The Works of the Right Honourable Edmund Burke, Vol. 09 (of 12)

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 Emperor 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. 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 fetwah, 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. A 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 successor comes in under the strict limitations of the ancient 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 Asiatic sovereigns: and he is more Asiatic 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 public 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, Tartarian, Gentoo. 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 public shame, and am not fit to manage the great interests committed to my charge. I therefore again repeat of that Asiatic government with which we are best acquainted, which has been constituted more in obedience to the laws of Mahomet 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 despotic 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 conquerors, of men who were the scourges of mankind, whose power was a power which they held by force only?

As to the institutes of Genghiz Khân, which he calls arbitrary institutes, I never saw them. If he has that book, he will oblige the public by producing it. I have seen a book existing, called Yassa of Genghiz Khân; the other I never saw. If there be any part of it to justify arbitrary power, he will produce it. But if we may judge by those ten precepts of Genghiz Khân which we have, there is not a shadow of arbitrary power to be found in any one of them. Institutes of arbitrary power! Why, if there is arbitrary power, there can be no institutes.

As to the institutes of Tamerlane, here they are in their original, and here is a translation. I have carefully read every part of these institutes; and if any one shows me one word in them in which the prince claims in himself arbitrary power, I again repeat, that I shall for my own part confess that I have brought myself to great shame. There is no book in the world, I believe, which contains nobler, more just, more manly, more pious principles of government than this book, called the Institutions of Tamerlane. Nor is there one word of arbitrary power in it, much less of that arbitrary power which Mr. Hastings supposes himself justified by,—namely, a delegated, subordinate, arbitrary power. So far was that great prince from permitting this gross, violent, intermediate arbitrary power, that I will venture to say the chief thing by which he has recommended himself to posterity was a most direct declaration of all the wrath and indignation of the supreme government against it. But here is the book. It contains the institutes of the founder of the Mogul empire, left as a sacred legacy to his posterity, as a rule for their conduct, and as a means of preserving their power.

"Be it known to my fortunate sons, the conquerors of kingdoms, to my mighty descendants, the lords of the earth, that, since I have hope in Almighty God that many of my children, descendants, and posterity shall sit upon the throne of power and regal authority, upon this account, having established laws and regulations for the well governing of my dominions, I have collected together those regulations and laws as a model for others, to the end that, every one of my children, descendants, and posterity acting agreeably thereto, my power and empire, which I acquired through hardships and difficulties and perils and bloodshed, by the Divine favor, and by the influence of the holy religion of Mahomet, (God's peace be up on him!) and with the assistance of the powerful descendants and illustrious followers of that prophet, may be by them preserved. And let them make these regulations the rule of their conduct in the affairs of their empire, that the fortune and the power which shall descend from me to them may be safe from discord and dissolution.

"Now, therefore, be it known to my sons, the fortunate and the illustrious, to my descendants, the mighty subduers of kingdoms, that, in like manner as I by twelve maxims, which I established as the rule of my conduct, attained to regal dignity, and with the assistance of these maxims conquered and governed kingdoms, and decorated and adorned the throne of my empire, let them also act according to these regulations, and preserve the splendor of mine and their dominions.

"And among the rules which I established for the support of my glory and empire, the first was this,—that I promoted the worship of Almighty God, and propagated the religion of the sacred Mahomet throughout the world, and at all times and in all places supported the true faith.

"Secondly. With the people of the twelve classes and tribes I conquered and governed kingdoms, and with them I strengthened the pillars of my fortune, and from them I formed my assembly.

"Thirdly. By consultation and deliberation and provident measures, by caution and by vigilance, I vanquished armies, and I reduced kingdoms to my authority. And I carried on the business of my empire by complying with times and occasions, and by generosity, and by patience, and by policy; and I acted with courteousness towards my friends and towards my enemies.

"Fourthly. By order and by discipline I regulated the concerns of my government; and by discipline and by order I so firmly established my authority, that the emirs and the viziers and the soldiers and the subjects could not aspire beyond their respective degrees; and every one of them was the keeper of his own station.

