of
Parliament
bears in.
Edmund Burke
7
? ? ? ? 98 IMPEACHMENT OF WARREN HASTINGS.
not know a case in which proof might not be supplied. *
Your Committee has resorted to the trial of Donellan, and they have and do much rely:upon it, first,
on account of the known learning and ability of the
judge who tried the cause, and the particular attention
he has paid to the subject of evidence, which forms a
book in his treatise on Nisi Prius; -- next, because,
as the trial went wholly on circumstantial evidence,
the proceedings in it furnish some of the most complete and the fullest examples on that subject; --'thirdly, because the case is recent, and the law cannot be supposed to be materially altered since the time of
that event.
Comparing the proceedings on that trial, and the
doctrines from the bench, with the doctrines we have
heard from the woolsack, your Committee cannot
comprehend how they! can be reconciled. For the
Lords compelled the Managers to declare for what
purpose they produced each separate member of their
circumstantial evidence: a thing, as we conceive, not
usual, and particularly not observed in the trial of
Donellan. We have observed in that trial, and in
most others which we have had occasion to resort to,
that the prosecutor is suffered to proceed narratively
and historically,; without interruption. If, indeed, it
appears on the face of the narration that what is represented to have been said, written, or done did not
come to the knowledge of the prisoner, a question
sometimes, but rarely, has been asked, whether the
prisoner could be affected with the knowledge of it.
When a connection with the person of the prisoner
has been in any way shown, or even promised to be
* Vide supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 99
shown, the evidence is allowed to go on without further opposition. : The sending of a sealed letter, -. the receipt of a sealed letter, inferred from the delivery: to
the prisoner's servant, the bare possession of a paper written by any other person,. on the presumption that the contents of such letters or such paper were
known to the prisoner, and the being present when
anything was said or done, on the presumption of his
seeing or hearing what passed, have been respectively
ruled to be sufficient. If, on the other hand, no circumstance of connection has been proved, the judge, in summing up, has directed the jury to pay no regard
to a letter or conversation the proof of which has so
failed: a course much less liable to inconvenience,
where the same persons decide both the law and the
fact. *
To- illustrate the difficulties to which your Committee was subjected on this head, we think it sufficient to submit to the House (reserving a more full discussion of this important point to another occasion) the following short statement of an incident which occurred in this trial.
By an express order of the Court of Directors,
(to which, by the express words of the act of Parliament under which he held: his office, he was ordered to yield obedience. ,) Mr. Hastings and his colleagues
were directed to make an inquiry into all offences
of bribery and corruption in office. On the 11th of
March a charge in writing of bribery and corruption
* Girdwood's Case, Leach, p. 128. 'Gordon's Case, Ibid. p. 245.
Lord Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI.
p. 279. Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X.
p. 263, 270. Trial of the Duchess of Kingston, St. Tr. XI. p. 244.
Trial of Huggins, St. Tr. IX. p. 119, 120, 135.
? ? ? ? 100 IMIPEACHMENT OF WARREN HASTINGS.
in office was brought against himself. On the 13th
of the same month, the accuser, a man of high rank,
the Rajah Nundcomar, appears personally before the
Council to make good his charge against Mr. Hastings
before his own face. Mr. Hastings thereon fell into
a very intemperate heat, obstinately refused to be present at the examination, attempted to dissolve the Council, and contumaciously retired from it. Three of the other members, a majority of the Council, in execution
of their duty, and in obedience to the orders received
under the act of Parliament, proceeded to take the
evidence, which is very minute and particular, and
was entered in the records of the Council by the
regular official secretary. It was afterwards read in
Mr. Hastings's own presence, and by him transmitted,
under his own signature, to the Court of Directors.
A separate letter was also written by him, about the
same time, desiring, on his part, that, in any inquiry
into his conduct, "not a single word should escape
observation. " This proceeding in the Council your
Committee, in its natural order, and in a narrative
chain of circumstantial proof, offered in evidence. It
was not permitted to be read; and on the 20th and
21st of May, 1789, we were told from the woolsack,
" that, when a paper is not evidence by itself," (such
this part of the Consultation, it seems, was reputed,)
" a party who wishes to introduce a paper of that
kind is called upon not only to state, but to make out
on proof, the whole of the grounds upon which he proceeds to make that paper proper evidence; that the evidence that is produced must be the demeanor of the party respecting that paper; and it is the connection
between them, as material to the charge depending, that
will enable them to be produced. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 101
Your Committee observes, that this was not a paper
foreign to the prisoner, and sent to him as a letter,
the receipt of which, and his conduct thereon, were
to be brought home to him, to infer his guilt from his
demeanor. It was an office document of his own
department, concerning himself, and kept by officers
of his own, and by himself transmitted, as we have
said, to the Court of Directors. Its proof was in the
record. The charge made against him, and his demeanor on being acquainted with it, were not in
separate evidence. They all lay together, and composed a connected narrative of the business, authenticated by himself. In that case it seems to your Committee extremely
irregular and preposterous to demand previous and:
extraneous proofs of the demeanor of the party re-'
specting the paper, and the connection between them,
as material to the charge depending; for this would
be to try what the effect and operation of the evidence would be on the issue of the cause, before its'
production.
The doctrine so laid down demands that every several circumstance should in itself be conclusive, or at
least should afford a violent presumption: it must,
we were told, without question, be material to the::
charge depending. But, as we conceive, its materiality, more or less, is not in the first instance to be
established. To make it admissible, it is enough to
give proof, or to raise a legal inference, of its connection both with the charge depending and the person
of the party charged, where it does not appear on the
face of the evidence offered. Besides, by this new
doctrine, the materiality required to be shown must
be decided from a consideration, not of the whole
? ? ? ? 102 IMPEACHMENT OF: WARREN HASTINGS.
circumstance, but in truth of one half of. the circumstance,- of a demeanor unconnected with and unexplained by that on which it arose, though the: connection between the demeanor of the party and the paper is that which must be shown to be material.
Your Committee, after all they have heard, is yet to
learn how the full force and effect of any demeanor,
as evidence of guilt or innocence, can be known, unless it be also fully known to what that demeanor applied, - unless, when a person did or said anything,
it be known, not generally and abstractedly, that a
paper was read to him, but particularly and specifically what were the contents of that paper: whether
they were matters lightly or weightily alleged, - within the power of the party accused to have confuted
on the spot, if false, --or such as, though he might
have denied, he could not instantly have disproved. ,
The doctrine appeared and still appears to your Committee to be totally abhorrent from the genius of circumstantial evidence, and mischievously subversive
of its use. We did, however, offer that extraneous
proof which was demanded of us; but it was refused,
as well as the office. document.
Your Committee thought themselves the more
bound to. contend for every mode of evidence to the
intention, because in many of the cases the gross fact
was admitted, and the prisoner and his counsel set
up pretences of public necessity and public service for
his justification. No way lay open for rebutting this
justification, but by bringing out all the circumstances attendant on the transaction.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 103
ORDER AND TIME OF PRODUCING EVIDENCE.
YouR Committee found great impediment in the
production of evidence, not only on account of the
general doctrines supposed to exist concerning its
inadmissibility, drawn from its own alleged natural
incompetency, or from its inapplicability under the
pleading of the impeachment of this House, but also
from the mode of proceeding in bringing it forward.
