demanding of him whether the
particulars
so suggested were not the answer he had so -made?
Edmund Burke
127
It hath, indeed, been usual, and very expedient it
is, in point of order and regularity, and for the solemnity of the proceeding, to appoint an officer for
presiding during the time of the trial, and until judgment, and to give him the style and title of Steward
of England: but this maketh no sort of alteration in
the constitution of the court; it is the same court,
founded in immemorial usage, in the law and custom
of Parliament, whether such appointment be made or
not. It acteth in its judicial capacity in every order
made touching the time and place of the trial, the
postponing the trial from time to time upon petition,
according to the nature and circumstances of the case,
the allowance or non-allowance of council to the prisoner, and other matters relative to the trial; and
all this before an High Steward hath been appointed.
And so little was it apprehended, in some cases which
I shall mention presently, that the existence of the
court depended on the appointment of an High Steward, that the court itself directed in what manner and
by What form of words he should be appointed. It
hath likewise received and recorded the prisoner's confession, which amounteth to a conviction, before the
appointment of an High Steward; and hath allowed
to prisoners the benefit of acts of general pardon,
where they appeared entitled to it, as well without
the appointment of an High Steward as after his
commission dissolved. And when, in the case of impeachments, the Commons have sometimes, at conferences between the Houses, attempted to interpose in matters preparatory to the trial, the general answer
hath been, "This is a point of judicature upon which
* See the orders previous to the trial, in the cases of the Lords Kilmarnock, &c. , and Lord Lovat, and many other modern cases.
? ? ? ? 128 IMPEACHMENT OF WARREN HASTINGS.
the Lords will not confer; they impose silence upon
themselves,". or to that effect. I need not here cite
instances; every man who hath consulted the Journals of either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present question. And I shall confine myself to such as have happened since the Restoration; because, in questions of this kind, modern cases,
settled with deliberation, and upon a view of former
precedents, give more light and satisfaction than the
deepest search into antiquity -can afford; and also because the prerogatives of the Crown, the privileges
of Parliament, and the rights of the subject in general appear to me to have been more studied and
better understood at'and for some years before that
period than in former ages.
In the case of the Earl of Danby and the Popish
lords then under impeachments, the Lords,* on the
6th of May, 1679, appointed time and place for hearing the Earl of Danby, by his council, upon the
validity of his plea of pardon, and for the trials of
the other lords, and voted an address to his Majesty,
praying that he would be pleased to appoint an High
Steward for those purposes. These votes were, on
the next day, communicated to the Commons by
message in the usual manner. On the 8th, at a conference between the Houses upon the subject-matter
of that message, the Commons expressed themselves
to the following effect:-"They cannot apprehend
what should induce your Lordships to address his
Majesty for an High Steward, for determining the
validity of the pardon which hath been pleaded by
the Earl of Danby, as also for the trial of the other
* Lords' Journals.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 129
five lords, because they conceive the constituting an
High Steward is not necessary, but that judgment
may be given in Parliament upon impeachment without an High Steward"; and concluded with a proposition, thlat, for avoiding any interruption or delay, a committee of both Houses might be nominated, to
consider of the most proper ways and methods of
proceeding. This proposition the House of Peers,
after a long debate, rejected: Dissentientibus, Finch,*
Chancellor, and many other lords. However, on the
11th, the Commons' proposition of the 8th was upon
a second debate agreed to; and the Lord Chancellor,
Lord President, and ten other lords, were named of
the committee, to meet and confer with a committee
of the Commons. The next day the Lord President
reported, that the committees of both Houses met
that morning, and made an entrance into the business
referred to them: that the Commons desired to see
the commissions that are prepared for an High Steward at these trials, and also the commissions in the Lord Pembroke's and the Lord Morley's -cases: that to
this the Lords' committees said, - "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, they have power enough to
proceed to trial, though the King should not name an
High Steward: t that this seemed to be a satisfaction
* Afterwards Earl of Nottingham.
t In the Commons' Journal of the 15th of May it standeth thus:::
-- Their Lordships further declared to the committee, that a Lord
High Steward was made hac vice only; that, notwithstanding the making of a Lord High Steward, the court remained the same, and was not thereby altered, but still remained the Court of Peers in Parliament;
that the Lord High Steward was but as a Speaker or Chairman, for
the more orderly proceeding at the trials. "
VOL. XI. 9
? ? ? ? 130 IMPEACHMENT OF WARREN HASTINGS.
to the Commons, provided it was entered in the Lords
Journals, which. are r'ecords. " Accordingly, on the
same day, -"It is declared and ordered by the Lords
Spiritual and Temporal in Parliament:assembled, that
the office of an High Steward, upon 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 be not, appointed according to their humble desire. " * On the 13th the Lord President reported, that -the committees of both Houses had met that
morning, and discoursed, in the first, place, on the'matter of a Lord High Steward, and -had perused former commissions for the office of High Steward;
and then, putting the House in mind of the order and
resolution of the preceding day, proposed from the
committees that a new commission might issue, so as
the words in the commission may be thus changed:
viz. , Instead of, Ac pro eo quod officium Seneschalli
Anglice, (cujus proesentia in -hac parte requiritur,) ut
accepimus, jam vacat,:may be inserted,:Ae pro eo quod
proceres et magnates: in Parliamento nostro assemblati
nobis humiliter supplicaverunt- ut Seneschallumr Anglice
pro hac vice eonstituere -dignaremur:- to which the
House agreed. t
* This resolution my Lord Chief-Baron referred to and cited in
his argument upon the second question proposed to the Judges, which
is before stated.
t This amendment arose from an exception taken to the commission
by the committee for the Commons, which, as it then stood, did in
their opinion imply that the constituting a Lord High Steward was
necessary. Whereupon it was agreed by the whole committee of
Lords and Commons, that the commission should be recalled, and a
new commission, according to the said amendment, issue, to bear date
after the order and resolution of the 12th. Commons' Journal of the
15th of May.
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 131
It must be admitted that precedents drawn from
times of ferment and jealousy, as these were, lose
much of their weight, since passion and party prejudice generally mingle in the contest; yet let it be remembered, that these are resolutions in which both
Houses concurred, and in which the rights of both
were thought to be very nearly concerned,- the
Commons' right of impeaching with effect, and the
whole judicature of the Lords in capital cases. For,
if the appointment of an High Steward was admitted to be of absolute necessity, (however necessary it may be for the regularity and solemnity of the proceeding during the trial and until judgment, which
I do not dispute,) every impeachment may, for a reason too obvious to be mentioned, be rendered ineffectual, and the judicature of the Lords in all capital cases nugatory.
