The Lord Chief-Baron of the Court of
Exchequer
delivered the unanimous- opinion of the
?
?
Edmund Burke
The High
Steward is but as a Speaker or Chairman po tempore, for the more orderly proceeding at the trials;
the appointment of him doth not alter the nature of
the court, which still remaineth the Court of the Peers
in Parliament. From these premises they draw the
conclusion I have mentioned. Are not these prem* See the proceedings printed by order of the House of Lords, 4th
February, 1746.
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 133
ises equally true in the case of a proceeding upon
indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such
cases. The words objected to by the Commons, Ac
pro eo quod oficium Seneschalli Anglice, (eujus preesentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that
the Great Seal, having no authority to vary in point
of form, hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in the Court of the High
Steward. I will now state the substance of that in a
proceeding in the Court of the Peers in Parliament;
and shall make use of that in the case of the Earl of
Kilmarnock and others, as being the latest, and in
point of form agreeing with the former precedents.
The commission, after reciting that William; Earl of
Kilmarnock, &c. , stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the
King intendeth that the said William, Earl of KUilmarnock, &c. , shall be heard, examined, sentenced,
and adjudged before himself, in this present Parliament, touching the said treason, and for that the
office of Steward of Great Britain (whose presence
is required upon this occasion) is now vacant, as we
are informed, appointeth the then Lord Chancellor
Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things
due and belonging to the same office, in that behalf.
? ? ? ? 134. 'IMPEACHMENT OF WARREN HASTINGS.
What, therefore, are the things due and belonging
to the office in a case of this kind? Not, as in the
Court of the High Steward, a right of judicature; for
the commission itself supposeth that right to reside
in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth
the High Steward, then, take? By the practice and
usage of the Court of the Peers in Parliament, he
giveth his vote as a member thereof, with the rest of
the peers; but, for the sake of regularity and order,
he presideth during the trial and until judgment, as
Chairman or Speaker pro tempore. In that respect,
therefore, it may be prpoperly enough said, that his
presence is required during the trial and until judgment, and in no other. Herein I see no difference between the case of an impeachment and of an indictment. I say, during the time of the trial. and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High
Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved.
I will to this purpose cite a few cases.
I begin with the latest, because they are the latest,
and were ruled with great deliberation, and for the
most part upon a view of former precedents. In the
case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or
writs of Certiorari be issued for removing the indictinents before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read. On the next day, upon the report of the
? ? ? ? REPORT. ON. THE LORDS' JOURNALS. - APPENDIX. 135 Lords' committees,: that. . they had been attended by the Itwo Chief-Justices and OChief-Baron, and, had heard them touching the construction of the act of the 7th and 8th of King William,: "for regulating
trials in cases of high treason and misprision of
treason,s" the i House, upon reading the report, came
to several:resolutions, founded for the most part
on the construction of ithat act. What that construction was, appeareth- from the Lord. High Steward's address to the prisoners just before their arraignment. Having mentioned that act as one happy consequence of the Revolution,:he. addeth, -
"However injuriously that revolution hath been traduced, whatever attempts have been made to subvert
this happy: establishment founded on it, your Lordships will now have the benefit, of: that law in its full
extent. "
I need not, after, this, mention any other judicial
acts done by the House in this case, before the appointment of the High Steward: many there are.
For the putting a construction upon-an act relative
to the conduct of the court and the right of the subject at the trial, and in the proceedings preparatory to
it, and this in a case entirely new, and npon a point,
to say no more: in this place, not, extremely clear,
was undoubtedly an exercise of authority proper only
for a court having full cognizance of the cause.
I will not minutely enumerate the several orders
made preparatory to the trial of Lord Lovat, and in
the several cases I shall have occasion to mention,
touching the time and place of the trial, the allowance or non-allowance of council, and other matters
of the like kind, all plainly judicial; because the like
orders occur in all the cases where a journal of the
? ? ? ? 136 IMPEACHMENT OF WARREN HASTINGS.
preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think
the order directing the form of the High Steward's
commission, which I have already taken notice of, is
not very consistent with the idea of a court whose
powers can be supposed to depend, at any point of
time, upon the existence or dissolution of that commission.
In the case of the Earl of Derwentwater and the
other lords impeached at the same time, the House
received and recorded the confessions of those of them
who pleaded guilty, long before the teste of the High
Steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself.
