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+The Project Gutenberg EBook of The Works of the Right Honourable Edmund
+Burke, Vol. XI. (of 12), by Edmund Burke
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: The Works of the Right Honourable Edmund Burke, Vol. XI. (of 12)
+
+Author: Edmund Burke
+
+Release Date: April 20, 2006 [EBook #18218]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK THE WORKS OF THE RIGHT ***
+
+
+
+
+Produced by Paul Murray, Susan Skinner and the Online
+Distributed Proofreading Team at http://www.pgdp.net (This
+file was produced from images generously made available
+by the Bibliotheque nationale de France (BnF/Gallica) at
+http://gallica.bnf.fr)
+
+
+
+
+
+
+
+
+
+
+THE WORKS
+
+OF
+
+THE RIGHT HONOURABLE
+
+EDMUND BURKE
+
+
+IN TWELVE VOLUMES
+
+VOLUME THE ELEVENTH
+
+
+[Illustration: Burke Coat of Arms.]
+
+
+LONDON
+JOHN C. NIMMO
+14, KING WILLIAM STREET, STRAND, W.C.
+MDCCCLXXXVII
+
+
+
+
+CONTENTS OF VOL. XI.
+
+                                                                    PAGE
+REPORT FROM THE COMMITTEE OF THE HOUSE OF COMMONS, APPOINTED TO
+  INSPECT THE LORDS' JOURNALS IN RELATION TO THEIR PROCEEDINGS ON
+  THE TRIAL OF WARREN HASTINGS, ESQUIRE. WITH AN APPENDIX. ALSO,
+  REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF
+  LORD THURLOW. 1794.                                                  1
+
+SPEECHES IN THE IMPEACHMENT OF WARREN HASTINGS, ESQUIRE,
+  LATE GOVERNOR-GENERAL OF BENGAL. (CONTINUED.)
+
+    SPEECH IN GENERAL REPLY.
+      FIRST DAY: WEDNESDAY, MAY 28, 1794                             157
+      SECOND DAY: FRIDAY, MAY 30                                     227
+      THIRD DAY: TUESDAY, JUNE 3                                     300
+      FOURTH DAY: THURSDAY, JUNE 5                                   372
+
+
+
+
+REPORT
+
+FROM THE
+
+COMMITTEE OF THE HOUSE OF COMMONS,
+
+APPOINTED
+
+TO INSPECT THE LORDS' JOURNALS
+
+IN RELATION TO THEIR PROCEEDINGS
+
+ON THE TRIAL OF
+
+WARREN HASTINGS, ESQUIRE.
+
+WITH AN APPENDIX.
+
+ALSO,
+
+REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD
+THURLOW.
+
+1794.
+
+
+
+
+NOTE.
+
+
+    In the sixth article Mr. Burke was supported, on the 16th of
+    February, 1790, by Mr. Anstruther, who opened the remaining part of
+    this article and part of the seventh article, and the evidence was
+    summed up and enforced by him. The rest of the evidence upon the
+    sixth, and on part of the seventh, eighth, and fourteenth articles,
+    were respectively opened and enforced by Mr. Fox and other of the
+    Managers, on the 7th and 9th of June, in the same session. On the
+    23d May, 1791, Mr. St. John opened the fourth article of charge; and
+    evidence was heard in support of the same. In the following sessions
+    of 1792, Mr. Hastings's counsel were heard in his defence, which was
+    continued through the whole of the sessions of 1793.
+
+    On the 5th of March, 1794, a select committee was appointed by the
+    House of Commons to inspect the Lords' Journals, in relation to
+    their proceeding on the trial of Warren Hastings, Esquire, and to
+    report what they found therein to the House, (which committee were
+    the managers appointed to make good the articles of impeachment
+    against the said Warren Hastings, Esquire,) and who were afterwards
+    instructed to report the several matters which had occurred since
+    the commencement of the prosecution, and which had, in their
+    opinion, contributed to the duration thereof to that time, with
+    their observations thereupon. On the 30th of April, the following
+    Report, written by Mr. Burke, and adopted by the Committee, was
+    presented to the House of Commons, and ordered by the House to be
+    printed.
+
+
+
+
+REPORT
+
+     Made on the 30th April, 1794, from the Committee of the House of
+     Commons, appointed to inspect the Lords' Journals, in relation to
+     their proceeding on the trial of Warren Hastings, Esquire, and to
+     report what they find therein to the House (which committee were
+     the managers appointed to make good the articles of impeachment
+     against the said Warren Hastings, Esquire); and who were afterwards
+     instructed to report the several matters which have occurred since
+     the commencement of the said prosecution, and which have, in their
+     opinion, contributed to the duration thereof to the present time,
+     with their observations thereupon.
+
+
+Your Committee has received two powers from the House:--The first, on
+the 5th of March, 1794, to inspect the Lords' Journals, in relation to
+their proceedings on the trial of Warren Hastings, Esquire, and to
+report what they find therein to the House. The second is an
+instruction, given on the 17th day of the same month of March, to this
+effect: That your Committee do report to this House the several matters
+which have occurred since the commencement of the said prosecution, and
+which have, in their opinion, contributed to the duration thereof to the
+present time, with their observations thereupon.
+
+Your Committee is sensible that the duration of the said trial, and the
+causes of that duration, as well as the matters which have therein
+occurred, do well merit the attentive consideration of this House. We
+have therefore endeavored with all diligence to employ the powers that
+have been granted and to execute the orders that have been given to us,
+and to report thereon as speedily as possible, and as fully as the time
+would admit.
+
+Your Committee has considered, first, the mere fact of the duration of
+the trial, which they find to have commenced on the 13th day of
+February, 1788, and to have continued, by various adjournments, to the
+said 17th of March. During that period the sittings of the Court have
+occupied one hundred and eighteen days, or about one third of a year.
+The distribution of the sitting days in each year is as follows.
+
+                                                  Days.
+In the year 1788, the Court sat                    35
+            1789,                                  17
+            1790,                                  14
+            1791,                                   5
+            1792,                                  22
+            1793,                                  22
+            1794, to the 1st of March, inclusive    3
+                                                 ----
+                                      Total       118
+
+Your Committee then proceeded to consider the causes of this duration,
+with regard to time as measured by the calendar, and also as measured by
+the number of days occupied in actual sitting. They find, on examining
+the duration of the trial with reference to the number of years which
+it has lasted, that it has been owing to several prorogations and to one
+dissolution of Parliament; to discussions which are supposed to have
+arisen in the House of Peers on the legality of the continuance of
+impeachments from Parliament to Parliament; that it has been owing to
+the number and length of the adjournments of the Court, particularly the
+adjournments on account of the Circuit, which adjournments were
+interposed in the middle of the session, and the most proper time for
+business; that it has been owing to one adjournment made in consequence
+of a complaint of the prisoner against one of your Managers, which took
+up a space of ten days; that two days' adjournments were made on account
+of the illness of certain of the Managers; and, as far as your Committee
+can judge, two sitting days were prevented by the sudden and unexpected
+dereliction of the defence of the prisoner at the close of the last
+session, your Managers not having been then ready to produce their
+evidence in reply, nor to make their observations on the evidence
+produced by the prisoner's counsel, as they expected the whole to have
+been gone through before they were called on for their reply. In this
+session your Committee computes that the trial was delayed about a week
+or ten days. The Lords waited for the recovery of the Marquis
+Cornwallis, the prisoner wishing to avail himself of the testimony of
+that noble person.
+
+With regard to the one hundred and eighteen days employed in actual
+sitting, the distribution of the business was in the manner following.
+
+There were spent,--
+
+                                                    Days
+In reading the articles of impeachment, and the
+defendant's answer, and in debate on the mode
+of proceeding                                          3
+
+Opening speeches, and summing up by the Managers      19
+
+Documentary and oral evidence by the Managers         51
+
+Opening speeches and summing up by the defendant's
+counsel, and defendant's addresses
+to the Court                                          22
+
+Documentary and oral evidence on the part of the
+defendant                                             23
+                                                    ----
+                                                     118
+
+The other head, namely, that the trial has occupied one hundred and
+eighteen days, or nearly one third of a year. This your Committee
+conceives to have arisen from the following immediate causes. First, the
+nature and extent of the matter to be tried. Secondly, the general
+nature and quality of the evidence produced: it was principally
+documentary evidence, contained in papers of great length, the whole of
+which was often required to be read when brought to prove a single short
+fact. Under the head of evidence must be taken into consideration the
+number and description of the witnesses examined and cross-examined.
+Thirdly, and principally, the duration of the trial is to be attributed
+to objections taken by the prisoner's counsel to the admissibility of
+several documents and persons offered as evidence on the part of the
+prosecution. These objections amounted to sixty-two: they gave rise to
+several debates, and to twelve references from the Court to the Judges.
+On the part of the Managers, the number of objections was small; the
+debates upon them were short; there was not upon them any reference to
+the Judges; and the Lords did not even retire upon any of them to the
+Chamber of Parliament.
+
+This last cause of the number of sitting days your Committee considers
+as far more important than all the rest. The questions upon the
+admissibility of evidence, the manner in which these questions were
+stated and were decided, the modes of proceeding, the great uncertainty
+of the principle upon which evidence in that court is to be admitted or
+rejected,--all these appear to your Committee materially to affect the
+constitution of the House of Peers as a court of judicature, as well as
+its powers, and the purposes it was intended to answer in the state. The
+Peers have a valuable interest in the conservation of their own lawful
+privileges. But this interest is not confined to the Lords. The Commons
+ought to partake in the advantage of the judicial rights and privileges
+of that high court. Courts are made for the suitors, and not the suitors
+for the court. The conservation of all other parts of the law, the whole
+indeed of the rights and liberties of the subject, ultimately depends
+upon the preservation of the Law of Parliament in its original force and
+authority.
+
+Your Committee had reason to entertain apprehensions that certain
+proceedings in this trial may possibly limit and weaken the means of
+carrying on any future impeachment of the Commons. As your Committee
+felt these apprehensions strongly, they thought it their duty to begin
+with humbly submitting facts and observations on the proceedings
+concerning evidence to the consideration of this House, before they
+proceed to state the other matters which come within the scope of the
+directions which they have received.
+
+To enable your Committee the better to execute the task imposed upon
+them in carrying on the impeachment of this House, and to find some
+principle on which they were to order and regulate their conduct
+therein, they found it necessary to look attentively to the jurisdiction
+of the court in which they were to act for this House, and into its laws
+and rules of proceeding, as well as into the rights and powers of the
+House of Commons in their impeachments.
+
+
+RELATION OF THE JUDGES, ETC., TO THE COURT OF PARLIAMENT.
+
+Upon examining into the course of proceeding in the House of Lords, and
+into the relation which exists between the Peers, on the one hand, and
+their attendants and assistants, the Judges of the Realm, Barons of the
+Exchequer of the Coif, the King's learned counsel, and the Civilians
+Masters of the Chancery, on the other, it appears to your Committee that
+these Judges, and other persons learned in the Common and Civil Laws,
+are no integrant and necessary part of that court. Their writs of
+summons are essentially different; and it does not appear that they or
+any of them have, or of right ought to have, a deliberative voice,
+either actually or virtually, in the judgments given in the High Court
+of Parliament. Their attendance in that court is solely ministerial; and
+their answers to questions put to them are not to be regarded as
+declaratory of the Law of Parliament, but are merely consultory
+responses, in order to furnish such matter (to be submitted to the
+judgment of the Peers) as may be useful in reasoning by analogy, so far
+as the nature of the rules in the respective courts of the learned
+persons consulted shall appear to the House to be applicable to the
+nature and circumstances of the case before them, and no otherwise.[1]
+
+
+JURISDICTION OF THE LORDS.
+
+Your Committee finds, that, in all impeachments of the Commons of Great
+Britain for high crimes and misdemeanors before the Peers in the High
+Court of Parliament, the Peers are not triers or jurors only, but, by
+the ancient laws and constitution of this kingdom, known by constant
+usage, are judges both of law and fact; and we conceive that the Lords
+are bound not to act in such a manner as to give rise to an opinion that
+they have virtually submitted to a division of their legal powers, or
+that, putting themselves into the situation of mere triers or jurors,
+they may suffer the evidence in the cause to be produced or not produced
+before them, according to the discretion of the judges of the inferior
+courts.
+
+
+LAW OF PARLIAMENT.
+
+Your Committee finds that the Lords, in matter of appeal or impeachment
+in Parliament, are not of right obliged to proceed according to the
+course or rules of the Roman Civil Law, or by those of the law or usage
+of any of the inferior courts in Westminster Hall, but by the law and
+usage of Parliament. And your Committee finds that this has been
+declared in the most clear and explicit manner by the House of Lords, in
+the year of our Lord 1387 and 1388, in the 11th year of King Richard II.
+
+Upon an appeal in Parliament then depending against certain great
+persons, peers and commoners, the said appeal was referred to the
+Justices, and other learned persons of the law. "At which time," it is
+said in the record, that "the Justices and Serjeants, and others the
+learned in the Law Civil, were charged, by order of the King our
+sovereign aforesaid, to give their faithful counsel to the Lords of the
+Parliament concerning the due proceedings in the cause of the appeal
+aforesaid. The which Justices, Serjeants, and the learned in the law of
+the kingdom, and also the learned in the Law Civil, have taken the same
+into deliberation, and have answered to the said Lords of Parliament,
+that they had seen and well considered the tenor of the said appeal; and
+they say that the same appeal was neither made nor pleaded according to
+the order which the one law or the other requires. Upon which the said
+Lords of Parliament have taken the same into deliberation and
+consultation, and by the assent of our said Lord the King, and of their
+common agreement, it was declared, that, in so high a crime as that
+which is charged in this appeal, which touches the person of our lord
+the King, and the state of the whole kingdom, perpetrated by persons who
+are peers of the kingdom, along with others, the cause shall not be
+tried in any other place but in Parliament, nor by any other law than
+the law and course of Parliament; and that it belongeth to the Lords of
+Parliament, and to their franchise and liberty by the ancient custom of
+the Parliament, to be judges in such cases, and in these cases to judge
+by the assent of the King; and thus it shall be done in this case, by
+the award of Parliament: because the realm of England has not been
+heretofore, nor is it the intention of our said lord the King and the
+Lords of Parliament that it ever should be governed by the Law Civil;
+and also, it is their resolution not to rule or govern so high a cause
+as this appeal is, which cannot be tried anywhere but in Parliament, as
+hath been said before, by the course, process, and order used in any
+courts or place inferior in the same kingdom; which courts and places
+are not more than the executors of the ancient laws and customs of the
+kingdom, and of the ordinances and establishments of Parliament. It was
+determined by the said Lords of Parliament, by the assent of our said
+lord the King, that this appeal was made and pleaded well and
+sufficiently, and that the process upon it is good and effectual,
+according to the law and course of Parliament; and for such they decree
+and adjudge it."[2]
+
+And your Committee finds, that toward the close of the same Parliament
+the same right was again claimed and admitted as the special privilege
+of the Peers, in the following manner:--"In this Parliament, all the
+Lords then present, Spiritual as well as Temporal, claimed as their
+franchise, that the weighty matters moved in this Parliament, and which
+shall be moved in other Parliaments in future times, touching the peers
+of the land, shall be managed, adjudged, and discussed by the course of
+Parliament, and in no sort by the Law Civil, or by the common law of the
+land, used in the other lower courts of the kingdom; which claim,
+liberty, and franchise the King graciously allowed and granted to them
+in full Parliament."[2]
+
+Your Committee finds that the Commons, having at that time considered
+the appeal above mentioned, approved the proceedings in it, and, as far
+as in them lay, added the sanction of their accusation against the
+persons who were the objects of the appeal. They also, immediately
+afterwards, impeached all the Judges of the Common Pleas, the Chief
+Baron of the Exchequer, and other learned and eminent persons, both
+peers and commoners; upon the conclusion of which impeachments it was
+that the second claim was entered. In all the transactions aforesaid the
+Commons were acting parties; yet neither then nor ever since have they
+made any objection or protestation, that the rule laid down by the Lords
+in the beginning of the session of 1388 ought not to be applied to the
+impeachments of commoners as well as peers. In many cases they have
+claimed the benefit of this rule; and in all cases they have acted, and
+the Peers have determined, upon the same general principles. The Peers
+have always supported the same franchises; nor are there any precedents
+upon the records of Parliament subverting either the general rule or the
+particular privilege, so far as the same relates either to the course of
+proceeding or to the rule of law by which the Lords are to judge.
+
+Your Committee observes also, that, in the commissions to the several
+Lords High Stewards who have been appointed on the trials of peers
+impeached by the Commons, the proceedings are directed to be had
+according to the law and custom of the kingdom, _and the custom of
+Parliament_: which words are not to be found in the commissions for
+trying upon indictments.
+
+"As every court of justice," says Lord Coke, "hath laws and customs for
+its direction, some by the Common Law, some by the Civil and Canon Law,
+some by peculiar laws and customs, &c., so the High Court of Parliament
+_suis propriis legibus et consuetudinibus subsistit_. It is by the _Lex
+et Consuetudo Parliamenti_, that all weighty matters in any Parliament
+moved, concerning the peers of the realm, or Commons in Parliament
+assembled, ought to be determined, adjudged, and discussed, by the
+course of the Parliament, and not by the Civil Law, nor yet by the
+common laws of this realm used in more inferior courts." And after
+founding himself on this very precedent of the 11th of Richard II., he
+adds, _"This is the reason that Judges ought not to give any opinion of
+a matter of Parliament, because it is not to be decided by the common
+laws, but secundum Legem et Consuetudinem Parliamenti: and so the Judges
+in divers Parliaments have confessed!"_[3]
+
+
+RULE OF PLEADING.
+
+Your Committee do not find that any rules of pleading, as observed in
+the inferior courts, have ever obtained in the proceedings of the High
+Court of Parliament, in a cause or matter in which the whole procedure
+has been within their original jurisdiction. Nor does your Committee
+find that any demurrer or exception, as of false or erroneous pleading,
+hath been ever admitted to any impeachment in Parliament, as not coming
+within the form of the pleading; and although a reservation or protest
+is made by the defendant (matter of form, as we conceive) "to the
+generality, uncertainty, and insufficiency of the articles of
+impeachment," yet no objections have in fact been ever made in any part
+of the record; and when verbally they have been made, (until this
+trial,) they have constantly been overruled.
+
+The trial of Lord Strafford[4] is one of the most important eras in the
+history of Parliamentary judicature. In that trial, and in the
+dispositions made preparatory to it, the process on impeachments was, on
+great consideration, research, and selection of precedents, brought very
+nearly to the form which it retains at this day; and great and important
+parts of Parliamentary Law were then laid down. The Commons at that time
+made new charges or amended the old as they saw occasion. Upon an
+application from the Commons to the Lords, that the examinations taken
+by their Lordships, at their request, might be delivered to them, for
+the purpose of a more exact specification of the charge they had made,
+on delivering the message of the Commons, Mr. Pym, amongst other things,
+said, as it is entered in the Lords' Journals, "According to the clause
+of reservation in the conclusion of their charge, they [the Commons]
+will add to the charges, not to the matter in respect of comprehension,
+extent, or kind, but only to reduce them to more particularities, that
+the Earl of Strafford might answer with the more clearness and
+expedition: _not that they are bound by this way of SPECIAL charge; and
+therefore they have taken care in their House, upon protestation, that
+this shall be no prejudice to bind them from proceeding in GENERAL in
+other cases, and that they are not to be ruled by proceedings in other
+courts, which protestation they have made for the preservation of the
+power of Parliament; and they desire that the like care may be had in
+your Lordships' House_."[5] This protestation is entered on the Lords'
+Journals. Thus careful were the Commons that no exactness used by them
+for a temporary accommodation, should become an example derogatory to
+the larger rights of Parliamentary process.
+
+At length the question of their being obliged to conform to any of the
+rules below came to a formal judgment. In the trial of Dr. Sacheverell,
+March 10th, 1709, the Lord Nottingham "desired their Lordships' opinion,
+whether he might propose a question to the Judges _here_ [in Westminster
+Hall]. Thereupon the Lords, being moved to adjourn, adjourned to the
+House of Lords, and on debate," as appears by a note, "it was agreed
+that the question should be proposed in Westminster Hall."[6]
+Accordingly, when the Lords returned the same day into the Hall, the
+question was put by Lord Nottingham, and stated to the Judges by the
+Lord Chancellor: "Whether, by the _law of England_, and constant
+practice in all prosecutions by _indictment and information_ for crimes
+and misdemeanors by writing or speaking, the particular words supposed
+to be written or spoken must not be expressly specified in the
+indictment or information?" On this question the Judges, _seriatim_, and
+in open court, delivered their opinion: the substance of which was,
+"That, by the laws of England, and the constant practice in Westminster
+Hall, the words ought to be expressly specified in the indictment or
+information." Then the Lords adjourned, and did not come into the Hall
+until the 20th. In the intermediate time they came to resolutions on the
+matter of the question put to the Judges. Dr. Sacheverell, being found
+guilty, moved in arrest of judgment upon two points. The first, which he
+grounded on the opinion of the Judges, and which your Committee thinks
+most to the present purpose, was, "That no entire clause, or sentence,
+or expression, in either of his sermons or dedications, is particularly
+set forth in his impeachment, which he has already heard the Judges
+declare to be necessary in all cases of indictments or informations."[7]
+On this head of objection, the Lord Chancellor, on the 23d of March,
+agreeably to the resolutions of the Lords of the 14th and 16th of March,
+acquainted Dr. Sacheverell, "That, on occasion of the question before
+put to the Judges _in Westminster Hall_, and their answer thereto, their
+Lordships had fully debated and considered of that matter, and had come
+to the following resolution: 'That this House will proceed to the
+determination of the impeachment of Dr. Henry Sacheverell, according to
+the _law of the land, and the law and usage of Parliament_.' And
+afterwards to this resolution: 'That, by _the law and usage of
+Parliament_ in prosecutions for high crimes and misdemeanors by writing
+or speaking, the particular words supposed to be criminal are _not
+necessary_ to be expressly specified in such impeachment.' So that, in
+their Lordships' opinion, the law and usage of the High Court of
+Parliament being _a part of the law of the land_, and that usage not
+requiring that words should be exactly specified in impeachments, the
+answer of the Judges, which related only to the course of _indictments
+and informations_, does not in the least affect your case."[8]
+
+On this solemn judgment concerning the law and usage of Parliament, it
+is to be remarked: First, that the impeachment itself is not to be
+presumed inartificially drawn. It appears to have been the work of some
+of the greatest lawyers of the time, who were perfectly versed in the
+manner of pleading in the courts below, and would naturally have
+imitated their course, if they had not been justly fearful of setting an
+example which might hereafter subject the plainness and simplicity of a
+Parliamentary proceeding to the technical subtilties of the inferior
+courts. Secondly, that the question put to the Judges, and their answer,
+were strictly confined to the law and practice below; and that nothing
+in either had a tendency to their delivering an opinion concerning
+Parliament, its laws, its usages, its course of proceeding, or its
+powers. Thirdly, that the motion in arrest of judgment, grounded on the
+opinion of the Judges, was made only by Dr. Sacheverell himself, and not
+by his counsel, men of great skill and learning, who, if they thought
+the objections had any weight, would undoubtedly have made and argued
+them.
+
+Here, as in the case of the 11th King Richard II., the Judges declared
+unanimously, that such an objection would be fatal to such a pleading in
+any indictment or information; but the Lords, as on the former occasion,
+overruled this objection, and held the article to be good and valid,
+notwithstanding the report of the Judges concerning the mode of
+proceeding in the courts below.
+
+Your Committee finds that a protest, with reasons at large, was entered
+by several lords against this determination of their court.[9] It is
+always an advantage to those who protest, that their reasons appear upon
+record; whilst the reasons of the majority, who determine the question,
+do not appear. This would be a disadvantage of such importance as
+greatly to impair, if not totally to destroy, the effect of precedent as
+authority, if the reasons which prevailed were not justly presumed to be
+more valid than those which have been obliged to give way: the former
+having governed the final and conclusive decision of a competent court.
+But your Committee, combining the fact of this decision with the early
+decision just quoted, and with the total absence of any precedent of an
+objection, before that time or since, allowed to pleading, or what has
+any relation to the rules and principles of pleading, as used in
+Westminster Hall, has no doubt that the House of Lords was governed in
+the 9th of Anne by the very same principles which it had solemnly
+declared in the 11th of Richard II.
+
+But besides the presumption in favor of the reasons which must be
+supposed to have produced this solemn judgment of the Peers, contrary to
+the practice of the courts below, as declared by all the Judges, it is
+probable that the Lords were unwilling to take a step which might admit
+that anything in that practice should be received as their rule. It must
+be observed, however, that the reasons against the article alleged in
+the protest were by no means solely bottomed in the practice of the
+courts below, as if the main reliance of the protesters was upon that
+usage. The protesting minority maintained that it was not agreeable to
+_several precedents in Parliament_; of which they cited many in favor
+of their opinion. It appears by the Journals, that the clerks were
+ordered to search for precedents, and a committee of peers was appointed
+to inspect the said precedents, and to report upon them,--and that they
+did inspect and report accordingly. But the report is not entered on the
+Journals. It is, however, to be presumed that the greater number and the
+better precedents supported the judgment. Allowing, however, their
+utmost force to the precedents there cited, they could serve only to
+prove, that, in the case of _words_, (to which alone, and not the case
+of a _written_ libel, the precedents extended,) such a special averment,
+according to the tenor of the words, had been used; but not that it was
+necessary, or that ever any plea had been rejected upon such an
+objection. As to the course of Parliament, resorted to for authority in
+this part of the protest, the argument seems rather to affirm than to
+deny the general proposition, that its own course, and not that of the
+inferior courts, had been the rule and law of Parliament.
+
+As to the objection, taken in the protest, drawn from natural right, the
+Lords knew, and it appears in the course of the proceeding, that the
+whole of the libel had been read at length, as appears from p. 655 to p.
+666.[10] So that Dr. Sacheverell had _substantially_ the same benefit of
+anything which could be alleged in the extenuation or exculpation as if
+his libellous sermons had been entered _verbatim_ upon the recorded
+impeachment. It was adjudged sufficient to state the crime _generally_
+in the impeachment. The libels were given _in evidence_; and it was not
+then thought of, that nothing should be given in evidence which was not
+specially charged in the impeachment.
+
+But whatever their reasons were, (great and grave they were, no doubt,)
+such as your Committee has stated it is the _judgment_ of the Peers on
+the Law of Parliament, as a part of the law of the land. It is the more
+forcible as concurring with the judgment in the 11th of Richard II., and
+with the total silence of the Rolls and Journals concerning any
+objection to pleading ever being suffered to vitiate an impeachment, or
+to prevent evidence being given upon it, on account of its generality,
+or any other failure.
+
+Your Committee do not think it probable, that, even before this
+adjudication, the rules of pleading below could ever have been adopted
+in a Parliamentary proceeding, when it is considered that the several
+statutes of Jeofails, not less than twelve in number,[11] have been made
+for the correction of an over-strictness in pleading, to the prejudice
+of substantial justice: yet in no one of these is to be discovered the
+least mention of any proceeding in Parliament. There is no doubt that
+the legislature would have applied its remedy to that grievance in
+Parliamentary proceedings, if it had found those proceedings embarrassed
+with what Lord Mansfield, from the bench, and speaking of the matter of
+these statutes, very justly calls "disgraceful subtilties."
+
+What is still more strong to the point, your Committee finds that in the
+7th of William III. an act was made for the regulating of trials for
+treason and misprision of treason, containing several regulations for
+reformation of proceedings at law, both as to matters of form and
+substance, as well as relative to evidence. It is an act thought most
+essential to the liberty of the subject; yet in this high and critical
+matter, so deeply affecting the lives, properties, honors, and even the
+inheritable blood of the subject, the legislature was so tender of the
+high powers of this high court, deemed so necessary for the attainment
+of the great objects of its justice, so fearful of enervating any of its
+means or circumscribing any of its capacities, even by rules and
+restraints the most necessary for the inferior courts, that they guarded
+against it by an express proviso, "that neither this act, nor anything
+therein contained, shall any ways extend to _any impeachment or other
+proceedings in Parliament, in any land whatsoever_."[12]
+
+
+CONDUCT OF THE COMMONS IN PLEADING.
+
+This point being thus solemnly adjudged in the case of Dr. Sacheverell,
+and the principles of the judgment being in agreement with the whole
+course of Parliamentary proceedings, the Managers for this House have
+ever since considered it as an indispensable duty to assert the same
+principle, in all its latitude, upon all occasions on which it could
+come in question,--and to assert it with an energy, zeal, and
+earnestness proportioned to the magnitude and importance of the interest
+of the Commons of Great Britain in the religious observation of the
+rule, _that the Law of Parliament, and the Law of Parliament only,
+should prevail in the trial of their impeachments_.
+
+In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of
+high treason the lords who had entered into the rebellion of that
+period. This was about six years after the decision in the case of
+Sacheverell. On the trial of one of these lords, (the Lord Wintoun,[13])
+after verdict, the prisoner moved in arrest of judgment, and excepted
+against the impeachment for error, on account of the treason therein
+laid "not being described with sufficient certainty,--the day on which
+the treason was committed not having been alleged." His counsel was
+heard to this point. They contended, "that the forfeitures in cases of
+treason are very great, and therefore they humbly conceived that the
+accusation ought to contain all the certainty it is capable of, that the
+prisoner may not by _general allegations_ be rendered incapable to
+defend himself in a case which may prove fatal to him: that they would
+not trouble their Lordships with citing authorities; for they believed
+there is not one gentleman of the long robe but will agree that an
+indictment for any capital offence to be erroneous, if the offence be
+not alleged to be committed on a certain day: that this impeachment set
+forth only that in or about the months of September, October, or
+November, 1715, the offence charged in the impeachment had been
+committed." The counsel argued, "that a proceeding by impeachment is a
+proceeding at the Common Law, for _Lex Parliamentaria_ is a part of
+Common Law, and they submitted whether there is not the same certainty
+required in one method of proceeding at Common Law as in another."
+
+The matter was argued elaborately and learnedly, not only on the general
+principles of the proceedings below, but on the inconvenience and
+possible hardships attending this uncertainty. They quoted Sacheverell's
+case, in whose impeachment "the precise days were laid when the Doctor
+preached each of these two sermons; and that by a like reason a certain
+day ought to be laid in the impeachment when this treason was committed;
+and that the authority of Dr. Sacheverell's case seemed so much stronger
+than the case in question as the crime of treason is higher than that of
+a misdemeanor."
+
+Here the Managers for the Commons brought the point a second time to an
+issue, and that on the highest of capital cases: an issue, the event of
+which was to determine forever whether their impeachments were to be
+regulated by the law as understood and observed in the inferior courts.
+Upon the usage below there was no doubt; the indictment would
+unquestionably have been quashed. But the Managers for the Commons stood
+forth upon this occasion with a determined resolution, and no less than
+four of them _seriatim_ rejected the doctrine contended for by Lord
+Wintoun's counsel. They were all eminent members of Parliament, and
+three of them great and eminent lawyers, namely, the then
+Attorney-General, Sir William Thomson, and Mr. Cowper.
+
+Mr. Walpole said,--"Those learned gentlemen [Lord Wintoun's counsel]
+_seem to forget in what court they are_. They have taken up so much of
+your Lordships' time in quoting of authorities, and using arguments to
+show your Lordships what would quash an indictment in _the courts
+below_, that they seemed to forget they are now in _a Court of
+Parliament, and on an impeachment of the Commons of Great Britain_. For,
+should the Commons admit all that they have offered, it will not follow
+that the impeachment of the Commons is insufficient; and I must observe
+to your Lordships, that neither of the learned gentlemen have offered to
+produce one instance relative to an impeachment. I mean to show that the
+sufficiency of an impeachment was never called in question for the
+generality of the charge, or that any instance of that nature was
+offered at before. The Commons don't conceive, that, if this exception
+would quash an indictment, it would therefore make the impeachment
+insufficient. I hope it never will be allowed here as a reason, that
+what quashes an indictment in the courts below will make insufficient an
+impeachment brought by the Commons of Great Britain."
+
+The Attorney-General supported Mr. Walpole in affirmance of this
+principle. He said,--"I would follow the steps of the learned gentleman
+who spoke before me, and I think he has given a good answer to these
+objections. I would take notice that we are upon an impeachment, not
+upon an indictment. The courts below have set forms to themselves, which
+have prevailed for a long course of time, and thereby are become the
+forms by which those courts are to govern themselves; but it never was
+thought that the forms of those courts had any influence on the
+proceedings of Parliament. In Richard II.'s time, it is said in the
+records of Parliament, that proceedings in Parliament are not to be
+governed by the forms of Westminster Hall. We are in the case of an
+impeachment, and in the Court of Parliament. Your Lordships have already
+given judgment against six upon this impeachment, and it is warranted by
+the precedents in Parliament; therefore we insist that the articles are
+good in substance."
+
+Mr. Cowper.--"They [the counsel] cannot but know that the usages of
+Parliaments are part of the laws of the land, although they differ in
+many instances from the Common Law, as practised in the inferior courts,
+in point of form. My Lords, if the Commons, in preparing articles of
+impeachment, should govern themselves by precedents of indictments, in
+my humble opinion they would depart from the ancient, nay, the constant,
+usage and practice of Parliament. It is well known that the form of an
+impeachment has very little resemblance to that of an indictment; and I
+believe the Commons will endeavor to preserve the difference, by
+adhering to their own precedents."
+
+Sir William Thomson.--"We must refer to the forms and proceedings in the
+Court of Parliament, and which must be owned to be part of the law of
+the land. It has been mentioned already to your Lordships, that the
+precedents in impeachments are not so nice and precise in form as in the
+inferior courts; and we presume your Lordships will be governed by the
+forms of your own court, (especially forms that are not essential to
+justice,) as the courts below are by theirs: which courts differ one
+from the other in many respects as to their forms of proceedings, and
+the practice of each court is esteemed as the law of that court."
+
+The Attorney-General in reply maintained his first doctrine. "There is
+no uncertainty; in it _that can be to the prejudice of the prisoner_: we
+insist, it is according to _the forms of Parliament_: he has pleaded to
+it, and your Lordships have found him guilty."
+
+The opinions of the Judges were taken in the House of Lords, on the 19th
+of March, 1715, upon two questions which had been argued in arrest of
+judgment, grounded chiefly on the practice of the courts below. To the
+first the Judges answered,--"_It is necessary_ that there be a _certain_
+day laid in such indictments, on which the fact is alleged to be
+committed; and that alleging in such indictments that the fact was
+committed at or about a certain day would not be sufficient." To the
+second they answered, "that, although a day certain, when the fact is
+supposed to be done, be alleged in such indictments, yet it is not
+necessary upon the trial to prove the fact to be committed upon _that
+day_; but it is sufficient, if proved to be done _on any other day
+before_ the indictment found."
+
+Then it was "agreed by the House, and ordered, that the Lord High
+Steward be directed to acquaint the prisoner at the bar in Westminster
+Hall, 'that the Lords have considered of the matters moved in arrest of
+judgment, and are of opinion that they are not sufficient to arrest the
+same, but that the _impeachment_ is sufficiently certain in point of
+time _according to the form of impeachments in Parliament_.'"[14]
+
+On this final adjudication, (given after solemn argument, and after
+taking the opinion of the Judges,) in affirmance of the Law of
+Parliament against the undisputed usage of the courts below, your
+Committee has to remark,--1st, The preference of the custom of
+Parliament to the usage below. By the very latitude of the charge, the
+Parliamentary accusation gives the prisoner fair notice to prepare
+himself upon all points: whereas there seems something insnaring in the
+proceedings upon indictment, which, fixing the specification of a day
+certain for the treason or felony as absolutely necessary in the
+charge, gives notice for preparation only on _that day_, whilst the
+prosecutor has the whole range of time antecedent to the indictment to
+allege and give evidence of facts against the prisoner. It has been
+usual, particularly in later indictments, to add, "at several other
+times"; but the strictness of naming one day is still necessary, and the
+want of the larger words would not quash the indictment. 2dly, A
+comparison of the extreme rigor and exactness required in the more
+_formal_ part of the proceeding (the indictment) with the extreme laxity
+used in the _substantial_ part (that is to say, the evidence received to
+prove the fact) fully demonstrates that the partisans of those forms
+would put shackles on the High Court of Parliament, with which they are
+not willing, or find it wholly impracticable, to bind themselves. 3dly,
+That the latitude of departure from the letter of the indictment (which
+holds in other matters besides this) is in appearance much more contrary
+to natural justice than anything which has been objected against the
+evidence offered by your Managers, under a pretence that it exceeded the
+limits of pleading. For, in the case of indictments below, it must be
+admitted that the prisoner may be unprovided with proof of an alibi, and
+other material means of defence, or may find some matters unlooked-for
+produced against him, by witnesses utterly unknown to him: whereas
+nothing was offered to be given in evidence, under any of the articles
+of this impeachment, except such as the prisoner must have had perfect
+knowledge of; the whole consisting of matters sent over by himself to
+the Court of Directors, and authenticated under his own hand. No
+substantial injustice or hardship of any kind could arise from our
+evidence under our pleading: whereas in theirs very great and serious
+inconveniencies might happen.
+
+Your Committee has further to observe, that, in the case of Lord
+Wintoun, as in the case of Dr. Sacheverell, the Commons had in their
+Managers persons abundantly practised in the law, as used in the
+inferior jurisdictions, who could easily have followed the precedents of
+indictments, if they had not purposely, and for the best reasons,
+avoided such precedents.
+
+A great writer on the criminal law, Justice Foster, in one of his
+Discourses,[15] fully recognizes those principles for which your
+Managers have contended, and which have to this time been uniformly
+observed in Parliament. In a very elaborate reasoning on the case of a
+trial in Parliament, (the trial of those who had murdered Edward II.,)
+he observes thus:--"It is _well known_, that, in _Parliamentary_
+proceedings of this kind, _it is, and ever was_, sufficient that matters
+appear with proper light and certainty to _a common understanding_,
+without that minute exactness which is required in criminal proceedings
+in Westminster Hall. In these cases the rule has always been, _Loquendum
+ut vulgus_." And in a note he says,--"In the proceeding against
+Mortimer, in this Parliament, _so little regard was had to the forms
+used in legal proceedings_, that he who had been frequently summoned to
+Parliament as a baron, and had lately been created Earl of March, is
+styled through the whole record merely Roger de Mortimer."
+
+The departure from the common forms in the first case alluded to by
+Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in
+the murder of Edward II.[16]) might be more plausibly attacked, because
+they were tried, though in Parliament, by a jury of freeholders: which
+circumstance might have given occasion to justify a nearer approach to
+the forms of indictments below. But no such forms were observed, nor in
+the opinion of this able judge ought they to have been observed.
+
+
+PUBLICITY OF THE JUDGES' OPINIONS.
+
+It appears to your Committee, that, from the 30th year of King Charles
+II. until the trial of Warren Hastings, Esquire, in all trials in
+Parliament, as well upon impeachments of the Commons as on indictments
+brought up by _Certiorari_, when any matter of law hath been agitated at
+the bar, or in the course of trial hath been stated by any lord in the
+court, it hath been the prevalent custom to state the same in open
+court. Your Committee has been able to find, since that period, no more
+than one precedent (and that a precedent rather in form than in
+substance) of the opinions of the Judges being taken privately, except
+when the case on both sides has been closed, and the Lords have retired
+to consider of their verdict or of their judgment thereon. Upon the
+soundest and best precedents, the Lords have improved on the principles
+of publicity and equality, and have called upon the parties severally to
+argue the matter of law, previously to a reference to the Judges, who,
+on their parts, have afterwards, _in open court_, delivered their
+opinions, often by the mouth of one of the Judges, speaking for himself
+and the rest, and in their presence: and sometimes all the Judges have
+delivered their opinion _seriatim_, (even when they have been unanimous
+in it,) together with their reasons upon which their opinion had been
+founded. This, from the most early times, has been the course in all
+judgments in the House of Peers. Formerly even the record contained the
+reasons of the decision. "The reason wherefore," said Lord Coke, "the
+records of Parliaments have been so highly extolled is, that therein is
+set down, in cases of difficulty, not only the judgment and resolution,
+but _the reasons and causes of the same_ by so great advice."[17]
+
+In the 30th of Charles II., during the trial of Lord Cornwallis,[18] on
+the suggestion of a question in law to the Judges, Lord Danby demanded
+of the Lord High Steward, the Earl of Nottingham, "whether it would be
+proper here [in open court] to ask the question of your Grace, or to
+propose it to the Judges?" The Lord High Steward answered,--"If your
+Lordships doubt of anything whereon a question in law ariseth, the
+latter opinion, and the _better_ for the prisoner, is, _that it must be
+stated in the presence of the prisoner, that he may know whether the
+question be truly put_. It hath _sometimes_ been practised otherwise,
+and the Peers have sent for the Judges, and have asked their opinion in
+private, and have come back, and have given their verdict according to
+that opinion; and there is scarcely a precedent of its being otherwise
+done. There is a later authority in print that doth settle the point so
+as I tell you, and I do conceive _it ought to be followed_; and it
+being safer for the prisoner, my humble opinion to your Lordship is,
+that he ought to be present at _the stating of the question_. Call the
+_prisoner_." The prisoner, who had withdrawn, again appearing, he
+said,--"My Lord Cornwallis, my Lords the Peers, since they have
+withdrawn, have conceived a doubt in some matter [of law arising upon
+the matter] of fact in your case; and they have that tender regard of a
+prisoner at the bar, _that they will not suffer a case to be put up in
+his absence_, lest it should chance to prejudice him by being _wrong
+stated_." Accordingly the question was both put and the Judges' answer
+given publicly and in his presence.
+
+Very soon after the trial of Lord Cornwallis, the impeachment against
+Lord Stafford was brought to a hearing,--that is, in the 32d of Charles
+II. In that case the lord at the bar having stated a point of law,
+"touching the necessity of two witnesses to an overt act in case of
+treason," the Lord High Steward told Lord Stafford, that "all the Judges
+that assist them, _and are here in your Lordship's presence and
+hearing_, should deliver their opinions whether it be doubtful and
+disputable or not." Accordingly the Judges delivered their opinion, and
+each argued it (though they were all agreed) _seriatim_ and _in open
+court_. Another abstract point of law was also proposed from the bar, on
+the same trial, concerning the legal sentence in high treason; and in
+the same manner the Judges on reference delivered their opinion _in open
+court_; and no objection, was taken to it as anything new or
+irregular.[19]
+
+In the 1st of James II. came on a remarkable trial of a peer,--the trial
+of Lord Delamere. On that occasion a question of law was stated. There
+also, in conformity to the precedents and principles given on the trial
+of Lord Cornwallis, and the precedent in the impeachment of Lord
+Stafford, the then Lord High Steward took care that the opinion of the
+Judges should be given in open court.
+
+Precedents grounded on principles so favorable to the fairness and
+equity of judicial proceedings, given in the reigns of Charles II. and
+James II., were not likely to be abandoned after the Revolution. The
+first trial of a peer which we find after the Revolution was that of the
+Earl of Warwick.
+
+In the case of the Earl of Warwick, 11 Will. III., a question in law
+upon evidence was put to the Judges; the statement of the question was
+made in open court by the Lord High Steward, Lord Somers:--"If there be
+six in company, and one of them is killed, the other five are afterwards
+indicted, and three are tried and found guilty of manslaughter, and upon
+their prayers have their clergy allowed, and the burning in the hand is
+respited, but not pardoned,--whether any of the three can be a witness
+on the trial of the other two?"
+
+Lord Halifax.--"I suppose your Lordships will have the opinion of the
+Judges upon this point: _and that must be in the presence of the
+prisoner_."
+
+Lord High Steward (Lord Somers).--"_It must certainly be in the presence
+of the prisoner_, if you ask the Judges' opinions."[20]
+
+In the same year, Lord Mohun was brought to trial upon an indictment for
+murder. In this single trial a greater number of questions was put to
+the Judges in matter of law than probably was ever referred to the
+Judges in all the collective body of trials, before or since that
+period. That trial, therefore, furnishes the largest body of authentic
+precedents in this point to be found in the records of Parliament. The
+number of questions put to the Judges in this trial was twenty-three.
+They all originated from the Peers themselves; yet the Court called upon
+the party's counsel, as often as questions were proposed to be referred
+to the Judges, as well as on the counsel for the Crown, to argue every
+one of them _before_ they went to those learned persons. Many of the
+questions accordingly were argued at the bar at great length. The
+opinions were given and argued _in open court_. Peers frequently
+insisted that the Judges should give their opinions _seriatim_, which
+they did always publicly in the court, with great gravity and dignity,
+and greatly to the illustration of the law, as they held and acted upon
+it in their own courts.[21]
+
+In Sacheverell's case (just cited for another purpose) the Earl of
+Nottingham demanded whether he might not propose a question of law to
+the Judges _in open court_. It was agreed to; and the Judges gave their
+answer _in open court_, though this was after verdict given: and in
+consequence of the advantage afforded to the prisoner in hearing _the
+opinion_ of the Judges, he was thereupon enabled to move in arrest of
+judgment.
+
+The next precedent which your Committee finds of a question put by the
+Lords, sitting as a court of judicature, to the Judges, pending the
+trial, was in the 20th of George II., when Lord Balmerino, who was tried
+on an indictment for high treason, having raised a doubt whether the
+evidence proved him to be at the place assigned for the overt act of
+treason on the day laid in the indictment, the point was argued at the
+bar by the counsel for the Crown in the prisoner's presence, and for his
+satisfaction. The prisoner, on hearing the argument, waived his
+objection; but the then Lord President moving their Lordships to adjourn
+to the Chamber of Parliament, the Lords adjourned accordingly, and after
+some time returning into Westminster Hall, the Lord High Steward (Lord
+Hardwicke) said,--
+
+"Your Lordships were pleased, in the Chamber of Parliament, to come to a
+resolution that the opinion of the learned and reverend Judges should be
+taken on the following question, namely, Whether it is necessary that an
+overt act of high treason should be proved to have been committed on the
+particular day laid in the indictment? Is it your Lordships' pleasure
+that the Judges do now give their opinion on that question?"
+
+Lords.--"Ay, ay."
+
+Lord High Steward.--"My Lord Chief-Justice!"
+
+Lord Chief-Justice (Lord Chief-Justice Lee).--"The question proposed by
+your Lordships is, Whether it be necessary that an overt act of high
+treason should be proved to be committed on the particular day laid in
+the indictment? We are all of opinion that it is not necessary to prove
+the overt act to be committed on the particular day laid in the
+indictment; but as evidence may be given of an overt act before the day,
+so it may be after the day specified in the indictment; for the day laid
+is circumstance and form only, and not material in point of proof: this
+is the known constant course of proceeding in trials."
+
+Here the case was made for the Judges, for the satisfaction of one of
+the Peers, after the prisoner had waived his objection. Yet it was
+thought proper, as a matter of course and of right, that the Judges
+should state the question put to them in the open court, and in presence
+of the prisoner,--and that in the same open manner, and in the same
+presence, their answer should be delivered.[22]
+
+Your Committee concludes their precedents begun under Lord Nottingham,
+and ended under Lord Hardwicke. They are of opinion that a body of
+precedents so uniform, so accordant with principle, made in such times,
+and under the authority of a succession of such great men, ought not to
+have been departed from. The single precedent to the contrary, to which
+your Committee has alluded above, was on the trial of the Duchess of
+Kingston, in the reign of his present Majesty. But in that instance the
+reasons of the Judges were, by order of the House, delivered in writing,
+and entered at length on the Journals:[23] so that the legal principle
+of the decision is equally to be found: which is not the case in any one
+instance of the present impeachment.
+
+The Earl of Nottingham, in Lord Cornwallis's case, conceived, though it
+was proper and agreeable to justice, that this mode of putting questions
+to the Judges and receiving their answer in public was not supported by
+former precedents; but he thought a book of authority had declared in
+favor of this course. Your Committee is very sensible, that, antecedent
+to the great period to which they refer, there are instances of
+questions having been put to the Judges privately. But we find the
+_principle_ of publicity (whatever variations from it there might be in
+practice) to have been so clearly established at a more early period,
+that all the Judges of England resolved in Lord Morley's trial, in the
+year 1666, (about twelve years before the observation of Lord
+Nottingham,) _on a supposition that the trial should be actually
+concluded, and the Lords retired to the Chamber of Parliament to consult
+on their verdict_, that even in that case, (much stronger than the
+observation of your Committee requires for its support,) if their
+opinions should then be demanded by the Peers, for the information of
+their private conscience, yet they determined that they should be given
+in public. This resolution is in itself so solemn, and is so bottomed on
+constitutional principle and legal policy, that your Committee have
+thought fit to insert it _verbatim_ in their Report, as they relied upon
+it at the bar of the Court, when they contended for the same publicity.
+
+"It was resolved, that, in case the Peers who are triers, _after the
+evidence given, and the prisoner withdrawn, and they gone to consult of
+the verdict_, should desire to speak with any of the Judges, to have
+their opinion upon any point of law, that, if the Lord Steward spoke to
+us to go, we should go to them; but when the Lords asked us any
+question, we should not deliver any private opinion, but let them know
+_we were not to deliver any private opinion without conference with the
+rest of the Judges, and that to be done openly in court; and this
+(notwithstanding the precedent in the case of the Earl of Castlehaven)
+was thought prudent in regard of ourselves, as well as for the avoiding
+suspicion which might grow by private opinions: ALL resolutions of
+Judges being ALWAYS done in public_."[24]
+
+The Judges in this resolution overruled the authority of the precedent,
+which militated against the whole spirit of their place and profession.
+Their declaration was without reserve or exception, that "_all_
+resolutions of the Judges are _always_ done in public." These Judges (as
+should be remembered to their lasting honor) did not think it derogatory
+from their dignity, nor from their duty to the House of Lords, to take
+such measures concerning the publicity of their resolutions as should
+secure them from suspicion. They knew that the mere circumstance of
+privacy in a judicature, where any publicity is in use, tends to beget
+suspicion and jealousy. Your Committee is of opinion that the honorable
+policy of avoiding suspicion by avoiding privacy is not lessened by
+anything which exists in the present time and in the present trial.
+
+Your Committee has here to remark, that this learned Judge seemed to
+think the case of Lord Audley (Castlehaven) to be more against him than
+in truth it was. The precedents were as follow. The opinions of the
+Judges were taken three times: the first time by the Attorney-General at
+Serjeants' Inn, antecedent to the trial; the last time, after the Peers
+had retired to consult on their verdict; the middle time _was during the
+trial itself_: and here the opinion was taken in open court, agreeably
+to what your Committee contends to have been the usage ever since this
+resolution of the Judges.[25] What was done before seemed to have passed
+_sub silentio_, and possibly through mere inadvertence.
+
+Your Committee observes, that the precedents by them relied on were
+furnished from times in which the judicial proceedings in Parliament,
+and in all our courts, had obtained a very regular form. They were
+furnished at a period in which Justice Blackstone remarks that more laws
+were passed of importance to the rights and liberties of the subject
+than in any other. These precedents lean all one way, and carry no marks
+of accommodation to the variable spirit of the times and of political
+occasions. They are the same before and after the Revolution. They are
+the same through five reigns. The great men who presided in the
+tribunals which furnished these examples were in opposite political
+interests, but all distinguished for their ability, integrity, and
+learning.
+
+The Earl of Nottingham, who was the first on the bench to promulgate
+this publicity as a rule, has not left us to seek the principle in the
+case: that very learned man considers the publicity of the questions and
+answers as a matter of justice, _and of justice favorable to the
+prisoner_. In the case of Mr. Hastings, the prisoner's counsel did not
+join your Committee in their endeavors to obtain the publicity we
+demanded. Their reasons we can only conjecture. But your Managers,
+acting for this House, were not the less bound to see that the due
+Parliamentary course should be pursued, even when it is most favorable
+to those whom they impeach. If it should answer the purposes of one
+prisoner to waive the rights which belong to all prisoners, it was the
+duty of your Managers to protect those general rights against that
+particular prisoner. It was still more their duty to endeavor that their
+_own_ questions should not be erroneously stated, or cases put which
+varied from those which they argued, or opinions given in a manner not
+supported by the spirit of our laws and institutions or by analogy with
+the practice of all our courts.
+
+Your Committee, much in the dark about a matter in which it was so
+necessary that they should receive every light, have heard, that, in
+debating this matter abroad, it has been objected, that many of the
+precedents on which we most relied were furnished in the courts of the
+Lord High Steward, and not in trials where the Peers were Judges,--and
+that the Lord High Steward not having it in his power to retire with the
+juror Peers, the Judges' opinions, from necessity, not from equity to
+the parties, were given before that magistrate.
+
+Your Committee thinks it scarcely possible that the Lords could be
+influenced by such a feeble argument. For, admitting the fact to have
+been as supposed, there is no sort of reason why so uniform a course of
+precedents, in a legal court composed of a peer for judge and peers for
+triers, a course so favorable to all parties and to equal justice, a
+course in concurrence with the procedure of all our other courts, should
+not have the greatest authority over their practice in every trial
+before _the whole body_ of the peerage.
+
+The Earl of Nottingham, who acted as High Steward in one of these
+commissions, certainly knew what he was saying. He gave no such reason.
+His argument for the publicity of the Judges' opinions did not turn at
+all on the nature of his court, or of his office in that court. It
+rested on the equity of the principle, and on the fair dealing due to
+the prisoner.
+
+Lord Somers was in no such court; yet his declaration is full as strong.
+He does not, indeed, argue the point, as the Earl of Nottingham did,
+when he considered it as a new case. Lord Somers considers it as a
+point quite settled, and no longer standing in need of being supported
+by reason or precedent.
+
+But it is a mistake that the precedents stated in this Report are wholly
+drawn from proceedings in that kind of court. Only two are cited which
+are furnished from a court constituted in the manner supposed. The rest
+were in trials by all the peers, and not by a jury of peers with an High
+Steward.
+
+After long discussions with the Peers on this subject, "the Lords'
+committees in a conference told them (the committee of this House,
+appointed to a conference on the matter) that the High Steward is but
+Speaker _pro tempore_, and giveth his vote as well as the other lords:
+this changeth not the nature of the court. And the Lords declared, that
+they have power enough to proceed to trial, though the King should not
+name an High Steward." On the same day, "it is declared and ordered by
+the Lords Spiritual and Temporal in Parliament assembled, that the
+office of High Steward on trials of peers upon impeachments is not
+necessary to the House of Peers, but that the Lords may proceed in such
+trials, if an High Steward is not appointed according to their humble
+desire."[26]
+
+To put the matter out of all doubt, and to remove all jealousy on the
+part of the Commons, the commission of the Lord High Steward was then
+altered.
+
+These rights, contended for by the Commons in their impeachments, and
+admitted by the Peers, were asserted in the proceedings preparatory to
+the trial of Lord Stafford, in which that long chain of uniform
+precedents with regard to the publicity of the Judges' opinions in
+trials begins.
+
+For these last citations, and some of the remarks, your Committee are
+indebted to the learned and upright Justice Foster. They have compared
+them with the Journals, and find them correct. The same excellent author
+proceeds to demonstrate that whatever he says of trials by impeachment
+is equally applicable to trials before the High Steward on indictment;
+and consequently, that there is no ground for a distinction, with regard
+to the public declaration of the Judges' opinions, founded on the
+inapplicability of either of these cases to the other. The argument on
+this whole matter is so satisfactory that your Committee has annexed it
+at large to their Report.[27] As there is no difference in fact between
+these trials, (especially since the act which provides that all the
+peers shall be summoned to the trial of a peer,) so there is no
+difference in the reason and principle of the publicity, let the matter
+of the Steward's jurisdiction, be as it may.
+
+
+PUBLICITY GENERAL.
+
+Your Committee do not find any positive law which binds the judges of
+the courts in Westminster Hall publicly to give a reasoned opinion from
+the bench, in support of their judgment upon matters that are stated
+before them. But the course hath prevailed from the oldest times. It
+hath been so general and so uniform, that it must be considered as the
+law of the land. It has prevailed, so far as we can discover, not only
+in all the courts which now exist, whether of law or equity, but in
+those which have been suppressed or disused, such as the Court of Wards
+and the Star Chamber. An author quoted by Rushworth, speaking of the
+constitution of that chamber, says,--"And so it was resolved _by the
+Judges, on reference made to them; and their opinion, after deliberate
+hearing, and view of former precedents, was published in open
+court_."[28] It appears elsewhere in the same compiler that all their
+proceedings were public, even in deliberating previous to judgment.
+
+The Judges in their reasonings have always been used to observe on the
+arguments employed by the counsel on either side, and on the authorities
+cited by them,--assigning the grounds for rejecting the authorities
+which they reject, or for adopting those to which they adhere, or for a
+different construction of law, according to the occasion. This
+publicity, not only of decision, but of deliberation, is not confined to
+their several courts, whether of law or equity, whether above or at Nisi
+Prius; but it prevails where they are assembled, in the Exchequer
+Chamber, or at Serjeants' Inn, or wherever matters come before the
+Judges collectively for consultation and revision. It seems to your
+Committee to be moulded in the essential frame and constitution of
+British judicature. Your Committee conceives that the English
+jurisprudence has not any other sure foundation, nor, consequently, the
+lives and properties of the subject any sure hold, but in the maxims,
+rules, and principles, and juridical traditionary line of decisions
+contained in the notes taken, and from time to time published, (mostly
+under the sanction of the Judges,) called Reports.
+
+In the early periods of the law it appears to your Committee that a
+course still better had been pursued, but grounded on the same
+principles; and that no other cause than the multiplicity of business
+prevented its continuance. "Of ancient time," says Lord Coke, "in cases
+of difficulties, either criminal or civil, _the reasons and causes_ of
+the judgment were set down _upon the record_, and so continued in the
+reigns of Ed. I. and Ed. II., and then there was no need of reports; but
+in the reign of Ed. III. (when the law was in its height) the causes and
+reasons of judgments, in respect of the multitude of them, are not set
+down in the record, but then _the great casuists and reporters of cases_
+(certain grave and sad men) published the cases, _and the reasons and
+causes of the judgments or resolutions_, which, from the beginning of
+the reign of Ed. III. and since, we have in print. But these also,
+though of great credit and excellent use in their kind, _yet far
+underneath the authority of the Parliament Rolls, reporting the acts,
+judgments, and resolutions of that highest court_."[29]
+
+Reports, though of a kind less authentic than the Year Books, to which
+Coke alludes, have continued without interruption to the time in which
+we live. It is well known that the elementary treatises of law, and the
+dogmatical treatises of English jurisprudence, whether they appear under
+the names of institutes, digests, or commentaries, do not rest on the
+authority of the supreme power, like the books called the Institute,
+Digest, Code, and authentic collations in the Roman law. With us
+doctrinal books of that description have little or no authority, other
+than as they are supported by the adjudged cases and reasons given at
+one time or other from the bench; and to these they constantly refer.
+This appears in Coke's Institutes, in Comyns's Digest, and in all books
+of that nature. To give judgment privately is to put an end to reports;
+and to put an end to reports is to put an end to the law of England. It
+was fortunate for the Constitution of this kingdom, that, in the
+judicial proceedings in the case of ship-money, the Judges did not then
+venture to depart from the ancient course. They gave and they argued
+their judgment in open court.[30] Their reasons were publicly given, and
+the reasons assigned for their judgment took away all its authority. The
+great historian, Lord Clarendon, at that period a young lawyer, has told
+us that the Judges gave as law from the bench what every man in the hall
+knew not to be law.
+
+This publicity, and this mode of attending the decision with its
+grounds, is observed not only in the tribunals where the Judges preside
+in a judicial capacity, individually or collectively, but where they are
+consulted by the Peers on the law in all _writs of error_ brought from
+below. In the opinion they give of the matter assigned as error, one at
+least of the Judges argues the questions at large. He argues them
+publicly, though in the Chamber of Parliament,--and in such a manner,
+that every professor, practitioner, or student of the law, as well as
+the parties to the suit, may learn the opinions of all the Judges of all
+the courts upon those points in which the Judges in one court might be
+mistaken.
+
+Your Committee is of opinion that nothing better could be devised by
+human wisdom than argued judgments publicly delivered for preserving
+unbroken the great traditionary body of the law, and for marking,
+whilst that great body remained unaltered, every variation in the
+application and the construction of particular parts, for pointing out
+the ground of each variation, and for enabling the learned of the bar
+and all intelligent laymen to distinguish those changes made for the
+advancement of a more solid, equitable, and substantial justice,
+according to the variable nature of human affairs, a progressive
+experience, and the improvement of moral philosophy, from those
+hazardous changes in any of the ancient opinions and decisions which may
+arise from ignorance, from levity, from false refinement, from a spirit
+of innovation, or from other motives, of a nature not more justifiable.
+
+Your Committee, finding this course of proceeding to be concordant with
+the character and spirit of our judicial proceeding, continued from time
+immemorial, supported by arguments of sound theory, and confirmed by
+effects highly beneficial, could not see without uneasiness, in this
+great trial for Indian offences, a marked innovation. Against their
+reiterated requests, remonstrances, and protestations, the opinions of
+the Judges were always taken secretly. Not only the constitutional
+publicity for which we contend was refused to the request and entreaty
+of your Committee, but when a noble peer, on the 24th day of June, 1789,
+did in open court declare that he would then propose some questions to
+the Judges in that place, and hoped to receive their answer openly,
+according to the approved good customs of that and of other courts, the
+Lords instantly put a stop to the further proceeding by an immediate
+adjournment to the Chamber of Parliament. Upon this adjournment, we find
+by the Lords' Journals, that the House, on being resumed, ordered, that
+"it should resolve itself into a Committee of the whole House, on
+Monday next, to take into consideration what is the proper manner of
+putting questions by the Lords to the Judges, and of their answering the
+same, in judicial proceedings." The House did thereon resolve itself
+into a committee, from which the Earl of Galloway, on the 29th of the
+same month, reported as follows:--"That the House has, in the trial of
+Warren Hastings, Esquire, proceeded in a regular course, in the manner
+of propounding their questions to the Judges in the Chamber of
+Parliament, and in receiving their answers to them in the same place."
+The resolution was agreed to by the Lords; but the protest as below[31]
+was entered thereupon, and supported by strong arguments.
+
+Your Committee remark, that this resolution states only, that the House
+had proceeded, in this secret manner of propounding questions to the
+Judges and of receiving their answers, during the trial, and on matters
+of debate between the parties, "in a regular course." It does not
+assert that another course would not have been _as_ regular. It does not
+state either judicial convenience, principle, or body of precedents for
+that _regular course_. No such body of precedents appear on the Journal,
+that we could discover. Seven-and-twenty, at least, in a regular series,
+are directly contrary to this regular course. Since the era of the 29th
+of June, 1789, no one question has been admitted to go publicly to the
+Judges.
+
+This determined and systematic privacy was the more alarming to your
+Committee, because the questions did not (except in that case) originate
+from the Lords for the direction of their own conscience. These
+questions, in some material instances, were not made or allowed by the
+parties at the bar, nor settled in open court, but differed materially
+from what your Managers contended was the true state of the question, as
+put and argued by them. They were such as the Lords thought proper to
+state for them. Strong remonstrances produced some alteration in this
+particular; but even after these remonstrances, several questions were
+made on statements which the Managers never made nor admitted.
+
+Your Committee does not know of any precedent before this, in which the
+Peers, on a proposal of the Commons, or of a less weighty person before
+their court, to have the cases publicly referred to the Judges, and
+their arguments and resolutions delivered in their presence, absolutely
+refused. The very few precedents of such private reference on trials
+have been made, as we have observed already, _sub silentio_, and without
+any observation from the parties. In the precedents we produce, the
+determination is accompanied with its reasons, and the publicity is
+considered as the clear, undoubted right of the parties.
+
+Your Committee, using their best diligence, have never been able to form
+a clear opinion upon the ground and principle of these decisions. The
+mere result, upon each case decided by the Lords, furnished them with no
+light, from any principle, precedent, or foregone authority of law or
+reason, to guide them with regard to the next matter of evidence which
+they had to offer, or to discriminate what matter ought to be urged or
+to be set aside: your Committee not being able to divine whether the
+particular evidence, which, upon a conjectural principle, they might
+choose to abandon, would not appear to this House, and to the judging
+world at large, to be admissible, and possibly decisive proof. In these
+straits, they had and have no choice, but either wholly to abandon the
+prosecution, and of consequence to betray the trust reposed in them by
+this House, or to bring forward such matter of evidence as they are
+furnished with from sure sources of authenticity, and which in their
+judgment, aided by the best advice they could obtain, is possessed of a
+moral aptitude juridically to prove or to illustrate the case which the
+House had given them, in charge.
+
+
+MODE OF PUTTING THE QUESTIONS.
+
+When your Committee came to examine into those private opinions of the
+Judges, they found, to their no small concern, that the mode both of
+putting the questions to the Judges, and their answers, was still more
+unusual and unprecedented than the privacy with which those questions
+were given and resolved.
+
+This mode strikes, as we apprehend, at the vital privileges of the
+House. For, with the single exception of the first question put to the
+Judges in 1788, the case being stated, the questions are raised
+directly, specifically, and by name, on those privileges: that is, _What
+evidence is it competent for the Managers of the House of Commons to
+produce?_ We conceive that it was not proper, _nor justified by a single
+precedent_, to refer to the Judges of the inferior courts any question,
+and still less for them to decide in their answer, of what is or is not
+competent for the House of Commons, or for any committee acting under
+their authority, to do or not to do, in any instance or respect
+whatsoever. This new and unheard-of course can have no other effect than
+to subject to the discretion of the Judges the Law of Parliament and the
+privileges of the House of Commons, and in a great measure the judicial
+privileges of the Peers themselves: any intermeddling in which on their
+part we conceive to be a dangerous and unwarrantable assumption of
+power. It is contrary to what has been declared by Lord Coke himself,
+in a passage before quoted, to be the duty of the Judges,--and to what
+the Judges of former times have confessed to be their duty, on occasions
+to which he refers in the time of Henry VI. And we are of opinion that
+the conduct of those sages of the law, and others their successors, who
+have been thus diffident and cautious in giving their opinions upon
+matters concerning Parliament, and particularly on the privileges of the
+House of Commons, was laudable in the example, and ought to be followed:
+particularly the principles upon which the Judges declined to give their
+opinions in the year 1614. It appears by the Journals of the Lords, that
+a question concerning the law relative to impositions having been put to
+the Judges, the proceeding was as follows. "Whether the Lords the Judges
+shall be heard deliver their opinion touching the point of impositions,
+before further consideration be had of answer to be returned to the
+lower House concerning the message from them lately received. Whereupon
+the number of the Lords requiring to hear the Judges' opinions by saying
+'_Content_' exceeding the others which said '_Non Content_,' the Lords
+the Judges, so desiring, were permitted to withdraw themselves into the
+Lord Chancellor's private rooms, where having remained awhile and
+advised together, they returned into the House, and, having taken their
+places, and standing discovered, did, by the mouth of the Lord
+Chief-Justice of the King's Bench, humbly desire to be forborne at this
+time, in this place, to deliver any opinion in this case, for many
+weighty and important reasons, which his Lordship delivered with great
+gravity and eloquence; concluding that himself and his brethren are upon
+particulars in judicial course to speak and judge between the King's
+Majesty and his people, and likewise between his Highness's subjects,
+and in no case to be disputants on any side."
