,
the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report
of the Judges concerning the mode of proceeding in
the courts below.
the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report
of the Judges concerning the mode of proceeding in
the courts below.
Edmund Burke
proper time
for business; that it-has been owing to one adjournment made in consequence of a complaint of the prisoner against one of your Managers, which took
up a space of ten days; that two days' adjournments
were made on account of the illness of certain of the
Managers; and, as far as your Committee can judge,
two sitting days were prevented by the sudden and
unexpected dereliction of the defence of the prisoner
at the close of the last session, your Managers not
having been then ready to produce their evidence in
reply, nor to make their observations on the evidence
produced by the prisoner's counsel, as they expected
the whole to have been gone through before they were
called on for their reply. In this session your Committee computes that the trial was delayed about a week or tenll days. The Lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.
With regard to the one hundred and eighteen days
employed in actual sitting, the distribution of the
business was in the manner following.
There were spent, -
? ? ? ? 6 IMPEACHMENT OF. WARREN HASTINGS.
Days.
In reading the articles of impeachment, and the
defendant's answer, and in debate on the mode
of proceeding. '. 3
Opening speeches, and summing up by the Managers. . . . . . . . . . . . . . 19
Documentary and oral evidence by the Managers 51
Opening speeches and summing up by the defendant's counsel, and defendant's addresses
to the Court. 22
Documentary and oral evidence on the part of the
defendant. 23
118
The other head, namely, that the trial has occupied one hundred and eighteen days, or nearly one
third of a year. This your Committee conceives to
have arisen from the following immediate causes.
First, the nature and extent of the matter to be
tried. Secondly, the general nature and quality of
the evidence produced: it was principally documentary evidence, contained in papers of great length,
the whole of which was often required to be read
when brought to prove a. single short fact. Under
the head of evidence must be taken into consideration the number and description of the witnesses examined and cross-examined. Thirdly, and. principally, the duration of the trial is to be attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons offered
as evidence on the part of the prosecution. These
objections amounted to sixty-two: they gave rise to
several debates, and to twelve references from the
Court to the Judges. On the part of the Mana
? ? ? ? REPORT ON THE LORDS' JOURNALS. 7
gers, the number of objections was small; the debates
upon them were short; there was not upon them
any reference to the Judges; and the Lords did not
even retire upon any of them to the Chamber of Parliament.
This last cause of the number of sitting days your
Committee considers as far more important than all
the rest. The questions upon the admissibility of
evidence, the manner in which these questions were
stated and were decided, the modes of proceeding, the
great uncertainty of the principle upon which evidence in that court is to be admitted or rejected,
all these appear to your Committee materially to affect the constitution of the House of Peers as a court
of judicature, as well as its powers, and'the purposes
it was intended to answer in the state. The Peers
have a valuable interest in' the conservation of their
own lawful privileges. But this interest is not confined to the Lords. The Commons ought to partake
in the -advantage of the judicial rights and privileges
of that high court. Courts are made for the suitors,
and not the suitors for: the court. The conservation
of all other parts of tile law, the whole indeed of
the rights and liberties of the subject, ultimately
depends upon the preservation of the Law of Parliament in:its original force and authority.
Your Committee had-reason to entertain apprehensions that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your
Committee felt these apprehensions strongly, they
thought it their duty to begin with humbly submitting facts and observations on the proceedings concerning evidence to the consideration of this House,
? ? ? ? 8 IMPEACHMENT OF WARREN HASTINGS.
before they proceed to state the other matters which
come within the scope of the directions which they
have received.
To enable your Committee the better to execute
the task imposed upon them in carrying on the impeachment of this House, and to find some principle
on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and
rules of proceeding, as well as into the rights and
powers of the House of Commons in their impeachments.
RELATION OF THE JUDGES, ETC. , TO THE COURT OF
PARLIAMENT.
UPON examining into -the course of proceeding in
the House of Lords, and into the relation which
exists between the Peers, on the one hand, and their
attendants and assistants, the Judges of the Realm,
Barons of the Exchequer of the Coif, the King's
learned counsel, and the Civilians Masters of the
Chancery, on the other, it appears to your Committee
that these Judges, and other persons learned in the
Common and Civil Laws, are no integrant and necessary part of that court. Their writs of summons are
essentially different; and it does not appear that they
or any of them have, or of right ought to have, a
deliberative voice, either actually or virtually, in the
judgments given in the High. Court of Parliament.
Their attendance in that court is solely ministerial;
and their answers to questions put to them are not
to be regarded as declaratory of the Law of Parliament, but are- merely consultory responses, in order
? ? ? ? REPORT ON THE LORDS' JOURNALS. 9
to furnish such matter (to be submitted to the judgment of the Peers) as may be useful in reasoning by analogy, so far as the nature of the rules in the respective courts of the learned persons consulted shall appear to the House to be applicable to the nature
and circumstances of the case before them, and no
otherwise. *
JURISDICTION OF THE LORDS.
YOUR Committee finds, that, in all impeachments
of the Commons of Great Britain for high crimes:
and misdemeanors before the Peers in the High
Court of Parliament, the Peers are not triers or
jurors only, but, by the ancient laws and constitution of this kingdom, known by constant usage,
are judges both of law and fact; and we conceive
that the Lords are bound not to act in such a:
manner as to give rise to an opinion that they
have virtually submitted to a division of their legal
powers, or that, putting themselves into the situation
of mere triers or jurors, they may suffer the evidence
in the cause to be produced or not produced before
them, according to the discretion of the judges of
the inferior courts.
LAW OF PARLIAMENT.
YOUR Committee finds that the Lords, in matter
of appeal or impeachment in Parliament, are not of
right obliged to proceed according to the course or
rules of the Roman Civil Law, or by those of the law
or usage of ally of the inferior courts in Westminster
Hall, but by the law and usage of Parliament. And
* 4 Inst. p. 4.
? ? ? ? 10 IMPEACHMENT OF WARREN HASTINGS.
your Committee finds that this has been declared in
the most clear and explicit manner by the House of
Lords, in the year of our Lord 1387 and 1388, in the
11th year of King Richard II.
Upon all appeal in Parliament then depending
against certain great persons, peers and commoners,
the said appeal was referred to the Justices, and other
learned persons of the law. "At which time," it is
said in the record, that " the Justices and Serjeants,
and others the learned in the Law Civil, were charged,
by order of the King our sovereign aforesaid, to give
their faithful counsel to the Lords of the Parliament
concerning the due proceedings in the cause of the
appeal aforesaid. The which Justices, Serjeants, and
the learned in the law of the kingdom, and also the
learned in the Law Civil, have taken the same into
deliberation, and have answered to the said Lords of
Parliament, that they had seen and well considered
the tenor of the said appeal; and they say that the
same appeal was neither made nor pleaded according
to the order which the one law or the other requires.
Upon which the said Lords of Parliament have taken
the same into deliberation and consultation, and by
the assent of our said Lord the King, and of their
common agreement, it was declared, that, in so high
a crime as that which is charged in this appeal, which
touches the person of our lord the King, and the state
of the whole kingdom, perpetrated by persons who
are peers of the kingdom, along with others, the
cause shall not be tried in any other place but. in
Parliament, nor by any:other law than the law and
course of Parliament; and that it belongeth to the
Lords of Parliament, and to their franchise and liberty by the ancient custom of the Parliament, to be
? ? ? ? REPORT ON:THE LORDS' JOURNALS. 11
judges in such cases, and in these cases to judge by
the assent of the King; and thus it shall be done in
this; case, by the award of Parliament: because the
realm of England has not been heretofore, nor is it
the intention of our said lord the King and the Lords
of Parliament that it ever should be governed by the
Law Civil; and also, it is their resolution not to rule
or govern so high a cause as this. appeal is, which
cannot be tried anywhere but in: Parliament, as hath
been said before, by the course, process, and order
used in any courts or place inferior in the same kingdom; which courts and places are not more than the executors of the ancient laws and customs of the
kingdom, and of the ordinances and establishments of
Parliament. It was determined by the said Lords of
Parliament, by the assent of our said lord the King,
that this appeal was made and pleaded well and sufficiently, and that the process upon it is good and effectual, according to the law and course of Parliament; and for such they decree and adjudge it. " * And your:. Committee finds, that toward the close
of the same Parliament the same right was again
claimed and admitted as the special privilege of the
Peers, in the:following manner: "IIn this Parliament, all the Lords then present, Spiritual as well as Temporal, claimed as their franchise, that the weighty
matters moved in this Parliament, and which shall be
moved in other Parliaments in future times, touching
the peers of the land, shall be managed, adjudged,
and discussed by the course of Parliament, and in no
sort by the Law Civil, or by the common law of the
land, used in the other lower courts of the kingdom;
which claim, liberty, and franchise the King gra* Rolls Parl. Vol. III, p. 236.
