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FRIDAY, 30TH MAY, 1794.
SECOND DAY OF REPLY.
MY LORDS,-On the day of the sitting of this court, when I had the honor of appearing before you by the order of my fellow managers, I stated to you their observations and my own, upon two great points; one the demeanor of the prisoner at the bar, during his trial, and the other the principles of his defence. I compared that demeanor with the behavior of some of the greatest men in this kingdom, who have, on account of their offences, been brought to your bar, and who have seldom escaped your lordships' justice. I put the decency, humility, and propriety of the most distinguished men's behavior, in contrast with the shameless effrontery of this prisoner, who has presumptuously made a recriminatory charge against the House of Commons, and answered their impeachment by a counter impeachment, explicitly accusing them of malice, oppression, and the blackest ingratitude.
My lords, I next stated, that this recriminatory charge consisted of two distinct parts, injustice and delay. To the injustice we are to answer, by the nature and proof of the charges which we have brought before you; and to the delay, my lords, we have answered in another place. Into one of the consequences of the delay, the ruinous expense which the prisoner complains of, we have desired your lord
ships to make an inquiry, and have referred you to facts and witnesses, which will remove this part of the charge.
With regard to ingratitude, there will be a proper time for animadversion on this charge. For in considering the merits that are intended to be set off against his crimes, we shall have to examine into the nature of those merits, and to ascertain how far they are to operate, either as the prisoner designs they shall operate in his favor, as presumptive proofs that a man of such merits could not be guilty of such crimes, or as a sort of set-off to be pleaded in mitigation of his offences. In both of these lights we shall consider his services, and in this consideration we shall determine the justice of his charge of ingratitude.
My lords, we have brought the demeanor of the prisoner before you, for another reason. We are desirous that your lordships may be enabled to estimate, from the proud presumption and audacity of the criminal at your bar, when he stands before the most awful tribunal in the world, accused by a body representing no less than the sacred voice of his country-what he must have been when placed in the seat of pride and power. What must have been the insolence of that man towards the natives of India, who, when called here to answer for enormous crimes, presumes to behave, not with the firmness of innocence, but with the audacity and hardness of guilt?
It may be necessary that I should recall to your lordships' recollection the principles of the accusation and of the defence. Your lordships 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 assign 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 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 company, or in the name of his majesty, or under any other 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, "The 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 in 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