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 could 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 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.[77] 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 perjury 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 in 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 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 he 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 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,[78] 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 into 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 in behalf 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 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, [and 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."[79]

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 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 jury 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."[80] 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 them 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 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. A remarkable instance occurred on the trial of Harrison for the murder of Dr. Clenche. The Justices who tried the cause, viz., Lord Chief-Justice Holt, and the Justices Atkins and Nevil, admitted the prosecutor to call new evidence, for no other reason but that a new witness was then come into court, who had not been in court before.[81] These Justices apparently were of the same opinion on this point with the Justices who gave their opinion in the case of Lord Stafford.

Your Committee, on this point, as on the former, cannot discover any authority for the decision of the House of Lords in the Law of Parliament, or in the law practice of any court in this kingdom.

PRACTICE BELOW.

Your Committee, not having learned that the resolutions of the Judges (by which the Lords have been guided) were supported by any authority in law to which they could have access, have heard by rumor that they have been justified upon the practice of the courts in ordinary trials by commission of Oyer and Terminer. To give any legal precision to this term of practice, as thus applied, your Committee apprehends it must mean, that the judge in those criminal trials has so regularly rejected a certain kind of evidence, when offered there, that it is to be regarded in the light of a case frequently determined by legal authority. If such had been discovered, though your Committee never could have allowed these precedents as rules for the guidance of the High Court of Parliament, yet they should not be surprised to see the inferior judges forming their opinions on their own confined practice. Your Committee, in their inquiry, has found comparatively few reports of criminal trials, except the collection under the title of "State Trials," a book compiled from materials of very various authority; and in none of those which we have seen is there, as appears to us, a single example of the rejection of evidence similar to that rejected by the advice of the Judges in the House of Lords. Neither, if such examples did exist, could your Committee allow them to apply directly and necessarily, as a measure of reason, to the proceedings of a court constituted so very differently from those in which the Common Law is administered. In the trials below, the Judges decide on the competency of the evidence before it goes to the jury, and (under the correctives, in the use of their discretion, stated before in this Report) with great propriety and wisdom. Juries are taken promiscuously from the mass of the people. They are composed of men who, in many instances, in most perhaps, never were concerned in any causes, judicially or otherwise, before the time of their service. They have generally no previous preparation, or possible knowledge of the matters to be tried, or what is applicable or inapplicable to them; and they decide in a space of time too short for any nice or critical disquisition. The Judges, therefore, of necessity, must forestall the evidence, where there is a doubt on its competence, and indeed observe much on its credibility, or the most dreadful consequences might follow. The institution of juries, if not thus qualified, could not exist. Lord Mansfield makes the same observation with regard to another corrective of the short mode of trial,—that of a new trial.

This is the law, and this its policy. The jury are not to decide on the competency of witnesses, or of any other kind of evidence, in any way whatsoever. Nothing of that kind can come before them. But the Lords in the High Court of Parliament are not, either actually or virtually, a jury. No legal power is interposed between them and evidence; they are themselves by law fully and exclusively equal to it. They are persons of high rank, generally of the best education, and of sufficient knowledge of the world; and they are a permanent, a settled, a corporate, and not an occasional and transitory judicature. But it is to be feared that the authority of the Judges (in the case of juries legal) may, from that example, weigh with the Lords further than its reason or its applicability to the judicial capacity of the Peers can support. It is to be feared, that if the Lords should think themselves bound implicitly to submit to this authority, that at length they may come to think themselves to be no better than jurors, and may virtually consent to a partition of that judicature which the law has left to them whole, supreme, uncontrolled, and final.

This final and independent judicature, because it is final and independent, ought to be very cautious with regard to the rejection of evidence. If incompetent evidence is received by them, there is nothing to hinder their judging upon it afterwards according to its value: it may have no weight in their judgment. But if, upon advice of others, they previously reject information necessary to their proper judgment, they have no intermediate means of setting themselves right, and they injure the cause of justice without any remedy. Against errors of juries there is remedy by a new trial. Against errors of judges there is remedy, in civil causes, by demurrer and bills of exceptions; against their final mistake there is remedy by writ of error, in courts of Common Law. In Chancery there is a remedy by appeal. If they wilfully err in the rejection of evidence, there was formerly the terror existing of punishment by impeachment of the Commons. But with regard to the Lords, there is no remedy for error, no punishment for a wilful wrong.

