_Question._--Whether it be competent to the Managers for the Commons to

put the following question to the witness, upon the seventh article of

charge, viz.: "Whether more oppressions did actually exist under the new

institution than under the old"?

1790, April 29.--Pa. 415.

* * * * *

_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 seventh article of charge, viz.: Whether more

oppressions did actually exist under the new institution than under the

old,"--and gave his reasons.

1790, May 4.--Pa. 428.

_Ninth._

_Question._--Whether the letter of the 13th April, 1781, can be given in

evidence by the Managers for the Commons, to prove that the letter of

the 5th of May, 1781, already given in evidence, relative to the

abolition of the Provincial Council and the subsequent appointment of

the Committee of Revenue, was false in any other particular than that

which is charged in the seventh article of charge?

1790, May 20.--Pa. 557.

* * * * *

_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 for the Managers on the part of the Commons to give any

evidence on the seventh article of impeachment, to prove that the

letter of the 5th of May, 1781, is false in any other particular than

that wherein it is expressly charged to be false,"--and gave his

reasons.

1790, June 2.--Pa. 634.

_Tenth._

_Question._--Whether it be competent to the Managers for the Commons to

examine the witness to any account of the debate which was had on the

9th day of July, 1778, previous to the written minutes that appear upon

the Consultation of that date?

1794, February 25.--Lords' Minutes.

* * * * *

_Answer._--The Lord Chief-Justice of the Court of Common Pleas delivered

the unanimous opinion of the Judges upon the said question,--"That it is

not competent to the Managers for the Commons to examine the witness,

Philip Francis, Esquire, to any account of the debate which was had on

the 9th day of July, 1778, previous to the written minutes that appear

upon the Consultation of that date,"--and gave his reasons.

1794, February 27.--Lords' Minutes.

_Eleventh._

_Question._--Whether it is competent for the Managers for the Commons,

in reply, to ask the witness, whether, between the time of the original

demand being made upon Cheyt Sing and the period of the witness's

leaving Bengal, it was at any time in his power to have reversed or put

a stop to the demand upon Cheyt Sing,--the same not being relative to

any matter originally given in evidence by the defendant?

1794, February 27.--Lords' Minutes.

* * * * *

_Answer._--The Lord Chief-Justice of the Court of Common Pleas delivered

the unanimous opinion of the Judges upon the said question,--"That it is

not competent for the Managers for the Commons to ask the witness,

whether, between the time of the original demand being made upon Cheyt

Sing and the period of his leaving Bengal, it was at any time in his

power to have reversed or put a stop to the demand upon Cheyt Sing,--the

same not being relative to any matter originally given in evidence by

the defendant,"--and gave his reasons.

1794, March 1.--Lords' Minutes.

_Twelfth._

_Question._--Whether a paper, read in the Court of Directors on the 4th

of November, 1783, and then referred by them to the consideration of the

Committee of the whole Court, and again read in the Court of Directors

on the 19th of November, 1783, and amended and ordered by them to be

published for the information of the Proprietors, can be received in

evidence, in reply, to rebut the evidence, given by the defendant, of

the thanks of the Court of Directors, signified to him on the 28th of

June, 1785?

1794, March 1.--Lords' Minutes.

_Answer._--Whereupon the Lord Chief-Justice of the Court of Common

Pleas, having conferred with the rest of the Judges present, delivered

their unanimous opinion upon the said question, in the negative,--and

gave his reasons.

1794, March 1.--Lords' Minutes.

FOOTNOTES:

[82] See Lord Clarendon's commission as High Steward, and the writs and

precepts preparatory to the trial, in Lord Morley's case. VII. St. Tr.

[83] See the orders previous to the trial, in the cases of the Lords

Kilmarnock, &c., and Lord Lovat, and many other modern cases.

[84] Lords' Journals.

[85] Afterwards Earl of Nottingham.

