the character and spirit of our judicial proceeding, continued from time
immemorial, supported by arguments of sound theory, and confirmed by
effects highly beneficial, could not see without uneasiness, in this
great trial for Indian offences, a marked innovation. Against their
reiterated requests, remonstrances, and protestations, the opinions of
the Judges were always taken secretly. Not only the constitutional
publicity for which we contend was refused to the request and entreaty
of your Committee, but when a noble peer, on the 24th day of June, 1789,
did in open court declare that he would then propose some questions to
the Judges in that place, and hoped to receive their answer openly,
according to the approved good customs of that and of other courts, the
Lords instantly put a stop to the further proceeding by an immediate
adjournment to the Chamber of Parliament. Upon this adjournment, we find
by the Lords' Journals, that the House, on being resumed, ordered, that
"it should resolve itself into a Committee of the whole House, on
Monday next, to take into consideration what is the proper manner of
putting questions by the Lords to the Judges, and of their answering the
same, in judicial proceedings." The House did thereon resolve itself
into a committee, from which the Earl of Galloway, on the 29th of the
same month, reported as follows:--"That the House has, in the trial of
Warren Hastings, Esquire, proceeded in a regular course, in the manner
of propounding their questions to the Judges in the Chamber of
Parliament, and in receiving their answers to them in the same place."
The resolution was agreed to by the Lords; but the protest as below[31]
was entered thereupon, and supported by strong arguments.
Your Committee remark, that this resolution states only, that the House
had proceeded, in this secret manner of propounding questions to the
Judges and of receiving their answers, during the trial, and on matters
of debate between the parties, "in a regular course." It does not
assert that another course would not have been _as_ regular. It does not
state either judicial convenience, principle, or body of precedents for
that _regular course_. No such body of precedents appear on the Journal,
that we could discover. Seven-and-twenty, at least, in a regular series,
are directly contrary to this regular course. Since the era of the 29th
of June, 1789, no one question has been admitted to go publicly to the
Judges.
This determined and systematic privacy was the more alarming to your
Committee, because the questions did not (except in that case) originate
from the Lords for the direction of their own conscience. These
questions, in some material instances, were not made or allowed by the
parties at the bar, nor settled in open court, but differed materially
from what your Managers contended was the true state of the question, as
put and argued by them. They were such as the Lords thought proper to
state for them. Strong remonstrances produced some alteration in this
particular; but even after these remonstrances, several questions were
made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent before this, in which the
Peers, on a proposal of the Commons, or of a less weighty person before
their court, to have the cases publicly referred to the Judges, and
their arguments and resolutions delivered in their presence, absolutely
refused. The very few precedents of such private reference on trials
have been made, as we have observed already, _sub silentio_, and without
any observation from the parties. In the precedents we produce, the
determination is accompanied with its reasons, and the publicity is
considered as the clear, undoubted right of the parties.
Your Committee, using their best diligence, have never been able to form
a clear opinion upon the ground and principle of these decisions. The
mere result, upon each case decided by the Lords, furnished them with no
light, from any principle, precedent, or foregone authority of law or
reason, to guide them with regard to the next matter of evidence which
they had to offer, or to discriminate what matter ought to be urged or
to be set aside: your Committee not being able to divine whether the
particular evidence, which, upon a conjectural principle, they might
choose to abandon, would not appear to this House, and to the judging
world at large, to be admissible, and possibly decisive proof. In these
straits, they had and have no choice, but either wholly to abandon the
prosecution, and of consequence to betray the trust reposed in them by
this House, or to bring forward such matter of evidence as they are
furnished with from sure sources of authenticity, and which in their
judgment, aided by the best advice they could obtain, is possessed of a
moral aptitude juridically to prove or to illustrate the case which the
House had given them, in charge.
MODE OF PUTTING THE QUESTIONS.
