This determined and systematic privacy was the
more alarming to.
more alarming to.
Edmund Burke
606*.
Die Lunge, 28~ Julii, 1746.
t Id. , Vol. XI. p. 262.
? ? ? ? 36 IMPEACHMENT OF WARREN HASTINGS.
variations from it there might be in practice) to have
been so clearly established at a more early period,
that all the Judges of England resolved in Lord Morley's trial, in the year 1666, (about twelve years before the observation of Lord Nottingham,) on a supposition that the trial, should be actually concluded, and the Lords retired to the Chamber of Parliament to consult
on their verdict, that even in that case, (much stronger
than the observation of your Committee requires for
its support,) if their opinions should then be demand
ed by the Peers, for the information of their private
conscience, yet they determined that they should be
given in public. This resolution is in itself so solemn, and is so bottomed on constitutional principle
and legal policy, that your Committee have thought
fit to insert it verbatim in their Report, as they relied
upon it at the bar of the Court, when they contended
for the same publicity.
" It was resolved, that, in case the Peers who are
triers, after the evidence given, and the prisoner withdrawn, and they gone to consult of the verdict, should
desire to speak with any of the Judges, to have their
opinion upon any point of law, that, if the Lord
Steward spoke to us to go, we should go to them;
but when the Lords asked us any question, we should
not deliver any private opinion, but let them know we
were not to deliver any:private opinion without conference with the rest of the Jiudges, and that to be done openly in court; and this (notwithstanding the precedent in
the case of the Earl of Castlehaven) was thought prudent
in regard of ourselves, as well as for the avoiding suspicion which might grow by private opinions: ALL resolutions of Judges being AL WA YS done in public. " *
* Kelyng's Reports, p. 54.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 37
The Judges in this resolution overruled the authority of the precedent, which militated against the
whole spirit of their place and profession. Their
declaration was without reserve or exception, that
"' all resolutions of the Judges are always done in
public. " These Judges (as should be remembered
to their lasting honor) did not think it derogatory
fromn their dignity, nor from their duty to the House
of Lords, to take such measures concerning the publicity of their resolutions as should secure them from. suspicion. They knew that the mere circumstance
of privacy in a judicature, where any publicity is
in use, tends to beget suspicion and jealousy. Your
Comnlittee is of opinion that the honorable policy of
avoiding suspicion by avoiding privacy is not lessened by anything which exists in the present time
and in the present trial.
Your Committee has here to remark, that this
learned Judge seemed to think the case of Lord
Audley (Castlehaven) to be more against him than
in truth it was. The precedents were as follow.
The opinions of the Judges were taken three times:
the first time by the Attorney-General at Serjeants'
Inn, antecedent to the trial; the last time, after the
Peers had retired to consult on their verdict; the
middle time was during the trial itself: and here the
opinion was taken in open court, agreeably to what
your Committee contends to have been the usage ever since this resolution of the Judges. * What was done before seemed to have passed sub silentio, and
possibly through mere inadvertence.
Your Committee observes, that the precedents by
them relied on were furnished from times in which
* Rushworth, Vol. II. pp. 93, 94, 95, 100.
? ? ? ? 88 IMPEACHMENT OF WARREN HASTINGS.
the judicial proceedings in Parliament,, and -in' all our
courts, had obtained a very regular form. . They were
furnished at a period in which Justice Blackstone
remarks that more laws were passed of importance
to the rights and liberties of the subject than in any
other. These precedents lean all one way, and carry
no marks of accommodation to the variable spirit of
the times and of political occasions. They are the
same before and after the Revolution. They are the
same through five reigns. The great men who presided in the tribunals which furnished these examples were in opposite political interests, but all distinguished for their ability, integrity, and learning. The Earl of Nottingham, who, was the first on the
bench to promulgate this publicity as a rule, has not
left us to seek the principle in the case: that very
learned man considers the publicity of the questions
and answers as a matter of justice, and of justice favorable to the prisoner. In the case of Mr. Hastings,
the prisoner's counsel did not join your Committee
in their endeavors to obtain the publicity we demanded. Their reasons we can only conjecture.
But your Managers, acting for this iobuse, were
not the less bound to see that the due Parliamentary course should be pursued, even when it is most
favorable to those whom they impeach. If it should
answer the purposes of one prisoner to waive the
rights which belong to all prisoners, it was the duty
of your Managers to protect those general rights
against that particular prisoner. It was still more
their duty to endeavor that their own questions
should not be erroneously stated, or cases put which
varied from those which they argued, or opinions given in a manner not supported by the spirit of our
? ? ? ? REPORT ON THE LORDS' JOURNALS. 39
laws and institutions or by analogy with the practice of all our courts.
Your Committee, much in the dark about a matter
in which it was so necessary that they should receive
every light, have heard, that, in debating this matter
abroad, it has been objected, that many of the precedents on which we most: relied were furnished in the
courts of the Lord High Steward, and not in trials
where the Peers were Judges, - and that the Lord
HIigh Steward not having it in ihis power to retire
with the juror Peers, the Judges' opinionsj from necessity, not from equity to the parties, were given
before that magistrate.
Your Committee thinks it scarcely possible that
the Lords could be influenced by such a feeble argument. For, admitting the fact to have been as supposed, there is no sort of reason why so uniform a course of precedents, in a legal court composed of a
peer for judge and peers, for triers, a course so favorable to all parties and to equal justice, a course
in concurrence with the procedure of all our other
courts, should not have the greatest authority over
their practice in every trial before the whole body of
the peerage.
The Earl of Nottingham, who acted as High Steward in one of these commissions, certainly knew what
he was saying. He gave no such reason. His argument for the publicity of the Judges' opinions did not
turn at all on the nature of his court, or of his office
in tliat court. It rested on the equity of the principle, and on the fair dealing due to the prisoner.
Lord Somers was in no such court; yet his declaration is full as strong. He does not, indeed, argue
the point, as the Earl of Nottingham did, when he
? ? ? ? 40 IMPEACHMENT OF WARREN HASTINGS.
considered it as a new case. Lord Somers considers
it as a point quite settled, and no longer standing in
need of being supported by reason or precedent.
But it is a mistake that the precedents stated in
this Report are wholly drawn from proceedings in
that kind of court. Only two are cited which are
furnished from a court constituted in the manner
supposed. The rest were in trials by all the peers,
and not by a jury of peers with an High Steward.
After long discussions with the Peers on this subject, " the Lords' committees in a conference told them (the committee of this House, appointed to a
conference on the matter) that the High Steward is
but Speaker pro tempore, and giveth his vote as well
as the other lords: this changeth not the nature of
the court. And the Lords declared, that they have
power enough to proceed to trial, though the King
should not name an High Steward. " On the same
day," it is declared and ordered by the Lords Spiritual
and Temporal in Parliament assembled, that the office
of High Steward on trials of peers upon impeachments
is not necessary to the House of Peers, but that the
Lords may proceed in such trials, if an High Steward
is not appointed according to their humble desire. "*
To put the matter out of all doubt, and to remove
all jealousy on the part of the Commons, the commission of the Lord High Steward was then altered. These rights, contended for by the Commons in
their impeachments, and admitted: by the Peers, were
asserted in the proceedings preparatory to the trial of
Lord Stafford, in which that long chain of uniform
precedents with regard to the publicity of the Judges'
opinions in trials begins.
* Foster's Crown Law, p. 145.
? ? ? ? REPORT ON, THE LORDS' JOURNALS. 41
For these last citations, and some of the remarks,
your Committee are indebted to the learned and upright Justice Foster. They have compared them
with the Journals, and find them correct. The same
excellent author proceeds to demonstrate that whatever he says of trials by impeachment is equally
applicable to trials before the High Steward on indictment; and consequently, that there is no ground
for a distinction, with regard to the public declaration
of the Judges' opinions, founded on the inapplicability
of either of these cases to the other. The argument
on this whole matter is so satisfactory that your Committee has annexed it at large to their Report. * As
there is no difference in fact between these trials,
(especially since the act which provides that all the
peers shall be summoned to the trial of a peer,) so
there is no difference in the reason and principle of
the publicity, let the matter of the Steward's jurisdiction be as it may.
PUBLICITY GENERAL.
YoUR Committee do not find any positive law
which binds the judges of the courts in Westminster
Hall publicly to give a reasoned opinion from the
bench, in support of their judgment upon matters that
are stated before them. But the course hath preyailed from the oldest times. It hath been so general and so uniform, that it must be considered as the law of the land. It has prevailed, so far as we
can discover, not only in all the courts which now
exist, whether of law or equity, but in those which
have been suppressed or disused, such as the Court
* See the Appendix, No. I.
? ? ? ? 42 IMPEACHMENT OF' WARREN HASTINGS.
of Wards andsthe Star Chamber. An author quoted
by Rushworth, speaking of the constitution of that
chamber, says, -" And so it was resolved by the Judg.
es, on reference made to them; and their opinion, after
deliberate hearing, and view of former precedents, was
published in open court. " It appears elsewhere in
the same compiler that all their proceedings were
public, even in deliberating previous to judgment.