? ? ? ? 12 IMPEACHMENT OF WARREN HASTINGS.
ciously allowed and granted to them in full Parliamenlt. " *
Your Committee finds that the Commons, having at that time considered the appeal above mentioned, approved the proceedings in it, and, as far as
in them lay, added the sanction of their accusation
against the persons who were the objects of the appeal.
They also, immediately afterwards, impeached all the
Judges of the Common Pleas, the Chief Baron of the
Exchequer, and other learned and eminent persons,
both peers and commoners; -upon the conclusion of
which impeachments it was that the second claim was
entered. In all the transactions aforesaid the Commons were acting parties; yet neither then nor ever
since have they made any objection or protestation,
that the rule laid down by the Lords in the beginning of the session of 1388 ought not to be applied
to the impeachments of commoners as well as peers.
In many cases they have claimed the benefit of this
rule; and in all cases they have acted, and the Peers
have determined, upon the same general principles.
The Peers have always supported the same franchises;
nor are there any precedents upon the records of Parliament subverting either the general rule or the particular privilege, so far as the same relates either to the course of proceeding or to the rule of law by
which the Lords are to judge.
Your Committee observes also, that, in the commissions to the several Lords High Stewards who have
been appointed on the trials of peers impeached by
the Commons, the proceedings are directed to be had
according to the law and custom of the kingdom,
and the custom of Parliament: which words are not
* Rol. Parl. Vol. III. p. 244, ~ 7.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 13
to be found in the commissions for trying upon indictments.
" As every court of justice," says Lord Coke, " hath
laws and customs for its direction, some by-the Common Law, some by the Civil and Canon Law, some
by peculiar laws and customs, &c. , so the High Court
of Parliament suis propriis legibus et consuetudinibus
subsistit. It is by the Lex et Consuetudo Parliamenti,
that all weighty matters in any Parliament moved,
concerning the peers of the realm, or Commons in
Parliament assembled, ought to be determined, adjudged, and discussed, by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts. " And after founding himself on this very precedent of
the 11th of Richard II. , he adds, "'Tis is the reason
that Judges ought not to give any opinion of a matter of
Parliament, because it is not to be decided by the common laws, but secundum Legern et Consuetudinemm Parliamenti: and so the Judges in divers Parliaments have
confessed. " *
RULE OF PLEADING.
YOUR Committee do not find that any rules of
pleading, as observed in the inferior courts, have ever obtained in the proceedings of the High Court of
Parliament, in a cause or matter in which the whole
procedure has been within their original jurisdiction.
Nor does your Committee find that any demurrer or
exception, as of false or erroneous pleading, hath been
ever admitted to any impeachment in Parliament, as'iot coming within the form of the pleading; and although a reservation or protest is made by the defend*4 Inst. 'p. 15.
? ? ? ? 14 IMPEACHMENT OF WARREN HASTINGS.
ant (matter of form, as we conceive) " to the generality, uncertainty, and insufficiency of the articles of
impeachment," yet no objections have in fact been
ever made in any part of the record; and when verbally they have been made, (until this trial,) they
have constantly been overruled.
The trial of Lord Strafford * is one of the most
important eras inl the history of Parliamentary judicature. In that trial, and in the dispositions made
preparatory to it, the process on impeachments was,
on great consideration, research, and selection of precedents, brought very nearly to the form which it retains at this day:; and great and important parts of'Parliamentary Law were then laid down. The Commons at that time made new charges or amended the old as they saw occasion. Upon anl application
from the Commons to the Lords, that the examinations taken by their Lordships, at their request, might
be delivered to them, for the purpose of a more exact
specification of the charge they had made, on delivering the message of the Commons, Mr. Pym, amongst
other things, said, as it is entered in the Lords' Journals, "According to the clause of reservation in the
conclusion of their charge, they [the Commons] will
add to the charges, not to the matter in respect of
comprehension, extent, or kind, but only to reduce
them to more particularities, that the Earl of Strafford might answer with the more clearness and expedition: not that they are bound by this way of
SPECIAL charge; and therefore they have taken care
in their House, upon protestation, that this shall be no
prejudice to bind them from proceeding in GENERAL
in other cases, and that they are not to be ruled by pro* 16 Ch. 1. 1640.
? ? ? ? REPORT ON THE LORDS' JOURNALS. ' 15
ceedings in other courts, which protestation they have
made for the preservation of the power of Parliament;
and they desire that the like care may be had in your
Lordships' House. " e This protestation is. entered on
the Lords' Journals. Thus careful were the Commons that no exactness used by them for a temporary accommodation should become an example derogatory
to the larger rights of Parliamentary process.
At length the question of their being obliged to
conform to any of the rules below came to a formal
judgment. In the trial of Dr. Sachlleverell, March
10th, 1709, the Lord Nottingham " desired their
Lordships' opinion, whether he might propose a
question to the Judges here [in Westminster Hall]. .
Thereupon the Lords, being moved to adjourn, adjourned to the House of Lords, and on debate," as appears by a note, "it was agreed that the question
should be proposed in Westminster Hall. "t Accordingly, when the Lords returned the same day into the Hall, the question was put by Lord Nottingham, and
stated to the Judges by the Lord Chancellor: " Whetlher, by the law of England, and constant practice in all prosecutions by indictment and information for crimes
and misdemeanors by writing or speaking, the particular words supposed to be written or spoken must not be expressly specified in the indictment or information? " On this question the Judges, seriatim, and
in open court, delivered their opinion: the substance
of which was, "That, by the laws of England, and
the constant practice in Westminster Hall, the words
ought to be expressly specified in the indictment or
information. " Then the Lords adjourned, and did
* Lords' Journals, Vol. 'IV. p. 133. ,t Id. Vol. XIX. p. 98.
? ? ? ? 16 IMPEACHMENT OF WARREN HASTINGS.
not come into the Hall until the 20th. In the intermediate time they came to resolutions on the matter
of the question put to the Judges. Dr. Sacheverell,
being found guilty, moved in arrest of judgment upon two points. The first, which he grounded on the
opinion of the Judges, and which your Committee
thinks most to the present purpose, was, "That no
entire clause, or sentence, or expression, in either of
his sermons or dedications, is particularly set forth in
his impeachment, which he has'already heard the
Judges declare to be necessary in all cases of indictments or informations. "* On this head of objection,
the Lord Chancellor, on the 23d of March, agreeably to the resolutions of the Lords of the 14th and
16th of March, acquainted Dr. Sacheverell, "That,
on occasion of the question before put to the Judges
in Westminster Hxall, and their answer thereto, their
Lordships had fully debated and considered of that
matter, and had come to the following resolution:'That this House will proceed to the determination
of the impeachment of Dr. Henry Sacheverell, according to the law of the land, and the law and usage
of Parliament. ' And afterwards to this resolution:'That, by the law and usage of Parliament in prosecutions for high crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified
in such impeachment. ' So that, in their Lordships'
opinion, the law and usage of the High Court of
Parliament being a part of the law of the land, and
that usage not requiring that words should be exactly specified ill impeachments, the answer of the
Judges, which related only to the course of indict* Lords' Journals, Vol. XIX. p. 116.
? ? ? ? REPORT ON THE LORDS' JOURNALS, 17
ments a-nd informations, does not in the least affect
your case. "
On this solemn judgment concerning the law and
usage of Parliament, it is to be remarked: First, that
the impeachment itself is not to be presumed inartificially drawn. It appears to have been the work of
some of the greatest lawyers of the time, who were
perfectly versed in the manner of pleading in the
courts below, and would naturally have imitated their
course, if they had' not been justly fearful of setting
an example which might hereafter subject the plainness and simplicity of a Parliamentary proceeding to
the technical subtilties of the inferior courts. Secondly, that the question put to the Judges, and their
answer, were strictly confined to the law and practice
below; and that nothing in either had a tendency
to their delivering an opinion concerning Parliament,
its laws, its usages, its course of proceeding, or its
powers. Thirdly, that the motion in arrest of judgment, grounded on the opinion of the Judges, was
made only by Dr. Sacheverell himself, and not by his
counsel, men of great skill and learning, who, if they
thought the objections had any weight, would undoubtedly have made and argued them.