[86] In the Commons' Journal of the 15th of May it standeth

thus:--"Their Lordships further declared to the committee, that a Lord

High Steward, was made _hac vice_ only; that, notwithstanding the making

of a Lord High Steward, the court remained the same, and was not thereby

altered, but still remained the Court of Peers in Parliament; that the

Lord High Steward was but as a Speaker or Chairman, for the more orderly

proceeding at the trials."

[87] This resolution my Lord Chief-Baron referred to and cited in his

argument upon the second question proposed to the Judges, which is

before stated.

[88] This amendment arose from an exception taken to the commission by

the committee for the Commons, which, as it then stood, did in their

opinion imply that the constituting a Lord High Steward was necessary.

Whereupon it was agreed by the whole committee of Lords and Commons,

that the commission should be recalled, and a new commission, according

to the said amendment, issue, to bear date after the order and

resolution of the 12th.--_Commons' Journal_ of the 15th of May.

[89] See, in the State Trials, the commissions in the cases of the Earl

of Oxford, Earl of Derwentwater, and others,--Lord Wintoun and Lord

Lovat.

[90] See the proceedings printed by order of the House of Lords, 4th

February, 1746.

[91] See the Journals of the Lords.

[92] 3 Geo. I. c. 19.

[93] See sect. 45 of the 3d Geo. I

[94] Lords' Journals.

REMARKS

IN

VINDICATION OF THE PRECEDING REPORT.

The preceding Report was ordered to be printed for the use of the

members of the House of Commons, and was soon afterwards reprinted

and published, in the shape of a pamphlet, by a London bookseller.

In the course of a debate which took place in the House of Lords, on

Thursday, the 22d of May, 1794, on the Treason and Sedition Bills,

Lord Thurlow took occasion to mention "a pamphlet which his Lordship

said was published by one Debrett, of Piccadilly, and which had that

day been put into his hands, reflecting highly upon the Judges and

many members of that House. This pamphlet was, he said, scandalous

and indecent, and such as he thought ought not to pass unnoticed. He

considered the vilifying and misrepresenting the conduct of judges

and magistrates, intrusted with the administration of justice and

the laws of the country, to be a crime of a very heinous nature, and

most destructive in its consequences, because it tended to lower

them in the opinion of those who ought to feel a proper reverence

and respect for their high and important stations; and that, when it

was stated to the ignorant or the wicked that their judges and

magistrates were ignorant and corrupt, it tended to lessen their

respect for and obedience to the laws themselves, by teaching them

to think ill of those who administered them." On the next day Mr.

Burke called the attention of the House of Commons to this matter,

in a speech to the following effect.

Mr. Speaker,--The license of the present times makes it very difficult

for us to talk upon certain subjects in which Parliamentary order is

involved. It is difficult to speak of them with regularity, or to be

silent with dignity and wisdom. All our proceedings have been constantly

published, according to the discretion and ability of individuals out of

doors, with impunity, almost ever since I came into Parliament. By

usage, the people have obtained something like a prescriptive right to

this abuse. I do not justify it; but the abuse is now grown so

inveterate that to punish it without previous notice would have an

appearance of hardship, if not injustice. The publications I allude to

are frequently erroneous as well as irregular, but they are not always

so; what they give as the reports and resolutions of this House have

sometimes been given correctly. And it has not been uncommon to attack

the proceedings of the House itself under color of attacking these

irregular publications. Notwithstanding, however, this colorable plea,

this House has in some instances proceeded to punish the persons who

have thus insulted it. You will here, too, remark, Sir, that, when a

complaint is made of a piratical edition of a work, the authenticity of

the original work is admitted, and whoever attacks the matter of the

work itself in these unauthorized publications does not attack it less

than if he had attacked it in an edition authorized by the writer.