Your Committee conceives it not improbable that this apparently total and unreserved submission of the Lords to the dictates of the judges of the inferior courts (no proper judges, in any light or in any degree, of the Law of Parliament) may be owing to the very few causes of original jurisdiction, and the great multitude of those of appellate jurisdiction, which come before them. In cases of appeal, or of error, (which is in the nature of an appeal,) the court of appeal is obliged to judge, not by its own rules, acting in another capacity, or by those which it shall choose pro re nata to make, but by the rules of the inferior court from whence the appeal comes. For the fault or the mistake of the inferior judge is, that he has not proceeded, as he ought to do, according to the law which he was to administer; and the correction, if such shall take place, is to compel the court from whence the appeal comes to act as originally it ought to have acted, according to law, as the law ought to have been understood and practised in that tribunal. The Lords, in such cases of necessity, judge on the grounds of the law and practice of the courts below; and this they can very rarely learn with precision, but from the body of the Judges. Of course much deference is and ought to be had to their opinions. But by this means a confusion may arise (if not well guarded against) between what they do in their appellate jurisdiction, which is frequent, and what they ought to do in their original jurisdiction, which is rare; and by this the whole original jurisdiction of the Peers, and the whole law and usage of Parliament, at least in their virtue and spirit, may be considerably impaired.

* * * * *

After having thus submitted to the House the general tenor of the proceedings in this trial, your Committee will, with all convenient speed, lay before the House the proceedings on each head of evidence separately which has been rejected; and this they hope will put the House more perfectly in possession of the principal causes of the length of this trial, as well as of the injury which Parliamentary justice may, in their opinion, suffer from those proceedings.

FOOTNOTES:

[1] 4 Inst. p. 4.

[2] Rol. Parl. Vol. III. p. 244, Sec. 7.

[3] 4 Inst. p. 15.

[4] 16 Ch. I. 1640.

[5] Lords' Journals, Vol. IV. p. 133.

[6] Id. Vol. XIX. p. 98.

[7] Lords' Journals, Vol. XIX. p. 116.

[8] Lords' Journals, Vol. XIX. p. 121.

[9] Lords' Journals, Vol. XIX. p. 108.

[10] State Trials, Vol. V.

[11] Statutes at Large, from 12 Ed. I. to 16 and 17 Ch. II.

[12] 7 W. III. ch. 3, sect. 12.

[13] State Trials, Vol. VI. p. 17.

[14] Lords' Journals, Vol. XX. p. 316.

[15] Discourse IV. p. 389.

[16] Parl. Rolls, Vol. II. p. 57. 4 Ed. III. A.D. 1330.

[17] Coke, 4 Inst. p. 3.

[18] State Trials, Vol. II. p. 725. A.D. 1678.

[19] State Trials, Vol. III. p. 212.

[20] State Trials, Vol. V. p. 169.

[21] State Trials, Vol. IV. from p. 538 to 552.

[22] State Trials, Vol. IX. p. 606*. Die Lunae, 28 Julii 1746

[23] Id., Vol. XI. p. 262.

[24] Kelyng's Reports, p. 54.

[25] Rushworth, Vol. II. pp. 93, 94, 95, 100.

[26] Foster's Crown Law, p. 145.

[27] See the Appendix, No. 1.

[28] Rushworth, Vol. II. p. 475, et passim.

[29] Coke, 4 Inst. p. 5.

[30] This is confined to the judicial opinions in Hampden's case. It does not take in all the extra-judicial opinions.

[31] "Dissentient.

"1st. Because, by consulting the Judges out of court, in the absence of the parties, and with shut doors, we have deviated from the most approved and almost uninterrupted practice of above a century and a half, and established a precedent not only destructive of the justice due to the parties at our bar, but materially injurious to the rights of the community at large, who in cases of impeachments are more peculiarly interested that all proceedings of this High Court of Parliament should be open and exposed, like all other courts of justice, to public observation and comment, in order that no covert and private practices should defeat the great ends of public justice.

"2dly. Because, from private opinions of the Judges, upon private statements, which the parties have neither heard nor seen, grounds of a decision will be obtained which must inevitably affect the cause at issue at our bar; this mode of proceeding seems to be a violation of the first principle of justice, inasmuch as we thereby force and confine the opinions of the Judges to our private statement; and through the medium of our subsequent decision we transfer the effect of those opinions to the parties, who have been deprived of the right and advantage of being heard by such, private, though unintended, transmutation of the point at issue.

"3dly. Because the prisoners who may hereafter have the misfortune to stand at our bar will be deprived of that consolation which the Lord High Steward Nottingham conveyed to the prisoner, Lord Cornwallis, viz., 'That the Lords have that tender regard of a prisoner at the bar, that they will not suffer a case to be put in his absence, lest it should prejudice him by being wrong stated.'

"4thly. Because unusual mystery and secrecy in our judicial proceedings must tend either to discredit the acquittal of the prisoner, or render the justice of his condemnation doubtful.

"PORCHESTER. SUFFOLK AND BERKSHIRE. LOUGHBOROUGH."



[32] See the Lord High Steward's speech on that head, 1st James II.

[33] All the resolutions of the Judges, to the time of the reference to the Committee, are in the Appendix, No. 2.

[34] Atkyns, Vol. I. p. 445.

[35] Blackstone's Commentaries, Book IV. p. 258.

[36] Lords' Journals, Vol. IV. p. 204. An. 1641. Rush. Trial of Lord Strafford, p. 430.

[37] Lords' Journals, Vol. IV. p. 210.

[38] Id. Vol. XXII. p. 536 to 546. An. 1725.

