Complete Works of Edmund Burke

by Edmund Burke

  We have taken these pains to ascertain and fix principles, because your Lordships are not called upon to judge of facts. A jury may find facts, but no jury can form a judgment of law; it is an application of the law to the fact that makes the act criminal or laudable. You must find a fixed standard of some kind or other; for if there is no standard but the immediate momentary purpose of the day, guided and governed by the man who uses it, fixed not only for the disposition of all the wealth and strength of the state, but for the life, fortune, and property of every individual, your Lordships are left without a principle to direct your judgment. This high court, this supreme court of appeal from all the courts of the kingdom, this highest court of criminal jurisdiction, exercised upon the requisition of the House of Commons, if left without a rule, would be as lawless as the wild savage, and as unprincipled as the prisoner that stands at your bar. Our whole issue is upon principles, and what I shall say to you will be in perpetual reference to them; because it is better to have no principles at all than to have false principles of government and of morality. Leave a man to his passions, and you leave a wild beast to a savage and capricious nature. A wild beast, indeed, when its stomach is full, will caress you, and may lick your hands; in like manner, when a tyrant is pleased or his passion satiated, you may have a happy and serene day under an arbitrary government. But when the principle founded on solid reason, which ought to restrain passion, is perverted from its proper end, the false principle will be substituted for it, and then man becomes ten times worse than a wild beast. The evil principle, grown solid and perennial, goads him on and takes entire possession of his mind; and then perhaps the best refuge that you can have from that diabolical principle is in the natural wild passions and unbridled appetites of mankind. This is a dreadful state of things; and therefore we have thought it necessary to say a great deal upon his principles.

  My Lords, we come next to apply these principles to facts which cannot otherwise be judged, as we have contended and do now contend. I will not go over facts which have been opened to you by my fellow Managers: if I did so, I should appear to have a distrust, which I am sure no other man has, of the greatest abilities displayed in the greatest of all causes. I should be guilty of a presumption which I hope I shall not dream of, but leave to those who exercise arbitrary power, in supposing that I could go over the ground which my fellow Managers have once trodden, and make anything more clear and forcible than they have done. In my humble opinion, human ability cannot go farther than they have gone; and if I ever allude to anything which they have already touched, it will be to show it in another light, — to mark more particularly its departure from the principles upon which we contend you ought to judge, or to supply those parts which through bodily infirmity, and I am sure nothing else, one of my excellent fellow Managers has left untouched. I am here alluding to the case of Cheyt Sing.

  My honorable fellow Manager, Mr. Grey, has stated to you all the circumstances requisite to prove two things: first, that the demands made by Mr. Hastings upon Cheyt Sing were contrary to fundamental treaties between the Company and that Rajah; and next, that they were the result and effect of private malice and corruption. This having been stated and proved to you, I shall take up the subject where it was left.

  My Lords, in the first place, I have to remark to you, that the whole of the charge originally brought by Mr. Hastings against Cheyt Sing, in justification of his wicked and tyrannical proceedings, is, that he had been dilatory, evasive, shuffling, and unwilling to pay that which, however unwilling, evasive, and shuffling, he did pay; and that, with regard to the business of furnishing cavalry, the Rajah has asserted, and his assertion has not been denied, that, when he was desired by the Council to furnish these troopers, the purpose for which this application was made was not mentioned or alluded to, nor was there any place of muster pointed out. We therefore contended, that the demand was not made for the service of the state, but for the oppression of the individual that suffered by it.

  But admitting the Rajah to have been guilty of delay and unwillingness, what is the nature of the offence? If you strip it of the epithets by which it has been disguised, it merely amounts to an unwillingness in the Rajah to pay more than the sums stipulated by the mutual agreement existing between him and the Company. This is the whole of it, the whole front and head of the offence; and for this offence, such as it is, and admitting that he could be legally fined for it, he was subjected to the secret punishment of giving a bribe to Mr. Hastings, by which he was to buy off the fine, and which was consequently a commutation for it.

  That your Lordships may be enabled to judge more fully of the nature of this offence, let us see in what relation Cheyt Sing stood with the Company. He was, my Lords, a person clothed with every one of the attributes of sovereignty, under a direct stipulation that the Company should not interfere in his internal government. The military and civil authority, the power of life and death, the whole revenue, and the whole administration of the law, rested in him. Such was the sovereignty he possessed within Benares: but he was a subordinate sovereign dependent upon a superior, according to the tenor of his compact, expressed or implied. Now, having contended, as we still contend, that the Law of Nations is the law of India as well as of Europe, because it is the law of reason and the law of Nature, drawn from the pure sources of morality, of public good, and of natural equity, and recognized and digested into order by the labor of learned men, I will refer your Lordships to Vattel, Book I. Ca, where he treats of the breach of such agreements, by the protector refusing to give protection, or the protected refusing to perform his part of the engagement. My design in referring you to this author is to prove that Cheyt Sing, so far from being blamable in raising objections to the unauthorized demand made upon him by Mr. Hastings, was absolutely bound to do so; nor could he have done otherwise, without hazarding the whole benefit of the agreement upon which his subjection and protection were founded. The law is the same with respect to both contracting parties: if the protected or protector does not fulfil with fidelity each his separate stipulation, the protected may resist the unauthorized demand of the protector, or the protector is discharged from his engagement; he may refuse protection, and declare the treaty broken.