+
+Your Committee do not find anything which, through inadvertence or
+design, had a tendency to subject the law and course of Parliament to
+the opinions of the Judges of the inferior courts, from that period
+until the 1st of James II. The trial of Lord Delamere for high treason
+was had by special commission before the Lord High Steward: it was
+before the act which directs that _all_ peers should be summoned to such
+trials. This was not a trial in full Parliament, in which case it was
+then contended for that the Lord High Steward was the judge of the law,
+presiding in the Court, but had no vote in the verdict, and that the
+Lords were triers only, and had no vote in the judgment of law. This was
+looked on as the course, where the trial was not in full Parliament, in
+which latter case there was no doubt but that the Lord High Steward made
+a part of the body of the triers, and that the whole House was the
+judge.[32] In this cause, after the evidence for the Crown had been
+closed, the prisoner prayed the Court to adjourn. The Lord High Steward
+doubted his power to take that step in that stage of the trial; and the
+question was, "Whether, the trial not being in full Parliament, when the
+prisoner is upon his trial, and evidence for the King is given, the
+Lords being (as it may be termed) charged with the prisoner, the Peers
+may separate for a time, which is the consequence of an adjournment?"
+The Lord High Steward doubted of his power to adjourn the Court. The
+case was evidently new, and his Grace proposed to have the opinion of
+the Judges upon it. The Judges in consequence offering to withdraw into
+the Exchequer Chamber, Lord Falconberg "insisted that the question
+concerned the privilege of the Peerage only, and conceived that _the
+Judges are not concerned to make any determination in that matter; and
+being such a point of privilege, certainly the inferior courts have no
+right to determine it_." It was insisted, therefore, that the Lords
+triers should retire with the Judges. The Lord High Steward thought
+differently, and opposed this motion; but finding the other opinion
+generally prevalent, he gave way, and the Lords triers retired, taking
+the Judges to their consult. When the Judges returned, they delivered
+their opinion in _open court_. Lord Chief-Justice Herbert spoke for
+himself and the rest of the Judges. After observing on the novelty of
+the case, with a temperate and becoming reserve with regard to the
+rights of Parliaments, he marked out the limits of the office of the
+inferior Judges on such occasions, and declared,--"_All that we, the
+Judges, can do is to acquaint your Grace and the noble Lords what the
+law is in the inferior courts in cases of the like nature_, and the
+reason of the law in those points, and _then leave the jurisdiction of
+the court to its proper judgment_." The Chief-Justice concluded his
+statement of the usage below, and his observations on the difference of
+the cases of a peer tried in full Parliament and by a special
+commission, in this manner:--"Upon the whole matter, my Lords, whether
+the Peers being judges in the one and not in the other instance alters
+the case, or whether the reason of the law in inferior courts why the
+jury are not permitted to separate until they have discharged
+themselves of their verdict may have any influence on this case, _where
+that reason seems to fail_, the prisoner being to be tried by men of
+unquestionable honor, _we cannot presume so far as to make any
+determination, in a case which is both new to us and of great
+consequence in itself_; but think it the proper way for _us_, having
+laid matters as we conceive them before your Grace and my Lords, _to
+submit the jurisdiction of your own court to your own determination_."
+
+It appears to your Committee, that the Lords, who stood against
+submitting the course of their high court to the inferior Judges, and
+that the Judges, who, with a legal and constitutional discretion,
+declined giving any opinion in this matter, acted as became them; and
+your Committee sees no reason why the Peers at this day should be less
+attentive to the rights of their court with regard to an exclusive
+judgment on their own proceedings or to the rights of the Commons acting
+as accusers for the whole commons of Great Britain in that court, or why
+the Judges should be less reserved in deciding upon any of these points
+of high Parliamentary privilege, than the Judges of that and the
+preceding periods. This present case is a proceeding in full Parliament,
+and not like the case under the commission in the time of James II., and
+still more evidently out of the province of Judges in the inferior
+courts.
+
+All the precedents previous to the trial of Warren Hastings, Esquire,
+seem to your Committee to be uniform. The Judges had constantly refused
+to give an opinion on any of the powers, privileges, or competencies of
+either House. But in the present instance your Committee has found, with
+great concern, a further matter of innovation. Hitherto the constant
+practice has been to put questions to the Judges but in the three
+following ways: as, 1st, A question of pure abstract law, without
+reference to any case, or merely upon an A.B. case stated to them; 2dly,
+To the legal construction of some act of Parliament; 3dly, To report the
+course of proceeding in the courts below upon an abstract case. Besides
+these three, your Committee knows not of a single example of any sort,
+during the course of any judicial proceeding at the bar of the House of
+Lords, whether the prosecution has been by indictment, by information
+from the Attorney-General, or by impeachment of the House of Commons.
+
+In the present trial, the Judges appear to your Committee not to have
+given their judgment on points of law, stated as such, but to have in
+effect tried the cause, in the whole course of it,--with one instance to
+the contrary.
+
+The Lords have stated no question of general law, no question on the
+construction of an act of Parliament, no question concerning the
+practice of the courts below. _They put the whole gross case and matter
+in question, with all its circumstances, to the Judges._ They have, _for
+the first time_, demanded of them what particular person, paper, or
+document ought or ought not to be produced before them by the Managers
+for the Commons of Great Britain: for instance, whether, under such an
+article, the Bengal Consultations of such a day, the examination of
+Rajah Nundcomar, and the like. The operation of this method is in
+substance not only to make the Judges masters of the whole process and
+conduct of the trial, but through that medium to transfer to them the
+ultimate judgment on the cause itself and its merits.
+
+The Judges attendant on the Court of Peers hitherto have not been
+supposed to know the particulars and minute circumstances of the cause,
+and must therefore be incompetent to determine upon those circumstances.
+The evidence taken, is not, of course, that we can find, delivered to
+them; nor do we find that in fact any order has been made for that
+purpose, even supposing that the evidence could at all regularly be put
+before them. They are present in court, not to hear the trial, but
+solely to advise in matter of law; they cannot take upon themselves to
+say anything about the Bengal Consultations, or to know anything of
+Rajah Nundcomar, of Kelleram, or of Mr. Francis, or Sir John Clavering.
+
+That the House may be the more fully enabled to judge of the nature and
+tendency of thus putting the question, _specifically, and on the gross
+case_, your Committee thinks fit here to insert one of those questions,
+reserving a discussion of its particular merits to another place. It was
+stated on the 22d of April, 1790, "On that day the Managers proposed to
+show that Kelleram fell into great balances with the East India Company,
+in consequence of his appointment." It is so stated in the printed
+Minutes (p. 1206). But the real tendency and gist of the proposition is
+not shown. However, the question was put, "Whether 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, Esquire, let the lands mentioned in the said
+sixth article of charge to Kelleram fell into arrear and was deficient;
+and whether, if proof were offered that the rent fell into arrear
+immediately after the letting, the evidence in that case would be
+competent?" The Judges answered, on the 27th of the said month, as
+follows:--"_It is not competent for the Managers for the House of
+Commons_ to give evidence upon the charge in the sixth article, to prove
+that the rent at which the defendant, Warren Hastings, let the lands
+[mentioned?] in the said sixth article of charge to Kelleram fell into
+arrear and was deficient."
+
+The House will observe that on the question two cases of competence were
+put: the first, on the competence of Managers for the House of Commons
+to give the evidence supposed to be offered by them, but which we deny
+to have been offered in the manner and for the purpose assumed in this
+question; the second is in a shape apparently more abstracted, and more
+nearly approaching to Parliamentary regularity,--on the competence of
+the evidence itself, in the case of a supposed circumstance being
+superadded. The Judges answered only the first, denying flatly the
+competence of the Managers. As to the second, the competence of the
+supposed evidence, they are profoundly silent. Having given this blow to
+our competence, about the other question, (which was more within their
+province,) namely, the competence of evidence on a case hypothetically
+stated, they give themselves no trouble. The Lords on that occasion
+rejected the whole evidence. On the face of the Judges' opinion it is a
+determination _on a case_, the trial of which was not with them, but it
+contains _no rule or principle of law_, to which alone it was their duty
+to speak.[33]
+
+These essential innovations tend, as your Committee conceives, to make
+an entire alteration in the constitution and in the purposes of the High
+Court of Parliament, and even to reverse the ancient relations between
+the Lords and the Judges. They tend wholly to take away from the Commons
+the benefit of making good their case before the proper judges, and
+submit this high inquest to the inferior courts.
+
+Your Committee sees no reason why, on the same principles and
+precedents, the Lords may not terminate their proceedings in this, and
+in all future trials, by sending the whole body of evidence taken before
+them, in the shape of a special verdict, to the Judges, and may not
+demand of them, whether they ought, on the whole matter, to acquit or
+condemn the prisoner; nor can we discover any cause that should hinder
+them [the Judges] from deciding on the accumulative body of the evidence
+as hitherto they have done in its parts, and from dictating the
+existence or non-existence of a misdemeanor or other crime in the
+prisoner as they think fit, without any more reference to principle or
+precedent of law than hitherto they have thought proper to apply in
+determining on the several parcels of this cause.
+
+Your Committee apprehends that very serious inconveniencies and
+mischiefs may hereafter arise from a practice in the House of Lords of
+considering itself as unable to act without the judges of the inferior
+courts, of implicitly following their dictates, of adhering with a
+literal precision to the very words of their responses, and putting them
+to decide on the competence of the Managers for the Commons, the
+competence of the evidence to be produced, who are to be permitted to
+appear, what questions are to be asked of witnesses, and indeed, parcel
+by parcel, on the whole of the gross case before them,--as well as to
+determine upon the order, method, and process of every part of their
+proceedings. The judges of the inferior courts are by law rendered
+independent of the Crown. But this, instead of a benefit to the subject,
+would be a grievance, if no way was left of producing a responsibility.
+If the Lords cannot or will not act without the Judges, and if (which
+God forbid!) the Commons should find it at any time hereafter necessary
+to impeach them before the Lords, this House would find the Lords
+disabled in their functions, fearful of giving any judgment on matter of
+law or admitting any proof of fact without them [the Judges]; and having
+once assumed the rule of proceeding and practice below as their rule,
+they must at every instant resort, for their means of judging, to the
+authority of those whom they are appointed to judge.
+
+Your Committee must always act with regard to men as they are. There are
+no privileges or exemptions from the infirmities of our common nature.
+We are sensible that all men, and without any evil intentions, will
+naturally wish to extend their own jurisdiction, and to weaken all the
+power by which they may be limited and controlled. It is the business of
+the House of Commons to counteract this tendency. This House had given
+to its Managers no power to abandon its privileges and the rights of its
+constituents. They were themselves as little disposed as authorized to
+make this surrender. They are members of this House, not only charged
+with the management of this impeachment, but partaking of a general
+trust inseparable from the Commons of Great Britain in Parliament
+assembled, one of whose principal functions and duties it is to be
+observant of the courts of justice, and to take due care that none of
+them, from the lowest to the highest, shall pursue new courses, unknown
+to the laws and constitution, of this kingdom, or to equity, sound legal
+policy, or substantial justice. Your Committee were not sent into
+Westminster Hall for the purpose of contributing in their persons, and
+under the authority of the House, to change the course or law of
+Parliament, which had continued unquestioned for at least four hundred
+years. Neither was it any part of their mission to suffer precedents to
+be established, with relation to the law and rule of evidence, which
+tended in their opinion to shut up forever all the avenues to justice.
+They were not to consider a rule of evidence as a means of concealment.
+They were not, without a struggle, to suffer any subtleties to prevail
+which would render a process in Parliament, not the terror, but the
+protection, of all the fraud and violence arising from the abuse of
+British power in the East. Accordingly, your Managers contended with all
+their might, as their predecessors in the same place had contended with
+more ability and learning, but not with more zeal and more firmness,
+against those dangerous innovations, as they were successively
+introduced: they held themselves bound constantly to protest, and in one
+or two instances they did protest, in discourses of considerable length,
+against those private, and, for what they could find, unargued judicial
+opinions, which must, as they fear, introduce by degrees the miserable
+servitude which exists where the law is uncertain or unknown.
+
+
+DEBATES ON EVIDENCE.
+
+The chief debates at the bar, and the decisions of the Judges, (which we
+find in all cases implicitly adopted, in all their extent and without
+qualification, by the Lords,) turned upon _evidence_. Your Committee,
+before the trial began, were apprised, by discourses which prudence did
+not permit them to neglect, that endeavors would be used to embarrass
+them in their proceedings by exceptions against evidence; that the
+judgments and opinions of the courts below would be resorted to on this
+subject; that there the rules of evidence were precise, rigorous, and
+inflexible; and that the counsel for the criminal would endeavor to
+introduce the same rules, with the same severity and exactness, into
+this trial. Your Committee were fully assured, and were resolved
+strenuously to contend, that no doctrine or rule of law, much less the
+practice of any court, ought to have weight or authority in Parliament,
+further than as such doctrine, rule, or practice is agreeable to the
+proceedings in Parliament, or hath received the sanction of approved
+precedent there, or is founded on the immutable principles of
+substantial justice, without which, your Committee readily agrees, no
+practice in any court, high or low, is proper or fit to be maintained.
+
+In this preference of the rules observed in the High Court of
+Parliament, preeminently superior to all the rest, there is no claim
+made which the inferior courts do not make, each with regard to itself.
+It is well known that the rules of proceedings in these courts vary, and
+some of them very essentially; yet the usage of each court is the law of
+the court, and it would be vain to object to any rule in any court,
+that it is not the rule of another court. For instance: as a general
+rule, the Court of King's Bench, on trials by jury, cannot receive
+depositions, but must judge by testimony _viva voce_. The rule of the
+Court of Chancery is not only not the same, but it is the reverse, and
+Lord Hardwicke ruled accordingly. "The constant and established
+proceedings of this Court," said this great magistrate, "are on written
+evidence, like the proceedings on the Civil and Canon Law. This is the
+course of the Court, and the course of the Court is the law of the
+Court."[34]
+
+Your Managers were convinced that one of the principal reasons for which
+this cause was brought into Parliament was the danger that in inferior
+courts their rule would be formed naturally upon their ordinary
+experience, and the exigencies of the cases which in ordinary course
+came before them. This experience, and the exigencies of these cases,
+extend little further than the concerns of a people comparatively in a
+narrow vicinage, a people of the same or nearly the same language,
+religion, manners, laws, and habits: with them an intercourse of every
+kind was easy.
+
+These rules of law in most cases, and the practice of the courts in all,
+could not be easily applicable to a people separated from Great Britain
+by a very great part of the globe,--separated by manners, by principles
+of religion, and of inveterate habits as strong as nature itself, still
+more than by the circumstance of local distance. Such confined and
+inapplicable rules would be convenient, indeed, to oppression, to
+extortion, bribery, and corruption, but ruinous to the people, whose
+protection is the true object of all tribunals and of all their rules.
+Even English judges in India, who have been sufficiently tenacious of
+what they considered as the rules of English courts, were obliged in
+many points, and particularly with regard to evidence, to relax very
+considerably, as the civil and politic government has been obliged to do
+in several other cases, on account of insuperable difficulties arising
+from a great diversity of manners, and from what may be considered as a
+diversity even in the very constitution of their minds,--instances of
+which your Committee will subjoin in a future Appendix.
+
+Another great cause why your Committee conceived this House had chosen
+to proceed in the High Court of Parliament was because the inferior
+courts were habituated, with very few exceptions, to try men for the
+abuse only of their individual and natural powers, which can extend but
+a little way.[35] Before them, offences, whether of fraud or violence or
+both, are, for much the greater part, charged upon persons of mean and
+obscure condition. Those unhappy persons are so far from being supported
+by men of rank and influence, that the whole weight and force of the
+community is directed against them. In this case, they are in general
+objects of protection as well as of punishment; and the course perhaps
+ought, as it is _commonly_ said to be, not to suffer anything to be
+applied to their conviction beyond what the strictest rules will permit.
+But in the cause which your Managers have in charge the circumstances
+are the very reverse to what happens in the cases of mere personal
+delinquency which come before the [inferior] courts. These courts have
+not before them persons who act, and who justify their acts, by the
+nature of a despotical and arbitrary power. The abuses stated in our
+impeachment are not those of mere individual, natural faculties, but the
+abuses of civil and political authority. The offence is that of one who
+has carried with him, in the perpetration of his crimes, whether of
+violence or of fraud, the whole force of the state,--who, in the
+perpetration and concealment of offences, has had the advantage of all
+the means and powers given to government for the detection and
+punishment of guilt and for the protection of the people. The people
+themselves, on whose behalf the Commons of Great Britain take up this
+remedial and protecting prosecution, are naturally timid. Their spirits
+are broken by the arbitrary power usurped over them, and claimed by the
+delinquent as his law. They are ready to flatter the power which they
+dread. They are apt to look for favor [from their governors] by covering
+those vices in the predecessor which they fear the successor may be
+disposed to imitate. They have reason to consider complaints as means,
+not of redress, but of aggravation to their sufferings; and when they
+shall ultimately hear that the nature of the British laws and the rules
+of its tribunals are such as by no care or study either they, or even
+the Commons of Great Britain, who take up their cause, can comprehend,
+but which in effect and operation leave them unprotected, and render
+those who oppress them secure in their spoils, they must think still
+worse of British justice than of the arbitrary power of the Company's
+servants which hath been exercised to their destruction. They will be
+forever, what for the greater part they have hitherto been, inclined to
+compromise with the corruption of the magistrates, as a screen against
+that violence from which the laws afford them no redress.
+
+For these reasons your Committee did and do strongly contend that the
+Court of Parliament ought to be open with great facility to the
+production of all evidence, except that which the precedents of
+Parliament teach them authoritatively to reject, or which hath no sort
+of natural aptitude directly or circumstantially to prove the case. They
+have been and are invariably of opinion that the Lords ought _to
+enlarge, and not to contrast, the rules of evidence, according to the
+nature and difficulties of the case_, for redress to the injured, for
+the punishment of oppression, for the detection of fraud,--and above
+all, to prevent, what is the greatest dishonor to all laws and to all
+tribunals, the failure of justice. To prevent the last of these evils
+all courts in this and all countries have constantly made all their
+maxims and principles concerning testimony to conform; although such
+courts have been bound undoubtedly by stricter rules, both of form and
+of prescript cases, than the sovereign jurisdiction exercised by the
+Lords on the impeachment of the Commons ever has been or ever ought to
+be. Therefore your Committee doth totally reject any rules by which the
+practice of any inferior court is affirmed as a directory guide to an
+higher, especially where the forms and the powers of the judicature are
+different, and the objects of judicial inquiry are not the same.
+
+Your Committee conceives that the trial of a cause is not in the
+arguments or disputations of the prosecutors and the counsel, but in
+_the evidence_, and that to refuse evidence is to refuse to hear the
+cause: nothing, therefore, but the most clear and weighty reasons ought
+to preclude its production. Your Committee conceives, that, when
+evidence on the face of it relevant, that is, connected with the party
+and the charge, was denied to be competent, _the burden lay upon those
+who opposed it_ to set forth the authorities, whether of positive
+statute, known recognized maxims and principles of law, passages in an
+accredited institute, code, digest, or systematic treatise of laws, or
+some adjudged cases, wherein, the courts have rejected evidence of that
+nature. No such thing ever (except in one instance, to which we shall
+hereafter speak) was produced at the bar, nor (that we know of) produced
+by the Lords in their debates, or by the Judges in the opinions by them
+delivered. Therefore, for anything which as yet appears to your
+Committee to the contrary, these responses and decisions were, in many
+of the points, not the determinations of any law whatsoever, but mere
+arbitrary decrees, to which we could not without solemn protestation,
+submit.
+
+Your Committee, at an early period, and frequently since the
+commencement of this trial, have neglected no means of research which
+might afford them information concerning these supposed strict and
+inflexible rules of proceeding and of evidence, which, appeared to them,
+destructive of all the means and ends of justice: and, first, they
+examined carefully the Rolls and Journals of the House of Lords, as also
+the printed trials of cases before that court.
+
+Your Committee finds but one instance, in the whole course of
+Parliamentary impeachments, in which evidence offered by the Commons has
+been rejected on the plea of inadmissibility or incompetence. This was
+in the case of Lord Strafford's trial; when the copy of a warrant (the
+same not having any attestation to authenticate it as a true copy) was,
+on deliberation, not admitted,--and your Committee thinks, as the case
+stood, with reason. But even in this one instance the Lords seemed to
+show a marked anxiety not to narrow too much the admissibility of
+evidence; for they confined their determination "to this individual
+case," as the Lord Steward reported their resolution; and he
+adds,--"They conceive this could be no impediment or failure in the
+proceeding, because the truth and verity of it would depend on the first
+general power given to execute it, which they who manage the evidence
+for the Commons say they could prove."[36] Neither have objections to
+evidence offered by the prisoner been very frequently made, nor often
+allowed when made. In the same case of Lord Strafford, two books
+produced by his Lordship, without proof by whom they were written, were
+rejected, (and on a clear principle,) "as being private books, and no
+records."[37] On both these occasions, the questions were determined by
+the Lords alone, without any resort to the opinions of the Judges. In
+the impeachments of Lord Stafford, Dr. Sacheverell, and Lord Wintoun, no
+objection to evidence appears in the Lords' Journals to have been
+pressed, and not above one taken, which was on the part of the Managers.
+
+Several objections were, indeed, taken to evidence in Lord
+Macclesfield's trial.[38] They were made on the part of the Managers,
+except in two instances, where the objections were made by the witnesses
+themselves. They were all determined (those started by the Managers in
+their favor) by the Lords themselves, without any reference to the
+Judges. In the discussion of one of them, a question was stated for the
+Judges concerning the law in a similar case upon an information in the
+court below; but it was set aside by the previous question.[39]
+
+On the impeachment of Lord Lovat, no more than one objection to evidence
+was taken by the Managers, against which Lord Lovat's counsel were not
+permitted to argue. Three objections on the part of the prisoner were
+made to the evidence offered by the Managers, but all without
+success.[40] The instances of similar objections in Parliamentary trials
+of peers on indictments are too few and too unimportant to require being
+particularized;--one, that in the case of Lord Warwick, has been
+already stated.
+
+The principles of these precedents do not in the least affect any case
+of evidence which your Managers had to support. The paucity and
+inapplicability of instances of this kind convince your Committee that
+the Lords have ever used some latitude and liberality in all the means
+of bringing information before them: nor is it easy to conceive, that,
+as the Lords are, and of right ought to be, judges of law and fact, many
+cases should occur (except those where a personal _viva voce_ witness is
+denied to be competent) in which a judge, possessing an entire judicial
+capacity, can determine by anticipation what is good evidence, and what
+not, before he has heard it. When he has heard it, of course he will
+judge what weight it is to have upon his mind, or whether it ought not
+entirely to be struck out of the proceedings.
+
+Your Committee, always protesting, as before, against the admission of
+any law, foreign or domestic, as of authority in Parliament, further
+than as written reason and the opinion of wise and informed men, has
+examined into the writers on the Civil Law, ancient and more recent, in
+order to discover what those rules of evidence, in any sort applicable
+to criminal cases, were, which were supposed to stand in the way of the
+trial of offences committed in India.
+
+They find that the term Evidence, _Evidentia_, from whence ours is
+taken, has a sense different in the Roman law from what it is understood
+to bear in the English jurisprudence; the term most nearly answering to
+it in the Roman being _Probatio_, Proof, which, like the term
+_Evidence_, is a generic term, including everything by which a doubtful
+matter may be rendered more certain to the judge: or, as Gilbert
+expresses it, every matter is evidence which amounts to the proof of the
+point in question.[41]
+
+On the general head of Evidence, or Proof, your Committee finds that
+much has been written by persons learned in the Roman law, particularly
+in modern times,--and that many attempts have been made to reduce to
+rules the principles of evidence or proof, a matter which by its very
+nature seems incapable of that simplicity, precision, and generality
+which are necessary to supply the matter or to give the form to a rule
+of law. Much learning has been employed on the doctrine of indications
+and presumptions in their books,--far more than is to be found in our
+law. Very subtle disquisitions were made on all matters of jurisprudence
+in the times of the classical Civil Law, by the followers of the Stoic
+school.[42] In the modern school of the same law, the same course was
+taken by Bartolus, Baldus, and the Civilians who followed them, before
+the complete revival of literature.[43] All the discussions to be found
+in those voluminous writings furnish undoubtedly an useful exercise to
+the mind, by methodizing the various forms in which one set of facts or
+collection of facts, or the qualities or demeanor of persons,
+reciprocally influence each other; and by this course of juridical
+discipline they add to the readiness and sagacity of those who are
+called to plead or to judge. But as human affairs and human actions are
+not of a metaphysical nature, but the subject is concrete, complex, and
+moral, they cannot be subjected (without exceptions which reduce it
+almost to nothing) to any certain rule. Their rules with regard to
+competence were many and strict, and our lawyers have mentioned it to
+their reproach. "The Civilians," it has been observed, "differ in
+nothing more than admitting evidence; for they reject _histriones_, &c.,
+and whole tribes of people."[44] But this extreme rigor as to
+competency, rejected by our law, is not found to extend to the _genus_
+of evidence, but only to a particular _species_,--personal witnesses.
+Indeed, after all their efforts to fix these things by positive and
+inflexible maxims, the best Roman lawyers, in their best ages, were
+obliged to confess that every case of evidence rather formed its own
+rule than that any rule could be adapted to every case. The best
+opinions, however, seem to have reduced the admissibility of witnesses
+to a few heads. "For if," said Callistratus, in a passage preserved to
+us in the Digest, "the testimony is free from suspicion, either on
+account of the quality of the _person_, namely, that he is in a
+reputable situation, or for _cause_, that is to say, that the testimony
+given is not for reward nor favor nor for enmity, such a witness is
+admissible." This first description goes to _competence_, between which
+and _credit_ Lord Hardwicke justly says the discrimination is very nice.
+The other part of the text shows their anxiety to reduce credibility
+itself to a fixed rule. It proceeds, therefore,--"His Sacred Majesty,
+Hadrian, issued a rescript to Vivius Varus, Lieutenant of Cilicia, to
+this effect, that he who sits in judgment is the most capable of
+determining what credit is to be given to witnesses." The words of the
+letter of rescript are as follow:--"You ought best to know what credit
+is to be given to witnesses,--who, and of what dignity, and of what
+estimation they are,--whether they seem to deliver their evidence with
+simplicity and candor, whether they seem to bring a formed and
+premeditated discourse, or whether on the spot they give probable matter
+in answer to the questions that are put to them." And there remains a
+rescript of the same prince to Valerius Verus, on the bringing out the
+credit of witnesses. This appears to go more to the _general_ principles
+of evidence. It is in these words:--"What evidence, and in what measure
+or degree, shall amount to proof in each case can be defined in no
+manner whatsoever that is sufficiently certain. For, though not always,
+yet frequently, the truth of the affair may appear without any matter of
+public record. In some cases the number of the witnesses, in others
+their dignity and authority, is to be weighed; in others, concurring
+public fame tends to confirm the credit of the evidence in question.
+This alone I am able, and in a few words, to give you as my
+determination: that you ought not too readily to bind yourself to try
+the cause upon any one description of evidence; but you are to estimate
+by your own discretion what you ought to credit, or what appears to you
+not to be established by proof sufficient."[45]
+
+The modern writers on the Civil Law have likewise much matter on this
+subject, and have introduced a strictness with regard to personal
+testimony which our particular jurisprudence has not thought it at all
+proper to adopt. In others we have copied them more closely. They divide
+Evidence into two parts, in which they do not differ from the ancients:
+1st, What is Evidence, or Proof, by itself; 2dly, What is Presumption,
+"which is a probable conjecture, from a reference to something which,
+coming from marks and tokens ascertained, shall be taken for truth,
+until some other shall be adduced." Again, they have labored
+particularly to fix rules for presumptions, which they divide into, 1.
+Violent and necessary, 2. Probable, 3. and lastly, Slight and rash.[46]
+But finding that this head of Presumptive Evidence (which makes so large
+a part with them and with us in the trial of all causes, and
+particularly criminal causes) is extremely difficult to ascertain,
+either with regard to what shall be considered as exclusively creating
+any of these three degrees of presumption, or what facts, and how
+proved, and what marks and tokens, may serve to establish them, even
+those Civilians whose character it is to be subtle to a fault have been
+obliged to abandon the task, and have fairly confessed that the labors
+of writers to fix rules for these matters have been vain and fruitless.
+One of the most able of them[47] has said, "that the doctors of the law
+have written nothing of value concerning presumptions; nor is the
+subject-matter such as to be reduced within the prescribed limit of any
+certain rules. In truth, it is from the actual existing case, and from
+the circumstances of the persons and of the business, that we ought
+(under the guidance of an incorrupt judgment of the mind, which is
+called an equitable discretion) to determine what presumptions or
+conjectural proofs are to be admitted as rational or rejected as false,
+or on which the understanding can pronounce nothing, either the one way
+or the other."
+
+It is certain, that, whatever over-strictness is to be found in the
+older writers on this law with regard to evidence, it chiefly related to
+the mere competency of witnesses; yet even here the rigor of the Roman
+lawyers relaxed on the necessity of the case. Persons who kept houses of
+ill-fame were with them incompetent witnesses; yet among the maxims of
+that law the rule is well known of _Testes lupanares in re lupanari_.
+
+In ordinary cases, they require two witnesses to prove a fact; and
+therefore they held, "that, if there be but one witness, and no probable
+grounds of presumption of some kind (_nulla argumenta_), that one
+witness is by no means to be heard"; and it is not inelegantly said in
+that case, _Non jus deficit, sed probatio_, "The failure is not in the
+law, but in the proof." But if other grounds of presumption appear, one
+witness is to be heard: "for it is not necessary that one crime should
+be established by one sort of proof only, as by witnesses, or by
+documents, or by presumptions; all the modes of evidence may be so
+conjoined, that, where none of them alone would affect the prisoner, all
+the various concurrent proofs should overpower him like a storm of
+hail." This is held particularly true in cases where crimes are secret,
+and detection difficult. The necessity of detecting and punishing such
+crimes superseded, in the soundest authors, this theoretic aim at
+perfection, and obliged technical science to submit to practical
+expedience. "_In re criminali_," said the rigorists, "_probationes
+debent esse evidentes et luce meridiana clariores_": and so undoubtedly
+it is in offences which admit such proof. But reflection taught them
+that even their favorite rules of incompetence must give way to the
+exigencies of distributive justice. One of the best modern writers on
+the Imperial Criminal Law, particularly as practised in Saxony,
+(Carpzovius,) says,--"This alone I think it proper to remark, that even
+incompetent witnesses are sometimes admitted, if otherwise the truth
+cannot be got at; and this particularly in facts and crimes which are of
+difficult proof"; and for this doctrine he cites Farinacius, Mascardus,
+and other eminent Civilians who had written on Evidence. He proceeds
+afterwards,--"However, this is to be taken with a caution, that the
+impossibility of otherwise discovering the truth is not construed from
+hence, that other witnesses were not actually concerned, but that, from
+the nature of the crime, or from regard had to the place and time, other
+witnesses could not be present." Many other passages from the same
+authority, and from others to a similar effect, might be added; we
+shall only remark shortly, that Gaill, a writer on the practice of that
+law the most frequently cited in our own courts, gives the rule more in
+the form of a maxim,--"that the law is contented with such proof as
+_can_ be made, if the subject _in its nature_ is difficult of
+proof."[48] And the same writer, in another passage, refers to another
+still more general maxim, (and a sound maxim it is,) that the power and
+means of proof ought not to be narrowed, but enlarged, that the truth
+may not be concealed: "_Probationum facultas non angustari, sed ampliari
+debeat, ne veritas occultetur._"[49]
+
+On the whole, your Committee can find nothing in the writings of the
+learned in this law, any more than they could discover anything in the
+Law of Parliament, to support any one of the determinations given by the
+Judges, and adopted by the Lords, against the evidence which your
+Committee offered, whether direct and positive, or merely (as for the
+greater part it was) circumstantial, and produced as a ground to form
+legitimate presumption against the defendant: nor, if they were to admit
+(which they do not) this Civil Law to be of authority in furnishing any
+rule in an impeachment of the Commons, more than as it may occasionally
+furnish a principle of reason on a new or undetermined point, do they
+find any rule or any principle, derived from that law, which could or
+ought to have made us keep back the evidence which we offered; on the
+contrary, we rather think those rules and principles to be in agreement
+with our conduct.
+
+As to the Canon Law, your Committee, finding it to have adopted the
+Civil Law with no very essential variation, does not feel it necessary
+to make any particular statement on that subject.
+
+Your Committee then came to examine into the authorities in the English
+law, both as it has prevailed for many years back, and as it has been
+recently received in our courts below. They found on the whole the rules
+rather less strict, more liberal, and less loaded with positive
+limitations, than in the Roman law. The origin of this latitude may
+perhaps be sought in this circumstance, which we know to have relaxed
+the rigor of the Roman law: courts in England do not judge upon
+evidence, _secundum allegata et probata_, as in other countries and
+under other laws they do, but upon verdict. By a fiction of law they
+consider the jury as supplying, in some sense, the place of testimony.
+One witness (and for that reason) is allowed sufficient to convict, in
+cases of felony, which in other laws is not permitted.
+
+In ancient times it has happened to the law of England (as in pleading,
+so in matter of evidence) that a rigid strictness in the application of
+technical rules has been more observed than at present it is. In the
+more early ages, as the minds of the Judges were in general less
+conversant in the affairs of the world, as the sphere of their
+jurisdiction was less extensive, and as the matters which came before
+them were of less variety and complexity, the rule being in general
+right, not so much inconvenience on the whole was found from a literal
+adherence to it as might have arisen from an endeavor towards a liberal
+and equitable departure, for which further experience, and a more
+continued cultivation of equity as a science, had not then so fully
+prepared them. In those times that judicial policy was not to be
+condemned. We find, too, that, probably from the same cause, most of
+their doctrine leaned towards the restriction; and the old lawyers being
+bred, according to the then philosophy of the schools, in habits of
+great subtlety and refinement of distinction, and having once taken that
+bent, very great acuteness of mind was displayed in maintaining every
+rule, every maxim, every presumption of law creation, and every fiction
+of law, with a punctilious exactness: and this seems to have been the
+course which laws have taken in every nation.[50] It was probably from
+this rigor, and from a sense of its pressure, that, at an early period
+of our law, far more causes of criminal jurisdiction were carried into
+the House of Lords and the Council Board, where laymen were judges, than
+can or ought to be at present.
+
+As the business of courts of equity became more enlarged and more
+methodical,--as magistrates, for a long series of years, presided in the
+Court of Chancery, who were not bred to the Common Law,--as commerce,
+with its advantages and its necessities, opened a communication more
+largely with other countries,--as the Law of Nature and Nations (always
+a part of the law of England) came to be cultivated,--as an increasing
+empire, as new views and new combinations of things were opened,--this
+antique rigor and overdone severity gave way to the accommodation of
+human concerns, for which rules were made, and not human concerns to
+bend to them.
+
+At length, Lord Hardwicke, in one of the cases the most solemnly argued,
+that has been in man's memory, with the aid of the greatest learning at
+the bar, and with the aid of all the learning on the bench, both bench
+and bar being then supplied with men of the first form, declared from
+the bench, and in concurrence with the rest of the Judges, and with the
+most learned of the long robe, the able council on the side of the old
+restrictive principles making no reclamation, "that the judges and sages
+of the law have laid it down that there is but ONE general rule of
+evidence,--_the best that the nature of the case will admit_."[51] This,
+then, the master rule, that governs all the subordinate rules, does in
+reality subject itself and its own virtue and authority _to the nature
+of the case_, and leaves no rule at all of an independent, abstract, and
+substantive quality. Sir Dudley Ryder, (then Attorney-General,
+afterwards Chief-Justice,) in his learned argument, observed, that "it
+is extremely proper that there should be _some_ general rules in
+relation to evidence; but _if exceptions were not allowed to them, it
+would be better to demolish all the general rules_. There is no general
+rule without exception that we know of but this,--that _the best
+evidence shall be admitted which the nature of the case will afford_. I
+will show that rules as general as this are broke in upon _for the sake
+of allowing evidence_. There is no rule that seems more binding than
+that a man shall not be admitted an evidence in his own case, and yet
+the Statute of Hue and Cry is an exception. A man's books are allowed
+to be evidence, or, which is in substance the same, his servant's books,
+_because the nature of the case requires it_,--as in the case of a
+brewer's servants. Another general rule, that a wife cannot be witness
+against her husband, has been broke in upon in cases of treason. Another
+exception to the general rule, that a man may not be examined without
+oath,--the last words of a dying man are given in evidence in the case
+of murder." Such are the doctrines of this great lawyer.
+
+Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with
+strict rules of evidence. "Such evidence," [he says,] "is to be admitted
+as the _necessity_ of the case will allow of: as, for instance, a
+marriage at Utrecht, certified under the seal of the minister there, and
+of the said town, and that they cohabited together as man and wife, was
+held to be sufficient proof that they were married." This learned judge
+(commenting upon Lord Coke's doctrine, and Serjeant Hawkins's after him,
+that the oaths of Jews and pagans were not to be taken) says, "that this
+notion, though advanced by so great a man, is contrary to religion,
+common sense, and common humanity, and I think the devils, to whom he
+has delivered them, could not have suggested anything worse."
+Chief-Justice Willes, admitting Lord Coke to be a great lawyer, then
+proceeds in very strong terms, and with marks of contempt, to condemn
+"_his narrow notions_"; and he treats with as little respect or decorum
+the ancient authorities referred to in defence of such notions.
+
+The principle of the departure from those rules is clearly fixed by Lord
+Hardwicke; he lays it down as follows:--"The first ground judges have
+gone upon, in departing from strict rules, is _absolute strict
+necessity_; 2dly, a _presumed_ necessity." Of the first he gives these
+instances:--"In the case of writings subscribed by witnesses, if all are
+dead, the proof of one of their hands is sufficient to establish the
+deed. Where an original is lost, a copy may be admitted; if no copy,
+then a proof by witnesses who have _heard_ the deed: and yet it is a
+thing the law abhors, to admit the memory of man for evidence." This
+enlargement through two stages of proof, both of them contrary to the
+rule of law, and both abhorrent from its principles, are by this great
+judge accumulated upon one another, and are admitted from _necessity_,
+to accommodate human affairs, and to prevent that which courts are by
+every possible means instituted to prevent,--A FAILURE OF JUSTICE. And
+this necessity is not confined within the strict limits of physical
+causes, but is more lax, and takes in _moral and even presumed and
+argumentative necessity_, a necessity which is in fact nothing more than
+a great degree of expediency. The law creates a fictitious necessity
+against the rules of evidence in favor of the convenience of trade: an
+exception which on a similar principle had before been admitted in the
+Civil Law, as to mercantile causes, in which the books of the party were
+received to give full effect to an insufficient degree of proof, called,
+in the nicety of their distinctions, a _semiplena probatio_.[52]
+
+But to proceed with Lord Hardwicke. He observes, that "a tradesman's
+books" (that is, the acts of the party interested himself) "are admitted
+as evidence, though no _absolute necessity_, but by reason of a
+_presumption_ of necessity only, _inferred_ from the nature of
+commerce." "No rule," continued Lord Hardwicke, "can be more settled
+than that testimony is not to be received but upon oath"; but he lays it
+down, that an oath itself may be dispensed with. "There is another
+instance," says he, "where the lawful oath may be dispensed with,--where
+our courts admit evidence for the Crown without oath."
+
+In the same discussion, the Chief-Baron (Parker) cited cases in which
+_all_ the rules of evidence had given way. "There is not a more general
+rule," says he, "than that hearsay cannot be admitted, nor husband and
+wife as witnesses against each other; and yet it is _notorious_ that
+from necessity they have been allowed,--not an _absolute_ necessity, but
+a _moral_ one."
+
+It is further remarkable, in this judicial argument, that exceptions are
+allowed not only to rules of evidence, but that the rules of evidence
+themselves are not altogether the same, where the subject-matter varies.
+The Judges have, to facilitate justice, and to favor commerce, even
+adopted the rules of _foreign_ laws. They have taken for granted, and
+would not suffer to be questioned, the regularity and justice of the
+proceedings of foreign courts; and they have admitted them as evidence,
+not only of the fact of the decision, but of the right as to its
+legality. "Where there are foreign parties interested, and in commercial
+matters, the rules of evidence are not quite the same as in other
+instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A
+feme covert is not a lawful witness against her husband, except in cases
+of treason, but has been admitted in civil cases.[53] The testimony of
+a public notary is evidence by the law of France: contracts are made
+before a public notary, and no other witness necessary. I should think
+it would be no doubt at all, if it came in question here, whether this
+would be a valid contract, but a testimony from persons of that credit
+and reputation would be received as a very good proof in foreign
+transactions, and would authenticate the contract."[54]
+
+These cases show that courts always govern themselves by these rules in
+cases of foreign transactions. To this principle Lord Hardwicke accords;
+and enlarging the rule of evidence by the nature of the subject and the
+exigencies of the case, he lays it down, "that it is a common and
+_natural_ presumption, that persons of the Gentoo religion should be
+principally apprised of facts and transactions in their own country. As
+the English have only a factory in this country, (for it is in the
+empire of the Great Mogul,) if we should admit this evidence [Gentoo
+evidence on a Gentoo oath], it would be agreeable to the genius of the
+law of England." For this he cites the proceedings of our Court of
+Admiralty, and adopts the author who states the precedent, "that this
+Court will give credit to the sentence of the Court of Admiralty in
+France, and take it to be according to right, and will not examine their
+proceedings: for it would be found very inconvenient, if one kingdom
+should, by peculiar laws, correct the judgments and proceedings of
+another kingdom." Such is the genius of the law of England, that these
+two principles, of the general moral necessities of things, and the
+nature of the case, overrule every other principle, even those rules
+which seem the very strongest. Chief-Baron Parker, in answer to an
+objection made against the infidel deponent, "that the plaintiff ought
+to have shown that he could not have the evidence of Christians," says,
+"that, repugnant to natural justice, in the Statute of Hue and Cry, the
+robbed is admitted to be witness of the robbery, as _a moral or presumed
+necessity is sufficient_." The same learned magistrate, pursuing his
+argument in favor of liberality, in opening and enlarging the avenues to
+justice, does not admit that "the authority of one or two cases" is
+valid against reason, equity, and convenience, the vital principles of
+the law. He cites Wells _v._ Williams, 1 Raymond, 282, to show that the
+necessity of trade has mollified the too rigorous rules of the old law,
+in their restraint and discouragement of aliens. "A Jew may sue at
+_this_ day, but _heretofore he could not_, for then they were looked
+upon as enemies, but now commerce has taught the world more humanity;
+and therefore held that an alien enemy, commorant here by the license of
+the King, and under his protection, may maintain a debt upon a bond,
+though he did not come with safe-conduct." So far Parker, concurring
+with Raymond. He proceeds:--"It was objected by the defendant's counsel,
+that this is a novelty, and that what never has been done ought not to
+be done." The answer is, "_The law of England is not confined to
+particular cases, but is much more governed by reason than by any one
+case whatever._ The true rule is laid down by Lord Vaughan, fol. 37,
+38. 'Where the law,' saith he, 'is _known and clear_, the Judges must
+determine as the law is, without regard to the inequitableness or
+inconveniency: these defects, if they happen in the law, can only be
+remedied by Parliament. But where the law is doubtful and not clear, the
+Judges ought to interpret the law to be as is most consonant to equity,
+and what is least inconvenient.'"
+
+These principles of equity, convenience, and natural reason Lord
+Chief-Justice Lee considered in the same ruling light, not only as
+guides in matter of interpretation concerning law in general, but in
+particular as controllers of the whole law of evidence, which, being
+artificial, and made for convenience, is to be governed by that
+convenience for which it is made, and is to be wholly subservient to the
+stable principles of substantial justice, "I do apprehend," said that
+Chief-Justice, "that the rules of evidence are to be considered as
+_artificial_ rules, framed by men for _convenience in courts of
+justice_. This is a case that ought to be looked upon in that light; and
+I take it that considering evidence in this way [viz. according to
+natural justice] _is agreeable to the genius of the law of England_."
+
+The sentiments of Murray, then Solicitor-General, afterwards Lord
+Mansfield, are of no small weight in themselves, and they are authority
+by being judicially adopted. His ideas go to the growing melioration of
+the law, by making its liberality keep pace with the demands of justice
+and the actual concerns of the world: not restricting the infinitely
+diversified occasions of men and the rules of natural justice within
+artificial circumscriptions, but conforming our jurisprudence to the
+growth of our commerce and of our empire. This enlargement of our
+concerns he appears, in the year 1744, almost to have foreseen, and he
+lived to behold it. "The arguments on the other side," said that great
+light of the law, (that is, arguments against admitting the testimony in
+question from the novelty of the case,) "prove nothing. Does it follow
+from thence, that no witnesses can be examined in a case that never
+specifically existed before, or that an action cannot be brought in a
+case that never happened before? _Reason_ (being stated to be the first
+ground of all laws by the author of the book called 'Doctor and
+Student') must determine the case. Therefore the only question is,
+Whether, _upon principles of reason, justice, and convenience_, this
+witness be admissible? Cases in law depend upon the _occasions_ which
+gave rise to them. All occasions do not arise at once: now a particular
+species of Indians appears; hereafter another species of Indians may
+arise. A statute can seldom take in all cases. Therefore the Common Law,
+that works itself pure by rules drawn from the fountain of justice, is
+for this reason superior to an act of Parliament."[55]
+
+From the period of this great judgment to the trial of Warren Hastings,
+Esquire, the law has gone on continually working itself pure (to use
+Lord Mansfield's expression) by rules drawn from the fountain of
+justice. "General rules," said the same person, when he sat upon the
+bench, "are wisely established for attaining justice with ease,
+certainty, and dispatch; but the great end of them being _to do
+justice_, the Court will see that it be really obtained. The courts have
+been more liberal of late years in their determinations, and have more
+endeavored to attend to the _real justice_ of the case than formerly."
+On another occasion, of a proposition for setting aside a verdict, he
+said, "This seems to be the true way to come at justice, and what we
+therefore ought to do; for the true text is, _Boni judicis est ampliare
+justitiam_ (not _jurisdictionem_, as has been often cited)."[56] In
+conformity to this principle, the supposed rules of evidence have, in
+late times and judgments, instead of being drawn to a greater degree of
+strictness, been greatly relaxed.
+
+"_All evidence is according to the subject-matter to which it is
+applied._ There is a great deal of difference between length of time
+that operates as a bar to a claim and that which is used only by way of
+evidence. Length of time used merely by way of evidence may be left to
+the consideration of the jury, to be credited or not, or to draw their
+inferences one way or the other, according to circumstances. _I do not
+know an instance in which proof may not be supplied._"[57] In all cases
+of evidence Lord Mansfield's maxim was, _to lean to admissibility_,
+leaving the objections which were made to competency to go to credit,
+and to be weighed in the minds of the jury after they had heard it.[58]
+In objections to wills, and to the testimony of witnesses to them, he
+thought "it clear that the Judges ought to lean _against_ objections to
+the formality."[59]
+
+Lord Hardwicke had before declared, with great truth, "that the
+boundaries of what goes to the credit and what to the competency _are
+very nice, and the latter carried too far_"; and in the same case he
+said, "that, unless the objection appeared to him to carry a strong
+danger of perjury, and some apparent advantage might accrue to the
+witness, he was always inclined to let it go to his credit, only _in
+order to let in a proper light to the case, which would otherwise be
+shut out_; and _in a doubtful case_, he said, it was generally his
+custom _to admit the evidence_, and give such directions to the jury as
+the nature of the case might require."[60]
+
+It is a known rule of evidence, that an interest in the matter to be
+supported by testimony disqualifies a witness; yet Lord Mansfield held,
+"that _nice_ objections to a remote interest which could not be paid or
+released, though they held in other cases, were not allowed to
+disqualify a witness to a will, as parishioners might have [prove?] a
+devise to the use of the poor of the parish forever." He went still
+nearer, and his doctrine tends so fully to settle the principles of
+departure from or adherence to rules of evidence, that your Committee
+inserts part of the argument at large. "The disability of a witness from
+interest is very different from a positive incapacity. If a deed must be
+acknowledged before a judge or notary public, every other person is
+under a positive incapacity to authenticate it; but objections of
+interest are deductions from natural reason, and proceed upon a
+presumption of too great a bias in the mind of the witness, and the
+public utility of rejecting partial testimony. Presumptions stand no
+longer than till the contrary is proved. The presumption of bias may be
+taken off by showing the witness has a [as?] great or a greater
+interest the other way, or that he has given it up. The presumption of
+public utility may be answered by showing that it would be very
+inconvenient, under the particular circumstances, not to receive such
+testimony. Therefore, from the course of business, necessity, and other
+reasons of expedience, _numberless exceptions_ are allowed to the
+_general_ rule."[61]
+
+These being the principles of the latter jurisprudence, the Judges have
+suffered no positive rule of evidence to counteract those principles.
+They have even suffered subscribing witnesses to a will which recites
+the soundness of mind in the testator to be examined to prove his
+insanity, and then the court received evidence to overturn that
+testimony and to destroy the credit of those witnesses. They were five
+in number, who attested to a will and codicil. They were admitted to
+annul the will they had themselves attested. Objections were taken to
+the competency of one of the witnesses in support of the will against
+its subscribing witnesses: 1st, That the witness was an executor in
+trust, and so liable to actions; 2dly, As having acted under the trust,
+whereby, if the will were set aside, he would be liable to answer for
+damages incurred by the sale of the deceased's chambers to a Mr.
+Frederick. Mr. Frederick offered to submit to a rule to release, for the
+sake of public justice. Those who maintained the objection cited
+Siderfin, a reporter of much authority, 51, 115, and 1st Keble, 134.
+Lord Mansfield, Chief-Justice, did not controvert those authorities; but
+in the course of obtaining substantial justice he treated both of them
+with equal contempt, though determined by judges of high reputation.
+His words are remarkable: "We do not _now_ sit here to take our rules of
+evidence from Siderfin and Keble." He overruled the objection upon more
+recent authorities, which, though not in similar circumstances, he
+considered as within the reason. The Court did not think it necessary
+that the witness should release, as he had offered to do. "It appeared
+on this trial," says Justice Blackstone, "that a black conspiracy was
+formed to set aside the gentleman's will, without any foundation
+whatever." A prosecution against three of the testamentary witnesses was
+recommended, who were afterwards convicted of perjury.[62] Had strict
+formalities with regard to evidence been adhered to in any part of this
+proceeding, that very black conspiracy would have succeeded, and those
+black conspirators, instead of receiving the punishment of their crimes,
+would have enjoyed the reward of their perjury.
+
+Lord Mansfield, it seems, had been misled, in a certain case, with
+regard to precedents. His opinion was against the reason and equity of
+the supposed practice, but he supposed himself not at liberty to give
+way to his own wishes and opinions. On discovering his error, he
+considered himself as freed from an intolerable burden, and hastened to
+undo his former determination. "There are no precedents," said he, with
+some exultation, "which stand in the way of our determining _liberally_,
+_equitably_, and according to the _true_ intention of the parties." In
+the same case, his learned assessor, Justice Wilmot, felt the same
+sentiments. His expressions are remarkable:--"Courts of law ought to
+concur with courts of equity in the execution of those powers which are
+very convenient to be inserted in settlements; and they ought not to
+listen to nice distinctions that savor of the schools, but to be guided
+by true good sense and manly reason. After the Statute of Uses, it is
+much to be lamented that the courts of Common Law had not adopted all
+the rules and maxims of courts of equity. This would have prevented the
+absurdity of receiving costs in one court and paying them in
+another."[63]
+
+Your Committee does not produce the doctrine of this particular case as
+directly applicable to their charge, no more than several of the others
+here cited. We do not know on what precedents or principles the evidence
+proposed by us has been deemed inadmissible by the Judges; therefore
+against the grounds of this rejection we find it difficult directly to
+oppose anything. These precedents and these doctrines are brought to
+show the general temper of the courts, their growing liberality, and the
+general tendency of all their reasonings and all their determinations to
+set aside all such technical subtleties or formal rules, which might
+stand in the way of the discovery of truth and the attainment of
+justice. The cases are adduced for the principles they contain.
+
+The period of the cases and arguments we have cited was that in which
+large and liberal principles of evidence were more declared, and more
+regularly brought into system. But they had been gradually improving;
+and there are few principles of the later decisions which are not to be
+found in determinations on cases prior to the time we refer to. Not to
+overdo this matter, and yet to bring it with some degree of clearness
+before the House, your Committee will refer but to a few authorities,
+and those which seem most immediately to relate to the nature of the
+cause intrusted to them. In Michaelmas, 11 Will. III., the King _v._ the
+Warden of the Fleet, a witness, who had really been a prisoner, and
+voluntarily suffered to escape, was produced to prove the escape. To the
+witness it was objected, that he had given a bond to be a true prisoner,
+which he had forfeited by escaping: besides, he had been retaken. His
+testimony was allowed; and by the Court, among other things, it was
+said, in secret transactions, if any of the parties concerned are not to
+be, for the necessity of the third, admitted as evidence, it will be
+impossible to detect the practice: as in cases of the Statute of Hue and
+Cry, the party robbed shall be a witness to charge the hundred; and in
+the case of Cooke _v._ Watts in the Exchequer, where one who had been
+prejudiced by the will was admitted an evidence to prove it forged.[64]
+So in the case of King _v._ Parris,[65] where a feme covert was admitted
+as a witness for _fraudulently_ drawing her in, when sole, to give a
+warrant of attorney for confessing a judgment on an unlawful
+consideration, whereby execution was sued out against her husband, and
+Holt, Chief-Justice, held that a feme covert could not, by law, be a
+witness to convict one on an information; yet, in Lord Audley's case, it
+being a rape on her person, she was received to give evidence against
+him, and the Court concurred with him, because it was the best evidence
+the nature of the thing would allow. This decision of Holt refers to
+others more early, and all on the same principle; and it is not of this
+day that this one great principle of eminent public expedience, this
+moral necessity, "that crimes should not escape with impunity,"[66] has
+in all cases overborne all the common juridical rules of evidence,--it
+has even prevailed over the first and most natural construction of acts
+of Parliament, and that in matters of so penal a nature as high treason.
+It is known that statutes made, not to open and enlarge, but on fair
+grounds to straiten proofs, require two witnesses in cases of high
+treason. So it was understood, without dispute and without distinction,
+until the argument of a case in the High Court of Justice, during the
+Usurpation. It was the case of the Presbyterian minister, Love, tried
+for high treason against the Commonwealth, in an attempt to restore the
+King. In this trial, it was contended for, and admitted, that one
+witness to one overt act, and one to another overt act of the same
+treason, ought to be deemed sufficient.[67] That precedent, though
+furnished in times from which precedents were cautiously drawn, was
+received as authority throughout the whole reign of Charles II.; it was
+equally followed after the Revolution; and at this day it is undoubted
+law. It is not so from the natural or technical rules of construction of
+the act of Parliament, but from the principles of juridical policy. All
+the judges who have ruled it, all the writers of credit who have written
+upon it, assign this reason, and this only,--_that treasons, being
+plotted in secrecy, could in few cases be otherwise brought to
+punishment_.
+
+The same principle of policy has dictated a principle of relaxation
+with regard to severe rules of evidence, in all cases similar, though of
+a lower order in the scale of criminality. It is against fundamental
+maxims that an accomplice should be admitted as a witness: but
+accomplices are admitted from the policy of justice, otherwise
+confederacies of crime could not be dissolved. There is no rule more
+solid than that a man shall not entitle himself to profit by his own
+testimony. But an informer, in case of highway robbery, may obtain forty
+pounds to his own profit by his own evidence: this is not in consequence
+of positive provision in the act of Parliament; it is a provision of
+policy, lest the purpose of the act should be defeated.
+
+Now, if policy has dictated this very large construction of an act of
+Parliament concerning high treason, if the same policy has dictated
+exceptions to the clearest and broadest rules of evidence in other
+highly penal causes, and if all this latitude is taken concerning
+matters for the greater part within our insular bounds, your Committee
+could not, with safety to the larger and more remedial justice of the
+Law of Parliament, admit any rules or pretended rules, unconnected and
+uncontrolled by circumstances, to prevail in a trial which regarded
+offences of a nature as difficult of detection, and committed far from
+the sphere of the ordinary practice of our courts.
+
+If anything of an over-formal strictness is introduced into the trial of
+Warren Hastings, Esquire, it does not seem to be copied from the
+decisions of these tribunals. It is with great satisfaction your
+Committee has found that the reproach of "disgraceful subtleties,"
+inferior rules of evidence which prevent the discovery of truth, of
+forms and modes of proceeding which stand in the way of that justice the
+forwarding of which is the sole rational object of their invention,
+cannot fairly be imputed to the Common Law of England, or to the
+ordinary practice of the courts below.
+
+
+CIRCUMSTANTIAL EVIDENCE, ETC.
+
+The rules of evidence in civil and in criminal cases, in law and in
+equity, being only reason methodized, are certainly the same. Your
+Committee, however, finds that the far greater part of the law of
+evidence to be found in our books turns upon questions relative to civil
+concerns. Civil cases regard property: now, although property itself is
+not, yet almost everything concerning property and all its modifications
+is, of artificial contrivance. The rules concerning it become more
+positive, as connected with positive institution. The legislator
+therefore always, the jurist frequently, may ordain certain methods by
+which alone they will suffer such matters to be known and established;
+because their very essence, for the greater part, depends on the
+arbitrary conventions of men. Men act on them with all the power of a
+creator over his creature. They make fictions of law and presumptions of
+(_praesumptiones juris et de jure_) according to their ideas of utility;
+and against those fictions, and against presumptions so created, they do
+and may reject all evidence. However, even in these cases there is some
+restraint. Lord Mansfield has let in a liberal spirit against the
+fictions of law themselves; and he declared that he would do what in one
+case[68] he actually did, and most wisely, that he would admit evidence
+against a fiction of law, when the fiction militated against the policy
+on which it was made.
+
+Thus it is with things which owe their existence to men; but where the
+subject is of a physical nature, or of a moral nature, independent of
+their conventions, men have no other reasonable authority than to
+register and digest the results of experience and observation. Crimes
+are the actions of physical beings with an evil intention abusing their
+physical powers against justice and to the detriment of society: in this
+case fictions of law and artificial presumptions (_juris et de jure_)
+have little or no place. The presumptions which belong to criminal cases
+are those natural and popular presumptions which are only observations
+turned into maxims, like adages and apophthegms, and are admitted (when
+their grounds are established) in the place of proof, where better is
+wanting, but are to be always over turned by counter proof.
+
+These presumptions mostly go to the _intention_. In all criminal cases,
+the crime (except where the law itself implies malice) consists rather
+in the intention than the action. Now the intention is proved but by two
+ways: either, 1st, by confession,--this first case is rare, but
+simple,--2dly, by circumstantial proof,--this is difficult, and requires
+care and pains. The connection of the intention and the circumstances is
+plainly of such a nature as more to depend on the sagacity of the
+observer than on the excellence of any rule. The pains taken by the
+Civilians on that subject have not been very fruitful; and the English
+law-writers have, perhaps as wisely, in a manner abandoned the pursuit.
+In truth, it seems a wild attempt to lay down any rule for the proof of
+intention by circumstantial evidence. All the acts of the party,--all
+things that explain or throw light on these acts,--all the acts of
+others relative to the affair, that come to his knowledge, and may
+influence him,--his friendships and enmities, his promises, his threats,
+the truth of his discourses, the falsehood of his apologies, pretences,
+and explanations, his looks, his speech, his silence where he was called
+to speak,--everything which tends to establish the connection between
+all these particulars,--every circumstance, precedent, concomitant, and
+subsequent, become parts of circumstantial evidence. These are in their
+nature infinite, and cannot be comprehended within any rule or brought
+under any classification.
+
+Now, as the force of that presumptive and conjectural proof rarely, if
+ever, depends on one fact only, but is collected from the number and
+accumulation of circumstances concurrent in one point, we do not find an
+instance, until this trial of Warren Hastings, Esquire, (which has
+produced many novelties,) that attempts have been made by any court to
+call on the prosecutor for an account of the purpose for which he means
+to produce each particle of this circumstantial evidence, to take up the
+circumstances one by one, to prejudge the efficacy of each matter
+separately in proving the point,--and thus to break to pieces and to
+garble those facts, upon the multitude of which, their combination, and
+the relation of all their component parts to each other and to the
+culprit, the whole force and virtue of this evidence depends. To do
+anything which can destroy this collective effect is to deny
+circumstantial evidence.
+
+Your Committee, too, cannot but express their surprise at the particular
+period of the present trial when the attempts to which we have alluded
+first began to be made. The two first great branches of the accusation
+of this House against Warren Hastings, Esquire, relate to public and
+notorious acts, capable of direct proof,--such as the expulsion of Cheyt
+Sing, with its consequences on the province of Benares, and the seizure
+of the treasures and jaghires of the Begums of Oude. Yet, in the proof
+of those crimes, your Committee cannot justly complain that we were very
+narrowly circumscribed in the production of much circumstantial as well
+as positive evidence. We did not find any serious resistance on this
+head, till we came to make good our charges of secret crimes,--crimes of
+a class and description in the proof of which all judges of all
+countries have found it necessary to relax almost all their rules of
+competency: such crimes as peculation, pecuniary frauds, extortion, and
+bribery. Eight out of nine of the questions put to the Judges by the
+Lords, in the first stage of the prosecution, related to circumstances
+offered in proof of these secret crimes.
+
+Much industry and art have been used, among the illiterate and
+unexperienced, to throw imputations on this prosecution, and its
+conduct, because so great a proportion of the evidence offered on this
+trial (especially on the latter charges) has been circumstantial.
+Against the prejudices of the ignorant your Committee opposes the
+judgment of the learned. It is known to them, that, when this proof is
+in its greatest perfection, that is, when it is most abundant in
+circumstances, it is much superior to positive proof; and for this we
+have the authority of the learned judge who presided at the trial of
+Captain Donellan. "On the part of the prosecution, a great deal of
+evidence has been laid before you. It is _all_ circumstantial evidence,
+and in its nature it must be so: for, in cases of this sort, no man is
+weak enough to commit the act in the presence of other persons, or to
+suffer them to see what he does at the time; and therefore it can only
+be made out by circumstances, either before the committing of the act,
+at the time when it was committed, or subsequent to it. And a
+presumption, which necessarily arises from circumstances, is very often
+more convincing and more satisfactory than any other kind of evidence:
+because it is not within the reach and compass of human abilities to
+invent a train of circumstances which shall be so connected together as
+to amount to a proof of guilt, without affording opportunities of
+contradicting a great part, if not all, of these circumstances. But if
+the circumstances are such as, when laid together, bring conviction to
+your minds, it is then fully equal, if not, as I told you before, _more_
+convincing than positive evidence." In the trial of Donellan no such
+selection was used as we have lately experienced; no limitation to the
+production of every matter, before, at, and after the fact charged. The
+trial was (as we conceive) rightly conducted by the learned judge;
+because secret crimes, such as secret assassination, poisoning, bribery,
+peculation, and extortion, (the three last of which this House has
+charged upon Mr. Hastings,) can very rarely be proved in any other way.
+That way of proof is made to give satisfaction to a searching,
+equitable, and intelligent mind; and there must not be a failure of
+justice. Lord Mansfield has said that he did not know a case in which
+proof might not be supplied.[69]
+
+Your Committee has resorted to the trial of Donellan, and they have and
+do much rely upon it, first, on account of the known learning and
+ability of the judge who tried the cause, and the particular attention
+he has paid to the subject of evidence, which forms a book in his
+treatise on _Nisi Prius_;--next, because, as the trial went _wholly_ on
+circumstantial evidence, the proceedings in it furnish some of the most
+complete and the fullest examples on that subject;--thirdly, because the
+case is recent, and the law cannot be supposed to be materially altered
+since the time of that event.
+
+Comparing the proceedings on that trial, and the doctrines from the
+bench, with the doctrines we have heard from the woolsack, your
+Committee cannot comprehend how they can be reconciled. For the Lords
+compelled the Managers to declare for what purpose they produced each
+separate member of their circumstantial evidence: a thing, as we
+conceive, not usual, and particularly not observed in the trial of
+Donellan. We have observed in that trial, and in most others which we
+have had occasion to resort to, that the prosecutor is suffered to
+proceed narratively and historically, without interruption. If, indeed,
+it appears on the face of the narration that what is represented to have
+been said, written, or done did not come to the knowledge of the
+prisoner, a question sometimes, but rarely, has been asked, whether the
+prisoner could be affected with the knowledge of it. When a connection
+with the person of the prisoner has been in any way shown, or even
+promised to be shown, the evidence is allowed to go on without further
+opposition. The sending of a sealed letter,--the receipt of a sealed
+letter, inferred from the delivery to the prisoner's servant,--the bare
+possession of a paper written by any other person, on the presumption
+that the contents of such letters or such paper were known to the
+prisoner,--and the being present when anything was said or done, on the
+presumption of his seeing or hearing what passed, have been respectively
+ruled to be sufficient. If, on the other hand, no circumstance of
+connection has been proved, the judge, in summing up, has directed the
+jury to pay no regard to a letter or conversation the proof of which has
+so failed: a course much less liable to inconvenience, where the same
+persons decide both the law and the fact.[70]
+
+To illustrate the difficulties to which your Committee was subjected on
+this head, we think it sufficient to submit to the House (reserving a
+more full discussion of this important point to another occasion) the
+following short statement of an incident which occurred in this trial.
+
+By an express order of the Court of Directors, (to which, by the express
+words of the act of Parliament under which he held his office, he was
+ordered to yield obedience,) Mr. Hastings and his colleagues were
+directed to make an inquiry into all offences of bribery and corruption
+in office. On the 11th of March a charge in writing of bribery and
+corruption in office was brought against himself. On the 13th of the
+same month, the accuser, a man of high rank, the Rajah Nundcomar,
+appears personally before the Council to make good his charge against
+Mr. Hastings before his own face. Mr. Hastings thereon fell into a very
+intemperate heat, obstinately refused to be present at the examination,
+attempted to dissolve the Council, and contumaciously retired from it.
