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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 com
iny, 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 recognised 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 point 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, 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 Ghinges Khân and Tamerlane. This arbitrary will he claims, to the exclusion of the Gentoo law, the Mahomedan 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 Aliverdi Khân, Cossim Ali Khân, Sujah Dowlah Khân, and all those Khâns 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.
On one side, your lordships 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 assert that the direct contrary of this is true. And to prove our assertion we have referred you to the institutes of Ghinges Khân and of Tamerlane : we have referred you to the Mahomedan 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 every thing, as they ought to be in the true and natural order of things. God 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 God has vested
power any man or any set of men. This is the law that we insist upon, and these are the principles upon which your lordships are to try the prisoner at your bar.
Let me remind your lordships, 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 man
ners, 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 Nobkissin paid for ; we take the benefit of them: we know and speak after knowledge of them. And although I believe his counsel have never read them, I should be sorry to stand in this place, if there was one word and tittle 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 institutes, either in their general spirit, or in any particular passage, to which he has the impudence to appeal, in the assumption 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 institutes 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 any thing 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 assumed 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 institutions, the mildness of their laws, and the equity of their government.
Even if these conquerors had promulgated arbitrary institutes 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 any thing from the subject, and disposing of his person and property ;-we now come to his second assertion, that he was the true, full, and perfect representative of that sovereignty in India.
In opposition to this assertion 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