I understand, Sir, that in a place which I greatly respect, and by a

person for whom I have likewise a great veneration, a pamphlet published

by a Mr. Debrett has been very heavily censured. That pamphlet, I hear,

(for I have not read it,) purports to be a Report made by one of your

Committees to this House. It has been censured, as I am told, by the

person and in the place I have mentioned, in very harsh and very

unqualified terms. It has been there said, (and so far very truly,) that

at all times, and particularly at this time, it is necessary, for the

preservation of order and the execution of the law, that the characters

and reputation of the Judges of the Courts in Westminster Hall should be

kept in the highest degree of respect and reverence; and that in this

pamphlet, described by the name of a libel, the characters and conduct

of those Judges upon a late occasion have been aspersed, as arising from

ignorance or corruption.

Sir, combining all the circumstances, I think it impossible not to

suppose that this speech does reflect upon a Report which, by an order

of the Committee on which I served, I had the honor of presenting to

this House. For anything improper in that Report I am responsible, as

well as the members of the Committee, to this House, and to this House

only. The matters contained in it, and the observations upon them, are

submitted to the wisdom of the House, that you may act upon both in the

time and manner that to your judgment may seem most expedient,--or that

you may not act upon them at all, if you should think that most

expedient for the public good. Your Committee has obeyed your orders; it

has done its duty in making that Report.

I am of opinion, with the eminent person by whom that Report is

censured, that it is necessary at this time very particularly that the

authority of Judges should be preserved and supported. This, however,

does not depend so much upon us as upon themselves. It is necessary to

preserve the dignity and respect of all the constitutional authorities.

This, too, depends in part upon ourselves. It is necessary to preserve

the respect due to the House of Lords: it is full as necessary to

preserve the respect due to the House of Commons, upon which (whatever

may be thought of us by some persons) the weight and force of all other

authorities within this kingdom essentially depend. If the power of the

House of Commons be degraded or enervated, no other can stand. We must

be true to ourselves. We ought to animadvert upon any of our members who

abuse the trust we place in them; we must support those who, without

regard to consequences, perform their duty.

With regard to the matter which I am now submitting to your

consideration, I must say for your Committee of Managers and for myself,

that the Report was deliberately made, and does not, as I conceive,

contain any very material error, nor any undue or indecent reflection

upon any person or persons whatever. It does not accuse the Judges of

ignorance or corruption. Whatever it says it does not say calumniously.

That kind of language belongs to persons whose eloquence entitles them

to a free use of epithets. The Report states that the Judges had given

their opinions secretly, contrary to the almost uninterrupted tenor of

Parliamentary usage on such occasions. It states that the mode of giving

the opinions was unprecedented, and contrary to the privileges of the

House of Commons. It states that the Committee did not know upon what

rules and principles the Judges had decided upon those cases, as they

neither heard their opinions delivered, nor have found them entered upon

the Journals of the House of Lords. It is very true that we were and are

extremely dissatisfied with those opinions, and the consequent

determinations of the Lords; and we do not think such a mode of

proceeding at all justified by the most numerous and the best

precedents. None of these sentiments is the Committee, as I conceive,

(and I feel as little as any of them,) disposed to retract, or to soften

in the smallest degree.

The Report speaks for itself. Whenever an occasion shall be regularly

given to maintain everything of substance in that paper, I shall be

ready to meet the proudest name for ability, learning, or rank that this

kingdom contains, upon that subject. Do I say this from any confidence

in myself? Far from it. It is from my confidence in our cause, and in

the ability, the learning, and the constitutional principles which this

House contains within itself, and which I hope it will ever

contain,--and in the assistance which it will not fail to afford to

those who with good intention do their best to maintain the essential

privileges of the House, the ancient law of Parliament, and the public

justice of this kingdom.

* * * * *

No reply or observation was made on the subject by any other member, nor

was any farther notice taken of it in the House of Lords.

SPEECHES

IN

THE IMPEACHMENT

OF

WARREN HASTINGS, ESQUIRE,

LATE GOVERNOR-GENERAL OF BENGAL.

SPEECH IN GENERAL REPLY.

MAY AND JUNE, 1794.

SPEECH

IN

GENERAL REPLY.