It reciteth, that the Earl of Derwentwater and others, coram nobis in prcesenti Parliamento, had been impeached by the Commons for high treason, and had,
coram nobis in prcesenti Parliamento, pleaded guilty
to that impeachment; and that the King, intending
that the said Earl of Derwentwater and others, de et
pro proditione unde ipsi ut prcefertur impetit', accusat',
et convict' existunt coram nobis in prcesenti Parliamento,
secundum legem et consuetudinem hujus regni nostri
Magnce Britannice, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hae vice) to do and execute all things which
to the office of High Steward in that behalf do belong.
The receiving and recording the confession of the
prisoners, which amounted to a conviction, so that
nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no
assembly, how great soever, not having full cognizance of the cause, could exercise.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 137
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his petition, allowed him the benefit of the act
of general pardon passed in the second year of William
and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that
case. On the 2d of October, 1690, upon reading
the Earl's petition, setting forth that he had been a
prisoner for a year and nine months in the Tower,
notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to
give their opinions whether the said Earl be pardoned
by the act. On the 6th the Judges delivered their
opinions, that, if his offence was committed before
the 13th of February, 1688, and not in Ireland or
beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day
he and his sureties entered into a recognizance of bail,
himself in ten thousand pounds, and two sureties in
five thousand pounds each; and on the 30th he and
his sureties were, after a long debate, discharged
from their recognizance. * It will not be material to
inquire whether the House did right in discharging
the Earl without- giving the Commons all opportunity
of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,
- which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after
the High Steward's commission dissolved. These
lords had judgment passed on them at the same time
- See the Journals of the Lords.
? ? ? ? 138 - IMPEACHMENT OF WARREN HASTINGS.
that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his
staff, and declared'the commission dissolved. They
continued prisoners in the Tower under reprieves,
till the passing the act of general pardon, in the 3d
of King George I. On the 21st of November, 1717,
the House being informed that these lords had severally entered into recognizances before one of the
judges of the Court of King's Bench for their appearance in the House in this session of: Parliament,
and that the LOrds Carnwarth and Widdrington were
attending accordingly, and that the Lord Nairn was ill
at Bath and could not then- attend, the Lords Carnwarth and Widdrington were called in, and severally
at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act * for
his Majesty's general and free pardon. Whereupon
the House ordered that their appearance be recorded,
and that they attend again to-morrow, in order to plead
the pardon; and the recognizance of the Lord Nairn
was respited till that day fortnight. :On the morrow
the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attaint-'ed of high treason, and asked them severally what they had to say why they should not be remanded
to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and
that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who. then
attended for that purpose, declaring that he had no
3. Geo. I. c. 19.
? ? ? ? REPORT ON THE-LORDS' JOURNALS. - APPENDIX. 139
objection on his Majesty's behalf to what was prayed,
conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading the clause
in the act relating to that matter,* agreed that they
should be allowed the benefit of the pardon, as to
their lives and liberties, and discharged their recognizances; and gave them leave to depart without further day given for their appearance. On the 6th of
December following, the like- proceedings were had,
and the like orders made, in;the case of Lord Nairn. 4
- I observe that the Lord- Chancellor did not ask these
lbrds what they had to say why execution should not
be awarded. There was, it is probable, some little
delicacy as to that point. But since the allowance of
the benefit of the act, as: to life and liberty, which
was all that was prayed, was an effectual bar to any
future imprisonment on that account, and also to execution, and might have been pleaded as such in any
court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High, Steward's- commission had been long dissolved, -which is all the use I intended to' make of this case.
I will not recapitulate: the cases I have cited, and
the conclusions drawn from them, are brought into a
very narrow compass. I will only add, that it would
sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and
held in judgment of law before the King himself, can
in any event whatever be under an utter, incapacity
of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every
* See sect. 45 of the 3d Geo. I. t Lords' Journals.
? ? ? ? 140 IMPEACHMENT OF WARREN HASTINGS.
criminal proceeding, without certain supplemental
powers derived from the Crown.
These cases, with the observations I have made on
them, I hope sufficiently warrant the opinion of the
Judges upon that part of the second question, in the
case of the late Earl Ferrers, which I have already
mentioned, - and also what was advanced by the
Lord Chief-Baron in his argument on that question,
-" That, though the office of High Steward should
happen to determine before execution done according to the judgment, yet the- Court of the Peers in
Parliament, where that judgment was given, would
subsist for all the purposes of justice during the sitting of the Parliament," and consequently, that, in
the case supposed by the question, that court might
appoint a new day for the execution.