  We contend in favor of Cheyt Sing, in support of the principles of natural equity, and of the Law of Nations, which is the birthright of us all, — we contend, I say, that Cheyt Sing would have established, in the opinions of the best writers on the Law of Nations, a precedent against himself for any future violation of the engagement, if he submitted to any new demand, without what our laws call a continual claim or perpetual remonstrance against the imposition. Instead, therefore, of doing that which was criminal, he did that which his safety and his duty bound him to do; and for doing this he was considered by Mr. Hastings as being guilty of a great crime. In a paper which was published by the prisoner in justification of this act, he considers the Rajah to have been guilty of rebellious intentions; and he represents these acts of contumacy, as he calls them, not as proofs of contumacy merely, but as proofs of a settled design to rebel, and to throw off the authority of that nation by which he was protected. This belief he declares on oath to be the ground of his conduct towards Cheyt Sing.

  Now, my Lords, we do contend, that, if any subject, under any name, or of any description, be not engaged in public, open rebellion, but continues to acknowledge the authority of his sovereign, and, if tributary, to pay tribute conformably to agreement, such a subject, in case of being suspected of having formed traitorous designs, ought to be treated in a manner totally different from that which was adopted by Mr. Hastings. If the Rajah of Benares had formed a secret conspiracy, Mr. Hastings had a state duty and a judicial duty to perform. He was bound, as Governor, knowing of such a conspiracy, to provide for the public safety; and as a judge, he was bound to convene a criminal court, and to lay before it a detailed accusation of the offence. He was bound to proceed publicly and legally against the accused, and to convict him of h
is crime, previous to his inflicting, or forming any intention of inflicting, punishment. I say, my Lords, that Mr. Hastings, as a magistrate, was bound to proceed against the Rajah either by English law, by Mahometan law, or by the Gentoo law; and that, by all or any of these laws, he was bound to make the accused acquainted with the crime alleged, to hear his answer to the charge, and to produce evidence against him, in an open, clear, and judicial manner. And here, my Lords, we have again to remark, that the Mahometan law is a great discriminator of persons, and that it prescribes the mode of proceeding against those who are accused of any delinquency requiring punishment, with a reference to the distinction and rank which the accused held in society. The proceedings are exceedingly sober, regular, and respectful, even to criminals charged with the highest crimes; and every magistrate is required to exercise his office in the prescribed manner. In the Hedaya, after declaring and discussing the propriety of the Kâzi’s sitting openly in the execution of his office, it is added, that there is no impropriety in the Kâzi sitting in his own house to pass judgment, but it is requisite that he give orders for a free access to the people. It then proceeds thus:— “It is requisite that such people sit along with the Kâzi as were used to sit with him, prior to his appointment to the office; because, if he were to sit alone in his house, he would thereby give rise to suspicion.”