The Judges in their reasonings have always been
used to observe on the arguments employed by the
counsel on either side, and -on the authorities cited
by them, -assigning the grounds for rejecting the
authorities which they'reject, or for adopting those
to which they adhere, or for a different construction
of law, according to the occasion. This publicity,
not only of decision, but of deliberation, is not confined to their several courts, whether of law or equity,
whether above or at. Nisi Prius; but it prevails where
they are assembled, in the Exchequer Chamber, or at
Seijeants' Inn, or wherever matters come before the
Judges collectively for consultation and revision. It
seems to your Committee- to be moulded. in the essential, frame and constitution of British judicature.
Your Committee conceives that the English jurisprudence has not any other sure foundation, nor, consequently, the lives and properties of the subject any sure hold, but in the maxims, rules, and principles,
and juridical traditionary line of decisions contained
in the notes taken, and from time to time published,
(mostly under the sanction of the Judges,) called Reports.
In the early periods of the law it appears to your'Committee that a course still better had been pur* Rushworth, Vol. II. p. 475, et passim.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 43
sued, but grounded on the same principles; and that
no other cause than the multiplicity of business prevented its continuance. "Of ancient time," says
Lord Coke, "in cases of difficulties, either criminal
or civil, the reasons and causes of the judgment were
set down upon the record, and so continued in the
reigns of Ed. I. and Ed. II. , and then there was no
need of reports; but ill the reign of Ed. III. (when
the law was in its height) the causes and reasons of
judgments, in respect of the multitude of them, are
not set down in the record, but then tie great casuists
and reporters of eases (certain grave and sad men)
published:the cases, and the reasons and causes -of the
judgments or resolutions, which, from the beginning
of the reign of Ed. III. and since, we have in print.
But these also, though. of great credit and excellent
use in their kind, yet:far underneath the authority
of the Parliament Rolls, reporting the acts, judgments,
and resolutions of that highest court. ".
Reports, though of a kind less. authentic than the
Year Books, to which Coke alludes, have continued
without. interruption to the:time in which we live.
It is well known that the elementary treatises of law,
and the dogmatical treatises of English jurisprudence,
whether they appear under the names of institutes,
digests, or commentaries, do not rest on the authority
of the supreme power, like the books called the Institute, Digest, Code, and authentic collations in the Roman law. With us doctrinal books of that description have little or no authority, other than as they are supported by the adjudged cases and reasons given at
one time or other from the bench; and to these they
constantly refer. This appears in Coke's Institutes,
* Coke, 4 Inst. p. 5.
? ? ? ? 44 IMPEACHMENT OF WARREN HASTINGS.
in Comyns's Digest, and in all. books of that nature.
To give judgment privately is to put an end to reports; and to put an end to reports is to put an end
to the law of England. It was fortunate for the Constitution of this kingdom, that, in the judicial proceedings in the case of ship-money, the Judges did not then venture to depart from the ancient course.
They gave and they argued their judgment in open
court. * Their reasons were publicly given, and the
reasons assigned for their judgment took away all its
authority. The great historian, Lord Clarendon, at
that period a young lawyer, has told us that the Judges gave as law from the bench what every man in
the hall knew not to be law.
This publicity, and this mode of attending the decision with its grounds, is observed not only in the
tribunals where the Judges preside in a judicial capacity, individually or collectively, but where they are
consulted by the Peers on the law in all writs of error
brought from below. In the opinion they give of the
matter assigned as error, one at least of the Judges
argues the questions at large. He argues them publicly, though in the Chamber of Parliament, - and in
such a manner, that every professor, practitioner, or
student of the law, as well as the parties to the suit,
may learn the opinions of all the Judges of all the
courts:upon those points in which the Judges in one
court might be mistaken.
Your Committee is of opinion that nothing better could be devised by human wisdom than argued
judgments publicly delivered for preserving unbroken
the great traditionary body of the law, and for mark
* This is confined to the judicial opinions in Hampden's case.
It does not take in all the extra-judicial opinions.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 45
Ing, whilst that great. body remained unaltered, every
variation in the application and the construction of
particular parts, for pointing out the ground of each
variation, and for enabling-the learned of the bar and
all intelligent laymen to distinguish those changes
made for the advancement of a more solid, equitable,
and substantial justice, according to the variable nature of human affairs, a progressive experience, and
the improvement of moral philosophy, from those hazardous changes in any of the ancient opinions and decisions which may arise from ignorance, from levity,
from false refinement, from a spirit of innovation, or
from other motives, of a nature not more justifiable.
Your Committee, finding this course of proceeding
to be concordant with the character and spirit of our
judicial proceeding, continued from time immemorial, supported by arguments of sound theory, and confirmed by effects highly beneficial, could not see without uneasiness, in. this great trial for Indian offences; a marked inlnovation. Against their reiterated requests, remonstrances, and protestation of the Judges were always taken secretly. Not only
the constitutional publicity for. which we contend was
refused to the request and entreaty of your Committee, but when a noble peer, on the 24th day of June,
1789, did in open court declare that he would then
propose some questions to the Judges in that place,
and hoped to receive their answer openly, according
to the approved good customs of that and of other
courts, the Lords instantly put a stop to the further proceeding by an immediate adjournment to the
Chamber of Parliament. Upon this adjournment, we
find by the Lords' Journals, that the House, on being
resumed, ordered, that" it should resolve itself into
~.
? ? ? ? 46 IMPEACHMENT OF WARREN HASTINGS.
a Committee of the whole House, on Monday next, to
take into consideration what is the'proper manner of
putting questions by tlie Lords to the Judges, and of
their answering the same, in judicial proceedings. "
The House did thereon resolve itself into a committee, from which the Earl of Galloway, on the 29th
of the same month, reported as follows: --" That the
House has, in the trial of Warren Hastings, Esquire,
proceeded in a regular course, in the manner of propounding their questions to the Judges in the Chamber of Parliament, and in receiving their answers to them in the same place. " The resolution was agreed
to by the Lords; but the protest as below was entered thereupon, and supported by strong arguments.
Your Committee remark, that this resolution states
only, that the House had proceeded, in this secret
manner of propounding questions to the Judges and
of receiving their answers, during the trial, and on
matters of debate between the parties, "in a regular
* "Dissentient.
I "1st. Because, by consulting the Judges out of court, in the absence
of the parties, and with shut doors, we have deviated from the most
approved and almost uninterrupted practice of above a century and
a half, and established a precedent not only destructive of the justice
due to the parties at our bar, but materially injurious to the rights
of the community at large, who in cases of impeachments are more
peculiarly interested that all proceedings of this High Court of Parliament should be open and exposed, like all other courts of justice,
to public observation and comment, in order that no covert and private practices should defeat the great,ends of public justice.
- 2dly. Because, from private opinions of the Judges, upon private
statements, which the parties have neither heard nor seen, grounds
of a decision will be obtained which must inevitably affect the cause
at issue at our bar; this mode of proceeding seems to be a violation
of the first principle of justice, inasmuch as we thereby force and confine the opinions of the Judges to our private statement; and through
? ? ? ? REPORT ON THE LORDS' JOURNALS. 47
course. " It does not assert that another course would
not have been as regular. It does not state either
judicial convenience,. principle, or body of precedents
for that regular course. No such body of precedents appear on the Journal, that we could discover.
Seven-and-twenty, at least, in a regular series, are
directly contrary to this regular course. Since the
era of the 29th of June, 1789, no one question has
been admitted to go publicly to the Judges.
This determined and systematic privacy was the
more alarming to. your Committee, because the questions did not (except in that case) originate from
the. Lords for the direction of their own conscience.
These questions, in some material instances, were not
made or allowed by the parties at the bar, nor settled
in open court, but differed materially from what your
Managers contended was the true state of the question, as put and argued by them. They were such as
the Lords thought proper to state for them. Strong
remonstrances produced some alteration in this parthe medium of our subsequent decision we transfer the effect of those
opinions to the parties, who have been deprived of the right and advantage of being heard by such private, though unintended, transmutation of the point at issue.
M 3dly. Because the prisoners who may hereafter have the misfortune to stand at our bar will be deprived of that consolation which
the Lord High Steward Nottingham conveyed to the prisoner, Lord
Cornwallis, viz. ,' That the Lords have that tender regard of a prisoner at the bar, that they will not suffer a case to be put in his absence, lest it should prejudice him by being wrong stated. '', 4thly. Because unusual mystery and secrecy in our judicial proceedings must tend either to discredit the acqu render the justice of his condemnation doubtful.
ci PORCHESTER.
SUFFOLK AND BERKSHIRE.
LOUGHBOROUGEH. "
? ? ? ? 48 IMPEACHMENT OF WARREN HASTINGS.
ticular; but even after these remonstrances, several
questions were made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent
before this, in which the Peers, on a proposal of the
Commons, or of a less weighty person before their
court, to have the cases publicly referred to the
Judges, and their arguments and resolutions delivered in their presence, absolutely refused. The very
few precedents of such private reference on trials
have been made, as we have observed already, sub
silentio, and without any observation from the parties.