[39] Lords' Journals, Vol. XXII. p. 541.

[40] Id. Vol. XXVII. p. 63, 65. An. 1746

[41] Gilbert's Law of Evidence, p. 23.

[42] Gravina, 84, 85.

[43] Id. 90 usque ad 100.

[44] Atkyns, Rep. Vol. I p. 37, Omichund versus Barker.

[45] Digest. Lib. XXII. Tit. 5.

[46] Calvinus, voce Praesumptio.

[47] Bartolus

[48] Lib. II. Obs. 149, Sec. 9.

[49] Lib. I. Obs. 91, Sec. 7.

[50] Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis, non tam in aequitate quam in verborum superstitione fundata, eaque Ciceronis aetatem fere attigit, mansitque annos circiter CCCL. Quae hanc excepit, viguitque annos fere septuaginta novem, superiori longe humanior; quippe quae magis utilitate communi, quam potestate verborum, negotia moderaretur.—Gravina, p. 86.

[51] Omichund v. Barker, Atk. I.

[52] Gaill, Lib. II. Obs. 20, Sec. 5.

[53] N.B.—In some criminal cases also, though not of treason, husband is admitted to prove an assault upon his wife, for the King, ruled by Raymond, Chief-Justice, Trin. 11th Geo., King v. Azire. And for various other exceptions see Buller's Nisi Prius, 286, 287.

[54] Cro. Charl. 365.

[55] Omichund v. Barker, 1st Atkyns, ut supra.

[56] Rex v. Philips, Burrow, Vol. I. p. 301, 302, 304.

[57] Mayor of Hull v. Horner, Cowper's Reports, 109.

[58] Abrahams v. Bunn, Burrow, Vol. IV. p. 2254. The whole case well worth reading.

[59] Wyndham v. Chetwynd, Burrow, Vol. I. p. 421.

[60] King v. Bray.

[61] Wyndham v. Chetwynd.

[62] Lowe v. Joliffe, 1 Black. J. p. 366.

[63] Burrow, 1147. Zouch, ex dimiss. Woolston, v. Woolston.

[64] In this single point Holt did not concur with the rest of the judges.

[65] 1st Siderfin, p. 431.

[66] Interest reipublicae ut maleficia ne remaneant impunita.

[67] Love's Trial, State Trials, Vol. II. p. 144, 171 to 173, and 177; and Foster's Crown Law, p. 235.

[68] Coppendale v. Bridgen, 2 Burrow, 814.

[69] Vide supra.

[70] 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.

[71] Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228. 1 Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit. Evidence (P. a.).

[72] Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.

[73] Ibid. Quest. CVI. No. 89.

[74] 22 Jac. I. 1624.

[75] 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.

[76] Chesterfield v. Janssen, Atkyns's Reports, Vol. II.

[77] State Trials, Vol. III. p. 170.

[78] Bis in originali.

[79] Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10 die Aprilis.

[80] Dal. 80. Pl. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.

[81] State Trials, Vol. IV. p. 501.



APPENDIX.

No. 1.

IN THE CASE OF EARL FERRERS.

APRIL 17, 1760.

[Foster's Crown Law, p. 188, fol. edit.]

The House of Peers unanimously found Earl Ferrers guilty of the felony and murder whereof he stood indicted, and the Earl being brought to the bar, the High Steward acquainted him therewith; and the House immediately adjourned to the Chamber of Parliament, and, having put the following question to the Judges, adjourned to the next day.

"Supposing a peer, so indicted and convicted, ought by law to receive such judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may be appointed for the execution, and by whom?"

On the 18th, the House then sitting in the Chamber of Parliament, the Lord Chief Baron, in the absence of the Chief-Justice of the Common Pleas, delivered in writing the opinion of the Judges, which they had agreed on and reduced into form that morning. His Lordship added many weighty reasons in support of the opinion, which he urged with great strength and propriety, and delivered with a becoming dignity.

To the Second Question.

"Supposing the day appointed by the judgment for execution should lapse before such execution done, (which, however, the law will not presume,) we are all of opinion that a new time may be appointed for the execution, either by the High Court of Parliament, before which such peer shall have been attainted, or by the Court of King's Bench, the Parliament not then sitting: the record of the attainder being properly removed into that court."

The reasons upon which the Judges founded their answer to the question relating to the further proceedings of the House after the High Steward's commission dissolved, which is usually done upon pronouncing judgment, may possibly require some further discussion. I will, therefore, before I conclude, mention those which weighed with me, and, I believe, with many others of the Judges.

Reasons, &c.