Here evidence which we thought necessary to the
elucidation of the cause was not suffered, upon the
supposed rules of examination in chief and cross-examination, and on supposed rules forming a distinction between evidence originally produced on the charge
and evidence offered on tdie reply.
On all these your Committee observes in general,
that, if the rules which respect the substance of the
evidence are (as the great lawyers on whose authority we stand assert they are) no more than rules of convenience, much more are those subordinate rules
which regard the order, the manner, and the time
of the arrangement. These are purely arbitrary,
without the least. reference to any fixed principle in
the nature of things, or to any settled maxim of jurisprudence, and consequently are variable at every instant, as the conveniencies of the cause may require.
We admit, that, in the order of mere arrangement,
there is a difference between examination of witnesses
in chief and cross-examination, and that in general
these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be any precise rule to discriminate
the exact bounds between examination and cross-examination. . . So: as. to time there is necessarily some
? ? ? ? 104 IMPEACHMENT OF WARREN HASTINGS.
limit, but a limit hard to fix. The only one which
can be fixed with any tolerable degree of precision
is when the judge, after fully hearing all parties, is
to consider of his verdict or his sentence. Whilst the
cause continues under hearing in any shape, or in any
stage of the process, it is the duty of the judge to
receive every offer of evidence, apparently material,
suggested to him, though the parties themselves,
through negligence, ignorance, or corrupt collusion,
should not bring it forward. A judge is not placed
in that high situation merely as a passive instrument
of parties. He has a duty of his own, independent
of them, and that duty is to investigate the truth.
There may be no prosecutor. In our law a permanent prosecutor is not of necessity. The Crown prosecutor in criminal cases is a grand jury; and this is dissolved instantly on its findings and its presentments. But if no prosecutor appears, (and it has
happened more than once,) the court is obliged
through its officer, the clerk of the arraigns, to examine and cross-examine every witness who presents
himself; and the judge is to see it done effectually,
and to act his own part in it,-and this as long as
evidence shall be offered within the time which the
mode of trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses, or other kinds of evidence, have
not been frequently produced after the closing of the
prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature
of our common judicial proceedings, in which all the
matter of evidence must be presented whilst the bodily force and the memory or other mental faculties
of men can hold out. This does not exceed tho
? ? ? ? REPORT ON THE LORDS' JOURNALS. 105
compass of one natural day, or thereabouts: during
that short space of time new evidence very rarely occurs for production by any of the parties; because the
nature of men, joined to the nature of the tribunals,
and of the mode of trial at Common Law, (good and
useful on the whole,) prescribe limits which the mere
principles of justice would of themselves never fix.
But in other courts, such as the Court of Chancery,
the Courts of Admiralty Jurisdiction, (except in prize
causes under the act of Parliament,) and in the Ecclesiastical Courts, wherein the trial is not by an inclosed jury in those courts, such strait limits are not
of course necessary: the cause is continued by many
adjournments; as long as the trial lasts, new witnesses are examined (even after the regular stage) for
each party, on a special application under the circumstances to the sound discretion of the court, where
the evidence offered is newly come to the knowledge
or power of the party, and appears on the face of it
to be material in the cause. Even after hearing, new
witnesses have been examined, or former witnesses reexamined, not as the right of the parties, but ad informandam conscientiam judieis. * All these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster
Hall; who cannot be supposed ignorant of the practice of the Court of Chancery, and who sit to try appeals from the Admiralty and Ecclesiastical Courts as delegates.
But as criminal prosecutions according to the forms
of the Civil and Canon Law are neither many nor
* Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228.
I Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit.
Evidence (P. a. ).
? ? ? ? 106 IMPEACHMENT OF WARREN HASTINGS.
important in any court of this part of the kingdom,
your Committee thinks it right to state the undisputed. principle of the Imperial Law, from the great
writer on this subject before cited by us, -- from Carpzovius. . He says:,' that a doubt has arisen, wheth'er, evidence being once. given in a trial on a public prosecution, (in processu inquisitorio,) and the witnesses being examined, it may be allowed:to. form other and
new articles and to. produce new witnesses. " Your
Committee must here observe, that the pro:essus inquisitorius is that proceeding in which the prosecution is carried on:in the name of the judge acting ex officio,
from that duty of his office which is called the nobile
offcium judicis. For the judge under the Imperial
Law possesses both those powers, the inquisitorial
and the judicial, which in the High Court of Parlianient are more. . aptly divided and exercised by the different Houses; and in this kind of process the
House will see that Carpzovius couples the production
of new witnesses and the forming of new articles (the
undoubted privilege of the Commons) as intimately: and necessarily connected. He then proceeds to solve; the doubt. "Certainly," says he, "there are
authors who deny, that, after publication of the depositions, any new witnesses and proofs that can affect the- prisoner ought. to be received; which," says he,
"is true in a case where a private prosecutor has
intervened, who- produces the witnesses. But if the
judge proceeds by way of inquisition ex officio, then,
even after the completion of the examination of witnesses:against the. prisoner,'new witnesses may be re-' ceived and examined, and, on new grounds of suspicion arising, new articles. may be formed, according to, the common opinion of the doctors; and as. it is. the:
? ? ? ? . REPORT. ON. THE LORDS'. :JOURNALS. . -. 107
most generally received, so it is most agreeable to
reason. " And in another chapter, relative to the
ordinary criminal process by a private prosecutor, he
lays it down, on the authority of Angelus, Bartolus,
and others, that, after the right of the party prosecuting is expired, the judge, taking up the matter ex officio, may direct new witnesses and new proofs, even
after publication. j Other passages. from the same
writer and from others might be added; but your
Committee trusts that, what they have produced is
sufficient to show the general principles: of the Imperial Criminal Law.
The High Court.
of Parliament bears in. its modes
of proceeding a much greater resemblance to the
course of the Court of Chancery, the Admiralty, and
Ecclesiastical Courts, (which are the -King's courts
too, and their law the law of the land,) than to those
of the Common Law. The accusation is brought into Parliament, at'this very day, by exhibiting- articles; which your Committee is informed is the regular
mode of commencing a criminal prosecution, where
the. office of the judge is promoted, in the, Civil and
Canon Law courts of this country. : The answer,
again, is usually specific, both to the fact and the law
alleged in each particular article; which is agreeable to the proceeding of the. Civil Law and. not of
the Common Law.
Anciently the resemblance was much nearer and
stronger. Selden, who was himself a great ornament
of the Common Law, and who was personally engaged in most of the impeachments of his time, has written expressly on the judicature in Parliament.
* Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
t Ibid. Quest. CVI. No. 89.
? ? ? ? 108 IMPEACHMENT OF WARREN HASTINGS.
In his fourth chapter, intituled, Of Witnesses, he lays
down the practice of his time, as well as of ancient
times, with respect to the proof by exanlination; and
it is clearly a practice more similar to that of the
Civil than the Common Law. "The practice at this
day," says he, "is to swear the witnesses in open
House, and then to examine them there, or at a committee, either upon interrogatories agreed upon in the House, or such as the committee in their discretion
shall demand. Thus it was in ancient times, as shall
appear by the precedents, so many as they are, they
being very sparing to record those ceremonies, which
I shall briefly recite: I then add those of later
times. "
Accordingly, in times so late as those of the trial
of Lord Middlesex,* upon an impeachment of the
Commons, the whole course of the proceeding, especially in the mode of adducing the evidence, was
in a manner the same as in the Civil Law: depositions were taken, and publication regularly passed:
and on the trial of Lord Strafford, both modes pointed
out by Selden seem to have been indifferently used.
