1. Summary of the Impeachment

Originally an association of merchants, the East India Company had evolved into a “company-state” exercising political rule in its own right.Footnote ¹² In 1783, amid news from India of military losses, revolts against the company's authority, and abusive revenue collection,Footnote ¹³ Burke drafted and spoke in support of Charles James Fox's East India Bill, which would have brought the company under stricter parliamentary regulation. The bill passed the House of Commons but, under the influence of King George III, was defeated in the House of Lords, triggering the fall of the Fox-North governing coalition and the elevation of William Pitt the Younger.

With this legislative failure, Burke turned to the procedure of impeachment as the best remaining hope for forcing reform. Hastings, in Burke's view, was the “captain-general in iniquity” in India, and his punishment was intended to be exemplary.Footnote ¹⁴ A longtime company official, Hastings had served as governor-general from 1773 until his resignation in 1784.Footnote ¹⁵ Acting with a group of opposition Whigs, Burke presented twenty-two articles of charge against Hastings to the Commons in April and May 1786. Hastings's statement of self-defense on May 1 and 2 was poorly received.Footnote ¹⁶ On June 13, Pitt's surprising announcement of support for the impeachment sealed Hastings's fate in the Commons.

At Hastings's trial before the Lords, Burke and his fellow managers largely confined their case to four main charges. Two were related to financial corruption: Hastings's acceptance of “presents” from Indians and the awarding of “improvident and corrupt contracts,” mainly for tax farming.Footnote ¹⁷ Two others were instances of his “Acts of Oppression”:Footnote ¹⁸ the violation of treaty obligations to the Raja Chait Singh of Benares, which provoked a revolt in 1781, and the confiscation of the property of the Begams of Oudh, major landholders neighboring the company's base in Bengal.Footnote ¹⁹ Even as early as 1785, Burke privately referred to Hastings's conviction as “a thing we all know to be impracticable.”Footnote ²⁰ Despite an enthusiastic public reception for his opening speech over four days in February 1788, Burke's pessimism was soon borne out.

While free to adopt any set of procedures, the Lords—under the influence of the judges who sat as members of the House—chose to closely model the impeachment on a criminal trial under the common law, hampering the managers’ efforts to prove their case. Even with the outcome in little doubt, the trial dragged on for more than seven years. While both sides arguably bore a share of responsibility for the trial's protraction, much of the blame should fall on the tribunal's short and infrequent sittings—a total of just 145, at an average of three to four hours each. Had they sat continually and for full days, the Lords might have concluded the trial in roughly two months.Footnote ²¹

By the time the court assembled for a verdict on April 23, 1795, public interest had waned considerably. Hastings was overwhelmingly acquitted. While Burke had anticipated that outcome, he had undertaken the impeachment in order to shape public opinion and to constrain the actions of future imperial administrators, and on this score he was largely disappointed—especially when Hastings was subsequently awarded an annuity for his service.Footnote ²²

In the following two sections, I turn to the trial's central paradox, tracing the shifting claims of legalism and antilegalism across its two scenes.

2. The British Scene

From the outset, Burke and Hastings were engaged in a running debate over the nature of impeachment that is likely to strike us as quite familiar. Among the disputed issues were impeachment's purpose within the system of representative government, the most appropriate procedural model for an impeachment trial, the varieties of evidence and argument that ought to be admissible, and the standard of guilt that must be met to secure a conviction.

Then, as now, impeachment was a liminal procedure, sitting uncertainly on the margins of the judicial and the deliberative. It took the outward form of a trial for “high crimes and misdemeanors.” And yet, in Burke's view, the essential purpose of the impeachment process, which had lain dormant since its last use in 1746, was not to punish crimes, but to exert parliamentary control over ministers and other crown appointees—an especially pressing function at a time when ministerial responsibility to parliament was only haphazardly enforced. In order to play its constitutional role, impeachment demanded standards of probabilistic reasoning, evidence, and proof more suited to the legislator than the jurist. The Lords ought to assess “misconduct in Office” under the broadest possible rubric, by comparison with an ideal figure of virtue in office: “If [the accused] has done and if he has forborne in the manner in which a British Governor ought to do and to forbear, he has done his duty, and he is honorably acquitted.”Footnote ²³ The supremacy of the “law of Parliament,” as Burke freely admitted to the judges, empowered them to set aside the letter of the common law and act in a quasi-arbitrary manner: “You are not bound by any rules whatever except those of natural, immutable and substantial justice.”Footnote ²⁴ In sum, Burke told the court, we have “the principles of honor, the spirit of cavaliers to govern here; not the low principles of jurisprudence only.”Footnote ²⁵

Hastings and his attorneys, by contrast, approached the impeachment as a criminal proceeding. As early as his May 1786 appearance before the Commons, Hastings was already criticizing his accusers for departing from “the universal practice of every system of jurisprudence.”Footnote ²⁶ The defense's reasoning can best be reconstructed through the arguments of sympathetic members of Parliament. “If we talk of the law and usage of parliament, and are bound by it,” asked Edward Thurlow, the lord chancellor, “what injustice shall we not commit?”Footnote ²⁷ Departing from the common-law model, argued Thomas Erskine, would replace impartial standards with arbitrary judgments and electoral head-counting, “according to the strength of the party prosecuting or defending.”Footnote ²⁸ These parliamentarians had been trained as lawyers; in their view, impeachment was dangerous precisely because it offered a means of overriding the rule of law.