Every proceeding in the House of Peers, acting in its judicial capacity, whether upon writ of error, impeachment, or indictment, removed thither by Certiorari, is in judgment of law a proceeding before the King in Parliament; and therefore the House, in all those cases, may not improperly be styled the Court of our Lord the King in Parliament. This court is founded upon immemorial usage, upon the law and custom of Parliament, and is part of the original system of our Constitution. It is open for all the purposes of judicature, during the continuance of the Parliament: it openeth at the beginning and shutteth at the end of every session: just as the Court of King's Bench, which, is likewise in judgment of law held before the King himself, openeth and shutteth with the term. The authority of this court, or, if I may use the expression, its constant activity for the ends of public justice, independent of any special powers derived from the Crown, is not doubted in the case of writs of error from those courts of law whence error lieth in Parliament, and of impeachments for misdemeanors.

It was formerly doubted, whether, in the case of an impeachment for treason, and in the case of an indictment against a peer for any capital crime, removed into Parliament by Certiorari, whether in these cases the court can proceed to trial and judgment without an High Steward appointed by special commission from the Crown. This doubt seemeth to have arisen from the not distinguishing between a proceeding in the Court of the High Steward and that before the King in Parliament. The name, style, and title of office is the same in both cases: but the office, the powers and preeminences annexed to it, differ very widely; and so doth the constitution of the courts where the offices are executed. The identity of the name may have confounded our ideas, as equivocal words often do, if the nature of things is not attended to; but the nature of the offices, properly stated, will, I hope, remove every doubt on these points.

In the Court of the High Steward, he alone is judge in all points of law and practice; the peers triers are merely judges of fact, and are summoned by virtue of a precept from the High Steward to appear before him on the day appointed by him for the trial, ut rei veritas melius sciri poterit. The High Steward's commission, after reciting that an indictment hath been found against the peer by the grand jury of the proper county, impowereth him to send for the indictment, to convene the prisoner before him at such day and place as he shall appoint, then and there to hear and determine the matter of such indictment; to cause the peers triers, tot et tales, per quos rei veritas melius sciri poterit, at the same day and place to appear before him; veritateque inde comperta, to proceed to judgment according to the law and custom of England, and thereupon to award execution.[82] By this it is plain that the sole right of judicature is in cases of this kind vested in the High Steward; that it resideth solely in his person; and consequently, without this commission, which is but in nature of a commission of Oyer and Terminer, no one step can be taken in order to a trial; and that when his commission is dissolved, which he declareth by breaking his staff, the court no longer existeth.

But in a trial of a peer in full Parliament, or, to speak with legal precision, before the King in Parliament, for a capital offence, whether upon impeachment or indictment, the case is quite otherwise. Every peer present at the trial (and every temporal peer hath a right to be present in every part of the proceeding) voteth upon every question of law and fact, and the question is carried by the major vote: the High Steward himself voting merely as a peer and member of that court, in common with the rest of the peers, and in no other right.

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;[83] 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 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,[84] 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 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, that, 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,[85] 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:[86] that this seemed to be a satisfaction to the Commons, provided it was entered in the Lords' Journals, which are records." 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."[87] 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 Angliae, (cujus praesentia in hac parte requiritur,) ut accepimus, jam vacat, may be inserted, Ac pro eo quod proceres et magnates in Parliamento nostro assemblati nobis humiliter supplicaverunt ut Seneschallum Angliae pro hac vice constituere dignaremur: to which the House agreed.[88]

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 was 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.[89] And I cannot help remarking, that in the case of Lord Lovat, when neither the heat 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."[90]

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 pro 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 premises 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 officium Seneschalli Angliae, (cujus praesentia 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 Kilmarnock, &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.

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 properly 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 indictments 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 Lords' committees, that they had been attended by the two Chief-Justices and Chief-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," the House, upon reading the report, came to several resolutions, founded for the most part on the construction of that 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 upon 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 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 praesenti Parliamento, had been impeached by the Commons for high treason, and had, coram nobis in praesenti 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 praefertur impetit', accusat', et convict' existunt coram nobis in praesenti Parliamento, secundum legem et consuetudinem hujus regni nostri Magnae Britanniae, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hac 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.

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.[91] It will not be material to inquire whether the House did right in discharging the Earl without giving the Commons an 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 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[92] 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 attainted 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 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,[93] 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.[94]

I observe that the Lord Chancellor did not ask these lords 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 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 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. Hastings 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 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 Governor-General 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 by Mr. 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 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 part 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 Judges upon the said question, in the negative,—and gave his reasons.

1789, June 24.—Pa. 922.

Fifth.

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 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.

Eighth.

Question.—Whether it be 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"?

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 Commons to give any evidence on the seventh article of 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 Consultation 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.

* * * * *

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.

FOOTNOTES:

[82] See Lord Clarendon's commission as High Steward, and the writs and precepts preparatory to the trial, in Lord Morley's case. VII. St. Tr.

[83] See the orders previous to the trial, in the cases of the Lords Kilmarnock, &c., and Lord Lovat, and many other modern cases.

[84] Lords' Journals.

[85] Afterwards Earl of Nottingham.

[86] 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."

[87] 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.

[88] 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.

[89] 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.

[90] See the proceedings printed by order of the House of Lords, 4th February, 1746.

[91] See the Journals of the Lords.

[92] 3 Geo. I. c. 19.