It was from a jealousy of this kind, not at that
juncture altogether groundless, and to guard against
everything from whence the necessity of an High
Steward in the case of an impeachment might be
inferred, that the Commons proposed and the Lords
readily agreed to the amendment in the Steward's
commission which I have already stated. And it
hath, I confess, great weight with me, that this
amendment, which'w'as at the same time directed
in the cases of the five Popish lords, when commissions should pass for their trials, hath taken place in every commission upon impeachments for treason
since that time. * And I cannot help remarking,
that in the case of Lord Lovat, when neither the heat
* See, in the State Trials, the commissions in the cases of the Earl
of Oxford, Earl of Derwentwater, and others, -- Lord Wintoun and
Lord Lovat.
? ? ? ? 132 IMPEACHMENT OF WARREN HASTINGS.
of the times nor the jealousy of parties had any share
in the proceeding, the House ordered, "That the
commission for appointing a Lord High Steward
shall be in the like form as that for the trial of the
Lord Viscount Stafford, as entered in the Journal of this House on the 30th of November, 1680:
except that the same shall be in the English language. " *
I will make a short observation on this matter.
The order, on the 13th of May, 1679, for varying
the form of the commission, was, as appeareth by the
Journal, plainly made in consequence of the resolution. of the 12th, and was founded on it; and consequently the constant, unvarying practice with regard to the new form goeth, in my opinion, a great way
towards showing, that, in the sense of all succeeding
times, that resolution was not the result- of faction or
a blamable jealousy, but was founded in sound reason and true policy. It may be objected, that the
resolution of the 12th of May, 1679, goeth no further
than to a proceeding upon impeachment. The letter
of the resolution, it is admitted, goeth no further.
But this is easily accounted for: a proceeding by impeachment was the subject-matter of the conference,
and the Commons had no pretence to interpose in
any other. But what say the Lords? The High
Steward is but as a Speaker or Chairman po tempore, for the more orderly proceeding at the trials;
the appointment of him doth not alter the nature of
the court, which still remaineth the Court of the Peers
in Parliament. From these premises they draw the
conclusion I have mentioned. Are not these prem* See the proceedings printed by order of the House of Lords, 4th
February, 1746.
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 133
ises equally true in the case of a proceeding upon
indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such
cases. The words objected to by the Commons, Ac
pro eo quod oficium Seneschalli Anglice, (eujus preesentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that
the Great Seal, having no authority to vary in point
of form, hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in the Court of the High
Steward. I will now state the substance of that in a
proceeding in the Court of the Peers in Parliament;
and shall make use of that in the case of the Earl of
Kilmarnock and others, as being the latest, and in
point of form agreeing with the former precedents.
The commission, after reciting that William; Earl of
Kilmarnock, &c. , stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the
King intendeth that the said William, Earl of KUilmarnock, &c. , shall be heard, examined, sentenced,
and adjudged before himself, in this present Parliament, touching the said treason, and for that the
office of Steward of Great Britain (whose presence
is required upon this occasion) is now vacant, as we
are informed, appointeth the then Lord Chancellor
Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things
due and belonging to the same office, in that behalf.
? ? ? ? 134. 'IMPEACHMENT OF WARREN HASTINGS.
What, therefore, are the things due and belonging
to the office in a case of this kind? Not, as in the
Court of the High Steward, a right of judicature; for
the commission itself supposeth that right to reside
in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth
the High Steward, then, take? By the practice and
usage of the Court of the Peers in Parliament, he
giveth his vote as a member thereof, with the rest of
the peers; but, for the sake of regularity and order,
he presideth during the trial and until judgment, as
Chairman or Speaker pro tempore. In that respect,
therefore, it may be prpoperly enough said, that his
presence is required during the trial and until judgment, and in no other. Herein I see no difference between the case of an impeachment and of an indictment. I say, during the time of the trial. and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High
Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved.
I will to this purpose cite a few cases.
I begin with the latest, because they are the latest,
and were ruled with great deliberation, and for the
most part upon a view of former precedents. In the
case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or
writs of Certiorari be issued for removing the indictinents before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read. On the next day, upon the report of the
? ? ? ? REPORT. ON. THE LORDS' JOURNALS. - APPENDIX. 135 Lords' committees,: that. . they had been attended by the Itwo Chief-Justices and OChief-Baron, and, had heard them touching the construction of the act of the 7th and 8th of King William,: "for regulating
trials in cases of high treason and misprision of
treason,s" the i House, upon reading the report, came
to several:resolutions, founded for the most part
on the construction of ithat act. What that construction was, appeareth- from the Lord. High Steward's address to the prisoners just before their arraignment. Having mentioned that act as one happy consequence of the Revolution,:he. addeth, -
"However injuriously that revolution hath been traduced, whatever attempts have been made to subvert
this happy: establishment founded on it, your Lordships will now have the benefit, of: that law in its full
extent. "
I need not, after, this, mention any other judicial
acts done by the House in this case, before the appointment of the High Steward: many there are.
For the putting a construction upon-an act relative
to the conduct of the court and the right of the subject at the trial, and in the proceedings preparatory to
it, and this in a case entirely new, and npon a point,
to say no more: in this place, not, extremely clear,
was undoubtedly an exercise of authority proper only
for a court having full cognizance of the cause.
I will not minutely enumerate the several orders
made preparatory to the trial of Lord Lovat, and in
the several cases I shall have occasion to mention,
touching the time and place of the trial, the allowance or non-allowance of council, and other matters
of the like kind, all plainly judicial; because the like
orders occur in all the cases where a journal of the
? ? ? ? 136 IMPEACHMENT OF WARREN HASTINGS.
preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think
the order directing the form of the High Steward's
commission, which I have already taken notice of, is
not very consistent with the idea of a court whose
powers can be supposed to depend, at any point of
time, upon the existence or dissolution of that commission.
In the case of the Earl of Derwentwater and the
other lords impeached at the same time, the House
received and recorded the confessions of those of them
who pleaded guilty, long before the teste of the High
Steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself.
It reciteth, that the Earl of Derwentwater and others, coram nobis in prcesenti Parliamento, had been impeached by the Commons for high treason, and had,
coram nobis in prcesenti Parliamento, pleaded guilty
to that impeachment; and that the King, intending
that the said Earl of Derwentwater and others, de et
pro proditione unde ipsi ut prcefertur impetit', accusat',
et convict' existunt coram nobis in prcesenti Parliamento,
secundum legem et consuetudinem hujus regni nostri
Magnce Britannice, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hae vice) to do and execute all things which
to the office of High Steward in that behalf do belong.