It follows, therefore, that this high court (bound
by none of their rules) has a liberty to adopt the
methods of any of the legal courts of the kingdom
at its discretion; and in sound discretion it ought
to adopt those which bear the nearest resemblance to
its own constitution, to its own procedure, and to
its exigencies in the promotion of justice. There
are conveniencies and inconveniencies both in the
shorter and the longer mode of trial. But to bring
the methods observed (if such are in fact observed)
in the former, only from necessity, into the latter,
* 22 Jac. I. 1624.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 109
by choice, is to load it with the inconveniency of
both, without the advantages of either. The chief
benefit of any process which admits of adjournments
is, that it may afford means of fuller information and
more mature deliberation. If neither of the parties
have a strict right to it, yet the court or the jury,
as the case may be, ought to demand it.
Your Committee is of opinion, that all rules relative to laches or neglects in a party to the suit, which
may cause nonsuit on the one hand or judgment by
default in the other, all things which cause the party
cadere in jure, ought not to be adhered to in the utmost rigor, even in civil cases; but still less ought
that spirit which takes advantage of lapses and failures on either part to be suffered to govern in causes criminal. '"Judges ought to lean against every
attempt to nonsuit a plaintiff on objections which
have no relation to the real merits. - It is unconscionable in a defendant to take advantage of the apices
Uitigandi: against such objections every possible presumption ought to be, made which ingenuity can suggest. How disgraceful would it be to the administration of justice to allow chicane to obstruct right! "* This observation of Lord Mansfield applies equally to every means by which, indirectly as
well as directly, the cause may fail upon any other
principles than those of its merits. He thinks that
all the resources of ingenuity ought to be employed
to baffle chicane, not to support it. The case in
which Lord Mansfield has delivered this sentiment
* Morris v. Pugh, Burrow, Vol. III. p. 1243. See also Vol. II.
Alder v. Chip; Vol. IV. Dickson v. Fisher; Grey v. Smythyes. -
N. B. All from the same judge, and proceeding on the same principles.
? ? ? ? 110 IMPEACHMENT OF WARREN HASTINGS.
is merely a civil one. In civil causes of meum et
tuum, it imports little to the commonwealth, whether
Titus or JMcevius profits of a legacy, or whether John
a' Nokes or John d Stiles is seized of the manor of
Dale. For which reason, in many cases, the private
interests of men are left by courts to suffer by their
own neglects and their own want of vigilance, as their
fortunes are permitted to suffer from the same causes
in all the concerns of common life. But in crimes,
where the prosecution is on the part of the public,
(as all criminal prosecutions are, except appeals,)
the public prosecutor ought not to be considered as
a plaintiff in a cause of meum et tuum; nor the prisoner, in such a cause, as a common defendant. In such a cause- the state itself is higllly concerned in
the event: on the other hand, the, prisoner may lose
life, which all:the wealth and power of all the states
in the world cannot restore to him. Undoubtedly
the state ought not to be weighed against justice;
but it would be: dreadful indeed, if causes of such
importance should be sacrificed to petty regulations,
of mere secondary convenience, not at all adapted
to such concerns, nor even made with a view to their
existence. Your Committee readily adopts the opinion of the learned Ryder, that it would be better,
if there were no such rules, than that there should
be no exceptions to them. Lord Hardwicke declared
very properly, in the case of the Earl of Chesterfield against Sir Abraham Janssen, "that political arguments, in the fullest sense of the word, as they
concerned the government of a nation, must be,
and always have been, of great weight in the consideration of this court. Though there be no dolus malus in contracts, with regard to other persons, yet,
? ? ? ? REPORT ON THE LORDS' JOURNALS. I11
if the rest of mankind are concerned as well as the
parties, it may be properly said, it regards the public utility. " * Lord Hardwicke laid this down in a
cause of meum et tuum, between party and party,
where the public was concerned only remotely and
in the example, - not, as in this prosecution, when
the political arguments are infinitely stronger, the
crime relating, and in the most eminent degree relating, to the public.
One case has happened since the time which is
limited by the order of the House for this Report:
it is so very important, that we think ourselves justified in submitting it to the House without delay.
Your Committee, on the supposed rules here alluded to, has been prevented (as of right) from examining a witness of importance in the case, and one on whose supposed knowledge of his most hidden
transactions the prisoner had himself, in all stages of
this business, as the House well knows, endeavored to
raise presumptions in favor of his cause. Indeed, it
was his principal, if not only justification, as to the intention, in many different acts of corruption charged
upon him. The witness to whom we allude is Mr.
Larkins. This witness came from India after your
Committee had closed the evidence of this House in
chief, and cotld not be produced before the time of
the reply. Your Committee was not suffered to examine him, - not, as they could find, on objections to
the particular question as improper, but upon some
or other of the general grounds (as they believe) on
which Mr. Hastings resisted any evidence from him.
The party, after having resisted his production, on
the next sitting day admitted him, and by consent he
* Chesterfield v. Janssen, Atkyns's Reports, Vol. II.
? ? ? ? 112 IMPEACHMENT OF WARREN HASTINGS.
was examined. Your Committee entered a protest
on the minutes in favor of their right. Your Committee contended, and do contend, that, by the Law
of Parliament, whilst the trial lasts, they have full
right to call new evidence, as the circumstances may
afford and the posture of the cause may demand it.
This right seems to have been asserted by the Managers for the Commons in the case of Lord Stafford, 32 Charles II. * The Managers in that case claimed
it as the right of the Commons to produce witnesses
for the purpose of fortifying their former evidence.
Their claim was admitted by the court. It is an
adjudged case in the Law of Parliament. Your Committee is well aware that the notorious perjury and infamy of the witnesses in the trial of Lord Stafford
has been used to throw a shade of doubt and suspicion on all that was transacted on that occasion. But there is no force in such an objection. Your
Committee has no concern in the defence of these
witnesses, nor of the Lords who found their verdict
on such testimony, nor of the morality of those who
produced it. Much may be said to palliate errors
on the part of the prosecutors and judges, from the
heat of the times, arising from the great interests
then agitated. But it is plain there may be perjury
in witnesses, or even conspiracy unjustly to prosecute,
without the least doubt of the legality and regularity
of the proceedings in any part. This is too obvious
and too common to need argument or illustration.
The proceeding in Lord Stafford's case never has, now
for an hundred and fourteen years, either in the warm
controversies of parties, or in the cool disquisitions
of lawyers or historians, been questioned. The per* State Trials, Vol. III. p. 170.
? ? ? ? . REPORT ON THE LORDS' JOURNALS. 113
jury of the witnesses has been more doubted at some
periods than the regularity of the process has been
at any period. The learned lawyer who led for the
Commons in that impeachment (Serjeant Maynard)
had, near forty years before, taken a forward part in
the great cause of the impeachment of Lord Strafford,
and was, perhaps, of all men then in England, the
most conversant ill the law and usage of Parliament.