In the precedents we produce, the determination is accompanied with its reasons, and the publicity is colnsidered as the clear, undoubted right of the parties. Your Committee, using their best diligence, have
never been able to form a clear opinion upon the
ground and principle of these decisions. The mere
result, upon each case decided by the Lords, furnished them with no light, from any principle, precedent, or foregone authority of law or reason, to guide them with regard to the next matter of evidence
which they had to offer, or to discriminate what matter ought to be urged or to be set aside: your Com.
mittee not being able to divine whether the particular evidence, which, upon a conjectural principle, they
might choose to abandon, would not appear to this
House, and to the judging world at large, to be admissible, and possibly decisive proof. In these straits.
they had and have no choice, but either wholly to
abandon the prosecution, and of consequence to betray the trust reposed in them by this House, or to
bring forward such matter of evidence as they are
furnished with from sure sources of authenticity, and
? ? ? ? REPORT ON THE LORDS' JOURNALS. 49
which in their judgment, aided by the best advice
they could obtain, is possessed of a lnoral aptitude
juridically to prove or to illustrate the case which
the House had given them in charge.
MODE OF PUTTING THE QUESTIONS.
WHEN your Committee came to examine into those
private opinions of the Judges, they found, to their
no small concern, that the mode both of putting the
questions to the Judges, and their answers, was still
more unusual and unprecedented than the privacy
with which those questions were given and resolved.
This mode strikes, as we apprehend, at the vital
privileges of the House. For, with the single exception of the first question put to the Judges in 1788,
the case being stated, the questions are raised directly, specifically, and by name, on those privileges: that is, What evidence is it competent for the Managers
of the House of Commons to produce? We conceive
that it was not proper, nor justified by a single precedent, to refer to the Judges of the inferior courts any question, and still less for them to decide in their
answer, of what is or is not competent for the House
of Commons, or for any committee acting under
their authority, to do or not to do, in any instance or
respect whatsoever. This new and unheard-of course
can have no other effect than to subject to the discretion of the Judges the Law of Parliament and the privileges of the House of Commons. and in a great
measure the judicial privileges of the Peers themselves. : any intermeddling in which on their part we conceive to be a dangerous and unwarrantable assumption of power. It is contrary to what has been VOL. XI 4
? ? ? ? 50 IMPEACHMENT OF WARREN HASTINGS. .
-declared by Lord Coke himself, in a passage before
quoted, to be the duty of the Judges, - and to what
the Judges of former times have confessed to be their
duty, on occasions to which he refers in the time of
Henry VI. And we are of opinion that the conduct
of those sages of the law, and others their successors,
who have been thus diffident and cautious in giving
their opinions upon matters concerning Parliament,
and particularly on the privileges of the House of
Commons, was laudable in the example, and ought
to be followed: particularly the principles upon
which the Judges declined to give their opinions in
the year 1614. It appears by the Journals of the
Lords, that a question concerning the law relative to
impositions having been put to the Judges, the proceeding was as follows. "Whether the Lords the Judges shall be heard deliver their opinion touching
the point of impositions, before further consideration
be had of answer to be returned to the lower House
concerning the message from them lately received.
Whereupon the number of the Lords requiring to
hear the Judges' opinions by saying' Content' exceeding the others which said' Non Content,' the Lords the Judges, so desiring, were permitted to withdraw
themselves into the Lord Chancellor's private rooms,
where having remained awhile and advised together,
they returned into the House, and, having taken their
places, and standing discovered, did, by the mouth
of the Lord Chief-Justice of the King's Bench, humbly desire to be forborne at this time, in this place,
to deliver any opinion in this case, for many weighty
and important reasons, which his Lordship delivered
with great gravity and eloquence; concluding that
himself and his brethren are upon particulars in ju
? ? ? ? REPORT ON THE LORDS' JOURNALS. 51
dicial course to speak and judge between the King's
Majesty and his people, and likewise between his
Highness's subjects, and inlno case to be disputants
on any side. "
Your Committee do not find anything which,
through inadvertence or design, had a tendency to
subject the law and course of Parliament to the
opinions of the Judges of the inferior courts, from
that period until- the 1st of James II. The trial of
Lord Delamere for high treason was had by'special
commission before the Lord High Steward: it was
before the act which directs that all peers should be
summoned to such trials. This was not a trial in
full Parliament, in which case it was then contended
for that the Lord High Steward was the judge of the
law, presiding in the Court, but had no vote in the
verdict, and that the Lords were triers only, and had
no vote in the judgment of law. This. was looked
on as the course, where the trial was not in full
Parliament, in which latter case there was no doubt
but that the Lord High Steward made a part of the
body of the triers, and that the whole House was
the judge. * In this cause, after the evidence for the
Crown had been closed, the prisoner prayed the Court
to adjourn. The Lord High Steward doubted his
power to take that step in that stage of the trial; and
the question was, " Whether, the trial not being in
full Parliament, when the prisoner is upon his trial,
and evidence for the King is given, the Lords being
(as it may be termed) charged with the prisoner, the
Peers may separate for a time, which. is the consequence of an adjournment? " The Lord High Steward doubted of his power to adjourn the Court. The * See the Lord High Steward's speech on that head, 1st James IL
? ? ? ? 52 IMPEACHMENT OF WARREN HASTINGS.
case was evidently new, and his Grace proposed to
have the opinion of the Judges upon it. The Judges
in consequence offering,to withdraw into the Exchequer Chamber, Lord Falconberg "insisted that the question concerned the privilege of the Peerage
only, and conceived that the Judges are not concerned
to make any determination in that matter; and being
such a point of privilege, certainly the inferior courts
have no right to determine it. " It was insisted, therefore, that the Lords triers should retire with the Judges. The Lord High Steward thought differently, and opposed this motion; but finding the other opinion generally prevalent, he gave way, and the
Lords triers retired, taking the Judges to their consult. When the Judges returned, they delivered their opinion in open court. Lord Chief-Justice Herbert spoke for himself and the rest of the Judges. After observing on the novelty of the case, with a
temperate and becoming reserve with regard to the
rights of Parliaments, he marked out the limits of
the office of the inferior Judges on such occasions,
and declared, -" All that we, the Judges, can do is to
acquaint your Grace and the noble Lords what the law
is in the inferior courts in cases of the like nature, and
the reason of the law in those points, and then leave
the jurisdiction of the court to its proper judgment. "
The Chief-Justice concluded his statement' of the
usage below, and his observations on the difference
of the cases of a peer tried in full Parliament and
by a special commission, in this manner: -" Upon
the whole matter, my Lords, whether the Peers being
judges in the one and not in the other instance alters
the case, or whether the reason of the law in inferior
courts why the jury are not permitted to separate
? ? ? ? REPORT ON THE LORDS' JOURNALS. ,5~
until they have discharged themselves of their verdict may have any influence on this case, where that
reason seems to fail, the prisoner being to be tried by
men of unquestionable honor, we cannot presume so far
as to make any determination, in a case which is both
new to us and of great consequence in itself; but think
it the proper way for us, having laid matters as we
conceive them before your Grace and my Lords, to
submit the jurisdiction of your own court to your own
determination. "
It appears to your Committee, that the Lords, who
stood against submitting the course of their high
court to the inferior Judges, and that the Judges,
who, with a legal and constitutional discretion, declined giving any opinion in this matter, acted as
became them; and your Committee sees no reason
why the Peers at this day should be less attentive
to the rights of their court with regard to an exclusive judgment on their own proceedings or to the
rights of the Commons acting as accusers for the
whole commons of Great Britain in that court, or
why the Judges should be less reserved in deciding
upon any of these points of high Parliamentary privilege, than the Judges of that and the preceding periods. This present case is a proceeding in full Parliament, and not like the case under the commission in the time of James II. , and still more evidently out
of the province of Judges in the inferior courts.
All the precedents previous to the trial of Warren
Hastings, Esquire, seem to your Committee to be
uniform. The Judges had constantly refused to give
an opinion on any of the powers, privileges, or competencies of either House. But in the present instance your Committee has found, with great con
? ? ? ? 54 IMPEACHMENT OF WARREN HASTINGS.
cern, a further matter of innovation. Hitherto the
constant practice has been to put questions to the
Judges but in the three following ways: as, 1st, A
question of pure abstract law, without reference to
any case, or merely upon an A. B. case stated to
them; 2dly, To the legal construction of some act
of Parliament; 3dly, To. report the course of proceeding in the courts below upon an abstract case. Besides these three, your Committee knows not of
a single example of any sort, during the course of
any judicial proceeding at the bar of the House
of Lords, whether the prosecution has been by indictmentj by information from the Attorney-General, or by impeachment of the House of Commons.
In the present trial, the Judges appear to your
Committee not to have given their judgment on
points of law, stated as such, but to have in effect
tried the cause, in the whole course of it,- with one
instance to the contrary.
The Lords have stated no question of general law,
no question on the construction of an act of Parliament, no question concerning the practice of the courts below. They put the whole gross case and
matter in question, with all its circumstances, to the
Judges. They have, for the first time, demanded of
them what particular person, paper, or document
ought or ought not to be produced before them by
the Managers for the Commons of Great Britain: for
instance, whether, under such an article, the Bengal Consultations of such a day, the examination
of Rajah Nundcomar, and the like. The operation
of this method is in substance not only to make the
Judges masters of the whole process and conduct of
the trial, but through that medium to transfer to
? ? ? ? REPORT ON THE LORDS' JOURNALS. 55
them the ultimate judgment on the cause itself and
its merits.
