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.