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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 empowering him to exact his right from himself, or by the claimant appealing for assistance to the collective body of Mussulmans.” *
Here your lordships see that the caliph, who is a magistrate of the highest authority which can exist among the Mahomedans, 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 lordships, 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 Mahomedans. This doctrine is laid down in many places, but particularly in the 95th page of the second volume of Hamilton's Hedaia.
Mr. Hastings has told you what a sovereign is, and what sovereignty is all over India ; and I wish your lordships to pay particular attention to this part of his defence, and to compare Mr. Hastings's idea of sovereignty with the declaration of the Mahomedan law. The tenth chapter of these laws treats of rebellion, which is defined an act of warfare against the sovereign. You are then 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 Imam, (as appears in the Fattahal-Kadeen). By the rightful Imâm, 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
* Hedaia, 2 vol. 34.
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 tithe and tribute according to law; who out of the public treasury pays what is due to learned men, preachers, Kâzees, Mooftis, 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 Imâm, whence it is not incumbent to support such a one; but rather it is incumbent to oppose him and make war upon him, until such time as he either adopt a proper mode of conduct, or be slain." *
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 Mahomedan 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 sons 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 Mahomedan laws, or by any law, custom, or usage, which has ever been recognised as legal and valid.
But, my lords, the prisoner defends himself by example;
and, good God! what are the examples which he has chosen ? Not the local usages and constitutions of Oude, or of any other province; not the general practice of a respectable emperor, like Akbar, which, if it would not fatigue your lordships, I could show to be the very reverse of this man's. No, my lords, the prisoner, his learned counsel here, and his unlearned cabinet council, who wrote this defence, have ransacked the tales of travellers for examples, and have selected materials from that mass of loose remarks and crude conceptions, to prove that the natives of India have neither rights, laws, orders, nor distinction.
I shall now proceed to show your lordships, that the people of India have a keen sense and feeling of disgrace and dishonor. In proof of this I appeal to well known facts. There have been women tried in India for offences, and acquitted, who would not survive the disgrace even of acquittal. There have been Hindoo soldiers condemned at a courtmartial, who have desired to be blown from the mouth of a cannon, and have claimed rank and precedence at the last moment of their existence; and yet these people are said to have no sense of dishonor! Good God! that we should be under the necessity of proving in this place all these things; and of disproving that all India was given in slavery to this man !
But, my lords, they will show you, they say, that Ghinges Khân, Khouli Khân, 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, Ghinges Khân, or Khouli Khân? 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 Ghinges Khân 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 Ghinges Khân,) have thought proper to accuse the managers for the Commons of wandering in all the fabulous regions of Indian mythology. My lords, the managers are sensible of the dignity of their place ; they have never offered any thing to you, without reason. We are not persons of an age-of a disposition—of a character, representative or nat
ural, 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 Mahomedan 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 Hindoostan 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 Khân. 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