My Lords, I have here attempted to point out the extreme inconsistencies and defects of this proceeding; and I wish your Lordships to consider, with respect to these proceedings of the India House in their prosecutions, that it is in the power of some of their officers to make statements in the manner that I have described, then to obtain the names of great lawyers, and under their sanction to carry the accused through the world as acquitted.
These are the material circumstances which will be submitted to your Lordships' sober consideration in the course of this inquiry. I have now stated them on these two accounts: first, to rebut the reason which Mr. Hastings has assigned for not giving any satisfaction to the Court of Directors, namely, because they did not want it, having dropped a prosecution upon great authorities and opinions; and next, to show your Lordships how a business begun in bribery is to be supported only by fraud, deceit, and collusion, and how the receiving of bribes by a Governor-General of Bengal tends to taint the whole service from beginning to end, both at home and abroad.
But though upon the partial case that was presented to them these great lawyers did not advise a prosecution, and though even upon a full representation of a case a lawyer might think that a man ought not to be prosecuted, yet he may consider him to be the vilest man upon earth. We know men are acquitted in the great tribunals in which several Lords of this country have presided, and who perhaps ought not to have been brought there and prosecuted before them, and yet about whose delinquency there could be no doubt. But though we have here sufficient reason to justify the great lawyers whose names and authorities are produced, yet Mr. Hastings has extended that authority beyond the length of their opinions. For, being no longer under the terror of the law, which, he said, restrained him from making his defence, he was then bound to give that satisfaction to his masters and the world which every man in honor is bound to do, when a grave accusation is brought against him. But this business of the law I wish to sleep from this moment, till the time when it shall come before you; though I suspect, and have had reason (sitting in committees in the House of Commons) to believe, that there was in the India House a bond of iniquity, somewhere or other, which was able to impose in the first instance upon the solicitor, the guilt of which, being of another nature, I shall state hereafter, that your Lordships may be able to discover through whose means and whose fraud Mr. Hastings obtained these opinions.
If, however, all the great lawyers had been unanimous upon that occasion, still it would have been necessary for Mr. Hastings to say, "I cannot, according to my opinion, be brought to give an account in a court of justice, and I have got great lawyers to declare, that, upon the case laid before them, they cannot advise a prosecution; but now is the time for me to come forward, and, being no longer in fear that my defence may be turned against me, I will produce my defence for the satisfaction of my masters and the vindication of my own character." But besides this doubtful opinion (for I believe your Lordships will find it no better than a doubtful opinion) given by persons for whom I have the highest honor, and given with a strong censure upon the state of the case, there were also some great lawyers, men of great authority in the kingdom, who gave a full and decided opinion that a prosecution ought to be instituted against him; but the Court of Directors decided otherwise, they overruled those opinions, and acted upon the opinions in favor of Mr. Hastings. When, therefore, he knew that the great men in the law were divided upon the propriety of a prosecution, but that the Directors had decided in his favor, he was the more strongly bound to enter into a justification of his conduct.
But there was another great reason which should have induced him to do this. One great lawyer, known to many of your Lordships, Mr. Sayer, a very honest, intelligent man, who had long served the Company and well knew their affairs, had given an opinion concerning Mr. Hastings's conduct in stopping these prosecutions. There was an abstract question put to Mr. Sayer, and other great lawyers, separated from many of the circumstances of this business, concerning a point which incidentally arose; and this was, whether Mr. Hastings, as Governor-General, had a power so to dissolve the Council, that, if he declared it dissolved, they could not sit and do any legal and regular act. It was a great question with the lawyers at the time, and there was a difference of opinion on it. Mr. Sayer was one of those who were inclined to be of opinion that the Governor-General had a power of dissolving the Council, and that the Council could not legally sit after such dissolution. But what was his remark upon Mr. Hastings's conduct?—and you must suppose his remark of more weight, because, upon the abstract question, he had given his opinion in favor of Mr. Hastings's judgment. "The meeting of the Council depends on the pleasure of the Governor; and I think the duration of it must do so, too. But it was as great a crime to dissolve the Council upon base and sinister motives as it would be to assume the power of dissolving, if he had it not. I believe he is the first Governor that ever dissolved a Council inquiring into his behavior, when he was innocent. Before he could summon three Councils and dissolve them, he had time fully to consider what would be the result of such conduct, to convince everybody, beyond a doubt, of his conscious guilt."