FIRST DAY: WEDNESDAY, MAY 28, 1794

My Lords,--This business, which has so long employed the public councils

of this kingdom, so long employed the greatest and most august of its

tribunals, now approaches to a close. The wreck and fragments of our

cause (which has been dashed to pieces upon rules by which your

Lordships have thought fit to regulate its progress) await your final

determination. Enough, however, of the matter is left to call for the

most exemplary punishment that any tribunal ever inflicted upon any

criminal. And yet, my Lords, the prisoner, by the plan of his defence,

demands not only an escape, but a triumph. It is not enough for him to

be acquitted: the Commons of Great Britain must be condemned; and your

Lordships must be the instruments of his glory and of our disgrace. This

is the issue upon which he has put this cause, and the issue upon which

we are obliged to take it now, and to provide for it hereafter.

My Lords, I confess that at this critical moment I feel myself oppressed

with an anxiety that no words can adequately express. The effect of all

our labors, the result of all our inquiries, is now to be ascertained.

You, my Lords, are now to determine, not only whether all these labors

have been vain and fruitless, but whether we have abused so long the

public patience of our country, and so long oppressed merit, instead of

avenging crime. I confess I tremble, when I consider that your judgment

is now going to be passed, not on the culprit at your bar, but upon the

House of Commons itself, and upon the public justice of this kingdom, as

represented in this great tribunal. It is not that culprit who is upon

trial; it is the House of Commons that is upon its trial, it is the

House of Lords that is upon its trial, it is the British nation that is

upon its trial before all other nations, before the present generation,

and before a long, long posterity.

My Lords, I should be ashamed, if at this moment I attempted to use any

sort of rhetorical blandishments whatever. Such artifices would neither

be suitable to the body that I represent, to the cause which I sustain,

or to my own individual disposition, upon such an occasion. My Lords, we

know very well what these fallacious blandishments too frequently are.

We know that they are used to captivate the benevolence of the court,

and to conciliate the affections of the tribunal rather to the person

than to the cause. We know that they are used to stifle the

remonstrances of conscience in the judge, and to reconcile it to the

violation of his duty. We likewise know that they are too often used in

great and important causes (and more particularly in causes like this)

to reconcile the prosecutor to the powerful factions of a protected

criminal, and to the injury of those who have suffered by his

crimes,--thus inducing all parties to separate in a kind of good humor,

as if they had nothing more than a verbal dispute to settle, or a slight

quarrel over a table to compromise. All this may now be done at the

expense of the persons whose cause we pretend to espouse. We may all

part, my Lords, with the most perfect complacency and entire good humor

towards one another, while nations, whole suffering nations, are left to

beat the empty air with cries of misery and anguish, and to cast forth

to an offended heaven the imprecations of disappointment and despair.

One of the counsel for the prisoner (I think it was one who has

comported himself in this cause with decency) has told your Lordships

that we have come here on account of _some doubts_ entertained in the

House of Commons concerning the conduct of the prisoner at your

bar,--that we shall be extremely delighted, when his defence and your

Lordships' judgment shall have set him free, and shall have discovered

to us our error,--that we shall then mutually congratulate one

another,--and that the Commons, and the Managers who represent them

here, will be the first to rejoice in so happy an event and so fortunate

a discovery.

Far, far from the Commons of Great Britain be all manner of real vice;

but ten thousand times further from them, as far as from pole to pole,

be the whole tribe of false, spurious, affected, counterfeit,

hypocritical virtues! These are the things which are ten times more at

war with real virtue, these are the things which are ten times more at

war with real duty, than any vice known by its name and distinguished by

its proper character. My Lords, far from us, I will add, be that false

and affected candor that is eternally in treaty with crime,--that half

virtue, which, like the ambiguous animal that flies about in the

twilight of a compromise between day and night, is to a just man's eye

an odious and disgusting thing! There is no middle point in which the

Commons of Great Britain can meet tyranny and oppression. No, we never

shall (nor can we conceive that we ever should) pass from this bar,

without indignation, without rage and despair, if the House of Commons

should, upon such a defence as has here been made against such a charge

as they have produced, be foiled, baffled, and defeated. No, my Lords,

we never could forget it; a long, lasting, deep, bitter memory of it

would sink into our minds.