This clash between the deliberative and judicial conceptions of impeachment, and the dueling styles of argumentation that they entailed, had decisive consequences for the trial. These consequences were clearly evident to contemporaries. One satirical print, made by the caricaturist James Sayers in March 1788, on the heels of Burke's opening statement, depicts a ticket to the trial bearing a fictional coat of arms: the emblem includes Burke's head and a weeping judge, labeled “Common Law,” crouching beneath a whip, labeled “Lex Parliamenti omnipotens.”Footnote ²⁹ King George himself (a supporter of Hastings) observed that “the managers do not seem to understand their business. There is a great difference between those who are Counsel [professional lawyers] and those who are not, in examining witnesses.”Footnote ³⁰ The fact that the difference was so clear speaks to the success of the defense in setting the terms of the trial; the Lords settled procedural and evidentiary disputes almost uniformly in Hastings's favor. Across three major sets of procedural issues, Burke and his fellow managers pressed and lost the case for a political trial. After summarizing these issues, I will argue that Burke cast these disputes as part of a more general argument about the superiority of deliberative over judicial reasoning.

First, the managers and the defense differed over the structure of the trial. Immediately following Burke's opening speech, Fox, his fellow manager, urged the tribunal to depart from the organization of an ordinary criminal trial, in which the entire prosecution case would be followed by the entire defense case. Such a structure, Fox argued, was unsuited to the “vastness” of the material at stake; in the interest of the judges’ factual recall, the parties ought to present their arguments on each charge in turn. Yet the managers were just as concerned with emotive recall: as P. J. Marshall has argued, “the prosecution's slender changes of obtaining a conviction on any of the articles would be at their best while the atmosphere of the court was still charged with the Managers’ oratory.”Footnote ³¹ Burke's private admission that the impeachment had to be “mobbish” to have any hope of success speaks both to political calculation and to the considered belief that deliberators must be “alarmed into reflection.”Footnote ³²

By contrast, the defense argued that “the mode proposed was contrary to the modes of procedure at common law.” Hastings's attorneys further claimed that requiring them to respond immediately to each charge might compel them “to disclose to their adversary the defense which they meant to employ upon others”—not a pressing consideration in the fluid atmosphere of legislative debate, but a highly relevant one in a criminal context designed to protect the rights of the accused.Footnote ³³ The Lords ruled in Hastings's favor. A dissenting opinion filed by a handful of Lords neatly captured the issue at stake: in binding itself to the common-law practices of the lower courts, the court had essentially ruled that “the law of Parliament . . . has neither form, authority, nor even existence.”Footnote ³⁴

Second, the defense successfully demanded a strict reading of the articles of impeachment in order to dramatically limit the trial's scope. The articles, as drafted by Burke, aimed squarely at public opinion and more closely resembled a political pamphlet than a legal document. As a result, Burke was unprepared for the defense's efforts to hold him to the letter of the charges.

In February 1790, the managers attempted to substantiate claims of Hastings's corruption by providing evidence that one of his appointed tax farmers was “notoriously a person of infamous character, and . . . unqualified for the office.”Footnote ³⁵ In their view, unfitness was circumstantial proof of corruption, because Hastings could only have made such an appointment if he had been bribed. Hastings's attorneys objected that “unfitness was not a charge in the impeachment,” and the Lords ruled in their favor. Questions to witnesses on the Indian public's perception of Hastings's appointments were also ruled out of order.Footnote ³⁶ In effect, the Lords sharply limited the extent to which the court could take into account the condition of India and its inhabitants—an essential consideration if impeachment were a deliberative proceeding, but one without direct bearing on Hastings's personal guilt.

Shortly thereafter, the defense objected when the managers asked a witness whether Hastings's changes to the revenue collection resulted in “more evil, or less evil” for Indians under the company's rule. Again, the defense argued that their well-being was only tangential to the charges. When the managers pointed out that the articles did in fact contain the phrase “to the great oppression and injury of the said people,” the defense responded that this must be read not as a substantive charge, but as a legal formula—the equivalent of the phrase “contrary to the peace of our Lord the King,” routinely appended to criminal charges.Footnote ³⁷ The Lords’ ruling in the defense's favor triggered an outburst from Burke, who had perhaps come to realize that questions of the welfare of the empire's subject peoples had been progressively ruled out of the trial. Admonished by the judges to stop wasting the court's time, Burke shot back “that it was his object to save the honor and the character of their Lordships, and not their time.”Footnote ³⁸

Arguments about the likely future condition of the company's subjects also repeatedly failed to persuade the tribunal. The managers argued, to little effect, that “to adhere to the rules of evidence upheld by English lawyers, was to let loose rapine and spoil upon the subjects of government.”Footnote ³⁹ Here again, the patterns of argumentation at the heart of deliberative reasoning—in this case, orientation toward prospective outcomes rather than past wrongs—failed to take hold.