When your Committee came to examine into those private opinions of the
Judges, they found, to their no small concern, that the mode both of
putting the questions to the Judges, and their answers, was still more
unusual and unprecedented than the privacy with which those questions
were given and resolved.
This mode strikes, as we apprehend, at the vital privileges of the
House. For, with the single exception of the first question put to the
Judges in 1788, the case being stated, the questions are raised
directly, specifically, and by name, on those privileges: that is, _What
evidence is it competent for the Managers of the House of Commons to
produce?_ We conceive that it was not proper, _nor justified by a single
precedent_, to refer to the Judges of the inferior courts any question,
and still less for them to decide in their answer, of what is or is not
competent for the House of Commons, or for any committee acting under
their authority, to do or not to do, in any instance or respect
whatsoever. This new and unheard-of course can have no other effect than
to subject to the discretion of the Judges the Law of Parliament and the
privileges of the House of Commons, and in a great measure the judicial
privileges of the Peers themselves: any intermeddling in which on their
part we conceive to be a dangerous and unwarrantable assumption of
power. It is contrary to what has been declared by Lord Coke himself,
in a passage before quoted, to be the duty of the Judges,--and to what
the Judges of former times have confessed to be their duty, on occasions
to which he refers in the time of Henry VI. And we are of opinion that
the conduct of those sages of the law, and others their successors, who
have been thus diffident and cautious in giving their opinions upon
matters concerning Parliament, and particularly on the privileges of the
House of Commons, was laudable in the example, and ought to be followed:
particularly the principles upon which the Judges declined to give their
opinions in the year 1614. It appears by the Journals of the Lords, that
a question concerning the law relative to impositions having been put to
the Judges, the proceeding was as follows. "Whether the Lords the Judges
shall be heard deliver their opinion touching the point of impositions,
before further consideration be had of answer to be returned to the
lower House concerning the message from them lately received. Whereupon
the number of the Lords requiring to hear the Judges' opinions by saying
'_Content_' exceeding the others which said '_Non Content_,' the Lords
the Judges, so desiring, were permitted to withdraw themselves into the
Lord Chancellor's private rooms, where having remained awhile and
advised together, they returned into the House, and, having taken their
places, and standing discovered, did, by the mouth of the Lord
Chief-Justice of the King's Bench, humbly desire to be forborne at this
time, in this place, to deliver any opinion in this case, for many
weighty and important reasons, which his Lordship delivered with great
gravity and eloquence; concluding that himself and his brethren are upon
particulars in judicial course to speak and judge between the King's
Majesty and his people, and likewise between his Highness's subjects,
and in no case to be disputants on any side."
Your Committee do not find anything which, through inadvertence or
design, had a tendency to subject the law and course of Parliament to
the opinions of the Judges of the inferior courts, from that period
until the 1st of James II. The trial of Lord Delamere for high treason
was had by special commission before the Lord High Steward: it was
before the act which directs that _all_ peers should be summoned to such
trials. This was not a trial in full Parliament, in which case it was
then contended for that the Lord High Steward was the judge of the law,
presiding in the Court, but had no vote in the verdict, and that the
Lords were triers only, and had no vote in the judgment of law. This was
looked on as the course, where the trial was not in full Parliament, in
which latter case there was no doubt but that the Lord High Steward made
a part of the body of the triers, and that the whole House was the
judge.[32] In this cause, after the evidence for the Crown had been
closed, the prisoner prayed the Court to adjourn. The Lord High Steward
doubted his power to take that step in that stage of the trial; and the
question was, "Whether, the trial not being in full Parliament, when the
prisoner is upon his trial, and evidence for the King is given, the
Lords being (as it may be termed) charged with the prisoner, the Peers
may separate for a time, which is the consequence of an adjournment?"