No. II.
QUESTIONS referred by the Lords to the Judges, in
the Impeachment of Warren Hastings, Esquire, and
the Answers of the Judges. -Extracted from the
Lords' Journals and Minutes.
First.
Question. - Whether, when a witness produced and
examined in a criminal proceeding by a prosecutor
disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 141 have been made by such witness before a committee of the House of Commons, or in any other place,
and by. demanding of him whether the particulars so suggested were not the answer he had so -made? 1788, February 29. - Pa& 418.
Answer. -The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:" That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all
knowledge of any matter so interrogated, it is not
competent for such prosecutor to pursue such examination, by proposing a question containing the. particulars of an answer supposed to have been made by such witness before a committee of the
House of Commons, or in any other place, and by
demanding of him whether the particulars so suggested were not the answer he had so made. "
1788, April 10. - Pa. 592.
Second.
Question. -Whether it be competent for the Managers to produce an examination taken without oath
by the rest of the Council in the absence of Mr.
Hastings, the Governor-General, charging Mr. Hlastings with corruptly receiving 3,54,105 rupees, which
examination came to his knowledge, and was by
him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce
the proof of his demeanor thereupon, --it being alleged by the Managers for the Commons, that he took
? ? ? ? 142 IMPEACHMENT OF WARREN HASTINGS.
no steps to clear himself, in the opinion of the said
Directors, of the guilt thereby imputed, but that he
took active means to prevent the examination by the
said Councillors of his servant Cantoo. Baboo. ?
1789, May 14. - Pa. 677.
Answer. - The Lord Chief-Baron. of the Court of
Exchequer delivered the unanimous opinion! of the
Judges upon the said question, in the. negative, -- and
gave his reasons. . 1789, May 20. -Pa. 718.
Third.
Question. -Whether the instructions from the Court
of Directors of the United Company of Merchants of
England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General' John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (constituted and appointed the GovernorGeneral and Council of the said United Company's Presidency of Fort William in Bengal, by an act of
Parliament passed in the last session, intituled, " An
act for establishing certain regulations for the better
management of the affairs of the East India Company,
as well in India as in Europe,") of the 29th of March,
1774, Par. 31, 32, and 35, the Consultation of the
11th March, 1775, the Consultation of the 13th of
March, 1775, up to the time that Mr. Hastings left
the Council, the Consultation of the 20th of March,
1775, the letter written. byMr. Hastings to the Court
of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or
defend his conduct,) are sufficient to. introduce the
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 143 examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council, - such examination
and proceedings charging Mr. Hastings with corruptly receiving 3,54,105 rupees? 1789, May 21. - Pa. 730.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the negative,- and
gave his reasons. 1789, May- 27. - Pa. 771.
Fourth.
Question. - Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the pait of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings, - and it being in proof, that Mr. Hastings, on the 11th of
May, 1778, moved the Board to comply. with the
requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board, -- ought to be read?
1789, June 17. - Pa. 855.
Answer.
The Lord Chief-Baron of the Court of Exchequer delivered the unanimous- opinion of the
? ? ? ? 144 IMPEACHMENT OF WARREN HASTINGS.
Judges upon the said question, in the negative, -and
gave his reasons. 1789, June 24. - Pa. 922.
Fiifth.
Question. - Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in
order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of
the Nabob Mobarek ul Dowlah, --and which paper
was the subject of the deliberation of the Council on
the 31st July, 1775, Mr. Hastings being then present,
and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,may be admitted as evidence of the actual state and situation of the Nabob with reference to the English
government? 1789, July 2. - Pa. 1001.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the affirmative,and gave his reasons. 1789, July 7. - Pa. 1030.
Sixth.
Question. -Whether it be or be not competent to
the Managers for the Commons to give evidence upon
the charge in the sixth article, to prove that the rent,
at which the defendant, Warren Hastings, let the
lands mentioned in the said sixth article of charge
to Kelleram, fell into arrear and was deficient, - and
? ? ? ? REPORT ON THE LORDS' JOURNALS. -APPENDIX. 145 whether, if proof were offered that the rent fell in arrear immediately after the letting, the evidence would in that case be competent?