  My Lords, having thus seen what the duty of a judge is in such a case, let us examine whether Mr. Hastings observed any part of the prescribed rules. First, with regard to the publicity of the matter. Did he ever give any notice to the Supreme Council of the charges which he says he had received against Cheyt Sing? Did he accuse the Rajah in the Council, even when it was reduced to himself and his poor, worn, down, cowed, and I am afraid bribed colleague, Mr. Wheler? Did he even then, I ask, produce any one charge against this man? He sat in Council as a judge, — as an English judge, — as a Mahometan judge, — as a judge by the Gentoo law, and by the Law of Nature. He should have summoned the party to appear in person, or by his attorney, before him, and should have there informed him of the charge against him. But, my Lords, he did not act thus. He kept the accusation secret in his own bosom. And why? Because he did not believe it to be true. This may at least be inferred from his having never informed the Council of the matter. He never informed the Rajah of Benares of the suspicions entertained against him, during the discussions which took place respecting the multiplied demands that were made upon him. He never told this victim, as he has had the audacity to tell us and all this kingdom in the paper that is before your Lordships, that he looked upon these refusals to comply with his demands to be overt acts of rebellion; nor did he ever call upon him to answer or to justify himself with regard to that imputed conspiracy or rebellion. Did he tell Sadanund, the Rajah’s agent, when that agent was giving him a bribe or a present in secret, and was thus endeavoring to deprecate his wrath, that he accepted that bribe because his master was in rebellion? Never, my Lords; nor did he, when he first reached Benares, and had the Rajah in his power, suggest one word concerning this rebellion. Did he, when he met Mr. Markham at Boglipore, where they consulted about the destruction of this unhappy man, did he tell Mr. Markham, or did Mr. Markham insinuate to him, any one thing about this conspiracy and rebellion? No, not a word there, or in his whole progress up the country. While at Boglipore, he wrote a letter to Lord Macartney upon the state of the empire, giving him much and various advice. Did he insinuate in that letter that he was going up to Benares to suppress a rebellion of the Rajah Cheyt Sing or to punish him? No, not a word. Did he, my Lords, at the eve of his departure from Calcutta, when he communicated his intention of taking 500,000l., which he calls a fine or penalty, from the Rajah, did he inform Mr. Wheler of it? No, not a word of his rebellion, nor anything like it. Did he inform his secret confidants, Mr. Anderson and Major Palmer, upon that subject? Not a word, there was not a word dropped from him of any such rebellion, or of any intention in the Rajah Cheyt Sing to rebel. Did he, when he had vakeels in every part of the Mahratta empire and in the country of Sujah Dowlah, when he had in most of those courts English ambassadors and native spies, did he either from ambassadors or spies receive anything like authentic intelligence upon this subject? While he was at Benares, he had in his hands Benaram Pundit, the vakeel of the Rajah of Berar, his own confidential friend, a person whom he took out of the service of his master, and to whom he gave a jaghire in this very zemindary of Benares. This man, so attached to Mr. Hastings, so knowing in all the transactions of India, neither accused Cheyt Sing of rebellious intentions, or furnished Mr. Hastings with one single proof that any conspiracy with any foreign power existed.

  In this absence of evidence, My Lords, let us have recourse to probability. Is it to be believed that the Zemindar of Benares, a person whom Mr. Hastings describes as being of a timid, weak, irresolute, and feeble nature, should venture to make war alone with the whole power of the Company in India, aided by all the powers which Great Britain could bring to the protection of its Indian empire? Could that poor man, in his comparatively small district, possibly have formed such an intention, without giving Mr. Hastings access to the knowledge of the fact from one or other of the numerous correspondents which he had in that country?

  As to the Rajah’s supposed intrigues with the Nabob of Oude: this man was an actual prisoner of Mr. Hastings, and nothing else, — a mere vassal, as he says himself, in effect and substance, though not in name. Can any one believe or think that Mr. Hastings would not have received from the English Resident, or from some one of that tribe of English gentlemen and English military collectors who were placed in that country in the exercise of the most arbitrary powers, some intelligence which he could trust, if any rebellious designs had really existed previous to the rebellion which did actually break out upon his arresting Cheyt Sing?

  There was an ancient Roman lawyer, of great fame in the history of Roman jurisprudence, whom they called Cui Bono, from his having first introduced into juridical proceedings the argument, What end or object could the party have had in the art with which he is accused? Surely it may be here asked, Why should Cheyt Sing wish to rebel, who held on easy and moderate terms (for such I admit they were) a very considerable territory, with every attribute of royalty attached? The tribute was paid for protection, which he had a right to claim, and which he actually received. What reason under heaven could he have to go and seek another master, to place himself under the protection of Sujah Dowlah, in whose hands Mr. Hastings tells you, in so many direct and plain words, that neither the Rajah’s property, his honor, or his life could be safe? Was he to seek refuge with the Mahrattas, who, though Gentoos like himself, had reduced every nation which they subdued, except those who were originally of their own empire, to a severe servitude? Can any one believe that he wished either for the one or the other of these charges [changes?], or that he was desirous to quit the happy independent situation in which he stood under the protection of the British empire, from any loose, wild, improbable notion of mending his condition? My Lords, it is impossible. There is not one particle of evidence, not one word of this charge on record, prior to the publication of Mr. Hastings’s Narrative; and all the presumptive evidence in the world would scarcely be sufficient to prove the fact, because it is almost impossible that it should be true.

  But, my Lords, although Mr. Hastings swore to the truth of this charge, when he came before the House of Commons, yet in his Narrative he thus fairly and candidly avowed that he entertained no such opinion at the time. “Every step,” says he, “which I had taken before that fatal moment, namely, the flight of Cheyt Sing, is an incontrovertible proof that I had formed no design of seizing upon the Rajah’s treasures or of deposing him. And certainly, at the time when I did form the design of making the punishment that his former ill conduct deserved subservient to the exigencies of the state by a large fine, I did not believe him guilty of that premeditated project for driving the English out of India with which I afterwards charged him.” Thus, t
hen, he declares upon oath that the Rajah’s contumacy was the ground of his suspecting him of rebellion, and yet, when he comes to make his defence before the House of Commons, he simply and candidly declares, that, long after these alleged acts of contumacy had taken place, he did not believe him to be guilty of any such thing as rebellion, and that the fine imposed upon him was for another reason and another purpose.