+Three of the other members, a majority of the Council, in execution of
+their duty, and in obedience to the orders received under the act of
+Parliament, proceeded to take the evidence, which is very minute and
+particular, and was entered in the records of the Council by the regular
+official secretary. It was afterwards read in Mr. Hastings's own
+presence, and by him transmitted, under his own signature, to the Court
+of Directors. A separate letter was also written by him, about the same
+time, desiring, on his part, that, in any inquiry into his conduct, "not
+a single word should escape observation." This proceeding in the Council
+your Committee, in its natural order, and in a narrative chain of
+circumstantial proof, offered in evidence. It was not permitted to be
+read; and on the 20th and 21st of May, 1789, we were told from the
+woolsack, "that, when a paper is not evidence by itself," (such this
+part of the Consultation, it seems, was reputed,) "a party who wishes to
+introduce a paper of that kind is called upon not only to state, but to
+make out on proof, _the whole of the grounds upon which he proceeds to
+make that paper proper evidence_; that the evidence that is produced
+must be _the demeanor_ of the party respecting that paper; and it is the
+connection between them, _as material to the charge depending_, that
+will enable them to be produced."
+
+Your Committee observes, that this was not a paper _foreign_ to the
+prisoner, and sent to him as _a letter_, the receipt of which, and his
+conduct thereon, were to be brought home to him, to infer his guilt from
+his demeanor. It was an office document of his own department,
+concerning himself, and kept by officers of his own, and by himself
+transmitted, as we have said, to the Court of Directors. Its proof was
+in the record. The charge made against him, and his demeanor on being
+acquainted with it, were not in separate evidence. They all lay
+together, and composed a connected narrative of the business,
+authenticated by himself.
+
+In that case it seems to your Committee extremely irregular and
+preposterous to demand previous and extraneous proofs of the demeanor of
+the party respecting the paper, and the connection between them, as
+_material to the charge_ depending; for this would be to try what the
+effect and operation of the evidence would be on the issue of the cause,
+before its production.
+
+The doctrine so laid down demands that every several circumstance should
+in itself be conclusive, or at least should afford a violent
+presumption: it must, we were told, without question, be material to the
+charge depending. But, as we conceive, its materiality, more or less, is
+not in the first instance to be established. To make it admissible, it
+is enough to give proof, or to raise a legal inference, of its
+connection both with the charge depending and the person of the party
+charged, where it does not appear on the face of the evidence offered.
+Besides, by this new doctrine, the materiality required to be shown must
+be decided from a consideration, not of the whole circumstance, but in
+truth of one half of the circumstance,--of a demeanor unconnected with
+and unexplained by that on which it arose, though the connection between
+the demeanor of the party and the paper is that which must be shown to
+be material. Your Committee, after all they have heard, is yet to learn
+how the full force and effect of any demeanor, as evidence of guilt or
+innocence, can be known, unless it be also fully known _to what that
+demeanor applied_,--unless, when a person did or said anything, it be
+known, not generally and abstractedly, that a paper was read to him, but
+particularly and specifically _what were the contents of that paper_:
+whether they were matters lightly or weightily alleged,--within the
+power of the party accused to have confuted on the spot, if false,--or
+such as, though he might have denied, he could not instantly have
+disproved. The doctrine appeared and still appears to your Committee to
+be totally abhorrent from the genius of circumstantial evidence, and
+mischievously subversive of its use. We did, however, offer that
+extraneous proof which was demanded of us; but it was refused, as well
+as the office document.
+
+Your Committee thought themselves the more bound to contend for every
+mode of evidence _to the intention,_ because in many of the cases the
+gross fact was admitted, and the prisoner and his counsel set up
+pretences of public necessity and public service for his justification.
+No way lay open for rebutting this justification, but by bringing out
+all the circumstances attendant on the transaction.
+
+
+ORDER AND TIME OF PRODUCING EVIDENCE.
+
+Your Committee found great impediment in the production of evidence, not
+only on account of the general doctrines supposed to exist concerning
+its inadmissibility, drawn from its own alleged natural incompetency, or
+from its inapplicability under the pleading of the impeachment of this
+House, but also from the mode of proceeding in bringing it forward. Here
+evidence which we thought necessary to the elucidation of the cause was
+not suffered, upon the supposed rules of _examination in chief and
+cross-examination_, and on supposed rules forming a distinction between
+evidence _originally_ produced on the charge and evidence offered on
+_the reply_.
+
+On all these your Committee observes in general, that, if the rules
+which respect the substance of the evidence are (as the great lawyers on
+whose authority we stand assert they are) no more than rules of
+convenience, much more are those subordinate rules which regard the
+order, the manner, and the time of the arrangement. These are purely
+arbitrary, without the least reference to any fixed principle in the
+nature of things, or to any settled maxim of jurisprudence, and
+consequently are variable at every instant, as the conveniencies of the
+cause may require.
+
+We admit, that, in the order of mere arrangement, there is a difference
+between examination of witnesses in chief and cross-examination, and
+that in general these several parts are properly cast according to the
+situation of the parties in the cause; but there neither is nor can be
+any precise rule to discriminate the exact bounds between examination
+and cross-examination. So as to time there is necessarily some limit,
+but a limit hard to fix. The only one which can be fixed with any
+tolerable degree of precision is when the judge, after fully hearing all
+parties, is to consider of his verdict or his sentence. Whilst the cause
+continues under hearing in any shape, or in any stage of the process, it
+is the duty of the judge to receive every offer of evidence, apparently
+material, suggested to him, though the parties themselves, through
+negligence, ignorance, or corrupt collusion, should not bring it
+forward. A judge is not placed in that high situation merely as a
+passive instrument of parties. He has a duty of his own, independent of
+them, and that duty is to investigate the truth. There may be no
+prosecutor. In our law a permanent prosecutor is not of necessity. The
+Crown prosecutor in criminal cases is a grand jury; and this is
+dissolved instantly on its findings and its presentments. But if no
+prosecutor appears, (and it has happened more than once,) the court is
+obliged through its officer, the clerk of the arraigns, to examine and
+cross-examine every witness who presents himself; and the judge is to
+see it done effectually, and to act his own part in it,--and this as
+long as evidence shall be offered within the time which the mode of
+trial will admit.
+
+Your Committee is of opinion, that, if it has happened that witnesses,
+or other kinds of evidence, have not been frequently produced after the
+closing of the prisoner's defence, or such evidence has not been in
+reply given, it has happened from the peculiar nature of our common
+judicial proceedings, in which all the matter of evidence must be
+presented whilst the bodily force and the memory or other mental
+faculties of men can hold out. This does not exceed the compass of one
+natural day, or thereabouts: during that short space of time new
+evidence very rarely occurs for production by any of the parties;
+because the nature of man, joined to the nature of the tribunals, and of
+the mode of trial at Common Law, (good and useful on the whole,)
+prescribe limits which the mere principles of justice would of
+themselves never fix.
+
+But in other courts, such as the Court of Chancery, the Courts of
+Admiralty Jurisdiction, (except in prize causes under the act of
+Parliament,) and in the Ecclesiastical Courts, wherein the trial is not
+by an inclosed jury in those courts, such strait limits are not of
+course necessary: the cause is continued by many adjournments; as long
+as the trial lasts, new witnesses are examined (even after the regular
+stage) for each party, on a special application under the circumstances
+to the sound discretion of the court, where the evidence offered is
+newly come to the knowledge or power of the party, and appears on the
+face of it to be material in the cause. _Even after hearing_, new
+witnesses have been examined, or former witnesses reexamined, not as the
+right of the parties, but _ad informandam conscientiam judicis_.[71] All
+these things are not unfrequent in some, if not in all of these courts,
+and perfectly known to the judges of Westminster Hall; who cannot be
+supposed ignorant of the practice of the Court of Chancery, and who sit
+to try appeals from the Admiralty and Ecclesiastical Courts as
+delegates.
+
+But as criminal prosecutions according to the forms of the Civil and
+Canon Law are neither many nor important in any court of this part of
+the kingdom, your Committee thinks it right to state the undisputed
+principle of the Imperial Law, from the great writer on this subject
+before cited by us,--from Carpzovius. He says, "that a doubt has arisen,
+whether, evidence being once given in a trial on a public prosecution,
+(_in processu inquisitorio_,) and the witnesses being examined, it may
+be allowed to form other and new articles and to produce new witnesses."
+Your Committee must here observe, that the _processus inquisitorius_ is
+that proceeding in which the prosecution is carried on in the name of
+the judge acting _ex officio_, from that duty of his office which is
+called the _nobile officium judicis_. For the judge under the Imperial
+Law possesses both those powers, the inquisitorial and the judicial,
+which in the High Court of Parliament are more aptly divided and
+exercised by the different Houses; and in this kind of process the House
+will see that Carpzovius couples the production of new witnesses and the
+forming of new articles (the undoubted privilege of the Commons) as
+intimately and necessarily connected. He then proceeds to solve the
+doubt. "Certainly," says he, "there are authors who deny, that, after
+publication of the depositions, any new witnesses and proofs that can
+affect the prisoner ought to be received; which," says he, "is true in a
+case where a private prosecutor has intervened, who produces the
+witnesses. But if the judge proceeds by way of inquisition _ex officio_,
+then, even after the completion of the examination of witnesses against
+the prisoner, new witnesses may be received and examined, and, on new
+grounds of suspicion arising, new articles may be formed, according to
+the common opinion of the doctors; and as it is the most generally
+received, so it is most agreeable to reason."[72] And in another
+chapter, relative to the ordinary criminal process by a private
+prosecutor, he lays it down, on the authority of Angelus, Bartolus, and
+others, that, after the right of the party prosecuting is expired, the
+judge, taking up the matter _ex officio_, may direct new witnesses and
+new proofs, even after publication.[73] Other passages from the same
+writer and from others might be added; but your Committee trusts that
+what they have produced is sufficient to show the general principles of
+the Imperial Criminal Law.
+
+The High Court of Parliament bears in its modes of proceeding a much
+greater resemblance to the course of the Court of Chancery, the
+Admiralty, and Ecclesiastical Courts, (which are the King's courts too,
+and their law the law of the land,) than to those of the Common Law. The
+accusation is brought into Parliament, at this very day, by _exhibiting
+articles_; which your Committee is informed is the regular mode of
+commencing a criminal prosecution, where the office of the judge is
+promoted, in the Civil and Canon Law courts of this country. The answer,
+again, is usually specific, both to the fact and the law alleged in each
+particular article; which is agreeable to the proceeding of the Civil
+Law, and not of the Common Law.
+
+Anciently the resemblance was much nearer and stronger. Selden, who was
+himself a great ornament of the Common Law, and who was personally
+engaged in most of the impeachments of his time, has written expressly
+on the judicature in Parliament. In his fourth chapter, intituled, _Of
+Witnesses_, he lays down the practice of his time, as well as of ancient
+times, with respect to the proof by examination; and it is clearly a
+practice more similar to that of the Civil than the Common Law. "The
+practice at this day," says he, "is to swear the witnesses in open
+House, and then to examine them there, _or at a committee_, either upon
+_interrogatories_ agreed upon in the House, or such as the committee in
+their discretion shall demand. Thus it was in ancient times, as shall
+appear by the precedents, so many as they are, they being very sparing
+to record those ceremonies, which I shall briefly recite: I then add
+those of later times."
+
+Accordingly, in times so late as those of the trial of Lord
+Middlesex,[74] upon an impeachment of the Commons, the whole course of
+the proceeding, especially in the mode of adducing the evidence, was in
+a manner the same as in the Civil Law: depositions were taken, and
+publication regularly passed: and on the trial of Lord Strafford, both
+modes pointed out by Selden seem to have been indifferently used.
+
+It follows, therefore, that this high court (bound by none of their
+rules) has a liberty to adopt the methods of any of the legal courts of
+the kingdom at its discretion; and in _sound_ discretion it ought to
+adopt those which bear the nearest resemblance to its own constitution,
+to its own procedure, and to its exigencies in the promotion of justice.
+There are conveniencies and inconveniencies both in the shorter and the
+longer mode of trial. But to bring the methods observed (if such are in
+fact observed) in the former, only from necessity, into the latter, by
+choice, is to load it with the inconveniency of both, without the
+advantages of either. The chief benefit of any process which admits of
+adjournments is, that it may afford means of fuller information and more
+mature deliberation. If neither of the parties have a strict right to
+it, yet the court or the jury, as the case may be, ought to demand it.
+
+Your Committee is of opinion, that all rules relative to laches or
+neglects in a party to the suit, which may cause nonsuit on the one hand
+or judgment by default in the other, all things which cause the party
+_cadere in jure_, ought not to be adhered to in the utmost rigor, even
+in civil cases; but still less ought that spirit which takes advantage
+of lapses and failures on either part to be suffered to govern in causes
+criminal. "Judges ought to _lean_ against every attempt to nonsuit a
+plaintiff on objections which have no relation to the real merits. It is
+unconscionable in a defendant to take advantage of the _apices
+litigandi_: against such objections _every possible presumption ought to
+be made which ingenuity can suggest_. How disgraceful would it be to the
+administration of justice to allow chicane to obstruct right!"[75] This
+observation of Lord Mansfield applies equally to every means by which,
+indirectly as well as directly, the cause may fail upon any other
+principles than those of its merits. He thinks that all the resources of
+ingenuity ought to be employed to baffle chicane, not to support it. The
+case in which Lord Mansfield has delivered this sentiment is merely a
+civil one. In civil causes of _meum et tuum_, it imports little to the
+commonwealth, whether _Titus_ or _Maevius_ profits of a legacy, or
+whether _John a Nokes_ or _John a Stiles_ is seized of the manor of
+_Dale_. For which reason, in many cases, the private interests of men
+are left by courts to suffer by their own neglects and their own want of
+vigilance, as their fortunes are permitted to suffer from the same
+causes in all the concerns of common life. But in crimes, where the
+prosecution is on the part of the public, (as all criminal prosecutions
+are, except appeals,) the public prosecutor ought not to be considered
+as a plaintiff in a cause of _meum et tuum_; nor the prisoner, in such a
+cause, as a common defendant. In such a cause the state itself is highly
+concerned in the event: on the other hand, the prisoner may lose life,
+which all the wealth and power of all the states in the world cannot
+restore to him. Undoubtedly the state ought not to be weighed against
+justice; but it would be dreadful indeed, if causes of such importance
+should be sacrificed to petty regulations, of mere secondary
+convenience, not at all adapted to such concerns, nor even made with a
+view to their existence. Your Committee readily adopts the opinion of
+the learned Ryder, that it would be better, if there were no such rules,
+than that there should be no exceptions to them. Lord Hardwicke declared
+very properly, in the case of the Earl of Chesterfield against Sir
+Abraham Janssen, "that political arguments, in the fullest sense of the
+word, as they concerned the government of a nation, must be, and always
+have been, of great weight in the consideration of this court. Though
+there be no _dolus malus_ in contracts, with regard to other persons,
+yet, if the rest of mankind are concerned as well as the parties, it
+may be properly said, it regards the public utility."[76] Lord Hardwicke
+laid this down in a cause of _meum et tuum_, between party and party,
+where the public was concerned only remotely and in the example,--not,
+as in this prosecution, when the political arguments are infinitely
+stronger, the crime relating, and in the most eminent degree relating,
+to the public.
+
+One case has happened since the time which is limited by the order of
+the House for this Report: it is so very important, that we think
+ourselves justified in submitting it to the House without delay. Your
+Committee, on the supposed rules here alluded to, has been prevented (as
+of right) from examining a witness of importance in the case, and one on
+whose supposed knowledge of his most hidden transactions the prisoner
+had himself, in all stages of this business, as the House well knows,
+endeavored to raise presumptions in favor of his cause. Indeed, it was
+his principal, if not only justification, as to the _intention_, in many
+different acts of corruption charged upon him. The witness to whom we
+allude is Mr. Larkins. This witness came from India after your Committee
+had closed the evidence of this House in chief, and 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, 28º 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, 10º 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.
+
+My Lords, what shall we say to this demeanor? With regard to the charge
+of using him with ingratitude, there are two points to be considered.
+First, the charge implies that he had rendered great services; and,
+secondly, that he has been falsely accused.
+
+My Lords, as to the great services, they have not, they cannot, come in
+evidence before you. If you have received such evidence, you have
+received it obliquely; for there is no other direct proof before your
+Lordships of such services than that of there having been great
+distresses and great calamities in India during his government. Upon
+these distresses and calamities he has, indeed, attempted to justify
+obliquely the corruption that has been charged upon him; but you have
+not properly in issue these services. You cannot admit the evidence of
+any such services received directly from him, as a matter of
+recriminatory charge upon the House of Commons, because you have not
+suffered that House to examine into the validity and merit of this plea.
+We have not been heard upon this recriminatory charge, which makes a
+considerable part of the demeanor of the prisoner; we cannot be heard
+upon it; and therefore I demand, on the part of the Commons of Great
+Britain, that it be dismissed from your consideration: and this I
+demand, whether you take it as an attempt to render odious the conduct
+of the Commons, whether you take it in mitigation of the punishment due
+to the prisoner for his crimes, or whether it be adduced as a
+presumption that so virtuous a servant never could be guilty of the
+offences with which we charge him. In whichever of these lights you may
+be inclined to consider this matter, I say you have it not in evidence
+before you; and therefore you must expunge it from your thoughts, and
+separate it entirely from your judgment. I shall hereafter have
+occasion, to say a few words on this subject of _merits_. I have said
+thus much at present in order to remove extraneous impressions from your
+minds. For, admitting that your Lordships are the best judges, as I well
+know that you are, yet I cannot say that you are not men, and that
+matter of this kind, however irrelevant, may not make an impression upon
+you. It does, therefore, become us to take some occasional notice of
+these supposed services, not in the way of argument, but with a view by
+one sort of prejudice to destroy another prejudice. If there is anything
+in evidence which tends to destroy this plea of merits, we shall recur
+to that evidence; if there is nothing to destroy it but argument, we
+shall have recourse to that argument; and if we support that argument by
+authority and document not in your Lordships' minutes, I hope it will
+not be the less considered as good argument because it is so supported.
+
+I must now call your Lordships' attention from the vaunted services of
+the prisoner, which have been urged to convict us of ingratitude, to
+another part of his recriminatory defence. He says, my Lords, that we
+have not only oppressed him with unjust charges, (which is a matter for
+your Lordships to judge, and is now the point at issue between us,) but
+that, instead of attacking him by fair judicial modes of proceeding, by
+stating crimes clearly and plainly, and by proving those crimes, and
+showing their necessary consequences, we have oppressed him with all
+sorts of foul and abusive language,--so much so, that every part of our
+proceeding has, in the eye of the world, more the appearance of private
+revenge than of public justice.
+
+Against this impudent and calumnious recriminatory accusation, which
+your Lordships have thought good to suffer him to utter here, at a time,
+too, when all dignity is in danger of being trodden under foot, we will
+say nothing by way of defence. The Commons of Great Britain, my Lords,
+are a rustic people: a tone of rusticity is therefore the proper accent
+of their Managers. We are not acquainted with the urbanity and
+politeness of extortion and oppression; nor do we know anything of the
+sentimental delicacies of bribery and corruption. We speak the language
+of truth, and we speak it in the plain, simple terms in which truth
+ought to be spoken. Even if we have anything to answer for on this head,
+we can only answer to the body which we represent and to that body which
+hears us: to any others we owe no apology whatever.
+
+The prisoner at your bar admits that the crimes which we charge him
+with are of that atrocity, that, if brought home to him, he merits
+death. Yet, when, in pursuance of our duty, we come to state these
+crimes with their proper criminatory epithets, when we state in strong
+and direct terms the circumstances which heighten and aggravate them,
+when we dwell on the immoral and heinous nature of the acts, and the
+terrible effects which such acts produce, and when we offer to prove
+both the principal facts and the aggravatory ones by evidence, and to
+show their nature and quality by the rules of law, morality, and policy,
+then this criminal, then his counsel, then his accomplices and
+hirelings, posted in newspapers and dispersed in circles through every
+part of the kingdom, represent him as an object of great compassion,
+because he is treated, say they, with, nothing but opprobrious names and
+scurrilous invectives.
+
+To all this the Managers of the Commons will say nothing by way of
+defence: it would be to betray their trust, if they did. No, my Lords,
+they have another and a very different duty to perform on this occasion.
+They are bound not to suffer public opinion, which often prevents
+judgment and often defeats its effects, to be debauched and corrupted.
+Much less is this to be suffered in the presence of our cooerdinate
+branch of legislature, and as it were with your and our own tacit
+acquiescence. Whenever the public mind is misled, it becomes the duty of
+the Commons of Great Britain to give it a more proper tone and a juster
+way of thinking. When ignorance and corruption have usurped the
+professor's chair, and placed themselves in the seats of science and of
+virtue, it is high time for us to speak out. We know that the doctrines
+of folly are of great use to the professors of vice. We know that it is
+one of the signs of a corrupt and degenerate age, and one of the means
+of insuring its further corruption and degeneracy, to give mild and
+lenient epithets to vices and to crimes. The world is much influenced by
+names. And as terms are the representatives of sentiments, when persons
+who exercise any censorial magistracy seem in their language to
+compromise with crimes and criminals by expressing no horror of the one
+or detestation of the other, the world will naturally think that they
+act merely to acquit themselves in its sight in form, but in reality to
+evade their duty. Yes, my Lords, the world must think that such persons
+palter with their sacred trust, and are tender to crimes because they
+look forward to the future possession of the same power which they now
+prosecute, and purpose to abuse it in the manner it has been abused by
+the criminal of whom they are so tender.
+
+To remove such an imputation from us, we assert that the Commons of
+Great Britain are not to receive instructions about the language which
+they ought to hold from the gentlemen who have made profitable studies
+in the academies of Benares and of Oude. We know, and therefore do not
+want to learn, how to comport ourselves in prosecuting the haughty and
+overgrown delinquents of the East. We cannot require to be instructed by
+them in what words we shall express just indignation at enormous crimes;
+for we have the example of our great ancestors to teach us: we tread in
+their steps, and we speak in their language.
+
+Your Lordships well know, for you must be conversant in this kind of
+reading, that you once had before you a man of the highest rank in this
+country, one of the greatest men of the law and one of the greatest men
+of the state, a peer of your own body, Lord Macclesfield. Yet, my Lords,
+when that peer did but just modestly hint that he had received hard
+measure from the Commons and their Managers, those Managers thought
+themselves bound _seriatim_, one after another, to express the utmost
+indignation at the charge, in the harshest language that could be used.
+Why did they do so? They knew it was the language that became them. They
+lived in an age in which politeness was as well understood and as much
+cultivated as it is at present; but they knew what they were doing, and
+they were resolved to use no language but what their ancestors had used,
+and to suffer no insolence which their ancestors would not have
+suffered. We tread in their steps; we pursue their method; we learn of
+them: and we shall never learn at any other school.
+
+We know from history and the records of this House, that a Lord Bacon
+has been before you. Who is there, that, upon hearing this name, does
+not instantly recognize everything of genius the most profound,
+everything of literature the most extensive, everything of discovery the
+most penetrating, everything of observation on human life the most
+distinguishing and refined? All these must be instantly recognized, for
+they are all inseparably associated with the name of Lord Verulam. Yet,
+when this prodigy was brought before your Lordships by the Commons of
+Great Britain for having permitted his menial servant to receive
+presents, what was his demeanor? Did he require his counsel not "to let
+down the dignity of his defence"? No. That Lord Bacon, whose least
+distinction was, that he was a peer of England, a Lord High Chancellor,
+and the son of a Lord Keeper, behaved like a man who knew himself, like
+a man who was conscious of merits of the highest kind, but who was at
+the same time conscious of having fallen into guilt. The House of
+Commons did not spare him. They brought him to your bar. They found
+spots in that sun. And what, I again ask, was his behavior? That of
+contrition, that of humility, that of repentance, that which belongs to
+the greatest men lapsed and fallen through human infirmity into error.
+He did not hurl defiance at the accusations of his country; he bowed
+himself before it. Yet, with all his penitence, he could not escape the
+pursuit of the House of Commons, and the inflexible justice of this
+Court. Your Lordships fined him forty thousand pounds, notwithstanding
+all his merits, notwithstanding his humility, notwithstanding his
+contrition, notwithstanding the decorum of his behavior, so well suited
+to a man under the prosecution of the Commons of England before the
+Peers of England. You fined him in a sum fully equal to one hundred
+thousand pounds of the present day; you imprisoned him during the King's
+pleasure; and you disqualified him forever from having a seat in this
+House and any office in this kingdom. This is the way in which the
+Commons behaved formerly, and in which your Lordships acted formerly,
+when no culprit at this bar dared to hurl a recriminatory accusation
+against his prosecutors, or dared to censure the language in which they
+expressed their indignation at his crimes.
+
+The Commons of Great Britain, following these examples and fortified by
+them, abhor all compromise with guilt either in act or in language.
+They will not disclaim any one word that they have spoken, because, my
+Lords, they have said nothing abusive or illiberal. It has been, said
+that we have used such language as was used to Sir Walter Raleigh, when
+he was called, not by the Commons, but by a certain person of a learned
+profession, "a spider of hell." My Lords, Sir Walter was a great
+soldier, a great mariner, and one of the first scholars of his age. To
+call him a spider of hell was not only indecent in itself, but perfectly
+foolish, from the term being totally inapplicable to the object, and fit
+only for the very pedantic eloquence of the person who used it. But if
+Sir Walter Raleigh had been guilty of numberless frauds and
+prevarications, if he had clandestinely picked up other men's money,
+concealed his peculation by false bonds, and afterwards attempted to
+cover it by the cobwebs of the law, then my Lord Coke would have
+trespassed a great deal more against decorum than against propriety of
+similitude and metaphor.
+
+My Lords, the Managers for the Commons have not used any _inapplicable_
+language. We have indeed used, and will again use, such expressions as
+are proper to portray guilt. After describing the magnitude of the
+crime, we describe the magnitude of the criminal. We have declared him
+to be not only a public robber himself, but the head of a system of
+robbery, the captain-general of the gang, the chief under whom a whole
+predatory band was arrayed, disciplined, and paid. This, my Lords, is
+what we offered to prove fully to you, what in part we have proved, and
+the whole of which I believe we could prove. In developing such a mass
+of criminality and in describing a criminal of such magnitude as we
+have now brought before you, we could not use lenient epithets without
+compromising with crime. We therefore shall not relax in our pursuits
+nor in our language. No, my Lords, no! we shall not fail to feel
+indignation, wherever our moral nature has taught us to feel it; nor
+shall we hesitate to speak the language which is dictated by that
+indignation. Whenever men are oppressed where they ought to be
+protected, we called [call?] it tyranny, and we call the actor a tyrant.
+Whenever goods are taken by violence from the possessor, we call it a
+robbery, and the person who takes it we call a robber. Money
+clandestinely taken from the proprietor we call theft, and the person
+who takes it we call a thief. When a false paper is made out to obtain
+money, we call the act a forgery. That steward who takes bribes from his
+master's tenants, and then, pretending the money to be his own, lends it
+to that master and takes bonds for it to himself, we consider guilty of
+a breach of trust; and the person who commits such crimes we call a
+cheat, a swindler, and a forger of bonds. All these offences, without
+the least softening, under all these names, we charge upon this man. We
+have so charged in our record, we have so charged in our speeches; and
+we are sorry that our language does not furnish terms of sufficient
+force and compass to mark the multitude, the magnitude, and the atrocity
+of his crimes.
+
+How came it, then, that the Commons of Great Britain should be
+calumniated for the course which they have taken? Why should it ever
+have been supposed that we are actuated by revenge? I answer, There are
+two very sufficient causes: corruption and ignorance. The first disposes
+an innumerable multitude of people to a fellow-feeling with the
+prisoner. Under the shadow of his crimes thousands of fortunes have been
+made; and therefore thousands of tongues are employed to justify the
+means by which these fortunes were made. When they cannot deny the
+facts, they attack the accusers,--they attack their conduct, they attack
+their persons, they attack their language, in every possible manner. I
+have said, my Lords, that ignorance is the other cause of this calumny
+by which the House of Commons is assailed. Ignorance produces a
+confusion of ideas concerning the decorum of life, by confounding the
+rules of private society with those of public function. To talk, as we
+here talk, to persons in a mixed company of men and women, would violate
+the law of such societies; because they meet for the sole purpose of
+social intercourse, and not for the exposure, the censure, the
+punishment of crimes: to all which things private societies are
+altogether incompetent. In them crimes can never be regularly stated,
+proved, or refuted. The law has therefore appointed special places for
+such inquiries; and if in any of those places we were to apply the
+emollient language of drawing-rooms to the exposure of great crimes, it
+would be as false and vicious in taste and in morals as to use the
+criminatory language of this hall in drawing and assembling rooms would
+be misplaced and ridiculous. Every one knows that in common society
+palliating names are given to vices. Adultery in a lady is called
+gallantry; the gentleman is commonly called a man of good fortune,
+sometimes in French and sometimes in English. But is this the tone which
+would become a person in a court of justice, calling these people to an
+account for that horrible crime which destroys the basis of society?
+No, my Lords, this is not the tone of such proceedings. Your Lordships
+know that it is not; the Commons know that it is not; and because we
+have acted on that knowledge, and stigmatized crimes with becoming
+indignation, we are said to be actuated rather by revenge than justice.
+
+If it should still be asked why we show sufficient acrimony to excite a
+suspicion of being in any manner influenced by malice or a desire of
+revenge, to this, my Lords, I answer, Because we would be thought to
+know our duty, and to have all the world know how resolutely we are
+resolved to perform it. The Commons of Great Britain are not disposed to
+quarrel with the Divine Wisdom and Goodness, which has moulded up
+revenge into the frame and constitution of man. He that has made us what
+we are has made us at once resentful and reasonable. Instinct tells a
+man that he ought to revenge an injury; reason tells him that he ought
+not to be a judge in his own cause. From that moment revenge passes from
+the private to the public hand; but in being transferred it is far from
+being extinguished. My Lords, it is transferred as a sacred trust to be
+exercised for the injured, in measure and proportion, by persons who,
+feeling as he feels, are in a temper to reason better than he can
+reason. Revenge is taken out of the hands of the original injured
+proprietor, lest it should be carried beyond the bounds of moderation
+and justice. But, my Lords, it is in its transfer exposed to a danger of
+an opposite description. The delegate of vengeance may not feel the
+wrong sufficiently: he may be cold and languid in the performance of his
+sacred duty. It is for these reasons that good men are taught to
+tremble even at the first emotions of anger and resentment for their own
+particular wrongs; but they are likewise taught, if they are well
+taught, to give the loosest possible rein to their resentment and
+indignation, whenever their parents, their friends, their country, or
+their brethren of the common family of mankind are injured. Those who
+have not such feelings, under such circumstances, are base and
+degenerate. These, my Lords, are the sentiments of the Commons of Great
+Britain.
+
+Lord Bacon has very well said, that "revenge is a kind of wild justice."
+It is so, and without this wild austere stock there would be no justice
+in the world. But when, by the skilful hand of morality and wise
+jurisprudence, a foreign scion, but of the very same species, is grafted
+upon it, its harsh quality becomes changed, it submits to culture, and,
+laying aside its savage nature, it bears fruits and flowers, sweet to
+the world, and not ungrateful even to heaven itself, to which it
+elevates its exalted head. The fruit of this wild stock is revenge
+regulated, but not extinguished,--revenge transferred from the suffering
+party to the communion and sympathy of mankind. This is the revenge by
+which we are actuated, and which we should be sorry, if the false, idle,
+girlish, novel-like morality of the world should extinguish in the
+breast of us who have a great public duty to perform.
+
+This sympathetic revenge, which is condemned by clamorous imbecility, is
+so far from being a vice, that it is the greatest of all possible
+virtues,--a virtue which the uncorrupted judgment of mankind has in all
+ages exalted to the rank of heroism. To give up all the repose and
+pleasures of life, to pass sleepless nights and laborious days, and,
+what is ten times more irksome to an ingenuous mind, to offer oneself to
+calumny and all its herd of hissing tongues and poisoned fangs, in order
+to free the world from fraudulent prevaricators, from cruel oppressors,
+from robbers and tyrants, has, I say, the test of heroic virtue, and
+well deserves such a distinction. The Commons, despairing to attain the
+heights of this virtue, never lose sight of it for a moment. For
+seventeen years they have, almost without intermission, pursued, by
+every sort of inquiry, by legislative and by judicial remedy, the cure
+of this Indian malady, worse ten thousand times than the leprosy which
+our forefathers brought from the East. Could they have done this, if
+they had not been actuated by some strong, some vehement, some perennial
+passion, which, burning like the Vestal fire, chaste and eternal, never
+suffers generous sympathy to grow cold in maintaining the rights of the
+injured or in denouncing the crimes of the oppressor?
+
+My Lords, the Managers for the Commons have been actuated by this
+passion; my Lords, they feel its influence at this moment; and so far
+from softening either their measures or their tone, they do here, in the
+presence of their Creator, of this House, and of the world, make this
+solemn declaration, and nuncupate this deliberate vow: that they will
+ever glow with the most determined and unextinguishable animosity
+against tyranny, oppression, and peculation in all, but more
+particularly as practised by this man in India; that they never will
+relent, but will pursue and prosecute him and it, till they see corrupt
+pride prostrate under the feet of justice. We call upon your Lordships
+to join us; and we have no doubt that you will feel the same sympathy
+that we feel, or (what I cannot persuade my soul to think or my mouth to
+utter) you will be identified with the criminal whose crimes you excuse,
+and rolled with him in all the pollution of Indian guilt, from
+generation to generation. Let those who feel with me upon this occasion
+join with me in this vow: if they will not, I have it all to myself.
+
+It is not to defend ourselves that I have addressed your Lordships at
+such length on this subject. No, my Lords, I have said what I considered
+necessary to instruct the public upon the principles which induced the
+House of Commons to persevere in this business with a generous warmth,
+and in the indignant language which Nature prompts, when great crimes
+are brought before men who feel as they ought to feel upon such
+occasions.
+
+       *       *       *       *       *
+
+I now proceed, my Lords, to the next recriminatory charge, which is
+_delay_. I confess I am not astonished at this charge. From the first
+records of human impatience down to the present time, it has been
+complained that the march of violence and oppression is rapid, but that
+the progress of remedial and vindictive justice, even the divine, has
+almost always favored the appearance of being languid and sluggish.
+Something of this is owing to the very nature and constitution of human
+affairs; because, as justice is a circumspect, cautious, scrutinizing,
+balancing principle, full of doubt even of itself, and fearful of doing
+wrong even to the greatest wrong-doers, in the nature of things its
+movements must be slow in comparison with the headlong rapidity with
+which avarice, ambition, and revenge pounce down upon the devoted prey
+of those violent and destructive passions. And indeed, my Lords, the
+disproportion between crime and justice, when seen in the particular
+acts of either, would be so much to the advantage of crimes and
+criminals, that we should find it difficult to defend laws and
+tribunals, (especially in great and arduous cases like this,) if we did
+not look, not to the _immediate_, not to the _retrospective_, but to the
+_provident_ operation of justice. Its chief operation is in its future
+example; and this turns the balance, upon the total effect, in favor of
+vindictive justice, and in some measure reconciles a pious and humble
+mind to this great mysterious dispensation of the world.
+
+Upon the charge of delay in this particular cause, my Lords, I have only
+to say that the business before you is of immense magnitude. The
+prisoner himself says that all the acts of his life are committed in it.
+With a due sense of this magnitude, we know that the investigation could
+not be short to us, nor short to your Lordships; but when we are called
+upon, as we have been daily, to sympathize with the prisoner in that
+delay, my Lords, we must tell you that we have no sympathy with him.
+Rejecting, as we have done, all false, spurious, and hypocritical
+virtues, we should hold it to be the greatest of all crimes to bestow
+upon the oppressors that pity which belongs to the oppressed. The
+unhappy persons who are wronged, robbed, and despoiled have no remedy
+but in the sympathies of mankind; and when these sympathies are suffered
+to be debauched, when they are perversely carried from the victim to the
+oppressor, then we commit a robbery still greater than that which was
+committed by the criminal accused.
+
+My Lords, we do think this process long; we lament it in every sense in
+which it ought to be lamented; but we lament still more that the Begums
+have been so long without having a just punishment inflicted upon their
+spoiler. We lament that Cheyt Sing has so long been a wanderer, while
+the man who drove him from his dominions is still unpunished. We are
+sorry that Nobkissin has been cheated of his money for fourteen years,
+without obtaining redress. These are our sympathies, my Lords; and thus
+we reply to this part of the charge.
+
+My Lords, there are some matters of fact in this charge of delay which I
+must beg your Lordships will look into. On the 19th of February, 1789,
+the prisoner presented a petition to your Lordships, in which he states,
+after many other complaints, that a great number of his witnesses were
+obliged to go to India, by which he has lost the benefit of their
+testimony, and that a great number of your Lordships' body were dead, by
+which he has lost the benefit of their judgment. As to the hand of God,
+though some members of your House may have departed this life since the
+commencement of this trial, yet the body always remains entire. The
+evidence before you is the same; and therefore there is no reason to
+presume that your final judgment will be affected by these afflicting
+dispensations of Providence. With regard to his witnesses, I must beg to
+remind your Lordships of one extraordinary fact. This prisoner has sent
+to India, and obtained, not testimonies, but testimonials to his general
+good behavior. He has never once applied, by commission or otherwise, to
+falsify any one fact that is charged upon, him,--no, my Lords, not one.
+Therefore that part of his petition which states the injury he has
+received from the Commons of Great Britain is totally false and
+groundless. For if he had any witnesses to examine, he would not have
+failed to examine them; if he had asked for a commission to receive
+their depositions, a commission would have been granted; if, without a
+commission, he had brought affidavits to facts, or regular recorded
+testimony, the Commons of Great Britain would never have rejected such
+evidence, even though they could not have cross-examined it.
+
+Another complaint is, that many of his witnesses were obliged to leave
+England before he could make use of their evidence. My Lords, no delay
+in the trial has prevented him from producing any evidence; for we were
+willing that any of his witnesses should be examined at any time most
+convenient to himself. If many persons connected with his measures are
+gone to India, during the course of his trial, many others have returned
+to England. Mr. Larkins returned. Was the prisoner willing to examine
+him? No: and it was nothing but downright shame, and the presumptions
+which he knew would be drawn against him, if he did not call this
+witness, which finally induced him to make use of his evidence. We
+examined Mr. Larkins, my Lords; we examined all the prisoner's
+witnesses; your Lordships have their testimony; and down to this very
+hour he has not put his hand upon any one whom he thought a proper and
+essential witness to the facts, or to any part of the cause, whose
+examination has been denied him; nor has he even stated that any man, if
+brought here, would prove such and such points. No, not one word to this
+effect has ever been stated by the prisoner.
+
+There is, my Lords, another case, which was noticed by my honorable
+fellow Manager yesterday. Mr. Belli, the confidential secretary of the
+prisoner, was agent and contractor for stores; and this raised a
+suspicion that the contracts were held by him for the prisoner's
+advantage. Mr. Belli was here during the whole time of the trial, and
+six weeks after we had closed our evidence. We had then no longer the
+arrangement of the order of witnesses, and he might have called whom he
+pleased. With the full knowledge of these circumstances, that witness
+did he suffer to depart for India, if he did not even encourage his
+departure. This, my Lords, is the kind of damage which he has suffered
+by the want of witnesses, through the protraction of this trial.
+
+But the great and serious evil which he complains of, as being
+occasioned by our delay, is of so extraordinary a nature that I must
+request your Lordships to examine it with extraordinary strictness and
+attention. In the petition before your Lordships, the prisoner asserts
+that he was under the necessity, through his counsel and solicitors, "of
+collecting and collating from the voluminous records of the Company the
+whole history of his public life, in order to form a complete defence to
+every allegation which the Honorable House of Commons had preferred
+against him, and that he has expended upwards of thirty thousand pounds
+in preparing the materials of his defence."
+
+It is evident, my Lords, that the expenditure of this thirty thousand
+pounds is not properly connected with the delay of which he complains;
+for he states that he had incurred this loss merely in collecting and
+collating materials, previous to his defence before your Lordships. If
+this were true, and your Lordships were to admit the amount as a rule
+and estimate by which the aggregate of his loss could be ascertained,
+the application of the rule of three to the sum and time given would
+bring out an enormous expenditure in the long period which has elapsed
+since the commencement of the trial,--so enormous, that, if this
+monstrous load of oppression has been laid upon him by the delay of the
+Commons, I believe no man living can stand up in our justification. But,
+my Lords, I am to tell your Lordships some facts, into which we trust
+_you_, will inquire: for this business is not in our hands, nor can we
+lay it as a charge before you. Your own Journals have recorded the
+document, in which the prisoner complains bitterly of the House of
+Commons, and indeed of the whole judicature of the country,--a complaint
+which your Lordships will do well to examine.
+
+When we first came to a knowledge of this petition, which was not till
+some time after it was presented, I happened to have conversation with a
+noble lord,--I know not whether he be in his place in the House or not,
+but I think I am not irregular in mentioning his name. When I mention
+Lord Suffolk, I name a peer whom honor, justice, veracity, and every
+virtue that distinguishes the man and the peer would claim for their
+own. My Lord Suffolk told me, that, in a conversation with the late Lord
+Dover, who brought the prisoner's petition into your House, he could not
+refrain from expressing his astonishment at that part of the petition
+which related to the expense Mr. Hastings had been at; and particularly
+as a complaint had been made in the House of the enormous expense of the
+prosecution, which at that time had only amounted to fourteen thousand
+pounds, although the expense of the prosecutor is generally greater than
+that of the defendant, and public proceedings more expensive than
+private ones. Lord Dover said, that, before he presented the petition,
+he had felt exactly in the same manner; but that Mr. Hastings assured
+him that six thousand pounds had been paid to copying clerks in the
+India House, and that from this circumstance he might judge of the other
+expenses. Lord Dover was satisfied with this assurance, and presented
+the petition, which otherwise he should have declined to do, on account
+of the apparent enormity of the allegation it contained. At the time
+when Lord Suffolk informed me of these particulars, (with a good deal of
+surprise and astonishment,) I had not leisure to go down to the India
+House in order to make inquiries concerning them, but I afterwards asked
+the Secretary, Mr. Hudson, to whom _we_ had given a handsome reward,
+what sums he had received from Mr. Hastings for his services upon this
+occasion, and the answer was, "Not one shilling." Not one shilling had
+Mr. Hudson received from Mr. Hastings. The clerks of the Company
+informed us that the Court of Directors had ordered that every paper
+which Mr. Hastings wanted should be copied for him gratuitously,--and
+that, if any additional clerks were wanting for the effectual execution
+of his wishes, the expense would be defrayed by the Directors. Hearing
+this account, I next inquired what _expedition money_ might have been
+given to the clerks: for we know something of this kind is usually done.
+In reply to this question, Mr. Hudson told me that at various times they
+had received in little driblets to the amount of ninety-five pounds, or
+thereabouts. In this way the account stood when I made this inquiry,
+which was at least half a year after the petition had been presented to
+your Lordships. Thus the whole story of the six thousand pounds was
+absolutely false. At that time there was not one word of truth in it,
+whatever be the amount of the sums which he has paid since. Your
+Lordships will now judge whether you have been abused by false
+allegations or not,--allegations which could scarcely admit of being
+true, and which upon the best inquiry I found absolutely false; and I
+appeal to the testimony of the noble lord, who is now living, for the
+truth of the account he received from the worthy and respectable peer
+whose loss the nation has to bewail.
+
+There are many other circumstances of fraud and falsehood attending this
+petition, (we must call things by their proper names, my Lords,)--there
+are, I say, many circumstances of fraud and falsehood. We know it to
+have been impossible, at the time of presenting this petition, that this
+man should have expended thirty thousand pounds in the preparation of
+materials for his defence; and your Lordships' justice, together with
+the credit of the House of Commons, are concerned in the discovery of
+the truth. There is, indeed, an ambiguous word in the petition. He
+asserts that he is _engaged_ for the payment of that sum. We asked the
+clerks of the India House whether he had given them any bond, note,
+security, or promise of payment: they assured us that he had not: they
+will be ready to make the same assurance to your Lordships, when you
+come to inquire into this matter, which before you give judgment we
+desire and claim that you will do. All is concealment and mystery on the
+side of the prisoner; all is open and direct with us. We are desirous
+that everything which is concealed may be brought to light.
+
+In contradiction, then, to this charge of oppression and of an attempt
+to ruin his fortune, your Lordships will see that at the time when he
+made this charge he had not been, in fact, nor was for a long time
+after, one shilling out of pocket. But some other person had become
+security to his attorney for him. What, then, are we to think of these
+men of business, of these friends of Mr. Hastings, who, when he is
+possessed of nothing, are contented to become responsible for thirty
+thousand pounds, (was it thirty thousand pounds out of the bullock
+contracts?)--responsible, I say, for this sum, in order to maintain this
+suit previous to its actual commencement, and who consequently must be
+so engaged for every article of expense that has followed from that time
+to this?
+
+Thus much we have thought it necessary to say upon this part of the
+recriminatory charge of delay. With respect to the delay in general, we
+are at present under an account to our constituents upon that subject.
+To them we shall give it. We shall not give any further account of it to
+your Lordships. The means belong to us as well as to you of removing
+these charges. Your Lordships may inquire upon oath, as we have done in
+our committee, into all the circumstances of these allegations. I hope
+your Lordships will do so, and will give the Commons an opportunity of
+attending and assisting at this most momentous and important inquiry.
+
+       *       *       *       *       *
+
+The next recriminatory charge made upon us by the prisoner is, that,
+merely to throw an odium upon him, we have brought forward a great deal
+of irrelevant matter, which could not be proved regularly in the course
+of examination at your bar, and particularly in the opening speech,
+which I had the honor of making on the subject.
+
+Your Lordships know very well that we stated in our charge that great
+abuses had prevailed in India, that the Company had entered into
+covenants with their servants respecting those abuses, that an act of
+Parliament was made to prevent their recurrence, and that Mr. Hastings
+still continued in their practice. Now, my Lords, having stated this,
+nothing could be more regular, more proper, and more pertinent, than for
+us to justify both the covenants required by the Company and the act
+made to prevent the abuses which existed in India. We therefore went
+through those abuses; we stated them, and were ready to prove every
+material word and article in them. Whether they were personally relevant
+or irrelevant to the prisoner we cared nothing. We were to make out from
+the records of the House (which records I can produce, whenever I am
+called upon for them) all these articles of abuse and grievance; and we
+have stated these abuses as the grounds of the Company's provisional
+covenants with its servants, and of the act of Parliament. We have
+stated them under two heads, violence and corruption: for these crimes
+will be found, my Lords, in almost every transaction with the native
+powers; and the prisoner is directly or indirectly involved in every
+part of them. If it be still objected, that these crimes are irrelevant
+to the charge, we answer, that we did not introduce them as matter of
+charge. We say they were not irrelevant to the proof of the preamble of
+our charge, which preamble is perfectly relevant in all its parts. That
+the matters stated in it are perfectly true we vouch the House of
+Commons, we vouch the very persons themselves who were concerned in the
+transactions. When Arabic authors are quoted, and Oriental tales told
+about _flashes of lightning_ and _three seals_, we quote the very
+parties themselves giving this account of their own conduct to a
+committee of the House of Commons.
+
+Your Lordships will remember that a most reverend prelate, who cannot be
+named without every mark of respect and attention, conveyed a petition
+to your Lordships from a gentleman concerned in one of those narratives.
+Upon your Lordships' table that petition still lies. For the production
+of this narrative we are not answerable to this House; your Lordships
+could not make us answerable to him; but we are answerable to our own
+House, we are answerable to our own honor, we are answerable to all the
+Commons of Great Britain for whatever we have asserted in their name.
+Accordingly, General Burgoyne, then a member of this Committee of
+Managers, and myself, went down into the House of Commons; we there
+restated the whole affair; we desired that an inquiry should be made
+into it, at the request of the parties concerned. But, my Lords, they
+have never asked for inquiry from that day to this. Whenever he or they
+who are criminated (not by us, but in this volume of Reports that is in
+my hand) desire it, the House will give them all possible satisfaction
+upon the subject.
+
+A similar complaint was made to the House of Commons by the prisoner,
+that matters irrelevant to the charge were brought up hither. Was it not
+open to him, and has he had no friends in the House of Commons, to call
+upon the House, during the whole period of this proceeding, to examine
+into the particulars adduced in justification of the preamble of the
+charge against him, in justification of the covenants of the Company, in
+justification of the act of Parliament? It was in his power to do it; it
+is in his power still; and if it be brought before that tribunal, to
+which I and my fellow Managers are alone accountable, we will lay before
+that tribunal such matters as will sufficiently justify our mode of
+proceeding, and the resolution of the House of Commons. I will not,
+therefore, enter into the particulars (because they cannot be entered
+into by your Lordships) any further than to say, that, if we had ever
+been called upon to prove the allegations which we have made, not in the
+nature of a charge, but as bound in duty to this Court, and in justice
+to ourselves, we should have been ready to enter into proof. We offered
+to do so, and we now repeat the offer.
+
+       *       *       *       *       *
+
+There was another complaint in the prisoner's petition, which did not
+apply to the words of the preamble, but to an allegation in the charge
+concerning abuses in the revenue, and the ill consequences which arose
+from them. I allude to those shocking transactions, which nobody can
+mention without horror, in Rampore and Dinagepore, during the government
+of Mr. Hastings, and which we attempted to bring home to him. What did
+he do in this case? Did he endeavor to meet these charges fairly, as he
+might have done? No, my Lords: what he said merely amounted to
+this:--"Examination into these charges would vindicate my reputation
+before the world; but I, who am the guardian of my own honor and my own
+interests, choose to avail myself of the rules and orders of this
+House, and I will not suffer you to enter upon that examination."
+
+My Lords, we admit, you are the interpreters of your own rules and
+orders. We likewise admit that our own honor may be affected by the
+character of the evidence which we produce to you. But, my Lords, they
+who withhold their defence, who suffer themselves, as they say, to be
+cruelly criminated by unjust accusation, and yet will not permit the
+evidence of their guilt or innocence to be produced, are themselves the
+causes of the irrelevancy of all these matters. It cannot justly be
+charged on us; for we have never offered any matter here which we did
+not declare our readiness upon the spot to prove. Your Lordships did not
+think fit to receive that proof. We do not now censure your Lordships
+for your determination: that is not the business of this day. We refer
+to your determination for the purpose of showing the falsehood of the
+imputation which the prisoner has cast upon us, of having oppressed him
+by delay and irrelevant matter. We refer to it in order to show that the
+oppression rests with himself, that it is all his own.
+
+Well, but Mr. Hastings complained also to the House of Commons. Has he
+pursued the complaint? No, he has not; and yet this prisoner, and these
+gentlemen, his learned counsel, have dared to reiterate their complaints
+of us at your Lordships' bar, while we have always been, and still are,
+ready to prove both the atrocious nature of the facts, and that they are
+_referable_ to the prisoner at your bar. To this, as I have said before,
+the prisoner has objected; this we are not permitted to do by your
+Lordships: and therefore, without presuming to blame your
+determination, I repeat, that we throw the blame directly upon himself,
+when he complains that his private character suffers without the means
+of defence, since he objects to the use of means of defence which are at
+his disposal.
+
+Having gone through this part of the prisoner's recriminatory charge, I
+shall close my observations on his demeanor, and defer my remarks on his
+complaint of our ingratitude until we come to consider his set-off of
+services.
+
+       *       *       *       *       *
+
+The next subject for your Lordships' consideration is the principle of
+the prisoner's defence. And here we must observe, that, either by
+confession or conviction, we are possessed of the facts, and perfectly
+agreed upon the matter at issue between us. In taking a view of the laws
+by which you are to judge, I shall beg leave to state to you upon what
+principles of law the House of Commons has criminated him, and upon what
+principles of law, or pretended law, he justifies himself: for these are
+the matters at issue between us; the matters of fact, as I have just
+said, being determined either by confession on his part or by proof on
+ours.
+
+My Lords, we acknowledge that Mr. Hastings was invested with
+discretionary power; but we assert that he was bound to use that power
+according to the established rules of political morality, humanity, and
+equity. In all questions relating to foreign powers he was bound to act
+under the Law of Nature and under the Law of Nations, as it is
+recognized by the wisest authorities in public jurisprudence; in his
+relation to this country he was bound to act according to the laws and
+statutes of Great Britain, either in their letter or in their spirit;
+and we affirm, that in his relation to the people of India he was bound
+to act according to the largest and most liberal construction of their
+laws, rights, usages, institutions, and good customs; and we furthermore
+assert, that he was under an express obligation to yield implicit
+obedience to the Court of Directors. It is upon these rules and
+principles the Commons contend that Mr. Hastings ought to have regulated
+his government; and not only Mr. Hastings, but all other governors. It
+is upon these rules that he is responsible; and upon these rules, and
+these rules only, your Lordships are to judge.
+
+My Lords, long before the Committee had resolved upon this impeachment,
+we had come, as I have told your Lordships, to forty-five resolutions,
+every one criminatory of this man, every one of them bottomed upon the
+principles which I have stated. We never will nor can we abandon them;
+and we therefore do not supplicate your Lordships upon this head, but
+claim and demand of right, that you will judge him upon those
+principles, and upon no other. If once they are evaded, you can have no
+rule for your judgment but your caprices and partialities.
+
+Having thus stated the principles upon which the Commons hold him and
+all governors responsible, and upon which we have grounded our
+impeachment, and which must be the grounds of your judgment, (and your
+Lordships will not suffer any other ground to be mentioned to you,) we
+will now tell you what are the grounds of his defence.
+
+He first asserts, that he was possessed of an arbitrary and despotic
+power, restrained by no laws but his own will. He next says, that "the
+rights of the people he governed in India are nothing, and that the
+rights of the government are everything." The people, he asserts, have
+no liberty, no laws, no inheritance, no fixed property, no descendable
+estate, no subordinations in society, no sense of honor or of shame, and
+that they are only affected by punishment so far as punishment is a
+corporal infliction, being totally insensible of any difference between
+the punishment of man and beast. These are the principles of his Indian
+government, which Mr. Hastings has avowed in their full extent. Whenever
+precedents are required, he cites and follows the example of avowed
+tyrants, of Aliverdy Khan, Cossim Ali Khan, and Sujah Dowlah. With an
+avowal of these principles he was pleased first to entertain the House
+of Commons, the _active_ assertors and conservators of the rights,
+liberties, and laws of his country; and then to insist upon them more
+largely and in a fuller detail before this awful tribunal, the _passive_
+judicial conservator of the same great interests. He has brought out
+these blasphemous doctrines in this great temple of justice, consecrated
+to law and equity for a long series of ages. He has brought them forth
+in Westminster Hall, in presence of all the Judges of the land, who are
+to execute the law, and of the House of Lords, who are bound as its
+guardians not to suffer the words "arbitrary power" to be mentioned
+before them. For I am not again to tell your Lordships, that arbitrary
+power is treason in the law,--that to mention it with law is to commit a
+contradiction in terms. They cannot exist in concert; they cannot hold
+together for a moment.
+
+Let us now hear what the prisoner says. "The sovereignty which they [the
+subahdars, or viceroys of the Mogul empire] assumed, it fell to my lot,
+very unexpectedly, to exert; and whether or not such power, or powers of
+that nature, were delegated to me by any provisions of any act of
+Parliament I confess myself too little of a lawyer to pronounce. I only
+know that the acceptance of the sovereignty of Benares, &c., is not
+acknowledged or admitted by any act of Parliament; and yet, by the
+particular interference of the majority of the Council, the Company is
+clearly and indisputably seized of that sovereignty. If, therefore, the
+_sovereignty_ of Benares, as ceded to us by the Vizier, have _any rights
+whatever_ annexed to it, and be not a mere empty word without meaning,
+those rights must be such as are held, countenanced, and established by
+the law, custom, and usage of the Mogul empire, and not by the
+provisions of any British act of Parliament hitherto enacted. _Those
+rights_, and none other, I have been the involuntary instrument of
+enforcing. And if any future act of Parliament shall positively or by
+implication tend to annihilate those very rights, or their exertion, as
+I have exerted them, I much fear that the boasted sovereignty of
+Benares, which was held up as an acquisition almost obtruded on the
+Company against my consent and opinion, (for I acknowledge that even
+then I foresaw many difficulties and inconveniences in its future
+exercise,)--I fear, I say, that this sovereignty will be found a burden
+instead of a benefit, a heavy clog rather than a precious gem to its
+present possessors: I mean, unless the whole of our territory in that
+quarter shall be rounded and made an uniform compact body by one grand
+and systematic arrangement,--such an arrangement as shall do away all
+the mischiefs, doubts, and inconveniences (both to the governors and
+the governed) arising from the variety of tenures, rights, and claims in
+all cases of landed property and feudal jurisdiction in India, from the
+informality, invalidity, and instability of all engagements in so
+divided and unsettled a state of society, and from the unavoidable
+anarchy and confusion of different laws, religions, and prejudices,
+moral, civil, and political, all jumbled together in one unnatural and
+discordant mass. Every part of Hindostan has been constantly exposed to
+these and similar disadvantages ever since the Mahometan conquests. The
+Hindoos, who never incorporated with their conquerors, were kept in
+order only by the strong hand of power. The constant necessity of
+similar exertions would increase at once their energy and extent. So
+that rebellion itself is the parent and promoter of _despotism_.
+Sovereignty in India implies nothing else. For I know not how we can
+form an estimate of its powers, but from its visible effects; and those
+are everywhere the same from Cabool to Assam. The whole history of Asia
+is nothing more than precedents to prove the invariable exercise of
+arbitrary power. To all this I strongly alluded in the minutes I
+delivered in Council, when the treaty with the new Vizier was on foot in
+1775; and I wished to make Cheyt Sing independent, because in India
+dependence included a thousand evils, many of which I enumerated at that
+time, and they are entered in the ninth clause of the first section of
+this charge. I knew the powers with which an Indian sovereignty is
+armed, and the dangers to which tributaries are exposed. I knew, that,
+from the history of Asia, and from the very nature of mankind, the
+subjects of a despotic empire are always vigilant for the moment to
+rebel, and the sovereign is ever jealous of rebellious intentions. A
+zemindar is an Indian subject, and as such exposed to the common lot of
+his fellows. _The mean and depraved state of a mere zemindar_ is
+therefore this very dependence above mentioned on a despotic government,
+this very proneness to shake off his allegiance, and this very exposure
+to continual danger from his sovereign's jealousy, which are consequent
+on the political state of Hindostanic governments. Bulwant Sing, if he
+had been, and Cheyt Sing, as long as he was, a zemindar, stood exactly
+in this _mean and depraved state_ by the constitution of his country. I
+did not make it for him, but would have secured him from it. Those who
+made him a zemindar entailed upon him the consequences of so mean and
+depraved a tenure. Aliverdy Khan and Cossim Ali fined all their
+zemindars on the necessities of war, and on every pretence either of
+court necessity or court extravagance."
+
+I beseech your Lordships seriously to look upon the whole nature of the
+principles upon which the prisoner defends himself. He appeals to the
+custom and usage of the Mogul empire; and the constitution of that
+empire is, he says, arbitrary power. He says, that he does not know
+whether any act of Parliament bound him not to exercise this arbitrary
+power, and that, if any such act should in future be made, it would be
+mischievous and ruinous to our empire in India. Thus he has at once
+repealed all preceding acts, he has annulled by prospect every future
+act you can make; and it is not in the power of the Parliament of Great
+Britain, without ruining the empire, to hinder his exercising this
+despotic authority. All Asia is by him disfranchised at a stroke. Its
+inhabitants have no rights, no laws, no liberties; their state is mean
+and depraved; they may be fined for any purpose of court extravagance or
+prodigality,--or as Cheyt Sing was fined by him, not only upon every
+war, but upon every pretence of war.
+
+This is the account he gives of his power, and of the people subject to
+the British government in India. We deny that the act of Parliament gave
+him any such power; we deny that the India Company gave him any such
+power, or that they had ever any such power to give; we even deny that
+there exists in all the human race a power to make the government of any
+state dependent upon individual will. We disclaim, we reject all such
+doctrines with disdain and indignation; and we have brought them up to
+your Lordships to be tried at your bar.
+
+What must be the condition of the people of India, governed, as they
+have been, by persons who maintain these principles as maxims of
+government, and not as occasional deviations caused by the irregular
+will of man,--principles by which the whole system of society is to be
+controlled, not by law, reason, or justice, but by the will of one man?
+
+Your Lordships will remark, that not only the whole of the laws, rights,
+and usages, but the very being of the people, are exposed to ruin: for
+Mr. Hastings says, that the people may be fined, that they may be
+exiled, that they may be imprisoned, and that even their lives are
+dependent upon the mere will of their foreign master; and that he, the
+Company's Governor, exercised that will under the authority of this
+country. Remark, my Lords, his application of this doctrine. "I would,"
+he says, "have kept Cheyt Sing from the consequences of this dependence,
+by making him independent, and not in any manner subjecting him to our
+government. The moment he came into a state of dependence upon the
+British government, all these evils attached upon him.--It is," he adds,
+"disagreeable to me to exert such powers; but I know they must be
+exerted; and I declare there is no security from this arbitrary power,
+but by having nothing to do with the British government."
+
+My Lords, the House of Commons has already well considered what may be
+our future moral and political condition, when the persons who come from
+that school of pride, insolence, corruption, and tyranny are more
+intimately mixed up with us of purer morals. Nothing but contamination
+can be the result, nothing but corruption can exist in this country,
+unless we expunge this doctrine out of the very hearts and souls of the
+people. It is not to the gang of plunderers and robbers of which I say
+this man is at the head, that we are only, or indeed principally, to
+look. Every man in Great Britain will be contaminated and must be
+corrupted, if you let loose among us whole legions of men, generation
+after generation, tainted with these abominable vices, and avowing these
+detestable principles. It is, therefore, to preserve the integrity and
+honor of the Commons of Great Britain, that we have brought this man to
+your Lordships' bar.
+
+When these matters were first explained to your Lordships, and strongly
+enforced by abilities greater than I can exert, there was something like
+compunction shown by the prisoner: but he took the most strange mode to
+cover his guilt. Upon the cross-examination of Major Scott, he
+discovered all the engines of this Indian corruption. Mr. Hastings got
+that witness to swear that this defence of his, from which the passages
+I have read to your Lordships are extracted, was not his, but that it
+was the work of his whole Council, composed of Mr. Middleton, Mr. Shore,
+Mr. Halhed, Mr. Baber,--the whole body of his Indian Cabinet Council;
+that this was their work, and not his; and that he disclaimed it, and
+therefore that it would be wrong to press it upon him. Good God! my
+Lords, what shall we say in this stage of the business? The prisoner put
+in an elaborate defence: he now disclaims that defence. He told us that
+it was of his own writing, that he had been able to compose it in five
+days; and he now gets five persons to contradict his own assertions, and
+to disprove on oath his most solemn declarations.
+
+My Lords, this business appears still more alarming, when we find not
+only Mr. Hastings, but his whole Council, engaged in it. I pray your
+Lordships to observe, that Mr. Halhed, a person concerned with Mr.
+Hastings in compiling a code of Gentoo laws, is now found to be one of
+the persons to whom this very defence is attributed which contains such
+detestable and abominable doctrines. But are we to consider the contents
+of this paper as the defence of the prisoner or not? Will any one say,
+that, when an answer is sworn to in Chancery, when an answer is given
+here to an impeachment of the Commons, or when a plea is made to an
+indictment, that it is drawn by the defendant's counsel, and therefore
+is not his? Did we not all hear him read this defence in part at our
+bar?--did we not see him hand it to his secretary to have it read by his
+son?--did he not then hear it read from end to end?--did not he himself
+desire it to be printed, (for it was no act of ours,) and did he not
+superintend and revise the press?--and has any breath but his own
+breathed upon it? No, my Lords, the whole composition is his, by writing
+or adoption; and never, till he found it pressed him in this House,
+never, till your Lordships began to entertain the same abhorrence of it
+that we did, did he disclaim it.
+
+But mark another stage of the propagation of these horrible principles.
+After having grounded upon them the defence of his conduct against our
+charge, and after he had got a person to forswear them for him, and to
+prove him to have told falsehoods of the grossest kind to the House of
+Commons, he again adheres to this defence. The dog returned to his
+vomit. After having vomited out his vile, bilious stuff of arbitrary
+power, and afterwards denied it to be his, he gets his counsel in this
+place to resort to the loathsome mess again. They have thought proper,
+my Lords, to enter into an extended series of quotations from books of
+travellers, for the purpose of showing that despotism was the only
+principle of government acknowledged in India,--that the people have no
+laws, no rights, no property movable or immovable, no distinction of
+ranks, nor any sense of disgrace. After citing a long line of travellers
+to this effect, they quote Montesquieu as asserting the same facts,
+declaring that the people of India had no sense of honor, and were only
+sensible of the whip as far as it produced corporal pain. They then
+proceed to state that it was a government of misrule, productive of no
+happiness to the people, and that it so continued until subverted by the
+free government of Britain,--namely, the government that Mr. Hastings
+describes as having himself exercised there.
+
+My Lords, if the prisoner can succeed in persuading us that these people
+have no laws, no rights, not even the common sentiments and feeling of
+men, he hopes your interest in them will be considerably lessened. He
+would persuade you that their sufferings are much assuaged by their
+being nothing new,--and that, having no right to property, to liberty,
+to honor, or to life, they must be more pleased with the little that is
+left to them than grieved for the much that has been ravished from them
+by his cruelty and his avarice. This inference makes it very necessary
+for me, before I proceed further, to make a few remarks upon this part
+of the prisoner's conduct, which your Lordships must have already felt
+with astonishment, perhaps with indignation. This man, who passed
+twenty-five years in India, who was fourteen years at the head of his
+government, master of all the offices, master of all the registers and
+records, master of all the lawyers and priests of all this empire, from
+the highest to the lowest, instead of producing to you the fruits of so
+many years' local and official knowledge upon that subject, has called
+out a long line of the rabble of travellers to inform you concerning the
+objects of his own government. That his learned counsel should be
+ignorant of those things is a matter of course. That, if left to
+himself, the person who has produced all this stuff should, in pursuit
+of his darling arbitrary power, wander without a guide, or with false
+guides, is quite natural. But your Lordships must have heard with
+astonishment, that, upon points of law relative to the tenure of lands,
+instead of producing any law document or authority on the usages and
+local customs of the country, he has referred to officers in the army,
+colonels of artillery and engineers, to young gentlemen just come from
+school, not above three or four years in the country. Good God! would
+not one rather have expected to hear him put all these travellers to
+shame by the authority of a man who had resided so long in the supreme
+situation of government,--to set aside all these wild, loose, casual,
+and silly observations of travellers and theorists? On the contrary, as
+if he was ignorant of everything, as if he knew nothing of India, as if
+he had dropped from the clouds, he cites the observations of every
+stranger who had been hurried in a palanquin through the country,
+capable or incapable of observation, to prove to you the nature of the
+government, and of the power he had to exercise.