The Lord High Steward doubted of his power to adjourn the Court. The
case was evidently new, and his Grace proposed to have the opinion of
the Judges upon it. The Judges in consequence offering to withdraw into
the Exchequer Chamber, Lord Falconberg "insisted that the question
concerned the privilege of the Peerage only, and conceived that _the
Judges are not concerned to make any determination in that matter; and
being such a point of privilege, certainly the inferior courts have no
right to determine it_." It was insisted, therefore, that the Lords
triers should retire with the Judges. The Lord High Steward thought
differently, and opposed this motion; but finding the other opinion
generally prevalent, he gave way, and the Lords triers retired, taking
the Judges to their consult. When the Judges returned, they delivered
their opinion in _open court_. Lord Chief-Justice Herbert spoke for
himself and the rest of the Judges. After observing on the novelty of
the case, with a temperate and becoming reserve with regard to the
rights of Parliaments, he marked out the limits of the office of the
inferior Judges on such occasions, and declared,--"_All that we, the
Judges, can do is to acquaint your Grace and the noble Lords what the
law is in the inferior courts in cases of the like nature_, and the
reason of the law in those points, and _then leave the jurisdiction of
the court to its proper judgment_." The Chief-Justice concluded his
statement of the usage below, and his observations on the difference of
the cases of a peer tried in full Parliament and by a special
commission, in this manner:--"Upon the whole matter, my Lords, whether
the Peers being judges in the one and not in the other instance alters
the case, or whether the reason of the law in inferior courts why the
jury are not permitted to separate until they have discharged
themselves of their verdict may have any influence on this case, _where
that reason seems to fail_, the prisoner being to be tried by men of
unquestionable honor, _we cannot presume so far as to make any
determination, in a case which is both new to us and of great
consequence in itself_; but think it the proper way for _us_, having
laid matters as we conceive them before your Grace and my Lords, _to
submit the jurisdiction of your own court to your own determination_."
It appears to your Committee, that the Lords, who stood against
submitting the course of their high court to the inferior Judges, and
that the Judges, who, with a legal and constitutional discretion,
declined giving any opinion in this matter, acted as became them; and
your Committee sees no reason why the Peers at this day should be less
attentive to the rights of their court with regard to an exclusive
judgment on their own proceedings or to the rights of the Commons acting
as accusers for the whole commons of Great Britain in that court, or why
the Judges should be less reserved in deciding upon any of these points
of high Parliamentary privilege, than the Judges of that and the
preceding periods. This present case is a proceeding in full Parliament,
and not like the case under the commission in the time of James II., and
still more evidently out of the province of Judges in the inferior
courts.
All the precedents previous to the trial of Warren Hastings, Esquire,
seem to your Committee to be uniform. The Judges had constantly refused
to give an opinion on any of the powers, privileges, or competencies of
either House. But in the present instance your Committee has found, with
great concern, a further matter of innovation. Hitherto the constant
practice has been to put questions to the Judges but in the three
following ways: as, 1st, A question of pure abstract law, without
reference to any case, or merely upon an A.B. case stated to them; 2dly,
To the legal construction of some act of Parliament; 3dly, To report the
course of proceeding in the courts below upon an abstract case. Besides
these three, your Committee knows not of a single example of any sort,
during the course of any judicial proceeding at the bar of the House of
Lords, whether the prosecution has been by indictment, by information
from the Attorney-General, or by impeachment of the House of Commons.
In the present trial, the Judges appear to your Committee not to have
given their judgment on points of law, stated as such, but to have in
effect tried the cause, in the whole course of it,--with one instance to
the contrary.
The Lords have stated no question of general law, no question on the
construction of an act of Parliament, no question concerning the
practice of the courts below. _They put the whole gross case and matter
in question, with all its circumstances, to the Judges._ They have, _for
the first time_, demanded of them what particular person, paper, or
document ought or ought not to be produced before them by the Managers
for the Commons of Great Britain: for instance, whether, under such an
article, the Bengal Consultations of such a day, the examination of
Rajah Nundcomar, and the like. The operation of this method is in
substance not only to make the Judges masters of the whole process and
conduct of the trial, but through that medium to transfer to them the
ultimate judgment on the cause itself and its merits.