[93] See sect. 45 of the 3d Geo. I

[94] Lords' Journals.



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 to lower 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 administered them." On the next day Mr. Burke called the attention of the House of Commons to this matter, in a speech to the following effect.

Mr. Speaker,—The license of the present times makes it very difficult for us to talk upon certain subjects in which Parliamentary order is involved. It is difficult to speak of them with regularity, or to be silent with dignity and wisdom. All our proceedings have been constantly published, according to the discretion and ability of individuals out of doors, with impunity, almost ever since I came into Parliament. By usage, the people have obtained something like a prescriptive right to this abuse. I do not justify it; but the abuse is now grown so inveterate that to punish it without previous notice would have an appearance of hardship, if not injustice. The publications I allude to are frequently erroneous as well as irregular, but they are not always so; what they give as the reports and resolutions of this House have sometimes been given correctly. And it has not been uncommon to attack the proceedings of the House itself under color of attacking these irregular publications. Notwithstanding, however, this colorable plea, this House has in some instances proceeded to punish the persons who have thus insulted it. You will here, too, remark, Sir, that, when a complaint is made of a piratical edition of a work, the authenticity of the original work is admitted, and whoever attacks the matter of the work itself in these unauthorized publications does not attack it less than if he had attacked it in an edition authorized by the writer.

I understand, Sir, that in a place which I greatly respect, and by a person for whom I have likewise a great veneration, a pamphlet published by a Mr. Debrett has been very heavily censured. That pamphlet, I hear, (for I have not read it,) purports to be a Report made by one of your Committees to this House. It has been censured, as I am told, by the person and in the place I have mentioned, in very harsh and very unqualified terms. It has been there said, (and so far very truly,) that at all times, and particularly at this time, it is necessary, for the preservation of order and the execution of the law, that the characters and reputation of the Judges of the Courts in Westminster Hall should be kept in the highest degree of respect and reverence; and that in this pamphlet, described by the name of a libel, the characters and conduct of those Judges upon a late occasion have been aspersed, as arising from ignorance or corruption.

Sir, combining all the circumstances, I think it impossible not to suppose that this speech does reflect upon a Report which, by an order of the Committee on which I served, I had the honor of presenting to this House. For anything improper in that Report I am responsible, as well as the members of the Committee, to this House, and to this House only. The matters contained in it, and the observations upon them, are submitted to the wisdom of the House, that you may act upon both in the time and manner that to your judgment may seem most expedient,—or that you may not act upon them at all, if you should think that most expedient for the public good. Your Committee has obeyed your orders; it has done its duty in making that Report.

I am of opinion, with the eminent person by whom that Report is censured, that it is necessary at this time very particularly that the authority of Judges should be preserved and supported. This, however, does not depend so much upon us as upon themselves. It is necessary to preserve the dignity and respect of all the constitutional authorities. This, too, depends in part upon ourselves. It is necessary to preserve the respect due to the House of Lords: it is full as necessary to preserve the respect due to the House of Commons, upon which (whatever may be thought of us by some persons) the weight and force of all other authorities within this kingdom essentially depend. If the power of the House of Commons be degraded or enervated, no other can stand. We must be true to ourselves. We ought to animadvert upon any of our members who abuse the trust we place in them; we must support those who, without regard to consequences, perform their duty.

With regard to the matter which I am now submitting to your consideration, I must say for your Committee of Managers and for myself, that the Report was deliberately made, and does not, as I conceive, contain any very material error, nor any undue or indecent reflection upon any person or persons whatever. It does not accuse the Judges of ignorance or corruption. Whatever it says it does not say calumniously. That kind of language belongs to persons whose eloquence entitles them to a free use of epithets. The Report states that the Judges had given their opinions secretly, contrary to the almost uninterrupted tenor of Parliamentary usage on such occasions. It states that the mode of giving the opinions was unprecedented, and contrary to the privileges of the House of Commons. It states that the Committee did not know upon what rules and principles the Judges had decided upon those cases, as they neither heard their opinions delivered, nor have found them entered upon the Journals of the House of Lords. It is very true that we were and are extremely dissatisfied with those opinions, and the consequent determinations of the Lords; and we do not think such a mode of proceeding at all justified by the most numerous and the best precedents. None of these sentiments is the Committee, as I conceive, (and I feel as little as any of them,) disposed to retract, or to soften in the smallest degree.

The Report speaks for itself. Whenever an occasion shall be regularly given to maintain everything of substance in that paper, I shall be ready to meet the proudest name for ability, learning, or rank that this kingdom contains, upon that subject. Do I say this from any confidence in myself? Far from it. It is from my confidence in our cause, and in the ability, the learning, and the constitutional principles which this House contains within itself, and which I hope it will ever contain,—and in the assistance which it will not fail to afford to those who with good intention do their best to maintain the essential privileges of the House, the ancient law of Parliament, and the public justice of this kingdom.

* * * * *

No reply or observation was made on the subject by any other member, nor was any farther notice taken of it in the House of Lords.