+
+My Lords, the Commons of Great Britain are not disposed to resort to the
+ridiculous relations of travellers, or to the wild systems which
+ingenious men have thought proper to build on their authority. We will
+take another mode. We will undertake to prove the direct contrary of his
+assertions in every point and particular. We undertake to do this,
+because your Lordships know, and because the world knows, that, if you
+go into a country where you suppose man to be in a servile
+state,--where, the despot excepted, there is no one person who can lift
+up his head above another,--where all are a set of vile, miserable
+slaves, prostrate and confounded in a common servitude, having no
+descendible lands, no inheritance, nothing that makes man feel proud of
+himself, or that gives him honor and distinction with others,--this
+abject degradation will take from you that kind of sympathy which
+naturally attaches you to men feeling like yourselves, to men who have
+hereditary dignities to support, and lands of inheritance to maintain,
+as you peers have; you will, I say, no longer have that feeling which
+you ought to have for the sufferings of a people whom you suppose to be
+habituated to their sufferings and familiar with degradation. This makes
+it absolutely necessary for me to refute every one of these
+misrepresentations; and whilst I am endeavoring to establish the rights
+of these people, in order to show in what manner and degree they have
+been violated, I trust that your Lordships will not think that the time
+is lost: certainly I do not think that my labor will be misspent in
+endeavoring to bring these matters fully before you.
+
+In determining to treat this subject at length, I am also influenced by
+a strong sense of the evils that have attended the propagation of these
+wild, groundless, and pernicious opinions. A young man goes to India
+before he knows much of his own country; but he cherishes in his breast,
+as I hope every man will, a just and laudable partiality for the laws,
+liberties, rights, and institutions of his own nation. We all do this;
+and God forbid we should not prefer our own to every other country in
+the world! but if we go to India with an idea of the mean, degraded
+state of the people that we are to govern, and especially if we go with
+these impressions at an immature age, we know, that, according to the
+ordinary course of human nature, we shall not treat persons well whom we
+have learnt to despise. We know that people whom we suppose to have
+neither laws or rights will not be treated by us as a people who have
+laws and rights. This error, therefore, for our sake, for your sake, for
+the sake of the Indian public, and for the sake of all those who shall
+hereafter go in any station to India, I think it necessary to disprove
+in every point.
+
+I mean to prove the direct contrary of everything that has been said on
+this subject by the prisoner's counsel, or by himself. I mean to prove
+that the people of India have laws, rights, and immunities; that they
+have property, movable and immovable, descendible as well as occasional;
+that they have property held for life, and that they have it as well
+secured to them by the laws of their country as any property is secured
+in this country; that they feel for honor, not only as much as your
+Lordships can feel, but with a _more_ exquisite and poignant sense than
+any people upon earth; and that, when punishments are inflicted, it is
+not the lash they feel, but the disgrace: in short, I mean to prove that
+every word which Montesquieu has taken from idle and inconsiderate
+travellers is absolutely false.
+
+The people of India are divided into three kinds: the original natives
+of the country, commonly called Gentoos; the descendants of the Persians
+and Arabians, who are Mahometans; and the descendants of the Moguls, who
+originally had a religion of their own, but are now blended with the
+other inhabitants.
+
+The primeval law of that country is the Gentoo law; and I refer your
+Lordships to Mr. Halhed's translation of that singular code,--a work
+which I have read with all the care that such an extraordinary view of
+human affairs and human constitutions deserves. I do not know whether
+Mr. Halhed's compilation is in evidence before your Lordships, but I do
+know that it is good authority on the Gentoo law. Mr. Hastings, who
+instructed his counsel to assert that the people have "no rights, no
+law," ought to be well acquainted with this work, because he claimed
+for a while the glory of the compilation, although Nobkissin, as your
+Lordships remember, was obliged to pay the expense. This book, a
+compilation of probably the most ancient laws in the world, if we except
+the Mosaic, has in it the duty of the magistrate and the duty of all
+ranks of subjects most clearly and distinctly ascertained; and I will
+give up the whole cause, if there is, from one end to the other of this
+code, any sort of arbitrary power claimed or asserted on the part of the
+magistrate, or any declaration that the people have no rights of
+property. No: it asserts the direct contrary.
+
+First, the people are divided into classes and ranks, with more accuracy
+of distinction than is used in this country, or in any other country
+under heaven. Every class is divided into families, some of whom are
+more distinguished and more honorable than others; and they all have
+rights, privileges, and immunities belonging to them. Even in cases of
+conquest, no confiscation is to take place. A Brahmin's estate comes by
+descent to him; it is forever descendible to his heirs, if he has heirs;
+and if he has none, it belongs to his disciples, and those connected
+with him in the Brahminical caste. There are other immunities declared
+to belong to this caste, in direct contradiction to what has been
+asserted by the prisoner. In no case shall a Brahmin suffer death; in no
+case shall the property of a Brahmin, male or female, be confiscated for
+crime, or escheat for want of heirs. The law then goes on to other
+castes, and gives to each its property, and distinguishes them with
+great accuracy of discrimination.
+
+Mr. Hastings says that there is no inheritable property among them. Now
+you have only to look at page 27, chapter the second, the title of
+which, is, _Of the Division of Inheritable Property_. There, after going
+through all the nicety of pedigree, it is declared, that, "when a
+father, or grandfather, a great-grandfather, or any relations of that
+nature, decease, or lose their caste, or renounce the world, or are
+desirous to give up their property, their sons, grandsons,
+great-grandsons, and other natural heirs, may divide and assume their
+glebe-lands, orchards, jewels, corals, clothes, furniture, cattle, and
+birds, and all the estate, real and personal." My Lords, this law
+recognizes this kind of property; it regulates it with the nicest
+accuracy of distinction; it settles the descent of it in every part and
+circumstance. It nowhere asserts (but the direct contrary is positively
+asserted) that the magistrate has any power whatever over property. It
+states that it is the magistrate's duty to protect it; that he is bound
+to govern by law; that he must have a council of Brahmins to assist him
+in every material act that he does: in short, my Lords, there is not
+even a trace of arbitrary power in the whole system.
+
+My Lords, I will mention one article, to let you see, in a very few
+words, that these Gentoos not only have an inheritance, but that the law
+has established a right of _acquiring_ possession in the property of
+another by prescription. The passage stands thus:--"If there be a person
+who is not a minor," (a man ceases to be a minor at fifteen years of
+age,) "nor impotent, nor diseased, nor an idiot, nor so lame as not to
+have power to walk, nor blind, nor one who, on going before a
+magistrate, is found incapable of distinguishing and attending to his
+own concerns, and who has not given to another person power to employ
+and to use his property,--if, in the face of any such person, another
+man has applied to his own use, during the space of twenty years, the
+glebe-land or houses or orchards of that person, without let or
+molestation from him, from the twenty-first year the property becomes
+invested in the person so applying such things to his own use; and any
+claim of the first person above mentioned upon such glebe-[land or?]
+houses or orchards shall by no means stand good: but if the person
+before mentioned comes under any of the circumstances herein before
+described, his claim in that case shall stand good." Here you see, my
+Lords, that possession shall by prescription stand good against the
+claims of all persons who are not disqualified from making their claims.
+
+I might, if necessary, show your Lordships that the highest magistrate
+is subject to the law; that there is a case in which he is finable; that
+they have established rules of evidence and of pleading, and, in short,
+all the rules which have been formed in other countries to prevent this
+very arbitrary power. Notwithstanding all this, the prisoner at the bar,
+and his counsel, have dared to assert, in this sacred temple of justice,
+in the presence of this great assembly, of all the bishops, of all the
+peers, and of all the judges of this land, that the people of India have
+no laws whatever.
+
+I do not mean to trouble your Lordships with more extracts from this
+book. I recommend it to your Lordships' reading,--when you will find,
+that, so far from the magistrate having any power either to imprison
+arbitrarily or to fine arbitrarily, the rules of fines are laid down
+with ten thousand times more exactness than with us. If you here find
+that the magistrate has any power to punish the people with arbitrary
+punishment, to seize their property, or to disfranchise them of any
+rights or privileges, I will readily admit that Mr. Hastings has laid
+down good, sound doctrine upon this subject. There is his own book, a
+compilation of their laws, which has in it not only good and excellent
+positive rules, but a system of as enlightened jurisprudence, with
+regard to the body and substance of it, as perhaps any nation ever
+possessed,--a system which must have been composed by men of highly
+cultivated understandings.
+
+As to the travellers that have been quoted, absurd as they are in the
+ground of their argument, they are not less absurd in their reasonings.
+For, having first laid it down that there is no property, and that the
+government is the proprietor of everything, they argue, inferentially,
+that they have no laws. But if ever there were a people that seem to be
+protected with care and circumspection from all arbitrary power, both in
+the executive and judicial department, these are the people that seem to
+be so protected.
+
+I could show your Lordships that they are so sensible of honor, that
+fines are levied and punishment inflicted according to the rank of the
+culprit, and that the very authority of the magistrate is dependent on
+their rank. That the learned counsel should be ignorant of these things
+is natural enough. They are concerned in the gainful part of their
+profession. If they know the laws of their own country, which I dare say
+they do, it is not to be expected that they should know the laws of any
+other. But, my Lords, it is to be expected that the prisoner should know
+the Gentoo laws: for he not only cheated Nobkissin of his money to get
+these laws translated, but he took credit for the publication of the
+work as an act of public spirit, after shifting the payment from himself
+by fraud and peculation. All this has been proved by the testimonies of
+Mr. Auriol and Mr. Halhed before your Lordships.
+
+We do not bring forward this book as evidence of guilt or innocence, but
+to show the laws and usages of the country, and to prove the prisoner's
+knowledge of them.
+
+From the Gentoo we will proceed to the Tartarian government of India, a
+government established by conquest, and therefore not likely to be
+distinguished by any marks of extraordinary mildness towards the
+conquered. The book before me will prove to your Lordships that the head
+of this government (who is falsely supposed to have a despotic
+authority) is absolutely elected to his office. Tamerlane was elected;
+and Genghis Khan particularly valued himself on improving the laws and
+institutions of his own country. These laws we only have imperfectly in
+this book; but we are told in it, and I believe the fact, that he
+forbade, under pain of death, any prince or other person to presume to
+cause himself to be proclaimed Great Khan or Emperor, without being
+first duly elected by the princes lawfully assembled in general diet. He
+then established the privileges and immunities granted to the
+Tunkawns,--that is, to the nobility and gentry of the country,--and
+afterwards published most severe ordinances against governors who failed
+in doing their duty, but principally against those who commanded in far
+distant provinces. This prince was in this case, what I hope your
+Lordships will be, a very severe judge of the governors of countries
+remote from the seat of the government.
+
+My Lords, we have in this book sufficient proof that a Tartarian
+sovereign could not obtain the recognition of ancient laws, or establish
+new ones, without the consent of his parliament; that he could not
+ascend the throne without being duly elected; and that, when so elected,
+he was bound to preserve the great in all their immunities, and the
+people in all their rights, liberties, privileges, and properties. We
+find these great princes restrained by laws, and even making wise and
+salutary regulations for the countries which they conquered. We find
+Genghis Khan establishing one of his sons in a particular
+office,--namely, conservator of those laws; and he has ordered that they
+should not only be observed in his time, but by all posterity; and
+accordingly they are venerated at this time in Asia. If, then, this very
+Genghis Khan, if Tamerlane, did not assume arbitrary power, what are you
+to think of this man, so bloated with corruption, so bloated with the
+insolence of unmerited power, declaring that the people of India have no
+rights, no property, no laws,--that he could not be bound even by an
+English act of Parliament,--that he was an arbitrary sovereign in India,
+and could exact what penalties he pleased from the people, at the
+expense of liberty, property, and even life itself? Compare this man,
+this compound of pride and presumption, with Genghis Khan, whose
+conquests were more considerable than Alexander's, and yet who made the
+laws the rule of his conduct; compare him with Tamerlane, whose
+Institutes I have before me. I wish to save your Lordships' time, or I
+could show you in the life of this prince, that he, violent as his
+conquests were, bloody as all conquests are, ferocious as a Mahometan
+making his crusades for the propagation of his religion, he yet knew how
+to govern his unjust acquisitions with equity and moderation. If any man
+could be entitled to claim arbitrary power, if such a claim could be
+justified by extent of conquest, by splendid personal qualities, by
+great learning and eloquence, Tamerlane was the man who could have made
+and justified the claim. This prince gave up all his time not employed
+in conquests to the conversation of learned men. He gave himself to all
+studies that might accomplish a great man. Such a man, I say, might, if
+any may, claim arbitrary power. But the very things that made him great
+made him sensible that he was but a man. Even in the midst of all his
+conquests, his tone was a tone of humility; he spoke of laws as every
+man must who knows what laws are; and though he was proud, ferocious,
+and violent in the achievement of his conquests, I will venture to say
+no prince ever established institutes of civil government more honorable
+to himself than the Institutes of Timour. I shall be content to be
+brought to shame before your Lordships, if the prisoner at your bar can
+show me one passage where the assumption of arbitrary power is even
+hinted at by this great conqueror. He declares that the nobility of
+every country shall be considered as his brethren, that the people shall
+be acknowledged as his children, and that the learned and the dervishes
+shall be particularly protected. But, my Lords, what he particularly
+valued himself upon I shall give your Lordships in his own words:--"I
+delivered the oppressed from the hand of the oppressor; and after proof
+of the oppression, whether on the property or the person, the decision
+which I passed between them was agreeable to the sacred law; and I did
+not cause any one person to suffer for the guilt of another."[95]
+
+My Lords, I have only further to inform your Lordships that these
+Institutes of Timour ought to be very well known to Mr. Hastings. He
+ought to have known that this prince never claimed arbitrary power; that
+the principles he adopted were to govern by law, to repress the
+oppressions of his inferior governors, to recognize in the nobility the
+respect due to their rank, and in the people the protection to which
+they were by law entitled. This book was published by Major Davy, and
+revised by Mr. White. The Major was an excellent Orientalist; he was
+secretary to Mr. Hastings, to whom, I believe, he dedicated this book. I
+have inquired of persons the most conversant with the Arabic and
+Oriental languages, and they are clearly of opinion that there is
+internal evidence to prove it of the age of Tamerlane; and he must be
+the most miserable of critics, who, reading this work with attention,
+does not see, that, if it was not written by this very great monarch
+himself, it was at least written by some person in his court and under
+his immediate inspection. Whether, therefore, this work be the
+composition of Tamerlane, or whether it was written by some persons of
+learning near him, through whom he meant to give the world a just idea
+of his manners, maxims, and government, it is certainly as good
+authority as Mr. Hastings's _Defence_, which he has acknowledged to have
+been written by other people.
+
+From the Tartarian I shall now proceed to the later Mahometan conquerors
+of Hindostan: for it is fit that I should show your Lordships the
+wickedness of pretending that the people of India have no laws or
+rights. A great proportion of the people are Mahometans; and Mahometans
+are so far from having no laws or rights, that, when you name a
+Mahometan, you name a man governed by law and entitled to protection.
+Mr. Hastings caused to be published, and I am obliged to him for it, a
+book called "The Hedaya": it is true that he has himself taken credit
+for the work, and robbed Nobkissin of the money to pay for it; but the
+value of a book is not lessened because a man stole it. Will you
+believe, my Lords, that a people having no laws, no rights, no property,
+no honor, would be at the trouble of having so many writers on
+jurisprudence? And yet there are, I am sure, at least a thousand eminent
+Mahometan writers upon law, who have written far more voluminous works
+than are known in the Common Law of England, and I verily believe more
+voluminous than the writings of the Civilians themselves. That this
+should be done by a people who have no property is so perfectly
+ridiculous as scarcely to require refutation; but I shall endeavor to
+refute it, and without troubling you a great deal.
+
+First, then, I am to tell you that the Mahometans are a people amongst
+whom the science of jurisprudence is much studied and cultivated; that
+they distinguish it into the law of the _Koran_ and its authorized
+commentaries,--into the _Fetwah_, which is the judicial judgments and
+reports of adjudged cases,--into the _Canon_, which is the regulations
+made by the emperor for the sovereign authority in the government of
+their dominions,--and, lastly, into the _Rawaj-ul-Mulk_, or custom and
+usage, the common law of the country, which prevails independent of any
+of the former.
+
+In regard to punishments being arbitrary, I will, with your Lordships'
+permission, read a passage which will show you that the magistrate is a
+responsible person. "If a supreme ruler, such as the Caliph for the time
+being, commit any offence punishable by law, such as whoredom, theft, or
+drunkenness, he is not subject to any punishment; but yet if he commit
+murder, he is subject to the law of retaliation, and he is also
+accountable in matters of property: because _punishment_ is a right of
+God, the infliction of which is committed to the Caliph, or other
+supreme magistrate, and to none else; and he cannot inflict punishment
+upon himself, as in this there is no advantage, because the good
+proposed in punishment is that it may operate as a warning to deter
+mankind from sin, and this is not obtained by a person's inflicting
+punishment upon himself, contrary to the rights of the _individual_,
+such as the laws of _retaliation_ and of _property_, the penalties of
+which may be exacted of the Caliph, as the claimant of right may obtain
+satisfaction, either by the Caliph impowering him to exact his right
+from himself, or by the claimant appealing for assistance to the
+collective body of Mussulmans."[96]
+
+Here your Lordships see that the Caliph, who is a magistrate of the
+highest authority which can exist among the Mahometans, where property
+or life is concerned has no arbitrary power, but is responsible just as
+much as any other man.
+
+I am now to inform your Lordships that the sovereign can raise no taxes.
+The imposing of a tribute upon a Mussulman, without his previous
+consent, is impracticable. And so far from all property belonging to the
+sovereign, the public treasure does not belong to him. It is declared to
+be the common property of all Mahometans. This doctrine is laid down in
+many places, but particularly in the 95th page of the second volume of
+Hamilton's Hedaya.
+
+Mr. Hastings has told you what a sovereign is, and what sovereignty is,
+all over India; and I wish your Lordships to pay particular attention to
+this part of his defence, and to compare Mr. Hastings's idea of
+sovereignty with the declaration of the Mahometan law. The tenth chapter
+of these laws treats of rebellion, which is defined an act of warfare
+against the sovereign. You are there told who the sovereign is, and how
+many kinds of rebels there are. The author then proceeds to say,--"The
+word _baghee_ (rebellion), in its literal sense, means prevarication,
+also, injustice and tyranny; in the language of the law it is
+particularly applied to injustice, namely, withdrawing from obedience to
+the rightful Imaum (as appears in the _Fattahal-Kadeen_). By the
+rightful Imaum is understood a person in whom all the qualities
+essential to magistracy are united, such as Islamism, freedom, sanity of
+intellect, and maturity of age,--and who has been elected into his
+office by any tribe of Mussulmans, with their general consent; whose
+view and intention is the advancement of the true religion and the
+strengthening of the Mussulmans, and under whom the Mussulmans enjoy
+security in person and property; one who levies tithe and tribute
+according to law; who out of the public treasury pays what is due to
+learned men, preachers, kazees, muftis, philosophers, public teachers,
+and so forth; and who is just in all his dealings with Mussulmans: for
+whoever does not answer this description is not the right Imaum; whence
+it is not incumbent to support such a one; but rather it is incumbent to
+oppose him and make war upon him, until such time as he either adopt a
+proper mode of conduct or be slain."[97]
+
+My Lords, is this a magistrate of the same description as the sovereign
+delineated by Mr. Hastings? This man must be elected by the general
+consent of Mussulmans; he must be a protector of the person and property
+of his subjects; a right of resistance is directly established by law
+against him, and even the duty of resistance is insisted upon. Am I, in
+praising this Mahometan law, applauding the principle of elective
+sovereignty? No, my Lords, I know the mischiefs which have attended it;
+I know that it has shaken the thrones of most of the sovereigns of the
+Mussulman religion; but I produce the law as the clearest proof that
+such a sovereign cannot be supposed to have an arbitrary power over the
+property and persons of those who elect him, and who have an
+acknowledged right to resist and dethrone him, if he does not afford
+them protection.
+
+I have now gone through what I undertook to prove,--that Mr. Hastings,
+with all his Indian Council, who have made up this volume of arbitrary
+power, are not supported by the laws of the Moguls, by the laws of the
+Gentoos, by the Mahometan laws, or by any law, custom, or usage which
+has ever been recognized as legal and valid.
+
+But, my Lords, the prisoner defends himself by example; and, good God!
+what are the examples which he has chosen? Not the local usages and
+constitutions of Oude or of any other province; not the general practice
+of a respectable emperor, like Akbar, which, if it would not fatigue
+your Lordships, I could show to be the very reverse of this man's. No,
+my Lords, the prisoner, his learned counsel here, and his unlearned
+Cabinet Council, who wrote this defence, have ransacked the tales of
+travellers for examples, and have selected materials from that mass of
+loose remarks and crude conceptions, to prove that the natives of India
+have neither rights, laws, orders, or distinction.
+
+I shall now proceed to show your Lordships that the people of India have
+a keen sense and feeling of disgrace and dishonor. In proof of this I
+appeal to well-known facts. There have been women tried in India for
+offences, and acquitted, who would not survive the disgrace even of
+acquittal. There have been Hindoo soldiers, condemned at a
+court-martial, who have desired to be blown from the mouth of a cannon,
+and have claimed rank and precedence at the last moment of their
+existence. And yet these people are said to have no sense of dishonor!
+Good God! that we should be under the necessity of proving, in this
+place, all these things, and of disproving that all India was given in
+slavery to this man!
+
+But, my Lords, they will show you, they say, that Genghis Khan, Kouli
+Khan, and Tamerlane destroyed ten thousand times more people in battle
+than this man did. Good God! have they run mad? Have they lost their
+senses in their guilt? Did they ever expect that we meant to compare
+this man to Tamerlane, Genghis Khan, or Kouli Khan?--to compare a clerk
+at a bureau, to compare a fraudulent bullock-contractor, (for we could
+show that his first elementary malversations were in carrying on
+fraudulent bullock-contracts; which contracts were taken from him with
+shame and disgrace, and restored with greater shame and disgrace,) to
+compare him with the conquerors of the world? We never said he was a
+tiger and a lion: no, we have said he was a weasel and a rat. We have
+said that he has desolated countries by the same means that plagues of
+his description have produced similar desolations. We have said that he,
+a fraudulent bullock-contractor, exalted to great and unmerited powers,
+can do more mischief than even all the tigers and lions in the world. We
+know that a swarm of locusts, although individually despicable, can
+render a country more desolate than Genghis Khan or Tamerlane. When God
+Almighty chose to humble the pride and presumption of Pharaoh, and to
+bring him to shame, He did not effect His purpose with tigers and lions;
+but He sent lice, mice, frogs, and everything loathsome and
+contemptible, to pollute and destroy the country. Think of this, my
+Lords, and of your listening here to these people's long account of
+Tamerlane's camp of two hundred thousand persons, and of his building a
+pyramid at Bagdad with the heads of ninety thousand of his prisoners!
+
+We have not accused Mr. Hastings of being a great general, and abusing
+his military powers: we know that he was nothing, at the best, but a
+creature of the bureau, raised by peculiar circumstances to the
+possession of a power by which incredible mischief might be done. We
+have not accused him of the vices of conquerors: when we see him
+signalized by any conquests, we may then make such an accusation; at
+present we say that he has been trusted with power much beyond his
+deserts, and that trust he has grossly abused.--But to proceed.
+
+His counsel, according to their usual audacious manner, (I suppose they
+imagine that they are counsel for Tamerlane, or for Genghis Khan,) have
+thought proper to accuse the Managers for the Commons of wandering
+[wantoning?] in all the fabulous regions of Indian mythology. My Lords,
+the Managers are sensible of the dignity of their place; they have never
+offered anything to you without reason. We are not persons of an age, of
+a disposition, of a character, representative or natural, to _wanton_,
+as these counsel call it,--that is, to invent fables concerning Indian
+antiquity. That they are not ashamed of making this charge I do not
+wonder. But we are not to be thus diverted from our course.
+
+I have already stated to your Lordships a material circumstance of this
+case, which I hope will never be lost sight of,--namely, the different
+situation in which India stood under the government of its native
+princes and its own original laws, and even under the _dominion_ of
+Mahometan conquerors, from that in which it has stood under the
+government of a series of tyrants, foreign and domestic, particularly of
+Mr. Hastings, by whom it has latterly been oppressed and desolated. One
+of the books which I have quoted was written by Mr. Halhed; and I shall
+not be accused of wantoning in fabulous antiquity, when I refer to
+another living author, who wrote from what he saw and what he well knew.
+This author says,--"In truth, it would be almost cruelty to molest these
+happy people" (speaking of the inhabitants of one of the provinces near
+Calcutta); "for in this district are the only vestiges of the beauty,
+purity, piety, regularity, equity, and strictness of the ancient
+Hindostan government: here the property as well as the liberty of the
+people is inviolate." My Lords, I do not refer you to this writer
+because I think it necessary to our justification, nor from any fear
+that your Lordships will not do us the justice to believe that we have
+good authority for the facts which we state, and do not (as persons with
+their licentious tongues dare to say) wanton in fabulous antiquity. I
+quote the works of this author, because his observations and opinions
+could not be unknown to Mr. Hastings, whose associate he was in some
+acts, and whose adviser he appears to have been in that dreadful
+transaction, the deposition of Cossim Ali Khan. This writer was
+connected with the prisoner at your bar in bribery, and has charged him
+with detaining his bribe. To this Mr. Hastings has answered, that he had
+paid him long ago. How they have settled that corrupt transaction I know
+not. I merely state all this to prove that we have not dealt in fabulous
+history, and that, if anybody has dealt in falsehood, it is Mr.
+Hastings's companion and associate in guilt, who must have known the
+country, and who, however faulty he was in other respects, had in this
+case no interest whatever in misrepresentation.
+
+I might refer your Lordships, if it were necessary, to Scrafton's
+account of that ancient government, in order to prove to you the happy
+comparative state of that country, even under its former usurpers. Our
+design, my Lords, in making such references, is not merely to disprove
+the prisoner's defence, but to vindicate the rights and privileges of
+the people of India. We wish to reinstate them in your sympathy. We
+wish you to respect a people as respectable as yourselves,--a people who
+know as well as you what is rank, what is law, what is property,--a
+people who know how to feel disgrace, who know what equity, what reason,
+what proportion in punishments, what security of property is, just as
+well as any of your Lordships; for these are things which are secured to
+them by laws, by religion, by declarations of all their sovereigns. And
+what, my Lords, is opposed to all this? The practice of tyrants and
+usurpers, which Mr. Hastings takes for his rule and guidance. He
+endeavors to find deviations from legal government, and then instructs
+his counsel to say that I have asserted there is no such thing as
+arbitrary power in the East. Good God! if there was no such thing in any
+other part of the world, Mr. Hastings's conduct might have convinced me
+of the existence of arbitrary power, and have taught me much of its
+mischief.
+
+But, my Lords, we all know that there has been arbitrary power in
+India,--that tyrants have usurped it,--and that, in some instances,
+princes otherwise meritorious have violated the liberties of the people,
+and have been lawfully deposed for such violation. I do not deny that
+there are robberies on Hounslow Heath,--that there are such things as
+forgeries, burglaries, and murders; but I say that these acts are
+against law, and that whoever commit them commit illegal acts. When a
+man is to defend himself against a charge of crime, it is not instances
+of similar violation of law that is to be the standard of his defence. A
+man may as well say, "I robbed upon Hounslow Heath, but hundreds robbed
+there before me": to which I answer, "The law has forbidden you to rob
+there; and I will hang you for having violated the law, notwithstanding
+the long list of similar violations which you have produced as
+precedents." No doubt princes have violated the law of this country:
+they have suffered for it. Nobles have violated the law: their
+privileges have not protected them from punishment. Common people have
+violated the law: they have been hanged for it. I know no human being
+exempt from the law. The law is the security of the people of England;
+it is the security of the people of India; it is the security of every
+person that is governed, and of every person that governs. There is but
+one law for all, namely, that law which governs all law, the law of our
+Creator, the law of humanity, justice, equity,--the Law of Nature and of
+Nations. So far as any laws fortify this primeval law, and give it more
+precision, more energy, more effect by their declarations, such laws
+enter into the sanctuary, and participate in the sacredness of its
+character. But the man who quotes as precedents the abuses of tyrants
+and robbers pollutes the very fountain of justice, destroys the
+foundations of all law, and thereby removes the only safeguard against
+evil men, whether governors or governed,--the guard which prevents
+governors from becoming tyrants, and the governed from becoming rebels.
+
+       *       *       *       *       *
+
+I hope your Lordships will not think that I have unnecessarily occupied
+your time in disproving the plea of arbitrary power, which has been
+brought forward at our bar, has been repeated at your Lordships' bar,
+and has been put upon the records of both Houses. I hope your Lordships
+will not think that such monstrous doctrine should be passed over,
+without all possible pains being taken to demonstrate its falsehood and
+to reprobate its tendency. I have not spared myself in exposing the
+principles avowed by the prisoner. At another time I will endeavor to
+show you the manner in which he acted upon these principles. I cannot
+command strength to proceed further at present; and you, my Lords,
+cannot give me greater bodily strength than I have.
+
+FOOTNOTES:
+
+[95] Institutes of Timour, p. 165.
+
+[96] Hedaya, Vol. II. p. 34.
+
+[97] Hedaya, Vol. II. pp. 247, 248.
+
+
+
+
+SPEECH
+
+IN
+
+GENERAL REPLY.
+
+SECOND DAY: FRIDAY, MAY 30, 1794.
+
+
+My lords,--On the last day of the sitting of this court, when I had the
+honor of appearing before you by the order of my fellow Managers, I
+stated to you their observations and my own upon two great points: one
+the demeanor of the prisoner at the bar during his trial, and the other
+the principles of his defence. I compared that demeanor with the
+behavior of some of the greatest men in this kingdom, who have, on
+account of their offences, been brought to your bar, and who have seldom
+escaped your Lordships' justice. I put the decency, humility, and
+propriety of the most distinguished men's behavior in contrast with the
+shameless effrontery of this prisoner, who has presumptuously made a
+recriminatory charge against the House of Commons, and answered their
+impeachment by a counter impeachment, explicitly accusing them of
+malice, oppression, and the blackest ingratitude.
+
+My Lords, I next stated that this recriminatory charge consisted of two
+distinct parts,--injustice and delay. To the injustice we are to answer
+by the nature and proof of the charges which we have brought before you;
+and to the delay, my Lords, we have answered in another place. Into one
+of the consequences of the delay, the ruinous expense which the
+prisoner complains of, we have desired your Lordships to make an
+inquiry, and have referred you to facts and witnesses which will remove
+this part of the charge.
+
+With regard to ingratitude, there will be a proper time for
+animadversion on this charge. For in considering the merits that are
+intended to be set off against his crimes, we shall have to examine into
+the nature of those merits, and to ascertain how far they are to
+operate, either as the prisoner designs they shall operate in his favor,
+as presumptive proofs that a man of such merits could not be guilty of
+such crimes, or as a sort of set-off to be pleaded in mitigation of his
+offences. In both of these lights we shall consider his services, and in
+this consideration we shall determine the justice of his charge of
+ingratitude.
+
+My Lords, we have brought the demeanor of the prisoner before you for
+another reason. We are desirous that your Lordships may be enabled to
+estimate, from the proud presumption and audacity of the criminal at
+your bar, when he stands before the most awful tribunal in the world,
+accused by a body representing no less than the sacred voice of his
+country, what he must have been when placed in the seat of pride and
+power. What must have been the insolence of that man towards the natives
+of India, who, when called here to answer for enormous crimes, presumes
+to behave, not with the firmness of innocence, but with the audacity and
+hardness of guilt!
+
+It may be necessary that I should recall to your Lordships' recollection
+the principles of the accusation and of the defence. Your Lordships will
+bear in mind that the matters of fact are all either settled by
+confession or conviction, and that the question now before you is no
+longer an issue of fact, but an issue of law. The question is, what
+degree of merit or demerit you are to assign by law to actions which
+have been laid before you, and their truth acknowledged.
+
+The principle being established that you are to decide upon an issue at
+law, we examined by what law the prisoner ought to be tried; and we
+preferred a claim which we do now solemnly prefer, and which we trust
+your Lordships will concur with us in a laudable emulation to
+establish,--a claim founded upon the great truths, that all power is
+limited by law, and ought to be guided by discretion, and not by
+arbitrary will,--that all discretion must be referred to the
+conservation and benefit of those over whom power is exercised, and
+therefore must be guided by rules of sound political morality.
+
+We next contended, that, wherever existing laws were applicable, the
+prisoner at your bar was bound by the laws and statutes of this kingdom,
+as a British subject; and that, whenever he exercised authority in the
+name of the Company, or in the name of his Majesty, or under any other
+name, he was bound by the laws and statutes of this kingdom, both in
+letter and spirit, so far as they were applicable to him and to his
+case; and above all, that he was bound by the act to which he owed his
+appointment, in all transactions with foreign powers, to act according
+to the known recognized rules of the Law of Nations, whether these
+powers were really or nominally sovereign, whether they were dependent
+or independent.
+
+The next point which we established, and which we now call to your
+Lordships' recollection, is, that he was bound to proceed according to
+the laws, rights, laudable customs, privileges, and franchises of the
+country that he governed; and we contended that to such laws, rights,
+privileges, and franchises the people of the country had a clear and
+just claim.
+
+Having established these points as the basis of Mr. Hastings's general
+power, we contended that he was obliged by the nature of his relation,
+as a servant to the Company, to be obedient to their orders at all
+times, and particularly where he had entered into special covenants
+regarding special articles of obedience.
+
+These are the principles by which we have examined the conduct of this
+man, and upon which we have brought him to your Lordships' bar for
+judgment. This is our table of the law. Your Lordships shall now be
+shown the table by which he claims to be judged. But I will first beg
+your Lordships to take notice of the utter contempt with which he treats
+all our acts of Parliament.
+
+Speaking of the absolute sovereignty which he would have you believe is
+exercised by the princes of India, he says, "The sovereignty which they
+assumed it fell to my lot, very unexpectedly, to exert; and whether or
+not such power, or powers of that nature, were delegated to me by any
+provisions of any act of Parliament I confess myself too little of a
+lawyer to pronounce," and so on. This is the manner in which he treats
+an act of Parliament! In the place of acts of Parliament he substitutes
+his own arbitrary will. This he contends is the sole law of the country
+he governed, as laid down in what he calls the arbitrary Institutes of
+Genghis Khan and Tamerlane. This arbitrary will he claims, to the
+exclusion of the Gentoo law, the Mahometan law, and the law of his own
+country. He claims the right of making his own will the sole rule of his
+government, and justifies the exercise of this power by the examples of
+Aliverdy Khan, Cossim Ali Khan, Sujah Dowlah Khan, and all those Khans
+who have rebelled against their masters, and desolated the countries
+subjected to their rule. This, my Lords, is the law which he has laid
+down for himself, and these are the examples which he has expressly told
+the House of Commons he is resolved to follow. These examples, my Lords,
+and the principles with which they are connected, without any softening
+or mitigation, he has prescribed to you as the rule by which his conduct
+is to be judged.
+
+Another principle of the prisoner is, that, whenever the Company's
+affairs are in distress, even when that distress proceeds from his own
+prodigality, mismanagement, or corruption, he has a right to take for
+the Company's benefit privately in his own name, with the future
+application of it to their use reserved in his own breast, every kind of
+bribe or corrupt present whatever.
+
+I have now restated to your Lordships the maxims by which the prisoner
+persists in defending himself, and the principles upon which we claim to
+have him judged. The issue before your Lordships is a hundred times more
+important than the cause itself, for it is to determine by what law or
+maxims of law the conduct of governors is to be judged.
+
+On one side, your Lordships have the prisoner declaring that the people
+have no laws, no rights, no usages, no distinctions of rank, no sense of
+honor, no property,--in short, that they are nothing but a herd of
+slaves, to be governed by the arbitrary will of a master. On the other
+side, we assert that the direct contrary of this is true. And to prove
+our assertion we have referred you to the Institutes of Genghis Khan and
+of Tamerlane; we have referred you to the Mahometan law, which is
+binding upon all, from the crowned head to the meanest subject,--a law
+interwoven with a system of the wisest, the most learned, and most
+enlightened jurisprudence that perhaps ever existed in the world. We
+have shown you, that, if these parties are to be compared together, it
+is not the rights of the people which are nothing, but rather the rights
+of the sovereign which are so. The rights of the people are everything,
+as they ought to be, in the true and natural order of things. God forbid
+that these maxims should trench upon sovereignty, and its true, just,
+and lawful prerogative!--on the contrary, they ought to support and
+establish them. The sovereign's rights are undoubtedly sacred rights,
+and ought to be so held in every country in the world, because exercised
+for the benefit of the people, and in subordination to that great end
+for which alone God has vested power in any man or any set of men. This
+is the law that we insist upon, and these are the principles upon which
+your Lordships are to try the prisoner at your bar.
+
+Let me remind your Lordships that these people lived under the laws to
+which I have referred you, and that these laws were formed whilst we, I
+may say, were in the forest, certainly before we knew what technical
+jurisprudence was. These laws are allowed to be the basis and substratum
+of the manners, customs, and opinions of the people of India; and we
+contend that Mr. Hastings is bound to know them and to act by them; and
+I shall prove that the very condition upon which he received power in
+India was to protect the people in their laws and known rights. But
+whether Mr. Hastings did know these laws, or whether, content with
+credit gained by as base a fraud as was ever practised, he did not read
+the books which Nobkissin paid for, we take the benefit of them: we know
+and speak after knowledge of them. And although I believe his Council
+have never read them, I should be sorry to stand in this place, if there
+was one word and tittle in these books that I had not read over.
+
+We therefore come here and declare to you that he is not borne out by
+these Institutes, either in their general spirit or in any particular
+passage to which he has had the impudence to appeal, in the assumption
+of the arbitrary power which he has exercised. We claim, that, as our
+own government and every person exercising authority in Great Britain is
+bound by the laws of Great Britain, so every person exercising authority
+in another country shall be subject to the laws of that country; since
+otherwise they break the very covenant by which we hold our power there.
+Even if these Institutes had been arbitrary, which they are not, they
+might have been excused as the acts of conquerors. But, my Lords, he is
+no conqueror, nor anything but what you see him,--a bad scribbler of
+absurd papers, in which he can put no two sentences together without
+contradiction. We know him in no other character than that of having
+been a bullock-contractor for some years, of having acted fraudulently
+in that capacity, and afterwards giving fraudulent contracts to others;
+and yet I will maintain that the first conquerors of the world would
+have been base and abandoned, if they had assumed such a right as he
+dares to claim. It is the glory of all such great men to have for their
+motto, _Parcere subjectis et debellare superbos_. These were men that
+said they would recompense the countries which they had obtained through
+torrents of blood, through carnage and violence, by the justice of their
+institutions, the mildness of their laws, and the equity of their
+government. Even if these conquerors had promulgated arbitrary
+institutes instead of disclaiming them in every point, you, my Lords,
+would never suffer such principles of defence to be urged here; still
+less will you suffer the examples of men acting by violence, of men
+acting by wrong, the example of a man who has become a rebel to his
+sovereign in order that he should become the tyrant of his people, to be
+examples for a British governor, or for any governor. We here
+confidently protest against this mode of justification, and we maintain
+that his pretending to follow these examples is in itself a crime. The
+prisoner has ransacked all Asia for principles of despotism; he has
+ransacked all the bad and corrupted part of it for tyrannical examples
+to justify himself: and certainly in no other way can he be justified.
+
+Having established the falsehood of the first principle of the
+prisoner's defence, that sovereignty, wherever it exists in India,
+implies in its nature and essence a power of exacting anything from the
+subject, and disposing of his person and property, we now come to his
+second assertion, that he was the true, full, and perfect representative
+of that sovereignty in India.
+
+In opposition to this assertion we first do positively deny that he or
+the Company are the perfect representative of any sovereign power
+whatever. They have certain rights by their charter, and by acts of
+Parliament, but they have no other. They have their legal rights only,
+and these do not imply any such thing as sovereign power. The
+sovereignty of Great Britain is in the King; he is the sovereign of the
+Lords and the sovereign of the Commons, individually and collectively;
+and as he has his prerogative established by law, he must exercise it,
+and all persons claiming and deriving under him, whether by act of
+Parliament, whether by charter of the Crown, or by any other mode
+whatever, all are alike bound by law, and responsible to it. No one can
+assume or receive any power of sovereignty, because the sovereignty is
+in the Crown, and cannot be delegated away from the Crown; no such
+delegation ever took place, or ever was intended, as any one may see in
+the act by which Mr. Hastings was nominated Governor. He cannot,
+therefore, exercise that high supreme sovereignty which is vested by the
+law, with the consent of both Houses of Parliament, in the King, and in
+the King only. It is a violent, rebellious assumption of power, when Mr.
+Hastings pretends fully, perfectly, and entirely to represent the
+sovereign of this country, and to exercise legislative, executive, and
+judicial authority, with as large and broad a sway as his Majesty,
+acting with the consent of the two Houses of Parliament, and agreeably
+to the laws of this kingdom. I say, my Lords, this is a traitorous and
+rebellious assumption, which he has no right to make, and which we
+charge against him, and therefore it cannot be urged in justification of
+his conduct in any respect.
+
+He next alleges, with reference to one particular case, that he received
+this sovereignty from the Vizier Sujah Dowlah, who he pretends was
+sovereign, with an unlimited power over the life, goods, and property of
+Cheyt Sing. This we positively deny. Whatever power the supreme
+sovereign of the empire had, we deny that it was delegated to Sujah
+Dowlah. He never was in possession of it. He was a vizier of the empire;
+he had a grant of certain lands for the support of that dignity: and we
+refer you to the Institutes of Timour, to the Institutes of Akbar, to
+the institutes of the Mahometan law, for the powers of delegated
+governors and viceroys. You will find that there is not a trace of
+sovereignty in them, but that they are, to all intents and purposes,
+mere subjects; and consequently, as Sujah Dowlah had not these powers,
+he could not transfer them to the India Company. His master, the Mogul
+emperor, had them not. I defy any man to show an instance of that
+emperor's claiming any such thing as arbitrary power; much less can it
+be claimed by a rebellious viceroy who had broken loose from his
+sovereign's authority, just as this man broke loose from the authority
+of Parliament. The one had not a right to give, nor the other to receive
+such powers. But whatever rights were vested in the Mogul, they cannot
+belong either to Sujah Dowlah, to Mr. Hastings, or to the Company. These
+latter are expressly bound by their compact to take care of the subjects
+of the empire, and to govern them according to law, reason, and equity;
+and when they do otherwise, they are guilty of tyranny, of a violation
+of the rights of the people, and of rebellion against their sovereign.
+
+We have taken these pains to ascertain and fix principles, because your
+Lordships are not called upon to judge of facts. A jury may find facts,
+but no jury can form a judgment of law; it is an application of the law
+to the fact that makes the act criminal or laudable. You must find a
+fixed standard of some kind or other; for if there is no standard but
+the immediate momentary purpose of the day, guided and governed by the
+man who uses it, fixed not only for the disposition of all the wealth
+and strength of the state, but for the life, fortune, and property of
+every individual, your Lordships are left without a principle to direct
+your judgment. This high court, this supreme court of appeal from all
+the courts of the kingdom, this highest court of criminal jurisdiction,
+exercised upon the requisition of the House of Commons, if left without
+a rule, would be as lawless as the wild savage, and as unprincipled as
+the prisoner that stands at your bar. Our whole issue is upon
+principles, and what I shall say to you will be in perpetual reference
+to them; because it is better to have no principles at all than to have
+false principles of government and of morality. Leave a man to his
+passions, and you leave a wild beast to a savage and capricious nature.
+A wild beast, indeed, when its stomach is full, will caress you, and may
+lick your hands; in like manner, when a tyrant is pleased or his passion
+satiated, you may have a happy and serene day under an arbitrary
+government. But when the principle founded on solid reason, which ought
+to restrain passion, is perverted from its proper end, the false
+principle will be substituted for it, and then man becomes ten times
+worse than a wild beast. The evil principle, grown solid and perennial,
+goads him on and takes entire possession of his mind; and then perhaps
+the best refuge that you can have from that diabolical principle is in
+the natural wild passions and unbridled appetites of mankind. This is a
+dreadful state of things; and therefore we have thought it necessary to
+say a great deal upon his principles.
+
+       *       *       *       *       *
+
+My Lords, we come next to apply these principles to facts which cannot
+otherwise be judged, as we have contended and do now contend. I will not
+go over facts which have been opened to you by my fellow Managers: if I
+did so, I should appear to have a distrust, which I am sure no other man
+has, of the greatest abilities displayed in the greatest of all causes.
+I should be guilty of a presumption which I hope I shall not dream of,
+but leave to those who exercise arbitrary power, in supposing that I
+could go over the ground which my fellow Managers have once trodden, and
+make anything more clear and forcible than they have done. In my humble
+opinion, human ability cannot go farther than they have gone; and if I
+ever allude to anything which they have already touched, it will be to
+show it in another light,--to mark more particularly its departure from
+the principles upon which we contend you ought to judge, or to supply
+those parts which through bodily infirmity, and I am sure nothing else,
+one of my excellent fellow Managers has left untouched. I am here
+alluding to the case of Cheyt Sing.
+
+My honorable fellow Manager, Mr. Grey, has stated to you all the
+circumstances requisite to prove two things: first, that the demands
+made by Mr. Hastings upon Cheyt Sing were contrary to fundamental
+treaties between the Company and that Rajah; and next, that they were
+the result and effect of private malice and corruption. This having
+been stated and proved to you, I shall take up the subject where it was
+left.
+
+My Lords, in the first place, I have to remark to you, that the whole of
+the charge originally brought by Mr. Hastings against Cheyt Sing, in
+justification of his wicked and tyrannical proceedings, is, that he had
+been dilatory, evasive, shuffling, and unwilling to pay that which,
+however unwilling, evasive, and shuffling, he did pay; and that, with
+regard to the business of furnishing cavalry, the Rajah has asserted,
+and his assertion has not been denied, that, when he was desired by the
+Council to furnish these troopers, the purpose for which this
+application was made was not mentioned or alluded to, nor was there any
+place of muster pointed out. We therefore contended, that the demand was
+not made for the service of the state, but for the oppression of the
+individual that suffered by it.
+
+But admitting the Rajah to have been guilty of delay and unwillingness,
+what is the nature of the offence? If you strip it of the epithets by
+which it has been disguised, it merely amounts to an unwillingness in
+the Rajah to pay more than the sums stipulated by the mutual agreement
+existing between him and the Company. This is the whole of it, the whole
+front and head of the offence; and for this offence, such as it is, and
+admitting that he could be legally fined for it, he was subjected to the
+secret punishment of giving a bribe to Mr. Hastings, by which he was to
+buy off the fine, and which was consequently a commutation for it.
+
+That your Lordships may be enabled to judge more fully of the nature of
+this offence, let us see in what relation Cheyt Sing stood with the
+Company. He was, my Lords, a person clothed with every one of the
+attributes of sovereignty, under a direct stipulation that the Company
+should not interfere in his internal government. The military and civil
+authority, the power of life and death, the whole revenue, and the whole
+administration of the law, rested in him. Such was the sovereignty he
+possessed within Benares: but he was a subordinate sovereign dependent
+upon a superior, according to the tenor of his compact, expressed or
+implied. Now, having contended, as we still contend, that the Law of
+Nations is the law of India as well as of Europe, because it is the law
+of reason and the law of Nature, drawn from the pure sources of
+morality, of public good, and of natural equity, and recognized and
+digested into order by the labor of learned men, I will refer your
+Lordships to Vattel, Book I. Cap. 16, where he treats of the breach of
+such agreements, by the protector refusing to give protection, or the
+protected refusing to perform his part of the engagement. My design in
+referring you to this author is to prove that Cheyt Sing, so far from
+being blamable in raising objections to the unauthorized demand made
+upon him by Mr. Hastings, was absolutely bound to do so; nor could he
+have done otherwise, without hazarding the whole benefit of the
+agreement upon which his subjection and protection were founded. The law
+is the same with respect to both contracting parties: if the protected
+or protector does not fulfil with fidelity _each his separate
+stipulation_, the protected may resist the unauthorized demand of the
+protector, or the protector is discharged from his engagement; he may
+refuse protection, and declare the treaty broken.
+
+We contend in favor of Cheyt Sing, in support of the principles of
+natural equity, and of the Law of Nations, which is the birthright of us
+all,--we contend, I say, that Cheyt Sing would have established, in the
+opinions of the best writers on the Law of Nations, a precedent against
+himself for any future violation of the engagement, if he submitted to
+any new demand, without what our laws call a continual claim or
+perpetual remonstrance against the imposition. Instead, therefore, of
+doing that which was criminal, he did that which his safety and his duty
+bound him to do; and for doing this he was considered by Mr. Hastings as
+being guilty of a great crime. In a paper which was published by the
+prisoner in justification of this act, he considers the Rajah to have
+been guilty of rebellious intentions; and he represents these acts of
+contumacy, as he calls them, not as proofs of contumacy merely, but as
+proofs of a settled design to rebel, and to throw off the authority of
+that nation by which he was protected. This belief he declares on oath
+to be the ground of his conduct towards Cheyt Sing.
+
+Now, my Lords, we do contend, that, if any subject, under any name, or
+of any description, be not engaged in public, open rebellion, but
+continues to acknowledge the authority of his sovereign, and, if
+tributary, to pay tribute conformably to agreement, such a subject, in
+case of being suspected of having formed traitorous designs, ought to be
+treated in a manner totally different from that which was adopted by Mr.
+Hastings. If the Rajah of Benares had formed a secret conspiracy, Mr.
+Hastings had a state duty and a judicial duty to perform. He was bound,
+as Governor, knowing of such a conspiracy, to provide for the public
+safety; and as a judge, he was bound to convene a criminal court, and to
+lay before it a detailed accusation of the offence. He was bound to
+proceed publicly and legally against the accused, and to convict him of
+his crime, previous to his inflicting, or forming any intention of
+inflicting, punishment. I say, my Lords, that Mr. Hastings, as a
+magistrate, was bound to proceed against the Rajah either by English
+law, by Mahometan law, or by the Gentoo law; and that, by all or any of
+these laws, he was bound to make the accused acquainted with the crime
+alleged, to hear his answer to the charge, and to produce evidence
+against him, in an open, clear, and judicial manner. And here, my Lords,
+we have again to remark, that the Mahometan law is a great discriminator
+of persons, and that it prescribes the mode of proceeding against those
+who are accused of any delinquency requiring punishment, with a
+reference to the distinction and rank which the accused held in society.
+The proceedings are exceedingly sober, regular, and respectful, even to
+criminals charged with the highest crimes; and every magistrate is
+required to exercise his office in the prescribed manner. In the Hedaya,
+after declaring and discussing the propriety of the Kazi's sitting
+openly in the execution of his office, it is added, that there is no
+impropriety in the Kazi sitting in his own house to pass judgment, but
+it is requisite that he give orders for a free access to the people. It
+then proceeds thus:--"It is requisite that such people sit along with
+the Kazi as were used to sit with him, prior to his appointment to the
+office; because, if he were to sit alone in his house, he would thereby
+give rise to suspicion."[98]
+
+My Lords, having thus seen what the duty of a judge is in such a case,
+let us examine whether Mr. Hastings observed any part of the prescribed
+rules. First, with regard to the publicity of the matter. Did he ever
+give any notice to the Supreme Council of the charges which he says he
+had received against Cheyt Sing? Did he accuse the Rajah in the Council,
+even when it was reduced to himself and his poor, worn, down, cowed, and
+I am afraid bribed colleague, Mr. Wheler? Did he even then, I ask,
+produce any one charge against this man? He sat in Council as a
+judge,--as an English judge,--as a Mahometan judge,--as a judge by the
+Gentoo law, and by the Law of Nature. He should have summoned the party
+to appear in person, or by his attorney, before him, and should have
+there informed him of the charge against him. But, my Lords, he did not
+act thus. He kept the accusation secret in his own bosom. And why?
+Because he did not believe it to be true. This may at least be inferred
+from his having never informed the Council of the matter. He never
+informed the Rajah of Benares of the suspicions entertained against him,
+during the discussions which took place respecting the multiplied
+demands that were made upon him. He never told this victim, as he has
+had the audacity to tell us and all this kingdom in the paper that is
+before your Lordships, that he looked upon these refusals to comply with
+his demands to be overt acts of rebellion; nor did he ever call upon him
+to answer or to justify himself with regard to that imputed conspiracy
+or rebellion. Did he tell Sadanund, the Rajah's agent, when that agent
+was giving him a bribe or a present in secret, and was thus endeavoring
+to deprecate his wrath, that he accepted that bribe because his master
+was in rebellion? Never, my Lords; nor did he, when he first reached
+Benares, and had the Rajah in his power, suggest one word concerning
+this rebellion. Did he, when he met Mr. Markham at Boglipore, where they
+consulted about the destruction of this unhappy man, did he tell Mr.
+Markham, or did Mr. Markham insinuate to him, any one thing about this
+conspiracy and rebellion? No, not a word there, or in his whole progress
+up the country. While at Boglipore, he wrote a letter to Lord Macartney
+upon the state of the empire, giving him much and various advice. Did he
+insinuate in that letter that he was going up to Benares to suppress a
+rebellion of the Rajah Cheyt Sing or to punish him? No, not a word. Did
+he, my Lords, at the eve of his departure from Calcutta, when he
+communicated his intention of taking 500,000_l._, which he calls a fine
+or penalty, from the Rajah, did he inform Mr. Wheler of it? No, not a
+word of his rebellion, nor anything like it. Did he inform his secret
+confidants, Mr. Anderson and Major Palmer, upon that subject? Not a
+word, there was not a word dropped from him of any such rebellion, or of
+any intention in the Rajah Cheyt Sing to rebel. Did he, when he had
+vakeels in every part of the Mahratta empire and in the country of Sujah
+Dowlah, when he had in most of those courts English ambassadors and
+native spies, did he either from ambassadors or spies receive anything
+like authentic intelligence upon this subject? While he was at Benares,
+he had in his hands Benaram Pundit, the vakeel of the Rajah of Berar,
+his own confidential friend, a person whom he took out of the service of
+his master, and to whom he gave a jaghire in this very zemindary of
+Benares. This man, so attached to Mr. Hastings, so knowing in all the
+transactions of India, neither accused Cheyt Sing of rebellious
+intentions, or furnished Mr. Hastings with one single proof that any
+conspiracy with any foreign power existed.
+
+In this absence of evidence, My Lords, let us have recourse to
+probability. Is it to be believed that the Zemindar of Benares, a person
+whom Mr. Hastings describes as being of a timid, weak, irresolute, and
+feeble nature, should venture to make war alone with the whole power of
+the Company in India, aided by all the powers which Great Britain could
+bring to the protection of its Indian empire? Could that poor man, in
+his comparatively small district, possibly have formed such an
+intention, without giving Mr. Hastings access to the knowledge of the
+fact from one or other of the numerous correspondents which he had in
+that country?
+
+As to the Rajah's supposed intrigues with the Nabob of Oude: this man
+was an actual prisoner of Mr. Hastings, and nothing else,--a mere
+vassal, as he says himself, in effect and substance, though not in name.
+Can any one believe or think that Mr. Hastings would not have received
+from the English Resident, or from some one of that tribe of English
+gentlemen and English military collectors who were placed in that
+country in the exercise of the most arbitrary powers, some intelligence
+which he could trust, if any rebellious designs had really existed
+previous to the rebellion which did actually break out upon his
+arresting Cheyt Sing?
+
+There was an ancient Roman lawyer, of great fame in the history of Roman
+jurisprudence, whom they called _Cui Bono_, from his having first
+introduced into juridical proceedings the argument, _What end or object
+could the party have had in the art with which he is accused?_ Surely it
+may be here asked, Why should Cheyt Sing wish to rebel, who held on easy
+and moderate terms (for such I admit they were) a very considerable
+territory, with every attribute of royalty attached? The tribute was
+paid for protection, which he had a right to claim, and which he
+actually received. What reason under heaven could he have to go and seek
+another master, to place himself under the protection of Sujah Dowlah,
+in whose hands Mr. Hastings tells you, in so many direct and plain
+words, that neither the Rajah's property, his honor, or his life could
+be safe? Was he to seek refuge with the Mahrattas, who, though Gentoos
+like himself, had reduced every nation which they subdued, except those
+who were originally of their own empire, to a severe servitude? Can any
+one believe that he wished either for the one or the other of these
+charges [changes?], or that he was desirous to quit the happy
+independent situation in which he stood under the protection of the
+British empire, from any loose, wild, improbable notion of mending his
+condition? My Lords, it is impossible. There is not one particle of
+evidence, not one word of this charge on record, prior to the
+publication of Mr. Hastings's Narrative; and all the presumptive
+evidence in the world would scarcely be sufficient to prove the fact,
+because it is almost impossible that it should be true.
+
+But, my Lords, although Mr. Hastings swore to the truth of this charge,
+when he came before the House of Commons, yet in his Narrative he thus
+fairly and candidly avowed that he entertained no such opinion at the
+time. "Every step," says he, "which I had taken before that fatal
+moment, namely, the flight of Cheyt Sing, is an incontrovertible proof
+that I had formed no design of seizing upon the Rajah's treasures or of
+deposing him. And certainly, at the time when I did form the design of
+making the punishment that his former ill conduct deserved subservient
+to the exigencies of the state by a large fine, I did not believe him
+guilty of that premeditated project for driving the English out of India
+with which I afterwards charged him." Thus, then, he declares upon oath
+that the Rajah's contumacy was the ground of his suspecting him of
+rebellion, and yet, when he comes to make his defence before the House
+of Commons, he simply and candidly declares, that, long after these
+alleged acts of contumacy had taken place, he did not believe him to be
+guilty of any such thing as rebellion, and that the fine imposed upon
+him was for another reason and another purpose.
+
+In page 28 of your printed Minutes he thus declares the purpose for
+which the fine was imposed:--"I can answer only to this formidable
+dilemma, that, so long as I conceived Cheyt Sing's misconduct and
+contumacy to have me rather than the Company for its object, at least to
+be merely the effect of pernicious advice or misguided folly, without
+any formal design of openly resisting our authority or disclaiming our
+sovereignty, I looked upon a considerable fine as sufficient both for
+his immediate punishment and for binding him to future good behavior."
+
+Here, my Lords, the secret comes out. He declares it was not for a
+rebellion or a suspicion of rebellion that he resolved, over and above
+all his exorbitant demands, to take from the Rajah 500,000_l._, (a good
+stout sum to be taken from a tributary power!)--that it was not for
+misconduct of this kind that he took this sum, but for personal ill
+behavior towards himself. I must again beg your Lordships to note that
+he then considered the Rajah's contumacy as having for its object, not
+the Company, but Warren Hastings, and that he afterwards declared
+publicly to the House of Commons, and now before your Lordships he
+declares finally and conclusively, that he did believe Cheyt Sing to
+have had the criminal intention imputed to him.
+
+"So long," says he, "as I conceived Cheyt Sing's misconduct and
+contumacy to have _me_" (in Italics, as he ordered it to be printed,)
+"rather than the Company, for its object, so long I was satisfied with a
+fine: I therefore entertained no serious thoughts of expelling him, or
+proceeding otherwise to violence. But when he and his people broke out
+into the most atrocious acts of rebellion and murder, when the _jus
+fortioris et lex ultima regum_ were appealed to on his part, and without
+any sufficient plea afforded him on mine, I from that moment considered
+him as the traitor and criminal described in the charge, and no
+concessions, no humiliations, could ever after induce me to settle on
+him the zemindary of Benares, or any other territory, upon any footing
+whatever."
+
+Thus, then, my Lords, he has confessed that the era and the only era of
+rebellion was when the tumult broke out upon the act of violence offered
+by himself to Cheyt Sing; and upon the ground of that tumult, or
+rebellion as he calls it, he says he never would suffer him to enjoy any
+territory or any right whatever. We have fixed the period of the
+rebellion for which he is supposed to have exacted this fine; this
+period of rebellion was after the exaction of the fine itself: so that
+the fine was not laid for the rebellion, but the rebellion broke out in
+consequence of the fine, and the violent measure accompanying it. We
+have established this, and the whole human race cannot shake it. He went
+up the country through malice, to revenge his own private wrongs, not
+those of the Company. He fixed 500,000_l._ as a mulct for an insult
+offered to himself, and then a rebellion broke out in consequence of his
+violence. This was the rebellion, and the only rebellion; it was Warren
+Hastings's rebellion,--a rebellion which arose from his own dreadful
+exaction, from his pride, from his malice and insatiable avarice,--a
+rebellion which arose from his abominable tyranny, from his lust of
+arbitrary power, and from his determination to follow the examples of
+Sujah Dowlah, Asoph ul Dowlah, Cossim Ali Khan, Aliverdy Khan, and all
+the gang of rebels who are the objects of his imitation.
+
+"_My patience_," says he, "_was exhausted_." Your Lordships have, and
+ought to have, a judicial patience. Mr. Hastings has none of any kind. I
+hold that patience is one of the great virtues of a governor; it was
+said of Moses, that he governed by patience, and that he was the meekest
+man upon earth. Patience is also the distinguishing character of a
+judge; and I think your Lordships, both with regard to us and with
+regard to him, have shown a great deal of it: we shall ever honor the
+quality, and if we pretend to say that we have had great patience in
+going through this trial, so your Lordships must have had great patience
+in hearing it. But this man's patience, as he himself tells you, was
+soon exhausted. "I considered," he says, "the light in which such
+behavior would have been viewed by his native sovereign, and I resolved
+he should feel the power he had so long insulted. Forty or fifty lacs of
+rupees would have been a moderate fine for Sujah ul Dowlah to exact,--he
+who had demanded twenty-five lacs for the mere fine of succession, and
+received twenty in hand, and an increased rent tantamount to
+considerably above thirty lacs more; and therefore I rejected the offer
+of twenty, with which the Rajah would have compromised for his guilt
+when it was too late."
+
+Now, my Lords, observe who his models were, when he intended to punish
+this man for an insult on himself. Did he consult the laws? Did he look
+to the Institutes of Timour, or to those of Genghis Khan? Did he look to
+the Hedaya, or to any of the approved authorities in this country? No,
+my Lords, he exactly followed the advice which Longinus gives to a great
+writer:--"Whenever you have a mind to elevate your mind, to raise it to
+its highest pitch, and even to exceed yourself, upon any subject, think
+how Homer would have described it, how Plato would have imagined it, and
+how Demosthenes would have expressed it; and when you have so done, you
+will then, no doubt, have a standard which will raise you up to the
+dignity of anything that human genius can aspire to." Mr. Hastings was
+calling upon himself, and raising his mind to the dignity of what
+tyranny could do, what unrighteous exaction could perform. He
+considered, he says, how much Sujah Dowlah would have exacted, and that
+he thinks would not be too much for him to exact. He boldly avows,--"I
+raised my mind to the elevation of Sujah Dowlah; I considered what
+Cossim Ali Khan would have done, or Aliverdy Khan, who murdered and
+robbed so many, I had all this line of great examples before me, and I
+asked myself what fine they would have exacted upon such an occasion.
+But," says he, "Sujah Dowlah levied a fine of twenty lacs for a right of
+succession."
+
+Good God! my Lords, if you are not appalled with the violent injustice
+of arbitrary proceedings, you must feel something humiliating at the
+gross ignorance of men who are in this manner playing with the rights of
+mankind. This man confounds a fine upon succession with a fine of
+penalty. He takes advantage of a defect in the technical language of our
+law, which, I am sorry to say, is not, in many parts, as correct in its
+distinctions and as wise in its provisions as the Mahometan law. We use
+the word _fine_ in three senses: first, as a punishment and penalty;
+secondly, as a formal means of cutting off by one form the ties of
+another form, which we call levying a fine; and, thirdly, we use the
+word to signify a sum of money payable upon renewal of a lease or
+copyhold. The word has in each case a totally different sense; but such
+is the stupidity and barbarism of the prisoner, that he confounds these
+senses, and tells you Sujah Dowlah took twenty-five lacs as a fine from
+Cheyt Sing for the renewal of his zemindary, and therefore, as a
+punishment for his offences, he shall take fifty. Suppose any one of
+your Lordships, or of us, were to be fined for assault and battery, or
+for anything else, and it should be said, "You paid such a fine for a
+bishop's lease, you paid such a fine on the purchase of an estate, and
+therefore, now that you are going to be fined for a punishment, we will
+take the measure of the fine, not from the nature and quality of your
+offence, not from the law upon the subject, or from your ability to
+pay, but the amount of a fine you paid some years ago for an estate
+shall be the measure of your punishment." My Lords, what should we say
+of such brutish ignorance, and such shocking confusion of ideas?
+
+When this man had elevated his mind according to the rules of art, and
+stimulated himself to great things by great examples, he goes on to tell
+you that he rejected the offer of twenty lacs with which the Rajah would
+have compounded for his guilt when it was too late.
+
+Permit me, my Lords, to say a few words here, by way of referring back
+all this monstrous heap of violence and absurdity to some degree of
+principle. Mr. Hastings having completely acquitted the Rajah of any
+other fault than contumacy, and having supposed even that to be only
+personal to himself, he thought a fine of 500,000_l._ would be a proper
+punishment. Now, when any man goes to exact a fine, it presupposes
+inquiry, charge, defence, and judgment. It does so in the Mahometan law;
+it does so in the Gentoo law; it does so in the law of England, in the
+Roman law, and in the law, I believe, of every nation under heaven,
+except in that law which resides in the arbitrary breast of Mr.
+Hastings, poisoned by the principles and stimulated by the examples of
+those wicked traitors and rebels whom I have before described. He
+mentions his intention of levying a fine; but does he make any mention
+of having charged the Rajah with his offences? It appears that he held
+an incredible quantity of private correspondence through the various
+Residents, through Mr. Graham, Mr. Fowke, Mr. Markham, Mr. Benn,
+concerning the affairs of that country. Did he ever, upon this alleged
+contumacy, (for at present I put the rebellion out of the question,)
+inquire the progress of this personal affront offered to the
+Governor-General of Bengal? Did he ever state it to the Rajah, or did he
+call his vakeel before the Council to answer the charge? Did he examine
+any one person, or particularize a single fact, in any manner whatever?
+No. What, then, did he do? Why, my Lords, he declared himself the person
+injured, stood forward as the accuser, assumed the office of judge, and
+proceeded to judgment without a party before him, without trial, without
+examination, without proof. He thus directly reversed the order of
+justice. He determined to fine the Rajah when his own patience, as he
+says, was exhausted, not when justice demanded the punishment. He
+resolved to fine him in the enormous sum of 500,000_l._ Does he inform
+the Council of this determination? No. The Court of Directors? No. Any
+one of his confidants? No, not one of them,--not Mr. Palmer, not Mr.
+Middleton, nor any of that legion of secretaries that he had; nor did he
+even inform Mr. Malcolm [Markham?] of his intentions, until he met him
+at Boglipore.