1790, April 22. - Pa. 364.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to give
evidence upon the charge in the sixth article, to prove
that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article
of charge to Kelleram, fell into arrear and was deficient," -and gave his reasons.
1790, April 27. - Pa. 388.
Seventh.
Question. - Whether it be competent for the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz. :
"What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"? 1790, April 27. -Pa. 391.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the sixth
article of charge, viz. : What impression the letting
of the lands to Kelleram and Cullian Sing made on
the: minds of the inhabitants of that country," - and
gave his reasons. 1790, April 29. -Pa. 413.
VOL. XI. 10
? ? ? ? 146 IMPEACHMENT OF WARREN HASTINGS. -Eighth.
Question. - Whether it be competent to the Mana. gers for the Commons to put the following question to the witness, upon the seventh article of charge, viz. : "Whether more oppressions did actually exist under the new institution than under the old"? 1790, April 29. -Pa. 415.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the
seventh article of charge, viz. : Whether more oppressions did actually exist under the new institution than under the old," - and gave his reasons.
1790, May 4. - Pa. 428.
Ninth
Question. -- Whether the letter of the 13th April, 1781, can be given in evidence by the Managers for the Commons, to prove that the letter of the 5th of May, 1781, already given in evidence, relative to the abolition of the Provincial Council and the subsequent appointment of the Committee of Revenue, was false in any other particular than that which is charged in the seventh article of charge?
1790, May 20. '-Pa. 557.
Answer. - The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,-" That it is not competent for the Managers on the part of the Corm mons to give any evidence on the seventh article of
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX, 147 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 Consdltation 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.
? ? ? ? 148:IMPEACHMENT'OF WARREN HASTINGS.
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.
? ? ? ? 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 tolower 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 admin
? ? ? ? 150 IMPEACHMENT OF WARREN HASTINGS.
istered 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. SPEAIKER, -- 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.
? ? ? ? VINDICATION OF THE PRECEDING REPORT. 151
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 observa'
tions 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 thinksthat most expedient for the public good. Your Committee has obeyed your orders;
it has done its duty in making that Report.
? ? ? ? 152 IMPEACHMENT OF WARREN HASTINGS. 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
? ? ? ? VINDICATION OF THE PRECEDING REPORT. 153 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.
? ? ? ? SPEE CH ES
IN
THE.
Steward is but as a Speaker or Chairman po tempore, for the more orderly proceeding at the trials;
the appointment of him doth not alter the nature of
the court, which still remaineth the Court of the Peers
in Parliament. From these premises they draw the
conclusion I have mentioned. Are not these prem* See the proceedings printed by order of the House of Lords, 4th
February, 1746.
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 133
ises equally true in the case of a proceeding upon
indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such
cases. The words objected to by the Commons, Ac
pro eo quod oficium Seneschalli Anglice, (eujus preesentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that
the Great Seal, having no authority to vary in point
of form, hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in the Court of the High
Steward. I will now state the substance of that in a
proceeding in the Court of the Peers in Parliament;
and shall make use of that in the case of the Earl of
Kilmarnock and others, as being the latest, and in
point of form agreeing with the former precedents.
The commission, after reciting that William; Earl of
Kilmarnock, &c. , stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the
King intendeth that the said William, Earl of KUilmarnock, &c. , shall be heard, examined, sentenced,
and adjudged before himself, in this present Parliament, touching the said treason, and for that the
office of Steward of Great Britain (whose presence
is required upon this occasion) is now vacant, as we
are informed, appointeth the then Lord Chancellor
Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things
due and belonging to the same office, in that behalf.
? ? ? ? 134. 'IMPEACHMENT OF WARREN HASTINGS.
What, therefore, are the things due and belonging
to the office in a case of this kind? Not, as in the
Court of the High Steward, a right of judicature; for
the commission itself supposeth that right to reside
in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth
the High Steward, then, take? By the practice and
usage of the Court of the Peers in Parliament, he
giveth his vote as a member thereof, with the rest of
the peers; but, for the sake of regularity and order,
he presideth during the trial and until judgment, as
Chairman or Speaker pro tempore. In that respect,
therefore, it may be prpoperly enough said, that his
presence is required during the trial and until judgment, and in no other. Herein I see no difference between the case of an impeachment and of an indictment. I say, during the time of the trial. and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High
Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved.
I will to this purpose cite a few cases.