The receiving and recording the confession of the
prisoners, which amounted to a conviction, so that
nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no
assembly, how great soever, not having full cognizance of the cause, could exercise.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 137
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his petition, allowed him the benefit of the act
of general pardon passed in the second year of William
and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that
case. On the 2d of October, 1690, upon reading
the Earl's petition, setting forth that he had been a
prisoner for a year and nine months in the Tower,
notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to
give their opinions whether the said Earl be pardoned
by the act. On the 6th the Judges delivered their
opinions, that, if his offence was committed before
the 13th of February, 1688, and not in Ireland or
beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day
he and his sureties entered into a recognizance of bail,
himself in ten thousand pounds, and two sureties in
five thousand pounds each; and on the 30th he and
his sureties were, after a long debate, discharged
from their recognizance. * It will not be material to
inquire whether the House did right in discharging
the Earl without- giving the Commons all opportunity
of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,
- which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after
the High Steward's commission dissolved. These
lords had judgment passed on them at the same time
- See the Journals of the Lords.
? ? ? ? 138 - IMPEACHMENT OF WARREN HASTINGS.
that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his
staff, and declared'the commission dissolved. They
continued prisoners in the Tower under reprieves,
till the passing the act of general pardon, in the 3d
of King George I. On the 21st of November, 1717,
the House being informed that these lords had severally entered into recognizances before one of the
judges of the Court of King's Bench for their appearance in the House in this session of: Parliament,
and that the LOrds Carnwarth and Widdrington were
attending accordingly, and that the Lord Nairn was ill
at Bath and could not then- attend, the Lords Carnwarth and Widdrington were called in, and severally
at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act * for
his Majesty's general and free pardon. Whereupon
the House ordered that their appearance be recorded,
and that they attend again to-morrow, in order to plead
the pardon; and the recognizance of the Lord Nairn
was respited till that day fortnight. :On the morrow
the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attaint-'ed of high treason, and asked them severally what they had to say why they should not be remanded
to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and
that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who. then
attended for that purpose, declaring that he had no
3. Geo. I. c. 19.
? ? ? ? REPORT ON THE-LORDS' JOURNALS. - APPENDIX. 139
objection on his Majesty's behalf to what was prayed,
conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading the clause
in the act relating to that matter,* agreed that they
should be allowed the benefit of the pardon, as to
their lives and liberties, and discharged their recognizances; and gave them leave to depart without further day given for their appearance. On the 6th of
December following, the like- proceedings were had,
and the like orders made, in;the case of Lord Nairn. 4
- I observe that the Lord- Chancellor did not ask these
lbrds what they had to say why execution should not
be awarded. There was, it is probable, some little
delicacy as to that point. But since the allowance of
the benefit of the act, as: to life and liberty, which
was all that was prayed, was an effectual bar to any
future imprisonment on that account, and also to execution, and might have been pleaded as such in any
court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High, Steward's- commission had been long dissolved, -which is all the use I intended to' make of this case.
I will not recapitulate: the cases I have cited, and
the conclusions drawn from them, are brought into a
very narrow compass. I will only add, that it would
sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and
held in judgment of law before the King himself, can
in any event whatever be under an utter, incapacity
of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every
* See sect. 45 of the 3d Geo. I. t Lords' Journals.
? ? ? ? 140 IMPEACHMENT OF WARREN HASTINGS.
criminal proceeding, without certain supplemental
powers derived from the Crown.
These cases, with the observations I have made on
them, I hope sufficiently warrant the opinion of the
Judges upon that part of the second question, in the
case of the late Earl Ferrers, which I have already
mentioned, - and also what was advanced by the
Lord Chief-Baron in his argument on that question,
-" That, though the office of High Steward should
happen to determine before execution done according to the judgment, yet the- Court of the Peers in
Parliament, where that judgment was given, would
subsist for all the purposes of justice during the sitting of the Parliament," and consequently, that, in
the case supposed by the question, that court might
appoint a new day for the execution.
No. II.
QUESTIONS referred by the Lords to the Judges, in
the Impeachment of Warren Hastings, Esquire, and
the Answers of the Judges. -Extracted from the
Lords' Journals and Minutes.
First.
Question. - Whether, when a witness produced and
examined in a criminal proceeding by a prosecutor
disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 141 have been made by such witness before a committee of the House of Commons, or in any other place,
and by.
demanding of him whether the particulars so suggested were not the answer he had so -made? 1788, February 29. - Pa& 418.
Answer. -The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:" That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all
knowledge of any matter so interrogated, it is not
competent for such prosecutor to pursue such examination, by proposing a question containing the. particulars of an answer supposed to have been made by such witness before a committee of the
House of Commons, or in any other place, and by
demanding of him whether the particulars so suggested were not the answer he had so made. "
1788, April 10. - Pa. 592.
Second.
Question. -Whether it be competent for the Managers to produce an examination taken without oath
by the rest of the Council in the absence of Mr.
Hastings, the Governor-General, charging Mr. Hlastings with corruptly receiving 3,54,105 rupees, which
examination came to his knowledge, and was by
him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce
the proof of his demeanor thereupon, --it being alleged by the Managers for the Commons, that he took
? ? ? ? 142 IMPEACHMENT OF WARREN HASTINGS.
no steps to clear himself, in the opinion of the said
Directors, of the guilt thereby imputed, but that he
took active means to prevent the examination by the
said Councillors of his servant Cantoo. Baboo. ?
1789, May 14. - Pa. 677.
Answer. - The Lord Chief-Baron. of the Court of
Exchequer delivered the unanimous opinion! of the
Judges upon the said question, in the. negative, -- and
gave his reasons. . 1789, May 20. -Pa. 718.
Third.
Question. -Whether the instructions from the Court
of Directors of the United Company of Merchants of
England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General' John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (constituted and appointed the GovernorGeneral and Council of the said United Company's Presidency of Fort William in Bengal, by an act of
Parliament passed in the last session, intituled, " An
act for establishing certain regulations for the better
management of the affairs of the East India Company,
as well in India as in Europe,") of the 29th of March,
1774, Par. 31, 32, and 35, the Consultation of the
11th March, 1775, the Consultation of the 13th of
March, 1775, up to the time that Mr. Hastings left
the Council, the Consultation of the 20th of March,
1775, the letter written. byMr. Hastings to the Court
of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or
defend his conduct,) are sufficient to. introduce the
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 143 examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council, - such examination
and proceedings charging Mr. Hastings with corruptly receiving 3,54,105 rupees? 1789, May 21. - Pa. 730.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the negative,- and
gave his reasons. 1789, May- 27. - Pa. 771.
Fourth.
Question. - Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the pait of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings, - and it being in proof, that Mr. Hastings, on the 11th of
May, 1778, moved the Board to comply. with the
requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board, -- ought to be read?