+
+In regard to the object of his malice, we only know that many letters
+came from Cheyt Sing to Mr. Hastings, in which the unfortunate man
+endeavored to appease his wrath, and to none of which he ever gave an
+answer. He is an accuser preferring a charge and receiving apologies,
+without giving the party an answer, although he had a crowd of
+secretaries about him, maintained at the expense of the miserable people
+of Benares, and paid by sums of money drawn fraudulently from their
+pockets. Still not one word of answer was given, till he had formed the
+resolution of exacting a fine, and had actually by torture made his
+victim's servant discover where his master's treasures lay, in order
+that he might rob him of all his family possessed. Are these the
+proceedings of a British judge? or are they not rather such as are
+described by Lord Coke (and these learned gentlemen, I dare say, will
+remember the passage; it is too striking not to be remembered) as _"the
+damned and damnable proceedings of a judge in hell_"? Such a judge has
+the prisoner at your bar proved himself to be. First he determines upon
+the punishment, then he prepares the accusation, and then by torture and
+violence endeavors to extort the fine.
+
+My Lords, I must again beg leave to call your attention to his mode of
+proceeding in this business. He never entered any charge. He never
+answered any letter. Not that he was idle. He was carrying on a wicked
+and clandestine plot for the destruction of the Rajah, under the
+pretence of this fine; although the plot was not known, I verily
+believe, to any European at the time. He does not pretend that he told
+any one of the Company's servants of his intentions of fining the Rajah;
+but that some hostile project against him had been formed by Mr.
+Hastings was perfectly well known to the natives. Mr. Hastings tells
+you, that Cheyt Sing had a vakeel at Calcutta, whose business it was to
+learn the general transactions of our government, and the most minute
+particulars which could in any manner affect the interest of his
+employer.
+
+I must here tell your Lordships, that there is no court in Asia, from
+the highest to the lowest, no petty sovereign, that does not both employ
+and receive what they call _hircarrahs_, or, in other words, persons to
+collect and to communicate political intelligence. These men are
+received with the state and in the rank of ambassadors; they have their
+place in the durbar; and their business, as authorized spies, is as well
+known there as that of ambassadors extraordinary and ordinary in the
+courts of Europe. Mr. Hastings had a public spy, in the person of the
+Resident, at Benares, and he had a private spy there in another person.
+The spies employed by the native powers had by some means come to the
+knowledge of Mr. Hastings's clandestine and wicked intentions towards
+this unhappy man, Cheyt Sing, and his unhappy country, and of his
+designs for the destruction and the utter ruin of both. He has himself
+told you, and he has got Mr. Anderson to vouch it, that he had received
+proposals for the sale of this miserable man and his country. And from
+whom did he receive these proposals, my Lords? Why, from the Nabob Asoph
+ul Dowlah, to whom he threatened to transfer both the person of the
+Rajah and his zemindary, if he did not redeem himself by some pecuniary
+sacrifice. Now Asoph ul Dowlah, as appears by the minutes on your
+Lordships' table, was at that time a bankrupt. He was in debt to the
+Company tenfold more than he could pay, and all his revenues were
+sequestered for that debt. He was a person of the last degree of
+indolence with the last degree of rapacity,--a man of whom Mr. Hastings
+declared, that he had wasted and destroyed by his misgovernment the
+fairest provinces upon earth, that not a person in his dominions was
+secure from his violence, and that even his own father could not enjoy
+his life and honor in safety under him. This avaricious bankrupt tyrant,
+who had beggared and destroyed his own subjects, and could not pay his
+debts to the English government, was the man with whom Mr. Hastings was
+in treaty to deliver up Cheyt Sing and his country, under pretence of
+his not having paid regularly to the Company those customary payments
+which the tyrant would probably have never paid at all, if he had been
+put in possession of the country. This I mention to illustrate Mr.
+Hastings's plans of economy and finance, without considering the
+injustice and cruelty of delivering up a man to the hereditary enemy of
+his family.
+
+It is known, my Lords, that Mr. Hastings, besides having received
+proposals for delivering up the beautiful country of Benares, that
+garden of God, as it is styled in India, to that monster, that rapacious
+tyrant, Asoph ul Dowlah, who with his gang of mercenary troops had
+desolated his own country like a swarm of locusts, had purposed likewise
+to seize Cheyt Sing's own patrimonial forts, which was nothing less than
+to take from him the residence of his women and his children, the seat
+of his honor, the place in which the remaining treasures and last hopes
+of his family were centred. By the Gentoo law, every lord or supreme
+magistrate is bound to construct and to live in such a fort. It is the
+usage of India, and is a matter of state and dignity, as well as of
+propriety, reason, and defence. It was probably an apprehension of being
+injured in this tender point, as well as a knowledge of the proposal
+made by the Nabob, which induced Cheyt Sing to offer to buy himself off;
+although it does not appear from any part of the evidence that he
+assigned any other reason than that of Mr. Hastings intending to exact
+from him six lacs of rupees over and above his other exactions.
+
+Mr. Hastings, indeed, almost acknowledges the existence of this plot
+against the Rajah, and his being the author of it. He says, without any
+denial of the fact, that the Rajah suspected some strong acts to be
+intended against him, and therefore asked Mr. Markham whether he could
+not buy them off and obtain Mr. Hastings's favor by the payment of
+200,000_l._ Mr. Markham gave as his opinion, that 200,000_l._ was not
+sufficient; and the next day the Rajah offered 20,000_l._ more, in all
+220,000_l._ The negotiation, however, broke off; and why? Not, as Mr.
+Markham says he conjectured, because the Rajah had learned that Mr.
+Hastings had no longer an intention of imposing these six lacs, or
+something to that effect, and therefore retracted his offer, but because
+that offer had been rejected by Mr. Hastings.
+
+Let us hear what reason the man who was in the true secret gives for not
+accepting the Rajah's offer. "I rejected," says Mr. Hastings, "the offer
+of twenty lacs, with which the Rajah would have compromised for his
+guilt when it was too late." My Lords, he best knows what the motives of
+his own actions were. He says, the offer was made "when it was too
+late." Had he previously told the Rajah what sum of money he would be
+required to pay in order to buy himself off, or had he required him to
+name any sum which he was willing to pay? Did he, after having refused
+the offer made by the Rajah, say, "Come and make me a better offer, or
+upon such a day I shall declare that your offers are inadmissible"? No
+such thing appears. Your Lordships will further remark, that Mr.
+Hastings refused the 200,000_l._ at a time when the exigencies of the
+Company were so pressing that he was obliged to rob, pilfer, and steal
+upon every side,--at a time when he was borrowing 40,000_l._ from Mr.
+Sulivan in one morning, and raising by other under-jobs 27,000_l._ more.
+In the distress [in?] which his own extravagance and prodigality had
+involved him, 200,000_l._ would have been a weighty benefit, although
+derived from his villany; but this relief he positively refused,
+because, says he, "the offer came too late." From these words, my Lords,
+we may infer that there was a time when the offer would not have been
+"too late,"--a period at which it would have been readily accepted. No
+such thing appears. There is not a trace upon your minutes, not a trace
+in the correspondence of the Company, to prove that the Rajah would at
+any time have been permitted to buy himself off from this complicated
+tyranny.
+
+I have already stated a curious circumstance in this proceeding, to
+which I must again beg leave to direct your Lordships' attention. Does
+it anywhere appear in that correspondence, or in the testimony of Mr.
+Benn, of Mr. Markham, or of any human being, that Mr. Hastings had ever
+told Cheyt Sing with what sum he should be satisfied? There is evidence
+before you directly in proof that they did not know the amount. Not one
+person knew what his intention was, when he refused this 200,000_l._ For
+when he met Mr. Markham at Boglipore, and for the first time mentioned
+the sum of 500,000_l._ as the fine he meant to exact, Mr. Markham was
+astonished and confounded at its magnitude. He tells you this himself.
+It appears, then, that neither Cheyt Sing nor the Resident at Benares
+(who ought to have been in the secret, if upon such an occasion secrecy
+is allowable) ever knew what the terms were. The Rajah was in the dark;
+he was left to feel, blindfold, how much money could relieve him from
+the iniquitous intentions of Mr. Hastings; and at last he is told that
+his offer comes too late, without having ever been told the period at
+which it would have been well-timed, or the amount it was proposed to
+take from him. Is this, my Lords, the proper way to adjudge a fine?
+
+Your Lordships will now be pleased to advert to the manner in which he
+defends himself and these proceedings. He says, "I rejected this offer
+of twenty lacs, with which the Rajah would have compromised for his
+guilt when it was too late." If by these words he means too late to
+answer the purpose for which he has said the fine was designed, namely,
+the relief of the Company, the ground of his defence is absolutely
+false; for it is notorious that at the time referred to the Company's
+affairs were in the greatest distress.
+
+I will next call your Lordships' attention to the projected sale of
+Benares to the Nabob of Oude. "If," says Mr. Hastings, "I ever talked of
+selling the Company's sovereignty over Benares to the Nabob of Oude, it
+was but _in terrorem_; and no subsequent act of mine warrants the
+supposition of my having seriously intended it." And in another place he
+says, "If I ever threatened" (your Lordships will remark, that he puts
+hypothetically a matter the reality of which he has got to be solemnly
+declared on an affidavit, and in a narrative to the truth of which he
+has deposed upon oath)--"if I ever threatened," says he, "to dispossess
+the Rajah of his territories, it is no more than what my predecessors,
+without rebuke from their superiors, or notice taken of the expression,
+had wished and intended to have done to his father, even when the
+Company had no pretensions to the sovereignty of the country. It is no
+more than such a legal act of sovereignty as his behavior justified, and
+as I was justified in by the intentions of my predecessors. If I
+pretended to seize upon his forts, it was in full conviction that a
+dependant on the Company, guarantied, maintained, and protected in his
+country by the Company's arms, had no occasion for forts, had no right
+to them, and could hold them for no other than suspected and rebellious
+purposes. None of the Company's other zemindars are permitted to
+maintain them; and even our ally, the Nabob of the Carnatic, has the
+Company's troops in all his garrisons. Policy and public safety
+absolutely require it. What state could exist that allowed its inferior
+members to hold forts and garrisons independent of the superior
+administration? It is a solecism in government to suppose it."
+
+Here, then, my Lords, he first declares that this was merely done _in
+terrorem_; that he never intended to execute the abominable act. And
+will your Lordships patiently endure that such terrific threats as these
+shall be hung by your Governor in India over the unhappy people that are
+subject to him and protected by British faith? Will you permit, that,
+for the purpose of extorting money, a Governor shall hold out the
+terrible threat of delivering a tributary prince and his people, bound
+hand and foot, into the power of their perfidious enemies?
+
+The terror occasioned by threatening to take from him his forts can only
+be estimated by considering, that, agreeably to the religion and
+prejudices of Hindoos, the forts are the places in which their women are
+lodged, in which, according to their notions, their honor is deposited,
+and in which is lodged all the wealth that they can save against an evil
+day to purchase off the vengeance of an enemy. These forts Mr. Hastings
+says he intended to take, because the Rajah could hold them for no other
+than rebellious and suspected purposes. Now I will show your Lordships
+that the man who has the horrible audacity to make this declaration did
+himself assign to the Rajah these very forts. He put him in possession
+of them, and, when there was a dispute about the Nabob's rights to them
+on the one side and the Company's on the other, did confirm them to this
+man. The paper shall be produced, that you may have before your eyes the
+gross contradictions into which his rapacity and acts of arbitrary power
+have betrayed him. Thank God, my Lords, men that are greatly guilty are
+never wise. I repeat it, men that are greatly guilty are never wise. In
+their defence of one crime they are sure to meet the ghost of some
+former defence, which, like the spectre in Virgil, drives them back. The
+prisoner at your bar, like the hero of the poet, when he attempts to
+make his escape by one evasion, is stopped by the appearance of some
+former contradictory averment. If he attempts to escape by one door,
+there his criminal allegations of one kind stop him; if he attempts to
+escape at another, the facts and allegations intended for some other
+wicked purpose stare him full in the face.
+
+             Quacunque viam sibi fraude petivit,
+    Successum Dea dira negat.
+
+The paper I hold in my hand contains Nundcomar's accusation of Mr.
+Hastings. It consists of a variety of charges; and I will first read to
+you what is said by Nundcomar of these forts, which it is pretended
+could be held for none but suspicious and rebellious purposes.
+
+"At the time Mr. Hastings was going to Benares, he desired me to give
+him an account in writing of any lands which, though properly belonging
+to the Subah of Bahar, might have come under the dominion of Bulwant
+Sing, that they might be recovered from his son, Rajah Cheyt Sing. The
+purgunnahs of Kera, Mungrora, and Bidjegur were exactly in this
+situation, having been usurped by Bulwant Sing from the Subah of Bahar.
+I accordingly delivered to Mr. Hastings the accounts of them, from the
+entrance of the Company upon the dewanny to the year 1179 of the Fusseli
+era, stated at twenty-four lacs. Mr. Hastings said, 'Give a copy of this
+to Roy Rada Churn, that, if Cheyt Sing is backward in acknowledging this
+claim, Rada Churn may answer and confute him.' Why Mr. Hastings, when he
+arrived at Benares, and had called Rajah Cheyt Sing before him, left
+these countries still in the Rajah's usurpations it remains with Mr.
+Hastings to explain."
+
+This is Nundcomar's charge. Here follows Mr. Hastings's reply.
+
+"I recollect an information given me by Nundcomar concerning the
+pretended usurpations made by the Rajah of Benares, of the purgunnahs of
+Kera, Mungrora, and Bidjegur." (Your Lordships will recollect that
+Bidjegur is one of those very forts which he declares could not be held
+but for suspicious and rebellious purposes.) "I do not recollect his
+mentioning it again, when I set out for Benares; neither did I ever
+intimate the subject, either to Cheyt Sing or his ministers, because I
+knew I could not support the claim; and to have made it and dropped it
+would have been in every sense dishonorable. Not that I passed by it
+with indifference or inattention. I took pains to investigate the
+foundation of this title, and recommended it to the particular inquiry
+of Mr. Vansittart, who was the Chief of Patna, at the time in which I
+received the first intimation. The following letter and voucher, which I
+received from him, contain a complete statement of this pretended
+usurpation."
+
+These vouchers will answer our purpose, fully to establish that in his
+opinion the claim of the English government upon those forts was at that
+time totally unfounded, and so absurd that he did not even dare to
+mention it. This fort of Bidjegur, the most considerable in the country,
+and of which we shall have much to say hereafter, is the place in which
+Cheyt Sing had deposited his women and family. That fortress did Mr.
+Hastings himself give to this very man, deciding in his favor as a
+judge, upon an examination and after an inquiry: and yet he now declares
+that he had no right to it, and that he could not hold it but for wicked
+and rebellious purposes. But, my Lords, when he changed this language,
+he had resolved to take away these forts,--to destroy them,--to root the
+Rajah out of every place of refuge, out of every secure place in which
+he could hide his head, or screen himself from the rancor, revenge,
+avarice, and malice of his ruthless foe. He was resolved to have them,
+although he had, upon the fullest conviction of the Rajah's right, given
+them to this very man, and put him into the absolute possession of them.
+
+Again, my Lords, did he, when Cheyt Sing, in 1775, was put in possession
+by the _pottah_ of the Governor-General and Council, which contains an
+enumeration of the names of all the places which were given up to him,
+and consequently of this among the rest,--did he, either before he put
+the question in Council upon that pottah, or afterwards, tell the
+Council they were going to put forts into the man's hands to which he
+had no right, and which could be held only for rebellious and suspected
+purposes? We refer your Lordships to the places in which all these
+transactions are mentioned, and you will there find Mr. Hastings took no
+one exception whatever against them; nor, till he was resolved upon the
+destruction of this unhappy man, did he ever so much as mention them. It
+was not till then that he discovers the possession of these forts by the
+Rajah to be _a solecism in government_.
+
+After quoting the noble examples of Sujah Dowlah, and the other persons
+whom I have mentioned to you, he proceeds to say, that some of his
+predecessors, without any pretensions to sovereign authority, endeavored
+to get these forts into their possession; and "I was justified," says
+he, "by the intention of my predecessors." Merciful God! if anything can
+surpass what he has said before, it is this: "My predecessors, without
+any title of sovereignty, without any right whatever, wished to get
+these forts into their power; I therefore have a right to do what they
+wished to do; and I am justified, not by the acts, but by the
+_intentions_ of my predecessors." At the same time he knows that these
+predecessors had been reprobated by the Company for this part of their
+proceedings; he knew that he was sent there to introduce a better
+system, and to put an end to this state of rapacity. Still, whatever his
+predecessors _wished_, however unjust and violent it might be, when the
+sovereignty came into his hands, he maintains that he had a right to do
+all which they were desirous of accomplishing. Thus the enormities
+formerly practised, which the Company sent him to correct, became a
+sacred standard for his imitation.
+
+Your Lordships will observe that he slips in the word _sovereignty_ and
+forgets compact; because it is plain, and your Lordships must perceive
+it, that, wherever he uses the word sovereignty, he uses it to destroy
+the authority of all compacts; and accordingly in the passage now before
+us he declares that there is an invalidity in all compacts entered into
+in India, from the nature, state, and constitution of that empire. "From
+the disorderly form of its government," says he, "there is an invalidity
+in all compacts and treaties whatever." "Persons who had no treaty with
+the Rajah wished," says he, "to rob him: therefore I, who have a treaty
+with him, and call myself his sovereign, have a right to realize all
+their wishes."
+
+But the fact is, my Lords, that his predecessors never did propose to
+deprive Bulwant Sing, the father of Cheyt Sing, of his zemindary. They,
+indeed, wished to have had the dewanny transferred to them, in the
+manner it has since been transferred to the Company. They wished to
+receive his rents, and to be made an intermediate party between him and
+the Mogul emperor, his sovereign. These predecessors had entered into
+no compact with the man: they were negotiating with his sovereign for
+the transfer of the dewanny or stewardship of the country, which
+transfer was afterwards actually executed; but they were obliged to give
+the country itself back again to Bulwant Sing, with a guaranty against
+all the pretensions of Sujah Dowlah, who had tyrannically assumed an
+arbitrary power over it. This power the predecessors of Mr. Hastings
+might also have wished to assume; and he may therefore say, according to
+the mode of reasoning which he has adopted,--"Whatever they wished to
+do, but never succeeded in doing, I may and ought to do of my own will.
+Whatever fine Sujah Dowlah would have exacted I will exact. I will
+penetrate into that tiger's bosom, and discover the latent seeds of
+rapacity and injustice which lurk there, and I will make him the subject
+of my imitation."
+
+These are the principles upon which, without accuser, without judge,
+without inquiry, he resolved to lay a fine of 500,000_l._ on Cheyt Sing!
+
+In order to bind himself to a strict fulfilment of this resolution, he
+has laid down another very extraordinary doctrine. He has laid it down
+as a sort of canon, (in injustice and corruption,) that, whatever
+demand, whether just or unjust, a man declares his intention of making
+upon another, he should exact the precise sum which he has determined
+upon, and that, if he takes anything less, it is a proof of corruption.
+"I have," says he, "shown by this testimony that I never intended to
+make any communication to Cheyt Sing of taking less than the fifty lacs
+which in my own mind I had resolved to exact." And he adds,--"I shall
+make my last and solemn appeal to the breast of every man who shall read
+this, whether it is likely, or morally possible, that I should have tied
+down my own future conduct to so decided a process and series of acts,
+if I had secretly intended to threaten, or to use a degree of violence,
+for no other purpose than to draw from the object of it a mercenary
+atonement for my own private emolument, and suffer all this tumult to
+terminate in an ostensible and unsubstantial submission to the authority
+which I represented."
+
+He had just before said, "If I ever talked of selling the Company's
+sovereignty to the Nabob of Oude, it was only _in terrorem_." In the
+face of this assertion, he here gives you to understand he never held
+out anything _in terrorem_, but what he intended to execute. But we will
+show you that in fact he had reserved to himself a power of acting _pro
+re nata_, and that he intended to compound or not, just as answered his
+purposes upon this occasion. "I admit," he says, "that I did not enter
+it [the intention of fining Cheyt Sing] on the Consultations, because it
+was not necessary; even this plan itself of the fine was not a fixed
+plan, but to be regulated by circumstances, both as to the substantial
+execution of it and the mode." Now here is a man who has given it in a
+sworn narrative, that he did not intend to have a farthing less. Why?
+"Because I should have menaced and done as in former times has been
+done,--made great and violent demands which I reduce afterwards for my
+own corrupt purposes." Yet he tells you in the course of the same
+defence, but in another paper, that he had no fixed plan, that he did
+not know whether he should exact a fine at all, or what should be his
+mode of executing it.
+
+My Lords, what shall we say to this man, who declares that it would be a
+proof of corruption not to exact the full sum which he had threatened to
+exact, but who, finding that this doctrine would press hard upon him,
+and be considered as a proof of cruelty and injustice, turns round and
+declares he had no intention of exacting anything? What shall we say to
+a man who thus reserves his determination, who threatens to sell a
+tributary prince to a tyrant, and cannot decide whether he should take
+from him his forts and pillage him of all he had, whether he should
+raise 500,000_l._ upon him, whether he should accept the 220,000_l._
+offered, (which, by the way, we never knew of till long after the whole
+transaction,) whether he should do any or all of those things, and then,
+by his own account, going up to Benares without having resolved anything
+upon this important subject?
+
+My Lords, I will now assume the hypothesis that he at last discovered
+sufficient proof of rebellious practices; still even this gave him no
+right to adduce such rebellion in justification of resolutions which he
+had taken, of acts which he had done, before he knew anything of its
+existence. To such a plea we answer, and your Lordships will every one
+of you answer,--"You shall not by a subsequent discovery of rebellious
+practices, which you did not know at the time, and which you did not
+even believe, as you have expressly told us here, justify your conduct
+prior to that discovery." If the conspiracy which he falsely imputes to
+Cheyt Sing, if that wild scheme of driving the English out of India, had
+existed, think in what miserable circumstances we stand as prosecutors,
+and your Lordships as judges, if we admit a discovery to be pleaded in
+justification of antecedent acts founded upon the assumed existence of
+that which he had no sort of proof, knowledge, or belief of!
+
+My Lords, we shall now proceed to another circumstance, not less
+culpable in itself, though less shocking to your feelings, than those to
+which I have already called your attention: a circumstance which throws
+a strong presumption of guilt upon every part of the prisoner's conduct.
+Having formed all these infernal plots in his mind, but uncertain which
+of them he should execute, uncertain what sums of money he should
+extort, whether he should deliver up the Rajah to his enemy or pillage
+his forts, he goes up to Benares; but he first delegates to himself all
+the powers of government, both civil and military, in the countries
+which he was going to visit.
+
+My Lords, we have asserted in our charge that this delegation and
+division of power was illegal. He invested _himself_ with this
+authority; for _he_ was the majority in the Council: Mr. Wheler's
+consent or dissent signifying nothing. He gave himself powers which the
+act of Parliament did not give him. He went up to Benares with an
+illegal commission, civil and military; and to prove this I shall beg
+leave to read the provisions of the act of Parliament. I shall show what
+the creature ought to be, by showing the law of the creator: what the
+legislature of Great Britain meant that Governor Hastings should be, not
+what he made himself.
+
+     [_Mr. Burke then read the seventh section of the act._]
+
+Now we do deny that there is by this act given, or that under this act
+there can be given, to the government of India, a power of dividing its
+unity into two parts, each of which shall separately be a unity and
+possess the power given to the whole. Yet, my Lords, an agreement was
+made between him and Mr. Wheler, that he (Mr. Hastings) should have
+every power, civil and military, in the upper provinces, and that Mr.
+Wheler should enjoy equal authority in the lower ones.
+
+Now, to show you that it is impossible for such an agreement to be
+legal, we must refer you to the constitution of the Company's
+government. The whole power is vested in the Council, where all
+questions are to be decided by a majority of voices, and the members are
+directed to record in the minutes of their proceedings not only the
+questions decided, but the grounds upon which each individual member
+founds his vote. Now, although the Council is competent to delegate its
+authority for any _specific_ purpose to any servant of the Company, yet
+to admit that it can delegate its authority _generally_, without
+reserving the means of deliberation and control, would be to change the
+whole constitution. By such a proceeding the government may be divided
+into a number of independent governments, without a common deliberative
+Council and control. This deliberative capacity, which is so strictly
+guarded by the obligation of recording its consultations, would be
+totally annihilated, if the Council divided itself into independent
+parts, each acting according to its own discretion. There is no similar
+instance in law, there is no similar instance in policy. The conduct of
+these men implies a direct contradiction; and you will see, by the
+agreement they made to support each other, that they were themselves
+conscious of the illegality of this proceeding.
+
+After Mr. Hastings had conferred absolute power upon himself during his
+stay in the upper provinces by an order of Council, (of which Council he
+was himself a majority,) he entered the following minute in the
+Consultations. "The Governor-General delivers in the following minute.
+In my minute which I laid before the court on the 21st May, I expressed
+the satisfaction with which I could at this juncture leave the
+Presidency, from the mutual confidence which was happily established
+between Mr. Wheler and me. I now readily repeat that sentiment, and
+observe with pleasure that Mr. Wheler confirms it. Before my departure,
+it is probable that we shall in concert have provided at the board for
+almost every important circumstance that can eventually happen during my
+absence; but if any should occur for which no previous provision shall
+have been made in the resolutions of the board, Mr. Wheler may act with
+immediate decision, and with the fullest confidence of my support, in
+all such emergencies, as well as in conducting the ordinary business of
+the Presidency, and in general in all matters of this government,
+excepting those which may specially or generally be intrusted to me. Mr.
+Wheler during my absence may consider himself as possessed of the full
+powers of the Governor-General and Council of this government, as in
+effect he is by the constitution; and he may be assured, that, so far as
+my sanction and concurrence shall be, or be deemed, necessary to the
+confirmation of his measures, he shall receive them."
+
+Now here is a compact of iniquity between these two duumvirs. They each
+give to the other the full, complete, and perfect powers of the
+government; and in order to secure themselves against any obstacles that
+might arise, they mutually engage to ratify each other's acts: and they
+say this is not illegal, because Lord Cornwallis has had such a
+deputation. I must first beg leave to observe that no man can justify
+himself in doing any illegal act by its having been done by another;
+much less can he justify his own illegal act by pleading an act of the
+same kind done subsequently to his act, because the latter may have been
+done in consequence of his bad example. Men justify their acts in two
+ways,--by law and by precedent; the former asserts the right, the latter
+presumes it from the example of others. But can any man justify an act,
+because ten or a dozen years after another man has done the same thing?
+Good heavens! was there ever such a doctrine before heard? Suppose Lord
+Cornwallis to have done wrong; suppose him to have acted illegally; does
+that clear the prisoner at your bar? No: on the contrary, it aggravates
+his offence; because he has afforded others an example of corrupt and
+illegal conduct. But if even Lord Cornwallis had preceded, instead of
+following him, the example would not have furnished a justification.
+There is no resemblance in the cases. Lord Cornwallis does not hold his
+government by the act of 1773, but by a special act made afterwards; and
+therefore to attempt to justify acts done under one form of appointment
+by acts done under another form is to the last degree wild and absurd.
+Lord Cornwallis was going to conduct a war of great magnitude, and was
+consequently trusted with extraordinary powers. He went in the two
+characters of governor and commander-in-chief; and yet the legislature
+was sensible of the doubtful validity of a Governor-General's carrying
+with him the whole powers of the Council. But Mr. Hastings was not
+commander-in-chief, when he assumed the whole military as well as civil
+power. Lord Cornwallis, as I have just said, was not only
+commander-in-chief, but was going to a great war, where he might have
+occasion to treat with the country powers in a civil capacity; and yet
+so doubtful was the legislature upon this point, that they passed a
+special act to confirm that delegation, and to give him a power of
+acting under it.
+
+My Lords, we do further contend that Mr. Hastings had no right to assume
+the character of commander-in-chief; for he was no military man, nor was
+he appointed by the Company to that trust. His assumption of the
+military authority was a gross usurpation. It was an authority to which
+he would have had no right, if the whole powers of government were
+vested in him, and he had carried his Council with him on his horse. If,
+I say, Mr. Hastings had his Council on his crupper, he could neither
+have given those powers to himself nor made a partition of them with Mr.
+Wheler. Could Lord Cornwallis, for instance, who carried with him the
+power of commander-in-chief, and authority to conclude treaties with all
+the native powers, could he, I ask, have left a Council behind him in
+Calcutta with equal powers, who might have concluded treaties in direct
+contradiction to those in which he was engaged? Clearly he could not;
+therefore I contend that this partition of power, which supposes an
+integral authority in each counsellor, is a monster that cannot exist.
+This the parties themselves felt so strongly that they were obliged to
+have recourse to a stratagem scarcely less absurd than their divided
+assumption of power. They entered into a compact to confirm each other's
+acts, and to support each other in whatever they did: thus attempting to
+give their separate acts a legal form.
+
+I have further to remark to your Lordships, what has just been suggested
+to me, that it was for the express purpose of legalizing Lord
+Cornwallis's delegation that he was made commander-in-chief as well as
+Governor-General by the act.
+
+The next plea urged by Mr. Hastings is conveniency. "It was
+_convenient_," he says, "for me to do this." I answer, No person acting
+with delegated power can delegate that power to another. _Delegatus non
+potest delegare_ is a maxim of law. Much less has he a right to
+supersede the law, and the principle of his own delegation and
+appointment, upon any idea of convenience. But what was the conveniency?
+There was no one professed object connected with Mr. Hastings's going up
+to Benares which might not as well have been attained in Calcutta. The
+only difference would have been, that in the latter case he must have
+entered some part of his proceedings upon the Consultations, whether he
+wished it or not. If he had a mind to negotiate with the Vizier, he had
+a resident at his court, and the Vizier had a resident in Calcutta. The
+most solemn treaties had often been made without any Governor-General
+carrying up a delegation of civil and military power. If it had been
+his object to break treaties, he might have broken them at Calcutta, as
+he broke the treaty of Chunar. Is there an article in that treaty that
+he might not as well have made at Calcutta? Is there an article that he
+broke (for he broke them all) that he could not have broken at Calcutta?
+So that, whether pledging or breaking the faith of the Company, he might
+have done both or either without ever stirring from the Presidency.
+
+I can conceive a necessity so urgent as to supersede all laws; but I
+have no conception of a necessity that can require two
+governors-general, each forming separately a _supreme_ council. Nay, to
+bring the point home to him,--if he had a mind to make Cheyt Sing to pay
+a fine, as he called it, he could have made him do that at Calcutta as
+well as at Benares. He had before contrived to make him pay all the
+extra demands that were imposed upon him; and he well knew that he could
+send Colonel Camac, or somebody else, to Benares, with a body of troops
+to enforce the payment. Why, then, did he go to try experiments there in
+his own person? For this plain reason: that he might be enabled to put
+such sums in his own pocket as he thought fit. It was not and could not
+be for any other purpose; and I defy the wit of man to find out any
+other.
+
+He says, my Lords, that Cheyt Sing might have resisted, and that, if he
+had not been there, the Rajah might have fled with his money, or raised
+a rebellion for the purpose of avoiding payment. Why, then, we ask, did
+he not send an army? We ask, whether Mr. Markham, with an army under the
+command of Colonel Popham, or Mr. Fowke, or any other Resident, was not
+much more likely to exact a great sum of money than Mr. Hastings
+without an army? My Lords, the answer must be in the affirmative; it is
+therefore evident that no necessity could exist for his presence, and
+that his presence and conduct occasioned his being defeated in this
+matter.
+
+We find this man, armed with an illegal commission, undertaking an
+enterprise which he has since said was perilous, which proved to be
+perilous, and in which, as he has told us himself, the existence of the
+British empire in India was involved. The talisman, (your Lordships will
+remember his use of the word,) that charm which kept all India in order,
+which kept mighty and warlike nations under the government of a few
+Englishmen, would, I verily believe, have been broken forever, if he, or
+any other Governor-General, good or bad, had been killed. Infinite
+mischiefs would have followed such an event. The situation in which he
+placed himself, by his own misconduct, was pregnant with danger; and he
+put himself in the way of that danger without having any armed force
+worth mentioning, although he has acknowledged that Cheyt Sing had then
+an immense force. In fact, the demand of two thousand cavalry proves
+that he considered the Rajah's army to be formidable; yet,
+notwithstanding this, with four companies of sepoys, poorly armed and
+ill provisioned, he went to invade that fine country, and to force from
+its sovereign a sum of money, the payment of which he had reason to
+think would be resisted. He thus rashly hazarded his own being and the
+being of all his people.
+
+"But," says he, "I did not imagine the Rajah intended to go into
+rebellion, and therefore went unarmed." Why, then, was his presence
+necessary? Why did he not send an order from Calcutta for the payment of
+the money? But what did he do, when he got there? "I was alarmed," says
+he; "for the Rajah surrounded my budgero with two thousand men: that
+indicated a hostile disposition." Well, if he did so, what precaution
+did Mr. Hastings take for his own safety? Why, none, my Lords, none. He
+must therefore have been either a madman, a fool, or a determined
+declarer of falsehood. Either he thought there was no danger, and
+therefore no occasion for providing against it, or he was the worst of
+governors, the most culpably improvident of his personal safety, of the
+lives of his officers and men, and of his country's honor.
+
+The demand of 500,000_l._ was a thing likely to irritate the Rajah and
+to create resistance. In fact, he confesses this. Mr. Markham and he had
+a discourse upon that subject, and agreed to arrest the Rajah, because
+they thought the enforcing this demand might drive him to his forts, and
+excite a rebellion in the country. He therefore knew there was danger to
+be apprehended from this act of violence. And yet, knowing this, he sent
+one unarmed Resident to give the orders, and four unarmed companies of
+sepoys to support him. He provokes the people, he goads them with every
+kind of insult added to every kind of injury, and then rushes into the
+very jaws of danger, provoking a formidable foe by the display of a
+puny, insignificant force.
+
+In expectation of danger, he seized the person of the Rajah, and he
+pretends that the Rajah suffered no disgrace from his arrest. But, my
+Lords, we have proved, what was stated by the Rajah, and was well known
+to Mr. Hastings, that to imprison a person of elevated station, in that
+country, is to subject him to the highest dishonor and disgrace, and
+would make the person so imprisoned utterly unfit to execute the
+functions of government ever after.
+
+I have now to state to your Lordships a transaction which is worse than
+his wantonly playing with the safety of the Company, worse than his
+exacting sums of money by fraud and violence. My Lords, the history of
+this transaction must be prefaced by describing to your Lordships the
+duty and privileges attached to the office of _Naib_. A Naib is an
+officer well known in India, as the administrator of the affairs of any
+government, whenever the authority of the regular holder is suspended.
+But, although the Naib acts only as a deputy, yet, when the power of the
+principal is totally superseded, as by imprisonment or otherwise, and
+that of the Naib is substituted, he becomes the actual sovereign, and
+the principal is reduced to a mere pensioner. I am now to show your
+Lordships whom Mr. Hastings appointed as Naib to the government of the
+country, after he had imprisoned the Rajah.
+
+Cheyt Sing had given him to understand through Mr. Markham, that he was
+aware of the design of suspending him, and of placing his government in
+the hands of a Naib whom he greatly dreaded. This person was called
+Ussaun Sing; he was a remote relation of the family, and an object of
+their peculiar suspicion and terror. The moment Cheyt Sing was arrested,
+he found that his prophetic soul spoke truly; for Mr. Hastings actually
+appointed this very man to be his master. And who was this man? We are
+told by Mr. Markham, in his evidence here, that he was a man who had
+dishonored his family,--he was the disgrace of his house,--that he was a
+person who could not be trusted; and Mr. Hastings, in giving Mr. Markham
+full power afterwards to appoint Naibs, expressly excepted this Ussaun
+Sing from all trust whatever, as a person totally unworthy of it. Yet
+this Ussaun Sing, the disgrace and calamity of his family, an incestuous
+adulterer, and a supposed issue of a guilty connection, was declared
+Naib. Yes, my Lords, this degraded, this wicked and flagitious
+character, the Rajah's avowed enemy, was, in order to heighten the
+Rajah's disgrace, to embitter his ruin, to make destruction itself
+dishonorable as well as destructive, appointed this [his?] Naib. Thus,
+when Mr. Hastings had imprisoned the Rajah, in the face of his subjects,
+and in the face of all India, without fixing any term for the duration
+of his imprisonment, he delivered up the country to a man whom he knew
+to be utterly undeserving, a man whom he kept in view for the purpose of
+frightening the Rajah, and whom he was obliged to depose on account of
+his misconduct almost as soon as he had named him, and to exclude
+specially from all kind of trust. We have heard of much tyranny,
+avarice, and insult in the world; but such an instance of tyranny,
+avarice, and insult combined has never before been exhibited.
+
+We are now come to the last scene of this flagitious transaction. When
+Mr. Hastings imprisoned the Rajah, he did not renew his demand for the
+500,000_l._, but he exhibited a regular charge of various pretended
+delinquencies against him, digested into heads, and he called on him, in
+a dilatory, irregular way of proceeding, for an answer. The man, under
+every difficulty and every distress, gave an answer to every particular
+of the charge, as exact and punctilious as could have been made to
+articles of impeachment in this House.
+
+I must here request your Lordships to consider the order of these
+proceedings. Mr. Hastings, having determined upon the utter ruin and
+destruction of this unfortunate prince, endeavored, by the arrest of his
+person, by a contemptuous disregard to his submissive applications, by
+the appointment of a deputy who was personally odious to him, and by the
+terror of still greater insults, he endeavored, I say, to goad him on to
+the commission of some acts of resistance sufficient to give a color of
+justice to that last dreadful extremity to which he had resolved to
+carry his malignant rapacity. Failing in this wicked project, and
+studiously avoiding the declaration of any terms upon which the Rajah
+might redeem himself from these violent proceedings, he next declared
+his intention of seizing his forts, the depository of his victim's
+honor, and of the means of his subsistence. He required him to deliver
+up his accounts and accountants, together with all persons who were
+acquainted with the particulars of his effects and treasures, for the
+purpose of transferring those effects to such persons as he (Mr.
+Hastings) chose to nominate.
+
+It was at this crisis of aggravated insult and brutality that the
+indignation which these proceedings had occasioned in the breasts of the
+Rajah's subjects burst out into an open flame. The Rajah had retired to
+the last refuge of the afflicted, to offer up prayers to his God and our
+God, when a vile _chubdar_, or tipstaff, came to interrupt and insult
+him. His alarmed and loyal subjects felt for a beloved sovereign that
+deep interest which we should all feel, if our sovereign were so
+treated. What man with a spark of loyalty in his breast, what man
+regardful of the honor of his country, when he saw his sovereign
+imprisoned, and so notorious a wretch appointed his deputy, could be a
+patient witness of such wrongs? The subjects of this unfortunate prince
+did what we should have done,--what all who love their country, who love
+their liberty, who love their laws, who love their property, who love
+their sovereign, would have done on such an occasion. They looked upon
+him as their sovereign, although degraded. They were unacquainted with
+any authority superior to his, and the phantom of tyranny which
+performed these oppressive acts was unaccompanied by that force which
+justifies submission by affording the plea of necessity. An unseen
+tyrant and four miserable companies of sepoys executed all the horrible
+things that we have mentioned. The spirit of the Rajah's subjects was
+roused by their wrongs, and encouraged by the contemptible weakness of
+their oppressors. The whole country rose up in rebellion, and surely in
+justifiable rebellion. Every writer on the Law of Nations, every man
+that has written, thought, or felt upon the affairs of government, must
+write, know, think, and feel, that a people so cruelly scourged and
+oppressed, both in the person of their chief and in their own persons,
+were justified in their resistance. They were roused to vengeance, and a
+short, but most bloody war followed.
+
+We charge the prisoner at your bar with all the consequences of this
+war. We charge him with the murder of our sepoys, whom he sent unarmed
+to such a dangerous enterprise. We charge him with the blood of every
+man that was shed in that place; and we call him, as we have called him,
+a tyrant, an oppressor, and a murderer. We call him murderer in the
+largest and fullest sense of the word; because he was the cause of the
+murder of our English officers and sepoys, whom he kept unarmed, and
+unacquainted with the danger to which they would be exposed by the
+violence of his transactions. He sacrificed to his own nefarious views
+every one of those lives, as well as the lives of the innocent natives
+of Benares, whom he designedly drove to resistance by the weakness of
+the force opposed to them, after inciting them by tyranny and insult to
+that display of affection towards their sovereign which is the duty of
+all good subjects.
+
+My Lords, these are the iniquities which we have charged upon the
+prisoner at your bar; and I will next call your Lordships' attention to
+the manner in which these iniquities have been pretended to be
+justified. You will perceive a great difference in the manner in which
+this prisoner is tried, and of which he so much complains, and the
+manner in which he dealt with the unfortunate object of his oppression.
+The latter thus openly appeals to his accuser. "You are," says he, "upon
+the spot. It is happy for me that you are so. You can now inquire into
+my conduct." Did Mr. Hastings so inquire? No, my Lords, we have not a
+word of any inquiry; he even found fresh matter of charge in the answer
+of the Rajah, although, if there is any fault in this answer, it is its
+extremely humble and submissive tone. If there was anything faulty in
+his manner, it was his extreme humility and submission. It is plain he
+would have almost submitted to anything. He offered, in fact,
+220,000_l._ to redeem himself from greater suffering. Surely no man
+going into rebellion would offer 220,000_l._ of the treasure which would
+be so essential to his success; nor would any government that was really
+apprehensive of rebellion call upon the suspected person to arm and
+discipline two thousand horse. My Lords, it is evident no such
+apprehensions were entertained; nor was any such charge made until
+punishment had commenced. A vague accusation was then brought forward,
+which was answered by a clear and a natural defence, denying some parts
+of the charge, evading and apologizing for others, and desiring the
+whole to be inquired into. To this request the answer of the
+Governor-General was, "That won't do; you shall have no inquiries." And
+why? "Because I have arbitrary power, you have no rights, and I can and
+will punish you without inquiry." I admit, that, if his will is the law,
+he may take [make?] the charge before punishment or the punishment
+before the charge, or he may punish without making any charge. If his
+will is the law, all I have been saying amounts to nothing. But I have
+endeavored to let your Lordships see that in no country upon the earth
+is the will of a despot law. It may produce wicked, flagitious,
+tyrannical acts; but in no country is it law.
+
+The duty of a sovereign in cases of rebellion, as laid down in the
+Hedaya, agrees with the general practice in India. It was usual, except
+in cases of notorious injustice and oppression, whenever a rebellion or
+a suspicion of a rebellion existed, to admonish the rebellious party and
+persuade him to return to his duty. Causes of complaint were removed
+and misunderstandings explained, and, to save the effusion of blood,
+severe measures were not adopted until they were rendered indispensable.
+This wise and provident law is or ought to be the law in all countries:
+it was in fact the law in that country, but Mr. Hastings did not attend
+to it. His unfortunate victim was goaded to revolt and driven from his
+subjects, although he endeavored by message after message to reconcile
+this cruel tyrant to him. He is told in reply, "You have shed the blood
+of Englishmen, and I will never be reconciled to you." Your Lordships
+will observe that the reason he gives for such an infernal determination
+(for it cannot be justly qualified by any other word) is of a nature to
+make tyranny the very foundation of our government. I do not say here
+upon what occasion people may or may not resist; but surely, if ever
+there was an occasion on which people, from love to their sovereign and
+regard to their country, might take up arms, it was this. They saw a
+tyrant violent in his demands and weak in his power. They saw their
+prince imprisoned and insulted, after he had made every offer of
+submission, and had laid his turban three times in the lap of his
+oppressor. They saw him, instead of availing himself of the means he
+possessed of cutting off his adversary, (for the life of Mr. Hastings
+was entirely in his power,) betaking himself to flight. They then
+thronged round him, took up arms in his defence, and shed the blood of
+some of his insulters. Is this resistance, so excited, so provoked, a
+plea for irreconcilable vengeance?
+
+I must beg pardon for having omitted to lay before your Lordships in its
+proper place a most extraordinary paper, which will show you in what
+manner judicial inquiries are conducted, upon what grounds charges are
+made, by what sort of evidence they are supported, and, in short, to
+what perils the lives and fortunes of men are subjected in that country.
+This paper is in the printed Minutes, page 1608. It was given in
+agreeably to the retrograde order which they have established in their
+judicial proceedings. It was produced to prove the truth of a charge of
+rebellion which was made some months before the paper in evidence was
+known to the accuser.
+
+
+    "_To the Honorable Warren Hastings._
+
+    "Sir,--About the month of November last, I communicated to Mr.
+    Markham the substance of a conversation said to have passed between
+    Rajah Cheyt Sing and Saadut Ali, and which was reported to me by a
+    person in whom I had some confidence. The mode of communicating this
+    intelligence to you I left entirely to Mr. Markham. In this
+    conversation, which was private, the Rajah and Saadut Ali were said
+    to have talked of Hyder Ali's victory over Colonel Baillie's
+    detachment, to have agreed that they ought to seize this opportunity
+    of consulting their own interest, and to have determined to watch
+    the success of Hyder's arms. Some days after this conversation was
+    said to have happened, I was informed by the same person that the
+    Rajah had received a message from one of the Begums at Fyzabad, (I
+    think it was from Sujah ul Dowlah's widow,) advising him not to
+    comply with the demands of government, and encouraging him to expect
+    support in case of his resisting. This also, I believe, I
+    communicated to Mr. Markham; but not being perfectly certain, I now
+    think it my duty to remove the possibility of your remaining
+    unacquainted with a circumstance which may not be unconnected with
+    the present conduct of the Rajah."
+
+Here, then, is evidence of evidence given to Mr. Markham by Mr. Balfour,
+from Lucknow, in the month of November, 1781, long after the transaction
+at Benares. But what was this evidence? "I communicated," he says, "the
+substance of a conversation said to have passed." Observe, _said_: not a
+conversation that had passed to his knowledge or recollection, but what
+his informant said had passed. He adds, this conversation was reported
+to him by a person whom he won't name, but in whom, he says, he had some
+confidence. This anonymous person, in whom he had put some confidence,
+was not himself present at the conversation; he only reports to him that
+it was _said_ by somebody else that such a conversation had taken place.
+This conversation, which somebody told Colonel Balfour he had heard was
+said by somebody to have taken place, if true, related to matters of
+great importance; still the mode of its communication was left to Mr.
+Markham, and that gentleman did not bring it forward till some months
+after. Colonel Balfour proceeds to say,--"Some days after this
+conversation was said to have happened," (your Lordships will observe it
+is always, "was said to have happened,") "I was informed by the same
+person that the Rajah had received a message from one of the Begums at
+Fyzabad, (I think it was from Sujah ul Dowlah's widow,) advising him not
+to comply with the demands of government, and encouraging him to expect
+support in case of his resisting." He next adds,--"This also, I
+believe," (observe, he says he is not quite sure of it,) "I communicated
+to Mr. Markham; but not being perfectly certain," (of a matter the
+immediate knowledge of which, if true, was of the highest importance to
+his country,) "I now think it my duty to remove the possibility of your
+remaining unacquainted with, a circumstance which may not be unconnected
+with the present conduct of the Rajah."
+
+Here is a man that comes with information long after the fact deposed
+to, and, after having left to another the communication of his
+intelligence to the proper authority, that other neglects the matter. No
+letter of Mr. Markham's appears, communicating any such conversation to
+Mr. Hastings: and, indeed, why he did not do so must appear very obvious
+to your Lordships; for a more contemptible, ridiculous, and absurd story
+never was invented. Does Mr. Balfour come forward and tell him who his
+informant was? No. Does he say, "He was an informant whom I dare not
+name, upon account of his great consequence, and the great confidence I
+had in him"? No. He only says slightly, "I have some confidence in him."
+It is upon this evidence of a reporter of what another is _said_ to have
+_said_, that Mr. Hastings and his Council rely for proof, and have
+thought proper to charge the Rajah, with having conceived rebellious
+designs soon after the time when Mr. Hastings had declared his belief
+that no such designs had been formed.
+
+Mr. Hastings has done with his charge of rebellion what he did with his
+declaration of arbitrary power: after he had vomited it up in one place,
+he returns to it in another. He here declares (after he had recorded
+his belief that no rebellion was ever intended) that Mr. Markham was in
+possession of information which he might have believed, if it had been
+communicated to him. Good heavens! when you review all these
+circumstances, and consider the principles upon which this man was tried
+and punished, what must you think of the miserable situation of persons
+of the highest rank in that country, under the government of men who are
+disposed to disgrace and ruin them in this iniquitous manner!
+
+Mr. Balfour is in Europe, I believe. How comes it that he is not
+produced here to tell your Lordships who was his informer, and what he
+knows of the transaction? They have not produced him, but have thought
+fit to rely upon this miserable, beggarly semblance of evidence, the
+very production of which was a crime, when brought forward for the
+purpose of giving color to acts of injustice and oppression. If you ask,
+Who is this Mr. Balfour? He is a person who was a military collector of
+revenue in the province of Rohilcund: a country now ruined and
+desolated, but once the garden of the world. It was from the depth of
+that horrible devastating system that he gave this ridiculous,
+contemptible evidence, which if it can be equalled, I shall admit that
+there is not one word we have said that you ought to attend to.
+
+Your Lordships are now enabled to sum up the amount and estimate the
+result of all this iniquity. The Rajah himself is punished, he is ruined
+and undone; but the 500,000_l._ is not gained. He has fled his country;
+but he carried his treasures with him. His forts are taken possession
+of; but there was nothing found in them. It is the report of the
+country, and is so stated by Mr. Hastings, that he carried away with him
+in gold and silver to the value of about 400,000_l._; and thus that sum
+was totally lost, even as an object of plunder, to the Company. The
+author of the mischief lost his favorite object by his cruelty and
+violence. If Mr. Hastings had listened to Cheyt Sing at first,--if he
+had answered his letters, and dealt civilly with him,--if he had
+endeavored afterwards to compromise matters,--if he had _told_ him what
+his demands were,--if, even after the rebellion had broken out, he had
+demanded and exacted a fine,--the Company would have gained 220,000_l._
+at least, and perhaps a much larger sum, without difficulty. They would
+not then have had 400,000_l._ carried out of the country by a tributary
+chief, to become, as we know that sum has become, the plunder of the
+Mahrattas and our other enemies. I state to you the account of the
+profit and loss of tyranny: take it as an account of profit and loss;
+forget the morality, forget the law, forget the policy; take it, I say,
+as a matter of profit and loss. Mr. Hastings lost the subsidy; Mr.
+Hastings lost the 220,000_l._ which was offered him, and more that he
+might have got. Mr. Hastings lost it all; and the Company lost the
+400,000_l._ which he meant to exact. It was carried from the British
+dominions to enrich its enemies forever.
+
+This man, my Lords, has not only acted thus vindictively himself, but he
+has avowed the principle of revenge as a general rule of policy,
+connected with the security of the British government in India. He has
+dared to declare, that, if a native once draws his sword, he is not to
+be pardoned; that you never are to forgive any man who has killed an
+English soldier. You are to be implacable and resentful; and there is
+no maxim of tyrants, which, upon account of the supposed weakness of
+your government, you are not to pursue. Was this the conduct of the
+Mogul conquerors of India? and must this _necessarily_ be the policy of
+their Christian successors? I pledge myself, if called upon, to prove
+the contrary. I pledge myself to produce, in the history of the Mogul
+empire, a series of pardons and amnesties for rebellions, from its
+earliest establishments, and in its most distant provinces.
+
+I need not state to your Lordships what you know to be the true
+principles of British policy in matters of this nature. When there has
+been provocation, you ought to be ready to listen to terms of
+reconciliation, even after war has been made. This you ought to do, to
+show that you are placable; such policy as this would doubtless be of
+the greatest benefit and advantage to you. Look to the case of Sujah
+Dowlah. You had, in the course of a war with him, driven him from his
+country; you had not left him in possession of a foot of earth in the
+world. The Mogul was his sovereign, and, by his authority, it was in
+your power to dispose of the vizierate, and of every office of state
+which Sujah Dowlah held under the emperor: for he hated him mortally,
+and was desirous of dispossessing him of everything. What did you do?
+Though he had shed much English blood, you reestablished him in all his
+power, you gave him more than he before possessed; and you had no reason
+to repent your generosity. Your magnanimity and justice proved to be the
+best policy, and was the subject of admiration from one end of India to
+the other. But Mr. Hastings had other maxims and other principles. You
+are weak, he says, and therefore you ought never to forgive. Indeed, Mr.
+Hastings never does forgive. The Rajah was weak, and he persecuted him;
+Mr. Hastings was weak, and he lost his prey. He went up the country with
+the rapacity, but not with the talons and beak, of a vulture. He went to
+look for plunder; but he was himself plundered, the country was ravaged,
+and the prey escaped.
+
+After the escape of Cheyt Sing, there still existed in one corner of the
+country some further food for Mr. Hastings's rapacity. There was a place
+called Bidjegur, one of those forts which Mr. Hastings declared could
+not be safely left in the possession of the Rajah; measures were
+therefore taken to obtain possession of this place, soon after the
+flight of its unfortunate proprietor. And what did he find in it? A
+great and powerful garrison? No, my Lords: he found in it the wives and
+family of the Rajah; he found it inhabited by two hundred women, and
+defended by a garrison of eunuchs and a few feeble militia-men. This
+fortress was supposed by him to contain some money, which he hoped to
+lay hold of when all other means of rapacity had escaped him. He first
+sends (and you have it on your minutes) a most cruel, most atrocious,
+and most insulting message to these unfortunate women; one of whom, a
+principal personage of the family, we find him in the subsequent
+negotiation scandalizing in one minute, and declaring to be a woman of
+respectable character in the next,--treating her by turns as a
+prostitute and as an amiable woman, as best suited the purposes of the
+hour. This woman, with two hundred of her sex, he found in Bidjegur.
+Whatever money they had was their own property; and as such Cheyt Sing,
+who had visited the place before his flight, had left it for their
+support, thinking that it would be secure to them as their property,
+because they were persons wholly void of guilt, as they must needs have
+been. This money the Rajah might have carried off with him; but he left
+it them, and we must presume that it was their property; and no attempt
+was ever made by Mr. Hastings to prove otherwise. They had no other
+property that could be found. It was the only means of subsistence for
+themselves, their children, their domestics, and dependants, and for the
+whole female part of that once illustrious and next to royal family.
+
+But to proceed. A detachment of soldiers was sent to seize the forts
+[fort?]. Soldiers are habitually men of some generosity; even when they
+are acting in a bad cause, they do not wholly lose the military spirit.
+But Mr. Hastings, fearing that they might not be animated with the same
+lust of plunder as himself, stimulated them to demand the plunder of the
+place, and expresses his hopes that no composition would be made with
+these women, and that not one shilling of the booty would be allowed
+them. He does not trust to their acting as soldiers who have their
+fortunes to make; but he stimulates and urges them not to give way to
+the generous passions and feelings of men.
+
+He thus writes from Benares, the 22d of October, 1781, ten o'clock in
+the morning. "I am this instant favored with yours of yesterday; mine to
+you of the same date has before this time acquainted you with my
+resolutions and sentiments respecting the Ranny. I think every demand
+she has made to you, except that of safety and respect for her person,
+is unreasonable. If the reports brought to me are true, your rejecting
+her offers, or any negotiation with her, would soon obtain you
+possession of the fort upon your own terms. I apprehend that she will
+contrive to defraud the captors of a considerable part of the booty by
+being suffered to retire without examination; but this is your
+consideration, and not mine. I should be sorry that your officers and
+soldiers lost any part of the reward to which they are so well entitled;
+but I cannot make any objection, as you must be the best judge of the
+expediency of the promised indulgence to the Ranny. What you have
+engaged for I will certainly ratify; but as to permitting the Ranny to
+hold the purgunnah of Hurluk, or any other in the zemindary, without
+being subject to the authority of the zemindar, or any lands whatever,
+or indeed making any conditions with her for a provision, I will never
+consent to it."
+
+My Lords, you have seen the principles upon which this man justifies his
+conduct. Here his real nature, character, and disposition break out.
+These women had been guilty of no rebellion; he never charged them with
+any crime but that of having wealth; and yet you see with what ferocity
+he pursues everything that belonged to the destined object of his cruel,
+inhuman, and more than tragic revenge. "If," says he, "you have made an
+agreement with them, and will insist upon it, I will keep it; but if you
+have not, I beseech you not to make any. Don't give them anything;
+suffer no stipulations whatever of a provision for them. The
+capitulation I will ratify, provided it contains no article of future
+provision for them." This he positively forbade; so that his
+bloodthirsty vengeance would have sent out these two hundred innocent
+women to starve naked in the world.
+
+But he not only declares that the money found in the fort is the
+soldiers', he adds, that he should be sorry, if they lost a shilling of
+it. So that you have here a man not only declaring that the money was
+theirs, directly contrary to the Company's positive orders upon other
+similar occasions, and after he had himself declared that prize-money
+was poison to soldiers, but directly inciting them to insist upon their
+right to it.
+
+A month had been allowed by proclamation for the submission of all
+persons who had been in rebellion, which submission was to entitle them
+to indemnity. But, my Lords, he endeavored to break the public faith
+with these women, by inciting the soldiers to make no capitulation with
+them, and thus depriving them of the benefit of the proclamation, by
+preventing their voluntary surrender.
+
+     [_Mr. Burke here read the proclamation._]
+
+From the date of this proclamation it appears that the surrender of the
+fort was clearly within the time given to those who had been guilty of
+the most atrocious acts of rebellion to repair to their homes and enjoy
+an indemnity. These women had never quitted their homes, nor had they
+been charged with rebellion, and yet they were cruelly excluded from the
+general indemnity; and after the army had taken unconditional possession
+of the fort, they were turned out of it, and ordered to the quarters of
+the commanding officer, Major Popham. This officer had received from Mr.
+Hastings a power to rob them, a power to plunder them, a power to
+distribute the plunder, but no power to give them any allowance, nor any
+authority even to receive them.
+
+In this disgraceful affair the soldiers showed a generosity which Mr.
+Hastings neither showed nor would have suffered, if he could have
+prevented it. They agreed amongst themselves to give to these women
+three lacs of rupees, and some trifle more; and the rest was divided as
+a prey among the army. The sum found in the fort was about 238,000_l._,
+not the smallest part of which was in any way proved to be Cheyt Sing's
+property, or the property of any person but the unfortunate women who
+were found in the possession of it.
+
+The plunder of the fort being thus given to the soldiers, what does Mr.
+Hastings next do? He is astonished and stupefied to find so much
+unprofitable violence, so much tyranny, and so little pecuniary
+advantage,--so much bloodshed, without any profit to the Company. He
+therefore breaks his faith with the soldiers; declares, that, having no
+right to the money, they must refund it to the Company; and on their
+refusal, he instituted a suit against them. With respect to the three
+lacs of rupees, or 30,000_l._, which was to be given to these women,
+have we a scrap of paper to prove its payment? is there a single receipt
+or voucher to verify their having received one sixpence of it? I am
+rather inclined to think that they did receive it, or some part of it;
+but I don't know a greater crime in public officers than to have no kind
+of vouchers for the disposal of any large sums of money which pass
+through their hands: but this, my Lords, is the great vice of Mr.
+Hastings's government.
+
+I have briefly taken notice of the claim which Mr. Hastings thought
+proper to make, on the part of the Company, to the treasure found in the
+fort of Bidjegur, after he had instigated the army to claim it as the
+right of the captors. Your Lordships will not be at a loss to account
+for this strange and barefaced inconsistency. This excellent Governor
+foresaw that he would have a bad account of this business to give to the
+contractors in Leadenhall Street, who consider laws, religion, morality,
+and the principles of state policy of empires as mere questions of
+profit and loss. Finding that he had dismal accounts to give of great
+sums expended without any returns, he had recourse to the only expedient
+that was left him. He had broken his faith with the ladies in the fort,
+by not suffering his officers to grant them that indemnity which his
+proclamation offered. Then, finding that the soldiers had taken him at
+his word, and appropriated the treasure to their own use, he next broke
+his faith with them. A constant breach of faith is a maxim with him. He
+claims the treasure for the Company, and institutes a suit before Sir
+Elijah Impey, who gives the money to the Company, and not to the
+soldiers. The soldiers appeal; and since the beginning of this trial, I
+believe even very lately, it has been decided by the Council that the
+letter of Mr. Hastings was not, as Sir Elijah Impey pretended, a mere
+private letter, because it had "Dear Sir," in it, but a public order,
+authorizing the soldiers to divide the money among themselves.
+
+Thus 200,000_l._ was distributed among the soldiers; 400,000_l._ was
+taken away by Cheyt Sing, to be pillaged by all the Company's enemies
+through whose countries he passed; and so ended one of the great
+sources from which this great financier intended to supply the
+exigencies of the Company, and recruit their exhausted finances.
+
+By this proceeding, my Lords, the national honor is disgraced, all the
+rules of justice are violated, and every sanction, human and divine,
+trampled upon. We have, on one side, a country ruined, a noble family
+destroyed, a rebellion raised by outrage and quelled by bloodshed, the
+national faith pledged to indemnity, and that indemnity faithlessly
+withheld from helpless, defenceless women; while the other side of the
+picture is equally unfavorable. The East India Company have had their
+treasure wasted, their credit weakened, their honor polluted, and their
+troops employed against their own subjects, when their services were
+required against foreign enemies.
+
+My Lords, it only remains for me, at this time, to make a few
+observations upon some proceedings of the prisoner respecting the
+revenue of Benares. I must first state to your Lordships that in the
+year 1780 he made a demand upon that country, which, by his own account,
+if it had been complied with, would only have left 23,000_l._ a year for
+the maintenance of the Rajah and his family. I wish to have this account
+read, for the purpose of verifying the observations which I shall have
+to make to your Lordships.
+
+     [_Here the account was read._]
+
+I must now observe to your Lordships, that Mr. Markham and Mr. Hastings
+have stated the Rajah's net revenue at forty-six lacs: but the accounts
+before you state it at forty lacs only. Mr. Hastings had himself
+declared that he did not think the country could safely yield more, and
+that any attempt to extract more would be ruinous.
+
+Your Lordships will observe that the first of these estimates is
+unaccompanied with any document whatever, and that it is contradicted by
+the papers of receipt and the articles of account, from all of which it
+appears that the country never yielded more than forty lacs during the
+time that Mr. Hastings had it in his possession; and you may be sure he
+squeezed as much out of it as he could. He had his own Residents,--first
+Mr. Markham, then Mr. Fowke, then Mr. Grant; they all went up with a
+design to make the most of it. They endeavored to do so; but they never
+could screw it up to more than forty lacs by all the violent means which
+they employed. The ordinary subsidy, as paid at Calcutta by the Rajah,
+amounted to twenty-two lacs; and it is therefore clearly proved by this
+paper, that Mr. Hastings's demand of fifty lacs (500,000_l._), joined to
+the subsidies, was more than the whole revenue which the country could
+yield. What hoarded treasure the Rajah possessed, and which Mr. Hastings
+says he carried off with him, does not appear. That it was any
+considerable sum is more than Mr. Hastings knows, more than can be
+proved, more than is probable. He had not, in his precipitate flight,
+any means, I think, of carrying away a great sum. It further appears
+from these accounts, that, after the payment of the subsidy, there would
+only have been left 18,000_l._ a year for the support of the Rajah's
+family and establishments.
+
+Your Lordships have now a standard, not a visionary one, but a standard
+verified by accurate calculation and authentic accounts. You may now
+fairly estimate the avarice and rapacity of this man, who describes
+countries to be enormously rich in order that he may be justified in
+pillaging them. But however insatiable the prisoner's avarice may be, he
+has other objects in view, other passions rankling in his heart, besides
+the lust of money. He was not ignorant, and we have proved it by his own
+confession, that his pretended expectation of benefit to the Company
+could not be realized; but he well knew that by enforcing his demands he
+should utterly and effectually ruin a man whom he mortally hated and
+abhorred,--a man who could not, by any sacrifices offered to the
+avarice, avert the cruelty of his implacable enemy. As long as truth
+remains, as long as figures stand, as long as two and two are four, as
+long as there is mathematical and arithmetical demonstration, so long
+shall his cruelty, rage, ravage, and oppression remain evident to an
+astonished posterity.
+
+I shall undertake, my Lords, when this court meets again, to develop the
+consequences of this wicked proceeding. I shall then show you that that
+part of the Rajah's family which he left behind him, and which Mr.
+Hastings pretended to take under his protection, was also ruined,
+undone, and destroyed; and that the once beautiful country of Benares,
+which he has had the impudence to represent as being still in a
+prosperous condition, was left by him in such a state as would move pity
+in any tyrant in the world except the one who now stands before you.
+
+FOOTNOTES:
+
+[98] Hedaya, Vol. II. p. 621.
+
+
+
+
+SPEECH
+
+IN
+
+GENERAL REPLY.
+
+THIRD DAY: TUESDAY, JUNE 3, 1794.
+
+
+My Lords,--We are called, with an awful voice, to come forth and make
+good our charge against the prisoner at your bar; but as a long time has
+elapsed since your Lordships heard that charge, I shall take the liberty
+of requesting my worthy fellow Manager near me to read that part to your
+Lordships which I am just now going to observe upon, that you may be the
+better able to apply my observations to the letter of the charge.
+
+     [_Mr. Wyndham reads._]
+
+"That the said Warren Hastings, having, as aforesaid, expelled the said
+Cheyt Sing from his dominions, did, of his own usurped authority, and
+without any communication with or any approbation given by the other
+members of the Council, nominate and appoint Rajah Mehip Narrain to the
+government of the provinces of Benares, and did appoint his father,
+Durbege Sing, as administrator of his authority, and did give to the
+British Resident, William Markham, a controlling authority over both;
+and did farther abrogate and set aside all treaties and agreements which
+subsisted between the state of Benares and the British nation; and did
+arbitrarily and tyrannically, of his mere authority, raise the tribute
+to the sum of four hundred thousand pounds sterling, or thereabouts; did
+further wantonly and illegally impose certain oppressive duties upon
+goods and merchandise, to the great injury of trade and ruin of the
+provinces; and did farther dispose of, as his own, the property within
+the said provinces, by granting the same, or parts, thereof, in pensions
+to such persons as he thought fit.
+
+"That the said Warren Hastings did, some time in the year 1782, enter
+into a clandestine correspondence with William Markham, Esquire, the
+then Resident at Benares, which said Markham had been by him, the said
+Warren Hastings, obtruded into the said office, contrary to the positive
+orders of the Court of Directors; and, in consequence of the
+representations of the said Markham, did, under pretence that the new
+excessive rent or tribute was in arrear, and that the affairs of the
+provinces were likely to fall into confusion, authorize and impower him,
+by his own private authority, to remove the said Durbege Sing from his
+office and deprive him of his estate.
+
+"That the said Durbege Sing was, by the private orders and authorities
+given by the said Warren Hastings, and in consequence of the
+representations aforesaid, violently thrown into prison, and cruelly
+confined therein, under pretence of the non-payment of the arrears of
+the tribute aforesaid.
+
+"That the widow of Bulwant Sing, and the Rajah Mehip Narrain, did
+pointedly accuse the said Markham of being the sole cause of any delay
+in the payment of the tribute aforesaid, and did offer to prove the
+innocence of the said Durbege Sing, and also to prove that the faults
+ascribed to him were solely the faults of the said Markham; yet the said
+Warren Hastings did pay no regard whatever to the said representations,
+nor make any inquiry into the truth of the same, but did accuse the said
+widow of Bulwant Sing and the Rajah aforesaid of gross presumption for
+the same; and, listening to the representations of the person accused,
+(viz., the Resident Markham,) did continue to confine the said Durbege
+Sing in prison, and did invest the Resident Markham with authority to
+bestow his office upon whomsoever he pleased.
