h.i.+ps' bar for judgment. This is our table of the law. Your Lords.h.i.+ps shall now be shown the table by which he claims to be judged. But I will first beg your Lords.h.i.+ps 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 a.s.sumed 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 p.r.o.nounce,” and so on. This is the manner in which he treats an act of Parliament! In the place of acts of Parliament he subst.i.tutes 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 Inst.i.tutes 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 Lords.h.i.+ps 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 Lords.h.i.+ps is a hundred times more important than the cause itself, for it is to determine by what law or maxims of law the conduct of governors is to be judged.
On one side, your Lords.h.i.+ps have the prisoner declaring that the people have no laws, no rights, no usages, no distinctions of rank, no sense of honor, no property,--in short, that they are nothing but a herd of slaves, to be governed by the arbitrary will of a master. On the other side, we a.s.sert that the direct contrary of this is true. And to prove our a.s.sertion we have referred you to the Inst.i.tutes of Genghis Khan and of Tamerlane; we have referred you to the Mahometan law, which is binding upon all, from the crowned head to the meanest subject,--a law interwoven with a system of the wisest, the most learned, and most enlightened jurisprudence that perhaps ever existed in the world. We have shown you, that, if these parties are to be compared together, it is not the rights of the people which are nothing, but rather the rights of the sovereign which are so. The rights of the people are everything, as they ought to be, in the true and natural order of things. G.o.d forbid that these maxims should trench upon sovereignty, and its true, just, and lawful prerogative!--on the contrary, they ought to support and establish them. The sovereign's rights are undoubtedly sacred rights, and ought to be so held in every country in the world, because exercised for the benefit of the people, and in subordination to that great end for which alone G.o.d has vested power in any man or any set of men. This is the law that we insist upon, and these are the principles upon which your Lords.h.i.+ps are to try the prisoner at your bar.
Let me remind your Lords.h.i.+ps that these people lived under the laws to which I have referred you, and that these laws were formed whilst we, I may say, were in the forest, certainly before we knew what technical jurisprudence was. These laws are allowed to be the basis and substratum of the manners, customs, and opinions of the people of India; and we contend that Mr. Hastings is bound to know them and to act by them; and I shall prove that the very condition upon which he received power in India was to protect the people in their laws and known rights. But whether Mr. Hastings did know these laws, or whether, content with credit gained by as base a fraud as was ever practised, he did not read the books which n.o.bkissin paid for, we take the benefit of them: we know and speak after knowledge of them. And although I believe his Council have never read them, I should be sorry to stand in this place, if there was one word and t.i.ttle in these books that I had not read over.
We therefore come here and declare to you that he is not borne out by these Inst.i.tutes, either in their general spirit or in any particular pa.s.sage to which he has had the impudence to appeal, in the a.s.sumption of the arbitrary power which he has exercised. We claim, that, as our own government and every person exercising authority in Great Britain is bound by the laws of Great Britain, so every person exercising authority in another country shall be subject to the laws of that country; since otherwise they break the very covenant by which we hold our power there.
Even if these Inst.i.tutes had been arbitrary, which they are not, they might have been excused as the acts of conquerors. But, my Lords, he is no conqueror, nor anything but what you see him,--a bad scribbler of absurd papers, in which he can put no two sentences together without contradiction. We know him in no other character than that of having been a bullock-contractor for some years, of having acted fraudulently in that capacity, and afterwards giving fraudulent contracts to others; and yet I will maintain that the first conquerors of the world would have been base and abandoned, if they had a.s.sumed such a right as he dares to claim. It is the glory of all such great men to have for their motto, _Parcere subjectis et debellare superbos_. These were men that said they would recompense the countries which they had obtained through torrents of blood, through carnage and violence, by the justice of their inst.i.tutions, the mildness of their laws, and the equity of their government. Even if these conquerors had promulgated arbitrary inst.i.tutes instead of disclaiming them in every point, you, my Lords, would never suffer such principles of defence to be urged here; still less will you suffer the examples of men acting by violence, of men acting by wrong, the example of a man who has become a rebel to his sovereign in order that he should become the tyrant of his people, to be examples for a British governor, or for any governor. We here confidently protest against this mode of justification, and we maintain that his pretending to follow these examples is in itself a crime. The prisoner has ransacked all Asia for principles of despotism; he has ransacked all the bad and corrupted part of it for tyrannical examples to justify himself: and certainly in no other way can he be justified.
Having established the falsehood of the first principle of the prisoner's defence, that sovereignty, wherever it exists in India, implies in its nature and essence a power of exacting anything from the subject, and disposing of his person and property, we now come to his second a.s.sertion, that he was the true, full, and perfect representative of that sovereignty in India.