1789, June 17. - Pa. 855.
Answer. The Lord Chief-Baron of the Court of Exchequer delivered the unanimous- opinion of the
? ? ? ? 144 IMPEACHMENT OF WARREN HASTINGS.
Judges upon the said question, in the negative, -and
gave his reasons. 1789, June 24. - Pa. 922.
Fiifth.
Question. - Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in
order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of
the Nabob Mobarek ul Dowlah, --and which paper
was the subject of the deliberation of the Council on
the 31st July, 1775, Mr. Hastings being then present,
and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,may be admitted as evidence of the actual state and situation of the Nabob with reference to the English
government? 1789, July 2. - Pa. 1001.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the affirmative,and gave his reasons. 1789, July 7. - Pa. 1030.
Sixth.
Question. -Whether it be or be not competent to
the Managers for the Commons to give evidence upon
the charge in the sixth article, to prove that the rent,
at which the defendant, Warren Hastings, let the
lands mentioned in the said sixth article of charge
to Kelleram, fell into arrear and was deficient, - and
? ? ? ? REPORT ON THE LORDS' JOURNALS. -APPENDIX. 145 whether, if proof were offered that the rent fell in arrear immediately after the letting, the evidence would in that case be competent?
1790, April 22. - Pa. 364.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to give
evidence upon the charge in the sixth article, to prove
that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article
of charge to Kelleram, fell into arrear and was deficient," -and gave his reasons.
1790, April 27. - Pa. 388.
Seventh.
Question. - Whether it be competent for the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz. :
"What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"? 1790, April 27. -Pa. 391.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the sixth
article of charge, viz. : What impression the letting
of the lands to Kelleram and Cullian Sing made on
the: minds of the inhabitants of that country," - and
gave his reasons. 1790, April 29. -Pa. 413.
VOL. XI. 10
? ? ? ? 146 IMPEACHMENT OF WARREN HASTINGS. -Eighth.
Question. - Whether it be competent to the Mana. gers for the Commons to put the following question to the witness, upon the seventh article of charge, viz. : "Whether more oppressions did actually exist under the new institution than under the old"? 1790, April 29. -Pa. 415.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the
seventh article of charge, viz. : Whether more oppressions did actually exist under the new institution than under the old," - and gave his reasons.
1790, May 4. - Pa. 428.
Ninth
Question. -- Whether the letter of the 13th April, 1781, can be given in evidence by the Managers for the Commons, to prove that the letter of the 5th of May, 1781, already given in evidence, relative to the abolition of the Provincial Council and the subsequent appointment of the Committee of Revenue, was false in any other particular than that which is charged in the seventh article of charge?
1790, May 20. '-Pa. 557.
Answer. - The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,-" That it is not competent for the Managers on the part of the Corm mons to give any evidence on the seventh article of
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX, 147 impeachment, to prove that the letter of the 5th of May, 1781, is false in any other particular than that wherein it is expressly charged to be false," -- and gave his reasons. 1790, June 2. -Pa. 634.
Tenth.
Question. -Whether it be competent to the Managers for the Commons to examine the witness to any
account of the debate which was had on the 9th day
of July, 1778, previous to the written minutes that
appear upon the Consdltation of that date?
1794, February 25. - Lords' Minutes.
Answer. -The Lord Chief-Justice of the Court of
Common Pleas delivered the unanimous opinion of
the Judges upon the said question, -" That it is not
competent to the Managers for the Commons to examine the witness, Philip Francis, Esquire, to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date," -- and
gave his reasons.
1794, February 27. - Lords' Minutes.
Eleventh.
Question. - Whether it is competent for the Managers for the Commons, in reply, to ask the witness,
whether, between the time of the original demand
being made upon Cheyt Sing and the period of the
witness's leaving Bengal, it was at any time in his
power to have reversed or put a stop to the demand
upon Cheyt Sing, -the same not being relative to any
matter originally given in evidence by the defendant?
1794, February 27. - Lords' Minutes.
? ? ? ? 148:IMPEACHMENT'OF WARREN HASTINGS.
Answer. - The Lord Chief-Justice of the Court of
Common Pleas delivered the unanimous opinion of
the Judges upon the said question, -" That it is not
competent for the Managers for the Commons to ask
the witness, whether, between the time of the original
demand being made upon Cheyt Sing and the period
of his leaving Bengal, it was at any time in his power
to have reversed or put a stop to the demand upon
Cheyt Sing, --the same not being relative to any
matter originally given in evidence by the defendant," - and gave his reasons.
1794, March 1. - Lords' Minutes.
Twelfth.
Question. - Whether a paper, read in the Court of
Directors on the 4th of November, 1783, and then
referred by them to the consideration of the Committee of the whole Court, and again read in the
Court of Directors on the 19th of November, 1783,
and amended and ordered by them to be published
for the information of the Proprietors, can be received in evidence, in reply, to rebut the evidence,
given by the defendant, of the thanks of the Court
of Directors, signified to him on the 28th of June,
1785? 1794, March 1. - Lords' Minutes.
Answer. - Whereupon the Lord Chief-Justice of
the Court of Common Pleas, having conferred with
the rest of the Judges present, delivered their unanimous opinion upon the said question, in the negative,- and gave his reasons. 1794, March 1. Lords' Minutes.
? ? ? ? REMARKS
IN
VINDICATION OF THE PRECEDING REPORT.
THE preceding Report was ordered to be printed for the
use of the members of the House. of Commons, and was
soon afterwards reprinted and published, in the shape of
a pamphlet, by a London bookseller. In the course of a
debate which took place in. the House of Lords, on Thursday, the 22d of May, 1794, on the Treason and Sedition Bills, Lord Thurlow took occasion to mention "a pamphlet
which his Lordship said was published by one Debrett, of
Piccadilly, and which had that day been put into his hands,
reflecting highly upon the Judges and many members of
that House. This pamphlet was, he said, scandalous and
indecent, and such as he thought ought not to pass unnoticed. He considered the vilifying and misrepresenting the conduct of judges and magistrates, intrusted with the
administration of justice and the laws of the country, to
be a crime of a very heinous nature, and most destructive
in its consequences, because it tended tolower them in the.
opinion of those who ought to feel a proper reverence and
respect for their high and important stations; and that,
when it was stated to the ignorant or the wicked that their
judges and magistrates were ignorant and corrupt, it tended
to lessen their respect for and obedience to the laws themselves, by teaching them to think ill of those who admin
?