Here, as in the case of the 11th King Richard II.
,
the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report
of the Judges concerning the mode of proceeding in
the courts below.
Your Committee finds that a protest, with reasons,
* Lords' Journals, Vol. XIX. p. 121.
VOL. XI. 2
? ? ? ? 18- IMPEACHMENT OF WARREN HASTINGS.
at large,' was entered by several lords against this determination of their court. * It is always an advantage to those who protest, that their reasons appear upon record; whilst the reasons of the majority, who
determine the question, do not appear. This would
be a disadvantage of such importance as greatly to
impair, if not totally to destroy, the effect of precedent
as authority, if the reasons which prevailed were not
justly presumed to be more valid than those which
have been obliged to give way: the former having
governed the final and conclusive decision of a competent court. But your Committee, combining the
fact of this decision with the early decision just quoted, and with the total absence of any precedent of
an objection, before that time or since, allowed to
pleading, or what has ally relation to the rules and
principles of pleading, as used in Westminster Hall,
has no doubt that the House of Lords was governed
in the 9th of Anne by the very same principles which
it had solemnly declared in the 11th of Richard II.
But besides the presumption in favor of the reasons
which must be supposed to have produced this solemn
judgment of the Peers, contrary to the practice of the
courts below, as declared by all the Judges, it is probable that the Lords were unwilling to take a step
which might admit that anything in that practice
should be received as their rule. It must be observed, however, that the reasons against the article
alleged in the protest were by no means solely bottomed in the practice of the courts below, as if the
main reliance of the protesters was upon that usage.
The protesting minority maintained that it was not
agreeable to several precedents in Parliament; of which
* Lords' Journals, Vol. XIX. p. 106.
? ? ? ? REPORT ON THE. LORDS' JOURNALS. 19
they cited many in favor of their opinion-. . It appears
by the Journals, that the clerks were ordered to
search for precedents, and a committee of peers was
appointed to inspect the said precedents, and to report
upon them, - and that they did inspect and report
accordingly. But the report is not entered on the
Journals. It is, however, to be presumed that the
greater number and the better precedents supported
the judgment. Allowing, however, their utmost force
to the precedents there cited, they could serve only
to prove, that, in the case of words, (to which alone,
and not the case of a written libel, the precedents
extended,) such a special averment, according to the
tenor of,the words, had been used; but not that it
was necessary, or that ever any plea had been rejected upon such an objection. As to. the course of Parliament, resorted to for authority in this part of
the protest, the argument seems rather to affirm than
Ato deny the general proposition, that its own course,
and not that of the inferior courts, had been the rule
and. law of Parliament.
As to the objection, taken in the protest, drawn
from natural right, the Lords knew, and it appears
in the course of the proceeding, that the whole of
the libel had been read at length, as appears from
p. 655 to p. 666. * So that Dr. Sacheverell had substantially the same benefit of anything which could be alleged in the extenuation or exculpation as if his
libellous sermons had been entered verbatim upon the
recorded impeachment. It was adjudged sufficient
to state the crime generally in the impeachment.
The libels were given in evidence; and it was not
then thought of, that nothing should be given in
* State Trials, Vol. V,
? ? ? ? 20 IMPEACHMENT OF WARREN HASTINGS.
evidence which was not specially charged in the impeachment.
But whatever their reasons were, (great and grave
they were, no doubt,) such as your Committee has
stated it is the. judgment of the Peers on the Law
of Parliament, as a part of the law of the land.
It is the more forcible as concurring with the judgment in the 11th of Richard II. , and with the total
silence of the Rolls and Journals concerning any
objection to pleading ever being suffered to vitiate
an impeachment, or to prevent evidence being given
upon it, on account of its generality, or any other
failure.
Your Committee do not think it probable, that,
-even before this adjudication, the rules of pleading
below could ever have been adopted in a Parliamentary proceeding, when it is considered that the several statutes of Jeofails, not less than twelve in number,* have been made for the correction of an overstrictness in pleading, to the prejudice of substantial justice: yet in no one of these is to be discovered
the least mention of any proceeding in Parliament.
There is no doubt that the legislature would have
applied its remedy to that grievance in Parliamentary proceedings, if it had found those proceedings
embarrassed with what Lord Mansfield, from the
bench, and speaking of the matter of these statutes,
very justly calls " disgraceful subtilties. "
What is still more strong to the point, your Committee finds that in the 7th of William III. an act
was made for the regulating of trials for treason and
misprision of treason, containing several regulations
for reformation of proceedings at law, both as to
* Statutes at Large, from 12 Ed. I. to 16 and 17 Ch, II.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 21
matters of form and substance, as well as relative
to evidence. It is an act thought most essential
to the liberty of the subject; yet in this high and
critical matter, so deeply affecting the lives, properties, honors, and even the inheritable blood of the
subject, the legislature was so tender of the high pow-'
ers of this high court, deemed so necessary for the
attainment of the great objects of its justice, so fearful of enervating any of its means or circumscribing any of its capacities, even by rules and restraints the most necessary for the inferior courts, that they
guarded against it by an express proviso, " that neither this act, nor anything therein contained, shall
any ways extend to any impeachment or other proceedings in Parliament, in any kind whatsoever. " *
CONDUCT OF THE COMMONS IN PLEADING.
THIS point being thus solemnly adjudged in the
case of Dr. Sacheverell, and the principles of the
judgment being in agreement with the whole course
of Parliamentary proceedings, the Managers for this
Hiouse have ever since considered it as an indispensable duty to assert the same principle, in all its
latitude, upon all occasions on which it could come
in question, -- and to assert it with an energy, zeal,
and earnestness proportioned to the magnitude and
importance of the interest of the Commons of Great
Britain in the religious observation of the rule, that
the Law of Parliament, and the Law of Parliament only, should prevail in the trial of their impeachments.
In the year 1715 ( 1 Geo. I. ) the Commons thought
* 7 W. III. ch. 3, sect. 12.
? ? ? ? 22 IMPEACHMENT OF WARREN HASTINGS.
proper: to impeach of high treason the lords who had
entered into the rebellion of that period. This was
about six years after the decision in the case of
Sacheverell. On the trial of one of these lords, (the
Lord Wintoun,*) after verdict, the prisoner moved
in arrest of judgment, and excepted against the
impeachment for error, on account of the treason
therein laid " not being described with sufficient certainty, - the day on which the treason was committed
not having been alleged. " His counsel was heard
to this point. They contended, " that the forfeitures
in cases of treason are very great, and therefore they
humbly conceived that the accusation ought to contain all the certainty it is capable of, that the prisoner may not by general allegations be rendered incapable to defend. himself in a case which may prove fatal to him: that they would not trouble their Lordships with citing authorities; for they believed there
is not one gentleman of: the long robe but will agree
that an indictment for any capital offence to be erroneous, if the offence be not alleged to be committed
on. a certain day: that'this impeachment set: forth
only that in or about the months of September, October, or November, 1715, the offence' charged in
the impeachment had been committed. " The counsel argued, " that a proceeding by impeachment is a
proceeding at the Common Law, for Lex Parliarzentaria is a part of Common Law, and they submitted
whether there is not the same certainty required
in one method of proceeding at Common Law as in
another. "'
The matter was argued elaborately and learnedly,
not. only on the general principles of the proceedings
* State Trials, Vol. VI. p. 17.
? ? ? ? REPORT -ON THE LORDS': JOURNALS. 23
below, but on the inconvenience and possible hardships
attending this uncertainty. They quoted Sacheverell's case, in whose impeachment "the precise days
were laid when the Doctor preached each of these two
sermons; and that by a like reason a certain day
ought to be laid in the impeachment when this treason was committed; alid that the authority of Dr.