"Fifthly. I gave encouragement to my emirs and to my soldiers, and with money and with jewels I made them glad of heart; and I permitted them to come into the banquet; and in the field of blood they hazarded their lives. And I withheld not from them my gold nor my silver. And I educated and trained them to arms; and to alleviate their sufferings, I myself shared in their labors and in their hardships, until with the arm of fortitude and resolution, and with the unanimity of my chiefs and my generals and my warriors, by the edge of the sword, I obtained possession of the thrones of seven-and-twenty kings, and became the king and the ruler of the kingdoms of Eraun, and of Tooraun, and of Room, and of Mughrib, and of Shaum, and of Missur, and of Erauk-a-Arrub, and of Ajjum, and of Mauzinduraun, and of Kylaunaut, and of Shurvaunaut, and of Azzurbauejaun, and of Fauris, and of Khorausaun, and of the Dusht of Jitteh, and the Dusht of Kipchauk, and of Khauruzm, and Khuttun, and of Kauboolistaun, and of Hindostaun, and of Bauktur Zemeen.

"And when I clothed myself in the robe of empire, I shut my eyes to safety, and to the repose which is found on the bed of ease. And from the twelfth year of my age I travelled over countries, and combated difficulties, and formed enterprises, and vanquished armies, and experienced mutinies amongst my officers and my soldiers, and was familiarized to the language of disobedience; and I opposed them with policy and with fortitude, and I hazarded my person in the hour of danger; until in the end I vanquished kingdoms and empires, and established the glory of my name.

"Sixthly. By justice and equity I gained the affections of the people of God; and I extended my clemency to the guilty as well as to the innocent; and I passed that sentence which truth required; and by benevolence I gained a place in the hearts of men; and by rewards and punishments I kept both my troops and my subjects divided between hope and fear. And I compassionated the lower ranks of my people, and those who were distressed. And I gave gifts to the soldiers.

"And I delivered the oppressed from the hand of the oppressor; and after proof of the oppression, whether on the property or the person, the decision which I passed between them was agreeable to the sacred law. And I did not cause any one person to suffer for the guilt of another.

"Those who had done me injuries, who had attacked my person in battle, and had counteracted my schemes and enterprises, when they threw themselves on my mercy, I received them with kindness, I conferred on them additional honors, and I drew the pen of oblivion over their evil actions; and I treated them in such sort, that, if suspicion remained in their hearts, it was plucked out entirely.

"Seventhly, I selected out, and treated with esteem and veneration, the posterity of the Prophet, and the theologians, and the teachers of the true faith, and the philosophers, and the historians. And I loved men of courage and valor; for God Almighty loveth the brave. And I associated with good and learned men; and I gained their affections, and I entreated their support, and I sought success from their holy prayers. And I loved the dervishes and the poor; and I oppressed them not, neither did I exclude them from my favor. And I permitted not the evil and the malevolent to enter into my council; and I acted not by their advice; and I listened not to their insinuations to the prejudice of others.

"Eighthly. I acted with resolution; and on whatever undertaking I resolved, I made that undertaking the only object of my attention; and I withdrew not my hand from that enterprise, until I had brought it to a conclusion. And I acted according to that which I said. And I dealt not with severity towards any one, and I was not oppressive in any of my actions; that God Almighty might not deal severely towards me, nor render my own actions oppressive unto me.

"And I inquired of learned men into the laws and regulations of ancient princes, from the days of Adam to those of the Prophet, and from the days of the Prophet down to this time. And I weighed their institutions and their actions and their opinions, one by one. And from their approved manners and their good qualities I selected models. And I inquired into the causes of the subversion of their power, and I shunned those actions which tend to the destruction and overthrow of regal authority. And from cruelty and from oppression, which are the destroyers of posterity and the bringers of famine and of plagues, I found it was good to abstain.

"Ninthly. The situation of my people was known unto me. And those who were great among them I considered as my brethren; and I regarded the poor as my children. And I made myself acquainted with the tempers and the dispositions of the people of every country and of every city. And I contracted intimacies with the citizens and the chiefs and the nobles; and I appointed over them governors adapted to their manners and their dispositions and their wishes. And I knew the circumstances of the inhabitants of every province. And in every kingdom I appointed writers of intelligence, men of truth and integrity, that they might send me information of the conduct and the behavior and the actions and the manners of the troops and of the inhabitants, and of every occurrence that might come to pass amongst them. And if I discovered aught contrary to their information, I inflicted punishment on the intelligencer; and every circumstance of cruelty and oppression in the governors and in the troops and in the inhabitants, which reached my ears, I chastised agreeably to justice and equity.