Jones was one of the ablest lawyers of his age. His
colleagues were eminent men.
In the trial of Lord Strafford, (which has attracted the attention of history more than any other, on
account of the importance of the cause itself, the
skill and learning of the prosecutors, and the eminent
abilities of the prisoner,) after the prosecutors for the
Commons had gone through their evidence on the
articles, after the prisoner had also made his defence,
either upon each severally, or upon each body of articles as they had been collected into one, and the Managers had in the same manner replied, when, previous to the general concluding reply of the prosecutors,
the time of the general summing up (or recollection,
as it was called) of the whole evidence on the part of
Lord Strafford arrived, the Managers produced new
evidence. Your Committee wishes to call the particular attention of the House to this case, as the contest between the parties did very nearly resemble the present, but principally because the sense of the Lords
on the Law of Parliament, in its proceedings with regard to the reception of evidence, is there distinctly
laid down: so is the report of the Judges, relative to
the usage of the courts below, full of equity and
reason, and in perfect conformity with the right for
which we contended in favor of the public, and in
VOL. XI. 8
? ? ? ? 114 IMPEACHMENT OF WARREN HASTINGS.
favor of the Court of Peers itself. The matter is as
follows. Your Committee gives it at large.
"After this, the Lord Steward adjourned this
House to Westminster Hall; and the Peers being
all set there in their places, the Lord Steward commanded the Lieutenant of the Tower to bring forth
the Earl of Strafford to the bar; which being done,
the Lord Steward signified that both sides might
make a recollection of their evidence, and the Earl
of Strafford to begin first.
"Hereupon Mr. Glynn desired that before the Earl
of Strafford began, that the Commons might produce
two witnesses to the fifteenth and twenty-third articles, to prove that there be two men whose names are Berne; and so a mistake will be made clear. The
Earl of Strafford desired that no new witnesses may
be admitted against him, unless lhe might be permitted
to produce witnesses on his part likewise; which the
Commons consented to, so the Earl of Strafford would
confine himself to those articles upon which he made
reservations: but he not agreeing to that, and the
Commons insisting upon it, the House was adjourned
to the usual place above to consider of it; and after
some debate, their Lordships thought it fit that the
members of the Commons go on in producing new
witnesses, as they shall think fit, to the fifteenth and
twenty-third articles, and that the Earl of Strafford
may presently produce such witnesses as are present,
and such as are not, to name them presently, and to
proceed on Monday next; and also, if the Commons
and Earl of Strafford will proceed upon any other
articles, upon new matter, they are to name the witnesses and articles on both sides presently, and to proceed on Monday next; but both sides may waive
? ? ? ? REPORT ON THE LORDS' JOURNALS. 115
it, if they will. The Lord Steward adjourned this
House to Westminster Hall, and, being returned
thither, signified what the Lords had thought fit for
the better proceeding in the business. The Earl of
Strafford, upon this, desiring not to be limited to any
reservation, but to be at liberty for what articles are
convenient for him to fortify with new witnesses,* to
which the Commons not assenting, and for other
scruples which did arise in the case, one of the Peers
did desire that the House might be adjourned, to
consider further of the particulars. Hereupon the
Lord;Steward adjourned the House to the usual
place above.
"The Lords, being come up int the- House, fell into debate of the business, and, for the better informing of their judgments what was the course and common justice of the kingdom, propounded this question to the Judges:' Whether it be according to the course
of practice and common justice, before the Judges in
their several courts, for the prosecutors inibehalf of
the King, during the time of trial, to produce witnesses to: discover the truth, and whether the prisoner
may: not do the like? ' The Lord Chief-Justice delivered this as -the unanimous opinions of himself and
all the rest of the Judges:'That, according to the
course of practice and common justice, before them
in their several courts, upon trial by jury, as long as
the prisoner is at the bar, and the jury not sent away,
either side may give their evidence and examine witnesses to discover truth; and this is all the opinion
as we can give concerning the proceedings before us. '
Upon some consideration after this, the House appointed the Earl of Bath, Earl of South'ton, Earl of
*Bis in originali.
? ? ? ? 116 IMPEACHMENT OF WARREN HASTINGS.
Hartford, Earl of Essex, Earl of Bristol, and *the
Lord Viscount Say et Seale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order
of the House:' The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they,
being prosecutors for the King, may bring any new
proofs by witnesses during the time of the evidence
being not fully concluded. The Lords, being judges,
and so equal to them and the prisoner, conceived this
their desire to be just and reasonable; and also that,
by the same common justice, the prisoner may use
the same liberty; and that, to avoid any occasions
of delay, the Lords thought fit that the articles and
witnesses be presently named, and such as may be
presently produced to be used presently, [andt such
as cannot to be used on Monday,] and no further
time to be given. ' The Lord Steward was to let
them know, that, if they will on both sides waive
the use of new witnesses, they may proceed to the
recollection of their evidence on both sides; if both
sides will not waive it, then the Lord Steward is to
read the precedent order; and if they will not proceed then, this House is to adjourn and rise. " *
By this it will appear to the House how much this
exclusion of evidence, brought for the discovery of truth,
is unsupported either by Parliamentary precedent or
by the rule as understood in the Common Law courts
below; and your Committee (protesting, however,
against being bound by any of the technical rules of
inferior courts) thought, and think, they had a right
to see such a body of precedents and arguments for
* Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10~ die Aprilis.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 117
the rejection of evidence during trial, in some court
or other, before they were in this matter stopped and
concluded.
Your Committee has not been able to examine every criminal trial in the voluminous collection of the
State Trials, or elsewhere; but having referred to the
most laborious compiler of law and equity, Mr. Viner,
who has allotted a whole volume to the title of Evidence, we find but one- ruled case in a trial at Common Law, before or since, where new evidence for the discovery of truth: has been rejected, as not being
in due time. "A privy verdict had been given in B.
R. 14 Eliz. for the defendant; but afterwards, before
the inquest gave their verdict openly, the plaintiff
prayed that he might give more evidence to the jury,
he having (as it seemed) discovered that the ju'y had
found against him: but the Justices would not admit
him to do so; but after that Southcote J. had been
in C. B. to ask the opinion of the Justices there, they
took the verdict. " * In this case the offer of new evidence was not during the trial. The trial was over;
the verdict was actually delivered to the Judge; there
was also an appearance that the discovery of the
actual finding had suggested to the plaintiff the production of new evidence. Yet it appeared to the
Judges so strong a measure to refuse evidence, whilst
any, even formal, appearance remained that the trial
was not closed, that they sent a Judge from the bench
into the Common Pleas to obtain the opinion of their
brethren there, before they could venture to take upon'themn to consider the time for production of evidence as elapsed. The case of refusal, taken with its circumstances, is full as strong an example in
* )al. 80. PI. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.
? ? ? ? 118 IMPEACHMENT OF WARREN HASTINGS.
favor of the report of the Judges in Lord Strafford's
case as any precedent of admittance can be.
The researches of your Committee not having furnished them with any cases in which evidence has been rejected during the trial, as being out of time,
we have found some instances in which it has been
actually received, -- and received not to repel any
new matter in the prisoner's defence, but when the
prisoner had called all his witnesses, and thereby
closed his defence.