+
+"That the said Markham did bestow the said office of administrator of
+the provinces of Benares upon a certain person named Jagher Deo Seo,
+who, in order to gratify the arbitrary demands of the said Warren
+Hastings, was obliged greatly to distress and harass the unfortunate
+inhabitants of the said provinces.
+
+"That the said Warren Hastings did, some time in the year 1784, remove
+the said Jagher Deo Seo from the said office, under pretence of certain
+irregularities and oppressions; which irregularities and oppressions are
+solely imputable to him, the said Warren Hastings.
+
+"That the consequences of all these violent changes and arbitrary acts
+were the total ruin and desolation of the country, and the flight of the
+inhabitants: the said Warren Hastings having found every place abandoned
+at his approach, even by the officers of the very government which he
+established, and seeing nothing but traces of devastation in every
+village, the provinces in effect without a government, the
+administration misconducted, the people oppressed, trade discouraged,
+and the revenue in danger of a rapid decline.
+
+"All which destruction, devastation, oppression, and ruin are solely
+imputable to the abovementioned and other arbitrary, illegal, unjust,
+and tyrannical acts of him, the said Warren Hastings, who, by all and
+every one of the same, was and is guilty of high crimes and
+misdemeanors."
+
+     [_Mr. Burke proceeded._]
+
+My Lords, you have heard the charge; and you are now going to see the
+prisoner at your bar in a new point of view. I will now endeavor to
+display him in his character of a legislator in a foreign land, not
+augmenting the territory, honor, and power of Great Britain, and
+bringing the acquisition under the dominion of law and liberty, but
+desolating a flourishing country, that to all intents and purposes was
+our own,--a country which we had conquered from freedom, from
+tranquillity, order, and prosperity, and submitted, through him, to
+arbitrary power, misrule, anarchy, and ruin. We now see the object of
+his corrupt vengeance utterly destroyed, his family driven from their
+home, his people butchered, his wife and all the females of his family
+robbed and dishonored in their persons, and the effects which husband
+and parents had laid up in store for the subsistence of their families,
+all the savings of provident economy, distributed amongst a rapacious
+soldiery. His malice is victorious. He has well avenged, in the
+destruction of this unfortunate family, the Rajah's intended visit to
+General Clavering; he has well avenged the suspected discovery of his
+bribe to Mr. Francis.
+
+    "Thou hast it now, King, Cawdor, Glamis, all!"
+
+Let us see, my Lords, what use he makes of this power,--how he justifies
+the bounty of Fortune, bestowing on him this strange and anomalous
+conquest. Anomalous I call it, my Lords, because it was the result of no
+plan in the cabinet, no operation in the field. No act or direction
+proceeded from him, the responsible chief, except the merciless orders,
+and the grant to the soldiery. He lay skulking and trembling in the fort
+of Chunar, while the British soldiery entitled themselves to the plunder
+which he held out to them. Nevertheless, my Lords, he conquers; the
+country is his own; he treats it as his own. Let us, therefore, see how
+this successor of Tamerlane, this emulator of Genghis Khan, governs a
+country conquered by the talents and courage of others, without
+assistance, guide, direction, or counsel given by himself.
+
+My Lords, I will introduce his first act to your Lordships' notice in
+the words of the charge.
+
+"The said Warren Hastings did, some time in the year 1782, enter into a
+clandestine correspondence with William Markham, Esquire, the then
+Resident at Benares; which said Markham had been by him, the said Warren
+Hastings, obtruded into the said office, contrary to the positive orders
+of the Court of Directors."
+
+This unjustifiable obtrusion, this illegal appointment, shows you at the
+very outset that he defies the laws of his country,--most positively and
+pointedly defies them. In attempting to give a reason for this defiance,
+he has chosen to tell a branch of the legislature from which originated
+the act which wisely and prudently ordered him to pay implicit obedience
+to the Court of Directors, that he removed Mr. Fowke from Benares,
+contrary to the orders of the Court, on political grounds; because, says
+he, "I thought it necessary the Resident there should be a man of my own
+nomination and confidence. I avow the principle, and think no government
+can subsist without it. The punishment of the Rajah made no part of my
+design in Mr. Fowke's removal or Mr. Markham's appointment, nor was his
+punishment an object of my contemplation at the time I removed Mr. Fowke
+to appoint Mr. Markham: an appointment of my own choice, and a signal to
+notify the restoration of my own authority; as I had before removed Mr.
+Fowke and appointed Mr. Graham for the same purpose."
+
+Here, my Lords, he does not even pretend that he had any view whatever,
+in this appointment of Mr. Markham, but to defy the laws of his country.
+"I must," says he, "have a man of my own nomination, because it is a
+signal to notify the restoration of my own authority, as I had before
+removed Mr. Fowke for the same purpose."
+
+I must beg your Lordships to keep in mind that the greater part of the
+observations with which I shall trouble you have a reference to the
+_principles_ upon which this man acts; and I beseech you to remember
+always that you have before you a question and an issue of law; I
+beseech you to consider what it is that you are disposing of,--that you
+are not merely disposing of this man and his cause, but that you are
+disposing of the laws of your country.
+
+You, my Lords, have made, and we have made, an act of Parliament in
+which the Council at Calcutta is vested with a special power, distinctly
+limited and defined. He says, "My authority is absolute. I defy the
+orders of the Court of Directors, because it is necessary for me to show
+that I can disregard them, as a signal of my own authority." He supposes
+his authority gone while he obeys the laws; but, says he, "the moment I
+got rid of the bonds and barriers of the laws," (as if there had been
+some act of violence and usurpation that had deprived him of his
+rightful powers,) "I was restored to my own authority." What is this
+authority to which he is restored? Not an authority vested in him by the
+East India Company; not an authority sanctioned by the laws of this
+kingdom. It is neither of these, but the authority of Warren Hastings;
+an inherent divine right, I suppose, which he has thought proper to
+claim as belonging to himself; something independent of the laws,
+something independent of the Court of Directors, something independent
+of his brethren of the Council. It is "my own authority."
+
+And what is the signal by which you are to know when this authority is
+restored? By his obedience to the Court of Directors?--by his attention
+to the laws of his country?--by his regard to the rights of the people?
+No, my Lords, no: the notification of the restoration of this authority
+is a formal disobedience of the orders of the Court of Directors. When
+you find the laws of the land trampled upon, and their appointed
+authority despised, then you may be sure that the authority of the
+prisoner is reestablished.
+
+There is, my Lords, always a close connection between vices of every
+description. The man who is a tyrant would, under some other
+circumstances, be a rebel; and he that is a rebel would become a tyrant.
+They are things which originally proceed from the same source. They owe
+their birth to the wild, unbridled lewdness of arbitrary power. They
+arise from a contempt of public order, and of the laws and institutions
+which curb mankind. They arise from a harsh, cruel, and ferocious
+disposition, impatient of the rules of law, order, and morality: and
+accordingly, as their relation varies, the man is a tyrant, if a
+superior, a rebel, if an inferior. But this man, standing in a middle
+point between the two relations, the superior and inferior, declares
+himself at once both a rebel and a tyrant. We therefore naturally
+expect, that, when he has thrown off the laws of his country, he will
+throw off all other authority. Accordingly, in defiance of that
+authority to which he owes his situation, he nominates Mr. Markham to
+the Residency at Benares, and therefore every act of Mr. Markham is his.
+He is responsible,--doubly responsible to what he would have been, if in
+the ordinary course of office he had named this agent. Every governor is
+responsible for the misdemeanors committed under his legal authority for
+which he does not punish the delinquent; but the prisoner is doubly
+responsible in this case, because he assumed an illegal authority, which
+can be justified only, if at all, by the good resulting from the
+assumption.
+
+Having now chosen his principal instrument and his confidential and sole
+counsellor, having the country entirely in his hand, and every obstacle
+that could impede his course swept out of the arena, what does he do
+under these auspicious circumstances? You would imagine, that, in the
+first place, he would have sent down to the Council at Calcutta a
+general view of his proceedings, and of their consequences, together
+with a complete statement of the revenue; that he would have recommended
+the fittest persons for public trusts, with such other measures as he
+might judge to be most essential to the interest and honor of his
+employers. One would have imagined he would have done this, in order
+that the Council and the Court of Directors might have a clear view of
+the whole existing system, before he attempted to make a permanent
+arrangement for the administration of the country. But, on the contrary,
+the whole of his proceedings is clandestinely conducted; there is not
+the slightest communication with the Council upon the business, till he
+had determined and settled the whole. Thus the Council was placed in a
+complete dilemma,--either to confirm all his wicked and arbitrary acts,
+(for such we have proved them to be,) or to derange the whole
+administration of the country again, and to make another revolution as
+complete and dreadful as that which he had made.
+
+The task which the Governor-General had imposed upon himself was, I
+admit, a difficult one; but those who pull down important ancient
+establishments, who wantonly destroy modes of administration and public
+institutions under which a country has prospered, are the most
+mischievous, and therefore the wickedest of men. It is not a reverse of
+fortune, it is not the fall of an individual, that we are here talking
+of. We are, indeed, sorry for Cheyt Sing and Durbege Sing, as we should
+be sorry for any individual under similar circumstances.
+
+It is wisely provided in the constitution of our heart, that we should
+interest ourselves in the fate of great personages. They are therefore
+made everywhere the objects of tragedy, which addresses itself directly
+to our passions and our feelings. And why? Because men of great place,
+men of great rank, men of great hereditary authority, cannot fall
+without a horrible crash upon all about them. Such towers cannot tumble
+without ruining their dependent cottages.
+
+The prosperity of a country, that has been distressed by a revolution
+which has swept off its principal men, cannot be reestablished without
+extreme difficulty. This man, therefore, who wantonly and wickedly
+destroyed the existing government of Benares, was doubly bound to use
+all possible care and caution in supplying the loss of those
+institutions which he had destroyed, and of the men whom he had driven
+into exile. This, I say, he ought to have done. Let us now see what he
+really did do.
+
+He set out by disposing of all the property of the country as if it was
+his own. He first confiscated the whole estates of the _Baboos_, the
+great nobility of the country, to the amount of six lacs of rupees. He
+then distributed the lands and revenue of the country according to his
+own pleasure; and as he had seized the lands without our knowing why or
+wherefore, so the portion which he took away from some persons he gave
+to others, in the same arbitrary manner, and without any assignable
+reason.
+
+When we were inquiring what jaghires Mr. Hastings had thought proper to
+grant, we found, to our astonishment, (though it is natural that his
+mind should take this turn,) that he endowed several charities with
+jaghires. He gave a jaghire to some Brahmins to pray for the perpetual
+prosperity of the Company, and others to procure the prayers of the same
+class of men for himself. I do not blame his Gentoo piety, when I find
+no Christian piety in the man: let him take refuge in any superstition
+he pleases. The crime we charge is his having distributed the lands of
+others at his own pleasure. Whether this proceeded from piety, from
+ostentation, or from any other motive, it matters not. We contend that
+he ought not to have distributed such land at all,--that he had no
+right to do so; and consequently, the gift of a single acre of land, by
+his own private will, was an act of robbery, either from the public or
+some individual.
+
+When he had thus disturbed the landed property of Benares, and
+distributed it according to his own will, he thought it would be proper
+to fix upon a person to govern the country; and of this person he
+himself made the choice. It does not appear that the people could have
+lost, even by the revolt of Cheyt Sing, the right which was inherent in
+them to be governed by the lawful successor of his family. We find,
+however, that this man, by his own authority, by the arbitrary exercise
+of his own will and fancy, did think proper to nominate a person to
+succeed the Rajah who had no legal claims to the succession. He made
+choice of a boy about nineteen years old; and he says he made that
+choice upon the principle of this boy's being descended from Bulwant
+Sing by the female line. But he does not pretend to say that he was the
+proper and natural heir to Cheyt Sing; and we will show you the direct
+contrary. Indeed, he confesses the contrary himself; for he argues, in
+his defence, that, when a new system was to be formed with the successor
+of Cheyt Sing who was not his heir, such successor had no claim of
+right.
+
+But perhaps the want of right was supplied by the capacity and fitness
+of the person who was chosen. I do not say that this does or can for one
+moment supersede the positive right of another person; but it would
+palliate the injustice in some degree. Was there in this case any
+palliative matter? Who was the person chosen by Mr. Hastings to succeed
+Cheyt Sing? My Lords, the person chosen was a minor: for we find the
+prisoner at your bar immediately proceeded to appoint him a guardian.
+This guardian he also chose by his own will and pleasure, as he himself
+declares, without referring to any particular claim or usage,--without
+calling the Pundits to instruct him, upon whom, by the Gentoo laws, the
+guardianship devolved.
+
+I admit, that, in selecting a guardian, he did not, in one respect, act
+improperly; for he chose the boy's father, and he could not have chosen
+a better guardian for his person. But for the administration of his
+government qualities were required which this man did not possess. He
+should have chosen a man of vigor, capacity, and diligence, a man fit to
+meet the great difficulties of the situation in which he was to be
+placed.
+
+Mr. Hastings, my Lords, plainly tells you that he did not think the
+man's talents to be extraordinary, and he soon afterwards says that he
+had a great many incapacities. He tells you that he has a doubt whether
+he was capable of realizing those hopes of revenue which he (Mr.
+Hastings) had formed. Nor can this be matter of wonder, when we consider
+that he had ruined and destroyed the ancient system, the whole scheme
+and tenor of public offices, and had substituted nothing for them but
+his own arbitrary will. He had formed a plan of an entire new system, in
+which the practical details had no reference to the experience and
+wisdom of past ages. He did not take the government as he found it; he
+did not take the system of offices as it was arranged to his hand; but
+he dared to make the wicked and flagitious experiment which I have
+stated,--an experiment upon the happiness of a numerous people, whose
+property he had usurped and distributed in the manner which has been
+laid before your Lordships. The attempt failed, and he is responsible
+for the consequences.
+
+How dared he to make these experiments? In what manner can he be
+justified for playing fast and loose with the dearest interests, and
+perhaps with the very existence, of a nation? Attend to the manner in
+which he justifies himself, and you will find the whole secret let out.
+"The easy accumulation of too much wealth," he says, "had been Cheyt
+Sing's ruin; it had buoyed him up with extravagant and ill-founded
+notions of independence, which I very much wished to discourage in the
+future Rajah. Some part, therefore, of the superabundant produce in the
+country I turned into the coffers of the sovereign by an augmentation of
+the tribute."--Who authorized him to make any augmentation of the
+tribute? But above all, who authorized him to augment it upon this
+principle?--"I must take care the tributary prince does not grow too
+rich; if he gets rich, he will get proud."--This prisoner has got a
+scale like that in the almanac,--"War begets poverty, poverty peace,"
+and so on. The first rule that he lays down is, that he will keep the
+new Rajah in a state of poverty; because, if he grows rich, he will
+become proud, and behave as Cheyt Sing did. You see the ground,
+foundation, and spirit of the whole proceeding. Cheyt Sing was to be
+robbed. Why? Because he is too rich. His successor is to be reduced to a
+miserable condition. Why? Lest he should grow rich and become
+troublesome. The whole of his system is to prevent men from growing
+rich, lest, if they should grow rich, they should grow proud, and seek
+independence. Your Lordships see that in this man's opinion riches must
+beget pride. I hope your Lordships will never be so poor as to cease to
+be proud; for, ceasing to be proud, you will cease to be independent.
+
+Having resolved that the Rajah should not grow rich, for fear he should
+grow proud and independent, he orders him to pay forty lacs of rupees,
+or 400,000_l._, annually to the Company. The tribute had before been
+250,000_l._, and he all at once raised it to 400,000_l._ Did he
+previously inform the Council of these intentions? Did he inform them of
+the amount of the gross collections of the country, from any properly
+authenticated accounts procured from any public office?
+
+I need not inform your Lordships, that it is a serious thing to draw out
+of a country, instead of 250,000_l._, an annual tribute of 400,000_l._
+There were other persons besides the Rajah concerned in this enormous
+increase of revenue. The whole country is interested in its resources
+being fairly estimated and assessed; for, if you overrate the revenue
+which it is supposed to yield to the great general collector, you
+necessitate him to overrate every under-collector, and thereby instigate
+them to harass and oppress the people. It is upon these grounds that we
+have charged the prisoner at your bar with having acted arbitrarily,
+illegally, unjustly, and tyrannically: and your Lordships will bear in
+mind that these acts were done by his sole authority, which authority we
+have shown to have been illegally assumed.
+
+My Lords, before he took the important steps which I have just stated,
+he consulted no one but Mr. Markham, whom he placed over the new Rajah.
+The Rajah was only nineteen years old: but Mr. Markham undoubtedly had
+the advantage of him in this respect, for he was twenty-one. He had also
+the benefit of five months' experience of the country: an abundant
+experience, to be sure, my Lords, in a country where it is well known,
+from the peculiar character of its inhabitants, that a man cannot
+anywhere put his foot without placing it upon some trap or mine, until
+he is perfectly acquainted with its localities. Nevertheless, he puts
+the whole country and a prince of nineteen, as appears from the
+evidence, into the hands of Mr. Markham, a man of twenty-one. We have no
+doubt of Mr. Markham's capacity; but he could have no experience in a
+country over which he possessed a general controlling power. Under these
+circumstances, we surely shall not wonder, if this young man fell into
+error. I do not like to treat harshly the errors into which a very young
+person may fall: but the man who employs him, and puts him into a
+situation for which he has neither capacity nor experience, is
+responsible for the consequences of such an appointment; and Mr.
+Hastings is doubly responsible in this case, because he placed Mr.
+Markham as Resident merely to show that he defied the authority of the
+Court of Directors.
+
+But, my Lords, let us proceed. We find Mr. Hastings resolved to exact
+forty lacs from the country, although he had no proof that such a
+tribute could be fairly collected. He next assigns to this boy, the
+Rajah, emoluments amounting to about 60,000_l._ a year. Let us now see
+upon what grounds he can justify the assignment of these emoluments. I
+can perceive none but such as are founded upon the opinion of its being
+necessary to the support of the Rajah's dignity. Now, when Mr. Markham,
+who is the sole ostensible actor in the management of the new Rajah, as
+he had been a witness to the deposition of the former, comes before you
+to give an account of what he thought of Cheyt Sing, who appears to have
+properly supported the dignity of his situation, he tells you that about
+a lac or a lac and a half (10,000_l._ or 15,000_l._) a year was as much
+as Cheyt Sing could spend. And yet this young creature, settled in the
+same country, and who was to pay 400,000_l._ a year, instead of
+250,000_l._, tribute to the Company, was authorized by Mr. Hastings to
+collect and reserve to his own use 60,000_l._ out of the revenue. That
+is to say, he was to receive four times as much as was stated by Mr.
+Hastings, on Mr. Markham's evidence, to have been necessary to support
+him.
+
+Your Lordships tread upon corruption everywhere. Why was such a large
+revenue given to the young Rajah to support his dignity, when, as they
+say, Cheyt Sing did not spend above a lac and half in support of
+his,--though it is known he had great establishments to maintain, that
+he had erected considerable buildings adorned with fine gardens, and,
+according to them, had made great preparations for war?
+
+We must at length imagine that they knew the country could bear the
+impost imposed upon it. I ask, How did they know this? We have proved to
+you, by a paper presented here by Mr. Markham, that the net amount of
+the collections was about 360,000_l._ This is their own account, and was
+made up, as Mr. Markham says, by one of the clerks of Durbege Sing,
+together with his Persian moonshee, (a very fine council to settle the
+revenues of the kingdom!) in his private house. And with this account
+before them, they have dared to impose upon the necks of that unhappy
+people a tribute of 400,000_l._, together with an income for the Rajah
+of 60,000_l._ These sums the Naib, Durbege Sing, was bound to furnish,
+and left to get them as he could. Your Lordships will observe that I
+speak of the net proceeds of the collections. We have nothing to do with
+the gross amount. We are speaking of what came to the public treasury,
+which was no more than I have stated; and it was out of the public
+treasury that these payments were to be made, because there could be no
+other honest way of getting the money.
+
+But let us now come to the main point, which is to ascertain what sums
+the country could really bear. Mr. Hastings maintains (whether in the
+speech of his counsel or otherwise I do not recollect) that the revenue
+of the country was 400,000_l._, that it constantly paid that sum, and
+flourished under the payment. In answer to this, I refer your Lordships,
+first, to Mr. Markham's declaration, and the Wassil Baakee, which is in
+page 1750 of the printed Minutes. I next refer your Lordships to Mr.
+Duncan's Reports, in page 2493. According to Mr. Duncan's public
+estimate of the revenue of Benares, the net collections of the very year
+we are speaking of, when Durbege Sing had the management, and when Mr.
+Markham, his Persian moonshee, and a clerk in his private house, made
+their estimates without any documents, or with whatever documents, or
+God only knows, for nothing appears on the record of the
+transaction,--the collections yielded in that year but 340,000_l._, that
+is, 20,000_l._ less than Mr. Markham's estimate. But take it which way
+you will, whether you take it at Mr. Markham's 360,000_l._, or at Mr.
+Duncan's 340,000_l._, your Lordships will see, that, after reserving
+60,000_l._ for his own private expenses, the Rajah could not realize a
+sum nearly equal to the tribute demanded.
+
+Your Lordships have also in evidence before you an account of the
+produce of the country for I believe full five years after this period,
+from which it appears that it never realized the forty lacs, or anything
+like it,--yielding only thirty-seven and thirty-nine lacs, or
+thereabouts, which is 20,000_l._ short of Mr. Markham's estimate, and
+160,000_l._ short of Mr. Hastings's. On what data could the prisoner at
+your bar have formed this estimate? Where were all the clerks and
+mutsuddies, where were all the men of business in Benares, who could
+have given him complete information upon the subject? We do not find the
+trace of any of them; all our information is Mr. Markham's moonshee, and
+some clerk of Durbege Sing's employed in Mr. Markham's private
+counting-house, in estimating revenues of a country.
+
+The disposable revenue was still further reduced by the jaghires which
+Mr. Hastings granted, but to what amount does not appear. He mentions
+the increase in the revenue by the confiscation of the estates of the
+Baboos, who had been in rebellion. This he rates at six lacs. But we
+have inspected the accounts, we have examined them with that sedulous
+attention which belongs to that branch of the legislature that has the
+care of the public revenues, and we have not found one trace of this
+addition. Whether these confiscations were ever actually made remains
+doubtful; but if they were made, the application or the receipt of the
+money they yielded does not appear in any account whatever. I leave your
+Lordships to judge of this.
+
+But it may be said that Hastings might have been in an error. If he was
+in an error, my Lords, his error continued an extraordinary length of
+time. The error itself was also extraordinary in a man of business: it
+was an error of account. If his confidential agent, Mr. Markham, had
+originally contributed to lead him into the error, he soon perceived it.
+He soon informed Mr. Hastings that his expectations were erroneous, and
+that he had overrated the country. What, then, are we to think of his
+persevering in this error? Mr. Hastings might have formed extravagant
+and wild expectations, when he was going up the country to plunder; for
+we allow that avarice may often overcalculate the hoards that it is
+going to rob. If a thief is going to plunder a banker's shop, his
+avarice, when running the risk of his life, may lead him to imagine
+there is more money in the shop than there really is. But when this man
+was in possession of the country, how came he not to know and understand
+the condition of it better? In fact, he was well acquainted with it; for
+he has declared it to be his opinion that forty lacs was an overrated
+calculation, and that the country could not continue to pay this tribute
+at the very time he was imposing it. You have this admission in page 294
+of the printed Minutes; but in the very face of it he says, if the Rajah
+will exert himself, and continue for some years the regular payment, he
+will then grant him a remission. Thus the Rajah was told, what he well
+knew, that he was overrated, but that at some time or another he was to
+expect a remission. And what, my Lords, was the condition upon which he
+was to obtain this promised indulgence? The punctual payment of that
+which Mr. Hastings declares he was not able to pay,--and which he could
+not pay without ruining the country, betraying his own honor and
+character, and acting directly contrary to the duties of the station in
+which Mr. Hastings had placed him. Thus this unfortunate man was
+compelled to have recourse to the most rigorous exaction, that he might
+be enabled to satisfy the exorbitant demand which had been made upon
+him.
+
+But let us suppose that the country was able to afford the sum at which
+it was assessed, and that nothing was required but vigor and activity in
+the Rajah. Did Mr. Hastings endeavor to make his strength equal to the
+task imposed on him? No: the direct contrary. In proportion as he
+augmented the burdens of this man, in just that proportion he took away
+his strength and power of supporting these burdens. There was not one of
+the external marks of honor which attended the government of Cheyt Sing
+that he did not take away from the new Rajah; and still, when this new
+man came to his new authority, deprived of all external marks of
+consequence, and degraded in the opinion of his subjects, he was to
+extort from his people an additional revenue, payable to the Company, of
+fifteen lacs of rupees more than was paid by the late Rajah in all the
+plenitude of undivided authority. To increase this difficulty still
+more, the father and guardian of this inexperienced youth was a man who
+had no credit or reputation in the country. This circumstance alone was
+a sufficient drawback from the weight of his authority; but Mr. Hastings
+took care that he should be divested of it altogether; for, as our
+charge states, he placed him under the immediate direction of Mr.
+Markham, and consequently Mr. Markham was the governor of the country.
+Could a man with a reduced, divided, contemptible authority venture to
+strike such bold and hardy strokes as would be efficient without being
+oppressive? Could he or any other man, thus bound and shackled, execute
+such vigorous and energetic measures as were necessary to realize such
+an enormous tribute as was imposed upon this unhappy country?
+
+My Lords, I must now call your attention to another circumstance, not
+mentioned in the charge, but connected with the appointment of the new
+Rajah, and of his Naib, Durbege Sing, and demonstrative of the unjust
+and cruel treatment to which they were exposed. It appears from a letter
+produced here by Mr. Markham, (upon which kind of correspondence I shall
+take the liberty to remark hereafter,) that the Rajah lived in perpetual
+apprehension of being removed, and that a person called Ussaun Sing was
+intended as his successor. Mr. Markham, in one part of his
+correspondence, tells you that the Rajah did not intend to hold the
+government any longer. Why? Upon a point of right, namely, that he did
+not possess it upon the same advantageous terms as Cheyt Sing; but he
+tells you in another letter, (and this is a much better key to the whole
+transaction,) that he was in dread of that Ussaun Sing whom I have just
+mentioned. This man Mr. Hastings kept ready to terrify the Rajah; and
+you will, in the course of these transactions, see that there is not a
+man in India, of any consideration, against whom Mr. Hastings did not
+keep a kind of pretender, to keep him in continual awe. This Ussaun
+Sing, whom Mr. Hastings brought up with him to Benares, was dreaded by
+Cheyt Sing not less than by his successor. We find that he was at first
+nominated Naib or acting governor of the country, but had never been put
+in actual possession of this high office, and Durbege Sing was appointed
+to it. Although Ussaun Sing was thus removed, he continued his
+pretensions, and constantly solicited the office. Thus the poor man
+appointed by Mr. Hastings, and actually in possession, was not only
+called upon to perform tasks beyond his strength, but was overawed by
+Mr. Markham, and terrified by Ussaun Sing, (the mortal enemy of the
+family,) who, like an accusing fiend, was continually at his post, and
+unceasingly reiterating his accusations. This Ussaun Sing was, as Mr.
+Markham tells you, one of the causes of the Rajah's continued dejection
+and despondency. But it does not appear that any of these circumstances
+were ever laid before the Council; the whole passed between Mr. Hastings
+and Mr. Markham.
+
+Mr. Hastings having by his arbitrary will thus disposed of the revenue
+and of the landed property of Benares, we will now trace his further
+proceedings and their effects. He found the country most flourishing in
+agriculture and in trade; but not satisfied with the experiment he had
+made upon the government, upon the revenues, upon the reigning family,
+and upon all the landed property, he resolved to make as bold and as
+novel an experiment upon the commercial interests of the country.
+Accordingly he entirely changed that part of the revenue system which
+affects trade and commerce, the life and soul of a state. Without any
+advice that we know of, except Mr. Markham's, he sat down to change in
+every point the whole commercial system of that country; and he
+effected the change upon the same arbitrary principles which he had
+before acted upon, namely, his own arbitrary will. We are told, indeed,
+that he consulted bankers and merchants; but when your Lordships shall
+have learned what has happened from this experiment, you will easily see
+whether he did resort to proper sources of information or not. You will
+see that the mischief which has happened has proceeded from the exercise
+of arbitrary power. Arbitrary power, my Lords, is always a miserable
+creature. When a man once adopts it as the principle of his actions, no
+one dares to tell him a truth, no one dares to give him any information
+that is disagreeable to him; for all know that their life and fortune
+depend upon his caprice. Thus the man who lives in the exercise of
+arbitrary power condemns himself to eternal ignorance. Of this the
+prisoner at your bar affords us a striking example. This man, without
+advice, without assistance, and without resource, except in his own
+arbitrary power, stupidly ignorant in himself, and puffed up with the
+constant companion of ignorance, a blind presumption, alters the system
+of commercial imposts, and thereby ruined the whole trade of the
+country, leaving no one part of it undestroyed.
+
+Let me now call your Lordships' attention to his assumption of power,
+without one word of communication with the Council at Calcutta, where
+the whole of these trading regulations might and ought to have been
+considered, and where they could have been deliberately examined and
+determined upon. By this assumption the Council was placed in the
+situation which I have before described: it must either confirm his
+acts, or again undo everything which had been done. He had provided not
+only against resistance, but almost against any inquiry into his wild
+projects. He had by his opium contracts put all vigilance asleep, and by
+his bullock and other contracts he had secured a variety of concealed
+interests, both abroad and at home. He was sure of the ratification of
+his acts by the Council, whenever he should please to inform them of his
+measures; and to his secret influence he trusted for impunity in his
+career of tyranny and oppression.
+
+In bringing before you his arbitrary mode of imposing duties, I beg to
+remind your Lordships, that, when I examined Mr. Markham concerning the
+imposing of a duty of five per cent instead of the former duty of two, I
+asked him whether that five per cent was not laid on in such a manner as
+utterly to extinguish the trade, and whether it was not in effect and
+substance five times as much as had been paid before. What was his
+answer? Why, that many plans, which, when considered in the closet, look
+specious and plausible, will not hold when they come to be tried in
+practice, and that this plan was one of them. The additional duties,
+said he, have never since been exacted. But, my Lords, the very attempt
+to exact them utterly ruined the trade of the country. They were imposed
+upon a visionary theory, formed in his own closet, and the result was
+exactly what might have been anticipated. Was it not an abominable thing
+in Mr. Hastings to withhold from the Council the means of ascertaining
+the real operation of his taxes? He had no knowledge of trade himself;
+he cannot keep an account; he has no memory. In fact, we find him a man
+possessed of no one quality fit for any kind of business whatever. We
+find him pursuing his own visionary projects, without knowing anything
+of the nature or [of?] the circumstances under which the trade of the
+country was carried on. These projects might have looked very plausible:
+but when you come to examine the actual state of the trade, it is not
+merely a difference between five and two per cent, but it becomes a
+different mode of estimating the commodity, and it amounts to five times
+as much as was paid before. We bring this as an exemplification of this
+cursed mode of arbitrary proceeding, and to show you his total ignorance
+of the subject, and his total indifference about the event of the
+measure he was pursuing. When he began to perceive his blunders, he
+never took any means whatever to put the new regulations which these
+blunders had made necessary into execution, but he left all this
+mischievous project to rage in its full extent.
+
+I have shown your Lordships how he managed the private property of the
+country, how he managed the government, and how he managed the trade. I
+am now to call your Lordships' attention to some of the consequences
+which have resulted from the instances of management, or rather gross
+mismanagement, which have been brought before you. Your Lordships will
+recollect that none of these violent and arbitrary measures, either in
+their conception or in the progress of their execution, were officially
+made known to the Council; and you will observe, as we proved, that the
+same criminal concealment existed with respect to the fatal consequences
+of these acts.
+
+After the flight of Cheyt Sing, the revenues were punctually paid by the
+Naib, Durbege Sing, month by month, kist by kist, until the month of
+July, and then, as the country had suffered some distress, the Naib
+wished this kist, or instalment, to be thrown on the next month. You
+will ask why he wished to burden this month beyond the rest. I reply,
+The reason was obvious: the month of August is the last of the year, and
+he would, at its expiration, have the advantage of viewing the receipts
+of the whole year, and ascertaining the claim of the country to the
+remission of a part of the annual tribute which Mr. Hastings had
+promised, provided the instalments were paid regularly. It was well
+known to everybody that the country had suffered very considerably by
+the revolt, and by a drought which prevailed that year. The Rajah,
+therefore, expected to avail himself of Mr. Hastings's flattering
+promise, and to save by the delay the payment of one of the two kists.
+But mark the course that was taken. The two kists were at once demanded
+at the end of the year, and no remission of tribute was allowed. By the
+promise of remission Mr. Hastings tacitly acknowledged that the Rajah
+was overburdened; and he admits that the payment of the July kist was
+postponed at the Rajah's own desire. He must have seen the Rajah's
+motive for desiring delay, and he ought to have taken care that this
+poor man should not be oppressed and ruined by this compliance with
+requests founded on such motives.
+
+So passed the year 1781. No complaints of arrears in Durbege Sing's
+payments appear on record before the month of April, 1782; and I wish
+your Lordships seriously to advert to the circumstances attending the
+evidence respecting these arrears, which has been produced for the first
+time by the prisoner in his defence here at your bar. This evidence does
+not appear in the Company's records; it does not appear in the book of
+the Benares correspondence; it does not appear in any documents to which
+the Commons could have access; it was unknown to the Directors, unknown
+to the Council, unknown to the Residents, Mr. Markham's successors, at
+Benares, unknown to the searching and inquisitive eye of the Commons of
+Great Britain. This important evidence was drawn out of Mr. Markham's
+pocket, in the presence of your Lordships. It consists of a private
+correspondence which he carried on with Mr. Hastings, unknown to the
+Council, after Durbege Sing had been appointed Naib, after the new
+government had been established, after Mr. Hastings had quitted that
+province, and had apparently wholly abandoned it, and when there was no
+reason whatever why the correspondence should not be public. This
+private correspondence of Mr. Markham's, now produced for the first
+time, is full of the bitterest complaints against Durbege Sing. These
+clandestine complaints, these underhand means of accomplishing the ruin
+of a man, without the knowledge of his true and proper judges, we
+produce to your Lordships as a heavy aggravation of our charge, and as a
+proof of a wicked conspiracy to destroy the man. For if there was any
+danger of his falling into arrears when the heavy accumulated kists came
+upon him, the Council ought to have known that danger; they ought to
+have known every particular of these complaints: for Mr. Hastings had
+then carried into effect his own plans.
+
+I ought to have particularly marked for your Lordships' attention this
+second era of clandestine correspondence between Mr. Hastings and Mr.
+Markham. It commenced after Mr. Hastings had quitted Benares, and had
+nothing to do with it but as Governor-General: even after his
+extraordinary, and, as we contend, illegal, power had completely
+expired, the same clandestine correspondence was carried on. He
+apparently considered Benares as his private property; and just as a man
+acts with his private steward about his private estate, so he acted with
+the Resident at Benares. He receives from him and answers letters
+containing a series of complaints against Durbege Sing, which began in
+April and continued to the month of November, without making any public
+communication of them. He never laid one word of this correspondence
+before the Council until the 29th of November, and he had then
+completely settled the fate of this Durbege Sing.
+
+This clandestine correspondence we charge against him as an act of
+rebellion; for he was bound to lay before the Council the whole of his
+correspondence relative to the revenue and all the other affairs of the
+country. We charge it not only as rebellion against the orders of the
+Company and the laws of the land, but as a wicked plot to destroy this
+man, by depriving him of any opportunity of defending himself before the
+Council, his lawful judges. I wish to impress it strongly on your
+Lordships' minds, that neither the complaints of Mr. Markham nor the
+exculpations of Durbege Sing were ever made known till Mr. Markham was
+examined in this hall.
+
+The first intimation afforded the Council of what had been going on at
+Benares from April, 1782, at which time, Mr. Markham says, the
+complaints against Durbege Sing had risen to serious importance, was in
+a letter dated the 27th of November following. This letter was sent to
+the Council from Nia Serai, in the Ganges, where Mr. Hastings had
+retired for the benefit of the air. During the whole time he was in
+Calcutta, it does not appear upon the records that he had ever held any
+communication with the Council upon the subject. The letter is in the
+printed Minutes, page 298, and is as follows.
+
+"_The Governor-General._--I desire the Secretary to lay the accompanying
+letters from Mr. Markham before the board, and request that orders may
+be immediately sent to him concerning the subjects contained in them. It
+may be necessary to inform the board, that, on repeated information from
+Mr. Markham, which indeed was confirmed to me beyond a doubt by other
+channels, and by private assurances which I could trust, that the
+affairs of that province were likely to fall into the greatest confusion
+from the misconduct of Baboo Durbege Sing, whom I had appointed the
+Naib, fearing the dangerous consequences of a delay, and being at too
+great a distance to consult the members of the board, who I knew could
+repose that confidence in my local knowledge as to admit of this
+occasional exercise of my own separate authority, I wrote to Mr. Markham
+the letter to which he alludes, dated the 29th of September last, of
+which I now lay before the board a copy. The first of the accompanying
+letters from Mr. Markham arrived at a time when a severe return of my
+late illness obliged me, by the advice of my physicians, to leave
+Calcutta for the benefit of the country air, and prevented me from
+bringing it earlier before the notice of the board."
+
+I have to remark upon this part of the letter, that he claims for
+himself an exercise of his own authority. He had now no delegation, and
+therefore no claim to separate authority. He was only a member of the
+board, obliged to do everything according to the decision of the
+majority, and yet he speaks of his own separate authority; and after
+complimenting himself, he requests its confirmation. The complaints of
+Mr. Markham had been increasing, growing, and multiplying upon him, from
+the month of April preceding, and he had never given the least
+intimation of it to the board until he wrote this letter. This was at so
+late a period that he then says, "The time won't wait for a remedy; I am
+obliged to use my own separate authority"; although he had had abundant
+time for laying the whole matter before the Council.
+
+He next goes on to say,--"It had, indeed, been my intention, but for the
+same cause, to have requested the instructions of the board for the
+conduct of Mr. Markham in the difficulties which he had to encounter
+immediately after the date of my letter to him, and to have recommended
+the substance of it for an order to the board." He seems to have
+promised Mr. Markham, that, if the violent act which Mr. Markham
+proposed, and which he, Mr. Hastings, ordered, was carried into
+execution, an authority should be procured from the board. He, however,
+did not get Mr. Markham such an authority. Why? Because he was resolved,
+as he has told you, to act by his own separate authority; and because,
+as he has likewise told you, that he disobeys the orders of the Court of
+Directors, and defies the laws of his country, as a signal of his
+authority.
+
+Now what does he recommend to the board? That it will be pleased to
+confirm the appointment which Mr. Markham made in obedience to his
+individual orders, as well as the directions which he had given him to
+exact from Baboo Durbege Sing with the utmost rigor every rupee of the
+collections, and either to confine him at Benares or send him to Chunar
+and imprison him there until the whole of his arrears were paid up.
+Here, then, my Lords, you have, what plainly appears in every act of Mr.
+Hastings, a feeling of resentment for some personal injury. "I feel
+myself," says he, "and may be allowed on such an occasion to acknowledge
+it, personally hurt at the ingratitude of this man, and the discredit
+which his ill conduct has thrown on my appointment of him. The Rajah
+himself, scarcely arrived at the verge of manhood, was in understanding
+but little advanced beyond the term of childhood; and it had been the
+policy of Cheyt Sing to keep him equally secluded from the world and
+from business." This is the character Mr. Hastings gives of a man whom
+he appointed to govern the country. He goes on to say of Durbege
+Sing,--"As he was allowed a jaghire of a very liberal amount, to enable
+him to maintain a state and consequence suitable both to the relation in
+which he stood to the Rajah and the high office which had been assigned
+to him, and sufficient also to free him from the temptation of little
+and mean peculations, it is therefore my opinion, and I recommend, that
+Mr. Markham be ordered to divest him of his jaghire, and reunite it to
+the _malguzaree_, or the land paying its revenue through the Rajah to
+the Company. The opposition made by the Rajah and the old Ranny, both
+equally incapable of judging for themselves, do certainly originate from
+some secret influence which ought to be checked by a decided and
+peremptory declaration of the authority of the board, and a denunciation
+of their displeasure at their presumption. If they can be induced to
+yield the appearance of a cheerful acquiescence in the new arrangement,
+and to adopt it as a measure formed with their participation, it would
+be better than that it should be done by a declared act of compulsion;
+but at all events it ought to be done." My Lords, it had been already
+done: the Naib was dismissed; he was imprisoned; his jaghire was
+confiscated: all these things were done by Mr. Hastings's orders. He had
+resolved to take the whole upon himself; he had acted upon that
+resolution before he addressed this letter to the board.
+
+Thus, my Lords, was this unhappy man punished without any previous
+trial, or any charges, except the complaints of Mr. Markham, and some
+other private information which Mr. Hastings said he had received.
+Before the poor object of these complaints could make up his accounts,
+before a single step was taken, judicially or officially, to convict him
+of any crime, he was sent to prison, and his private estates
+confiscated.
+
+My Lords, the Commons of Great Britain claim from you, that no man shall
+be imprisoned till a regular charge is made against him, and the accused
+fairly heard in his defence. They claim from you, that no man shall be
+imprisoned on a matter of account, until the account is settled between
+the parties. And claiming this, we do say that the prisoner's conduct
+towards Durbege Sing was illegal, unjust, violent, and oppressive. The
+imprisonment of this man was clearly illegal on the part of Mr.
+Hastings, as he acted without the authority of the Council, and doubly
+oppressive, as the imprisoned man was thereby disabled from settling his
+account with the numberless sub-accountants whom he had to deal with in
+the collection of the revenue.
+
+Having now done with these wicked, flagitious, abandoned, and abominable
+acts, I shall proceed to the extraordinary powers given by Mr. Hastings
+to his instrument, Mr. Markham, who was employed in perpetrating these
+acts, and to the very extraordinary instructions which he gave this
+instrument for his conduct in the execution of the power intrusted to
+him. In a letter to Mr. Markham, he says,--
+
+"I need not tell you, my dear Sir, that I possess a very high opinion of
+your abilities, and that I repose the utmost confidence in your
+integrity." He might have had reason for both, but he scarcely left to
+Mr. Markham the use of either. He arbitrarily imposed upon him the tasks
+which he wished him to execute, and he engaged to bear out his acts by
+his own power. "From your long residence at Benares," says he, "and from
+the part you have had in the business of that zemindary, you must
+certainly best know the men who are most capable and deserving of public
+employment. From among these I authorize you to nominate a Naib to the
+Rajah, in the room of Durbege Sing, whom, on account of his ill conduct,
+I think it necessary to dismiss from that office. It will be hardly
+necessary to except Ussaun Sing from the description of men to whom I
+have limited your choice, yet it may not be improper to apprise you that
+I will on no terms consent to his being Naib. In forming the
+arrangements consequent upon this new appointment, I request you will,
+as far as you can with propriety, adopt those which were in use during
+the life of Bulwant Sing,--so far, at least, as to have distinct offices
+for distinct purposes, independent of each other, and with proper men at
+the head of each; so that one office may detect or prevent any abuses
+or irregularities in the others, and together form a system of
+reciprocal checks. Upon that principle, I desire you will in particular
+establish, under whatever names, one office of receipts, and another of
+treasury. The officers of both must be responsible for the truth and
+regularity of their respective accounts, but not subject in the
+statement of them to the control or interference of the Rajah or Naib;
+nor should they be removable at pleasure, but for manifest misconduct
+only. At the head of one or other of these offices I could wish to see
+the late Buckshee, Rogoober Dyall. His conduct in his former office, his
+behavior on the revolt of Cheyt Sing, and particularly at the fall of
+Bidjegur, together with his general character, prove him worthy of
+employment, and of the notice of our government. It is possible that he
+may have objections to holding an office under the present Rajah: offer
+him one, however, and let him know that you do so by my directions." He
+then goes on to say,--"Do not wholly neglect the Rajah; consult with him
+in appearance, but in appearance only. His situation requires that you
+should do that much; but his youth and inexperience forbid that you
+should do more."
+
+You see, my Lords, he has completely put the whole government into the
+hands of a man who had no name, character, or official situation, but
+that of the Company's Resident at that place. Let us now see what is the
+office of a Resident. It is to reside at the court of the native prince,
+to give the Council notice of the transactions that are going on there,
+and to take care that the tribute be regularly paid, kist by kist. But
+we have seen that Mr. Markham, the Resident at Benares, was invested by
+Mr. Hastings with supreme authority in this unhappy country. He was to
+name whoever he pleased to its government, with the exception of Ussaun
+Sing, and to drive out the person who had possessed it under an
+authority which could only be revoked by the Council. Thus Mr. Hastings
+delegated to Mr. Markham an authority which he himself did not really
+possess, and which could only be legally exercised through the medium of
+the Council.
+
+With respect to Durbege Sing, he adds,--"He has dishonored my choice of
+him." _My_ choice of him! "It now only remains to guard against the ill
+effects of his misconduct, to detect and punish it. To this end I desire
+that the officers to be appointed in consequence of these instructions
+do, with as much accuracy and expedition as possible, make out an
+account of the receipts, disbursements, and transactions of Durbege
+Sing, during the time he has acted as Naib of the zemindary of Benares;
+and I desire you will, in my name, assure him, that, unless he pays at
+the limited time every rupee of the revenue due to the Company, his life
+shall answer for the default. I need not caution you to provide against
+his flight, and the removal of his effects." He here says, my Lords,
+that he will detect and punish him; but the first thing he does, without
+any detection, even before the accounts he talks of are made up, and
+without knowing whether he has got the money or not, he declares that he
+will have every rupee paid at the time, or otherwise the Naib's life
+shall pay for it.
+
+Is this the language of a British governor,--of a person appointed to
+govern _by law_ nations subject to the dominion and under the protection
+of this kingdom? Is he to order a man to be first imprisoned and
+deprived of his property, then, for an inquiry to be made, and to
+declare, during that inquiry, that, if every rupee of a presumed
+embezzlement be not paid up, the life of his victim shall answer for it?
+And accordingly this man's life did answer for it,--as I have already
+had occasion to mention to your Lordships.
+
+I will now read Mr. Markham's letter to the Council, in which he enters
+into the charges against Durbege Sing, after this unhappy man had been
+imprisoned.
+
+Benares, 24th of October, 1782.--"I am sorry that my duty obliges me to
+mention to your Honorable Board my apprehensions of a severe loss
+accruing to the Honorable Company, if Baboo Durbege Sing is continued in
+the Naibut during the present year. I ground my fears on the knowledge I
+have had of his mismanagement, the bad choice he has made of his aumils,
+the mistrust which they have of him, and the several complaints which
+have been preferred to me by the ryots of almost every purgunnah in the
+zemindary. I did not choose to waste the time of your Honorable Board in
+listening to my representations of his inattention to the complaints of
+oppression which were made to him by his ryots, as I hoped that a letter
+he received from the Honorable Governor-General would have had weight
+sufficient to have made him more regular in his business, and more
+careful of his son's interest."
+
+My Lords, think of the condition of your government in India! Here is a
+Resident at Benares exercising power not given to him by virtue of his
+office, but given only by the private orders of the prisoner at your
+bar. And what is it he does? He says, he did not choose to trouble the
+Council with a particular account of his reasons for removing a man who
+possessed an high office under their immediate appointment. The Council
+was not to know them: he did not choose to waste the time of their
+honorable board in listening to the complaints of the people. No: the
+honorable board is not to have its time wasted in that improper manner;
+therefore, without the least inquiry or inquisition, the man must be
+imprisoned, and deprived of his office; he must have all his property
+confiscated, and be threatened with the loss of his life.
+
+These are crimes, my Lords, for which the Commons of Great Britain knock
+at the breasts of your consciences, and call for justice. They would
+think themselves dishonored forever, if they had not brought these
+crimes before your Lordships, and with the utmost energy demanded your
+vindictive justice, to the fullest extent in which it can be rendered.
+
+But there are some aggravating circumstances in these crimes, which I
+have not yet stated. It appears that this unhappy and injured man was,
+without any solicitation of his own, placed in a situation the duties of
+which even Mr. Hastings considered it impossible for him to execute.
+Instead of supporting him with the countenance of the supreme
+government, Mr. Hastings did everything to lessen his weight, his
+consequence, and authority. And when the business of the collection
+became embarrassed, without any fault of his, that has ever yet been
+proved, Mr. Markham instituted an inquiry. What kind of inquiry it was
+that would or could be made your Lordships will judge. While this was
+going on, Mr. Markham tells you, that, in consequence of orders which
+he had received, he first put him into a gentle confinement. Your
+Lordships know what that confinement was; and you know what it is for a
+man of his rank to be put into any confinement. We have shown he was
+thereby incapable of transacting business. His life had been threatened,
+if he should not pay in the balance of his accounts within a short
+limited time; still he was subjected to confinement, while he had money
+accounts to settle with the whole country. Could a man in gaol,
+dishonored and reprobated, take effectual means to recover the arrears
+which he was called upon to pay? Could he, in such a situation, recover
+the money which was unpaid to him, in such an extensive district as
+Benares? Yet Mr. Markham tells the Council he thought proper "that
+Durbege Sing should be put under a gentle confinement, until I shall
+receive your Honorable Board's orders for any future measures." Thus Mr.
+Markham, without any orders from the Council, assumed an authority to do
+that which we assert a Resident at Benares had no right to do, but to
+which he was instigated by Mr. Hastings's recommendation that Durbege
+Sing should be prevented from flight.
+
+Now, my Lords, was it to be expected that a man of Durbege Sing's rank
+should suffer these hardships and indignities, and at the same time kiss
+the rod and say, "I have deserved it all"? We know that all mankind
+revolts at oppression, if it be real; we know that men do not willingly
+submit to punishment, just or unjust; and we find that Durbege Sing had
+near relatives, who used for his relief all the power which was left
+them,--that of remonstrating with his oppressors. Two _arzees_, or
+petitions, were presented to the Council, of which we shall first call
+your Lordships' attention to one from the dowager princess of Benares,
+in favor of her child and of her family.
+
+
+    _From the Ranny, widow of Bulwant Sing. Received the 15th of
+    December, 1782._
+
+    "I and my children have no hopes but from your Highness, and our
+    honor and rank are bestowed by you. Mr. Markham, from the advice of
+    my enemies, having protected the farmers, would not permit the
+    balances to be collected. Baboo Durbege Sing frequently before
+    desired that gentleman to show his resentment against the people who
+    owed balances, that the balances might be collected, and to give
+    ease to his mind for the present year, conformably to the requests
+    signed by the presence, that he might complete the _bundobust_. But
+    that gentleman would not listen to him, and, having appointed a
+    _mutsuddy_ and _tahsildar_, employs them in the collections of the
+    year, and sent two companies of sepoys and arrested Baboo Durbege
+    Sing upon this charge, that he had secreted in his house many lacs
+    of rupees from the collections, and he carried the mutsuddies and
+    treasurer with their papers to his own presence. He neither
+    ascertained this matter by proofs, nor does he complete the balance
+    of the sircar from the _jaidads_ of the balances: right or wrong, he
+    is resolved to destroy our lives. As we have no asylum or hope
+    except from your Highness, and as the Almighty has formed your mind
+    to be a distributor of justice in these times, I therefore hope from
+    the benignity of your Highness, that you will inquire and do justice
+    in this matter, and that an _aumeen_ may be appointed from the
+    presence, that, having discovered the crimes or innocence of Baboo
+    Durbege Sing, he may report to the presence. Further particulars
+    will be made known to your Highness by the arzee of my son Rajah
+    Mehip Narrain Bahadur."
+
+
+    _Arzee from Rajah Mehip Narrain Bahadur. Received 15th December,
+    1782._
+
+    "I before this had the honor of addressing several arzees to your
+    presence; but, from my unfortunate state, not one of them has been
+    perused by your Highness, that my situation might be fully learnt by
+    you. The case is this. Mr. Markham, from the advice of my enemies,
+    having occasioned several kinds of losses, and given protection to
+    those who owed balances, prevented the balance from being
+    collected,--for this reason, that, the money not being paid in time,
+    the Baboo might be convicted of inability. From this reason, all the
+    owers of balances refused to pay the _malwajib_ of the sircar.
+    Before this, the Baboo had frequently desired that gentleman to show
+    his resentment against the persons who owed the balances, that the
+    balances might be paid, and that his mind might be at ease for the
+    present year, so that the _bundobust_ of the present year might be
+    completed,--adding, that, if, next year, such kinds of injuries, and
+    protection of the farmers, were to happen, he should not be able to
+    support it."
+
+I am here to remark to your Lordships, that the last of these petitions
+begins by stating, "I before this have had the honor of addressing
+several arzees to your presence; but, from my unfortunate state, not one
+of them has been perused by your Highness." My Lords, if there is any
+one right secured to the subject, it is that of presenting a petition
+and having that petition noticed. This right grows in importance in
+proportion to the power and despotic nature of the governments to which
+the petitioner is subject: for where there is no sort of remedy from any
+fixed laws, nothing remains but complaint, and prayers, and petitions.
+This was the case in Benares: for Mr. Hastings had destroyed every trace
+of law, leaving only the police of the single city of Benares. Still we
+find this complaint, prayer, and petition was not the first, but only
+one of many, which Mr. Hastings took no notice of, entirely despised,
+and never would suffer to be produced to the Council; which never knew
+anything, until this bundle of papers came before them, of the complaint
+of Mr. Markham against Durbege Sing, or of the complaint of Durbege Sing
+against Mr. Markham.
+
+Observe, my Lords, the person that put Durbege Sing in prison was Mr.
+Markham; while the complaint in the arzee is, that Mr. Markham was
+himself the cause of the very failure for which he imprisoned him. Now
+what was the conduct of Mr. Hastings as judge? He has two persons before
+him: the one in the ostensible care of the revenue of the country; the
+other his own agent, acting under his authority. The first is accused by
+the second of default in his payments; the latter is complained of by
+the former, who says that the occasion of the accusation had been
+furnished by him, the accuser. The judge, instead of granting redress,
+dismisses the complaints against Mr. Markham with reprehension, and
+sends the complainant to rot in prison, without making one inquiry, or
+giving himself the trouble of stating to Mr. Markham the complaints
+against him, and desiring him to clear himself from them. My Lords, if
+there were nothing but this to mark the treacherous and perfidious
+nature of his conduct, this would be sufficient.
+
+In this state of things, Mr. Hastings thus writes.
+
+"To Mr. Markham. The measures which you have taken with Baboo Durbege
+Sing are perfectly right and proper, so far as they go; and we now
+direct that you exact from him, with the utmost rigor, every rupee of
+the collections which it shall appear that he has made and not brought
+to account, and either confine him at Benares, or send him prisoner to
+Chunar, and keep him in confinement until he shall have discharged the
+whole of the amount due from him."
+
+He here employs the very person against whom the complaint is made to
+imprison the complainant. He approves the conduct of his agent without
+having heard his defence, and leaves him, at his option, to keep his
+victim a prisoner at Benares, or to imprison him in the fortress of
+Chunar, the infernal place to which he sends the persons whom he has a
+mind to extort money from.
+
+Your Lordships will be curious to know how this debt of Durbege Sing
+stood at the time of his imprisonment. I will state the matter to your
+Lordships briefly, and in plain language, referring you for the
+particulars of the account to the papers which are in your Minutes. It
+appears from them, that, towards the end of the yearly account in 1782,
+a kist or payment of eight lacs (about 80,000_l._), the balance of the
+annual tribute, was due. In part of this kist, Durbege Sing paid two
+lacs (20,000_l._). Of the remaining six lacs (60,000_l._), the
+outstanding debts in the country due to the revenue, but not collected
+by the Naib, amounted to four lacs (40,000_l._). Thus far the account
+is not controverted by the accusing party. But Mr. Markham asserts that
+he _shall_ be able to prove that the Naib had also actually received the
+other two lacs (20,000_l._), and consequently was an actual defaulter to
+that amount, and had, upon the whole, suffered the annual tribute to
+fall six lacs in arrear. The Naib denies the receipt of the two lacs
+just mentioned, and challenges inquiry; but no inquiries appear to have
+been made, and to this hour Mr. Markham has produced no proof of the
+fact. With respect to the arrear of the tribute money which appeared on
+the balance of the whole account, the Naib defended himself by alleging
+the distresses of the country, the diminution of his authority, and the
+want of support from the supreme government in the collection of the
+revenues; and he asserts that he has assets sufficient, if time and
+power be allowed him for collecting them, to discharge the whole balance
+due to the Company. The immediate payment of the whole balance was
+demanded, and Durbege Sing, unable to comply with the demand, was sent
+to prison. Thus stood the business, when Mr. Markham, soon after he had
+sent the Naib to prison, quitted the Residency. He was succeeded by Mr.
+Benn, who acted exactly upon the same principle. He declares that the
+six lacs demanded were not demanded upon the principle of its having
+been actually collected by him, but upon the principle of his having
+agreed to pay it. "We have," say Mr. Hastings's agents to the Naib, "we
+have a Jew's bond. If it is in your bond, we will have it, or we will
+have a pound of your flesh: whether you have received it or not is no
+business of ours." About this time some hopes were entertained by the
+Resident that the Naib's personal exertions in collecting the arrears of
+the tribute might be useful. These hopes procured him a short liberation
+from his confinement. He was let out of prison, and appears to have made
+another payment of half a lac of rupees. Still the terms of the bond
+were insisted on, although Mr. Hastings had allowed that these terms
+were extravagant, and only one lac and a half of the money which had
+been actually received remained unpaid. One would think that common
+charity, that common decency, that common regard to the decorum of life
+would, under such circumstances, have hindered Mr. Hastings from
+imprisoning him again. But, my Lords, he was imprisoned again; he
+continued in prison till Mr. Hastings quitted the country; and there he
+soon after died,--a victim to the enormous oppression which has been
+detailed to your Lordships.
+
+It appears that in the mean time the Residents had been using other
+means for recovering the balance due to the Company. The family of the
+Rajah had not been paid one shilling of the 60,000_l._, allowed for
+their maintenance. They were obliged to mortgage their own hereditary
+estates for their support, while the Residents confiscated all the
+property of Durbege Sing. Of the money thus obtained what account has
+been given? None, my Lords, none. It must therefore have been disposed
+of in some abominably corrupt way or other, while this miserable victim
+of Mr. Hastings was left to perish in a prison, after he had been
+elevated to the highest rank in the country.
+
+But, without doubt, they found abundance of effects after his death? No,
+my Lords, they did not find anything. They ransacked his house; they
+examined all his accounts, every paper that he had, in and out of
+prison. They searched and scrutinized everything. They had every penny
+of his fortune, and I believe, though I cannot with certainty know, that
+the man died insolvent; and it was not pretended that he had ever
+applied to his own use any part of the Company's money.
+
+Thus Durbege Sing is gone; this tragedy is finished; a second Rajah of
+Benares has been destroyed. I do not speak of that miserable puppet who
+was said by Mr. Hastings to be in a state of childhood when arrived at
+manhood, but of the person who represented the dignity of the family. He
+is gone; he is swept away; and in his name, in the name of this devoted
+Durbege Sing, in the name of his afflicted family, in the name of the
+people of the country thus oppressed by an usurped authority, in the
+name of all these, respecting whom justice has been thus outraged, we
+call upon your Lordships for justice.
+
+We are now at the commencement of a new order of things. Mr. Markham had
+been authorized to appoint whoever he pleased as Naib, with the
+exception of Ussaun Sing. He accordingly exercises this power, and
+chooses a person called Jagher Deo Seo. From the time of the confinement
+of Durbege Sing to the time of this man's being put into the government,
+in whose hands were the revenues of the country? Mr. Markham himself has
+told you, at your bar, that they were in his hands,--that he was the
+person who not only named this man, but that he had the sole management
+of the revenues; and he was, of course, answerable for them all that
+time. The nominal title of Zemindar was still left to the miserable
+pageant who held it; but even the very name soon fell entirely out of
+use. It is in evidence before your Lordships that his name is not even
+so much as mentioned in the proceedings of the government; and that the
+person who really governed was not the ostensible Jagher Deo Seo, but
+Mr. Markham. The government, therefore, was taken completely and
+entirely out of the hands of the person who had a legal right to
+administer it,--out of the hands of his guardians,--out of the hands of
+his mother,--out of the hands of his nearest relations,--and, in short,
+of all those who, in the common course of things, ought to have been
+intrusted with it. From all such persons, I say, it was taken: and
+where, my Lords, was it deposited? Why, in the hands of a man of whom we
+know nothing, and of whom we never heard anything, before we heard that
+Mr. Markham, of his own usurped authority, authorized by the usurped
+authority of Mr. Hastings, without the least communication with the
+Council, had put him in possession of that country.
+
+Mr. Markham himself, as I have just said, administered the revenues
+alone, without the smallest authority for so doing, without the least
+knowledge of the Council, till Jagher Deo Seo was appointed Naib. Did he
+then give up his authority? No such thing. All the measures of Jagher
+Deo Seo's government were taken with the concurrence and joint
+management of Mr. Markham. He conducted the whole; the settlements were
+made, the leases and agreements with farmers all regulated by him. I
+need not tell you, I believe, that Jagher Deo Seo was not a person of
+very much authority in the case: your Lordships would laugh at me, if I
+said he was. The revenue arrangements were, I firmly believe, regulated
+and made by Mr. Markham. But whether they were or were not, it comes to
+the same thing. If they were improperly made and improperly conducted,
+Mr. Hastings is responsible for the whole of the mismanagement; for he
+gave the entire control to a person who had little experience, who was
+young in the world (and this is the excuse I wish to make for a
+gentleman of that age). He appointed him, and gave him at large a
+discretionary authority to name whom he pleased to be the ostensible
+Naib; but we know that he took the principal part himself in all his
+settlements and in all his proceedings.
+
+Soon after the Naib had been thus appointed and instructed by Mr.
+Markham, he settled, under his directions, the administration of the
+country. Mr. Markham then desires leave from Mr. Hastings to go down to
+Calcutta. I imagine he never returned to Benares; he comes to Europe;
+and here end the acts of this viceroy and delegate.
+
+Let us now begin the reign of Mr. Benn and Mr. Fowke. These gentlemen
+had just the same power delegated to them that Mr. Markham
+possessed,--not one jot less, that I know of; and they were therefore
+responsible, and ought to have been called to an account by Mr. Hastings
+for every part of their proceedings. I will not give you my own account
+of the reign of these gentlemen; but I will read to you what Mr.
+Hastings has thought proper to represent the state of the people to be
+under their government. This course will save your Lordships time and
+trouble; for it will nearly supersede all observations of mine upon the
+subject. I hold in my hand Mr. Hastings's representation of the effects
+produced by a government which was conceived by himself, carried into
+effect by himself, and illegally invested by him with illegal powers,
+without any security or responsibility of any kind. Hear, I say, what an
+account Mr. Hastings gave, when he afterwards went up to Benares upon
+another wicked project, and think what ought to have been his feelings
+as he looked upon the ruin he had occasioned. Think of the condition in
+which he saw Benares the first day he entered it. He then saw it
+beautiful, ornamented, rich,--an object that envy would have shed tears
+over for its prosperity, that humanity would have beheld with eyes
+glistening with joy for the comfort and happiness which were there
+enjoyed by man: a country flourishing in cultivation to such a degree
+that the soldiers were obliged to march in single files through the
+fields of corn, to avoid damaging them; a country in which Mr. Stables
+has stated that the villages were thick beyond all expression; a country
+where the people pressed round their sovereign, as Mr. Stables also told
+you, with joy, triumph, and satisfaction. Such was the country; and in
+such a state and under such a master was it, when he first saw it. See
+what it now is under Warren Hastings; see what it is under the British
+government; and then judge whether the Commons are or are not right in
+pressing the subject upon your Lordships for your decision, and letting
+you and all this great auditory know what sort of a criminal you have
+before you, who has had the impudence to represent to your Lordships at
+your bar that Benares is in a flourishing condition, in defiance of the
+evidence which we have under his own hands, and who, in all the false
+papers that have been circulated to debauch the public opinion, has
+stated that we, the Commons, have given a false representation as to
+the state of the country under the English government.
+
+
+    _Lucknow, the 2d of April, 1784. Addressed to the Honorable Edward
+    Wheler, Esq., &c. Signed Warren Hastings. It is in page 306 of the
+    printed Minutes._
+
+    "Gentlemen,--Having contrived, by making forced stages, while the
+    troops of my escort marched at the ordinary rate, to make a stay of
+    five days at Benares, I was thereby furnished with the means of
+    acquiring some knowledge of the state of the province, which I am
+    anxious to communicate to you: indeed, the inquiry, which was in a
+    great degree obtruded upon me, affected me with very mortifying
+    reflections on my own inability to apply it to any useful purpose.
+
+    "From the confines of Buxar to Benares I was followed and fatigued
+    by the clamors of the discontented inhabitants. It was what I
+    expected in a degree, because it is rare that the exercise of
+    authority should prove satisfactory to all who are the objects of
+    it. The distresses which were produced by the long continued drought
+    unavoidably tended to heighten the general discontent; yet I have
+    reason to fear that the cause existed principally in a defective, if
+    not a corrupt and oppressive administration. Of a multitude of
+    petitions which were presented to me, and of which I took minutes,
+    every one that did not relate to a personal grievance contained the
+    representation of one and the same species of oppression, which is
+    in its nature of an influence most fatal to the future cultivation.
+    The practice to which I allude is this. It is affirmed that the
+    aumils and renters exact from the proprietors of the actual harvest
+    a large increase in kind on their stipulated rent: that is, from
+    those who hold their pottahs by the tenure of paying one half of the
+    produce of their crops, either the whole without a subterfuge, or a
+    large proportion of it by false measurement or other pretexts; and
+    from those whose engagements are for a fixed rent in money the half
+    or a greater proportion is taken in kind. This is in effect a tax
+    upon the industry of the inhabitants; since there is scarcely a
+    field of grain in the province, I might say not one, which has not
+    been preserved by the incessant labor of the cultivator, by digging
+    wells for their supply, or watering them from the wells of masonry
+    with which this country abounds, or from the neighboring tanks,
+    rivers, and nullahs. The people who imposed on themselves this
+    voluntary and extraordinary labor, and not unattended with expense,
+    did it in the expectation of reaping the profits of it; and it is
+    certain that they would not have done it, if they had known that
+    their rulers, from whom they were entitled to an indemnification,
+    would take from them what they had so hardly earned. If the same
+    administration continues, and the country shall again labor under a
+    want of the natural rains, every field will be abandoned, the
+    revenue fail, and thousands perish, through the want of subsistence:
+    for who will labor for the sole benefit of others, and to make
+    himself the subject of vexation? These practices are not to be
+    imputed to the aumils employed in the districts, but to the Naib
+    himself. The avowed principle on which he acts, and which he
+    acknowledged to myself, is, that the whole sum fixed for the revenue
+    of the province must be collected, and that for this purpose the
+    deficiency arising in places where the crops have failed, or which
+    have been left uncultivated, must be supplied from the resources of
+    others, where the soil has been better suited to the season, or the
+    industry of the cultivators more successfully exerted: a principle
+    which, however specious and plausible it may at first appear,
+    certainly tends to the most pernicious and destructive consequences.