Sacheverell's case seemed so much stronger than the
case in question as the crime of treason is higher than
that of a misdemeanor. "
Here the Managers for the Commons brought the
point a second time to an issue, and that on the
highest of capital cases: an issue, the event of which
was to determine forever whether their impeachments
were to be regulated by the law as understood and observed in the inferior courts. Upon the usage below
there was no doubt; the indictment would unquestionably have been quashed. But the Managers for
the Commons stood forth upon this occasion with a determined resolution, and no less than four of them
seriatim rejected the doctrine contended for by Lord
Wintoun's counsel. They were all eminent members
of Parliament, and three of them great and eminent
lawyers, namely, the then Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,-" Those learned gentlemen
[ Lord Wintoun's counsel] seem to forget in what court
they are. They have taken up so much of your Lordships' time in quoting of authorities, and using arguments to show your Lordships what would quash an indictment in the courts below, that they seemed to forget they are now. in a Court of Parliament, and on an
impeachment of the Commons of Great Britain. For,
should the Commons admit all that they -have offered,
? ? ? ? 24 IMPEACHMENT OF WARREN HASTINGS.
it will not follow that the impeachment of the Commons is insufficient; and I must observe to your
Lordships, that neither of the learned gentlemen
have offered to produce one instance relative to an
impeachment. I mean to show that the sufficiency
of an impeachment was never called in question for
the generality of the charge, or that any instance of
that nature was offered at before. The Commons
don't conceive, that, if this exception would quash
an indictment, it would therefore make the impeachment insufficient. I hope it never will be allowed
here as a reason, that what quashes an indictment in
the courts below will make insufficient an impeachment brought by the Commons of Great Britain. "
The Attorney-General supported Mr. Walpole in
affirmance of this principle. He said, --' "I would
follow the steps of the learned gentleman who spoke
before me, and I think he has given a good answer
to these objections. I would take notice that we are
upon an impeachment, not upon an indictment. The
courts below have set forms to themselves, which have
prevailed for a long course of time, and thereby are
become the forms by which those courts are to govern
themselves; but it never was thought that the forms
of those courts had any influence on the proceedings
of Parliament. In Richard II. 's time, it is said in the
records of Parliament, that proceedings in Parliament
are not to be governed by the forms of Westminster
Hall. We are in the case of an impeachment, and in
the Court of Parliament. Your Lordships have already given judgment against six upon this impeachnacnt, and it is warranted by the precedents in Parliament; therefore we insist that the articles are good in'substance. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 25
Mr. Cowper. --"They [the counsel] cannot but
know that the usages of Parliaments are part of the
laws of the land, although they differ in many instances from the Common Law, as practised in the inferior courts, in point of form. My Lords, if the Commons,
in preparing articles of impeachment, should govern
themselves by precedents of indictments, in my humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament. It
is well known that the form of an impeachment has
very little resemblance to that of an indictment; and
I believe the Commons will endeavor to preserve the
difference, by adhering to their own precedents. "
Sir William Thomson. -" We must refer to the
forms and proceedings in the Court of Parliament,
and which must be owned to be part of the law of the
land. It has been mentioned already to your Lordships, that' the precedents in impeachments are not so nice and precise in form as in the inferior courts; and
we presume your Lordships will be governed by the
forms of your own court, (especially forms that are
not essential to justice,) as the courts below are by
theirs: which -courts differ one from the other in many respects as to their forms of proceedings, and the practice of each court is esteemed as the law of that
court. "
The Attorney-General in reply maintained his first
doctrine. "There is no uncertainty in it that can
be to the prejudice of the prisoner: we insist, it is according to the forms of Parliament: he has pleaded
to it, and your Lordships have found him guilty. "
The opinions of the Judges were taken in the House
of Lords, on the 19th of March, 1715, upon two questions which had been argued in arrest of judgment,
? ? ? ? 26 IMPEACHMENT OF WARREN HASTINGS.
grounded: chiefly on the practice of the courts below.
To the first the Judges answered, -" It is necessary
that there be a certain day laid in such indictments,
on which the fact is alleged to be committed; and that
alleging in such indictments that the fact was committed at or about a certain day would not be sufficient. "
To the second they answered, " that, although a day
certain, when the fact is supposed to be done, be alleged in such indictments, yet it is not necessary upon
the trial to prove the fact to be committed upon that
day; but it is sufficient, if proved to be done on any
other day before the indictment found. "
Then* it was " agreed by the House, and ordered,
that the Lord High Steward be directed to acquaint
the prisoner at the bar in Westminster Hall,'that
the Lords have considered of the matters moved in
arrest of judgment, and are of opinion that they are
not sufficient to arrest the same, but that the impeachment is sufficiently certain in point of time
according to the form of impeachments in Parliament. "' "
On this final adjudication, (given after solemn argument, and after taking the opinion of the Judges,)
in affirmance of the Law of Parliament against the
undisputed usage of the courts below, your Committee has to remark, -- 1st, The preference of the
custom of Parliament to the usage below. By the
very latitude of the charge, the Parliamentary accusation gives the prisoner fair notice to prepare himself upon all points: whereas there seenms something insnaring in the proceedings upon indictment, which,
fixing the specification of a day certain for the treason or felony as absolutely necessary in the charge,
* Lords' Journals, Vol. XX. p. 316.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 27
gives i otice for preparation only on that day, whilst
the prosecutor has the whole range of time antecedent to the indictment to allege and give evidence
of facts against the prisoner. It has been usual,
particularly in later indictments, to add, "at several other times"; but the strictness of naming one
day is still necessary, and the want of the larger
words would not quash the indictment. 2dly, A comparison of the extreme rigor and exactness required
in the more formal part of the proceeding (the indictment) with the extreme laxity used in the substantial part (that is to say, the evidence received
to prove the fact) fully demonstrates that the partisans of those forms would put shackles on the High
Court of Parliament, with which they are not willing,
or find it wholly impracticable, to bind themselves.
3dly, That the latitude of departure fiom the letter
of the indictment (which holds in other matters besides this) is in appearance much more contrary to
natural justice than anything which has been objected against the evidence offered by your Managers, under a pretence that it exceeded the limits of pleading. For, in the case of indictments below, it must' be
admitted that the prisoner may be unprovided with
proof of an alibi, and other material means of defence, or may find some matters unlooked-for produced against him, by witnesses utterly unknown to
him: whereas nothing was offered to be given in
evidence, under any of the articles of this impeachment, except such as the prisoner must have. had
perfect knowledge of; the whole consisting of matters
sent over by himself to the Court of Directors, and
authenticated under his own hand. No substantial
injustice or hardship of any kind could arise from
? ? ? ? 28 IMPEACHMENT OF WARREN HASTINGS.
our evidence under our pleading: whereas in theirs
very great and serious inconveniencies might happen.
Your Committee has further to observe, that, in
the case of Lord Wintoun, as in the case of Dr.
Sacheverell, the Commons had in their Managers
persons abundantly practised in the law, as used in
the inferior jurisdictions, who could easily have followed the precedents of indictments, if they had not purposely, and for the best reasons, avoided such
precedents.
A great writer on the criminal law, Justice Foster,
in one of his Discourses,* fully recognizes those principles for which your Managers have contended, and which have to this time been uniformly observed in
Parliament. In a very elaborate reasoning on the
case of a trial in Parliament, (the trial of those who
had murdered Edward II. ,) he observes thus: - -" It
is well known, that, in Parliamentary proceedings of
this kind; it is, and ever was, sufficient that matters
appear with proper. light and certainty to a common
understanding, without that minute exactness which
is required in criminal proceedings in Westminster
Hall. In these cases the rule has always been,
Loquendum ut vulgus. " And in a note he says, -" In
the proceeding against Mortimer, in this Parliament,
so little regard was had to the forms used in legal proceedings, that he who had been frequently summoned to Parliament as a baron, and had lately been created
Earl of March, is styled through the whole record
merely Roger de Mortimer. "
The departure from the common forms in the first
case alluded to by Foster (viz. , the trial of Berkeley,
* Discourse IV. p. 389.
? ? ? ? REPORT ON THE LORDS' JOURNiLS. 29
Maltravers, &c. , for treason, in the murder of Edward II. *) might be more plausibly attacked, because
they were tried, though in Parliament, by a jury of
freeholders: which circumstance might have given
occasion to justify a nearer approach to the forms
of indictments below. But no such forms were observed, nor in the opinion of this able judge ought
they to have been observed.
PUBLICITY OF THE JUDGES' OPINIONS.
IT appears to your Committee, that, from the 30th
year of King Charles II. until the trial of Warren
Hastings, Esquire, in all trials in Parliament, as
well upon impeachments of the Commons as on indictments brought up by Certiorari, when any mat*ter of law hath been agitated at the bar, or in the course of trial hath been stated by any lord in the
court, it hath been the prevalent custom to state
the same in open court. Your Committee has been
able to find, since that period, no more than one precedent (and that a precedent rather in form than in
substance) of the opinions of the Judges being taken
privately, except when the case on both sides has been
closed, and the Lords have retired to consider of
their verdict or of their judgment thereon.
for business; that it-has been owing to one adjournment made in consequence of a complaint of the prisoner against one of your Managers, which took
up a space of ten days; that two days' adjournments
were made on account of the illness of certain of the
Managers; and, as far as your Committee can judge,
two sitting days were prevented by the sudden and
unexpected dereliction of the defence of the prisoner
at the close of the last session, your Managers not
having been then ready to produce their evidence in
reply, nor to make their observations on the evidence
produced by the prisoner's counsel, as they expected
the whole to have been gone through before they were
called on for their reply. In this session your Committee computes that the trial was delayed about a week or tenll days. The Lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.