I begin with the latest, because they are the latest,
and were ruled with great deliberation, and for the
most part upon a view of former precedents. In the
case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or
writs of Certiorari be issued for removing the indictinents before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read. On the next day, upon the report of the
? ? ? ? REPORT. ON. THE LORDS' JOURNALS. - APPENDIX. 135 Lords' committees,: that. . they had been attended by the Itwo Chief-Justices and OChief-Baron, and, had heard them touching the construction of the act of the 7th and 8th of King William,: "for regulating
trials in cases of high treason and misprision of
treason,s" the i House, upon reading the report, came
to several:resolutions, founded for the most part
on the construction of ithat act. What that construction was, appeareth- from the Lord. High Steward's address to the prisoners just before their arraignment. Having mentioned that act as one happy consequence of the Revolution,:he. addeth, -
"However injuriously that revolution hath been traduced, whatever attempts have been made to subvert
this happy: establishment founded on it, your Lordships will now have the benefit, of: that law in its full
extent. "
I need not, after, this, mention any other judicial
acts done by the House in this case, before the appointment of the High Steward: many there are.
For the putting a construction upon-an act relative
to the conduct of the court and the right of the subject at the trial, and in the proceedings preparatory to
it, and this in a case entirely new, and npon a point,
to say no more: in this place, not, extremely clear,
was undoubtedly an exercise of authority proper only
for a court having full cognizance of the cause.
I will not minutely enumerate the several orders
made preparatory to the trial of Lord Lovat, and in
the several cases I shall have occasion to mention,
touching the time and place of the trial, the allowance or non-allowance of council, and other matters
of the like kind, all plainly judicial; because the like
orders occur in all the cases where a journal of the
? ? ? ? 136 IMPEACHMENT OF WARREN HASTINGS.
preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think
the order directing the form of the High Steward's
commission, which I have already taken notice of, is
not very consistent with the idea of a court whose
powers can be supposed to depend, at any point of
time, upon the existence or dissolution of that commission.
In the case of the Earl of Derwentwater and the
other lords impeached at the same time, the House
received and recorded the confessions of those of them
who pleaded guilty, long before the teste of the High
Steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself.
It reciteth, that the Earl of Derwentwater and others, coram nobis in prcesenti Parliamento, had been impeached by the Commons for high treason, and had,
coram nobis in prcesenti Parliamento, pleaded guilty
to that impeachment; and that the King, intending
that the said Earl of Derwentwater and others, de et
pro proditione unde ipsi ut prcefertur impetit', accusat',
et convict' existunt coram nobis in prcesenti Parliamento,
secundum legem et consuetudinem hujus regni nostri
Magnce Britannice, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hae vice) to do and execute all things which
to the office of High Steward in that behalf do belong.
The receiving and recording the confession of the
prisoners, which amounted to a conviction, so that
nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no
assembly, how great soever, not having full cognizance of the cause, could exercise.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 137
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his petition, allowed him the benefit of the act
of general pardon passed in the second year of William
and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that
case. On the 2d of October, 1690, upon reading
the Earl's petition, setting forth that he had been a
prisoner for a year and nine months in the Tower,
notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to
give their opinions whether the said Earl be pardoned
by the act. On the 6th the Judges delivered their
opinions, that, if his offence was committed before
the 13th of February, 1688, and not in Ireland or
beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day
he and his sureties entered into a recognizance of bail,
himself in ten thousand pounds, and two sureties in
five thousand pounds each; and on the 30th he and
his sureties were, after a long debate, discharged
from their recognizance. * It will not be material to
inquire whether the House did right in discharging
the Earl without- giving the Commons all opportunity
of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,
- which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after
the High Steward's commission dissolved. These
lords had judgment passed on them at the same time
- See the Journals of the Lords.
? ? ? ? 138 - IMPEACHMENT OF WARREN HASTINGS.