? ? ? ? 98 IMPEACHMENT OF WARREN HASTINGS.
not know a case in which proof might not be supplied. *
Your Committee has resorted to the trial of Donellan, and they have and do much rely:upon it, first,
on account of the known learning and ability of the
judge who tried the cause, and the particular attention
he has paid to the subject of evidence, which forms a
book in his treatise on Nisi Prius; -- next, because,
as the trial went wholly on circumstantial evidence,
the proceedings in it furnish some of the most complete and the fullest examples on that subject; --'thirdly, because the case is recent, and the law cannot be supposed to be materially altered since the time of
that event.
Comparing the proceedings on that trial, and the
doctrines from the bench, with the doctrines we have
heard from the woolsack, your Committee cannot
comprehend how they! can be reconciled. For the
Lords compelled the Managers to declare for what
purpose they produced each separate member of their
circumstantial evidence: a thing, as we conceive, not
usual, and particularly not observed in the trial of
Donellan. We have observed in that trial, and in
most others which we have had occasion to resort to,
that the prosecutor is suffered to proceed narratively
and historically,; without interruption. If, indeed, it
appears on the face of the narration that what is represented to have been said, written, or done did not
come to the knowledge of the prisoner, a question
sometimes, but rarely, has been asked, whether the
prisoner could be affected with the knowledge of it.
When a connection with the person of the prisoner
has been in any way shown, or even promised to be
* Vide supra.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 99
shown, the evidence is allowed to go on without further opposition. : The sending of a sealed letter, -. the receipt of a sealed letter, inferred from the delivery: to
the prisoner's servant, the bare possession of a paper written by any other person,. on the presumption that the contents of such letters or such paper were
known to the prisoner, and the being present when
anything was said or done, on the presumption of his
seeing or hearing what passed, have been respectively
ruled to be sufficient. If, on the other hand, no circumstance of connection has been proved, the judge, in summing up, has directed the jury to pay no regard
to a letter or conversation the proof of which has so
failed: a course much less liable to inconvenience,
where the same persons decide both the law and the
fact. *
To- illustrate the difficulties to which your Committee was subjected on this head, we think it sufficient to submit to the House (reserving a more full discussion of this important point to another occasion) the following short statement of an incident which occurred in this trial.
By an express order of the Court of Directors,
(to which, by the express words of the act of Parliament under which he held: his office, he was ordered to yield obedience. ,) Mr. Hastings and his colleagues
were directed to make an inquiry into all offences
of bribery and corruption in office. On the 11th of
March a charge in writing of bribery and corruption
* Girdwood's Case, Leach, p. 128. 'Gordon's Case, Ibid. p. 245.
Lord Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI.
p. 279. Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X.
p. 263, 270. Trial of the Duchess of Kingston, St. Tr. XI. p. 244.
Trial of Huggins, St. Tr. IX. p. 119, 120, 135.
? ? ? ? 100 IMIPEACHMENT OF WARREN HASTINGS.
in office was brought against himself. On the 13th
of the same month, the accuser, a man of high rank,
the Rajah Nundcomar, appears personally before the
Council to make good his charge against Mr. Hastings
before his own face. Mr. Hastings thereon fell into
a very intemperate heat, obstinately refused to be present at the examination, attempted to dissolve the Council, and contumaciously retired from it. Three of the other members, a majority of the Council, in execution
of their duty, and in obedience to the orders received
under the act of Parliament, proceeded to take the
evidence, which is very minute and particular, and
was entered in the records of the Council by the
regular official secretary. It was afterwards read in
Mr. Hastings's own presence, and by him transmitted,
under his own signature, to the Court of Directors.
A separate letter was also written by him, about the
same time, desiring, on his part, that, in any inquiry
into his conduct, "not a single word should escape
observation. " This proceeding in the Council your
Committee, in its natural order, and in a narrative
chain of circumstantial proof, offered in evidence. It
was not permitted to be read; and on the 20th and
21st of May, 1789, we were told from the woolsack,
" that, when a paper is not evidence by itself," (such
this part of the Consultation, it seems, was reputed,)
" a party who wishes to introduce a paper of that
kind is called upon not only to state, but to make out
on proof, the whole of the grounds upon which he proceeds to make that paper proper evidence; that the evidence that is produced must be the demeanor of the party respecting that paper; and it is the connection
between them, as material to the charge depending, that
will enable them to be produced. "
? ? ? ? REPORT ON THE LORDS' JOURNALS. 101
Your Committee observes, that this was not a paper
foreign to the prisoner, and sent to him as a letter,
the receipt of which, and his conduct thereon, were
to be brought home to him, to infer his guilt from his
demeanor. It was an office document of his own
department, concerning himself, and kept by officers
of his own, and by himself transmitted, as we have
said, to the Court of Directors. Its proof was in the
record. The charge made against him, and his demeanor on being acquainted with it, were not in
separate evidence. They all lay together, and composed a connected narrative of the business, authenticated by himself. In that case it seems to your Committee extremely
irregular and preposterous to demand previous and:
extraneous proofs of the demeanor of the party re-'
specting the paper, and the connection between them,
as material to the charge depending; for this would
be to try what the effect and operation of the evidence would be on the issue of the cause, before its'
production.
The doctrine so laid down demands that every several circumstance should in itself be conclusive, or at
least should afford a violent presumption: it must,
we were told, without question, be material to the::
charge depending. But, as we conceive, its materiality, more or less, is not in the first instance to be
established. To make it admissible, it is enough to
give proof, or to raise a legal inference, of its connection both with the charge depending and the person
of the party charged, where it does not appear on the
face of the evidence offered. Besides, by this new
doctrine, the materiality required to be shown must
be decided from a consideration, not of the whole
? ? ? ? 102 IMPEACHMENT OF: WARREN HASTINGS.
circumstance, but in truth of one half of. the circumstance,- of a demeanor unconnected with and unexplained by that on which it arose, though the: connection between the demeanor of the party and the paper is that which must be shown to be material.
Your Committee, after all they have heard, is yet to
learn how the full force and effect of any demeanor,
as evidence of guilt or innocence, can be known, unless it be also fully known to what that demeanor applied, - unless, when a person did or said anything,
it be known, not generally and abstractedly, that a
paper was read to him, but particularly and specifically what were the contents of that paper: whether
they were matters lightly or weightily alleged, - within the power of the party accused to have confuted
on the spot, if false, --or such as, though he might
have denied, he could not instantly have disproved. ,
The doctrine appeared and still appears to your Committee to be totally abhorrent from the genius of circumstantial evidence, and mischievously subversive
of its use. We did, however, offer that extraneous
proof which was demanded of us; but it was refused,
as well as the office. document.
Your Committee thought themselves the more
bound to. contend for every mode of evidence to the
intention, because in many of the cases the gross fact
was admitted, and the prisoner and his counsel set
up pretences of public necessity and public service for
his justification. No way lay open for rebutting this
justification, but by bringing out all the circumstances attendant on the transaction.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 103
ORDER AND TIME OF PRODUCING EVIDENCE.
YouR Committee found great impediment in the
production of evidence, not only on account of the
general doctrines supposed to exist concerning its
inadmissibility, drawn from its own alleged natural
incompetency, or from its inapplicability under the
pleading of the impeachment of this House, but also
from the mode of proceeding in bringing it forward.