It hath, indeed, been usual, and very expedient it
is, in point of order and regularity, and for the solemnity of the proceeding, to appoint an officer for
presiding during the time of the trial, and until judgment, and to give him the style and title of Steward
of England: but this maketh no sort of alteration in
the constitution of the court; it is the same court,
founded in immemorial usage, in the law and custom
of Parliament, whether such appointment be made or
not. It acteth in its judicial capacity in every order
made touching the time and place of the trial, the
postponing the trial from time to time upon petition,
according to the nature and circumstances of the case,
the allowance or non-allowance of council to the prisoner, and other matters relative to the trial; and
all this before an High Steward hath been appointed.
And so little was it apprehended, in some cases which
I shall mention presently, that the existence of the
court depended on the appointment of an High Steward, that the court itself directed in what manner and
by What form of words he should be appointed. It
hath likewise received and recorded the prisoner's confession, which amounteth to a conviction, before the
appointment of an High Steward; and hath allowed
to prisoners the benefit of acts of general pardon,
where they appeared entitled to it, as well without
the appointment of an High Steward as after his
commission dissolved. And when, in the case of impeachments, the Commons have sometimes, at conferences between the Houses, attempted to interpose in matters preparatory to the trial, the general answer
hath been, "This is a point of judicature upon which
* See the orders previous to the trial, in the cases of the Lords Kilmarnock, &c. , and Lord Lovat, and many other modern cases.
? ? ? ? 128 IMPEACHMENT OF WARREN HASTINGS.
the Lords will not confer; they impose silence upon
themselves,". or to that effect. I need not here cite
instances; every man who hath consulted the Journals of either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present question. And I shall confine myself to such as have happened since the Restoration; because, in questions of this kind, modern cases,
settled with deliberation, and upon a view of former
precedents, give more light and satisfaction than the
deepest search into antiquity -can afford; and also because the prerogatives of the Crown, the privileges
of Parliament, and the rights of the subject in general appear to me to have been more studied and
better understood at'and for some years before that
period than in former ages.
In the case of the Earl of Danby and the Popish
lords then under impeachments, the Lords,* on the
6th of May, 1679, appointed time and place for hearing the Earl of Danby, by his council, upon the
validity of his plea of pardon, and for the trials of
the other lords, and voted an address to his Majesty,
praying that he would be pleased to appoint an High
Steward for those purposes. These votes were, on
the next day, communicated to the Commons by
message in the usual manner. On the 8th, at a conference between the Houses upon the subject-matter
of that message, the Commons expressed themselves
to the following effect:-"They cannot apprehend
what should induce your Lordships to address his
Majesty for an High Steward, for determining the
validity of the pardon which hath been pleaded by
the Earl of Danby, as also for the trial of the other
* Lords' Journals.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 129
five lords, because they conceive the constituting an
High Steward is not necessary, but that judgment
may be given in Parliament upon impeachment without an High Steward"; and concluded with a proposition, thlat, for avoiding any interruption or delay, a committee of both Houses might be nominated, to
consider of the most proper ways and methods of
proceeding. This proposition the House of Peers,
after a long debate, rejected: Dissentientibus, Finch,*
Chancellor, and many other lords. However, on the
11th, the Commons' proposition of the 8th was upon
a second debate agreed to; and the Lord Chancellor,
Lord President, and ten other lords, were named of
the committee, to meet and confer with a committee
of the Commons. The next day the Lord President
reported, that the committees of both Houses met
that morning, and made an entrance into the business
referred to them: that the Commons desired to see
the commissions that are prepared for an High Steward at these trials, and also the commissions in the Lord Pembroke's and the Lord Morley's -cases: that to
this the Lords' committees said, - "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, they have power enough to
proceed to trial, though the King should not name an
High Steward: t that this seemed to be a satisfaction
* Afterwards Earl of Nottingham.
t In the Commons' Journal of the 15th of May it standeth thus:::
-- Their Lordships further declared to the committee, that a Lord
High Steward was made hac vice only; that, notwithstanding the making of a Lord High Steward, the court remained the same, and was not thereby altered, but still remained the Court of Peers in Parliament;
that the Lord High Steward was but as a Speaker or Chairman, for
the more orderly proceeding at the trials. "
VOL. XI. 9
? ? ? ? 130 IMPEACHMENT OF WARREN HASTINGS.
to the Commons, provided it was entered in the Lords
Journals, which. are r'ecords. " Accordingly, on the
same day, -"It is declared and ordered by the Lords
Spiritual and Temporal in Parliament:assembled, that
the office of an High Steward, upon 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 be not, appointed according to their humble desire. " * On the 13th the Lord President reported, that -the committees of both Houses had met that
morning, and discoursed, in the first, place, on the'matter of a Lord High Steward, and -had perused former commissions for the office of High Steward;
and then, putting the House in mind of the order and
resolution of the preceding day, proposed from the
committees that a new commission might issue, so as
the words in the commission may be thus changed:
viz. , Instead of, Ac pro eo quod officium Seneschalli
Anglice, (cujus proesentia in -hac parte requiritur,) ut
accepimus, jam vacat,:may be inserted,:Ae pro eo quod
proceres et magnates: in Parliamento nostro assemblati
nobis humiliter supplicaverunt- ut Seneschallumr Anglice
pro hac vice eonstituere -dignaremur:- to which the
House agreed. t
* This resolution my Lord Chief-Baron referred to and cited in
his argument upon the second question proposed to the Judges, which
is before stated.
t This amendment arose from an exception taken to the commission
by the committee for the Commons, which, as it then stood, did in
their opinion imply that the constituting a Lord High Steward was
necessary. Whereupon it was agreed by the whole committee of
Lords and Commons, that the commission should be recalled, and a
new commission, according to the said amendment, issue, to bear date
after the order and resolution of the 12th. Commons' Journal of the
15th of May.
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 131
It must be admitted that precedents drawn from
times of ferment and jealousy, as these were, lose
much of their weight, since passion and party prejudice generally mingle in the contest; yet let it be remembered, that these are resolutions in which both
Houses concurred, and in which the rights of both
were thought to be very nearly concerned,- the
Commons' right of impeaching with effect, and the
whole judicature of the Lords in capital cases. For,
if the appointment of an High Steward was admitted to be of absolute necessity, (however necessary it may be for the regularity and solemnity of the proceeding during the trial and until judgment, which
I do not dispute,) every impeachment may, for a reason too obvious to be mentioned, be rendered ineffectual, and the judicature of the Lords in all capital cases nugatory.