With regard to the one hundred and eighteen days
employed in actual sitting, the distribution of the
business was in the manner following.
There were spent, -
? ? ? ? 6 IMPEACHMENT OF. WARREN HASTINGS.
Days.
In reading the articles of impeachment, and the
defendant's answer, and in debate on the mode
of proceeding. '. 3
Opening speeches, and summing up by the Managers. . . . . . . . . . . . . . 19
Documentary and oral evidence by the Managers 51
Opening speeches and summing up by the defendant's counsel, and defendant's addresses
to the Court. 22
Documentary and oral evidence on the part of the
defendant. 23
118
The other head, namely, that the trial has occupied one hundred and eighteen days, or nearly one
third of a year. This your Committee conceives to
have arisen from the following immediate causes.
First, the nature and extent of the matter to be
tried. Secondly, the general nature and quality of
the evidence produced: it was principally documentary evidence, contained in papers of great length,
the whole of which was often required to be read
when brought to prove a. single short fact. Under
the head of evidence must be taken into consideration the number and description of the witnesses examined and cross-examined. Thirdly, and. principally, the duration of the trial is to be attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons offered
as evidence on the part of the prosecution. These
objections amounted to sixty-two: they gave rise to
several debates, and to twelve references from the
Court to the Judges. On the part of the Mana
? ? ? ? REPORT ON THE LORDS' JOURNALS. 7
gers, the number of objections was small; the debates
upon them were short; there was not upon them
any reference to the Judges; and the Lords did not
even retire upon any of them to the Chamber of Parliament.
This last cause of the number of sitting days your
Committee considers as far more important than all
the rest. The questions upon the admissibility of
evidence, the manner in which these questions were
stated and were decided, the modes of proceeding, the
great uncertainty of the principle upon which evidence in that court is to be admitted or rejected,
all these appear to your Committee materially to affect the constitution of the House of Peers as a court
of judicature, as well as its powers, and'the purposes
it was intended to answer in the state. The Peers
have a valuable interest in' the conservation of their
own lawful privileges. But this interest is not confined to the Lords. The Commons ought to partake
in the -advantage of the judicial rights and privileges
of that high court. Courts are made for the suitors,
and not the suitors for: the court. The conservation
of all other parts of tile law, the whole indeed of
the rights and liberties of the subject, ultimately
depends upon the preservation of the Law of Parliament in:its original force and authority.
Your Committee had-reason to entertain apprehensions that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your
Committee felt these apprehensions strongly, they
thought it their duty to begin with humbly submitting facts and observations on the proceedings concerning evidence to the consideration of this House,
? ? ? ? 8 IMPEACHMENT OF WARREN HASTINGS.
before they proceed to state the other matters which
come within the scope of the directions which they
have received.
To enable your Committee the better to execute
the task imposed upon them in carrying on the impeachment of this House, and to find some principle
on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and
rules of proceeding, as well as into the rights and
powers of the House of Commons in their impeachments.
RELATION OF THE JUDGES, ETC. , TO THE COURT OF
PARLIAMENT.
UPON examining into -the course of proceeding in
the House of Lords, and into the relation which
exists between the Peers, on the one hand, and their
attendants and assistants, the Judges of the Realm,
Barons of the Exchequer of the Coif, the King's
learned counsel, and the Civilians Masters of the
Chancery, on the other, it appears to your Committee
that these Judges, and other persons learned in the
Common and Civil Laws, are no integrant and necessary part of that court. Their writs of summons are
essentially different; and it does not appear that they
or any of them have, or of right ought to have, a
deliberative voice, either actually or virtually, in the
judgments given in the High. Court of Parliament.
Their attendance in that court is solely ministerial;
and their answers to questions put to them are not
to be regarded as declaratory of the Law of Parliament, but are- merely consultory responses, in order
? ? ? ? REPORT ON THE LORDS' JOURNALS. 9
to furnish such matter (to be submitted to the judgment of the Peers) as may be useful in reasoning by analogy, so far as the nature of the rules in the respective courts of the learned persons consulted shall appear to the House to be applicable to the nature
and circumstances of the case before them, and no
otherwise. *
JURISDICTION OF THE LORDS.
YOUR Committee finds, that, in all impeachments
of the Commons of Great Britain for high crimes:
and misdemeanors before the Peers in the High
Court of Parliament, the Peers are not triers or
jurors only, but, by the ancient laws and constitution of this kingdom, known by constant usage,
are judges both of law and fact; and we conceive
that the Lords are bound not to act in such a:
manner as to give rise to an opinion that they
have virtually submitted to a division of their legal
powers, or that, putting themselves into the situation
of mere triers or jurors, they may suffer the evidence
in the cause to be produced or not produced before
them, according to the discretion of the judges of
the inferior courts.
LAW OF PARLIAMENT.
YOUR Committee finds that the Lords, in matter
of appeal or impeachment in Parliament, are not of
right obliged to proceed according to the course or
rules of the Roman Civil Law, or by those of the law
or usage of ally of the inferior courts in Westminster
Hall, but by the law and usage of Parliament. And
* 4 Inst. p. 4.
? ? ? ? 10 IMPEACHMENT OF WARREN HASTINGS.
your Committee finds that this has been declared in
the most clear and explicit manner by the House of
Lords, in the year of our Lord 1387 and 1388, in the
11th year of King Richard II.
Upon all appeal in Parliament then depending
against certain great persons, peers and commoners,
the said appeal was referred to the Justices, and other
learned persons of the law. "At which time," it is
said in the record, that " the Justices and Serjeants,
and others the learned in the Law Civil, were charged,
by order of the King our sovereign aforesaid, to give
their faithful counsel to the Lords of the Parliament
concerning the due proceedings in the cause of the
appeal aforesaid. The which Justices, Serjeants, and
the learned in the law of the kingdom, and also the
learned in the Law Civil, have taken the same into
deliberation, and have answered to the said Lords of
Parliament, that they had seen and well considered
the tenor of the said appeal; and they say that the
same appeal was neither made nor pleaded according
to the order which the one law or the other requires.
Upon which the said Lords of Parliament have taken
the same into deliberation and consultation, and by
the assent of our said Lord the King, and of their
common agreement, it was declared, that, in so high
a crime as that which is charged in this appeal, which
touches the person of our lord the King, and the state
of the whole kingdom, perpetrated by persons who
are peers of the kingdom, along with others, the
cause shall not be tried in any other place but. in
Parliament, nor by any:other law than the law and
course of Parliament; and that it belongeth to the
Lords of Parliament, and to their franchise and liberty by the ancient custom of the Parliament, to be
? ? ? ? REPORT ON:THE LORDS' JOURNALS. 11
judges in such cases, and in these cases to judge by
the assent of the King; and thus it shall be done in
this; case, by the award of Parliament: because the
realm of England has not been heretofore, nor is it
the intention of our said lord the King and the Lords
of Parliament that it ever should be governed by the
Law Civil; and also, it is their resolution not to rule
or govern so high a cause as this. appeal is, which
cannot be tried anywhere but in: Parliament, as hath
been said before, by the course, process, and order
used in any courts or place inferior in the same kingdom; which courts and places are not more than the executors of the ancient laws and customs of the
kingdom, and of the ordinances and establishments of
Parliament. It was determined by the said Lords of
Parliament, by the assent of our said lord the King,
that this appeal was made and pleaded well and sufficiently, and that the process upon it is good and effectual, according to the law and course of Parliament; and for such they decree and adjudge it. " * And your:. Committee finds, that toward the close
of the same Parliament the same right was again
claimed and admitted as the special privilege of the
Peers, in the:following manner: "IIn this Parliament, all the Lords then present, Spiritual as well as Temporal, claimed as their franchise, that the weighty
matters moved in this Parliament, and which shall be
moved in other Parliaments in future times, touching
the peers of the land, shall be managed, adjudged,
and discussed by the course of Parliament, and in no
sort by the Law Civil, or by the common law of the
land, used in the other lower courts of the kingdom;
which claim, liberty, and franchise the King gra* Rolls Parl. Vol. III, p. 236.