+    If this declaration of the Naib had been made only to myself, I
+    might have doubted my construction of it; but it was repeated by him
+    to Mr. Anderson, who understood it exactly in the same sense. In the
+    management of the customs, the conduct of the Naib, or of the
+    officers under him, was forced also upon my attention. The
+    exorbitant rates exacted by an arbitrary valuation of the goods, the
+    practice of exacting duties twice on the same goods, first from the
+    seller and afterwards from the buyer, and the vexatious disputes and
+    delays drawn on the merchants by these oppressions, were loudly
+    complained of; and some instances of this kind were said to exist at
+    the very time when I was in Benares. Under such circumstances, we
+    are not to wonder, if the merchants of foreign countries are
+    discouraged from resorting to Benares, and if the commerce of that
+    province should annually decay.
+
+    "Other evils, or imputed evils, have accidentally come to my
+    knowledge, which I will not now particularize, as I hope that with
+    the assistance of the Resident they may be in part corrected: one,
+    however, I must mention, because it has been verified by my own
+    observation, and is of that kind which reflects an unmerited
+    reproach on our general and national character. When I was at Buxar,
+    the Resident at my desire enjoined the Naib to appoint creditable
+    people to every town through which our route lay, to persuade and
+    encourage the inhabitants to remain in their houses, promising to
+    give them guards as I approached, and they required it for their
+    protection; and that he might perceive how earnest I was for his
+    observance of this precaution, (which I am certain was faithfully
+    delivered,) I repeated it to him in person, and dismissed him, that
+    he might precede me for that purpose: but, to my great
+    disappointment, I found every place through which I passed
+    abandoned; nor had there been a man left in any of them for their
+    protection. I am sorry to add, that, from Buxar to the opposite
+    boundary, I have seen nothing but the traces of complete devastation
+    in every village, whether caused by the followers of the troops
+    which have lately passed, for their natural relief, (and I know not
+    whether my own may not have had their share,) or from the
+    apprehension of the inhabitants left to themselves, and of
+    themselves deserting their houses. I wish to acquit my own
+    countrymen of the blame of these unfavorable appearances, and in my
+    own heart I do acquit them: for at one encampment, near a large
+    village called Derrara, in the purgunnah of Zemaneea, a crowd of
+    people came to me, complaining that their former aumil, who was a
+    native of the place, and had long been established in authority over
+    them, and whose custom it had been, whenever any troops passed, to
+    remain in person on the spot for their protection, having been
+    removed, the new aumil, on the approach of any military detachment,
+    himself first fled from the place, and the inhabitants, having no
+    one to whom they could apply for redress, or for the representation
+    of their grievances, and being thus remediless, fled also; so that
+    their houses and effects became a prey to any person who chose to
+    plunder them. The general conclusion appeared to me an inevitable
+    consequence from such a state of facts,--and my own senses bore
+    testimony to it in this specific instance; nor do I know how it is
+    possible for any officer commanding a military party, how attentive
+    soever he may be to the discipline and forbearance of his people,
+    to prevent disorders, when there is neither opposition to hinder nor
+    evidence to detect them. These and many other irregularities I
+    impute solely to the Naib; and I think it my duty to recommend his
+    instant removal. I would myself have dismissed him, had the control
+    of this province come within the line of my powers, and have
+    established such regulations and checks as would have been most
+    likely to prevent the like irregularities. I have said checks,
+    because, unless there is some visible influence, and a powerful and
+    able one, impended over the head of the manager, no system can
+    avail. The next appointed may prove, from some defect, as unfit for
+    the office as the present; for the choice is limited to few, without
+    experience to guide it. The first was of my own nomination; his
+    merits and qualifications stood in equal balance with my knowledge
+    of those who might have been the candidates for the office; but he
+    was the father of the Rajah, and the affinity sunk the scale wholly
+    in his favor: for who could be so fit to be intrusted with the
+    charge of his son's interest, and the new credit of the rising
+    family? He deceived my expectations. Another was recommended by the
+    Resident, and at my instance the board appointed him. This was
+    Jagher Deo Seo, the present Naib. I knew him not, and the other
+    members of the board as little. While Mr. Markham remained in
+    office, of whom, as his immediate patron, he may have stood in awe,
+    I am told that he restrained his natural disposition, which has been
+    described to me as rapacious, unfeeling, haughty, and to an extreme
+    vindictive.
+
+    "I cannot avoid remarking, that, excepting the city of Benares
+    itself, the province depending upon it is in effect without a
+    government, the Naib exercising only a dependent jurisdiction
+    without a principal. The Rajah is without authority, and even his
+    name disused in the official instruments issued or taken by the
+    manager. The representation of his situation shall be the subject of
+    another letter; I have made this already too long, and shall confine
+    it to the single subject for the communication of which it was
+    begun. This permit me to recapitulate. The administration of the
+    province is misconducted, and the people oppressed; trade
+    discouraged, and the revenue, though said to be exceeded in the
+    actual collections by many lacs, (for I have a minute account of it,
+    which states the net amount, including jaghires, as something more
+    than fifty-one lacs,) in danger of a rapid decline, from the violent
+    appropriation of its means; the Naib or manager is unfit for his
+    office; a new manager is required, and a system of official
+    control,--in a word, a constitution: for neither can the board
+    extend its superintending powers to a district so remote from its
+    observation, nor has it delegated that authority to the Resident,
+    who is merely the representative of government, and the receiver of
+    its revenue in the last process of it; nor, indeed, would it be
+    possible to render him wholly so, for reasons which I may hereafter
+    detail."
+
+My Lords, you have now heard--not from the Managers, not from records of
+office, not from witnesses at your bar, but from the prisoner
+himself--the state of the country of Benares, from the time that Mr.
+Hastings and his delegated Residents had taken the management of it. My
+Lords, it is a proof, beyond all other proof, of the melancholy state of
+the country, in which, by attempting to exercise usurped and arbitrary
+power, all power and all authority become extinguished, complete anarchy
+takes place, and nothing of government appears but the means of robbing
+and ravaging, with an utter indisposition to take one step for the
+protection of the people.
+
+Think, my Lords, what a triumphal progress it was for a British
+governor, from one extremity of the province to the other, (for so he
+has stated it,) to be pursued by the cries of an oppressed and ruined
+people, where they dared to appear before him,--and when they did not
+dare to appear, flying from every place, even the very magistrates being
+the first to fly! Think, my Lords, that, when these unhappy people saw
+the appearance of a British soldier, they fled as from a pestilence; and
+then think, that these were the people who labored in the manner which
+you have just heard, who dug their own wells, whose country would not
+produce anything but from the indefatigable industry of its inhabitants;
+and that such a meritorious, such an industrious people, should be
+subjected to such a cursed anarchy under pretence of revenue, to such a
+cursed tyranny under the pretence of government!
+
+"But Jagher Deo Seo was unfit for his office."--"How dared you to
+appoint a man unfit for his office?"--"Oh, it signified little, without
+their having a constitution."--"Why did you destroy the official
+constitution that existed before? How dared you to destroy those
+establishments which enabled the people to dig wells and to cultivate
+the country like a garden, and then to leave the whole in the hands of
+your arbitrary and wicked Residents and their instruments, chosen
+without the least idea of government and without the least idea of
+protection?"
+
+God has sometimes converted wickedness into madness; and it is to the
+credit of human reason, that men who are not in some degree mad are
+never capable of being in the highest degree wicked. The human faculties
+and reason are in such cases deranged; and therefore this man has been
+dragged by the just vengeance of Providence to make his own madness the
+discoverer of his own wicked, perfidious, and cursed machinations in
+that devoted country.
+
+Think, my Lords, of what he says respecting the military. He says there
+is no restraining them,--that they pillage the country wherever they go.
+But had not Mr. Hastings himself just before encouraged the military to
+pillage the country? Did he not make the people's resistance, when the
+soldiers attempted to pillage them, one of the crimes of Cheyt Sing? And
+who would dare to obstruct the military in their abominable ravages,
+when they knew that one of the articles of Cheyt Sing's impeachment was
+his having suffered the people of the country, when plundered by these
+wicked soldiers, to return injury for injury and blow for blow? When
+they saw, I say, that these were the things for which Cheyt Sing was
+sacrificed, there was manifestly nothing left for them but
+flight.--What! fly from a Governor-General? You would expect he was
+bearing to the country, upon his balmy and healing wings, the cure of
+all its disorders and of all its distress. No: they knew him too well;
+they knew him to be the destroyer of the country; they knew him to be
+the destroyer of their sovereign, the destroyer of the persons whom he
+had appointed to govern under him; they knew that neither governor,
+sub-governor, nor subject could enjoy a moment's security while he
+possessed supreme power. This was the state of the country; and this the
+Commons of England call upon your Lordships to avenge.
+
+Let us now see what is next done by the prisoner at your bar. He is
+satisfied with simply removing from his office Jagher Deo Seo, who is
+accused by him of all these corruptions and oppressions. The other poor,
+unfortunate man, who was not even accused of malversations in such a
+degree, and against whom not one of the accusations of oppression was
+regularly proved, but who had, in Mr. Hastings's eye, the one
+unpardonable fault of not having been made richer by his crimes, was
+twice imprisoned, and finally perished in prison. But we have never
+heard one word of the imprisonment of Jagher Deo Seo, who, I believe,
+after some mock inquiry, was acquitted.
+
+Here, my Lords, I must beg you to recollect Mr. Hastings's proceeding
+with Gunga Govind Sing, and to contrast his conduct towards these two
+peculators with his proceeding towards Durbege Sing. Such a comparison
+will let your Lordships into the secret of one of the prisoner's motives
+of conduct upon such occasions. When you will find a man pillaging and
+desolating a country, in the manner Jagher Deo Seo is described by Mr.
+Hastings to have done, but who takes care to secure to himself the
+spoil, you will likewise find that such a man is safe, secure,
+unpunished. Your Lordships will recollect the desolation of Dinagepore.
+You will recollect that the rapacious Gunga Govind Sing, (the coadjutor
+of Mr. Hastings in peculation,) out of 80,000_l._ which he had received
+on the Company's account, retained 40,000_l._ for his own use, and that,
+instead of being turned out of his employment and treated with rigor and
+cruelty, he was elevated in Mr. Hastings's grace and favor, and never
+called upon for the restoration of a penny. Observe, my Lords, the
+difference in his treatment of men who have wealth to purchase impunity,
+or who have secrets to reveal, and of another who has no such merit, and
+is poor and insolvent.
+
+We have shown your Lordships the effects of Mr. Hastings's government
+upon the country and its inhabitants; and although I have before
+suggested to you some of its effects upon the army of the Company, I
+will now call your attention to a few other observations on that
+subject. Your Lordships will, in the first place, be pleased to attend
+to the character which he gives of this army. You have heard what he
+tells you of the state of the country in which it was stationed, and of
+the terror which it struck into the inhabitants. The appearance of an
+English soldier was enough to strike the country people with affright
+and dismay: they everywhere, he tells you, fled before them. And yet
+they are the officers of this very army who are brought here as
+witnesses to express the general satisfaction of the people of India. To
+be sure, a man who never calls Englishmen to an account for any robbery
+or injury whatever, who acquits them, upon their good intentions,
+without any inquiry, will in return for this indemnity have their good
+words. We are not surprised to find them coming with emulation to your
+bar to declare him possessed of all virtues, and that nobody has or can
+have a right to complain of him. But we, my Lords, protest against these
+indemnities; we protest against their good words; we protest against
+their testimonials; and we insist upon your Lordships trying him, not
+upon what this or that officer says of his good conduct, but upon the
+proved result of the actions tried before you. Without ascribing,
+perhaps, much guilt to men who must naturally wish to favor the person
+who covers their excesses, who suffers their fortunes to be made, you
+will know what value to set upon their testimony. The Commons look on
+those testimonies with the greatest slight, and they consider as nothing
+all evidence given by persons who are interested in the very
+cause,--persons who derive their fortunes from the ruin of the very
+people of the country, and who have divided the spoils with the man whom
+we accuse. Undoubtedly these officers will give him their good word.
+Undoubtedly the Residents will give him their good word. Mr. Markham,
+and Mr. Benn, and Mr. Fowke, if he had been called, every servant of the
+Company, except some few, will give him the same good word, every one of
+them; because, my Lords, they have made their fortunes under him, and
+their conduct has not been inquired into.
+
+But to return to the observations we were making upon the ruinous
+effects in general of the successive governments which had been
+established at Benares by the prisoner at your bar. These effects, he
+would have you believe, arose from the want of a constitution. Why, I
+again ask, did he destroy the constitution which he found established
+there, or suffer it to be destroyed? But he had actually authorized Mr.
+Markham to make a new, a regular, an official constitution. Did Mr.
+Markham make it? No: though he professed to do it; it never was done:
+and so far from there being any regular, able, efficient constitution,
+you see there was an absolute and complete anarchy in the country. The
+native inhabitants, deprived of their ancient government, were so far
+from looking up to their new masters for protection, that, the moment
+they saw the face of a soldier or of a British person in authority, they
+fled in dismay, and thought it more eligible to abandon their houses to
+robbery than to remain exposed to the tyranny of a British governor. Is
+this what they call British dominion? Will you sanction by your judicial
+authority transactions done in direct defiance of your legislative
+authority? Are they so injuriously mad as to suppose your Lordships can
+be corrupted to betray in your judicial capacity (the most sacred of the
+two) what you have ordained in your legislative character?
+
+My Lords, I am next to remind you what this man has had the insolence
+and audacity to state at your bar. "In fact," says he, "I can adduce
+very many gentlemen now in London to confirm my assertions, that the
+countries of Benares and Gazipore were never within the memory of
+Englishmen so well protected, so peaceably governed, or more
+industriously cultivated than at the present moment."
+
+Your Lordships know that this report of Mr. Hastings which has been read
+was made in the year 1784. Your Lordships know that no step was taken,
+while Mr. Hastings remained in India, for the regulation and management
+of the country. If there was, let it be shown. There was no constitution
+framed, nor any other means taken for the settlement of the country,
+except the appointment of Ajeet Sing in the room of Durbege Sing, to
+reign like him, and like him to be turned out. Mr. Hastings left India
+in February, 1785; he arrived here, as I believe, in June or July
+following. Our proceedings against him commenced in the sessions of
+1786; and this defence was given, I believe, in the year 1787. Yet at
+that time, when he could hardly have received any account from India, he
+was ready, he says, to produce the evidence (and no doubt might have
+done so) of many gentlemen whose depositions would have directly
+contradicted what he had himself deposed of the state in which he, so
+short a time before, had left the country. Your Lordships cannot suppose
+that it could have recovered its prosperity within that time. We know
+you may destroy that in a day which will take up years to build; we know
+a tyrant can in a moment ruin and oppress: but you cannot restore the
+dead to life; you cannot in a moment restore fields to cultivation; you
+cannot, as you please, make the people in a moment restore old or dig
+new wells: and yet Mr. Hastings has dared to say to the Commons that he
+would produce persons to refute the account which we had fresh from
+himself. We will, however, undertake to show you that the direct
+contrary was the fact.
+
+I will first refer you to Mr. Barlow's account of the state of trade.
+Your Lordships will there find a full exposure of the total falsehood of
+the prisoner's assertions. You will find that Mr. Hastings himself had
+been obliged to give orders for the change of almost every one of the
+regulations he had made. Your Lordships may there see the madness and
+folly of tyranny attempting to regulate trade. In the printed Minutes,
+page 2830, your Lordships will see how completely Mr. Hastings had
+ruined the trade of the country. You will find, that, wherever he
+pretended to redress the grievances which he had occasioned, he did not
+take care to have any one part of his pretended redress executed. When
+you consider the anarchy in which he states the country through which he
+passed to have been, you may easily conceive that regulations for the
+protection of trade, without the means of enforcing them, must be
+nugatory.
+
+Mr. Barlow was sent, in the years 1786 and 1787, to examine into the
+state of the country. He has stated the effect of all those regulations,
+which Mr. Hastings has had the assurance to represent here as prodigies
+of wisdom. At the very time when our charge was brought to this House,
+(it is a remarkable period, and we desire your Lordships to advert to
+it,) at that time, I do not know whether it was not on the very same day
+that we brought our charge to your bar, Mr. Duncan was sent by Lord
+Cornwallis to examine into the state of that province. Now, my Lords,
+you have Mr. Duncan's report before you, and you will judge whether or
+not, by any regulation which Mr. Hastings had made, or whether through
+_any_ means used by him, that country had recovered or was recovering.
+Your Lordships will there find other proofs of the audacious falsehood
+of his representation, that all which he had done had operated on the
+minds of the inhabitants very greatly in favor of British integrity and
+good government. Mr. Duncan's report will not only enable you to decide
+upon what he has said himself, it will likewise enable you to judge of
+the credit which is due to the gentlemen now in London whom he can
+produce to confirm his assertions, that the country of Benares and
+Gazipore were never, within the memory of Englishmen, so well protected
+and cultivated as at the present moment.
+
+Instead, therefore, of a speech from me, you shall hear what the country
+says itself, by the report of the last commissioner who was sent to
+examine it by Lord Cornwallis. The perfect credibility of his testimony
+Mr. Hastings has established out of Lord Cornwallis's mouth, who, being
+asked the character of Mr. Jonathan Duncan, has declared that there is
+nothing he can report of the state of the country to which you ought not
+to give credit. Your Lordships will now see how deep the wounds are
+which tyranny and arbitrary power must make in a country where their
+existence is suffered; and you will be pleased to observe that this
+statement was made at a time when Mr. Hastings was amusing us with _his_
+account of Benares.
+
+
+    _Extract of the Proceedings of the Resident at Benares, under date
+    the 16th February, 1788, at the Purgunnah of Gurrah Dehmah, &c.
+    Printed Minutes, page 2610._
+
+    "The Resident, having arrived in this purgunnah of Gurrah Dehmah
+    from that of Mohammedabad, is very sorry to observe that it seems
+    about one third at least uncultivated, owing to the mismanagement of
+    the few last years. The Rajah, however, promises that it shall be by
+    next year in a complete state of cultivation; and Tobarck Hossaine,
+    his aumeen, aumil, or agent, professes his confidence of the same
+    happy effects, saying, that he has already brought a great
+    proportion of the land, that lay fallow when he came into the
+    purgunnah in the beginning of the year, into cultivation, and that,
+    it being equally the Rajah's directions and his own wish, he does
+    not doubt of being successful in regard to the remaining part of
+    the waste land."
+
+
+    _Report, dated the 18th of February, at the Purgunnah of Bulleah._
+
+    "The Resident, having come yesterday into this purgunnah from that
+    of Gurrah Dehmah, finds its appearance much superior to that
+    purgunnah in point of cultivation; yet it is on the decline so for
+    that its collectible jumma will not be so much this year as it was
+    last, notwithstanding all the efforts of Reazel Husn, the agent of
+    Khulb Ali Khan, who has farmed this purgunnah upon a three years'
+    lease, (of which the present is the last,) during which his, that
+    is, the head farmer's, management cannot be applauded, as the funds
+    of the purgunnah are very considerably declined in his hands:
+    indeed, Reazel Husn declares that this year there was little or no
+    _khereef_, or first harvest, in the purgunnah, and that it has been
+    merely by the greatest exertions that he has prevailed on the ryots
+    to cultivate the _rubby_ crop, which is now on the ground and seems
+    plentiful."
+
+
+    _Report, dated the 20th of February, at the Purgunnah of Khereed._
+
+    "The Resident, having this day come into the purgunnah of Khereed,
+    finds that part of it laying between the frontiers of Bulleah, the
+    present station, and Bansdeah, (which is one of the _tuppahs_, or
+    subdivisions, of Khereed,) exceedingly wasted and uncultivated. The
+    said tuppah is sub-farmed by Gobind Ram from Kulub Ali Bey, and
+    Gobind Ram has again under-rented it to the zemindars."
+
+
+
+    _Report, dated the 23d February, at the Purgunnah of Sekunderpoor._
+
+    "The Resident is set out for Sekunderpoor, and is sorry to observe,
+    that, for about six or seven coss that he had further to pass
+    through the purgunnah of Kereebs, the whole appeared one continued
+    waste, as far as the eye could reach, on both sides of the road. The
+    purgunnah Sekunderpoor, beginning about a coss before he reached the
+    village, an old fort of that name, appeared to a little more
+    advantage; but even here the crops seem very scanty, and the ground
+    more than half fallow."
+
+
+    _Extract of the Proceedings of the Resident at Benares, under date
+    the 26th February, at the Purgunnah of Sekunderpoor._
+
+    "The Resident now leaves Sekunderpoor to proceed to Nurgurah, the
+    head cutchery of the purgunnah. He is sorry to observe, that, during
+    the whole way between these two places, which are at the distance of
+    six coss, or twelve miles, from each other, not above twenty fields
+    of cultivated ground are to be seen; all the rest being, as far as
+    the eye can reach, except just in the vicinity of Nuggeha, one
+    general waste of long grass, with here and there some straggling
+    jungly trees. This falling off in the cultivation is said to have
+    happened in the course of but a few years,--that is, since the late
+    Rajah's expulsion."
+
+Your Lordships will observe, the date of the ruin of this country is the
+expulsion of Cheyt Sing.
+
+
+    _Extract of the Proceedings of the Resident at Benares, under date
+    the 27th February, at the Purgunnah Sekunderpoor._
+
+    "The Resident meant to have proceeded from this place to Cossimabad;
+    but understanding that the village of Ressenda, the capital of the
+    purgunnah of Susknesser, is situated at three coss' distance, and
+    that many _rahdarry_ collections are there exacted, the zemindars
+    and ryots being, it seems, all one body of Rajpoots, who affect to
+    hold themselves in some sort independent of the Rajah's government,
+    paying only a _mokurrery_, or fixed jumma, (which it may be supposed
+    is not overrated,) and managing their interior concerns as they
+    think fit, the Resident thought it proper on this report to deviate
+    a little from his intended route, by proceeding this day to
+    Ressenda, where he accordingly arrived in the afternoon; and the
+    remaining part of the country near the road through Sekunderpoor,
+    from Nuggurha to Seundah, appearing nearly equally waste with the
+    former part, as already noticed in the proceedings of the 26th
+    instant.
+
+    "The Rajah is therefore desired to appoint a person to bring those
+    waste lands into cultivation, in like manner as he has done in
+    Khereed, with this difference or addition in his instructions,--that
+    he subjoin in those to the Aband Kar, or manager, of the
+    re-cultivation of Sekunderpoor, the rates at which he is authorized
+    to grant pottahs for the various kinds of land; and it is
+    recommended to him to make these rates even somewhat lower than he
+    may himself think strictly conformable to justice, reporting the
+    particulars to the Resident.
+
+    "The Rajah is also desired to prepare and transmit a table of
+    similar rates to the Aband Kar of purgunnah Khereed.
+
+        (Signed)    "JON^N DUNCAN, _Resident_.
+        "BENARES, the 12th September, 1788."
+
+Here your Lordships find, in spite of Mr. Hastings himself, in spite of
+all the testimonies which he has called, and of all the other
+testimonies which he would have called, that his own account of the
+matter is confirmed against his own pretended evidence; you find his own
+written account confirmed in a manner not to be doubted: and the only
+difference between his account and this is, that the people did not fly
+from Mr. Duncan, when he approached, as they fled from Mr. Hastings.
+They did not feel any of that terror at the approach of a person from
+the beneficent government of Lord Cornwallis with which they had been
+entirely filled at the appearance of the prisoner at your bar. From him
+they fled in dismay. They fled from his very presence, as from a
+consuming pestilence, as from something far worse than drought and
+famine; they fled from him as a cruel, corrupt, and arbitrary governor,
+which is worse than any other evil that ever afflicted mankind.
+
+You see, my Lords, in what manner the country has been wasted and
+destroyed; and you have seen, by the date of these measures, that they
+have happened within a few years, namely, since the expulsion of Rajah
+Cheyt Sing. There begins the era of calamity. Ask yourselves, then,
+whether you will or can countenance the acts which led directly and
+necessarily to such consequences. Your Lordships will mark what it is to
+oppress and expel a cherished individual from his government, and
+finally to subvert it. Nothing stands after him; down go all order and
+authority with him; ruin and desolation fall upon the country; the
+fields are uncultivated, the wells are dried up. The people, says Mr.
+Duncan, promised, indeed, some time or other, under some other
+government, to do something. They will again cultivate the lands, when
+they can get an assurance of security. My Lords, judge, I pray you,
+whether the House of Commons, when they had read the account which Mr.
+Hastings has himself given of the dreadful consequences of his
+proceedings, when they had read the account given by Mr. Duncan of an
+uncultivated country as far as the eye could reach, would not have shown
+themselves unworthy to represent not only the Commons of Great Britain,
+but the meanest village in it, if they had not brought this great
+criminal before you, and called upon your Lordships to punish him. This
+ruined country, its desolate fields and its undone inhabitants, all call
+aloud for British justice, all call for vengeance upon the head of this
+execrable criminal.
+
+Oh! but we ought to be tender towards his personal character,--extremely
+cautious in our speech; we ought not to let indignation loose.--My
+Lords, we do let our indignation loose; we cannot bear with patience
+this affliction of mankind. We will neither abate our energy, relax in
+our feelings, nor in the expressions which those feelings dictate.
+Nothing but corruption like his own could enable any man to see such a
+scene of desolation and ruin unmoved. We feel pity for the works of God
+and man; we feel horror for the debasement of human nature; and feeling
+thus, we give a loose to our indignation, and call upon your Lordships
+for justice.
+
+Strange as it may appear to your Lordships, there remains to be stated
+an aggravation of his crimes, and of his victims' misery. Would you
+consider it possible, my Lords, that there could be an aggravation of
+such a case as you have heard? Would you think it possible for a people
+to suffer more than the inhabitants of Benares have suffered, from the
+noble possessor of the splendid mansion down to the miserable tenants of
+the cottage and the hut? Yes, there is a state of misery, a state of
+degradation, far below all that you have yet heard. It is, my Lords,
+that these miserable people should come to your Lordships' bar, and
+declare that they have never felt one of those grievances of which they
+complain; that not one of those petitions with which they pursued Mr.
+Hastings had a word of truth in it; that they felt nothing under his
+government but ease, tranquillity, joy, and happiness; that every day
+during his government was a festival, and every night an illumination
+and rejoicing. The addresses which contain these expressions of
+satisfaction have been produced at your bar, and have been read to your
+Lordships. You must have heard with disgust, at least, these flowers of
+Oriental rhetoric, penned at ease by dirty hireling moonshees at
+Calcutta, who make these people put their seals, not to declarations of
+their ruin, but to expressions of their satisfaction. You have heard
+what he himself says of the country; you have heard what Mr. Duncan says
+of it; you have heard the cries of the country itself calling for
+justice upon him: and now, my Lords, hear what he has made these people
+say. "We have heard that the gentlemen in England are displeased with
+Mr. Hastings, on suspicion that he oppressed us, the inhabitants of
+this place, took our money by deceit and force, and ruined the country."
+They then declare solemnly before God, according to their different
+religions, that Mr. Hastings "distributed protection and security to
+religion, and kindness and peace to all. He is free," say they, "from
+the charge of embezzlement and fraud, and his heart is void of
+covetousness and avidity. During the period of his government no one
+ever experienced from him other than protection and justice, never
+having felt hardships from him; nor did the poor ever know the weight of
+an oppressive hand from him. Our characters and reputation have been
+always guarded in quiet from attack, by the vigilance of his prudence
+and foresight, and by the terror of his justice."
+
+Upon my word, my Lords, the paragraphs are delightful. Observe, in this
+translation from the Persian there is all the fluency of an English
+paragraph well preserved. All I can say is, that these people of Benares
+feel their joy, comfort, and satisfaction in swearing to the falseness
+of Mr. Hastings's representation against himself. In spite of his own
+testimony, they say, "He secured happiness and joy to us; he
+reestablished the foundation of justice; and we at all times, during his
+government, lived in comfort and passed our days in peace." The shame of
+England and of the English government is here put upon your Lordships'
+records. Here you have, just following that afflicting report of Mr.
+Duncan's, and that account of Mr. Hastings himself, in which he said the
+inhabitants fled before his face, the addresses of these miserable
+people. He dares to impose upon your eyesight, upon your common sense,
+upon the plain faculties of mankind. He dares, in contradiction to all
+his own assertions, to make these people come forward and swear that
+they have enjoyed nothing but complete satisfaction and pleasure during
+the whole time of his government.
+
+My Lords, I have done with this business, for I have now reached the
+climax of degradation and suffering, after moving step by step through
+the several stages of tyranny and oppression. I have done with it, and
+have only to ask, In what country do we live, where such a scene can by
+any possibility be offered to the public eye?
+
+Let us here, my Lords, make a pause.--You have seen what Benares was
+under its native government. You have seen the condition in which it was
+left by Cheyt Sing, and you have seen the state in which Mr. Hastings
+left it. The rankling wounds which he has inflicted upon the country,
+and the degradation to which the inhabitants have been subjected, have
+been shown to your Lordships. You have now to consider whether or not
+you will fortify with your sanction any of the detestable principles
+upon which the prisoner justifies his enormities.
+
+My Lords, we shall next come to another dependent province, when I shall
+illustrate to your Lordships still further the effects of Mr. Hastings's
+principles. I allude to the province of Oude,--a country which, before
+our acquaintance with it, was in the same happy and flourishing
+condition with Benares, and which dates its period of decline and misery
+from the time of our intermeddling with it. The Nabob of Oude was
+reduced, as Cheyt Sing was, to be a dependant on the Company, and to be
+a greater dependant than Cheyt Sing, because it was reserved in Cheyt
+Sing's agreement that we should not interfere in his government. We
+interfered in every part of the Nabob's government; we reduced his
+authority to nothing; we introduced a perfect scene of anarchy and
+confusion into the country, where there was no authority but to rob and
+destroy.
+
+I have not strength at present to proceed; but I hope I shall soon be
+enabled to do so. Your Lordships cannot, I am sure, calculate from your
+own youth and strength; for I have done the best I can, and find myself
+incapable just at this moment of going any further.
+
+
+
+
+SPEECH
+
+IN
+
+GENERAL REPLY.
+
+FOURTH DAY: THURSDAY, JUNE 5, 1794.
+
+
+My Lords,--When I last had the honor of addressing your Lordships from
+this place, my want of strength obliged me to conclude where the
+patience of a people and the prosperity of a country subjected by solemn
+treaties to British government had concluded. We have left behind us the
+inhabitants of Benares, after having seen them driven into rebellion by
+tyranny and oppression, and their country desolated by our misrule. Your
+Lordships, I am sure, have had the map of India before you, and know
+that the country so destroyed and so desolated was about one fifth of
+the size of England and Wales in geographical extent, and equal in
+population to about a fourth. Upon this scale you will judge of the
+mischief which has been done.
+
+My Lords, we are now come to another devoted province: we march from
+desolation to desolation; because we follow the steps of Warren
+Hastings, Esquire, Governor-General of Bengal. You will here find the
+range of his atrocities widely extended; but before I enter into a
+detail of them, I have one reflection to make, which I beseech your
+Lordships to bear in mind throughout the whole of this deliberation. It
+is this: you ought never to conclude that a man must necessarily be
+innoxious because he is in other respects insignificant. You will see
+that a man bred in obscure, vulgar, and ignoble occupations, and trained
+in sordid, base, and mercenary habits, is not incapable of doing
+extensive mischief, because he is little, and because his vices are of a
+mean nature. My Lords, we have shown to you already, and we shall
+demonstrate to you more clearly in future, that such minds placed in
+authority can do more mischief to a country, can treat all ranks and
+distinctions with more pride, insolence, and arrogance, than those who
+have been born under canopies of state and swaddled in purple: you will
+see that they can waste a country more effectually than the proudest and
+most mighty conquerors, who, by the greatness of their military talents,
+have first subdued and afterwards plundered nations.
+
+The prisoner's counsel have thought proper to entertain your Lordships,
+and to defend their client, by comparing him with the men who are said
+to have erected a pyramid of ninety thousand human heads. Now look back,
+my Lords, to Benares; consider the extent of country laid waste and
+desolated, and its immense population; and then see whether famine may
+not destroy as well as the sword, and whether this man is not as well
+entitled to erect his pyramid of ninety thousand heads as any terrific
+tyrant of the East. We follow him now to another theatre, the
+territories of the Nabob of Oude.
+
+My Lords, Oude, (together with the additions made to it by Sujah
+Dowlah,) in point of geographical extent, is about the size of England.
+Sujah Dowlah, who possessed this country as Nabob, was a prince of a
+haughty character,--ferocious in a high degree towards his enemies, and
+towards all those who resisted his will. He was magnificent in his
+expenses, yet economical with regard to his resources,--maintaining his
+court in a pomp and splendor which is perhaps unknown to the sovereigns
+of Europe. At the same time he was such an economist, that from an
+inconsiderable revenue, at the beginning of his reign, he was annually
+enabled to make great savings. He thus preserved, towards the end of it,
+his people in peace, tranquillity, and order; and though he was an
+arbitrary prince, he never strained his revenue to such a degree as to
+lose their affections while he filled his exchequer. Such appears to
+have been the true character of Sujah Dowlah: your Lordships have heard
+what is the character which the prisoner at your bar and his counsel
+have thought proper to give you of him.
+
+Surely, my Lords, the situation of the great, as well as of the lower
+ranks in that country, must be a subject of melancholy reflection to
+every man. Your Lordships' compassion will, I presume, lead you to feel
+for the lowest; and I hope that your sympathetic dignity will make you
+consider in what manner the princes of this country are treated. They
+have not only been treated at your Lordships' bar with indignity by the
+prisoner, but his counsel do not leave their ancestors to rest quietly
+in their graves. They have slandered their families, and have gone into
+scandalous history that has no foundation in facts whatever.
+
+Your Lordships have seen how he attempted to slander the ancestors of
+Cheyt Sing, to deny that they were zemindars; and yet he must have known
+from printed books, taken from the Company's records, the utter falsity
+of his declaration. You need only look into Mr. Verelst's Appendix, and
+there you will see that that country has always been called the
+Zemindary of Bulwant Sing. You will find him always called the Zemindar;
+it was the known, acknowledged name, till this gentleman thought proper
+at the bar of the House of Commons to deny that he was a zemindar, and
+to assert that he was only an aumil. He slanders the pedigree of this
+man as mean and base, yet he was not ashamed to take from him
+twenty-three thousand pounds. In like manner he takes from Asoph ul
+Dowlah a hundred thousand pounds, which he would have appropriated to
+himself, and then directs his counsel to rake up the slander of Dow's
+History, a book of no authority, a book that no man values in any
+respect or degree. In this book they find that romantic, absurd, and
+ridiculous story upon which an honorable fellow Manager of mine, who is
+much more capable than I am of doing justice to the subject, has
+commented with his usual ability: I allude to that story of spitting on
+the beard,--the mutual compact to poison one another. That Arabian tale,
+fit only to form a ridiculous tragedy, has been gravely mentioned to
+your Lordships for the purpose of slandering the pedigree of this Vizier
+of Oude, and making him vile in your Lordships' eyes. My honorable
+friend has exposed to you the absurdity of these stories, but he has not
+shown you the malice of their propagators. The prisoner and his counsel
+have referred to Dow's History, who calls this Nabob "the more infamous
+son of an infamous Persian peddler." They wish that your Lordships
+should consider him as a person vilely born, ignominiously educated, and
+practising a mean trade, in order that, when it shall be proved that he
+and his family were treated with every kind of indignity and contempt by
+the prisoner at your bar, the sympathy of mankind should be weakened.
+Consider, my Lords, the monstrous perfidy and ingratitude of this man,
+who, after receiving great favors from the Nabob, is not satisfied with
+oppressing his offspring, but goes back to his ancestors, tears them out
+of their graves, and vilifies them with slanderous aspersions. My Lords,
+the ancestor of Sujah Dowlah was a great prince,--certainly a
+subordinate prince, because he was a servant of the Great Mogul, who was
+well called King of Kings, for he had in his service persons of high
+degree. He was born in Persia; but was not, as is falsely said, _the
+more infamous son of an infamous Persian peddler_. Your Lordships are
+not unacquainted with the state and history of India; you therefore know
+that Persia has been the nursery of all the Mahometan nobility of India:
+almost everything in that country which is not of Gentoo origin is of
+Persian; so much so, that the Persian language is the language of the
+court, and of every office from the highest to the lowest. Among these
+noble Persians, the family of the Nabob stands in the highest degree.
+His father's ancestors were of noble descent, and those of his mother,
+Munny Begum, more eminently and more illustriously so. This
+distinguished family, on no better authority than that of the historian
+Dow, has been slandered by the prisoner at your bar, in order to destroy
+the character of those whom he had already robbed of their substance.
+Your Lordships will have observed with disgust how the Dows and the
+Hastings, and the whole of that tribe, treat their superiors,--in what
+insolent language they speak of them, and with what pride and indignity
+they trample upon the first names and the first characters in that
+devoted country.
+
+But supposing it perfectly true that this man was "the more infamous son
+of an infamous Persian peddler," he had risen to be the secondary
+sovereign of that country. He had a revenue of three millions six
+hundred thousand pounds sterling: a vast and immense revenue; equal,
+perhaps, to the clear revenue of the King of England. He maintained an
+army of one hundred and twenty thousand men. He had a splendid court;
+and his country was prosperous and happy. Such was the situation of
+Sujah Dowlah, the Nabob of Oude, and such the condition of Oude under
+his government. With his pedigree, I believe, your Lordships will think
+we have nothing to do in the cause now before us. It has been pressed
+upon us; and this marks the indecency, the rancor, the insolence, the
+pride and tyranny which the Dows and the Hastings, and the people of
+that class and character, are in the habit of exercising over the great
+in India.
+
+My Lords, I shall be saved a great deal of trouble in proving to you the
+flourishing state of Oude, because the prisoner admits it as largely as
+I could wish to state it; and what is more, he admits, too, the truth of
+our statement of the condition to which it is now reduced,--but I shall
+not let him off so easily upon this point. He admits, too, that it was
+left in this reduced and ruined state at the close of his
+administration. In his Defence he attributes the whole mischief
+generally to a faulty system of government. My Lords, systems never make
+mankind happy or unhappy, any further than as they give occasions for
+wicked men to exercise their own abominable talents, subservient to
+their own more abominable dispositions. "The system," says Mr. Hastings,
+"was bad; but I was not the maker of it." Your Lordships have seen him
+apply this mode of reasoning to Benares, and you will now see that he
+applies it to Oude. "I came," says he, "into a bad system; that system
+was not of my making, but I was obliged to act according to the spirit
+of it."
+
+Now every honest man would say,--"I came to a bad system: I had every
+facility of abusing my power, I had every temptation to peculate, I had
+every incitement to oppress, I had every means of concealment, by the
+defects of the system; but I corrected that evil system by the goodness
+of my administration, by the prudence, the energy, the virtue of my
+conduct." This is what all the rest of the world would say: but what
+says Mr. Hastings? "A bad system was made to my hands; I had nothing to
+do in making it. I was altogether an involuntary instrument, and obliged
+to execute every evil which that system contained." This is the line of
+conduct your Lordships are called to decide upon. And I must here again
+remind you that we are at an issue of law. Mr. Hastings has avowed a
+certain set of principles upon which he acts; and your Lordships are
+therefore to judge whether his acts are justifiable because he found an
+evil system to act upon, or whether he and all governors upon earth have
+not a general good system upon which they ought to act.
+
+The prisoner tells you, my Lords, that it was in consequence of this
+evil system, that the Nabob, from being a powerful prince, became
+reduced to a wretched dependant on the Company, and subject to all the
+evils of that degraded state,--subject to extortion, to indignity, to
+oppression. All these your Lordships are called upon to sanction; and
+because they may be connected with an existing system, you are to
+declare them to be an allowable part of a code for the government of
+British India.
+
+In the year 1775, that powerful, magnificent, and illustrious prince,
+Sujah Dowlah, died in possession of the country of Oude. He had long
+governed a happy and contented people, and, if we except the portion of
+tyranny which we admit he really did exercise towards some few
+individuals who resisted his power, he was a wise and beneficent
+governor. This prince died in the midst of his power and fortune,
+leaving somewhere about fourscore children. Your Lordships know that the
+princes of the East have a great number of wives; and we know that these
+women, though reputed of a secondary rank, are yet of a very high
+degree, and honorably maintained according to the customs of the East.
+Sujah Dowlah had but one lawful wife: he had by her but one lawful
+child, Asoph ul Dowlah. He had about twenty-one male children, the
+eldest of whom was a person whom you have heard of very often in these
+proceedings, called Saadut Ali. Asoph ul Dowlah, being the sole
+legitimate son, had all the pretensions to succeed his father, as
+Subahdar of Oude, which could belong to any person under the Mogul
+government.
+
+Your Lordships will distinguish between a Zemindar, who is a perpetual
+landholder, the hereditary proprietor of an estate, and a Subahdar, who
+derives from his master's will and pleasure all his employments, and
+who, instead of having the jaghiredars subject to his supposed arbitrary
+will, is himself a subject, and must have his sovereign's patent for
+his place. Therefore, strictly and properly speaking, there is no
+succession in the office of Subahdar. At this time the Company, who
+alone could obtain the _sunnuds_ [_sunnud?_], or patent, from the Great
+Mogul, upon account of the power they possessed in India, thought, and
+thought rightly, that with an officer who had no hereditary power there
+could be no hereditary engagements,--and that in their treaty with Asoph
+ul Dowlah, for whom they had procured the sunnud from the Great Mogul,
+they were at liberty to propose their own terms, which, if honorable and
+mutually advantageous to the new Subahdar and to the Company, they had a
+right to insist upon. A treaty was therefore concluded between the
+Company and Asoph ul Dowlah, in which the latter stipulated to pay a
+fixed subsidy for the maintenance of a certain number of troops, by
+which the Company's finances were greatly relieved and their military
+strength greatly increased.
+
+This treaty did not contain one word which could justify any
+interference in the Nabob's government. That evil system, as Mr.
+Hastings calls it, is not even mentioned or alluded to; nor is there, I
+again say, one word which authorized Warren Hastings, or any other
+person whatever, to interfere in the interior affairs of his country. He
+was legally constituted Viceroy of Oude; his dignity of Vizier of the
+Empire, with all the power which that office gave him, derived from and
+held under the Mogul government, he legally possessed; and this evil
+system, which Mr. Hastings says led him to commit the enormities of
+which you shall hear by-and-by, was neither more nor less than what I
+have now stated.
+
+But, my Lords, the prisoner thinks, that, when, under any pretence, any
+sort of means could be furnished of interfering in the government of the
+country, he has a right to avail himself of them, to use them at his
+pleasure, and to govern by his own arbitrary will. The Vizier, he says,
+by this treaty was reduced to a state of vassalage; and he makes this
+curious distinction in proof of it. It was, he says, an optional
+vassalage: for, if he chose to get rid of our troops, he might do so and
+be free; if he had not a mind to do that, and found a benefit in it,
+then he was a vassal. But there is nothing less true. Here is a person
+who keeps a subsidiary body of your troops, which he is to pay for you;
+and in consequence of this Mr. Hastings maintains that he becomes a
+vassal. I shall not dispute whether vassalage is optional or by force,
+or in what way Mr. Hastings considered this prince as a vassal of the
+Company. Let it be as he pleased. I only think it necessary that your
+Lordships should truly know the actual state of that country, and the
+ground upon which Mr. Hastings stood. Your Lordships will find it a
+fairy land, in which there is a perpetual masquerade, where no one thing
+appears as it really is,--where the person who seems to have the
+authority is a slave, while the person who seems to be the slave has the
+authority. In that ambiguous government everything favors fraud,
+everything favors peculation, everything favors violence, everything
+favors concealment. You will therefore permit me to show to you what
+were the principles upon which Mr. Hastings appears, according to the
+evidence before you, to have acted,--what the state of the country was,
+according to his conceptions of it; and then you will see how he applied
+those principles to that state.
+
+"The means by which our government acquired this influence," says Mr.
+Hastings, "and its right to exercise it, will require a previous
+explanation." He then proceeds,--"With his death [Sujah Dowlah's] a new
+political system commenced, and Mr. Bristow was constituted the
+instrument of its formation, and the trustee for the management of it.
+The Nabob Asoph ul Dowlah was deprived of a large part of his
+inheritance,--I mean the province of Benares, attached by a very feeble
+and precarious tenure to our dominions; the army fixed to a permanent
+station in a remote line of his frontier, with an augmented and
+perpetual subsidy; a new army, amphibiously composed of troops in his
+service and pay, commanded by English officers of our own nomination,
+for the defence of his new conquests; and his own natural troops
+annihilated, or alienated by the insufficiency of his revenue for all
+his disbursements, and the prior claims of those which our authority or
+influence commanded: in a word, he became a vassal of the government;
+but he still possessed an ostensible sovereignty. His titular rank of
+Vizier of the Empire rendered him a conspicuous object of view to all
+the states and chiefs of India; and on the moderation and justice with
+which the British government in Bengal exercised its influence over him
+many points most essential to its political strength and to the honor of
+the British name depended."
+
+Your Lordships see that the system which is supposed to have reduced him
+to vassalage did not make, as he contends, a violent exercise of our
+power necessary or proper; but possessing, as the Nabob did, that high
+nominal dignity, and being in that state of vassalage, as Mr. Hastings
+thought proper to term it, though there is no vassalage mentioned in
+the treaty,--being, I say, in that situation of honor, credit, and
+character, sovereign of a country as large as England, yielding an
+immense revenue, and flourishing in trade, certainly our honor depended
+upon the use we made of that influence which our power gave us over him;
+and we therefore press it upon your Lordships, that the conduct of Mr.
+Hastings was such as dishonored this nation.
+
+He proceeds,--"This is not a place, nor have I room in it, to prove,
+what I shall here content myself with affirming, that, by a sacred and
+undeviating observance of every principle of public faith, the British
+dominion might have by this time acquired the means of its extension,
+through a virtual submission to its authority, to every region of
+Hindostan and Deccan. I am not sure that I should advise such a design,
+were it practicable, which at this time it certainly is not; and I very
+much fear that the limited formation of such equal alliances as might be
+useful to our present condition, and conduce to its improvement, is
+become liable to almost insurmountable difficulties: every power in
+India must wish for the support of ours, but they all dread the
+connection. The subjection of Bengal, and the deprivation of the family
+of Jaffier Ali Khan, though an effect of inevitable necessity, the
+present usurpations of the rights of the Nabob Wallau Jau in the
+Carnatic, and the licentious violations of the treaty existing between
+the Company and the Nabob Nizam ul Dowlah, though checked by the
+remedial interposition of this government, stand as terrible precedents
+against us; the effects of our connection with the Nabob Asoph ul Dowlah
+had a rapid tendency to the same consequences, and it has been my
+invariable study to prevent it."
+
+Your Lordships will remember that the counsel at the bar have said that
+they undertook the defence of Warren Hastings, not in order to defend
+him, but to rescue the British character from the imputations which have
+been laid upon it by the Commons of Great Britain. They have said that
+the Commons of Great Britain have slandered their country, and have
+misrepresented its character; while, on the contrary, the servants of
+the Company have sustained and maintained the dignity of the English
+character, have kept its public faith inviolate, preserved the people
+from oppression, reconciled every government to it in India, and have
+made every person under it prosperous and happy.
+
+My Lords, you see what this man says himself, when endeavoring to prove
+his own innocence. Instead of proving it by the facts alleged by his
+counsel, he declares that by preserving good faith you might have
+conquered India, the most glorious conquest that was ever made in the
+world; that all the people want our assistance, but dread our
+connection. Why? Because our whole conduct has been one perpetual tissue
+of perfidy and breach of faith with every person who has been in
+alliance with us, in any mode whatever. Here is the man himself who says
+it. Can we bear that this man should now stand up in this place as the
+assertor of the honor of the British nation against us, who charge this
+dishonor to have fallen upon us by him, through him, and during his
+government?
+
+But all the mischief, he goes on to assert, was in the previous system,
+in the formation of which he had no share,--the system of 1775, when
+the first treaty with the Nabob was made. "That system," says he, "is
+not mine; it was made by General Clavering, Colonel Monson, and Mr.
+Francis." So it was, my Lords. It did them very great honor, and I
+believe it ever will do them honor, in the eyes of the British nation,
+that they took an opportunity, without the violation of faith, without
+the breach of any one treaty, and without injury to any person, to do
+great and eminent services to the Company. But Mr. Hastings disclaims
+it, unnecessarily disclaims it, for no one charges him with it. What we
+charge him with is the abuse of that system. To one of these abuses I
+will now call your Lordships' attention. Finding, soon after his
+appointment to the office of Governor-General, that the Nabob was likely
+to get into debt, he turns him into a vassal, and resolves to treat him
+as such. You will observe that this is not the only instance in which,
+upon a failure of payment, the defaulter becomes directly a vassal. You
+remember how Durbege Sing, the moment he fell into an arrear of tribute,
+became a vassal, and was thrown into prison, without any inquiry into
+the causes which occasioned that arrear. With respect to the Nabob of
+Oude, we assert, and can prove, that his revenue was 3,600,000_l._ at
+the day of his father's death; and if the revenue fell off afterwards,
+there was abundant reason to believe that he possessed in abundance the
+means of paying the Company every farthing.
+
+Before I quit this subject, your Lordships will again permit me to
+reprobate the malicious insinuations by which Mr. Hastings has thought
+proper to slander the virtuous persons who are the authors of that
+system which he complains of. They are men whose characters this country
+will ever respect, honor, and revere, both the living and the dead,--the
+dead for the living, and the living for the dead. They will altogether
+be revered for a conduct honorable and glorious to Great Britain, whilst
+their names stand as they now do, unspotted by the least imputation of
+oppression, breach of faith, perjury, bribery, or any other fraud
+whatever. I know there was a faction formed against them upon that very
+account. Be corrupt, you have friends; stem the torrent of corruption,
+you open a thousand venal mouths against you. Men resolved to do their
+duty must be content to suffer such opprobrium, and I am content; in the
+name of the living and of the dead, and in the name of the Commons, I
+glory in our having appointed some good servants at least to India.
+
+But to proceed. "This system was not," says he, "of my making." You
+would, then, naturally imagine that the persons who made this abominable
+system had also made some tyrannous use of it. Let us see what use they
+made of it during the time of their majority in the Council. There was
+an arrear of subsidy due from the Nabob. How it came into arrear we
+shall consider hereafter. The Nabob proposed to pay it by taxing the
+jaghires of his family, and taking some money from the Begum. This was
+consented to by Mr. Bristow, at that time Resident for the Company in
+Oude; and to this arrangement Asoph ul Dowlah and his advisers lent a
+willing ear. What did Mr. Hastings then say of this transaction? He
+called it a violent assumption of power on the part of the Council. He
+did not, you see, then allow that a bad system justified any persons
+whatever in an abuse of it. He contended that it was a violent attack
+upon the rights and property of the parties from whom the money was to
+be taken, that it had no ground or foundation in justice whatever, and
+that it was contrary to every principle of right and equity.
+
+Your Lordships will please to bear in mind, that afterwards, by his own
+consent, and the consent of the rest of the Council, this business was
+compromised between the son, the mother, and their relations. A very
+great sum of money, which was most useful to the Company at that period,
+was raised by a family compact and arrangement among themselves. This
+proceeding was sanctioned by the Company, Mr. Hastings himself
+consenting; and a pledge was given to the Begums and family of the
+Nabob, that this should be the last demand made upon them,--that it
+should be considered, not as taken compulsively, but as a friendly and
+amicable donation. They never admitted, nor did the Nabob ever contend,
+that he had any right at all to take this money from them. At that time
+it was not Mr. Hastings's opinion that the badness of the system would
+justify any violence as a consequence of it; and when the advancement of
+the money was agreed to between the parties, as a family and amicable
+compact, he was as ready as anybody to propose and sanction a regular
+treaty between the parties, that all claims on one side and all kind of
+uneasiness on the other should cease forever, under the guardianship of
+British faith.
+
+Mr. Hastings, as your Lordships remember, has conceded that British
+faith is the support of the British empire; that, if that empire is to
+be maintained, it is to be maintained by good faith; that, if it is to
+be propagated, it is to be propagated by public faith; and that, if the
+British empire falls, it will be through perfidy and violence. These are
+the principles which he assumes, when he chooses to reproach others. But
+when he has to defend his own perfidy and breaches of faith, then, as
+your Lordships will find set forth in his defence before the House of
+Commons on the Benares charge, he denies, or at least questions, the
+validity of any treaty that can at present be made with India. He
+declares that he considers all treaties as being weakened by a
+considerable degree of doubt respecting their validity and their binding
+force, in such a state of things as exists in India.
+
+Whatever was done, during that period of time to which I have alluded,
+by the majority of the Council, Mr. Hastings considered himself as
+having nothing to do with, on the plea of his being a dissentient
+member: a principle which, like other principles, I shall take some
+notice of by-and-by. Colonel Monson and General Clavering died soon
+after, and Mr. Hastings obtained a majority in the Council, and was
+then, as he calls it, restored to his authority; so that any evil that
+could be done by evil men under that evil system could have lasted but
+for a very short time indeed. From that moment, Mr. Hastings, in my
+opinion, became responsible for every act done in Council, while he was
+there, which he did not resist, and for every engagement which he did
+not oppose. For your Lordships will not bear that miserable jargon which
+you have heard, shameful to office and to official authority, that a
+man, when, he happens not to find himself in a majority upon any
+measure, may think himself excusable for the total neglect of his duty;
+that in such a situation he is not bound to propose anything that it
+might be proper to propose, or to resist anything that it might be
+proper to resist. What would be the inference from such an assumption?
+That he can never act in a commission; that, unless a man has the
+supreme power, he is not responsible for anything he does or neglects to
+do. This is another principle which your Lordships will see constantly
+asserted and constantly referred to by Mr. Hastings. Now I do contend,
+that, notwithstanding his having been in a minority, if there was
+anything to be done that could prevent oppressive consequences, he was
+bound to do that thing; and that he was bound to propose every possible
+remedial measure. This proud, rebellious proposition against the law,
+that any one individual in the Council may say that he is responsible
+for nothing, because he is not the whole Council, calls for your
+Lordships' strongest reprobation.
+
+I must now beg leave to observe to you, that the treaty was made (and I
+wish your Lordships to advert to dates) in the year 1775; Mr. Hastings
+acquired the majority in something more than a year afterwards; and
+therefore, supposing the acts of the former majority to have been ever
+so iniquitous, their power lasted but a short time. From the year 1776
+to 1784 Mr. Hastings had the whole government of Oude in himself, by
+having the majority in the Council. My Lords, it is no offence that a
+Governor-General, or anybody else, has the majority in the Council. To
+have the government in himself is no offence. Neither was it any
+offence, if you please, that the Nabob was virtually a vassal to the
+Company, as he contends he was. For the question is not, what a
+Governor-General _may_ do, but what Warren Hastings did do. He who has a
+majority in Council, and records his own acts there, may justify these
+acts as legal: I mean the mode is legal. But as he executes whatever he
+proposes as Governor-General, he is solely responsible for the _nature_
+of the acts themselves.
+
+I shall now show your Lordships that Mr. Hastings, finding, as he
+states, the Nabob to be made by the treaty in 1775 eventually a vassal
+to the Company, has thought proper to make him a vassal to himself, for
+his own private purposes. Your Lordships will see what corrupt and
+iniquitous purposes they were. In the first place, in order to
+annihilate in effect the Council, and to take wholly from them their
+control in the affairs of Oude, he suppressed (your Lordships will find
+the fact proved in your minutes) the Persian correspondence, which was
+the whole correspondence of Oude. This whole correspondence was secreted
+by him, and kept from the Council. It was never communicated to the
+Persian translator of the Company, Mr. Colebrooke, who had a salary for
+executing that office. It was secreted, and kept in the private cabinet
+of Mr. Hastings; from the period of 1781 to 1785 no part of it was
+communicated to the Council. There is nothing, as your Lordships have
+often found in this trial, that speaks for the man like himself; there
+is nothing will speak for his conduct like the records of the Company.
+
+
+    "_Fort William, 19th February, 1785._
+
+    "At a Council: present, the Honorable John Macpherson, Esquire,
+    Governor-General, President, and John Stables, Esquire.
+
+       *       *       *       *       *
+
+    "The Persian Translator, attending in obedience to the Board's
+    orders, reports, that, since the end of the year 1781, there have
+    been no books of correspondence kept in his office, because, from
+    that time until the late Governor-General's departure, he was
+    employed but once by the Governor-General to manage the
+    correspondence, during a short visit which Major Davy, the military
+    Persian interpreter, paid by the Governor's order to Lucknow; that,
+    during that whole period of three years, he remained entirely
+    ignorant of the correspondence, as he was applied to on no occasion,
+    except for a few papers sometimes sent to him by the secretaries,
+    which he always returned to them as soon as translated.
+
+    "The Persian Translator has received from Mr. Scott, since the late
+    Governor-General's departure, a trunk containing English draughts
+    and translations and the Persian originals of letters and papers,
+    with three books in the Persian language containing copies of
+    letters written between August, 1782, and January, 1785; and if the
+    Board should please to order the secretaries of the general
+    department to furnish him with copies of all translations and
+    draughts recorded in their Consultations between the 1st of January,
+    1782, and the 31st of January, 1785, he thinks that he should be
+    able, with what he has found in Captain Scott's trunk, to make up
+    the correspondence for that period.
+
+        (Signed) "EDWARD COLEBROOKE,
+            "_Persian Translator._"
+
+Hear, then, my Lords, what becomes of the records of the Company, which
+were to be the vouchers for every public act,--which were to show
+whether, in the Company's transactions, agreements, and treaties with
+the native powers, the public faith was kept or not. You see them all
+crammed into Mr. Scott's trunk: a trunk into which they put what they
+please, take out what they please, suppress what they please, or thrust
+in whatever will answer their purpose. The records of the
+Governor-General and Council of Bengal are kept in Captain Jonathan
+Scott's trunk; this trunk is to be considered as the real and true
+channel of intelligence between the Company and the country powers. But
+even this channel was not open to any member of the Council, except Mr.
+Hastings; and when the Council, for the first time, daring to think for
+themselves, call upon the Persian Translator, he knows nothing about it.
+We find that it is given into the hands of a person nominated by Mr.
+Hastings,--Major Davy. What do the Company know of him? Why, he was Mr.
+Hastings's private secretary. In this manner the Council have been
+annihilated during all these transactions, and have no other knowledge
+of them than just what Mr. Hastings and his trunk-keeper thought proper
+to give them. All, then, that we know of these transactions is from the
+miserable, imperfect, garbled correspondence.
+
+But even if these papers contained a full and faithful account of the
+correspondence, what we charge is its not being delivered to the Council
+as it occurred from time to time. Mr. Hastings kept the whole government
+of Oude in his own hands; so that the Council had no power of judging
+his acts, of checking, controlling, advising, or remonstrating. It was
+totally annihilated by him; and we charge, as an act of treason and
+rebellion against the act of Parliament by which he held his office, his
+depriving the Council of their legitimate authority, by shutting them
+out from the knowledge of all affairs,--except, indeed, when he thought
+it expedient, for his own justification, to have their nominal
+concurrence or subsequent acquiescence in any of his more violent
+measures.
+
+Your Lordships see Mr. Hastings's system, a system of concealment, a
+system of turning the vassals of the Company into his own vassals, to
+make them contributory, not to the Company, but to himself. He has
+avowed this system in Benares; he has avowed it in Oude. It was his
+constant practice. Your Lordships see in Oude he kept a correspondence
+with Mr. Markham for years, and did alone all the material acts which
+ought to have been done in Council. He delegated a power to Mr. Markham
+which he had not to delegate; and you will see he has done the same in
+every part of India.
+
+We first charge him not only with acting without authority, but with a
+strong presumption, founded on his concealment, of intending to act
+mischievously. We next charge his concealing and withdrawing
+correspondence, as being directly contrary to the orders of the Court of
+Directors, the practice of his office, and the very nature and existence
+of the Council in which he was appointed to preside. We charge this as a
+substantive crime, and as the forerunner of the oppression, desolation,
+and ruin of that miserable country.
+
+Mr. Hastings having thus rendered the Council blind and ignorant, and
+consequently fit for subserviency, what does he next do? I am speaking,
+not with regard to the time of his particular acts, but with regard to
+the general spirit of the proceedings. He next flies in the face of the
+Company upon the same principle on which he removed Mr. Fowke from
+Benares. "I removed _him_ on political grounds," says he, "against the
+orders of the Court of Directors, because I thought it necessary that
+the Resident should be a man of my own nomination and confidence." At
+Oude he proceeds on the same principle. Mr. Bristow had been nominated
+to the office of Resident by the Court of Directors. Mr. Hastings, by an
+act of Parliament, was ordered to obey the Court of Directors. He
+positively refuses to receive Mr. Bristow, for no other reason that we
+know of but because he was nominated by the Court of Directors; he
+defies the Court, and declares in effect that they shall not govern that
+province, but that he will govern it by a Resident of his own.
+
+Your Lordships will mark his progress in the establishment of that new
+system, which, he says, he had been obliged to adopt by the evil system
+of his predecessors. First, he annihilates the Council, formed by an act
+of Parliament, and by order of the Court of Directors. In the second
+place, he defies the order of the Court, who had the undoubted
+nomination of all their own servants, and who ordered him, under the
+severest injunction, to appoint Mr. Bristow to the office of Resident in
+Oude. He for some time refused to nominate Mr. Bristow to that office;
+and even when he was forced, against his will, to permit him for a while
+to be there, he sent Mr. Middleton and Mr. Johnson, who annihilated Mr.
+Bristow's authority so completely that no one public act passed through
+his hands.
+
+After he had ended this conflict with the Directors, and had entirely
+shook off their authority, he resolved that the native powers should
+know that they were not to look to the Court of Directors, but to look
+to his arbitrary will in all things; and therefore, to the astonishment
+of the world, and as if it were designedly to expose the nakedness of
+the Parliament of Great Britain, to expose the nakedness of the laws of
+Great Britain, and the nakedness of the authority of the Court of
+Directors to the country powers, he wrote a letter, which your Lordships
+will find in page 795 of the printed Minutes. In this letter the secret
+of his government is discovered to the country powers. They are given to
+understand, that, whatever exaction, whatever oppression or ruin they
+may suffer, they are to look nowhere for relief but to him: not to the
+Council, not to the Court of Directors, not to the sovereign authority
+of Great Britain, but to him, and him only.
+
+Before we proceed to this letter, we will first read to you the Minute
+of Council by which he dismissed Mr. Bristow upon a former occasion, (it
+is in page 507 of the printed Minutes,) that your Lordships may see his
+audacious defiance of the laws of the country. We wish, I say, before we
+show you the horrible and fatal effects of this his defiance, to impress
+continually upon your Lordships' minds that this man is to be tried by
+the laws of the country, and that it is not in his power to annihilate
+their authority and the authority of his masters. We insist upon it,
+that every man under the authority of this country is bound to obey its
+laws. This minute relates to his first removal of Mr. Bristow: I read it
+in order to show that he dared to defy the Court of Directors so early
+as the year 1776.
+
+"Resolved, That Mr. John Bristow be recalled to the Presidency from the
+court of the Nabob of Oude, and that Mr. Nathaniel Middleton be restored
+to the appointment of Resident at that court, subject to the orders and
+authority of the Governor-General and Council, conformably to the motion
+of the Governor-General."
+
+I will next read to your Lordships the orders of the Directors for his
+reinstatement, on the 4th of July, 1777.
+
+"Upon the most careful perusal of your proceedings upon the 2d of
+December, 1776, relative to the recall of Mr. Bristow from the court of
+the Nabob of Oude, and the appointment of Mr. Nathaniel Middleton to
+that station, we must declare our strongest disapprobation of the whole
+of that transaction. We observe that the Governor-General's motion for
+the recall of Mr. Bristow includes that for the restoration of Mr.
+Nathaniel Middleton; but as neither of those measures appear to us
+necessary, or even justifiable, they cannot receive our approbation.
+With respect to Mr. Bristow, we find no shadow of charge against him. It
+appears that he has executed his trust to the entire satisfaction even
+of those members of the Council who did not concur in his appointment.
+You have unanimously recommended him to our notice; attention to your
+recommendation has induced us to afford him marks of our favor, and to
+reannex the emoluments affixed by you to his appointment, which had been
+discontinued by our order; and as we must be of opinion that a person of
+acknowledged abilities, whose conduct has thus gained him the esteem of
+his superiors, ought not to be degraded without just cause, we do not
+hesitate to interpose in his behalf, and therefore direct that Mr.
+Bristow do forthwith return to his station of Resident at Oude, from
+which he has been so improperly removed."
+
+Upon the receipt of these orders by the Council, Mr. Francis, then a
+member of the Council, moves, "That, in obedience to the Company's
+orders, Mr. Bristow be forthwith appointed and directed to return to his
+station of Resident at Oude, and that Mr. Purling be ordered to deliver
+over charge of the office to Mr. Bristow immediately on his arrival, and
+return himself forthwith to the Presidency; also that the
+Governor-General be requested to furnish Mr. Bristow with the usual
+letter of credence to the Nabob Vizier."
+
+Upon this motion being made, Mr. Hastings entered the following minute.
+
+"I will ask, who is Mr. Bristow, that a member of the administration
+should at such a time hold him forth as an instrument for the
+degradation of the first executive member of this government? What are
+the professed objects of his appointment? What are the merits and
+services, or what the qualifications, which entitle him to such an
+uncommon distinction? Is it for his superior integrity, or from his
+eminent abilities, that he is to be dignified, at such hazards of every
+consideration that ought to influence members of this administration? Of
+the former I know no proofs; I am sure that it is not an evidence of it,
+that he has been enabled to make himself the principal in such a
+competition; and for the test of his abilities, I appeal to the letter
+which he has dared to write to this board, and which, I am ashamed to
+say, we have suffered. I desire that a copy of it may be inserted in
+this day's proceedings, that it may stand before the eyes of every
+member of the board, when he shall give his vote upon a question for
+giving their confidence to a man, their servant, who has publicly
+insulted them, his masters, and the members of the government, to whom
+he owes his obedience; who, assuming an association with the Court of
+Directors, and erecting himself into a tribunal, has arraigned them for
+disobedience of orders, passed judgment upon them, and condemned or
+acquitted them as their magistrate and superior. Let the board consider
+whether a man possessed of so independent a spirit, who has already
+shown such a contempt of their authority, who has shown himself so
+wretched an advocate for his own cause and negotiator for his own
+interest, is fit to be trusted with the guardianship of their honor, the
+execution of their measures, and as their confidential manager and
+negotiator with the princes of India."
