impeachments, the Lords,[84] on the 6th of May, 1679, appointed time and
place for hearing the Earl of Danby, by his council, upon the validity
of his plea of pardon, and for the trials of the other lords, and voted
an address to his Majesty, praying that he would be pleased to appoint
an High Steward for those purposes. These votes were, on the next day,
communicated to the Commons by message in the usual manner. On the 8th,
at a conference between the Houses upon the subject-matter of that
message, the Commons expressed themselves to the following
effect:--"They cannot apprehend what should induce your Lordships to
address his Majesty for an High Steward, for determining the validity of
the pardon which hath been pleaded by the Earl of Danby, as also for the
trial of the other five lords, because they conceive the constituting
an High Steward is not necessary, but that judgment may be given in
Parliament upon impeachment without an High Steward"; and concluded with
a proposition, that, for avoiding any interruption or delay, a committee
of both Houses might be nominated, to consider of the most proper ways
and methods of proceeding. This proposition the House of Peers, after a
long debate, rejected: _Dissentientibus_, Finch,[85] Chancellor, and
many other lords. However, on the 11th, the Commons' proposition of the
8th was upon a second debate agreed to; and the Lord Chancellor, Lord
President, and ten other lords, were named of the committee, to meet and
confer with a committee of the Commons. The next day the Lord President
reported, that the committees of both Houses met that morning, and made
an entrance into the business referred to them: that the Commons desired
to see the commissions that are prepared for an High Steward at these
trials, and also the commissions in the Lord Pembroke's and the Lord
Morley's cases: that to this the Lords' committees said,--"_The High
Steward is but Speaker pro tempore, and giveth his vote as well as the
other lords; this changeth not the nature of the court_; and the Lords
declared, they have power enough to proceed to trial, though the King
should not name an High Steward:[86] that this seemed to be a
satisfaction to the Commons, provided it was entered in the Lords'
Journals, which are records." Accordingly, on the same day, "_It is
declared and ordered by the Lords Spiritual and Temporal in Parliament
assembled, that the office of an High Steward, upon trials of peers upon
impeachments, is not necessary to the House of Peers; but that the Lords
may proceed in such trials, if an High Steward be not appointed
according to their humble desire._"[87] On the 13th the Lord President
reported, that the committees of both Houses had met that morning, and
discoursed, in the first place, on the matter of a Lord High Steward,
and had perused former commissions for the office of High Steward; and
then, putting the House in mind of the order and resolution of the
preceding day, proposed from the committees that a new commission might
issue, so as the words in the commission may be thus changed: viz.,
Instead of, _Ac pro eo quod officium Seneschalli Angliæ, (cujus
præsentia in hac parte requiritur,) ut accepimus, jam vacat_, may be
inserted, _Ac pro eo quod proceres et magnates in Parliamento nostro
assemblati nobis humiliter supplicaverunt ut Seneschallum Angliæ pro hac
vice constituere dignaremur_: to which the House agreed.[88]
It must be admitted that precedents drawn from times of ferment and
jealousy, as these were, lose much of their weight, since passion and
party prejudice generally mingle in the contest; yet let it be
remembered, that these are resolutions in which both Houses concurred,
and in which the rights of both were thought to be very nearly
concerned,--the Commons' right of impeaching with effect, and the whole
judicature of the Lords in capital cases. For, if the appointment of an
High Steward was admitted to be of absolute necessity, (however
necessary it may be for the regularity and solemnity of the proceeding
during the trial and until judgment, which I do not dispute,) every
impeachment may, for a reason too obvious to be mentioned, be rendered
ineffectual, and the judicature of the Lords in all capital cases
nugatory.
