« PreviousContinue »
erto we have moved within the narrow circle of municipal justice. I am afraid, that, from the habits acquired by moving within a circumscribed sphere, we may be induced rather to endeavour at forcing nature into that municipal circle, than to enlarge the circle of national justice to the necessities of the empire we have obtained.
This is the only thing, which does create any doubt or difficulty in the minds of sober people. But there are those, who will not judge so equitably. Where two motives, neither of them perfectly justifiable, may be assigned, the worst has the chance of being preferred. If, from any appearance of chicane in the court, justice should fail, all men will say, better there were no tribunals at all. In my humble opinion, it would be better a thousand times to give all complainants the short answer the Dey of Algiers gave a British ambassadour, representing certain grievances suffered by the British merchants,—" My friend,” (as the story is related by Dr. Shawe) “ do not you know, that my sutjects are a band of robbers, and that I am their captain ?" -better it would be a thousand times, and a thousand thousand times more manly, than an hypocritical process, which, under a pretended reverence to punctilious ceremonies and observances of law, abandons mankind, without help and resource, to all the desolating consequences of arbitrary power.
The conduct and event of this cause will put an end to such doubts, wherever they may be entertained. Your lordships will exercise the great plenary powers, with which you are invested, in a manner, that will do honour to the protecting justice of this kingdom, that will completely avenge the great people, who are subjected to it. You will not suffer your proceedings to be squared by any rules, but by their necessities, and by that law of a common natyre, which cements them to us, and us to them.
The reports to the contrary have been spread abroad with uncommon industry ; but they will be speedily refuted by the humanity, simplicity, dignity, and nobleness of your lordships' justice.
Having said all, that I am instructed to say, concerning the process, which the House of Commons has used, con
cerning the crimes, which they have chosen, concerning the criminal, upon whom they attach the crimes, and concerning the evidence, wbich they mean to produce; I am now to proceed to open that part of the business, which falls to
It is rather an explanation of the circumstances, than an enforcement of the crimes.
Your lordships of course will be apprized, that this cause, is not what occurs every day in the ordinary round of municipal affairs ; that it has a relation to many things, that it touches many points in many places, which are wholly removed from the ordinary beaten orbit of our English affairs. In other affairs, every allusion immediately meets its point of reference; nothing can be started, that does not immediately awaken to your attention something in your own laws and usages, which you meet with every day in the ordinary transactions of life. But here you are caught, as it were, into another world; you are to have the way pioneered before you. As the subject is new, it must be explained; as it is intricate as well as new, that explanation can be only comparatively short: and therefore, knowing your lordships to be possessed, along with all other judicial virtues, of the first and foundation of them all, judicial patience, I hope, that you will not grudge a few hours to the explanation of that, which has cost the Commons fourteen years assiduous application to acquire—that your lordships will not disdain to grant a few hours to what has cost the people of India upwards of thirty years of that innate, inveterate, hereditary patience to endure.
My lords, the powers, which Mr. Hastings is charged with having abused, are the powers delegated to him by the East-India Company. The East-India Company itself acts under two very dissimilar sorts of powers, derived from two sources very remote from each other. The first source of its power is under charters, which the Crown of Great Britain was authorized by act of parliament to grant ; the other is from several charters derived from the emperour of the Moguls, the person, in whose dominions they were chiefly conversant :-particularly that great charter, by which, in the year 1766, they acquired the high stewardship of the
kingdoms of Bengal, Bahar, and Orissa. Under those two bodies of charters, the East-India Company, and all their servants, are authorized to act.
As to those of the first description, it is from the British charters, that they derive the capacity, by which they are considered as a publick body, or at all capable of any publick function. It is from thence they acquire the capacity to take from any power whatsoever any other charter, to acquire any other offices, or to hold any other possessions. This, being the root and origin of their power, renders them responsible to the party, from whom all their immediate and consequential powers are derived. As they have emanated from the supreme power of this kingdom, the whole body and the whole train of their servants, the corporate body as a corporate body, individuals as individuals, are responsible to the high justice of this kingdom. In delegating great power to the East India Company, this kingdom has not released its sovereignty ; on the contrary, the responsibility of the company is increased by the greatness and sacredness of the powers, that have been intrusted to it. Attempts have been made abroad to circulate a notion, that the acts of the East-India Company, and their servants, are not cognizable here. I hope on this occasion your lordships will show, that this nation never did give a power, without annexing to it a proportionable degree of responsibility.
