Chapter 15

Let us now hear what the prisoner says. "The sovereignty which they [the subahdars, or viceroys of the Mogul empire] 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. If, therefore, 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 Mahometan 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 Khân and Cossim Ali fined all their zemindars on the necessities of war, and on every pretence either of court necessity or court extravagance."

I beseech your Lordships seriously to look upon the whole nature of the principles upon which the prisoner defends himself. He appeals to the custom and usage of the Mogul empire; and the constitution of that empire is, he says, arbitrary power. He says, that he does not know whether any act of Parliament bound him not to exercise this arbitrary power, and that, if any such act should in future be made, it would be mischievous and ruinous to our empire in India. Thus he has at once repealed all preceding acts, he has annulled by prospect every future act you can make; and it is not in the power of the Parliament of Great Britain, without ruining the empire, to hinder his exercising this despotic authority. All Asia is by him disfranchised at a stroke. Its inhabitants have no rights, no laws, no liberties; their state is mean and depraved; they may be fined for any purpose of court extravagance or prodigality,--or as Cheyt Sing was fined by him, not only upon every war, but upon every pretence of war.

This is the account he gives of his power, and of the people subject to the British government in India. We deny that the act of Parliament gave him any such power; we deny that the India Company gave him any such power, or that they had ever any such power to give; we even deny that there exists in all the human race a power to make the government of any state dependent upon individual will. We disclaim, we reject all such doctrines with disdain and indignation; and we have brought them up to your Lordships to be tried at your bar.

What must be the condition of the people of India, governed, as they have been, by persons who maintain these principles as maxims of government, and not as occasional deviations caused by the irregular will of man,--principles by which the whole system of society is to be controlled, not by law, reason, or justice, but by the will of one man?

Your Lordships will remark, that not only the whole of the laws, rights, and usages, but the very being of the people, are exposed to ruin: for Mr. Hastings says, that the people may be fined, that they may be exiled, that they may be imprisoned, and that even their lives are dependent upon the mere will of their foreign master; and that he, the Company's Governor, exercised that will under the authority of this country. Remark, my Lords, his application of this doctrine. "I would," he says, "have kept Cheyt Sing from the consequences of this dependence, by making him independent, and not in any manner subjecting him to our government. The moment he came into a state of dependence upon the British government, all these evils attached upon him.--It is," he adds, "disagreeable to me to exert such powers; but I know they must be exerted; and I declare there is no security from this arbitrary power, but by having nothing to do with the British government."

My Lords, the House of Commons has already well considered what may be our future moral and political condition, when the persons who come from that school of pride, insolence, corruption, and tyranny are more intimately mixed up with us of purer morals. Nothing but contamination can be the result, nothing but corruption can exist in this country, unless we expunge this doctrine out of the very hearts and souls of the people. It is not to the gang of plunderers and robbers of which I say this man is at the head, that we are only, or indeed principally, to look. Every man in Great Britain will be contaminated and must be corrupted, if you let loose among us whole legions of men, generation after generation, tainted with these abominable vices, and avowing these detestable principles. It is, therefore, to preserve the integrity and honor of the Commons of Great Britain, that we have brought this man to your Lordships' bar.

When these matters were first explained to your Lordships, and strongly enforced by abilities greater than I can exert, there was something like compunction shown by the prisoner: but he took the most strange mode to cover his guilt. Upon the cross-examination of Major Scott, he discovered all the engines of this Indian corruption. Mr. Hastings got that witness to swear that this defence of his, from which the passages I have read to your Lordships are extracted, was not his, but that it was the work of his whole Council, composed of Mr. Middleton, Mr. Shore, Mr. Halhed, Mr. Baber,--the whole body of his Indian Cabinet Council; that this was their work, and not his; and that he disclaimed it, and therefore that it would be wrong to press it upon him. Good God! my Lords, what shall we say in this stage of the business? The prisoner put in an elaborate defence: he now disclaims that defence. He told us that it was of his own writing, that he had been able to compose it in five days; and he now gets five persons to contradict his own assertions, and to disprove on oath his most solemn declarations.

My Lords, this business appears still more alarming, when we find not only Mr. Hastings, but his whole Council, engaged in it. I pray your Lordships to observe, that Mr. Halhed, a person concerned with Mr. Hastings in compiling a code of Gentoo laws, is now found to be one of the persons to whom this very defence is attributed which contains such detestable and abominable doctrines. But are we to consider the contents of this paper as the defence of the prisoner or not? Will any one say, that, when an answer is sworn to in Chancery, when an answer is given here to an impeachment of the Commons, or when a plea is made to an indictment, that it is drawn by the defendant's counsel, and therefore is not his? Did we not all hear him read this defence in part at our bar?--did we not see him hand it to his secretary to have it read by his son?--did he not then hear it read from end to end?--did not he himself desire it to be printed, (for it was no act of ours,) and did he not superintend and revise the press?--and has any breath but his own breathed upon it? No, my Lords, the whole composition is his, by writing or adoption; and never, till he found it pressed him in this House, never, till your Lordships began to entertain the same abhorrence of it that we did, did he disclaim it.