It was from a jealousy of this kind, not at that juncture altogether
groundless, and to guard against everything from whence the necessity of
an High Steward in the case of an impeachment might be inferred, that
the Commons proposed and the Lords readily agreed to the amendment in
the Steward's commission which I have already stated. And it hath, I
confess, great weight with me, that this amendment, which was at the
same time directed in the cases of the five Popish lords, when
commissions should pass for their trials, hath taken place in every
commission upon impeachments for treason since that time.[89] And I
cannot help remarking, that in the case of Lord Lovat, when neither the
heat of the times nor the jealousy of parties had any share in the
proceeding, the House ordered, "That the commission for appointing a
Lord High Steward shall be in the like form as that for the trial of the
Lord Viscount Stafford, as entered in the Journal of this House on the
30th of November, 1680: except that the same shall be in the English
language."[90]
I will make a short observation on this matter. The order, on the 13th
of May, 1679, for varying the form of the commission, was, as appeareth
by the Journal, plainly made in consequence of the resolution of the
12th, and was founded on it; and consequently the constant, unvarying
practice with regard to the new form goeth, in my opinion, a great way
towards showing, that, in the sense of all succeeding times, that
resolution was not the result of faction or a blamable jealousy, but was
founded in sound reason and true policy. It may be objected, that the
resolution of the 12th of May, 1679, goeth no further than to a
proceeding upon impeachment. The letter of the resolution, it is
admitted, goeth no further. But this is easily accounted for: a
proceeding by impeachment was the subject-matter of the conference, and
the Commons had no pretence to interpose in any other. But what say the
Lords? _The High Steward is but as a Speaker or Chairman pro tempore,
for the more orderly proceeding at the trials; the appointment of him
doth not alter the nature of the court, which still remaineth the Court
of the Peers in Parliament._ From these premises they draw the
conclusion I have mentioned. Are not these premises equally true in the
case of a proceeding upon indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the
High Steward's commission hath never varied from the ancient form in
such cases. The words objected to by the Commons, _Ac pro eo quod
officium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur,)
ut accepimus, jam vacat_, are still retained; but this proveth no more
than that the Great Seal, having no authority to vary in point of form,
hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in
the Court of the High Steward. I will now state the substance of that in
a proceeding in the Court of the Peers in Parliament; and shall make use
of that in the case of the Earl of Kilmarnock and others, as being the
latest, and in point of form agreeing with the former precedents. The
commission, after reciting that William, Earl of Kilmarnock, &c., stand
indicted before commissioners of gaol-delivery in the County of Surrey,
for high treason, in levying war against the King, and that the King
intendeth that the said William, Earl of Kilmarnock, &c., shall be
heard, examined, sentenced, and adjudged before himself, in this present
Parliament, touching the said treason, and for that the office of
Steward of Great Britain (whose presence is required upon this
occasion) is now vacant, as we are informed, appointeth the then Lord
Chancellor Steward of Great Britain, to bear, execute, and exercise (for
this time) the said office, with all things due and belonging to the
same office, in that behalf.
What, therefore, are the things due and belonging to the office in a
case of this kind? Not, as in the Court of the High Steward, a right of
judicature; for the commission itself supposeth that right to reside in
a court then subsisting before the King in Parliament. The parties are
to be there heard, sentenced, and adjudged. What share in the proceeding
doth the High Steward, then, take? By the practice and usage of the
Court of the Peers in Parliament, he giveth his vote as a member
thereof, with the rest of the peers; but, for the sake of regularity and
order, he presideth during the trial and until judgment, as Chairman or
Speaker _pro tempore_. In that respect, therefore, it may be properly
enough said, that his presence is required during the trial and until
judgment, and in no other. Herein I see no difference between the case
of an impeachment and of an indictment. I say, during the time of the
trial and until judgment; because the court hath, as I observed before,
from time to time done various acts, plainly judicial, before the
appointment of an High Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved. I will to this
purpose cite a few cases.
I begin with the latest, because they are the latest, and were ruled
with great deliberation, and for the most part upon a view of former
precedents. In the case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or writs of _Certiorari_
be issued for removing the indictments before the House; and on the
26th, the writ, which is made returnable before the King in Parliament,
with the return and indictments, was received and read. On the next day,
upon the report of the Lords' committees, that they had been attended
by the two Chief-Justices and Chief-Baron, and had heard them touching
the construction of the act of the 7th and 8th of King William, "for
regulating trials in cases of high treason and misprision of treason,"
the House, upon reading the report, came to several resolutions, founded
for the most part on the construction of that act. What that
construction was appeareth from the Lord High Steward's address to the
prisoners just before their arraignment. Having mentioned that act as
one happy consequence of the Revolution, he addeth,--"However
injuriously that revolution hath been traduced, whatever attempts have
been made to subvert this happy establishment founded on it, your
Lordships will now have the benefit of that law in its full extent."