Third, in a wide range of cases, the tribunal ruled inadmissible evidence and testimony offered by the managers. In February 1788 and April 1789, the Lords followed common-law procedure in protecting company officials from hostile or potentially self-incriminating questions.Footnote ⁴⁰ In May 1789, on similar grounds, the court shielded Hastings from questions related to the existence of a letter allegedly substantiating his acceptance of bribes.Footnote ⁴¹ In the same month, the court rejected written testimony offered, in Calcutta, against Hastings by one of his Indian subordinates; the grounds for this ruling included the facts that the testimony was not given on oath or in the presence of the accused.Footnote ⁴² Also excluded were documents purporting to show the acceptance of bribes by Hastings's subordinates on his behalf.Footnote ⁴³ One could imagine the court admitting all or most of this evidence if it accepted Burke's premise that the purpose of the impeachment was the reform by example of the imperial administration. But in rejecting that premise, the court was also bound to reject evidence that ran afoul of legal protections for the accused, no matter the cumulative picture of misgovernment that it painted.

Despite their consistent and consequential failure to carry their arguments for a political impeachment, the managers persisted in pressing the case. As late as 1794, Burke was still insisting that impeachment is “not of Right obliged to proceed . . . [by] the Law or Usage of any of the inferior Courts . . . but by the Law [or] Usage of Parliament.”Footnote ⁴⁴ His stubbornness on this point is telling. There are certainly cases—for instance, the drafting of the articles—in which Burke might have advanced his cause by moderating his stance. But on the whole, Burke acted as if the only hope of success as he defined it—decisively altering public opinion on the governance of the empire—depended on carrying through to the end an impeachment as frankly political as the circumstances would permit. To understand why, we need to understand Burke's conception of the relationship between deliberative and judicial reasoning.

For Burke, these two forms of reasoning or rhetoric were not morally interchangeable, each suited to its own domain. Rather, they were related hierarchically: while judicial reasoning was valuable in a limited sphere, deliberative reasoning was superior in important respects. This stance echoed Aristotle's claim that deliberative rhetoric is “nobler and more worthy of a statesman.”Footnote ⁴⁵ Nor were these two forms of reasoning necessarily bound to their contexts, one to legislatures and the other to courts. Just as certain courts, such as a court of impeachment, ought to proceed as deliberatively as possible, legislatures often labored under the temptation of lapsing into legalistic habits of thought. Deliberation was not, for Burke, what legislatures did by definition; it was a form of reasoning into which they could sometimes rise. And they could do so only by overcoming the mental and moral laziness that moved them to offload “the pain of judgment” onto preexisting rules, maxims, and procedures.Footnote ⁴⁶ So while it is correct to point out that the “contrast between the liberal mind and the narrow legalism of the profession is a familiar Burkean theme,” the contrast Burke implies is further-reaching: with legal modes of thinking whenever they venture beyond a narrowly fixed province.Footnote ⁴⁷

This polarity—judicial reasoning as a tempting base state, and deliberation as a condition tenuously achieved—runs as a through-line across Burke's oratory and political writing. As early as his speeches on the American colonies, he urged his colleagues to avoid “the distinctions of rights . . . these metaphysical distinctions,” and to enter into “the arguments of states and kingdoms.”Footnote ⁴⁸ He made a similar point even more explicitly in his speech on Fox's East India Bill, in which he insisted that questions on the legal status of the East India Company's charter should be subordinated to questions of its record of political rule. “It has been a little painful to me,” Burke declared, “to observe the intrusion into this important debate of such company as quo warranto, and mandamus, and certiorari: as if we were on a trial about mayors and aldermen and capital burgesses, or engaged in a suit concerning the borough of Penryn, or Saltash, or St. Ives, or St. Mawes . . . matter of the lowest and meanest litigation.” The encroachment of legalism would “degrade the majesty of this grave deliberation of policy and empire.”Footnote ⁴⁹

Judicial reasoning fell short of the “grave” and “majestic” standard of deliberation in a number of ways. First, Burke considered it intellectually constricting. What it gained in precision, it lost in a quality that Burke variously referred to as “enlargement” or “expansion.” This quality might be the ability to estimate the probabilities of future events (would the suppression of certain evidence increase the future likelihood of the bribery of company officials?) or to synthesize facts into broad judgments (did Hastings's tax policies leave his subjects better or worse off?)—modes of judgment that were ruled out of order in the impeachment. It might be the ability to imaginatively generalize from facts to underlying principles. Or it might be an apprehension of events in their proper moral proportions. “If . . . we do not stretch and expand our minds to the compass of their object,” Burke warned in a 1785 speech denouncing the company, “be well assured that everything about us will dwindle by degrees, until at length our concerns are shrunk to the dimensions of our minds.”Footnote ⁵⁰ Hastings and the company could only succeed in the impeachment and in the court of public opinion, Burke insisted, by shrinking the concerns at stake. To understand Burke's outbursts before the judges, one must grasp something of his frustration in seeing “the great oppression and injury of the [Indian] people” reduced from a political reality to a verbal formula.