? ? ? ? 12 IMPEACHMENT OF WARREN HASTINGS.
ciously allowed and granted to them in full Parliamenlt. " *
Your Committee finds that the Commons, having at that time considered the appeal above mentioned, approved the proceedings in it, and, as far as
in them lay, added the sanction of their accusation
against the persons who were the objects of the appeal.
They also, immediately afterwards, impeached all the
Judges of the Common Pleas, the Chief Baron of the
Exchequer, and other learned and eminent persons,
both peers and commoners; -upon the conclusion of
which impeachments it was that the second claim was
entered. In all the transactions aforesaid the Commons were acting parties; yet neither then nor ever
since have they made any objection or protestation,
that the rule laid down by the Lords in the beginning of the session of 1388 ought not to be applied
to the impeachments of commoners as well as peers.
In many cases they have claimed the benefit of this
rule; and in all cases they have acted, and the Peers
have determined, upon the same general principles.
The Peers have always supported the same franchises;
nor are there any precedents upon the records of Parliament subverting either the general rule or the particular privilege, so far as the same relates either to the course of proceeding or to the rule of law by
which the Lords are to judge.
Your Committee observes also, that, in the commissions to the several Lords High Stewards who have
been appointed on the trials of peers impeached by
the Commons, the proceedings are directed to be had
according to the law and custom of the kingdom,
and the custom of Parliament: which words are not
* Rol. Parl. Vol. III. p. 244, ~ 7.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 13
to be found in the commissions for trying upon indictments.
" As every court of justice," says Lord Coke, " hath
laws and customs for its direction, some by-the Common Law, some by the Civil and Canon Law, some
by peculiar laws and customs, &c. , so the High Court
of Parliament suis propriis legibus et consuetudinibus
subsistit. It is by the Lex et Consuetudo Parliamenti,
that all weighty matters in any Parliament moved,
concerning the peers of the realm, or Commons in
Parliament assembled, ought to be determined, adjudged, and discussed, by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts. " And after founding himself on this very precedent of
the 11th of Richard II. , he adds, "'Tis is the reason
that Judges ought not to give any opinion of a matter of
Parliament, because it is not to be decided by the common laws, but secundum Legern et Consuetudinemm Parliamenti: and so the Judges in divers Parliaments have
confessed. " *
RULE OF PLEADING.
YOUR Committee do not find that any rules of
pleading, as observed in the inferior courts, have ever obtained in the proceedings of the High Court of
Parliament, in a cause or matter in which the whole
procedure has been within their original jurisdiction.
Nor does your Committee find that any demurrer or
exception, as of false or erroneous pleading, hath been
ever admitted to any impeachment in Parliament, as'iot coming within the form of the pleading; and although a reservation or protest is made by the defend*4 Inst. 'p. 15.
? ? ? ? 14 IMPEACHMENT OF WARREN HASTINGS.
ant (matter of form, as we conceive) " to the generality, uncertainty, and insufficiency of the articles of
impeachment," yet no objections have in fact been
ever made in any part of the record; and when verbally they have been made, (until this trial,) they
have constantly been overruled.
The trial of Lord Strafford * is one of the most
important eras inl the history of Parliamentary judicature. In that trial, and in the dispositions made
preparatory to it, the process on impeachments was,
on great consideration, research, and selection of precedents, brought very nearly to the form which it retains at this day:; and great and important parts of'Parliamentary Law were then laid down. The Commons at that time made new charges or amended the old as they saw occasion. Upon anl application
from the Commons to the Lords, that the examinations taken by their Lordships, at their request, might
be delivered to them, for the purpose of a more exact
specification of the charge they had made, on delivering the message of the Commons, Mr. Pym, amongst
other things, said, as it is entered in the Lords' Journals, "According to the clause of reservation in the
conclusion of their charge, they [the Commons] will
add to the charges, not to the matter in respect of
comprehension, extent, or kind, but only to reduce
them to more particularities, that the Earl of Strafford might answer with the more clearness and expedition: not that they are bound by this way of
SPECIAL charge; and therefore they have taken care
in their House, upon protestation, that this shall be no
prejudice to bind them from proceeding in GENERAL
in other cases, and that they are not to be ruled by pro* 16 Ch. 1. 1640.
? ? ? ? REPORT ON THE LORDS' JOURNALS. ' 15
ceedings in other courts, which protestation they have
made for the preservation of the power of Parliament;
and they desire that the like care may be had in your
Lordships' House. " e This protestation is. entered on
the Lords' Journals. Thus careful were the Commons that no exactness used by them for a temporary accommodation should become an example derogatory
to the larger rights of Parliamentary process.
At length the question of their being obliged to
conform to any of the rules below came to a formal
judgment. In the trial of Dr. Sachlleverell, March
10th, 1709, the Lord Nottingham " desired their
Lordships' opinion, whether he might propose a
question to the Judges here [in Westminster Hall]. .
Thereupon the Lords, being moved to adjourn, adjourned to the House of Lords, and on debate," as appears by a note, "it was agreed that the question
should be proposed in Westminster Hall. "t Accordingly, when the Lords returned the same day into the Hall, the question was put by Lord Nottingham, and
stated to the Judges by the Lord Chancellor: " Whetlher, by the law of England, and constant practice in all prosecutions by indictment and information for crimes
and misdemeanors by writing or speaking, the particular words supposed to be written or spoken must not be expressly specified in the indictment or information? " On this question the Judges, seriatim, and
in open court, delivered their opinion: the substance
of which was, "That, by the laws of England, and
the constant practice in Westminster Hall, the words
ought to be expressly specified in the indictment or
information. " Then the Lords adjourned, and did
* Lords' Journals, Vol. 'IV. p. 133. ,t Id. Vol. XIX. p. 98.
? ? ? ? 16 IMPEACHMENT OF WARREN HASTINGS.
not come into the Hall until the 20th. In the intermediate time they came to resolutions on the matter
of the question put to the Judges. Dr. Sacheverell,
being found guilty, moved in arrest of judgment upon two points. The first, which he grounded on the
opinion of the Judges, and which your Committee
thinks most to the present purpose, was, "That no
entire clause, or sentence, or expression, in either of
his sermons or dedications, is particularly set forth in
his impeachment, which he has'already heard the
Judges declare to be necessary in all cases of indictments or informations. "* On this head of objection,
the Lord Chancellor, on the 23d of March, agreeably to the resolutions of the Lords of the 14th and
16th of March, acquainted Dr. Sacheverell, "That,
on occasion of the question before put to the Judges
in Westminster Hxall, and their answer thereto, their
Lordships had fully debated and considered of that
matter, and had come to the following resolution:'That this House will proceed to the determination
of the impeachment of Dr. Henry Sacheverell, according to the law of the land, and the law and usage
of Parliament. ' And afterwards to this resolution:'That, by the law and usage of Parliament in prosecutions for high crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified
in such impeachment. ' So that, in their Lordships'
opinion, the law and usage of the High Court of
Parliament being a part of the law of the land, and
that usage not requiring that words should be exactly specified ill impeachments, the answer of the
Judges, which related only to the course of indict* Lords' Journals, Vol. XIX. p. 116.
? ? ? ? REPORT ON THE LORDS' JOURNALS, 17
ments a-nd informations, does not in the least affect
your case. "
On this solemn judgment concerning the law and
usage of Parliament, it is to be remarked: First, that
the impeachment itself is not to be presumed inartificially drawn. It appears to have been the work of
some of the greatest lawyers of the time, who were
perfectly versed in the manner of pleading in the
courts below, and would naturally have imitated their
course, if they had' not been justly fearful of setting
an example which might hereafter subject the plainness and simplicity of a Parliamentary proceeding to
the technical subtilties of the inferior courts. Secondly, that the question put to the Judges, and their
answer, were strictly confined to the law and practice
below; and that nothing in either had a tendency
to their delivering an opinion concerning Parliament,
its laws, its usages, its course of proceeding, or its
powers. Thirdly, that the motion in arrest of judgment, grounded on the opinion of the Judges, was
made only by Dr. Sacheverell himself, and not by his
counsel, men of great skill and learning, who, if they
thought the objections had any weight, would undoubtedly have made and argued them.
Here, as in the case of the 11th King Richard II.