I need not, after this, mention any other judicial acts done by the
House in this case, before the appointment of the High Steward: many
there are. For the putting a construction upon an act relative to the
conduct of the court and the right of the subject at the trial, and in
the proceedings preparatory to it, and this in a case entirely new, and
upon a point, to say no more in this place, not extremely clear, was
undoubtedly an exercise of authority proper only for a court having full
cognizance of the cause.
I will not minutely enumerate the several orders made preparatory to the
trial of Lord Lovat, and in the several cases I shall have occasion to
mention, touching the time and place of the trial, the allowance or
non-allowance of council, and other matters of the like kind, all
plainly judicial; because the like orders occur in all the cases where a
journal of the preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think the order directing the
form of the High Steward's commission, which I have already taken notice
of, is not very consistent with the idea of a court whose powers can be
supposed to depend, at any point of time, upon the existence or
dissolution of that commission.
In the case of the Earl of Derwentwater and the other lords impeached at
the same time, the House received and recorded the confessions of those
of them who pleaded guilty, long before the _teste_ of the High
Steward's commission, which issued merely for the solemnity of giving
judgment against them upon their conviction. This appeareth by the
commission itself. It reciteth, that the Earl of Derwentwater and
others, _coram nobis in præsenti Parliamento_, had been impeached by the
Commons for high treason, and had, _coram nobis in præsenti
Parliamento_, pleaded guilty to that impeachment; and that the King,
intending that the said Earl of Derwentwater and others, _de et pro
proditione unde ipsi ut præfertur impetit', accusat', et convict'
existunt coram nobis in præsenti Parliamento, secundum legem et
consuetudinem hujus regni nostri Magnæ Britanniæ, audientur,
sententientur, et adjudicentur_, constituteth the then Lord Chancellor
High Steward (_hac vice_) to do and execute all things which to the
office of High Steward in that behalf do belong. The receiving and
recording the confession of the prisoners, which amounted to a
conviction, so that nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no assembly, how
great soever, not having full cognizance of the cause, could exercise.
In the case of Lord Salisbury, who had been impeached by the Commons for
high treason, the Lords, upon his petition, allowed him the benefit of
the act of general pardon passed in the second year of William and Mary,
so far as to discharge him from his imprisonment, upon a construction
they put upon that act, no High Steward ever having been appointed in
that case. On the 2d of October, 1690, upon reading the Earl's petition,
setting forth that he had been a prisoner for a year and nine months in
the Tower, notwithstanding the late act of free and general pardon, and
praying to be discharged, the Lords ordered the Judges to attend on the
Monday following, to give their opinions whether the said Earl be
pardoned by the act. On the 6th the Judges delivered their opinions,
that, if his offence was committed before the 13th of February, 1688,
and not in Ireland or beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day he and his
sureties entered into a recognizance of bail, himself in ten thousand
pounds, and two sureties in five thousand pounds each; and on the 30th
he and his sureties were, after a long debate, discharged from their
recognizance.[91] It will not be material to inquire whether the House
did right in discharging the Earl without giving the Commons an
opportunity of being heard; since, in fact, they claimed and exercised a
right of judicature without an High Steward,--which is the only use I
make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords
Widdrington and Nairn, long after the High Steward's commission
dissolved. These lords had judgment passed on them at the same time
that judgment was given against the Lords Derwentwater, Nithsdale, and
Kenmure; and judgment being given, the High Steward immediately broke
his staff, and declared the commission dissolved. They continued
prisoners in the Tower under reprieves, till the passing the act of
general pardon, in the 3d of King George I. On the 21st of November,
1717, the House being informed that these lords had severally entered
into recognizances before one of the judges of the Court of King's Bench
for their appearance in the House in this session of Parliament, and
that the Lords Carnwarth and Widdrington were attending accordingly, and
that the Lord Nairn was ill at Bath and could not then attend, the Lords
Carnwarth and Widdrington were called in, and severally at the bar
prayed that their appearance might be recorded; and likewise prayed the
benefit of the act[92] for his Majesty's general and free pardon.