In opposition to this a.s.sertion we first do positively deny that he or the Company are the perfect representative of any sovereign power whatever. They have certain rights by their charter, and by acts of Parliament, but they have no other. They have their legal rights only, and these do not imply any such thing as sovereign power. The sovereignty of Great Britain is in the King; he is the sovereign of the Lords and the sovereign of the Commons, individually and collectively; and as he has his prerogative established by law, he must exercise it, and all persons claiming and deriving under him, whether by act of Parliament, whether by charter of the Crown, or by any other mode whatever, all are alike bound by law, and responsible to it. No one can a.s.sume or receive any power of sovereignty, because the sovereignty is in the Crown, and cannot be delegated away from the Crown; no such delegation ever took place, or ever was intended, as any one may see in the act by which Mr. Hastings was nominated Governor. He cannot, therefore, exercise that high supreme sovereignty which is vested by the law, with the consent of both Houses of Parliament, in the King, and in the King only. It is a violent, rebellious a.s.sumption of power, when Mr.
Hastings pretends fully, perfectly, and entirely to represent the sovereign of this country, and to exercise legislative, executive, and judicial authority, with as large and broad a sway as his Majesty, acting with the consent of the two Houses of Parliament, and agreeably to the laws of this kingdom. I say, my Lords, this is a traitorous and rebellious a.s.sumption, which he has no right to make, and which we charge against him, and therefore it cannot be urged in justification of his conduct in any respect.
He next alleges, with reference to one particular case, that he received this sovereignty from the Vizier Sujah Dowlah, who he pretends was sovereign, with an unlimited power over the life, goods, and property of Cheyt Sing. This we positively deny. Whatever power the supreme sovereign of the empire had, we deny that it was delegated to Sujah Dowlah. He never was in possession of it. He was a vizier of the empire; he had a grant of certain lands for the support of that dignity: and we refer you to the Inst.i.tutes of Timour, to the Inst.i.tutes of Akbar, to the inst.i.tutes of the Mahometan law, for the powers of delegated governors and viceroys. You will find that there is not a trace of sovereignty in them, but that they are, to all intents and purposes, mere subjects; and consequently, as Sujah Dowlah had not these powers, he could not transfer them to the India Company. His master, the Mogul emperor, had them not. I defy any man to show an instance of that emperor's claiming any such thing as arbitrary power; much less can it be claimed by a rebellious viceroy who had broken loose from his sovereign's authority, just as this man broke loose from the authority of Parliament. The one had not a right to give, nor the other to receive such powers. But whatever rights were vested in the Mogul, they cannot belong either to Sujah Dowlah, to Mr. Hastings, or to the Company. These latter are expressly bound by their compact to take care of the subjects of the empire, and to govern them according to law, reason, and equity; and when they do otherwise, they are guilty of tyranny, of a violation of the rights of the people, and of rebellion against their sovereign.
We have taken these pains to ascertain and fix principles, because your Lords.h.i.+ps are not called upon to judge of facts. A jury may find facts, but no jury can form a judgment of law; it is an application of the law to the fact that makes the act criminal or laudable. You must find a fixed standard of some kind or other; for if there is no standard but the immediate momentary purpose of the day, guided and governed by the man who uses it, fixed not only for the disposition of all the wealth and strength of the state, but for the life, fortune, and property of every individual, your Lords.h.i.+ps are left without a principle to direct your judgment. This high court, this supreme court of appeal from all the courts of the kingdom, this highest court of criminal jurisdiction, exercised upon the requisition of the House of Commons, if left without a rule, would be as lawless as the wild savage, and as unprincipled as the prisoner that stands at your bar. Our whole issue is upon principles, and what I shall say to you will be in perpetual reference to them; because it is better to have no principles at all than to have false principles of government and of morality. Leave a man to his pa.s.sions, and you leave a wild beast to a savage and capricious nature.
A wild beast, indeed, when its stomach is full, will caress you, and may lick your hands; in like manner, when a tyrant is pleased or his pa.s.sion satiated, you may have a happy and serene day under an arbitrary government. But when the principle founded on solid reason, which ought to restrain pa.s.sion, is perverted from its proper end, the false principle will be subst.i.tuted for it, and then man becomes ten times worse than a wild beast. The evil principle, grown solid and perennial, goads him on and takes entire possession of his mind; and then perhaps the best refuge that you can have from that diabolical principle is in the natural wild pa.s.sions and unbridled appet.i.tes of mankind. This is a dreadful state of things; and therefore we have thought it necessary to say a great deal upon his principles.
My Lords, we come next to apply these principles to facts which cannot otherwise be judged, as we have contended and do now contend. I will not go over facts which have been opened to you by my fellow Managers: if I did so, I should appear to have a distrust, which I am sure no other man has, of the greatest abilities displayed in the greatest of all causes.
I should be guilty of a presumption which I hope I shall not dream of, but leave to those who exercise arbitrary power, in supposing that I could go over the ground which my fellow Managers have once trodden, and make anything more clear and forcible than they have done. In my humble opinion, human ability cannot go farther than they have gone; and if I ever allude to anything which they have already touched, it will be to show it in another light,--to mark more particularly its departure from the principles upon which we contend you ought to judge, or to supply those parts which through bodily infirmity, and I am sure nothing else, one of my excellent fellow Managers has left untouched. I am here alluding to the case of Cheyt Sing.