It was from a jealousy of this kind, not at that
juncture altogether groundless, and to guard against
everything from whence the necessity of an High
Steward in the case of an impeachment might be
inferred, that the Commons proposed and the Lords
readily agreed to the amendment in the Steward's
commission which I have already stated. And it
hath, I confess, great weight with me, that this
amendment, which'w'as at the same time directed
in the cases of the five Popish lords, when commissions should pass for their trials, hath taken place in every commission upon impeachments for treason
since that time. * And I cannot help remarking,
that in the case of Lord Lovat, when neither the heat
* See, in the State Trials, the commissions in the cases of the Earl
of Oxford, Earl of Derwentwater, and others, -- Lord Wintoun and
Lord Lovat.
? ? ? ? 132 IMPEACHMENT OF WARREN HASTINGS.
of the times nor the jealousy of parties had any share
in the proceeding, the House ordered, "That the
commission for appointing a Lord High Steward
shall be in the like form as that for the trial of the
Lord Viscount Stafford, as entered in the Journal of this House on the 30th of November, 1680:
except that the same shall be in the English language. " *
I will make a short observation on this matter.
The order, on the 13th of May, 1679, for varying
the form of the commission, was, as appeareth by the
Journal, plainly made in consequence of the resolution. of the 12th, and was founded on it; and consequently the constant, unvarying practice with regard to the new form goeth, in my opinion, a great way
towards showing, that, in the sense of all succeeding
times, that resolution was not the result- of faction or
a blamable jealousy, but was founded in sound reason and true policy. It may be objected, that the
resolution of the 12th of May, 1679, goeth no further
than to a proceeding upon impeachment. The letter
of the resolution, it is admitted, goeth no further.
But this is easily accounted for: a proceeding by impeachment was the subject-matter of the conference,
and the Commons had no pretence to interpose in
any other. But what say the Lords? The High
Steward is but as a Speaker or Chairman po tempore, for the more orderly proceeding at the trials;
the appointment of him doth not alter the nature of
the court, which still remaineth the Court of the Peers
in Parliament. From these premises they draw the
conclusion I have mentioned. Are not these prem* See the proceedings printed by order of the House of Lords, 4th
February, 1746.
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 133
ises equally true in the case of a proceeding upon
indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such
cases. The words objected to by the Commons, Ac
pro eo quod oficium Seneschalli Anglice, (eujus preesentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that
the Great Seal, having no authority to vary in point
of form, hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in the Court of the High
Steward. I will now state the substance of that in a
proceeding in the Court of the Peers in Parliament;
and shall make use of that in the case of the Earl of
Kilmarnock and others, as being the latest, and in
point of form agreeing with the former precedents.
The commission, after reciting that William; Earl of
Kilmarnock, &c. , stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the
King intendeth that the said William, Earl of KUilmarnock, &c. , shall be heard, examined, sentenced,
and adjudged before himself, in this present Parliament, touching the said treason, and for that the
office of Steward of Great Britain (whose presence
is required upon this occasion) is now vacant, as we
are informed, appointeth the then Lord Chancellor
Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things
due and belonging to the same office, in that behalf.
? ? ? ? 134. 'IMPEACHMENT OF WARREN HASTINGS.
What, therefore, are the things due and belonging
to the office in a case of this kind? Not, as in the
Court of the High Steward, a right of judicature; for
the commission itself supposeth that right to reside
in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth
the High Steward, then, take? By the practice and
usage of the Court of the Peers in Parliament, he
giveth his vote as a member thereof, with the rest of
the peers; but, for the sake of regularity and order,
he presideth during the trial and until judgment, as
Chairman or Speaker pro tempore. In that respect,
therefore, it may be prpoperly enough said, that his
presence is required during the trial and until judgment, and in no other. Herein I see no difference between the case of an impeachment and of an indictment. I say, during the time of the trial. and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High
Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved.
I will to this purpose cite a few cases.
I begin with the latest, because they are the latest,
and were ruled with great deliberation, and for the
most part upon a view of former precedents. In the
case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or
writs of Certiorari be issued for removing the indictinents before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read. On the next day, upon the report of the
? ? ? ? REPORT. ON. THE LORDS' JOURNALS. - APPENDIX. 135 Lords' committees,: that. . they had been attended by the Itwo Chief-Justices and OChief-Baron, and, had heard them touching the construction of the act of the 7th and 8th of King William,: "for regulating
trials in cases of high treason and misprision of
treason,s" the i House, upon reading the report, came
to several:resolutions, founded for the most part
on the construction of ithat act. What that construction was, appeareth- from the Lord. High Steward's address to the prisoners just before their arraignment. Having mentioned that act as one happy consequence of the Revolution,:he. addeth, -
"However injuriously that revolution hath been traduced, whatever attempts have been made to subvert
this happy: establishment founded on it, your Lordships will now have the benefit, of: that law in its full
extent. "
I need not, after, this, mention any other judicial
acts done by the House in this case, before the appointment of the High Steward: many there are.
For the putting a construction upon-an act relative
to the conduct of the court and the right of the subject at the trial, and in the proceedings preparatory to
it, and this in a case entirely new, and npon a point,
to say no more: in this place, not, extremely clear,
was undoubtedly an exercise of authority proper only
for a court having full cognizance of the cause.
I will not minutely enumerate the several orders
made preparatory to the trial of Lord Lovat, and in
the several cases I shall have occasion to mention,
touching the time and place of the trial, the allowance or non-allowance of council, and other matters
of the like kind, all plainly judicial; because the like
orders occur in all the cases where a journal of the
? ? ? ? 136 IMPEACHMENT OF WARREN HASTINGS.
preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think
the order directing the form of the High Steward's
commission, which I have already taken notice of, is
not very consistent with the idea of a court whose
powers can be supposed to depend, at any point of
time, upon the existence or dissolution of that commission.
In the case of the Earl of Derwentwater and the
other lords impeached at the same time, the House
received and recorded the confessions of those of them
who pleaded guilty, long before the teste of the High
Steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself.
It reciteth, that the Earl of Derwentwater and others, coram nobis in prcesenti Parliamento, had been impeached by the Commons for high treason, and had,
coram nobis in prcesenti Parliamento, pleaded guilty
to that impeachment; and that the King, intending
that the said Earl of Derwentwater and others, de et
pro proditione unde ipsi ut prcefertur impetit', accusat',
et convict' existunt coram nobis in prcesenti Parliamento,
secundum legem et consuetudinem hujus regni nostri
Magnce Britannice, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hae vice) to do and execute all things which
to the office of High Steward in that behalf do belong.
The receiving and recording the confession of the
prisoners, which amounted to a conviction, so that
nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no
assembly, how great soever, not having full cognizance of the cause, could exercise.