Whereupon the House ordered that their appearance be recorded, and that
they attend again to-morrow, in order to plead the pardon; and the
recognizance of the Lord Nairn was respited till that day fortnight. On
the morrow the Lords Carnwarth and Widdrington, then attending, were
called in; and the Lord Chancellor acquainted them severally, that it
appeared by the records of the House that they severally stood attainted
of high treason, and asked them severally what they had to say why they
should not be remanded to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and that they might
have their lives and liberty pursuant thereunto. And the
Attorney-General, who then attended for that purpose, declaring that he
had no objection on his Majesty's behalf to what was prayed, conceiving
that those lords, not having made any escape since their conviction,
were entitled to the benefit of the act, the House, after reading the
clause in the act relating to that matter,[93] agreed that they should
be allowed the benefit of the pardon, as to their lives and liberties,
and discharged their recognizances, and gave them leave to depart
without further day given for their appearance. On the 6th of December
following, the like proceedings were had, and the like orders made, in
the case of Lord Nairn.[94]
I observe that the Lord Chancellor did not ask these lords what they had
to say why execution should not be awarded. There was, it is probable,
some little delicacy as to that point. But since the allowance of the
benefit of the act, as to life and liberty, which was all that was
prayed, was an effectual bar to any future imprisonment on that account,
and also to execution, and might have been pleaded as such in any court
whatsoever, the whole proceeding must be admitted to have been in a
court having complete jurisdiction in the case, notwithstanding the High
Steward's commission had been long dissolved,--which is all the use I
intended to make of this case.
I will not recapitulate: the cases I have cited, and the conclusions
drawn from them, are brought into a very narrow compass. I will only
add, that it would sound extremely harsh to say, that a court of
criminal jurisdiction, founded in immemorial usage, and held in judgment
of law before the King himself, can in any event whatever be under an
utter incapacity of proceeding to trial and judgment, either of
condemnation or acquittal, the ultimate objects of every criminal
proceeding, without certain supplemental powers derived from the Crown.
These cases, with the observations I have made on them, I hope
sufficiently warrant the opinion of the Judges upon that part of the
second question, in the case of the late Earl Ferrers, which I have
already mentioned,--and also what was advanced by the Lord Chief-Baron
in his argument on that question,--"That, though the office of High
Steward should happen to determine before execution done according to
the judgment, yet the Court of the Peers in Parliament, where that
judgment was given, would subsist for all the purposes of justice during
the sitting of the Parliament," and consequently, that, in the case
supposed by the question, that court might appoint a new day for the
execution.
No. II.
Questions referred by the Lords to the Judges, in the Impeachment
of Warren Hastings, Esquire, and the Answers of the
Judges.--Extracted from the Lords' Journals and Minutes.
_First._
_Question._--Whether, when a witness produced and examined in a criminal
proceeding by a prosecutor disclaims all knowledge of any matter so
interrogated, it be competent for such prosecutor to pursue such
examination, by proposing a question containing the particulars of an
answer supposed to have been made by such witness before a committee of
the House of Commons, or in any other place, and by demanding of him
whether the particulars so suggested were not the answer he had so made?
1788, February 29.--Pa. 418.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:--"That, when a witness
produced and examined in a criminal proceeding by a prosecutor disclaims
all knowledge of any matter so interrogated, it is not competent for
such prosecutor to pursue such examination, by proposing a question
containing the particulars of an answer supposed to have been made by
such witness before a committee of the House of Commons, or in any other
place, and by demanding of him whether the particulars so suggested were
not the answer he had so made."
1788, April 10.--Pa. 592.