The Judges attendant on the Court of Peers hitherto have not been supposed to know the particulars
and minute circumstances of the cause, and must
therefore be incompetent to determine upon those
circumstances. The evidence taken is not, of course,
that we can find, delivered to them; nor do we find
that in fact any order has been made for that purpose,
even supposing that the evidence could at all regularly be put before them. They are present in, court,
not to hear the trial, but solely to advise in matter
of law; they cannot take. upon themselves to say anything about the Bengal Consultations, or to know
anything of Rajah Nundcomar, of Kelleram, or of
Mr. Francis, or Sir John Clavering.
That the House may be the more fully enabled to
judge of the nature and tendency of thus putting
the question specifically, and'on the gross case, your
Committee thinks fit here to insert one of those questions, reserving a discussion of its particular merits
to another place. It was stated on the 22d of April,
1790, " On that day the Managers proposed to show
that Kelleram fell into great balances with the East
India Company, in consequence of his appointment. "
It is so stated in the printed Minutes (p. 1206). But
the real tendency and gist of the proposition is not
shown. However, the question was put, " Whether itbe 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, Esquire, let the lands mentioned in the
said sixth article of charge to Kelleram fell into arrear
and was deficient; and whether, if proof were offered
? ? ? ? 56 IMPEACHMENT OF WARREN HASTINGS.
that the rent fell into arrear immediately after theletting, the evidence in that case would be competent? "
The Judges answered, on the 27th of the'said month,
as follows: -- " It is not competent for the Managers for
the House of 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. "
The House will observe that on the question two
cases of competence were put: the first, on the coin
petence of Managers for the House of Commons to
give the evidence supposed to be offered by them, but
which we deny to have been offered in the manner
and for the purpose assumed in this question; the
second is in a shape apparently more abstracted, and
more nearly approaching to Parliamentary regularity,
-- on the competence of the evidence itself, in the
case of a supposed circumstance being superadded.
The Judges answered only the first, denying flatly the
competence of the Managers. As to the second, the
competence of the supposed evidence, they are profoundly silent. Having given this blow to our competence, about the other question, (which was more within their province,) namely, the competence of
evidence on a case hypothetically stated, they give
themselves no trouble. The Lords on that occasion
rejected the whole evidence. On the face of the
Judges' opinion it is a determination on a case, the
trial of which was not with them, but it contains no
rule or principle of law, to which alone it was their
duty to speak. *
* All the resolutions of the Judges, to the time of the reference to
the Committee, are in the Appendix, No. 2.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 57
These essential innovations tend, as your Committee conceives, to make an entire alteration in the constitution and in the purposes of the High Court
of Parliament, and even to reverse the ancient relations between the Lords and the Judges. They tend wholly to take away from the Commons the benefit
of making good their case before the proper judges,
and submit this high inquest to the inferior courts.
Your Committee sees no reason why, on the same
principles and precedents, the Lords may not terminate their proceedings in this, and in all future trials, by sending the whole body of evidence taken before
them, in the shape of a special verdict, to the Judges,
and may not demand of them, whether they ought,
on the whole matter, to acquit or condemn the prisoner; nor can we discover any cause that should hinder them [the Judges] from deciding on the accumulative body of the evidence as hitherto they have done in its parts, and from dictating the existence or
non-existence of a misdemeanor or other crime in the
prisoner as they think fit, without any more reference to principle or precedent of law than hitherto they have thought proper to apply in determining on the
several parcels of this cause.
YouP Committee apprehends that very serious inconveniencies and mischiefs may hereafter arise from a practice in the House of Lords of considering itself
as unable to act without the judges of the inferior
courts, of implicitly following their dictates, of adhering with a literal precision to the very words of
their responses, and putting them to decide on the
competence of the Managers for the Commons, the
competence of the evidence to be produced, who are
to be permitted to appear, what questions are to be
? ? ? ? 58 IMPEACHMENT OF WARREN HASTINGS.
asked of witnesses, and indeed, parcel by parcel,: on
the whole of the gross case before them, - as well as
to: determine upon the order, method, and process of
every part of their proceedings. The judges of the
inferior courts are by law rendered independent of
the Crown. But this, instead of a benefit to the subject, would be a grievance, if no way was left of producing a responsibility. If the Lords cannot or will
not act without the Judges, and if (which God forbid! )
the Commons should find it at any time hereafter
necessary to impeach them before the Lords, this
House would find the Lords disabled in their functions, fearful of giving any judgment on matter of
law or admitting any proof of fact without them [the
Judges]; and having once assumed the rule of proceeding and practice below as their rule, they must
at every instant resort, for their means of judging, to
the authority of those whom they are appointed to
judge.
Your Committee must always act with regard to
men as they are. There are no privileges or exemptions from the infirmities of our common nature.
We are sensible that all men, and without any evil
intentions, will naturally wish to extend their own jurisdiction, and to weaken all the power by which they
may be limited and controlled. It is the business of
the House of Commons to counteract this tendency.
This House had given to its Managers no power to
abandon its privileges and the rights of its constituents. ' They were themselves as little disposed as
authorized to make this surrender. They are members of this House, not only charged with the management'of this impeachment, but partaking of a general trust inseparable from the Colnmoils of Great Britain
? ? ? ? . REPORT ON THE LORDS' JOURNALS. . 59
in Parliament assembled, one of whose principal functions and duties it is to be observant of the courts of justice, and to take due: care that none of them, from
the lowest to the highest,. shall pursue new courses,
unknown to the laws and constitution of this kingdom,
or to equity, sound legal policy, or substantial justice.
Your Committee were not sent into Westminster
Hall for the purpose of contributing in their persons,
and under the authority of the House, to change the
course or law of Parliament, which had continued unquestioned for at least four hundred years. Neither was it any part of their mission to suffer precedents
to be established, with relation to the law and rule
of evidence, which tended in their opinion to shut up
forever all the avenues to justice. They were not to
consider a rule of evidence as a means of concealment.
They were not, without a struggle, to suffer any subtleties to prevail which would render a process in Parliament, not the terror, but the protection, of all
the fraud and violence arising from the abuse of British power in the East. Accordingly, your Managers contended with all their might, as their predecessors
in the same place had contended with more ability and
learning, but not with more zeal and more firmness,
against those dangerous innovations, as they were
successively introduced: they held themselves bound
constantly to protest, and in one or two instances
they did protest, in discourses of considerable length,
against those private, and, for what they could find,
unargued judicial opinions, which must, as they fear,
introduce by degrees the miserable servitude which
exists where the law is uncertain or unlknown.
? ? ? ? 60 IMPEACHMENT OF WARREN HASTINGS.
DEBATES ON EVIDENCE.
THE chief debates at the bar, and the decisions of
the Judges, (which we find in all cases implicitly
adopted, in all their extent and without qualification, by the Lords,) turned upon evidence. Your
Committee, before the trial began, were apprised, by
discourses which prudence did not permit them to
neglect, that endeavors would be used to embarrass
them in their proceedings by exceptions against evidence; that the judgments -and opinions of the courts
below would be'resorted to on this subject; that there
the rules of evidence were precise, rigorous, and inflexible; and that the counsel for the criminal would
endeavor to introduce the same rules, with the same
severity and exactness, into this trial. Your Committee were fully assured, and were resolved strenuously to contend, that no doctrine or rule of law, much less the practice of any court, ought to have
weight or authority in Parliament, further than as
such doctrine, rule, or practice is agreeable to the
proceedings in Parliament, or hath received the sanction of approved precedent there, or is founded on the
immutable principles of substantial justice, without
which, your Committee readily agrees, no practice in
any court, high or low, is proper or fit to be maintained.
In this preference of the rules observed in the
High Court of Parliament, preeminently superior to
all the rest, there is no claim made which the inferior
courts do not make, each with regard to itself. It is
well known that the rules of proceedings in these
courts vary, and some of them very essentially; yet
the usage of each court is the law of the court, and it'
? ? ? ? REPORT ON THE LORDS' JOURNALS. 61
would be vain to object to any rule in any court, that
it is not the rule of another court. For instance: as
a general rule, the Court of King's Bench, on trials
by jury, cannot receive depositions, but must judge
by testimony viva voce. The rule of the Court of
Chancery is not only not the same, but it is the reverse,
and Lord Hardwicke ruled accordingly. ' The constant and established proceedings of this Court," said
this great magistrate, " are on written evidence, like
the proceedings on the Civil and Canon Law. This
is the course of the Court, and the course of the
Court is the law of the Court. " *
Your Managers were convinced that one of the
principal reasons for which this cause was brought into Parliament was the danger that in inferior. courts
their rule would be formed naturally upon their ordinary experience, and the exigencies of the cases
which in ordinary course came before them. This
experience, and the exigencies of these cases, extend
little further than the concerns of a people comparatively in a narrow vicinage, a people of the same or
nearly the same language, religion, manners, laws,
and habits: with them an intercourse of every kind
was easy.
These rules of law in most cases, and the practice
of the courts in all, could not be easily applicable to
a people separated from Great Britain by a very great
part of the globe, - separated by manners, by principles of religion, and of inveterate habits as strong as
nature itself, still more than by the circumstance of
local distance. Such confined and inapplicable rules
would be convenient, indeed, to oppression, to extortion, bribery, and corruption, but ruinous to the peo* Atkyns, Vol.
t Id. , Vol. XI. p. 262.