Second, Burke contended that judicial reasoning divorced the passions from the work of judgment. As he told the court, “He that hath made us what we are, has made us at once resentful and reasonable.”Footnote ⁵¹ The trouble is that legal proceedings may make insufficient room for just resentment, especially in cases of complex and systemic wrongs, when the wrongs themselves are obscured by “technical Subtilties.” Similarly, the drier such proceedings are, the less space they leave for aesthetic reactions, such as disgust at injustice. Among the accusations that Burke leveled at Hastings, one was for the offense of attempting, through “palliating names” of vices, to lower the emotional temperature of the trial.Footnote ⁵² He mocked the defendant's legalese, reserving particular scorn for this “puzzled and studied” sentence from a 1785 letter to the company's directors: “Neither shall I attempt to add more than the clearer affirmation of the facts implied in the report of them, and such inferences as necessarily or with a strong probability follow them.”Footnote ⁵³ By contrast with Hastings, Burke argued that the “Plainness and Simplicity” of a deliberative impeachment made possible the exaction of “sympathetic revenge.”Footnote ⁵⁴

Third and finally, Burke claimed that the judicial framework was specifically unsuited to grappling with imperial wrongdoing. Most immediately, the sheer distance of India, combined with common-law procedures that evolved for English use, acted as a shield for crimes that would be more easily uncovered if they were committed at home. As Burke put it in his 1794 committee report, “Such confined and inapplicable rules would be convenient indeed to Oppression, to Extortion, Bribery, and Corruption.”Footnote ⁵⁵ Concretely, the dilemmas of distance manifested themselves in Burke's difficulties in obtaining admissible written records of the company's activities, and in his belief—evidently derived from Nathaniel Halhed's Code of Gentoo [Hindu] Law—that observant Hindus were unable to leave Indian soil, preventing them from testifying in a British court.Footnote ⁵⁶ More broadly, though, Burke suggested that applying the English common law to Indian oppression would quite literally domesticate imperial crimes. Returning to his speech on Fox's East India Bill, we can observe that direct engagement with Indian affairs is praised as a “grave deliberation of policy and empire,” while the “lowest and meanest litigation” is linked with local goings-on in “Penryn, or Saltash, or St. Ives, or St. Mawes.” These were all small boroughs in the far Southwest of England, the most provincial of the provincial, placed in contrast with the empire's cosmopolitan scope. Litigating, then, is the ordinary, comfortable, parochial mode of proceeding, well suited to ordinary, comfortable, parochial affairs, such as take place in St. Mawes. To transpose India into this framework, Burke fears, is to render imperial crimes similarly ordinary to Englishmen. The implication, I think, is that procedures can be “contagious”: routine procedures can routinize outrages.Footnote ⁵⁷ If Burke is correct that these crimes are systemic in scope, then they are, for that very reason, potentially invisible. To assimilate them to the most familiar proceedings and phrasings of English law is to be complicit in their invisibility.Footnote ⁵⁸

Burke's repeated insistence that the impeachment's judges discard “the low principles of jurisprudence” derived, then, from a considered and multifaceted argument for the hierarchical relationship between deliberative and judicial reasoning. While the impeachment would necessarily retain some aspects of the judicial, Burke pressed consistently to minimize them. Even though the Lords were unpersuaded, we might still grant that—given Burke's aspirations for the trial—accepting a wholly judicial impeachment would have meant conceding his case from the outset.

3. The Indian Scene

In addition to their dispute over the nature of impeachment, Burke and Hastings also contended over the appropriate role of foreign law and custom in a domestic proceeding—a clash in which Burke, in particular, engaged closely with Indian law. The thoroughness of Burke's objection to judicial reasoning makes this close engagement all the more puzzling. If we grant the argument that concluded the last section—that absorption in legalistic reasoning would hamper the intellectual enlargement and emotional engagement necessary for the Lords to do justice in a case on the scale of Hastings's—then Burke would seem to be damaging his own chances of success whenever he invoked the details of Indian law. Burke's line of argument also raised the specters of inconsistency and opportunism. He was open to the rebuttal that, while denouncing Hastings's lawless and arbitrary rule in India, he himself was demanding an arbitrary judgment from Parliament.

Burke and the managers were drawn into an engagement with Indian law by Hastings's line of defense: that, while the impeachment itself ought to be governed by strict legal standards, Hastings's actions in India were outside the scope of law. In this section, I consider Hastings's substantive case in defense of his Indian record, followed by Burke's response. This dispute, as I will argue, locked both parties into positions in tension with their respective claims about the procedure of impeachment. In the next section, I argue that Burke's turn to natural law mitigated the dangers that this tension posed to his case.

The claim that the states of Asia were characteristically despotic—subject to arbitrary rule, governed by force and fear rather than by law—was stamped with the authority of Montesquieu.Footnote ⁵⁹ While a growing body of comparative legal scholarship had begun to undermine this account, it still retained wide currency.Footnote ⁶⁰ What was more controversial was Hastings's variation on this theme: because India could only be governed despotically, the British in India had no choice but to govern despotically in their own right. As Hastings argued in his May 1786 defense before the House of Commons (in a passage written for him by Halhed), India's history of waves of foreign conquest had resulted in “unavoidable anarchy and confusion of different laws, religions, and prejudices.” Because such unnatural diversity offered a standing inducement to the rebellion of subject peoples, the Indian states could only be governed by “the strong Hand of Power”; rebellion itself was “the parent and promoter of despotism.” In fact, “the whole history of Asia is nothing but precedents to prove the invariable exercise of arbitrary power.” Hastings explicitly assimilated his high-handed treatment of the company's tributary ally, Chait Singh, to the arbitrary relations between lords and vassals under the Mughals. Hastings's conduct toward his ally was “perhaps arbitrary; but for that I am not responsible: It is a defect woven in the texture of the Mogul system.” Chait Singh's rebellion against the company (which Burke praised as an act of self-defense) was, for Hastings, simply evidence of that systemic defect. It also proved that he had been right to govern from fear of rebellion. Except for the briefly expressed hope that one day “the despotic institutes of Genghiz Khan, or Tamerlane, shall give place to the liberal spirit of a British legislature,” there is little sign in Hastings's defense of the alleged “civilizing mission” of later imperialism.Footnote ⁶¹