But mark another stage of the propagation of these horrible principles. After having grounded upon them the defence of his conduct against our charge, and after he had got a person to forswear them for him, and to prove him to have told falsehoods of the grossest kind to the House of Commons, he again adheres to this defence. The dog returned to his vomit. After having vomited out his vile, bilious stuff of arbitrary power, and afterwards denied it to be his, he gets his counsel in this place to resort to the loathsome mess again. They have thought proper, my Lords, to enter into an extended series of quotations from books of travellers, for the purpose of showing that despotism was the only principle of government acknowledged in India,--that the people have no laws, no rights, no property movable or immovable, no distinction of ranks, nor any sense of disgrace. After citing a long line of travellers to this effect, they quote Montesquieu as asserting the same facts, declaring that the people of India had no sense of honor, and were only sensible of the whip as far as it produced corporal pain. They then proceed to state that it was a government of misrule, productive of no happiness to the people, and that it so continued until subverted by the free government of Britain,--namely, the government that Mr. Hastings describes as having himself exercised there.

My Lords, if the prisoner can succeed in persuading us that these people have no laws, no rights, not even the common sentiments and feeling of men, he hopes your interest in them will be considerably lessened. He would persuade you that their sufferings are much assuaged by their being nothing new,--and that, having no right to property, to liberty, to honor, or to life, they must be more pleased with the little that is left to them than grieved for the much that has been ravished from them by his cruelty and his avarice. This inference makes it very necessary for me, before I proceed further, to make a few remarks upon this part of the prisoner's conduct, which your Lordships must have already felt with astonishment, perhaps with indignation. This man, who passed twenty-five years in India, who was fourteen years at the head of his government, master of all the offices, master of all the registers and records, master of all the lawyers and priests of all this empire, from the highest to the lowest, instead of producing to you the fruits of so many years' local and official knowledge upon that subject, has called out a long line of the rabble of travellers to inform you concerning the objects of his own government. That his learned counsel should be ignorant of those things is a matter of course. That, if left to himself, the person who has produced all this stuff should, in pursuit of his darling arbitrary power, wander without a guide, or with false guides, is quite natural. But your Lordships must have heard with astonishment, that, upon points of law relative to the tenure of lands, instead of producing any law document or authority on the usages and local customs of the country, he has referred to officers in the army, colonels of artillery and engineers, to young gentlemen just come from school, not above three or four years in the country. Good God! would not one rather have expected to hear him put all these travellers to shame by the authority of a man who had resided so long in the supreme situation of government,--to set aside all these wild, loose, casual, and silly observations of travellers and theorists? On the contrary, as if he was ignorant of everything, as if he knew nothing of India, as if he had dropped from the clouds, he cites the observations of every stranger who had been hurried in a palanquin through the country, capable or incapable of observation, to prove to you the nature of the government, and of the power he had to exercise.

My Lords, the Commons of Great Britain are not disposed to resort to the ridiculous relations of travellers, or to the wild systems which ingenious men have thought proper to build on their authority. We will take another mode. We will undertake to prove the direct contrary of his assertions in every point and particular. We undertake to do this, because your Lordships know, and because the world knows, that, if you go into a country where you suppose man to be in a servile state,--where, the despot excepted, there is no one person who can lift up his head above another,--where all are a set of vile, miserable slaves, prostrate and confounded in a common servitude, having no descendible lands, no inheritance, nothing that makes man feel proud of himself, or that gives him honor and distinction with others,--this abject degradation will take from you that kind of sympathy which naturally attaches you to men feeling like yourselves, to men who have hereditary dignities to support, and lands of inheritance to maintain, as you peers have; you will, I say, no longer have that feeling which you ought to have for the sufferings of a people whom you suppose to be habituated to their sufferings and familiar with degradation. This makes it absolutely necessary for me to refute every one of these misrepresentations; and whilst I am endeavoring to establish the rights of these people, in order to show in what manner and degree they have been violated, I trust that your Lordships will not think that the time is lost: certainly I do not think that my labor will be misspent in endeavoring to bring these matters fully before you.

In determining to treat this subject at length, I am also influenced by a strong sense of the evils that have attended the propagation of these wild, groundless, and pernicious opinions. A young man goes to India before he knows much of his own country; but he cherishes in his breast, as I hope every man will, a just and laudable partiality for the laws, liberties, rights, and institutions of his own nation. We all do this; and God forbid we should not prefer our own to every other country in the world! but if we go to India with an idea of the mean, degraded state of the people that we are to govern, and especially if we go with these impressions at an immature age, we know, that, according to the ordinary course of human nature, we shall not treat persons well whom we have learnt to despise. We know that people whom we suppose to have neither laws or rights will not be treated by us as a people who have laws and rights. This error, therefore, for our sake, for your sake, for the sake of the Indian public, and for the sake of all those who shall hereafter go in any station to India, I think it necessary to disprove in every point.