Here evidence which we thought necessary to the
elucidation of the cause was not suffered, upon the
supposed rules of examination in chief and cross-examination, and on supposed rules forming a distinction between evidence originally produced on the charge
and evidence offered on tdie reply.
On all these your Committee observes in general,
that, if the rules which respect the substance of the
evidence are (as the great lawyers on whose authority we stand assert they are) no more than rules of convenience, much more are those subordinate rules
which regard the order, the manner, and the time
of the arrangement. These are purely arbitrary,
without the least. reference to any fixed principle in
the nature of things, or to any settled maxim of jurisprudence, and consequently are variable at every instant, as the conveniencies of the cause may require.
We admit, that, in the order of mere arrangement,
there is a difference between examination of witnesses
in chief and cross-examination, and that in general
these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be any precise rule to discriminate
the exact bounds between examination and cross-examination. . . So: as. to time there is necessarily some
? ? ? ? 104 IMPEACHMENT OF WARREN HASTINGS.
limit, but a limit hard to fix. The only one which
can be fixed with any tolerable degree of precision
is when the judge, after fully hearing all parties, is
to consider of his verdict or his sentence. Whilst the
cause continues under hearing in any shape, or in any
stage of the process, it is the duty of the judge to
receive every offer of evidence, apparently material,
suggested to him, though the parties themselves,
through negligence, ignorance, or corrupt collusion,
should not bring it forward. A judge is not placed
in that high situation merely as a passive instrument
of parties. He has a duty of his own, independent
of them, and that duty is to investigate the truth.
There may be no prosecutor. In our law a permanent prosecutor is not of necessity. The Crown prosecutor in criminal cases is a grand jury; and this is dissolved instantly on its findings and its presentments. But if no prosecutor appears, (and it has
happened more than once,) the court is obliged
through its officer, the clerk of the arraigns, to examine and cross-examine every witness who presents
himself; and the judge is to see it done effectually,
and to act his own part in it,-and this as long as
evidence shall be offered within the time which the
mode of trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses, or other kinds of evidence, have
not been frequently produced after the closing of the
prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature
of our common judicial proceedings, in which all the
matter of evidence must be presented whilst the bodily force and the memory or other mental faculties
of men can hold out. This does not exceed tho
? ? ? ? REPORT ON THE LORDS' JOURNALS. 105
compass of one natural day, or thereabouts: during
that short space of time new evidence very rarely occurs for production by any of the parties; because the
nature of men, joined to the nature of the tribunals,
and of the mode of trial at Common Law, (good and
useful on the whole,) prescribe limits which the mere
principles of justice would of themselves never fix.
But in other courts, such as the Court of Chancery,
the Courts of Admiralty Jurisdiction, (except in prize
causes under the act of Parliament,) and in the Ecclesiastical Courts, wherein the trial is not by an inclosed jury in those courts, such strait limits are not
of course necessary: the cause is continued by many
adjournments; as long as the trial lasts, new witnesses are examined (even after the regular stage) for
each party, on a special application under the circumstances to the sound discretion of the court, where
the evidence offered is newly come to the knowledge
or power of the party, and appears on the face of it
to be material in the cause. Even after hearing, new
witnesses have been examined, or former witnesses reexamined, not as the right of the parties, but ad informandam conscientiam judieis. * All these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster
Hall; who cannot be supposed ignorant of the practice of the Court of Chancery, and who sit to try appeals from the Admiralty and Ecclesiastical Courts as delegates.
But as criminal prosecutions according to the forms
of the Civil and Canon Law are neither many nor
* Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228.
I Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit.
Evidence (P. a. ).
? ? ? ? 106 IMPEACHMENT OF WARREN HASTINGS.
important in any court of this part of the kingdom,
your Committee thinks it right to state the undisputed. principle of the Imperial Law, from the great
writer on this subject before cited by us, -- from Carpzovius. . He says:,' that a doubt has arisen, wheth'er, evidence being once. given in a trial on a public prosecution, (in processu inquisitorio,) and the witnesses being examined, it may be allowed:to. form other and
new articles and to. produce new witnesses. " Your
Committee must here observe, that the pro:essus inquisitorius is that proceeding in which the prosecution is carried on:in the name of the judge acting ex officio,
from that duty of his office which is called the nobile
offcium judicis. For the judge under the Imperial
Law possesses both those powers, the inquisitorial
and the judicial, which in the High Court of Parlianient are more. . aptly divided and exercised by the different Houses; and in this kind of process the
House will see that Carpzovius couples the production
of new witnesses and the forming of new articles (the
undoubted privilege of the Commons) as intimately: and necessarily connected. He then proceeds to solve; the doubt. "Certainly," says he, "there are
authors who deny, that, after publication of the depositions, any new witnesses and proofs that can affect the- prisoner ought. to be received; which," says he,
"is true in a case where a private prosecutor has
intervened, who- produces the witnesses. But if the
judge proceeds by way of inquisition ex officio, then,
even after the completion of the examination of witnesses:against the. prisoner,'new witnesses may be re-' ceived and examined, and, on new grounds of suspicion arising, new articles. may be formed, according to, the common opinion of the doctors; and as. it is. the:
? ? ? ? . REPORT. ON. THE LORDS'. :JOURNALS. . -. 107
most generally received, so it is most agreeable to
reason. " And in another chapter, relative to the
ordinary criminal process by a private prosecutor, he
lays it down, on the authority of Angelus, Bartolus,
and others, that, after the right of the party prosecuting is expired, the judge, taking up the matter ex officio, may direct new witnesses and new proofs, even
after publication. j Other passages. from the same
writer and from others might be added; but your
Committee trusts that, what they have produced is
sufficient to show the general principles: of the Imperial Criminal Law.
The High Court.
of Parliament bears in. its modes
of proceeding a much greater resemblance to the
course of the Court of Chancery, the Admiralty, and
Ecclesiastical Courts, (which are the -King's courts
too, and their law the law of the land,) than to those
of the Common Law. The accusation is brought into Parliament, at'this very day, by exhibiting- articles; which your Committee is informed is the regular
mode of commencing a criminal prosecution, where
the. office of the judge is promoted, in the, Civil and
Canon Law courts of this country. : The answer,
again, is usually specific, both to the fact and the law
alleged in each particular article; which is agreeable to the proceeding of the. Civil Law and. not of
the Common Law.
Anciently the resemblance was much nearer and
stronger. Selden, who was himself a great ornament
of the Common Law, and who was personally engaged in most of the impeachments of his time, has written expressly on the judicature in Parliament.
* Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
t Ibid. Quest. CVI. No. 89.
? ? ? ? 108 IMPEACHMENT OF WARREN HASTINGS.
In his fourth chapter, intituled, Of Witnesses, he lays
down the practice of his time, as well as of ancient
times, with respect to the proof by exanlination; and
it is clearly a practice more similar to that of the
Civil than the Common Law. "The practice at this
day," says he, "is to swear the witnesses in open
House, and then to examine them there, or at a committee, either upon interrogatories agreed upon in the House, or such as the committee in their discretion
shall demand. Thus it was in ancient times, as shall
appear by the precedents, so many as they are, they
being very sparing to record those ceremonies, which
I shall briefly recite: I then add those of later
times. "
Accordingly, in times so late as those of the trial
of Lord Middlesex,* upon an impeachment of the
Commons, the whole course of the proceeding, especially in the mode of adducing the evidence, was
in a manner the same as in the Civil Law: depositions were taken, and publication regularly passed:
and on the trial of Lord Strafford, both modes pointed
out by Selden seem to have been indifferently used.