Hastings withdrew from this line of argument soon after his appearance before the Commons; it seems that his unapologetic picture of British despotism alienated a Parliament and a public that took pride, however dubious, in a “liberal spirit.” But Hastings's revised defense was structurally quite similar to his argument from despotism. In the revised line of defense, India was cast not as inherently lawless, but as contingently lawless; Hastings's exculpatory model was not a Mughal overlord, but an embattled official in wartime. His argument from necessity pointed to India's political and military turmoil amid the declining central authority of the Mughals; to the threat of French incursions into the eastern empire; and to the company's unstable financial position. In the face of these exigencies, Hastings argued, the imperial administration “must be armed for Defence, and it ought rather to advance against gathering Dangers on their own Ground than to await their Approach. . . . There are also Cases in which Power may be displayed to intimidate.”Footnote ⁶² The charges of oppression for which he was on trial were, for Hastings, just such cases. His abrogation of treaties had taken place in a theater of war, in which apology “is an Acknowledgement of Weakness,” and his acceptance of presents from Indian subjects had stabilized the company's accounts rather than padding his own. Above all, his results spoke for themselves: the provinces he oversaw had become “the most flourishing of all the states in India. It was I who made them so.”Footnote ⁶³

This sketch of Hastings's defense can give us a sense of why Indian law played a more prominent role in Burke's prosecution than the English common law. First, Burke argued, the powers that Hastings claimed were themselves partly derived from Indian law. The East India Company had acquired territorial rule through the 1765 Treaty of Allahabad, which legally made the company a vassal of the Mughals. As a result, Burke argued in opening the impeachment, “an English Corporation became an integral part of the Mogul Empire. When Great Britain assented to that grant virtually, and afterwards took advantage of it, Great Britain made a virtual act of union with that country.”Footnote ⁶⁴ Hastings, too, acknowledged the company's vassal status, using it to legitimize his continuation of “the Mogul system” of despotism. But Burke, by contrast, used the same fact to subvert Britain's imperial claims. Rather than imposing order on Indian “anarchy,” as Hastings claimed, Britain had entered into a relationship with the Mughal empire not essentially different from the Act of Union between England and Scotland. If this were the case, then Hastings, in his capacity as governor-general, was not a dispenser of laws to India, but a subject of Indian law. As a result of this fact, Britain had an interest in Hastings's adherence to Indian law—in the question whether he broke faith with Chait Singh or violated local laws of inheritance and property in the case of the Begams of Oudh. But most importantly, Burke was concerned with substantiating the sheer existence, diversity, and antiquity of “Asiatic” law, because such a claim, if persuasive, would undermine the core of Hastings's defense—that India was inherently despotic or permanently a theater of necessity.Footnote ⁶⁵

Burke set out to demonstrate, then, that law existed at every stratum of Indian history, from the earliest foreign invasions up to the present. Despots had certainly ruled in India, but in the sweep of history, they were aberrations. Burke's most striking illustration of this point was his claim that the ur-despots of the European imagination—Genghis Khan and Tamerlane, regretfully cited by Hastings as models—were in fact law-bound sovereigns. The surviving records of Genghis Khan, Burke admitted, were sparse, “but there is not a shadow of arbitrary power to be found in any one of them.”Footnote ⁶⁶ Tamerlane's legislation, on the other hand, appeared to be better attested. Gesturing to an English translation of the Institutes of Tamerlane, Burke told the court, “there is no book in the world, I believe, which contains nobler, more just, more manly, more pious, principles of Government than this book. . . . Nor is there one word of arbitrary power in it, much less of that arbitrary power which Mr. Hastings supposed himself justified by.”Footnote ⁶⁷ There follows a two-thousand-word quotation from the text, of which the following gives a flavor: “Twelfthly . . . it was known unto me by experience, that every empire which is not established in morality and religion, nor strengthened by regulations and laws, from that empire all order, grandeur and power, shall pass away. . . . Therefore I established the foundations of my empire on the morality and the religion of Islaum.”Footnote ⁶⁸

More recently, the Ottoman Sultan had come to play a similar role in European discourse, and in Hastings's defense, as the prototypical Muslim despot. Here again, Burke dissented: “He an arbitrary power? . . . He cannot lay a tax upon his people. . . . He cannot dispose of the life, or the property, or of the liberty of any of his subjects, but by what is called the Fetfa or sentence of the law. He cannot declare peace or war without the same sentence of the law.”Footnote ⁶⁹ The cases of Tamerlane and the Sultan were relevant to the impeachment because they offered proof that “every Mahomedan Government . . . is by its principles a Government of law.”Footnote ⁷⁰ The Mughal government was no exception, Burke insisted, “and I will prove it by the known provincial constitutions of Hindoostan.” Burke outlined the structure of these constitutions, descending from the Koran—“against oppressors by name every letter of that law is fulminated”—to the body of case law. He also demonstrated that the Indian states had “subdelegated their power by parcels,” explaining, as an instance of this subdelegation, the separate court jurisdictions for lawsuits related to taxation and to inheritance.Footnote ⁷¹ In Burke's telling, the framework of Muslim Indian law ought to be familiar to any common-law court in Britain, with laws “exactly in the same order, grounded upon the same authority.”Footnote ⁷² Finally, Burke drew on Halhed's compendium to claim that India's Hindu law was no exception to the general trend: “These people are governed, not by the arbitrary power of any one, but by . . . a substantial body of equity and great principles of jurisprudence.”Footnote ⁷³