+
+My Lords, you here see an instance of what I have before stated to your
+Lordships, and what I shall take the liberty of recommending to your
+constant consideration. You see that a tyrant and a rebel is one and the
+same thing. You see this man, at the very time that he is a direct rebel
+to the Company, arbitrarily and tyrannically displacing Mr. Bristow,
+although he had previously joined in the approbation of his conduct, and
+in voting him a pecuniary reward. He is ordered by the Court of
+Directors to restore that person, who desires, in a suppliant, decent,
+proper tone, that the Company's orders should produce their effect, and
+that the Council would have the goodness to restore him to his
+situation.
+
+My Lords, you have seen the audacious insolence, the tyrannical pride,
+with which he dares to treat this order. You have seen the recorded
+minute which he has dared to send to the Court of Directors; and in
+this you see, that, when he cannot directly asperse a man's conduct, and
+has nothing to say against it, he maliciously, I should perhaps rather
+say enviously, insinuates that he had unjustly made his fortune. "You
+are," says he, "to judge from the independence of his manner and style,
+whether he could or no have got that without some unjust means." God
+forbid I should ever be able to invent anything that can equal the
+impudence of what this man dares to write to his superiors, or the
+insolent style in which he dares to treat persons who are not his
+servants!
+
+Who made the servants of the Company the master of the servants of the
+Company? The Court of Directors are their fellow-servants; they are all
+the servants of this kingdom. Still the claim of a fellow-servant to
+hold an office which the Court of Directors had legally appointed him to
+is considered by this audacious tyrant as an insult to him. By this you
+may judge how he treats not only the servants of the Company, but the
+natives of the country, and by what means he has brought them into that
+abject state of servitude in which they are ready to do anything he
+wishes and to sign anything he dictates. I must again beg your Lordships
+to remark what this man has had the folly and impudence to place upon
+the records of the Council of which he was President; and I will venture
+to assert that so extraordinary a performance never before appeared on
+the records of any court, Eastern or European. Because Mr. Bristow
+claims an office which is his right and his freehold as long as the
+Company chooses, Mr. Hastings accuses him of being an accomplice with
+the Court of Directors in a conspiracy against him; and because, after
+long delays, he had presented an humble petition to have the Court of
+Directors' orders in his favor carried into execution, he says "he has
+erected himself into a tribunal of justice; that he has arraigned the
+Council for disobedience of orders, passed judgment upon them, and
+condemned or acquitted them as their magistrate and superior."
+
+Let us suppose his Majesty to have been pleased to appoint any one to an
+office in the gift of the crown, what should we think of the person
+whose business it was to execute the King's commands, if he should say
+to the person appointed, when he claimed his office, "You shall not have
+it, you assume to be my superior, and you disgrace and dishonor me"?
+Good God! my Lords, where was this language learned? in what country,
+and in what barbarous nation of Hottentots was this jargon picked up?
+For there is no Eastern court that I ever heard of (and I believe I have
+been as conversant with the manners and customs of the East as most
+persons whose business has not directly led them into that country)
+where such conduct would have been tolerated. A bashaw, if he should be
+ordered by the Grand Seignior to invest another with his office, puts
+the letter upon his head, and obedience immediately follows.
+
+But the obedience of a barbarous magistrate should not be compared to
+the obedience which a British subject owes to the laws of his country.
+Mr. Hastings receives an order which he should have instantly obeyed. He
+is reminded of this by the person who suffers from his disobedience; and
+this proves that person to be possessed of too independent a spirit. Ay,
+my Lords, here is the grievance;--no man can dare show in India an
+independent spirit. It is this, and not his having shown such a
+contempt of their authority, not his having shown himself so wretched an
+advocate for his own cause and so had a negotiator for his own interest,
+that makes him unfit to be trusted with the guardianship of their honor,
+the execution of their measures, and to be their confidential manager
+and negotiator with the princes of India.
+
+But, my Lords, what is this want of skill which Mr. Bristow has shown in
+negotiating his own affairs? Mr. Hastings will inform us. "He should
+have pocketed the letter of the Court of Directors; he should never have
+made the least mention of it. He should have come to my banian, Cantoo
+Baboo; he should have offered him a bribe upon the occasion. That would
+have been the way to succeed with me, who am a public-spirited taker of
+bribes and nuzzers. But this base fool, this man, who is but a vile
+negotiator for his own interest, has dared to accept the patronage of
+the Court of Directors. He should have secured the protection of Cantoo
+Baboo, their more efficient rival. This would have been the skilful mode
+of doing the business." But this man, it seems, had not only shown
+himself an unskilful negotiator, he had likewise afforded evidence of
+his want of integrity. And what is this evidence? His having "enabled
+himself to become the _principal_ in such a competition." That is to
+say, he had, by his meritorious conduct in the service of his masters,
+the Directors, obtained their approbation and favor. Mr. Hastings then
+contemptuously adds, "And for the test of his abilities, I appeal to the
+letter which he has dared to write to the board, and which I am ashamed
+to say we have suffered." Whatever that letter may be, I will venture to
+say there is not a word or syllable in it that tastes of such insolence
+and arbitrariness with regard to the servants of the Company, his
+fellow-servants, of such audacious rebellion with regard to the laws of
+his country, as are contained in this minute of Mr. Hastings.
+
+But, my Lords, why did he choose to have Mr. Middleton appointed
+Resident? Your Lordships have not seen Mr. Bristow: you have only heard
+of him as a humble suppliant to have the orders of the Company obeyed.
+But you have seen Mr. Middleton. You know that Mr. Middleton is a good
+man to keep a secret: I describe him no further. You know what
+qualifications Mr. Hastings requires in a favorite. You also know why he
+was turned out of his employment, with the approbation of the Court of
+Directors: that it was principally because, when Resident in Oude, he
+positively, audaciously, and rebelliously refused to lay before the
+Council the correspondence with the country powers. He says he gave it
+up to Mr. Hastings. Whether he has or has not destroyed it we know not;
+all we know of it is, that it is not found to this hour. We cannot even
+find Mr. Middleton's trunk, though Mr. Jonathan Scott did at last
+produce his. The whole of the Persian correspondence, during Mr.
+Middleton's Residence, was refused, as I have said, to the board at
+Calcutta and to the Court of Directors,--was refused to the legal
+authorities; and Mr. Middleton, for that very refusal, was again
+appointed by Mr. Hastings to supersede Mr. Bristow, removed without a
+pretence of offence; he received, I say, this appointment from Mr.
+Hastings, as a reward for that servile compliance by which he dissolved
+every tie between himself and his legal masters.
+
+The matter being now brought to a simple issue, whether the
+Governor-General is or is not bound to obey his superiors, I shall here
+leave it with your Lordships; and I have only to beg your Lordships will
+remark the course of events as they follow each other,--keeping in mind
+that the prisoner at your bar declared Mr. Bristow to be a man of
+suspected integrity, on account of his independence, and deficient in
+ability, because he did not know how best to promote his own interest.
+
+I must here state to your Lordships, that it was the duty of the
+Resident to transact the money concerns of the Company, as well as its
+political negotiations. You will now see how Mr. Hastings divided that
+duty, after he became apprehensive that the Court of Directors might be
+inclined to assert their own authority, and to assert it in a proper
+manner, which they so rarely did. When, therefore, his passion had
+cooled, when his resentment of those violent indignities which had been
+offered to him, namely, the indignity of being put in mind that he had
+any superior under heaven, (for I know of no other,) he adopts the
+expedient of dividing the Residency into two offices; he makes a fair
+compromise between himself and the Directors; he appoints Mr. Middleton
+to the management of the money concerns, and Mr. Bristow to that of the
+political affairs. Your Lordships see that Mr. Bristow, upon whom he had
+fixed the disqualification for political affairs, was the very person
+appointed to that department; and to Mr. Middleton, the man of his
+confidence, he gives the management of the money transactions. He
+discovers plainly where his heart was: for where your treasure is, there
+will your heart be also. This private agent, this stifler of
+correspondence, a man whose costive retention discovers no secret
+committed to him, and whose slippery memory is subject to a diarrhoea
+which permits everything he did know to escape,--this very man he places
+in a situation where his talents could only be useful for concealment,
+and where concealment could only be used to cover fraud; while Mr.
+Bristow, who was by his official engagement responsible to the Company
+for fair and clear accounts, was appointed superintendent of political
+affairs, an office for which Mr. Hastings declared he was totally unfit.
+
+My Lords, you will judge of the designs which the prisoner had in
+contemplation, when he dared to commit this act of rebellion against the
+Company; you will see that it could not have been any other than getting
+the money transactions of Oude into his own hands. The presumption of a
+corrupt motive is here as strong as, I believe, it possibly can be.
+
+The next point to which I have to direct your Lordships' attention is
+that part of the prisoner's conduct, in this matter, by which he exposed
+the nakedness of the Company's authority to the native powers. You would
+imagine, that, after the first dismissal of Mr. Bristow, Mr. Hastings
+would have done with him forever; that nothing could have induced him
+again to bring forward a man who had dared to insult him, a man who had
+shown an independent spirit, a man who had dishonored the Council and
+insulted his masters, a man of doubtful integrity and convicted
+unfitness for office. But, my Lords, in the face of all this, he
+afterwards sends this very man, with undivided authority, into the
+country as sole Resident. And now your Lordships shall hear in what
+manner he accounts for this appointment to Gobind Ram, the _vakeel_, or
+ambassador, of the Nabob Asoph ul Dowlah at Calcutta. It is in page 795
+of the printed Minutes.
+
+
+    _Extract of an Arzee sent by Rajah Gobind Ram to the Vizier, by the
+    Governor-General's directions, and written the 27th of August,
+    1782._
+
+    "This day the Governor-General sent for me in private. After
+    recapitulating the various informations he had received respecting
+    the anarchy and confusion said to reign throughout your Highness's
+    country, and complains that neither your Highness, or Hyder Beg
+    Khan, or Mr. Middleton, or Mr. Johnson, ever wrote to him on the
+    state of your affairs, or, if he ever received a letter from your
+    presence, it always contained assertions contrary to the above
+    informations, the Governor-General proceeded as follows.
+
+    "That it was his intention to have appointed Mr. David Anderson to
+    attend upon your Highness, but that he was still with Sindia, and
+    there was no prospect of his speedy return from his camp; therefore
+    it was now his wish to appoint Mr. John Bristow, who was well
+    experienced in business, to Lucknow. That, when Mr. Bristow formerly
+    held the office of Resident there, he was not appointed by him; and
+    that, notwithstanding he had not shown any instances of
+    disobedience, yet he had deemed it necessary to recall him, because
+    he had been patronized and appointed by gentlemen who were in
+    opposition to him, and had counteracted and thwarted all his
+    measures; that this had been his reason for recalling Mr. Bristow.
+    That, since Mr. Francis's return to Europe, and the arrival of
+    information there of the deaths of the other gentlemen, the King and
+    the Company had declared their approbation of his, the
+    Governor-General's, conduct, and had conferred upon him the most
+    ample powers; that they had sent out Mr. Macpherson, who was his
+    old and particular friend; and that Mr. Stables, that was on his way
+    here as a member of the Supreme Council, was also his particular
+    friend; that Mr. Wheler had received letters from Europe, informing
+    him that the members of the Council were enjoined all of them to
+    cooeperate and act in conjunction with him, in every measure which
+    should be agreeable to him; and that there was no one in Council now
+    who was not united with him, and consequently that his authority was
+    perfect and complete. That Mr. Bristow, as it was known to me, had
+    returned to Europe; but that during his stay there he had never said
+    anything disrespectful of him or endeavored to injure him; on the
+    contrary, he had received accounts from Europe that Mr. Bristow had
+    spoken much in his praise, so that Mr. Bristow's friends had become
+    his friends; that Mr. Bristow had lately been introduced to him by
+    Mr. Macpherson, had explained his past conduct perfectly to his
+    satisfaction, and had requested from him the appointment to Lucknow,
+    and had declared, in the event of his obtaining the appointment,
+    that he should show every mark of attention and obedience to the
+    pleasure of your Highness, and his, the Governor's, saying, that
+    your Highness was well pleased with him, and that he knew what you
+    had written formerly was at the instigation of Mr. Middleton. That,
+    in consequence of the foregoing, he, the Governor, had determined to
+    have appointed Mr. Bristow to Lucknow, but had postponed his
+    dismission to his office for the following reasons, _videlicet_,
+    people at Lucknow might think that Mr. Bristow had obtained his
+    appointment in consequence of orders from Europe, and contrary to
+    the Governor's inclination; but as the contrary was the case, and
+    as he now considered Mr. Bristow as the object of his own particular
+    patronage, therefore he directed me to forward Mr. Bristow's arzee
+    to the presence; and that it was the Governor's wish that your
+    Highness, on the receipt thereof, would write a letter to him, and,
+    as from yourself, request of him that Mr. Bristow may be appointed
+    to Lucknow, and that you would write an answer to this arzee,
+    expressive of your personal satisfaction, on the subject. The
+    Governor concluded with injunctions, that, until the arrival of your
+    Highness's letter requesting the appointment of Mr. Bristow, and
+    your answer to this arzee, that I should keep the particulars of
+    this conversation a profound secret; for that the communication of
+    it to any person whatever would not only cause his displeasure, but
+    would throw affairs at Lucknow into great confusion.
+
+    "The preceding is the substance of the Governor's directions to me.
+    He afterwards went to Mr. Macpherson's, and I attended him. Mr.
+    Bristow was there; the Governor took Mr. Bristow's arzee from his
+    hand and delivered it into mine, and thence proceeded to Council.
+    Mr. Bristow's arzee, and the following particulars, I transmit and
+    communicate by the Governor's directions; and I request that I may
+    be favored with the answer to the arzee and the letter to the
+    Governor as soon as possible, as his injunctions to me were very
+    particular on the subject."
+
+My Lords, I have to observe upon this very extraordinary transaction,
+that you will see many things in this letter that are curious, and
+worthy of being taken out of that abyss of secrets, Mr. Scott's trunk,
+in which this arzee was found. It contains, as far as the prisoner
+thinks proper to reveal it, the true secret of the transaction.
+
+He confesses, first, the state of the Vizier's country, as communicated
+to him in various accounts of the anarchy and confusion said to reign
+throughout his territories. This was in the year 1782, during the time
+that the Oude correspondence was not communicated to the Council.
+
+He next stated, that neither the Vizier, nor his minister, nor Mr.
+Middleton, nor Mr. Johnson, ever wrote to him on the state of affairs.
+Here, then, are three or four persons, all nominated by himself, every
+one of them supposed to be in his strictest confidence,--the Nabob and
+his vassal, Hyder Beg Khan, being, as we shall show afterwards, entirely
+his dependants,--and yet Mr. Hastings declares, that not one of them had
+done their duty, or had written him one word concerning the state of the
+country, and the anarchy and confusion that prevailed in it, and that,
+when the Nabob did write, his assertions were contrary to the real state
+of things. Now this irregular correspondence, which he carried on at
+Lucknow, and which gave him, as he pretends, this contradictory
+information, was, as your Lordships will see, nothing more or less than
+a complete fraud.
+
+Your Lordships will next observe, that he tells the vakeel his reason
+for turning him out was, that he had been patronized by other gentlemen.
+This was true: but they had a right to patronize him; and they did not
+patronize him from private motives, but in direct obedience to the order
+of the Court of Directors. He then adds the assurance which he had
+received from Mr. Bristow, that he would be perfectly obedient to him,
+Mr. Hastings, in future; and he goes on to tell the vakeel that he knew
+the Vizier was once well pleased with him, (Mr. Bristow,) and that his
+formal complaints against him were written at the instigation of Mr.
+Middleton.
+
+Here is another discovery, my Lords. When he recalled Mr. Bristow, he
+did it under the pretence of its being desired by the Nabob of Oude; and
+that, consequently, he would not keep at the Nabob's court a man that
+was disagreeable to him. Yet, when the thing comes to be opened, it
+appears that Mr. Middleton had made the Nabob, unwillingly, write a
+false letter. This subornation of falsehood appears also to have been
+known to Mr. Hastings. Did he, either as the natural guardian and
+protector of the reputation of his fellow-servants, or as the official
+administrator of the laws of his country, or as a faithful servant of
+the Company, ever call Mr. Middleton to an account for it? No, never. To
+everybody, therefore, acquainted with the characters and circumstances
+of the parties concerned, the conclusion will appear evident that he was
+himself the author of it. But your Lordships will find there is no end
+of his insolence and duplicity.
+
+He next tells the vakeel, that the reason why he postponed the mission
+of Mr. Bristow to Lucknow was lest the people of Lucknow should think he
+had obtained his appointment in consequence of orders from Europe, and
+contrary to the Governor's inclination. You see, my Lords, he would have
+the people of the country believe that they are to receive the person
+appointed Resident not as appointed by the Company, but in consequence
+of his being under Mr. Hastings's particular patronage; and to remove
+from them any suspicion that the Resident would obey the orders of the
+Court of Directors, or any orders but his own, he proceeds in the manner
+I have read to your Lordships.
+
+You here see the whole machinery of the business. He removes Mr.
+Bristow, contrary to the orders of the Court of Directors. Why? Because,
+says he to the Court of Directors, the Nabob complained of him, and
+desired it. He here says, that he knew the Nabob did not desire it, but
+that the letter of complaint really and substantially was Mr.
+Middleton's. Lastly, as he recalls Mr. Bristow, so he wishes him to be
+called back in the same fictitious and fraudulent manner. This system of
+fraud proves that there is not one letter from that country, not one act
+of this Vizier, not one act of his ministers, not one act of his
+ambassadors, but what is false and fraudulent. And now think, my Lords,
+first, of the slavery of the Company's servants, subjected in this
+manner to the arbitrary will and corrupt frauds of Mr. Hastings! Next
+think of the situation of the princes of the country, obliged to
+complain without matter of complaint, to approve without [ground?] of
+satisfaction, and to have all their correspondence fabricated by Mr.
+Hastings at Calcutta!
+
+But, my Lords, it was not indignities of this kind alone that the native
+princes suffered from this system of fraud and duplicity. Their more
+essential interests, and those of the people, were involved in it; it
+pervaded and poisoned the whole mass of their internal government.
+
+Who was the instrument employed in all this double-dealing? Gobind Ram,
+the Vizier's diplomatic minister at Calcutta. Suspicions perpetually
+arise in his mind whether he is not cheated and imposed upon. He could
+never tell when he had Mr. Hastings fixed upon any point. He now finds
+him recommending Mr. Middleton, and then declaring that Mr. Middleton
+neglects the duty of his office, and gives him, Gobind Ram, information
+that is fraudulent and directly contrary to the truth. He is let into
+various contradictory secrets, and becomes acquainted with innumerable
+frauds, falsehoods, and prevarications. He knew that the whole pretended
+government of Oude was from beginning to end a deception; that it was an
+imposture for the purpose of corruption and peculation. Such was the
+situation of the Nabob's vakeel. The Nabob himself was really at a loss
+to know who had and who had not the Governor's confidence; whether he
+was acting in obedience to the orders of the Court of Directors, or
+whether their orders were not always to be disobeyed. He thus writes to
+Gobind Ram, who was exactly in the same uncertainty.
+
+"As to the commands of Mr. Hastings which you write on the subject of
+the distraction of the country and the want of information from me, and
+his wishes, that, as Mr. John Bristow has shown sincere wishes and
+attachment to Mr. Hastings, I should write for him to send Mr. John
+Bristow, it would have been proper and necessary for you privately to
+have understood what were Mr. Hastings's real intentions, whether the
+choice of sending Mr. John Bristow was his own desire, or whether it was
+in compliance with Mr. Macpherson's, that I might then have written
+conformably thereto. Writings are now sent to you for both cases; having
+privately understood the wishes of Mr. Hastings, deliver whichever of
+the writings he should order you; for I study Mr. Hastings's
+satisfaction; whoever is his friend is mine, and whoever is his enemy is
+mine. But in both these cases, my wishes are the same; that having
+consented to the paper of questions which Major Davy carried with him,
+and having given me the authority of the country, whomever he may
+afterwards appoint, I am satisfied. I am now brought to great distress
+by these gentlemen, who ruin me; in case of consent, I am contented with
+Majors Davy and Palmer. Hereafter, whatever may be Mr. Hastings's
+desire, it is best."
+
+Here is a poor, miserable instrument, confessing himself to be such,
+ruined by Mr. Hastings's public agents, Mr. Middleton and Mr. Johnson;
+ruined by his private agents, Major Davy and Major Palmer; ruined
+equally by them all; and at last declaring in a tone of despair, "If you
+have a mind really to keep Major Davy and Major Palmer here, why, I must
+consent to it. Do what you please with me, I am your creature; for God's
+sake, let me have a little rest."
+
+Your Lordships shall next hear what account Hyder Beg Khan, the Vizier's
+prime-minister, gives of the situation in which he and his master were
+placed.
+
+
+    _Extract of a Letter from Hyder Beg Khan, received 21st April,
+    1785._
+
+    "I hope that such orders and commands as relate to the friendship
+    between his Highness and the Company's governments and to your will
+    may be sent through Major Palmer, in your own private letters, or in
+    your letters to the Major, who is appointed from you at the presence
+    of his Highness, that, in obedience to your orders, he may properly
+    explain your commands, and, whatever affair may be settled, he may
+    first secretly inform you of it, and afterwards his Highness may,
+    conformably thereto, write an answer, and I also may represent it.
+    By this system, your pleasure will always be fully made known to his
+    Highness; and his Highness and we will execute whatever may be your
+    orders, without deviating a hair's-breadth: and let not the
+    representations of interested persons be approved of, because his
+    Highness makes no opposition to your will; and I, your servant, am
+    ready in obedience and service, and I make no excuses."
+
+Now, my Lords, was there ever such a discovery made of the arcana of any
+public theatre? You see here, behind the ostensible scenery, all the
+crooked working of the machinery developed and laid open to the world.
+You now see by what secret movement the master of the mechanism has
+conducted the great Indian opera,--an opera of fraud, deceptions, and
+harlequin tricks. You have it all laid open before you. The ostensible
+scene is drawn aside; it has vanished from your sight. All the strutting
+signors, and all the soft signoras are gone; and instead of a brilliant
+spectacle of descending chariots, gods, goddesses, sun, moon, and stars,
+you have nothing to gaze on but sticks, wire, ropes, and machinery. You
+find the appearance all false and fraudulent; and you see the whole
+trick at once. All this, my Lords, we owe to Major Scott's trunk, which,
+by admitting us behind the scene, has enabled us to discover the real
+state of Mr. Hastings's government in India. And can your Lordships
+believe that all this mechanism of fraud, prevarication, and falsehood
+could have been intended for any purpose but to forward that robbery,
+corruption, and peculation by which Mr. Hastings has destroyed one of
+the finest countries upon earth? Is it necessary, after this, for me to
+tell you that you are not to believe one word of the correspondence
+stated by him to have been received from India? This discovery goes to
+the whole matter of the whole government of the country. You have seen
+what that government was, and by-and-by you shall see the effects of it.
+
+Your Lordships have now seen this trunk of Mr. Scott's producing the
+effects of Aladdin's lamp,--of which your Lordships may read in books
+much more worthy of credit than Mr. Hastings's correspondence. I have
+given all the credit of this precious discovery to Mr. Scott's trunk;
+but, my Lords, I find that I have to ask pardon for a mistake in
+supposing the letter of Hyder Beg Khan to be a part of Mr. Hastings's
+correspondence. It comes from another quarter, not much less singular,
+and equally authentic and unimpeachable. But though it is not from the
+trunk, it smells of the trunk, it smells of the leather. I was as proud
+of my imaginary discovery as Sancho Panza was that one of his ancestors
+had discovered a taste of iron in some wine, and another a taste of
+leather in the same wine, and that afterwards there was found in the
+cask a little key tied to a thong of leather, which had given to the
+wine a taste of both. Now, whether this letter tasted of the leather of
+the trunk or of the iron of Mr. Macpherson, I confess I was a little
+out in my suggestion and my taste. The letter in question was written by
+Hyder Beg Khan, after Mr. Hastings's departure, to Mr. Macpherson, when
+he succeeded to the government. That gentleman thus got possession of a
+key to the trunk; and it appears to have been his intentions to follow
+the steps of his predecessor, to act exactly in the same manner, and in
+the same manner to make the Nabob the instrument of his own ruin. This
+letter was written by the Nabob's minister to Sir John Macpherson, newly
+inaugurated into his government, and who might be supposed not to be
+acquainted with all the best of Mr. Hastings's secrets, nor to have had
+all the trunk correspondence put into his hands. However, here is a
+trunk extraordinary, and its contents are much in the manner of the
+other. The Nabob's minister acquaints him with the whole secret of the
+system. It is plain that the Nabob considered it as a system not to be
+altered: that there was to be nothing true, nothing aboveboard, nothing
+open in the government of his affairs. When you thus see that there can
+be little doubt of the true nature of the government, I am sure that
+hereafter, when we come to consider the effects of that government, it
+will clear up and bring home to the prisoner at your bar all we shall
+have to say upon this subject.
+
+Mr. Hastings, having thrown off completely the authority of the Company,
+as you have seen,--having trampled upon those of their servants who had
+manifested any symptom of independence, or who considered the orders of
+the Directors as a rule of their conduct,--having brought every
+Englishman under his yoke, and made them supple and fit instruments for
+all his designs,--then gave it to be understood that such alone were
+fit persons to be employed in important affairs of state. Consider, my
+Lords, the effect of this upon the whole service. Not one man that
+appears to pay any regard to the authority of the Directors is to expect
+that any regard will be paid to himself. So that this man not only
+rebels himself, in his own person, against the authority of the Company,
+but he makes all their servants join him in this very rebellion. Think,
+my Lords, of this state of things,--and I wish it never to pass from
+your minds that I have called him the captain-general of the whole host
+of actors in Indian iniquity, under whom that host was arrayed,
+disciplined, and paid. This language which I used was not, as fools have
+thought proper to call it, offensive and abusive; it is in a proper
+criminatory tone, justified by the facts that I have stated to you, and
+in every step we take it is justified more and more. I take it as a text
+upon which I mean to preach; I take it as a text which I wish to have in
+your Lordships' memory from the beginning to the end of this proceeding.
+He is not only guilty of iniquity himself, but is at the head of a
+system of iniquity and rebellion, and will not suffer with impunity any
+one honest man to exist in India, if he can help it. Every mark of
+obedience to the legal authority of the Company is by him condemned; and
+if there is any virtue remaining in India, as I think there is, it is
+not his fault that it still exists there.
+
+We have shown you the servile obedience of the natives of the country;
+we have shown you the miserable situation to which a great prince, at
+least a person who was the other day a great prince, was reduced by Mr.
+Hastings's system. We shall next show you that this prince, who,
+unfortunately for himself, became a dependant on the Company, and
+thereby subjected to the will of an arbitrary government, is made by him
+the instrument of his own degradation, the instrument of his (the
+Governor's) falsehoods, the instrument of his peculations; and that he
+had been subjected to all this degradation for the purposes of the most
+odious tyranny, violence, and corruption.
+
+Mr. Hastings, having assumed the government to himself, soon made Oude a
+private domain. It had, to be sure, a public name, but it was to all
+practical intents and purposes his park, or his warren,--a place, as it
+were, for game, whence he drew out or killed, at an earlier or later
+season, as he thought fit, anything he liked, and brought it to his
+table according as it served his purpose. Before I proceed, it will not
+be improper for me to remind your Lordships of the legitimate ends to
+which all controlling and superintending power ought to be directed.
+Whether a man acquires this power by law or by usurpation, there are
+certain duties attached to his station. Let us now see what these duties
+are.
+
+The first is, to take care of that vital principle of every state, its
+revenue. The next is, to preserve the magistracy and legal authorities
+in honor, respect, and force. And the third, to preserve the property,
+movable and immovable, of all the people committed to his charge.
+
+In regard to his first duty, the protection of the revenue, your
+Lordships will find, that, from three millions and upwards which I
+stated to be the revenue of Oude, and which Mr. Hastings, I believe, or
+anybody for him, has never thought proper to deny, it sunk under his
+management to about one million four hundred and forty thousand pounds:
+and even this, Mr. Middleton says, (as you may see in your minutes,) was
+not completely realized. Thus, my Lords, you see that one half of the
+whole revenue of the country was lost after it came into Mr. Hastings's
+management. Well, but it may perhaps be said this was owing to the
+Nabob's own imprudence. No such thing, my Lords; it could not be so; for
+the whole _real_ administration and government of the country was in the
+hands of Mr. Hastings's agents, public or private.
+
+To let you see how provident Mr. Hastings's management of it was, I
+shall produce to your Lordships one of the principal manoeuvres that he
+adopted for the improvement of the revenue, and for the happiness and
+prosperity of the country, the latter of which will always go along,
+more or less, with the first.
+
+The Nabob, whose acts your Lordships have now learned to appreciate as
+no other than the acts of Mr. Hastings, writes to the Council to have a
+body of British officers, for the purposes of improving the discipline
+of his troops, collecting his revenues, and repressing disorder and
+outrage among his subjects. This proposal was ostensibly fair and
+proper; and if I had been in the Council at that time, and the Nabob had
+really and _bona fide_ made such a request, I should have said he had
+taken a very reasonable and judicious step, and that the Company ought
+to aid him in his design.
+
+Among the officers sent to Oude, in consequence of this requisition, was
+the well-known Colonel Hannay: a man whose name will be bitterly and
+long remembered in India. This person, we understand, had been
+recommended to Mr. Hastings by Sir Elijah Impey: and his appointment was
+the natural consequence of such patronage. I say the natural
+consequence, because Sir Elijah Impey appears on your minutes to have
+been Mr. Hastings's private agent and negotiator in Oude. In that light,
+and in that light only, I consider Colonel Hannay in this business. We
+cannot prove that he was not of Mr. Hastings's own nomination originally
+and primarily; but whether we take him in this way, or as recommended by
+Sir Elijah Impey, or anybody else, Mr. Hastings is equally responsible.
+
+Colonel Hannay is sent up by Mr. Hastings, and has the command of a
+brigade, of two regiments I think, given to him. Thus far all is
+apparently fair and easily understood. But in this country we find
+everything in masquerade and disguise. We find this man, instead of
+being an officer, farmed the revenue of the country, as is proved by
+Colonel Lumsden and other gentlemen, who were his sub-farmers and his
+assistants. Here, my Lords, we have a man who appeared to have been sent
+up the country as a commander of troops, agreeably to the Nabob's
+request, and who, upon our inquiry, we discover to have been
+farmer-general of the country! We discover this with surprise; and I
+believe, till our inquiries began, it was unknown in Europe. We have,
+however, proved upon your Lordships' minutes, by an evidence produced by
+Mr. Hastings himself, that Colonel Hannay was actually farmer-general of
+the countries of Baraitch and Goruckpore. We have proved upon your
+minutes that Colonel Hannay was the only person possessed of power in
+the country; that there was no magistrate in it, nor any administration
+of the law whatever. We have proved to your Lordships that in his
+character of farmer-general he availed himself of the influence derived
+from commanding a battalion of soldiers. In short, we have proved that
+the whole power, civil, military, municipal, and financial, resided in
+him; and we further refer your Lordships to Mr. Lumsden and Mr. Halhed
+for the authority which he possessed in that country. Your Lordships, I
+am sure, will supply with your diligence what is defective in my
+statement; I have therefore taken the liberty of indicating to you where
+you are to find the evidence to which I refer. You will there, my Lords,
+find this Colonel Hannay in a false character: he is ostensibly given to
+the Nabob as a commander of his troops, while in reality he is forced
+upon that prince as his farmer-general. He is invested with the whole
+command of the country, while the sovereign is unable to control him, or
+to prevent his extorting from the people whatever he pleases.
+
+If we are asked what the terms of his farm were, we cannot discover that
+he farmed the country at any certain sum. We cannot discover that he was
+subjected to any terms, or confined by any limitations. Armed with
+arbitrary power, and exercising that power under a false title, his
+exactions from the poor natives were only limited by his own pleasure.
+Under these circumstances, we are now to ask what there was to prevent
+him from robbing and ruining the people, and what security against his
+robbing the exchequer of the person whose revenue he farmed.
+
+You are told by the witnesses in the clearest manner, (and, after what
+you have heard of the state of Oude, you cannot doubt the fact,) that
+nobody, not even the Nabob, dared to complain against him,--that he was
+considered as a man authorized and supported by the power of the British
+government; and it is proved in the evidence before you that he vexed
+and harassed the country to the utmost extent which we have stated in
+our article of charge, and which you would naturally expect from a man
+acting under such false names with such real powers. We have proved that
+from some of the principal zemindars in that country, who held farms let
+to them for twenty-seven thousand rupees a year, a rent of sixty
+thousand was demanded, and in some cases enforced,--and that upon the
+refusal of one of them to comply with this demand, he was driven out of
+the country.
+
+Your Lordships will find in the evidence before you that the inhabitants
+of the country were not only harassed in their fortunes, but cruelly
+treated in their persons. You have it upon Mr. Halhed's evidence, and it
+is not attempted, that I know of, to be contradicted, that the people
+were confined in open cages, exposed to the scorching heat of the sun,
+for pretended or real arrears of rent: it is indifferent which, because
+I consider all confinement of the person to support an arbitrary
+exaction to be an abomination not to be tolerated. They have endeavored,
+indeed, to weaken this evidence by an attempt to prove that a man day
+and night in confinement in an open cage suffers no inconvenience. And
+here I must beg your Lordships to observe the extreme unwillingness that
+appears in these witnesses. Their testimony is drawn from them drop by
+drop, their answers to our questions are never more than yes or no; but
+when they are examined by the counsel on the other side, it flows as
+freely as if drawn from a perennial spring: and such a spring we have in
+Indian corruption. We have, however, proved that in these cages the
+renters were confined till they could be lodged in the dungeons or mud
+forts. We have proved that some of them were obliged to sell their
+children, that others fled the country, and that these practices were
+carried to such an awful extent that Colonel Hannay was under the
+necessity of issuing orders against the unnatural sale and flight which
+his rapacity had occasioned.
+
+The prisoner's counsel have attempted to prove that this had been a
+common practice in that country. And though possibly some person as
+wicked as Colonel Hannay might have been there before at some time or
+other, no man ever sold his children but under the pressure of some
+cruel exaction. Nature calls out against it. The love that God has
+implanted in the heart of parents towards their children is the first
+germ of that second conjunction which He has ordered to subsist between
+them and the rest of mankind. It is the first formation and first bond
+of society. It is stronger than all laws; for it is the law of Nature,
+which is the law of God. Never did a man sell his children who was able
+to maintain them. It is, therefore, not only a proof of his exactions,
+but a decisive proof that these exactions were intolerable.
+
+Next to the love of parents for their children, the strongest instinct,
+both natural and moral, that exists in man, is the love of his country:
+an instinct, indeed, which extends even to the brute creation. All
+creatures love their offspring; next to that they love their homes: they
+have a fondness for the place where they have been bred, for the
+habitations they have dwelt in, for the stalls in which they have been
+fed, the pastures they have browsed in, and the wilds in which they have
+roamed. We all know that the natal soil has a sweetness in it beyond the
+harmony of verse. This instinct, I say, that binds all creatures to
+their country, never becomes inert in us, nor ever suffers us to want a
+memory of it. Those, therefore, who seek to fly their country can only
+wish to fly from oppression: and what other proof can you want of this
+oppression, when, as a witness has told you, Colonel Hannay was obliged
+to put bars and guards to confine the inhabitants within the country?
+
+We have seen, therefore, Nature violated in its strongest principles. We
+have seen unlimited and arbitrary exaction avowed, on no pretence of any
+law, rule, or any fixed mode by which these people were to be dealt
+with. All these facts have been proved before your Lordships by costive
+and unwilling witnesses. In consequence of these violent and cruel
+oppressions, a general rebellion breaks out in the country, as was
+naturally to be expected. The inhabitants rise as if by common consent;
+every farmer, every proprietor of land, every man who loved his family
+and his country, and had not fled for refuge, rose in rebellion, as they
+call it. My Lords, they did rebel; it was a just rebellion. Insurrection
+was there just and legal, inasmuch as Colonel Hannay, in defiance of the
+laws and rights of the people, exercised a clandestine, illegal
+authority, against which there can be no rebellion in its proper sense.
+
+As a rebellion, however, and as a rebellion of the most unprovoked
+kind, it was treated by Colonel Hannay; and to one instance of the means
+taken for suppressing it, as proved by evidence before your Lordships, I
+will just beg leave to call your attention. One hundred and fifty of the
+inhabitants had been shut up in one of the mud forts I have mentioned.
+The people of the country, in their rage, attacked the fort, and
+demanded the prisoners; they called for their brothers, their fathers,
+their husbands, who were confined there. It was attacked by the joint
+assault of men and women. The man who commanded in the fort immediately
+cut off the heads of eighteen of the principal prisoners, and tossed
+them over the battlements to the assailants. There happened to be a
+prisoner in the fort, a man loved and respected in his country, and who,
+whether justly or unjustly, was honored and much esteemed by all the
+people. "Give us our Rajah, Mustapha Khan!" (that was the name of the
+man confined,) cried out the assailants. We asked the witness at your
+bar what he was confined for. He did not know; but he said that Colonel
+Hannay had confined him, and added, that he was sentenced to death. We
+desired to see the _fetwah_, or decree, of the judge who sentenced him.
+No,--no such thing, nor any evidence of its having ever existed, could
+be produced. We desired to know whether he could give any account of the
+process, any account of the magistrate, any account of the accuser, any
+account of the defence,--in short, whether he could give any account
+whatever of this man's being condemned to death. He could give no
+account of it, but the orders of Colonel Hannay, who seems to have
+imprisoned and condemned him by his own arbitrary will. Upon the demand
+of Rajah Mustapha by the insurgents being made known to Colonel Hannay,
+he sends an order to the commander of the fort, a man already stained
+with the blood of all the people who were murdered there, that, if he
+had not executed Mustapha Khan, he should execute him immediately. The
+man is staggered at the order, and refuses to execute it, as not being
+directly addressed to him. Colonel Hannay then sends a Captain Williams,
+who has appeared here as an evidence at your bar, and who, together with
+Captain Gordon and Major Macdonald, both witnesses also here, were all
+sub-farmers and actors under Colonel Hannay. This Captain Williams, I
+say, goes there, and, without asking one of those questions which I put
+to the witness at your bar, and desiring nothing but Colonel Hannay's
+word, orders the man to be beheaded; and accordingly he was beheaded,
+agreeably to the orders of Colonel Hannay. Upon this, the rebellion
+blazed out with tenfold fury, and the people declared they would be
+revenged for the destruction of their zemindar.
+
+Your Lordships have now seen this Mustapha Khan imprisoned and sentenced
+to death by Colonel Hannay, without judge and without accuser, without
+any evidence, without the _fetwah_, or any sentence of the law. This man
+is thus put to death by an arbitrary villain, by a more than cruel
+tyrant, Colonel Hannay, the substitute of a ten thousand times more
+cruel tyrant, Mr. Hastings.
+
+In this situation was the country of Oude, under Colonel Hannay, when he
+was removed from it. The knowledge of his misconduct had before induced
+the miserable Nabob to make an effort to get rid of him; but Mr.
+Hastings had repressed that effort by a civil reprimand,--telling him,
+indeed, at the same time, "I do not force you to receive him." (Indeed,
+the Nabob's situation had in it force enough.) The Nabob, I say, was
+forced to receive him; and again he ravages and destroys that devoted
+country, till the time of which I have been just speaking, when he was
+driven out of it finally by the rebellion, and, as you may imagine,
+departed like a leech full of blood.
+
+It is stated in evidence upon your minutes that this bloated leech went
+back to Calcutta; that he was supposed, from a state of debt, (in which
+he was known to have been when he left that city,) to have returned from
+Oude with the handsome sum of 300,000_l._, of which 80,000_l._ was in
+gold mohurs. This is declared to be the universal opinion in India, and
+no man has ever contradicted it. Ten persons have given evidence to that
+effect; not one has contradicted it, from that hour to this, that I ever
+heard of. The man is now no more. Whether his family have the whole of
+the plunder or not,--what partnership there was in this business,--what
+shares, what dividends were made, and who got them,--about all this
+public opinion varied, and we can with certainty affirm nothing; but
+there ended the life and exploits of Colonel Hannay, farmer-general,
+civil officer, and military commander of Baraitch and Goruckpore. But
+not so ended Mr. Hastings's proceedings.
+
+Soon after the return of Colonel Hannay to Calcutta, this miserable
+Nabob received intelligence, which concurrent public fame supported,
+that Mr. Hastings meant to send him up into the country again, on a
+second expedition, probably with some such order as this:--"You have
+sucked blood enough for yourself, now try what you can do for your
+neighbors." The Nabob was not likely to be misinformed. His friend and
+agent, Gobind Ram, was at Calcutta, and had constant access to all Mr.
+Hastings's people. Mr. Hastings himself tells you what instructions
+these vakeels always have to search into and discover all his
+transactions. This Gobind Ram, alarmed with strong apprehensions, and
+struck with horror at the very idea of such an event, apprised his
+master of his belief that Mr. Hastings meant to send Colonel Hannay
+again into the country. Judge now, my lords, what Colonel Hannay must
+have been, from the declaration which I will now read to you, extorted
+from that miserable slave, the Nabob, who thus addresses Mr. Hastings.
+
+"My country and house belong to you; there is no difference. I hope that
+you desire in your heart the good of my concerns. Colonel Hannay is
+inclined to request your permission to be employed in the affairs of
+this quarter. If by any means any matter of this country dependent on me
+should be intrusted to the Colonel, I swear by the Holy Prophet, that I
+will not remain here, but will go from hence to you. From your kindness
+let no concern dependent on me be intrusted to the Colonel, and oblige
+me by a speedy answer which may set my mind at ease."
+
+We know very well that the prisoner at your bar denied his having any
+intention to send him up. We cannot prove them, but we maintain that
+there were grounds for the strongest suspicions that he entertained such
+intentions. He cannot deny the reality of this terror which existed in
+the minds of the Nabob and his people, under the apprehension that he
+was to be sent up, which plainly showed that they at least considered
+there was ground enough for charging him with that intention. What
+reason was there to think that he should not be sent a third time, who
+had been sent twice before? Certainly, none; because every circumstance
+of Mr. Hastings's proceedings was systematical, and perfectly well known
+at Oude.
+
+But suppose it to have been a false report; it shows all that the
+Managers wish to show, the extreme terror which these creatures and
+tools of Mr. Hastings struck into the people of that country. His denial
+of any intention of again sending Colonel Hannay does not disprove
+either the justness of their suspicions or the existence of the terror
+which his very name excited.
+
+My Lords, I shall now call your attention to a part of the evidence
+which we have produced to prove the terrible effects of Colonel Hannay's
+operations. Captain Edwards, an untainted man, who tells you that he had
+passed through that country again and again, describes it as bearing all
+the marks of savage desolation. Mr. Holt says it has fallen from its
+former state,--that whole towns and villages were no longer peopled, and
+that the country carried evident marks of famine. One would have thought
+that Colonel Hannay's cruelty and depredations would have satiated Mr.
+Hastings. No: he finds another military collector, a Major Osborne, who,
+having suffered in his preferment by the sentence of a court-martial,
+whether justly or unjustly I neither know nor care, was appointed to the
+command of a thousand men in the provinces of Oude, but really to the
+administration of the revenues of the country. He administered them much
+in the same manner as Colonel Hannay had done. He, however, transmitted
+to the government at Calcutta a partial representation of the state of
+the provinces, the substance of which was, that the natives were exposed
+to every kind of peculation, and that the country was in a horrible
+state of confusion and disorder. This is upon the Company's records; and
+although not produced in evidence, your Lordships may find it, for it
+has been printed over and over again. This man went up to the Vizier; in
+consequence of whose complaint, and the renewed cries of the people, Mr.
+Hastings was soon obliged to recall him.
+
+But, my Lords, let us go from Major Osborne to the rest of these
+military purveyors of revenue. Your Lordships shall hear the Vizier's
+own account of what he suffered from British officers, and into what a
+state Mr. Hastings brought that country by the agency of officers who,
+under the pretence of defending it, were invested with powers which
+enabled them to commit most horrible abuses in the administration of the
+revenue, the collection of customs, and the monopoly of the markets.
+
+
+    _Copy of a Letter from the Nabob Vizier to the Governor-General._
+
+    "All the officers stationed with the brigade at Cawnpore, Futtyghur,
+    Darunghur, and Furruckabad, and other places, write purwannahs, and
+    give positive orders to the aumils of these places, respecting the
+    grain, &c.; from which conduct the country will become depopulate. I
+    am hopeful from your friendship that you will write to all these
+    gentlemen not to issue orders, &c., to the aumils, and not to send
+    troops into the mahals of the sircar; and for whatever quantity of
+    grain, &c., they may want, they will inform me and the Resident, and
+    we will write it to the aumils, who shall cause it to be sent them
+    every month, and I will deduct the price of them from the tuncaws:
+    this will be agreeable both to me and to the ryots."
+
+
+    _A Copy of a subsequent Letter from the Vizier to Rajah Gobind Ram_.
+
+    "I some time ago wrote you the particulars of the conduct of the
+    officers, and now write them again. The officers and gentlemen who
+    are at Cawnpore, and Futtyghur, and Darunghur, and other places, by
+    different means act very tyrannically and oppressively towards the
+    aumils and ryots and inhabitants; and to whomsoever that requires a
+    dustuck they give it, with their own seal affixed, and send for the
+    aumils and punish them. If they say anything, the gentlemen make use
+    of but two words: one,--_That is for the brigade;_ and the
+    second,--_That is to administer justice_. The particulars of it is
+    this,--that the byparees will bring their grain from all quarters,
+    and sell for their livelihood. There is at present no war to
+    occasion a necessity for sending for it. If none comes, whatever
+    quantity will be necessary every month I will mention to the aumils,
+    that they may bring it for sale: but there is no deficiency of
+    grain. The gentlemen have established gunges for their own
+    advantage, called Colonel Gunge, at Darunghur, Futtyghur, &c. The
+    collection of the customs from all quarters they have stopped, and
+    collected them at their own gunges. Each gunge is rented out at
+    30,000-40,000 rupees, and their collections paid to the gentlemen.
+    They have established gunges where there never were any, and where
+    they were, those they have abolished; 30,000 or 40,000 rupees is the
+    sum they are rented at; the collections, to the amount of a lac of
+    rupees, are stopped. Major Briscoe, who is at Darunghur, has
+    established a gunge which rented out for 45,000 rupees, and has
+    stopped the ghauts round about the byparees; and merchants coming
+    from Cashmere, from Shahjehanabad, and bringing shawls and other
+    goods and spices, &c., from all quarters, he orders to his gunge,
+    and collects the duty from the aumils, gives them a chit, and a
+    guard, who conducts them about five hundred coss: the former duties
+    are not collected. From the conduct at Cawnpore, Futtyghur,
+    Furruckabad, &c., the duties from the lilla of Gora and Thlawa are
+    destroyed, and occasion a loss of three lacs of rupees to the
+    duties; and the losses that are sustained in Furruckabad may be
+    ascertained by the Nabob Muzuffer Jung, to whom every day complaints
+    are made: exclusive of the aumils and collectors, others lodge
+    complaints. Whatever I do, I desire no benefit from it; I am
+    remediless and silent; from what happens to me, I know that worse
+    will happen in other places; the second word, I know, is from their
+    mouths only. This is the case. In this country formerly, and even
+    now, whatever is to be received or paid among the zemindars, ryots,
+    and inhabitants of the cities, and poor people, neither those who
+    can pay or those who cannot pay ever make any excuse to the shroffs;
+    but when they could pay, they did. In old debts of fifty years,
+    whoever complain to the gentlemen, they agree that they shall pay
+    one fourth, and send dustucks and sepoys to all the aumils, the
+    chowdries, and canongoes, and inhabitants of all the towns; they
+    send for everybody, to do them justice, confine them, and say they
+    will settle the business. So many and numerous are these calamities,
+    that I know not how much room it will take up to mention them. Mr.
+    Briscoe is at Darunghur; and the complaints of the aumils arrive
+    daily. I am silent. Now Mr. Middleton is coming here, let the Nabob
+    appoint him for settling all these affairs, that whatever he shall
+    order those gentlemen they will do. From this everything will be
+    settled, and the particulars of this quarter will be made known to
+    the Nabob. I have written this, which you will deliver to the
+    Governor, that everything may be settled; and when he has understood
+    it, whatever is his inclination, he will favor me with it. The Nabob
+    is master in this country, and is my friend; there is no
+    distinction."
+
+
+    _Copy of another Letter, entered upon the Consultation of the 4th of
+    June, 1781._
+
+    "I have received your letter, requesting leave for a battalion to be
+    raised by Captain Clark on the same footing as Major Osborne's was,
+    agreeable to the requests and complaints of Ishmael Beg, the aumil
+    of Allahabad, &c., and in compliance with the directions of the
+    Council. You are well acquainted with the particulars and
+    negotiation of Ishmael Beg, and the nature of Mr. Osborne's
+    battalion. At the beginning of the year 1186 (1779) the affairs of
+    Allahabad were given on a lease of three years to Ishmael Beg,
+    together with the purgunnahs Arreel and Parra; and I gave orders for
+    troops to be stationed and raised, conformable to his request.
+    Ishmael Beg accordingly collected twelve hundred peons, which were
+    not allowed to the aumil of that place in the year 1185. The reason
+    why I gave permission for the additional expense of twelve hundred
+    peons was, that he might be enabled to manage the country with ease,
+    and pay the money to government regularly. I besides sent Mr.
+    Osborne there to command in the mahals belonging to Allahabad, which
+    were in the possession of Rajah Ajeet Sing; and he accordingly took
+    charge. Afterwards, in obedience to the orders of the
+    Governor-General, Mr. Hastings, Jelladut Jung, he was recalled, and
+    the mahals placed, as before, under Rajah Ajeet Sing. I never sent
+    Mr. Osborne to settle the concerns of Allahabad, for there was no
+    occasion for him; but Mr. Osborne, of himself, committed
+    depredations and rapines within Ishmael Beg's jurisdiction. Last
+    year, the battalion, which, by permission of General Sir Eyre Coote,
+    was sent, received orders to secure and defend Ishmael Beg against
+    the encroachments of Mr. Osborne; for the complaints of Ishmael Beg
+    against the violences of Mr. Osborne had reached the General and Mr.
+    Purling; and the Governor and gentlemen of Council, at my request,
+    recalled Mr. Osborne. This year, as before, the collections of
+    Arreel and Parra remain under Ishmael Beg. In those places, some of
+    the talookdars and zemindars, who had been oppressed and ill-treated
+    by Mr. Osborne, had conceived ideas of rebellion."
+
+Here, my Lords, you have an account of the condition of Darunghur,
+Futtyghur, Furruckabad, and of the whole line of our military stations
+in the Nabob's dominions. You see the whole was one universal scene of
+plunder and rapine. You see all this was known to Mr. Hastings, who
+never inflicted any punishments for all this horrible outrage. You see
+the utmost he has done is merely to recall one man, Major Osborne, who
+was by no means the only person deeply involved in these charges. He
+nominated all these people; he has never called any of them to an
+account. Shall I not, then, call him their captain-general? Shall not
+your Lordships call him so? And shall any man in the kingdom call him by
+any other name? We see all the executive, all the civil and criminal
+justice of the country seized on by him. We see the trade and all the
+duties seized upon by his creatures. We see them destroying established
+markets, and creating others at their pleasure. We see them, in the
+country of an ally and in a time of peace, producing all the
+consequences of rapine and of war. We see the country ruined and
+depopulated by men who attempt to exculpate themselves by charging their
+unhappy victims with rebellion.
+
+And now, my Lords, who is it that has brought to light all these
+outrages and complaints, the existence of which has never been denied,
+and for which no redress was ever obtained, and no punishment ever
+inflicted? Why, Mr. Hastings himself has brought them before you; they
+are found in papers which he has transmitted. God, who inflicts
+blindness upon great criminals, in order that they should meet with the
+punishment they deserve, has made him the means of bringing forward this
+scene, which we are maliciously said to have falsely and maliciously
+devised. If any one of the ravages [charges?] contained in that long
+catalogue of grievances is false, Warren Hastings is the person who must
+answer for that individual falsehood. If they are generally false, he
+is to answer for the false and calumniating accusation; and if they are
+true, my Lords, he only is answerable, for he appointed those ministers
+of outrage, and never called them to account for their misconduct.
+
+Let me now show your Lordships the character that Mr. Hastings gives of
+all the British officers. It is to be found in an extract from the
+Appendix to that part of his Benares Narrative in which he comments upon
+the treaty of Chunar. Mark, my Lords, what the man himself says of the
+whole military service.
+
+"Notwithstanding the great benefit which the Company would have derived
+from such an augmentation of their military force as these troops
+constituted, ready to act on any emergency, prepared and disciplined
+without any charge on the Company, as the institution professed, until
+their actual services should be required, I have observed some evils
+growing out of the system, which, in my opinion, more than
+counterbalanced those advantages, had they been realized in their
+fullest effect. The remote stations of these troops, placing the
+commanding officers beyond the notice and control of the board, afforded
+too much opportunity and temptation for unwarrantable emoluments, and
+excited the contagion of peculation and rapacity throughout the whole
+army. A most remarkable and incontrovertible proof of the prevalence of
+this spirit has been seen in the court-martial upon Captain Erskine,
+where the court, composed of officers of rank and respectable
+characters, unanimously and honorably, most honorably, acquitted him
+upon an acknowledged fact which in times of stricter discipline would
+have been deemed a crime deserving the severest punishment."
+
+I will now call your Lordships' attention to another extract from the
+same comment of Mr. Hastings, with respect to the removal of the
+Company's servants, civil and military, from the court and service of
+the Vizier.
+
+"I was actuated solely by motives of justice to him and a regard to the
+honor of our national character. In removing those gentlemen I diminish
+my own influence, as well as that of my colleagues, by narrowing the
+line of patronage; and I expose myself to obloquy and resentment from
+those who are immediately affected by the arrangement, and the long
+train of their friends and powerful patrons. But their numbers, their
+influence, and the enormous amount of their salaries, pensions, and
+emoluments, were an intolerable burden on the revenues and authority of
+the Vizier, and exposed us to the envy and resentment of the whole
+country, by excluding the native servants and adherents of the Vizier
+from the rewards of their services and attachment."
+
+My Lords, you have here Mr. Hastings's opinion of the whole military
+service. You have here the authority and documents by which he supports
+his opinion. He states that the contagion of peculation had tainted all
+the frontier stations, which contain much the largest part of the
+Company's army. He states that this contagion had tainted the whole
+army, _everywhere:_ so that, according to him, there was, throughout the
+Indian army, an universal taint of peculation. My Lords, peculation is
+not a military vice. Insubordination, want of attention to duty, want of
+order, want of obedience and regularity, are military vices; but who
+ever before heard of peculation being a military vice? In the case
+before you, it became so by employing military men as farmers of
+revenue, as masters of markets and of gunges. This departure from the
+military character and from military duties introduced that peculation
+which tainted the army, and desolated the dominions of the Nabob Vizier.
+
+I declare, when I first read the passage which has been just read to
+your Lordships, in the infancy of this inquiry, it struck me with
+astonishment that peculation should _at all_ exist as a military vice;
+but I was still more astonished at finding Warren Hastings charging the
+_whole_ British army with being corrupted by this base and depraved
+spirit, to a degree which tainted even their judicial character. This,
+my Lords, is a most serious matter. The judicial functions of military
+men are of vast importance in themselves; and, generally speaking, there
+is not any tribunal whose members are more honorable in their conduct
+and more just in their decisions than those of a court-martial. Perhaps
+there is not a tribunal in this country whose reputation is really more
+untainted than that of a court-martial. It stands as fair, in the
+opinion both of the army and of the public, as any tribunal, in a
+country where _all_ tribunals stand fair. But in India, this unnatural
+vice of peculation, which has no more to do with the vices of a military
+character than with its virtues, this venomous spirit, has pervaded the
+members of military tribunals to such an extent, that they acquit,
+honorably acquit, _most_ honorably acquit a man, "upon an acknowledged
+fact which in times of stricter discipline would have been deemed a
+crime deserving the severest punishment."
+
+Who says all this, my Lords? Do I say it? No: it is Warren Hastings who
+says it. He records it. He gives you his vouchers and his evidence, and
+he draws the conclusion. He is the criminal accuser of the British army.
+He who sits in that box accuses the whole British army in India. He has
+declared them to be so tainted with peculation, from head to foot, as to
+have been induced to commit the most wicked perjuries, for the purpose
+of bearing one another out in their abominable peculations. In this
+unnatural state of things, and whilst there is not one military man on
+these stations of whom Mr. Hastings does not give this abominably
+flagitious character, yet every one of them have joined to give him the
+benefit of their testimony for his honorable intentions and conduct.
+
+In this tremendous scene, which he himself exposes, are there no signs
+of this captain-generalship which I have alluded to? Are there no signs
+of this man's being a captain-general of iniquity, under whom all the
+spoilers of India were paid, disciplined, and supported? I not only
+charge him with being guilty of a thousand crimes, but I assert that
+there is not a soldier or a civil servant in India whose culpable acts
+are not owing to this man's example, connivance, and protection.
+Everything which goes to criminate them goes directly against the
+prisoner. He puts them in a condition to plunder; he suffered no native
+authority or government to restrain them; and he never called a man to
+an account for these flagitious acts which he has thought proper to
+bring before his country in the most solemn manner and upon the most
+solemn occasion.
+
+I verily believe, in my conscience, his accusation is not true, in the
+excess, in the generality and extravagance in which he charges it. That
+it is true in a great measure we cannot deny; and in that measure we, in
+our turn, charge him with being the author of all the crimes which he
+denounces; and if there is anything in the charge beyond the truth, it
+is he who is to answer for the falsehood.
+
+I will now refer your Lordships to his opinion of the civil service, as
+it is declared and recorded in his remarks upon the removal of the
+Company's civil servants by him from the service of the Vizier.--"I
+was," says he, "actuated solely by motives of justice to him [the Nabob
+of Oude], and a regard to the honor of our national character."--Here,
+you see, he declares his opinion that in Oude the civil servants of the
+Company had destroyed the national character, and that therefore they
+ought to be recalled.--"By removing these people," he adds, "I diminish
+my patronage."--But I ask, How came they there? Why, through this
+patronage. He sent them there to suck the blood which the military had
+spared. He sent these civil servants to do ten times more mischief than
+the military ravagers could do, because they were invested with greater
+authority.--"If," says he, "I recall them from thence, I lessen my
+patronage."--But who, my Lords, authorized him to become a patron? What
+laws of his country justified him in forcing upon the Vizier the civil
+servants of the Company? What treaty authorized him to do it? What
+system of policy, except his own wicked, arbitrary system, authorized
+him to act thus?
+
+He proceeds to say, "I expose myself to obloquy and resentment from
+those who are immediately affected by the arrangement, and the long
+train of their friends and powerful patrons."--My Lords, it is the
+constant burden of his song, that he cannot do his duty, that he is
+fettered in everything, that he fears a thousand mischiefs to happen to
+him,--not from his acting with carefulness, economy, frugality, and in
+obedience to the laws of his country, but from the very reverse of all
+this. Says he, "I am afraid I shall forfeit the favor of the powerful
+patrons of those servants in England, namely, the Lords and Commons of
+England, if I do justice to the suffering people of this country."
+
+In the House of Commons there are undoubtedly powerful people who may be
+supposed to be influenced by patronage; but the higher and more powerful
+part of the country is more directly represented by your Lordships than
+by us, although we have of the first blood of England in the House of
+Commons. We do, indeed, represent, by the knights of the shires, the
+landed interest; by our city and borough members we represent the
+trading interest; we represent the whole people of England collectively.
+But neither blood nor power is represented so fully in the House of
+Commons as that order which composes the great body of the people,--the
+protection of which is our peculiar duty, and to which it is our glory
+to adhere. But the dignities of the country, the great and powerful, are
+represented eminently by your Lordships. As we, therefore, would keep
+the lowest of the people from the contagion and dishonor of peculation
+and corruption, and above all from exercising that vice which, among
+commoners, is unnatural as well as abominable, the vice of tyranny and
+oppression, so we trust that your Lordships will clear yourselves and
+the higher and more powerful ranks from giving the smallest countenance
+to the system which we have done our duty in denouncing and bringing
+before you.
+
+My Lords, you have heard the account of the civil service. Think of
+their numbers, think of their influence, and the enormous amount of
+their salaries, pensions, and emoluments! They were, you have heard, an
+intolerable burden on the revenues and authority of the Vizier; and they
+exposed us to the envy and resentment of the whole country, by excluding
+the native servants and adherents of the prince from the just reward of
+their services and attachments. Here, my Lords, is the whole civil
+service brought before you. They usurp the country, they destroy the
+revenues, they overload the prince, and they exclude all the nobility
+and eminent persons of the country from the just reward of their
+service.
+
+Did Mr. Francis, whom I saw here a little while ago, send these people
+into that country? Did General Clavering, or Colonel Monson, whom he
+charges with this system, send them there? No, they were sent by
+himself; and if one was sent by anybody else for a time, he was soon
+recalled: so that he is himself answerable for all the peculation which
+he attributes to the civil service. You see the character given of that
+service; you there see their accuser, you there see their defender, who,
+after having defamed both services, military and civil, never punished
+the guilty in either, and now receives the prodigal praises of both.
+
+I defy the ingenuity of man to show that Mr. Hastings is not the defamer
+of the service. I defy the ingenuity of man to show that the honor of
+Great Britain has not been tarnished under his patronage. He engaged to
+remove all these bloodsuckers by the treaty of Chunar; but he never
+executed that treaty. He proposed to take away the temporary brigade;
+but he again established it. He redressed no grievance; he formed no
+improvements in the government; he never attempted to provide a remedy
+without increasing the evil tenfold. He was the primary and sole cause
+of all the grievances, civil and military, to which the unhappy natives
+of that country were exposed; and he was the accuser of all the
+immediate authors of those grievances, without having punished any one
+of them. He is the accuser of them all. But the only person whom he
+attempted to punish was that man who dared to assert the authority of
+the Court of Directors, and to claim an office assigned to him by them.
+
+I will now read to your Lordships the protest of General Clavering
+against the military brigade.--"Taking the army from the Nabob is an
+infringement of the rights of an independent prince, leaving only the
+name and title of it without the power. It is taking his subjects from
+him, against every law of Nature and of nations."
+
+I will next read to your Lordships a minute of Mr. Francis's.--"By the
+foregoing letter from Mr. Middleton it appears that he has taken the
+government of the Nabob's dominions directly upon himself. I was not a
+party to the resolutions which preceded that measure, and will not be
+answerable for the consequences of it."
+
+The next paper I will read is one introduced by the Managers, to prove
+that a representation was made by the Nabob respecting the expenses of
+the gentlemen resident at his court, and written after the removal
+before mentioned.
+
+
+    _Extract of a Letter from the Vizier to Mr. Macpherson, received
+    the 21st April, 1785._
+
+    "With respect to the expenses of the gentlemen who are here, I have
+    before written in a covered manner; I now write plainly, that I have
+    no ability to give money to the gentlemen, because I am indebted
+    many lacs of rupees to the bankers for the payment of the Company's
+    debt. At the time of Mr. Hastings's departure, I represented to him
+    that I had no resources for the expenses of the gentlemen. Mr.
+    Hastings, having ascertained my distressed situation, told me that
+    after his arrival in Calcutta he would consult with the Council, and
+    remove from hence the expenses of the gentlemen, and recall every
+    person except the gentlemen in office here. At this time that all
+    the concerns are dependent upon you, and you have in every point
+    given ease to my mind, according to Mr. Hastings's agreement, I hope
+    that the expenses of the gentlemen maybe removed from me, and that
+    you may recall every person residing here beyond the gentlemen in
+    office. Although Major Palmer does not at this time demand anything
+    for the gentlemen, and I have no ability to give them anything, yet
+    the custom of the English gentlemen is, when they remain here, they
+    will in the end ask for something. This is best, that they should be
+    recalled."
+
+I think so, too; and your Lordships will think so with me; but Mr.
+Hastings, who says that he himself thought thus in September, 1781, and
+engaged to recall these gentlemen, was so afraid of their powerful
+friends and patrons here, that he left India, and left all that load of
+obloquy upon his successors. He left a Major Palmer there, in the place
+of a Resident: a Resident of his own, as your Lordships must see; for
+Major Palmer was no Resident of the Company's. This man received a
+salary of about 23,000_l._ a year, which he declared to be less than his
+expenses; by which we may easily judge of the enormous salaries of those
+who make their fortunes there. He was left by Mr. Hastings as his
+representative of peculation, his representative of tyranny. He was the
+second agent appointed to control all power ostensible and unostensible,
+and to head these gentlemen whose "custom," the Nabob says, "was in the
+end to ask for money." Money they must have; and there, my Lords, is the
+whole secret.
+
+       *       *       *       *       *
+
+I have this day shown your Lordships the entire dependence of Oude on
+the British empire. I have shown you how Mr. Hastings usurped all power,
+reduced the prince to a cipher, and made of his minister a mere creature
+of his own,--how he made the servants of the Company dependent on his
+own arbitrary will, and considered independence a proof of corruption.
+It has been likewise proved to your Lordships that he suffered the army
+to become an instrument of robbery and oppression, and one of its
+officers to be metamorphosed into a farmer-general to waste the country
+and embezzle its revenues. You have seen a clandestine and fraudulent
+system, occasioning violence and rapine; and you have seen the prisoner
+at the bar acknowledging and denouncing an abandoned spirit of rapacity
+without bringing its ministers to justice, and pleading as his excuse
+the fear of offending your Lordships and the House of Commons. We have
+shown you the government, revenue, commerce, and agriculture of Oude
+ruined and destroyed by Mr. Hastings and his creatures. And to wind up
+all, we have shown you an army so corrupted as to pervert the
+fundamental principles of justice, which are the elements and basis of
+military discipline. All this, I say, we have shown you; and I cannot
+believe that your Lordships will consider that we have trifled with your
+time, or strained our comments one jot beyond the strict measure of the
+text. We have shown you a horrible scene, arising from an astonishing
+combination of horrible circumstances. The order in which you will
+consider these circumstances must be left to your Lordships.
+
+At present I am not able to proceed further. My next attempt will be to
+bring before you the manner in which Mr. Hastings treated movable and
+immovable property in Oude, and by which he has left nothing undestroyed
+in that devoted country.
+
+
+END OF VOL. XI.
+
+
+
+
+
+
+End of the Project Gutenberg EBook of The Works of the Right Honourable
+Edmund Burke, Vol. XI. (of 12), by Edmund Burke
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