by Edmund Burke
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 despotic 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 governors and persons intrusted with power. This would be a gross contradiction. Before Mr. Hastings, none ever came before his superiors 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 existed, except in the wild imagination of some theorist. It 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 moans 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 honor 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. I have taken as much pains as I could to examine into the constitutions of them. I have been endeavoring 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 governors 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 oppressors 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 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 d
oes, 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.