that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his
staff, and declared'the commission dissolved. They
continued prisoners in the Tower under reprieves,
till the passing the act of general pardon, in the 3d
of King George I. On the 21st of November, 1717,
the House being informed that these lords had severally entered into recognizances before one of the
judges of the Court of King's Bench for their appearance in the House in this session of: Parliament,
and that the LOrds Carnwarth and Widdrington were
attending accordingly, and that the Lord Nairn was ill
at Bath and could not then- attend, the Lords Carnwarth and Widdrington were called in, and severally
at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act * for
his Majesty's general and free pardon. Whereupon
the House ordered that their appearance be recorded,
and that they attend again to-morrow, in order to plead
the pardon; and the recognizance of the Lord Nairn
was respited till that day fortnight. :On the morrow
the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attaint-'ed of high treason, and asked them severally what they had to say why they should not be remanded
to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and
that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who. then
attended for that purpose, declaring that he had no
3. Geo. I. c. 19.
? ? ? ? REPORT ON THE-LORDS' JOURNALS. - APPENDIX. 139
objection on his Majesty's behalf to what was prayed,
conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading the clause
in the act relating to that matter,* agreed that they
should be allowed the benefit of the pardon, as to
their lives and liberties, and discharged their recognizances; and gave them leave to depart without further day given for their appearance. On the 6th of
December following, the like- proceedings were had,
and the like orders made, in;the case of Lord Nairn. 4
- I observe that the Lord- Chancellor did not ask these
lbrds what they had to say why execution should not
be awarded. There was, it is probable, some little
delicacy as to that point. But since the allowance of
the benefit of the act, as: to life and liberty, which
was all that was prayed, was an effectual bar to any
future imprisonment on that account, and also to execution, and might have been pleaded as such in any
court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High, Steward's- commission had been long dissolved, -which is all the use I intended to' make of this case.
I will not recapitulate: the cases I have cited, and
the conclusions drawn from them, are brought into a
very narrow compass. I will only add, that it would
sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and
held in judgment of law before the King himself, can
in any event whatever be under an utter, incapacity
of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every
* See sect. 45 of the 3d Geo. I. t Lords' Journals.
? ? ? ? 140 IMPEACHMENT OF WARREN HASTINGS.
criminal proceeding, without certain supplemental
powers derived from the Crown.
These cases, with the observations I have made on
them, I hope sufficiently warrant the opinion of the
Judges upon that part of the second question, in the
case of the late Earl Ferrers, which I have already
mentioned, - and also what was advanced by the
Lord Chief-Baron in his argument on that question,
-" That, though the office of High Steward should
happen to determine before execution done according to the judgment, yet the- Court of the Peers in
Parliament, where that judgment was given, would
subsist for all the purposes of justice during the sitting of the Parliament," and consequently, that, in
the case supposed by the question, that court might
appoint a new day for the execution.
No. II.
QUESTIONS referred by the Lords to the Judges, in
the Impeachment of Warren Hastings, Esquire, and
the Answers of the Judges. -Extracted from the
Lords' Journals and Minutes.
First.
Question. - Whether, when a witness produced and
examined in a criminal proceeding by a prosecutor
disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 141 have been made by such witness before a committee of the House of Commons, or in any other place,
and by. demanding of him whether the particulars so suggested were not the answer he had so -made? 1788, February 29. - Pa& 418.
Answer. -The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:" That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all
knowledge of any matter so interrogated, it is not
competent for such prosecutor to pursue such examination, by proposing a question containing the. particulars of an answer supposed to have been made by such witness before a committee of the
House of Commons, or in any other place, and by
demanding of him whether the particulars so suggested were not the answer he had so made. "
1788, April 10. - Pa. 592.
Second.
Question. -Whether it be competent for the Managers to produce an examination taken without oath
by the rest of the Council in the absence of Mr.
Hastings, the Governor-General, charging Mr. Hlastings with corruptly receiving 3,54,105 rupees, which
examination came to his knowledge, and was by
him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce
the proof of his demeanor thereupon, --it being alleged by the Managers for the Commons, that he took
? ? ? ? 142 IMPEACHMENT OF WARREN HASTINGS.
no steps to clear himself, in the opinion of the said
Directors, of the guilt thereby imputed, but that he
took active means to prevent the examination by the
said Councillors of his servant Cantoo. Baboo. ?
1789, May 14. - Pa. 677.
Answer. - The Lord Chief-Baron. of the Court of
Exchequer delivered the unanimous opinion! of the
Judges upon the said question, in the. negative, -- and
gave his reasons. . 1789, May 20. -Pa. 718.
Third.