,
the Judges declared unanimously, that such an objection would be fatal to such a pleading in any indictment or information; but the Lords, as on the former occasion, overruled this objection, and held the article to be good and valid, notwithstanding the report
of the Judges concerning the mode of proceeding in
the courts below.
Your Committee finds that a protest, with reasons,
* Lords' Journals, Vol. XIX. p. 121.
VOL. XI. 2
? ? ? ? 18- IMPEACHMENT OF WARREN HASTINGS.
at large,' was entered by several lords against this determination of their court. * It is always an advantage to those who protest, that their reasons appear upon record; whilst the reasons of the majority, who
determine the question, do not appear. This would
be a disadvantage of such importance as greatly to
impair, if not totally to destroy, the effect of precedent
as authority, if the reasons which prevailed were not
justly presumed to be more valid than those which
have been obliged to give way: the former having
governed the final and conclusive decision of a competent court. But your Committee, combining the
fact of this decision with the early decision just quoted, and with the total absence of any precedent of
an objection, before that time or since, allowed to
pleading, or what has ally relation to the rules and
principles of pleading, as used in Westminster Hall,
has no doubt that the House of Lords was governed
in the 9th of Anne by the very same principles which
it had solemnly declared in the 11th of Richard II.
But besides the presumption in favor of the reasons
which must be supposed to have produced this solemn
judgment of the Peers, contrary to the practice of the
courts below, as declared by all the Judges, it is probable that the Lords were unwilling to take a step
which might admit that anything in that practice
should be received as their rule. It must be observed, however, that the reasons against the article
alleged in the protest were by no means solely bottomed in the practice of the courts below, as if the
main reliance of the protesters was upon that usage.
The protesting minority maintained that it was not
agreeable to several precedents in Parliament; of which
* Lords' Journals, Vol. XIX. p. 106.
? ? ? ? REPORT ON THE. LORDS' JOURNALS. 19
they cited many in favor of their opinion-. . It appears
by the Journals, that the clerks were ordered to
search for precedents, and a committee of peers was
appointed to inspect the said precedents, and to report
upon them, - and that they did inspect and report
accordingly. But the report is not entered on the
Journals. It is, however, to be presumed that the
greater number and the better precedents supported
the judgment. Allowing, however, their utmost force
to the precedents there cited, they could serve only
to prove, that, in the case of words, (to which alone,
and not the case of a written libel, the precedents
extended,) such a special averment, according to the
tenor of,the words, had been used; but not that it
was necessary, or that ever any plea had been rejected upon such an objection. As to. the course of Parliament, resorted to for authority in this part of
the protest, the argument seems rather to affirm than
Ato deny the general proposition, that its own course,
and not that of the inferior courts, had been the rule
and. law of Parliament.
As to the objection, taken in the protest, drawn
from natural right, the Lords knew, and it appears
in the course of the proceeding, that the whole of
the libel had been read at length, as appears from
p. 655 to p. 666. * So that Dr. Sacheverell had substantially the same benefit of anything which could be alleged in the extenuation or exculpation as if his
libellous sermons had been entered verbatim upon the
recorded impeachment. It was adjudged sufficient
to state the crime generally in the impeachment.
The libels were given in evidence; and it was not
then thought of, that nothing should be given in
* State Trials, Vol. V,
? ? ? ? 20 IMPEACHMENT OF WARREN HASTINGS.
evidence which was not specially charged in the impeachment.
But whatever their reasons were, (great and grave
they were, no doubt,) such as your Committee has
stated it is the. judgment of the Peers on the Law
of Parliament, as a part of the law of the land.
It is the more forcible as concurring with the judgment in the 11th of Richard II. , and with the total
silence of the Rolls and Journals concerning any
objection to pleading ever being suffered to vitiate
an impeachment, or to prevent evidence being given
upon it, on account of its generality, or any other
failure.
Your Committee do not think it probable, that,
-even before this adjudication, the rules of pleading
below could ever have been adopted in a Parliamentary proceeding, when it is considered that the several statutes of Jeofails, not less than twelve in number,* have been made for the correction of an overstrictness in pleading, to the prejudice of substantial justice: yet in no one of these is to be discovered
the least mention of any proceeding in Parliament.
There is no doubt that the legislature would have
applied its remedy to that grievance in Parliamentary proceedings, if it had found those proceedings
embarrassed with what Lord Mansfield, from the
bench, and speaking of the matter of these statutes,
very justly calls " disgraceful subtilties. "
What is still more strong to the point, your Committee finds that in the 7th of William III. an act
was made for the regulating of trials for treason and
misprision of treason, containing several regulations
for reformation of proceedings at law, both as to
* Statutes at Large, from 12 Ed. I. to 16 and 17 Ch, II.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 21
matters of form and substance, as well as relative
to evidence. It is an act thought most essential
to the liberty of the subject; yet in this high and
critical matter, so deeply affecting the lives, properties, honors, and even the inheritable blood of the
subject, the legislature was so tender of the high pow-'
ers of this high court, deemed so necessary for the
attainment of the great objects of its justice, so fearful of enervating any of its means or circumscribing any of its capacities, even by rules and restraints the most necessary for the inferior courts, that they
guarded against it by an express proviso, " that neither this act, nor anything therein contained, shall
any ways extend to any impeachment or other proceedings in Parliament, in any kind whatsoever. " *
CONDUCT OF THE COMMONS IN PLEADING.
THIS point being thus solemnly adjudged in the
case of Dr. Sacheverell, and the principles of the
judgment being in agreement with the whole course
of Parliamentary proceedings, the Managers for this
Hiouse have ever since considered it as an indispensable duty to assert the same principle, in all its
latitude, upon all occasions on which it could come
in question, -- and to assert it with an energy, zeal,
and earnestness proportioned to the magnitude and
importance of the interest of the Commons of Great
Britain in the religious observation of the rule, that
the Law of Parliament, and the Law of Parliament only, should prevail in the trial of their impeachments.
In the year 1715 ( 1 Geo. I. ) the Commons thought
* 7 W. III. ch. 3, sect. 12.
? ? ? ? 22 IMPEACHMENT OF WARREN HASTINGS.
proper: to impeach of high treason the lords who had
entered into the rebellion of that period. This was
about six years after the decision in the case of
Sacheverell. On the trial of one of these lords, (the
Lord Wintoun,*) after verdict, the prisoner moved
in arrest of judgment, and excepted against the
impeachment for error, on account of the treason
therein laid " not being described with sufficient certainty, - the day on which the treason was committed
not having been alleged. " His counsel was heard
to this point. They contended, " that the forfeitures
in cases of treason are very great, and therefore they
humbly conceived that the accusation ought to contain all the certainty it is capable of, that the prisoner may not by general allegations be rendered incapable to defend. himself in a case which may prove fatal to him: that they would not trouble their Lordships with citing authorities; for they believed there
is not one gentleman of: the long robe but will agree
that an indictment for any capital offence to be erroneous, if the offence be not alleged to be committed
on. a certain day: that'this impeachment set: forth
only that in or about the months of September, October, or November, 1715, the offence' charged in
the impeachment had been committed. " The counsel argued, " that a proceeding by impeachment is a
proceeding at the Common Law, for Lex Parliarzentaria is a part of Common Law, and they submitted
whether there is not the same certainty required
in one method of proceeding at Common Law as in
another. "'
The matter was argued elaborately and learnedly,
not. only on the general principles of the proceedings
* State Trials, Vol. VI. p. 17.
? ? ? ? REPORT -ON THE LORDS': JOURNALS. 23
below, but on the inconvenience and possible hardships
attending this uncertainty. They quoted Sacheverell's case, in whose impeachment "the precise days
were laid when the Doctor preached each of these two
sermons; and that by a like reason a certain day
ought to be laid in the impeachment when this treason was committed; alid that the authority of Dr.