? ? ? ? 36 IMPEACHMENT OF WARREN HASTINGS.
variations from it there might be in practice) to have
been so clearly established at a more early period,
that all the Judges of England resolved in Lord Morley's trial, in the year 1666, (about twelve years before the observation of Lord Nottingham,) on a supposition that the trial, should be actually concluded, and the Lords retired to the Chamber of Parliament to consult
on their verdict, that even in that case, (much stronger
than the observation of your Committee requires for
its support,) if their opinions should then be demand
ed by the Peers, for the information of their private
conscience, yet they determined that they should be
given in public. This resolution is in itself so solemn, and is so bottomed on constitutional principle
and legal policy, that your Committee have thought
fit to insert it verbatim in their Report, as they relied
upon it at the bar of the Court, when they contended
for the same publicity.
" It was resolved, that, in case the Peers who are
triers, after the evidence given, and the prisoner withdrawn, and they gone to consult of the verdict, should
desire to speak with any of the Judges, to have their
opinion upon any point of law, that, if the Lord
Steward spoke to us to go, we should go to them;
but when the Lords asked us any question, we should
not deliver any private opinion, but let them know we
were not to deliver any:private opinion without conference with the rest of the Jiudges, and that to be done openly in court; and this (notwithstanding the precedent in
the case of the Earl of Castlehaven) was thought prudent
in regard of ourselves, as well as for the avoiding suspicion which might grow by private opinions: ALL resolutions of Judges being AL WA YS done in public. " *
* Kelyng's Reports, p. 54.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 37
The Judges in this resolution overruled the authority of the precedent, which militated against the
whole spirit of their place and profession. Their
declaration was without reserve or exception, that
"' all resolutions of the Judges are always done in
public. " These Judges (as should be remembered
to their lasting honor) did not think it derogatory
fromn their dignity, nor from their duty to the House
of Lords, to take such measures concerning the publicity of their resolutions as should secure them from. suspicion. They knew that the mere circumstance
of privacy in a judicature, where any publicity is
in use, tends to beget suspicion and jealousy. Your
Comnlittee is of opinion that the honorable policy of
avoiding suspicion by avoiding privacy is not lessened by anything which exists in the present time
and in the present trial.
Your Committee has here to remark, that this
learned Judge seemed to think the case of Lord
Audley (Castlehaven) to be more against him than
in truth it was. The precedents were as follow.
The opinions of the Judges were taken three times:
the first time by the Attorney-General at Serjeants'
Inn, antecedent to the trial; the last time, after the
Peers had retired to consult on their verdict; the
middle time was during the trial itself: and here the
opinion was taken in open court, agreeably to what
your Committee contends to have been the usage ever since this resolution of the Judges. * What was done before seemed to have passed sub silentio, and
possibly through mere inadvertence.
Your Committee observes, that the precedents by
them relied on were furnished from times in which
* Rushworth, Vol. II. pp. 93, 94, 95, 100.
? ? ? ? 88 IMPEACHMENT OF WARREN HASTINGS.
the judicial proceedings in Parliament,, and -in' all our
courts, had obtained a very regular form. . They were
furnished at a period in which Justice Blackstone
remarks that more laws were passed of importance
to the rights and liberties of the subject than in any
other. These precedents lean all one way, and carry
no marks of accommodation to the variable spirit of
the times and of political occasions. They are the
same before and after the Revolution. They are the
same through five reigns. The great men who presided in the tribunals which furnished these examples were in opposite political interests, but all distinguished for their ability, integrity, and learning. The Earl of Nottingham, who, was the first on the
bench to promulgate this publicity as a rule, has not
left us to seek the principle in the case: that very
learned man considers the publicity of the questions
and answers as a matter of justice, and of justice favorable to the prisoner. In the case of Mr. Hastings,
the prisoner's counsel did not join your Committee
in their endeavors to obtain the publicity we demanded. Their reasons we can only conjecture.
But your Managers, acting for this iobuse, were
not the less bound to see that the due Parliamentary course should be pursued, even when it is most
favorable to those whom they impeach. If it should
answer the purposes of one prisoner to waive the
rights which belong to all prisoners, it was the duty
of your Managers to protect those general rights
against that particular prisoner. It was still more
their duty to endeavor that their own questions
should not be erroneously stated, or cases put which
varied from those which they argued, or opinions given in a manner not supported by the spirit of our
? ? ? ? REPORT ON THE LORDS' JOURNALS. 39
laws and institutions or by analogy with the practice of all our courts.
Your Committee, much in the dark about a matter
in which it was so necessary that they should receive
every light, have heard, that, in debating this matter
abroad, it has been objected, that many of the precedents on which we most: relied were furnished in the
courts of the Lord High Steward, and not in trials
where the Peers were Judges, - and that the Lord
HIigh Steward not having it in ihis power to retire
with the juror Peers, the Judges' opinionsj from necessity, not from equity to the parties, were given
before that magistrate.
Your Committee thinks it scarcely possible that
the Lords could be influenced by such a feeble argument. For, admitting the fact to have been as supposed, there is no sort of reason why so uniform a course of precedents, in a legal court composed of a
peer for judge and peers, for triers, a course so favorable to all parties and to equal justice, a course
in concurrence with the procedure of all our other
courts, should not have the greatest authority over
their practice in every trial before the whole body of
the peerage.
The Earl of Nottingham, who acted as High Steward in one of these commissions, certainly knew what
he was saying. He gave no such reason. His argument for the publicity of the Judges' opinions did not
turn at all on the nature of his court, or of his office
in tliat court. It rested on the equity of the principle, and on the fair dealing due to the prisoner.
Lord Somers was in no such court; yet his declaration is full as strong. He does not, indeed, argue
the point, as the Earl of Nottingham did, when he
? ? ? ? 40 IMPEACHMENT OF WARREN HASTINGS.
considered it as a new case. Lord Somers considers
it as a point quite settled, and no longer standing in
need of being supported by reason or precedent.
But it is a mistake that the precedents stated in
this Report are wholly drawn from proceedings in
that kind of court. Only two are cited which are
furnished from a court constituted in the manner
supposed. The rest were in trials by all the peers,
and not by a jury of peers with an High Steward.
After long discussions with the Peers on this subject, " the Lords' committees in a conference told them (the committee of this House, appointed to a
conference on the matter) that the High Steward is
but Speaker pro tempore, and giveth his vote as well
as the other lords: this changeth not the nature of
the court. And the Lords declared, that they have
power enough to proceed to trial, though the King
should not name an High Steward. " On the same
day," it is declared and ordered by the Lords Spiritual
and Temporal in Parliament assembled, that the office
of High Steward on trials of peers upon impeachments
is not necessary to the House of Peers, but that the
Lords may proceed in such trials, if an High Steward
is not appointed according to their humble desire. "*
To put the matter out of all doubt, and to remove
all jealousy on the part of the Commons, the commission of the Lord High Steward was then altered. These rights, contended for by the Commons in
their impeachments, and admitted: by the Peers, were
asserted in the proceedings preparatory to the trial of
Lord Stafford, in which that long chain of uniform
precedents with regard to the publicity of the Judges'
opinions in trials begins.
* Foster's Crown Law, p. 145.
? ? ? ? REPORT ON, THE LORDS' JOURNALS. 41
For these last citations, and some of the remarks,
your Committee are indebted to the learned and upright Justice Foster. They have compared them
with the Journals, and find them correct. The same
excellent author proceeds to demonstrate that whatever he says of trials by impeachment is equally
applicable to trials before the High Steward on indictment; and consequently, that there is no ground
for a distinction, with regard to the public declaration
of the Judges' opinions, founded on the inapplicability
of either of these cases to the other. The argument
on this whole matter is so satisfactory that your Committee has annexed it at large to their Report. * As
there is no difference in fact between these trials,
(especially since the act which provides that all the
peers shall be summoned to the trial of a peer,) so
there is no difference in the reason and principle of
the publicity, let the matter of the Steward's jurisdiction be as it may.
PUBLICITY GENERAL.
YoUR Committee do not find any positive law
which binds the judges of the courts in Westminster
Hall publicly to give a reasoned opinion from the
bench, in support of their judgment upon matters that
are stated before them. But the course hath preyailed from the oldest times. It hath been so general and so uniform, that it must be considered as the law of the land. It has prevailed, so far as we
can discover, not only in all the courts which now
exist, whether of law or equity, but in those which
have been suppressed or disused, such as the Court
* See the Appendix, No. I.
? ? ? ? 42 IMPEACHMENT OF' WARREN HASTINGS.
of Wards andsthe Star Chamber. An author quoted
by Rushworth, speaking of the constitution of that
chamber, says, -" And so it was resolved by the Judg.
es, on reference made to them; and their opinion, after
deliberate hearing, and view of former precedents, was
published in open court. " It appears elsewhere in
the same compiler that all their proceedings were
public, even in deliberating previous to judgment.