I mean to prove the direct contrary of everything that has been said on this subject by the prisoner's counsel, or by himself. I mean to prove that the people of India have laws, rights, and immunities; that they have property, movable and immovable, descendible as well as occasional; that they have property held for life, and that they have it as well secured to them by the laws of their country as any property is secured in this country; that they feel for honor, not only as much as your Lordships can feel, but with a _more_ exquisite and poignant sense than any people upon earth; and that, when punishments are inflicted, it is not the lash they feel, but the disgrace: in short, I mean to prove that every word which Montesquieu has taken from idle and 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 Lordships to Mr. Halhed's translation of that singular code,--a work which I have read with all the care that such an extraordinary view of human affairs and human constitutions deserves. I do not know whether Mr. Halhed's compilation is in evidence before your Lordships, but I do know that it is good authority on the Gentoo law. Mr. Hastings, who instructed his counsel to assert that the people have "no rights, no law," ought to be well acquainted with this work, because he claimed for a while the glory of the compilation, although Nobkissin, as your Lordships remember, was obliged to pay the expense. This book, a compilation of probably the most ancient laws in the world, if we except the Mosaic, has in it the duty of the magistrate and the duty of all ranks of subjects most clearly and distinctly ascertained; and I will give up the whole cause, if there is, from one end to the other of this code, any sort of arbitrary power claimed or asserted on the part of the magistrate, or any declaration that the people have no rights of property. No: it asserts the direct contrary.

First, the people are divided into classes and ranks, with more accuracy of distinction than is used in this country, or in any other country under heaven. Every class is divided into families, some of whom are more distinguished and more honorable than others; and they all have rights, privileges, and immunities belonging to them. Even in cases of conquest, no confiscation is to take place. A Brahmin's estate comes by descent to him; it is forever descendible to his heirs, if he has heirs; and if he has none, it belongs to his disciples, and those connected with him in the Brahminical caste. There are other immunities declared to belong to this caste, in direct contradiction to what has been asserted by the prisoner. In no case shall a Brahmin suffer death; in no case shall the property of a Brahmin, male or female, be confiscated for crime, or escheat for want of heirs. The law then goes on to other castes, and gives to each its property, and distinguishes them with great accuracy of discrimination.

Mr. Hastings says that there is no inheritable property among them. Now you have only to look at page 27, chapter the second, the title of which, is, _Of the Division of Inheritable Property_. There, after going through all the nicety of pedigree, it is declared, that, "when a father, or grandfather, a great-grandfather, or 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 assume their glebe-lands, orchards, jewels, corals, clothes, furniture, cattle, and birds, and all the estate, real and personal." My Lords, this law recognizes this kind of property; it regulates it with the nicest accuracy of distinction; it settles the descent of it in every part and circumstance. It nowhere asserts (but the direct contrary is positively asserted) that the magistrate has any power whatever over property. It states that it is the magistrate's duty to protect it; that he is bound to govern by law; that he must have a council of Brahmins to assist him in every material act that he does: in short, my Lords, there is not even a trace of arbitrary power in the whole system.

My Lords, I will mention one article, to let you see, in a very few words, that these Gentoos not only have an inheritance, but that the law has established a right of _acquiring_ possession in the property of another by prescription. The passage stands thus:--"If there be a person who is not a minor," (a man ceases to be a minor at fifteen years of age,) "nor impotent, nor diseased, nor an idiot, nor so lame as not to have power to walk, nor blind, nor one who, on going before a magistrate, is found incapable of distinguishing and attending to his own concerns, and who has not given to another person power to employ and to use his property,--if, in the face of any such person, another man has applied to his own use, during the space of twenty years, the glebe-land or houses or orchards of that person, without let or molestation from him, from the twenty-first year the property becomes invested in the person so applying such things to his own use; and any claim of the first person above mentioned upon such glebe-[land or?] houses or orchards shall by no means stand good: but if the person before mentioned comes under any of the circumstances herein before described, his claim in that case shall stand good." Here you see, my Lords, that possession shall by prescription stand good against the claims of all persons who are not disqualified from making their claims.

I might, if necessary, show your Lordships that the highest magistrate is subject to the law; that there is a case in which he is finable; that they have established rules of evidence and of pleading, and, in short, all the rules which have been formed in other countries to prevent this very arbitrary power. Notwithstanding all this, the prisoner at the bar, and his counsel, have dared to assert, in this sacred temple of justice, in the presence of this great assembly, of all the bishops, of all the peers, and of all the judges of this land, that the people of India have no laws whatever.