Sacheverell's case seemed so much stronger than the
case in question as the crime of treason is higher than
that of a misdemeanor. "
Here the Managers for the Commons brought the
point a second time to an issue, and that on the
highest of capital cases: an issue, the event of which
was to determine forever whether their impeachments
were to be regulated by the law as understood and observed in the inferior courts. Upon the usage below
there was no doubt; the indictment would unquestionably have been quashed. But the Managers for
the Commons stood forth upon this occasion with a determined resolution, and no less than four of them
seriatim rejected the doctrine contended for by Lord
Wintoun's counsel. They were all eminent members
of Parliament, and three of them great and eminent
lawyers, namely, the then Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,-" Those learned gentlemen
[ Lord Wintoun's counsel] seem to forget in what court
they are. They have taken up so much of your Lordships' time in quoting of authorities, and using arguments to show your Lordships what would quash an indictment in the courts below, that they seemed to forget they are now. in a Court of Parliament, and on an
impeachment of the Commons of Great Britain. For,
should the Commons admit all that they -have offered,
? ? ? ? 24 IMPEACHMENT OF WARREN HASTINGS.
it will not follow that the impeachment of the Commons is insufficient; and I must observe to your
Lordships, that neither of the learned gentlemen
have offered to produce one instance relative to an
impeachment. I mean to show that the sufficiency
of an impeachment was never called in question for
the generality of the charge, or that any instance of
that nature was offered at before. The Commons
don't conceive, that, if this exception would quash
an indictment, it would therefore make the impeachment insufficient. I hope it never will be allowed
here as a reason, that what quashes an indictment in
the courts below will make insufficient an impeachment brought by the Commons of Great Britain. "
The Attorney-General supported Mr. Walpole in
affirmance of this principle. He said, --' "I would
follow the steps of the learned gentleman who spoke
before me, and I think he has given a good answer
to these objections. I would take notice that we are
upon an impeachment, not upon an indictment. The
courts below have set forms to themselves, which have
prevailed for a long course of time, and thereby are
become the forms by which those courts are to govern
themselves; but it never was thought that the forms
of those courts had any influence on the proceedings
of Parliament. In Richard II. 's time, it is said in the
records of Parliament, that proceedings in Parliament
are not to be governed by the forms of Westminster
Hall. We are in the case of an impeachment, and in
the Court of Parliament. Your Lordships have already given judgment against six upon this impeachnacnt, and it is warranted by the precedents in Parliament; therefore we insist that the articles are good in'substance. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 25
Mr. Cowper. --"They [the counsel] cannot but
know that the usages of Parliaments are part of the
laws of the land, although they differ in many instances from the Common Law, as practised in the inferior courts, in point of form. My Lords, if the Commons,
in preparing articles of impeachment, should govern
themselves by precedents of indictments, in my humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament. It
is well known that the form of an impeachment has
very little resemblance to that of an indictment; and
I believe the Commons will endeavor to preserve the
difference, by adhering to their own precedents. "
Sir William Thomson. -" We must refer to the
forms and proceedings in the Court of Parliament,
and which must be owned to be part of the law of the
land. It has been mentioned already to your Lordships, that' the precedents in impeachments are not so nice and precise in form as in the inferior courts; and
we presume your Lordships will be governed by the
forms of your own court, (especially forms that are
not essential to justice,) as the courts below are by
theirs: which -courts differ one from the other in many respects as to their forms of proceedings, and the practice of each court is esteemed as the law of that
court. "
The Attorney-General in reply maintained his first
doctrine. "There is no uncertainty in it that can
be to the prejudice of the prisoner: we insist, it is according to the forms of Parliament: he has pleaded
to it, and your Lordships have found him guilty. "
The opinions of the Judges were taken in the House
of Lords, on the 19th of March, 1715, upon two questions which had been argued in arrest of judgment,
? ? ? ? 26 IMPEACHMENT OF WARREN HASTINGS.
grounded: chiefly on the practice of the courts below.
To the first the Judges answered, -" It is necessary
that there be a certain day laid in such indictments,
on which the fact is alleged to be committed; and that
alleging in such indictments that the fact was committed at or about a certain day would not be sufficient. "
To the second they answered, " that, although a day
certain, when the fact is supposed to be done, be alleged in such indictments, yet it is not necessary upon
the trial to prove the fact to be committed upon that
day; but it is sufficient, if proved to be done on any
other day before the indictment found. "
Then* it was " agreed by the House, and ordered,
that the Lord High Steward be directed to acquaint
the prisoner at the bar in Westminster Hall,'that
the Lords have considered of the matters moved in
arrest of judgment, and are of opinion that they are
not sufficient to arrest the same, but that the impeachment is sufficiently certain in point of time
according to the form of impeachments in Parliament. "' "
On this final adjudication, (given after solemn argument, and after taking the opinion of the Judges,)
in affirmance of the Law of Parliament against the
undisputed usage of the courts below, your Committee has to remark, -- 1st, The preference of the
custom of Parliament to the usage below. By the
very latitude of the charge, the Parliamentary accusation gives the prisoner fair notice to prepare himself upon all points: whereas there seenms something insnaring in the proceedings upon indictment, which,
fixing the specification of a day certain for the treason or felony as absolutely necessary in the charge,
* Lords' Journals, Vol. XX. p. 316.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 27
gives i otice for preparation only on that day, whilst
the prosecutor has the whole range of time antecedent to the indictment to allege and give evidence
of facts against the prisoner. It has been usual,
particularly in later indictments, to add, "at several other times"; but the strictness of naming one
day is still necessary, and the want of the larger
words would not quash the indictment. 2dly, A comparison of the extreme rigor and exactness required
in the more formal part of the proceeding (the indictment) with the extreme laxity used in the substantial part (that is to say, the evidence received
to prove the fact) fully demonstrates that the partisans of those forms would put shackles on the High
Court of Parliament, with which they are not willing,
or find it wholly impracticable, to bind themselves.
3dly, That the latitude of departure fiom the letter
of the indictment (which holds in other matters besides this) is in appearance much more contrary to
natural justice than anything which has been objected against the evidence offered by your Managers, under a pretence that it exceeded the limits of pleading. For, in the case of indictments below, it must' be
admitted that the prisoner may be unprovided with
proof of an alibi, and other material means of defence, or may find some matters unlooked-for produced against him, by witnesses utterly unknown to
him: whereas nothing was offered to be given in
evidence, under any of the articles of this impeachment, except such as the prisoner must have. had
perfect knowledge of; the whole consisting of matters
sent over by himself to the Court of Directors, and
authenticated under his own hand. No substantial
injustice or hardship of any kind could arise from
? ? ? ? 28 IMPEACHMENT OF WARREN HASTINGS.
our evidence under our pleading: whereas in theirs
very great and serious inconveniencies might happen.
Your Committee has further to observe, that, in
the case of Lord Wintoun, as in the case of Dr.
Sacheverell, the Commons had in their Managers
persons abundantly practised in the law, as used in
the inferior jurisdictions, who could easily have followed the precedents of indictments, if they had not purposely, and for the best reasons, avoided such
precedents.
A great writer on the criminal law, Justice Foster,
in one of his Discourses,* fully recognizes those principles for which your Managers have contended, and which have to this time been uniformly observed in
Parliament. In a very elaborate reasoning on the
case of a trial in Parliament, (the trial of those who
had murdered Edward II. ,) he observes thus: - -" It
is well known, that, in Parliamentary proceedings of
this kind; it is, and ever was, sufficient that matters
appear with proper. light and certainty to a common
understanding, without that minute exactness which
is required in criminal proceedings in Westminster
Hall. In these cases the rule has always been,
Loquendum ut vulgus. " And in a note he says, -" In
the proceeding against Mortimer, in this Parliament,
so little regard was had to the forms used in legal proceedings, that he who had been frequently summoned to Parliament as a baron, and had lately been created
Earl of March, is styled through the whole record
merely Roger de Mortimer. "
The departure from the common forms in the first
case alluded to by Foster (viz. , the trial of Berkeley,
* Discourse IV. p. 389.
? ? ? ? REPORT ON THE LORDS' JOURNiLS. 29
Maltravers, &c. , for treason, in the murder of Edward II. *) might be more plausibly attacked, because
they were tried, though in Parliament, by a jury of
freeholders: which circumstance might have given
occasion to justify a nearer approach to the forms
of indictments below. But no such forms were observed, nor in the opinion of this able judge ought
they to have been observed.
PUBLICITY OF THE JUDGES' OPINIONS.
IT appears to your Committee, that, from the 30th
year of King Charles II. until the trial of Warren
Hastings, Esquire, in all trials in Parliament, as
well upon impeachments of the Commons as on indictments brought up by Certiorari, when any mat*ter of law hath been agitated at the bar, or in the course of trial hath been stated by any lord in the
court, it hath been the prevalent custom to state
the same in open court. Your Committee has been
able to find, since that period, no more than one precedent (and that a precedent rather in form than in
substance) of the opinions of the Judges being taken
privately, except when the case on both sides has been
closed, and the Lords have retired to consider of
their verdict or of their judgment thereon.