As Mithi Mukherjee observes, the turn to Indian jurisprudence in a British impeachment posed a number of uncomfortable questions: for instance, “Could a subject of England be tried in the name of the laws of an alien land?”Footnote ⁷⁴ At the risk of reading too much into too little, a single word can bring us to the heart of the trial's perplexities. In the British context, Burke speaks of the “low principles of jurisprudence”; in the Indian context, he speaks of the “great principles of jurisprudence.” This is a telling shift in emphasis. The very same principles that Burke seeks to minimize in the context of a British impeachment trial—close judicial reasoning, strict adherence to complex rules, “technical Subtilties”—become praiseworthy in the context of that trial's Indian scene. Burke's dilemma, as well as Hastings's, can best be understood as an instance of rhetorical contradiction.

4. Rhetorical Contradictions and Burke's Natural Law

A rhetorical contradiction, as I want to develop the concept, is distinct from a contradiction proper; we could understand the distinction by analogy to Aristotle's distinction between rhetoric and dialectic. Rhetorical reasoning, for Aristotle, typically proceeds by enthymemes rather than syllogisms; an enthymeme might omit a premise, or take conventional wisdom as a premise, or operate at a level of simplicity appropriate to a deliberating public rather than a circle of logicians. One might call an enthymeme an informal syllogism. In the same way, a rhetorical contradiction is an informal contradiction. It is not the sort of statement, such as “p and ¬p,” whose propositions must be incompatible regardless of the time or place at which they are stated. Rather, a rhetorical contradiction is the conjunction of two or more dissonant positions before a given audience. The sign of a rhetorical contradiction is not outright, verifiable incompatibility, but something closer to discomfort.

In this sense, Burke and Hastings faced reciprocal dilemmas. Their challenge was not to demonstrate conclusively that their contrasting stances in the trial's two scenes were consistent—they were engaged in a political conflict, not an academic disputation—but rather to mitigate their arguments’ dissonance to the greatest extent possible. For Burke, this dissonance grew from his near-simultaneous statements in critique of and in praise of legal reasoning, and his appeal to legal authorities as diverse and seemingly contradictory as the “law of Parliament” and the Koran. Similarly, Hastings demanded a strictly law-bound trial within which to defend his admittedly lawless conduct in India. He claimed the full benefits of the law for himself, while openly defending his denial of those benefits to those under his imperial sway. What, if anything, safeguarded him from hypocrisy?

Hastings found a solution in the discourse of political realism and raison d’état.Footnote ⁷⁵ Crucially, realism did not simply explain Hastings's choice “to advance against gathering Dangers” in India; it also explained why the law applied to him at home but not abroad. Lawless power was everywhere regrettable, but the British were free from such power, because they acknowledged a sovereign that underwrote a shared body of law. By contrast, there was no common sovereignty between the contending powers in India, or even within the Indian states, given their “unavoidable anarchy.” Hastings claimed to be ruled by law wherever the rule of law was practicable. In this view, Burke's conception of the impeachment was a dangerous extension of lawlessness into a place from which it had been precariously excluded; it threatened to make Britain more like despotic India. Hastings's embrace of realism, of law at home and anarchy abroad, was not always popular—one spectator claimed to identify a “Mr. Machiavel” among his defense attorneys—but it was familiar.Footnote ⁷⁶ Given the challenge of resolving a rhetorical contradiction—rendering two positions comfortable together, rather than jarring—familiarity was an important point in Hastings's favor.

Burke, it seems, faced a more difficult task: plausibly depicting the imperial metropole as less bound by positive law, and fortunately so, than its most distant region. He also faced the task of reconciling the various sources of legal authority on which he relied over the course of the trial, including the law of Parliament, a wide range of Indian jurisprudence, and the natural law. One of the most powerful accounts of the legal tensions in Burke's case is offered by Lida Maxwell. Maxwell points to “Burke's appeals to mutually subverting sets of laws,” positing that his deliberate invocation of conflicting laws amounts to “a dynamic practice of reflective judgment about the unprecedented,” which “reveals that any attempt to adhere to one set of laws (national or natural) is insufficient to do justice.”Footnote ⁷⁷ But while Maxwell captures the trial's legal indeterminacy, the trouble with her account is, first, that it gives Burke too much credit. As we have seen, Hastings's defense team was just as motivated as Burke to offer potentially incompatible legal standards. This fact suggests that the presence of these diverse legal standards cannot solely be attributed to Burke's commitment to “reflective judgment,” but rather to the structure of the trial itself.