"Tenthly. Whatever tribe, and whatever horde, whether Toork, or Taucheek, or Arrub, or Ajjum, came in unto me, I received their chiefs with distinction and respect, and their followers I honored according to their degrees and their stations; and to the good among them I did good, and the evil I delivered over to their evil actions.

"And whoever attached himself unto me, I forgot not the merit of his attachment, and I acted towards him with kindness and generosity; and whoever had rendered me services, I repaid the value of those services unto him. And whoever had been my enemy, and was ashamed thereof, and, flying to me for protection, humbled himself before me, I forgot his enmity, and I purchased him with liberality and kindness.

"In such manner Share Behraum, the chief of a tribe, was along with me. And he left me in the hour of action, and he united with the enemy, and he drew forth his sword against me. And at length my salt, which he had eaten, seized upon him; and he again fled to me for refuge, and humbled himself before me. As he was a man of illustrious descent, and of bravery, and of experience, I covered my eyes from his evil actions; and I magnified him, and I exalted him to a superior rank, and I pardoned his disloyalty in consideration of his valor.

"Eleventhly. My children, and my relations, and my associates, and my neighbors, and such as had been connected with me, all these I distinguished in the days of my fortune and prosperity, and I paid unto them their due. And with respect to my family, I rent not asunder the bands of consanguinity and mercy; and I issued not commands to slay them, or to bind them with chains.

"And I dealt with every man, whatever the judgment I had formed of him, according to my own opinion of his worth. As I had seen much of prosperity and adversity, and had acquired knowledge and experience, I conducted myself with caution and with policy towards my friends and towards my enemies.

"Twelfthly. Soldiers, whether associates or adversaries, I held in esteem,—those who sell their permanent happiness to perishable honor, and throw themselves into the field of slaughter and battle, and hazard their lives in the hour of danger.

"And the man who drew his sword on the side of my enemy, and committed hostilities against me, and preserved his fidelity to his master, him I greatly honored; and when such a man came unto me, knowing his worth, I classed him with my faithful associates; and I respected and valued his fidelity and his attachment.

"And the soldier who forgot his duty and his honor, and in the hour of action turned his face from his master, and came in unto me, I considered as the most detestable of men.

"And in the war between Touktummish Khaun, his emirs forgot their duty to Touktummish, who was their master and my foe, and sent proposals and wrote letters unto me. And I uttered execrations upon them, because, unmindful of that which they owed to their lord, they had thrown aside their honor and their duty, and came in unto me. I said unto myself, 'What fidelity have they observed to their liege lord? what fidelity will they show unto me?'

"And, behold, it was known unto me by experience, that every empire which is not established in morality and religion, nor strengthened by regulations and laws, from that empire all order, grandeur, and power shall pass away. And that empire may be likened unto a naked man, who, when exposed to view, commandeth the eye of modesty to be covered; and it is like unto a house which hath neither roof nor gates nor defences, into which whoever willeth may enter unmolested.

"THEREFORE I established the foundation of my empire on the morality and the religion of Islaum; and by regulations and laws I gave it stability. And by laws and by regulations I executed every business and every transaction that came before me in the course of my government."

I need not read any further, or I might show your Lordships the noble principles, the grand, bold, and manly maxims, the resolution to abstain from oppression himself, and to crush it in the governors under him, to be found in this book, which Mr. Hastings has thought proper to resort to as containing what he calls arbitrary principles.

But it is not in this instance only that I must do justice to the East. I assert that their morality is equal to ours, in whatever regards the duties of governors, fathers, and superiors; and I challenge the world to show in any modern European book more true morality and wisdom than is to be found in the writings of Asiatic men in high trust, and who have been counsellors to princes. If this be the true morality of Asia, as I affirm and can prove that it is, the plea founded on Mr. Hastings's geographical morality is annihilated.

