less, arbitrary power, which never did in any case, nor ever will in any case, time or country, produce any one of the ends of just government.

It is true, that the supreme power in every constitution of government must be absolute; and this may be corrupted into the arbitrary. But all good constitutions have established certain fixed rules for the exercise of their functions, which they rarely or ever depart from, and which rules form the security against that worst of evils, the government of will and force instead of wisdom and justice.

But though the supreme power is in a situation resembling arbitrary, yet never was there heard of in the history of the world, that is, in that mixed chaos of human wisdom and folly, such a thing as an intermediate arbitrary power-that is, of an officer of government, who is to exert authority over the people without any law at all, and who is to have the benefit of all laws, and all forms of law, when he is called to an account. For that is to let a wild beast (for such is a man without law) loose upon the people to prey on them at his pleasure; whilst all the laws, which ought to secure the people against the abuse of power, are employed to screen that abuse against the cries of the people.

This is de facto the state of our Indian government. But to establish it so in right as well as in fact, is a thing left for us to begin with,-the first of mankind.

For a subordinate, arbitrary, or even despotick power never was heard of in right, claim, or authorized practice. Least of all has it been heard of in the eastern governments, where all the instances of severity and cruelty fall upon governours, and persons intrusted with power. This would be a gross contradiction. Before Mr. Hastings none ever came before his superiours to claim it; because, if any such thing could exist, he claims the very power of that sovereign, who calls him to account.

But suppose a man to come before us, denying all the benefits of law to the people 'under him,—and yet, when he is called to account, to claim all the benefits of that law, which was made to screen mankind from the excesses of power: such a claim, I will venture to say, is a monster, that never

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existed except in the wild imagination of some theorist. cannot be admitted, because it is a perversion of the fundamental principle, that every power, given for the protection of the people below, should be responsible to the power above. It is to suppose, that the people shall have no laws with regard to him, yet when he comes to be tried, he shall claim the protection of those laws, which were made to secure the people from his violence; that he shall claim a fair trial, an equitable hearing, every advantage of counsel, (God forbid he should not have them) yet that the people under him shall have none of those advantages. The reverse is the principle of every just and rational procedure. For the people, who have nothing to use but their natural faculties, ought to be gently dealt with; but those, who are intrusted with an artificial and instituted authority, have in their hands a great deal of the force of other people; and as their temptations to injustice are greater, so their means are infinitely more effectual for mischief by turning the powers given for the preservation of society to its destruction; so that if an arbitrary procedure be justifiable, a strong one I am sure is, it is when used against those, who pretend to use it against others.

My lords, I will venture to say of the governments of Asia, that none of them ever had an arbitrary power; and, if any governments had an arbitrary power, they cannot delegate it to any persons under them; that is, they cannot so delegate it to others as not to leave them accountable on the principles, upon which it was given. As this is a contradiction in terms, a gross absurdity as well as a monstrous wickedness, let me say, for the honour of human nature, that although undoubtedly we may speak it with the pride of England, that we have better institutions for the preservation of the rights of men, than any other country in the world; yet I will venture to say, that no country has wholly meant, or ever meant, to give this power.

As it cannot exist in right on any rational and solid principles of government, so neither does it exist in the constitution of oriental governments, and I do insist upon it, that oriental governments know nothing of arbitrary power.

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have taken as much pains as I could to examine into the constitutions of them. I have been endeavouring to inform myself at all times on this subject; of late, my duty has led me to a more minute inspection of them, and I do challenge the whole race of man to show me any of the oriental governours claiming to themselves a right to act by arbitrary will.

The greatest part of Asia is under Mahomedan governments. To name a Mahomedan government, is to name a government by law. It is a law enforced by stronger sanctions than any law, that can bind a Christian sovereign. Their law is believed to be given by God, and it has the double sanction of law and of religion, with which the prince is no more authorized to dispense than any one else. And, if any man will produce the Koran to me, and will but show me one text in it, that authorizes in any degree an arbitrary power in the government, I will confess, that I have read that book, and been conversant in the affairs of Asia, in vain. There is not such a syllable in it; but, on the contrary, against oppressours by name every letter of that law is fulminated. There are interpreters established throughout all Asia, to explain that law, an order of priesthood, whom they call men of the law. These men are conservators of the law; and, to enable them to preserve it in its perfection, they are secured from the resentment of the sovereign, for he cannot touch them. Even their kings are not always vested with a real supreme power; but the government is in some degree republican.