My honorable fellow Manager, Mr. Grey, has stated to you all the circ.u.mstances requisite to prove two things: first, that the demands made by Mr. Hastings upon Cheyt Sing were contrary to fundamental treaties between the Company and that Rajah; and next, that they were the result and effect of private malice and corruption. This having been stated and proved to you, I shall take up the subject where it was left.
My Lords, in the first place, I have to remark to you, that the whole of the charge originally brought by Mr. Hastings against Cheyt Sing, in justification of his wicked and tyrannical proceedings, is, that he had been dilatory, evasive, shuffling, and unwilling to pay that which, however unwilling, evasive, and shuffling, he did pay; and that, with regard to the business of furnis.h.i.+ng cavalry, the Rajah has a.s.serted, and his a.s.sertion has not been denied, that, when he was desired by the Council to furnish these troopers, the purpose for which this application was made was not mentioned or alluded to, nor was there any place of muster pointed out. We therefore contended, that the demand was not made for the service of the state, but for the oppression of the individual that suffered by it.
But admitting the Rajah to have been guilty of delay and unwillingness, what is the nature of the offence? If you strip it of the epithets by which it has been disguised, it merely amounts to an unwillingness in the Rajah to pay more than the sums stipulated by the mutual agreement existing between him and the Company. This is the whole of it, the whole front and head of the offence; and for this offence, such as it is, and admitting that he could be legally fined for it, he was subjected to the secret punishment of giving a bribe to Mr. Hastings, by which he was to buy off the fine, and which was consequently a commutation for it.
That your Lords.h.i.+ps may be enabled to judge more fully of the nature of this offence, let us see in what relation Cheyt Sing stood with the Company. He was, my Lords, a person clothed with every one of the attributes of sovereignty, under a direct stipulation that the Company should not interfere in his internal government. The military and civil authority, the power of life and death, the whole revenue, and the whole administration of the law, rested in him. Such was the sovereignty he possessed within Benares: but he was a subordinate sovereign dependent upon a superior, according to the tenor of his compact, expressed or implied. Now, having contended, as we still contend, that the Law of Nations is the law of India as well as of Europe, because it is the law of reason and the law of Nature, drawn from the pure sources of morality, of public good, and of natural equity, and recognized and digested into order by the labor of learned men, I will refer your Lords.h.i.+ps to Vattel, Book I. Cap. 16, where he treats of the breach of such agreements, by the protector refusing to give protection, or the protected refusing to perform his part of the engagement. My design in referring you to this author is to prove that Cheyt Sing, so far from being blamable in raising objections to the unauthorized demand made upon him by Mr. Hastings, was absolutely bound to do so; nor could he have done otherwise, without hazarding the whole benefit of the agreement upon which his subjection and protection were founded. The law is the same with respect to both contracting parties: if the protected or protector does not fulfil with fidelity _each his separate stipulation_, the protected may resist the unauthorized demand of the protector, or the protector is discharged from his engagement; he may refuse protection, and declare the treaty broken.
We contend in favor of Cheyt Sing, in support of the principles of natural equity, and of the Law of Nations, which is the birthright of us all,--we contend, I say, that Cheyt Sing would have established, in the opinions of the best writers on the Law of Nations, a precedent against himself for any future violation of the engagement, if he submitted to any new demand, without what our laws call a continual claim or perpetual remonstrance against the imposition. Instead, therefore, of doing that which was criminal, he did that which his safety and his duty bound him to do; and for doing this he was considered by Mr. Hastings as being guilty of a great crime. In a paper which was published by the prisoner in justification of this act, he considers the Rajah to have been guilty of rebellious intentions; and he represents these acts of contumacy, as he calls them, not as proofs of contumacy merely, but as proofs of a settled design to rebel, and to throw off the authority of that nation by which he was protected. This belief he declares on oath to be the ground of his conduct towards Cheyt Sing.
Now, my Lords, we do contend, that, if any subject, under any name, or of any description, be not engaged in public, open rebellion, but continues to acknowledge the authority of his sovereign, and, if tributary, to pay tribute conformably to agreement, such a subject, in case of being suspected of having formed traitorous designs, ought to be treated in a manner totally different from that which was adopted by Mr.
Hastings. If the Rajah of Benares had formed a secret conspiracy, Mr.
Hastings had a state duty and a judicial duty to perform. He was bound, as Governor, knowing of such a conspiracy, to provide for the public safety; and as a judge, he was bound to convene a criminal court, and to lay before it a detailed accusation of the offence. He was bound to proceed publicly and legally against the accused, and to convict him of his crime, previous to his inflicting, or forming any intention of inflicting, punishment. I say, my Lords, that Mr. Hastings, as a magistrate, was bound to proceed against the Rajah either by English law, by Mahometan law, or by the Gentoo law; and that, by all or any of these laws, he was bound to make the accused acquainted with the crime alleged, to hear his answer to the charge, and to produce evidence against him, in an open, clear, and judicial manner. And here, my Lords, we have again to remark, that the Mahometan law is a great discriminator of persons, and that it prescribes the mode of proceeding against those who are accused of any delinquency requiring punishment, with a reference to the distinction and rank which the accused held in society.