The Judges in their reasonings have always been
used to observe on the arguments employed by the
counsel on either side, and -on the authorities cited
by them, -assigning the grounds for rejecting the
authorities which they'reject, or for adopting those
to which they adhere, or for a different construction
of law, according to the occasion. This publicity,
not only of decision, but of deliberation, is not confined to their several courts, whether of law or equity,
whether above or at. Nisi Prius; but it prevails where
they are assembled, in the Exchequer Chamber, or at
Seijeants' Inn, or wherever matters come before the
Judges collectively for consultation and revision. It
seems to your Committee- to be moulded. in the essential, frame and constitution of British judicature.
Your Committee conceives that the English jurisprudence has not any other sure foundation, nor, consequently, the lives and properties of the subject any sure hold, but in the maxims, rules, and principles,
and juridical traditionary line of decisions contained
in the notes taken, and from time to time published,
(mostly under the sanction of the Judges,) called Reports.
In the early periods of the law it appears to your'Committee that a course still better had been pur* Rushworth, Vol. II. p. 475, et passim.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 43
sued, but grounded on the same principles; and that
no other cause than the multiplicity of business prevented its continuance. "Of ancient time," says
Lord Coke, "in cases of difficulties, either criminal
or civil, the reasons and causes of the judgment were
set down upon the record, and so continued in the
reigns of Ed. I. and Ed. II. , and then there was no
need of reports; but ill the reign of Ed. III. (when
the law was in its height) the causes and reasons of
judgments, in respect of the multitude of them, are
not set down in the record, but then tie great casuists
and reporters of eases (certain grave and sad men)
published:the cases, and the reasons and causes -of the
judgments or resolutions, which, from the beginning
of the reign of Ed. III. and since, we have in print.
But these also, though. of great credit and excellent
use in their kind, yet:far underneath the authority
of the Parliament Rolls, reporting the acts, judgments,
and resolutions of that highest court. ".
Reports, though of a kind less. authentic than the
Year Books, to which Coke alludes, have continued
without. interruption to the:time in which we live.
It is well known that the elementary treatises of law,
and the dogmatical treatises of English jurisprudence,
whether they appear under the names of institutes,
digests, or commentaries, do not rest on the authority
of the supreme power, like the books called the Institute, Digest, Code, and authentic collations in the Roman law. With us doctrinal books of that description have little or no authority, other than as they are supported by the adjudged cases and reasons given at
one time or other from the bench; and to these they
constantly refer. This appears in Coke's Institutes,
* Coke, 4 Inst. p. 5.
? ? ? ? 44 IMPEACHMENT OF WARREN HASTINGS.
in Comyns's Digest, and in all. books of that nature.
To give judgment privately is to put an end to reports; and to put an end to reports is to put an end
to the law of England. It was fortunate for the Constitution of this kingdom, that, in the judicial proceedings in the case of ship-money, the Judges did not then venture to depart from the ancient course.
They gave and they argued their judgment in open
court. * Their reasons were publicly given, and the
reasons assigned for their judgment took away all its
authority. The great historian, Lord Clarendon, at
that period a young lawyer, has told us that the Judges gave as law from the bench what every man in
the hall knew not to be law.
This publicity, and this mode of attending the decision with its grounds, is observed not only in the
tribunals where the Judges preside in a judicial capacity, individually or collectively, but where they are
consulted by the Peers on the law in all writs of error
brought from below. In the opinion they give of the
matter assigned as error, one at least of the Judges
argues the questions at large. He argues them publicly, though in the Chamber of Parliament, - and in
such a manner, that every professor, practitioner, or
student of the law, as well as the parties to the suit,
may learn the opinions of all the Judges of all the
courts:upon those points in which the Judges in one
court might be mistaken.
Your Committee is of opinion that nothing better could be devised by human wisdom than argued
judgments publicly delivered for preserving unbroken
the great traditionary body of the law, and for mark
* This is confined to the judicial opinions in Hampden's case.
It does not take in all the extra-judicial opinions.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 45
Ing, whilst that great. body remained unaltered, every
variation in the application and the construction of
particular parts, for pointing out the ground of each
variation, and for enabling-the learned of the bar and
all intelligent laymen to distinguish those changes
made for the advancement of a more solid, equitable,
and substantial justice, according to the variable nature of human affairs, a progressive experience, and
the improvement of moral philosophy, from those hazardous changes in any of the ancient opinions and decisions which may arise from ignorance, from levity,
from false refinement, from a spirit of innovation, or
from other motives, of a nature not more justifiable.
Your Committee, finding this course of proceeding
to be concordant with the character and spirit of our
judicial proceeding, continued from time immemorial, supported by arguments of sound theory, and confirmed by effects highly beneficial, could not see without uneasiness, in. this great trial for Indian offences; a marked inlnovation. Against their reiterated requests, remonstrances, and protestation of the Judges were always taken secretly. Not only
the constitutional publicity for. which we contend was
refused to the request and entreaty of your Committee, but when a noble peer, on the 24th day of June,
1789, did in open court declare that he would then
propose some questions to the Judges in that place,
and hoped to receive their answer openly, according
to the approved good customs of that and of other
courts, the Lords instantly put a stop to the further proceeding by an immediate adjournment to the
Chamber of Parliament. Upon this adjournment, we
find by the Lords' Journals, that the House, on being
resumed, ordered, that" it should resolve itself into
~.
? ? ? ? 46 IMPEACHMENT OF WARREN HASTINGS.
a Committee of the whole House, on Monday next, to
take into consideration what is the'proper manner of
putting questions by tlie Lords to the Judges, and of
their answering the same, in judicial proceedings. "
The House did thereon resolve itself into a committee, from which the Earl of Galloway, on the 29th
of the same month, reported as follows: --" That the
House has, in the trial of Warren Hastings, Esquire,
proceeded in a regular course, in the manner of propounding their questions to the Judges in the Chamber of Parliament, and in receiving their answers to them in the same place. " The resolution was agreed
to by the Lords; but the protest as below was entered thereupon, and supported by strong arguments.
Your Committee remark, that this resolution states
only, that the House had proceeded, in this secret
manner of propounding questions to the Judges and
of receiving their answers, during the trial, and on
matters of debate between the parties, "in a regular
* "Dissentient.
I "1st. Because, by consulting the Judges out of court, in the absence
of the parties, and with shut doors, we have deviated from the most
approved and almost uninterrupted practice of above a century and
a half, and established a precedent not only destructive of the justice
due to the parties at our bar, but materially injurious to the rights
of the community at large, who in cases of impeachments are more
peculiarly interested that all proceedings of this High Court of Parliament should be open and exposed, like all other courts of justice,
to public observation and comment, in order that no covert and private practices should defeat the great,ends of public justice.
- 2dly. Because, from private opinions of the Judges, upon private
statements, which the parties have neither heard nor seen, grounds
of a decision will be obtained which must inevitably affect the cause
at issue at our bar; this mode of proceeding seems to be a violation
of the first principle of justice, inasmuch as we thereby force and confine the opinions of the Judges to our private statement; and through
? ? ? ? REPORT ON THE LORDS' JOURNALS. 47
course. " It does not assert that another course would
not have been as regular. It does not state either
judicial convenience,. principle, or body of precedents
for that regular course. No such body of precedents appear on the Journal, that we could discover.
Seven-and-twenty, at least, in a regular series, are
directly contrary to this regular course. Since the
era of the 29th of June, 1789, no one question has
been admitted to go publicly to the Judges.
This determined and systematic privacy was the
more alarming to. your Committee, because the questions did not (except in that case) originate from
the. Lords for the direction of their own conscience.
These questions, in some material instances, were not
made or allowed by the parties at the bar, nor settled
in open court, but differed materially from what your
Managers contended was the true state of the question, as put and argued by them. They were such as
the Lords thought proper to state for them. Strong
remonstrances produced some alteration in this parthe medium of our subsequent decision we transfer the effect of those
opinions to the parties, who have been deprived of the right and advantage of being heard by such private, though unintended, transmutation of the point at issue.
M 3dly. Because the prisoners who may hereafter have the misfortune to stand at our bar will be deprived of that consolation which
the Lord High Steward Nottingham conveyed to the prisoner, Lord
Cornwallis, viz. ,' That the Lords have that tender regard of a prisoner at the bar, that they will not suffer a case to be put in his absence, lest it should prejudice him by being wrong stated. '', 4thly. Because unusual mystery and secrecy in our judicial proceedings must tend either to discredit the acqu render the justice of his condemnation doubtful.
ci PORCHESTER.
SUFFOLK AND BERKSHIRE.
LOUGHBOROUGEH. "
? ? ? ? 48 IMPEACHMENT OF WARREN HASTINGS.
ticular; but even after these remonstrances, several
questions were made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent
before this, in which the Peers, on a proposal of the
Commons, or of a less weighty person before their
court, to have the cases publicly referred to the
Judges, and their arguments and resolutions delivered in their presence, absolutely refused. The very
few precedents of such private reference on trials
have been made, as we have observed already, sub
silentio, and without any observation from the parties.