To bring this point a little nearer home, since we are challenged thus, since we are led into Asia, since we are called upon to make good our charge on the principles of the governments there, rather than on those of our own country, (which I trust your lordships will oblige him finally to be governed by, puffed up as he is with the insolence of Asia) the nearest to us of the governments he appeals to is that of the Grand Seignior, the emperour of the Turks-He an arbitrary power! Why he has not the supreme power of his own country. Every one knows, that the Grand Seignior is exalted high in titles, as our prerogative lawyers exalt an

abstract sovereign, and he cannot be exalted higher in our books. I say he is destitute of the first character of sovereign power. He cannot lay a tax upon his people.

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The next part, in which he misses of a sovereign power, is, that he cannot dispose of the life, of the property, or of the liberty of any of his subjects, but by what is called the fetfa, or sentence of the law. He cannot declare peace or war without the same sentence of the law; so much is he, more than European sovereigns, a subject of strict law, that he cannot declare war or peace without it. Then, if he can neither touch life nor property, if he cannot lay a tax on his subjects, or declare peace or war, I leave it to your lordships' judgment, whether he can be called, according to the principles of that constitution, an arbitrary power. Turkish sovereign, if he should be judged by the body of that law to have acted against its principles, (unless he happens to be secured by a faction of the soldiery) is liable to be deposed on the sentence of that law, and his successour comes in under the strict limitations of the antient law of that country neither can he hold his place, dispose of his succession, or take any one step whatever, without being bound by law. Thus much may be said, when gentlemen talk of the affairs of Asia, as to the nearest of Asiatick sovereigns; and he is more Asiatick than European, he is a Mahomedan sovereign; and no Mahomedan is born, who can exercise any arbitrary power at all, consistently with their constitution: insomuch that this chief magistrate, who is the highest executive power among them, is the very person, who, by the constitution of the country, is the most fettered by law.

Corruption is the true cause of the loss of all the benefits of the constitution of that country. The practice of Asia, as the gentleman at your bar has thought fit to say, is what he holds to; the constitution he flies away from. The question is, whether you will take the constitution of the country as your rule, or the base practices of those usurpers, robbers, and tyrants, who have subverted it. Undoubtedly much blood, murder, false imprisonment, much peculation, cruelty and robbery are to be found in Asia; and if, instead

of going to the sacred laws of the country, he chooses to resort to the iniquitous practices of it, and practices authorized only by publick tumult, contention, war, and riot, he may indeed find as clear an acquittal in the practices, as he would find condemnation in the institutions of it. He has rejected the law of England. Your lordships will not suffer

it. God forbid! For my part I should have no sort of objection to let him choose his law-Mahomedan, Tartarean, Gentû. But if he disputes, as he does, the authority of an act of parliament, let him state to me that law, to which he means to be subject, or any law, which he knows, that will justify his actions. I am not authorized to say, that I shall, even in that case, give up what is not in me to give up, because I represent an authority, of which I must stand in awe; but, for myself, I shall confess, that I am brought to publick shame, and am not fit to manage the great interests committed to my charge. I therefore again repeat of that Asiatick government, with which we are best acquainted, which has been constituted more in obedience to the laws of Mahomed, than any other, that the sovereign cannot, agreeably to that constitution, exercise any arbitrary power whatever.

The next point for us to consider is, whether or no the Mahomedan constitution of India authorizes that power. The gentleman at your lordships' bar has thought proper to say, that it will be happy for India (though soon after he tells you it is an happiness they can never enjoy) "when the despotick institutes of Genghiz Khân or Tamerlane shall give place to the liberal spirit of a British legislature; and," says he," I shall be amply satisfied in my present prosecution, if it shall tend to hasten the approach of an event so beneficial to the great interests of mankind."

My lords, you have seen what he says about an act of parliament. Do you not now think it rather an extraordinary thing, that any British subject should, in vindication of the authority which he has exercised, here quote the names and institutes, as he calls them, of fierce conquerours, of men, who were the scourges of mankind, whose power was a power, which they held by force only?