SPEECHES

IN

THE IMPEACHMENT

OF

WARREN HASTINGS, ESQUIRE,

LATE GOVERNOR-GENERAL OF BENGAL.



SPEECH IN GENERAL REPLY.

MAY AND JUNE, 1794.



SPEECH

IN

GENERAL REPLY.

FIRST DAY: WEDNESDAY, MAY 28, 1794

My Lords,—This business, which has so long employed the public councils of this kingdom, so long employed the greatest and most august of its tribunals, now approaches to a close. The wreck and fragments of our cause (which has been dashed to pieces upon rules by which your Lordships have thought fit to regulate its progress) await your final determination. Enough, however, of the matter is left to call for the most exemplary punishment that any tribunal ever inflicted upon any criminal. And yet, my Lords, the prisoner, by the plan of his defence, demands not only an escape, but a triumph. It is not enough for him to be acquitted: the Commons of Great Britain must be condemned; and your Lordships must be the instruments of his glory and of our disgrace. This is the issue upon which he has put this cause, and the issue upon which we are obliged to take it now, and to provide for it hereafter.

My Lords, I confess that at this critical moment I feel myself oppressed with an anxiety that no words can adequately express. The effect of all our labors, the result of all our inquiries, is now to be ascertained. You, my Lords, are now to determine, not only whether all these labors have been vain and fruitless, but whether we have abused so long the public patience of our country, and so long oppressed merit, instead of avenging crime. I confess I tremble, when I consider that your judgment is now going to be passed, not on the culprit at your bar, but upon the House of Commons itself, and upon the public justice of this kingdom, as represented in this great tribunal. It is not that culprit who is upon trial; it is the House of Commons that is upon its trial, it is the House of Lords that is upon its trial, it is the British nation that is upon its trial before all other nations, before the present generation, and before a long, long posterity.

My Lords, I should be ashamed, if at this moment I attempted to use any sort of rhetorical blandishments whatever. Such artifices would neither be suitable to the body that I represent, to the cause which I sustain, or to my own individual disposition, upon such an occasion. My Lords, we know very well what these fallacious blandishments too frequently are. We know that they are used to captivate the benevolence of the court, and to conciliate the affections of the tribunal rather to the person than to the cause. We know that they are used to stifle the remonstrances of conscience in the judge, and to reconcile it to the violation of his duty. We likewise know that they are too often used in great and important causes (and more particularly in causes like this) to reconcile the prosecutor to the powerful factions of a protected criminal, and to the injury of those who have suffered by his crimes,—thus inducing all parties to separate in a kind of good humor, as if they had nothing more than a verbal dispute to settle, or a slight quarrel over a table to compromise. All this may now be done at the expense of the persons whose cause we pretend to espouse. We may all part, my Lords, with the most perfect complacency and entire good humor towards one another, while nations, whole suffering nations, are left to beat the empty air with cries of misery and anguish, and to cast forth to an offended heaven the imprecations of disappointment and despair.

One of the counsel for the prisoner (I think it was one who has comported himself in this cause with decency) has told your Lordships that we have come here on account of some doubts entertained in the House of Commons concerning the conduct of the prisoner at your bar,—that we shall be extremely delighted, when his defence and your Lordships' judgment shall have set him free, and shall have discovered to us our error,—that we shall then mutually congratulate one another,—and that the Commons, and the Managers who represent them here, will be the first to rejoice in so happy an event and so fortunate a discovery.

Far, far from the Commons of Great Britain be all manner of real vice; but ten thousand times further from them, as far as from pole to pole, be the whole tribe of false, spurious, affected, counterfeit, hypocritical virtues! These are the things which are ten times more at war with real virtue, these are the things which are ten times more at war with real duty, than any vice known by its name and distinguished by its proper character. My Lords, far from us, I will add, be that false and affected candor that is eternally in treaty with crime,—that half virtue, which, like the ambiguous animal that flies about in the twilight of a compromise between day and night, is to a just man's eye an odious and disgusting thing! There is no middle point in which the Commons of Great Britain can meet tyranny and oppression. No, we never shall (nor can we conceive that we ever should) pass from this bar, without indignation, without rage and despair, if the House of Commons should, upon such a defence as has here been made against such a charge as they have produced, be foiled, baffled, and defeated. No, my Lords, we never could forget it; a long, lasting, deep, bitter memory of it would sink into our minds.