It follows, therefore, that this high court (bound
by none of their rules) has a liberty to adopt the
methods of any of the legal courts of the kingdom
at its discretion; and in sound discretion it ought
to adopt those which bear the nearest resemblance to
its own constitution, to its own procedure, and to
its exigencies in the promotion of justice. There
are conveniencies and inconveniencies both in the
shorter and the longer mode of trial. But to bring
the methods observed (if such are in fact observed)
in the former, only from necessity, into the latter,
* 22 Jac. I. 1624.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 109
by choice, is to load it with the inconveniency of
both, without the advantages of either. The chief
benefit of any process which admits of adjournments
is, that it may afford means of fuller information and
more mature deliberation. If neither of the parties
have a strict right to it, yet the court or the jury,
as the case may be, ought to demand it.
Your Committee is of opinion, that all rules relative to laches or neglects in a party to the suit, which
may cause nonsuit on the one hand or judgment by
default in the other, all things which cause the party
cadere in jure, ought not to be adhered to in the utmost rigor, even in civil cases; but still less ought
that spirit which takes advantage of lapses and failures on either part to be suffered to govern in causes criminal. '"Judges ought to lean against every
attempt to nonsuit a plaintiff on objections which
have no relation to the real merits. - It is unconscionable in a defendant to take advantage of the apices
Uitigandi: against such objections every possible presumption ought to be, made which ingenuity can suggest. How disgraceful would it be to the administration of justice to allow chicane to obstruct right! "* This observation of Lord Mansfield applies equally to every means by which, indirectly as
well as directly, the cause may fail upon any other
principles than those of its merits. He thinks that
all the resources of ingenuity ought to be employed
to baffle chicane, not to support it. The case in
which Lord Mansfield has delivered this sentiment
* Morris v. Pugh, Burrow, Vol. III. p. 1243. See also Vol. II.
Alder v. Chip; Vol. IV. Dickson v. Fisher; Grey v. Smythyes. -
N. B. All from the same judge, and proceeding on the same principles.
? ? ? ? 110 IMPEACHMENT OF WARREN HASTINGS.
is merely a civil one. In civil causes of meum et
tuum, it imports little to the commonwealth, whether
Titus or JMcevius profits of a legacy, or whether John
a' Nokes or John d Stiles is seized of the manor of
Dale. For which reason, in many cases, the private
interests of men are left by courts to suffer by their
own neglects and their own want of vigilance, as their
fortunes are permitted to suffer from the same causes
in all the concerns of common life. But in crimes,
where the prosecution is on the part of the public,
(as all criminal prosecutions are, except appeals,)
the public prosecutor ought not to be considered as
a plaintiff in a cause of meum et tuum; nor the prisoner, in such a cause, as a common defendant. In such a cause- the state itself is higllly concerned in
the event: on the other hand, the, prisoner may lose
life, which all:the wealth and power of all the states
in the world cannot restore to him. Undoubtedly
the state ought not to be weighed against justice;
but it would be: dreadful indeed, if causes of such
importance should be sacrificed to petty regulations,
of mere secondary convenience, not at all adapted
to such concerns, nor even made with a view to their
existence. Your Committee readily adopts the opinion of the learned Ryder, that it would be better,
if there were no such rules, than that there should
be no exceptions to them. Lord Hardwicke declared
very properly, in the case of the Earl of Chesterfield against Sir Abraham Janssen, "that political arguments, in the fullest sense of the word, as they
concerned the government of a nation, must be,
and always have been, of great weight in the consideration of this court. Though there be no dolus malus in contracts, with regard to other persons, yet,
? ? ? ? REPORT ON THE LORDS' JOURNALS. I11
if the rest of mankind are concerned as well as the
parties, it may be properly said, it regards the public utility. " * Lord Hardwicke laid this down in a
cause of meum et tuum, between party and party,
where the public was concerned only remotely and
in the example, - not, as in this prosecution, when
the political arguments are infinitely stronger, the
crime relating, and in the most eminent degree relating, to the public.
One case has happened since the time which is
limited by the order of the House for this Report:
it is so very important, that we think ourselves justified in submitting it to the House without delay.
Your Committee, on the supposed rules here alluded to, has been prevented (as of right) from examining a witness of importance in the case, and one on whose supposed knowledge of his most hidden
transactions the prisoner had himself, in all stages of
this business, as the House well knows, endeavored to
raise presumptions in favor of his cause. Indeed, it
was his principal, if not only justification, as to the intention, in many different acts of corruption charged
upon him. The witness to whom we allude is Mr.
Larkins. This witness came from India after your
Committee had closed the evidence of this House in
chief, and cotld not be produced before the time of
the reply. Your Committee was not suffered to examine him, - not, as they could find, on objections to
the particular question as improper, but upon some
or other of the general grounds (as they believe) on
which Mr. Hastings resisted any evidence from him.
The party, after having resisted his production, on
the next sitting day admitted him, and by consent he
* Chesterfield v. Janssen, Atkyns's Reports, Vol. II.
? ? ? ? 112 IMPEACHMENT OF WARREN HASTINGS.
was examined. Your Committee entered a protest
on the minutes in favor of their right. Your Committee contended, and do contend, that, by the Law
of Parliament, whilst the trial lasts, they have full
right to call new evidence, as the circumstances may
afford and the posture of the cause may demand it.
This right seems to have been asserted by the Managers for the Commons in the case of Lord Stafford, 32 Charles II. * The Managers in that case claimed
it as the right of the Commons to produce witnesses
for the purpose of fortifying their former evidence.
Their claim was admitted by the court. It is an
adjudged case in the Law of Parliament. Your Committee is well aware that the notorious perjury and infamy of the witnesses in the trial of Lord Stafford
has been used to throw a shade of doubt and suspicion on all that was transacted on that occasion. But there is no force in such an objection. Your
Committee has no concern in the defence of these
witnesses, nor of the Lords who found their verdict
on such testimony, nor of the morality of those who
produced it. Much may be said to palliate errors
on the part of the prosecutors and judges, from the
heat of the times, arising from the great interests
then agitated. But it is plain there may be perjury
in witnesses, or even conspiracy unjustly to prosecute,
without the least doubt of the legality and regularity
of the proceedings in any part. This is too obvious
and too common to need argument or illustration.
The proceeding in Lord Stafford's case never has, now
for an hundred and fourteen years, either in the warm
controversies of parties, or in the cool disquisitions
of lawyers or historians, been questioned. The per* State Trials, Vol. III. p. 170.
? ? ? ? . REPORT ON THE LORDS' JOURNALS. 113
jury of the witnesses has been more doubted at some
periods than the regularity of the process has been
at any period. The learned lawyer who led for the
Commons in that impeachment (Serjeant Maynard)
had, near forty years before, taken a forward part in
the great cause of the impeachment of Lord Strafford,
and was, perhaps, of all men then in England, the
most conversant ill the law and usage of Parliament.
Jones was one of the ablest lawyers of his age. His
colleagues were eminent men.