Question. -Whether the instructions from the Court
of Directors of the United Company of Merchants of
England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General' John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (constituted and appointed the GovernorGeneral and Council of the said United Company's Presidency of Fort William in Bengal, by an act of
Parliament passed in the last session, intituled, " An
act for establishing certain regulations for the better
management of the affairs of the East India Company,
as well in India as in Europe,") of the 29th of March,
1774, Par. 31, 32, and 35, the Consultation of the
11th March, 1775, the Consultation of the 13th of
March, 1775, up to the time that Mr. Hastings left
the Council, the Consultation of the 20th of March,
1775, the letter written. byMr. Hastings to the Court
of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or
defend his conduct,) are sufficient to. introduce the
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 143 examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council, - such examination
and proceedings charging Mr. Hastings with corruptly receiving 3,54,105 rupees? 1789, May 21. - Pa. 730.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the negative,- and
gave his reasons. 1789, May- 27. - Pa. 771.
Fourth.
Question. - Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the pait of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings, - and it being in proof, that Mr. Hastings, on the 11th of
May, 1778, moved the Board to comply. with the
requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board, -- ought to be read?
1789, June 17. - Pa. 855.
Answer.
The Lord Chief-Baron of the Court of Exchequer delivered the unanimous- opinion of the
? ? ? ? 144 IMPEACHMENT OF WARREN HASTINGS.
Judges upon the said question, in the negative, -and
gave his reasons. 1789, June 24. - Pa. 922.
Fiifth.
Question. - Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in
order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of
the Nabob Mobarek ul Dowlah, --and which paper
was the subject of the deliberation of the Council on
the 31st July, 1775, Mr. Hastings being then present,
and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,may be admitted as evidence of the actual state and situation of the Nabob with reference to the English
government? 1789, July 2. - Pa. 1001.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the affirmative,and gave his reasons. 1789, July 7. - Pa. 1030.
Sixth.
Question. -Whether it be or be not competent to
the Managers for the Commons to give evidence upon
the charge in the sixth article, to prove that the rent,
at which the defendant, Warren Hastings, let the
lands mentioned in the said sixth article of charge
to Kelleram, fell into arrear and was deficient, - and
? ? ? ? REPORT ON THE LORDS' JOURNALS. -APPENDIX. 145 whether, if proof were offered that the rent fell in arrear immediately after the letting, the evidence would in that case be competent?
1790, April 22. - Pa. 364.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to give
evidence upon the charge in the sixth article, to prove
that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article
of charge to Kelleram, fell into arrear and was deficient," -and gave his reasons.
1790, April 27. - Pa. 388.
Seventh.
Question. - Whether it be competent for the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz. :
"What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"? 1790, April 27. -Pa. 391.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the sixth
article of charge, viz. : What impression the letting
of the lands to Kelleram and Cullian Sing made on
the: minds of the inhabitants of that country," - and
gave his reasons. 1790, April 29. -Pa. 413.
VOL. XI. 10
? ? ? ? 146 IMPEACHMENT OF WARREN HASTINGS. -Eighth.
Question. - Whether it be competent to the Mana. gers for the Commons to put the following question to the witness, upon the seventh article of charge, viz. : "Whether more oppressions did actually exist under the new institution than under the old"? 1790, April 29. -Pa. 415.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the
seventh article of charge, viz. : Whether more oppressions did actually exist under the new institution than under the old," - and gave his reasons.
1790, May 4. - Pa. 428.
Ninth
Question. -- Whether the letter of the 13th April, 1781, can be given in evidence by the Managers for the Commons, to prove that the letter of the 5th of May, 1781, already given in evidence, relative to the abolition of the Provincial Council and the subsequent appointment of the Committee of Revenue, was false in any other particular than that which is charged in the seventh article of charge?
1790, May 20. '-Pa. 557.
Answer. - The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,-" That it is not competent for the Managers on the part of the Corm mons to give any evidence on the seventh article of
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX, 147 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 Consdltation 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.
? ? ? ? 148:IMPEACHMENT'OF WARREN HASTINGS.
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.
? ? ? ? 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 tolower 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 admin
? ? ? ? 150 IMPEACHMENT OF WARREN HASTINGS.
istered 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. SPEAIKER, -- 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.
? ? ? ? VINDICATION OF THE PRECEDING REPORT. 151
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 observa'
tions 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 thinksthat most expedient for the public good. Your Committee has obeyed your orders;
it has done its duty in making that Report.
? ? ? ? 152 IMPEACHMENT OF WARREN HASTINGS. 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
? ? ? ? VINDICATION OF THE PRECEDING REPORT. 153 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.
? ? ? ? SPEE CH ES
IN
THE.
