mon law of England; and I verily believe more voluminous than the writings of the Civilians themselves. That this should be done by a people who have no property, is so perfectly ridiculous as scarcely to require refutation; but I shall endeavour to refute it, and without troubling you a great deal.

First then I am to tell you, that the Mahometans are a people amongst whom the science of jurisprudence is much studied and cultivated, that they distinguish it into the law of the Khoran and its authorized commentaries; into the Fetfa, which is the judicial judgments and reports of adjudged cases; into the Canon, which is the regulations made by the emperour, for the sovereign authority in the government of their dominions; and lastly into the Rage ul Mulk, or custom and usage, the common law of the country, which prevails independent of any of the former.

In regard to punishments being arbitrary, I will with your Lordships permission read a passage, which will shew you that the magistrate is a responsible person. "If a supreme ruler, "such as the caliph for the time being, com"mit any offence punishable by law, such as

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whoredom, theft, or drunkenness, he is not "subject to any punishment, (but yet if he com"mit murder he is subject to the law of retaliation,

"liation, and he is also accountable in matters "of property,) because punishment is a right of "God, the infliction of which is committed to "the caliph (or other supreme magistrate) and "to none else; and he cannot inflict punish"ment upon himself, as in this there is no advantage, because the good proposed in

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punishment is that it may operate as a warning "to deter mankind from sin, and this is not "obtained by a person's inflicting punishment "upon himself contrary to the rights of the "individual, such as the laws of retaliation and "of property, the penalties of which may be "exacted of the caliph, as the claimant of right may obtain satisfaction, either by the caliph empowering him to exact his right from him"self, or by the claimant appealing for assist"ance to the collective body of Mussulmans*.'

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"

Here your Lordships see that the caliph, who is a magistrate of the highest authority which can exist among the Mahometans, where property or life is concerned, has no arbitrary power, but is responsible, just as much as any other man.

I am now to inform your Lordships, that the sovereign can raise no taxes. The imposing of a tribute upon a Mussulman without his previous

* Hedaia, 2 vol. 34.

previous consent, is impracticable and so far from all property belonging to the sovereign, the public treasure does not belong to him. It is declared to be the common property of all Mahometans. This doctrine is laid down in many places, but particularly in the 95th page of the second volume of Hamilton's Hedaia.

Mr. Hastings has told you what a sovereign is, and what sovereignty is all over India, and I wish your Lordships to pay particular attention to this part of his defence, and to compare Mr. Hastings's idea of sovereignty with the declaration of the Mahometan law. The 10th chapter of these laws treats of Rebellion, which is defined an act of warfare against the sovereign. You are there told who the sovereign is and how many kinds of rebels there are. The author then proceeds to say; "The word baghee, (rebellion) in its literal sense, means prevari❝cation, also injustice and tyranny; in the language of the law it is particularly applied to

injustice, namely, withdrawing from obedience "to the rightful Imám, (as appears in the Fattahal-Kadeen). By the rightful Imám, is un

"

derstood a person in whom all the qualities "essential to magistracy are united, such as "islamism, freedom, sanity of intellect, and

maturity of age,-and who has been elected "into his office by any tribe of Mussulmans, VOL. XV. G

" with

"with their general consent :-whose view and "intention is the advancement of the true re

ligion, and the strengthening of the Mussul

mans, and under whom the Mussulmans enjoys "security in person and property; one who "levies tithe and tribute according to law; who "out of the publick treasury pays what is due "to learned men, preachers, Kâzees, Mooftis,

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philosophers, publick teachers, and so forth; "and who is just in all his dealings with Mus"sulmans for whoever does not answer this description is not the right Imám, whence it "is not incumbent to support such a one; but "rather it is incumbent to oppose him and make "war upon him, until such time as he either adopt a proper mode of conduct, or be "slain*."

My Lords, is this a magistrate of the same description as the sovereign delineated by Mr. Hastings? This man must be elected by the general consent of Mussulmans, he must be a protector of the person and property of his subjects, a right of resistance is directly established by law against him, and even the duty of resistance is insisted upon. Am I, in praising this Mahometan law, applauding the principle of elective sovereignty? No, my Lords, I know

the

*

Hedaia, 2 vol, pp. 247 and 248.

the mischiefs which have attended it: I know, that it has shaken the thrones of most of the sovereigns of the Mussulman religion; but I produce the law as the clearest proof that such a sovereign cannot be supposed to have an arbitrary power over the property and persons of those who elect him, and who have an acknowledged right to resist and dethrone him, if he does not afford them protection.

I have now gone through what I undertook to prove, that Mr. Hastings, with all his Indian council, who have made up this volume of arbitrary power, are not supported by the laws of the Moguls, by the laws of the Gentoos, by the Mahometan laws, or by any law, custom, or usage, which has ever been recognised as legal and valid.

But, my Lords, the prisoner defends himself by example, and, good God! what are the examples which he has chosen ? Not the local usages and constitutions of Oude or of any other province; not the general practice of a respectable Emperour like Akbar, which, if it would not fatigue your Lordships, I could shew to be the very reverse of this man's. No, my Lords, the Prisoner, his learned counsel here, and his unlearned cabinet council, who wrote this defence, have ransacked the tales of travellers for examples, and have selected materials from that