I little regard the theories of travellers, where they do not relate the facts on which they are founded. I have two instances of facts attested by Tavernier, a traveller of power and consequence, which are very material to be mentioned here, because they show that in some of the instances recorded, in which the princes of the country have used any of those cruel and barbarous executions which make us execrate them, it has been upon governors who have abused their trust,—and that this very Oriental authority to which Mr. Hastings appeals would have condemned him to a dreadful punishment. I thank God, and I say it from my heart, that even for his enormous offences there neither is nor can be anything like such punishments. God forbid that we should not as much detest out-of-the-way, mad, furious, and unequal punishments as we detest enormous and abominable crimes! because a severe and cruel penalty for a crime of a light nature is as bad and iniquitous as the crime which it pretends to punish. As the instances I allude to are curious, and as they go to the principles of Mr. Hastings's defence, I shall beg to quote them.

The first is upon a governor who did what Mr. Hastings says he has a power delegated to him to do: he levied a tax without the consent of his master. "Some years after my departure from Com," says Tavernier, "the governor had, of his own accord, and without any communication with the king, laid a small impost upon every pannier of fruit brought into the city, for the purpose of making some necessary reparations in the walls and bridges of the town. It was towards the end of the year 1632 that the event I am going to relate happened. The king, being informed of the impost which the governor had laid upon the fruit, ordered him to be brought in chains to court. The king ordered him to be exposed to the people at one of the gates of the palace; then he commanded the son to pluck off the mustachios of his father, to cut off his nose and ears, to put out his eyes, and then cut off his head. The king then told the son to go and take possession of the government of his father, saying, See that you govern better than this deceased dog, or thy doom shall be a death more exquisitely tormenting."

My Lords, you are struck with horror, I am struck with horror, at this punishment. I do not relate it to approve of such a barbarous act, but to prove to your Lordships, that, whatever power the princes of that country have, they are jealous of it to such a degree, that, if any of their governors should levy a tax, even the most insignificant, and for the best purposes, he meets with a cruel punishment. I do not justify the punishment; but the severity of it shows how little of their power the princes of that country mean to delegate to their servants, the whole of which the gentleman at your bar says was delegated to him.

There is another case, a very strong one, and that is the case of presents, which I understand is a custom admitted throughout Asia in all their governments. It was of a person who was raised to a high office; no business was suffered to come before him without a previous present. "One morning, the king being at this time on a hunting party, the nazar came to the tent of the king, but was denied entrance by the meter, or master of the wardrobe. About the same time the king came forth, and, seeing the nazar, commanded his officers to take off the bonnet from the head of that dog that took gifts from his people, and that he should sit three days bareheaded in the heat of the sun, and as many nights in the air. Afterwards he caused him to be chained about the neck and arms, and condemned him to perpetual imprisonment, with a mamoudy a day for his maintenance; but he died for grief within eight days after he was put in prison."

Do I mean, by reading this to your Lordships, to express or intimate an approbation either of the cruelty of the punishment or of the coarse barbarism of the language? Neither one nor the other. I produce it to your Lordships to prove to you, from this dreadful example, the horror which that government felt, when any person subject to it assumed to himself a privilege to receive presents. The cruelty and severity exercised by these princes is not levelled at the poor unfortunate people who complain at their gates, but, to use their own barbarous expression, to dogs that impose taxes and take presents. God forbid I should use that language! The people, when they complain, are not called dogs and sent away, but the governors, who do these things against the people: they are called dogs, and treated in that cruel manner. I quote them to show that no governors in the East, upon any principle of their constitution or any good practice of their government, can lay arbitrary imposts or receive presents. When they escape, it is probably by bribery, by corruption, by creating factions for themselves in the seraglio, in the country, in the army, in the divan. But how they escape such punishments is not my business to inquire; it is enough for me that the constitution disavows them, that the princes of the country disavow them,—that they revile them with the most horrible expressions, and inflict dreadful punishments on them, when they are called to answer for these offences. Thus much concerning the Mahomedan laws of Asia. That the people of Asia have no laws, rights, or liberty, is a doctrine that wickedly is to be disseminated through this country. But I again assert, every Mahomedan government is, by its principles, a government of law.

