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diff --git a/18218.txt b/18218.txt new file mode 100644 index 0000000..0c9804a --- /dev/null +++ b/18218.txt @@ -0,0 +1,12579 @@ +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. 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