In the trial of Lord Strafford, (which has attracted the attention of history more than any other, on
account of the importance of the cause itself, the
skill and learning of the prosecutors, and the eminent
abilities of the prisoner,) after the prosecutors for the
Commons had gone through their evidence on the
articles, after the prisoner had also made his defence,
either upon each severally, or upon each body of articles as they had been collected into one, and the Managers had in the same manner replied, when, previous to the general concluding reply of the prosecutors,
the time of the general summing up (or recollection,
as it was called) of the whole evidence on the part of
Lord Strafford arrived, the Managers produced new
evidence. Your Committee wishes to call the particular attention of the House to this case, as the contest between the parties did very nearly resemble the present, but principally because the sense of the Lords
on the Law of Parliament, in its proceedings with regard to the reception of evidence, is there distinctly
laid down: so is the report of the Judges, relative to
the usage of the courts below, full of equity and
reason, and in perfect conformity with the right for
which we contended in favor of the public, and in
VOL. XI. 8
? ? ? ? 114 IMPEACHMENT OF WARREN HASTINGS.
favor of the Court of Peers itself. The matter is as
follows. Your Committee gives it at large.
"After this, the Lord Steward adjourned this
House to Westminster Hall; and the Peers being
all set there in their places, the Lord Steward commanded the Lieutenant of the Tower to bring forth
the Earl of Strafford to the bar; which being done,
the Lord Steward signified that both sides might
make a recollection of their evidence, and the Earl
of Strafford to begin first.
"Hereupon Mr. Glynn desired that before the Earl
of Strafford began, that the Commons might produce
two witnesses to the fifteenth and twenty-third articles, to prove that there be two men whose names are Berne; and so a mistake will be made clear. The
Earl of Strafford desired that no new witnesses may
be admitted against him, unless lhe might be permitted
to produce witnesses on his part likewise; which the
Commons consented to, so the Earl of Strafford would
confine himself to those articles upon which he made
reservations: but he not agreeing to that, and the
Commons insisting upon it, the House was adjourned
to the usual place above to consider of it; and after
some debate, their Lordships thought it fit that the
members of the Commons go on in producing new
witnesses, as they shall think fit, to the fifteenth and
twenty-third articles, and that the Earl of Strafford
may presently produce such witnesses as are present,
and such as are not, to name them presently, and to
proceed on Monday next; and also, if the Commons
and Earl of Strafford will proceed upon any other
articles, upon new matter, they are to name the witnesses and articles on both sides presently, and to proceed on Monday next; but both sides may waive
? ? ? ? REPORT ON THE LORDS' JOURNALS. 115
it, if they will. The Lord Steward adjourned this
House to Westminster Hall, and, being returned
thither, signified what the Lords had thought fit for
the better proceeding in the business. The Earl of
Strafford, upon this, desiring not to be limited to any
reservation, but to be at liberty for what articles are
convenient for him to fortify with new witnesses,* to
which the Commons not assenting, and for other
scruples which did arise in the case, one of the Peers
did desire that the House might be adjourned, to
consider further of the particulars. Hereupon the
Lord;Steward adjourned the House to the usual
place above.
"The Lords, being come up int the- House, fell into debate of the business, and, for the better informing of their judgments what was the course and common justice of the kingdom, propounded this question to the Judges:' Whether it be according to the course
of practice and common justice, before the Judges in
their several courts, for the prosecutors inibehalf of
the King, during the time of trial, to produce witnesses to: discover the truth, and whether the prisoner
may: not do the like? ' The Lord Chief-Justice delivered this as -the unanimous opinions of himself and
all the rest of the Judges:'That, according to the
course of practice and common justice, before them
in their several courts, upon trial by jury, as long as
the prisoner is at the bar, and the jury not sent away,
either side may give their evidence and examine witnesses to discover truth; and this is all the opinion
as we can give concerning the proceedings before us. '
Upon some consideration after this, the House appointed the Earl of Bath, Earl of South'ton, Earl of
*Bis in originali.
? ? ? ? 116 IMPEACHMENT OF WARREN HASTINGS.
Hartford, Earl of Essex, Earl of Bristol, and *the
Lord Viscount Say et Seale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order
of the House:' The gentlemen of the House of Commons did declare, that they challenge to themselves, by the common justice of the kingdom, that they,
being prosecutors for the King, may bring any new
proofs by witnesses during the time of the evidence
being not fully concluded. The Lords, being judges,
and so equal to them and the prisoner, conceived this
their desire to be just and reasonable; and also that,
by the same common justice, the prisoner may use
the same liberty; and that, to avoid any occasions
of delay, the Lords thought fit that the articles and
witnesses be presently named, and such as may be
presently produced to be used presently, [andt such
as cannot to be used on Monday,] and no further
time to be given. ' The Lord Steward was to let
them know, that, if they will on both sides waive
the use of new witnesses, they may proceed to the
recollection of their evidence on both sides; if both
sides will not waive it, then the Lord Steward is to
read the precedent order; and if they will not proceed then, this House is to adjourn and rise. " *
By this it will appear to the House how much this
exclusion of evidence, brought for the discovery of truth,
is unsupported either by Parliamentary precedent or
by the rule as understood in the Common Law courts
below; and your Committee (protesting, however,
against being bound by any of the technical rules of
inferior courts) thought, and think, they had a right
to see such a body of precedents and arguments for
* Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10~ die Aprilis.
? ? ? ? REPORT ON THE LORDS' JOURNALS. 117
the rejection of evidence during trial, in some court
or other, before they were in this matter stopped and
concluded.
Your Committee has not been able to examine every criminal trial in the voluminous collection of the
State Trials, or elsewhere; but having referred to the
most laborious compiler of law and equity, Mr. Viner,
who has allotted a whole volume to the title of Evidence, we find but one- ruled case in a trial at Common Law, before or since, where new evidence for the discovery of truth: has been rejected, as not being
in due time. "A privy verdict had been given in B.
R. 14 Eliz. for the defendant; but afterwards, before
the inquest gave their verdict openly, the plaintiff
prayed that he might give more evidence to the jury,
he having (as it seemed) discovered that the ju'y had
found against him: but the Justices would not admit
him to do so; but after that Southcote J. had been
in C. B. to ask the opinion of the Justices there, they
took the verdict. " * In this case the offer of new evidence was not during the trial. The trial was over;
the verdict was actually delivered to the Judge; there
was also an appearance that the discovery of the
actual finding had suggested to the plaintiff the production of new evidence. Yet it appeared to the
Judges so strong a measure to refuse evidence, whilst
any, even formal, appearance remained that the trial
was not closed, that they sent a Judge from the bench
into the Common Pleas to obtain the opinion of their
brethren there, before they could venture to take upon'themn to consider the time for production of evidence as elapsed. The case of refusal, taken with its circumstances, is full as strong an example in
* )al. 80. PI. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.
? ? ? ? 118 IMPEACHMENT OF WARREN HASTINGS.
favor of the report of the Judges in Lord Strafford's
case as any precedent of admittance can be.
The researches of your Committee not having furnished them with any cases in which evidence has been rejected during the trial, as being out of time,
we have found some instances in which it has been
actually received, -- and received not to repel any
new matter in the prisoner's defence, but when the
prisoner had called all his witnesses, and thereby
closed his defence.