Second, Maxwell understates Burke's goal of winning an argument, if not before the Lords then before the public. She characterizes Burke as deliberately prolonging tension between standards of judgment—yet doing so is surely a way of inviting an audience to suspend judgment, rather than exercise it. If the various sets of law invoked by Burke were truly mutually subversive, then how could either the Lords or the public come to a conclusion on Hastings's criminality or Britain's imperial policy? Burke's conduct in the trial makes clear that he demanded such a judgment. As a result, he was obliged to offer the judges a principle upon which to judge—a means of making his arguments in the trial's two scenes plausibly cohere. That principle was natural law. In the context of the trial, it is best understood not, as Maxwell would have it, as one more set of laws to stand in tension with the others, but as a synthesizing principle that brings together the British and the Indian, the deliberative and the judicial. A closer look at Burke's use of the natural law can shed light both on his attempts to bring coherence to his arguments across the trial and on the rhetorical uses of natural law discourse more generally.

As I noted at the beginning of the third section, Burke was pushed into an engagement with Indian law by the need to refute Hastings's claim that India was inherently lawless. But this engagement threatened his broader case in two ways. First, it raised the possibility of inconsistency: denouncing Hastings's exercise of lawless power in India, Burke was open to the charge that he himself was urging Britain's Parliament to set aside judicial procedures and rule lawlessly. Second, it risked dragging the trial into the sort of legal minutiae that, by Burke's own account, would seriously inhibit the audience's deliberative judgment. Burke attempted to surmount both of these challenges by turning to the language of natural law.

On the first point, Burke's words demonstrate his sensitivity to the inconsistency charge—that, while denying the possibility of arbitrary power in India, he was covertly demanding that the Lords exercise such power in Britain to supersede the common law and punish Hastings. In an important passage in the midst of his discussion of Indian law and Hastings's claim to arbitrary power, Burke acknowledges that the British government, as much as any government, can appear to act in an arbitrary manner: “This idea of arbitrary power has arisen from a gross confusion and perversion of ideas. . . . The Supreme power in every Country is not legally and in any ordinary way subject to a penal prosecution for any of its actions. It is unaccountable.” For instance, even if they “abuse their judgments,” the Lords cannot be held legally accountable for any decision they might reach in the impeachment. But, asked Burke, are supreme powers that commit or countenance injustice “less criminal, less rebellious against the Divine Majesty? . . . No. Till society fall into a state of dissolution, they cannot be accountable for their acts. But it is from confounding the unaccountable character inherent to the Supreme power with arbitrary power that all this confusion of ideas has arisen.”Footnote ⁷⁸

Sovereign power, then, is always absolute by definition. But arbitrary power, or power entirely outside the scope of law, is impossible; whether in Britain or in India, no power is exempt from natural law. (Of course, those acting on the false belief that they possess arbitrary power might still do great damage.) Even when human laws are silent, power is always finally governed, morally if not effectively, by “the Divine Majesty,” from which emanates the “great, immutable, pre-existent law.”Footnote ⁷⁹ If a given exercise of power appears arbitrary, it is simply because one is guilty of the “gross confusion” of failing to perceive the law that governs it. In the cases that Burke cites above, the source of the error is the fact that natural law is not perceptible in the same way that positive law is. Burke, then, claims that he is urging the Lords to act unaccountably but not lawlessly: “Your Lordships always had a boundless power. . . . You have now a boundless object,” the pursuit of “Imperial justice.”Footnote ⁸⁰ If Hastings claimed either that he possessed arbitrary power in India, or that Burke was pushing the Lords toward an arbitrary judgment, then he would be guilty of what Burke once called the error of believing “that nothing exists but what is gross and material.”Footnote ⁸¹

Just as arbitrary power is ultimately impossible in both Britain and India for the same reason, both deliberative judgment in Parliament and the legal codes of India are, for Burke, manifestations of the underlying natural law—or at least potential manifestations, when they serve the cause of justice. In this way, invoking natural law helps Burke to reconcile his claims across the trial's two scenes. In different local circumstances, and even in different argumentative contexts, different means of putting the natural law into practice might come to the fore. In his Reflections on the Revolution in France, published in the third year of the Hastings trial, Burke compared the political manifestations of abstract natural rights to a beam of pure light entering a prism: “These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are, by the laws of Nature, refracted from their straight line.”Footnote ⁸² Burke's conduct in the impeachment shows him pursuing the practical implications of this argument with respect to natural law. In one context, vindicating the natural law might require emphasizing the limited and “low” qualities of positive law; in another, it might require emphasizing “technical Subtilties” and “great principles of jurisprudence” as a hedge against the claims of arbitrary power. If one does not grant Burke's underlying claim about the natural law, these distinct emphases might well appear to represent contradictory attitudes about the value of legal reasoning and procedures. But if one does grant Burke's underlying claim, his arguments across the trial's two scenes are likely to sound much less dissonant. This, I argue, is among the reasons why Burke stresses natural law so heavily, in a mode analogous to Hastings's stress on raison d’état. While some have argued that Burke's invocation of natural law is “of doubtful relevance” in the broader context of the impeachment, I would contend that it plays a crucial role in mediating between the trial's British and Indian scenes.Footnote ⁸³

But natural law also responds to a second problem. If legalism really is intellectually and emotionally dulling, as Burke claimed at length, then surely he was actively damaging his case whenever he descended from the register of “Imperial justice” into the details of Indian jurisprudence. In a parliamentary debate on the empire, Burke had once lamented the “intrusion . . . of such company as quo warranto, and mandamus, and certiorari”; yet now he was enabling the intrusion into the impeachment debate of such company as the Fetfa, The Code of Gentoo Law, and the inheritance laws of Hindoostan. Burke could mitigate this concern by casting these particular laws as instantiations of a broader and more indeterminate natural law. He could assure his audience that Indian law had its “technical Subtilties,” and he could gesture at these subtleties in order to substantiate his rebuttal of Hastings. But once he had done so, the language of natural law allowed him to return to more deliberative ground, the ground on which he believed the public case against Britain's imperial practices had its best chance of success. The language of natural law enabled Burke to transmute Hastings's offenses against Indian law into offenses against “the Divine majesty”—and then to dwell on the latter charge.