As to their other powers, the company derives them from the Mogul empire by various charters from that crown, and from the great magistrates of that crown, and particularly by the Mogul charter of 1765, by which they obtained the Duanni, that is, the office of Lord High Steward of the kingdoms of Bengal, Bahar, and Orissa. By that charter they bound themselves (and bound inclusively all their servants) to perform all the duties belonging to that new office, and to be held by all the ties belonging to that new relation. If the Mogul empire had existed in its vigour, they would have been bound under that responsibility, to observe the laws, rights, usages, and customs of the natives; and to pursue their benefit in all things. For this duty was inherent in the nature, institution, and purpose of the
office, which they received. If the power of the sovereign, from whom they derived these powers, should by any revolution in human affairs be annihilated or suspended, their duty to the people below them, which was created under the Mogul charter, is not annihilated, is not even suspend
and for their responsibility in the performance of that duty, they are thrown back upon that country (thank God, not annihilated) from whence their original power, and all subsequent derivative powers, have flowed. When the company acquired that high office in India, an English corporation became an integral part of the Mogul empire. When Great Britain virtually assented to that grant of office, and afterwards took advantage of it, Great Britain guarantied the performance of all its duties. Great Britain entered into a virtual act of union with that country; by which we bound ourselves as securities to preserve the people in all the rights, laws, and liberties, which their natural original sovereign was bound to support, if he had been in condition to support them. By the disposition of events the two duties, flowing from two different sources, are united in one. The people of India therefore come, in the name of the Commons of Great Britain, but in their own right, to the bar of this House, before the supreme royal justice of this kingdom, from whence originally all the powers, under which they have suffered, were derived.
It may be a little necessary, when we are stating the powers the company have derived from their charter, and which we state Mr. Hastings to have abused, to state in as short and as comprehensive words as I can (for the matter is large indeed) what the constitution of that company is; I mean chiefly, what it is in reference to its Indian service, the great theatre of the abuse. Your lordships will naturally conceive, that it is not to inform you, but to revive circumstances in your memory, that I enter into this detail.
You will therefore recollect, that the East-India Company had its origin about the latter end of the reign of Elizabeth, a period of projects, when all sorts of commercial adventures, companies, and monopolies, were in fashion. At
that time the company was constituted, with extensive powers for increasing the commerce and the honour of this country ; because increasing its commerce, without increasing its honour and reputation, would have been thought at that time, and will be thought now, a bad bargain for the country. The powers of the company were, under that charter, merely commercial. By degrees, as the theatre of operation was distant ; as its intercourse was with many great, some barbarous, and all of them armed nations; nations, in which not only the sovereign but the subjects were armed; it was found necessary to enlarge their powers. The first power they obtained was a power of naval discipline in their ships; a power, which has been since dropped ; the next was a power of law martial ; the next was a power of civil, and, to a degree, of criminal jurisdiction, within their own factories, upon their own people, and their own servants; the next was, and here was a stride indeed, the power of peace and war. Those high and almost incommunicable prerogatives of sovereignty, which were hardly ever known before to be parted with to any subjects, and which, in several states, were not wholly entrusted to the prince or head of the commonwealth himself, were given to the East-India Company. That company acquired these powers about the end of the reign of Charles the Second ; and they were afterwards more fully, as well as more legally, given by parliament after the revolution. From this time, the East-India Company was no longer merely a mercantile company, formed for the extension of the British commerce ; it more nearly resembled a delegation of the whole power and sovereignty of this kingdom, sent into the East. From that time the company ought to be considered as a subordinate sovereign power ; that is, sovereign with regard to the objects, which it touched ; subordinate with regard to the power, from whence its great trust was derived. Under these successive arrangements things took, a course very different from their usual order. A new disposition took place, not dreamt of in the theories of speculative politicians ; and of which few examples, in the least resembling it, have been seen in the modern world, none