I shall now state, from what is known of the government of India, that it does not and cannot delegate, as Mr. Hastings has frequently declared, the whole of its powers and authority to him. If they are absolute, as they must be in the supreme power, they ought to be arbitrary in none; they were, however, never absolute in any of their subordinate parts, and I will prove it by the known provincial constitutions of Hindostan, which are all Mahomedan, the laws of which are as clear, as explicit, and as learned as ours.

The first foundation of their law is the Koran. The next part is the Fetwah, or adjudged cases by proper authority, well known there. The next, the written interpretations of the principles of jurisprudence: and their books are as numerous upon the principles of jurisprudence as in any country in Europe. The next part of their law is what they call the Kanon,—that is, a positive rule equivalent to acts of Parliament, the law of the several powers of the country, taken from the Greek word Κανών, which was brought into their country, and is well known. The next is the Rawaj-ul-Mulk, or common law and custom of the kingdom, equivalent to our common law. Therefore they have laws from more sources than we have, exactly in the same order, grounded upon the same authority, fundamentally fixed to be administered to the people upon these principles.

The next thing is to show that in India there is a partition of the powers of the government, which proves that there is no absolute power delegated.

In every province the first person is the Subahdar or Nazim, or Viceroy: he has the power of the sword, and the administration of criminal justice only. Then there is the Dewan, or High Steward: he has the revenue and all exchequer causes under him, to be governed according to the law and custom and institutions of the kingdom. The law of inheritances, successions, and everything that relates to them, is under the Cadi, in whose court these matters are tried. But this, too, was subdivided. The Cadi could not judge, but by the advice of his assessors. Properly in the Mahomedan law there is no appeal, only a removal of the cause; but when there is no judgment, as none can be when the court is not unanimous, it goes to the general assembly of all the men of the law. There are, I will venture to say, other divisions and subdivisions; for there are the Kanongoes, who hold their places for life, to be the conservators of the canons, customs, and good usages of the country: all these, as well as the Cadi and the Mufti, hold their places and situations, not during the wanton pleasure of the prince, but on permanent and fixed terms for life. All these powers of magistracy, revenue, and law are all different, consequently not delegated in the whole to any one person.

This is the provincial constitution, and these the laws of Bengal; which proves, if there were no other proof, by the division of the functions and authorities, that the supreme power of the state in the Mogul empire did by no means delegate to any of its officers the supreme power in its fulness. Whether or no we have delegated to Mr. Hastings the supreme power of King and Parliament, that he should act with the plenitude of authority of the British legislature, you are to judge.

Mr. Hastings has no refuge here. Let him run from law to law; let him fly from the common law and the sacred institutions of the country in which he was born; let him fly from acts of Parliament, from which his power originated; let him plead his ignorance of them, or fly in the face of them. Will he fly to the Mahomedan law? That condemns him. Will he fly to the high magistracy of Asia to defend taking of presents? Padishah and the Sultan would condemn him to a cruel death. Will he fly to the Sophis, to the laws of Persia, or to the practice of those monarchs? I cannot utter the pains, the tortures, that would be inflicted on him, if he were to govern there as he has done in a British province. Let him fly where he will, from law to law; law, I thank God, meets him everywhere, and enforced, too, by the practice of the most impious tyrants, which he quotes as if it would justify his conduct. I would as willingly have him tried by the law of the Koran, or the Institutes of Tamerlane, as on the common law or statute law of this kingdom.

The next question is, whether the Gentoo laws justify arbitrary power: and if he finds any sanctuary there, let him take it, with the cow in the pagoda. The Gentoos have a law which positively proscribes in magistrates any idea of will,—a law with which, or rather with extracts of it, that gentleman himself has furnished us. These people in many points are governed by their own ancient written law, called the Shaster. Its interpreters and judges are the Pundits. This law is comprehensive, extending to all the concerns of life, affording principles and maxims and legal theories applicable to all cases, drawn from the sources of natural equity, modified by their institutions, full of refinement and subtilty of distinction equal to that of any other law, and has the grand test of all law, that, wherever it has prevailed, the country has been populous, flourishing, and happy.