In the precedents we produce, the determination is accompanied with its reasons, and the publicity is colnsidered as the clear, undoubted right of the parties. Your Committee, using their best diligence, have
never been able to form a clear opinion upon the
ground and principle of these decisions. The mere
result, upon each case decided by the Lords, furnished them with no light, from any principle, precedent, or foregone authority of law or reason, to guide them with regard to the next matter of evidence
which they had to offer, or to discriminate what matter ought to be urged or to be set aside: your Com.
mittee not being able to divine whether the particular evidence, which, upon a conjectural principle, they
might choose to abandon, would not appear to this
House, and to the judging world at large, to be admissible, and possibly decisive proof. In these straits.
they had and have no choice, but either wholly to
abandon the prosecution, and of consequence to betray the trust reposed in them by this House, or to
bring forward such matter of evidence as they are
furnished with from sure sources of authenticity, and
? ? ? ? REPORT ON THE LORDS' JOURNALS. 49
which in their judgment, aided by the best advice
they could obtain, is possessed of a lnoral aptitude
juridically to prove or to illustrate the case which
the House had given them in charge.
MODE OF PUTTING THE QUESTIONS.
WHEN your Committee came to examine into those
private opinions of the Judges, they found, to their
no small concern, that the mode both of putting the
questions to the Judges, and their answers, was still
more unusual and unprecedented than the privacy
with which those questions were given and resolved.
This mode strikes, as we apprehend, at the vital
privileges of the House. For, with the single exception of the first question put to the Judges in 1788,
the case being stated, the questions are raised directly, specifically, and by name, on those privileges: that is, What evidence is it competent for the Managers
of the House of Commons to produce? We conceive
that it was not proper, nor justified by a single precedent, to refer to the Judges of the inferior courts any question, and still less for them to decide in their
answer, of what is or is not competent for the House
of Commons, or for any committee acting under
their authority, to do or not to do, in any instance or
respect whatsoever. This new and unheard-of course
can have no other effect than to subject to the discretion of the Judges the Law of Parliament and the privileges of the House of Commons. and in a great
measure the judicial privileges of the Peers themselves. : any intermeddling in which on their part we conceive to be a dangerous and unwarrantable assumption of power. It is contrary to what has been VOL. XI 4
? ? ? ? 50 IMPEACHMENT OF WARREN HASTINGS. .
-declared by Lord Coke himself, in a passage before
quoted, to be the duty of the Judges, - and to what
the Judges of former times have confessed to be their
duty, on occasions to which he refers in the time of
Henry VI. And we are of opinion that the conduct
of those sages of the law, and others their successors,
who have been thus diffident and cautious in giving
their opinions upon matters concerning Parliament,
and particularly on the privileges of the House of
Commons, was laudable in the example, and ought
to be followed: particularly the principles upon
which the Judges declined to give their opinions in
the year 1614. It appears by the Journals of the
Lords, that a question concerning the law relative to
impositions having been put to the Judges, the proceeding was as follows. "Whether the Lords the Judges shall be heard deliver their opinion touching
the point of impositions, before further consideration
be had of answer to be returned to the lower House
concerning the message from them lately received.
Whereupon the number of the Lords requiring to
hear the Judges' opinions by saying' Content' exceeding the others which said' Non Content,' the Lords the Judges, so desiring, were permitted to withdraw
themselves into the Lord Chancellor's private rooms,
where having remained awhile and advised together,
they returned into the House, and, having taken their
places, and standing discovered, did, by the mouth
of the Lord Chief-Justice of the King's Bench, humbly desire to be forborne at this time, in this place,
to deliver any opinion in this case, for many weighty
and important reasons, which his Lordship delivered
with great gravity and eloquence; concluding that
himself and his brethren are upon particulars in ju
? ? ? ? REPORT ON THE LORDS' JOURNALS. 51
dicial course to speak and judge between the King's
Majesty and his people, and likewise between his
Highness's subjects, and inlno case to be disputants
on any side. "
Your Committee do not find anything which,
through inadvertence or design, had a tendency to
subject the law and course of Parliament to the
opinions of the Judges of the inferior courts, from
that period until- the 1st of James II. The trial of
Lord Delamere for high treason was had by'special
commission before the Lord High Steward: it was
before the act which directs that all peers should be
summoned to such trials. This was not a trial in
full Parliament, in which case it was then contended
for that the Lord High Steward was the judge of the
law, presiding in the Court, but had no vote in the
verdict, and that the Lords were triers only, and had
no vote in the judgment of law. This. was looked
on as the course, where the trial was not in full
Parliament, in which latter case there was no doubt
but that the Lord High Steward made a part of the
body of the triers, and that the whole House was
the judge. * In this cause, after the evidence for the
Crown had been closed, the prisoner prayed the Court
to adjourn. The Lord High Steward doubted his
power to take that step in that stage of the trial; and
the question was, " Whether, the trial not being in
full Parliament, when the prisoner is upon his trial,
and evidence for the King is given, the Lords being
(as it may be termed) charged with the prisoner, the
Peers may separate for a time, which. is the consequence of an adjournment? " The Lord High Steward doubted of his power to adjourn the Court. The * See the Lord High Steward's speech on that head, 1st James IL
? ? ? ? 52 IMPEACHMENT OF WARREN HASTINGS.
case was evidently new, and his Grace proposed to
have the opinion of the Judges upon it. The Judges
in consequence offering,to withdraw into the Exchequer Chamber, Lord Falconberg "insisted that the question concerned the privilege of the Peerage
only, and conceived that the Judges are not concerned
to make any determination in that matter; and being
such a point of privilege, certainly the inferior courts
have no right to determine it. " It was insisted, therefore, that the Lords triers should retire with the Judges. The Lord High Steward thought differently, and opposed this motion; but finding the other opinion generally prevalent, he gave way, and the
Lords triers retired, taking the Judges to their consult. When the Judges returned, they delivered their opinion in open court. Lord Chief-Justice Herbert spoke for himself and the rest of the Judges. After observing on the novelty of the case, with a
temperate and becoming reserve with regard to the
rights of Parliaments, he marked out the limits of
the office of the inferior Judges on such occasions,
and declared, -" All that we, the Judges, can do is to
acquaint your Grace and the noble Lords what the law
is in the inferior courts in cases of the like nature, and
the reason of the law in those points, and then leave
the jurisdiction of the court to its proper judgment. "
The Chief-Justice concluded his statement' of the
usage below, and his observations on the difference
of the cases of a peer tried in full Parliament and
by a special commission, in this manner: -" Upon
the whole matter, my Lords, whether the Peers being
judges in the one and not in the other instance alters
the case, or whether the reason of the law in inferior
courts why the jury are not permitted to separate
? ? ? ? REPORT ON THE LORDS' JOURNALS. ,5~
until they have discharged themselves of their verdict may have any influence on this case, where that
reason seems to fail, the prisoner being to be tried by
men of unquestionable honor, we cannot presume so far
as to make any determination, in a case which is both
new to us and of great consequence in itself; but think
it the proper way for us, having laid matters as we
conceive them before your Grace and my Lords, to
submit the jurisdiction of your own court to your own
determination. "
It appears to your Committee, that the Lords, who
stood against submitting the course of their high
court to the inferior Judges, and that the Judges,
who, with a legal and constitutional discretion, declined giving any opinion in this matter, acted as
became them; and your Committee sees no reason
why the Peers at this day should be less attentive
to the rights of their court with regard to an exclusive judgment on their own proceedings or to the
rights of the Commons acting as accusers for the
whole commons of Great Britain in that court, or
why the Judges should be less reserved in deciding
upon any of these points of high Parliamentary privilege, than the Judges of that and the preceding periods. This present case is a proceeding in full Parliament, and not like the case under the commission in the time of James II. , and still more evidently out
of the province of Judges in the inferior courts.
All the precedents previous to the trial of Warren
Hastings, Esquire, seem to your Committee to be
uniform. The Judges had constantly refused to give
an opinion on any of the powers, privileges, or competencies of either House. But in the present instance your Committee has found, with great con
? ? ? ? 54 IMPEACHMENT OF WARREN HASTINGS.
cern, a further matter of innovation. Hitherto the
constant practice has been to put questions to the
Judges but in the three following ways: as, 1st, A
question of pure abstract law, without reference to
any case, or merely upon an A. B. case stated to
them; 2dly, To the legal construction of some act
of Parliament; 3dly, To. report the course of proceeding in the courts below upon an abstract case. Besides these three, your Committee knows not of
a single example of any sort, during the course of
any judicial proceeding at the bar of the House
of Lords, whether the prosecution has been by indictmentj by information from the Attorney-General, or by impeachment of the House of Commons.
In the present trial, the Judges appear to your
Committee not to have given their judgment on
points of law, stated as such, but to have in effect
tried the cause, in the whole course of it,- with one
instance to the contrary.
The Lords have stated no question of general law,
no question on the construction of an act of Parliament, no question concerning the practice of the courts below. They put the whole gross case and
matter in question, with all its circumstances, to the
Judges. They have, for the first time, demanded of
them what particular person, paper, or document
ought or ought not to be produced before them by
the Managers for the Commons of Great Britain: for
instance, whether, under such an article, the Bengal Consultations of such a day, the examination
of Rajah Nundcomar, and the like. The operation
of this method is in substance not only to make the
Judges masters of the whole process and conduct of
the trial, but through that medium to transfer to
? ? ? ? REPORT ON THE LORDS' JOURNALS. 55
them the ultimate judgment on the cause itself and
its merits.