My Lords, the Commons of Great Britain have no doubt upon this subject. We came hither to call for justice, not to solve a problem; and if justice be denied us, the accused is not acquitted, but the tribunal is condemned. We know that this man is guilty of all the crimes which he stands accused of by us. We have not come here to you, in the rash heat of a day, with that fervor which sometimes prevails in popular assemblies, and frequently misleads them. No: if we have been guilty of error in this cause, it is a deliberate error, the fruit of long, laborious inquiry,—an error founded on a procedure in Parliament before we came here, the most minute, the most circumstantial, and the most cautious that ever was instituted. Instead of coming, as we did in Lord Strafford's case, and in some others, voting the impeachment and bringing it up on the same day, this impeachment was voted from a general sense prevailing in the House of Mr. Hastings's criminality after an investigation begun in the year 1780, and which produced in 1782 a body of resolutions condemnatory of almost the whole of his conduct. Those resolutions were formed by the Lord Advocate of Scotland, and carried in our House by the unanimous consent of all parties: I mean the then Lord Advocate of Scotland,—now one of his Majesty's principal Secretaries of State, and at the head of this very Indian department. Afterwards, when this defendant came home, in the year 1785, we reinstituted our inquiry. We instituted it, as your Lordships and the world know, at his own request, made to us by his agent, then a member of our House. We entered into it at large; we deliberately moved for every paper which promised information on the subject. These papers were not only produced on the part of the prosecution, as is the case before grand juries, but the friends of the prisoner produced every document which they could produce for his justification. We called all the witnesses which could enlighten us in the cause, and the friends of the prisoner likewise called every witness that could possibly throw any light in his favor. After all these long deliberations, we referred the whole to a committee. When it had gone through that committee, and we thought it in a fit state to be digested into these charges, we referred the matter to another committee; and the result of that long examination and the labor of these committees is the impeachment now at your bar.

If, therefore, we are defeated here, we cannot plead for ourselves that we have done this from a sudden gust of passion, which sometimes agitates and sometimes misleads the most grave popular assemblies. No: it is either the fair result of twenty-two years' deliberation that we bring before you, or what the prisoner says is just and true,—that nothing but malice in the Commons of Great Britain could possibly produce such an accusation as the fruit of such an inquiry. My Lords, we admit this statement, we are at issue upon this point; and we are now before your Lordships, who are to determine whether this man has abused his power in India for fourteen years, or whether the Commons has abused their power of inquiry, made a mock of their inquisitorial authority, and turned it to purposes of private malice and revenge. We are not come here to compromise matters; we do not admit [do admit?] that our fame, our honors, nay, the very inquisitorial power of the House of Commons is gone, if this man be not guilty.

My Lords, great and powerful as the House of Commons is, (and great and powerful I hope it always will remain,) yet we cannot be insensible to the effects produced by the introduction of forty millions of money into this country from India. We know that the private fortunes which have been made there pervade this kingdom so universally that there is not a single parish in it unoccupied by the partisans of the defendant. We should fear that the faction which he has thus formed by the oppression of the people of India would be too strong for the House of Commons itself, with all its power and reputation, did we not know that we have brought before you a cause which nothing can resist.

* * * * *

I shall now, my Lords, proceed to state what has been already done in this cause, and in what condition it now stands for your judgment.

An immense mass of criminality was digested by a committee of the House of Commons; but although this mass had been taken from another mass still greater, the House found it expedient to select twenty specific charges, which they afterwards directed us, their Managers, to bring to your Lordships' bar. Whether that which has been brought forward on these occasions or that which was left behind be more highly criminal, I for one, as a person most concerned in this inquiry, do assure, your Lordships that it is impossible for me to determine.

After we had brought forward this cause, (the greatest in extent that ever was tried before any human tribunal, to say nothing of the magnitude of its consequences,) we soon found, whatever the reasons might be, without at present blaming the prisoner, without blaming your Lordships, and far are we from imputing blame to ourselves, we soon found that this trial was likely to be protracted to an unusual length. The Managers of the Commons, feeling this, went up to their constituents to procure from them the means of reducing it within a compass fitter for their management and for your Lordships' judgment. Being furnished with this power, a second selection was made upon the principles of the first: not upon the idea that what we left could be less clearly sustained, but because we thought a selection should be made upon some juridical principle. With this impression on our minds, we reduced the whole cause to four great heads of guilt and criminality. Two of them, namely, Benares and the Begums, show the effects of his open violence and injustice; the other two expose the principles of pecuniary corruption upon which the prisoner proceeded: one of these displays his passive corruption in receiving bribes, and the other his active corruption, in which he has endeavored to defend his passive corruption by forming a most formidable faction both abroad and at home. There is hardly any one act of the prisoner's corruption in which there is not presumptive violence, nor any acts of his violence in which there are not presumptive proofs of corruption. These practices are so intimately blended with each other, that we thought the distribution which we have adopted would best bring before you the spirit and genius of his government; and we were convinced, that, if upon these four great heads of charge your Lordships should not find him guilty, nothing could be added to them which would persuade you so to do.

In this way and in this state the matter now comes before your Lordships. I need not tread over the ground which has been trod with such extraordinary abilities by my brother Managers, of whom I shall say nothing more than that the cause has been supported by abilities equal to it; and, my Lords, no abilities are beyond it. As to the part which I have sustained in this procedure, a sense of my own abilities, weighed with the importance of the cause, would have made me desirous of being left out of it; but I had a duty to perform which superseded every personal consideration, and that duty was obedience to the House of which I have the honor of being a member. This is all the apology I shall make. We are the Commons of Great Britain, and therefore cannot make apologies. I can make none for my obedience; they want none for their commands. They gave me this office, not from any confidence in my ability, but from a confidence in the abilities of those who were to assist me, and from a confidence in my zeal,—a quality, my Lords, which oftentimes supplies the want of great abilities.