_Second._
_Question._--Whether it be competent for the Managers to produce an
examination taken without oath by the rest of the Council in the absence
of Mr. Hastings, the Governor-General, charging Mr. Hastings with
corruptly receiving 3,54,105 rupees, which examination came to his
knowledge, and was by him transmitted to the Court of Directors as a
proceeding of the said Councillors, in order to introduce the proof of
his demeanor thereupon,--it being alleged by the Managers for the
Commons, that he took no steps to clear himself, in the opinion of the
said Directors, of the guilt thereby imputed, but that he took active
means to prevent the examination by the said Councillors of his servant
Cantoo Baboo?
1789, May 14--Pa. 677.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, May 20.--Pa. 718.
_Third._
_Question._--Whether the instructions from the Court of Directors of the
United Company of Merchants of England trading to the East Indies, to
Warren Hastings, Esquire, Governor-General, Lieutenant-General John
Clavering, the Honorable George Monson, Richard Barwell, Esquire, and
Philip Francis, Esquire, Councillors, (constituted and appointed the
Governor-General and Council of the said United Company's Presidency of
Fort William in Bengal, by an act of Parliament passed in the last
session, intituled, "An act for establishing certain regulations for the
better management of the affairs of the East India Company, as well in
India as in Europe,") of the 29th of March, 1774, Par. 31, 32, and 35,
the Consultation of the 11th March, 1775, the Consultation of the 13th
of March, 1775, up to the time that Mr. Hastings left the Council, the
Consultation of the 20th of March, 1775, the letter written by Mr.
Hastings to the Court of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or defend his
conduct,) are sufficient to introduce the examination of Nundcomar, or
the proceedings of the rest of the Councillors, on said 13th of March,
after Mr. Hastings left the Council,--such examination and proceedings
charging Mr. Hastings with, corruptly receiving 3,54,105 rupees?
1789, May 21.--Pa. 730.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, May 27.--Pa. 771.
_Fourth._
_Question._--Whether the public accounts of the Nizamut and Bhela, under
the seal of the Begum, attested also by the Nabob, and transmitted by
Mr. Goring to the Board of Council at Calcutta, in a letter bearing date
the 29th June, 1775, received by them, recorded without objection on the
part of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money
received by Mr. Hastings,--and it being in proof, that Mr. Hastings, on
the 11th of May, 1778, moved the Board to comply with the requisitions
of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah
Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board,--ought
to be read?
1789, June 17.--Pa. 855.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, June 24.--Pa. 922.
_Fifth._
_Question._--Whether the paper delivered by Sir Elijah Impey, on the 7th
of July, 1775, in the Supreme Court, to the Secretary of the Supreme
Council, in order to be transmitted to the Council as the resolution of
the Court in respect to the claim made for Roy Rada Churn, on account of
his being vakeel of the Nabob Mobarek ul Dowlah,--and which paper was
the subject of the deliberation of the Council on the 31st July, 1775,
Mr. Hastings being then present, and was by them transmitted to the
Court of Directors, as a ground for such instructions from the Court of
Directors as the occasion might seem to require,--may be admitted as
evidence of the actual state and situation of the Nabob with reference
to the English government?
1789, July 2.--Pa. 1001.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
affirmative,--and gave his reasons.
1789, July 7.--Pa. 1030.
_Sixth._
_Question._--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, 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 in arrear immediately after the letting, the evidence would in
that case be competent?
1790, April 22.--Pa. 364.
* * * * *
_Answer._--The lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is 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, let the lands mentioned in the said sixth
article of charge to Kelleram, fell into arrear and was deficient,"--and
gave his reasons.
1790, April 27.--Pa. 388.
_Seventh._
_Question._--Whether it be competent for the Managers for the Commons to
put the following question to the witness, upon the sixth article of
charge, viz.: "What impression the letting of the lands to Kelleram and
Cullian Sing made on the minds of the inhabitants of that country"?
1790, April 27.--Pa. 391.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is not
competent to the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz.: What impression,
the letting of the lands to Kelleram and Cullian Sing made on the minds
of the inhabitants of that country,"--and gave his reasons.
1790, April 29.--Pa. 413.
_Eighth._