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 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 man
kind 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