In considering what relates to the prisoner and to his defence, I find the whole resolves itself into four heads: first, his demeanor, and his defence in general; secondly, the principles of his defence; thirdly, the means of that defence; and, fourthly, the testimonies which he brings forward to fortify those means, to support those principles, and to justify that demeanor.

As to his demeanor, my Lords, I will venture to say, that, if we fully examine the conduct of all prisoners brought before this high tribunal, from the time that the Duke of Suffolk appeared before it down to the time of the appearance of my Lord Macclesfield, if we fully examine the conduct of prisoners in every station of life, from my Lord Bacon, down to the smugglers who were impeached in the reign of King William, I say, my Lords, that we shall not, in the whole history of Parliamentary trials, find anything similar to the demeanor of the prisoner at your bar. What could have encouraged that demeanor your Lordships will, when you reflect seriously upon this matter, consider. God forbid that the authority either of the prosecutor or of the judge should dishearten the prisoner so as to circumscribe the means or enervate the vigor of his defence! God forbid that such a thing should even appear to be desired by anybody in any British tribunal! But, my Lords, there is a behavior which broadly displays a want of sense, a want of feeling, a want of decorum,—a behavior which indicates an habitual depravity of mind, that has no sentiments of propriety, no feeling for the relations of life, no conformity to the circumstances of human affairs. This behavior does not indicate the spirit of injured innocence, but the audacity of hardened, habitual, shameless guilt,—affording legitimate grounds for inferring a very defective education, very evil society, or very vicious habits of life. There is, my Lords, a nobleness in modesty, while insolence is always base and servile. A man who is under the accusation of his country is under a very great misfortune. His innocence, indeed, may at length shine out like the sun, yet for a moment it is under a cloud; his honor is in abeyance, his estimation is suspended, and he stands, as it were, a doubtful person in the eyes of all human society. In that situation, not a timid, not an abject, but undoubtedly a modest behavior, would become a person even of the most exalted dignity and of the firmest fortitude.

The Romans (who were a people that understood the decorum of life as well as we do) considered a person accused to stand in such a doubtful situation that from the moment of accusation he assumed either a mourning or some squalid garb, although, by the nature of their constitution, accusations were brought forward by one of their lowest magistrates. The spirit of that decent usage has continued from the time of the Romans till this very day. No man was ever brought before your Lordships that did not carry the outward as well as inward demeanor of modesty, of fear, of apprehension, of a sense of his situation, of a sense of our accusation, and a sense of your Lordships' dignity.

These, however, are but outward things; they are, as Hamlet says, "things which a man may play." But, my Lords, this prisoner has gone a great deal further than being merely deficient in decent humility. Instead of defending himself, he has, with a degree of insolence unparalleled in the history of pride and guilt, cast out a recriminatory accusation upon the House of Commons. Instead of considering himself as a person already under the condemnation of his country, and uncertain whether or not that condemnation shall receive the sanction of your verdict, he ranks himself with the suffering heroes of antiquity. Joining with them, he accuses us, the representatives of his country, of the blackest ingratitude, of the basest motives, of the most abominable oppression, not only of an innocent, but of a most meritorious individual, who, in your and in our service, has sacrificed his health, his fortune, and even suffered his fame and character to be called in question from one end of the world to the other. This, I say, he charges upon the Commons of Great Britain; and he charges it before the Court of Peers of the same kingdom. Had I not heard this language from the prisoner, and afterwards from his counsel, I must confess I could hardly have believed that any man could so comport himself at your Lordships' bar.

After stating in his defence the wonderful things he did for us, he says,—"I maintained the wars which were of your formation, or that of others, not of mine. I won one member of the great Indian confederacy from it by an act of seasonable restitution; with another I maintained a secret intercourse, and converted him into a friend; a third I drew off by diversion and negotiation, and employed him as the instrument of peace. When you cried out for peace, and your cries were heard by those who were the objects of it, I resisted this and every other species of counteraction by rising in my demands, and accomplished a peace, and I hope an everlasting one, with one great state; and I at least afforded the efficient means by which a peace, if not so durable, more seasonable at least, was accomplished with another. I gave you all; and you have rewarded me with confiscation, disgrace, and a life of impeachment."

Comparing our conduct with that of the people of India, he says,—"They manifested a generosity of which we have no example in the European world. Their conduct was the effect of their sense of gratitude for the benefits they had received from my administration. I wish I could say as much of my own countrymen."

My Lords, here, then, we have the prisoner at your bar in his demeanor not defending himself, but recriminating upon his country, charging it with perfidy, ingratitude, and oppression, and making a comparison of it with the banians of India, whom he prefers to the Commons of Great Britain.