The Judges attendant on the Court of Peers hitherto have not been supposed to know the particulars
and minute circumstances of the cause, and must
therefore be incompetent to determine upon those
circumstances. The evidence taken is not, of course,
that we can find, delivered to them; nor do we find
that in fact any order has been made for that purpose,
even supposing that the evidence could at all regularly be put before them. They are present in, court,
not to hear the trial, but solely to advise in matter
of law; they cannot take. upon themselves to say anything about the Bengal Consultations, or to know
anything of Rajah Nundcomar, of Kelleram, or of
Mr. Francis, or Sir John Clavering.
That the House may be the more fully enabled to
judge of the nature and tendency of thus putting
the question specifically, and'on the gross case, your
Committee thinks fit here to insert one of those questions, reserving a discussion of its particular merits
to another place. It was stated on the 22d of April,
1790, " On that day the Managers proposed to show
that Kelleram fell into great balances with the East
India Company, in consequence of his appointment. "
It is so stated in the printed Minutes (p. 1206). But
the real tendency and gist of the proposition is not
shown. However, the question was put, " Whether itbe 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, Esquire, let the lands mentioned in the
said sixth article of charge to Kelleram fell into arrear
and was deficient; and whether, if proof were offered
? ? ? ? 56 IMPEACHMENT OF WARREN HASTINGS.
that the rent fell into arrear immediately after theletting, the evidence in that case would be competent? "
The Judges answered, on the 27th of the'said month,
as follows: -- " It is not competent for the Managers for
the House of 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. "
The House will observe that on the question two
cases of competence were put: the first, on the coin
petence of Managers for the House of Commons to
give the evidence supposed to be offered by them, but
which we deny to have been offered in the manner
and for the purpose assumed in this question; the
second is in a shape apparently more abstracted, and
more nearly approaching to Parliamentary regularity,
-- on the competence of the evidence itself, in the
case of a supposed circumstance being superadded.
The Judges answered only the first, denying flatly the
competence of the Managers. As to the second, the
competence of the supposed evidence, they are profoundly silent. Having given this blow to our competence, about the other question, (which was more within their province,) namely, the competence of
evidence on a case hypothetically stated, they give
themselves no trouble. The Lords on that occasion
rejected the whole evidence. On the face of the
Judges' opinion it is a determination on a case, the
trial of which was not with them, but it contains no
rule or principle of law, to which alone it was their
duty to speak. *
* All the resolutions of the Judges, to the time of the reference to
the Committee, are in the Appendix, No. 2.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 57
These essential innovations tend, as your Committee conceives, to make an entire alteration in the constitution and in the purposes of the High Court
of Parliament, and even to reverse the ancient relations between the Lords and the Judges. They tend wholly to take away from the Commons the benefit
of making good their case before the proper judges,
and submit this high inquest to the inferior courts.
Your Committee sees no reason why, on the same
principles and precedents, the Lords may not terminate their proceedings in this, and in all future trials, by sending the whole body of evidence taken before
them, in the shape of a special verdict, to the Judges,
and may not demand of them, whether they ought,
on the whole matter, to acquit or condemn the prisoner; nor can we discover any cause that should hinder them [the Judges] from deciding on the accumulative body of the evidence as hitherto they have done in its parts, and from dictating the existence or
non-existence of a misdemeanor or other crime in the
prisoner as they think fit, without any more reference to principle or precedent of law than hitherto they have thought proper to apply in determining on the
several parcels of this cause.
YouP Committee apprehends that very serious inconveniencies and mischiefs may hereafter arise from a practice in the House of Lords of considering itself
as unable to act without the judges of the inferior
courts, of implicitly following their dictates, of adhering with a literal precision to the very words of
their responses, and putting them to decide on the
competence of the Managers for the Commons, the
competence of the evidence to be produced, who are
to be permitted to appear, what questions are to be
? ? ? ? 58 IMPEACHMENT OF WARREN HASTINGS.
asked of witnesses, and indeed, parcel by parcel,: on
the whole of the gross case before them, - as well as
to: determine upon the order, method, and process of
every part of their proceedings. The judges of the
inferior courts are by law rendered independent of
the Crown. But this, instead of a benefit to the subject, would be a grievance, if no way was left of producing a responsibility. If the Lords cannot or will
not act without the Judges, and if (which God forbid! )
the Commons should find it at any time hereafter
necessary to impeach them before the Lords, this
House would find the Lords disabled in their functions, fearful of giving any judgment on matter of
law or admitting any proof of fact without them [the
Judges]; and having once assumed the rule of proceeding and practice below as their rule, they must
at every instant resort, for their means of judging, to
the authority of those whom they are appointed to
judge.
Your Committee must always act with regard to
men as they are. There are no privileges or exemptions from the infirmities of our common nature.
We are sensible that all men, and without any evil
intentions, will naturally wish to extend their own jurisdiction, and to weaken all the power by which they
may be limited and controlled. It is the business of
the House of Commons to counteract this tendency.
This House had given to its Managers no power to
abandon its privileges and the rights of its constituents. ' They were themselves as little disposed as
authorized to make this surrender. They are members of this House, not only charged with the management'of this impeachment, but partaking of a general trust inseparable from the Colnmoils of Great Britain
? ? ? ? . REPORT ON THE LORDS' JOURNALS. . 59
in Parliament assembled, one of whose principal functions and duties it is to be observant of the courts of justice, and to take due: care that none of them, from
the lowest to the highest,. shall pursue new courses,
unknown to the laws and constitution of this kingdom,
or to equity, sound legal policy, or substantial justice.
Your Committee were not sent into Westminster
Hall for the purpose of contributing in their persons,
and under the authority of the House, to change the
course or law of Parliament, which had continued unquestioned for at least four hundred years. Neither was it any part of their mission to suffer precedents
to be established, with relation to the law and rule
of evidence, which tended in their opinion to shut up
forever all the avenues to justice. They were not to
consider a rule of evidence as a means of concealment.
They were not, without a struggle, to suffer any subtleties to prevail which would render a process in Parliament, not the terror, but the protection, of all
the fraud and violence arising from the abuse of British power in the East. Accordingly, your Managers contended with all their might, as their predecessors
in the same place had contended with more ability and
learning, but not with more zeal and more firmness,
against those dangerous innovations, as they were
successively introduced: they held themselves bound
constantly to protest, and in one or two instances
they did protest, in discourses of considerable length,
against those private, and, for what they could find,
unargued judicial opinions, which must, as they fear,
introduce by degrees the miserable servitude which
exists where the law is uncertain or unlknown.
? ? ? ? 60 IMPEACHMENT OF WARREN HASTINGS.
DEBATES ON EVIDENCE.
THE chief debates at the bar, and the decisions of
the Judges, (which we find in all cases implicitly
adopted, in all their extent and without qualification, by the Lords,) turned upon evidence. Your
Committee, before the trial began, were apprised, by
discourses which prudence did not permit them to
neglect, that endeavors would be used to embarrass
them in their proceedings by exceptions against evidence; that the judgments -and opinions of the courts
below would be'resorted to on this subject; that there
the rules of evidence were precise, rigorous, and inflexible; and that the counsel for the criminal would
endeavor to introduce the same rules, with the same
severity and exactness, into this trial. Your Committee were fully assured, and were resolved strenuously to contend, that no doctrine or rule of law, much less the practice of any court, ought to have
weight or authority in Parliament, further than as
such doctrine, rule, or practice is agreeable to the
proceedings in Parliament, or hath received the sanction of approved precedent there, or is founded on the
immutable principles of substantial justice, without
which, your Committee readily agrees, no practice in
any court, high or low, is proper or fit to be maintained.
In this preference of the rules observed in the
High Court of Parliament, preeminently superior to
all the rest, there is no claim made which the inferior
courts do not make, each with regard to itself. It is
well known that the rules of proceedings in these
courts vary, and some of them very essentially; yet
the usage of each court is the law of the court, and it'
? ? ? ? REPORT ON THE LORDS' JOURNALS. 61
would be vain to object to any rule in any court, that
it is not the rule of another court. For instance: as
a general rule, the Court of King's Bench, on trials
by jury, cannot receive depositions, but must judge
by testimony viva voce. The rule of the Court of
Chancery is not only not the same, but it is the reverse,
and Lord Hardwicke ruled accordingly. ' The constant and established proceedings of this Court," said
this great magistrate, " are on written evidence, like
the proceedings on the Civil and Canon Law. This
is the course of the Court, and the course of the
Court is the law of the Court. " *
Your Managers were convinced that one of the
principal reasons for which this cause was brought into Parliament was the danger that in inferior. courts
their rule would be formed naturally upon their ordinary experience, and the exigencies of the cases
which in ordinary course came before them. This
experience, and the exigencies of these cases, extend
little further than the concerns of a people comparatively in a narrow vicinage, a people of the same or
nearly the same language, religion, manners, laws,
and habits: with them an intercourse of every kind
was easy.
These rules of law in most cases, and the practice
of the courts in all, could not be easily applicable to
a people separated from Great Britain by a very great
part of the globe, - separated by manners, by principles of religion, and of inveterate habits as strong as
nature itself, still more than by the circumstance of
local distance. Such confined and inapplicable rules
would be convenient, indeed, to oppression, to extortion, bribery, and corruption, but ruinous to the peo* Atkyns, Vol.