? ? ? ? REPORT ON THE LORDS' JOURNALS. APPENDIX. 137
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his petition, allowed him the benefit of the act
of general pardon passed in the second year of William
and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that
case. On the 2d of October, 1690, upon reading
the Earl's petition, setting forth that he had been a
prisoner for a year and nine months in the Tower,
notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to
give their opinions whether the said Earl be pardoned
by the act. On the 6th the Judges delivered their
opinions, that, if his offence was committed before
the 13th of February, 1688, and not in Ireland or
beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day
he and his sureties entered into a recognizance of bail,
himself in ten thousand pounds, and two sureties in
five thousand pounds each; and on the 30th he and
his sureties were, after a long debate, discharged
from their recognizance. * It will not be material to
inquire whether the House did right in discharging
the Earl without- giving the Commons all opportunity
of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,
- which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after
the High Steward's commission dissolved. These
lords had judgment passed on them at the same time
- See the Journals of the Lords.
? ? ? ? 138 - IMPEACHMENT OF WARREN HASTINGS.
that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his
staff, and declared'the commission dissolved. They
continued prisoners in the Tower under reprieves,
till the passing the act of general pardon, in the 3d
of King George I. On the 21st of November, 1717,
the House being informed that these lords had severally entered into recognizances before one of the
judges of the Court of King's Bench for their appearance in the House in this session of: Parliament,
and that the LOrds Carnwarth and Widdrington were
attending accordingly, and that the Lord Nairn was ill
at Bath and could not then- attend, the Lords Carnwarth and Widdrington were called in, and severally
at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act * for
his Majesty's general and free pardon. Whereupon
the House ordered that their appearance be recorded,
and that they attend again to-morrow, in order to plead
the pardon; and the recognizance of the Lord Nairn
was respited till that day fortnight. :On the morrow
the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attaint-'ed of high treason, and asked them severally what they had to say why they should not be remanded
to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and
that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who. then
attended for that purpose, declaring that he had no
3. Geo. I. c. 19.
? ? ? ? REPORT ON THE-LORDS' JOURNALS. - APPENDIX. 139
objection on his Majesty's behalf to what was prayed,
conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading the clause
in the act relating to that matter,* agreed that they
should be allowed the benefit of the pardon, as to
their lives and liberties, and discharged their recognizances; and gave them leave to depart without further day given for their appearance. On the 6th of
December following, the like- proceedings were had,
and the like orders made, in;the case of Lord Nairn. 4
- I observe that the Lord- Chancellor did not ask these
lbrds what they had to say why execution should not
be awarded. There was, it is probable, some little
delicacy as to that point. But since the allowance of
the benefit of the act, as: to life and liberty, which
was all that was prayed, was an effectual bar to any
future imprisonment on that account, and also to execution, and might have been pleaded as such in any
court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High, Steward's- commission had been long dissolved, -which is all the use I intended to' make of this case.
I will not recapitulate: the cases I have cited, and
the conclusions drawn from them, are brought into a
very narrow compass. I will only add, that it would
sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and
held in judgment of law before the King himself, can
in any event whatever be under an utter, incapacity
of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every
* See sect. 45 of the 3d Geo. I. t Lords' Journals.
? ? ? ? 140 IMPEACHMENT OF WARREN HASTINGS.
criminal proceeding, without certain supplemental
powers derived from the Crown.
These cases, with the observations I have made on
them, I hope sufficiently warrant the opinion of the
Judges upon that part of the second question, in the
case of the late Earl Ferrers, which I have already
mentioned, - and also what was advanced by the
Lord Chief-Baron in his argument on that question,
-" That, though the office of High Steward should
happen to determine before execution done according to the judgment, yet the- Court of the Peers in
Parliament, where that judgment was given, would
subsist for all the purposes of justice during the sitting of the Parliament," and consequently, that, in
the case supposed by the question, that court might
appoint a new day for the execution.
No. II.
QUESTIONS referred by the Lords to the Judges, in
the Impeachment of Warren Hastings, Esquire, and
the Answers of the Judges. -Extracted from the
Lords' Journals and Minutes.
First.
Question. - Whether, when a witness produced and
examined in a criminal proceeding by a prosecutor
disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX. 141 have been made by such witness before a committee of the House of Commons, or in any other place,
and by.
demanding of him whether the particulars so suggested were not the answer he had so -made? 1788, February 29. - Pa& 418.
Answer. -The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:" That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all
knowledge of any matter so interrogated, it is not
competent for such prosecutor to pursue such examination, by proposing a question containing the. particulars of an answer supposed to have been made by such witness before a committee of the
House of Commons, or in any other place, and by
demanding of him whether the particulars so suggested were not the answer he had so made. "
1788, April 10. - Pa. 592.
Second.
Question. -Whether it be competent for the Managers to produce an examination taken without oath
by the rest of the Council in the absence of Mr.
Hastings, the Governor-General, charging Mr. Hlastings with corruptly receiving 3,54,105 rupees, which
examination came to his knowledge, and was by
him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce
the proof of his demeanor thereupon, --it being alleged by the Managers for the Commons, that he took
? ? ? ? 142 IMPEACHMENT OF WARREN HASTINGS.
no steps to clear himself, in the opinion of the said
Directors, of the guilt thereby imputed, but that he
took active means to prevent the examination by the
said Councillors of his servant Cantoo. Baboo. ?
1789, May 14. - Pa. 677.
Answer. - The Lord Chief-Baron. of the Court of
Exchequer delivered the unanimous opinion! of the
Judges upon the said question, in the. negative, -- and
gave his reasons. . 1789, May 20. -Pa. 718.
Third.
Question. -Whether the instructions from the Court
of Directors of the United Company of Merchants of
England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General' John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (constituted and appointed the GovernorGeneral and Council of the said United Company's Presidency of Fort William in Bengal, by an act of
Parliament passed in the last session, intituled, " An
act for establishing certain regulations for the better
management of the affairs of the East India Company,
as well in India as in Europe,") of the 29th of March,
1774, Par. 31, 32, and 35, the Consultation of the
11th March, 1775, the Consultation of the 13th of
March, 1775, up to the time that Mr. Hastings left
the Council, the Consultation of the 20th of March,
1775, the letter written. byMr. Hastings to the Court
of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or
defend his conduct,) are sufficient to. introduce the
? ? ? ? REPORT ON THE LORDS' JOURNALS. -- APPENDIX. 143 examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council, - such examination
and proceedings charging Mr. Hastings with corruptly receiving 3,54,105 rupees? 1789, May 21. - Pa. 730.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the negative,- and
gave his reasons. 1789, May- 27. - Pa. 771.
Fourth.
Question. - Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the pait of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings, - and it being in proof, that Mr. Hastings, on the 11th of
May, 1778, moved the Board to comply. with the
requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board, -- ought to be read?
1789, June 17. - Pa. 855.