My Lords, the Commons of Great Britain have no doubt upon this subject.

We came hither to call for justice, not to solve a problem; and if

justice be denied us, the accused is not acquitted, but the tribunal is

condemned. We know that this man is guilty of all the crimes which he

stands accused of by us. We have not come here to you, in the rash heat

of a day, with that fervor which sometimes prevails in popular

assemblies, and frequently misleads them. No: if we have been guilty of

error in this cause, it is a deliberate error, the fruit of long,

laborious inquiry,--an error founded on a procedure in Parliament before

we came here, the most minute, the most circumstantial, and the most

cautious that ever was instituted. Instead of coming, as we did in Lord

Strafford's case, and in some others, voting the impeachment and

bringing it up on the same day, this impeachment was voted from a

general sense prevailing in the House of Mr. Hastings's criminality

after an investigation begun in the year 1780, and which produced in

1782 a body of resolutions condemnatory of almost the whole of his

conduct. Those resolutions were formed by the Lord Advocate of

Scotland, and carried in our House by the unanimous consent of all

parties: I mean the then Lord Advocate of Scotland,--now one of his

Majesty's principal Secretaries of State, and at the head of this very

Indian department. Afterwards, when this defendant came home, in the

year 1785, we reïnstituted our inquiry. We instituted it, as your

Lordships and the world know, at his own request, made to us by his

agent, then a member of our House. We entered into it at large; we

deliberately moved for every paper which promised information on the

subject. These papers were not only produced on the part of the

prosecution, as is the case before grand juries, but the friends of the

prisoner produced every document which they could produce for his

justification. We called all the witnesses which could enlighten us in

the cause, and the friends of the prisoner likewise called every witness

that could possibly throw any light in his favor. After all these long

deliberations, we referred the whole to a committee. When it had gone

through that committee, and we thought it in a fit state to be digested

into these charges, we referred the matter to another committee; and the

result of that long examination and the labor of these committees is the

impeachment now at your bar.

If, therefore, we are defeated here, we cannot plead for ourselves that

we have done this from a sudden gust of passion, which sometimes

agitates and sometimes misleads the most grave popular assemblies. No:

it is either the fair result of twenty-two years' deliberation that we

bring before you, or what the prisoner says is just and true,--that

nothing but malice in the Commons of Great Britain could possibly

produce such an accusation as the fruit of such an inquiry. My Lords,

we admit this statement, we are at issue upon this point; and we are now

before your Lordships, who are to determine whether this man has abused

his power in India for fourteen years, or whether the Commons has abused

their power of inquiry, made a mock of their inquisitorial authority,

and turned it to purposes of private malice and revenge. We are not come

here to compromise matters; we do not admit [do admit?] that our fame,

our honors, nay, the very inquisitorial power of the House of Commons is

gone, if this man be not guilty.

My Lords, great and powerful as the House of Commons is, (and great and

powerful I hope it always will remain,) yet we cannot be insensible to

the effects produced by the introduction of forty millions of money into

this country from India. We know that the private fortunes which have

been made there pervade this kingdom so universally that there is not a

single parish in it unoccupied by the partisans of the defendant. We

should fear that the faction which he has thus formed by the oppression

of the people of India would be too strong for the House of Commons

itself, with all its power and reputation, did we not know that we have

brought before you a cause which nothing can resist.

* * * * *

I shall now, my Lords, proceed to state what has been already done in

this cause, and in what condition it now stands for your judgment.

An immense mass of criminality was digested by a committee of the House

of Commons; but although this mass had been taken from another mass

still greater, the House found it expedient to select twenty specific

charges, which they afterwards directed us, their Managers, to bring to

your Lordships' bar. Whether that which has been brought forward on

these occasions or that which was left behind be more highly criminal, I

for one, as a person most concerned in this inquiry, do assure, your

Lordships that it is impossible for me to determine.

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