Mr. Sayer, then, among other learned people, (and if he had not been the man that I have described, yet, from his intimate connection with the Company, his opinion must be supposed to have great weight,) having used expressions as strong as the persons who have ever criminated Mr. Hastings most for the worst of his crimes have ever used to qualify and describe them, and having ascribed his conduct to base and sinister motives, he was bound upon that occasion to justify that strong conduct, allowed to be legal, and charged at the same time to be violent. Mr. Hastings was obliged then to produce something in his justification. He never did. Therefore, for all the reasons assigned by himself, drawn from the circumstances of prosecution and non-prosecution, and from opinions of lawyers and colleagues, the Court of Directors at the same time censuring his conduct, and strongly applauding the conduct of those who were adverse to him, Mr. Hastings was, I say, from those accumulated circumstances, bound to get rid of the infamy of a conduct which could be attributed to nothing but base and sinister motives, and which could have no effect but to convince men of his consciousness that he was guilty. From all these circumstances I infer that no man could have endured this load of infamy, and to this time have given no explanation of his conduct, unless for the reason which this learned counsel gives, and which your Lordships and the world will give, namely, his conscious guilt.
After leaving upon your minds that presumption, not to operate without proof, but to operate along with the proof, (though, I take it, there are some presumptions that go the full length of proof,) I shall not press it to the length to which I think it would go, but use it only as auxiliary, assisting, and compurgatory of all the other evidences that go along with it.
There is another circumstance which must come before your Lordships in this business. If you find that Mr. Hastings has received the two lac of rupees, then you will find that he was guilty, without color or pretext of any kind whatever, of acting in violation of his covenant, of acting in violation of the laws, and all the rules of honor and conscience. If you find that he has taken the lac and a half, which he admits, but which he justifies under the pretence of an entertainment, I shall beg to say something to your Lordships concerning that justification.
The justification set up is, that he went up from Calcutta to Moorshedabad, and paid a visit of three months, and that there an allowance was made to him of two hundred pounds a day in lieu of an entertainment. Now, my Lords, I leave it to you to determine, if there was such a custom, whether or no his covenant justifies his conformity with it. I remember Lord Coke, talking of the Brehon law in Ireland, says it is no law, but a lewd custom. A governor is to conform himself to the laws of his own country, to the stipulations of those that employ him, and not to the lewd customs of any other country: those customs are more honored in the breach than in the observance. If Mr. Hastings was really feasted and entertained with the magnificence of the country, if there was an entertainment of dancing-girls brought out to amuse him in his leisure hours, if he was feasted with the hookah and every other luxury, there is something to be said for him, though I should not justify a Governor-General wasting his days in that manner. But in fact here was no entertainment that could amount to such a sum; and he has nowhere proved the existence of such a custom.
But if such a custom did exist, which I contend is more honored in the breach than in the observance, that custom is capable of being abused to the grossest extortion; and that it was so abused will strike your Lordships' minds in such a manner that I hardly need detail the circumstances of it. What! two hundred pounds to be given to a man for one day's entertainment? If there is an end of it there, it ruins nobody, and cannot be supposed, to a great degree, to corrupt anybody; but when that entertainment is renewed day after day for three months, it is no longer a compliment to the man, but a great pecuniary advantage, and, on the other hand, to the person giving it, a grievous, an intolerable burden. It then becomes a matter of the most serious and dreadful extortion, tending to hinder the people who give it not only from giving entertainment, but from having bread to eat themselves. Therefore, if any such entertainment was customary, the custom was perverted by the abuse of its being continued for three months together. It was longer than Ahasuerus's feast. There is a feast of reason and a flow of soul; but Mr. Hastings's feast was a feast of avarice and a flow of money. No wonder he was unwilling to rise from such a table: he continued to sit at that table for three months.