Answer. The Lord Chief-Baron of the Court of Exchequer delivered the unanimous- opinion of the
? ? ? ? 144 IMPEACHMENT OF WARREN HASTINGS.
Judges upon the said question, in the negative, -and
gave his reasons. 1789, June 24. - Pa. 922.
Fiifth.
Question. - Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in
order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of
the Nabob Mobarek ul Dowlah, --and which paper
was the subject of the deliberation of the Council on
the 31st July, 1775, Mr. Hastings being then present,
and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,may be admitted as evidence of the actual state and situation of the Nabob with reference to the English
government? 1789, July 2. - Pa. 1001.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question, in the affirmative,and gave his reasons. 1789, July 7. - Pa. 1030.
Sixth.
Question. -Whether it be or be not competent to
the Managers for the Commons to give evidence upon
the charge in the sixth article, to prove that the rent,
at which the defendant, Warren Hastings, let the
lands mentioned in the said sixth article of charge
to Kelleram, fell into arrear and was deficient, - and
? ? ? ? REPORT ON THE LORDS' JOURNALS. -APPENDIX. 145 whether, if proof were offered that the rent fell in arrear immediately after the letting, the evidence would in that case be competent?
1790, April 22. - Pa. 364.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to give
evidence upon the charge in the sixth article, to prove
that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article
of charge to Kelleram, fell into arrear and was deficient," -and gave his reasons.
1790, April 27. - Pa. 388.
Seventh.
Question. - Whether it be competent for the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz. :
"What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"? 1790, April 27. -Pa. 391.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the sixth
article of charge, viz. : What impression the letting
of the lands to Kelleram and Cullian Sing made on
the: minds of the inhabitants of that country," - and
gave his reasons. 1790, April 29. -Pa. 413.
VOL. XI. 10
? ? ? ? 146 IMPEACHMENT OF WARREN HASTINGS. -Eighth.
Question. - Whether it be competent to the Mana. gers for the Commons to put the following question to the witness, upon the seventh article of charge, viz. : "Whether more oppressions did actually exist under the new institution than under the old"? 1790, April 29. -Pa. 415.
Answer. - The Lord Chief-Baron of the Court of
Exchequer delivered the unanimous opinion of the
Judges upon the said question,-" That it is not
competent to the Managers for the Commons to put
the following question to the witness, upon the
seventh article of charge, viz. : Whether more oppressions did actually exist under the new institution than under the old," - and gave his reasons.
1790, May 4. - Pa. 428.
Ninth
Question. -- Whether the letter of the 13th April, 1781, can be given in evidence by the Managers for the Commons, to prove that the letter of the 5th of May, 1781, already given in evidence, relative to the abolition of the Provincial Council and the subsequent appointment of the Committee of Revenue, was false in any other particular than that which is charged in the seventh article of charge?
1790, May 20. '-Pa. 557.
Answer. - The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,-" That it is not competent for the Managers on the part of the Corm mons to give any evidence on the seventh article of
? ? ? ? REPORT ON THE LORDS' JOURNALS. - APPENDIX, 147 impeachment, to prove that the letter of the 5th of May, 1781, is false in any other particular than that wherein it is expressly charged to be false," -- and gave his reasons. 1790, June 2. -Pa. 634.
Tenth.
Question. -Whether it be competent to the Managers for the Commons to examine the witness to any
account of the debate which was had on the 9th day
of July, 1778, previous to the written minutes that
appear upon the Consdltation of that date?
1794, February 25. - Lords' Minutes.
Answer. -The Lord Chief-Justice of the Court of
Common Pleas delivered the unanimous opinion of
the Judges upon the said question, -" That it is not
competent to the Managers for the Commons to examine the witness, Philip Francis, Esquire, to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date," -- and
gave his reasons.
1794, February 27. - Lords' Minutes.
Eleventh.
Question. - Whether it is competent for the Managers for the Commons, in reply, to ask the witness,
whether, between the time of the original demand
being made upon Cheyt Sing and the period of the
witness's leaving Bengal, it was at any time in his
power to have reversed or put a stop to the demand
upon Cheyt Sing, -the same not being relative to any
matter originally given in evidence by the defendant?
1794, February 27. - Lords' Minutes.
? ? ? ? 148:IMPEACHMENT'OF WARREN HASTINGS.
Answer. - The Lord Chief-Justice of the Court of
Common Pleas delivered the unanimous opinion of
the Judges upon the said question, -" That it is not
competent for the Managers for the Commons to ask
the witness, whether, between the time of the original
demand being made upon Cheyt Sing and the period
of his leaving Bengal, it was at any time in his power
to have reversed or put a stop to the demand upon
Cheyt Sing, --the same not being relative to any
matter originally given in evidence by the defendant," - and gave his reasons.
1794, March 1. - Lords' Minutes.
Twelfth.
Question. - Whether a paper, read in the Court of
Directors on the 4th of November, 1783, and then
referred by them to the consideration of the Committee of the whole Court, and again read in the
Court of Directors on the 19th of November, 1783,
and amended and ordered by them to be published
for the information of the Proprietors, can be received in evidence, in reply, to rebut the evidence,
given by the defendant, of the thanks of the Court
of Directors, signified to him on the 28th of June,
1785? 1794, March 1. - Lords' Minutes.
Answer. - Whereupon the Lord Chief-Justice of
the Court of Common Pleas, having conferred with
the rest of the Judges present, delivered their unanimous opinion upon the said question, in the negative,- and gave his reasons. 1794, March 1. Lords' Minutes.
? ? ? ? REMARKS
IN
VINDICATION OF THE PRECEDING REPORT.
THE preceding Report was ordered to be printed for the
use of the members of the House. of Commons, and was
soon afterwards reprinted and published, in the shape of
a pamphlet, by a London bookseller. In the course of a
debate which took place in. the House of Lords, on Thursday, the 22d of May, 1794, on the Treason and Sedition Bills, Lord Thurlow took occasion to mention "a pamphlet
which his Lordship said was published by one Debrett, of
Piccadilly, and which had that day been put into his hands,
reflecting highly upon the Judges and many members of
that House. This pamphlet was, he said, scandalous and
indecent, and such as he thought ought not to pass unnoticed. He considered the vilifying and misrepresenting the conduct of judges and magistrates, intrusted with the
administration of justice and the laws of the country, to
be a crime of a very heinous nature, and most destructive
in its consequences, because it tended tolower them in the.
opinion of those who ought to feel a proper reverence and
respect for their high and important stations; and that,
when it was stated to the ignorant or the wicked that their
judges and magistrates were ignorant and corrupt, it tended
to lessen their respect for and obedience to the laws themselves, by teaching them to think ill of those who admin
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