Given Burke's premises about deliberative and judicial reasoning, this was an important advantage. Burke's language of natural law, as I proposed, is a language of lawfulness without legalism. It claims the binding force of law and the sanction of justice, but it is crucially underspecified. It is perceptible to reason, but incapable of being codified—and for that reason, it lacks the details and distinctions that, for Burke, degrade judicial reasoning. In other words, natural law is the most deliberative of legal standards. It enables judges to practice deliberative thinking—the mode of judgment that Burke considered richest and most sophisticated—in a legal context. For Burke, it is particularly suited to an impeachment, which, beneath its outwardly judicial forms, ought to be a deliberative procedure.

As Burke presents it, natural law is less apt to foster legalism precisely because it is underspecified. At no point in the trial does Burke sketch the natural law's demands in anything but the broadest strokes. It governs “crimes that have their rise in avarice, rapacity, pride, cruelty, ferocity, malignity of temper, haughtiness, insolence.”Footnote ⁸⁴ Burke adds that “there is no action which would pass for an action of extortion, of peculation, of bribery and of oppression in England, that is not an act of extortion, of peculation, of bribery and of oppression in Europe, Asia, Africa, and all the world over.”Footnote ⁸⁵ At the level of generality implied by the natural law, it is enough to point out that oppression is oppression, and that, like pornography, we will know it when we see it. In the same way, those who exercise judgment are called to account by the natural law in only the broadest terms, “before the great Judge, when He comes to call upon us for the tenour of a well-spent life,” with “tenour” suggesting a general tendency.Footnote ⁸⁶ Nowhere in the impeachment does Burke offer a precise account of the natural law's demands—of, say, the way in which it can help us to draw the line between rapacity and “honest graft.” Asking that of Burke's natural law would be a category error.

The natural law's lack of particularity is, for Burke, very much a point in its favor. But this very quality of underspecification has led some to conclude that Burke invokes the natural law only vaguely, or for “dramatic effect”—which I think is unwarranted, if we understand this as mere dramatic effect.Footnote ⁸⁷ Jennifer Pitts offers a more persuasive reading of Burke's natural law, which “might best be regarded not primarily as a set of rules, but rather as a means of conveying the universal scope of moral duties.”Footnote ⁸⁸ But what even this account neglects, I argue, is the effect that Burke held the invocation of the natural law to exert on deliberators; the natural law is important not only for what it might say, but for what it might do to us in the course of considering it. The natural law, much like the sublime, is a force capable of alarming us into reflection.Footnote ⁸⁹

For Burke, the natural law offers an alternative to the emotionally dulling effects of other legal reasoning; it is a legal discourse that conserves rather than dissipates outrage. In fact, Burke seems to posit a reciprocal relationship between the natural law and the moral emotions. On the one hand, emotions mediate the application of abstract natural law to concrete particulars. As Lauren Hall writes, “Burke looks for a rights language that is moderated by the claims of the heart”: emotional attachments help to constitute the prism through which the natural law passes, enabling the accommodation to circumstances that is so important in Burke's political thought.Footnote ⁹⁰ A deliberative judicial proceeding, like impeachment on Burke's model, is a way of publicly filtering natural law claims through emotive language. On the other hand, natural law lends itself to the very sort of charged language that can provoke indignation at injustice. It is one thing to say that Hastings overstepped the constitutional bounds on his authority; it is another to call him “rebellious against the Divine Majesty.” Burke conceived of impeachment as a procedure that would enable him to do both, to satisfy reason as well as resentment.

That should not imply, however, that the natural law functions for Burke as an intellectually empty signifier, a sort of rhetorical exclamation point placed on judgments reached by other means. Rather, it is a provocation to the exercise of “expanded” and “enlarged” judgment—the sort of judgment in which the question whether imperialism led to “more evil, or less evil” for Indians is not ruled out of order, but is treated as absolutely central.

This account suggests that the language of natural law can do a broader range of political work than we might suspect. Of course, there is a long tradition of conceiving the natural law as a forum of appeal from unjust human laws. But Burke's quarrel with human laws was not that they excused Hastings's crimes; indeed, he insisted that they also condemned them. Burke's complaint was rather that the modes of judging fostered and honed by immersion in those laws was utterly inadequate in the face of imperial, systemic crime; if human laws condemned Hastings, human lawyers, if they thought like lawyers, would not. The very precision that rendered such thinking worthwhile on a small scale left it unequipped for the largest scale—a scalpel, where the case called for a cleaver. Following Burke's lead, we might see natural law not only as a language of appeal from injustice, but as a supplement to ordinary modes of legal reasoning.