The Judges attendant on the Court of Peers hitherto have not been
supposed to know the particulars and minute circumstances of the cause,
and must therefore be incompetent to determine upon those circumstances.
The evidence taken, is not, of course, that we can find, delivered to
them; nor do we find that in fact any order has been made for that
purpose, even supposing that the evidence could at all regularly be put
before them. They are present in court, not to hear the trial, but
solely to advise in matter of law; they cannot take upon themselves to
say anything about the Bengal Consultations, or to know anything of
Rajah Nundcomar, of Kelleram, or of Mr. Francis, or Sir John Clavering.
That the House may be the more fully enabled to judge of the nature and
tendency of thus putting the question, _specifically, and on the gross
case_, your Committee thinks fit here to insert one of those questions,
reserving a discussion of its particular merits to another place. It was
stated on the 22d of April, 1790, "On that day the Managers proposed to
show that Kelleram fell into great balances with the East India Company,
in consequence of his appointment." It is so stated in the printed
Minutes (p. 1206). But the real tendency and gist of the proposition is
not shown. However, the question was put, "Whether it be or be not
competent _to the Managers for the Commons to give evidence upon the
charge in the sixth article, to prove_ that the rent [at?] which the
defendant, Warren Hastings, Esquire, let the lands mentioned in the said
sixth article of charge to Kelleram fell into arrear and was deficient;
and whether, if proof were offered that the rent fell into arrear
immediately after the letting, the evidence in that case would be
competent?" The Judges answered, on the 27th of the said month, as
follows:--"_It is not competent for the Managers for the House of
Commons_ to give evidence upon the charge in the sixth article, to prove
that the rent at which the defendant, Warren Hastings, let the lands
[mentioned?] in the said sixth article of charge to Kelleram fell into
arrear and was deficient."
The House will observe that on the question two cases of competence were
put: the first, on the competence of Managers for the House of Commons
to give the evidence supposed to be offered by them, but which we deny
to have been offered in the manner and for the purpose assumed in this
question; the second is in a shape apparently more abstracted, and more
nearly approaching to Parliamentary regularity,--on the competence of
the evidence itself, in the case of a supposed circumstance being
superadded. The Judges answered only the first, denying flatly the
competence of the Managers. As to the second, the competence of the
supposed evidence, they are profoundly silent. Having given this blow to
our competence, about the other question, (which was more within their
province,) namely, the competence of evidence on a case hypothetically
stated, they give themselves no trouble. The Lords on that occasion
rejected the whole evidence. On the face of the Judges' opinion it is a
determination _on a case_, the trial of which was not with them, but it
contains _no rule or principle of law_, to which alone it was their duty
to speak.[33]
These essential innovations tend, as your Committee conceives, to make
an entire alteration in the constitution and in the purposes of the High
Court of Parliament, and even to reverse the ancient relations between
the Lords and the Judges. They tend wholly to take away from the Commons
the benefit of making good their case before the proper judges, and
submit this high inquest to the inferior courts.
Your Committee sees no reason why, on the same principles and
precedents, the Lords may not terminate their proceedings in this, and
in all future trials, by sending the whole body of evidence taken before
them, in the shape of a special verdict, to the Judges, and may not
demand of them, whether they ought, on the whole matter, to acquit or
condemn the prisoner; nor can we discover any cause that should hinder
them [the Judges] from deciding on the accumulative body of the evidence
as hitherto they have done in its parts, and from dictating the
existence or non-existence of a misdemeanor or other crime in the
prisoner as they think fit, without any more reference to principle or
precedent of law than hitherto they have thought proper to apply in
determining on the several parcels of this cause.
Your Committee apprehends that very serious inconveniencies and
mischiefs may hereafter arise from a practice in the House of Lords of
considering itself as unable to act without the judges of the inferior
courts, of implicitly following their dictates, of adhering with a
literal precision to the very words of their responses, and putting them
to decide on the competence of the Managers for the Commons, the
competence of the evidence to be produced, who are to be permitted to
appear, what questions are to be asked of witnesses, and indeed, parcel
by parcel, on the whole of the gross case before them,--as well as to
determine upon the order, method, and process of every part of their
proceedings. The judges of the inferior courts are by law rendered
independent of the Crown. But this, instead of a benefit to the subject,
would be a grievance, if no way was left of producing a responsibility.
If the Lords cannot or will not act without the Judges, and if (which
God forbid!) the Commons should find it at any time hereafter necessary
to impeach them before the Lords, this House would find the Lords
disabled in their functions, fearful of giving any judgment on matter of
law or admitting any proof of fact without them [the Judges]; and having
once assumed the rule of proceeding and practice below as their rule,
they must at every instant resort, for their means of judging, to the
authority of those whom they are appointed to judge.
Your Committee must always act with regard to men as they are. There are
no privileges or exemptions from the infirmities of our common nature.
We are sensible that all men, and without any evil intentions, will
naturally wish to extend their own jurisdiction, and to weaken all the
power by which they may be limited and controlled. It is the business of
the House of Commons to counteract this tendency. This House had given
to its Managers no power to abandon its privileges and the rights of its
constituents. They were themselves as little disposed as authorized to
make this surrender. They are members of this House, not only charged
with the management of this impeachment, but partaking of a general
trust inseparable from the Commons of Great Britain in Parliament
assembled, one of whose principal functions and duties it is to be
observant of the courts of justice, and to take due care that none of
them, from the lowest to the highest, shall pursue new courses, unknown
to the laws and constitution, of this kingdom, or to equity, sound legal
policy, or substantial justice. Your Committee were not sent into
Westminster Hall for the purpose of contributing in their persons, and
under the authority of the House, to change the course or law of
Parliament, which had continued unquestioned for at least four hundred
years. Neither was it any part of their mission to suffer precedents to
be established, with relation to the law and rule of evidence, which
tended in their opinion to shut up forever all the avenues to justice.
They were not to consider a rule of evidence as a means of concealment.
They were not, without a struggle, to suffer any subtleties to prevail
which would render a process in Parliament, not the terror, but the
protection, of all the fraud and violence arising from the abuse of
British power in the East. Accordingly, your Managers contended with all
their might, as their predecessors in the same place had contended with
more ability and learning, but not with more zeal and more firmness,
against those dangerous innovations, as they were successively
introduced: they held themselves bound constantly to protest, and in one
or two instances they did protest, in discourses of considerable length,
against those private, and, for what they could find, unargued judicial
opinions, which must, as they fear, introduce by degrees the miserable
servitude which exists where the law is uncertain or unknown.
DEBATES ON EVIDENCE.
The chief debates at the bar, and the decisions of the Judges, (which we
find in all cases implicitly adopted, in all their extent and without
qualification, by the Lords,) turned upon _evidence_. Your Committee,
before the trial began, were apprised, by discourses which prudence did
not permit them to neglect, that endeavors would be used to embarrass
them in their proceedings by exceptions against evidence; that the
judgments and opinions of the courts below would be resorted to on this
subject; that there the rules of evidence were precise, rigorous, and
inflexible; and that the counsel for the criminal would endeavor to
introduce the same rules, with the same severity and exactness, into
this trial. Your Committee were fully assured, and were resolved
strenuously to contend, that no doctrine or rule of law, much less the
practice of any court, ought to have weight or authority in Parliament,
further than as such doctrine, rule, or practice is agreeable to the
proceedings in Parliament, or hath received the sanction of approved
precedent there, or is founded on the immutable principles of
substantial justice, without which, your Committee readily agrees, no
practice in any court, high or low, is proper or fit to be maintained.